Non-infringement Violation

“Non-infringement Violation” is a lawyerly short phrase for Article XXIII of GATT 1994 or similar provisions in FTAs or bilateral investment treaties.

Article XXIII: Nullification or Impairment

1. If any contracting party should consider that any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired or that the attainment of any objective of the Agreement is being impeded as the result of

(a) the failure of another contracting party to carry out its obligations under this Agreement, or

(b) the application by another contracting party of any measure, whether or not it conflicts with the provisions of this Agreement, or

(c) the existence of any other situation,

the contracting party may, with a view to the satisfactory adjustment of the matter, make written representations or proposals to the other contracting party or parties which it considers to be concerned. Any contracting party thus approached shall give sympathetic consideration to the representations or proposals made to it.

Keywords are “benefit,” “indirectly,” “nullified or impaired,” “any objective of the Agreement,” and “the existence of any other situation.”

This provision defines (or intends to define to no avail) the scope of cause of action under the WTO. A government might stretch this provision quite broadly and may bring to the Dispute Settlement Body any dissatisfaction with another governmental or non-governmental action that nullifies or impairs the plaintiff’s objective (whatever that means) of the Agreement.

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