|
中国对外贸易、投资法，国际法 2001年12月1日以来，中国一直是世界贸易组织（WTO）成员，自那时以来，它致力于逐步实施法律的规范化。加入世贸组织，中国被列为新的世界贸易组织成员，并给予五年实施广泛的贸易自由化政策和法律规定，这有利于中国的承诺的履行。 2006年12月11日，中国加入世贸后五年，中国成为全球贸易体系中占有重要地位的成员，其贸易伙伴，包括美国和欧盟，已经持有中国政府坚持WTO义务的全部责任。 越来越多的证据表明，中国在其世贸组织中义务严重，并承诺开放其经济，参与全球贸易。例如，在其2008年报告中显示，以美国国会对中国实施世贸组织的义务，美国贸易代表指出，“双边接触产生的，2008年比2007年业绩更弱，主要是因为中国的领导层表示越来越愿意与美国进行建设性合作。 Chinese Foreign Trade And Investment Law International Law Essay China has been a member of the World Trade Organization (WTO) since 11 December 2001. Since then, it has been gradually implementing legal changes that it committed to upon accession. On accession, China was classed as a new WTO member and given five years to implement a wide range of trade liberalization policies and legislative provisions facilitating China’s commitments. As of 11 December 2006, five years after its accession, China became a full and mature member of the global trading system and its trading partners, including the United States and the European Union, have been holding China fully accountable for its adherence to WTO obligations. There has been growing evidence that China is taking its WTO obligations seriously, and is committed to opening its economy and participating in global trade. For example, in its 2008 report to the United States Congress on China’s implementation of WTO obligations, the US Trade Representative noted, ‘Bilateral engagement produced more near-term results in 2008 than in 2007, largely because China’s leadership displayed an increased willingness to work constructively and cooperatively with the United States. In fact, the two sides were able to achieve incremental but important progress in numerous areas.’ [1] This suggests that as China’s participation in the WTO order continues, China is increasingly trusting of the process, the costs and benefits that it poses for China’s economic development, and the intentions of its international trading partners. The evidence suggests therefore that China is interested in forming lasting trading relationships and increasingly adhering to WTO standards. China is engaging in serious dialogues with its trading partners in order to resolve areas of trade difficulty, and is also complying with enforcement judgments of the WTO dispute resolution bodies. Despite such signals however, there are still significant areas of outstanding concern with regard to China’s legal implementation of its obligations. [2] China took on a number of specific commitments when it entered the WTO system. These can be broken down into categories primarily relating to trade in goods, trade in services, the legal basis of its trading and investment regime, and safeguards between China and its trading partners, particularly with regard to the transition period immediately following China’s accession. [3] The principle legal changes in China include a new non-discriminatory environment in which all companies and individuals, regardless of whether or not they are registered in China, will be accorded rights to trade that are no less favourable than those for Chinese enterprises. China will also eliminate dual pricing practices whereby goods produced in China are given different prices when exported than when sold domestically. China would cease using price controls as a means of protecting domestic industries. The entirety of the WTO agreement would be uniformly and effectively implemented in China through the use of legislative amendment and enactment, providing a firm legal basis for the protection of WTO terms. Within three years of accession, all firms would be permitted to import and export goods freely and trade them throughout the Chinese customs territory, except for limited exceptions. China was also required to eliminate export subsidies on agricultural products. Certain goods categories including cereals, tobacco, fuels, and minerals, and certain distribution and transportation services would remain state monopolies under the initial agreement. However, in other significant areas, such as intellectual property, China would implement the Trade-related aspects of Intellectual Property Rights (TRIPs) agreement immediately. In exchange for acceptance of specified state monopolies in certain goods categories, WTO members would be required to eliminate their own prohibitions and quantitative restrictions on Chinese imports. Given the enormous manufacturing capacity of China, and its ability to produce goods for export at very low prices, Transitional Safeguard Mechanisms were also created, whereby WTO members are given up to twelve years to gradually introduce Chinese imports freely, so as to give domestic manufacturers a chance to adjust to the heightened competition. [4] Favourable assessments of China’s performance during the five-year transition period accept that in general, China has complied with its commitments. Stewart et al (2007), reporting for the Trade Lawyers Advisory Group, concluded, ‘China worked hard over the transition period to reform its legal and regulatory system and has in fact complied with many of its WTO obligations. Tariff reduction commitments was one of the more important obligations assumed by China in joining the WTO and China has generally implemented its tariff reductions in a timely manner. So also, China has revised many of its laws and regulations and modified its trae practices to make them consistent with obligations under the WTO agreements.’ [5] This report therefore will focus more on specific areas of concern, and will not seek to suggest that China is going against the spirit of its WTO commitments. All WTO members have areas of concern and continued challenges with implementing fully the ramifications of WTO commitments. These are normal and it is suggested here that the fact that China’s trading partners have issues with China’s implementation of its obligations is more a reflection of the scale and complexity of the agreement, rather than a commentary on China’s willingness to comply. It is also suggested here that a cooperative and productive approach to trade disputes, demonstrating a willingness to resolve issues and maintain productive relationships, is more important than perfect initial implementation in the long term, as it will ensure that integration continues and cooperation increases over time. The significant efforts that China has made towards its bilateral relationships have also been fruitful, ensuring that numerous potential disputes have been avoided and that implementation continues as effectively as possible. That is not to say that serious implementation and compliance concerns have not been voiced by China’s trading partners before the WTO. There have been a number of important areas in which WTO members have expressed concern as to the pace and manner in which China has implemented its commitments. These have been concentrated in the areas of intellectual property rights and the TRIPs agreement, industrial policy such as technical standards and export and import restrictions, the continuation of prohibited subsidies, the discriminatory application of sales taxes, restrictive control of trade and distribution rights, restrictive capitalization requirements in the banking and insurance sector in excess of international norms, restrictions in the construction and engineering sector, restrictions on express courier operations, and a variety of other sector specific complaints. [6] While China’s trading partners refrained from invoking dispute resolution processes against China during the initial implementation phase, as of 2007, eight enforcement actions had been initiated, one each by Canada, the European Union and Mexico, and five by the United States. These marked the beginning of the international trading community’s acceptance of China as a full member of the global trading order, and a responsible partner that could be held to its trading commitments in the same way that other trading nations have been holding each other accountable in the years since the WTO has been established. The most recent figures show that China has been the complainant in seven WTO disputes, has been the respondent in eighteen disputes, and a third party in seventy-one disputes. The eighteen disputes that have been brought against China since WTO membership are set out briefly in table 1 below. As can be seen, the resolution pattern of these disputes has been largely satisfactory, with disputes being settled in consultation, or progressing in a timely manner through the dispute resolution process, and panel decisions being implemented and notified as required under WTO rules. A similarly satisfactory pattern can be seen in the disputes that have been initiated by China against its trading partners, shown in table 2. Again it can be seen that the pattern of resolution has been progressing in accordance with the provisions of the WTO system. In addition to these disputes that have seen the initiation of dispute resolution proceedings, a number of important consultations are underway to resolve potential disputes. Further areas of non-compliance by China have been also been identified as posing possible future disputes. One of the significant concerns of China’s trading partners has related not to a specific product or trade practice, but to the management by China of its floating exchange rate policy. It has been estimated that China’s currency is undervalued by up to forty percent, and this acts effectively as an export subsidy since it reduces the cost of Chinese exports to the extent of the undervaluation. [9] China’s trading partners have raised their concern over the issue of currency manipulation, and proposals are in place in a number of jurisdictions considering the possibility of treating currency misalignment as a financial contribution triggering countervailing subsidies under domestic protection regimes. [10] Another challenge that is raised generally regarding China’s compliance with WTO obligations relates to the use of anti-dumping safeguards against China. Under WTO rules, trading partners are permitted to impose duties on products that are being sold at lower than their true cost of production. However, because China is a classed as a non-market economy by many of its partners, special methods must be developed to ascertain what the true cost of a Chinese product should be. In one action brought against China by the United States in relation to the selling of lined paper at below actual cost, China sought to have itself reclassified as a market economy, and avoid the particular costing methods applied by the United States in that case. The United States refused to reclassify China for the purpose of cost calculations in that case. Under the terms of China’s accession agreement, trading partners are permitted to classify China as a non-market economy for a period of fifteen years following its accession. With regard to intellectual property rights, it has been shown that China continues to maintain grossly inadequate enforcement mechanisms for the protection of foreign intellectual property (IP) rights. There are numerous indications that infringements of intellectual property rights are increasing in China as the economy continues to integrate, and the Chinese government has demonstrated an unwillingness to amend its criminal code in response to new needs to protect IP. [11] With regard to industrial policy China continues to maintain policies that have the effect of erecting barriers to foreign manufacturers and companies while providing benefits and assistance to Chinese industry. [12] This includes for example, passing regulations on auto parts that include specific local content requirements in breach of WTO rules; passing national standards relating to a number of high technology products and sectors that increase costs for foreign companies and make it easier for domestic companies to compete at an advantage. It has been argued that many of these national standard will persuade foreign companies to abandon or sublicense the Chinese market, or transfer their technology to Chinese companies unwillingly, as a means of gaining the expertise necessary to comply with Chinese regulations; state management of the steel industry; export restrictions on raw materials; difficulties with relation to the imposition of national 3G standards; and prohibited direct and indirect subsidization of an array of Chinese industries. With regard to trading and distribution rights, there are a number of market sectors that continue to remain extremely restrictive for foreign goods, such as the distribution and trading rules in relation to books, periodicals and audio visual products. Direct selling regulations also remain extremely restrictive on the operations of foreign sellers. [13] In the agriculture market, despite China becoming an increasingly important global importer of agricultural products, selective intervention by government regulatory authorities continue to cause delays and shipment stoppages. Quality and scientific standards also remain in place that have been challenged on the ground of lacking scientific or health rationales, and delaying shipments. There have also been complaints regarding a general lack of transparency and legal certainty in the regulation of agricultural products that increases risks and costs for agricultural importers. [14] In the services sector there have been a number of areas of concern in relation to China’s commitments to increase market access and remove restrictions that prevent foreign companies from effectively extending their services to the Chinese market. In the financial services sector for example, regulatory authorities have been proposing implementation timetables for financial services market reforms that fail to meet liberalization commitments. Similarly, the state news agency, Xinhua, set up rules in September 2006 that breached China’s provision of financial information commitments. Procedural difficulties such as failures to operate with sufficient transparency have also been identified. As noted above, the annual reports of the United States Trade Representative have also noted numerous specific breaches of commitments by China. While few issues were reported with the provision of trading rights, certain sectors, such as pharmaceutical reported that they were being required to use Chinese importers to bring products into China despite the fact that no exception had been made to trading rights for the sector. A failure to grant trading rights in relation to books, newspapers, periodicals, electronic publications, and audio and video products was also identified. Under the accession protocol, [15] China also committed to granting equivalent national treatment to foreign companies providing distribution services. Difficulties in granting this market access, which was supposed to be in place within three years of accession, was dealt with when China passed licensing powers for distribution to provincial authorities. However, technical barriers remained in operation in the market. Difficulties have been identified with respect to the distribution of foreign publications and direct selling from a fixed location. Distribution has not been integrated in China and no company operating in the country controls more than two percent of the market or has full national coverage. There are certain requirements placed on foreign distributors that do not apply to domestic carriers. Similarly, specific requirements for the distribution of certain products, such as wholesale crude oil distribution, appear to be including high thresholds to entry that will work against the entry of foreign companies into the market. With regard to wholesale and retail controls, progress has been made, with foreign retailers being freed of market access restrictions, geographic restrictions, and quantitative controls. [16] China also phased in the ability of foreign companies to take on wholesale and commission agent services. Initial difficulties in getting approved for wholesale and commission agents’ service licenses were dealt with and backlogs in applications cleared. Wholesale distribution was also made simpler for foreign companies operating in Free Trade Zones. Many licensing powers have been devolved to provincial authorities, further promoting efficient applications. In 2005, China also began issuing distribution licenses for foreign companies selling automobiles and wholesale pharmaceuticals. However, with regard to the wholesale and retail distribution by foreign enterprises of books, newspapers, periodicals, electronic publications, and audio and video products, restrictions remained in effect despite a commitment to having them removed. There also remain a number of product categories that state owned enterprises have a monopoly distribution right on. [17] Other product categories require foreign distributors to form partnerships with domestic distributors, or to comply with restrictions that are not imposed on domestic operators. [18] China has relied on the Article XX GATT exception for the protection of public morals as the basis for its failure to liberalize the market in publications and books. This is despite the fact that it could continue to meet its censorship goals without restricting this market. [19] Also, while China has implemented new rules on the distribution of automobiles by foreign enterprises, these still show that such distributors will be held to restrictions that do not apply to domestic enterprises. Pharmaceuticals are also restricted in a manner that prevents foreign companies from benefitting from China’s distribution commitments. There is also concern on the ability of Chinese municipalities to deny wholesale distribution licenses in cases where urban commercial network plans have not been devised by the municipality. This is particularly problematic given the fact that the power is largely discretionary and the majority of municipalities in the country still have not devised network plans. There are also continuing high thresholds to entry in certain wholesale distribution markets, such as that for wholesale crude and processed oil products. [20] While many of the licensing difficulties seen in the wholesale market were also initially experienced in the retail market, these are increasingly being removed. However, there is still a discretion on municipalities to deny retail distribution licenses in cities that have not devised commercial network plans, in the same way as for wholesale distribution licenses. This is particularly problematic given that domestic enterprises are not denied licenses on this basis. With regard to the retail distribution of processed oil products, China has been attempting to avoid its commitment in this area by classifying gas stations as a type of chain store, which are treated more restrictively than gas stations ought to be treated, requiring joint ventures with minority foreign ownership. [21] With regard to franchising liberalization, problems have been identified with the Chinese requirement that companies own and operate at least two units before being permitted to franchise further units in the territory. This causes delays for foreign companies that wish to franchise their businesses in China as they must first go through the time consuming process of opening two units. In certain business models, the practice is even more problematic, as certain companies, such as large hotel chains, do not own or operate any units themselves. Many of these chains only franchise existing hotels and are never required to be involved in the opening or operating of an actual hotel. However, in order to be able to extend their franchise in China, they must go through the costly exercise of opening two hotels. This is a hurdle that applies in breach of China’s commitment to opening up the franchise services market. The rules also have capital requirements that have been viewed as excessive by certain economists. The information disclosure requirements placed on franchises are vague, and the liability of firms that fail to properly fulfill these vague requirements have not been defined with certainty in the relevant rules. [22]#p#分页标题#e# Issues have also been identified with respect to the direct selling regulations. These regulations apply to companies who wish to sell directly from a fixed location, from a distance, using ordering methods such as online or catalogue sales. One difficulty that has been identified with the Chinese regulations on this area relate to the prohibition on rewarding upstream personnel for the downstream sales of members of the same team. This is a common compensation model in virtually all WTO states. There are also differences in the requirements imposed on foreign direct sellers such as a requirement that they have three years experience, high capitalization requirements, a cap on single-level compensation practices, and service centre regulations that are vague and unduly onerous on small and medium sized enterprises. [23] All of these requirements combine to make it significantly more difficult for smaller and newer foreign direct sellers, of which there are many on the Internet, to enter the Chinese market. [24] While China has been commended for its timely implementation of new tariff rates called for by its WTO accession, issues have been identified in relation to China’s customs valuation methods. [25] Problems with valuations methods for the charging of the appropriate tariff have delayed import shipments and hampered the smooth operations of companies involved in importing goods into China. Some of the practices that have caused problems stem from the practice of customs authorities using references prices, instead of the value of the transaction, as the basis for calculating customs duties. There have also been automatic customs charges on royalties and license fees for imported software without ascertaining whether such licensing and royalties are import related. With electronic media such as DVDs and CDs, customs tariffs have been charged on the value of future copies to be made of the electronic media, rather than on the value of the media being imported. There have also been complaints centering on the inefficiency of the customs process, inconsistencies in its operations, and the time it takes to clear imports. [26] With respect to import licensing, a number of issues have been identified, specifically with respect to licensing for iron ore imports, tariff-rate quota systems, and questionable sanitary and phytosanitary (SPS) requirements on agricultural imports. For example, in May 2005, without prior notification to the WTO, China imposed new import licensing procedures for iron ore, immediately following a number of large supply contracts being concluded between Chinese importers and international suppliers and producers. The identities of the licensees was not public, and it was not possible to ascertain if China had used the import licensing procedures as a means of restricting trade, a prohibited purpose. It was also noted that this process could easily be repeated in relation to other raw material imports, giving Chinese importers who sourced materials abroad a significant advantage over foreign owned importers. In relation to non-tariff restrictions, particularly, quantitative import quotas, China had successfully eliminated all such restrictions by the deadline of 1 January 2005, with many categories of quota being eliminated ahead of deadlines. However, it was also noted that difficulties in the regulation of the quota system significantly disrupted the operation of auto imports, and disadvantaged such imports. However, it has also been observed in this context that China’s new import quota system has suffered issues including delays in issuing necessary regulations, delays in the allocation of quotas, and a general lack of transparency that made assessing China’s compliance difficult. All of this meant that both wholesale and retail importation operations for auto parts were disrupted. [27] Another area of difficulty with respect to China’s implementation of its WTO obligations has related to the procedural use of anti-dumping measures by China. [28] While China is permitted to protect its market against unlawful dumping by foreign companies, its use of such safeguards has been heavily criticized because of a general lack of transparency and detailed information with respect to the various investigations and decisions that have been made. In many cases, the affected parties are not given adequate data with which to respond to dumping allegations and make a case in their defense. Likewise, the body responsible for making injury investigations has not been able to adequately provide affected parties with the data upon which its decisions are based. In most anti-dumping investigations, domestic industries initiate the investigation by making a complaint to the investigating authority. Such complaints include non-confidential summaries of the practices that are being complained against and the harm that they are causing domestic producers. [29] Consistently however, the Chinese authorities have failed to grant access to these non-confidential summaries and as a result, foreign enterprises have not been able to respond or alter their actions so as to avoid the harm that is being caused. Both the underlying facts upon which a determination is based, and the data upon which the injury is determined are not shared with affected parties. In most cases, the causal link between the actions being penalized and the harm complained is also not borne out by the data presented by investigatory authorities. The Chinese investigatory authorities have also shown themselves to be more likely than authorities in other countries that provide a more transparent service to find against the foreign company being investigated. Therefore, while the key aspects of China’s anti-dumping legislation are in place, the operation of the process cannot be assessed for compliance with WTO requirements. [30] With regard to the Most-Favored Nation (MFN) principle, China has gone a long way towards reforming its legal system so as to implement the principle and grant all of its trading partners equal and normal trading statuses. However, numerous shortcomings were identified in China’s legal response to the requirements of MFN. While China has been actively reforming its laws to comply with the MFN requirement, it’s value-added tax system continued to unfairly discriminate against foreign goods. China’s SPS requirements were also shown to the discriminatory against foreign agricultural products. Foreign automobile producers and imported auto parts have also been discriminated against through a number of policies including taxation provisions. Other disputes relating to discriminatory VAT application, such as that relating to semiconductors, have been settled by the China and the complainants, and it appears as though this will continue to be the way in which VAT disputes are settled, and that China is acting in a cooperative manner to identify and rectify discriminatory VAT provisions. [31] To conclude therefore, it is clear that while the task is complex and China still has many areas of specific concern with regard to its full compliance with all of the WTO obligations it has undertaken, China is in general working towards increasing its compliance and working with its partners and with the WTO system to improve the access it grants to foreign goods and services within its territory. Difficulties persist in a number of complex and important areas, including the imposition of anti-dumping measures, the quantification of tariffs, and the charging of VAT. However, it seems clear that thus far, China has been attempting to implement its obligations in good faith, to resolve trade disputes in a cooperative manner, and play an increasing contribution to the furtherance of global trade. This is having a significant impact on China’s own economy, which continues to grow rapidly, as well as on the global economy, and it remains to be seen if this increased trade and prosperity within China will have an impact on the country’s political system and the emergence of democracy in China. |
 |
|||
| 网站地图 |
