Interpretation Of Article 15 Of China's WTO Accession Protocol From The Perspective Of Supplementary Explanation

Article 15 of Accession of The People's Republic of China stipulates that its(a)(ii)term terminates 15 years after China's accession to the World Trade Organization.Although most scholars in China believe that,the meaning of this termination is the end of the anti-dumping surrogate country approach against China under the WTO framework.However,some WTO members,such as EU members,continue to apply surrogate country approach and similar approach to China in their laws and agree that the termination of Article 15(a)(ii)does not mean that surrogate country approach to China is invalid after the termination.Although the academic community's interpretation of Article 15 of the Protocol and the arguments for various viewpoints emerge in an endless stream,most of the explanations and arguments are based on common interpretation.Common interpretation method is the treaty interpretation rule established by the Vienna Convention on the Law of Treaties,and the rule could be reasonably explained most of the time.However,in this case,Article 15 of the Protocol has a rather complicated situation,so that the common interpretation method cannot be effectively justified in response to the EU's legislative provocations and the theories of European and American scholars.The reason is that even if scholars can put forward the theory of common interpretation in the article,they can hardly prove that the explanations of opposite scholars cannot be justified.According to Anti-Dumping Agreement,the two allowed interpretations are not exclusive,and2 Dispute Settlement Body can choose any one as the basis for the referee.This paper has spent a lot of space to prove that the common interpretation method has made the meaning of the article unclear and has limitations.It is a more appropriate and effective method of supplementary interpretation method in accordance with the Vienna Convention on the Law of Treaties when the common interpretation method makes the meaning of the article unclear.Therefore,the core argument of this paper is to conclude that the supplementary explanation must be applied by analyzing the shortcomings of the existing common interpretation methods and the advantages of supplementary explanations.Thus,by combing the existing China's accession to the WTO,a logical and well-organized supplementary explanation is concluded and apply to the defense of the present and future.In order to demonstrate this argument,the paper divides into three chapters.The main role of the first chapter is to elicit the core argument of this paper—the explanation must be applied to the supplementary explanation.The first chapter first sorts out the formation of the surrogate country approach under the WTO framework.Specifically,the origin of the surrogate country approach began in the GATT era,and the capitalist countries made it in view of the particularity of the socialist country's market.When the product under investigation comes from “a country whose trade is completely monopolized” and “all domestic prices are determined by the state”,the structural value of the substitute country is chosen to determine the normal value of the goods in the exporting country.This rule has a realistic and positive significance during the Cold War period,because the price of goods in the socialist countries did not reflect its domestic structural value.After the end of the Cold War,with the disintegration or reform of such countries,countries that can actually apply this provision no longer exist.After the establishment of the WTO,such clauses still exist in the Anti-Dumping Agreement and GATT 1994 in the above-mentioned provisions.In reality,there is no practicality,and exist in name only.On China's accession to WTO,in view of the collision between the East and West negotiations and the political forces,Article 15 of the Protocol specific to China was formed.Article 15 is based on the principle of adopting a surrogate country approach for Chinese exports,3 with the exception of the normal value measurement(unless the product can be proved to be produced under market economy conditions).In fact,it is a deviation from the general rule of determining the normal value of WTO.When China joined WTO,it was not a country where trade was completely monopolized and most of the domestic prices were not determined by the state.However,out of vigilance and prejudice against China,this special provision was finally formed and presented to the world in the form of Article 15 of the Protocol.Affected by this specific provision,China suffered discriminatory anti-dumping treatment in the past 15 years after its accession to WTO,which brought incalculable losses to the Chinese economy.The Chinese government and most Chinese scholars believe that this discriminatory treatment will expire in 15 years,but it has triggered a rebound in some European and American scholars.The opponents believe that the understanding of Article 15 is not what the Chinese government expects.The failure of subparagraph(a)(ii)does not imply the lapse of the practice of the surrogate country approach should continue to apply.On the date specified in Article 15 of the Protocol,the application of surrogate country approach to China in the law eventually caused the Chinese to be dissatisfied and resort to WTO dispute settlement body,which is DS516 case.Although the European Union amended the relevant laws and regulations,its logical core is still the one that continues to apply the discriminatory calculation method of anti-dumping normal value to China.In short,the role of this chapter is to present the ins and outs of surrogate country approach and to show that there are different methods and different conclusions in the interpretation of Article 15 by the academic community and relevant laws based on this.This is enough to justify the need and urgency of a new interpretation of Article 15.The second chapter is the core part of the paper.It provides a supplementary explanation for the interpretation of the treaty in Article 15 of the Protocol through gradual and logical logic.The interpretation get the meaning of Article 15 and effectively defend the EU legislation and the theory behind it.The second chapter first introduces the general logic of treaty interpretation.The Protocol belongs to the scope of international treaties and should be interpreted by applying the relevant principles4 of the Vienna Convention on the Law of Treaties.That is to say,in the principle of good faith,the text firstly explains the ordinary meaning,purpose(objective)and context,which is the so-called common explanation.Supplementary interpretation shall apply when common explanation leaves the meaning ambiguous or obscure or leads to a result that is manifestly absurd or unreasonable.This chapter then introduces several representative interpretations of Article 15 in the current academic community: the overall failure of subparagraph(a)represented by the DSB in the DS397 case;only(a)(ii)terminated and surrogate country approach should also be terminated which most Chinese scholars represent and only(a)(ii)terminated but surrogate country approach still apply represented by Bernard O'Connor.The author has no intention to analyze the correctness of these interpretations,because the conclusions based on common interpretation methods cannot be proved at all.This chapter then demonstrates the interpretation of the meaning of Article 15 itself,the interpretation of the ordinary meaning,purpose(objective)and context in this case.At the same time,through effective interpretation theory,it is concluded that the common explanation is not competent to explain Article 15.In conclusion,the necessity of supplementary explanation is demonstrated from the side.At the end of this chapter,we analyze the two reasons for the necessity and objectivity of the supplementary explanation in this case.Necessity means that the Vienna Convention on the Law of Treaties clearly states that when the common interpretation method fails to produce a reasonable explanation,it needs to resort to supplementary explanations.Objectivity means that the supplementary materials themselves are mostly in the form of written materials.As long as they are screened and summarized,the conclusions obtained are difficult to fundamentally refute.The existence of these two points is more conducive to the argument that the case must apply supplementary explanation methods.The third chapter is the application part of the argument of this paper.The foregoing has already concluded that the supplementary explanation is the appropriate way to explain Article 15.The first part of this chapter takes the above and uses a variety of supplementary materials to explain the Article 15.Specifically,the "Report of the Working Party on the Accession of China Table of Contents ",the historicalmaterials of negotiations retained at the time of accession to the WTO(especially the historical data on negotiations between China and the United States)and the statements of the parties to the WTO on Article 15 of the Protocol are supplementary materials referred to in the Treaty.It is easy to conclude through analysis and interpretation that anti-dumping discriminatory methods,including surrogate country approach,should be discontinued after 15 years of China's accession to the WTO.Such an interpretation not only conforms to the literal meaning of supplementary explanations,but also conforms to the principle of good faith in treaty interpretation,and is more in line with the principle of MFN treatment of the WTO and the principle of reciprocity of rights and obligations in the entire legal sense.The second part of this chapter responds to the EU's interpretation of Article 15 and subsequent legislation in the DS516 case,which is an application that applies supplementary explanations to specific cases.At the end of this chapter,the author puts forward the views and related concerns about the complete end of surrogate country approach.Throughout the full text,although the interpretation of Article 15 of the Protocol is a matter of cliché,many scholars have interpreted it since the time limit agreed in Article 15 of the Protocol at the end of 2016.However,from a realistic point of view,the European and American sides,especially the EU,are still using laws that are not conducive to China's interpretation and revision or continue to implement anti-dumping laws.If we do not defend successfully,they will continue to have an adverse impact on China.This article breaks the traditional theory of common interpretation methods,does not entangle in the meaning of the text,the purpose(objective)and the context itself,but put forward another way to come up with a supplementary explanation to explain Article 15.In this way,we can draw conclusions that are conducive to China's interpretation,and even avoid the unclearness of Article 15.It is the interpretation direction of the old bottled new wine,and it is a new weapon for China to deal with different theories of Europe and America in the future.