CHINA'S COMPLIANCE WITH

WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

A Report Prepared for the

U.S.-China Security and Economic Review Commission

March 19, 2004

Terence P. Stewart

STEWART AND STEWART

2100 M Street, NW

Washington, DC 20037
Final Report -- i

March 19, 2004

TABLE OF CONTENTS

PAGE

I. EXECUTIVE SUMMARY 1

II. CHINA’S 1ST TWO YEARS OF WTO MEMBERSHIP 10

A. Compliance Efforts 10

1. Modification to laws, regulations 10

2. Committee participation 21

3. Technical assistance program from the WTO and

member nations 29

(a) WTO 29

(b) United States 39

(c) EU and other countries 55

B. The Transitional Review Mechanism 62

1. What is required by Article 18 of the Protocol 62

2. Experience in the first review 72

(a) Timing of review issues 72

(b) Data supplied by China at beginning of review 75

(c) Willingness of China to respond to questions in

writing 80

(d) Nature of the reports provided 83

(e) Issues identified by WTO Members 86

3. Experience in the second review 97

(a) Procedural changes if any 97
Final Report -- ii

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TABLE OF CONTENTS

PAGE

(b) Data supplied by China at beginning of review 100

(c) Issues identified by WTO Members 107

C. U.S. and Private Sector Monitoring and Bilateral Approaches

to Address Issues 120

1. Bilateral mechanisms for addressing issues 120

2. Monitoring programs 127

(a) Government 127

(b) Private sector 140

3. Issues of importance identified in first two years 143

(a) Trading rights 145

(b) Automotive issues (financing, market access) 153

(c) Financial services 158

(d) Administration of TRQs in agriculture 165

(e) Tariffs 170

(f) VAT 175

(g) SPS 178

(h) Intellectual property rights 180

(i) Subsidies 186

D. U.S. Use of Transitional Rights (textile safeguards; Section

421; AD NME status) 192
Final Report -- iii

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TABLE OF CONTENTS

PAGE

1. Protocol of accession provisions 192

2. U.S. implementing provisions or existing laws 202

3. Efforts by U.S. industries to use the provisions 222

(a) Textile safeguards 222

(b) Import surges and Section 421 of the Trade Act

of 1974 as amended 228

(c) Treatment of China as a non-market economy

under U.S. antidumping duty law 236

III. CONCLUSION AND RECOMMENDATIONS 240
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 1

I. EXECUTIVE SUMMARY

China’s accession to the World Trade Organization at the end of 2001 was and is an

historic event and a great experiment. Because China is a huge country, with a very rapidly

expanding economic base and an economy which continues to reflect significant state

involvement in decisions of resource allocation, there was no certainty at the time of accession

that China’s economic system would mesh well with the World Trade Organization rules and

other trading partners’ generally market-oriented economies.

Indeed, in the history of the GATT, and now World Trade Organization, never has a

country of such trading importance been admitted with a system that was still so far from

conformance with GATT/WTO norms. China has worked hard to make an enormous array of

changes to its legal and regulatory system before accession and had much work to do after

accession if membership was to present the market opportunities within China that trading

partners expected.

It is twenty-seven months since China became a member of the WTO, and it may be

possible now to form a better picture of the level of compliance achieved to date and the

problems that remain ahead.

First, it must be noted that China has complied with many of its WTO obligations. China

has generally implemented in a timely manner tariff reduction commitments, one of the more

important obligations assumed by China in joining the WTO. Similarly, China has revised many

of its laws and regulations to mirror WTO obligations. Although governments and companies

report improvements in China's legal framework supporting intellectual property rights, IPR

enforcement lags seriously behind as piracy and counterfeiting remain rampant. China has also
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 2

improved transparency in many aspects though not consistently and not to the level desired or

committed to by China.

However, the record of China's first two years of WTO membership demonstrates that

many obligations have not been met or have been met but with significant delays. For example,

the problems that various parts of US agriculture have faced with China’s TRQ administration

are one example of China's failure and/or delay in implementing obligations that are important to

US exporters. Similarly, China is at least two years in arrears on its commitment to open auto

financing and has received significant criticism for its handling of auto and auto parts limits

consistent with commitments undertaken, although there are recent positive developments in all

these areas. Financial service providers (as well as other service sectors) have found that China

is implementing its obligations late, if at all, and with restrictions not encountered in other

countries, which effectively reduces the value of the market opening promised by China.

So also, trading rights – which were to have been significantly liberalized by now and to

have become universal by the end of 2004 – remain severely limited in many circumstances

despite the importance of these commitments to all WTO members during China’s accession

negotiations. China committed to giving full trading rights to joint-venture enterprises with

majority share foreign-investment two years after accession, that is, by December 11, 2003.

China, however, failed to meet this deadline and continues to impose conditions such as

capitalization requirements, import levels, export levels and prior international trade experience.

These types of conditions on trading rights were common before accession but were precisely the

types of restrictions that were to have been eliminated as part of China's accession commitments.
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The 2003 China WTO compliance report issued by the US Trade Representative found

that China’s WTO implementation efforts failed to meet its commitments in important areas, and

that, in some cases, China has imposed new or additional trade barriers. Among other problems,

USTR found significant shortfalls with China's commitments regarding: agriculture (TRQs on

bulk agricultural commodities -- problems with sub-quotas, import licensing, allocation); the

TRQ on fertilizer; services (capitalization and other requirements that exceed international norms

in such service sectors as banking, insurance, construction/engineering, and express courier);

enforcement of intellectual property rights (continued IPR infringement affecting products,

brands and technologies from a wide range of industries, including films, music, publishing,

software, pharmaceuticals, chemicals, information technology, consumer goods, electrical

equipment, automotive parts and industrial products); trading rights (continued restrictions);

distribution rights (e.g., potential restrictions on the ability to sell imported and China-made

autos from the same location); SPS (new requirements on seafood; a threatened ban on

soybeans); customs (continued use of inaccurate valuation methods); VAT (discriminatory tax

on semiconductors, fertilizer, and other products favors domestic producers over US exports);

telecom standards (e.g., a requirement to use two mandatory encryption standards in wireless

networks different from internationally-recognized standard used by US companies); the use of

the China Compulsory Certification (CCC) mark (China safety certification process is

duplicative and discriminatory); and transparency (uncertainty and lack of uniformity is

common; limited opportunity to comment on proposed laws and regulations).

The problems with China's WTO compliance appear to fit into several categories. Some

problems simply reflect the difficulties experienced with meeting timeline commitments and not
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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a lack of desire or willingness to make the changes. Delays of a few months or longer in matters

that China ultimately complied with would be examples of this category. Other problems appear

to reflect internal problems within the Chinese government in getting ministries to make changes

agreed to by the central government in their areas of control. Problems in TRQ administration in

agriculture and the delays and additional unwarranted burdens imposed in the financial services

areas would be two typical examples of this category. Still other problems reflect the need for

infrastructure changes or longer-term educational or normative behavior changes – the chronic

and pervasive problem of piracy and counterfeiting of intellectual property in China and the need

to make effective changes in the system of IPR enforcement is a prime example of this category.

At the same time, China has aggressively worked to undermine the utility of provisions

added to its accession protocol which were designed to ensure multilateral supervision of timely

compliance or to permit other WTO members to exercise rights to limit imports from China

during a transitional period as China makes further modifications to its trading system to become

more WTO compliant. Such actions by China do not amount to problems with “compliance” as

that term would normally be considered, but they nonetheless significantly undermine the value

of the commitments undertaken by China and rights secured by China’s trading partners. Two

examples of this action at work may be seen in the Transitional Review Mechanism (or TRM)

and the use of special safeguard mechanisms.

Regarding the multilateral supervision and monitoring of China’s implementation of its

commitments, Article 18 of China’s protocol of accession to the WTO requires an annual review

for eight years and a final review in the 10th year after accession by each standing committee and

by the three councils of the WTO (Goods, Services, TRIPS) and by the General Council of
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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China’s progress in implementing various WTO obligations. Article 18 envisions that

recommendations could be made to China by the TRM review bodies with respect to improving

China's WTO compliance. This obligation mirrors the obligation Congress sought to have

included in China’s protocol of accession in 2000 in agreeing to grant China most-favored nation

status under US law.

The US, EU, Japan and other countries believed that the Article 18 obligation would be

robust, meaning that WTO members would be able to forward questions in advance, receive

written responses and submit follow-up questions for similar treatment. This is normal WTO

practice in all of the Committees for other reporting obligations.

Other members (including the US) were also interested in setting up a schedule early in

China’s membership to ensure the process would be meaningful and would permit a thorough

evaluation. China refused to permit the Article 18 process to go beyond the literal language of

the protocol. Since there was no timeline identified, China would not agree to early meetings

and, in fact, blocked agendas being issued or meetings being held where the topic of the Article

18 TRM was included. China took the position that Article 18 did not mention written answers

and so has refused to provide written responses or permit the process to be one in which a series

of questions and answers takes place to provide better transparency on the operation of various

Chinese programs. Because the WTO works on consensus, China has not agreed to have any

document originate from the various standing committees or the councils that goes beyond a

review of topics identified. Consequently, no conclusions or recommendations have been made.

As a result of China’s behavior in 2002, expectations of WTO members for the Article 18

process were effectively lowered, as can be seen in the various 2003 TRM committee reports and
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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notes. It is understood, however, that while China continues to refuse to provide answers in

writing in advance of meetings of the TRM, it did regularly provide a copy of the statement of

their spokesperson at the end of committee meetings during the 2003 TRM process.

Because the Article 18 process is just one of the ways member nations work with China

to understand developments in the country and to address problems that may arise, it is hard to

characterize the lowering of expectations in the Article 18 process as critical for China’s

compliance effort. Nevertheless, it is an important example of a concerted effort by China to

minimize an important obligation undertaken.

With respect to special safeguards, the protocol of accession permits countries to take a

safeguard action against imports from China alone where market disruption is caused by

increased imports during the transition of China to full implementation of all obligations. In the

United States, this safeguard action is referred to as a Section 421 action. In addition, the

accession agreement permits Members to apply special textile safeguard provisions until 2008 in

order to address import surges of textile products that cause market disruption. Both of these

special safeguard measures were important provisions in the US for Congress and many

industries concerned about expanded competition with China at a time when China's economic

system was still so dissimilar to that of the US. These special measures were important to other

countries as well.

When Congress enacted Section 421 as part of the bill granting permanent normal trade

relations with China, it indicated that Section 421 should be applied vigorously to address import

surges from China. The rationale behind Section 421 was that US industries should not suffer

job losses to competition from Chinese imports during a transitional period when China was still
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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adjusting to WTO obligations. Moreover, Congress expressly stated that there was a statutory

presumption in favor of providing relief to affected industries.

China, however, has worked very hard in the United States to encourage the US

Government not to take advantage of these rights enjoyed by all WTO Members pursuant to

China’s accession agreement. Indeed, China lobbied heavily during early Section 421 cases and

lobbied the Administration against using the textile safeguard provisions adopted by the US after

China’s accession. In the first Section 421 case involving pedestal actuators, press stories

reported that the Chinese government conducted an intense and wide ranging lobbying campaign

to block relief. Chinese officials met with US officials and argued that the use of Section 421

would undermine China’s market access to the United States and have a negative political

impact. The result has been that the first five cases brought under Section 421 were denied relief

(three by the President), even though the purpose of the statute and Congressional intent was that

relief would be reasonably available.

With respect to the textile safeguard, the US administering agency (CITA) took almost 17

months to issue procedural rules detailing how petitions should be filed and the type of

information that should be submitted. During those 17 months, the US textile industry

repeatedly urged CITA to act expeditiously and even filed a number of petitions before CITA

issued its rules. CITA did not act on these petitions and the US industry had to refile its petitions

after CITA issued its procedural rules. CITA's delay was costly to the US textile industry in

terms of closed plants and lost jobs.
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As a self-selected developing country, China is eligible for technical assistance from the

WTO. In keeping with the Doha Ministerial mandate to increase and improve technical and

capacity building assistance to developing countries, China has received substantial technical

assistance from the WTO, as well as from other multilateral organizations and from individual

countries, including the United States. Much of the technical assistance to China has focused on

helping China to understand and effectively implement its WTO obligations.

Active monitoring of China's implementation of its WTO commitments is essential to

successful integration of China into a rules-based world trade regime and to the ability of China's

trading partners to reap the benefits of liberalized trade. Meaningful monitoring is also

important to maintaining public support and confidence in the benefits of trade agreements.

With respect to China's compliance with the WTO, a number of federal agencies, led by USTR,

have devoted special attention and additional resources to monitoring China's implementation,

and Congress has mandated that USTR prepare an annual report on China's progress. In

addition, the private sector has a strong interest in monitoring China's implementation of its

WTO obligations, as it is likely to experience implementation problems first hand. The private

sector also supports and supplements the US Government's monitoring efforts by identifying

actual and specific incidents of non-compliance.

In addition to US efforts through the WTO to encourage China's WTO compliance, the

US has maintained an active series of bilateral discussions with China throughout the past two

years. USTR's 2003 China compliance report highlights these bilateral efforts and stresses their

importance given China's shortfalls in meeting many of its WTO commitments. The bilateral

channels include formal high-level discussions as well as informal meetings. And, in 2003, the
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Administration established the "Trade Dialogue," a sub-cabinet dialogue on WTO compliance

and other trade matters that brings together U.S. economic and trade agencies and various

Chinese ministries and agencies with a role in China’s WTO implementation. Trade Dialogue

meetings were convened twice in 2003 (February and November) and were used to communicate

specific trade concerns and served as an early warning mechanism for emerging trade disputes.

In sum, given the disappointing results of 2003 as noted in the USTR's compliance

report, China's compliance with its WTO commitments would merit a grade of no better than

"C". Although China has, in many areas, made a good faith effort in reforming its laws and

regulations, in implementing changes to its tariffs, and in transforming its trade practices to

conform to GATT/WTO requirements, China's record in the first two years of WTO membership

shows that China has not fully complied with its obligations, and that there have been, and are

still, significant problems in China's implementation of its WTO commitments which cannot be

attributed simply to start-up difficulties.
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II. CHINA’S 1ST TWO YEARS OF WTO MEMBERSHIP

It should be noted at the outset that there are two very large overarching issues that are

not taken up in the context of this research report but which are being separately pursued by

domestic parties -- the issues of China's currency valuation and China's labor practices.1

 Both

are potentially of enormous importance to the US-China bilateral trade relationship but are not

further addressed in this report.

A. Compliance Efforts

1. Modification to laws, regulations

Accession to the WTO provided a catalyst for sweeping legal reform in China. WTO

membership put the Chinese legal system under scrutiny, as China needed to bring its traderelated legal regime into conformity with the WTO Agreements and to honor its obligations with

respect to development of the rule of law. In the meantime, as the development of the market

economy and privatization gains momentum, China believes there is a need to foster internally a

 

1 The Fair Currency Alliance, a group of trade associations and unions representing manufacturing, agriculture

and labor, has announced that it intends to develop a “Section 301 Petition” to address the problem of Chinese

currency manipulation. See Fair Currency Alliance Hires Law Firm For ‘Section 301’ Case On Chinese

Currency Manipulation, FCA press release, January 29, 2004; available at http://www.cbia.com/

Business/TradeInfo/FCA%20Release%20announcing%20law%20firm.pdf.

On March 16, 2004, the AFL-CIO and the Industrial Union Council filed a Section 301 Petition with the US

Trade Representatives Office concerning China's labor practices. As summarized by the AFL-CIO:

The Petition charges that China’s brutal repression of internationally recognized workers’ rights

constitutes an unfair trade practice under Section 301(d) of the Trade Act, and that such

repression “burdens or restricts U.S. commerce.” It is the first time in the history of Section 301

that a petition has invoked the violation of workers’ rights as an unfair trade practice, although it

is quite common for corporations to use Section 301 to challenge other unfair trade practices,

such as violation of intellectual property rights.

Executive Summary of AFL-CIO Section 301 Petition; see www.aflcio.org/issuespolitics/globaleconomy/

ExecSummary301.cfm.
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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transparent, predictable and fair legal environment conducive for the smooth operation of its

economic reform.2

Both prior to and after WTO accession, China devoted considerable efforts in the reform

of its legal system. In December 2002, in the context of the first transitional review held by the

General Council, the Chinese representative reported with respect to the overhaul of China's laws

and regulations:

[T]o meet the needs of the WTO accession, his government, in

accordance with its commitments, had launched a massive

program regarding the enactment, amendment and repeal of laws,

regulations, and administrative rules, policies and measures which

are relevant to or affecting trade in goods, trade in services, traderelated intellectual property rights and assurance of transparency

and uniform application of trade regime. In September 2001, the

State Council had issued a circular requesting the local

governments to review local regulations, administrative rules,

policies and measures in line with the principles of uniform

application, non-discrimination and transparency. This work had

been basically finished.3

As indicated in the minutes of the meeting, the Chinese representative also outlined

China's efforts in improving the transparency of its trade regime and ensuring uniform

application of its trade policy as integral parts of China's reform of the legal framework:

 

2 The 16th China’s Party Congress held in the fall of 2002 laid two cornerstones for the development of a market

economy: encouragement of private entrepreneurship and protection of private property. See, e.g., Party

Congress Paves Cornerstones of Market Economy, People's Daily (12 November 2002); available at

http://english.peopledaily.com.cn/200211/12/eng20021112_106694.shtml. As part of the most recent

amendments to the Chinese Constitution adopted at the 2nd session of the 10th National People's Congress on

March 14, 2004, provisions were added protecting private property and encouraging and supporting the

development of non-public economic sectors. See Top Legislature Closes Session, Adopts Amendment to

Constitution, Xinhua News (March 14, 2004); available at http://news.xinhuanet.com/english/2004-

03/14/content_1365556.htm.

3 Minutes of Meeting Held in the Centre William Rappard on 10-12 and 20 December 2002, General Council,

WT/GC/M/77 (13 February 2003) at para. 30.
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[I]n accordance with Annex 1A to China's Accession Protocol,

relevant economic data and information had been provided to the

General Council in a timely manner as required by this review.

during this first year after China's accession, the notification

obligations had been fulfilled with more than 300 pieces of

notifications made according to various WTO agreements. A large

amount of information had been submitted in advance of review

held at subsidiary bodies.

In line with the accession commitments, the China WTO

Notification and Enquiry Center had been set up by the Chinese

government immediately after the accession to provide enquiry

service on trade-related information for all members, enterprises

and individuals. The establishment of this enquiry point had been

notified to the WTO.

The Chinese government had also designated Foreign Economic

and Trade Gazette as the official journal for the laws, regulations

and other measure relating to or affecting trade in goods, trade in

services, TRIPS and TRIMS, as these laws, regulations and

measures could not be enforced before their publication.

* * *

[T]o implement China's commitments, a relatively sophisticated

legal system had already been put in place to ensure the uniform

implementation of trade policy. According to the existing

legislation in China, any enterprise or individual could bring cases

of non-uniform application of laws, regulations, administrative

rules, policies and measures to the attention of a relevant authority.

The governmental administration and institutional reform

undertaken by China had formed solid basis for the

implementation of this system.4

At the Sino-American Legal Exchange Seminar in December 2002, Mr. Li Yuede,

Deputy General-Director of the Research Department of the Legislative Affairs Office of the

State Council, detailed China's achievement in revamping its laws and regulations:

 

4 Id. at para. 29-30.
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After the Sino-American bilateral negotiations concerning China's

accession to the WTO were concluded in November 1999, the

Chinese Government immediately started adjusting its traderelated domestic legal regime. * * * Until now, at the central

level, as arranged by the plan for formulating, revising, repealing

relevant domestic laws, the National People's Congress and its

Standing Committee has enacted or revised 14 recent laws, * * *;

the State Council has formulated or revised 37 administrative

regulations, * * * repealed 12 administrative regulations, and

stopped implementing 34 other relevant documents; and the

relevant departments of the State Council has enacted, revised or

repealed about 1000 department rules and other measures. The

Supreme People's Court has repealed 20 relevant judicial

interpretations and made relevant interpretations for the

adjudication of new administrative cases that may arise after the

accession. * * * The local regulations and local government

rules revised or repealed by the 31 provinces, autonomous regions

and municipalities directly under the Central Government and 49

larger cities, together with the relevant documents and other

measures the implementation of which was stopped by the

foregoing localities totaled more than 190,000, including 1,130

local regulations and 4,490 local government rules.5

China has made a determined and good-faith effort to reform its legal system. As the

US-China Business Council has commented:

The provisions of a large number of new and amended laws that

have been adopted since December 2001 have brought many areas

of China's trade and investment regimes into line with WTO

obligations and demonstrate the seriousness with which the PRC

government has approached the challenge of WTO compliance."6

 

5 Fully Performing Commitments for Accession to WTO and Effectively Improving Transparency of Legal

Systems, Speech Addressed at the Sino-American Legal Exchange Seminar by Deputy General-Director Li

Yue-De, Research Department of the Legislative Affairs Office of the State Council, P.R. China.

6 China's WTO Implementation Efforts: An Assessment of the First Nine Months of China's WTO Membership,

Written Testimony of US-China Business Council prepared for the hearing held by USTR on China's

compliance with its WTO commitments (September 3, 2002).
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The following tables illustrate the degree to which China has promulgated newly enacted

or revised laws and regulations pertaining to trade, both in preparation for and following

accession. Many of the laws and regulations listed below have been notified to the WTO (see

Appendix 7 for a list of laws and regulations notified by China to the WTO since accession).

In summary, for trade in goods, China:

• promulgated a series of regulations and administrative measures concerning import

administration of goods, including import quotas, specific tendering, import licensing,

automatic import licensing and tariff rate quotas;

• promulgated new laws and regulations in antidumping, countervailing and safeguard

measures to bring the trade remedy regime into conformity with the WTO rules.

For the investment regime, China:

• revised the basic laws concerning foreign investment, i.e., Law on Chinese-Foreign

Equity Joint Venture, Law on Chinese-Foreign Contractual Joint Venture, and Law

on Wholly Foreign Owned Enterprises. The revision includes the elimination and

cessation of enforcement of requirements on trade and foreign exchange balancing,

local content, export performance, compulsory technology transfer, etc.

• promulgated the revised Provisions on Guiding Foreign Investment Direction and

Industrial Catalogue for Foreign Investment. Under the new provisions and

catalogue, China has liberalized further the restrictions imposed on the proportion of

foreign equity in investment projects and opened new sectors to foreign investment.

The newly opened sectors include telecommunications, urban water supply and

drainage, construction and operation of gas and heat distribution network, which were

previously prohibited from any foreign investment.7

For trade in services, China :

• issued a series of new regulations and administrative rules in various service sectors

(e.g., banking, insurance, legal, telecommunications, freight forwarding, tourism

services, audio-visual related services, etc.) to consolidate the legal basis upon which

improved market access opportunities for foreign services suppliers rested.8

 

7 Communication from China - Information Provided by China on Annex 1A of the Protocol in the context of the

Transitional Review Mechanism, G/TRIMS/W/26 (11 October 2002) at II.3 and IV.8.

8 Report of the Meeting Held on 25 October 2002, S/C/M/63 (11 November 2002) at para. 18.
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For intellectual property rights protection, China:

• conducted across-the-board amendment of IPR laws and regulations to bring IPR

protection in line with the requirements laid out by the TRIPS Agreement respecting

copyright, patent, and trademark;

• adopted new regulations governing the protection of layout design of integrated

circuits and new varieties of plants;

• with respect to the details of the legal revisions, for example, the amended Trademark

Law adds the provisions regarding the protection of geographic indications and wellknown trademarks, expands the scope of eligible subject matter of a trademark,

stipulates the right of priority, and provides for judicial review of the administrative

decisions related to trademark registration. The revised Copyright Law enlarges the

scope of protection, clarifies the rights of performers and producers, adds the

provisional measures of property and evidence preservation, and stipulates the

amount of statutory damages. The revised Patent Law stipulates conditions for

granting compulsory licenses, and adds the provision of judicial review for

administrative decision regarding patent of utility model and design.9

i. Trade in Goods

Import administration

Regulation Date Notified

to WTO

Implementation rules on administration of automatic import licensing of

machinery and electronic products

effective 01 Jan 2002 X

Measures on administration of import of machinery and electronic

products

effective 01 Jan 2002 X

Implementation rules on the administration of import quotas of

machinery and electronic products

effective 01 Jan 2002 X

Implementation rules on the administration of import of specific

machinery and electronic products

effective 01 Jan 2002 X

Interim measures on the administration of import quotas of natural rubber effective 05 Feb 2002 X

Implementation rules on the administration of import tariff rate quota of

wool and wool tops of 2002

effective 05 Mar 2002 X

The quantity, conditions of application and allocation methods of import

tariff rate quota of important agricultural products of 2002

effective 10 Feb 2002 X

Interim measures on the administration of import tariff rate quota for effective 05 Feb 2002 X

 

9 Transitional Review Mechanism of China - Communication from China, IP/C/W/382 (16 September 2002).
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Regulation Date Notified

to WTO

agricultural products

Interim measures on the administration of import tariff rate quota for

agricultural products (new)

effective 27 Sep 2003

after amendment

Implementation rules on the administration of automatic import licensing

of important industrial products

effective 01 Feb 2002 X

Measures on the administration of import licences for goods effective 01 Jan 2002 X

Circular on the reallocation of import tariff rate quota for important

agricultural products of 2002 N/A X

Measures on the administration of automatic import licensing of goods effective 01 Jan 2002 X

The allocation methods for import quantity of automobile tyres under

import quota and application procedures in the year 2002

promulgated on 18 Jan

2002

X

The allocation method for import quantity of processed oil under import

quota and application procedures in the year 2002

promulgated on 18 Jan

2002

X

The allocation methods for import quantity fertilizer under tariff rate

quota and application procedures in the year 2002

promulgated on 18 Jan

2002

X

Decree on the adjustment of the import quotas (non-state trading) for

processed oil, automobile tyres and crude oil of 2002

promulgated on 13

Aug 2002

X

The allocation methods for import quantity of processed oil under import

quota and application procedures in the year 2003

promulgated on 31

July 2002

X

The allocation methods for import quantity of automobile tyres under

import quota and application procedures in the year 2003

promulgated on 31

July 2002 X

Implementing Rules on the Allocation of Tariff Rate Quota for Import of

Important Agricultural Products for 2003 N/A X

The Pronouncement on the Re-allocation of the Import Tariff Quota for

Important Agricultural Products for 2003 N/A X

Implementation Rules on the Administration of Tariff Rate Quota for

Import of Wool and Wool Tops for 2003 N/A X

Total Import Volume and Application Procedures for Crude Oil for NonState Trading in 2004 N/A X

Total Import Volume, Quota Allocation Criteria and Application

Procedures for Processed Oil for Non-State Trading in 2004 N/A X

Total Amount of Import, Allocation Principles and Application

Procedures for the Tariff Rate Quota on Chemical Fertilizer for 2003 N/A X

Implementation Rules on the Allocation of Tariff Rate Quota for Import

of Natural Rubber for 2003 N/A X

Interim Measures for the Administration of Import under State Trading

for Crude Oil, Processed Oil and Chemical Fertilizer N/A X

The Application Criteria, Documentation and Procedures Needed in the N/A X
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 17

Regulation Date Notified

to WTO

Submission for the Registration of the Right to Deal in the Non-State

Trading Imports of Crude Oil, Processed Oil and Fertilizers

Trade Remedy Regime

Regulation Date Notified

to WTO

Regulations on Antidumping effective 01 Jan 2002 X

Provisional Rules on Initiation of Antidumping Investigations effective 13 Mar 2002 X

Provisional Rules on Questionnaire in Antidumping Investigation effective 15 Apr 2002 X

Provisional Rules on Public Hearing in Antidumping Investigations effective 13 Mar 2002 X

Provisional Rules on Sampling in Antidumping Investigations effective 15 Apr 2002 X

Provisional Rules on Disclosure of Information on Antidumping

Investigations effective 15 Apr 2002 X

Provisional Rules on On-the-Spot Verification in Antidumping

Investigations effective 15 Apr 2002 X

Provisional Rules on Access to Non-Confidential Information in

Antidumping Investigations effective 15 Apr 2002 X

Provisional Rules on Price Undertakings in Antidumping Investigations effective 15 Apr 2002 X

Provisional Rules on New Shipper Review in Antidumping Investigations effective 15 Apr 2002 X

Provisional Rules on Refund of Antidumping Duty effective 15 Apr 2002 X

Provisional Rules on Interim Review of Dumping and Dumping Margin effective 15 Apr 2002 X

Rules on Investigations and Determinations of Industry Injury for

Antidumping effective 15 Jan 2003 X

Rules on Public Hearings with regard to Investigations of Injury to

Industry effective 15 Jan 2003 X

Regulations on Anti-subsidy effective 01 Jan 2002 X

Provisional Rules for Initiation of Countervailing Investigation effective 13 Mar 2002 X

Provisional Rules for Questionnaire in Countervailing Investigation effective 15 Apr 2002 X

Provisional Rules for On-the-spot Verification of Countervailing

Investigation effective 15 Apr 2002 X

Provisional Rules for Conduct of Public Hearing in Countervailing Duty

Investigation effective 13 Mar 2002 X

Rules on Investigations and Determinations of Industry Injury for

Countervailing Measures effective 15 Jan 2003 X

Regulations on Safeguard effective 01 Jan 2002 X

Provisional Rules on Initiation of Safeguard Investigations effective 13 Mar 2002 X
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Final Report, March 19, 2004 Page 18

Regulation Date Notified

to WTO

Provisional Rules on Hearing in Safeguard Investigations effective 13 Mar 2002 X

Rules on Investigations and Determinations of Industry Injury for

Safeguard effective 15 Jan 2003 X

Provisions of the Supreme People's Court on Certain Issues Concerning

the Applicability of Law in the Hearing and Handling of Antidumping

Administrative Cases

effective 01 Jan 2003

Provisions of the Supreme People's Court on Certain Issues Concerning

the Applicability of Law in the Hearing and Handling of Anti-subsidy

Administrative Cases

effective 01 Jan 2003

Rules of Origins

Regulation Date Notified

to WTO

Proclamation of the General Administration of Customs of the People's

Republic of China on Establishment of Pre-determination on Origin of

Imports

effective 11 Dec 2001 X

Provisional Rules of Origin for Imports under the First Agreement on

Trade Negotiations among Developing Member Countries or the

Economic and Social Commission for Asia and the Pacific

effective 01 Jan 2002 X

Customs Valuation

Regulation Date Notified

to WTO

Rules on Determination on Customs Valuation of Imported and Exported

Goods effective 01 Jan 2002 X

The Customs Regulations of the People’s Republic of China Regarding

Determination on Customs Value of Royalties and License Fees Related

to the Imported Goods

effective 01 July 2003 X

ii. Trade in Services

Regulation Date Notified

to WTO

Regulations on Administration of Foreign-Funded Financial Institutions effective 01 Feb 2002 X

Regulations on International Maritime Transportation effective 01 Feb 2002 X

Regulations on Administration of Travel Agencies amended on 11 Dec

2001 X

Measures on the Trial of Foreign-Invested Merchandising Enterprises effective 25 June 1999 X

Measures for Administration of Sino-Foreign Contractual Distribution effective 10 Dec 2001 X
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Final Report, March 19, 2004 Page 19

Regulation Date Notified

to WTO

Ventures of Audio-Visual Products

Provisional Regulations Governing the Foreign Invested Movie Theater effective 25 Oct 2000 X

Rules for Establishing Foreign-Invested Securities Companies effective 01 June 2002 X

Rules for Establishing Foreign-Invested Fund Management Companies effective 01 June 2002 X

Proclamation by the People's Bank of China on the Related Issues of

Foreign-Funded Financial Institutions' Market Access effective 09 Dec 2001 X

Regulations on Administration of Foreign Funded Insurance Companies effective 01 Feb 2002 X

Measures for Administration of Representative Offices of Foreign-Capital

Financial Institutions in China effective 18 July 2002 X

Provisions on Administration of Foreign Investment in Road Transport

Sector effective 20 Nov 2001 X

Provisions on Administration of International Freight Forwarding Agency

Enterprises with Foreign Investment

effective 1 Jan 2003 X

Regulations on Administration of Foreign Invested Telecommunications

Enterprises

effective 1 Jan 2002 X

Regulations on Exploitation of Offshore Petroleum Resources in

Cooperation with Foreign Enterprises effective 23 Sep 2001 X

Regulations on Exploitation of On-shore Petroleum Resources in

Cooperation with Foreign Enterprises effective 23 Sep 2001 X

Supplementary Circular Concerning the Handling of Delivery Services of

Inward-and–Outward Letters and Articles with Letter Nature effective 5 Sep 2002 X

Implementing Rules of the Regulations of the People’s Republic of China

on International Maritime Transportation effective 1 Mar 2003 X

Measures for the Administration of Foreign-invested International Freight

Forwarding Agencies effective 10 Jan 2003 X

Measures Governing Foreign Invested Distribution Enterprises for Books,

Newspapers and Periodicals effective 1 May 2003 X

Interim Regulations on the Establishment of Travel Agencies with

Foreign Majority Ownership and Wholly Owned by Foreign Investors effective 11 July 2003 X

Administrative Rules Governing the Auto Financing Companies 260 effective 3 Oct 2003 X

Regulations of the People’s Republic of China on Chinese-Foreign

Cooperation in Running Schools effective 1 Sep 2003 X

Implementing Rules of the Regulations on the Administration of Foreignfunded Financial Institutions effective 1 Feb 2002

Provisional Rules on the Establishment of Sino-Foreign Foreign Trade

Companies effective 2 Mar 2003

Rules Governing the Foreign Invested Urban Planning Service Enterprises effective 1 May 2003
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 20

Regulation Date Notified

to WTO

Regulations on the Administration of Foreign Invested Architectural and

Engineering Enterprises effective 1 Dec 2002

Regulations on the Administration of Foreign Invested Construction

Enterprises effective 1 Dec 2002

Notice on Issues Relating to the Experimental Establishment of Foreign

Invested Logistic Enterprises effective 20 July 2002

Implementation Rules for the Administrative Measures on Auto Financing

Companies effective 12 Nov 2003

Regulations on the Administration of Representative Office of Foreign

Law Firms effective 1 Jan 2002

Implementation Rules for the Regulations on the Administration of

Representative Office of Foreign Law Firms effective 1 Sep 2002

Measures for Administration of Representative Offices of Foreign

Insurance Institutions effective 1 Mar 2004

Implementation Rules for the Regulations on the Administration of

International Freight Forwarding Agencies

effective 1 Jan 2004

after amendment

Provisional Measures on the Administration of Domestic Securities

Investment of Qualified Foreign Institutional Investors (QFII) effective 1 Dec 2002

iii. Investment Regime

Regulation Date Notified

to WTO

Law on Chinese-Foreign Equity Joint Venture amended on 15 Mar

2001 X

Regulations for the Implementation of the Law on Sino-Foreign Equity

Joint Venture

amended on 22 July

2001 X

Law on Chinese-Foreign Contractual Joint Venture amended on 31 Oct

2000 X

Regulations for the Implementation of the Law on Sino-Foreign

Contractual Joint Venture effective 04 Sep 1995 X

Law on Foreign Capital Enterprises amended on 31 Oct

2000 X

Regulations on the Implementation of the Law on Foreign Capital

Enterprise

amended on 12 Apr

2001 X

Industrial Catalogue for Foreign Investment. effective 1 Apr 2002

Provisions on Guiding Foreign Investment Direction effective 1 Apr 2002 X
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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iv. Intellectual Property Rights Protection

Regulation Date Notified

to WTO

Copyright Law amended on 27 Oct

2001

X

Patent Law amended on 25 Aug

2000

X

Trademark Law amended on 27 Oct

2001

X

Implementing Rules of the Copyright Law amended on 15 Sep

2002

X

Implementing Rules of the Patent Law amended on 01 Feb

2003

X

Implementing Rules of the Trademark Law amended on 15 Sep

2002

X

Regulations on Protection of Computer Software amended on 01 Jan

2002

X

Regulations on Protection of New Varieties of Plants effective 01 Oct 1997 X

Regulations on Protection of Layout Designs of Integrated Circuits effective 01 Oct 2001 X

Rules for Implementing the Regulations on the Protection of LayoutDesigns of Integrated Circuits effective 01 Oct 2001 X

Regulations on Intellectual Property Rights Protection by the Customs effective 01 Mar 2004

after amendment

2. Committee participation

The submission of notifications by Members and reactions thereupon constitute a primary

platform of exchanges among Members in each WTO committee, and serve the purpose of

ensuring transparency in the multilateral trading system. All 12 Agreements listed in Annex 1A

of the WTO Agreement, as well as the GATT 1994, including the six Understandings

interpreting certain articles thereof, and the Agreements on Services and TRIPS contain

provisions on specific notification obligations and procedures. Members, on a one-time, regular
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 22

or periodic basis, are required to notify relevant committees of their trade-related laws and

regulations, new or amended, actions taken, measures maintained, responses to questionnaire or

checklists of issues, etc. Some notifications are mandatory, and some are of an ad hoc nature. In

its 1996 report, the Working Group on Notification Obligations and Procedures under the

Council for Trade in Goods categorized notification obligations as follows:

The Group observed that there were three types of notification

obligations and procedures in Annex 1A: (i) ad hoc notifications

which are specifically required when certain actions are taken by a

concerned Member; (ii) "one-time only" notifications, most of

which are required to provide information on the situations

existing at the entry into force of the WTO Agreement for a

Member, or within a specified period calculated from that date;

and (iii) the regular or periodic notification obligations (semiannual, annual, biennial, triennial). Of the 175 notification

obligations or procedure found in Annex 1A, twenty-six were

deemed to be of the regular or periodic type.10

Notification obligations can be burdensome, particularly for developing countries, as they

require consistent efforts and considerable resources on the part of the authorities responsible for

providing information and developing countries can experience great difficulty in obtaining

accurate data and information. In recent years, more attention has been given to the low

compliance rate of developing countries with WTO notification obligations and the need to step

up efforts in technical assistance to some developing country Members has been recognized.

Upon accession, aside from the colossal legislative work that China embarked on, China

was faced with an enormous task of fulfilling the basic WTO notification obligations as part of

 

10 Report of the Working Group on Notification Obligations and Procedures, G/L/112 (7 October 1996) at para.

13.
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Final Report, March 19, 2004 Page 23

its positive participation in WTO committee activities. The following briefly summarizes the

WTO notification obligations that are applicable to China pursuant to specific WTO agreements.

Agreement on Agriculture

1. Article 18.2 requires notification by Members with tariff and other quota

commitments recorded in Section I-B (or Section I-A) of Part I of their

Schedules for the products concerned in "Table MA:1" (the administration of

tariff quota) and "Table MA:2" (imports under tariff and other quota

commitments).

2. Article 18.2 requires notification by all Members of "Table DS:1" (domestic

support) annually. (Least-developed country Members may notify every

second year).

3. Article 18.2 requires notification by all Members of "Table ES:1" (export

subsidies) whether or not a base or annual commitment level is shown in

Section II of Part IV of their Schedules.

Agreement on Implementation of Article VI

of the GATT 1994 (Anti-dumping)

1. Article 16.4 requires notification of a semi-annual report on anti-dumping

actions taken within the preceding six months regardless of whether any such

actions have been taken.

2. Article 16.4 also requires Members to report without delay all preliminary or

final actions taken with respect to anti-dumping measures.

3. Article 18.5 requires the notification of laws, regulations and administrative

procedures on antidumping. A notification must be made even when a

Member does not maintain such laws/regulations.

Agreement on the Implementation of Article VI

of the GATT 1994 (Customs Valuation)

1. Article 22.1 requires the notification of laws and regulations or a

communication indicating that the legislation notified under the Tokyo Round

Agreement on Customs Valuation remains valid under the WTO Agreement

on Customs Valuation.

2. A response to the checklist of issues under G/VAL/5 is required.
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Final Report, March 19, 2004 Page 24

Agreement on Import Licensing Procedures

1. Article 7.3 requires a reply to the questionnaire on import licensing

procedures by September 30 of each year.

2. Articles 1.4(a)/8.2(b) require the notification of the names of publications in

which rules and information concerning import licensing procedures are

published, as well as the full text of the relevant laws and regulations.

Agreement on Rules of Origin

1. Article 5.1 requires notification of existing non-preferential rules of origin.

2. Paragraph 4 of Annex II requires notification of existing preferential rules of

origin.

Agreement on Safeguards

1. Article 12.6 requires the notification of laws, regulations and administrative

procedures concerning safeguards.

2. Article 12.1(a) requires the notification of the initiation of a safeguard

investigation.

3. Article 12.1(b) requires the notification of the findings of serious injury or

threat thereof caused by increased imports.

4. Article 12.1(c) requires the notification of the decisions to apply safeguard

measures.

5. Article 12.4 requires the notification of the application of provisional

measures.

Agreement on Sanitary and Phytosanitary Measures

1. Paragraph 5 of Annex B requires the notification of proposed SPS regulations

or changes to regulations, which are not the same as an international standard

and have a significant effect on trade.

2. Paragraph 6 of Annex B requires the notification of emergency measures.

(Annex B, paragraph 6 of the SPS Agreement).
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Agreement on Subsidies and Countervailing Measures

1. Article 25.1 requires the annual notifications on subsidies not later than June

30 of each year. Article 25.6 provides that where a Member considers that

there are no measures requiring such notification, a "nil" return is necessary.

2. Article 25.11 requires the semi-annual report of countervailing duty actions

taken regardless of whether any such actions have been taken.

3. Article 32.6 requires the notification of laws and regulations concerning

subsidies and countervailing measures. A notification must be made even

where a Member does not maintain such laws/regulations.

Agreement on Technical Barriers to Trade

1. Article 15.2 requires the notification of measures in existence or taken to

ensure the implementation and administration of this Agreement.

2. Notifications by standardizing bodies in Member countries whether to accept

the Code of Good Practices are required.

3. Article 2.9, 2.10, 5.6, and 5.7 require the notification of draft technical

regulations and conformity assessment procedures.

Agreement on Trade-Related Investment Measures

1. Article 5.1 requires the notification of trade-related investment measures

Members were applying that were not in conformity with the Agreement on a

"one-time" basis within 90 days of the date of entry into force of the WTO

Agreement.

2. Article 6.2 requires the notification of publications in which TRIMS may be

found.

Agreement on TRIPS

1. Responses to the checklist of issues on enforcement under IP/C/5 are required.

2. Article 63.2 requires the notification of laws and regulations related to

intellectual property rights protection.

3. Article 69 requires the notification of contact points for the purposes of

cooperating with each other with a view to eliminating international trade in

goods infringing intellectual property rights.
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Final Report, March 19, 2004 Page 26

Agreement on Textiles and Clothing

1. Article 6.1 requires the notifications indicating whether or not the Member

wishes to retain the right to use the transitional safeguard mechanism.

2. Notifications under Articles 2.6/2.7 (first integration stage), Articles

2.8(a)/2.11 (second integration stage) and Articles 2.8(b)/2.11 (third

integration stage) are required by Members which retain their right to use the

transitional safeguard mechanism under Article 6.1.

3. Article 3.1 requires the notifications by Members that maintain quantitative

restrictions on textile and clothing products, other than those under the MFA.

GATT 1994 Article XVII:4(a) and the Understanding on the

Interpretation of this Article (State Trading Enterprises)

1. New and full responses to the questionnaire on state trading are required

triennially. Where a Member considers that there are no activities requiring

such notification, a "nil" return is necessary. An updating notification

covering any changes are required in every of the intervening years.

Agreement on Preshipment Inspection

1. Article 5 requires the notification of laws and regulations concerning

preshipment inspection.

Decision on Notification Procedures for Quantitative Restrictions

1. Under G/L/59, complete notification of quantitative restrictions Members

maintain are required by January 31, 1996 and at two-yearly intervals

thereafter. Changes to the quantitative restrictions shall be notified as and

when these changes occur.

Agreement on Services (GATS)

1. Paragraph 3 of Article III requires the notification of any new (or any changes

to existing) laws, regulations or administrative guidelines which significantly

affect trade in services covered by specific commitments under this

Agreement.
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Final Report, March 19, 2004 Page 27

When China's compliance with the above notification obligations is compared with the

total number of Members who filed similar notifications in the relevant committees, it is evident

that China registered a reasonable record of making required notifications in the first two years

of its WTO membership. See Appendix 9. In many committees, the low level of compliance by

Members with notification obligations has been a major preoccupation. For example, at the

Committee on Import Licensing, as noted in its 2003 annual report, by October 2003, 27

members had not submitted any notification since joining the WTO under the Agreement on

Import Licensing which requires the mandatory notifications of laws and regulations, as well as

annual replies to the questionnaire. Nor have these Members informed the Secretariat of any

difficulties that would interfere with their ability to notify, or of any technical assistance needs to

improve their compliance.11 By contrast, and as would be expected from a major trading nation,

China has submitted most of the required notifications, both mandatory and ad hoc, to the

various committees.

Even so, China fell short in some respects. At regular committee meetings, while

recognizing significant efforts by China to fulfil the notification obligations, some Members also

noted problems associated with China’s notification practices, as summarized below:

Subsidies and Countervailing Measures

• China has failed to submit the subsidies notification pursuant to Article 25.1 of

the Agreement on SCM since accession, a mandatory notification required on an

annual basis. The United States voiced its concern over this issue at the

committee meeting held on May 8, 2003:

 

11 Report (2003) of the Committee on Import Licensing to the Council for Trade in Goods, G/L/652 (28 October
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Final Report, March 19, 2004 Page 28

The US delegate stated that his delegation would like China to

confirm that it would meet this year's deadline of 30 June for its

subsidy notification. The US delegate stated that China's failure to

participate in the notification process undermined the transparency

that Members had worked to develop and hampered the ability of

Members to confirm that China was complying with its obligations

under the Agreement.12

• Neither has China submitted the semi-annual report on countervailing duty action

taken during the second half of 2002 and the first half of 2003.13 Although China

has not, since accession, initiated any anti-subsidy investigation, a nil notification

is necessary pursuant to Article 25.11 of the Agreement on Subsidies and

Countervailing Measures.

Sanitary and Phytosanitary Measures

• China made 140 notifications of existing SPS measures upon accession and 42

notifications of new measures within the first two years of WTO membership.

However, as noted by Members (such as Canada), there were still certain

measures not notified. Among those that were notified, some notifications were

circulated very close to the date of entry into force, leaving insufficient time for

comment and for comments to be taken into consideration. Moreover, there was a

 2003) at para. 10.

12 Minutes of the Regular Meeting Held on 8 May 2003, Committee on Subsidies and Countervailing Measures,

G/SCM/M/46 (23 July 2003) at para. 10.

13 See Annex F of Report (2003) of the Committee on Subsidies and Countervailing Measures, G/L/655 (4

November 2003).
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 29

lack of feedback on comments made to the Chinese authorities on SPS

notifications.14

Technical Barriers to Trade

• China made 40 notifications on technical regulations within the first two years of

WTO Membership. Nevertheless, as pointed out by Members (such as the US),

there was still a lack of notification of all of China's proposals as required under

the Agreement, since not all of the ministries in China had notified their

proposals.15

3. Technical assistance program from the WTO and member

nations

(a) WTO

The provision of technical assistance and training to developing countries and economies

in transition has been a consistent mission of the WTO, and its predecessor the GATT.

Historically, they provided such assistance in order to improve developing countries'

understanding of the rights and obligations of WTO/GATT membership and to expand their

capacity to participate fully. WTO technical assistance is supported by the WTO's regular

budget as well as from individual member contributions for that purpose.

 

14 Summary of the Meeting Held on 7-8 November 2002, Committee on Sanitary and Phytosanitary Measures,

G/SPS/R/28 (5 February 2003) at para. 108.

15 Minutes of the Meeting of 7 November 2003, Committee on Technical Barriers to Trade, G/TBT/M/31 (9

December 2003) at para. 51.
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The technical assistance activities of the WTO cover broad areas and are provided in

various forms. The WTO describes its main technical assistance activities as follows:

Seminars: organized at a national, subregional or regional level.

Some seminars are specialized -- focusing on a narrowly defined

subject, e.g. anti-dumping, customs valuation, subsidies and

countervailing measures -- while others cover broader aspects of

the multilateral trading system, e.g. the functioning of the WTO

and Multilateral Trade Negotiations.

Workshops: generally focused on a particular area of trade policy,

they cover in addition to theoretical explanations, case studies and

simulation exercises.

Technical missions: designed to assist countries in drafting and

preparing legislation and regulations, and in meeting notification

requirements as well as to facilitate the understanding of specific

trade policy issues of particular interest to them.

Briefing sessions: generally held for Geneva-based delegations

and visiting officials to up-date them on recent developments in the

work programme carried out by the World Trade Organization.

Technical cooperation in electronic form: in order to facilitate

the dissemination of information on the WTO multilateral trading

system, computer-based interactive tools are being developed.16

The WTO also conducts training courses for government officials of developing and

least-developed countries. These courses cover different areas, such as trade policy, trade

negotiation skills, regionalism, agriculture, dispute settlement, etc. The WTO, however, does not

conduct training activities for private groups or individuals.

Various WTO agreements and decisions mandate that the WTO carry out technical

cooperation activities.17 As reported by the WTO, "the delivery of WTO technical assistance is

 

16 See Activities of WTO Technical Cooperation, http://www.wto.org/english/tratop_e/devel_e/teccop_e/

teccop_act_e.htm.
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designed to assist developing and least-developed countries and low-income countries in

transition to adjust to WTO rules and disciplines, implement obligations and exercise the rights

of membership, including drawing on the benefits of an open, rules-based multilateral trading

system."18 The Doha Ministerial Declaration clarified and further enhanced the mandate to

provide technical assistance.19 Following the Doha Ministerial meeting in November 2001, the

WTO's General Council "approved a revised budget proposal encompassing, inter alia, the

doubling of training capacities over a transitional year allowing it, in principle, to be fully

operational in 2003."20

At the Doha Ministerial Conference, trade ministers recognized that technical

cooperation and capacity building were "core elements of the development dimension of the

multilateral trading system."21 They also acknowledged that it was important to have coherence

and coordination of technical assistance and capacity building activities at three levels: the

national level in beneficiary countries, the international level, and the inter-agency level.

Because the magnitude of the proposed undertaking required the pooling of resources, "the WTO

and OECD Secretariats, along with a number of interested delegations from TRTA/CB [i.e.,

trade-related technical assistance and capacity building] providers joined their efforts to create

 17 See Note by the Secretariat: WTO Measures Relating To Developing Country Members, WT/COMTD/W/10 (8

November 1995); available at http://www.wto.org/english/tratop_e/devel_e/teccop_e/w10_e.doc.

18 See http://www.wto.org/english/tratop_e/devel_e/teccop_e/tct_e.htm.

19 For example, paragraph 41 of the Doha Ministerial Declaration sets out specific technical assistance and

capacity building commitments on various issues such as competition policy, trade facilitation, WTO

accession, and intellectual property rights. Doha WTO Ministerial Declaration, WT/MIN(01)/DEC/1 (20

November 2001) at para. 41.

20 WT/COMTD/W/89/Rev.1 at 1 (14 January 2002).

21 Second Joint WTO/OECD Report on Trade-Related Technical Assistance and Capacity Building (TRTA/CB),

at 2 (July 2003) ("Second Joint WTO/OECD Report on TRTA/CB"). This report is available at the WTO's

website: http://tcbdb.wto.org/publish/Report%202003%20final%20english%20without%20signature.pdf.
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the Doha Development Agenda Trade Capacity Building Database (TCBDB)."22 This database

was established with the purpose of providing information on trade-related technical assistance

and capacity building projects. In May 2002 and March 2003, the Director-General of the WTO

and the Secretary-General of the OECD sent out requests to countries and multilateral/regional

agencies for information about technical assistance projects. Based on the data reported by these

entities, the TCBDB collects detailed information concerning more than 8000 activities and

projects, both national and regional, provided by "39 bilateral donor countries and multilateral

agencies" over the 2001 to early 2003 period.23

For purposes of the TCBDB database, TRTA/CB activities are defined as those intended

to enhance the ability of the recipient country to:

• formulate and implement a trade development strategy and

create an enabling environment for increasing the volume and

value-added of exports, diversifying export products and

markets and increasing foreign investment to generate jobs and

trade; or

• stimulate trade by domestic firms and encourage

investment in trade-oriented industries; or

 

22 Second Joint WTO/OECD Report on TRTA/CB, at 2. The TCBDB is accessible at http://tcbdb.wto.org.

23 Second Joint WTO/OECD Report on TRTA/CB, at 1. Data were received from the following 23 bilateral donor

countries: Australia, Belgium, Canada, Denmark, the European Commission, Finland, France, Germany,

Ireland, Italy, Japan, the Netherlands, New Zealand, Norway (partial for 2002), Portugal, Spain, Sweden,

Switzerland, the United Kingdom, the United States, the Czech Republic, Iceland, and Thailand. Id. at 4, n.7.

The following 16 multilateral agencies provided data: APEC (Asia-Pacific Economic Co-operation), AsDB

(Asian Development Bank), EBRD (European Bank for Reconstruction and Development), ESCAP (United

Nations Economic and Social Commission for Asia and the Pacific), ESCWA (United Nations Economic and

Social Commission for West Asia), FAO (Food and Agriculture Organisation of the United Nations), IMF

(International Monetary Fund), IsDB (Islamic Development Bank), ITC (International Trade Centre

UNCTAD/WTO), OECD (Organisation for Economic Co-operation and Development), UNCTAD (United

Nations Conference on Trade and Development), UNDP (United Nations Development Programme), UNECE

(United Nations Economic Commission for Europe), UNIDO (United Nations Industrial Development

Organisation), the World Bank's IDA (International Development Agency), and WTO (World Trade

Organization). Id. at 4, n.8.
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

Final Report, March 19, 2004 Page 33

• participate in and benefit from the institutions, negotiations

and processes that shape national trade policy and the rules and

practices of international commerce.24

The TRTA/CB activities are further classified under two main categories --"trade policy

and regulations" and "trade development" -- which are described as follows:

• Trade policy and regulations covers support to aid

recipients’ effective participation in multilateral trade

negotiations, analysis and implementation of multilateral trade

agreements, trade policy mainstreaming and technical

standards, trade facilitation including tariff structures and

customs regimes, support to regional trade arrangements and

human resources development in trade

• Trade development covers business development and

activities aimed at improving the business climate, access to trade

finance, and trade promotion in the productive sectors (agriculture,

forestry, fishing, industry, mining, tourism, services), including at

the institutional and enterprise level.25

The WTO and OECD assert that data reported in the TCBDB "can be considered as

representative, as almost all the main TRTA/CB providers participate in the Trade Capacity

Building Database."26

As a self-selected developing country, China is eligible for technical assistance from the

WTO. Both before and since its accession to the WTO, China has been the recipient of

substantial technical assistance from the WTO, as well as from other multilateral organizations

and from individual countries. The TCBDB database includes extensive information about

trade-related technical assistance and capacity building projects that were, or are, focused on

 

24 Second Joint WTO/OECD Report on TRTA/CB, at 2-3.

25 Second Joint WTO/OECD Report on TRTA/CB, at 3.

26 Second Joint WTO/OECD Report on TRTA/CB, at 4.
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 34

China as a beneficiary country. The TCBDB shows that, during the 2001 to early 2003 period,

China was a beneficiary of TRTA/CB activities and projects provided by the following 22 donor

countries and multilateral agencies:

Multilateral Agencies

• APEC (Asia-Pacific Economic Co-operation)

• AsDB (Asian Development Bank)

• ESCAP (UN Economic and Social Commission for Asia and the Pacific)

• IDA (International Development Agency)

• ITC (International Trade Centre UNCTAD/WTO)

• OECD (Organisation for Economic Co-operation and Development)

• UNDP (United Nations Development Programme)

• UNIDO (UN Industrial Development Organisation)

• WTO (World Trade Organization)

Donor Countries

• Australia

• Belgium

• Canada

• European Commission

• France

• Germany

• Italy

• Japan

• New Zealand

• Norway

• Sweden

• Switzerland

• United States

Tables listing all the TRTA/CB activities and projects reported in the TCBDB for which

China was a beneficiary are attached as Appendix 10. The following table, identifying those

TRTA/CB activities and projects provided by the WTO to China, illustrates the degree to which

China has been the beneficiary of extensive and broadly-ranged technical and capacity building

assistance. As shown by the table, WTO technical assistance to China has covered a broad range

of topics, including SPS (sanitary and phyto-sanitary measures), TBT (technical barriers to

trade), trade facilitation, customs valuation, dispute settlement, TRIPS (trade-related intellectual

property rights), agriculture. services, industrial tariff negotiations, rules (safeguards,

antidumping, and subsidies and countervailing measures), trade and the environment, trade and

competition, trade and investment, government procurement, and trade-related training.
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

Final Report, March 19, 2004 Page 35

WORLD TRADE ORGANIZATION (WTO)

Technical and Capacity Building Assistance Provided to China: 2001 -- Early 2003

Trade Category WTO Project / Activity Amount

($ '000)

Start Date -

End Date

Trade Mainstreaming

in PRSPs/dev. plans*

Symposium: APEC Informal Group on Implementation of WTO Obligations

(Dalian): a presentation on the role that the WTO could play on capacity

building in APEC developing countries

4.68 18/08/2001 -

18/08/2001

Trade Mainstreaming

in PRSPs/dev. plans

National seminar: Regional Economic Cooperation and China 3.04 19/06/2001 -

20/06/2001

Trade Mainstreaming

in PRSPs/dev. plans

Conference: Development of Western China 13/06/2001 -

15/06/2001

Trade Mainstreaming

in PRSPs/dev. plans

National Conference: The entry of China into the WTO: economical, and

ecological challenges and opportunities

0.20 20/05/2002 -

21/05/2002

Trade Mainstreaming

in PRSPs/dev. plans

Symposium: International Symposium on WTO and Legal Services 18/09/2002 -

20/09/2002

Trade Mainstreaming

in PRSPs/dev. plans

National seminar: WTO Negotiations: new WTO/ADB/MOFTEC/Beijing

University Training Programme. 2002 Beijing International Forum

4.18 11/12/2002 -

20/12/2002

Trade Mainstreaming

in PRSPs/dev. plans

Conference: Shanghai WTO Affairs Consultations Center Forum 25/11/2001 -

25/11/2001

Trade Mainstreaming

in PRSPs/dev. plans

Conference: Shanghai WTO Affairs Consultations Center Forum 24/11/2001 -

24/11/2001

SPS and TBT Regional workshop: Codex Committee on Food Export and Import

Inspection and Certification Systems (CCFICS).

0.54 25/02/2002 -

01/03/2002

SPS and TBT Regional seminar: WTO/ESCAP/ASEAN Regional Seminar on TBT for

South and South-East Asian economies.

4.05 29/10/2002 -

31/10/2002

SPS and TBT National seminar: SPS for Chinese officials at the Ministry of Agriculture:

Rules and Procedures SPS; Dispute settlement and SPS; Accession and SPS;

Relation SPS/TBT.

16/05/2001 -

17/05/2001

SPS and TBT National seminar: SPS for 16 Officials from the State General Administration

for Quality supervision, inspection and quarantine.

16/11/2001 -

21/11/2001

Trade Facilitation Regional workshop: Market Access and trade facilitation. To lecture how to

use two of the analytical tools at disposal at the WTO , the Integrated Data

Base and the Consolidated Tariff Schedules.

0.52 19/06/2001 -

21/06/2001

Trade Facilitation Regional workshop: Trade Facilitation for Asia/ Pacific. 4.66 27/05/2003 -

29/05/2003

Customs Valuation Conference: 7th APEC Customs-Business Dialogue: "A New Round of WTO

Negotiations - Implications of WTO on Customs Facilitation"

13/08/2001 -

14/08/2001

Accession National seminar: Joint project of the World Bank and the Development

Centre of State Council and seminar on the WTO Accession, Policy Reform

and Corporate Strategies for Globalization, Poverty Reduction in China.

26/10/2001 -

27/10/2001

Accession Colloquium: Project on WTO Accession, Policy Reform and Poverty

Reduction in China.

06/05/2001 -

07/05/2001

Accession Symposium: Advisory Services to the reform of Commercial Laws in China,

Legal advice to the Financial and Economic Committee of the National

People's Congress, Symposium on the need for new legislation after China's

accession to the WTO.

23/04/2001 -

26/04/2001

Dispute Settlement National seminar: Dispute Settlement Procedures and Practices. 7.95 02/07/2002 -

05/07/2002

Dispute Settlement Regional workshop: Dispute Settlement for 16 Asian Developing Economies. 17/07/2001 -

20/07/2001

Dispute Settlement Regional seminar: Second WTO/ESCAP Dispute Settlement Procedures and

Practices and DSU Negotiations for Asian Countries (II).

3.79 04/06/2002 -

07/06/2002

Dispute Settlement Regional workshop: First WTO/ESCAP Dispute Settlement Procedures and

Practices and DSU Negotiations for Asian Countries (I).

10/04/2002 -

12/04/2002

Dispute Settlement Regional workshop: Third WTO/ESCAP Dispute Settlement Procedures and

Practices, and DSU Negotiations for Asia.

3.24 10/03/2003 -

13/03/2003
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 36

Trade Category WTO Project / Activity Amount

($ '000)

Start Date -

End Date

Dispute Settlement National training course: WTO Dispute Settlement Procedures and Practices. 0.12 24/09/2001 -

28/09/2001

Dispute Settlement Specialized Course: 5th Specialized Course on Dispute Settlement (English). 30/06/2003 -

04/07/2003

Dispute Settlement 2nd Dispute Settlement Course: Course on Dispute Settlement Rules and

Procedures.

08/04/2002 -

12/04/2002

Dispute Settlement National seminar: Dispute Settlement for four Vice-Ministers (VicePresidents and Presidents of Chinese Courts, including the Supreme Court).

11/10/2001 -

11/10/2001

Trade-Related

Intellectual Property

Rights

Technical mission: Meeting on IPR Legislation of China and the WTO

TRIPS Agreement

08/05/2002 -

10/05/2002

Trade-Related

Intellectual Property

Rights

Conference: WHO seminar on "Health Implications of China's Accession to

the WTO"

18.55 28/01/2002 -

01/02/2002

Agriculture Regional workshop: The Agreement on Agriculture and on-going

negotiations for South Asia: "WTO/UNESCAP Regional Training Workshop

on Multilateral Negotiations on Agriculture in the WTO" (merged with

workshop for East Asia).

2.39 21/07/2003 -

23/07/2003

Agriculture National seminar: Negotiations on Agriculture 1.07 22/04/2002 -

26/04/2002

Agriculture Symposium: FAO Intergovernmental Group on Citrus symposium: discuss

SPS-related issues

3.69 14/05/2001 -

15/05/2001

Services National seminar: International Development Trends of Services Sectors:

Engineering, Culture

0.32 29/10/2001 -

29/10/2001

Services Conference: "Local Vision, Global Mission" Second China

Telecommunications Roundtable

0.46 20/09/2001 -

21/09/2001

Services Symposium: Legal Perspective of Cross Border Movement of Natural

Persons

0.13 27/03/2002 -

28/03/2002

Services National workshop: The GATS and on-going negotiations including the

scheduling of commitments

6.12 26/08/2003 -

28/08/2003

Services National seminar: GATS and cultural and educational services 7.58 27/05/2001 -

31/05/2001

Services Regional workshop: GATS 10/09/2001 -

12/09/2001

Services National seminar: Trade in Services and GATS 10/12/2001 -

14/12/2001

Services National seminar: Trade in Services: Expert services in the General Service

Trade Convention, Law regulations about expert service, The trend of

legislation and administrative regulation about expert service in other

countries.

19/11/2001 -

19/11/2001

Services Workshop: Scheduling of Commitments under GATS. 4.74 27/11/2002 -

29/11/2002

Tariff Negotiations -

Non-Agricultural

Market Access

National workshop: WTO Notification obligations for China 09/09/2003 -

09/09/2003

Tariff Negotiations -

Non-Agricultural

Market Access

Regional workshop: Implementation of the Textiles and Clothing Agreement

for selected South Asian and new Asian textile exporting countries.

1.87 09/10/2003 -

10/10/2003

Tariff Negotiations -

Non-Agricultural

Market Access

Conference: China International Cotton Conference: Textile and Clothing

issues and the implementation of the Agreement on Textiles and Clothing

4.85 26/06/2001 -

29/06/2001

Tariff Negotiations -

Non-Agricultural

Market Access

Symposium: WTO Study Tour by members of the National Copyright

Association in China (NCAC) - Presentations on Accession, Dispute

Settlement, Intellectual Property, Copyright, Enforcement, Notifications and

Reviews.

19/07/2001 -

19/07/2001
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 37

Trade Category WTO Project / Activity Amount

($ '000)

Start Date -

End Date

Tariff Negotiations -

Non-Agricultural

Market Access

National seminar: Agriculture, TBT, SPS, and special economic zones 13/12/2001 -

15/12/2001

Tariff Negotiations -

Non-Agricultural

Market Access

National seminar: Dispute Settlement, WTO Legal aspects, Intellectual

Property Rights, and implementation of WTO Agreements - Shenzen

07/12/2001 -

07/12/2001

Tariff Negotiations -

Non-Agricultural

Market Access

National seminar: The Multilateral Trading System and WTO Agreements

(Kunming)

03/12/2001 -

05/12/2001

Tariff Negotiations -

Non-Agricultural

Market Access

National training course: The Multilateral Trading System and WTO

Agreements (Qingdao)

06/12/2001 -

07/12/2001

Tariff Negotiations -

Non-Agricultural

Market Access

Conference: China 2002 Annual Conference of the Boao Forum for Asia 11/04/2002 -

14/04/2002

Tariff Negotiations -

Non-Agricultural

Market Access

Symposium/meeting: 35th Annual Meeting of the Board of Governors of the

Asian Development Bank and signature of the MOU between the ADB and

the WTO; Consultations with MOFTEC

9.40 09/05/2002 -

13/05/2002

Tariff Negotiations -

Non-Agricultural

Market Access

National Symposium: Shantou University National Symposium on the WTO:

Rules, Implementation, Impact on the Chinese Economy.

04/02/2002 -

05/02/2002

Tariff Negotiations -

Non-Agricultural

Market Access

Regional workshop: Presentation of the Integrated Data Base (IDB) and

related topics; Presentation of the Consolidated Tariff Schedule (CTS)

project; Workshop on the IDB dissemination tools.

0.34 16/02/2001 -

19/02/2001

Tariff Negotiations -

Non-Agricultural

Market Access

Technical mission: Legal Advice on "Uniform Implementation of WTO

Agreements on the Entire Customs Territory".

19/04/2001 -

20/04/2001

Tariff Negotiations -

Non-Agricultural

Market Access

Regional workshop: Market Access Negotiations and IDB/CTS databases for

East Asia and the Pacific (14-17 July) - National consultations (18 July).

5.90 14/07/2003 -

18/07/2003

Tariff Negotiations -

Non-Agricultural

Market Access

National seminar: To train 20 middle-level officials from various Chinese

governmental organizations on WTO Agreements.

25/06/2001 -

29/06/2001

Rules Regional workshop: Anti-dumping for East Asian economies. 9.89 02/12/2002 -

05/12/2002

Rules National training course: WTO Agreements with special reference to the

SCM Agreement (Ji Lin).

06/08/2001 -

10/08/2001

Rules National seminar: WTO Rules (Anti-Dumping, Safeguards, Subsidies and

Countervailing Measures).

24/09/2002 -

25/09/2002

Rules Regional workshop: Injury Investigation and Determination in AntiDumping.

3.49 10/12/2001 -

12/12/2001

Rules Regional workshop: Subsidy disciplines for selected Asian countries. 18/11/2003 -

20/11/2003

Rules National seminar: Briefing Session on WTO Agreements for Vice Minister

Long Yong Tu: 1. Anti-Dumping, 2. WTO basic rules of transparency and

MFN exemptions, 3. Domestic preferential arrangements within a country, 4.

Free-Trade areas.

20/12/2001 -

20/12/2001

Rules National training course: Training Session on the practice of EU Antidumping and Anti-subsidy policy for 22 Officials from the State Economic

and Trade Commission of China.

28/09/2001 -

28/09/2001

Negotiation Training Regional training course: WTO, UNESCAP, MOFCOM, PKU -- Advanced

Course for Asian and Pacific Senior Government Officials on the Doha

Development Agenda Negotiations.

7.96 27/10/2003 -

01/11/2003

Negotiation Training Regional workshop: Trade Negotiations for Asian economies. 5.33 17/12/2002 -

20/12/2002
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 38

Trade Category WTO Project / Activity Amount

($ '000)

Start Date -

End Date

Negotiation Training Regional workshop: Trade Negotiations Skills for selected Asian and Pacific

Countries.

3.27 24/03/2003 -

28/03/2003

Negotiation Training Specialized Course: 2nd Specialized Course on Trade Negotiations (English). 16/06/2003 -

27/06/2003

Trade and

Environment

National seminar: Trade and Environment 20/11/2002 -

21/11/2002

Trade and

Environment

Regional seminar: Trade and Environment for Least-Developed and

Developing Asian Countries.

3.07 27/03/2001 -

31/03/2001

Trade and

Environment

Regional seminar: Trade and Environment for Asian economies. 5.48 13/05/2002 -

15/05/2002

Trade and Competition National workshop: Singapore Issues: Competition Policy 6.22 30/07/2002 -

31/07/2002

Trade and Competition Regional seminar: Trade and competition policy in the WTO and sessions on

specific enforcement policy issues in developing economies.

0.08 30/07/2001 -

01/08/2001

Trade and Competition Regional workshop: Trade and Competition Policy for Asia and the Pacific. 7.30 21/01/2003 -

23/01/2003

Trade and Investment Regional seminar: APEC TRIMs seminar (Xiamen): An introduction to

TRIMs Agreement and the trend of future WTO investment discussions -

Discussions in the WTO on TRIMs implementation and meeting the

development, financial and trade needs of developing economies.

09/09/2001 -

10/09/2001

Trade and Investment National workshop: Singapore Issues: Trade and Investment 11.00 13/05/2002 -

14/05/2002

Trade and Investment Regional Seminar: Singapore/WTO/UNCTAD Joint Regional Training

Course: Trade and Investment.

06/05/2002 -

08/05/2002

Trade and Investment Regional seminar: Trade and Investment Policy seminar at Senior Officials

level.

4.76 27/06/2002 -

27/06/2002

Transparency and

Government

Procurement

Regional workshop: Workshop on Accession to the Agreement on

Government Procurement.

6.47 27/05/2002 -

28/05/2002

Trade-Related

Training Education

Regional workshop: WTO/UNITAR workshop on the Status of the Doha

Development Agenda Negotiations, Agriculture, S&D, Implementation

issues, Services, and Dispute Settlement.

0.30 29/06/2003 -

03/07/2003

Trade-Related

Training Education

Regional workshop: Training of Trainers for Asia and the Pacific. 3.11 12/05/2003 -

30/05/2003

Trade-Related

Training Education

Regional training course: 3rd WTO/ESCAP Short Trade Policy Course for

ESCAP Members.

18/03/2002 -

29/03/2002

Trade-Related

Training Education

Regional training course: 4th WTO/ESCAP Short Trade Policy Course for

ESCAP Members.

0.64 18/11/2002 -

29/11/2002

Trade-Related

Training Education

Regional training course: IDLI Trade Law Course for Developing countries

in Asia and the Pacific.

2.27 21/10/2002 -

08/11/2002

Trade-Related

Training Education

Technical mission: Establishment of a WTO Reference Centre. Training in

the use of WTO information resources (web-sites and CD-ROMs)

07/04/2001 -

08/04/2001

Trade-Related

Training Education

Conference: Uses of WTO Reference Centres (Haikou) 05/06/2001 -

06/06/2001

Trade-Related

Training Education

Conference: Uses of WTO Reference Centres (Shanghai) 07/06/2001 -

08/06/2001

Trade-Related

Training Education

Technical mission: Establishment of a WTO Reference Centre at the

Shenzhen Academy of Standardization and Coding Technology. Training in

the use of WTO information resources (web-sites and CD-ROMs)

05/04/2001 -

06/04/2001

Trade-Related

Training Education

Technical mission: Establishment of WTO Reference Centre for the Ministry

of Foreign Trade and Economic Cooperation

3.35 11/03/2002 -

14/03/2002

Trade-Related

Training Education

Regional training course: Second WTO / ESCAP Trade Policy Course on the

WTO and the Multilateral Trading System for Asian developing economies.

1.62 21/05/2001 -

01/06/2001

Trade-Related

Training Education

Regional training course: Fifth WTO/ESCAP Regional Training Course on

WTO Agreements and the Doha Development Agenda.

3.50 18/02/2003 -

28/02/2003
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

Final Report, March 19, 2004 Page 39

Trade Category WTO Project / Activity Amount

($ '000)

Start Date -

End Date

Trade-Related

Training Education

Regular Trade Policy Course: 25th WTO Trade Policy Course (English). 28/04/2003 -

18/07/2003

Trade-Related

Training Education

Regional workshop: University Teaching Programme. 06/10/2003 -

10/10/2003

Trade-Related

Training Education

18th Trade Policy Course: 18th Trade Policy Course on WTO Matters for

English-Speaking Countries.

17/09/2001 -

30/11/2001

Trade-Related

Training Education

21st Trade Policy Course: 21st Trade Policy Course on WTO Matters for

English-Speaking Countries.

16/09/2002 -

06/12/2002

Trade-Related

Training Education

Workshop: Training of Trainers: Launching Conference. 0.34 20/03/2003 -

20/03/2003

* "PRSPs/dev. plans" refers to "poverty reduction strategy papers" and "development plans."

Source: Doha Development Agenda Trade-Related Technical Assistance and Capacity Building Database (TCBDB); available at

http://tcbdb.wto.org/index.asp. The above information is collected and compiled from member-country, country providers and

agency providers as well as from the WTO's own sources.

(b) United States

For at least a decade before China's accession to the WTO, the United States had an

active program of technical assistance for China, where such assistance was sought, in various

areas (such as the enforcement of intellectual property rights) and involving various US agencies.

Before China's accession, the US provided technical assistance through educational programs

sponsored by the commercial sections, economic sections, agricultural sections, and public

affairs sections (PAS) of the US Embassy and Consulate. These programs included trips to

China by WTO-related experts to review issues such as standards and certification, information

technology, and IPR enforcement; visits to the United States by Chinese officials, journalists,

and academics; grants for rule of law programs; and donations of legal texts.27

Following China's accession, the United States increased its focus on providing technical

assistance to China in order to assist China in fulfilling its WTO commitments. In 2001, the US

Government surveyed its programs and activities that promote trade-related capacity building in
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

Final Report, March 19, 2004 Page 40

developing countries and transition economies around the world. The survey was sent to all

major federal government departments and agencies and nearly 30 US departments and agencies

reported that they provided trade capacity building assistance, including the following:

3⁄4 U.S. Department of Agriculture

-- Agricultural Marketing Service

-- Agricultural Research Service

-- Animal and Plant Health Inspection Service

-- Cooperative Research, Education, and Extension Service

-- Economic Research Service

-- Food Safety and Inspection Service

-- Foreign Agriculture Service

-- Forestry Service

3⁄4 U.S. Department of Commerce

-- Patent and Trademark Office

-- Commercial Law Development Program

-- National Institute of Standards and Technology

3⁄4 U.S. Department of Energy

3⁄4 U.S. Department of Justice

3⁄4 U.S. Department of Labor

3⁄4 U.S. Department of State

3⁄4 U.S. Department of Transportation

3⁄4 U.S. Department of Treasury

3⁄4 U.S. Customs Service

3⁄4 U.S. Agency for International Development (USAID)

-- Overseas Field Missions

-- Regional Bureaus and Central Program Offices

3⁄4 U.S. Trade and Development Agency (USTDA)

3⁄4 Environmental Protection Agency

3⁄4 Export Import Bank

3⁄4 Federal Trade Commission

3⁄4 Office of the U.S. Trade Representative

3⁄4 Overseas Private Investment Corporation

3⁄4 Peace Corps

3⁄4 Small Business Administration28

 27 Brian L. Goldstein, Stephen J. Anderson, Foreign Contributions to China's WTO Capacity Building, THE

CHINA BUSINESS REVIEW (January -February 2002), available at http://www.chinabusinessreview.com/0201/

goldstein.html.
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 41

As a result of the government's initial survey in 2001 of trade capacity building activities

and funding levels, with subsequent surveys in 2002 and 2003, a database was generated. This

database is named the Trade Capacity Building (TCB) Database and is maintained by the U.S.

Agency for International Development (USAID).29

The government survey showed that, over fiscal years 1999 through 2001, the United

States expended about US$ 1.3 billion on trade capacity building activities.30 Subsequent

updated surveys through fiscal year 2003 show that the US Government spent US$ 752 million

in 2003 and US$ 638 million in 2002. Thus, from 1999 to 2003, the US effectively doubled the

amount it spent on trade-related technical assistance and capacity building, and the cumulative

amount expended on trade capacity building from 1999 through 2003 totaled US$ 2.8 billion.

The United States is now the largest single country donor of trade capacity building assistance.31

U.S. Trade Capacity Building Assistance

1999-2003 (in US $)

1999 2000 2001 2002 2003

369,139,107 504,459,705 598,749,112 637,835,149 751,710,945

Source: USAID & USTR, U.S. Contributions to Trade Capacity Building: Improving Lives

Through Trade & Aid (September 2003) at 16 (Annex).

The types of activities that were the subject of the US Government's survey included

assistance to countries "to become aware of, accede to, and participate in the World Trade

 28 See US Agency for International Development, United States Government Initiatives to Build Trade Capacity

in Developing and Transition Countries (Main Report, October 2001) at 52.

29 The USAID TCB database is accessible at http://qesdb.cdie.org/tcb/index.html.

30 See US Agency for International Development, United States Government Initiatives to Build Trade Capacity

in Developing and Transition Countries (Main Report, October 2001) at 3-4. The reported total was

comprised of US$ 327 million in fiscal year 1999, US$ 457 million in fiscal year 2000, and US$ 556 million in

FY 2001. See id.

31 US Agency for International Development & US Trade Representative, U.S. Contributions to Trade Capacity

Building: Improving Lives Through Trade & Aid (September 2003) at 2.
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

Final Report, March 19, 2004 Page 42

Organization (WTO) and the global trading system." and assistance "to build the physical,

human, and institutional capacity" that allow developing countries "to participate in and benefit

more broadly from rules-based trade."32 In particular, the following categories describe in detail

the types of trade capacity building assistance provided by the US Government.

WTO Awareness and Accession – To provide a basic

understanding of the WTO Agreements, helping accession

candidates to identify changes to laws, regulations, policies, and

procedures necessary to complete negotiations on the terms of

WTO membership.

WTO Agreements – To support countries’ efforts towards

compliance and implementation, including institution building so

that developing and transition countries may reap the benefits of

membership.

Trade Facilitation – To lower the costs of engaging in

international trade, assistance to business support agencies and

market development services, private business organizations,

information services, and technology transfer.

Human Resources and Labor Standards – To help workers

participate in the gains from trade and protect their rights in trade

related sectors, support for workforce skills development, worker

rights and labor standards, elimination of child labor exploitation

and gender bias.

Financial Sector Development – To help make financial systems

responsive to the needs of trade, reforms in banking and securities

markets and implementation of laws and regulations that protect

and promote trade-related investment.

Trade-Related Infrastructure Development – To build the

physical capacity to conduct international commerce, support for

trade-related telecommunications, marine ports, airports, and

related facilities.

 

32 See US Agency for International Development, United States Government Initiatives to Build Trade Capacity

in Developing and Transition Countries (Main Report, October 2001) at 4.
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

Final Report, March 19, 2004 Page 43

Environment – To assure that trade is environmentally neutral or

positive, efforts to improve environmental regulations and

standards, as well as to promote transfer of environmental

technology for sustainable development.

Competition Policy – To assure that participation in international

trade is conducted on an equal footing and benefits consumers,

support for developing and promoting competition, including

strengthening antitrust laws and eliminating local monopolies.

Agricultural Development – To extend the benefits of trade to

rural sectors, support for trade-related aspects of agriculture

technology development and agribusiness.

Services – To help developing and transition countries engage in

international services trade, support for the services sectors in

those countries.

Governance and Inter-Agency Coordination – To make

government trade programs more accountable, trade policies and

regulations more transparent, and to improve planning and

communications among government agencies working in trade

policy formulation and implementation.

With respect to technical and trade capacity building assistance provided to China in

particular, the TCB database reports that the US Government expenditures increased from US$

825 thousand in 1999 to US$ 1.7 million in 2003.

US Government Trade Capacity Building Assistance to China (P.R.C.)

(FY 1999 -- FY 2003) (US $)

TCB Categories 1999 2000 2001 2002 2003*

WTO Accession . 1,000...

WTO Agreements (Sum of) . . . 64,723 94,200

Agreement on SPS . . . 2,000 9,200

Agreement on TBT . . . . 85,000

Agreement on TRIPs . . . 62,723 .

Trade Facilitation . . . 588,305 585,250

Customs Operation &

Administration .... 585,250

E-Commerce & IT . . . 585,605 .
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

Final Report, March 19, 2004 Page 44

Business Services & Training . . . 2,700 .

Physical Infrastructure

Development . . 711,000 1,597,414 272,660

Environmental Trade & Standards 100,000 . 170,000 150,300 156,000

Trade-Related Agriculture 725,000 . 725,000 550,000 90,240

Tourism Sector Development . . . . 156,000

Other Services Development . . 187,000 . 376,320

TOTAL 825,000 1,000 1,793,000 2,950,742 1,730,670 *

 The data for 2003 includes data received up to July 31, 2003.

Source: USAID Trade Capacity Building Database; http://qesdb.cdie.org/tcb/index.html.

The USAID database also contains tables describing activities comprising US capacity

building assistance to China in fiscal years 2002 and 2003. These descriptive tables are attached

hereto as Appendix 11. They list the following capacity building activity titles, which shows the

varied range of areas where assistance has been provided to China:

FY 2002: Inland Waterways; Sinopec E-Procurement System; CNS/ATM Master Plan;

Agricultural Biotechnology Training Program; Aviation Safety Academy; ECommerce Policy; Biotech Patenting Speech; CITIES Training; Enforcement

provisions of TRIPS & Internet Piracy - video conferences with Chinese judges

and the Shanghai Intellectual Property Bureau; Industrial Eco-efficiency;

Seminars & Meetings on IPR; TA for International Food Safety; USTR Bilateral

Meetings.33

FY 2003: Bioconversion/Composting; China Cochran Fellowships; China Fisheries &

Seafood Expo; Customs Training Program; Seminar on Medical Device Post

Market Surveillance and Auditing; Shanghai Power Reliability; Southwestern

China Aviation Security; Standards in Trade Workshop; U.S.-China

Biotechnology Cooperation.34

Moreover, as reviewed above, the WTO and OECD have developed the comprehensive

Doha Development Agenda Trade Capacity Building Database to collect global information

about trade-related technical and capacity building projects and activities provided by countries

 

33 See http://qesdb.cdie.org/tcb/pdf/CHINAFY02.pdf.

34 See http://qesdb.cdie.org/tcb/pdf/CHINAFY03.pdf.
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

Final Report, March 19, 2004 Page 45

and multilateral organizations. The US Government submitted information to the WTO/OECD

database. The following table identifies assistance provided to China by the United States as

reported by the US to the WTO/OECD database.

UNITED STATES

Technical and Capacity Building Assistance Provided to China: 2001 -- Early 2003

Trade Policy and Regulations

Trade Category US Project / Activity Amount

($ '000)

Start Date -

End Date

SPS and TBT TA for International Food Safety: Sanitary & Phyto-Sanitary Measures -

In March 2002, the U.S. Food & Drug Administration’s (FDA) Center for

Food Safety and Applied Nutrition provided a one week training session

at FDA on the US food regulatory system for a visiting WHO Fellow

from the Ministry of Public Health in China. The program focused on the

roles and responsibilities of U.S. food safety agencies, FDA's approaches

for regulations of food additives, control of microbial pathogens,

transparency, consumer education, etc., and how the US food safety

system and programs are operated within the context of WTO SPS. FDA

has a long history of working with foreign government organizations to

strengthen the scientific, technical or regulatory expertise in other

countries. These activities have usually been initiated by foreign

governments, but they have also been initiated by FDA to respond to

particular issues. FDA's intent in these activities has been to strengthen

the overall regulatory and enforcement infrastructure in these countries in

order to enhance public health worldwide and to help ensure the viability

of the regulatory systems that govern and oversee FDA-regulated

products produced in foreign countries and exported to the United States.

The activities have the net effect of enhancing the developing countries'

abilities to meet U.S. food safety standards, thereby improving market

access opportunities in the United States for their food and agricultural

products.

2.00 30/09/2002 -

Trade-Related

Intellectual

Property Rights

Biotech Patenting Speech: Agreement on TRIPS - Biotech patenting

speech. . (June, 2002)

6.00 30/09/2002 -

Trade-Related

Intellectual

Property Rights

Video conferences w/ Chinese judges & Shanghai Intellectual Property

Bureau: Agreement on TRIPS - Enforcement provisions of TRIPS &

Internet Piracy - video conferences with Chinese judges and the Shanghai

Intellectual Property Bureau. . (May, 2002)

7.00 30/09/2002 -

Trade-Related

Intellectual

Property Rights

Seminars & Meetings on IPR: Agreement on TRIPS - IP enforcement

seminars with Sichuang Province Academy of Social Sciences

(researchers, judges, government officials); a TRIPs compliance lecture

and Chinese IP statutory initiatives with Chonqing IP officials,

Chongqing Academy of Social Sciences, and the Southwestern Univ of

Policies and Law in Chongqing City; the USPTO enforcement program

seminar with the Shanghai WTOO Enforcement Center; a meeting with

the Mayor of Dalian; a meeting with judges; a meeting at the Academy of

Sciences; and a meeting with SIPO. (April, 2002)

39.00 30/09/2002 -
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

Final Report, March 19, 2004 Page 46

Trade Category US Project / Activity Amount

($ '000)

Start Date -

End Date

Trade-Related

Intellectual

Property Rights

USTR Bilateral Meetings: Agreement on TRIPS - USTR bilateral

meetings. (January, 2002)

10.00 30/09/2002 -

Trade-Related

Intellectual

Property Rights

Geographic Indications Videoconference: Agreement on TRIPS -

Geographic Indications videoconference. Participating countries were:

Chile, China, Colombia, Costa Rica, El Salvador, Haiti, Jordan, Mexico,

Namibia, Paraguay, Peru, Philippines, Singapore, and Uruguay. (March,

2002)

0.23 30/09/2002 -

Trade-Related

Intellectual

Property Rights

IP Enforcement program with WIPO: Agreement on TRIPS - IP

Enforcement program with WIPO. Participating countries were: Albania,

Bangladesh, Botswana, Bulgaria, Chile, China, Croatia, Cyprus, Egypt,

Kuwait, Malawi, Malaysia, Macedonia, Mexico, Romania, Russia, Saint

Lucia, Serbia, Slovakia, Thailand, and Tanzania. (May, 2002)

0.59 30/09/2002 -

Trade-Related

Intellectual

Property Rights

USPTO/USTR training videoconference: Agreement on TRIPS -

USPTO/USTR training (Geneva), television broadcast (videoconference).

Participating countries were: Algeria, Barbados, China, Ecuador,

Guatemala, Indonesia, Korea, Malaysia, Mexico, Morocco, Panama,

Singapore, South Africa, and Tunisia. (February, 2002)

0.08 30/09/2002 -

Trade and

Environment

Typical activities included in this category have the objectives of assuring

that trade is environmentally neutral or positive; support for efforts to

improve environmental regulations and standards; and promoting the

transfer of environmental technology for sustainable development.

170.00 30/09/2001 -

Trade and

Environment

CITIES Training: Environment Sector Trade & Standards - China, as a

major consumer of wildlife products and as home to significant

endangered wildlife species, is one of the most significant countries in the

world in terms of wildlife trade. The U.S. has a longstanding cooperative

relationship with China which includes exchanges of experts and

government officials responsible for implementation of the Convention on

International Trade in Endangered Species of Wild Fauna and Flora

(CITES). In June 2002 FWS officials provided CITES training to Chinese

officials in China, met with Chinese wildlife officials and toured major

wildlife markets in SE China.

30/09/2002 -

Trade and

Environment

Industrial Eco-efficiency: Environment Sector Trade & Standards - In

China-US Cooperation in Pollution Prevention and Energy Efficiency

EPA cooperates with China State Environmental Protection

Administration (SEPA) to establish and implement a more economically

efficient environmental management policy for China’s industrial sector,

focusing on preventing pollution (source reduction) as a preferred

approach to environmental management. EPA cooperates with SEPA to

establish comprehensive partnership programs to prevent pollution and

conserve energy, including partnerships among relevant parts of the

Central Government, partnerships among provincial and local

governments and partnerships between government and industry. EPA

also cooperates with SEPA to enhance China’s capacity in pollution

prevention and energy efficiency and to obtain information about US

pollution prevention technologies and policies. To date, 63 facilities in 4

provinces have enrolled in the pilot partnering programs. Implemented

by: EPA.

150.00 30/09/2002 -
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

Final Report, March 19, 2004 Page 47

Trade Development

Trade Category US Project / Activity Amount

($ '000)

Start Date -

End Date

Business Support

Services and

Institutions

Typical activities included in this category have the objectives of helping

developing and transition countries engage in international services trade,

and of supporting the service sectors in those countries.

187.00 30/09/2001 -

Business Support

Services and

Institutions

CITIES Training: Business Services & Training - China, as a major

consumer of wildlife products and as home to significant endangered

wildlife species, is one of the most significant countries in the world in

terms of wildlife trade. The U.S. has a longstanding cooperative

relationship with China which includes exchanges of experts and

government officials responsible for implementation of the Convention on

International Trade in Endangered Species of Wild Fauna and Flora

(CITES). In June 2002 FWS officials provided CITES training to Chinese

officials in China, met with Chinese wildlife officials and toured major

wildlife markets in SE China.

3.00 30/09/2002 -

E-commerce 200230009B - Sinopec E-Procurement System: E-Commerce

Development & Information Technology - TDA approved a grant of

$429,000 for a feasibility study (FS) to define the technical and financial

requirements of an e-procurement system for Sinopec International

(Sinopec) of Beijing, China. The FS will determine (a) how Sinopec

should invest, organize its business, and train its staff to implement the

system and (b) what type of system is needed and how best to implement

said system. The study is expected to formulate a Strategic Investment

and Management Plan, outline a technical implementation plan, write a

strategic investment plan for the e-procurement system, write technical

specifications for the system, assess staff development and training needs,

analyze legal concerns, evaluate cultural concerns, and devise a

comprehensive financial plan.

429.00 30/09/2002 -

E-commerce 200230045A - E-Commerce Policy: E-Commerce Development &

Information Technology - TDA approved funding of $156,605.35 for an

Orientation Visit (OV) of Chinese officials involved with shaping China's

e-commerce policy. The twenty-member delegation will be comprised of

public and private sector officials who will travel to Boston, New York,

Washington, D.C., and San Francisco over the course of eight days. Site

visits will focus on educating the Chinese as to established U.S. practices

in the e-commerce sector, especially in terms of technology-neutrality,

private-sector leadership, and limited government intervention. The U.S.

IT sector's export activities to China will be enhanced should practices

similar to US standards be implemented. Computer Frontiers was selected

as the IQC contractor.

157.00 30/09/2002 -
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

Final Report, March 19, 2004 Page 48

Trade Category US Project / Activity Amount

($ '000)

Start Date -

End Date

Trade Promotion

Strategy Design

and

Implementation

200230021A - Agricultural Biotechnology Training Program: TradeRelated Agriculture Development - TDA approved a US$550,000.00

grant for a technical assistant to the Council for Agricultural Science and

Technology (CAST) for the organization and implementation a technical

assistance and training program with the Chinese Ministry of Agriculture,

its Chinese Academy of Agricultural Science, and other appropriate

members of the Chinese State Council's Agricultural GMO Joint-Ministry

Conference System. Because of China's uncertainty about the

implementation of new Ag-Biotech rules, it has caused new orders for

U.S. soybean exports (US$1 billion) to be halted. The focus of the TA and

training program would be to help influence implementation procedures

to minimize any negative impact on U.S. exports. Also, TDA's focus is,

on keeping the Chinese market open to U.S. soybean and corn products

and to promote the U.S. lab equipment for food safety testing purposes.

550.00 30/09/2002 -

Market Analysis

and Development

Typical activities included in this category have the objectives of

extending the benefits of trade to rural sectors; and supporting traderelated aspects of agriculture technology development and agribusiness.

725.00 30/09/2001 -

Source: Doha Development Agenda Trade-Related Technical Assistance and Capacity Building Database (TCBDB); available at

http://tcbdb.wto.org/index.asp.

In addition to the comprehensive information collected by the USAID database,

particular US agencies have provided information about the scope of their technical and trade

capacity building assistance to China.

For example, the US Department of Commerce has noted that the goal of its WTOrelated training efforts is "to provide Chinese officials with the information they need in order to

fully implement their WTO commitments in their relevant sectors."35 In its publication Export

America, Commerce described three examples of its technical assistance programs for China --

Intellectual Property Rights, Information Technology, and Medical Device Standards.

Intellectual Property Rights

In June of 2001, the U.S. Department of Commerce, in

coordination with the U.S. Department of Justice (DOJ) and

 

35 US Dept. of Commerce, International Trade Administration, Office of Chinese Economic Area, Market Access

and Compliance, Providing Technical Assistance to China, EXPORT AMERICA (April 2002), at 20. The article

is available at http://www.ita.doc.gov/exportamerica/NewOpportunities/no_TechnicalAssistance.pdf.
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

Final Report, March 19, 2004 Page 49

China's Ministry of Foreign Trade and Economic Cooperation

(MOFTEC), conducted one and a half day sessions on Intellectual

Property Rights (IPR) in Shenyang, Hangzhou, and Xiamen,

China. The program presented issues and options to Chinese

officials and entrepreneurs on IPR enforcement, including Trade

Related Aspects of Intellectual Property (TRIPS) and comparative

criminal practice and procedure. There was also a case study on

Intellectual Property, which was originally developed by

Commerce’s Patent and Trademark Office to train U.S. law

enforcement officers, prosecutors, and courts. In addition, two

presenters met with judges from Shanghai and Zhejiang Province

to better understand China’s structure for IPR enforcement.

Information Technology Training

In August 2001, the U.S. Department of Commerce held a WTO

Training Program on IT/Telecom Equipment Standards, Testing,

and Certification in Beijing, China. The program was hosted in

coordination with China’s Ministry of Information Industry (MII).

With over 70 Chinese and US attendees, the program consisted of

presentations from both Chinese and U.S. presenters with

discussion periods. The aim of the program was to raise awareness

among Chinese IT/Telecom officials and U.S. business leaders of

China’s WTO obligations, especially those relating to the

Information Technology Agreement. Chinese presenters explained

current practices and procedures used in testing labs, and

opportunities for foreign technical assistance in standards

conformity and compliance to international standards. The

program was carried out with high-level support from the Chinese

government and industry representatives as well as the assistance

and support from both the American Embassy and U.S. Foreign

and Commercial Service staff. After the program, participants

suggested that additional WTO-related training programs be

expanded to other cities in China. Participants also noted the need

for additional programs dealing with the issue of intellectual

property specifically for IT companies.

Medical Device Standards

In September 2001 the U.S. Department of Commerce, in

conjunction with the State Drug Administration (SDA) of China,

held a 3-day seminar on medical device standards. This seminar

included participants from the U.S. and EU private sectors,

TD/Medical Device staff and Food and Drug Administration
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

Final Report, March 19, 2004 Page 50

(FDA) regulators. The focus of this event was on the role of

standards under a Quality System-based regulatory approach.

Although medical device safety requirements in the U.S. and EU

differ in some technical respects, they both utilize the Quality

Systems approach to regulation (essentially, auditing factories that

make medical devices to ensure that they make quality products).

This is in contrast to the Chinese system of postproduction

testing.36

The US Department of Agriculture has organized and provided training programs for

China relating to agricultural issues, as described below:

The Department of Agriculture, through its Foreign Agriculture

Service (FAS), is coordinating all WTO issues as they relate to

agricultural affairs. In April 2001, FAS conducted a WTO-related

training program in conjunction with the Cochran Fellowship

Program. The program covered such topics as FAS role in trade

policy, WTO agreements on agriculture, sanitary and phytosanitary

measures and WTO agricultural negotiations. FAS is planning on

continuing similar training seminars in China for the future.37

Also, in recent years, the US Trade and Development Agency (USTDA) has funded

various technical assistance projects in China. The USTDA is an independent commerciallyoriented foreign assistance agency of the US Government which "promotes economic

development and trade in developing and middle-income countries by funding feasibility studies,

consultancies, training programs and other project planning services."38 USTDA activities cover

a wide range of sectors including Energy (Power, Oil and Gas), Telecommunications,

Transportation (Aviation, Urban Transit, Rail) and Environment (Hazardous and Solid Waste,

Industrial Remediation).

 

36 Providing Technical Assistance to China, EXPORT AMERICA (April 2002), at 20-21.

37 Providing Technical Assistance to China, EXPORT AMERICA (April 2002), at 21.

38 See http://www.tda.gov/region/asiapac.html.
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

Final Report, March 19, 2004 Page 51

USTDA's activities in China were reactivated in 2001, and, as reported by the agency:

grew rapidly during FY 2002, in part due to the Administration's

support for China's entry into the World Trade Organization

(WTO). The strong demand for USTDA activity in China reflects

significant development and trade-capacity needs, arising partly

from China's WTO membership and related commitments.39

According to USTDA, trade capacity building is an important part of its portfolio.

During FY 2003, USTDA provided over $20 million in trade

capacity-building assistance worldwide. USTDA works closely

with the Office of the U.S. Trade Representative (USTR) to focus

the agency’s trade capacity-building efforts in areas that are most

useful and effective. USTDA supports many important activities

involving World Trade Organization (WTO) commitments, the

negotiation of free trade agreements, customs reform and

modernization, the development of industry standards and

regulations, intellectual property rights (IPR) enforcement, and

infrastructure modernization to facilitate trade.40

As reported in the USTDA's 2002 and 2003 annual reports, the following tables list the

title and activity of the USTDA projects involving China, the contractor of the project, and the

amount funded for the project.

USTDA Activities in China -- 2002

Title Activity US Firm City & State Funds

Obligated

Inland Waterways Orientation Visit Koeppen, Elliott & Associates, Ltd. Washington DC 137,618

Shanghai Deep-Sea Port at Yangshan Feasibility Study Selection in progress 500,000

Shenhua Direct Coal Liquefaction Feasibility Study Hydrocarbon Technologies, Inc. Lawrenceville NJ 150,000

Chongqing Water and Wastewater

Treatment

Feasibility Study Liberty Pacific Direct Investments

Limited

Boston MA 450,000

Shanghai Municipal Electric Power

Bureau

Orientation Visit Princeton Energy Resources

International, LLC

Rockville MD 133,243

PetroChina Enhanced Oil Recovery Feasibility Study Tradewinds Oil and Gas International,

Ltd.

Houston TX 270,000

Rescue and Salvage Orientation Visit Mendez England & Associates Chevy Chase MD 121,019

Sinopec E-Trade System Definitional Mission Global Resources Irvine CA 34,721

Sinopec E-Procurement System Feasibility Study Selection in progress 429,000

CNS/ATM Master Plan Desk Study CORE International Washington DC 2,500

 

39 US Trade and Development Agency, Annual Report 2002, at 11.

40 US Trade and Development Agency, Annual Report 2003, at 12.
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

Final Report, March 19, 2004 Page 52

Title Activity US Firm City & State Funds

Obligated

CNS/ATM Master Plan Feasibility Study The Mitre Corporation McLean VA 859,796

Agricultural Biotechnology Training

Program

Technical Assistance Council for Agricultural Science and

Technology

Washington DC 550,000

Aviation Safety Academy Training Interflight Services, Inc. Bellevue WA 600,000

Geothermal Heat Pump Desk Study Geothermal Management Company,

Inc.

Frisco CO 2,500

Geothermal Heat Pump Feasibility Study Jacwill Services, Inc. St. Petersburg FL 315,300

Foreign Commercial Service Staff

Support

Technical Assistance US and Foreign Commercial Service Washington DC 20,000

China Environmental Sector Definitional Mission BRISEA International Development,

Inc.

Whippany NJ 25,000

China Environmental Sector – Shanghai

Municipal Solid Waste

Technical Assistance Selection in progress 858,000

China Electrical Power Projects Definitional Mission Commonwealth Power Corporation Virginia Beach

VA

24,961

China Beijing Water Reuse Conference Technical Assistance Richard Mills Sacramento CA 10,000

China Guangzhou Metro Line 3 Feasibility Study Selection in progress 523,270

China Shenzen Metro Phase 2 Feasibility Study Selection in progress 743,810

China Oil and Gas Sector Definitional Mission S.H. Lucas & Associates Pasadena CA 25,000

China ECommerce/Telecommunications

Projects

Definitional Mission Global Resources Irvine CA 34,976

China Aviation and Air Traffic Control

Opportunities

Definitional Mission Transportation & Economic Research

Associates, Inc. (TERA)

Sterling VA 24,967

China Beijing Olympics Infrastructure Definitional Mission Transportation & Economic Research

Associates, Inc. (TERA)

Sterling VA 24,967

China Beijing Olympics Infrastructure

– Advanced Traffic Management

System

Feasibility Study Selection in progress 286,890

China E-Commerce Policy Orientation Visit Computer Frontiers, Inc. Germantown MD 156,605

China Sichuan Basin Natural Gas

Market and Pricing Study

Desk Study S.H. Lucas & Associates Pasadena CA 2,500

China Sichuan Basin Natural Gas

Market and Pricing Study

Technical Assistance USDOE Washington DC 180,658

China Establishment of US-China

Natural Gas Institute

Technical Assistance Gas Technology Institute (GTI) Des Plaines IL 500,000

China World Bank Shanghai Urban

Environment Project – TOR Review

Desk Study Jennifer Windus Great Falls VA 2,500

China World Bank Shanghai Urban

Environment Project

Technical Assistance Selection in

progress

498,500

China Lanzhou Ethylene Plant Desk Study Gustavson Associates, Inc. Boulder CO 2,500

China Panel Manufacturing Desk Study McKittrick & Associates, Inc. Oakton VA 2,500

China Tianjin Waste Disposal Facility Feasibility Study Selection in progress 223,000

China AirVenture Orientation Visit Decision/Analysis Partners Vienna VA 70,000

China Foot and Mouth Disease Desk Study The Peoples Group Arlington VA 2,500

China WTO-E Learning Desk Study MEGA-TECH, Inc. Falls Church VA 2,500

China WTO-E Learning Feasibility Study Alamo Learning Systems San Ramon CA 417,000

China Desertification Prevention Desk Study AJGB Environmental Engineering

Specialists

Bellevue WA 2,500

China Desertification Prevention Feasibility Study Valmont Industries Omaha NE 244,200

China Chromium Encapsulation Desk Study Environmental Compliance, Inc. Elma NY 3,895

China Construction Equipment for

North-South Water Diversion

Orientation Visit Mendez England & Associates Chevy Chase MD 149,171

China Shanghai Power Reliability Desk Study J.W. Price & Associates Tucker GA 2,500

China CNG Bus and Equipment Orientation Visit Technical Resources International, Inc.

(TRI)

Bethesda MD 169,962

China Airport Emergency / Firefighting Orientation Visit MFM Group, Inc. Miami FL 104,416

China Jiangsu Environmental

Monitoring Project

Technical Assistance Selection in progress 207,000

Source: US Trade and Development Agency, Annual Report 2002, at 35.
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

A REVIEW OF CHINA'S 1ST TWO YEARS OF MEMBERSHIP

Final Report, March 19, 2004 Page 53

USTDA Activities in China -- 2003

Title Activity US Firm City & State Funds

Obligated

Inland Waterways Orientation Visit Koeppen, Elliott & Associates, Ltd.

(KEA)

Washington DC 2,000

USFCS Officer Wan Xiaolei Technical Assistance US and Foreign Commercial Service Washington DC 16,028

Oil and Gas Sector — Underground

Gas Storage

Feasibility Study Parsons Brinckerhoff Energy Storage

Services, Inc. (PB-ESS)

Houston TX 460,000

E-Commerce/Telecommunications

Projects -- Emergency 911

Orientation Visit The Louis Berger Group, Inc. Washington DC 136,210

Beijing Olympics Infrastructure --

Advanced Traffic Management System

Desk Study Transportation & Economic Research

Associates, Inc. (TERA)

Sterling VA 5,000

Tianjin Hazardous Waste Procurement

Audit

Desk Study Dayton J. Carpenter Syracuse NY 5,350

Shanghai Power Reliability Feasibility Study EPRI PEAC Corporation Knoxville TN 376,320

Trade Capacity Building Training

Program

Desk Study Global Technology Management, Inc. Fairfax VA 2,500

Trade Capacity Building Training

Program

Feasibility Study Global Alliance for Trade Efficiency Washington DC 585,250

SW China Aviation Security Feasibility Study Selection in progress 272,660

Di-Methyl Ether Plant Desk Study S.H. Lucas & Associates, Inc. Pasadena CA 2,500

Di-Methyl Ether Plant Feasibility Study Fluor Daniel China Services, Inc. Aliso Viejo CA 675,000

Environmental Sector Definitional Mission ECODIT, Inc. Arlington VA 24,996

Environmental Sector -

Bioconversion/Composting for BMAC

Feasibility Study Eric’sons, The Naturnomics Company Dallas GA 312,000

Shanghai Emergency Response Orientation Visit Koeppen, Elliott & Associates, Ltd.

(KEA)

Washington DC 122,963

Cable Television Industry Orientation Visit Decision/Analysis Partners Vienna VA 121,120

Shanghai Centralized Medical Waste

Treatment Facility

Feasibility Study Tetra Tech, Inc. Pasadena CA 204,900

Hazardous Waste Treatment and

Disposal

Definitional Mission Eurasia Environmental Associates,

LLC

Reston VA 23,940

Low-Emission Diesel Fuel Desk Study S.H. Lucas & Associates, Inc. Pasadena CA 4,000

Railway Intermodal Container

Transport

Desk Study William F. Hennessey Lenoir City TN 2,500

Sludge Management / Beijing

Drainage

Feasibility Study Selection in progress 350,000

Coal Bed Methane Orientation Visit Labat-Anderson, Incorporated McLean VA 86,076

Urban Water Technical Assistance Selection in progress 397,000

Water and Wastewater

Treatment/Beijing

Feasibility Study Selection in progress 250,000

Source: US Trade and Development Agency, Annual Report 2003, at 32.

A description of USTDA's projects in China during 2001, 2002, and 2003 (through September)

is provided in Appendix 12.41

A number of US agencies conduct and promote "rule of law" programs in China. For

example, in August 2002, the Department of Labor announced that it would award up to US$ 4.5

 

41 Additional information is available from the USTDA's annual reports for 2002 and 2003, available at

http://www.tda.gov/abouttda/index.html.
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 54

million to organizations that develop and implement programs focusing on the promotion of

labor rule of law in China through collaboration with central and local government agencies,

academic institutions and NGOs.42

USAID also maintains a China Rule of Law program.43

USAID’s rule of law program in China strengthens the legal

infrastructure for an emerging market economy through: education

in international and American legal principles and processes,

including transparency, due process, and attorney-client

obligations. Specific activities under the program include training

to improve Internet and e-commerce regulation, thus promoting

both business opportunities and human rights through access to

information, as well as training in WTO compliance measures and

in promoting health care regulations to address HIV/AIDS issues.44

USAID states that the rule of law program will "train Chinese judges, law professors, private

sector lawyers and other legal professionals in the content and principles of international and

American law with an emphasis on treaty obligations, especially WTO compliance; individual

rights and legal ethics."45 USAID expects that, by the end of the program, the Chinese "will

have a better understanding of the issues inherent in running an effective legal system that takes

individual rights into consideration," have the "basis for developing effective regulations for the

 

42 A China Labor Rule of Law Program; Notice of Availability of Funds and Solicitation for Cooperative

Agreement Applications, 67 Fed. Reg. 50901 (Dept. of Labor, Aug. 6., 2002).

43 See generally USAID's website at http://www.usaid.gov/our_work/democracy_and_governance/regions/

ane/china.html.

44 See USAID China Rule of Law Data Sheet, available at http://www.usaid.gov/our_work/democracy_and_

governance/regions/ane/435-003.pdf.

45 See USAID China Rule of Law Data Sheet, available at http://www.usaid.gov/our_work/democracy_and_

governance/regions/ane/435-003.pdf.
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 55

Internet and the health care industry," and "will understand better their treaty obligations under

the WTO."46

In addition, Congress has, in recent fiscal year appropriations, provided funds to promote

rule of law programs in China. For example, in the Consolidated Appropriations Act, 2004,

Congress provided that "not less than $13,500,000 shall be made available for assistance for

activities to support democracy, human rights, and the rule of law in the People’s Republic of

China and Hong Kong."47 Similarly, the Consolidated Appropriations Resolution, 2003,

provided that "not less than $15,000,000 shall be made available for assistance for activities to

support democracy, human rights, and the rule of law in the People’s Republic of China, Hong

Kong and Tibet."48 The Foreign Operations, Export Financing, And Related Programs

Appropriations Act, 2002, made a similar appropriation: "not less than $10,000,000 shall be

made available for assistance for activities to support democracy, human rights, and the rule of

law in the People’s Republic of China."49

(c) EU and other countries

In addition to the United States, other countries provide technical and capacity building

assistance to China. As China entered the WTO, the EU noted that it was essential that China

implement its commitments promptly and accurately. To achieve this goal, the EU committed to

working with China and noted that technical assistance would play an important role.

 

46 See USAID China Rule of Law Data Sheet, available at http://www.usaid.gov/our_work/democracy_and_

governance/regions/ane/435-003.pdf.

47 Consolidated Appropriations Act, 2004, Public Law 108–199, Title V, Sec. 526, January 24, 2004.

48 Consolidated Appropriations Resolution, 2003, Public Law 108–7, 117 STAT. 11, 89, February 20, 2003.

49 Foreign Operations, Export Financing, And Related Programs Appropriations Act, 2002, Public Law 107–

115, 115 STAT. 2118, 2147, January 10, 2002.
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Consequently, the EU established cooperation projects designed to help build China's capacity to

implement its WTO commitments. Initially, the EU noted that it had established five projects

budgeted at about EUR 22 million, including "a framework programme in support of WTO

accession," a "broad-based initiative to assist in the reform and restructuring of the financial

services sector," the "collection and provision of statistics," the "development of a framework for

transparent and non-discriminatory public procurement," and a "series of projects supporting the

development of a modern and effective system for the protection of intellectual property

rights."50 The EU currently summarizes its technical assistance to China as follows:

Since the mid nineties the EU Technical Assistance to China has

supported the economic reforms with a particular focus on training

and institutional capacity-building. After China's accession to the

WTO, it has become of utmost importance that the necessary

changes to the trade regime are implemented smoothly, timely and

accurately. To this end, the EU is committed to working in

partnership with China and determined to share its experience in

the WTO. Both regulatory and technical assistance will be key

elements to help China meet its WTO obligations and support the

changes to be introduced. With a budget totalling € 37 Millions

for projects focusing on capacity-building in China's government

and administration, and on implementation of its WTO

commitments, the EU ranks at the very first place among the

donors: in particular a € 15 Millions project adopted by the

Commission at the end of 2002 is so far the largest technical

assistance programme supporting China's integration into the

international trading system; this programme will be launched at

the end of 2003.51

The EU website provides information about specific technical assistance projects for

China, referred to as "EU-China Co-Operation Projects."52 The EU's assistance program is

 

50 See http://www.delchn.cec.eu.int/en/eu_china_wto/wto9.htm.

51 See http://europa.eu.int/comm/trade/issues/bilateral/countries/china/index_en.htm.

52 See http://www.delchn.cec.eu.int/en/Co-operation/Project_Fiches.htm.
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extensive, as demonstrated by the following index53 to the EU-China Co-Operation Projects

webpage:

3⁄4General

EU-China Small Project Facility

3⁄4Rule of Law and Good Governance

EU-China Legal & Judicial Co-operation Programme

EU-China Training Programme on Village Governance

EU-China Intellectual Property Rights Co-operation Programme

Human Rights Small Project Facility

China-Europe Public Administration Programme

3⁄4Economic & Social Reform

Framework Programme for EU Support to China’s Accession to the WTO

Support to China’s Integration into the World Trading System

EU-China Financial Services Co-operation Project

EU-China Enterprise Reform Project

EU-China Civil Aviation Co-operation Project

China-Europe International Business School (CEIBS) Phase II

EU-China Junior Managers Programme

EU-China Programme for the Development of Vocational Training for Industry

EU-China Basic Education Co-operation Programme

EU-China European Studies Centres Programme (ESCP)

Interpreter Training Programmes

Environment and Sustainable Development

EU-China Liaoning Integrated Environmental Programme

EC-China Environmental Management Co-operation Programme (EMCP)

Vehicle Emission Control Co-operation Project

Capacity Building for Municipal Solid Waste Management Reform in China

Panam Integrated Rural Development Project

Natural Forest Management Project

Energy/Environment Programme

3⁄4Regional Programmes

Asia-Invest

Asia Information Technology and Communication Programme (Asia IT&C)

Asia-Link

Asia Urbs

Asia Pro Eco

Integrated Pest Management for Cotton in Asia

3⁄4Recently Completed Projects

EU-China Higher Education Programme

 

53 See http://www.delchn.cec.eu.int/en/Co-operation/Project_Fiches.htm.
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EU-China Co-operation in the Field of Public Procurement – Pilot Project

Qinghai Livestock Development

EU-China Qinghai Potato Development Project

EU-China Technical & Commercial Co-operation within the Dairy & Food Processing Sector

EU-China Co-operation Programme in Statistics

Water Buffalo Development Project

Vocational Training Project for the Disabled

The EU states that the EU-China co-operation program is "now going beyond traditional

development aid into areas such as legal and judicial assistance, social reform, education, the

environment," that the "present co-operation portfolio includes some 40 projects with an overall

budget of around €270 million," and that the EU's "commitment to co-operation projects is

estimated to amount to around €250 million during the period 2002-2006."54 55

Other countries, such as Japan and Switzerland, also provide technical and capacity

building assistance to China. The WTO/OECD trade capacity building database lists numerous

projects provided by Japan during 2001 - 2003.

JAPAN

Technical and Capacity Building Assistance Provided to China: 2001 -- Early 2003

Trade Policy and Regulations

Trade Category Japan Project / Activity Amount

($ '000)

Start Date -

End Date

Trade Facilitation CUSTOMS TECHNICAL COOPERATION: To give participants

an opportunity to deepen their knowledge and skills of Customs

administration.

32.92 01/01/2001 -

Trade Facilitation Customs Technical Cooperation: To dispatch experts as lecturers. 3.20 01/04/2002 -

Customs Valuation CUSTOMS TECHNICAL COOPERATION: To give participants

an opportunity to deepen their knowledge and skills of Customs

Valuation.

6.09 01/01/2001 -

Customs Valuation Customs Technical Cooperation: To give participants an

opportunity to deepen their knowledge and skills on Customs

Valuation.

22.36 01/04/2002 -

Trade-Related

Intellectual Property

Rights

Customs Technical Cooperation: To dispatch an expert as a

lecturer.

16.46 01/04/2001 -

 

54 See http://www.delchn.cec.eu.int/en/Co-operation/General_Information.htm.

55 Additional detailed information about EU-China cooperation projects is available at a website titled "EU-China

WTO Programme" located at http://www.eucnwto.com.cn/index.htm. This site provides information about

118 EU-China activities over the 2001-2003 period.
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Trade Category Japan Project / Activity Amount

($ '000)

Start Date -

End Date

Trade-Related

Intellectual Property

Rights

Customs Technical Cooperation: To give participants an

opportunity to deepen their knowledge and skills on Intellectual

property rights.

7.27 01/04/2002 -

Trade-Related Training

Education

The Administration on the implementation of the WTO

Agreements: Training in Japan in Administration/ General.

10.46 30/06/2002 -

Trade-Related Training

Education

MANAGEMENT SKILL OF HUMAN RESOURCES

DEVELOPMENT: Training in Japan in Trade.

50.36 30/06/2001 -

Trade-Related Training

Education

Risk Management of Housing Financial Institution: Training in

Japan in Architecture/Housing.

6.95 30/06/2002 -

Trade-Related Training

Education

Support for WTO Accession: Training in Japan in Trade. 13.18 30/06/2002 -

Trade-Related Training

Education

INTELLECTUAL PROPERTY RIGHTS: Training in Japan in

Trade.

31.23 30/06/2002 -

Trade-Related Training

Education

Training in Japan in Health/Medicalcare: Training in Japan in

Trade.

4.63 30/06/2002 -

Trade-Related Training

Education

FOOD MICROBIAL CONTROL: Training in Japan in

Health/Medicalcare.

5.43 30/06/2002 -

Trade-Related Training

Education

DISTRIBUTION SYSTEM IN THE JAPANESE MARKET:

Training in Japan in Trade.

13.34 30/06/2001 -

Trade-Related Training

Education

TRADE AND INVESTMENT INSURANCE: Training in Japan in

Trade.

2.80 30/06/2002 -

Trade-Related Training

Education

INTELLECTUAL PROPERTY RIGHTS IN TECHNOLOGY

TRANSFERS: Training in Japan in Trade.

8.76 30/06/2001 -

Trade-Related Training

Education

COPYRIGHT SYSTEMS DEVELOPMENT: Training in Japan in

Administration/General.

2.64 30/06/2002 -

Trade-Related Training

Education

Operation of Understanding on Rules and Procedures Governing

the DSU, WTO Agreement: Training in Japan in Trade.

2.16 30/06/2002 -

Trade-Related Training

Education

Training in Japan in Trade 112.51 30/06/2001 -

Trade-Related Training

Education

Training in Japan in Trade 174.44 30/06/2002 -

Trade-Related Training

Education

Technical Cooperation in Trade 0.91 30/06/2001 -

Trade-Related Training

Education

Technical Cooperation in Trade 2.72 30/06/2002 -

Trade-Related Training

Education

Promoting of Participation of Japanese Citizen in Trade 15.97 30/06/2002 -

Trade Development

Trade Category Japan Project / Activity Amount

($ '000)

Start Date -

End Date

Business Support

Services and Institutions

Digital ATC: Technical Cooperation in Business Management. 20.85 30/06/2002 -

Business Support

Services and Institutions

Technical Cooperation in Business Management 18.11 30/06/2001 -

Business Support

Services and Institutions

Administration for Industry and Commerce in China: Training in

Japan in Business Management.

55.23 30/06/2001 -

Business Support

Services and Institutions

Adjustment of Farm and Cooperative Business to Market Economy

for China: Training in Japan in Business Management.

83.61 30/06/2001 -
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Final Report, March 19, 2004 Page 60

Trade Category Japan Project / Activity Amount

($ '000)

Start Date -

End Date

Business Support

Services and Institutions

CONSULTANCY SERVICE FOR SMALL INDUSTRIES:

Training in Japan in Business Management.

4.69 30/06/2001 -

Business Support

Services and Institutions

SEM. ON IMPROVEMENT OF THE STATUS OF WOMEN

FOR GOV'T OFFICERS: Training in Japan in Business

Management.

2.39 30/06/2001 -

Business Support

Services and Institutions

PRODUCTION MANAGEMENT(THEORY & PRACTICE ON

WORK IMPROVEMENT): Training in Japan in Business

Management.

1.48 30/06/2001 -

Business Support

Services and Institutions

INVESTMENT PROMOTION SEM.(1) (ASIAN COUNTRIES):

Training in Japan in Business Management.

6.26 30/06/2001 -

Business Support

Services and Institutions

SEMINAR ON LEGAL SYSTEM RELATED TO DIRECT

INVESTMENT: Training in Japan in Business Management.

6.09 30/06/2001 -

Business Support

Services and Institutions

PRIV. SECTOR MIDDLE MANAGEMENT FOR THE PACIFIC

COOPERATION: Training in Japan in Business Management.

9.37 30/06/2001 -

Business Support

Services and Institutions

MANAGEMENT OF CHAMBERS OF COMMERCE AND

INDUSTRY: Training in Japan in Business Management.

2.88 30/06/2002 -

Business Support

Services and Institutions

Training in Japan in Business Management 301.65 30/06/2001 -

Business Support

Services and Institutions

Training in Japan in Business Management 273.64 30/06/2002 -

Business Support

Services and Institutions

Technical Cooperation in Business Management 64.28 30/06/2001 -

Business Support

Services and Institutions

Technical Cooperation in Business Management 44.73 30/06/2002 -

Business Support

Services and Institutions

Technical Cooperation in Business Management 0.08 30/06/2002 -

Business Support

Services and Institutions

Technical Cooperation in Business Management 0.16 30/06/2001 -

Business Support

Services and Institutions

Technical Cooperation in Business Management: Promoting of

Participation of Japanese Citizen in Business Management.

12.94 30/06/2002 -

Trade Promotion

Strategy Design and

Implementation

Dispatching Technical Experts & Speaker Program: To support

reformation of economic structure, in the area of small & medium

industry, intellectual property rights, corporate management and

economic legal.

830.67 31/12/2002 -

Market Analysis and

Development

Small and Medium Scale Enterprises Development: Training in

Japan in Industry/General.

0.08 30/06/2001 -

Market Analysis and

Development

Study on Small and Medium Enterprise Development in Shenyang

and Hanzho: Development Study in Industry/General.

2,516.54 30/06/2001 -

Market Analysis and

Development

Study on Small and Medium Scale Enterprises Development Plan

in China: Development Study in Industry/General.

1,324.36 30/06/2002 -

Market Analysis and

Development

Conformity Assessment Systems For Industry: Training in Japan in

Industry/General.

3.27 30/06/2002 -

Market Analysis and

Development

Intellectual Property For Apec Economies: Training in Japan in

Industry/General.

19.89 30/06/2001 -

Market Analysis and

Development

Seminar On Evaluation Of National R&D Projects: Training in

Japan in Other Industries.

5.84 30/06/2001 -

Trade Finance Risk Management of Housing Financial Institution: Development

Study in Budget/Finance.

807.11 30/06/2002 -
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Final Report, March 19, 2004 Page 61

Trade Category Japan Project / Activity Amount

($ '000)

Start Date -

End Date

Trade Finance Risk Management of Housing Financial Institution: Technical

Cooperation in Budget/Finance.

0.08 30/06/2002 -

Trade Finance The Study for Improving the Housing Finance Reform in PRC:

Development Study in Budget/Finance.

2,168.15 30/06/2001 -

Trade Finance Promotion Of Small And Medium Sized Industrial Enterprises:

Training in Japan in Budget/Finance.

27.82 30/06/2001 -

Trade Finance Tokyo Executive Seminar on Insurance Regulation and

Supervision / The FSA Seminar: Seminars on international issues

in insurance supervision, and Japanese supervisory system and

experiences.

9.82 10/01/2002 -

Trade Finance Tokyo Enforcement Seminar on Securities Market Enforcement:

International seminar for securities law enforcement practitioners

of emerging markets.

9.51 25/02/2002 -

Trade Finance Tokyo Seminar on Securities Market Regulation 2002:

International seminar for practitioners of securities regulatory

authorities.

20.05 01/04/2002 -

Trade Finance Tokyo Seminar on Securities Market Regulation 2001:

International seminar for practitioners of securities regulatory

authorities.

21.40 02/04/2001 -

Trade Finance Seminar On Small & Medium Enterprises Development Policies:

Training in Japan in Budget/Finance.

3.05 30/06/2001 -

Trade Finance Seminar On Taxation (General Tax Course): Training in Japan in

Budget/Finance.

9.41 30/06/2001 -

Trade Finance Seminar On Taxation (Senior Tax Course) II: Training in Japan in

Budget/Finance.

9.16 30/06/2001 -

Trade Finance Financial Industry Information Systems: Training in Japan in

Budget/Finance.

2.56 30/06/2002 -

Source: Doha Development Agenda Trade-Related Technical Assistance and Capacity Building Database (TCBDB); available at

http://tcbdb.wto.org/index.asp.

Switzerland's technical assistance to China has focused on environmental projects, among

other areas. The WTO/OECD database list the following projects provided to China by

Switzerland.

SWITZERLAND

Technical and Capacity Building Assistance Provided to China: 2001 -- Early 2003

Trade Policy and Regulations

Trade Category Switzerland Project / Activity Amount

($ '000)

Start Date -

End Date

SPS and TBT China Quality Production of Poultry: The project aims at improving the

quality of poultry production in China by supporting the introduction of

a quality control system based on the EUREP-Gap (European)

requirements and including environmental and social standards.

1,098.26 01/09/2003 -

31/12/2005

Trade and

Environment

China Council for International Cooperation on Environment and

Development: support of the Task Force "WTO and Environment": The

Task Force plans to undertake two major tasks: 1) to conduct an

31/12/2002 -
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Trade Category Switzerland Project / Activity Amount

($ '000)

Start Date -

End Date

integrated environmental impacts assessment of China's WTO accession

in some selected sectors that are of importance to the environment and

sustainable development; 2) enhancing the capability to participate in the

WTO negotiations on trade and the environment.

Trade and

Environment

Task Force "WTO and Environment" of the China Council for

International Cooperation on Environment and Development": This

projects aims at supporting an high-level advisory body to the Chinese

Government in questions relating to environment and development. It

will assess the environmental consequences of China’s WTO accession,

develop appropriate policy measures to support sustainable trade and

help China’s negotiators to address the environmental issues in the new

Round of WTO negotiations. All activities will be supported by the

international review-team formed by the members of the task force WTO

and Environment.

1,098.26 01/09/2003 -

31/12/2005

Trade Development

Trade Category Switzerland Project / Activity Amount ($

'000)

Start Date -

End Date

Market Analysis

and Development

Increasing market access for sustainable development: capacity building

on norms standards labels and certification

144.53 31/12/2002 -

Market Analysis

and Development

Centre pour la promotion de techniques plus respectueuses de

l'environnement (Cleaner Production Centre): Chine: Les centres pour

une production plus propre (CPC), programme lancé par l'ONUDI,

visent à contribuer à l'amélioration des techniques de production et à

l'introduction de méthodes de transformation plus éco-efficientes dans

les pays en développement, afin de faciliter l'accès de leurs produits sur

les marchés internationaux. Les CPC conseillent les PME en matière de

gestion écologique et d'efficience énergétique.

3,211.72 27/03/2002 -

Trade Finance Sichuan Guarantee Fund: Guarantee fund that provides guarantees to

local banks to cover loans for SMEs in the city of Chengdu, Sichuan

province.

3,660.86 01/09/2003 -

31/12/2006

Trade Finance China: Training Fund Managers: 3-4 day training course for managers of

venture capital funds in China.

732.17 01/09/2003 -

31/12/2003

Trade Finance Sino-Swiss Partnership Fund / Chine: Prises de participation et prêts

pour des projets de joint-ventures entre la Suisse et la Chine.

10,670.46 20/08/2001 -

Source: Doha Development Agenda Trade-Related Technical Assistance and Capacity Building Database (TCBDB); available at

http://tcbdb.wto.org/index.asp.

B. The Transitional Review Mechanism

1. What is required by Article 18 of the Protocol

Prior to acceding to the WTO, China made significant modifications to its trading system.

Upon accession, China assumed commitments to liberalize its trading regime, including making

further significant reductions in its tariffs and certain non-tariff barriers. However, China's
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 63

accession to the WTO in December 2001 was not the culmination of the transformation of its

trading system. Recognizing that China still needed to accomplish huge changes over a period of

years before China would be in full compliance with all of its WTO obligations, other Members

wanted to establish an annual monitoring mechanism that would oversee the progress of China's

compliance with its WTO commitments and that would focus a light on China's implementation

process. The United States, for example, explicitly made an annual review of China's

compliance with its WTO obligations an element of its national trade policy. In the bill that

extended nondiscriminatory treatment (normal trade relations treatment) to the People's Republic

of China, Congress expressly provided:

It shall be the objective of the United States to obtain as part of the

Protocol of Accession of the People's Republic of China to the

WTO, an annual review within the WTO of the compliance by the

People's Republic of China with its terms of accession to the

WTO.56

This provision is codified at 22 U.S.C. § 6931. Given China's importance to the world trading

system, the concerns of the United States and other Members were not surprising.

Thus, in the Protocol on Accession, China agreed to an annual review of its progress in

implementing its WTO obligations. As set out in the Protocol. this annual process, referred to as

the Transitional Review Mechanism ("TRM"), would occur for eight consecutive years starting

in 2002 with one final review of China's compliance and implementation in the tenth year

following accession.57 The TRM process is unique to China.

 

56 Pub. L. 106-286, div. B, Title IV, § 401, Oct. 10, 2000, 114 STAT. 900.

57 Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001) art. 18.4.
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Article 18 of the Protocol on Accession establishes the Transitional Review Mechanism

and sets out the requirements and procedures for conducting the TRM. Article 18 provides that

sixteen WTO subsidiary bodies, each of which has a mandate in reviewing China's WTO

commitments, shall, within one year of China's accession, and on an annual basis thereafter (for

eight years), review China's implementation of its WTO commitments. The sixteen subsidiary

bodies with a role in the TRM are:

• Council for Trade in Goods

• Council for TRIPs

• Council for Trade in Services

• Committee on BOP Restrictions

• Committee on Market Access

• Committee on Agriculture

• Committee on Sanitary and Phytosanitary

Measures

• Committee on Technical Barriers to Trade

• Committee on Subsidies and Countervailing

Measures

• Committee on Anti-Dumping Measures

• Committee on Customs Valuation

• Committee on Rules of Origin

• Committee on Import Licensing

• Committee on TRIMs

• Committee on Safeguards

• Committee on Trade in Financial Services

China is required (pursuant to Protocol Annex 1A) to provide certain specific information to

these bodies in advance of their review, and China may raise before these bodies issues relating

to commitment reservations by other Members. Each body is directed to report the results of its

review to the relevant WTO council, and that council in turn shall make a report to the General

Council.58

Article 18.2 directs that the General Council shall, within one year of China's accession,

and on an annual basis thereafter (for eight years), review China's implementation of its WTO

 

58 Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001) art. 18.1.
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commitments in accordance with the framework set out in Protocol Annex 1B.59 The General

Council may make recommendations to China and other Members pursuant to its review.60

The text of Article 18 is presented in the following box:

18. Transitional Review Mechanism

1. Those subsidiary bodies1

 of the WTO which have a mandate covering China's commitments under the

WTO Agreement or this Protocol shall, within one year after accession and in accordance with paragraph 4 below,

review, as appropriate to their mandate, the implementation by China of the WTO Agreement and of the related

provisions of this Protocol. China shall provide relevant information, including information specified in Annex 1A,

to each subsidiary body in advance of the review. China can also raise issues relating to any reservations under

Section 17 or to any other specific commitments made by other Members in this Protocol, in those subsidiary bodies

which have a relevant mandate. Each subsidiary body shall report the results of such review promptly to the relevant

Council established by paragraph 5 of Article IV of the WTO Agreement, if applicable, which shall in turn report

promptly to the General Council.

2. The General Council shall, within one year after accession, and in accordance with paragraph 4 below,

review the implementation by China of the WTO Agreement and the provisions of this Protocol. The General

Council shall conduct such review in accordance with the framework set out in Annex 1B and in the light of the

results of any reviews held pursuant to paragraph 1. China also can raise issues relating to any reservations under

Section 17 or to any other specific commitments made by other Members in this Protocol. The General Council may

make recommendations to China and to other Members in these respects.

3. Consideration of issues pursuant to this Section shall be without prejudice to the rights and obligations of

any Member, including China, under the WTO Agreement or any Plurilateral Trade Agreement, and shall not

preclude or be a precondition to recourse to consultation or other provisions of the WTO Agreement or this Protocol.

4. The review provided for in paragraphs 1 and 2 will take place after accession in each year for eight years.

Thereafter there will be a final review in year 10 or at an earlier date decided by the General Council.

1 Council for Trade in Goods, Council for Trade-Related Aspects of Intellectual Property Rights, Council for Trade in Services, Committees on Balance-of-Payments

Restrictions, Market Access (covering also ITA), Agriculture, Sanitary and Phytosanitary Measures, Technical Barriers to Trade, Subsidies and Countervailing Measures, AntiDumping Measures, Customs Valuation, Rules of Origin, Import Licensing, Trade-Related Investment Measures, Safeguards, Trade in Financial Services.

Annexes 1A and 1B to the Protocol detail the types of information that China must

provide to the relevant subsidiary bodies in the context of the TRM and the issues that the

General Council shall address in the TRM.

 

59 Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001) art. 18.2.

60 Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001) art. 18.2.
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Annex 1A organizes the information that China is directed to provide by subject area and,

within each area, more specifically identifies that information that China should provide to

particular subsidiary bodies. The following identifies the subject areas and summarizes the type

of information that China is required to provide within those areas pursuant to Protocol Annex

1A.61

3⁄4 ECONOMIC DATA, including information regarding:

• recent import/export statistics

• current account data on services

• capital account data regarding foreign direct investment

• tariff revenues, non-tariff taxes, and other border charges levied

exclusively on imports

• the value of export duties/taxes

• trade volume subject to tariff exemptions

• commissions/mark-ups/other fees charged on imports subject to

state/designated trading

• share of import/export trade held by state-owned enterprises (SOEs)

• annual and 5-year economic development programs, or any

industrial/sectoral policies of central and sub-central government

entities

• annual VAT receipts

3⁄4 ECONOMIC POLICIES, including information regarding:

• non-discrimination (e.g., repeal of WTO-inconsistent laws and

regulations; provision of full GATT national treatment)

• foreign exchange and payments (e.g., exchange measures required by

IMF)

• investment regime

• pricing policies (e.g., price controls; pricing mechanisms of state

trading enterprises (STEs))

3⁄4 FRAMEWORK FOR MAKING AND ENFORCING POLICIES,

including information regarding:

• structure and powers of the government

• authority of sub-central governments

• uniform administration

• revision/enactment of domestic laws and regulations related to WTO

commitments

 

61 See Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001), Annex 1A.
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3⁄4 POLICIES AFFECTING TRADE IN GOODS, including information

regarding:

• tariff rate quotas

• non-tariff measures (including quantitative import restrictions)

• import licensing

• customs valuation

• export restrictions

• safeguards

• technical barriers to trade (e.g., standards and harmonization of

standards; conformity assessment bodies and procedures)

• trade-related investment measures (e.g., status of trade and foreign

exchange balancing requirements, local content and export

performance offsets and technology transfer requirements; measures

concerning motor vehicle production and investment)

• state trading entities (e.g., extension of trading rights; access to raw

materials in textiles; increased access to trade in fertilizer and oil)

• government procurement (e.g., laws and regulations; transparency)

3⁄4 POLICIES AFFECTING TRADE IN SERVICES, including

information regarding:

• updated laws, regulations, etc. affecting trade in services

• licensing procedures and conditions between domestic and foreign

service suppliers

• updated lists of authorities responsible for administration of trade in

services

• independence of the regulatory authorities

• status of licensing applications in sectors where specific commitments

were made

3⁄4 TRADE-RELATED INTELLECTUAL PROPERTY REGIME,

including information regarding:

• Copyright, Trademark and Patent Law amendments

• compliance with and full application of TRIPS Agreement

• IPR enforcement efforts

3⁄4 SPECIFIC QUESTIONS IN THE CONTEXT OF THE

TRANSITIONAL REVIEW MECHANISM (received from either the

General Council or any of the subsidiary bodies)

Annex 1B identifies the issues that the General Council should address in the context of

the TRM. These are: (1) the review of the TRM reports submitted by each of the responsible
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subsidiary bodies; (2) the state of development of China's trade with other Members and trading

partners; and (3) any recent developments and cross-sectoral trade issues respecting China's trade

regime.62

The following boxes provide the specific requirements of Annex 1A and Annex 1B.

ANNEX 1A

INFORMATION TO BE PROVIDED BY CHINA

IN THE CONTEXT OF THE TRANSITIONAL REVIEW MECHANISM

China is requested to provide information on the following in accordance with Article 18.1 of the Protocol

of Accession. The requested information should be provided annually, except in those cases where China and the

Members agree that it is no longer required for the review.

I. ECONOMIC DATA

(a) most recently available import and export statistics by value and volume, by supplier country at the HS 8-

digit level

(b) current account data on services, by source and destination in line with the statistical requirements of the

IMF

(c) capital account data for inward- and outward-realized foreign direct investment by source and destination

in line with the statistical requirements of the IMF

(d) the value of tariff revenues, non-tariff taxes, and other border charges levied exclusively on imports by

product or at the highest level of detail possible, but at least by HS heading (4-digit) at the beginning of the

review mechanism

(e) the value of export duties/taxes by product

(f) the volume of trade subject to tariff exemptions by product or at the highest level of detail possible, but at

least by HS heading (4-digit) at the beginning of the review mechanism

(g) the value of commissions, mark ups and other fees charged on imports subject to state trading or designated

trading imposed through government regulation or guidance, if any

(h) the shares of imports and exports accounted for by the trading activities of state-owned enterprises

(i) annual economic development programmes, China's five-year programmes and any industrial or sectoral

programmes or policies (including programmes relating to investment, export, import, productions, pricing

or other targets, if any) promulgated by central and sub-central government entities

(j) annual receipts under the Value-Added Tax (VAT), with separate information for imports and domestic

products as well as information on VAT rebates

II. ECONOMIC POLICIES

1. Non-Discrimination (to be notified to the Council for Trade in Goods)

(a) the repeal and cessation of all WTO inconsistent laws, regulations and other measures on national treatment

(b) the repeal or modification to provide full GATT national treatment in respect of laws, regulations and other

measures applying to internal sale, offering for sale, purchase, transportation, distribution or use of: after

sales service, pharmaceutical products, cigarettes, spirits, chemicals and boiler and pressure vessels (for

pharmaceutical products, chemicals and spirits there is a reservation of the right to use a transitional period

 

62 Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001), Annex 1B.
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of one year from the date of accession in order to amend or repeal relevant legislation)

2. Foreign Exchange and Payments (to be notified to the Committee on Balance-of-Payments

Restrictions)

(a) exchange measures as required under Article VIII, Section 5 of the IMF's Articles of Agreement and such

other information on China's exchange measures as was deemed necessary in the context of the transitional

review mechanism

3. Investment Regime (to be notified to the Committee on Trade-Related Investment Measures)

(a) completed revisions to investment guidelines in conformity with the WTO Agreement

4. Pricing Policies (to be notified to the Committee on Subsidies and Countervailing Measures)

(a) application of existing or any other price controls and the reason for their use

(b) pricing mechanisms of China's state trading enterprises for exported products

III. FRAMEWORK FOR MAKING AND ENFORCING POLICIES

1. Structure and Powers of the Government/Authority of Sub-Central Governments/Uniform

Administration (to be notified to the General Council)

(a) revision or enactment of domestic laws, regulations and other measures related to China's commitments

under the WTO Agreement and Protocol, including those of local governments at the sub-national level,

that have been promulgated since accession or the previous meeting of the relevant body under the

Transitional Review Mechanism

(b) establishment and operation (upon accession) of the mechanism pursuant to Section 2(A), paragraph 4 of

the Protocol under which individuals and enterprises can bring cases of non-uniform application of the

trade regime to the attention of national authorities

IV. POLICIES AFFECTING TRADE IN GOODS

1. Tariff Rate Quotas (to be notified to the Committee on Market Access)

(a) administration of TRQs on a transparent, predictable, uniform, fair and non-discriminatory basis using

clearly specified timeframes, administrative procedures and requirements and evidence of a consistent

national allocation (and reallocation) policy including:

(i) provision of volume/value of the quota or TRQ made available;

(ii) reallocated quota or TRQ applied for;

(iii) the volume/value of requests for allocation or reallocation denied;

(iv) fill rates for the quota or TRQ;

(v) for TRQs, the amount of any goods entered at the over quota rate; and

(vi) time taken to grant a quota or TRQ allocation.

2. Non-Tariff Measures including Quantitative Import Restrictions (to be notified to the Committee on

Market Access)

(a) the introduction, re-introduction or application of any non-tariff measures other than those listed in Annex

3 of the Protocol and elimination of non-tariff measures

(b) implementation of the schedule for phased elimination of the measures contained in Annex 3

(c) quota allocation and reallocation in conformity with WTO requirements, including the Agreement on

Licensing Procedures following criteria set out in the Report of the Working Party on the Accession of
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China ("Report ")

(d) distribution licences, quotas, tariff rate quotas or any other means of approval for importation are not

subject to conditions set out in Section 7, paragraph 3 of the Protocol

3. Import Licensing (to be notified to the Committee on Import Licensing)

(a) implementation of the provisions of the Agreement on Import Licensing Procedures and the WTO

Agreement applying the measures set out in Section 8 of the Protocol including provision of the time taken

to grant an import licence

4. Customs Valuation (to be notified to the Committee on Customs Valuation)

(a) the use of valuation methods, other than the stated transaction value

5. Export Restrictions (to be notified to the Council for Trade in Goods)

(a) any restrictions on exports through non-automatic licensing or other means justified by specific product

under the WTO Agreement or the Protocol

6. Safeguards (to be notified to the Committee on Safeguards)

(a) implementation of China's Regulation on Safeguards

7. Technical Barriers to Trade (to be notified to the Committee on Technical Barriers to Trade)

(a) notification of acceptance of the Code of Good Practice not later than four months after China's accession

(b) periodic review of existing standards of government standardizing bodies and harmonization of the same

with relevant international standards where appropriate

(c) revision of current voluntary national, local and sectoral standards so as to harmonize them with

international standards

(d) use of the terms "technical regulations" and "standards" according to their meaning under the TBT

Agreement in China's notifications under the TBT Agreement, including under Article 15.2 thereof and

publications referenced therein, and in modifications of existing measures

(e) review of technical regulations every five years to ensure international standards are used in accordance

with Article 2.4 of the Agreement and provision for adoption of international standards as the basis for

technical regulation as part of its notification under Article 15.2 of the Agreement

(f) progress report on increase of the use of international standards as the basis for technical regulations by ten

per cent in five years

(g) provision of procedures to implement Article 2.7 of the Agreement

(h) provision of a list of relevant local governmental and non-governmental bodies that are authorized to adopt

technical regulations or conformity assessment procedures as part of China's notification under Article 15.2

of the Agreement

(i) ongoing updates on the conformity assessment bodies that are recognized by China

(j) enactment and implementation of a new law and relevant regulations regarding assessment and control of

chemicals for the protection of the environment in which complete national treatment and full consistency

with international practices would be ensured within one year after China's accession following conditions

set out in 3(t) of the TBT Working Party Report

(k) information on whether, one year after accession, all conformity assessment bodies and agencies are

authorized to undertake conformity assessment for both imported and domestic products and are following

the conditions outlined in Section 13, subparagraph 4(a) of the Protocol

(l) assignment of the respective responsibilities of China's conformity assessment bodies solely on the basis of

the scope of work and type of product without any consideration of the origin of a product no later than

eighteen months after accession
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(m) notification of the respective responsibilities assigned to China's conformity assessment bodies to the TBT

committee 12 months after accession

8. Trade-Related Investment Measures (to be notified to the Committee on Trade-Related Investment

Measures)

(a) elimination and cessation of enforcement of trade and foreign exchange balancing requirements, local

content and export performance offsets and technology transfer requirements made effective through laws,

regulations or other measures

(b) amendments to ensure lifting of all measures applicable to motor vehicle producers restricting the

categories, types or models of vehicles permitted for production (to be completely removed two years after

accession)

(c) increased limits within which investments in motor vehicle manufacturing could be approved at the

provincial government at the levels outlined in the Report

9. State Trading Entities (to be notified to the Council for Trade in Goods)

(a) progressive abolishment of state trading in respect of silk measures, increasing and extending trading

rights, granting the right to trade to all individuals no later than 1 January 2005

(b) access to supplies of raw materials in the textiles sector at conditions no less favourable than for domestic

users, and not adversely affected access to supplies of raw materials as enjoyed under existing

arrangements

(c) progressive increases in access by non state trading entities to trade in fertilizer and oil and the filling of

quantities available for import by non state trading entities

10. Government Procurement (to be notified to the Council for Trade in Goods)

(a) laws, regulations and procedures

(b) procurement in a transparent manner and application of the MFN principle

V. POLICIES AFFECTING TRADE IN SERVICES (to be notified to the Council for Trade in

Services)

(a) regularly updated lists of all laws, regulations, administrative guidelines and other measures affecting trade

in each service sector or sub-sector indicating, in each case, the service sector(s) or sub-sector(s) they apply

to, the date of publication and the date of entry into force

(b) China's licensing procedures and conditions, if any, between domestic and foreign service suppliers,

measures implementing the free choice of partner and list of transport agreements covered by MFN

exceptions

(c) regularly updated lists of the authorities, at all levels of government (including organizations with delegated

authority) which are responsible for the adoption, implementation and reception of appeals for laws,

regulations, administrative guidelines and other measures affecting trade in services

(d) independence of the regulatory authorities from the service suppliers

(e) foreign and domestic suppliers in sectors where specific commitments have been undertaken indicating the

state of play of licensing applications on sector and sub-sector levels (accepted, pending, rejected)

VI. TRADE-RELATED INTELLECTUAL PROPERTY REGIME (to be notified to the Council for

Trade-Related Aspects of Intellectual Property Rights)

(a) amendments to Copyright, Trademark and Patent Law, as well as relevant implementing rules covering

different areas of the TRIPS Agreement bringing all such measures into full compliance with and full

application of the TRIPS Agreement and the protection of undisclosed information

(b) enhanced IPR enforcement efforts through the application of more effective administrative sanctions as
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described in the Report

VII. SPECIFIC QUESTIONS IN THE CONTEXT OF THE TRANSITIONAL REVIEW MECHANISM

(to be notified to the General Council or relevant subsidiary body)

(a) response to specific questions in the context of the transitional review mechanism received from the

General Council or a subsidiary body

ANNEX 1B

ISSUES TO BE ADDRESSED BY THE GENERAL COUNCIL IN ACCORDANCE

WITH SECTION 18.2 OF CHINA'S PROTOCOL OF ACCESSION

– Review of the reports and the issues referred to in Section 18.1 of China's Protocol of Accession.

– Development of China's trade with WTO Members and other trading partners, including the volume,

direction and composition of trade.

– Recent developments and cross-sectoral issues regarding China's trade regime.

The Rules of Procedure of the WTO General Council shall apply unless specified otherwise. China shall

submit any information and the documentation relating to the review no later than 30 days prior to the date of the

review.

2. Experience in the first review

(a) Timing of review issues

There is no time frame for the conduct of the TRM included in the Protocol of Accession.

A few months after China's accession, controversy surfaced over the TRM timing issue as

Members sought to get the TRM process started by raising substantive compliance issues and

TRM procedural issues at early committee meetings in 2002.

At the request of the United States, "implementation of WTO commitments by the

People's Republic of China" was placed on the agenda at the regular meeting of the Council for

Services on March 17, 2002. Specifically, the United States raised issues regarding insurance

and express delivery services, and stated that it would seek opportunities to raise other issues in

other WTO bodies as necessary. The United States also pointed out that WTO Members should
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raise their concerns regarding China's implementation throughout the course of the year, and any

such concerns should subsequently be reflected in the annual transitional review at the end of the

year. In response, China said the issues raised were too complex for an immediate response, and

indicated that it believed the proper forum for raising such issues was in the transitional review

mechanism. In China's view, "there was only one annual review within the provisions of Section

18 of the Protocol" and "none of the statements made at this meeting should be included in the

annual review within the framework of the TRM."63

Subsequently, at the regular meetings of many committees in the spring and early

summer of 2002, preparation in relation to the transitional review mechanism was raised as part

of the agenda. The discussions held at these meetings focused on whether new guidelines and

procedures needed to be established to advance the TRM process. Members, such as the United

States, urged agreement on the three timing issues that the Protocol does not spell out, namely,

(1) how far in advance must China submit the relevant information set out in Annex 1A, (2) how

far in advance must Members submit their specific questions for China, and (3) how far in

advance must China submit its responses to Members' questions.

To ensure adequate time for preparation for a constructive review, the United States

proposed a 90-60-30 day formulation in which China's notification would be submitted 90 days

in advance of the meeting at which the review would take place, questions would be posed to

China 60 days in advance of that meeting, and China would respond to these questions 30 days

 

63 Report of the Meeting held on 19 March 2002, Council for Trade in Services, S/C/M/59 (14 May 2002) at

paras. 54-70.
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in advance of the meeting.64 China rejected the proposal. At the Committee on Market Access,

for example, China stated that its obligation was stipulated in Paragraph 18 and that it was

unacceptable to go beyond that and increase the obligations of China in terms of specific timeframes or procedures.65

Based on proposals at many committee meetings, committee chairs engaged in informal

consultations with China and other Members to resolve their difference of views on TRM

procedural matters. By mid-year 2002, it was generally agreed that the first TRM review would

be held at the last regular subsidiary body meetings of 2002. However, no consensus was

achieved regarding the timing for submission of required information China, questions from

Members, and responses by China. Nevertheless, as a voluntary gesture, Members began

submitting written questions for the TRM review as early as August 2002. The first TRM

review occurred at the Council on TRIPS on September 17, 2002. The following table shows the

timing of events during the first TRM in 2002.

Timing of TRM-Related Events -- 2002

2002 Event

March • The US puts "Implementation of commitments by the People's Republic of China" on the

agenda of the regular meeting of the Council for Trade in Services.

April

• "Preparation in connection with paragraph 18 of the Protocol on the Accession of the People's

Republic of China" put on the agenda of the regular meeting of the Committee on Safeguards.

• EC raises timing issues in relation to the transitional review at the regular meeting of the

Committee on Antidumping Practices.

May

• "Preparation in connection with paragraph 18 of the Protocol on the Accession of the People's

Republic of China" put on the agenda of the regular meetings of the Committee on Customs

Valuation, Subsidies and Countervailing Measures, Import Licensing, and TRIMS.

June

• "Preparation in connection with paragraph 18 of the Protocol on the Accession of the People's

Republic of China" put on the agenda of the regular meetings of the Committee on Agriculture,

Market Access, SPS Measures, Financial Services, and Council for Trade in Services.

 

64 Minutes of the Regular Meeting Held on 29 - 30 April 2002, Committee on Safeguards, G/SG/M/19 (16

October 2002) at para. 162.

65 Committee on Market Access - Minutes of the Meeting - Held in the Centre William Rappard on 12 June 2002,

G/MA/M/32 (11 September 2002) at para. 12.2.
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2002 Event

August • Members begin to submit written questions to China in the context of the first TRM.

• TRM Review held by:

September  Council for TRIPS

 Committee on Market Access

 Committee on Import Licensing

 Committee on Agriculture

• TRM Review held by:

October  Council for Trade in Services

 Committee on TRIMS

 Committee on Safeguards

 Committee on Anti-Dumping Practices

 Committee on Technical Barriers to Trade

 Committee on Trade in Financial Services

 Committee on Subsidies and Countervailing

Measures

• TRM Review held by:

November  Committee on Customs Valuation

 Committee on SPS Measures

 Committee on Rules of Origin

 Committee on Balance-of-Payments

 Council for Trade in Goods

December • TRM Review by the General Council.

(b) Data supplied by China at beginning of review

Pursuant to Annex 1A of Paragraph 18 of the Protocol of Accession, China is required to

submit certain information to the relevant WTO subsidiary bodies in advance of the transitional

review. As reviewed in Section B.1. above, the information required covers a wide range of

subject areas pertaining to trade, and includes economic data, economic policy, and information

on legislative efforts to ensure compliance with specific commitments.

During the first transitional review, China submitted all the information required under

Annex 1A except for information on foreign exchange and payments which was supposed to be

notified to the Balance-of-Payments Committee.66 A detailed list of China’s submissions is

included in Appendix 1.

 

66 See Transitional Review Mechanism Pursuant to Paragraph 18 of the Protocol of Accession of the People's

Republic of China to the World Trade Organization - Report of the Chairperson to the General Council,

WT/BOP/R/68 (29 November 2002); Report of the Meeting of 18 November 2002, WT/BOP/R/69 (28

November 2002).
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Article 18 and Annex 1A do not specify the format that China should follow in preparing

information submissions. China therefore made the initial determination as to how substantial

and detailed the information would be that it submitted. Except for economic data (such as trade

statistics, capital account data, current account data, tariff revenue, etc.) and a few areas which

could be quantified (such as market access changes in service sectors), most of the information

required consisted of a literal introduction of relevant trade regimes and policies, or a description

of the status of implementation efforts by China on specific commitments.

Examples of information submissions by China are presented below. The first deals with

the pricing mechanism of China's state trading enterprises for export products:

II. Economic Policies

4. Pricing Policies

(b) Pricing mechanism of China’s state trading enterprises for export

products

The Pricing Law of the People’s Republic of China stipulates that state pricing and

government guidance pricing only apply to products and services as published, regardless

of the ownership of the enterprises. Prices of products and services that are not subject to

state pricing and government guidance pricing shall be determined by the market, and

eventually by the enterprises themselves. Pricing mechanism of state trading enterprises

for exports is also determined by the enterprises with reference to the price of international

market. It is generally set by adding cost of distribution (including cost of storage and

transportation, interest rate and inspection fees etc.) to the cost of domestic purchase.67

A second example details the efforts that China made to increase the use of international

standards as the basis for its technical regulations:

 

67 Transitional Review under Article 18 of the Protocol of Accession of The People’s Republic of China -

Information Required in Annex 1A, G/SCM/N/92 (31 October 2002).
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IV. Policies Affecting Trade in Goods

7. Technical Barriers to Trade

(f) progress report on increase of the use of international standards as the

basis for technical regulations by ten per cent in five years

China committed to increase 10% of its technical regulations taking international standards

as the basis. In order to meet this commitment, China is now developing a nationwide

programme and annual implementation plan. A nationwide meeting was convened

specially for promoting the alignment with international standards and advanced foreign

standards. The meeting was attended by more than 30 vice-minister level officials and

addressed by the State Councilor Madame WU Yi. To encourage the adoption of

international standards, AQSIQ, jointly with other 6 ministries and commissions, published

Opinions on Promoting Alignment with International Standards to actively encourage the

adoption of international standards. Harmonization of standards has become an important

technical foundation for the development of national economy and safeguard for enhancing

the overall level of product quality and the competitiveness in domestic and world market,

for expanding foreign trade and for maintaining the sustainable, healthy and quick

development of the Chinese economy.

The Chinese Government has taken standardization as one of the main strategies for

scientific and technological development so as to ensure that international standards are

scientifically and promptly adopted. The specific requirements for use of international

standards as the basis for technical regulations are: (1) To timely revise the mandatory

standards based on relevant international standards once the international standards have

been revised, and adopt the newest edition of the international standards; (2) If new

mandatory standards or revision of the established ones are necessary, international

standards should be used as the basis for both preparation and revision if appropriate; (3)

On average there will be an annual 2% increase use of international standards as the basis

for technical regulations in five years so that the commitment of 10% increase in 5 years

will be definitely met.68

In areas where no actions had been taken, in its submission, China simply reconfirmed its

determination to fulfil the particular commitment. The following is an example of this kind of

response.

 

68 Transitional Review under Article 18 of the Protocol of Accession of The People’s Republic of China -

Submission by the People's Republic of China, G/TBT/W/190 (16 October 2002).
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IV. Policies Affecting Trade in Goods

8. Trade-Related Investment Measures

b. Amendments to ensure lifting of all measures applicable to motor vehicle

producers restricting the categories, types or models of vehicles permitted

for production (to be completely removed two years after accession)

The Chinese government shall completely lift the said measure in line with the

commitment made with respect to the timeframe, so as to ensure that motor vehicle

producers have right to choose categories, types or models of vehicles they will produce.69

At the TRM reviews conducted by a committee to which China submitted information

under Annex 1A, China highlighted its efforts in preparing the submission, noted that it had paid

special attention to the written questions from certain Members, and expressed its belief that the

information it provided appropriately addressed the concerns raised by these Members.

In response to China's submissions, Members generally expressed their appreciation and

commented that the information represented a good start to an overall understanding of the

compliance efforts made by China. Typically, Members raised few questions regarding the

details in China's information submission. This was due to the fact that, in most cases, Members

received China's submission only a few days before the TRM review, and, hence, did not have

sufficient time for an in-depth examination and analysis prior to the review. Members such as

the US and the EC, however, reserved their right to put forward further questions or requests for

clarification to China.

Section 18.2 of the Protocol of Accession stipulates that China shall provide information

specified in Annex 1A to relevant committees "in advance of the review." However, that

provision does not define "in advance of the review." Annex 1B, titled "Issues to be addressed

 

69 Id.
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by the General Council in Accordance with Section 18.2 of China's Protocol of Accession,"

appears to set a timeframe for China's submission by providing that "China shall submit any

information and the documentation relating to the review no later than 30 days prior to the date

of the review." But, this provision would appear to apply only to China's submission to the

General Council, not to its submissions to the subsidiary bodies. In this regard, however, it

should be noted that China failed to observe the 30 day timeframe, as its submission to the

General Council dated November 19, 2003 was only 21 days prior to the General Council's

review on December 10, 2003. 

As for the information that China submitted to the other committees or councils, the

information was received by the committees or councils, on average, 3 days in advance of the

TRM review. At the Council for Trade in Goods, the United States made the following

comments:

The representative of the United States said that the information

provided was precisely the type of information warranted under the

TRM. It would have been helpful to have had information further

in advance of the meeting. The US did not have all its experts

present to review the Annex 1A submission from China which it

had just received and it was difficult to respond to the points made

in China's statement at this meeting, not having had the

information in advance.70

On one occasion, at the Market Access Committee's review, Members raised specific

concerns with respect to the information required under Annex 1A. There, Australia noted with

interest the information provided in sections (i), (iii) and (iv) concerning China's administration

 

70 Report of the Council for Trade in Goods on China's Transitional Review, Council for Trade in Goods,

G/L/596 (3 December 2002) at para. 3.27.
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of tariff rate quotas, i.e., the volume of TRQs made available, the volume of requests for

allocations denied, and the fill rates of tariff rate quotas by July 31, 2002. Australia observed:

[W]ith the exception of wool, all agricultural product tariff quotas

were oversubscribed and in most cases the volume of requests for

allocation denied were several times the volume of tariff rate quota

available. By comparison, and notwithstanding that they cover the

period to 31 July, the fill rates for some products were shown to be

extremely low. His delegation {i.e. the Australian} asked China

for a general comment on why it considered the fill rates were

generally so low given the heavy oversubscription of many of the

tariff rate quotas.71

China responded with the following explanation:

It was the first year of China's accession and many applicants

wanted to get more quotas and the quantity asked by the applicants

was much more than the quantity China had committed to under its

WTO commitments. So that was why there was a discrepancy,

and the low fill rate for certain products was because of the

situation of demand and supply in the market. So China could not

control the fill rate, it could only guarantee the full allocation of

the quotas.72

(c) Willingness of China to respond to questions in writing

Annex 1A of the Protocol of Accession is titled "Information to be Provided by China in

the Context of the Transitional Review Mechanism." Under Section VII of Annex 1A, China is

required to provide a "response to specific questions in the context of the transitional review

mechanism received from the General Council or a subsidiary body." In the first TRM, there

was an intense debate over whether China should respond in written form to questions from

other WTO Members in advance of the review. Members such as the United States, the EC and

 

71 Minutes of the Meeting Held on 23 September 2002, Committee on Market Access, G/MA/M/33 (19

November 2002) at para. 8.46.
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Japan considered written responses as essential to a meaningful review and effective monitoring

and argued that China should provide timely and written responses. In response, China took the

position that written answers were not required, and that to provide them would be going beyond

the mandate of paragraph 18 of the Protocol of Accession, which does not specifically spell out

the form that China's responses should take. Generally, China's approach was to address

Members' concerns and questions orally at the committee meetings.

The debate over written responses began at the Market Access Committee meeting on

September 23, 2002. At that review, Members expressed disappointment over China's

inadequate oral responses to their questions and requested prompt written answers. China argued

in response that there was no legal obligation to provide answers in written form and the

information it had submitted appropriately addressed the concerns raised by Members. China

pointed out that although at that meeting "Members had to finalize China's transitional review

mechanism on market access, ... other channels for the exchange of information were open."73 In

a gesture of goodwill, China proposed to convene an informal meeting to address outstanding

issues outside of the TRM process. In the end, however, China's proposal was withdrawn as

Members insisted on pursuing formal opportunities to continue the discussion as part of the

formal record of the TRM process.

A similar debate occurred in other committee reviews as Members continued to urge

China to submit written responses in a timely manner in order to achieve a useful review. In

addition, Members pushed for procedures to allow an extended process of questions and

 72 Minutes of the Meeting Held on 23 September 2002, Committee on Market Access, G/MA/M/33 (19

November 2002) at para. 8.47.
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answers. Members complained that they did not have sufficient time to digest the information

and oral responses provided by China at the committee meetings. Such Members did not

consider the review completed until there were opportunities to pose further questions in the

context of the TRM. At the Antidumping Practices Committee, China reiterated its position in a

comprehensive manner with respect to the procedural issues dispute, and again restated its

position at the Services Council, which is summarized as follows:

• Paragraph 18 of the Protocol of China's Accession serves as the only legal

basis governing the TRM exercise, and no one in the room could justify a

request for written responses from that paragraph. It is not the mandate of this

Committee to interpret the paragraph.

• The information provided prior to the meeting, at the meeting and the

explanations provided, are sufficient for a meaningful review. The statement

made by the head of the Chinese delegation will be submitted to the

Secretariat and Members can get copies for transparency purposes.

• Members who have any follow-up questions might approach experts present

at the review, and China would hold informal bilateral discussions with them.

Informal bilateral contacts have nothing to do with the TRM, and China is not

intending to substitute this for the multilateral exercise, but to supplement the

multilateral exercise.

• The questions could not be exhausted by one TRM. A TRM is an 8-10 year

programme, and China does not expect to graduate from an 8-10 year program

in one year, so there will be many more opportunities, multilateral and

bilateral.74

At the meetings of the Council for Trade in Goods held on November 22, 2002, and of

the General Council on December 10, 2002, the EC, joined by Japan and the United States,

called for more orderly procedures, such as a fixed timetable for the transmission of questions

 73 Minutes of the Meeting Held on 23 September 2002, Committee on Market Access, G/MA/M/33 (19

November 2002) at para. 8.52.

74 Chairman's Report to the Council for Trade in Goods on Transitional Review of China, Committee of

Antidumping Practices, G/ADP/8 (18 November 2002) at paras. 57 and 64.
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and replies, to be put in place to make the TRM more productive and efficient in the years ahead.

The EC argued that the TRM should follow the common rules and practices in the WTO to

ensure that questions and replies were exchanged in writing in advance of a committee's

meeting.75 In response, China reiterated that the TRM had been successful in providing a useful

and effective channel for information exchange and mutual understanding between China and

other Members, but that China would not agree to any request for a practice beyond the

provisions in the Protocol, such as a request for written replies to Members' questions.76

(d) Nature of the reports provided

According to article 18.1 of the Protocol of Accession, "each subsidiary body shall report

the results of [the TRM] review promptly to the relevant Council established by paragraph 5 of

Article IV of the WTO Agreement, if applicable, which shall in turn report promptly to the

General Council." As to the nature and substance of the report, the Protocol provides no

guidance. During the first TRM, the subsidiary bodies developed a unified approach in

preparing their reports. They prepared factual reports, with references to the documents

concerned and attached relevant portions of the minutes of the TRM meeting that related to the

transitional review. The minutes of the committee meetings reflect the discussions, statements,

questions, and responses raised by the Members.

In the first TRM, the form of the committees' reports was not a topic of debate, except to

the extent that some Members sought general clarifications. At the Council for TRIPS, Japan

 

75 Minutes of the Meeting on December 10, 2002, General Council, WT/GC/M/77 (13 February 2003) at para. 34.

76 See, e.g., Report of the Council for Trade in Goods on China's Transitional Review, Council for Trade in

Goods, G/L/596 (3 December 2002) at para. 3.7.
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emphasized that the report needed to actually reflect the review and provide necessary

information for the General Council's to review in order to decide whether to make

recommendations. At the Committee on Market Access, Japan raised the following concern as

to the nature of the report and the minutes of the meeting:

She {i.e., Japan's representative} had understood the Chairman as

stating that the minutes of his meeting would reflect the

discussions, statements, and sentiments raised by delegations under

this agenda item. Was her understanding correct that the report

itself would not reflect the more detailed parts of the substantive

discussions or the sentiments raised by the delegations such as the

point that there may have been some differences of interpretation

of the TRM exercise, and that instead, the report would be a very

simple description of the factual exchanges.77

The Chairman responded that:

[I]n his own assessment, if the Committee were to try and make

the report as comprehensive as possible, it ran the risk of trying to

interpret what Members had said. This meant that the Committee

would have to come back to clear that report which would be a

never ending process because consensus would not be possible on

what was said by some delegations at this meeting. That was the

reality. On the other hand, the minutes would reflect in a factual

manner what had transpired at this meeting. The report would

outline that the agenda item was considered but for more

substantive coverage of the proceedings the minutes would need to

be referred to.78

Given the approach of the committees to the nature of their reports, it was not surprising

that the final committee reports did not contain any recommendations as to how China could

 

77 Minutes of the Meeting Held on 23 September 2002, Committee on Market Access, G/MA/M/33 (19

November 2002) at para. 8.64.

78 Minutes of the Meeting Held on 23 September 2002, Committee on Market Access, G/MA/M/33 (19

November 2002) at para. 8.65.
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improve its compliance efforts. A press report at the time reflected the low expectations for the

TRM reports:

[T]he 16 WTO committees that are now working on various parts

of the overall review might only be able to issue a report that

consists of minutes of various public meetings, the official said.

He added that as of now, it appears unlikely that China would

agree to a report that includes any finding that China has fallen

short on implementation.

Each report from the 16 WTO committees must receive unanimous

consent, meaning China could block the adoption of any report that

it finds objectionable.79

Although paragraph 18 of the Protocol provides that the General Council may make

recommendations, no recommendations were generated in the final WTO report by the General

Council on the basis of the reports of the 16 subsidiary bodies. Like the committees' reports, the

General Council's report required unanimous consent. To the extent that China found any

language in the reports unacceptable, it could block adoption. At the end of the first TRM, the

committee reports were quietly adopted without controversy.

World Trade Organization members this week quietly and without

fanfare adopted the first transitional review mechanism (TRM)

report on China’s implementation of its WTO obligations, offering

light and generally unspecific criticism of how China performed in

the first year of its membership.

* * *

The final WTO report, as anticipated, consisted of the minutes of

meetings from the 16 WTO subsidiary bodies that analyzed

China’s compliance efforts over the year. Absent from the final

package was any recommendation that China improve its efforts in

future TRMs, which are to go on for eight years with a final review

scheduled in the tenth year.

 

79 US has low expectations for WTO review of China Trade Compliance, INSIDE US-CHINA TRADE, August 21,

2002.
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Trade sources noted that China’s WTO accession package requires

the TRM process, but says only that the General Council “may”

make recommendations. A WTO spokesman said there had been

no visible push from WTO members to have the report make

recommendations for how China could improve its implementation

record, or to have some kind of cover statement for the report.

Several trade sources chalked this up to countries’ expectation that

China would simply reject any recommendation or summary that

criticized its performance on implementation in any way."80

(e) Issues identified by WTO Members

In the context of the first transitional review, 13 WTO members submitted a total of 74

documents to the 16 WTO subsidiary bodies. With a view to conducting an across-the-board

examination of China's compliance efforts in light of the fundamental WTO principles of mostfavored nation, national treatment, transparency, and consistency, the submissions of the 12

Members presented comments and raised questions regarding China's first year implementation

of its WTO commitments. (Appendix 3 contains a summary table of submissions of questions to

China by other WTO Members and Appendix 5 contains a listing of questions and concerns

raised by WTO Members in each committee).

The following table shows the number of submissions of questions by WTO Members to

the relevant committees and councils in the second TRM.

 

80 WTO quietly approves China's first compliance review without recommendation, INSIDE US-CHINA TRADE,

December 11, 2002.
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Final Report, March 19, 2004 Page 87

ARG AUS CAN CHE EEC FRA JPN KOR MEX THA TPKM TUR USA

Agriculture 1 1 1 1 1

Antidumping Practices 1 1 1 1 1 1

Balance of Payments Restrictions 1 1

Customs Valuation 1 1

Financial Services 1 1 1 1 1

Import licensing 1 1 1

Market Access 1 1 1 1 1

Rules of Origins 1

Safeguards 1 1 1 1 1 1

Sanitary and Phytosanitary Measures 1 1 1

Subsidies and Countervailing Measures 2 2 1 1 2

Technical Barriers to Trade 1 1 1 1

Trade-Related Investment Measures 1 1 1 1

Council for Trade in Goods 1 1 1

Council for Trade in Services 1 1 1 1 1

Council for TRIPS 1 1 1 3 3 1 2

Subtotal by Country 1 2 5 1 18 1 15 2 1 1 10 1 16 Total 74

Notes: 

ARG = Argentina; AUS = Australia; CAN = Canada; CHE = Switzerland; EEC = The European Communities; FRA = France; JPN = Japan; KOR = Korea; 

MEX = Mexico; THA = Thailand; TUR = Turkey; USA = The United States of America; 

TPKM = The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 

3

12

3

8

Summary Table of Submissions of Questions to China by WTO Members in the Context of the First TRM

5

6

Committee 

Subtotal

1

6

Number of Submissions by Concerned Members Committees / Councils 

5

3

4

2

2

5

5

4

Despite a few success stories noted and a general recognition of China's first-year efforts,

Members expressed numerous concerns, with an emphasis on the following areas: (i) intellectual

property rights protection; (ii) tariff rate quota administration; (iii) auto quota administration; (iv)

tariffs; (v) VAT administration; (vi) subsidies; (vii) transparency; and (viii) services. These

areas are reviewed below.

i. Intellectual property rights protection (IPR)

At the TRIPS Council, 7 WTO Members presented China with nearly 200 questions

respecting the actions it had taken to protect and enforce IPR. While applauding China's efforts

to improve the IPR regime, Members strongly complained that China had made little genuine

progress, as IPR violations were still rampant in China. The following is a summary of urgent

IPR problems noted by the Members.
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3⁄4 The level of piracy and counterfeiting remains extremely and unacceptably

high. Damages are growing serious and export of infringing goods to third

countries is beginning to have negative effects on international trade.

3⁄4 Regarding IPR enforcement:

• in criminal procedures, China should strengthen criminal penalties and

amend guidelines for criminal prosecution;

• in administrative procedures, China should raise the upper limit of

administrative penalties;

• in judicial procedures, China should reconsider provisions regarding

compensation for losses so that judicial recourse would become more

attractive.

3⁄4 China should also strengthen cooperation among different enforcement

authorities and eliminate local protectionism.

3⁄4 China should completely destroy seized infringing goods, in order to prevent

repetition of counterfeit crimes, and should not charge a fee for destruction

from the rights holders.

3⁄4 China Customs should be empowered to transfer serious cases they discover

to prosecutors for criminal investigation and prosecution. Both the high bonds

and storage fees that are requested by the Chinese customs authorities are

responsible for deterring many IP owners from recording their rights with

Customs. Such bonds should be lessened.

3⁄4 For the protection of well-known trademarks, foreign well-known trademarks

are not given equal treatment with Chinese trademarks. The Chinese

Trademark Office, with the issuance of the new Trademark Law and the

Implementing Regulations, should begin processing applications for foreign

well-known trademarks.

3⁄4 For patent/trademark application, China should eliminate a requirement under

its Patent Law and Trademark Law that foreign applicants carry out

procedures to obtain patent/trademark rights in China through representative

offices designated by the Chinese Government as those for foreign applicants.

This provision is in violation of the national treatment principle under

TRIPS.81

 

81 Minutes of Meeting Held in the Centre Williams Rappard on 17-19 September 2002, Council for TRIPS,

IP/C/M/37/Add.1 (8 November 2002) at paras. 25-60. It should be noted that the TRIPS Council's TRM

meeting in the first TRM was held in combination with its normal review of China's TRIPS implementing

legislation. As such, most of the issues and concerns addressed at that meeting related to the normal review of

China's TRIPS implementing legislation rather than to the TRM per se. Nevertheless, the questions and

concerns raised in that context are relevant as well to China's compliance with its TRIPS commitments.
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ii. Tariff rate quota administration (TRQ)

China's administration of its tariff rate quotas was a high profile topic during the first

TRM. As highlighted in Members' written submission and oral presentations, TRQ

administration in China fell far short of China's commitment to ensure that TRQs are

administered:

on a transparent, predictable, uniform, fair and non-discriminatory

basis using clearly specified timeframes, administrative procedures

and requirements that would provide effective import

opportunities; that would reflect consumer preferences and enduser demand; and that would not inhibit the filling of each TRQ.82

The following is a summary of Members' allegations of major violations of China's TRQ

commitments as noted during the first TRM:

3⁄4 China reserves a portion of TRQs to entities that process commodities for reexport. This sub-quota system is not based on consumer preferences and enduser demand but on the government's subjective and non-transparent

assessment of demand for processing.

3⁄4 China has failed to provide a list of quota holders which is important for

exporters to identify potential business partners and verify China's efforts to

fill up quota shares.

3⁄4 China requires quota-holders to provide detailed, time-sensitive commercial

information, such as price and origin, prior to obtaining an import license.

These requirements unduly restrict end-users' ability to adjust to market

conditions and to operate based on commercial considerations.

3⁄4 Procedures in China for importers to apply for TRQs and receive TRQ

certificates are cumbersome. The end users need to apply to SDPC twice for a

single allocation - once for the initial allocation and a second time for SDPC's

approval to use that allocation on the condition that the importer has a signed

contract. Quota-holders are then required to apply for and obtain, at both the

 

82 Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001) at para. 116.
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local and national level, an additional import license from AQSIQ before the

product can be imported.

3⁄4 China committed to TRQ allocations that would be made in commerciallyviable shipping quantities. Reports from traders, however, indicate that some

allocations are in commercially-nonviable amounts.

3⁄4 The 2002 TRQ allocation was delayed until May, which caused significant

disruption and uncertainty to trade. 83

iii. Auto quota administration

As with the agricultural TRQs, during the TRM, Members complained of the lack of

transparency in China's auto quota allocation. They said that China failed to provide information

about the importers that were granted allocations or about the breakdown between automobiles,

auto kits requiring assembly in China, and parts (e.g., engines). The discrepancy between the

quota actually allocated and the quota officially announced was a subject of debate. China had

stated at the Market Access TRM that the entire $7.9 billion quota would be allocated in 2002,

and that, by August 2002, $4.8 billion of the quota had been filled. However, Japan estimated

that from April 2002, when the quota opened, to July 2002, only $1.3 billion in auto exports had

entered China.84

iv. Tariffs

With respect to tariffs, at the Market Access TRM, Members complained that China had

not adhered to the its bound ad valorem rates for some products in China's tariff schedule. In

particular, Japan challenged China to justify the practice of assessing duties on photographic film

 

83 See, e.g., Questions to China from the United States in the context of the Transitional Review Mechanism

pursuant to Section 18 of the Protocol of Accession of the People's Republic of China, G/AG/W/51 (10

September 2002) & G/AG/W/51/Add.1 (7 October 2002).

84 Minutes of the Meeting Held on 23 September 2002, Committee on Market Access, G/MA/M/33 (19

November 2002) at paras. 8.21 and 8.26.
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on a square meter basis, which, Japan claimed, boosted the actual tariff duties above the bound

rates.85 In addition, Canada asked China to supply a timeline for replacing its variable duty for

newsprint with an ad valorem rate.86

v. VAT administration

The TRM process raised a host of issues concerning China's VAT regime. The focus of

Members' allegations was that China administered the VAT tax in a discriminatory manner,

violating the requirement in Paragraph 2 of Article III of GATT 1994 that a WTO Member

cannot impose taxes on imported products that are greater than those imposed on domestic

products. The following VAT problems were identified at the TRM:

3⁄4 China exempts all phosphate fertilizers except DAP from China's VAT,

because DAP, according to the US, a product produced in the US, competes

with similar phosphate fertilizers produced in China, such as MAP.87

3⁄4 China exempts from the VAT all nitrogen fertilizers except urea, while

allowing a partial VAT rebate for domestic producers of urea.88

3⁄4 China charges domestically produced wheat and corn a maximum of 3%

VAT, whereas imports of both commodities are subject to 13% VAT.89

3⁄4 As part of the support program for the integrated circuit industry, China is

rebating 40 percent of a value-added tax to companies that export a certain

percentage of their production. China also appears to reduce the value added

tax charged to IC producers.90

 

85 China's Transitional Review - Communication from Japan, Committee on Market Access, G/MA/W/34 (30

August 2002).

86 China's Transitional Review - Questions from Canada, Committee on Market Access, G/MA/W/36 (12

September 2002).

87 China's Transitional Review Mechanism - Questions from the United States to China Concerning Market

Access, Committee on Market Access, G/MA/W/35 (August 30, 2002) at para. 19.

88 Id.

89 China's Transitional Review Mechanism - Questions to China from Canada, Committee on Agriculture,

G/AG/W/52 (16 September 2002).

90 Questions posed by the United States to the People's Republic of China, Committee on Subsidies and

Countervailing Measures, WTO Document G/SCM/Q2/CHN/2 (18 October 2002) at para. 7.
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vi. Subsidies

During the TRM, the United States stated that China's continued export subsidies for corn

raised a serious concern about whether China had complied with its WTO commitments to

eliminate export subsidies on agricultural products. As noted by the US, according to some

market reports, China had been selling corn in the world market at prices that were US$ 20-30

per ton less than the world price.91

vii. Transparency

At many committees during the TRM, Members complained about China's poor record of

providing opportunities for public comment before new or amended laws and regulations became

effective. China agreed as part of its accession commitments to provide a reasonable period for

comment to the appropriate authorities before such measures were implemented.92 However,

Members alleged that China implemented the majority of its new laws and regulations without

receiving comments by WTO Members and allowed only a very short comment period for a

limited portion of new laws.93

viii. Services

Numerous concerns were raised at the first TRM with regards to China's implementation

of its commitments in opening up various service sectors. The following summaries review a

number of service sectors concerning which Members made comments.

 

91 Questions posed by the United States to the People's Republic of China, Committee on Subsidies and

Countervailing Measures, WTO Document G/SCM/Q2/CHN/2 (18 October 2002) at para. 11.

92 Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001) at Item 2.C.2.

93 TRM China - Financial Services - Canada's Questions to the People's Republic of China, S/FIN/W/20 (1

October 2002) at para. 13.
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Banking

The Chinese banking sector is generally viewed as a sector that could not survive open

foreign competition. USTR noted in its 2002 report to Congress on China's WTO compliance

that, since accession, China has decided to exercise extreme caution in opening up the banking

sector.

At the TRM, Members charged that Chinese regulations in the banking sector issued

shortly after accession undermined the market access opening for foreign banks. In particular,

Members strongly opposed China's capital requirements for foreign banks' headquarters and

branches on the basis that they far exceeded the international norms. According to China's

Regulations on the Administration of Foreign Financial Institutions, and the implementing rules,

capital requirements per branch range from RMB 100 million to RMB 600 million depending on

business scope (the latter amount applying to entities carrying out the full range of banking

services, with corporations and individuals, in RMB and foreign currency).94

Members were also concerned about restrictive provisions in the pending Regulations on

Interbank Borrowing. The draft of the regulations, issued in November 2002, stipulates that no

more than 40 percent of local currency liabilities of foreign banks can be financed by borrowing

from Chinese banks. Members argued that this cap could severely hamper the ability of foreign

banks to provide loans in Chinese currency, especially those banks that are not planning to

establish large RMB deposit bases. 95

 

94 See, e.g., Communication from the European Communities and their Member States - TRM China - Financial

Services, S/FIN/W/18 (23 September 2002) at para. 3.

95 See, e.g., TRM China - Financial Services - Canada's Questions to the People's Republic of China,

S/FIN/W/20 (1 October 2002) at para. 7.
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Insurance

Prior to China's entry into the WTO, access to China's insurance market was a thorny

issue for foreign insurance service providers. A common complaint was that qualified insurance

companies were unable to acquire a license. Upon China's accession, foreign insurers were

poised to capitalize on China's market access commitments, but many have continued to

complain about the restrictions in China's regulatory mechanism for the insurance sector. During

the TRM at the Committee on Financial Services, the United States, joined by Japan, the EC and

Canada, raised the following concerns:

3⁄4 The China Insurance Regulatory Commission (CIRC) takes the position that

non-life firms already established in China, wishing to open branches, cannot

do so unless they first establish as a subsidiary. China's insistence that

subsidiaries be first established goes against the commitment to allow non-life

insurance firms to establish as branches and to allow sub-branching in

accordance with the lifting of the geographic restrictions.

3⁄4 China is requiring a multi-step application process for the establishment of

insurance companies, which goes against China's commitment not to impose

licensing requirements that act as a barrier to market access. China's

Insurance Regulatory Commission still asks foreign companies to apply for a

license, a step which China should remove from the process.

3⁄4 The capital requirement for foreign insurance companies is unreasonably high,

given the size and scope of China's insurance market. 96

Auto Financing

China committed to allow foreign companies to provide auto financing in China upon

accession, that is, starting December 11, 2002. China, however, has been lagging in issuing the

final regulations on auto financing. At the TRM in the Committee on Financial Services, the

 

96 See, e.g., Transitional Review Mechanism Pursuant to Section 18 of the Protocol on Accession of the People's

Republic of China - Questions from the United States to China Concerning Financial Services, S/FIN/W/19 (1

October 2002).
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Final Report, March 19, 2004 Page 95

United States and Japan pushed China for a timeline on finalizing the rules, which they viewed

as critical to ensuring de facto market access for foreign auto suppliers in China.

Express Courier

After WTO accession, China issued two notices concerning express delivery services.

The first, Notice No. 629, was issued on December 24, 2001 by MII, MOFTEC and SPO. The

second, Notice No. 64, was issued in February 2002 by the SPO. Members, such as the United

States, alleged that these notices placed restrictions on the operation of foreign express delivery

companies in China and ran counter to China's commitment not to roll back on the level of

market access for services that existed prior to accession.97

On September 5, 2002, MII, MOFTEC and SPO issued a new notice, No. 472, which was

similarly criticized at the Service Council TRM. The new notice (i.e., Supplemental Notice on

the Engagement in Postal and Delivery Services for Cross-border Letters and Material of Letter

in Nature) requires that foreign-invested express couriers already licensed by MOFTEC now

obtain entrustment certificates from the postal authorities. The US and the EC both challenged

China on the rationale for the entrustment requirement in light of China's commitment not to

reduce market access by imposing conditions on ownership, operation or scope of activities that

are more restrictive than those that were in place before accession.98

 

97 US to Raise Two China Problems in WTO Services Council Next Week, INSIDE US-CHINA TRADE, March 13,

2002.

98 See, e.g., Transitional Review Mechanism Pursuant to Section 18 of the Protocol on the Accession of the

People's Republic of China - Questions from the United States to China Concerning Services, S/C/W/212 (1

October 2002) at paras. 14-18.
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Legal Services

Two legislative enactments govern the opening up of the legal services sector in China.

They are the Regulations on the Management of Representative Offices of Foreign Law Firms

(promulgated December 27, 2001) and the implementing rules (issued July 4, 2002). These two

laws were subject to a litany of criticism during the TRM with respect to China's accession

commitments. Members, such as the US and the EC, charged that the new regulations imposed

limitations on the activities of representative offices which appeared to be more restrictive than

provided for in China's services schedule. Their complaints included the following points:

3⁄4 Article 4 of the Regulations gives the Ministry of Justice permission to

determine whether there is a need for a representative office based on demand

and other factors. This provision violates prohibitions in GATS against

imposing economic needs tests in a service sector in which a Member has

made market access commitments.

3⁄4 Article 9 of the Regulations allows the relevant authorities a total of nine

months to consider an application to establish a representative office in China.

This period is excessively long, given the requirement in the service schedule

that "Decisions would be taken promptly on all applications."

3⁄4 Article 18 of the Regulations prohibits a representative from assuming

representation in two or more representative offices, which increases the

burdens on foreign law firms.

3⁄4 Article 10 of the Implementing Rules requires that the most recently

established representative office of a foreign law firm has practiced for three

years before the firm may apply to open another representative office. This

provision is not consistent with China's commitment to remove quantitative

limitations on foreign law firms within one year after accession.

3⁄4 Article 33 of the Implementing Rules potentially restricts the ability of foreign

law firms to advise their clients on the impact of the Chinese legal

environment, further limiting the already limited business scope. For the

definition of information on the impact of the Chinese legal environment, they
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 97

give a very restrictive interpretation by which specific opinions or

determinations on the application of PRC law may not be provided.99

3. Experience in the second review

(a) Procedural changes if any

When the first TRM was concluded, some Members expressed the hope that efforts

would be made to improve the process for the second TRM, especially with respect to the

submission of questions and responses. However, no Member put forward any specific plan to

develop new procedures for a more efficient and smooth TRM process. The likely reason that no

such proposals were put forward is that, because consensus is required among WTO Members to

bring any changes to the existing process, China, likely, would have opposed any steps to tighten

the process, as the following press report illustrates:

More specifically, informed trade sources this week said that China

has made it very clear that it would oppose any move to tighten the

TRM process next year or any time in the future. In addition, these

sources said, China has a clear preference for easing the TRM

process if possible, which could be done by folding it into the

regular Trade Policy Review Mechanism (TPRM). This process is

a largely formalistic exercise in which the WTO secretariat

prepares a report on a country’s trade system and the country then

provides its own presentation of its trade rules to WTO

members.100

As anticipated, the second TRM proceeded in a manner very much like the first, without

any procedural changes. The review at each committee was conducted at, and limited to, a

regular committee meeting, where China explained the efforts it had made to honor its

 

99 Id. at paras. 3-11.
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obligations and provided oral responses to questions either submitted in advance of the review by

other Members or raised by Members at the meeting. Just as in the first review, China also

offered to hold informal consultations with Members to address any further concerns and

unresolved issues. The committee reports detailed the interaction among Members at the

meeting but issued no recommendations on China's compliance efforts.

As in the first TRM, Members expressed the view that the TRM process was one of great

importance. Taking into account the experience of the first TRM, Members such as the EC made

special efforts to ensure a more effective and meaningful review. As noted by the EC

representative at the Council for Trade in Goods:

The EC had decided this year to 1) as last year, transmit the

questions well in advance of each meeting (typically six weeks); 2)

focus on a limited number of priorities, and 3) raise only issues

discussed already a number of times in the WTO committees or in

bilateral meetings and therefore well-known to the Chinese side.

The objective of the EC was to have in each subsidiary body under

the Council for Trade in Goods a meaningful discussion and

detailed replies from the Chinese side to this limited number of

questions.101

Compared to the first TRM, there was less debate over procedural issues at the second

TRM. Recognizing the limitations in the existing TRM framework, and the unlikely prospect of

procedural changes, Members devoted more time and energy to the discussion of substantive

implementation issues. Nevertheless, the topic of written responses was again raised in a few

committees (e.g., AD, SCM, LIC). The United States raised the point that written questions and

answers were the most practical and appropriate form to accurately transmit technical

 100 WTO quietly approves China's first compliance review without recommendation, INSIDE US-CHINA TRADE,

December 11, 2002.
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information.102 China, in response, reiterated its position that there was no legal obligation to

provide written answers, and that the information it submitted in advance of the review and the

oral responses it gave at the meetings were sufficient for a meaningful review.103 

It is noteworthy that a new controversy arose at the Committee on Import Licensing

concerning whether responses by China were required at all.

A second representative of China said that, in his view, according

to Section 18 of the Protocol of accession under which the

transitional review was conducted, China had no obligation to

answer all the specific questions. He actually wondered if this

question and answer process had to be a part of this transitional

exercise at all and, therefore, wished that this transitional review be

conducted strictly in accordance with section 18 of the Protocol

rather than, as some Members requested, in a way that went

beyond Section 18. He hoped that the Chairperson as well as

Members would abide by this understanding.

* * *

Of course, if Section 18 clearly specified that questions and

answers had to be an integral part of this exercise, then China

would do it, but since Section 18 did not specifically say that,

China then had no obligation to take part in this so-called questions

and answers part of the exercise.104

The United States responded as follows:

The representative of the United States said that this was disturbing

for him, because, at least in his recollection, this was the first time

that this issue had arisen. As he had said before, there had been a

controversy in the past about written responses but he did not

recall there being a controversy with respect to providing oral

responses; in fact, he thought that in 2002 China had done a very

 101 Report of the Council for Trade in Goods on China's Transitional Review, Council for Trade in Goods,

G/L/664 (4 December 2003) at para. 3.3.

102 Chair's Report to the Council for Trade in Goods on Transitional Review of China, Committee on Subsidies

and Countervailing Measures, G/SCM/111 (18 November 2003) at Annex, para. 4.

103 Id. at Annex, para. 27.

104 Report to the Council for Trade in Goods on China's Transitional Review, Committee on Import Licensing,

G/LIC/11 (29 October 2003) at paras. 3.19 and 3.24.
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good job of trying to respond to all of the questions that were put

to it as part of the transitional review. It was clear that Section 18

of China's Protocol said that questions might be posed to China. It

did not specifically say that China had to answer those questions,

but there simply could be no other interpretation of the clear

intention of Section 18. What sort of exercise would Members be

engaged in if questions were allowed to be posed, but China was

free to simply ignore them? * * * He wished to state that he did

not want to make this a contentious exercise, but he felt that, under

Section 18 of the Protocol, Members had a right to receive

responses to the questions that Section 18 said they could pose.105

The debate on this new controversy was short-lived, however, as Members focused their

attention on more specific questions dealing with implementation issues.

(b) Data supplied by China at beginning of review

As with the first TRM, China submitted a large amount of information, as required under

Annex 1A of Paragraph 18 of the Protocol of Accession, to various subsidiary bodies in advance

of the second TRM. (A list of the Chinese submissions in the second TRM is attached in

Appendix 2.) The submissions do not differ from those during the first review in terms of

timing, format, and reactions from Member countries. With respect to substance, on some items

China provided no new information because policies or regimes had already been put in place to

fulfil certain commitments during the first year, while, on other items, China described its

ongoing efforts as some commitments phased in during the second year and others would be

phasing in soon.

Viewed quantitatively, a comparison of the information submitted in the first TRM with

the information submitted in the second TRM sheds light on the progress, if any, China has made

 

105 Id. at 3.25.
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in meeting certain WTO obligations, e.g., market access expansion. The following series of

tables summarize the information submitted in both reviews on the following issues: handling of

cases of non-uniform application of laws and regulations, tariff rate quota administration, method

of customs valuation, state of play in the licensing application in service sectors, and intellectual

property rights enforcement.

III. FRAMEWORK FOR MAKING AND ENFORCING POLICIES

1. Structure and Powers of the Government/Authority of Sub-Central

Governments/Uniform Administration

(b) establishment and operation (upon accession) of the mechanism pursuant to

Section 2(A), paragraph 4 of the Protocol under which individuals and

enterprises can bring cases of non-uniform application of the trade regime to

the attention of national authorities.

Time Period Cases of non-uniform application of laws, regulations, measures, etc.

Dec 2001-Oct 2002 33 cases brought; 9 resolved; 24 being processed, of which 1 is related to

trade

Nov 2002-Aug 2003 35 cases brought, among which 4 are relevant to trade and are under

consideration

Sources: Transitional Review under Article 18 of the Protocol of Accession of the People's Republic of China -

Information Required in Sections I and III of Annex 1A of the Protocol, WT/GC/68 (25 November

2002); Transitional Review under Article 18 of the Protocol of Accession of the People's Republic of

China - Information Required in Sections 1A of the Protocol, WT/GC/75 (5 December 2003).

IV. POLICIES AFFECTING TRADE IN GOODS

1. Tariff Rate Quotas

(a) Administration of TRQs on a transparent, predictable, uniform, fair and nondiscriminatory basis using clearly specified timeframes, administrative

procedures and requirements and evidence of a consistent national allocation

(and reallocation) policy

(iv) fill rates for the quota or TRQ (in %).
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Product 2002

(by July 31)

2003

(by Aug 31)

Product 2002

(by July 31)

2003

(by Aug 31)

Wheat 5.9 2.4 Cotton 7.6 72.8

Maize 0.1 0 Wool 37 36.6

Rice 3.3 4.1 Wool Top 30 24.5

Soybean oil 3.4 32.3 Urea 51.1 7.47

Rapeseed oil 2.2 6 NPK 23.5 50.7

Palm oil 34 60.8 DAP 77.2 33.34

Sugar 40 30.1

Sources: China's Transitional Review Mechanism - Information provided by China in accordance with

Annex 1A of the Protocol on the Accession of the People's Republic of China, G/MA/W/39 (19

September 2002); Transitional Review Mechanism Pursuant to Paragraph 18 of the Protocol on

the Accession of the People's Republic of China - Information Required by Annex 1 of the

Protocol, G/MA/W/52 (16 October 2002).

IV. POLICIES AFFECTING TRADE IN GOODS

9. State Trading Entities

(a) Progressive abolishment of state trading in respect of silk measures,

increasing and extending trading rights, granting the right to trade to all

individuals no later than 1 January 2005.

Time Period Number of enterprises engaged in export trade of silk

Dec 2001 - Nov 2002 Increased from 43 to 99

Dec 2001 - Nov 2003 Increased from 43 to 145

Sources: Transitional Review under Article 18 of the Protocol of Accession of the People's Republic of

China - Information Required in Annex 1A, G/C/W/438 (20 November 2002); Transitional

Review under Article 18 of the Protocol of Accession of the People's Republic of China -

Information Required in Annex 1A, G/C/W/474 (24 November 2003).

IV. POLICIES AFFECTING TRADE IN GOODS

4. Customs Valuation

(a) the use of valuation methods, other than the stated transaction value.
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Final Report, March 19, 2004 Page 103

Time Period Rate of applying transaction value in customs value determinations

Jan 2002 - Sept 2002 94.89%

Jan 2003 - July 2003 97.56%

Sources: Transitional Review under Article 18 of the Protocol of Accession of the People's Republic of

China - Information Required in Annex 1A, G/VAL/111 (11 October 2002); Transitional Review

under Article 18 of the Protocol of Accession of the People's Republic of China - Information

Required in Annex 1A, G/VAL/W/125 (24 September 2003).

V. POLICIES AFFECTING TRADE IN SERVICES

(e) foreign and domestic suppliers in sectors where specific commitments

have been undertaken indicating the state of play of licensing applications

on sector and sub-sector levels (accepted, pending, rejected).

State of play of licensing applications of foreign

services suppliers1

Approved Pending Rejected

Services sector or sub-sector

20022 20033 20022 20033 20022 20033

II. SPECIFIC COMMITMENTS

2 1. BUSINESS SERVICES

A. Professional Services

a. Legal Services (CPC861, excluding Chinese law

practices)

23 17 5 0 0 0

3 b. Accounting, auditing and bookkeeping services

(CPC 862)

c. Taxation services (CPC 8630)

17 9 1 4 0 0

4 d. Architectural services (CPC 8671)

e. Engineering services (CPC 8672)

f. Integrated engineering services (CPC 8673)

g. Urban planning services (CPC 8674)

1 13300

5 h. Medical and dental services (CPC 9312) 46 14 4 6 0 0

6 B. Computer and Related Services n.a.4 n.a. n.a. n.a. n.a. n.a.

7 D. Real Estate Services 0 n.a. 0 n.a. 0 n.a.

8 F. Other Business Services

a. Advertising Services (CPC 871)

26 10 0 0 0 0

9 c. Management Consulting services (CPC865) n.a. n.a. n.a. n.a. n.a. n.a.

10 e. Technical testing and analysis services (CPC 8676)

and freight inspection covered by CPC 749,

excluding statutory inspection services for freight

inspection services

8 01000

11 f. Services incidental to agriculture, forestry, hunting

and fishing (CPC 881 and 882)

n.a. n.a. n.a. n.a. n.a. n.a.

12 m. Related scientific technical consulting services

(CPC 8675)

- Onshore oil-field services

1 10000
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State of play of licensing applications of foreign

services suppliers1

Approved Pending Rejected

Services sector or sub-sector

20022 20033 20022 20033 20022 20033

13 - Offshore oil-field services, Geological, geophysical

and other scientific prospecting services (CPC

86751)

 Sub-surface surveying service (CPC 86752)

7 12100

14 p. Photographic services (CPC 875) n.a. n.a. n.a. n.a. n.a. n.a.

15 q. Packaging services (CPC 876) n.a. n.a. n.a. n.a. n.a. n.a.

16 s. Convention services (CPC 87909) 0 00000

17 t. Translation and interpretation services (CPC 87905) n.a. n.a. n.a. n.a. n.a. n.a.

18 - Maintenance and repair services (CPC63, 6112 and

6122)

- Maintenance and repair services of office machinery

and equipment including computers (CPC 845 and

886)

n.a. n.a. n.a. n.a. n.a. n.a.

19 - Rental and leasing services (CPC 831, 832 excluding

CPC 83202)

0 00000

20 2. COMMUNICATION SERVICES

B. Courier Services (CPC 75121,except for those

currently specifically reserved to Chinese postal

authorities by law)

35 16 6 10 0 0

21 C. Telecommunication Services 8 1 0 2 0 0

22 D. Audiovisual Services

- Video, including entertainment software and (CPC

83202), distribution services

- Sound recording distribution services

1 12200

23 - Cinema Theatre Services 4 2 0 1 0 0

24 3. CONSTRUCTION AND RELATED

ENGINEERING SERVICES

(CPC 511, 512, 513, 514, 515, 516, 517, 518)

1645 112 0 0 0 0

25 4. DISTRIBUTION SERVICES

A. Commission Agents’ Services (excluding salt,

tobacco)

B. Wholesale Trade Services (excluding salt, tobacco)

C. Retailing Services (excluding tobacco)

53 9 9 9 0 0

26 5. EDUCATIONAL SERVICES 50 36 2 0 0 0

27 6. ENVIRONMENTAL SERVICES n.a. n.a. n.a. n.a. n.a. n.a.

28 7. FINANCIAL SERVICES

A. Insurance services

9 3 n.a. 23 n.a. 0

29 B. Banking Services 58 7 16 34 18 0

30 - Motor vehicle financing by non-bank financial

institutions

0 00000

31 - Securities 10 0 4 4 1 0

32 9. TOURISM AND TRAVEL RELATED SERVICES

A. Hotels

n.a. n.a. n.a. n.a. n.a. n.a.

33 B. Travel Agency and Tour Operator (CPC 7471) 2 2 9 0 0 0
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Final Report, March 19, 2004 Page 105

State of play of licensing applications of foreign

services suppliers1

Approved Pending Rejected

Services sector or sub-sector

20022 20033 20022 20033 20022 20033

34 11.TRANSPORT SERVICES

A. Maritime Transport Services

- International transport (CPC 7211 and 7212 less

cabotage transport services)

H. Auxiliary Services

a. Maritime cargo-handling services (CPC 741)

d. Container station and depot services

e. Maritime agency services

B. Internal Waterways Transport

b. Freight transport (CPC 7222)

n.a. 0 n.a. 0 n.a. 0

35 C. Air Transport Services

d. Aircraft repair and maintenance services (CPC

8868)

351 1 10 0 9 0

36 - Computer Reservation System services 1 0 0 1 0 0

37 E. Rail Transport Services

- Freight transportation by rail (CPC 7112)

0 00000

38 F. Road Transport Services

- Freight transportation by road in trucks or cars (CPC

7123)

56 30 4 15 0 0

39 H. Services Auxiliary to all Modes of Transport

- Storage and warehousing services (CPC 742)

n.a. n.a. n.a. n.a. n.a. n.a.

40 - Freight forwarding agency services (CPC 748 and

749 excluding freight inspection)

35 16 6 10 0 0

Sources: Communication from the People's Republic of China - Notification under Section 18 of China's

Protocol of Accession to the Council for Trade in Services, S/C/W/218 (22 October 2002);

Communication from the People's Republic of China - Transitional Review Mechanism under

Section 18 of the Protocol on the Accession of the People's Republic of China - Information

required by Annex 1A, S/C/W/234 (1 December 2003).

Notes: 1. This table gives the state of play of applications of foreign services suppliers from the date of

China’s accession to the WTO until 31 July 2003.

2. The "2002" column covers the period from accession to July 31, 2002.

3. The "2003" column covers the period from August 1, 2002 to July 31, 2003.

4. n.a. = not available, due to lack of efficient statistics collection channel.

5. This particular number is the total approvals granted for foreign services suppliers in this sector,

instead of since China’s WTO accession.

VI. TRADE-RELATED INTELLECTUAL PROPERTY REGIME

(b) enhance IPR enforcement efforts through the application of more effective

administrative sanctions as described in the Report.
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Topics 2001 2002

Trademark law

enforcement

• Dealt with 41,163 cases in total,

among which 22,813 cases were

trademark infringements and 18,350

cases were in relation to other

violations

• Confiscated 250 million illegal

trademark signs and 14,004 moulds,

blocks and other tools directly used

for infringing production

• Destroyed 2227.74 tons of infringing

products; imposed fines totaling

RMB 210 million

• Transferred 86 cases to criminal

procedures, involving 88 people

• Dealt with 39,105 cases of all kinds

• Took over and removed 153 million

illegal marks; captured 14,882 pcs of

tools, such as mould and printing block

• Destroyed 4,183.64 tons of counterfeit

goods; imposed fines amounting to

RMB 214 million

• Transferred 59 cases to judicial

authorities to investigate criminal

liabilities, involving 78 people

• In the case of protection of undisclosed

information, investigated and dealt with

87 cases concerning infringing of trade

secrets (of which the total value

amounted to RMB 3,287,700),

confiscated RMB 27,200 and imposed

fines totaling RMB 1,881,800

Copyright law

enforcement

• Received 4,416 cases in total with

4,306 cases concluded; 3,607 cases

concluded with imposition of a fine

upon the infringer and 633 cases

concluded with mediation

• Transferred 66 cases to criminal

procedures

• Accepted 6,107 cases, among which

95.3% closed, 5,350 cases leading to

penalties, 721 cases settled through

intermediation

• Transferred 136 cases to judicial

proceedings

• Took over more than 67,900,000 pcs of

pirated products, including 20,020,000

volumes of books, 1,350,000

periodicals, 7,330,000 discs of

electronic publication, 5,960,000 discs

of software and other pirated products

6,150,000 pcs

Law

enforcement

at border

• Investigated and dealt with 330 cases

involving infringements with the

total value amounting to RMB

134,900,000; 297 cases involving

export and import goods bearing

counterfeit trademarks

• Investigated and dealt with 569 cases

involving infringement the total value

of which amounted to RMB 95,390,000

• The General Administration of

Customs verified, approved and

recorded 844 items of IPR protection at

Customs

Sources: Transitional Review Mechanism of China - Information Required in Annex 1A, IP/C/W/382 (16

September 2002); Transitional Review Mechanism of China, IP/C/W/415 (18 November 2003).
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(c) Issues identified by WTO Members

In the context of the second TRM, 7 Members submitted a total of 44 documents posing

questions to China respecting implementation of its WTO commitments in the second year of

WTO membership. This was a notable decline in the number of submissions of questions from

the first TRM (where there were 74 submissions from 13 Members). Many first-year

implementation issues were again subjects of serious concerns at the second TRM. Following

the first TRM, while progress was made in some areas, such as TRQ administration and

capitalization requirements in some service sectors, there was no positive action by China in

such areas as the auto quota, subsidies, and VAT administration. In addition, new concerns

arose as Year-2 commitments phased in, with trading rights topping the list. (A summary table

of submissions of questions to China by other WTO Members in the second TRM is contained in

Appendix 4; Appendix 6 contains a listing of questions and concerns raised by WTO Members

in each committee at the second TRM).

The following table shows the number of submissions of questions by WTO Members to

the relevant committees and councils in the second TRM.
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AUS CAN EEC JPN MEX TPKM USA

Agriculture 1 1

Antidumping Practices 1 1

Balance of Payments Restrictions 1

Customs Valuation 1 1

Financial Services 111 11

Import licensing 11 11

Market Access 11 1

Rules of Origins 1

Safeguards 1

Sanitary and Phytosanitary Measures 1 1 1

Subsidies and Countervailing Measures 1 1 1

Technical Barriers to Trade 11 1

Trade-Related Investment Measures 1 1

Council for Trade in Goods 11 1

Council for Trade in Services 1 1 1 1 1

Council for Trade-Related Aspects of Intellectual Property Rights 1 1 1 1

Subtotal by Country 1 1 10 9 1 9 13 Total 44

Notes: 

3

5

1

3

3

3

1

2

5

2

4

3

AUS = Australia; CAN = Canada; EEC = The European Communities; JPN = Japan; MEX = Mexico; USA = The United States of America; 

TPKM = The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 

 Summary Table of Submissions of Questions to China by WTO Members in the Context of the Second TRM

Committees / Councils Committee Subtotal

2

Number of Submissions by Concerned Members

4

1

2

The following is a summary of major concerns that were highlighted at the second TRM

with respect to the following areas: (i) trading rights; (ii) auto quotas and auto policy; (iii) tariff

rate quota administration; (iv) intellectual property rights protection; (v) subsidies; (vi) VAT

administration; (vii) China Compulsory Certification (CCC) system; and (viii) services.

i. Trading rights

At the Committee on Market Access, Import Licensing, and the Goods Council, the US,

EC and Japan voiced their concerns over China's implementation of its commitment to liberalize

trading rights. These members alleged that China had fallen behind with regard to its trading

rights commitments insofar as they related to foreign-invested enterprises. The major concerns

and questions raised included the following:

3⁄4 Under the Provisional Rules on the Establishment of Sino-Foreign Foreign

Trade Companies adopted by China in January 2003, China requires prior

experience for both the Chinese and foreign joint venture partners and
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Final Report, March 19, 2004 Page 109

imposes a minimum capital requirement, which go against China's

commitment under paragraph 83(a) of the Working Party Report.106

3⁄4 Do the Provisional Rules apply only to trading joint ventures, or all joint

ventures? Can joint ventures which were already established in China before

the Provisional Rules came into force obtain trading rights under the same

conditions as joint ventures established after the promulgation?107

3⁄4 What is the status of the revision to the Foreign Trade Law of China to reflect

China’s commitments on trading rights?108

3⁄4 What is China's schedule to implement its commitment to grant trading rights

for joint venture enterprises with majority share by December 11, 2003?

What is China’s schedule to implement the obligation to make trading rights

available automatically to all enterprises in China by December 11, 2004?109

ii. Auto quotas and auto policy

At the Committee on Import Licensing, Market Access, TRIMS, and the Services

Council, Members submitted a wide range of questions with respect to China's auto quota, auto

financing,110 and the planned new automobile industrial policy regarding which China had

circulated a draft for public comment in April 2003.

On auto quota:

3⁄4 The quota quantities allocated is much smaller than quantities officially

announced. According to Japan, only $3.85 billion of a $7.94 billion auto

quota from March 2002 to April 2003 had been filled, and based on imports in

 

106 See, e.g., Transitional Review Mechanism Pursuant to Paragraph 18 of the Protocol on the Accession of the

People's Republic of China - Questions from the United States to China Concerning Market Access,

G/MA/W/51 (13 October 2003).

107 See, e.g. China's Transitional Review Mechanism - Communication from the European Communities,

G/MA/W/49 (9 September 2003).

108 See, e.g., China's Transitional Review Mechanism - Communication from Japan, G/MA/W/50 (11 September

2003).

109 See, e.g., Transitional Review Mechanism Pursuant to Paragraph 18 of the Protocol on the Accession of the

People's Republic of China - Questions from the United States to China Concerning Market Access,

G/MA/W/51 (13 October 2003).

110 Questions regarding auto financing are discussed in section "viii. Services," infra.
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the first quarter of 2003, it appeared that only $4.84 billion of a $9.125 billion

quota for 2003 would be filled.

3⁄4 It is reported that China controls the number of import licenses to be granted

by category. Especially, the number of import licenses granted to cars of

2,000 cc or less displacement in the sedan category is small.

3⁄4 What is the status of the implementation in 2003 of the provision that the

number of quota holders not having imported their full allocation would

receive a proportional reduction in their quota allocation in the subsequent

year unless the quantity is returned for reallocation by September 1?111

On auto policy:

3⁄4 What is the status on the planned new automobile industrial policy and its

WTO compatibility?112

3⁄4 What is the justification for the provision in the draft policy that discourages

the importation of auto parts, and restricts imports of CKDs?113

3⁄4 What is the justification for the provision on automobile dealerships in the

draft policy that would require separate distribution networks for imported and

domestic automobiles?114

On other issues in the auto sector:

3⁄4 What are the legal steps China has taken, or plans to take to completely

remove all restrictions on the categories, types or models of motor vehicles

permitted for production by December 11, 2003?

3⁄4 What are the legal steps China has taken to raise the limit within which

investments in motor vehicle manufacturing could be approved at the

 

111 See, e.g., China's Transitional Review Mechanism - Communication from Japan, G/MA/W/50 (11 September

2003).

112 See, e.g., China's Transitional Review Mechanism - Communication from the European Communities,

G/MA/W/49 (9 September 2003).

113 Transitional Review Mechanism Pursuant to Paragraph 18 of the Protocol on the Accession of the People's

Republic of China - Questions from the United States to China concerning Market Access, G/MA/W/51 (13

October 2003).

114 See, e.g., id.
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provincial level, which were scheduled to take place starting December 11,

2002?115

iii. TRQ administration

China's TRQ administration was an issue of serious concern to Members during the first

TRM. The major complaints with China's TRQ administration may be summarized as follows:

3⁄4 China maintains a sub-quota system for processing trade;

3⁄4 China maintains cumbersome procedures for quota applicants;

3⁄4 China fails to notify foreign exporters of the names of quota holders;

3⁄4 China fails to allocate quotas in commercially viable shipping quantities.

After the first TRM, Members such as the US pushed hard for changes in China's TRQ

regime through various channels. Due to China's continued failure to acknowledge compliance

problems in its TRQ administration, the US considered filing a WTO dispute settlement case

against China (which would have been the first such case against China).116 Finally, China

published for comment draft revisions to its Interim Rules on Agricultural Tariff-Rate Quota

Administration on July 31, 2003. At the Committee on Agriculture, the US noted that the draft

Rules reflected several improvements from the prior measures: for example, the draft Rules

eliminated the separate tariff quota for processing trade (i.e., imports of goods that must be

processed and re-exported).117 However, the US still found China's TRQ regime unsatisfactory

in a number of areas, such as:

3⁄4 The draft Rules still provide for restrictions relating to processing trade and, in

particular, application of out-of-quota tariffs and other penalties when a

 

115 Transitional Review Mechanism Pursuant to Paragraph 18 of the Protocol on the Accession of the People's

Republic of China - Questions from the United States to China Concerning TRIMS, G/TRIMS/W/32 (24

September 2003) at paras. 2 and 3.

116 US Warns China of Possible WTO Dispute Case Against Farm TRQs, INSIDE US-CHINA TRADE, Oct 2, 2002.

117 Summary Report of the Meeting Held on 25 September 2003, Committee on Agriculture, G/AG/R/36 (21

October 2003) at para. 10.
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processing trade enterprise sells agricultural goods without approval in the

domestic market that are imported pursuant to a tariff quota allocation.

3⁄4 China's TRQ administration still lacks transparency in terms of the

information regarding tariff quota holders.118

iv. Intellectual property rights protection (IPR)

As in the first TRM, Members raised numerous concerns in the second TRM at the

Council for TRIPS regarding the protection of intellectual property rights in China. The EC

stated in its submission that, “in the field of enforcement of IPR, the situation has not

substantially improved in comparison with last year” and “China’s share of the world’s trade of

counterfeit and pirated goods continues to increase annually.”119 The following is a summary of

major concerns raised and questions posed by Members to China:

3⁄4 It is hoped that the protection of well-known trademarks in China would be

strengthened without discrimination on the basis of nationality and that

approval procedures should be simplified. What is the number of domestic

and foreign well-known trademarks recognized to date?120

3⁄4 The problem of delays in granting patents has not yet been resolved,

particularly in the area of advanced technology such as liquid-screen displays,

PCs, and IC cards. With such delays, license agreements could not be

concluded for investment in China and it is impossible to obtain compensation

for damages caused by counterfeit goods. What is the current status of patent

pendency at the State Intellectual Property Office with respect to both foreign

and domestic patent applications?121

 

118 Id. at para. 10-15.

119 Transitional Review Mechanism of China, Communication from the European Communities, IP/C/W/413 (12

November 2003) at paras. 3 and 5.

120 See, e.g., Transitional Review Mechanism of China - Communication from Japan, IP/C/W/410 (7 November

2003) at para. 4.B.; Transitional Review under Section 18 of the Protocol of the Accession of the People's

Republic of China - Report to the General Council by the Chair, IP/C/31 (10 December 2003) at para. 60.

121 Id. at para. 4.C.; id. at para. 59.
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3⁄4 Localism is a major obstacle to IPR protection in China. What steps have

been taken to eliminate localism that encourages a soft approach to the

manufacture of counterfeit or pirated goods by local firms?122

3⁄4 In addition, local authorities must enhance their transparency in terms of the

provision of local rules or regulations regarding IPR as well as any local

enforcement decisions, which may also help facilitate interagency

cooperation, cooperation with national authorities, and closer work with rights

holders. What are the national laws that mandate greater transparency by

local authorities in these areas?123

3⁄4 Counterfeit and pirated goods are still being exported from China. What

border enforcement efforts have been adopted by China Customs and what is

the status of operation of regulating such exports?124

3⁄4 Given the actual degree of IPR infringement in China, the number of cases

that lead to criminal prosecutions is extremely small. China must pursue

criminal prosecutions more aggressively and apply more deterrent penalties.

The present standard for prosecuting criminal cases, which includes a

threshold of a certain level of sale proceeds from counterfeit goods, should be

changed.125

v. Subsidies

At the Committee on Subsidies and Countervailing Measures, the United States, the EC,

and Japan expressed concerns about various issues including China's failure to notify its subsidy

programs, export subsidies, and price control (in particular, vis-à-vis state owned enterprises).

Major concerns included the following:

3⁄4 China has not made a subsidy notification as required by Article 25.1 of the

SCM Agreement since joining the WTO nearly two years ago.126

 

122 Transitional Review Mechanism of China - Communication from Japan, IP/C/W/410 (7 November 2003) at

para. 4.D.

123 Transitional Review Mechanism of China - Communication from the United States, IP/C/W/414 (12 November

2003) at para. 10.

124 See, e.g., Transitional Review Mechanism of China - Communication from Japan, IP/C/W/410 (7 November

2003) at para. 4.D.

125 Id.

126 See, e.g., Subsidies - Questions Posed by the United States to the People's Republic of China,

G/SCM/Q2/CHN/6 (27 October 2003) at para. 1.
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3⁄4 China stated at the first TRM that the program of subsidies provided to certain

state-owned enterprises running at a loss had been eliminated in 2001.

However, a recent Chinese press report suggests that China is currently

working to eliminate the program, indicating that the program is still in

existence.127

3⁄4 As indicated from the website of "Shanghai Foreign Investment Center,"

China grants preferential policies to export oriented enterprises. One of the

benefits is the preferential supply of water, electricity, transport and

telecommunication at the same price as state owned companies, which

indicates that China maintains different pricing for energy use depending on

whether the company is state-owned.128

In addition, at the Committee on Agriculture, the United States once again voiced its

concern over China's continued export subsidies on corn.129

vi. VAT

At the TRM in the Market Access Committee, the US restated its concerns regarding

China's discriminatory application of the VAT tax on particular products, as that issue remained

unresolved from the first TRM. These concerns were:

3⁄4 China maintains a differential treatment on the VAT applied to

semiconductors.

3⁄4 China exempts all phosphate fertilizers except DAP from VAT, which is

produced in the US and competes with similar domestic Chinese fertilizers.130

 

127 Subsidies - Questions Posed by the United States to the People's Republic of China, G/SCM/Q2/CHN/6 (27

October 2003) at para. 5.

128 Subsidies - Questions Posted by the European Communities to the People's Republic of China,

G/SCM/Q2/CHN/5 (2 October 2003) at Q-2 and Q-3.

129 Summary Report of the Meeting Held on 25 September 2003, Committee on Agriculture, G/AG/R/36 (21

October 2003) at paras. 16-20.

130 Transitional Review Mechanism Pursuant to Paragraph 18 of the Protocol of the Accession of the People's

Republic of China - Questions from the US to China Concerning Market Access, Committee on Market

Access, G/MA/W/51 (13 October 2003) at paras. 2 and 3.
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vii. China Compulsory Certification System (CCC)

At the TRM held by the Committee on Technical Barriers to Trade, some Members,

including the EC, raised concerns over a new compulsory product certification system in China.

The new system, known as the China Compulsory Certification (CCC) system, came into effect

on August 1, 2003, when it replaced two former compulsory certification systems for domestic

and imported products, respectively.131 Members expressed the following concerns regarding

China's implementation of the CCC system:

3⁄4 The list of products subject to mandatory certification includes spare parts and

components, unless they are incorporated in whole machines. This creates

trade difficulties, especially when spare parts are supplied separately for the

purposes of repair or maintenance, or when components are assembled in

China.132

3⁄4 What are the procedures to ensure that confidentiality of technical information

about products required for conformity assessment is dealt with in a manner

that protects legitimate commercial interests at both the national and local

levels?133

3⁄4 Do fixed fees (covering the application, licensing and checking of

accompanying English documents) and conformity assessment fees reflect the

real cost of certification? Do these fees discriminate between domestic and

imported products?134

 

131 As noted by the Chinese representative at the TBT Committee at the first TRM, the CCC system is designed to

ensure national treatment for imported products. Under the new system, four unifications are realized for both

imports and domestic products (i.e., unified catalogue, unified set of applicable technical regulations, standards

and implementation procedures, unified certification mark and unified fee charge standard.) See Minutes of the

Meeting Held on 17 October 2002, Committee on Technical Barriers to Trade, G/TBT/M/28 (19 November

2002).

132 Transitional Review Mechanism Pursuant to Paragraph 18 of the Protocol on the Accession of the People's

Republic of China - Submission by the European Communities to the TBT Committee, G/TBT/W/227 (6

October 2003) at para. 6.

133 Id. at para. 9.

134 Id. at para. 7.
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3⁄4 How far will foreign conformity assessment be taken into consideration in

China's procedures, notably in sectors where similar requirements apply?135

3⁄4 Will China notify changes to the CCC Mark certification scheme which

permit applicants to conduct factory self-inspection and to proceed with CCC

Mark issuance on an interim basis while awaiting a full factory inspection by

designated certification bodies? 136

viii. Services

As with the first TRM, Members raised many concerns in the second TRM over China's

implementation of its commitments in the services sector. Some of the major issues raised with

regarding a number of the sectors are summarized below.

Banking

Market access restrictions in China's banking sector, which were noted at the first TRM,

were again highlighted at the second TRM.

3⁄4 Pursuant to the Regulation on the Administration of Foreign-Invested

Financial Institutions and the Detailed Implementing Rules for the

Regulations on the Administration of Foreign-Invested Financial Institutions,

China imposes minimum capital requirements for foreign banks, on a branchby-branch basis, that remain extremely high by international standards.137

3⁄4 Chinese authorities released, in November 2002, the draft of the Regulation

on Interbank Borrowing that would limit inter-bank financing to 40% of RMB

liabilities of a bank. The adoption of such a ratio would hurt the business

development in RMB of foreign banks and would raise concerns as to its

compatibility with China's WTO commitments.138

 

135 Id. at para. 10.

136 Transitional Review Mechanism Pursuant to Section 18 of the Protocol on the Accession of the People's

Republic of China - Questions from the United States to China, G/TBT/W/231 (20 October 2003) at para. 2.

137 See, e.g., Communication from the United States, Transitional Review Mechanism in Connection with

Paragraph 18 of the Protocol on the Accession of the People's Republic of China, S/FIN/W/35 (26 November

2003) at para. 6.

138 See, e.g., Communication from Japan, Transitional Review Mechanism in Connection with Paragraph 18 of

the Protocol on the Accession of the People's Republic of China, S/FIN/W/30 (29 September 2003) at para. 8.
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3⁄4 Pursuant to the Detailed Implementing Rules for the Regulations on the

Administration of Foreign-Invested Financial Institutions, foreign banks are

limited to opening only one new branch per year, which constitutes a

significant barrier to market access. China justified this on prudential grounds

at the first TRM, but it appears that the same limitation is not applied to

Chinese banks.139

Auto Financing

China finally issued the long-awaited Administrative Measures on Auto Financing

Companies on October 3, 2003 and the implementing rules on November 12, 2003. The

regulations would make it possible for foreign non-bank institutions to engage in automobile

financing in China, a sector that China committed to opening immediately upon accession. At

the second TRM, Members raised concerns as to these regulations, the most important concern

being China's high minimum capital requirement. In addition, some Members (e.g., the US)

asked China whether it planned to expedite applications for motor vehicle financing licenses in

light of China's delay in issuing the necessary regulations.140

Insurance

In August 2003, the China Insurance Regulatory Commission released for public

comment the draft amendments to the Regulations on the Administration of Foreign-Invested

Insurance Companies. As noted by the United States in its submission, "these draft amendments

significantly reduce capital requirements, an important and highly welcome step."141 However,

some Members (e.g., the US and the EC) still remained concerned as to whether the reduction in

 

139 See, e.g., Communication from the European Communities, Transitional Review Mechanism in Connection

with Paragraph 18 of the Protocol on the Accession of the People's Republic of China, S/FIN/W/32 (12

November 2003) at para. 15.

140 Communication from the United States, Transitional Review Mechanism in Connection with Paragraph 18 of

the Protocol on the Accession of the People's Republic of China, S/FIN/W/35 (26 November 2003) at para. 7.

141 Id. at para. 2.
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capital requirements applied to reinsurance branches, whether China would consider reducing the

registered capital requirement for low risk insurance models, and whether China would consider

eliminating the redundant RMB 20 million capital requirement for branching.142

At the second TRM, several Members also raised questions regarding licensing

requirements. In particular, with respect to the elimination of geographic restrictions, they asked

whether China permits licensed foreign-invested insurers to provide services nationally solely

based on existing licenses without applying for a new license.143

In addition, the United States again raised the issue of internal branching and asked China

to explain why it will not permit internal branching by foreign non-life firms established in

China as a branch, consistent with China's commitment to phase-out geographic restrictions.144

Express Courier

In July 2003, China circulated draft amendments to its Postal Services Law. At the

second TRM, some Members (e.g., the US and the EC) noted several concerns about the draft

amendments, namely:

3⁄4 The draft amendments give China Post a monopoly over the delivery of letters

under 500 grams, which would constitute a new restriction on the scope of

activities of existing foreign-invested express delivery companies.145

 

142 Communication from the United States, Transitional Review Mechanism in Connection with Paragraph 18 of

the Protocol on the Accession of the People's Republic of China, S/FIN/W/35 (26 November 2003) at para. 2;

Communication from the European Communities, Transitional Review Mechanism in Connection with

Paragraph 18 of the Protocol on the Accession of the People's Republic of China, S/FIN/W/32 (12 November

2003) at para. 4.

143 See, e.g., Communication from Japan, Transitional Review Mechanism in Connection with Paragraph 18 of

the Protocol on the Accession of the People's Republic of China, S/FIN/W/30 (29 September 2003) at para. 4.

144 Communication from the United States, Transitional Review Mechanism in Connection with Paragraph 18 of

the Protocol on the Accession of the People's Republic of China, S/FIN/W/35 (26 November 2003) at para. 1.

145 Communication from the United States, Transitional Review Mechanism in Connection with Paragraph 18 of

the Protocol on the Accession of the People's Republic of China, S/C/W/233 (26 November 2003) at para. 8.
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3⁄4 The draft amendment does not address the need for an independent

regulator.146

Distribution Services

At the second TRM, some Members (e.g., the US and Japan) expressed concerns about

China's uneven implementation of its commitment to phase in distribution services. They

requested that China provide its schedule and the relevant legislation necessary to implement

China's distribution services commitments. For instance, the US submission noted:

China appears to have implemented its commitments regarding

wholesaling services and commission agents' services provided by

foreign-invested enterprises with respect to goods that they

manufacture in China. * * * However, China appears to have

fallen behind in implementing its commitments regarding

wholesale services and commission agents' services insofar as they

relate to foreign-invested enterprises seeking to distribute goods

made by other enterprises in China or imported goods. To date,

China has only opened up wholesaling services and commission

agents' services to joint ventures with minority foreign ownership

that can satisfy a number of stringent qualification requirements

and other restriction.

* * *

As in the wholesale area, China appears to have implemented its

commitment to permit foreign invested enterprises to supply

retailing services for their own goods manufactured in China. * *

* However, China appears to have fallen behind in implementing

its retailing services commitments insofar as they relate to joint

ventures that do not manufacture their own goods in China. To

date, although China has authorized retailing services to be

supplied through joint ventures with minority foreign ownership, it

greatly restricts the supply of these services.147

 

146 See, e.g., id.

147 Communication from the United States, Transitional Review Mechanism in connection with Paragraph 18 of

the Protocol on the Accession of the People's Republic of China, S/C/W/233 (26 November 2003) at paras. 3,

6.
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C. U.S. and Private Sector Monitoring and Bilateral Approaches to

Address Issues

1. Bilateral mechanisms for addressing issues

In addition to US efforts through the WTO to encourage China's WTO compliance, the

US maintains an active bilateral relationship with China involving both formal high-level

meetings as well as informal discussions. The United States and China maintain three formal

vehicles for bilateral discussion: (1) the Joint Commission on Commerce and Trade, (2) the Joint

Economic Commission, and (3) the Trade Dialogue. Charles Freemen, Deputy Assistant U.S.

Trade Representative, has described the framework of US-China bilateral discussions on trade

and economic matters as follows:

The Administration maintains three formal dialogues with Chinese

ministries. The Commerce Department chairs meetings of the

Joint Commission on Commerce and Trade; the Treasury conducts

meetings of the Joint Economic Commission with the Chinese

Ministry of Finance; and USTR chairs an interagency Trade

Dialogue with counterparts from the Ministry of Commerce and

relevant other Chinese agencies. Like many of the informal

contacts, these formal occasions are opportunities not merely to

discuss bilateral and multilateral trade and economic matters, but

are themselves action-forcing events at which significant progress

can be achieved. They also act as an early warning system on

trade problems – providing an opportunity to resolve issues before

they become broader bilateral irritants.

In addition to these formal processes, the Administration meets

frequently on both the Cabinet and sub-cabinet level with senior

Chinese officials, and uses such meetings to press the importance

of economic issues with Chinese counterparts. In the case of

USTR, Ambassador Zoellick meets or speaks via telephone with

PRC Minister of Commerce Lu Fuyuan on a regular basis, has

been to China twice since December 11, 2001, and plans to travel

to China again for bilateral discussions next month. Ambassador

Josette Sheeran Shiner recently confirmed as Deputy USTR, plans

to continue an active dialogue with her counterparts, and other
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USTR officials meet regularly with Chinese officials on bilateral

trade concerns, whether in Washington, Beijing, or at the WTO.

These exchanges are critical opportunities to advance bilateral and

multilateral trade and economic matters, and have proven effective

in making progress on key U.S. concerns.148

Joint Commission on Commerce and Trade

As noted above, the US-China trade dialogue that is chaired by the Department of

Commerce is the Joint Commission on Commerce and Trade (JCCT). The Department of

Commerce describes the purpose and activities of the JCCT as follows:

• The US-China Joint Commission on Commerce and Trade (JCCT) was established in

1983 as a forum for high-level dialogue on bilateral trade issues and a vehicle for

promoting commercial relations.

• The JCCT works to resolve problems affecting US companies and serves as an

umbrella for trade events and World Trade Organization (WTO) technical assistance

programs.

• The JCCT is co-chaired by US Secretary of Commerce and China's Minister of

Commerce and enjoys strong interagency support on both sides.

• The Commission consists of three working groups covering trade and investment

issues, business development and industrial cooperation, and commercial law, as well

as a side dialogue on export controls.

• Cabinet-level plenary sessions typically are held annually, while sub-cabinet sessions

and subgroup meetings are more frequent and ongoing.

• The Department of Commerce (DOC) consults closely with US industry prior to each

session to ensure that companies' most pressing concerns are addressed.149

As noted above, the JCCT has three working groups covering trade and investment

issues, business development and industrial cooperation, and commercial law. In addition, the

 

148 Is China Playing By the Rules? Free Trade, Fair Trade, and WTO Compliance, Statement of Charles W.

Freeman III, Deputy Assistant U.S. Trade Representative, before the Congressional-Executive Commission on

China (September 24, 2003) (emphasis added).

149 See U.S. Department of Commerce website: http://www.mac.doc.gov/china/JCCTforwebo.htm.
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US and China maintain a side dialogue on export controls. These groups are involved in the

following bilateral activities:

• The Trade and Investment Working Group (T&IWG): The T&IWG is cochaired by the DOC Assistant Secretary for Market Access and Compliance and

China's Ministry of Commerce (MOFCOM) Director General for the Americas. The

T&IWG covers issues related to market access, trade finance, and investment and

business facilitation. T&IWG also provides an important venue where outstanding

commercial dispute cases are reviewed and addressed.

The last T&IWG meeting convened at the directorial level in Washington, DC on

August 11, 2003. The US side raised a number of issues including establishing

further cooperation on standards development and stronger intellectual property rights

protection. The US side also proposed strengthening and reinvigorating the T&IWG

mechanism by designating a coordinator on each side, regularizing meetings, and

maintaining a direct line of communication between working group meetings.150

• The Business Development and Industrial Cooperation Working Group

(BDICWG): The BDICWG is co-chaired by DOC Assistant Secretary for Trade

Development and MOFCOM Director General of the Department of Science and

Technology. The BDICWG promotes greater commercial cooperation on an industry

sector basis. Industry sub-groups in environmental technologies, medical and

pharmaceuticals, information industries, aviation and airport infrastructure, electric

power technologies, and motor vehicle and allied products provide an ongoing policy

forum for sector-focused discussion of market access and regulatory issues, and

commercial cooperation. US Government agencies such as the EPA, FDA, and the

FAA are important partners in supporting sub-group activities.

The BDICWG last convened in Washington in April 2003 to discuss industry sectorspecific issues, review industry subgroup progress, and agree upon new priorities and

principles for bilateral cooperation. The co-chairs agreed that all subgroups should

undertake stronger cooperation on standards as a part of their overall efforts.151

• Commercial Law Working Group (CLWG): The CLWG is co-chaired by the

Department of Commerce General Counsel and MOFCOM Director General for

Treaty and Law. The CLWG works to improve commercial relations between the

United States and China through discussion of legal issues of mutual interest. The

CLWG has proven a useful forum for seeking reform of China's commercial law

system in areas of concern to US companies. Through the CLWG there have been

 

150 See U.S. Department of Commerce website: http://www.mac.doc.gov/china/JCCTforwebo.htm.

151 See U.S. Department of Commerce website: http://www.mac.doc.gov/china/JCCTforwebo.htm.
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successful discussions on measures to enhance the recognition and enforcement of

arbitral awards in China and the inequitable application of China's border trade policy

to goods that compete with US products.

The CLWG last convened in April 2002 in Beijing, where the US raised several

concerns including lack of transparency in Chinese regulatory practices, problems

with the method of promulgation and content of measures regulating foreign law

firms issued by China's Ministry of Justice, and the process of granting marketing

approval for generic drugs.

The CLWG also sponsors the US-China Legal Exchange, a series of joint legal

seminars that foster mutual understanding of the legal regimes governing trade and

investment in both countries. The seminars offer US audiences the opportunity to

learn about the legal reforms taking place in China and provide Chinese participants

the chance to learn about US practices. Under this program, the United States and

China send delegations of legal experts to speak on topics of current interest. Both

private sector and government attorneys have been featured at the seminars, which

are open to government officials and academicians as well as the local business and

legal communities. In December 2002, Vice Minister of Foreign Trade Long Yongtu

led a delegation of Chinese legal experts to the United States to talk about the legal

changes necessary for China to implement its WTO accession commitments. General

Counsel Kassinger reciprocated, leading the most recent Legal Exchange delegation

to China in November 2003 to discuss both recent developments in corporate

governance practices in the United States as well as to discuss a variety of trade

remedy measures used to safeguard fair trade between the United States and its

trading partners, including China.152

• Export Controls Dialogue: The Bureau of Industry and Security (BIS) meets with

officials from MOFCOM's Department of Science and Technology under the Export

Controls Side Dialogue of the JCCT. BIS has generally used the regularized

exchange of the JCCT forum to encourage more cooperation from MOFCOM on enduse checks for US strategic goods licensed to China.

The Bureau of Industry and Security co-hosted the Sino-U.S. Export Control

Outreach Seminar in Shanghai, China with China's Ministry of Commerce on

September 17-18, 2003. The conference highlighted basic elements of US and

Chinese export controls, regulations, and enforcement and was attended by 275

business and Chinese Government participants. Presenters at the conference

consisted of both US and Chinese export control government representatives.

Speakers from both governments were able to share their experience and knowledge

of export controls with industry attendees.153

 

152 See U.S. Department of Commerce website: http://www.mac.doc.gov/china/JCCTforwebo.htm.

153 See U.S. Department of Commerce website: http://www.mac.doc.gov/china/JCCTforwebo.htm.
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Final Report, March 19, 2004 Page 124

Joint Economic Committee

The China-US Joint Economic Committee was established in 1979 and generally has met

on an annual basis. The most recent meeting of the China-US Joint Economic Committee, the

15th Session, occurred in the United States in September 2002. The meeting discussed issues

related to macroeconomic developments, financial sector issues (including transparency and

financial service liberalization pursuant China’s WTO commitments), cooperation on terrorist

finance, anti-money laundering and other issues, and international financial institutions. US

participants at the 15th JEC meeting included representatives from the Treasury, Federal Reserve,

Office of the U.S. Trade Representative, Council of Economic Advisors, Securities Exchange

Commission, Department of State, and Department of Commerce. Chinese participants included

representatives from the Ministry of Finance, People’s Bank of China, Ministry of Foreign

Affairs, Ministry of Public Security, State Development Planning Commission, Ministry of

Justice, China Securities Regulatory Commission, China Insurance Regulatory Commission and

the Legislative Affairs Office of the State Council.154

The Trade Dialogue

In October 2002, the United States and China established a new structure for bilateral

trade discussions termed the US-China Trade Dialogue. As described by the USTR:

The U.S.-China Trade Dialogue is a new bilateral forum designed

to bring U.S. and Chinese officials from throughout their

governments to discuss bilateral trade issues, resolve potential

disputes and foster cooperation on issues within the ongoing Doha

global trade negotiations.155

 

154 See U.S. Department of Treasury, Joint Statement of the 15th Session of the China-U.S. Joint Economic

Committee, September 9, 2002.

155 USTR, press release 2003-10 (February 14, 2003).
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The United States and China decided to launch the Trade Dialogue in order to give senior

trade officials a chance to meet and discuss trade issues on a regular basis. Press reports

indicated that, under the new initiative, the US and China intended to convene on a quarterly

basis.156 To date, there have been two Trade Dialogues. The first occurred in February 2003

when USTR Zoellick traveled to Beijing and the second occurred in November 2003 in Beijing

with the US delegation led by Deputy USTR Shiner.

Given China's shortfalls in meeting WTO commitments, bilateral relations, including the

Trade Dialogue, have taken on increased importance as a vehicle for addressing China WTO

compliance problems. The Deputy USTR Allgeier described the value of bilateral channels as

follows:

When confronted with compliance problems, the Administration

uses all available and appropriate means to obtain China’s full

WTO compliance, including intervention at the highest levels of

government. The Administration has worked closely with the

affected U.S. industries on compliance concerns, and has utilized

bilateral channels through multiple agencies, at all levels, to press

these concerns. * * *

In furtherance of these efforts, Ambassador Zoellick has met with

his Chinese counterparts on numerous occasions. Most recently, in

February of this year, he was in China and raised key WTO

implementation and other concerns with Wen Jiabao, who is now

China’s Premier, and with the Trade Minister. This past February,

USTR also launched a new trade dialogue with China, led on the

U.S. side by then-Deputy U.S. Trade Representative Huntsman.

Meanwhile, U.S. Embassy personnel in Beijing, including

Ambassador Randt, continue to maintain close contacts with

Chinese trade officials at all levels, and Deputy U.S. Trade

 

156 U.S., China Launch High-Level Trade Dialogue, Hope to Meet in January, INSIDE US-CHINA TRADE, October

30, 2002.
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Representative Deily has developed a good working relationship

with her Chinese counterpart at the WTO in Geneva.

These varied efforts are not merely designed to resolve current

bilateral trade problems, but also to pre-empt future problems

through an early-warning system. In general, the level of discourse

has been quite high, and China’s responsiveness has been

satisfactory. As with any relationship as complex as that of the

United States and China, however, resolving problems takes time

and energy. At USTR, we are spending the maximum amount of

time and energy on this task.157

In its 2003 China compliance report, USTR highlights the following US-China bilateral

efforts in 2003.

• As the slowdown in China’s WTO implementation efforts became evident in 2003,

the Administration stepped up its efforts to engage senior Chinese leaders. Over the

course 2003, President Bush emphasized the importance of China’s WTO obligations

in meetings with his counterpart, Hu Jintao, and with China’s Premier, Wen Jiabao.

• USTR Zoellick made two separate visits to China for talks on WTO implementation

matters with Premier Wen and with Vice Premier Wu Yi.

• USTR Zoellick raised U.S. concerns throughout the year with his Ministry of

Commerce (MOFCOM) counterpart, including most recently at the October 2003

APEC meetings in Thailand.

• The Secretaries of Commerce and Treasury made their own trips to China carrying

the message that China’s WTO implementation was a matter of the highest priority.

• Sub-cabinet officials from various U.S. economic and trade agencies also met with

their Chinese counterparts in China, Washington and Geneva to work through areas

of concern, including WTO implementation issues, on numerous other occasions.

• In 2003, the Administration established the "Trade Dialogue", a sub-cabinet dialogue

on WTO compliance and other trade matters that brings together U.S. economic and

trade agencies and various Chinese ministries and agencies with a role in China’s

WTO implementation. Trade Dialogue meetings were convened twice in 2003

(February and November). The Trade Dialogue meetings were used to communicate

 

157 Statement by Ambassador Peter F. Allgeier, Deputy United States Trade Representative, Before the House

Committee on Appropriations Subcommittee on the Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies (May 22, 2003).
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Final Report, March 19, 2004 Page 127

specific trade concerns and served as an early warning mechanism for emerging trade

disputes.158

2. Monitoring programs

(a) Government

Monitoring of trade agreements generally

Since the 1980s, the United States has entered into more than 400 trade-related

agreements. It is important to the success of these agreements in achieving their goals of

liberalized trade and opening market access for U.S. companies that the agreements be

effectively monitored and enforced. Meaningful monitoring and enforcement are also essential

to maintaining public support and confidence in the benefits of trade agreements. Generally,

within the federal structure, the Office of the US Trade Representative bears the primary

responsibility for monitoring and enforcing trade agreements, but at least 16 other US

Government agencies also are active, to varied degrees, in monitoring and enforcement

activities, as the diagram below shows.

 

158 USTR, 2003 Report To Congress On China’s WTO Compliance, at 5 (December 11, 2003).
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The President ____ National Economic

Council

|

US Trade

Representative

Department of

Commerce

Department of

Agriculture Department of State

|

Department of Treasury Department of Labor

|

Other agencies

|

Department of

Justice

Department of

Interior

Department of

Energy

International

Trade

Commission

Office of

Management &

Budget

Council of

Economic

Advisers

|

Department of

Defense

Department of

Transportation

Department of

Health & Human

Services

Environmental

Protection Agency

Agency for

International

Development

Source: US General Accounting Office, INTERNATIONAL TRADE: Strategy Needed to Better

Monitor and Enforce Trade Agreements (GAO/NSIAD-00-76, March 2000) at 9 (figure

3).

After USTR, the US agencies with most involvement in monitoring trade agreements are

the Departments of Commerce, Agriculture, and State, which conduct their own monitoring and

enforcement efforts while also coordinating with USTR. The Departments of Commerce and

Agriculture "have certain statutory monitoring responsibilities for trade agreements," and the

Department of State "has an important role in monitoring and enforcing trade agreements

because of its foreign policy expertise."159 A brief summary of the functions of these primary

monitoring agencies is presented below.

 

159 US General Accounting Office, INTERNATIONAL TRADE: Strategy Needed to Better Monitor and Enforce Trade

Agreements (GAO/NSIAD-00-76; March 2000) at 8.
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USTR:

• primarily responsible for developing and coordinating U.S. international trade,

commodity, and direct investment policy.

• leads or directs negotiations with other countries on such matters.

• primary agency responsible for monitoring and enforcing U.S. trade agreements.

• statutorily required to annually identify foreign policies and practices that constitute

significant trade barriers and particularly considers whether any identified policies or

practices are covered by trade agreements.

• refers to appropriate agency any unfair trade practice inconsistent with provisions of any

trade agreement that has significant adverse impact on U.S. commerce.

• authorized to initiate actions to enforce U.S. rights under bilateral and multilateral trade

agreements.

• chairs interagency group that oversees the multiple interagency committees that coordinate

trade policy.

Commerce:

• general responsibility for major nonagricultural trade functions of the U.S. government,

including monitoring and taking certain steps to secure compliance with trade

agreements and ensuring that U.S. companies have access to foreign markets.

• statutorily responsible, along with USITC, for administering U.S. unfair trade laws

(antidumping and subsidies).

• shares statutory responsibility with USTR for monitoring violations of WTO rules

concerning member countries’ subsidy practices.

• trade activities carried out primarily by International Trade Administration.

Agriculture:

• provides technical assistance to USTR on matters pertaining to agricultural trade,

including international negotiations on agricultural trade agreements.

• statutorily responsible for implementing and monitoring the agricultural provisions of

WTO agreements and NAFTA.

• required to report to USTR and Congress re non-compliance with WTO provisions that

adversely affects U.S. agricultural trade.

• Foreign Agricultural Service handles Agriculture’s trade activities and works with USTR

and State on international agricultural trade issues.

State:

• advises USTR on the foreign policy implications of any trade-related actions and

participates in trade negotiations that have direct and significant impact on foreign

policy.

• State’s Bureau of Economic and Business Affairs has overall responsibility for

formulating and implementing policy regarding foreign economic matters.

• State's economic officers (through in-country contacts with U.S. businesses and foreign

officials) provide instrumental assistance in monitoring and enforcing trade agreements.
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Other agencies:

• at least 13 other federal agencies are also involved in the monitoring and enforcement of

trade agreements; they generally provide technical/policy input derived from their

specialized areas of expertise. For example:

 Treasury is responsible for developing policies on international monetary affairs,

trade and investment, international debt strategy, and U.S. participation in

international financial institutions, and advises USTR on the financial services

aspects of trade agreements.

 Labor advises USTR on any labor and workers’ rights issues associated with trade

agreements.

 Health and Human Services’ Food and Drug Administration helps Agriculture's FAS

address other countries’ health and food safety measures affecting U.S. exports.

 U.S. International Trade Commission plays unique role due to broad investigative

powers in monitoring trade data and trade agreements.

Inter-agency mechanisms:

• National Economic Council

 cabinet-level organization established in 1993.

 comprised of: the President; Vice President; Secretaries of State, Treasury,

Agriculture, Commerce, Labor, Housing and Urban Development, Transportation,

and Energy; Administrator of Environmental Protection Agency; Chair of Council of

Economic Advisors; Director of Office of Management and Budget; U.S. Trade

Representative; Assistants to President for Economic Policy, Domestic Policy, and

Science and Technology Policy; National Security Advisor; and other executive

departments/agencies as the President may designate.

 coordinates domestic and international economic policy formulation.

 reviews significant trade policy issues; ensures overall trade policy coordination.

• Trade Policy Committee (TPC)

 chaired by USTR; includes State, Agriculture, Commerce, Treasury, and Labor.

 two subordinate bodies - (1) Trade Policy Review Group (management-level) and

(2) Trade Policy Staff Committee (senior staff-level).

 subordinate committees comprised of TPC agencies, plus other agencies.

 TPSC operates primarily through network of subcommittees/task forces composed

of staff from various agencies and chaired by USTR staff.

 TPSC subcommittees deal with both regional and industry-specific issues, and

specialized task forces deal with specific trade issues.

Source: US General Accounting Office, INTERNATIONAL TRADE: Strategy Needed to Better

Monitor and Enforce Trade Agreements (GAO/NSIAD-00-76; March 2000).
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In addition, a number the US agencies involved in trade issues, primarily USTR,

Commerce, Treasury, State, and the International Trade Commission, are required by statute to

prepare a variety of trade-related reports that assist their monitoring and enforcement efforts.160

Monitoring of China's WTO commitments

In 2001, as China entered the WTO, the US government viewed the implementation of

China's WTO commitments and obligations as critical to the success of China's incorporation

into the global trade regime. Even more so than in the case of a typical trade agreement, the US

focused on the need to vigilantly monitor and enforce China's WTO commitments. In the statute

authorizing extension of normal trade relations treatment to China,161 Congress made the

following findings:

The United States Government must continue to be vigilant in

monitoring and enforcing the compliance by our trading partners

with trade agreements in order for United States businesses,

workers, and farmers to continue to benefit from the opportunities

created by market-opening trade agreements.

The People’s Republic of China, as part of its accession to the

World Trade Organization, has committed to eliminating

significant trade barriers in the agricultural, services, and

manufacturing sectors that, if realized, would provide considerable

opportunities for United States farmers, businesses, and workers.

For these opportunities to be fully realized, the United States

Government must effectively monitor and enforce its rights under

the agreements on the accession of the People’s Republic of China

to the WTO.162

 

160 For a listing of such reports, see US General Accounting Office, INTERNATIONAL TRADE: Strategy Needed to

Better Monitor and Enforce Trade Agreements (GAO/NSIAD-00-76; March 2000) at p. 50-52 (Appendix III).

161 US-China Relations Act of 2000, Pub.L. 106–286, Div. B, Title IV, § 411, Oct. 10, 2000, 114 STAT. 880.

162 22 U.S.C. § 6941 (emphasis added).
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Congress therefore authorized appropriations for additional resources to support

monitoring of China's compliance with its WTO commitments. In particular, Congress

authorized monitoring activities by the US Trade Representative and the Departments of

Commerce and Agriculture. With respect to the Department of Commerce, Congress authorized

appropriations for "monitoring compliance by the People’s Republic of China with its

commitments under the WTO." 163 For USTR, Congress authorized appropriations for additional

staffing in "offices relating to the WTO and to different sectors of the economy, including

agriculture, industry, services, and intellectual property rights protection, to monitor and enforce

the trade agreement obligations of the People’s Republic of China in those sectors.164 With

respect to the Department of Agriculture, Congress authorized appropriations "for additional

staff to increase legal and technical expertise in areas covered by trade agreements and United

States trade law, including food safety and biotechnology, for purposes of monitoring

compliance by the People’s Republic of China with its trade agreement obligations."165

Congress also authorized appropriations to the Departments of Commerce and State for an

overseas compliance program of "monitoring in the People’s Republic of China that country’s

compliance with its international trade obligations."166

In addition, Congress also created two commissions whose purpose is, in part, to monitor

the progress of China's compliance with its WTO obligations.

 

163 19 U.S.C. § 6943(a)(1).

164 19 U.S.C. § 6943(c)(4).

165 19 U.S.C. § 6943(d).

166 19 U.S.C. § 6943(b)(1).
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United States-China

Economic and Security

Review Commission

(USCC)

http://www.uscc.gov

• created by Congress in the Floyd D. Spence National Defense

Authorization Act for 2001 § 1238, Pub. L. No. 106-398, 114 STAT.

1654A-334 (2000) (codified at 22 U.S.C. § 7002 (2001).

• legislative mandate to monitor, investigate, and report to Congress on

the national security implications of the bilateral trade and economic

relationship between the United States and the People's Republic of

China.

• consists of 12 members, of which 3 members each are appointed by

-- Speaker of the House of Representatives

-- President pro tempore of the Senate (as recommended by the

majority leader of the Senate

-- President pro tempore of the Senate (as recommended by the

minority leader of the Senate

-- minority leader of the House of Representatives

Congressional-Executive

Commission on China

(CECC)

http://www.cecc.gov

• created by Congress in the China Relations Act of 2000, Pub. Law No.

106-286 (October 10, 2000) (codified at 22 U.S.C. § 6911 et seq.).

• legislative mandate to monitor China's compliance with international

human rights standards, to encourage the development of the rule of law

in the PRC, to establish and maintain a list of victims of human rights

abuses in China, and to submit an annual report to the President and the

Congress.

• consists of:

-- nine Senators appointed by the Senate Minority Leader in

consultation with Senate Minority Leader

-- nine members of the House of Representatives appointed by the

Speaker of the House in consultation with the House Minority

Leader

-- five senior Administration officials appointed by the President

Given the great number of China's WTO commitments, as well as the complexity and

breadth of the accession agreement, the task of monitoring and enforcing China's compliance

with its WTO obligations is a challenging endeavor. In response to the increased responsibilities

placed on them by China’s accession to the WTO, the US Trade Representative, and the

Departments of Commerce, Agriculture and State have focused efforts on improving their ability

to monitor China's WTO compliance.

Soon after China's accession, the Department of Commerce described the steps it had

taken to initiate its monitoring program.
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Commerce's China Team holds semiweekly strategy sessions to

review cases and implementation plans. A new China-specific

website (www.export.gov/china) provides US business with

detailed information on China's WTO obligations, compliance and

market opportunities. China Team representatives meet regularly

with the commercial staff from the Chinese Embassy in

Washington, D.C. and Commercial Service officers meet regularly

with Ministry of Foreign Trade and Economic Cooperation in

Beijing, to review specific market access and compliance

problems. A group dedicated especially to monitoring

developments relevant to potential unfair trade problems with

China also has been established as an offshoot of Commerce’s

ongoing work in import monitoring and the enforcement of U.S.

rights under the WTO with respect to multilateral subsidy

disciplines. Among other things, this group will monitor China’s

provision of financial assistance and state aids to industrial

enterprises to ensure that they conform to WTO commitments.

* * *

Commerce’s enforcement efforts are part of a coordinated U.S.

Government approach to monitoring and enforcing China’s WTO

compliance. In Washington, D.C., the U.S. Department of

Commerce, the Office of the U.S. Trade Representative and the

Departments of State, Treasury, Agriculture and Labor, play an

active role in WTO implementation and monitoring efforts.

In Beijing, Commercial Service officers, along with State

Economic officers, Foreign Agricultural Service officers and

Customs Attaches, participate in a WTO Implementation

Coordination Committee which meets regularly to assess progress

and monitor problems, with input from US consulates in Shanghai,

Guangzhou, Shenyang and Chengdu.167

Also, in furtherance of its monitoring efforts, the Department of Commerce has set up a number

of websites including China Gateway (http://www.mac.doc.gov/china/WTOAccessionPackage

NEW.html) maintained by the Office of China Economic Area and China Monitoring

 

167 US Department of Commerce, China's Accession to the WTO: What it Means for U.S. Industry, EXPORT

AMERICA, Vol. 3, No. 1 (January 2002), at 25-26.
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Final Report, March 19, 2004 Page 135

(http://ia.ita.doc.gov/trcs/imports/china/china.html) maintained by the Import Administration's

Trade Remedy Compliance Staff.

In a recent study, the US General Accounting Office examined how the key federal

agencies had organized in order to address China compliance issues. The GAO reported that

USTR, Commerce, Agriculture and State had "reorganized or established teams to better

coordinate the activities among the various agency units involved in China WTO compliance,"

and had added staff in the United States and China to conduct their monitoring efforts.168 In

addition to intra-agency activities, "USTR established a staff-level interagency working group

focused on China WTO compliance to identify, analyze, and resolve problems."169 The GAO

report summarized these monitoring efforts.

USTR

• In June 2002, USTR created an Office of North Asian Affairs by merging the Offices of China

and Japan; this office has primary responsibility for coordinating efforts on China WTO trade

issues.

• USTR's General Counsel and other sector/function-specific offices support the North Asian

Affairs Office on China trade issues.

• USTR’s Monitoring and Enforcement Unit of the General Counsel's Office has primary

responsibility for representing the US if a China-related dispute settlement case is brought before

the WTO.

COMMERCE

• In May 2001, Commerce created an intra-agency China Compliance Team to facilitate

compliance monitoring efforts.

 

168 US General Accounting Office, WORLD TRADE ORGANIZATION: First-Year U.S. Efforts to Monitor China's

Compliance, GAO-03-461 (March 2003) at 5. The GAO report states that "full-time equivalent staff in key

units that are involved in China monitoring and enforcement activities across the four agencies increased from

about 28 to 53 from fiscal year 2000 to 2002, based on agency officials’ estimates." Id. at 8. "Commerce had

the largest overall increase in staff devoted to China WTO compliance. Specifically, staffing levels in

Commerce’s Market Access and Compliance division increased from 7 to 22 between fiscal years 2000 and

2002." Id. at 10.

169 US General Accounting Office, WORLD TRADE ORGANIZATION: First-Year U.S. Efforts to Monitor China's

Compliance, GAO-03-461 (March 2003) AT 5. See also US Sets Up Interagency Group to Deal With China

WTO Compliance, INSIDE US-CHINA TRADE, December 5, 2001, at 1; US Interagency Group Begins to

Scrutinize China's WTO Compliance, INSIDE US-CHINA TRADE, December 12, 2001, at 1.
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Final Report, March 19, 2004 Page 136

• The China Compliance Team is comprised of 6 units and meets twice weekly:

 Market Access and Compliance (MAC) (chair)

 Import Administration

 Trade Development

 U.S. and Foreign Commercial Service (FCS)

 Trade Information Center

 Office of General Counsel

• 2 offices within MAC directly coordinate compliance efforts: Office of China Economic Area

and Trade Compliance Center.

USDA

• In December 2001, USDA recognized its need to gather cross-agency expertise to aid in

effectively monitoring China’s WTO compliance regarding agriculture.

• USDA created 2 intra-agency task forces (a USDA-wide task force and a working-level task

force) within USDA’s Foreign Agricultural Service (FAS).

• 6 USDA agencies participate in the USDA-wide China Task Force, which was created in

February 2002 and meets quarterly.

• The FAS-wide China Task Force (established March 2002) meets monthly to develop strategies

for resolving China compliance issues.

• 2 divisions within FAS coordinate compliance efforts: the Asia and the Americas Division and

the Multilateral Trade Negotiations Division.

STATE

• State officers at U.S. Beijing embassy took the lead in coordinating compliance monitoring

efforts in China.

• U.S. embassy established a WTO Implementation Coordination Committee.

 Committee meets monthly, is chaired by the embassy’s economic minister, and coordinates

WTO monitoring, compliance, technical assistance, and outreach efforts.

 Committee is comprised of State officers from relevant sections, and officers from

Commerce, USDA, and Customs.

 Committee gathers, summarizes, and communicates information from China to U.S.

government agencies in Washington, D.C.

• State's Office of Chinese and Mongolian Affairs is main communications link between US

agencies in Washington, DC and U.S. embassy and consulates general in China.

 The office coordinates instructions and other diplomatic dispatches regarding China WTO

compliance issues.

 It also coordinates with State’s Bureau of Economic and Business Affairs to obtain sectorspecific and other technical expertise on China trade issues.

INTER-AGENCY MONITORING GROUP:

TPSC Subcommittee on China WTO Compliance

• The Trade Policy Committee (TPC) is the formal interagency structure led by USTR.

• The TPC has 2 subordinate bodies: Trade Policy Review Group (management-level committee)

and Trade Policy Staff Committee (senior staff-level committee subordinate to TPRC).

• In 2001, USTR established a new TPSC subcommittee to focus exclusively on China’s

compliance with its WTO commitments.

• The new subcommittee -- TPSC Subcommittee on China WTO Compliance -- is chaired by
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 137

USTR and replaced an existing China subcommittee.

• Almost 40 officials, representing 14 departments and executive offices, participate in the China

compliance subcommittee.

• In December 2001, the China WTO Compliance Subcommittee adopted an action plan with 8

components:

 comprehensive monitoring activities on a coordinated interagency basis, with input from

private sector groups;

 regular dialogue with other WTO members;

 outreach to the private sector about the business environment it should expect in China;

 outreach to Chinese officials about their WTO commitments and compliance and its

benefits;

 technical assistance and capacity building activities for China;

 active participation in the WTO Transitional Review Mechanism process;

 facilitation of congressional oversight, by providing an annual report to Congress; and

 efforts to seek enforcement of U.S. rights through bilateral and multilateral means, including

recourse to WTO dispute settlement procedures, as appropriate.

• During its first year (2002) the China WTO Compliance Subcommittee was very active and met

11 times, at which officials evaluated and prioritized monitoring activities undertaken, reviewed

steps taken by China to implement its commitments, and decided on appropriate responses.

However, GAO states that, according to agency officials, much of their monitoring work takes

place informally outside of formal meetings.

• The TPSC Subcommittee on China WTO Compliance held public hearings in both 2002 and

2003.

• GAO notes that it took some time for the TPSC subcommittee to "get up to full speed." This

was due to several factors, such as the time needed by the various participants to work out roles

and responsibilities, delineate monitoring tasks and set initial priorities. Also, it was sometimes

difficult to obtain timely and accurate translations of Chinese laws and regulations for review.

Source: US General Accounting Office, WORLD TRADE ORGANIZATION: First-Year U.S. Efforts to Monitor

China's Compliance, GAO-03-461 (March 2003) AT 6-8, 11-13.

In the US-China Relations Act of 2000, Congress enacted a requirement that USTR

submit an annual report to Congress on China's compliance with its "commitments made in

connection with its accession to the World Trade Organization, including both multilateral

commitments and any bilateral commitments made to the United States."170 In its preparation of

the compliance report, USTR is required to seek public participation through a public hearing.171

To date, USTR has issued its 1st (Dec. 2002) and 2nd (Dec. 2003) annual reports to Congress on

 

170 19 U.S.C. § 6951(a).
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China’s WTO Compliance.172 In both 2002 and 2003, USTR conducted public hearings prior to

submitting its annual report to Congress.173

The US General Accounting Office has conducted a number of studies related to the

monitoring of China's WTO commitments and trade agreements generally. These studies

include the following:

• WORLD TRADE ORGANIZATION: Ensuring China's Compliance Requires a Sustained

and Multifaceted Approach (GAO-04-172T) (October 30, 2003).

• WORLD TRADE ORGANIZATION: First-Year U.S. Efforts to Monitor China's

Compliance (GAO-03-461) (March 2003).

• WORLD TRADE ORGANIZATION: Analysis of China's Commitments to Other Members

(GAO-03-4) (October 2002).

• WORLD TRADE ORGANIZATION: Selected U.S. Company Views about China's

Membership (GAO-02-1056) (September 2002).

• WORLD TRADE ORGANIZATION: Observations on China's Rule of Law Reforms

(GAO-02-812T) (June 6, 2002).

• WORLD TRADE ORGANIZATION: Status of China's Trade Commitments to the United

States and Other Members (GAO/NSIAD-00-142) (May 2000).

• INTERNATIONAL TRADE: Strategy Needed to Better Monitor and Enforce Trade

Agreements (GAO/NSIAD-00-76) (March 2000).

The GAO has also established an electronic database of China's WTO commitments.

Because an understanding of China's WTO accession obligations is essential to assessing

whether China is abiding by its commitment, and because of the length and complexity of

 171 19 U.S.C. § 6951(b).

172 USTR, 2002 Report To Congress On China’s WTO Compliance (December 11, 2002); USTR, 2003 Report To

Congress On China’s WTO Compliance (December 11, 2003). The China compliance reports are available at

http://www.ustr.gov/regions/china-hk-mongolia-taiwan/2002-12-11-China_WTO_compliance_report.pdf and

http://www.ustr.gov/regions/china-hk-mongolia-taiwan/2003-12-18-china.pdf.

173 A listing of the individuals and groups that submitted comments to, and testified before, the TPSC regarding

China's WTO commitments is appended to USTR's China compliance reports. See USTR, 2002 Report To

Congress On China’s WTO Compliance at Appendices 1 and 2; USTR, 2003 Report To Congress On China’s

WTO Compliance at Appendices 1 and 2.
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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China's accession agreement, the GAO created the electronic database to aid its analysis and to

assist Congress, the Administration, and other interested parties in "analyzing, monitoring, and

enforcing China's WTO commitments."174 The GAO's electronic data base is available at

http://www.gao.gov/special.pubs/gaochnawtodb.zip.

Recently, in the 2004 appropriations legislation for Commerce and related agencies,

Congress criticized federal agency efforts to date in monitoring and enforcing China's WTO

commitments. In particular, the Conference report adopted language in a House report that

found that the International Trade Administration and US Trade Representative had failed to

meet their mission to support U.S. businesses. The conference report stated:

The conferees understand the difficulties in attempting to balance

the positive and the negative effects of a free trade agenda. The

conferees are steadfast in their support of America's trade policy to

create growth and raise living standards around the globe, and in

return to increase the benefits to U.S. workers, farmers, consumers,

and businesses. Yet, the U.S. Government must uphold its

responsibility to enforce trade laws, particularly with China. If

trading partners do not abide by the rules that are set in the global

trading system, then U.S. firms are not competing on a level

playing field.175

Consequently, Congress appropriated additional funds for USTR and Commerce for

monitoring, enforcement, and other China-related activities. In particular, Congress provided $3

million for Commerce to establish an Office of China Compliance176 and directed USTR to

"increase the number of positions dedicated to enforcing the commitments made by the PRC

 

174 See US General Accounting Office, GAO’s Electronic Database of China’s World Trade Organization

Commitments (GAO-03-797R; June 13, 2003), available at http://www.gao.gov/new.items/d03797r.pdf.

175 H. Conf. Rep. 108-401, Making Appropriations For Agriculture, Rural Development, Food And Drug

Administration, And Related Agencies For The Fiscal Year Ending September 30, 2004, And For Other

Purposes Conference Report To Accompany H.R. 2673, 108th Cong., 1st Sess. 574 (Nov. 25, 2003).
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Government upon accession to the WTO."177 Congress also directed USTR "to provide a report

detailing steps taken by the PRC Government toward meeting its WTO obligations."178

Congress also directed USTR to prepare a report about steps taken to coordinate federal

agency monitoring and enforcement efforts respecting trade agreements generally:

The conferees understand that a number of Federal agencies are

involved in monitoring and enforcing our trade agreements. The

conferees agree that robust monitoring and enforcement efforts are

critical and that such efforts must be well coordinated within the

Executive Branch. Accordingly, the conferees direct the USTR,

working with the Department of Commerce and other Federal

agencies, to take steps to assure that monitoring and enforcement

efforts are coordinated among the Federal agencies to maximize

their effectiveness and are based on a strategy that focuses on

priority areas of potential trade violations. USTR is directed to

report back to the Committees on Appropriations on these steps

within 120 days of the enactment of this Act.179

(b) Private sector

In addition to monitoring by US Government agencies, the private sector also has a

strong interest in monitoring China's implementation of its WTO obligations. To the extent there

are problems with China's WTO compliance, US companies are likely to experience the

problems first hand through lack of access to business opportunities that were anticipated as a

result of China's WTO accession. As such, they are often the best source for detecting

 176 Pub. L. 108-199, Div. B, Title II, Jan. 23, 2004, 118 STAT. 65.

177 H. Rep. 108-221, Departments of Commerce, Justice, and State, The Judiciary, and Related Agencies

Appropriations Bill, Fiscal Year 2004, 108th Cong., 1st Sess. 64. (2003).

178 H. Rep. 108-221, Departments of Commerce, Justice, and State, The Judiciary, and Related Agencies

Appropriations Bill, Fiscal Year 2004, 108th Cong., 1st Sess. 64. (2003).

179 H. Conf. Rep. 108-401, Making Appropriations For Agriculture, Rural Development, Food And Drug

Administration, And Related Agencies For The Fiscal Year Ending September 30, 2004, And For Other

Purposes Conference Report To Accompany H.R. 2673, 108th Cong., 1st Sess. 573 (Nov. 25, 2003).
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compliance issues and are an important resource for the US Government agencies involved in

monitoring China. The GAO noted that:

U.S. officials involved in China compliance monitoring obtain

information from an informal, ad hoc network of business

associations and individual companies to get information about

Chinese trade practices and policies, to be alerted to market access

problems and potential WTO violations, and to help weigh policy

options.180

A number of private organizations actively monitor China's compliance with WTO

commitments and prepare periodic assessments of China's progress available on the internet.

Examples of such groups include the following:

Organization Information on China WTO Monitoring

US-China Business Council

http://www.uschina.org

USCBC Analysis of China's WTO Compliance

• China's WTO Implementation Efforts: Year Two (10/03/03)

• Testimony to the TPSC 2003

• USCBC Written Testimony to USTR

• USCBC Membership Priorities WTO Survey Results

• China's WTO Implementation: A Mid-Year Assessment, June 2003

• Testimony before the Subcommittee on E. Asian and Pacific Affairs,

Senate Foreign Relations Committee, March 19, 2003

• China's WTO Implementation Efforts: The First Nine Months

• Testimony before the TPSC Hearing on China WTO, September 18, 2002

• USCBC written testimony for USTR, September 18, 2002

• China's WTO Implementation Efforts July 2002

• Toward WTO: Highlights of PRC Implementation Efforts to Date

September 2001

• Toward WTO: Highlights of PRC Implementation Efforts to Date June

2001

See http://www.uschina.org/public/wto/#wtocompliance

US Chamber of Commerce

http://www.uschamber.com

• China’s WTO Record: A Two-Year Assessment (09-18-03),

http://www.uschamber.com/press/testimony/030918wto.htm

• First Steps: A U.S. Chamber Report on China’s WTO Progress (September

2002), http://www.uschamber.com/press/releases/2002/september/02-

137.htm

 

180 US General Accounting Office, WORLD TRADE ORGANIZATION: First-Year U.S. Efforts to Monitor China's

Compliance, GAO-03-461 (March 2003) at 14..
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Organization Information on China WTO Monitoring

National Association of

Manufacturers (NAM)

http://www.nam.org

WTO Compliance Program

• The China Challenge - 2/10/2004

• NAM 2003 China WTO Compliance Report - 10/8/2003

• NAM 2002 China Compliance Report - 9/11/2002

• USTR Report to Congress on China’s WTO Compliance, 12-11-2002 -

3/7/2003

• China’s WTO Commitments for 2003 - 3/10/2003

• NAM China WTO Compliance Program - 2/22/2002

• China-WTO Trade Compliance Contacts - 3/10/2003

• Impact of China’s WTO Membership on U.S. Business - 1/8/2002 (Special

Report)

• NAM One-Stop Web Source on China’s WTO Commitments - 2/22/2002

• WTO Compliance Program/Documents - 2/20/2003

See http://www.nam.org/secondary.asp?TrackID=&CategoryID=1243

American Chamber of Commerce in

China

http://www.amcham-china.org.cn

• WTO Implementation Report (Fall 2002), http://www.amchamchina.org.cn/publications/position/wto/wto_1.htm

• 2003 White Paper - American Business in China, http://www.amchamchina.org.cn/publications/white/2003/en-1.htm

Coalition of Services Industries

http://www.uscsi.org

China Working Group

• 02/05/2004: Statement o USCC on China’s Compliance with WTO

Commitments in Trade in Services (02-050-04)

• CSI testimony to Trade Policy Staff Committee on China's compliance

with its WTO accession commitments in services trade (10/3/2003)

• CSI letter underlining China's issues of compliance with its WTO

commitments in services (9/5/2003)

See http://www.uscsi.org/groups/china.htm

US Council of International

Business (USCIB);

http://www.uscib.org/index.asp

• Re China: http://www.uscib.org/index.asp?documentID=2758

• Written Comments re China's WTO Compliance (09-10-03);

http://www.uscib.org/%5Cindex.asp?documentID=2742.

International Intellectual Property

Alliance (IIPA)

http://www.iipa.com

• IIPA testimony before USCC on China's failure to comply with its WTO

commitments on copyright protection and enforcement and market access

(February 6, 2004)

• IIPA Comments Concerning China's Compliance with WTO

Commitments (September 10, 2003)

See http://www.iipa.com/countryreports.html

In addition, many private sector companies, trade industry groups, labor unions and

policy coalitions monitor China's WTO compliance with respect to their particular fields of

interest. These groups support US monitoring efforts by informing the USTR and other agencies

about Chinese business practices and any problems US companies are experiencing with market

access. They also are active in submitting comments to the TPSC Subcommittee regarding

China's WTO compliance. These groups include the following:
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• Advanced Medical Technology Association • Grocery Manufacturers of America

• AFL/CIO • International Anti-Counterfeiting Coalition,

Inc.

• AgBiotech Planning Committee • International Intellectual Property Alliance

• American Bar Association • National Cattlemen’s Beef Association

• American Forest and Paper Association • National Cotton Council

• American Insurance Association/American

Council of Life Insurers

• National Electrical Manufacturers Association

• American Iron and Steel Institute • National Food Processors Association

• American Soybean Association • National Food Processors Association

• American Sugar Alliance • Pharmaceutical Research and Manufacturers

Association

• Association of American Publishers, Inc. • Recording Industry Association of America

• Automotive Trade Policy Council • Semiconductor Industry Association

• Blue Diamond Growers • U.S. Grains Council

• Central Soya Company • U.S. Wheat Associates/Wheat Export Trade

Education Committee

• Coalition for a Sound Dollar • U.S. Motorcycle Manufacturers Association

• Conference of Asia Pacific Express Carriers • UPS

• Distilled Spirits Council of the United States,

Inc.

• U.S. Information Technology Office

• Federal Express • U.S. Wheat Producers

• The Fertilizer Institute • Wal-Mart

• Global Alliance for Trade Efficiency • Wine Institute

Source: USTR, 2002 Report To Congress On China’s WTO Compliance (December 11, 2002); USTR, 2003

Report To Congress On China’s WTO Compliance (December 11, 2003).

3. Issues of importance identified in first two years181

In the course of monitoring the first two years of China's WTO membership, U.S.

government and private sector groups have identified a number of areas that raised questions and

concerns about the degree of China's compliance with WTO obligations and protocol

 

181 NOTE: In two previous subsections, this paper reviewed major concerns and questions that were raised by

Members in the first and second annual TRM meetings. That review focused on the issues identified by

Members generally within the overall multilateral TRM process at the WTO. The following section reviews

some of the major China compliance issues identified by the United States, particularly in the US Trade

Representative's 2002 and 2003 annual China compliance reports. Some of the issues identified and reviewed

here overlap with the earlier sections dealing with issues raised within the TRM process, but in the following

section these issues are presented from the perspective of the US and in greater detail.
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commitments. To date, the US Trade Representative has issued reports regarding China's

implementation of its WTO commitments during 2002 and 2003. The 2003 China WTO

compliance report found that China’s implementation efforts failed to meet its commitments in

important areas, and that, in some cases, China has imposed new or additional trade barriers.

USTR identified compliance problems in many areas, including the following:

• agriculture (TRQs on bulk agricultural commodities -- problems with sub-quotas, import

licensing, allocation);

• TRQ on fertilizer;

• services (capitalization and other requirements that exceed international norms in such

service sectors as banking, insurance, construction/engineering, and express courier);

• enforcement of intellectual property rights (continued IPR infringement affecting

products, brands and technologies from a wide range of industries, including films,

music, publishing, software, pharmaceuticals, chemicals, information technology,

consumer goods, electrical equipment, automotive parts and industrial products);

• trading rights (continued restrictions);

• distribution rights (e.g., potential restrictions on the ability to sell imported and Chinamade autos from the same location);

• SPS (new requirements on seafood and a threatened ban on soybeans);

• customs (continued use of inaccurate valuation methods);

• VAT (discriminatory tax on semiconductors, fertilizer, and other products favors

domestic producers over US exports);

• telecom standards (e.g., a requirement to use two mandatory encryption standards in

wireless networks different from internationally-recognized standard used by US

companies);

• use of the China Compulsory Certification (CCC) mark (China safety certification

process is duplicative and discriminatory); and

• transparency (uncertainty and lack of uniformity is common; limited opportunity to

comment on proposed laws and regulations).182

The following describes some of the more prominent and important issues of concern that

have been raised with respect to China's WTO compliance.

 

182 See generally USTR, 2003 Report To Congress On China’s WTO Compliance (December 11, 2003).
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(a) Trading rights

One of the most important commitments made by China in acceding to the WTO was in

the area of trading rights. The area of trading rights covers both the right to import products into,

and export products from, China. Access to and liberalization of trading rights is fundamental to

a company's ability to conduct the full range of business in China.

Before accession, China restricted trading rights both as to the number and type of

enterprises that could operate in China. USTR has described the period before accession as

follows:

In the trading rights area, until shortly before its WTO accession,

China severely restricted the number and types of enterprises that

could import or export, and it also restricted the products that a

particular enterprise could import or export. For the most part,

China confined trading rights to certain state-owned trading and

manufacturing enterprises, which could import or export goods

falling within their approved scopes of business. China also

granted limited trading rights to foreign-invested enterprises,

which could import inputs for their production purposes and export

their finished products.183

China's WTO Commitments

In its accession agreement, with respect to trading rights (i.e., the right to import and

export goods), China committed to a progressive extension of trading rights for foreign-invested

enterprises (FIEs), foreign companies, and foreign individuals. Upon accession, for both

Chinese enterprises and FIEs, China committed to eliminating "any export performance, trade

 

183 USTR, 2003 Report To Congress On China’s WTO Compliance, at 11 (December 11, 2003).
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balancing, foreign exchange balancing and prior experience requirements, such as in importing

and exporting, as criteria for obtaining or maintaining the right to import and export."184

For Chinese-invested enterprises, China agreed to a progressive lessening of the

minimum registered capital requirement to obtain trading rights from RMB 5,000,000 for year

one (Dec. 2001-Dec. 2002) to RMB 3,000,000 for year two (Dec. 2002-Dec. 2003), and to RMB

1,000,000 for year three (Dec. 2003-Dec. 2004). By the end of the 3-year phase-in period, China

also agreed to eliminate the examination and approval system for trading rights.185

For FIEs, China agreed to gradually liberalize the scope and availability of trading rights

according to the following schedule: (1) joint-venture enterprises with minority share foreigninvestment would receive full trading rights one year after accession (Dec. 11, 2002); (2) jointventure enterprises with majority share foreign-investment would receive full trading rights two

years after accession (Dec. 11, 2003); and by the end of the third year after accession (Dec. 11,

2004), all enterprises would receive full trading rights.186

By the end of the third year after accession (Dec. 11, 2004), China agreed to eliminate its

system of examination and approval of trading rights.187 At that time, with the exception of

products reserved for state trading enterprises, Chinese enterprises, FIEs, and individuals

(including sole proprietorships of other WTO Members) would be permitted to export and

import all goods.188 The import goods reserved to state-trading enterprises include: grain,

 

184 Report of the Working Party on the Accession of China, para. 83(a).

185 Report of the Working Party on the Accession of China, para. 83(b).

186 Report of the Working Party on the Accession of China, para. 83(c), (d).

187 Report of the Working Party on the Accession of China, para. 83(a).

188 Report of the Working Party on the Accession of China, para. 83(a).
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vegetable oil, sugar, tobacco, crude oil, processed oil, chemical fertilizer, and cotton.189 The

export goods reserved to state-trading enterprises include: tea, rice, corn, soybean, tungsten ore,

ammonium paratungstates, tungstate products, coal, crude oil, processed oil, silk, unbleached

silk, cotton, cotton yarn, woven fabrics of cotton, antimony ores, antimony oxide, antimony

products, and silver.190 With respect to certain products subject to designated trading, China

agreed to liberalize trading rights within three years of accession (by Dec. 11, 2004). These

products include: natural rubber, timber, plywood, wool, acrylic, and steel.191

China agreed generally to grant trading rights to foreign enterprises and individuals in a

non-discriminatory and non-discretionary manner and that any requirements imposed for

obtaining trading rights would be for customs and fiscal purposes only and would not constitute

a barrier to trade.192 China also agreed that requirements relating to minimum capital and prior

experience would not apply to foreign enterprises and individuals.193

The following box shows the specific commitments regarding trading rights undertaken

by China in the Protocol and Working Party Report.

Protocol on Accession, WT/L/432 (23 November 2001)

5. Right to Trade

1. Without prejudice to China's right to regulate trade in a manner consistent with the WTO Agreement, China

shall progressively liberalize the availability and scope of the right to trade, so that, within three years after

accession, all enterprises in China shall have the right to trade in all goods throughout the customs territory of

China, except for those goods listed in Annex 2A which continue to be subject to state trading in accordance with

this Protocol. Such right to trade shall be the right to import and export goods. All such goods shall be accorded

national treatment under Article III of the GATT 1994, especially paragraph 4 thereof, in respect of their internal

 

189 Report of the Working Party on the Accession of China, Annex 2A1.

190 Report of the Working Party on the Accession of China, Annex 2A2.

191 Report of the Working Party on the Accession of China, Annex 2B.

192 Report of the Working Party on the Accession of China, para. 84(b).

193 Report of the Working Party on the Accession of China, para. 84(b).
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sale, offering for sale, purchase, transportation, distribution or use, including their direct access to end-users. For

those goods listed in Annex 2B, China shall phase out limitation on the grant of trading rights pursuant to the

schedule in that Annex. China shall complete all necessary legislative procedures to implement these provisions

during the transition period.

2. Except as otherwise provided for in this Protocol, all foreign individuals and enterprises, including those

not invested or registered in China, shall be accorded treatment no less favourable than that accorded to

enterprises in China with respect to the right to trade.

Working Party Report, WT/MIN(01)/3 (10 November 2001)

IV. POLICIES AFFECTING TRADE IN GOODS

A. TRADING RIGHTS

1. General

80. ***

83. The representative of China confirmed that during the three years of transition, China would progressively

liberalize the scope and availability of trading rights.

(a) The representative of China confirmed that, upon accession, China would eliminate for both Chinese and

foreign-invested enterprises any export performance, trade balancing, foreign exchange balancing and

prior experience requirements, such as in importing and exporting, as criteria for obtaining or

maintaining the right to import and export.

(b) With respect to wholly Chinese-invested enterprises, the representative of China stated that although

foreign-invested enterprises obtained limited trading rights based on their approved scope of business,

wholly Chinese-invested enterprises were now required to apply for such rights and the relevant

authorities applied a threshold in approving such applications. In order to accelerate this approval process

and increase the availability of trading rights, the representative of China confirmed that China would

reduce the minimum registered capital requirement (which applied only to wholly Chinese-invested

enterprises) to obtain trading rights to RMB 5,000,000 for year one, RMB 3,000,000 for year two, RMB

1,000,000 for year three and would eliminate the examination and approval system at the end of the

phase-in period for trading rights.

(c) The representative of China also confirmed that during the phase-in period, China would progressively

liberalize the scope and availability of trading rights for foreign-invested enterprises. Such enterprises

would be granted new or additional trading rights based on the following schedule. Beginning one year

after accession, joint-venture enterprises with minority share foreign-investment would be granted full

rights to trade and beginning two years after accession majority share foreign-invested joint-ventures

would be granted full rights to trade.

(d) The representative of China also confirmed that within three years after accession, all enterprises in

China would be granted the right to trade. Foreign-invested enterprises would not be required to establish

in a particular form or as a separate entity to engage in importing and exporting nor would new business

licence encompassing distribution be required to engage in importing and exporting.

The Working Party took note of these commitments.

84. (a) The representative of China reconfirmed that China would eliminate its system of examination and
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approval of trading rights within three years after accession. At that time, China would permit all

enterprises in China and foreign enterprises and individuals, including sole proprietorships of other WTO

Members, to export and import all goods (except for the share of products listed in Annex 2A to the Draft

Protocol reserved for importation and exportation by state trading enterprises) throughout the customs

territory of China. Such right, however, did not permit importers to distribute goods within China.

Providing distribution services would be done in accordance with China's Schedule of Specific

Commitments under the GATS.

(b) With respect to the grant of trading rights to foreign enterprises and individuals, including sole

proprietorships of other WTO members, the representative of China confirmed that such rights would be

granted in a non-discriminatory and non-discretionary way. He further confirmed that any requirements

for obtaining trading rights would be for customs and fiscal purposes only and would not constitute a

barrier to trade. The representative of China emphasized that foreign enterprises and individuals with

trading rights had to comply with all WTO-consistent requirements related to importing and exporting,

such as those concerning import licensing, TBT and SPS, but confirmed that requirements relating to

minimum capital and prior experience would not apply.

The Working Party took note of these commitments.

2. Designated Trading

85. The representative of China stated that China would adjust and expand its list of enterprises under its

designated trading regime annually during the transition period, leading up to full implementation of the

commitment contained in Annex 2B. The current criteria for enterprises under the designated trading regime

included registered capital, import and export volume and the import volume of products subject to designated

trading in the previous year, bank credit rating and profits and losses.

86. Members of the Working Party noted China's commitment that it would phase out the limitation on the

grant of trading rights for goods specified in Annex 2B of its Draft Protocol within three years after accession.

In responding to questions raised by some members of the Working Party, the representative of China

confirmed that China would progressively liberalize the right to trade in such goods by increasing the number

of designated entities permitted to import goods in each of the three years of the transition period specified in

Annex 2B. The representative of China added that China would eliminate import and export volume as a

criterion for obtaining the right to trade these products, reduce minimum capitalization requirements and extend

the right to register as designated importing and exporting enterprises to enterprises that used such goods in the

production of finished goods and enterprises that distributed such goods in China. At the end of three years, all

enterprises in China and all foreign enterprises and individuals would be permitted to import and export such

goods throughout the customs territory of China. During the transition period, none of the criteria applicable

under the designated trading regime would constitute a quantitative restriction on imports or exports. The

Working Party took note of these commitments.

Compliance problems regarding trading rights

In the U.S. Trade Representative's China compliance report for 2002, USTR noted that,

pursuant to its commitments, China was drafting regulations to extend trading rights to all

domestic and foreign enterprises by the end of 2004, and that it was expected that such
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regulations would provide for automatic issuance of trading licenses based on routine

applications and without imposing threshold requirements such as equity ownership, registered

capital, scope of business, prior experience or other threshold requirements. USTR noted that it

would monitor developments regarding trading rights.194

In its 2003 monitoring report, USTR noted that, with respect to Chinese enterprises,

China appeared to have implemented its trading rights commitments:

With the issuance of the Circular Concerning the Rules on the

Administration of Import and Export Rights in July 2001, and the

issuance of the Notice on the Rectification of Import and Export

Qualification Standards and Verification Procedures in August

2003, China has kept pace with the required reductions in the

minimum registered capital requirement for Chinese enterprises to

obtain trading rights. Currently, the minimum registered capital

for Chinese manufacturing enterprises is RMB 0.5 million

($60,300), and the minimum registered capital for Chinese trading

enterprises is RMB 1 million, except in the central and western

regions, where the requirement was RMB 0.5 million.195

Otherwise, however, with respect to foreign-invested enterprises (FIEs), USTR identified

a number of shortfalls in China's compliance with its trading rights commitments. First, as to

joint ventures with minority foreign ownership, China had not yet made full trading rights

available (a commitment that was to be have been fulfilled by December 11, 2002). Second,

with respect to joint ventures with majority foreign ownership, China failed to meet the deadline

for issuing provisions allowing for full trading rights to be available (a commitment that was to

have been fulfilled by December 11, 2003).196 Instead, USTR reported that eligibility for trading

 

194 See USTR, 2002 Report To Congress On China’s WTO Compliance, at 19 (December 11, 2002).

195 USTR, 2003 Report To Congress On China’s WTO Compliance, at 12 (December 11, 2003).

196 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 12 (December 11, 2003).
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rights in China continued to be limited by pre-accession conditions such as requirements related

to minimum registered capital, import levels, export levels and prior experience.197 These types

of conditions on trading rights were common before accession but were to have been eliminated

as part of China's accession commitments.198

China's current rules regarding FIEs were set out in its Provisional Rules for the

Establishment of Chinese-Foreign Equity Joint Venture Foreign Trade Companies, issued in

January 2003. Under these rules, the formation and operation of FIEs (with minority foreign

ownership immediately and majority foreign ownership after December 11, 2003) are

conditioned on certain requirements, including: (1) in the three preceding years, an average of at

least $30 million in annual trade with China ($20 million if the FIE registers in central or western

China), (2) a minimum registered capital of RMB 50 million ($6.03 million), and (3) employees

experienced in international trade.199

Concerned with China's continuing restrictions on the trading rights of FIEs, the United

States, throughout 2003, engaged China on this issue through bilateral talks and urged China to

 

197 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 12 (December 11, 2003).

198 USTR notes:

Since well before China’s accession, pursuant to China’s Foreign Trade Law, foreign-invested

manufacturing enterprises have had the right to import inputs for production purposes and the

right to export their finished goods, without the need for prior approval. In January 2001, China

expanded the import rights of some foreign-invested manufacturing enterprises with the issuance

of the Supplementary Provisions (II) to the Provisional Regulations Governing the Establishment

of Investment-type Companies by Foreign Business Investment. In July 2001, shortly before its

accession, China granted limited additional export rights to some foreign-invested manufacturing

enterprises with the issuance of the Circular Concerning the Extension of Import and Export

Rights for Foreign-Funded Enterprises. Both of these measures, however, conditioned trading

rights eligibility on requirements related to minimum registered capital, import levels, export

levels and/or prior experience, among others.

USTR, 2003 Report To Congress On China’s WTO Compliance, at 12-13 (December 11, 2003).

199 USTR, 2003 Report To Congress On China’s WTO Compliance, at 13 (December 11, 2003).
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Final Report, March 19, 2004 Page 152

conform its trading rights regulations to its WTO commitments.200 The United States noted that,

by December 11, 2004, China must implement final laws and regulations creating automatic

trading rights for all enterprises, including Chinese enterprises, Chinese-foreign joint ventures,

wholly foreign-owned enterprises and foreign individuals (including sole proprietorships).201

In addition to USTR's China compliance report, the National Association of

Manufacturers (NAM) issued a report in 2003 on China's WTO compliance. Similar to USTR,

NAM's report identified compliance problems in the area of trading rights. NAM reported that

China was "not fulfilling its commitment to allow foreign joint ventures to import and sell

products (e.g., tires, automobiles, auto parts and industrial equipment) in China."202 For

example, NAM said that a "major tire company" had experienced restrictions on its trading rights

that it had not anticipated.203 According to the tire company, the Chinese government allowed

trading rights only to "new joint ventures" and required "Chinese and foreign partners to have

separately done U.S. $30 million in trade with China over each of the three preceding years."204

 

200 USTR, 2003 Report To Congress On China’s WTO Compliance, at 13 (December 11, 2003). The United

States discussed the issue of trading rights with China at the first and second Trade Dialogues held in February

2003 and November 2003, respectively. In addition, the United States raised this issue at "a series of highlevel meetings" in late 2003, as well as before the WTO's Market Access Committee in October 2003, in the

context of the Transitional Review Mechanism at the WTO. Id.

201 USTR, 2003 Report To Congress On China’s WTO Compliance, at 13 (December 11, 2003).

202 See National Association of Manufacturers, Review Of China’s Compliance With Its WTO Accession

Commitments: Comments Submitted to the Interagency Trade Policy Staff Committee, September 10, 2003

(available at www.nam.org).

203 Id.

204 Id. China's restrictive requirement of $30 million in annual trade for three prior years was cited in USTR's

2003 report as well. See U.S. Trade Representative, 2003 Report To Congress On China’s WTO Compliance,

at 13 (December 11, 2003).
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Compliance positives regarding trading rights

Notwithstanding its identification of compliance problems regarding trading rights,

USTR's 2003 report also highlights a positive development concerning trading rights. In

November 2003, one year ahead of China's commitment, China authorized trading rights for

certain U.S. automobile companies, which will permit these companies to import significant

numbers of U.S.-manufactured automobiles into China and, as well, sell and service them

through their own distribution networks.

(b) Automotive issues (financing, market access)

In the first two years of China's WTO membership, there were a number of compliancerelated problems identified relating to commitments regarding automobiles and auto parts.

China's WTO Commitments

With respect to automotive issues, China assumed various obligations and commitments

in its accession agreement, among them commitments on phasing out quotas on autos and auto

parts and opening up motor vehicle financing services by non-bank financial institutions. In

particular, with respect to auto quotas, China agreed to phase out quotas on motor vehicles and

auto parts by January 1, 2005, with a 15% annual growth in the allowable quota until

elimination.205 China also agreed to detailed rules on quota administration, including criteria for

 

205 See Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001) Annex 3

(Non-Tariff Measures Subject to Phased Elimination); Report of the Working Party on the Accession of China,

WT/MIN(01)/3 (10 November 2001), Annex 3 (Non-Tariff Measures Subject to Phased Elimination).
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 154

allocating quotas.206 In addition, China agreed "to make its quota system operational in time for

applications to be accepted and quota allocations to take place by December 31, 2001."207

With respect to motor vehicle financing, China agreed that non-bank financial institutions

would be allowed to perform auto financing services without any market access or national

treatment restrictions.208 China assumed this commitment upon accession.

Compliance problems regarding auto quotas

Over the past two years, there have been chronic problems and delays concerning the

administration and allocation of quotas on autos. The U.S. Trade Representative notes generally

that "from the outset, China’s quota system was beset with problems."209 The State Council did

not issue the necessary regulations on time (not until mid-December 2001), and the authorities

responsible for implementing the quota system (MOFTEC for some products; State Economic

and Trade Commission (SETC) for other products) were late in allocating quotas. In addition,

the regulations themselves appeared to be inconsistent in certain respects with WTO

commitments.

In the case of quotas on autos, MOFTEC issued implementing rules shortly after the State

Council issued its regulations in mid-December 2001 but the quota application process did not

 

206 See Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001), Section

IV.B.8. (Quantitative Import Restrictions, including Prohibitions and Quotas), paras. 121-131.

207 USTR, 2003 Report To Congress On China’s WTO Compliance, at 23 (December 11, 2003).

208 See Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001), Annex 9

(Schedule of Specific Commitments on Services, WT/MIN(01)/3/Add.1, 10 November 2001) at 7.B. (Banking

and Other Financial Services).

209 USTR, 2002 Report To Congress On China’s WTO Compliance, at 12 (December 11, 2002); U.S. Trade

Representative, 2003 Report To Congress On China’s WTO Compliance, at 23 (December 11, 2003).
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Final Report, March 19, 2004 Page 155

open until February 2002 and MOFTEC did not begin to allocate quotas until late April 2002.210

Even then, however, additional problems arose due to lack of transparency. Parties could not

determine clearly whether quotas had been allocated accurately. Moreover, as the U.S. Trade

Representative noted, "it appeared that MOFTEC was creating false fill rates by filling the quota

for autos with auto parts (other than the key auto parts allowed by China’s accession

agreement).211 Thus, by the end of 2002, the auto quotas had not been fully allocated.

The same types of problems with the auto quota system that were experienced in 2002

continued during 2003. Again, MOFTEC was late in issuing quota allocations, with resulting

uncertainty and disruption in the wholesale and retail markets for imported autos.212 USTR

commented: "Given the persistence of these problems, it appears that China’s poor

implementation of its auto quota commitments is not due simply to difficulties in implementing a

new quota system."213

Throughout 2002 and 2003, the United States voiced its concerns over China's

administration of its auto quota system, including problems with the regulations, implementation,

transparency, and allocations, in various bilateral meetings and at the Trade Dialogues held in

February and November 2003. In addition, at the WTO, in cooperation with other WTO

Members (EC; Japan), the United States raised these issues in the context of the regular meetings

 

210 USTR, 2002 Report To Congress On China’s WTO Compliance, at 12 (December 11, 2002); U.S. Trade

Representative, 2003 Report To Congress On China’s WTO Compliance, at 23 (December 11, 2003).

211 USTR, 2003 Report To Congress On China’s WTO Compliance, at 23 (December 11, 2003).

212 USTR, 2003 Report To Congress On China’s WTO Compliance, at 23 (December 11, 2003).

213 USTR, 2003 Report To Congress On China’s WTO Compliance, at 23 (December 11, 2003).
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Final Report, March 19, 2004 Page 156

of the WTO Committee on Market Access and at the first and second TRM reviews held by the

Market Access Committee in September 2002 and October 2003, respectively.214

Partial resolution of problems regarding auto quotas

The substantive problems encountered in 2002 and 2003 with China's auto quota system

(late allocations; transparency; etc.) have not been resolved. However, for certain U.S. auto

companies, China resolved the problem of auto quotas when, in November 2003:

China announced that certain U.S. auto companies would be

authorized to import sizeable quantities of U.S.-produced autos in

2004 without having to use Chinese enterprises holding quotas.

This development effectively ends the auto quota system for these

companies as of the end of 2003, one year ahead of schedule.215

 

214 USTR, 2002 Report To Congress On China’s WTO Compliance, at 12 (December 11, 2002); U.S. Trade

Representative, 2003 Report To Congress On China’s WTO Compliance, at 23 (December 11, 2003).

215 USTR, 2003 Report To Congress On China’s WTO Compliance, at 24 (December 11, 2003). Press reports

indicated that the U.S. companies benefiting from China's decision included General Motors, Ford, and

DaimlerChrysler. See USTR’s China Report More Skeptical, But Still Downplays WTO Action, INSIDE USCHINA TRADE, December 31, 2003.

USTR said China in November said it had given trading rights to “certain U.S. auto

companies” one year ahead of schedule, which will let these select companies export cars to

China. DaimlerChrysler and General Motors were among these companies (Inside US-China

Trade, Nov. 19)."

The November 19 report referenced above stated:

Zhang’s visit was also used to announce separate contracts with General Motors, Ford and

DaimlerChrysler worth several billion dollars. According to a Nov. 12 GM release, China

will buy 4,500 complete vehicles in 2004 and 2005, a deal worth about $1.3 billion. The

company also said it would export another $1.1 billion in components for the assembly of GM

cars produced in China, and that several smaller agreements have been struck to export

several thousand other GM cars to individual Chinese importers.

In a separate Nov. 12 release, DaimlerChrysler said it also has an agreement with China to

export 4,500 cars, and a Chinese release indicated that an agreement has also been reached

with Ford.

U.S. Agricultural, Industrial Exports Surge In Recent Weeks, INSIDE US-CHINA TRADE, November 19, 2003.
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Compliance problems regarding motor vehicle financing

Despite agreeing that, upon accession, it would open up motor vehicle financing services

to non-bank financial institutions, China failed to satisfy this commitment in 2002 and 2003.

Because China had not opened this sector as promised, commercial banks were the only financial

entities providing motor vehicle loan services. The U.S. Trade Representative's 2003

compliance report noted that one reason for China's failure to comply was China's long delay in

issuing proposed regulations:

It was not until near the end of its second year of WTO

membership that China finally issued all of the measures necessary

to allow foreign financial institutions to offer auto loans. In June

2002 and again in September 2002, the Chinese regulator, the

China Banking Regulatory Commission (CBRC), released draft

regulations for comment.216

Even once the regulations were drafted, however, the United States had concerns about

whether the regulations were consistent with China's WTO obligations. In particular, the United

States identified "excessive capitalization requirements, excessive net asset requirements and an

unnecessarily long approval process" as WTO-inconsistent provisions.217 The United States, in

cooperation with the U.S. industry, submitted comments to the CBRC regarding both the June

2002 and September 2002 draft regulations. In addition, the United States pressed China for

compliance with its commitments in bilateral meetings during 2002 and 2003 and in meetings of

the Council for Trade in Services at the WTO (including in the context of the first TRM in

October 2002).218

 

216 USTR, 2003 Report To Congress On China’s WTO Compliance, at 58-59 (December 11, 2003).

217 USTR, 2003 Report To Congress On China’s WTO Compliance, at 59 (December 11, 2003).

218 USTR, 2003 Report To Congress On China’s WTO Compliance, at 59 (December 11, 2003).
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Final Report, March 19, 2004 Page 158

In October 2003, the CBRC finally issued final regulations. The U.S. Trade

Representative noted, however, that "[a]lthough the final regulations reduced the capital

requirements from the levels set in the earlier drafts, they still remain relatively high, as the

minimum registered capital is RMB 300 million ($36.2 million), and the minimum paid-in

capital is RMB 500 million ($60.3 million)."219 But, notwithstanding that China had finally

issued regulations, the motor vehicle financing sector was still not open to foreign financial

institutions until China issued implementing rules establishing the procedures for applying for

licenses to provide financing services. The CBRC issued implementing rules one month later, in

November 2003. The United States has urged China to act expeditiously on license applications.

(c) Financial services

Banking services

China's WTO Commitments

In its accession agreement, China committed to liberalize banking services over a 5 year

phase-in period. Banking services covered include acceptance of deposits and other repayable

funds from the public, lending of all types, financial leasing, payment and money transmission

services, guarantees and commitments, and trading of foreign exchange for own account or that

of customers. China agreed that, upon accession, US and other foreign banks would be

permitted to conduct foreign currency business with Chinese enterprises and individuals

throughout China without restriction and, within certain specified geographic locations, would be

permitted to conduct local currency business with FIEs and foreign individuals. The provision of

 

219 USTR, 2003 Report To Congress On China’s WTO Compliance, at 59 (December 11, 2003).
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Final Report, March 19, 2004 Page 159

local currency business services to Chinese enterprises and individuals was subject to a

scheduled phase-in. Within 2 years after accession, US and other foreign banks would be

permitted to conduct domestic currency business with Chinese enterprises, subject to certain

geographic restrictions, and within 5 years after accession, US and other foreign banks would be

permitted to conduct domestic currency business with Chinese individuals, and all geographic

restrictions would be lifted.

China's banking services commitments as set out in its services schedule are summarized

below.

China WTO Commitments -- Banking Services220

At accession

12-11-01

Within 1 year

by 12-11-02

Within 2 years

by 12-11-03

Within 3 years

by 12-11-04

Within 4 years

by 12-11-05

Within 5 years

by 12-11-06

Geographic coverage:

• foreign currency business: no restriction

• local currency business: open to

Shanghai, Shenzen, Tianjin and Dalian

Local currency business qualifications:

• 3 years business operation in China

• profitable for 2 consecutive years prior

to application

Clients:

• foreign currency business, no restriction

• foreign financial institutions licensed for

local currency business in one region of

China may service clients in any other

region that has been opened for such

business

Licensing:

• criteria: solely prudential (no economic

needs test or quantitative limits on licenses)

• condition to establish a subsidiary of

foreign bank: total assets of more than US$

10 billion at end of year prior to application

• condition to establish a branch of foreign

bank: total assets of more than US$ 20

billion at end of year prior to application

• condition to establish a Chinese-foreign

joint bank: total assets of more than US$

10 billion at end of year prior to application

Geographic

coverage:

• local currency

business: open to

Guangzhou,

Zhuhai, Qingdao,

Nanjing, and

Wuhan

Geographic

coverage:

• local currency

business: open to

Jinan, Fuzhou,

Chengdu, and

Chongqing

Clients:

• local currency

business: may

provide services

to Chinese

enterprises

Geographic

coverage:

• local currency

business: open to

Kinming, Beijing,

and Xiamen

Geographic

coverage:

• local currency

business: open to

Shantou, Ningbo,

Shenyang, and

Xi'an

Geographic

coverage:

• local currency

business: all

geographic

restrictions

removed

Clients:

• local currency

business: may

provide services

to all Chinese

clients

Licensing:

• eliminate any

existing nonprudential

measures

restricting ownership, operation,

and juridical form

of foreign

financial

institutions

(including on

internal branching

and licenses)

 

220 Source: Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001), Annex

9 (Schedule of Specific Commitments on Services, WT/MIN(01)/3/Add.1, 10 November 2001) at 7.B.

(Banking and Other Financial Services).
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China's record of compliance regarding banking services

By and large, over the past two years, China has kept pace with its commitments to

liberalize banking services. Most recently, for instance, consistent with its commitments, the

People’s Bank of China (PBOC) announced in December 2003 that foreign banks will be

permitted to conduct domestic currency business with Chinese enterprises. However, the US

government has expressed concerns over China's cautious approach to approving banking

licenses and branches and with China's imposition of prudential requirements on foreign banks

that exceed international norms.

After accession, the People’s Bank of China (PBOC) issued regulations and

implementing rules covering foreign-funded financial institutions. These regulations became

effective February 1, 2002. The U.S. Trade Representative has noted that although PBOC's

regulations were timely, China lagged in opening banking services to foreign banks. In

particular, USTR said that PBOC had imposed "working capital requirements and other

prudential rules that far exceeded international norms" and that these measures made it more

difficult for foreign banks to establish headquarters and branches in China.221 At first, in 2002,

the PBOC acted slowly on applications by foreign banks to conduct foreign or local currency

business with FIEs and foreign individuals, but by October 2003, the PBOC had approved the

applications of 13 US banks to establish branches or representative offices in China. USTR

noted, however, that only large major banks could meet the application requirements.222

In its 2003 compliance report, USTR notes that the PBOC claims that the domestic

currency business of US banks in China, although limited to business with FIEs and foreign

 

221 USTR, 2003 Report To Congress On China’s WTO Compliance, at 56 (December 11, 2003).
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individuals, has grown rapidly in the last two years. According to the PBOC, US banks' deposits

and assets increased in 2002 by 75% and 14%, respectively, and in the first half of 2003, further

increased by 20% (deposits) and by 10% (assets).

Despite the growth of US banks' presence in China, the US government has repeatedly

urged China to conform its prudential requirements for foreign banks to international norms.

Over the past two years, the US raised this issue with China in bilateral meetings in 2002 and

2003, at meetings of the WTO Committee on Trade in Financial Services, and in the context of

the first and second TRM meetings of the Financial Services Committee in October 2002 and

November 2003. USTR's 2003 report states that it has achieved a degree of progress with China

on this issue as, in December 2003, the PBOC "reduced working capital requirements for various

categories of foreign banks by at least RMB 100 million."223

Insurance services

China's WTO Commitments

In its accession agreement, China agreed to liberalize the insurance services sector by

granting expanded ownership rights to foreign insurers and by phasing out geographic

restrictions within three years of accession. China committed that it would issue licenses only on

the basis of prudential criteria, and that it would not apply any economic needs test or

quantitative limits. China also agreed that it would allow internal branching for foreign insurers

consistent with the phased elimination of geographic restrictions. In summary, China agreed to

the following phased-in expansion of ownership rights:

 222 USTR, 2003 Report To Congress On China’s WTO Compliance, at 56 (December 11, 2003).

223 USTR, 2003 Report To Congress On China’s WTO Compliance, at 56 (December 11, 2003).
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Type of insurance services Form of establishment permitted

foreign non-life insurers branch or joint venture with 51% foreign

ownership

foreign life insurers joint venture with partner of choice with

50% foreign ownership

Upon accession

large scale commercial risks, reinsurance and

international marine, aviation and transport

insurance and reinsurance

joint venture with foreign equity of no

more than 50%

Within 2 years of

accession

foreign non-life insurers wholly-owned subsidiary

Within 3 years of

accession

large scale commercial risks, reinsurance and

international marine, aviation and transport

insurance and reinsurance

joint venture with foreign equity of no

more than 51%

Within 5 years of

accession

large scale commercial risks, reinsurance and

international marine, aviation and transport

insurance and reinsurance

wholly-owned subsidiary

China's insurance services commitments as set out in its services schedule are

summarized below.

China WTO Commitments -- Insurance Services224

At accession

12-11-01

Within 1 year

by 12-11-02

Within 2 years

by 12-11-03

Within 3 years

by 12-11-04

Within 4 years

by 12-11-05

Within 5 years

by 12-11-06

Form of establishment:

• foreign non-life insurer as branch or JV

with 51% foreign ownership

• foreign life insurer as JV with partner of

choice with 50% foreign ownership

• brokerages for insurance of large scale

commercial risks, reinsurance, international

marine, aviation & transport insurance and

reinsurance as JV with foreign equity no

more than 50%

• other brokerage services unbound

• internal branching permitted consistent with

phase out of geographic restrictions

Form of

establishment:

• foreign non-life

insurer as whollyowned subsidiary

Form of

establishment:

• brokerages for

insurance of large

scale commercial

risks, reinsurance,

international marine, aviation &

transport insurance and reinsurance as JV with

foreign equity no

more than 51%

Form of

establishment:

• brokerages for

insurance of large

scale commercial

risks, reinsurance,

international marine, aviation &

transport insurance and reinsurance as wholly

foreign-owned

subsidiary

Geographic coverage:

• Shanghai, Guangzhou, Dalian, Shenzen and

Foshan

Geographic

coverage:

• Beijing, Chengdu,

Chonqing, Fuzhou, Suzhou, Xiamen, Ningbo,

Shenyang, Wuhan

& Tianjin

Geographic

coverage:

• no restrictions

 

224 Source: Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001), Annex

9 (Schedule of Specific Commitments on Services, WT/MIN(01)/3/Add.1, 10 November 2001) at 7.A. (All

Insurance and Insurance-Related Services).
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At accession

12-11-01

Within 1 year

by 12-11-02

Within 2 years

by 12-11-03

Within 3 years

by 12-11-04

Within 4 years

by 12-11-05

Within 5 years

by 12-11-06

Business scope:

• foreign non-life insurers may provide

"master policy" & large scale commercial

risk insurance w/o geographic restriction

• foreign insurance brokers may provide

"master policy" no later than Chinese

brokers

• foreign non-life insurers may provide

insurance of enterprises abroad as well as

property, related liability, and credit insurance of FIEs in China

• foreign insurers may provide individual

(not group) insurance to foreigners and

Chinese citizens

• foreign insurers may provide reinsurance

services for life and non-life insurance as a

branch, JV, or wholly foreign-owned

subsidiary, w/o quantitative or geographic

restrictions on number of licenses issued

Business scope:

• foreign non-life

insurers may provide full range of

non-life insurance

services to foreign

& domestic

clients

Business scope:

• foreign insurers

may provide

health insurance,

group insurance &

pension/annuities

insurance to foreigners and Chinese citizens

Licenses:

• no economic needs test or quantitative

limits

• qualifications for foreign insurance

institution are:

• foreign insurance company with more than

30 years experience in WTO member;

• representative office in China for 2

consecutive years;

• total assets of more than US$ 5 billion at

end of year prior to application (except for

brokers);

• brokers shall have total assets of more than

US$ 500 million

Licenses:

• foreign insurance

brokers shall have

total assets of

more than US$

400 million

Licenses:

• foreign insurance

brokers shall have

total assets of

more than US$

300 million

Licenses:

• foreign insurance

brokers shall have

total assets of

more than US$

200 million

National treatment:

• foreign insurance institutions may not

engage in statutory insurance business

• require 20% cession of all lines of primary

risks for non-life, personal accident and

health insurance business with appointed

Chinese Reinsurance Company

National treatment:

• require 15%

cession of all lines

of primary risks

for non-life, personal accident and

health insurance

business with appointed Chinese

Reinsurance

Company

National treatment:

• require 10%

cession of all lines

of primary risks

for non-life, personal accident and

health insurance

business with appointed Chinese

Reinsurance

Company

National treatment:

• require 5%

cession of all lines

of primary risks

for non-life, personal accident and

health insurance

business with appointed Chinese

Reinsurance

Company

National treatment:

• no compulsory

cession required

China's record of compliance regarding insurance services

Following accession, China’s insurance regulator, the China Insurance Regulatory

Commission (CIRC), issued new insurance regulations covering foreign insurance companies

which implemented many of China’s commitments. However, the new regulations also raised
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new problems with respect to three important areas: capitalization requirements, transparency

and branching.225

In its 2003 compliance report, USTR states that CIRC's capitalization requirements are

"significantly more exacting" than in other countries and that they "limit the ability of foreign

insurers to make necessary joint venture arrangements."226 The new regulations also are not

transparent in that they allow substantial bureaucratic discretion in licensing actions and do not

provide predictability to foreign insurers. With respect to the issue of branching, even though

China made specific commitments concerning branching,227 the new regulations are vague

regarding branching rights of foreign insurers. Moreover, CIRC has required that non-life

insurers that already have branches in China and wish to establish a new branch or sub-branch in

China must first establish as a subsidiary. In USTR's view, this requirement is both costly and

unnecessary.228 USTR also noted that China has not applied this rule consistently in that CIRC

apparently waived it, without explanation, for at least one foreign insurer.229

In 2002, the United States held a number of bilateral discussions with CIRC, MOFTEC

and the State Council at which it raised its concerns about the issues of capitalization

requirements, transparency, and branching.230 In cooperation with Canada, the EC, Japan and

 

225 USTR, 2003 Report To Congress On China’s WTO Compliance, at 57 (December 11, 2003).

226 USTR, 2003 Report To Congress On China’s WTO Compliance, at 57 (December 11, 2003).

227 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 57 (December 11, 2003): "With regard

to branching, China scheduled a commitment to allow non-life firms to establish as a branch in China upon

accession and to permit internal branching in accordance with the lifting of China’s geographic restrictions.

China further agreed that foreign insurers already established in China that were seeking authorization to

establish branches or sub-branches would not have to satisfy the requirements applicable to foreign insurers

seeking a license to enter China’s market."

228 USTR, 2003 Report To Congress On China’s WTO Compliance, at 57 (December 11, 2003).

229 USTR, 2003 Report To Congress On China’s WTO Compliance, at 57 (December 11, 2003).

230 USTR, 2003 Report To Congress On China’s WTO Compliance, at 57 (December 11, 2003).
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Switzerland, the US also raised these issues at the WTO before the Committee on Trade in

Financial Services in the context of the first TRM in October 2002.231 As a result of their

bilateral discussions, the US and China agreed to set up a working group to discuss insurance

issues, with an emphasis on capitalization requirements and other prudential standards. The US

and CIRC working group first met in December 2002.

Throughout 2003, the US continued to press China on insurance issues through a number

of high-level bilateral meetings, including the Trade Dialogues in February and November 2003.

Progress began to be evident when, in August 2003, China issued new draft implementing rules

regarding capitalization requirements and transparency. These draft rules clarify licensing

procedures and lower capital requirements for national licenses from RMB 500 million ($60.3

million) to RMB 200 million ($24.1 million) and for branch offices from RMB 50 million ($6.03

million) to RMB 20 million ($2.41 million).232

On a positive note concerning China's compliance, USTR reports that CIRC lifted, ahead

of schedule, certain geographic restrictions on foreign life insurers.233

(d) Administration of TRQs in agriculture

China's WTO Commitments

Prior to WTO accession, China maintained a quota system on imports of bulk agricultural

products. When China acceded to the WTO, China agreed to expand market access by reducing

 

231 USTR, 2003 Report To Congress On China’s WTO Compliance, at 57 (December 11, 2003).

232 USTR, 2003 Report To Congress On China’s WTO Compliance, at 58 (December 11, 2003).

233 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 58 (December 11, 2003): "In early

2002, CIRC approved life insurance operations for U.S. insurers in Beijing, Suzhou and Tianjin, two years

before China had committed to do so in its services schedule. In 2003, CIRC approved life insurance
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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Final Report, March 19, 2004 Page 166

tariffs on a wide range of agricultural products and committed to ending quotas and establishing

tariff rate quotas (TRQs) on the following bulk commodities: wheat, corn, rice, soybean oil, palm

oil, rapeseed oil, sugar, wool and cotton. With respect to the TRQs, China also committed to (1)

administering the TRQs transparently and making predictable, uniform, fair and

nondiscriminatory decisions based on specified time periods, administrative procedures and

requirements, (2) reserving a portion of the TRQs for non-state trading enterprises, (3)

progressively expanding the in-quota amount over a 3-4 year implementation period, (4)

eliminating TRQs on soybean oil, palm oil, and rapeseed oil by January 1, 2006, and (5)

designating a single central authority to allocate and re-allocate TRQs.

The following box shows China's general commitments regarding tariff rate quotas as set

out in the Working Party Report.

Working Party Report, WT/MIN(01)/3 (10 November 2001)

7. Tariff Rate Quotas

112. * * *

115. The representative of China further noted that, in undertaking market-oriented reform in the agricultural

sector, China had made progress in freeing agricultural products from state pricing and in guiding farmers to

adjust the structure of agricultural production based on the demands of the market. In connection with that

reform process, in the bilateral negotiations with Members, China committed that, upon accession, it would

eliminate TRQs on a number of products and subject these only to tariffs. The products concerned were barley,

soybeans, rapeseed, peanut oil, sunflower seed oil, corn oil, and cottonseed oil. In addition, China would

replace quantitative import restrictions on sugar, cotton and three types of fertilizers (DAP, NPK and urea) by

TRQs. The Working Party took note of these commitments.

116. The representative of China stated that upon accession, China would ensure that TRQs were administered

on a transparent, predictable, uniform, fair and non-discriminatory basis using clearly specified timeframes,

administrative procedures and requirements that would provide effective import opportunities; that would

reflect consumer preferences and end-user demand; and that would not inhibit the filling of each TRQ. China

would apply TRQs fully in accordance with WTO rules and principles and with the provisions set out in China's

Schedule of Concessions and Commitments on Goods. The Working Party took note of these commitments.

 operations for a U.S. insurer in Chongqing nearly one year ahead of schedule. Other foreign life insurers must

now be provided the same access to those cities."
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117. The representative of China confirmed that for the goods listed in Annex 2 of the Draft Protocol that

were subject to a TRQ, China would also apply the provisions of its Schedule relating to TRQ administration

and related commitments in the Draft Protocol, including the grant of trading rights to non-state trading entities

to import the TRQ allocations set aside for importation by such entities. For products in Annex 2 of the Draft

Protocol that were subject to designated trading, the representative of China confirmed that China would ensure

that additional enterprises granted trading rights in accordance with China's commitments to phase out

designated trading would not be disadvantaged in the allocation of TRQ. The Working Party took note of these

commitments.

118. * * *

119. The representative of China confirmed that the role of sub-national bodies would be limited to purely

administrative operations, such as receiving applications from end-users and forwarding them to the central

authority; receiving queries and transmitting these to the central authority; reporting on allocation and

reallocation decisions made by the central authority and providing information regarding such allocations and

reallocations upon request; checking the information in the applications to verify that it met the published

criteria; notifying applicants of any deficiencies in their applications; and providing applicants with an

opportunity to cure deficiencies in their applications. After the central authority decided on allocations of quota

to end-users, the sub-national bodies would issue TRQ certificates accordingly. The representative of China

also confirmed that China would administer a consistent national allocation (and reallocation) policy for TRQs,

that it would not establish a separate process of allocation to sub-national authorities and that decisions

regarding all allocations and reallocations to end-users would be made by a single, central authority. The

Working Party took note of these commitments.

120. The representative of China further confirmed that China would grant to any enterprise possessing the

right to trade any product pursuant to Section 5 of the Draft Protocol, the right to import goods in Annex 2A of

the Draft Protocol that were subject to a TRQ or to an agreed volume of imports by non-state trading

enterprises. Such right to import would not extend to the quantity of goods specifically reserved for importation

by state trading enterprises. Any enterprise possessing the right to trade pursuant to Section 5 of the Draft

Protocol would also have the right to import that portion of a TRQ reallocated to non-state trading enterprises

pursuant to the agreed rules on TRQ administration. The representative of China also confirmed that for goods

in Annex 2A of the Draft Protocol subject to a TRQ, any enterprise granted the right to trade, pursuant to

Section 5 of the Draft Protocol, would be permitted to import such goods at the out-of-quota rate. The Working

Party took note of these commitments.

China's record of compliance regarding agricultural TRQs

In the U.S. Trade Representative's China compliance reports for both 2002 and 2003,

USTR states that ever since the State Development and Planning Commission (SDPC) (renamed

the National Development and Reform Commission (NDRC) after mid-2003 government

restructuring) began administering the TRQs after China's accession, a series of problems has
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undermined market access for US exporters. USTR's reports234 identify the following problems

with China's administration of agricultural TRQs in 2002:

TRQ Problems in 2002

Delay in issuing regulations • in 2002, SDPC was late in issuing both draft and final

regulations

Flawed regulations • the regulations failed to provide the required transparency

• imposed burdensome licensing procedures

• established a separate sub-quota for the processing and reexport trade (contravening China’s accession agreement)

Delay in acting on applications • SDPC was late beginning the application process

Delay in allocation of TRQs • allocation of TRQs did not even begin until late April 2002,

approximately four months late

Discriminatory allocation of

TRQs

• available information indicated that SDPC decided to

allocate TRQs in a manner to protect domestic farm

interests and maintain the STEs' monopoly

Limited transparency • SDPC refused to provide specific details on the amounts

and the recipients of the TRQ allocations

Violation of market access and

national treatment commitments

• SDPC reserved a significant portion of the TRQs for the

processing and re-export trade

• this practice held down imports' market share in China’s

domestic market and created more competition for WTO

members’ processed goods in other export markets

• re: cotton, more than 60% of TRQs apparently reserved for

Chinese companies that process cotton for re-export

Undermine market access

commitments

Administer TRQs in manner not

predictable, uniform and fair

• SDPC allocated a portion of the TRQs for some

commodities in smaller than commercially viable quantities

• SDPC employed burdensome licensing requirements

Low TRQ fill rates • 2002 trade data showed extremely low fill-rates for TRQ

commodities of most interest to US industry:

7% (wheat); 0.1% (corn), 22% (cotton)

 

234 See USTR, 2002 Report To Congress On China’s WTO Compliance, at 32 (December 11, 2002); USTR, 2003

Report To Congress On China’s WTO Compliance, at 45 (December 11, 2003).
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In an effort to address the series of problems identified regarding China's agricultural

TRQs, the United States repeatedly engaged China bilaterally in 2002 and noted its concerns at

meetings of the WTO Committee on Agriculture, including that committee's TRM meeting in

September 2002. In July 2002, the United States formally requested consultations with China

regarding its TRQs administration. In September 2002, the US and China met in Geneva, where

the US presented its concerns and China confirmed its policy of reserving a portion of the TRQs

for the export processing and re-export trade.235

USTR reported that, in 2003, some progress was made in China's TRQ administration, to

the extent that SDPC completed required re-allocation of 2002 TRQs on time and issued 2003

TRQs "close to the prescribed time."236 However, the other problems with China's TRQ

administration persisted through 2003. In particular, USTR cited imperfect regulations, lack of

transparency, sub-division of the TRQ, small allocation sizes and burdensome licensing.237

Through 2003, the United States continued to meet bilaterally with China on TRQ issues.

USTR reported that, as a result of high-level meetings in Beijing in June 2003, China agreed to

address most US concerns. In October 2003, China issued new regulations (effective January 1,

2004) that (1) eliminate separate allocations for general trade and processing trade, (2) eliminate

certain unnecessary licensing requirements, and (3) create a new mechanism for identifying

allocation recipients.238

 

235 See USTR, 2002 Report To Congress On China’s WTO Compliance, at 32 (December 11, 2002); USTR, 2003

Report To Congress On China’s WTO Compliance, at 46 (December 11, 2003).

236 See USTR, 2002 Report To Congress On China’s WTO Compliance, at 32 (December 11, 2002); USTR, 2003

Report To Congress On China’s WTO Compliance, at 46 (December 11, 2003).

237 See USTR, 2002 Report To Congress On China’s WTO Compliance, at 32 (December 11, 2002); USTR, 2003

Report To Congress On China’s WTO Compliance, at 46 (December 11, 2003).

238 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 46 (December 11, 2003).
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(e) Tariffs

In its accession agreement, China committed to reduce its tariff rates upon accession and

on an annual basis thereafter according to the tariff bindings in China's Goods Schedule.

According to this Schedule, the "final" bound rate for some products will be reached after a

designated time period with annual reductions in the bound rate over that period. Thus, China

agreed that it would apply an MFN tariff rate on imported products that is no higher than the

bound rate for those products.

A comparison between China's WTO schedule of tariff commitments for 2003 and 2004

(i.e., bound rates in China's Goods Schedule)239 with China's actual tariff reductions as reflected

by the corresponding MFN rates published in China's Customs Tariff Schedules (Customs

Import and Export Tariff of the People's Republic of China) for 2003 and 2004 shows that, for

the most part, China timely implemented its tariff rate reduction commitments as required in its

Goods Schedule. See Appendix 8.

However, as discussed below, there appear to have been a number of discrepancies in

China's tariff reduction implementation.

• Information Technology Agreement

In 2002, a problem arose regarding tariff reductions for products covered by the

Information Technology Agreement. China had agreed to eliminate, by January 1, 2005, tariffs

on computers, semiconductors and other information technology products. However, with

respect to 15 tariff lines, China conditioned tariff reductions on submission of a Ministry of

 

239 WT/ACC/CHN/49/Add.1 (Schedule CLII - People's Republic of China, Part I - Schedule of Concessions and

Commitments on Goods).
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Information Industry (MII) end-use certificate guaranteeing that imported products would be

used as inputs in producing finished IT products in China. This condition was not authorized by

the Goods Schedule of China's accession agreement. The US objected to China's action and

conducted bilateral meetings in 2002. At the WTO, during 2002, the US blocked China’s

membership in the ITA Committee until the issue was resolved.

This issue was apparently resolved in 2003. On January 1, 2003, China transferred the

certification requirement from MII to the Customs Administration. This change established a

more workable system, and the US removed its block on China’s ITA Committee membership at

the WTO, which China joined in April 2003.

• Specific Duties and Compound Duties

Duties on imports are generally based on the value of the goods (ad valorem duties). In

most cases, China's bound rate is expressed as an ad valorem rate and China implemented its

tariff commitments through ad valorem rates. Duties may, however, be based on some other

factors such as weight or quantity (specific duties), or a combination of value and other factors

(compound duties). For certain products, China has chosen to implement its tariff reduction

commitment through specific and compound rates rather than ad valorem rates. Under WTO

dispute settlement precedent, the maintenance of tariff schedules based on something other than

the type of tariff binding (e.g., specific tariffs instead of ad valorem) is not, per se, a WTO

violation. However, it would be a violation of China's WTO tariff binding if, pursuant to

specific or compound rates, China collected duties that in fact exceeded the tariff binding.240

 

240 See, e.g., Argentina-Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, Report of the

Appellate Body, WT/DS56/AB/R, March 27, 1998.
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With respect to China's 2002 tariff reductions through specific rates, USTR noted that

"[t]ariff treatment of certain products in 2002 – including the use of specific rather than ad

valorem tariff rates for chicken parts . . . – did not appear to fully match China’s WTO

commitments."241

As reviewed below, an examination of China's specific and compound duties for 2003

indicates that application of China's specific (but not compound) duties for certain products

raises the possibility that duties collected for those products based on specific rates may exceed

China's tariff binding.

Appendix 3 to China’s Harmonized Tariff Schedules for 2003 contains a number of items

subject to Specific and Compound Tariff Rates. The Items contained in Appendix 3 and the

corresponding bound tariff rates in China's Goods Schedule are as follows:

Specific Duties

As the Table below indicates, a number of the items to which China applies specific

tariffs appear to have ad valorem equivalents that would be in excess of the bound rate contained

in China’s Goods Schedule. More information would be needed, however, to determine whether

these specific rates are possible violations of China’s obligations. As noted above, the relevant

test is whether or not the duty applied in China on imports from WTO Members is in fact higher

than the bound rate.

As a test of likely compliance, Chinese import statistics published by GTIS China World

Trade Atlas were analyzed for 2003. The following Table presents the average import price (CIF

Basis) in China for specific-duty HS categories listed for the year 2003, as well as an estimate of

 

241 USTR, 2003 National Trade Estimate Report on Foreign Trade Barriers, at 48.
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the ad valorem equivalent based on the specific tariff rate listed in Appendix 3. These figures

are then compared to the 2003 bound rate (ad valorem), with any difference noted in the far right

column. A plus sign (+) indicates that the estimated ad valorem equivalent rate for the specific

tariff, based on average 2003 prices, was higher than the bound rate. A minus sign (-) indicates

that the specific tariff, based on average 2003 prices, was lower than the bound rate. As noted

above, under WTO precedent, where tariffs imposed on imports exceed the bound rate tariff,

there is a WTO violation. Hence, it would appear that many of China's 2003 specific tariff items

present violations of China’s WTO tariff reduction commitments.
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----- MFN Rate ----- --- Chinese Import Values ---

Tariff No.

Bound Rate 

as of 01-01-

2003 RMB / unit US$s / unit Units 2002 $ / unit 2003 $ / unit

Import 

Units

Ad Valorem 

Equivalent

Ad Valorem 

Compared to 

Bound Rate

0207.12.00 20.0% 1.3 0.16 kg - 0.95 KG 16.5% -

0207.14.11 12.0% 0.8 0.10 kg 0.79 0.70 KG 13.8% +

0207.14.19 12.0% 1.2 0.14 kg 1.56 1.60 KG 9.1% -

0207.14.21 12.0% 1 0.12 kg 1.14 1.05 KG 11.5% -

0207.14.29 12.0% 0.6 0.07 kg 0.67 0.68 KG 10.7% -

0504.00.21 20.0% 1.4 0.17 kg 0.87 0.79 KG 21.4% +

2203.00.00 42.0% 1.5 0.18 litre 1.20 1.16 L 15.6% -

2709.00.00 0.0% 0 - ton 0.18 0.22 KG n.a. +

3701.30.21 10.0% 4.5 0.54 sq m 3.34 4.25 M2 12.8% +

3701.30.22 10.0% 3.9 0.47 sq m 4.21 7.08 M2 6.7% -

3701.30.29 10.0% 6.8 0.82 sq m 10.57 19.08 M2 4.3% -

3702.31.00 46.7% 92.9 11.22 sq m 2.17 2.50 N n.a. +

3702.32.20 10.0% 7 0.85 sq m 5.97 2.33 M2 36.3% +

3702.32.90 22.0% 40 4.83 sq m 12.22 19.48 M2 24.8% +

3702.39.20 10.0% 3.7 0.45 sq m 12.47 22.03 M2 2.0% -

3702.39.90 22.0% 38 4.59 sq m 11.54 14.23 M2 32.3% +

3702.41.00 17.8% 34.1 4.12 sq m 3.26 6.76 M2 60.9% +

3702.42.21 10.0% 2.1 0.25 sq m 0.87 0.73 M2 34.8% +

3702.42.29 10.0% 3.7 0.45 sq m 1.70 2.19 M2 20.4% +

3702.42.91 58.5 7.07 sq m - 1.63 M2 433.6% +

3702.42.99 58.5 7.07 sq m - 4.59 M2 154.0% +

3702.43.21 10.0% 3.7 0.45 sq m 2.71 2.50 M2 17.9% +

3702.43.29 10.0% 3.7 0.45 sq m 2.79 3.87 M2 11.6% +

3702.43.90 20.0% 39 4.71 sq m 1.82 13.78 M2 34.2% +

3702.44.21 10.0% 3.7 0.45 sq m 3.85 2.73 M2 16.4% +

3702.44.22 10.0% 2.1 0.25 sq m 1.15 1.00 M2 25.4% +

3702.44.29 10.0% 3.7 0.45 sq m 2.16 3.52 M2 12.7% +

3702.44.90 20.0% 39.4 4.76 sq m 1.46 12.49 M2 38.1% +

3702.51.00 51.3% 164.9 19.92 sq m 0.77 0.66 M n.a.

3702.52.00 51.3% 122.7 14.82 sq m 0.32 - - n.a.

3702.53.00 51.3% 164.9 19.92 sq m 1.69 1.79 M n.a.

3702.54.10 36.0% 155 18.73 sq m 0.75 0.65 M n.a.

3702.54.90 36.0% 115.7 13.98 sq m 0.66 0.61 M n.a.

3702.55.20 26.0% 13.8 1.67 sq m 0.21 0.20 M n.a.

3702.55.90 46.7% 111.7 13.49 sq m 0.55 0.44 M n.a.

3702.56.20 24.0% 13.8 1.67 sq m - 1.29 M n.a.

3702.69.00 50.0% 107.2 12.95 sq m n.a. n.a. n.a.

3702.91.00 22.0% 65 7.85 sq m 0.15 0.23 M n.a.

3702.93.10 20.0% 65 7.85 sq m 0.51 0.61 M n.a.

3702.93.90 20.0% 64.3 7.77 sq m 0.53 0.36 M n.a.

3702.94.20 22.0% 11.7 1.41 sq m 0.26 0.26 M n.a.

3702.94.90 22.0% 60 7.25 sq m 0.46 0.37 M n.a.

3702.95.20 22.0% 10.4 1.26 sq m 41.88 - - n.a.

3702.95.90 22.0% 50.5 6.10 sq m 1.72 1.25 M n.a.

Compound Duties

Generally, China's Compound duties appear to be in compliance with China’s WTO

obligations. In a few instances, however, the ad valorem equivalent tariff is quite high, over

500%. This is likely due to the fact that the average unit value of imports for that item was

significantly below the threshold price limit set in the compound tariff. Therefore, these items

have been labeled "n.m." for “not meaningful.”
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Ad Valorem

Tariff No. MFN Rate AVCT RMB / unit Units 2002 $ / unit 2003 $ / unit Import Units Equivalent

8521.10.11 P<USD2000/set SCT=0 

AVCT=33% 33.0% No. 9,166.89 11,208.27 N 33.0%

P>USD2000/set SCT=Yuan 

4980/set AVCT=3% 3.0% 4,980 9.6%

8521.10.19 P<USD2000/set SCT=0 

AVCT=33% 33.0% No. 43.48 112.77 N 33.0%

P>USD2000/set SCT=Yuan 

4980/set AVCT=3% 3.0% 4,980 n.m.

8521.10.20 P<USD2000/set SCT=0 

AVCT=33% 33.0% No. 8,992.41 12,563.40 N 33.0%

P>USD2000/set SCT=Yuan 

4980/set AVCT=3% 3.0% 4,980 9.7%

8525.30.91 P<USD5000/set SCT=0 

AVCT=35% 35.0% No. 47,739.87 32,180.17 N 35.0%

P>USD5000/set SCT=Yuan 

13280/set AVCT=3% 3.0% 13,280 6.4%

8525.30.99 P<USD5000/set SCT=0 

AVCT=35% 35.0% No. 13.61 33.78 N 35.0%

P>USD5000/set SCT=Yuan 

13280/set AVCT=3% 3.0% 13,280 n.m.

8525.40.41 P<USD5000/set SCT=0 

AVCT=15% 22.5% No. 7,952.50 7,779.43 N 22.5%

P>USD5000/set SCT=Yuan 

4980/set AVCT=3% 3.0% 4,980 10.6%

8525.40.49 P<USD5000/set SCT=0 

AVCT=15% 15.0% No. 12.84 43.49 N 15.0%

P>USD5000/set SCT=Yuan 

4980/set AVCT=3% 3.0% 4,980 n.m.

8525.40.50 P<USD5000/set SCT=0 

AVCT=20% 20.0% No. 105.96 141.27 N 20.0%

8525.40.50 P>USD5000/set SCT= Yuan 

7055/set AVCT=3% 3.0% 7,055 n.m.

(f) VAT

In the Working Party Report, some WTO Members " expressed concern that some

internal taxes applied to imports, including a value-added tax ("VAT") were not administered in

conformity with the requirements of the GATT 1994, particularly Article III,"242 which obliges

Members to provide national treatment. Those Members "noted that China appeared to permit

the application of discriminatory internal taxes and charges to imported goods and services,

including taxes and charges applied by sub-national authorities."243 In response to these

concerns, China:

confirmed that from the date of accession, China would ensure that

its laws, regulations and other measures relating to internal taxes

and charges levied on imports would be in full conformity with its

 

242 Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001) at para. 104.

243 Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001) at para. 104.
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WTO obligations and that it would implement such laws,

regulations and other measures in full conformity with those

obligations.244

In its 2003 report, USTR noted that China uses VAT policies "to encourage domestic

production in a number of industrial and agricultural sectors," particularly, semiconductors and

fertilizer.245 USTR stated that in the case of semiconductors, China provided VAT rebates to

domestic semiconductor producers and, in the case of fertilizer, China exempted domesticallyproduced fertilizer from the VAT. USTR noted that these were examples of differential tax

treatment that "raised serious WTO concerns."246 U.S. private sector groups have expressed their

views on VAT more forcefully. For example, the U.S. Council on International Business

commented regarding semiconductors:

The Chinese government imposes a 17 percent VAT on all

domestically produced and imported semiconductors sold in China,

but permits domestic semiconductor producers to obtain a rebate of

the VAT paid in excess of 3 to 6 percent, depending on the

circumstances. As a result, imported semiconductors are subject to

a much higher effective VAT rate than are domestic

semiconductors benefiting from the rebate. This discriminatory

tax treatment is a clear violation of the national treatment

obligation of Article III of the GATT 1994, and runs counter to

explicit Chinese commitments in the Protocol of Accession and the

Working Party Report on China's WTO Accession to bring its

VAT into compliance with WTO rules.247

 

244 Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001) at para. 107.

245 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 7-8 (December 11, 2003).

246 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 7-8 (December 11, 2003).

247 U.S. Council for International Business (USCIB), Written Comments re China WTO Obligations, September

10, 2003; available at http://www.uscib.org/%5Cindex.asp?documentID=2742.
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USTR stated in December 2003 that it would "continue to press China" on the VAT issue

and would "take further appropriate actions seeking elimination of China’s differential tax

treatment, including dispute resolution at the WTO, if necessary."248 Subsequently, in February

2004, USTR indicated that it was actively preparing a WTO dispute settlement case against

China's VAT policy as applied to semiconductors, but that it would give China "one last shot" to

resolve the matter.249 Testifying before the Senate Finance Committee on March 9, 2004, USTR

Zoellick stated that the United States was moving closer to challenging China over China’s

value-added tax on semiconductors:

If they don’t fix it very soon we’re going to bring a case,” Zoellick

said of China’s semiconductor VAT.250

Subsequently, press reports indicated that the United States would file a WTO dispute

settlement case. On March 17th, the Financial Times reported:

The US is set to launch its first World Trade Organisation

complaint against China, charging that Beijing is violating global

trade rules by offering big tax breaks for domestic semiconductor

producers.

The case, which US officials said could be filed as early as

Wednesday [i.e., March 17], will mark the end of a two-year

honeymoon in which Washington has tried to resolve a series of

disputes with China without resorting to the WTO.

* * *

At issue is a 17 per cent value-added tax that China imposes on all

semiconductors. The Chinese government rebates all but 3 to 6 per

cent of that tax for domestic producers but retains the full tax on

 

248 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 8 (December 11, 2003).

249 USTR Warns of China WTO Case on Semiconductor VAT if No Progress by April, INSIDE US-CHINA TRADE,

February 11, 2004.

250 Zoellick Signals Clear Opposition to WTO Case on China Currency, INSIDE US-CHINA TRADE, March 10,

2004.
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imports, giving domestic chipmakers a huge advantage in an

industry with narrow profit margins.

The Chinese tax has become the biggest international trade issue

for the $70bn (£39bn, E57bn) US semiconductor industry, which

fears the rebate is encouraging semiconductor production in China

at the expense of US imports.

The US industry had wanted a negotiated solution to the dispute,

which would have prevented a long WTO dispute settlement

process. But China has refused to relent, arguing it is a critical part

of its development strategy.251

On March 18, 2004, the United States formally filed a WTO dispute settlement case

against China "regarding its discriminatory tax rebate policy for integrated circuits."252

(g) SPS

In the Working Party Report, some Members "expressed concerns in relation to the use

by China of sanitary and phytosanitary ("SPS") procedures as non-tariff barriers."253 In

response, China said that "pursuant to the provisions of the SPS Agreement, China applied SPS

measures only to the extent necessary to protect the life and health of human beings, animals and

plants" and committed that "China would not apply SPS measures in a manner which would act

as a disguised restriction on trade" and "would ensure that SPS measures would not be

 

251 Edward Alden, US to file WTO complaint against China, FINANCIAL TIMES, March 17, 2004; available at

http://news.ft.com/servlet/ContentServer?pagename=FT.com/StoryFT/FullStory&c=StoryFT&cid=107941967

9859.

252 USTR press release 2004-22: U.S. Files WTO Case Against China Over Discriminatory Taxes That Hurt U.S.

Exports (March 18, 2004).

253 Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001) at para. 198.
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maintained without sufficient scientific evidence."254 China also confirmed that it comply with

the SPS Agreement upon accession.255

In 2002 and 2003, however, US agricultural products were subjected to various SPS

measures that were, in the US' view, questionable, raised WTO concerns, and frustrated US

export efforts. For example, in 2002 and 2003, China imposed a zero-tolerance policy on

pathogens in imports of raw poultry and meat, a standard that the US states is "not reasonably

achievable, nor scientifically justifiable."256 Moreover, China's standard for imports is contrary

to national treatment principles as it does not apparently apply domestic raw poultry and meat.257

US wheat exports also experienced SPS problems due to China's imposition of, first, a maximum

residue level (MRL) for selenium that is lower than the international standard, and second, an

MRL for vomitoxin in wheat even though there is no international standard.258 The US

repeatedly engaged China on these issues in 2002 and 2003, both bilaterally and in the WTO

TRM in the context of the WTO Committee on Sanitary and Phytosanitary Measures, but the

USTR's 2003 report states that "little progress has been achieved."259

In 2003, another SPS issue arose concerning soybeans. China announced in August 2003

that, due to detection of Phytophthora sojae in shipments from the Spring of 2003, it planned to

suspend soybean imports from four companies trading US soybeans. The US Government raised

concerns about China's announcement for several reasons: first, there appeared to be no

 

254 Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001) at para. 199.

255 Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001) at para. 200.

256 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 47 (December 11, 2003).

257 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 47 (December 11, 2003).

258 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 46 (December 11, 2003).

259 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 47 (December 11, 2003).
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legitimate purpose for China's delay in making the announcement; second, China failed to set a

date for the suspension; and, third, it appeared that China's action was intended to "disrupt the

importation of U.S. soybeans, and not to address a legitimate phytosanitary concern."260 The US

sought high-level meetings with China regarding this issue, and, in September 2003, China

agreed to future technical level meetings between US and Chinese agricultural experts. In the

interim, China agreed not to impose any suspensions.261 Subsequently, it was reported that the

US and China would again meet on this issue in March 2004.262

(h) Intellectual Property Rights

In the period before WTO accession, China made important amendments, revisions and

improvements to its framework of intellectual property rights (IPR) laws, including copyright,

trademark and patent laws, in order to bring its laws into conformity with the WTO Agreement

on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). China's efforts in

this regard were reviewed in the Report of the Working Party.263

Upon accession to the WTO, China committed to abide by the provisions of the TRIPS

Agreement, which effectively meant that China agreed to follow internationally-accepted norms

for the protection and enforcement of the intellectual property rights of foreign companies and

 

260 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 47 (December 11, 2003).

261 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 47 (December 11, 2003).

262 See U.S., China Plan March Soybean Phytophthora Meeting, INSIDE US-CHINA TRADE, January 28, 2004:

U.S. and Chinese officials are hoping to meet sometime in March to discuss China’s claims that

some U.S. exports of soybeans contain phytophthora . . . . [T]he U.S. is expected to argue that

China’s claims are unjustified and not based on sound science.

263 Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001) at paras. 251-

252.
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individuals (including those from the US) in China.264 Among other provisions, the WTO

TRIPS Agreement:

• sets minimum standards of protection for copyrights and neighboring rights, trademarks,

geographical indications, industrial designs, patents, integrated-circuit layout designs and

undisclosed information;

• sets minimum standards for the enforcement of intellectual property rights in

administrative and civil actions;

• sets minimum standards, with regard to copyright piracy and trademark counterfeiting,

for the enforcement of intellectual property rights in criminal actions and actions at the

border;

• requires that, subject to limited exceptions, WTO Members provide national and MFN

treatment to the nationals of other WTO Members with regard to protection and

enforcement of intellectual property rights.

Since accession, the general assessment is that China has largely done a satisfactory job

with respect to amending its IPR laws to comply with the TRIPS Agreement and bringing its

laws into line with international norms in most key areas. In its 2003 compliance report, USTR

states that China has continued to make improvements in its IPR legal framework. USTR notes

that, in 2003, China issued new measures concerning patents, trademarks, and copyrights which

moved China further toward full compliance with its TRIPS Agreement obligations.265

With respect to effective enforcement of intellectual property rights, however, the general

consensus is that China has failed to comply with its commitments to adhere to its TRIPS

Agreement obligations. China is required by the TRIPS Agreement to implement effective

 

264 See generally Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001) at

paras. 251-305 (regarding China's intellectual property rights commitments).

265 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 50 (December 11, 2003). The new

laws cited are (1) Amendments to the Patent Law Implementing Measures; (2) Rules on the Determination and

Protection of Well-Known Trademarks; (3) Measures on the Implementation of the Madrid Agreement on

Trademark International Registration; (4) Measures on the Registration and Administration of Collective

Trademarks and Certification Marks; (5) Measures on the Implementation of Administrative Penalties in

Copyright Cases.
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enforcement procedures and to provide civil and criminal remedies that have a deterrent effect.266

China's efforts in the area of IPR enforcement have fallen short of its commitments.

The reality is that piracy and counterfeiting remain rampant in China. The cost of

ineffective IPR enforcement has been enormous. USTR observes that:

[A]ccording to a July 2003 report by the State Council’s

Development Research Center, the market value of counterfeit

goods in China is between $19 billion and $24 billion, which

translates into enormous losses for IPR rights holders. Various

U.S. copyright holders report, for example, that inadequate

enforcement has resulted in piracy levels in China that have

remained at 90 percent or above in 2003 for all copyright sectors,

and estimated U.S. losses due to the piracy of copyrighted

materials has continued to exceed $1.8 billion annually.267

{Emphasis added}

And, as USTR notes, IPR infringement in China has affected a wide spectrum of "products,

brands and technologies from a wide range of industries, including films, music, publishing,

software, pharmaceuticals, chemicals, information technology, consumer goods, electrical

equipment, automotive parts and industrial products, among many others."268

China's IPR enforcement framework involves three avenues for action -- administrative

enforcement, criminal prosecution, and civil actions for monetary damages. To date, each of

these avenues, particularly administrative and criminal enforcement, have been ineffective and

 

266 In particular, Articles 41 (general obligations) and 61 (criminal procedures) of the TRIPS Agreement mandate

effective enforcement of IPR.

267 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 50-51 (December 11, 2003).

268 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 51 (December 11, 2003). See also

USTR, 2004 Trade Policy Agenda and 2003 Annual Report of the President of the United States on the Trade

Agreements Program (March 2004), at 164: "IPR problems are pervasive, covering the widespread production,

distribution and enduse of counterfeit and pirated products, brands and technologies. Violations include the

rampant piracy of film, music, publishing and software products, infringement of pharmaceutical, chemical,

information technology and other patents, and counterfeiting of consumer goods, electrical equipment,

automotive parts and industrial products."
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have not deterred IPR violations. Although the US has actively engaged in bilateral activities

such as seminars and other technical assistance to improve China's IPR enforcement, it is the

consensus of US industry "that credible criminal penalties and greater administrative penalties,

with strong financial support and leadership from the central government, will be essential to

reducing counterfeiting and piracy rates in China.”269

In the 2003 compliance report, USTR identifies reasons that China's IPR enforcement

efforts are ineffective. With regard to administrative enforcement, although China periodically

conducts anti-counterfeiting and anti-piracy campaigns, such campaigns fail to be effective

because:

• the cases brought usually result in extremely low fines;

• fines are kept artificially low because many administrators set low value for counterfeit

or pirated goods rather than the value of the genuine articles;

• even if a person is caught warehousing infringing goods, China does not consider this

sufficient evidence to prove an intent to sell them, which results in lower fines;

• administrators rarely forward an administrative case to the Ministry of Public Security for

criminal investigation, even for commercial-scale counterfeiting or piracy;

• IPR infringers consider seizures and fines by the Government to be simply a cost of

doing business;

• IPR infringers are usually able to resume their operations without much difficulty.270

With regard to China's criminal enforcement efforts, USTR states that it has "virtually no

deterrent effect on infringers" because:

• authorities have pursued criminal prosecutions in only a small number of cases;

• lack of transparency makes it difficult to know the outcome of cases and whether

penalties were imposed;

• criminal liability thresholds are very high and seldom met;

• to bring a criminal action, sales must total RMB 200,000 ($24,100) for enterprises and

RMB 50,000 ($6,030) for individuals;

 

269 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 51 (December 11, 2003).

270 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 52 (December 11, 2003).
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• the proof-of-sale requirement is unworkable because it does not apply to warehoused but

unsold counterfeit or pirated goods, and because infringers are unlikely to keep detailed

sales records.271

In order to address its IPR enforcement shortcomings, USTR urges China to take the

following actions:

• begin to refer administrative cases to the Supreme People’s Procuratorate for criminal

prosecution;

• revise its IPR legal framework to provide for substantially higher administrative fines;

• administrative authorities should impose and publicize fines so they will act as a

deterrent;

• revise its criminal liability thresholds;

• broaden its laws and regulations so they apply to the willful manufacture, storage,

distribution and use of counterfeit and pirated goods, and not only when a sale can be

proved;

• allow criminal prosecutions of the export of counterfeit or pirated goods on a commercial

scale;

• increase criminal penalties (as current prison terms are too low to deter infringers

engaged in commercial-scale counterfeiting or piracy).272

With respect to civil enforcement of IPR violations, USTR reports that there has been an

increase in the number of civil actions being brought for monetary damages and injunctive relief

by both Chinese parties as well as foreign parties, due in part to the ineffectiveness of the

administrative and criminal enforcement avenues.273 However, the civil enforcement route has

proven to be effective, either. In the civil courts, many judges lack necessary technical training,

cases can often take years to complete, and the results have not been consistent.

One recent and prominent example that illustrates the ineffectiveness of enforcement of

intellectual property rights through a civil action is the trademark infringement case brought by

Toyota. In that case, Toyota sued a Chinese car maker, Geely, for using a logo that Toyota

 

271 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 52-53 (December 11, 2003).

272 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 52-53 (December 11, 2003).
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claimed was confusingly similar to Toyota's logo. Toyota asked for injunctive relief, monetary

damages, and recognition of its name and logo as well-known trademarks. The court rejected

Toyota's claims:

"The logo of Geely Group's Merry (the model name of an economy

car produced by the company) is obviously different from that of

Toyota, and thus cannot cause any confusion," said the final

judgment.274

(A Chinese-language copy of the Toyota court decision is attached as Appendix 13.) The Toyota

decision has been viewed as a set back for IPR protection and enforcement in China.275

However, it is unclear what effect the Toyota decision may have on other trademark

infringement cases under consideration by other automakers.276

 273 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 53-54 (December 11, 2003).

274 Japanese carmaker loses suit, CHINA DAILY, November 25, 2003; available at

http://www1.chinadaily.com.cn/en/doc/2003-11/25/content_284444.htm. See also Toyota loses trademark suit

against China carmaker, INTERNATIONAL HERALD TRIBUNE ONLINE, November 24, 2003 ("Toyota Motor on

Monday lost a trademark lawsuit against Geely Group, China's biggest private carmaker, in a case that had

been closely watched by overseas companies concerned about protecting their designs and logos in the

mainland market."); available at http://www.iht.com/articles/118787.html.

275 See, e.g., China High Tech PR Newsletter, December 2003 ("Although a victory for Geely, the court ruling is

seen as a major setback for multinationals doing business in China and trying to protect their Intellectual

Property Rights (IPR)."), available at http://www.chinahightechpr.com/fullArticle.cfm?code=294.

276 For example, GM has alleged IPR infringement of its car models in China. See China vows to solve IPR

disputes between automaker GM, SAIC Chery, PEOPLE'S DAILY, December 4, 2003; available at

http://english.peopledaily.com.cn/200312/04/eng20031204_129676.shtml. See also Toyota loses trademark

suit against China carmaker, INTERNATIONAL HERALD TRIBUNE ONLINE, November 24, 2003 ("The court

decision came a setback for other automakers, including General Motors, which has said it is "investigating"

whether Chery Automobile's QQ minicar resembles the Chevrolet Spark."); available at

http://www.iht.com/articles/118787.html. Another report states: "Counterfeiting - usually just of parts - is

driving carmakers crazy in China." Joann Muller, Stolen Cars: The nerve! The pirates of Shanghai are

knocking off entire motor vehicles , FORBES.COM, February 16, 2004; available at http://www.forbes.com/

forbes/2004/0216/058_print.html.
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(i) Subsidies

Export subsidies

In the accession protocol and working party report, China committed that, upon

accession, it would eliminate all export subsidies on both industrial and agricultural products.277

However, despite China's WTO commitments, USTR reports that, during 2002 and 2003,

China continued to allow export subsidies for agricultural products, particularly corn and cotton.

In its 2002 report, USTR noted that US industry had expressed concern about China's continued

use of export subsidies for corn and cotton.278 In the 2003 report, USTR noted that China

appeared to continue to grant export subsidies for corn, to the detriment of US exporters.

It appears that significant quantities of corn have been exported

from China, including corn from Chinese government stocks, at

prices that may be 15 to 20 percent below domestic prices in

China. As a result, U.S. corn exporters have lost market share for

corn in their traditional Asian markets, such as South Korea and

Malaysia, while China is exporting record amounts of corn. In

2003, China’s already high level of corn exports increased by 80

percent.279

 

277 See Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001) at Item 10.3

("China shall eliminate all subsidy programmes falling within the scope of Article 3 of the SCM Agreement

upon accession.") and Item 12.1 ("China shall implement the provisions contained in China's Schedule of

Concessions and Commitments on Goods and, as specifically provided in this Protocol, those of the Agreement

on Agriculture. In this context, China shall not maintain or introduce any export subsidies on agricultural

products.").

See also Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001) at para.

167 ("The representative of China confirmed, as provided in Section 10.3 of the Draft Protocol, that it would

eliminate all export subsidies, within the meaning of Article 3.1(a) of the SCM Agreement, by the time of

accession. To this end, China would, by accession, cease to maintain all pre-existing export subsidy

programmes and, upon accession, make no further payments or disbursements, nor forego revenue or confer

any other benefit, under such programmes.").

278 See USTR, 2002 Report To Congress On China’s WTO Compliance, at 33 (December 11, 2002).

279 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 48 (December 11, 2003).
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In response to China's actions, the US raised its concerns about export subsidies with

China on a bilateral level and at the WTO as part of the 2002 and 2003 TRM reviews before the

Committee on Agriculture. However, to date, this matter has not been resolved, in part because

China has not provided information about its corn polices in response to USTR requests for such

information.280 Indeed, it is difficult to ascertain whether China has in fact eliminated any export

subsidy given that, for the last two years, China has failed to submit its required annual subsidy

notification to the WTO’s Committee on Subsidies and Countervailing Measures.281

In addition to export subsidies on agricultural products, US industry has charged that

China continues to grant export subsidies to industrial products, such as high technology

electronics, biomedicine, new materials and integrated circuits.282 USTR has noted, however,

that "China's possible export subsidies on industrial goods are difficult to identify and quantify

because they are most often the result of internal administrative measures and not publicized or

they may be provided through mechanisms such as credit allocations or low-interest loans," or

take such forms as "guaranteed provision of energy, raw materials or labor supplies."283

It appears that China also provides tax relief to foreign investors that is export contingent.

In the 2003 TRM of China conducted by the WTO’s Committee on Subsidies and Countervailing

Measures, China confirmed that it uses its tax laws to encourage the formation of wholly foreignowned enterprises that are export-oriented.284 Although this specific tax program has not been

 

280 See USTR, 2003 Report To Congress On China’s WTO Compliance, at 48 (December 11, 2003).

281 See WTO Committee on Subsidies and Countervailing Measures, Chair’s Report to the Council for Trade in

Goods on Transitional Review of China, G/SCM/111 (4 November 2003) at 3.

282 USTR, 2003 National Trade Estimate Report on Foreign Trade Barriers at 58.

283 USTR, 2003 National Trade Estimate Report on Foreign Trade Barriers at 58.

284 See WTO Committee on Subsidies and Countervailing Measures, Chair’s Report to the Council for Trade in

Goods on Transitional Review of China, G/SCM/111 (4 November 2003) at 5. Specifically, China exempts
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investigated as a possible export subsidy, such tax programs have been deemed to be export

subsidies by the Department of Commerce where they provided a benefit (deferral of direct

taxes) that was contingent upon exports.285

Domestic subsidies

In its accession agreement, in addition to committing to eliminate all subsidy programs

that would be prohibited under Article 3 of the SCM Agreement (i.e., subsidies contingent on

export performance (export subsidies) and subsidies contingent on the use of domestic over

imported goods (import substitution subsidies), China also committed to phasing out three

subsidy programs: (1) subsidies provided to certain state-owned enterprises which are running at

a loss (to be terminated by end of 2000); (2) priority in obtaining loans and foreign currencies

based on export performance (to be terminated by end of 2000); and (3) preferential tariff rates

based on localization rate of automotive production (to be terminated by end of 2000).286

It appears that China may not have eliminated the subsidies it committed to phasing out.

The National Association of Manufacturers has noted that China continues to use subsidies

widely, and often through assistance to state-owned enterprises (SOEs) running at a loss:

 wholly foreign-owned enterprises that are export-oriented from paying income tax for a certain period of time,

which is followed by an additional period during which the enterprise is entitled to a 50 percent rebate of

income tax. Enterprises located in special economic zones, or economic and technology development zones,

or any other exporting enterprises that already enjoyed an income tax rate of 15 per cent, would pay income tax

at the rate of 10 per cent if they also met certain requirements.

285 See, e.g., Oil Country Tubular Goods from Korea, 49 Fed. Reg. 46776 (Nov. 28, 1984) (“Articles 22, 23 and

24 of the "Act Concerning the Regulation of Tax Reduction and Exemption" provide for the deduction from

taxable income of a number of different reserves relating to export activities. These reserves cover export

losses, overseas market development and price fluctuation losses. Under Article 22, a corporation may

establish a reserve amounting to one percent of the foreign exchange earnings, or 50 percent of net income in

the applicable period, whichever is smaller. If certain export losses occur, they are offset from the reserve

fund. If there are no offsets for export losses, the reserve is returned to the income account and taxed, after a

one-year grace period, over a three-year period.”)

286 See Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001) at Annex 5B

(Subsidies to be Phased Out).
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Subsidized Exports -- We continue to receive reports from

different industries that Chinese products are being sold in the

United States at prices so low that they could not even cover the

cost of raw materials and shipping much less full production and

marketing costs. These reports suggest the possibility of

widespread use of subsidies, either direct or indirect, to help

Chinese exporters gain a competitive advantage in the U.S. market.

One important source of indirect subsidy is continued bank lending

to money-losing and insolvent Chinese manufacturers, often stateowned or state-controlled enterprises. Since the Chinese banks

providing these loans are either state-owned or state-controlled, the

Chinese government bears responsibility for their lending

practices.287 {Emphasis added}

When government subsidies are provided to domestic producers -- for example, steel companies

-- the likely result is expanded capacity and overproduction, which in turn leads to severe market

distortions such as price instability and dumping.288

As part of its WTO accession process, China agreed to notify all of its subsidies that are

included within the meaning of Article 1 of the WTO SCM Agreement.289 In Annex 5A to both

the Accession Protocol and the Working Party Report, China provided notification of its

subsidies pursuant to Article 25 of the SCM Agreement. Annex 5A provides information on

twenty-four subsidy programs. The first subsidy program listed in Annex 5A is "Subsidies From

Central Budget Provided To Certain State-Owned Enterprises Which Are Running At A

 

287 Testimony of Franklin J. Vargo, Vice President, International Economic Affairs, National Association of

Manufacturers, On Behalf of The National Association of Manufacturers Before the House Committee on

International Relations, Hearing On U.S.-China Ties: Reassessing the Economic Relationship, October 21,

2003.

288 China's steel industry, which is now the largest in the world, has been and continues to be the beneficiary of

government support. Continued subsidization of the Chinese steel industry has fostered massive capacity

increases in China that are not driven by rational market signals. The massive capacity expansion in China will

exacerbate the problem of global excess capacity and lead to increased exports of Chinese steel products when

demand in China diminishes. See, e.g., Comments of American Iron and Steel Institute (AISI) to U.S. Trade

Representative Concerning China's Compliance with WTO Commitments, Sept. 9, 2002; available at

www.steel.org/policy/trade/st_020909.asp.
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Loss."290 Nine sectors are identified as receiving subsidies under this program, one of which is

the "ferrous-metal industry."291 China's notification, however, only provided information on this

program up to 1998 and indicated that the program was to end in 2000.292 However, whether in

fact China has ended this or any other enumerated program is not known because China has not

yet supplemented its accession notification, and has not submitted any of the semi-annual

subsidy notifications called for in the SCM Agreement.

China's lack of transparency in reporting its subsidies, and particularly with respect to

subsidies provided to state-owned enterprises running at a loss, has been raised in the context of

the annual TRM process at the WTO. In the most recent TRM (2003), the US noted China's

failure to notify its subsidies and specifically asked China to clarify whether subsides to stateowned enterprises running at a loss had been ended. Until China clearly demonstrates that it has

phased out this, and other, subsidy programs that it agreed to end, it cannot be said that China is

in compliance with its accession commitments.

8. In the area of subsidies, the delegate of the United States

stated that the United States was disappointed with China’s failure

to submit its annual subsidy notification, required under Article

25.1 of the Subsidies Agreement. In fact, China had not made an

Article 25.1 notification since joining the WTO nearly two years

ago. The United States urged China to submit a new and full

notification of its subsidies as soon as possible and, in any event,

China should immediately notify what it could, even if such a

notification was not comprehensive. By not participating in the

notification process, China undermined the transparency that

 289 See Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001) at Item 10.1.

290 See Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001) at Annex

5A, item I.

291 See Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001) at Annex

5A, item I.

292 See Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001) at Annex 5B

(Subsidies to be Phased Out).
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Members had worked hard to develop and hampered the ability of

Members to confirm that China was complying with its obligations

under the Subsidies Agreement and its Protocol of Accession.

9. In the view of the United States, an example of the

uncertainty that China’s lack of notification fostered concerned

subsidies provided to certain state-owned enterprises which were

running at a loss. According to China’s Protocol of Accession, this

subsidy was to end in 2000. The representative of China had told

the SCM Committee the previous year that the programme had

been eliminated in 2001. However, the delegate of the United

States stated that, according to recent Chinese press reports, the

Government was currently working to eliminate this programme.

He explained that by providing more detailed information on the

programme, such as the decrees that ended or would end the

programme at the central and local levels, China would help dispel

confusion among other Members concerning the status of these

subsidies.293 {Emphasis added}

Moreover, China's recent injection of $US 85 billion into three of the largest banks in

China in order to bail them out from failing loans raises questions as to whether China has

phased out subsidies to support state-owned enterprises operating at a loss. One news reports

noted:

The Chinese government will pump around 40 billion dollars into

the Industrial and Commercial Bank of China (ICBC) in the latest

move to bail out its ailing banking sector, state media reported.

The cash injection from foreign exchange reserves is much larger

than the 22.5 billion dollars each given to the Bank of China and

China Construction Bank last week, the Business Post reported

citing various banking sources.

* * *

An official at the People's Bank of China, the central bank, was

quoted in the Chinese report as saying a total of about 120 billion

 

293 WTO Committee on Subsidies and Countervailing Measures, Chair's Report To The Council For Trade In

Goods On Transitional Review Of China, G/SCM/111 (4 November 2003) at paras. 8-9.
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dollars would be injected into the big four state-owned banks to

clean up their balance sheets and prepare them for listing.

That would leave 35 billion dollars for the Agricultural Bank of

China, widely seen as the weakest of the big four and which the

CBRC does not think will be ready for listing until 2007.

Analysts have long speculated that Beijing would be forced to

inject public funds to rescue the debt-ridden sector that for years

handed out easy loans to China's money-losing state enterprises.

It is estimated that NPLs account for about 45 percent of all loan

assets in China's banking system although official figures put the

bad debt at just under 17 percent.294

While it is the case that the United States can raise issues concerning China's subsidies

within the WTO, the US should also review its present approach to Chinese subsidies under US

countervailing duty law. For the reasons reviewed in the memorandum attached as Appendix 14,

the US Department of Commerce has the discretion to revise its handling of countervailing duty

issues for non-market economy countries such as China. Should Commerce not make such

modifications, then Congress should mandate a change through appropriate legislation.

D. U.S. Use of Transitional Rights (textile safeguards; Section 421; AD

NME status)

1. Protocol of accession provisions

The protocol on China's accession, as well as the working party report, include special

provisions unique to China's accession to the WTO that apply to the transitional period following

China's accession. First, there is available to WTO members a special safeguard provision

 

294 Channelnewsasia, China to inject 40 billion dollars into state bank: report, January 12, 2004;

http://www.channelnewsasia.com/stories/afp_asiapacific_business/view/65892/1/.html.
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applicable to textile and apparel products in order to deal with market disruption due to increased

imports of Chinese textile and apparel products. Second, WTO members may apply a productspecific transitional safeguard to deal with import surges of particular products from China that

cause market disruption.

Textile safeguards

Upon accession, China became a party to the Agreement on Textiles and Clothing

(ATC). As such, China is subject to the rights and obligations of the ATC, including quotas.

The ATC, and the textile and apparel quotas under the ATC, will expire on December 31, 2004.

However, the special textile safeguard mechanism that China agreed to as part of its accession

commitments will be applicable through the end of 2008.

The working party report to China's accession (at paragraph 242)295 sets out the terms of

the special textile safeguard. Under that provision, if a WTO Member believes (and can show)

that imports of certain Chinese textile and apparel products are “threatening to impede orderly

development of trade in these products” due to “market disruption,” the WTO Member can

request consultations with China “with a view to easing or avoiding such market disruption.”296

The scope of products for which this regime applies includes those textile and apparel products

covered by the ATC as of the date the WTO Agreement entered into force, that is, January 1,

1995. Upon receipt of a request, China has agreed to “hold its shipments ... to a level no greater

than 7.5 per cent (6 per cent for wool product categories) above the amount entered during the

first 12 months of the most recent 14 months preceding” the request.297 Consultations would be

 

295 Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001), para. 242.

296 Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001), para. 242(a).

297 Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001), para. 242(c).
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held within 30 days of the request with the aim of reaching a "mutually satisfactory solution"

within 90 days of the request.298 If no solution can be reached, consultations, and export

restraints, continue.299

There is a time limit on the application of special textile safeguards. Export restraints

may be applied from the date that consultations are requested through December 31 of that year.

If, however, three or fewer months remain in that year, then the export restraints may stay in

place for up to one year from the date of the request for consultations.300 In general, no export

restraint may last longer than one year unless it is reapplied through further consultations, or

otherwise agreed to by China and the WTO member.301 The special safeguard provision, itself,

expires on December 31, 2008.302

In addition to time limits, another limitation applies to the special textile safeguard. A

measure under the special textile safeguard provision may not be applied to the same product at

the same time as a measure under the accession protocol’s “transitional product-specific

safeguard mechanism” (Article 16 of the protocol of accession; referred to as “Section 421” in

U.S. law). However, a WTO member could apply a special textile safeguard measure and a

regular safeguard measure under GATT Article XIX and the WTO Agreement on Safeguards to

the same product at the same time.

Under the special textile safeguard provision, a WTO Member can request consultations

and secure export restraints by showing that imports from China are “threatening to impede

 

298 Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001), para. 242(b).

299 Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001), para. 242(d).

300 Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001), para. 242(e).

301 Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001), para. 242(f).
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orderly development of trade in these products” due to “market disruption.” The standard of

injury required here -- “market disruption” -- is less stringent than the “serious injury” test of a

regular safeguard action under GATT Article XIX and the WTO Agreement on Safeguards. The

consultative procedure of the special textile safeguard was established as a less formal means of

temporarily limiting the impact on WTO members of increased Chinese textile and apparel

imports. Thus, it should be easier for WTO Members to use the special textile safeguard than the

regular safeguard mechanism.

The box below shows the working party report commitments agreed to by China with

respect to textiles and apparel.

Special Textile Safeguards

Working Party Report, WT/MIN(01)/3 (10 November 2001)

11. Textiles

241. Some members of the Working Party proposed and the representative of China accepted that the

quantitative restrictions maintained by WTO Members on imports of textiles and apparel products originating in

China that were in force on the date prior to the date of China's accession should be notified to the Textiles

Monitoring Body ("TMB") as being the base levels for the purpose of application of Articles 2 and 3 of the WTO

Agreement on Textiles and Clothing ("ATC"). For such WTO Members, the phrase "day prior to the date of

entry into force of the WTO Agreement", contained in Article 2.1 of the ATC, should be deemed to refer to the

day prior to the date of China's accession. To these base levels, the increase in growth rates provided for in

Articles 2.13 and 2.14 of the ATC should be applied, as appropriate, from the date of China's accession. The

Working Party took note of these commitments.

242. The representative of China agreed that the following provisions would apply to trade in textiles and

clothing products until 31 December 2008 and be part of the terms and conditions for China's accession:

(a) In the event that a WTO Member believed that imports of Chinese origin of textiles and apparel products

covered by the ATC as of the date the WTO Agreement entered into force, were, due to market disruption,

threatening to impede the orderly development of trade in these products, such Member could request

consultations with China with a view to easing or avoiding such market disruption. The Member

requesting consultations would provide China, at the time of the request, with a detailed factual statement

of reasons and justifications for its request for consultations with current data which, in the view of the

requesting Member, showed: (1) the existence or threat of market disruption; and (2) the role of products

of Chinese origin in that disruption;

(b) Consultations would be held within 30 days of receipt of the request. Every effort would be made to reach

 302 Report of the Working Party on the Accession of China, WT/MIN(01)/3 (10 November 2001), para. 242.
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agreement on a mutually satisfactory solution within 90 days of the receipt of such request, unless extended

by mutual agreement;

(c) Upon receipt of the request for consultations, China agreed to hold its shipments to the requesting Member

of textile or textile products in the category or categories subject to these consultations to a level no greater

than 7.5 per cent (6 per cent for wool product categories) above the amount entered during the first 12

months of the most recent 14 months preceding the month in which the request for consultations was made;

(d) If no mutually satisfactory solution were reached during the 90-day consultation period, consultations

would continue and the Member requesting consultations could continue the limits under subparagraph (c)

for textiles or textile products in the category or categories subject to these consultations;

(e) The term of any restraint limit established under subparagraph (d) would be effective for the period

beginning on the date of the request for consultations and ending on 31 December of the year in which

consultations were requested, or where three or fewer months remained in the year at the time of the

request for consultations, for the period ending 12 months after the request for consultations;

(f) No action taken under this provision would remain in effect beyond one year, without reapplication, unless

otherwise agreed between the Member concerned and China; and

(g) Measures could not be applied to the same product at the same time under this provision and the provisions

of Section 16 of the Draft Protocol.

The Working Party took note of these commitments.

Product-Specific Safeguards

In addition to the textile specific export restraint mechanism, China’s accession protocol

provides for a general “product-specific special safeguard” measure, which is applicable to any

type of product (i.e., industrial and agricultural goods) and will be available to the U.S. (and

other WTO Members) for 12 years following China’s accession to the WTO, that is, until

December 11, 2013. This measure will allow the United States to take action necessary to curtail

imports of Chinese goods that cause or threaten to cause “market disruption” to the domestic

industry producing such goods.

The transitional product-specific safeguard is unique to China. Before China, no other

acceding country (either to GATT or the WTO) has been subject to a transitional productspecific safeguard. The product-specific safeguard mechanism was applied to China, however,

because the WTO members recognized that, even though China was admitted to the WTO in
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December 2001, China still remained a long way from fully meeting all obligations of WTO

membership. As a measure of protection for other WTO Members during China's transition to

full acceptance of all WTO obligations, the product-specific safeguard allows existing WTO

members to bring a China-only safeguard action where there is market disruption from increased

imports from China. This is an exception from the normal rules governing safeguard actions

(i.e., Article XIX of GATT 1994 and the WTO Agreement on Safeguards) which require that

safeguard actions be brought against imports from all countries.

A product-specific safeguard measure is not the only means to address cases where

products of Chinese origin are being imported into the territory of a WTO Member in such

increased quantities or under such conditions as to cause or threaten to cause market disruption

to the domestic producers of like or directly competitive products. The Protocol provides that

WTO Members affected by market disruption caused by increased Chinese imports may request

consultations with China with a view to seeking a mutually satisfactory solution.303 If such

consultations conclude that Chinese imports are causing market disruption and action is

necessary, China "shall take such action as to prevent or remedy the market disruption."304 If,

however, consultations do not lead to a mutually satisfactory solution within 60 days of the date

of request for consultations, then the WTO member is to take action to prevent or remedy the

market disruption through the imposition of a product-specific safeguard measure.305

The injury standard underlying a product-specific safeguard is "market disruption."

"Market disruption” exists wherever imports of an article, like or directly competitive with an

 

303 Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001) art. 16.1.

304 Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001) art. 16.2.

305 Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001) art. 16.3.
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article produced by the domestic industry, are increasing rapidly, either absolutely or relatively,

so as to be a significant cause of material injury, or threat of material injury to the domestic

industry.306. This “material injury” standard is substantially less than the “serious injury”

standard of a typical safeguard action.

In the case of critical circumstances, where delay would cause damage that would be

difficult to repair, provisional safeguard measures can be imposed (for up to 200 days) pursuant

to a preliminary determination that imports have caused or threatened to cause market

disruption.307 If a WTO Member considers that a product-specific safeguard measure taken by

another WTO Member causes or threatens to cause significant diversions of trade into its market,

that Member may seek consultations with China and/or the other WTO Member concerned.308 If

such consultations do not resolve the problem, then the WTO Member may take action to the

extent necessary to prevent or remedy the trade diversions at issue.309

Measures imposed under the product-specific safeguard mechanism may be in place for

two years where there has been a relative increase in imports, and three years where the increase

is absolute. After these respective periods, China is permitted to “retaliate” by suspending

substantially equivalent concessions or obligations under the WTO Agreement.310

The boxes below shows the protocol and working party report commitments agreed to by

China concerning the product-specific transitional safeguard.

 

306 Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001), art. 16.4.

307 Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001), art. 16.7.

308 Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001), art. 16.8.

309 Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001), art. 16.8.

310 Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001), art. 16.6.
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Transitional Product-Specific Safeguards

Protocol on Accession, WT/L/432 (23 November 2001)

16. Transitional Product-Specific Safeguard Mechanism

1. In cases where products of Chinese origin are being imported into the territory of any WTO Member in such

increased quantities or under such conditions as to cause or threaten to cause market disruption to the domestic

producers of like or directly competitive products, the WTO Member so affected may request consultations with

China with a view to seeking a mutually satisfactory solution, including whether the affected WTO Member

should pursue application of a measure under the Agreement on Safeguards. Any such request shall be notified

immediately to the Committee on Safeguards.

2. If, in the course of these bilateral consultations, it is agreed that imports of Chinese origin are such a cause

and that action is necessary, China shall take such action as to prevent or remedy the market disruption. Any such

action shall be notified immediately to the Committee on Safeguards.

3. If consultations do not lead to an agreement between China and the WTO Member concerned within 60 days

of the receipt of a request for consultations, the WTO Member affected shall be free, in respect of such products,

to withdraw concessions or otherwise to limit imports only to the extent necessary to prevent or remedy such

market disruption. Any such action shall be notified immediately to the Committee on Safeguards.

4. Market disruption shall exist whenever imports of an article, like or directly competitive with an article

produced by the domestic industry, are increasing rapidly, either absolutely or relatively, so as to be a significant

cause of material injury, or threat of material injury to the domestic industry. In determining if market disruption

exists, the affected WTO Member shall consider objective factors, including the volume of imports, the effect of

imports on prices for like or directly competitive articles, and the effect of such imports on the domestic industry

producing like or directly competitive products.

5. Prior to application of a measure pursuant to paragraph 3, the WTO Member taking such action shall provide

reasonable public notice to all interested parties and provide adequate opportunity for importers, exporters and

other interested parties to submit their views and evidence on the appropriateness of the proposed measure and

whether it would be in the public interest. The WTO Member shall provide written notice of the decision to apply

a measure, including the reasons for such measure and its scope and duration.

6. A WTO Member shall apply a measure pursuant to this Section only for such period of time as may be

necessary to prevent or remedy the market disruption. If a measure is taken as a result of a relative increase in the

level of imports, China has the right to suspend the application of substantially equivalent concessions or

obligations under the GATT 1994 to the trade of the WTO Member applying the measure, if such measure

remains in effect more than two years. However, if a measure is taken as a result of an absolute increase in

imports, China has a right to suspend the application of substantially equivalent concessions or obligations under

the GATT 1994 to the trade of the WTO Member applying the measure, if such measure remains in effect more

than three years. Any such action by China shall be notified immediately to the Committee on Safeguards.

7. In critical circumstances, where delay would cause damage which it would be difficult to repair, the WTO

Member so affected may take a provisional safeguard measure pursuant to a preliminary determination that

imports have caused or threatened to cause market disruption. In this case, notification of the measures taken to

the Committee on Safeguards and a request for bilateral consultations shall be effected immediately thereafter.

The duration of the provisional measure shall not exceed 200 days during which the pertinent requirements of

paragraphs 1, 2 and 5 shall be met. The duration of any provisional measure shall be counted toward the period

provided for under paragraph 6.

8. If a WTO Member considers that an action taken under paragraphs 2, 3 or 7 causes or threatens to cause
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significant diversions of trade into its market, it may request consultations with China and/or the WTO Member

concerned. Such consultations shall be held within 30 days after the request is notified to the Committee on

Safeguards. If such consultations fail to lead to an agreement between China and the WTO Member or Members

concerned within 60 days after the notification, the requesting WTO Member shall be free, in respect of such

product, to withdraw concessions accorded to or otherwise limit imports from China, to the extent necessary to

prevent or remedy such diversions. Such action shall be notified immediately to the Committee on Safeguards.

9. Application of this Section shall be terminated 12 years after the date of accession.

Working Party Report, WT/MIN(01)/3 (10 November 2001)

13. Transitional Safeguards

245. With respect to implementation of the product-specific safeguard, the representative of China expressed

particular concern that WTO Members provide due process and use objective criteria in determining the existence

of market disruption or trade diversion, because WTO Members did not have wide experience in implementing

the provisions of Section 16 of the Draft Protocol. He stated that with respect to trade diversion, WTO Members

needed to apply objective criteria to determine whether an action by China or another WTO Member under the

product-specific safeguard to prevent or remedy market disruption caused or threatened to cause significant

diversion of trade. Such criteria should include the actual or imminent increase in market share or volume of

imports from China, the nature or extent of the action taken by China or the other WTO Member and other

similar criteria. In addition, WTO Members should provide an opportunity for importers, exporters and all

interested parties to submit their views on the matter.

246. Members of the Working Party noted that the Draft Protocol included specific requirements that WTO

Members needed to follow in connection with an action under that Section. Members of the Working Party

confirmed that in implementing the provisions on market disruption, WTO Members would comply with those

provisions and the following:

(a) An action to address market disruption would be taken only after an investigation by the competent

authorities of the importing WTO Member pursuant to procedures previously established and made

available to the public;

(b) The competent authority of the importing Member would publish notice of the commencement of any

investigation under the product-specific safeguard provisions of the Draft Protocol and would, within a

reasonable time thereafter, hold a public hearing or provide other appropriate means for the purpose of

permitting interested parties to present evidence and their views as to the appropriateness of whether or not

to take a measure and to respond to the presentations of other parties;

(c) In determining whether market disruption existed, including the causal link between imports which were

increasing rapidly, either absolutely or relatively, and any material injury or threat of material injury to the

domestic industry, the competent authorities would consider objective factors, including (1) the volume of

imports of the product which was the subject of the investigation; (2) the effect of imports of such product

on prices in the importing WTO Member's market for the like or directly competitive products; (3) the

effect of imports of such product on the domestic industry producing like or directly competitive products;

(d) The competent authorities would publish any measure proposed to be taken and provide the opportunity,

including a public hearing, if requested, or provide other appropriate means, for importers, exporters and

other interested parties to submit their views and evidence on the appropriateness of the proposed measure

and whether it would be in the public interest;
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(e) The competent authority would promptly publish notice of the decision to apply a measure, including an

explanation of the basis for the decision and the scope and duration of the measure;

(f) The period of application of the measure could be extended, provided that the competent authorities of the

importing WTO Member had determined that action continued to be necessary to prevent or remedy

market disruption. The competent authorities of the importing WTO Member would publish notice of the

commencement of any proceeding to consider whether to extend the duration of an action and would,

within a reasonable time thereafter, hold a public hearing or provide other appropriate means for the

purpose of permitting all interested parties to have an opportunity to present evidence or their views and to

respond to the presentations of other parties;

(g) Except for good cause, no investigation under Section 16 of the Protocol on the same subject matter could

be initiated less than one year after the completion of a previous investigation; and

(h) A WTO Member would apply a measure only for such period of time as was necessary to prevent or

remedy market disruption.

247. Trade diversion referred to an increase in imports from China of a product into a WTO Member as the result

of an action by China or other WTO Members pursuant to paragraphs 2, 3 or 7 of Section 16 of the Draft

Protocol. Members of the Working Party also noted that the Draft Protocol required a determination that any

trade diversion was significant and that the action taken to address market disruption had caused or threatened to

cause the diversion.

248. Members of the Working Party agreed that objective criteria had to be applied in determining whether

actions to prevent or remedy market disruption caused or threatened to cause significant diversion of trade.

Among the factors to be examined were:

(a) the actual or imminent increase in market share of imports from China in the importing WTO Member;

(b) the nature or extent of the action taken or proposed by China or other WTO Members;

(c) the actual or imminent increase in the volume of imports from China due to the action taken or proposed;

(d) conditions of demand and supply in the importing WTO Member's market for the products at issue; and

(e) the extent of exports from China to the WTO Member(s) applying a measure pursuant to paragraphs 2, 3 or

7 of Section 16 of the Draft Protocol and to the importing WTO Member.

249. A measure taken to address significant diversions of trade would be terminated not later than 30 days after

the expiration of the action taken by the WTO Member or Members involved against imports from China.

250. If the WTO Member or Members taking an action to address market disruption notified the WTO

Committee on Safeguards of any modification of an action, the competent authorities of the WTO Member

addressing trade diversion would determine whether a significant diversion of trade continued to exist and

determine whether to modify, withdraw or keep in place the action taken.
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2. U.S. implementing provisions or existing laws

Special Textile Safeguards

The special China safeguard for textiles took effect in December 2001 upon China’s

accession to the WTO. On May 21, 2003, the Committee to Implement Textile Agreements

(“CITA”), the official U.S. government entity responsible for administering the Agreement on

Textiles and Clothing (“ATC”), promulgated the procedures for bringing a special safeguard

action to seek relief from Chinese imports.311

The Committee for the Implementation of Textile Agreements (CITA) is an interagency

group responsible for matters affecting textile trade policy and for supervising the

implementation of all textile trade agreements.312 CITA administers the phase-out of textile and

apparel quotas on WTO countries required to be completed by January 1, 2005 under the ATC.

CITA was established by the President in Executive Order 11651 on March 3, 1972 and is

comprised of the Departments of Commerce, State, Labor, and Treasury and the Office of the

U.S. Trade Representative.313 CITA is chaired by the Commerce Department's Deputy Assistant

Secretary for Textiles, Apparel, and Consumer Goods Industries.

 

311 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. 27787 (CITA, May 21, 2003).

312 See http://otexa.ita.doc.gov/cita.htm.

313 CITA also coordinates the administration's efforts to combat illegal textile and apparel transshipment; it

implements the short supply and other provisions of the African Growth and Opportunity Act and the United

States Caribbean Basin Trade Partnership Act; and it takes textile and apparel safeguard actions, when

appropriate, under the WTO Agreement on Textiles and Clothing (ATC) and the North American Free Trade

Agreement. The Commerce Department's Office of Textiles and Apparel (OTEXA) provides the staff support

for the Committee, monitors all agreements and provides economic analysis and statistical data upon which the

Committee relies in taking action.
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Implementation of the special textile safeguard in U.S. law through issuance of

regulations did not occur until nearly 17 months after China's accession. This delay was costly

to U.S. interests. According to the American Textile Manufacturers Institute, in the period

before CITA issued its regulations, imports of Chinese textile and apparel products increased

more than 165%, 50 U.S. textile plants closed, and some 39,000 textile workers lost their jobs.314

Under the procedures issued by CITA, a domestic interested party may file a request for a

textile/apparel safeguard. Eligible requesters are those entities (including a trade association,

firm, certified or recognized union, or group of workers) that are representative of (1) a domestic

producer or producers of a product that is like or directly competitive with the subject Chinese

textile or apparel product, or (2) a domestic producer or producers of a component used in the

production of a product that is like or directly competitive with the subject Chinese textile or

apparel product.315 In addition, CITA may, on its own initiative, consider whether increased

imports of Chinese-origin textile and apparel products are causing market disruption and

threatening to impede orderly development of trade in such products.316

CITA will consider requests only if they contain certain specified information. The

required information concerns the following:

(1) Product description of the product, including the applicable category under the

U.S. Textile and Apparel Category System, the applicable subheading under the

 

314 See ATMI News Release, ATMI Says U.S. Must Use the Safeguard or Risk Unprecedented Upheaval, (May 21,

2003).

315 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. at 27788.

316 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. at 27789.
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U.S. Harmonized Tariff Schedule, and the name and description of the like or

directly competitive domestic product.317

(2) Import data, in quantity by category unit, on total imports into the United States

and imports from China into the United States. Both annual (most recent five

calendar years) and quarterly (current and previous year) data are required, and

the data should show imports from China increasing rapidly in absolute terms.318

(3) Production data, in quantity by category unit, on U.S. domestic production of the

like or directly competitive products of U.S. origin indicating the nature and

extent of market disruption. Both annual (most recent five calendar years) and

quarterly (current and previous year) data are required.319

(4) Market share data, in quantity by category unit, on imports from China as a

percentage of the domestic market, on total imports as a percentage of the

domestic market, and on domestic production of like or directly competitive

products as a percentage of the domestic market. Both annual (most recent five

calendar years) and quarterly (current and previous year) data are required.320

(5) Additional information as to how the textile and apparel product(s) have

adversely affected the domestic industry, such as the effect of imports on prices in

the United States.321

Once a request is filed, CITA has up to 15 business days to decide whether the petition

provides all the required information.322 If CITA accepts the request, CITA issues a notice in the

Federal Register soliciting public comments on the request and establishing a 30-day public

 

317 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. at 27788.

318 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. at 27788.

319 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. at 27788.

320 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. at 27789.

321 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. at 27789.

322 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. at 27789.
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comment period.323 Once the comment period ends, CITA may take up to 60 days to decide

whether to request consultations with China concerning the product that is the subject of the

petition. If CITA is unable to decide whether to request consultations with China within the 60-

day period, CITA publishes a notice in the Federal Register indicating the date by which it will

decide whether to request consultations.324

If CITA determines not to request consultations, it will publish a notice of its

determination and the reasons therefore in the Federal Register.

325 If CITA makes an

affirmative determination that imports of Chinese-origin textiles and apparel products are

causing market disruption, CITA will request consultations with China with a view to easing or

avoiding such market disruption.326 Within 30 days of the receipt of the request for

consultations, CITA will hold consultations with China; and within 90 days of the receipt of the

consultation request, CITA will attempt to reach agreement on a mutually satisfactory

solution.327

Once China receives the requests for consultations, CITA will publish a notice in the

Federal Register that such consultations have been requested, and will identify the quantitative

 

323 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. at 27789.

324 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. at 27789.

325 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. at 27789.

326 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. at 27789.

327 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. at 27789.
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limits on imports that are subject to the request for consultations.328 Absent a mutually

satisfactory solution, the quantitative limits identified by CITA will terminate on December 31 of

the year in which the request for consultations was made, unless three or fewer months remain in

that year at the time of the request, in which case the limits will terminate one year from the date

on which consultations were requested.329

Product-Specific Safeguard: Statute

Section 421 of the Trade Act of 1974, as amended, 19 U.S.C. § 2451, establishes a

product-specific safeguard mechanism designed to address product-specific import surges from

China that occur for any reason. This statutory provision implemented the agreement reached

between the United States and China in the US-China Bilateral Trade Agreement by which

China agreed to allow the United States to employ a temporary safeguard mechanism directed

solely at products from China. This provision was incorporated into the Protocol of the

Accession of China to the World Trade Organization, thereby allowing all WTO Members to

employ the same product-specific safeguard mechanism to address import surges of products

from China into their countries.330

The United States and China concluded their Bilateral Trade Agreement on November

15, 1999. In 2000, Congress enacted Public Law 106-286331 which authorized the extension of

nondiscriminatory treatment (normal trade relations treatment) to the People's Republic of China.

 

328 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. at 27789.

329 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. at 27789.

330 See Protocol on the Accession of the People's Republic of China, WT/L/432 (23 November 2001) at Article 16

("Transitional Product-Specific Safeguard Mechanism").

331 Pub. L. 106-286, October 10, 2000, 114 STAT. 880.
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Section 103 of P.L. 106-286 created a new chapter and a new section 421 of title IV of the Trade

Act of 1974 to implement the anti-surge mechanism established under the U .S.-China Bilateral

Trade Agreement. This special safeguard mechanism is codified at 19 U.S.C. § 2451. Congress

intended that this provision would replace section 406 of the Trade Act of 1974 (applicable to

market disruption by imports from communist countries), which, since China joined the WTO on

December 11, 2001, does not apply to China. In February 2002, the U.S. International Trade

Commission published interim rules implementing the new statutory authority.332 Subsequently,

on November 19, 2003, the ITC published amendments to its interim rules.333

Section 421 permits U.S. domestic industries and workers adversely affected by

increased imports from China to seek relief. The procedure for initiating an action under Section

421 is similar to a traditional safeguard under Section 201 of the Trade Act of 1974. A petition

for an investigation under section 421 must be filed by an entity (including a trade association,

firm, certified or recognized union, or group of workers) that is representative of an industry

claiming injury due to import surges from China.334 In addition to an interested party petition,

the U.S. International Trade Commission may commence an investigation upon a request by the

 

332 See Investigations Relating to Global and Bilateral Safeguard Actions, Market Disruption, Trade Diversion,

and Review of Relief Actions, 67 Fed. Reg. 8183-93 (interim rules with request for comments) (ITC February

22, 2002). The Commission noted that it was necessary to amend its rules in order to "implement provisions of

Public Law 106-286 that require the Commission to conduct new types of investigations of market disruption

or trade diversion and reviews of relief actions." Id. at 8183.

333 See Investigations Relating to Global and Bilateral Safeguard Actions, Market Disruption, Trade Diversion,

and Review of Relief Actions, 68 Fed. Reg. 65164-68 (interim rules with request for comments) (ITC

November 19, 2003). The Commission noted that amendments were necessary "to respond to exigencies

created by statutory time constraints and to address concerns created by the existing rules." Id. at 65164.

334 Section 421(b)(1); 19 U.S.C. § 2451(b)(1).
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President or the U.S. Trade Representative, a resolution of either the House Ways and Means or

Senate Finance Committees, or upon its own initiative.335

The timeline for a Section 421 action is 150 days from commencement of the

investigation to proclamation of relief, the same time period for a Section 406 investigation, but

much shorter than for a normal Section 201 safeguards action. A Section 421 investigation is

commenced as of the day the petition is filed or the request received. Within 60 days thereafter

(90 days if critical circumstances are alleged), the ITC must determine whether the subject

imports are causing or threatening market disruption.336 If critical circumstances are alleged, the

ITC makes a preliminary determination within 45 days of the investigation's commencement

whether market disruption exists and whether delay in taking action would cause damage which

would be difficult to repair.337 If the Commission's preliminary determination is affirmative,

within 20 days thereafter, the President shall determine whether to provide provisional relief,

which shall be for a period not to exceed 200 days and be in the form of increased duties, a

modification or imposition of any quantitative restriction on imports, or a combination thereof.338

The injury standard applicable to Section 421 investigations is "market disruption."

According to the statute, market disruption exists when subject imports “are increasing rapidly,

either absolutely or relatively, so as to be a significant cause of material injury or threat of

material injury to the domestic industry.”339 In determining whether market disruption exists, the

statute directs the Commission to consider objective factors, including: (1) the volume of imports

 

335 Section 421(b)(1); 19 U.S.C. § 2451(b)(1).

336 Section 421(e); 19 U.S.C. § 2451(e).

337 Section 421(i)(1); 19 U.S.C. § 2451(i)(1).

338 Section 421(i); 19 U.S.C. § 2451(i).
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of the product subject to the investigation; (2) the effect of imports of such product on prices in

the United States of like or directly competitive articles, and (3) the effect of imports of such

product on the domestic industry producing like or directly competitive articles. The presence or

absence of any of these factors, however, is not necessarily dispositive of whether market

disruption exists.340

Within 20 days after determining whether the subject imports are causing or threatening

market disruption, the ITC must submit a report to the President and the U.S. Trade

Representative.341 The Commission's report includes the determination, an explanation of the

basis for the determination, and, if affirmative, recommendations on proposed remedies, an

explanation of the basis for each recommendation, and a description of the short and long-term

effects of implementing or not implementing the recommended remedial actions on the

petitioning industry, other domestic industries, and on consumers.342 Within 20 days after

receiving the Commission's report, the U.S. Trade Representative must publish a notice of the

remedy proposed to be taken and of the opportunity, including a public hearing if requested, for

comment by interested parties.343 Within 55 days of receiving the Commission's report, the U.S.

Trade Representative must make its recommendation to the President concerning what action, if

any, to take to prevent or remedy market disruption.344

 339 Section 421(c)(1); 19 U.S.C. § 2451(c)(1).

340 Section 421(d); 19 U.S.C. § 2451(d).

341 Section 421(g)(1); 19 U.S.C. § 2451(g)(1).

342 Section 421(g)(2); 19 U.S.C. § 2451(g)(2).

343 Section 421(h)(1); 19 U.S.C. § 2451(h)(1).

344 Section 421(h)(2); 19 U.S.C. § 2451(h)(2).
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The President is required by the statute to “provide import relief” within 15 days of

receiving the U.S. Trade Representative's report.345 Import relief shall be in the form of

"increased duties or other import restrictions."346 Thus, if the Commission makes an affirmative

determination on market disruption, there is a statutory presumption in favor of providing

relief.347 This presumption can be negated only if the President determines that provision of

relief is not in the “national economic interest of the United States,” or in “extraordinary cases”

that relief would cause serious harm to U.S. national security.348 The President may find that

relief action is not in the national economic interest of the United States "only if the President

finds that the taking of such action would have an adverse impact on the U.S. economy clearly

greater than the benefits of such action."349 Thus, the President has limited discretion (subject to

the limitations noted above) as to the remedy to be applied. As in a Section 201 case, given the

President's discretion, the remedial measures ultimately applied in a Section 421 case may be

subject to influence from Congress and other constituencies.

The statute also provides for a consultation track to prevent or remedy market disruption.

If the Commission's determination respecting market disruption is affirmative, the statute

provides that the U.S. Trade Representative should seek consultations with China with the aim of

 

345 Section 421(k)(1); 19 U.S.C. § 2451(k)(1).

346 Section 421(a); 19 U.S.C. § 2451(a).

347 See House Report No. 106-632, 106th Cong., 2d Sess. 18 (May 24, 2000) (emphasis added):

The bill establishes clear standards for the application of Presidential discretion in providing relief

to injured industries and workers. If the ITC makes an affirmative determination on market

disruption, there would be a presumption in favor of providing relief. That presumption can be

overcome only if the President finds that providing relief would have an adverse impact on the

United States economy clearly greater than the benefits of such action, or, in extraordinary cases,

that such action would cause serious harm to the national security of the United States.

348 Section 421(k); 19 U.S.C. § 2451(k).

349 Section 421(k)(2); 19 U.S.C. § 2451(k)(2).
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concluding an agreement for China to take such action as necessary to prevent or remedy market

disruption.350 The statute directs the U.S. Trade Representative to attempt to conclude such

agreements within the 60-day consultation period provided for under the Protocol of Accession.

This 60-day period begins not later than 5 days after the Commission makes an affirmative

determination of market disruption.351 If the United States and China are unable to reach

agreement within the 60 day consultation period, the President is directed to provide import

relief.352 Any relief proclaimed by the President becomes effective 15 days thereafter.353

If necessary to continue to prevent or remedy market disruption, Section 421 permits the

President to modify, reduce or terminate relief. In addition, the statute provides that, upon a

request from the President or a petition on behalf of the domestic industry, the Commission shall

investigate whether the safeguard action continues to be necessary to prevent or remedy market

disruption.354 If the Commission's determination is affirmative, the President may extend the

effective period of the relief action.355 356

 

350 Section 421(j)(1); 19 U.S.C. § 2451(j)(1).

351 Section 421(j)(1); 19 U.S.C. § 2451(j)(1).

352 Section 421(j)(2); 19 U.S.C. § 2451(j)(2).

353 Section 421(m); 19 U.S.C. § 2451(m).

354 Section 421(o)(1); 19 U.S.C. § 2451(o)(1).

355 Section 421(o)(4); 19 U.S.C. § 2451(o)(4).

356 The statute also addresses trade diversion, which occurs when a third country safeguard measure applied by a

WTO Member to Chinese goods causes or threatens to cause significant diversions of trade into the United

States. Section 422(b)(1) of the Trade Act of 1974; 19 U.S.C. § 2451a(b)(1). If the ITC determines that a third

country safeguard measure on Chinese goods causes or threatens to cause significant diversions of trade into

the United States, the U.S. Trade Representative must request consultations with China and/or the third country

Member imposing the measure. Section 422(e)(2); 19 U.S.C. § 2451a(e)(2). Should consultations fail to

resolve the issue within 60 days, the President must determine, within 40 days after consultations end, what

action to take to prevent or remedy the trade diversion or threat thereof. Section 422(g) & (h); 19 U.S.C. §

2451a(g) & (h). As with a Section 421 investigation, the timeline for a Section 422 trade diversion

investigation is 150 days from petition to relief.
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Product-Specific Safeguard: Legislative History

Having reviewed the substantive provisions of Section 421, it is illuminating to review

the purpose of Section 421 as illustrated by the legislative history to the provision, as well as the

underlying concerns of the United States and other countries with increasing imports from China

that were the raison d'être of the product-specific safeguard.

In explaining Section 421, the report of the House Ways and Means Committee stated:

Section 3 created a new chapter of Title IV which

implements the anti-surge mechanism established under the U.S.-

China Bilateral Trade Agreement. This is intended to replace

section 406 of the Trade Act of 1974, which would no longer apply

to China as the result of section 1 of this Act.

The safeguard would permit the United States to provide

relief to domestic industries and workers where products of

Chinese origin are being imported in such increased quantities and

under such conditions as to cause or threaten to cause market

disruption to the domestic producers as a whole of like or directly

competitive products.357

* * *

This is a temporary, extraordinary trade remedy specifically

designed to address concerns about potential increased import

competition from China in the future.358

As the House report noted, the import surge provision is temporary -- it will be in effect

for 12 years -- and it is an "extraordinary" trade remedy. The primary definition of

"extraordinary" according to the New Shorter Oxford English Dictionary is "Out of the usual or

regular course or order; special."359 Section 421 fits squarely within this definition. That is,

Section 421 is "extraordinary" in the sense that it is a "special" mechanism and "outside the usual

 

357 H.R. Rep. No. 632, 106th Cong., 2nd Sess. 16 (May 22, 2000).

358 Id. at 19.

359 The New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993, Vol. 1 at 897.
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course" of a safeguard mechanism pursuant to Section 201, but not in the sense that a Section

421 action is intended to be "rare." Section 421 is special and outside the usual course because:

• it is a time-limited mechanism that will operate during a 12-year transition period as

China accommodates its economic and trade regime to WTO requirements;

• it is directed at products from one country, China, in contrast to the global reach of a

safeguard under Section 201; and

• the legal standard applied in an Section 421 import surge action is lower than that

applied in a Section 201 action. Section 421 addresses imports causing "market

disruption," a condition that exists where increased imports from China are a

"significant cause of material injury." In contrast, in a Section 201 action, the legal

threshold requires evidence that increased imports, from all sources, are a

"substantial cause of serious injury."360

That Section 421 actions were intended to be applied vigorously is evident from

consistent statements made by Clinton Administration officials who negotiated the US-China

Bilateral Trade Agreement. For example, the White House's summary of the product-specific

safeguard indicates that the provision was a "special" mechanism intended to supply "strong

protection" against increased imports and that, because of lower injury standards, would likely

result in more safeguard actions involving products from China, not fewer.

PRODUCT-SPECIFIC SAFEGUARD

The agreed provisions for the protocol package also ensure that

American domestic firms and workers will have strong protection

against rapid increases of imports.

To do this, the Product-Specific Safeguard provision sets up a

special mechanism to address increased imports that cause or

threaten to cause market disruption to a U.S. industry. This

mechanism, which is in addition to other WTO Safeguards

provisions, differs from traditional safeguard measures. It permits

United States to address imports solely from China, rather than

from the whole world, that are a significant cause of material

injury through measures such as import restrictions. Moreover, the

 

360 19 U.S.C. § 2251.
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United States will be able to apply restraints unilaterally based on

legal standards that differ from those in the WTO Safeguards

Agreement. This could permit action in more cases. The ProductSpecific Safeguard will remain in force for 12 years after China

accedes to the WTO.361

Ambassador Barshefsky emphasized to Congress that the import surge mechanism was

special in that it was directed solely at Chinese imports, that it had a lower legal threshold

compared to section 201, and that a product-specific safeguard remedy could be imposed if, for

any reason, increased imports from China caused market disruption.

If, for any reason, Chinese imports into the U.S. surge, as for

example, they did on steel last year as you well know, we will be

able to take action and on a temporary basis, somewhere between

two or three years, block or otherwise reduce the volume of those

imports.362

______________

Import Surge Protection -- China agrees to a twelve-year productspecific safeguard provision, which ensures that the U.S. can take

effective action in case of increased imports from China which

cause market disruption in the United States. This applies to all

industries, permits us to act based on the lowest showing of injury,

and act specifically against imports from China.363

______________

MR. LEVIN. . . . I think one factor is if we see that there is

a major surge in a particular product, the way I think the accession

provision is written, that we do have some defense. . . . And the

 

361 The White House, China Trade Relations Working Group, Summary of U.S.-China Bilateral WTO Agreement,

Feb. 2, 2000 (emphasis added) (available at http://usinfo.state.gov/regional/ea/uschina/bilatsum.htm).

362 U.S.-China Bilateral Trade Agreement and the Accession of China to the World Trade Organization: Hearing

Before the Committee on Ways and Means, House of Representatives, 106th Cong., 2nd Sess. 63 (Feb. 16, 2000)

(testimony of Charlene Barshefsky, US. Trade Representative), available at http://frwebgate.access.gpo.gov/

cgi-bin/getdoc.cgi?dbname=106_house_hearings&docid=f:67129.pdf.

363 U.S.-China Bilateral Trade Agreement and the Accession of China to the World Trade Organization: Hearing

Before the Committee on Ways and Means, House of Representatives, 106th Cong., 2nd Sess. 48 (Feb. 16, 2000)

(statement of Charlene Barshefsky, US. Trade Representative), available at http://frwebgate.access.gpo.gov/

cgi-bin/getdoc.cgi?dbname=106_house_hearings&docid=f:67129.pdf.
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reason we have anti-surge provisions is because trade flows both

ways. Otherwise we wouldn’t need them. * * *

AMBASSADOR BARSHEFSKY. Yes. If I might say with

respect to surge, this is an area where again we are trying to look

ahead. We wanted to be sure we had strong anti-import surge

mechanisms for many of the reasons that Congressman Rangel has

pointed out. That is to say China will become a much more

forceful competitor in the future. We are already seeing that in

steel last year, as you may know. And we want to be sure that we

can take action—and under this provision we will be able to for 12

years after accession —to take action against import surges to the

extent they are causing market disruption in the United States.

MR. LEVIN. Treating them, in other words, with a different

standard than presently applies to—

AMBASSADOR BARSHEFSKY. This is a much different

standard than under 201 now. One, because we can take action

just against China. Two, because a market disruption standard is a

very low legal threshold as you know. . . .364

______________

MRS. JOHNSON. . . . I’d like you to describe, Ambassador

Barshefsky, more specifically the benefits of the surge protection

that you’ve negotiated. It is my understanding that NAFTA

doesn’t have this surge protection, that the old GATT agreements,

the WTO, that we have never had the ability that this agreement is

going to give us to just manage big changes in imports. * * *

AMBASSADOR BARSHEFSKY. You’re quite right in pointing

out that such a provision doesn’t exist in any other agreement with

respect to any other country. Nor does it exist in U.S. trade law.

This is a provision designed to ensure that if imports from

China surge into the U.S. and cause market disruption in the U.S.,

we can for a period between two and three years, depending on the

type of action, move to curb or restrict imports in that product

sector.

 

364 U.S.-China Bilateral Trade Agreement and the Accession of China to the World Trade Organization: Hearing

Before the Committee on Ways and Means, House of Representatives, 106th Cong., 2nd Sess. 67-68 (Feb. 16,

2000) (testimony of Charlene Barshefsky, US. Trade Representative) (emphasis added), available at

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=106_house_hearings&docid=f:67129.pdf.
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MRS. JOHNSON. Now, this is similar to the way the

voluntary restraint agreements worked—

AMBASSADOR BARSHEFSKY. It is, indeed.

MRS. JOHNSON. —in the 1980s, to allow the machine tool

industry to get back on its feet.

AMBASSADOR BARSHEFSKY. Correct. It is quite similar in

intent. It will be somewhat different procedurally in

implementation. But it is quite similar in intent and in design.

MRS. JOHNSON. I would also like to point out that had we

had this protection, the American bearing industry would be much

stronger today than it is, because it would have had a more

sensitive tool—

AMBASSADOR BARSHEFSKY. That’s exactly right.

MRS. JOHNSON. —as opposed to the anti-dumping laws, to

deal with the import of bearings from China.

AMBASSADOR BARSHEFSKY. And had this been in effect

during the recent steel upsurge in the fourth quarter of 1997 and

during 1998, including from China, our steel industry would have

been much better positioned.365

Other Administration officials made similar statements to Congress about the purpose of

the special import surge mechanism and that the provision, as a new additional protection against

import surges from China, would likely result in more, not fewer, cases.366

 

365 Accession of China to the WTO: Hearing Before the Committee on Ways and Means, House of

Representatives, 106th Cong., 2nd Sess. 61 (May 3, 2000) (testimony of Charlene Barshefsky, US. Trade

Representative), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=106_house_hearings

&docid=f:67832.pdf.

366 See Accession of China to the WTO: Hearing Before the Committee on Ways and Means, House of

Representatives, 106th Cong., 2nd Sess. (May 3, 2000) (available at http://frwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=106_house_hearings&docid=f:67832.pdf):

• At 26, Statement of Lawrence H. Summers, Secretary, U.S. Dept. of Treasury: "we will benefit from

unprecedented special safeguards . . . to defend American workers and farmers from import surges . . . . A

‘‘China-specific’’ safeguard . . . provides stronger and more targeted relief than our current Section 201

law."
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The foregoing points were further emphasized in the course of congressional debate over

H.R. 4444, which granted China permanent normal trade relations.

MR. LEVIN. . . . I want to focus right now on the

challenges, because there are challenges as well as opportunities. . .

. The second {challenge} relates to the potential surges in products

from China. It is going to compete with us. That is what trade is.

It is competition. And there could be harmful surges from China

into the U.S. that would hurt our workers and hurt our producers.

I will not go into detail now, but I can say, as someone who

has worked on these issues now for 15 years and fought to keep the

antidumping provisions in U.S. law in the Uruguay Round, and

successfully. . . this provision, this specific provision as to surges

from China and handling them, is the strongest anti-surge

provision that will be in U.S. law.367

______________

MR. BENTSEN: This agreement also includes significant

safeguards against unfair Chinese imports and failure by the

Chinese to move toward market liberalization. Chinese imports

will be subject to . . . tariffs for 12 years after entry into the WTO

against import surges that threaten to disrupt United States

markets. . . . In some cases, this language is tougher than current

law. And I want to commend our colleagues, Mr. LEVIN and MR.

BEREUTER for their work in putting these provisions into law and

lessening the discretion in their implementation.368

______________

MR. FITZGERALD: It bears emphasis that by granting

PNTR, the United States gives up no trade protections. China

 

• At 31-32, Statement of Dan Glickman, Secretary, U.S. Dept. of Agriculture: "The product-specific

safeguard provision sets up a special mechanism to address increased imports that cause or threaten to

cause market disruption to a U.S. industry. . . . This could permit action in more cases."

• At 36, Statement of William M. Daley, Secretary, U.S. Dept. of Commerce: "The agreed provisions include

special protections to guard against import surges from China. China has agreed to a 12-year productspecific safeguard provision which ensures that the United States can take effective action in case of

increased exports from China which cause market disruption in the United States. This applies to all

industries, permits us to act on a lower showing of injury to domestic industry than under existing

safeguard law and allows us to act specifically against imports from China."

367 146 Cong. Rec. H3957 (daily ed. May 23, 2000) (statement of Mr. Levin).

368 146 Cong. Rec. H3606 (daily ed. May 23, 2000) (statement of Mr. Bentsen).
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already enjoys normal trade relations with the United States – our

markets are already open to Chinese imports. The concessions that

were made as a condition to Chinese entry to WTO were all made

by the Chinese – the U.S. gave up nothing and PNTR will not

affect a single American tariff or other trade barrier.369

______________

MR. BAUCUS: The safeguard provision . . . is a very important

feature of this bill. It ensures that if shifts in trade patterns

following China’s entry into the world trading system cause or

threaten dislocations to American workers, businesses, and

farmers, they will be able to obtain relief quickly.370

The Administration, in negotiating the product-specific safeguard mechanism in the USChina Bilateral Trade Agreement, was concerned about the effects of present and past import

surges from China, and sought to provide strong protections to U.S. industries from anticipated

future import surges. The expectation of future import surges was not a theoretical

consideration, but an expectation based on past surges of Chinese imports. Indeed, a review of

U.S. trade statistics for imports from China during the period 1996-2000 (the period during

which the US-China Bilateral Trade Agreement was negotiated) demonstrates numerous

significant increases of imports from China on a yearly basis. As an illustration, the following

table shows product sectors (identified by SITC code) that experienced a greater-than-50%

increase in imports (by value) between 1999 and 2000.

 

369 146 Cong. Rec. S8614 (daily ed. September 15, 2000) (statement of Mr. Fitzgerald).

370 146 Cong. Rec. S8633 (daily ed. September 15, 2000) (statement of Mr. Baucus).
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SELECTED U.S. IMPORTS FROM CHINA -- 1996-2000

(BY INDUSTRIAL GROUPING)

U.S. Imports from China

1996-2000 BY INDUSTRIAL GROUPING (SITC - 3 DIGIT)

Product SITC

CODE

1996

($000)

1997

($000)

1998

($000)

1999

($000)

2000

($000)

% Change

1999-2000

-- Live Animals Other Than Fish, Seafood 00 4,328 1,603 1,703 2,849 5,126 79.9%

* Meat, Dried, Salted, or Smoked 012 1,208 1,768 1,335 2,356 3,695 56.8%

* Crustaceans, Molluscs 036 128,145 154,446 127,533 133,853 230,548 72.2%

* Other Cereals 045 56 107 71 75 193 157.3%

* Cereal Meals & Flours 047 226 192 7 46 205 345.7%

* Fruit & Vegetable Juice 059 8,285 26,128 30,083 24,412 39,507 61.8%

* Sugar Confectionary 062 7,174 10,705 11,899 16,503 25,946 57.2%

* Chocolate 073 58 34 157 87 267 206.9%

-- Animal Feed (not including unmilled cereals) 08 4,755 12,056 8,417 9,222 21,112 128.9%

* Nonalcoholic Beverages 111 1,589 1,799 1,952 1,669 3,985 138.8%

-- Tobacco & Tobacco Products 12 6,666 9,427 11,712 11,634 19,558 68.1%

* Unmanufactured 121 6,494 9,192 11,381 10,661 17,635 65.4%

* Manufactured 122 172 235 331 973 1,924 97.7%

* Raw Furskins 212 43 15 23 9 52 477.8%

* Oil Seeds & Fruit (incl. Flours & Meals) 223 758 694 245 679 1,103 62.4%

* Wood in Chips or particles 246 72 107 160 120 191 59.2%

* Textile Fibers, not Spun 264 1,117 15 4 3 14 366.7%

* Vegetable Textile Fibers, but not spun 265 35 39 9 94 153 62.8%

* Manmade Fibers for spinning 267 3 0 0 2 229 11350.0%

* Fertilizer, Crude (excpt division 56) 272 0 9 104 67 127 89.6%

* Stone, Sand & Gravel 273 1,254 1,035 1,072 3,215 8,956 178.6%

* Base Metals, Ores & Concentrates 287 3,684 6,221 4,439 2,385 7,965 234.0%

* Nonferrous Base Metal Waste & Scrap 288 895 1,033 923 2,338 4,012 71.6%

* Precious Metals, waste and scraps 289 78 1,805 82 73 1,655 2167.1%

Mineral Fuels, Lubricants & Related Materials 3 462,465 390,659 360,998 237,729 615,373 158.9%

-- Coal, Coke & Briquettes 32 94,525 89,532 114,453 66,712 114,041 70.9%

* Coke & Semicoke of Coal 325 94,525 89,282 114,190 65,638 112,599 71.5%

-- Petroleum Products & Related Materials 33 348,963 266,663 214,390 162,035 482,528 197.8%

* Petroleum Oils, Crude 333 226,970 109,204 60,382 10,655 105,605 891.1%

* Petroleum Oils 334 94,587 81,725 70,283 84,812 267,945 215.9%

* Residual Petroleum Products 335 27,406 75,914 83,725 66,568 108,977 63.7%

-- Gas, Natural & Manufactured 34 18,976 34,464 32,155 8,981 18,804 109.4%

* Liquefied Propane and Butane 342 3,245 6,377 10,598 4,736 8,298 75.2%

* Petroleum Gases 344 15,731 28,088 21,557 4,245 10,506 147.5%

-- Animal Oils & Fats 41 7 26 30 10 145 1350.0%

* Fixed Vegetable Fats & Oils 421 3,107 1,720 677 811 2,212 172.7%

* Soap, Cleansing & Polishing Preparations 554 6,606 5,920 6,007 7,433 12,635 70.0%

-- Fertilizers (incl. group 272) 56 850 537 861 645 4,809 645.6%

* Polymers of Styrene, in Primary Forms 572 224 81 417 229 1,159 406.1%

* Monofilament 583 135 575 175 969 1,644 69.7%

* Leather 611 1,912 1,745 2,358 585 2,596 343.8%

* Furskins, Tanned or Dressed 613 1,119 2,511 905 793 1,618 104.0%

* Cork Manufactures 633 555 858 579 1,125 1,933 71.8%

* Paper & Paperboard 641 4,426 5,878 5,022 7,134 12,961 81.7%

* Woven Manmade Fabrics 653 32,727 77,102 69,751 50,585 84,938 67.9%

-- Iron and Steel 67 291,744 314,659 398,424 349,843 623,265 78.2%
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U.S. Imports from China

1996-2000 BY INDUSTRIAL GROUPING (SITC - 3 DIGIT)

Product SITC

CODE

1996

($000)

1997

($000)

1998

($000)

1999

($000)

2000

($000)

% Change

1999-2000

* Semifinished Iron & Steel Products 672 1,051 1,360 4,203 6,850 31,770 363.8%

* Non-alloy, Non-coated Steel Flat Products 673 110,637 100,666 117,926 115,476 181,044 56.8%

* Alloy Steel Flat Products 675 209 180 856 1,449 7,364 408.2%

* Steel Bars, Rods, Angles, Shapes & Sections 676 14,020 12,355 12,895 16,372 68,385 317.7%

* Steel Rails and Railway Products 677 288 705 1,895 1,789 3,025 69.1%

* Steel Pipe & Tube, Fittings 679 82,659 105,237 151,245 126,479 228,020 80.3%

* Metal Structures 691 7,026 9,191 13,991 34,704 54,916 58.2%

* Steam/Vapor Generating Boilers 711 1,565 1,708 368 3,798 12,938 240.7%

* Other Nonelectric Engines & Motors 714 49,019 15,385 25,129 32,176 50,360 56.5%

* Agricultural (excl. tractors) 721 13,343 13,993 15,906 19,469 29,702 52.6%

* Tractors 722 6,526 5,427 3,495 3,144 6,321 101.0%

* Food Processing Machines 727 1,712 1,625 1,951 2,978 6,953 133.5%

* Metal Working Machines used solely w/ metal

machines 735 16,079 14,045 15,209 19,577 30,441 55.5%

* Automatic Data Processing Machines 752 1,407,603 2,044,187 2,783,390 4,105,935 6,299,714 53.4%

* Medical & Dental Electric Diagnostic Equip 774 19,065 22,421 16,041 27,159 47,827 76.1%

-- Road Vehicles 78 417,344 574,361 731,255 923,424 1,800,180 94.9%

* Trailers & Semi-Trailers 786 44,416 53,813 81,942 91,232 624,229 584.2%

* Prefabricated Buildings 811 17 1,297 1,060 1,223 3,961 223.9%

* Sanitary, Plumbing & Heating Fixtures 812 846 3,265 8,650 15,952 24,979 56.6%

* Meters & Counters 873 5,991 4,716 6,668 7,890 14,177 79.7%

* Photography & Cinematographic Supplies 882 7,821 13,057 9,904 9,779 29,962 206.4%

* Printed Matter 892 110,056 134,510 184,413 254,389 384,354 51.1%

Source: U.S. Department of Commerce, International Trade Administration, Monitoring of Imports from the

PRC, http://ia.ita.doc.gov/monitor/china/china-monitor-3-digit.htm.

Import surges of products from China were not a concern of the United States alone. As

noted, the Transitional Product-Specific Safeguard Mechanism was a WTO protocol

commitment of China and, as such, the mechanism is available for use by other WTO Members.

China export statistics indicate that countries other than the United States have experienced

significant increases in imports from China. For instance, statistics published by the WTO show

significant yearly increases in China's exports to the European Union and Japan occurred in the

period before China's WTO accession.
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EU AND JAPANESE IMPORTS FROM CHINA: 1990-00, 1998, 1999 AND 2000

Annual Percentage Change in Total Merchandise Imports from China

1990-00 1998 1999 2000

EU 16% 12% 13% 22%

Japan 16% -11% 16% 29%

Source: WTO, International Trade Statistics, 2001, at 90 (Table III.76).

In addition, WTO statistics demonstrate that, over the pre-accession period of 1995-2001,

WTO Members initiated more antidumping investigations and imposed more antidumping

measures against imports from China than against any other country. Thus, it is evident that

many other countries, not only the United States, had experienced increased, injurious imports

from China in the period prior to China's WTO accession. Statistics show that, over the 1995-

2001 period, antidumping measures imposed on imports from China were more than double the

number of measures imposed on Korea, the next most affected country.

Antidumping Initiations: Top Ten Affected Countries -- 01/01/95 to 31/12/01

Affected Country 1995 1996 1997 1998 1999 2000 2001 Totals:

Brazil 8 10 5 6 13 9 12 63

China, P.R. 20 43 33 28 41 43 47 255

Chinese Taipei 4 9 16 10 22 16 19 96

Germany 7 9 13 8 13 4 9 63

India 3 11 8 12 13 10 12 69

Indonesia 7 7 9 5 20 13 13 74

Japan 5 6 12 13 22 9 12 79

Korea, Rep. of 14 11 15 24 34 21 19 138

Thailand 8 9 5 2 19 12 16 71

United States 12 21 15 15 14 12 13 102

Totals for 01/01/95 -

31/12/01

157 224 243 254 356 281 330 1845

Source: WTO website, http://www.wto.org/english/tratop_e/adp_e/adp_e.htm. Only 33 of the

255 initiations against China concerned U.S. actions.
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Antidumping Measures: Top Ten Affected Countries -- 01/01/95 to 31/12/01

Affected Country 1995 1996 1997 1998 1999 2000 2001 Totals:

Brazil 9 10 6 5 5 8 2 45

China, P.R. 26 15 33 24 20 30 30 178

Chinese Taipei 2 2 6 11 7 18 9 55

India 4 1 5 6 9 7 6 38

Japan 5 6 5 7 10 19 8 60

Korea, Rep. of 4 5 3 12 13 21 12 70

Russia 8 2 9 4 15 9 6 53

Thailand 5 7 2 5 1 13 7 40

Ukraine 5 0 3 5 7 7 6 33

United States 8 4 9 11 8 13 4 57

Totals for 01/01/95 -

31/12/01

118 84 124 162 181 234 163 1066

Source: WTO website, http://www.wto.org/english/tratop_e/adp_e/adp_e.htm. Only 29 of the

178 measures against China were imposed by the United States.

3. Efforts by U.S. industries to use the provisions

(a) Textile safeguards

The special textile safeguard set out in the Working Party Report to China's WTO

accession became effective upon China's entry into the WTO on December 11, 2001. As noted

above, CITA did not issue procedural rules implementing the special textile safeguard in U.S.

law until May 2003. However, even before CITA's issued its procedural rules, U.S. textile

groups attempted to employ the special textile safeguard.

In September 2002, pursuant to the specific textile safeguard mechanism established in

the Working Party Report (at paragraph 242), the American Textile Manufacturers Institute

(ATMI) petitioned CITA to impose special textile quotas on five product categories: (1) knit
CHINA'S COMPLIANCE WITH WORLD TRADE ORGANIZATION OBLIGATIONS:

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fabric; (2) gloves; (3) dressing gowns; (4) brassieres; and (5) textile luggage.371 In addition,

ATMI identified a sixth product, textured filament yarn from China, and asked CITA to prepare

a case for the possible imposition of quota restraints on imports of that product in the event that

imports continued to increase.372

In making its request, ATMI cited a 119% increase in textile imports from China in the

first six months of 2002 and stated that imports of Chinese textile products were "experiencing

their greatest surge in history."373

During the first six months of the year, Chinese exports of textile

and apparel products to the United States increased by almost 900

million square meters, with the textile portion increasing by more

than 700 million square meters. On the strength of this increase,

China surpassed both Pakistan and Canada to become the second

largest textile and apparel exporter to the United States, shipping

1.9 billion square meters during the first six months of the year.

China accounted for 60 percent of the increase in world-wide

imports of textile and apparel products during the first half of the

year.374

ATMI also presented the following data with respect to the product categories identified

in its petition.

1) Knit fabric – Chinese knit fabric exports rose 22 thousand

percent and the average price of Chinese knit fabric dropped by

60 percent, catapulting China from being the 26th largest

supplier of such exports to the U.S. to the 5th place among all

foreign suppliers;

 

371 ATMI press release, ATMI Calls for New Quotas on Surging Chinese Imports, September 5, 2002 (available at

http://www.atmi.org/NewsRoom/releases/pr200302.asp).

372 ATMI press release, ATMI Calls for New Quotas on Surging Chinese Imports, September 5, 2002 (available at

http://www.atmi.org/NewsRoom/releases/pr200302.asp).

373 ATMI press release, ATMI Calls for New Quotas on Surging Chinese Imports, September 5, 2002 (available at

http://www.atmi.org/NewsRoom/releases/pr200302.asp).

374 ATMI press release, ATMI Calls for New Quotas on Surging Chinese Imports, September 5, 2002 (available at

http://www.atmi.org/NewsRoom/releases/pr200302.asp).
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2) Gloves – China’s exports of gloves to the United States tripled

over the last six months, with the result that Chinese exports

are now twice as large as those from the next largest supplier;

3) Nightwear/Dressing Gowns – Chinese exports of nightwear

more than quadrupled, vaulting China from seventh to first

place among supplying countries. The Chinese surge was

accompanied by a 47% drop in Chinese prices;

4) Brassieres – In less than six months, China leapfrogged the top

two long-standing largest suppliers – Mexico and the

Dominican Republic – as China’s price per dozen dropped to

$29, by far the lowest of any major supplier;

5) Luggage – Chinese exports of textile luggage have quadrupled

to 71 million kilograms while imports from every other

supplier have simultaneously dropped, some by as much as 60

percent. Chinese prices fell by 62% during the same period of

time. China now ships more than five times as much as the

next largest supplier;

6) Textured filament yarn – Chinese exports have only recently

begun to surge and remain relatively small. However, over the

past two months, Chinese exports increased at a rate of 400,000

kilograms a month.375

At the time the petitions were filed, importers questioned whether ATMI was eligible to

request textile safeguards with respect to certain of the products identified because ATMI

members do not make four of the five products for which ATMI petitioned for relief (i.e.,

dressing gowns, brassieres, gloves, and textile luggage).376 However, ATMI members do

produce and supply the fabric used in making these products. A press article noted at the time

that:

 

375 ATMI press release, ATMI Calls for New Quotas on Surging Chinese Imports, September 5, 2002 (available at

http://www.atmi.org/NewsRoom/releases/pr200302.asp).
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For CITA to impose a safeguard, it would have to apply an

expansive definition of market disruption that would cover

upstream suppliers of a given product, an ATMI source said.

Under this definition, quotas could be imposed on a given product

if it disrupted U.S. exports of fabric used to make these items, he

said. This would be consistent with the market disruption

definition CITA has applied in the past to invoke quotas under the

Multifiber Arrangement (MFA), he said.

* * *

A Commerce Dept. official said this week that given this first

request, CITA is looking at both the specific categories as well as

the whole process for evaluating the request. This includes

questions of whether upstream suppliers can claim market

disruption or whether petitioners have to meet a standing

requirement, he said. He said that CITA would “at some point”

decide how to proceed on the request.377

Prior to CITA's issuance of procedural rules applicable to special textile safeguard

requests in May 2003, CITA took no official action with respect to ATMI's September 2002

petitions.378 When CITA issued its procedural rules, however, it resolved the question about

ATMI's standing by determining that, in accord with past CITA practice, domestic producers of

components used in producing like or directly competitive products were eligible to request

safeguards:

Consistent with longstanding Committee practice in considering

textile safeguard actions, requests may be filed by an entity (which

may be a trade association, firm, certified or recognized union, or

group of workers) that is representative of either: (A) a domestic

producer or producers of a product that is a like or directly

 376 ATMI Seeks Relief Under China-Specific Safeguard on Five Import Categories, INSIDE US-CHINA TRADE,

September 11, 2002.

377 ATMI Seeks Relief Under China-Specific Safeguard on Five Import Categories, INSIDE US-CHINA TRADE,

September 11, 2002.

378 A press report noted: "The [ATMI's] petition has so far been held in abeyance because there are no rules

governing the process of receiving and deciding on petitions under the safeguards." China Seeks Meeting to

Convince ATMI to Drop Safeguard Petition, INSIDE US-CHINA TRADE, May 7, 2003.
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competitive with the subject Chinese textile or apparel product; or

(B) a domestic producer or producers of a component used in the

production of a product that is like or directly competitive with the

subject Chinese textile or apparel product.379

Once the new procedural rules were issued, it was determined that ATMI (the only

petitioner for a China-specific textile safeguard so far) would need to re-file the petitions it had

initially filed in September 2002.

. . . Commerce has indicated that it will have to re-file a petition on

Chinese safeguards now that the regulations outlining the process

have been published . . . . One source said that while some

officials have said a new petition is not needed, ATMI will need to

include new information, which means it will effectively have to

file a new document with CITA before the process begins.380

On July 24, 2003, ATMI, together with certain other textile groups, filed petitions

requesting that a textile and apparel safeguard action be taken against China with respect to four

product categories. In August 2003, CITA accepted three of the petitions filed by ATMI (knit

fabric, dressing gowns, and brassieres) and rejected the fourth (gloves). The following

summarizes the petitioners, product categories, and status of and the four petitions:

Petitioners Product Category Status

• American Yarn Spinners Association

• American Manufacturing Trade Action Coalition

• American Textile Manufacturers Institute

• National Textile Association

Knit fabric 222 Accepted by

CITA

• American Manufacturing Trade Action Coalition

• American Textile Manufacturers Institute

• National Textile Association

Cotton and manmade fiber

dressing gowns

350/650 Accepted by

CITA

 

379 See Procedures for Considering Requests from the Public for Textile and Apparel Safeguard Actions on

Imports from China, 68 Fed. Reg. at 27788.

380 ATMI May File Limited Petition In Light Of New China Textile Safeguard, INSIDE US-CHINA TRADE, May 29,

2003.
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Petitioners Product Category Status

• American Manufacturing Trade Action Coalition

• American Textile Manufacturers Institute

• National Textile Association

Cotton and manmade fiber

brassieres

349/649 Accepted by

CITA

• American Manufacturing Trade Action Coalition

• American Textile Manufacturers Institute

• National Textile Association

Cotton and manmade fiber gloves331/631 Rejected by

CITA

On August 18, 2003, CIT published a notice in the Federal Register soliciting public

comments on the three safeguard requests that it had accepted.381 The petitions on these three

product categories showed substantial increases in imports of various textile and apparel

products from China. For example, the petition on certain knit fabrics showed an increase in

imports from a little over 31,000 kilograms in 2001 to more than 7 million kilograms in 2002,

accompanied by price declines of more than 50 percent.382 The petitions on the other products

also showed increases in imports from China of 300 to more than 500% and price declines of 44-

50 percent between 2001 and 2002.383

The public comment period for the three textile petitions ended on September 17, 2003.

On December 23, 2003, CITA determined that Chinese-origin knit fabric, dressing gowns, and

brassieres are, due to market disruption (and the threat thereof), threatening to impede the orderly

development of trade in such products, and that imports of such products from China play a

 

381 See Solicitation of Public Comments on Request for Textile and Apparel Safeguard Action on Imports from

China, 68 Fed. Reg. 49440 (knit fabric; category 222) (CITA, August 18, 2003); Solicitation of Public

Comments on Request for Textile and Apparel Safeguard Action on Imports from China, 68 Fed. Reg. 49444

(dressing gowns; category 350/650) (CITA, August 18, 2003); Solicitation of Public Comments on Request for

Textile and Apparel Safeguard Action on Imports from China, 68 Fed. Reg. 49448 (brassieres; category

349/649) (CITA, August 18, 2003).

382 See Solicitation of Public Comments on Request for Textile and Apparel Safeguard Action on Imports from

China, 68 Fed. Reg. at 49444.

383 See Solicitation of Public Comments on Request for Textile and Apparel Safeguard Action on Imports from

China, 68 Fed. Reg. at 49448 and 49452.
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significant role in the existence (and threat) of market disruption. Pursuant to these findings, on

December 29, 2003, CITA issued notices in the Federal Register announcing that it had (1)

established import limits for knit fabric, dressing gowns, and brassieres, and (2) requested

consultations with China.384 The import limits established by CITA on these textile products

from China became effective on December 24, 2003 and will extend through December 23,

2004.385

(b) Import surges and Section 421 of the Trade Act of 1974 as

amended

To date, five investigations have been initiated under Section 421 covering the following

imported products from China: (1) pedestal actuators, (2) steel wire garment hangers, (3) brake

drums and rotors, (4) ductile iron waterworks fittings (DIWF), and (5) innersprings. All five

have been completed. In the first (pedestal actuators), second (wire hangers), and fourth (DIWF)

cases, the International Trade Commission made an affirmative determination of injury, finding

in each case that the Chinese products were being imported into the United States in such

increased quantities or under such conditions as to cause market disruption to the domestic

producers of like or directly competitive products.386 In those three cases, the ITC recommended

 

384 See Announcement of Request for Bilateral Textile Consultations with the Government of the People’s

Republic of China and the Establishment of an Import Limit for Knit Fabric, Category 222, Produced or

Manufactured in the People’s Republic of China, 68 Fed. Reg. 74944 (CITA, December 29, 2003);

Announcement of Request for Bilateral Textile Consultations with the Government of the People’s Republic of

China and the Establishment of an Import Limit for Brassieres and Other Body Supporting Garments,

Category 349/649, Produced or Manufactured in the People’s Republic of China, 68 Fed. Reg. 74945 (CITA,

December 29, 2003); Announcement of Request for Bilateral Textile Consultations with the Government of the

People’s Republic of China and the Establishment of an Import Limit for Cotton and Man-Made Fiber

Dressing Gowns and Robes, Category 350/650, Produced or Manufactured in the People’s Republic of China,

68 Fed. Reg. 74947 (CITA, December 29, 2003).

385 Id.

386 In the third Section 421 case, the ITC made a negative determination of injury. See Certain Brake Drums and

Rotors from China, 68 Fed. Reg. 48938 (Determination) (ITC August 15, 2003).
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that the President grant relief to the domestic industry. However, no domestic industry has been

granted relief under Section 421. In each of these three affirmative cases (pedestal actuators;

wire hangers; DIWF), the President denied relief.

China has lobbied hard in the United States to discourage the President from granting

relief to domestic industries under Section 421. For example, in the first Section 421 case

involving pedestal actuators, press stories reported that the Chinese government conducted an

intense and wide ranging lobbying campaign to block relief. China's Vice-Minister for Trade,

Long Yongtu, came to Washington and met with Commerce Department officials in December

2002, arguing that the use of Section 421 would undermine China’s market access to the United

States. The Commerce Department’s General Counsel, Theodore Kassinger, told Minister

Yongtu that President Bush would take account of China's concerns in deciding on a remedy.387

In addition, a press report indicated that some administration officials believed imposition of a

safeguard measure on Chinese imports could have negative political consequences in that "a

decision to impose the ITC remedy could lead to increased use of the China-specific safeguard,

which could further complicate the bilateral trade relationship."388

After the President denied relief in the second Section 421 case concerning steel wire

garment hangers, an observer commented that one possible view of the President's action was

that it was "an overtly political decision by the President made under pressure from the Chinese

government and a signal that this administration has no intention of ever granting relief under

 

387 See Chinese Official Complains about China-Specific Safeguards, CHINATRADEEXTRA.COM, posted December

6, 2002.

388 See U.S. Holds Door Open to Settlement in First China-Specific Safeguard Case, INSIDE US-CHINA TRADE,

November 13, 2002.
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Section 421."389 The result has been that the first two cases under Section 421 were denied relief

by the President, even though the purpose of the statute and Congressional intent were that relief

would be reasonably available.

The following tables summarize the five Section 421 actions that have been initiated to

date.

TA-421-01: PEDESTAL ACTUATORS FROM CHINA

Petition Filed: August 19, 2002, on behalf of Motion Systems Corp., Eatontown, NJ.

Investigation Instituted: effective August 19, 2002; Pedestal Actuators from China, 67 Fed. Reg. 54822

(Institution) (ITC August 26, 2002).

ITC Injury Determination: Affirmative. On October 18, 2002, by a vote of 3-2, the USITC determined that

pedestal actuators from the People’s Republic of China are being imported into the United States in such

increased quantities or under such conditions as to cause market disruption to the domestic producers of like or

directly competitive products. See Pedestal Actuators from China, 67 Fed. Reg. 69557 (Determination) (ITC

November 18, 2002).

ITC Remedy Recommendation: October 29, 2002. The Commission recommended import relief in the form of a

quota.

• Commissioners Hillman and Miller recommended a quantitative import restriction for 3 years in the amount

of 5,626 units in year 1; 6,470 units in year 2; and 7,440 units in year 3.

• Commissioner Koplan recommended a quantitative import restriction for 3 years in the amount of 4,425

units in year 1; 4,514 units in year 2; and 4,604 units in year 3.

The Commission transmitted its remedy proposals to the President and U.S. Trade Representative on November 7,

2002. See Pedestal Actuators from China, 67 Fed. Reg. 69557 (Determination) (ITC November 18, 2002).

Views of Commission: Pedestal Actuators from China, TA-421-1, USITC Pub. 3557 (November 2002).

President's Decision: On January 17, 2003, the President announced that he was not providing relief because he

had determined that import relief was not in the national economic interest and that import relief would have an

adverse impact on the United States economy clearly greater than the benefits of such action. The President

provided the following reasons for his decision not to grant relief:

In determining not to provide import relief, I considered its overall costs to the U.S. economy.

The facts of this case indicate that imposing the USITC's recommended quota would not likely

benefit the domestic producing industry and instead would cause imports to shift from China to

other offshore sources.

 

389 See Eliza Patterson, The U.S. President, Once Again, Rejects Import Sanctions Against China, ASIL Insights

(May 2003) (available at the website of the American Society of International Law: www.asil.org.insights/

insigh106.htm).
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TA-421-01: PEDESTAL ACTUATORS FROM CHINA

Even if the quota were to benefit the primary domestic producer, the cost of the quota to

consumers, both the downstream purchasing industry and users of the downstream products,

would substantially outweigh any benefit to producers' income. The USITC's analysis confirms

this conclusion.

In addition, downstream industries are already under pressure to migrate production offshore to

compete with lower-cost imports of finished products. Higher component costs resulting from

import relief would add to this pressure. Given the significantly larger number of workers in the

downstream purchasing industry when compared with the domestic pedestal actuator industry, I

find that imposing import restrictions would do more economic harm than good.

Finally, a quota would negatively affect the many disabled and elderly purchasers of mobility

scooters and electric wheelchairs, the primary ultimate consumers of pedestal actuators.

Memorandum of January 17, 2003--Presidential Determination on Pedestal Actuator Imports From the People's

Republic of China, 68 Fed. Reg. 3155 (Presidential Document January 22, 2003).

TA-421-02: STEEL WIRE GARMENT HANGERS FROM CHINA

Petition Filed: November 27, 2002, on behalf of CHC Industries, Inc., Palm Harbor, FL; M&B Hangers Co.,

Leeds, AL; and United Wire Hanger Corp., South Hackensack, NJ.

Investigation Instituted: effective November 27, 2002; Certain Steel Wire Garment Hangers from China, 67 Fed.

Reg. 72700 (Institution) (ITC December 6, 2002).

ITC Injury Determination: Affirmative. On January 27, 2003, by a vote of 5-0, the USITC determined that

certain steel wire garment hangers from the People’s Republic of China are being imported into the United States

in such increased quantities or under such conditions as to cause market disruption to the domestic producers of

like or directly competitive products. See Certain Steel Wire Garment Hangers from China, 68 Fed. Reg. 8926

(Determination) (ITC February 26, 2003).

ITC Remedy Recommendation: February 5, 2003. The Commission recommended import relief in the form of an

additional duty.

• Commissioners Okun, Hillman, and Miller recommended relief in the form of an additional duty for 3 years:

25% year 1; 20% in year 2; and 15% in year 3. In addition, they recommended expedited consideration of

trade adjustment assistance for firms and/or workers affected by the subject imports.

• Commissioner Bragg recommended relief in the form of an additional duty for 2 years: 20% year 1; 15% in

year 2.

• Commissioner Koplan recommended relief in the form of an additional duty of 30% for 3 years. In addition,

he recommended expedited consideration of trade adjustment assistance for firms and/or workers affected by

the subject imports. See Certain Steel Wire Garment Hangers from China, 68 Fed. Reg. 8926

(Determination) (ITC February 26, 2003).

The Commission transmitted its remedy proposals to the President and U.S. Trade Representative on February 14,

2003. See Notice of Proposed Measure and Opportunity for Public Comment Pursuant to Section 421 of the

Trade Act of 1974: Certain Steel Wire Garment Hangers From the People's Republic of China, 68 Fed. Reg.

10765 (USTR March 6, 2003).
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TA-421-02: STEEL WIRE GARMENT HANGERS FROM CHINA

Views of Commission: Certain Steel Wire Garment Hangers from China, TA-421-2, USITC Pub. 3575 (February

2003).

President's Decision: On April 25, 2003, the President announced that he was not providing relief because he had

determined that import relief was not in the national economic interest and that import relief would have an

adverse impact on the United States economy clearly greater than the benefits of such action. The President

provided the following reasons for his decision not to grant relief:

The facts of this case indicate that imposing additional tariffs on Chinese imports would affect

domestic producers unevenly, favoring one business strategy over another. While most of the

producers would likely realize some income benefits, additional tariffs would disrupt the longterm adjustment strategy of one major producer, which is based in part on distribution of imported

hangers, and cause that producer to incur substantial costs.

In addition, most domestic producers, including the petitioners, have begun to pursue adjustment

strategies. While these strategies have included consolidation, modernization of production

facilities, and expansion into complementary products and services, domestic producers are also

expanding their use of imports. Indeed, a substantial part of the surge in imports during the most

recent period measured was brought in by domestic producers themselves, including the

petitioners.

Moreover, after 6 years of competing with Chinese imports, domestic producers still account for

over 85 percent of the U.S. wire hanger market. With this dominant share of the market, domestic

producers have the opportunity to adjust to competition from Chinese imports even without import

relief.

Furthermore, there is a strong possibility that if additional tariffs on Chinese wire hangers were

imposed, production would simply shift to third countries, which could not be subject to section

421's China-specific restrictions. In that event, import relief would have little or no benefit for any

domestic producer.

Additional tariffs would have an uneven impact on domestic distributors of wire hangers. For

some distributors, the tariffs would likely lead to some income benefits. However, the tariffs

would likely harm other distributors in light of their business models.

Additional tariffs would also likely have a negative effect on the thousands of small, familyowned dry-cleaning businesses across the United States that would either have to absorb the

resulting increased costs or pass them on to their customers.

Memorandum of April 25, 2003--Presidential Determination on Wire Hanger Imports from the People's Republic of

China, 68 Fed. Reg. 23017 (Presidential Document April 29, 2003).

TA-421-03: BRAKE DRUMS AND ROTORS FROM CHINA

Petition Filed: June 6, 2003, on behalf of the Coalition for the Preservation of American Brake Drum and Rotor

Aftermarket Manufacturers (consisting of Dana Corp. (Brake and Chassis Division)/Brake Parts, Inc.; Federal

Mogul Corp.; and Thyssen Krupp Waupaca/Waupaca Foundry, Inc.).
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TA-421-03: BRAKE DRUMS AND ROTORS FROM CHINA

Investigation Instituted: effective June 6, 2003; Certain Brake Drums and Rotors from China, 68 Fed. Reg.

35702 (Institution) (ITC June 16, 2003).

ITC Injury Determination: Negative. On December 4, 2003, by a vote of 5-0, the USITC determined that

certain brake drums and rotors from the People’s Republic of China are not being imported into the United States

in such increased quantities or under such conditions as to cause market disruption to the domestic producers of

like or directly competitive products. See Certain Brake Drums and Rotors from China, 68 Fed. Reg. 48938

(Determination) (ITC August 15, 2003).

ITC Remedy Recommendation: None.

Views of Commission: Certain Brake Drums and Rotors from China, TA-421-3, USITC Pub. 3622 (August

2003).

President's Decision: None.

TA-421-04: DUCTILE IRON WATERWORKS FITTINGS FROM CHINA

Petition Filed: September 5, 2003, on behalf of McWane, Inc., Birmingham, AL, and three subsidiaries: Clow

Water Systems Co., Coshocton, OH, Tyler Pipe Co., Tyler, TX, and Union Foundry Co., Anniston, AL.

Investigation Instituted: effective September 5, 2003; Certain Ductile Iron Waterworks Fittings from China, 68

Fed. Reg. 54010 (Institution) (ITC September 15, 2003).

ITC Injury Determination: December 4, 2003. By a vote of 6-0, the USITC determined that certain ductile iron

waterworks fittings from the People’s Republic of China are being imported into the United States in such

increased quantities or under such conditions as to cause market disruption to the domestic producers of like or

directly competitive products. See Certain Ductile Iron Waterworks Fittings from China, 68 Fed. Reg. 69421

(Determination) (ITC December 12, 2003).

ITC Remedy Recommendation: December 15, 2003. The Commission recommended import relief in the form of

a tariff-rate quota for a three-year period:

• 50% tariff on imports exceeding 14,324 short tons in year 1;

• 40% tariff on imports exceeding 15,398 short tons in year 2; and

• 30% tariff on imports exceeding 16,553 short tons in year 3.

The Commission further recommended expedited consideration of trade adjustment assistance for firms and/or

workers affected by the subject imports.

The Commission transmitted a report on its determination, as well as its remedy proposals, to USTR on December

24, 2003.

Views of Commission: Certain Ductile Iron Waterworks Fittings from China, TA-421-4, USITC Pub. 3657

(December 2003).

President's Decision: On March 3, 2004, the President announced that he was not providing relief because he had

determined that import relief was not in the national economic interest and that import relief would have an
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TA-421-04: DUCTILE IRON WATERWORKS FITTINGS FROM CHINA

adverse impact on the United States economy clearly greater than the benefits of such action. The President

provided the following reasons for his decision not to grant relief:

The facts of this case indicate that imposing the USITC's recommended tariff-rate quota remedy or

any other import relief available under section 421 would be ineffective because imports from

third countries would likely replace curtailed Chinese imports. The switch to third country imports

could occur quickly because the major U.S. importers already import substantial quantities from

countries such as India, Brazil, Korea, and Mexico. Because importers' existing inventories of

imports will likely cover demand for approximately 6 to 12 months from the imposition of import

relief, a switch from China to alternative import sources would not likely lead to significant

additional demand for domestically produced pipe fittings, even accounting for a time lag in

making that switch. Under these circumstances, import relief would provide no meaningful benefit

to domestic producers.

In addition, import relief would cost U.S. consumers substantially more than the increased income

that could be realized by domestic producers. Indeed, the USITC estimated that its recommended

remedy would generate a negative net domestic welfare effect of between $2.3 million and $3.7

million in the first year alone.

While not necessary in reaching my determination that imposing import relief would have an

adverse impact on the United States economy clearly greater than the benefits, it is also worth

noting two additional points:

• First, evidence suggests that domestic producers enjoy a strong competitive position in the

U.S. market, and in fact the largest domestic producer recently announced price increases

nationwide ranging from 8 to 35 percent. The two smaller domestic producers and the major

U.S. importers have publicly indicated that they would follow these price increases.

• Second, in 2002 and 2003, imports of this product have been relatively stable in volume terms

and have shown a slight decline in value terms.

The circumstances of this case make clear that the U.S. national economic interest would not be

served by the imposition of import relief under section 421. I remain fully committed to exercising

the important authority granted to me under section 421 when the circumstances of a particular

case warrant it.

Memorandum of March 3, 2004--Presidential Determination on Imports of Certain Ductile Iron Waterworks

Fittings From the People's Republic of China, 69 Fed. Reg. 10597 (Presidential Document March 8, 2004).

TA-421-05: INNERSPRINGS FROM CHINA

Petition Filed: January 6, 2004, on behalf of the U.S. member companies of The American Innerspring

Manufacturers (AIM), Memphis, TN. Petitioning firms include Atlas Spring, Gardena, CA; Hickory Springs

Manufacturing Co., Hickory, NC; Leggett & Platt, Carthage, MO; and Joseph Saval Spring & Wire Co., Inc.,

Taylor, MI.

Investigation Instituted: effective January 6, 2004; Innersprings from China, 69 Fed. Reg. 2002 (Institution)

(ITC January 13, 2004).
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TA-421-05: INNERSPRINGS FROM CHINA

ITC Injury Determination: Negative. On March 8, 2004, by a vote of 6-0, the USITC determined that

uncovered innerspring units from the People’s Republic of China are not being imported into the United States in

such increased quantities or under such conditions as to cause market disruption to the domestic producers of like

or directly competitive products. See ITC News Release 04-022: ITC Announces Determination in China

Safeguard Investigation Concerning Uncovered Innerspring Units from China (March 8, 2004).

ITC Remedy Recommendation: None.

Views of Commission: To be submitted by March 26, 2004.

President's Decision: None.

The President's failure to grant relief in any of the Section 421 cases in which the ITC has

recommended relief has been criticized as not respecting congressional intent and an abuse of

presidential discretion. Representative Sander Levin (Dem.-MI), for example, issued the

following comments after the President denied relief to domestic producers of DIWF on March

3, 2004:

The President's determination flies in the face of the ITC's clear

decisions and, in so doing, demonstrates a disturbing approach to

the safeguard law and U.S. fair trade laws. The President once

again gives short shrift to the harm found to have been suffered by

U.S. workers and businesses and the benefits to the U.S. economy

from a stable and predictable rules-based trading system.

The President's approach is inconsistent with the letter of U.S. law

and the clear intent of Congress - and the strong bipartisan,

bicameral majorities in Congress that have consistently supported

the safeguard and fair trade laws. The China-specific safeguard

was a vital feature of the China PNTR legislation, which I worked

to include because it was clear that China would increasingly be a

competitor with U.S. products, as well as a consumer market for

those products. As a result, when Congress created the Chinaspecific safeguard, Congress carefully limited the President's

discretion to deny relief when the ITC, after an extensive

investigation, makes an affirmative determination. This was a key

difference between the special China safeguard and the broader

safeguard rules.
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* * *

A rules-based system has been a key pillar of congressional

support for trade expanding efforts, including the legislation to

grant permanent normal trade relations (PNTR) to China. As a

result, the content of the President's determination reinforces

serious concerns about the Administration's dedication to vigorous

enforcement of U.S. trade laws and to preserving US jobs. Many

of the President's justifications for his denial of relief in this case

could be used to deny relief in virtually every safeguard case -

whether under the China-specific safeguard or under safeguard

cases more generally. Many of his other justifications reflect

selective examination of the facts, and were specifically considered

and rejected by the independent ITC when it came to its

unanimous conclusion. As in the two prior cases in which the

President chose to deny relief, the case - and the American workers

and businesses involved - deserved not a rationalization, but

respect for Congress' intent when we created the law.390

(c) Treatment of China as a non-market economy under U.S.

antidumping duty law

In U.S. law, the general antidumping rules apply to imports from China as well as other

countries. However, U.S. antidumping law provides a special methodology for calculating

normal value in proceedings involving imports from countries with non-market economies

("NMEs"). The U.S. Department of Commerce (Commerce) considers China to be an NME

country. This means that Chinese exporters are deemed to be operating within a centrally

planned economy in which the government controls pricing and production decisions.

Therefore, except in cases where individual companies can demonstrate an absence of

government control over their export activities, the Commerce treats all exporters as a single

 

390 Administration Keeps Unbroken Record of Not Standing Up for American Workers and Businesses Against

Injurious Imports from China - Puts Another 5000 U.S. Manufacturing Jobs at Peril, Comments of Rep.

Sander Levin regarding President's Bush decision to deny relief in the DIWF 421 case (March 5, 2004)

(emphasis in original); available at http://www.insidetrade.com/secure/pdf5/wto2004_1302.pdf.
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enterprise for dumping purposes by virtue of the presumption of common government control

over Chinese exporters' trade activities. Exporters who show an absence of government control,

however, are eligible to receive a separate dumping margin specific to their imports.

Because Commerce considers the Chinese economy not to operate on market principles

of cost and pricing structures, the prices and costs in the Chinese market are regarded as

unreliable, and, as a result, Commerce will not use those prices and costs for purposes of a

dumping calculation. Instead, Commerce uses the "NME" methodology which is essentially a

modification of the constructed value methodology that Commerce employs in ordinary

antidumping investigations. Under the "NME" methodology, Commerce selects the prices of

inputs and the expense and profit percentages experienced in other, "surrogate" market

economies to build up a theoretical price that would be charged in China if China were a "market

economy country." Under this methodology, for example, Commerce might decide to use India

as a "surrogate economy" for China, and, using the prices of inputs in India, build up a

theoretical price that would have been charged to home-market customers in China, if China

were a market economy.

In the U.S.-China Bilateral Trade Agreement (signed November 15, 1999), the United

States negotiated with China for the right to continue applying its so-called "non-market

economy" methodology to Chinese imports subject to antidumping investigations in the United

States for 15 years after China's WTO accession. In the Protocol of Accession, this commitment

was multilateralized to all WTO Members for antidumping (and countervailing duty) cases.

Thus, for 15 years, to the extent they choose to do so and so long as they consider China a nonmarket economy country, the United States and other WTO Members may, in determining price
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comparability in antidumping investigations concerning imported products from China, employ

the special "NME" methodology that is not based on a strict comparison with domestic prices or

costs in China. However, China is permitted to demonstrate that market conditions prevail in its

economy as a whole or in a particular industry, and, if such a demonstration is accepted by a

WTO Member's investigating authority and it concludes that China is a market economy

country, the Member must thenceforward employ the normal rules in determining price

comparability in antidumping and countervailing duty cases. To date, in U.S. antidumping duty

investigations of imported products from China, Commerce has consistently maintained its

position that China is a non-market economy country and has applied the NME methodology.

China's commitment with respect to allowing use of the "NME" methodology was set out

in Article 15 of the Protocol on Accession and is reproduced in the following box.

Protocol on Accession, WT/L/432 (23 November 2001)

15. Price Comparability in Determining Subsidies and Dumping

Article VI of the GATT 1994, the Anti-Dumping Agreement and the SCM Agreement shall apply in

proceedings involving imports of Chinese origin into a WTO Member consistent with the following:

(a) In determining price comparability under Article VI of the GATT 1994 and the AD Agreement, the

importing WTO Member shall use either Chinese prices or costs for the industry under investigation or a

methodology that is not based on a strict comparison with domestic prices or costs in China based on the

following rules:

(i) If the producers under investigation can clearly show that market economy conditions prevail in the

industry producing the like product with regard to the manufacture, production and sale of that

product, the importing WTO Member shall use Chinese prices or costs for the industry under

investigation in determining price comparability;

(ii) The importing WTO Member may use a methodology that is not based on a strict comparison with

domestic prices or costs in China if the producers under investigation cannot clearly show that

market economy conditions prevail in the industry producing the like product with regard to

manufacture, production and sale of that product.

(b) In proceedings under Parts II, III and V of the SCM Agreement, when addressing subsidies described in

Articles 14(a), 14(b), 14(c) and 14(d), relevant provisions of the SCM Agreement shall apply; however,

if there are special difficulties in that application, the importing WTO Member may then use

methodologies for identifying and measuring the subsidy benefit which take into account the possibility
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Final Report, March 19, 2004 Page 239

that prevailing terms and conditions in China may not always be available as appropriate benchmarks. In

applying such methodologies, where practicable, the importing WTO Member should adjust such

prevailing terms and conditions before considering the use of terms and conditions prevailing outside

China.

(c) The importing WTO Member shall notify methodologies used in accordance with subparagraph (a) to the

AD Practices Committee and shall notify methodologies used in accordance with subparagraph (b) to the

SCM Committee.

(d) Once China has established, under the national law of the importing WTO Member, that it is a market

economy, the provisions of subparagraph (a) shall be terminated provided that the importing Member's

national law contains market economy criteria as of the date of accession. In any event, the provisions of

subparagraph (a)(ii) shall expire 15 years after the date of accession. In addition, should China establish,

pursuant to the national law of the importing WTO Member, that market economy conditions prevail in a

particular industry or sector, the non-market economy provisions of subparagraph (a) shall no longer

apply to that industry or sector.
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III. CONCLUSION AND RECOMMENDATIONS

China's record of compliance with its accession commitments and WTO obligations

during the first two years of WTO membership is a mixed one. In many areas, China has made a

good faith effort to reform its legal structure, amend and enact laws and regulations to conform

to WTO requirements, implement changes to its tariff schedule, and transform its trade practices

to be in conformity with WTO norms. However, in many significant areas, as described in the

body of the foregoing report, China has fallen short of meeting fully its WTO and accession

commitments and obligations. Indeed, USTR's 2003 report noted that China’s WTO

implementation efforts lost a significant amount of momentum in the past year.

Significant areas where China has not fully complied with its obligations to open market

access, implement commitments or otherwise meet WTO requirements include, among others,

trading rights, agricultural TRQs, VAT applied to semiconductors, auto financing, financial

services (both banking and insurance), transparency, and intellectual property rights protection

and enforcement.

The challenges posed by China's entry into the WTO are broad. There is no single

answer or key to China's compliance with its WTO commitments. The United States and other

WTO Members are not faced with just one or two issues requiring resolution. Rather, there are

many issues confronting the US and others in their efforts to help China observe WTO norms.

The United States can and should work cooperatively with China in those situations where China

is willing to work with the United States. But, where China is not a cooperative partner in its

willingness to continue moving toward full compliance (for example, in the area of IPR), then

the United States should take active and, in some cases, aggressive steps to encourage China to
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fulfill its obligations. The United States should employ the full range of options available in its

efforts to help or compel China to achieve full WTO compliance, including consultations and

other bilateral meetings, technical assistance, and, if necessary, dispute settlement.

The Commission may wish to consider the following in making recommendations to

Congress for promoting and improving China's WTO compliance.

3⁄4 The United States should be more aggressive in pursuing resolution of chronic

compliance problems, including giving serious consideration to filing WTO dispute

settlement cases to address the most important and pressing issues. In areas where the

evidence demonstrates that China is not even attempting to move forward to implement

its WTO commitments, and bilateral discussions or other efforts at resolution have not

succeeded, the United States should exercise the option to file a WTO dispute settlement

case. The first example of this course of action occurred on March 18, 2004, when the

United States filed the first WTO dispute settlement case against China with respect to

China's VAT on imported semiconductors.

3⁄4 The United States should change its policy of non-applicability of countervailing duty

laws to non-market economy countries such as China. If accompanied with a reasonable

explanation, Commerce has the discretion to make the change in policy itself. If

Commerce will not do so, then Congress should legislate that countervailing duty laws

apply to NMEs.

3⁄4 Improvement in China's IPR protection and enforcement will require long-term efforts

and dedication. Congress should direct the Administration to prepare a long-term IPR

action plan that seeks to maintain pressure on China to reform its IPR enforcement

system and that focuses additional technical assistance regarding IPR protection and

enforcement toward regional and local governments in China.

3⁄4 The transitional review mechanism is an important and useful multilateral forum at the

WTO for monitoring China's compliance with its WTO commitments. To date, the TRM

has not been as effective or useful in assisting China's compliance as envisioned by the

United States and other WTO Members. In part, the TRM has fallen short due to lack of

procedural specificity in the protocol and because of China's limited and strict

interpretation of its TRM obligations. The United States should continue to attempt to

make the TRM a forum for clarifying and resolving compliance problems. To the extent

possible, the United States should attempt to amend and improve the procedural rules

governing the TRM process, including requiring China to submit responses to questions

in writing and to provide such responses to Members reasonably far in advance of the

TRM meetings.
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3⁄4 In the protocol of accession, China agreed to be subject to certain special safeguard

mechanisms during a transitional period in its WTO membership. The Section 421

safeguard and the special textile safeguard were intended to help US industries suffering

market disruption due to increased Chinese imports. To date, the Administration has

granted limited relief to domestic producers from Chinese textile imports but has denied

relief in every Section 421 case in which the ITC made an affirmative finding of market

disruption. Section 421 relief was intended to be reasonably available if the statutory

criteria was met for relief. Congress should reexamine Section 421 with a view to

revising Section 421 to strictly define the rare and limited instances where the President

has discretion to deny relief. Congress should also reaffirm its strong support for

application of the special textile safeguard in appropriate cases.