dsu第21.5条用来遵守的措施的范围界定问题分析word格式论文.docx

AbstractIn WTO Dispute Settlement Proceeding, Dispute Settlement Body makes recommendations and rulings for the parties to the dispute. The original defendant may not comply with the ruling or although it may comply with the ruling while the original complainant or the third party thinks it does not, which result in new dispute. Under this circumstances, the parties in dispute or the third party can initiate proceedings under Article 21.5 and request the establishment of a compliance panel to review whether the original defendant complies with the suggestions and rulings or not. At the foremost, the compliance panel should judge whether the measure(s) in dispute are “measures taken to comply” in Article 215 or not. There is risk of defining the scope of “measures taken to comply” too narrowly or broadly. The purpose of this paper is to propose methods to judge whether disputed measure(s) are “measures taken to comply”. This paper is divided into five parts:Part I is the introductory part. The difference between Article 21.5 proceeding and panel proceeding, the status and the application of Article 21.5 proceeding in dispute settlement mechanism and the plights in application are introduced.Part II and part III are the main parts. In part II, from the analysis of the panel and Appellate Body reports, it is found that only the compliance panel is entitled to decide. The panel is given a mandate to analyze “the existence of measure taken to comply” and “consistency with a covered agreement of measures taken to comply”. In part III, basing on text analysis, two methods namely Close Nexus Test and Due Process, which are used to decide whether the disputed measures are “measures taken to comply”, are proposed after analyzing plenty of reports. The Close Nexus Test is about comparing the implementation time, the nature and the implementation effect between disputed measure(s) and the original measure(s). On the other hand, Due Process is used to avoid over interpret the sc