chapter ⅱ
causes of action before the dsb:
art. xxiii of the gatt 1994
outline
section one right to pursue a proceeding under the wto
i the concept of nullification or impairment
ii the standing issue before the dsb
iii lack of possible compensation
iv summary and conclusions
section two causes of action before the dsb in general
i the presumption in violation complaints
（i）introduction
（ii）practice under the gatt jurisprudence
（iii）rulings under the wto jurisprudence
（iv）a summary
ii an overview of non-violation complaints
（i）related texts
（ii）relationship between arts. xxiii:1(a) and xxiii:1(b)
（iii）underlying purpose of art. xxiii:1(b)
（iv）non-violation claims in the context of principles of customary international law
（v）appropriate attitudes as to non-violation remedy
iii presupposed situation complaints
section three establishment of non-violation complaints
i introduction
ii application of a measure: scope of measures covered by art. xxiii:1(b)
（i）measures short of legally binding obligations
（ii）measures falling under other provisions of the gatt 1994
（iii）measures concerning the protection of human health
（iv）measures continuingly applied
iii existence of a benefit: protection of legitimate expectations
（i）protection of legitimate expectations（ple）
（ii）non-foreseeability of measures at issue
（iii）benefits in the negotiations
（iv）benefits under successive rounds
iv nullification or impairment of benefit: causality
v summary and conclusions
section one
right to pursue a proceeding under the wto
i the concept of nullification or impairment
nullification or impairment is a most important concept developed in previous gatt dispute settlement system. it is incorporated into the gatt 1994 by the so-called incorporation clause (paragraph 1 of the gatt 1994) and goes on to operate as an important feature of the dsu under the wto. dispute settlement mechanism under the wto continues to revolve around the concept of nullification or impairment. art. 3.1 of the dsu requires members to “affirm their adherence to the principles for the management of disputes heretofore applied under articles xxii and xxiii of gatt 1947”.
according to art. xxiii:1 of the gatt, a member may have recourse to dispute settlement under the wto when it considers that:
“... any benefit accruing to it directly or indirectly under this agreement is being nullified or impaired or that the attainment of any objective of the agreement is being impeded as the result of
（a）the failure of another contracting party [member of the wto] to carry out its obligations under this agreement, or
（b）the application by another contracting party [member of the wto] of any measure, whether or not it conflicts with the provisions of this agreement, or
（c）the existence of any other situation.”
as it implies, unlike
that in many other dispute settlement procedures generally designed to resolve differences on the interpretation or application of the provisions under most international treaties, international responsibility in wto law is not assessed only in terms of compliance with the specific provisions of the relevant agreements. rather, it is the idea of nullification or impairment that determines whether rights to complain arise under the covered agreement.
art. xxiii:1 suggests that legal considerations need not be the sole focus of a complaint under the dsu, and that the dsu procedures can be invoked for the settlement of any trade dispute arising from any governmental measure, whether legal or illegal, and that arising from any situation, whether attributable to a government or not. a member demonstrating that a measure or any other situation nullified or impaired their benefits accruing to the covered agreements is given redress even if there was no failure to carry out the obligations. what’s more, a benefit doesn’t need to accrue directly to the party; an indirect benefit is protected as well. it seems that the aim of art. xxiii:1 is to ensure that the negotiated balance of concessions is maintained even in situations that cannot be foreseen and that can consequently not be defined.
in practice, it is demonstrated that panels and the appellate body have broadly defined nullification or impairment of a benefit. the equation of “nullification or impairment” with “upsetting the competitive relationship” established between members has been consistently used. however, as a result of the divergence between the text of the provisions and the practice under it, the actual scope and function of the concept of nullification or impairment is often misunderstood. it is helpful for the clarification of this concept to go further into the standing issue before the dsb.
ii the standing issue before the dsb
the term “standing” has not been explicitly embodied in the text of the dsu or in any other covered agreements. it is used here for the purpose of examining whether a party must demonstrate the existence of some interest concerned, as usually required in domestic judicial process, in launching a complaint before the dsb.
in ec-bananas (ds27) 1, the appellate body does not accept that the need for a “legal interest” is implied in the dsu or in any other provision of the wto agreement when the ec queries the right of us to bring claims under the gatt 1994. during the appellate review, the appellate body agree with the panel that, “neither art. 3.3 nor 3.7 of the dsu nor any other provision of the dsu contains any explicit requirement that a member must have a ‘legal interest’ as a prerequisite for requesting a panel”. as found by the appellate body, it is true that under art. 4.11 of the dsu, a member wishing to join in multiple consultations must have “a substantial trade interest”, and that under art. 10.2 of the dsu, a third party must ha
ve “a substantial interest” in the matter before a panel. but neither of these provisions in the dsu, nor anything else in the wto agreement, provides a basis for asserting that parties to the dispute have to meet any similar standard.
the participants in this appeal also refer to certain judgments of the international court of justice and the permanent court of international justice relating to whether there is a requirement, in international law, of a legal interest to bring a case. the appellate body can not read any of these judgments as establishing a general rule that in all international litigation a complaining party must have a “legal interest” in order to bring a case. nor do they think that these judgments deny the need to consider the question of standing under the dispute settlement provisions of any multilateral treaty, by referring to the terms of that treaty. this leads the appellate body to examine art. xxiii of the gatt 1994, which is the dispute settlement provision for disputes brought pursuant to gatt 1994.
after referring to the chapeau of art. xxiii:1, the appellate body notes that of special importance for determining the issue of standing, are the words “[i]f any member should consider ...”. they think that this provision in art. xxiii is consistent with art. 3.7 of the dsu, which states that “[b]efore bringing a case, a member shall exercise its judgment as to whether action under these procedures would be fruitful”. accordingly, the appellate body finds that “a member has broad discretion in deciding whether to bring a case against another member under the dsu. the language of article xxiii:1 of the gatt 1994 and of article 3.7 of the dsu suggest, furthermore, that a member is expected to be largely self-regulating in deciding whether any such action would be ‘fruitful’”.
while in korea-dairy products (ds98), regarding korea's reference to the lack of economic interest of the ec, the panel finds that under the dsu there is no requirement that parties must have an economic interest. recalling some concerned findings in ec-bananas, the panel rules that they can’t read in the dsu any requirement for an “economic interest”. 2
iii lack of possible compensation
as noted above, there is no requirement under the wto for a “legal interest” or an “economic interest” for members to invoke the dsu procedures for the settlement of any trade dispute. however, is the right to pursue a proceeding denied by the lack of any possible compensation?
in ec-bananas (ds27)，ec resorts to arbitration under art. 22.6 of the dsu. and the arbitrators note that, inter alia, ec contends that especially with respect to trade in goods the nullification or impairment suffered by the united states is negligible or nil since there is no actual trade and little prospect for potential trade in bananas between the united states and the ec. in this respect, the arbitrators recall the ec's argument in the original dispute that even if a
member not suffering nullification or impairment of wto benefits in respect of bananas were allowed to raise a claim under the gatt, that member would not have had an effective remedy under art. 22 of the dsu. the arbitrators also note the complainants' argument in the original dispute that art. 3.8 of the dsu presupposes a finding of infringement prior to a consideration of the nullification or impairment issue, suggesting that even if no compensation were due, an infringement finding could be made.
the arbitrators agree the complainants’ argument, and rule that, art. xxiii:1 of the gatt 1994 and art. 3.3 of the dsu do not establish a procedural requirement. as found by the arbitrators, these provisions concern the initiation of a wto dispute settlement proceeding where a member considers benefits directly or indirectly accruing to it were nullified or impaired. such an initial decision on whether or not to raise a complaint is necessarily the result of a subjective and strategic consideration from the individual perspective of a member. however, a decision on whether the assertion of nullification or impairment by an individual member will be warranted and justified in light of wto law is a different decision, taken by a panel or the appellate body from the objective benchmark of the agreements covered by the wto. furthermore, the arbitrators rule that the review of the level of nullification or impairment by arbitrators from the objective benchmark foreseen by art. 22 of the dsu is a separate process, independent from the finding of infringements of wto rules by a panel or the appellate body. 3
iv summary and conclusions
according to art. xxiii:1 of the gatt 1994, if a wto member means to get redress by invoking the dsu procedures for the settlement of any trade dispute arising from any governmental measure or any situation, it must demonstrate that such measures or situations resulted in a nullification or impairment of any benefits accruing to it directly or indirectly under the covered agreements. as noted above, the concept of nullification or impairment is viewed as a change upsetting the competitive relationship between members. and it is demonstrated by the wto practice that the need for a “legal interest” or an “economic interest” cannot be implied in the dsu or in any other provisions of the wto agreement. a member's potential interests in trade in goods or services and its interest in a determination of rights and obligations under the wto agreements are each sufficient to establish a right to pursue a wto dispute settlement proceeding.
in fact, a crucial point is the balance of economic relations based on particular negotiated results in terms of rights and obligations rather than the actual trade flows. over the last decades of gatt/wto dispute settlement practice, it has become a truism of gatt/wto jurisprudence that, lack of actual trade cannot be determinative for a finding that no violation of a provision occu
rred because it cannot be excluded that the absence of trade is the result of an illegal measure. in this respect, as next section will show, related closely to the standing issue, a presumption has been explicitly provided for in the art. 3.8 of the dsu, pursuant to which nullification or impairment is presumed once a violation is established.
in short, a member has broad discretion in deciding whether to bring a case against another member under the dsu, and is expected to be largely self-regulating in deciding whether any such action would be fruitful. however, a member's right to pursue a proceeding does not automatically imply that it is entitled to obtain any remedies available under the wto.
【note】:
1. see, in detail, wt/ds27/ab/r/132-135.
2. see, in detail, wt/ds98/r/7.13-7.14.
3. see, in detail, wt/ds27/arb/6.9.
section two
causes of action before the dsb in general
indeed, the concept of nullification or impairment under art. xxiii:1 provides three causes of action before the dsb. art. xxiii:1(a) involves so-called violation complaints arising from an alleged failure by a member to carry out its obligations. in contrast, art. xxiii:1(b) involves non-violation complaints, which do not require an allegation of a violation of an obligation. and art. xxiii:1(c) covers what are commonly called situation complaints. however, there is no adequately specific test for any kind of the three causes of action in the dsu. cases under the gatt/wto imply that there are various applicable terms or essentials for the establishment of various complaints. and in this section generally, we will take an overview on the three causes of action.
i the presumption in violation complaints
（i）introduction
during decades of experience, art. xxiii:1(a) has formed the basis of almost all disputes under the gatt 1947 and the wto agreement. dispute settlement under the gatt/wto has always been dominated by violation complaints.
the concept of so-called violation complaints, developing from the provision of xxiii:1(a), refers to those complaints brought before the dsb by a wto member when it thinks that any benefit accruing to it directly or indirectly under the covered agreement is being nullified or impaired as a result of the failure of another member of the wto to carry out its obligations under that agreement. in 1960, the contracting parties decided that a gatt-inconsistent measure was presumed to cause nullification or impairment and that it was up to the party complained against to demonstrate that this was not the case.1 this principle was assimilated in the dispute settlement procedures adopted at the end of the tokyo round, and is now reflected in art. 3.8 of the dsu, which reads:
“in cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairme
nt. this means that there is normally a presumption that a breach of the rules has an adverse impact on other members parties to that covered agreement, and in such cases, it shall be up to the member against whom the complaint has been brought to rebut the charge.”
from the provision above, we note that in violation complaints, there is an essential concept, i.e. a “presumption” which means that, the violation of obligations constitutes a prima facie case of nullification or impairment. art. 3.8 of the dsu suggests that once an infringement or violation of the obligations assumed under a covered agreement has been demonstrated, a presumption that the violation causes nullification or impairment is established. at the same time, this provision seems to suggest that the presumption of nullification or impairment is rebuttable. however, it is not the case and as to be shown below, there has been no case of a successful rebuttal of the presumption in the history of the gatt/wto.
(ii) practice under the gatt jurisprudence
in an action concerning import quotas on leather, japan argued that since the quotas were not fully utilized, they did not restrain trade, and consequently had not caused a nullification or impairment of benefits. that panel rejected the argument on the grounds that: “the existence of quantitative restrictions should be presumed to cause nullification or impairment not only because of any effect it had on the volume of trade but also for other reasons, e.g., it would lead to increased transaction costs and would create uncertainties which could affect investment plans.”2 this ruling at least indicates that a demonstration that no adverse trade impact has as yet occurred is insufficient to rebut the presumption.
and in 1987, a panel on the us-superfund summarized the legal situation regarding the presumption of nullification or impairment as follows: “the panel examined how the contrating parties have reacted in previous cases to claims that a measure inconsistent with the general agreement had no adverse impact and therefore did not nullify or impair benefits accruing under the general agreement to the contracting party that had brought the complaint. the panel noted that such claims had been made in a number of cases but that there was no case in the history of the gatt in which a contracting party had successfully rebutted the presumption […]. the panel concluded […] that, while the contracting parties had not explicitly decided whether the presumption that illegal measures cause nullification or impairment could be rebutted, the presumption had in practice operated as an irrefutable presumption.”3
as noted above, panels under the gatt cast doubt on the idea that the presumption of nullification or impairment might be rebuttable on the ground that the failure to observe the obligation had no impact on trade flows. because once the benefits accruing under the basic gatt provisions governing import controls have
been defined in terms of conditions of competition rather than trade flows, the idea that a measure might be inconsistent with a provision of the gatt prescribing certain conditions of competition but nevertheless not impair benefits accruing under it for lack of any trade effects is no longer tenable.
(iii) rulings under the wto jurisprudence
in practice, various panels or the standing appellate body in most cases make a presumption of nullification or impairment under the wto directly from the establishment of a violation. for example, in ec-computer equipment (ds62/ds67/ds68), the panel rules in its report that, “[i]n view of our finding that the tariff treatment of lan equipment by customs authorities in the european communities violated article ii:1 of gatt 1994, we find that it is not necessary to examine this additional claim with respect to lan equipment, except to note that the infringement of gatt rules is considered prima facie to constitute a case of nullification or impairment under article 3.8 of the dsu”.4
and in us-1916 act (ds136), the panel rules as: “we have found that the 1916 act as such violates article vi:1 and vi:2 of the gatt 1994, as well as articles 1, 4 and 5.5 of the anti-dumping agreement. we also concluded that, by not ensuring the conformity of the 1916 act with its obligations as provided under the above-mentioned provisions, the united states violates article xvi:4 of the agreement establishing the wto. since article 3.8 of the dsu provides that ‘[i]n cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment’ and as the united states has adduced no evidence to the contrary, we conclude that the 1916 act nullifies or impairs benefits accruing to the european communities under the wto agreement”.5
nevertheless, some panels and the appellate body have also systematically rejected as insufficient the demonstration of an absence of trade impact in some cases. for example, in ec- bananas (ds27) 6, ec attempts to rebut the presumption of nullification or impairment with respect to the panel's findings of violations of the gatt 1994 on the basis that us have never exported a single banana to the european community, and therefore, could not possibly have suffered any trade damage.
the appellate body notes firstly that two points had been made that the panel may well had in mind in reaching its conclusions on nullification or impairment. one is that the united states is a producer of bananas and that a potential export interest by the united states couldn’t be excluded; the other is that the internal market of the united states for bananas could be affected by the ec bananas regime and by its effects on world supplies and world prices of bananas. the appellate body decides that these are matters relevant to the question of the standing of the united states under the gatt 1994. they are
equally relevant to the question whether the european communities has rebutted the presumption of nullification or impairment.
to go on with their analysis, the appellate body refer to the panel report on us-superfund, to which the panel in present case referred. in that case, the panel examined whether measures with “only an insignificant effect on the volume of exports do nullify or impair benefits under article iii:2”, and concluded (and in so doing, confirmed the views of previous panels) that: “article iii:2, first sentence, cannot be interpreted to protect expectations on export volumes; it protects expectations on the competitive relationship between imported and domestic products. a change in the competitive relationship contrary to that provision must consequently be regarded ipso facto as a nullification or impairment of benefits accruing under the general agreement. a demonstration that a measure inconsistent with article iii:2, first sentence, has no or insignificant effects would therefore in the view of the panel not be a sufficient demonstration that the benefits accruing under that provision had not been nullified or impaired even if such a rebuttal were in principle permitted”. the appellate body finds that the reasoning in us-superfund applies equally in present case. for these reasons, the appellate body concludes that they find no legal basis on which to reverse the conclusions of the panel.
（iv）a summary
as to the concept of nullification or impairment in violation cases, there is a presumption suggesting that a violation constitute a prima facie case of nullification or impairment pursuant to art. 3.8 of the dsu. and a prima facie case is where, in the absence of effective refutation by the defending party, a panel is required, as a matter of law, to rule in favor of the complaining party presenting the prima facie case. however, the presumption has in practice operated as an irrefutable presumption.
over the last decades of gatt/wto dispute settlement practice, the violation of obligations has been presumed to cause impairment and no contracting party or wto member has been allowed to rebut successively that presumption. it has become a truism of gatt/wto jurisprudence that, lack of actual trade cannot be determinative for a finding that no violation of a provision occurred because it cannot be excluded that the absence of trade is the result of an illegal measure. therefore, in the case of violation complaints, the concept of nullification or impairment has not had any practical impact over the last years because of the existence of such a “presumption”.
indeed, in a multilateral trade order that prescribes conditions of competition and therefore doesn’t guarantee trade results but trade opportunities or competitive relations between members, a change in the competitive relationship contrary to that provision must consequently be regarded ipso facto as a nullification or impairment of benefits accruing to m
embers.
ii an overview of non-violation complaints
（i）related texts
the use of different forms of complaints in art. xxiii:1 suggests that the prohibition to nullify or impair benefits, i.e. favorable conditions of competition as to market access and on the market, cannot be fully secured by compliance with specific treaty obligations. and it is necessary to establish equitable remedies such as non-violation or situation remedies outside of the proper province of legal obligations.
unique from generally offering the opportunity for parties to a treaty to request consultation and relief from measures undertaken by other parties, such relief in the wto legal system distinguishes violation and non-violation claims, or legal and non-legal causes of action. under art. xxiii:1(b), a member can bring a non-violation complaint when the negotiated balance of concessions between members is upset by the application of a measure, whether or not this measure is inconsistent with the provisions of the covered agreement. the existence of a non-violation remedy under art.xxiii:1(b) of the gatt 1994 requires members of the wto to adhere to the principles of the covered agreements, even if there are no rules forbidding the particular action taken. and the non-violation remedy is handled specifically in art. 26.1 of the dsu which reads:
“1. non-violation complaints of the type described in paragraph 1（b）of article xxiii of gatt 1994
where the provisions of paragraph 1(b) of article xxiii of gatt 1994 are applicable to a covered agreement, a panel or the appellate body may only make rulings and recommendations where a party to the dispute considers that any benefit accruing to it directly or indirectly under the relevant covered agreement is being nullified or impaired or the attainment of any objective of that agreement is being impeded as a result of the application by a member of any measure, whether or not it conflicts with the provisions of that agreement. where and to the extent that such party considers and a panel or the appellate body determines that a case concerns a measure that does not conflict with the provisions of a covered agreement to which the provisions of paragraph 1(b) of article xxiii of gatt 1994 are applicable, the procedures in this understanding shall apply, subject to the following:
(a) the complaining party shall present a detailed justification in support of any complaint relating to a measure which does not conflict with the relevant covered agreement;
(b) where a measure has been found to nullify or impair benefits under, or impede the attainment of objectives, of the relevant covered agreement without violation thereof, there is no obligation to withdraw the measure. however, in such cases, the panel or the appellate body shall recommend that the member concerned make a mutually satisfactory adjustment;
(c) notwithstanding the provisions of article 21, the arbitration provided for in paragraph 3 o
f article 21, upon request of either party, may include a determination of the level of benefits which have been nullified or impaired, and may also suggest ways and means of reaching a mutually satisfactory adjustment; such suggestions shall not be binding upon the parties to the dispute;
(d) notwithstanding the provisions of paragraph 1 of article 22, compensation may be part of a mutually satisfactory adjustment as final settlement of the dispute.”
although art. xxiii:1(b) of the gatt 1994 remains as it was, art. 26.1 of the dsu codifies several aspects of the case law developed under the gatt jurisprudence. for instance, art. 26.1(a) clarifies the principle set out in case law, of the need to accompany a non-violation complaint with specific evidence of harm. also, the article concretizes the technically non-violation nature of the case. art. 26.1(b) sets forth special rules both pertaining to the reversal of burden of proof and justification, and to remedies. these deviate from the addressing of these issues in violation complaints in arts. 3.8 and 22 of the dsu. foremost of those deviations is that non-violation findings do not oblige the member concerned to withdraw a measure not inconsistent with the agreements, instead the obligation is limited to provide mutually satisfactory adjustments, usually by means of compensation. furthermore, arts. 26.1(c) and 26.1(d) set forth special rules pertaining to the arbitration and compensation in non-violation complaints.
（ii）relationship between arts. xxiii:1(a) and xxiii:1(b)
in ec –asbestos (ds135), it is the first occasion for the appellate body to examine art. xxiii:1(b) of the gatt 1994. for this reason, the appellate body think there it necessary for them to make certain preliminary observations about the relationship between arts. xxiii:1(a) and xxiii:1(b) of the gatt 1994.
in this respect, the appellate body rules that, “article xxiii:1(a) sets forth a cause of action for a claim that a member has failed to carry out one or more of its obligations under the gatt 1994. a claim under article xxiii:1(a), therefore, lies when a member is alleged to have acted inconsistently with a provision of the gatt 1994. article xxiii:1(b) sets forth a separate cause of action for a claim that, through the application of a measure, a member has ‘nullified or impaired’ ‘benefits’ accruing to another member, ‘whether or not that measure conflicts with the provisions’ of the gatt 1994. thus, it is not necessary, under article xxiii:1(b), to establish that the measure involved is inconsistent with, or violates, a provision of the gatt 1994. cases under article xxiii:1(b) are, for this reason, sometimes described as ‘non-violation’ cases, though, the word ‘non-violation’ does not appear in this provision.”7
（iii）underlying purpose of art. xxiii:1(b)
non-violation complaints are rooted in the gatt's origins as an agreement intended to protect the reciprocal tariff concessions negotiated among
the contracting parties under art. ii of the gatt 1947. in the absence of substantive legal rules in many areas relating to international trade, the non-violation provision of art. xxiii:1(b) was aimed at preventing contracting parties from using non-tariff barriers or other policy measures to negate the benefits of negotiated tariff concessions.
the panel in japan-film (ds44) 8 observes that the underlying purpose of art. xxiii:1(b) was cogently explained by the panel on eec-oilseeds, which stated: “the idea underlying [the provisions of article xxiii:1(b)] is that the improved competitive opportunities that can legitimately be expected from a tariff concession can be frustrated not only by measures proscribed by the general agreement but also by measures consistent with that agreement. in order to encourage contracting parties to make tariff concessions they must therefore be given a right of redress when a reciprocal concession is impaired by another contracting party as a result of the application of any measure, whether or not it conflicts with the general agreement. [. . .] the panel [on eec - oilseeds] considered that the main value of a tariff concession is that it provides an assurance of better market access through improved price competition. contracting parties negotiate tariff concessions primarily to obtain that advantage. they must therefore be assumed to base their tariff negotiations on the expectation that the price effect of the tariff concessions will not be systematically offset. if no right of redress were given to them in such a case they would be reluctant to make tariff concessions and the general agreement would no longer be useful as a legal framework for incorporating the results of trade negotiations.”
clearly, the safeguarding of the process and the results of negotiating reciprocal tariff concessions under article ii of the gatt is fundamental to the balance of rights and obligations to which all wto members subscribed. the availability of calling for a dispute settlement procedure for non-violations is a device meant to ensure the integrity of the gatt/wto system in the face of ever more complex methods of circumventing explicit tariff bindings and the prohibitions on non-tariff trade restraint instruments. a peaceful society, domestic or international, relies on cooperation, fairness and mutual trust. thus, such reliance must not be jeopardized by an isolated application of strict law. as is confirmed by a review below on the context of non-violation remedy.
（iv）non-violation claims in the context of principles of customary international law
with regard to this issue, the panel in korea-government procurement (ds163) rules as follows:9
“in our view, the non-violation remedy as it has developed in gatt/wto jurisprudence should not be viewed in isolation from general principles of customary international law. as noted above, the basic premise is that members should not take actions, even those consi
stent with the letter of the treaty, which might serve to undermine the reasonable expectations of negotiating partners. this has traditionally arisen in the context of actions which might undermine the value of negotiated tariff concessions. in our view, this is a further development of the principle of pacta sunt servanda in the context of article xxiii:1(b) of the gatt 1947 and disputes that arose thereunder, and subsequently in the wto agreements, particularly in article 26 of the dsu. the principle of pacta sunt servanda is expressed in article 26 of the vienna convention in the following manner: ‘every treaty in force is binding upon the parties to it and must be performed by them in good faith.’
it seems clear that good faith performance has been agreed by the wto members to include subsequent actions which might nullify or impair the benefits reasonably expected to accrue to other parties to the negotiations in question. the consistency of such an interpretation with the general principles of customary international law is confirmed by reference to the negotiating history of the vienna convention. according to the report of the international law commission to the general assembly, this issue was considered by the members negotiating the convention in the following manner: ‘some members felt that there would be advantage in also stating that a party must abstain from acts calculated to frustrate the object and purpose of the treaty. the commission, however, considered that this was clearly implicit in the obligation to perform the treaty in good faith and preferred to state the pacta sunt servanda rule in as simple a form as possible.’
the non-violation doctrine goes further than just respect for the object and purpose of the treaty as expressed in its terminology. one must respect actual provisions (i.e., concessions) as far as their material effect on competitive opportunities is concerned. it is an extension of the good faith requirement in this sense.
we take note that article 3.2 of the dsu requires that we seek within the context of a particular dispute to clarify the existing provisions of the wto agreements in accordance with customary rules of interpretation of public international law. however, the relationship of the wto agreements to customary international law is broader than this. customary international law applies generally to the economic relations between the wto members. such international law applies to the extent that the wto treaty agreements do not ‘contract out’ from it. to put it another way, to the extent there is no conflict or inconsistency, or an expression in a covered wto agreement that implies differently, we are of the view that the customary rules of international law apply to the wto treaties and to the process of treaty formation under the wto.
as korea has argued, non-violation is an exceptional concept within the wto dispute settlement system. […] [as stated by the panel in japan – film, th
e non-violation nullification or impairment remedy should be approached with caution and treated as an exceptional concept.] despite this caution, however, the panel in japan - film was of the view that the non-violation remedy had an important role - that of protecting the reasonable expectations of competitive opportunities through negotiated concessions.
in our view, these observations by previous panels are entirely in line with the concept of pacta sunt servanda. the vast majority of actions taken by members which are consistent with the letter of their treaty obligations will also be consistent with the spirit. however, upon occasion, it may be the case that some actions, while permissible under one set of rules (e.g., the agreement on subsidies and countervailing measures is a commonly referenced example of rules in this regard), are not consistent with the spirit of other commitments such as those in negotiated schedules. that is, such actions deny the competitive opportunities which are the reasonably expected effect of such commitments. […]”
（v）appropriate attitudes as to non-violation remedy
on the one hand, although the non-violation remedy is an important and accepted tool of gatt/wto dispute settlement and has been “on the books” for more than 50 years, there have only been eleven cases, among which there is only one case is reviewed by the appellate body, in which panels or working parties have substantively considered article xxiii:1(b) claims by the end of 2002. this suggests that both the gatt and the wto have approached this remedy with caution and, indeed, have treated it as an exceptional instrument of dispute settlement. in fact, in this regard the two parties in many such cases have also confirmed that the non-violation nullification or impairment remedy should be approached with caution and be treated as an exceptional concept. one panel explained that, “[t]he reason for this caution is straightforward. members negotiate the rules that they agree to follow and only exceptionally would expect to be challenged for actions not in contravention of those rules”.10
however, the panel in japan-film (ds44) observes that, “[w]hile we consider that the non-violation remedy should be approached with caution and should remain an exceptional remedy, each case should be examined on its own merits, bearing in mind the above-mentioned need to safeguard the process of negotiating reciprocal tariff concessions. our role as a panel charged with examining claims under article xxiii:1(b) is, therefore, to make an objective assessment of whether, in light of all the relevant facts and circumstances in the matter before us, particular measures taken by japan have nullified or impaired benefits accruing to the united states within the meaning of article xxiii:1(b)”.11 and in next section an insight is taken into those common elements that have been reviewed by the panels or the appellate body charged with examining claims under art.
xxiii:1(b).
on the other hand, the non-violation remedy prescribed in art. xxiii:1(b) has given rise to controversy. while numerous commentators, together with various panels or the appellate body, have referred to the non-violation language of art. xxiii:1(b) as a clause to maintain the balance of interests among members; others characterize the idea of allowing for non-violation complaints as superfluous at best, condemning it as a “useless and dangerous construction”, and many lawyers are reluctant to accept the concept of non-violation as legitimate.
indeed, one could consider non-violation complaints a necessary ingredient of a system that primarily serves as a forum for negotiations but fear that liberal usage of the provision will result in harassment complaints based more on domestic political concerns than on any true wrong-doing by the respondent member. in fact, past practices of the gatt/wto develop an equitable branch of good faith doctrine, known as the protection of legitimate expectations（to be scrutinized in next section）, to avoid the abuse of non-violation remedy.
to sum up, “the availability of article xxiii:1(b) complaints can operate as a moral hazard in the dispute settlement procedures. panels that are faced with a politically difficult interpretative issue or are internally divided can be tempted to refer the complaining wto member to its procedural rights under article xxiii:1(b) rather than confirming its substantive rights. by adopting that approach they spare the party complained against of the opprobrium of illegality, open the door to a negotiated settlement between the parties to the dispute, and accord the complaining party the right to retaliate should no settlement be reached--a solution that can be attractive to a pragmatically minded member of a panel or the appellate body seeking to avoid a difficult legal issue”.12
iii presupposed situation complaints
the gatt/wto have never ruled that the existence of a situation as prescribed in art. xxiii:1(c) give rise to a nullification or impairment. however, under the procedure set out in the dsu, the existence of such a situation-related dispute between wto members is presupposed. as is stipulated in article 26.2 of the dsu as:
“2. complaints of the type described in paragraph 1(c) of article xxiii of gatt 1994
where the provisions of paragraph 1(c) of article xxiii of gatt 1994 are applicable to a covered agreement, a panel may only make rulings and recommendations where a party considers that any benefit accruing to it directly or indirectly under the relevant covered agreement is being nullified or impaired or the attainment of any objective of that agreement is being impeded as a result of the existence of any situation other than those to which the provisions of paragraphs 1(a) and 1(b) of article xxiii of gatt 1994 are applicable. where and to the extent that such party considers and a panel determines that the matter is covered by thi
s paragraph, the procedures of this understanding shall apply only up to and including the point in the proceedings where the panel report has been circulated to the members. the dispute settlement rules and procedures contained in the decision of 12 april 1989 (bisd 36s/61-67) shall apply to consideration for adoption, and surveillance and implementation of recommendations and rulings. the following shall also apply:
(a) the complaining party shall present a detailed justification in support of any argument made with respect to issues covered under this paragraph;
(b) in cases involving matters covered by this paragraph, if a panel finds that cases also involve dispute settlement matters other than those covered by this paragraph, the panel shall circulate a report to the dsb addressing any such matters and a separate report on matters falling under this paragraph.”
there is no jurisprudence that illuminates the scope of art. xxiii:1(c). however, two types of situations that could possibly fall under this provision can usefully be distinguished. first, situations of the kind that the drafters had in mind, namely a general depression, high unemployment, collapse of the price of a commodity and other emergencies in international economic relations that cannot be corrected by the action of a particular government; and, second, situations that are within the control of a particular government and therefore capable of being modified by that government. 13
in the first type of situation, art. xxiii:1(c) has never been used for the purpose its drafters had in mind, namely to permit the parties or members to suspend the application of obligations under the gatt/wto in response to an international economic emergency. in the case of an invocation of art. xxiii:1(c) for this purpose, there is no complainant or respondent; there is merely a proposal to adjust obligations to respond to a situation that members are unable to prevent. for this reason, matters related to a situation might, according to art. xxiii:2, be referred to the dsb without prior consultations with another member. the relevant passage states in art. xxiii:2 that, “[i]f no satisfactory adjustment is effected between the contracting parties concerned within a reasonable time, or if the difficulty is of the type described in paragraph 1(c) of this article, the matter may be referred to the contracting parties”.
however, under the procedures evolved under art. 26.2 of the dsu, the existence of a respondent and prior consultations with that respondent seem to be presupposed. for the three causes of action before the dsb seem to be handled through investigations by members acting jointly. it therefore makes sense to combine the procedures for invocations of all three subparagraphs of art. xxiii:1. thus the procedures of the dsu don’t seem to effectively apply to art. xxiii:1(c) invocations involving emergencies. international economic emergencies of the type the drafters had
in mind can therefore not be meaningfully handled through the dsu procedures. the only procedure at members’ disposal would therefore now be the waiver procedure of article ⅸ:3 of the wto agreement.
as to the second type of situation, the only situations effectively covered by the dsu are those that an identifiable wto member is capable of correcting. because article 26.2 of the dsu stipulates in relevant as: “as a result of the existence of any situation other than those to which the provisions of paragraphs 1(a) and 1(b) of article xxiii of gatt 1994 are applicable”, if the situation is brought about by the application of a measure by a wto member, article xxiii:1(a) or (b) would apply. the recourse to article xxiii:1(c) is therefore only necessary if the situation is the result of a failure of a wto member to apply a measure. when examining situation complaints, the panels would therefore have to determine not only whether there was a reasonable expectation that the situation would not occur but also whether there was a reasonable expectation that the government would intervene to correct this situation.
however, there is little common understanding among wto members as to the circumstances calling for government intervention in the economy and therefore a finding that a reasonable expectation that the respondent would have intervened to prevent such circumstances would be very difficult to make. nevertheless, the drafters of the wto agreement did not abandon the concept of nullification or impairment under such situations other than those to which the provisions of paragraphs 1(a) and 1(b) of article xxiii of gatt 1994 are applicable.
【note】:
1. see, in detail, basic instruments and selected documents (“bisd”), 11s/99-100.
2. see, in detail, bisd 31s/113.
3. see, in detail, bisd 34s/156-158.
4. see, wt/ds62/r; wt/ds67/r; wt/ds68/r/8.70.
5. see, wt/ds136/r/6.227.
6. see, in detail, wt/ds27/ab/r/249-254.
7. see, in detail, wt/ds135/ab/r/185.
8. see, in detail, wt/ds44/r/10.35.
9. see, wt/ds163/r/7.93-7.99.
10. see, in detail, wt/ds44/r/10.36.
11. see, wt/ds44/r/10.37.
12. see, frieder roessler, ‘the concept of nullification and impairment in the legal system of the world trade organization’, international trade law and the gatt/wto dispute settlement system (petersmann ed.), kluwer law international, london, 1997, p. 133.
13. supra. note 12, pp. 139-140.
section three
establishment of non-violation complaints
i introduction
as it suggests of the corresponding provisions, the most significant difference between violation complaints and non-violation ones is, while the infringement of an obligation under the covered agreements is considered prima facie to constitute a case of nullification or impairment by establishing a formal presumption, such a presumption
does not exist in non-violation cases. with the lack of such a presumption, the establishment of a non-violation complaint puts much more burden of proof on the side of the complainant.
in this regard, the panel in japan – film (ds44) summarizes the common test for non-violation cases in the following manner: “the text of article xxiii:1(b) establishes three elements that a complaining party must demonstrate in order to make out a cognizable claim under article xxiii:1(b): (1) application of a measure by a wto member; (2) a benefit accruing under the relevant agreement; and (3) nullification or impairment of the benefit as the result of the application of the measure.”1
while in korea-government procurement (ds163) the panel adds a notion developed in all these non-violation cases that, the nullification or impairment of the benefit as a result of the measure must be contrary to the reasonable expectations of the complaining party at the time of the agreement. therefore, the panel there finds that normal non-violation cases involve an examination as to whether there are: (1) an application of a measure by a wto member; (2) a benefit accruing under the relevant agreement; and (3) nullification or impairment of the benefit due to the application of the measure that could not have been reasonably expected by the exporting member.2 in the following paragraphs we will touch respectively on these elements.
ii application of a measure: scope of measures covered by art. xxiii:1(b)
in analyzing the elements of a non-violation claim, a logical starting point is the requirement that there be an application of a measure by a wto member. in this regard, in most cases, the issue is not whether or not a measure in fact exists, but rather whether such measures have contributed in a way to the nullification or impairment of benefits accruing to the applicant within the terms of art. xxiii:1(b).
（i）measures short of legally binding obli
