WTO Dispute Settlement Mechanism(2)/刘成伟(73)
We consider that this third element -- causality -- may be one of the more factually complex areas of our examination. In this connection, we note that in the three prior non-violation cases in which 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. Four issues related to causation merit general discussion. First, the question of the degree of causation that must be shown -- ‘but for’ or less. Second, the relevance of the origin-neutral nature of a measure to causation of nullification or impairment. Third, the relevance of intent to causality. And fourth, the extent to which measures may be considered collectively in an analysis of causation.
As to the first issue, the United States argues that it need not show that the measures in issue are a ‘but for’ cause of impairment of market-access conditions for imported film and paper, but that it need only demonstrate that these measures are ‘a’ cause of such distortion. Japan argues that a clear linkage between the measure at issue and the alleged nullification or impairment must be proved by the complaining party in order to establish the necessary causal connection. Specifically, Japan states that the issue is whether the complaining party has provided a ‘detailed justification’ in support of its claim that a measure has caused nullification or impairment. In our view, Japan should be responsible for what is caused by measures attributable to the Japanese Government as opposed, for example, to what is caused by restrictive business conduct attributable to private economic actors. At this stage of the proceeding, the issue is whether such a measure has caused nullification or impairment, i.e., whether it has made more than a de minimis contribution to nullification or impairment.
总共85页
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