WTO Dispute Settlement Mechanism(2)

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, Ar

《WTO Dispute Settlement Mechanism(2)(第4页)》