It is here. No big changes from the panel report: still a violation of TBT Article 2.1, and still no violation of TBT Article 2.2. Next up on the agenda, most likely, is an arbitration over the proper amount of retaliation.
I'm trying to sort out if the Appellate Body's clarifications of Article 2.2 tell us anything new. Maybe there is some guidance on the "gravity of the consequences" factor? Here are two possibly relevant passages:
5.254. However, as we have elaborated above, we do not consider that a complainant must demonstrate that its proposed alternative measure achieves a degree of contribution identical to that achieved by the challenged technical regulation in order for it to be found to achieve an equivalent degree. Rather, in our view, there is a margin of appreciation in the assessment of whether a proposed alternative measure achieves an equivalent degree of contribution, whose contours may vary from case to case. In particular, a margin of appreciation in assessing the equivalence of the respective degrees of contribution may be affected by the nature of the risks and the gravity of the consequences arising from the non-fulfilment of the technical regulation's objective. ...
and:
5.296. In any case, as we have explained above, difficulties or imprecision that arise in assessing "the risks non-fulfilment would create", due to the nature of the relevant risks or the gravity of the consequences of non-fulfilment of the objective of the measure at issue, should not, in and of themselves, relieve a panel from its duty to assess this factor. A panel should proceed further with a holistic weighing and balancing of all relevant factors, and reach an overall conclusion under Article 2.2. In our view, the term "taking account of" calls for the active and meaningful consideration of "the risks non-fulfilment would create", even where there is imprecision in their nature or magnitude, in the weighing and balancing under Article 2.2 of the TBT Agreement.
5.297. In the light of these considerations, we find that the Panel erred, in paragraph 7.423 of the Panel Reports, in concluding that it was unable to ascertain the gravity of the consequences of non-fulfilment of the amended COOL measure's objective.
I see two things here. The Appellate Body says panels really need to evaluate this factor; and it says this factor will affect the "margin of appreciation" related to the equivalency of the contribution. I suspect this factor will play a big role in the plain packaging dispute, where there are sure to arguments from Australia about the gravity of the consequences of smoking.
On another topic, I wonder how long the trend under TBT Article 2.2 will last under which there are endless clarifications but never any findings of violation.
And in somewhat related news, I just counted, and there are 21 ongoing WTO panels right now. That's a lot of jurisprudence coming!