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A legal principle of special and differential treatment for WTO disputes

Published online by Cambridge University Press:  19 October 2006

ANDREW D. MITCHELL
Affiliation:
University of Melbourne

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) of 1947 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.

Type
Research Article
Copyright
© Andrew D. Mitchell

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Footnotes

This article draws on a larger work by the author on the role of legal principles in WTO dispute settlement, Legal Principles in WTO Disputes, which will be published by Cambridge University Press later this year.