Compliance With Adverse WTO (World Trade Organisaton) Rulings

Compliance With Adverse WTO (World Trade Organisaton) Rulings

Introduction

There has been a positive attitude of compliance by Member States of the WTO with adverse rulings. This article consists of an in depth discussion of Dispute Settlement System of World Trade Organisation analyzing and concluding that whether in reality the overall record of Members in complying with adverse WTO rulings has set a positive record or not.

Background

The purpose of World Trade Organisation (WTO) was to increase and facilitate trade between countries; its existence came into place to work better in practice then its predecessor GATT.[1] GATT 1947 was created as a result of pressure from developing countries to liberalize trade[2]. There was no international arrangement or treaty before that could address and resolve disputes the matters regarding trade relations amongst the nations[3].With due course of time, problems started arising as the Dispute Settlement System was not binding. The decisions taken were frequently being ignored by the GATT contracting parties[4].

WTO Dispute Settlement System

In order to cater for the complications posed in the GATT system, in 1995 WTO was created to provide a remedy and solutions to the problems faced by the member states. One of the major aims for the establishment of the WTO was, to create and guarantee an enhanced enforcement regime of the decisions of the panel and appellate body by the Member States[5].

According to Bossche (2008), “WTO possesses a remarkable system for the resolution of trade disputes between its Members”[6]. Member States of the WTO are required to ensure full compliance with the WTO decisions, thus compliance is the foundation of the entire WTO system[7]. The Dispute Settlement System of WTO is of utmost importance and is one of the key reforms, the WTO had introduced. It aims to solve the disputes, whereby member states effectively negotiate matters together with each other as stated in Article 3.7[8] of the DSU (Dispute Settlement Understanding)[9].

The Dispute Settlement System is governed by the Dispute Settlement Understanding (DSU) which ensures compliance of WTO Rulings by Member States[10].

Many changes were bought in the Dispute Settlement System. A Dispute Settlement Panel was created by the WTO and which abolished many old GATT practices. It also eliminated the practice of the panel report which could earlier be blocked by any of the parties to the dispute. It created an Appellate Body for the parties to bring about an appeal[11]. There were many complications with the old GATT 1947 Dispute Settlement System. According to Pfumorodze, the Dispute Settlement System was exclusively in hands of the parties[12]. There were only two Articles that dealt with the Dispute Settlement System, Article XXII[13] and XXIII[14] of the GATT 1947.Remedies provided seemed to be ineffective.[15]There was an urgent need to reform the Dispute Settlement System under GATT and so after a period of successful negotiations between members states a new body namely the World Trade Organisation was setup[16].

The WTO strengthened the Dispute Settlement System and reinforced the prevailing GATT codes[17]. The law under the GATT is similar and is retained in the WTO[18]. Implementation and enforcement of the rulings of WTO’s Dispute Settlement System is controlled and ensured by a body known as the DSB (Dispute Settlement Body)[19]. The main role of the DSB is to resolve disputes in accordance with the DSU covering all WTO Agreements.

One of the main purposes of the WTO was to strengthen the laws and regulations provided in by the GATT which would in turn ensure compliance by Member States. Compliance means that decisions taken by the WTO would be binding on member states whereas under the Dispute Settlement System of GATT decisions had no binding effect and thus were tend to be ignored[20].Under the DSU, WTO have settled that if any of the member states are in breach of trade regulations, there action will be challenged before a neutral panel[21]. The procedures and ruling adopted by the panel should be accepted and followed. Whenever, there is a dispute between Member States, there are three stages for it to pass through in order to be resolved[22]. The three stages are Consultation, Litigation and Enforcement. If the decision given by the panel is not welcomed by any of the Member States, they have the right to appeal. Such appeals are handled by the Appellate Body. The appellate body has the ultimate authority and can overturn the decisions of the panel[23]

There have also been measures to ensure compliance. For example previously with GATT 1947, there was no monitoring system in place that could ensure compliance of rulings. However there is now monitoring system in place since WTO came into existence.

One of the weaknesses of the WTO Dispute Settlement System which can be often seen is that high profile rulings are not complied or are ignored by important members of the WTO[24]. Key Players of WTO have often consumed a lot of time to comply to and implement an adverse ruling rendered by the WTO. An example of such a situation can be seen in the well-known Beef and Hormone[25]case of the EU and USA. This case was filed in 1996 by USA against EU and finally settled in 2009[26].

Adverse Rulings

WTO Adverse Rulings are such judgments or verdicts of the Panel or the Appellate Body are contrary to a Member States interests and still there are required to have compliance with that particular decision[27].Members States can appeal against the adverse decision[28] taken against them if they are not willing to comply and enforce the decision to the Appellate Body[29]. Princen suggests that where a formal ruling is delivered by the WTO panel compliance by member states is less likely to occur[30].

According to Pfumorodze, despite the fact that WTO has an obligatory and binding system still the enforcement mechanism of its rulings is very weak[31].

Article 19 of the DSU states that where the panel comes to a conclusion that the challenged measure is inconsistent with one of the WTO covered agreements, it will then recommend and ask the Member in concern to bring the measure in accordance with that agreement.[32] The panel time to time may also suggest ways to help the Member implement the panel’s recommendations the suggestions suggested by panel to member are not binding.[33]

The Member State has the right to appeal against the panel’s ruling to the Appellate Body.[34] Where the Member State chooses to file an appeal against the panel’s ruling, the Appellate Body may then reverse, modify or may still uphold the panel ruling[35].Thus applying the general rule that the DSB will adopt the Appellate Body’s report. On the other hand if the Member State is not willing to appeal, the DSB will accept and follow the panel’s report unless there is an agreement not to implement such a measure[36].

Once the DSB implements an adverse ruling, it is the duty of the defending Member State party to notify its implementation of compliance measures to the DSB[37]. If immediate compliance with the ruling is impossible for the Member State due to certain reasons, a reasonable time period is allotted for the implementation[38]. However still if the ruling has not yet been implemented after the completion of the reasonable period, Article 21.5 of the DSU allows the complainant party to enter into a negotiation and receive compensation in the form of trade concessions which may be reduced tariffs on trade products[39]. The panel has ninety days to submit its final report.

Compliance with Adverse Rulings

Member States have shown a positive record in complying with cases where violations of WTO have been found[40].

Davey asserts that the WTO has an excellent compliance record[41]. The overall compliance by all members has been around 80 %[42].Out of these nearly 60% have been prompt compliance that is either immediately or within the stipulated reasonable time.20% cases have involved significant delay of an average of 13 months. In 10% cases non implementation is admitted[43].

Compliance of adverse rulings

In order to evaluate the compliance rate of adverse rulings of the WTO, it is essential to consider the compliance rates of two main players and users of the WTO which are USA and European Union[44]. Record of complaints till 2010 shows that USA and European Union had been involved as respondents 181 cases which comprised for the total 43.2% of the cases[45]. There were 50 complaints which had direct involvement of European Union and the USA[46]. The main non-compliant has been the USA while EU along with Canada, Australia and Japan have delayed implantation[47]. Out of 33 a case in which there was adverse ruling, USA has complied in 26 cases while EC has good compliance record in 16 cases[48].

Compliance by Developing Countries

After the US and European Union, third major figure of the complaining and responding parties in WTO dispute is of the developing countries[49].Nevertheless, it is often believed that DSU mechanism favors, its influential and powerful Member States[50]. The overall representation of developing countries in the DSS of WTO, till 2010 has been about 102 cases as complaining parties and 87 cases as responding parties the WTO has initiated[51].

The figures suggest that participation of developing Member States in WTO DSS has not been a major problem. But this is just one side of the coin. Guzman and Simmons[52] have expressed two weaknesses of the DSS in terms of the participation of the developing countries and have categorized them as “capacity constraints” and “power constraints”[53].

There are many elements and causes that limit the capacity of developing countries to bring about a proceeding against the actions and conduct of the major players of the WTO like US and European Union to the panel or the Appellate Body[54].

Although after WTO 1995 came into force, as compared to GATT developing countries have been active participants in the disputes regarding trade issues, still the larger bench of cases and disputes is still occupied by the developed countries and the key major players apart from the

USA and European Union also are Canada, Brazil, Japan, Korea, Argentina[55]. Reasons of developing countries not having an active participation are the lack of resources and expertise available and finances for legal assistance required to the developing countries. The problems for participation of developing countries does not stop here, there are some other key issues involved as well. Roderick Abbott[56]has viewed the reasons for the reluctance of developing member countries to bring an action against developed member state countries of complains as they have a limited share in the export market in many circumstances there have duty free access to the major markets of these developing countries[57]. The developed countries have fared better even though their cases were fewer. Out of 21 cases only one has not been complied with.[58]

In order to assess the compliance of adverse rulings of WTO it is also useful to consider situations where one party is a developing country and the other is a developed country. For example, the case of Brazil’s against USA cotton subsidies (US – Upland Cotton)[59]. Brazil is a developing country whereas USA is a developed country. This case illustrates a good example of WTO’s DSS systemic abuse. When the dispute was on, the USA Congress eliminated certain cotton subsidies which are known as Step 2 payments and on the other hand gained DSU panel acknowledgement of the withdrawal of Step 2 payments and then ratified similar payments in the 2008 Farm Bill. The arbitrator declined Brazil allegation that the USA uncomplied and thus did not provide them with any remedy.[60]

By the look of statistics, compliance rates are believed to be going progressively.[61]But if we closely analyse the enforcement and compliance of adverse ruling of WTO mechanism the reality seems to be a little different.

Problems of Implementation

According to Plasai (2007) the system could be seen as weak as out of all the disputes brought before the WTO, only sixteen cases are subject to the compliance and remedy regime under Article 22.6 of the DSU with the majority of cases been resolved satisfactorily[62]. These noncompliance cases appear to remain in the status of non-compliance on a permanent basis. The responding parties in all these cases have yet to bring their WTO-inconsistent measures into full compliance. This is recognized as a system weakness within WTO that may eventually lead Members to ask whether the DSU compliance and remedy regime has added anything to the WTO dispute settlement mechanism. And are the fundamental concepts of WTO dispute settlement in need of re-examining in order to strengthen its compliance.[63]

The WTO Dispute Settlement Understanding is silent on the penalties for Members States when they accept trade obligations and later on do not comply which results in similar violations as those giving rise to the original dispute[64].

Improving Implementation through Reforming DSS Remedies

Davey (2009) recommends reforms that could possibly improve compliance in WTO dispute settlement system[65]. Though he recognized that the WTO dispute settlement system may have an admirable record overall, he suggested that there was still plenty of room for improvement in the quality and timeliness of compliance which currently exists. There have been serious concerns about the non-compliance and delays. This has been seen as one of the reasons for not using the WTO dispute settlement system. It raises alarms about future issues which could be serious[66]. Therefore some changes are required to improve the WTO dispute settlement system.

The compliance can be improved further if effective and deterrent disincentives confront the non-compliant members[67]. Although DSU provides for a good, almost judicial, mechanism for hearing and adjucation of infringement, it is logical to expect that those who evade adverse rulings would have to suffer adverse consequences.

The DSU does provide for certain remedies under the current system. The first one calls for removal of the infringement which caused the complaint (Article3.7).However exception to immediate withdrawal is granted (Article 21.3). A reasonable time has to be given if withdrawal is impractical. The reasonable time period is 15 months. This grant has been interpreted differently in different cases as guideline or a rule. It is also to be noted that the withdrawal of the offending measure does not entitle the aggrieved party to any compensation[68].

The other remedy is compensation, financial or grant of trade concessions. The third option is retaliation .These remedies have been rarely used. In any case they are supposed to be only temporary. A more important feature is that these remedies are prospective. It therefore provides an incentive for non-compliance[69].

It might also be useful to shift attention from big players like USA and EC to developing countries. They have a very small share in world trade but are home to the most deprived. Although in 2010 they moved more cases[70],most suffer from lack of manpower and financial resources to take full advantage of what WTO can offer. Most countries would be unable to offer effective retaliation; the reverse position in case they lose to a developed country would pose very difficult problems for them[71].A number of measures have been suggested to further improve compliance by modifying the implementation. To discourage noncompliance, Davey suggested substituting fines for retaliation, imposing retroactive implementation and making sanctions time related[72]. The developing countries perspective would be served if these include collective retaliation, the possibility of transferring retaliation rights, and retrospective monetary damages. Plasai (2007) has among other measures has recommended issuing binding orders by panels and appellate bodies, making reasonable time reasonable, adequate and multilateral surveillance of implementation and compliance[73].It was also advocated to make retaliation more balanced as well as provide more facilities for developing countries.

Conclusion:

The Dispute Settlement System under WTO has been seen and believed to be far more improved than its predecessor under the GATT.[74]To quite extent it is true that the claim made by Bruce Wilson about “the overall positive record of Members in complying with adverse WTO rulings” is largely correct.[75] This is achieved mainly because of the good faith desire of WTO members to see the dispute settlement system working effectively[76]Moreover the active users of this system appear to be both complainants and respondents repeatedly hence it is in their interest that the system functions effectively. The chairman[77]of the DSB reported that nearly 50% of all cases brought before WTO were resolved at a preliminary stage without going on to the adversarial stage of DSU. [78]

However it should be noted here that the Members especially those from developing countries should not become complacent. There are a number of areas which needs improvement within WTO Dispute Settlement System.[79]For example the remedies against non-compliance have to be strengthened and need to be made more stringent in order to make compliance even more effective and this will of course enhance and improve the overall record of members complying with adverse rulings. As discussed above another strong suggestion to take in account is that if fines can be substituted for retaliation and imposing the retroactive implementation can help achieve true goals of compliance with adverse ruling in order for it to work more effectively[80].

Bibliography

Primary Sources

Legislation

Article XXII of the GATT 1947.

Article XXIII of the GATT 1947.

Article 3.7 DSU (Dispute Settlement Understanding)

Article 19 DSU (Dispute Settlement Understanding)

Article 21.3DSU (Dispute Settlement Understanding)

Article 21.5DSU (Dispute Settlement Understanding)

Cases

Dispute DS26 European Communities — Measures Concerning Meat and Meat Products (Hormones)

US — Upland Cotton (4.11), WT/DS267/ARB/1, 31 August 2009

Secondary Sources

Judith Hippler Bello, ‘The WTO Dispute Settlement Understanding: Less is More’ 1996 The American Journal of International Law

Juan A. Marchetti and Petros C. Mavroidis, ‘The genesis of the GATS(General Agreement on Trade in Services)’(2011)EJIL

The WTO …Why it matters a Guide For Officials, Legislators, Civil Society and all those interested in International Trade and Global Governance Resource booklet for the 4th WTO Ministerial Conference

VirachaiPlasai, ‘Compliance and Remedies Against Non-Compliance Under the WTO System’ ICTSD Dispute Settlement and Legal Aspects of International Trade Issue Paper No. 3 (2007)

Peter Van Den Bossche, The Law and Policy of the World Trade Organisation: Texts, Cases and Materials(2ndedn, Cambridge University Press 2008)

S. Non-Compliance With WTO Rulings <http://trade.ec.europa.eu/doclib/docs/2003/october/tradoc_114065.pdf>

Department of International Economic Affairs, Compliance and Remedies Against Non-Compliance Under the WTO System: Towards A More Balanced Regime for All Members (ICTSD Dispute Settlement and Legal Aspects of International Trade Issue Paper No. 3, 2007)

SebastiaanPrincen, ‘EC Compliance with WTO Law: The Interplay of Law and Politics’ 2004 EJIL

Pfumorodze, ‘WTO remedies and developing countries’(2011) Journal of International Trade Law and Policy

Bruce Wilson, ‘Compliance by WTO Members with Adverse WTO Dispute Settlement Rulings: The Record To Date’, (2007) Journal of International Economic Law

A Guzman and B Simmons, “Power plays and capacity constraints” (May 2005)WAGE Conference

David J. Townsend and Steve Charnovitz,‘Preventing opportunistic uncompliance by the WTO members’ (2011) Journal of International Economic Law

Busch and Eric Reinhardt ‘Trade Brief on… The WTO Dispute Settlement’ Sida (2004)

Agah YF, ‘Analysis of dispute settlement developments in 2010’ (2011)
William J. Davey, ‘Implementation in WTO Dispute Settlement: An Introduction to the Problems and Possible Solution’ (2005) RIETI Discussion Paper Series 05-E-013

William J. Davey, ‘Compliance Problems in WTO Dispute Settlement’(2009) Cornell International Law Journal 119

Kara Leitner and Simon Lester, WTO dispute settlement 1995-2010 – a statistical analysis (2011) Journal of International Economic Law

European Centre for International Political Economy, Are Developing Countries Deterred from Using the WTO Dispute Settlement System? Participation of Developing Countries in the DSM in the years 1995-2005 (ECIPE Working Paper No.01/2007)

Brooks E. Allen, ‘Chapter 18 The Use of Non-pecuniary Remedies in WTO Dispute Settlement: Lessons for Arbitral Practitioners: ASA Performance as a Remedy’ LLC 2011

Noemi Gal-Or, ‘The Concept of Appeal in International Dispute Settlement’ (2008) European Journal of International Law Volume 19 No.1

Jeanne J. Grimmett, ‘WTO Dispute Settlement: Status of U.S Compliance in Pending Cases Congressional Research Service’,RL 32014

[1]Judith Hippler Bello, ‘The WTO Dispute Settlement Understanding: Less is More’ 1996 The American Journal of International Law

‹ http://www.jstor.org/pss/2204065 › accessed 14 November 2011

[2]Juan A. Marchetti and Petros C. Mavroidis, ‘The genesis of the GATS(General Agreement on Trade in Services)’(2011)EJIL ‹http://login.westlaw.co.uk/maf/wluk/app/document?&src=rl&srguid=ia744c09700000133fc558e7d263c32e7&docguid=I18391430F3BC11E08F2AC7B7402756BE&hitguid=I18391430F3BC11E08F2AC7B7402756BE&spos=263&epos=263&td=4000&crumb-action=append&context=12&resolvein=true › accessed 1 December 2011

[3]Peter Van Den Bossche, The Law and Policy of the World Trade Organisation: Texts, Cases and Materials(2^ndedn, Cambridge University Press 2008)

[4]The WTO …Why it matters a Guide For Officials, Legislators, Civil Society and all those interested in International Trade and Global Governance Resource booklet for the 4th WTO Ministerial Conference

<http://www.wto.org/english/thewto_e/minist_e/min01_e/wto_matters_e.pdf> accessed 27 November 2011

[5]VirachaiPlasai, ‘Compliance and Remedies Against Non-Compliance Under the WTO System’ ICTSD Dispute Settlement and Legal Aspects of International Trade Issue Paper No. 3 (2007)

[6]Peter Van Den Bossche, The Law and Policy of the World Trade Organisation: Texts, Cases and Materials(2^ndedn, Cambridge University Press 2008)

[7] U.S. Non-Compliance With WTO Rulings

<http://trade.ec.europa.eu/doclib/docs/2003/october/tradoc_114065.pdf>accessed 11 November 2011

[8] The aim of the dispute settlement mechanism is to secure a positive solution to a dispute. A solution mutually acceptable to the parties to a dispute and consistent with the covered agreements is clearly to be preferred.

[9]Peter Van Den Bossche, The Law and Policy of the World Trade Organisation: Texts, Cases and Materials(2^ndedn, Cambridge University Press 2008)

[10] Department of International Economic Affairs, Compliance and Remedies Against Non-Compliance Under

the WTO System: Towards A More Balanced Regime for All Members (ICTSD Dispute Settlement and Legal Aspects of International Trade Issue Paper No. 3, 2007)

[11]SebastiaanPrincen, ‘EC Compliance with WTO Law: The Interplay of Law and Politics’ 2004 EJIL < http://www.ejil.org/pdfs/15/3/361.pdf > accessed 11 November 2011

[12] J. Pfumorodze, ‘WTO remedies and developing countries’(2011) Journal of International Trade Law and Policy

<http://login.westlaw.co.uk/maf/wluk/app/document?&src=rl&srguid=ia744cc6400000133ff7ac560e775a8bc&docguid=I5FD5007090B511E0A969FC30EB7A21FE&hitguid=I5FD5007090B511E0A969FC30EB7A21FE&spos=34&epos=34&td=756&crumb-action=append&context=58&resolvein=true>Accessed 28 November 2011

[13] This Article dealt with consultations

[14] This Article dealt with nullification and impairement

[15] J. Pfumorodze, ‘WTO remedies and developing countries’(2011) Journal of International Trade Law and Policy

[16] J. Pfumorodze, ‘WTO remedies and developing countries’(2011) Journal of International Trade Law and Policy

[17]SebastiaanPrincen, ‘EC Compliance with WTO Law: The Interplay of Law and Politics’ 2004 EJIL

< http://www.ejil.org/pdfs/15/3/361.pdf > accessed 11 November 2011

[18]SebastiaanPrincen, ‘EC Compliance with WTO Law: The Interplay of Law and Politics’ 2004 EJIL

< http://www.ejil.org/pdfs/15/3/361.pdf > accessed 11 November 2011

[19] J. Pfumorodze, ‘WTO remedies and developing countries’(2011) Journal of International Trade Law and Policy

Accessed 28 November 2011

[20]The WTO …Why It Matters a Guide For Officials, Legislators, Civil Society and all those interested in International Trade and Global Governance Resource booklet for the 4th WTO Ministerial Conference

<http://www.wto.org/english/thewto_e/minist_e/min01_e/wto_matters_e.pdf> accessed 27 November 2011

[21]Department for Infrastructure and Economic Cooperation, Marc L.Busch and Eric Reinhardt ‘Trade Brief on… The WTO Dispute Settlement’ Sida(2004)

[22]Department for Infrastructure and Economic Cooperation, Marc L.Busch and Eric Reinhardt ‘Trade Brief on… The WTO Dispute Settlement’ Sida ( 2004)

[23]Department for Infrastructure and Economic Cooperation, Marc L.Busch and Eric Reinhardt ‘Trade Brief on… The WTO Dispute Settlement’ Sida(2004)

[24]SebastiaanPrincen, ‘EC Compliance with WTO Law: The Interplay of Law and Politics’ 2004 EJIL

< http://www.ejil.org/pdfs/15/3/361.pdf > accessed 11 November 2011

[25] Dispute DS26 European Communities — Measures Concerning Meat and Meat Products (Hormones) ‹http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds26_e.htm› accessed 4 December 2011

[26] Dispute DS26 European Communities — Measures Concerning Meat and Meat Products (Hormones) ‹http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds26_e.htm› accessed 4 December 2011

[27] Bruce Wilson, ‘Compliance by WTO Members with Adverse WTO Dispute Settlement Rulings: The Record To Date’, (2007) Journal of International Economic Law ‹ http://jiel.oxfordjournals.org/content/10/2/397.full.pdf+html › accessed 12 November 2011

[28]Article 17 DSU

[29]Brooks E. Allen, ‘Chapter 18 The Use of Non-pecuniary Remedies in WTO Dispute Settlement: Lessons for Arbitral Practitioners: ASA Performance as a Remedy’ LLC 2011‹ http://www.sidley.com/files/Publication/82968525-ac11-4ec3-b815-763a3d4208cc/Presentation/PublicationAttachment/380384cc-5395-4f87-ba8f-783138314c33/14%20Part%20IV%20Chapter%2018.pdf› accessed 18 November 2011

[30]SebastiaanPrincen, ‘EC Compliance with WTO Law: The Interplay of Law and Politics’ 2004 EJIL

< http://www.ejil.org/pdfs/15/3/361.pdf > accessed 11 November 2011

[31]J. Pfumorodze, ‘WTO remedies and developing countries’(2011) Journal of International Trade Law and Policy

http://login.westlaw.co.uk/maf/wluk/app/document?&src=rl&srguid=ia744cc6400000133ff7ac560e775a8bc&docguid=I5FD5007090B511E0A969FC30EB7A21FE&hitguid=I5FD5007090B511E0A969FC30EB7A21FE&spos=34&epos=34&td=756&crumb-action=append&context=58&resolvein=true Accessed 28 November 2011

[32] wto.org/English/docs_e/legal_e/28-dsu_e.htm#19

[33] wto.org/English/docs_e/legal_e/28-dsu_e.htm#19

[34]Brooks E. Allen, ‘Chapter 18 The Use of Non-pecuniary Remedies in WTO Dispute Settlement: Lessons for Arbitral Practitioners: ASA Performance as a Remedy’ LLC 2011‹ http://www.sidley.com/files/Publication/82968525-ac11-4ec3-b815-763a3d4208cc/Presentation/PublicationAttachment/380384cc-5395-4f87-ba8f-783138314c33/14%20Part%20IV%20Chapter%2018.pdf› accessed 18 November 2011

[35] Noemi Gal-Or, ‘The Concept of Appeal in International Dispute Settlement’(2008) European Journal of International Law Volume 19 No.1 ‹ http://ejil.oxfordjournals.org/content/19/1/43.full.pdf+html› accessed 2 December 2011

[36]Brooks E. Allen, ‘Chapter 18 The Use of Non-pecuniary Remedies in WTO Dispute Settlement: Lessons for Arbitral Practitioners: ASA Performance as a Remedy’ LLC 2011 ‹ http://www.sidley.com/files/Publication/82968525-ac11-4ec3-b815-763a3d4208cc/Presentation/PublicationAttachment/380384cc-5395-4f87-ba8f-783138314c33/14%20Part%20IV%20Chapter%2018.pdf› accessed 18 November 2011

[37]Jeanne J. Grimmett, ‘WTO Dispute Settlement: Status of U.S Compliance in Pending Cases Congressional Research Service’,RL 32014

[38]Jeanne J. Grimmett, ‘WTO Dispute Settlement: Status of U.S Compliance in Pending Cases Congressional Research Service’ RL 32014

[39]Brooks E. Allen, ‘Chapter 18 The Use of Non-pecuniary Remedies in WTO Dispute Settlement: Lessons for Arbitral Practitioners: ASA Performance as a Remedy’ LLC 2011 ‹ http://www.sidley.com/files/Publication/82968525-ac11-4ec3-b815-763a3d4208cc/Presentation/PublicationAttachment/380384cc-5395-4f87-ba8f-783138314c33/14%20Part%20IV%20Chapter%2018.pdf› accessed 18 November 2011

[40] Bruce Wilson, ‘Compliance by WTO Members with Adverse WTO Dispute Settlement Rulings: The Record To Date’, (2007) Journal of International Economic Law‹ http://jiel.oxfordjournals.org/content/10/2/397.full.pdf+html › accessed 12 November 2011

[41]William J. Davey, ‘Compliance Problems in WTO Dispute Settlement’(2009) Cornell International Law Journal 119 accessed 18 November 2011

[42]William J. Davey, ‘Implementation in WTO Dispute Settlement: An Introduction to the Problems and Possible Solution’ (2005) RIETI Discussion Paper Series 05-E-013 ‹http://www.rieti.go.jp/jp/publications/dp/05e013.pdf›accessed 2 December 2011

[43] William J. Davey, ‘Implementation in WTO Dispute Settlement: An Introduction to the Problems and Possible Solution’ (2005) RIETI Discussion Paper Series 05-E-013 ‹http://www.rieti.go.jp/jp/publications/dp/05e013.pdf› accessed 2 December 2011

[44]Bruce Wilson, ‘Compliance by WTO Members with Adverse WTO Dispute Settlement Rulings: The Record To Date’, (2007) Journal of International Economic Law ‹ http://jiel.oxfordjournals.org/content/10/2/397.full.pdf+html › accessed 12 November 2011

[45]Kara Leitner and Simon Lester, WTO dispute settlement 1995-2010 – a statistical analysis (2011) Journal of International Economic Law ‹ http://jiel.oxfordjournals.org/content/14/1/191.full.pdf ›accessed 21November 2011

[46]Some of these disputes involved other Members as well.

[47] William J. Davey, ‘Compliance Problems in WTO Dispute Settlement’(2009) Cornell International Law Journal 119 accessed 18 November 2011

[48] Bruce Wilson, ‘Compliance by WTO Members with Adverse WTO Dispute Settlement Rulings: The Record To Date’, (2007) Journal of International Economic Law ‹ http://jiel.oxfordjournals.org/content/10/2/397.full.pdf+html › accessed 12 November 2011

[49]Kara Leitner and Simon Lester, WTO dispute settlement 1995-2010 – a statistical analysis (2011) Journal of International Economic Law ‹ http://jiel.oxfordjournals.org/content/14/1/191.full.pdf ›accessed 21November 2011

[50] European Centre for International Political Economy, Are Developing Countries Deterred from Using

the WTO Dispute Settlement System? Participation of Developing Countries in the DSM in the years 1995-2005 (ECIPE Working Paper No.01/2007)

[51] Kara Leitner and Simon Lester, WTO dispute settlement 1995-2010 – a statistical analysis (2011) Journal of International Economic Law ‹ http://jiel.oxfordjournals.org/content/14/1/191.full.pdf ›accessed 21November 2011

[52] A Guzman and B Simmons, “Power plays and capacity constraints” (May 2005)WAGE Conference

[53] European Centre for International Political Economy, Are Developing Countries Deterred from Using the WTO Dispute Settlement System? Participation of Developing Countries in the DSM in the years 1995-2005 (ECIPE Working Paper No.01/2007)

[54]European Centre for International Political Economy, Are Developing Countries Deterred from Using the WTO Dispute Settlement System? Participation of Developing Countries in the DSM in the years 1995-2005 (ECIPE Working Paper No.01/2007)

[55]VirachaiPlasai, ‘Compliance and Remedies Against Non-Compliance Under the WTO System’ ICTSD Dispute Settlement and Legal Aspects of International Trade Issue Paper No. 3 (2007)

[56]European Centre for International Political Economy, Are Developing Countries Deterred from Using the WTO Dispute Settlement System? Participation of Developing Countries in the DSM in the years 1995-2005 (ECIPE Working Paper No.01/2007)

[57]European Centre for International Political Economy, Are Developing Countries Deterred from Using the WTO Dispute Settlement System? Participation of Developing Countries in the DSM in the years 1995-2005 (ECIPE Working Paper No.01/2007)

[58]William J. Davey, ‘Implementation in WTO Dispute Settlement: An Introduction to the Problems and Possible Solution’ (2005) RIETI Discussion Paper Series 05-E-013 ‹ http://www.rieti.go.jp/jp/publications/dp/05e013.pdf› accessed 2 December 2011

[59]US — Upland Cotton (4.11), WT/DS267/ARB/1, 31 August 2009

[60]David J. Townsend and Steve Charnovitz,‘Preventing opportunistic uncompliance by the WTO members’ (2011) Journal of International Economic Law ‹http://login.westlaw.co.uk/maf/wluk/app/document?&src=rl&srguid=ia744c09a000001341c0bf39bac116a0c&docguid=I4FDD4DB2C23A11E09F38D0360AEC7CB1&hitguid=I4FDD4DB2C23A11E09F38D0360AEC7CB1&spos=35&epos=35&td=1030&crumb-action=append&context=11&resolvein=true› accessed 3 December 2011

[61]Bruce Wilson, ‘Compliance by WTO Members with Adverse WTO Dispute Settlement Rulings: The Record To Date’, (2007) Journal of International Economic Law ‹ http://jiel.oxfordjournals.org/content/10/2/397.full.pdf+html › accessed 12 November 2011

[62]VirachaiPlasai, ‘Compliance and Remedies Against Non-Compliance Under the WTO System’ ICTSD Dispute Settlement and Legal Aspects of International Trade Issue Paper No. 3 (2007)

[63]VirachaiPlasai, ‘Compliance and Remedies Against Non-Compliance Under the WTO System’ ICTSD Dispute Settlement and Legal Aspects of International Trade Issue Paper No. 3 (2007)

[64]David J. Townsend and Steve Charnovitz,‘Preventing opportunistic uncompliance by the WTO members’ (2011) Journal of International Economic Law ‹http://login.westlaw.co.uk/maf/wluk/app/document?&src=rl&srguid=ia744c09a000001341c0bf39bac116a0c&docguid=I4FDD4DB2C23A11E09F38D0360AEC7CB1&hitguid=I4FDD4DB2C23A11E09F38D0360AEC7CB1&spos=35&epos=35&td=1030&crumb-action=append&context=11&resolvein=true› accessed 3 December 2011 accessed 3 December 2011

[65]William J. Davey, ‘Compliance Problems in WTO Dispute Settlement’(2009) Cornell International Law Journal 119 accessed 18 November 2011

[66]William J. Davey, ‘Compliance Problems in WTO Dispute Settlement’(2009) Cornell International Law Journal 119 accessed 18 November 2011

[67]VirachaiPlasai, ‘Compliance and Remedies Against Non-Compliance Under the WTO System’ ICTSD Dispute Settlement and Legal Aspects of International Trade Issue Paper No. 3 (2007)

[68] European Communities —Regime for the Importation, Sale and Distribution of Bananas—Recourse to Arbitration by the EC under Article 22.6 of the DSU, WT/DS27/ARB/ECU, 24 March 2000, para. 177 ‹http://www.worldtradelaw.net/reports/226awards/ec-bananas%28226%29%28ecuador%29.pdf› accessed 5 December 2011

[69] Department for Infrastructure and Economic Cooperation, Marc L.Busch and Eric Reinhardt ‘Trade Brief on… The WTO Dispute Settlement’ Sida(2004)

[70]Agah YF, ‘Analysis of dispute settlement developments in 2010’ (2011) ‹http://www.wto.org/english/tratop_e/dispu_e/speech_agah_4mar10_e.htm›accessed 7 December 2011

[71]Marc L. Busch and Eric Reinhardt, ‘ The WTO Dispute Settlement Mechanism and Developing Countries’ 2004 ‹ http://www9.georgetown.edu/faculty/mlb66/SIDA.pdf› accessed 17 November 2011

[72]William J. Davey, ‘Implementation in WTO Dispute Settlement: An Introduction to the Problems and Possible Solution’ (2005) RIETI Discussion Paper Series 05-E-013 ‹ http://www.rieti.go.jp/jp/publications/dp/05e013.pdf› accessed 2 December 2011

[73]VirachaiPlasai, ‘Compliance and Remedies Against Non-Compliance Under the WTO System’ ICTSD Dispute Settlement and Legal Aspects of International Trade Issue Paper No. 3 (2007)

[74]J. Pfumorodze, ‘WTO remedies and developing countries’(2011) Journal of International Trade Law and Policy

http://login.westlaw.co.uk/maf/wluk/app/document?&src=rl&srguid=ia744cc6400000133ff7ac560e775a8bc&docguid=I5FD5007090B511E0A969FC30EB7A21FE&hitguid=I5FD5007090B511E0A969FC30EB7A21FE&spos=34&epos=34&td=756&crumb action=append&context=58&resolvein=true Accessed 28 November 2011

[75]Bruce Wilson, ‘Compliance by WTO Members with Adverse WTO Dispute Settlement Rulings: The Record To Date’, (2007) Journal of International Economic Law ‹ http://jiel.oxfordjournals.org/content/10/2/397.full.pdf+html › accessed 12 November 2011

[76]Appellate Body 2007 Annual Report, supra note 21, at 42-47 (describing the way that repeat players use this system.)

[77] Ambassador Yonov Frederick Agah, the Chairman of the Dispute Settlement Body from 19 March 2010 to 24 February 2011.

[78]Agah YF, ‘Analysis of dispute settlement developments in 2010’ (2011) ‹http://www.wto.org/english/tratop_e/dispu_e/speech_agah_4mar10_e.htm›accessed 7 December 2011

[79]William J. Davey, ‘Implementation in WTO Dispute Settlement: An Introduction to the Problems and Possible Solution’ (2005) RIETI Discussion Paper Series 05-E-013 ‹ http://www.rieti.go.jp/jp/publications/dp/05e013.pdf› accessed 2 December 2011

[80] William J. Davey, ‘Implementation in WTO Dispute Settlement: An Introduction to the Problems and Possible Solution’ (2005) RIETI Discussion Paper Series 05-E-013 ‹ http://www.rieti.go.jp/jp/publications/dp/05e013.pdf› accessed 2 December 2011

The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which she might be associated.

Author: Zaineb Aumir