Legalization of Development in the WTO. Between Law and Politics. By AMIN ALAVI

Abstract

This book discusses to what extent the concept of development has legal implications for WTO law. The text focuses on the impact of the scattered WTO law provisions that provide special and differential treatment for developing countries. The author perceives of these provisions as constituting a specific legal regime regulating the status of developing countries originally within GATT, and now within the WTO. Perhaps surprisingly, the WTO treaties do not contain a legal definition of developing countries, leaving it up to the members to self classify as ‘developing’, and running the risk that their classification is contested by others. Intergovernmental economic organizations, such as the World Bank group or the OECD do define developing countries for the purposes of their operations. Clearly, such a definition helps in ensuring implementation of the legal provisions that are deemed to apply to that specific category of countries only. A review of the WTO dispute settlement case law on the special and differential treatment provisions leads to a finding that only in a few cases, there has been a ‘positive effect’ (p. 179) on rulings. The author identifies four reasons for this ‘failure’: the invoked provision may not be applicable to the situation, the facts do not support the invoking party, the invoking party does not back up its claims by providing sufficient information, or the judiciary does not interpret the provisions in a ‘development friendly’ manner. From a doctrinal point of view, the final reason is the most intriguing one. The author discusses the interpretive techniques used by the DSU, and finds that ‘the judiciary applied a literal style of interpretation and, as a result, put more weight on the non-binding nature of the provisions and their impreciseness rather than their potential impact on developing countries’ situations’ (p. 22). In the author's view, nothing prevents the WTO judiciary from applying an object and purpose method. This, he argues, would be more appropriate, precisely because the special and differential treatment provisions are intended to provide a degree of flexibility that cannot be achieved by means of a literal interpretation.