WTO Dispute Settlement Mechanism(2)/刘成伟(58)
As suggested by the 1961 report, in order for expectations of a benefit to be legitimate, the challenged measures must not have been reasonably anticipated at the time the tariff concession was negotiated. If the measures were anticipated, a Member could not have had a legitimate expectation of improved market access to the extent of the impairment caused by these measures.
Thus, under Article XXIII:1(b), the United States may only claim impairment of benefits related to improved market access conditions flowing from relevant tariff concessions by Japan to the extent that the United States could not have reasonably anticipated that such benefits would be offset by the subsequent application of a measure by the Government of Japan. In the case before us, there is disagreement between the parties on this issue of reasonable anticipation with respect to each and every ‘measure’ claimed by the United States to nullify and impair benefits accruing to it under GATT.”
（ii）Non-foreseeability of Measures at Issue
As noted above, for expectations to be legitimate, all measures of the party making the concession that could have been reasonably anticipated at the time of the concession must be taken into account. Of course, as with the first element (application of a measure), the complaining party has the burden of demonstrating the “benefit accruing”. In the context, there would be certain logic in making a distinction between the concept of legitimate expectation of a benefit and that of the reasonable foreseeability of a measure. In particular, the need to prove that a complained-of measure was objectively non-foreseeable at the time of negotiations leads to an implicit recognition of legitimacy of the expectations as crucial to the decision of whether or not the state can claim nullification or impairment.
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