Legal basis for a dispute

4.4 Types of dispute in the GATS

The dispute settlement provisions of the GATS (which is contained in Annex 1B of the WTO Agreement) are contained in Articles XXII and XXIII of that Agreement. The GATS only provides for two types of complaints, the violation complaint and the non-violation complaint.¹ There is no situation complaint and the GATT 1994 clause referring to the scenario that “the attainment of any objective of the Agreement is being impeded” also does not exist.

As regards the violation complaint, Article XXIII:1 of the GATS provides that a WTO Member that considers that another Member has failed to carry out its obligations under the GATS may have recourse to the DSU. The GATS thus abandoned the notion of nullification or impairment as a requirement in addition to the failure to carry out obligations. Consequently, Article 3.8 of the DSU is of no relevance to complaints brought under the GATS.

The non-violation complaint of GATS resembles that of GATT 1994 because a Member can allege nullification or impairment of a benefit it could reasonably expect to accrue to it under a specific commitment of another Member in the absence of a conflict with the provisions of GATS (Article XXIII:3).

Notes:

1. These are the two types of complaint that play a practical role in GATT 1994.  back to text