Compliance Proceedings Under Article 21.5 of DSU and DOHA Proposed Reform

Abstract

Over the past years of dispute settlement practices, an Article 21.5 proceeding has become one of the pillars in the enforcement process and of vital interests for Members. The purpose of this paper is to address legal issues of DSU Article 21.5 compliance proceedings in the terms of current case law and the proposed reform in the context of Doha Round. For the most part, the procedure set forth in proposed Article 21 bis reflects, to a large extent, the current practice under Article 21.5. Probably the most significant change is the resolution of the sequencing issue of Article 21.5/22, which the complainant may only request the DSB authorization to retaliate after Article 21.5 proceedings find that the respondent has failed to bring the measures found to be WTO-inconsistent into compliance with the WTO Agreement. In addition, the proposal for the termination of retaliation measures through Article 21.5 proceedings may have important practical implication. Dealing with the questions of consultation and appeal on the basis of expedited process will also help to prevent the undue delay in the implementation phase of dispute settlement.

Keywords: WTO, DSU, Article 21.5, dispute settlement, implementation, compliance procedure, sequencing, Doha Round