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> Article XXIII:1(b) of the GATT 1994 — General
> Article XXIII:1(b) of the GATT 1994 — “any measure”
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N.2.1 Article XXIII:1(b) of the GATT 1994 — General
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N.2.1.1 EC — Asbestos,
paras. 185-186
(WT/DS135/AB/R)
… Article XXIII:1(a) sets forth a cause of action for a claim that
a Member has failed to carry out one or more of its obligations under
the GATT 1994. A claim under Article XXIII:1(a), therefore, lies when a
Member is alleged to have acted inconsistently with a provision of the
GATT 1994. Article XXIII:1(b) sets forth a separate cause of action for
a claim that, through the application of a measure, a Member has “nullified
or impaired” “benefits” accruing to another Member, “whether or
not that measure conflicts with the provisions” of the GATT 1994.
Thus, it is not necessary, under Article XXIII:1(b), to establish that
the measure involved is inconsistent with, or violates, a provision of
the GATT 1994. Cases under Article XXIII:1(b) are, for this reason,
sometimes described as “non-violation” cases; we note, though, that
the word “non-violation” does not appear in this provision. The
purpose of this rather unusual remedy was described by the panel in European
Economic Community — Payments and Subsidies Paid to Processors and
Producers of Oilseeds and Related Animal-Feed Proteins (“EEC
— Oilseeds”) in the following terms:
The idea underlying [the provisions of Article XXIII:1(b)] is that
the improved competitive opportunities that can legitimately be expected
from a tariff concession can be frustrated not only by measures
proscribed by the General Agreement but also by measures consistent with
that Agreement. In order to encourage contracting parties to make tariff
concessions they must therefore be given a right of redress when a
reciprocal concession is impaired by another contracting party as a
result of the application of any measure, whether or not it conflicts
with the General Agreement. (emphasis added) [BISD 37S/86, para. 144]
Like the panel in Japan — Measures Affecting Consumer
Photographic Film and Paper (“Japan — Film”)
[Panel Report, para. 10.37], we consider that the remedy in Article
XXIII:1(b) “should be approached with caution and should remain an
exceptional remedy”. …
N.2.2 Article XXIII:1(b) of the GATT 1994
— “any measure” back to top
N.2.2.1 EC — Asbestos, paras. 187-188
(WT/DS135/AB/R)
… The wording of the provision, therefore, clearly states that a
claim may succeed, under Article XXIII:1(b), even if the measure “conflicts”
with some substantive provisions of the GATT 1994. It follows that a
measure may, at one and the same time, be inconsistent with, or
in breach of, a provision of the GATT 1994 and, nonetheless, give
rise to a cause of action under Article XXIII:1(b). Of course, if a
measure “conflicts” with a provision of the GATT 1994, that measure
must actually fall within the scope of application of that provision of
the GATT 1994. We agree with the Panel that this reading of Article
XXIII:1(b) is consistent with the panel reports in Japan — Film and
EEC — Oilseeds, which both support the view that Article
XXIII:1(b) applies to measures which simultaneously fall within the
scope of application of other provisions of the GATT 1994. …
… The use of the word “any” suggests that measures of all types
may give rise to such a cause of action. The text does not distinguish
between, or exclude, certain types of measure. Clearly, therefore, the
text of Article XXIII:1(b) contradicts the European Communities’
argument that certain types of measure, namely, those with health
objectives, are excluded from the scope of application of Article
XXIII:1(b).
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