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Chinese Journal of International Law Advance Access originally published online on January 10, 2007
Chinese Journal of International Law 2007 6(1):43-66; doi:10.1093/chinesejil/jml052
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© The Author 2007. Published by Oxford University Press. All rights reserved

Catch Me if You Can: An Analysis of "Measures Taken to Comply" under the WTO Dispute Settlement Understanding

Bjørn Kunoy*

Correspondence: * Master of International Trade and Investment Law, Université Paris X-Nanterre, LLM in European Legal Studies, College of Europe, Brugge (email: bjornkunoy{at}gmail.com). The author wishes to thank Christine Makori for valuable comments on an earlier draft of the manuscript. The same disclaimer applies.

The objective of the compliance procedure is to ensure prompt compliance with the Dispute Settlement Body's (DSB) recommendations and rulings through an expeditious procedure. In their assignment, the compliance panels are faced with competing considerations of, on the one hand, ensuring Members the right of a "reasonable period of time" for implementing the DSB's recommendations and rulings and, on the other, ensuring prompt compliance. Compliance panels have to pay due respect to the fact that an Article 21.5 proceeding is not a new proceeding, which limits the scope of which claims may be raised in those proceedings and restricts the determination of which measures are "measures taken to comply". In order to achieve those overall aims, compliance panels and the Appellate Body have accepted that claims other than those raised in the original proceedings may be presented in compliance proceedings. Due process principles form an integral part of the Dispute Settlement Understanding (DSU). The delicate task of the panels and Appellate Body is to determine which claims, not raised in the original proceedings, are admissible in an Article 21.5 proceeding. Compliance panels and the Appellate Body have established several limitations in order to limit the ambit of potential claims and measures that may fall within an expeditious Article 21.5 proceeding. However, the embraced approach to determining which new claims, not raised in the original proceedings, are to be considered in Article 21.5 proceedings and which measures fall within the realm of measures taken to comply bears the common characteristics of being subject to an extensive interpretation of Article 21.5 of the DSU.


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