Establishing a Legal Framework of Special and Differential Treatment under the WTO; Definitive Rights for Developing Countries

Abstract

Special and Differential Treatment (S&DT) under the World Trade Organization (WTO) has been pivotal in aiding Developing Countries adapt to WTO rules. S&DT provisions under WTO law, afford Developing Members favourable or preferential treatment over Developed Countries. The provisions currently spans across numerous Agreements on areas which include a number of broad categories, specifically; provisions aimed at increasing trade opportunities through market access, provisions requiring WTO Members to protect the interest of Developing Countries (protective measures), provisions on flexibility of commitments, provisions that allow longer transitional periods to Developing Countries, provisions on technical and financial assistance, and provisions specifically for Least Developed Countries.

Preferential treatment derogates from the fundamental WTO principle of non-discriminatory treatment. The provisions, scattered across numerous WTO Agreements and legal texts, have been of paramount importance in increasing Developing Countries’ share of global trade. Notwithstanding the importance of the provisions, the current Multi-lateral Trade System (MTS) contains multiple, ineffective, non-specific, non-binding and complex S&DT provisions, which do not serve the original purpose envisioned by the developmental objective for Developing Countries under the WTO. This objective is to ensure that Developing Countries secure a share in the growth in international trade commensurate with their financial and economic development needs.

The inconsistent, non-binding and ineffective S&DT rules has resulted in little use and ineffective application of a considerable number of preferential provisions, which has resulted in low trade-gains for Developing Countries. There is currently no codified legal Framework for S&DT for Developing Countries under the WTO rules. Specifically, there is no established universal or dedicated Agreement or binding set of rules that establish the scope, extent of rules, application and modalities.