What is not so cool about US COOL regulations? A critical analysis of the Appellate Body's ruling on US-COOL
In US-COOL, the Appellate Body (AB) of the World Trade Organization (WTO) found that the US measure imposing country of origin labelling (COOL) requirements on livestock of domestic, foreign, and mixed origin was in violation of the obligation to avoid discrimination embedded in Art. 2.1 of the WTO Agreement on Technical Barriers to Trade (TBT). We argue that the AB could not and should not have reached this decision based on the information available to it. The AB adopted an erroneous methodology: under its view, the consistency of a measure coming under the purview of the TBT can be examined under Art. 2.1 irrespective of its evaluation under Art. 2.2 thereby making the two obligations distinct. The AB also failed to address the central question raised by this dispute: Does there exist an alternative to COOL that is less trade restrictive? We argue that the over-arching issue in this case should have been to determine what, if anything, the TBT Agreement did to alter or enhance the obligation of non-discrimination that was already embedded in the arsenal of the multilateral trading rules. Unless the AB asks this question in subsequent case law pertaining to the TBT, we risk seeing repetitions of similar mistakes in the future.
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- Irwin, Douglas A, 1998. "Change in U.S. Tariffs: The Role of Import Prices and Commercial Policies," American Economic Review, American Economic Association, vol. 88(4), pages 1015-1026, September.
- Mavroidis, Petros C., 2013. "Driftin’ too far from shore – Why the test for compliance with the TBT Agreement developed by the WTO Appellate Body is wrong, and what should the AB have done instead," World Trade Review, Cambridge University Press, vol. 12(03), pages 509-531, July.
- Horn, Henrik & Johannesson, Louise & Mavroidis, Petros C., 2011. "The WTO Dispute Settlement System 1995-2010: Some Descriptive Statistics," Working Paper Series 891, Research Institute of Industrial Economics.
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