Hostname: page-component-78c5997874-m6dg7 Total loading time: 0 Render date: 2024-11-20T00:42:33.440Z Has data issue: false hasContentIssue false
  • English
  • Français

China, India, and the Law of the World Trade Organization

Published online by Cambridge University Press:  16 April 2015

Julia Ya Qin
Julia Ya Qin*
Affiliation:
Wayne State University
Get access Rights & Permissions [Opens in a new window]

Abstract

This article seeks to assess the respective contributions of China and India to the law of the World Trade Organization (WTO) and to gain from a comparative perspective a better understanding on the potential impact of China on the WTO system. It observes that, although China's share in world trade is more than four times as large as that of India, China has played a much less significant role than India in both WTO rulemaking and adjudicatory processes. To date the major impact of China on WTO law stems from the special terms of its accession, many of which depart from the basic norms and principles of the WTO. India, on the other hand, has been one of the most active contributors to the development of WTO law and jurisprudence. The author suggests that the divergence in WTO legal practices of the two countries is attributable to a number of factors and that the presence of these factors will continue to influence their behavior within the WTO system.

Keywords

ChinaIndiaWorld Trade OrganizationWTOinternational economic lawdispute settlementrule of law
Type
Research Article
Information
Asian Journal of Comparative Law , Volume 3 , 2008 , pp. 1 - 43
Copyright
Copyright © Faculty of Law, National University of Singapore 2008

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 China was one of the 23 original contracting parties to the GATT, but never participated in GATT activities after the communist revolution in 1949. In March 1950, the ex-Chinese government then located in Taiwan withdrew China from the GATT, but the withdrawal was never recognized by Beijing. In 1986, China requested resumption of its original contracting party status in the GATT. China changed its application to accession after the establishment of the WTO. For background and analysis of the legal issues involved, see Qin, Ya, “China and GATT - Accession Instead of Resumption”, 27(2) J. World Trade 77–98 (April 1993)Google Scholar.

2 See e.g., Richard Steinberg, “Institutional Implications of WTO Accession for China”, Institute on Global Conflict and Cooperation, Working Papers (February 1999) (predicting China's accession would cause “systems friction” in the WTO).

3 See Pearson, Margaret M., “China in Geneva: Lessons from the Earliest Years in WTO”, in Johnston, Alastair lain & Ross, Robert (eds.), New Directions in the Study of China's Foreign Policy, (Stanford, California: Stanford University Press, 2006), pp. 242-75Google Scholar (raising the question of whether China is a “system maintainer,” a “system reformer,” or a “revisionist power”).

4 See “WTO's Doha Round Talks Collapse, As G-6 ministerial ends in Acrimony”, BNA WTO Reporter, July 25, 2006.

5 See “U.S. Expects India to Play Greater Role in Coming Months to Help Revive WTO Talks”, BNA WTO Reporter, December 20, 2006; “Doha's Future in Doubt as G-4 Talks Collapse; U.S., EU Blame Brazil, India”, BNA WTO Reporter, June 22, 2007.

6 See “A New Approach to Handling China, Wall Street Journal”, December 3, 2005, at A2; “The Dragon's Docile Role in WTO”, Forbes, March 10, 2006; “Portman Presses China on Market Access, IPR; Urges China to Be Active in Doha Talks”, BNA WTO Reporter, November 15, 2005; “U.S. Again Calls on China to Play Greater Role in Restarting WTO Trade Talks”, BNA WTO Reporter, October 20, 2006.

7 In 2005, China's trade in goods and services totaled US$1579 billion, whereas India's was US$338 billion. Source: WTO International trade statistics 2006, available at <www.wto.org>

8 The terms of Vietnam's accession are set out in the “Report of the Working Party on the Accession of Viet Nam”, WT/ACC/VNM/48 (27 October 2006), available at <www.wto.org>. Vietnam's accession took effect on 11 January 2007.

9 “India-China Trade Relations: Not So Happy a Birthday”, Asia Source, 11 December 2003, <http://www.asiasource.org/trade/seventeen.cfm> (a website of the Asia Society) (last visited: July 28, 2007).

10 Interview with WTO Secretariat staff, Geneva, October 2003.

11 Source: “WTO Dispute Settlement - Disputes by country - China”, available at <www.wto.org> (last visited July 28, 2007).

12 Source: “WTO Dispute Settlement - Disputes by country - India”, available at <www.wto.org> (last visited July 28, 2007).

13 See “History of China's accession to the WTO”, in WTO News, Press/243 (17 September 2001), available at <www.wto.org>.

14 “The Protocol on the Accession of the People's Republic of China”, WT/L/432 (10 November 2001), available at <www.wto.org>.

15 All texts of the WTO agreements are available at <www.wto.org>.

16 China agreed to bind all tariffs at the low statutory rates, a commitment uncommon among WTO members; its market access commitments on services were more comprehensive than most WTO members. For a comparative perspective on the scope and depth of China's market access commitments, see Lardy, Nicholas R., Integrating China into the Global Economy, (Washington DC: Brookings Institution Press, 2002), pp. 79–80 Google Scholar.

17 Unlike other WTO protocols of accession, which typically include a standardized text setting out certain procedural matters and the goods and services schedules of the acceding member, the China Protocol consists of a main text of 17 sections of substantive provisions, nine annexes (including China's goods and services schedules), and 143 paragraphs of substantive provisions incorporated by reference from the “Report of the Working Party on the Accession of China”, WT/MIN(01)/3 (10 November 2001) (“WPR”). Most of the 143 paragraphs so incorporated contain rule obligations of China. See generally Qin, Julia Ya, “‘WTO-Plus’ Obligations and Their Implications for the WTO Legal System - An Appraisal of the China Accession Protocol”, 37(3) J. World Trade 483 (2003)Google Scholar.

18 The only other exception is Vietnam. Although Vietnam's accession protocol uses the standardized text, it incorporates by reference 70 paragraphs from the “Report of the Working Party on the Accession of Viet Nam” that contain special rule obligations of Vietnam. See supra note 8, para. 527.

19 For example, China undertakes to eliminate all export subsidies upon accession, thereby foregoing the right it may otherwise enjoy under Article 27.2(b) of the Agreement on Subsidies and Countervailing Measures (the SCM Agreement), which permits developing country Members to delay such elimination till January 1, 2003. See Protocol, section 10.3. Additionally, China has undertaken not to invoke Articles 27.8, 27.9 and 27.13 of the SCM Agreement, which grant certain special treatment to developing country Members. See WPR paras. 171-174, which were incorporated into the Protocol.

20 Protocol, section 1.2.

21 For example, Cuba, despite its non-market economy, is an original member of the WTO. In the prior accessions of transition economies (former centrally-planned-economies undergoing transformation to market economies), the acceding countries were typically required to confirm the status of their economic reforms, but none was obligated to undertake substantive obligations to practice a market economy. See Qin, supra note 17, at 504.

22 See Protocol, section 9.

23 See Protocol, section 5.1.

24 See WPR, para. 46, which was incorporated into the Protocol.

25 See Qin, supra note 17, at 491-99, for more detailed discussion.

26 Protocol, section 2(C)(2). Exceptions are given to laws and regulations involving national security or publication of which would impede law enforcement.

27 WPR, para. 334, which was incorporated into the Protocol.

28 See Agreement on Trade-Related Investment Measures (TRIMS); General Agreement on Trade in Services (GATS).

29 Protocol, section 7(3).

30 Protocol, section 3.

31 GATT, art. XI.

32 Protocol, section 11(3).

33 Protocol, Note to Annex 6.

34 Protocol, section 18.

35 The WTO conducted the first trade policy review of China in 2006. See “Trade Policy Review, Report by the Secretariat”, WT/TPR/S/161 Rev.1 (28 June 2006) (TPR Report), available at <www.wto.org>. As the third largest trading nation, China is now subject to a trade policy review every two years.

36 Protocol, section 15.

37 GATT art. VI:1.

38 GATT ad art. VI, note 2, para. 1.

39 See Patrick A. Messerlin, “China in the WTO: Antidumping and Safeguards”, (December 14, 2002), Table 7 (statistics based on examination of 141 U.S. antidumping cases (1995-1998) and 67 EC cases (1995-1997)), available at <www.siteresources.worldbank.org> Chad Bown & Rachel McCulloch, “U.S. Trade Policy Toward China: Discrimination and Its Implications” (June 2005), Table 2 (showing that in 23 multi-country antidumping investigations made in the United States in 1990-2003, the mean (median) antidumping duty facing China is 177.38% (118.41%) as opposed to the mean (median) duty of 36.41% (32.23%) facing all other investigated countries), available at SSRN: <http://ssrn.com/abstract=757124>

40 GATT ad art. VI, note 2, para. 1.

41 Ten transition economy countries acceded to the WTO before China: Mongolia, Bulgaria, Kyrgyz Republic, Latvia, Estonia, Georgia, Croatia, Albania, Lithuania, and Moldova. Information on the terms of their respective accessions is available at <www.wto.org>.

42 For example, the EU listed Mongolia, Kyrgyztan, Georgia, Albania and Moldova as nonmarket economies in Council Regulation (EC) No. 2238/2000 of 9 October 2000, amending Council Regulation (EC) No. 384/96 on protection against dumped imports from countries not members of the European Community.

43 Vietnam, which acceded to the WTO on January 11, 2007, has been made subject to similar special antidumping rules as China, except that the NME treatment period for Vietnam is 12 years rather than 15 years. See “Report of Working Party”, supra note 8, para. 255.

44 Protocol, section 15(a)(ii).

45 Protocol, section 15(d). If China can establish under the national law of a WTO member that it is a market economy (or that market conditions prevail in a particular industry or sector), the NME provision of the Protocol will no longer apply (or no longer apply to that industry or sector). Ibid.

46 For the period from 1995 through 2006, a total of 1941 antidumping measures were taken by WTO members, of which 375, or nearly 20%, were against Chinese products, followed by a distant second of 136 against South Korea. Source: WTO antidumping statistics, available at <www.wto.org>.

47 SCM Agreement, art. 14.

48 Protocol, section 15(b).

49 SCM Agreement, arts. 1.2 and 2.

50 Protocol, section 10.2.

51 For detailed discussion, see Qin, Julia Ya, “WTO Regulation of Subsidies to State-Owned Enterprises (SOEs): A Critical Appraisal of the China Accession Protocol”, 7(4) J. Int'l Econ. Law 863 (2004)CrossRefGoogle Scholar.

52 SCM Agreement, art. 27.13. The exception is subject to the conditions that the subsidy is notified to the WTO and is granted for a limited period, and that the SOE involved is eventually privatized.

53 WPR, para. 171, which was incorporated into the Protocol.

54 From 1995 through 2006, a total of six countervailing investigations were initiated against Chinese products, of which five were taken by Canada since 2004, and one by the U.S. in 2006. See WTO subsidy statistics, available at www.wto.org.

55 See Decisions of U.S. Department of Commerce in “Coated Free Sheet Paper from the People's Republic of China: Amended Preliminary Affirmative Countervailing Duty Determination”, 72 Fed. Reg. 17484 (April 9, 2007); “Notice of Initiation of Countervailing Duty Investigation: Circular Welded Carbon Quality Steel Pipe from the People's Republic of China”, 72 Fed. Reg. 36668 (July 5, 2007)Google Scholar; “Notice of Initiation of Countervailing Duty Investigation: Light-Walled Rectangular Pipe and Tube from the People's Republic of China”, 72 Fed. Reg. 40281 (July 24, 2007)Google Scholar; and “Laminated Woven Sacks from the People's Republic of China: Initiation of Countervailing Duty Investigation”, 72 Fed. Reg. 40839 (July 25, 2007)Google Scholar.

56 See infra note 113.

57 Protocol, section 16.

58 See GATT art. XIX; Agreement on Safeguards (the Safeguard Agreement), art. 2.

59 See Safeguard Agreement, arts. 2, 3, 4, 5, 7.

60 Ibid. art. 2.2

61 Ibid. art. 11.

62 Protocol, section 16.

63 Protocol, section 16.8.

64 According to notifications received by the WTO, the following members have initiated more than a dozen proceedings under Section 16 of the China Protocol: United States, Canada, India, Colombia, Peru, Ecuador, Turkey, and Chinese Taipei. See WTO G/SG/N/16/* documents, available at <www.wto.org>. In addition, EU and Poland were reported to have initiated investigations under Section 16 of the China Protocol. See “EU starts safeguard probe on China”, China Daily Online, July 21, 2003; “Poland Signals Plans to Impose Safeguard on Chinese Footwear Imports, Seeks Talks”, BNA WTO Reporter, January 29, 2004.

65 For instance, Brazil adopted administrative regulations in 2005 introducing special safeguard measures on Chinese products based on Section 16 of the Protocol. See Welber Barral and Carolina Munhos, “The Recent Brazilian Regulation on Safeguards Against Chinese Imports”, at <www.brazilinfocenter.org/pdfs/november2005.pdf> (last visited July 30, 2007).

66 The ATC established a transitional safeguard mechanism, which allowed an importing member to apply safeguard measures against a particular exporting member. The transitional safeguard mechanism expired at the end of the ten-year transitional period. See ATC, art. 6.

67 The textile safeguard is set out in WPR, para. 242, which was incorporated into the Protocol.

68 See “Post-Quota Textile Trade Starts to Take Shape”, Bridges Weekly Trade News Digest, 26 January 2005; “Chinese Textile Exports Surge; US, EU To Invoke Textile Safeguard?” Bridges Weekly Trade News Digest, 6 April 2005.

69 See EU-China Textile Agreement 10 June 2005, <http://ec.europa.eu/comm/external_relations/china/intro/memo05_201.htm>; Memorandum of Understanding Between the Governments of the United States of American and the People's Republic of China Concerning Trade in Textile and Apparel Products, November 8, 2005, available at <www.ustr.gov>.

70 WPR, para. 242(g).

71 Under GATT, each contracting party was obligated to apply Part II of the GATT Agreement only to the fullest extent not inconsistent with its domestic legislation existing at the time of its joining the GATT. A country acceding to GATT might be subject to special terms under its protocol of accession. More significantly, a number of side agreements negotiated under GATT applied only to the contracting parties that opted to abide by them.

72 The Plurilateral Agreements attached as Annex 4 of the WTO Agreement apply only to members that have separately accepted them. It should be noted that there have been proposals to revise the “single package” approach so as to allow a group of WTO members to negotiate and subscribe to more advanced rules in selected areas. It should be pointed out, however, that this “side agreement” approach is fundamentally different from country-specific rulemaking in that the rules of a side agreement are generally applicable to all members that accept the rules, whereas country-specific rulemaking targets a specific member only.

73 Supra note 8.

74 E.g., GATT art. Safeguard Agreement, art. 2.2.

75 The MFN clauses of the WTO agreements generally require a member to treat all other members equally with respect to the matters specified in the clauses. See e.g., GATT art. Since the WTO-plus obligations are that of China only, they do not give rise to the issue of how other members treat China under the MFN clauses.

76 China's textiles and clothing industry went through a major structural reform in the 1990's. As a result, many state-owned enterprises went bankrupt and the industry became more privatized than many other sectors. As of 2005, the industry was 87% owned by private capital and 13% owned by the State. See “MOFCOM: China's Textiles and Clothing Industry in the Era of Liberalization”, available at <http://eu2.mofcom.gov.cn/aarticle/chinanews/200509/20050900352110.html>.

77 For instance, Paragraph 17 of the Working Party Report notes that any commitment of China to provide nondiscriminatory treatment to Chinese enterprises and foreign enterprises and individuals “would not prejudice China's rights under the GATS.” The scope of GATS national treatment clauses is subject to various limitations.

78 See infra note 115.

79 The Dispute Settlement Understanding, art. 3.2, specifically mandates that the dispute settlement procedure may not add to or diminish the existing rights and obligations of WTO members.

80 See Qin, supra note 17.

81 WTO Agreement, art. XII.

82 See Agreement on Market Access Between the People's Republic of China and the United States of America, 15 November 1999. Source: Office of U.S. Trade Representative (on file with the author).

83 See Gertler, Jeffrey, “The Process of China's Accession to the World Trade Organization”, in Abbott, F. (ed.), China in the World Trading System: Defining the Principles of Engagement, (The Hague; Boston: Kluwer Law International, 1998) p. 65, at 71 Google Scholar.

84 The high-handed negotiating tactics deployed by the U.S. Trade Representative in the bilateral negotiation were widely reported. See e.g., “To Brink and Back: In Historic Pact, U.S. Opens Way for China to Finally Join WTO”, Wall Street Journal, 16 November 1999, at A1; “‘Roller-Coaster Ride’ to an Off-Again, On-Again Trade Pact”, The Washington Post, 16 November 1999, at A26; “The Fist Lady of Trade: Woman in the News Charlene Barshefsky: The US trade representative was praised after China's accession to the WTO”, Financial Times (London), 27 November 1999, p. 11 Google Scholar.

85 For a comprehensive review by the WTO of China's trade law and practice in the postaccession era up to 2006, see TPR Report, supra note 35.

86 In accordance with the Protocol requirement that China fully liberalize trading rights within three years after accession, China amended its Foreign Trade Law to implement this obligation, effective July 1, 2004.

87 As late as March 2006, the State Council was still instructing its ministries and local governments to notify their trade-related regulations to the Ministry of Commerce so as to enable their timely publication in the designated official journal. See State Council Notice Concerning Further Implementation of the Transparency Provisions of the WTO Protocol on China's Accession (30 March 2006), Guobanfa 2006 No. 23 (in Chinese), <http://www.law-lib.com/law/law_view.asp?id=154087> (last visited August 2, 2007).

88 Given the large number of laws, regulations and measures pertaining to trade issued by the Chinese central and local governments each year, it may take months for the central government to collect all relevant rules, let alone to translate them into foreign languages within 90 days. Extraordinary WTO-plus obligations such as this had little chance of being fulfilled.

89 China did not make a full notification on subsidies as required by the Protocol until April 13, 2006. See G/SCM/N/123/CHN (13 April 2006), available at <www.wto.org>.

90 See e.g., “WTO: China's Refusal to Answer Quad Queries Shuts Down Compliance Review Session”, BNA International Trade Reporter, September 26, 2002.

91 See Pearson, supra note 3, at 250-51.

92 Not all these countries have antidumping laws or actively use antidumping measures.

93 See e.g., “As China's Trade Clout Grows, So Do Price-Fixing Accusations”, Wall Street Journal, February 10, 2006; Kennedy, Scott, “The Price of Competition: Pricing Policies and the Struggle to Define China's Economic System”, 49 The China Journal 1 (January 2003)CrossRefGoogle Scholar.

94 In the period of 2002-2006, China initiated 133 antidumping investigations, after India (205) and the US (117), and ahead of EU (116). Source: “WTO Antidumping statistics”, available at <www.wto.org. China's investigations targeted firms from United States, EU, Japan, South Korea, India, Russia, Taiwan and a number of other countries. For a list of China's antidumping cases as of March 1, 2005, see Kennedy, Scott, “China's Porous Protectionism: The Changing Political Economy of Trade Policy”, 120 Political Science Quarterly 407, 430 (Appendix) (2005)CrossRefGoogle Scholar.

95 See “WTO Trade Policy Review, Report by the People's Republic of China”, WT/TPR/G/161 (17 March 2006), para. 67 (indicating China had submitted more than 30 proposals and position papers in the Doha negotiations).

96 “China Balked at Joint Statement of Support for WTO Talks, US Official Says”, BNA WTO Reporter, April 19, 2006.

97 See “China, Other New WTO Members Seek Special Terms on Farm Tariff, Subsidy Cuts”, BNA WTO Reporter, March 14, 2007.

98 See "Proposal of the People's Republic of China on the Negotiation on Anti-Dumping,” TN/RL/W66, March 6, 2003, available at <www.wto.org>. The four-page proposal covered twenty topics. Except for the proposed repeal of the provision permitting special rules on nonmarket economy, all other proposals are limited to a general position expressed in a few sentences.

99 “China Urges Ban on Zeroing in Dumping Investigations as Part of WTO Rules Talks”, BNA WTO Reporter, May 4, 2006.

100 They include agreements concluded with the ASEAN countries, Hong Kong and Macao, Pakistan and Chile, and ongoing negotiations with the Gulf countries, New Zealand and Australia. See "Report by the People's Republic of China”, supra note 95, paras. 77-82.

101 Ibid.

102 Source: “WTO dispute cases involving China”, available at <www.wto.org>.

103 “Appellate Body Report, United States - Definitive Safeguard Measures on Imports of Certain Steel Products”, WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003. Aside from China, the other seven complainants were the EC, Japan, Brazil, Korea, New Zealand, Norway and Switzerland.

104 See Jiang, Liyong, “The WTO Dispute Settlement Mechanism and China's Participation”, in Gao, Henry & Lewis, Donald (eds.), China's Participation in the WTO, (London: Cameron May 2005) p. 303, at 306 Google Scholar.

105 “United States – Preliminary Anti-Dumping and Countervailing Duty Determinations on Coated Free Sheet Paper from China, Request for Consultations by China”, WT/DS368/1 (18 September 2007).

106 See supra note 55 and accompanying text.

107 “China Hits Back at New U.S. CVD Duties on Coated Paper Products”, BNA WTO Reporter, April 3, 2007 (citing a statement of Wang Xinpei, spokesman for the Chinese Ministry of Commerce, published on the agency's website March 31, 2007).

108 See Government of the People's Republic of China v. United States, U.S. Ct. Int'l Trade, Slip Op. 2007-50, March 29, 2007 (dismissing China's claim for lack of jurisdiction before authorities issue the final determination).

109 See supra note 105.

110 “China - Value-Added Tax on Integrated Circuits, Request for Consultations by the United States”, WT/DS/309/1 (23 March 2004).

111 “China - Value-Added Tax on Integrated Circuits, Notification of Mutually Agreed Solution”, WT/DS309/8 (6 October 2005).

112 “China-Measures Affecting Imports of Automobile Parts”, WT/DS339/1 (3 April 2006), “Request for Consultations by the European Communities”, WT/DS340/1 (3 April 2006) “Request for Consultations by the United States”, WT/DS342/1 (13 April 2006) (Request for Consultations by Canada).

113 “China - Certain Measures Granting Refunds, Reductions or Exemptions from Taxes and Other Payments”, WT/DS358/1 (7 February 2007) (Request for Consultations by the United States); WT/DS359/1 (28 February 2007) (Request for Consultations by Mexico).

114 “China - Measures Affecting the Protection and Enforcement of Intellectual Property Rights”, WT/DS362/1 (16 April 2007) (Request for Consultations by the United States).

115 “China - Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products”, WT/DS363/1 (16 April 2007) (Request for Consultations by the United States); WT/DS363/1/Add.1 (16 July 2007) (Addendum).

116 For views on the background and merits of the case, see Jiang, supra note 104, at 307-310; Henry Gao, “Aggressive Legalism: The East Asian Experience and Lessons for China”, in China's Participation in the WTO, supra note 104, 315, 329-334.

117 “EC Threatens WTO Suit Against China Unless It Lifts Coking-Coal Restrictions”, BNA WTO Reporter, May 25, 2004; “EC, China Reach agreement on Continued Chinese Shipments of Coking Coal to Europe”, BNA WTO Reporter, June 2, 2004. China's decision to compromise was made at the time when it was expecting a EU decision on China's market economy status. For background and analysis of this case, see Gao, supra note 116, at 334-348.

118 “China Lifts Dumping Duties on Linerboard in Face of US' Threat of WTO Proceedings”, BNA WTO Reporter, January 11, 2006. MOFCOM announced the withdrawal of its antidumping determination without explanation. See MOFCOM Announcement [2006] No. 8, “Terminating Antidumping Measures on Unbleached Kraft Liner/Linerboard”, 13 February 2006, available at <www.mofcom.gov.cn>.

119 See supra note 69 and accompanying text. See also Dongli, Huang, WTO Guize Yunyong Zhong De Fazhi - Zhongguo Fanzhipin Tebie Baozhang Cuoshi Yanjiu [Rule of Law in the Application of WTO Rules - A Study on the Special Safeguard for Chinese Textile Products], (Beijing: People's Press 2006), at 12–15 Google Scholar (urging China to pursue WTO litigation to clarify its rights under the textile safeguard provisions rather than relying on political solutions to its alleged abuse by the US of the textile safeguard).

120 “China Blocks U.S., EU, Canadian Requests for WTO Panel Review of Auto Parts Tariffs”, BNA WTO Reporter, September 29, 2006.

121 “China Blocks U.S., Mexican Request for WTO Panel on Tax Break Subsidies”, BNA WTO Reporter, July 25, 2007.

122 “U.S. Decision to File IPR Complaints Will Harm Relations, Chinese Official Says”, BNA WTO Reporter, April 26, 2007.

123 Das, Bhagirath Lal, “India's Trade Negotiations: Past Experience and Future Challenges”, 35 Int'l Studies 397, 398 (1998)Google Scholar.

124 GSP was negotiated and finalized in the second conference of UNCTAD held in New Delhi in 1968 under the chairmanship of India. Das, ibid.

125 GATT: Decision on Differential and More Favorable Treatment, Reciprocity and Fuller Participation of Developing Countries, GATT Doc. L/4903 (28 November 1979), Basic Instrument and Selected Documents (BISD), 26th Supp. 203.

126 Supra note 28.

127 The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

128 See Das, supra note 123, at 399.

129 See Ostry, Sylvia, “The Uruguay Round North-South Grand Bargain: Implications for Future Negotiations”, in Kennedy, Daniel M. and Southwick, James D. (eds.), The Political Economy of International Trade Law: Essays in Honour of Robert E. Hudec, (Cambridge: Cambridge University Press, 2002), p. 285 CrossRefGoogle Scholar.

130 WT/MIN(01)/DEC/2 (20 December 2001).

131 WT/L/641 (8 December 2005). The amendment will take effect upon ratification by two thirds of WTO members. See Pascal Lamy, “The WTO and the Doha Round: The Way Forward”, Speech of WTO Director-General, New Delhi, 6 April 2006, available at <www.wto.org.>

132 See supra note 4.

133 “WTO Trade Policy Review: India, Report by the Secretariat”, WT/TPR/S/182 (18 April 2007) ("India Trade Policy Review”), at 23.

134 See Mattoo, Aaditya & Subramanian, Arvind, “India and the Multilateral Trading System Post-Doha: Defensive or Proactive?” in Mattoo, Aaditya & Stern, Robert M. (eds.), India and the WTO, (Oxford: Oxford University Press, 2003), p. 327, at 333 Google Scholar.

135 For a list of India's regional trade arrangements, see “India Trade Policy Review”, supra note 133, at 23-28.

136 For a detailed analysis of India's participation in the WTO dispute settlement system, see Pratap, Ravindra, India at the WTO Dispute Settlement System, (New Delhi: Manak Publications, 2004)Google Scholar.

137 “India - Tax Rebates on Exports”, GATT/CP.2/SR. 11, BISD II/12 (24 August 1948). See Hudec, Robert E., Enforcing International Trade Law: The Evolution of the Modern GATT Legal System (Salem: Butterworth Legal Publishers, 1993), 417–418 Google Scholar, for a synopsis of the case.

138 “Pakistan - Export fees on Jute”, GATT/L/41, Hudec, ibid., at 428-429.

139 “United States - Imposition of Countervailing Duties without Injury Criterion”, GATT/L/5028 (Sept. 29, 1980); “Japan - Measures on Imports of Leather” (initiated April 11, 1980, no GATT documents generated, see L/5623, BISD 31st Supp. 94, 108 (1985)); “EC - Sugar Regime”, GATT/L/5309 (April 8, 1982); “United States - Countervailing Duty Procedures”, GATT/SCM/20 (April 22, 1982). See Hudec, supra note 137, at 486-487; 485; 500-501.

140 “India - Import Restrictions on Almonds”, GATT/C/M/211 (June 17, 1987); “India - Import Licenses on Almonds”, GATT/C/M/211 (June 17, 1987). See Hudec, supra note 137, at 548-549.

141 The number of cases in which the top four litigants serve as complainant and respondent respectively: U.S. (88, 98), EC (76, 58), Canada (28, 15), Brazil (23, 14). Source: WTO Dispute Settlement, Disputes by country, available at www.wto.org.

142 Source: WTO Dispute Settlement, Disputes by country, available at www.wto.org.

143 “EC - Antidumping Investigations Regarding Unbleached Cotton Fabrics from India”, WT/DS140/1 (3 August 1998) (EC - Cotton Fabrics); “EC - Antidumping Duties on Imports of Cotton-Type Bed Linen from India”, WT/DS141/1 (3 August 1998); “South Africa -Antidumping Duties on Certain Pharmaceutical Products from India”, WT/DS168/1 (1 April 1999) (South Africa - Pharmaceuticals); “United States - Antidumping and Countervailing Measures on Steel Plate from India”, WT/DS206/1 (4 October 2000); “United States - Continued Dumping and Subsidy Offset Act of 2000”, WT/DS217/1 (21 December 2000); “Brazil - Antidumping Duties on Jute Bags from India”, WT/DS229/1 (9 April 2001); “EC -Antidumping Duties on Certain Flat Rolled Iron or Non-Alloy Steel Products from India”, WT/DS313/1 (5 July 2004) (EC - Iron and Steel); and “United States - Customs Bond Directive for Merchandise Subject to Antidumping/Countervailing Duties”, WT/DS345/1 (12 June 2006) (US- Customs Bond).

144 “United States - Measures Affecting Imports of Women's and Girls' Wool Coats”, WT/DS32/1 (14 March 1996) (US - Wool Coats); “United States - Measures Affecting Imports of Woven Wool Shirts and Blouses from India”, WT/DS33/1 (13 March 1996).

145 “Poland - Import Regime for Automobiles”, WT/DS19/1 (28 September 1995) (Poland -Automobiles); “Turkey - Restrictions on Imports of Textile and Clothing Products”, WT/DS34/1 (21 March 1996).

146 “EC - Conditions for the Granting of Tariff Preferences to Developing Countries”, WT/DS246/1 (3 March 2002).

147 “United States - Rules of Origin for Textiles and Apparel Products”, WT/DS243/1 (11 January 2002).

148 “United States - Import Prohibition of Certain Shrimp and Shrimp Products”, WT/DS58/1 (8 October 1996); “EC - Restrictions on Certain Import Duties on Rice”, WT/DS134/1 (27 May 1998) (EC - Rice); “Argentina - Measures Affecting the Import of Pharmaceutical Products”, WT/DS233/1 (25 May 2001) (Argentina - Pharmaceuticals).

149 India lost in two cases: see “Panel Report, United States - Rules of Origin for Textiles and Apparel Products”, WT/DS243/R, adopted 21 July 2003 (U.S. - Rules of Origin); and “Panel Report, United States - Antidumping and Countervailing Measures on Steel Plate from India”, WT/DS206/R, adopted 29 July 2002 (US - Steel Plate).

150 “Poland - Import Regime for Automobiles”, WT/DS19/2 (11 September 1996); “EC - Iron and Steel”, WT/DS131/2 (27 October 2004).

151 “US - Wool Coats”, see WTO Dispute Settlement, Dispute DS32, at <www.wto.org>.

152 The six cases were initiated by the United States (DS90), Australia (DS91), Canada (DS92), New Zealand (DS93, Switzerland (DS94, and the EC (DS96). Except for the case initiated by the US, all of the other five cases were settled in 1998. The case initiated by the US resulted in an Appellate Body decision. See Appellate Body Report, “India - Quantitative Restrictions on Imports of Agricultural Textile and Industrial Products”, WT/DS90/AB/R, adopted 22 September 1999 (India - Quantitative Restrictions).

153 “Appellate Body Report, India - Patent Protection for Pharmaceutical and Agricultural Chemical Products (by US)”, WT/DS50/AB/R, adopted 16 January 1998; “Panel Report, India - Patent Protection for Pharmaceutical and Agricultural Chemical Products (by EC)”, WT/DS79/R, adopted 22 September 1998.

154 “Appellate Body Report, India-Measures Affecting the Automotive Sector (by US and EC)”, WT/DS146/AB/R, WT/DS175/AB/R, adopted April 5, 2002.

155 “India - Antidumping Measures on Imports of Certain Products from the European Communities”, WT/DS304/1 (8 December 2003); “India -Antidumping Measures on Batteries from Bangladesh”, WT/DS306/1 (28 January 2004); “India - Antidumping Measures on Imports of Certain Products from the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu”, WT/DS318/1 (28 October 2004). None of these disputes proceeded to a panel, nor has any settlement reported. See WTO Dispute Settlement, Dispute DS304, DS306, DS 318, at <www.wto.org.

156 “India - Measures Affecting Export of Certain Commodities (by EC)”, WT/DS120/1 (11 March 1998); “India - Import Restrictions (by EC)”, WT/DS149/1 (28 October 1998); “India -Measures Affecting Customs Duties (by EC)”, WT/DS150/1 (31 October 1998); and “India -Import Restrictions Maintained under the Export and Import Policy 2002-2007 (by EC)”, WT/DS279/1 (23 December 2002); “India - Measures Affecting the Importation and Sale of Wines and Spirits from the EC”, WT/DS352/1 (20 November 2006); “India - Additional and Extra-Additional Duties on Imports from the United States”, WT/DS360/1 (6 March 2007). None but the last two of these cases proceeded to the establishment of a panel, nor has any settlement reported. See WTO Dispute Settlement, Dispute DS120, DS149, DS150, DS279, at <www.wto.org.

157 “Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products”, WT/DS58/AB/R, adopted 6 November 1998.

158 See Jackson, John H., Sovereignty, the WTO, and the Changing Fundamentals of International Law, (Cambridge: Cambridge University Press, 2006), p. 188 CrossRefGoogle Scholar.

159 For comments on this case, see Appleton, Arthur, “Shrimp/Turtle: Untangling the Nets”, 2(3) J. Int'l Econ. L. 477 (1999)CrossRefGoogle Scholar; Charnovitz, Steve, “The Turtle-Shrimp Decision”, 19 NY L. Sch. J. In't & Comp. L. 1 (1999)Google Scholar; Neuling, Bruce, “The Shrimp-Turtle Case: Implications for Article XX of GATT and the Trade and Environment Debate”, 22 Loy. L. A. Int'l & Comp. L. Rev. 1 (1999)Google Scholar.

160 “Appellate Body Report, European Communities - Conditions for the Granting of Tariff Preferences to Developing Countries”, WT/DS246/AB/R, adopted 20 April 2004 (EC-Preferences).

161 On the implications of this case for GSP programs, see Howse, Robert, “India's WTO Challenge to Drug Enforcement Conditions in the European Community Generalized System of Preferences: A Little Known Case with Major Repercussions for ‘Political” Conditionality in US Trade Policy”, 4(2) Chi. J. Int'l L. (2003) 385 Google Scholar; Howse, Robert, et al, “Internet Roundtable: The Appellate Body's GSP Decision”, 3(2) World Trade Review 239 (2004)Google Scholar; Gerhart, Peter M. & Kella, Archana Seema, “Power and Preferences: Developing Countries and the Role of the WTO Appellate Body”, 30 N.C.J. Int'l L. & Com. Reg. 515 (Spring 2005)Google Scholar; and Grossman, Gene M. & Sykes, Alan O., “A Preference for Development: the Law and Economics of GSP”, 4(1) World Trade Rev. 41 (2005)CrossRefGoogle Scholar.

162 “Appellate Body Report, United States - Measures Affecting Imports of Woven Wool Shirts and Blouses from India”, WT/DS33/AB/R, adopted 23 May 1997 (US - Shirts and Blouses).

163 See supra note 66.

164 See “US - Shirts and Blouses”, supra note 162, at 13-15.

165 Ibid. at 16.

166 Ibid.

167 “US - Rules of Origin”, supra note 149.

168 “India - Quantitative Restrictions”, supra note 152.

169 See ibid. paras. 80, 98.

170 For a critique of the AB's opinion in this case, see Roessler, Frieder, “The Institutional Balance Between the Judicial and Political Organs of the WTO”, in Bronckers, M. & Quick, R. (eds.), New Direction in International Economic Law, (The Hague: Kluwer Law International 2000), p. 325 Google Scholar. See also Cass, Deborah Z., The Constitutionalization of the World Trade Organization: Legacy, Democracy, and Community in the International Trading System, (Oxford: Oxford University Press, 2005), pp. 109–10CrossRefGoogle Scholar.

171 Supra note 157.

172 Supra note 160.

173 Supra note 149.

174 “Appellate Body Report, Turkey - Restrictions on Imports of Textile and Clothing Products”, WT/DS34/AB/R, adopted 19 November 1999.

175 Supra note 145.

176 Supra note 148.

177 Supra note 148.

178 Supra note 143.

179 Supra note 143.

180 Supra note 143.

181 Supra note 143.

182 Supra note 162.

183 Supra note 144.

184 See generally Qin, Julia Ya, “Defining Nondiscrimination under the Law of the World Trade Organization”, 23(2) Boston University Int'l Law J. 216 (Fall 2005), Pt. IVAGoogle Scholar.

185 See “EC - Preferences”, supra note 160, at paras. 163, 180-189.

186 See Qin, supra note 184, Pt. IV.D.

187 See “EC - Antidumping Duties on Certain Flat Rolled Iron or Non-Alloy Steel Products from India”, WT/DS/313/2 (27 October 2004).

188 The increasing complexity of WTO institutions has become a real barrier to the participation of many developing countries in the system. See Ostry, Sylvia, “Trade, Development, and the Doha Development Agenda”, pp. 6–7, presented at the University of Birmingham, 11-12 November 2005, <http://www.utoronto.ca/cis/ostry/>>Google Scholar. See also Weiler, J.H.H., “The Rule of Lawyers and the Ethos of Diplomatic Reflections on the Internal and External Legitimacy of WTO Dispute Settlement”, 35 J. World Trade 191 (2001)Google Scholar (suggesting that a consequence of the “juridification” of the WTO is the rule of lawyers in the trade system).

189 See Pearson, supra note 3, at 245 (indicating the small professional staff of the Indian delegation in Geneva is regarded as highly qualified). See also Das, supra note 123, at 402 (indicating the biggest strength of India in international trade negotiations has been its consistent adherence to certain basic objectives and its intellectual capability).

190 I thank one of the anonymous reviewers for making this point.

191 For example, the provision on the special “trade diversion” safeguard does not even contain a definition of the concept. Instead, a loosely phrased explanation of the term is set out in a non-binding paragraph of the Working Party Report. See WPR, para. 247. For examples showing problems caused by the lack of clarity and consistency in the WTO-plus provisions, see Qin, supra note 17, at 516.

192 See Pearson, supra note 3, at 245 (indicating the Chinese delegation to the WTO lacked ability to maneuver within the WTO and was overwhelmed). Although China has financial resources to hire legal expertise from developed countries, foreign counsel cannot be the solution to its full participation in WTO rulemaking and dispute settlement.

193 Das, supra note 123, at 400.

194 Pearson, supra note 3, at 254 (indicating that China has been relatively aloof from all coalitions within the WTO, and when it has joined coalitions, it does not play an active role, but rather uses its membership for image benefits).

195 China has strongly opposed the proposals of Turkey and certain other developing countries for new sector arrangements for textiles, accusing Turkey of trying to make China a “scapegoat” of the sector's problem. See “China Slams Turkey Proposal for WTO Work Program on Textiles”, BNA WTO Reporter, July 18, 2005.

196 See e.g., Rhys Jenkins & Enrique Dussel Peters, “The Impact of China on Latin America and the Caribbean (April 2006),” at <www.ids.ac.uk/ids/global/AsianDriverpdfs/DFIDAgendaPaperIII.pdf> (last visited August 5, 2007) (suggesting that China's attraction as a top destination for foreign investment has caused a decline in foreign investment to Latin American countries). But see Barry Eichengreen & Hui Tong, “Is China's FDI Coming at the Expense of Other Countries?”, NBER Working Paper 11335, available at <www.nber.org> (suggesting FDI in China also encourages FDI flows to other Asian countries).

197 See “WTO Case Study: Decision-Making Process in India: The Case of the Agriculture Negotiations”, available at <www.wto.org>.

198 According to Chimni, for example, there are six distinct perspectives on a just world order reflected in recent academic and political discourse in India, and these different perspectives are germane to understanding the response of the Indian state and people to issues relating to globalization, international law, and international institutions such as the WTO. See Chimni, B.S., “Alternative Visions of Just World Order: Six Tales from India”, 46 Harv. Int'l L. J. 389 (Summer 2005)Google Scholar. See also Das, supra note 123, at 403-404, for a candid assessment and critique of the weakness and problems in India's handling of the Uruguay Round negotiations.

199 For a case study on the organizational framework that governed decision-making on China's GATT/WTO negotiations, see Margaret Pearson, M., “The Case of China's Accession to GATT/WTO”, in Lampton, David M. (ed.), Making of Chinese Foreign and Security Policy in the Era of Reform, 1978–2000, (Stanford: Stanford University Press, 2001) p. 337, at 346–352 Google Scholar (describing the Chinese model as that of “fragmented authoritarianism”).

200 See Pearson, ibid. at 351-352; Kennedy, supra note 94.

201 See Pearson, supra note 199.

202 The Chinese-language version of the Protocol was not released to the public until late January of 2002, more than a month after the Protocol took effect.

203 See Pearson, supra note 3, at 246 (indicating that there was a domestic political backlash to WTO accession and Chinese leaders had to respond to the idea that China had been “sold out” by the stringent concessions to which its negotiators agreed).

204 Deng's advice was described as a strategy of tao guang yang hui, which is an ancient Chinese saying, literally meaning “hide brightness and nourish obscurity.” See Pillsbury, Michael, China Debates the Future Security Environment, Prologue (Washington DC: National Defense University Press, 2000)CrossRefGoogle Scholar. Deng's strategic advice was reported and discussed widely in the Chinese press. More recent articles include: Yang Chengxu, “‘Tao Guang Yang Hui, You Suo Zuo Wei’, Deng Xiaoping's Thought on Foreign Relations”, Aug. 9, 2004, available at <www.xinhuanet.com>; Yusheng, Wang Shan, “Rethinking China's Strategy of ‘Tao Guang Yang Hui’”, Globe, 8 July 2004, <http://www.cas.cn/html/Dir/2004/07/08/4141.htm>Google Scholar.

205 Premier Wen Jiabao was quoted for stating in 2004 that the strategy of tao guang yang hui should guide China's foreign policy for at least another 100 years. See Wu Jianmin: ‘Discarding ‘Tao Guang Yang Hui’ would lead China to catastrophe”, Sept. 20, 2005, available at <www.people.com.cn>.

206 China's behavior in the WTO is also largely consistent with its behavior in the United Nations and other international organizations, where it has been regarded as a system-maintainer rather than a system-reformer. See Kim, Samuel, “China and the United Nations”, in Economy, Elizabeth & Oksenberg, Michel (eds.), China Joins the World: Progress and Prospects, (New York: Council on Foreign Relations Press, 1999)Google Scholar [hereinafter “China Joins the World”], 42-89. For China's participation in multilateral international economic organizations, see Pearson, Margaret M., “China's Integration into the International Trade and Investment Regime”, in China Joins the World, 161–205 Google Scholar; Lardy, Nicholas R., “China and the International Financial System”, in China Joins the World, 206–230 Google Scholar. See also Pearson, Margaret M., “China's Track Record in the Global Economy”, The China Business Review (January-February 2000) 48 Google Scholar. Although in recent years there have been calls for China to be more assertive on the world stage, the current leadership has not departed from the general foreign policy set by Deng. In fact, amid the growing concerns about China's rise, the leadership is emphasizing more than ever on China's commitment to “peaceful development” and to “win-win” cooperation between China and the rest of the world.

207 See supra text at notes 120-122.

208 A telling example of the low level of legal consciousness in the government is the ratification of China's accession to the WTO. Instead of having the legislature ratify the accession after the signing of the accession protocol as required by the PRC Constitution, the government announced that the legislature had ratified the accession more than a year in advance of the signing of the Protocol. See Bing, Ling, “WTO Accession Procedure May Be Unconstitutional”, Ming Pao Daily, 19 November 2001 (in Chinese)Google Scholar.