Re-Assessing WTO Remedies : The Prospective and the Retrospective

The World Trade Organization (WTO) system of ‘prospective' or ‘forward-looking' remedies is often contrasted negatively with the ‘retrospective' remedy of reparation traditionally granted by international courts. In this article, I argue that prospective remedies must be assessed having in mind their different functions when contrasted to reparation: inducing compliance ex post, rather than discouraging it ex ante. The object and purpose of WTO remedies is to ensure cessation within a reasonable period of time or, in the absence of cessation, to allow alternative legal responses by the organization and its members until compliance is achieved. Although it would be beyond the current powers of WTO adjudicators to grant reparation, this does not exhaust the possibilities of ‘retrospective' remedies. When making use of the remedies provided for in the Dispute Settlement Understanding, panels, the Appellate Body and arbitrators must take into account the ultimate objective of WTO remedies in order to ensure that the absence of reparation does not imply an absence of legal consequences