WTO Dispute Settlement Mechanism(8)

ilateral process set out in the DSU when they seek the redress of a WTO inconsistency. In these circumstances, Members have to have recourse to the DSU dispute settlement system to the exclusion of any other system, in particular a system of unilateral enforcement of WTO rights and obligations. This, what one could call ‘exclusive dispute resolution clause’, is an important new element of Members' rights and obligations under the DSU. Second, Article 23.1 also prescribes that Members, when they have recourse to the dispute settlement system in the DSU, have to ‘abide by’ the rules and procedures set out in the DSU. This second obligation under Article 23.1 is of a confirmatory nature: when having recourse to the DSU Members must abide by all DSU rules and procedures.
Turning to the second paragraph under Article 23, Article 23.2 - which, on its face, addresses conduct in specific disputes - starts with the words ‘[i]n such cases’. It is, thus, explicitly linked to, and has to be read together with and subject to, Article 23.1.
Indeed, two of the three prohibitions mentioned in Article 23.2 - Article 23.2(b) and (c) - are but egregious examples of conduct that contradicts the rules and procedures of the DSU which, under the obligation in Article 23.1 to ‘abide by the rules and procedures’ of the DSU, Members are obligated to follow. These rules and procedures clearly cover much more than the ones specifically mentioned in Article 23.2. There is a great deal more State conduct which can violate the general obligation in Article 23.1 to have recourse to, and abide by, the rules and procedures of the DSU than the instances especially singled out in Article 23.2.
Article 23 interdicts, thus, more than action in specific disputes, it also provides discipline for the general process WTO Members must follow when seeking redress of WTO inconsistencies. A violation of the explicit provisions of Article 23 can, therefore, be of two different kinds. It can be caused
(a)by an ad hoc, specific action in a given dispute, or
(b)by measures of general applicability, e.g. legislation or regulations, providing for a certain process to be followed which does not, say, include recourse to the DSU dispute settlement system or abide by the rules and procedures of the DSU.”
Furthermore, as to Art. 23 of the DSU, the Panel in US-Import Measures (DS165) confirms the ruling developed in US-Sections 301-310, and states: 2
“The Panel believes that the adopted Panel Report o

n United States - Sections 301-310 of the Trade Act of 1974 (‘US - Section 301’) has confirmed the crucial importance that WTO Members place on the dispute settlement system of the WTO, as the exclusive means to redress any violations of any provisions of the WTO Agreement. This fundamental principle is embedded in Article 23 of the DSU: …
An important reason why Article 23 of the DSU must be interpreted with a view to prohibiting any form of unilateral action is because such unilateral actions threaten the stability and predictability of the multilateral trade system, a necessary component for "market conditions conducive to individual economic activity in national and global markets" which, in themselves, constitute a fundamental goal of the WTO. Unilateral actions are, therefore, contrary to the essence of the multilateral trade system of the WTO. As stated in the Panel Report on US - Section 301:
‘7.75 Providing security and

《WTO Dispute Settlement Mechanism(8)(第2页)》