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)

Abstract

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.