DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER 5
Possible Object of a Complaint — Jurisdiction of Panels and the Appellate Body
As a general rule, only government measures can be the object of (WTO) complaints.
Concerning violation complaints, it is recalled that the WTO Agreement is an international agreement binding the WTO Members under public international law. The obligations contained in the WTO Agreement, as such, therefore bind only the signatory States and separate customs territories. It follows that non-governmental, private actors cannot infringe these obligations. However, there can be instances in which certain private behaviour has strong ties to some governmental action. Whether this permits the attribution of the private behaviour to the Member in question, and therefore is actionable under the WTO, will obviously depend on the particularities of each case.1
As regards the non-violation complaint, Article XXIII:1(b) of GATT 1994 requires the application of a measure by another Member. A purely private activity without government involvement would therefore not satisfy that requirement.2 However, in practice, things are not always so clear-cut, and there have been several trade disputes involving private actions having some governmental connection or endorsement. On the basis of the panel reports in such disputes, the panel in Japan — Film defined “sufficient government involvement” as the decisive criterion as to whether a private action may be deemed to be a governmental “measure”.3
Finally, a situation complaint could arguably apply to situations in which private parties have taken some action against which the Member did not act but this has never been tested in either the GATT or WTO dispute settlement systems.