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

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.