WTO dispute settlement and the study of compliance

• Date: 21 September 2015
• Published date: 21 September 2015
• DOI: https://doi.org/10.1108/JITLP-10-2015-0032
• Pages: 112-115
• Author: Manfred Elsig
• Subject Matter: Strategy,International business,International business law

WTO dispute settlement and the

study of compliance

Manfred Elsig

World Trade Institute, University of Bern, Bern, Switzerland

Abstract

Purpose – The purpose of this research note is to draw on the concept of compliance as developed

in international relations theory to point to future avenues of research. It is widely understood that

the World Trade Organization (WTO) dispute settlement system has worked well in the past 20

years. Surprisingly, however, systematic research on compliance with WTO law is still in its

infancy.

Design/methodology/approach – The research note draws a distinction between rst-order and

second-order compliance and discusses limitations of existing work and possible ways forward.

Findings – This note suggests that more work, both conceptually as well as empirically, needs to be

carried out.

Originality/value – Very little systematic research has been carried out on compliance with WTO

law.

Keywords WTO, Compliance, Dispute settlement

Paper type Research paper

The debate on compliance with international law has attracted both lawyers and

political scientists. Henkin (1979) famously asserted in the late 1970s that “almost all

nations observe almost all principles of international law and almost all of their

obligations almost all of the time”. However, systematic data to back this claim

remain thin. It is virtually impossible to collect data on every state action that would

be judged as being in compliance with some form of international law. Even the

reverse of this situation (instances when states do not observe international law and

their actions are in contradiction with the obligations they have entered into) is

difcult to assess. Focusing on the World Trade Organization (WTO), there has

been a long-standing tradition by practitioners and law experts to suggest a

Henkin-type behaviour in the sense that states’ compliance would seem

overwhelmingly high in the area of multilateral economic relations (Wilson, 2007).

However, it is not that simple to establish sufcient evidence to back the argument

and repeating the claim does not make it factually truer. There are conceptual, but

even more so, empirical reasons for being cautious about jumping too quickly to

conclusions. The jury is still out on this matter.

The international relations literature provides us with an important conceptual

distinction that can be applied to the concept of compliance, namely, between rst-order

and second-order compliance (von Stein, 2012). Below, I discuss the challenges in the

study of both these types of compliance.

First-order compliance relates to whether states live up to their obligations,

whether they honour their promises made during international treaty-making and

whether their national policies and actions are in conict with these commitments.

The current issue and full text archive of this journal is available on Emerald Insight at:

www.emeraldinsight.com/1477-0024.htm

JITLP

14,3

112

Journalof International Trade Law

andPolicy

Vol.14 No. 3, 2015

pp.112-115

©Emerald Group Publishing Limited

1477-0024

DOI 10.1108/JITLP-10-2015-0032