Non-Violations

Robert Staiger and Alan O. Sykes

Journal of International Economic Law, 2013, vol. 16, issue 4, 741-775

Abstract: The 'non-violation nullification or impairment' doctrine is among the more unique and perplexing features of WTO law. We examine the scope and application of the non-violation doctrine in the GATT/WTO. Observed cases raising non-violation claims are relatively uncommon, the non-violation claims that are observed are usually not adjudicated, and those that are adjudicated are unsuccessful in a relatively high percentage of cases. This article offers a number of reasons for the relatively modest (observed) role of the non-violation doctrine over the history of the GATT/WTO system. We report the results of a formal model developed in a companion paper, which can deliver differences in equilibrium usage of violation and non-violation claims that mirror these broad features. We note that although non-violation claims are not often observed and when observed are less successful, they can still serve a valuable role in the GATT/WTO, owing in part to their 'off equilibrium' effects. We develop a range of other considerations informally, which further help to explain the limited role of non-violation claims in the system and hint at some possible reforms to clarify its proper scope. The Author 2013. Published by Oxford University Press. All rights reserved., Oxford University Press.

Date: 2013
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