Weihuan Zhou

The role of regulatory purpose under Articles III: 2 and 4 – toward consistency between negotiating history and WTO jurisprudence

After years of debate, the issues of whether and where (i.e. under which legal element) regulatory purposes should be considered under Article III:2 and Article III:4 of the GATT – the most invoked provisions of the National Treatment rule – remain unsolved. This article submits that the preparatory work of the National Treatment rule provides significant interpretative guidance on the issues. In relation to Article III:2, 2nd sentence and Article III:4, the WTO jurisprudence has achieved consistency with the interpretative guidance. However, by expanding the reach of Article III:2, 1st sentence to origin-neutral fiscal measures whereas rejecting the relevance of regulatory purposes to the determination of whether such measures are in violation of that sentence, the WTO judges have failed to respect the functions of Article III:1 and Article III:2, 1st sentence as contemplated by the draftsmen. To remedy this failure, this article proposes that the WTO adjudicators should either approve formal purpose inquiries under Article III:2, 1st sentence, or, alternatively, confine the application of that sentence to origin-specific measures only.

Panel Report on EU-Biodiesel: A Glass Half Full? - Implications for the Rising Issue of 'Particular Market Situation'

This article provides a detailed analysis of the World Trade Organisation (“WTO”) panel report on the EU – Biodiesel dispute which represents the latest development of the WTO jurisprudence on anti-dumping. The panel’s decision has significant implications for the rising use of Particular Market Situation (“PMS”) by traditional users of anti-dumping (such as Australia) against economies like China in anti-dumping investigations. The panel correctly established that a finding of PMS does not provide a sufficient ground for the use of surrogate costs in the determination of constructed normal value (“CNV”) and that the use of that methodology would result in the imposition of anti-dumping duties in excess of dumping margins that should have been established consistently with the WTO Anti-Dumping Agreement, that is, by using actual costs recorded by exporters under investigation. It is argued that both Australia’s anti-dumping laws which essentially authorise the use of surrogate costs in the construction of normal value solely based on a finding of PMS and Australia’s use of that methodology in practice are contrary to WTO rules. The panel’s decision, therefore, is a positive step toward the resolution of the issues related to PMS by imposing constraints on the use of a protectionist methodology in determining CNV so as to prevent unjustified inflation of dumping margins and anti-dumping duties.

Introduction: Non-market Economies in the Global Trading System—The Special Case of China

This chapter opens the discussions of the issues relating to non-market economies under the multilateral trading system by highlighting the importance of these issues and outlining the development of these issues in relation to China. It sets out the structure of the book and summarises how each subsequent chapter contributes to the understanding of and debate over non-market economies, the interpretation and application of the relevant WTO rules especially those on anti-dumping and subsidies, and the anti-dumping laws and practices in major jurisdictions, using China as a special case.

The Issue of ‘Particular Market Situation’ Under WTO Anti-dumping Law

The expiry of the so-called NME Methodology under China’s WTO Accession Protocol has led to the search for potential alternatives to continue to treat China as an NME in anti-dumping actions, and the growing importance of the concept of ‘particular market situation’ (“PMS”) under the WTO Anti-Dumping Agreement. This chapter discusses how the PMS method should be interpreted and applied and the implications of the Appellate Body’s recent decisions in the EU—Biodiesel dispute for the issue of PMS. The chapter then offers a brief overview of Australia’s application of the PMS method in anti-dumping actions, and the latest development of anti-dumping laws and practices in the US and the EU in this connection.

Regulating FinTech in China: From Permissive to Balanced

This chapter analyzes the evolution of FinTech and related regulation in China. Thanks to the supportive economic and policy environment, the growth of digital financial services (“DFS”) in China over the past decade has been phenomenal, making China now one of the worlds largest DFS markets. In the meantime, the digital finance boom has created serious concerns and challenges for Chinese regulators in relation to issues such as financial stability, consumer protection, illegal financial activities, etc. To address these issues, the Chinese government has committed to develop a comprehensive framework for the regulation and supervision of DFS and has taken a balanced approach whereby the promotion of DFS will continue under such a framework so as to ensure the sustainable development of DFS. The major challenges ahead are to ensure the regulatory framework has the potential to deal with new forms of DFS and new problems associated with DFS, and to balance the regulation of DFS with its healthy growth.

Anti-dumping Practices and China's Implementation of WTO Rulings

We explore Chinas behaviour in taking anti-dumping actions, with a focus on those which have been challenged under the WTO dispute settlement mechanism. We argue that the typical motivations behind Chinas resort to anti-dumping measures include protection, retaliation, industrial development and export promotion. These motivations are likely to carry more weight than Chinas observance of WTO obligations when deciding whether to impose anti-dumping measures and whether to implement WTO rulings. Brief recommendations are provided to foreign governments and exporters on how to avoid Chinas anti-dumping actions.

Circumvention and Anti-Circumvention: Rising Protectionism in Australia

The article discusses circumvention and anti-circumvention in international trade with a focus on Australia’s anti-circumvention mechanism and in particular the first anti-circumvention investigation in Australia. It identifies the major issues relating to circumvention and anti-circumvention in the GATT/WTO negotiations which have led to the failure of WTO members to conclude uniform rules on anti-circumvention. The article argues that multilateral anti-circumvention rules are necessary to standardise national anti-circumvention laws and practice and discipline unilateral use of anti-circumvention measures. The article further argues that Australia’s anti-circumvention law and practice, as reflected in its first anti-circumvention investigation, may have violated WTO rules and is likely to lead to increasing protectionism to cost of WTO members and Australia’s FTA trading partners. Australia’s unjustified use of anti-circumvention measures is unlikely to foster the development of its import-competing industries and may provoke retaliation by other countries.