The Non-violation Complaint In GATT/WTO Dispute Settlement Mechanism

Non-violation complaint has long been a controversial issue in GATT/WTO dispute settlement mechanism. The contracting parties established the system with the expectation that non-violation complaint would fill the vacancy of the substantial law with its procedural rules. Thus the members'legitimate expectations of benefits from tariff concession would not be nullified or impaired by the measures not inconsistent with the GATT provisions of other members. The fundamental purpose of the system was to protect the balance of concessions under GATT.Should it be continued or abolished? Should it be limited or expanded? The argument on non-violation complaint has never stopped for the past 60 years. The restrictionism holds that the non-violation remedy should be applied with caution. With the completion and perfection of the WTO substantive law and the development of the legal interpretation skill, there is no necessary to maintain this system. The positivism holds that the function to protect the concession balance of non-violation complaint is irreplaceable. With the multilateral trading system entering WTO era, non-violation complaint is sure to expand its application to new areas.What is non-violation complaint? Where does it derive? What does it distinguish with violation complaint? How does it operate in dispute settlement mechanism? What are the defects of it? What shall we do to optimize and develop it? How can China utilize the non-violation complaint to our advantage? The thesis will discuss the above questions.The first chapter gives an overview of non-violation complaint. Starting from GATT1947 Article 23, the chapter elaborates the difference between the violation complaint and non-violation complaint; introduces the development history of non-violation complaint and its practice in GATT/WTO dispute settlement. The second chapter analyzes the legal elements and burden of proof, on the basis of panel/working reports. The third chapter analyzes non-violation complaint in aspects of its pursuit and value, legal principle, political and economic background as well as its defects. The fourth chapter explores the expansion of non-violation complaint in GATS and TRIPS; the risks of independent-mode non-violation complaint to GATT/WTO dispute settlement mechanism; and suggests that rules and substantive laws should go ahead and better control the expansion of the non-violation complaint. In the conclusion, proposals are made to China, including furthering non-violation case study, standing for restrictionism, taking active part in rule making, so as to protect the competitive edge of our products in the international market.