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DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER 4

Legal basis for a dispute

This chapter will explain the conditions under which Members of the (WTO) can invoke the provisions of the dispute settlement system; that is, what constitutes a valid basis for a complaint by one Member against another Member.

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4.1 Legal provisions in the multilateral trade agreements and the DSU

DSU — Reference to the “covered agreements”

Article 1.1 of the DSU stipulates that its rules and procedures apply to “disputes brought pursuant to the consultation and dispute settlement provisions of the ... ‘covered agreements’”. The basis or cause of action for a WTO dispute must, therefore, be found in the “covered agreements” listed in Appendix 1 to the DSU, namely, in the provisions on “consultation and dispute settlement” contained in those WTO Agreements. In other words, it is not the DSU, but rather the WTO Agreements that contain the substantive rights and obligations of WTO Members, which determine the possible grounds for a dispute.

Dispute settlement provisions in the covered agreements  back to top

These provisions on “consultation and dispute settlement” are:

• Articles XXII and XXIII of GATT 1994;
    
• Article 19 of the Agreement on Agriculture;
    
• Article 11 of the Agreement on the Application of Sanitary and Phytosanitary Measures;
    
• Article 8.10 of the Agreement on Textiles and Clothing;
    
• Article 14 of the Agreement on Technical Barriers to Trade;
    
• Article 8 of the Agreement on Trade-Related Investment Measures;
    
• Article 17 of the Agreement on Implementation of Article VI of GATT 1994¹;
    
• Article 19 of the Agreement on Implementation of Article VII of GATT 1994²;
    
• Articles 7 and 8 of the Agreement on Preshipment Inspection;
    
• Articles 7 and 8 of the Agreement on Rules of Origin;
    
• Article 6 of the Agreement on Import Licensing Procedures;
    
• Articles 4 and 30 of the Agreement on Subsidies and Countervailing Measures;
    
• Article 14 of the Agreement on Safeguards;
    
• Articles XXII and XXIII of the General Agreement on Trade in Services;
    
• Article 64 of the Agreement on Trade-Related Aspects of Intellectual Property Rights.
    

Many of these provisions simply refer to Articles XXII and XXIII of GATT 1994³, or have been drafted using Articles XXII and XXIII as a model. Article XXIII deserves being considered first and given special attention. Obviously, a dispute can be, and often is, brought under more than one covered agreement. In such a case, the question of the proper legal basis has to be assessed separately for the claims made under different agreements.

Notes:

1. Commonly called the Anti-Dumping Agreement  back to text

2. Commonly called the Customs Valuation Agreement  back to text

3. This is the case for all the provisions listed above, except: Article 8.10 of the Agreement on Textiles and Clothing; Article 17 of the Agreement on Implementation of Article VI of GATT 1994; Article 19 of the Agreement on Implementation of Article VII of GATT 1994; Article 4 of the Agreement on Subsidies and Countervailing Measures and Articles XXII and XXIII of the General Agreement on Trade in Services.  back to text

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