WTO Dispute Settlement Mechanism(2)/刘成伟(35)
II Application of a Measure: Scope of Measures Covered by Art. XXIII:1(b)
In analyzing the elements of a non-violation claim, a logical starting point is the requirement that there be an application of a measure by a WTO Member. In this regard, in most cases, the issue is not whether or not a measure in fact exists, but rather whether such measures have contributed in a way to the nullification or impairment of benefits accruing to the applicant within the terms of Art. XXIII:1(b).
（i）Measures short of Legally Binding Obligations
As the WTO Agreement is an international agreement, in respect of which only national governments and separate customs territories are directly subject to obligations, it follows by implication that the term measure in Art. XXIII:1(b) and Art. 26.1 of the DSU, as elsewhere in the WTO Agreement, refers only to policies or actions of governments, not those of private parties. But while this “truth” may not be open to question, there have been a number of trade disputes in relation to which panels have been faced with making sometimes difficult judgments as to the extent to which what appear on their face to be private actions may nonetheless be attributable to a government because of some governmental connection to or endorsement of those actions. In this respect, GATT/WTO cases demonstrate that the fact that an action is taken by private parties does not rule out the possibility that it may be deemed to be governmental if there is sufficient government involvement with it. In short, the ordinary meaning of a measure in Art. XXIII:1(b) certainly encompasses a law or regulation enacted by a government according to Art. XVI:4 of the WTO Agreement. But it seems broader than that and may include other governmental actions short of legally enforceable enactments.
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