8 Yoshinori Abe
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.
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.
Thus, losing parties are obliged to comply with
the R&R of DSB within a reasonable period of time.
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.
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).
27 compliance panel reports and 18 compliance Appellate Body reports have been
adopted; retaliation has been authorized by DSB in nine cases.
This system ensures compliance with the DSBs 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.
In this regard, Fisher and Simmons
indicated the distinction between first-order and second-order compliance,
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.
INT’L 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.,
10 R. FISHER, IMPROVING COMPLIANCE WITH INTERNATIONAL LAW 28-29 (1981). See also B. Simmons, Compliance