Remedies and Compliance

This chapter examines the remedies that prevail in international trade adjudication, often known as ‘prospective’, ‘forward-looking’ or ‘compliance-oriented’. These terms are justified by the lack of awards for reparation for injury in this field, where remedies have evolved to focus not on past injury but on re-establishing conduct that complies with substantive obligations. The primary remedy available to trade adjudicators is an impartial determination of breach, coupled with an instruction for its cessation. These primary remedies are usually accompanied by the possibility of follow-up adjudication on compliance with them, and potentially by the threat of an authorization of retaliation in case of non-cessation of the violation. The authorization to apply regulated retaliation may be considered as a remedy in its own right, available in case the primary remedies prove insufficient to induce compliance. However, authorized retaliation should not be confused with awards for damages or analysed as a functional equivalent to monetary compensation. The practice shows that complainants in trade disputes do not request adjudication seeking retaliation and seldom implement it when authorized to do so. The right to retaliate is not perceived as a benefit in itself, but as an instrument whose threat can be used to induce performance of obligations or a settlement satisfactory to the complainant.