MJIEL Vol 15 Issue 1 2018 - Article 3
Liminal Spaces: Special and Differential Treatment as an Incompletely Theorised Agreement
Stephanie Switzer
ABSTRACT: Drawing on earlier work by the author on the application of economic contract theory to preferential treatment in favour of developing countries1, this article is intended to provoke some reflections on special and differential treatment within the World Trade Organisation (WTO). The concept of special and differential treatment, defined as measures which aim to address developing and least developed countries (LDC) relevant development, financial and trade needs, has the potential for far-reaching impacts within the trading regime, depending upon how it is interpreted. This article seeks to develop a theoretical perspective on special and differential treatment. In developing this perspective, Cass Sunstein's theory of the incompletely theorised agreement is utilised to interrogate the core features of special and differential treatment. Using this analytical lens, the article traces the construction of special and differential treatment as an incompletely theorised agreement and elucidates on the consequences of this for the operation of such treatment as an effective tool to address the development, financial and trade needs of developing countries. The article then evaluates recent changes to special and differential treatment which can be construed as an effort to more completely theorise such treatment. The article concludes by positing that special and differential treatment currently resides within a liminal or transitional space. By tracing the contours of such liminality, and through the use of the lens of the incompletely theorised agreement, this article seeks to contribute original insights to this area of trade law and practice.

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