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Published online by Cambridge University Press: 01 March 2021
Since its accession to the World Trade Organization (WTO), China's exports have been growing exponentially. In 2009, China became the world's top goods exporter. Four years later, China unseated the United States as the top trading nation in the world. In contrast to the burgeoning Chinese economy, the United States and Europe have been suffering from economic decline since the global financial crisis in 2008. China regards its rise as a long overdue restoration of its rightful position, as it has been the largest economy in the world for most of its history, except the brief aberration over the past 150 years. The Western powers, however, view China's rapid development with suspicion, as they attribute China's success mostly to its state-led development model, with state-owned enterprises, massive subsidies, and heavy government intervention playing a major role.
This panel was convened at 10:15 a.m., Thursday, June 25, 2020, by its moderator Gabrielle Z. Marceau of the World Trade Organization, who introduced the panelists: Stephen de Boer, Ambassador of Canada to the WTO; Henry Gao of Singapore Management University; and Jennifer Hillman of the Council on Foreign Relations.
This research/project is supported by the National Research Foundation, Singapore under its Emerging Areas Research Projects (EARP) Funding Initiative. Any opinions, findings and conclusions, or recommendations expressed in this material are those of the author and do not reflect the views of National Research Foundation, Singapore.
1 State Council, Guowuyuan Guanyu Yinfa <Zhonguo Zhizao 2025> de Tongzhi [State Council Notice on Issuing <Made in China 2025>], Guofa [2015] #28 (May 8, 2015), at http://www.gov.cn/zhengce/content/2015-05/19/content_9784.htm.
2 China - Certain Measures on the Transfer of Technology - Request for Consultations by the European Union, WT/DS549/1, G/L/1244, IP/D/39 (June 6, 2018).
3 Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 57 Harv. Int'l L.J. 261 (2016).
4 Aaditya Mattoo & Arvind Subramanian, A China Round of Multilateral Trade Negotiations (Working Paper Series WP12-4, Peterson Institute for International Economics), available at http://www.iie.com/publications/wp/wp11-22.pdf.
5 Weihuan Zhou, Henry Gao & Xue Bai, Building a Market Economy Through WTO-Inspired Reform of State-Owned Enterprises in China, 68 Int'l & Comp. L.Q. 977 (2019).
6 Appellate Body Report, United States–Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, paras. 317–18, WT/DS379/AB/R (adopted Mar. 25, 2011).
7 See Michel Cartland, Gérard Depayre & Jan Woznowski, Is Something Going Wrong in the WTO Dispute Settlement?, 46 J. World Trade 979, 1001–14 (2012); Wu, supra note 3, at 301–05 (2016).
8 Appellate Body Report, United States – Countervailing Duty Measures on Certain Products from China – Recourse to Article 21.5 of the DSU by China, para. 5.99, WT/DS437/AB/RW and Add.1 (adopted 15 August 2019).
9 Id., para. 5.100.
10 Id., para. 5.147.
11 Id., para. 5.144.
12 Testimony of Jennifer Hillman Before the U.S.-China Economic and Security Review Commission Hearing on U.S. Tools to Address Chinese Market Distortions (June 8, 2018), available at https://www.uscc.gov/sites/default/files/Hillman%20Testimony%20US%20China%20Comm%20w%20Appendix%20A.pdf.
13 Office of the United States Trade Representative (USTR) Press Release, Joint Statement by the United States, European Union and Japan at MC11 (Dec. 12, 2017), at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2017/december/joint-statement-united-states.
14 USTR Press Release, USTR Robert Lighthizer Statement on the Conclusion of the WTO Ministerial Conference (Dec. 14, 2017), at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2017/december/ustr-robert-lighthizer-statement.
15 European Commission, WTO Modernisation: Introduction to Future EU Proposals (Sept. 18, 2018, available at https://trade.ec.europa.eu/doclib/docs/2018/september/tradoc_157331.pdf.
16 WTO, General Council, Strengthening and Modernizing the WTO: Discussion Paper – Communication from Canada, JOB/GC/201 (Sept. 24, 2018).
17 See, e.g., Proposal by The European Union, China, Canada, India, Norway, New Zealand, Switzerland, Australia, Republic of Korea, Iceland, Singapore, Mexico, Costa Rica and Montenegro, on AB Reform, WT/GC/W/752/Rev.2 (Dec. 10, 2018) [hereinafter EU Proposal]; Proposal by Canada Titled Strengthening the Deliberative Function of the WTO, JOB/GC/211 (Dec. 14, 2018) [hereinafter Canada Proposal].
18 See, e.g., Proposal by the United States Titled, An Undifferentiated WTO: Self-Declared Development Status Risks Institutional Irrelevance, WT/GC/W/757/REV.1 (Jan. 15, 2019); Proposal by Argentina, Costa Rica, The European Union, Japan, and the United States Titled Procedures to Enhance Transparency and Strengthen Notification Requirements Under WTO Agreements, JOB/GC/204 (Nov. 1, 2018).
19 The members include Australia, Brazil, Canada, Chile, European Union, Japan, Kenya, Korea, Mexico, New Zealand, Norway, Singapore, and Switzerland.
20 See EU Proposal, supra note 17, at 4–6; Canada Proposal, supra note 17, at 5.
21 On public body, see: United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, at 2869, WT/DS379/AB/R, DSR 2011:V (2011) (Appellate Body Report); on forced technology transfer, see: China—Certain Measures Concerning the Protection of Intellectual Property Rights—Request for Consultations by the United States, WT/DS542/1, IP/D/38 (2018); China—Certain Measures on the Transfer of Technology—Request for Consultations by the European Union, WT/DS549/1, G/L/1244, IP/D/39 (2018); on digital trade barrier, see: China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, at 3, WT/DS363/AB/R, DSR 2010:I (2010) (Appellate Body Report); see also the potential WTO case when Google pulled out of China, which was discussed in Henry S Gao, Google's China Problem: A Case Study on Trade, Technology and Human Rights Under the GATS, 6 Asian J. WTO & Int'l Health L. & Pol'y 347 (2011).
22 For an overview of China's data regulation framework, see Henry Gao, Data Regulation with Chinese Characteristics (SMU Centre for AI & Data Governance Research Paper No. 2019/04; Singapore Management University School of Law Research Paper No. 28/2019), available at https://ssrn.com/abstract=3430284 or http://dx.doi.org/10.2139/ssrn.3430284.
23 See EU Proposal, supra note 17, at 9–11; Canada Proposal, supra note 17, at 2.
24 USTR, 2002 Report to Congress on China's WTO Compliance, 22–23 (Dec. 1, 2002), available at https://china.usc.edu/sites/default/files/article/attachments/2002-report-chinas-wto-compliance.pdf.
25 USTR, 2018 Report to Congress on China's WTO Compliance, 75 (Feb. 2019), available at https://ustr.gov/sites/default/files/2018-USTR-Report-to-Congress-on-China%27s-WTO-Compliance.pdf.
26 Id.
27 Id. at 76.
28 General Council & Council for Trade in Goods, Procedures to Enhance Transparency and Strengthen Notification Requirements Under WTO Agreements – Communication from Argentina, Australia, Canada, Costa Rica, the European Union, Israel, Japan, New Zealand, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, and the United States – Revision, at 3–4. 3, JOB/GC/204/Rev.3, JOB/CTG/14/Rev.3 (Mar. 5, 2020).
29 EU Proposal, supra note 17, at 6.
30 Id. at 7.
31 Canada Proposal, supra note 17, at 5.
32 United States, Draft General Council Decision - Procedures to Strengthen the Negotiating Function of the WTO - Decision of X Date, at 1–2, WT/GC/W/764 (Feb. 15, 2019).
33 MOFCOM Press Release, China's Position Paper on WTO Reform (Dec. 20, 2018), at http://english.mofcom.gov.cn/article/newsrelease/counselorsoffice/westernasiaandafricareport/201812/20181202818679.shtml.
34 WTO, General Council, China's Proposal on WTO Reform: Communication from China, WT/GC/W/773 (May 13, 2019).
35 Id., paras. 2.1–2.10.
36 MOFCOM, supra note 33.
37 WTO, supra note 34, Sec. 2.4.2.
38 The three core interests are: preserving China's basic state system and national security; national sovereignty and territorial integrity; and the continued stable development of China's economy and society. See Michael D Swaine, Part One: On “Core Interests,” in Michael D Swaine, 34 China Leadership Monitor, available at https://carnegieendowment.org/files/CLM34MS_FINAL.pdf. State-owned economy is the basic economic system according to Articles 6 and 7 of the Chinese Constitution, which also state that public ownership and state-owned economy shall be the leading force in the economy.
39 WTO, supra note 34, para. 2.22.
40 Henry Gao, Digital or Trade? The Contrasting Approaches of China and US to Digital Trade, 21 J. Int'l Econ. L. 297, 308–10 (2018).
41 WTO, supra note 34, para. 2.28.
42 Id.
43 MOFCOM, supra note 33.
44 Id.
45 Third World Network, Many Developing Countries Against Trade Facilitation Rules in WTO (June 28, 2003), at https://www.twn.my/title/twninfo35.htm.
46 WTO Trade Facilitation Agreement Database, at https://www.tfadatabase.org/members/china/measure-breakdown?date=2020.
47 Id.
48 WTO, Committee on Trade and Development, Special and Differential Treatment Provisions in WTO Agreements and Decisions, Note by the Secretariat, WT/COMTD/W/239 (Oct. 12, 2018).
49 Henry Gao, The WTO Transparency Obligations and China, 12 J. Comp. L. 329, 350–53 (2018).
