WTO Dispute Settlement Mechanism(2)/刘成伟(16)
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.
总共85页
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