Special and Differential Treatment Under the World Trade Organization: A Legal Typology

Vineet Hegde and Jan Wouters

Journal of International Economic Law, 2021, vol. 24, issue 3, 551-571

Abstract: The World Trade Organization (WTO) Secretariat has developed a typology to categorize various Special and Differential Treatment (SDT) provisions in WTO agreements. This typology is based on the aims and intended effects of such provisions. However, it fails to highlight their legal effects. A legal typology is particularly important because the developed Members note that the developing Members have taken advantage of the system through this treatment and intend to abolish SDT for certain advanced developing Members, whereas developing Members have called SDT a non-negotiable and treaty-embedded ‘right’. Moreover, developing Members have called for an effective operation of SDT provisions. These claims give rise to two questions: (i) do SDT provisions provide legal rights to developing Members? (ii) if so, what provisions confer differential treatment rights? In this article we devise a legal typology for SDT by distinguishing the provisions that confer rights and duties from provisions that constitute merely political commitments. We also consider the types, and the scope, of rights and duties that result in a special or differential treatment. Our results, inter alia, highlight that only 21% of SDT provisions oblige developed Members to provide differential treatment to developing Members. The rest are mere best-effort endeavors and political commitments. We provide our observations for this design feature and explain the underlying rationale of developing Members’ position on SDT. Lastly, we provide a blueprint to resolve the North–South deadlock.

Date: 2021
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