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21 - Problems with the compliance structure of the WTO dispute resolution process

Published online by Cambridge University Press:  02 September 2009

Daniel L. M. Kennedy
Affiliation:
University of Minnesota
James D. Southwick
Affiliation:
University of Minnesota
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Summary

The crown jewel of the Uruguay Round is the Dispute Settlement Understanding (DSU). The DSU, it is generally argued, brings quasi-juridical order to the General Agreement on Tariffs and Trade (GATT) regime maintenance system. Several recent World Trade Organization (WTO) dispute settlement cases, however, have highlighted structural tensions within this dispute settlement system that have the potential to gradually undermine many of the substantive obligations contained in the WTO Agreements. The problems can be classed in three dovetailing categories: a lack of incentives for swift compliance, a lack of viable alternatives to trade sanctions, and a lack of consideration for the impact of the remedies on private actors. The first two are carrot and stick problems, and highlight the need for further streamlining of the DSU process – even beyond the recent proposals by some of the Members. Effective reform will require the Members to rethink the timelines and ensure that governments which forestall compliance feel the true cost of the delay. The third, however, is a prospective problem, and cautions us against forgetting the vital need for flexibility in a supranational organization with such a diverse membership as the WTO. Not only must these problems be addressed, but the tensions between them reconciled before the DSU can fully underpin the WTO Agreements.

The first problem, the lack of incentives for swift compliance, can be seen by tracking the progress of a case along the existing DSU timeline.

Type
Chapter
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The Political Economy of International Trade Law
Essays in Honor of Robert E. Hudec
, pp. 636 - 645
Publisher: Cambridge University Press
Print publication year: 2002

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