A Legal Issues’ Study On The Dispute Of Chinese Rare Earths’ Exports

Rare earth is becoming more and more widely applied in various fields,it is leading the world into the era of "rare earth". But inevitably, the contradiction between supply and demand is on the rise, Countries around the world demand for rare earth resource has become more and more urgent. As the main supplier of rare earth,China is the largest support of it. The mass production of rare earth has caused serious environmental problems,China has to take steps to restrict export of rare earth,so it causes dissatisfaction around the world,EU、Japan and other countries,led by the United States have put forward the claims to WTO. In the case of negotiations failed in July 2012 the WTO formally set up a panel investigating China’s rare earth export restrictions. The final report issued by WTO ruled that China’s export restrictions on rare earth has violated the China’s WTO accession commitments, China lost.The rare earth case is not the first lost case of resource contention in WTO, the raw materials case China was also lost in 2012.At present, resources are becoming less and less,as the country which have rich resources,China has to deal with the major challenge of western countries to our country resources policy measures. In recent months,the United States began to act on China’s photovoltaic products,claimed that China’s photovoltaic products caused material injury to its industry. The United States will imposed anti-dumping and anti-subsidy duties on related products. How to protect related industry and scarce resources in the future,and how to deal with the coming dispute of photovoltaic products,are our main tasks which can be benefit from the experience of the rare earth case. So this paper will study the rare earth case and summarize the lessons and experiences of dealing with such case.This article elaborates the legal problems of the rare earth dispute, it is divided into six parts. The first part of this paper is an overview of the rare earth case, firstly it enumerates China’s policy on rare earth in recent years,then it compares with the case of raw materials and analyzes the basic situation of it,finally it introduces the situation of the rare earth case. The second part is the thinking about the rare earth lost, mainly from the perspective of macro and micro to sum up the causes of the rare earth case losing,like the passive position in the procedure、“The protection of resources” lack of persuasiveness、the technical error on the proof、export restrictions and domestic protection are out of sync and so on. The third part analyzes the main legal issues of the rare case in detail,like export tariffs, quotas and export enterprise rights restrictions. The fourth and fifth part mainly revolves around three measures listed in the third part and analyze them with the related legal theory and legislation,he analysis of legal theory includes super WTO obligations、treat the export limitation as enterprise behavior、explanation methods of aim and basic principles,legislation analysis mainly includes the article 20 general exception clauses and 21 security exception clause of GATT. The sixth part mainly summarizes the experience and lessons in the rare earth case,such as attaching great importance to the proof、promoting the integration of domestic law and WTO rules、coordinating the domestic and export protection、promoting the development of rare earth collectivization under the balance of market allocation and administrative controls、enhancing the ability to use international rules and negotiation skills.