From GATT to Friedrich List: Reconciling WTO Non‑Discrimination with Green Industrial Policy in the U.S.–China EV Conflict

Abstract

This study examines whether recent US tariffs and subsidies on Chinese electric vehicles (EV) can be consistent with the WTO law and with a Listian idea of legitimate infant industry protection in the green transition. It recreates the relevant General Agreement on Tariffs and Trade 1994 ('GATT 1994'), Agreement on Subsidies and Countervailing Measures ('SCM Agreement'), Agreement on Trade-Related Investment Measures ('TRIMs Agreement') and Agreement on Technical Barriers to Trade ('TBT Agreement') disciplines, categorizes the new Section 301 (Trade Act of 1974, 19 USC § 2411) tariffs and EV-associated tax credits as either bound tariff obligations, most favoured nation and national treatment obligations, and places them in a WTO-consistent trade remedy framework. This is further analyzed using WTO jurisprudence on Article XX of the GATT 1994 — as elaborated in United States — Standards for Reformulated and Conventional Gasoline (WT/DS2/AB/R), United States — Import Prohibition of Certain Shrimp and Shrimp Products (WT/DS58/AB/R), and European Communities — Measures Affecting Asbestos and Asbestos-Containing Products (WT/DS135/AB/R) — and environment-related measures to evaluate the plausibility of using general exceptions to justify origin-specific EV measures; the difficulty with the chapeau lies in the fact that tariffs and subsidies are closely associated with Chinese origin.

Based on the theory of productive power by Friedrich List (The National System of Political Economy, Longman, 1841), the paper constructs a two-dimensional evaluative grid that integrates a black letter test of the law (GATT 1994/SCM Agreement compliance and Article XX justifiability) with a normative test of Listian legitimacy, which is orientated towards temporariness, developmental orientation, and ultimate inclusion in liberal trade. Using this twofold test on US EV-specific tariffs and subsidies, the paper posits that much of what is now in place is in a grey zone: it is hard to defend doctrinally within WTO provisions and, where formal adherence could be contrived, it would be run as rent-seeking protectionism, instead of disciplined green industrial policy. The results imply that WTO members aiming at advancing EV industries should focus on the usage of neutral origin, time-bound and capability-enhancing instruments and that WTO law will have to increasingly face multipurpose green industrial policies that obscure the distinction between environmental ambition and trade protection.