United States
– measures concerning the importation, marketing and sale of tuna and tuna
products
recourse to article 21.5 of the dsu by the united
states
United States
– measures concerning the importation, marketing and sale of tuna and tuna
products
second recourse to article 21.5 of the dsu by mexico
reportS of the panels
TABLE OF CONTENTS
1 Introduction.. 14
1.1 Complaint
by the United States. 14
1.1.1 Establishment
and composition of the Panel requested by the United States. 14
1.2 Complaint
by Mexico. 14
1.2.1 Request
for consultations. 14
1.2.2 Establishment
and composition of the Panel requested by Mexico. 14
1.3 Panel
proceedings. 15
1.3.1 General 15
1.3.2 Procedures
for a partially open meeting. 15
1.3.3 Additional
working procedures on Business Confidential Information (BCI) 16
2 Factual aspects. 17
2.1 The
measure at issue. 17
3 Parties' requests for
findings and recommendations. 17
4 Arguments of the parties. 18
5 Arguments of the thiRd
parties. 18
6 Interim review... 18
6.1 Requests
from the United States. 18
6.2 Requests
from Mexico. 23
7 Findings. 31
7.1 Introduction. 31
7.1.1 Procedural
overview.. 31
7.1.2 Format
of these Reports. 31
7.2 Preliminary
Issue: United States' request to lift the confidentiality of its statements at
the Panels' substantive meetings with the parties and third parties. 32
7.2.1 Procedural
background. 32
7.2.2 Merits
of the United States' request for a partially open meeting. 32
7.3 Preliminary
Issue: United States' failure to request consultations. 37
7.4 The
measure at issue. 39
7.4.1 Elements
of the measure at issue. 39
7.4.2 Description
of the measure at issue. 41
7.5 Claim
under Article 2.1 of the TBT Agreement 46
7.5.1 Introduction:
"technical regulation", "like products", and
"detrimental impact". 46
7.5.2 "Legitimate
regulatory distinction": the applicable legal standard. 48
7.6 Burden
and standard of proof 62
7.7 Factual
findings. 64
7.7.1 Introduction. 64
7.7.1.1 Findings
made in previous proceedings. 64
7.7.1.1.1 Previous
findings regarding the appropriate methodology to be used. 64
7.7.1.1.2 Previous
factual findings: observable and unobservable harms to dolphins. 66
7.7.1.2 Preliminary
issues about the methodology to assess evidence. 68
7.7.1.2.1 The
methodology that we should use to conduct the assessment of the different risk
profiles of the relevant fisheries. 68
7.7.1.2.1.1 General
approach. 69
7.7.1.2.1.2 Use
of a standardized benchmark. 70
7.7.1.2.1.3 PBR
methodology. 71
7.7.1.2.1.4 Absolute
levels of adverse effects. 74
7.7.1.2.1.5 Per
set methodology. 75
7.7.1.2.1.6 Per
set data contained in Exhibit USA-179 Rev. 79
Issues regarding the numerical
calculations. 80
Issues regarding the reliability of
the exhibits supporting the numerical calculations. 82
7.7.1.2.1.7 Overall
conclusion. 84
7.7.1.2.2 Differences
between different kinds of harms posed to dolphins. 84
7.7.1.2.3 Difficulties
in assessing the data on the record. 86
7.7.2 Findings
on the risk profiles of individual fishing methods. 87
7.7.2.1 Setting
on dolphins. 87
7.7.2.1.1 Introduction. 87
7.7.2.1.2 Findings
made in the previous proceedings. 87
7.7.2.1.3 Panels'
assessment in the present proceedings. 90
7.7.2.2 Purse
seine fishing without setting on dolphins. 100
7.7.2.2.1 Introduction. 100
7.7.2.2.2 Findings
made in the previous proceedings. 101
7.7.2.2.3 Panels'
assessment in the present proceedings. 102
7.7.2.2.4 Overall
conclusion. 120
7.7.2.3 Gillnet
fishing. 120
7.7.2.3.1 Introduction. 120
7.7.2.3.2 Findings
made in the previous proceedings. 126
7.7.2.3.3 Panels'
assessment in the present proceedings. 130
7.7.2.4 Longline
fishing. 138
7.7.2.4.1 Introduction. 138
7.7.2.4.2 Panels'
assessment in the present proceedings. 139
7.7.2.5 Trawl
fishing. 144
7.7.2.5.1 Introduction. 144
7.7.2.5.2 Panels'
assessment in the present proceedings. 145
7.7.2.6 Tuna
handlining. 147
7.7.2.6.1 Introduction. 147
7.7.2.6.2 Panels'
assessment in the present proceedings. 148
7.7.2.7 Pole
and line fishing. 151
7.7.2.7.1 Introduction. 151
7.7.2.7.2 Panels'
assessment in the present proceedings. 151
7.7.2.8 Overall
relative assessment of the method-specific findings. 152
7.8 Whether
the 2016 Tuna Measure is consistent with Article 2.1 of the TBT Agreement 153
7.8.1 Introduction. 153
7.8.2 Eligibility
criteria. 155
7.8.3 The
certification requirements. 157
7.8.4 The
tracking and verification requirements. 172
7.8.4.1 Introduction. 172
7.8.4.2 Arguments
of the parties in the present proceedings. 174
7.8.4.3 Differences
between the NOAA and the AIDCP regimes with respect to tracking and
verification 177
7.8.4.4 Panels'
assessment 180
7.8.5 The
determination provisions. 185
7.8.6 Overall
assessment of the consistency of the 2016 Tuna Measure with Article 2.1 of the
TBT Agreement 191
7.9 Whether
the 2016 Tuna Measure is consistent with Articles I:1 and III:4, and complies
with the requirements of Article XX, of the GATT 1994. 194
7.9.1 Findings
made in the previous proceedings. 194
7.9.2 Assessment
of Mexico's claims under Articles I:1, III:4, and the United States' defence XX
of the GATT 1994 in the present proceedings. 196
8 Conclusions and
Recommendation(s). 200
8.1 Proceedings
brought by the United States: Conclusions and Recommendations. 201
8.2 Proceedings
brought by Mexico: Conclusions and Recommendations. 202