United States – measures concerning the
importation, marketing and sale of tuna and tuna products
recourse to article 21.5 of the dsu by Mexico
NOTIFICATION OF AN APPEAL BY the united states
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
The following communication, dated
5 June 2015, from the delegation of the United States, is being
circulated to Members.
_______________
1.
Pursuant to
Article 16 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes ("DSU")
and to Rule 20 of the Working Procedures for
Appellate Review, the United States hereby notifies its decision to
appeal to the Appellate Body certain issues of law covered in the Report of the
Panel in United States – Measures Concerning the
Importation, Marketing and Sale of Tuna and Tuna Products: Recourse to
Article 21.5 of the DSU by Mexico (WT/DS381/RW) ("Panel
Report") and certain legal interpretations developed by the Panel.
2.
The United States
seeks review by the Appellate Body of the Panel's findings and conclusion that
the amended U.S. dolphin safe labeling measure is inconsistent with Article 2.1
of the Agreement on Technical Barriers to Trade
(the "TBT Agreement") because it accords less favorable treatment to
Mexico's tuna and tuna product exports.[1] This conclusion is in error and is based on erroneous findings on
issues of law and legal interpretations, including:
(a) the Panel's
finding that the certification requirements of the amended measure modify the
conditions of competition in the U.S. market to the detriment of like Mexican
tuna and tuna products because they impose a lighter burden on tuna and tuna
product caught outside the Eastern Tropical Pacific (ETP) large purse seine
fishery than on tuna and tuna product caught within it.[2]
(b) the
Panel's finding that the detrimental impact caused by the certification
requirements does not stem exclusively from legitimate regulatory distinctions
because the requirements for tuna caught outside the ETP large purse seine
fishery may result in inaccurate information being passed to consumers.[3]
(c) the
Panel's finding that the detrimental impact caused by the certification requirements
does not stem exclusively from legitimate regulatory distinctions due to the
design of the determination provisions.[4]
(d) the
Panel's finding that the tracking and verification requirements of the amended
measure modify the conditions of competition in the U.S. market to the
detriment of like Mexican tuna and tuna products because they impose a lesser
burden on tuna and tuna product caught outside the ETP large purse seine
fishery than on tuna and tuna product caught within it.[5]
(e) the
Panel's finding that the detrimental impact caused by the tracking and
verification requirements does not stem exclusively from legitimate regulatory
distinctions.[6]
3.
The United States
also seeks review by the Appellate Body of the Panel's findings and conclusions
that the amended U.S. dolphin safe labeling measure is inconsistent with
Articles I:1 and III:4 of the General Agreement on
Tariffs and Trade 1994 (the "GATT 1994")[7] and, if the Appellate Body should not reverse the Panel's finding
with respect to either Article I:1 or Article III:4, then the United
States seeks review of the Panel's findings that the amended measure is not
applied consistently with the Article XX chapeau.[8] These conclusions are in error and are based on erroneous findings
on issues of law and legal interpretations, including:
(a) the
Panel's finding that the certification requirements of the amended measure are
inconsistent with Article I:1 of the GATT 1994 because they require
observer coverage for purse seine vessels in the ETP but not for vessels in
other fisheries.[9]
(b) the
Panel's finding that the tracking and verification requirements of the amended
measure are inconsistent with Article I:1 of the GATT 1994 because
they impose a lesser burden on vessels outside the ETP large purse seine
fishery than on vessels within it.[10]
(c) the
Panel's finding that the certification requirements of the amended measure are
inconsistent with Article III:4 of the GATT 1994 because they impose a
lighter burden on tuna caught outside the ETP large purse seine fishery than
inside it.[11]
(d) the
Panel's finding that the tracking and verification requirements of the amended
measure are inconsistent with Article III:4 of the GATT 1994 because
they impose a lighter burden on tuna caught outside the ETP large purse seine
fishery than inside it.[12]
(e) the
Panel's finding that the certification requirements of the amended measure
impose "arbitrary and unjustifiable discrimination between countries where
the same conditions prevail," contrary to the chapeau of Article XX
of the GATT 1994, because the requirements for tuna and tuna product
caught outside the ETP large purse seine fishery make it easier for
non-dolphin-safe tuna to be incorrectly labeled as dolphin safe.[13]
(f) the
Panel's finding that the certification requirements of the amended measure
impose "arbitrary and unjustifiable discrimination between countries where
the same conditions prevail," contrary to the chapeau of Article XX
of the GATT 1994, due to the design of the determination provisions.[14]
(g) the
Panel's finding that the tracking and verification requirements impose "arbitrary
and unjustifiable discrimination between countries where the same conditions
prevail" contrary to the chapeau of Article XX of the GATT 1994
because they impose a lesser burden on tuna caught other than in the ETP large
purse seine fishery.[15]
4.
The United States
also requests the Appellate Body to find that the Panel failed to make an
objective assessment of the matter before it, as called for by Article 11
of the DSU, with regard to the so-called "determination provisions."[16] The Panel drew its conclusions with regard to these provisions
based on factual findings that were without a sufficient evidentiary basis,
without assessing the totality of the evidence, and without adequate
explanation.[17]
5.
In the event that
Mexico appeals the finding by the Panel that the amended measure, including the
three challenged elements, is provisionally justified under subparagraph (g) of
Article XX of the GATT 1994 and the Appellate Body reverses the
finding with respect to any of the three challenged elements, the United States
seeks review of the Panel's exercise of judicial economy with respect to the
U.S. defense under Article XX(b) of the GATT 1994.[18] The United States submits that there are sufficient facts
on the record for the Appellate Body to complete the analysis of the amended
measure, including the three challenged elements, and find that the measure is
provisionally justified under Article XX(b).
__________
[1] See, e.g., Panel Report, paras. 7.233,
7.263, 8.2(b) (with respect to the certification requirements); id. paras. 7.400, 8.2(c) (with respect to the tracking and
verification requirements).
[2] See, e.g., Panel Report, paras. 7.162,
7.170, 7.178-179, 7.454, 7.500, 8.2(b).
The United States considers that the Panel erred as a matter of law with
respect to this finding. However, to the
extent that the Appellate Body considers the question of the meaning of
municipal law in this instance to be a question of fact, the Panel acted
inconsistently with Article 11 of the DSU in concluding that the certification
requirements apply to all tuna
and tuna product.
[3] See e.g., Panel Report, paras.
7.233-7.234, 7.246, 7.598-7.602, 8.2(b).
[4] See e.g., Panel Report, paras.
7.258-263, 7.283, 8.2(b).
[5] See, e.g., Panel Report, paras.
7.369-7.372, 7.382, 7.462-7.463, 7.502, 8.2(c).
The United States considers that the Panel erred as a matter of law with
respect to this finding. However, to the
extent that the Appellate Body considers the question of the meaning of
municipal law in this instance to be a question of fact, the Panel acted
inconsistently with Article 11 of the DSU in concluding that the tracking and
verification requirements apply to all tuna
and tuna product.
[6] See, e.g., Panel Report, paras. 7.392,
7.395, 7.397-7.402, 8.2(c).
[7] See, e.g., Panel Report paras.
7.455-456, 7.500-7.501, 7.504, 8.3(b) (with respect to the certification
requirements); id. paras. 7.464-465,
7.502-7.504, 8.3(c) (with respect to the tracking and verification requirements).
[8] See, e.g., Panel Report, paras.
7.603-7.605, 8.5(b) (with respect to the certification requirements); id. paras. 7.611, 8.5(c) (with respect to the tracking
and verification requirements).
[9] See, e.g., Panel Report, paras.
7.455-7.456, 8.3(b).
[10] See, e.g., Panel Report, paras.
7.463-7.465, 8.3(c).
[11] See, e.g., Panel Report, paras.
7.500-7.501, 8.3(b).
[12] See, e.g., Panel Report, paras.
7.502-7.503, 8.3(c).
[13] See, e.g., Panel Report, paras.
7.598-7.603, 7.605, 8.5(b).
[14] See, e.g., Panel Report, paras.
7.604-7.605, 7.607, 8.5(b).
[15] See, e.g., Panel Report, paras.
7.610-7.611, 8.5(c).
[16] See Panel Report, paras. 7.258-7.263,
7.604.
[17] See, e.g., Panel Report, paras.
7.258-7.263, 7.604.
[18] See Panel Report, paras. 7.543-7.545.