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This week we present Part Two of “Nothing Unites The United States Congress Like China (And Not In A Good Way): Treating China Like Canada (Maybe Even Worse).” It is entitled, “The Broken Promise To China.” Part One, entitled “Rewriting Subsidies Law To Fit Chinese Facts,” was posted last week.

The Broken Promise To China

Entry into the WTO a decade ago has paid off handsomely for China, enabling its trade to flourish and accelerate its economic growth and development. However, a critical element of China’s accession was acceptance of the rule of law. China was required to accept the arbitral procedures and consequences of WTO membership, but reciprocally was promised the benefits of those procedures. Not long after its accession, the United States and other countries brought cases against China. China quickly joined other countries challenging American safeguards against steel, and soon thereafter began to bring cases against the United States and other countries on its own.

Nothing could be more satisfying to proponents of the international rule of law than to persuade a country operating outside that framework for more than a half-century to change its ways and enlist in the procedures of the international community. China was quick, in the first cases brought against it, to accede. Instead of availing itself of the full and often protracted means of delaying undesirable outcomes, China promptly settled cases, acknowledging with little dispute when the complaints against it seemed justified.

It took longer for China to appreciate that generosity with the rules typically is not reciprocated in the WTO, least of all by the United States. The United States normally resists claims against it through every procedural device and interpretation possible. Perhaps the most celebrated example is the antidumping technique of “zeroing,” which the United States lost before the Appellate Body of the WTO in 2004, yet has found ways to continue the practice, in one form or another and despite more than a dozen WTO cases brought against it, since it first lost before a WTO panel a decade ago. The United States has insisted that it plays by the rules and that China does not. To the extent that China has been playing by the same rules as the United States since its accession to the WTO, it has played by the same rules differently and generally not as characterized by the United States.

The WTO is not the only forum in which China had to be persuaded to participate as a price and privilege of conducting its affairs according to the rule of law. Until November 2006, trade remedy cases against China in the United States did not technically or formally involve the Chinese Government because they were always and only antidumping cases. Antidumping allegations revolve around setting prices, which as a matter of the antidumping law is done by companies, not governments. Once the U.S. Department of Commerce began accepting countervailing duty petitions, however, the Chinese Government could not remain on the sidelines. The allegations necessarily involved government activities and programs, and even were it not to avail itself of legal rights, the Government of the People’s Republic of China would have to answer questionnaires and be involved in the investigations.

China was far more reluctant to avail itself of the judicial institutions and procedures of the United States than it had been of the WTO. For all foreign governments there is a hesitation to be a party in U.S. courts and submit sovereignty to the judgments and authority of U.S. judges. For six years, the Government of China has avoided initiating legal procedures in trade matters in U.S. courts, but with caution and reluctance it has begun to participate, conspicuously as an interested party in the GPX case.

Lawyers representing the Chinese Government in countervailing duty cases have urged the Government to participate in the domestic judicial process of the United States. The WTO is slow and its remedies, prospective only, are limited in time, scope, and character. At best, a prevailing party can impose tariffs on products of a losing party. Because disputes are over imports and exports, the merchandise subject to WTO compensation (commonly called “retaliation”) is not the merchandise subject to the dispute. Consequently, the WTO resolves disputes, when parties do not capitulate, through collateral attacks on other merchandise. Often the consumers of the prevailing country are the losers.

Domestic judicial procedures in the United States can move more quickly than the arbitral procedures at the WTO, and remedies are more generous and comprehensive. Deposits being held can be returned with interest, whereas a WTO order cannot see to the return of deposits at all. Obstacles to trade can be removed swiftly. Agencies can resist judicial orders for a long time but, in most instances, the U.S. market can reopen for subject merchandise more quickly than from decisions at the WTO because all of the procedural protections the agencies enjoy domestically they enjoy at the WTO in addition to the WTO’s own procedural obstacles for a complaining country. At the WTO there can be almost endless contention over remedies, whereas prescribed remedies in domestic law are known early in the process even though it may take a very long time to implement them.

These preferable remedies of the domestic judicial process are valid only when the process is fair and transparent and all the parties have reason to believe that they will be treated equally under the law. In general, U.S. judicial proceedings live up to this promise and, in the GPX case, did so for China.

The promise to China of reward and fair treatment from playing by the rules is being broken and, ironically, it is China standing accused of a disregard for the rule of law. According to the Ranking Member of the House Ways and Means Committee, Sander Levin (D-Michigan), “China is tilting the field of competition by not playing by the rules and this bill restores a key instrument of our nation to hold China accountable.” The Ranking Member of the Trade Subcommittee, Jim McDermott (D-Washington), added to the theme, “China has been breaking international trade rules . . . Now our own courts have naively weighed in . . .” Presumably, then, China naively trusted in the U.S. judicial system. Trade Subcommittee Chairman Kevin Brady (R-Texas) asserted that the legislation “provides a WTO-consistent tool to offset these market-distorting subsidies.” Except that the legislation is not WTO-consistent and the alleged subsidies, according to the United States, have no market to distort.
China challenged the United States at the WTO and won. It joined a suit in U.S. courts and won. Congress then stepped in and, as the White House trumpeted the result, “This legislation overturns that [Court of Appeals] decision,” even though it does not overturn the decision as to the parties in the case. So much for playing by the rules.

Next: Lessons For China From Canada

未能坚守的承诺

        加入世贸组织这一重大决策十多年来给中国带来丰厚回报，贸易激增、经济腾飞。加入世贸组织的重要组成部分是接受法治。作为世贸组织一员，中国的职责之一是接受裁决程序和结果，但同时也享受利益。中国加入世贸组织后不久，美国等国就利用世贸组织争端解决机制递交针对中国的案件。

看到先前游离于世界法律体系之外长达半个世纪的国家，改变做法、加入世界体系，没有这更能让积极推广世界法制的有识之士更欣慰了。当面临第一起世贸案件时，中国迅速妥协、承认指控合法，放弃利用漫长的世贸组织争端解决机制推延不利结果的产生。

一段时间之后中国才意识到自己的慷慨之举不可能得到回报，尤其是美国的回报。美国一般充分利用每一环节抵制针对自己的指控。最著名的恐怕就是“零合法”案了，2004年世贸组织上诉机构判美国违法。十年来，美国置十多个世贸组织案件判决而不顾，依然通过各种途径沿用这一反倾销调查方法。但美国声称自己履行世贸章程，而中国没有。

不仅在世贸组织，中国在其他法律舞台上也为履行法治而付出代价。2006年11月之前，美国针对中国展开的贸易救济案件并不正式涉及中国政府，因为当时只有反倾销调查。反倾销指控围绕价格操纵，因此仅针对企业。当美国商务部开始接受反补贴调查申请时，中国政府再也不能袖手旁观了。反补贴调查针对政府行为及项目，中国政府必须答复美国发布的调查问卷、参与调查。

比较参与世贸争端解决机制，中国更不愿参与美国国内司法程序。其他国家政府也都不愿成为美国法庭前的原被告，放弃主权、让美国法官评判其政策。中国政府六年里一直回避在美国法庭开展贸易诉讼，但逐渐开始小心翼翼、犹豫地参与，成为GPX案中的利害关系方。

代表中国参与反补贴调查的律师一直敦促中国政府参与美国国内司法程序。世贸机制缓慢、且其救济举措只针对未来，时间、规模及特征都极其有限。最理想的结果是胜诉方可向败诉方征收额外关税。由于进出口商品的差异，最终被征收WTO惩罚性关税的商品并非最初的、纠纷产品。因此，WTO机制通过双方联手攻击其他产品解决纠纷，胜诉方的消费者成为受害者。

与世贸机制相比，美国国内司法程序进展更快，救济措施更慷慨大方、更广泛。交纳的惩罚性关税可带息返还，但是世贸裁决无法返还关税。且美国国内司法程序还可更快消除贸易壁垒。美国政府机构可长时间抵制司法裁决，但是该产品市场重新开放的速度将远远超过利用世贸机制解决贸易纠纷的速度，因为政府机构仅享受美国司法程序保护，无法再利用世贸机制提供的程序壁垒。在世贸机制下，双方可反复就救济争执不休，但是一开始就可预见美国国内司法程序，即使这一程序非常漫长。

只有当美国国内司法程序公平透明、双方都相信法律面前人人平等时，它的优越性才能充分体现。总体而言，美国司法实现了它的承诺，GPX案裁决有利于中国。

知法守法将带来回报的承诺没有实现，更讽刺的是中国却面临不依法行事的指控。众议院筹款委员会副主席、民主党人Sander Levin 批评：“中国凭借不守法增强自己的竞争力，这一法案旨在恢复我国的重要工具、敦促中国负责。贸易分会副主席华盛顿州民主党人Jim McDermott 附和道：“中国至今仍违背国际贸易规则，现在我们的法庭却发挥负面作用……”中国天真地信任美国司法体系。贸易分会主席德克萨斯州共和党人Kevin Brady 认为这一法案提供了“符合世贸章程、消除扰乱市场补贴的工具。”可是，这一法案违背了世贸规则，而根据美国自相矛盾的指责：受指控的补贴没有市场可扰乱。