General Issue
Vol. I, No. 1
(Spring '09)

How would China fare in its first World Trade Organization (WTO) dispute? That question has been of interest to international trade law practitioners and scholars ever since China acceded to the WTO on 11 December 2001, and indeed even before then, in the years leading up to its accession. The answer now exists. China lost, and lost rather thoroughly, in the 2009 Auto Parts case concerning the imposition of 25 percent charge on imported auto parts by China. However, its loss is a lesson to China, and indeed all WTO Members, about important GATT principles, and indeed about the Golden Rule. Further, for China, and the world, the Auto Parts litigation leads to broader and deeper questions about the nature and extent of economic and political reforms.

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After a brief discussion of the facts leading to the dispute and the principles of international trade law applicable, the article examines the Panel and Appellate Body rulings and China’s arguments. The author concludes by making three comments: First, China can take heart from its small victory in proving it did not violate the promises it made when acceding to the WTO. Second, the dispute serves as an important lesson for China on the Golden Rule of international trade. Third, the dispute plays only a small role in the bigger scheme concerning the grip on political power held by the Chinese Communist Party in China.

International intellectual property (IP) protection is at the heart of controversies over the impact of economic interests on social or environmental concerns. Some see IP rights as unduly encroaching upon human rights and societal interests, others argue for stronger enforcement and additional exclusivity to incentivize new innovations and creations. Underlying these debates is the perception that international IP treaties set out minimum standards of protection - which presumably allow for additional protection with only the sky being the limit. This article challenges this view and explores the idea of maximum standards or ceilings within the existing body of international IP law. It looks at the relation between IP treaties and subsequent agreements or national laws which offer stronger protection. In particular, within the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), an important qualification may serve as a door opener for ceilings: While additional IP protection may not go beyond mandatory limits within TRIPS, the qualification not to “contravene” TRIPS is unlikely to safeguard TRIPS flexibilities against TRIPS-plus norms. The article further identifies and examines the rationales for maximum standards in international IP protection as: (1) Legal security and predictability about the boundaries of protection; (2) the global protection of users’ rights; and (3) the free movement of goods, services and information. Examples of mandatory limits in the existing IP treaties and in ongoing initiatives can implement these. However, most of the relevant treaty norms are optional. The article concludes with some observations on the need for more comprehensive and precise maximum standards.

With the advent of the World Trade Organization (WTO) in 1995, the international trading system faced a new challenge: reinventing its mandate under the light of the sustainable development challenges confronting the global community in the twenty-first century. This challenge has emerged central to the identity of the WTO, since the organization is no longer simply about removing obstacles to trade, like its predecessor – the GATT, 1947. Instead, the WTO is facing the loaded question of how far it will go in scrutinizing the exercise of governmental authority of Members, in regard to internal regulatory issues that relate to trade. Facing this question has been far from easy, especially in connection with disputes concerning health, safety and environmental (HSE) measures, since HSE-related disputes touch upon core environmental and human rights issues. The WTO’s Appellate Body has approached the tensions that surface in the adjudication of these disputes by engaging in a process of dialogue among the various legal regimes that bear on HSE measures. This process of normative dialogue and interpretation has allowed the WTO to overcome the GATT’s isolation by situating WTO law within the broader public international law universe. Normative dialogue has thus fundamentally transformed the evolving WTO law concerning HSE measures. This article explores the contours of this proposition, with a view to assessing the degree to which WTO law secures the quantum of policy space that governments need to realize human rights and protection of the environment.

This work examines the US Department of Commerce’s (DOC’s) new policy of applying countervailing duty (CVD) law to imports from nonmarket economies (NMEs). Since 2007, the DOC has applied CVDs to several imports from the People’s Republic of China (China). The DOC has long considered China an NME for the purposes of antidumping (AD) duties. The DOC uses third country surrogate values in its AD calculation for products from NMEs. The DOC currently makes no adjustments to its AD calculation when applying both CVDs and AD duties to products from NMEs. The legality of the DOC’s new policy has not been challenged in the US court system. However, it is probably permissible under US law. The strongest argument for finding the policy illegal under US law is that Congress did not intend, in enacting the relevant AD and CVD statutes, to allow the DOC to impose CVDs on NMEs. The stronger argument, however, is that it is unclear what Congress intended. Because the DOC’s interpretation is reasonable, it is a permissible interpretation of the statute. After an analysis of the legality of the policy under US domestic law, this work seeks to assess the validity of the policy under WTO law. China has already requested a panel hearing at the WTO to resolve the matter. The case will be heard in early July 2009. For the sake of fairness and to comply with international obligations, this work argues that the Congress should amend US CVD and AD laws so that they simply level the playing field for domestic producers rather than punishing exporters from NMEs.

Public international law does not envisage a single source of law; nor does it contemplate a single supreme law-creating body. Conflict between various norms, whatever be their nature, is therefore an inevitability. Such conflicts are one of the many causes that affect the ability of the legal system to maintain stability and accountability. Resolving such conflicts is essential to ensure that any system does not fall under its own weight. The importance of resolving conflicts is amplified in the context of the public international law regime, which consists of a number of sub-systems, thereby resulting in a higher probability of conflicts.

Equally important to the issue of resolving conflict is identifying when the solution is to be applied. After all, what good is any “ultimate answer” without identifying the “ultimate question”! In other words, one must first identify the existence of a conflict to resolve it. Very few publicists of international repute have, however, dealt with this issue, in particular, in sufficient substantive detail. Despite the limited number of opinions, there is, unfortunately, no consensus on this topic. The present comment portrays the author’s view on this issue. In this comment, the question has been analyzed with a very simple policy objective: avoiding fragmentation of international law. The author’s views are presented by way of critically examining the opinion of Joost Pauwelyn, a noted scholar in this field, who has most recently dealt with this issue in a comprehensive manner. Moulded into this crtique are three hypothetical scenarios that would allow the reader to grasp the significance of the question.