WTO 분쟁해결절차상 보복조치의 문제와 개선방안

Since the establishment of the World Trade Organization (WTO) on January 1, 1995, the dispute settlement regime within the WTO has become one of the most active dispute settlement mechanisms in international law. Nevertheless, WTO has some limits in the dispute settlement system, the procedures of retaliation in particular. The enforcement approach in the DSU is flawed. It lets scofflaw governments avoid liability for too long and has little deterrent effect. Retaliation under the WTO requires following the procedures established in DSU Article 22.3. If the parties fail to agree on a satisfactory compensation within 20 days after the reasonable period of time has expired, the complaining party may request authorization from the DSB to suspend concessions or other obligations granted in Covered Agreements. If a WTO member fails to implement recommendations and rulings adopted by the DSB within the required period of time, the complaining party is entitled to request authorization from the DSB to suspend such concessions and other obligations, i.e. to apply trade sanctions. A state must suspend concessions within the same sector or agreement, unless doing so “is not practicable or effective.” If not practicable or effective, and the victim state considers "circumstances are serious enough," it may cross-retaliate by seeking to suspend trade concessions in other WTO agreements. It seems clear that the DSU aims to induce the violating state to remove the offending measure. It is, however, not the exclusive purpose of the DSU. The DSU also constrains state responses toward the violating state, principally by limiting the level of retaliation “equivalent to the level of the nullification.” If inducing compliance from the violating state were the only goal, the DSU would approve retaliating as much as necessary to achieve this outcome. Therefore, an equally plausible reading of DSU Article 22.3 is that it seeks to limit and define the scope and substance of retaliation. The goal of retaliation under the WTO is the maintenance of a proper balance between the rights and obligations of Members by inducing compliance from the violating state. The question is how significantly increased retaliation, including cross-retaliation, adds to the likelihood of compliance with WTO rulings. It cannot be denied that an institutionalized regime of sanctions may increase compliance over the medium-to-long term, and possibly induce liberal trade policies in situations where it otherwise would not occur. Limiting cross-retaliation to situations where the victim state has little trade with the violating state will usually prevent DSU Article 22.3 from becoming a tool of the powerful against the weak because, on the whole, weak states have less trade than larger developed countries. The compliance-inducing benefits of the WTO are unlikely to be significantly enhanced through more cross-retaliation, although the drawbacks may be substantial. But practically, the effect of retaliation is different as to whether members suffer a suspension of concessions that restores the overall balance of benefit and burdens. Also it is difficult to take account of the level of retaliation “equivalent to the level of the nullification.” The WTO's most effective tools are legitimizing retaliatory actions in the face of a trade partner's continued breach by the clarifying legal procedures.