Recent Developments and Scholarship on WTO Enforcement Remedies

A country or customs territory joining the World Trade Organization (WTO) becomes bound by the set of rules applying to all Members and by its own singular set of concessions made in the course of WTO multilateral negotiations. Recognizing that WTO Member governments were going to have differences of opinion about the meaning of the rules and their application in particular circumstances, the WTO Agreement includes a dispute settlement understanding, known as the “DSU”. Compared to most other mechanisms for dispute settlement and/or compliance in multilateral treaties, the WTO’s DSU provides a potent combination of adjudicative procedures and enforcement tools. Under the adjudicative procedures, a WTO Member may lodge a complaint about whether another Member has violated a WTO rule, and this complaint will be examined by an independent panel. The panel’s report may be appealed to the Appellate Body. Whatever decision is reached will then be adopted by the WTO Dispute Settlement Body (DSB) unless there is a consensus to discard it. Although the DSU states that “prompt compliance with recommendations or rulings of the DSB is essential…”, the drafters recognized that compliance might not occur, and provided other resorts for complaining governments. According to the DSU rules, the “last resort” in the event of continuing non-resolution of a dispute is that the DSB will permit the complaining government to “suspend concessions or other obligations” vis-à-vis the scofflaw government…