WTO Dispute Settlement Mechanism(2)/刘成伟(80)
(2) As to the existence of a benefit, with the lack of such a presumption as established in a violation complaint, there is something special for the definition of such a generally broadly interpreted “benefit” in non-violation complaints, i.e. the PLE.
PLE is an extension of the good faith requirement in this sense. Specifically, the non-foreseeabiliy is on point, which suggests that for expectations to be legitimate, crucial to the decision of nullification or impairment, a complained-of measure must be proved objectively non-foreseeable at the time of negotiations. In this respect, the matter is much more complicated needing addressing on a case-by-case basis, than to consider whether the measure was adopted before or after the conclusion of the negotiations.
On the one hand, in the case of measures demonstrated to be introduced subsequent to the conclusion, the complainant raises a presumption that it should not be held to have anticipated these measures and it is then for the respondent to rebut that presumption. Importantly, such a presumption may be rebutted, different from the actually non-rebuttable presumption in violation complaints. However, such rebuttal must bear a clear connection, it is not sufficient to claim the anticipation of measures on the basis of the consistence with or a continuation of a past general measure, nor is it appropriate to charge the complainant with the anticipation just because of the consistence of measures with the covered agreement or similarity to measures in other Members' markets.
总共85页
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