On The Cross-agreement Retaliation Mechanism Under The WTO

As one of the WTO (the World Trade Organization, hereinafter referred to as "WTO")achievements of the Uruguay Round, cross-agreement retaliation mechanism has beenintroduced into the WTO dispute settlement mechanism for the first time. In the beginning ofthe negotiations, the US-led developed countries established minimum protection limit ofintellectual property rights in all the WTO members within the international agreements,advocating the introduction of cross-agreement retaliation mechanism to force developingcountries to fulfill the obligation to protect intellectual property rights. Practice has provedthat the WTO cross-agreement retaliation mechanism has been used by the developingcountries to force developed countries to fulfill their obligation under the Dispute SettlementBody (Dispute Settlement, the Body, hereinafter referred to as "DSB") award, and has beendeemed as a powerful weapon.So far, there are only three jurisprudences on cross-agreement retaliation: Ecuador v. ECBanana Case, Antigua v. United States gaming case and Brazil v. U.S. cotton case. Thecommonality of these cases are: authorized to developing countries to retaliate on developedcountries to implement cross-agreement retaliation; in the field of intellectual property, sodeveloping countries could retaliate against developed countries in the fields of trade in goodsor services; no retaliation made by developing countries, but using these retaliatory measuresas a bargaining chip; cross-agreement retaliation in the DSB has changed the attitude of non-compliance of the DSB ruling, but making active negotiations as the losing party for the partof developed countries. Obviously, the mechanism of cross-agreement retaliation is a usefulweapon for developing countries however, concerns of developing countries of theimplementation of cross-agreement retaliation measures, exposed the defects of the cross-agreement retaliation mechanism, such as the inherent deficiencies of cross-agreementretaliation mechanism, the economic reality of developing countries, and other objectivefactors. Therefore, this thesis will discuss the formation process, current status, applicableconditions, principles and its procedures of cross-agreement retaliation mechanism, based onrelated jurisprudence. Moreover, this thesis, with above discussion, will analyze defects andplight of this mechanism., This thesis strives to help developing countries to make good useof this double-edged sword, and to provide reasonable and feasible legal advice to them. The paper is divided into five parts:The first part is historical analysis, which will discuss the formation and development ofthe concept of cross-agreement retaliation mechanism. Then, WTO jurisprudence on cross-agreement retaliation will be analyzed.The second part is text analysis, guided by DSU22.3analyzes the content andapplication of cross-agreement retaliation mechanism. This parts points out the formcondition and material condition of applying the cross-agreement retaliation mechanism, withthe focus on "feasibility", effectiveness "and “serious enough” of material condition, It pointsout that the applicable standards of DSU retaliatory measures are vague in the field ofintellectual property, it has to be improved by developing countries to negotiate such standardin the future.The third part is empirical analysis, combined with the thee DSB cases, this part dealswith the defects and the plight of the cross-agreement retaliation mechanism, e.g., formalunfairness, vagueness of the substantive conditions standard of review, the difficulties in thefield of intellectual property, and the cost of the developing countries to implement suchretaliation.The fourth part deals with the plight from a system perspective, and proposes how toimprove cross-agreement retaliation mechanism.The fifth part, from three aspects of rationals, proposes how developing countries to usethis mechanism. The pros and cons of the cross-agreement retaliation mechanism, thedeveloping countries have to take the view that cross-agreement retaliation mechanism isfeasible and applicable to them; selecting reasonable types of intellectual property inretaliation is useful in controlling retaliation level; actively participate in internationalnegotiations, and strives to reach an international consensus.