WTO Dispute Settlement Mechanism(2)/刘成伟(20)
(b) where a measure has been found to nullify or impair benefits under, or impede the attainment of objectives, of the relevant covered agreement without violation thereof, there is no obligation to withdraw the measure. However, in such cases, the panel or the Appellate Body shall recommend that the Member concerned make a mutually satisfactory adjustment;
(c) notwithstanding the provisions of Article 21, the arbitration provided for in paragraph 3 of Article 21, upon request of either party, may include a determination of the level of benefits which have been nullified or impaired, and may also suggest ways and means of reaching a mutually satisfactory adjustment; such suggestions shall not be binding upon the parties to the dispute;
(d) notwithstanding the provisions of paragraph 1 of Article 22, compensation may be part of a mutually satisfactory adjustment as final settlement of the dispute.”
Although Art. XXIII:1(b) of the GATT 1994 remains as it was, Art. 26.1 of the DSU codifies several aspects of the case law developed under the GATT jurisprudence. For instance, Art. 26.1(a) clarifies the principle set out in case law, of the need to accompany a non-violation complaint with specific evidence of harm. Also, the Article concretizes the technically non-violation nature of the case. Art. 26.1(b) sets forth special rules both pertaining to the reversal of burden of proof and justification, and to remedies. These deviate from the addressing of these issues in violation complaints in Arts. 3.8 and 22 of the DSU. Foremost of those deviations is that non-violation findings do not oblige the Member concerned to withdraw a measure not inconsistent with the agreements, instead the obligation is limited to provide mutually satisfactory adjustments, usually by means of compensation. Furthermore, Arts. 26.1(c) and 26.1(d) set forth special rules pertaining to the arbitration and compensation in non-violation complaints.
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