WTO Dispute Settlement Mechanism(2)/刘成伟(4)
Art. XXIII:1 suggests that legal considerations need not be the sole focus of a complaint under the DSU, and that the DSU procedures can be invoked for the settlement of any trade dispute arising from any governmental measure, whether legal or illegal, and that arising from any situation, whether attributable to a government or not. A member demonstrating that a measure or any other situation nullified or impaired their benefits accruing to the covered agreements is given redress even if there was no failure to carry out the obligations. What’s more, a benefit doesn’t need to accrue directly to the party; an indirect benefit is protected as well. It seems that the aim of Art. XXIII:1 is to ensure that the negotiated balance of concessions is maintained even in situations that cannot be foreseen and that can consequently not be defined.
In practice, it is demonstrated that panels and the Appellate Body have broadly defined nullification or impairment of a benefit. The equation of “nullification or impairment” with “upsetting the competitive relationship” established between members has been consistently used. However, as a result of the divergence between the text of the provisions and the practice under it, the actual scope and function of the concept of nullification or impairment is often misunderstood. It is helpful for the clarification of this concept to go further into the standing issue before the DSB.
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