II - ARGUMENTS OF THE PARTICIPANTS AND THE THIRD PARTICIPANTS

Summary

Claims of Error by the United States – Appellant

1. Article 2.1 of the TBT Agreement

17. The United States requests the Appellate Body to reverse the Panel's finding that the COOL measure is inconsistent with Article 2.1 of the TBT Agreement with regard to muscle cuts of meat, in particular the finding that the measure accords less favourable treatment to imported livestock than domestic livestock. The United States argues that the Panel's finding was based on “a faulty and unprecedented legal test” for the assessment of less favourable treatment and on a failure to make an objective assessment of facts related to segregation, commingling, and the price differential in the US livestock market.

(a) The Interpretation and Application of Article 2.1 of the TBT Agreement

18. The United States submits that, in order to determine whether a measure accords less favourable treatment to imported products under Article 2.1 of the TBT Agreement, the Panel should have followed past Appellate Body and panel reports in Thailand – Cigarettes (Philippines), Korea – Various Measures on Beef, and Dominican Republic – Import and Sale of Cigarettes. According to the United States, these reports generally focused on: (i) “whether the measure itself treats imported products differently and less favorably than domestic like products on the basis of their origin”; and (ii) “to the extent that there are adverse effects on imported products, whether these effects are attributable to the measure itself or are based on external non-origin related factors, such as pre-existing market conditions and the independent actions of private market actors.”