Introduction

A significant number of prominent WTO disputes, including EC – Hormones, US – Shrimp and US – Foreign Sales Corporations, have raised questions over state sovereignty in exercising control over important matters. Both anti-globalisation advocates and hard-core free traders often blame the WTO dispute settlement system for allowing its actors, especially the WTO Appellate Body, to allegedly go beyond their mandate and create new rules rather than applying existing ones. The US – Gambling dispute between the tiny Caribbean island nation of Antigua and Barbuda (Antigua) and the United States involved sovereignty-related issues over the extent the WTO judiciary may ‘interfere’ with US perceptions of public order and morality. However, this dispute points to further aspects affecting national autonomy and the reach of international obligations, which are this chapter's focus. The continued US failure to comply with the recommendations and rulings of the Dispute Settlement Body (DSB) has led to arbitration over Antigua's right to retaliate by suspending its obligations under the TRIPS Agreement in order to induce compliance. Rather than discussing the technical details of cross-retaliation, I focus on the sovereignty aspects this type of retaliation raises. To what extent can the WTO dispute settlement system provide trade heavyweights and small economies with an effective mechanism to enforce international obligations under WTO law? Does the notion of suspending intellectual property (IP) protection give developing countries an effective tool, given the economic importance IP has for most industrialised economies?