United States
– CERTAIN COUNTRY OF
ORIGIN LABELLING (COOL) REQUIREMENTS
Recourse to Article 21.5 of the DSU by Canada and Mexico
AB-2014-10
Reports
of the Appellate Body
Table of
Contents
1 Introduction.. 11
2 Arguments
OF THE PARTICIPANTS AND THIRD PARTICIPANTS. 16
2.1 Claims of
error by the United States – Appellant. 16
2.1.1 Article 2.1 of the TBT Agreement 16
2.1.1.1 The increased recordkeeping burden entailed by
the amended COOL measure. 17
2.1.1.2 The accuracy of labels prescribed by the
amended COOL measure. 18
2.1.1.3 The exemptions under the amended COOL measure. 20
2.1.2 Article 2.2 of the TBT Agreement 23
2.1.3 Articles III:4 and IX of the
GATT 1994. 24
2.1.4 Article XX of the GATT 1994. 25
2.1.5 Article XXIII:1(b) of the
GATT 1994. 26
2.2 Arguments
of Canada – Appellee. 26
2.2.1 Article 2.1 of the TBT Agreement 26
2.2.1.1 The increased recordkeeping burden entailed by
the amended COOL measure. 26
2.2.1.2 The accuracy of labels prescribed by the
amended COOL measure. 28
2.2.1.3 The exemptions under the amended COOL measure. 30
2.2.2 Article 2.2 of the TBT Agreement 32
2.2.3 Articles III:4 and IX of the
GATT 1994. 33
2.2.4 Article XX of the GATT 1994. 33
2.2.5 Article XXIII:1(b) of the
GATT 1994. 34
2.3 Arguments
of Mexico – Appellee. 34
2.3.1 Article 2.1 of the TBT Agreement 34
2.3.1.1 The increased recordkeeping burden entailed by
the amended COOL measure. 34
2.3.1.2 The accuracy of labels prescribed by the
amended COOL measure. 36
2.3.1.3 The exemptions under the amended COOL measure. 37
2.3.2 Article 2.2 of the TBT Agreement 39
2.3.3 Articles III:4 and IX of the
GATT 1994. 40
2.3.4 Article XX of the GATT 1994. 40
2.3.5 Article XXIII:1(b) of the
GATT 1994. 41
2.4 Claims of
error by Canada – Other appellant. 41
2.4.1 Article 2.1 of the TBT Agreement 41
2.4.1.1 The Panel's analysis of Label D. 41
2.4.1.2 The Panel's analysis of Label E. 42
2.4.1.3 The prohibition of a trace-back system.. 43
2.4.2 Article 2.2 of the TBT Agreement 44
2.4.2.1 Introduction. 44
2.4.2.2 The legal test under Article 2.2 of the
TBT Agreement 45
2.4.2.3 The degree of contribution made by the amended
COOL measure to its objective. 46
2.4.2.4 The first and second proposed alternative
measures. 47
2.4.2.5 The third and fourth proposed alternative
measures. 48
2.4.3 Article XXIII:1(b) of the
GATT 1994. 49
2.5 Claims of
error by Mexico – Other appellant. 49
2.5.1 Article 2.1 of the TBT Agreement 49
2.5.1.1 The Panel's analysis of Label E. 49
2.5.2 Article 2.2 of the TBT Agreement 50
2.5.2.1 Introduction. 50
2.5.2.2 The legal test under Article 2.2 of the
TBT Agreement 51
2.5.2.3 The degree of contribution made by the amended
COOL measure to its objective. 53
2.5.2.4 The first and second proposed alternative
measures. 53
2.5.2.5 The third and fourth proposed alternative measures. 54
2.5.3 Article XXIII:1(b) of the
GATT 1994. 55
2.6 Arguments
of the United States – Appellee. 55
2.6.1 Article 2.1 of the TBT Agreement 55
2.6.1.1 The Panel's analysis of Label D. 56
2.6.1.2 The Panel's analysis of Label E. 57
2.6.1.3 The prohibition of a trace-back system.. 57
2.6.2 Article 2.2 of the TBT Agreement 58
2.6.2.1 Introduction. 58
2.6.2.2 The legal test under Article 2.2 of the
TBT Agreement 58
2.6.2.3 The degree of contribution made by the amended
COOL measure to its objective. 60
2.6.2.4 The first and second proposed alternative
measures. 61
2.6.2.5 The third and fourth proposed alternative
measures. 62
2.6.3 Article XXIII:1(b) of the
GATT 1994. 62
2.7 Arguments
of the third participants. 63
2.7.1 Australia. 63
2.7.2 Brazil 64
2.7.3 China. 64
2.7.4 Colombia. 65
2.7.5 European Union. 66
2.7.6 Japan. 69
2.7.7 Korea. 71
2.7.8 New Zealand. 72
3 Issues
Raised in This Appeal. 72
4 BACKGROUND
AND OVERVIEW OF THE MEASURE AT ISSUE. 74
4.1 Introduction. 74
4.2 Overview
of the amended COOL measure. 75
4.3 Coverage
of the amended COOL measure. 76
4.4 Categories
of meat. 77
4.5 Labelling
requirements. 78
4.6 Flexibilities. 81
5 Analysis
of the Appellate Body. 82
5.1 Article 2.1
of the TBT Agreement. 82
5.1.1 Introduction. 82
5.1.2 Claims
of the United States under Article 2.1 of the TBT Agreement 83
5.1.2.1 Claims relating to the Panel's analysis of the
recordkeeping burden entailed by the amended COOL measure. 83
5.1.2.2 Claims relating to the Panel's analysis of the
accuracy of the labels prescribed by the amended COOL measure. 93
5.1.2.3 Claims relating to the exemptions prescribed
by the amended COOL measure. 98
5.1.3 Claims of Canada and Mexico under
Article 2.1 of the TBT Agreement 109
5.1.3.1 Whether the Panel erred in its assessment of
Label D under Article 2.1 of the TBT Agreement 110
5.1.3.2 Whether the Panel erred in its assessment of
Label E under Article 2.1 of the TBT Agreement 115
5.1.3.3 Whether the Panel erred in its assessment of
the amended COOL measure's prohibition of a trace-back system under
Article 2.1 of the TBT Agreement 120
5.2 Article 2.2
of the TBT Agreement. 122
5.2.1 Interpretation of Article 2.2 of the
TBT Agreement 123
5.2.2 Claims of error with respect to the legal
test for "more trade-restrictive than necessary" under
Article 2.2 of the TBT Agreement 130
5.2.3 Claims of error with respect to the Panel's
finding on the amended COOL measure's degree of contribution to its objective. 134
5.2.4 Claims of error with respect to the Panel's
interpretation and application of the phrase "taking account of the risks
non-fulfilment would create" in Article 2.2 of the TBT Agreement 137
5.2.4.1 The United States' claim that the Panel
erred in its interpretation of the phrase "taking account of the risks
non-fulfilment would create". 137
5.2.4.2 Canada's and Mexico's claims that the Panel
erred in the factors it took into account in assessing "the risks
non-fulfilment would create". 143
5.2.4.3 Claims of error with respect to the Panel's
finding that Canada and Mexico failed to make a prima facie
case that the first and second proposed alternative measures would make an
equivalent degree of contribution to the amended COOL measure's objective. 149
5.2.4.4 Claims of error with respect to the Panel's
assessment of certain evidence and arguments in respect of consumer demand for
origin information. 153
5.2.4.5 Completion of the legal analysis with respect
to the first and second proposed alternative measures 153
5.2.5 Claims of error with respect to the third
and fourth proposed alternative measures. 155
5.3 Article III:4
and Article IX of the GATT 1994. 160
5.3.1 The Panel's findings. 160
5.3.2 Article IX of the GATT 1994 as
relevant context for the interpretation of Article III:4 of the
GATT 1994 161
5.4 Article III:4
and Article XX of the GATT 1994. 164
5.4.1 Interim review section of the Panel Reports. 165
5.4.2 The availability of an Article XX exception
with respect to the amended COOL measure. 166
5.5 Article XXIII:1(b)
of the GATT 1994. 168
6 Findings
and Conclusions in the Appellate Body report WT/DS384/AB/RW cda-169
6 Findings
and Conclusions in the Appellate Body report WT/DS386/AB/RW MEX-173
Annex 1 United States' Notice of Appeal 177
Annex 2 Canada's
Notice of Other Appeal 179
Annex 3 Mexico's
Notice of Other Appeal 181
Annex 4 Procedural
Ruling of 2 December 2014. 184
Annex 5 Procedural
Ruling of 17 December 2014. 188
Annex 6 Procedural
Ruling of 7 January 2015. 190