WPS4450


Policy ReseaRch WoRking PaPeR                  4450




    Developing Countries and Enforcement of
                       Trade Agreements:

             Why Dispute Settlement Is Not Enough

                              Chad P. Bown
                           Bernard M. Hoekman




The World Bank
Development Research Group
Trade Team
December 2007

Policy ReseaRch WoRking PaPeR 4450


 Abstract

 Poor countries are rarely challenged in formal World                                 rules and disciplines against small and poor members,
 Trade Organization trade disputes for failing to live up to                          bolstering the transparency function of the World Trade
 commitments, reducing the benefits of their participation                            Organization is important for making trade agreements
 in international trade agreements. This paper examines                               more relevant to trade constituencies in developing
 the political-economic causes of the failure to challenge                            countries. Although the paper focuses on the World
 poor countries, and discusses the static and dynamic                                 Trade Organization system, the arguments also apply to
 costs and externality implications of this failure. Given                            reciprocal North-South trade agreements.
 the weak incentives to enforce World Trade Organization




 This paper--a product of the Trade Team, Development Research Group--is part of a larger effort in the department to
 analyze the enforcement of trade agreements. Policy Research Working Papers are also posted on the Web at http://econ.
 worldbank.org. The author may be contacted at bhoekman@worldbank.org.




         The Policy Research Working Paper Series disseminates the findings of work in progress to encourage the exchange of ideas about development
         issues. An objective of the series is to get the findings out quickly, even if the presentations are less than fully polished. The papers carry the
         names of the authors and should be cited accordingly. The findings, interpretations, and conclusions expressed in this paper are entirely those
         of the authors. They do not necessarily represent the views of the International Bank for Reconstruction and Development/World Bank and
         its affiliated organizations, or those of the Executive Directors of the World Bank or the governments they represent.


                                                         Produced by the Research Support Team

            Developing Countries and Enforcement of Trade Agreements:
                             Why Dispute Settlement Is Not Enough


                            Chad P. Bown                         Bernard M. Hoekman
                       Brandeis University and                The World Bank and CEPR
                      The Brookings Institution




JEL No.: F13

Keywords: Trade agreements, credibility, WTO, enforcement, dispute settlement, developing countries




________________

 Bown: Associate Professor of Economics, Department of Economics and International Business School, MS 021,
Brandeis University, Waltham, MA 02454-9110 USA. Tel: 781-763-4823, fax: 781-736-2269, email:
cbown@brandeis.edu, web: http://www.brandeis.edu/~cbown/.

 Hoekman: Research Manager, Development Research Group, The World Bank, 1818 H St., N.W., Washington,
DC 20433 USA. Tel: 202-473-1185, email: bhoekman@worldbank.org.

The opinions expressed in this paper are our own and should not be attributed to the World Bank or the Brookings
Institution. Thanks to Kyle Bagwell, Robert Staiger, Rachel McCulloch, Gregory Shaffer, Jide Nzelibe and
participants at the Bretton Woods ASIL-IELG conference for helpful comments on an earlier version. All remaining
errors are our own.

1        Introduction

Research on developing country engagement in the international trading system increasingly
challenges its relevance for their economic interests and performance.1 Within this area of

research, there is a growing political-legal-economic literature analyzing the failure of poor

member countries to engage actively in the World Trade Organization (WTO), especially

through formal legal participation in WTO dispute settlement provisions. Most analysis of poor

countries' lack of engagement in WTO dispute settlement focuses on hurdles to participation as

complainants or interested third parties in disputes related to their export market access
interests.2 For example, only one least developed country (LDC) has ever initiated WTO dispute

settlement proceedings: Bangladesh in a 2004 case against India involving Indian anti-dumping
duties on lead acid batteries (WTO/DS/306).3

         The focus on defending export interests ignores a dimension of the dispute settlement

process that may be more important for developing countries and the economic development

relevance of the WTO: developing countries in the WTO system are rarely challenged as

respondents in WTO litigation. As table 1 indicates, through the end of 2006, only two low-

income WTO members (India and Pakistan) have been formally challenged by WTO litigation.

Put more starkly, of the more than 350 formal WTO dispute settlement cases through 2006, none

of the 32 WTO members classified by the United Nations as LDCs have been challenged.

         As it is unlikely that poor countries are in full compliance with their trade liberalization

commitments, the failure of WTO members to enforce the provisions of trade agreements

reduces the value of participation in such agreements for these countries. Lack of enforcement

reduces economic gains from WTO membership for several reasons: welfare economic losses

due to continued import protection within developing economies; diminished incentives for the

country to take on additional WTO commitments such as reducing tariff bindings to meaningful


1The frustration of developing countries in the WTO more broadly is captured in Fatoumata and Kwa (2004). For
an economic dissection of what developing countries might realistically expect to achieve out of the WTO, see
Staiger (2006). For economic appraisals of the ineffectiveness and unintended consequences of the Generalized
System of Preferences (GSP) and other forms of special and differential treatment (SDT), see Ismail (2006), Keck
and Low (2006), Ozden and Reinhardt (2004, 2005) and Subramanian and Wei (2007).

2Examples from the economics literature include Bown and Hoekman (2005), Bown (2005a, b), Horn, Mavroidis
and Nordström (2005), and Nordström (2005). Examples from politics and legal scholarship include Davis and
Bermeo (2006), Busch and Reinhardt (2003) and Shaffer (2006).

3This case was settled in the consultations stage (Taslim, 2006). See Horn and Mavroidis (2006) and their database
on WTO disputes at www.worldbank.org/trade/WTOdisputes.

levels (i.e., at or close to applied rates); as well as externality costs imposed on other developing

countries.

        There are a number of possible explanations why WTO members do not challenge poor

countries. First, poor countries have made only a limited number of market access commitments

in the WTO, and they can invoke various provisions that offer them special and differential

treatment (SDT) when it comes to application of specific rules. Second, litigation is expensive in

economic terms (resource costs), and the potential gains to foreign exporters in terms of

increased market access from winning a case may be too small to compensate for the cost of

litigation. Third, litigation is also politically expensive ­ many governments, especially high-

income nations, may prefer not to be seen as "picking on" a poor country for WTO violations.

        While developing countries can invoke SDT provisions and many have not bound a large
number of their nonagricultural tariffs in the WTO,4 the concern we focus on in this paper is that

even if a poor country decides to make full use of the WTO as a commitment mechanism, the

current system makes enforcement unlikely. This in turn implies that developing countries are

not realizing the full economic benefits of WTO membership, and may help explain why

commitments by developing countries are more limited than those of industrialized economies.

        The maintained assumption in this paper is that implementation of negotiated

commitments is desirable from a national welfare perspective, especially when it comes to the

core disciplines of the WTO that are unambiguously welfare enhancing: tariff bindings, bans on

the use of quotas, and the principle of nondiscrimination. Non-enforcement of these types of

disciplines greatly reduces the relevance and benefits of membership in a trade agreement.

        We recognize that in practice, non-enforcement of some WTO rules may be welfare

enhancing for a developing country. A case in point is the TRIPS agreement, where the short-run

welfare benefit of implementation of commitments by some developing countries has been

questioned by numerous analysts. An implication of the weak dispute settlement-cum-

enforcement incentives in the case of small/poor countries is that many such WTO members will

have "policy space" on a de facto basis. Proponents of greater policy space in the WTO context

therefore might argue that the skewed incentive structure for enforcement under the WTO ­

which requires a minimum "size threshold" to be satisfied ­ is appropriate. The effect of the


4Every WTO member was required to bind all agricultural tariffs as a precondition for accession to the WTO. For a
discussion, see Hoekman and Kostecki (2001).



                                                     2

incentive structure that drives WTO dispute settlement is to ensure that in practice governments

of small developing countries may have significant policy flexibility, even in areas where in

principle they are bound to multilateral disciplines.

          Insofar as non-enforcement of WTO rules would be beneficial for a country, the de facto

policy space that is implied by a lack of enforcement is in our view symptomatic of another

problem: badly designed rules and commitments. The appropriate remedy is to re-negotiate the

rules or to seek waivers, and not to rely on the low probability of being confronted with a

dispute. Developing countries that desire greater policy flexibility should negotiate this directly.

Similarly, in a number of policy areas affecting trade that are not yet subject to binding

multilateral rules there may well be a good case for cooperation that is not associated with

binding, enforceable commitments (Hoekman, 2005). Explicit agreement (based on negotiations)

to define mutually acceptable rules of the game is the appropriate mechanism to enhance the

"development relevance" of the WTO. The status quo ­ de facto exemption from WTO dispute

settlement ­ is not.

          In addition to highlighting the potential costs created by a lack of enforcement, this paper

also raises questions about the applicability of the economic theory used to explain the formation

of trade agreements, and in particular, the case of WTO membership for small, poor countries.

One strand of the theory (e.g., Bagwell and Staiger 1999, 2002) stresses terms-of-trade effects as

the driving force underpinning cooperation between countries on trade and related policies. The

argument is that countries negotiate away the negative terms-of-trade externalities that would be

created by the imposition of trade restrictions in partner countries. A legitimate economic

question to ask from the perspective of this theory is, if a country is small and unable to affect

prices (in the terms of trade sense) as we might expect for many developing countries; what does

such a country stand to gain from a trade agreement? That is, why does it "need" the WTO at
all?5 A partial, and yet incomplete, answer to this question is that the government of the small

country would like to join the WTO because its exporters stand to benefit from the low tariffs

that large WTO member countries negotiate reciprocally with one another but must then extend
to all other members under the most favored nation (MFN) rule.6 But the terms-of-trade strand of


5I.e., a small country should have an economic welfare incentive to open up its market to imports unilaterally.

6This answer is incomplete because it does not explain why large countries want small countries to join the WTO.



                                                        3

theory does not explain why small country governments negotiate limits on their own use of

import tariffs and other policies when joining such a trade agreement.

        A second strand of economic theory (e.g., Tumlir, 1985; Staiger and Tabellini, 1987;

Maggi and Rodriguez-Clare 1998, forthcoming) indicates a potential commitment device benefit

for small, poor country governments that limit their own use of trade policy by negotiating entry

into trade agreements. This line of theory has the agreement serving as a lock-in mechanism or

anchor for trade and related policy reforms. By committing to certain rules that bind policies, a

government can make its reforms more credible; officials can tell interest groups seeking the

imposition of policies that violate the commitments that doing so would result in retaliation by

trading partners. However, if the agreement is unlikely to be enforced in practice because it does

not create adequate follow-through incentives, the political-economy explanation for cooperation
breaks down. Why then do we observe such reciprocal trade agreements in the first place?7

        The rest of this paper proceeds as follows. Section 2 presents a very simple economic

framework to illustrate the economic problems associated with a failure to enforce WTO

commitments, and discusses evidence on the on the use of antidumping and the effectiveness of

the General Agreement on Trade in Services (GATS) as a commitment device. In section 3 we

assess a range of alternative institutional approaches to "enforce" commitments under the current

dispute settlement system, highlighting the problems associated with each. Section 4 discusses

alternative, transparency-based approaches to address the problems associated with the current

weak incentives to enforce the commitments of poor countries. Section 5 concludes.


2       Implications of the Mechanics of WTO Enforcement

To illustrate the problems that arise in enforcing a developing country's WTO commitments,

consider a two country economic model with three actors: an importing industry (or consumer

interests) and an import-competing industry in the developing country of interest, and one

exporting industry in a foreign country. For simplicity, we represent the two countries as taking

on WTO commitments by assuming that each agrees to free trade.




7See also the discussion in Bagwell and Staiger (2002, p. 4). While our discussion below is framed in terms of the
WTO, the issues are more general; they apply to the incentives generated within most reciprocal, North-South trade
agreements.



                                                         4

         Assume for concreteness that the importing interest group in the developing country is an
industry C that relies on some imported intermediates as part of its production process.8 Typical

examples might be a clothing industry that requires imports of textiles; auto producers or the

construction industry that require imports of steel, etc. Industry C could produce a non-tradable

(e.g., construction) or a good that is traded as either an exportable or that also competes in the

domestic market with imports (not modeled). A second industry P in the developing country

produces goods that compete with the imported intermediate product from F ­ i.e., P also

produces the steel or textiles that can be used as inputs in downstream industry C. Thus the

developing country industry P competes directly with foreign industry F, but it does not compete

with industry C.

         To illustrate the potential role for an institution like the WTO, consider the following

typical policy scenario. In the face of import competition from F, industry P in the developing

country lobbies for protection from imports, which policymakers grant in some WTO-
inconsistent manner.9 The imposition of this new import restriction has the standard welfare-

economic implications for the developing country as it raises the production costs to developing

country industry C. If the policy is imposed as a tariff, the industry may be able to continue

sourcing from its preferred foreign supplier industry F, but at a higher cost. Alternatively, it can

switch to the domestic competitor P, which it was not entirely sourcing from before the import

restriction because it was more costly, the industry offered a lower quality variety, the industry

was capacity-constrained, etc.

         Whatever its sourcing choice, the implication is that developing country industry C will

have to reduce production because of the higher cost associated with the import restriction, and

this will lead to either a reduction in wages or laying off workers, as the industry is less

competitive. The effect of this reduced competitiveness may be strongest if C produces a

tradable product, as any (not-modeled) foreign competition that it faces could still source inputs

from the lower cost foreign industry F. A simple economic welfare analysis would most

frequently reveal that not only is the domestic consuming industry harmed by this import


8The analysis of interest group C representing final consumers (households) is similar, with the exception that in
general it will be more difficult for consumers to organize.
9The form of the WTO-inconsistent protection that eliminates market access is immaterial ­ it could take the form
of an inappropriate application of domestic antidumping or safeguard law, imposition of a tariff in violation of the
country's Article II bindings, a quantitative restriction, or some other non-tariff barrier to trade.



                                                             5

restriction, but the losses it suffers are larger than the gains to the other domestic industry P, and

thus this policy is welfare-reducing from the perspective of the economy as a whole.

          In many countries, the existing domestic institutional process will not allow for industry

C to voice its concerns regarding the implications of requests for import restrictions by industry
P.10 If so, there is a potential efficiency-enhancing role for an external institution, such as the
WTO.11 The "enforcement" that is provided by the WTO comes through its role as an

intermediary. The existence of the WTO establishes a forum where foreign industry F ­ the

exporter of the intermediate inputs that has also been harmed by the WTO-inconsistent trade

restriction that has shut off its market access ­ engages its government to file and pursue a

dispute on its behalf. If successful, the foreign government undertaking a dispute on behalf of

industry F will also be working in the interest of developing country industry C (or, more

generally, consumers). Furthermore, the dispute is likely to be valued by the developing

country's own government, which did not have the ability to implement its preferred policy in

the absence of the commitment power facilitated by the WTO.

          How does the initiation of a trade dispute ultimately benefit industry C and the

developing country? To illustrate, we sketch out the classic political-legal-economic path to

WTO dispute resolution. First, F's government makes legal arguments before the WTO Dispute

Settlement Body (DSB), and it convinces a Panel and then (if there is an appeal) the Appellate

Body that the developing country government's import restriction was WTO-inconsistent. In

order to enforce the commitment when industry P's government still refuses to comply, the

WTO process allows for F's government to demand the rebalancing of concessions and to

10This is frequently the case when it comes to antidumping or safeguard laws, for example. The statutes and
domestic institutions set up to administer the injury investigation do not allow for a consumer interest role in the
process. For a discussion see Finger (2002).

11Maggi and Rodriguez-Clare (1998) illustrate a commitment role for the WTO in a formal economic model,
suggesting it can be welfare-improving even for a small country when the domestic government has a weak
bargaining position relative to domestic lobbies. Without the commitment power provided by the WTO, the
government imposes distortionary trade restrictions and is compensated with rents extracted from the lobbies.
However, when the government has a weak bargaining position the resulting rents are small, and even a small
country's government would prefer to introduce a trade agreement like the WTO. The agreement allows the
government to commit to trade liberalization, yielding long run improvements in national welfare associated with
efficient resource allocation that are large enough to compensate it for the lost rents. Maggi and Rodriguez-Clare
(forthcoming) introduce an extended model which explores the tradeoffs facing a government with an incentive to
sign a trade agreement for both the terms-of-trade and commitment motives. Staiger and Tabellini (1987) provide
alternative arguments for a commitment role for the WTO by showing how a domestic government with income
redistribution motives can benefit from external enforcement when it seeks to implement an optimal policy of free
trade that is time-inconsistent.



                                                           6

receive authorization from the WTO to retaliate by raising its tariffs to reduce the market access

toward imports from the respondent developing country. This retaliation threat activates political

pressure within the developing country as its exporters (not modeled) mobilize in self-interest to

convince the respondent government to get rid of the WTO-inconsistent import restriction

adversely affecting industry F (and C). The moral of the commitment role story is that foreign
industry F is there to "rescue" consumer interests via WTO dispute settlement,12 in the process
also enhancing overall economic welfare in the developing country.13

         In order for the WTO to provide a poor country with the efficiency-enhancing,

enforcement-cum-commitment role posited by economic theorists, a foreign industry F must

actively engage. In practice, however, there are a number of reasons why no such foreign

industry may invoke the enforcement mechanism. First, if the developing country market is

small, foreign industry F may not even attempt to convince its government to file a WTO trade

dispute, because the resource costs of litigation exceed the potential market access benefits.

Second, even if the industry were willing to absorb the economic costs of pursuing a case

because the developing country market was sufficiently large, the international political costs for

the foreign government of pursuing a trade dispute against a poor country may be too high
relative to the expected benefits.14 In the current WTO system, if no foreign government/industry

F pair combination engages, potential disputes do not get filed and the WTO fails to provide an

external enforcement device.


12Note that there is nothing here to suggest that this story is limited to industries C and P in developing countries.
For example, let P be the US steel industry, C be the US steel-consuming industry, let F be steel producers in the
EU, and let the policy in question be the 2002 US steel safeguard. One economic interpretation of the WTO trade
dispute concerning that policy was that the EU's effective use of retaliation threats contributed to the US terminating
the WTO-inconsistent safeguard to the benefit of the US steel-consuming industries and US economic welfare.
From this perspective, the paradoxical implication is that developed countries such as the US are using the WTO to
improve their economic welfare by "losing" (legally) such WTO trade disputes on a regular basis.

13For reasons of domestic politics, the WTO is not likely to receive credit from the domestic government for taking
on this role. Most likely the government will place the blame on the WTO in order to deflect political pressure
levied by industry P. Furthermore, external critics may charge that the WTO is a non-democratic, supra-national
bully forcing an unwelcome policy change on the developing country, as they fail to recognize the developing
country is simply changing its policy back to one it had voluntarily committed itself to by agreeing to WTO
membership.

14There are a number of other contributing factors, including that the foreign government may not file a case of
market access interest to its exporters because it lacks the imports from the developing country in question. Under
the current "retaliation as compensation" approach, imports are a necessary condition to establish the credible
retaliatory threat needed to mobilize exporting interests in the developing country needed to convince the
government to remove the initial import restriction (Bown 2004a,b).



                                                            7

        The above concern complements the terms-of-trade strand of the research literature on

trade agreements. Bagwell and Staiger (1999, 2002) model the WTO as an institutional

framework where "large" countries balance reciprocal market-access concessions to neutralize

the terms-of-trade effects of their policy changes. From this perspective, the failure of any self-

interested party to engage actively to enforce poor country WTO commitments comes into

sharper relief. A small developing country that raises its tariff in a WTO-inconsistent manner

may go unchallenged because it is unlikely that it both (i) imports in sufficient volume that its

tariff imposes an external cost on a trading partner that is large enough to induce the partner to

seek to offset it by raising its own tariff (via authorized retaliation after a trade dispute), and (ii)

exports in sufficient volume to that partner so that such a retaliatory tariff would lead to the

partner's own terms-of-trade gain.


2.1     Additional concerns with the failure to enforce WTO commitments

The foregoing considerations are not the only economic implications when poor country

commitments are not enforced. There may also be important dynamic costs and externality

concerns.

        First, if we assume that industry leaders are rational and forward thinking, industry C

recognizes that there will be a lack of follow-through when it comes to enforcement of WTO

rules. Even with the institutional framework in place, the political-economic incentives and

environment may make it infeasible for foreign industries F to pursue cases. An implication is

that when industry C considers how much political capital to allocate to convince its government

to liberalize import markets, it will under-invest. The industry recognizes that there will be no

active enforcement at the WTO of the market-access commitments that it would have to spend

resources to convince its government to take on. The same dynamic will arise, but even more

strongly, in the case of consumers more generally.

        Second, consider the case of a large developing country, and the question of whether it is

likely to be able to use an agreement such as the WTO to escape from its terms-of-trade driven

prisoner's dilemma. Foreign governments, especially of high-income countries, that are potential

negotiating partners may fear a public outcry if they initiate a future trade dispute in an effort to

enforce the developing country's concessions. In such an environment, potential partners may be

less willing to negotiate reciprocal concessions with even large developing countries in the first



                                                    8

place. Combined, these two problems associated with the disincentive to engage developing

country governments may help explain why tariff bindings and services liberalization

commitments in the General Agreement on Trade in Services (GATS) tend to be limited for

many developing countries.

         Third, it is important to consider the welfare implications for the exporting country

industry, F. Suppose exporters in other developing countries are also disproportionately the

target of developing country trade restrictions that are not being challenged at the WTO, and, by

extension, the developing country market access liberalization commitments that are not being

made because of the lack of expected enforcement. If so, an additional concern may arise. In the

self-enforcing WTO system, we expect developing country exporters to be targeted

disproportionately for a number of reasons, including their limited retaliatory and legal

capacities. Such limitations are likely to discourage the exporters' government's willingness and

ability to engage in the WTO dispute resolution process to enforce their expected export market
access, independent of whether the potential respondent is also a developing country.15

         While the economic welfare implications of failing to challenge developing country

action are first order in importance, there are additional institutional implications worth

discussing. For example, Davis and Bermeo (2006) show that a developing country that has been

challenged is more likely to subsequently challenge other WTO members in defense of its own

export market access interests. In this manner, there may be "learning by doing," i.e., facing a

dispute as a respondent may eliminate some hurdles to participation and increase the likelihood

that a developing country will engage in the dispute settlement process as a complainant.

         This institutional externality is another area where the WTO principle of reciprocity

emerges. For political reasons, getting an external commitment mechanism like the WTO to

work to enforce domestic reform likely requires that countries have a relatively balanced

portfolio of WTO cases to show to their constituencies ­ some that they "win" on the

complainant side through increased market access for their exporters, and some that they "win"

(by "losing") on the respondent side where they agree to live up to import market liberalization

commitments that are being enforced. Political sustainability of the WTO as an institution may

require a balanced set of realistic expectations of what the organization, which coordinates a


15In a sample of data including WTO-inconsistent policies imposed by both developed and developing countries,
Bown (2005b) presents evidence that such variables affect the incentives of adversely affected exporters to engage
in formal WTO dispute settlement.


                                                        9

balance of concessions across countries, can do. If expectations for what the WTO can feasibly

accomplish for a country become unrealistic, it will ultimately turn out to be a failure in the eyes

of the public, thus undermining the institutional sustainability and the efficiency-enhancing

economic welfare benefits generated by the system.

        To summarize, the failure of the current enforcement model ­ i.e., the failure of WTO

members to challenge developing countries that do not live up to market access commitments ­

may give rise to at least four potentially important economic problems from the perspective of

developing countries. First, it imposes welfare costs on the economy and losses to consumers and

consuming industries that are larger than the gains enjoyed by domestic producers that would

otherwise have to compete with imports. Second, it creates an environment where domestic

industries in developing countries do not face the socially optimal incentives to invest their

political capital in trade liberalization because they foresee that liberalization commitments will

not be enforced. Third, foreign governments may be unwilling to negotiate reciprocally with

even "large" developing countries in need of escape from a terms-of-trade driven prisoner's

dilemma if such governments anticipate a future environment in which they are politically

unable to enforce a poor country partner's commitments. Fourth, developing countries may be

imposing new and unchallenged import restrictions that disproportionately affect the potential

exports of other developing countries.


2.2     Evidence

In this section we briefly discuss empirical research and newly available sources of data

supporting these concerns, focusing on the global use of antidumping, developing country use of

GATS as a commitment device, and some evidence that commitments matter for a country's

trade performance. As noted in the Introduction, the prima facie "stylized fact" that underpins

our argument is that small/poor developing countries are challenged only very infrequently in the

WTO.


2.2.1 Developing country use of antidumping and other trade remedies

The first question is whether developing countries are imposing potentially challengeable, WTO-

inconsistent import restrictions. One data source suggesting an answer to this question is

members' potentially WTO-inconsistent application of trade remedies such as antidumping and



                                                   10

countervailing duties, as well as safeguard measures. As Table 2 indicates, some of the heaviest

users of trade remedies such as antidumping are now developing economies. At the same time

that the use of trade remedies has proliferated across the WTO membership, the application of

trade remedies increasingly faces legal challenges through formal WTO dispute settlement.

Indeed, Table 3 indicates that almost half of the WTO disputes initiated between 1999 and 2006

involved challenges to trade remedies. Furthermore, in most trade-remedy cases that make it

through the panel process, the Dispute Settlement Body has found some WTO-inconsistent
element of the investigation undertaken and/or measure imposed by the respondent country.16

Thus there is little evidence from the WTO caseload that a country that applies a trade remedy is

likely to have it ruled as being consistent with its WTO obligations.

         Given this context, one particularly interesting feature of the data is that a developing

country's use of a trade remedy is unlikely to be formally challenged under the WTO Dispute

Settlement Understanding (DSU). For example, developing countries are some of the most

frequent new users of antidumping. If we assume developing country government agencies are
just as likely as developed countries to apply WTO-inconsistent measures,17 we would expect

many of these measures to be challenged at the WTO. While the data in the right hand column of

Table 2 suggest that some developing country use of antidumping is being challenged by WTO

litigation, the number of challenges is small ­ especially when we consider that over half (38 of

69) of the challenges reported in the table were brought up in only two disputes (DS304 and

DS318) against India that never made it past the stage of the EU and Taiwan requesting

consultations. For the most part, the explosion in developing economy use of newly-imposed and

potentially WTO-inconsistent antidumping measures is going unchallenged by WTO litigation.

         There are many possible reasons why developing country use of antidumping is going

unchallenged by formal WTO trade disputes. As a specific example, Bown's (2006a) cross-

country study of determinants of DSU challenges to the use of antidumping presents evidence,

consistent with the concerns raised here, that an antidumping measure is less likely to be

challenged the smaller is the value of export market access lost to the measure. Exporters are

16For a review of some of the jurisprudence, see Cunningham and Crib (2003), Durling (2003) and Sykes (2003).

17There is little ex ante reason to expect that the investigative agencies in developing countries are more likely than
those in the US or EU, for example, to implement a WTO-consistent investigative procedure and apply a WTO-
consistent trade restriction. If anything, given the lack of historical familiarity with the interaction between national
trade remedy laws and GATT/WTO law, one would expect developing countries to be more likely than developed
countries to implement measures that are inconsistent with WTO obligations.


                                                            11

unlikely to spend the resource costs of pursuing WTO litigation if the expected market access

gains from winning the case against a developing country respondent are small.

         Finally, data in Table 4 suggest that some of the major targets of poor country use of

antidumping are exporters in other developing countries. The table presents detailed information

from five of the largest developing country antidumping users regarding the foreign exporters

that they most frequently target with imposition of new trade restrictions. Not surprisingly,

China is each antidumping user's first or second most-frequent target, despite being no higher

than the fourth biggest source of imports for any one of these developing countries. Furthermore,

each of these countries substantially targets other developing country exporters with their use of

antidumping, frequently out of proportion to the country's overall share of the user's import
market, as is the case with China.18


2.2.2 Evidence from the GATS

Other suggestive evidence comes from transition economies that acceded to the WTO after 1995.

Eschenbach and Hoekman (2006) compare GATS commitments with the evolution of actual

policy stances over time in 16 transition countries, using an index of service sector policy

compiled by the European Bank for Reconstruction and Development (EBRD). Over half of the

16 transition countries are economies that had the prospect of accession to the EU. No such

country made very deep commitments in the GATS, and in practice all are much more open than

their GATS commitments suggest. This indicates that these countries did not see a need to use

the GATS as a means to commit to liberalization. Instead, they appear to have relied on other

mechanisms, in particular the EU acquis communautaire, as a focal point and lock-in device.

         In contrast, many of the transition countries that were not EU accession candidates score

high in terms of GATS commitments. This group includes Armenia, Georgia, the Kyrgyz

Republic, Moldova, and the Former Yugoslav Republic of Macedonia. All these countries have

little or no chance of joining the EU in the near future, which presumably helps to explain why

the depth and coverage of their GATS commitments is much greater than that of other transition

economies as well as most WTO members. With the exception of Macedonia, they are

geographically or culturally distant from the EU, have small markets, and were not GATT


18For the reasons posited in Bown and Hoekman (2005), the fact that the exporters are also in developing countries
may contribute to the explanation of why developing country WTO violations are going unchallenged, as was
reported in table 2.


                                                    12

members in 1994. Yet although these countries made many commitments in the GATS, they

score low on the EBRD index of actual services policies. The GATS appears to have been either

a failure for these countries ­ not helping to promote improvements in services policies in the

period following accession ­ or irrelevant in the sense that governments made commitments that

they either did not intend to implement or could implement without a significant change in actual

policies. Thus, for many of the non-EU accession candidates ­ especially those in Central Asia ­

the WTO appears to be a weak commitment device. One explanation is that the small size of the

potential markets concerned generates weak external enforcement incentives.


2.2.3 Evidence that commitments matter

While we are not aware of any empirical studies examining whether the failure to enforce

commitments is a cause of developing countries failing to take on GATT/WTO commitments in

the first place, we can point to research suggesting that taking on commitments itself matters for

a country's economic performance. Subramanian and Wei (2007) show that while the WTO has,

on average, promoted trade of member countries, the size of this impact varies substantially

across countries. From the perspective of this paper, their most compelling result is that WTO

members that did not commit to actual applied tariff reductions in the Uruguay Round saw no
greater average increase in trade than countries that are not even WTO members.19 However,

Francois and Martin (2004) develop a theoretical model to explore the value to a country of

making tariff-binding commitments even if these are higher than the level of the applied tariff.

They show that the value is positive because bindings reduce uncertainty regarding the expected

future value of applied tariffs, which becomes bounded as a result of the binding.




19Subramanian and Wei (2007, p. 173) point out that, "Although developing countries' bound tariffs may have
come down in the Uruguay Round, actual tariffs barely budged...[A]lthough the percentage of tariff lines for which
bindings (commitments) were taken on by developing countries increased by 50 percentage points due to the
Uruguay Round, the actual tariff reductions brought about by the Round were much smaller: only 28 percent of
tariff lines involved reductions in applied tariffs, and on these, the reduction was 8 percent. In other words, if tariff
reductions are calculated on all tariff lines, the reduction would be about 2 percent...The irony relating to [SDT] in
the Uruguay Round was that it was eliminated in areas--such as TRIPs--where maintaining it may actually have
been welfare-enhancing. But [SDT] was preserved in the conventional area of trade liberalization in goods where its
dilution would have been welfare-enhancing."



                                                             13

3        Alternatives for Enforcing WTO Commitments in Poor Countries

As with most systems of justice, one sign that the system is working well is that it isn't being

used at all, i.e., the threat of enforcement alone is sufficient to induce compliance. In the case of

enforcement of trade liberalization, the best approach would be for developing economies to

adopt domestic institutions and create domestic alignment of incentives to minimize the amount

of external enforcement needed. For example, domestic legislators could write trade remedy

statutes that allow domestic consuming industries to have an equal say to the domestic producers
in the process. This structure would permit many of the battles to be hashed out internally.20

         It is unrealistic to expect policymakers and negotiators to write "complete" contracts that
cover all future contingencies without need for some form of enforcement.21 Thus, there will be

instances in which it is efficient for governments to breach the provisions of a trade agreement

contract, in which case a litigation system is needed for mediation. The question is how to do this

efficiently in the context of a self-enforcing trading system where sovereign states are voluntary

participants.


3.1      A "tough love" or outsourcing model of WTO enforcement?

Absent the alignment of interests generated by the optimal construction of domestic institutions

to minimize the need for external enforcement, it is instructive to consider a thought experiment:

what would it take under the current WTO system of dispute settlement and political-economic

incentives to enforce the commitments of poor countries?


20Developing countries would need to do better at creating such a balance via their domestic institutions than has
been the case for many developed countries. For example, in developed economies such as the US and EU there is
no explicit consumer interest provision that serves as a counter-weight when domestic producer interests demand
protection from imports under antidumping or safeguard laws. One approach would be to adopt the principle of
"direct effect" through which domestic actors could challenge their government's compliance with international
obligations in domestic courts. A related approach, adopted by many bilateral investment treaties, allows domestic
economic actors (e.g., firms) to sue a foreign government directly for failure to comply with investment treaty
obligations, thus bypassing the need for the domestic actor to convince the domestic government to act on its behalf,
as is currently the situation at the WTO. Levy and Srinivasan (1996) argue that if a domestic industry would have
automatic ability to file such disputes (without its government acting as a buffer) this might adversely affect the
obligations the domestic government is willing to take on in prior stage negotiations. As both approaches require
systemic changes to either WTO dispute settlement rules or domestic legal interface with WTO law, we do not
pursue a discussion of the issues raised by them.

21Indeed, Horn, Maggi, and Staiger (2006) present an economic theory examining elements of the GATT/WTO
agreements from the perspective of an incomplete contract. Including safeguards in the GATT/WTO as an "escape
valve" is one place where scholars have noted the importance of allowing for an ex ante exception that there are then
economic efficiency reasons against using ex post. See the discussions in Hoekman and Kostecki (2001) and also
Bagwell and Staiger (2005).


                                                           14

          Since the WTO requires government-to-government adjudication of issues, there must be

a WTO member willing to challenge a poor country through the DSU in order to generate the

implementation of negotiated commitments. As DSU litigation is resource costly, this WTO

member needs to be relatively wealthy. Moreover, since such litigation against a poor country is

likely to have some political costs, the WTO member would need a flawless reputation as a

development-friendly country so it can credibly deflect allegations that it is acting in a self-

serving manner. It also cannot have a substantial market access interest in the developing country

respondent, again to make clear that its complainant role in the dispute is for non-selfish
reasons.22 For the purposes of compensation/retaliation, this hypothetical country will also need

to import from the developing country respondent so it has some capacity to make credible

retaliatory threats, as this is needed to mobilize export interests in the developing country to
convince the domestic government to live up to its import market commitments.23

          Not surprisingly, few countries would satisfy all of these criteria. Switzerland could be

one of the closer candidates, so for simplicity we refer to this as the "Swiss Model" of enforcing

developing country WTO commitments. While this clearly will never happen, it is important to

recognize that the current WTO system requires something like this to assure enforcement of the
commitments of poor countries.24


3.2       Bolstering the current approach by changing incentives?

Even without any radical systemic changes to the DSU or a WTO member willing and able to

play the required role in the "Swiss Model," there will be some cases involving poor country

respondents that do make it to the WTO. For example, to the extent that the adversely affected


22This ignores any DSU requirements/conditions/expectations that complainants need to have a market access
interest at stake.

23This relates to some extent to the issues raised in Maggi (1999), though Maggi's point was to illustrate that under
the WTO as a multilateral institution, multilateral retaliation could be used to enforce lower cooperative tariffs in the
presence of bilateral imbalances of power ­ something that economists have been proposing for decades. In our
context, the bilateral "imbalance" is the inability of one WTO member to challenge another, perhaps because of
political or resource cost relative to market access gains. Another country could work on its "behalf" to lead to an
improved outcome. This is also related to the idea of tradable retaliation rights discussed in Bagwell, Mavroidis and
Staiger (2006).

24Furthermore, in the more general equilibrium sense, when a "Swiss model" country is considering where to
allocate its development assistance resources, it is not clear that the returns to DSU litigation are larger than the
returns the country would achieve by choosing to invest in development somewhere else.



                                                            15

foreign exporting country is another developing country, thus reducing the political costs relative

to a potential dispute involving a developed country as complainant, there are some resources

available to help that poor country complainant pursue a WTO case. There is the Advisory

Centre on WTO Law (ACWL) and also the possibility for private sector engagement by pro

bono attorneys and/or non-governmental organizations (NGOs) that may be willing to assist a
developing country government in pursuing its case at the WTO.25 However, as we describe

elsewhere in substantial detail (Bown and Hoekman, 2005), at best this is only a partial solution

to the problem. Furthermore, depending on the form of the legal assistance and the funding

source or needs of the provider, the resulting bias in the distribution of cases brought forward for

litigation might not necessarily be in alignment with the welfare interests of the developing

countries involved.

        An alternative could be to pursue the idea of a "small claims" procedure in the WTO for

cases involving relatively small amounts of trade and thus not giving rise to a great enough

incentive to use WTO dispute settlement. The premise is to put in place simplified procedures so

as to reduce the costs associated with going to the WTO. As discussed in depth by Nordström

and Shaffer (2007), there are a number of challenges that will need to be addressed in

operationalizing this idea, including obtaining agreement on who has access, for what types of

cases, and ensuring that a two-tier system does not give rise to inconsistent case law.

        Another option could be for organizations and institutions outside the WTO to play a role

in enforcing WTO commitments. Perhaps the most obvious candidates are the IMF and World

Bank, which could in theory make the provision of financial assistance conditional upon the

enforcement of WTO obligations. In practice this is not possible, as the IMF and World Bank

are precluded from imposing such "cross-conditionality" by a provision inserted into the Final

Act of the Uruguay Round agreement at the insistence of developing countries seeking to

preclude exactly such issue linkage. Furthermore, this prohibition was supported by the agencies

concerned, to avoid being required to "enforce" WTO rules and disciplines when these might not




25Indeed, in one of the few disputes in which a low income economy was challenged as a respondent (India - Anti-
Dumping Measure on Batteries from Bangladesh, DS306), the complainant Bangladesh was another low income
economy that received legal assistance from the ACWL (ACWL, 2006).



                                                        16

be considered priority areas for action by the governments concerned. However, such a
constraint is not binding upon bilateral donors.26

         Most far-reaching in terms of changing the status quo would be to enhance the role of the

WTO Secretariat in enforcement of commitments by giving it a mandate to prosecute cases (e.g.,

Hoekman and Mavroidis, 2000). This would deal with the incentive problems associated with

both the costs and expected benefits of bringing cases that afflict the concerned firms and

governments. This option is politically infeasible to implement, as most WTO members do not

desire to give the Secretariat such a mandate or the tools to execute it. However, some steps in

this direction, taking the form of enhancing the capacity of the WTO to identify instances of non-

compliance, may be feasible. We discuss these below.


4        Transparency as a Substitute for "Tough Love"

The problems and failures with reliance on formal dispute settlement procedures to enforce poor

country commitments imply a need to consider alternative mechanisms that induce compliance

with WTO obligations. In order to be effective, any such mechanism must target domestic

constituencies and the membership of the WTO as a whole. Greater transparency is critical to

prevent capture of policies by interest groups, to make policies contestable, and to give both

winners and losers a greater voice in policy formation. There is thus a role for international

institutions and development assistance to intermediate through the creation of procedures that

allow affected groups with a trading interest and their domestic governments to learn about the

effect of policies and the trade-offs of various policy options. With some adaptation, there is

significant potential for stronger transparency and communication mechanisms to help address

the economic problems associated with the weak incentives for enforcement associated with

current dispute settlement procedures.


4.1      The WTO Trade Policy Review Mechanism

The Trade Policy Review Mechanism (TPRM) is the primary vehicle used by WTO members for

periodic review of trade-related policies, the frequency of reviews depending on the relative


26External conditionality can be effective. Wei and Zhang (2006) present evidence that external interventions (IMF
trade reform conditionality) are associated with increased trade in developing countries. They find a positive average
effect of trade reforms on trade openness of developing countries, though the effect appears driven by countries
willing to reform.


                                                         17

importance of a member in world trade. While large traders such as the EU and the US are

reviewed on a bi-annual basis, some developing countries and transition economies have yet to

be reviewed more than 10 years after the entry into force of the WTO. Given that it is poor

countries that presumably would benefit the most from a review, the current system's periodicity

and sequencing may be inappropriate. Clearly this is also true from the perspective of the

enforcement problem that is the subject of this paper.

        By the end 2005, the TPRM had conducted 212 reviews since its formation, covering 123

out of 148 Members at that time (WTO, 2005). A total of 23 such reviews were completed for

least developed countries between 1998 and 2005. Such reviews have increasingly performed a

technical assistance function, thus also aiming to increase the governments' understanding of

prevailing trade policies and their relationship with the WTO Agreements. Since 2000, the

review process for a least developed country (LDC) includes a three-to-four-day seminar for

local officials on the WTO and the trade-policy review exercise. This could be expanded to

include greater engagement with the private sector and local think tanks, and more involvement
of such groups in the preparation and dissemination of the analysis.27

        While there are therefore welfare-motivated arguments for a more frequent and in-depth

analysis of trade policies in all WTO members, we argue that this is especially the case for

LDCs, as they do not face the same level of extra-WTO scrutiny from academics, think tanks and

research institutes that economies such as the US and EU face with respect to their trade policies.

Nevertheless, we recognize the political limitations of any proposal that the WTO take on the

role of initiating member country-specific scrutiny. In the next section we consider ways of

reforming the TPRM to induce international cooperation that may make additional monitoring

more politically palatable. Then, in the following section, we propose a role for additional

monitoring and cooperation that would take place outside of the WTO framework.

        An expanded role for the TPRM may be politically palatable to the membership if it

actually moves beyond simple monitoring to create a focal point for a constructive, as opposed to

an adversarial, interaction between governments. A TPRM that acts as an intermediary by not

only collecting information, but also assessing the effects of policies within and across countries,


27One might ask: why the WTO, and not other international organizations? One answer is that trade policy is not a
consistent focus of the activities of international financial and development organizations. A major advantage of the
WTO is that trade and trade-related policies are its core business.



                                                            18

would then be more likely to provide to trade constituencies useful information that will help

identify national priorities for domestic reform. Such a constructive approach could do much to

raise the domestic profile of the trade agenda in developing countries as well as better focus

resources (development assistance) across countries by helping to identify where public
investments and international assistance are most needed.28

        Furthermore, if the process also included monitoring the delivery and effectiveness of the

development assistance targeted to address the trade-related priorities of the country under

review, the TPRM process could help make WTO deliberations and "enforcement" more

politically balanced. Rather than an adversarial approach that solely challenged the policies and

market access granted by a specific Member, the debate and discussion would also focus on what

richer Members could and did do to assist the country in question, both through market access-

related policies and official development assistance.

        A 2006 WTO taskforce on "aid for trade" proposed more regular monitoring of the

development assistance that Members provide to developing countries in the trade area, and

indeed it also suggested the TPRM as a mechanism that could do deliver this function (WTO,

2006c). It is therefore not just an academic notion that formal dispute settlement as an

enforcement tool is too narrow an approach and needs to be complemented by "carrots" such as

development assistance.


4.2     The WTO committee structures and "soft law" forms of cooperation

As stressed in a number of analyses of the WTO as an institution (e.g., Hoekman and Kostecki,

2001), a major role of the WTO is to provide a forum for communication and interchange on

trade-related policies. Many potential disputes and problems relating to implementation of

agreements are raised and addressed in the many committees and groups that deal with the

substantive policy areas covered by WTO agreements. The TPRM is just one input into such

regular exchange of information, albeit the most wide-ranging in terms of policies covered. The

various bodies put in place by and supported by the WTO that deal with the various agreements

are mechanisms through which governments can put problems on the table, raise concerns and

seek assistance. They also provide fora in which regulators and policymakers can learn from

each others' experience (Hoekman, 2005; Scott, 2006).


28See Hoekman and Mattoo (2007) for a more extensive discussion of this idea with respect to services.


                                                    19

4.3     A commitment to transparency outside of the WTO

Political realities may limit how much monitoring and cooperation/communication can actually

take place within the WTO itself. Therefore, greater efforts to ensure transparency should go

beyond the WTO. In this section of the paper we consider who else could be involved in this

monitoring function before then turning to a discussion of what information is most useful for

such organizations to provide.

        Research institutes, think tanks, and public interest bodies should engage in monitoring

and evaluation of policies at the country level. Such entities could also explore the economic

and social aspects of particularly contentious issues or proposed areas for action at the WTO or

in a preferential trade agreement context (Hoekman and Mavroidis, 2000), helping to generate

information and build consensus on policy priorities. A regional entity that can coordinate with

national think tanks and institutes may be the best model for this role. A combination of an

independent regional "hub" institution that provides research support to a network of national

think tanks and governments and works with them would help reduce the overhead costs of

national entities by providing access to inputs such as databases and specialized information.

        One of the lessons that can drawn from the World Bank report Doing Business is that

transparency can have a powerful effect in focusing the attention of policymakers on specific

issues, especially if pursued in a way that generates data that allow cross-country comparability

and monitoring of changes over time. Doing Business has become an influential focal point for

national policymakers, in part because it generates data on specific measures that resonate with

firms and industries in the private sector, as well as with government officials. Examples are the

number of days it takes a package to clear customs, or the time it takes for a standardized

container to move from the factory floor to the nearest port.

        When it comes to the issue of trade policy enforcement and surveillance of WTO-type

commitments, it is important to recognize that such monitoring needs a substantive focus that

goes beyond a technical analysis of legal compliance. Making trade agreements relevant for poor

countries requires a convincing argument as to how WTO commitments can raise economic

welfare. While it may be too difficult to accurately and expeditiously relate a particular policy

change to changes in economic welfare, a first step would be calculation and regular reporting of

simple measures of industrial structure and trade performance used to characterize the



                                                 20

"conditions of competition" that prevail in an economy. Although such structure and

performance data are not policy-specific, they can be employed to bolster monitoring and

surveillance (Djankov and Hoekman, 1998) provided by the WTO. This type of outcome

monitoring is distinct from an evaluation of the impact of specific policies as it makes no attempt

at matching outcomes to policies. However, it is a useful complement to policy monitoring and

assessment by providing information on the state of trade and competition.

       Indicators such as import penetration ratios, changes in market structure and the size

distribution of firms, measures of entry and exit over a given period, domestic industry

concentration ratios or Herfindahl indices, and data on trends in price-cost margins all suffer

from the same drawback: it is difficult to relate any of these measures unambiguously to a

specific policy or change in that policy. Nonetheless, such measures provide information on the

effect of the set of prevailing policies and have the virtue of being easy to calculate. They also do

not require the use of models or calculation of indices that require (political) acceptance of a set

of underlying assumptions. If used in regular multi-country exercises on the basis of identical

industry classifications, the resulting panel datasets can be used for analytical purposes as well as

cross-country comparisons.


5.     Conclusion

Developing countries are rarely challenged in formal WTO litigation for failing to live up to

WTO commitments and obligations. While this lack of enforcement activity can be explained in

part by the fact that developing countries have made fewer commitments than developed ones,

there are numerous WTO disciplines independent of tariff bindings that apply to developing

countries. These include disciplines ranging from rules on products standards to customs

valuation. The weak incentives for trading partners to enforce commitments reduce the relevance

of the WTO for trade constituencies in all countries, but especially those in developing

economies.

       While the first-order cost of failing to enforce WTO commitments in poor countries falls

on consumers within these countries who do not realize the economic welfare gains associated

with importing, there are dynamic and externality costs as well. The enforcement failure likely

has a dynamic cost of creating disincentives to negotiate additional, welfare-enhancing WTO

commitments. First, there is little incentive for constituencies in the developing country that

might gain from trade to organize politically in order to mobilize support for commitments.


                                                  21

Second, there is little incentive for foreign governments to negotiate reciprocal concessions with

even large developing countries in the first place, even if this will help them escape from a

terms-of-trade driven prisoner's dilemma, if the resulting political environment does not

accommodate the need for enforcement. Finally, failure to enforce poor country WTO

commitments also ignores the identity of the potential foreign beneficiaries associated with

increased enforcement. For example, there is evidence to suggest that other poor countries may

be among the major exporting producers that stand to benefit from the increased market access

associated with the liberalization commitments that need to be enforced. In such instances, the

failure to enforce a poor country's WTO commitments on the import side may have a

disproportionately adverse effect on poor country exporters as well.

         The failure to challenge poor countries for not abiding by WTO rules and commitments

may also indicate that these countries do not realize the positive externality benefits associated

with full participation in the institution. First, involvement as a respondent in WTO dispute

settlement may induce learning and lead the country to more active engagement in other disputes

as a complainant or interested third party in defending export market access interests. Second, a

successful challenge of a developing country may result in the government undertaking a public

effort to comply with WTO commitments, which may positively affect the probability that other

countries also conform to WTO rulings, thus benefiting the developing country's own export

market access interests. Managing a balanced portfolio of WTO litigation ­ undertaking some

cases from which the country will benefit (by legally winning) as complainants as well as being

confronted in other cases from which the country will benefit (by legally losing) as respondents ­

can help governments to maintain public support for WTO engagement.

         The basic motivation for this paper is that in the absence of credible enforcement, trade

interests in the countries signing agreements do not have incentives to push for liberalization

which attenuates the positive dynamics of reciprocity. The WTO's reciprocity principle is not

just limited to negotiating rounds of liberalization ­ it also plays an important role after the

negotiations are done. Small, poor countries do not have much negotiating leverage, as
reciprocal exchange of market access concessions is not a game they can play effectively.29 The


29This was one of the rationales for SDT for developing countries. Given that small countries cannot negotiate
access to export markets, the MFN principle is particularly important for them in generating export benefits from
multilateral trade rounds. As this may not generate better access in products that matter to developing countries, the
GSP can be seen as a mechanism to enhance such access.


                                                          22

weakness of reciprocity dynamics is sometimes argued to imply that the major source of

potential gain for many small developing countries is the use of trade agreements as credibility-

enhancing or lock-in mechanisms. But this rationale may be weaker in practice than often

claimed in the literature for the same market access-related reason: because they are small and

poor, credibility cannot derive from the threat of external enforcement of trade agreements by

trading partners. Making the WTO DSU mechanism work for these countries requires that

foreign governments deliberately pursue enforcement actions even if they have no market access

incentive to do so. The likelihood that countries can pursue such "tough love" in a credible

manner is low, and the political feasibility of this possibility appears to be very limited.

       Credibility must therefore be sought in other instruments, such as greater and more

effective transparency mechanisms. A major advantage of additional monitoring and analysis of

developing country policies that affect trade is that this can be a valuable input into improved

domestic policies. What is needed is that the constituencies in these countries see implementation

of commitments as being in their interest. Often that will require a period of gradual learning

about the benefits and the costs of different regulatory approaches, interactions with other

countries and learning from their experience, and building up the required institutions needed to

enforce the regulations that are developed. Rather than rely on binding commitments and the

threat of the DSU, an approach that focuses on transparency and analysis of the effects of

policies in such regulatory areas may do more to bolster ownership and identify where

multilateral commitments can be beneficial. An additional argument in favor of this approach is

the one stressed in this paper: the threat of formal DSU proceedings often may not be perceived

as credible.



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                Table 1. WTO Trade Disputes 1995-2006, by Income Group


WTO Member                                                   Disputes as          Disputes as
                                                            Respondents         Complainants


Total low-income economies                                        20                   21

   Bangladesh                                                           0                   1
   India                                                              18                  17
   Pakistan                                                             2                   3

Total lower-middle-income economies                               46                   65

    Brazil                                                            13                  22
    China                                                               4                   1
    Colombia                                                            2                   4
    Dominican Republic                                                  3                   0
    Ecuador                                                             3                   3
    Egypt                                                               4                   0
    Guatemala                                                           2                   6
    Honduras                                                            0                   6
    Indonesia                                                           4                   3
    Nicaragua                                                           2                   1
    Peru                                                                4                   2
    Philippines                                                         4                   4
    Sri Lanka                                                           0                   1
    Thailand                                                            1                 12

Total upper-middle-income economies                               69                   59

Total high-income economies                                       217                  235


Total                                                             352                  380

Notes: WTO trade dispute from www.wto.org. The income group categories are taken from the World
Bank's classification based on 2005 GNI per capita calculated using the World Bank Atlas method.
The groups are: low income, $875 or less; lower middle income, $876 - $3,465; upper middle income,
$3,466 - $10,725; and high income, $10,726 or more.




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  Table 2. Developed and Developing Country Use of Antidumping and DSU Challenges, 1995-2005



                                          Number of New              Number of New          Number of Challenges
                                            Antidumping               Antidumping           to New Antidumping
                                           Investigations,         Measures Imposed,        Investigations Under

Country                                       1995-2005                 1995-2005                  the DSU


Total developed economy
antidumping users                               1169                       687                        66

    Australia                                    179                        67                        1
     Canada                                      134                        84                        1
     European Union                              327                       219                        5
     United States                               366                       234                       58*
     Other developed economies                   163                        83                        1

Total developing economy
antidumping users                               1671                      1117                        69

     Argentina                                   204                       147                        4
     Brazil                                      122                        66                        1
     China                                       123                        68                        0
     Colombia                                     27                        12                        0
     Egypt                                        50                        30                        1
     India                                       425                       316                       39**
     Indonesia                                    60                        27                        0
     Malaysia                                     35                        25                        0
     Mexico                                       85                        76                        7
     Pakistan                                     12                         8                        0
     Peru                                         60                        40                        2
     Philippines                                  17                         9                        1
     South Africa                                197                       113                        5
     Thailand                                     34                        27                        1
     Turkey                                      101                        86                        1
     Venezuela                                    31                        25                        1
     Other developing economies                   88                        42                        6




Total                                           2840                      1804                       135


Note:  Data for the initiations and measures used in this table compiled by the author from WTO (2006a,b). The data
       on      WTO        disputes    is     compiled       by     the     author      and    is     available    as
       http://people.brandeis.edu/~cbown/global_ad/data_files/DSU-WTO-v2.1.xls in Bown (2006b). *The 58 US
       antidumping investigations were challenged under 26 different case groupings by 10 different countries. **The
       39 Indian antidumping investigations were challenged under three different DSU case groupings by 3 different
       countries­ the EU (DS304) challenging 31 investigations, Bangladesh (DS306) challenging 1 investigation and
       Taiwan (DS318) challenging 7 investigations.




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                  Table 3. WTO Trade Disputes over Trade Remedies, 1995-2006



Respondent Trade Policy under Dispute                      Disputes Initiated               Disputes Initiated
                                                       Between 1995 and 1998            Between 1999 and 2006*



Antidumping law, practice or measure*                               13                                53

Countervailing duty law, practice or measure                         4                                13

Other trade remedy law, practice or measure
    (e.g., safeguards)                                               4                                30

Total trade remedy disputes                                         21                                96




Other non-trade remedy disputes                                   133                                102




Total disputes (352)                                              154                                198




Note:  *For a dispute challenging more than one type of trade remedy (e.g., both an imposed antidumping measure and
       a countervailing duty), we avoid double-counting by entering it as challenging one type of trade remedy only
       (typically, an antidumping measure).




                                                         29

                   Table 4. Characteristics of Five Developing Country Users of Antidumping, 1995-2004



 AD-imposing         Exporting country         Share of import         Antidumping investigations      Investigations resulting in

 country             target                 market in 2000 (rank)            (share of total)           measures (share of target
                                                                                                        country's investigations)


 Argentina     1.    China                         4.4% (4)                    38 (22%)                     33    (87%)
               2.    Brazil                        25.9% (1)                   33 (19%)                     22    (67%)
               3.    EU                            22.9% (2)                   21 (12%)                     10    (48%)
               4.    South Africa                  0.3% (23)                   10 (6%)                      6     (60%)
               5.    Korea                         2.1% (8)                    10 (6%)                      8     (80%)
                     All other                     44.3%                       85 (48%)                     58    (68%)

                     Total                         100.0%                      176                          124 (70%)

 Brazil        1.    China                         2.3% (8)                    24 (19%)                     18    (75%)
               2.    EU                            25.0% (1)                   18 (14%)                     13    (72%)
               3.    USA                           23.2% (2)                   18 (14%)                     7     (39%)
               4.    India                         0.5% (25)                    8 (6%)                      5     (63%)
               5.    South Africa                  0.4% (27)                    5 (4%)                      3     (60%)
                     All other                     48.7%                       56 (43%)                     16    (29%)

                     Total                         100.0%                      129                          62    (48%)

 India         1.    China                         3.0% (5)                    66 (19%)                     59    (89%)
               2.    EU                            20.8% (1)                   49 (14%)                     40    (82%)
               3.    Taiwan                        1.0% (16)                   28 (8%)                      22    (79%)
               4.    Korea                         1.8% (11)                   25 (7%)                      21    (84%)
               5.    USA                           6.0% (3)                    19 (5%)                      15    (79%)
                     All other                     67.5%                       164 (47%)                    135 (82%)

                     Total                         100.0%                      351                          292 (83%)

 Mexico        1.    USA                           73.3% (1)                   21 (28%)                     16    (76%)
               2.    China                         1.7% (6)                    13 (17%)                     12    (92%)
               3.    EU                            8.5% (2)                     7 (9%)                      2     (29%)
               4.    Russia                        0.0% (41)                    6 (8%)                      5     (83%)
               5.    Ukraine                       0.0% (35)                    5 (7%)                      5     (100%)
                     All other                     16.6%                       23 (31%)                     15    (65%)

                     Total                         100.0%                      75                           55    (73%)

 Turkey        1.    China                         2.4% (5)                    44 (44%)                     40    (91%)
               2.    Taiwan                        1.0% (14)                   11 (11%)                     10    (91%)
               3.    Thailand                      0.4% (25)                   8 (8%)                       6     (75%)
               4.    Korea                         2.2% (7)                    6 (6%)                       5     (83%)
               5.    India                         0.8% (18)                   6 (6%)                       5     (83%)
                     All other                     93.2%                       25 (25%)                     19    (76%)

                     Total                         100.0%                      100                          85    (85%)


Note: Antidumping data compiled from Bown (2006b). Import data from COMTRADE. *For consistency, this table only allows for one
      "EU" entry for each product-specific investigation, hence total number of investigations and imposed measures may differ from
      table 2 due to aggregation of EU member cases per investigation.




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