Implementing DSB Reports: An Analysis Based on Brazil - Retreaded Tires Case

Abstract

One of the least-studied aspects of World Trade Organization (WTO) law is the difficulty of implementing Dispute Settlement Body (DSB) reports. By using the case of retreaded tires sold in Brazil, this paper examines the difficulties associated with implementing WTO decisions. The retreaded tires case is one of the most interesting in the history of the WTO/DSB, as it involves sensitive topics including environmental and health protection, exports of toxic substances from a developed country to a developing country, national decisions regarding an acceptable level of risk, conflicts of jurisdiction between a regional and a multilateral system, and the application of the “most favored” clause to benefit private citizens and corporations rather than states. This article presents three scholarly contributions as original research. First I discuss WTO law governing the implementation of reports, its creative aspects, and the challenges to the implementation process. Next, I introduce the retreaded tires case, and analyze aspects that are often not considered regarding implementation problems. This includes conflicts among domestic subjects, and disputes in national, regional and multilateral courts. Ultimately, we find that there is no legal antagonism between multilateral and regional courts, but there is a de facto hierarchy between them. This leads to questions clarifying. Finally, I illuminate some aspects neglected by WTO law related to implementation, such as how domestic conflicts can contribute to implementation problems encountered at the national level. A discussion is devoted to how the different conflicts of the legislative, executive and judiciary branches impact the efficacy of the DSB report implementation.