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The appropriateness of retaliatory trade measures in the World Trade Organization dispute settlement process have increasingly come under scrutiny in recent years. Several Members and commentators alike have recommended large-scale amendments to the Dispute Settlement Understanding (DSU) to provide alternatives to retaliatory measures, with the most notable including compensation, collective retaliation, and increased special and differential treatment for developing countries and/or widespread loss of privileges for non-conforming respondents.

Unfortunately, many of the proposals failed to first identify the aims and objectives of the retaliatory phase, or even of dispute settlement more generally. This chapter takes a more holistic approach in its analysis of whether any of the current proposals will improve (or harm) the system. In doing so, this chapter will first assess the effectiveness and appropriateness of retaliatory trade measures by evaluating the goals and objectives in which it is designed to achieve. It will then evaluate some of the more prominent proposals for amending the DSU under the same framework. Taking such an approach will allow for a more comprehensive review and will reveal not only the problems with retaliatory trade measures, but also its positive aspects, and not only the positive aspects of the suggested alternatives but also where they may be detrimental to the system.

The WTO dispute settlement process is an improvement to the original GATT dispute settlement mechanism. However, it fails to assure a timely implementation and enforcement of the dispute settlement body (DSB) recommendations. To this date, the issue of mandatory enforcement is still open to interpretation. The number of ‘matters’ that have been subject to WTO dispute settlement stands at 266 over the 1995–2006 period. The number of implementation disputes has increased since 1998 and stand at 34 as of January 1, 2007. This chapter reviews the process of dispute settlements and enforcements since 1995 and to argue for the interpretation of ‘WTO agreements’ as ‘binding contracts’ whose breach must be evaluated as either ‘efficient’ or ‘non-efficient’ when discussing enforcement. In this context the non-compliance issue may be viewed as an ‘efficient breach’ where the only efficient remedy is a ‘fine’ rather than the usual practice of ‘suspension of concessions or other obligations’ to the Respondent. What sets our approach apart from earlier discussion is that it does not view ‘suspension of concessions’ as a sufficiently burdensome and efficient sanction. A ‘fine’ on the other hand may serve as a ‘buy out’ of a Respondents WTO obligations, and can be transferred to the negatively affected domestic producers in the Complainant's market as compensation for losses.

Beginning with the assumption that antidumping laws are used to address adverse shocks in import-competing industries, this chapter provides an explanation for the infrequent utilization of the Dispute Settlement Understanding under the Antidumping Agreement. It does so with a very simple model that represents the shock by a one-dimensional random variable. This is found on an interpretation of the ADA as a de facto escape clause. ADA signatories are homogeneous, which enables the representation of the expected frequency of shocks over each member's import-competing sectors by the binomial distribution with identical parameters. The explanation for the infrequency of utilization of the DSU invokes a repeated Prisoners’ Dilemma with two levels of cooperation in an infinite horizon game. The high level is free trade in all sectors. The low level is the application of ADA duties in sectors incurring the shock in a manner that is consistent with the ADA. The high level of cooperation in all sectors in every period is not sustainable for any degree of patience. A convex combination of the high and low levels of cooperation is sustainable for some degrees of patience under the folk theorem. However, this combination of cooperation is attainable only with the support of the DSU. The extent of importance of the DSU depends on the completeness of information with which signatories are endowed. With complete information, dispute resolution does not occur in equilibrium. However, its presence supports cooperation through its mandate to sanction retaliation. If filing were prohibitively costly, disputes would never arise, and cooperation would be expected to evaporate. In the instance of incomplete information with costless filing, disputes would occur in equilibrium whenever an AD action was taken. In the most realistic circumstance, that of incomplete information and nonprohibitive filing costs, disputes would arise only when the number of AD actions exceeded their (common) expectation. This provides a conceptual explanation for the observations of Tarullo (2002) and Bown (2005) that ADA disputes are infrequent.

Many functionalist models of international cooperation rely on punishment by states to enforce cooperation. However, the empirical record suggests that such state-based accounts offer an incomplete explanation of international trade cooperation. We argue that when theoretical approaches are adjusted to incorporate aspects of domestic politics and institutions, two key insights emerge. First, political pressure from domestic industries can be key in creating demand for violations of trade agreements. Since such pressure is affected by stochastic shocks, the temptation of leaders to commit trade violations can vary over time. The presence of a dispute settlement procedure (DSP) provides flexibility that allows leaders to respond to such pressure by occasionally committing violations and then compensating their trading partners, if the DSP finds that the violation was not subject to exceptions in the trading agreement. This flexibility enhances the willingness of leaders to sign cooperative agreements in the first place. Second, domestic politics can function as an enforcement mechanism for ensuring compliance with international trade agreements and DSP rulings. Voters can condition their electoral decisions on whether their leader complies with socially beneficial trade agreements. The DSP plays an important role in this account as an information-provider. For voters to hold their leaders accountable, they need information about what choices their leader has made and whether his actions constitute compliance with an international agreement. The DSP provides transparency and reduces uncertainty about these factors.

Among the primary suggestions for reform of the Dispute Settlement Understanding (DSU) of the WTO has been remedies for noncompliance. Prior literature has considered remedies in the context of deliberate breach of commitments. The WTO increasingly has, however, been negotiating commitments in subjective areas of policy. Thus, we provide a model of the DSU under which members' interpretations of concessions differ. This induces disputes regarding violation of commitments.

The Dispute Settlement Body (DSB) has promoted compliance primarily through authorization of retaliation (prospective punishment) after expiration of a reasonable period of time for the implementation of a verdict. As has been noted, this does not compensate a complainant for a violation of obligations and enables the respondent to circumvent punishment for imposing a cost upon a member of the WTO by reforming its offending policy reasonably promptly. We consider retrospective penalties (compensation for a loss) with and without reinforcement by retaliation as alternative enforcement mechanisms and find that a simple retaliatory punishment scheme is preferable. A penalty is unenforceable, as a member that is unwilling to reform its policy after an adverse judgment can decline to provide compensation. A penalty reinforced by retaliation can reduce compliance relative to a simple prospective punishment by raising the cost of abiding by the judgement.

Remedies also affect the negotiation of commitments. Members are more willing to make and less willing to accept unenforceable commitments. In this regard, the simple prospective punishment scheme is preferable.

We survey several of the theoretical models that have been applied to the analysis of the GATT/WTO dispute settlement process. These include repeated game models, which emphasize the punishment aspect of dispute settlement, and incomplete contracting models, which emphasize the “gap-filling” aspect. Our analysis emphasizes the implications of these models for the strengthening of the dispute settlement process under the WTO and for its application to the TRIPS agreement. We also discuss how models of settlement bargaining can be applied to obtain empirical predictions about which cases will actually proceed to an actual finding by the dispute panel.

Previous research on the success of the WTO dispute-settlement system may miscalculate the true benefits of the dispute process due to the nature of the datasets used. Approximately 33 percent of all disputes filed at the WTO are classified as pending or inactive and thus omitted from most studies. Further investigation reveals that many of these inactive cases were actually settled by the countries involved or considered in a similar WTO dispute, and, as a result, no further WTO action was taken. This suggests that the WTO dispute settlement process may be more effective in resolving disputes than otherwise thought. For those disputes not successfully resolved, I empirically estimate why countries may choose to initiate WTO dispute settlement action but fail to follow through, thus allowing the offending party to continue with the alleged WTO illegal activities. The results suggest that developing countries are less likely to resolve their complaints in the WTO dispute settlement system, a troubling implication for the equity of the system.

A somewhat underappreciated aspect of the burgeoning rush to regional trade agreements (RTAs) is a discrepancy between the dispute settlement procedure (DSP) embodied in the original World Trade Organization (WTO) Dispute Settlement Understanding (DSU) and that found in the language of many RTAs. This chapter explores the issue in the context of a dynamic repeated game of trade agreements. As is well known, the institutional alternatives available in negotiating multilateral freer trade agreements – regional agreements, side agreements, trade dispute settlement punishments, and so on – can proscribe the limits and shape the nature of self-enforcing trade agreements. Here, we suggest the extent to which deviations from the WTO DSP embodied in RTAs – for example, “private interest access,” “third party procedures,” and “choice of forum” – can not only work against the interests of “weaker parties” but furthermore undermine multilateral agreements closer to free trade.

A principle reason for the inability of the General Agreements on Tariffs and Trade (GATT) to serve as the vehicle for international trade liberalization was that it was the protocol for the establishment of the International Trade Organization. It was never intended to become a functioning institution. As such, it did not have a well-designed system for the settlement of trade disputes. At least partially because the GATT was not intended to function as an institution, an arguably excessive reliance on consensus emerged as the vehicle for the resolution of trade disputes. A consensus to accept the recommendations of a dispute panel became the standard for resolution under the GATT. Because the defendant could always object to implementation of the panel's recommendation, thus denying consensus, successful resolution of disputes were relatively infrequent. In the 47 years, during which the GATT was the principle international trade forum, 101 panel reports were adopted. Given that it is possible to file disputes on the basis of nullification and impairment of expected benefits, which is a considerably weaker standard than the allegation of a legal breach, it is apparent that the ineffectiveness of the dispute resolution mechanism was a deterrent to the filing of complaints. As the GATT increased in membership and pressures to address increasingly complex trade issues (intellectual property rights and agricultural subsidies, for example) emerged, it became apparent that the GATT could be undermined by an inability to resolve disputes.