IDEAS home Printed from
   My bibliography  Save this article

In Search of Relevant Discretion: The Role of the Mandatory/Discretionary Distinction in WTO Law


  • Nicolas Lockhart
  • Elizabeth Sheargold


When deciding whether a general rule is inconsistent with the law of the World Trade Organization (WTO), a distinction has been drawn between rules that 'mandate' violations of WTO law, and rules that provide the 'discretion' to violate WTO law. Measures that include a discretionary element have, under the 'mandatory/discretionary distinction', been saved from a finding that they are 'as such' WTO-inconsistent. This article explores how the mandatory/discretionary distinction has been developed and applied in WTO law. It also questions the sharp divide between 'mandatory' and 'discretionary' measures that is implied by the distinction; and it argues that discretion comes in different forms, which should not all have the same relevance when assessing the WTO-consistency of rules. The article proposes a basic taxonomy involving three different types of discretion: the discretion to adopt or withdraw rules; the discretion to apply or not apply rules; and the discretion to select meaning through the interpretation and application of rules. For each category, the article offers views on the relevance of that type of discretion in examining the WTO-consistency of a general rule. Oxford University Press 2010, all rights reserved, Oxford University Press.

Suggested Citation

  • Nicolas Lockhart & Elizabeth Sheargold, 2010. "In Search of Relevant Discretion: The Role of the Mandatory/Discretionary Distinction in WTO Law," Journal of International Economic Law, Oxford University Press, vol. 13(2), pages 379-421, June.
  • Handle: RePEc:oup:jieclw:v:13:y:2010:i:2:p:379-421

    Download full text from publisher

    File URL:
    Download Restriction: Access to full text is restricted to subscribers.

    As the access to this document is restricted, you may want to search for a different version of it.

    More about this item


    Access and download statistics


    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:oup:jieclw:v:13:y:2010:i:2:p:379-421. See general information about how to correct material in RePEc.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Oxford University Press) or (Christopher F. Baum). General contact details of provider: .

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    We have no references for this item. You can help adding them by using this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service hosted by the Research Division of the Federal Reserve Bank of St. Louis . RePEc uses bibliographic data supplied by the respective publishers.