The Study Of The Application Of Article 12.3 Of TBT Agreement In The Case Of "United States — Certain Country Of Origin Labelling Requirements"

On 17 December 2008, Mexico requested consultations with the United States concerning the mandatory country of origin labelling(COOL) provisions. After the consultations failed, Mexico filed a lawsuit against the United States, requesting the establishment of a panel on 9 October 2009. On 19 November 2009, the panel was established, and On 18 November 2011, the panel report was circulated to Members. After that, Mexico and the United States appealed separately, and on 29 June 2012, the Appellate Body report was circulated to Members.The main dispute between the parties focuses on TBT Agreement, referring to several articles of that agreement. This paper is concerned about the application of Article 12.3 of TBT Agreement. Article 12.3 of TBT Agreement requires WTO Members shall, in the preparation and application of technical regulations, standards and conformity assessment procedures, take account of the special development, financial and trade needs of developing country Members, with a view to ensuring that such technical regulations, standards and conformity assessment procedures do not create unnecessary obstacles to exports from developing country Members. Mexico argued that the relevant measures of the United States violated this article, but the United States contested that it was in consistent with the requirement of that provision in the preparation and application of the relevant technical regulations.This paper focuses on the application of the Article 12.3 of TBT Agreement, and is divided into five parts. The first part is an overview of the case, outlining the causes of the case, the whole process of the dispute, the core concern this article focuses on, that is the application of Article 12.3 of TBT Agreement and the finding of the panel.The second part is about the threshold of the application of the Article 12.3 of TBT Agreement. It will combine the specific measures to solve the question that whether article 12.3 of TBT Agreement can be applied to this case. The third part is the core of this paper, namely the analysis of the legal test during the process of the application of Article 12.3 of TBT Agreement, and mainly involves three aspects: first, what is the scope of the obligations set in this provision; second, who bears the obligation of the burden of proof; third, what is the meaning of the obligation in this provision. Through the analysis of these three aspects, to know how this article is applied in the real WTO dispute practice. The fourth part refers to enlightenment to China. According to the above analysis of the application of this article, it hopes to offer some suggestion for China to use this article reasonably to reply the impact caused by technical regulation on trade and to safeguard the spacial and differential treatment China should have as a developing country, and at the same time to provide guidance for China to enact its own technical regulation to be consistent with this article. The last part is the conclusion, to summarize the application of Article 12.3 of TBT Agreement in practical WTO dispute.