WT/DS386/29  
16 December 2014  
(14-7280)  Page: 1/3  
  Original: English  
 
  UNITED STATES – CERTAIN COUNTRY OF ORIGIN LABELLING (COOL) REQUIREMENTS 
 
RECOURSE TO ARTICLE 21.5 OF THE DSU BY MEXICO  
NOTIFICATION OF AN OTHER APPEAL BY MEXICO 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
The following notification, dated 12 December 2 014, from the Delegation of Mexico, is being 
circulated to Members.  
_______________ 
  
1. Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes  (DSU) and Rule 23(1) of the Working Procedures for Appellate Review , 
the United Mexican States (Mexico) hereby notifies its decision to appeal to the Appellate Body 
certain issues of law and certain legal interpretations developed by the Panel in United States – 
Certain Country of Origin Labelling (COOL) Requirements  – Recourse to Article 21.5 of the DSU by 
Mexico  (WT/DS386/RW) (Panel Report), and the Panel's failure to make an objective assessment 
of the matter as required by Article 11 of the DSU. 
 
2. Pursuant to Rule 23(2)(c)(ii) of the Working Procedures for Appellate Review , this Notice of 
Other Appeal includes an indicative list of the paragraphs of the Panel Report containing the 
alleged errors, without prejudice to Mexico's ability to refer to other paragraphs of the Panel 
Report in the context of this appeal.  
I. Appeal of the Panel's conclusion that Mexico did not make a prima facie  case that 
the amended COOL measure is more trade restrictive than necessary within the 
meaning of Article 2.2 of the TBT Agreem ent and the Panel's failure to make an 
objective assessment of the matter before it as required under Article 11 of the 
DSU 
 3. Mexico seeks review by the Appellate Body of the Panel's findings that Mexico did not make 
a prima facie  case that the amended COOL measure is more trade restrictive than necessary 
within the meaning of Article 2.2 of the Agreement on Technical Barriers to Trade 
(TBT Agreement).
1 The Panel's conclusion is in error and is based on erroneous findings on issues 
of law, related interpretations, and the Panel's failure to make an objective assessment of the 
matter before it as required by Article 11 of the DSU. The Panel erred:  
a. by finding that overall conclusions under Article 2.2 may not be drawn from the 
"relational analysis" in the first step of the "necessity test"
2, by improperly applying an 
"exceptional circumstances" requirement3, by failing to complete the "relational 
                                               
1 Panel Reports, US – COOL (Article 21.5) , paras. 7.612-7.613; Panel Report, US – COOL (Article 21.5 – 
Mexico ), para. 8.3(c). 
2 Panel Reports, US – COOL (Article 21.5) , para. 7.298. 
3  Ibid. WT/DS386/29 
 
- 2 - 
 
   analysis", and by failing to make a finding as to whether the amended COOL measure is 
more trade-restrictive than necessary at the conclusion of the "relational analysis".4 
b. by failing to properly consider and take into account the design and operation of Label E 
(the ground beef label) in its assessmen t of the amended COOL measure's degree of 
contribution to the fulfilment of the legitimate objective.5 
c. by limiting its assessment of the risks that non-fulfilment of the amended COOL 
measure's objective would create to consumer interest in country of origin information, 
and the willingness of consumers to pay the costs of obtaining country of origin 
information on product labels.6 
d. by failing to consider and take into account the relative importance of the interests or 
values furthered by the amended COOL measure and the design, architecture, revealing 
structure, operation and application of the measure in its assessment of the risks that 
non-fulfilment of the measure's objective would create.7 
e. by applying an erroneous approach to its assessment of the gravity of the consequences 
that would arise from non-fulfilment of the amended COOL measure's objective8, by 
failing to make an objective assessment of the matter before it as required by Article 11 of the DSU with respect to the arguments an d evidence put forward by the parties for 
the purpose of assessing the gravity
9, and by failing to make a finding on the gravity of 
the consequences that would arise from non- fulfilment of the amended COOL measure's 
objective.10 
f. by not completing the "comparative analysis" of the amended COOL measure with the 
first and second alternative measures because it was unable to determine the specific 
implications of risks of non-fulfilment of the amended COOL measure's objective11 for 
the purposes of evaluating whether the first and second alternative measures make an 
equivalent degree of contribution, taking into account the risks non-fulfilment would 
create.12  
g. by failing to undertake an assessment of whether the first and second alternative 
measures are reasonably available, less trade-restrictive and provide an equivalent 
contribution to the fulfilment of the amended COOL measure's objective.13 
h. by requiring Mexico to adduce unnecessarily precise explanations as to how the third and 
fourth alternative measures proposed by Mexico would be implemented in the 
United States14 and by failing to make an objective assessment of the matter before it as 
required by Article 11 of the DSU. 
                                               
4 Panel Reports, US – COOL (Article 21.5) , paras. 7.424-7.425. 
5 Panel Reports, US – COOL (Article 21.5) , paras. 7.343-7.345, 7.346-7.356 and footnote 785 to 
para. 7.347, citing data in paragraphs 7.258 and 7.262. 
6 Panel Reports, US – COOL (Article 21.5) , paras. 7.375, 7.381, 7.383, and 7.418. In this respect, the 
Panel erred in its interpretation of the Appellate Body's  reasons respecting the asse ssment of the risks that 
non-fulfilment would create under Article 2.2 in  the original proceedings. See Panel Reports, US – COOL 
(Article 21.5) , para. 7.375, citing Appellate Body Report, US – COOL , para. 478. 
7 Panel Reports, US – COOL (Article 21.5) , para. 7.379-7.380. 
8 Panel Reports, US – COOL (Article 21.5) , paras. 7.383, 7.418-7.420, 7.422-7.424. 
9 Panel Reports, US – COOL (Article 21.5) , 7.384-7.414, 7.416, 7.418-7.422. 
10 Panel Reports, US – COOL (Article 21.5) , paras. 7.423-7.424, 7.488, 7.501, and 7.611. 
11 Panel Reports, US – COOL (Article 21.5) , paras. 7.488 and 7.501. 
12 Panel Reports, US – COOL (Article 21.5) , paras. 7.488-7.491 and 7.501-7.503. 
13 Panel Reports, US – COOL (Article 21.5) , paras. 7.488, 7.491, 7.500, and 7.503.  This includes the 
Panel's error in interpreting and applying Article 2.2 of  the TBT Agreement by failing to make a finding that 
Mexico's second alternative measure would provide a contribution to the fulfilment of the amended COOL 
measure's objective that would be at least equivalent to that of the amen ded COOL measure, because it would 
provide exactly the same origin information as that required under Label E (the ground beef label) of the amended COOL measure. 
14 Panel Reports, US – COOL (Article 21.5) , paras. 7.564, 7.601-7.602, and 7.608-7.610. See also Panel 
Reports, US – COOL (Article 21.5) , paras. 7.522, 7.525, 7.526, 7.538, 7.542, 7.551-7.553, 7.556-7.557, 
7.559-7.560, 7.562-7.563, 7.599, 7.601, 7.602 and 7.609-7.610. WT/DS386/29 
 
- 3 - 
 
   II. Appeal of the Panel's finding that Label E (the ground meat label)  is not relevant to 
the legal analysis under Article 2.1 of the TBT Agreement 
 4. Mexico seeks review by the Appellate Body of  the Panel's erroneous finding that Label E (the 
ground meat label) is not relevant to the lega l analysis under Article 2.1 of the TBT Agreement.
15  
 III. Conditional appeal of the Panel's deci sion to exercise judicial economy with 
respect to Mexico's claim of non-viol ation nullification or impairment under 
Article XXIII:1(b) of the GATT 1994 
 5. In the event that the Appellate Body overtu rns the Panel's findings that the COOL measure 
is inconsistent with Article 2.1 of the TBT Agr eement and Article III:4 of the GATT 1994, Mexico 
appeals the Panel's decision to exercise judicial economy with respect to Mexico's claim of non-violation nullification or impairment under Article XXIII:1(b) of the GATT 1994 and asks the 
Appellate Body to complete the analysis.
16 
 
__________ 
 
                                               
15 Panel Reports, US – COOL (Article 21.5) , paras. 7.206-7.207 and 7.280. 
16 Panel Reports, US – COOL (Article 21.5) , paras. 7.716 and 8.4.