UNITED STATES – CERTAIN COUNTRY OF ORIGIN LABELLING (COOL) REQUIREMENTS
Document: Joint Request by Canada, Mexico and the United States for a Decision by the DSB
Date: 29 June 2012
Document codes: WT/DS384/15; WT/DS386/14
Complainant: Mexico
Respondent: U.S.
Third parties: Argentina, Australia, Brazil, Canada, China, Colombia, EU, Guatemala, India, Japan, South Korea, New Zealand, Peru, Taiwan
Dispute stage: Implementation & Compliance
Agreements cited: Art. III, X:3(a), IX  GATT 1994Art. 2, 12  Technical Barriers to Trade (TBT)Art. 2, 5, 7  Sanitary and Phytosanitary Measures (SPS)Art. 2  Rules of Origin

UNITED STATES – CERTAIN COUNTRY OF ORIGIN LABELLING (COOL)
REQUIREMENTS

Joint Request by Canada, Mexico and the United States
for a Decision by the DSB

 The following communication, dated 28 June 2012, from the delegations of Canada, Mexico
and the United States to the Chairperson of the Dis pute Settlement Body (DSB), is circulated at the
request of those delegations.

On 5 January 2012, the Dispute Settlement Body (DSB) adopted decisions in the disputes
 (DS384) and
 (DS386) to extend the
time period to adopt or appeal the reports of the panel to 23 March 2012.
1 The United States appealed
the panel reports on 23 March. As a result, the 60-day time period for circulation of the Appellate
Body report set out in Article 17.5 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU) expired on 22 May 2012, and the 90-day time limit set out in
Article 17.5 expired on 21 June 2012.

By a communication dated 21 May 2012, the Appella te Body stated that it would not be able
to issue its reports within 60 days of the initiation of the appeals. The communication also indicated
that the Appellate Body expected that it would not be able to circulate its reports within the 90-day
time limit set out in Article 17.5. The communication states that the Appellate Body instead expects
to circulate its reports by Friday, 29 June 2012.
2

For the reasons set out below, Canada, Mexico , and the United States (the "parties to the
disputes") request that the DSB adopt the draft decision attached to this letter. Through this decision,
the DSB would deem the reports, issued no later than Friday, 29 June, to be Appellate Body reports
pursuant to Article 17.5 of the DSU.

The parties to the disputes recall that the language in Article 17.5 sets a 90-day time limit ("In
no case shall the proceedings exceed 90 days.").
3 However, as in several recent appeals, the Appellate
Body has indicated that for these appeals it woul d be necessary to go beyond that 90-day period in
order to complete its work. In the circumstances of these appeals, the parties to the disputes would
agree and consider that it would be desirable for th e DSB to confirm its agreement that the reports in

1 WT/DSB/M/310 (14 March 2012).
2 WT/DS384/14 (23 May 2012); WT/DS386/13 (23 May 2012).
3 DSU Article 17.5 ("When the Appellate Body co nsiders that it cannot provide its report within
60 days, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period
within which it will submit its report. In no case shall the proceedings exceed 90 days.").

these appeals, issued by Friday, 29 June, would be deemed to be Appellate Body reports pursuant to
Article 17.5 of the DSU.

The parties consider that consideration by the DSB of the draft decision and adoption of that
decision would serve several useful purposes.

First, through circulation of the draft decision and consideration at a DSB meeting, the issue
is given full transparency. Members of the DSB can give due consideration to the reasons cited by the
Appellate Body in its communication for circul ation outside the 90-day time limit as well as the
reasons cited by the parties to the disputes for pu tting forward the draft decision. Through circulation
of the draft decision, the parties to the disputes ar e informing other Members of their agreement to the
circulation of the appellate reports outside the 90-day time limit. The parties consider that it would be
desirable that the Appellate Body consult with the parties and have their agreement, and this draft
decision informs other Members of the parties' agre ement. Through the process of consideration of
the draft decision, Members will therefore be fu lly apprised of the circumstances under which the
reports may come before the DSB for adoption.

Second, the parties consider it desirable that the DSB provide greater certainty on the
adoption procedure that will apply to the reports. Th e reports will be put before the DSB for adoption
by all Members. Any Member may observe that th e 90-day deadline in Article 17.5 of the DSU has
not been met. The parties to the disputes consider that in these circumstances it would be appropriate
also for the DSB to agree to deem the reports to be Appellate Body reports pursuant to Article 17.5 of
the DSU. Without prejudice to any Member's syst emic views on the proper adoption procedure, the
draft decision, if adopted by the DSB, would increase certainty with respect to the adoption process.

Finally, the parties note that the language of the draft decision has been drawn from the letters
filed by a number of Members in numerous past a ppeals, through which the parties to those disputes
have expressed their willingness to deem the reports in those appeals to be Appellate Body reports
pursuant to Article 17.5 of the DSU.
4

For the foregoing reasons, the parties to the dis pute consider that the draft DSB decision, if
adopted, would provide greater transparency to Members of the DSB of the circumstances under
which the reports in the above-mentioned appeals may come before the DSB for adoption, enhance
administration by the DSB of DSU procedures in relation to these appeals, and provide greater
certainty for Members of the DSB with respect to the adoption process for these appellate reports
circulated beyond the 90-day time limit in Article 17.5 of the DSU.

4 See, e.g. , Joint Communication from the United States and Mexico, United States – Measures
Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (WT/DS381/13) (19 April 2012);
Joint Communication from the United States and China, China – Measures Related to the Exportation of
Various Raw Materials (WT/DS394/14) (13 January 2012); Communication from the United States and China,
United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China
(WT/DS379/7) (8 February 2011); United States – Continued Suspension of Obligations in the EC – Hormones
Dispute (AB) (WT/DS320/AB/R) & Canada – Continued Suspension of Obligations in the EC – Hormones
Dispute (AB) (WT/DS321/AB/R), para. 29 (adopted 14 November 2008) (letters by the European Communities,
the United States, and Canada); United States – Subsidies on Upland Cotton: Recourse to Article 21.5 of the
DSU by Brazil (AB) (WT/DS267/AB/RW), para. 14 (adopted 20 June 2008) (letters by Brazil and the
United States); European Communities − Export Subsidies on Sugar (AB) (WT/DS265/AB/R,
WT/DS266/AB/R, WT/DS283/AB/R), para. 7 (adopted 19 May 2005) (letters by the European Communities,
Australia, Brazil, and Thailand); United States – Subsidies on Upland Cotton (AB) (WT/DS267/AB/R), para. 8
(adopted 21 March 2005) (letters by Brazil and the United States).

The parties to these disputes look forward to the support of Members for the draft decision
and would be pleased to discuss the draft decision with any interested Members.

We respectfully request that you circulate this request and the annexed draft decision to
Members of the DSB.

(signed)
Robert McDougall
Counsellor
Permanent Mission of Canada
to the WTO
(signed)
Hugo Romero
Counsellor
Permanent Mission of Mexico
to the WTO
(signed)
Juan A. Millán
Senior Legal Advisor
Permanent Mission of the
United States to the WTO

Draft Decision of the DSB:

The DSB agrees that it deems a report in the appeal in (DS384), circulated by the Appellate Body no later than
29 June 2012, to be an Appellate Body report circulated pursuant to Article 17.5 of the Understanding
on Rules and Procedures Governing the Settlement of Disputes. The DSB further agrees that it deems
a report in the appeal in
(DS386), circulated by the Appellate Body no later th an 29 June 2012, to be an Appellate Body report
circulated pursuant to Article 17.5 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes.