3. China’s Member Status in WTO Dispute Settlement Practices

See Xiao (2010).

See The WTO Secretariat (1999), p. 223.

See The WTO Secretariat (1999), p. 223.

11 of the 12 GATT 1994 subsidiary agreements contain provisions for recognition of general interests and special attention to developing countries, except in the Agreement on Rules of Origin.

See GATS Article V.3, Article XIX.2.

See Agreement on Agriculture Article 6, Article 9, Article 12.

See Agreement on TBT Article 12.4.

The decision provides developing country Members with mediation by the Director General and a shortened panel process.

See DSU Article 3.12, 8.10.

See Agreement on Implementation of Article VII of the GATT 1994 Annex 3 provision 3 and 4.

See Chen (2007).

See Huang (2000).

The GATT 1994 interprets the two concepts referred to in Article (a). First, “the economies of which can only support low standards of living”, which is interpreted to mean that “the CONTRACTING PARTIES shall take into consideration the normal position of that economy and shall not base their determination on exceptional circumstances such as those which may result from the temporary existence of exceptionally favourable conditions for the staple export product or products of such contracting party”. The second is “in the early stages of development”, stating that “the phrase “in the early stages of development” is not meant to apply only to contracting parties which have just started their economic development, but also to contracting parties the economies of which are undergoing a process of industrialization to correct an excessive dependence on primary production”.

See Huang (2000).

See Zhang (2000).

See WTO Secretariat (1995), pp. 1041–1042.

See Zhang (2002).

Both the OECD and the World Bank advocate “gross national product per capita” as an indicator to distinguish countries and regions at different economic levels, but the exact amount they advocate varies.

Yusuf (1982).

See Onyejekwe (1993).

See Zhang (1992).

See WTO Secretariat (1993), p. 310.

See Articles (i) and (ii) of the Decision on Measures in Favour of the Least Developed Countries.

See WTO Secretariat (1993), pp. 10–11.

Export competitiveness of a product of a developing country member if its exports have reached at least 3.25% share of world trade in that product for two consecutive calendar years.

Typical provisions, such as GATT 1994 Article XXXVII.1, which states: “the developed contracting parties shall to the fullest extent possible—that is, except when compelling reasons, which may include legal reasons, make it impossible—give effect to the following provisions: (a) accord high priority to the reduction and elimination of barriers to products currently or potentially of particular export interest to less-developed contracting parties, including customs duties and other restrictions which differentiate unreasonably between such products in their primary and in their processed forms;* (b) refrain from introducing, or increasing the incidence of, customs duties or non-tariff import barriers on products currently or potentially of particular export interest to less-developed contracting parties; and (c)(i) refrain from imposing new fiscal measures, and (ii) in any adjustments of fiscal policy accord high priority to the reduction and elimination of fiscal measures, which would hamper, or which hamper, significantly the growth of consumption of primary products, in raw or processed form, wholly or mainly produced in the territories of less-developed contracting parties, and which are applied specifically to those products”.

See Article 20.3 of the Agreement on Implementation of Article VII of the GATT 1994, Articles 66, 67 of the TRIPS Agreement.

See Article 8 of Annex B to the SPS Agreement, Article 10.5 of the TBT Agreement.

As provided in Article 5.2 of TRIMs Agreement: “each Member shall eliminate all TRIMs which are notified under paragraph 1 within 2 years of the date of entry into force of the WTO Agreement in the case of a developed country Member, within 5 years in the case of a developing country Member, and within 7 years in the case of a least-developed country Member”.

Of course, the absence of reference does not mean the absolute exclusion of the special subject content. In the individual articles of WTO law, although the title of the special subject is omitted, the content contains provisions for a certain kind of special subject according to the meaning or context. For example, Article 6.4, subparagraph (a), of the Agreement on Agriculture indicates “product-specific domestic support which would otherwise be required to be included in a Member’s calculation of its Current AMS where such support does not exceed 5% of that Member’s total value of production”; and (b) provides that “For developing country Members, the de minimis percentage under this paragraph shall be 10%”. Thus, the term “members” in subparagraph (a) of the article clearly refers to the developed country members as opposed to the developing country members. The tabulation of the members of the developed countries in this article is therefore not exhaustive, but is so rare that it does not affect the overall analysis and conclusion here.

Europe (18 countries): Luxembourg, Norway, Switzerland, Ireland, Denmark, Iceland, Sweden, Britain, Austria, Netherlands, Finland, Belgium, France, Germany, Italy, Spain, Greece, Portugal; America (2 countries): the United States, Canada; Asia (2 countries): Japan, Singapore; Oceania (2 countries): Australia, New Zealand.

Cyprus, Bahamas, Slovenia, Israel, South Korea, Malta, Hungary, Czech Republic.

See WTO Secretariat (1993), p. 151.

The article provides that: “it is recognized that, in the case of imports from a country which has a complete or substantially complete monopoly of its trade and where all domestic prices are fixed by the State, special difficulties may exist in determining price comparability for the purposes of paragraph 1, and in such cases importing contracting parties may find it necessary to take into account the possibility that a strict comparison with domestic prices in such a country may not always be appropriate”.

See Zhao (2000), p. 206.

On 6 March 1950, the Taiwan authorities, through their “Permanent Representative to the United Nations”, in the name of the “Republic of China”, notified the Secretary-General of the United Nations of their decision to withdraw from GATT.

See Qin (2003).

Commitments on rules within the scope of the MTAs, Commitments on “WTO-plus” obligations, and Commitments on rules that result in “WTO-minus” disciplines and rights. See Qin (2006).

See Qin (2006).

See Charnovitz (2008a), pp. 14–15. www.​ssrn.​com/​abstractid=​957651.

Charnovitz (2008a), p. 20. www.​ssrn.​com/​abstractid=​957651.

Charnovitz (2008a), p. 15. www.​ssrn.​com/​abstractid=​957651.

See Charnovitz (2008b, pp 16–18. www.​ssrn.​com/​abstractid=​957651).

And others such as GATT ad. Art. XXVIII, para. 1(4); GATS Art. XIX:1; TRIPS Art. 7, etc.

Unless otherwise stated, the data and information in this chapter on WTO disputes have been collated from data and information available on the official WTO website as of 31 December 2022. See https://​www.​wto.​org/​english/​tratop_​e/​dispu_​e/​dispu_​agreements_​index_​e.​htm?​id=​A30, last visited: 8 May 2022. It should be noted that in the EU—Footwear (China) (DS405), although paragraph 151 of the WPR was invoked by China, it is not included in this table because: (1) it is not incorporated by paragraph 342 and becomes an integral part of China’s Protocol, and (2) the issue of price comparability in determining subsidies and dumping is already covered in Paragraph 15 of China’s Protocol.

PAC refers to China’s Accession Protocol.

See Qin (2003).

Liu (2015a).

WTO, Technical Note on the Accession Process, WT/ACC/10/Rev.3, 28 November 2005, pp. 42–43.

See Protocol for the Accession of Mongolia to the Marrakesh Agreement Establishing the World Trade Organization, WT/ACC/MNG/11, 25 July 1996; Protocol on the Accession of the People’s Republic of China, WT/L/432, 23 November 2001; Protocol of Accession of the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, WT/L/433, 23 November 2001.

It should be noted that this table lists the incorporated non-standard provisions through paragraph 1.2 of China’s Accession Protocol and Paragraph 342 of the WPR of China, which have direct correspondence with the non-standard provisions directly stipulated in the Protocol, not all of them.

PCA Part I Paragraph 4 (Special Trade Arrangements), Paragraph 17 (Reservations by WTO Members), and Paragraph 18 (Transitional Review Mechanism).

The WPR of China, Paragraph 256.

WPR of China, Paragraph 286.

WPR of Cambodia, Paragraph 99.

WPRs of the 17 acceding members (Laos, Latvia, Estonia, Georgia, Croatia, Lithuania, Armenia, Cambodia, Saudi Arabia, Viet Nam, Ukraine, Cape Verde, Montenegro, Samoa, Russia, Vanuatu, Tajikistan) all provide for 均对 “过境贸易安排” 做了明确约定.

See Yu et al. (2015).

Ibid.

PAC Part I Paragraph 2(D)1, the WPR of China Paragraph 78.

PAC Part I Paragraph 2(D)1, the WPR of China Paragraph 79.

PAC Part I Paragraph 2(D)2, the WPR of China Paragraph 79.

The 11 countries are: Bulgaria, Panama, Latvia, Estonia, Georgia, Croatia, Saudi Arabia, Viet Nam, Ukraine, Montenegro, and Russia.

Protocol of Accession of Panama (WPR Paragraph 71).

Protocol of Accession of Croatia (WPR Paragraph 101).

Protocol of Accession of Viet Nam (WPR Paragraph 260), ferrous and non-ferrous scrap metal.

Protocol of Accession of Russian Federation (WPR Paragraph 638), products described Part V of the Schedule of Concessions and Commitments on Goods of the Russian Federation be exempt from export duties in excess of those set-forth and provided therein.

Protocol of Accession of Saudi Arabia (WPR Paragraph 184), no export duties on iron and steel scrap.

Protocol of Accession of Bulgaria (WPR Paragraph 39).

Protocol of Accession of Estonia (WPR Paragraph 80).

Protocol of Accession of Georgia (WPR Paragraph 82).

Protocol of Accession of Latvia (WPR Paragraph 69).

Protocol of Accession of Ukraine (WPR Paragraph 240).

Protocol of Accession of Montenegro (WPR Paragraph 132).

See Nielsen (2011), p. 19.

United Nations (2008), p. 26.

Framework Convention on Climate Change, Conference of the Parties Twenty-first session Paris, December 2015, FCCC/CP/2015/L.9/Rev.1. Available at https://​unfccc.​int/​sites/​default/​files/​resource/​docs/​2015/​cop21/​chi/​l09r01c.​pdf.

Framework Convention on Climate Change, Conference of the Parties Twenty-first session Paris, December 2015, FCCC/CP/2015/L.9/Rev.1., para. 2 of article 2, Available at https://​unfccc.​int/​sites/​default/​files/​resource/​docs/​2015/​cop21/​chi/​l09r01c.​pdf.

See article 31, 31bis of TRIPS Agreement and its Annex.

See the texts of the 1945 UN Charter, the 1946 Draft Declaration on the Rights and Duties of States, and the 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.

WPR of Bulgaria, Paragraph. 4.

See Bop/117, 1971, p. 7.

See the U.S. proposal for a self-declared mechanism for developing countries dated January 16, 2019 (WT/GC/W/757), and the EU proposal for modernizing WTO reform. Available at http://​trade.​ec.​europa.​eu/​doclib/​docs/​2018/​september/​tradoc_​157331.​pdf.

Final Act and Report of the United Nations Conference on Trade and Development, United Nations publication, Sales No. 64.II.B.11.

The author searched the electronic versions of the texts of the WTO agreements in force since September 2017 (including the original texts of the agreements, amendments to the TRIPS Agreement, the Trade Facilitation Agreement that came into force in February 2017, amendments adopted in July 2017 to adjust the frequency of consideration by members under the TPRM from 2019, and the amended version of the Agreement on Government Procurement). The number of references to developed, developing, least developed, and less developed countries is 173, 308, 134, and 3, respectively.

Available at https://​www.​un.​org/​development/​desa/​dpad/​wp-content/​uploads/​sites/​45/​2018CDPhandbook.​pdf, p. 2.

Available at https://​www.​un.​org/​development/​desa/​dpad/​wp-content/​uploads/​sites/​45/​2018CDPhandbook.​pdf, p. 1.

The Committee for Development Policy, formerly known as the Committee for Development Planning (CDP), was established in 1965 and renamed in 1998 as a subsidiary body of the Economic and Social Council. The role of the Committee for Development Policy is to provide information and independent advice to the Economic and Social Council on emerging cross-sector development issues and international development cooperation, with a focus on medium- and long-term aspects. The Committee is responsible for reviewing LDC status and monitoring their progress after graduation. See Resolutions and Decisions of The Economic and Social Council, E/1998/98. Available at https://​www.​un.​org/​development/​desa/​dpad/​wp-content/​uploads/​sites/​45/​PDFs/​The_​Committee_​for_​Development_​Policy/​e_​1998_​46.​pdf, pp. 74–76.

The criteria for graduation from the LDCs published by the agency in 2018 are: $1230 or more in national income per capita (GNI per capita) and $2460 or more in net income (Income-only) for income; 66 or more in human assets index for assets; and 32 or less in EVI.

See https://​www.​un.​org/​development/​desa/​dpad/​least-developed-country-category for details.

See The World by Income and Region, available at http://​datatopics.​worldbank.​org/​world-development-indicators/​the-world-by-income-and-region.​html.

Available at https://​www.​imf.​org/​external/​pubs/​ft/​weo/​2015/​02/​weodata/​groups.​htm#cc.

United Nations (2018), p. 6.

United Nations (2018), p. 4.

For example, the “graduation” period was extended in 2005 for Maldives and in 2009 for Samoa due to the tsunami. See General Assembly resolutions 60/33, 64/295 and 70/78.

In its negotiations with the U.S., China proposed three principles for the “contracting party restoration” negotiations, namely, restoration of GATT contracting party status, tariff concessions as an “entry fee” to the GATT, and insistence on developing country status. At the same time, China made two requests to the U.S.: first, it requested the U.S. to grant China unconditional MFN treatment, and second, it requested the U.S. to grant China a Generalized System of Preferences (GSP) treatment. These three principles and two demands constitute China’s five-point position on the resumption of contracting relations. Of these, the three principles are universally applicable to all GATT contracting parties in negotiations, and the two demands are specific to the United States. See Shi (2011), p. 149.

See Shi (2011), pp. 34–36.

See Shi (2011), p. 149.

See Shi (2011), pp. 161, 170–183.

See Shi (2011), p. 185.

Paragraphs 8 and 9 of the Report of the Working Party on China’s Accession: Para.8. The representative of China stated that although important achievements have been made in its economic development, China was still a developing country and therefore should have the right to enjoy all the differential and more favorable treatment accorded to developing country Members pursuant to the WTO Agreement. Para.9. Some members of the Working Party indicated that because of the significant size, rapid growth and transitional nature of the Chinese economy, a pragmatic approach should be taken in determining China’s need for recourse to transitional periods and other special provisions in the WTO Agreement available to developing country WTO members. Each agreement and China’s situation should be carefully considered and specifically addressed. In this regard, it was stressed that this pragmatic approach would be tailored to fit the specific cases of China’s accession in a few areas, which were reflected in the relevant provisions set forth in China’s Draft Protocol and Working Party Report. Noting the preceding statements, Members reiterated that all commitments taken by China in her accession process were solely those of China and would prejudice neither existing rights and obligations of Members under the WTO Agreement nor on-going and future WTO negotiations and any other process of accession. While noting the pragmatic approach taken in China’s case in a few areas, Members also recognized the importance of differential and more favorable treatment for developing countries embodied in the WTO Agreement.

See Qin (2006).

BISD 23S/137.

BISD 27S/69.

BISD 20S/236.

Available at http://​www.​wto.​org/​english/​tratop_​e/​dispu_​e/​72dolquo.​pdf. Accessed on May 6, 2010.

BISD, 14th, p. 162.

See Huang (2000), p. 76.

DS10: Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes.

DS387, DS388, and DS390 cases were filed by the United States, Mexico, and Guatemala, respectively, and were all filed against China for subsidies, loans, and other incentives.

DS372, DS373, DS378 series of cases were filed by the EC, the U.S., and Canada, respectively, against China’s measures affecting financial information services and foreign financial information providers.

In fact, the measures involved in the series of cases also do not comply with the provisions of China’s administrative licensing law that only organizations with public affairs management functions can be authorized. Article 13 of the Administrative License Law, which came into force on 1 July 2004, provides that organizations authorized by law or regulation to manage public affairs may, within the scope of their statutory authorization, implement administrative licenses in their own name.

See Leïla (2012).

See Communication of the permanent mission of the People’s Republic of China, improving the special and differential provisions in the dispute settlement understanding. TN/DS/W/29, 22 January 2003.

See WTO website for a listing of cases applying the provisions of the DSU Agreement. Available at https://​www.​wto.​org/​english/​tratop_​e/​dispu_​e/​dispu_​agreements_​index_​e.​htm.

See Panel Report, China—Publications and Audiovisual Products, WT/DS363/R, adopted 12 August 2009, para. 7.743.

See Appellate Body Report, China—Publications and Audiovisual Products, WT/DS363/AB/R, adopted 21 December 2009, para. 214.

See Appellate Body Report, China—Publications and Audiovisual Products, WT/DS363/AB/R, adopted 21 December 2009, paras. 229–230.

See Appellate Body Report, China—Publications and Audiovisual Products, WT/DS363/AB/R, adopted 21 December 2009, paras. 233,415(a).

For example, DS414, DS427, DS440.

Western economists made plans for command economies based on traditional neoclassical economic theories, hoping to establish a Western-style system of rules of the game on a large scale, rapidly and comprehensively, thus leading to the improvement of the market mechanism and economic prosperity of these countries. This strategy of rapid privatization, marketization, and liberalization, based on neoclassical theories, is known as the “Washington Consensus” of economic transformation. It emphasizes fiscal discipline and reform of public sector resource allocation, liberalization of the financial and trade sectors, government deregulation of exchange rates, interest rates, and foreign investment, and the privatization of state-owned industries and protection of private property rights. The thrust of the Washington Consensus is still liberalization, privatization and marketization, which is a typical economic liberalism consensus. See Hong (2016), p. 234.

WT/GC/W/757, 16 January 2019.

See An undifferentiated WTO: self-declared development status risks institutional irrelevance, communication from the United States, document of the General Council, WTO, WT/GC General Council, WTO, WT/GC/W/757, 16 January 2019; WTO Modernization Introduction to Future EU Proposals, 18 September 2018. Available at http://​trade.​ec.​europa.​eu/​doclib/​docs/​2018/​september/​tradoc_​157331.​pdf.

European Commission, WTO-EU’s Proposals on WTO Modernisation, Brussels, 5 July 2018, WK 8329/2018 INIT.

Presidential Memoranda: Memorandum on Reforming Developing Country Status in the WTO.

Federal Register (2020) Designations of Developing and Least-Developed Countries Under the Countervailing Duty Law. https://​www.​federalregister.​gov/​documents/​2020/​02/​10/​2020-02524/​designations-of-developing-and-least-developed-countries-under-the-countervailing-duty-law. Accessed 10 April 2020.

Of course, some developing countries chose to compromise. In March 2019, Brazil pledged to give up its SDT as a developing country Member of the WTO in order to successfully join the OECD; in September 2019, Singapore pledged not to seek SDT from the WTO in the ongoing and future negotiations of the agreement after the USTR issued a memorandum; in October 2019, the South Korean government decided to “relinquish” its “developing country status” in the WTO and would no longer insist on “preferential” treatments under WTO rules in future trade negotiations.

Available at http://​datatopics.​worldbank.​org/​world-development-indicators/​stories/​the-classification-of-countries-by-income.​html.

Hoogmartens (2004), p. 16.

See Van Dijck and Faber (1996). Cited from Hoogmartens (2004), p. 15.

See John (2001), pp. 355–369.

See John (2001), pp. 362–363.

See Zhao (2000), pp. 206–207.

See Patterson (1986). Kennedy KC (1987) Soviet accession to GATT. World Trade Law 21; and Dixon E, Why the Soviet Union applied for GATT membership. World Economy 10:228. All cited in Jackson (2001), p. 358.

See Jackson (2001), p. 358.

See Barton et al. (2013), pp. 163–167.

For example, in the 1980 U.S. anti-dumping case against China, the USITC found that China’s menthol production price was not determined by the market and used the price of menthol exported from Paraguay to the U.S. as the normal value of Chinese products. In this regard, Chinese exporters can only remedy exports through domestic law. See Bureau of Import and Export Fair Trade, Ministry of Foreign Trade and Economic Cooperation (2002), p. 4.

Some scholars refer to the rules under which acceding members are treated less favorably than ordinary members as “weak rules” and the rules under which they are obligated more than ordinary members as “super rules”. See Zhang (2011), p. 292.

Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100 to 418, 102 st at.1107 (codified as amendments throughout Title 19 of the United States Code).

Customs Regulation Section 153.5 (b). 19 C.F.R. § 153.5(b) (1973). See Gary N. Horlick and Shannon S. Shuman, Non-market Economy Trade and U.S. Antidumping/Countervailing Duty Laws, 18 The International Lawyer 807, 808. 809 (1984). See also Chen (2006).

See Wang (2010), pp. 21–22.

Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, 102 st at.1107 (codified as amendment s throughout Tit le 19 of the United States Code).

Lant z, op. cit. pp. 1006–1007.

See Chen (2006).

Jia (2017).

See Article 3(2)(c) of Council Regulation (EEC) No. 459/68, as amended by Article 1 of Council Regulation (EEC) No. 1681/79.

Council Regulation (EC) No 905/98 of 27 April 1998 amending Regulation (EC) No 384/96 on protection against dumped imports from countries not members of The European Community.

Council Regulation (EC) No 905/98 of 27 April 1998 amending Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Community. The European Community. Also see Council Regulation (EC) No. 1225/2009.

REGULATION (EU) 2017/2321 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2017 amending Regulation (EU) 2016/1036 on protection against dumped imports from countries not members of the European Union and Regulation (EU) 2016/1037 on protection against subsidized imports from countries not members of the European Union, OJ L338, 19 December 2017, pp. 1–2.

He (2018), p. 8.

For example, Barbara Barone, for example, argues that China is still a non-market economy, while many Chinese scholars argue that China has basically become a market economy. See Barone (2015), Pei (2015).

See Zhang (2011), p. 417.

See Zhang and Xiao (2016).

See Yang (2005); Liu (2007); Li and Liu (2012); Li (2011).

Gao H, If you don’t believe in the 2012 myth, do you believe in the 2016 myth? http://​wtoandchina.​Blogspot.​com. Accessed 19 July 2012.

Peng (2015).

Graafsma and Kwrnashova (2014).

Nicely (2014).

See O’Connor B Market-economy status for China is not automatic. http://​www.​Voxeu.​Org/​article/​china-market-economy.

See Poser (2014).

Yu (2013).

Nicely (2014).

Graafsma and Kwrnashova (2014).

Zuo and Lin (2017).

O’Connor B Market-economy status for China is not automatic. http://​www.​Voxeu.​Org/​article/​china-market-economy.

Miranda (2014a).

Yu (2013).

Bhattacharya (2017); Nedumpara and Subramanian (2018).

Miranda (2014a).

Ruessmann and Beck (2014).

Gatta (2014).

See Ren (2014a). See also Tietje and Nowrot (2011).

Zhang et al. (2013).

Zhao and Liu (2006), p. 6.

Adopted by the UN International Law Commission in 2006. When the scope of a unilateral obligation is in doubt, the obligation must be strictly interpreted. See Jennings and Watts (2010).

Wen JB “I hope the EU will recognize China’s full market economy status”. http://​finance.​sina.​com.​cn/​roll/​20110914/​122410477712.​shtml. Accessed 21 Dec 2015.

See Li (2014); see also Price et al. (2015).

Ministry of Foreign Affairs (2016).

Liu (2015b).

Liu and Du (2015).

Liu (2014).

See Xiao (2020).

See “Ministry of Commerce spokesman on the European Parliament’s adoption of amendments to the new methodology for anti-Dumping investigations”, http://​www.​mofcom.​gov.​cn/​article/​ae/​ag/​201711/​20171102671544.​shtml. Accessed on March 5, 2018. Given that the new EU law is not fundamentally different from the original “alternative country approach” under “non-market economy” conditions, and given that the DS516 Chinese petition already contains similar measures after the EU, the new EU law does not change the content of the parties’ disputes. Moreover, for the purpose of this paper, the “U.S. interpretation” is not only for the specific measures in this case, but also for the general legal principle of WTO anti-dumping price comparability method, so the introduction of the new EU law does not affect the argument of this paper.

See https://​www.​wto.​org/​english/​tratop_​e/​dispu_​e/​cases_​e/​ds516_​e.​htm. Accessed 21 December 2018.

Including Article VI of GATT 1994, Paragraph 15 of the Protocol on China’s Accession, Note 2 to Ad Article 6.1 of GATT, documents on the accession of members to GATT, and texts of other relevant documents.

The first paragraph of the “U.S. Interpretation” argues that the WTO rules are formed and operate from the perception of members that “‘non-market prices or costs’ may be distorted or unreasonable and therefore not suitable for price comparability. In this short argument, it is emphasized twice that “GATT Contracting Parties and WTO Members have always recognized ......”. See EU—Measures Related to Price Comparison Methodologies (DS516), Legal Interpretation, paragraph 1.1.

Article attributes, referring to the nature of the positioning of these provisions. For example, the authorizing nature of Article VI.1 of the GATT 1994; the exceptionality and exclusivity of Note 2; the nature of subsequent practice of Poland and other accessions to the GATT Agreement, etc. The discussion of the attributes of each provision will be developed in turn below.

For example, Article 38 of the Statute of the International Court of Justice identifies the “rules expressly recognized by the contesting states” as the primary source of international law to be applied in adjudication. According to its provisions: “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states”.

The formal sources of the law are the opposite of the nonformal sources of the law. The former are those sources that can be derived from explicit textual forms embodied in authoritative legal documents; the latter are those sources of legal significance and materials worthy of consideration that have not yet been authoritatively or at least explicitly articulated and embodied in formal legal documents. See Bodenheimer E (1940) Jurisprudence: legal philosophy and legal method. Chinese Edition: Bodenheimer (2004), pp. 429–430.

See Article 2.2 of the Anti-Dumping Agreement for details.

Article 1 is entitled “Principles”, specifies that: “An anti-dumping measure shall be applied only under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigations initiated and conducted in accordance with the provisions of this Agreement. The following provisions govern the application of Article VI of GATT 1994 in so far as action is taken under anti-dumping legislation or regulations”.

See Article 31.1 of the VCLT.

See Trebilcock and Howse (1996), p. 112, Bierwagen (1990). Quoted from Zhao (2000), pp. 272–273.

See Jackson (1997), p. 274. See Zhao (2000), pp. 274–276.

See Report by the secretariat of the United Nations Conference on Trade and Development, Trade and Development Report, 1994, UNCTAD/TDR/14, p. 135.

Zhao (2000), p. 269.

Including the Antidumping Code reached in the Kennedy Round and the Tokyo Round respectively.

See United Nations Conference on Trade and Development (1994), p. 73; See Zhao (2000), pp. 282–285.

The United States cites the Oxford English Dictionary for this argument and the Appellate Body decision in EC Hormones as an argument, in addition to the word meaning. In interpreting Article 3 of the SPS Agreement, the Appellate Body in EC Holmes distinguished between “based on” international standards and “conform to” international standards: conform to international standards is a requirement that See Appellate Body Report, EC—Hormones, WT/DS26/AB/R, paras. 163–166.

See Garner (2009), p. 708.

See Condon (2014).

Article XX of GATT 1994 explicitly provides for the legality of nine sub-measures under the condition that the preamble is satisfied; the SPS Agreement, as an interpretative rule to Article XX(b) of GATT 1994, is similarly legally authorized to be exempted from the relevant GATT rules, and its Article 2.4 provides that “Sanitary or phytosanitary measures which conform to the relevant provisions of this Agreement shall be presumed to be in accordance with the obligations of the Members under the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX(b)”.

“General Explanatory Note on Annex 1A Explanatory Note” to GATT 1994: In the event of conflict between a provision of the General Agreement on Tariffs and Trade 1994 and a provision of another agreement in Annex 1A to the Agreement Establishing the World Trade Organization (referred to in the agreements in Annex 1A as the “WTO Agreement”), the provision of the other agreement shall prevail to the extent of the conflict.

In the WTO dispute settlement, the application of Article XX of GATT 1994 is based on the test of a particular subparagraph followed by the preamble.

Note 1 provides that: “Hidden dumping by associated houses (that is, the sale by an importer at a price below that corresponding to the price invoiced by an exporter with whom the importer is associated, and also below the price in the exporting country) constitutes a form of price dumping with respect to which the margin of dumping may be calculated on the basis of the price at which the goods are resold by the importer”.

See Miranda (2014b).

This accession practice is also explained differently in the U.S. Commentary, which is discussed in detail below.

Such claims were made by the United States as one of the complaining parties in China—Raw Materials and China—Rare Earths, and was supported by the panel and Appellate Body decisions. See Panel Reports, China—Raw Materials, WT/DS394/R, WT/DS395/R, WT/DS398/R. Adopted 5 July 2011, paras. 7.115–7.160; Appellate Body Reports, China—Raw Materials, WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R. Adopted 30 January 2012, paras. 27.5; Appellate Body Reports, China—Raw Materials, WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R. adopted 30 January 2012, paras. 279–307; Panel Report, China—Rare Earths, WT/DS431/R, WT/DS432/R, WT/DS433/R, adopted 26 March 2014. paras. 7.81–7.89; Appellate Body Reports, China—Rare Earths, WT/DS431/AB/R, WT/DS432/AB/R, WT/DS433/AB/R, adopted 7 August 2014. paras. 5.52–5.74.

See Hu (2017), Zhang (2017), Liu and Zhang (2017), Yu and Guan (2016), Zhang and Xiao (2016).

According to the predominant “three-element theory” of jurisprudence “assumptions” and “deals” are the basic elements of legal norms. The former refers to the part of the premise, condition, or situation to which the norm applies; the latter explains what people are specifically required to do or prohibited from doing. See Zhang (2018), p. 116.

See Ren (2014b).

See Zhang (2017).

Article 31 of the VCLT “General rule of interpretation “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; and (c) any relevant rules of international law applicable in the relations between the parties.

See Waldock (1966), pp. 98–99.

See Appellate Body Report, Japan—Alcoholic Beverages II, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 4 October 1996, at 13.

See Appellate Body Report, Chile—Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/AB/R. adopted 23 September 2002, para. 214.

After the establishment of the WTO and before China’s accession, similar countries include Bulgaria (1996), Mongolia (1997), Kyrgyzstan (1998), Latvia (1999), Estonia (1999) Albania (2000), Croatia (2000), Georgia (2000), Lithuania (2001) and Moldova (2001) ten countries joined successively; after China’s accession, Vietnam (2007) and Russia (2012) joined.

For example, regarding the ten countries that acceded to the WTO before China’s accession, none of their Protocols of Accession made special provisions on the comparability of dumping prices, and among them, only Latvia was recognized by the domestic legislation of the United States as market economy status, There were only five countries such as Bulgaria that were recognized by the EU legislation. After China’s accession to the WTO, Russia’s Protocol of Accession also had no such special provisions.

The main difference in content between the two is the number of years for which the “surrogate country approach” applies, 15 years for China and 12 years for Vietnam.

This article provides: “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable”.

See Zhou and Peng (2018).