[ 刘成伟 ]——(2003-7-7) / 已阅74098次

Section Three
Establishment of Non-Violation Complaints

I Introduction
As it suggests of the corresponding provisions, the most significant difference between violation complaints and non-violation ones is, while the infringement of an obligation under the covered agreements is considered prima facie to constitute a case of nullification or impairment by establishing a formal presumption, such a presumption does not exist in non-violation cases. With the lack of such a presumption, the establishment of a non-violation complaint puts much more burden of proof on the side of the complainant.
In this regard, the Panel in Japan – Film (DS44) summarizes the common test for non-violation cases in the following manner: “The text of Article XXIII:1(b) establishes three elements that a complaining party must demonstrate in order to make out a cognizable claim under Article XXIII:1(b): (1) application of a measure by a WTO Member; (2) a benefit accruing under the relevant agreement; and (3) nullification or impairment of the benefit as the result of the application of the measure.”1
While in Korea-Government Procurement (DS163) the Panel adds a notion developed in all these non-violation cases that, the nullification or impairment of the benefit as a result of the measure must be contrary to the reasonable expectations of the complaining party at the time of the agreement. Therefore, the Panel there finds that 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.2 In the following paragraphs we will touch respectively on these elements.

II Application of a Measure: Scope of Measures Covered by Art. XXIII:1(b)
In analyzing the elements of a non-violation claim, a logical starting point is the requirement that there be an application of a measure by a WTO Member. In this regard, in most cases, the issue is not whether or not a measure in fact exists, but rather whether such measures have contributed in a way to the nullification or impairment of benefits accruing to the applicant within the terms of Art. XXIII:1(b).
（i）Measures short of Legally Binding Obligations
As the WTO Agreement is an international agreement, in respect of which only national governments and separate customs territories are directly subject to obligations, it follows by implication that the term measure in Art. XXIII:1(b) and Art. 26.1 of the DSU, as elsewhere in the WTO Agreement, refers only to policies or actions of governments, not those of private parties. But while this “truth” may not be open to question, there have been a number of trade disputes in relation to which panels have been faced with making sometimes difficult judgments as to the extent to which what appear on their face to be private actions may nonetheless be attributable to a government because of some governmental connection to or endorsement of those actions. In this respect, GATT/WTO cases demonstrate that the fact that an action is taken by private parties does not rule out the possibility that it may be deemed to be governmental if there is sufficient government involvement with it. In short, the ordinary meaning of a measure in Art. XXIII:1(b) certainly encompasses a law or regulation enacted by a government according to Art. XVI:4 of the WTO Agreement. But it seems broader than that and may include other governmental actions short of legally enforceable enactments.
In Japan-Film (DS44)3, the parties disagree on whether the measure at issue, referred to as “administrative guidance” by Japan, is a measure in the sense of Art. XXIII:1(b). Japan argues that measures for purposes of Art. XXIII:1(b) must either provide benefits or impose obligations, and that to impose obligations the measure must be a government policy or action which has imposed legally binding obligations or the substantive equivalent. The US position is that the term measure in Art. XXIII:1(b) should not be limited to refer only to legally binding obligations or their substantive equivalent. It argues in favor of a more encompassing definition of the term.
The Panel rules firstly that it is not useful for them to try to place specific instances of administrative guidance into one general category or another.4 They think it is necessary for them, as it was for GATT panels in the past, to examine each alleged “measure” to see whether it has the particular attributes required of a measure for Art. XXIII:1(b) purposes.
To go on with their analysis, the Panel reviews GATT jurisprudence, particularly the Panel Report on Japan-Semi-conductors, in that case, the panel found that although a measure was not mandatory, it could be considered a restriction subject to Art. XI:1 of GATT because “sufficient incentives or disincentives existed for non-mandatory measures to take effect ... [and] the operation of the measures ... was essentially dependent on Government action or intervention [because in such a case] the measures would be operating in a manner equivalent to mandatory requirements such that the difference between the measures and mandatory requirements was only one of form and not of substance ...”. The Panel in present case considers that this ruling suggests that where administrative guidance created incentives or disincentives largely dependent upon governmental action for private parties to act in a particular manner, it is considered a governmental measure. 5
Recalling the criteria applied in Japan-Semi-conductors, i.e., administrative guidance must create incentives or disincentives to act and compliance with the guidance must depend largely on governmental action, for determining whether or not a formally non-binding measure should be assimilated to a governmental restriction under Art. XI:1, the Panel in present case considers that these criteria would certainly also lend themselves satisfactorily to the definition of the term measure under Art. XXIII:1(b). However, they also note that there is nothing in Japan-Semi-conductors suggesting that this incentives/disincentives test should be seen as the exclusive test for characterizing formally non-binding measures as governmental. The Panel finds, therefore, that Japan-Semi-conductors should not be seen as setting forth the exclusive test or outer limit of what may be considered to constitute a measure under Art. XXIII:1(b).
In short, a government policy or action need not necessarily have a substantially binding or compulsory nature for it to entail a likelihood of compliance by private actors in a way so as to nullify or impair legitimately expected benefits within the purview of Art. XXIII:1(b). Indeed, it is clear that non-binding actions, which include sufficient incentives or disincentives for private parties to act in a particular manner, can potentially have adverse effects on competitive conditions of market access. For example, a number of non-violation cases have involved subsidies, receipt of which requires only voluntary compliance with eligibility criteria. Moreover, it is conceivable, in cases where there is a high degree of cooperation and collaboration between government and business, e.g., where there is substantial reliance on administrative guidance and other more informal forms of government-business cooperation, that even non-binding, hortatory wording in a government statement of policy could have a similar effect on private actors to a legally binding measure or regulatory administrative guidance.
Consequently, the Panel rules that they should be open to a broad definition of the term measure for purposes of Art. XXIII:1(b). That is to say, it is necessary for them to examine each alleged “measure”, whether a binding government action or a non-binding government action with an effect similar to a binding one, to see whether it has the particular attributes required of a measure for Art. XXIII:1(b) purposes. The Panel reaches this conclusion in considering the purpose of Art. XXIII:1(b), which is to protect the balance of concessions under GATT by providing a means to redress government actions not otherwise regulated by GATT rules that nonetheless nullify or impair a Member's legitimate expectations of benefits from tariff negotiations. To achieve this purpose, as observed by the Panel, it is important that the kinds of government actions considered to be measures covered by Art. XXIII:1(b) should not be defined in an unduly restrictive manner. Otherwise, there is the risk of cases, in which governments have been involved one way or another in the nullification or impairment of benefits, which will not be redressable under Art. XXIII:1(b), thereby preventing the achievement of its purpose. In fact, it is difficult to establish bright-line rules in this regard.
However, as stressed by the Panel, giving a broad definition to measure does not expand the scope of the Art. XXIII:1(b) remedy because it remains incumbent on the complaining Member to clearly demonstrate how the measure at issue results in or causes nullification or impairment of benefits. At the same time, it may also be true that not every utterance by a government official or study prepared by a non-governmental body at the request of the government or with some degree of government support can be viewed as a measure of a Member government. At all events the responding Member's government is only responsible for what it has itself caused. Thus, that possibility will need to be examined on a case-by-case basis.
（ii）Measures Falling under Other Provisions of the GATT 1994
In EC–Asbestos (DS135), before the Panel, Canada claims that, under Art. XXIII:1(b) of the GATT 1994, the application of the measure at issue nullified or impaired benefits accruing to Canada. The European Communities raises preliminary objections, arguing on two grounds that the measure fall outside the scope of application of Art. XXIII:1(b). First, the European Communities contends that Art. XXIII:1(b) applies only to measures which does not otherwise fall under other provisions of the GATT 1994. Second, the European Communities argues that, while it may be possible to have “legitimate expectations” in connection with a purely “commercial” measure, it is not possible to claim “legitimate expectations” with respect to a measure taken to protect human life or health, which can be justified under Art. XX(b) of the GATT 1994.6
As to the first preliminary objection, the Panel finds as follows:7
“The EC seem to believe that the fact that a measure is ‘justified’ on the basis of Article XX creates a legal situation different, on the one hand, from the situation in which the measure violates a provision of the GATT 1994 and, on the other, from the situation in which the measure does not fall under the provisions of the GATT 1994. In support of their position, the EC cite a passage from the Panel Report in Japan - Film which mentions that Article XXIII:1(b) provides ‘the means to redress government actions not otherwise regulated by GATT rules …’. The Communities also refer to the introductory clause of Article XX which states that ‘nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures’ necessary to protect human life or health.
The Panel recalls, first of all, that both the preamble to Article 26.1 of the Understanding and Article XXIII:1(b) use the words ‘measure, whether or not it conflicts with the provisions [of the particular agreement]’. To begin with, it should be noted that the wording of Article XXIII:1(b) shows unequivocally that this provision applies both in situations in which a measure conflicts and in situations in which it does not conflict with the provisions of the GATT 1994. Above, we found that the treatment accorded by the Decree to chrysotile asbestos fibres violated Article III:4 of the GATT 1994 as such, in as much as these products were like the substitute fibres mentioned by the parties and the treatment of products containing chrysotile asbestos and products containing the substitute fibres mentioned by the parties was discriminatory. Accordingly, the Decree conflicts with the provisions of Article III:4, in the sense in which that word is used in Article XXIII:1(b). However, we note that the introductory clause of Article XX states that ‘nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures’ necessary to protect human life or health, which might suggest that a provision consistent with the requirements of Article XX no longer conflicts with Article III:4, because Article III:4 cannot be construed as preventing this kind of measure. However, whether a measure justified on the basis of Article XX of the GATT 1994 is considered still to be in conflict with Article III:4 or is considered no longer to conflict with Article III:4 because justified under Article XX, under the terms of Article XXIII:1(b) the latter continues to be applicable to it.
We also note, firstly, that the introductory clause to Article XX, to which the EC refer, concerns the adoption or enforcement of measures necessary to protect health. The application of Article XXIII:1(b) does not prevent either the adoption or the enforcement of the Decree concerned. Article 26:1(b) stipulates that even where a measure has been found to nullify or impair benefits under, or impede the attainment of objectives, of the GATT 1994 without violation thereof, there is no obligation to withdraw the measure. Accordingly, there is no contradiction between the invocation of Article XX and the application of Article XXIII:1(b). However, that Article must be applied in such a way as to protect the balance of rights and duties negotiated. Accordingly, we do not consider that the text of Article XXIII:1(b) or that of Article XX or, finally, that of Article 26.1 of the Understanding supports the EC's interpretation.
Secondly, we do not consider that the passage from the Japan - Film report cited by the EC supports its interpretation either. Admittedly, the words used by the panel, taken in isolation, might at first glance appear to confirm the EC's position, insofar as it refers to ‘government actions not otherwise regulated by GATT rules’. The use of the word ‘regulated’ could signify that the field of application of Article XXIII:1(b) covered only situations in which no provision of the GATT was applicable. First of all, it is our opinion that the fact that a measure does not violate Article III:4 does not necessarily mean that the latter is not applicable to it. Article III:4 applies to any law, regulation or requirement affecting the internal sale, offering for sale, purchase, transportation, distribution or use of imported products and like products of national origin. Consequently, even if the EC's interpretation were correct, it would not apply in the present case insofar as Article III:4 continues to be applicable to the Decree. Next, it should be noted that the panel in Japan - Film refers, in the footnote at the end of the sentence cited by the EEC, to the EEC - Oilseeds report which states, in particular, that:
‘the Panel noted that these provisions, as conceived by the drafters and applied by the CONTRACTING PARTIES, serve mainly to protect the balance of tariff concessions. The idea underlying them is that the improved competitive opportunities that can legitimately be expected from a tariff concession can be frustrated not only by measures proscribed by the General Agreement but also by measures consistent with that Agreement’.
We consider that a ‘measure which is not otherwise regulated by GATT rules’, that is to say to which the GATT does not apply, is, a fortiori, ‘not in conflict’ with the GATT within the meaning of Article XXIII:1(b) or ‘consistent’ within the meaning of the EEC - Oilseeds report. Consequently, we find that the passage in the Japan - Film report cited by the EC, far from supporting their position, confirms the opinion according to which Article XXIII:1(b) applies to a measure whether it is consistent with the GATT because the GATT does not apply to it or is justified by Article XX.
For these reasons, we do not allow the EC's first argument.”
The European Communities appeals the Panel's findings and conclusions relating to the first preliminary objections. And this is the first occasion for the Appellate Body to examine Article XXIII:1(b) of the GATT 1994.
When the Appellate Body turns to the European Communities' argument that Art. XXIII:1(b) does not apply to measures falling within the scope of application of other provisions of the GATT 1994, they rule that: “[…] The text of Article XXIII:1(b) stipulates that a claim under that provision arises when a ‘benefit’ is being ‘nullified or impaired’ through the ‘application … of any measure, whether or not it conflicts with the provisions of this Agreement’. The wording of the provision, therefore, clearly states that a claim may succeed, under Article XXIII:1(b), even if the measure ‘conflicts’ with some substantive provisions of the GATT 1994. It follows that a measure may, at one and the same time, be inconsistent with, or in breach of, a provision of the GATT 1994 and, nonetheless, give rise to a cause of action under Article XXIII:1(b). Of course, if a measure ‘conflicts’ with a provision of the GATT 1994, that measure must actually fall within the scope of application of that provision of the GATT 1994. We agree with the Panel that this reading of Article XXIII:1(b) is consistent with the panel reports in Japan - Film and EEC - Oilseeds, which both support the view that Article XXIII:1(b) applies to measures which simultaneously fall within the scope of application of other provisions of the GATT 1994. Accordingly, we decline the European Communities' first ground of appeal under Article XXIII:1(b) of the GATT 1994. ” 8
（iii）Measures Concerning the Protection of Human Health
With regard to the EC's second argument in EC–Asbestos (DS135), the Panel rules that:9
“[…] [W]e note, first of all, that neither the text of Article XXIII:1(b) of the GATT 1994 nor that of Article 26:1 of the Understanding expressly incorporates the separation suggested by the EC between measures of a purely commercial nature and measures designed to protect human health. Although these articles require the existence of a measure - which neither of the Parties disputes - they do not distinguish between different types of measures. We have also found, on the basis of Article XX, that the application of the latter does not a priori exclude the application of Article XXIII:1(b). We therefore find that the terms and the context of Article XXIII:1(b) do not support the interpretation proposed by the EC.
Canada cites the preparatory work on the GATT 1947. On the basis of Article 32 of the Vienna Convention, we consider that it is not necessary to have recourse to the preparatory work unless, in particular, the interpretation based on the criteria of Article 31 leaves the meaning of the terms ambiguous or obscure or leads to a manifestly absurd or unreasonable result. Such is not the case. However, recourse to the preparatory work also makes it possible to confirm the meaning resulting from the application of Article 31.
In this respect, we note that the EC consider that Canada's reading of the preparatory work is selective. According to them, the potential problems of abuse and bad faith to which Canada alludes are adequately covered by the chapeau of Article XX. For the EC, there cannot be two sets of provisions which address the same problem twice.
Although it is not necessary to take a position on the content of the preparatory work, we consider that the EC's argument tends to confuse two aspects: the first is abuse resulting from the application of a measure falling within one of the paragraphs of Article XX. If a measure necessary to protect human health is applied in a manner that conflicts with the provisions of the introductory clause of Article XX, the measure will still be in conflict with the provisions of the GATT whose violation Article XX is supposed to justify. This aspect is very different from the situation in which a measure is perfectly justified in itself in relation to the GATT (as in the case of a measure which satisfies all the conditions of Article XX), but which, viewed in a given context, could give rise to a situation of nullification or impairment of a benefit under a tariff concession.
It remains, however, for us to discuss the EC's argument to the effect that the fundamental duty to protect human health cannot be compromised or restricted by the concept of non-violation nullification. We must begin by acknowledging that all the cases examined by panels so far have concerned situations in which the measure adopted following the negotiation of a concession was purely commercial in nature, generally a subsidy, a tariff preference or a measure relating to product distribution. Accordingly, we have no precedents to guide us. However, a preliminary remark, similar to that made in paragraph 8 above, is called for. A finding based on Article XXIII:1(b) of the GATT 1994 and Article 26.1 of the Understanding never results in an obligation not to apply or to withdraw the measure in question. The Member concerned can only be asked to make ‘a mutually satisfactory adjustment’. Article 26:1(b) also specifies that compensation may be part of a mutually satisfactory adjustment as final settlement of the dispute. The Member adopting a public health protection measure is totally free to continue to apply the measure concerned as it stands while offering in exchange compensation for the benefits nullified or impaired.
The Panel also considers, as did the panel in Japan - Film, that non-violation should be approached with caution and treated as an exceptional instrument of dispute settlement. It appears that Members which have negotiated a set of rights and obligations would only exceptionally expect to be challenged for actions not in contravention of those rights or obligations.
Moreover, the Panel is of the opinion that even if the justification of a measure by Article XX does not, in principle, make it impossible to invoke Article XXIII:1(b) in relation to the application of the measure justified, the situation of a measure falling under Article XX with respect to Article XXIII:1(b) cannot be quite the same as that of a measure consistent with another provision of the GATT 1994. This is because Article XX, which is headed ‘General Exceptions’, is intended, in particular, to ensure the protection of public health or, as stated by the Appellate Body in United States - Gasoline, to ‘permit important State interests - including the protection of human health […] to find expression’. The Panel considers that in accepting the WTO Agreement Members also accept a priori, through the introduction of these general exceptions, that Members will be able, at some point, to have recourse to these exceptions. Moreover, Members have attached to the use of these exceptions a certain number of conditions contained either in paragraphs (a) to (j) or in the introductory clause of Article XX. These conditions have generally been narrowly interpreted. The result is that (a)both the intended objective of these exceptions (pursuit of interests recognized a priori as being of greater importance than Members' commercial interests, since they can outweigh the latter) and (b)the specific conditions that must be satisfied by Members invoking these exceptions mean that, while recognizing that Article XXIII:1(b) applies to measures that fall under Article XX, we are justified in treating recourse to Article XIII:1(b) as particularly exceptional in relation to measures justified by Article XX(b).

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