NON COMPLIANCE CLAIMS IN THE WTO DISPUTE SETTLEMENT AND LESSONS FOR VIETNAM

MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY DISSERTATION NON-COMPLIANCE CLAIMS IN THE WTO DISPUTE SETTLEMENT AND LESSONS FOR VIETNAM Major: Master of International Trade Policies and Law TO THAI NINH Ha Noi - 2017 MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY DISSERTATION NON-COMPLIANCE CLAIMS IN THE WTO DISPUTE SETTLEMENT AND LESSONS FOR VIETNAM Major: Master of International Trade Policies and Law Full name: To Thai Ninh Supervisor: Ph.D Nguyen Ngoc Ha Ha Noi - 2017 TABLE OF CONTENTS TABLE OF CONTENTS i ACKNOWLEDGEMENT ABBREVIATIONS INTRODUCTION 1 Literature review Objectives of the thesis 3 Research questions 4 Methodology Outline of the thesis CHAPTER 1: OVERVIEW OF NON-COMPLIANCE CLAIM IN THE WTO DISPUTE SETTLEMENT SYSTEM I Functions and principles of WTO Dispute Settlement System WTO dispute settlement mechanism - Introduction Preserving the rights and obligations of WTO Members Clarification of rights and obligations through interpretation II WTO DSU procedures and Compliance stage Consultation 11 Good Offices, Conciliation and Mediation 13 Panel Procedures 14 Appellate Body Review (Appeal) 19 Compliance stage: Remedies 23 CHAPTER 2: NON-COMPLIANCE CLAIMS IN THE WTO DISPUTE SETTLEMENT: SCRUNITY OF RETALIATION 26 I Introduction to WTO DSU Remedies 27 Comparison of Final Remedy’s and Temporary Remedies’ 28 Other Dilemmas Resulting from the Implementation of Retaliation 30 II The effectiveness of WTO Dispute Settlement System and the purpose of Retaliation 36 i The Effectiveness of WTO Remedies 36 Retaliation and its purposes 37 III Options to improve remedies 40 Retroactivity of remedies 42 Compensation as a possible remedy option 44 Retaliation 47 CHAPTER 3: PARTICIPANT OF VIETNAM TO WTO DISPUTE SETTLEMENT SYSTEM AND LESSON FOR VIETNAM 53 I Introduction to ongoing cases of Vietnam 53 Vietnam- United States: Anti-Dumping Measures on Certain Shrimp from Viet Nam (DS404) 53 DS 429: United States - Anti-Dumping Measures on Certain Frozen Warm water Shrimp from Viet Nam 55 DS496: Vietnam challenged Indonesia regarding a safeguard measure on imports of certain flat-rolled iron or steel products 56 II Solutions for Vietnam 57 Capacity building through extended third party rights 58 Making cross-retaliation more readily available for Vietnam 59 Retaliation with the purpose of inducing a mutually agreeable solution – Second and last best option for Vietnam 59 CONCLUSION 64 REFERENCE LIST 66 ii ACKNOWLEDGEMENT I would like to express the sincerest thanks to my supervisor, Dr Nguyen Ngoc Ha, whose supervision, encouragement, and patience have given me the confidence to expand my humble understanding of the subject into this 55page thesis Without his excellent supports and instructions, I could never complete this academic research work I would like to express my special thanks to Prof Henry Gao, Prof Claudio Dordi, their lectures and valuable advice gave me the inspiration to develop this subject into thesis Also, this paper would not have been possible without the valuable legal resources provided by Mr Claudio Dordi and Mrs Pham Thi Van Thanh I am indebted to the Vietnam Competition Authority, and all of my colleagues there for providing me the best facilities and professional inspiration in the completion of the thesis I would also like to thank my teachers at the Faculty of Post-Graduation, Foreign Trade University of Vietnam who helped me build up the knowledge and enthusiasm in the field of international trade law Last but not least, I would like to express my deepest gratitude to my family, who never stop supporting me throughout the way and offering me the most serene place in the world Despite all the aforementioned, any errors in this paper remain my own ABBREVIATIONS AB Appellate Body AD Antidumping ACWL Advisory Centre on WTO Law DOC U.S Department of Commerce EC European Community EU European Union DSB Dispute Settlement Body DSU Understanding on Rules and Procedures Governing the Settlement of Disputes DSM Dispute Settlement Mechanism GATS General Agreement on Trade in Services GATT General Agreement on Tariffs and Trade LDCs Least Developed Countries NGO Non-Governmental Organization NME Non-market Economy POR Period of review TRIPS Trade-Related Aspects of Intellectual Property Rights US United States VCCI Vietnam Chamber of Commerce and Industry VASEP Vietnam Association of Seafood Exporters and Producers WTO World Trade Organization INTRODUCTION Literature review Apart from many press articles, publications of organizations and individuals about the perspective of developing countries in the WTO dispute settlement system, since the participation of Vietnam into WTO, there are some thesis, articles, research about the position of Vietnam in the system Such studies mainly focus on examining the challenges and opportunities that Members face in dealing with compliance issues, the lesson learned mostly from the theoretical aspects The issue of compliance with WTO Dispute Settlement decisions has been the focus of increasing attention by international trade experts As such, there are a number of articles in which such theme is specifically addressed Most articles, however, albeit excellent sources of information, appear to fall short of offering a comprehensive analysis of the compliance issues facing the WTO Even more rare – possibly inexistent – is explicit reference to State administration and enforcement in theories of compliance, a reflection of a divide that appears to still persist between scholarship and practice In any case, McGivern’s views are perhaps the most thorough analysis of the issue of compliance1 In this article, McGivern explains the logic behind retaliation as well as its pros and cons, identifies cases and examples where there have been problems and propose different ways of achieving remedies for non-compliance, examining different methods such as political pressure, compensation or fines, carousel retaliation2, collective retaliation3 and punitive retaliation4 The author concludes by stating that the optimism of some that retaliation would serve as a powerful tool of compliance was mistaken and that the binding nature of dispute settlement decisions under the umbrella of the WTO is no assurance of compliance as the systems has its Brendan P McGivern, page 144,145, “Seeking Compliance in WTO rulings: Theory, Practice and Alternatives”, JSTOR, 2002 Carousel retaliation logic prescribes the rotation of products subject to sanctions Collective retaliation would allow all countries to retaliate the losing party Punitive retaliation prescribes punishing the losing party in more than just the level of nullification or impairment sustained by the complaining party limitations5 Unfortunately, the author does not offer an opinion of which course of action should be taken The study of compliance with WTO DS decisions is one that runs in parallel with the aforesaid ones Nevertheless, there is a variety of studies on retaliation, which is one of the facets of present work as well as a small number of articles that approach the issue of compliance per se, one of which is the yearly statistical of disputes brought before the WTO as below: Table1: Evolution of the number of complaints brought before the WTO’s DSM Year Complaints Year Complaints 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 25 39 50 41 30 34 23 37 26 19 11 20 13 19 14 17 27 20 14 13 13 Source: WTO DSB To the interest of the thesis at hand is the relation found between the number of complaints brought into the DS mechanism and the number of Article 22 of non-compliance, which, as previously explained, are formed when there is disagreement over compliance with decisions and rulings of the Dispute Settlement Body The figures involving Article 22 until 2015 are as in table below: Table2: Number of Article 22 retaliation awards Year Case 1999 2000 2003 2004 2009 2013 2015 1 Source: WTO DSB Brendan P McGivern, “Seeking Compliance in WTO rulings”, JSTOR, 2002, p157 These numbers and what they mean will be object of greater analysis at a later stage of this work by analyzing non-compliance cases, it will be possible to draw a conclusion on whether there is a problem with compliance in the WTO, thus answering one of the research questions of this thesis The second question – if management is preferred to enforcement as to induce compliance – of this thesis will be answered by analyzing official WTO Dispute Settlement reports, case reviews and articles on retaliation and compliance written by different authors The third question to this thesis – how to improve the compliance issues of Dispute Settlement mechanism – will be drew out the lessons for Vietnam in its on-going cases Objectives of the thesis The WTO dispute settlement system is undoubtedly the most successful and widely-used inter-governmental dispute settlement system in the field of trade The participation of developing countries in the WTO Dispute Settlement is of great interest to many academic writers as lawyers, economists, and political scientists Among of them, the issue of noncompliance is also the most interesting topic are discussing as well as on the table for the future of Dispute Settlement Mechanism of the WTO This thesis is not to propose changes in the DSM to resolve this gap of the WTO DSM It is focus on certain non-compliance cases to figure out the current problems of the DSM of which have been taken the legal rights of certain Members, particularly developing members Vietnam is not an exception especially when it is a new comer in this system and now having on-going cases within this auspice Studying and drawing lessons from the specific WTO dispute settlement cases to adjust its rules and regulations are necessary to be able to adapt to this playground The lack of implementing rules and regulations cannot be used as an excuse By examining the working mechanism of the WTO Dispute Settlement, particularly compliance stage, the last purpose of this thesis is to determine the most suitable strategy that Vietnam should use in dealing with the WTO Dispute Settlement System This thesis provides the updated information on the participation Vietnam in the WTO DSS Ultimately, this thesis is intended not simply as an academic exercise, but also as a practical policy tool Research questions Base on the above mentioned ambition, this thesis is intended to give answers to the following research questions: The problem is that neither the DSU nor the WTO treaty provisions stipulate explicitly the purpose of retaliation? - Whether or not WTO retaliation is an effective instrument? How does Vietnam participate in the WTO Dispute Settlement System and challenging for its implementation stage? Which strategies for Vietnam to be highest benefit from the WTO Dispute Settlement System by using reasonable strategy in implementation stage? Methodology The thesis will use the following research methodologies: Firstly, doctrinal research will be employed This research will involve the summary, collation, analysis and/or synthesis of existing research or documents As a result, the relevant regulations relating to the dispute settlement under the WTO will be reviewed and analyzed Relevant text books, articles, reports will also be consulted Finally, some comparative researches involving the laws and experiences learn from WTO cases related to non-compliance issue also addressed Outline of the thesis 10 The thesis is structured with three chapters: 11 The first chapter outlines the structure and operation of the WTO trade dispute settlement system The section shows the difference of WTO DSS in comparison with the GATT Dispute Settlement System in the context of the shortcomings of the previous GATT dispute settlement system and the advantages of the WTO DSS Chapter also summarizes the key articles and procedures of the DSU 12 The second chapter will get into detailed analysis of certain main 134 Viet Nam claims that the measures are inconsistent with: Articles I:1, XIX:1(a) and XIX:2 of the GATT 1994; and Articles 2.1, 3.1, 4.1(a), 4.1 (b), 4.1(c), 4.2(a), 4.2 (b), 4.2(c), 12.2 and 12.3 of the Agreement on Safeguards 135 As the both parties could not solve the differences in the consultation stage On 17 September 2015, Viet Nam requested the establishment of a panel At the DSB’s meeting on 28 September 2015, a panel was established 136 According to Mr Bach Van Mung – Director General of Vietnam Competition Authority (an agency directly in charge of dealing with those disputes) in an interview with Tuoi Tre newspaper on 06/09/2015, following the failure in the bilateral consultation process, Vietnam decided to take the case to the WTO as Vietnam found that such unsatisfactory taxation imposition of Indonesia would create bad influence on exports of flat rolled products of iron or non-alloy steel from Vietnam 137 The Vietnam Steel Association (VSA), in its effort to protect the local steel exporters, sent a written request to the ministry to bring the case to the international trade management body According to them, taking the case to the WTO will help to protect the coated steel sheet industry of Vietnam from the forthcoming investigations of Indonesian market and also other export markets, and spare them sky-high tax rates from the very beginning 138 In particular, bringing the case to the WTO sends a message to other trade partners worldwide that the government of Vietnam is willing to protect the interests of local exporters in confronting with trade defense measures from other countries II Solutions for Vietnam 139 Two out of three ongoing cases148 in which Vietnam has played its role as a complainant, they has already came to implementation stage of which the WTO Panels awarded that the respondent has violated its obligations under certain WTO cover agreements 140 To date, those two cases, in which Vietnam has awarded as the winner, however has not yet fully been brought into compliance with WTO rulings 148 DS404 and DS429 57 and recommendations by the respondent despite the facts that the reasonal period of time has almost run out 141 This issue raises the question of how should Vietnam prepare for this situation when the non-compliance issues come to its dispute 142 The following solutions, in the point of author, should be considered as the possible ways for Vietnam to resort on when it deals with non-compliance issues Capacity building through extended third party rights 143 Most developing countries in general and Vietnam in particular lacks the knowledge and expertise regarding Article 22.6 arbitration because they rarely get involved in this proceeding, where DSU compliance and remedy provisions are interpreted and jurisprudence developed One way for capacity building with regard to Article 22.6 arbitration is to provide these countries with opportunity to acquire information and first-hand experience in this proceeding by participating as third parties Third party status may be prerequisite upon the condition that the party concerned must also participate as an original third party from the beginning, or as a co-complainant A third party should have access to the submissions of the parties to the dispute It should be able to attend substantive meetings and also have an opportunity to express their views 144 Third party status may be particularly useful when a developing country is a prevailing co-complainant in a multiple-complaint case As a third party, the developing country concerned would at least be informed of what goes on in its co-complainant’s Article 22.6 arbitration proceeding It could comment and exchange views on what it considers might affect its interests This may help the developing country concerned to better manage and become a more active participant in its own Article 22.6 proceeding 145 To date, Vietnam has never ever participated in any disputes related to non-compliance cases so far It only participated as a third party in 19 cases (annex 1) in WTO DSS 58 Making cross-retaliation more readily available for Vietnam 146 As the last resort remedy, retaliation does not seem practicable for Vietnam as a developing nation This is because Vietnam are unlikely to be able to use market leverage on a Member concerned with large market, such as the United States or the EC, so that it amends its measures found to be inconsistent with the WTO Agreement This is particularly true where there is domestic political pressure on the government to retain such measures Curtailing access to a Vietnam’s market has relatively little impact on a WTO Member with commercial interests diversifying throughout the world On the other hand, access to markets of the United States, the EC or other developed nations is essential to Vietnam’s exporters These large developed Members, when prevailing, could easily use their economic power to press a smaller nation to comply with the DSB recommendations and rulings Such imbalances in the WTO remedy system need to be addressed Vietnam will not be able to meaningfully participate in a legal system that does not provide for a mechanism to adequately address their unfavorable economic position Cross-retaliation could be a tool to increase enforcement power of Members with smaller-sized economies like Vietnam Developing countries especially need to be able to pose a credible threat when implementing retaliation authorized by the DSB One way to strengthen the enforcement power of developing countries is to make conditions for authorizing cross-retaliation less stringent for them For example, where a complaining party that is a developing country prevails, it should be able to acquire authorization to retaliate across sectors and across agreements without having to satisfy the conditions set forth under Article 22.3 There should be a presumption for the Article 22.6 arbitrator that a developing country has difficulties in the context of suspension of concessions or other It is perhaps true that it may be difficult to translate an authorization to cross-retaliate into effective pressure to induce the Member concerned to comply Retaliation with the purpose of inducing a mutually agreeable solution – Second and last best option for Vietnam 147 The DSU does provide the legal basis for a dispute to be settled by the 59 reaching of a mutually agreeable solution, and nothing under the DSU prevents such a solution from being reached at any stage of the dispute settlement, including at the implementation level.149 Article 22.8 of the DSU requires that retaliation shall be terminated upon the withdrawal of inconsistent measures, or upon the implementation of recommendations or rulings, or upon a mutually satisfactory solution being reached Moreover, Article 3.7 of the DSU states that a solution mutually acceptable to the parties to a dispute and consistent with the covered agreements is clearly preferable 148 “Consistent with the covered agreements” can be understood to mean that the measure should not violate WTO obligations stipulated under the covered agreements, and it should not nullify or impair the benefit of other WTO Members This understanding enlightens the differences between “measure taken to comply” (compliance) and “mutually agreeable solution” A “measure taken to comply” is usually disputed by the parties to the dispute as the complainant often believes the measure still violates the violator’s WTO obligations, and such a complaint is then brought before the Article 21.5 arbitration proceedings (compliance proceedings) However, a “mutually agreeable solution” is usually disputed by other Members who perceive that the solution reached by parties to the dispute has nullified or impaired their benefit Such a complaint is brought under a new proceeding This is one of the issues in US Hormone Suspension, also known as Hormones II, where the European Communities, instead of initiating Article 21.5 arbitration proceeding, started a new proceeding to determine where there had been compliance with the DSB‟s ruling and recommendation in Hormones I.150 The Appellate Body stated that the European Communities could have brought the complaint under Article 21.5 arbitration proceedings because either the implementing Member or the suspending Member can initiate the compliance proceeding.151 149 Therefore, the crucial thing for the parties to the dispute in reaching a mutually agreeable solution is to ensure that the solution does not nullify or 149 The DSU, arts 3.6 and 3.7 Catherina E Koops “Suspensions: To Be Continued” (2009) 36(4) Legal Iss Econ Integ 353 at 358 151 US - Continued Suspension (AB), above ch 1, n 43, at 347 150 60 impair other Members‟ trade interests A measure that is consistent with WTO obligations but nullifies and impairs other Members‟ benefits is very much open to challenge On the flip-side, WTO Members might be reluctant to initiate a proceeding for a measure that does not nullify or impair their benefit, even though the measure does not conform to WTO rules 150 Every Member has the right to bring complaints on violations, or nonviolations, or any complaints (standing) under the covered agreements There is no requirement to provide evidence of the existence of “legal or economic interests”, the presumed legal interest and economic interests are sufficient to initiate the proceedings The Appellate Body in US - Wool Shirts and Blouses stated that “if any Member should consider that its benefits are nullified or impaired as result of circumstances set out in Article XXIII, then dispute settlement is available.”152 Marceau points out the decision in Korea - Dairy in which the panel rejected the notion that evidence of any economic or legal interest must be provided before the WTO proceedings can be initiated;153 however, she also notes that in practice a Member must have some genuine interests to initiate the proceedings.154 This is understandable because the cost of initiating or having a dispute in the WTO is economically and politically substantial A Member would plausibly challenge a measure that inflicts a substantial adverse impact on its trade interests, or nullifies or impairs its benefits 151 Article 3.8 of the DSU provides a presumption that a breach of the rules has an adverse impact on other Members, and it is up to the respondent Member to rebut such a charge This presumption is reasonable because it is hard to imagine that there is cheating in trade deals that would not hamper other Members‟ trade benefits, opportunities, or expectations Therefore, “nullification or impairment of benefit” is a significant element and its existence is presumed to exist in every infringement 152 US -Shirts and Blouses (AB), above ch 3, n 91, at [13] Korea - Definitive Safeguard Measure on Import of Certain Dairy Products WTO DOC WT/DS98/R (2000) at [7.14] (Report of the WTO Panel) Likewise, the Appellate Body in EC - Bananas III ruled that there is no “legal interest” requirement to have a standing before the WTO panel, see European Communities - Regime for the Importation, Sale and Distribution of Bananas WTO DOC WT/DS27/AB/R (1997) at [132] (Report of the Appellate Body) 154 Gabrielle Marceau “WTO Dispute Settlement and Human Rights” (2002) 13(4) EJIL 753 at 758 153 61 152 In sum, retaliatory measures can also be imposed with the purpose of achieving a mutually agreeable solution, and this action is possible under Articles 3.7 and 22.8 of the DSU However, the parties should design a solution that does not have a negative effect on, or discriminate against other Members’ trade benefit, otherwise the solution will be able to be challenged in a new dispute What happened in the EC - Hormones solution was that Members, in the DSB meetings, did not question the fact that the European Union still maintains its ban on hormone-treated beef without providing an objective risk assessment required by the SPS Agreement (non-withdrawal or non-implementation) Their concern was about whether the achieved solution would hurt their own trade benefits or interests A mutually agreeable solution achieves a more politically sound rather than a legally sound settlement 153 As with compliance, the achievement of a mutually agreeable solution terminates the retaliatory measures imposed by the retaliating state; however, an agreeable solution has a broader scope than compliance Whereas inducing compliance under Article 19.1 of the DSU has the meaning of “bringing the inconsistent measure into conformity”, a mutually agreeable solution may come in the form of compensation (not only withdrawal) Nevertheless, it has distinctions from compensation under Article 22.2 of the DSU 154 A mutually agreeable solution is a final remedy, while Article 22.2 of the DSU compensation is a temporary one In other words, compensation under Article 22.2 does not replace the full implementation of bringing a measure into conformity The memorandum between the United States and the European Union, which consists of three phases, offers a definitive solution that could be agreed upon under phase 3.155 It opens the possibility of making the arrangement permanent, including in the case of the WTO hormone-treated beef dispute.156 In other words, if the arrangement between the United States and the European Union is working then it could lead to a 155 European Commission “WTO Dispute Settlement: Memorandum on Beef Hormones Dispute Signed with the United States” (Press Release, 14 May 2009) 156 If both the United States and the European Union agree in phase that the arrangement is working to their mutual satisfaction, it would lead to a final solution, in which the European Union would make permanent the 45,000 tons import quota for high-quality beef and the United States would remove the retaliatory duties, see International Centre for Trade Sustainable Development, “Truce Declared in Beef Hormone Dispute”, News and Analysis Vol No (June 2009) 62 permanent solution or settlement between them Such a mutually agreed solution, consequently, would replace the implementation under Article 19 of the DSU, of bringing the inconsistent measure into conformity 155 Furthermore, as long as the design would not result in a negative impact on other Members’ trade interests, a mutually agreeable solution might reasonably be reached in various forms The form of the arrangement offered by the EU in the beef hormones solution is a kind of compensation to offset the losses incurred due to its continuance of the prohibition on hormone treated beef Therefore, a mutually agreeable solution paves the way for other forms of solutions to be reached in the future Financial compensation is one possible form, although it might be less preferable than market access, because financial interests (in terms of cash) are not the major interests of the WTO Members It is market access and fair treatment towards their products that are the main attractions for states in becoming part of the WTO system and rules 156 In sum, a mutually agreeable solution does not worsen the position of the winning party It provides an alternative outcome when withdrawal of the inconsistent measure is not attainable Inducing a mutually agreeable solution makes the system more fruitful and provides Members with some flexibility in settling their disputes within the framework of the WTO Without any flexibility, Members may choose to opt out of the system A lack of settlement would obviously undermine the WTO dispute settlement system and the favorable position of the winning party 63 CONCLUSION 157 Within more than twenty years of its creation, the WTO dispute settlement system has already resolved more trade disputes than the GATT regime had during its 48 years of operation This suggests that WTO Members, including developing countries, have enough confidence in the system Out of all the disputes brought to the WTO, only nineteen cases went as far as Article 22.6 proceedings Unfortunately, all of the responding parties in these nineteen cases have yet to bring their WTO-inconsistent measures into full compliance with the DSB recommendations and rulings As all the nineteen cases mentioned above have remained in the status of noncompliance for quite sometimes, the Article 22.6 proceedings not seem to help enhance compliance In fact, it is not clear if the current system of retaliation can induce compliance at all 158 The carousel debate shows that even the United States thought that it did not have adequate enforcement power under the DSU system to make its retaliation effective For smaller WTO Members, retaliation is simply not practicable The situation is aggravated by the fact that the current remedy regime cannot restore the benefits accruing to the injured Member up to the level that existed before the violation The level of the nullification or impairment under the DSU is calculated starting from the expiry of the reasonable period of time, and therefore is lower than that of the benefits lost as a result of a violation of WTO obligations, which starts from the date of imposition of the measures at issue If retaliation is to re-balance benefits as well as effectively induce compliance, it is rather clear that the current regime has not achieved either objective 159 This in my view is a signal that reexamination of the underlying concepts of the WTO compliance and remedy regime may be required The compliance and remedy regime of the current DSU can certainly be improved This study has made suggestions and recommendations with a view to make the remedies of the WTO dispute settlement system a more applicable and suitable for developing Members in general and Vietnam particularly Among other things, it has suggested that WTO Members 64 reconsider the prospective nature of the remedies It has also recommended that for a case of violation (as opposed to non-violation or situation complaint), as in a case involving prohibited subsidies, the Article 22.6 arbitrator be allowed, subject inter alia to the requirement of proportionality as a general principle of law, to grant a level of suspension that exceeds the level of the nullification or impairment so that suspension may constitute a legitimate and meaningful countermeasure to a violation of treaty obligations In this way, I believe, the dual purposes of re-balancing benefits and effectively inducing compliance can be achieved without resulting in a punitive measure against the Member that is in breach of its WTO obligations 160 For Vietnam, as mentioned above, there are, so far, three ongoing disputes have brought to WTO DSB and implementation will be the most important part that it has to be taken into account However, in its position, win-win solution by taking mutually agreeable solution as analysis above, in my opinion the best solution for Vietnam to protect its rights within the current situation of WTO DSM 65 REFERENCE LIST I Literatures, publication, article Christian L Davis, Do WTO rules create a level playing field? 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(July 10, 2010) MAKING GLOBAL TRADE GOVERNANCE WORK FOR DEVELOPMENT, pp 67 153-180, Carolyn Deere-Birkbeck, ed., Cambridge University Press, 2011 Available at SSRN:http://ssrn.com/abstract=1941771 17 Gao, Henry S., Taking Justice Into Your Own Hand: The Trade Barrier Investigation Mechanism in China (October 8, 2010) Journal of World Trade 44, no 3, pp 633-659, (2010); Singapore Management University School of Law Research Paper No 13/2013 Available at SSRN:http://ssrn.com/abstract=2276469 18 Gregory Shaffer, “Developing Country Use of the WTO Dispute Settlement System Why it matters, the Barriers Posed, and its Impact on Bargaining” 19 Robert Z Lawrence, “Crimes & Punishments? Retaliation under the WTO - Institute for International Economics”, 2003 20 Gregory C Shaffer and Ricardo Melendez Otiz, Dispute Settlement at the WTO: The Developing Country Experience, ICTSD International Trade Law Programme, April 2012, Cambridge 21 Hansel T Phamd, “ Developing countries and the WTO: The need for more mediation in the DSU” ,Harvard Negotiation Law Review, Spring 2004 22 Hunter Nottage, Developing Countries in the WTO Dispute Settlement System, January 2009, GEG Working Paper 2009/47 23 LE Thi Thuy Van & Sarah Y TONG VIETNAM AND ANTIDUMPING: REGULATIONS, APPLICATIONS AND RESPONSES, EAI Working Paper No 146, March 2009 24 Marcia Don Harpaz, China and the WTO: New Kid in the Developing Bloc? Hebrew University of Jerusalem, February 1, 2007 68 25 Jackson, J H (2004), ‘International Law Status of WTO Dispute Settlement Reports: Obligation to Comply or Option to ‘‘buy out’’?”, American Journal of International Law, 98(1): 109–123 26 MARI PANGESTU, Indonesia's WTO Test Drive, Updated May 13, 1997, available at http://www.wsj.com/articles/SB863461944302959000 27 Muhammad Waqas, Why developing countries are at disadvantage position in WTO dispute settlement Mechanism, International Journal of Social Sciences and Management, ISSN 2091-2986 28 Marc L BUSCH and Eric REINHARDT, Developing Countries and General Agreement on Tariffs and Trade/World Trade Organization Dispute Settlement, Journal of World Trade 37(4): 719-735 ©2003 Kluwer Law International, Printed in The Netherlands 29 Per Pinstrup Andersen, Fuzhi Cheng, The WTO Dispute Settlement Mechanism and Developing Countries: The Brazil- U.S Cotton Case, 2007, Cornell University, Ithaca, New York 30 Robert Read, “Dispute Settlement, Compensation and Retaliation Under the WTO”, Handbook on Trade Policy, Gais Ford and Kerr 31 Gabrielle Marceau, “WTO Dispute Settlement and Human Rights” Journal of International Economic Law 13(4), 2002 32 Sutiarnoto, Indonesia’s participation in the World Trade Organization dispute settlement system, International Journal of Humanities and Social Science, Vol.4, No.12; October 2014, page 33 William F Davey, The WTO Dispute Settlement: The First Ten Year, Journal of International Economic Law 8(1), 17-50 69 34 Wenhua JI and Cui HUANG, China’s Experience in Dealing with WTO Dispute Settlement: Chinese Perspective, Journal of World Trade 45, no (2011): 1–37, ©2011 Kluwer Law International BV, The Netherlands II LEGAL TEXTS World Trade Organization Agreement on Establishing World Trade Organization General Agreement on Tariffs and Trade Understanding on the Rules and Procedures Governing the Settlement of Dispute Agreement on Establishing Advisory Center on WTO Law Agreement on Antidumping Agreement on Subsidies and Countervailing Duties Measures III REPORTS WTO Annual Report 1998 – 2014, available at http://www.wto.org Vietnam Competition Authority Annual Report 2010-2015, available at http://www.vca.gov.vn IV INTERNET SOURCES The ACWL's Mission, available at: at: at: http://www.acwl.ch/e/about/about_us.html The VCCI WTO Center’s functions available http://wtocenter.vn/introduction WTO Dispute Settlement: The Disputes, Chronological list of disputes cases, available at: http://wto.org/english/tratop_e/dispu_e/dispu_status_e.htm 70 Ongoing WTO Dispute Settlement Proceedings under the DSU, available at: http://www.worldtradelaw.net.helicon.vuw.ac.nz/dsc/currentcases.htm The WTO: The Organization, Members and Observers, available at: http://wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm WTO Dispute Settlement: The Disputes, Disputes by Agreement, available at: http://wto.org/english/tratop_e/dispu_e/dispu_agreements_index_e.htm?id =A6#selected_agreement WTO Dispute Settlement: The Disputes, Disputes by country/territory, available at: http://wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm#complai nant WTO: Members and Observers, available at: http://wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm WorldTradeLaw: Arbitration Decisions, available at: http://worldtradelaw.net/databases/suspensionawards.php V THESIS Pham Thi Van Thanh, WTO Dispute Settlement in Trade Remedies in Developing Country Members, University of Wellington, 2013 71 ... important role in clarifying and enforcing the legal obligations contained in the WTO Agreements While dispute settlement is certainly not the only activity taking place within the WTO, it has become...MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY DISSERTATION NON-COMPLIANCE CLAIMS IN THE WTO DISPUTE SETTLEMENT AND LESSONS FOR VIETNAM Major: Master of International... thesis is to determine the most suitable strategy that Vietnam should use in dealing with the WTO Dispute Settlement System This thesis provides the updated information on the participation Vietnam