China-U.S. Trade Law : International Trade Lawyer & Attorney : Baker Hostetler Law Firm : Trade Remedies, Customs & Export Controls

China’s goals of international recognition during the last decade, in addition to accession to the World Trade Organization (“WTO”), include most prominently acceptance by the United States as a market economy. There have been at least two motivations: to have its creation of a market, “with Chinese characteristics,” recognized and approved around the world; and to be liberated from the trade remedy methodology tailored specifically for non-market economies. The former is more psychic; the latter is pragmatic.

Non-Market Economy Status

World trade rules are built around principles of free trade. Free trade as an ideal type refers to unimpeded private market transactions where governments, monopolies, and state enterprises do not have enough influence to distort the conduct or outcomes of private enterprise competition. The free private enterprise system assumes, as did Adam Smith, that the selfish private acts of individuals and their organizations will yield, out of their competition and interaction, a greater public good. The market, not government, defines and produces the public good. It also assumes that governments and monopolies, when regulating or controlling private transactions, distort markets and thus are harmful to the public good.

The role of government in the ideal free private enterprise system is limited, mostly to regulating anticompetitive behavior and breaking up excessively large conglomerates and monopolies that prevent free competition. Of course, such limited government is a fiction. Governments have many roles in civil society, and all impact the economy.

All governments raise revenue through taxes. They make judgments about who most can afford to pay. Despite the periodic calls in the United States for a “flat tax” imposed on everyone equally, taxes everywhere are “progressive,” graduated according to the perceptions of what can be afforded and by whom, including business enterprises as well as individuals. Taxes on transactions – sales taxes or value added taxes – are also common. The form of taxation, the extent to which taxes are graduated, and the taxpayers (corporate or individual) all express public policies favoring some over others. A core public policy in the United States favors private home ownership, which has produced special tax provisions affecting everything from bank loans to construction materials. All such government interventions and taxes distort markets in one way or another. Yet, like death, taxes are inevitable and are the most obvious form of government intervention in markets.

Governments play additional roles. Every free market system assigns governments a role in forbidding the formation and operation of anticompetitive monopolies and trusts. Governments may regulate to protect the health, safety, and welfare of citizens. Such regulations typically raise costs of production for private enterprise, and impose certain manufacturing methods and ways of doing business. Hence, despite the ideal type, governments everywhere intervene in the free market.

Corporations rhetorically champion free enterprise, but in practice they seek competitive advantages that inevitably translate into limitations on competition. Governments regulate to limit or eliminate such corporate behavior. The nature of competition is to seek an advantage and a superiority over others. Such advantages are defined by reducing the competitive abilities and positions of others. Individuals and corporations idealize competition only to the extent that competition can improve their situations, which by definition requires the degrading of the competitive positions of others. Consequently, free private enterprise systems foster competitors whose objective is always to reduce competition. Governments overseeing such systems endeavor to maximize competition, while protecting against the release into the stream of commerce of products and practices inimical to the health and safety of individuals and society.
This ideal type of free enterprise system is the theoretical antithesis of a state-controlled or command economy. In the ideal type, government intervenes only as required, reluctantly, and while trying to guarantee free competition. In a command economy, government seeks to direct all economic activity, deciding what needs to be manufactured, to whom it should be distributed, and at what price. Government extracts rents from this production and, therefore, in control of the entire economy, can raise revenues anyway it likes. Markets function only to the extent that governments permit, in any particular sector, the interaction of willing buyers and willing sellers. Mostly, demand is regulated by supply, the latter controlled entirely by the government.

The United States, since the ascension to power of Mao Tse-Tung, has treated China, dominated by state-owned enterprises and with a tax system dictated by government (rather than negotiated among competing interests), as a non-market economy. However, China, since the “opening” of Deng Xiaoping, no longer regards itself as a non-market economy. Instead, China thinks of itself as a capitalist, market economy, albeit with “Chinese characteristics.”

There are many indicia supporting China’s self-image because substantial competition has grown up in China. Capitalist goods are everywhere and are sold competitively throughout the country. There are advertisements promoting different prices for the same or comparable goods. People decide what to buy, from food to cars, such that supply does not control demand, and the government does not control supplies. Labor has become mobile, with people moving from one part of the country to another, from one kind of job to another, from one corporate entity to another making or selling the same product. Prices vary with supply and demand, not dictated by government.

There are many indicia that China remains a command economy. The government owns and controls the supply and prices of natural resources and public utilities. The government controls banks and insurance, lends money through the banks according to government policy and rates, controls the currency and its value. The most important economic sectors, such as steel production, are dominated, when not exclusively captured, by state-owned enterprises. Through the control of money and loans and prices, the government dictates the supply and demand for the most important products and services.

The global economic meltdown with the fall of Lehman Brothers in September 2008 made the United States look more like China than the other way around. The U.S. government took effective control of major banks and insurance companies, bought out one of the leading economic sectors – automobile manufacturing – and shaped subsidy programs throughout the economy designed to assure the success or survival of enterprises chosen by the government. Yet, while insisting that it is the world’s leading capitalist economy, the United States denied China’s claim to be recognized as a market economy.
 

Symbolism Of Market Recognition

China, as a matter of national pride and self-respect, has resented the American insistence that massive American subsidies and market intervention preserved a capitalist, market, free enterprise system, while identical conduct in China guaranteed that China would be considered outside the mainstream, along with Cuba and Vietnam and North Korea, as a non-market economy. The more China has insisted that the United States should recognize it as a market economy, the more the United States has resisted. Excuses have become cumulative, most prominently in the American complaint over China’s refusal to float fully the value of its currency, notwithstanding that U.S. currency did not float freely until 1971, and the United States certainly was not considered a non-market economy before then.

Recognition as a market economy has come to mean, for China, fulfillment of a promise it perceives was made in 2001 when China acceded to the WTO. Even though the WTO agreement projected recognition as a market economy by 2016, and then only upon the satisfaction of various criteria, China’s Commerce Minister now insists that the United States agreed to recognize China’s market economy status by 2010 and offers a sense of betrayal that recognition has not happened.

The Practicalities Of Market Economy Status

In only one significant respect does recognition as a market economy matter: when complaints are brought that Chinese goods are dumped in the United States, the methodology for determining whether there is dumping, and if so, how much, is different for non-market economies. This distinct methodology gives the United States Department of Commerce more discretion and flexibility to find dumping, and to inflate the dumping “margin,” the measure of how much dumping and consequently how much duty will be owed for the merchandise to be imported into the United States.

Dumping is determined in one of two ways: either a good is sold abroad for a price lower than the price at home, or the costs to produce the good exceed the price at which the good is sold abroad. When Chinese goods are subjected to this second measurement, the cost of production, the non-market economy methodology becomes critical.

Non-market economy status presumes that, in the absence of markets, there are no market prices. It is then theoretically impossible to determine the cost of production because it is impossible to determine the costs of any of the inputs. There are no market wages; no market rents; no market utilities. Raw materials have no market prices, nor do any component parts.
When the inputs are imported from a market economy, dumping analysts use the price the Chinese manufacturer has paid for those inputs. But when the inputs are domestic products, analysts assume there is no market price for them. The analysts then seek and apply “surrogate” prices – prices of the same input in a “market” economy that, supposedly, is at a similar level of development as China. Surrogate values may come from many different countries, but American official analysts have favored (for China) India, Bangladesh, Indonesia, and occasionally other countries.

The selection of surrogate values is highly contentious and is decided, in the end, by U.S. government officials. They have decided that freight costs, for example, could not be used if derived from a Chinese-flag ship. They have chosen, instead, some of the highest shipping rates in the world.

Subsidies And Market Economy Status

Until November 2006, treatment of China as a non-market economy did have advantages for China. A “subsidy” in international trade is a financial contribution from a government that is market-distorting. Where there is no market, there is nothing to distort. Therefore, until November 2006, the United States had never brought a subsidies (countervailing duty) case against China. Subsidies could not be alleged; they had to be treated as costs of production susceptible to the application of surrogate values.

It was always thought that China could not and would not be exposed to countervailing duty allegations unless and until it might be recognized as a market economy. The Chinese Government, consequently, stayed out of trade remedy disputes, as dumping is the business of business, not government. Dumping is determined by prices, and companies, not governments, set prices. Moreover, it was exceedingly difficult to address some of the “inputs” this way for a cost-of-production analysis.

The 2006 mid-term elections delivered a significant Democratic majority pressuring the Administration to get tough on China, especially as to alleged subsidies. A petition alleging subsidies to coated free sheet paper was pending. The Department of Commerce, soon after the elections, decided to initiate a countervailing duty investigation, while refusing, still, to recognize China as a market economy.

China protested the apparent anomaly – a non-market economy subjected to a countervailing duty investigation – but to no avail. Various legal issues emerged and several are still the subject of WTO proceedings initiated by China. None has been resolved by the WTO, and meanwhile the United States has found subsidies and imposed countervailing duties in 12 cases already. All of these cases were accompanied by antidumping petitions, and a cumulation of dumping and subsidies duties have been imposed in 26 cases since 2007. Petitioners complaining about unfair competition from China now routinely file simultaneously antidumping and countervailing duty petitions.

Why Non-Market Economy Status No Longer Has Practical Meaning

The decision to investigate subsidy allegations and impose countervailing duties while still treating China as a non-market economy rendered the non-market economy status practically meaningless. It is not as if, were China tomorrow to be recognized as a market economy, anything of practical value would change.

The United States has been applying surrogate values for subsidy allegations against China throughout the economy. For the allegation that China was not charging enough money for the commercial use of land in rural Shandong Province, the Department of Commerce used land values from suburban Bangkok. The Commerce Department ignored entirely expert testimony that the use of such values was nonsensical from the perspective of economics and land use.  And Commerce treated any input supplied by a state-owned enterprise as a subsidy, the value of which was to be determined by selection of a surrogate value in a market economy. 

The rationale for the application of surrogate values is based on Certain Softwood Lumber from Canada.  Even though a WTO panel found the use of such values improper in the case of Canada and a NAFTA panel found it illegal, the Commerce Department dismissed the NAFTA panel as having no precedential authority and the WTO panel as ambiguous. Beginning with coated free sheet paper, the Commerce Department has cited its own administrative determination in the softwood lumber case as the basis for its treatment of China.

The Commerce Department argues that, even though Canada is indisputably a market economy, Canadian provincial governments own so much of the forests that any price for standing timber cannot be a market price. It did not matter that nearly twenty-five percent of the standing timber sold in Quebec is private, as is more than fifteen percent in Ontario. It did not matter that the pricing scheme for public forests in Quebec was based entirely on the prices in the private forest. The Commerce Department reasoned that the public sector was so large compared to the private sector that the private sector prices were driven by the public sector and therefore could not be used. It reasoned that the residual value methodology applied by Ontario, whereby the market price of manufactured lumber required certain pricing of the raw material, could not be used because most of the natural resource was in public hands. It did not matter that the NAFTA and WTO panels disagreed, as did a number of notable experts.

China, over the course of three years, has failed to successfully challenge any of the Commerce Department surrogate value applications in U.S. courts. [confirm] Consequently, the Commerce Department has been laying a foundation of subsidy findings as “administrative practice,” upon which it can rely for virtually anything that may arise in the Chinese economy. Bank loans, even from commercial banks, can be treated as non-market rates because of the alleged dominance of state-owned banks setting the market rates; prices for inputs from private companies can be set aside as long as there are state-owned enterprises in the same business. It will be very difficult for China to prove that the state is not dominant in one sector or another, and the burden of proof will fall on China.

The United States can recognize China as a market economy and continue to apply surrogate values and non-market economy methodologies in trade remedy disputes because China has focused on the issue of market economy status instead of on the methodology the United States developed in the softwood lumber dispute with Canada. The core issue remains not the nomenclature, but the predominance of state-owned enterprises.

The Strategic And Economic Dialogue

The Strategic and Economic Dialogue in Beijing in May 2010 seemed to produce only one Chinese headline: that the United States was going to recognize China as a market economy. The expectation was variously seen as fulfillment of a promise and as an essential American concession, a Chinese victory of sorts. The United States, as it happens, did not provide such recognition, only promising to continue a discussion about it. Consequently, the United States now knows it is holding something that China values highly, and yet is not worth very much, an enviable negotiating position. China, for its part, needs to recognize how little such recognition means, and move on to more meaningful discussions.
 

       过去十年里，中国积极努力希望获得世界认可：除历经艰辛终于加入世贸组织外，还包括要求美国授予中国市场经济地位。这一努力背后有两大动力：希望“具有中国特色” 的市场经济制度得到世界认可，同时免受只针对非市场经济体的贸易补偿方法。前者出于心理因素，后者处于实际考量。

       请阅读英文全文。

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

Note: Dr. Elliot Feldman on April 15, 2010 presented the following speech at AmCham-China’s Conference of the Asia-Pacific Council of American Chambers of Commerce (APCAC).

中文请点击这里

Difficulties with China are now on Page One of The New York Times and The Washington Post almost every day. There is consensus in Washington that relations between China and the United States will get worse before they get better. There are many issues, most related only marginally, if at all, to trade. As examples, there is frustration in Washington that China does not share a western view of the nuclear threat from Iran, nor the urgency of the nuclear threat from North Korea. There is disappointment and chagrin over Copenhagen, and obvious disagreement over Taiwan and over the Dalai Lama. These issues are mostly strategic, sometimes cultural. Cooperation on them would go a long way toward calming concerns in other areas. There is no sign, however, of mutual understanding.

There are many additional issues dividing China and the United States that are economic. The most obvious is that China, as of January, held $2.4 trillion in foreign exchange reserves, of which nearly $900 billion was in U.S. Treasury bonds and securities. The reserves had grown $453 billion in 2009, and economists predict similar growth again in 2010.

No less important to the United States and other countries is the valuation of the RMB. After the end of the dollar peg in July 2005, the RMB appreciated over 20 percent against the dollar. With the global economic crisis, however, China froze the RMB and let its value relative to other world currencies drift down with the dollar. Premier Wen Jiabao dashed American hopes last month that China would permit some adjustment any time soon.

Within the U.S. administration it is said that the word “currency” is not to be spoken, but the characterization of the associated issues as “mercantilism” seems more than tolerated. Meetings between Chinese and American leadership since September 15, 2008 frequently have invoked references to “rebalancing,” the idea that Americans should save more, Chinese should spend more, and Chinese exports to the United States should decline as they find a market at home among consuming Chinese. Such rebalancing, endorsed publicly by both countries, is difficult, however, when an undervalued RMB persistently makes Chinese goods comparatively inexpensive abroad and foreign goods expensive in China.

Both countries, and as important, the governments of both countries, are preoccupied with job creation. Weaker currencies tend to keep jobs at home. Chinese intransigence about currency valuation raises doubts among Americans, however, about the sincerity of Chinese pledges to rebalance. Those doubts are shared, perhaps even more acutely, in Europe. In a form of diplomatic jiu-jitsu, Premier Wen has called the U.S. demand for currency adjustment “a type of trade protectionism,” and Commerce Minister Chen Deming has escalated the rhetoric, threatening that American action on currency would precipitate a trade war that, he insisted ominously, the United States would lose.

Many in Congress, and some in the Administration, want to make currency valuation a trade issue, which perhaps Premier Wen already has done for them by calling it one, confirmed by Minister Chen. Countervailing duty petitions now routinely allege currency valuation as an illegal subsidy (three times in 2009 alone), and many in Congress, and in the business community, want the Treasury Department to label China a currency manipulator. The U.S. Department of Commerce, however, consistently refuses to investigate the allegation, concluding each time that the elements of an export subsidy have not been pleaded sufficiently, particularly as to the subsidy law’s specificity test: the laws and regulations pertaining to valuation of the RMB, Commerce has concluded, are not specific to any industry or group of industries in China, nor is the valuation conditioned on exports.

This legal conclusion has enabled both the Bush and Obama Administrations to avoid a major confrontation with China over the RMB in trade remedy cases, while both Administrations have refused, at least so far, to acquiesce to congressional pressure. The aggressive language adopted by Premier Wen and Minister Chen on this subject, however, could change the dynamic and make it much more difficult for President Obama to hold the line. The postponement of a Treasury Department determination, an apparent trade-off for President Hu’s visit to Washington this week, may only preserve a U.S. card that could be played, in any event, only once.

While China’s exports benefit from an undervalued RMB, China insists that it is contributing to global economic and financial stability, and points to its faster recovery from global recession. China’s friends remind critics of the role of a stable Chinese currency more than a decade ago in halting an Asian financial meltdown. China is not without defenses for its conduct over currency valuation.

In view of the non-trade issues – and the internet dispute over Google is many things, including strategy, technology, human rights, but also trade -- it is arguable whether “pure” trade disputes between China and the United States, trade remedy actions regarding allegations of dumping, subsidies, safeguards, patent and trademark infringements, are all that important. The value of Chinese goods exported to the United States peaked in 2008; less than 2 percent of the value of those goods were subjected in 2009 – the year when U.S. manufacturers were most severely impacted by world trade conditions -- to trade remedy investigations. The official U.S. trade line, in every Administration, reflects such data and has had the following elements:

• The Administration is following the laws as set out by Congress, nothing more;
• There is considerable friction in every significant trade relationship;
• Such friction is normal and indicative of a healthy relationship;
• Trade disputes represent a tiny fraction of overall trade and should be considered nothing more than irritants.

Unfortunately, U.S. trading partners rarely see the disputes this way. While successive Administrations try to minimize them, another branch of the U.S. government, Congress, takes them very seriously and promotes them. Congress, and American trading partners, see trade disputes as economically, politically, even diplomatically important, while Presidents try to ignore them. President Bush, it is said, was amazed at how distressed Canadians were over the treatment of Canada’s softwood lumber exports to the United States. Yet, the trade represented between $7 and $10 billion annually, and there were many U.S. Senators signing letters, testifying at International Trade Commission hearings, and lobbying the Office of the United States Trade Representative and the Department of Commerce. Frequent representations were made by the Canadian Ambassador. For years, no Canadian prime minister failed to raise the issue with the president whenever they met. It probably should have occurred to the president that, since it was apparently important to everyone else, it just might be important.

There is a similar imbalance in trade disputes with China, and to date a similar presidential inclination to minimize them. Although I believe President Obama did what he had to do politically and legally with respect to commercial tires from China in September 2009, and that he acted with as much diplomatic sensitivity as possible within the requirements of the law, I also believe that he underestimated the Chinese reaction just as President Bush misunderstood how the U.S. treatment of softwood lumber was poisoning relations with Canada. The U.S. Department of Commerce, which answers to the President, is, and always has been, systematically deaf to complaints from foreign governments, invoking the mantra that the disputes are minor, normal, even healthy. The apparatus of the Department, meanwhile, and the biases of the laws, are organized and designed to protect the interests of U.S. industry against foreign competition. China, like Japan and Canada before, do not see trade disputes the way Presidents and the Commerce Department see them, and for China, as occasionally for other countries, there are additional, non-economic issues of national pride. Canadians, for example, were furious at the transparent American disrespect for the rule of law in the lumber litigation.

The United States tends to underestimate the Chinese Government’s sensitivity to domestic interests. The Western press has been translating this sensitivity into “hubris” or “triumphalism,” even simple “arrogance,” but whatever it might be called, Chinese concerns for domestic interests reflect a sense of national pride.

The Western press also underestimates internal Chinese debate. The voices of a harder line are heard, notwithstanding the many moderate and engaged voices among elites. Unfortunately, the same is true as to what the Chinese hear from the United States.

Most important to China has been the refusal of the United States to treat China as a market economy. Legally and financially, non-recognition enhances the ability of U.S. industry to succeed in antidumping complaints. Politically and psychologically, however, the issue is far more important. The Communist Party believes it is governing a capitalist state that, economically, should be treated like every other capitalist state. The indicia of a market economy, governed by supply and demand, contracting labor, and competition, are everywhere in China. It is decidedly not a command economy like the Soviet Union.

The United States sees something else. It sees national planning, central control, and a restricted currency. It sees dominant government banks and state-owned enterprises.

When China as a government appears in trade remedy disputes, for example, its counsel sometimes represent the principal Chinese enterprises as well as the Chinese government. This inherent conflict of interest raises doubt about the independence from the government of these enterprises. The counsel for no other foreign governments appear in U.S. proceedings simultaneously representing supposedly private enterprises. It is widely presumed that the Chinese enterprises engage the government’s counsel at the government’s direction. China and the United States are, thus, looking past each other as to China’s very identity.

In November 2006, right after congressional elections produced a Democratic majority, the Bush Administration, while refusing to recognize China as a market economy, nevertheless accepted a petition to investigate Chinese government programs alleged to confer countervailable subsidies on goods exported from China to the United States. A countervailable subsidy, until that time, had been treated in U.S. law as a market-distorting government subsidy. Inasmuch as the United States denied that China had a market, government support would have nothing to distort. The United States Department of Commerce, however, cheered on by Congress and supported by the rest of the Administration, was not deflected by this apparent anomaly. The Chinese Government would now have to answer questions sent to it by the United States Department of Commerce, and would have to receive Commerce Department auditors who would inspect government books and test the veracity of government answers, all the while being treated as a non-market economy.

This recipe for confrontation did not produce a satisfying meal for anyone. Chinese officials were insulted and often adjusted doubtfully to the diplomatic cooperation the new investigations required. U.S. Embassy personnel in Beijing and officials from Washington were not unwilling to make their dissatisfaction with China known. Moreover, U.S. officials began to accuse Chinese officials, in print, that they had not been entirely truthful or accurate in responding to American inquiries. In one published preliminary determination, the Department of Commerce alleged that, “the GOC has withheld the information requested by the Department,” and “the GOC has failed to act to the best of its ability.” The Department declared, “the GOC’s claims of non-use are incorrect as a matter of fact,” and “the GOC’s statements . . . are unreliable and are contradicted by other facts on the record.” I am not aware of comments of this type printed in the Federal Register about other governments.

The multiplying investigations have not enhanced relationships, regardless whether the cases have involved much money or little, or whether the products in dispute have been significant or trivial. The process, and the underlying premises, which the United States insisted was business as usual, have been damaging. In the slow economic recovery we all anticipate in the United States, there will be more cases, more misunderstanding, and more difficulty.

China’s worldwide exports increased from 1999 to 2008 from $195 billion to $1.4 trillion. One of the great surprises accompanying this growth is how few trade complaints, compared to the scale of the growth, that it produced. There were 21 antidumping cases brought against China worldwide in 1999 (often against the same product but in several countries). While China’s exports multiplied seven-fold, in 2008 only 52 new cases were brought against Chinese products (again, often involving the same product but in several different countries). The United States, between July 1, 2007 and June 30, 2008, became China’s leading export destination and China’s leading trade antagonist, with 18 initiated cases. During the previous decade, however, India initiated 120 antidumping cases against Chinese products while becoming China’s leading trade partner in goods; the United States, by contrast, initiated 87, barely more than the European Community, which initiated 84.

Although these numbers for formal disputes are surprisingly small under the circumstances (for the volume and variety of trade), there are at least a couple of notable trends. One is that the number of cases initiated against Chinese products has increased every year except in 2007, albeit in small increments. Another is that more cases are brought against Chinese products around the world than against the products of any other country, by far. Against no other country is so much suspicion expressed about business dealings, honest reporting, and sincere cooperation in the interests of free trade. Since accession to the WTO, China has begun to test trade remedies itself. It initiated 14 antidumping cases against the products of other countries in 2001, more than doubled that number, to 30, in 2002, and through 2008 had initiated 151 antidumping investigations against foreign products. The United States was one of its first targets (along with Japan), and is now its leading target.

When negotiating accession to the WTO, China sought concessions because of its self-characterization as a developing country, a forgiving explanation for a transition from a government-controlled economy. China graduated very quickly from this self-definition, although it still invokes it frequently. It has now initiated three different subsidies investigations, all into products from the United States. In the case against automobiles, initiated on the eve of President Obama’s visit to China last November, the application for duties endorsed by China’s Ministry of Commerce proclaimed a declining United States unfairly trading with an ascendant China. It claimed technical superiority in a pillar industry, what it called the key industry of America’s industrial revolution.

This development, I submit, is of dramatic implication and potential consequence. The United States, since 2006, routinely entertains petitions against China complaining of subsidies due to state-owned banks and state enterprises. China has responded with a complaint about the U.S. bailout of the Big 3 automobile manufacturers and the infusion of capital into U.S. banks. China alleges non-market loan guarantees and special loans to the U.S. steel industry. More jiu-jitsu: China is accusing the United States of government involvement in the economy in programs nearly identical to U.S. allegations against China, and China has begun bringing cases against the United States at the WTO, a forum in which the United States usually wins the cases it initiates, but usually loses the ones brought against it.

The United States is an historic sore loser at the WTO, in one celebrated instance taking more than five years to comply with an adverse decision. China, by contrast, promptly capitulated when the United States brought its first two complaints against it, by requesting consultations, at the WTO; now, the world will watch how the United States responds as China brings more complaints against the United States. To date, China has made a doubtful strategic choice, to appeal its trade disagreements exclusively to the WTO, never seeking recourse in U.S. courts. Between the pattern of American non-compliance at the WTO, for which there are few punitive mechanisms available and all remedies are prospective, and the decision to permit adverse administrative precedents to accumulate without legal challenge, Chinese frustration with the United States as a trading partner is likely to grow, even as the partners can hardly escape one another.

China, it seems, is responding to the United States by acting like the United States. Whatever the poetic justice, this course is perilous. China, unlike the United States, is still dominated by state-owned enterprises, does provide central direction to important segments of its economy, and is still learning how to conduct business in trade remedy disputes.

At a more policy-based level, the United States appears, at the behest of Asian countries, to be in hot pursuit of the Trans-Pacific Partnership, which looks and feels like an economic reincarnation of George Kennan’s cold war approach to the Soviet Union. China, so far, apparently has said nothing, and there is more than enough skepticism, in the United States and abroad, about the trajectory of the TPP despite American enthusiasm. China, nonetheless, cannot be pleased by an even implied encirclement, and an answer to the question of what the United States will gain from this initiative seems to be buried in unexamined assumptions.

These developments, taken together, are unnecessarily ominous. Asian countries are urging the United States to engage more in Asia because, they readily say, they are afraid of China. While China is flexing the muscles of a world power, it is still the fragile developing country it claimed to be only a few short years ago. Tensions in trade are symptomatic of other problems. They are also the essence, because trade and commerce constitute functional interaction more than anything outside armed combat. Trade disputes, it is true, are but a tiny fraction of trade, and there are fewer of them than might be justified given the clash of systems, defiance of rules on all sides, and fundamental underlying political needs, above all for jobs. But they resonate.

Governments in Beijing and in Washington both need to find more jobs for their populations. Both need to promote production and exports. The only possible compromises require consensus about what the rules should be and how they should be obeyed. Those compromises require trade policies.

Trade disputes shape trade policy. The pursuit of trade disputes is determined in U.S. law by the petitions of private enterprise that the Department of Commerce and the International Trade Commission can rarely avoid investigating. By contrast, Chinese law permits the Ministry of Commerce to keep the existence of petitions secret, and the initiation of investigations to be determined by the Ministry’s private assessment of the “public interest,” a provision that does not exist in U.S. law. Consequently, China can, and does, have a trade policy. The United States can have one only with difficulty, and at present has none. U.S. trade policy, such as it is, inherently is protectionist because it follows the protectionist inclinations of private enterprise in hard times. China’s trade policy, unfortunately, is equally or even more protectionist, and is unquestionably the product of government choice. Today, it is hard to tell the pot from the kettle because they are both black.

The United States needs a policy, and China needs a new one. Like almost every major international issue today, this one dividing the United States and China requires the two countries to work together from first principles. They need to examine together what defines and runs and regulates markets. They need to decide together how to keep markets open and free and how to assure fair treatment of foreign investments. That China is standing up to the United States at the WTO is good – it is about time someone besides the European Community and occasionally Japan or others did. It is also not so good if it means antagonism rather than accommodation.

The United States needs to understand that the lack of democracy in China does not mean government unconscious of its responsibility to its people; China needs to understand that central paralysis of American institutions does not necessarily mean American weakness. Both have to keep reminding themselves, lest every now and again they seem to forget, how much they need each other.

I want to conclude briefly with some practical suggestions about how the private sector might respond in these antagonistic times. There are things you can do to cushion the shocks and protect your interests without necessarily changing government policies. The operating assumptions here are that, on the one hand, there will be more trade disputes, and more orders imposing duties and restricting trade; and on the other hand, that business between the two countries will continue to grow.

Should you be a company exporting goods, you should be sure to monitor dumping and subsidy orders in every country where you are doing business, whether in-house or with outside counsel. Even the most sophisticated companies can run afoul of orders, facing penalties and customs duties, because they have not monitored thoroughly. Chinese companies that are exporting should examine carefully the loans they are taking from Chinese banks. They should consider whether they are receiving better-than-market terms, and whether they are exposed to allegations of benefitting from government subsidies. Exporters should learn everything they can about their foreign competition, especially regarding pricing and costs of production: careful pricing can minimize risks of dumping allegations. Such study could also lead to the acquisition of foreign companies. Ownership can reduce dramatically exposure to trade remedy actions. Exporters should cultivate relations with importers, for it is important to have allies in countries where you are doing business. And Chinese companies should make sure they are perceived as private and independent of government.

There are many practical things American companies doing business in China can do to help themselves. They can enlist in trade associations that lobby the U.S. government, beyond the U.S. Chamber of Commerce. They can participate in, or seek to create, boards or commissions to advise the government. Like Chinese companies, American companies now should be wary of better-than-market bank loans or subsidies, especially in agriculture and steel, and like Chinese companies cultivating relations with importers in the United States, American companies should cultivate relations with importers in China.

The corporate world does not control its own destiny, but it need not be tossed without recourse in a turbulent sea. Every company, and every industry, can make things better for itself and, by so doing, contribute to an overall improvement in a bilateral relationship that sorely needs improvement.
 

注：费德门博士4月15日在中国美国商会在北京举行的Asia-Pacific Council of American Chambers of Commerce (APCAC) 会议上发表以下演讲。 

《纽约时报》和《华盛顿邮报》几乎每天都在头版报道中美间问题。华盛顿各界已经达成共识：美中关系将首先恶化才会有所改善。两国间有许多问题，其中只有少数和贸易有关。例如，中国和西方世界在伊朗核威胁以及朝鲜半岛核问题上存在分歧，这让华盛顿沮丧。哥本哈根会谈亦让人失望，两国对台湾和达赖也有不同认识。这些大都是战略性议题，有时是文化差异。两国在这些问题上的合作将有助于减弱其他领域的担忧。但是，没有迹象表明两国达成共识。

      其他导致美中分歧的议题隶属于经济领域。最引人注目的是截至今年一月底中国持有2.4万亿美元外汇储备，其中9000亿美元为美国国债。中国外汇储备在2009年增长了4530亿美元，同时经济学家预计2010年增幅将于2009年持平。

      对美国和其他国家而言，人民币汇率也令人关注。当中国于2005年7月结束紧跟美元的货币政策之后，人民币币值较美元已经增长超过百分之二十。但是在全球性经济危机面前，中国决定暂时冻结人民币增值、让人民币币值和其他货币币值一样与美元一起跌落。中国总理温家宝上月宣布中国近期不会调整人民币币值，泼了美国一头冷水。

      据传“货币”一词是本届美国政府内禁止使用的词语，但是与此相关的“重商主义”的指责却被纵容。自2008年9月15日以来，美中领导人间的会谈时常引用“重新平衡”这一概念，具体而言美国应该增加储蓄，而中国应该扩大消费；同时中国对美出口应随着国内消费的增长而缩减。这一重新平衡虽然在公开场合得到两国政府的认可，但在实际操作中却很困难，因为人民币币值过低导致中国产品在海外市场价格过低、而国外产品在中国却过于昂贵。

      两国及两国政府都忙于创造就业机会。货币疲软可帮助创造国内就业机会。中国拒绝人民币升值让美国质疑中国是否真的决心重新平衡。欧洲也和美国一样怀疑中国的承诺。在外交柔道中，温家宝总理指责美国要求人民币升值是“贸易保护主义的表现”。中国商务部长陈德明使这一指控进一步升级——威胁美国如果就汇率采取行动将导致贸易战，而且将以美国的失败告终。

       众多美国议员以及美国政府内的部分人士希望把汇率问题转变成贸易议题，温总理的指责、陈部长的强化已经帮助这些美国人士实现了这一转变。反补贴申请书时常把汇率列为不正当补贴（2009年出现三次）。同时许多国会人士以及商业团体希望美国财政部把中国列为汇率操纵者。美国商务部却坚持拒绝调查这一反补贴指控，每次都得出这一出口补贴指控证据不足的结论，尤其不符合反补贴法的特定性（针对性）要求——美国商务部总结道有关人民币币值的法规都不是具体针对某一产业或是某些产业，同时币值也不仅仅和出口相关。

      这一法律结论帮助布什政府和奥巴马政府避免就人民币汇率问题和中国在贸易案中产生激烈冲突，同时两届政府都婉转拒绝了国会压力。但是温家宝总理和陈德明部长使用的强烈词句却改变了这一微妙局势，使奥巴马总统更难坚守阵线。美国财政部推迟做出决定无疑是因为胡锦涛主席本周访问美国，但只能推迟一次。

       虽然中国出口受益于币值偏低的人民币，中国却坚持这一政策有助于国际经济和货币稳定，有助于国际经济复苏。中国的朋友提醒批评家中国货币稳定在十年前为遏制亚洲经济危机的蔓延立下汗马功劳。但是现在中国却没有任何理由可以辩护自己的货币政策。

       当考虑非贸易领域议题时（互联网上关于谷歌，包括战略、科技和人权的争议，同时也涉及贸易），不仅让人产生中美间“纯”贸易纠纷是否重要的疑问。这些“纯”贸易纠纷包括倾销、补贴、保障措施、商标专利侵权。中国出口至美国的商品价值在2008抵达顶峰；在2009年面临贸易纠纷的中国商品的价值仅占出口总值的百分之二；而同一年美国生产商遭受到最严重的贸易打击。每界美国政府的贸易政策都反映这些数据，并包括以下内容：

• 政府遵循国会制定的法律，仅限于此；
• 每一重要贸易关系中都存在重大摩擦；
• 这种摩擦是正常的，证明两国关系健康；
• 贸易摩擦只占贸易总量的一小部分，因此应仅仅被视为小烦恼。

      令人遗憾的是，美国的贸易伙伴却对贸易摩擦有不同看法。当美国政府竭力减弱摩擦，另一重要权力机构——国会却非常重视并极力提升摩擦的重要性。国会和美国的贸易伙伴认为贸易摩擦具有经济、政治、乃至外交重要性，而总统却试图忽视这些重要性。据说布什总统对加拿大人对加拿大软木对美出口的沮丧程度感到惊讶。这一贸易每年的贸易量达到70至100亿美金，许多美国参议员致信并在美国国际贸易委员会听证会上作证、游说美国贸易代表办公室和美国商务部。许多年来，每一任加拿大总理与美国总统会谈时都不忘提及软木贸易。布什总统应当认识到，如果这一贸易对其他人来说都很重要，那么应当给予足够重视。

      美中贸易纠纷中也有这样的不平衡，同时总统也同样不愿缩小贸易纠纷。虽然2009年9月奥巴马总统就中国商业轮胎采取的行动是正确的政治、法律行动，同时他在法律允许的范围内充分重视其政治敏感性，我认为它低估了中国的反应就像布什总统低估了美国对加拿大对软木纠纷的反应。总统直接管辖的美国商务部一直对国外政府的抱怨置若罔闻，哼唱这些摩擦微小、正常乃至健康的高调。同时商务部的有关机构以及运用的法律却是为了在国外竞争面前保护美国产业的利益。与美国总统及商务部不同，中国和日本、加拿大一样，对贸易摩擦持不同看法。中国看到国家尊严受损，其他国家有时也这么看待贸易摩擦。例如，加拿大对美国在软木案件中公开不尊重法律表示愤怒。

      美国常常低估中国政府对国内利益的敏感程度。西方媒体把这种敏感翻译成“傲慢”或是“耀武扬威”，但是无论使用哪个形容词，中国对国内内利益的担忧都反射出民族荣誉感。

      西方媒体同时也低估了中国国内的争论。他们只听到强硬派的声音，然而中国精英层中也有缓和派和提倡加强与美对话的声音。令人遗憾的是，中国也只听到强硬派的声音。

      对中国而言，给予中国市场经济地位是最重大的事件。无论从法律还是金融角度看，拒绝给予中国市场经济地位都有助于美国产业在反倾销申诉中获胜。但从政治和精神角度着眼，这一事件有更重大的意义。中国共产党认为她领导的这一从经济学角度来看已成为资本主义经济的国家应和其他资本主义国家享受同样的地位。市场经济体的主要指标——供需主导、劳工雇佣和竞争都在中国随处可见。她和苏联不同，决不是指导性经济。

      但美国有不同看法。她看到全国性计划、中央控制、以及受限制的货币。她看到国有银行和国有企业占主导地位。

      当中国政府应诉贸易纠纷时，她聘请的律师同时代表政府和中国企业。这一做法让人怀疑这些企业是否不受政府操纵。其他国家政府聘请的美国律师决不会同时代表政府和私营企业参与应诉。外界普遍认为中国聘请政府使用的律师是受政府指导。中美再次擦肩而过。

       2006年11月，即民主党在中期选举中获胜、拥有参众两院多数席位后不久，布什政府拒绝承认中国的市场经济地位，同时又受理了一份要求对中国政府给予对美出口品不正当补贴展开调查的申请书。在此之前，美国法律视反补贴为扭曲市场的政府补助。既然美国否认中国的市场经济地位，政府补助与市场扭曲就没有任何关联。美国商务部在国会及其他政府部门的鼓动下，却执意坚持这一反常做法。中国政府现在需要回答美国商务部发布的调查问卷，同时也必需接受美国商务部对中国政府账本和调查问卷的审计，同时还被视为非市场经济国家。

      双方都对此深感不满。中国官员对这类调查需要的外交合作不是深感不满就是深感怀疑。美国使馆人员以及从华盛顿飞往北京的美国官员也毫不掩饰他们的不满。此外，美国官员开始白纸黑字地指责中国官员在回答问卷是不完全诚实或准确。在一份发表的初审裁决中，美国商务部指控“中国政府向美国商务部隐瞒信息”，“中国政府没有竭尽所能”。美国商务部声称：“中国政府声称没有使用这些项目是错误的，事实上中国政府的声明不可信而且自相矛盾。”我从未在Federal Register上看到这样评论其他政府的文字。

      不管这些调查的涉案金额大小，也不管涉案产品的重要程度，多项调查并没有改进双边关系。虽然美国坚持认为这些调查是例行公务，但是这些调查不可避免损害了双边关系。这一调查进程以及其深层含义都损害了双边关系。当美国经济缓慢复苏时，将会有更多的案件、误解和困难。

     中国的全球出口从1999年的1950亿美金上升至2008年的1.4万亿美金。令人惊讶的是，和增幅相比，贸易申诉的增幅却滞后。1999年全球共有21起针对中国的反倾销案件（常常针对同一产品但是却发生于不同国家）。2008年，当中国出口是1999年的七倍时，仅有52起针对中国产品的反倾销调查（同样，多个国家针对同一产品展开调查）。从2007年7月1日至2008年6月30日，作为中国最大的出口市场——美国仅对中国产品展开18项调查。在过去十年里，印度在成长为中国贸易伙伴的同时共对中国产品展开120起反倾销调查，而美国仅展开87起调查，稍稍高于欧盟总数84起调查。

     虽然这些正式纠纷从贸易量及贸易种类来看都令人惊讶的微弱，但是其中有两个令人瞩目的趋势。其一，针对中国产品的案件逐年上升，除2007年之外。其二，与其他国家产品相比，中国产品是全球范围内最容易面临指控的产品。中国的商业方式、诚信、以及自由贸易合作面临最多质疑。自加入世界贸易组织以来，中国开始展开贸易补助调查。2001年中国展开了14起反倾销调查，2002年展开30项调查；至2008年总计展开151项反倾销调查。美国（和日本）是第一起中国对外反倾销调查的对象，迄今是主要目标之一。

     当谈判加入世贸组织时，因为把自己定位为发展中国家的中国寻求让步，也使用了从政府控制经济转型的借口。中国很快超越了发展中国家的定位，虽然这仍引发争议。中国目前已展开三项反补贴调查，都是针对美国产品。在奥巴马总统访华前夕，也就是去年11月，中国对美国汽车展开反补贴调查，调查申请书认为下降中的美国与上升中的中国展开不公平贸易，这一看法得到中国商务部认可。申请书认为中国在这一支柱产业——美国工业革命中的关键产业占技术优势。

     鄙人认为这一进展具有重大含义和后果。自2006年以来美国不断接要求对中国国有银行和企业提供的补助展开调查的申请书。中国的回答是：一份要求对美国政府拯救三大汽车生产商及向美国银行注入资金展开反补助调查的申请书。中国同时主张美国钢铁产业收到非市场化的贷款担保和特殊但款。更多的柔道技术：中国指责美国政府对经济的干预程度和中国政府的行动几乎程度相当，中国同时也在世贸组织递交针对美国的案件。在这一法律论坛中，美国作为申诉方，通常胜诉；但作为应诉方，通常失利。

       美国在历史上是世贸组织酸溜溜的输家，在一著名案件中，美国用了五年时间在履行不利裁决。相反，中国在两个案件中迅速向美国妥协，而美国仅递交了磋商请求，案件尚未正式展开。现在，全世界都在观察美国将怎样回应中国的申诉。迄今为止，中国仅仅利用世贸组织、而不利用美国法庭的战略令人怀疑。美国惯于不履行世贸组织裁决，也没有很多的惩罚手段，而且惩罚都是针对未来的行动；同时中国不对不利的行政裁决采取法律行动。中国对美国这一贸易伙伴的沮丧情绪只会日益剧增。

      看来中国正以以其人之道，还治其人之身的方法回应美国。虽然这一做法诗意般的正义，但方向却是危险的。中国和美国不同，国有企业占主导地位，并向各经济领域提供指导性意见，同时政府在贸易纠纷中还发挥作用。

      在政策领域，美国现正积极推行“跨太平洋伙伴关系”（Trans-Pacific Partnership），这类似于冷战期间布凯南推行的针对苏联的经济遏制。中国现在还未就此发表评论，但是美国国内和海外都对此深表怀疑。中国肯定也这种遏制感到很不开心。美国能从这一政策中获得何种利益仍不可知。

      这些进展的综合意义重大。亚洲国家要求美国加强和亚洲国家的合作，因为他们害怕中国。当中国正跃跃欲试、努力成为世界霸权，她仍是一个脆弱的发展中国家。

       贸易关系进展是其它矛盾的象征。它同时也异常重要，因为商贸是继武力对抗之后最重要的工具型互动。贸易纠纷只占贸易总量的一小部分。但是它们共鸣。

       两国政府都应当创造更多本国就业机会；都需要扩大生产和出口。取得妥协的唯一方法是就法律条规以及如何遵守法律条规达成共识。这些妥协需要贸易政策。

       贸易纠纷改变贸易政策。美国法律制度中贸易纠纷产生机制是私营企业向美国商务部和美国国际贸易委员会递交申请，两大机构必须展开调查。但是中国法律允许中国商务部不公开申请信息，可根据“公众利益”调查裁定决定是否展开调查。美国法律中没有“公众利益”这一条款，因此，中国确有贸易政策。美国可以拥有贸易政策，虽有一定难度，但现在没有。但是中国的贸易政策与美国一样倾向于保护主义，甚至超过美国。五十步笑百步。

      美国需要一项政策，中国需要一项新政策。和其他任何重要国际事务一样，分化两国关系的事件需要两国共同努力。两国需要一起检验确定、操纵、规范市场的规则。两国需要一起决定如何保证市场开放、自由，公平对待外资。中国在世贸组织向美国发起挑战是一件好事，即欧盟和日本之外，应该有第三个国家这样做。但是如果这意味着敌对就不妥了。

        美国应当认识到虽然中国没有民主，但是这并不意味她会忽视对人民的责任；中国也应当认识到美国中央机构的瘫痪并不意味美国脆弱。两国都应不断提醒自己，他们多么需要对方，但她们常常忘记。

       我将以一些针对私营企业的建设性意见结束我的讲话。您们可以采取行动保护自己的利益、减弱政府行动带来的震荡，同时不改变政府政策。这里的假设是：一，将有更多贸易纠纷，并将导致更多遏制贸易的惩罚性关税；二，两国贸易将持续增长。

       如果您的公司对外出口，您应当让公司律师或是聘请的律师密切关注各国针对您公司所在产业的反补贴、反倾销令。即使是最善于经营、机构完备的公司有时也会产生疏漏，错过一些文件，因而面临高额关税和罚款。涉及出口的中国企业应当仔细检查国内银行提供的贷款。他们应当考虑他们享受的待遇是否超过市场待遇，是否会面临反补贴指控。出口商应当了解海外竞争的方方面面，尤其是定价和生产成本。合理定价可避免反倾销指控。认真研究如何并购国外公司。改变所有权可帮助减弱面临贸易行动的可能性。出口商应当加强和进口商的关系，因为盟友的作用很重要。中国公司应当维护自己私营、不受制于政府的形象。

      在中国从事商业活动的美国公司也可采取行动保护自己。加入游说美国政府、除美国商会之外的贸易协会。它们可以加入、尝试成立董事会或是委员会向政府提供意见参考。和中国企业一样，美国企业，尤其是农业和钢铁企业，应当注意优于市场待遇的贷款和补助。同时就像中国出口商应当加强和美国进口商的关系，美国企业也应进一步巩固和中国进口商的关系。

       企业不能完全控制他们的未来，但是不应将自己的资源放入大海，随波逐流。每个公司、每个产业，都可以改善自己的处境，并以此促进双边关系的发展。 
 

(翻译：朱晶）

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link