Developing countries in WTO dispute settlement

11.2 Special and differential treatment

Special and differential treatment takes a different form in the DSU than in the other covered agreements, which contain the substantive rules governing international trade. The DSU recognizes the special situation of developing and least-developed country Members by making available to them, for example, additional or privileged procedures and legal assistance.

Developing countries may choose a faster procedure, request longer time-limits, or request legal assistance. (WTO) Members are encouraged to give special consideration to the situation of developing country Members. These rules will be specifically addressed below. Some are applied very frequently, but others have not yet had any practical relevance. A general criticism is that several of these rules are not very specific.

Special and differential treatment in consultations  back to top

During consultations, Members should give special attention to the particular problems and interests of developing country Members (Article 4.10 of the DSU). If the object of the consultations is a measure taken by a developing country Member, the parties may agree to extend the regular periods of consultation. If, at the end of the consultation period, the parties cannot agree that the consultations have concluded, the DSB chairperson can extend the time-period for consultations (Article 12.10 of the DSU).

Special and differential treatment at the panel stage  back to top

Special and differential treatment is also available at the panel stage. When a dispute is between a developing country Member and a developed country Member the panel must, upon request by the developing country Member, include at least one panelist from a developing country Member (Article 8.10 of the DSU).

If a developing country Member is the respondent, the panel must accord it sufficient time to prepare and present its defence. However, this must not affect the overall time period for the panel to complete the dispute settlement procedure (Article 12.10 of the DSU). One panel has already applied this provision by granting the responding developing country Member, upon request, an additional period of ten days to prepare its first written submission to the panel, despite the complainant’s objection.¹

When a developing country Member is party to a dispute and raises rules on special and differential treatment of the DSU or other covered agreements, the panel report must explicitly indicate the form in which these rules have been taken into account (Article 12.11 of the DSU). This is meant to make transparent how effective these rules have been in a given case and to show how they have actually been applied.

Special and differential treatment in implementation  back to top

At the stage of implementation, the DSU mandates that particular attention be paid to matters affecting the interests of developing country Members (Article 21.2 of the DSU). This provision has already been applied repeatedly by arbitrators acting under Article 21.3(c) of the DSU in their determination of the reasonable period of time for implementation.² One arbitrator has, relying on Article 21.2 of the DSU, explicitly granted an additional period of six months for implementation in the particular circumstances of the case.³

In the framework of supervising the implementation, the DSB must 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 (Article 21.7 of the DSU). In considering what appropriate action to take in a case brought by a developing country Member, the DSB has to consider not only the trade coverage of the challenged measures, but also their impact on the economy of developing country Members concerned (Article 21.8 of the DSU).

Accelerated procedure at the request of a developing country Member — Decision of 5 April 1966  back to top

If a developing country Member brings a complaint against a developed country Member, the complaining party has the discretionary right to invoke, as an alternative to the provisions in Articles 4, 5, 6 and 12 of the DSU, the accelerated procedures of the Decision of 5 April 1966.⁴ The rules and procedures of the 1966 Decision prevail over the corresponding rules and procedures of Articles 4, 5, 6 and 12 of the DSU to the extent that there is a difference (Article 3.12 of the DSU).

This Decision provides, first, that the Director-General may use his good offices, and conduct consultations at the request of the developing country with a view to facilitating a solution to the dispute, where the consultations between the parties have failed. Second, if these consultations conducted by the Director-General do not bring about a mutually satisfactory solution within two months, the Director-General submits, at the request of one of the parties, a report on his action. The DSB then establishes the panel with the approval of the parties. Third, the panel must take due account of all circumstances and considerations relating to the application of the challenged measures, and their impact on the trade and economic development of the affected Members. Fourth, the Decision provides for only 60 days for the panel to submit its findings from the date the matter was referred to it. Where the Panel considers this time-frame insufficient it may extend it with the agreement of the complaining party.

The time-frames of the Decision were applied only once under GATT 1947⁵, but have not yet been applied in the WTO. In practice, developing country Members tend to prefer to have more time to prepare their submissions. However, they often insist that the panel respect the overall time-frames for the completion of the procedure.

Notes:

1. Panel Report, India — Quantitative Restrictions, para. 5.10.  back to text

2. Award of the Arbitrator, Indonesia — Autos (Article 21.3), para. 24; Award of the Arbitrator on Chile — Alcoholic Beverages (Article 21.3), para. 45; Award of the Arbitrator, Argentina — Hides and Leather.  back to text

3. Award of the Arbitrator, Indonesia — Autos (Article 21.3), para. 24.  back to text

4. BISD 14S/18.  back to text

5. Panel Report, EEC (Member States) — Bananas I.  back to text