WTO Dispute Settlement Mechanism(2)/刘成伟(82)
As to the benefits in negotiations, claims of nullification or impairment should be reviewed within the framework generally applicable both to the WTO treaties and to the process of treaty formation under the WTO, because of the obligation that members have to negotiate in good faith just as they do in implementing and the principles of customary international law, i.e. pacta sunt servanda with extended applicability not only to performance of treaties but also to treaty negotiation.
(3) As to the causality between measures and nullification or impairment, it must be demonstrated that the competitive position is being upset by the application of a measure not reasonably anticipated. And such a change in the balance can be brought about either by an action or by a non-action.
To sum up, significantly different from violation complaints, with the lack of a formal presumption, the establishment of a non-violation complaint puts much more burden of proof on the side of the complainant. The role of panels charged with examining claims under Art. XXIII:1(b) is to make an objective assessment of whether, in light of all the relevant facts and circumstances in the matter before them, particular measures taken by the respondent have nullified or impaired benefits accruing to the complainant within the meaning of Art. XXIII:1(b), i.e., to determine whether the complainant has demonstrated the competitive position is being upset by the application of a measure not reasonably anticipated.
总共85页
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