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In the thirty cases that have led to the adoption of dispute settlement reports in the World Trade Organization (WTO), the enforcement tool of last resort-countermeasures-has been invoked five times.1 This number is more-in five years-than in the forty seven-year history of the General Agreement on Tariffs and Trade (GATT), the WTO's predecessor.2 In addition, on six occasions WTO members have invoked the expedited procedure to solve disagreements concerning compliance with dispute settlement reports, a procedure newly introduced with the establishment of the WTO.3 In another case, compliance procedures are looming.4
This relatively frequent recourse to countermeasures and compliance procedures suggests that the practical enforcement of WTO rules through dispute settlement may be too arduous. The time is ripe for a critical review of the WTO dispute settlement system, especially its enforcement mechanism and the remedies it provides.
The first section of this Note summarizes how WTO rules and dispute settlement reports are enforced. The second section critically examines from a more general perspective the WTO regime of countermeasures and enforcement. The argument is that WTO rules should be considered as creating international legal obligations that are part of public international law, and that a more collective and effective enforcement mechanism, one aimed at inducing compliance, is required. The third section sets forth further suggestions for improving the practical enforcement of WTO rules. The Note ends on a word of caution.
1. HOW ARE WTO RULES AND DISPUTE SETTLEMENT REPORTS ENFORCED?
WTO rules are enforced through a WTO-specific dispute settlement system. This system is governed by the Understanding on Rules and Procedures Governing the Settlement of Disputes, or DSU,5 one of the cornerstones of the 1994 Marrakech Agreement Establishing the WTO. The quasi judicial leg of this dispute settlement mechanism-to which all WTO members can have automatic recourses6-consists of ad hoc three- or possibly five-member panels and a standing Appellate Body. They issue reports with findings and recommendations on a dispute. In order to obtain legal status, these reports are referred to, and need to be adopted by, the WTO's dispute settlement body (DSB), a one-member-one-vote political organ.
The adoption of the DSU brought about a legal revolution. Moving from one step to the next in the process no longer requires-unlike the GATT-the consensus of...