This summary has been prepared by the Secretariat under its own responsibility. The summary is for general information only and is not intended to affect the rights and obligations of Members.
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Current status back to top
Key facts back to top
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Agreements cited:
(as cited in request for consultations) |
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| Panel Report circulated: |
15 September 2011 |
Summary of the dispute to date back to top
The summary below was up-to-date at
Consultations
Complaint by Mexico.
On 24 October 2008, Mexico requested consultations with the United States with respect to the following measures: (i) the United States Code, Title 16, Section 1385 (“Dolphin Protection Consumer Information Act”), (ii) the Code of Federal Regulations, Title 50, Section 216.91 (“Dolphin‑safe labeling standards”) and Section 216.92 (“Dolphin‑safe requirements for tuna harvested in the ETP [Eastern Tropical Pacific Ocean] by large purse seine vessels”) and (iii) the ruling in Earth Island Institute v. Hogarth, 494 F.3d 757 (9th Cir. 2007).
Mexico alleged that the measures at issue, which establish the conditions for use of a “dolphin‑safe” label on tuna products and condition the access to the US Department of Commerce official dolphin-safe label upon bringing certain documentary evidence that varies depending on the area where tuna contained in the tuna product is harvested and the fishing method by which it is harvested are inconsistent, inter alia, with Articles I:1 and III:4 of the GATT 1994 and Article 2.1, 2.2 and 2.4 of the TBT Agreement.
On 6 November 2008, the European Communities requested to join the consultations. On 7 November 2008, Australia requested to join the consultations.
On 9 March 2009, Mexico requested the establishment of a panel. At its meeting on 20 March 2009, the DSB deferred the establishment of a panel.
Panel and Appellate Body proceedings
At its meeting on 20 April 2009, the DSB established a panel. Argentina, Australia, China, Ecuador, the European Communities, Guatemala, Japan, Korea, New Zealand, Chinese Taipei and Turkey reserved their third-party rights. Brazil, Canada, Thailand and Venezuela subsequently reserved their third-party rights. On 2 December 2009, Mexico requested the Director-General to determine the composition of the panel. On 14 December 2009, the Director-General composed the panel. On 15 June 2010, the Chairman of the panel informed the DSB that in accordance with the timetable adopted by the panel after consultations with the parties to the dispute it envisaged to issue its final report to the parties in February 2011.
Following the death of Mr Sivakant Tiwari on 26 July 2010, the parties agreed on a new member of the Panel on 12 August 2010.
On 24 February 2011, the Chairman of the panel informed the DSB that due to the modification of the timetable required as a result of the unforeseen change in the composition of the Panel, as well as the complexity of a number of issues raised in this case, the Panel expected to issue its final report to the parties by 8 June 2011.
On 15 September 2011, the panel report was circulated to Members.
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| Summary of key findings
- This dispute concerns the following measures: (i) the United States Code, Title 16, Section 1385 (“Dolphin Protection Consumer Information Act”), (ii) the Code of Federal Regulations, Title 50, Section 216.91 (“Dolphin‑safe labeling standards”) and Section 216.92 (“Dolphin‑safe requirements for tuna harvested in the ETP [Eastern Tropical Pacific Ocean] by large purse seine vessels”) and (iii) the ruling in Earth Island Institute v. Hogarth, 494 F.3d 757 (9th Cir. 2007). These measures establish the conditions for use of a “dolphin‑safe” label on tuna products. The measures condition the access to the US Department of Commerce official dolphin-safe label upon bringing certain documentary evidence that varies depending on the area where tuna contained in the tuna product is harvested and the fishing method by which it is harvested.
- Mexico's main claims were that the measures were discriminatory, and that they were also unnecessary.
- The Panel first determined whether the US dolphin-safe labelling provisions constitute a technical regulation under the TBT Agreement. The Panel found that they do, and in particular that the measures are mandatory within the meaning of Annex 1.1 of the TBT Agreement. One of the members of the Panel expressed a dissenting opinion on this particular issue but sided with the majority for the rest of the report. The Panel then examined Mexico's claims under Articles 2.1, 2.2, and 2.4 of the TBT Agreement.
- The Panel rejected Mexico's first claim by finding that the US dolphin-safe labelling provisions do not discriminate against Mexican tuna products and are therefore not inconsistent with Article 2.1 of the TBT Agreement. Despite finding that Mexican tuna products are like tuna products originating in the United States or any other country within the meaning of Article 2.1 of the TBT Agreement, the Panel concluded that Mexican tuna products are not afforded less favourable treatment than tuna products of US and other origins in respect of the US dolphin safe labelling provisions on the basis of their origin.
- With respect to Mexico's claim under Article 2.2 of the TBT Agreement, the Panel found that Mexico had demonstrated that the US dolphin-safe labelling provisions are more trade-restrictive than necessary to fulfil the legitimate objectives of (i) ensuring that consumers are not misled or deceived about whether tuna products contain tuna that was caught in a manner that adversely affects dolphins and (ii) contributing to the protection of dolphins, by ensuring that the US market is not used to encourage fishing fleets to catch tuna in a manner that adversely affects dolphins, taking account of the risks non-fulfilment would create. The Panel's conclusion was based on the following two findings: (i) the findings that the US dolphin-safe labelling provisions only partly address the legitimate objectives pursued by the United States and (ii) the finding that Mexico had provided the panel with a less trade restrictive alternative capable of achieving the same level of protection of the objective pursued by the US dolphin-safe labelling provisions.
- As regards Mexico's claim under Article 2.4 of the TBT Agreement, the Panel found that the US dolphin-safe labelling provisions are not in violation of such provision, which requires technical regulations to be based on relevant international standards where possible. Despite finding that the standard referred to by Mexico is a relevant international standard for the purposes of the US dolphin-safe provisions and that the United States has not used it as basis for its measures, the Panel concluded that this standard would not be appropriate or effective to achieve the US objectives.
- The Panel declined to rule in addition on Mexico's non-discrimination claims under the GATT 1994 and therefore exercised judicial economy with respect to Mexico's claims under Articles I:1 and III:4 of the GATT.
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On 31 October 2011, Mexico and the United States requested the DSB to adopt a draft decision extending the 60-day time period stipulated in Article 16.4 of the DSU, to 20 January 2012. At its meeting on 11 November 2011, the DSB agreed that, upon a request by Mexico or the United States, the DSB, shall no later than 20 January 2012, adopt the panel report, unless the DSB decides by consensus not to do so or Mexico or the United States notifies the DSB of its decision to appeal pursuant to Article 16.4 of the DSU.
On 20 January 2012, the United States notified the DSB of its decision to appeal certain issues of law and legal interpretations developed by the panel. On 25 January 2012, Mexico notified the DSB of its decision to appeal certain issues of law and legal interpretations developed by the panel, and the panel's failure to make an objective assessment of the matter as required by Article 11 of the DSU.
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