The DSU included some provisions concerned with developing countries’ special needs.
These provisions are referred to as Special and Differential Treatment (S&D) provisions and
are recognised as the “integral point of WTO agreements”268. They give developing countries
special rights in all stages of the DSB process 269.
The Uruguay Round emphasised the basic conceptual premises related to Special and
Differential Treatment which are:
(i) Developing countries are intrinsically disadvantaged in their participation in
International Trade.
(ii) Any Multilateral Agreement must take this into account when specifying a
developing country’s rights and obligations.
(iii) Trade policies that maximise sustainable development in one country may
not necessarily do so in another.
(iv) It is in the interest of developed countries to assist developing countries in
integration into the multilateral trading system270.
These underlying conceptual premises led to the framework of the S&D provisions.
268
Peters, M. & Kumar, M. (2014). ‘Introspect “special and differential treatment” given to developing countries under the WTO dispute settlement system’. p.9.
269 See, WTO Website available at
https://www.wto.org/english/tratop_e/devel_e/dev_special_differential_provisions_e.htm, [Accessed: November 13, 2015].
270
Ibid. p.9. See also, Ezeani, E. C., (2010). ‘The WTO and Its Development Obligation: Prospects for Global Trade’. (Anthem Press: Wimbledon Publishing Company, London).
76
Therefore, the conclusion of the Uruguay Round can be divided into two main focus areas271.
The first area focuses on the developed countries’ need to take positive action to enhance
their participation in the WTO that falls into the following three categories:
(i) safeguarding the interests of developing countries;
(ii) increasing trade opportunities; and
(iii) providing technical assistance to developing countries272
The second area focuses on giving developing countries additional flexibility in their
schedule of commitment to WTO obligations that fall into the following three categories:
(a) flexibility commitments;
(b) transitional time periods and;
(c) differential and more favourable treatment of the least-developed countries
(LDCs)273
Therefore, DSU contains the substantive rules governing special and differential treatment for
developing and least-developed country Members. It recognizes the special situation of
developing and least-developed country Members by dedicating additional privileged
procedures and legal assistance to them274. Moreover, it encourages WTO Members to give
special consideration to the situation of developing and least-developed country Members.
271 Novel, A. S., & Paugam, J. M., (2006). ‘Why and how differentiate developing countries in the WTO?
Theoretical options and negotiating solutions. Reviving the Special and Differential Treatment of Developing Countries in International Trade’, Paris: IFRI, 151-180.
272
Ibid.
273 Ibid.
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Whereas some of these provisions are applied very often, others have not yet had much
practical relevance. Furthermore, a number of these rules are not very specific or definite275.
There are some provisions entailing that the WTO Members should address and safeguard the
interests of the developing members such as 4.10, 8.10, 12.10, 12.11, 21.2, 21.7, 21.8, 24.1,
24.2 and 27.2276. The operational side of these articles has been reviewed and analysed by
some developing countries that offered many proposals with respect to each of these
provisions in order to make them more effective277. The main issue which the developing
members highlighted in their proposals is that S&D provisions may not be appropriate for
developing members278. Besides, these provisions have turned out to be of limited value to
developing countries and declarative rather than operative279. Therefore, the developing
members have been suggesting ways of improving and reforming these provisions.
Regarding the consultation stage of the DSB, Article 4.10 of the DSU provides that during
consultations, “Members should give special attention to developing country Members’
particular problems and interests”. Indeed, the consultation stage of the DSB is mandatory
and it supposed to grant the disputing parties an opportunity to discuss their views, giving this
chance particularly to the defending party that needs to explain its measure subjected to the
dispute. However, the DSU does not indicate as to how this provision is implemented280. The
275
Ibid.
276 Article 27.2. discussed in this thesis, see chapter 4.
277 Peters, M. & Kumar, M., (2014). ‘Introspect “special and differential treatment” given to developing
countries under the WTO dispute settlement system’. p.10.
278
Ibid. p.10.
279 Ibid. p.10.
280 Babu, R. R., (2003). ‘Special and Differential Treatment under WTO Agreements: A Study’. Asian-African
Legal Consultative Organization. , p. 70, available at http://ssrn.com/abstract=887860, [Accessed: November
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African group’s proposed reform suggested that where there is no exact definition of the term
“should give special attention”, it should be mandatory for a complaining developed Member seeking a panel’s establishment “to explain in the panel request […] how it had taken or paid
special attention to the particular problems and interests of the responding developing
country”281. In addition, when a developed Member is a defending party, “it should be made
mandatory for it to explain in its submissions to the panel as to how it had addressed or paid
special attention to the particular problems and interests of the complaining developing
country”282. While it is adjudicating the matter, the panel “should give ruling on this matter as
well”283. Moreover, this article may imply that if a developing country is part of a dispute,
both disputing parties may agree to extend the regular periods of consultation. If the parties
cannot agree that the consultations have concluded at the end of the consultation period, the
DSB chairperson can extend the time-period for consultations that in accordance with Article
12.10 of the DSU284.
In addition, the S&D provisions are available for a developing country at the panel stage.
First, the DSU provides special treatment provisions for developing countries that are
presented by Article 8.10. This Article provides that when a dispute is between a developing
281 Proposal on DSU by Cuba, Honduras, India, Indonesia, Malaysia, Pakistan, Sri Lanka, Tanzania and
Zimbabwe, Negotiations on the Dispute Settlement Understanding, TN/DS/W/19, at 2 (Oct. 9, 2002). Proposal of the African Group in the WTO, TN/CTD/W/3/Rev.1, para.84.
282 See, the African Group Proposal, TN/DS/W/19, at 2 (Oct. 9, 2002). 283 Ibid.
284
Wilson, B. (2003). ‘Dispute Settlement System Training Module’.see, also Article 12.10 of the DSU provides that “In the context of consultations involving a measure taken by a developing country Member, the parties may agree to extend the periods established in paragraphs 7 and 8 of Article 4. If, after the relevant period has elapsed, the consulting parties cannot agree that the consultations have concluded, the Chairman of the DSB shall decide, after consultation with the parties, whether to extend the relevant period and, if so, for how long. In addition, in examining a complaint against a developing country Member, the panel shall accord sufficient time for the developing country Member to prepare and present its argumentation. The provisions of paragraph 1 of Article 20 and paragraph 4 of Article 21 are not affected by any action pursuant to this paragraph”.
79
country Member and a developed country Member, the panel shall, if the developing country
Member so requests, include at least one panelist from a developing country Member. This
may be considered in the favour of developing countries. Yet, the panelist, who belongs to a
developing country Member, should be characterised by neutrality and refrain from being
biased in favour of the developing country.
Further, Article 12.10 is about extending the consultation period especially for the benefit of
the developing countries; it states that “the Chairman of the DSB shall decide, after
consultation with the parties, whether to extend the relevant period and, if so, for how long”.
Also, the second part of this article directs the panel to give, when the developing country
Member is the respondent, “sufficient time for the developing country Member to prepare
and present its argumentation”. However, the article does not give any guideline either to the
DSB Chairman or to the panel concerning the length of the additional time to be given.
Therefore, this article causes operation disorder in the dispute settlement procedure for the
developing country Members285. Cuba, Dominican Republic, Egypt, Honduras, India,
Indonesia, Kenya, Mauritius, Pakistan, Sri Lanka, Tanzania and Zimbabwe, in their joint
communication concerning removing the ambiguity from article 12.10, proposed that it
should allow a “fixed extension of not less than 15 days, in cases of urgency” and “not less
than 30 days in normal circumstances”286. However, this should not affect the overall time
period for the panel to complete the dispute settlement procedure. Indeed, this provision has
already been applied by one panel upon the responding developing country Member’s request
285 See, the African Group Proposal, TN/DS/W/19, at 2 (Oct. 9, 2002), para.86. 286
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for an additional period of ten days for it to prepare its first written submission to the panel,
despite the complainant’s objection287 .
Moreover, Article 12.11 provides that when a developing country is a party to a dispute, the
panel report must clearly indicate the form in which the special and differential treatment of
the DSU has been taken into account. This article implies the necessity of transparency in
showing “how effective these rules have been in a given case” and “how they have actually
been applied”288.
In addition, the special and differential treatment for developing country Members has been
applied at the implementation stage of the DSB. Article 21.2 provides that, at the stage of
implementation, “[p]articular attention should be paid to matters affecting the interests of
developing country Members with respect to measures which have been subject to dispute
settlement”289. This Article is not entirely clear. Therefore, the India proposal suggested
clarifying this Article by replacing the word “should” with “shall” to make this provision
mandatory 290. In addition, the provision must be made mandatory, for the panel and AB to
interpret it as an overarching provision in all disputes, involving a developing country
Member.
287
See, Panel Report, India-Quantitative Restrictions on Import of Agricultural, Textile and Industrial Products, WT/DS90/R, adopted 22 September 1999, as upheld by the Appellate Body Report, WT/DS90/AB/R, DSR 1999: V, 1977.
288 Article 12.11 provides that “Where one or more of the parties is a developing country Member, the panel's
report shall explicitly indicate the form in which account has been taken of relevant provisions on differential and more-favourable treatment for developing country Members that form part of the covered agreements which have been raised by the developing country Member in the course of the dispute settlement procedures”.
289 See, Articles 21.2 of the DSU. 290
81
Moreover, in the implementation stage of the DSB, Articles 21.7 and 12.8 organize the
supervision of the implementation. Article 21.7 provides that the DSB shall consider what
further and appropriate action it might take in addition to surveillance and status reports, if a
developing country Member has raised the matter. Articles 21.8 states that in a case brought
by a developing country Member, the DSB has to consider appropriate action not only
regarding the trade coverage of the challenged measures, “but also their impact on the
economy of developing country Members concerned”291. Nonetheless, this article does not
force any other party to the dispute to accept the obligation. Therefore, it is suggested that, a
successful implementation of this provision requires adding the following sentence: “the
parties to the dispute shall enter into such a process, in good faith, in accordance with the
provisions of art.5”292.
Additionally, the DSU sets out a particular rule applicable to least-developed country
Members. The DSU seeks to “emphasise on due restraint being exercised in bringing a
dispute settlement proceeding against an LDC as well as in seeking compensation or
suspending concession in a proceeding brought against an LDC”293. According to Article
24.1, particular consideration must be given, at all stages of the dispute settlement
procedures, to the special situation of the least-developed country Member that is involved in
a dispute. Moreover, Members must “exercise due restraint in bringing disputes against a
least-developed country Member and in asking for compensation or seeking authorization to
291 See, Articles 21.8 of the DSU.
292 Peters, M. & Kumar, M., (2014). ‘Introspect “special and differential treatment” given to developing
countries under the WTO dispute settlement system’. p.13; see also, Articles 5 of the DSU.
293 Kennedy,K.“Special and Differential Treatment of Developing Countries” in Patrick F.J. Mackrory, Arthur
E. Appleton et al. (eds) The World Trade Organization: Legal, Economic and Political Analysis (Springer, New
82
suspend obligations against a least-developed country Member that has ‘lost’ a dispute”294.
As for Article 24.2, it provides that the Director-General or the Chairman of the DSB must
offer their good offices, conciliation and mediation when this is requested by a least-
developed country Member. This article in fact aims at assisting the parties to settle the
dispute before the establishment of a panel, and, for this aim, the Director-General or the
Chairman of the DSB may consult any source either considers appropriate.
From the beginning, the reasons for S&D have covered different positions of the needs of
developing countries in the DSB. The purpose of S&D is to give developing countries a
greater priority in the DSB process, thereby allowing them to give priority to their own needs.
The existing S&D provisions were reviewed. The issues that have been considered are:
whether some of the non-mandatory provisions should be made mandatory, the way of
making them more effective and the help to be offered to developing countries to use them
more effectively. However, there was little evidence of the implementation of these
provisions. Making the S&D provisions legally binding would make them more effective.
The basic aim should be placing developing countries in the position that allows them to
effectively defend their rights in the DSB system. The S&D treatment in the field of WTO
dispute settlement should take primarily the form of privileged access to developing country
Members.
294
83 2.3.12 Conclusion
This chapter presented a brief review about the WTO and the environment that produced the
WTO. Also, it includes a number of the WTO articles that creates a participating role in
WTO proceedings possibly leading to accession under the WTO. Therefore, it highlighted
and evaluated articles that indeed are key factors for countries entering into the WTO. The
WTO accession was important to mention in this part. So, the aim of accession is to make
clear the accession under the WTO Articles, which considered the practical and key factors
for joining and entering into the WTO. This chapter presented brief information about the
development of the WTO as well as accession under the WTO article. So, this chapter tried to
evaluate the articles that are important in making the WTO accession system. Consequently,
this part was divided into: Article XI: accession of ‘original members’, Article XIV:
Acceptance, Entry into Force and Deposit, the WTO Accession Process, Current
membership, Observer governments, States and customs territories, Developing-country
Members, Groups and alliances within the WTO and Observers. Also, this chapter has
brought into view the timing of accession procedures for potential WTO. The chapter, in
addition, includes a brief review of the development and functions of the GATT and WTO
dispute settlement system and analyses the position and Special and Differential treatment for
Developing Countries in the WTO. Therefore, the next chapter will try to classify the
meaning of “a developing country” which can benefit from the Special and Differential
84