Research On EU’s Position And Strategy In The Implementation Of DSB Rulings

DSB rulings, as the most executive and quasi-judicial legal mechanism results, havebeen always the concern of scholars of international law in international law in theinternational trade dispute settlements under the WTO framework. But thoseresearches and analyses are developed from the perspective of DSB rulings’ legalbasis in international law, procedural matters, trial of facts and its legal interpretations,while as for the last implementation step of DSB ruling, cases are scarcely covered bydomestic scholars except in analysis of these cases involving China as a disputingparty. Meanwhile, DSU only made some vague and uncertain provisions of principleson the methods, time periods, review procedures of implementation and traderetaliation of the implementation of the DSB rulings, which therefore often lead todivergences between the respondent and the complainant on whether it is fullyimplemented. Fuzzy probloms and national gambling in the execution of DSB rulingsis often overlooked by scholars.As of November2012, China had become an important participant of the DSBmechanism, while there is a rapid growth as defendant and a long-term slump ascomplaint. However, whether as the complainant or the respondent party, China isfaced with the problem of how to deal with the implementation of DSB rulings. Howto safeguard China’s national interests by legitimate uses of the DSB ruling implementation mechanisms and procedures? To some extent, it is more urgent andimportant than the researches of legal interpretations in cases.In view of the current situation of China’s participation in DSB and the developmenttrend of international trade, this paper is focued on the study of EU’s position andstrategy in the implementation of DSB rulings, and it summarizes EU practices andtechniques based on the specific analysis and strategy summary of EU’simplementation practices of the DSB rulings, looking some strategies from a certainperspective and a new way of thinking for China, and thus it can give guidance tofuture new strategies and new approaches for China with the WTO dispute settlementmechanism.Chapter1is based on a total of447disputes brought to the WTO Dispute SettlementBody by contracting party and demonstrates EU’s active participation in the WTOdispute settlement mechanism with an overview and analysis of EU’s87cases ascomplianant,72cases as defendant. That gives sufficient practical basis and necessityof theoretical research to researches on how the EU specificcally implementate DSBrulings.In chapter2, in accordance with the classification criteria of the WTO official websiteof the current state of the cases,26cases in which EU was respondent involves withthe implementation of ruling, and this paper splits them and has a closer look at thestatus quo of EU’s17types of cases as defendant to perform, mainly including type1“in consultations”, type2“Panel established, but not yet composed”, type7“Report(s)adopted, no further action required”, type8“Report(s) adopted, with recommendationto bring measure(s) into conformity”, type9“Implementation notified by respondent”,type10“Mutually acceptable solution on implementation notified”, type11-15casesinvovling compliance proceedings review and retaliatory measures, and type16-17dispute cases resolved in other ways (Authority for panel lapsed, Settled or terminated(withdrawn, mutually agreed solution)).Chapter3summarizes out three types of EU’s implementation of the DSB rulings(implementation, delay, and no implementation):17cases classified as “basicallyimplemented or effectively implemented”, which accounts for65.4%;17cases classified as “delayed or delayed in disguised form”, which accounts for34.6%;“refusal or disguised refusal to the implementation”, which accounts for23.1%. Thusit is summarized that EU’s basic position and attitude as for implementation of DSBruling are as follows: firstly, as the main participant and a leader of values, theEuropean Union has “basically implemented or effectively implemented” the vastmajority of DSB rulings; secondly, in relation to sensitive issues or key benefits, theEU actually has taken a tough attitude of “refusal or disguised refusal to theimplementation”; thirdly, the “delay” tactic is widely used in EU’s implementation ofthe DSB rulings, covering the time period, implementating contents, and so on;fourthly, EU always makes fully use of self-determined methods of implementation,and maintain their own econaomic and institutional interests by “implementation indisguised form” to separately broke and settle the cases.Chapter4examines the implementating subject, procedures, coordinationmechanisms and practical examples of EU’s implementation of the DSB rulings fromthe aspects of legislative and administrative measures. On the one hand, this sectionreviews the implementation of the DSB rulings related to administrative measures—Council Regulation (EC) No1515/2001), and analyses the implementating subjectand procedures to amendate administrative measures—2001EU Council Regulation(EC) No.1515/2001， and then conducts the reasoning with modification ofadministrative measures in a practical case (DS397). On the other hand, this paperstudies the implementation of the DSB rulings related to legislative measures, anddeliberates the corresponding subjects and procedures to amendate legislativemeasures—“the Treaty on the Functioning of the European Union”, with analysis ofmodification of legislative measures in a practical case (DS397).Chapter5inspects legal issues in EU’s implementation of DS397. Firstly, main legalissues are deliberated in DS397: the EU’s provisions of “separate rate” on acase-by-case basis; enterprises’ application procedures of “separate rate”; analysis ofthe reasons why Chinese enterprises cannot get on the case-by-case treatment of“separate rate”; the impacts of the case-by-case treatment of “separate rate” provisionson the responding enterprises in China. Subsequently, the paper reviews the notices ofthe European Commission on the implementation of DS397——Notice No.2012/C66/06and2012/C86/04, and examines, legal issues reflected in the implementation of review results for DS397made by the European Commission. Viewing Article9.5ofthe EU Anti-dumping Law, as well as its modification in the implementation ofDS397, it is evaluated that truth and fakes coexist in EU’s implementation. It can beproved that in the implementation of DS397by EU: firstly, with the gesture of respect,EU makes full use of the rights and procedures in the dispute settlement mechanism;Secondly, as the substance of perfunctoriness, EU does as much as possible tomaintain the stability of its original system within territory; thirdly, with sufficientspace left, modification results of the implementation of the rulings have many“hidden mysteries”; fourthly, taking the real and imaginary interests into account, bothnational pragmatism and trade liberal values are paid special attention.Chapter six focuses on demonstrating the references and reflections China can obtainfrom the EU’s implementation of DSB rulings from perspective of international law.we can find that1/3of the DSB cases are resolved by consultations; and that thecompliance panel and retaliation measures cases counts a total of20cases; and thatthe implementation practices of United States, the European Union show the selectiveand non-compensatory drawbacks of DSB enforcement mechanisms; and that China’sparticipation in DSB shows that China still needs to improve complaint strategy andrespondent skills. And then, it is deliberated about the reference significance of EU’simplementation of DSB rulings to China. China’s current domestic and internationaleconomic pressures are tremendous, and the DSB Dispute Settlement strategy needsto be synchronously upgraded; worldwide trade protectionism requires China to“leverage the power and an eye for an eye”; protect the interests of the domesticdevelopment with international law and domestic law in accordance with the principleof “pragmatism” In particular, EU’s implementation of the DS397ruling revealssignificant values to China.In the last section, it is concluded that there is still a long way to go through to learnlegal skills of implementation from WTO members and EU, and it is quite urgent tobetter use the procedures and rights in the DSB mechanism in order to achieveChinese national interests.