Some theoretical and legal perspectives on WTO compliance

Abstract

This contribution offers some theoretical and legal perspectives on WTO compliance. It draws on current theories of compliance with international law in determining that WTO compliance is essentially norm-driven and liberal/institutionalist in character. The two key models of compliance at work in the WTO are the management model, which employs persuasive techniques in order to induce compliance, interspersed with the enforcement model with its coercive approach towards compliance. The latter model is clearly at work in the compliance decisions of the DSB, where a complainant Member may seek authorisation to impose countermeasures in the form of suspension of concessions or other obligations. Although even here a range of techniques are employed on an individual basis by the complainant and respondent parties as well as collectively by the membership in order manage the process of compliance. Thus, a range of ‘softer’, more persuasive, managerial techniques exist alongside coercive, enforcement ones in order to encourage compliance with WTO dispute settlement decisions and to foster normative consensus among the Members. The two models of compliance work in tandem across a broad spectrum of compliance activities and are so intertwined with one another as to form a management-enforcement ladder of compliance with WTO law. However, this ladder of compliance is less successful in accounting for some of the more egregious forms of WTO non-compliance. Instead, such non-compliance is better understood on the basis of realist (or even rationalist) theories of compliance, which may include the efficient breach theory.