WTO Dispute Settlement Mechanism(2)

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

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