DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER
5
Possible Object of a Complaint
— Jurisdiction of Panels and the Appellate Body
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5.3
Only governmental measures of Members?
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.
