WTO 보조금 협정상 ‘적절한 대응조치’의 법적 판단기준

This study aims at revisiting a legal standard for ‘appropriate countermeasures’ in the WTO SCM Agreement. If there is a persistent non-compliance under the WTO DSM, a complainant is entitled to take a bilateral countermeasure. The level of appropriate countermeasures is determined by arbitrators based on Article 4.10 of the SCM Agreement. A legal standard chosen by arbitrators for determining countermeasures against the prohibited subsidy was the amount of a subsidy. Then, arbitrators adjusted the appropriate level of countermeasures in light of the purpose of the dispute, that is a withdrawal of the prohibited subsidy. However, the said legal standard, the amount of a subsidy has several legal problems, compared to other countermeasures involving actionable subsidies or general retaliatory measures in the DSU. Those other measures have been determined on the basis of trade effects or injury to the domestic industry. In this regard, this article analyzed the relevant discussion and jurisprudence on countermeasures in public international law, with focus on application of proportionality. Then, this article examined how proportionality could be imported in determining the appropriate countermeasures in SCM Agreement. Revisiting a legal standard for countermeasures in the SCM Agreement could contribute to the DSU reform agenda in the future.