Special and Differential Treatment of LDC Parties in RCEP's Dispute Settlement Mechanism: Mere Words or Effective Safeguards?

Article 19.18 of the Regional Comprehensive Economic Partnership requires parties to exercise due restraint in raising matters involving a least developed country party, and in seeking compensation or the suspension of concessions. It also requires a panel report to indicate expressly how special and differential treatment provisions raised by that party have been taken into account. Three of the fifteen parties, Myanmar, Cambodia and Laos, are LDCs.

Written for AfronomicsLaw’s RCEP symposium, this piece asks what that machinery actually gives them.

Less than it appears. Due restraint governs the conduct of the complaining party; it confers no right on the LDC party and gives it nothing to invoke. An obligation to indicate how a provision was taken into account is not an obligation to apply it in any particular way, and a panel discharges it by saying so.

The piece reports the observation that the provision’s real effect is to inhibit the impulses of complaining parties rather than to supply safeguards, allows that this may well be right, and notes that only time and the negotiators know what was intended. It puts to a regional agreement the question I had already put to the WTO.