ࡱ> Y bjbjWW %==8L ]pPDDDXXXX8LXU(  (4444J V((((((($K)?+@(D^44^^@(ZDD44 ZZZ^BD4D4(XXDDDD^(ZZ"hDD(4&턿XX'$Draft: Not for quotation ENFORCEABILITY OF THE LEGAL PROVISIONS RELATING TO SPECIAL AND DIFFERENTIAL TREATMENT UNDER THE ϲʹ AGREEMENTS Edwini Kessie* I. INTRODUCTION Since the creation of the multilateral trading system about fifty years ago, developing countries as a group have not benefitted much from it. Their share in world trade in recent years has hovered around 25 per cent. The major beneficiaries have largely been the East Asian countries and some Latin American countries. The majority of developing countries, especially the least-developed ones, have seen their share in world trade stagnate or decline. According to the ϲʹ Secretariat, the share of the forty-eight countries making up this group in world trade has continuously declined over the years to 0.51 per cent confirming their marginalisation from the multilateral trading system. The lack of active participation of most developing countries in the multilateral trading system and the global economy has been a source of concern to the ϲʹ. This is reflected in the second intent to the preamble of the ϲʹ Agreement, which relevantly provides that Members of the ϲʹ "[recognize]that there is need for positive efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development". The Director-General of the ϲʹ, Mr. Mike Moore, has on numerous occasions expressed his personal commitment and that of the institution he heads to the integration of least-developed countries in the multilateral trading system and the global economy. In that context, he has been pushing for the abolition of all tariffs on products of export interest to these countries. Historically, special and differential treatment was at the forefront of the efforts of the GATT to facilitate the integration of developing countries in the multilateral trading system. In recent times, however, doubts have been expressed as to its effectiveness in assisting developing countries to participate and derive significant benefits from the multilateral trading system. It is conceded, however, that it could be of assistance to countries which pursue appropriate trade and economic policies. The objective of this paper is to determine whether the legal provisions relating to special and different treatment under the ϲʹ Agreements are enforceable in the sense that they could be relied upon by developing countries to compel developed countries to implement certain measures in their favour or whether they could be relied upon by developing countries to take ϲʹ-incompatible restrictive measures. Developing countries have always insisted on the legal enforceability of S & D provisions, whereas developed countries have mostly taken a contrary view. For some developing countries, all the ϲʹ Agreements are indivisible and should be seen as a package which strikes a careful balance between the rights of developing countries and those of developed countries. Some have argued that they agreed to sign the Marrakesh Agreement because they were under the mistaken belief that developed countries would honour the commitments they had assumed in their favour. For their part, developed countries have argued that special and differential treatment should be seen for what it is. In other words, they are voluntary commitments assumed by developed countries in favour of developing countries. That it would be inappropriate to coerce developed countries to grant preferential treatment to developing countries. They further argue that if the position of developing countries were to prevail, it would harden the negotiating positions of developed countries in future multilateral trade negotiations and make them insist on full reciprocity. The article is divided into four parts. Section II briefly examines the concept of special and differential treatment and how it has evolved in the multilateral trading system. Section III identifies five classes of special and differential provisions and discusses whether they are legally enforceable. Section IV, which is the concluding section, summarises the salient points made in this paper. II. THE CONCEPT OF SPECIAL AND DIFFERENTIAL TREATMENT A. Background The cornerstone of the ϲʹ Agreements is the non-discrimination principle, under which there are two main rules. The first one is the most-favoured-nation principle, which prohibits the granting of any benefit, favour, privilege or immunity affecting customs duties, charges, rules and procedures to a particular country or group of countries, unless they are made available to all like products originating in all other Members of the ϲʹ. The second rule is the national treatment principle under which Members of the ϲʹ are prohibited under certain conditions from discriminating between imported products and domestic products. It follows from the non-discrimination principle that no group of countries may be favoured within the GATT/ϲʹ legal framework. Indeed, the original GATT strictly observed this principle, notwithstanding the fact that out of the original twenty-three countries, eleven were developing countries. It was the view of the signatory states that all countries which acceded to the GATT could gain from the multilateral trading system, if they identified and exploited their comparative advantages in the sectors in which they had their strengths. The idea of giving preferences to a certain group of countries was not seen favourably at that time, as it was likely to distort trade and reward inefficient producers. Increasing global welfare necessitated a rules-based non-discriminatory system which guaranteed a level playing-field on which international trade could be conducted. It was the assumption of the contracting parties to the GATT that they would all maintain outward-oriented trade policies and resort to policies that restricted imports or exports sparingly. The very fact that 11 developing countries became original members of the GATT indicates, to some extent, that they did not initially oppose the basic thrust of the philosophy of the GATT. B. The Origins of Special and Differential Treatment In the initial years of the GATT (1948-1955), developing countries participated in tariff negotiations and other aspects of the work of the organisation as equal partners. They were subjected to the same rules as their developed counterparts and had to justify the introduction of trade-restrictive measures. The idea of relaxing the normal rules of the GATT and granting special and differential treatment within the GATT legal framework became prominent after the accession of a number of newly independent developing countries to the GATT in the 1950's. Most of these countries challenged the very basis upon which the GATT was built, i.e. a rules-based, non-discriminatory multilateral trading system. They argued that it was not realistic to expect newly independent countries with fragile economies to compete on a level-playing field with established industrial countries at that time. To bridge the gap between developing and developed countries, the former initially pressed for measures which would enable them to nurture and protect their domestic industries. Their persistent demands led to the redrafting of Article XVIII at the 1954-1955 GATT Review Session. The revamped Article permitted developing countries to disregard, under certain conditions, their tariff commitments and implement non-tariff measures such as quotas and other restrictive measures to promote the establishment of a particular industry within their territories, and also deal with their balance-of-payment difficulties. The special and differential treatment of developing countries within the GATT legal framework was extended by two other provisions, namely Article XVI:4 and Article XXVIII bis. While the former exempted developing countries from the prohibition on export subsidies for manufactured goods, the latter permitted a more flexible use of tariff protection. A significant number of developing countries took advantage of these measures to erect high tariff walls to discourage imports and thereby encourage the growth of domestic industries. With time, developing countries started pressing for further concessions within the GATT legal system. They argued that while previous S & D provisions had enabled them to build and shield their domestic industries from competition, they did not grant them preferential access in the markets of their trading partners. Internal measures implemented by them to boost production of tradeable products should be complemented with external measures to guarantee their easy access in the markets of their major trading partners. The result of their demands led to the adoption of Part IV of the General Agreement, which was entitled "Trade and Development". Part IV was quite significant for it formalised acceptance by developed countries of the non-reciprocity principle under which developed countries gave up their right to ask developing countries to offer concessions during trade negotiations to reduce or remove tariffs and other barriers to trade. In other words, this principle legitimised "free-riding". Insofar as developing countries could benefit from the concessions made by other countries through the application of the MFN principle, they did not see the need to offer reciprocal concessions. Offering reciprocal concessions was an anathema as it would have diluted the effects of the import substitution policies that they were pursuing. Part IV also exhorted developed contracting parties of the GATT to implement measures to increase the trading opportunities of developing countries. Subsequent to the incorporation of Part IV into the General Agreement, the CONTRACTING PARTIES of the GATT decided in 1964 to establish the Committee on Trade and Development (CTD) to monitor the application of the provisions of Part IV. To improve the trading opportunities of developing countries, three waivers were granted from the provisions of Article I between 1966 and 1971. The first was the authorisation given to Australia to offer tariff preferences to developing countries on a specific list of products. The second was the permission granted to all developed countries to maintain Generalised System of Preferences (GSP) schemes in favour of developing countries, while the third was the permission granted pursuant to the Protocol for Trade Negotiations among Developing Countries, for sixteen developing countries to exchange trade concessions among themselves. To have a secure legal basis for the granting of preferences to, and among, developing countries, the CONTRACTING PARTIES adopted the "Enabling Clause" during the Tokyo Round of Trade Negotiations. The Clause is important as it placed the concept of special and differential treatment at the heart of the GATT legal system. It created a permanent legal basis for the following: (i) special and differential treatment with respect to tariff preferences accorded under GSP schemes; (ii) non-tariff measures governed by the Tokyo Round codes; (iii) tariff and, subject to the approval of the CONTRACTING PARTIES, non-tariff preferences among developing countries, in the framework of regional or global trade arrangements; and (iv) deeper preferences, in the context of GSP schemes, for least-developed countries. The extension of special and differential treatment to developing countries under the Enabling Clause failed to increase the participation of a majority of developing countries in the multilateral trading system prompting the question whether it was worth retaining this concept in the GATT legal system. As observed by Hugh Corbet: [T]he developed countries have been allowing, or encouraging, the developing countries to become contracting parties to the GATT without requiring them to abide by the more important obligations of membership. What is more, they have acquiesced in the formal derogation from the principle of non-discrimination, which is the keystone of the GATT, to permit the Generalized System of Preferences (GSP) in favour of developing countries to be established and maintained". III. ENFORCEABILITY OF THE LEGAL PROVISIONS RELATING TO SPECIAL AND DIFFERENTIAL TREATMENT UNDER THE ϲʹ AGREEMENTS Before reviewing the S & D provisions in the various Uruguay Round Agreements to determine whether or not they are legally enforceable, it is in order to discuss the fundamental shift in the attitudes of developing countries vis--vis special and differential treatment during the negotiations. By the 1980's, most developing countries had accepted that the pursuit of import substitution policies had largely been responsible for the economic crises that they were facing. They had realised the important contribution that could be made by international trade in rejuvenating their economies. They reasoned that if special and differential treatment had failed to reverse their marginalisation from the multilateral trading system, then it was probably the appropriate time to consider narrowing its scope by limiting the application of the non-reciprocity principle and giving reciprocal concessions, where appropriate to advance their trading interests.  The idea of developing countries giving reciprocal concessions to their trading partners was foreseen in the Punta del Este Declaration which officially launched the negotiations in 1986. While it made it clear that the negotiations would take into account special and differential treatment and non-reciprocity, it also stated that developing countries would be expected to undertake more obligations as soon as their capacity to do so improved. Unlike the Tokyo Round, where they insisted on the non-reciprocity principle and did not actively participate in the negotiations, developing countries became active in all the areas under consideration. They were determined not to entrust the important function of rule-making to their trading partners A. Special and Differential Provisions in the Uruguay Round Agreements As previously noted, it was a negotiating objective of developing countries to accept a dilution of special and differential treatment in exchange for better market access and strengthened rules. They had realised that they had nothing much to gain from keeping the preferences accorded them in the GATT system by developed countries. They had implicitly accepted the view of the eminent group of persons that they had "allowed themselves to be distracted by the idea of preferencesand [that] developed countries [had] used preferences as an easy substitute for action in more essential areas". Developing countries were convinced that they could gain more benefits from the multilateral trading system, if developed countries abolished barriers to their trade, especially in the agricultural and textiles and clothing sectors. The perceived benefits of the S&D provisions in the GATT pale into insignificance when compared to the potential benefits that could be gained from improved access for products of export interest to them, especially agricultural and textile and clothing products. Furthermore, developing countries became convinced that liberalisation at the multilateral level under the auspices of the GATT was much more secure than the unilateral preferences that they were accustomed to receiving from developed countries. Benefits under GSP schemes and other arrangements such as the Lom Convention were temporary and were linked to a countrys level of economic development. Countries that showed economic promise were likely to be monitored and later graduated from such schemes, as soon as they reached a certain level of development. Bearing in mind all these considerations, developing countries did not seek exemption from any of the multilateral trade agreements. In fact, the "single undertaking" approach which was adopted during the Uruguay Round foreclosed the possibility of developing countries picking and choosing which ϲʹ Agreements they wanted to abide by. Membership of the ϲʹ entailed the acceptance of all the Multilateral Trade Agreements meaning that the concept of S & D was weakened from the very start by the approach which was chosen. According to Laird, Uruguay Round provisions conferring special and differential treatment could be grouped under five main headings: "The development dimension continues to be reflected in the ϲʹ Agreement through provisions for special and differential treatment[which] could be classed in five main groups: provisions aimed at increasing trade opportunities through market access; provisions requiring ϲʹ Members to safeguard the interest of developing countries; provisions allowing flexibility to developing countries in rules and disciplines governing trade measures; provisions allowing longer transitional periods to developing countries; and provisions for technical assistance". We now turn to examine each group in order to determine whether or not the provisions on special and differential are capable of being enforced under the ϲʹ legal system. 1. Provisions aimed at increasing trade opportunities There a number of provisions in the various ϲʹ Agreements that encourage ϲʹ Members to adopt measures which would increase trade opportunities for developing countries, particularly the least-developed ones among them. Others also permit developed countries to grant preferences to developing countries with the view of stimulating their export industry. Most of these provisions were carried over from GATT 1947 into GATT 1994. Thus, Article XXXVII of GATT 1994, for example, relevantly provides that "[t]he developed[Members] shall to the fullest extent possibleaccord high priority to the reduction and elimination of barriers to products currently or potentially of particular export interest todeveloping countries]". (emphasis added) Given the language used, it can be plausibly argued that developed countries are not under a legal obligation to reduce or eliminate barriers to products of current or potential export interest to developing countries. The use of the words "shall to the fullest extent possible" indicates that the obligation on developed countries is qualified. If the draftpersons wanted the obligation to be mandatory, they would have dispensed with the words "to the fullest extent possible". This interpretation is supported by the Vienna Convention on the Law of Treaties which provides in relevant part : "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". In United States - Standards for Reformulated and Conventional Gasoline, the ϲʹ Appellate Body held that the general rule of interpretation as codified in the Vienna Convention had attained the status of a rule of customary or general international law and as such was the standard which had to be used by it and panels in clarifying the provisions of the General Agreement and the other "covered agreements" of the Marrakesh Agreement Establishing the World Trade Organisation. . Article IV of the GATS also contains similar language to that used in Article XXXVII of GATT 1994. It relevantly provides that "[t]he increasing participation of developing country Members in world trade shall be facilitated through negotiated specific commitmentsrelating tothe strengthening of their domestic services capacity and its efficiency and competitiveness, inter alia, through access to technology on a commercial basis;the improvement of their access to distribution channels and information networks; andthe liberalization of market access in sectors and modes of supply of export interest to them". (emphasis added) At first sight, it would appear that the language used is tighter than the one used in Article XXXVII of GATT 1994, but upon further reflection, it could be argued that it does not impose any positive obligations on developed countries. Perhaps, the only obligation it imposes on developed countries is to enter into negotiations with developing countries which specifically request for market access in certain specific sectors. Apart from the fact that this right is generally available to all Members of the ϲʹ under the GATS, it cannot be said with any certainty that negotiations would succeed in opening a developed country's market to services provided by the developing country. It is highly unlikely that an action under the dispute settlement mechanism of the ϲʹ would succeed on the charge that negotiations failed to produce the results that were anticipated by a developing country. Another issue that has been discussed is whether developed countries are obliged to give trade preferences to developing countries. Whereas the Enabling Clause permits developed countries to disregard their obligations under Article I of GATT 1994 to confer preferences on developing countries, it does not contain any language which suggests that it is mandatory. In fact, the absence of any binding legal language has been seized upon by some developed countries to unilaterally graduate certain developing countries from their GSP schemes. Similarly, it could be argued that while the Enabling Clause envisages the formation of global trading arrangements among developing countries, it does not compel them to create such arrangements. 2. Provisions that require ϲʹ Members to safeguard the interests of developing countries Quite a number of ϲʹ Agreements require developed country Members of the ϲʹ to take into account the special situation of developing countries before imposing any measures which might affect their trade interests. Article 10(1) of the Agreement on Sanitary and Phytosanitary Measures, for example, provides that: "In the preparation and application of sanitary or phytosanitary measures, Members shall take account of the special needs of developing county Members, and in particular of the least-developed country Members." It could be argued that this provision obliges developed country Members to consider the effects that their intended sanitary or phytosanitary measures may have on developing countries, but does not compel them to change those measures even if there is the probability that they may negatively impact on the interests of developing countries. The major issue, however, is: what if it is alleged that the developed country failed to consider the effects that its measures may have on developing countries before implementing the measures? Arguably, if evidence could be adduced to establish that, then, in principle, it could be argued that the developed country may have breached the provisions of Article 10.1. It would be extremely difficult, however, to positively prove in a case that a developed county had not taken into consideration the interests of developing countries before implementing its measures. A mere statement by a developed country that it had done so would be difficult to rebut. Even assuming for the sake of argument that evidence is adduced to establish that developed country did not take into account the interests of developing countries, the question remains as to what a panel could do in such circumstances. By virtue of Article 19 of the DSU, a panel or the Appellate Body may recommend that "the Member concerned bring the measure into conformity with that agreement." Since the measure may be in conformity with the SPS Agreement, the only option open to a panel may be to recommend to the developed country to make a mutually satisfactory adjustment. The Agreement on Technical Barriers to Trade contains a similar provision. Article 12.3 of the Agreement provides: "Members shall, in the preparation and application of technical regulations, standards and conformity assessment procedures, take account of the special development, financial and trade needs of developing country Members, with a view to ensuring that such technical regulations, standards and conformity assessment procedures do not create unnecessary obstacles to exports from developing country Members". Whereas the language used appears not to be hortatory, it is doubtful if a successful action can be initiated against a developed country which asserts that it took into account the interests of developing countries in the preparation of its standards and technical regulations, but nevertheless the challenged measure was necessary to fulfil a legitimate objective within the meaning of Article 2 of the TBT Agreement. The major problem with the two provisions which have been examined is that both the SPS and TBT Agreement only impose a duty on developed countries to consider what the impact of their measures would be on developing country Members. They do not specify that developed Members should refrain from implementing or withdraw their measures when it has been demonstrated by a developing country Member that the measures would harm its trade interests. A duty to consider something cannot be equated with a duty to accept it. In the Hormones case, the Appellate Body rejected the claim by the European Communities that the Panel did not take into account the evidence before it: "We note that the Panel considered in detail each of the arguments and related evidence referred to by the European Communities on this particular point. Although the Panel did not agree with the arguments advanced by the European Communities, we do not believe that in doing so, the Panel arbitrarily ignored or manifestly distorted the evidence before it". (emphasis added) Another example of such provisions is Article 15 of the Anti-Dumping Agreement. It provides that: "Possibilities of constructive remedies provided for by this Agreement shall be explored before applying anti-dumping duties where they would affect the essential interests of developing country Members." Here too, developed country Members have an obligation to consider, for example, accepting price undertakings, instead of imposing antidumping duties. However, there is no obligation upon them to provide such alternative remedies. 3. Provisions permitting developing countries to assume lesser obligations As previously noted, instead of seeking a total exemption from the ϲʹ disciplines, developing countries demanded and obtained the right to assume fewer obligations under a number of Agreements. Under the Agreement on Agriculture, for example, developing countries were required to undertake lesser commitments than their developed counterparts and were also given a longer timeframe to implement their obligations. They are obliged to reduce their tariffs on average by 24 percent over 10 years, while developed countries are required to reduce theirs by 36 percent over 6 years. While developing countries are required to make at least a 10 percent reduction on each tariff line, developed countries are expected to make a minimum reduction of 15 percent on each tariff line. With respect to tradedistorting domestic support measures, developing countries are expected to reduce such measures by 13.3 percent over 10 years, while developed countries are required to reduce theirs by 20 percent over ten years. Regarding export subsidies, developing countries are expected to reduce their value and volume by 24 percent and 14 percent, respectively over ten years, while developed countries are expected to reduce theirs by 21 percent and 36 percent, respectively. Least-developed countries were exempted from making any reduction commitments. It is clear that the above provisions in the Agriculture Agreement have legal force, in the sense that a developing country cannot be compelled by any other Member of the ϲʹ to undertake more obligations than are actually provided for under the Agreement. On the other hand, it would be open to any developing country Member to challenge any developed country which does not meet its obligations under the Agreement. The Subsidies Agreement also confers S&D treatment on developing countries, but only to a limited extent. Least-Developed countries and developing countries whose GDP per capita are less than $1000 are exempted from the prohibition against export subsidies, provided that they do not attain export competitiveness in a particular product for two consecutive years. Other developing countries are expected to phase out export subsidies within 8 years of the coming into force of the ϲʹ Agreement, although upon request, it could be extended for a further twoyear period. Developed countries were given three years within which to phase out their export subsidies, while countriesintransition were given seven years to do so. With respect to import substitution subsidies, leastdeveloped countries, developing countries, countriesintransition and developed countries were given 8 years, 5 years, 7 years and 3 years, respectively to phase out such subsidies after the coming into force of the ϲʹ Agreement. Regarding actionable subsidies, while there is a presumption of serious prejudice in the case of certain subsidies provided by governments of developed countries, there is no such presumption in the case of similar subsidies provided by governments of developing countries. Serious prejudice in cases involving subsidies allegedly provided by governments of developing countries have to be proved by positive evidence. The enforceability of the special and differential provisions in the Agreement on Subsidies and Countervailing Measures was examined by the panel and the Appellate Body in Brazil - Export Financing Programme for Aircraft. Brazil, as a developing country, was alleged to have given prohibited export subsidies to a civilian aircraft manufacturer, Embraer. Brazil argued, inter alia, that even if it was providing prohibited export subsidies, it had a right under Article 27 of the SCM Agreement to provide such subsidies for a period of eight years from the date of entry into force of the ϲʹ Agreement. The only obligation it had to satisfy was that it had not increased its level of export subsidies since 1991. Canada disagreed and argued that Brazil was in breach of Article 3 of the SCM Agreement and since Article 27 was an exception to the former, Brazil had the burden of proof in establishing that it was in conformity with the provisions of Article 27. Brazil responded to the Canadian submission as follows: "[T]hat the clearly stated object and purpose of Article 27 is to provide special and differential treatment to developing country members. Its context is made clear from its first paragraph which states without qualification that, "Members recognise that subsidies may play an important role in economic development programmes of developing country Members." The Article consists of carefully negotiated language that reflects a carefully drawn balance of rights and obligations of Members. Its text states explicitly and unequivocally that "the prohibition of paragraph 1(a) of Article 3 shall not apply" to developing countries, subject to specified conditions. It is the burden of Canada, as the complaining party, to establish that Brazil has not complied with these conditions." The panel found for Brazil on this point. It held that: "Naturally, there will be no inconsistency with a given provision if a Member is explicitly excluded from its scope of application or a situation is explicitly identified in the text of the Agreement as falling outside the scope of application of a particular provision. In this regard, we recall that Article 27.2(b) states that: "The prohibition of paragraph 1(a) of Article 3 shall not apply to: other developing country Members for a period of eight years from the date of entry into force of the ϲʹ Agreement, subject to compliance with the provisions in paragraph 4." (emphasis added) Clearly, on the basis of the plain meaning of the text of the provision, developing country Members falling within Article 27.2(b) -- that is, developing country Members (other than those referred to in Annex VII) that are in compliance with the provisions of Article 27.4 do not fall within the scope of application of the prohibition contained in Article 3.1(a) until 1 January 2003." The import of the panel decision is that some S & D provisions can successfully be relied upon by developing countries to defend themselves against allegations of breaches of the ϲʹ Agreement. 4. Provisions Relating to Transitional Time Periods With the notable exception of the Anti-Dumping Agreement and the Pre-shipment Inspection Agreement, almost all the major ϲʹ Agreements contain longer transitional periods for developing countries to comply with their obligations. The flexibility takes the form of an agreed delay, on the part of developing countries, of certain or all provisions of the agreement concerned. Under the Agreement on Agriculture, for example, developing countries were given 10 years to implement their obligations, while developed countries were given 6 years. Under the TRIPS Agreement, least-developed countries, developing and developed countries were given respectively, 11 years, 5 years and 1 year to bring their legislation into conformity with ϲʹ disciplines. A developing country which was not providing product patents under its legislation was given an additional five years to comply with its obligations under the Agreement. The TRIMS Agreement gave least-developed countries, developing countries and developed countries 7 years, five years and two year, respectively after the coming into force of the ϲʹ Agreement to phase out all their inconsistent trade-related investment measures. The Customs Valuation Agreement gave developing countries which were not parties to the Tokyo Round Code on Customs valuation 5 years within which to comply with their obligations under the Agreement. Developing countries were also given the possibility of delaying the application of the "computed value " method of valuation for a further 3 years. Provisions falling under this grouping are legally enforceable in the sense that if a developing country is within the transitional period, it is, in principle, insulated from any actions that may be brought by a developed country. In India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, the issue was not whether India could avail itself of the provisions of Article 65 of the TRIPS Agreement, but whether it complied with the conditions specified in the Article 70.8. As noted by the panel: "A critical part of the deal struck was that developing countries that did not provide product patent protection for pharmaceuticals and agricultural chemicals were permitted to delay the introduction thereof for a period of ten years from the entry into force of the ϲʹ Agreement. However, if they chose to do so, they were required to put in place a means by which patent applications for such inventions could be filed so as to allow the preservation of their novelty and priority for the purposes of determining their eligibility for protection by a patent after the expiry of the transitional period." 5. Provisions Relating to Technical Assistance A number of the ϲʹ Agreements require the ϲʹ or its developed Members to provide technical assistance to developing countries to enable them to comply with their obligations under the various ϲʹ Agreements and also to assist them to participate effectively in the multilateral trading system. Article 9 of the Agreement on Sanitary and Phytosanitary Measures, for example, provides that: "Members agree to facilitate the provision of technical assistance to other Members, especially developing country Members, either bilaterally or through the appropriate international organizations. Such assistance may be, inter alia, in the areas of processing technologies, research and infrastructure, including in the areas of processing technologies, research and infrastructure, including for the purpose of seeking technical expertise, training and equipment to allow such countries to adjust to, and comply with, sanitary or phytosanitary measures necessary to achieve the appropriate level of sanitary or phytosanitary protection in their export markets" Where substantial investments are required in order for an exporting developing country Member to fulfil the sanitary or phytosanitary requirements of an importing Member, the latter shall consider providing such technical assistance as will permit the developing country member to maintain and expand its market access opportunities for the product involved." (emphasis added) The issue has been raised whether or not this Article contains binding legal language. Some developing countries seem to be of the view that it does and that failure by developed countries to provide targeted assistance in this area could be a cause of a complaint under the DSU. The use of the words "agree to facilitate" and "shall consider" would seem to indicate that it was not intended to make the provision of technical assistance obligatory. In other words, it is up to a developed Member country to decide whether or not it is going to provide assistance to a particular developing country. The same applies to technical assistance provided by ϲʹ and other multilateral institutions. The provision of technical assistance is usually dependent on the availability of funds. IV. CONCLUSION One of the most vexed questions which has confronted trade policymakers in recent years is whether or not developing countries should be given special and differential treatment within the GATT/ϲʹ legal framework to facilitate their integration into the multilateral trading system. On the one hand, some scholars have argued that special and differential treatment has not worked in the past, and that the way forward is to let developing countries implement all the relevant ϲʹ disciplines. Implementing these disciplines, it has been argued, will help developing countries lock-in their domestic reforms and send a clear signal that they are committed to policy reform. Special and differential treatment makes developing countries complacent and prevent them from making the difficult choices which would guarantee long term, sustainable growth. A majority of developing countries disagree that special and differential treatment should be abolished. They argue that it has helped them to increase their exports and attribute the reason why most of them have not been able to take advantages of the preferences to supply-side constraints. They agree that special and differential treatment to pursue import substitution policies has not helped them in the past and that what they are seeking now is better market access for products of current and potential export interest to them. They also want longer time-frames to implement their obligations, and improved and targeted technical assistance which would not only help them to comply with their ϲʹ obligations, but also facilitate their effective participation in the multilateral trading system. Developing countries have also been concerned about the legal enforceability of special and differential provisions. They are of the view that since they form an integral part of the ϲʹ Agreements, they should have the force of law and not be regarded as "best endeavours" clauses which can be flouted at will by developed country Members. It would certainly be much better, if in the future, S & D provisions are clarified in terms of identifying which ones are legally enforceable. At the moment, much of the ϲʹ provisions dealing with special and differential treatment could be said to be unenforceable, as they are expressed in imprecise and hortatory language. *The author is a Counsellor in the Technical Cooperation Division of the World Trade Organization. The views expressed in this paper are those of the author and do not represent the views of the ϲʹ. Helpful comments were provided by Reto Malacrida, Werner Zdouc, Primitivo Gomez and Maarten Smeets. All mistakes are, however, mine. See generally ϲʹ Secretariat, "Participation of Developing Countries in World Trade: Recent Developments, and Trade of Least-Developed Countries", WT/COMTD/W/65; 15 February 2000. Ibid at p3. The countries are Brazil, Burma (Myanmar), China, Ceylon (Sri Lanka), Chile, Cuba, India, Lebanon, Pakistan, Southern Rhodesia (Zimbabwe) and Syria. The ϲʹ does not have any set criteria for determining whether a country is developed or developing. In other words, it is a self-selection process. As regards, least-developed countries, the ϲʹ follows the classification of the United Nations, which currently indicates that there are forty-eight least-developed countries in the world. Laird, Developing Countries and the Multilateral Trading System: Past and Present, (1999) p10. During the Kennedy Round, the phrase was interpreted as follows: "[t]here will, therefore, be no balancing of concessions granted on products of interest to developing countries by developed participants on the one hand and the contribution which developing participants would make to the objective of trade liberalization on the other and which it is agreed should be considered in the light of the development, financial and trade needs of developing countries themselves. It is, therefore, recognized that the developing countries themselves must decide what contributions they can make": GATT, Com.TD/W/37, p9. Quoted from Hudec, Developing Countries in the GATT Legal System (Hampshire: Gower Publishing Company Ltd; 1987)p xvi. The eminent group of persons were of the view that special and differential treatment had done nothing to advance the interests of developing countries in the multilateral trading system. Rather it had encouraged "the tendency to treat them as being outside the system": supra note 18 at p34.  Supra note 18 at p44. Supra note XXX at p20. See Article 31(1) of the Vienna Convention. WT/DS2/AB/R; adopted on 20 May 1996 by the Dispute Settlement Body; see DSR, 1996:1 at p16.  Article 15 of the Agreement on Agriculture.  A country will be deemed to have attained export competitiveness in a given product, when its share reaches 3.25 percent of world trade for two consecutive years. WT/DS46/R, para 4.157 at p44 Laird, supra note xx at p23. 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