The panel report is out. Here are the key findings:
8.2. With respect to Mexico's claims under Article 2.1 of the TBT Agreement, the Panel concludes that:
a. the eligibility criteria in the amended tuna measure do not accord less favourable treatment to Mexican tuna and tuna products than that accorded to like products from the United States and to like products originating in any other country, and are thus consistent with Article 2.1 of the TBT Agreement;
b. the different certification requirements in the amended tuna measure accord less favourable treatment to Mexican tuna and tuna products than that accorded to like products from the United States and to like products originating in any other country, in violation of Article 2.1 of the TBT Agreement;and
c. the different tracking and verification requirements in the amended tuna measure accord less favourable treatment to Mexican tuna and tuna products than that accorded to like products from the United States and to like products originating in any other country, in violation of Article 2.1 of the TBT Agreement.
8.3. With respect to Mexico's claims under the GATT 1994, the Panel concludes that:
a. the eligibility criteria in the amended tuna measure accord less favourable treatment to Mexican tuna and tuna products than that accorded to like products from the United States and to like products originating in any other country, in violation of Articles I:1 and III:4 of the GATT 1994;
b. the different certification requirements in the amended tuna measure accord less favourable treatment to Mexican tuna and tuna products than that accorded to like products from the United States and to like products originating in any other country, in violation of Articles I:1 and III:4 of the GATT 1994; and
c. the different tracking and verification requirements in the amended tuna measure accord less favourable treatment to Mexican tuna and tuna products than that accorded to like products from the United States and to like products originating in any other country, in violation of Articles I:1 and III:4 of the GATT 1994.
8.4. With respect to the United States' defence under Article XX(g) of the GATT 1994, the Panel finds that:
a. the eligibility criteria in the amended tuna measure are provisionally justified under Article XX(g);
b. the different certification requirements in the amended tuna measure are provisionally justified under Article XX(g); and
c. the different tracking and verification requirements in the amended tuna measure are provisionally justified under Article XX(g).
8.5. With regard to the question of whether the challenged aspects of the amended tuna measure satisfy the requirements of the chapeau of Article XX of the GATT 1994, the Panel concludes that:
a. the eligibility criteria in the amended tuna measure are applied in a manner that meets the requirements of the chapeau of Article XX of the GATT 1994;
b. the different certification requirements are applied in a manner that does not meet the requirements of the chapeau of Article XX of the GATT 1994; and
c. the different tracking and verification requirements are applied in a manner that does not meet the requirements of the chapeau of Article XX of the GATT 1994.
So, the upshot is, the new measure violates the rules, based on some sort of discrimination finding. I don't have any opinions on the reasoning yet, but I'm sure I will develop some opinions soon.
