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WTO Dispute Settlement Mechanism(2)
Chapter ⅡCauses of Action before the DSB:
Art. XXIII of the GATT 1994
OUTLINE
Section One Right to Pursue a Proceeding under the WTO
I The Concept of Nullification or Impairment
II The Standing Issue before the DSB
III Lack of Possible Compensation
IV Summary and Conclusions
Section Two Causes of Action before the DSB in General
I The Presumption in Violation Complaints
（i）Introduction
（ii）Practice under the GATT Jurisprudence
（iii）Rulings under the WTO Jurisprudence
（iv）A Summary
II An Overview of Non-Violation Complaints
（i）Related Texts
（ii）Relationship between Arts. 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 Remedy
III Presupposed Situation Complaints
Section Three Establishment of Non-violation Complaints
I Introduction
II 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 Applied
III Existence of a Benefit: 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: Causality
V Summary and Conclusions
Section One
Right to Pursue a Proceeding under the WTO
I 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 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 heretofore 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 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 origi
nal 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 vio
lation 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:
“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 impairment. This means that there is normally a presumption that a breach of the rules has an adverse 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 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 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) Practice under the GATT Jurisprudence
In 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 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 investment 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: “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 complaint. 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 presumption 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 gover
ning import controls have been defined in terms of conditions of competition rather than trade flows, the idea that a measure might be inconsistent with a provision of the GATT prescribing certain conditions of competition but nevertheless not impair benefits accruing under it for lack of any trade effects is no longer tenable.
(iii) Rulings under the WTO Jurisprudence
In practice, various panels or the standing Appellate Body in most cases make a presumption of nullification or impairment under the WTO directly from the establishment of a violation. For example, in EC-Computer Equipment (DS62/DS67/DS68), the Panel rules in its report that, “[i]n view of our finding that the tariff treatment of LAN equipment by customs authorities in the European Communities violated Article II:1 of GATT 1994, we find that it is not necessary to examine this additional claim with respect to LAN equipment, except to note that the infringement of GATT rules is considered prima facie to constitute a case of nullification or impairment under Article 3.8 of the DSU”.4
And in US-1916 Act (DS136), the Panel rules as: “We have found that the 1916 Act as such violates Article VI:1 and VI:2 of the GATT 1994, as well as Articles 1, 4 and 5.5 of the Anti-dumping Agreement. We also concluded that, by not ensuring the conformity of the 1916 Act with its obligations as provided under the above-mentioned provisions, the United States violates Article XVI:4 of the Agreement Establishing the WTO. Since Article 3.8 of the DSU provides that ‘[I]n 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 impairment’ and as the United States has adduced no evidence to the contrary, we conclude that the 1916 Act nullifies or impairs benefits accruing to the European Communities under the WTO Agreement”.5
Nevertheless, some panels and the Appellate Body have also systematically rejected as insufficient the demonstration of an absence of trade impact in some cases. For example, in EC- Bananas (DS27) 6, EC attempts to rebut the presumption of nullification or impairment with respect to the Panel's findings of violations of the GATT 1994 on the basis that US have never exported a single banana to the European Community, and therefore, could not possibly have suffered any trade damage.
The Appellate Body notes firstly that two points had been made that the Panel may well had in mind in reaching its conclusions on nullification or impairment. One is that the United States is a producer of bananas and that a potential export interest by the United States couldn’t be excluded; the other is that the internal market of the United States for bananas could be affected by the EC bananas regime and by its effects on world supplies and world prices of bananas. The Appellate Body decides that these are matters relevant to the question of the standing of the United States unde
r the GATT 1994. They are equally relevant to the question whether the European Communities has rebutted the presumption of nullification or impairment.
To go on with their analysis, the Appellate Body refer to the Panel Report on US-Superfund, to which the Panel in present case referred. In that case, the panel examined whether measures with “only an insignificant effect on the volume of exports do nullify or impair benefits under Article III:2”, and concluded (and in so doing, confirmed the views of previous panels) that: “Article III:2, first sentence, cannot be interpreted to protect expectations on export volumes; it protects expectations on the competitive relationship between imported and domestic products. A change in the competitive relationship contrary to that provision must consequently be regarded ipso facto as a nullification or impairment of benefits accruing under the General Agreement. A demonstration that a measure inconsistent with Article III:2, first sentence, has no or insignificant effects would therefore in the view of the Panel not be a sufficient demonstration that the benefits accruing under that provision had not been nullified or impaired even if such a rebuttal were in principle permitted”. The Appellate Body finds that the reasoning in US-Superfund applies equally in present case. For these reasons, the Appellate Body concludes that they find no legal basis on which to reverse the conclusions of the Panel.
（iv）A Summary
As to the concept of nullification or impairment in violation cases, there is a presumption suggesting that a violation constitute a prima facie case of nullification or impairment pursuant to Art. 3.8 of the DSU. And a prima facie case is where, in the absence of effective refutation by the defending party, a panel is required, as a matter of law, to rule in favor of the complaining party presenting the prima facie case. However, the presumption has in practice operated as an irrefutable presumption.
Over the last decades of GATT/WTO dispute settlement practice, the violation of obligations has been presumed to cause impairment and no contracting party or WTO member has been allowed to rebut successively that presumption. 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. Therefore, in the case of violation complaints, the concept of nullification or impairment has not had any practical impact over the last years because of the existence of such a “presumption”.
Indeed, in a multilateral trade order that prescribes conditions of competition and therefore doesn’t guarantee trade results but trade opportunities or competitive relations between members, a change in the competitive relationship contrary to that provision must consequently be regarded ipso facto as a nullification or impairment
of benefits accruing to Members.
II An Overview of Non-Violation Complaints
（i）Related Texts
The use of different forms of complaints in Art. XXIII:1 suggests that the prohibition to nullify or impair benefits, i.e. favorable conditions of competition as to market access and on the market, cannot be fully secured by compliance with specific treaty obligations. And it is necessary to establish equitable remedies such as non-violation or situation remedies outside of the proper province of legal obligations.
Unique from generally offering the opportunity for parties to a treaty to request consultation and relief from measures undertaken by other parties, such relief in the WTO legal system distinguishes violation and non-violation claims, or legal and non-legal causes of action. Under Art. XXIII:1(b), a Member can bring a non-violation complaint when the negotiated balance of concessions between Members is upset by the application of a measure, whether or not this measure is inconsistent with the provisions of the covered agreement. The existence of a non-violation remedy under Art.XXIII:1(b) of the GATT 1994 requires Members of the WTO to adhere to the principles of the covered agreements, even if there are no rules forbidding the particular action taken. And the non-violation remedy is handled specifically in Art. 26.1 of the DSU which reads:
“1. Non-violation Complaints of the Type Described in Paragraph 1（b）of Article XXIII of GATT 1994
Where the provisions of paragraph 1(b) of Article XXIII of GATT 1994 are applicable to a covered agreement, a panel or the Appellate Body may only make rulings and recommendations where a party to the dispute considers that any benefit accruing to it directly or indirectly under the relevant covered agreement is being nullified or impaired or the attainment of any objective of that Agreement is being impeded as a result of the application by a Member of any measure, whether or not it conflicts with the provisions of that Agreement. Where and to the extent that such party considers and a panel or the Appellate Body determines that a case concerns a measure that does not conflict with the provisions of a covered agreement to which the provisions of paragraph 1(b) of Article XXIII of GATT 1994 are applicable, the procedures in this Understanding shall apply, subject to the following:
(a) the complaining party shall present a detailed justification in support of any complaint relating to a measure which does not conflict with the relevant covered agreement;
(b) where a measure has been found to nullify or impair benefits under, or impede the attainment of objectives, of the relevant covered agreement without violation thereof, there is no obligation to withdraw the measure. However, in such cases, the panel or the Appellate Body shall recommend that the Member concerned make a mutually satisfactory adjustment;
(c) notwithstanding the provisions of Article 21, the arbitration pro
vided for in paragraph 3 of Article 21, upon request of either party, may include a determination of the level of benefits which have been nullified or impaired, and may also suggest ways and means of reaching a mutually satisfactory adjustment; such suggestions shall not be binding upon the parties to the dispute;
(d) notwithstanding the provisions of paragraph 1 of Article 22, compensation may be part of a mutually satisfactory adjustment as final settlement of the dispute.”
Although Art. XXIII:1(b) of the GATT 1994 remains as it was, Art. 26.1 of the DSU codifies several aspects of the case law developed under the GATT jurisprudence. For instance, Art. 26.1(a) clarifies the principle set out in case law, of the need to accompany a non-violation complaint with specific evidence of harm. Also, the Article concretizes the technically non-violation nature of the case. Art. 26.1(b) sets forth special rules both pertaining to the reversal of burden of proof and justification, and to remedies. These deviate from the addressing of these issues in violation complaints in Arts. 3.8 and 22 of the DSU. Foremost of those deviations is that non-violation findings do not oblige the Member concerned to withdraw a measure not inconsistent with the agreements, instead the obligation is limited to provide mutually satisfactory adjustments, usually by means of compensation. Furthermore, Arts. 26.1(c) and 26.1(d) set forth special rules pertaining to the arbitration and compensation in non-violation complaints.
（ii）Relationship between Arts. XXIII:1(a) and XXIII:1(b)
In EC –Asbestos (DS135), it is the first occasion for the Appellate Body to examine Art. XXIII:1(b) of the GATT 1994. For this reason, the Appellate Body think there it necessary for them to make certain preliminary observations about the relationship between Arts. XXIII:1(a) and XXIII:1(b) of the GATT 1994.
In this respect, the Appellate Body rules that, “Article XXIII:1(a) sets forth a cause of action for a claim that a Member has failed to carry out one or more of its obligations under the GATT 1994. A claim under Article XXIII:1(a), therefore, lies when a Member is alleged to have acted inconsistently with a provision of the GATT 1994. Article XXIII:1(b) sets forth a separate cause of action for a claim that, through the application of a measure, a Member has ‘nullified or impaired’ ‘benefits’ accruing to another Member, ‘whether or not that measure conflicts with the provisions’ of the GATT 1994. Thus, it is not necessary, under Article XXIII:1(b), to establish that the measure involved is inconsistent with, or violates, a provision of the GATT 1994. Cases under Article XXIII:1(b) are, for this reason, sometimes described as ‘non-violation’ cases, though, the word ‘Non-violation’ does not appear in this provision.”7
（iii）Underlying Purpose of Art. XXIII:1(b)
Non-violation complaints are rooted in the GATT's origins as an agreement intended to protect the reciprocal tariff con
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