Establishment of Non-Violation Complaints
刘成伟
【关键词】Section Three
【全文】
IIntroduction
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.
IIApplication 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 ...
the operation of the measures ... was essentially dependent on Government action or intervention
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.
