WTO Dispute Settlement Mechanism(2)/刘成伟(78)
V Summary and Conclusions
Operating as a device meant to ensure the integrity and longevity of the GATT/WTO system in the face of ever more complex methods of circumventing explicit tariff bindings and the prohibitions on non-tariff trade restraint instruments, the existence of a non-violation remedy under Art. XXIII:1(b) of the GATT 1994 requires WTO Members to adhere to the principles of the Agreements, even if there are no rules forbidding the particular action taken. Although non-violation remedy should be approached with caution and should remain an exceptional remedy, each case should be examined on its own merits, bearing in mind the need to safeguard the improved competitive opportunities that can legitimately be expected but which can be frustrated by measures textually consistent with the covered Agreement.
With regard to the establishment of a Non-violation claim, as summarized by a panel, normal non-violation cases involve an examination as to whether there are: (1) an application of a measure by a WTO Member; (2) a benefit accruing under the relevant agreement; and (3) nullification or impairment of the benefit due to the application of the measure that could not have been reasonably expected by the exporting Member.
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