A couple months ago in Cloves, the Appellate Body had the following to say about the "less favourable treatment" standard" of TBT Article 2.1:
215. ... Where the technical regulation at issue does not de jure discriminate against imports, a panel must carefully scrutinize the particular circumstances of the case, that is, the design, architecture, revealing structure, operation, and application of the technical regulation at issue, and, in particular, whether that technical regulation is even-handed, in order to determine whether the detrimental impact on imports stems exclusively from a legitimate regulatory distinction rather than reflects discrimination against the group of imported products.
Right after that, in Tuna, they used similar language:
284. .... The question before us is thus whether the United States has demonstrated that this difference in labelling conditions is a legitimate regulatory distinction, and hence whether the detrimental impact of the measure stems exclusively from such a distinction rather than reflecting discrimination.
Basically, first you look at whether there is a "detrimental impact," then you see whether such impact "reflects discrimination." What kind of discrimination? I wasn't completely sure then, but after today's COOL decision I'm even less certain:
271. ... In contrast, where a regulatory distinction is not designed and applied in an even-handed manner —because, for example, it is designed or applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination—that distinction cannot be considered "legitimate", and thus the detrimental impact will reflect discrimination prohibited under Article 2.1.
So now it's not just discrimination we are looking at under Article 2.1, but "arbitrary or unjustifiable" discrimination, like with the Article XX chapeau. At least, in this case it was. The AB said this is an "example" of something not even-handed. So is that just one kind of discrimination it might look for? What are some other kinds? Was the AB implicitly looking at "arbitrary or unjustifiable" discrimination in Cloves and Tuna?
And what exactly is discrimination? This is a question Rob and Joanna asked here. I'm going to give a brief description of my views in an upcoming post.