By Justin Kirschner
The “mother
of all trade issues” will come to a head by the end of this year: is China
a market economy under the WTO and who gets to make that decision? The answers
to those questions have far-reaching economic and political ramifications.
Though the purpose
of the WTO is to facilitate a reduction of trade barriers between its
members, the WTO explicitly permits its members to levy anti-dumping duties. An
anti-dumping duty is a temporary duty on imported goods imposed on a foreign
firm when the foreign firm “dumps” products on the importing member’s market. A
product is dumped
when it is “introduced into the commerce of another country at less than its
normal value” so as to cause or threaten to cause material injury to the
domestic industry in the importing country. The consequent anti-dumping duty an
importer may impose can be as high as the dumping
margin, which is the difference between the actual price of the imported
good and the normal value of the good. Generally, a product’s normal
value is equal to the value of the product in the ordinary course of trade
in the home market of the exporting country.
However—and this is the heart of the issue with China—under
the addendum to GATT Article VI, when the exporting
country is a non-market economy, normal value may be calculated by other means
because the state-controlled nature of the home market would create a normal
value that is not “normal” but is artificially low. The resulting higher normal
value creates a higher dumping margin, which in turn permits the importing
country to slap the exporting firm from a non-market economy with a higher
anti-dumping duty.
When China acceded to the WTO in 2001, its accession
protocol contained a unique provision that allowed other members to treat
it as a non-market economy and made it hard for that designation to change. While
exporters generally enjoy a presumption of market economy status until the
importer can prove otherwise, China is presumed a non-market economy unless it
can prove otherwise for a particular industry. And while other
members may only be deemed a non-market economy under a strict definition,
China will remain a non-market economy unless
the importer’s “national law” deems China a market economy. In other words, for
China, the importer subjectively determines the definition of market economy
and subjectively decides whether or not China meets the criteria. Those
definitions tend to be restrictive. For example, under U.S. law, a country
must satisfy six criteria in order to be a “market economy” and the executive
branch has wide discretion to decide if the standards are met. Under EU
law, there are five requisite criteria. So while for most WTO members, the
door to the market economy club is wide open and the space inside is expansive,
for China, when it comes knocking on the market economy club, it is met at a
small door by large bouncers.
Market economy distinction from some of its largest
trading partners is economically important to China because it could help
solve the manufacturing over-capacity problem that plagues
its economy. Because Chinese manufacturers operate within a non-market economy,
they may be reticent to export to countries that do not recognize China as a
market economy because of the resulting threat of exposure to a large volume of
higher anti-dumping duties. Receiving market economy status without any actual
change in domestic economic conditions will be like releasing a pressure valve
because the threat of anti-dumping duties will decrease, thus freeing Chinese
exporters to sell more goods abroad. This could ease the problems of over-capacity
by bringing demand in line with supply.
And it is not just about economics for China. Indeed it
might be as much or more about the positive political
symbolism that comes with market economy status.
China
says the bouncers have already agreed to let it into the market economy
club on a certain date. It argues that section
15(d) of its accession protocol is a sunset provision on its non-market
economy status. Fifteen years after China’s accession—that is, on December 11,
2016—the provision that permits importing countries to calculate the normal
value of imported goods based on something other than a “strict comparison with
domestic prices” will expire. China says this means that on that date, other
members must recognize China as a market economy.
WTO members are
inconsistent in their current treatment of
China and in their interpretation of its accession protocol. Some members, like
Australia
in 2003, voluntarily recognized China as a market economy as part of negotiating
a free trade agreement. The European
Commission’s official position appears to be that China’s accession
protocol does not require it to recognize China as a market economy, though the
Commission nonetheless
plans, at some point this year, to recommend to member states whether or
not to vote to recognize China as a market economy. German
Chancellor Merkel appears cautiously amenable to the idea, while Italy
and big manufacturing interests are opposed, fearing that Chinese market
economy status will kill European industries.
The
US maintains that it need not and will not recognize China as a market
economy in December 2016, plotting instead a plan of inaction that would force
China to challenge its non-market economy status through the WTO dispute
settlement mechanism.
Because of the subjective freedom for the executive branch,
especially in the U.S., to deem China a market economy, this arcane legal issue
has become a complex diplomatic game. If the EU and U.S. do not recognize China’s
market economy status, they will have foregone
potential Chinese concessions they could have elicited in return for the
greater market access that market economy status would grant. But if
negotiations were held, concessions might not materialize. China may hold the
stronger negotiating position because it thinks it would win a case at the WTO,
thus making a “no deal” acceptable to them.
The U.S. apparently is willing to roll the dice and punt
this issue to the WTO dispute settlement mechanism. Europe’s conclusion is
harder to read, though it points
toward eventual market economy recognition. Massive trading partnerships
with China are at stake for both. Between now and December, the international
trade world will watch to see how this legal, economic, and political showdown
is resolved.
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