WTO 분쟁 패소국의 불이행요인과 이행촉진방안 분석: 분쟁해결절차(DSU) 활용의 실무적 측면을 중심으로

This article aims to analyze theoretical, institutional, and practical aspects of the compliance with the WTO Dispute Settlement Body (“DSB”) decision. It also tries to provide scholars and practitioners with up-to-date discussion of the DSU review negotiation with regard to the issue of enhancing effective compliance with the DSB decision. Although Members of the WTO have been known to comply with the DSB decision relatively well, they also acknowledge that there exist fundamental loopholes in inducing the party concerned to promptly comply with the DSB decision. In order to understand the theoretical basis of the WTO compliance, this article introduces a couple of academic literatures, explaining the motivating factors for a state to implement its obligations under international agreement. They examine what motivates a state to comply with or violates its obligation. This article shares the view that retaliation and reputation are the motivating factors, explaining a state’s compliance with an international treaty. On the other hand, this article introduces and examines the efficient breach theory to explain non-compliance of a WTO Member. Despite its usefulness for explaining a state’s non-compliance, this article claims that the structural loopholes of the WTO dispute settlement procedures allow a Member to breach its obligation ‘inefficiently.’ In order to better understand the practical implication of the theoretical aspects and the various proposals of the DSU review negotiation, this article tries to explore each steps of the WTO dispute settlement procedures. A detailed examination of each step shows that DSU has several fundamental problems, hindering prompt and effective compliance by the party concerned. For example, as opposed to the framers’ aspiration, normally it takes more time to circulate panel and the Appellate Body reports than the time designated in the DSU. The Trans-Atlantic disputes over the large civil aircraft empirically proved this claim. In addition, asymmetrical nature found in the economic relationship between the parties to the dispute often forces complainant to rethink its decision to retaliate against respondent. In order to guarantee effective compliance with the WTO decision, WTO Members have circulated several proposals in the DSU review negotiation. This article introduces these proposals and examines why they are not workable under the current DSU and thus need further clarification. This article concludes that DSU has structural loopholes that hinder effective compliance with DSB decisions. In order to alleviate the current loopholes, this article suggests further study, inter alia, on the ideas of shortening time-frame and introducing retrospective remedy.