WTO Dispute Settlement Mechanism(2)/刘成伟(31)
In the first type of situation, Art. XXIII:1(c) has never been used for the purpose its drafters had in mind, namely to permit the Parties or Members to suspend the application of obligations under the GATT/WTO in response to an international economic emergency. In the case of an invocation of Art. XXIII:1(c) for this purpose, there is no complainant or respondent; there is merely a proposal to adjust obligations to respond to a situation that members are unable to prevent. For this reason, matters related to a situation might, according to Art. XXIII:2, be referred to the DSB without prior consultations with another member. The relevant passage states in Art. XXIII:2 that, “[i]f no satisfactory adjustment is effected between the contracting parties concerned within a reasonable time, or if the difficulty is of the type described in paragraph 1(c) of this Article, the matter may be referred to the CONTRACTING PARTIES”.
However, under the procedures evolved under Art. 26.2 of the DSU, the existence of a respondent and prior consultations with that respondent seem to be presupposed. For the three causes of action before the DSB seem to be handled through investigations by members acting jointly. It therefore makes sense to combine the procedures for invocations of all three subparagraphs of Art. XXIII:1. Thus the procedures of the DSU don’t seem to effectively apply to Art. XXIII:1(c) invocations involving emergencies. International economic emergencies of the type the drafters had in mind can therefore not be meaningfully handled through the DSU procedures. The only procedure at members’ disposal would therefore now be the waiver procedure of Article Ⅸ:3 of the WTO Agreement.
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