WTO Dispute Settlement Mechanism(2)/刘成伟(21)
（ii）Relationship between Arts. XXIII:1(a) and XXIII:1(b)
In EC –Asbestos (DS135), it is the first occasion for the Appellate Body to examine Art. XXIII:1(b) of the GATT 1994. For this reason, the Appellate Body think there it necessary for them to make certain preliminary observations about the relationship between Arts. XXIII:1(a) and XXIII:1(b) of the GATT 1994.
In this respect, the Appellate Body rules that, “Article XXIII:1(a) sets forth a cause of action for a claim that a Member has failed to carry out one or more of its obligations under the GATT 1994. A claim under Article XXIII:1(a), therefore, lies when a Member is alleged to have acted inconsistently with a provision of the GATT 1994. Article XXIII:1(b) sets forth a separate cause of action for a claim that, through the application of a measure, a Member has ‘nullified or impaired’ ‘benefits’ accruing to another Member, ‘whether or not that measure conflicts with the provisions’ of the GATT 1994. Thus, it is not necessary, under Article XXIII:1(b), to establish that the measure involved is inconsistent with, or violates, a provision of the GATT 1994. Cases under Article XXIII:1(b) are, for this reason, sometimes described as ‘non-violation’ cases, though, the word ‘Non-violation’ does not appear in this provision.”7
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