UNITED STATES – CERTAIN COUNTRY OF ORIGIN LABELLING (COOL) REQUIREMENTS
Document: Notification of an Other Appeal by Mexico under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 23(1) of the Working Procedures for Appellate Review
Date: 2 April 2012
Document codes: WT/DS386/12
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

Notification of an Other Appeal by Mexico
under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 23(1) of the Working Procedures for Appellate Review

 The following notification, dated 28 March 2012, from the Delegation of Mexico, is being
circulated to Members.

Certain Country of Origin Labelling (COOL) Requirements (WT/DS386) ("Panel Report").

2. Pursuant to Rule 23(2)(c)(ii) of the Working Procedures for Appellate Review , this Notice of
Other Appeal includes an indicative list of the para graphs of the Panel Report containing the alleged
errors, without prejudice to Mexico's ability to refe r to other paragraphs of the Panel Report in the
context of this appeal.

I. Conditional Appeal of the Panel's Decision to Exercise Judicial Economy with Respect
to Mexico's Claims under Article III:4 of the GATT 1994

3. This appeal is conditional in the event that the Appellate Body overturns the Panel's finding
that the COOL measure is inconsistent with Article 2.1 of the TBT Agreement.

4. If this condition is triggered, Mexico appeals the Panel's decision to exercise judicial
economy in respect of Mexico's claim under Article III:4 of the GATT 1994.
1

5. The Panel erred in its decision to exercise judi cial economy with respect to Mexico's claims
under Article III:4 of the GATT 1994, considering the par ticular circumstances of this case, where, if
the Panel's finding on inconsistency of Article 2.1 of the TBT Agreement is overturned, the Panel's
legal basis for exercising judicial economy will no longer exist and Mexico will be left with no
positive solution to its discrimination claims under Article III:4 of the GATT 1994.

1Panel Report, 7.807, 8.4(a).

6. As a result of the foregoing error, Mexico requ ests the Appellate Body to modify the Panel's
legal conclusions and findings in paragraph 8.4 (a) and paragraph 7.807 of the Panel Report, complete
the analysis of Mexico's claims under Article III:4 of the GATT 1994, and find that the COOL
Measure is inconsistent with Article III:4 of the GATT 1994.

II. Conditional Appeal of the Panel's Finding Regarding the Identification of the Objective
Pursued by the COOL Measure and the Examination of Its Legitimacy

7. This appeal is conditional in the event that the Appellate Body overturns the Panel's finding
that the COOL measure is inconsistent with Article 2.2.

8. If this condition is triggered, Mexico appeals the Panel's finding that the objective of the
COOL measure is to "provide as much clear and accurate information as possible to consumers"
2 and
that " providing consumer information on origin is a legitimate objective within the meaning of
Article 2.2".3

9. The Panel applied an incorrect legal analysis to determine the objective and, by doing so, it
incorrectly identified that objective. Having erred in identifying the objective, the Panel incorrectly
found that the objective was legitimate.

10. Moreover, because the legal errors led to the exclus ion of relevant facts, the approach is also
factually erroneous. In this sense, the Panel faile d to make an objective assessment of the matter
before it and thereby acted inconsistently with Article 11 of the DSU.

11. As a result of the foregoing errors, Mexico requ ests the Appellate Body to modify the Panel's
legal conclusions and findings in paragraphs 7.620, 7.651, inter alia, of the Panel Report, apply the
correct analysis to identify the objective and exam ine its legitimacy, and find that the objective is
inconsistent with Article 2.2 of the TBT Agreement.

III. Conditional Appeal of the Panel's Decision to Exercise Judicial Economy in Respect of
the Existence of an Alternative Measure That is Less Trade Restrictive and That Fulfils
the Legitimate Objective Taking Into Account the Risks Non-Fulfilment Would Create

12. This appeal is conditional in the event that the Appellate Body overturns the Panel's finding
that the COOL measure is inconsistent with Article 2.2 of the TBT Agreement.

13. If this condition is triggered, Mexico appeals the Panel's decision to exercise judicial
economy in respect of "whether the COOL measure is 'more trade-restrictive than necessary' based on
the availability of less trade-restrictive alterna tive measure that can equally fulfil the identified
objective".
4

14. The Panel erred in its decision to exercise judici al economy in respect to Mexico's claims that
the COOL measure is more trade restrictive than necessary. In particular, there are alternative
measures that are less trade restrictive and that fulfil the legitimate objective taking into account the
risks non-fulfilment would create and, considering the particular circumstances of this case, if the
Panel's finding on inconsistency of Article 2.2 of the TBT is overturned, the Panel's legal basis for
exercising judicial economy will no longer exist and Mexico will be left with no positive solution to
its claims under Article 2.2 of the TBT Agreement.

2Panel Report, 7.620.
3Panel Report, 7.651.
4Panel Report, 7.719.

15. As a result of the foregoing error, Mexico requests that the Appellate Body modify the Panel's
legal conclusions and findings in the second sen tence of paragraph 7.719 of the Panel Report,
complete the analysis and find that the COOL m easure is inconsistent with Article 2.2 of the
TBT Agreement.

IV. Conditional Appeal of the Panel's Decision to Exercise Judicial Economy with
Respect to Mexico's Claim of Non-Viol ation Nullification or Impairment under
Article XXIII:1(b) of the GATT 1994.

16. This appeal is conditional in the event that th e Appellate Body overturns the Panel's findings
that the COOL measure is inconsistent with Artic le 2.1 of the TBT Agreement and does not complete
the analysis and find that the measure is inconsistent with Article III:4 of the GATT 1994.

17. If this condition is triggered, Mexico appeals the Panel's decision to exercise judicial
economy with respect to Mexico's claim of non-violation nullification or impairment under
Article XXIII:1(b) of the GATT 1994.
5

18. The Panel erred in its decision to exercise judici al economy with respect to Mexico's claim of
non-violation nullification or impairment under Article XXIII:1(b) of the GATT 1994, considering the
particular circumstances of this case, where, if the Panel's finding on inconsis tency of Article 2.1 is
overturned and there is not a finding that the m easure is inconsistent with Article III:4 of the
GATT 1994, the Panel's legal basis for exercising ju dicial economy will no longer exist and Mexico
will be left with no positive solution to its clai m of non-violation nullifica tion or impairment under
Article XXIII:1(b) of the GATT 1994.

19. As a result of the foregoing error, Mexico requ ests the Appellate Body to modify the Panel's
legal conclusions and findings in pa ragraph 8.5 and paragraph 7.907, inter alia, of the Panel Report,
complete the analysis of Mexico's claim, and find that the COOL measure nullifies or impairs benefits
accruing to Mexico under the GATT 1994 within the meaning of Article XXIII:1(b) of the
GATT 1994.

5Panel Report, 7.907, 8.5.