On Cultural Trade Legal System Under The WTO

The history of human beings coincides with the history of culture, which is the fruit of the material and spiritual developments. On account of the significance of multilateral trade system for the development of the world economy over the passed 60 years, people give wishes to its solutions to the problems of trade and environment. With the development of WTO, the WTO agreement, together with SPS, TBT agreements and GATT make the fundamental rules for trade and culture in the fields of international trade. But due to the complexity and pluralist of the problem of trade and culture, it is quite difficult to solve the contradiction of trade and culture. And that is one of the reasons that UNESCO convention on protection and promotion of the diversity of cultural expressions (CCD) comes into reality. Thus, we should do some research on the legal effects, applicability, the specific definition as well as the relationship between culture and trade, so as to construct an effective and complete cultural trade legal system under the WTO and provide some useful and legislative advice.The dissertation’on the culture trade legal system under WTO’is composed of six chapters, including the theoretical analysis of culture and trade, the introduction of culture and trade legal system under WTO, the specific rules of culture trade law under WTO, the DSU of cultural products and service trade under WTO, the conflicts of culture and trade and approaches to keep them balance, and finally, the culture trade legal system in China. The six chapters corelate with each other.The introduction is about the background history of the subject, the importance of the research, and the methodology of the thesis. The research of the problems attaches great importance to the promotion of trade and culture, and the development of diversity of human’s cultures.1. Theoretical basis of culture and tradeThis chapter focuses on the basic definitions and theories of the thesis. In the analysis of social and linguistic definition of culture, and on the through research of the definitions of culture home and abroad, the writer concludes that it is an abstract conception, a physical and mental symbol of a Nation and the lifeblood. Culture is a dynamic concept, including popular culture, elite culture, which will be deepened and intensified by the progress of mankind.Moreover, the dissertation analyzes the orgins of the conflict of culture and trade from economic, value and legal perspectives. On the analysis of the international trade and cultural conflicts, the writer concludes that international trade is one of the important reasons of cultural integration, but the basis reason could be owed to the externality of cultural products and cultural market failures. As to the value of culture and trade, it should be the balance of equality and efficiency, individual interest and national, social interest, the developed and developing countries interests. Finally, as to the legal solution, we should lean on the balance of cultural and trading policy internationally to the advancement of cultural diversity.In addition, the chapter analyzes the history of culture and trade and the reason for their conflicts. Dating back the WWII, the conflict between culture and trade, it shows itself first in the battle on the film industry. Later in the Uruguay Round Negotiations of GATT1994, the French government had proposed "cultural exception", advocated trade and culture; especially audio-visual products should be excluded from the WTO trading system. Unfortunately, this idea had not reached the expectation of France. In the 90th of 20th century, it putted forward the slogan of cultural diversity gradually and replaced the cultural exception, which is more neutral, more accessible to the majority of approval of other developed countries, such as Canada, Australia and developing countries. With the further liberalization of free trade, the Doha Round Negotiations, though it did not concern with cultural issues, the negotiations on audio-visual products go to stand still. Although the 2005 UNESCO CCD has been ratified by a lot of nations, it has a long way to go to safeguard and promote the development of cultural diversity effectively.2. Overview of the cultural trade legal system under the WTOFirst of all, the adjustment of cultural trade legal system is the cultural products, and the dissertation also categories the adjustment from domestic and international level. In general, Cultural products (goods), contains books, magazines, multimedia products, software, audio, movies, videos, audio-visual programs, such as handicrafts and fashion design, while cultural services includes music, drama, ballet, touring performances and other cultural matters.In addition, the chapter focuses on a very important concept of "cultural policy measure" of cultural trade legal system, which is the most direct expression of a country’s trade policy and attitude and also one of the specific acts regulated by WTO legal system. Generally speaking, a cultural policy measure often appears as subsidies, restrictions on market access, taxation measures, licensing restrictions, foreign investment and ownership restrictions, domestic content requirements. The reason why a cultural policy measure could be applied, first of all, it is based on the dual attributes of cultural products having the circulation of commodities and preservation of culture. Second, the implementation of these measures is to protect domestic culture. Cultural products are the main vehicle for cultural trade; it is the duty of a country to protect them. As for the implementation of a country’s culture of discriminatory policy measure, if such discrimination does not exceed the limit WTO rules, it can be seen as legitimate and reasonable.3. Specific rules of cultural trade under the WTOThis chapter is to analyze the rules relating to the culture under the WTO, including GATT1994, GATS, SPS Agreement, TRIPS and so on. Beginning with the analysis of the principles provisions of WTO, such as the obligations of Most-Favored-Nations, National Treatment and Market Access, it points out that to clarify the key terms is to determine the "like "product. This standard is one of the tools to distinguish that the difference between trade protectionism as a legitimate non-discriminatory measures and In my opinion, in determining the like cultural products or substantive products, it is balanced by the’aims and effects test’and ’border tax standard’, such as the analysis of cultural policy development purposes, consumer preferences, product manufacturing and production process.Thus, this chapter continues to analyze the terms and conditions of provisions relating to general exceptions and other cultural products of the GATT and the GATS. Whether a cultural policy measures is to protect the domestic cultural products, and meanwhile whether it results in arbitrary or unjustifiable discrimination or disguised restriction to international trade to other countries should combined the chapeau with the specific exceptions.Then, this chapter collates the rules in the cultural products of WTO, such as the TRIPS Agreement, TBT Agreement, SCM Agreement, Anti-Dumping Agreement and the Safeguards Agreement. Based on analysis of the rules, it is reasonable to clarify the legitimacy of cultural policy measure.Finally, this chapter analyzes the current status of cultural trade services, i.e. GATS, there will be two trends. First, GATS, although affecting trade in services, countries also have enough freedom to choose the application of their rights and obligations. However the excessive flow for natural existence related directly with market access commitments of the trade barriers. Under the GATS market access restrictions, like quantitative restrictions under GATT, it generally has a direct bearing on the distinction between foreign products, but it should not prohibit or restrict the influx of foreign cultural products. Secondly, cultural policies related to Most-Favored-Nation often show as joint-film shooting or the printing industry. In fact, the most-favored-nation exemptions are described in Chapter 2 is not in accordance with the basic theory of the cultural policy measure. And according to the provisions of Annex of GATS, the MFN exemptions should be terminated in December 31,2004. Although the time has long past, but the effectiveness of this provision, WTO Committee on Trade in Services has been no explanation in this regard.4. Dispute Settlement Body of Cultural Trade under the WTOThis chapter aims at the bases of WTO dispute settlement mechanism and its rules which apply to the procedure. First of all, the panel and Appellate Body of WTO based on Article 3, paragraph 2 of DSU obtain the express, implied, and the compulsory jurisdiction; then take the specific case as an example; this chapter discusses the burden of proof and the interpretation rules under WTO, the patterns that the DSB resolves cultural trade issues. Then the chapter considers the existing trade rules and cultural constraints in the application of conditions and the actual effectiveness of the limitations of judicial interpretation model.As far as I am concerned, first, according to the Vienna Convention on the Law of Treaties and Statute of the International Court of Justice, other international legal documents can be invoked as a fact by the WTO Appellate Body regardless of whether all WTO member countries are also the same party. Second, the contemporaneous or evolutionary interpretation contained in the judicial practice of the Panel and the Appellate Body can be applied to the dynamic culture.5. Solution for conflicts between culture and commerce.Through a recall and analysis of Doha Round Negotiation, and a study into 2005 UNESCO CCD, chapter 5 intends to find a possible solution for the problem of culture trading outside the scope of WTO framework. Being the first convention safeguarding cultural diversity, its content, purpose and those domestic and international measures taken by contracting states, have been examined in this chapter, and potential conflicts between UNESCO CCDand WTO will be discovered. The problem is whether this convention can be used as a defence for culture policy applied by WTO member states? According to legal explanation by panel, the possibility seems to be dim.Then chapter 5 goes on in reviewing possibility of settling the conflicts within WTO framework, which focus on improvement of WTO regulation. If restriction on display (Art.4 of GATT 1994) should be cut off, it will not be approved by all member states in short time. The only way out is to make modifications. With regarding to the possibility of making supplement about culture diversity, I think the answer is a positive one. In addition, I expressed my opinion on how to protect culture rights of developing countries, and also on anti-dumping measures for audiovisual products6. Research of Chinese legal system on culture tradingThis chapter first reviewed specific commitment China has made on culture and service when signing in. This is done through three aspects including publication, film industry and audiovisul industry. This research results in a conclusion of possible measures, stratigy and legal grounds for dispute on culture trading. First, we should emphasis that our measures are not conflict with principles of WTO, "aims standard"may be applied, which expanding lawfulness of policy applied. Second, make deep analysis on specific regulation, especially exceptional clauses. Legal opinion by panel shall be applied in this period, to gain more favor. Finally, suggestion for legislation is provided, a basic law protecting culture is necessary.