WTO Dispute Settlement Mechanism(2)/刘成伟(59)
As noted previously, a WTO member may be assumed, for the purpose of Art. XXIII, to have a reasonable expectation, failing evidence to the contrary, that the value of the concession will not be nullified or impaired by the member which granted the concession by the subsequent introduction or increase of a domestic measure. And in this connexion it is noted that the expression “reasonable expectation” is qualified by the words “failing evidence to the contrary”. By this it suggests that the presumption is that unless such pertinent facts were available at the time the concession was negotiated, it is then reasonably to be expected that the concession would not be nullified or impaired by the introduction or increase of a domestic measure. I.e., the complainant could not have reasonably anticipated that its benefits would be offset by the subsequent application of a measure by the complained-of Government. As suggested, in order for expectations of a benefit to be legitimate, the challenged measures must not have been reasonably anticipated at the time the 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. However, what factors should be considered to determine whether a Member should have reasonably anticipated measures that it claims nullified or impaired benefits? In this regard, the Panel in Japan-Film（DS44）rules in relevant part:14
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