University of Helsinki, Helsinki 2006
WTO Dispute Settlement System and the Issue of Compliance:
Perspective in Remedies Against Non-Compliance
Yenkong Ngangjoh Hodu
Doctoral dissertation, September 2006.
The resolution of international trade disputes by World Trade Organization (WTO) Dispute Settlement System (DSS) has attracted much attention in recent years, not only among trade officials and scholars but also among the public at large. As part of international law, the rules of the WTO are required to govern a fundamentally different society than that which exists within the state. Therefore, the nature of the remedies available for breach of a legal duty is of central interest in the WTO treaty system. As the Latin maxim Ubi jus, ibi remedium suggests, there is a close nexus between the law provided by a particular regime and remedies for violation of the rights and obligations of that regime. Although, theoretically speaking, apart from specific remedies, different factors may be identified which support the arguments as to why the community of nations complies with the rules of a particular regime such as the WTO, the remedies provided by the WTO DSS still represent a sort of institutional guarantee that the WTO treaty system is respected. The fact that there is a nexus between the law of an institution and remedies means that there is a degree of deficiency, or a lacuna, when no remedies exist.
Yet, at a time of general rededication to the WTO Dispute Settlement Understanding as 'a central element in providing security and predictability' to the institutional structure that emerged at the end of the Uruguay Round of Multilateral Trade Negotiations (MTN), the remedies it provides in order to guarantee compliance with the rules of the system are increasingly greeted with scepticism, both by commentators and by some academics who see the WTO as part of the uneven project of globalization. While the WTO DSS allows Members to provide temporal compensation when immediate compliance is not practicable, or to retaliate (suspend concessions or other obligations, in the language of the DSU) when there is continuous failure to comply, compliance is the primary objective of the system. Recently, some mainstream arguments critically suggest that these remedies are flawed and that more coercive options are required. Some of the critical arguments linked to the concept of sovereignty suggest that the WTO DSS should be avoided altogether, at least for certain sensitive disputes. At the same time, others argue that because of the differences in size of the WTO Memberships, the DSU should be amended so that countries may be able to trade their retaliatory rights once there is a continuous non-compliance with an adopted dispute settlement report.
While some of the critical arguments directed against the compliance regime of the WTO DSS may have bite, from a general perspective, this book argues that the system should be lauded for the number of cases that have successfully gone through it, and for the contributions the panels and Appellate Body (AB) jurisprudence have made to the development of international law. Specifically, in addressing a range of issues, including those mentioned above, the present studies seek to provide insights into the remedies available for non-compliance with legal obligations in WTO law. Though my inquiry here aims at enriching our understanding of certain positive parts of the present system of settling international trade disputes, the writing discusses the possible arguments that may be raised to support alternative remedies that address the issue of continuous breach of legal duties in the WTO. Meanwhile, the studies also seek to contribute to our understanding of certain legal questions which have generally been ignored in the settlement of international trade disputes; and it acknowledges the scepticism of some Members regarding these questions. The method employed in this work is based on a combination of WTO case law, legal doctrines and some economic concepts.
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© University of Helsinki 2006
Last updated 28.06.2006