Chapter VIII
Strengthening of the Multilateral System
Art. 23 of the DSU deals, as indicated by its title, with the “Strengthening of the Multilateral System”. Its overall design is to prevent WTO Members from unilaterally resolving their disputes in respect of WTO rights and obligations. It does so by obligating Members to follow the multilateral rules and procedures of the DSU. Art. 23 of the DSU reads:
“Strengthening of the Multilateral System
1. When Members seek the redress of a violation of obligations or other nullification or impairment of benefits under the covered agreements or an impediment to the attainment of any objective of the covered agreements, they shall have recourse to, and abide by, the rules and procedures of this Understanding.
2. In such cases, Members shall:
(a) not make a determination to the effect that a violation has occurred, that benefits have been nullified or impaired or that the attainment of any objective of the covered agreements has been impeded, except through recourse to dispute settlement in accordance with the rules and procedures of this Understanding, and shall make any such determination consistent with the findings contained in the panel or Appellate Body report adopted by the DSB or an arbitration award rendered under this Understanding;
(b) follow the procedures set forth in Article 21 to determine the reasonable period of time for the Member concerned to implement the recommendations and rulings; and
(c) follow the procedures set forth in Article 22 to determine the level of suspension of concessions or other obligations and obtain DSB authorization in accordance with those procedures before suspending concessions or other obligations under the covered agreements in response to the failure of the Member concerned to implement the recommendations and rulings within that reasonable period of time.”
In this section, to end this book, the author means to take a precise overlook on the nature of obligations under Art. 23 of the DSU as a whole by referring to two panels’ reports in part. In this respect, the Panel in US-Sections 301-310 (DS152) rules: 1
“On this basis [provision of Article 23], we conclude as follows:
(a)It is for the WTO through the DSU process - not for an individual WTO Member - to determine that a WTO inconsistency has occurred (Article 23.2(a)).
(b)It is for the WTO or both of the disputing parties, through the procedures set forth in Article 21 - not for an individual WTO Member - to determine the reasonable period of time for the Member concerned to implement DSB recommendations and rulings (Article 23.2(b)).
(c)It is for the WTO through the procedures set forth in Article 22 - not for an individual WTO Member - to determine, in the event of disagreement, the level of suspension of concessions or other obligations that can be imposed as a result of a WTO inconsistency, as well as to grant authorization for the actual implementation of these suspensions.
Article 23.2 clearly, thus, prohibits specific instances of unilateral conduct by WTO Members when they seek redress for WTO inconsistencies in any given dispute. This is, in our view, the first type of obligations covered under Article 23.
Article 23.1 is not concerned only with specific instances of violation. It prescribes a general duty of a dual nature. First, it imposes on all Members to ‘have recourse to’ the multilateral process set out in the DSU when they seek the redress of a WTO inconsistency. In these circumstances, Members have to have recourse to the DSU dispute settlement system to the exclusion of any other system, in particular a system of unilateral enforcement of WTO rights and obligations. This, what one could call ‘exclusive dispute resolution clause’, is an important new element of Members' rights and obligations under the DSU. Second, Article 23.1 also prescribes that Members, when they have recourse to the dispute settlement system in the DSU, have to ‘abide by’ the rules and procedures set out in the DSU. This second obligation under Article 23.1 is of a confirmatory nature: when having recourse to the DSU Members must abide by all DSU rules and procedures.
Turning to the second paragraph under Article 23, Article 23.2 - which, on its face, addresses conduct in specific disputes - starts with the words ‘[i]n such cases’. It is, thus, explicitly linked to, and has to be read together with and subject to, Article 23.1.
Indeed, two of the three prohibitions mentioned in Article 23.2 - Article 23.2(b) and (c) - are but egregious examples of conduct that contradicts the rules and procedures of the DSU which, under the obligation in Article 23.1 to ‘abide by the rules and procedures’ of the DSU, Members are obligated to follow. These rules and procedures clearly cover much more than the ones specifically mentioned in Article 23.2. There is a great deal more State conduct which can violate the general obligation in Article 23.1 to have recourse to, and abide by, the rules and procedures of the DSU than the instances especially singled out in Article 23.2.
Article 23 interdicts, thus, more than action in specific disputes, it also provides discipline for the general process WTO Members must follow when seeking redress of WTO inconsistencies. A violation of the explicit provisions of Article 23 can, therefore, be of two different kinds. It can be caused
(a)by an ad hoc, specific action in a given dispute, or
(b)by measures of general applicability, e.g. legislation or regulations, providing for a certain process to be followed which does not, say, include recourse to the DSU dispute settlement system or abide by the rules and procedures of the DSU.”
Furthermore, as to Art. 23 of the DSU, the Panel in US-Import Measures (DS165) confirms the ruling developed in US-Sections 301-310, and states: 2
“The Panel believes that the adopted Panel Report on United States - Sections 301-310 of the Trade Act of 1974 (‘US - Section 301’) has confirmed the crucial importance that WTO Members place on the dispute settlement system of the WTO, as the exclusive means to redress any violations of any provisions of the WTO Agreement. This fundamental principle is embedded in Article 23 of the DSU: …
An important reason why Article 23 of the DSU must be interpreted with a view to prohibiting any form of unilateral action is because such unilateral actions threaten the stability and predictability of the multilateral trade system, a necessary component for "market conditions conducive to individual economic activity in national and global markets" which, in themselves, constitute a fundamental goal of the WTO. Unilateral actions are, therefore, contrary to the essence of the multilateral trade system of the WTO. As stated in the Panel Report on US - Section 301:
‘7.75 Providing security and predictability to the multilateral trading system is another central object and purpose of the system which could be instrumental to achieving the broad objectives of the Preamble. Of all WTO disciplines, the DSU is one of the most important instruments to protect the security and predictability of the multilateral trading system and through it that of the market-place and its different operators. DSU provisions must, thus, be interpreted in the light of this object and purpose and in a manner which would most effectively enhance it.’
The structure of Article 23 is that the first paragraph states the general prohibition or general obligation, i.e. when Members seek the redress of a WTO violation, they shall do so only through the DSU. This is a general obligation. Any attempt to seek ‘redress’ can take place only in the institutional framework of the WTO and pursuant to the rules and procedures of the DSU.
The prohibition against unilateral redress in the WTO sectors is more directly provided for in the second paragraph of Article 23. From the ordinary meaning of the terms used in the chapeau of Article 23.2 (‘in such cases, Members shall’), it is also clear that the second paragraph of Article 23 is ‘explicitly linked to, and has to be read together with and subject to, Article 23.1’. That is to say, the specific prohibitions of paragraph 2 of Article 23 have to be understood in the context of the first paragraph, i.e. when such action is performed by a WTO Member with a view to redressing a WTO violation.
We also agree with the US - Section 301 Panel Report that Article 23.2 contains ‘egregious examples of conduct that contradict the rules of the DSU’ and which constitute more specific forms of unilateral actions, otherwise generally prohibited by Article 23.1 of the DSU.
‘[t]hese rules and procedures [Article 23.1] clearly cover much more than the ones specifically mentioned in Article 23.2. There is a great deal more State conduct which can violate the general obligation in Article 23.1 to have recourse to, and abide by, the rules and procedures of the DSU than the instances especially singled out in Article 23.2.’
The same Panel identified a few examples of such instances where the DSU could be violated contrary to the provisions of Article 23. Each time a Member seeking the redress of a WTO violation is not abiding by a rule of the DSU, it thus violates Article 23.1 of the DSU.
In order to verify whether individual provisions of Article 23.2 have been infringed (keeping in mind that the obligation to also observe other DSU provisions can be brought under the umbrella of Article 23.1), we must first determine whether the measure at issue comes under the coverage of Article 23.1. In other words, we need to determine whether Article 23 is applicable to the dispute before addressing the specific violations envisaged in the second paragraph of Article 23 of the DSU or elsewhere in the DSU.
Article 23.1 of the DSU provides that the criterion for determining whether Article 23 is applicable is whether the Member that imposed the measure was ‘seeking the redress of’ a WTO violation. …
The term ‘seeking’ or ‘to seek’ is defined in the Webster New Encyclopedic Dictionary as: ‘to resort to, … to make an attempt, try’. This term would therefore cover situations where an effort is made to redress WTO violations (whether perceived or WTO determined violations). The term ‘to redress’ is defined in the New Shorter Oxford English Dictionary as ‘repair (an action); atone for (a misdeed); remedy or remove; to set right or rectify (injury, a wrong, a grievance etc.); obtaining reparation or compensation’. The term ‘redress’ is defined in the New Shorter Oxford English Dictionary as: ‘reparation of or compensation for a wrong or consequent loss; remedy for or relief from some trouble; correction or reformation of something wrong’. The term 'redress' implies, therefore, a reaction by a Member against another Member, because of a perceived (or WTO determined) WTO violation, with a view to remedying the situation.
Article 23.1 of the DSU prescribes that when a WTO Member wants to take any remedial action in response to what it views as a WTO violation, it is obligated to have recourse to and abide by the DSU rules and procedures. In case of a grievance on a WTO matter, the WTO dispute settlement mechanism is the only means available to WTO Members to obtain relief, and only the remedial actions envisaged in the WTO system can be used by WTO Members. The remedial actions relate to restoring the balance of rights and obligations which form the basis of the WTO Agreement, and include the removal of the inconsistent measure, the possibility of (temporary) compensation and, in last resort, the (temporary) suspension of concessions or other obligations authorised by the DSB (Articles 3.7 and 22.1 of the DSU). The latter remedy is essentially retaliatory in nature.”
【NOTE】:
1. See, in detail, WT/DS152/R/7.38-7.46.
2. See, in detail, WT/DS165/R/6.13-6.23.
List of References
1 Sources of Legal Texts: http://www.wto.org; WTO Secretariat: The WTO Dispute Settlement Procedures (Second Edition), CAMBRIDGE UNIVERSITY PRESS, 2001.
天津市提高固定资产投资管理工作效率的若干规定
天津市人民政府
天津市提高固定资产投资管理工作效率的若干规定
天津市政府
第一条 为进一步提高固定资产投资项目审批和计划管理工作的效率，根据国家和本市有关规定，特制定本规定。
第二条 本规定适用于市级投资计划主管部门和按照市下放部分项目审批权限规定具有投资审批管理权的区、县、局及有关单位。市级计划主管部门包括：市计委、市经委、市建委、市农委、市“实益”办公室、天津经济技术开发区管理委员会。市计委负责全市固定资产投资管理的综
合平衡和宏观调控工作。
第三条 关于基本建设和技术改造项目的审批权限。
（一）项目建议书（立项报告）和可行性研究报告的审批。各区、县、局及有关单位负责审批的权限是：自行筹措建设资金，总投资在一千万元以下的能源、交通、基础原材料项目，五百万元以下的其他生产性项目和非生产性项目以及引进技术、设备在三百万美元以下的生产性项目；
天津新技术产业园区管委会有权审批总投资在二千万元以下的项目。超过上述限额的项目，需报市计划主管部门按各自的分工负责审批。其中需报国家审批的基本建设大中型项目和技术改造限额以上项目，统一报送市计委，由市计委负责组织初审后呈报国家有关部门审批。
（二）初步设计的审批。总投资在三千万元以上的基本建设、技术改造和民用工程建设项目，由市建委负责会同有关部门审批；三千万元以下的项目，按照谁投资谁审查的原则，由各部门、各区县自行组织审批。
（三）外商投资企业项目的审批权限，按照一九九三年七月五日发布的市政府第1号令的有关规定执行。
（四）对于投资较少、建设内容比较简单的项目，在项目审批程序上可按照市有关规定适当简化。
第四条 各级投资管理部门要本着简化、务实、高效的原则，在申请文件齐备的前提下，项目审批和计划管理工作实行限期办理制度：
（一）项目建议书和可行性研究报告的审批。按规定由各区、县、局负责审批的和目，自受理之日起，项目建议书在七个工作日内、可行性研究报告在十个工作日内审定办复。由市计划主管部门审批的项目，自受理之日起，项目建议书在十个工作日内、可行性研究报告在十五个工作日
内审定办复。基本建设大中型项目、技术改造限额以上项目和其他需由国家审批的项目，其项目建设书市计委自受理之日起十五个工作日内组织初步审查，审查通过后七个工作日内上报国家计委或国家经贸委；可行性研究报告市计委自受理之日起二十个工作日内组织初步审查，审查通过后
七个工作日内报送国家计委或国家经贸委。
（二）初步设计的审批。总投资在三千万元以上的基本建设、技术改造和民用工程建设项目，市建委自受理之日起十二个工作日内审定办复；总投资在三千万元以下的项目，各部门、单位自受理之日起十个工作日内审定办复。
（三）外商投资企业项目的审批办复期限，按照一九九三年七月五日发布的市政府第1号令的有关规定执行。
（四）投资计划的下达。按规定负责管理投资计划的各级部门自受理之日起五个工作日内办复。
（五）中央各部门及外省市在津单位需办理投资计划登记手续的，有关部门自受理之日起三个工作日内办复。
第五条 超过上述规定时限未办复的，视为同意，建设单位有权进行下一步的工作。上述限期办复，包括批准或未批准。未批准再申报的，自受理之日起重新按规定时限办复。
第六条 各级投资管理部门，要切实转变职能、提高效率、搞好服务。对有关工作人员以权谋私，无正当理由拖期不办的，要追究责任；造成严重后果的，要予以严肃处理。
第七条 本规定由天津市计划委员会负责解释。
第八条 本规定自发布之日起施行。
1993年7月14日
