WTO Dispute Settlement Mechanism(2)/刘成伟(79)
(1) As to the application of a measure, the term “measure” in Art. XXIII:1(b) and Art. 26.1 of the DSU, as elsewhere in the WTO Agreements, refers only to policies or actions of attributable to governments, not those of private parties. However, in this regard, it is important to approach the issue of whether the “measures” in dispute are private or attributable to the Government with particular care, sensitive to the possibility that at times it may not be possible to distinguish with great precision a bright-line test of a measure and that possibility will need to be examined on a case-by-case basis. In practice, panels under the GATT/WTO have often taken an expansive view of what constitutes a measure, bearing in mind that the applicant must, in any event, demonstrate that the measure does in fact result in nullification or impairment of expected benefits.
Furthermore, Art. XXIII:1(b) applies to measures which simultaneously falls within the scope of application of other provisions of the GATT 1994. Also, the use of the word “any” in Art. XXIII:1(b) suggests that measures of all types may give rise to such a cause of action. In practice, in any event, an attempt to draw the distinction between various types of measures would be very difficult. Art. XXIII:1(b) must be applied in such a way as to protect the balance of rights and duties negotiated. However, in any event, it remains incumbent on the complaining Member to clearly demonstrate how the measure at issue results in or causes nullification or impairment of benefits.
总共85页
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