Document YG1zGrVowjaGLQMm54dDX4bDn

Page 46 it is not possible to claim "legitimate expectations" with respect to a measure taken to protect human life or health, which can be justified under Article XX(b) of the GATT 1994. Such measures are, the European Communities asserted, excluded from the scope of Article XXIII:1(b) _ [FN183] *51 183. Before examining the substance of Canada's claim under Article XXIII:1(b) of the GATT 1994, the Panel first considered, and rejected, both of these preliminary objections raised by the European Communities, and found., as a consequence, that Canada could invoke Article XXIII:l(b) in respect o the measure. [FN184) The European Communities appeals the Panel's findings and conclusions relating to the two preliminary objections. 184. Before considering this aspect of the appeal, we note that the Panel went on to examine the substance of Canada's claim under Article XXIlI:l(b) end concluded that Canada had not established "the existence of nullification or impairment of a benefit within the meaning of Anticle XXIII:1(b) of the GATT 1994 as a result of the application of the measure". [FNJ185] We note also that this ultimate conclusion by the Panel has not been appealed by either party. Accordingly, we addsress only the two narrow issues that have been appealed by the European Communities, and we will not address any other aspects o the Panel's findings under Article XXIII:1(b) of the GATT 1994. 185. This appeal is our first occasion to examine Article XXIII:1 (to) of the GATT 1994. For this reason, before turning to the appeal by the European Communities, it seems to us useful to make certain preliminary observations about the relationship between Articles XXIII:1(a) and XXIII:1(b) of the GATT 1994. Article XXIII:1(a) sets forth a cause of action for a cl_aim that a Member has failed.to carry out one or more of its obligations under thxe GATT 1994. A claim under Article XXIII: 1(a), therefore, lies when a Member is alleged to have acted inconsistently^ with a' provision of the GATT 1994. Artd_cle XXIII -.1(b) sets forth a separate cause of action for a claim that, through the application of a measure, a Member has "nullified or impaired" "benefits" accruing to another Member, "whether or not that measure conflicts with the provisions" of the GATT 1994. Thus, it is not necessary, under Article XXIII: 1(b), to establish*, that the measure involved is inconsistent with, or violates, a provision of the GATPT 1994. Cases under Article XXIII:1 (to) are, for this reason, sometimes described as " non-violation" cases; we note, thought, that the word "non-violation" does not appear in this provision. The purpose of this rather unusual remedy was described by the panel in European Economic Commuraity - Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins ("EEC - Oilseeds") in t he following terms: The idea underlying [the provisions of Article XXIII: 1(b)] is that the improved competitive opportunities that can legitimately be expected from a tariff concession can be frustrated not only by me asures proscribed by the General Agreement but also by measures consistent with that. Agreement. In order to encourage corxtracting 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. [FN186] (emphasis added) *52 186. Like the panel in Japan - Measures Affecting Consumer Photographic Film and Paper ("Japan - Film"), we consider that the remedy in Article X3CIII:l(b) "should be approached with caution and should remain an exceptional r-emedy". [FN187] That panel stated: Although the non-violation remedy is an important and accepted tool of WTO/GATT dispute settlement and has been "on the books" for almost 50 years, v^e note that there have only been eight cases in which panels or working parties h>.ave substantively considered Article XXIII:1(b) claims. This suggests tha.t both the GATT contracting parties and WTO Members have approached this remedy with caution and, indeed, have treated it as an exceptional instrument of dispute settlement. We note