Special and Differential Treatment: A New Factor Explaining LDC Engagement with the WTO Dispute Settlement System?

Abstract

The factors explaining the lack of participation and engagement by Least Developed Countries (LDCs) in the World Trade Organization (WTO) dispute settlement mechanism (DSU) have been the subject of much academic discourse. This paper posits the existence of a new factor that will inform and expand this discourse. The paper examines the pursuit of Special and Differential Treatment (S&D) by LDCs during the GATT era, positing that S&D became a key driver of LDC policy during this period. It is argued that during the Uruguay Round of Trade Negotiations, this S&D-driven policy led the LDCs to seek a bespoke LDC dispute settlement system extraneous to, and separate from, the DSU mechanism agreed upon by the vast majority of GATT contracting parties. This paper concludes that the clearly espoused desire of LDCs neither to participate in nor to be associated the DSU, coupled with their clearly expressed requests for a bespoke LDC-only dispute settlement mechanism; together provide a powerful new reason why LDCs have not more actively engaged with the DSU.