To Be an Aggressive But Patient Learner -- Analysis of China's Participation in Defending Anti-Dumping Challenges within the WTO Framework
LU Yi, To Be an Aggressive but Patient Learner — Analysis of China’s Participation in Defending Anti-Dumping Challenges Within the WTO Framework, 1 Peking U. Transnat'l L. Rev. 374 (2013).
47 Pages Posted: 15 Oct 2013 Last revised: 23 Oct 2013
Date Written: October 14, 2013
The year of 2013 is the twelfth year of China’s membership to the World Trade Organization (WTO). In Chinese zodiac, a twelve-year period constitutes a cycle of life. During the past twelve years, China’s journey into international trade has proven arduous as it faced numerous trade remedy challenges. Standing at the switching point leading to a new cycle of life, China should look back while reconsidering its trade policy for the next cycle. What lessons has China drawn from previous experiences? What kind of strategy should China adopt in the future to defend its interest in the dynamic global trade? With these questions in mind, this note aims at reviewing China’s performance since its accession to WTO and offering advices on how to make full use of WTO legal rules to promote its legal and economic interests within the WTO framework in the future. Anti-dumping (AD) challenges, which give rise to frequent trade frictions to China, will be the starting point.
According to WTO reports, China has been the Top 1 victim of AD investigations/measures since 1995 and the total investigation/measure against China kept increasing annually from 1995 to 2012. In order to change this tough trading situation, it is necessary to look into determinative factors in AD proceedings under General Agreement on Tariffs and Trade 1994 (GATT 1994) and Agreement on Implementation of Article VI of the GATT 1994. These factors are dumping, injury and causation, together with official interpretations and precedential application of these factors. Based on these legal implications, Chinese companies could learn better how to apply these rules in specific cases to challenge inconsistency between the AD determination and WTO rules. On the other hand, they might always be able to find supportive legal arguments when studying similar cases in the past. Notably, China had two nice tries in the cases of EU-Fasteners and U.S.-Anti-dumping and Countervailing Duties. In these two cases, China consciously looked into detailed legal text, presented comprehensive supporting evidences and made powerful arguments. In the future, China should learn from these successful arguments and apply them in accordance with different situations.
Based on acknowledgement of China’s previous experiences, this paper will propose a new attitude in future AD proceedings. This paper tries to introduce a combination of Taoism, an ancient Chinese philosophy emphasizing patience and respect for natural progress, and “Aggressive Legalism,” which aims at active utilizing of WTO rules as both a shield and a sword. When facing future AD challenges, China should be a patient learner of WTO law package, and this process demands a lot of patience. By rigorously applying WTO legal rules, China can benefit from a more efficient learning process to build up its legal capacity and promote its economic interests. In the next 12-year cycle from 2013, it is promising for China to be a strong rule maker and a big beneficiary of WTO rules.
Keywords: WTO, Anti-dumping, Taoism, Aggressive Legalism
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