장승화 (2017). WTO 분쟁해결절차상 “정부조치” 개념의 재조명. 통상법률, (137), pp. 9-42
Seung Wha Chang (2017). Revisiting the Concept of “Government Measures under the WTO Dispute Settlement : Can Conduct by Private Parties Be Challenged?
[ABSTRACT]
Revisiting the Concept of “Government Measures under the WTO Dispute Settlement: Can Conduct by Private Parties Be Challenged?
This paper aims to define the concept of “measures by WTO Members”, which can be challenged under the WTO dispute settlement procedures. This concept captures not only any act or omission by a WTO Member, but also conduct by private parties that can be attributable to a WTO Member. The main focus of this paper is to delineate the criteria for under what circumstances such attribution can be recognized. For this purpose, this paper comprehensively reviews all the GATT and WTO jurisprudence (Panel and Appellate Body Reports) that touched upon the concept of ‘measures' in the context where seemingly private parties' conduct has been challenged under the GATT/WTO dispute settlement. To avoid making this analysis too abstract, this paper attempts to apply the criteria drawn from the prior jurisprudence to China's retaliatory measures against South Korea's recent decision to deploy THAAD facilities, which was made against possible missile attacks by North Korea. This paper reaches a conclusion that, in light of the unique relationship between the Chinese government and its non-governmental entities including private enterprises, China's THAAD-related retaliatory measures can be challenged under the WTO dispute settlement in reliance on the WTO evidentiary rules that allow proof of the key facts (attribution) by use of circumstantial evidence. The analysis provided for in this paper may contribute to preventing circumvention of WTO obligations by WTO Members by use of a mask of private parties' conduct in the future.
Key words government measures, measures by WTO Members, attribution, WTO filing, THAAD retaliatory measures, GATS, conduct by private bodies, ILC Draft Articles on State Responsibility, public bodies, unwritten measures, on-going conduct
장승화 (2017). WTO 분쟁해결절차상 “정부조치” 개념의 재조명. 통상법률, (137), pp. 9-42
Seung Wha Chang (2017). Revisiting the Concept of “Government Measures under the WTO Dispute Settlement : Can Conduct by Private Parties Be Challenged?
[ABSTRACT]
Revisiting the Concept of “Government Measures under the WTO Dispute Settlement: Can Conduct by Private Parties Be Challenged?
This paper aims to define the concept of “measures by WTO Members”, which can be challenged under the WTO dispute settlement procedures. This concept captures not only any act or omission by a WTO Member, but also conduct by private parties that can be attributable to a WTO Member. The main focus of this paper is to delineate the criteria for under what circumstances such attribution can be recognized. For this purpose, this paper comprehensively reviews all the GATT and WTO jurisprudence (Panel and Appellate Body Reports) that touched upon the concept of ‘measures' in the context where seemingly private parties' conduct has been challenged under the GATT/WTO dispute settlement. To avoid making this analysis too abstract, this paper attempts to apply the criteria drawn from the prior jurisprudence to China's retaliatory measures against South Korea's recent decision to deploy THAAD facilities, which was made against possible missile attacks by North Korea. This paper reaches a conclusion that, in light of the unique relationship between the Chinese government and its non-governmental entities including private enterprises, China's THAAD-related retaliatory measures can be challenged under the WTO dispute settlement in reliance on the WTO evidentiary rules that allow proof of the key facts (attribution) by use of circumstantial evidence. The analysis provided for in this paper may contribute to preventing circumvention of WTO obligations by WTO Members by use of a mask of private parties' conduct in the future.
Key words government measures, measures by WTO Members, attribution, WTO filing, THAAD retaliatory measures, GATS, conduct by private bodies, ILC Draft Articles on State Responsibility, public bodies, unwritten measures, on-going conduct