Possible Object of a Complaint — Jurisdiction of Panels and the Appellate Body

5.2 Action and inaction; binding and non-binding acts of Members

If a complaint is based on a provision that prohibits certain actions (e.g. Article XI of GATT 1994 which prohibits, among other things, export restrictions), only positive action (e.g. a law, regulation or decision impeding the exportation of goods to other (WTO) Members or other forms of measures imposing restrictions) can violate such a provision. Inaction as such (the failure to adopt such a law, regulation or decision) could not breach this obligation.¹ The positive action in question could be a formal regulation, but also an informal instruction issued by the government, if, as in the Article XI example above, it effectively restricts exports.²

The situation is different under WTO Agreement provisions that do not prohibit certain behaviour, but rather require positive action. The TRIPS Agreement, for example, obliges Members in Article 25.1 to provide for the protection of new or original independently created industrial designs. In Article 26, it defines what this protection has to include. This is a typical obligation to take positive action by passing and applying a law granting this protection. Accordingly, inaction or an omission will be at the heart of a violation complaint which can be brought in a situation where a Member has either done nothing, i.e. not passed any laws, or where the laws passed and applied for some reason do not meet the required standards.

Obligations to take positive action are prominent within the TRIPS Agreement, but also exist in other covered agreements. Notification and transparency requirements (e.g. Article 12.2 of the Agreement on Safeguards or Article X:1 of GATT 1994) or consultation requirements (Article 12.3 of the Agreement on Safeguards) are other examples. What can become the object of a violation complaint, therefore, essentially depends on the obligations underlying the claim. Whatever activity can violate these obligations of the Members can also be challenged by a complainant.

Article 6.2 of the DSU, which obliges the complainant to identify in its request for the establishment of a panel the specific “measures” at issue, should not be understood to impose the requirement that a complaint can only be brought against a “measure” in the sense of a positive act, which would exclude inaction. The Appellate Body has dealt with the term “measure” in Article 6.2 of the DSU and stated, with reference to previous GATT and WTO jurisprudence, that a “measure” may be any act of a Member, whether or not legally binding, including a government’s non-binding administrative guidance and also an omission or a failure to act on the part of a Member.³ This must be so because Article 6.2 of the DSU applies to all complaints and, as pointed out above with the example of Article 25 of the TRIPS Agreement, complaints are also possible against the failure of a Member to take action where the WTO provision in question requires positive action.

Notes:

1. The failure to abrogate a law that impedes exports should not be qualified as omission in the technical sense, as the violation is found in the law in question, which is a positive act.  back to text

2. Panel Report, Japan — Semi-Conductors, para. 117  back to text

3. Appellate Body Report, Guatemala — Cement I, footnote 47  back to text