WTO Dispute Settlement Mechanism(7)/刘成伟(14)
Arts. XXII and XXIII of the GATT 1994 serve as the basis for consultations and dispute settlement under the GATT 1994 and, through incorporation by reference, under most of the other agreements in Annex 1A to the WTO Agreement. According to Art. XXIII:1(a) of the GATT 1994, a Member can bring a dispute settlement claim against another Member when it considers that a benefit accruing to it under the GATT 1994 is being nullified or impaired, or that the achievement of any objective of the GATT 1994 is being impeded, as a result of the failure of that other Member to carry out its obligations under that Agreement. Do these provisions serve as legal basis for challenges against legislation as such other than its application in specific cases, either?
In this respect, the Appellate 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 obligations, they rule: 4
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