Testing the Chapeau-Tests on Special and Differential Treatment. How WTO Case-Law Could Inform Flexibilities in General WTO Law (DRAFT Discussion Paper for the 5th PEPA SIEL Conference, Luxembourg, 14-15 April 2016)

Sieber, Charlotte (January 2017). Testing the Chapeau-Tests on Special and Differential Treatment. How WTO Case-Law Could Inform Flexibilities in General WTO Law (DRAFT Discussion Paper for the 5th PEPA SIEL Conference, Luxembourg, 14-15 April 2016) ResearchGate 10.13140/RG.2.1.2600.4087

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Most recent case-law and scholarly work suggests that the exception clauses in GATT Art. XX and GATS Art. XIV provide a meaningful regulatory instrument in balancing domestic trade policies. Arguably, results from the two-tier analysis could serve as a basis for a legal benchmark for the scope of Special and Differential Treatment (SDT) flexibilities. SDT could theoretically altogether be replaced with the general exceptions if they were to provide sufficient and meaningful flexibility for developing countries and Least-Developed Countries (LDCs). This paper assesses the suitability of the two-tier analysis for providing a meaningful legal benchmark for the scope of SDT flexibilities in a case-study on GATS Art. V flexibility, and discusses the implications of replacing SDT flexibility by the general exception clauses. It shows that the two-tier analysis indeed provides for an interesting legal instrument for introducing transparency and graduation in SDT flexibilities, but that the general exceptions do not appear suitable for replacing SDT flexibilities as long as their lists of legitimate policy objectives remains unchanged.

Item Type:

Working Paper

Division/Institute:

02 Faculty of Law > Department of Economic Law > World Trade Institute
10 Strategic Research Centers > World Trade Institute

02 Faculty of Law > Department of Economic Law > NCCR International Trade Regulation

UniBE Contributor:

Sieber, Charlotte

Subjects:

300 Social sciences, sociology & anthropology > 340 Law
300 Social sciences, sociology & anthropology > 380 Commerce, communications & transportation

Publisher:

ResearchGate

Language:

English

Submitter:

Pablo Rahul Das

Date Deposited:

05 May 2017 09:51

Last Modified:

20 Feb 2020 08:51

Publisher DOI:

10.13140/RG.2.1.2600.4087

BORIS DOI:

10.7892/boris.98137

URI:

https://boris.unibe.ch/id/eprint/98137

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