The Legal Way To Solve The Conflict Between Culture And Trade

The case of "China-measures affecting trading rights and distribution services for certain publications and audiovisual entertainment products" lasting for three years ended with China's amendment of relevant regulations on cultural trade. It was caused by the value conflict between the idea of promoting free trade and the WTO members' powers on the maintenance of their respective cultural sovereignty. As the defendant, China quotes WTO regulations to defend America's argument that China's trade measures are against the WTO regulation. In December 2009, the Appellate Body circulated its report which justifies the purpose of China's measures, however, due to the measures themselves being inconsistent with relevant WTO documents, such as the Accession Protocol or the Working Party Report and not meeting the conditions of GATT moral exception which results China's failure. China's failure means further expansion of domestic cultural market that will make her domestic culture confront erosions of foreign cultures. Starting with the case, this article gives its analysis from the perspective of the application of both regulations of WTO and non-WTO by DSB in order to find a legal way to step up the protection of domestic culture and coordinate the conflict between trade and culture within the frame of WTO.The first part is mainly about the justification of the regulation by the WTO members on the international cultural trade. Focused on the case, this part analyses the specialties of cultural products and the juristic theory as well as the specific regulations, finding out that the answer to that whether WTO members has the power to regulate cultural trade is positive.Beginning with WTO regulations on cultural trade, the second part illustrates the role of WTO and its finite for the protection of WTO members'domestic culture. Among all the regulations, this part gives highlight to GATT moral exception and. Based on the illustrations above, this part puts forward that the WTO regulations are not meeting the requirement of protecting WTO members' domestic culture.The third part illustrates the application of non-WTO international rules to alleviate conflicts between cultural and trade. Firstly, it discusses the availability of non-WTO regulations' application by DSB. Secondly, it is followed by the two ways of the application of non-WTO international law-direct application and as materials for interpreting regulations of WTO. Based on the conclusion above, it introduces the contents of the Convention on the Protection and Promotion of the Diversity of Cultural expressions and its role in the international cultural trade dispute settlement.The last part is the summary and conclusion. Due to the bias of the WTO cultural regulations, during the dispute settling process, DSB should give highlights on the role of the non-WTO rules in two aspects:being directly applied or as the tool for interpretation of the WTO rules.