The Limits of WTO Adjudication: Is Compliance the Problem?
Juscelino F. Colares
Case Western Reserve University - School of Law
Journal of International Economic Law, Vol. 14, No. 2, 403-36 (2011)
Abstract:
Mainstream international trade law scholars have commented positively on the work of World Trade Organization (WTO) adjudicators. This favorable view is both echoed and challenged by empirical scholarship that shows a high disparity between Complainant and Respondent success rates (Complainants win between 80 and 90 percent of the disputes). Regardless of how one interprets these results, mainstream theorists, especially legalists, believe more is to be done to strengthen the system, and they point to instances of member recalcitrance to implement rulings as a serious problem. This article posits that such attempts to strengthen compliance are ill-advised. After discussing prior empirical analyses of WTO adjudication involving primary rights and obligations under the WTO agreements (i.e. substantive adjudication), this article expands the empirical study into compliance disputes. It finds that ‘enforcement’ proceedings do protect the pro-free trade interests so overwhelmingly supported in substantive adjudication. Since that is the case, this article investigates the extent to which current levels of non-compliance might constitute a threat to this regime, and theorizes that the observed level is not only acceptable but a necessary feature of the system. I conclude by arguing that compliance-related issues must be viewed in a broader perspective that transcends narrow legalistic views and accounts for the multifaceted interests of, and differences among, WTO members.
Mainstream international trade law scholars have commented positively on the work of World Trade Organization (WTO) adjudicators. This favorable view is both echoed and challenged by empirical scholarship that shows a high disparity between Complainant and Respondent success rates (Complainants win between 80 and 90 percent of the disputes). Regardless of how one interprets these results, mainstream theorists, especially legalists, believe more is to be done to strengthen the system, and they point to instances of member recalcitrance to implement rulings as a serious problem. This article posits that such attempts to strengthen compliance are ill-advised. After discussing prior empirical analyses of WTO adjudication involving primary rights and obligations under the WTO agreements (i.e. substantive adjudication), this article expands the empirical study into compliance disputes. It finds that ‘enforcement’ proceedings do protect the pro-free trade interests so overwhelmingly supported in substantive adjudication. Since that is the case, this article investigates the extent to which current levels of non-compliance might constitute a threat to this regime, and theorizes that the observed level is not only acceptable but a necessary feature of the system. I conclude by arguing that compliance-related issues must be viewed in a broader perspective that transcends narrow legalistic views and accounts for the multifaceted interests of, and differences among, WTO members.
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2038445
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