A Legal Principle of Special & Differential Treatment for WTO Disputes?

(2006) 5(3) World Trade Review 445-470

U of Melbourne Legal Studies Research Paper No. 148

25 Pages Posted: 8 Jun 2006 Last revised: 21 Apr 2015

See all articles by Andrew D. Mitchell

Andrew D. Mitchell

University of Melbourne - Law School

Abstract

Based on the notion that the needs of developing countries are substantially different from those of developed countries, the principle of special and differential treatment (S&D) in the World Trade Organization (WTO) allows a certain degree of discrimination in favour of developing countries. This article considers the potential of this principle in resolving disputes within the WTO. S&D developed in the General Agreement on Tariffs and Trade (GATT) and is today reflected in a series of provisions in various WTO agreements. The meaning of S&D as a broader principle could assist in interpreting such provisions. In addition, the principle of S&D could conceivably be used as part of the inherent jurisdiction of Panels and the Appellate Body in connection with procedural aspects of dispute settlement. However, the article concludes that, due to the incoherence of S&D, as well as the difficulties involved in distinguishing between developing countries and in advancing their interests as an amorphous group, S&D is presently of limited value as an independent principle in WTO dispute settlement.

Keywords: Special and differential treatment, World Trade Organization, WTO, GATT, developing countries

JEL Classification: F10, K33

Suggested Citation

Mitchell, Andrew D., A Legal Principle of Special & Differential Treatment for WTO Disputes?. (2006) 5(3) World Trade Review 445-470; U of Melbourne Legal Studies Research Paper No. 148. Available at SSRN: https://ssrn.com/abstract=906963

Andrew D. Mitchell (Contact Author)

University of Melbourne - Law School ( email )

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HOME PAGE: http://www.law.unimelb.edu.au/staff/Andrew%20Mitchell

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