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The member countries of the World Trade Organization (WTO) joined either as original members or through the Article XII accession process. To date, over 20 members have joined through accession including most notably China in 2001. Recently, Vietnam completed its accession negotiations and Russia made do so sometime in 2007. Governments joining the WTO through accession have to abide by WTO rules, as all members do, but applicant governments are also often asked to accept individualized rules tailored for them through negotiations. These special rules have not received extensive examination in previous scholarship. The purpose of this article is to put forward a framework for understanding these market-oriented rules negotiated between applicant governments and the WTO. The first part of the article defines and illustrates the categories of applicant WTO-plus, applicant WTO-minus, incumbent WTO-plus, incumbent WTO-minus, and some residual categories. The second part of the article considers the potential enforceability of these special provisions under the WTO Dispute Settlement Understanding by examining options for a theory of the case as to why enforceability is justified. The article includes that accession commitments are enforceable as secondary WTO law under Article XII, rather than as a treaty between an international organization and a state.

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GWU Law School Public Law Research Paper No. 237; GWU Legal Studies Research Paper No. 237

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