WTO Dispute Settlement Mechanism的论文

1、WTO Dispute Settlement Mechanism(2)的论文 chapter causes of action before the dsb:art. xxiii of the gatt 1994outlinesection one right to pursue a proceeding under the wtoi the concept of nullification or impairment ii the standing issue before the dsbiii lack of possible compensationiv summary and conc

2、lusionssection two causes of action before the dsb in generali the presumption in violation complaints（i）introduction（ii）practice under the gatt jurisprudence（iii）rulings under the wto jurisprudence（iv）a summaryii an overview of non-violation complaints（i）related texts（ii）relationship between arts.

3、xxiii:1(a) and xxiii:1(b)（iii）underlying purpose of art. xxiii:1(b)（iv）non-violation claims in the context of principles of customary international law（v）appropriate attitudes as to non-violation remedyiii presupposed situation complaintssection three establishment of non-violation complaintsi intro

4、ductionii application of a measure: scope of measures covered by art. xxiii:1(b)（i）measures short of legally binding obligations（ii）measures falling under other provisions of the gatt 1994（iii）measures concerning the protection of human health（iv）measures continuingly appliediii existence of a benef

5、it: protection of legitimate expectations （i）protection of legitimate expectations（ple）（ii）non-foreseeability of measures at issue（iii）benefits in the negotiations（iv）benefits under successive rounds iv nullification or impairment of benefit: causalityv summary and conclusionssection oneright to pur

6、sue a proceeding under the wtoi the concept of nullification or impairment nullification or impairment is a most important concept developed in previous gatt dispute settlement system. it is incorporated into the gatt 1994 by the so-called incorporation clause (paragraph 1 of the gatt 1994) and goes

7、 on to operate as an important feature of the dsu under the wto. dispute settlement mechanism under the wto continues to revolve around the concept of nullification or impairment. art. 3.1 of the dsu requires members to “affirm their adherence to the principles for the management of disputes heretof

8、ore applied under articles xxii and xxiii of gatt 1947”. according to art. xxiii:1 of the gatt, a member may have recourse to dispute settlement under the wto when it considers that:“. any benefit accruing to it directly or indirectly under this agreement is being nullified or impaired or that the a

9、ttainment 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 conflic

10、ts 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, internationa

11、l 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 conside

12、rations 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 mem

13、ber 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. whats more, a benefit doesnt need to accrue directly to the party; an indirect benefit is protec

14、ted 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 nullif

15、ication 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 scop

16、e 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 dsbthe term “standing” has not been explicitly embodied in the text of the ds

17、u 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

18、 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 n

19、or 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 substant

20、ial trade interest”, and that under art. 10.2 of the dsu, a third party must ha ve “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 si

21、milar 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 rea

22、d 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

23、 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 tha

24、t of special importance for determining the issue of standing, are the words “if any member should consider .”. they think that this provision in art. xxiii is consistent with art. 3.7 of the dsu, which states that “before bringing a case, a member shall exercise its judgment as to whether action un

25、der 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 mem

26、ber is expected to be largely self-regulating in deciding whether any such action would be fruitful”.while in korea-dairy products (ds98), regarding koreas 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 econo

27、mic interest. recalling some concerned findings in ec-bananas, the panel rules that they cant read in the dsu any requirement for an “economic interest”. 2iii lack of possible compensationas noted above, there is no requirement under the wto for a “legal interest” or an “economic interest” for membe

28、rs 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

29、 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 ecs argume

30、nt 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 argum

31、ent 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

32、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 nullifi

33、ed 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

34、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 obje

35、ctive 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. 3iv summary and conclusionsaccording to art. xxiii:1 of the gatt 1994, if a wto member means to get redress by invoking the dsu procedure

36、s 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 con

37、cept 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

38、members 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

39、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 o

40、f a provision occu rred 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 nullifi

41、cation 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 members r

42、ight 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 twocauses of action before the dsb in generalin

43、deed, 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 co

44、mplaints, 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 v

45、arious 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）introductionduring decades of experience, art. xxiii:1(a) has formed the basis of almo

46、st 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 m

47、ember 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-incon

48、sistent 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

49、 of the dsu, which reads:“in cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairme nt. this means that there is normally a presumption that a breach of the rules has an adverse

50、 impact on other members parties to that covered agreement, and in such cases, it shall be up to the member against whom the complaint has been brought to rebut the charge.”from the provision above, we note that in violation complaints, there is an essential concept, i.e. a “presumption” which means

51、 that, the violation of obligations constitutes a prima facie case of nullification or impairment. art. 3.8 of the dsu suggests that once an infringement or violation of the obligations assumed under a covered agreement has been demonstrated, a presumption that the violation causes nullification or

52、impairment is established. at the same time, this provision seems to suggest that the presumption of nullification or impairment is rebuttable. however, it is not the case and as to be shown below, there has been no case of a successful rebuttal of the presumption in the history of the gatt/wto.(ii)

53、 practice under the gatt jurisprudencein an action concerning import quotas on leather, japan argued that since the quotas were not fully utilized, they did not restrain trade, and consequently had not caused a nullification or impairment of benefits. that panel rejected the argument on the grounds

54、that: “the existence of quantitative restrictions should be presumed to cause nullification or impairment not only because of any effect it had on the volume of trade but also for other reasons, e.g., it would lead to increased transaction costs and would create uncertainties which could affect inve

55、stment plans.”2 this ruling at least indicates that a demonstration that no adverse trade impact has as yet occurred is insufficient to rebut the presumption.and in 1987, a panel on the us-superfund summarized the legal situation regarding the presumption of nullification or impairment as follows: “

56、the panel examined how the contrating parties have reacted in previous cases to claims that a measure inconsistent with the general agreement had no adverse impact and therefore did not nullify or impair benefits accruing under the general agreement to the contracting party that had brought the comp

57、laint. the panel noted that such claims had been made in a number of cases but that there was no case in the history of the gatt in which a contracting party had successfully rebutted the presumption . the panel concluded that, while the contracting parties had not explicitly decided whether the pre

58、sumption that illegal measures cause nullification or impairment could be rebutted, the presumption had in practice operated as an irrefutable presumption.”3 as noted above, panels under the gatt cast doubt on the idea that the presumption of nullification or impairment might be rebuttable on the ground that the failure to observe the obligation had no impact on trade flows. because once the benefits accruing under the basic gatt provisions governing import controls have been defined in terms of conditions of compet