WTO Dispute Settlement Mechanism(2)/刘成伟(14)
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
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