A Study On The Legal Problems Of US 301 Investigation Into China And China's Response Measures

As a tool to safeguard the interests of American foreign trade,Article 301 of American Trade Law plays a very important role in American Modern Trade Act.The article has a wide scope of application,a large degree of retaliation and obvious punitive nature.The United States has taken retaliatory measures against EC to protect the interests of its domestic producers in accordance with Article 301.It has also launched many investigations against Japan in accordance with General Article 301 and Super Article 301,and adopted trade sanctions to levy punitive tariffs to safeguard the trade interests of its domestic enterprises.From 1991 to2010,the United States used the “301 clause” five times against China,which ended with negotiations between the two sides.Since the establishment of WTO,the number of “301clause” used by the United States has decreased compared with the past.However,since Trump became President of the United States,the United States has regained this provision as a weapon of trade protection.In 2017,the United States launched an investigation into China's laws,policies or practices in technology transfer,intellectual property rights,innovation and other related fields in accordance with Article 301,and also adopted sanctions that had not been used by China in the past.This article mainly focuses on the legal issues related to the investigation and sanctions against China initiated by the United States according to the “301 clause”.It also focuses on the analysis of the Countermeasures China can propose when the United States initiates “301 investigation” against China and adopts “301 unilateral sanctions”.This paper mainly analyzes four aspects.First,it gives a comprehensive introduction to the “301 clause”of the United States,including its formation background,legislative evolution and basic procedures.It also explores the implementation of “301 clause” in the light of the foreign trade management system of the United States,and clarifies the roles played by Congress,the President and USTR in the operation of “301 clause”.The second is to study the relevant legal issues of “301 Investigation” in China by the United States.Firstly,the investigation initiated by the United States on the basis of “301 clause” in the history is sorted out,secondly,the basis of the existence of “301 clause” in the context of the revival of “301 investigation”in China is analyzed,and then whether “301 investigation matters and sanctions” focused on by China and the United States are subject to WTO rules is analyzed.Through the analysis of“301 investigation matters” is not without WTO rules.Guan,DSB has the right of final determination of the items covered by WTO rules and the application of “301 sanction measures” outside the WTO system is restricted,so that “301 investigative matters and sanction measures” can be bound by WTO rules.Finally,the “301 investigative report to China” issued by the United States in 2018 is analyzed,and the unreasonable accusations are firmly refuted,and the laws and politics of our country reflected therein are reflected.The existing problems should be improved.Thirdly,the conflict between the “301 unilateral sanctions” adopted by the United States against China and the current international law is analyzed.Firstly,in the WTO system,the conflict between unilateral US sanctions and WTO rules is analyzed.The unilateral US sanctions violate the provisions of Article 23 of DSU,most-favored-nation treatment and tariff concession of GATT 1994,multilateralism and trade liberalization of WTO rules.Secondly,outside the WTO system,because WTO rules and general international law are special and general relations,the latter can make up for the former's shortcomings,and because the United States is a sovereign state in international law,its conduct should also be restricted by general international law,such as the draft articles on responsibility of States for internationally wrongful acts and the basic principles of international law,the principle of national sovereignty and non-interference in internal affairs.Restrictions on it.Fourthly,China should take active measures to effectively deal with the investigation initiated by the United States in accordance with Article 301 and the unilateral sanctions taken against China.We should not only adopt the countermeasure of imposing tariffs,but also study and make full use of the WTO dispute settlement mechanism.Chinese enterprises adversely affected by this tariff increase can also defend their legitimate rights and interests by suing the U.S.courts.At the same time,we should also improve the deficiencies of our relevant laws and policies to prevent them from being disadvantaged in negotiations with the United States.In addition,as the WTO rules have not yet clearly defined the provisions of international technology transfer,China should make clear the legal provisions of technology transfer through bilateral or regional investment agreements,in order to effectively restrict the United States to launch an investigation on the content of technology transfer in China in accordance with Article 301.