RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/124
28 January 1999
(99-0319)
Council for Trade-Related Aspects
of Intellectual Property Rights
NON-VIOLATION COMPLAINTS AND THE TRIPS AGREEMENT
Note by the Secretariat
1. Article 64.3 of the TRIPS Agreement requires the Council, during the five-year period ending
on 31 December 1999, to examine the scope and modalities of complaints of the type provided for
under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 made pursuant to the TRIPS
Agreement and submit its recommendations to the Ministerial Conference for approval.  In this
connection, at its meeting of 17 September 1998, the TRIPS Council requested1 the Secretariat to
prepare a factual background note on:
I. the experience with disputes so far under the TRIPS Agreement, including any
references made to non-violation issues;
II. the negotiating history of paragraphs 2 and 3 of Article 64;
III. the experience with non-violation complaints under the GATT/WTO;  andIV. any information available on the use of the non-violation concept in disputes on
intellectual property matters elsewhere.
2. The present note has been prepared in response to that request and follows the above
structure.  The text of Article 64 of the TRIPS Agreement and Article XXIII:1 of GATT 1994 is
reproduced in Annex 1.
3. The chapeau of Article XXIII:1 of GATT 1994 provides for two bases for complaint.  These
allow a Member to have recourse to dispute settlement where it considers that:
- "any benefit accruing to it directly or indirectly under this Agreement is being
nullified or impaired";  or
- "the attainment of any objective of the Agreement is being impeded".
4. The subparagraphs of Article XXIII:1 provide for three types of complaint, which are:
- those raised under subparagraph 1(a), commonly known as "violation" complaints;- those raised under subparagraph 1(b), commonly known as "non-violation"
complaints;  and
                                                     
1 IP/C/M/20, para. 79.IP/C/W/124
Page 2
- those raised under subparagraph 1(c), commonly known as "situation" complaints.2
5. Either of the bases of complaint in the chapeau may be raised in any of the types of complaint
in the subparagraphs, making a total of six possible categories of complaint.  Two of them concern
complaints raised under subparagraph 1(a) and are therefore outside the scope of this note.  Most
complaints raised under subparagraph 1(b) have been made on the basis that a benefit was allegedlybeing nullified or impaired, and the major section of Part III of this note will therefore be devoted to
the experience in this connection.  Part III also includes brief sections summarizing what little
experience there has been with complaints raised under subparagraph 1(c) and complaints based on an
alleged impediment to attainment of an objective.
I. EXPERIENCE WITH DISPUTES UNDER THE TRIPS AGREEMENT, INCLUDING
ANY REFERENCES TO NON-VIOLATION ISSUES
A. S
UMMARY OF DISPUTES
6. There have been 15 disputes under the TRIPS Agreement relating to 11 separate matters to
date.  Two of these eleven matters have been the subject of Panel Reports: one was the complaint by
the United States against India, which was also the subject of an Appellate Body Report3, and by the
European Communities against India, which was the subject of a separate Panel Report4;  the other
was the complaint by the United States against Indonesia concerning its automobile programme.5
Four other matters have been the subject of mutually agreed solutions6 and the remaining five are still
at the stage of bilateral consultations.7
7. Of course, none of these disputes were ra ised under subparagraphs 1(b) or 1(c) of
Article XXIII of GATT 1994 given that such complain ts were not available due to the provisions of
Article 64.2 of the TRIPS Agreement.
                                                     
2 Neither complaints raised under subparagraph 1(b) no r 1(c) concern violations.  As a result, they are
sometimes referred to collectively as "non-violation complaints", as in the title of this note.
3 India – Patent Protection for Pharmaceutical and Agricultural Chemical Products , complaint by the
United States, adopted on 16 January 1998, WT/DS50/AB/R (herein India – Patents I).
4 India – Patent Protection for Pharmaceutical and Agricultural Chemical Products , complaint by the
European Communities, adopted on 22 September 1998, WT /DS79/R (herein India – Patents II ).
5 Indonesia – Certain Measures Affecting the Automobile Industry , adopted on 23 July 1998, complaint
by the United States, WT/DS55/R.
6 Japan – Measures Concerning Sound Recordings , mutually agreed solutions with the United States,
WT/DS28/4, and with the European Communities, WT/DS42/4;  Pakistan – Patent Protection for
Pharmaceutical and Agricultural Chemical Products , mutually agreed solution with the United States,
WT/DS36/4;  Portugal – Patent Protection under the Industrial Property Act , mutually agreed solution with the
United States, WT/DS37/2/Corr.1;  and Sweden – Measures Affecting the Enforcement of Intellectual Property
Rights , mutually agreed solution with the United States, WT/DS86/2.
7 Denmark – Measures Affecting the Enforcement of Intellectual Property Rights , request for
consultations by the United States, WT/DS83/1;  Ireland and the European Communities – Measures Affecting
the Grant of Copyright and Neighbouring Rights , requests for consultations by the United States, WT/DS82/1
and WT/DS115/1;  Canada – Patent Protection for Pharmaceutical Products , request for consultations by the
European Communities, WT/DS114/1;  European Communities and Greece - Enforcement of Intellectual
Property Rights for Motion Pictures and Television Programs , requests for consultations by the United States,
WT/DS124/1 and WT/DS125/1;  and European Communities – Patent Protection for Pharmaceutical and
Agricultural Chemical Products , request for consultations by Canada, WT/DS153/1.IP/C/W/124
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B. I NDIA - PATENTS I
8. Non-violation disputes were discussed in the December 1997 Appellate Body Report on India
– Patents I .  In that case, the United States complained alleging the absence in India of either patent
protection for pharmaceutical and agricultural chemical products under Article 27 of the TRIPS
Agreement or of a means for the filing of patent applications for pharmaceutical and agriculturalchemical products pursuant to Article 70.8 and of legal authority for the granting of exclusive
marketing rights for such products pursuant to Article 70.9.  In its Report, the Panel found that India
had not complied with its obligations under Article 70.8(a) and, in the alternative, paragraphs 1 and 2
of Article 63, and Article 70.9 of the TRIPS Agreement.  The Appellate Body upheld the main
findings concerning India's obligations under Article 70.8(a) and 70.9 but reversed the Panel's finding
concerning Article 63.
8
9. However, the Appellate Body took issue with the following finding of the Panel which
resulted from a discussion in its report on the "Interpretation of the TRIPS Agreement"9:
"In conclusion, we find that, when interpreting the text of the TRIPS Agreement, the
legitimate expectations of WTO Members concerning the TRIPS Agreement must be
taken into account, as well as standards of interpretation developed in past panel
reports in the GATT framework, in particular those laying down the principle of theprotection of conditions of competition flowing from multilateral trade agreements".
10
10. In taking issue with this finding of the Panel, the Appellate Body discussed the issue of
non-violation complaints.  The relevant passage from the Appellate Body Report is as follows:
"36. Although the Panel states that it is merely applying a "well-established GATT
principle", the Panel's reasoning does not accurately reflect GATT/WTO practice.  Indeveloping its interpretative principle, the Panel merges, and thereby confuses, two
different concepts from previous GATT practice.  One is the concept of protecting the
expectations of contracting parties as to the competitive relationship between their
products and the products of other contracting parties.  This is a concept that was
developed in the context of violation  complaints involving Articles III and XI,
brought under Article XXIII:1(a), of the GATT 1947.  The other is the concept of the
protection of the reasonable expectations of contracting parties relating to market
access concessions.  This is a concept that was developed in the context of
non-violation  complaints brought under Article XXIII:1(b) of the GATT.
"37. Article 64.1 of the TRIPS Agreement  incorporates by reference Article XXIII
of the GATT 1994 as the general dispute settlement provision governing the TRIPS
Agreement .  Thus, we have no quarrel in principle with the notion that past GATT
practice with respect to Article XXIII is pertinent to interpretation of the TRIPS
Agreement .  However, such interpretation must show proper appreciation of the
different bases for action under Article XXIII.
"38. Article XXIII:1 of GATT 1994 sets out the various causes of action on which a
Member may base a complaint.  A Member may have recourse to dispute settlementunder Article XXIII when it considers that:
                                                     
8 Appellate Body Report, India – Patents I ; WT/DS50/AB/R, para. 97.
9 This discussion in the Panel Report is reproduced in full in Annex 2 of this note.
10 Panel Report, India – Patents I ; WT/DS50/R, para. 7.22.IP/C/W/124
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... any benefit accruing to it directly or indirectly under this Agreement
is being nullified or impaired or that the attainment of any objective of
the Agreement is being impeded as the result of
(a) the failure of another contracting party to carry out its
obligations under this Agreement, or
(b) the application by another contracting party of any measure,
whether or not it conflicts with the provisions of this
Agreement, or
(c) the existence of any other situation.
"39. Article XXIII:1(a) involves so-calle d "violation" complaints.  These are
disputes that arise from an alleged failure by a Member to carry out its obligations.During nearly fifty years of experience, Article XXIII:1(a) has formed the basis of
almost all disputes under the GATT 1947 and the WTO Agreement .  In contrast,
Article XXIII:1(b) involves so-called "non-vi olation" complaints.  These are disputes
that do not require an allegation of a violati on of an obligation.  The basis of a cause of
action under Article XXIII:1(b) is not necessarily a violation of the rules, but rather the
nullification or impairment of a benef it accruing to a Member under a covered
agreement.  In the history of the GATT/ WTO, there have been only a handful of
"non-violation" cases arising under Article XXIII:1(b).  Article XXIII:1(c), covering
what are commonly called "situation" complaints, has never been the foundation for a
recommendation or ruling of the GATT CONTRACTING PARTIES or the Dispute
Settlement Body, although it has formed the basis for parties’ arguments before panels
in a small number of cases.
"40. In the context of violation complaints made under Article XXIII:1(a), it is true
that panels examining claims under Articles III and XI of the GATT have frequently
stated that the purpose of these articles is to protect the expectations of Membersconcerning the competitive relationship between imported and domestic products, as
opposed to expectations concerning trade volumes.  However, this statement is often
made after a panel has found a violation of, for example, Article III or Article XI that
establishes a prima facie  case of nullification or impairment.  At that point in its
reasoning, the panel is examining whether the defending party has been able to rebut
the charge of nullification or impairment.  It is in this context that panels have referred
to the expectations of Members concerning the conditions of competition.
"41. The doctrine of protecting the "reasona ble expectations" of contracting parties
developed in the context of "non-vi olation" complaints brought under
Article XXIII:1(b) of the GATT 1947.  Some of the rules and procedures concerning
"non-violation" cases have been codified in  Article 26.1 of the DSU.  "Non-violation"
complaints are rooted in the GATT's origin s as an agreement intended to protect the
reciprocal tariff concessions negotiated among the contracting parties under Article II.
In the absence of substantive legal rules in  many areas relating to international trade,
the "non-violation" provision of Article XX III:1(b) was aimed at preventing contracting
parties from using non-tariff barriers or other policy measures to negate the benefits of
negotiated tariff concessions.  Under Article XXIII:1(b) of the GATT 1994, a Membercan 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 ultimate goal is notIP/C/W/124
Page 5
the withdrawal of the measure concerned, but rather achieving a mutually satisfactory
adjustment, usually by means of compensation.
"42. Article 64.2 of the TRIPS Agreement  states:
'Subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall not
apply to the settlement of disputes under this Agreement for a periodof five years from the date of entry into force of the WTO Agreement.'
The meaning of this provision is clear:  the only cause of action permitted under the
TRIPS Agreement  during the first five years after the entry into force of the WTO
Agreement  is a "violation" complaint under Article XXIII:1(a) of the GATT 1994.  This
case involves allegations of violation of obligations under the TRIPS Agreement .
However, the Panel's invocation of the "legitimate expectations" of Members relating to
conditions of competition melds the lega lly-distinct bases for "violation" and
"non-violation" complaints under Article XXIII of the GATT 1994 into one uniform
cause of action.  This is not consistent with either Article XXIII of the GATT 1994 or
Article 64 of the TRIPS Agreement .  Whether or not "non-violation" complaints should
be available for disputes under the TRIPS Agreement  is a matter that remains to be
determined by the Council for Trade-Related Aspects of Intellectual Property (the"Council for TRIPS") pursuant to Article 64.3 of the TRIPS Agreement .  It is not a
matter to be resolved through interpretati on by panels or by the Appellate Body."
11
II. NEGOTIATING HISTORY OF ARTICLE 64.2 AND 64.3 OF THE TRIPS
AGREEMENT
11. A key factor in the negotiating history of  the TRIPS provision on dispute settlement,
Article 64, is that the TRIPS negotiations took place, inter alia , on the basis of the following
provision contained in the part relating to the TRIPS negotiations of the Decision of the Uruguay
Round Trade Negotiations Committee of April 1989 (which concluded the Mid-Term Review of the
Uruguay Round):
"Ministers agree that the outcome of the negotiations is not prejudged and that these
negotiations are without prejudice to the views of participants concerning the
institutional aspects of the international implementation of the results of the
negotiations in this area, which is to be decided pursuant to the final paragraph of the
Punta del Este Declaration."12
This paragraph of the Punta del Este Declaration read as follows:
"When the results of the Multilateral Trade Negotiations in all areas have been
established, Ministers meeting also on the occasion of a Special Session of
CONTRACTING PARTIES shall decide upon the international implementation of
the respective results."13
12. Given that the issue of the institutional framew ork for the implementation of the results of the
TRIPS negotiations, or the "GATTability" issue as it was often referred to, was left open until the endof the negotiations and that the arrangements for dispute settlement were intimately linked with this
question, the negotiations on dispute settlement were left until late in the negotiating process.  The
draft text of the TRIPS Agreement that was forwarded by the Chairman of the Negotiating Group to
                                                     
11 Footnotes have been deleted from the quoted passage of the Appellate Body's Report.
12 MTN.TNC/9, p.9.
13 BISD 33S/28.IP/C/W/124
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the Brussels Ministerial Conference at the end of 1990, which already reflected the progress made in
negotiations on most substantive aspects, did not attempt, for this reason, to put forward any common
text on dispute settlement.14  Rather it contained, in an annex, three texts, in order to indicate the range
of options that had been presented in the Negotiating Group and to provide a basis for possible
elaboration in the light of the decision to be taken on institutional arrangements.  In brief, one of theseproposals advocated the application tel quel  of GATT dispute settlement procedures as they would
emerge from the Uruguay Round.  Another envisaged a separate and simplified dispute settlement
mechanism, which would not have used the language of Article XXIII of the GATT to describe the
possible causes of action but rather have provided for procedures "when any dispute arises concerning
the interpretation or implementation of this Agreement …".  The third approach was intended as a
compromise proposal;  this advocated application of the GATT dispute settlement rules as they would
emerge from the Uruguay Round with certain specific provisions relating to TRIPS disputes;  theseconcerned a conciliation, mediation and good offices stage, a roster of experts in the field of
intellectual property matters and special procedures relating to possible authorization of suspension of
concessions or other obligations.
13. When the TRIPS and other Uruguay Round negotiations resumed in earnest in the autumn
of 1991, the question of how the issue of the inst itutional framework would be settled was still
unclear.  Accordingly, the issue of dispute settlement was largely left aside.  It was not until
December of that year that it became apparent that the likely way in which this question would be
settled as far as the Uruguay Round as a whole was concerned would be through the creation of a new
organization, then referred to as a Multilateral Trade Organization (MTO), and through an integrated
dispute settlement mechanism that would apply to all disputes under the MTO.  The discussions thatthen took place focused essentially on the compromise proposal and, in particular, on the extent to
which it would be necessary to retain the various special provisions relating to TRIPS disputes given
the general provisions of the Dispute Settlement Understanding that were emerging.  On the basis of
this discussion, in which it was found that the is sues underlying those proposed special provisions
were likely to be taken care of in the general dispute settlement rules then emerging, the text that wasincluded in the Draft Final Act, tabled on 20 December 1991, was in substance the same as that
presently found in paragraph 1 of Article 64 of the TRIPS Agreement.
15  No other paragraphs were
included in the provision on dispute settlement in the draft TRIPS text of 20 December 1991.
However, given that the work on the development of an integrated dispute settlement understanding
was still incomplete, a footnote was included stating that:  "This provision may need to be revised in
the light of the outcome of work on the establishment of an Integrated Dispute Settlement
Understanding under the Agreement Establishing the Multilateral Trade Organization".
14. While the issue of non-violation had not figured in the negotiations that led to this text, the
issue had arisen significantly in the negotiations in autumn 1991 of the text of Article 8 of the TRIPS
Agreement.  The December 1990 Brussels text of Article 8 was, in substance, the same as that
presently contained in Article 8 with the exception that, in paragraph 1, the qualifying phrase
"provided that such measures are consistent with the provisions of this Agreement" read "provided
that PARTIES do not derogate from the obligations arising under this Agreement" and that a similar
difference was also contained in the draft of paragraph 2.  The issue that arose and which led to quite
lengthy negotiations was that some delegations expressed concern about the possible use of the
provisions of Article 8 to justify measures which, while not inconsistent with obligations under the
Agreement, might have the effect of impairing benefits that other Members could legitimately expectunder the Agreement;  in other words, that the provision could be used as a defence in a non-violation
case on the grounds that the taking of the measures envisaged by Article 8 could only have been
reasonably expected at the time that the TRIPS negotiations were concluded.  To forestall this effect,
the suggestion was made that the phrase "or impair the benefits" might be inserted after the word
                                                     
14 MTN.TNC/W/35/Rev.1.
15 MTN.TNC/W/FA.IP/C/W/124
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"obligations".  Subsequently, the negotiations focused on the possible inclusion of the phrase "or
otherwise undermine" before the words "the obligations".  These modifications were opposed and, in
the end, the text that was forwarded by the Chair for inclusion in the Draft Final Act was that
presently found in Article 8, which requires that the measures in question conform with the
"provisions" of the Agreement rather than forbid ding them from derogating from "obligations" under
the Agreement.
15. Little progress on matters of substance was made in the Uruguay Round negotiations until the
end of 1993.  However, in the intervening period, useful work of a legal drafting nature took place.  In
this context, the issue of non-violation complaints arose in regard to the question of whether the
footnote to Article 64 of the Draft Final Act text (see paragraph 13 above) should be dropped or
retained.  Some delegations were opposed to its deletion because they wished for an opportunity to
revert to the issue of non-violation in the TRIPS context depending on how the ongoing work on theconclusion of the provisions of the Dispute Sett lement Understanding, including those relating to
non-violation, evolved.
16. The final substantive phase of the Uruguay Round negotiations took place in autumn 1993.
At that time, a small number of suggestions for modifications to the 1991 TRIPS text were made.  In
the end, most of these suggestions were not pursued and the final text that was "gavelled" on15 December 1993 included only two changes of substance:  one was the addition of paragraphs 2
and 3 of Article 64;  and the other was the introduction into Article 31(c) of the phrase relating to
semi-conductor technology.
III. EXPERIENCE WITH NON-VIOLATION COMPLAINTS UNDER GATT/WTO
17. The dispute settlement provision of the TRIPS Agreement found in Article 64 is based on the
application of the provisions of Articles XXII and XXIII of the GATT 1994, as elaborated and applied
by the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU").
The Appellate Body has noted that past GATT practice with respect to Article XXIII is therefore
pertinent to interpretation of the TRIPS Agreement
16 and also that adopted Panel Reports are an
important part of the GATT acquis .17
18. Most experience under GATT 1947 and under the WTO with non-violation complaints relates
to complaints under Article XXIII:1(b) alleging nullification or impairment of a benefit accruing
under the agreement in question.  This experience is reviewed in section A.  Section B considers
experience with so-called "situation" complaints under Article XXIII:1(c) and section C considers
experience with regard to complaints alleging that the attainment of an objective of the Agreement in
question has been impeded.  However, first, the evolution since 1947 of the legal texts applicable to
non-violation cases is reviewed.
Evolution of Applicable Legal Texts
19. The provisions of GATT 1947, also found in GATT 1994, which constitute the bases for
non-violation complaints, are discussed in paragraphs 3 to 5 of this note, and are reproduced in
Annex 1.
                                                     
16 India – Patents I,  WT/DS50/AB/R, para. 37, quoted in paragraph 10 of this note.
17 Appellate Body Report, Japan – Taxes on Alcoholic Beverages , adopted 1 November 1996,
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, p.14, c ited with approval in the Appellate Body Report, India
- Patents I, WT/DS50/AB/R, para. 35.IP/C/W/124
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20. In the "Agreed Description of the Customary Practice of the GATT in the Field of Dispute
Settlement (Article XXIII:2)", which was annexed to the Understanding Regarding Notification,
Consultation, Dispute Settlement and Surveillance adopted on 28 November 1979, at the end of the
Tokyo Round, it is stated, in respect of recourse to Article XXIII:1(b) or (c), that:
"If a contracting party bringing an Article XXIII case claims that measures that do not
conflict with the provisions of the General Agreement have nullified or impaired
benefits accruing to it under the General Agreement, it would be called upon to
provide a detailed justification."18
21. The so-called codes that formed part of the results of the Tokyo Round and which contained
dispute settlement mechanisms based on, although separate from, that in the GATT 1947 also
provided for non-violation cases.  The wording was somewhat more condensed in relation to the
different causes of action than that found in GATT 1947, although the basic concept of non-violationnullification or impairment was still present.
19
22. Under the WTO, non-violation nullification and impairment remains a cause of action under
GATT 1994 and the other agreements on trade in goods to be found in Annex 1A to the WTO
Agreement.20
23. Under the GATS, the following special provisi on in relation to non-violation nullification and
impairment is found in Article XXIII:3:
"3. If any Member considers that any benefit it could reasonably have expected
to accrue to it under a specific commitment of another Member under Part III of this
Agreement is being nullified or impaired as a result of the application of any measure
which does not conflict with the provisions of this Agreement, it may have recourseto the DSU.  If the measure is determined by the DSB to have nullified or impaired
such a benefit, the Member affected shal l be entitled to a mutually satisfactory
adjustment on the basis of paragraph 2 of Article XXI, which may include the
modification or withdrawal of the measure.  In the event an agreement cannot be
reached between the Members concerned, Article 22 of the DSU shall apply."
24. It should also be noted that the GATS does not provide for situation complaints of the sort
found in Article XXIII:1(c) of GATT 1994 nor does it provide for any complaints based on an
impediment to the attainment of an objective of that Agreement.
                                                     
18 BISD 26S/216, para. 5.
19 Agreement on Technical Barriers to Trade, Article 14;  Agreement on Government Procurement,
Article VII;  Agreement on Interpretation and A pplication of Articles VI, XVI and XXIII of the GATT,
Articles 12 and 13;  Agreement on Implementation of Article VII of the GATT, Articles 19 and 20;  Agreementon the Implementation of Article VI of the GATT, Article 15;  but contrast the Agreement on Import LicensingProcedures, Article 4, which referred to Articles XXII and XXIII of the GATT.
20 Nevertheless, the position may be different under some of those agreements.  The Agreement on
Subsidies and Countervailing Measures, Article 5, contains a specific provision on nullification or impairment
of benefits accruing to other Members under GATT 1994.  The Agreement on Agriculture, Article 10, containscertain express non-circumvention obligations, so that any nullification or impairment of the relevant benefitsmight actually constitute a violation, and Article 13 temporarily exempts certain domestic support measuresfrom actions based on non-violation nullification or impairment of the benefits of tariff concessions.  TheAgreement on Textiles and Clothing, Article 8.10 only refers to invocation of paragraph 2 of Article XXIII of
GATT 1994 and the relevant provisions of the DSU in cases of non-conformance with recommendations of the
Textiles Monitoring Body.IP/C/W/124
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25. In regard to the TRIPS Agreement, the provisions of paragraphs 2 and 3 of Article 64,
concerning non-violation complaints are reproduced in Annex 1.
26. The DSU, which contains dispute settlement procedures applicable to all WTO agreements,
provides, in its Article 26, for special procedures in relation to non-violation complaints of the type
provided for under Article XXIII:1(b) of GATT 1994 and for complaints of the type provided forunder Article XXIII:1(c) of GATT 1994.  The text of Article 26 of the DSU is reproduced at Annex 3.
A.C OMPLAINTS OF THE TYPE PROVIDED FOR UNDER ARTICLE XXIII:1(b) OF GATT 1947 AND
GATT 1994 C ONCERNING NULLIFICATION OR IMPAIRMENT OF A BENEFIT
1. Frequency of complaints
27. Complaints under subparagraph 1(b) of Article XXIII have been rare.  Only eight Working
Party and Panel Reports considered claims of this type substantively under GATT 1947.21  The list in
Annex 4 sets out details of these reports and other relevant reports.  An examination of them indicatesthat:
- in three cases, the non-violation complaint was successful and the Working Party or
Panel Reports were adopted.  There was a Follow-up Report on one of these
22;
- two were cases where the Panels found the non-violation complaints justified but the
Panel Reports were not adopted23;
- in three cases, the non-violation claims failed for lack of a detailed justification.24
                                                     
21 The 1998 Panel Report on Japan – Film  considered that "the non-violation remedy should be
approached with caution and should remain an ex ceptional remedy", WT/DS44/R, para. 10.37 (herein Japan –
Film ).
22 Working Party Report, The Australian Subsidy on Ammonium Sulphate,  adopted on 3 April 1950,
BISD II/188;  Panel Report , Treatment of Germany of Imports of Sardines , adopted on 31 October 1952,
BISD 1S/53 (herein  Germany – Sardines );  and Panel Report,  European Communities – Payments and Subsidies
Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins , adopted 25 January 1990,
BISD 37S/86 (herein EEC – Oilseeds ) and Report of the Members of the Original Oilseeds Panel, Follow-up on
the Panel Report 'EEC – Payments and Subsidies Paid to Processors and Producers of Oilseeds and RelatedAnimal Feed Proteins' , DS28/R, dated 31 March 1992, BISD 39S/91.
23 1985 Panel Report, European Community – Tariff Treatment on Imports of Citrus Products from
Certain Countries in the Mediterranean Region, L/5776, not adopted (herein EEC – Citrus Products ) and 1985
Panel Report, European Economic Community – Production Aids Granted on Canned Peaches, Canned Pears,
Canned Fruit Cocktail and Dried Grapes , L/5778, not adopted (herein  EEC – Canned Fruit ).
24 Panel Report, Uruguayan Recourse to Article XXIII , adopted on 16 November 1962, BISD 11S/95
(herein Uruguayan Recourse );  Panel Report, Japan – Trade in Semi-conductors , adopted on 24 May 1960,
BISD 35S/116 (herein  Japan – Semi-conductors );  and Panel Report, United States – Restrictions on the
Importation of Sugar and Sugar-containing Products Applied under the 1955 Waiver and under the headnote tothe Schedule of Tariff Concessions , adopted on 7 November 1990, BISD 37S/228 (herein United States – 1955
Waiver).IP/C/W/124
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28. Non-violation claims were raised in a small number of other cases but not pursued.25  Issues
related to "reasonable expectations" from tariff negotiations and the effect of subsidies on the value of
concessions were also raised in a 1955 Working Party Report26 and the 1961 Panel Report on
Subsidies.27
29. Since the establishment of the WTO, there has been only one Panel Report which
substantively considered a non-violation claim.28  Non-violation claims have also been raised,
together with violation claims, in various other requests for consultations or the establishment of a
panel.29  In addition, in some other cases claims of nullification or impairment of benefits have been
made without specifying whether this is  on a violation or non-violation basis.
2. Main Features of Experience
30. The origins of the non-violation doctrine lie in the recognition that a wide range of
governmental measures can affect the value of commitments entered into in international trade
agreements and that it would be very difficult and perhaps undesirable to seek to regulate all such
measures.  A Secretariat note prepared for the Uruguay Round Negotiating Group on Dispute
Settlement contained a section on the drafting history of Article XXIII:1(b), which included the
following passage indicating that the non-violation doctrine was one of a number of approaches
evolved to address this issue:
"The concept of nullification and impairment originated in bilateral trade agreements
negotiated in the 1920s and 1930s.  In order to protect the agreed tariff reductions as
well as the reciprocal 'balance of concessions' from being undermined by non-tariff
trade barriers or by other governmental measures (e.g. outside the trade sphere), those
agreements made use of three complementary legal techniques:  (1) substantive legal
                                                     
25 These include a 1948 complaint concerning Cuban Import Restrictions on Textiles,  settled
bilaterally, GATT/CP.2/43; Panel Report, German Import Duties on Starch and Potato Flour,  noted on
16 February 1955, BISD 3S/80; Panel Report, French Import Restrictions,  adopted on 14 November 1962,
BISD 11S/95 and a 1986 Panel Report, United States – Trade Measures Affecting Nicaragua , L/6053, not
adopted;  and Panel Report, European Communities – Refunds on Exports of Sugar  adopted on
6 November 1979, BISD 26S/290; and a 1974 complaint concerning Article XXIV:6 Renegotiations between
Canada and the EEC,  L/4107 and a 1994 complaint concerning EEC – Operation of Beef and Veal Regime,
C/M/183.
26 Adopted on 3 March 1955, BISD 3S/222.
27 Panel Report, Operation of the Provisions of Article XVI  adopted on 21 November 1961,
BISD 10S/201.
28 This was the Panel Report on Japan – Measures Affecting Consumer Photographic Film and Paper,
adopted on 22 April 1998, WT/DS44/R, (herein Japan – Film ).
29 These include:  Japan - Measures Affecting Distribution Services,  request for consultations by the
United States, WT/DS45/1;  Brazil - Certain Automotive Investment Measures , requests for consultations by
Japan and the United States, WT/DS51/1 and WT/DS52/1;  United States – The Cuban Liberty and Democratic
Solidarity Act, request for establishment of a Panel by the European Communities, WT/DS38/2;  United States -
Import Prohibition of Certain Shrimp and Shrimp Products,  request for consultations by the Philippines,
WT/DS61/1;  European Communities – Measures Affecting Butter Products , request for consultations and
establishment of a panel by New Zealand, WT/DS72/1-2;  Brazil – Certain Measures Affecting Trade and
Investment in the Automotive Sector , requests for consultations by the United States and the European
Communities, WT/DS65/1 and WT/DS81/1;  India – Quantitative Restrictions on Imports of Agricultural,
Textile and Industrial Products , request for consultations by New Zealand, WT/DS93/1;  European
Communities – Measures Affecting Asbe stos and Products Containing Asbestos , request for establishment of a
panel by Canada, WT/DS135/3;  European Communities – Anti-dumping Investigations regarding Unbleached
Cotton Fabrics from India , request for consultations by India, WT/DS140/1;  and United States – Certain
Measures Affecting the Import of Cattle, Swine and Grain from Canada , request for consultations by Canada,
WT/DS144/1.IP/C/W/124
Page 11
rules prohibiting or limiting the use of trade restricting or distorting trade policy
measures;  (2) procedural rules providing for legal remedies not only in case of treaty
violations but also in situations where the commercial opportunities protected by
those trade agreements were being nullified by other  (e.g. purely domestic)
measures;  and (3) termination clauses allowing a disappointed party to terminate thetrade policy obligations altogether on short notice (mostly three to six months).(…)"
30
31. A GATT Panel described the purpose of Article XXIII:1(b) in the following terms:
"The panel noted that these provisions, as conceived by the drafters and applied by
the contracting parties, serve mainly to protect the value of tariff concessions.  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 alsoby 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."
31
32. A review of the experience with nullification or impairment non-violation cases under
Article XXIII:1(b) of GATT 1947 and GATT 1994 indicates that the following are the essential
requirements that have had to be met by a complaining party in order to mount a successful case:
- that a measure attributable to the respondent party government exists;
- that the measure could not reasonably have been expected by the complaining party at
the time that it negotiated a commitm ent with the respondent party;  and
- that the measure adversely upsets the competitive relationship between products
established by the commitment in question.
33. In addition to the reference in the second indent above, reasonable expectations (sometimes
referred to as legitimate expectations) are also referred to in GATT practice in terms of the benefitswhich a party reasonably expected to accrue to it.  These two types of reference to this concept are
two sides of the same coin;  that is to say, the test of whether benefits could reasonably be expected to
flow from a commitment have been nullified or impaired by a measure is that the party which
negotiated the commitment should have had, at the time it negotiated the commitment, no reasonable
expectation that the measure in question would be taken.
32
34. The paragraphs that follow set out in greater detail the experience with regard to these points
and also with regard to the procedural requir ements that have been considered necessary in
connection with nullification or impairment non-violation cases.  They deal, firstly, with experience
with the nature of the "benefit".  Secondly, they deal with the "measures" that can give rise to this
type of case, in particular, their nature, reasonable expectations concerning them, and their timing
vis-à-vis  negotiations of commitments.  Thirdly, it is necessary to consider experience with the causal
link between the measure in issue and the alleged nullification or impairment of the benefit, and the
                                                     
30 MTN.GNG/NG13/W/31, dated 14 July 1989,  para. 5.
31 EEC – Oilseeds,  BISD 37S/86, 128-129, passage quoted with approval in the Panel Report on
Japan – Film , WT/DS44/R, para. 10.35.
32 See paragraph 50 of this note.IP/C/W/124
Page 12
issue of which party bears the burden of demonstrating nullification or impairment in this type of
case.  Lastly, experience with remedies in successful cases will be considered.
3. Nature of the "Benefit"
35. Inherent in the concept of nullification or impa irment non-violation cases is the notion that the
benefits accruing as a result of a concession or obligation under an agreement are in some way largerthan the literal wording of the commitment itself.  In other words, the benefit that a Member can
legitimately expect to derive from the commitment goes beyond mere formal compliance with the
provision in question.
33 In practice under the GATT, for this to be the case, it has been considered that
a commitment must have established conditions of competition – sometimes referred to as a
competitive relationship or the creation of competitive opportunities.  These have usually concerned
the competitive relationship in a country between imported and domestically-produced goods
although the competitive relationship in a country between imports from other countries has also beenat issue.
34
36. The central importance of the concept of competitive relations was made clear in the first
successful non-violation complaint, the 1950 case concerning The Australian Subsidy on Ammonium
Sulphate .  The Working Party's consideration of the non-violation part of the claim begins as follows:
"The working party next considered whether the injury which the Government of
Chile said it had suffered represented a nullification or impairment of a benefit
accruing to Chile directly or indirectly under the General Agreement and was
therefore subject to the provisions of Article XXIII.  It was agreed that such
impairment would exist if the action of the Australian Government which resulted in
upsetting the competitive relationship between sodium nitrate and ammoniumsulphate could not reasonably have been anticipated by the Chilean Government,
taking into consideration all pertinent circumstances and the provisions of the General
Agreement, at the time it negotiated for the duty-free binding on sodium nitrate."
35
37. The 1952 Panel Report on the second successful non-violation case, Germany – Sardines ,
began its consideration of the non-violation part of the complaint in the same way.36 The 1985 Panel
Report on EEC – Canned Fruit , which was not adopted, reviewed the earlier reports dealing with
non-violation complaints and found:
"… that in past GATT practice it had been established that the upsetting of the
competitive relationship of an imported product as a result of a subsequent domestic
measure, which could not have reasonably been anticipated by the party bringing the
                                                     
33 This key aspect of the applicability of non-violation complaints was raised in two notes on the
subject prepared by the Secretariat in the course of the Uruguay Round negotiations.  The 1989 Secretariat note
cited above at note 30 raised for consideration the question of whether:  "… the 'benefits' deriving from the
GATT rules on non-tariff trade barriers were larger than the GATT rules themselves (e.g. do they protect alsofreedom from market-distorting measures other than those explicitly prohibited in these GATT rules)?"  ASecretariat note on the issue of the applicability of non-violation cases in the area of government procurement,prepared for the Informal Working Group on Government Procurement during the negotiation of the present
plurilateral Agreement, raised the following question:  "… what are the legitimate expectations deriving from
the commitments of other countries under the Agreement?  Are they merely expectations that covered entitieswill conduct their procurement according to GPA proced ures, or do they imply something further – a guarantee
of effective access to a market?".
34 EEC – Citrus Products , L/5776, not adopted; and Japan – Semiconductors , BISD 35S/116,
concerned the conditions of competition between imports from other countries.
35 BISD II/188, 192-3.
36 BISD 1S/53, 58.IP/C/W/124
Page 13
complaint at the time of negotiation of a tariff concession on the imported product,
would constitute nullification or impairment of the tariff concessions."37
38. More recently, the 1990 Panel Report on EEC – Oilseeds  stated, as quoted earlier at
paragraph  31 of this note, that:  "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 befrustrated not only by measures proscribed by the General Agreement but also by measures consistent
with that Agreement."
38  This Panel went on to say that "the main value of a tariff concession is that it
provides an assurance of better access through improved price competition.  Contracting parties
negotiate tariff concessions primarily to obtain that advantage".39  These statements were quoted with
approval in the 1998 Panel Report on Japan – Film .40
39. The Japan – Film  Panel also stated that, "… to show nullification or impairment as a result of
the application of a measure, it must be demonstrated that the competitive position of the importedproducts subject to and benefitting from a relevant market access (tariff) concession is being upset by
("nullified or impaired … as the result of") the application of a measure not reasonably anticipated
…".
41
40. In practice, the "benefit" accruing under an ag reement which complainants in non-violation
cases have alleged was being nullified or impaired, has usually been the benefit accruing from tariffconcessions.  This was true in each of the cases referred to above.  This has been explained in
academic literature by reference to the fact that a tariff concession is necessary for a certain
expectation of market access, in terms of competitive opportunities, to exist.  One author has written:
"In the absence of a tariff concession, a WTO Member may impose tariffs of any level and the
legitimate expectation of market access therefore arises under the GATT only from a tariffconcession"
42;  and another:  "If there is no concession on the product, then the other GATT rules do
not really promise any particular level of commercial opportunity;  they merely promise the avoidance
of trade barrier forms specified in the rule".43
41. Three Panel Reports have considered non-violation claims based on general obligations rather
than specific tariff concessions.  The first of these, which  was not adopted, was the 1985 PanelReport on EEC – Citrus Products.  In that case, it was claimed that preferential tariff treatment was
inconsistent with most-favoured-nation treatment or, in the alternative, that the treatment nullified or
impaired benefits without violating the Agreement.  The Panel found the non-violation claim justified
and specifically found that the "benefit" referred to in Article XXIII:1 was not limited to tariff
concessions.  The relevant passage from the Panel Report is as follows:
"… the Panel considered that although complaints brought previously under
Article XXIII:1(b) had related to benefits arising from Article II, it believed that thisdid not signify that Article XXIII:1(b) was limited only to those benefits.  The
drafting history of Article XXIII confirmed that this Article, including paragraph 1(b)
thereof, protected any benefit under the General Agreement … .  This would include
                                                     
37 L/5778, not adopted, paras. 55 and 80.
38 BISD 37S/86, 128-129, para. 144.
39 loc. cit.
40 WT/DS44/R, para. 10.35.
41 ibid., para. 10.82.
42 Frieder Roessler: "The Concept of Nullification and Impairment in the Legal System of the World
Trade Organization" in E.-U. Petersmann (ed.) International Trade Law and the GATT/WTO Dispute Settlement
System , Kluwer Law International, 1997, p.125-142.
43 Robert E. Hudec: "Regulation of Domestic Subsidies Under the MTN Subsidies Code" in Wallace,
Loftus and Krikorian (eds), Interface Three:  The Legal Treatment of Domestic Subsidies , International Law
Institute, 1984, p.7.IP/C/W/124
Page 14
then the benefits accruing to the United States under Article I.1 which applied to
bound and unbound tariffs alike … .
"The Panel noted that the basic purpose of Article XXIII:1(b) was to provide for
offsetting or compensatory adjustment in situations in which the balance of rights or
obligations of the contracting parties had been disturbed … .  In this particularsituation the balance of the obligations of Articles I and XXIV of the General
Agreement had been upset to the disadvantage of the contracting parties not party to
these [preferential] agreements and that the United States was therefore entitled to
offsetting or compensatory adjustment to th e extent that the grant of the preferences
had caused substantial adverse affects to its actual trade or its trade opportunities."
44
42. The 1988 Panel Report on Japan – Semi-conductors  concerned measures relating to exports
of semi-conductors to third country markets which were found to be inconsistent with Article XI:1 ofGATT 1947 on the elimination of quantitative restrictions.  The Panel, after noting the requirement on
a party claiming non-violation nullification and impairment to provide a detailed justification, stated
that it "considered that the evidence submitted by the EEC relating to access to the Japanese market
did not permit it to identify any measure by the Japanese Government that put EEC exporters of
semi-conductors at a competitive disadvantage vis-à-vis  those of the United States and that might
therefore nullify or impair benefits accruing to the EEC under the General Agreement and impede the
attainment of objectives of the General Agreement within the meaning of Article XXIII".
45
43. The 1990 Panel Report on United States – 1955 Waiver  considered a non-violation claim in
relation to a non-tariff measure and a general obligation, namely import restrictions in breach of
Article XI of GATT 1947.  The Panel noted as follows:
"… The EEC has not claimed that benefits accruing to it under a tariff concession
made by the United States in accordance with Article II have been nullified or
impaired as a result of measures taken under the Waiver.  The main justification for
its claim of nullification or impairment that the EEC presented to the Panel was that
the restrictions, in spite of the Waiver, ha ve remained inconsistent with the General
Agreement.  The Panel recognized that Article XXIII:1(b) does not exclude claims of
nullification or impairment based on provisions of the General Agreement other than
Article II."46
44. Whilst agreements relating to trade in goods that form part of Annex 1A to the WTO
Agreement permit complaints on the ground that a measure consistent with an agreement is nullifying
or impairing any benefit accruing under them, the GATS limits the possibility to make such
complaints in the area of services to situations in which the benefit accruing to under a specificcommitment of another Member under Part III of the GATS is being nullified or impaired.  Part III of
the GATS contains the specific commitments that Members have negotiated and specified in their
national Schedules attached to the GATS.  The other parts of the GATS contain general rules of
application as well as certain institutional and procedural provisions.
45. Most of the negotiation of this provision of the GATS took place in informal session and is
therefore not a matter of formal record.  The formal documents of the Uruguay Round Group of
Negotiations on Services indicate that a non-violation provision first appeared in the 23 July 1990
draft text of a services agreement, in square brackets.
47  During 1990, several delegations had
                                                     
44 L/5776, not adopted, paras. 4.36 and 4.37.
45 BISD 35S/116, 161-162.
46 BISD 37S/228, 261-262.
47 MTN.TNC/W/35/Rev.1, p.356.IP/C/W/124
Page 15
submitted drafts of the Agreement, two of which had specifically addressed non-violation complaints
by effectively limiting them in different ways to benefits accruing under specific commitments.48  At
the May/June 1991 meeting of the Group of Negotiations on Services, many delegations expressed
views that non-violation cases needed careful circumscription and definition, especially in the light of
the possible unintended consequences of requiring Members to deregulate certain markets.49
4. Measure
(a) Nature of a "measure"
46. Article XXIII:1(b) of GATT 1994 requires the application by a Member of a "measure",
without providing for any a priori  exclusions as to what a "measure" might be.  The successful
non-violation claims under GATT 1947 have concerned governmental laws or regulations, for
example to impose charges, to grant production aids or to discontinue a subsidy.
47. The 1988 Panel Report on Japan – Semi-conductors  includes a discussion of the extent to
which less formal forms of governmental action, such as administrative guidance, might be
considered a restriction subject to Article XI:1 of GATT 1947 because:
"sufficient incentives or disincentives existed for non-mandatory measures to take
effect ... [and] the operation of the measures ... was essentially dependent on
Government action or intervention [because in such a case] the measures would be
operating in a manner equivalent to mandatory requirements such that the differencebetween the measures and mandatory requirements was only one of form and not of
substance ...".
50
48. The 1988 Panel Report on Japan - Restrictions on Imports of Certain Agricultural Products ,
which was a violation complaint, found that the informal administrative guidance used by theJapanese Government to restrict production of certai n agricultural products could be considered to be
a governmental measure within the meaning of Article XI:2 of GATT 1947 because it emanated from
the government and was effective in the Japanese context.  Specifically as regards the method used to
enforce certain measures, the Panel found that:
"the practice of 'administrative guidance' played an important role.  Considering that
this practice is a traditional tool of Japanese Government policy based on consensus
and peer pressure, the Panel decided to base its judgements on the effectiveness of the
measures  in spite of the initial lack of transparency.  In view of the special
characteristics of Japanese society the Panel wishes, however, to stress that its
approach in this particular case should not be interpreted as a precedent in other cases
where societies are not adapted to this form of enforcing government policies".
51
                                                     
48 Communication from Cameroon, China, Egypt, India, Kenya, Nigeria and Tanzania
(MTN.GNS/W/101, 4 May 1990, draft Articles 25 and 26); and communication from Switzerland(MTN.GNS/W/102, 7 June 1990, draft Article 27.1(b)).
49 See the Secretariat note on the meeting of 27 May to 6 June 1991 (MTN.GNS/42).
50 BISD 35S/116, 154-155.
51 BISD 37S/163, 242.IP/C/W/124
Page 16
49. The Japan – Film  Panel referred to both these Panel Reports and believed that it "should be
open to a broad definition of the term measure for the purposes of Article XXIII:1(b) which considers
whether or not a non-government binding action has an effect similar to a binding one".52  It further
found 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 in it.  It is difficult to estab lish bright-line rules in this regard, however.
Thus, that possibility will need to be examined on a case-by-case basis."53
(b) Reasonable expectations
50. The GATT and WTO practice establishes that a complaint of the type provided for under
subparagraph 1(b) of Article XXIII of GATT 1994 must be based on a measure that the complainant
could not have reasonably expected or anticipated.  This requirement is described in panel reports
both as the complainant's reasonable expectations as to the measures that would not be introduced by
the Member being complained against54, and the complainant's reasonable expectations as to the
benefit accruing to it under an agreement.55  It is also described in terms of what the complainant
"legitimately expected", "reasonably anticipated" and "reasonably foresaw".  A summary of the way
this matter has been treated in each successful case is presented below gives some idea of whatexpectations have been considered reasonable.
51. The Working Party Report on The Australian Subsidy on Ammonium Sulphate  found that the
complaining party was reasonably entitled to assume that the subsidies granted by the respondent
party to the fertilizer in respect of which it had negotiated a tariff concession and a competing
fertilizer would remain the same as that which had obtained at the time it negotiated the tariffconcession.  The Panel was influenced in particular by the combination of circumstances that the two
types of fertilizers were closely related, both had been subsidized and distributed through the same
agency and sold at the same price, neither had been subsidized before the Second World War, both
were subsidized at the same time due to a wartime shortage, and the subsidies for both were left in
place after the war.  It found that the complaining party in the circumstances could assume that thesubsidy would be applicable to both fertilizers so long as there was a domestic shortage of that type of
fertilizer.
56
52. The Panel Report on Germany - Sardines  found that the imposition of import duties and
another charge at different rates on different fish, and the removal of quantitative restrictions on
preparations of a certain variety of fish but not others, which resulted in relatively less favourable
treatment for those that had been the subject of a tariff concession, could not have been anticipated by
the government bringing the complaint at the time it had negotiated the concession.  The Panel wasinfluenced by the close relationship between the products to the point where they were often
considered directly competitive, that the question of equality of treatment had been discussed during
the tariff negotiations and, whilst it was not agreed what assurances had been given on this point, it
                                                     
52 Japan - Film, WT/DS44/R, para. 10.49.
53 ibid.,  para. 10.56 referring to the Panel Report, Japan – Semi-conductors , BISD 35S/116, and a
1989 Panel Report, EEC – Restrictions on Imports of Dessert Apples (Complaint by Chile) , BISD 36S/93.
54 See for instance: Panel Reports, Germany – Sardines,  BISD 1S/53, 58;  EEC - Canned Fruit,  L/5778,
not adopted, paras. 51, 52 and 79; EEC – Oilseeds,  BISD 37S/86, 128; Japan – Film,  WT/DS44/R, para. 10.82.
55 See for instance:  EEC - Canned Fruit,  L/5778, not adopted, para. 54;  EEC – Oilseeds,
BISD 37S/86, 126;  Japan – Film,  WT/DS44/R, para. 10.72.
56 BISD II/188, 192-193.IP/C/W/124
Page 17
was reasonable to assume that the complaining part y had relied on this in assessing the overall value
of the concessions offered.57
53. The Panel Report on Germany – Starch  considered promises made by a government during
negotiations but which it did not include in its schedule of concessions, but noted a solution agreed
bilaterally.58
54. In EEC – Canned Fruits  it was agreed by the parties that the complainant could not have
reasonably expected the introduction of the relevant  subsidies during tariff negotiations that took
place prior to their introduction.  The Panel also found in its report, which was not adopted, that the
complainant should have been aware of a subsidy introduced before a later set of negotiations and
taken due account of it.  It also found that, although Greece was not an EEC member State at the time
of the relevant tariff negotiations, the complainant should reasonably have anticipated that dried
grapes from Greece would receive an EEC subsidy if it acceded to the EEC because its raisins alreadyreceived duty-free access to the EEC and were the subject of a national subsidy, attaching importance
to the fact that Greece was the only EEC member State which produced the relevant product.  The
Panel noted that it might not have been reasonable  to assume that the EEC would introduce a subsidy
for producers in other member States who had not previously been subsidized and its report also
indicates that it was prepared to consider that any additional distortion of competition created by theEEC subsidy beyond that created by the Greek subsidy might not have been reasonably expected.
59
55. The Panel Report on EEC – Oilseeds  found that the complainant could reasonably have
expected that a tariff concession would provide an assurance of better market access through
improved price competition, and that it could not have anticipated the introduction of subsidies that
protected producers completely from the movement of prices for imports and thereby prevented tariffconcessions from having any impact on the competitive relationship between domestic and imported
oilseeds, and which had as one consequence that all domestically-produced oilseeds were disposed of
on the internal market notwithstanding the availability of imports.
60
(c) Timing
56. As can be seen from the above discussion, the question of the timing of the introduction of the
measure in relation to the timing of the negotia tion of the commitment the benefits of which the
measure is alleged to nullify or impair has been considered to be of key importance in regard to
establishing whether that measure could have been reasonably expected.  The general approach
adopted in cases under GATT 1947 was that the measure should have been introduced after the date
of the negotiation of the concession in question.61
57. However, there were cases where a measure not yet in force but whose application could have
been foreseen was considered to be a measure that could reasonably have been expected at the timethat the concession was negotiated.  The 1985 Panel Report on EEC - Citrus Products  rejected the
non-violation claim in respect of certain goods because certain EEC reports on advantages to be
granted to Mediterranean countries' agricultural products were public knowledge at the time of the
negotiation of the relevant concessions and the complainant's negotiators must have been aware that
                                                     
57 BISD 1S/53, 58.
58 BISD 3S/77.
59 L/5778, not adopted, para. 81.
60 BISD 37S/86, 129.
61 See, for instance, The Australian Subsidy on Ammonium Sulphate  BISD II/188, 194-5;  Germany –
Sardines  BISD 1S/53, 58, 59; and EEC – Citrus Products  L/5776, not adopted, paras. 4.27-4.34.IP/C/W/124
Page 18
the value of concessions would be affected by the anticipated extension and deepening of the
preferences.62
58. The 1998 Panel Report on Japan – Film  discussed this question of timing in some detail.  Its
main conclusions concerning this matter are as follows:
"10.79 We consider that the issue of reasona ble anticipation should be approached in
respect of specific "measures" in light of the following guidelines.  First, in the case of
measures shown by the United States to have been introduced subsequent to the
conclusion of the tariff negotiations at issue, it is our view that the United States has
raised a presumption that it should not be held to have anticipated these measures and it
is then for Japan to rebut that presumption.  Such a rebuttal might be made, for
example, by establishing that the measure at issue is so clearly contemplated in an
earlier measure that the United States should be held to have anticipated it.  However,there must be a clear connection shown.  In our  view, it is not sufficient to claim that a
specific  measure should have been anticipated because it is consistent with or a
continuation of a past general  government policy.  As in the EEC - Oilseeds  case, we
do not believe that it would be appropriate  to charge the United States with having
reasonably anticipated all GATT-consistent measures, such as "measures" to improvewhat Japan describes as the inefficient Ja panese distribution sector.  Indeed, if a
Member were held to anticipate all GATT- consistent measures, a non-violation claim
would not be possible.  Nor do we consider  that as a general rule the United States
should have reasonably anticipated Japanese measures that are similar to measures in
other Members' markets.  In each such in stance, the issue of reasonable anticipation
needs to be addressed on a case-by-case basis.
"10.80 Second,  in the case of measures shown by Japan to have been introduced prior
to the conclusion of the tariff negotiations at issue, it is our view that Japan has raised a
presumption that the United States should be held to have anticipated those measures
and it is for the United States to rebut that presumption.  In this connection, it is ourview that the United States is charged with knowledge of Japanese government
measures as of the date of their publication.  We realize that knowledge of a measure's
existence is not equivalent to understanding the impact of the measure on a specific
product market.  For example, a vague measure could be given substance through
enforcement policies that are initially une xpected or later changed significantly.
However, where the United States claims that it did not know of a measure's relevance
to market access conditions in respect of film or paper, we would expect the UnitedStates to clearly demonstrate why initially it could not have reasonably anticipated the
effect of an existing measure on the film or paper market and when it did realize the
effect.  Such a showing will need to be tie d to the relevant points in time (i.e., the
conclusions of the Kennedy, Tokyo and Uruguay Rounds) in order to assess the extent
of the United States' legitimate expectations of benefits from these three Rounds.  Asimple statement that a Member's measures were so opaque and informal that their
impact could not be assessed is not sufficient.  While it is true that in most past
non-violation cases, one could easily discer n a clear link between a product-specific
action and the effect on the tariff concession that it allegedly impaired, one can also
discern a link between general measures aff ecting the internal sale and distribution of
products, such as rules on advertising and premiums, and tariff concessions on products
in general."
63
                                                     
62 L/5778, not adopted, paras. 51-52.
63 WT/DS44/R.IP/C/W/124
Page 19
5. Causality
59. The GATT jurisprudence establishes that the non-violation remedy is only available where
nullification or impairment of a benefit accruing under an Agreement is caused by (or, in the language
of Article XXIII:1 of GATT, "as result of") the relevant measure.  The 1998 Panel Report on Japan –
Film  summarized the point as follows:
"(…) In other words, the United States [the complainant party] must show a clear
correlation between the measures and the adverse effect on the relevant competitive
relationship."64
60. It is an upsetting of the conditions of competition, and not necessarily an actual lowering of
import volumes, which must be caused by the relevant measure.  The 1990 Panel Report on EEC –
Oilseeds  expressed this point as follows:
"The approach of the CONTRACTING PARTIES reflects the fact that governments
can often not predict with precision what the impact of their interventions on import
volumes will be.  If a finding of nullification or impairment depended not only on
whether an adverse change in competitive conditions took place but also on whether
that change resulted in a decline in imports , the exposure of the contracting parties to
claims under Article XXIII:1(b) would depend on factors they do not control;  therules on nullification and impairment could consequently no longer guide government
policies.  Moreover, the contracting parties facing an adverse change in policies could
make a claim of nullification or impairment only after that change has produced
effects. (…)"
65
61. The 1998 Panel Report on Japan – Film  discussed the issue of causality by reference to four
parameters – the degree of causation that must be shown, the relevance of "origin-neutral" measures,
the relevance of intent and the extent to which the collective effect of measures may be considered.  In
regard to the first point, the panel found that the issue at that stage of the proceeding was whether a
measure had made more than a de minimis  contribution to nullification or impairment.  Secondly, the
Panel found that, even where measures do not discriminate de jure  on the basis of origin, they may do
so on a de facto basis, but in these situations th e complaining party would need to make a detailed
showing of any claimed disproportionate impact on impor ts.  Thirdly, with respect to intent, the Panel
found that what matters for purposes of establishing causality is the impact of the measure,
i.e. whether it upsets competitive relationships, but a showing of intent to restrict imports might make
a panel more inclined to find a causal relationship in specific cases involving measure which, on their
face, appear to be origin-neutral.  Fourthly, with re gard to the collective impact of measures, it did not
reject the possibility of undertaking such an examin ation, but indicated its sensitivity to the fact that
the technique of engaging in a combined assessment of measures so as to determine causation was
subject to potential abuse and therefore must be approached with caution and circumscribed as
necessary.66
62. The Panel in Japan – Film  also noted the potential relevance of the combined effect of
different measures, as follows:
"It is not without logic that a measure, when analysed in isolation, may have only very limited
impact on competitive conditions in a market, but may have a more significant impact on
                                                     
64 ibid. para. 10.82.
65 BISD 37S/86, 130.
66 WT/DS44/R, para. 10.82.IP/C/W/124
Page 20
such conditions when seen in the context of – in combination with – a larger set of
measures."67
6. Burden of demonstration of nullification and impairment
63. The 1962 Panel Report on Uruguayan Recourse to Article XXIII  noted:
"While it is not precluded that a prima facie case of nullification or impairment could
arise even if there is no infringement of GATT provisions, it would be in such cases
incumbent on the country invoking Article XXIII to demonstrate the grounds and
reasons for its invocation.  Detailed submissions on the part of that contracting party
on these points were therefore essential for a judgement to be made under this
Article."68
64. This approach, involving a distinction between the treatment of violation and non-violation
cases, was codified in the Agreed Description of the Customary Practice of the GATT in the Field ofDispute Settlement contained in the Annex to the Understanding on Notification, Consultation,
Dispute Settlement and Surveillance of 28 November 1979.
69  Paragraph 5 of that text included the
following provisions:
"In cases where there is an infringement of the obligations assumed under the General
Agreement, the action is considered prima facie to constitute a case of nullification orimpairment. … If a contracting party bringing an Article XXIII case claims that
measures which do not conflict with the provisions of the General Agreement have
nullified or impaired benefits accruing to it under the General Agreement, it would be
called upon to provide a detailed justification."
65. Under the WTO, Article 26.1(a) of the DSU, which applies to non-violation complaints of the
type provided for under Article XXIII:1(b) of GATT 1994, requires "the complaining party to present
a detailed justification in support of any complaint relating to a measure which does not conflict with
the relevant covered agreement".  This contrasts w ith the approach in relatio n to violation complaints
set out in Article 3.8 of the DSU as follows:
"In cases where there is an infringement of the obligations assumed under a covered
agreement, the action is considered prima facie to constitute a case of nullification or
impairment.  This means that there is normally a presumption that a breach of the
rules has an adverse impact on other Members parties to that covered agreement, and
in such cases, it shall be up to the Member against whom the complaint has been
brought to rebut the charge."
66. The failure to meet the burden of demonstrating actual nullification and impairment was
decisive in a number of cases including non-violation claims, including Japan – Semi-conductors ,
United States – 1955 Waiver  and Japan – Film .
70
                                                     
67 ibid., para. 10.88.
68 BISD 11S/95, 100.
69 BISD 26S/210.
70 BISD 35S/116, BISD 37S/228 and WT/DS44/R, respectively.IP/C/W/124
Page 21
7. Remedy
(a) No modification or withdrawal of measure required
67. Since in a non-violation case the measure having the effect of nullifying or impairing benefits
is not in itself inconsistent with the obligations under the agreement in question of the country which
has taken it, GATT and WTO practice and law make it clear that the remedy that may berecommended in such a case cannot require withdrawal of the measure.  This was made clear in the
first non-violation case considered under GATT 1947 on The Australian Subsidy on Ammonium
Sulphate .
71  The Working Party stated in its Report that:
"16. (…)  There is in their [the working party's] view nothing in Article XXIII
which would empower the CONTRACTING PARTIES to require a contracting party
to withdraw or reduce [the measure found not to be inconsistent with the General
Agreement], and the recommendation made by the working party should not be takento imply the contrary.  The ultimate power of the CONTRACTING PARTIES under
Article XXIII is that of authorizing an affected contracting party to suspend the
application of appropriate obligations or concessions under the General Agreement.
(…)."
68. A similar finding was set out by reference to the drafting history of Article XXIII:1 in the
1986 Panel Report on United States – Trade Measures Affecting Nicaragua
72 (which was not
adopted).  This included the following passage:
"As to the first of the above options [i.e. a recommendation that the relevant measure
be withdrawn] the Panel noted the following:  It is clear from the drafting history that
in case of recommendations on measures not found to be inconsistent with theGeneral Agreement, the contracting parties 'are under no specific and contractual
obligations to accept those recommendations' (EPCT/A/PV/5, p.16).  The report of
the Sixth Committee during the Havana Conference notes with respect to the power
of the Executive Board to make recommendations to member States in any matter
arising under Article 93:1(b) or (c) of the Havana Charter (which corresponds toArticle XXIII:1(b) and (c) of the General Agreement):  'It was agreed that
subparagraph 2(e) of Article 94 does not empower the Executive Board or the
Conference to require a Member to suspend or withdraw a measure not in conflict
with the Charter' (…)."
73
69. With regard to the WTO, Article 26.1(b) of the DSU provides:
"… where a measure has been found to nullify or impair benefits under, or impede
the attainment of objectives, of the relevant covered agreement without violationthereof, there is no obligation to withdraw the measure.  However, in such cases, the
panel or Appellate Body report shall recommend that the Member concerned make a
mutually satisfactory adjustment."
                                                     
71 BISD II/188, 195, quoted with approval in EEC – Citrus Products  L/5776, not adopted, para. 5.2 and
EEC – Canned Fruit  L/5778, not adopted, para. 82 .
72 L/6053.
73 ibid. para. 5.8.IP/C/W/124
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It should further be noted that Article 3.2 of the DSU provides, as follows:
"3.2 (…)  Recommendations and rulings of the DSB cannot add to or diminish the
rights and obligations provided in the covered agreements."
Similarly, Article 19.2 of the DSU provides:
"19.2 In accordance with paragraph 2 of Article 3, in their findings and
recommendations, the panel and Appellate Body cannot add to or diminish the rights
and obligations provided in the covered agreements."
70. Article XXIII:3 of the GATS makes reference to modification or withdrawal of the measure
but does so as one of the possible outcomes of a mutually satisfactory adjustment of commitments
between the parties concerned on the basis of the provisions of the GATS contained in its
Article XXI:2 concerning negotiations on the modification of Schedules.
(b) Mutually satisfactory adjustment
71. Under the WTO, the recommendation that may be made in non-violation cases of the type
provided for under Article XXIII:1(b) of the GATT  1994 is, as indicated in the quote from the DSU
reproduced in paragraph 69 above, that "the Members concerned make a mutually satisfactory
adjustment".
72. This provision of the DSU draws on experience under GATT 1947.  The 1985 Panel Report
on EEC – Canned Fruit , which was not adopted, noted that in previous non-violation complaints of
nullification or impairment of tariff concessions (referring specifically to The Australian Subsidy on
Ammonium Sulphate and Germany – Sardines ):
"the CONTRACTING PARTIES had recommended that the party against which the
finding had been made consider ways and means to remove the competitiveinequality brought about by the measure at issue."
74
It then submitted a draft recommendation of that kind.75  The recommendation in the Panel Report on
EEC – Oilseeds  was to the same effect, although drafted differently.76
73. Some panels have recommended or suggested particular ways by which a mutually
satisfactory adjustment could be effected.  The Working Party Report on The Australian Subsidy on
Ammonium Sulphate  explained its reasoning in the following passage:
"The sole reason why the adjustment of subsidies to remove any competitive
inequality between the two products arising from subsidization is recommended is
that, in this particular case, it happens that such action appears to afford the best
prospect of an adjustment of the matter satisfactory to both parties."77
74. This passage was quoted with approval in the 1985 Panel Report on EEC – Citrus Products78
and the 1986 Panel Report on United States – Trade Measures Affecting Nicaragua79, neither of
which was adopted, and the latter of which added th at it would have suggested the withdrawal of the
                                                     
74 L/5778, not adopted, para. 82.
75 ibid., para. 83.
76 BISD 37S/86, 132.
77 BISD II/188, 195.
78 L/5776, not adopted, para. 5.2.
79 L/6053, not adopted, para. 5.10.IP/C/W/124
Page 23
relevant measure if it had offered the best prospect of a mutually satisfactory adjustment, but it was
agreed that this was not the case.
75. The Panel Report on EEC – Citrus Products  suggested, without prejudice to any other
solution which the parties might arrive at, that the EEC should consider reducing certain MFN tariff
rates, which would have effectively restored MFN treatment and eliminated the preference without
withdrawing the erstwhile preferential measures the subject of the dispute.80
76. Another suggestion made, in this case, by the Panel on EEC – Oilseeds , was that the
impairment of the tariff concessions that had been found could be remedied either by a modification
of the new Community support system for oilseeds or by the EEC renegotiating its tariff concessions
for oilseeds under Article XXVIII of the GATT 1947.81
77. As indicated earlier, Article XXIII:3 of the GATS specifies that a mutually satisfactory
adjustment in non-violation disputes under that Agreement (which can only apply to allegednullification or impairment of benefits accruing from a specific commitment) shall be "on the basis of
paragraph 2 of Article XXI", concerning the renegotiation of specific commitments contained in
national Schedules.  Article XXI:2 of the GATS reads as follows:
"(a) At the request of any Member the benefits of which under this Agreement
may be affected (referred to in this Article as an "affected Member") by a proposedmodification or withdrawal notified under subparagraph 1(b) [of Article XXI], the
modifying Member shall enter into negotiations with a view to reaching agreement on
any necessary compensatory adjustment.  In such negotiations and agreement, the
Members concerned shall endeavour to maintain a general level of mutually
advantageous commitments not less favourable to trade than that provided for inSchedules of specific commitments prior to such negotiations.
"(b) Compensatory adjustments shall be made on a most-favoured-nation basis."
78. Under the WTO, Article 26.1(c) of the DSU puts the responsibility for making suggestions on
ways and means of reaching a mutually satisfactory adjustment on an arbitrator who may be requested
by either party under Article 21.3 of the DSU.  He may be asked to make a determination of the levelof benefits which have been nullified or impaired as well as to suggest ways and means of reaching a
mutually satisfactory adjustment.  His suggestions shall not be binding on the parties to the dispute.
Article 26.1(d) of the DSU states that, notwithstandin g the normal rule that compensation should be a
temporary remedy, in the case of non-violation cases of the type described in Article XXIII:1(b) of
GATT 1994 "compensation may be part of a mutually satisfactory adjustment as final settlement of
the dispute".
(c) Suspension of concessions or other obligations
79. Both under the provisions of the GATT 1947 and under the WTO, authorization of suspension
of concessions or other obligations remains the final, and least preferred, remedy in regard to
successful non-violation cases as well as violation cases.  While this is made explicit in
Article XXIII:3 of the GATS, which states that "in the event an agreement cannot be reached between
the Members concerned [on a renegotiation of the commitment], Article 22 of the DSU shall apply",there is nothing in the DSU which would exclude non-violation cases from applicability the rules of
Article 22 on withdrawal of concessions or other obligations.  There has been no specific experience
                                                     
80 L/5776, not adopted, para. 5.3.
81 BISD 37S/86, 132.IP/C/W/124
Page 24
in regard to requests for, let alone authorization of, withdrawal of concessions or other obligations in
regard to non-violation cases.
B. COMPLAINTS OF THE TYPE PROVIDED FOR UNDER SUBPARAGRAPH 1(c) OF ARTICLE XXIII OF
GATT 1947 AND GATT 1994
80. Article XXIII:1(c) of GATT 1994 provides for complaints where a Member considers that
any benefit accruing to it directly or indirectly under the Agreement is being nullified or impaired or
that the attainment of any objective of the Agreement is being impaired as a result of "the existence of
any other situation", giving rise to the common term "situation" complaints.
81. Article 26.2 of the DSU expressly provides that:
"Where the provisions of paragraph 1( c) of Article XXIII of GATT 1994 are
applicable to a covered agreement, a panel may only make rulings and
recommendations where a party considers that a benefit accruing to it directly orindirectly 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
existence of a situation other than those to which the provisions of paragraphs 1(a)
and 1(b) of Article XXIII of GATT 1994 are applicable."
82. It appears that, at least to some of the original negotiators of the GATT, a situation under
subparagraph 1(c) may include macroeconomic or employment factors.  Discussion of the
corresponding article of the Geneva Draft Charter included a statement that it gave a country a right
"to seek modification of the undertakings it has given if, by the action of others, conditions are created
in which it can no longer carry out those undertakings.  In other words, if there is a worldwide
collapse of demand; if a shortage of a particular currency places us all in balance-of-paymentdifficulties; if we become subject again to widespread fluctuations in the prices of primary products
with devastating effects upon individual economies…".
82
83. Similar views were expressed in statements by a Havana Sub-Committee, referring to the
corresponding article of the Havana Charter, and during the 1954-55 Review Session by the Review
Working Party on Quantitative Restrictions and the Review Working Party on "Organizational andFunctional Questions".
83
84. Complaints under subparagraph 1(c) of Article XXIII of GATT 1947 were never the
foundation for a recommendation or ruling of the GATT CONTRACTING PARTIES, although they
were made in a small number of cases.
85. In 1953, the Report on the Accession of Japan by the Ad hoc  Committee on Agenda and
Intersessional Business expressed the view that "violent disruption of trading conditions … if
remedial action consistent with the General Agreement would lead to a general raising of tariff levelsand other barriers to world trade" would be a situ ation under subparagraph 1(c) of Article XXIII.  A
later GATT Working Party Report noted that certain countries did not regard the approval of an
interpretation of Article XXIII on the lines of that contained in the Report of the Ad Hoc  Committee
"as necessary or desirable", whilst other delegations disagreed.
84
                                                     
82 EPCT/A/PV/5 p.14, quoted in the Analytical Index (WTO, 1995) together with the other information
set out in this section concerning the application of subparagraph 1(c) of Article XXIII, at p.668-671.
83 ibid.
84 See the Analytical Index , p.669-670, referring to G/55/Rev.1, BISD 2S/117, 119, para. 9.IP/C/W/124
Page 25
86. In 1974, Canada made a complaint under subparagraph 1(c) in Article XXIV:6 Renegotiations
between Canada and the EEC  concerning the EEC's new customs tariff schedules and whether they
maintained a general level of reciprocal and mutually advantageous concessions between Canada and
the EEC.85  A panel was established but the dispute was resolved bilaterally.
87. In 1983, the European Communities made a complaint under Article XXIII:2 in Japan –
Nullification or Impairment of the Benefits Accruing to the EEC under the General Agreement and
Impediment to the Attainment of GATT Objectives86 alleging that "benefits of successive GATT
negotiations with Japan have not been realized owing to a series of factors particular to the Japanese
economy …".  In particular, the complainant considered that "the general GATT objective of
'reciprocal and mutually advantageous arrangements' has not been achieved".  The complaint was not
pursued.
88. The WTO permits complaints under subparagraph 1(c) of Article XXIII in respect of disputes
under all covered agreements, except the GATS.  No su ch complaints have been formally raised since
the establishment of the WTO.  Article XXIII:3 of the GATS does not permit complaints of this type
under that Agreement.
89. The usual DSU procedures only apply to complaints under subparagraph 1(c) of Article XXIII
up to and including the point at which a panel report is circulated to Members.  Thereafter,Article 26.2 of the DSU provides that the old dispute settlement rules and procedures contained in the
Decision of 12 April 1989 on Improvements to th e GATT Dispute Settlement Rules and Procedures
87
shall apply to consideration for adoption, and surveillance and implementation of recommendations
and rulings.  That Decision provides for a continuation of the practice of adopting dispute settlement
reports by consensus and does not provide for an Appellate Body stage.  Section I of the Decision
requires prompt compliance with recommendations or rulings and a procedure for monitoring
implementation, but it does not provide for any arbitration on the reasonable period of time for
implementation nor for procedures equivalent to those in Article 22 of the DSU regarding
compensation and the suspension of concessions or other obligations.  Section I also refers to further
action which might be taken in cases brought by de veloping countries.  Article 26.2(b) of the DSU
requires separate panel reports for matters raised as a situation complaint and other matters, even
when they are raised together, to take account of the difference in applicable procedures.
90. Article 26.2(a) of the DSU provides that a complaining party "shall present a detailed
justification in support of any argument ma de with respect to" a situation complaint.
C. IMPEDIMENT TO ATTAINMENT OF ANY OBJECTIVE
91. Article XXIII:1 allows complaints to be made on the basis that that the attainment of any
objective of an Agreement is being impeded.  This ground for complaint is available in respect of allsubparagraphs of Article XXIII:1, including viol ation claims, but no Panel Report has ever dealt
substantively with it.
92. The complainant in Japan – Semi-conductors  submitted that the third country market
monitoring system in question "was contrary to the basic philosophy and objectives of the General
Agreement".  More specifically, it stated:
"that one of the objectives in the Preamble of the General Agreement was the
'substantial reduction of tariff and other barriers to trade, and that the objective of this
                                                     
85 L/4107.
86 L/5479.
87 BISD 36S/61.IP/C/W/124
Page 26
reduction included the expansion of production and exchange of goods.  …  To
achieve these objectives, it was necessary for all contracting parties not to manipulate
the system through the imposition of arbitrary, unilateral export restrictions especially
in areas where they had gained a substantial degree of preeminence in terms of
concentration of production of essential products."88
Japan stated that the measures "accorded with the spirit and the basic objectives of GATT".89  Th e
Panel considered the evidence submitted insufficient to support this part of the complaint.90
93. Various complaints under GATT 1947 have alleged impediments to attainment of an
objective of that Agreement.  Australia's 1979 complaint in European Communities – Refunds on
Exports of Sugar91 made this claim but, since no detailed submissions were made on this point, the
Panel Report did not consider it.  The European Communities' 1983 complaint against Japan92, which
it did not pursue, was partly based on an alleged impediment to attainment of what it called the GATTobjective of "reciprocal and mutually advantageous arrangements".  Australia also referred to the
objectives of the GATT in a 1984 non-violation claim which it did not pursue in EEC – Operation of
Beef and Veal Regime.
93  Nicaragua's 1986 complaint in United States – Trade Measures Affecting
Nicaragua  alleged, among other things, that a trade embargo impeded achievement of the objectives
of the General Agreement.  The Panel, which had limited terms of reference, concluded in its Report,which was not adopted, that trade embargoes ran counter to the basic "aims" of the GATT, "namely to
foster non-discriminatory and open trade policies, to further the development of the less-developed
contracting parties and to reduce uncertainty in trade relations."
94
94. Since the establishment of the WTO, a number of requests for consultations or establishment
of a panel have alleged an impediment to attainment of the objectives of an agreement in question.95
No such issue has been treated substantively by a panel.
95. The WTO allows complaints on the grounds of an alleged impediment to the attainment of an
objective under all covered agreements, except the GATS.  Article XXIII:3 of the GATS does not
allow complaints of this type.
IV. INFORMATION AVAILABLE ON THE USE OF THE NON-VIOLATION CONCEPT
IN DISPUTES ON INTELLECTUAL PROPERTY MATTERS ELSEWHERE
96. The non-violation remedy originated in bilateral trade agreements in the decades before
GATT 1947.  It was designed to protect agreed tariff reductions as well as the reciprocal "balance of
concessions" from being undermined by non-tariff trade barriers or by other governmental measures.
In addition, the treaties prohibited or limited certain policy measures which restricted or distorted
                                                     
88 Panel Report, BISD 35S/116, 137-138.
89 ibid.,  138.
90 ibid., 162.
91 Panel Report adopted on 6 November 1979, BISD 26S/290.
92 See paragraph 87 of this note.
93 C/M/183.
94 Panel Report, L/6053, not adopted.
95 These include:  the request of the European Communities for the establishment of a panel in United
States – The Cuban Liberty and Democratic Solidarity Act  (WT/DS38/2); the European Communities' request
for consultations in United States – Measure Affecting Government Procurement (WT/DS88/1 and
WT/DS88/3);  the Argentine request for consultations in United States – Tariff Rate Quota for Imports of
Groundnuts  (WT/DS111/1);  the Canadian request for the establishment of a panel in European Communities –
Measures Affecting Asbestos and Products Containing Asbestos  (WT/DS135/3);  and the European
Communities' request for consultations in United States – Sections 301-310 of the Trade Act of 1974
(WT/DS152/1).95IP/C/W/124
Page 27
trade, and permitted termination on short notice by a disappointed party, to achieve the same object.
These agreements mainly concerned tariff concessions and, to our knowledge, did not include
provisions on the protection of intellectual property.  Since that time, there have been a large number
of regional and bilateral trade agreements, but only more recently do they appear to have covered
intellectual property matters with any specificity.  This section of this note therefore focuses on recentagreements of that type.
1. NAFTA
97. The North American Free Trade Agreement (NAFTA) entered into force on 1 January 1994.
It contains detailed provisions on national treatment, minimum standards and enforcement of
intellectual property.  It allows non-violation complaints in relation to certain Parts, including the Part
on intellectual property, although it is worded differently from Article XXIII:1 of GATT 1994.  The
relevant provisions are as follows:
"Article 2004: Recourse to Dispute Settlement Procedures
"Except as otherwise provided in this Agreement, the dispute settlement provisions of
this Chapter shall apply with respect to the avoidance or settlement of all disputes
between the Parties regarding the interpretation or application of this Agreement or
wherever a Party considers that an actual or proposed measure of another Party is orwould be inconsistent with the obligations of this Agreement or cause nullification or
impairment in the sense of Annex 2004."
"Annex 2004: Nullification and Impairment
"1. If any Party considers that any benefit it could reasonably have expected to
accrue to it under any provision of:
(a) Part Two (Trade in Goods), except for those provisions of
Annex 300-A (Automotive Sector) or  Chapter Six (Energy) relating
to investment;
(b) Part Three (Technical Barriers to Trade);
(c) Chapter Twelve (Cross-Border Trade in Services); or(d) Part Six (Intellectual Property),
is being nullified or impaired as a result of the application of any measure that is not
inconsistent with this Agreement, the Part y may have recourse to dispute settlement
under this Chapter.
"2. A Party may not invoke:
(a) paragraph (1)(a) or (b), to the extent that the benefit arises from any
cross-border trade in services provision of Part Two, or
(b) paragraph 1 (c) or (d),
with respect to any measure subject to an exception under Article 2101 (General
Exceptions)."IP/C/W/124
Page 28
98. The general exceptions in Article 2101 are based on Article XX of GATT 1947 and are
available in relation to certain Parts of NAFTA, which do not include the Part on intellectual property.
99. In addition, NAFTA contains the following provisions:
"Article 2106: Cultural Industries
"Annex 2106 applies to the Parties specified in that Annex with respect to 
cultural industries.
"Article 2107: Definitions
"For purposes of this Chapter:
cultural industries  means persons engaged in any of the following 
activities:
(a) the publication, distribution, or sale of books, magazines, 
periodicals or newspapers in print or machine readable form but not including the sole activity of printing or typesetting 
any of the foregoing;
(b) the production, distribution, sale or exhibition of film or 
video recordings;
(c) the production, distribution, sale or exhibition of audio or 
video music recordings;
(d) the publication, distribution or sale of music in print or 
machine readable form;  or
(e) radiocommunications in which the transmissions are 
intended for direct reception by the general public, and all radio, television and cable broadcasting undertakings and all 
satellite programming and broadcast network services;
"Annex 2106
"Notwithstanding any other provision of this Agreement, as between Canada
and the United States, any measure adopted or maintained with respect tocultural industries, except as specifically provided in Article 302 (Market
Access - Tariff Elimination), and any measure of equivalent commercial
effect taken in response, shall be governed under this Agreement exclusively
in accordance with the provisions of the Canada - United States Free Trade
Agreement . The rights and obligations between Canada and any other Party
with respect to such measures shall be identical to those applying between
Canada and the United States."
100. There have been no reports on non-violation claims in respect of intellectual property under
NAFTA to date.IP/C/W/124
Page 29
2. Group of Three Free Trade Treaty
101. The Mexico-Colombia-Venezuela or "Group of Three" Free Trade Treaty entered into force
on 1 January 1995.  It contains detailed provisions on national treatment, MFN treatment, minimum
standards and enforcement of certain intellectual property rights (Chapter XVIII).  Parties may
complain where they consider that a measure of another party is incompatible with its obligationsunder the Treaty or nullifies or impairs the benefits which the parties could reasonably have expected
to receive from the application of certain chapters of the Treaty.  These do not include the intellectual
property chapter (Article 19-02 and Annex).  Disputes regarding any matter arising under both this
Treaty and GATT 1947 or any agreement negotiated under it may be settled in either forum at the
discretion of the complaining party (Article 19-03).
3. Mexico-Bolivia Free Trade Treaty and Mexico-Costa Rica Free Trade Treaty
102. The Mexico-Bolivia Free Trade Treaty and the Mexico-Costa Rica Free Trade Treaty both
entered into force on 1 January 1995.  They contain detailed provisions on national treatment, MFN
treatment, minimum standards and enforcement of certain intellectual property rights (Chapters XVI
and XIV respectively).  In each case, parties may complain where they consider that a measure of
another party is incompatible with its obligations under the Treaty or nullifies or impairs the benefits
which the parties could reasonably have expected to receive from the application of certain chaptersof the Treaty.  These include the intellectual property chapter (Article 19-02 and Annex;
Article 17-02 and Annex).  However,  a party may not invoke these provision with respect to measures
taken under one of the general exceptions according to provisions very similar to paragraph 2 of
Annex 2004 of NAFTA (paragraph 2 of Annex to Article 19-02, referring to Article 20-01;
paragraph 2 of Annex to Article 17-02, referring to Article 18-01).  The Mexico-Costa Rica FreeTrade Treaty also prevents non-violation complaints  in respect of the intellectual property chapter in
relation to measures taken under a general exception in the chapter on trade in services (paragraph 2
of Annex to Article 17-02, referring to Article 9-16).  Disputes regarding any matter arising under
either Treaty and GATT 1947 or any agreement negotiated under it may be settled in either forum at
the discretion of the complaining party (Article 19-03 and Article 17-03 respectively).
4. Mexico-Nicaragua Free Trade Treaty
103. The Mexico-Nicaragua Free Trade Treaty entered into force on 1 July 1998.  It also contains
detailed provisions on national treatment, MFN treatment, minimum standards and enforcement of
certain intellectual property rights (Seventh Part).  The provisions on non-violation complaints
(Article 20-02 and Annex) are basically the same as those in the Mexico-Bolivia Free Trade
Agreement, except that a party may complain where it considers that a proposal, as well as a measure,
of the other party is incompatible with its obligations under the Treaty or nullifies or impairs thebenefits which the parties could reasonably have expected to receive from the application of certain
Parts of the Treaty.  Another difference is that th e choice of forum provision (Article 20-03) refers to
the WTO Agreement rather than to the GATT.
5. Centroamerica-Dominican Republic Free Trade Treaty
104. The Centroamerica-Dominican Republic Free Trade Treaty was signed by the governments of
Costa Rica, El Salvador, Guatemala, Honduras , Nicaragua and the Dominican Republic on
16 April 1998.  The TRIPS Agreement is incorporated in its entirety in the Treaty, without excluding
any provision including all those in Article 64 of the TRIPS Agreement (Article 14-01).  As a general
rule under the Treaty, a party may complain where it considers that an actual or proposed measure is
incompatible with the Treaty or nullifies or impairs the benefits which a party reasonably could haveexpected to receive from the application of the Treaty (Article 16-03).  Disputes regarding any matter
arising under both this Treaty and the WTO Agreement may be raised in either forum at the discretionIP/C/W/124
Page 30
of the complaining party (Article 16-04).  The Centroamerican parties may not bring complaints under
this Treaty against each other (Article 16-01).
105. There have been no reports on non-violation complaints in relation to intellectual property
under any of the treaties mentioned above.
106. None of the agreements mentioned above permit situation complaints analogous to those
available under subparagraph 1(c) of Article XXIII of GATT 1994, nor do they permit complaints
based on an impediment to attainment of any of their objectives.IP/C/W/124
Page 31
ANNEX 1
Excerpt from the TRIPS Agreement
Article 64
Dispute settlement
1. The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied
by the Dispute Settlement Understanding shall apply to consultations and the settlement of
disputes under this Agreement except as otherwise specifically provided herein.
2. Subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall not apply to the
settlement of disputes under this Agreement for a period of five years from the date of entry
into force of the WTO Agreement.96
3. During the time-period referred to in paragraph 2, the Council for TRIPS shallexamine the scope and modalities for complaints of the type provided for under
subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 made pursuant to this
Agreement, and submit its recommendations to the Ministerial Conference for approval.  Any
decision of the Ministerial Conference  to approve such recommendations or to extend theperiod in paragraph 2 shall be made only by consensus, and approved recommendations shall
be effective for all Members without further formal acceptance process.
Excerpt from GATT 1994
Article XXIII
Nullification or impairment
1. If any contracting party should consider that any benefit accruing to it directly or
indirectly under this Agreement is being nullified or impaired or that the attainment of any
objective of the Agreement is being impeded as the result of:
(a) the failure of another contracting party to carry out its obligations under this
Agreement, or
(b) the application by another contracting party of any measure, whether or not it
conflicts with the provisions of this Agreement, or
(c) the existence of any other situation,
the contracting party may, with a view to the satisfactory adjustment of the matter, make
written representations or proposals to the other contracting party or parties which it considers
to be concerned.  Any contracting party thus approached shall give sympathetic consideration
to the representations or proposals made to it.
2. (…)
                                                     
96 The date of entry into force of the WTO Agreement was 1 January 1995.IP/C/W/124
Page 32
ANNEX 2
Excerpt from the Panel Report on India – Patents I (WT/DS50/R)
C. Interpretation of the TRIPS Agreement
7.18 Before examining specific measures in dispute, we  first deal with a general interpretative issue,
namely standards applicable to interpretation of the TRIPS Agreement.  In the first instance, Article 3.2
of the DSU directs panels to clarify the provisi ons of the covered agreements, including the TRIPS
Agreement, "in accordance with customary rules of in terpretation of public international law".  As a
number of recent panel reports and Appellate Body  reports have pointed out, customary rules of
interpretation of public international law are embodied  in the text of the 1969 Vienna Convention on the
Law of Treaties ("Vienna Conven tion").   Article 31(1) of th e Vienna Convention provides:
"A treaty shall be interpreted in good faith  in accordance with the ordinary meaning to
be given to the terms of the treaty in thei r context and in the light of its object and
purpose."
Accordingly, the TRIPS Agreement must be interpreted in good faith in light of (i) the ordinary meaning
of its terms, (ii) the context and (iii) its object  and purpose.  In our view, good faith interpretation
requires the protection of legitimate expectations derived from the protection of intellectual property
rights provided for in the Agreement.  A similar view has also been taken in the Underwear  panel
report:
"[T]he relevant provisions [of the Agreement on Textiles and Clothing] have to be
interpreted in good faith.  Based upon the wording, the context and the overall
purpose of the Agreement, exporting Member s can ... legitimately expect that market
access and investments made would not be frustrated by importing Members takingimproper recourse to such action." 
97
7.19 Second, we must bear in mind that the TRIPS Agreement, the entire text of which was newly
negotiated in the Uruguay Round and occupies a relatively self-contained, sui generis  status in the WTO
Agreement, nevertheless is an integral part of the WTO system, which itself builds upon the experience
over nearly half a century under the General Agreement on Tariffs and Trade 1947 ("GATT 1947").
Indeed, Article XVI:1 of the WTO Agreement provides:
"Except as otherwise provided under this  Agreement or the Multilateral Trade
Agreements, the WTO shall be guided by the decisions, procedures and customary
practices followed by the CONTRACTING PARTIES to GATT 1947 and the bodies
established in the framework of GATT 1947."
Since the TRIPS Agreement is one of the Multilater al Trade Agreements, we must be guided by the
jurisprudence established under GATT 1947 in interpreting the provisions of the TRIPS Agreement
unless there is a contrary provision.  As  the Appellate Body indicated in the Japan -Alcoholic Beverages
case, adopted panel reports "create legitimate e xpectations among WTO Members, and, therefore,
should be taken into account where they are relevant to any dispute".98  Indeed, in light of the fact that
                                                     
97 Panel Report on United States - Restrictions on Imports of Cotton and Man-made Fibre Underwear , adopted on
25 February 1997, WT/DS24/R, para. 7.20.
98 Appellate Body Report on Japan - Taxes on Alcoholic Beverages , adopted on 1 November 1996, WT/DS8/AB/R,
WT/DS10/AB/R, WT/DS13/AB/R, page 14.IP/C/W/124
Page 33
the TRIPS Agreement was negotiated as a part of the overall balance of concessions in the Uruguay
Round, it would be inappropriate not to apply the same  principles in interpreting the TRIPS Agreement
as those applicable to the interpretation of other parts of the WTO Agreement.
7.20 The protection of legitimate expectations of Members regarding the conditions of competition is
a well-established GATT principle, which derives in part from Article XXIII, the basic dispute
settlement provisions of GATT (and the WTO).99  Regarding Article III of GATT, the panel on Italian
Agricultural Machinery  stated that "the intent of the drafters was to provide equal conditions of
competition once goods had been cleared through customs".100  This principle was later elaborated by
the Superfund  panel, which stated that "[t]he general prohibition of quantitative restrictions under
Article XI ... and the national treatment obligation of Article III ... have the same rationale, namely to
protect expectations of the contracting parties as  to the competitive relationship between their products
and those of the other contracting parties".101 The panel on Section 337 , which dealt with issues
involving protection of intellectual property at the border, reached similar conclusions.102
7.21 The protection of legitimate expectations is central  to creating security and predictability in the
multilateral trading system.  In this connection, we note that disciplines formed under GATT 1947 (so-called GATT acquis ) were primarily directed at the treatm ent of the goods of other countries, while
rules under the TRIPS Agreement mainly deal with the treatment of nationals of other WTO Members.
While this calls for the concept of the protection of  legitimate expectations to apply in the TRIPS areas
to the competitive relationship between a Member's own nationals and those of other Members (rather
than between domestically produced goods and the g oods of other Members, as in the goods area), it
does not in our view make inapplicable the unde rlying principle.  The Preamble to the TRIPS
Agreement, which recognizes the need for new rules a nd disciplines concerning "the applicability of the
basic principles of GATT 1994 ...", provides a useful context in this regard.
7.22 In conclusion, we find that, when interpreting th e text of the TRIPS Agreement, the legitimate
expectations of WTO Members con cerning the TRIPS Agreement must be taken into account, as well as
standards of interpretation developed in past panel reports in the GATT framework, in particular those
laying down the principle of the protection of c onditions of competition flowing from multilateral trade
agreements.
                                                     
99 We note in this regard that Article 64 of the TRIPS Ag reement (on dispute settlement) provides for the application
of Article XXIII of GATT 1994, as elaborated by the DSU, to the settlement of disputes under the TRIPS Agreement.
100 Panel Report on Italian Discrimination against Imported Agricultural Machinery , adopted on 23 October 1958,
BISD 7S/60, para. 12-13
101 Panel Report on United States - Taxes on Petroleum and Certain Imported Substances , adopted on 17 June 1987,
BISD 34S/136, para. 5.2.2.
102 Panel Report on United States - Section 337 of the Tariff Act of 1930 , adopted on 7 November 1989,
BISD 36S/345, para. 5.13.IP/C/W/124
Page 34
ANNEX 3
Excerpt from the DSU
Article 26
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 benefi t accruing to it directly or indirectly under the
relevant covered agreement is being nullified or impaired or the attainment of any objective of thatAgreement 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 Agr eement. 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 proced ures 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.
2. Complaints of the Type Described in Pa ragraph 1(c) of Article XXIII of GATT 1994
Where the provisions of paragraph 1(c) of Article XXIII of GATT 1994 are applicable to a
covered agreement, a panel may only make rulings and recommendations where a party 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
existence of any situation other than those to which the provisions of paragraphs 1(a) and 1(b) of
Article XXIII of GATT 1994 are applicable. Where and to the extent that such party considers and apanel determines that the matter is covered by this paragraph, the procedures of this Understanding
shall apply only up to and including the point in the proceedings where the panel report has been
circulated to the Members. The dispute settlement  rules and procedures contained in the Decision of
12 April 1989 (BISD 36S/61-67) shall apply to consideration for adoption, and surveillance and
implementation of recommendations and ru lings. The following shall also apply:
(a) the complaining party shall present a detailed justification in support of any argument
made with respect to issues covered under this paragraph;IP/C/W/124
Page 35
(b) in cases involving matters covered by this paragraph, if a panel finds that cases also
involve dispute settlement matters other than those covered by this paragraph, the panel shall
circulate a report to the DSB addressing any such matters and a separate report on matters
falling under this paragraph.IP/C/W/124
Page 36
ANNEX 4
Reports on Non-Violation Claims
Report of the Working Party, The Australian Subsidy on Ammonium Sulphate , adopted on
3 April 1950, BISD II/188;  a complaint that discontinuance of an Australian subsidy violated
Articles XI:1, III:2 and XVI of GATT or, in the alternative, nullified or impaired benefits accruing
under the Agreement.
Panel Report, Treatment by Germany of Imports of Sardines  ("Germany - Sardines "), adopted on
31 October 1952, BISD 1S/53;  a complaint that a new import duty and charge and the removal of
quantitative restrictions on one product whilst they were maintained on others violated Articles I:1
and XIII:1 or, in the alternative, nullified or impaired the benefit accruing under tariff concessions.
Panel Report, German Import Duties on Starch and Potato Flour  ("Germany – Starch "), noted on
16 February 1955, BISD 3S/77;  a complaint that certain import duties were not lowered in accordance
with promises made between the parties during negotiations.  The Panel considered the matter and
noted a satisfactory adjustment agreed bilaterally.
Panel Report, Uruguayan Recourse to Article XXIII ("Uruguayan Recourse") , adopted on
16 November 1962, BISD 11S/95;  a request under Article XXIII:2 that the Panel examine and report
on restrictive measures taken by fifteen contracting parties which created adverse trading conditions
for Uruguay.
Panel Report, EEC - Tariff Treatment on Imports of Citrus  Products from Certain Countries in the
Mediterranean Region  ("EEC - Citrus Products "), L/5576, dated 7 February 1985, not adopted;
claims that preferential tariff treatment was inconsistent with most-favoured-nation treatment under
Article I of GATT 1947 and did not conform to the exception in Article XXIV or, in the alternative,
that the treatment nullified or impaired benefits without violating the Agreement.
Panel Report, EEC - Production Aids Granted on Canned Peaches, Canned Pears, Canned Fruit
Cocktail and Dried Grapes  ("EEC - Canned Fruit "), L/5778, dated 20 February 1985, not adopted;
claims that production aids nullified or impaired tariff concessions without violating the Agreement.
Panel Report, Japan – Trade in Semi-Conductors ("Japan - Semi-conductors") , adopted on
4 May 1988, BISD 35S/116; complaint concerning an Arrangement concerning Trade in Semi-
conductor Products between Japan and the United States, claiming that certain third country
monitoring measures taken by Japan under the Arrangement led to dumping in third countries whichbreached Articles VI and XI of GATT 1947 and also Articles I and XVII; that certain other measures
favoured access to Japanese markets for US producers in contravention of Article I; that the measures
lacked transparency in contravention of Article X; and, in the alternative, that even if these measures
were consistent with the Agreement, that they nullified or impaired benefits accruing to the EEC
under the General Agreement and impeded the attainment of its objectives.
Panel Report, EEC – Payments and Subsidies Paid to Processors and Producers of Oilseeds and
Related Animal-Feed Proteins ("EEC – Oilseeds") , adopted on 25 January 1990, 
BISD 37S/86;  claim
of violation of national treatment obligation in Article III of GATT 1947 arising from payments to
seed processors conditional upon the purchase of domestic-origin oilseeds and claim of nullificationor impairment of tariff concessions granted pursuant to Article II of GATT 1947 as a result of the
introduction of production subsidy schemes.IP/C/W/124
Page 37
Panel Report, United States – Restrictions on the Importation of Sugar and Sugar-containing
Products Applied Under the 1955 Waiver and Under the Headnote to the Schedule of Tariffs
Concessions ("United States – 1955 Waiver"), adopted on 7 November 1990, BISD 37S/228; claims
concerning the consistency of fees on refined sugar with tariff concessions and the consistency of
import restrictions on sugar-containing products with Article XI and a waiver.
Report of the Members of the Original Oilseeds Panel, "Follow-up on the Panel Report 'EEC –
Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed
Proteins'" , DS28/R, dated 31 March 1992, BISD 39S/91.
Panel Report, Japan - Measures Affecting Consumer Photographic Film and Paper,  WT/DS44/R,
adopted on 22 April 1998; a complaint alleging that Japan's laws, regulations and requirementsaffecting the distribution, offering for sale and internal sale of imported consumer photographic film
and paper violated GATT Articles III and X, and alleging that these measures nullified or impaired
benefits accruing to the United States.  The Pane l found that the United States did not demonstrate
that the Japanese measures it cited nullified or impaired, either individually or collectively, benefits
accruing to it within the meaning of Article XXIII:1(b).
__________