Legal Issues Of "The Reasonable Period Of Time" In China-countervailing And Anti-dumping Duties On Grain Oriented Flat-rolled Electrical Steel From The United States

At the DSB meeting on30November2012, China stated that it intended to implementthe DSB recommendations and rulings in a manner that respects its WTO obligations. Chinaadded that it would need a reasonable period of time to do so. On8February2013, the UnitedStates requested that the reasonable period of time be determined through binding arbitrationpursuant to Article21.3(c) of the DSU. On22February2013, the United States requested theDirector-General to appoint the arbitrator. On28February2013, the Director-Generalappointed Mr. Claus-Dieter Ehlermann to act as arbitrator under Article21.3(c) of the DSU.On4March2103, Mr. Ehlermann accepted this appointment. A WTO Arbitrator, Mr.Claus-Dieter Ehlermann, on3May2013, issued his Award regarding the “reasonable periodof time” for the implementation of Dispute Settlement Body recommendations and rulings inthe dispute China—Countervailing and Anti-Dumping Duties on Grain Oriented Flat-RolledElectrical Steel from the United States (DS414). The Arbitrator determined that the“reasonable period of time” for China to implement the recommendations and rulings of theDSB in this dispute is8months and15days from the adoption of the Panel and AppellateBody Reports, that is, until31July2013.The text of “reasonable period of time” is specified in Article21.3(c) of the DSU. It is:At a DSB meeting held within30days after the date of adoption of the panel or AppellateBody report, the Member concerned shall inform the DSB of its intentions in respect ofimplementation of the recommendations and rulings of the DSB. If it is impracticable tocomply immediately with the recommendations and rulings, the Member concerned shallhave a reasonable period of time in which to do so. The reasonable period of time shall be:(a)the period of time proposed by the Member concerned, provided that such period is approvedby the DSB; or, in the absence of such approval,(b) a period of time mutually agreed by theparties to the dispute within45days after the date of adoption of the recommendations andrulings; or, in the absence of such agreement,(c) a period of time determined through bindingarbitration within90days after the date of adoption of the recommendations and rulings. Insuch arbitration, a guideline for the arbitrator should be that the reasonable period of time toimplement panel or Appellate Body recommendations should not exceed15months from thedate of adoption of a panel or Appellate Body report. However, that time may be shorter or longer, depending upon the particular circumstances.This paper will explore the legal issues of “reasonable period of time” under Article21.3of the DSU Combining "China-Countervailing and Anti-Dumping Duties on Grain OrientedFlat-rolled Electrical Steel from the United States".This paper consists of four parts: Part one is an introduction to the case. Part two is theanalysis of legal issues in the arbitration process, it will analyze legal matters of the Article21.3of DSU itself and the actual operation process in combination with the case and putforward the corresponding suggestions. Part three points out the main factors that affect thearbitration in this case. This part focuses on the analysis of the elements which matter indetermining the “reasonable period of time”. It could be viewed the most worthy part toanalyze and study in the course of the arbitration, because only by clarifying these decisivefactors can we put forward much more favorable evidence for an implementation period thatis more favorable to China. After all the above analysis, combining the current situation,some suggestions will be made at the end of this paper so as to obtain more judgments infavor of China in the future.