[ 刘成伟 ]——(2003-7-7) / 已阅74071次

IV Nullification or Impairment of Benefit: Causality
As noted above, panels and the Appellate Body have broadly defined nullification or impairment of a benefit. However, panels further develop this concept that they adhere to a narrow view of what circumstances could bring about a nullification as: “the cases in which non-violation complaints were accepted…concerned very specific circumstances…They concerned situations of a perceived de facto withdrawal of a tariff concession because of an unexpected alteration of the conditions of competition”.
Conglomerating the actual wording of (b) and (c) of Art. XXIII:1, the panels acknowledge that this change in the balance can be brought about either by an action or by a non-action. Further, although not tested, dicta suggests that an impairment need not be limited to the disadvantaging of a complaining party, it may also include actions or non-actions that result in a benefit to the responding party, especially when the responding party is not a original negotiating party. One could infer that it is the unjust benefit that is causing the impairment and not the unjustified harm from the action that is a possible basis of an impairment claim. However, causality may be one of the more factually complex areas of examination. In this connection, in the three prior Non-violation cases where panels found that the complaining parties had failed to provide a detailed justification to support their claims, the issue turned primarily on the lack of evidence of causality. We will explore some aspects general as to the causality in the following paragraphs.
In Japan-Film (DS44), the Panel rules in pertinent part as:17
“The third required element of a non-violation claim under Article XXIII:1(b) is that the benefit accruing to the WTO Member (e.g., improved market access from tariff concessions) is nullified or impaired as the result of the application of a measure by another WTO Member. In other words, it must be demonstrated that the competitive position of the imported products subject to and benefitting from a relevant market access (tariff) concession is being upset by (‘nullified or impaired ... as the result of’) the application of a measure not reasonably anticipated. The equation of ‘nullification or impairment" with "upsetting the competitive relationship’ established between domestic and imported products as a result of tariff concessions has been consistently used by GATT panels examining non-violation complaints. For example, the EEC - Oilseeds panel, in describing its findings, stated that it had "found ... that the subsidies concerned had impaired the tariff concession because they upset the competitive relationship between domestic and imported oilseeds, not because of any effect on trade flows". The same language was used in the Australian Subsidy and Germany - Sardines cases. Thus, in this case, it is up to the United States to prove that the governmental measures that it cites have upset the competitive relationship between domestic and imported photographic film and paper in Japan to the detriment of imports. In other words, the United States must show a clear correlation between the measures and the adverse effect on the relevant competitive relationships.
We consider that this third element -- causality -- may be one of the more factually complex areas of our examination. In this connection, we note that in the three prior non-violation cases in which panels found that the complaining parties had failed to provide a detailed justification to support their claims, the issue turned primarily on the lack of evidence of causality. Four issues related to causation merit general discussion. First, the question of the degree of causation that must be shown -- ‘but for’ or less. Second, the relevance of the origin-neutral nature of a measure to causation of nullification or impairment. Third, the relevance of intent to causality. And fourth, the extent to which measures may be considered collectively in an analysis of causation.
As to the first issue, the United States argues that it need not show that the measures in issue are a ‘but for’ cause of impairment of market-access conditions for imported film and paper, but that it need only demonstrate that these measures are ‘a’ cause of such distortion. Japan argues that a clear linkage between the measure at issue and the alleged nullification or impairment must be proved by the complaining party in order to establish the necessary causal connection. Specifically, Japan states that the issue is whether the complaining party has provided a ‘detailed justification’ in support of its claim that a measure has caused nullification or impairment. In our view, Japan should be responsible for what is caused by measures attributable to the Japanese Government as opposed, for example, to what is caused by restrictive business conduct attributable to private economic actors. At this stage of the proceeding, the issue is whether such a measure has caused nullification or impairment, i.e., whether it has made more than a de minimis contribution to nullification or impairment.
In respect of the second issue, Japan argues that all of the accused ‘measures’ are neutral as to origin of the goods, none of them distinguishing between the imported and domestic products concerned, and that there is accordingly no causal connection between the alleged ‘measures’, individually or collectively, and any unfavourable competitive conditions for imported film and paper. The United States responds that the ‘measures’ at issue have had a disparate impact on imported products in their application, thereby upsetting competitive conditions of market access for imported film and paper. In our view, even in the absence of de jure discrimination (measures which on their face discriminate as to origin), it may be possible for the United States to show de facto discrimination (measures which have a disparate impact on imports). However, in such circumstances, the complaining party is called upon to make a detailed showing of any claimed disproportionate impact on imports resulting from the origin-neutral measure. And, the burden of demonstrating such impact may be significantly more difficult where the relationship between the measure and the product is questionable.
We note that WTO/GATT case law on the issue of de facto discrimination is reasonably well-developed, both in regard to the principle of most-favoured-nation treatment under GATT Article I and in regard to that of national treatment under GATT Article III. The consistent focus of GATT and WTO panels on ensuring effective equality of competitive opportunities between imported products from different countries and between imported and domestic products has been confirmed by the Appellate Body in its reports on Japan - Alcoholic Beverages and most recently in Bananas III, with respect to both GATT and GATS non-discrimination rules. We consider that despite the fact that these past cases dealt with GATT provisions other than Article XXIII:1(b), the reasoning contained therein appears to be equally applicable in addressing the question of de facto discrimination with respect to claims of non-violation nullification or impairment, subject, of course, to the caveat, that in an Article XXIII:1(b) case the issue is not whether equality of competitive conditions exists but whether the relative conditions of competition which existed between domestic and foreign products as a consequence of the relevant tariff concessions have been upset.
The third issue is the relevance of intent to causality. The parties disagree in many cases whether the intent behind a specific measure is to limit imports or to promote an unrelated policy goal. From our reading of the measures and consideration of the parties' arguments, it is apparent that there may have been more than one reason motivating the adoption of measures. We note, however, that Article XXIII:1(b) does not require a proof of intent of nullification or impairment of benefits by a government adopting a measure. What matters for purposes of establishing causality is the impact of a measure, i.e. whether it upsets competitive relationships. Nonetheless, intent may not be irrelevant. In our view, if a measure that appears on its face to be origin-neutral in its effect on domestic and imported products is nevertheless shown to have been intended to restrict imports, we may be more inclined to find a causal relationship in specific cases, bearing in mind that intent is not determinative where it in fact exists. It remains for the complaining party to show that the specific measure it challenges does in fact nullify or impair benefits within the meaning of Article XXIII:1(b).
Finally, as for the US position that the Panel should examine the impact of the measures in combination as well as individually (a position contested by Japan), we do not reject the possibility of such an impact. It is not without logic that a measure, when analyzed in isolation, may have only very limited impact on competitive conditions in a market, but may have a more significant impact on such conditions when seen in the context of -- in combination with -- a larger set of measures. Notwithstanding the logic of this theoretical argument, however, we are sensitive to the fact that the technique of engaging in a combined assessment of measures so as to determine causation is subject to potential abuse and therefore must be approached with caution and circumscribed as necessary.
For the sake of a complete analysis of the US claims, we will examine each alleged ‘measure’ in light of each of the three elements of a non-violation claim. Thus, even if we find an alleged ‘measure’ is not a measure for purposes of Article XXIII:1(b), we will continue with an analysis of the other two elements. Similarly, even if we find that a measure should have been reasonably anticipated, we will nevertheless carry through with the causality analysis.”
V Summary and Conclusions
Operating as a device meant to ensure the integrity and longevity of the GATT/WTO system in the face of ever more complex methods of circumventing explicit tariff bindings and the prohibitions on non-tariff trade restraint instruments, the existence of a non-violation remedy under Art. XXIII:1(b) of the GATT 1994 requires WTO Members to adhere to the principles of the Agreements, even if there are no rules forbidding the particular action taken. Although non-violation remedy should be approached with caution and should remain an exceptional remedy, each case should be examined on its own merits, bearing in mind the need to safeguard the improved competitive opportunities that can legitimately be expected but which can be frustrated by measures textually consistent with the covered Agreement.
With regard to the establishment of a Non-violation claim, as summarized by a panel, 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.
(1) As to the application of a measure, the term “measure” in Art. XXIII:1(b) and Art. 26.1 of the DSU, as elsewhere in the WTO Agreements, refers only to policies or actions of attributable to governments, not those of private parties. However, in this regard, it is important to approach the issue of whether the “measures” in dispute are private or attributable to the Government with particular care, sensitive to the possibility that at times it may not be possible to distinguish with great precision a bright-line test of a measure and that possibility will need to be examined on a case-by-case basis. In practice, panels under the GATT/WTO have often taken an expansive view of what constitutes a measure, bearing in mind that the applicant must, in any event, demonstrate that the measure does in fact result in nullification or impairment of expected benefits.
Furthermore, Art. XXIII:1(b) applies to measures which simultaneously falls within the scope of application of other provisions of the GATT 1994. Also, the use of the word “any” in Art. XXIII:1(b) suggests that measures of all types may give rise to such a cause of action. In practice, in any event, an attempt to draw the distinction between various types of measures would be very difficult. Art. XXIII:1(b) must be applied in such a way as to protect the balance of rights and duties negotiated. However, in any event, it remains incumbent on the complaining Member to clearly demonstrate how the measure at issue results in or causes nullification or impairment of benefits.
(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.
On the other hand, when the measure shown to be prior to the conclusion, the respondent raises a presumption that the complainant should be held to have anticipated those measures and it is for the complainant to rebut that presumption. Such a rebuttal may be established by showing that the short time period between this particular measure's publication and the formal conclusion makes it unrealistic to have an opportunity to reopen negotiations even if it had anticipated the possible adverse impact of the measures. To the extent that knowledge of a measure's existence is not equivalent to understanding the impact of the measure on a specific product market, where the complainant claims that it did not know of the underlying impact of the disputed measures, it must therefore clearly demonstrate why initially it could not have reasonably anticipated the effect of an existing measure and when it did realize the effect. A simple statement that a Member's measures were so opaque and informal is inadequate.
As to the benefits under successive rounds, where tariff concessions have been progressively improved, the benefits -- expectations of improved market access -- accruing directly or indirectly under different tariff concession protocols incorporated in GATT 1994 can be read in harmony.
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.

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