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IIAn Overview of Non-Violation Complaints
（i）Related Texts
The use of different forms of complaints in Art. XXIII:1 suggests that the prohibition to nullify or impair benefits, i.e. favorable conditions of competition as to market access and on the market, cannot be fully secured by compliance with specific treaty obligations. And it is necessary to establish equitable remedies such as non-violation or situation remedies outside of the proper province of legal obligations.
Unique from generally offering the opportunity for parties to a treaty to request consultation and relief from measures undertaken by other parties, such relief in the WTO legal system distinguishes violation and non-violation claims, or legal and non-legal causes of action. Under Art. XXIII:1(b), a Member can bring a non-violation complaint when the negotiated balance of concessions between Members is upset by the application of a measure, whether or not this measure is inconsistent with the provisions of the covered agreement. The existence of a non-violation remedy under Art.XXIII:1(b) of the GATT 1994 requires Members of the WTO to adhere to the principles of the covered agreements, even if there are no rules forbidding the particular action taken. And the non-violation remedy is handled specifically in Art. 26.1 of the DSU which reads:
“1. Non-violation Complaints of the Type Described in Paragraph 1（b）of Article XXIII of GATT 1994
Where the provisions of paragraph 1(b) of Article XXIII of GATT 1994 are applicable to a covered agreement, a panel or the Appellate Body may only make rulings and recommendations where a party to the dispute considers that any benefit accruing to it directly or indirectly under the relevant covered agreement is being nullified or impaired or the attainment of any objective of that Agreement is being impeded as a result of the application by a Member of any measure, whether or not it conflicts with the provisions of that Agreement. Where and to the extent that such party considers and a panel or the Appellate Body determines that a case concerns a measure that does not conflict with the provisions of a covered agreement to which the provisions of paragraph 1(b) of Article XXIII of GATT 1994 are applicable, the procedures in this Understanding shall apply, subject to the following:
(a) the complaining party shall present a detailed justification in support of any complaint relating to a measure which does not conflict with the relevant covered agreement;
(b) where a measure has been found to nullify or impair benefits under, or impede the attainment of objectives, of the relevant covered agreement without violation thereof, there is no obligation to withdraw the measure. However, in such cases, the panel or the Appellate Body shall recommend that the Member concerned make a mutually satisfactory adjustment;
(c) notwithstanding the provisions of Article 21, the arbitration provided for in paragraph 3 of Article 21, upon request of either party, may include a determination of the level of benefits which have been nullified or impaired, and may also suggest ways and means of reaching a mutually satisfactory adjustment; such suggestions shall not be binding upon the parties to the dispute;
(d) notwithstanding the provisions of paragraph 1 of Article 22, compensation may be part of a mutually satisfactory adjustment as final settlement of the dispute.”
Although Art. XXIII:1(b) of the GATT 1994 remains as it was, Art. 26.1 of the DSU codifies several aspects of the case law developed under the GATT jurisprudence. For instance, Art. 26.1(a) clarifies the principle set out in case law, of the need to accompany a non-violation complaint with specific evidence of harm. Also, the Article concretizes the technically non-violation nature of the case. Art. 26.1(b) sets forth special rules both pertaining to the reversal of burden of proof and justification, and to remedies. These deviate from the addressing of these issues in violation complaints in Arts. 3.8 and 22 of the DSU. Foremost of those deviations is that non-violation findings do not oblige the Member concerned to withdraw a measure not inconsistent with the agreements, instead the obligation is limited to provide mutually satisfactory adjustments, usually by means of compensation. Furthermore, Arts. 26.1(c) and 26.1(d) set forth special rules pertaining to the arbitration and compensation in non-violation complaints.
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