WTO Dispute Settlement Mechanism(2)
e 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.
（ii）Relationship between Arts. XXIII:1(a) and XXIII:1(b)
In EC –Asbestos (DS135), it is the first occasion for the Appellate Body to examine Art. XXIII:1(b) of the GATT 1994. For this reason, the Appellate Body think there it necessary for them to make certain preliminary observations about the relationship between Arts. XXIII:1(a) and XXIII:1(b) of the GATT 1994.
In this respect, the Appellate Body rules that, “Article XXIII:1(a) sets forth a cause of action for a claim that a Member has failed to carry out one or more of its obligations under the GATT 1994. A claim under Article XXIII:1(a), therefore, lies when a Member is alleged to have acted inconsistently with a provision of the GATT 1994. Article XXIII:1(b) sets forth a separate cause of action for a claim that, through the application of a measure, a Member has ‘nullified or impaired’ ‘benefits’ accruing to another Member, ‘whether or not that measure conflicts with the provisions’ of the GATT 1994. Thus, it is not necessary, under Article XXIII:1(b), to establish that the measure involved is inconsistent with, or violates, a provision of the GATT 1994. Cases under Article XXIII:1(b) are, for this reason, sometimes described as ‘non-violation’ cases, though, the word ‘Non-violation’ does not appear in this provision.”7
（iii）Underlying Purpose of Art. XXIII:1(b)
Non-violation complaints are rooted in the GATT's origins as an agreement intended to protect the reciprocal tariff con
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.
（ii）Relationship between Arts. XXIII:1(a) and XXIII:1(b)
In EC –Asbestos (DS135), it is the first occasion for the Appellate Body to examine Art. XXIII:1(b) of the GATT 1994. For this reason, the Appellate Body think there it necessary for them to make certain preliminary observations about the relationship between Arts. XXIII:1(a) and XXIII:1(b) of the GATT 1994.
In this respect, the Appellate Body rules that, “Article XXIII:1(a) sets forth a cause of action for a claim that a Member has failed to carry out one or more of its obligations under the GATT 1994. A claim under Article XXIII:1(a), therefore, lies when a Member is alleged to have acted inconsistently with a provision of the GATT 1994. Article XXIII:1(b) sets forth a separate cause of action for a claim that, through the application of a measure, a Member has ‘nullified or impaired’ ‘benefits’ accruing to another Member, ‘whether or not that measure conflicts with the provisions’ of the GATT 1994. Thus, it is not necessary, under Article XXIII:1(b), to establish that the measure involved is inconsistent with, or violates, a provision of the GATT 1994. Cases under Article XXIII:1(b) are, for this reason, sometimes described as ‘non-violation’ cases, though, the word ‘Non-violation’ does not appear in this provision.”7
（iii）Underlying Purpose of Art. XXIII:1(b)
Non-violation complaints are rooted in the GATT's origins as an agreement intended to protect the reciprocal tariff con
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