GLASS HOUSES 玻璃房子

One of the most troubling features of the growing tensions between China and the United States is that both countries legitimately have a lot to complain about, and typically they are the same things. Three issues are particularly conspicuous at present and at the core of difficulties in the trade relationship – the definitions and status of “market” and “non-market” economies; the role of governments as owners of strategic economic sectors and retaliation over grievances arising from that role; and cyberattacks. When China and the United States criticize each other, they often are launching their complaints from inside glass houses, fortifications especially vulnerable to retaliation.

Market Economies

Almost every member of the World Trade Organization, and even countries (such as Russia) that are not, for international trade purposes are considered “market economies.” The designation is important because the rules of fair trade are written to promote markets, rewarding market transactions and penalizing conduct judged to distort markets. The distinctions emerged at the dawn of the Cold War when the rules enabling private enterprise to compete with state-directed economies were written.

State economic interventions, according to world trade rules, distort markets. State-directed economies – “non-market economies” (“NMEs”) – are inherently distorting. World trade rules deal with them through exclusion, denying them entitlement to the benefits of favorable assumptions.

Although China agreed, when it acceded to membership in the WTO in 2001, that it was not yet accepted as a market economy, it did not expect such recognition to be far behind. Now, nearly a decade later, it seems nowhere in sight, and largely because of objections raised by the United States.

The United States sees too much state direction in the Chinese economy. National plans are reinforced by regional and local planning. State-owned enterprises are dominant, particularly in the most important sectors of steel and energy production. State-owned banks control most lending. Tax schemes systematically favor designated sectors. Utilities providing manufacturers with energy are state-owned. There is no private ownership of land. And today, most important of all, currency is tied to the dollar and does not trade freely in international markets.

China does not see its economy this way. State enterprises are enterprises whose profits go to all shareholders, who are the people of China and not small investing bands of capitalists. They are controlled by boards with mandates to operate competitive, profitable businesses. Banks, controlled by the state, protect the state’s interests, and thus avoid reckless and feckless lending that can jeopardize whole economies. Labor is mobile and subject to competition. Land tenures in Britain, and some other Commonwealth countries, are based on the theory that the Crown owns all of the land, but thriving markets in land tenures exist. No one claims that the Crown’s ownership of all of the land in these countries suggests they are not market economies. The dollar began to float freely and trade on international exchanges less than forty years ago, and no one suggests that prior to the collapse of Bretton Woods the United States was not a market economy. In China’s view, all the people of China are the shareholders of the economy at large, but no less capitalistic in their support of competition and free enterprise. Most observers of China today remark on the Chinese worship of money, no less than in traditional capitalist societies.

The American indictment of China as an NME is defended now from inside a glass house. After the fall of Lehman Brothers in September 2008, the federal government in the United States took large ownership positions in many key banks. The government took effective ownership of the automobile industry. The Congress of the United States endlessly writes tax laws to favor one industry or another, especially the larger ones dependent on exports. Property is private, but government institutions set the terms of ownership and all of the financing that makes ownership possible. And the government in the United States intervenes in the economy regularly to create and save jobs, regulating the labor market, encouraging companies to hire labor and discouraging dismissals.

Neither China nor the United States is an ideal market economy. The distinctions might not matter practically, representing different paths to the acquisition and distribution of the benefits of commerce, except that they do in the application of trade laws. China thinks itself stigmatized by its designation as an NME, and it is disadvantaged in international trade.

Until 2006 there was at least a trade-off. Trade law, as applied everywhere, recognized that state intervention in the economy could not be market-distorting if there were no market. Consequently, trade remedy actions based on subsidy allegations could not be initiated, both because there was no way to measure a subsidy in the absence of market prices, and because a subsidy by definition must distort a market and in an NME there is no market to distort.

In late 2006, the United States began to have things both ways. It said China was enough of a market economy to justify bringing subsidy cases against its exports, yet not enough to shed its designation as an NME.  Ever since, China has been manifestly subject to a deliberately unfair trade regime. Yet, when China takes exception, it does so from within its own glass house, and not only because of the conditions that shaped American views in the first place.

Even as China began in 2006 to defend its practices in the United States, its conduct tended to reinforce the indictment instead of refuting it. Instead of acknowledging that it had little control over regional and local governments, their “planning” or their commercial practices, the central government, citing to the Constitution of the People's Republic of China, asserted that all governments reported to it.  Instead of acknowledging difficulty in amassing information demanded by U.S. authorities in trade investigations, it tried to answer questions without verifiable information. Instead of leaving private enterprises in China to find counsel and defend their own interests, the government convened supposedly independent chambers of commerce and largely directed the management of China’s legal defenses. It relied principally on the advice of Chinese lawyers with very limited knowledge of U.S. law. All these actions tended to convince American investigators that China is state-run and not ready to be considered a market economy.

As a practical matter, this issue has lost most of its importance. U.S. authorities have developed methodologies that would reach the same conclusions about fair trade even were China now recognized as a market economy. But symbolically this issue remains critical.

China’s Retaliation: Mutual Accusations Of Subsidies

Exhausted, perhaps, by the apparent futility in its claim that it should be recognized as a market economy, China has adopted an alternative strategy, accusing the United States of similar market deficiencies. China now formally accuses American exports of being subsidized in an economic system marked by substantial state involvement.

China does not deny that the development of its automobile industry has been heavily subsidized. Instead, China argues that it has graduated from subsidization. This view, however, neglects the history of international trade disputes centered on the privatization of state enterprises that followed on the collapse of Communist regimes. The United States accused all such enterprises, especially in the steel industry, of continuing long-term benefits, arguing that privatization could not extinguish the value of subsidies unless the sale of the state enterprise took place at a full market price. The United States placed the burden of proof that no subsidies passed through from the state to the private enterprise on the foreign private enterprise, a burden virtually impossible to bear because of inadequate documentation.

China, perhaps preemptively, has accused the U.S. automobile industry of exporting subsidized vehicles to China. As we discussed on December 1, 2009 on this blog, the countervailing duty investigation launched in November 2009 arises from a petition that argues the American automobile industry is in historic decline and survives only due to massive government subsidization. The central problem of these accusations, however, is that they are hurled from a glass house. The United States will now almost certainly accuse China of subsidizing the automobiles China is gearing up to sell to the United States. Hence, while the industries in both countries are trying to develop fuel efficient automobiles that will eliminate carbon emissions, thereby serving mutual objectives related to saving the planet, trade laws in both countries already are impeding direct competition based on the quality of the product.

China’s action, contending that the United States does not produce automobiles through free market enterprise, is a transparent retaliation for the American insistence that China is a non-market economy. However, this action carries the disagreement forward into the terrain of the future, where China and the United States need most to cooperate.

Cyberattacks

The United States has complained for a long time that China has subjected American defense and security establishments to incessant and invasive cyberattacks. These complaints took on a new character and dimension when Google complained that a coordinated Chinese assault on Google customers included an invasion of the accounts of Chinese dissidents. Google, already criticized for accepting Chinese government censorship that affects the internet in no other country, found the latest attacks intolerable. Google threatened to leave China.

The Google-China confrontation led Secretary of State Hillary Clinton to deliver a major speech on “internet freedom” that called for international condemnation of China.  Jack Goldsmith, Harvard Law School professor and former senior Justice Department official in the Bush Administration, responded quickly in The Washington Post: “[T]he problem with Clinton’s call for accountability and norms on the global network,” Goldsmith wrote, “is the enormous array of cyberattacks originating from the United States. Until we acknowledge these attacks and signal how we might control them, we cannot make progress on preventing cyberattacks emanating from other countries.”

The cyberattacks from China are presumed to be state-directed because of the state control and censorship of the internet imposed on companies such as Google. Attacks from the United States are presumed, at least by Americans, to be the work of private individuals, free-lancers, the sort of people who fill e-mail boxes incessantly with spam. Goldsmith accepts this orthodoxy, noting that “Scores of individuals and groups in the United States design or employ computer payloads to attack government Web sites, computer systems and censoring tools in Iran and China. These efforts are often supported by U.S. foundations and universities, and by the federal government. Clinton boasted about this support seven paragraphs after complaining about cyberattacks.”

Boarding Up The Glass Houses

China surely knows at least as much about what is happening in its cyber sphere as Professor Goldsmith. The American complaint about Chinese interference with the internet appears well-founded, as is the American complaint about China’s control of its economy and China’s subsidization of industry. But each of these complaints is launched from a glass house. Until China and the United States acknowledge mutually the problem – that their legitimate reciprocal complaints need more solution than aggravation – such complaints will compound and multiply, and the two countries will grow further apart and more antagonistic. They must either appreciate the view that glass houses uniquely afford – a place from which one can see out very well, but others can also see in -- stop throwing things at each other from inside the glass houses, or board them up. The last choice, which may define the direction in which things are going, is probably the worst of all.

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A Deep Freeze on Climate Change? 深度冷藏气候变化会谈?

President Obama declared in his State of the Union address on January 27, to a standing ovation, that the United States would not take second place to anyone in the world, and specifically to countries such as China and India. The specific reference to China and India highlighted their growing importance on the global stage. India and China increasingly have been presenting a united front against the United States and the rest of the developed world, despite their own on-going political and territorial disputes (as we noted in our articles entitled, India, China, and the Doha Round, and India and China Turn Up the Heat on Climate Change).

We predicted in India and China Turn Up the Heat on Climate Change that an alliance between India and China could present a formidable barrier at the climate change meetings in Copenhagen in December 2009. Indeed, the talks have been regarded by many as a failure, and the resulting Accord as “low-ambition.” Just as India, with the support of China, had been blamed by the United States for the failure of the Doha Round in July 2008, China, with the support of India, has been blamed by many for the failure of Copenhagen.

The Copenhagen Accord, drafted by Brazil, China, India, South Africa (the “BASIC” countries) and the United States, is not legally binding, and was recognized but not approved by the 193 countries represented at Copenhagen. It seeks to limit a rise in temperatures to no more than 2 degrees Celsius above pre-industrial levels, and sets a goal that developed countries jointly will deliver $30 billion of aid over the next three years and $100 billion a year by 2020 to help developing countries cope with the impact of climate change.

Developing countries, including China and India, have made clear that they will join other countries to combat climate change, but not at the expense of their own economic interests. They conditioned acting on the receipt of significant concessions from the developed world, which they see as primarily responsible for the problem they are being asked to address.

Both China and India chose Copenhagen as the platform from which to demonstrate that they could not be bullied by the developed world. India’s Environment Minister Jairam Ramesh stated in an address following the meetings in Copenhagen that the alliance of BASIC countries highlighted the growing influence of emerging economies. He further characterized as a significant victory the commitment from developed countries to provide $100 billion/year in climate funding without having to make significant concessions in return. He indicated that close links with China would continue. China also declared that Copenhagen proved China could not be pushed around.

India has been concerned about the binding nature of the Copenhagen Accord. Even though India was among the countries that brokered the deal, sources have said that it announced its support for the Accord only after UN Secretary General Ban Ki-moon clarified to Prime Minister Manmohan Singh that the Accord was a political statement of intent with no legal force. In the aftermath of the Copenhagen meetings, Minister Ramesh even “pled guilty” for allowing provision for “international consultation and analysis” of domestic mitigation programs, a greater concession than merely informing the UN Framework Convention on Climate Change (“UNFCCC”) about domestic mitigation programs. When the environment ministers of the BASIC countries met on January 24, 2010, Minister Ramesh stated that the Copenhagen Accord has “no hope” of becoming a legally binding document.

The Copenhagen Accord did include a January 31, 2010 deadline for countries to outline their climate change plans and declare specific emission reduction targets. More than 50 countries respected the deadline, including India and China. India committed to reduce emissions by 20-25% by 2020 (in comparison to 2005 levels) through domestic mitigation efforts, but stated specifically that “its domestic mitigation actions will be entirely voluntary in nature and will not have a legally binding character.” India further stated that “mitigation actions will also not apply to agriculture sector. The emissions from agriculture sector will be excluded from the assessment of emissions intensity.”

China stated in a January 28 letter that it would endeavor to cut the amount of carbon produced per unit of economic output by 40 to 45 percent below projected growth levels by 2020, also from a 2005 base. However, given China’s projected rate of economic growth, China still would increase substantially its total carbon emissions while expecting the developed countries to decrease their emissions drastically.

Whether the Copenhagen meeting was successful cannot be determined strictly from the setting of targets, on the one hand, and the absence of any legally binding agreement, on the other. It may be that “success” will have to be measured by “progress,” with the standard for progress reasonably modest and determined by actual carbon emission reductions worldwide. Nonetheless, unmistakably there will be no global progress without the developing world. Copenhagen confirmed a China-India alliance as the base of a larger group of developing countries resistant to progress at their expense.

China, India, Brazil, and South Africa are now central to progress on climate change. They have asked the UNFCC to hold six meetings through 2010 in preparation for the next climate summit in Mexico City in December. The BASIC ministers themselves will meet once each quarter, first in Cape Town at the end of April 2010. The European Community had entered Copenhagen with even greater ambition than the United States. The BASIC countries proved that Europe, the United States, and other developed countries will make little or no progress without them.
 

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Making Progress BIT By BIT On A U.S.-China Bilateral Investment Treaty 美中双边投资条约一步一步前进

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Despite the joint announcement of the United States and China that both countries would “expedite negotiation on a bilateral investment treaty” (abbreviated in English as a “BIT”), the notion of a BIT between the United States and China, two of the world’s five largest economies, remains inconceivable for some. On the U.S. side, there are significant political obstacles: free trade and foreign investment typically are not successful campaign platforms for U.S. politicians during an economic recession, especially in an election year. U.S. politicians would not likely accept a BIT while strong disagreement remains over China’s currency policies. China’s pegging of the yuan to the dollar remains an irritant (indeed, the only trade issue on President Obama’s agenda in Beijing in November), notwithstanding that it may have enabled critical flows of debt-financing while the United States endured the depths of a recession while still needing billions for military actions in Iraq and Afghanistan. There are obstacles on Chinese protection and enforcement of U.S. intellectual property, controlled Chinese capital markets, and laws raising national treatment concerns for American investors trying to establish investments in China, according to Amy Tsui’s BNA Int’l Trade Daily article.  Political support for a BIT with China does not look promising, particularly with a Congress whose Democratic leadership is often openly suspicious of Chinese trade and investment intentions.

China has its own policy disagreements with the United States, including on trade issues such as the United States’ safeguard duties on Chinese tires. China also has been reluctant to embrace international arbitration of investor-state investment disputes to the degree that the United States would demand using the 2004 U.S. Model BIT as the basis for negotiations.

Notwithstanding these obstacles, there are reasons to believe that a U.S.-China BIT is not a question of “whether” but “when.” When the Bush Administration announced in June 2008 that the United States and China had been discussing a BIT as part of the Strategic Economic Dialogue, at least one observer wondered whether the announcement meant a deal had been completed. According to a U.S. official, talks of a U.S.-China BIT already had been going on for seventeen months. Under the Obama Administration, it appears that discussions are continuing “in technical stages [but] have not yet reached political decisions.” (“ACIEP Report on Model BIT Lacks Consensus on Critical Issues,” Inside U.S. Trade, Oct. 2, 2009.)

BITs are smaller in scope than free trade agreements (“FTAs”). The negotiations, therefore, are much more attainable, in terms of both the substance and the political capital expended to reach an agreement. BITs tend to favor the country in the agreement that is the larger exporter of capital, which usually has meant that the United States stood to benefit far more than its treaty partner. Of the approximately 60 countries with whom the United States previously has agreed on BITs or FTA investment chapters, Canada and South Korea are the only significant exporters of capital.

U.S. businesses see BITs as a way to open up access to foreign markets, and China would be no exception. For many years, U.S. industries have been looking for ways to improve access to China’s one billion consumers and to eliminate restrictions on or disincentives to foreign investment, particularly as, during recent years of high economic growth, the Chinese have accumulated unprecedented wealth for a developing country.

China, unlike most of the United States’ treaty partners in prior BITs, has become a significant exporter of capital, but this fact probably makes a BIT even more likely. Since 1998, China has been renegotiating BITs it had with many European countries in order to provide greater protection for its own investors doing business in Europe. Recently, China also has been in BIT negotiations with Canada. As China increases its investments in the United States, it becomes increasingly likely that China will want the same protections for its investors doing business there.

There have been critics in the United States fearing that BIT provisions for international investor-state arbitration circumvent U.S. judicial, legislative and regulatory processes, and many certainly would oppose a BIT with China given the implications for U.S. environmental and labor standards. And yet, there is little reason for anyone to believe that the United States would be overrun with foreign claims under a U.S.-China BIT. Notwithstanding Canada’s significant investments in the United States market, in the sixteen-year period since the adoption of NAFTA’s investment chapter no arbitration tribunal has required the United States to pay on a single claim.

Political concerns over U.S. national security restrictions on investment have subsided since 2005 when CNOOC’s bid to purchase UNOCAL was blocked, as discussed in our previous post in December. Specific transactions still may be blocked, but those decisions appear to be driven more by the national security analysis of a particular case than by reactionary measures to calm an agitated Congress, as discussed in our earlier post in January.

U.S. industry representatives have recommended that the United States should consider softening the “essential security” exception in its Model BIT language to allow foreign investors greater assurances that their investments will not be disrupted by disguised protectionist motivations.  (“ACIEP Report on Model BIT Lacks Consensus on Critical Issues,” Inside U.S. Trade, Oct. 2, 2009.)  While they plainly intend for the exception to be softened as to foreign countries’ restrictions on foreign U.S. investment, the reciprocal nature of such a provision would be appealing to the Chinese as well. There may not be enough sympathy in Congress, however, for such a departure.

Negotiation of a China-U.S. BIT will not be quick and easy, but it remains likely. China is an expanding market attracting foreign investment from around the globe. American enterprises want to invest there and would like more security for their investments. Such incentives historically have driven the United States to negotiate BITs.

This time, however, there is an added and critical dimension. China has amassed capital and is beginning to invest abroad. The United States not only is an attractive market; the United States also needs a substantial share of that investment for the growth of its own economy. Chinese businessmen, like Americans, want investment security. This time, therefore, the BIT partners share a common vision of an agreement that will attract investment to their own countries while protecting their citizens investing abroad. Such unusual balance may make the negotiations more difficult, but they also make a positive result more likely.
 

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The United States Remains Open To Chinese Investment 美国仍对中国投资敞开大门

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This blog posted an article titled “Setting The Record Straight: The U.S. Is Open For Chinese Business; Don't Worry Too Much About National Security Reviews” on December 12, 2009. Two weeks later Northwest Non Ferrous International Investment Co., Ltd. (“Northwest”) dropped its plans to acquire a Nevada mining company because a national security review under the Foreign Investment National Security Act “FINSA” was coming to an unfavorable conclusion. We do not stand corrected.

The rejection of the Northwest acquisition was based on unique facts and not because of opposition to Chinese investment generally. Chinese companies should not let this case dissuade them from acquiring companies and otherwise investing in the United States.

Northwest proposed to acquire control over a mining company, Firstgold Corp., all of whose operations are adjacent to Naval Air Station Fallon, the U.S. Navy’s premier tactical air warfare training center. The Navy opposed a company owned by the Chinese Government having control of property from which its most sensitive training activities might be monitored. Also in that area are other security and military assets so sensitive that the U.S. Government treats even their identities as classified information.

Due to the sensitive nature of the government installations, any acquisition by a foreign company, including companies based in NATO countries, would have raised national security concerns. Whether China created more concern is entirely speculative and ultimately unknowable. However, Chinese companies should not view the CFIUS result in this case as based on an objection focused on China, but rather as based on the serious national security concerns it definitely presented regardless of the foreign country. FINSA requires CFIUS to consider whether the acquiring company is state-owned. However, given the serious national security concerns raised by the location of Firstgold’s facilities, the result likely would have been the same even had the acquirer been a private company.

Northwest’s lawyers have described extraordinary but failed efforts to make the acquisition compatible with national security concerns. Their memorandum to Northwest, published on the New York Times website, reports that the Committee on Foreign Investment in the United States (“CFIUS”) looked closely at all kinds of scenarios to mitigate the national security concerns, but concluded that none of them would be feasible because all four of Firstgold’s properties are located adjacent to Naval Air Station Fallon or other military sensitive locations.

The lawyers’ report demonstrates that CFIUS’ goal is not to block investments. Instead, CFIUS seeks to mitigate national security concerns. The exceptional facts in this case are that all of the operations to be acquired raised concerns. When national security is at issue, it usually affects some part of the deal and can be mitigated. Here, all of the deal was implicated; mitigation (such as spinning off some part of the deal while preserving the essential economic value) apparently was impossible.

Northwest acted wisely in this case, seeking a CFIUS review before investing because of uncertainties about national security. Reportedly, Firstgold did not want to request CFIUS review. Northwest could have invested, only to have CFIUS recommend and the President of the United States undo the deal, not because of animus toward Chinese investment, but because of the serious implications for national security.

It is important not to misinterpret the Northwest case. It proves the utility and wisdom of early CFIUS review, not an objection to Chinese investment. Notwithstanding CFIUS’ rejection of Northwest’s proposed acquisition of Firstgold, the United States remains one of the economies most open in the world to foreign investment, including from China.
 

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China-U.S. Trade War 中美贸易大战

*This article was published in International Trade Law 360 on January 7, 2010. 中文请点击这里

On January 4 The Washington Post headlined on Page 2, with a Beijing dateline, “U.S. and China in a snowballing trade fight.” The article followed two others prominently presented with similar messages on January 1 and 3, one bannered with the same wintry theme (“U.S.-China relations set for chill, experts say”). The Washington Post is not accustomed to covering international trade, let alone with major articles. Meanwhile, Nobel Prize winning economist Paul Krugman was anticipating and endorsing in The New York Times on New Year’s Eve more trade remedy actions against China.

Trade remedy petitions are not prepared overnight. Nor are they, at least in the United States, the products of coordinated policy. Companies and industries decide that they are facing unfair international competition and that they could benefit from a trade action. Such decisions are not reached easily because trade actions are expensive and take a lot of time and attention. Whereas steel companies may orchestrate petitions because they may bring complaints about different products they make, their actions are independent of the manufacturers of non-steel products. Hence, the perception of a coordinated attack on Chinese goods is understandable (it requires only several petitions close in proximity on the calendar), but it does not correspond to a national trade policy.

Contributing to the perception of a coordinated attack on Chinese goods are the results of petitions. Most, but not all, result in affirmative determinations from both the Department of Commerce (“Commerce”) and the International Trade Commission (“ITC”) and the imposition of duties. A constant anti-China roar from Congress contributes. Nonetheless, the process is anchored in the independent initiatives of the American private sector, not in the coordination of the government.

China’s initiation of trade investigations now projects a reflection of the American process, but with insufficient transparency to be entirely persuasive that the new wave is without political motive. China’s Ministry of Commerce (“MOFCOM”) says it is receiving petitions from private enterprises and trade associations, is analyzing them and deciding whether to initiate investigations, exactly like the process in the United States. However, MOFCOM announces the filing of a petition only upon the initiation of an investigation. Some Chinese lawyers say these petitions may be the product of MOFCOM itself, and that their dating is unreliable. Because MOFCOM does not reveal the existence of the petition until it decides whether to investigate, there is no way to know. However, in the United States, Commerce must initiate an investigation within twenty days of the filing of a petition, which is a public document upon filing, Commerce cannot schedule initiations of investigations for political purpose. By contrast, MOFCOM retains complete control of its schedule and therefore can initiate investigations according to a political calendar.

American officials are talking about “inevitable” and “normal” conflicts in a growing trade relationship. China has a different view. It sees nothing inevitable or normal in the cases being brought against its goods, even though the United States has not been as aggressive in challenging Chinese exports as have been the European Union and India. Nor does it accept the results. One of the Washington Post articles, for example, was headlined, “China denounces U.S. trade ruling on steel pipes,” and Chinese Ambassador to the United States Zhou Wenzhong called the tires safeguard signed by President Obama in September “a very dangerous precedent.”

Tit For Tat

Were there “tit for tat” in this story, it would be almost entirely in the “tat.” The United States is doing what it has always done, initiating countervailing duty and antidumping investigations on virtually every petition Commerce receives. Commerce is acting as it has always acted, protecting U.S. industries by giving them the benefit of almost every doubt and zealously defending the indefensible, such as the practice of zeroing that has been struck down repeatedly by the WTO.
Commerce has been neither diplomatic nor delicate in its treatment of China. In published determinations it has accused Chinese officials of deceptive practices and misinformation. It has ignored expert testimony. It has cancelled verifications based on suspicions. It has refused to listen to government witnesses. China has ample reason to be distressed by Commerce conduct.

Notwithstanding its experience, China has complained little, if at all, about Commerce’s brass-knuckles treatment. There have been no official protests and no reports of unofficial complaints. The Chinese Government has not challenged Commerce’s conduct and determinations in U.S. courts. Conspicuously, China has reserved its public protest for denunciation of President Obama, and of the ITC, where it has declined to appear.

The President and the ITC, unlike Commerce, have not displayed animus toward China. In the tires safeguard, discussed in earlier postings on this blog, the President adhered closely to the terms of the accession protocol China had signed while fashioning a measure of relief designed to disadvantage Chinese exports without putting them out of business. Chinese commentators have suggested that Democrats, faithful to trade unions, are more protectionist than Republicans, but the ITC, with three Republican commissioners, has been consistently unanimous in its conclusions about injury caused by Chinese imports.

Chinese complaints, thus, do not seem aimed at changing results. They have not changed the course of U.S. actions, nor could they, inasmuch as the petitions do not arise from any particular policy except Commerce’s likely findings supporting petitioners.

The “tat” for the continuing American trade actions seems more apparent. Instead of contesting each trade action within the rules and laws, China has opted to take its own initiatives. Although they are not necessarily linked to American actions, it appears that China wants them interpreted this way. It was not possible, for example, for retaliatory petitions to have been readied within forty-eight hours of the President’s safeguard decision, yet Chinese statements frequently invoke the tire duties as a starting point for apparent retaliation.

Ariana Eunjung Cha linked the tires safeguard directly to Chinese reactions in The Washington Post. First she said that the safeguard “struck an emotional nerve.” She reported, “On Internet bulletin boards, public sentiment about the United States turned ugly.” Then she reported on the Chinese Ambassador’s warning that the safeguard is a “dangerous precedent,” followed by, “Two days later, China accused the United States of predatorily ‘dumping’ chicken products and auto parts into the Chinese market and warned that it could impose its own tariffs.” “Then,” she added, “in October, China made good on that threat by hitting the United States with duties of as much as 36 percent on certain nylon exports.”

With Chinese proceedings less than transparent, it is possible that the Chinese investigations were retaliatory. Ms. Cha’s subsequent statement, however, does not follow: “On Nov. 4 and 5, the United States went on the offensive again – slapping anti-dumping duties on Chinese-made steel pipe and launching two more probes of Chinese imports.” Breathlessly, now with the accumulating evidence of tit-for-tat, she adds, “Barely 24 hours later, the Chinese announced they had opened an investigation into U.S.-made passenger cars.”

The United States is not capable of the tit-for-tat this imagined trade war requires, if for no other reason than it does not control the timing and subject matter of petitions. The ITC does not have the capacity to orchestrate hearing and determination dates according to actions in China. Nor have all the ITC determinations been affirmative, and in the one instance where Chinese interests (but not the Chinese government) have challenged the legality of agency actions, the Court of International Trade handed them a partial victory as discussed in an earlier posting on this blog.

China, by contrast with the United States, may be capable of retaliatory actions, although such capability ought not be exaggerated. Bureaucracies share the same infirmities everywhere. They all move slowly, and they all have difficulty with deadlines. There is surely more coincidence than conspiracy in the timing of apparently reciprocal actions, although retaliation is not impossible.

There is, in the telling, nonetheless encouragement. Commerce has been consistent in rewarding U.S. petitioners. Congress has incited petitions. Professor Krugman, generally supportive of free trade, has declared protectionism justified, even warranted. Seen from Beijing, this apparent pattern could be seen as a policy requiring response.

The Tires Trigger And Chinese Conduct

Since accession to the WTO, China has been participating in trade disputes according to the rules, but less than fully. Unlike other countries, China is not appearing before the ITC. It is not appealing adverse agency determinations in U.S. courts. It is not pursuing administrative reviews of countervailing duty orders, when final duties are determined and set for collection. It is not even answering questionnaires in administrative reviews in support of its own companies. Instead, China is counting on the WTO for trade vindication, a strategic choice almost certain to disappoint.
The prevailing excuse for China’s incomplete commitment to the legal process, and its rising anger over American actions, continues to be President Obama’s safeguard decision. The complaint focuses on the proposition that China “did nothing wrong.” The safeguard exception in the WTO, however, expressly requires that nothing wrong be done. It exists strictly as a response to an unexpected and disruptive surge in imports.

China’s handling of the safeguard, like its handling of some of the other trade disputes, has displayed little strategic thinking. China did not present President Obama with a cogent legal argument as to why no duties should have been imposed on Chinese commercial tires, that there was no industry adjustment plan and, therefore, no remedy could serve the law’s object and purpose. Instead, China argued that the President, a Democrat elected with union support, should respect the decision of U.S. industry to offshore jobs to China.

China’s reaction to the ITC steel pipes decision has a similarly tone-deaf political character. Steven Mufson reported on New Year’s Day in The Washington Post, “China’s Ministry of Commerce said that China was ‘strongly dissatisfied’ with the U.S. International Trade Commission’s Wednesday ruling that Chinese subsidized imports had harmed or threaten to harm U.S. steel pipe manufacturers . . . The Commerce Ministry said that the ITC’s ruling was ‘wrong. . .’” Yet, MOFCOM did not present its case to the ITC. Commissioner Lane, extraordinarily, told the lead counsel for the Chinese industry during a public hearing that she did not think he was answering her questions and insisted on directing questions to the second chair.
China’s unhappiness, then, with U.S. trade actions may be the legitimate result of a pattern of petitions and decisions, but the only event deviant from the past has been the one safeguard action. It has proven not to be the “precedent” of which the Chinese Ambassador warned. No other safeguard action has been brought, even though the core injury complaint against steel pipes was about a surge.

The Bigger Picture

China is participating just enough in trade disputes arising in the United States to be informed and to complain, but not enough to prevail. Respondents to trade remedy petitions in the United States hope, but do not expect, to prevail at the ITC. They have little hope at Commerce except to build a record for appeal. Respondents, therefore, who do not appear at the ITC and do not appeal Commerce determinations do not expect ever to prevail. China’s choice of partial participation must be for some other reason.

China’s reasons may be detectable in the countervailing duty petition against U.S. automobiles, discussed in an earlier posting on this blog. The trade issue in the petition is that the U.S. industry is at least as much the beneficiary of state support as any Chinese industry, such that there is no reason for the United States to persist in treating China as a non-market economy. The grander strategic issue appears to be in the petition that the U.S. automobile industry, like the United States more generally, is in decline, whereas the Chinese industry, and China more generally, are ascending.

Trade disputes, as seen in the automobile petition, are expressions of China’s greater vision, as outlets for China to assert itself and to take on the United States as no other countries have been willing to do. As long as the United States continues business as usual, with agencies favoring domestic producers against Chinese imports, Chinese frustration will grow. Although a better answer, if China were focused on free and fair trade, would be to test the legal system, so far China prefers, apparently, to use trade as a soapbox for a bigger message.

Should China and the United States persist on these paths, the media will persist in seeing a trade war, reading into calendar coincidences strategic conspiracies. It may be the read China wants, and Congress might want it as well. The deteriorating atmosphere may then impact other critical bilateral and global issues. Consequently, it is important for China and the United States to pull back and think strategically together. Otherwise, toxic trade could pollute everything that concerns them.
 

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The President's Visit: A Success For China And Failure For The United States? 奥巴马总统访华:中国的成功、美国的失败?

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China’s leaders and commentators think President Barack Obama’s visit in November was an unqualified success. Publicly, the White House sees a qualified success, and privately not even that. It may all depend on what “success” and “failure” mean. The differences have consequences.

American analysts generally are less equivocal than American officials. They mostly see failure. Elizabeth Economy, Director of Asia Studies at the Council on Foreign Relations, called the trip “optically, one of the worst U.S. presidential visits to Beijing in memory.” Helene Cooper wrote in The New York Times from Beijing, “With China’s micro-management of Mr. Obama’s appearances in the country, the trip did more to showcase China’s ability to push back against outside pressure than it did to advance the main issues on Mr. Obama’s agenda, analysts said.” She went on to quote Eswar S. Prasad of Cornell University, “China effectively stage-managed President Obama’s public appearances, got him to make statements endorsing Chinese positions of political importance to them and effectively squelched discussions of contentious issues such as human rights and China’s currency policy. In a masterstroke, they shifted the public discussion from the global risks posed by Chinese currency policy to the dangers of loose monetary policy and protectionist tendencies in the U.S.”

Some Chinese critics share the American conclusions. Ying Chan, Director of the Journalism and Media Studies Center at the University of Hong Kong, headlined in The New York Times, “Obama Loses A Round,” writing, “While the jury is still out on what President Obama’s China visit has achieved for the long term, the president has most decidedly lost the war of symbolism in his first close encounter with China.”

Certainly China seems to have had its way with the President publicly. He wanted a spontaneous, televised meeting with students and bloggers in Shanghai and he got a rehearsed exchange with young members of the Communist Party in a sealed-off auditorium. He wanted to get out and meet people and he got what Helene Cooper reported in The New York Times to be a “ghost town” at the Great Wall, “the bustling tourist attraction” “largely shuttered for the presidential visit.” He was also diplomatically downgraded, accompanied to the Great Wall by the Chinese and American envoys and no senior Chinese official. At his joint press conference with President Hu Jintao, where the two presidents read mutually approving (and presumably mutually approved) prepared statements, the press were not permitted to ask questions. Ying Chan’s assessment was that “the Chinese outmaneuvered the Americans in all public events,” arguing that, “In status-conscious China, symbolism and protocol play a role that is larger than life.”

These conclusions are not good for Sino-U.S. relations. A cardinal principle of diplomacy is never to crush your opponent in a negotiation unless you expect the outcome to be definitive and final. What is perplexing, however, is that China is not gloating over a victory (although at least one senior U.S. official, quoted in The Washington Post anonymously, has referred to “a sense of triumphalism”). To the contrary, China appears to be sincere in its belief that the visit was a success for both parties, presumably understanding the meaning of such aphorisms and not trying to humiliate the President.

For President Obama, at least publicly, the trip to China was an investment with America’s bankers, and he was depositing good will. It was also intended as a foundation for a solid, long-lasting partnership. Chinese commentators believe he got what he said he was seeking. Xinhua reported, “When he left, analysts saw a new direction for developing the China-U.S. relationship, which had major significance, and believed the summit had rendered bilateral relations stronger.” Xinhua quoted Jin Canrong, deputy dean of the International Studies School at Renmin University referring to a “new goal” for the partnership as “positive and significant,” and Fu Menzgi, director of the Institute of American Studies at the China Institute of Contemporary International Relations ascribing “positive and new meanings” to the partnership. President Obama emphasized the need for mutual trust, and President Hu and Chinese commentators agreed. According to Xinhua, “Obama’s China visit turned to be fruitful. The two countries reaffirmed the new definition of their ties – a positive, cooperative and comprehensive relationship in the 21st century – as established by their heads of state, and enriched their relations and cooperation and more strategic connotation.”

Some critics think, however, that the President’s investment is naïve, the foundation less reliable than might be supposed, the rhetoric unsupported by anything of consequence. Writing in The Washington Post, Zhang Zuhua and Jiang Qishen counseled, “The Chinese government does not reciprocate when it is given things for free. It simply takes them and moves on. Foreigners may not know this, but to people in China it is plain as day.” They contend that the decision not to greet the Dalai Lama in Washington before traveling to China, the capitulation on attendees in Shanghai, the acceptance of a press conference with no questions, and the public silence on human rights were all things given away for free. They interpret the Chinese view of a “new direction” as diminishing the stature and role of the United States, taking advantage of a new, young, eager-to-please President.

Measuring Success And Failure

It may be that China and the United States are measuring success and failure differently. Americans may be inclined to consider the visit an optical failure because President Obama’s greatest populist skills, intelligent communication with “ordinary” people, were shut down by Chinese “micro-management.”

Many consider the visit a substantive failure as well, perhaps because President Obama spent only one full day out of three in serious meetings, mostly finalizing agreements reached before he ever got to China. None of the major items on his agenda – Iranian nuclear development and possible sanctions; climate change; global financial reorganization; valuation of the RMB; human rights and especially freedom of speech and communication – seemed to advance very much if at all.

The American presumption of a zero-sum game – American failure equals Chinese success – is not helped by the Chinese public expression of success, however two-way and sincere may be its intention. Most Americans see in the Chinese success a malevolent hand: a stage-managed, micro-managed visit that denied the President the rock star status he enjoys in much of the rest of the world and a denial of the priorities on his agenda. Some, such as David Lampton of Johns Hopkins University’s School of Advanced International Studies, predict “nasty” relations ahead because China’s celebration of the relationship now is little more than a prediction of an ascendant China replacing a declining United States on the world stage, casting the United States “in the role of the supplicant.”

Some critics of the trip (and they are by far in the majority among American commentators) contrast President Obama’s experience with the experience of his predecessors. Whether Nixon, Reagan, Bush, Clinton or Bush, admiring and enthusiastic crowds greeted the American President at Badaling (they all visited the Great Wall, and all in the same place). American-style press conferences were conducted; interactions with “ordinary” people were televised in China. This time, in Ying Chan’s words, there was “a package of faux public events” in which, he comments, “the Obama team” was “outmaneuvered.”

The contrast with predecessors is politically very damaging for Obama, whatever the long-term outcome of the visit for the bilateral relationship. It compounds an accumulating image at home of a president who avoids controversy through submission, whether on the critical details of a health care bill or on the entire manner of going to war, compromising in ways and with adversaries who seek only to exploit agreeability as manifestations of weakness more than courage. There is a growing American impatience with the President’s diplomacy, from the right over Iran, from the left over Afghanistan. And from the China visit there is an echo for some Americans of John F. Kennedy’s first encounter with Nikita Khrushchev, the young and inexperienced President faring poorly as the tough Soviet tested him in Vienna. It seemed China was testing Obama, and he yielded to Chinese preferences every time.

There was a context for the President’s performance in China. He had been excoriated in the American press for appearing deferential to the Emperor of Japan just before arriving in Shanghai. Sensitive Chinese leadership eager to work with the President as a partner would have recognized his precarious position and would have treated him fully as an equal, catering to his wishes as well as their own. Instead, either oblivious to what had happened in Japan or determined to pursue their own course regardless, the public display in China worked to confirm the impression from Japan of a young president perhaps too eager to please his foreign hosts.

That the trip to China likely contributed to this unflattering portrait at home strongly suggests that the next presidential trip to China will not come any time soon, and that President Obama will need to make up lost ground when President Hu Jintao visits the United States in early 2010. President Obama will need to regain the ground American popular opinion will suggest he lost, from being the lone superpower to being a mere equal with a developing country, or worse.

There are at least two superficial challenges here, and then a third that cuts more deeply into the relationship. Superficially, President Obama’s conduct in China was not inconsistent with his personality and governing style more generally. He has been no more forceful with Congress than with China. He conserves effort for the highest priorities and is inclined to let the symbolic be the worry of others. China may have been exploiting this perceived weakness when it may be little more than style, and the exploitation may have, for purposes of the long-term bilateral relationship, little meaning. Or, it could mean a great deal, and more favorably for the United States than critics suppose: having ceded the superficial symbolism, President Obama may have deposited good will for which he expects later, more important dividends. Many Chinese commentators, in claiming the bilateral relationship was stronger after the visit, seemed to endorse this calculation.

The second superficial challenge may be in distinguishing substance from style. Here the President may have a larger problem, for as a candidate he exploited his rock star receptions abroad to win favor and votes at home. As President, he cannot easily reduce to insignificance, therefore, how foreign nations receive him. He made those receptions important and now cannot escape them. He understood instantly that the Nobel Peace Prize, awarded by Norwegians on promise more than performance, could be more of a burden than a boon, and there was nothing he could do about it.

While there is already some evidence of dividends in quiet diplomacy, there are also troubling signs, particularly in the unaddressed agenda of trade, the third challenge that may cut more deeply. Most of what was visible in Copenhagen was more of the same: lower level Chinese officials publicly disagreed with the President of the United States in meetings that were to have been attended only by heads of state, and Chinese security attempted to bar the President from a meeting chaired by Premier Wen Jiabao. Yet, the breakthrough in Copenhagen, right after the visit in Beijing was not trivial: President Hu seemed to give in to the President on critical points that he had refused in Beijing. Perhaps it was easier when out of China than in, holding on to an independent public profile while getting to more substance . Perhaps there was some payback for the President’s conduct, or some fulfillment of private promises. The apparent progress in Copenhagen on climate change, an apparent failure on the Beijing agenda, is not matched, however, as to trade, which seems to be turning into the third rail of the relationship.

The Chinese view and communication of success, then, needs to be understood better. Did China celebrate the success of the visit because it got its way (no populism, no trappings of democracy, no embarrassments, almost no public criticism in China), or because the relationship for the future is stronger and better? If the latter, was the achievement not possible without wounding the President at home, or were wounds self-inflicted, consistent with the President’s personality and aversion to conflict and confrontation? Or, could China not have been more sensitive to the political risks for their new friend, the Pacific President (a potentially discomfiting double entendre), and permitted him to have more of what he asked symbolically?

There are at least two competing interpretations of the current situation. One refers to a new Chinese “swagger,” a confidence that China and the United States are moving in opposite directions and that the Chinese formula – a capitalist, authoritarian state – is more likely to succeed in the twenty-first century than capitalism and freedom.

China projected many signs of this view during the last year of the decade in addition to the President’s November visit. On the authoritarian side, it has openly restricted internet access and use. It has jailed protestors on transparent pretexts. It summarily executed a British citizen for drug trafficking despite international pleas to reconsider. And on the capitalist side, it has begun lending to American enterprises as diverse as Southwest Airlines and Wal-Mart in a global promotion of trade and investment. It has taken its WTO membership very seriously.

A second interpretation, that China’s actions are not merely expressions of confidence, even arrogance, lies in a cultural difference contributing to a growing mutual incomprehension. China never fails, when the United States appeals for its leadership on issues in its neighborhood – whether North Korea’s nuclear capabilities or Pakistan’s harboring of Al Qaeda – to remind the United States that it is a developing country. While demanding treatment as better than an equal (reveling in suggestions of a G-2 while demurring that it would not want such a thing) , it asks for substantial financial aid on global warming and technology transfer on energy efficiency. China wants to be revered and admired for its astonishing achievement pulling hundreds of millions out of poverty, but it also wants sympathy and help. It is happy to leave the most difficult global problems to American leadership, but it wants deference whenever it chooses to take a position. It wants to develop in its own way, on its own time, although it is also in a hurry. Chinese leadership worries every day that a retardation of economic growth could inspire dangerous protest, the kind of fear no American president experiences.

President Obama needs to address both theories in both substance and in symbols. As he tucked into his steak dinner in the Great Hall of the People with knife and fork, so President Hu perhaps should expect to dine with chopsticks in Washington, D.C., each side catering to the other’s cultural preferences and expectations. Perhaps only with such paradox will Chinese leaders understand the domestic damage the visit to China may have done to the President whom they profess to like and admire, and Americans will need to learn the cultural side of why the Chinese do not perceive American failure in the visit. It is not unlike the contrasting perceptions of the Beijing Olympics, whose disciplined coordination frightened many westerners while seen in a proud China as the success of an ascendant nation.

The Xinhua News Agency carefully selected only favorable comments from a handful of Americans who insisted the trip went well. Sometimes the spinning was transparent, as in a subtitle, “China Pulls U.S. Out Of Recession,” leading a quotation from President Obama that read, “China’s partnership has proved critical in our efforts to pull ourselves out of the worst recession in generations.” President Obama obviously did not credit China with pulling the U.S. out of recession. The bias in this reporting, however, seems to have reflected the sincere views of at least some Chinese authorities.

One well-placed source has explained that the acute attention to every detail of the Obama visit demonstrated China’s respect for the President. This idea is captured well by Ni Shixiong, a professor at Fudan University and an organizer of the sanitized Shanghai meeting. He said the organizers felt “there was no need to make both sides embarrassed and stop our guests in their tracks,” and that they did not want to upstage the subsequent meetings in Beijing. In Mr. Ni’s words, as quoted by Sharon LaFraniere in The New York Times, “The climax was in Beijing. We could not overshadow what really counted.”

“What really counted” in Beijing were prepared statements with no questions, and tourism with only one tourist. American reports indicate consistently that, however much the Chinese may have perceived they were honoring their guest by protecting him from potential embarrassment, they were not honoring his wishes, which had been for a different audience in Shanghai and more direct exposure to the people of China. Arguably, however, Chinese officials believe that, on their turf, they know best, and it is better to honor their own views of protecting their guest, rather than the views of the guest himself. There is more in this idea, unfortunately, than a mere whiff of “father knows best.”

Trade And Electric Cars

If Copenhagen were the first test of the new relationship, electric cars may be the second. In President Hu’s words, “I stressed to President Obama that under the current situation, both China and the United States should oppose and reject protectionism in all forms in an even stronger stand.” On the eve of the meetings, China initiated wide-ranging investigations alleging enormous subsidies (in the tens of billions of dollars) and dumping of U.S. automobiles sold to China, and just after the meetings the United States imposed prohibitive tariffs on oil country tubular goods (“OCTG”) from China. Neither action seems mindful of “the current situation,” nor that either China or the United States is opposing or rejecting protectionism.

The Obama visit to China produced a contradiction at the interstices of climate change, energy efficiency, and international trade. Presidents Obama and Hu announced on November 17 the launch of the “U.S. China Electric Vehicles Initiative,” following a U.S.-China Electric Vehicle Forum in September. According to the U.S. Department of Energy, “The two leaders emphasized their countries’ strong shared interest in accelerating the deployment of electric vehicles in order to reduce oil dependence, cut greenhouse gas emissions and promote economic growth.”

The Electric Vehicles Initiative is to be operationalized within the U.S.-China Clean Energy Research Center, created by a protocol on the same day, along with two other projects, building energy efficiency generally and developing clean coal, including carbon capture and storage. The program is extraordinarily ambitious considering that joint funding may be only $150 million over five years, split evenly between the two countries. Still, as a joint venture it is an important declaration of common good intentions and a commitment of government funds to solve a common environmental problem.

While China and the United States were convening in Beijing in September to discuss electric cars under the auspices of China’s Ministry of Science and Technology and the U.S. Department of Energy, China’s Ministry of Commerce was entertaining a petition requesting an investigation of alleged U.S. Government subsidies to develop electric vehicles. The petition’s complaint about government support for fuel efficient cars began with President Obama’s August 2009 announcement of $2.4 billion “to develop cells for new-fuel cars and parts & components.” The petition argued, “Ultimately, with R&D subsidies, the auto industry boasts advanced production technologies and levels, improve their product varieties and quality, and enhance competitiveness.” Such subsidies, the petition contended, violate Article 3 of Chapter 2 of the PRC Anti-subsidy Regulations.

For ten more pages, the petition focused on American programs promoting the development of fuel efficient and electric cars and buses, concluding “that the US government or the Congress, or governmental organs (especially the Department of Energy) funds R&D of electric vehicles in the form of grants, investment, injection of supporting funds, and all the programs involve fund transfer from the government to the auto industry.” The industry gained, the petition claimed, “a competitive edge” from this support.

MOFCOM initiated a subsidy investigation based on this petition days before President Obama’s arrival in Beijing. Support for fuel efficiency in 2009 had nothing at all to do with the petition’s target, “Saloon cars and Cross-country cars (of a cylinder capacity ≥ 2000cc) exported to the People’s Republic of China which originated and were manufactured in the United States.” Yet, MOFCOM did not exclude from its investigation the allegations aimed at support for R&D in fuel efficiency and electric cars, the very same support the Ministry of Science and Technology was promoting, at the very same time.

Amidst a great deal of chatter about retaliatory trade cases (particularly China’s pique over subsidy cases brought in the United States under President Bush while treating China as a “non-market economy,” beginning in November 2006, and the low-grade commercial tires safeguard enacted by President Obama in September 2009), it is easy to interpret Chinese actions (against American chicken parts, steel, and now automobiles) as merely a way for China to remind the United States of sauce for the goose. There is, however, much more to these actions. Notwithstanding the apparent agreement in Pittsburgh at the G-20 meeting that “rebalancing” requires more American saving and more Chinese spending and consuming, China’s growth remains predominantly export-driven. It still needs Americans, and Europeans and Canadians, to buy its products. As much as exports are helping lift the United States out of recession, the Chinese market still lags behind Canada and Japan. China knows it needs the U.S. market more than Americans need to sell to China. Undertaking these investigations, therefore, must be about more than the allegations themselves.

China, or at least MOFCOM, may now think a way to keep open the American market is to warn that it could close its own. In the automobile petition, it also appears to be a way to remind the United States that its own subsidy allegations against China as a non-market economy are being advanced from a glass house. This trade-off, however, remains unbalanced and legally unsound. The U.S. Department of Commerce, for all its protectionism, would not likely have initiated an investigation into allegations that have little or nothing to do with subject merchandise. Assistance for the future development of electric cars has little or nothing to do with saloon and cross-country vehicles already imported into China. Should China link these alleged subsidies to the subject merchandise in final findings, the WTO almost certainly will reject the link.

There is no sensible way to reconcile MOFCOM’s investigation into electric car subsidies with the joint Electric Vehicles Initiative proclaimed by the two presidents. The U.S.-China Clean Energy Research Center is expected to raise and distribute public and private funds for joint research and development on electric cars, the very thing MOFCOM decided to consider as illegal and subject to trade restrictions and penalties. While President Hu was insisting upon President Obama’s concurrence to resist protectionism, and was celebrating joint research and development to overcome the environmental scourge of carbon emissions from automobiles, President Hu’s Ministry of Commerce was launching a hostile investigation into every American effort to solve that very problem.

It is not as if China were not playing by the rules. The Chinese Anti-Subsidy Regulations are translated almost verbatim from the WTO’s Subsidies and Countervailing Measures Agreement. The countervailing duty laws in the United States, based on this same international agreement, routinely are invoked by U.S. industries to complain about the same kinds of programs identified in the United States by the Chinese petition, and the United States Department of Commerce routinely finds such subsidies in violation of U.S. law and international norms. The Department of Commerce regularly now imposes countervailing duties on Chinese goods (more than a dozen times since 2007) when U.S. industries have complained about Chinese government financial support in a variety of forms. And China, in its investigation of electric vehicles, appears to be pursuing a theory long popular in the United States, that all money is fungible and any government assistance, for any purpose, when within the same company, impacts subject merchandise. Although the U.S. Department of Commerce has experienced judicial setbacks in stretching this theory, MOFCOM has not. Notwithstanding that MOFCOM likely will lose a legal showdown on this theory, if not at home then at the WTO, there is no legal impediment to trying.

Certainly one way to combat the American proclivity to impose countervailing duties on Chinese products is to serve up to American industry, especially prominent industry, high doses of the same medicine. It is also logical to emphasize the overbearing presence of the U.S. government in some sectors, such as automobiles, while combating the American treatment of China as a non-market economy. But such actions hardly reflect President Hu Jintao’s promise to combat protectionism “in all forms” and to promote a stronger, deeper partnership to solve common problems.

Nor is China combating protectionism in all forms when resisting U.S. trade actions. Unlike other countries, China is not appearing before the United States International Trade Commission to challenge injury allegations. It is not appealing adverse agency determinations in U.S. courts. It is not pursuing administrative reviews of countervailing duty orders, when final duties are determined and set for collection. Instead, China is counting on the WTO for trade vindication, a strategic choice almost certain to disappoint.

The only publicly disclosed item on President Obama’s trade agenda in Beijing was the value of the RMB. He apparently made no more progress on this subject than his predecessor, and of course the United States does not comment publicly on “the weak dollar” which, according to Dana Hedgepeth in The Washington Post, “has made it easier for U.S. manufacturers of parts for appliances, automobiles and other equipment to compete globally on price and is helping them win back business lost to overseas competitors, a shift that economists say should help the country’s economic recovery.” That description sounds like a strategy for pulling out of the recession, delivering to the United States exactly the same benefit about which the United States has complained so loud and long with respect to China.

Economists are distinguishing between the weak dollar and the undervalued RMB. Although China may be acting legally, they say China is not acting fairly nor wisely. Countries disadvantaged by China’s currency policy may have no legal complaint, but China’s policy may entitle them to complain about trade on other grounds. Even free traders see protectionism, confronting China’s mercantilism, as justifiable.

On New Year’s Eve, Nobel Prize winner Paul Krugman wrote in The New York Times, “China has become a major financial and trade power. But it doesn’t act like other big economies. Instead, it follows a mercantilist policy, keeping its trade surplus artificially high. And in today’s depressed world, that policy is, to put it bluntly, predatory.” Krugman goes on to indict specifically China’s currency policy: “In the past, China’s accumulation of foreign reserves, many of which were invested in American bonds, was arguably doing us a favor by keeping interest rates low … But right now . . . that trade surplus drains much-needed demand away from a depressed world economy. My back-of-the-envelope calculations suggest that for the next couple of years Chinese mercantilism may end up reducing U.S. employment by around 1.4 million jobs.”

“The Chinese refuse to acknowledge the problem,” Krugman writes. “Recently Wen Jiabao, the prime minister, dismissed foreign complaints: ‘On one hand, you are asking for the yuan to appreciate, and on the other hand, you are taking all kinds of protectionist measures.’ Indeed: other countries are taking (modest) protectionist measures precisely because China refuses to let its currency rise. And,” Krugman concludes most conspicuously, “more such measures are entirely appropriate.”

In making currency valuation the only trade issue on his Beijing agenda, President Obama may have been treating it as a surrogate for other trade concerns. However, he thereby avoided confronting the massive government interventions in the economy that unavoidably contravene the rules of the WTO when products benefiting from these interventions are exported. China is now calling the United States on the very programs essential to economic recovery, and as China is unwilling to discuss the value of the RMB, the United States apparently is unwilling to discuss its massive subsidies to banks, automobiles, and other economic sectors.

That China would threaten American trade, both by refusing to discuss currency valuation and by launching cases against American exports, while entertaining the President and applauding new cooperation, should worry everyone sharing agendas of economic recovery and environmental improvement. That the United States should persist in imposing countervailing duties on Chinese products because they benefit from state support should be equally worrisome. There is an inescapable hypocrisy in countervailing loans from Chinese banks going to Chinese goods exported to the United States while American companies are borrowing from the same Chinese banks and the United States has been taking virtual ownership of the key private financial institutions lending to American enterprises.

Embedded in these actions – an effective refusal to confront honestly the pressures of the recession as they impact trade laws and practices -- is either a cultural misunderstanding, a failure to communicate, an intellectual dishonesty, or some dangerous combination. It catapults trade, the subject apparently left behind in Beijing, to the head of an agenda about recovery and climate change. Unfortunately, either the two Presidents do not yet know it, do not want to know, or are ill-equipped to deal with it.

A Further Meaning

China wants the sympathy to be accorded a developing nation historically deprived and exploited, but it also wants the respect of a major power. It wants the United States to provide aid and technology transfer for climate change, but it also wants joint ventures on the basis of equality. It wants President Obama to believe he is admired and respected while it wants him to behave according to Chinese norms and with full respect for Chinese preferences. President Obama seems to have understood these mixed messages and tried mightily to satisfy them all. In 2009 he placed China at the center of his foreign policy, continuing everything he thought good about the Bush Administration’s approach to China, and expanding upon it. In the process, he opened himself to criticism that he satisfied none of China’s expectations, and diminished himself and the United States in the process.

This Chinese paradox inevitably arouses suspicion. China’s celebration of a successful presidential visit may endorse future partnership, but it may also signal an interpretation of a long-term reversal of fortunes. Again, the automobiles petition may be one of the clearest possible statements of Chinese intent, and some Chinese trade experts believe it is an expression of MOFCOM’s own views, perhaps even the product of MOFCOM’s own drafting. It may enable President Hu to say one thing and mean another, his Ministry of Science and Technology devoted to cooperation and government support for technical and technological development, his Commerce Ministry evening the score with American trade agencies by aggressively seeking remedies for state involvement in the economy.

The automobiles petition characterizes the automotive industry as the most important in the United States, “a pillar industry playing a key role in the stability and development of the U.S. economy.” It then accuses past American presidents as acting consistently “to protect the U.S. automobile industry,” but concludes that they failed: “instead, the policies eventually resulted in the decline of the industry.” The protective subsidies “severely violated the relevant provisions of the WTO and distorted the normal market competition.” The petition barely disguises its view that this decline is emblematic of a greater decline of the United States.

The message about decline and bankruptcy is matched by the contrasting description of China’s industry and, without much subtlety, China. However, the most important element of the contrast, the one that raises the most important questions about world trade, contends that China’s rise is attributable to the shedding of state influence, to “the reform and opening up” of China. The petition wishes the legacy of state support to disappear in the mists of time, and pretends that none effectively remains. It wants its audience to believe that the state-driven economy is now in the United States; China is the paragon of a free market.

The automobile industry is the vehicle for this grander argument and seems, therefore, deliberately chosen at the highest levels of the Chinese government. It was bound to get American attention.

Before describing the rise and fall of the U.S. industry, from its creative days as a free enterprise a century ago to its demise at the hands of the state at the dawn of the new millenium, the petition offers a history of the Chinese industry: “By 2008, three decades have passed since the reform and opening up of the country, which is also three decades of reform and opening up of China’s auto industry. In three decades, China’s vehicle production developed, from producing 149,000 vehicles to 9.5 million vehicles, and from less than 1% of world production to nearly 13%. In 2007, car ownership in China exceeded 43 million, ranking fourth in the world. The automotive industry employed 2.91 million people, and employed more than 30 million in related industries.” This astonishing growth, so the petition claims, resulted from free enterprise: “China’s automobile industry grew in strength in the reform and opening up, rapidly becoming one of the world’s largest automobile manufacturer and consumer, and since joining the WTO six years ago, it has achieved the most prominent and fastest sales growth in history.”

The argument of the petition is that China’s automotive ascent matched exactly the U.S. decline, and that as China liberated economic forces, the United States constrained them. Implicitly, as the last century belonged to America, the new one belongs to China. Of course, none of this story has anything to do with trade laws entitling China to impose tariffs on American goods. Instead, the automobile industry here is a surrogate for contrasting the fortunes of China and the United States, a way of saying that the Chinese formula of authoritarian capitalism is better than the American way.

In the new century, China has been innovating, so the automobile petition claims, while the United States has fumbled (the translation apparently was prepared in the Office of the United States Trade Representative but may have originated elsewhere, and is decidedly less elegant here than in some other passages):

Automobile industry is one of the most important pillar industries in America, with a huge number of employees. Less efficient, poor management, and high cost have long since hovering American automobile and keep it down. Under the impact of the economic crisis, American automobile industry is between the beetle and the block. All three top forms are driven to corner. President Obama once declared in public, ‘I may not, can not, and will not let our automotive industry perish . . . It is a pillar of our economy, it is where millions of dreams dwelt.’ Just like what Obama had said, above measures is only the first step. US government will take further measures in domestic automobile industry, and help them get through the difficult period of reorganization. No to mention the competitive power of American new energy vehicles, just from the fact that the government spent such a huge capital and appointed the three top automobiles of General Moto [sic], Ford and Chrysler for its new energy automobiles procurement, we can see that the US automobile industry and new energy automobile project to walk out of their embarrass [sic].

Such statements are rich in irony. They expose resentment of presumed American advantages, criticism of American performance, and rejection of American efforts to stand in the way of a rising China. They demand immediate action because the United States has taken but a “first step” in trying to overwhelm the developing Chinese industry. And since new-energy vehicles define the American strategy for saving its automobile industry, it is the government support for the new-energy vehicle that must be stopped.

President Obama likely did not know, when he used the term “pillar,” that it is a favorite of Chinese central planning and the frequent target of the U.S. Department of Commerce in its assault on alleged Chinese subsidies. The petition authors likely salivated over the American use of the term, confirming their worst suspicions of an American conspiracy to thwart an ascending China by blocking its exports to the United States while shipping to China subsidized goods.

What Now?

The contradiction between the Electric Vehicles Initiative and MOFCOM’s investigation of alleged subsidies to U.S. automakers translates into a much larger problem of cultural misunderstanding and trade protectionism. It echoes the contrasting views of success and failure in the President’s visit in China. It tests whether China and the United States will be able to cooperate or be forced to compete antagonistically. It requires the United States to reexamine the most fundamental aspects of its trade policies and address its hypocrisies, particularly over subsidies and currency valuation. It requires China to tell an honest history and to deal forthrightly with the engagement of the state in the economy.

The avoidance of a trade agenda during President Obama’s visit suggests that neither country is ready for the conversation that could determine the future of the world. Both may well want the same things for the health and prosperity of their societies – gainful and productive employment, clean air to breathe and safe food and water to eat and drink. Both may know, abstractly, that they must trade freely with each other in order to achieve these simple and precious goals. But so absorbed is each country in saving itself that they cannot even talk effectively about saving each other. Instead, they are wrapped in paradoxes and contradictions, leading Krugman to warn that “the victims of [ ] trade mercantilism have little to lose from a trade confrontation.”

China invited the President, deft with chopsticks, to eat with a knife and fork in China, yet one more detail detaching him from the Chinese people and, consequently, from his popular image at home. President Hu’s visit to the United States will, therefore, be all the more important, for its substance and for its symbols. President Obama will demonstrate either that his personality inevitably produces a portrait of unnecessary compromise when China pushes hard, or that as host he can restore his own aura by setting the terms and tone that win at home without exacerbating the tensions already rising between the world’s most significant powers.

 

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Media Mentions 2010: First Quarter

Members of the Baker Hostetler International Trade practice have been quoted in numerous media outlets regarding various Chinese -U.S. trade issues, including:

Kavita Mohan: India Law News: An Update on India and the Doha Round (3/3/10)

Dr. Elliot Feldman: China Business Law Journal: China Targets the West (2/26/10)

Dr. Elliot Feldman: ITCB Threads: Rags to Riches to Rags? Textile Trade Policy in the U.S. After the Quotas (2/4/10)

Dr. Elliot Feldman: China Economic Review: Home or Away? (1/7/10)

Dr. Elliot Feldman: International Trade Law360: The China-US Trade War (1/6/10)

Steel Matters 举足轻重的钢铁工业

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Besides currency valuation, steel is perhaps the most contentious trade issue between China and the United States. Steel products face numerous traditional trade remedy actions in both countries, and are under intense scrutiny in the climate change debate. In the United States, Congress is considering whether to include in climate change legislation additional tariffs on imported steel and other energy-intensive products to offset alleged competitive harm to domestic industries, should other countries not commit to equivalent greenhouse gas (“GHG”) reductions.

China And Copenhagen
China’s chief climate negotiator, Vice Chairman of the National Development and Reform Commission (“NDRC”) XIE Zhenhua, visited India at the end of October where he signed the Agreement on Cooperation on Addressing Climate Change. China and India together called on developed countries to take the lead in reducing GHG emissions and provide financial resources, technology transfer and capacity building support to developing countries.

It was not surprising for the world’s leading GHG emitter to form an alliance with India, another rising industrial power, on the eve of the Copenhagen meeting. Indeed, it was a victory for China to obtain India’s assurance that there “was virtually no difference between the negotiating positions” of the two Asian giants.

China slightly softened its stance in the final negotiations at the Copenhagen meeting, and signaled a willingness to abandon its demand for funding from the developed world. Meanwhile, China's State Council announced that China would stick to its promise to cut emissions per unit of GDP by 40 to 45 percent by 2020.

Although China thinks this promise to cut emissions is a large concession, it may not be viewed that way from the perspective of developed countries, or of those developing countries that are particularly at risk from climate change. With China’s economy expected to expand at a rate of 7 to 10 percent per year for the next decade, a 45 percent reduction per unit of GDP would mean that China’s GHG emissions would still rise substantially while China expects developed countries to make drastic reductions.

Climate Change And The Steel Industry
Even though China’s promise is not binding, Beijing is not paying mere lip-service to climate change. China has realized that it is in its interest to improve energy efficiency, particularly in the steel sector. Improved energy efficiency is the most cost effective way that China can lower its GHG emissions.

A case study of Hebei Province, China’s leading iron and steel producer (18 percent of the nation’s total iron and steel output in 2007), illustrates the benefit to China of improved energy efficiency, with reduced GHG emissions being a favorable side effect. The case study also demonstrates the difficulties Beijing faces in pushing local governments to shut down small and inefficient steel mills.

Low energy efficiency is one of the reasons why Hebei’s contribution to the nation’s economic growth lags behind coastal provinces. Gross industrial output created by Hebei’s large companies in 2007 was US$230.5 billion (RMB1,705.5 billion), accounting for 4.2 percent of China’s total; industrial value-added was US$65.2 billion (RMB482.3 billion), about 4.1 percent of the nation’s total. In contrast, the same indices for coastal Jiangsu Province, also a major steel producer, were roughly three times those of Hebei (13.2 percent and 11 percent respectively).

Increasing energy efficiency, and reducing GHG emissions, in Hebei’s steel industry depends upon closing old, inefficient mills. However, both the provincial government and the public are reluctant (or unable) to force the iron and steel industry to close those mills. Hebei Province relies heavily on energy intensive industries. It has attracted 112 of China’s Top-1000 energy consuming enterprises, with steel companies the most important. The industrial profit generated by the province’s large ferrous metal producers was US$6.8 billion (RMB50 billion) in 2007, 27.3 percent of the province’s total industrial profit produced by large companies in all industries. Steel employed in 2008 some 450,000 workers, 15 percent of the province’s total employment. As the unemployment rate is rising in Hebei, neither the provincial government nor the public wants to see those small inefficient steel mills closed.

So far, the province has taken one major step to improve the steel industry’s energy efficiency. It consolidated the province’s top two steel groups and launched the Hebei Iron & Steel Group (“HBIS”) in 2008, which became China’s number two steel producer. The creation of HBIS was to improve the competiveness and efficiency of Hebei’s steel industry. However, a recent Chinese study pointed out that China’s giant iron and steel producers are not necessarily more efficient than smaller companies. Compared to the size of a steel company, technology plays a more important role in improving efficiency, particularly energy efficiency.

As in the United States, steel is a major employer in China, and as in the United States, there is insufficient political will to sacrifice steel industry jobs on behalf of climate change. Industry consolidation is inevitable in China as it has been in the United States, but data do not support the perception that fewer, bigger steel mills must translate into reduced GHG emissions. It is not so much size as age that matters. Inefficiency may drive smaller, older mills out of business, but they are less likely to shutter because of a desire to clean up the environment.
 

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Setting The Record Straight: The U.S. Is Open For Chinese Business; Don't Worry Too Much About National Security Reviews 美国向中国企业敞开大门,请勿过分担心国家安全审查

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Chinese and other foreign companies considering investments in the United States often are confused about the degree to which the United States is open to foreign investment. They hear terms such as CFIUS, Exon-Florio and FINSA and claims that the United States is now hostile to foreign investment, especially from China and the Middle East.

The reality is that the United States remains one of the economies most open in the world to foreign investment. When it comes to greenfield investments creating new businesses in the United States, foreigners are as free to invest as domestic concerns. The United States does have procedures for reviewing foreign acquisitions of existing businesses under the Foreign Investment National Security Act of 2007 (“FINSA”), conducted by the inter-agency Committee on Foreign Investment in the United States (“CFIUS”), presided over by the U.S. Treasury Department. However, as the Treasury Department noted when it published its CFIUS guidance, “CFIUS focuses solely on any genuine national security concerns raised by a covered transaction, not on other national interests.”

Notwithstanding today’s difficult economic climate and the confusion over national security reviews of foreign investment, Chinese companies obviously remain interested in acquiring U.S. companies. For example, on October 23, 2009 BGP Inc., a subsidiary of China National Petroleum Corporation, agreed to a joint venture with ION Geophysical Corporation, a Houston, Texas based company specializing in seismic products used in oil and gas exploration. According to ION’s press release, the transaction, which would result in the Chinese company owning 16.66% of ION, is contingent upon obtaining clearance of the transaction from CFIUS. This proposed acquisition is likely to face an exhaustive and extended CFIUS review because it is in a particularly sensitive sector, energy, and the ultimate acquirer is a Chinese state-owned enterprise. Although CFIUS may require some conditions designed to mitigate national security concerns, the transaction probably will be approved.

Congress passed FINSA in 2007 following controversies over the China National Offshore Oil Corporation’s attempted acquisition in 2005 of Unocal, a U.S. energy company, and Dubai Ports World’s acquisition in 2006 of a British company that managed several major seaports in the United States. These controversies focused congressional attention on CFIUS; the earlier Exon-Florio procedures for review of foreign acquisitions; potential harm to U.S. national security that could arise from foreign control of energy, infrastructure and critical technologies; and on investments by state-owned entities. The public debate over these cases and a new law, however, was not one-sided and the Administration convinced Congress to balance national security concerns with the need for the United States to remain open to foreign investment. FINSA, legislated on July 26, 2007, is not a barrier to foreign investment, but a balance of investment with national security.

FINSA covers any transaction that “could result in control of a U.S. business by a foreign person.” It covers transactions that could result in the switch of control from one foreign person to another. However, it does not cover greenfield investments or a strictly real estate transaction. Control over an existing U.S. business must be at stake. “Control” is defined very broadly. Thus, even the acquisition of a relatively small minority stake in a company could be covered by FINSA.

FINSA does not pose a significant barrier to the vast majority of foreign acquisitions of U.S. businesses because, although all such acquisitions are covered transactions, the President’s authority under FINSA to suspend or prohibit a covered transaction can be exercised only when the President finds that “the foreign interest exercising control might take action that threatens to impair the national security.” Neither the statute, nor its implementing regulations, defines “national security” and Congress intended CFIUS to interpret that term broadly to include, among other things, energy, critical materials, critical technologies, homeland security and infrastructure. Nonetheless, where there is no plausible connection between the business conducted by the U.S. company to be acquired and national security, FINSA will not be an issue.

Whenever a transaction covered by FINSA might affect national security, FINSA provides a review process whereby the parties to the transaction can seek clearance from CFIUS before they have invested a great deal. A CFIUS review is not mandatory, but companies generally seek one whenever there is a possibility that the transaction could be considered to affect national security. Once a transaction has been cleared by CFIUS, it cannot subsequently be challenged under FINSA unless one of the parties to the transaction submits false or misleading material information.

Companies take advantage of the CFIUS safe harbor – the preclearance -- by submitting a voluntary notice of a proposed transaction providing the detailed and extensive information that CFIUS’ regulations require for such notices. The filing of the notice commences a 30 day initial review process. Most transactions are cleared within this initial 30 day period.

When any of the CFIUS member agencies have unresolved national security concerns with a proposed transaction, a formal 45 day investigation begins. The parties typically resolve transactions that go through this second stage by agreeing with the government to mitigate the agencies’ national security concerns.

Mitigation agreements can involve modifications to the transaction, certain limitations on the new foreign owner’s exercise of control, or extra protections for critical technologies or facilities. A very small number of transactions pose national security concerns that cannot be mitigated successfully. Those transactions usually are abandoned before the completion of the CFIUS process. It is rare for CFIUS to complete its review with a recommendation to the President that a transaction be blocked.

The United States remains committed to an open investment environment, treating foreign investors on an equal footing with their domestic competition. It was for this reason that Congress set the initial CFIUS review deadline at 30 days, to coincide with the 30 day antitrust review period for mergers and acquisitions. The expanded view of national security mandated by FINSA does mean that CFIUS national security reviews are a crucial part of transactions involving foreign investment, but it is no more onerous than an antitrust examination.

Most important for success in a CFIUS review is understanding in advance the concerns of CFIUS member agencies, creative thinking about how to demonstrate that those concerns are not threatened, and where perceived threat may be reasonable, creative proposal to mitigate them. In most cases early attention to the CFIUS process and to the legitimate concerns of the member agencies, Congress, and the public, can ensure smooth and timely proceedings that result in CFIUS clearance without restrictions, or on terms that preserve the value of the transaction for all parties.

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Media Mentions 2009: Various Trade Issues