UNITED STATES - CERTAIN COUNTRY OF ORIGIN LABELLING (COOL) REQUIREMENTS COMMUNICATION FROM THE EUROPEAN UNION
Document: COMMUNICATION FROM
Date: 11 December 2015
Document codes: WT/DS384/39; WT/DS386/40
Complainant: Canada
Respondent: U.S.
Third parties: Argentina, Australia, Brazil, China, Colombia, EU, Guatemala, India, Japan, South Korea, Mexico, New Zealand, Peru, Taiwan
Dispute stage: Implementation & Compliance
Agreements cited: Art. 2.1, 2.2, 2.4  Technical Barriers to Trade (TBT)Art. 2, 5, 7  Sanitary and Phytosanitary Measures (SPS)Art. IX:2, IX, X:3(a)  GATT 1994Art. 2(b), 2(c), 2(e), 2(j)  Rules of Origin

UNITED STATES - CERTAIN COUNTRY OF ORIGIN
LABELLING (COOL) REQUIREMENTS
COMMUNICATION FROM THE EUROPEAN UNION
The following communication, dated 9 December 2015, from the delegation of the European Union
to the Chairperson of the Dispute Settlement Body, is circulated at the request of that delegation.

The European Union refers to paragraphs 2.1 to 2.18 of the "Decisions by the Arbitrator" dated
7 December 2015 in United States – Certain Country of Origin Labelling (COOL) Requirements
(Recourse to Article 22.6 of the DSU by the United States) , which address the procedural question
raised by the European Union, namely whether referrals to arbitration under Article 22.6 are done
by the DSB or by the party objecting to the request for authorization to suspend concessions made
pursuant to Article 22.2 of the DSU.
The European Union welcomes the fact that the Arbitration Panel expressly decides to follow the
guidance previously provided by the Appellate Body to the effect that, as a matter of due process
and the proper exercise of its judicial function, and in order to ensure that issues of a fundamental
nature are addressed and disposed of, it was appropriate for the Arbitration Panel to deal with the
issue raised by the European Union.
1
However, we consider that the Arbitration Panel should have provided the European Union, and
any other Members wishing to participate, with an opportunity to make their views known to the
Arbitration Panel. We consider that this was particularly appropriate in this case given that both
parties disagreed with the European Union and rather agreed with each other.
2 The Arbitration
Panel has thus decided without hearing all interested parties, which we believe substantially
diminishes the weight of its decision.
In this respect, we particularly note that the summary of the EU position
3 is very substantially
incomplete insofar as it fails to address the two most salient points. First, there is no discussion of
the relationship between the first sentence of Arti cle 22.6 and the second sentence of Article 22.6,
which begins with the term "However,". Second, the Arbitration Panel relies throughout its analysis
on a supposed distinction between "arbitrations" and "panels"
4 but fails to address the express
terms of Article 22.6, which state clearly that the arbitration is to be conducted "by the original
panel". In referring to this part of the provision, the Arbitration Panel alters to the terms actually
used by the treaty, replacing them with the phrase "by the original panellists".
5 Thus, whilst
professing adherence to the "text" of Article 22.6, 6 the Arbitration Panel's interpretation is, in fact,
not faithful to that text, and in departing from it, provides no explanation. Furthermore, in other
respects, it is not consistent with the customary ru les of interpretation of public international law,
as codified, at least in part, in Articles 31 to 33 of the Vienna Convention.

1 Arbitration Panel Report, paras. 2.6 to 2.7.
2 Arbitration Panel Report, para. 2.9.
3 Arbitration Panel Report, paras. 2.4 to 2.6.
4 For example, Arbitration Panel Report, para. 2.13.
5 Arbitration Panel Report, para. 1.9.
6 Arbitration Panel Report, para. 2.17.
WT/DS384/39 • WT/DS386/40

The European Union disagrees with the substantive analysis and conclusion of the Arbitration Panel
on this point for the reasons set out in our prior communication. 7 We note that it has not had the
benefit of appellate review and we doubt that will occur in this particular case. We further take
note of the fact that the Arbitration Panel bases its conclusion, in this particular case, on the
absence of any disagreement between the parties.
8 At the same time it recognises that this "is a
contentious issue among Members"; 9 that Article 22.6 "does not provide clear guidance"; 10 and
that "a resolution of this issue by Members would be desirable".11
Pending such resolution, either by Members or by the Appellate Body, and given the substantial
legal uncertainty thus persisting, for its part the European Union intends to continue the practice
used in the past in almost all cases. In particular, as complainant, we do not intend to incur the
unnecessary legal risk of withdrawing an Article 22.2 request from the DSB agenda following an
objection from the defendant. Rather, we intend to prefer the legal certainty that results from the
referral to arbitration taking place in the DSB meeting itself, and we respectfully invite other
Members to consider continuing with the same approach.