A new US strategy on China, Copyright and the WTO?

Rogier Creemers

As the financial crisis is progressing, relations between China and the United States are becoming increasingly strained. As the US struggles to get its economy back on the rails, voices arguing that Chinese monetary and economic policies engender unfair consequences for US enterprises are growing in strength. On 20 October, the USTR filed a WTO case against China concerning anti-dumping measures on broiler products, as well as a GATS Article III:4 request for information concerning China’s Internet censorship policies.

This is not the first time that the US addresses Chinese censorship in the WTO. Most notably, it won the DS363 China – Audiovisual case, in which it was found that a number of Chinese media control measures violated WTO rules. However, this request for information is different. Rather than attacking substantive aspects of Chinese censorship policy, it asks China to provide more clarity about censorship procedure. More specifically, as the Great Firewall allegedly sometimes blocks the websites of US services suppliers, the US requests information about the criteria for blockage, the relevant ministries and decisionmakers, potential routes for appeal or redress, and the way domestic and foreign services suppliers are treated.

This action may have significant consequences. China’s censorship system is vague, opaque and complex, party because of domestic overlapping administrations, but also in order to ensure that websites aren’t tempted to explore the boundaries of what is permissible and to maximize discretion to intervene. However, if China does not satisfactorily answer the US questions, it may find itself confronted with a new WTO case. It can reasonably be expected that China will invoke national security as a justification for its censorship regime, which means that it may be necessary to come up with a WTO definition for this term.

In any case, this is a very clever move by the United States. By concentrating on procedural aspects, it avoids opening up the Pandora’s box that are substantive censorship rules. But more importantly, by concentrating on the commitments that China voluntarily made when joining on the WTO, China is forced to show its hand on committing to the rules-based international trading system.

Internship Possibilities at IGIR

The Institute for Globalisation and International Regulation currently has two vacancies for Academic Interns. Excellent students with good English language skills and a strong interest in international economic law (including international trade, investment and intellectual property) are invited to apply. Academic interns provide support to IGIR staff in their research and administrative activities. They work for a maximum of 8 hours per week. The position is unpaid, but interns benefit from involvement in IGIR activities such as the weekly research lunch meetings, annual PhD seminar, ongoing consultancy projects and professional training work. An internship at IGIR provides an excellent opportunity for students to familiarise themselves with this fascinating legal area and gain practical skills. Interested students are invited to send their CVs, grade lists and a letter of motivation to denise.prevost@maastrichtuniversity.nl. Shortlisted applicants will be invited for an interview.

ELSA WTO Law Moot Court Competition 2011-2012

The 10th edition of the ELSA WTO Law Moot Court Competition has been launched. The competition provides students with an interest in international trade law with an excellent opportunity to deepen their knowledge of this field of law and learn useful written and oral argumentation skills. The team from Maastricht University will be coached by Denise Prevost, Arkady Kudryavtsev and Iveta Alexovicova. Excellent students with good English language skills are invited to apply. Interested students may send their CV, grades list, a letter of motivation and a 1-2 page text analysing one chosen aspect of the case (as complainant or respondent) to Denise Prevost (denise.prevost@maastrichtuniversity.nl). The case will be available from 15 September at www.elsamootcourt.org. The deadline for applications is 22 September 2011: Shortlisted students will be invited for an interview.

IGIR PhD Research Seminar

On 16 September 2011, the Institute for Globalisation and International Regulation (IGIR) will hold its annual PhD Research Seminar. The seminar aims to provide an opportunity for first year PhD researchers in the field of international economic law to present their research proposals to others working in this field to obtain useful feedback in further developing and refining their research plans. There will also be the chance to interact informally with each other and exchange ideas and experiences. A final session will be held to introduce researchers to IGIR activities and to the role of IGIR research lunches in providing a forum for PhD researchers to subject their work to peer review. This seminar allows PhD researchers to engage in fruitful discussions and to learn from each other and from more experienced colleagues.

IGIR Brown Bag Lunch 5 October 2010 – Newsbriefs

For some time now, the US has accused China of undervaluing its currency, the yuan or renminbi (the people’s money). In this context, commentators have talked of a “currency war“. China has been keeping the value of its currency artificially low by buying large amounts of foreign currency, defying demands to allow the yuan to move towards a market-determined rate.
The US House of Representatives voted on 29 September with overwhelming majority in favour of new legislation, the Currency Reform for Fair Trade Act, targeting “unfair“ currency practices by certain unnamed countries. It views currency undervaluation as a form of ‘export subsidy’. In response, the Bill would authorize the White House to impose punitive tariffs in the form of countervailing duties on a variety of Chinese imports. Several news reports and interviews address this matter.

News Item: “EU-India Talks Progress; Study Warns About Access to AIDS Drugs“ (IGIR Brown Bag Lunch 5 October 2010)

(from Bridges Weekly Trade News Digest September 29, 2010, available at: http://ictsd.org/i/news/bridgesweekly/85787/ )

India would be the first leading developing country to accept higher intellectual property standards as promoted by several countries, such as the United States and the European Union. None of the other three BRIC or “Big Four” countries, being Brazil, Russia, India and China, have so far agreed to international agreements that included TRIPS-plus provisions. Particularly in the light of the failed consultations between India (respectively Brazil) and the European Union on the seizure of generic medicines in transit in European ports, it would be very surprising if India accepted provisions on border measures for goods in transit that are claimed to infringe patent rights in the country of transition, as proposed by the European Union in the latest draft of the intellectual property chapter.
While the implications for India are probably most concerning in the area of patent protection for pharmaceutical products, the EU-India FTA will encompass a variety of other IP areas, such as copyright and related rights, database protection, geographical indications, designs, trademarks, plant variety protection and the protection of traditional knowledge. Particularly the provisions on copyright and related rights as well as geographical indications and the protection of traditional knowledge call for close scrutiny: they contain new international standards which will have severe implications for India’s flourishing music and film industry, famous Indian agricultural food products and the abundant traditional knowledge in India.

By Anke Dahrendorf

News Item: “US Wants to Send Latest Tuna-Dolphin Spat with Mexico to NAFTA” (IGIR Brown Bag Lunch 5 October 2010)

(from Bridges Weekly Trade News Digest, Nr. 33, September 29, 2010, available at:http://ictsd.org/i/news/bridgesweekly/85790/)

It is really doubtful that the US will get any advantage in the case that the NAFTA panel finally decides that Mexico is obliged under the NAFTA rules to shift the dispute from WTO into NAFTA. Such a decision of the NAFTA panel, obviously, will not have much value for the WTO Panel, which is already established to solve the dispute. Neither may it force Mexico to shift the forum. On the other hand, the US, being a respondent in the present case, cannot start NAFTA litigation on the substantive issues itself. Thus, generally, the US move may be interpreted as an attempt to put further political pressure on Mexico, and, probably, even as a sign of their uncertainty about the results of the case in WTO. In any case, perhaps, for many trade lawyers it might be a bit disappointing if the US succeeds in pulling this case out of the WTO dispute settlement system, since it promises to become a landmark case on interpretation of important provisions of the TBT Agreement, applicable to technical regulations and standards.

By Arkady Kudryavtsev