Whether China’s State-Owned Commercial Banks Constitute “Public Bodies” within the Meaning of Article 1.1 (a) (1) of the Agreement on Subsidies and Countervailing Measures: Analysis of US—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China

Yi Liao

Faculty of Law, University of Toronto, Toronto, Canada.

DOI: 10.4236/blr.2013.44025                

Abstract

US—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China is the initial WTO dispute in which China claims that US-countervailing duties on certain products from China are inconsistent with the obligations of the United States under the Agreement on Subsidies and Countervailing Measures (“SCM Agreement”). In this dispute, the specific meaning of “public bodies” within Article 1.1 (a) (1) of the SCM Agreement and the question of whether China’s state-owned commercial banks (“SOCB”) constitute “public bodies” are the heart of the matter. This thesis will analyze these issues by examining the reports of the Panel and the Appellate Body. In particular, the thesis will argue that the theory of the governmental function advanced by China is much more persuasive than that of governmental control in terms of defining “public bodies”. Although China’s SOCBs have gone through several stages of reforms, the majority ownership of them has remained in the hands of the Chinese government. However, SOCBs’ policy-oriented nature has been largely marginalized, and currently they only perform subsidiary governmental functions. In this regard, the conclusion this thesis will attempt to reach is that the WTO system needs to give developing countries like China more policy flexibility in order to upgrade their international trade participation to the level required and followed by developed countries. During the process, developing countries should also make the best use of their latent comparative advantage and the effects of globalization.

Keywords

Public Bodies; State-Owned Commercial Banks

Conflicts of Interest

The authors declare no conflicts of interest.

References

[1]	Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, 15 April 1994, 1868 U.N.T.S. 201 (entered into force 1 January 1995).
[2]	Agreement on Subsidies and Countervailing Measures, 15 April 1994, 1867 U.N.T.S 14 (entered into force 1 January 1995).
[3]	And the winner is. (2012). The Economist, 402, 17. http://www.economist.com/node/21541404
[4]	Appellate Body Report, Brazil—Export Financing Programme for Aircraft, WT/DS46/AB/R, adopted 20 August 1999, DSR 1999: III.
[5]	Appellate Body Report, Canada—Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, adopted 20 August 1999, DSR 1999: III.
[6]	Appellate Body Report, Japan—Countervailing Duties on Dynamic Random Access Memories from Korea, WT/DS336/AB/R and Corr.1, adopted 17 December 2007, DSR 2007: VII.
[7]	Appellate Body Report, United States—Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R and Corr.1, adopted 19 December 2002.
[8]	Appellate Body Report, United States—Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea, WT/DS296/AB/R, adopted 20 July 2005, DSR 2005: XVI, 8131.
[9]	Appellate Body Report, United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS379/AB/R, adopted 25 March 2011.
[10]	Appellate Body Report, United States—Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, adopted 17 February 2004, DSR 2004: II, 571.
[11]	Barboza, D. (2013). A conversation with Carl Walter. The New York Times.
[12]	Brown, L. (1993). Shorter Oxford English dictionary (Vols. I, p. 1123 & II, p. 2404). Oxford: Clarendon Press.
[13]	Chanceller, D. (2011). China’s fiscal legerdemain. The Wall Street Journal. http://online.wsj.com/article/SB10001424052748704132204576190864046071514.html
[14]	Chen, Z. Y. (2012). The corporate governance reform of state-owned commercial banks in China. Ph.D. Thesis, Leicester: University of Leicester.
[15]	China Development Bank. Mission Statement. http://www.cdb.com.cn/english/Column.asp?ColumnId=99
[16]	China Development Bank. (n.d.). http://www.cdb.com.cn/english/index.asp
[17]	China’s economy and the WTO: All change. (2011). The Economist, 401, 45.
[18]	China: What will happen in the world’s largest nation. Journal of Banking, 33, 113.
[19]	Claessens, S. (2002). Corporate governance and development. Washington, DC: Global Corporate Forum.
[20]	Company Law of the People’s Republic of China (revised in 2005), adopted at the Fifth Session of the Standing Committee of the Eighth National People’s Congress on December 29, 1993. Revised for the first time on December 25, 1999 in accordance with the Decision of the Thirteenth Session of the Standing Committee of the Ninth People’s Congress on Amending the Company Law of the People’s Republic of China. Revised for the second time on August 28, 2004 in accordance with the Decision of the 11th Session of the Standing Committee of the 10th National People’s Congress of the People’s Republic of China on Amending the Company Law of the People’s Republic of China. Revised for the third time at the 18th Session of the 10th National People’s Congress of the People’s Republic of China on October 27, 2005.
[21]	Dami Rodrik’s “the globalization paradox”. (2011). The Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2011/03/11/AR2011031106730.html
[22]	Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work of its Fifty-third Session, UN GAOR, 56th Sess, Supp No 10, p. 43, UN Doc A/56/10 (2001).
[23]	Duan, K. Y. (2003). Deep reform on SOCBs and research on financial innovation after entry into the WTO. Chengdu: Southwestern University of Finance and Economic Press.
[24]	Frienden, J. A. (2006). To have and have not—Book review of making globalization work. The New York Times.
[25]	General Agreement on Tariffs and Trade (1994), 15 April 1994, 1867 U.N.T.S 187, 33 I.L.M. 1153 (entered into force 15 January 1995).
[26]	Hope, N., & Hu, F. (2006). Reforming China’s banking system: How much can foreign strategic investment help. In J. Aziz, S. Dunaway, & E. Prasad (Eds.), China and India: Learning from each other, reforms and policies for sustained growth. Washington, DC: IMF Multimedia Services Division.
[27]	Huang, K. C. (2009). Perform of China’s state owned commercial bank a success. Nomura Journal of Capital Markets, 1, 1.
[28]	Industrial & Commercial Bank. ICBC business review. http://www.icbc.com.cn/ICBC/About%20Us/Brief%20Introduction/brief%20introduction%20to%20icbc.htm
[29]	Industrial & Commercial Bank of China. (n.d.). http://www.icbc.com.cn/icbc/sy/default.htm
[30]	Issues and Decision Memorandum for the Final Affirmative Countervailing Duty Determination: Laminated Woven Sacks from the People’s Republic of China, Exhibit CHI-3.
[31]	Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Coated Free Sheet from the People’s Republic of China, Exhibit CHI-93.
[32]	Law of the People’s Republic of China on Commercial Banks, adopted at the 13th Meeting of the Standing Committee of the Eighth National People’s Congress on May 10, 1995, promulgated by Order No. 47 of the President of the People’s Republic of China on May 10, 1995, and amended in accordance with the Decision of the Standing Committee of the National People’s Congress on Amending the Law of the People’s Republic of China on Commercial Banks adopted at the Sixth Meeting of the Standing Committee of the Tenth National People’s Congress on December 27, 2003.
[33]	Lin, Y. F. (2012). The quest for prosperity: How developing economics can take off. Princeton, NJ: Princeton University Press.
[34]	Li, T. (2009). How to deal with the conflict between the system of board of directors and the company Law. Journal of Fujian College of Political Science & Law, 2, 62.
[35]	Li, Y., & Zhang, Y. M. (2005). The reform of state-owned commercial banks in China. Workshop on reform and development of banking system in China.
[36]	Mattoo, A., & Carzaniga, A. (2003). Moving people to deliver service. Washington, DC: World Bank Publications. http://dx.doi.org/10.1596/0-8213-5406-X
[37]	Mixed bag. (2012). The Economist, 402, 14.
[38]	New masters of the Universe: State’ capitalism’s global reach. (2012). The Economist, 402, 6.
[39]	Outlaw, J. (2012). Globalization in China. Asian & the Pacific Zone. http://www.bauerglobalstudies.org/archives/globalization-in-china
[40]	Panel Report, Brazil—Export Financing Programme for Aircraft, WT/DS46/R, adopted 20 August 1999, as modified by Appellate Body Report WT/DS46/AB/R, DSR 1999: III, 1221.
[41]	Panel Report, Canada—Measures Affecting The Export of Civilian Aircraft, WT/DS70/R, adopted 20 August 1999, upheld by Appellate Body Report WT/DS70/AB/R, DSR 1999: IV.
[42]	Panel Report, China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by Appellate Body Report WT/DS363/AB/R, DSR 2010: II, 261.
[43]	Panel Report, Korea—Measures Affecting Trade in Commercial Vessels, WT/DS273/R, adopted 11 April 2005, DSR 2005: VII.
[44]	Panel Report, United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS379/R, adopted 25 March 2011, as modified by Appellate Body Report WT/DS379/AB/R.
[45]	Panel Report, United States—Measures Treating Exports Restraints as Subsidies, WT/DS194/R and Corr.2, adopted 23 August 2001, DSR 2001: XI, 5767.
[46]	Plender, J. (2011). The weakness beneath China’s rise—Book review of red capitalism. Financial Times. http://www.ft.com/intl/cms/s/2/55019600-2caa-11e0-83bd-00144feab49a.html#axzz2ckMj9RyC
[47]	Prasad, K. (2006). Corporate governance. New Delhi: Prentice-Hall of India Pvt.
[48]	Protocol on the Accession of the People’s Republic of China, Doha 10 November 2001.
[49]	Ramanadham, V. V. (1993). Privatization: A global perspective. Oxford: Routledge. http://dx.doi.org/10.4324/9780203417294
[50]	Responsibility of States for Internationally Wrongful Acts. Text adopted by the ILC at its fifty-third session, in 2001, and submitted to the United Nations General Assembly as a part of the ILC’s report covering the work of that session. The General Assembly “[took] note of the articles on responsibility of States for internationally wrongful acts” for the first time in General Assembly Resolution 56/83 of 12 December 2001, corrected by document A/56/49 (Vol. I) / Corr.4, and subsequently in Resolution 59/35 of 2 December 2004, Resolution 62/61 of 6 December 2007, and Resolution 65/19 of 6 December 2010. The ILC’s report, which also contains commentaries on the draft articles, appears in the Yearbook of the International Law Commission, 2001, Vol. II, Part Two.
[51]	Rodríguez-Clare, A. (2007). Review of one economics, many recipes: Globalization, institutions, and economic growth. http://emlab.berkeley.edu/~arodeml/Papers/Review%20of%20Rodrik's%20One%20Economics,% 20Many%20Recipes.pdf
[52]	Saffin, K. (2011). Why global markets, states, and democracy can’t coexist—Book review of the globalization paradox. The London School of Economic and Political Science. http://blogs.lse.ac.uk/politicsandpolicy/archives/10284
[53]	Song, D. L., & Liang, Y. Q. (2006). The role and functions of the government in the joint-stock reform of SOCBs in China. Journal of the Staff and Worker’s University, 4, 43.
[54]	Stevenson, A. (2007). Shorter Oxford English dictionary (6th ed., Vol. 2). Oxford: Oxford University Press.
[55]	Stiglitz, J. E. (2007). Making globalization work. New York: W.W. Norton & Company.
[56]	Supervision and Administration of State-Owned Assets of Enterprises Tentative Regulations, promulgated by the State Council on, and effective as of, 27 May 2003.
[57]	Taaffe, P. (2011). Book review: Halfway house—Red capitalism: The fragile financial foundation of China’s extraordinary rise. Socialism Today. http://www.socialistalternative.org/news/article11.php?id=1636
[58]	Tam, O. K. (2008). Emerging best governance practices in commercial financial institutions: Corporate governance in China’s bank. http://www.apec.org.au/docs/08_ALA_RT/S7_Tam.pdf
[59]	The rise of state capitalism. (2012). The Economist. http://www.economist.com/node/21543160
[60]	The visible hands. (2012). The Economist, 402, 3.
[61]	To strength the public-service functions of SOCBs. (2009). Xinhua News. http://news.xinhuanet.com/fortune/2009-08/06/content_11834938.htm
[62]	Trebilcock, M. J., Howse, R., & Eliason, A. (2012). The regulation of international trade. Oxford: Routledge.
[63]	United Nations. (1969). Vienna Convention on the Law of Treaties (Vol. 1155, p. 331). 23 May 1969, United Nations, Treaty Series. http://www.refworld.org/docid/3ae6b3a10.html
[64]	Usa, I. (2009). China customs, trade regulations and procedures handbook. Washington, DC: International Business Publications.
[65]	Usa, I. (2008). China government and business contacts handbook. Washington, DC: International Business Publications.
[66]	Walter, C. E., & Howie, F. J. T. (2010). Red capitalism: The fragile financial foundation of China’s extraordinary rise. Singapore: Wiley.
[67]	Wennstrom, J. (2006). Making globalization work. Economic Affairs, 27, 106.
[68]	Wen, W. (2010). Ownership structure and bank performance in China: New evidence in China. http://idem.uab.es/treballs%20recerca/wen%20wen.pdf
[69]	Zhou, Z. F., & Li, J. W. (2002). In search of approaches to improving corporate governance in China’s state-owned commercial banks. International Lawyer, 36, 215.