WTO Dispute Settlement Mechanism(5)/刘成伟(12)
“Although the Panel states that it is merely applying a ‘well-established GATT principle’, the Panel's reasoning does not accurately reflect GATT/WTO practice. In developing its interpretative principle, the Panel merges, and thereby confuses, two different concepts from previous GATT practice. One is the concept of protecting the expectations of contracting parties as to the competitive relationship between their products and the products of other contracting parties. This is a concept that was developed in the context of violation complaints involving Articles III and XI, brought under Article XXIII:1(a), of the GATT 1947. The other is the concept of the protection of the reasonable expectations of contracting parties relating to market access concessions. This is a concept that was developed in the context of non-violation complaints brought under Article XXIII:1(b) of the GATT.
In the context of violation complaints made under Article XXIII:1(a), it is true that panels examining claims under Articles III and XI of the GATT have frequently stated that the purpose of these articles is to protect the expectations of Members concerning the competitive relationship between imported and domestic products, as opposed to expectations concerning trade volumes. However, this statement is often made after a panel has found a violation of, for example, Article III or Article XI that establishes a prima facie case of nullification or impairment. At that point in its reasoning, the panel is examining whether the defending party has been able to rebut the charge of nullification or impairment. It is in this context that panels have referred to the expectations of Members concerning the conditions of competition.
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