Developing country members of the WTO benefit from special and differential treatment, a flexible application of WTO principles and rules according to their developmental needs and capacities. However, there has been widespread criticism that special and differential treatment is not granted to acceding countries – almost all of which today belong to the group of developing countries. If anything, it is argued, these countries receive an “inverse” special and differential treatment as a result of which they are compelled to offer further reaching liberalisation commitments than WTO members themselves.
The main criticism is that both the procedure and outcomes of accession negotiations do not fully take into account the demands of fairness. With regard to procedural fairness, acceding countries have to undergo a long, resource consuming and cumbersome process since the end of the Uruguay Round, from which WTO founding members were spared. Fairness of outcomes – or substantive fairness – is lacking because accession countries have to liberalise more than WTO incumbent members.
The main argument of the paper is that WTO accessions since 1995 indeed lack both procedural and substantive fairness. Central to our conception of fairness is a demand to avoid bias in accession negotiations, taking note of the interests and concerns of acceding countries and in particular the need to avoid being influenced by member countries’ unrestrained vested interest. The main problem, we submit, is that accession rules, although elaborate and specific regarding procedural matters, do not prevent WTO members from capitalising on their bargaining power vis-à-vis acceding countries, which in turn leads to unfair outcomes of the accession process. Finally, the paper shows how the lack of fairness in accession contributes to the WTO’s growing “legitimacy crisis”.