WTO Dispute Settlement Mechanism(2)/刘成伟

WTO Dispute Settlement Mechanism(2)/刘成伟(36)
In Japan-Film (DS44)3, the parties disagree on whether the measure at issue, referred to as “administrative guidance” by Japan, is a measure in the sense of Art. XXIII:1(b). Japan argues that measures for purposes of Art. XXIII:1(b) must either provide benefits or impose obligations, and that to impose obligations the measure must be a government policy or action which has imposed legally binding obligations or the substantive equivalent. The US position is that the term measure in Art. XXIII:1(b) should not be limited to refer only to legally binding obligations or their substantive equivalent. It argues in favor of a more encompassing definition of the term.
The Panel rules firstly that it is not useful for them to try to place specific instances of administrative guidance into one general category or another.4 They think it is necessary for them, as it was for GATT panels in the past, to examine each alleged “measure” to see whether it has the particular attributes required of a measure for Art. XXIII:1(b) purposes.

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