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 Article 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 Article 2.1 irrespective of its evaluation under Article 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.