Abstract: The paper analyzes the empirical data of the three East Asia countries in the application of WTO dispute settlement mechanism, the specific roles as complainant and respondent, as third party, and the situations in implementation of DSB rulings and recommendations, concluding that the three countries are active in the DSB mechanism though in different levels, points some similar defects in application of it by the three countries, and provides some observations to enhance the application of dispute settlement mechanism and harmonization the steps internationally and regionally.
Key Terms: Dispute settlement Panel Procedure Appellate Procedure WTO DSB

Introduction

 

As the successor of the international organization de facto General Agreement on Tariffs and Trade (hereinafter refer to as “GATT”), the World Trade Organization (hereinafter refer to as “WTO”) has established and operated well dispute settlement mechanism for international trade at the very beginning of the international organization de jure. The WTO dispute settlement mechanism is both important for the organization and it’s members. Without the dispute settlement mechanism, the organization may face great difficulty for discipline, and the WTO members may find the organization is lack of attractiveness.

The WTO has received four hundred twenty four cases of complains on trade disputes till this month since 1995 when the dispute settlement mechanism was established.[1] Though the number of cases is huge, but different countries played different roles in the mechanism. Some of the WTO members are very active in apply the mechanism to protect their trade interests, such as The United States and the European Union.[2]

Historically, the East Asia area have shared similar cultural tradition for thousands year, but the paths choosing for national development were different when they confronted the challenges and pressure from the west in the middle of nineteenth century. The three East Asia countries, China, Korea and Japan, encouraged international trade in their economic development in these thirty years, even before the WTO’s establishment.

What are the roles of the three WTO members in the East Asia in the WTO dispute settlement mechanism? What are the factual situations of the application of the mechanism by the three WTO members, especially in the different procedures? Do they share the similar attitude in the WTO dispute settlement? Can they take harmonized steps in the trade dispute for regional benefit? All these question need to be explored further for the efficient application of the dispute mechanism in the largest trade organization in the world.

The author tries to answer the abovementioned questions in this paper. The analysis in this paper will limited to the Mainland China, Korea and Japan’s application the WTO dispute settlement mechanism, since Mongolia haven’t complained or been complained in any cases till the year of 2011. [3] This paper is mainly composed of three parts. The first part analyzes empirically the three countries’ roles as complainant, the second part analyzes their roles as respondents, and the last part is on their application of enforcement of the result of the case. In the conclusion, the author makes his observation and proposals on the East Asia’s application of the WTO dispute settlement mechanism.

I. China, Korea and Japan as Complainants and Respondents in the WTO Dispute Settlement

A preliminary glance of the statistic numbers of the three members in the WTO dispute settlement easily shows an interesting coincidence, all the cases involved them are twenty-nine cases respectively. This coincidence reflects to some extent that the three countries have the similar attitude in the application of the WTO dispute settlement mechanism, though the specific situations are slightly different in the three countries. The agreements and subjects covered shows more difference in different countries, which may reflects the different concerns in the three WTO members respectively.

A. China

China acceded to the WTO in 2001 after almost fifteen year “long-marching” negotiation from the pre-WTO stage of GATT in 1986.[4] China gave weight to international trade in the economic development after 1979 when open policy and reform were carried on by the state. This concern stimulated China to accede to the WTO even after failing of the resumption of her status in the GATT. China was the sixth biggest trade country in 2001, and ranked second in 2010, witnessing a rapid trade progress within ten year in the WTO.[5] Fast trade development might stir dispute with trade partners.

This chart shows the trade disputes involved China in these eleven years according to the series number of the disputes in the WTO regardless the same case in different series number:[6]

Chart 1. Type A: Overall Figures

 

Year	China as Complainant	China as Respondent	Total
2001	0	0	0
2002	1	0	1
2003	0	0	0
2004	0	1	1
2005	0	0	0
2006	0	3	3
2007	1	4	5
2008	1	5	6
2009	3	4	7
2010	1	4	5
2011	1	0	1
Total	8	21	29

 

The chart discloses the following information:

Firstly, China was complained much more than her complaining. The number of complains against China is almost three times higher than China’s complaining, which means the WTO members as counterparty concerns China’s trade development and trade measures adopted.

Secondly, China involved in the disputes constantly from the year of 2006, which means that China is major player in the WTO dispute settlement both as complainant and respondent.

Thirdly, China wasn’t complained by the other countries before the year 2004, which is just a temporary and illusive phenomenon of the transition period from 2001 to 2004 under the restriction of the Protocol on the Accession Of the People’s Republic of China. Given the fact that China was complained in March 2004, the early period of the year, it’s obvious that the United States prepared to complain China in the WTO even before the year of transition period ended.

If we add more information of all the WTO disputes by year, we might see more clear that China was on the most concerned countries in the eyes of trade partners.

Chart 2. Type B: Percentage

 

Year	Cases involved China	Total Cases in the Year	China’s Percentage
2001	0	27	0
2002	1	37	2.7%
2003	0	26	0
2004	1	19	11.1%
2005	0	11	0
2006	3	21	14.3%
2007	5	13	38.5%
2008	6	19	31.6%
2009	7	14	50%
2010	5	17	29.4%
2011	1	5	20%
Total	29	205	14.2%

 

Though the average percentage is about 1/7 comparing China’s involvement and the total cases in this eleven years, but it can be seen that China was involved almost 1/3 of all the WTO cases in recent five years, from the year 2006 to last year, and the highest year is 1/2 of all the cases. In the first half of this year, the number is 1/5 comparing China’s involvement and the total cases.

The above analysis reaches the conclusion that China is not only a key country in the world trade, but also a major player in the WTO dispute settlement mechanism. It may affect greatly in these areas.

The areas China involved in the cases show another facet of China’s role in the trade disputes:

Chart 3. Type C: Area

Year	China in Goods Disputes		China in Service Disputes		China in IP Disputes
	As Complainant	As Respondent	As Complainant	As Respondent	As Complainant	As Respondent
2001	0	0	0	0	0	0
2002	1	0	0	0	0	0
2003	0	0	0	0	0	0
2004	0	0	0	1	0	0
2005	0	0	0	0	0	0
2006	0	3	0	0	0	0
2007	1	2	0	1	0	1
2008	1	2	0	3	0	0
2009	3	4	0	0	0	0
2010	1	3	0	1	0	0
2011	1	0	0	0	0	0
Total	8	14	0	6	0	1

 

All of China’s complains are on the goods area, shows that China’s main concerns are not in the trade in services and intellectual properties. This also verifies China’s main industry relating to the international trade is manufacture, not the services and intellectual properties.

On the contrary, among all of the 21 cases, 1/3 of the complains made by China’s trade partners is on services and intellectual properties, shows that the other countries are not only concerning the manufacture, but also noticing other area.

B. Korea

Korea begun to be a contracting party of the GATT in on April 14th, 1967, and the WTO member from the establishment of it, January 1st, 1995. Korea’s international trade dependence is 87.9% in 2010,[7] and ranked ninth in the leading exporters list of the world trade flows in 2009.[8] It can be seen that the international trade is a key factor in Korea’s economic development. Furthermore, Korea’s trade dependence to China rise up to 20.5% in the year of 2009,[9] shows that the economic tie between the two countries are very close.

The following chart shows Korea’s participation in the WTO dispute settlement:[10]

Chart 4. Type A: Overall

Year	Korea as Complainant	Korea as Respondent	Total
1995	0	3	3
1996	0	2	2
1997	2	3	5
1998	0	0	0
1999	1	3	4
2000	3	0	3
2001	0	0	0
2002	1	1	2
2003	3	0	3
2004	2	1	3
2005	0	0	0
2006	1	0	1
2007	0	0	0
2008	0	0	0
2009	1	1	2
2010	0	0	0
2011	1	0	1
Total	15	14	29

 

The figures in the chart show that Korea involved in the WTO dispute settlement from the very beginning of its establishment. More information disclosed in the chart is:

Firstly, the well-balanced figure of both roles shows that Korea is both active as complainant and respondent in the WTO trade disputes. Though it’s hardly to say a member have the choice to be a respondent, it indicates to some extent that what you did makes your trade partners feel threat.

Secondly, the interval of every two or three years of involving in trade dispute also shows Korea is not so active as complainant. As a country of high trade dependence, this phenomenon is a little bit inconsistent with the trade importance and trade development. A plausible interpretation might be that the Confucius cultural tradition of reluctance of litigation affects the strategy choice when face trade problems.

Thirdly, total 29 cases in 17 years period of time means 1.7 cases every year in average. This shows that Korea involved in disputes much less than China, 2.6 cases per year.

Chart 5. Type B: Percentage

Year	Cases involved Korea	Total Cases in the Year	Korea’s Percentage
1995	3	25	12%
1996	2	38	5.3%
1997	5	49	10.2%
1998	0	41	0
1999	4	30	13.3%
2000	3	34	8.8%
2001	0	27	0
2002	2	37	5.4%
2003	3	26	11.5%
2004	3	19	15.8%
2005	0	11	0
2006	1	21	4.8%
2007	0	13	0
2008	0	19	0
2009	2	14	14.3%
2010	0	17	0
2011	1	5	20%
Total	29	424	6.8%

 

The chart shows also that Korea’s involving percentage of cases is only 6.8% in average, which is also much less ---- no more than half ---- compare that of China, 14.2% per year. But the figure can also show different meaning if we look it in another way. In the eye of trade importance, Korea’s percentage of merchandise trade is 2.9 in export and 2.5 in import in 2009, while China’s percentage is 9.6 in export and 7.9 in import in the same year,[11] which shows Korea is less than 1/3 of China’s percentage respectively. If there is a positive correlation between trade amount and trade dispute, then Korea’s percentage is much higher than China.

Chart 3. Type C: Area

 

Year	Korea in Goods Disputes		Korea in Service Disputes		Korea in IP Disputes
	As Complainant	As Respondent	As Complainant	As Respondent	As Complainant	As Respondent
1995	0	3	0	0	0	0
1996	0	2	0	0	0	0
1997	2	3	0	0	0	0
1998	0	0	0	0	0	0
1999	1	3	0	0	0	0
2000	3	0	0	0	0	0
2001	0	0	0	0	0	0
2002	1	1	0	0	0	0
2003	3	0	0	0	0	0
2004	2	1	0	0	0	0
2005	0	0	0	0	0	0
2006	1	0	0	0	0	0
2007	0	0	0	0	0	0
2008	0	0	0	0	0	0
2009	1	1	0	0	0	0
2010	0	0	0	0	0	0
2011	1	0	0	0	0	0
Total	15	14	0	0	0	0

 

The figures above shows that Korea’s disputes are all in goods area, and no services and intellectual properties disputes involved Korea in seventeen years period of time. It may also indicate Korea need to develop trade in services and expend intellectual properties protection.

C. Japan

Japan’s contracting party status can be traced back to September 10, 1955, ten years after the Second World War and seven years after the GATT came to exist. Japan is also the WTO member when it successfully operated in January 1, 1995. Ranking fourth in export and fifth in import in the world merchandise trade, Japan is also an important trade player in the world economic.

Chart 7 Type A: Overall

Year	Japan as Complainant	Japan as Respondent	Total
1995	1	4	5
1996	3	4	7
1997	1	3	4
1998	1	1	2
1999	2	0	2
2000	1	0	1
2001	0	0	0
2002	2	1	3
2003	0	0	0
2004	1	1	2
2005	0	0	0
2006	0	1	1
2007	0	0	0
2008	1	0	1
2009	0	0	0
2010	1	0	1
2011	0	0	0
Total	14	15	29

 

The figures above show the following information:

Firstly, Japan is also active both as complainant and respondent like Korea, but happened to reverse the numbers as complainant and respondent as those of Korea.

Second, Japan is active in the beginning years of the WTO, but involved in disputes less after the first five-year period. From 2000 to 2011, Japan regularly involved in cases every one year, shows interesting intervals.
Thirdly, Japan’s annual cases are also 1.7 in average, similar to Korea, and much less than China’s 2.6 cases per year.

All these indicates that the great similarity of Japan and Korea in the application of the WTO trade dispute settlement mechanism, while Japan’s trade dependence, about 20% in the highest year,[12] is much lower than Korea in a long period of time. This observation may indicate that Japan is much more concern the international trade than expectation based on trade dependence.

Chart 8. Type B: Percentage

Year	Cases involved Japan	Total Cases in the Year	Japan’s Percentage
1995	5	25	20%
1996	7	38	18.4%
1997	4	49	8.2%
1998	2	41	4.9%
1999	2	30	6.7%
2000	1	34	2.9%
2001	0	27	0
2002	3	37	8.1%
2003	0	26	0
2004	2	19	10.5%
2005	0	11	0
2006	1	21	4.8%
2007	0	13	0
2008	1	19	5.3%
2009	0	14	0
2010	1	17	5.9%
2011	0	5	0
Total	29	424	6.8%

 

The chart shows also that Japan’s involving percentage of cases is only 6.8% in average, like Korea, which is also much less ---- no more than half ---- compare to China’s 14.2% per year. But the figure can also show different meaning if we look it in the eye of trade importance. Japan’s percentage of merchandise trade is 4.6 in export and 4.4 in import in 2009, compare to China’s percentage is 9.6 in export and 7.9 in import in the same year,[13] clearly shows Japan is more than half of China’s percentage respectively.

Chart 9. Type C: Area

Year	Japan in Goods Disputes		Japan in Service Disputes		Japan in IP Disputes
	As Complainant	As Respondent	As Complainant	As Respondent	As Complainant	As Respondent
1995	1	4	0	0	0	0
1996	3	2	0	1	0	1
1997	1	3	0	0	0	0
1998	1	1	1[same case]	0	0	0
1999	2	0	0	0	0	0
2000	1	0	0	0	0	0
2001	0	0	0	0	0	0
2002	2	1	0	0	0	0
2003	0	0	0	0	0	0
2004	1	1	0	0	0	0
2005	0	0	0	0	0	0
2006	0	1	0	0	0	0
2007	0	0	0	0	0	0
2008	1	0	0	0	0	0
2009	0	0	0	0	0	0
2010	1	0	0	0	0	0
2011	0	0	0	0	0	0
Total	14	13	1	1	0	1

 

The figures show that Japan involved in all trade fields including goods, services and intellectual properties, but it’s main concerns and its trade partner’s main concerns are all that of goods, services and intellectual properties are apparently minimum.

D. Interaction among China, Korea and Japan

The figure of disputes among the three countries shows that, China has neither trade dispute with Korea no with Japan, as complainant or respondent. While Korea complained Japan in 2 cases, and Japan hasn’t complained Korea. [14] In the two cases, Korea shows similar attitude to the result. In the first case, Korea and Japan reached a mutually agreed solution. In the second case, Korea won both panel procedure and appellate procedure, but in the March 2009, in a letter addressed to the Chairman of the panel, Korea indicated that bilateral consultations were ongoing to reach a mutually acceptable solution to this dispute.[15]

During all these years, the three countries took same steps in one case, complained the United States on safeguard measure relating to steel,[16] with the result that all of the three countries won at last. This means countries may have the similar trade interest sometimes, doesn’t mean all these countries intentionally take the same steps.

II. China, Korea and Japan as Third Parties in the WTO Dispute Settlement

Third party is the WTO member who is neither complainant nor respondent but interested in the case in the dispute settlement process. WTO member may have take advantage of third party in the dispute settlement to know what has happened and what is happening, it’s especially useful for countries who want to learn how to do if it were a complainant or a respondent.

A. China

China has acted as third party in 78 cases since December 11, 2001.[17] Checking the cases may find that, China is the third party in a case initialed by European Communities (in short EC) as the United States on November18, 1997, Tax Treatment for “Foreign Sales Corporations” (DS108). How can China be third party before her accession to the WTO? The fact is that the dispute haven’t been settled when China became the WTO member. The second recourse to Article 21.5 of the DSU by the EC in 2005, and panel established by the Dispute Settlement Body (hereinafter refer to the DSB) in June 2005 enable China reserve her right to third party in time. Hence, even the nearest case is DS243, the first case in 2002, after China’s accession to the WTO, China could reserve her third party right in DS174, DS207, DS212.
China learned in the cases as the third party and experienced in the first case complained within three months after her accession to the WTO, quickly grew up as an active player in the WTO dispute settlement body. China acted in 78 cases as third party, that is outnumbered greatly compare to 29 cases involved, and is 38% of all the WTO cases after her accession to it, shows that China did learned a lot as the third party.

Each year, China acted as third party in many cases, with the highest percentage in some year as 65% of all the cases and lowest percentage is about 13%, except the year of 2011. These big percentage show China is eager to learn how to apply the dispute settlement mechanism well and successfully.

The following chart shows the exact cases China as the third party:

Chart 10 China as Third Party

Case Complained Year	Cases	Total (China as Third Party)	Total Cases in the Year	Total Cases China as Comp./Resp. Party	Cases Percentage of the Year (minus as Comp./Resp. Party)
1997-2001 [pre-membership]	DS108, DS174, DS207, DS212	4	(Omitted)	(Omitted)	(Omitted)
2002	DS243, DS245, DS248, DS249, DS251, DS253, DS254, DS257, DS258, DS264, DS265, DS266, DS267, DS269, DS270, DS273, DS276, DS277	18	37	1	50%
2003	DS280, DS281, DS282, DS283, DS285, DS286, DS287, DS290, DS291, DS292, DS293, DS294, DS295, DS296, DS299, DS301, DS302	17	26	0	65.4%
2004	DS308, DS312, DS315, DS316, DS317, DS320, DS321, DS322, DS323	9	19	1	50%
2005	DS331, DS332, DS334, DS335	4	11	0	36.4%
2006	DS336, DS337, DS341, DS343, DS344, DS345, DS347, DS350, DS353	9	21	3	50%
2007	DS366	1	13	5	12.5%
2008	DS371, DS375, DS376, DS377, DS381, DS384, DS386	7	19	6	53.8%
2009	DS391, DS396, DS402	3	14	7	42.9%
2010	DS403, DS404, DS415, DS416, DS417, DS418	6	17	5	50%
2011	-	0	5	1	0

 

B. Korea

Korea has acted as third party in 57 cases since January 1, 1995. Though there are 25 cases in the first year of the establishment of the WTO, Korea didn’t attend any case as third party, rather than 3 cases as respondent. In the light of Korea complained only 2 cases after 2 years, and attended 6 cases as third party in the second year of WTO’s establishment, it can seen that Korea is not so active as complainant, but a little bit active as third party in the first three year of the operation of the WTO dispute settlement mechanism. It seems to show that Korea was watching during those years to see what to do next.

The percentage of third party cases in all cases shows that Korea is not very active as third party, the highest percentage is 42%, no more than half cases in the year of 2008, and lowest percentage is 0% in 1995.

The comparison of the recent 5 years percentage average and the first 5 years percentage show that Korea is more active as third party recently. The average percentage is about 8% during the first 5 years after the WTO’s establishment, while the average percentage is about 26% during 2006-2010 five years period.

The comparison shows that Korea is less active than China as third party in the WTO dispute settlement. China’s average percentage is 44% during the last five years period (2006-2010) participation as third party, and percentage is more than 50% in the first four year period (2002-2005).

Chart 11 Korea as Third Party

Case Complained Year	Cases	Total (Korea as Third Party)	Total Cases in the Year	Total Cases Korea as Comp./Resp. Party	Cases Percentage in the Year (minus as Comp./Resp. Party)
1995	--	0	25	3	0
1996	DS46, DS54, DS55, DS59, DS62, DS64	6	38	2	16.7%
1997	DS67, DS68	2	49	5	4.5%
1998	DS139, DS141, DS142, DS146, DS152	5	41	0	12.2%
1999	DS175, DS184	2	30	4	7.7%
2000	DS212, DS214	2	34	3	6.5%
2001	DS234	1	27	0	3.7%
2002	DS244, DS248, DS249, DS252, DS253, DS254, DS258, DS260, DS268, DS277	10	37	2	28.6%
2003	DS294	1	26	3	4.4%
2004	DS315, DS316, DS317, DS322	4	19	3	25%
2005	DS332, DS334, DS335	3	11	0	27.3%
2006	DS337, DS343, DS347, DS350, DS353	5	21	1	25%
2007	DS362, DS363	2	13	0	15.4%
2008	DS375, DS376, DS377, DS381, DS382, DS383, DS384, DS386	8	19	0	42.1%
2009	DS392, DS394, DS395, DS398	4	14	2	33.3%
2010	DS404, DS414	2	17	0	11.8%
2011		0	5	1

 

C. Japan

Japan has acted as third party in 105 cases since January 1, 1995 without any interval during the last 16 years. The annual average is 6.6 cases as Japan participated in the dispute settlement as third party.

The average percentage is near 39% during last five years participation as third party, which is not so higher than China and not so lower than Korea. While the number of cases Japan’s participation as third party is the highest in the three countries.

With the percentage about 19% as third party in the first five years period (1995-1999), Japan is more active than Korea in the beginning period of the WTO. And Japan can be seen more active if we compare the earliest five-year average percentage to the latest five-year average percentage.

Case Complained Year	Cases	Total (Japan as Third Party)	Total Cases in the Year	Total Cases (Japan as Comp./Resp. Party)	Cases Percentage in the Year (minus as Comp./Resp. Party)
1995	DS7, DS12, DS14	3	25	5	15%
1996	DS27, DS34, DS35, DS38, DS58, DS62	6	38	7	19.4%
1997	DS67, DS68, DS88, DS95, DS103, DS108, DS113, DS114	8	49	4	17.8%
1998	DS122, DS136, DS141, DS146, DS152	5	41	2	12.8%
1999	DS160, DS163, DS165, DS175, DS176, DS177, DS178, DS179	8	30	2	28.6%
2000	DS189, DS195, DS199, DS202, DS204, DS206, DS207, DS210, DS211, DS213, DS214, DS219	12	34	1	36.4%
2001	DS234, DS236	2	27	0	7.4%
2002	DS248, DS251, DS252, DS253, DS254, DS257, DS258, DS260, DS264, DS267, DS268, DS273, DS276, DS277	14	37	3	41.2%
2003	DS281, DS282, DS285, DS294, DS296, DS299, DS301	7	26	0	26.9%
2004	DS308, DS312, DS315, DS316, DS317	5	19	2	29.4%
2005	DS331, DS332, DS335	3	11	0	27.3%
2006	DS337, DS339, DS340, DS341, DS342, DS343, DS344, DS345, DS347, DS350, DS352, DS353, DS355	13	21	1	65%
2007	DS360, DS362, DS363, DS367	4	13	0	30.8%
2008	DS375, DS377, DS379, DS381, DS383	5	19	1	27.8%
2009	DS391, DS394, DS395, DS397, DS398, DS399, DS402	7	14	0	50%
2010	DS404, DS405, DS414	3	17	1	18.8%
2011		0	5	0

 

III. China, Korea and Japan Implementing the WTO Dispute Settlement Results

In the WTO dispute settlement mechanism, a phenomenon observed is that complainant won close to 90% of the cases.[18] Some scholar pointed out that this is an empirical puzzle, because standard theories of litigation predict a strong tendency towards a 50 percent plaintiff win-rate. The reasonable interpretation of this is that complainant filed “easy case” to the WTO which is likely to win on the merits.[19] Should this interpretation is true, it is also can seen the three countries win a lot in the cases complained by them.

It is more important to implement the result of the case than to win it. Because the procedural arrangement of the WTO dispute settlement, a case win in the panel procedure or appellate procedure doesn’t means win the result. Some WTO members do not want to implement the decisions of the DSB when they lose the cases, and intentionally to maneuver the procedure for a long time to consume the time and then at last refuse to compliance with the decision, waiting for retaliation from the winner. These practices make some cases are impossible to resolve, the so-called impossible case, and have to go back to negotiation table by the two parties.[20] The dispute settlement mechanism is frustrated for these prima facie good reasons.

A. China

The cases China involved are all satisfied by the parties, excluding those in the consultation still.

In the 8 cases China complained, 2 of them are in the consultation procedure (DS368, DS422), 1 of them is in the Panel Procedure, 1 of them was resolved in the Panel Procedure, 2 of them are in the Appellate Procedure, 2 of them were resolved in the Appellate Procedure. All the cases resolved were implemented by the counterparty, without any compensation or retaliation authorization.[21]

In the 21 cases China was complained, 5 of them are in the consultation stage, 4 of them were settled in the consultation stage, 5 of them are in the Panel Procedure, 3 of them were resolved in Panel Procedure, 4 of them were resolved in the Appellate Procedure.[22]

B. Korea

The cases Korea involved mainly settled via Panel Procedure or Appellate Procedure with compliance by the losing party, except 1 case authorized for retaliation.

In the 15 cases Korea complained, 4 of them are in the consultation stage, 6 of them were resolved in the Panel Procedure, and 5 of them were resolved in Appellate Procedure.

In the 14 cases Korea were complained, 2 of them are in the consultation stage, 3 of them were settled in the consultation stage, 1 of them are in the Panel Procedure, 3 of them were resolved in the Panel Procedure, and 5 of them were resolved in the Appellate Procedure.

The authorization of retaliation case is DS217, in which the United States did not comply with the decision in the reasonable period of time, and 7 WTO members were authorized to suspend concessions including Brazil, the EC, India, Japan, Korea, Canada, and Mexico.

It can be observed that in some of the cases, Korea faced the problem that the counterparty maneuvered the procedure to gain utmost benefits in a possible period of time. This is a signal for Korea to prepare in advance. Korea has no case of retaliation authorization as respondent, shows that Korea comply with the DSB reulings and recommendations very well, without any try of intentional maneuver of the procedure.

C. Japan

The cases Japan involved mainly settled via Panel Procedure or Appellate Procedure with compliance by the losing party, except 2 cases authorized for retaliation.

In the 14 cases Korea complained, 3 of them are in the consultation stage, 1 of them is in the Panel Procedure, 3 of them were resolved in the Panel Procedure, and 7 of them were resolved in Appellate Procedure.

No case has been settled via consultation till now, with is the same situation as China and Korea, Which shows to some extent that the East Asia countries are not good at negotiation with others.

In the 15 cases Japan were complained, 4 of them are in the consultation stage, 3 of them were settled in the consultation stage, 2 of them were resolved in the Panel Procedure, and 6 of them were resolved in the Appellate Procedure. All these numbers are very similar as those of Korea.

When Japan is a respondent, 3 cases were resolved during the consultation stage, with the same number in the same situation of Korea, and China is 4 in the same situation. The similarity rises up a question: why East Asia countries are so amicable when they were complained, and can’t have a similar soft counterparty when they complain? Should the reason be lack of efficient negotiation culture?

The authorization of retaliation cases are DS217 and DS322. The former case is the same as Korea, because they are in multiple complain procedure. The latter case is US — Zeroing (Japan) case, in which the US adopted Zeroing method in antidumping case calculation, an unfair way to do so and failed in many cases. The United States did not comply with the decision in the reasonable period of time, Japan was authorized to suspend concessions. Japan faced 2 cases of non-compliance when it won the cases as complainant, which is worse than that of Korea. In all of them, the losing member is the United States.

Conclusion

In the abovementioned empirical analysis of the three East Asia countries in the application of WTO dispute settlement mechanism, the following observations can be concluded:

Firstly, the East Asia countries almost had no trade dispute complained in the WTO dispute settlement mechanism. The only 2 cases complained is Korea directed to Japan. The trade within this area developed very fast, China has been Korea’s biggest trade partner since 2007,[23] and Korea is the third biggest trade partner of China. [24] China is also Japan’s biggest trade partner, and Korea is Japan’s third biggest trade partner in 2009.[25] It’s clear that in such a high density trade flow, disputes raised frequently is normal. Not so much litigation in the WTO among the three countries can only be interpreted that they mainly resolve their dispute via other ways before it have the chance to be initiated in the WTO, which is a good signal for regional cooperation. Primer Wen Jiabao proposed to negotiate to three countries regional free trade arrangement in his luncheon speech in Tokyo on May 22, 2011 when he attended the trade summit of China, Korea and Japan. This proposal roots deeply in the close trade relations among the three countries.

Secondly, the analysis above shows that all the three countries are relatively active in the trade dispute settlement mechanism established in the WTO, but lack of harmonized step in it. Among the three countries, China is the most active player in the eye of percentage of participation of the cases. This is easily understood if we link it with the trade percentage. All the three countries had only once complained in same case, that is the United States steel safeguard measure case. But this is mainly because of national interest respectively, not because of harmonized steps or intention. The three countries in same region has never jointed the same multiple complain procedure is a strong evidence that they lack the intention of cooperation in the trade dispute. There is no evidence to show they are going to harmonize their action in the near future. If a free trade area is to be created, more communication among them is needed.

Thirdly, the three countries are very active in the third party participation, shows that even they may not involved the case directly, but are concerned the relating development and situation. Though the three countries are not at the same levels of participating in the third party procedure, data analysis shows that they are all active in recent five years, especially Korea and Japan compare to the first five-year stage of the WTO.

Fourthly, the three countries’ reactions are very similar when faced complains in the consultation stage. As complainant, they hardly can make the counterparty withdraw those measures they think improper, but are easily to make mutual satisfied adjustment to the counterparty. Furthermore, they are quite amicable when lose the case and implement the DBS decisions, while might face counterparty’s cunning refusals or procedural tricks when they won the cases. This indicates these three countries need more qualified lawyers who are tough enough to protect their interest, desirably by training themselves’.

【作者简介】
Prof. Dr. LI　Juqian ，Associate Professor, China University of Political Science and Law (CUPL) Director, Public International Law Research Institute, International Law School, CUPL 。


【注释】
[1]See http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm. The last visit was on June 12, 2011.
[2]The United States and the European Union are always the most active members in the WTO dispute settlement mechanism. The United States complained 97 cases and responded 113 cases till June 12th 2011. See http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm. The last visit was on June 12, 2011.
[3]There are five countries in the East Asia area, China, South Korea, North Korea, Mongolia and Japan. Four of them are the WTO members except North Korea. China has four memberships in the WTO, namely Mainland China, Hong Kong, Macau and Taiwan, because the membership in the WTO can be obtained either as county or as separate customs territory.
[4]China was the GATT contracting party from the beginning of the international organization de facto, but withdrew illegally from it by the Taiwan government in 1950 when it occupied the seat of the GATT.
[5]See the official website of National Bureau of Statistics of China for the data of 2001: http://www.stats.gov.cn/_oldweb/tjfx/jdfx/t20020524_20398.htm. As for the 2010 data, see WTO statistic data, http://www.wto.org/english/news_e/archive_e/stat_arc_e.htm. The last visit was on June 12, 2011.
[6]The newest data is updated to June 12th, 2011. The author appreciates LI Xiao and Yang Xianting’s efforts of these numbers. The author rechecked the numbers, and is responsible for it should any mistake raised.
[7]See the official website of MOFCOM http://www.mofcom.gov.cn/aarticle/i/jyjl/j/201105/20110507552055.html. The last visit was on June 12, 2011.
[8]See WTO International Trade Statistics 2010, can be downloaded at http://www.wto.org/english/res_e/statis_e/its2010_e/its10_toc_e.htm. The last visit was on June 12, 2011.
[9]See Xnihua News Agency, http://news.xinhuanet.com/fortune/2010-02/01/content_12911864.htm. The last visit was on June 12, 2011.
[10]See supra note 5.
[11]See WTO International Trade Statistics 2010, can be downloaded at http://www.wto.org/english/res_e/statis_e/its2010_e/its10_toc_e.htm. The last visit was on June 12, 2011.
[12]See Guan Quan, The Puzzle of Japanese Trade Dependence, IN: Japanese Study Forum, Issue 1, 2005.
[13]See WTO International Trade Statistics 2010, can be downloaded at http://www.wto.org/english/res_e/statis_e/its2010_e/its10_toc_e.htm. The last visit was on June 12, 2011.
[14]The 2 cases are, DS 32: Japan — Import Quotas on Dried Laver and Seasoned Laver, DS 336: Japan — Countervailing Duties on Dynamic Random Access Memories from Korea.
[15]See http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds336_e.htm. The last visit was on June 12, 2011.
[16]Same subject matter in three different cases, DS249, DS251, DS252: Definitive Safeguard Measures on Imports of Certain Steel Products.
[17]See http://www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm. The last visit was on June 12, 2011.
[18]Matthew Turk, Why does the Complainant Always Win at the WTO? A Presumption-based Theory of Litigation at the World Trade Organization. Forthcoming In: Northern Journal of International Law and Business, Vol.31, 2011. See http://ssrn.com/abstract=1780558. Last visit was on June 12, 2011.
[19]Supra note 18.
[20]See C. O'Neal Taylor, Impossible cases: Lessons from the First Decade of WTO Dispute Settlement. IN: University of Pennsylvania Journal of International Economic Law, Summer 2007.
[21]Supra note 6.
[22]Supra note 6.
[23]See the official website of MOFCOM, http://ccn.mofcom.gov.cn/swxw/show.php?eid=23859. Latest visit was on June 12, 2011.
[24]See the official website of FMPRC, http://www.fmprc.gov.cn/chn/pds/gjhdq/gj/yz/1206_12/. Latest visit was on June 12, 2011.
[25]See the official website of FMPRC, http://www.fmprc.gov.cn/chn/pds/gjhdq/gj/yz/1206_25/. Latest visit was on June 12, 2011.