Chapter Ⅱ
Causes of Action before the DSB:
Art. XXIII of the GATT 1994
OUTLINE
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Section One Right to Pursue a Proceeding under the WTO
I The Concept of Nullification or Impairment
II The Standing Issue before the DSB
III Lack of Possible Compensation
IV Summary and Conclusions
Section Two Causes of Action before the DSB in General
I The Presumption in Violation Complaints
（i）Introduction
（ii）Practice under the GATT Jurisprudence
（iii）Rulings under the WTO Jurisprudence
（iv）A Summary
II An Overview of Non-Violation Complaints
（i）Related Texts
（ii）Relationship between Arts. XXIII:1(a) and XXIII:1(b)
（iii）Underlying Purpose of Art. XXIII:1(b)
（iv）Non-violation Claims in the Context of Principles of Customary International Law
（v）Appropriate Attitudes as to Non-Violation Remedy
III Presupposed Situation Complaints
Section Three Establishment of Non-violation Complaints
I Introduction
II Application of a Measure: Scope of Measures Covered by Art. XXIII:1(b)
（i）Measures short of Legally Binding Obligations
（ii）Measures Falling under Other Provisions of the GATT 1994
（iii）Measures Concerning the Protection of Human Health
（iv）Measures Continuingly Applied
III Existence of a Benefit: Protection of Legitimate Expectations
（i）Protection of Legitimate Expectations（PLE）
（ii）Non-foreseeability of Measures at Issue
（iii）Benefits in the Negotiations
（iv）Benefits under Successive Rounds
IV Nullification or Impairment of Benefit: Causality
V Summary and Conclusions
Section One
Right to Pursue a Proceeding under the WTO
I The Concept of Nullification or Impairment
Nullification or impairment is a most important concept developed in previous GATT dispute settlement system. It is incorporated into the GATT 1994 by the so-called incorporation clause (paragraph 1 of the GATT 1994) and goes on to operate as an important feature of the DSU under the WTO. Dispute settlement mechanism under the WTO continues to revolve around the concept of nullification or impairment. Art. 3.1 of the DSU requires Members to “affirm their adherence to the principles for the management of disputes heretofore applied under Articles XXII and XXIII of GATT 1947”.
According to Art. XXIII:1 of the GATT, a Member may have recourse to dispute settlement under the WTO when it considers that:
“... any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired or that the attainment of any objective of the Agreement is being impeded as the result of
（a）the failure of another contracting party [Member of the WTO] to carry out its obligations under this Agreement, or
（b）the application by another contracting party [Member of the WTO] of any measure, whether or not it conflicts with the provisions of this Agreement, or
（c）the existence of any other situation.”
As it implies, unlike that in many other dispute settlement procedures generally designed to resolve differences on the interpretation or application of the provisions under most international treaties, international responsibility in WTO law is not assessed only in terms of compliance with the specific provisions of the relevant agreements. Rather, it is the idea of nullification or impairment that determines whether rights to complain arise under the covered agreement.
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.
II The Standing Issue before the DSB
