Attribution in the WTO: The Limits of "Sufficient Government Involvement”

This article reviews the issue of attribution in WTO law, covering both the general rules regarding measures taken by governments of WTO Members and the possible violations that may arise from the conduct of non-governmental entities. Although the WTO Agreements cover mainly governmental measures, a number of provisions establish obligations for Members to ensure that non-governmental entities adopt or refrain from adopting certain conduct. Other provisions are ambiguous and could be interpreted as requiring Members to prevent conduct of private or non-governmental entities causing nullification or impairment. However, indications given by Panels and the Appellate Body suggest that finding a violation of a WTO obligation on the basis of mere omission to regulate private conduct might be controversial. WTO adjudicators seek to find support for their findings of breach in “affirmative” governmental conduct – i.e., in measures consisting of actions rather than mere omissions.