WTO Dispute Settlement Mechanism(2)/刘成伟(26)
In our view, these observations by previous panels are entirely in line with the concept of pacta sunt servanda. The vast majority of actions taken by Members which are consistent with the letter of their treaty obligations will also be consistent with the spirit. However, upon occasion, it may be the case that some actions, while permissible under one set of rules (e.g., the Agreement on Subsidies and Countervailing Measures is a commonly referenced example of rules in this regard), are not consistent with the spirit of other commitments such as those in negotiated Schedules. That is, such actions deny the competitive opportunities which are the reasonably expected effect of such commitments. […]”
（v）Appropriate Attitudes as to Non-violation Remedy
On the one hand, although the non-violation remedy is an important and accepted tool of GATT/WTO dispute settlement and has been “on the books” for more than 50 years, there have only been eleven cases, among which there is only one case is reviewed by the Appellate Body, in which panels or working parties have substantively considered Article XXIII:1(b) claims by the end of 2002. This suggests that both the GATT and the WTO have approached this remedy with caution and, indeed, have treated it as an exceptional instrument of dispute settlement. In fact, in this regard the two parties in many such cases have also confirmed that the non-violation nullification or impairment remedy should be approached with caution and be treated as an exceptional concept. One panel explained that, “[t]he reason for this caution is straightforward. Members negotiate the rules that they agree to follow and only exceptionally would expect to be challenged for actions not in contravention of those rules”.10
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