WTO Dispute Settlement Mechanism(2)

affected by the EC bananas regime and by its effects on world supplies and world prices of bananas. The Appellate Body decides that these are matters relevant to the question of the standing of the United States unde

r the GATT 1994. They are equally relevant to the question whether the European Communities has rebutted the presumption of nullification or impairment.
To go on with their analysis, the Appellate Body refer to the Panel Report on US-Superfund, to which the Panel in present case referred. In that case, the panel examined whether measures with “only an insignificant effect on the volume of exports do nullify or impair benefits under Article III:2”, and concluded (and in so doing, confirmed the views of previous panels) that: “Article III:2, first sentence, cannot be interpreted to protect expectations on export volumes; it protects expectations on the competitive relationship between imported and domestic products. A change in the competitive relationship contrary to that provision must consequently be regarded ipso facto as a nullification or impairment of benefits accruing under the General Agreement. A demonstration that a measure inconsistent with Article III:2, first sentence, has no or insignificant effects would therefore in the view of the Panel not be a sufficient demonstration that the benefits accruing under that provision had not been nullified or impaired even if such a rebuttal were in principle permitted”. The Appellate Body finds that the reasoning in US-Superfund applies equally in present case. For these reasons, the Appellate Body concludes that they find no legal basis on which to reverse the conclusions of the Panel.
（iv）A Summary
As to the concept of nullification or impairment in violation cases, there is a presumption suggesting that a violation constitute a prima facie case of nullification or impairment pursuant to Art. 3.8 of the DSU. And a prima facie case is where, in the absence of effective refutation by the defending party, a panel is required, as a matter of law, to rule in favor of the complaining party presenting the prima facie case. However, the presumption has in practice operated as an irrefutable presumption.
Over the last decades of GATT/WTO dispute settlement practice, the violation of obligations has been presumed to cause impairment and no contracting party or WTO member has been allowed to rebut successively that presumption. It has become a truism of GATT/WTO jurisprudence that, lack of actual trade cannot be determinative for a finding that no violation of a provision occurred because it cannot be excluded that the absence of trade is the result of an illegal measure. Therefore, in the case of violation complaints, the concept of nullification or impairment has not had any practical impact over the last years because of the existence of such a “presumption”.
Indeed, in a multilateral trade order that prescribes conditions of competition and therefore doesn’t guarantee trade results but trade opportunities or competitive relations between members, a change in the competitive relationship contrary to that provision must consequently be regarded ipso facto as a nullification or impairment

of benefits accruing to Members.

II An Overview of Non-Violation Complaints
（i）Related Texts
The use of different forms of complaints in Art. XXIII:1 suggests that the prohibition to null

《WTO Dispute Settlement Mechanism(2)(第7页)》