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

The previous chapter explored what constitutes a valid basis for a complaint in the (WTO) dispute settlement system and explained the different types of complaints available under the covered agreements. The present chapter addresses the jurisdiction of WTO panels and the Appellate Body by exploring the question of the object of the complaint. To put it more simply: against what can the complaint be directed? For example, in a violation complaint, what types of action by a Member are covered by a commitment in a covered agreement? Can only acts of administrative authorities be challenged or also legislative acts? Can the complainant invoke the dispute settlement system only against legally binding acts of Members or also against non-binding acts taken by the Members’ authorities? Can the challenge only be directed against governmental conduct or also against behaviour of private individuals? Can it be directed only against positive action or also against omissions, i.e. the failure to act?

Answers to these questions are important because they serve to delineate the jurisdiction of WTO panels and the Appellate Body.

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5.1 Article 1.1 of the DSU

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One could give a simple and formalistic answer to the question of jurisdiction: the WTO dispute settlement system has jurisdiction over any dispute between WTO Members arising under any of the covered agreements (Article 1.1 of the DSU). How the object of a dispute is viewed in legal terms depends on the content of the agreements (i.e. on the type of complaint possible under the agreement in question, combined with the substantive provision in question). For example, a violation complaint under Article X, Y or Z of GATT 1994 can be directed against anything that might violate those provisions. In such a case, a panel would probably not spend any time deciding whether the complainant is challenging a proper measure, but rather would simply assess whether what is alleged to violate the invoked article actually does so. There is no doubt that the panel would have jurisdiction to answer that question.

At the same time, it is possible conceptually to categorize the possible objects of a complaint on the basis of the common structure of the provisions of the covered agreements. Such categorization follows below.



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