WTO Dispute Settlement Mechanism(2)/刘成伟

WTO Dispute Settlement Mechanism(2)/刘成伟(8)
The Arbitrators agree the complainants’ argument, and rule that, Art. XXIII:1 of the GATT 1994 and Art. 3.3 of the DSU do not establish a procedural requirement. As found by the Arbitrators, these provisions concern the initiation of a WTO dispute settlement proceeding where a Member considers benefits directly or indirectly accruing to it were nullified or impaired. Such an initial decision on whether or not to raise a complaint is necessarily the result of a subjective and strategic consideration from the individual perspective of a Member. However, a decision on whether the assertion of nullification or impairment by an individual Member will be warranted and justified in light of WTO law is a different decision, taken by a panel or the Appellate Body from the objective benchmark of the agreements covered by the WTO. Furthermore, the Arbitrators rule that the review of the level of nullification or impairment by Arbitrators from the objective benchmark foreseen by Art. 22 of the DSU is a separate process, independent from the finding of infringements of WTO rules by a panel or the Appellate Body. 3

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