China’s status in the WTO will attract increasing attention over the next few weeks and months. Not only has recent Twitter activity from the U.S. President-elect drawn attention to long-standing arguments over whether China has really lived up to the conditions of its accession agreement, but Dec. 11 marked the 15th anniversary of that accession.
According to Beijing, this anniversary marks the point at which China automatically gains ‘market economy status’ within the WTO, thus constraining the potential use of anti-dumping measures against China by the U.S. and the EU, who are holding out against such recognition.
Steelworkers hold placards as they protest in front of the European Commission building during a demonstration of steelworkers around the EU quarter of Brussels on Monday, Feb. 15, 2016. Thousands of steel workers from across the European Union demonstrated against the import of cheap Chinese products and warned EU leaders not to acerbate the situation by granting Beijing market economy status. Sign reads ‘Stop China Dumping’. (AP Photo/Virginia Mayo)
Devil in the Detail
A closer look at the treaty reveals this to be a generous interpretation, but not without some justification. In fact, Article 15 of the treaty provides importers with the means to enact anti-dumping measures according to two broad approaches. First of all, and generally, “the importing WTO Member shall use Chinese prices or costs for the industry under investigation in determining price comparability.”
However, in Paragraph (a), subsection (ii), it states that ”he importing WTO Member may use a methodology that is not based on a strict comparison with domestic prices or costs in China if the producers under investigation cannot clearly show that market economy conditions prevail in the industry producing the like product with regard to manufacture, production and sale of that product.”
Clearly the agreement was written to incentivize China to ‘show that market economy conditions prevail’ before anyone was obliged to treat them as a ‘market economy’ when considering whether China was guilty of ‘dumping’ or not. Until they do so, foreign importers are allowed under WTO rules to compare prices and conditions in China to those in other countries when assessing the nature and extent of any suspected dumping practices. The alternative, using Chinese prices, makes the foreign importer dependent on information provided by China, and might make it harder — though not impossible — to demonstrate unambiguously that dumping is actually taking place.
‘Market Economy Status’ is Not Automatic
Until now, the onus was on the Chinese producer to prove that ‘market economy’ conditions prevailed in that particular sector in China. But there is a further clause — Article 15 (d) — in the agreement that states ”the provisions of subparagraph (a)(ii) shall expire 15 years after the date of accession.”
Now, therefore, China are demanding that they be recognized as a ‘market economy’ in line with their interpretation of the agreement. Unfortunately this is not, technically, what the agreement says. China is, however, correct that the agreement should limit the ability of foreign importers to use non-Chinese prices as a reference point for their anti-dumping actions.
In other words, the mere fact that 15 years have passed since the signing of the agreement should entail that the methodology by which foreign importers are permitted to calculate whether dumping has taken place is constrained, but there is no automatic provision for China to be accorded ‘market economy’ status.
Indeed, if China were to be considered a ‘market economy’ the relevant importer would be forswearing the need for anti-dumping measures altogether, which, in the current climate, is unlikely to happen.
More importantly, according to the agreement, there is no basis for it to happen. The onus remains on China to prove that it is a ‘market economy’. Indeed, the fact that China have been simply running out the clock on Article 15 could be taken as evidence in itself for the fact that China is not a ‘market economy.’ They have had 15 years to demonstrate that they are a ‘market economy’ after all, and even today it may be arguably true of some sectors, but it is not — on the whole — taken seriously.
Chinese President Xi Jinping (right) shakes hands with Director-General of the World Trade Organization (WTO) Roberto Azevedo to the G20 Summit at the Hangzhou International Expo Center on September 4, 2016 in Hangzhou, China. (Lintao Zhang/Getty Images)
Furthermore, it should be noted that many countries have granted ‘market economy status’ to China, although they tend to be countries that export to China under a Free Trade agreement. In each case, the granting of ‘market economy status’ was a consequence of diplomatic agreement rather than technical proof, and even these countries still apply anti-dumping measures on Chinese products. Australia, for example, recognized China as ‘market economy’ as long ago as 2006, yet still applied anti-dumping measures on Chinese steel earlier this year.
The difficulty China will face is that this rather technical issue will now simply be added to the great number of other disputes over whether China has actually lived up to the conditions in its WTO accession agreement. These are detailed annually in a report to U.S. Congress by the U.S. Trade Representative (December 2015 edition can be downloaded here, 2016 edition pending).
There is, however, the prospect of diplomatic pressure coming from China at being refused ‘market economy’ status: threats even of a ‘trade war’ from some quarters. Nevertheless, given the wider climate in which China’s trading relations are coming into question, this issue may have to take its place in a long line of ongoing problems with a diminishing likelihood of resolution. In any event, China is not a market economy and there are limits to the ability of diplomacy to turn fiction into fact.