Chapter 18 Unintentional Breach in the DSU of the WTO: Consultation in the Shadow of Remedies

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.