The implications of WTO retaliation to private economic actors : to what extent state liability is accomplished?

The WTO dispute settlement system recognizes trade retaliation under Article 22 (2) of DSU to induce scofflaw party of WTO dispute to comply with the DSB Decision.However, trade retaliation under the DSU rules lacks any duty to mitigate the economic or social consequences to private economic actors who conduct their economic activities under the WTO Agreements.Many of these actors will be innocent of any responsibility for the WTO violation that underlies the case.Banana case (EU v. US) and FSC/ETI case (US v. EU) were example of WTO cases from where these actors bear the cost of trade damage caused by the retaliation.Trade damage that is borne by these actors substantially infringed their rights to gain benefits under the WTO Agreement.They therefore seek the possibility to obtain compensation by recourse to national litigations.State liability principle may be viewed as a feasible principle to ensure these actors to obtain redress when their rights are infringed by the disobedience of their governments to WTO rules.Hence, the national judicial body is obliged to perform the function of state liability to rectify and to compensate the damage accruing to these actors.This research is pertinent to seek the answer to what extent is state liability accomplished when the private economic actors are badly affected by the WTO retaliation.However the lack of direct-effect to WTO Law and DSB Decision prevent these actors to obtain compensation for trade damage caused to them.To this end, this research also seek alternative solution to induce national litigation to determine a sole concern on infringement of individual right in order to imply state liability principle 47 European Communities-Measures Affecting the Importation of Certain Poultry Products, (WT/DS69/AB/R),13-7-1998.48 Chile -Price Band System and Safeguard Measures Relating to Certain Agricultural Product, (WT/DS207/AB/R), 23-9-2002.49 In terms of reference of Panel, Article 7 of DSU limited the authority of Panel to assess the dispute only in the scope of claim written by the parties in the first sentence.See also Argentina -Safeguard Measures on Imports of Footwear, (WT/DS121/AB/R), 14-12-1999.50 Chile -Price Band System, Supra Note 48.Due process is an obligation inherent in the WTO dispute settlement system.A Panel will fail in the duty to respect due process if it makes a finding on a matter that is not before it, because it will thereby fail to accord to a party a fair right of response.Panel considers acting beyond the requirement to asses objectively and in good faith.51 EC -Hormone Case, Supra Note 4. 52 Article 13 of DSU mentions that Panel has right to seek information and technical advice from any individual or body includes the experts relating to the case.53 India-Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, (WT/DS90/AB/R), 23-8-1999.Once Panel concludes that a member's measure is inconsistent with a covered agreement, it shall recommend the member concerned brings that measure into conformity with the agreement.55 Panel should submit its finding and conclusions in the form of written report to the DSB.A Panel report must, at minimum, set out the findings of fact, the applicability of relevant provisions and the basic rationale behind any findings and recommendations that it makes.56 The report become legally binding when it is adopted by the DSB and thus have become the recommendations and rulings of the DSB, unless a party to the dispute formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report.If a party has notified its decision to appeal, the report by the panel shall not be considered for adoption by the DSB until after completion of the appeal.57 54 United States -Section 211 Omnibus Appropriations Act of 1998, (WT/DS176/AB/R), 2-1-2002.See also Case concerning certain German interests in Polish Upper Silesia (The Merits),(22 March 1926), Publications of the Permanent Court of International Justice Series A -No.7 (Annex II); Collection of Judgments, A.W. Sijthoff's Publishing Company -Leiden/Netherland.In this merit, the court is certainly not interpreting the municipal law of the party, but there is nothing to prevent the court to give judgment on the question whether or not, in applying that law, party is acting inconformity with its obligations toward international law.55 Article 19(1) of DSU.See also Bourgeois, J.H.J., (2005), Trade Law Experience: Pottering about in the GATT and WTO, Cameron May Publisher -London/UK, pp.34.The discussion about whether WTO remedies are prospective only or also retrospective focuses on Article 19, accordingly Panel or Appellate Body urge the member to concerned bring the measure in to conformity.56 Article 12(7) of DSU; see also Van den Bossche, Peter, (2005), The Law and Policy of the World Trade Organization; Text, Cases and Materials, Cambridge University Press -Cambridge/UK.pp.253 57 Article 16 (4) of DSU.See Fabri, Helene Ruiz, (2013), 'The Relationship between Negotiations and Third-Party Dispute Settlement at the WTO, with an Emphasis on the EC-Banana Dispute', in Diplomatic and Judicial Means of Dispute Settlement, eds.Chazournes, Laurence Boisson de, Kohen, Marcelo G., and Vinuales, Jorge E., MartinusNijhoff Publishers -The Hague/the Netherlands, pp.93.In Banana Case EU 58 In some cases Appellate Body extend of the deadline for its report, such as, United States -Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, (WT/DS138/AB/R), 10-5-2000, Thailand -Anti -Dumping Duties on Angles Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland, (WT/DS122/AB/R), 12 -3-2001, and European Communities -Measures Affecting Asbestos and Asbestos -Containing Products, (WT/DS135/AB/R), 12-3-2001.59 See also Case Australia -Measures Affecting Importation of Salmon, Supra Note 42. 60 In European Communities -Anti -Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil, (WT/DS219/AB/R), 22-6-2003, Appellate Body rejected the EU's argument that was identifying during the Panel proceedings.Also in Canada -Measures Affecting the Export of Civilian Aircraft, (WT/DS70/AB/R), 2-8-1999, Appellate Body stated that an appeal shall be limited to issues of law covered in the Panel report and legal interpretations developed by the Panel.Also in case of the United States -Continued Dumping and Subsidy Offset Act of 2000,(WT/DS217/AB/R and WT/DS234/AB/R), 16-1-2003, Appellate Body had no authority to consider new facts on appeal.134 Federal Government Proposes 100% Tariff on European Motorcycles Under 500cc, available at: (http://www.Automotive.com), last visited 15-5-2009.135 United States -Tax Treatment for "Foreign Sales Corporations," Recourse to Article 21.5 of DSU by the European Communities, WT/DS108/RW, Report of the Panel, para.3.1(a)-(b), August 20, 2001.

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