The Study On "Public Body Identification Standards" Formed Under WTO Case Law

The going out of state-owned enterprises is one of the important strategies in the past 30 years since China's reform and opening up,and foreign import and export trade is an important strategic measure for Chinese state-owned enterprises to go out under the background of globalization.Although countries actively promote economic and trade exchanges and commercial cooperation through the signing of trade reciprocal treaties,China's state-owned enterprises are still frequently hindered by various trade barriers set up by trading partners in the international economy and trade.Importing countries of raw material products such as United States and Canada have frequently launched countervailing investigations against China,and identified Chinese state-owned enterprises as public bodies in their countervailing decisions,which has caused great damage to the interests of our state-owned enterprises."Public body identification" is one of the core controversial issues in countervailing investigations.The premise of the conduct of a state-owned enterprise constituting a subsidy is that the state-owned enterprise is a "public body" in the Agreement on subsidies and countervailing measures.Therefore,the identification of whether a state-owned enterprise is a public body is directly related to whether the state-owned enterprise or bank that provides production raw materials or loans constitutes a subsidy provider in international trade.The"public body identification standard”is the legal basis to identify public bodies,but there has been a great difference in practice as far as such standard is concerned.In the practice process of countervailing duties,it is a common practice to submit those disputes related to the identification of public bodies to the WTO Dispute Settlement Body,The“public body identification standard" formed in WTO cases will directly affect the identification of state-owned enterprises in practice.Therefore,studying the relevant WTO cases,concluding and summarizing the“public body identification standard”formed in the WTO cases,so as to find ways for China's future practice,will help to accelerate the foreign import and export trade of Chinese high-proportional state-owned enterprises and solve the difficulties of state-owned enterprises'going out.However,the WTO case system is complex.In order to conclude and summarize the“public body identification standard”formed and perfected in the WTO case system,this dissertation chooses the related "Korea-Commercial Vessels Case(EC)"(DS273),"US-Anti-Dumping and Countervailing Duties Case(China)"(DS379),“US-Hot Rolled Carbon Steel Case(India)"(DS436)and the enforcement lawsuit of the "US-Countervailing Measures Case(China)”(DS437)from all WTO cases as the studying object.This dissertation analyzes and teases out the four cases according to the time order in which the conclusions were made in each case.After analysis and teasing out,this dissertation finds that:(1)The Panel of“Korea-Commercial Vessels Case(EC)”first established the WTO-level“multi-factor governmental control”standard,which identified public bodies mainly based on government ownership with comprehensively considering other factors such as the power of appointment and removal;(2)In the"US-Anti-Dumping and Countervailing Duties Case(China)”,the Panel returned to the "single-factor governmental control”standard,which identified public bodies solely through examining government ownership in entities;(3)The Appellate Body of the "US-Anti-Dumping and Countervailing Duties Case(China')”established the“governmental authority”standard,which identified public bodies if an entity "possesses,exercises or is vested with governmental authority to perform government functions".Besides,the Appellate Body also formed some evidentiary standards such as "the existence of sustaining or systematic government functions",“entities'core characteristics and their relationship with the government”and "meaningful control”.(4)In the "US-Hot rolled carbon Steel Case",the Panel mistakenly treated“meaningful control”as the“substantive public body identification standard”.Then,the Appellate Body clarified that“meaningful control”was just an evidentiary standard rather than the "public body identification standard”;(5)In the enforcement lawsuit of the"US-Countervailing Measures Case(China)",the“clear logical connection"standard based on China's proposition was formed.The "clear logical connection”standard identified public bodies if there is "a 'clear logical connection'between an entity's‘government function'and its conduct that is alleged to constitute a financial contribution".This dissertation is divided into four chapters.The first chapter discusses the legal sources of“public body”and studies the meaning of "public body”through the interpretation process of the Panel in the "US-Anti-Dumping and Countervailing Duties Case(China)",so as to lay a foundation for the study of"public body identification standard".The second chapter studies the“Korea-Commercial Vessels Case(EC)”,“US-Anti-Dumping and Countervailing Duties Case(China),and "US-Hot Rolled Carbon Steel Case(India)" in chronological order,and respectively teases out the views of both parties to the dispute,the Panel and the Appellate Body on the "public body identification standard",then draws a summary of each case.Since the enforcement lawsuit of the "US-Countervailing Measures Case(China)”is the latest case ruled by the WTO Appellate Body in 2019,this dissertation separately studies this case in the third chapter.The third chapter first briefly introduces the original dispute of the"US-Countervailing Measures Case(China)",and then mainly studies the contents of this case which related to the "public body identification standard",summarizing and teasing out those contents respectively from the Panel Report and the Appellate Body Report,and then evaluates this case.In the fourth chapter,this dissertation summarizes the "public body identification standards" formed in the four cases and the evolution process of each "public body identification standard" in WTO cases.Finally,the fourth chapter expresses the writer's views on each "public body identification standard”,and makes a reflection on the enlightenment of each "public body identification standard" content and its evolution process to China's future practice.