WTO Enforcement Issues

In theory, the WTO dispute settlement system is expected, via an elaborate system of sequential legal maneuvers to ensure the implementation of the dispute settlement body (DSB) recommendations. In reality when trade issues rise above some critical threshold to a respondent, the theory behind the DSU enforcement breaks down and the well meaning legal system only leads to prolonging the dispute rather than resolving it. Since 1995, more than 300 complaints have been filed through the WTO dispute settlement system. In most cases, the parties reach a mutually satisfactory solution in accordance with the WTO Agreements through consultations without having recourse to the panel and Appellate Body review. When the consultation process fails the resulting process of Panel reports and Appellate Body reports result in a removal or modification of the violating measures. In those cases where there is no removal or modification of the violating measures, the period of non-compliance tends to be very long and leads to core questions about the true intent of the DSU. In particular, was the DSU designed to ensure a legal process for the settlement of a dispute and to recommend a remedy to the offending violation but was not designed to secure compliance.

The intent of this paper is to show that this is indeed the case. Moreover, if one treats the WTO as a contract, then the non-compliance issue may be viewed as an `efficient breach' and the only efficient remedy is a`fine' rather than the usual practice of suspension of concessions or other obligations to the offending Member. Under our suggested enforcement rules, it may be possible for a Member to continue to breach her obligation to the WTO contract while simultaneously compensating for damages created by the offending measure. The end result will be more efficient than the current system of diplomatic maneuvering designed to pressure the Member to remove or modify the offending measure.