VI - ARTICLE 2.1 OF THE TBT AGREEMENT

Summary

200. We turn next to address Mexico's appeal of the Panel's finding that Mexico failed to demonstrate that the US “dolphin-safe” labelling provisions are inconsistent with Article 2.1 of the TBT Agreement.

201. Article 2.1 of the TBT Agreement provides that, with respect to their central government bodies:

Members shall ensure that in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.

202. Article 2.1 of the TBT Agreement consists of three elements that must be demonstrated in order to establish an inconsistency with this provision, namely: (i) that the measure at issue constitutes a “technical regulation” within the meaning of Annex 1.1; (ii) that the imported products must be like the domestic product and the products of other origins; and (iii) that the treatment accorded to imported products must be less favourable than that accorded to like domestic products and like products from other countries. Mexico's appeal concerns only the Panel's finding in respect of the third element, namely, the “treatment no less favourable” standard in Article 2.1. We further note that the United States has not appealed the Panel's finding that Mexican tuna products are “like” tuna products of United States' origin and tuna products originating in any other country within the meaning of Article 2.1 of the TBT Agreement.