On Measure At Issue In WTO Dispute Settlement Procedure

Measure at issue, as a basic core concept of dispute settlement procedure, has experienced the development under untiring industry of all the contracting parties in the GATT era and the achievement gained in frustration of DSU review and reform and Doha round negotiation in the WTO era. It can be recognized from the history that the confirm of measure at issue reflects the consideration of members of due process principle, good faith principle and the principle of sovereignty. Due to the complexity that the measure at issue varies from case to case, WTO covered agreements have not given a definition to this concept which is otherwise developed in the practice of dispute settlement: In principle, any act or omission attributable to a WTO member can be a measure of that Member for purposes of dispute settlement proceedings. The development of practice also explained the distinction between measure at issue on one hand and terms of reference, claims and arguments on the other hand as well as clarified the meaning of attribution and act or omission. Since measure at issue can be any act or omission, there are various kinds of measures in practice of dispute settlement. Traditional ideas was mainly about the distinction between measure as such and measure as applied as well as the distinction between mandatory and discretionary measures. For the purpose of due process principle, measure at issue should be specially identified in the request of panel. Useful discussion have been made in practice about the standard of identification and the significance of identification of products and industries to the identification of measure. Measure at issue can be modified, withdrawn or expire during dispute settlement procedure. Panel and Appellate Body reports had discussed this alteration and its impact. From China's entry into the WTO till now, there is only one case in which China is complainant while China is faced with four accusations which is now before panel but not settled. Thus, given the complexity and importance of measure at issue, it is urgent for China to pay more attention to the study of measure at issue.