WTO Dispute Settlement Mechanism(2)/刘成伟(18)
Indeed, in a multilateral trade order that prescribes conditions of competition and therefore doesn’t guarantee trade results but trade opportunities or competitive relations between members, a change in the competitive relationship contrary to that provision must consequently be regarded ipso facto as a nullification or impairment of benefits accruing to Members.
II An Overview of Non-Violation Complaints
（i）Related Texts
The use of different forms of complaints in Art. XXIII:1 suggests that the prohibition to nullify or impair benefits, i.e. favorable conditions of competition as to market access and on the market, cannot be fully secured by compliance with specific treaty obligations. And it is necessary to establish equitable remedies such as non-violation or situation remedies outside of the proper province of legal obligations.
Unique from generally offering the opportunity for parties to a treaty to request consultation and relief from measures undertaken by other parties, such relief in the WTO legal system distinguishes violation and non-violation claims, or legal and non-legal causes of action. Under Art. XXIII:1(b), a Member can bring a non-violation complaint when the negotiated balance of concessions between Members is upset by the application of a measure, whether or not this measure is inconsistent with the provisions of the covered agreement. The existence of a non-violation remedy under Art.XXIII:1(b) of the GATT 1994 requires Members of the WTO to adhere to the principles of the covered agreements, even if there are no rules forbidding the particular action taken. And the non-violation remedy is handled specifically in Art. 26.1 of the DSU which reads:
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