International Liability for Violation of “WTO Rights”: Functions of the WTO Dispute Settlement Body

Abstract

Introduction. The article discusses the theoretical and practical features of the content of the rules on liability and their application by the Dispute Settlement Body of the World Trade Organization. Theoretical Basis. Methods. The theoretical basis was scientific developments in domestic and foreign doctrines concerning the responsibility of states and organizations under general international law and “WTO law”, which are of fundamental importance for the subject of analysis in the present. Among them are the works of Russian specialists – L. P. Anufrieva, D. S. Boklan, G. M. Kalachigin, A. Ya. Kapustin, Ya. S. Kozheurov, I. V. Rachkov, M. Trunk-Fedorova and others, as well as foreign authors – G. Arangio-Ruiz, J. Gomul, J. Pauvelin, D. Jackson, J. Crawford, E. W. Pietersmann and others. In preparing the article, such general scientific methods of cognition as systemic and structural analysis, synthesis, deduction, induction, analogy, formal logic, and private scientific special research methods were used: historical-legal, comparative-legal, formal-legal. Results. As a result of the analysis: a) a hypothesis is put forward about the existence of two “autonomous” (special treaty) regimes: the actual “WTO rights” in relation to general international law, on the one hand, and “responsibility in WTO law” as lex specialis in its relationship with the rules on liability in international law in general (lex generalis), on the other; b) a fundamental feature of the approach to international responsibility in the “WTO law” in the case of the use by its members of measures that do not comply with the norms of the “package” of WTO agreements, as opposed to how this happens when applying the “classical” positions of the law of responsibility in general international law with its inherent wrongful conduct, the basis of wrongfulness is the use of the presumption of “cancellation or reduction of benefits”. In light of this, complete disregard for the concept of “responsibility for violating WTO law” does not seem rational, bearing in mind that one way or another the term “inappropriate measure” is made dependent on the assessment of the behavior of subjects - in accordance with or not in accordance with WTO law; c) proposals are made to introduce into the Arrangement on Rules and Procedures Governing Dispute Resolution (hereinafter referred to as the ADR), provisions on “restrictive measures” to be applied to violators. This is especially important in the current period, when under the conditions of “sanctions pressure” against Russia, including from the side of the WTO member states, an unjustified asymmetry is being created: bypassing the fundamental principles of “WTO law”, the main foundations of international trade, declared throughout the the last decades, and as a rule, there is no question of responsibility for “wrongfulness”, i. e., “violation of the WTO law”, in the literal legal interpretation; d) in view of the clearly ongoing crisis in the WTO dispute resolution system due to failures in the work of the Appellate Body as its principal link, an appropriate interpretation of the WTO DRS is proposed in direct connection with the provisions of the Marrakesh Agreement in order to change the tools for electing members of the Appellate Body of the Resolution Body WTO disputes - not by consensus, but by voting. Discussion and Conclusion. In order to draw attention to the issues of the functioning of the WTO as a multilateral trading system that needs to ensure stability, sustainability and liberalization of the regulation of interstate trade relations, the article, in the course of analyzing the problems of international responsibility, gives a definition of the concept of “responsibility in WTO law”, and also proposes for discussion the introduction of some additional provisions, both relating to general approaches to said liability, and relating to non-enforcement of decisions of the Dispute Settlement Body.