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.
As China is increasingly ‘going global’, foreign direct investment under its Belt and Road Initiative is becoming heavily scrutinized. One of the concerns is that Chinese companies establishing themselves in third countries would be unfairly advantaged by the financing they receive under China’s expansionist strategy. This financing gives rise to a situation that had long been described as ‘unrealistic’, in which a government subsidizes a firm outside of its territory. When such a firm’s products are exported to third countries, could such financing be disciplined under the World Trade Organization Agreement on Subsidies and Countervailing Measures? Should such financing, which enhances development in the receiving countries, be disciplined at all? The authors shed light on these issues and provide a preliminary guidance on how to structure this problem under international trade law.
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