I. Overview of WTO Dispute SettlementMechanism

Dispute Settlement Mechanism (DisputeSettlement Mechanism) is the core of the WTO system, by the GATT Article 22, Article23 of the trade dispute settlement mechanism, after nearly half a century ofaccumulated experience and the formation of customary rules, and graduallyformed A set of international economic law characteristics of the internationaljudicial mechanism, is considered "the most unique contribution of theWTO."

Although the GATT / WTO Dispute SettlementMechanism has provided strong safeguards for the good functioning of the entiremultilateral trading system for more than half a century, it has been an impacton how to make developing countries effectively participate and use themechanism Give full play to the most prominent problem. The activeparticipation of developing countries in dispute settlement is the root of thereal success of this mechanism and the better integration of developingcountries into the multilateral trading system. Therefore, given the specialand differential treatment of developing countries is a basic principle of theWTO multilateral trade system, in the WTO dispute settlement mechanism also hasthe corresponding provisions and specific arrangements.

It is undeniable that the WTO does givespecial and deifferential treatment to developing countries, such as"Understanding on Dispute Settlement Rules and Procedures"(hereinafter referred to as DSU) Article 3.12 (on the basis of the GATTContracting Parties (Relating to the composition of the panel of experts),Article 12.1 (on the extension of the consultation time), Article 12.11(concerning the Panel of Experts), Article 4.1 21.2, 21.7, 21.8 (onenforcement), article 24 (special procedures for members of the least developedcountries), article 27.2 (on the responsibilities of the Secretariat). The newWTO Dispute Settlement Mechanism, which was strengthened at that time, was considered"a powerful tool to keep developing countries from being exposed tobilateral pressures in developed countries."

Second, China in the use of the mechanismfor anti-dumping litigation may encounter obstacles

(A) the status of China's anti-dumping litigation

Since 1979, the EU anti-dumping charges onChina's sodium saccharin since the end of March 21, 29 countries and regions ofChina's exports of anti-dumping investigations initiated 422, involving 4, avariety of goods, ranking first in the world, At least the impact of more than100 million US dollars of exports. 5 in 2 years, foreign exports to China,China launched a large number of anti-dumping cases up to 38 cases.

After joining the WTO, China's exportproducts subject to anti-dumping siege two key issues still exist, first,China's anti-dumping allegations of countries have a growing trend; Second,foreign anti-dumping discriminatory policy will not have much change in thenear future , Such as in determining whether there is dumping, the alternativecountry can still be used, which may make foreign anti-dumping lawsuit againstChina easier to set up.

(B) China's use of WTO dispute settlementmechanism for anti-dumping litigation may encounter obstacles

China is a developing country to join the WTO,the natural enjoyment of the above series of special and differential treatmentof developing countries. But none of these provisions on the text means thatour country can "rely on" the status of the members of the developingcountries to enjoy the "gift". Looking at the practice of allcountries, it is not difficult to find that developing countries really want touse the WTO dispute settlement mechanism to protect their rights and interestswill inevitably encounter a series of problems:

1, lengthy period

WTO Dispute Settlement Schedule

Consultation on the 6th

Establishment of expert groups andappointment of members for 45 days

The final report is submitted to theparties in June

The final report is submitted to the WTOmembers for 3 weeks

Dispute Settlement Agency (if no appeal) 6days

Total (if no appeal) 1 year

Appellate Body Report 6-9

Dispute settlement mechanism is reportedthrough the Appellate Body for 3 days

Total (eg appeal) 1 year and 3 months

Source: WTO: \ Trading into the Future"(2ndedition revised, April 1999), p39.

The international market is changing,changing, so long the end of the dispute settlement process, even if the finalresult of the "fair", the original international share may have beenoccupied by other countries, "late is just justice."

2, limited compensation

Article 3.7 of the DSU expressly statesthat "the means of providing compensation can only be taken if theimmediate withdrawal measure is not feasible and the interim measures to betaken before the withdrawal of measures inconsistent with the applicableagreement", GATT is primarily intended to protect imports and domesticCompetition between products, it is generally impossible to re-create the"lost competition opportunities", Moreover, generally can notcalculate and compensate for "lost trade." The impact of this ondeveloping countries is also particularly evident because these countries donot have sufficient economic strength to resolve the negative effects of complaintsagainst illegal measures during their "legal" presence.

3, the weakness of revenge

If the Respondent State does not withdrawthe measure deemed to be "inadmissible" by the DSB, the affectedState may take retaliatory measures commensurate with the loss suffered by it,that is, the termination of the concession in the WTO Agreement, Othercommitments. But history shows that retaliation is only effective betweencountries with considerable economic power, since it is first of allself-mutilation, which first causes damage to the repatriation country,especially in international trade relations.

4, huge expenses and operational technicalproblems

The WTO Dispute Settlement Mechanisminvolves many very complex and highly technical matters, and it is difficultfor developing countries to find legal experts who are competent in thecountry. This financial and human resource constraints are sufficient for thesecountries to use the mechanism to form a serious "soft control".These problems have caused developed and developing countries to face "aclear asymmetry in the choices" when seeking relief from the WTO.

According to the above analysis, we feelthat if we want to reverse the unfavorable situation in China's anti-dumpinglitigation, we must learn to use the WTO dispute settlement mechanismskillfully and flexibly. And now can do is based on the analysis of WTO disputesettlement mechanism in the existing case, through the case analysis familiarwith the whole process, so the WTO dispute settlement mechanism in the casestudy of China has an extremely important reference.

Third, the case analysis - EU and Indiacotton linen sheets anti - dumping dispute case 8

As of December 31, 1999, the WTO disputesettlement mechanism to deal with the 123 kinds of products involved, thehighest rate is the agricultural products, textiles and clothing, whichinvolves a total of 12 kinds of textiles and clothing, accounting for 9.6% 9.India and China belong to the developing countries, the textile and the twocountries are the bulk of export products, and India has participated in fivedisputes from the WTO dispute settlement mechanism, and accumulated someexperience. So I think the reference "Indian bed sheets case"approach to China has a greater reference value.

In this case, the author felt that thecontent of reference for our country mainly focused on the following twopoints:

1, India believes that the total number ofEC approaches has resulted in higher dumping margins than the method set forthin the 1994 Anti-Dumping Agreement (hereinafter referred to as the"Agreement"), which is inconsistent with Section 2.4.2 of theAnti-Dumping Agreement The

2, India has repeatedly stressed to the EC:as a developing country, bed linen exports and textile industry is particularlyimportant for India's domestic economy, the European Union has not inaccordance with the "anti-dumping agreement" Article 15 of thepreferential provisions for developing countries "carefully (Possibilitiesof constructive remedies provided for the use of thisAgreement shall beexplored) to impose anti-dumping duties.

Although the WTO expert group ruled thatthe EU has always adopted anti-dumping calculation method there areunreasonable and need to be modified. At the same time, however, the panel arguesthat Article 15 of the Agreement does not require the investigating authoritiesof developed countries to accept the price commitments made by developingcountries, but the EC is clearly aware of India's purely negative state ofcommitment Pass the violation of Article 15 of the Agreement. I think from thereport of the expert group to see the expert group that is more inclined to thedamage caused by dumping, rather than emphasize the status of developingcountries, rather than the previous scholars believe that the "betterreflect the interests of developing countries " "China is adeveloping country, after the re-clearance will enjoy the" agreement"to give preferential treatment to developing countries ... ... Article 15provides."

In the analysis of the case, we havefurther proved that if we want to rely too much on the status of developingcountries, the expectation of obtaining special interests in the special"care" of the developing countries from the WTO is not realistic. Weshould do is through a correct understanding of the WTO dispute settlementmechanism of the "rules of the game", actively and adept at the useof the mechanism, a fair and reasonable solution to China's accession to theWTO in the field of international trade dumping disputes, out of my past in thefield of anti- Passive situation, to maximize the benefits of China's accessionto the WTO, this is the right way to solve the pressure brought about byChina's accession to the WTO.

Fourth, China's anti-dumping lawsuit, whereto go?

Practice has proved that the WTO tradedisputes victory and defeat, involving the interests of the country and thewelfare of the people, WTO trade disputes, the country is concerned, once lost,the loss is not measurable by the figures, the corresponding market share maynot only be lost, To amend the law, to further open the market. Therefore, wemust pay attention to the anti-dumping lawsuit, make full use of our country asa WTO member's rights and fulfill the relevant obligations. In the face of the possiblepressure on China's anti-dumping lawsuit after WTO accession, I think that wecan work from the following five aspects:

1, the establishment of anti-dumpingmonitoring mechanism and corrective mechanism to achieve the effect of earlywarning.

In principle, all export enterprises maybecome the object of dumping, so I believe that with its passive response, itis better to establish a better anti-dumping monitoring mechanism. WTO membersare responsible for reviewing all factors that may cause damage to the domesticindustry. These factors include reductions and changes in demand, technologicalprogress or low levels of domestic industrial production and low capacity. Insome anti-dumping system, the domestic industry's own recession, may be seen asbeing damaged by dumping, as an excuse for anti-dumping measures. So ourcountry should pay attention to collect all aspects of information, to collectinformation, you can have a new anti-dumping investigation of the possibilityof risk assessment, the establishment of corrective mechanisms to limit exportsor adjust the export price, thereby reducing the risk of anti-dumpinginvestigations or Reduce the extent of damage. 12 At the same time, our countryshould also use the WTO dispute settlement mechanism more effectively andeffectively, such as making full use of GATT Article 23 "non-violationcomplaints".

Of course, does not advocate all disputesare v. DSB, frequent litigation regardless of human or financial resources inChina are unbearable, but China can use the WTO dispute settlement mechanism inthe "diplomatic means" to seek a timely solution.

2, the determination of the standard ofalternative countries

Anti-dumping measures as WTO trade policyinstruments allowed in the WTO framework will exist for a long time. AfterChina's accession to the World Trade Organization, its products and enterpriseshave been other countries or regions, anti-dumping investigations on thetreatment and status can not be quickly improved or changed. On the contrary, dueto China's accession to the WTO after the role of various tariffs or non-tariffbarriers completely disappeared or greatly weakened, other countries or regionswill be more dependent on anti-dumping measures under the WTO under thelegitimate measures to combat Chinese products to protect their industries,"From a global perspective, China's export enterprises anti-dumpingenvironment is likely to further deterioration."

We must admit that Chinese exporters facemore serious problems because he is not automatically seen as a market economy.I believe that the choice of a market economy countries to determine thedomestic price of Chinese products or production costs is a risky behavior, andwill never get the right results, because of its different products, not tomention the economic environment may be significant differences. Posted on thelook at the network http://www.kanzhun.com

In accordance with the "People'sRepublic of China to join the World Trade Organization Protocol" (the"Protocol"), foreign anti-dumping lawsuit against China, you canstill use third-country alternative prices. (Ii) "If the surveyed produceris unable to clearly indicate that the industry producing the same product isdominated by a market economy in the manufacture, production and sale of theproduct, Members of the WTO may use a method that is not strictly based on acomparison of domestic prices or costs in China. "Once this normal valueis set unreasonable, dumping is easily determined and China is more likely tolose in anti-dumping proceedings The

Therefore, our country in the WTO documentson this issue also made detailed provisions to prevent other members of the WTOabuse of this power, leaving the legitimate interests of our country damaged.Article 151 of the Report on China's Accession to the Working Group also hasrestrictions on the use of comparable prices:

(A) When the WTO importing countrydetermines the price comparability in certain circumstances without making abasis for strict comparison of prices and costs in China, the Member Stateshall ensure that it is clear and published in advance ... The

(B) WTO Member States should ensure thatthey are notified of their market economy standards and methods of determiningprice comparability prior to their implementation to the Anti-Dumping PracticesCommittee.

(C) The investigation process should betransparent.

(D) WTO member states should inform them ofthe circumstances they need and provide sufficient opportunities for Chinesemanufacturers and exporters to give evidence in writing for a particular event.

(E) WTO member importing countries shouldprovide Chinese manufacturers and exporters with a full opportunity to protecttheir interests in a particular event.

(F) WTO member States should providedetailed reasoning on their initial and final decisions in a particular event.

And this calculation method is not alwaysused forever, in the accession to the WTO agreement in Article 15 (d) clearlystipulates that "in China based on the WTO as a member of the national lawof the WTO to confirm that its economy is the market economy is the above ( Theprovisions of subparagraph (a) shall be terminated if the national law of thatmember contains the characteristics of a market economy at the time of itsaccession to the WTO ".

3, improve the relevant laws andregulations, establish a sound anti-dumping response and prosecution mechanism

The National Law of the People's Republicof China, as defined in Part IV of the Report on the Trade in Goods (B), Part13, Anti-Dumping and Countervailing Duties, The term 'national law' inparagraph (d) should be interpreted as including not only the law but also theordinances, rules and administrative regulations. Once the WTO, to comply withits package of agreements to ensure that domestic legislation, justice,administration and other aspects are not contrary to it is inevitable.

Judicial review is also the"anti-dumping agreement in 1994," provided by the necessaryprocedures, in contrast, China's "anti-dumping regulations" in the"review" and "review" are not the code referred to the"judicial review." Due to the non-retention of the WTO agreement, itis necessary to establish a judicial review system that is "completelyindependent of the authorities responsible for making the decision or reviewdecision" in accordance with the provisions of the Anti-Dumping Agreementof 1994, and establish and perfect the anti-dumping litigation system in Chinaas an imminent task The

4, with anti-dumping investigation

When the anti-dumping investigation begins,the exporter may refrain from cooperating with the investigation and intend totake measures such as lowering the export price to maintain its share in themarket or to use alternatives to its products to avoid any anti-dumping dutiesthat may be levied, Or change the origin of certain components of theirproducts to change their origin. Chinese exporters should be wary of thesepractices may be short-lived, and may even be poisonous, because this may leadto increased anti-dumping duties. Moreover, in fact, a lot of dumping chargescan be successful, not actively cooperate with anti-dumping investigations, notactively anti-dumping response, not only means that the loss of the market, butalso means that the loss of Chinese product reputation.

5, training a group of people engaged inanti-dumping response

In the new trading system, the nationalinterest is no longer through politicians but through lawyers and othertechnical experts to achieve. Developing countries can not wait negatively, butshould be actively prepared for new changes. Otherwise "even if theopportunity is equal, the result will not be equal." We should change thesituation of overly relying on foreign lawyers to deal with anti-dumping casesas soon as possible to speed up the development of their own talents.

V. Conclusion

, Through the WTO dispute settlementmechanism for text and case analysis, combined with China's anti-dumpinglitigation situation, and in accordance with China's accession to the WTOagreement made in the relevant commitments on China's use of WTO disputesettlement mechanism in recent years There may be some anti-dumping lawsuitagainst China and at the same time to mention anti-dumping lawsuit againstother countries to protect their own interests made some analysis and outlook.