WTO Dispute Settlement Mechanism(2)/刘成伟(25)
We take note that Article 3.2 of the DSU requires that we seek within the context of a particular dispute to clarify the existing provisions of the WTO agreements in accordance with customary rules of interpretation of public international law. However, the relationship of the WTO Agreements to customary international law is broader than this. Customary international law applies generally to the economic relations between the WTO Members. Such international law applies to the extent that the WTO treaty agreements do not ‘contract out’ from it. To put it another way, to the extent there is no conflict or inconsistency, or an expression in a covered WTO agreement that implies differently, we are of the view that the customary rules of international law apply to the WTO treaties and to the process of treaty formation under the WTO.
As Korea has argued, non-violation is an exceptional concept within the WTO dispute settlement system. […] [As stated by the panel in Japan – Film, the non-violation nullification or impairment remedy should be approached with caution and treated as an exceptional concept.] Despite this caution, however, the panel in Japan - Film was of the view that the non-violation remedy had an important role - that of protecting the reasonable expectations of competitive opportunities through negotiated concessions.
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