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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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