Challenges and Prospects for the WTO
Posted: 3 May 2018
Date Written: 2005
Practitioners who have appeared before WTO panels or the Appellate Body will undoubtedly find familiar the question in the title of this chapter. The measure at issue is a central element in any dispute brought to the WTO. According to Article 3.3 of the DSU, one of the purposes of the WTO dispute settlement system is ‘[t]he prompt settlement of situations in which a Member considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another Member’. The measure challenged in a particular dispute will determine the scope of the panel’s jurisdiction and the factual and legal issues to be resolved. If the measure is not properly described in a complainant’s request for consultations or request for establishment of a panel, this may cause problems for the complainant as the dispute proceeds. The measure at issue is also important for implementation. Specifically, the measure at issue in a given dispute is generally the measure that will need to be modified or withdrawn if it is found to be inconsistent with WTO obligations. Issues related to the identification of the ‘measure’ have been raised in a number of disputes since the WTO dispute settlement system was established in 1995. This chapter provides an overview of some of these issues. We begin by looking at the measures that are ‘challengeable’ in WTO disputes according to the WTO agreements, as interpreted by panels and the Appellate Body. Next, we examine and classify the types of measures that have in fact been challenged to date. We then consider how the relevant measure is defined in the context of a specific dispute. Finally, we offer a few concluding remarks.
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