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Published online by Cambridge University Press: 11 August 2011
By the end of 2011, China will have been a member of the World Trade Organization (the WTO) for a decade. While China has undergone dramatic changes to implement commitments contained in its Protocol of Accession,1 debate continues as to whether China has adequately complied with its obligations under the WTO Agreements in both letter and spirit. Some of this debate remains in the political arena, where China is censured over such issues as currency controls and or equality of access for foreign firms like Google; however, it is in the legal arena, and specifically within the WTO's Dispute Settlement Body, that some of the most controversial issues are raised, both against and by China.
1 Accession of the People's Republic of China: Decision of 10 November 2001 of the Ministerial Conference (11 December 2001), World Trade Organization Document WT/L/432.
2 Bown, CP, ‘Participation in WTO Dispute Settlement: Complainants, Interested Parties and Free Riders’ (2005) 19 World Bank Economic Review 287CrossRefGoogle Scholar.
3 Following the convention set out by Simon Lester and Kara Leitner on <www.worldtradelaw.net>, the term ‘complaint’ is used here to refer to an individual complaint commenced as a request for consultations, which is then assigned its own DS number. In practice, multiple complaints will have common facts and legal issues, and will be consolidated into single proceeding which can be referred to as a ‘matter’.
4 See Ostry, ‘WTO Membership for China: To Be and Not to Be: Is that the Answer?’ in P Grady and A Sharpe (eds), The State of Economics in Canada: Festschrift in Honour of David Slater (Centre for the Study of Living Standards, 2001) 257, 263.
5 The official name of ‘European Communities’ was used in the WTO until 20 November 2009, after which time the official name became the ‘European Union’. Here, references to ‘Europe’ will use the official name used at the time of the particular complaint.
6 DS248, DS249, DS251, DS252, DS253, DS254, DS258, and DS259, United States—Definitive Safeguard Measures on Imports of Certain Steel Products. Note also that a Request for Consultations was issued on 1 November 2002 by Chinese Taipei, but did not proceed past this point as the larger joint case (in which Chinese Taipei was a third party) had already commenced.
7 Ji, W and Huang, C, ‘China's Experience in Dealing with WTO Dispute Settlement: A Chinese Perspective’ (2011) 45(1) Journal of World Trade 1, 4–5Google Scholar.
8 DS309, China—Value-Added Tax on Integrated Circuits (the ‘VAT Case’).
9 Joint Communication from China and the United States, WT/DS309/7, 16/07/2004.
10 Gao, H, ‘China's Participation in the WTO: A Lawyer's Perspective’ (2007) 11 Singapore Yearbook of International Law 41Google Scholar, 72.
11 DS339, DS340, and DS342, China—Measures Affecting Imports of Automobile Parts.
12 See, for example, the deliberations of the Appellate Body in United States – Tax Treatment for Foreign Sales Corporations, Recourse to Article 21.5 of the DSU by the European Communities, 14 January 2002, WT/DS108/AB/RW, 19.
13 L Jiang, ‘The WTO Dispute Settlement Mechanism and China's Participation’ in H Gao and D Lewis (eds), China's Participation in the WTO, (Cameron May, 2005) 303, 310–311.
14 DS362, China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights (the ‘IP Case’).
15 DS363, China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (the ‘Publications Case’).
16 DS358 and DS359, China—Certain Measures Granting Refunds, Reductions or Exemptions from Taxes and Other Payments, brought by the United States and Mexico respectively (the ‘Refunds Case’); and DS387, DS388 and DS390, China—Grants, Loans and Other Incentive, brought by the United States, Mexico and Guatemala (the ‘Grants Case’).
17 Office of the United States Trade Representative, ‘United States Wins End to China's “Famous Brand” Subsidies after Challenge at WTO; Agreement Levels Playing Field for American Workers in Every Manufacturing Sector’ (December 2009).
18 China has articulated its commitment to reforming the DSU for the benefit of developing country Members – see Communication from China, 13 March 2003, TN/DS/W/51/Rev. 1.
19 DS372, DS373 and DS378, China—Measures Affecting Financial Information Services and Foreign Financial Information Suppliers.
20 Communication from the European Communities – Transitional Review Mechanism Pursuant to Paragraph 18 of the Protocol of Accession of the People's Republic of China, 22 October 2007, S/FIN/W/59, 2–3.
21 Li, X, ‘The Agreement on Trade-Related Aspects of Intellectual Property Rights Flexibilities on Intellectual Property Enforcement: The World Trade Organization Panel Interpretation of China-Intellectual Property Enforcement of Criminal Measures and Its Implications’ (2010) 13 The Journal of World Intellectual Property 5CrossRefGoogle Scholar, 639.
22 See Broude, T, ‘It's Easily Done: The China-Intellectual Property Rights Enforcement Dispute and the Freedom of Expression’ (2010) 13 The Journal of World Intellectual Property 5CrossRefGoogle Scholar, 660.
23 Decision of the Standing Committee of the National People's Congress on Revision of the Copyright Law of the People's Republic of China, 26 February 2010.
24 See Executive Summary of the first written submission of China, China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights, Report of the Panel, 26 January 2009, WT/DS362/R, Annex B, 12.
25 See Gervais, D, ‘International Decision: China – Measures Affecting The Protection And Enforcement Of Intellectual Property Rights’ (2009) 103 American Journal of International Law 3Google Scholar, 549.
26 Just one of the many interesting details is the distinction between goods and services, and the consequences of that distinction. See Voon, T, ‘China and Cultural Products at the WTO’ (2010) 37 Legal Issues of Economic Integration 3Google Scholar, 253.
27 This is, of course, subject to the stipulations in the chapeau of Article XX.
28 China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products – Report of the Panel, 12 August 2009, WT/DS363/R, 272.
29 See generally, Peerenboom, R, ‘Assessing Human Rights in China: Why the Double Standard?’ (2005) 38 Cornell International Law Journal 71Google Scholar and Bhala, R, Enter the Dragon: An Essay on China's WTO Accession Saga' (2000) 15 American University International Law Review 6, 1469Google Scholar.
30 DS394, DS395 and DS398, China—Measures Related to the Exportation of Various Raw Materials, (the ‘Export Case’).
31 China – Measures Affecting Imports of Automobile Parts, Notification of an Appeal by the People's Republic of China under Article 16.4 and Article 17 of the Understanding on Rules and Procedures governing the Settlement of Disputes (DSU), and under Rule 20(1) of the Working Procedures for Appellate Review, 15 December 2008, WT/DS339/AB/R, WT/DS340/AB/R, WTDS342/AB/R.
32 United States Department of Commerce, Final Determination of Sales at Less Than Fair Value: Coated Free Sheet Paper from the People's Republic of China, 25 October, 2007, 72 FR 60632.
33 DS379, United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China (the ‘AD/CVD Case’).
34 Hsieh, PL, ‘China's Development of International Economic Law and WTO Legal Capacity Building’ (2010) 13 Journal of International Economic Law 4, 997, 1014–1015CrossRefGoogle Scholar.
35 DS392, United States—Certain Measures Affecting Imports of Poultry from China.
36 DS397, European Communities—Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China (the ‘Fasteners Case’) and DS405, European Union—Anti-Dumping Measures on Certain Footwear from China (the ‘Footwear Case’).
37 DS407, China—Provisional Anti-Dumping Duties on Certain Iron and Steel Fasteners from the European Union.
38 DS422, United States—Anti-Dumping Measures on Certain Frozen Warmwater Shrimp from China (the ‘Shrimp Case’).
39 DS414 China—Countervailing and Anti-Dumping Duties on Grain Oriented Flat-rolled Electrical Steel from the United States (the ‘GOES Case’).
40 ‘Crossing the river by feeling the stones’ (Mōzhe shítou guòhé) is a Chinese expression attributed to Dèng Xiǎopíng, and is frequently invoked in China's process of economic reform to suggest a measured process of learning by doing.
