WT/DS384/R 
 WT/DS386/R 
 Page C-1 
 
 
  ANNEX C 
 
THIRD PARTY SUBMISSIONS 
 
Contents Page 
Annex C-1 Executive summary of the third party written submission of Australia C-2 
Annex C-2 Third party oral statement of Australia at the first substantive meeting C-7 
Annex C-3 Third party oral statement of Australia at the second substantive meeting C-11 
Annex C-4 Third party written submission of Brazil C-15 
Annex C-5 Third party oral statement of Brazil at the first substantive meeting C-19 
Annex C-6 Third party oral statement of Brazil at the second substantive meeting C-21 
Annex C-7 Third party oral statement of China at the second substantive meeting C-23 
Annex C-8 Executive summary of the third party written submission of Colombia C-24 
Annex C-9 Third party oral statement of Colombia at the first substantive meeting C-29 
Annex C-10 Third party oral statement of Colombia at the second substantive meeting C-32 
Annex C-11 Executive summary of the third party written submission of the European Union C-33 
Annex C-12 Executive summary of the third part y oral statement of the European Union at 
the first substantive meeting C-38 
Annex C-13 Executive summary of the third part y oral statement of the European Union at 
the second substantive meeting C-43 
Annex C-14 Third party oral statement of Guat emala at the first substantive meeting C-48 
Annex C-15 Executive summary of the third party written submission of Japan C-50 
Annex C-16 Executive summary of the third pa rty oral statement of Japan at the first 
substantive meeting C-54 
Annex C-17 Third party oral statement of Japan at the second substantive meeting C-57 
Annex C-18 Executive summary of the thir d party written submission of Korea C-61 
Annex C-19 Third party oral statement of Korea at the first substantive meeting C-63 
Annex C-20 Executive summary of the third party written submission of New Zealand C-65 
Annex C-21 Third party oral statement of New Zealand at the first substantive meeting C-69 
Annex C-22 Third party oral statement of New Zealand at the second substantive meeting C-72 
Annex C-23 Third party oral statement of Peru at the first substantive meeting C-74 WT/DS384/R 
WT/DS386/R Page C-2 
 
 
  ANNEX C-1 
 
EXECUTIVE SUMMARY OF THE 
THIRD PARTY WRITTEN SUBMISSION OF AUSTRALIA 
 
 
I. INTRODUCTION 
1. The US country of origin labelling requirement s (the "COOL measure") at issue in these 
proceedings raise significant systemic issues con cerning the legal obligations and rights of WTO 
Members under the Agreement on Technical Barriers to Trade (TBT Agreement) and the General 
Agreement on Tariffs and Trade 1994 (GATT 1994).   
II. THE MEASURE AT ISSUE 
2. Canada and Mexico have broa dly identified the measure at issue to encompass the 2008 
Interim Final Rule and the Vilsack Letter
1 in addition to the 2009 Final Rule and the 2002 COOL 
Statute, as amended.  Mexico has also included th e Food Safety and Inspection Service Interim Rule.  
The COOL measure thus identified covers many commodities and affects every stage of the supply 
chain.  Relevantly (given Australia's large expor ts of muscle cuts and manufactured ground beef), 
Australia notes ground beef (along with other ground meats) is subject to very particular COOL 
requirements under §65.300(h) of the 2009 Final Rule.  
3. Australia disagrees with the US contention that  Canada and Mexico ha ve failed properly to 
identify the measure at issue because they have not addressed the WTO consistency of all elements of 
the COOL measure.  In this regard, Au stralia notes the Panel's statement in EC-Sardines that a 
complaining party may elect to "identify and ch allenge only those offending provisions of the 
measure it deems central to its interest in resolving the dispute".2 
4. Like Canada and Mexico, Australia also regard s the Vilsack Letter as a measure which can be 
challenged in WTO dispute settlement proceedings.  It is an act direc tly attributable to the executive 
of a WTO Member.  The Vilsack Letter is an offici al document that sets out the official position of 
the US Department of Agriculture as mandated by the Secretary of the Department and is characterised by the Secretary as represe nting the will of the US Congress.   
III. THE AGREEMENT ON TECHNICAL BARRIERS TO TRADE  
A. D
EFINITION OF TECHNICAL REGULATION  
5. Australia considers the COOL measure meets th e three criteria identified by the Appellate 
Body in EC – Asbestos required to fall within the definition of  a "technical regulation" under Annex 1 
of the TBT Agreement,3 as it relates to named "covered commodities", provides for labelling 
requirements (as referred to in the definition of a tech nical regulation in Annex 1), and is of binding or 
compulsory nature. 
                                                      
1 US Secretary of Agriculture Thomas J. Vils ack's letter to Industry Representatives dated 
20 February 2009. 
2 Panel Report, EC – Sardines , para. 7.34. 
3 Appellate Body Report, EC – Asbestos , paras. 66-70, cited also in Appellate Body Report, EC –
Sardines , para. 176.  See Canada's first written submission, paras. 71-74 and Mexico's first written submission, 
paras. 238-260. WT/DS384/R 
 WT/DS386/R 
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  6. Australia notes Mexico directly addresses the manda tory nature of the Vilsack Letter.  The 
United States challenges Mexico's characterisation of the letter as mandatory.  In Australia's view, 
Mexico is correct in asserting that how the US De partment of Agriculture characterises the Vilsack 
Letter should not be determinative of  its character.  Instead, a critical question for the Panel is whether 
industry views this letter as mandating action. 
B. ARTICLE  2.1 OF THE TBT A GREEMENT  
7. There is limited direct guidance from WTO Panel and Appellate Body Reports on the 
application of Article 2.1 of the TBT Agreement.   However, Australia be lieves the Panel can be 
informed by the interpretation of the phrases " like product" and "treatment no less favourable" in 
GATT Article III:4. 
8. Australia notes the US argument that Canada and Mexico's "like product" analysis is deficient 
because the subject of the COOL measure is meat a nd not livestock.  Australia disagrees with this 
interpretation and believes Article 2.1 should be applied to count ry of origin labelling requirements, 
so as to encompass "like products" that, at whatever  point of the supply process, are required to be 
identified for the purposes of labelling the end product.  In other words, the application of the COOL 
measure to all early stage products, whether livestock,  muscle cuts or beef trimmings used in ground 
beef, should be subject to Article 2.1.   
9. In Australia's view, both Canada and Mexico ha ve clearly established that live cattle, and in 
the case of Canada, live hogs, are "like products" to US live cattle and hogs. 
10. Australia also submits that imported beef trimmings used for processing or grinding into 
ground beef in the United States are like products to  domestic (US) beef trimmings.  Imported beef 
trimmings have the same properties, nature and qua lity as the US product, and the same end uses as 
US beef trimmings, as both are processed into ground beef.  Finally, Australia also notes that 
imported beef trimmings and US beef trimmings th at are processed into ground beef are classified 
under the same subheading 0201 and 0202 under the Ha rmonised System of Tariff Classification.   
11. The objective of the "treatment no less favourab le" requirement is to provide "equality of 
opportunities" for imported goods.4  As part of this analysis, it is necessary to examine whether the 
COOL measure "modifies the conditions of competiti on in the relevant market to the detriment of 
imported products".5 
12. On its face, the COOL measure provides for form ally identical treatment of imported product 
as the same requirements to identify the origin of  the product apply equally to domestic product.  
However, the COOL measure has th e potential to accord different treatment to imported product that 
amounts to less favourable treatment within the meaning of Article 2.1 of the TBT Agreement because it results in additional ope rational costs on imported product. 
13. Australia does not object to identifying imported product on labels and does not agree with 
Mexico's claim that country of origin labellin g measures "are inherently protectionist and 
discriminatory".
6  As the United States submits, "there is not hing about country of origin labelling that 
                                                      
4 US – Section 337 of the Tariff Act , para. 5.11: see Canada's first written submission, paras. 87 and 88 
and Mexico's first written submission, para. 217, with reference to the Appellate Body Report, Korea – Various 
Measures on Beef , para. 137 and Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes , 
para. 93. 
5 Appellate Body Report, Korea – Various Measures on Beef , para. 137. 
6 Mexico's first written submission, para. 5. WT/DS384/R 
WT/DS386/R Page C-4 
 
 
  is inherently unfavourab le to imported products".
7  At times it may even favour imported product.  
Australia maintains its own mandatory country of origin labelling requirements and as an exporter of 
many products to countries with country of or igin labelling requirements seeks to ensure such 
requirements do not hinder international trade.   Australia notes many WTO Members maintain 
country of origin labelling requirements. 
14. However, Australia agrees with Mexico's cl aim that the COOL measure discriminates "by 
virtue of its design, structure and application".8  Australia's concerns focus on the higher cost burdens 
the requirements place on the use of imported produc t throughout the chain of supply.  The COOL 
requirements applicable to ground beef are an example of such de facto  discrimination, as labelling of 
all possible countries of origin in accordance with the 60 day inventory allowance could distort the 
market in favour of domestic product and is likel y to result in discrimination against imported 
product. 
15. Should the Vilsack Letter be found to be a "technical regulation", Australia agrees with 
Canada's assessment that the effect of the labelling practices in the letter "would severely curtail the 
ability to commingle meat from various countries of origin".9  Both production step labelling and 
extending coverage to processed meats would impo se higher costs where imported product is used.  
Further, a reduction in the ground meat inventory allowance to 10 days  as set out in the Vilsack Letter 
(from the 60 day requirement contained in the 2009 Final Rule) would reduce the minimal flexibility 
currently available to processors.  There woul d be a corresponding increase in compliance costs 
relating to traceability, record keeping and packaging or other forms of labelli ng as labels would have 
to be changed more frequently.   
C. ARTICLE  2.2 OF THE TBT A GREEMENT  
16. Article 2.2 of the TBT Agreement grants Member s the right to adopt technical regulations for 
the purpose of fulfilling legitimate objectives.  Austra lia submits the correct analysis under Article 2.2 
involves examination of: 
 whether the objective of the measure at issue is a legitimate objective; 
 whether the measure at issue is more trade-r estrictive than necessary to fulfil a legitimate 
objective, which in turn involves an assessment of: 
 whether the measure is trade-restrictive; 
 whether the measure is to fulfil a legitimate objective; and 
 whether there are other reasonably available alte rnatives that may be less trade-restrictive 
while still fulfilling the legitimate objective at the level of protection the Member 
considers appropriate; and 
 the risks non-fulfilment [of the legitimate objective] would create. 
17. Firstly, Australia submits that an examination of  the legitimacy of an objective is confined to 
an examination of whether the objective put forw ard by the respondent is legitimate within the 
meaning of Article 2.2.  The text of Article 2.2 provides that legitimate objectives include, among 
                                                      
7 United States' first written submission, para. 141. 
8 Mexico's first written submission, para. 5. 
9 Canada's first written submission, para. 28. WT/DS384/R 
 WT/DS386/R 
Page C-5 
 
 
  other things, the prevention of deceptive practices and the protection of human health and safety.   
Article 2.2 does not expressly restrict what might be legitimate objectives; the list is not exclusive.  
The United States has put forward the provision of cons umer information so as to minimise consumer 
confusion as the legitimate objective of the COOL measure.10  Australia regards enabling consumers 
to identify the source of a product a legitimate objective for the purposes of Article 2.2.     
18. Second, Australia considers that Article 2.2, in requiring that a challenged measure must be 
necessary "to fulfil a legitimate objective", means that  the measure must fulfil or at least have the 
capacity to fulfil, the legitimate objective.  The rele vant question in this dispute is whether the COOL 
measure does carry out, or has the capacity to car ry out, its stated objective of providing accurate 
additional consumer information. 
19. In Australia's view, Canada has identified aspect s of the COOL measure that do not appear to 
achieve that stated objective, particularly in the labelling of ground beef.11  In some respects, the 
COOL measure can in fact result in misleading and inaccurate information.  In particular, the 60 day 
inventory allowance could result in inaccuracy, as the label could identify the or igin of products not in 
fact used in the ground beef. 
20. Third, as noted by Canada and Mexico, GATT disciplines on the use of restrictions are meant 
to protect not "trade flows", but rather the "competitive opportunities of imported product".12  Trade-
restrictive measures therefore include those that impo se any form of limitation, discriminate against or 
deny competitive opportunities to imported product.  In Australia's view, the COOL measure limits 
trade by imposing recordkeeping and segregation cost s which are likely to be greater when imported 
product is used and thus impact on the co mpetitive opportunities of imported product. 
21. Australia notes that elements of the "necessity " analysis developed under GATT Article XX 
are similar to the elements contained in the language  of Article 2.2 of the TBT Agreement.  Applied 
to Article 2.2, establishing the necessity of the tr ade-restrictive elements of the COOL measure may 
require consideration of the extent to which the tr ade-restrictive elements make a contribution to the 
legitimate objective or contribute to the realisation of the end pursued: the greater the contribution the 
more easily the trade-restrictive elements of the measure might be considered necessary.13   
22. Thus, with respect to ground beef, the COOL measure does not appear to fulfil its objective 
and further, may be more trade-restrictive than necessary given the reasonable availability of other 
alternatives.   
23. One possible alternative would require labels to identify "domestic" or "imported" product 
(without specifying the particular country of origin).   This greater flexibility would enable processors 
to use imported product without needing to segregate product by country of origin or adjust recordkeeping practices to avoid financial penalties under the COOL measure.   
24. In summary, Australia considers that the trad e-restrictive aspects of the COOL measure are 
not necessary to fulfil the stated objective of provi ding accurate consumer information and that the 
                                                      
10 United States' first written submission, para. 206 .  The United States notified the "objective and 
rationale" as "consumer information" in its amended Notification to the Committee on Technical Barriers to 
Trade: G/TBT/N/USA/281/Add.1, 7 August 2008. 
11 Canada's first written submission, paras. 178-180. 
12 Canada's first written submission, para. 184 and Mexico's first written submission, para. 306 citing 
Panel Report, EC – Bananas III (Article 21.5 – Ecuador II) , at para. 7.330 and Panel Report, EC – Bananas III 
(Article 21.5 – US) , at para. 7.677. 
13 Appellate Body Report, Korea – Various Measures on Beef , paras. 160-163. WT/DS384/R 
WT/DS386/R Page C-6 
 
 
  objective of providing consumer information could be  fulfilled by the less trad e-restrictive alternative 
for ground beef outlined above. 
D. A
RTICLE  2.4 OF THE TBT A GREEMENT  
25. Mexico identifies the Codex General Standard for the L abelling of Prepackaged Foods  
("CODEX-STAN 1-1985") prepared by the Codex Comm ission as a "relevant" international standard 
upon which the COOL measure should be based.  Australia queries whether the purpose of the 
CODEX-STAN 1-1985 is relevant or bears upon the COOL  measure, which is not intended directly to 
address misleading or deceptive labelling practices (though it may complement such practices). 
26. In the alternative, should the Panel find that CODEX-STAN 1-1985 is a relevant standard that 
should have provided the basis for the COOL me asure, Australia considers that CODEX-STAN 1-
1985 is unlikely to be effective or appropriate in all cases to fulfil the legitimate objective of 
providing accurate cons umer information. 
IV. THE GENERAL AGREEMENT ON TARIFFS AND TRADE (GATT 1994) 
27. Australia notes the three elements that must be satisfied to establish a violation of GATT 
Article III:4: that the imported and domestic products are "like products"; that the measure at issue is 
a "law, regulation, or requirement affecting their internal sale, offering for sale, purchase, transportation, distribution, or use"; and that  the imported products are accorded "less favourable 
treatment" than that accorded to like domestic products.
14 
28. As under Article 2.1 of the TBT Agreement, Au stralia considers that the COOL measure has 
the potential to impose higher cost burdens on the use of imported product throughout the chain of 
supply and therefore provides less favourable treatment to imported product contrary to Article III:4 
of GATT 1994.   
V. CONCLUSION 
29. In Australia's view, contrary to the national treatment obligations in Article 2.1 of the 
TBT Agreement and Article III:4 of GATT 1994, the COOL measure has the potential detrimentally 
to affect the conditions of competition so as to discriminate against impor ted product, resulting in 
treatment less favourable for such products.   
30. Furthermore, Australia believes the COOL measure  is inconsistent with the obligation set out 
in Article 2.2 of the TBT Agreement, in that the tr ade-restrictive nature of the COOL measure is not 
necessary to fulfil its objective of providing accu rate consumer information, given less trade-
restrictive and reasonably available alternatives, in cluding that identified by Australia in relation to 
ground beef. 
 
                                                      
14 Appellate Body Report, Korea – Various Measures on Beef , para. 133. WT/DS384/R 
 WT/DS386/R 
Page C-7 
 
 
  ANNEX C-2 
 
THIRD PARTY ORAL STATEMENT OF AUSTRALIA 
AT THE FIRST SUBSTANTIVE MEETING 
 
 
I. INTRODUCTION 
1. Mr Chairman, members of the Panel. Thank you for the opportunity to present Australia's 
views on this dispute, which raises important issu es of legal interpretation.  Australia highlighted 
some of these issues in its written submission.  We will not repeat all of those arguments today. 
2. Instead, in this statement we will identify some  of the key questions which Australia believes 
the Panel should address in relation to the claims by  Canada and Mexico that the US COOL measure 
is inconsistent with Articles 2.1 and 2.2 of the TBT Agreement; and in relation to the arguments put 
by the United States to the contrary. 
3. Whilst noting the claims of Canada and Mexico extend beyond Articles 2.1 and 2.2, Australia 
has chosen to focus on these articles, and on th ese questions, because many of the questions have not 
yet been specifically addressed by a panel or the Appellate Body. 
II. QUESTIONS FOR THE PANEL'S CONSIDERATION 
A. WHAT IS THE NATURE OF THE COOL  MEASURE ? 
4. Canada and Mexico have broa dly identified the COOL measure to encompass a number of 
individual measures, which together make up the measure at issue in these proceedings.   
5. Australia submits that the Panel must decide  whether the COOL measure, as identified by 
Canada and Mexico, is a measure for the purpos es of dispute settlement under the DSU and a 
technical regulation for the purposes of the TBT Agreement.   
6. Of particular interest in this calculus, is th e Panel's characterisation of the so-called Vilsack 
Letter, sent by US Secretary of Agriculture Thomas J. Vilsack to Industry Representatives on 20 
February 2009. 
7. In Australia's view, the Vilsack Letter is an act directly attributable to the executive of a WTO 
Member, and therefore, consistent with  the Appellate Body's comments in US – Corrosion-Resistant 
Steel Sunset Review , challengeable in WTO dispute settlement proceedings.  The letter is an official 
document that sets out in detail the official position of the US Department of Agriculture as mandated 
by the Secretary of that department and is char acterised by the Secretary as representing the will of 
the US Congress. 
8. For the purposes of the definition of a technical regulation in Annex 1 of the TBT Agreement, 
a further consideration is whether the Vilsack Lette r is a mandatory element of the COOL measure.  
This issue is addressed by Mexico in its submi ssion.  Australia notes the argument by the United 
States that compliance with the Vilsack Letter is in  fact voluntary. However, Australia believes that 
none of the factors set out by the United States in support of this contention are necessarily determinative of whether the Vilsack Letter is in fact  mandatory, or "binding or compulsory".  Nor is 
the US Department of Agriculture's characterisati on determinative.  Rather, the critical question for 
the Panel to examine is whether industr y views the letter as mandating action.  WT/DS384/R 
WT/DS386/R Page C-8 
 
 
  B. T
O WHAT PRODUCTS DOES THE COOL  MEASURE RELATE ? 
9. Canada and Mexico have based their claims under Article 2.1 of the TBT Agreement (and 
Article III:4 of GATT 1994) on an analysis of 'like product' between Canadian and Mexican live cattle 
on the one hand, and US live cattle on the othe r; and between Canadian and US live hogs.   
10. Australia notes that the COOL measure applies broadly to a range of covered commodities, 
including beef trimmings for which Australia has a particular export interest.  In its third party 
submission, Australia also submits that imported beef trimmings are a like product to US domestic 
beef trimmings used in ground beef. 
11. In addressing this issue, the Panel should cons ider whether Canada and Mexico (with what 
appears to be agreement from the United States)  are correct in applying the GATT Article III:4 
analysis of like product to the analysis of lik e product under Article 2.1 of the TBT Agreement. 
12. Further, the Panel ought to reject the US argumen t that the subject of the COOL measure is in 
fact meat and not livestock, and therefore Canada and Mexico's claim fails, as they have not demonstrated that Canadian and Mexican meat is a like product to US meat. 
13. In this respect, Australia notes that such a na rrow interpretation of the phrase "in respect of 
technical regulations" in Article 2.1 would in fact undermine the application of the Article.  It would 
allow, for example, a country to actively discriminate against a broad range of source products, simply because those source products are not the subject of, or "in respect of" the actual technical regulation. 
14. Australia submits the better view, in particular  with respect to country of origin labelling 
requirements, is that Article 2.1 should be applie d so as to encompass like products that, at whatever 
point of the supply process, are required to be iden tified for the purposes of labelling the end product.  
Applied to the COOL measure, all early stage pr oducts, whether livestock, muscle cuts or beef 
trimmings used in ground beef, would be subject to the disciplines of Article 2.1. 
C. D
OES THE COOL  MEASURE PROVIDE FOR TREATMENT LESS FAVOURABLE ? 
15. Australia notes the approach taken by Cana da and Mexico drawing upon the analysis 
developed under GATT Article III:4 in determini ng whether the COOL measure provides for less 
favourable treatment to like products of non-na tional origin.  Should the Panel agree with this 
approach, then Australia believes the critical questio n for the Panel to examine is whether the COOL 
measure "modifies the conditions of competition in th e relevant market to the detriment of imported 
products" (as articulated by the Appellate Body in the Korea – Various Measures on Beef  dispute).   
16. In this case, where the measure provides for formally identical treatment on its face, the Panel 
should also consider whether the measure has th e potential to accord de facto less favourable 
treatment.  Canada and Mexico both seek to de monstrate the COOL measure accords differential 
treatment to imported livestock that amounts to le ss favourable treatment w ithin the meaning of 
Article 2.1 of the TBT Agreement.  Put simply, Ca nada and Mexico contend that the COOL measure 
results in additional operational costs on imported produc t, in particular with respect to segregation 
and recorC-keeping, than the costs it imposes when domestic product is used. 
17. Should the Panel agree with Canada and Mexico  on this point, then Australia would submit 
this does constitute differential (and less favourable) treatment for the purposes of Article 2.1 of the 
TBT Agreement. WT/DS384/R 
 WT/DS386/R 
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  18. Australia also believes this differential (and l ess favourable) treatment extends to ground beef, 
as another covered commodity of the COOL measure.  As the ground beef market in the United States 
is currently structured, it is more likely that US b eef trimmings used in ground beef will be present in 
the inventory of a production plant compared to imported beef trimmings from any one country.  
Accordingly, the impact of the COOL measure w ould be felt most heavily when imported product is 
used, creating an incentive for processors to fa vour domestic product (and to discriminate against 
imported product). 
19. Australia does not believe that country of orig in labelling schemes generally are "inherently 
protectionist and discriminatory", as claimed by Mexico in its submission.  Rather, the question for 
the Panel is whether the US COOL measure provid es (or has the potential to provide) treatment less 
favourable by virtue of its "design, structure and application". 
D. IS THE COOL  MEASURE 'S OBJECTIVE LEGITIMATE ? 
20. For the purposes of Article 2.2 of the TBT Agreem ent, Australia submits the Panel must first 
determine whether the objective of the measure at issue is legitimate.   
21. Consistent with the findings of the Appellate Body in the EC-Sardines dispute, Australia 
believes that an examination of legitimacy is c onfined to whether an examination of the stated 
objective, as put forward by the United States, is legitimate within the meaning of Article 2.2.  It does not extend to an examination of whether the stated objective is actually the objective of the measure.  
Rather, Australia invites the Panel to determine, with  regard to the text of Article 2.2, whether the 
United States' stated objective of the COOL measure  – to provide consumer information so as to 
minimise consumer confusion – is in fact legitimate.  
22. In Australia's view, the United States, throug h the COOL measure, is seeking to provide 
consumers with additional useful information.  Australia considers that such an objective is a 
legitimate objective, and accepts the US view that this objective is "closely related" to preventing 
deceptive practices.   
E. D
OES THE COOL  MEASURE FULFIL ITS LEGITIMATE OBJECTIVE ? 
23. Australia considers the Panel must then separat ely decide whether the COOL measure fulfils 
the stated objective.  Australia submits the Panel must determine whether the COOL measure actually 
carries out, or at least has the capacity to carry out, its stated objective of providing accurate additional consumer information.  Should the Panel conclude that a complainant has demonstrated 
that a measure does not or could not achieve its st ated objective, it would be open to conclude the 
measure does not meet the terms of the second sente nce of Article 2.2 and therefore amounts to an 
unnecessary obstacle to trade within the meani ng of the first sentence of Article 2.2. 
24. In this regard, Australia notes Canada's argumen ts in particular, that the COOL measure does 
not appear to achieve its stated objective of provid ing accurate consumer information, with respect to 
the labelling of meat products derive d from livestock and of ground beef. 
F. A
RE THERE ANY REASONABLY AVAILABLE ALTERNATIVES ? 
25. Australia submits that the correct analysis ca lled for under Article 2.2 also requires the Panel 
to decide whether there are other reasonably availabl e alternatives that may be less trade-restrictive 
while still fulfilling the legitimate objective at th e level the respondent considers appropriate. WT/DS384/R 
WT/DS386/R Page C-10 
 
 
  26. Australia notes that the complainants, as well as a num ber of third parties to this dispute, have 
highlighted a number of reasonably available alte rnatives, including: voluntary labelling schemes; 
labelling schemes based on s ubstantial transformation; and, in Australia's case, mandatory labelling 
which identifies imported or domestic product (without specifying the particular country of origin). 
27. Australia submits if the alternative of marki ng product with 'imported' or 'domestic' were 
adopted, this would achieve greater accuracy with respect to the labelling of ground beef and be less 
trade-restrictive than the existing requirements unde r the COOL measure.  None theless, the objectives 
of the COOL measure would still be met: accurate, additional information would be available to 
consumers, in particular whether the source of th e product was domestic or foreign.  Adopting this 
approach would reduce associated segregation and r ecordkeeping costs, as pr ocessors would not need 
to segregate product by each particular country of or igin.  Notably, processors would always have the 
option of voluntarily identifying specific countries of origin if consumer demand justified the 
additional cost. 
III. CONCLUSION 
28. In conclusion, Australia considers the Panel should pay careful attention to the following 
questions, amongst others, in assessing th e consistency of the COOL measure: 
 What is the nature of the COOL measure? 
 To what products does the COOL measure relate? 
 Does the COOL measure provide for treatment less favourable? 
 Is the COOL measure's objective legitimate? 
 Does the COOL measure fulfil its legitimate objective? 
 Are there any reasonably available alternatives? 
29. Australia considers, in general, that mandatory  country of origin labelling regimes must be 
designed and implemented in the least trade-restri ctive manner possible so that imported products are 
not subject to less favourable treatment than like domestic products due to la belling requirements.   
30. In Australia's view, contrary to the national treatment obligations in Article 2.1 of the 
TBT Agreement and Article III:4 of GATT 1994, the COOL measure has not been designed in such a 
manner.  It has the potential to detrimentally affect the conditions of competition so as to discriminate against imported product, resulting in trea tment less favourable for such product. 
31. Furthermore, in Australia's view, the COOL measu re does not appear to be consistent with the 
obligation set out in Article 2.2 of the TBT Agreement in that the trade-restrictive nature of the COOL 
measure is not necessary to fulfil its objective given the less trade-restrictive and reasonably available alternatives identified by the parties and third parti es, including by Australia in relation to ground 
beef.   
32. Australia would be pleased to provide answers to  any questions from the Panel, including as 
requested on Australia's mandatory co untry of origin labelling regime. 
 WT/DS384/R 
 WT/DS386/R 
Page C-11 
 
 
  ANNEX C-3 
 
THIRD PARTY ORAL STATEMENT OF AUSTRALIA 
AT THE SECOND SUBSTANTIVE MEETING 
 
 
I. INTRODUCTION 
1. Mr Chairman, members of the Panel, thank you for this further opportunity to present 
Australia's views in this dispute, and in particul ar, for the opportunity to participate in this second 
panel hearing.   
2. In this statement we have chosen to focus on so me of the key questions the Panel may wish to 
address in its consideration of Article 2.2 of the TBT Agreement. 
II. QUESTIONS FOR THE PANEL'S FURTHER CONSIDERATION 
A. HOW SHOULD THE PANEL APPROACH ITS INTERPRETATION OF ARTICLE  2.2 OF THE 
TBT A GREEMENT ? 
3. One such question is how the Panel should approach its interpretation of this Article.  
4. Australia submits that the second sentence of Article 2.2 elaborates on the meaning of the 
fundamental discipline in the first sentence. T hus the elements in the second sentence must be 
considered in the context of the overarching commitm ent to ensure that technical regulations are not 
unnecessary obstacles to international trade.   
5. Accordingly, Australia agrees with the principa l parties that the first threshold question for 
the Panel to address under Article 2.2 is whether a t echnical regulation is 'trade restrictive' or an 
'obstacle to international trade'.  
6. Australia notes that GATT disciplines on the use of restrictions are meant to protect the 
competitive opportunities of imported products rather than trade flows.1 Given this, Australia agrees 
with Canada and Mexico that a measure may be tr ade restrictive if it imposes any form of limitation 
on imports, discriminates against imports or denies competitive opportunities to imports.   
7. If the measure is found to be trade restrictive,  Australia submits that the Panel must then 
determine whether it is more trade restrictive th an necessary to fulfil a legitimate objective, taking 
account of the risks non-fulfilment would creat e, in accordance with the second sentence of 
Article 2.2. In other words, the Panel must assess whether the measure is an unnecessary  obstacle to 
international trade. 
B. HOW SHOULD THE PANEL APPROACH ITS ASSESSMENT OF THE LEGITIMACY OF THE OBJECTIVE 
OF THE COOL  MEASURE ? 
8. The next question Australia would like to address is how the Panel should approach its 
assessment of the legitimacy of th e objective of the COOL measure. 
                                                      
1 See citations in Australia's third party written submission, para. 71. WT/DS384/R 
WT/DS386/R Page C-12 
 
 
  9. Australia considers that the correct approach is  first to establish the objective of the measure 
and then to consider the legitimacy of that objectiv e, taking into account the fundamental obligation in 
the first sentence of Article 2.2. 
10. In making its preliminary determination of the obj ective of the measure, Australia agrees with 
the United States that the Panel should start with the text of the measure.
2  
11. Broader evidence relevant to the development of a measure may be considered by the Panel in 
making this determination.  Howe ver, in Australia's view, the Panel should not lightly overturn the 
stated objective of a measure.   
12. Australia notes that some parties and third parties have argued that for objectives not 
specifically listed in Article 2.2, including, in th is case, the provision of consumer information, a 
Member must provide 'clear and compelling evidence'3 of its legitimacy. This includes evidence of a 
wider intent to implement a particular policy goal.  
13. The inclusion of the term inter alia  before the list of objectives in Article 2.2 clearly indicates 
this list is non-exhaustive. Further, the TBT Agre ement affords flexibility to Members to implement 
technical regulations to pursue any numbe r of legitimate domestic policy objectives. 
14. Setting high thresholds for objectives not listed in Article 2.2 runs the risk of curtailing this 
flexibility. It may also result in Members attempting to artificially adjust the 'official' objective of a 
regulation so that it fits neatly within one of the listed objectives.  
15. Australia believes the objective of providing cons umer information is closely related to the 
prevention of deceptive practices. Providing additio nal accurate information about a product also 
assists consumers to make informed purchasing deci sions. In Australia's view, the provision of 
consumer information is clearly a legitimate objective for the purposes of Article 2.2.     
C. HOW SHOULD THE PANEL APPROACH THE QUESTION OF WHETHER THE COOL  MEASURE 
FULFILS THE LEGITIMATE OBJECTIVE ? 
16. Moving on to the next question, Australia su bmits that the Panel must assess whether the 
COOL measure 'fulfils' its legitimate objective. In this regard, assuming that the objective of the 
measure is to provide information to consumers a nd prevent consumer confus ion, the COOL measure 
must actually carry out, or at least have the capacity to carry out, this objective. 
17. Although we agree that a Member has some di scretion to pursue legitimate objectives at the 
levels it considers appropriate, th is discretion does not extend to a Member being able to introduce 
measures that do not actually fulfil, or are not capable of fulfilling, the legitimate objective.  
18. In this case, evidence that may be relevant to  this enquiry includes whether the information 
provided to consumers under the COOL measure is potentially inaccurate or misleading. Australia 
notes the example of the application of the COOL m easure in relation to ground beef where a country 
of origin may potentially be listed on the label of a product that does not in fact include any product 
from that country.  
                                                      
2 United States' second written submission, para. 119. 
3 Canada's second written submission, para. 70;  New Zealand's written submission, para. 32. WT/DS384/R 
 WT/DS386/R 
Page C-13 
 
 
  D. TO WHAT EXTENT IS IT UP TO THE RELEVANT MEMBER TO STRIKE A BALANCE BETWEEN 
FULFILLING THE LEGITIMATE OBJECTIVE AND REDUCING TRADE RESTRICTIVENESS ?  
19. The United States emphasises that the TBT Agre ement allows Members to design measures 
to achieve legitimate objectives at th e level they consider appropriate.4 Given this, the United States 
argues that the COOL measure was specifically desi gned to strike what it considers to be an 
appropriate balance between achieving its objec tive of providing consumer information whilst 
reducing the costs of compliance.5  
20. Australia agrees that a Member can exercise some discretion in pursuing measures that 
achieve its legitimate objectives at the levels it consid ers appropriate.  However, there is a limit to that 
discretion. The panel in EC – Sardines  emphasised that although the TBT Agreement accords a 
degree of deference with respect to the policy objec tives Members may wish to pursue, 'it shows less 
deference to the means which Members choose to employ to achieve their domestic policy goals'6. 
21. This is reflected in the preamble to the TBT Agreement which includes the caveat that a 
measure must not be applied in a manner which woul d constitute a 'means of arbitrary or unjustifiable 
discrimination'. In the specific context of Article 2. 2, the check on a Member's discretion is borne out 
in the question of whether the measure is an unnecessary  obstacle to international trade. And, as 
discussed, this may in turn necessitate a considerati on of the factors set out in the second sentence of 
Article 2.2. 
22. It is Australia's view that although it is up to the United States to decide which policy 
objectives they wish to pursue and the levels at whic h they wish to pursue them, it is for the Panel to 
determine whether the means by which the United St ates has chosen to achieve this – the COOL 
measure – are more trade restrictive than necessary to fulfil the legitimate objective to the extent 
identified by the United States. 
E. HOW 'IMPORTANT ' IS THE OBJECTIVE OF PROVIDING CONSUMER INFORMATION AND TO WHAT 
EXTENT SHOULD THE PANEL SHOULD TAKE THIS INTO CONSIDERATION ? 
23. Australia submits that a finding as to whether a technical regulation is 'more trade restrictive 
than necessary to fulfil a legitimate objective' must be weighed against the risks non-fulfilment of the 
particular legitimate objective would create. If the ri sks associated with non-fulfilment of a particular 
objective are high, a measure may still be justified regardless of its trade-restrictiveness.   
24. Australia agrees that such risks may differ depending on the nature  or, as suggested by 
Canada, the importance  of the legitimate objective the measure is designed to fulfil.7  
25. Australia is however concerned by any impli cation that the COOL measure's objective of 
providing additional consumer inform ation is of low importance.  
26. Australia emphasises that providing consumer in formation can be an important objective.  
This is particularly the case given the increasingl y globalized and complex supply chains for products 
such as beef and other consumables.  The importanc e of providing consumer information is evidenced 
by the significant number of Members which mainta in, or intend to maintain, a COOL scheme of 
some description.  
                                                      
4 United States' second written submission, para. 154. 
5 United States' first written submission, para. 238. 
6 Panel Report, EC – Sardines , para. 7.120 . 
7 Canada's second written submission, para. 86. WT/DS384/R 
WT/DS386/R Page C-14 
 
 
  27. The parties have acknowledged that COOL schemes are not per se WTO inconsistent.
8  
Australia would therefore caution that a finding that  the objective of providing consumer information 
is of such a low order that only limited trade restrictiveness would be justifiable may have the 
practical effect that no Member can maintain or implement COOL measures for the purpose of 
providing information to its consumers. 
F. WHAT IS THE RELEVANT EVIDENTI ARY THRESHOLD WHEN CLAIMING DE FACTO  
DISCRIMINATION ?  
28. Finally, Australia also wishes to briefly comment  on the evidentiary threshold that must be 
met when claiming de facto  discrimination under the national treat ment principle in Article III:4 of 
the GATT 1994 and Article 2.1 of the TBT Agreement.  
29. In particular, Australia notes the submission by  the European Union that there is a 'high 
threshold and a need for particular rigour' in proving a de facto  discrimination case.9 In addition, the 
European Union has suggested that it may be n ecessary for a complainant to wait for an undefined 
period of time to accurately assess the impacts of the regulation to determine whether there are equal 
opportunities for the different goods concerned.10  
30. Australia wishes to emphasise that the national tr eatment principle 'protects expectations' of 
the equality of the competitive relations hip between imported and domestic products.11  This approach 
is necessary to avoid the situation where a Member  is only able to challenge regulations after the 
event and not in order to forestall less favourable treatment.12    
31. Australia recalls its argument in relation to  ground beef that the COOL measure has the 
potential to impact on the competitive opportunities of  imported products to th e detriment of those 
products. 
III. CONCLUSION 
32. To conclude, in this statement we have s ought to highlight some of the key issues of 
interpretation surrounding Article 2.2 of the TBT Agreement, a provision on which there has been 
limited guidance to date.   
33. In particular, Australia submits that the Pa nel's assessment of the trade-restrictiveness 
inherent in the COOL measure's structure and design,  and its ability to fulfil its legitimate objective, 
may be particularly relevant cons iderations in determining whether the COOL measure is inconsistent 
with Article 2.2.   
34. Australia would be pleased to answer any questions from the Panel.  
 
                                                      
8 See, for example, Canada's responses to the Pane l's questions from the first substantive meeting, 
para. 73; Mexico's Responses to the Panel's questions from the First Substantive Meeting, para. 103. 
9 Replies to the First Questions by the European Union, para. 32. 
10 Ibid, para. 29-30. 
11 Appellate Body Report, Japan – Alcoholic Beverages II, page 16 ; GATT Panel Report, US – Section 
337 Tariff Act,  para. 5.13; Appellate Body Report, US – FSC  (Article 21.5 – EC) , para. 215; Panel Report, 
Korea – Various Measures on Beef , paras. 623-, 627. 
12 GATT Panel Report, US – Section 337 Tariff Act,  para. 5.13. WT/DS384/R 
 WT/DS386/R 
Page C-15 
 
 
  ANNEX C-4 
 
THIRD PARTY WRITTEN SUBMISSION OF BRAZIL 
  
I. INTRODUCTION 
1. Brazil welcomes this opportunity to provide its  views in these proceedings. As one of the 
largest producers and exporters of some of the co mmodities covered by the measures at issue in this 
dispute, Brazil has significant interests in the outcome  of this dispute, the factual analysis to be 
conducted by the panel and the lega l interpretation to be develope d. Moreover, not only the United 
States but also many other large markets for Braz ilian products have been applying a growing number 
of technical barriers to trade, of increasing complexity. 
2. Brazil believes that better consumer information may be beneficial to the economy and to the 
society at large, as it may allow more informed purchasing decisions by consumers. However, Brazil 
is especially concerned with the risk posed by so me measures, such as labelling requirements, which 
might open a new avenue for disguised protectionism if not properly disciplined. Therefore, their consistency with the covered ag reements should be evaluated w ith utmost caution by panels. 
3. One of the critical aspects when dealing with  technical regulations is the difficulty in 
determining whether a specific measure responds prim arily to a public interest or to protectionist 
interests. Sometimes the problem is compounded by the fact that both motives may be combined in a 
single technical regulation. Thus, a panel should always carefully analyse not only the alleged 
justification, but also the design and operation of specific measures in this domain. 
II. INTERPRETATION OF TBT ARTICLE 2.2 
4. Both complainants claim that the COOL measure violates, among others, Article 2.2 of the 
Agreement on Technical Barriers to Trade ("TBT Agre ement"). In this connection, Brazil would like 
to offer its views on some elements that it belie ves should be taken into  account in the panel's 
interpretation of Article 2.2. 
5. Article 2.2 establishes that: 
"Members shall ensure that technical regula tions are not prepared, adopted or applied 
with a view to or with the effect of creating unnecessary obstacles to international trade.  For this purpose, technical regulations  shall not be more trade-restrictive than 
necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment 
would create.  Such legitimate objectives are, inter alia:  national security requirements;  the prevention of deceptive pr actices;  protection of human health or 
safety, animal or plant life or health, or the environment.  In assessing such risks, 
relevant elements of consideration are, in ter alia:  available scientific and technical 
information, related processing technol ogy or intended enC-uses of products." 
6. The reading of this article suggests that the fo llowing sequence of analysis may be useful in 
assessing compliance with Article 2.2 of the TB T Agreement: (i) first, the Panel should assess 
whether the objective stated by the regulating Memb er is "legitimate"; (ii) second, if the stated 
objective is found to be legitimate, the Panel shoul d evaluate whether the actual measure at issue 
bears a rational link with the stated objective.  If that  is the case, then (iii) the measure at issue should 
be subject to the "necessity test" that is provided under  Article 2.2.  Such a test entails an assessment 
of whether the technical regulation in question is more trade-restrictive than necessary to fulfil the WT/DS384/R 
WT/DS386/R Page C-16 
 
 
  legitimate objective in point.  This assessment may include, inter alia, consideration of the degree of 
trade-restrictiveness of the technical regulation; its  effectiveness in fulfilling the given objective; and 
possible less trade-restrictive alternative measures which might be reasonably available. 
A. "M
ORE TRADE -RESTRICTIVE THAN NECESSARY " 
7. The interpretation of the phrase  "more trade-re strictive than necessary " in Article 2.2 can 
draw – as relevant context and as acknowledged by the parties – on the interpretation of the term 
"necessary" in Article XX of the GATT 1994 and on th e combined reading of Article 5.6 and footnote 
3 of the Agreement on the Application of Sanita ry and Phytosanitary Measures ("SPS Agreement"). 
Although Brazil agrees with the contextual impor tance of these provisions, one should be cautious 
with the US approach regarding the importation of the "significantly" less trade restrictive standard 
from footnote 3 to Article 5.6 of the SPS Agreement into Article 2.2 of the TBT Agreement, as that 
term is found only in that specific agreement. 
8. The letter sent by the GATT Director-General to  the U.S Chief Negotiator, mentioned by the 
United states in Paragraph 248 of its submission, do es not serve – in Brazil's view – as confirmation 
that the standard set out in footnote 3 to the SPS Agreement applies to the TBT Agreement.  Brazil 
disagrees that a letter sent by the then Director-G eneral to only one WTO Member may, by itself, 
inform the meaning of a multilateral agreement. Mo reover, as that same letter acknowledges in the 
passage immediately preceding the citation made by the U.S., "…it was not possible to achieve the 
necessary level of support for a US proposal [concerni ng a clarifying footnote to Article 2.2 and 2.3 of 
the TBT Agreement]…"1 
9. In addition, Article 2.2 expressly provides that this "necessity test" must take account of, and 
thus be informed by, the risks that could be cr eated by non-fulfilment of the legitimate objective 
contemplated by the measure.  Brazil comments on some of these elements below. 
B. ASSESSMENT OF THE PURSUED OBJECTIVES  
10. The first two elements of the sequence indicated above are, first, whether the objectives stated 
by the regulating Member are "legitimate" and, second, if the stated objectives are found to be 
legitimate, whether the actual measures at issue bear  a rational link with the stated objectives.  Both 
questions involve factual issues that the Pane l must assess based on the evidence before it.  
11.  In the present dispute, the United States clai ms that its "COOL measures" qualify as technical 
regulations, have the stated objective of providi ng information to consumers and are an adequate 
means to achieve that objective, which the United States deems legitimate under Article 2.2.2  
12. A Member imposing a technical regulation is en titled to define its objective or objectives.  
This does not mean, however, that a panel has no role to play in determining whether the actual 
objectives of the technical regulation are "legitimate."  In EC – Sardines, with respect to article 2.4 of 
the TBT, the Appellate Body agreed with the pane l that it was "required to determine the legitimacy 
of [the] objectives" for claims asserted under Article 2.4 of the TBT Agreement:3 
                                                      
1 Exhibit US-53. 
2 United States' first written submission, para. 131. 
3 Panel Report, EC – Sardines , para. 7.121. WT/DS384/R 
 WT/DS386/R 
Page C-17 
 
 
  … we share the view of the Panel that the second part of Article 2.4 implies that there 
must be an examination and a determinati on on the legitimacy of the objectives of the 
measure.4  
13. The same reasoning is equally valid under Article 2.2. 
C. "TAKING INTO ACCOUNT THE RISKS THAT NON -FULFILMENT WOULD CREATE " 
14. Another interpretative issue raised by Article 2.2 is the meaning and scope of the ending 
clause of the second sentence: "… technical regulati ons shall not be more trade-restrictive than 
necessary to fulfil a legitimate objective, taking acc ount of the risks non-fulfilment would create."  
This phrase must be read together with an illustrative list of  factors in the last sentence of Article 2.2 
that regulating Members must "tak[e] account" "in assessing such risks".  Together, these Article 2.2 
provisions require that a Member proposing a technical regulation must assess the risks that would arise if the legitimate objective in question were not fulfilled.  This involves assessing the importance 
of the objective and the harm that could arise if the legitimate objective were not met. 
15. Such risks would have to be assessed qualitativel y and/or quantitatively by the Member.  In 
Brazil's view, an essential part of this aspect of th e risk assessment would be to assess the importance 
of the legitimate objective.
5  For example, if the legitimate objective were the protection of human life 
and health, then the risks of non-fulfilment would likely be extremely high.  If the objectives were different, the risks could be lower.  The result of such risk assessment would then have to be brought 
to bear on the inquiry as to the necessity of the t echnical regulation in light of its degree of trade-
restrictiveness and thus as to whether it is more trade restrictive than necessary to fulfil the given 
objective. 
16. These risk assessment provisions in Article 2.2 are an integral part of the core obligation in 
Article 2.2, i.e., that a "technical regulation [not be] more trade-restrictive than necessary to fulfil a 
legitimate objective."  Where an assessment of the ri sks of non-fulfilment shows that these would be 
negligible, the proposed technical regulation may lik ely be not "necessary", or more trade restrictive 
than necessary, within the meaning of Article 2.2.  
17. Translating these considerations into the circ umstances of the present case, it seems that the 
question to be asked would be about the risks, or consequences, of consumers in the United States not 
being informed, in all instances, of the origin of  the covered commodities. The underlying issue here 
would also revolve around what confers "origin", acco rding to consumers' perception, to, for example, 
processed beef.  On a more fundamental level, it may become relevant to consider what the concept of 
"origin" implies in multinational or regional integrat ed economic sectors. With relation to the covered 
commodities, it may be important to understand how and to what extent place of birth, feeding, 
slaughtering and processing (and even the geographic or igin of the genetic material) have a bearing on 
the assignation of "origin".  
18. Additionally, the panel may also want to asse ss the added value provided by the information 
given to consumers, relative to products that, acco rding to the United States, do not seem to represent 
very significant import shares
6.  On the basis of the specific facts of the present dispute, the Panel may 
want to consider whether the trade-restrictiven ess caused by the COOL measu re bears any correlation 
with the importance of the objective and the alle ged commercial impact the measure is having. 
                                                      
4 Appellate Body Report, EC – Sardines , para. 286.   
5 See, e.g., Appellate Body Report, Korea – Various Measures on Beef , para. 164. 
6 United States' first written submission, paras. 90 and 108. WT/DS384/R 
WT/DS386/R Page C-18 
 
 
  19. Furthermore, the complainants submit, as alte rnative less trade-restrictive measures, the 
possibility of voluntary country-of-origin labelling.  The United States rebuts this allegation affirming 
that such an option has already b een attempted, with little adhesion, and therefore, in its view, the 
objective of informing consumers was not achieved
7.  It may be relevant to inquiry whether this 
absence of participation of producers and retailers is not due to perceived considerable costs and 
insufficient consumer interest in labelling information. 
20. In the light of the above considerations, it must also be noted that the wording of Article 2.2, 
by linking the legitimacy of objectives, the need to  avoid unnecessary trade restrictions and the need 
to assess the risks of non-fulfilment of a legitimate objective, follows a rationale that suggests the 
search for a balance between ends and means of a technical regulation vis-à-vis its effects on trade. 
Therefore, when assessing conformity with Article  2.2, the Panel should ascertain whether this 
balance has been met by the technical regulation at  issue, on the basis of the evidence before it. 
III. CONCLUSION 
21. Brazil appreciates the opportunity to comment on the issues at stake in this dispute, and hopes 
this submission may assist the Panel in examining the matter. 
 
                                                      
7 United States' first written submission, paras. 252-253. WT/DS384/R 
 WT/DS386/R 
Page C-19 
 
 
  ANNEX C-5 
 
THIRD PARTY ORAL STATEMENT OF BRAZIL 
AT THE FIRST SUBSTANTIVE MEETING 
 
 1. Mr. Chairman, distinguished Members of the Panel, Brazil appreciates the opportunity to 
appear before you and present its views as a Third Party in the current proceedings.  Our statement 
today will be very brief and concentrate on a fe w issues related to the interpretation of the 
TBT Agreement – in particular its Article 2.2. 
2. It has been noted that the list of "legitimate objectives" contemplated by Article 2.2 is not a 
closed one.  It is precisely for this reason that, in Brazil's view, the interpretation of Article 2.2 should 
be approached with a high degree of caution.  Ev en though it may be open to a Member to elect which 
objectives it considers "legitimate" and adopt technical regulations in order to fulfil those objectives, 
such discretion is not unbounded.  Otherwise, highl y trade-restrictive measures could be put in place 
to meet objectives that, no matter how unreasona ble under generally accepted criteria, could be 
unilaterally deemed "appropriate" by th e Member implementing the regulation. 
3. The United States asserted that "each Member has the right to decide for itself which 
legitimate objectives to pursue and to take measures to  meet those objectives 'at the levels it considers 
appropriate'."
1  Brazil would first note that, while the United States takes the reference to the "levels it 
considers appropriate" from the preamble to th e TBT Agreement, this expression appears in the 
preamble – unlike Article 2.2 – in connection with only a limited set of objectives, which include the 
protection of human, animal or plant life or health  and the prevention of deceptive practices, but not, 
for example, the provision of information to consum ers.  Thus the assertion that a Member may take 
measures "at the levels it considers appropriate" to  meet any legitimate objective it elects to pursue 
does not have a direct legal basis in the TBT Agreement. 
4. Second, as stated in its third party submission, Brazil considers that the Panel has a role to 
play in determining whether the actual objectiv es of the technical regulation in question are 
"legitimate".  Brazil does not take a position as to  whether the specific objectives pursued by the 
United States with the COOL measures are legitimate or not within the meaning of Article 2.2 of the 
TBT Agreement.  In any event, Brazil agrees with Mexico that, for the purposes of the assessment of 
a measure under Article 2.2, an objective should not be  defined at such level of generality that would 
render it always necessarily "legitimate", but rather at a level of specificity that corresponds to the 
measure in point.2 
5. As I noted a moment ago, although the list of objectives envisaged by Article 2.2 is not 
exhaustive, this does not mean that there are no limits to the discretion of Members implementing 
technical regulations .  In addition to the issue of  the legitimacy of the objectives pursued – an issue 
that can, and should, be addressed by the Panel -, a further check is provided by the clause "taking 
account of the risks non-fulfilment would create".  As  Brazil indicated in its third party submission, 
this provision invites an assessment of the importanc e of the (presumably legitimate) objectives being 
pursued and the harm that could arise if those objectives were not fulfilled. 
6. In the circumstances of the present dispute, th e United States seems to be arguing that, if the 
objectives being pursued by the COOL measures were  not fulfilled, consumers would be confused 
about the origin of the products at issue.  In Brazil' s view, this is an important part of the analysis 
                                                      
1 United States' opening statement at the first Panel meeting, para. 36. 
2 Mexico's opening statement, para. 36. WT/DS384/R 
WT/DS386/R Page C-20 
 
 
  under Article 2.2 – one that should be subject to careful scrutiny by the Panel.  Some relevant 
questions would be (i) whether consumers would indeed  be left in a state of confusion if the specific 
objectives sought with the COOL measures were not fu lfilled; and (ii) what would be the extent and 
nature of such confusion.  An inquiry into these questions would help reveal the "risks non-fulfilment 
would create".  Such risks, in turn, would then be brought to bear on the assessment of the necessity 
of the technical regulation in light of its degree of trade-restrictiveness and thus on whether it is more 
trade restrictive than necessary to  fulfil the given objectives. 
7. As a final and more general remark, Brazil would urge the Panel to look with special care at 
arguments which seek to attribute views, desires or ta stes to consumers.  Such views, desires or tastes 
should not be lightly assumed but rather substantially b acked by evidence.  It is  also in this connection 
that Brazil takes issue with the European Union's statement that "if a domestic political process leads 
to mandatory origin labelling, that may reasonably be taken as an indication that consumers want it."
3  
This would seem extreme, since the mandatory labelling scheme – or any technical regulation justified on the grounds of consumer demand, for that matter – would constitute itself the evidence 
that consumers want it. Such a view should be rejected. 
8. Mr Chairman, Members of the Panel, this concludes our brief statement.  Thank you for your 
attention. 
                                                      
3 European Union's third party written submission, para.41. WT/DS384/R 
 WT/DS386/R 
Page C-21 
 
 
  ANNEX C-6 
 
THIRD PARTY ORAL STATEMENT OF BRAZIL 
AT THE SECOND SUBSTANTIVE MEETING 
 
 1. Mr Chairman, distinguished members of the Panel, it is a pleasure to appear before you today.  
In our statement this morning we will briefly addr ess two issues: (i) the question of whether different 
instruments could be considered together as a singl e measure; and (ii) the treatment that the Panel 
should give to the unsolicited letter addressed to it by the Consumers Union.
1 
2. With regard to the first issue, the United Stat es asserts that the Panel should not make findings 
with regard to a single "COOL measure", since the se parate instruments that the complainants identify 
as composing that measure are substantively and legally distinct.  The United States thus affirms that the Panel is effectively required to  examine those instruments separately.
2 
3. In Brazil's view, the fact that separate instru ments or measures differ in their substance or 
legal status does not preclude the possibility that they, operating together , violate specific provisions 
of the WTO agreements.  Article 3.3 of the DSU provides that one of the purposes of the dispute settlement system is to address "situations in which a Member considers that any benefits accruing to 
it directly or indirectly under the cove red agreements are being impaired by measures  taken by 
another Member".  Nothing in Article 3.3 precludes a claim that a set of measures, working together, 
impair benefits accruing to a Memb er under the covered agreements. 
4. In that respect, the legal nature  and the substantive content of the individual instruments that 
operate together may well be different.  One of the instruments could, for example, provide an 
interpretation of a legal norm to which it relates.  Such an interpretation could or could not be of a 
mandatory nature (as the Appellate Body has clarified,  in general, the fact that an instrument is not 
mandatory does not prevent it from being the subject of dispute settlement proceedings
3).  If that 
interpretation sheds light on the norm in a way that  gives rise to an inconsistency with a WTO 
provision, a panel would be entirely justified in concluding that the norm and the interpretation, 
considered together , are inconsistent with that provision. 
5. In fact, this was exactly one of the conclusions of the panel in the dispute brought against the 
European Union concerning tariff treatment of info rmation technology products .  In a report that has 
been adopted by the Dispute Settlement Body, that  panel found that CNENs, which are Explanatory 
Notes to the Combined Nomenclatu re of the European Union – interpretive instruments under the EU 
law with no legally-binding force -, operating in conjunction with a Council Regulation of the 
European Union, violated provisions of the GATT 1994.4 
6. Therefore, in Brazil's view, regardless of th e differences among separate instruments, as long 
as a complainant claims that the combined operation of those instruments results in a violation of 
WTO provisions, a panel should not be precluded from  examining that claim and should not instead 
be obliged to separately verify the consistenc y of each instrument with those provisions. 
7. It is true that, under the TBT Agreement, the measures at issue are normally technical 
regulations – documents which lay down charact eristics, methods or provisions with which 
                                                      
1 Letter by the Panel dated 26 November 2010. 
2 United States' opening statement at the second Panel meeting, paras. 12-15. 
3 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review (DS244), para. 89. 
4 See, for instance, EC – IT Products (US)  (DS375), paras. 8.4 and 8.6. WT/DS384/R 
WT/DS386/R Page C-22 
 
 
  compliance is mandatory.  In this regard, Brazil not es however that Article 2.2 of the TBT Agreement 
– one of the provisions at issue in this dispute – sets out that "Members shall ensure that technical 
regulations are not prepared, adopted or applied  with a view to or with  the effect of creating 
unnecessary obstacles to international trade".  In th at context, a document which may not in itself 
constitute a technical regulation could nevertheless be  relevant to an examination under Article 2.2, 
insofar as it is relevant to the application  of the technical regulation itself. 
8. Finally, Brazil wishes to comment briefly on the unsolicited letter received by the Panel.  
Article 13.2 of the DSU provides in part that "Pan els may seek information from any relevant source 
and may consult experts to obtain their opinion on certa in aspects of the matter."  In this regard, Brazil 
respectfully submits – and in fact has been reiterati ng this position for quite a long time now – that the 
right to seek information from any relevant source should not be confused with a right – not provided 
for under the DSU – to consider information not sought  by the Panel. 
9. It is Brazil's view that, in accepting a nd considering unsolicited documents such as amicus 
curiae  briefs, WTO adjudicators may step beyond the rights ascribed to them under the DSU.  They 
may also potentially open participation in WTO dis pute settlement proceedings to any individual or 
institution that is not represented by a Member whic h is a party to the dispute.  Beyond disrupting the 
inter-governmental nature of the WTO dispute settle ment system, this may represent a burden that 
cannot be met equally by all Members.  Indeed , developing Members are likely to be the most 
adversely affected by such decisions, since their more limited resources would have to be used not 
only to address factual and legal claims and arguments  made by other Members in a dispute, but also 
by a potentially large number of other interested pa rties whose participation in proceedings was not 
foreseen in the DSU. 
10. The inclusion of this issue in the DSU Re view discussions is a recognition both of the 
importance Members attach to the matter and that the special session of the DSB is the appropriate forum for its consideration. 
11. In the specific instance of this dispute, Brazil would suggest that the Panel only consider the 
unsolicited letter if it is made part of a submission by one of the parties (as an exhibit, for example).  
Such party would then have to respond for the cont ents of the brief and assume the responsibility of 
making it part of its own case. This is an approach  that would be the least disruptive and would still 
allow for a substantive discussion of the unsolicited contribution. 
12. In closing, Brazil thanks the Panel for the fu rther opportunity to present its views in this 
dispute.WT/DS384/R 
 WT/DS386/R 
Page C-23 
 
 
  ANNEX C-7 
 
THIRD PARTY ORAL STATEMENT OF CHINA 
AT THE SECOND SUBSTANTIVE MEETING 
 
 1. Mr. Chairman, distinguished members of the Panel, China appreciates this opportunity to 
present our opinion before you on this dispute. We refrain ourselves from making statement on the 
merits of the case, and would like to comment briefly on the  issue of amicus curiae  briefs. 
2. Amicus curiae  brief is an old issue. During the Uruguay Round, some relevant proposals were 
raised, negotiated and rejected. Similar proposals were again raised by a few Members during the DSU review, but did not produce any consensus results. In the ongoing DSU negotiations, there are great disagreements among Members on amicus curiae  briefs. Some Members propose to explicitly 
give panels and the Appellate Body the right to accept and consider unsolicited information and 
advice provided that this information or advice is di rectly relevant to the factual and legal issues under 
consideration. On the contrary, some other Memb ers submitted textual proposals that would explicitly 
prohibit panels and the Appellate Body to  consider such information and advice. 
3. In the practice of dispute settlement, the Appe llate Body found itself and the Panel had the 
authority to accept so called  amicus curiae  briefs in some cases . These findings are based on the 
assessment of the facts and cond itions in the specific cases, which would not directly bound the 
Panels in other cases. For all this, members expr essed their strong concerns in the General Council 
special meeting on 22 November 2000. 
4. Article 13 of the DSU provides "each Panel sh all have the right to seek information and 
technical advice from any individual or body whic h it deems appropriate". This provision literally 
gives the Panel authority to seek information and t echnical advice, but does not grant individuals and 
institutions outside the WTO the right to submit brie fs to be considered by the Panel. When it is 
necessary to seek information in a dispute, the Panel could do on its own initiative. If the Panel 
passively accepts amicus curiae  briefs, it would possibly bring about injustice to the other 
organizations who do not submit such  kind of briefs and the Members who are not participants or 
third parties to the dispute, and cause adverse e ffect on the fact finding. The great disagreements 
among Members and the ongoing negotiation also i ndicate that there is no agreement among 
Members on the acceptance of amicus curiae  briefs. 
5. China believes the issue of amicus curiae  briefs has systemic influence in the dispute 
settlement, and should be settled by negotiations among Members. China would like to advise the 
Panel follow its terms of reference and function, interpret the relevant  provisions in DSU according to 
the customary rules of interpretation of  public international law, ignore such amicus curiae  briefs and 
do not take them in to consideration. 
 WT/DS384/R 
WT/DS386/R Page C-24 
 
 
  ANNEX C-8 
 
EXECUTIVE SUMMARY OF THE  
THIRD PARTY WRITTEN SUBMISSION OF COLOMBIA 
 
 
I. INTRODUCTION 
1. Colombia thanks the Panel and the Parties fo r this opportunity to present its views in the 
present proceeding. Colombia interven es in this case given its systemic interest in the application of 
several provisions of the WTO covered ag reements discussed in this dispute. 
2. While not taking a final position on the specific facts of this case, Colombia will provide its 
views on some of the legal claims advanced by the Pa rties to the dispute. First, Colombia will address 
the issue of whether an apparently voluntary meas ure can be deemed mandatory under the definition 
of technical regulation provided for in Annex 1. 1 of the Agreement on Technical Barriers to Trade 
(the "TBT Agreement"). Then, Colomb ia will comment on the definition of treatment no less 
favourable  in Articles 2.1 of the TBT Agreement and III:4 of the GATT. As a third issue, Colombia 
will present its comments on the definition of the term legitimate objective,  within the relevant 
provisions of the WTO covered ag reements. Another issue that will be addressed by Colombia is 
related to the scope of the Members obligations with  respect to special and differential treatment to 
developing countries, under Article  12 of the TBT Agreement. Finally, Colombia will close its 
submission with some comments on the conditions that must be met for a claim under 
Article XXIII:1(b) of the GATT. In virtue of the fo regoing, this document is divided in five sections 
where each of the mentioned issues will be addressed.  
II. THE MANDATORY CHARACTER OF TECHNICAL REGULATIONS 
3. One of the complaining parties' claims is that  the country of origin labelling measures (the 
"COOL measures")
1, are technical regulations subject to the TBT Agreement. In response, the United 
States of America (the "USA") claimed that Secretary Vilsack's letter is not a measure whose compliance is mandatory , in the terms of Annex 1.1 of the TBT Agreement
2. 
4. Under the definition of a technical regul ation as provided in Annex 1.1 of the 
TBT Agreement, one of the elements of a technica l regulation is that its compliance is mandatory. 
Regarding the interpretation of Annex 1.1 of the TBT Agreement, only one WTO Panel has directly 
addressed the issue of how the term mandatory3 should be construed. That  Panel concluded that a 
measure can be deemed mandatory when it is  obligatory  as a consequence of a command.4 
5. Given the limited amount of cases that have dealt with the interpretation of " with which 
compliance is mandatory " under the definition of Annex 1.1 of the TBT Agreement, Colombia 
submits to the Panel the question of whether it woul d be appropriate to analyze a measure's mandatory 
character in order to determine if it is a technical regulation, pursuant to the standard of application 
under Article XI:1 of the GATT. Hence, the Panel c ould take this opportunity to clarify if in any 
                                                      
1 In Mexico's first written submission, para. 9, Mexico lists the measures that it considers are part of the 
COOL measures; and in Canada's first written submission, para. 1 footnote 1, Canada lists the measures that it 
considers are part of the COOL meas ures. Both claiming parties agree that  the letter that the Secretary of 
Agriculture of the United States of America, Thomas J. Vilsack, sent to the representatives of the industry on 
February 20 2009, is part of the COOL measures. 
2 United States' first written submission, paras. 133-137. 
3 The case was EC – Trademarks and Geographical Indications (Australia) . 
4 EC – Trademarks and Geographical Indications (Australia) , para. 7.453. WT/DS384/R 
 WT/DS386/R 
Page C-25 
 
 
  given circumstances, the standard set forth in the GATT case Japan – Semi-conductors5 in relation to 
a measure's mandatory nature pursuant to Article XI:1  of the GATT, would be useful to construe the 
term " with which compliance is mandatory " in Annex 1.1 of the TBT Agreement. In consequence, the 
Panel should conclude if Secretary Vilsack's lette r is mandatory and thus a technical regulation. 
III. LESS FAVOURABLE TREATMENT UNDER ARTICLES 2.1 OF THE 
TBT AGREEMENT AND III:4 OF THE GATT 1994 
6. The claimants allege that the COOL measures implemented by the USA are inconsistent with 
Article 2.1 of the TBT Agreement, since such measures accord a less favourable treatment to the 
feeder cattle from Canada and Mexico and the hog from Canada than that provided to the like 
products from the USA.6 In response, the USA claims that th e COOL measures provide an identical 
treatment both to the feeder cattle and hogs from Cana da and Mexico than the one provided to the like 
products from the USA, given that the measures at  issue require the same labelling conditions for 
national and foreign products.7 In this case, the USA holds that the COOL measures do not affect the 
conditions of competition for the sale of these products, as well as the fact that such measures have no 
direct adverse effect over trade. Therefore, the USA argues that the COOL measures are consistent 
with Article 2.1 of the TBT Agreement.  
7. Article 2.1 of the TBT Agreement, provides that technical regulations shall not accord 
treatment less favourable to imported products than  the one accorded to like imported products. Some 
panels8 have analyzed the above mentioned provision, and have concluded that Article 2.1 of the 
TBT Agreement should be interpreted in light of the principles set forth in Article III:4 of the 
GATT 1994, given that the obligation not to accord a treatment less favourable  has been understood 
in the same sense in both provisions. Following what has been said by prior panels9, Colombia recalls 
that for there to be a breach of the national treatme nt obligation, the following aspects of the measure 
at issue should be assessed: i) if it is a technical regulation; i) if it accords any differential treatment to the domestic products with respect to the imported ones; iii) if the domestic products are like to the 
imported ones; and iv) the effects that the differe ntial treatment have over the competitive conditions 
between domestic and imported products.  
8. Based on the foregoing, Colombia requests the Panel to determine whether the challenged 
measures imply a less favourable treatment to im ported products in the USA market; and to what 
extent, this means a modification of the comp etition conditions betwee n domestic and imported 
products, in such a manner that suffices the st andard under which Articles III:4 of the GATT 1994 
and 2.1 of the TBT Agreement could be breached. 
                                                      
5 GATT Panel Report in the case Japan – Semi-Conductors , para. 109. 
6 Mexico's first written submission, paras. 268 – 269 y 217 – 232 (with respect to Article III:4 of the 
GATT) and Canada's first written submission, paras. 86-154. 
7 United States' first written submission, paras. 138-200. 
8 EC – Trademarks and Geographical Indications (Australia) , para. 7.464; EC-Sardines , para. 5.27; 
and EC – Asbestos , para. 3.410. 
9 EC – Trademarks and Geographical Indications (Australia) , para. 7.444. A similar analysis was 
undertaken in the following cases with re spect to Article III:4 of the GATT 1994: EC – Asbestos , para. 3.410; 
Canada – Autos,  para. 6.231; US – Gasoline , para. 6.5. Appellate Body Report in the case of Korea – Various 
Measures on Beef , para. 133. WT/DS384/R 
WT/DS386/R Page C-26 
 
 
  IV. LEGITIMATE OBJECTIVES UNDER THE WTO COVERED AGREEMENTS 
9. Canada and Mexico claim that the COOL me asures do not fulfil a legitimate objective under 
article 2.2 of the TBT Agreement, since thei r purpose is not to pursue such an objective
10. The USA 
claims that providing information to cons umers is in itself a legitimate objective.11 
10. According to Article 2.2 of the TBT Agreement,  for there to be a breach of the Member's 
obligations under such provision, it is necessary to analyze if the measure at issue is a technical 
regulation adopted to fulfil a legitimate objective,  and whether it has been implemented in a manner 
that does not create unnecessary obstacles to trade. Th is kind of reasoning should be carried out in 
light of the necessary measures to fulfil the le gitimate objective under Article 2.2 of the 
TBT Agreement.  
11. Colombia considers that in order to dete rmine what is a legitimate objective under the 
definition of Article 2.2 of the TBT Agreement, th e Panel should take into account the relevant panel 
and Appellate Body reports12 and other WTO provisions13, relative to the protection of Member's 
central societal values. 
V. MEMBERS' OBLIGATIONS TO PROV IDE SPECIAL AND DIFFERENTIAL 
TREATMENT, ACCORDING TO ARTI CLE 12 OF THE TBT AGREEMENT 
12. Mexico submits14 that the COOL measures are contrary  to the obligations of the USA under 
Articles 12.1 and 12.3 of the TBT Agreement, si nce it did not take due account of its special 
development, financial and trade needs as a de veloping country. In response the USA submits15 that 
Mexico did not satisfy the test of inconsiste ncy arising from Articles 12.1 and 12.3 of the 
TBT Agreement. 
13. Colombia considers that Article 12.1 of the TBT Agreement implies an obligation as such,16 
and that Article 12.3 of the TBT Agreement should be read in light of the provisions of Article 12.2 of 
the TBT Agreement.17 In addition, it seems clear to Colomb ia that Article 12.2 places the burden of 
proof on the Members that are developed countries. Therefore, the satisfaction of the burden of proof 
is not up to the developing country that is alle ging the breach of a (developed country) Member's 
obligations under Article 12. Instead, it is the de veloped country Member that has placed a potential 
technical barrier to trade, the one who has to meet  the burden of proving whether it has complied with 
its obligations under Article 12 of the TBT Agreem ent, in particular, regarding its duties of taking into 
account the special development, financial and trade needs of the developing countries.  
14. Hence, the developed country implementing the measure: i) should prove that it took into 
account the special development, financial and trad e needs of a developing country partner, when 
                                                      
10 Mexico's first written submission, paras. 276-302 and Canada's first written submission, 
paras. 158-176. 
11 United States' first written submission, paras. 226-233. 
12 Panel Report in EC – Sardines , para. 7.118, this position was confirmed by the Appellate Body in its 
report on the same case EC – Sardines  (Appellate Body Report), para. 286; Panel Report in EC – Sardines , 
paras. 7.120 and 7.121. 
13 Articles XX of the GATT 1994, XIV of the GATS, 17 and 30 of the TRIPS Agreement. Also see: 
Panel Report in Canada – Pharmaceutical Patents , para. 7.69 and Panel Report in EC – Trademarks and 
Geographical Indications (Australia) , paras. 7.662 and 7.663. 
14 Mexico's first written submission, paras. 359-373. 
15 United States' first written submission, paras. 271-277. 
16 EC – Approval and Marketing of Biotech Products , para. 74.7 sub 75. 
17 Panel Report, EC – Approval and Marketing of Biotech Products,  para. 74.7 sub 77. WT/DS384/R 
 WT/DS386/R 
Page C-27 
 
 
  adopting a measure with the potential of affecting bila teral trade; and ii) is obliged to prove its due 
diligence with respect to special  an differential treatment, when adopting technical regulations, 
standards and conformity procedures.  
15. In view of the foregoing comments, Colombia  kindly requests the Panel to complete the 
standard set forth by other panels, regarding the extent of the members' special and differential 
treatment obligations, in accordance to  Article 12 of the TBT Agreement.  
VI. CLAIMS UNDER ARTICLE XXIII:1(B) OF THE GATT 1994 
16. The claiming parties hold that the COOL measures nullify and impair the advantages derived 
from the tariff concessions granted by the USA to them on feeder cattle and hogs, as a result of the 
negotiations of the Uruguay Round18. Thus, the measures at issue are inconsistent with 
Article XXIII:1(b) of the GATT 1994. Based on the report of the Appellate Body in the case EC – 
Asbestos , the USA holds that recourse to Article XXIII:1(b) of the GATT should be done in a 
cautious and exceptional manner.19 Moreover, the USA focuses its assess ment in the lack of evidence 
presented by the claiming parties in relation to thei r claim of nullification and impairment pursuant to 
Article XXIII:1(b) of GATT 1994.20 
17. There have been few claims under Article XXIII:1(b), both under the GATT 1947 as under 
the WTO. Only eight cases were considered by  working groups as well as panels under GATT 1947.21 
In two of those cases, the panels found that the n on-violation complaint was justified, but the report 
was not adopted. 22 In three cases, the non-violation complaints were rejected.23 Only in three cases 
the non-violation complaints were accepted and adopted. 24 Since the establishment of the WTO, only 
four cases have dealt with non violation claims. 25 These cases have identified some requirements for 
claims under Article XXIII:1(b) of the GATT 1994: non-violation complaints must be exceptional26, 
there has to be an application of a measure by a Member,27 there must be a benefit accruing under the 
relevant agreement,28 and there must be a nullification or impa irment of that benefit as a result of the 
application of the measure at issue29. 
18. In order to undertake a complete assessment of the claims advanced by the complaining 
parties and the responding party reply, the Panel in this case should examine the de iure and de facto  
evidence presented by the Parties wi th respect to the COOL measures in light of the elements of 
nullification or impairment without violation c onstrued from the different cases under the GATT and 
the WTO. 
                                                      
18 Mexico's first written submission, para. 379 and Ca nada's first written submission, paras. 234-235. 
19 Appellate Body Report EC – Asbestos , para. 186. 
20 United States' first written submission, paras. 305-316. 
21 Australia – Subsidy on Ammonium Sulphate ; Germany – Sardines ;  Uruguayan Recourse ; EEC – 
Citrus Products; EEC – Canned Fruit; Japan – Semi-Conductors; EEC – Oilseeds I; and US – Sugar Waiver . 
22 EEC – Citrus Products  and EEC – Canned Fruit . 
23 Uruguayan Recourse ; Japan – Semi-Conductors ; and United States – Sugar Waiver . 
24 Australia – Subsidy on Ammonium Sulphate ; Germany – Sardines; and EEC – Oilseeds I.  
25 Japan – Film ; EC – Computer Equipment ; Korea – Procurement ; and EC – Asbestos . 
26 Japan – Film,  para. 10.36. 
27 Japan – Film, para. 10.43. 
28 Japan – Film,  paras. 10.61, 10.71-10.74, 10 .77, and 10.79-10.81.  
29 Japan – Film , paras. 10.41 and 10.83. WT/DS384/R 
WT/DS386/R Page C-28 
 
 
  VII. CONCLUSION 
19. Colombia considers that this case raises impor tant questions on the interpretation of Articles 
III:4 of the GATT 1994, various provisions of the TBT Agreement as well as Article XXIII:1(b) of the GATT 1994. While not taking a final position on th e merits of the case, Colombia requests this 
Panel to carefully review the scope of the claims in  light of the observations made in its submission. 
Colombia reserves its right to make further comment s at the third party session of the first substantive 
meeting with the Panel. WT/DS384/R 
 WT/DS386/R 
Page C-29 
 
 
  ANNEX C-9 
 
THIRD PARTY ORAL STATEMENT OF COLOMBIA 
AT THE FIRST SUBSTANTIVE MEETING 
 
 
I. INTRODUCTION 
1. Mr. Chairman, distinguished Members of the Panel, on behalf of the Government of 
Colombia, I thank you for giving us the opport unity to express our views in this dispute. 
2. Our participation as a third party is based on our systemic interest in the proper interpretation 
of several provisions of the WTO covered agreem ents, discussed in this case. In its written 
submission, Colombia set out its understanding of some of the major legal issues arising from this 
dispute. I will therefore not repeat all the conten t of the submission, but will rather focus on a few 
specific comments regarding the interpretation of th e obligations of special and differential treatment 
under Article 12 of the TBT Agreement and the necessity  requirement under Article 2.2 of the 
TBT Agreement.      
3. Colombia recognizes that many of the issues in this dispute are factual in nature. In that 
regard, Colombia would like to emphasize that it does not take a position as to whether the USA has 
or has not complied with its obligations under the TBT Agreement. 
II. SPECIAL AND DIFFERENTIAL TREATM ENT TO DEVELOPING COUNTRIES 
4. Mexico submits that the COOL measures are c ontrary to the obligations of the USA under 
Articles 12.1 and 12.3 of the TBT Agreement, since th e latter did not take due account of the former's 
special development, financial and trade needs as a developing country. In response, the USA submits 
that Mexico did not satisfy the test of incons istency arising from Articles 12.1 and 12.3 of the 
TBT Agreement. 
5. Following the reasoning of the Panel in EC – Approval and Marketing of Biotech Products1, 
Colombia considers that Article 12.1 of the TBT Agreement implies, in itself, the obligation to 
provide developing country Memb ers differential and more favourable treatment with respect to 
measures subject to the TBT Agreement.   
6. In addition, Colombia considers that Article 12.3 of the TBT Agreement should be read in 
light of the provisions of Article 12.2 of the TBT Agreement.2 Therefore, it seems clear to Colombia 
that Article 12.2 places the burden of proof, with resp ect to the obligation to take due account of the 
special development, financial and trade needs of developing country Members, on the developed 
country Member imposing the potential technical regulation.  
7. Hence, the developed country implementing the measure: i) should prove that it took into 
account the special development, financial and trad e needs of a developing country partner, when 
adopting a measure potentially affecting bilateral tr ade; and ii) is obliged to prove its due diligence 
with respect to special and differential treatment  to developing country Members, when adopting 
technical regulations, standards and conformity procedures.  
                                                      
1 Panel Report, EC – Approval and Marketing of Biotech Products , para. 74.7 sub 75. 
2 Panel Report, EC – Approval and Marketing of Biotech Products,  para. 74.7 sub 77. WT/DS384/R 
WT/DS386/R Page C-30 
 
 
  8. In view of the foregoing comments, Colombia  kindly requests the Panel to complete the 
standard set forth by other panels, regarding the extent of the Members' special and differential 
treatment obligations, in accordance wi th Article 12 of the TBT Agreement. 
III. NECESSITY TEST UNDER ARTICLE 2.2 OF THE TBT AGREEMENT 
9. Canada and Mexico claim that the COOL measu res do not pursue a legitimate objective, but 
in case they were considered to do so, such measures are more trade restrictive than necessary to fulfil 
the legitimate objective, taking account the risk non-fulfilment would create. The USA responds by 
arguing that the COOL measures are not more trade restrictive than necessary under Article 2.2 of the 
TBT Agreement.  
10. The debate regarding the necessity  of a measure, in light of its trade restrictiveness and the 
risk of non-fulfilment has not been directly dealt with in WTO disputes. In Colombia's view, this 
represents an opportunity for this Panel to contribute to the analysis of the standard that must be 
followed under Articles 2.2 and 12.3 of the TBT Agreemen t, in order to conclude  if a measure is more 
trade restrictive than necessary to fulfil the legitimate objective pursued  in light of the risks of non-
fulfilment. 
11. Colombia submits that Article 2.2 of the TBT Agreement entails a necessity  test of the 
measure according to its trade restrictiveness, which should be weighed with respect to the risk that 
non-fulfilment would create. Hence, for there to find a breach of Article 2.2, the Panel should 
determine that the measure at issue is more trade restrictive than necessary,  and that not complying 
with such a measure does not pose a risk to the pr otection of the legitimate objective pursued. This 
also requires the demonstration that the objectiv e pursued by the measure is a legitimate one.  
12. In Colombia's view, the necessity test under the TBT provisions mentioned above should be 
construed taking into account the  necessity test used by several Panels and the Appellate Body in 
cases involving the application of Articles XX:(b) and XX:(d) of the GATT 1994. Additionally, Colombia calls the attention of the Panel to the crucial role of a necessity  test in weighing the trade 
restrictiveness of a measure and the policy goals  pursued by Members' through their national 
regulations. Thus, Colombia considers that this type of test can provide transparent and clear 
elements, for the compatibility analysis of natio nal measures with various provisions of the WTO 
covered agreements. For example, SPS Agreement Article 5.6 and GATS Article VI.4 both provide 
for necessity tests. However, only the former has been analyzed by WTO panels and the Appellate 
Body.  
13. As established by the Appellate Body in th e case of EC- Asbestos, a measure would be 
deemed necessary under Article XX(b) of the GATT 1994, if there are no more GATT consistent 
reasonable alternatives available for the Member  implementing the measure. The Appellate Body 
followed this same line of thought when applying  Article XX(d) of the GATT in the case of Korea – 
Various Measures on Beef.  
14. Colombia respectfully requests the Panel to c onstrue a clear necessity test for the proper 
application of Articles 2.2 and 12.3 of the TBT Agreement by the Members. 
15. The Panel could take the aforementioned analysis as a reference to determine when a measure 
is more trade restrictive than necessary. In that sense, and as proposed by the complaining parties, the 
Panel could use as an element of the necessity t est under Article 2.2 of the TBT Agreement the 
reasonably available alternatives approach.  WT/DS384/R 
 WT/DS386/R 
Page C-31 
 
 
  16. On the other hand, Colombia also invites the Pa nel to clarify the sense in which the risks of 
non-fulfilment should be weighed with respect to  the trade restrictiveness of the measure.  
17. This is of great relevance, since notwithsta nding the pre-eminent protection of the Members' 
right to exercise their sovereignty over their te rritory; Members are also called to respect their 
international obligations under the covered agreements. This balance is usually clear, but there are 
cases like the ones referred to above in which the di spute settlement system can achieve its objective 
pursuant to the DSU to provide security and pred ictability to the multilateral trading system.   
18. Mr. Chairman, distinguished Members of the Pa nel, with these comments, Colombia expects 
to contribute to the legal debate of the parties in this case, and would like to express again its 
appreciation for this opportunity to share its points of view on this relevant  debate, regarding the 
application of Articles 12.1, 12.3 and 2.2 of th e TBT Agreement. We thank you for your kind 
attention and remain at your disposal for any question you may have, including as requested on Colombia's mandatory country of origin labelling provisions. WT/DS384/R 
WT/DS386/R Page C-32 
 
 
  ANNEX C-10 
 
THIRD PARTY ORAL STATEMENT OF COLOMBIA 
AT THE SECOND SUBSTANTIVE MEETING 
 
 1. Mr. Chairman, distinguished Members of the Panel, on behalf of the Government of 
Colombia, I thank you for giving us the opport unity to express our views in this dispute. 
2. This case has raised a legal debate on the conf ormity of country of origin labelling (the 
"COOL") requirements with the Agreement on Techni cal Barriers to Trade (the "TBT Agreement") 
and the WTO covered agreements in general.  
3. It is Colombia's view that COOL requirement s are not, as such, contrary to WTO Members' 
obligations under the covered agreem ents. Rather, Colombia invites th e Panel to consider that the 
conformity assessment of the COOL measures adopted by  the United States has to be done in light of 
the particular circumstances of the present dispute. 
4. As has been mentioned by Colombia both in its  written submission and its oral statement in 
the first session, this case is an opportunity for th e Panel to clarify several issues related to the 
TBT Agreement.  
5. In particular, Colombia recalls the importance of this case for the following issues: defining 
how to construe if a measure is mandatory for the purposes of the definition of a technical regulation; 
the way in which a measure applied to a pro cessed good (i.e. beef) can render a treatment less 
favourable to the conditions of sale of a non-processe d good (i.e. cattle); the definition of a legitimate 
objective under Article 2.2 of the TBT Agreement; the application of a necessity test under Article 2.2 
of the TBT Agreement; the scope of application of th e obligations of special and differential treatment 
under Article 12 of the TBT Agreement; and the conditi ons for claims of nullification and impairment 
under Article XXIII:1(b) of the GATT 1994.   
6. In addition, Colombia would like to make a br ief comment on the issue of the acceptance of 
certain amicus curiae writing. In line with what has been sai d by several panel and Appellate Body 
reports, Colombia considers that it is a decision of  the Panel to accept or not such writing. However, 
when taking such decision, the Panel must ensure that the right of de fence, in the context of the due 
process, is not impaired in any way through the Panel's decision on the matter.  
7. Mr. Chairman, distinguished Members of the Pane l, Colombia expects that the report of the 
Panel in this case will contribute to the security an d predictability of the multilateral trading system, 
by clarifying the legal issues involved in the present dispute. We will be pleased to answer any 
questions from the Panel. WT/DS384/R 
 WT/DS386/R 
Page C-33 
 
 
  ANNEX C-11 
 
EXECUTIVE SUMMARY OF THE  
THIRD PARTY WRITTEN SUBMISSION OF THE EUROPEAN UNION 
 
 
I. THE MEASURE OR MEASURES AT ISSUE 
1. Pending a response from Canada and Mexico with respect to these US arguments, the 
European Union observes that a complaining Memb er has a certain discretion when it comes to 
identifying what it considers to be the "measure at  issue". In particular, faced with more than one 
document, a complaining Member may identify each doc ument as a measure at issue; or may identify 
the documents together as a measure at issue; or  may argue that the documents are evidence of an 
unwritten measure. This discretion, like any discreti on, is not entirely unfettered, although precisely 
why Canada and/or Mexico might have exceeded the bounds of their discretion in this case is not yet 
entirely clear to the European Union. 
2. Insofar as the 2008 Interim Final Rule has not b een in force since 16 March 2009, that is, 
prior to the panel requests on 7 and 9 October 2009 , then the European Union would not normally 
expect it to constitute a measure at issue, or pa rt of a measure at issue. However, it might still 
constitute evidence of facts that the complaining Members might consider relevant to their cases. 
II. ANNEX 1, PARAGRAPH 1 OF THE TBT AGREEMENT: DEFINITION OF 
"TECHNICAL REGULATION" 
3. Referring to past cases, the European Union conc ludes that, whilst the Appellate Body has not 
been called upon to deal with a case con cerning origin labelling, the panel in EC – Trademarks and 
Geographical Indications  was confronted with such an issue. Fu rthermore, with respect to this issue, 
the approach of the panel in EC – Trademarks and Geographical Indications  was consistent with the 
approach of the Appellate Body in the Asbestos  and Sardines  cases when it comes to interpreting and 
applying Annex 1, paragraph 1 of the TBT Agreem ent. That approach in volves interpreting the 
second sentence of Annex 1, paragraph 1 as setting out examples, and reasoning that if one example is 
present then the document is a technical regulation. The particular example in this case is "labelling 
requirements". Thus, the reasoning is that if a document includes "labelling requirements" (and the 
other requirements of Annex 1, paragraph 1 are met), then the document is a technical regulation. The 
further reasoning is that the second sentence of Annex 1, paragraph 1 does not limit the term 
"labelling requirements" by reference to the substantiv e content of the label. It requires only that the 
"labelling requirements" "apply" to a "produc t, process or production method". Consequently, 
according to this line of reasoning, there is no need to consider whether or not "origin" is a "product 
characteristic" within the meaning of the first sen tence of Annex 1, paragraph 1. If there is a 
requirement that the product bear a label stating th e origin of the product, then the measure is a 
technical regulation. The European Union would concl ude that if this Panel follows the approach of 
the panel in EC – Trademarks and Geographical Indications  (specifically with respect to origin 
labelling) and the approach of the Appellate Body in the Asbestos  and Sardines  cases then it would 
conclude that the measure is a technical regulation. That being said, the specific issue raised in this 
case has not previously been directly considered , and the European Union reserves its further 
observations pending additional cl arifications from the Parties. 
4. One might also observe that perhaps the question of whether or not the measure is a technical 
regulation within the meaning of the TBT Agreem ent may not be critical to the outcome of the 
assessment, at least in this particular case. One mi ght think that whether one conducts the assessment 
through the prism of Article III:4 (especially when d ealing with an in fact claim as in the present case) WT/DS384/R 
WT/DS386/R Page C-34 
 
 
  and the general exceptions in Article XX of the GATT 1994; or the through the prism of Articles 2.1 
and 2.2 of the TBT Agreement, the outcome  should be broadly similar or the same. 
5. With respect to the Vilsack Letter and the s ubsequent press statement, the European Union 
observes that the assessment may be different depending upon whether one assesses those documents 
in isolation, or whether one assesses them togeth er with other documents  cited by Canada and 
Mexico. For example, it is possible that documents  are not in themselves mandatory, but nevertheless 
might be relevant for a domestic court's interpre tation and application of other measures that are 
mandatory. In the latter case, it would not necessarily be correct to conclude that the non-mandatory 
documents would be irrelevant to a panel's assess ment under the TBT Agreement.  Since this is to 
some extent a question of the domestic law of th e United States, the European Union reserves its 
further comments pending additional clarifications from the Parties. 
III. ARTICLE 2.1 OF THE TBT AGREEMENT: TREATMENT NO LESS 
FAVOURABLE TO LIKE PRODUC TS OF NATIONAL ORIGIN 
A. L
IKE PRODUCTS  
6. The European Union agrees with Canada and Me xico that in interpreting and applying the 
term "like products" in Article 2.1 of the TBT Agreemen t it is appropriate to have regard to the way in 
which the term "like products" in Article III:4 of the GATT 1994 has been interpreted and applied. 
The treaty terms are obviously the same. Furthermore, the GATT 1994 and the TBT Agreement are each context for the interpretation of the other.  Finally, the second recital of the TBT Agreement 
refers to the desire to further the objectives of the GATT 1994, so the object and purpose of the 
TBT Agreement would appear to be co-extensive with  or at least limited by the object and purpose of 
the GATT 1994. 
B. T
REATMENT NO LESS FAVOURABLE  
7. For the reasons indicated above, the European Un ion agrees with Canada and Mexico that in 
interpreting and applying the term "no less favourab le" in Article 2.1 of the TBT Agreement it is 
appropriate to have regard to the way in which the same term in Article III:4 of the GATT 1994 has 
been interpreted and applied. 
8. Canada and Mexico would appear  to acknowledge that the measure does not explicitly require 
less favourable treatment for imports. Nevertheless, Canada and Mexico argue that the measure has 
that effect. In other words, Canada's and Mexico's case is not an "in law" case but rather an "in fact" 
case. The difference between an in law case and an in  fact case is not the standard, but the evidence. 
In an in law case the evidence is th e text of the measure itself. In an in fact case the text of the 
measure is not adduced or does not expressly provi de for less favourable treatment. However, other 
evidence is adduced to support factual assertions, a nd the complaining Member explains how such 
facts and other evidence, working together in r easoned and logical ways, demonstrates the existence 
and precise content of a measure inconsistent with th e relevant standard. This is a high threshold and a 
difficult task, requiring the exercise of particular rigour, and not a result to be lightly assumed.   
9. That a measure may have an adverse effect on tr ade is not in itself enough to establish that it 
is WTO inconsistent. All regulator y measures by definition at least potentially affect different firms 
differently, even if they produce like products, both within the regulating Member and as between the 
regulating Member and other Members. Neither the GATT 1994 nor the TBT Agreement set out to 
eliminate regulatory diversity in itself. Just b ecause a new regulation disrupts existing trade flows or 
structures does not necessarily mean that ther e is less favourable treatment of imports. WT/DS384/R 
 WT/DS386/R 
Page C-35 
 
 
  10. In this context, notions of intent need to be  approached with caution. The contested measure 
may have an object and purpose either expressly stat ed or objectively apparent from its overall design 
and architecture, and that may be relevant to unde rstanding how the measure is to be interpreted and 
applied in particular cases, which may in turn be re levant to understanding whether or not there is less 
favourable treatment. However, the assessment ca nnot usefully focus on the subjectively deemed 
"intent" of unspecified persons connected in some way with the adoption or application of the measure. 
11. In such an assessment an adjudicator will re ference the framework of Article III:4 of the 
GATT 1994 and any relevant provisions of Article XX of the GATT 1994. Similarly, an adjudicator 
may reference both Article 2.1 of the TBT Agreemen t (which Canada and Mexico would appear to 
agree echoes Article III:4 of the GATT 1994) and Ar ticle 2.2 of the TBT Agreement (which Canada 
and Mexico would appear to agree echoes Article  XX of the GATT 1994) – although the European 
Union is not suggesting that the relationships be tween these different provisions are necessarily the 
same. 
12. Turning to the substantive point of dispute,  without prejudice to the development of our 
position concerning the interpretation of the definitio n of "technical regulation", and recognizing that 
these observations may relate to some extent to bot h Article 2.1 and 2.2 of the TBT Agreement, the 
European Union considers that the provision of info rmation to consumers about origin may, in itself, 
generally be a legitimate objective within the mean ing of Article 2.2 of the TBT Agreement. In 
particular, mandatory origin rules and declarations  (as distinct from labelling) may be required to 
ensure that the correct customs duties are applied, including in order to permit distinctions between 
goods subject to different tariffs. The European Union recognizes that origin labelling  might also 
facilitate choices by consumers. De pending upon one's perspective, one  might consider some of these 
choices to be rational and in harmony with the WTO agreements, or one might consider some of these 
choices to be irrational or economically inefficien t. For example, choices might reflect actual or 
perceived risk associated with food from a partic ular region or Member; or actual or perceived 
positive qualities of food from a particular region or  Member; or ethical considerations about a 
particular region or Member; or a desire to foster  sustainable development in a particular region or 
Member; or a desire to economically support a regi onal or domestic industry; or considerations of 
taste and personal judgment. One cannot hope to have  perfect information about why such choices are 
made – that is the whole point of the label – it empowers the consumer. 
13. The European Union might have an issue with  measures adopted by a Member that would 
initiate, encourage or amplify such choices in a manne r that would be inconsistent with the covered 
agreements. However, the European Union does not c onsider that the covered agreements set out to 
preclude origin labelling in itself, nor the making of such choices by consumers, nor that they could 
hope to do so effectively in the long term. If it is tr ue that one of the basic objectives of the WTO is to 
facilitate the operation of market forces in the gl obal economy, it is equally true that consumers are 
the market, it being up to firms to persuade cons umers to prefer their products. One could hardly 
imagine firms  being precluded from identifying products as th eir own. From this perspective, origin 
labelling may not be obstructing market forces, but facilitating their operation. 
14. The essential difference between voluntary and ma ndatory labelling is that an individual 
consumer in a supermarket is hardly in a positi on to demand labelling with respect to particular 
information. They are only able to do that through organisation, notably through their domestic 
political processes. Thus, if a domestic political proc ess leads to mandatory origin labelling, that may 
reasonably be taken as an indication that consumers wa nt it, so that they are in a position to make the 
kinds of choices outlined above. WT/DS384/R 
WT/DS386/R Page C-36 
 
 
  15. With these observations in mind, the European Union has not yet fully understood, based on 
Canada's and Mexico's First Written Submissions, how the facts and evidence are said to work 
together in specific and logical ways in order to demonstrate less favourable treatment. As indicated 
above, the European Union considers that origin la belling may be generally legitimate. The European 
Union also considers that in some cases, and par ticularly where relevant economic activity straddles 
borders, rules may be necessary to determine the orig in of a product – and the Agreement on Rules of 
Origin sets out WTO rules that relate to that ma tter. The European Union has not yet understood why 
it might be that a rule of origin based on sp ecific production points would necessarily be WTO 
inconsistent. Nor has the European Union understood why it might be that, if such rules of origin 
would be WTO consistent, requiring labelling on  that same basis would necessarily be WTO 
inconsistent. This being so, the European Uni on has not yet understood why the less restrictive 
labelling rules in the measure are necessarily WTO inconsistent. 
16. Similarly, the European Union has not yet understood, for example, the following matters: 
why the rules preclude the existence or the coming into existence of slaughter houses that deal only 
with cattle and hogs born in Canada or Mexico but ra ised and slaughtered in the United States; why, if 
the rules disfavour mixed activities, they necessarily tip slaughterhouses back to pure US meat based 
activity and never to pure Canadian or Mexican meat  based activity; and why it is impossible to pass 
any of the additional costs to US meat producers or US consumers. With respect to Canada's tables 
showing US imports as a proportion of domestic pr oduction, the European Union would have been 
interested to see those numbers placed in the cont ext of all imported US products, in order to see 
whether or not the products subject to the measure ar e all grouped at the top of such a list. Finally, the 
European Union has not yet understood how, if the Pa nel were to agree with Canada and Mexico, one 
could avoid the conclusion that all mandatory orig in labelling would be WTO inconsistent, or how 
one could objectively distinguish, with security and predictability, between those measures that would 
be WTO consistent and those th at would be WTO inconsistent. 
IV. ARTICLE 2.2 OF THE TBT AGREEMENT: UNNECESSARY OBSTACLES TO 
INTERNATIONAL TRADE – NOT MORE TRADE RESTRICTIVE THAN NECESSARY 
17. The European Union does not agree with Canada that merely demonstrating that the objective 
of a technical regulation is not "legitimate" is suffi cient to support a finding of inconsistency with 
Article 2.2 of the TBT Agreement. For example, if su ch a regulation would not be restrictive of trade, 
then it would not be inconsiste nt with Article 2.2 – although this example may be relatively 
hypothetical. Similarly, the European Union does no t agree with Canada that merely demonstrating 
that a technical regulation fails to fulfil its objectiv e is sufficient to support a finding of inconsistency 
with Article 2.2 of the TBT Agreement. The Europ ean Union would invite the Panel to interpret and 
apply the treaty text in Article 2.2 directly, rather  than paraphrasing it in the terms set out by Canada. 
18. The European Union observes that the second sen tence of Article 2.2 of the TBT Agreement 
begins with the phrase "For this purpose". The Eur opean Union understands the "purpose" referred to 
here to be the purpose indicated in the first senten ce of Article 2.2. That purpose is to ensure that 
technical regulations are not prepared, adopted or app lied with a view to or w ith the effect of creating 
unnecessary obstacles to international trade. The Eur opean Union therefore sees a connection between 
the first and second sentences. Thus, the European Un ion considers that the focus of the assessment 
should be on whether or not the technical regulati on is more restrictive than necessary to fulfil the 
legitimate objective, taking into account the risk th at non-fulfilment would create. This confirms the 
view that merely demonstrating that the objective of  the measure is protectionism is not sufficient to 
establish an inconsistency with Ar ticle 2.2 of the TBT Agreement. WT/DS384/R 
 WT/DS386/R 
Page C-37 
 
 
  19. With respect to Canada's argument that the me asure does not fulfil its purported objective, the 
European Union has not yet understood how the ex istence of some approximate elements in the 
measure would necessarily support a finding of inconsis tency. With respect to voluntary labelling, the 
European Union has not yet understood how US consumers would pay for such costs, in light of 
Canada's explanations that in practice no such cost s would be born by US meat. Finally, with respect 
to "substantial transformation", the European Union has not yet understood to what extent Canada and 
Mexico are advocating for a change in origin rules,  as opposed to a change in labelling requirements. 
V. ARTICLE 2.4 OF THE TBT AGREEMENT: FAILURE TO BASE THE MEASURE 
ON AN INTERNATIONAL STANDARD (MEXICO ONLY) 
20. The European Union has not yet understood to what  extent Mexico is advocating for a change 
in origin rules, as opposed to a change in labelli ng requirements. Aside from that, the European Union 
has not yet understood how labelling processed meat as of US origin would inform consumers about 
the origin of the animal from which such meat was obtained. 
VI. ARTICLE III:4 OF THE GATT 1994: LE SS FAVOURABLE TREATMENT THAN 
LIKE PRODUCTS OF NATIONAL ORIGIN 
21. The observations of the European Union with r espect to Article III:4 of the GATT 1994 are in 
essence an analogue of its prior observations. WT/DS384/R 
WT/DS386/R Page C-38 
 
 
  ANNEX C-12 
 
EXECUTIVE SUMMARY OF THE THIRD PARTY ORAL STATEMENT 
OF THE EUROPEAN UNION AT THE FIRST SUBSTANTIVE MEETING 
 
 
I. THE VILSACK LETTER 
1. One point on which we would like to comment  further is the Vilsack Letter, which has 
attracted a certain amount of interest from the Third Parties. There seems to be a reasonable consensus 
that this is a measure for the purposes of these procee dings, and one that is imputable to the US. That 
said, although the US may be responsible for the content of the Vilsack Letter and may have to 
account for it to this Panel, as far as the EU is able  to ascertain, the procedures for its adoption and its 
status as a matter of US domestic law may be different  from those relevant to US statute or regulation. 
On the face of the document, it appears to have been  issued only under the authority of the Secretary 
for the US Department of Agriculture. Thus, it rema ins unclear to the EU whether or not the balance 
struck between the various competing interests is the same in the 2008 Farm Bill and the Final Rule 
on the one hand, and the Vilsack Letter on the other hand. 
2. In its Oral Statement the US describes the st atute as the product of "a long and thoughtful 
legislative process" and the Final Rule as the resu lt of "an equally deliberative regulatory process". 
The US informs us that "in crafting these rules" the US made "substantial efforts" "to strike the right 
balance", "formally soliciting input … on at least four occasions". Are these statements equally true, 
we wonder, of the Vilsack Letter? And Mr. Chairman  we are particularly reflecting on this issue from 
the point of view of Article 12.3 of the TBT Agr eement, which relates to special and differential 
treatment for developing countries, and which we ag ree is an important provision. It states that 
Members shall, in the preparation and application of technical regulations, standards and conformity 
assessment procedures, take account of the special  development, financial and trade needs of 
developing country Members, with a view to ensuri ng that such technical regulations, standards and 
conformity assessment procedures to not create unnecessary obstacles to exports from developing 
country Members. In particular, we are reflecti ng on whether or not the Vilsack Letter should be 
considered to be consis tent with Article 12.3. 
3. Disagreement remains, however, on the question of whether or not the Vilsack Letter is 
"mandatory" for the purposes of the TBT Agreement. We have two comments on that issue. First, it is 
not entirely clear to the EU that the answer to th at question would necessarily be determinative for the 
case, given the legal framework that is also av ailable under the GATT 1994 (although it might be if 
Article 2.2 of the TBT Agreement were to become  the focus of the Panel's assessment). Second, 
reviewing the content of the Vilsack Letter, there wo uld appear to be two types of statement that are 
interwoven. One type of statement is the suggestion that it may be necessary to modify the Final Rule 
if the suggested voluntary steps are not taken – and it is this on which the Third Parties have tended to 
focus. However, the second type of statement would rather appear to relate  to the implementation, 
interpretation and/or application of th e Final Rule as currently drafted. Just to illustrate this with one 
example, the first paragraph of the Vilsack Letter st ates that the Final Rule is "important to providing 
consumers with additional inform ation about the source of food pr oducts and to helping producers 
differentiate their products." This appears to be a statement about the object and purpose of the Final 
Rule. The EU is not in a position to express a vi ew on whether or not such statement duplicates, 
broadens or narrows the object and purpose as it would result from an examination of the Final Rule. However, and this is the important point, we cannot  rule out the possibility that the Vilsack Letter 
might  be also relevant to the interpretation or appli cation of the Final Rule, as a matter of US domestic 
law. And Mr. Chairman, the precedent that we have in mind is the US Statement of Administrative 
Action, a measure that accompanied the adop tion of the US Uruguay Round Agreements Act WT/DS384/R 
 WT/DS386/R 
Page C-39 
 
 
  (URAA), implementing the WTO Agreement in the US. The Statement of Administrative Action it 
not "mandatory" in US domestic law, but is re levant, as a matter of US domestic law, to the 
interpretation and application of the URAA in the US jurisdiction. The US Statement of 
Administrative Action has been referenced in past WTO disputes. 
4. As we have indicated in our written submission, if this would be the case, we could not rule 
out the possibility that the measure at issue consists  of the Final Rule and the Vilsack Letter taken 
together, or the possibility that these two documents together evidence the measure at issue. If that 
were the case, it may be that these two documents form  an indivisible package that is the measure at 
issue, and from which it might not be possible to extr act the threat of modification of the Final Rule. 
Considered as a whole, it may be that this packag e could be construed as mandatory within the terms 
of the TBT Agreement. In short, if the Vilsack Le tter is, in effect, leveraging the Final Rule, then, 
from a WTO compliance point of view, would it be entirely inappropriate if the nullification or 
impairment associated with the Final Rule would le verage the Vilsack Letter (in the event that it 
would be WTO inconsistent), at least until the V ilsack Letter would be wit hdrawn? After all, one 
good turn deserves another. The EU does not express a view on whether or not this is in fact the case, 
that being a matter for the Panel. 
5. And Mr. Chairman, there is one treaty term in Article 2.2 of the TBT Agreement to which we 
would like to draw your particular attention, and that is the term "prepared". Thus, it appears that 
some obligations in the TBT Agreement might also apply to the preparation of technical regulations. 
We are reflecting on how the term "mandatory" might  be interpreted and app lied having regard to the 
context of the use of the term "prepared", and particularly whether or not issues regarding the 
preparation of what is destined to be a mandatory measure might or might not be subject to disciplines 
in the TBT Agreement. We are reflecting whether the Vilsack Letter might be considered to fall with 
the concept of preparation. 
II. SUBJECTIVE INTENT DISTINGUISHED FROM THE EXPRESS OR IMPLIED 
OBJECT AND PURPOSE OF THE MEASURE AT ISSUE 
6. The second point on which we would like to comm ent relates to a matter already touched on 
in our written submission, and also the subject of comments from the other Third Parties. It is the distinction between the notion of subjective intent on the one hand, and the objective notion of the object and purpose of the measure at issue, as it results from the terms of that measure (such as its preamble) or from its overall design and architecture. For the EU, in an "in fact" assessment, there is 
no fact or piece of evidence that is excluded as a ma tter of principle from the analysis. Of course, to 
be of any interest or value, the complaining party will have to explain how such fact or evidence is 
relevant  to the assessment. That is, how, when taken toge ther with other facts or evidence, it permits 
further factual inferences, leading to the conclusi on that the complaining Member has demonstrated 
the existence and precise content of a WTO inconsistent measure. 
7. From this perspective, the EU would not n ecessarily seek to exclude from the assessment as a 
matter of principle factual assertions or evidence that relate to the alleged subjective state of mind (or 
intent) of a particular natural person associated in some way with the legislative process. However, it 
remains far less clear to the EU how such factua l assertion or evidence would be relevant to the 
assessment. There may be many natural persons associated in some degree with a legislative 
procedure, and it appears highly problematic to the EU to accord any substantial weight, or indeed 
any weight at all, to assertions about their alleged state of mind at some point in the process. On the 
other hand, the EU does consider that as part of  its assessment it may well be very important for a 
panel to consider the objective concept of the object and purpose of the measure at issue. The 
Appellate Body has correctly confirmed that the meaning  of a measure at issue is a question of law, 
even if the existence and content of a document addressing such meaning is a question of fact. In WT/DS384/R 
WT/DS386/R Page C-40 
 
 
  considering what is the meaning of a measure at issue, a panel will need to look to the rules of 
interpretation and other relevant legal rules applicab le in the domestic jurisdiction (as opposed to the 
rules of interpretation applicable in WTO dispute settlement). However, the EU finds it difficult to 
conceive of a system of interpretation in which object and purpose has no role whatsoever. Thus, the 
object and purpose of the measure at issue is a matt er that it is legitimate or even necessary for the 
Panel to consider. It will form part of the overa ll framework that will allow the Panel to correctly 
ascertain how the measure at issue is interpreted and applied (and thus also what effects it may have). 
This is an appropriate and even necessary pa rt of considering any "in fact" claim. 
III. LEGISLATIVE HISTORY OR PREPARATORY WORK 
8. The third related point on which we would like to  comment concerns the legislative history or 
preparatory work of the measure at issue, to which some of the other Third Parties have also referred. 
Similar observations apply. Such considerations might be relevant  to understanding how the measure 
at issue is to be interpreted and applied, and should be approached from the perspective of the 
interpretative rules applicable in the domestic juri sdiction (as opposed to the WTO, recalling that the 
Vienna Convention  refers to preparatory work as a supplemen tary means of interpretation). That said, 
preparatory work is often something of a two edged sword: does the meaning apparent from the 
preparatory work confirm the meaning apparent from the final text; or disprove it? Furthermore, as 
indicated above, insofar as the documents referenced merely speak to the intent of particular natural 
persons at a particular time, they may be of limited if any value to the assessment. 
IV. THE 60 DAY FLEXIBILITY AND FULFILMENT OF THE LEGITIMATE 
OBJECTIVE 
9. The fourth point on which we would like to co mment relates to the 60 day flexibility provided 
for in the Final Rule for ground meat, and the ob servations by the compla ining Members and some 
Third Parties that this confirms that the measure at  issue does not fulfil its stated objective. The EU – 
like the US – is somewhat puzzled by this line of argument. It seem s to us that the objective of the 
measure might fairly be stated to be informing consumers whilst at the same time avoiding 
unnecessary costs for importers . Furthermore, it appears to the EU that the 60 day flexibility is an 
aspect of the measure that is designed to reasona bly accommodate the interests of importers. For the 
importers to attack it appears both to ignore the mixed nature of the measure's objectives, and to be at 
least potentially counter-productive. 
V. ALTERNATIVE PROPOSED MEASURE: DOMESTIC AND IMPORTED 
10. The next point on which we would like to comment  relates to an alternative measure proposed 
by some of the other third parties. The EU is not at this stage persuaded by the proposal of a measure 
that would merely distinguish betw een domestic and imported products. It  seems to us that this would 
only risk to further disconnect consumer choice s from rational and potentially WTO consistent 
considerations. It would seem to exacerbate and accentuate the nature of the problem, driving 
consumers only towards domestic production, without regard to the relative merits or disadvantages 
of meat imported from various other co untries, appropriately differentiated. 
VI. LABEL B FOR LABEL A SCENARIOS 
11. Listening to the Parties' oral submissions, one issue that we are carefully considering – and 
that appears to us to be of particular importanc e for the parties -is the question of whether or not 
Label B (US and Canada\Mexico) should be available also for products derived only from US 
animals. We are considering this issue from the pe rspective of the arguments of both parties. Looking 
at the complainants' arguments, ther e are three specific points on which we are reflecting. First, we are WT/DS384/R 
 WT/DS386/R 
Page C-41 
 
 
  reflecting on why it might be unreasonable to require Label A if the steak (for example) is in fact 
made from 100% US cattle (born, raised and slaughtered  in the US). It is not immediately apparent to 
us why such a requirement, viewed in isolation, would be, per se , unreasonable. Second, we are 
puzzled by the assertion that daily segregation be tween Label A and Label B would not be possible 
because Canadian\Mexican livestock might "inadverten tly slip in to a Label A day" (Canada's Oral 
Statement, paragraph 15). We wonde r if it would be excessively costly to prevent this happening. 
Third, if slaughterhouses would really wish to use Label B, we do not understand why it would be 
excessively expensive for them to always add on e cut of Canadian\Mexican meat to each daily 
production run. Thus, there would never be a Label A issue. 
12. In general terms, we apprecia te that relatively small import volumes (compared to domestic 
production) may likely incur higher unit costs for co mplying with new regulations, but, like the US, 
we hesitate to see this, in itself, as sufficient to fi nd WTO inconsistency. On the other hand, looking at 
the same issue from the point of view of the US argu ments, there are still issues that are not clear to 
us. First, we take the US at their word and posit a "perfect" consumer – that is, one that understands 
what the labels mean. Second, we take the three spec ific explanations provided by the US that refine 
and explain what the "legitimate objective" is: to a void confusion (US Oral Statement, paragraph 9); 
to provide something "meaningful" (US Oral Stat ement, paragraph 9); and to provide additional 
information to assist in purch asing and consumption decisions. 
13. Now, I imagine myself on my next trip to the US purchasing a Label B (US and Mexico) 
steak to eat. In doing so, I have no idea whethe r or not commingling on the same production day 
occurred with respect to that steak. All I know is that my steak (which being a steak must reasonably 
be considered to have come from one animal) co mes from one of three types of animal: born in 
Mexico, raised and slaughtered in the US; born, ra ised and slaughtered in the US (and commingled); 
or born and raised in Mexico and slaughtered in  the US. As an informed consumer I have consented 
to and chosen all three of these possibilities. So fa r, so good. I cook my steak (medium rare) and settle 
down to eat it with some salad and French fries (if I'm allowed to use that term). At this point a 
helpful gentleman from the US Department of Agricultu re appears at my side and enjoins me to stop – 
because I am making a terrible error (or should I say, mistake). I am confused, he informs me. Things 
are not what they seem. That steak in fact comes fro m an animal born, raised and slaughtered in the 
US, and there was no commingling  – it should have been labelled "A". I am misled. But I would 
politely reply that I am not confused – and that with  respect I think that he might be confused. I would 
remind him that when I purchased the steak I had no idea whether or not commingling had occurred, 
and could not care a less. I had already accepted the possibility that the steak might be from an animal 
born, raised and slaughtered in the US when I made my decision to purchase and consume it. The 
helpful gentleman might try a different variation on the same theme, telling me that he is providing 
me with something meaningful – to which I would r espectfully reply that I know it already, so it is no 
more meaningful to me than the information that  I am sitting on a chair and holding a knife and fork. 
Finally, he might try to suggest that on the basis of this additional information I might care to change my purchase and consumption decision – and again I would respectfully decline, because I had already taken it into account when I made my original decision. In other words, Mr. Chairman, to coin 
a phrase, I think I would have my steak … and eat it. 
14. Perhaps one could understand the helpful gen tleman's concern if my purpose in buying a 
Label B (US and Mexico) steak was the hope that I might make a contribution to the development of 
Mexico – an objective apparently th warted by the fact that I have been misled into purchasing a pure 
US steak. However, the EU has not yet located on the file any evidence to support the proposition that 
the object and purpose of the measure at issue incl udes providing consumers with the opportunity of 
discriminating in favour of imports for positive reasons – but perhaps we are overlooking it. To 
conclude, if it would turn out that, taking the parameters of the measure as they are  (including the 
commingling rules), and based on the US' own specific clarificati ons of what it means by legitimate WT/DS384/R 
WT/DS386/R Page C-42 
 
 
  objective , this part of the measure does not, in the "real  world", plausibly meet the stated objective, 
then we would have to further reflect about Article 2.2 of the TBT Agreement. 
VII. ORIGIN RULES VERSUS ORIGIN LABELLING 
15. Finally, Mr. Chairman, we would like to re-iterate  a point that we have already alluded to in 
our submissions. We make a distinction between the issue of origin rules on the one hand, and the 
issue of labelling (including as regards origin) on the other hand. This case is not about origin rules. It 
is about labelling. And we are concerned that it sh ould not spill-over into a case about origin rules. 
Article IX of the GATT 1994 addresses marks of origin  and the Agreement on Rules of Origin, which 
cross-references Article IX of the GATT 1994, cont ains provisions about origin rules that are 
permissive. We wonder about the extent to which, if  a rule of origin would be permitted pursuant to 
these provisions, labelling on the same basis should be precluded by the TBT Agreement, which we 
recall does not refer expressly to origin. We not e that one can have ma ndatory labelling about 
anything (we refer to dumping or subsidies as an  example), and it seems to us that it might be 
problematic to dissociate any assessment of such  matters from the covered agreements that 
specifically regulate the substantive issue.  WT/DS384/R 
 WT/DS386/R 
Page C-43 
 
 
  ANNEX C-13 
 
EXECUTIVE SUMMARY OF THE THIRD PARTY ORAL STATEMENT 
OF THE EUROPEAN UNION AT THE SECOND SUBSTANTIVE MEETING 
  
1. Mr. Chairman, distinguished Members of the Panel.  We have the following brief 
observations at this time, particularly in light  of the responses to questions, rebuttals and second 
oral statements. 
I. ARTICLE IX OF THE GATT 1994 AND THE AGREEMENT ON RULES OF 
ORIGIN 
2. We note that notwithstanding the Panel's questions
1, neither Canada2 nor Mexico3 
pursues any claims under Article IX of the GA TT 1994 or the Agreement on Rules of Origin; 
and the US does not reference th ese provisions in its defence.4 Consequently there is no basis 
for the Panel to make findings with respect to these provisions. Accordingly, we ask the Panel to 
state clearly in its Report that any findings it makes are without prejudice to the relevance of 
such provisions in any future dispute. 
II. THE VILSACK LETTER 
3. With respect to the Vilsack Letter,5 we believe it may be of assistance to the Panel to 
recall the relevant provisions of Articles 4,6 57 and 78 of the International Law Commission 
Articles on Responsibility of States for Internationally Wrongful Acts,9 which have been 
                                                      
1 European Union's third party written submission, para. 3; European Union's first oral statement, 
para. 42; European Union's reply to questions 2 and 18. 
2 Canada's second written submission and replies to first set of questions (no reference to 
Article IX or the Agreement on Rules of Origin ). 
3 Mexico's second written submission (no reference to Article IX or the Agreement on Rules of 
Origin ) and reply to question 55, para. 151. 
4 United States' second written submission and replies to first set of questions (no reference to 
Article IX or the Agreement on Rules of Origin ). 
5 European Union's third party written submission, para. 24; European Union's first oral 
statement, paras. 10 to 18; European Union's reply to question 7, paras. 40 to 43. 
6 "1. The conduct of any State organ shall be cons idered an act of that State under international 
law, whether the organ exercises legislative, executiv e, judicial or any other functions, whatever position 
it holds in the organization of the State, and whatever its character as an organ of the central Government 
or of a territorial unit of the State. 
 2. An organ includes any person or entity wh ich has that status in accordance with the 
internal law of the State." 
7 "The conduct of a person or entity which is not an organ of the State under article 4 but which 
is empowered by the law of that State to exercise  elements of the governmental authority shall be 
considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance." 
8 "The conduct of an organ of a State or of a pe rson or entity empowered to exercise elements of 
the governmental authority shall be co nsidered an act of the State under international law if the organ, 
person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions." 
9 Draft Articles on Responsibility of States for In ternationally Wrongful Acts, Text adopted by 
the International Law Commission at its fifty-third session, in 2001, and submitted to the General 
Assembly as a part of the Commission's report covering the work of that session (A/56/10). Yearbook of 
the International Law Commission, 2001, vol. II, Part Two, as corrected. WT/DS384/R 
WT/DS386/R Page C-44  
 
  referenced in a number of WTO disputes as reflect ing customary public international law, also 
with respect to the question of imputability.
10 
4. We remain unpersuaded by the latest US submissions11 that, in construing the Final 
Rule and the Vilsack Letter together as a singl e measure or evidence of a single measure, 
Canada12 and Mexico13 have exceeded their (fettered) discre tion in relation to such matters; nor 
that the Panel would do so if it would proceed  in the same manner. We do not see the (un-
evidenced and thus uncertain) status of th e Vilsack Letter under US domestic law as 
determinative of this question. Rather, it appears to  us that, considered in isolation, the Vilsack 
Letter would be meaningless. It only takes on mean ing when considered together with the other 
document(s) to which it refers, particularly the Final Rule. 
III. ALLEGED LESS-FAVOURABLE TREATMENT "IN FACT" (ARTICLE III:4 
OF THE GATT 1994 AND ARTICLE 2. 1 OF THE TBT AGREEMENT) 
5. Without entering into the facts, as indicated in our prior submissions,14 we remain un-
persuaded by the Complainants' arguments and their general methodological approach to the 
problem of demonstrating less favourable treatment "in fact".15 We agree with them that the US 
"like product"16 and "private actor"17 arguments are unconvincing; a nd that the position in other 
Members is not relevant.18 Furthermore, it might or might not be that the introduction of this 
new regulatory measure has increased costs, and that this has been felt more keenly, either 
temporarily or as a result of lower volum es and higher unit costs, by importers.19 But these are 
common features of regulatory change and do not, in  our view, in themselves, demonstrate less 
                                                      
10 Appellate Body Report, US – Cotton Yarn , para. 120 and footnote 51; Appellate Body Report, 
US –Line Pipe , para. 259 and footnotes 255 to 257; Panel Report, US-Gambling , paras. 6.128 to 6.129 
and footnotes 697 to 701; Panel Report, Mexico – Taxes on Soft Drinks , para. 8.180 and footnotes 404 
and 405; Panel Report, EC-Selected Customs Matters , para. 7.552 and footnote 932; Panel Report, Brazil 
– Retreaded Tyres , para. 7.305 and footnote 1480; Appellate Body Reports, Canada/US – Continued 
Suspension , paras. 382; Panel Report, Thailand – Cigarettes , para. 7.120 and footnote 533. See also: 
Arbitration Panel Report  EC – Bananas III (US) (Article 22.6 – EC) , footnote 67; Arbitration Panel 
Report, Brazil – Aircraft (Article 22.6 – Brazil) , para. 3.44 and footnotes 45, 46 and 48; and Arbitration 
Panel Report, US – FSC (Article 22.6 – US) , footnote 52 and paras. 5.58 to 5.60 and footnotes 67 to 69. 
11 United States' second written submission, paras. 11 to 19. 
12 Canada's second written submission, paras. 102 to 107; Canada's reply to question 1. 
13 Mexico's second written submission, paras. 35 to 42; Mexico's reply to question 1. 
14 European Union's third party written submission, paras. 31 to 43; European Union's reply to 
question 3, paras. 29 to 32. 
15 In particular, Canada's second written submi ssion, paras. 5 to 45; Mexico's second written 
submission, paras. 108 to 145; Canada's second oral statement, paras. 9 to 57. See also: United States' 
second written submission, paras. 29 to 96. 
16 European Union's third party written submission, paras. 25 to 30; Canada's second written 
submission, paras. 11 to 14; Mexico's second written submission, paras. 116 to 120; United States' reply 
to question 47. 
17 Canada's second written submission, paras. 15  to 16; Mexico's second written submission, 
paras. 121 to 129. 
18 Canada's second written submission, paras. 17  to 23; Canada's Second Oral Statement, 
paras. 58 to 59. 
19 Canada's second written submission, paras. 24  to 45; Mexico's second written submission, 
paras. 125 to 145. WT/DS384/R 
 WT/DS386/R 
Page C-45 
 
 
  favourable treatment.20 Nor do we agree that origin labelling rules that apply equally to all 
cannot, by definition, be characterised  as neutral technical regulations.21 
6. We are not positing a higher evid ential burden for "in fact" cases.22 We are just recalling 
the basic fact that if you have the text of a measure that is expressly discriminatory it is a simple matter to adduce it to a panel. If you do not, yo u necessarily have to adduce evidence of other 
facts (at least two or more) and explain how they  work together to support the finding of further 
facts, of which there is no direct evidence, so  as to build a reasoned and adequate explanation 
between the facts thus established and any finding of inconsistency. We think this is something 
more than "aims and effects", and we just don't find it clearly set out in the Complainants' submissions. 
7. The covered agreements pursue a trade objectiv e, but they do not set out to eliminate 
regulatory diversity; and mutual recognition is onl y a stable operational approach if the costs 
implied by different regulatory systems do not differ excessively. 
8. Finally, we observe that an alleged "in fact" breach of Article 2.1 of the 
TBT Agreement is a particularly serious matter, to the extent that it would be the case that 
Article XX of the GATT 1994, for example,  would not be available as a defence. 
IV. PROPORTIONALITY (ARTICLE 2.2 OF THE TBT AGREEMENT) 
9. As we have indicated in our submissions , we consider that proportionality probably 
offers the best approach in this case. We agre e with the US that the importing Member sets its 
own ALOP, and that panel's should exercise restraint on the questions of whether the objective is as stated and whether it is legitimate.
23 However, we do think that  the Panel can and should 
enquire into the question of whether or not th e Complaining Members have demonstrated that 
there are less trade restrictive measures th at equally fulfil the legitimate objective. 
A. THE OBJECTIVE OF THE MEASUR E IS CONSUMER INFORMATION  
10. We do not believe that it would be necessary or appropriate in this case for the Panel to 
find that – objectively – the objective of the measure is something other than the provision of 
consumer information.24 As we have indicated in our subm issions, we think that the Panel can 
provide a satisfactory resolution of the dispute without calling into question that aspect of the 
US submissions. 
                                                      
20 European Union's third party written submission, paras. 31 to 43; United States' reply to 
questions 14 and 46. 
21 Canada's second oral statement, para. 12. 
22 Mexico's second written submission, para. 110. 
23 United States' second written submission, paras. 98 to 105. 
24 European Union's third party written submission, para. 37; European Union's first oral 
statement, paras. 19 to 23; European Union's reply to question 10, paras. 50 to 51 and Question 19, 
paras. 66 to 69; Canada's second written submissi on, paras. 50 to 54 and 57 to 68; Mexico's second 
written submission, paras. 149 to 161; United States' second written s ubmission, paras. 118 to 146 and 
reply to question 3; Canada's second oral statement, paras. 62 to 67. WT/DS384/R 
WT/DS386/R Page C-46  
 
  11. We do not agree with Canada that the TBT list of objectives is closed by reference to 
other provisions of the covered agreements;
25 nor do we agree that such objectives have to be 
"specific".26 
B. THE OBJECTIVE OF CONSUMER INFORMATION IS LEGITIMATE  
12. We consider that the objective of providing consumer information about origin is a 
legitimate one.27 We fail to see how the Complainants can reasonably argue that the reference to 
"labelling" in the TBT Agreement also refers to origin labelling;28 and yet at the same time that 
origin labelling is not a legitimate objective. We do not agree that the defending Member has to 
provide "clear and compelling" evidence of legitimacy.29 
C. THE IMPORTANCE OF THE OBJECTIVE AND THE RISKS OF NON -FULFILMENT  
13. Whilst we agree that not all objectives will n ecessarily be legitimate, we do not consider 
that it would be necessary or appropriate in this  case for the Panel to address this question. We 
think it both unnecessary and incorrect to opine about the relative degree of regulatory space 
under the SPS and TBT Agreements – if anythi ng we see more regulatory space under the 
TBT Agreement.30 We think that the Panel can provide a satisfactory resolution of the dispute 
on the basis of other reasoning. 
D. LABEL B IN LABEL A SCENARIOS : A LESS TRADE RESTRICTIVE MEASURE THAT EQUALLY 
FULFILS THE STATED OBJECTIVE  
14. We have already explained why we think that the Complainants have identified a 
measure that is less trade restrictive, or significantly  less trade restrictive, and that equally  fulfils 
the stated objective.31 That measure would be to permit the use of label B in all cases, even if 
co-mingling did not occur, or occurred over an extended period of time (such as a year, for 
example). This would be less trade restrictive because US slaughter houses would no longer be fettered by the COOL measure in their decisions  to take Canadian and Mexican cattle and hogs. 
It would equally  fulfil the stated objective because the overall design and architecture of the 
measure reveals that it is premised on the assumption that US consumers do not care if their 
steak is a bit more likely  to be American than one might imagine, given the indication on the 
label (US and Canada/Mexico).
32 Conversely, there is no evidence to support the view that the 
measure was designed so as to enable US consumers to prefer imported  meat.33 Finally, nothing 
would prevent slaughterhouses using label A if c onsumers would want it. We think this would 
largely address the concerns raised by Canada  and Mexico, whilst leaving the essence of the 
measure, as it is already designed , in place.34 
                                                      
25 Canada's second written submission, paras. 70 to 76. 
26 Canada's second written submission, paras. 55 to 56 and para. 69. 
27 United States' second written submission, paras. 106 to 117. 
28 See the discussion at paras. 15 to 22 of the European Union's third party written submission. 
29 Canada's second written submission, para. 70. 
30 Canada's second written submission, para. 86 and paras. 91 to 95. 
31 European Union's first oral statement, paras. 27 to 41. 
32 United States' reply to question 48. 
33 United States' reply to question 56. 
34 Canada's second written submission, paras. 77 to  83; Canada's reply to question 24; Mexico's 
second written submission, paras. 87 to 98; Mexico's reply to question 24; US Replies to Questions 10, 24 
and 29. WT/DS384/R 
 WT/DS386/R 
Page C-47 
 
 
  E. THE VILSACK LETTER  
15. We have explained that we consider the V ilsack Letter – which apparently "reflects the 
priorities of the new Administration"35 – to be more trade restrictive than the Final Rule, and 
thus by definition inconsistent with Article 2.2 of the TBT Agreement. We think that such a 
finding would preclude reversion to a measure of  that substantive content in the context of 
compliance.36 
F. VOLUNTARY LABELLING  
16. We have explained why we consider th at voluntary labelling would not necessarily 
achieve the stated objective.37 
G. SUBSTANTIAL TRANSFORMATION  
17. We have explained why we c onsider that the Complainants ' arguments about substantial 
transformation are not persuasive.38 
V. CONCLUSION 
18. On the basis of the foregoing, we consider that the Panel could reasonably find that the 
measure is inconsistent with Ar ticle 2.2 of the TBT Agreement insofar as it does not permit the 
use of label B in other  situations where the meat may in fact be of pure US origin; and insofar as 
the Vilsack Letter is more trade restrictive than necessary to fulfil a legitimate objective. With 
the possible exception of Article 12 of the TBT Agreement,39 the Panel could judicially 
economise on the remainder of the claims. 
 
                                                      
35 United States' reply to question 4, para. 6. 
36 European Union's reply to question 6, paras. 40 to 43; Canada's second written submission, 
paras. 102 to 111; Mexico's second written submission, paras. 35 to 42. 
37 European Union's third party written submission, paras. 41 and 56; Canada's second written 
submission, paras. 96 to 98; Mexico's second written submission, paras. 165 to 169; United States' reply 
to question 37. 
38 European Union's third party written submission, para. 57; European Union's reply to 
question 17, paras. 63 to 64 and Question 2, para. 27; Canada's second written submission, paras. 99 to 
101; Mexico's second written submission, paras. 165 to 169. 
39 European Union's first oral statement, para. 12; European Union's reply to question 16, 
paras. 59 to 62. WT/DS384/R 
WT/DS386/R Page C-48 
 
 
  ANNEX C-14 
 
THIRD PARTY ORAL STATEMENT OF GUATEMALA 
AT THE FIRST SUBSTANTIVE MEETING 
 
 1. Mr. Chairman, Members of the Panel, delegati ons representing the Parties and Third Parties 
to this dispute, staff of the WTO Secretariat, good morning.  
2. At the outset, on behalf of the delegation of Gu atemala, I would like express our appreciation 
for this opportunity to present our views during this proceeding.  
3. Guatemala is a small country with limited r esources. Nevertheless, Guatemala makes every 
effort to actively participate in those disputes, wher e it has a systemic interest. In this case, Guatemala 
has a systemic interest in all the issues raised by the Parties and my delegation would like to take this 
opportunity to offer some comments to the Panel. 
4. Guatemala recognizes that all WTO Members have the right to adopt mandatory country of 
origin labelling requirements. That is, any Member ma y require meat or any other product to have its 
origin indicated when it arrives at its border. None  of the Parties or the Third Parties appear to 
disagree on this. The question then, is whether by  adopting such origin labelling requirements, a 
particular Member (in this case, the United States) is, or is not, acting in a manner contrary to its 
obligations under the WTO Agreements. 
5. Canada and Mexico argue that this case is a bout protectionism and discrimination. According 
to the complainants, the US country of origin requirements impose significantly greater costs and 
burdens on the use of Canadian and Mexican cattl e and hogs in the production of beef and pork, 
mainly because it is required to segregate the products  to effectively comply with the COOL measure. 
6. In addition, as a part of the legal instrume nts that conform the COOL measure, Canada and 
Mexico include an open letter from the US Secret ary of Agriculture, Mr. Tom Vilsack, on which he 
asked the industry to "voluntarily" adopt labelling in  a manner more restrictive than that provided in 
the COOL legislation and the Final Rule. As an alte rnative, Mr. Vilsack stated in his letter that he 
would "carefully consider whether modifications to the rule will be necessary to achieve the intent of 
Congress". 
7. On the other hand, the United States argues that  the objective of its labelling requirements is 
to ensure that consumers are provided information a bout the meat and other food products they buy at 
the retail level and to prevent "c onsumer confusion" with regard to the origin of the products. 
According to the US, among other aspects, nothing in the regulations requires segregation. The US has the position that the legal instruments identifie d by the complainants do not conform one COOL 
measure and that the Vilsak Letter is not a technical regulation nor is it mandatory. 
8. None of the parties to the dispute appear to  deny that COOL requirements (independently 
whether it is a single measure or a set of measures) are technical regulations. Therefore, in Guatemala's view, the Panel should ascertain first,  whether the technical regulation or regulations 
fulfil a legitimate objective. 
9. Guatemala agrees with the US that Article 2.2 of the TBT Agreement contains a 
nonexhaustive list of legitimate objectives, as confirmed by  the use of the term "inter alia". However, 
Guatemala is not persuaded that, in this particular  case, the measure or measures at issue are designed WT/DS384/R 
 WT/DS386/R 
Page C-49 
 
 
  in a manner to fulfil the alleged legitimate obj ective (i.e., among others, to prevent "consumer 
confusion"). 
10. We all heard yesterday that there could be cases where commingling 1% meat from the 
United States with 99% of meat from Canada (or Me xico) may allow the use of the label stating that 
the product is from the United States and Canada  (or Mexico). We also heard from Mexico the 
example that cattle coming from Guatemala and be ing simply slaughtered in Mexico would be 
classified in the United States as Mexican beef. Ho wever, it would not be the same case for Mexican 
cattle that was slaughtered in the United States, as the beef would not be classified as from the United 
States, but as Mexican. 
11. Therefore, Guatemala is of the view that the United States has not offered sufficient evidence 
as to how the COOL measure or measures fulfil th e alleged legitimate objective of giving accurate 
information to the consumer regarding the origin of  the products and, in this manner, to prevent 
confusion. 
12. In the event that the Panel considered that th e COOL measure or measures fulfil a legitimate 
objective, in Guatemala's view, the second questi on would be to ascertain whether the technical 
regulation or regulations are not "pre pared, adopted or applied" with a view to or with the effect of 
creating unnecessary obstacles to international trade. Here, the analysis of the legal value of the 
Vilsak Letter might be relevant. Guatemala consid ers that this letter should be considered as a 
measure for purposes of this dispute. 
13. In particular, not only because any act or omission attributable to a WTO Member can be a 
measure of that Member for purposes of dispute settlement proceedings, but also because the letter, 
although requests "voluntary" actions from the industry, appears not to give any other option but to comply with such "voluntary" actions (mak ing this measure, de facto, mandatory). 
14. In the remote event that the Panel determined th at the technical regulation or regulations were 
not prepared, adopted or applied with a view to or  with the effect of creating unnecessary obstacles to 
international trade, Guatemala is of the view th at the Panel then needs to examine whether the 
conditions of competition where modified. This ex amination should be, in Guatemala's view, linked 
to the question of whether products imported from the territory of any Member are accorded treatment 
no less favourable than that accorded to like pro ducts of national origin  and to like products 
originating in any other country. To this end, the Panel may need to ascertain whether the alleged 
costs of segregation effectively modified the conditions of competition. 
15. Finally, Mr. Chairman, regarding the question you posed to the third parties about any 
mandatory country-of-origin labelling scheme that our  countries could maintain, I can inform that we 
have just received a considerable amount of info rmation from our Capital. We are in the process of 
examining this information. Provisionally, I can ad vance that we have some mandatory rules for 
country-of-origin labelling. However, we would s ubmit further detailed inform ation in writing within 
the delays established by the Panel foreseen to that end. WT/DS384/R 
WT/DS386/R Page C-50 
 
 
  ANNEX C-15 
 
EXECUTIVE SUMMARY OF THE  
THIRD PARTY WRITTEN SUBMISSION OF JAPAN 
 
 
I. INTRODUCTION 
1. Japan's third party submission focuses on the cons istency with Article 2.1 of the Agreement 
on Technical Barriers to Trade (the "TBT"), Artic le III.4 of the General Agreement on Tariffs and 
Trade 1994 (the "GATT") and Second Sentence of Article 2.2 of the TBT, of the country-of-origin 
labelling requirements (the "COOL measure") im posed by the United States on certain covered 
commodities including beef and pork when they are sold to final consumers.  
II. THE PANEL SHOULD CAREFULLY SCRUTINIZE WHETHER THE COOL 
MEASURE ACCORDS LESS FAVOURAB LE TREATMENT TO IMPORTED 
PRODUCTS THAN TO LIKE PRODUCTS OF  NATIONAL ORIGIN WITHIN THE 
MEANING OF ARTICLE 2.1 OF THE TBT AND ARTICLE III.4 OF THE GATT  
2. The first question to be examined by the Pa nel is whether the COOL measure, which is 
applied only to beef and pork, is considered as according less favourable treatment to 
Canadian/Mexican cattle  and hogs  than that to those of the United States, and constitutes the violation 
of Article 2.1 of the TBT and Article III.4 of the GATT . 
A. A
RTICLE  2.1 OF THE TBT 
3. Canada and Mexico consider that the COOL  measure constitutes a technical regulation 
defined in ANNEX 1, paragraph 1 of the TBT.1 On this basis, they claim that Canadian/Mexican cattle  
and hogs  are accorded treatment less favourable than that to cattle  and hogs  of the United States, and 
that the COOL measure is in violation of Article 2.1 of the TBT.  
4. The United States, on the other hand, considers th at the phrase "in respect of" in this provision 
is interpreted as meaning "be directed to; refer to ; related to; deal with; be concerned with" in 
accordance with the Oxford Dictionary2 and argues that the scope of the national treatment obligation 
is restricted to the products which are "related to " or "directed to" a technical regulation concerned on 
the basis of "in respect of technical regulations" in Article 2.1 of the TBT. In other words, the United 
States argues that, since the COOL measure merely regulates the labelling related to beef and pork in 
the retail market of the United States, this measure  is not considered as being "related to" to the 
labelling of livestock such as cattle  and hogs , and thus falls outside the regulatory scope of Article 2.1 
of the TBT. However, neither Canada nor Mexico refers to this regard3. 
5. Since there is no jurisprudence regarding the phrase "in respect of" in Article 2.1 of the TBT, 
and since Article 2.1 of the TBT places no limiting words on "technical regulations" in contrast to 
Article III:4 of the GATT , where "all laws, regulations and requirements" are limited by the words 
"affecting their internal sale, offering for sale, purchase, transportation, distribution or use", Japan would respectfully ask the Panel to carefully ex amine the interpretation and argument by the United 
States regarding the phrase "in respect of", which is spelled out in the previous paragraphs in this 
submission.   
                                                      
1 Canada's first written submission, paras. 69-74; Mexico's first written submission, paras. 239-260. 
2 United States' first written submission, para. 197. 
3 United States' first written submission, para. 198. WT/DS384/R 
 WT/DS386/R 
Page C-51 
 
 
  B. ARTICLE  III.4  OF THE GATT  
6. The claim by Canada and Mexico that the COOL measure, which is applied only to beef and 
pork, accords less favourable treatment to Canadian/Mexican cattle  and hogs  than that to those of the 
United States needs to be examined in relation to "affecting" and "less favourable treatment" under 
Article III.4 of the GATT . 
7. Regarding the word "affecting", the Appellate Bo dy held that this requirement 'serves to 
define the scope of application of Article III:4'.4 In this regard, Mexico claims that, while the COOL 
measure does not directly regulate cattle , it affects the internal sale of cattle .5  Thus, it concludes that 
the COOL measure violates the national treatment obligation in Article III.4 of the GATT . Canada 
also makes similar arguments to Mexico.6  
8. There are not a few precedents regarding the term "affecting" under Article III.4 of the GATT .  
For example, the panel in Canada – Autos  held that '[t]he word "affecting" in Article III:4 of the 
GATT has been interpreted to cover not only la ws and regulations which directly govern the 
conditions of sale or purchase but also any laws or  regulations which might adversely modify the 
conditions of competition between domestic and imported products'.7  
9. Moreover, the panel's reasoning in Mexico – Taxes on Soft Drinks  with respect to Article III.4 
of the GATT  may offer a suggestion for the present case. In this case, the United States claimed that 
the soft drink tax and the distribution tax, both of which are imposed on soft drinks and syrups  when 
they are sold in retail, affect ed not only the internal sale of soft drinks and syrups  but also the internal 
sale of sweeteners which are used to produce soft drinks, in the Mexican market, and accorded less 
favourable treatment to US beet sugar  than that to Mexican cane sugar  under Article III.4 of the 
GATT . In this regard, the panel concluded that the internal sale of beet sugar  of the United States in 
the Mexican retail market was also affected by  the soft drink tax and the distribution tax.8  
10. Thus, there is no doubt for the Panel to conclude  that the COOL measure is considered as 
affecting internal sale of Canadian/Mexican cattle  and hogs  in the retail market of the United States. 
Moreover, this issue should also be examined in re lation to "less favourable treatment". In this regard, 
the United States points out that the detrimental effects to import cattle /hogs  in the market alleged by 
Canada and Mexico are caused by "factors not re lated to the COOL measur es", and thus concludes 
that the COOL measures do not modify the condition of competition. 9  
11. Japan is of the view that the question whethe r the COOL measure modifies the condition of 
competition in livestock trade, that is Canadian cattle  and hogs , should be carefully examined by the 
Panel, because this measure does only regulates the labelling requirement for beef and pork and does 
not directly regulate internal sale of livestock. 
12. Lastly, Japan points out that the reason is not  that clear why the United States cites the 
paragraphs from 196 to 199 of its Written Submission,  which are about the interpretation of the phrase 
"in respect of" in Article 2.1 of the TBT, in the footnote 331 of its written submission in the context of 
"less favourable treatment" of Article III.4 of the GATT . Should the United States consider that there 
is a link between two phrases, the reason for su ch link needs to be further clarified.  
                                                      
4 United States' first written submission, para. 198. 
5 Mexico's first written submission, para. 213. 
6 Canada's first written submission, paras. 221-222. 
7 Panel Report, Canada – Autos , para. 10.80. See also Appellate Body Report, US – FSC (Article 21.5 
– EC) , paras. 208-209. 
8 See Panel Report, Mexico – Taxes on Soft Drinks , para. 8.109. 
9 United States' first written submission, para. 150. WT/DS384/R 
WT/DS386/R Page C-52 
 
 
  III. THE PANEL SHOULD CAREFULLY EXAMINE WHETHER THE COOL 
MEASURE IS TRADE-RESTRICTIVE THAN NECESSARY TO FULFIL A LEGITIMATE OBJECTIVE 
13. The next question to be examined by Japan is  whether the COOL measure, which is applied 
as a technical regulation only to beef and pork, is determined to be more restrictive to trade of 
Canadian/Mexican cattle  and hogs  than necessary to fulfil a legitimate objective under Article 2.2 of 
the TBT. 
A. T
HE PANEL SHOULD CAREFULLY EXAMINE WHETHER THE COOL  MEASURE RESTRICTS 
TRADE  
14. Canada and Mexico also allege a violation of the second sentence of Article 2.2 of the TBT. In 
order to find that a measure is considered more trade-restrictive than necessary to fulfil a legitimate 
objective, Canada argues that the following two elemen ts need to be established: first, a technical 
measure must restrict trade; and second, the trade- restrictiveness of the technical regulation must be 
greater than necessary to fulfil its legitimate objective.10 With respect to the first requirement, Canada 
argues that the COOL measure has restricted trade in Canadian cattle  and hogs , while the COOL 
measure is applied only to beef and pork.11 
15. Thus, Japan respectfully asks the Panel to caref ully examine whether the COOL measure is 
considered as restricting trade of Canadian/Mexican cattle  and hogs  to the United States under second 
sentence of Article 2.2 of the TBT. The legal relationship between the first sentence and the second 
sentence of Article 2.2 of the TBT might shed some lights on the assessment of this question. The first 
sentence reads that "[m]embers sha ll ensure that technical regulations are not prepared, adopted or 
applied with a view to or with the effect of creating unnecessary obstacles to international trade ." 
(Italic Added)  Since the second sentence begins w ith the phrase of "[f]or this purpose", and as also 
confirmed by the United States and Canada that 'the  second sentence explains what the first sentence 
means'12, the interpretation of the phrase "international tr ade" in the first sentence could provide for 
some clues to the regulatory scope of "trade" under the phrase "trade-restrictive" in the second 
sentence. 
B. THE UNITED STATES NEEDS TO DEMONSTRATE IN ITS REBUTTAL THAT THE ALTERNATIVE 
MEASURES RAISED BY CANADA AND MEXICO ARE NOT LESS RESTRICTIVE TO TRADE OF 
CANADIAN /MEXICAN CATTLE  AND HOGS  THAN THE COOL  MEASURE  
16. Both Canada and Mexico claim that the COOL  measure is more restrictive to trade of 
Canadian/Mexican cattle  and hogs  than necessary to fulfil its legitim ate objective. In this context, 
they raise the following alterna tive measures; first, a Voluntary Labelling Scheme; and second, a 
Labelling System Based on Substantial Transformation.13  
17. In this regard, Canada enumerates the three elements to be estab lished for determining 
whether a measure is "more trade-restrictive th an necessary" under the second sentence of Article 2.2 
of the TBT as follows: first, an alternative measure exis ts that would meet the Member's legitimate 
objective; second, the alternative measure is reaso nably available taking into account technical and 
                                                      
10 Canada's first written submission, para. 183. Mexico also refers to "trade-restrictive" as one of the 
requirements. Mexico's first written submission, paras. 305-307. 
11 Canada's first written submission, para. 186. Mexi co also considers that the meaning of "trade-
restrictive" is to "deny competitive opportunities to im ports of Mexican feeder ca ttle". Mexico's first written 
submission, para. 313. 
12 United States' first written submission, para. 202. 
13 Canada's first written submission, para. 191. WT/DS384/R 
 WT/DS386/R 
Page C-53 
 
 
  economic feasibility; and third, the alternative meas ure is less restrictive to  trade than the measure 
being challenged.14 With respect to the third requirement, Canada claims that the COOL measure has 
resulted in a significant reduction in exports of Canadian cattle  and hogs  to the United States.15 
18. While the United States does not attempt to rebut the case by Canada and Mexico concerning 
this regard, it is to be noted that the United States, if necessary, would need to show in its rebuttal that 
the alternative measures raised by Canada a nd Mexico are not less restrictive to trade of 
Canadian/Mexican cattle  and hogs  to the United States than the COOL measure, not trade of 
Canadian/Mexican beef and pork. 
C. THE PANEL SHOULD CAREFULLY INTERPRET THE SECOND SENTENCE OF ARTICLE  2.2 OF THE 
TBT   
19. Regarding how to prove "more trade-restrictiv e than necessary" under the second sentence of 
Article 2.2 of the TBT, the United States argues that one of the elements to be established by a 
complainant is whether an alternative measure is significantly  less trade-restrictive to trade.16  I n  
support of incorporating the term "significantly" into this provision, it relies on the contextual 
similarities between Article 2.2 of the TBT and Article 5.6 and Footnote 3 of the Agreement on the 
Application of Sanitary and Phytosanitary Measure (the " SPS" ).17 It also invokes the December 15, 
1993 letter from the Director-General of the GATT to  the Chief United States Negotiator concerning 
the application of Article 2.2 of the TBT in order to support its own contextual interpretation18. 
20. However, the United States seems to misunders tand the ordinary meaning of the terms in 
interpreting the WTO Agreement. It is already est ablished that Article 31 of the Vienna Convention 
on the Law of Treaties has attained the status of a rule of customary or general international law in 
interpreting the WTO Agreement.19 The fact that there is neither "significant" nor "significantly" in 
Article 2.2 of the TBT must be taken into account, and  the difference in the wording between 
Article 2.2 of the TBT and Article 5.6 and Footnote 3 of the SPS must be read on the contextual basis.  
Thus, Japan would request the Panel to examine car efully the above assertion of the United States in 
this light. 
                                                      
14 Canada's first written submission, para. 190. See also Mexico's first written submission, para. 310. 
15 Canada's first written submission, para. 199. See also Mexico's first written submission, para. 317. 
16 United States' first written submission, para. 249 (italic original). 
17 United States' first written submission, paras. 246-247. 
18 United States' first written submission, para.248. 
19 See also Article 3.2 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes. WT/DS384/R 
WT/DS386/R Page C-54 
 
 
  ANNEX C-16 
 
EXECUTIVE SUMMARY OF THE THIRD PARTY ORAL STATEMENT 
OF JAPAN AT THE FIRST SUBSTANTIVE MEETING 
 
 
I. INTRODUCTION 
1. Due to its systemic interest in the sound interpre tation of the legal obligations at issue, Japan's 
third party oral statement focuses on two points rega rding Article 2.1 of the Agreement on Technical 
Barriers to Trade ("TBT Agreement"), especially the following issues. 
 (1) Whether the COOL measure accords less favourable treatment to Canadian/Mexican 
cattle and hogs than to the like products of the United States; and  
  (2) the interpretation of the phrase "in respect of" under Article 2.1 of the 
TBT Agreement in its consideration of the views expressed by the United States and 
other third parties. 
 
II. WHETHER THE COOL MEASURE ACCORDS LESS FAVOURABLE 
TREATMENT TO CANADIAN/MEXICAN CATTLE AND FOGS THAN TO THE 
LIKE PRODUCTS OF THE UNITED STATES UNDER ARTICLE 2.1 OF THE 
TBT AGREEMENT 
2. It is established that a measure in question is considered to be according less favourable 
treatment to foreign products than to the like produc ts of domestic origin if this measure modifies the 
conditions of competition  in the relevant market to the disadvantage of the imported product.
1  
3. In Korea – Various Measures on Beef , the Korea's dual retail system promulgated in 1990 
restricted a 'Specialized Imported Beef Store' from selling domestic beef , and other small retailers 
from selling imported beef  in the Korean retail market. As the result of this, 'the existing small 
retailers had to choose between, on the one hand, c ontinuing to sell domestic beef and renouncing the 
sale of imported beef or, on the other hand, ceasing to sell domestic beef in order to be allowed to sell 
the imported product. Apparently, the vast majority of  the small meat retailers chose the first option'.2 
Accordingly, while the dramatic reduction in number of retail outlets for imported beef occurred by 
the decisions of individual retailers who could c hoose freely to sell the imported beef, the Appellate 
Body stated that '[t]he  legal necessity of making a choice  was…imposed by the measure itself. The 
restricted nature of that choice should be noted…T he choice was limited to selling domestic beef only 
or imported beef only'.3 The Appellate Body also held that '[w]hat is addressed by Article III:4 is 
merely the governmental intervention  that affects the conditions under which like goods, domestic 
and imported, compete in the market within a Member's territory'.4  
4. In this regard, Canada asserts that the C OOL measure requires US feeding operations and 
slaughter houses to segregate livestock at each stage of the production process.5 On the other hand, the 
United States argues that '[i]n law and in fact, the 2002 COOL Statute, as amended, 2009 Final Rule, 
                                                      
1 Appellate Body Report, Korea – Various Measures on Beef , para. 144; Appellate Body Report, 
Dominican Republic – Import and Sale of Cigarettes , para. 91. 
2 Appellate Body Report, Korea – Various Measures on Beef , para. 145. 
3 Korea – Various Measures on Beef , Appellate Body Report, para. 146. (underline added) 
4 Korea – Various Measures on Beef , Appellate Body Report, para. 149. (italic original) 
5 Canada's written submission, para. 95. WT/DS384/R 
 WT/DS386/R 
Page C-55 
 
 
  and FSIS Final Rule do not require US  processors to segregate livestock'.6  According to the United 
States,  US processors are not legally prevented fro m buying Canadian/Mexican cattle and hogs in the 
US retail market and explained several options available for US processors.  
5. Japan notes that, in Korea – Various Measures on Beef , the dual distribution system based on 
the origins of products was directly imposed by Ko rea's law and regulation. However, there may be a 
possibility that the COOL regulations are s till regarded as governmental intervention that de facto  
compels US feeding operations and slaughter houses to make a choice to purchase US cattle and hogs.
7 While admitting that "U.S. feeding operations and slaughter houses do, in theory, have ability 
to 'choose' whether to use Canadian cattle and hogs, and US retailers have, in theory, the ability to 
'choose' to sell Canadian-origin beef and pork", Ca nada still asserts that "the COOL measure imposes 
the 'necessity of making a choice'" on US industry to use exclusively US-origin livestock.8  T h e  
United States responds that, while cont rasting with the Appellate Body in Korea – Various Measures 
on Beef  which referred to "the legal  necessity of making a choice", "the COOL leads to some 
producers experiencing a commercial  necessity to segregate products."9 (Italic Original)   
6. Thus, there appear to be divergent views am ong the parties on whether the COOL measures at 
issue impose a kind of "legal necessity of making a choice" referred to by the Appellate Body in 
Korea – Various Measures on Beef . Japan considers that resolving th is issue would turn on a factual 
analysis as to whether the measures at issue re quires segregation and whether segregation costs are 
such a high level that they compel US processors to use only US-origin animals. 
III. THE INTERPRETATION OF THE PHRASE "IN RESPECT OF" UNDER 
ARTICLE 2.1 OF THE TBT AGREEMENT IN CONSIDERATION OF THE VIEWS 
EXPRESSED BY OTHER THIRD PARTIES 
7. Regarding the phrase "in respect of" under Article 2.1 of the TBT, the United States argues in 
its written submission that, since the COOL Statut e and 2009 Final Rule mere ly regulate the labelling 
related to beef and pork in the retail market of the United Stat es, this measure is not considered as 
being "related to" to the labelling of livestock such as cattle  and hogs , and thus falls outside the 
regulatory scope of Article 2.1 of the TBT.10 
8. On this issue, Australia provides its view th at the phrase "in respect of" should mean that 
"where technical regulations are applied by a WTO Member".11 The EU seems to argue that 
                                                      
6 United States' written submission, paras. 153, 159. 
7 In this regard, New Zealand also argues in its third party submission that 'there may be a violation [of 
Article 2.1 of the TBT] where those private actions are compelled, de facto  or de jure , by the measure at issue'. 
New Zealand submits that 'the Panel should consider whether governmental actions have created the situation 
where private actors are compelled to act in a certain way because of a "n ecessity of making a choice"'. From 
these observations, New Zealand seems to argue that, even in case that private actors are de facto  compelled to 
act in a certain way through governmental actions, it might be decided that the condition of competition is 
modified to the disadvantage of the imported product. According to New Zealand, 'although a technical 
regulation may not explicitly require a specific action, it nevertheless unduly influences the actions of private 
entities so as to adversely affect "the conditions under  which like goods, domestic and imported compete in the 
market"' (New Zealand, third party written submission, paras. 26-27.). 
8 Canada's written submission, para. 91. 
9 United States' written submission, para. 171. 
10 United States' first written submission, para. 198. 
11 Australia's third party submission, paras. 39-44. WT/DS384/R 
WT/DS386/R Page C-56 
 
 
  Article III.4 of the GATT  provide relevant context for th e interpretation of this phrase under 
Article 2.1 of the TBT.
 12  
9. While Article III.4 of the GATT  reads "in respect of all laws , regulations and requirements 
affecting their internal sale, offering for sale, purchas e, transportation, distribution or use", Article 2.1 
of the TBT reads "in respect of technical regulations".  Given the similarity of, and close relation 
between, those two provisions, as agreed among parties,13 Article III.4 of the GATT  should provide 
guidance for the interpretation of Article 2.1 of the TBT, including the phrase "in respect of". 
                                                      
12 European Union's third party submission, paras. 27-30. 
13 See Canada's first written submission, para. 78; Me xico's first written submission, para. 263; United 
States' first written submission, para. 145. WT/DS384/R 
 WT/DS386/R 
Page C-57 
 
 
  ANNEX C-17 
 
THIRD PARTY ORAL STATEMENT 
OF JAPAN AT THE SECOND SUBSTANTIVE MEETING 
 
 
I. INTRODUCTION 
1. Mr. Chairman and distinguished members of th e Panel, Japan appreciates the opportunity to 
present its brief views as a third party in this importa nt dispute.  Today, we will not reiterate what we 
have already said in our written submission and firs t oral statement.  Rather, we will focus on 
different issues regarding Article 2.2 of th e Agreement on Technical Barriers to Trade 
("TBT Agreement"). 
II. ARTICLE 2.2 OF THE TBT AGREEMENT 
2. The parties claim that whether the COOL me asure "fulfils" the legitimate objective of 
providing consumer information and preventing cons umer confusion depends on the factors including 
the following ones. 
 What kind of information US consumers want from a country-of-origin labelling; 
 Whether US consumers can understand the diffe rences between Label "A", "B", and "C" 
meat products; and 
 Whether the COOL measure provides US cons umers with accurate information about the 
origin of meat products. 
3. First, according to Canada,1 "[t]he COOL measure provides information that US consumers 
generally are not interested in knowin g and it is therefore not meaningful."2  It also argues that "the 
vast majority of consumers express no interest in country-of-origin labelling[…]much less in the kind 
of information required to be provided by the COOL measure."3  Mexico also argues that "[t]o the 
extent some US consumers stated they wanted information on the country in which the cattle used to 
produce beef products were born and raised, the proportion of those consumers to the entire population of US beef consumers was very small."
4  In response, the United States claims that the US 
consumers want information about the country-of-o rigin of the meat products they buy, including 
information about where the source animals were born, raised, and slaughtered.5  As a matter of fact, 
it may occur to any society that the scope of info rmation that a labelling measure in question provides 
to its domestic consumers does not correspond exactly to  the one they actually desire.  In other words, 
                                                      
1 Canada argues that "in order to fulfil the objec tive of providing consumers with information, the 
information must be 'meaningful'.  In other words, it must provide consumers with information that is desired by 
them, or at least information on which they are willing to act." (Canada's second written submission, para. 81, 
Underline Added). 
2 Canada's second written submission, para. 82. 
3 Canada's second written submission, para. 82. See also Canada's responses to the Panel's questions 
from the first substantive meeting, para. 82 ("There may be a small sub-set of consumers who are interested in whether their meat comes from animals bo rn and raised in the United States"). 
4 Mexico's second written submission, para. 68.   
5 United States' second written submission, paras. 11 1-114.  The United States also states that "[US] 
consumers believe that meat products that are designated  as US origin are and should be derived from animals 
born, raised, and slaughtered in the United States and that  other definitions of US origin would be misleading." 
(United States' answers to Panel's first set of questions, para. 93). WT/DS384/R 
WT/DS386/R Page C-58 
 
 
  information to be provided by a labelling measu re may cover information other than domestic 
consumers actually want.  Does this fact lead a pa nel to decide that this measure does not fulfil the 
legitimate objective of providing consumers informa tion?  Given that its objective is to provide 
consumers with information, we do not believe th at a government should always be free to enforce 
any labelling measure irrespective of what kind of  information domestic consumers actually desire.  
However, in Japan's view, only the evidence showi ng the minor gap between c onsumers' desire and a 
labelling measure in terms of the sc ope of information does not always lead a panel to rule that the 
measure does not fulfil the legitimate objec tive of providing consumers information. 
4. This view is also supported by the following reasoni ng.  As also explained in its answer to the 
Panel's question 15, Japan is of the view that the te rm "origin" in the context of the customs law is 
different from the one in the context of a labelling.
6  Therefore, the Agreement on Rules of Origin 
does not provide clear guidance for the term "origin"  in the context of a labelling.  Moreover, it is 
provided in the preamble of the TBT Agreement th at "no country should be prevented from taking 
measures necessary[…]at the levels it considers appropr iate".  On this basis, there exists no clear 
provision in the WTO Agreement specifying what in formation should be attached to a country-of-
origin labelling.  In other words, the question as to what extent of information a country-of-origin 
labelling system should include falls within the discr etion of WTO Members.  However, this labelling 
system should not be more trade-restrictive th an necessary to fulfil its legitimate objectives.  
5. Second, according to Canada,7 "[t]he meaning of the labels [in the COOL measure] is not 
easily deciphered by [US] consumers.  The averag e consumer would not be able to appreciate the 
difference between the various labels",8 and "[m]ost consumers do not understand the subtle 
differences between Label 'A', 'B', and 'C' meat." 9  Mexico also states that " it is clear that the average 
consumer [in the United States] will not be able to  understand the exact meaning of the information 
contained in the label."10  However, no party submits any convincing evidence that shows the 
consumer's ability or disability to distinguish the di fferences between these Labels.  It might be true 
that US consumers are sometimes not able to pe rfectly understand what the difference between Label 
"B" and "C" means without additional information.   While the consumers' perception may play a 
certain role to a panel in examining whether a labelling measure fulfils its legitimate objective of 
providing consumers information about the country -of-origin for meat products, the Panel should 
carefully examine whether the alleged disability of consumers to recognize the distinctions between 
Label "A", "B", and "C" is sufficient to decide  that the COOL measure does not fulfil such an 
objective.   
6. Third, the COOL measure aims at providing  US consumers with information about the 
country-of-origin where the animal from whic h the meat was derived was born, raised, and 
slaughtered.11  In addition, the United States claims that  the objective of the COOL measure is to 
prevent US consumers from being confused with th e wrong use of labelling "Product of U.S.", which, 
according to the United States, should be used only when the source animals were born, raised, and 
slaughtered in the United States.12  Thus, it needs to be examined whether the COOL measure is 
structured so that US consumers are informed of an d not confused with the country-of-origin of meat 
products.                                                         
6 Japan's replies to questions from the Panel following the first hearing, paras. 3-5. 
7 Canada argues that "to fulfil its purported objective,  the information available as a result of the COOL 
measure would have to be accurate." (Can ada's first written submission, para. 178). 
8 Canada's first written submission, para. 181. 
9 Canada's second written submission, para. 79. 
10 See also Mexico's responses to the Panel's questio ns from the first substantive meeting, para. 116. 
11 United States' answers to Panel's first set of questions, paras. 105, 107; United States' opening 
statement at the first substantive meeting, para. 38. 
12 See also United States' answers to Panel's first set of questions, paras. 100-101,104. WT/DS384/R 
 WT/DS386/R 
Page C-59 
 
 
  7. As to the multiple-origin labelling for muscle cuts of meat  under the COOL measure such as 
Label B and Label C, Mexico claims that Label B, "in itself, is confusing because consumers will not 
know that the entire process of meat production took  place in the United States while only the birth 
and minimal raising of the animal occurred in Mexico."13  Japan agrees with this Mexico's view to 
some extent.  As long as the objective of the COOL measure is to provide US consumers with three 
specific pieces of information about where the so urce animals were (1) born, (2) raised, and (3) 
slaughtered, Label B "Product of US and Country X" and Label C "Product of Country X and U.S." 
would not be able to provide US  consumers with information the COOL measure intends to provide 
unless further and specified information were added to these Labels.  Only the description "Product of 
US and Mexico" itself  under Label "B" provides US consumer s with no exact information about 
where the source animals were born, raised, and slaughtered.14 
8. Even as to the single-origin labelling for mu scle cuts of meat under the COOL measure, 
Mexico argues that, in addition to the case wh ere the animal sources were born, raised, and 
slaughtered in Country X, and imported into the Un ited States, there are three more cases where Label 
D "Product of Country X" may be used under the COOL measure.15  If so, US consumers would not 
be able to identify the four different cases from Label "D" itself.   
9. However, it should be noted that the multiple-ori gin labelling for muscle cuts of meat such as 
Label "B" and Label "C" may fulfil the other objective of the COOL measure, that is to prevent US 
consumers from being confused with the wrong use of labelling "Product of U.S." for meat products, 
the animal resources of which were actually born a nd raised in a foreign country and immediately 
slaughtered in the United States.16  In this regard, both Label "B" and Label "C" at least inform US 
consumers that muscle cuts of meat labelled with  Label "B" or "C" are different from Label "A" and 
that the source animals were not exclusively born , raised, and slaughtered in the United States. 
However, the COOL measure is still subject to the revi ew as to whether it is not more trade-restrictive 
than necessary to fulfil its legitimate objectives. 
10. As to the labelling rules under the COOL measure  for meat products that are derived from the 
commingling  of various livestock, there exists the flex ibility under the 2009 Final Rule that permits a 
retailer to use either Label "B" or "C" on any combin ation of Label A, B, and C livestock in case that 
they are commingled during a single production day.17  In this regard, Canada argues that "even a 
consumer who ardently wished to purchase meat that went through a particular life-cycle (say 'Canadian-born, U.S.-raised and – slaughtered') wo uld not be able to determine from the Labels 
whether the meat came from such an animal."
 18  As also questioned by the Panel to the United 
States,19 even when 1% of Label A livestock (i.e. born,  raised and slaughtered in the United States) 
and 99% of Label C livestock (e.g. born and raised in Country X and immediately slaughtered in the 
                                                      
13 Mexico's first written submission, para. 301. 
14 It is also noted that, as Mexico also points out , Label "C" may also be used for two occasions under 
the COOL measure; first, where the source animals were born and raised in Mexico, and immediately 
slaughtered in the United States; and second, where they were born in the United States, raised in Mexico, and 
slaughtered in the United States (Mexic o's responses to the Panel's questions from the first substantive meeting, 
para. 188).  If so, US consumers are not able to rec ognize the difference between above two cases from Label 
"C" itself. 
15 Mexico's responses to the Panel's questions from the first substantive meeting, paras. 188-189. 
16 United States' answers to Panel's first set of questions, paras. 100-101,104. 
17 As to the labelling rules for commingling under th e COOL measure, see United States' answers to 
Panel's first set of questions, para. 16; United States ' second written submission, para. 42; Mexico's second 
written submission, para. 47; Mexico's responses to the Panel's questions from the first substantive meeting, 
para. 37. 
18 Canada's second written submission, para. 80. 
19 United States' answers to Panel's first set of questions, para. 48. WT/DS384/R 
WT/DS386/R Page C-60 
 
 
  United States) are commingled in a single producti on day, the meat product based on these livestock 
may still be labelled as Label B "Product of US and Country X".  In this case, while 99% of meat 
products are actually based on cattle born and raised in Country X, the name of the United States may 
come first under Label "B".20  In this regard, according to the United States, "a consumer [in the 
United States] is likely to believe that the meat is most closely affiliated with the name of the country 
that appears first on the label".21  As already explained above, we ra ise a question to the Panel whether 
such consumers' perception is not sufficient for the Pa nel to reach a conclusion.  In addition to this, if 
the United States measures are designed to misguide US consumers who act on such a perception, Japan is of the view that the COOL measure is more  likely not to fulfil the objective of preventing US 
consumer confusion to this extent.   
11. Moreover, there is no disagreement that there are two cases where Label "B" may be used; 
first, for muscle cuts of meat
22; and second, for meat products that are derived from the commingling 
of any combination between Label A, B, and C lives tock.  Japan agrees with Canada, Mexico and the 
EU that US consumers are not able to identify which case the meat products labelled with Label B 
actually indicate without further information.  
12. This concludes our statement today.  We woul d be pleased to respond to any questions that 
the Panel may have. 
                                                      
20 Even when Label B livestock (i.e. born in Country X, and raised and slaughtered in the United 
States) and Label C livestock (e.g. born and raised in Country Y, and immediately slaughtered in the United 
States) are commingled in a single production day, the meat product may also be labelled with Label B, that is 
for example "Product of US and Country X and Country Y". 
21 United States' answers to Panel's first set of questions, para. 118. 
22 When the source animals were born in a foreign country, and raised and slaughtered in the United 
States. WT/DS384/R 
 WT/DS386/R 
Page C-61 
 
 
  ANNEX C-18 
 
EXECUTIVE SUMMARY OF THE  
THIRD PARTY WRITTEN SUBMISSION OF KOREA 
 
 
I. INTRODUCTION 
1. This dispute arises from the United States' rece nt introduction of country-of-origin labelling 
requirements (the "COOL Measure") for certain covered commodities.  The complainants assert that 
the COOL Measure violates various provisions  of the TBT Agreement and the GATT 1994.   
2. As Korea has systemic interests in the interpre tation and application of  various provisions of 
the TBT Agreement and the GATT 1994, it has reserved its third party rights pursuant to Article 10.2 
of the DSU.  Korea appreciates this oppor tunity to present its views to the Panel. 
II. LEGAL ARGUMENTS 
A. THE  COOL  MEASURE  SEEMS  TO BE A SPECIFIC  RESPONSE  TO US CONSUMERS'  
INCREASING  DEMAND  FOR  ACCURATE  COUNTRY  OF ORIGIN  INFORMATION  
FOR  CERTAIN  PRODUCTS 
3. One of the controversial issues raised in this  dispute is whether the COOL Measure is a 
consumer information provision measure or a disg uised protectionist measure to drive out certain 
designated foreign products from the respondent's  market.  Korea notes that a large number of 
Members have respective country of origin labelli ng systems already in place.  The wide permeation 
of the country of origin labelling system may indicate that there is nothing inherently wrong about a 
Member's effort to introduce a measure setting fort h country of origin la belling requirements in 
response to specific demand from its own consumers for such information.  
4. In addition, in this dispute the "likeness" analysis of a product alone may not necessarily 
provide an accurate barometer in determining whether a Member's decision to provide certain 
information to its own consumers is appropriate under the circumstances.  While a "like product" 
analysis usually focuses on the product character istics, a consumer information appropriateness 
inquiry would have to look into the demand and pr eference for certain specific information from a 
distinct group of consumers within a Member's ju risdiction, which may or may not be the same as the 
demand or preference from the group of consumers fro m another Member even though the products at 
issue may be considered "like" in that particular instance.   
B. INCURRENCE  OF "ADDITIONAL  COSTS"  ALONE  MAY  NOT  BE SUFFICIENT  TO 
CONSTITUTE  MODIFICATION  OF "CONDITIONS  OF COMPETITION"  UNDER  
ARTICLE  2.1 OF THE  TBT  AGREEMENT  AND  ARTICLE  III:4  OF THE  GATT 1994 
5. The complainants' main argument in the comp etition-of-condition modification claim pretty 
much hinges on the alleged burden of additional "segrega tion costs" that they have been forced to bear 
as a result of the introduction of the COOL Measur e.  The complainants' first written submissions, 
however, do not seem to have provided sufficient evidence to prove that the US business entities' 
alleged reluctance to trade foreign product can be single-handedly attributed to the alleged 
"segregation costs" attendant to the COOL Measure.   In the course of the future proceedings, the 
Panel would have to look into th e record in this dispute carefully to determine (i) whether other 
factors than additional "segregation costs" contribut ed to the US business en tities' decision to curtail WT/DS384/R 
WT/DS386/R Page C-62 
 
 
  their transactions with the product from the comp lainants; and (ii) if so, whether additional 
"segregation costs" have played a predominant ro le among others in their decision making process. 
6. Likewise, the complainants' claim that the C OOL Measure has caused "drastic reduction of 
commercial opportunities" also warrants an in-depth inquiry from the Panel.  As the complainants 
argue, the "segregation costs" span over various expenditures including costs accruing from 
differentiated inventory and stock controls, traini ng of staff, and time to monitor each product is 
appropriately labelled.  And as complainants seem to agree, these are in fact costs to ensure accuracy  
of the information to be contained in the labe l including information on country of origin.  An 
argument can be made that costs to ensure accuracy  of information may accompany any sort of 
governmental regulation and that such costs may no t be unique characteristics of country of origin 
labelling in general or the COOL Measure in particular. 
C. A
 MEMBER'S  LEGISLATIVE  HISTORY  SHOULD  BE CAREFULLY  EXAMINED  WITH  
A FULL  PICTURE  IN MIND   
7. In order for a panel to accurately discern objectiv es of laws and regulations of a Member, the 
entire spectrum of the discussions on the record s hould be examined and contemplated.  Only then 
could we confirm the existence of protectionist inte nt, if there is any.  Reference to only certain 
chosen statements from industry officials or legi slative members may not be able to convey the 
background and legislative intent accurately. 
8. An important piece of evidence raised in this regard is the letter from the US Secretary of 
Agriculture to the US domestic industry officials.  The exact nature of the US Secretary's letter can 
only be confirmed through a careful scrutiny into the entire situations involving the interactions 
between the US government and US industries at that particular point in time.   
D. A MEMBER  CLAIMING  NULLIFICATION  AND  IMPAIRMENT  UNDER  
ARTICLE XXIII:1( B) OF THE  GATT 1994  IS REQUIRED  TO SHOW  MORE  THAN  MERE  
COMMERCIAL  LOSS  AS A RESULT  OF INTRODUCTION  OF A MEASURE 
9. Korea submits that the nullification and impairment provision contained in Article XXIII:1(b) 
of the GATT 1994 is not intended to protect business entities of other WTO Members from all 
instances of commercial loss.  Thus, in EC – Asbestos the Appellate Body stated that "the remedy in 
Article XXIII:1(b) should be approached with caution  and should remain an exceptional remedy ."1   
10. As such, the Appellate Body precedents make clear  that this is an exceptional remedy that can 
be considered only in exceptional situations in wh ich a Member's legitimate  expectation of benefit 
from a trade agreement has been seriously harmed because of a measure and the Member were not 
reasonably able to anticipate such a measure at the time of the conclusion of the agreement.  This 
provision therefore should not be expanded to cover all the instan ces of unexpected business loss, 
foregone commercial opportunities or deteriorating business performance of entities of a Member in 
the domestic market of another Member.  
11. The questions posed in this dispute, therefore, are whether the alleged harm is so severe that a 
drastic remedy under Article XXIII:1(b) of the GA TT 1994 is warranted and whether complainants 
could not have reasonably anticipated the COOL Measures at the time the tariff concessions were 
negotiated during the Uruguay Round.  These questions  merit the Panel's careful examination of the 
factual record and consideration of the parties' arguments. 
                                                      
1 Appellate Body Report, EC – Asbestos , at para. 186. (emphasis added). WT/DS384/R 
 WT/DS386/R 
Page C-63 
 
 
  ANNEX C-19 
 
THIRD PARTY ORAL STATEMENT OF KOREA  
AT THE FIRST SUBSTANTIVE MEETING 
 
 1. Mr. Chairman and members of the Panel. The Republic of Korea ("Korea") appreciates this 
opportunity to present its views on the key issues included in Korea's third party submission. 
A. T
HE COOL  MEASURE SEEMS TO BE A SPECIFIC RESPONSE TO US CONSUMERS ' DEMAND FOR 
ACCURATE COUNTRY OF ORIGIN INFORMATION FOR CERTAIN PRODUCTS  
2. The core controversial issue raised in this dispute is whether the COOL Measure is an 
appropriate consumer information provision measure or a disguised pr otectionist measure to drive out 
certain designated foreign products from the res pondent's market.  Korea would like to offer two 
observations concerning this issue.  Korea first notes that a large number of Members have respective 
country of origin labelling systems already in place.   The wide permeation of the country of origin 
labelling system may indicate that there is nothi ng wrong about a Member's effort to introduce a 
measure setting forth country of origin labelling re quirements in response to specific demand from its 
own consumers for such information.  Korea further notes that in this dispute the "likeness" analysis 
of a product alone may not necessarily provide an  accurate barometer to determine whether a 
Member's decision to provide certain information to its own consumers is  appropriate under the 
circumstances.  
B. INCURRENCE OF "ADDITIONAL COSTS " ALONE MAY NOT BE SUFFICIENT TO CONSTITUTE 
MODIFICATION OF "CONDITIONS OF COMPETITION"  UNDER ARTICLE  2.1 OF 
TBT A GREEMENT AND ARTICLE  III:4  OF GATT 1994 
3. The complainants argue that the COOL Measure  modifies "conditions of competition" in the 
market.  The complainants' main argument in th e competition-of-condition modification claim pretty 
much hinges on the alleged burden of additional "segregation costs" that they have been forced to bear 
as a result of the introduction of the COOL Measur e.  Korea notes discrepancy in parties' factual 
accounts in this regard.  In Korea's view, in the course of the first substantive meeting, the Panel 
would have to look into the record in this dispute carefully to determine (i) whether other factors than 
additional "segregation costs" contributed to th e US business entities' decision to curtail their 
transactions with the product from the complainants; and (ii) if so, whether additional "segregation 
costs" have played a predominant role am ong others in their decision making process. 
4. Likewise, in our view much of the costs menti oned by the complainants seem to be in fact 
costs to ensure accuracy  of the information to be contained in the label including information on 
country of origin.  An argument can  be made that costs to ensure accuracy  of information may 
accompany any sort of governmental regulation and that such costs may not be unique characteristics 
of country of origin labelling in genera l or the COOL Measure in particular. 
C. A MEMBER 'S LEGISLATIVE HISTORY SHOULD BE CAREFULLY EXAMINED WITH A FULL 
PICTURE IN MIND  
5. Next, Korea would like to draw the Panel's at tention to the importance of considering the 
entire evidence on the record in exploring objectives of  laws and regulations of a Member.  Only then 
could the Panel confirm the existence of protectionist  intent, if there is any.  The Panel should be 
mindful that reference to only certain chosen statem ents from industry officials or legislative members 
may not be able to convey the background and legisla tive intent accurately.  The controversial letter WT/DS384/R 
WT/DS386/R Page C-64 
 
 
  from the US Secretary of Agricultu re to the US domestic industry officials should also be put into 
proper perspective.  Mere communication with th e industry officials through an "open letter" and 
remarks on the possibility of exercising statutory au thority may not necessarily turn the letter into a 
document issuing mandatory requirements. 
D. A
 MEMBER CLAIMING NULLIFICA TION AND IMPAIRMENT UNDER ARTICLE  XXIII:1( B) OF THE 
GATT 1994  IS REQUIRED TO SHOW MORE THAN ME RE COMMERCIAL LOSS AS A RESULT OF 
THE INTRODUCTION OF A MEASURE  
6. As regards the nullification and impairment cl aim, Korea submits that the nullification and 
impairment provision contained in  Article XXIII:1(b) of the GATT 1994 is not intended to protect 
business entities of WTO Members from all instances of commercial loss.  We note that the Appellate 
Body precedents make clear that this is indeed an  exceptional remedy that can be considered only in 
exceptional situations in which a Member's legitim ate expectation of benefit from a trade agreement 
has been seriously harmed because of a measure and the Member were not reasonably able to 
anticipate such a measure at the time of the conc lusion of the agreement.  This provision therefore 
should not be expanded to cover all instances of  unexpected business loss, foregone commercial 
opportunities or deteriorating business performance of entities of a Member in the domestic market of another Member.  
7. Mr. Chairman and members of the Panel, Korea realizes that determination of these issues 
much depends on the development and clarification of factual issues to be made through the present 
substantive meeting of the Panel.  Korea respectfu lly requests the Panel to discharge its obligation 
under Article 11 of the DSU by reviewing the f acts on the record carefully and by applying 
appropriate jurisprudence. 
8. Korea again thanks the Panel for the opportuni ty to present its views in this proceeding. 
 WT/DS384/R 
 WT/DS386/R 
Page C-65 
 
 
 
 ANNEX C-20 
 
EXECUTIVE SUMMARY OF THE 
THIRD PARTY WRITTEN SUBMISSION OF NEW ZEALAND 
 
 
I. INTRODUCTION 
1. New Zealand's participation as a Third Party in th is dispute reflects both its interest in the 
systemic legal issues arising from the country of  origin labelling (COOL) measure, and its trade 
interest in the United States beef market. As  an agricultural exporting nation, the proper 
implementation of the WTO Agreement on Technical Barriers to Trade (the TBT Agreement) is of 
fundamental importance to New Zealand.  
II. THE TBT AGREEMENT 
A. GENERAL  
2. New Zealand recognizes the rights of WTO Memb ers to take measures necessary to ensure, 
inter alia , the protection of human, plant, or animal health, the environment, or for the prevention of 
deceptive practices, at the levels they consider a ppropriate. However, any such measures are subject 
to the disciplines of the WTO Agr eements. With respect to technical regulations and standards, and 
procedures for assessment of conformity with techni cal regulations and standards, New Zealand notes 
the particular importance the TBT Agreement place s on ensuring that such measures do not create 
unnecessary obstacles to trade. The United States' C OOL measure raises several questions regarding 
compliance with the provisions of the TBT Agreement. 
B. WHETHER THE VILSACK LETTER IS A TECHNICAL REGULATION  
3. Canada and Mexico claim that an open letter fro m the United States' Secretary of Agriculture, 
Thomas J. Vilsack, to industry representatives dated 20 February 2009 (the "Vilsack letter"), and a 
related press release, constitute a technical regulation within the meaning of Annex 1.1 of the 
TBT Agreement. The letter suggests that industry "voluntarily adopt" certain labelling practices in 
addition to those required in regulations. To determ ine that the Vilsack letter constitutes a technical 
regulation within the meaning of Annex 1.1, the Pane l will have to find that compliance with the letter 
is mandatory. This raises the question  whether comp liance is required to be mandatory on the face of 
the document, or whether it can also be deemed de facto mandatory due to surrounding circumstances.  
4. New Zealand takes the view that Annex 1.1 does not exclude the possibility of a measure 
being deemed a technical regulation even though compliance with it is not mandatory on its face . It is 
important to recognize this possibility in order to prevent WTO Members from circumventing their obligations under the TBT Agreement by designi ng measures that appear on their face to be 
voluntary, but are in fact mandatory.   
5. New Zealand recognizes, however, that the Panel should not make such a finding lightly. To 
do so would risk rendering null and void the inte nded distinction between mandatory technical 
regulations and voluntary standards provided for in the TBT Agreement. To find a technical 
regulation de facto mandatory, there must be some factor present in the nature of the document and its 
surrounding context that is sufficient to transform th e measure from one that is intended to be adhered 
to on a voluntary basis to one that is truly compulsory. New Zealand submits that a measure should only be deemed de facto mandatory where industry or other market  participants have no real choice as WT/DS384/R 
WT/DS386/R Page C-66 
 
 
  to whether or not to comply. The Panel must be sa tisfied that the practices are in effect compulsory 
and that this is due to the exertion of Government power.  
C. A
RTICLE  2.1:  LESS FAVOURABLE TREATMENT OF LIKE PRODUCTS  
6. Article 2.1 of the TBT Agreement obliges WTO Members to accord imported products 
"treatment no less favourable than that accorded to like products of national origin." In accordance 
with jurisprudence on Article III:4 of  GATT, New Zealand submits that de facto  as well as de jure  
discrimination falls within the scope of the "less favourable treatment" obligation.1 As the Appellate 
Body has stated, the focus should be on whether a measure "modifies the conditions of competition in 
the relevant market to the detriment of imported products."2 New Zealand submits that even though 
the COOL measure is "facially neutral",3 the measure could still result in less favourable treatment. 
7. At issue in the dispute is whether any detrim ent to imported products is the result of the 
COOL measure, or whether it is due to market-driven private actions . This issue is raised particularly 
in the context of the additional costs of segregati ng animals of different origin throughout the supply 
chain. New Zealand accepts that there is no violation of Article 2.1 where market-driven practices of 
private entities result in detriment to imports. Howe ver, New Zealand submits that even if a measure 
does not expressly require private actors to act in a certain way, government actions may have created 
a situation that compels private actors to act in that way because of the "necessity of making a 
choice". 4 In New Zealand's view, such compulsion could be found to violate the less favourable 
treatment obligation, if it results in domestic like products being given a competitive advantage in the 
market over imported like products. This will be a matte r for the Panel to determine on the facts of the 
dispute.  
D. ARTICLE  2.2:  IS THE COOL  MEASURE MORE TRADE RE STRICTIVE THAN NECESSARY ? 
8. Article 2.2 and the Preamble of the TBT Agreement affirm the rights of WTO Members to 
decide which policy objectives they wish to pursue and the levels at which they wish to pursue them. 
However, it also places limits on the means empl oyed to achieve those objectives: they must be 
consistent with a Member's oblig ations under the Agreement.  
9. New Zealand submits that there are three step s in assessing compliance with Article 2.2: (i) 
there must be a legitimate objective; (ii) if the purported objective is found to be legitimate, the 
measure must also fulfil this objective; and (iii)  the Panel should consider whether the technical 
regulation is more trade restrictive than necessary to fulfil the objective, taking into account the risks 
non fulfilment would create.  
1. Is there a legitimate objective? 
10. The United States claims that the legitimate obj ective of the COOL measure is to provide 
consumer information.  
11. Article 2.2 provides an illustrative list of legitim ate objectives. As the list in Article 2.2 is 
non-exhaustive, New Zealand recognizes that a Me mber may demonstrate that other legitimate 
objectives also justify technical regulations. Howeve r, New Zealand notes that in the context of a 
                                                      
1 Appellate Body Report, Canada – Autos , para. 57. 
2 Appellate Body Report, Korea – Various Measures on Beef , para. 137. 
3 United States' first written submission, para. 144. 
4 Canada's first written submission, pa ra. 90, citing the GATT Panel Report, US – Section 337 Tariff 
Act, para. 5.11. WT/DS384/R 
 WT/DS386/R 
Page C-67 
 
 
 
 WTO dispute, a panel has a role to play in dete rmining whether a given objective is legitimate, in 
light of the context and circumstances of the case. New Zealand submits that, where a purported objective is not listed in Article 2.2, a WTO Member  must provide particularly clear and compelling 
evidence of its legitimacy.  
12. New Zealand takes no position as to whether there is a legitimate objective at play in this 
dispute. However, in light of the United States' ar gument that the COOL measure is also required "so 
as to reduce consumer confusion", New Zealand comme nts on the distinction between the concepts of 
consumer information and deceptive practices. 
13. New Zealand submits that an important distin ction should be drawn between the objective of 
consumer information and that of preventing decepti ve practices. While consumer information can be 
a tool through which a Member seeks to counter or prevent deceptive practices, the prevention of 
deceptive practices is a narrower concept. This interpretation is supported by the context of 
Article 2.2. The other legitimate objectives that ar e provided as examples in Article 2.2 are potentially 
of a particularly important or high-risk nature. Th e nature of these objectives should therefore colour 
the interpretation of the objective of preventing decep tive practices, which is included alongside them.  
2. Does the technical regulation fulfil the legitimate objective? 
14. In the event that the Panel considers that c onsumer information does constitute a legitimate 
objective on the facts of this dispute, the next el ement to consider is whether the COOL measure 
fulfils this objective. The respondent must de monstrate why the COOL measure is necessary for 
consumer information purposes, a nd explain how it will influen ce consumer purchasing decisions. 
The design and structure of a measure will be ess ential in determining whether the objective is 
fulfilled. For example, the Panel may find it helpful to  consider whether there are any arbitrary gaps in 
coverage of the COOL measure and also whether in formation conveyed to consumers is accurate and 
useful. 
3. Whether the technical regulation is more tr ade restrictive than necessary to fulfil the 
objective, taking into account th e risks non fulfilment would create 
15. The final determination in assessing whether a m easure is consistent with Article 2.2 is 
whether the technical regulation is more trade re strictive than necessary to fulfil the legitimate 
objective, taking into account the risks non-fulfilment would create.  
16. In considering whether a measure is necessary, New Zealand refers to the Appellate Body's 
guidance in Brazil – Tyres
5 on the necessity test under Article XX(b) of the GATT. New Zealand 
submits that, as identified in Brazil – Tyres,  the Panel should consider the importance of the interests 
or values at stake.6 Such a consideration is pertinent to th e Article 2.2 requirement that a Member 
must bear in mind "the risks non-fulfilment would create". In New Zealand's view, where the importance of the interest or value is higher, the risks from non-fulfilment must weigh more heavily in 
the consideration. As discussed above, New Zealand considers that, in identifying specific legitimate 
objectives in Article 2.2, the TBT Agreement recognizes the particular importance of the interests or 
values behind these objectives. The ri sks of non-fulfilment would therefore justify more restrictive 
measures being taken when those objectives are at stake.  
                                                      
5 Appellate Body Report, Brazil –Retreaded Tyres . 
6 Ibid.,  at para. 178. WT/DS384/R 
WT/DS386/R Page C-68 
 
 
  17. Finally, in determining whether a measure is ne cessary, the Panel must consider whether less 
trade restrictive options exist. In the context of ma ndatory COOL, particular attention should be paid 
to the alternative of a voluntary scheme. This is particularly so where there is no health or safety 
justification behind the regulation. Voluntary COOL has the ability to provide the same information to 
the consumer, where there is the consumer demand for such information.  
E. T
HE EXISTENCE OF A RELEVANT  INTERNATIONAL STANDARD UNDER ARTICLE  2.4 
18. The TBT Agreement does not define the te rm "international standard". However, 
New Zealand considers that, to cons titute an international standard unde r Article 2.4, a standard must 
be a document approved by a recognized body, such  body being an international standardizing body 
within the definition provided by the ISO/IEC Guide 2:1991, and whose membership is open to the 
relevant bodies of at least all WTO Members. 7  
19. New Zealand submits that the Codex Alimenta rius Commission is a "recognized body" for 
the purposes of Annex 1.2 of the TBT Agreement and that CODEX-STAN 1-1985 is an international 
standard within the context of Article 2.4. The Codex Alimentarius Commission meets the principles 
of transparency, openness, impartiality, effectivenes s and relevance and coherence set out by the TBT 
Committee in relation to interna tional standardising bodies.  
III. THE GATT 1994 
A. ARTICLE  III:4:  LESS FAVOURABLE TREATMENT  
20. New Zealand refers to its arguments in respect of Article 2.1 of the TBT Agreement and notes 
that the same considerations will apply with respect to GATT Article III.4. 
B. ARTICLE  X: UNIFORM , IMPARTIAL AND REASONABLE ADM INISTRATION OF REGULATIONS  
21. GATT Article X:3(a) provides that Members must "administer in a uniform, impartial and 
reasonable manner all its laws, regulations, decision s and rulings".  In assessing Canada and Mexico's 
claims in respect of Article X:3(a), the Panel mu st distinguish between the measure itself and its 
administration . The Appellate Body has emphasized that Article X:3 applies solely to the 
administration of laws, regulations, decisions and rulings.8  
22. Article X.3 is important as it recognizes that  matters of governance, including uniform and 
reasonable administration of laws and regulations, can have just as significant a trade restrictive effect 
as border measures and domestic regulations. A claim under this provision ought therefore to be taken 
seriously. However, New Zealand recognizes that a cer tain amount of caution in the interpretation of 
the scope of this provision is desirable, given the pot entially intrusive nature of a determination that a 
Member has violated Article X.3(a). Allegations that the conduct of a WTO Member is unreasonable 
are serious, and should not be taken lightly.9 Therefore in reaching a decision on the facts, the Panel 
ought to seek a balance between the promotion of good governance and trade liberalisation, while 
recognizing that countries do have very different sy stems of administration of laws and not every 
difference or difficulty faced by traders ought to result in a finding of violation of Article X.3(a). 
                                                      
7 Decision on Principles for the Development of International Stan dards, Guides and 
Recommendations with Relation to Articles 2, 5 and Annex 3 of the TBT Agreement, G/TBT/9, 13 November 
2000, para. 20 and Annex 4. 
8 Appellate Body Report, EC – Bananas III , para. 200. 
9 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 217. WT/DS384/R 
 WT/DS386/R 
Page C-69 
 
 
 ANNEX C-21 
 
THIRD PARTY ORAL STATEMENT OF NEW ZEALAND 
AT THE FIRST SUBSTANTIVE MEETING 
 
 1. Mr Chairman, Members of the Panel, New Zealand's views on the issues raised in this dispute 
are set out in our third party submission of 18 August. In light of the time available today, I will focus 
on only a few key issues. As with our written subm ission, New Zealand is not seeking to address the 
specific facts of the case, but rather seeks to provide the panel with its views on the legal 
interpretation of various relevant aspects of the TBT Agreement and the GATT. 
2. New Zealand joined this dispute because of its syst emic interests, and desire to ensure that the 
delicate balance of rights and obligations set  out in the WTO Agreements, especially the 
TBT Agreement, is maintained. New Zealand also has a trade interest in the dispute, given its pattern 
of beef exports into the US market. 
3. First , turning to the threshold issue of whether the letter from the Secretary of Agriculture, 
Thomas Vilsack, constitutes a technical regulation u nder the TBT Agreement. A key question in this 
regard is whether compliance with the letter is 'man datory', within the meaning of Annex 1.1 of the 
TBT Agreement. In essence, the question is whet her on the face of the document compliance is 
required, or whether compliance can be d eemed to be mandatory given the surrounding 
circumstances.  
4. New Zealand's view is that Annex 1.1 does not  exclude the possibility of a measure being 
deemed a technical regulation even though co mpliance with it is not mandatory on its face . It is 
important to recognize this possibility in order to prevent WTO Members from circumventing their TBT obligations by designing measures that appear on their face to be voluntary, but that are in fact 
mandatory.  In other words, it is New Zealand's view  that the Panel should allow for the possibility of 
a measure being de facto mandatory. 
5. New Zealand recognizes, however, that such a finding should not be made lightly. To do so 
would risk rendering null and void the TBT Agre ement's intended distinc tion between mandatory 
technical regulations and voluntary standards. The Ag reement contains different sets of obligations in 
respect of mandatory regulations and voluntary st andards. New Zealand submits that a measure 
should only be deemed de facto mandatory where industry or other ma rket participants have no real 
choice as to whether or not to comply. The Panel mu st be satisfied that the practices are in effect 
compulsory and that this is in some way a result of the exercise of Government power.  
6. Second , New Zealand submits that similar consider ations should be take n into account under 
Article 2.1 of the TBT Agreement and Article III.4 of the GATT, when determining whether a 
measure modifies the conditions of competition to the detriment of importe d products. New Zealand 
submits that even if a measure, on its face, does not  require private actors to act in a certain way, 
government actions may create a situation where pr ivate actors are compelled to act in that way 
because of a "necessity of making a choice." In New Zealand's view, such compulsion could be found to violate the no less favourable treatment obligat ion in the TBT Agreement and GATT. This would 
be the case if it results in domestic like products being given a competitive advantage in the market 
over imported like products. 
7. Third , New Zealand would also like to comment on Article 2.2 of the TBT Agreement. The 
Preamble and Article 2.2 of the TBT Agreement make clear the right of  WTO Members to take 
measures to advance domestic policy, including to pursue national security purposes, to prevent WT/DS384/R 
WT/DS386/R Page C-70 
 
 
  deceptive practices, and to protect human health or  safety, animal plant life or health or the 
environment. However, in adopting measures to  achieve these ends, WTO Members must comply 
with the disciplines of the TBT Agreement. These are designed to ensure that TBT measures are 
legitimate and are not more trad e restrictive than necessary.  
8. As you are aware, in this dispute the United States has put forward consumer information as 
its legitimate objective. This is not a legitimate obj ective listed in Article 2.2 of the TBT Agreement. 
New Zealand recognizes that a WTO Member may demonstrate that other legitimate objectives do exist, beyond those listed in Article 2.2. However,  New Zealand submits that where an objective is 
not listed in Article 2.2, a WTO Member must provide particularly clear and compelling evidence of 
its legitimacy.  
9. In the event the Panel accepts that consum er information does amount to a legitimate 
objective on the facts of the dispute, the Panel shoul d next consider whether the technical regulation 
fulfils this legitimate objective. In asking whethe r this is the case on the facts in this dispute, 
New Zealand submits that the Panel should consider the consistency of covera ge of the goods subject 
to the COOL requirement, as well as the accuracy, clarity and usefulness of the information obtained 
by consumers.  
10. The final step in the assessment of whether there has been a violation of Article 2.2 is whether 
the measure is more trade restrictive than n ecessary, taking into account the risks non-fulfilment 
would create. As part of determining whether a measu re is necessary, the Panel must consider whether 
less trade restrictive alternatives exist. New Z ealand would like to emphasise the relevance of 
voluntary country of origin labelling as an alterna tive to a mandatory regime, particularly where a 
consumer information objective is concerned. Voluntary COOL has the ability to provide the same 
information to the consumer, where there is the consumer demand for such information. It is 
responsive to market demand as opposed to creati ng or distorting the market. Voluntary COOL 
therefore allows the design and operation of the la belling system to be developed in response to 
supply and demand needs. As such, it is a relevant alternative to mandatory COOL, particularly where 
there is no compelling evidence of market failure.  
11. Finally , New Zealand would like to provide a general comment on Article X.3 of GATT. 
Article X.3 importantly recognizes that matters of  governance, including the uniform and reasonable 
administration of laws and regulations, can have just as significant a trade restrictive effect as border measures and domestic regulations. Traditionally, trad e barriers were imposed at the border in the 
form of tariffs or quotas. As thes e barriers were brought down, behinC -the-border barriers in the form 
of technical regulations and the like gained promin ence. It was recognized by the negotiators of the 
GATT in the 1940s that administration could also form  a trade barrier. However, for a long time, not a 
lot of attention was paid to Article X. Since 1994 it has become an increasing area of focus for WTO 
Members, and New Zealand wishes to emphasize the importance of the discipline and development of 
jurisprudence with respect to it. 
12. New Zealand does however recognize the potentially intrusive nature of a determination that 
a Member has violated Article X.3(a). Allega tions that the conduct of a WTO Member is 
unreasonable are serious, and should not be taken lightly. New Zealand therefore submits that, in 
reaching a decision on the facts, it is necessary to  seek a balance between the promotion of good 
governance and trade liberalisation, while recognizi ng that countries have different administrative 
systems and not every difference or difficulty faced by  traders should result in a finding of a violation 
of Article X.3(a). WT/DS384/R 
 WT/DS386/R 
Page C-71 
 
 
 13. With respect to the Panel's question regardi ng any mandatory country of origin labelling 
requirements in place in third parties, we have pass ed the request back to capital and would be pleased 
to provide a response in writing in due course.  
14. Mr Chairman, members of the Panel, New Zeala nd respectfully thanks you for your attention. 
 WT/DS384/R 
WT/DS386/R Page C-72 
 
 
  ANNEX C-22 
 
THIRD PARTY ORAL STATEMENT OF NEW ZEALAND 
AT THE SECOND SUBSTANTIVE MEETING 
 
 1. Mr Chairman, Members of the Panel. New Zealand appreciates the opportunity to be present 
at this second hearing and to be able to make a br ief oral statement in acco rdance with the enhanced 
rights third parties have been granted in this disput e. Access to this open hearing, and the opportunity 
to receive the Parties' second written submissions im proves the ability of third parties to be able to 
follow and meaningfully participate in the dispute. 
2. Having read Canada, Mexico and the United States' second written submissions, 
New Zealand wishes to focus its comments today on the interpretation of Article 2.2 of the 
TBT Agreement. More specifically, we wish to comment on the relevance of Article 5.6 of the 
SPS Agreement and Article XX of GATT in determin ing whether, under Article 2.2, a measure is 
more trade restrictive than necessary, taking account  of the risks non-fulfilment would create.   
I. GATT ARTICLE XX (B) AND (D) 
3. In its written submission and replies to questions  from the Panel following the first hearing, 
New Zealand expressed its view that the jurispr udence concerning the necessity requirement under 
GATT Articles XX(b) and (d) is relevant to the determina tion under Article 2.2 of the 
TBT Agreement. Recent jurisprudence around the Article XX necessity test is particularly pertinent in 
light of the Article 2.2 requirement to take acc ount of the "risks of non-fulfilment". New Zealand 
considers that Article 2.2 requires balancing factors such as the interests and values at stake (that is, 
the importance of the objective and, as a corollary , the risks that non-fulfilment would create), the 
contribution of the measure to the achievement of the objective and the degree of trade-restrictiveness 
of the measure. This is similar to the 3-way we ighing and balancing exercise that panels and the 
Appellate Body have undertaken when dete rmining if a measure is "necessary" under GATT 
Article XX(b).  
II. SPS ARTICLE 5.6  
4. In its written statement and replies to the Pane l's questions, New Zealand also explained that 
many, but not all, elements of Article 5.6 of the SPS Agreement and its jurisprudence are relevant to 
interpreting Article 2.2 of the TBT Agreement. Beca use of the important differences in language in 
the two provisions, interpreters of the agreements should be careful not to read in specific phrases 
and/or additional requirements that are not present in  Article 2.2, but which are explicit in Article 5.6 
5. In addition to the points made in its written submission and replies to questions, New Zealand 
would like to comment on another important differen ce between Articles 2.2 and 5.6. This is that 
unlike Article 5.6, Article 2.2 does not refer to the concept of "appropriate level of protection". 
Instead, Article 2.2 refers to fulfilment of a legitim ate objective. This difference is important because 
the SPS Agreement makes clear that Members have th e right to set their own "appropriate level of 
protection", although measures must still take in to account scientific evidence and other prescribed 
factors. However, a similar level of Member discretion is not present in Article 2.2 of the TBT Agreement, where a panel has a clear role in  determining both whether the stated objective is 
legitimate and whether the measure fulfils such objec tive. Neither the concept of "appropriate level of 
protection" nor the important additional SPS Agre ement requirements around science are included 
elsewhere in the text to ensure that a Member's discretion to determine what  is "appropriate" is not 
used as a disguised restriction on trade. WT/DS384/R 
 WT/DS386/R 
Page C-73 
 
 
 6. New Zealand recognizes that the Preamble to th e TBT Agreement refers to Members taking 
measures "at the levels [they] consider appropriate".  However this discretion relates to measures taken 
in the pursuit of a specific list of  objectives. Furthermore, the cont ent of a preamble to a treaty does 
not comprise an independent obligation in and of itself. Instead, under Article 31(2) of the Vienna 
Convention on the Law of Treaties, it provides releva nt context particularly when determining the 
object and purpose of the rest of the text.  New Zealand therefore considers that a panel should be 
careful when looking to add to rights and obligations  in the main text of the TBT Agreement based on 
language found only in the preamble.  
7. In sum, there are clear similarities between th e tests in Article 2.2 of the TBT Agreement, 
Article 5.6 of the SPS Agreement and Article XX of the GATT. There are also key differences. It is 
appropriate for a panel to look to the requireme nts and jurisprudence under all three articles, but 
panels must be conscious, and cautious, of the differences. 
8. Mr Chairman, Members of the Panel, New Zeal and respectfully thanks you for your attention. 
  WT/DS384/R 
WT/DS386/R 
Page C-74 
  
  ANNEX C-23 
 
THIRD PARTY ORAL STATEMENT OF PERU 
AT THE FIRST SUBSTANTIVE MEETING
1 
 
 1. Mr. Chairman, distinguished Members of the Panel, representatives of the parties and third 
parties, Peru welcomes this op portunity granted by the Panel to present its views on the dispute 
between Canada and Mexico, on the one hand, and the United States (US), on the other, with respect 
to certain Country of Origin Labelling (COOL) requirements.
2 
2. Peru's participation as a third part y to this dispute is based on a systemic interest related to the 
proper interpretation and application of the provi sions of the agreements of the World Trade 
Organization (WTO), particularly the Agreement on Technical Barriers to Trade (TBT), considering the importance of the legal debate  raised by Canada and Mexico. 
3. In our view, the claims submitted by Canada and Mexico are very similar as both Members 
claim that the mandatory provisions of the COOL me asure are contrary to Articles 2.1, 2.2 of the 
TBT Agreement, Article III: 4, X and XXIII of  the General Agreement on Tariffs and Trade 
(GATT 1994). In addition, Mexico makes a reference to Articles 2.4 and 12.1 and 12.3 of the TBT Agreement. 
4. Firstly, we would like to refer to the main ar gument outlined by the US  which seeks to justify 
the alleged compatibility of its measures with the articles mentioned in the preceding paragraph. The 
US bases such measures on the right to information for consumers and, therefore, totally rejects that 
COOL is a protectionist measure. 
5. In this regard, Peru considers that providing better information to  consumers is be neficial as it 
provides them with the necessary tools to make info rmed decisions about the products they are going 
to buy. However, Peru would like to draw atten tion to its concerns about the implementation of 
compulsory labelling schemes in different countries wh ich, as has been raised by Canada and Mexico, 
might not be used properly and could become trade-restrictive measures. 
6. Secondly, Peru would like to refer to the suppos itions of Article 2.2 of the TBT Agreement, 
which establishes the analysis to be  followed to determine whether a technical regulation is contrary 
to the TBT Agreement: First, the panel must veri fy whether the objective pursued by the technical 
regulation is legitimate. Secondly, if  it is determined that it is a leg itimate objective, it will have to be 
determined whether the technical regulation rest ricts trade more than necessary to achieve that 
legitimate objective, taking into account the risks non-fulfilment would create. 
7. In this regard, we believe that the panel has th e special task to determine if the basis outlined 
by the US, providing information to consumers, is a legitimate objective within the scope of 
Article 2.2 of the TBT Agreement, and particularly if it does not restrict trade more than necessary to 
achieve the legitimate objective pursued, taking into  account the arguments provided by Canada and 
Mexico. 
8. Furthermore, Mexico argues that the measure is inconsistent with Article 2.4 of the 
TBT Agreement, because an international standa rd (CODEX-STAN 1-1985) already exists on which 
                                                      
1 This oral statement was originally made in Spanish. 
2 The measures that are included on the mandatory provisions of the COOL measure are established in 
Mexico's first written submission in para. 9, and in para. 1, footnote 1, in Canada's submission. WT/DS384/R 
 WT/DS386/R 
Page C-75 
  
 the US should base its measure. However, the US argu es that it would be inappropriate to apply this 
standard as it would not allow the legitimate objectiv es pursued to be fulfilled given that it would not 
provide consumers with information on the origin of meat, and it is in this way that the US justifies 
the non-application of the international measure. 
9. Peru understands that when there are rele vant international standards such as 
CODEX STAN 1-1985, Standard for the Labelling of Pre-packaged foods, Members shall use such 
standards or relevant parts as a basis for technical regulations, unless such international standards are 
not effective or appropriate for achieving the d esired objectives. In other words, international 
standards should always be used in the formulati on of technical regulations. The reference to "the 
basis" of Article 2.4 allows each Member to adapt th is international standard to their reality or their 
particular circumstances, but not to alter the object ives and substance of the international standard in 
question. 
10. It should be noted that Article 2.4 provides fo r an exception, when it says: "... except when 
such international standards or relevant parts woul d be an ineffective or inappropriate means for the 
fulfilment of the legitimate objectives pursued ...." In  that sense, if despite the existence of an 
international standard, the Member considers that it is not an effective or appropriate means for 
achieving the desired objectives, the Member must explain why the international standard does not 
permit the desired objectives to be achieved. The question that therefore arises is whether the 
CODEX STAN 1-1985, is an effective and appropria te means for achieving the objectives pursued by 
the US. 
11. In this regard, our interest is that the panel s hould address this issue in depth so as to interpret 
the scope of this provision, especially with regard to the term "ineffective or inappropriate standard" 
to try to identify the type of elements that w ould permit non-implementation by a Member of this 
international standard and not jus tify non-application of the standard simply by stating that it is 
ineffective or inappropriate for the ach ievement of the legitimate objective. 
12. Finally, along these lines, and considering the sy stemic interest expressed by several Member 
Countries in this dispute, we would like to submit that a very important element is the means of 
implementing the recommendation of the panel th at we understand must obvi ously begin from the 
assumption of the existence of a violation of multila teral commitments and therefore the formula must 
be fully compatible with them. That is, if th e arguments outlined by Canada and Mexico on the 
incompatibility of the measure with the TBT Ag reement are accepted, the panel report must be 
implemented through a measure which is comp atible with the Multilateral Agreements. 
13. These are the elements that Peru would like to contribute to this debate, as well as underlining 
the importance of this controversy due  to its content, its scope and its  implications for market access. 
14. Finally, and regarding the panel's question on mandatory country of origin labelling schemes, 
Peru has identified among its Technical Regulations , a mandatory scheme of labelling of country of 
origin. This is the Supreme Decree 019-2005-PR ODUCE, Technical Regulations on tires for cars, 
light trucks, buses and trucks,  notified to the WT O through document G/TBT/N/PER/7 (dated 5 July 
2004), which establishes mandatory technical featur es and labelling for new tires for general use on 
cars, light trucks, buses and trucks, whether domesti c or imported, in order that their use does not 
endanger life and personal safety. 
15. To ensure compliance, domestic manufacturers or importers must submit a Certificate of 
Conformity, the requirements and tests established in the regulations, including the requirement for 
country of origin labelling. To fulfil this require ment, the country of origin must be stamped or 
engraved in the tires, at least on one side, in a clear, visible and permanent manner, in Spanish or WT/DS384/R 
WT/DS386/R 
Page C-76 
  
  English. Under this regulation, country of origin is understood to refer to the country of manufacture 
of the tire and not the country of shipment. 
16. This technical regulation was formulated in th e framework of international standards on the 
subject, among which we can mention the FMVSS
3 109 (49CFR571.109), the FMVSS 119 
(49CFR571.119) and FMVSS 139 (49CFR571.139). 
                                                      
3 Federal Motor Vehicle Safety Standards.