WTO Dispute Settlement Mechanism(2)/刘成伟(12)
“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 impairment. 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.
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