WTO Dispute Settlement Mechanism(2)

t. XXIII:1(a) has formed the basis of almost all disputes under the GATT 1947 and the WTO Agreement. Dispute settlement under the GATT/WTO has always been dominated by violation complaints.
The concept of so-called violation complaints, developing from the provision of XXIII:1(a), refers to those complaints brought before the DSB by a WTO member when it thinks that any benefit accruing to it directly or indirectly under the covered agreement is being nullified or impaired as a result of the failure of another member of the WTO to carry out its obligations under that agreement. In 1960, the CONTRACTING PARTIES decided that a GATT-inconsistent measure was presumed to cause nullification or impairment and that it was up to the party complained against to demonstrate that this was not the case.1 This principle was assimilated in the dispute settlement procedures adopted at the end of the Tokyo Round, and is now reflected in Art. 3.8 of the DSU, which reads:

“In cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of

nullification or impairment. This means that there is normally a presumption that a breach of the rules has an adverse impact on other Members parties to that covered agreement, and in such cases, it shall be up to the Member against whom the complaint has been brought to rebut the charge.”

From the provision above, we note that in violation complaints, there is an essential concept, i.e. a “presumption” which means that, the violation of obligations constitutes a prima facie case of nullification or impairment. Art. 3.8 of the DSU suggests that once an infringement or violation of the obligations assumed under a covered agreement has been demonstrated, a presumption that the violation causes nullification or impairment is established. At the same time, this provision seems to suggest that the presumption of nullification or impairment is rebuttable. However, it is not the case and as to be shown below, there has been no case of a successful rebuttal of the presumption in the history of the GATT/WTO.
(ii) Practice under the GATT Jurisprudence
In an action concerning import quotas on leather, Japan argued that since the quotas were not fully utilized, they did not restrain trade, and consequently had not caused a nullification or impairment of benefits. That panel rejected the argument on the grounds that: “The existence of quantitative restrictions should be presumed to cause nullification or impairment not only because of any effect it had on the volume of trade but also for other reasons, e.g., it would lead to increased transaction costs and would create uncertainties which could affect investment plans.”2 This ruling at least indicates that a demonstration that no adverse trade impact has as yet occurred is insufficient to rebut the presumption.
And in 1987, a panel on the US-Superfund summarized the legal situation regarding the presumption of nullification or impairment as follows: “The Panel examined how the CONTRATING PARTIES have reacted in previous cases to claims that a measure inconsistent with the General Agreement had no adverse impact and therefore did not nullify or impair benefits accruing under the General Agreement to the contracting party that had brought the complaint. The Panel noted that such claims had been made in a number of cases but that th

《WTO Dispute Settlement Mechanism(2)(第5页)》