Andrew D. Mitchell

This article considers the role of proportionality in determining the level and type of remedies available to World Trade Organization Members for violations of legal obligations or for certain other undesirable or unfair conduct. As an aid to interpretation, proportionality confirms the purpose of suspension of concessions as inducing compliance and may clarify the meaning of ‘nullification or impairment’ and the appropriate response to actionable or prohibited subsidies. However, principles such as proportionality must yield to the relevant text of the WTO agreements, where that text is unambiguous, and WTO Tribunals must carefully investigate the meaning and scope of a principle before using it in the WTO. Contrary to certain past decisions, the principle of proportionality is not relevant to the imposition of safeguards in the WTO. It goes without saying that a breach of a commercial treaty may not justify the taking of hostages in response.