Operationalizing special and differential treatment in the World Trade Organization: game over?

Mitchell, Andrew D. ; Voon, Tania

 The notion of providing special and differential treatment to
 developing countries has a long history in the World Trade
 Organization, but some commentators continue to question its
 rationale and practical effectiveness in supporting development and
 integration into the multilateral trading system. In particular,
 while operationalizing special and differential treatment is one of
 the important tasks of negotiators in the ongoing Doha Round, some
 argue that this will not only be difficult, but in fact impossible to
 achieve. Doubtless, special and differential treatment cannot of
 itself solve the problems of the developing world, and relying too
 heavily on this kind of discrimination will ultimately disadvantage
 developing country WTO members. Nevertheless, in achieving a
 successful conclusion to the Doha Round, members must take greater
 account of the different needs of developing countries and adopt more
 concrete provisions in this regard than are currently contained in
 the Uruguay Round agreements. In general, WTO members themselves
 appear to have accepted this responsibility, despite the slow
 progress in this as in many other areas of the negotiations. Ideally,
 this process should involve in-depth economic analysis to identify
 measurable criteria for granting special and differential treatment
 to particular countries under specific provisions. If these criteria
 can be agreed and incorporated into the WTO agreements, no new
 independent bodies will be required to assess individual cases
 separate from the established WTO dispute settlement system.
 KEYWORDS: World Trade Organization, developing countries,
 international trade, international law, multilateral
 negotiations.

**********

As the Doha Round drags on, many are looking with increasing skepticism at its Development Agenda, concerned that even a successful end to the negotiations will be no more development-friendly than was the Uruguay Round before it. That round concluded with the successful creation of the World Trade Organization (WTO) in 1995. But since then, it has become clearer that developed countries fared better in the final outcome, with fewer disciplines imposed in areas critical to developing countries, such as agriculture and textiles, and more in areas traditionally the province of developed countries, such as intellectual property. From the time that the Doha Round commenced in 2001, many WTO members, commentators, and non-governmental organizations (NGOs) have called for greater emphasis on special and differential treatment for developing countries in the WTO in order to improve support for development and rebalance the playing field. In particular, these voices insist that the existing special and differential treatment provisions in WTO law must be operationalized. Indeed, the ministerial declaration that launched the Doha Round specifically mandated a review of all special and differential treatment provisions "with a view to strengthening them and making them more precise, effective and operational." (1)

Special and differential treatment sounds, on first hearing, like an ideal solution to developing countries' difficulties in meeting their peoples' needs, complying with WTO law, and competing in the global market. However, do developing countries need more special differential treatment or less? And is the WTO the right forum for addressing development concerns? Michael Finger (formerly lead economist at the World Bank) recently described the attempt to operationalize special and differential treatment as "heartfelt but ill-defined and ultimately fruitless," declaring that the WTO members' work in this regard in the Doha Round has unsurprisingly "c[o]me to nothing." (2) He has since queried whether the WTO has anything useful to do in this area. (3) This highlights the complexities and limitations of special and differential treatment. Too much special and differential treatment will eat into the foundations of nondiscrimination in the WTO, discouraging unilateral trade liberalization and its attendant benefits, and hindering the very process of development that it is supposed to facilitate; too little will leave the WTO ignorant to the economic realities of the majority of its 153 members, preventing them from integrating fully in the international market and thwarting WTO negotiations and the continued expansion of international trade.

In this article, we first explain the current extent of special and differential treatment in the WTO and the initial push to operationalize the existing special and differential treatment provisions. We then analyze arguments by Finger and others that special and differential treatment cannot be operationalized and is not the answer to the development divide that exists within or outside the WTO. We identify the truth on both sides of the debate regarding special and differential treatment. Developing countries that identify enhanced special and differential treatment as a negotiating goal and an end in itself risk cutting themselves off from the long-term potential benefits of trade liberalization. At the same time, special and differential treatment still has a crucial role to play if WTO members are to take their agreement further for the benefit of all. We conclude that, with sufficient political will and legal and economic imagination, special and differential treatment can and should be operationalized. We go on to consider how this might best be achieved, evaluating proposals by both scholars and WTO members to date.

Special and Differential Treatment and the Push to Operationalize

Special and differential treatment in the WTO is premised on the notion that developing country members have different needs than developed country members, and that WTO disciplines should be modified to reflect those different needs. In particular, many developing countries face difficulties in implementing the WTO agreements, dealing with the adjustment costs of trade liberalization, and engaging in international trade to reap the full benefits of WTO membership. (4) Thus, the preamble to the Marrakesh Agreement Establishing the World Trade Organization recognized that "there is need for positive efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development." (5) Paragraph 2 of the Doha declaration reiterated this and confirmed that "in this context, enhanced market access, balanced rules, and well targeted, sustainably financed technical assistance and capacity-building programmes have important roles to play."

Special and differential treatment takes a range of forms throughout the WTO agreements. The WTO secretariat has identified six categories of special and differential treatment provisions in the WTO agreements. Although these categories overlap and are somewhat arbitrary, they provide a useful way of classifying and assessing the provisions. (6) The categories are:

1. Provisions aimed at increasing the trade opportunities of developing country members, such as the exemption from the most-favored-nation rule for developed country members providing preferential tariff treatment to products from developing country members pursuant to Generalized System of Preferences (GSP) schemes. (7)

2. Provisions under which WTO members should safeguard the interests of developing country members, such as the requirement that members explore the possibility of constructive remedies (8) before imposing antidumping duties on developing country members. (9)

3. Flexibility of commitments and actions, and use of policy instruments, such as the understanding that developed country members "do not expect reciprocity for commitments made by them in trade negotiations to reduce or remove tariffs and other barriers to trade" of developing country members (so-called nonreciprocity). (10)

4. Transitional time periods. For example, the prohibition on import substitution subsidies does not apply to developing countries for five years or to Least Developed Countries (LDCs) for eight years from the creation of the WTO. (11)

5. Technical assistance, such as assistance from the WTO secretariat and developed country WTO members in implementing WTO rules.

6. Provisions relating to LDC members (which also fall within one of the other categories). For example, members agree to exercise "due restraint" in bringing dispute settlement actions against LDC members. (12)

Given the long-standing recognition of the different needs and interests of developing countries in the WTO, and the inclusion of a broad range of special and differential treatment provisions in most if not all WTO agreements, why does special and differential treatment need to be operationalized in the sense of making them more workable? The 2007 Warwick Commission report identified the two most important answers. First, most of the existing provisions are merely aspirational, vague, or unenforceable. Second, they do not adequately reflect the differences among developing countries (and LDCs) in the WTO, (13) which include Brazil, China, Barbados, Bangladesh, and, most recently, Cape Verde. WTO members and others have long lamented these two key problems. (14) A third, perhaps more controversial, reason for operationalizing special and differential treatment is to redress the unbalanced outcome of the Uruguay Round, whereby developing countries are typically seen as having given more than they received. (15)

For these and related reasons, the push to operationalize special and differential treatment has come from a number of sources, including the WTO itself, as noted above. Most recently, the Warwick Commission recommended that "efforts be redoubled to design clear, concrete [special and differential treatment] provisions based on solid analysis of development needs and cognisant of the reality that differing needs among developing countries call for differentiated measures," although it did not indicate specifically how this should be achieved. (16) In any case, neither special and differential treatment nor its operationalization is a panacea for developing countries in the WTO, as we now explain.

Questioning Special and Differential Treatment

In 2006, Alexander Keck and Patrick Low (respectively, counsellor and chief economist at the WTO) wrote that "the battle to establish the principle that a set of uniform multilateral rights and obligations among a deeply diverse set of nations could not serve the best interests of all parties was won a long time ago." (17) In other words, special and differential treatment is crucial in achieving the goals of the WTO membership as a whole. The WTO is not a development organization, but special and differential treatment offers one way in which it can aid development by recognizing the distinct needs of developing countries in certain contexts. However, it is equally well established that the core WTO disciplines make economic sense for all countries. (18) Moreover, "effective integration into the global trading system is a major ... key to accelerating growth and eradicating poverty in developing countries." (19) Thus, special and differential treatment is not in itself a permanent solution for developing countries, to the extent that it allows them to depart from WTO disciplines and delay or limit integration in international trade.

Numerous examples demonstrate that overreliance on special and differential treatment may be problematic and counterproductive. As already mentioned, the WTO is based on the widely accepted view among economists that trade liberalization makes economic sense, such that autonomous liberalization benefits the liberalizing state. Developing country members may miss out on these benefits if they rely on nonreciprocity or otherwise depart from core WTO disciplines pursuant to special and differential treatment provisions. (20) Even if adopting a mercantilist approach (i.e., assuming that liberalizing involves making concessions or giving something to other members), a developing country member that relies on the principle of nonreciprocity may benefit from deals negotiated among others through the operation of the most-favored-nation principle, but they might well obtain more in areas of specific interest by negotiating reciprocal commitments. (21) WTO commitments may also allow developing (and developed) country members to withstand domestic opposition to market opening from minority interest groups such as uncompetitive industries. Avoiding these commitments on the basis of special and differential treatment may make it harder for these members to engage in much-needed reforms. (22) Finally, the dubious value of tariff preferences pursuant to developed countries' GSP schemes has been well documented. Among other things, these preferences are voluntary and typically subject to conditions (often political and thereby constraining beneficiaries' policy options), (23) and they are transitory, with beneficiaries generally subject to graduation procedures. (24)

These drawbacks of special and differential treatment do not necessarily mean that the WTO should abandon the concept. After all, many of them apply equally to other aspects of the WTO: economic rationality does not always determine the content of WTO rules or the way members apply them. For instance, several WTO rules allow measures that do not make general economic sense (such as antidumping) (25) or are presently overused (such as subsidies), but they are tolerated as a temporary trade-off for broader liberalization under the WTO. Developed country members sought and obtained many of these rules during the Uruguay Round as a condition of agreement on other aspects of the WTO, (26) such as the major achievement of the broad national treatment obligation with respect to trade in goods. (27) As negotiations continue in the Doha Round, developed and developing country members alike continue to operate from a mercantilist perspective, whether or not this is in their economic interest.

Thus, the fact that overreliance on special and differential treatment is economically inefficient is not a sufficient reason for denying it to developing countries, and it should not obscure the genuine contribution that properly tailored special and differential treatment may make to the development and liberalization efforts of developing country members. What is important, as Keck and Low explain, is not to insist on special and differential treatment as a "political right," which often leads to the false assumption that the fewer the obligations of developing countries under the WTO agreements, the better. (28) This approach to negotiations will benefit neither developed nor developing countries.

At least two possible paths exist to prevent the use of too much special and differential treatment as the WTO moves forward. (29) The WTO could shift to a more plurilateral or critical mass approach, as discussed by Andrew Stoler and Peter Gallagher in this volume, or it could maintain the "single undertaking" while operationalizing special and differential treatment. The members are taking the second path in the Doha Round. Should the round fail, the single undertaking may fall with it.

Yet, according to Finger, special and differential treatment cannot be operationalized in the sense of being made a formal, enforceable part of the WTO system. (30) In this regard, Finger endorses the 1987 work of Robert Hudec, Developing Countries in the GATT Legal System, and specifically his conclusion that the "welfare obligation" of developed countries to assist in the development of developing countries cannot be given legal force. (31) However, in our view, Hudec was not saying that GATT contracting parties could not agree on legally binding special and differential treatment provisions. Rather, he said that "the welfare concept itself is incapable of being defined with the kind of specificity needed to establish a meaningful obligation of customary international law, applicable to the governments of all developed countries." (32) Although this conclusion remains valid, (33) it does not preclude special and differential treatment from forming a workable and effective part of the rules negotiated among WTO members. Hudec himself confirmed that developing countries may secure legal rights related to special and differential treatment and nonreciprocity in the form of contractual rights arising from negotiated liberalization. (34) These contractual rights are binding parts of public international law (35) and enforceable within the WTO dispute settlement system.

Accepting then, as we do, that special and differential treatment can and should be operationalized, the next question is how to go about it. We now examine three key proposals by economic and legal scholars that could be used to guide the process, before addressing WTO members' progress on this issue in the Doha Round to date. This analysis reveals a modestly positive outlook for special and differential treatment, contrary to claims that the WTO should abandon its efforts in this area.

The Future of Special and Differential Treatment

Scholarly Proposals

We turn first to a proposal by Bernard Hoekman, sector director of the Trade Department in the Poverty Reduction and Economic Management vice-presidency of the World Bank. Hoekman proposes that the WTO engage an independent body to mediate consultations regarding policy measures of developing countries that are allegedly contrary to the WTO rules. These consultations would be a pre-condition to challenging these measures in the WTO dispute settlement system. The consultations would not focus purely on the consistency of the measure with WTO law. Rather, they would assess the rationale and development impact of the measure as well as negative spillovers on other members, thereby assisting governments to achieve their objectives more efficiently. (36)

Hoekman recognizes that this approach may create concerns about "hollowing-out of the DSU" (Dispute Settlement Understanding), but he does not see this as a major impediment. (37) In our view, this is a serious flaw with the proposal. It risks undermining one of the most successful outcomes of the Uruguay Round and returning to a more power-based system because the mediator would take over at least part of the role currently assigned to panels and the Appellate Body, and the "mediation" would be between the parties themselves. Although the WTO rules would still prevail in the adjudication of a dispute by a panel, the proposed prior consultations would elevate economic analysis above WTO law in a way that discriminates against developing countries. Some might perceive this proposal as simply placing an additional barrier in the way of dispute settlement challenges to measures of developing country members, to the benefit of those members: if they can justify their measures on economic grounds, the dispute will not proceed. However, all members have agreed to abide by the WTO rules, which, as already mentioned, do not always accord with economic efficiency. Under this proposal, developing country members would, of course, retain the option of defending their measures as being WTO-consistent at the panel stage. But why should only developing countries be forced to justify their measures on economic grounds first, before reaching that stage? Developed countries are also frequently guilty of adopting economically inefficient measures, disguised or otherwise; it is patronizing to suggest that only developing countries need "assistance" in this regard.

Another proposal for operationalizing special and differential treatment comes from Joel Trachtman, professor of international law at the Fletcher School, Tufts University. Trachtman proposes "a simple blanket exception" so that developing country members are not "required to fulfil any commitment that is detrimental to their development or poverty alleviation," where this criterion is assessed by a team of professional development economists. (38) Like Hoekman's proposal, this relies on an independent body or team as well as economic analysis. However, it is not linked to the DSU and does not impose on developing countries the burden of justifying their measures on economic grounds separate from the usual dispute settlement system. Instead, it sounds more like an exception under Article XX of GATT 1994 that a developing country could choose to rely on in a given dispute.

In theory, a blanket exception of this kind could significantly expand the scope of special and differential treatment for developing countries, in that it would be available for any WTO commitment rather than the existing limited commitments subject to special and differential treatment provisions. Given the existence of debate concerning the value of special and differential treatment to developing countries, and its economic basis, one might query whether an expansion of special and differential treatment goes beyond the operationalization that is called for. In practice, the focus of the exception on development economics may mean that special and differential treatment becomes more narrowly focused, to encompass only those measures that are justified on the basis of sound development policy. However, it seems unnecessary and resource-intensive to provide a blanket exception for all commitments that then needs to be narrowed by economic analysts rather than making the rules or exceptions more precise or targeted in the first place.

A common theme of these two proposals is greater reliance on objective analysis of particular situations rather than an assumption that special and differential treatment is justified. Objective in this context means: (1) conducted by a neutral body separate from WTO members, panels, and the Appellate Body; and (2) operating on the basis of economic analysis to determine the relationship between a given measure or policy and specified development objectives. These two aspects of supposed objectivity give rise to two corresponding difficulties. First, any new body will raise complex problems regarding issues such as selection, term, and how to maintain impartiality, independence, legitimacy and accountability (issues that are difficult enough to deal with even in connection with the reputable system of panels and the Appellate Body today). Second, "economics" and "development economics" are not necessarily any more certain than law. Individuals and teams of economists are likely to present conflicting views and models, making decisions by the relevant body contentious and subject to challenge.

In our view, it would be preferable to merge economics and law so that the economic criteria are agreed by the members and written into the WTO rules. (Although this may seem self-evident, as highlighted above, the current WTO agreements do not appear to reflect a consensus that all WTO rules should necessarily make economic sense.) This is essentially what Keck and Low propose. They urge members to engage in detailed analysis at the level of individual agreements, provisions, and countries. Each special and differential treatment provision should contain measurable economic criteria that a given country must meet if it wishes to obtain the relevant treatment. (39) This approach avoids arbitrary distinctions between countries that apply across the WTO agreements. (40) It also ensures that criteria are linked to the rationale for special and differential treatment in the particular provision (i.e., why special and differential treatment is needed here to facilitate development or trade liberalization) and prevents reliance on any "independent" body engaging in unspecified "economic" analysis. Although WTO members will find it difficult to agree on the relevant criteria for each provision, (41) this disagreement should be resolved in crafting the rules at the negotiation stage (once) rather than in applying them in subsequent disputes (potentially many times).

Members' Progress

Like almost all areas of debate in the Doha Round, negotiations on special and differential treatment have failed to meet expectations since the round commenced in 2001. The initial July 2002 deadline has passed, (42) along with a series of subsequent deadlines. Issues related to development and special and differential treatment are not discrete; they cut across a number of WTO agreements and fields. This is reflected in the structure of the negotiations on special and differential treatment. For this reason as well as the nature of WTO negotiations, a successful outcome on special and differential treatment is likely to depend on agreement in other areas, including agriculture, non-agricultural market access, and services. Nevertheless, a review of members' progress in operationalizing special and differential treatment to date reveals some positive steps and an optimistic outlook that corresponds to some extent with the suggestions of Keck and Low.

The WTO secretariat has prepared a number of documents to assist members in making and assessing proposals on operationalizing special and differential treatment; for example, by suggesting ways to convert nonmandatory provisions into mandatory provisions and providing details on the extent to which existing provisions have been utilized. (43) Of course, keeping in mind the potential flaws of special and differential treatment as noted earlier, it is important to resist the temptation to make all relevant provisions mandatory or to conclude that underutilization of special and differential treatment provisions needs to be addressed by more or stronger such provisions.

Members have put forward numerous proposals to the Special Session of the Committee on Trade and Development (CTD), including eighty-eight agreement-specific proposals. (44) Most of these have come from the African Group, demonstrating the potential negotiating strength of small economies banding together, (45) even though each proposal may struggle to attract the attention of other members. Two agreement-specific proposals related to the Agreement on Textiles and Clothing, which has now expired. (46) Nine others have been set aside, and members appear unlikely to reach agreement on them. (47) Several of the other agreement-specific proposals have already been agreed.

In the lead-up to the failed ministerial conference in Cancun in 2003, members agreed in principle on twenty-eight proposals relating to a range of WTO agreements. (48) Some of these agreed proposals appear little more than restatements or confirmations of existing law, although they may be intended to affect the Doha negotiations or decisions of panels or the Appellate Body in settling disputes between members. For example, LDCs need not commit to reducing support to their agricultural industries, (49) and members granting tariff preferences under GSP schemes must comply with the terms and conditions set out in the Enabling Clause. Other agreed proposals require particular bodies to develop or take on additional procedures and tasks. For instance, the Committee on Balance-of-Payments Restrictions is to examine ways of simplifying administrative requirements for consultations regarding restrictive import measures taken for balance-of-payments purposes. (50) Developing countries refused to adopt the twenty-eight proposals in Cancun, in part due to the dubious economic value of the proposals as ultimately reflected in the draft text, combined with a fear of being forced to trade off this development "success" in other areas of the Doha negotiations. (51)

This experience highlights two key difficulties in negotiating special and differential treatment in the WTO. First, in the absence of a shared goal, developing country proposals risk being watered down to such an extent that they may be no more effective or operational than the existing provisions. Second, there is a risk that the overall benefit that developing countries obtain from advances in special and differential treatment may be outweighed by concessions they are forced to make in other areas to obtain those advances. These two difficulties should be viewed not as arguments against operationalizing special and differential treatment, but rather as reflecting the inherent characteristics of multilateral trade negotiations and as obstacles to be overcome in the quest to achieve special and differential treatment provisions that are meaningful for developing countries. On one view at least, trade-offs should not be expected because operationalizing special and differential treatment simply involves giving effect to the results of previous negotiations. (52)

In Hong Kong at the end of 2005, the ministerial conference adopted five other proposals as decisions regarding LDCs. Perhaps most importantly, members agreed that developed country members (and developing country members "declaring themselves in a position to do so") "should" provide duty-free and quota-free (DFQF) market access to all products originating in LDCs. An exception applies to members "facing difficulties" in providing this market access, in which case it is to be provided "for at least 97 per cent of products originating from LDCs, defined at the tariff line level." (53) The classification of countries as "developing" in the WTO is based on self-declaration, but the classification of countries as LDCs is based on a United Nations list, which is compiled according to a low income criterion, a human resource weakness criterion, and an economic vulnerability criterion. (54) The DFQF decision has not yet been widely implemented, (55) but it provides an example of special and differential treatment in concrete, enforceable form and is at least a step towards the measurable economic criteria tailored to individual provisions that Keck and Low envisage.

Members have also agreed in principle to establish a Monitoring Mechanism, which would enable regular high-level review of special and differential treatment issues. Discussions are proceeding on the basis of a nonpaper circulated by the former chairman of the CTD. Although the nonpaper merely contains bullet points of "Possible Elements of the Scope & Structure of the Monitoring Mechanism" rather than detailed wording, members continue to debate some of those bullet points. Members appear to agree that the mechanism should monitor the implementation and effectiveness of special and differential treatment provisions in the existing WTO agreements, but some members do not agree to it monitoring provisions arising from the Doha Round negotiations or providing recommendations to improve the "implementation and effectiveness" of special and differential treatment to enable developing countries to integrate further into the multilateral trading system. (56) Assuming that this mechanism is eventually put in place, it will be a positive step in signaling the importance of special and differential treatment, but it is unlikely to change significantly the approach of the WTO to special arid differential treatment or the content of special and differential treatment provisions.

Talks continue in the CTD on seven agreement-specific proposals. These relate to import licensing, sanitary and phytosanitary measures (i.e., health measures such as those to protect human, animal, or plant life or health from pests, diseases, and toxins in foodstuffs), and governmental assistance to economic development with respect to trade in goods. (57) In addition, thirty-eight agreement-specific proposals have been referred to other WTO negotiating bodies, which appear to have made little progress on them. (58) Given the number of these proposals, the outcome of special and differential treatment in the Doha Round will depend significantly on what happens to them.

Conclusion

It is easy to denigrate the status of ongoing talks and proclaim the impossibility of operationalizing special and differential treatment. Some commentators already seem to have given up on this process while others still question the need for special and differential treatment itself. We have concluded that special and differential treatment remains necessary and that it must be operationalized. In any case, the reality is that this is the basis on which the Doha Round has proceeded. Despite the limited number of tangible outcomes to date, the number of proposals and extensive nature of discussions suggests that the members are certainly pursuing the goal of operationalizing special and differential treatment. Accordingly, we think the time has passed to question the goal.

In operationalizing special and differential treatment, we urge WTO members to eschew the superficial attraction of independent bodies engaging in objective analysis to resolve individual disputes or issues in the future. Members must also refrain from following the path already traveled in the Uruguay Round, simply agreeing to hollow words rather than meaningful distinctions. Members themselves need to do the hard work now to agree on measurable criteria for granting special and differential treatment under specific WTO provisions (whether existing or new). This will require substantial economic analysis regarding trade liberalization and development in the context of individual provisions. It is a big task. However, members have already achieved agreement on a number of issues involving special and differential treatment, and they are operating under a provision-specific framework rather than insisting on special and differential treatment as a political right divorced from economic imperatives. The game is not over yet.

Notes

Andrew D. Mitchell is associate professor at Melbourne Law School and former consultant to the International Monetary Fund in Geneva focusing on WTO issues. Tania Voon is associate professor at Melbourne Law School, and former legal officer, Appellate Body secretariat at the WTO. An earlier version of this article was presented at the University of Melbourne's Centre for Public Policy Symposium, "The Future of the Multilateral Trading System" on 7 April 2008. We thank the organizers and attendees at that event for helpful questions and comments, and Jessica Rae for valuable research assistance. Any errors are ours.

(1.) WTO Ministerial Conference, Ministerial Declaration Adopted on 14 November 2001, WT/MIN(0I)/DEC/1 (20 November 2001), para. 44 (Doha Declaration). See also WTO Ministerial Conference, Implementation-related Issues and Concerns: Decision of 14 November 2001, WT/MIN(01)/I7 (20 November 2001) (Implementation Decision), para. 12.1.

(2.) Michael Finger, "Developing Countries in the WTO System: Extending Robert Hudec's Historical Analysis to the Doha Round," paper presented at the Cordell Hull Institute Trade Policy Roundtable "Lessons of the Doha Round for Developing Countries," Washington DC, October 2007, pp. 11,16.

(3.) Michael Finger, "Developing Countries in the WTO System," paper presented at the Productivity Commission, Melbourne, Australia, March 2008.

(4.) See, for example, WTO, World Trade Report 2007 (Geneva: WTO, 2007), pp. 293-294; and Meredith Kolsky Lewis, "WTO Winners and Losers: The Trade and Development Disconnect," Georgetown Journal of International Law 39, no. 1 (Fall 2007): 165.

(5.) On the history of special and differential treatment in the WTO, see Edwini Kessie, "The Legal Status of Special and Differential Treatment Provisions Under the WTO Agreements," in WTO Law and Developing Countries, George Bermann and Petros Mavroidis, eds. (Cambridge: Cambridge University Press), pp. 15-21.

(6.) See, for example, WTO Committee on Trade and Development, Implementation of Special and Differential Treatment Provisions in WTO Agreements and Decisions: Mandatory and Non-mandatory Special and Differential Treatment Provisions--Note by the Secretariat (Corrigendum), WT/COMTD/W/77/Rev.1/Add.1/Corr.1 (4 February 2002), p. 1. For an analysis of how WTO panels and the Appellate Body have interpreted special and differential treatment provisions, see Kessie, "The Legal Status of Special and Differential Treatment," pp. 22-35.

(7.)Decision on Differential and More Favourable Treatment, Reciprocity, and Fuller Participation of Developing Countries, L/4903, BISD 26S/203 (28 November 1979) (Enabling Clause), para. 2(a).

(8.) Constructive remedies could include price undertakings or duties imposed at rates below the margin of dumping. See Panel Report, "European Communities--Anti-Dumping Duties on Imports of Cotton-Typ Bed Linen from India," WT/DS141/R (30 October 2000), para. 6.229.

(9.) Agreement on Implementation of Article VI of the GATT 1994, signed 15 April 1994, entered into force 1 January 1995, LT/UR/A-1A/3 (Anti-Dumping Agreement), art. 15.

(10.) General Agreement on Tariffs and Trade 1994, signed 15 April 1994, entered into force 1 January 1995, LT/UR/A-1A/1/GATT/1 (GATT 1994), art. XXXV1:8. See also Ad Art XXXVI:8; Enabling Clause, para. 5.

(11.) Agreement on Subsidies and Countervailing Measures, signed 15 April 1994, entered into force 1 January 1995, LT/UR/A-1A/9, art. 27.3.

(12.) Understanding on Rules and Procedures Governing the Settlement of Disputes, signed 15 April 1994, entered into force 1 January 1995, LT/UR/A-2/DS/U/1 (DSU), art. 24.

(13.) University of Warwick, The Multilateral Trade Regime: Which Way Forward? The Report of the First Warwick Commission (Nottingham: Hawthornes, 2007), p. 40. See also WTO, World Trade Report 2007, pp. 301-302.

(14.) See, for example, WTO Special Session of the Committee on Trade and Development, Notes on the Meeting of 7 December 2007, TN/CTD/M/32 (9 January 2008), para. 7 (India); and WTO General Council, Committee on Trade and Development, Special and Differential Treatment for Developing Countries in the Multilateral Trading System: Communication from Egypt, WT/GC/W/109, WT/COMTD/W/49 (5 November 1998), paras. 101-102 (Egypt).

(15.) See, for example, Michael Finger and Julio Nogues, "The Unbalanced Uruguay Round Outcome: The New Areas in Future WTO Negotiations," World Economy 25, no. 3 (March 2002): 326, 336; T N. Srinivasan, "Developing Countries in the World Trading System: From GATT, 1947, to the Third Ministerial Meeting of the WTO, 1999," World Economy 22, no. 8 (November 1999): 1053-1054; Bernard Hoekman, Constantine Michalopoulos, and Alan Winters, "Special and Differential Treatment of Developing Countries in the WTO: Moving Forward After Cancun," World Economy 27, no. 4 (April 2004): 482; Rubens Ricupero, "Rebuilding Confidence in the Multilateral Trading System: Closing the 'Legitimacy Gap,'" in The Role of the World Trade Organization in Global Governance. Gary Sampson, ed. (Hong Kong: United Nations University Press, 2001), pp. 49-50; and Bernard Hoekman and Carlos Braga, "Special and Differential Treatment and the Doha Development Agenda: Beyond Tariff Preferences," paper presented at the OECD Global Forum on Trade, "Special and Differential Treatment: Thinking Outside the Box," Bridgetown, Barbados, June 2005, p. 11; WTO, World Trade Report 2007, p. 292.

(16.) University of Warwick, The Multilateral Trade Regime, p. 43.

(17.) Alexander Keck and Patrick Low, "Special and Differential Treatment in the WTO: Why, When, and How?" in Economic Development and Multilateral Trade Co-operation, Simon Evenett and Bernard Hoekman, eds. (Washington, DC: World Bank; New York: Palgrave Macmillan, 2006), p. 147.

(18.) See, for example, Bernard Hoekman, "Operationalizing the Concept of Policy Space in the WTO: Beyond Special and Differential Treatment," Journal of International Economic Law 8, no. 2 (June 2005): 409 (referring to most-favored-nation, national treatment, the prohibition on quantitative restrictions, tariff bindings, and reciprocal trade liberalization); and Jagdish Bhagwati, "The Consensus for Free Trade Among Economists--Has It Frayed?" paper presented at the WTO, Geneva, October 2007, available at www.wto.org/english/news_e/news07_e/bhagwati_oct07_e.htm (accessed 3 July 2008).

(19.) University of Warwick, The Multilateral Trade Regime, p. 38.

(20.) Hoekman, "Operationalizing the Concept of Policy Space," p. 409.

(21.) Robert Hudec, Developing Countries in the GATT Legal System (London: Gower, for the Trade Policy Research Center, 1987), pp. 180-203. For a review and reevaluation of the negotiating stance of developing countries under the GATT 1947, see Rorden Wilkinson and James Scott, "Developing Country Participation in the GATT: A Reassessment," World Trade Review 7, no. 3 (July 2008): 473.

(22.) Hudec, Developing Countries in the GATT, pp. 160-163, 203, 229; Keck and Low, "Special and Differential Treatment," p. 155.

(23.) WTO, World Trade Report 2007, pp. 295-296.

(24.) Gene Grossman and Alan Sykes, "A Preference for Development: the Law and Economics of GSP," World Trade Review 4, no. 1 (March 2005): 63; Keck and Low, "Special and Differential Treatment," pp. 157-158. See also Hoekman, "Operationalizing the Concept of Policy Space," pp. 407-408.

(25.) See, for example, Michael Finger, Francis Ng, and Sonam Wangchuk, "Antidumping as Safeguard Policy," World Bank Policy Research Working Paper 2730 (Washington, DC: World Bank, 2001); and Alan Sykes, "Comparative Advantage and the Normative Economics of International Trade Policy," Journal of International Economic Law 1, no. 1 (March 1998): 80-81.

(26.) See, for example, James Durling and Matthew Nicely, Understanding the WTO Anti-dumping Agreement: Negotiating History and Subsequent Interpretation (London: Cameron, May 2002).

(27.) GATT 1994, art. III.

(28.) Keck and Low, "Special and Differential Treatment," pp. 155, 180-181.

(29.) University of Warwick, The Multilateral Trade Regime, p. 39; Hoekman, "Operationalizing the Concept of Policy Space," p. 422.

(30.) Finger, "Developing Countries in the WTO," pp. 6, 11, 13.

(31.) Hudec, Developing Countries in the GATT, pp. 181, 187.

(32.) Ibid., p. 187.

(33.) See Andrew Mitchell, "A Legal Principle of Special and Differential Treatment for WTO Disputes," World Trade Review 5, no. 3 (November 2006): 446, 469; Andrew Mitchell, Legal Principles in WTO Disputes (Cambridge: Cambridge University Press, 2008), chap. 7.

(34.) Hudec, Developing Countries in the GATT, pp. 187-188.

(35.) See the Statute of the International Court of Justice (26 June 1945), art. 38(1)(a) (referring to international conventions as a source of international law).

(36.) Hoekman, "Operationalizing the Concept of Policy Space," pp. 416-417,422.

(37.) Ibid., p. 417. See also Understanding on Rules and Procedures Governing the Settlement of Disputes.

(38.) Joel Trachtman, "Ensuring a Development-friendly WTO," Bridges Monthly Review 12, no. 1 (February 2008): 18.

(39.) Keck and Low, "Special and Differential Treatment," pp. 147, 175-176, 178-179, 182.

(40.) Ibid., pp. 156,175; WTO, World Trade Report 2007, p. 303. Compare the "situational approach" to special and differential treatment in International Centre for Trade and Sustainable Development, "An Approach to Special and Differential Treatment Based on 'Development Situations,'" ICTSD Issue Paper no. 2 (May 2007).

(41.) WTO, World Trade Report 2007, p. 303.

(42.) Implementation Decision, para. 12.1.

(43.) See, for example, WTO Committee on Trade and Development, Non-Mandatory Special and Differential Treatment Provisions in WTO Agreements and Decisions: Note by the Secretariat--Addendum, WT/COMTD/W/77/Rev.l/Add.3 (4 February 2002); and WTO Committee on Trade and Development, Information on the Utilisation of Special and Differential Treatment Provisions: Note by the Secretariat (Addendum), WT/COMTD/W/77/Rev.l/Add.4 (7 February 2002).

(44.) See the summaries in WTO Special Session of the Committee on Trade and Development, Report by the Chairman, Ambassador Burhan Gafoor (Singapore), to the Trade Negotiations Committee, TN/CTD/15 (28 April 2006); and WTO Special Session of the Committee on Trade and Development, Report by the Chairman, Ambassador Burhan Gafoor (Singapore), to the General Council, TN/CTD/19 (7 May 2007).

(45.) See, generally, Michael Friis Jensen, "African Demands for Special and Differential Treatment in the Doha Round: An Assessment and Analysis," Development Policy Review 25, no. 1 (January 2007): 91. See also, for example, WTO General Council, Preparations for the Fourth Session of the Ministerial Conference: Proposal for a Framework Agreement on Special and Differential Treatment--Communication from Cuba, Dominican Republic, Honduras, India, Indonesia, Kenya, Malaysia, Pakistan, Sri Lanka, Tanzania, Uganda and Zimbabwe, WT/GC/W/442 (19 September 2001).

(46.) WTO Special Session, TN/CTD/15, Annex.

(47.) WTO Special Session, TN/CTD/19, para. 6; WTO Special Session of the Committee on Trade and Development, Report by the Chairman, Ambassador Thawatchai Sophastienphong (Thailand) to the General Council, TN/CTD/21 (13 December 2007), para. 7.

(48.) WTO, Preparations for the Fifth Session of the Ministerial Conference: Draft Cancun Ministerial Text--Second Revision, JOB(03)/150/Rev.2 (13 September 2003), Annex C.

(49.) Agreement on Agriculture, art. 15.2.

(50.) Understanding on the Balance-of-Payments Provisions of the General Agreement on Tariffs and Trade 1994, art. 8.

(51.) Kessie, "The Legal Status of Special and Differential Treatment," p. 15; "WTO News: Special and Differential Treatment," Bridges Monthly Review 7, no. 6 (July-Aug. 2003): 14; "Development Group Split on GIs, S&D," Bridges Daily Update on the Fifth WTO Ministerial Conference, 13 September 2003, pp. 1-2.

(52.) See the discussion in International Centre for Trade and Sustainable Development (ICTSD) and International Institute for Sustainable Development (IISD), Doha Round Briefing Series: Cancun Update on Special and Differential Treatment (August 2003), pp. 3-4.

(53.) WTO Ministerial Conference, Doha Work Programme: Ministerial Declaration Adopted on 18 December 2005, WT/MIN(05)/DEC (22 December 2005) (Hong Kong Declaration), para. 36, Annex F.

(54.) United Nations Committee for Development Policy, Report on the Sixth Session (29 March-2 April 2004), Economic and Social Council Official Records 2004, supp. no. 13, E/2004/33, p. 15.

(55.) WTO Special Session, TN/CTD/19, para. 5; WTO Special Session, TN/CTD/21, para. 9; WTO Special Session, TN/CTD/M/32 (9 January 2008), paras. 22-25.

(56.) WTO Special Session, TN/CTD/19, para. 8, Annex III; WTO Special Session, TN/CTD/M/32, paras. 26-27.

(57.) WTO Special Session, TN/CTD/19, para. 3, Annex II; WTO Special Session, TN/CTD/M/32, paras. 2-25.

(58.) WTO Special Session, TN/CTD/19, para. 6; WTO Special Session, TN/CTD/M/32, para. 21.