248. The possibility of bringing complaints on otherwise GATT-consistent measures was introduced into the GATT 1947 to address situations where the concessions or benefits obtained in a tariff negotiation could be easily frustrated by non-tariff measures, such as domestic subsidies, that the GATT 1947 did not regulate. As the original GATT did not require Contracting Parties to make substantive commitments on many such non-tariff measures, non-violation complaints were introduced as a remedy that could address any impairment of the benefits of tariff concessions as a result of such measures.
249. Thus, the basic function of Article XXIII:1(b) was to protect expectations that arose out of tariff concessions negotiated by parties to the GATT. It was to ensure that a GATT Contracting Party could obtain compensation, or a right to the compensatory or retaliatory withdrawal of concessions, where another Contracting Party introduced a measure subsequent to the negotiation of a tariff concession that frustrated the achievement of those concessions. In effect, non-violation complaints are a fall-back remedy designed to prevent circumvention of GATT obligations through measures that are not themselves GATT-inconsistent. We should however note that the non-violation remedy is an "exceptional" remedy. There has been no successful recourse to the non-violation remedy in any of the WTO disputes in which Article XXIII:1(b) has been invoked. In over 70 years of the existence of multilateral trading system, reports were adopted by the GATT Contracting Parties in only the remaining three out of the eight cases. Even in those disputes in which non-violation complaints have been successful, there was agreement by the parties involved that it was an exceptional remedy to which "a cautious approach" should be taken.
250. This experience with non-violation complaints in GATT/WTO jurisprudence suggests that the evolution of the multilateral trading system, and the expansion in the provisions of WTO Agreements regulating non-tariff measures, may have had the effect of making non-violation complaints largely redundant as a remedy. Nonetheless, my delegation is not a proponent of the application of NVSCs and the proponents of the application of such complaints under the TRIPS Agreement have not provided concrete examples of the kind of scenarios under which an otherwise TRIPS-consistent measure would impair or nullify benefits beyond those arising from the obligations set out in the Agreement. Thus, as we previously suggested, it may be useful to clarify what situations proponent Members wish to avoid by having a non-violation remedy available under the TRIPS Agreement and, on the other hand, to ensure that a non-violation remedy in the TRIPS context would not be so broad as to have the effect of expanding the existing TRIPS obligations.
