RESTRICTED  
  
WT/DSB/M/362  
 
14 July 2015  
(15-3610)  Page: 1/8  
Dispute Settlement Body 
29 May 2015    
 
 MINUTES OF MEETING 
HELD IN THE CENTRE WILLIAM RAPPARD 
ON 29 MAY 2015 
Acting Chairman: Mr. Atanas Atanassov Paparizov (the EU) 
Prior to the adoption of the Agenda, Ambassador Atanas Atanassov Paparizov (the EU), the 
Chairman of the Trade Policy Review Body, welcomed delegations and said that he had the 
pleasure of chairing the present meeting at  the request of the Chairman of the DSB, 
Ambassador Harald Neple, who had asked him to preside on his behalf due to his absence from 
Geneva. He noted that this was in accordance with the Rules of Procedure for meetings of the DSB 
which provided that if the DSB Chairperson was absent from any meeting or part thereof, the Chairman of the General Council or the Chairman of the Trade Policy Review Body shall perform 
the functions of the DSB Chairman. 
 1  UNITED STATES – CERTAIN COUNTRY OF ORIGIN LABELLING (COOL) REQUIREMENTS: 
RECOURSE TO ARTICLE 21.5 OF THE DSU BY CANADA AND MEXICO 
A.  Report of the Appellate Body (WT/ DS384/AB/RW) and Report of the Panel 
(WT/DS384/RW and WT/DS384/RW/Add.1) 
B.  Reports of the Appellate Body (WT/ DS386/AB/RW) and Report of the Panel 
(WT/DS386/RW and WT/DS386/RW/Add.1) 
1.1.  The Chairman drew attention to the comm unication from the Appellate Body contained in 
document WT/DS384/33 – WT/DS386/32 transmitting the Appellate Body Reports in the disputes: 
"United States – Certain Country of Origin Labelling (COOL) Requirements: Recourse to 
Article 21.5 of the DSU by Canada and Mexico", which had been circulated on 18 May 2015 in document WT/DS384/AB/RW – WT/DS386/AB/RW. He recalled that the Appellate Body Reports 
and the Panel Reports pertaining to these disputes had been circulated as unrestricted documents. 
As Members were aware, Article 17.14 of the DSU required that: "An Appellate Body report shall be adopted by the DSB and unconditionally accept ed by the parties to the dispute unless the DSB 
decides by consensus not to adopt the Appellate Body report within 30 days following its 
circulation to Members. This adoption procedure is without prejudice to the right of Members to 
express their views on an Appellate Body report". 
1.2.  The representative of Canada said that his country thanked the Appellate Body, the members 
of the compliance Panel and the various Secretaria ts for their work on the compliance proceedings 
in this dispute. Canada appreciated the efforts ma de by all of them in assisting Canada and the 
United States to resolve the dispute. Canada acknowledged and appreciated the valuable 
cooperation of Mexico as a co-complainant, as well  as the active support of several other Members 
as third parties. At the outset, Canada wished to note that, counting from the date of the establishment of the original panel in November 2009, these proceedings had taken approximately five and a half years. If it had not been clear before, the outcome of the original proceedings and 
these compliance proceedings had confirmed the serious adverse impact of first the COOL 
measure, and later the amended COOL measure, on the competitive position of Canadian livestock in the United States market. Throughout this peri od of five and a half years, Canadian livestock 
producers had continued to suffer the costs of the COOL measure. Canada was, therefore, pleased 
with the Panel and Appellate Body findings and conclusions in this review of compliance. This was WT/DSB/M/362 
 
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  the second time that a panel had found, and the Appellate Body had confirmed, violations by the 
United States of its national treatment obligation.  Since the establishment of the original Panel, 
Canada had now successfully demonstrated, on four  different occasions, that the COOL measure 
and its amendments violated the WTO obligations of the United States. The findings and 
conclusions of the Panel and Appellate Body in  the compliance phase were also important 
systemically in several respects. In this phase, the compliance Panel had found, and the Appellate Body had confirmed, violations of the national treatment obligations of the United States under 
both the TBT Agreement and the GATT 1994. This clarity would serve to preserve the systemic 
integrity between related but different obligat ions under the WTO Agreement. Second, while 
Canada regretted that there was not a final finding of inconsistency with Article 2.2 of the TBT Agreement, the Appellate Body had provided  useful and important clarifications to the 
interpretation of that provision. All legal avenues to examine the compatibility of the amended 
COOL measure with the WTO obligations of the United States had now been exhausted. Canada, therefore, renewed the call on the United States  to repeal the provisions of the amended COOL 
measure in respect of beef and pork, thereby re ctifying its WTO violations and removing this 
unnecessary barrier to trade. Should the United States fail to bring itself into compliance with the DSB's recommendations and rulings that would be adopted at the present meeting, Canada would 
seek authorization from the DSB to suspend concessions to the United States, as was its right 
under Article 22 of the DSU. In fact, already in June 2013, a proposed list of products from the United States to which surcharges may be applied was published in the Canada Gazette. This list included agricultural products, such as cattle, pork, apples, rice, corn, maple syrup, pasta and 
wine; as well as non-agricultural products such as jewellery, office chai rs, wooden furniture and 
mattresses. Canada was interested in resolving this dispute as soon as possible and in a manner that promoted trade between the parties to this dispute. While suspension of concessions was not 
Canada's preferred route to resolve this dispute, Canada was prepared to exercise the right to 
retaliate, if necessary. 
1.3.  Finally, Canada wished to comment briefly on some of the institutional implications of the 
progression of this dispute through the system. As had already been indicated, it had taken five 
and a half years to get to this point. Canada had faced delays at almost every stage. For example, the compliance review alone had taken 13 months, in stead of the 90 days provided for in the DSU, 
and the appeal of the compliance report took 172 da ys, instead of the 90 days provided for in the 
DSU. Along the way, several important opportunities were missed, including during the final 
appeal, to establish a pattern of cooperation be tween the Appellate Body and the parties that 
would mitigate the implications of departures fr om binding DSU provisions on deadlines. This was 
regrettable. While there were a variety of reasons for the various delays, many were the result of 
the workload challenges facing the WTO dispute settlement system that Members had been trying to address over the last few years. These delays had resulted in a significant burden on the 
Canadian economy, and in particular on the Cana dian stakeholders affected by the measure at 
issue, as they had allowed the United States to maintain its WTO-inconsistent measure for far longer than originally foreseen in the DSU. The outcome of this dispute, therefore, served as a 
reminder of the importance of Members ongoing efforts, formally in the DSB and in the Budget 
Committee, and informally among Members, to ad dress the workload challenges. The continued 
credibility and legitimacy of the system depended on its capacity to live up to the original promise of prompt settlement of disputes. As it had already indicated, Canada was pleased with the 
outcome that would be adopted at the present meeting, but this outcome should have been 
obtained much earlier. Canada therefore looked forward to continuing, and even accelerating, its 
efforts to find sustainable solutions to these underlying systemic issues so that future disputes 
need not take as long as the "US-COOL" dispute to receive a final ruling on WTO consistency. 
1.4.  The representative of Mexico said that his country thanked the members of the Appellate 
Body involved in these proceedings, the Panel and the respective Secretariats for their assistance. 
Mexico also thanked third parties for their views and contribution to a broader discussion on the 
scope of the key obligations of the TBT Agreement and the GATT 1994. He recalled that Mexico 
had initiated the original proceedings by submitting a request for consultations in December 2008, more than seven years ago. At the present meetin g, Mexico welcomed the adoption of the Panel 
and Appellate Body Reports under Article 21.5 proceedings in the "US – COOL" dispute. The 
Appellate Body Report upheld what Mexico had argued throughout these proceedings, namely that the COOL labelling was discriminatory in that it accorded less-favourable treatment to exports of 
Mexican livestock. The Appellate Body had confirmed that the discrimination caused by the 
administrative amendments to the COOL measure was unjustified since it did not stem from a WT/DSB/M/362 
 
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  legitimate regulatory distinction. Consequently , the amended COOL measure did not comply with 
the US obligations under the WTO. 
1.5.  With respect to Article 2.1 of the TBT Agr eement, Mexico said that the Appellate Body had 
upheld the findings of the Panel, and in its reasoning, it had clarified the interpretation and 
application of that Article. Regarding the determination of less-favourable treatment and the 
detrimental impact on imports, the Appellate Body had stressed that Article 2.1 should be 
approached with a view to determining whether there was any modification in the conditions of 
competition for like imported products, and had expl ained that this analysis should not be limited 
to an examination of the operation of a technical regulation in relation to current patterns of trade. The analysis must be grounded in an assessment of the technical regulation at issue in scenarios under which competitive opportunities may arise. With regard to the finding that the detrimental 
impact of the modified COOL measure had not stemmed exclusively from a legitimate regulatory 
distinction, the Appellate Body had upheld the Panel's conclusion that there was a "disconnect" between the information required of livestock producers and processors on one hand, and the 
information conveyed to consumers on the labels  prescribed by the amended COOL measure on 
the other hand. In particular, the Appellate Body had confirmed that the amended COOL measure: (i) entailed an increased recordkeeping burden for producers and processors of livestock; 
(ii) conveyed inaccurate information; and (iii) continued to exempt a large proportion of muscle 
cuts from its scope. 
1.6.  The Appellate Body had recalled that "technical regulations must be assessed as composite 
legal instruments through careful scrutiny of their design, architecture, revealing structure, 
operation and application". Accordingly, the exemptions from the COOL measure had been 
examined and the Appellate Body had stated that  "the exemptions prescribed by the amended 
COOL measure are probative of whether the detr imental impact of that measure on imported 
livestock stems exclusively from legitimate regulatory distinctions". It was of central importance to 
the Appellate Body that between 57.7% and 66.7% of beef consumed in the United States, and 
between 83.5% and 84.1% of pork muscle cuts would convey no consumer information on origin 
despite imposing an upstream recordkeeping burden on producers and processors that had a 
detrimental impact on competitive opportunities for imported livestock. In that connection, the Appellate Body had stated that it did not consider that the cost savings enjoyed by US entities that 
remained exempt from the COOL requirements al tered the Panel's finding with respect to the 
above percentages. The United States had argued th at the analysis of a technical regulation under 
Article 2.1 of the TBT Agreement must be confined only to the regulatory distinctions causing the 
detrimental impact on imported products. The Appe llate Body had rejected this position, and had 
rightly confirmed that "other elements are relevant  for that assessment to the extent that they are 
probative of whether the detrimental impact on like imported products stems exclusively from 'legitimate' regulatory distinctions for the purpos es of Article 2.1". These elements must have a 
"direct connection" and must form part of the design, architecture, and revealing structure of the 
technical regulation at issue. Mexico appreciated the Appellate Body's conclusion that the exemptions under the amended COOL measure as part  of the overall architecture of the measure, 
demonstrated that the relevant regulatory distinctions were not designed and applied in an 
even-handed manner. 
1.7.  With regard to Article 2.2 of the TBT Ag reement, in Mexico's view the Appellate Body's 
interpretation of Article 2.2 was highly relevant. Mexico appreciated the clarifications provided in 
the Appellate Body's Report on the scope of that Article. In Mexico's view, these clarifications 
helped to impart a meaning to Article 2.2 of the TBT Agreement and to make the obligation workable: i.e., to produce the effect for which it was intended, which was to ensure that a 
technical regulation did not have the purpose or effect of creating unnecessary obstacles to 
international trade. 
1.8.  Mexico also wished to highlight several different aspects of the Appellate Body's 
interpretation of Article 2.2 of the TBT Agreemen t. First, with regard to contribution to the 
objective, Mexico said that the Appellate Body had reversed the Panel's general conclusions to the 
effect that Mexico had not made a prima facie  case under Article 2.2 of the TBT Agreement. The 
Panel had erroneously concluded that the amended COOL measure made a "considerable but 
necessarily partial contribution" to its objective. The Panel's error lied in the fact that it did not 
consider that some of the meat products consumed in the United States included ground meat (Label E) and imported muscle cuts (Label D), and on these labels, the US consumer was not WT/DSB/M/362 
 
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  given information on the place of birth, raisin g and slaughter of the livestock from which the 
products were derived.  
1.9.  Second, with regard to holistic relational analysis and comparative analysis, Mexico said that, 
according to the Appellate Body, an assessment of whether a technical regulation "is more 
trade-restrictive than necessary" under Article 2.2 of the TBT Agreement involved the holistic 
weighing and balancing of all relevant factors. Concerning the "relational" and "comparative" analysis under that provision, the Appellate Body had explained that Article 2.2 did not explicitly 
establish a sequence and order, so that the particular manner of sequencing the steps of this 
analysis was adaptable, and may be tailored to the specific claims, measures, facts and arguments at issue in a given case. A possible sequence would be to begin the process with the evaluation of relevant factors to be weighed and balanced to determine the necessity of the measure. If that 
analysis led to the preliminary conclusion that the measure was necessary, that result must be 
confirmed by comparing the measure with possible alternatives, which may be less trade-restrictive while providing an equivalent co ntribution to the achievement of the objective 
pursued. Panels had a certain degree of flexibility to adapt the sequence and order of analysis in a 
given case in assessing the relevant factors and in the manner of weighing and balancing under Article 2.2. It had also been explained that this latitude was not unlimited and was confined to the 
specific claims, measures, facts, and arguments at issue. Regarding the "comparative analysis", 
the Appellate Body had argued that given that an  alternative measure proposed by a complainant 
functioned as a "conceptual tool" to illustrate that a technical regulation was more trade-restrictive than necessary, once an alternative measure had be en proposed by the complainant, it should be 
considered by a panel in the overall weighing and balancing under Article 2.2. 
1.10.  Third, with regard to equivalent degree of contribution of the less restrictive alternatives, he 
said that in Mexico's view, one highly important point in this examination was that a complainant 
was not deemed to have to demonstrate that its proposed alternative measure achieved a degree 
of contribution identical to that achieved by the challenged technical regulation in order for it to be found to achieve an equivalent degree. Rather, the Appellate Body had considered that there 
should be a margin of appreciation in the assessment of whether a proposed alternative measure 
achieved an equivalent degree of contribution, the contours of which may vary from case to case. This finding was important since it explained that the burden of proof for the complainant did not consist of identifying alternative measures that fulfilled in an "identical" manner or to the same 
degree the objective of the challenged measure, above all considering that those objectives could 
often be so specific that it was complicated for the complainant to identify and propose less restrictive alternative measures. Mexico agreed with the Appellate Body that "[f]or the purpose of 
assessing the equivalence between the respective degrees of contribution of the challenged 
technical regulation and the proposed alternative measures, it is the overall degree of contribution that the technical regulation makes to the objective pursued that is relevant, rather than any 
individual isolated aspect or component of that contribution". 
1.11.  Fourth, with regard to the failure to a scertain the gravity of the consequences of not 
fulfilling the objective, Mexico said that the Appella te Body had found that in applying Article 2.2 of 
the TBT Agreement to the facts of this case, the Panel had erred in determining that it was unable 
to ascertain the gravity of the consequences of  non-fulfilment of the amended COOL measure's 
objectives. The Appellate Body had explained that  it might be difficult, in some contexts, to 
determine separately the nature of the risks, on the one hand, and to quantify the gravity of the 
consequences that would arise from non-fulfilment, on the other hand. In such contexts, it may be 
more appropriate to conduct a conjunctive analysis of both the nature of the risks and the gravity 
of the consequences of non-fulfilment, in which the risks non-fulfilment would create, could be 
assessed in qualitative terms. The Panel should not have failed in its obligation to assess such an 
important factor because of difficulties or imprecision that arose in assessing "the risks nonfulfillment [of the objective of the measure at  issue] would create". A panel should proceed 
further with a holistic weighing and balancing of all relevant factors and reach an overall 
conclusion. 
1.12.  Fifth, with regard to the error in determining that Mexico did not make a prima facie  case on 
less restrictive alternatives, Mexico said that the Appellate Body had found that the Panel could not 
"determine whether the first and second proposed alternative measures make a degree of 
contribution equivalent to that of the amende d COOL measure" and thus decided "to end its 
analysis as to whether the amended COOL measure is 'more trade-restrictive than necessary' 
under Article 2.2 ... on the basis of those proposed alternative measures". In view of these errors, WT/DSB/M/362 
 
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  the Appellate Body had reversed the Panel's finding that "Mexico failed to make a prima facie  case 
that the amended COOL measure violates Article 2.2". The Appellate Body was unable to complete the legal analysis of certain allegations for lack of sufficient undisputed facts on the Panel record with respect to the first and second proposed alternative measures. 
1.13.  Sixth, with regard to the issue of burden of proof with respect to the alternative measures, 
Mexico said that Appellate Body's explanation concerning the burden of proof in relation to the alternative measure was important: "Considering that proposed alternative measures serve as 
'conceptual tool[s]', and taking into account that the specific details of implementation may 
depend on the capacity and particular circumstances of the implementing Member in question, it would appear incongruous to expect a complainant, under Article 2.2 […,] to provide detailed information on how a proposed alternative would be implemented by the respondent in practice, 
and precise and complete estimates of the cost that  such implantation would entail." The Appellate 
Body had, therefore, concluded that "the Panel should have considered whether the evidence provided by the complainants, and in particular, the examples of implemented trace-back systems 
in the United States and elsewhere, could have provided a sufficient indication that the cost of the 
proposed alternative would not be a priori prohibitive, and that potential technical difficulties associated with their implementation would not be of such a substantial nature that they would 
render the proposed alternatives merely theore tical in nature". Against this background, the 
Appellate Body had concluded that "the Panel did not properly allocate the burden of the proof under Article 2.2 ... in finding that … Mexico had not provided sufficient explanation of how [its] 
third and fourth proposed alternative measures would be implemented in the United States, and 
the costs associated with those alternative meas ures". Although the Appellate Body could not 
complete the analysis of Mexico's arguments under Article 2.2 of the TBT Agreement, Mexico believed that the clarifications provided by th e Appellate Body would be of great help in 
considering the assessment of future measures in relation to the Article 2.2 analysis. 
1.14.  With regard to the GATT 1994, Mexico said  that the Appellate Body had confirmed that the 
amended COOL measure was contrary to Articl e III:4 of the GATT 1994 and had clarified the 
relationship between Article III:4 and Article IX  of the GATT 1994 in the following terms: "[W]e 
see Articles IX:2 and IX:4 as setting out obligations with regard to 'marking requirements' that are separate from, and additional to, the national treatment obligation in Article III:4 of the GATT 1994." At the same time, the Panel's and Appellate Body's conclusion concerning the 
attempt by the United States to depart, as an exception, from the well-established jurisprudence 
in respect of Article XX of the GATT 1994, was of vital importance. The Appellate Body had explained that the responding party should invo ke a defence in the early stages of the panel 
proceedings, because otherwise the due process would be undermined. 
1.15.  Finally, in light of the Panel and Appellate Body Reports in the compliance proceedings, 
Mexico hoped that the United States would immediately comply with the DSB's rulings and 
recommendations. If not, Mexico would reserve it s right to continue the proceedings under the 
DSU, including its right to suspend concessions or other obligations. 
1.16.  The representative of the United States said that his country would like to thank the 
members of the compliance Panels, the Appellate Body, and the Secretariat assisting them for 
their work on these proceedings. These proceeding s involved US country of origin labelling (COOL) 
requirements for beef and pork products sold at the retail level, which had been amended in direct 
response to the original findings of the Panel and Appellate Body. In particular, the original Panel 
and Appellate Body had found that the 2009 Final Ru le breached Article 2.1 of the Agreement on 
Technical Barriers to Trade ("TBT Agreement") be cause it required producers throughout the 
supply chain to collect information on where animal s were born, raised, and slaughtered, while not 
requiring retailers to provide the same level of detail on the labels placed on meat products sold at 
retail outlets. The United States had changed its labels in the 2013 Final Rule to be directly responsive to this finding, and retailers were now required to inform consumers of the place of birth, raising, and slaughtering for every piece of labeled meat that they bought. As such, the 
findings of the compliance Panels and Appellate Body were particularly disappointing. Instead of 
recognizing that the United States had modified its measure in the manner suggested by the Appellate Body such that it would come into compliance with Article 2.1, the Panels had continued 
to find the US measure to be in breach of this provision based primarily on two factors: (i) the fact 
that some meat was not required to be labelled, which was similar to the exceptions other Members had for their country of origin measures; and (ii) because in theory there could be some 
slightly more detailed information provided on the label in a few cases. Unfortunately, the WT/DSB/M/362 
 
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  Appellate Body's somewhat cursory analysis had not reversed these findings. On the other hand, 
the Panels and the Appellate Body had left undistu rbed the finding in the original proceeding that 
the provision of origin information to consumers was a legitimate objective under the covered agreements. Paradoxically, however, it would appear from those findings that there was no clear 
way under the covered agreements for a Member to achieve that legitimate objective. When 
examined as a whole, the Panel and Appellate Body findings appeared to mean that the United States could not require US retailers to in form consumers of beef and pork about where the 
animals were born, raised, and slaughtered. This was a conclusion with which the United States 
strongly disagreed. 
1.17.  More specifically, with respect to whether the amended measure treated imports less 
favorably than domestic products under Article 2.1 of the TBT Agreement, neither of the issues on 
which the findings were based went to the question presented, at least as the Appellate Body had 
explained it in the original proceedings. There th e Appellate Body had explained that the question 
was whether the detrimental impact stemmed exclusively from legitimate regulatory distinctions or 
reflected discrimination. But here, there had been no explanation as to why either the fact that 
there could be some slightly more detailed information provided in a few cases or that not all beef and pork sold was required to be labelled would "r eflect discrimination". After all, Article 2.1 of the 
TBT Agreement addressed discrimination. It was not concerned with whether a technical regulation 
was "perfect" or "could be better or even more accurate" or "could apply to even more products". The findings regarding the 2013 Final Rule's recordkeeping burden further illustrated the concern. For those findings, the Panels had relied on hypothetical scenarios that did not actually occur and 
would not be expected to ever occur. However, the Appellate Body appeared to avoid engaging 
with the US argument by noting that one of the scenarios the Panels had relied on was not a pure hypothetical. But even that hypothetical scenario failed to show that the amended COOL measure 
reflected discrimination. The scenario relied on by  the Appellate Body involved the change in 
labeling for meat that represented an exceed ingly small percentage of the market. And by 
affirming the Panels' finding that recordkeeping increased through the change to this one very 
minor label, the Appellate Body made no real  evaluation of whether the recordkeeping had 
increased under the amended measure. Accordingly, the Appellate Body made no real evaluation of why the amended measure impacted the competitive opportunities for Mexico and Canada in the US livestock market at all
1, which indeed was what the Panel ultimately should have been 
examining when answering the question of whether the detrimental impact reflected 
discrimination. 
1.18.  Regarding the accuracy of the 2013 Final Rule's labeling requirements, the Appellate Body 
had never engaged with the fundamental issue. That was, whether the fact that the United States 
could have required the B Label to contain even more detailed information by listing all countries where the animal had resided as a country of "raising" meant, in fact, that such "inaccuracy" 
supported a finding that the detrimental impact did not stem exclusively from a legitimate 
regulatory distinction.
2 Regarding the exemptions to the amended measure, the United States was 
very concerned by the Appellate Body's affirm ation of the Panels' finding that regulatory 
distinctions that had no impact whatsoever on the detrimental impact were nonetheless somehow 
relevant in assessing whether the detrimental impact stemmed exclusively from a legitimate 
regulatory distinction. Exemptions, such as the ones that were part of the amended measure, were a normal public policy tool used by Members to balance benefits and costs. In this case, the 
exemptions did not contribute to any detrimental impact on foreign livestock exports to the 
United States. Moreover, even taking into account the exemptions, the amended measure required over 30,000 grocery stores and other retailers throughout the United States to provide country of 
origin information to their customers on the US$38. 5 billion worth of beef and US$8.0 billion worth 
of pork they sold annually. As such, it could hardly be said that the costs of the amended measure were so disproportionate to the information actually provided to consumers that the detrimental impact reflected arbitrary discrimination against Canadian and Mexican livestock. The findings with 
respect to Articles III:4 and XX of the Ge neral Agreement on Tariffs and Trade 1994 
("GATT 1994"), and their connection to Article 2.1 of the TBT Agreement, were also troubling. 
Indeed, the Panels and Appellate Body continued to fail to adequately address the fact that there 
may be measures whose objective was legitimate under the TBT Agreement, and whose 
detrimental impact flowed exclusively from legitimate regulatory distinctions, such that these measures were consistent with Article 2.1, but at the same time would be inconsistent with 
                                               
1 "US – COOL" (Article 21.5 – Canada/Mexico) (AB), paragraphs 5.17-18. 
2 "US – COOL" (Article 21.5 – Canada/Mexico) (AB), paragraphs 5.64-66. WT/DSB/M/362 
 
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  Article III:4 of the GATT 1994 because the legitimate objective did not directly correspond to an 
exception available under Article XX of the GATT 1994. This was clearly not a sustainable reading of the two agreements. Despite the United States  directly raising these serious and systemic 
concerns, the Appellate Body Reports did nothing to address the "balance" between Article 2.1 of 
the TBT Agreement and Article III:4 of the GATT 1994,  nor did they facilitate an understanding of 
the scope of Article XX of the GATT 1994. With respect to Article 2.2 of the TBT Agreement, the United States was pleased that the Panels and the Appellate Body had all agreed that the amended 
COOL measure was not more trade restrictive than necessary. In so doing, the Panels and the 
Appellate Body had both appropriately concluded that demonstrating that a measure was more trade restrictive than necessary would in most cases require a comparison of the measure at issue with another measure that a complaining party asserted would fulfil the Member's objective at a 
level equivalent to the challenged measure, but in a less trade restrictive manner. Nonetheless, 
the Panels' and Appellate Body's reasoning and a pparent modification of the burden of proof 
requirements raised serious concerns. For instance, the Appellate Body had found that in principle 
it would be possible for a proposed alternative measure to fail to achieve a Member's legitimate 
objective at the Member's chosen level if the alternative could somehow be perceived to compensate for that failure in some other area such that the overall degree of contribution of the 
alternative would be equivalent to the measure at issue.
3 The United States was concerned that 
this approach undermined a Member's ability to address legitimate objectives at the level the Member considered appropriate. Furthermore, it called on panels and the Appellate Body to make judgments as to how to value contributions to an objective in one way in an area compared to a 
different way in another area. This was a task for which panels and the Appellate Body had no 
guidance in the covered agreements and would appear to be a task unsuited to them, yet the consequences for Members could be quite significant. The United States was also concerned about 
the Appellate Body's finding that the Panels had not properly allocated the burden of proof under 
Article 2.2 of the TBT Agreement. Specifically, wh en bringing a claim under Article 2.2, and as 
approached under past analyses, it should be for the complainant to provide sufficient evidence to 
demonstrate that a proposed alternative measure was reasonably available, made an equivalent 
contribution to the legitimate objective, and wa s less trade-restrictive. The Appellate Body now 
suggested that a panel should consider examples  of the proposed alternative elsewhere in the 
world as potential evidence that the costs of a proposed measure were not a priori  prohibitive.
4 
The Appellate Body further suggested that the responding party was in a better position to provide 
evidence on this point. The United States was concerned that this relieved the complainants of the burden of demonstrating that a particular measur e was available to the Member in question by 
eliminating the need for specific information on availability of the proposed alternative in the 
context of that Member's market and regulatory regime. 
1.19.  The United States said that it would like to conclude its statement by touching on a familiar 
systemic issue that had been raised by the Pane l and Appellate Body Reports, the length of the 
proceedings. Article 21.5 of the DSU stated that a "panel shall circulate its report within 90 days after the date of referral of the matter to it". Ho wever, this provision also provided a panel with 
the flexibility to go beyond 90 days "when the panel considers that it cannot provide its report 
within this time-frame", although the United States could appreciate Mexico and Canada's 
frustration that the Panel proceedings had taken 13 months in light of the specific circumstances of 
this proceeding. As Members were aware, Article 17.5 of the DSU also included a deadline, and 
this provision explicitly stated that "in no case shall [Appellate Body] proceedings exceed 90 days". 
However, this provision had no clause equivalent to that in Article 21.5 of the DSU permitting the report to be circulated beyond the mandatory time frame "when the [Division] considers that it 
cannot provide its report within this time-frame". As a result, the fact that the Appellate Body had 
not circulated its Report for 172 days was not consistent with the text of this provision. The United States fully understood the difficulty that the Appellate Body had in meeting this 90-day deadline in this dispute, which was in part due to the fact that the disputing parties had requested 
a modified timeline for their submissions, among other legitimate reasons. As a result, when the 
Appellate Body had sent a notice to all three parties indicating that it would not be able to circulate its report within 90 days, the three parties had written to the Appellate Body to express their 
understanding of this situation, to provide their consent to the need for more time, and to request 
a meeting so that the Appellate Body could provide more information as to the date when the report would be circulated. For reasons that had still not been explained, the Appellate Body had 
rejected this joint request to meet with the parties to the dispute, contrary to its past practice. 
                                               
3 "US – COOL" (Article 21.5 – Canada/Mexico) (AB), paragraph 5.269. 
4 "US – COOL" (Article 21.5 – Canada/Mexico) (AB), paragraph 5.339. WT/DSB/M/362 
 
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  Despite this, the United States continued to offer its willingness to meet with the Appellate Body 
when this issue comes up in other disputes as well as to try to find a solution to both this ongoing problem of failing to adhere to the text of Ar ticle 17.5 of the DSU and the equally significant 
problem of Appellate Body workload. In fact, it was hard to conceive of a way that Members and 
the Appellate Body would be able to resolve these problems without engaging with each other 
directly. The United States stood by fully ready to engage constructively in such a dialogue. 
1.20.  The DSB took note of the statements. 
1.21.  The DSB adopted the Appellate Body Report contained in WT/DS384/AB/RW and the Panel 
Report contained in WT/DS384/RW and WT/DS384/RW/Add.1, as modified by the Appellate Body 
Report. 
1.22.  The DSB adopted the Appellate Body Report contained in WT/DS386/AB/RW and the Panel 
Report contained in WT/DS386/RW and WT/DS386/RW/Add.1, as modified by the Appellate Body 
Report. 
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