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In our view, these observations by previous panels are entirely in line with the concept of pacta sunt servanda. The vast majority of actions taken by Members which are consistent with the letter of their treaty obligations will also be consistent with the spirit. However, upon occasion, it may be the case that some actions, while permissible under one set of rules (e.g., the Agreement on Subsidies and Countervailing Measures is a commonly referenced example of rules in this regard), are not consistent with the spirit of other commitments such as those in negotiated Schedules. That is, such actions deny the competitive opportunities which are the reasonably expected effect of such commitments.
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（v）Appropriate Attitudes as to Non-violation Remedy
On the one hand, although the non-violation remedy is an important and accepted tool of GATT/WTO dispute settlement and has been “on the books” for more than 50 years, there have only been eleven cases, among which there is only one case is reviewed by the Appellate Body, in which panels or working parties have substantively considered Article XXIII:1(b) claims by the end of 2002. This suggests that both the GATT and the WTO have approached this remedy with caution and, indeed, have treated it as an exceptional instrument of dispute settlement. In fact, in this regard the two parties in many such cases have also confirmed that the non-violation nullification or impairment remedy should be approached with caution and be treated as an exceptional concept. One panel explained that, “
he reason for this caution is straightforward. Members negotiate the rules that they agree to follow and only exceptionally would expect to be challenged for actions not in contravention of those rules”.10
However, the Panel in Japan-Film (DS44) observes that, “
hile we consider that the 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 above-mentioned need to safeguard the process of negotiating reciprocal tariff concessions. Our role as a panel charged with examining claims under Article XXIII:1(b) is, therefore, to make an objective assessment of whether, in light of all the relevant facts and circumstances in the matter before us, particular measures taken by Japan have nullified or impaired benefits accruing to the United States within the meaning of Article XXIII:1(b)”.11 And in next section an insight is taken into those common elements that have been reviewed by the panels or the Appellate Body charged with examining claims under Art. XXIII:1(b).
On the other hand, the Non-violation remedy prescribed in Art. XXIII:1(b) has given rise to controversy. While numerous commentators, together with various panels or the Appellate Body, have referred to the non-violation language of Art. XXIII:1(b) as a clause to maintain the balance of interests among members; others characterize the idea of allowing for non-violation complaints as superfluous at best, condemning it as a “useless and dangerous construction”, and many lawyers are reluctant to accept the concept of non-violation as legitimate.
Indeed, one could consider non-violation complaints a necessary ingredient of a system that primarily serves as a forum for negotiations but fear that liberal usage of the provision will result in harassment complaints based more on domestic political concerns than on any true wrong-doing by the respondent member. In fact, past practices of the GATT/WTO develop an equitable branch of good faith doctrine, known as the protection of legitimate expectations（to be scrutinized in next section）, to avoid the abuse of non-violation remedy.
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