Trade Retaliation in WTO Dispute Settlement: A Multi-disciplinary Analysis

Joost Pauwelyn, THE LAW, ECONOMICS AND POLITICS OF RETALIATION IN WTO DISPUTE SETTLEMENT, Chad P. Bown, ed., Cambridge University Press, 2009

20 Pages Posted: 25 Feb 2011 Last revised: 21 Dec 2018

See all articles by Chad Brown

Chad Brown

Western Michigan University Thomas M. Cooley Law School

Joost Pauwelyn

Graduate Institute of International and Development Studies (IHEID); Georgetown University Law Centre

Date Written: 2009

Abstract

It is hard to think of a better topic for multi-disciplinary study than trade retaliation in the WTO. When a country violates WTO rules, the remedy of last resort is bilateral, state-to-state trade sanctions. Such trade sanctions are imposed against the violating country by one or more other WTO members that took the initiative to challenge the breach.

WTO retaliation must, however, be multilaterally authorized by the WTO following, first, an elaborate procedure establishing (continued) breach in the first place and, second, an arbitration on whether the retaliation is 'equivalent' or 'appropriate' in light of the harm caused by the original violation.

This is where the law comes in: Arbitrators must apply legal criteria to assess the harm caused by a WTO violation, select benchmarks and counterfactuals to do so, as well as decide, where requested, on whether the conditions for so-called cross-retaliation are met (that is, retaliation in the form of, for example, suspending intellectual property rights in response to a WTO-inconsistent import restriction).

This process obviously involves economics as well, both economic theory (what is the role of violation-cum-retaliation in an incomplete contract?; what is the optimal design of remedies for breach of contract?) and applied or quantitative economics (how does one calculate lost trade, lost royalties or other economic harm caused by a WTO violation?; how does one make sure that the retaliation in response is 'equivalent'?).

Finally, the design, implementation and effectiveness of WTO retaliation is deeply political, ranging from the decision of whether to retaliate in the first place (especially salient in developing countries) to selecting specific products to retaliate against (e.g. with a view to compensate or protect domestic, import-competing industries at home, say, Mexico keeping out US corn syrup to please Mexican cane sugar producers; or, alternatively, to exert maximum political pressure in the violating country, say, the EC restricting Florida orange juice to affect US President Bush’s re-election chances in 2004).

Keywords: WTO, International Trade Law, Retaliation

Suggested Citation

Brown, Chad and Pauwelyn, Joost, Trade Retaliation in WTO Dispute Settlement: A Multi-disciplinary Analysis (2009). Joost Pauwelyn, THE LAW, ECONOMICS AND POLITICS OF RETALIATION IN WTO DISPUTE SETTLEMENT, Chad P. Bown, ed., Cambridge University Press, 2009, Available at SSRN: https://ssrn.com/abstract=1768128

Chad Brown

Western Michigan University Thomas M. Cooley Law School ( email )

300 S. Capitol Avenue
P.O. Box 13038
Lansing, MI 48901
United States

Joost Pauwelyn (Contact Author)

Graduate Institute of International and Development Studies (IHEID) ( email )

PO Box 136
Geneva, Geneva CH-1211
Switzerland

HOME PAGE: http://graduateinstitute.ch

Georgetown University Law Centre ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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