Law and policy: PRC export restrictions underthe WTO compared with US export controls

Abstract

Following China’s accession to the WTO, a series of trade frictions and issues on non-automatic export licensing have been triggered between the PRC and the US. Moreover, the US has launched a global campaign against the PRC by means of US re-export controls towards the PRC and WTO cases concerning PRC export restrictions on various minerals as raw materials. In practice, it has become increasingly important to resolve such disputes and issues in a WTO forum. However, relevant studies still seem to be quite limited.

This thesis undertakes comparative analyses as its cardinal methodology. The political economy of trade policy is applied as the basic analytical approach for policy analysis, while linguistic analysis and case study are used in the legal analysis. In addition, historical review, document study, participant observation and individual interviews are employed in both legal and policy study.

As the central argument of this thesis, under WTO law the inadequacies of PRC export restrictions need improving in order to facilitate trade; while the excessive national discretion of US export controls needs constraining in order to liberalise trade – both in the direction of consistency with WTO law. This central argument indicates the final conclusions of the comparisons among PRC export restrictions, US export controls and the related WTO law. As concluded, PRC export restrictions are weaker than US export controls in transparency, rationality and neutrality in legal principle, the “both and separately” legislative mode, regulatory authorities, openness of regulatory procedures and regulatory criteria, complicated regulatory instruments, and the objectivity, impartiality and promptness of the administrative reconsideration and administrative litigation procedures. The PRC needs to improve these aspects of its weaknesses in trade facilitation in order to comply with the relevant WTO disciplines. Compared with the PRC, the US has much policy discretion in its coherence with WTO law because US export control policy seems to be less influenced by GATT/WTO; the domestic effect of the WTO law has been dramatically weakened by opposing domestic political voices in the US; and the regulatory reasons for US export controls seem only to be partly and conditionally justifiable under WTO security exceptions. In these aspects, the US is advised to constrain its excessive national discretion in order to be consistent with WTO law and to liberalise trade.

As the central argument continues to claim, the aforesaid improvements in PRC export restrictions and US export controls may identify and correct the inconsistencies of both with WTO law, and provide solutions for Sino-US trade frictions and issues on non-automatic export licensing and for other issues and frictions in a US global campaign against the PRC in the WTO forum. This may contribute to the stabilisation of Sino-US trade relations and the world trading system. The relevant research gaps can also be filled, and a significant theoretical contribution to this research field can be made.