A Framework for Thinking about the 'Discretion' in the Mandatory/Discretionary Distinction

Simon Lester

Journal of International Economic Law, 2011, vol. 14, issue 2, 369-402

Abstract: The mandatory/discretionary distinction that has been applied to 'as such' challenges in WTO disputes is the subject of a good deal of disagreement, both as to its scope and its continued applicability. In this piece, I put forward a framework for thinking about the kinds of discretion that may exist in a measure, focusing on two general categories of discretion and presenting a way to evaluate the 'degrees' of discretion based on these categories. This framework can be applied regardless of which view is taken on the proper role of the distinction. In addition, I offer some thoughts on the basis for the distinction between mandatory and discretionary measures and, taking into account the framework developed, on how the distinction should be applied. Oxford University Press 2011, all rights reserved, Oxford University Press.

Date: 2011
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