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The Historical Origins and Practical Application of Non-Violation Complaint

Author: DanZuo
Tutor: LiuYaJun
School: Jilin University
Course: International Law
Keywords: Non-Violation Complaints Historical Origins Practical Application
CLC: D996.1
Type: Master's thesis
Year: 2011
Downloads: 40
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Abstract


Non-violation complaint is an important part in GATT/WTO dispute settlement system, which effectively protect the results reached in the bilateral or multilateral trade negotiations. The Concept of Non-Violation Complaints originated at the era of League of Nations, developed in GATT period and improved in WTO period. The development process of Non-Violation Complaints reflects the modern international society has been dedicated to seeking the establishment of rules-oriented international trading system.And the wide application of Non-Violation Complaints also has promoted the development and perfection of the international trade dispute settlement mechanism.This paper research into this special dispute settlement mechanism based on its historical origin and practial application.In the first chapter, the author expounds on the historical origin of Non-Violation Complaints.According to its developing characteristics, we can divide the historical origin of Non-Violation Complaints into five main stages.The first stage is the "equitable treatment clause" which appeared in the era of League of Nations. These treaty provisions sought to prevent the use of unregulated government actions to undermine the benefits of the agreements. The second stage is"Non-Violation Complaints" which appeared in the various bilateral trade agreements in the 1930s and 1940s. The specific language of the clauses used in these agreements was similar to the later formal Non-Violation Complaints. The third stage is Non-Violation Complaints which was drawn up in ITO Charter.The text representation of Non-Violation Complaints in ITO Charter was becoming more and more mature and received recognition of international deldgates.The fourth stage is Non-Violation Complaints provision of GATT 1947. In GATT era, Non-Violation Complaints begun to apply in practice field, and GATT 1947 Article XXIII:1(b) is still in use today. The fifth stage is Non-Violation Complaints in WTO legal system. Under legal framework of WTO, Non-Violation Complaints have specific procedural rules and the application scope enlarge to some other trade fields.The main content of the second chapter is about three main conditions for Successful Non-Violation Complaints. In this part, the author expounds on three main constitutions of Non-Violation Complaints and the practical application combined with related cases. Because there are no specific explaination about the constitutions of Non-Violation Complaints in GATT Article XXIII:1(b). We need to resort to the members’application and the related panel reports to understand these constitutions.This paper analyze the three constitutions conbining with cases and basing on the text meaning:1. the application by another contracting party of any measure, whether or not it conflicts with the provisions of this Agreement;2. If any contracting party should consider that any benefit accruing to it directly or indirectly under this Agreement；3. benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired......as the result of.......The main content of the third chapter is about the procedural rules of Non-Violation Complaints. There were no specific procedural rules of Non-Violation Complaints before WTO. Systematic procedural rules emerged in< Understanding on Rules and Procedures Governing the Settlement of Disputes> (DSU) as one of the Uruguay round results. Based on the Article XXVI:1 of DSU, this paper analyzes the proof burden and legal consequences of Non-Violation Complaints. In practical application, Violation Complaints and Non-Violation Complaints may occur in one case. This paper combined with specific case analyzes the trial problem when Violation Complaints and Non-Violation Complaints occur in the same case.The main content of the fourth chapter is about the practical problems of the enlargement application of Non-Violation Complaints. Under the legal system of WTO, the application of Non-Violation Complaints is not limited to the field of traditional international tarde in goods but also enlarge to some other WTO trade fields. The enlargement application of Non-Violation Complaints needs a long-term exploration and integration phase.This paper chooses the application problems of Non-Violation Complaints in GATS and TRIPS to analyze.

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