WTO Dispute Settlement Mechanism(2)/刘成伟(17)
（iv）A Summary
As to the concept of nullification or impairment in violation cases, there is a presumption suggesting that a violation constitute a prima facie case of nullification or impairment pursuant to Art. 3.8 of the DSU. And a prima facie case is where, in the absence of effective refutation by the defending party, a panel is required, as a matter of law, to rule in favor of the complaining party presenting the prima facie case. However, the presumption has in practice operated as an irrefutable presumption.
Over the last decades of GATT/WTO dispute settlement practice, the violation of obligations has been presumed to cause impairment and no contracting party or WTO member has been allowed to rebut successively that presumption. It has become a truism of GATT/WTO jurisprudence that, lack of actual trade cannot be determinative for a finding that no violation of a provision occurred because it cannot be excluded that the absence of trade is the result of an illegal measure. Therefore, in the case of violation complaints, the concept of nullification or impairment has not had any practical impact over the last years because of the existence of such a “presumption”.
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