China’s Increasing Participation of in WTO/DSM

To date in April 2013, China has filed 11 cases as complainant but has been involved in 30 cases as

1 See Statistics on the webpage of “China and the WTO”, available at:

http://www.wto.org/english/thewto_e/countries_e/china_e.htm (visited: April 27, 2013)

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respondent as indicated in the following Table 1.

Table 1 Number and Frequency of China’s WTO Cases

Year 02 03 04 05 06 07 08 09 10 11 12 Total

Source: World Trade Organization, Disputes by Country/territory²

If we look into the details of each case, all the subjects and results could be summarized in the following Table 2 (China as defendant) & Table 3 (China as complainant).

Table 2 Subjects and Results of China’s WTO Cases-- China as Respondent (total 30 cases, 19 distinct matters)

Respondent Complainant Dispute number Year Subject Results China United States 8 April 2010, China and the United States notified the DSB of Agreed Procedures

2 Available at: http://www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm (visited: April 4, 2013)

6

Respondent Complainant Dispute number Year Subject Results

under Articles 21 and 22 of the DSU

On 17 January 2013, China and the United States informed the DSB of Agreed Procedures under Articles 21

7

Respondent Complainant Dispute number Year Subject Results

China US DS 414 2010 Countervailing

On 12 January 2011, the European Union requested to join the consultations. On 17 January 2011, Japan

26 Feb 2013 Panel Report circulated

8

Respondent Complainant Dispute number Year Subject Results and

Source: reorganized by the author according to the datum on the webpage of World Trade Organization, China and the WTO³

Table 3 Subjects and Results of China’s WTO Cases-- China as Complainant (total 11 cases, 11 distinct matters)

Respondent Complainant Dispute number Year Subject Results

US EC, Japan,

3 Available at http://www.wto.org/english/thewto_e/countries_e/china_e.htm (visited: April 28, 2013)

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Respondent Complainant Dispute number Year Subject Results Zealand,

Brazil

Certain Steel Products

US terminated all of the safeguard measures subject

On 25 October 2012, China and the European Union informed the DSB of Agreed Procedures under Articles 21 and 22 of the DSU

10

Respondent Complainant Dispute number Year Subject Results

US China DS 399 Sep

On 25 October 2012, China and the European Union informed the DSB of Agreed Procedures under Articles 21

Panel established, but not yet composed

on 17 December 2012

11

Respondent Complainant Dispute number Year Subject Results European

Source: reorganized by the author according to the datum on the webpage of World Trade Organization, China and the WTO⁴

From the cases list mentioned above, we could clearly know that China is now one of the “Big Three”⁵, along with the US and the EU in WTO disputes settlement. For analyzing the transformation of China’s role in WTO/DSM, some scholars divided the stages of China’s participation in WTO disputes into two stages, and some others defined them as three stages.

For example, Matthew Kennedy used the two stages analyses by the criteria of every five years since the China’s accession in 2001; he argued that in the first five years (2002-2006), China was a perennial third party in panel proceeding and since the second five years (2007-2011), China became a principal party in its own rights at the consultations, panel and appellate stages⁶. Moreover, Minyou Yu and Hen Liu basically took the same chronicle division as first and second five years for China’s role in WTO/DSM⁷. In addition, a little bit different, Wenhua Ji & Cui Huang used the year of 2009 for the division of two phases⁸, because since 2009, China became a major player in WTO/DSM.

Amongst the three stages analyses, Lisa Toohey described the China’s participation in WTO disputes as

“early engagement”⁹ (2001-2006), “escalating involvement”¹⁰ (2007-2008) and final “key litigant asserting influence”¹¹ (2009-). Similarly, Tong Qi also divided the China’s participation in WTO/DSM into three phases¹²: “an active third-party”¹³ (before 2006), “from a reluctant and easy-to-compromise respondent to a

4 Available at http://www.wto.org/english/thewto_e/countries_e/china_e.htm (visited: April 28, 2013)

5 Minyou Yu & Hen Liu, China’s Ten Years in the WTO: its Performance and New Challenges, 7(3) FRONTIERS OF LAW IN CHINA 329, 333 (2012).

6 Matthew Kennedy, China’s Role in WTO Dispute Settlement, 11(4) WORLD TRADE REVIEW 555, 558 (2012).

7 Minyou Yu & Hen Liu, supra note 5, at 352.

8 Wenhua Ji & Cui Huang, China’s Experience in Dealing with WTO Dispute Settlement: a Chinese Perspective, 45(1) JOURNAL OF WORLD TRADE 1, 2 (2011); Wenhua Ji & Cui Huang, China’s Path to the Center Stage of WTO Disput Settlement: Challenges and Reponses, 5(9) GLOBAL TRADE AND CUSTOMS JOURNAL 365, 365 (2010).

9 Lisa Toohey, China and the World Trade Organization: the First Decade, 60 INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 788, 789 (2011).

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more hardened opponent”¹⁴ (2006-2009) and “from a shy complainant to a proactive challenger”¹⁵ (after 2009). Besides, Chi Manjiao also tacitly share the three stages division by using the two landmark years of 2006 (the end of “the transitional period”) and 2009 (“the year of China for the WTO dispute settlement since 7 of 14 case filed in that year involved China”)¹⁶. Furthermore, Marcia Don Harpaz shared the years of 2006 and 2007 for division, because in the year of 2006 “China decides to fight to the finish”¹⁷ in Auto Parts case, and in 2007 “China lodged its first independent formal complaint”¹⁸.

Nevertheless, all the statistics in the above mentioned studies dated before 2012. If we include the datum in 2012, we could find an amazing engagement of China in WTO/DSM in amount of 10 cases, more than the Year of China in 2009 in 7 cases. Especially, in 2012, China as respondent was involved in 7 cases. Therefore, if we observed the China’s participation to date in April 2013, we could pick up some important years for remarking different periods, as show in Table 4.

Table 4 Remarkable Years and Events for China’s Participation in WTO/DSM

Year Event

2002 China’s first win in DSM (along with other countries)

against US

2004 First complaint against China

2006 Auto Parts Case: The first Case that China decided to

go through all the proceedings (but China’s first loss)

2007 China’s first independent claim (no results yet)

2009 Year of China in WTO/DSM

2012 Involved in 10 cases more than in 2009 (7 cases)

A Super Year of China?

Source: by the Author

If we observe the respondent role of China, the year of 2004 is worthy of attention because of the first compliant against China was filed and finally the case was settled by mutual agreement. In addition, the year of 2006 is without doubt the most important because China firstly decided to go through all the proceedings in dispute settlements. In addition, some special developments in cases where China was respondent also attract us, for example, in the case of Auto Parts (DS 339, 340 & 342) where China firstly lost as respondent, China reported its implementation in 2009; in the case of IPR (DS 362), it’s the first time that China entered the stage of compliance proceedings (DSU articles 21 & 22) as respondent; later in the case of Raw Materials (DS 394, 395 & 398), the proceedings of compliance also intervened.

14 Ibid., at 161.

15 Ibid., at 163.

16 Chi Manjiao, China’s Participation in WTO Dispute Settlement over the Past Decade: Experiences and Impacts, 15(1) JOURNAL OF INTERNATIONAL ECONOMIC LAW 29, 32 (2012).

17 Marcia Don Harpaz, Sense and Sensibilities of China and WTO Dispute Settlement, 44(6) Journal of World Trade 1155, 1171 (2010).

18 Ibid., at 1175.

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However, if we look at the role of complaint, even though China at the outset won a case in 2002 along with other Members, the year of 2007 is significant for China’s first independent compliant, even though there’s no further development of this case but just remaining in the consultation stage. And, the year of 2009 will be noteworthy cause in that year China began its active participation for filing complaints against other Members. The year of 2009 is also momentous because China enjoyed its first sole victory in Poultry case (DS 392). But, in the case of Tyres (DS 399), it’s the first time that China as complaint did not convince the Panel and the Appellate Body for favoring its arguments against the US. On the other hand, China also started to intervene in compliance proceedings against the EU in the case of Footwear (DS 405) in Oct 2012.

In sum, if we take a synthesis perspective, China’s participation in WTO/DSM majorly began in 2006, and remains till now in the average of more than 5 cases per year, especially reaching the new peak of 10 cases in 2012 (A Super Year of China?). Maybe we could describe the participation of China as a linear increasing development to date.