WTO Dispute Settlement Mechanism(2)/刘成伟(63)
（iii）Benefits in the Negotiations
As noted previously, “these observations [concerning non-violation cases] by previous panels are entirely in line with the concept of pacta sunt servanda”. However, one of the issues that arises in Korea-Government Procurement (DS163) is whether the concept of non-violation can arise in contexts other than the traditional approach represented by pacta sunt servanda. Can, for instance the question of error in treaty negotiation be addressed under Article 26 of the DSU and Article XXII:2 of the GPA? In this respect, the Panel rules that they see no reason why it could not. The Panel found that parties to a treaty had an obligation to negotiate in good faith just as they must implement the treaty in good faith. And they ruled in relevant part as follows:15
“Thus, on the basis of the ample evidence provided by both parties to the dispute, we will review the claim of nullification or impairment raised by the United States within the framework of principles of international law which are generally applicable not only to performance of treaties but also to treaty negotiation. To do otherwise potentially would leave a gap in the applicability of the law generally to WTO disputes and we see no evidence in the language of the WTO Agreements that such a gap was intended. If the non-violation remedy were deemed not to provide a relief for such problems as have arisen in the present case regarding good faith and error in the negotiation of GPA commitments (and one might add, in tariff and services commitments under other WTO Agreements), then nothing could be done about them within the framework of the WTO dispute settlement mechanism if general rules of customary international law on good faith and error in treaty negotiations were ruled not to be applicable. As was argued above, that would not be in conformity with the normal relationship between international law and treaty law or with the WTO Agreements.
总共85页
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