WTO Dispute Settlement Mechanism(2)/刘成伟(47)
It remains, however, for us to discuss the EC's argument to the effect that the fundamental duty to protect human health cannot be compromised or restricted by the concept of non-violation nullification. We must begin by acknowledging that all the cases examined by panels so far have concerned situations in which the measure adopted following the negotiation of a concession was purely commercial in nature, generally a subsidy, a tariff preference or a measure relating to product distribution. Accordingly, we have no precedents to guide us. However, a preliminary remark, similar to that made in paragraph 8 above, is called for. A finding based on Article XXIII:1(b) of the GATT 1994 and Article 26.1 of the Understanding never results in an obligation not to apply or to withdraw the measure in question. The Member concerned can only be asked to make ‘a mutually satisfactory adjustment’. Article 26:1(b) also specifies that compensation may be part of a mutually satisfactory adjustment as final settlement of the dispute. The Member adopting a public health protection measure is totally free to continue to apply the measure concerned as it stands while offering in exchange compensation for the benefits nullified or impaired.
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