Study On The Scope Of "Measures Taken To Comply" Under DSU Article21.5

In WTO Dispute Settlement Proceeding, Dispute Settlement Body makesrecommendations and rulings for the parties to the dispute. The original defendantmay not comply with the ruling or although it may comply with the ruling while theoriginal complainant or the third party thinks it does not, which result in new dispute.Under this circumstances, the parties in dispute or the third party can initiateproceedings under Article21.5and request the establishment of a compliance panel toreview whether the original defendant complies with the suggestions and rulings ornot. At the foremost, the compliance panel should judge whether the measure(s) indispute are “measures taken to comply” in Article215or not. There is risk of definingthe scope of “measures taken to comply” too narrowly or broadly. The purpose of thispaper is to propose methods to judge whether disputed measure(s) are “measurestaken to comply”. This paper is divided into five parts:Part I is the introductory part. The difference between Article21.5proceedingand panel proceeding, the status and the application of Article21.5proceeding indispute settlement mechanism and the plights in application are introduced.Part II and part III are the main parts. In part II, from the analysis of the paneland Appellate Body reports, it is found that only the compliance panel is entitled todecide. The panel is given a mandate to analyze “the existence of measure taken tocomply” and “consistency with a covered agreement of measures taken to comply”. Inpart III, basing on text analysis, two methods namely Close Nexus Test and DueProcess, which are used to decide whether the disputed measures are “measures takento comply”, are proposed after analyzing plenty of reports. The Close Nexus Test isabout comparing the implementation time, the nature and the implementation effectbetween disputed measure(s) and the original measure(s). On the other hand, DueProcess is used to avoid over interpret the scope of “measure taken to comply”.Part IV is about China’s practice under Article21.5. In EC—Fasteners (China),China submits its first request for the establishment of Article21.5panel. Furthermore,it also studies the strategies under compliance proceeding suggested for the future use.The last part is the conclusion.