WTO 분쟁해결절차상 금전보상제도의 적극적 활용방안

The Use of Monetary Compensation in the WTO Dispute Settlement System

Under the World Trade Organization (WTO) dispute settlement system, its first objective is to secure the withdrawal of the measures concerned if these are found to be inconsistent with WTO obligations. In practice, a reasonable period of time for bringing such measures into conformity with WTO obligations is normally provided. As acceptable remedies, the complaining member that has prevailed in a case may seek trade/monetary compensation from, or impose retaliation against, the violating member when the latter fails to comply with its WTO obligations within such a time period. However, a number of problems have been raised with regard to trade compensation and retaliation in their implementation. In case of trade compensation, a violating member may have difficulty finding a domestic industry sector volunteering for granting tariff reductions to a competing foreign exporter in order to protect another sector that has benefited from violation. In case of retaliation, since it is meant to raise trade barriers, the consumers and industries of the complaining member, who prefer cheaper imports, have to suffer. In this regard, it has a negative impact not only on the violating member but also on the complaining member. Therefore, this paper attempts to seek ways of using the remedy of monetary compensation more extensively in lieu of trade compensation and retaliation. First, an objective assessment on the level of compensation should be made between the disputing members, so as to avoid a breakdown in negotiations for compensation. One option would be the arbitration proceeding under Article 25 of the DSU. Otherwise, the conciliation or mediation procedure under Article 5 would be another option, if a non-binding opinion is preferred. Second, the retroactivity on the level of compensation should be introduced. This would not only redress past injuries to some degree, but also create incentives for prompt compliance. Lastly, as a matter of enforceability, monetary compensation could be enforced through a domestic court under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards as most of WTO members are signatories to the Convention. Overall, steady efforts for the study on the improvement of WTO dispute settlement remedies should be made in order to ensure effective compliance, and, ultimately, the stability and credibility of the world trading economy.