This paper sets forth three arguments in relation to the regulation of Chinese state-owned enterprises (SOEs) in national foreign investment laws. First, there is a broad convergence in national foreign investment laws on how to regulate Chinese SOEs when they make cross-border investments. Second, the nature and function of SOEs in China?s socialist market economy is still poorly understood. Consequently, the broad convergence in SOE regulation in national foreign investment laws remains too crude a legal criterion in practice. Third, the complexity of Chinese SOEs in Chinese political and economic context calls for a more nuanced approach to regulate SOEs in national foreign investment laws.
The emergence of mega-regional trade agreements like the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) threatens to fragment global trade governance in fundamental ways. An important question, yet so far under-explored, is how the rising powers currently being excluded from the mega-regionals, such as China, view this new development in global economic governance. This article intends to fill this gap in the literature from a Chinese perspective. Specifically, this article addresses the following questions: why has China changed its initial suspicious attitude to a more neutral stance toward the TPP recently? What are the short-term and long-term effects of the TPP on China?s economic growth and geopolitical influence? How will China deal with a myriad of challenges posed by the TPP going forward, be it in or outside the TPP? After the analysis of a range of relevant political, economic, and legal factors, I submit that the Chinese government has adopted what I call a ?tripartite strategy? toward the TPP. What remains to be seen is whether this tripartite strategy provides the best roadmap for China?s further integration into the global economy.
With the launch of ?One Belt, One Road? Initiative, China is injecting vitality into the ancient Silk Road. While China is seen to embrace it as the centrepiece of its economic strategy, the new Silk Road Initiative, if implemented, is expected to bring forth the opportunity of economic prosperity for both China and the countries in the region. Against the backdrop of the complicated and volatile geopolitics in the vast regions covered by the initiative and the voracious needs for gigantic inputs of resources, etc., however, the operationality of the Initiative is in contrast with the grandiose discourse by the Chinese authorities. In particular, where China?s ultimate target is set to shape a new structure for global economic governance, its ability to lead vis-à-vis its targeted partners? readiness to cooperate, among others, remain to be tested.
Even though widely recognized as one of the core disciplines of international economic law, the interpretation of national treatment (?nt?) obligation has been long marked by legal indeterminacy. More recently, a series of landmark cases, including us?Clove Cigarettes, us?Tuna ii (Mexico), us?cool and ec?Seal Products, have fundamentally reshaped our collective understanding of the nt obligation in the gatt/wto system. The objective of this article is to take stock of what we have already known about the nt obligation in the wto law, identify the lingering uncertainties and discuss the options for the wto Appellate Body to bring more clarity to the nt obligation in future dispute settlements.
International standards have assumed special legal significance in the World Trade Organization (WTO) Agreement on Technical Barriers to Trade (?TBT Agreement?). This article conceptualizes international standards as global public goods and argues for applying global administrative law principles to vet international standards before they are afforded quasi-legislative status in the WTO law. We traced how the WTO Appellate Body has changed its original hands-off approach in EC ? Sardines in 2002 to a more intrusive approach in US ? Tuna II in 2012.We submit that the WTO Appellate Body?s new approach to international standards marks a distinctive pathway for the development of global administrative law in producing global public goods. The compliance with global administrative law principles set out in the TBT Committee Decision in turn provides international standardizing bodies with additional legitimacy and accountability. However, contrary to popular opinion, we submit that adoption by consensus is not a necessary condition for a standard to be recognized as an international standard in the world trading system.
One perpetual puzzle of international trade law is how to strike a proper balance between preventing trade protectionism and giving adequate policy space for states to pursue legitimate national policy goals. The purpose of this article is to demonstrate that the inherent
tension between global trade governance and national regulatory autonomy should not be viewed as static, but should be constantly assessed in light of the new WTO jurisprudence. The most
recent example is the landmark EC ? Seal Products dispute in which the Appellate Body has clarified, or more accurately reversed, some well-established interpretations of a number of key concepts in the WTO law, and set a new baseline for the global trade governance and national regulatory autonomy debate in the multilateral trading system. We further submit that any ensuing debate must take place in light of the new rough consensus on what WTO disciplines require of WTO Members after EC ? Seal Products.
Melding the power of the state with the power of capitalism, state-owned and state-controlled enterprises continue to control the commanding heights of the Chinese economy even though market-oriented reforms have led to a rapid expansion of the private sector in China. This article reflects on how China's practice of state capitalism challenges the world trading system and how WTO law, as interpreted by WTO Panels and the WTO Appellate Body (AB), addresses these challenges. The article concludes that the WTO Agreement on Subsides and Countervailing Measures (SCM Agreement) has been interpreted in such a manner that many key features of China's state capitalism could easily be challenged by its trading partners in a WTO-consistent manner. This finding has profound implications for China's domestic economic reforms, especially China's ongoing reforms of its state-owned enterprises and commercial banks.
Book review of LISA TOOHEY, COLIN B PICKER and JONATHAN GREENACRE (eds)
China in the International
Economic Order: New Directions and Changing Paradigms
, Cambridge: Cambridge University Press,
2015, pp. 344, ISBN: 9781107062016
One important issue arising from EC-Seal Products is what constitutes a technical regulation in the TBT Agreement. This article argues that the Appellate Body?s analytical approach to this issue has led to an arbitrary conclusion in EC-Seal Products. The article further examines to what extent PPMs, especially Non-product-related PPMs, are covered by the TBT Agreement. The article concludes that an important question to be answered is what special characteristics of a technical regulation distinguish it from other regulations and make it subject to more detailed obligations in the TBT Agreement.
The emergence of 'mega regionals' like the Trans-Pacific Partnership (TPP) threatens to fragment global trade governance in fundamental ways. An important, yet so far under-explored, question is how the rising powers such as China, view these new mega regionals. This article intends to fill this gap in literature from a Chinese perspective on the TPP. Specifically, this essay argues against China's joining the TPP and suggests that China actively seek an alternative model of economic integration in the Asia Pacific region.
Due to the success of the 'Go Global' policy, in recent years there has been a dramatic increase in overseas direct investment made by Chinese state-owned enterprises (SOEs). However, Chinese SOEs' overseas investment has been viewed with suspicion and several attempted acquisitions discontinued in the face of strong opposition from host countries. This article analyses the plausibility of some common fears about Chinese SOEs' overseas direct investment and evaluates critically the regulatory responses of the US, Canada, Australia and the European Union motivated by such fears. The article argues that though some fears are legitimate, they are grossly exaggerated in view of the SOE reforms in China over the past three decades. The policy implications of this finding for both host countries and China's ongoing SOE reforms are also explored.
The national treatment (NT) obligation embodied in Article III:4 of the GATT 1994 has been long marked by legal indeterminacy. Recently, the WTO Appellate Body has shed some fresh light on how the NT obligation should be interpreted in EC?Seal Products. The Appellate Body's report on EC?Seal Products and other recent developments in WTO case law have fundamentally reshaped our collective understanding of the NT obligation. The purpose of this article is to take stock of what we have known about the NT obligation in GATT Article III:4 after EC?Seal Products, as well as identifying some lingering uncertainties. This paper argues that the boundary of the NT obligation in GATT Article III:4 will be largely determined by how the Appellate Body deals with three big issues identified in this article in future disputes.
The necessity test in the GATT/WTO legal system has long been attacked on two grounds. First, the legal test formulated by the WTO Appellate Body to assess necessity has been described as ambiguous, illogical and arbitrary. Second, the WTO Appellate Body?s stringent interpretation of the necessity requirement has interfered with WTO Members? domestic choices about policy objectives. This article revisits these conventional criticisms in the light of the recent WTO case law and attempts to make three claims in relation to the necessity test in WTO law. First, we now have a much clearer understanding of the role each element of the necessity test plays, how different elements interact and how to draw a conclusion after weighing and balancing these elements. Second, the WTO Appellate Body has gradually and substantially relaxed the necessity test over the past decade. It is no longer justifiable to depict the necessity test as a straightjacket. Third, the WTO Appellate Body has successfully pushed for a broad convergence in necessity tests across various WTO Agreements, despite their textual and structural differences.
The Brazil ? Taxation and Charges panel report has rekindled a long-standing debate over the scope and meaning of the public morals exception in the GATT/WTO legal system. This article offers two criticisms of the panel report. First, the report has set an exceedingly low threshold for the identification of public morals. Second, the Panel?s hands-off approach is likely to trigger a slippery slope risk of what sorts of objectives could be properly called ?public morals?.
Science has been traditionally characterized as an objective discipline that is free of values and which leads to definitive knowledge. In the GATT/WTO system, science has been elevated as the ultimate arbiter of international trade disputes. This article intends to critically evaluate, and re-conceptualize, the role of science in distinguishing disguised trade protectionism and legitimate government regulation. Drawing insights from psychology and behavioral science, the article first sets forth two normative principles that should be followed where science is to be used as an arbiter in trade disputes. It then proceeds to examine to what extent the current WTO case law has deviated from these normative principles. The article concludes that WTO Members enjoy wide discretion to address pervasive scientific uncertainty. Nevertheless, it remains possible that a rigorous use of science will bring WTO rules into direct conflict with national democracy in some highly value-laden and politically sensitive disputes.
Following the proliferation of private standards in the global supply chain trade, it has become clear that these can have adverse effects on international commerce and world welfare in the same way that government-imposed mandatory regulations do. However, the scope of the obligation of WTO Members in relation to the regulation of private standards remains vague and open to divergent interpretations under WTO law. This article starts from the premise that the debate should move beyond the search for a reasonable interpretation of relevant WTO disciplines and instead begin to consider normative questions concerning the legitimacy and accountability of transnational private regulation in global governance and the potential role of the WTO in regulating such private authority. The article explores what justifies the role of the WTO, a multilateral intergovernmental organization, in regulating transnational private standards and how a regulatory mechanism might be designed and implemented in practice.