Adjudicating Compliance in the WTO: A Review of DSU Article 21.5

Jason E. Kearns and Steve Charnovitz

Journal of International Economic Law, 2002, vol. 5, issue 2, 331-352

Abstract: This article provides an analytical overview of one of the most important provisions in the WTO's Understanding on Rules and Procedures Governing the Settlement of Disputes. That is Article 21.5 which provides for a review of whether governmental measures taken to comply do in fact achieve compliance with WTO rules. Part I discusses the purposes that Article 21.5 serves and how they relate to the larger objectives of dispute settlement. Part II presents a table summarizing the Article 21.5 caselaw through February 2002, and then draws a few conclusions from that practice as to how well Article 21.5 is working. Part III discusses some procedural issues that have arisen in the new case law. Among the questions examined are which governments have standing to invoke Article 21.5 and what limits exist on raising new claims. The article concludes that Article 21.5 compliance panels and the Appellate Body are developing an innovative body of law that will serve a growing role in the cooperative management of the multilateral trading system. Copyright Oxford University Press 2002, Oxford University Press.

Date: 2002
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