Non-Violation Claims

N.2.1 Article XXIII:1(b) of the GATT 1994 — General   back to top

N.2.1.1 EC — Asbestos, paras. 185–186
(WT/DS135/AB/R)
 

… 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; we note, though, that the word “non-violation” does not appear in this provision. The purpose of this rather unusual remedy was described by the panel in European Economic Community — Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins (“EEC — Oilseeds”) in the following terms:
 

The idea underlying [the provisions of Article XXIII:1(b)] is that the improved competitive opportunities that can legitimately be expected from a tariff concession can be frustrated not only by measures proscribed by the General Agreement but also by measures consistent with that Agreement. In order to encourage contracting parties to make tariff concessions they must therefore be given a right of redress when a reciprocal concession is impaired by another contracting party as a result of the application of any measure, whether or not it conflicts with the General Agreement. (emphasis added) [BISD 37S/86, para. 144]
 

Like the Panel in Japan — Measures Affecting Consumer Photographic Film and Paper (“Japan — Film”) [Panel Report, para. 10.37], we consider that the remedy in Article XXIII:1(b) “should be approached with caution and should remain an exceptional remedy”. …
 

N.2.2 Article XXIII:1(b) of the GATT 1994 — “any measure”. See also Legislation as such vs. Specific Application (L.1)   back to top

N.2.2.1 EC — Asbestos, paras. 187–188
(WT/DS135/AB/R)
 

… The wording of the provision, therefore, clearly states that a claim may succeed, under Article XXIII:1(b), even if the measure “conflicts” with some substantive provisions of the GATT 1994. It follows that a measure may, at one and the same time, be inconsistent with, or in breach of, a provision of the GATT 1994 and, nonetheless, give rise to a cause of action under Article XXIII:1(b). Of course, if a measure “conflicts” with a provision of the GATT 1994, that measure must actually fall within the scope of application of that provision of the GATT 1994. We agree with the Panel that this reading of Article XXIII:1(b) is consistent with the panel reports in Japan — Film and EEC — Oilseeds, which both support the view that Article XXIII:1(b) applies to measures which simultaneously fall within the scope of application of other provisions of the GATT 1994. …
 

… The use of the word “any” suggests that measures of all types may give rise to such a cause of action. The text does not distinguish between, or exclude, certain types of measure. Clearly, therefore, the text of Article XXIII:1(b) contradicts the European Communities’ argument that certain types of measure, namely, those with health objectives, are excluded from the scope of application of Article XXIII:1(b).