WTO Dispute Settlement Mechanism(2)/刘成伟

WTO Dispute Settlement Mechanism(2)/刘成伟(71)
Conglomerating the actual wording of (b) and (c) of Art. XXIII:1, the panels acknowledge that this change in the balance can be brought about either by an action or by a non-action. Further, although not tested, dicta suggests that an impairment need not be limited to the disadvantaging of a complaining party, it may also include actions or non-actions that result in a benefit to the responding party, especially when the responding party is not a original negotiating party. One could infer that it is the unjust benefit that is causing the impairment and not the unjustified harm from the action that is a possible basis of an impairment claim. However, causality may be one of the more factually complex areas of examination. In this connection, in the three prior Non-violation cases where panels found that the complaining parties had failed to provide a detailed justification to support their claims, the issue turned primarily on the lack of evidence of causality. We will explore some aspects general as to the causality in the following paragraphs.

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