3 - Extrapolating purpose from practice: rebalancing or inducing compliance

Summary

Scholars continue to debate over the aim of WTO remedies in light of the ambiguity of the legal texts. As Joost Pauwelyn writes, the goal of WTO remedies remains “murky and confused.” Some commentators contend that the overarching objective is, and should be, to induce compliance with WTO obligations. Others maintain that the central goal is, and should be, rebalancing – that is, to ensure that the overall balance of concessions is maintained. Rebalancing is to be achieved by permitting the successful complainant to suspend concessions in an equivalent amount. This chapter confronts the question inductively through an assessment of WTO members' practice.

One method of discerning purpose is by examining members' practice, constituting the law-in-action of WTO remedies. State practice implicates, at least in part, how WTO complainants view the primary objective of WTO remedies, and, in particular, whether they focus on rebalancing or compliance. This chapter's conclusions are supported by the five case studies in this volume regarding complainants' use of retaliation, respectively covering the United States, the European Union (EU), Mexico, Canada, Brazil, and other developing country members. Our conclusions are necessarily tentative given the few cases of authorized retaliation under Article 22 of the DSU (nine disputes involving eighteen nations in 13 years), and the even smaller number actually implemented.