WTO분쟁해결기구의 판정 이후 실제이행사례에 관한 고찰

Abstract

WTO Dispute Settlement Body, having the purpose in pursuit of peaceful settlement of disputes with respect to the trade, makes an effort to find positive and acceptable resolutions. This means that one of the major purposes of the Body is abolishing or moderating the measure at issue. For example, discriminatory measures might be the violation of the WTO agreements so that a relevant dispute party may take measures in the way of indiscrimination, in spite of the measure at issue having been taken by means of the exceptions of GATT article 20. Recent cases such as EC – Seal Products (2014), US – Tuna II (2012) as well as Brazil – Retreaded Tyres (2007) are applicable.<BR> In each case, the discriminatory measures were available since they were justified by GATT article 20, but the panel and appellate body of WTO DSB did not allow those measures. The main issue was the next step as the implementation. Although those measures were supposed to be abolished, the practical implementation was quite different. Those measures were reinforced forward to the non-discriminatory strengthen ones. This resulted in the distorted implementation of the rulings by WTO DSB. Consequently, this was away from the cause of WTO.<BR> As one of the main issues in this cases, WTO Dispute Settlement Body has just automatically applied the rationality test as the standard for assessing arbitrary and discriminatory measures. In Brazil – Tyres (2007) case as well as the other two cases, the measures at issue were not only fortified further but also enhanced non-discriminatorily. The panel and appellate body have surprising roles in changing public policies on each member state, connecting the rationality test to the consistency test. Specifically, when assessing the discriminatory measures, the Body did not consider any other particular circumstances and did disregard the principle of proportionality.<BR> In these circumstances, practical implementations by relevant states would not appropriate for the purposes in WTO. Furthermore, this causes useless legal expenses as well as time wasting. Therefore, in case of that the measures at issue are justified by exceptions of GATT article 20, the measures should be allowed to some extent unless those measures would be abused. Therefore, WTO Dispute Settlement Body should take positive attitude and make persuasive and reasonable decisions. Ultimately, WTO member states and the other relevant states should negotiate the rules as well as might amend some of the rules.