[ 劉成偉 ]——(2003-7-7) / 已閱76458次
“... any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired or that the attainment of any objective of the Agreement is being impeded as the result of
（a）the failure of another contracting party [Member of the WTO] to carry out its obligations under this Agreement, or
（b）the application by another contracting party [Member of the WTO] of any measure, whether or not it conflicts with the provisions of this Agreement, or
（c）the existence of any other situation.”
As it implies, unlike that in many other dispute settlement procedures generally designed to resolve differences on the interpretation or application of the provisions under most international treaties, international responsibility in WTO law is not assessed only in terms of compliance with the specific provisions of the relevant agreements. Rather, it is the idea of nullification or impairment that determines whether rights to complain arise under the covered agreement.
Art. XXIII:1 suggests that legal considerations need not be the sole focus of a complaint under the DSU, and that the DSU procedures can be invoked for the settlement of any trade dispute arising from any governmental measure, whether legal or illegal, and that arising from any situation, whether attributable to a government or not. A member demonstrating that a measure or any other situation nullified or impaired their benefits accruing to the covered agreements is given redress even if there was no failure to carry out the obligations. What’s more, a benefit doesn’t need to accrue directly to the party; an indirect benefit is protected as well. It seems that the aim of Art. XXIII:1 is to ensure that the negotiated balance of concessions is maintained even in situations that cannot be foreseen and that can consequently not be defined.
In practice, it is demonstrated that panels and the Appellate Body have broadly defined nullification or impairment of a benefit. The equation of “nullification or impairment” with “upsetting the competitive relationship” established between members has been consistently used. However, as a result of the divergence between the text of the provisions and the practice under it, the actual scope and function of the concept of nullification or impairment is often misunderstood. It is helpful for the clarification of this concept to go further into the standing issue before the DSB.
II The Standing Issue before the DSB
The term “standing” has not been explicitly embodied in the text of the DSU or in any other covered agreements. It is used here for the purpose of examining whether a party must demonstrate the existence of some interest concerned, as usually required in domestic judicial process, in launching a complaint before the DSB.
In EC-Bananas (DS27) 1, the Appellate Body does not accept that the need for a “legal interest” is implied in the DSU or in any other provision of the WTO Agreement when the EC queries the right of US to bring claims under the GATT 1994. During the appellate review, the Appellate Body agree with the Panel that, “neither Art. 3.3 nor 3.7 of the DSU nor any other provision of the DSU contains any explicit requirement that a Member must have a ‘legal interest’ as a prerequisite for requesting a panel”. As found by the Appellate Body, it is true that under Art. 4.11 of the DSU, a Member wishing to join in multiple consultations must have “a substantial trade interest”, and that under Art. 10.2 of the DSU, a third party must have “a substantial interest” in the matter before a panel. But neither of these provisions in the DSU, nor anything else in the WTO Agreement, provides a basis for asserting that parties to the dispute have to meet any similar standard.
The participants in this appeal also refer to certain judgments of the International Court of Justice and the Permanent Court of International Justice relating to whether there is a requirement, in international law, of a legal interest to bring a case. The Appellate Body can not read any of these judgments as establishing a general rule that in all international litigation a complaining party must have a “legal interest” in order to bring a case. Nor do they think that these judgments deny the need to consider the question of standing under the dispute settlement provisions of any multilateral treaty, by referring to the terms of that treaty. This leads the Appellate Body to examine Art. XXIII of the GATT 1994, which is the dispute settlement provision for disputes brought pursuant to GATT 1994.
After referring to the chapeau of Art. XXIII:1, the Appellate Body notes that of special importance for determining the issue of standing, are the words “[i]f any Member should consider ...”. They think that this provision in Art. XXIII is consistent with Art. 3.7 of the DSU, which states that “[b]efore bringing a case, a Member shall exercise its judgment as to whether action under these procedures would be fruitful”. Accordingly, the Appellate Body finds that “a Member has broad discretion in deciding whether to bring a case against another Member under the DSU. The language of Article XXIII:1 of the GATT 1994 and of Article 3.7 of the DSU suggest, furthermore, that a Member is expected to be largely self-regulating in deciding whether any such action would be ‘fruitful’”.
While in Korea-Dairy Products (DS98), regarding Korea's reference to the lack of economic interest of the EC, the Panel finds that under the DSU there is no requirement that parties must have an economic interest. Recalling some concerned findings in EC-Bananas, the Panel rules that they can’t read in the DSU any requirement for an “economic interest”. 2
III Lack of Possible Compensation
As noted above, there is no requirement under the WTO for a “legal interest” or an “economic interest” for Members to invoke the DSU procedures for the settlement of any trade dispute. However, is the right to pursue a proceeding denied by the lack of any possible compensation?
In EC-Bananas (DS27)，EC resorts to arbitration under Art. 22.6 of the DSU. And the Arbitrators note that, inter alia, EC contends that especially with respect to trade in goods the nullification or impairment suffered by the United States is negligible or nil since there is no actual trade and little prospect for potential trade in bananas between the United States and the EC. In this respect, the Arbitrators recall the EC's argument in the original dispute that even if a Member not suffering nullification or impairment of WTO benefits in respect of bananas were allowed to raise a claim under the GATT, that Member would not have had an effective remedy under Art. 22 of the DSU. The Arbitrators also note the complainants' argument in the original dispute that Art. 3.8 of the DSU presupposes a finding of infringement prior to a consideration of the nullification or impairment issue, suggesting that even if no compensation were due, an infringement finding could be made.
The Arbitrators agree the complainants’ argument, and rule that, Art. XXIII:1 of the GATT 1994 and Art. 3.3 of the DSU do not establish a procedural requirement. As found by the Arbitrators, these provisions concern the initiation of a WTO dispute settlement proceeding where a Member considers benefits directly or indirectly accruing to it were nullified or impaired. Such an initial decision on whether or not to raise a complaint is necessarily the result of a subjective and strategic consideration from the individual perspective of a Member. However, a decision on whether the assertion of nullification or impairment by an individual Member will be warranted and justified in light of WTO law is a different decision, taken by a panel or the Appellate Body from the objective benchmark of the agreements covered by the WTO. Furthermore, the Arbitrators rule that the review of the level of nullification or impairment by Arbitrators from the objective benchmark foreseen by Art. 22 of the DSU is a separate process, independent from the finding of infringements of WTO rules by a panel or the Appellate Body. 3
IV Summary and Conclusions
According to Art. XXIII:1 of the GATT 1994, if a WTO member means to get redress by invoking the DSU procedures for the settlement of any trade dispute arising from any governmental measure or any situation, it must demonstrate that such measures or situations resulted in a nullification or impairment of any benefits accruing to it directly or indirectly under the covered agreements. As noted above, the concept of nullification or impairment is viewed as a change upsetting the competitive relationship between members. And it is demonstrated by the WTO practice that the need for a “legal interest” or an “economic interest” cannot be implied in the DSU or in any other provisions of the WTO Agreement. A Member's potential interests in trade in goods or services and its interest in a determination of rights and obligations under the WTO Agreements are each sufficient to establish a right to pursue a WTO dispute settlement proceeding.
In fact, a crucial point is the balance of economic relations based on particular negotiated results in terms of rights and obligations rather than the actual trade flows. Over the last decades of GATT/WTO dispute settlement practice, it has become a truism of GATT/WTO jurisprudence that, lack of actual trade cannot be determinative for a finding that no violation of a provision occurred because it cannot be excluded that the absence of trade is the result of an illegal measure. In this respect, as next section will show, related closely to the standing issue, a presumption has been explicitly provided for in the Art. 3.8 of the DSU, pursuant to which nullification or impairment is presumed once a violation is established.
In short, a Member has broad discretion in deciding whether to bring a case against another Member under the DSU, and is expected to be largely self-regulating in deciding whether any such action would be fruitful. However, a Member's right to pursue a proceeding does not automatically imply that it is entitled to obtain any remedies available under the WTO.
【NOTE】:
1. See, in detail, WT/DS27/AB/R/132-135.
2. See, in detail, WT/DS98/R/7.13-7.14.
3. See, in detail, WT/DS27/ARB/6.9.
Section Two
Causes of Action before the DSB in General
Indeed, the concept of nullification or impairment under Art. XXIII:1 provides three causes of action before the DSB. Art. XXIII:1(a) involves so-called violation complaints arising from an alleged failure by a Member to carry out its obligations. In contrast, Art. XXIII:1(b) involves non-violation complaints, which do not require an allegation of a violation of an obligation. And Art. XXIII:1(c) covers what are commonly called situation complaints. However, there is no adequately specific test for any kind of the three causes of action in the DSU. Cases under the GATT/WTO imply that there are various applicable terms or essentials for the establishment of various complaints. And in this section generally, we will take an overview on the three causes of action.
I The Presumption in Violation Complaints
（i）Introduction
During decades of experience, Art. XXIII:1(a) has formed the basis of almost all disputes under the GATT 1947 and the WTO Agreement. Dispute settlement under the GATT/WTO has always been dominated by violation complaints.
The concept of so-called violation complaints, developing from the provision of XXIII:1(a), refers to those complaints brought before the DSB by a WTO member when it thinks that any benefit accruing to it directly or indirectly under the covered agreement is being nullified or impaired as a result of the failure of another member of the WTO to carry out its obligations under that agreement. In 1960, the CONTRACTING PARTIES decided that a GATT-inconsistent measure was presumed to cause nullification or impairment and that it was up to the party complained against to demonstrate that this was not the case.1 This principle was assimilated in the dispute settlement procedures adopted at the end of the Tokyo Round, and is now reflected in Art. 3.8 of the DSU, which reads:
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