Non-Violations

The “non-violation nulli…cation 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, and identify two striking differences in the observed usage of non-violation claims relative to use of the more familiar violation claims. First, rulings on non-violation claims are rare in comparison to violation claims. And second, the success rate of those non-violation claims that are fi…led and ruled upon is very low compared to that of violation claims. We show that an extension of Maggi and Staiger (2011) can deliver differences in equilibrium usage of violation and non-violation claims that mirror these broad features. And we use the extended model to suggest that, even though non-violation claims are rarely observed and when observed are rarely successful, they can still serve a valuable (off-equilibrium) role in the GATT/WTO. Finally, our formal model abstracts from several broader issues associated with non-violation claims; we discuss a number of these at an informal level and suggest possible reforms of the non-violation clause and directions for further research. For example, we offer some possible reasons why non-violation claims should fail (or at least prove exceedingly difficult) when they concern matters within a class of issues that have been extensively negotiated, and when they concern various “non-commercial” and politically sensitive issues. Likewise, we suggest a possible rationale for allowing the protection for market access expectations associated with a negotiating round to “expire” with the passage of time.