Paragraph 3(a) of the Enabling
Clause provides that any
One objective of the WTO can
be fulfilled by promoting trade
preferences for developing
countries based on the interests of
the recipient countries
The MFN principle in Article I:1
requires WTO Members to treat
"like products ... equally,
irrespective of their origin"
EUROPEAN
COMMUNITIES –
CONDITIONS FOR THE
GRANTING OF TARIFF
Legend:
PREFERENCES TO
DEVELOPING
COUNTRIES
Report of the Appellate Body of WTO
AB -- 2004 -- 1
An experimental argument map
"differential and more
Those interests that developing favourable treatment ... shall be
countries have in common designed to facilitate and
promote the trade of
Those interests shared by sub- developing countries and not
Additional preferences
categories of developing to raise barriers to or
may be granted to developing
countries based on their create undue difficulties
Provided that such treatment is in This is the meaning of footnote 3 countries with particular needs
particular needs For the purpose of providing for the trade of any
accordance with the to paragraph 2(a) of the Enabling
differential and more favourable other contracting
conditions set out in the Clause Additional preferences are parties." This requirement
treatment to developing countries, Preference-granting countries are
Enabling Clause preferences that may be Provided that such additional applies,  a fortiori,  to any
required, by virtue of the term preferences are not inconsistent Paragraphs 3(a) and 3(c) of preferential treatment granted
There is an apparent To the extent that there is a granted to some developing
The Enabling Clause applies "non-discriminatory", to ensure with other provisions of the the Enabling Clause impose to one GSP beneficiary that is
conflict between the MFN conflict between measures under countries in accordance with
The Enabling Clause is an concurrently with Article I:1 that identical treatment is available Enabling Clause, including the specific conditions on the granting not granted to another
obligation and the objective of the Enabling Clause and the MFN their particular needs, but not
exception to Article 1.1 of the to all similarly-situated GSP requirements that such of different tariff preferences
promoting trade preferences obligation in Article I:1, the  The Enabling Clause takes to other countries that do not
GATT beneficiaries, preferences be "generalized" and among GSP beneficiaries Paragraph 3(c) of the Enabling
for developing country Enabling Clause prevails over precedence  to the extent of a 'Similarly situated' countries have the same needs
"non-reciprocal" Clause authorizes preference-
members of WTO Article I:1 conflict with Article 1:1 Because it is the more specific are those that have the granting countries to
rule "development, financial and trade "respond positively" to
For example Article XX(g) needs" to which the treatment in
authorizes measures for But Article XX(g) authorization question is intended to respond
"needs" that are  not 
necessarily common or
environmental conservation which applies to measures that would
shared by all developing
is an important objective referred otherwise be contrary to the
WTO objectives may well be to in the Preamble to the WTO provisions of the Agreement countries. Responding to
AB Argument the "needs of developing
pursued through measures taken Agreement
countries" may thus entail
under exceptions provisions
Interpolation As well as through provisions treating different developing-
containing positive obligations country beneficiaries differently
Main line of argument
"Non-discriminatory" preferences
do not require the granting of
--- comments to -- "identical tariff preferences" to all
www.petergallagher.com.au beneficiaries