WTO Dispute Settlement Mechanism(7)

e Body in US-1916 Act (DS136/DS162) rules that, “[p]rior to the entry into force of the WTO Agreement, it was firmly established that Article XXIII:1(a) of the GATT 1947 allowed a Contracting Party to challenge legislation as such, independently from the application of that legislation in specific instances. While the text of Article XXIII does not expressly address the matter, panels consistently considered that, under Article XXIII, they had the jurisdiction to deal with claims against legislation as such”. This ruling is confirmed by the WTO practice. For example, the Panel in US-Sections 301-310 (DS152) thinks that, legislation as such may also breach WTO obligat

ions, they rule: 4
“As a general proposition, GATT acquis, confirmed in Article XVI:4 of the WTO Agreement and recent WTO panel reports, make abundantly clear that legislation as such, independently from its application in specific cases, may breach GATT/WTO obligations:
(a)In GATT jurisprudence, to give one example, legislation providing for tax discrimination against imported products was found to be GATT inconsistent even before it had actually been applied to specific products and thus before any given product had actually been discriminated against.
(b)Article XVI:4 of the WTO Agreement explicitly confirms that legislation as such falls within the scope of possible WTO violations. It provides as follows: ‘Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements.’
The three types of measures explicitly made subject to the obligations imposed in the WTO agreements – ‘laws, regulations and administrative procedures’ - are measures that are applicable generally; not measures taken necessarily in a specific case or dispute. Article XVI:4, though not expanding the material obligations under WTO agreements, expands the type of measures made subject to these obligations.
(c)Recent WTO panel reports confirm, too, that legislation as such, independently from its application in a specific case, can be inconsistent with WTO rules.”
Clearly, it is established that legislation as such, independently from its application in a specific case, can be inconsistent with WTO rules and therefore can be brought before the DSB. However, what role panels may play when called upon to resolve settlement concerning legislation as such?
As noted above, panels may have jurisdiction as to domestic law once brought before them appropriately. In practice, panels often have to address domestic laws, In respect of the examination of domestic or municipal law by WTO panels, in some circumstances, it is clear that an examination of the relevant aspects of municipal law is essential to determining whether Members to a dispute have complied with their obligations under the covered agreements.
However, as stressed in the DSB practice, panels’ mandate is to examine municipal law solely for the purpose of determining whether Members meet their WTO obligations. In doing so, panels do not interpret municipal law “as such”, the way they would, say, interpret provisions of the covered agreements. Panels are, instead, called upon by the DSB to the meaning of domestic law as factual elements and to check whether these factual elements constitute conduct by the Members contrary to their WTO obligations. The rules on burden of proof for the establishment of

《WTO Dispute Settlement Mechanism(7)(第6页)》