Fundamental Deficiencies Of Remedy Mechanism For Rulings Under DSU And Its Reform

Whether judicial rulings can be effectively enforced is one of the key criteria in determining whether the dispute settlement mechanism of a certain legal system can be well-operated. With the development of dispute settlement practice under the World Trade Organization (WTO), remedy mechanism for the rulings has become one of the hottest topics among the academicians and practitioners. This paper, based on the fact most domestic academicians ignored the research on remedy mechanism under DSU from the macroscopical perspective, aims to discuss the systematic and functional deficiencies of such mechanism and further, to propose some suggestions for the reform of remedy mechanism under DSU.In Chapter I, the author aims to briefly outline the remedy mechanism for rulings from the perspective of text of DSU. Before application of remedy mechanism, the author starts from the effectiveness of rulings of dispute settlement body (DSB) and presents the subject of remedy mechanism, i.e., rulings or recommendation of DSB, then the author sets out relevant procedures for how to determine the time limit for implementation of DSB rulings and whether the DSB rulings have been implemented. In case that DSB rulings cannot be implemented within a prescribed time limit, the remedy mechanism will be revoked. Remedy mechanism under the WTO is composed of two measures: one is the compensation and the other is the retaliation, i.e., suspension of concession and other obligations.In Chapter II, the author discussed functional deficiencies of remedy mechanism respectively from compensation and retaliation points of view. With regard to the compensation, its deficiencies are reflected by two facts: one is that compensation was rarely used and the other is that in case it is used, many issues will involves. With regard to the retaliation, the author first outlines three key issues: (1) it disobeys basic principles of WTO; (2) it is unfair to the developing countries; and (3) it might infringe innocent third parties'interests. In addition, when discussing deficiencies of compensation, the author presents the typical views in defending for such mechanism and then comments on such views.In Chapter III, the author first briefly introduces proposals by relevant parties with regard to reform of DSU remedy mechanism in the Doha round. Then, based on the deficiencies of remedy mechanism as set out in Chapter II, the author proposes his suggestions. Last but not the least, the author also discusses China's attitude and negotiation strategy with regard to the remedy mechanism under DSU.