Implementation System of the WTO Dispute Settlement Body: A Comparative Approach

Author:Yoshinori Abe
Position:Professor of International Law at Gakushuin University, Tokyo, Japan
Pages:7-28
SUMMARY

The implementation system of the recommendations and rulings of the Dispute Settlement Body is an important component of the WTO dispute settlement procedure. Where there is any disagreement between disputing parties as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings, a winning party may refer the matter to a compliance... (see full summary)

 
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Implementation of WTO DSB
7
VI JEAIL 1 (2013)
Yoshinori Abe
The implementation system of the recommendations and rulings of the Dispute
Settlement Body is an important component of the WTO dispute settlement
procedure. Where there is any disagreement between disputing parties as to the
existence or consistency with a covered agreement of measures taken to comply
with the recommendations and rulings, a winning party may refer the matter
to a compliance panel and the Appellate Body. If a losing party is found to have
failed to comply with the recommendations and rulings, DSB may authorize
the winning party to retaliate. This article analyzes the implementation system
of the WTO dispute settlement procedure in comparison with other systems of
󼚨second-order󼚩 compliance in international law. Also, attention will be directed
to the relationship between the WTO retaliation and countermeasures in general
international law. Countermeasures under the Agreement on Subsidies and
Countervailing Measures, in particular, have a legal nature akin to that of
countermeasures under the law of State responsibility.
Keywords
WTO Dispute Settlement, Second-Order Compliance, Compliance
Panels, Retaliation, Countermeasures, ILC󼚩s Articles on State
Responsibility
Implementation System
of the WTO Dispute
Settlement Body:
A Comparative Approach
Professor of International Law at Gakushuin University, Tokyo, Japan; B.A./M.A.(Tokyo), LL.M.(Cantab). This
paper is a revised piece of the research project “Implementation Issues in the WTO Dispute Settlement Procedure” at
the Research Institute of Economy, Trade & Industry. The author would like to thank Jeremy Yeo Shenglong for his
useful comments. The author may be contacted at: yoshinori.abe@gakushuin.ac.jp / Address: 1-5-1 Mejiro, Toshima-ku,
Tokyo 171-8588 Japan.
ISSUE FOCUS
2013-05-27 󱹙󲻹 2:18:11
8 Yoshinori Abe
I. Introduction
One of the most important features of the World Trade Organization (󼚬WTO󼚭)󼚩s
dispute settlement procedure is its implementation system through the
recommendations and rulings (󼚬R&R󼚭) of the Dispute Settlement Body (󼚬DSB󼚭).
According to the WTO Dispute Settlement Understanding (󼚬DSU󼚭), DSB adopts
panel and Appellate Body reports by negative consensus.
1
Where a panel or
the Appellate Body concludes that a measure is inconsistent with a covered
agreement, DSB recommends that 󼚬the Member concerned bring the measure into
conformity with that agreement.󼚭
2
Thus, losing parties are obliged to comply with
the R&R of DSB within a reasonable period of time.
3
Furthermore, where there is
any disagreement as to the existence or consistency with a covered agreement of
measures taken to comply with R&R, a winning party may refer the matter to a
compliance panel and the Appellate Body.
4
If the panel and the Appellate Body
find that a losing party has failed to comply with R&R, DSB may authorize the
winning party to suspend the application of concessions or other obligations under
the covered agreements to the losing party (so-called retaliation).
5
Despite some
criticisms,
6
     
7
To date,
27 compliance panel reports and 18 compliance Appellate Body reports have been
adopted; retaliation has been authorized by DSB in nine cases.
8
This system ensures compliance with the DSB󼚩s decisions, i.e., R&R. While
compliance in international law usually means behavior or a situation in conformity
with international obligations contained in treaties or customary international
law, the implementation of R&R concerns compliance with 󼚨secondary norms󼚩
promulgated by a dispute settlement body.
9
In this regard, Fisher and Simmons
indicated the distinction between 󼚨first-order󼚩 and 󼚨second-order󼚩 compliance,
10
1 DSU arts. 16.4 & 17.14.
2 Id. art. 19.1.
3 Id. art. 21.3.
4 Id. art. 21.5.
5 Id. arts. 22.6 & 22.7.
6 R. BABU, REMEDIES UNDER THE WTO LEGAL SYSTEM 220 (2012).
7 B. Wilson, Compliance by WTO Members with Adverse WTO Dispute Settlement Rulings: The Record to Date, 10 J.
INTL ECON. L. 399 (2007).
8 See Overview of the State of Play of WTO Disputes, WT/DSB/58/Add.1, at 139-146 (Nov. 30, 2012).
9 M. Bothe, Compliance, in 2 MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 530-531 (R. Wolfrum ed.,
2012).
10 R. FISHER, IMPROVING COMPLIANCE WITH INTERNATIONAL LAW 28-29 (1981). See also B. Simmons, Compliance
2013-05-27 󱹙󲻹 2:18:11

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