Analysis Of China's Market Economy Status In The Review Of Protocol On The Accession Of The People's Republic Of China

According to the article 15(d)of ACCESSION OF THE PROPLE'S REPUBLIC OF CHINA(hereafter refer to “Protocol”),article 15(a)(ii)will terminate on December 11,2016,which would influence WTO import member calculate normal in the anti-dumping investigation.The EU and the United States treat China as a non-market economy country all the time,and think the price and cost of products of China cannot inflect the real fair value in the anti-dumping investigation,therefor choosing to use other alternatives to calculate the comparable prices,which result in high anti-dumping duties China shall bear.Over the past decade,China's international trade friction suffered more from anti-dumping investigations,and China has suffered a lot adverse effect because of this.By the end of 2016,the EU and the United States made it clear that refused to recognize China's market economy status,and will continue to use a special calculation method in the anti-dumping investigation to China which shocked us and we have to fight for the rights under protocol for a long time.Therefore,the discussion of protocol once again become the focus of attention.It is very important for us to fight for rights and interest as well as requiring EU and USA to assume the obligation under article 15 of the Protocol by analyzing the behaviors of the EU and the United States in anti-dumping investigation,the relationship between the status of the market economy to obtain and the issue of stopping using a special way.The author will introduce GATT1994 and Anti-Dumping Agreement to analyze the special treatment in the anti-dumping investigation for non-market economy countries and to confirm GATT1994,"Anti-dumping Agreement" and "China's Accession to the WTO Protocol" and other international treaties did not clear the status of non-market economy definition and identification of the way,nor set specific guidance to allow WTO members in the anti-dumping investigation can take other alternative ways.The international treaties above grant specific legislation and enforcement powers to members,so that members have great discretion in the anti-dumping investigations.On one hand it makes the anti-dumping investigation more flexible,on the other hand some members abuse this discretion to realize trade protection and political purposes.Therefore,the author would introduce the domestic law of USA and the EU on the definition of non-market economy status and special calculation in the anti-dumping investigation to more clearly understand the legislation practice on the "non-market economy status".Then,I would analyze the non-market economy under the Protocol.Firstly,with respect to international law and the relationship between Protocol and WTO agreement to confirm the "Accession Protocol" document is a subsidiary of the WTO Agreement,it is an international treaty;secondly to analyze the legal validity of the Protocol to members from the legal effect of international treaties and the pattern of WTO operates;thirdly,based on the views of scholars,the interpretation rules of Vienna Convention on the Law of Treaties and "China's Accession to the Working Group Report" to interpret Article 15 analyzing the logical relationship between the sentences of Article 15;fourthly,based on the definition of "attached period" and "conditional" clause in civil law,to confirm Article 15 of the accession contain both "attached period" and "conditional" clause.The first and third sentences of Article 15(d)is Conditional termination clause while the second sentence is attached period clause;fifthly,according to the interpretation of Article 15 in the case “China-the EU Fasteners” to learn the regulation of non-market economy status of China under the Accession Protocol,and to find adequate legal basis of China obtaining market economy status and the requirements of asking importing WTO members to stop using a special calculation in anti-dumping investigations.Finally,the author will talk about the remedy measures under the WTO DSB we can take in the future,in particular,the Appellate Body rules of treaty interpretation in trade friction to provide some legal opinion for China to fight for rights and interests under Protocol.By analyzing Article 15 of the Protocol,author think that obtaining market economy status and requiring the European Union and the United States to stop the use of special methods of calculation in the anti-dumping investigation is two issues,and the second sentence of Article15 is to help China to gain fair treatment in the anti-dumping investment when WTO importing members refuse to recognize the market economy status of China.Therefore,the EU and the USA shall assume the obligation under article(15)(d),which require them to stop use special calculation method in anti-dumping investigation even if they still consider China is an non-market economy.Meanwhile,in the opinion of the author,the controversy over Article 15 of the Protocol comes from the WTO has never been a unified and unambiguous explanation of this clause,so the author will analyze the Interpretation Rules of WTO,in particular,the interpretation of the power source and its interpretation rules of DSB,to confirm China can require EU and the USA to stop using special calculation method in the anti-dumping investment based on the existing rules of interpretation of DSB.