WTO Dispute Settlement Mechanism(2)/刘成伟(13)
(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
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