WTO Dispute Settlement Mechanism(2)

XIII: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

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