Right to Pursue a Proceeding under the WTO
刘成伟
【关键词】Section One
【全文】
IThe 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
to carry out its obligations under this Agreement, or
（b）the application by another contracting party
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.
