Historically, the mandatory/discretionary distinction has been used as a deference tool in the WTO 'as such' cases. In recent years, the distinction has experienced fundamental changes from a threshold consideration to an analytical tool, and its legal status and implication is increasingly subject to confusion and suspicion. This article proposes a reformulation of the distinction as an analytical tool. The proposal retains the rationale underlying the distinction, i.e. the presumption of good faith, and is formulated as an evidentiary technique that influences evidence evaluation. It has the prospect of serving the function of a deference tool while providing certainty and consistency to the jurisprudence of 'as such' cases.
Journal of World Trade