WTO Dispute Settlement Mechanism(2)/刘成伟(9)
IV Summary and Conclusions
According to Art. XXIII:1 of the GATT 1994, if a WTO member means to get redress by invoking the DSU procedures for the settlement of any trade dispute arising from any governmental measure or any situation, it must demonstrate that such measures or situations resulted in a nullification or impairment of any benefits accruing to it directly or indirectly under the covered agreements. As noted above, the concept of nullification or impairment is viewed as a change upsetting the competitive relationship between members. And it is demonstrated by the WTO practice that the need for a “legal interest” or an “economic interest” cannot be implied in the DSU or in any other provisions of the WTO Agreement. A Member's potential interests in trade in goods or services and its interest in a determination of rights and obligations under the WTO Agreements are each sufficient to establish a right to pursue a WTO dispute settlement proceeding.
In fact, a crucial point is the balance of economic relations based on particular negotiated results in terms of rights and obligations rather than the actual trade flows. Over the last decades of GATT/WTO dispute settlement practice, it has become a truism of GATT/WTO jurisprudence that, lack of actual trade cannot be determinative for a finding that no violation of a provision occurred because it cannot be excluded that the absence of trade is the result of an illegal measure. In this respect, as next section will show, related closely to the standing issue, a presumption has been explicitly provided for in the Art. 3.8 of the DSU, pursuant to which nullification or impairment is presumed once a violation is established.
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