Research On Defects Of WTO Retaliation System

The WTO retaliation system discussed in this paper is the last enforcement system in the WTO dispute settlement mechanism.It is stipulated in article 22.6 of DSU and it is described as "suspension of concessions and other obligations".The purpose of the retaliation system is to prompt the losing party to perform the decision of DSB as soon as possible by using retaliatory measure to impose economic pressure on the losing party.As the final remedy,the system of retaliation is greatly significant to guarantee the rights of the complainant and to promote all members in WTO to perform obligations under WTO.However,to be acknowledged,a large number of examples show that there are many defects in the current system of retaliation.This paper introduces basic theory of the retaliation system,and analyzes the defects of the retaliation system from the perspective of procedure,substance and applicable effect,combined with related cases,and then put forward the corresponding solutions for these defects,as well as propose that,accompanying the position of China in WTO getting higher and higher,China should be how to deal with the retaliation system and how to take advantage of the retaliation system to safeguard our national interests.This paper is divided into four chapters,which are as follows:The first chapter describes the basic theory of the system of retaliation.It includes a brief analysis of the conception of retaliation system,the detailed introduction of the rules of the system of retaliation,as well as the analysis of the characteristics of the retaliation system based on the rules.The second chapter analyzes the defects of the system of retaliation from the following three aspects: the defects of the rules in procedure,the defects of the rules in substance,the defects from the perspective of applied effects.In terms of the procedure,firstly,the article of 21.5 and the article of 22.6 conflicts with each other;secondly,the rules of the authorization could easily lead to the abuse of the retaliationsystem for the losing party to delay and escape performing the due obligations;thirdly,the specific provisions of rules in the retaliation system is vague,which causes difficulty in the practical operation.In terms of substance rules,firstly,it is difficult to account the degree of the retaliation measures in practice;the provisions of rules in arbitration procedure are too broad,leading to the excessive discretion for the arbitrators;the retaliation system is non-punitive which means that its effects have to be weakened.In terms of the actual effects,the retaliation system is useless for developing countries,and is unable to protect developing countries;besides,the retaliation system cannot achieve the substantive justice;for instance,the complainant cannot get fully remedy by apply to retaliation system,cross retaliation will affect the losing party's innocent industry,retaliation system may induce the protectionist.In the third chapter,some solutions are put forward.The author raises the following proposals to improve the retaliation system from the aspect of procedure,substance and applied effects.In rules of procedure,the author suggests that the DSU shall provide the applicable order clearly between the article 21.5 and 22.6 in order to resolve conflicts between the authorization procedure and execution of revenge review procedure;besides,the author suggests the DSU shall complete the rules regarding the termination of retaliation system.In substantive rules,the author suggests to make it clear that how to confirm and identify the loss of interest,to further refine the rules of arbitration,as well as,to expand the level of retaliation in order to enhance the effect of the retaliation system to resolve the dispute as soon as possible.In order to improve the effects of the retaliation system,the author suggests that DSU shall make more efforts to protect developing countries,such as establishing the collective retaliation system,retaliation transfer system and money compensation system.What's more,the developing countries should be more positive to apply the retaliation system,and should strengthen strategic cooperation with other developing countries at the same time to enhance the capacity of retaliation.The fourth chapter describes the countermeasures of China to participate the WTO retaliation system better.The author believes that China will participate and utilize the WTO retaliation system more and more positively.And the author puts forward the following proposals to assist China using the system better.First of all,the author suggests that China perform duty positively;secondly,China should learn from the experience from other developing countries for retaliation system in the Brazil cotton case,US gambling case,the EU banana case,precedents wheredeveloping countries apply the retaliation system,which is the accumulation of valuable material for our country;thirdly,China should actively promote the completion of the retaliation system rules so as the system becomes more fair and effective;finally,on the one hand,China should actively take advantage of the retaliation system to keep accumulating experience.One the other hand,China shall be well prepared,including making full use of the rules of retaliation system,actively fulfilling the obligations under WTO to avoid being imposed retaliation measures,actively cultivating professionals in the field of international law,and implementing the diversified export strategy.