China's First Ten Years in WTO Dispute Settlement

in The Journal of World Investment & Trade
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China's First Ten Years in WTO Dispute Settlement

in The Journal of World Investment & Trade

References

I Disputes bey- country/territory, available at http://www.wto.org/english/tratop_e/dispu_e/dispu_by_ coujitry_e.htiii, last visited on 6 December 2010. , Although it is still not ten years since China acceded to WTO, summary and evaluation to China's performance in Wto dispute settlement has been dealt with in many foreign and domestic fields. For example, United States-China Economic and Security Review Commission, Evaluating China's Role in the World Trade Organization Over the Past Decade, 9 June 2010, available at http://www.uscc.gov/hcarings/2010hearings/ hr1 U_06 09.php, last visited on 18 October 2010; WTO, Rule of Law, and China-Symposium on China's ten years after acceding to WTO, held by the Department of Treaty and Law, Ministry of Commerce of the People's Republic of China, and China Society of International Economic Law, Nanjing University, 14 October 2010.

3 China's Protocol of Accession, accompanying Working Party Report and Goods and Services Schedules are available at http://www.wto.org!english!thcwto_e!acc_e!completeacc_e.htm#list. last visited on 30 September 2010. 4 This sort of obligation is also called "legalized discrimination", sec Alan Wm. Wolff, China in the WTO, Testimony of Alan Wm. Wolff, Hearing on Evaluating China's Role in the World Trade Organization Over the Past Decade, Before the U.S.-China Economic and Security Review Commission, Washington, D.C., 9 June 2010, available at http://www.uscc.gov/hearings/201 Ohearings/writtcn_testimonies/10_06 09 wrf/10_06_09_ wolff statement.pdf, last visited on 6 December 2010. 5 It includes more than 20 existing multilateral W rc� agreements, covering all areas of trade such as agriculture, Sps measures, technical barriers to trade, trade-related investment measures, customs valuation, rules of origin, import licensing, antidumping, subsidies and countervailing measures, trade-related aspects of intellectual property rights and services. The core principles of the WTO are most-favoured-nation treatment, national treatment, transparency and the availability of independent review of administrative decisions. '' It should be noted that China is still not a signatory to the plurilateral Agreement on Government Procurement or the Agreement on Trade in Civil Aircraft to which China can select to accede.

At the beginning of any relationship, both parties go through the honeymoon stage. The honeymoon effect is something you want to last a long time, but soon it will disappear. Some scholar believes that the honeymoon between US and China ended with Dispute DS 362, see Donald P. Harris, The Honeymoons is Over: the CJ.S.-China WTO Intellectual Property Complaint, Fordham International Law Journal, vol. 32, 2008/2009, 1, 96-187. 8 Disputes by country/territory, available at http://www.wto.org/english/tratop_e/dispu_e/dispu_by_ country_e.htm, last visited on 6 December 2010.

9 On 29 November 2009, the WTO received a verbal note (WT/L/779) from the Council of the European Union and the Commission of the European Communities stating that, by virtue of the Treaty of Lisbon, as of 1 December 2009, the European Union replaces and succeeds the European Community. 10 Map of disputes between WTO Members, available at http://www.wto.org/cnglish/tratop e/dispye/ dispu_maps_e.htm?country_selected=CHN&sense=c, last visited on 6 December 2010. 11 According to an assessment of China and United States litigation against each other in the WTO from 2001 through 2010, one scholar pointed out that the active and aggressive nature of litigation between these two countries are proceeding. See Stuart Malawer, United States-Cldna WTO Litigation (2001-2010): Active Fr Agqres_cive Litigants, Social Science Research Network, Working Paper Series, 15 October 2010.

12 China-Provisional Anti-Dumping Duties on Certain Iron and Steel Fasteners from the European Union, available at littp://www.wto.org/english/tratop_e/dispu_e/cases-c/ds4O7-e.htiii, last visited on 30 September 2010. About the trade remedy measures taken by European Union, available at http://gpj.mofcom.gov.cn/ static/f/d/e/f.html/1, last visited on 5 October 2010. 14 This law is Section 727 of thc Omnibus Appropriations Act of 2009, included in the United States laws from March 2009. This Act is only effective for one year. At the time of Panel report publishing, Section 727 has expired.

15 Panel Report, United States-Certain Measures Affecting Imports of Poultry from China, WT/DS392/R, 29 September 2010. �6 The panel report was circulated on 3 December 2010, but still cannot be found from the WTO website, last visited on 3 December 2010.

Panel report, United States-Definitive Anti-dumping and Countervailing Duties on Certain Products from China, WT/DS379/R, 22 October 2010, pp. 279-282. 1" United States-Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, Notification of an Appeal by China, WT/DS379/6, 6 December 2010.

« W ro Director-General Pascal Larny warns of 1930s-style protectionism and says the threat of 1930s-style protectionism is looming, and international trade could suffer "tit-for-tat" measures and currency devaluations. See Larry Elliott, W ro Director-General Pascal Lamy wants of 1930s-style protectionism, available at http://www.guardian.co.uk/business/2010/oct/14/pascal-lamy-wto-1930s-protectionism, last visited on 1 December 2010. =° The Tenth THY of the U.S.-Responding Statement by Ambassador Michael Punke, 1 October 2010, available at http://geneva.usmission.gov/2010/10/01/responding-statcmcnt/, last visited on 2 October 2010.

21 China Commerce Ministry: US Bill on Currency Breaches WTO Rules, the Wall Street Journal, available at http: //online. wsj coiii/article/BT-CO-20100929-71 6870. htnil, last visited on 30 September 2010. zz FT.com-China hits back at US action on renminbi, available at http://www.onenewspage.co.uk/news/ Front+Page/20100930/15550545/China-hits-back-at-US-action-on-renminbi.htm, last visited on 1 October 2010. zj Matthew R. Leviton, Is It A Subsidy? An Evaluation of China's Currency Regime and Its Compliance with the Woo, UCLA Pacific Basin Law Journal, vol. 23, 2006, p. 243. 24 Scott Lincicome: House Passes Currency Legislation; Whoop-Dee-Freakin-Doo, available at http://lincicome.blogspot.com/2010/09/house-passes-currency-legislation-whoop.html, last visited on 30 September 2010. zs United States scholar says Chinese currency issue "90% political and 10% economic", English.news.cn, 2010-09-21, available at li ttp: //news. xiiihua ii et. com/english20l 0/itidepth/2010-09/21 /c_ 13523712. htill, last visited on 4 October 2010. 21 Senator (�rcgg Says China Currency Measure Is a 'Serious Mistake' - Business Week, Bloomberg, September 29, 2010, available at http://www.businessweek.com/news/2010-09-29/senator-gregg-says-china- currency-measurc-is-a-serious-mistake-.html, last visited on 30 September 2010. 27 Two Standford professors clarify the theoretical relationship between exchange rate policy and international trade and question whether trade measures can be an appropriate response to exchange rate policies. They are sceptical about many of the policy responses now under consideration in Washington both on economic and legal grounds. See Robert W. Staiger and Alan O. Sykes, Currency Manipulation and World Trade, World Trade Review, vol. 9, 2010 p. 583, Stanford Law and Economics Olin Working Paper, No. 363, August 2008.

28 Sevell Chan and Keith Bradsher, U.S. to Investigate China's Clean Energy Aid, available at http://www.tiytimes.coiii/2010/10/16/busiiiess/16wind.html?src=buslti, last visited on 16 October 2010. 2'' Bob Davis and Elizabeth Williamson, Balancing Act Tried with China, available at http://online.wsj.com/article/SB10001424052748704049904575554463131051340.html, last visited on 18 October 2010. 30 Related information can be available at http://www.gov.cn/jrzg/2010-10/18/content-1724521.htm, last visited on 18 November 2010. -11 Simon Hall, China Protests U.S. Green-Energy Probe, Asia News, November 17, 2010. '= Dispute DS412, Canada-Certain Measures Affecting the Renewable Energy Generation Sector, in consultation on 13 September 2010.

33 See United States-Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, Request for the Establishment of a Panel by China, WT/DS379/2, 12 December 2008, pp. 7-8. 34 See United States-Definitive Anti-Dumping and Countervailing Duties on Certain Products from China WT/DS379, First Written Submission of the United States, 27 May 2009, available at http://www.ustr.gov/ webfm_send/1028, last visited on 1 December 2010. ;5 This agency was cancelled in 2008.

■"' China appoints int'l trade representatives, 16 August 2010, available at http://english.pcopledaily.com.cn/ / 'i0001/90778/90861/7106304.html, last visited on 17 August 2010. 31 Wrc7, rule of law, and China, available at littp://,�&-ww.lawiiiiiovatioii.coiii/htii-�/.,�idt/3694.shtml, last visited on 18 November 2010. 31 Relevant information is available at htt;p://law.xmu.edu.cn/sheqn/intro.asp?tid�t203, last visited on 18 November 2010.

39 They are: Yuqing Zhang, Lingliang Zeng, Lanye Zhu (February 2004); Shizhong Dong and Yuejiao Zhang (November 2006); Zhongzhou Li, Liyu Han, Guohua Yang, Defeng E, Liping Zhang, Yongsha Li (February 2010). 11) These cases arc DS108, DS174, DS207, DS212, DS243, DS245, DS248, DS249, DS251, DS253, DS254, DS257, DS258, DS264, DS265, DS266, DS267, DS269, DS270, DS273, DS276, DS277, DS280, DS281, DS282, DS283, DS285, DS286, DS287, DS290, DS291, DS292, DS293, DS294, DS295, DS296, DS299, DS301, DS302, DS308, DS312, DS315, DS316, DS317, DS320, DS321, DS322, DS323, DS331, DS332, DS334, DS335, DS336, DS337, DS341, DS343, DS344, DS345, DS347, DS350, DS353, DS366, DS371, DS381, DS384, DS386, DS391, DS396, DS402, DS403, DS404, available at http://www.wto.org/cnglish/tratop e/dispu e/dispu by country c. htm, last visited on 30 September 2010. ar Bohua Gong, On Review and I'rnspect of China's Application mechanism, the Journal of Fujian Institute of Political Science & Law, issue 1, 2009, pp. 20-27.

^2 Panel report, WT/DS379/R, 22 October 2010, United States-Dcfinitive Anti-dumping and Countervailing Duties on Certain Products from China, pp. 279-282. 11 United States-Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, Notification of an Appeal by China, WT/DS379/6, 6 December 2010. ^^ Article 4 of Dsu. 45 Article 5 ofDsu. 41 Article 6-20 ofDsu. 47 Article 21.3(c), 22, 25 ofDsU.

.8 Marc L. Busch, Eric Rcinhardt, Gregory Shaffer, Does Legal Capacity Matter? A Survey o_f WHJ Member, World Trade Review, vol. 8(4), 2009, pp. 559-577. 11 Sometimes, a country does not intend to implement the ruling of WTO DSB. Take the US for example, in March 2007, the WTO DSB ruled that the US had failed to comply with the 2005 ruling against prohibitions on internet gambling, thus the Wn) granted Antigua and Barbuda US$21 million in annual trade sanctions against the US, as compensation for damages, and since then the two sides have been trying to negotiate a settlement that is acceptable to both parties. However, the settlement cannot be reached until now. See Antigua denies online gaming deal with US, available at http://www.caribbean360.com/business/48798.htrnl, last visited on 12 November 2010.

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