Cross-retaliation in IP rights: adressing member asymmetries and compliance at the WTO

As the multilateral trade relations multiply and become more sophisticated, trade disputes governed by the WTO also tend to become more frequent. In fact, since 1995 there was a significant increase in disputes brought before the WTO, compared to the number of disputes discussed before GATT. The large number of controversies not only indicates that there are disagreements among members about the inconsistency of trade measures, but also that the establishment of a rules engine resulted in a more secure and comfortable environment to solve disputes. The dispute settlement system provides stability to the multilateral trade and reflects the credibility of its members to solve disputes under a system of legalized and predictable solution. However, although the system appears to be very effective - especially due to the high rate of compliance with WTO decisions, there are gaps and inconsistencies that should not be overlooked. This research focuses on the phase of implementation of decisions adopted by the DSB. This is the stage when the economic asymmetries are emphasized, since the greater or lesser importance of access to certain market seems to be crucial to the decision to comply with a WTO ruling. In fact, if one loser developed member in a dispute against a developing country member prefer to pay the price of failure rather than comply with the decision, there seems to be no effective way to induce compliance. Considering this scenario, the present study is interested in the solutions given by the DSU in dealing with compliance issues and implementing decisions in accordance with its provisions. In particular, this study focuses on the cross-retaliation in IP rights, a mechanism that is appointed by the academy and by professionals as a possible solution to the economic asymmetries between opponents in a trade dispute. Even though it seems to be a very interesting solution for developing country members, this dissertation concluded that cross-retaliation in IP rights can function in very specific situations, depending on the domestic market size, domestic legislation, international commitments and political pressure.