TERM PAPER

(INTERNATIONAL TRADE LAW)

WRITTEN SUBMISSION

Research Topic:

Critically analyze the following article and a case law:

1. “China’s Compliance with WTO Transparency Requirement: Institution-Related

Impediments”

2. United States - Import Prohibition Of Certain Shrimp And Shrimp Products.

SUBMITTED TO: MA’AM MUNAZZA RAZZAQ

SUBMITTED BY: MAHNOOR PARACHA

(2016-LLB-007)

DATED: 9-November-2020

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TABLE OF CONTENTS

ABSTRACT…………………………………………………………………………4

ANALYSIS………………………………………………………………………….5

UNITED STATES - IMPORT PROHIBITION OF CERTAIN SHRIMP AND SHRIMP

PRODUCTS………………………………………………………………………..6

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LIST OF ABBREVIATIONS:
WTO World Trade Organization

Art. Article

Govt. Government

TRM Transitional Review Mechanism

TPRM Trade Policy Review Mechanism

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ABSTRACT

This article examines the organization-related obstacles to China’s conformity with WTO
transparency requirements provided in GATT Article X. To ensure China’s compliance with the
transparency prerequisite poses an extra challenge to the WTO in their efforts to maintain this balance,
as China’s executive legal system was not designed for transparency. Some WTO-plus obligations
concerning transparency—i.e. commitments that go beyond the regular WTO rules—have been
imposed on China in its accession agreements. Those WTO-plus obligations are designed with the
intention that whenever WTO rules are insufficient, the WTO-plus obligations will fill the gap and
improve China’s compliance periodical requirements.

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ANALYSIS

WTO law requires government to maintain a certain level of transparency. Government Article
X mainly represents and secures the principle of transparency regarding regulations and judiciary
decisions. But it is also intrusive to the domestic regulation domains.

Part II of this article aims to contribute towards efforts to rethink whether imposing WTO-plus
obligation is valuable strategy towards enhanced compliance and outlines the transparency
requirements the WTO agreement and also sketching China’s commitment on transparency.

As Article XI sets out the general publication requirements while X states that no measures of
General application may be enforced before officially publicized. Article X requires WTO
members annually to inform the WTO council for trade in service and also establishes one or
more enquiry point for providing specific information to other members.

In short, the transparency obligation agreements are drafted restrict minimizing standards for
domestic transparency in China for years. The large body and diversity of the country have made
it difficult for the foreign business.

The accession protocol includes the heading administration of trade regime but it creates a great
burden for China than for other WTO members. There are four main aspects in China’s WTO
plus obligation.

The 1st relates to the publications regulations and measures in respect of trade. Secondly, the
central point to which enquiries might be directed and this goes beyond Art. X.

Thirdly, it concerns for the right to comment and the final relates to “TRM” established by WTO
to increase transparency.

In China, the legislative and administrative governmental bodies both have the power to issue
legislative document. Lubnan explained the allocation of rule making powers by agencies in
China is major structural problem.

In short, the chronic disorder in Chinese legislation composed of intervention provisions and
conflicting legal authority. In addition, there is another body of rules that plays a significant role

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in regulatory regime and has general binding force on all activities such as decisions, notices and
provisions.

In China administrative activities are divides into abstract administrative activities. Under
Chinese law only, only specific activities remedied by legal means while the administrative
review mechanism has been exhausted. Consequently, we can say that the difficulties in China’s
compliance with WTO transparency requirement are deeply embodied in its complex legislative
structure and informal laws.

UNITED STATES - IMPORT PROHIBITION OF CERTAIN SHRIMP AND SHRIMP

PRODUCTS.

1. MEASURE AND ITEMS AT ISSUE

Measure at issue: US import bar of shrimp and shrimp goods from non-certified nations (i.e.
countries that had not utilized a certain net in contagious shrimp).

Product at issue: Shrimp and shrimp products from the complainant countries.

2. SUMMING UP KEY PANEL FINDINGS

2.1. GATT Art. XI (ban on quantitative limitations):

The violation of Article XI was found by the panel on importing shrimp and shrimp goods, based
on section 609. Violation of Article XI was accepted by the United States the measure's because
no defensive arguments were presented in this regard.

2.2. GATT Art. XX(g) (general exceptions – exhaustible natural resources):

It was held by the Appellate Body that the US import ban was related to the preservation of
exhaustible natural resources and, as sheltered by an Art. XX(g) exception, due to the ban
constituted there is no justification under Article. XX .

Conclusion results in the Appellate Body contemplated, inter alia, that in its function the measure
was “indefensibly” prejudiced because of its planned and genuine coercive result on the definite
strategy decisions made by overseas governments that were Members of the WTO.

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Arbitrary discrimination was also constituted, due to firmness and rigidity in its application, and
be deficient in transparency and practical justice in the supervision of trade policy. The Appellate
Body, however, upturned the Panel's legal analysis of Art. XX. The proper chain of steps is to
first review whether a measure can be conditionally acceptable as one of the categories under
paras. (a)-(j), and, then, to further evaluate the same measure under the Art. XX chapeau.

3. OTHER ISSUES
3.1. Amicus curiae briefs:

It was held by the Appellate Body that it could think amicus curiae briefs attached to a party's
submission since the attachment of a brief or other material to either party's submission renders
that material at least prima facie an integral part of that party's submission. Based the Appellate
Body overturned the Panel on the same rationale and passed an order that a panel can either
“reject or accept the submitted information” under DSU Arts. 12 and 13.

4. MEASURE TAKEN TO COMPLY WITH THE DSB RECOMMENDATIONS

AND RULINGS

For the execution of section-609 revised guidelines are being provided, which exempted certain
countries from the import prevention on shrimp according to the provided criteria

5. KEY FINDINGS
5.1. GATT Art. XI

It was concluded by the Panel that, the US import prohibition on shrimp and shrimp products
under Section 609 was contradictory with Art. XI:1.

5.2. GATT Art. XX(g) (general exceptions – natural resources):

The Appellate Body upheld the Panel's finding that Section 609, as implemented by the revised
guidelines and as applied by the United States, was acceptable under Art. XX(g), as

(i) is related to the preservation of exhaustible natural resources as set out in Art. XX(g)
and

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 (ii) it now met the conditions of the chapeau of Art. XX when applied in a manner that
no longer constituted a means of arbitrary inequity. This was because good faith and
serious efforts were made by US had made to confer an international agreement, and
the new measure allowed “sufficient flexibility” by requiring that other Members'
programs simply be “comparable in effectiveness” to the US program, as opposed to
the previous standard that they are “essentially the same”.

In this regard, Malaysia's contention was rejected by the Appellate body and decided with the
Panel that US is under the responsibility to make best efforts for the negotiation international
agreement regarding the safety of sea turtles, not an obligation to conclude such an
agreement because avoiding “arbitrary or unjustifiable discrimination” was requirement of
the United States to under the chapeau was to make available all exporting countries
“comparable opportunities to negotiate” an international agreement. It was noted by the
Appellate body that “as similar efforts are made, it is more possible that 'arbitrary or
unjustifiable discrimination' will be avoided between countries where an importing Member
agrees with one group of countries, but fails to do so with another group of countries”

6. OTHER ISSUES:
6.1. TERMS OF REFERENCE (DSU ART. 21.5 PANELS):

It was concluded by the Appellate body that, when the issue concerns the consistency of a
new measure “taken to comply”, the task of a DSU Art. 21.5 panel “is to consider that new
measure in its totality”, which requires a consideration of both the measure itself and its
application. It was further stated that the that the panel’s task was to decide whether Section
609 has been functional, through the Revised Guidelines, either on their face or in their
application, in a manner that constitutes 'arbitrary or unjustifiable discrimination'”. It was
founded by the appellate body found that the mandate was completely fulfilled by the Panel
due to examination in the light of the relevant provisions of the GATT and by correctly using
and relying on the reasoning in the original Appellate Body report.

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