Abdulkadir Yilmazcan on The Slow Train to Reforming Anti-Dumping Measures (Amicus Curiae)

"The Slow Train to Reforming Anti-Dumping Measures"

Abdulkadir Yilmazcan (PhD graduate)

Amicus Curiae

Series 2, Vol 3, No. 2, pp. 335-360
Published in 2022

Abstract: This essay examines the need for and slow progress towards a revision of the Anti-Dumping Agreement, but they are without positive outcomes. Several reasons account for this failure such as the deadlock in the Doha Development Round, mega trade agreements and the willingness of top anti-dumping users to engage in meaningful reform. In this paper, alternative solutions are proposed to settle the hidden trade protectionism in anti-dumping investigations. Normative solutions include a comprehensive reform of the Anti-Dumping Agreement. Such a revision has already been suggested in the literature, but this study departs from most others by prioritizing procedural issues rather than substantive ones. The study proposes changes to enhancing procedural justice in anti-dumping processes.

CL Lim on Trade Law and the Vienna Convention's Systemic Integration Clause (new book chapter)

"Trade Law and the Vienna Treaty Convention's Systemic Integration Clause"
CL Lim
in J Chaisse & TY Lin (eds), International Economic Law and Governance (OUP 2016) ch 8

Introduction: Professor Mitsuo Matsushita has shown an abiding interest in the systemic problems faced by the multilateral trading system. I recall his interventions on GATT Article XX and, in particular, his keen interest in the challenges posed by regional trade agreements (RTAs). He has spoken often about the RTA problem during events held by the Asia WTO Research Network over the past decade. This tribute to him discusses Article 31 (1) (3) (c) of the Vienna Convention on the Law of Treaties (VCLT), or the ‘systemic integration clause’, in light of his concerns. 

     Article 31 (3) (c) has been discussed in the WTO jurisprudence. Panels and the Appellate Body have occasionally had to address questions about the integration of the WTO legal order with WTO Members’ other international legal obligations. But – with some notable exceptions – it is an issue that could benefit from greater attention still. Such benign neglect may be questioned, since this clause could provide a broader approach to external norms than Article XX’s General Exceptions Clause in resolving conflicts between WTO and non-WTO treaties, and between WTO treaty norms and a whole range of non-treaty-derived norms. The utility of the clause in dealing with conflicts between WTO and RTA rules has been a subject of special neglect. 

     The Vienna Convention’s ‘systemic integration clause’, as we shall call it, read together with the Appellate Body’s famous pronouncement in US – Gasoline that the GATT is not to be read in clinical isolation from public international law, deserves close attention as the multilateral trading system continues to grapple with non-trade regulatory issues and the increasing complexity of the WTO’s interrelationship with the RTAs. However, while the existence and applicability of the systemic integration clause in the WTO acquis has been acknowledged and upheld by the Appellate Body, the full manner in which it could be ‘operationalized’ to borrow Philippe Sands’ terminology, remains a matter of conjecture. Part of that difficulty lies as I have said in an incomplete exploration of the clause itself in the trade literature, but it also lies in the clause’s very narrow application thus far in the WTO’s case law.

CL Lim Interviewed on the Next Global Trade War with China (Reuters)

"Trade rows brew as China helps home team tackle slowdown"
Michael Martina and Tom Miles
Reuters
11 December 2015

China is sowing the seeds of a global trade war as its smelters, refiners and manufacturers increasingly export goods they can't sell into a slowing domestic economy, prompting accusations of dumping and unfair subsidies from its trading partners.

     With China's exporters already gaining a competitive edge from its weakening currency, global metals producers are crying foul over Beijing's plans to cut export taxes, and the United States is complaining that a raft of government subsidy programmes disadvantage rival producers.

     Beijing hopes to gain market economy status under World Trade Organization rules a year from now, which would force trading partners to use China's domestic prices instead of a third party's to assess if it is exporting below market value, and it has warned that it will fight back if countries continue to resort to anti-dumping duties.

     Chin Leng Lim, a trade expert and professor of law at the University of Hong Kong, said a combination of factors could stoke trade tensions to a pitch not seen since the global financial crisis.

     "You've got a slowing economy in China, a huge push on exports, a pushback on the part of producers in the United States and an election looming, while there is a question hanging around some of the rules of the game. It's going to be exciting," Lim said.

     Growth in the world's second-largest economy has slowed to a 25-year low, hitting demand for industrial raw materials like steel and copper, so domestic producers are looking to sell their surplus on a saturated global market... Click here to read the full article.

New Book: International Economic Law after the Global Crisis

International Economic Law after the Global Crisis: A Tale of Fragmented Disciplines
Editors: CL Lim and Bryan Mercurio
Cambridge University Press
April 2015, 557 pp.

Description: This collection explores the theme of fragmentation within international economic law as the world emerges from the 2008 global financial crisis, the subsequent recession and the European sovereign debt crisis which began in early 2010. The post-crisis 'moment' itself forms a contemporary backdrop to the book's focus on fragmentation as it traces the evolution of the international economic system from the original Bretton Woods design in the aftermath of the Second World War to the present time. The volume covers issues concerning monetary cooperation, trade and finance, trade and its linkages, international investment law, intellectual property protection and climate change. By connecting a broad, cross-disciplinary survey of international economic law with contemporary debate over international norm and authority fragmentation, the book demonstrates that this has been essentially a fragmented and multi-focal system of international economic regulation.  Contributors: CL Lim, Bryan Mercurio, Rolf H. Weber, Elisabetta Cervone, Emilios Avgouleas, Douglas W. Arner, Ross P. Buckley, An Hertogen, Junji Nakagawa, Shin-yi Peng, Martins Paparinskis, Anita K. Krug, Julien Chaisse, Juan Ignacio Stampalija, Antoine Martin, Tania Voon, Andrew Mitchell, James Munro, Lorand Bartels, Rafael Leal-Arcas, Andrew Filis.  

     Professor Lim is a member of the Global Advisory Board of the Center for International Investment and Commercial Arbitration which was recently launched in Lahore, Pakistan.  

CL Lim on the recent US suit against China in the WTO

"U.S. challenges Chinese exports subsidies"
Reuters (Washington)
12 February 2015

The United States on Wednesday launched a legal challenge to Chinese subsidies supporting billions of dollars of exports across a wide swathe of industries from steel to shrimp.  U.S. Trade Representative Michael Froman said Chinese companies in designated export hubs benefited from free or subsidized services, cash grants and other incentives which gave their products an unfair advantage.  The request for consultations, lodged on Wednesday, is the first step in a World Trade Organization dispute. The administration has also been trying to convince lawmakers, in particular Democrats, to support a new 12-nation Asia-Pacific trade deal and a bill to streamline Congressional passage of trade deals... Chin Leng Lim, a law professor at the University of Hong Kong, said Washington's case fitted a rising trend of using anti-subsidy action as the new trade weapon of choice. As China prepares to get market economy status in 2016 under its WTO accession agreement, it will be harder to bring anti-dumping cases against Chinese companies. "When the allegation is unfair subsidization, you've got to remember that you're not just going after companies abroad for behaving unfairly. You're going after an entire foreign economy for being run differently," Lim said.  Click here to read the full article.

Zhao Yun in New York on Trade Disputes Between the US and China

Prof Zhao Yun, Director of the Centre for Chinese Law will be speaking on a panel at Brooklyn Law School on trade disputes involving the United States and China on 21 January 2015.  About the Program: The United States and China are major trading partners. Trade issues between the two nations take center stage as leaders negotiate new trade treaties and struggle to resolve disputes under existing legal frameworks. Brooklyn Law School and the Chinese Business Lawyers Association present an evening of dialogue among leading practitioners and professors who will examine current issues in trade disputes between the U.S. and China. Other speakers include two judges from the US Court of International Trade, partners from two leading law firms handling China trade disputes, professors from four law schools, former chairman of Federal Trade Commission, former congressman focused on US-China trade, and a former general counsel of MasterCard.

New Issue of Hong Kong Law Journal (Part 3 of 2014)

Hong Kong Law Journal Vol. 44, Part 3 of 2014 Table of Contents Comment  Realising Universal Suffrage in Hong Kong After the Standing Committee’s Decision  Simon NM Young  689  Analysis Gross Negligence Manslaughter After Lai Shui Yin  John Adams Leung and Hin Ting Liu  709  Business Review in Directors’ Report: New Companies Ordinance Requirement  Stella So, Janet Kwan and Annie Ko  719  Disclosure of Price Sensitive Information – The Peculiar Case of the MTR Corporation  Chee Keong Low and Tak Hay Low  735  Lectures  When Will the Court Grant Relief for Trustees’ Mistakes? Pitt v Holt and Futter v Futter  Robert Walker  759  The Strengths of the Common Law  William Gummow  773  Institutional Integrity and Public Law: An Address to the Judges of Hong Kong  James Spigelman  779  Articles Financial Planning for Mental Incapacity: Antiquated Law in a Modern Financial Centre  Lusina Ho  795  Storm in a Milk Bottle: WTO Consistency of Hong Kong’s Export Barrier on Powdered Formula  Kelly Kuan Shang  809  China Law  Land Registration, Property Rights and Institutional Performance in China: Progress Achieved and Challenges Ahead  Lei Chen  841  The Perpetual Dance: Interpreting “One Country, Two Systems” Through the Lens of Tongbian Dialectics  Jason Buhi  865  The Logic (or Illogic) of China’s Local Government Debts Out of Control – Law, Governance or other Perspectives  Shen Wei  887  Recidivist Thieves and Amnesties in Qing Law  Geoffrey MacCormack  917  Book Reviews  Introduction to the Hong Kong Basic Law, Danny Gittings, I Grenville Cross SC  961  Practising Self-Government: A Comparative Study of Autonomous Regions, Yash Ghai and Sophia Woodman (eds), Shucheng Wang  965  Comparative Perspectives on Criminal Justice in China, McConville M and Pils E (eds), Na Jiang  969

Click here to read the abstracts.