5 - Retaliatory Measures

Summary

Chapter 5 is concerned with Articles 22.6 DSU and 4.10 SCM Agreement – namely, those provisions that allow one Member to bring retaliatory measures against another Member where that other Member fails to bring its measure into compliance with the covered agreement(s). The chapter argues that, although not reflected in current jurisprudence, there should be a need to demonstrate the causal link between a Member’s failure to bring its measure into conformity with a DSB ruling and the level of nullification or impairment incurred (that is, a causal link analysis). The chapter also raises parts of the jurisprudence that would seem to support a non-attribution analysis being used in this context, too. The chapter then puts forward the Non-attribution/Causal Link Analysis as one method for performing these analyses.