Certainly, the market access provisions seem close to the liberal package China agreed to in April and therefore heartening. But on key issues such as administered protection through the use of selective safeguards, antidumping actions and transparency (relating to commercial law and legal due process), the deal appears wanting and potentially retrograde. Finally, it appears that U.S. negotiators have also missed an important opportunity to use the accession process to force the Chinese to introduce greater transparency in their commercial laws and administrative procedures as they affect foreign businesses and investors.
First the good news on market access and tariff reduction. Despite adamant opposition from strategic industrial sectors and their allies in Beijing, President Jiang Zemin pushed through a market‐opening package that will certainly gladden the hearts (and, they hope, the pocketbooks) of Western businessmen. Thus, industrial tariffs will be cut to 17% from an average of 21%, and agricultural duties to 14.5% — 15%. China will also end export subsidies of agricultural commodities.
In a separate automobile package, China promised to phase down tariffs to 25% from over 80% by 2006 and grant foreign car manufacturers the authority to provide financing for car purchases. In addition, foreign auto companies are given full distribution rights — indeed, henceforth all foreign industrial manufacturers will be able to import and export without Chinese middlemen and provide after‐sales repair and maintenance.
The most difficult issues arose in the trade in services area, particularly with regard to telecommunications and financial services. And here, too, the new agreement comes close to the liberal concessions of April. Telecommunications companies, now restricted to equipment sales, will be able to control 49% of telecommunications service companies upon accession and 50% two years later. Despite statements as recent as last week from China’s Minister of Information Industries, Wu Jichuan, that foreigners will not be able to invest in China’s internet operations, the current agreement does allow for such investment.
Finally, in the financial services — banking, insurance, securities — foreign banks will be able to conduct business with local enterprises in local currency upon Chinese accession; and after five years, these banks will be able to provide services directly to individual Chinese consumers. On securities, accession brings a ceiling of 33% foreign ownership for fund managers, with this figure rising to 49% after three years.
The downside of the new agreement stems from the very long periods carved out for the United States and other industrial nations to “manage” trade with China. This will be done using “safeguards,” actions that permit supposed temporary protection against a sudden influx of imports that threatens sudden injury to a domestic industry.
Under current WTO rules, nations can institute safeguards for a four‐year period, renewable once. They cannot single out individual nations for special action, and they must gradually phase out the protection. Under the new agreement, however, the United States forced the Chinese to accept this highly protectionist action for 12 years, or in the crucial textile sector for nine years.
Similarly, the U.S. demanded long‐term manipulation of trade flows through the application of special antidumping methodology. Dumping in trade terms is defined as selling below costs at an “unfair” price. Even for market economies, economists with virtual unanimity condemn antidumping actions as a protectionist front for uncompetitive domestic industries.
The Clinton administration, however, proposes to worsen the situation by continuing to define China as a “nonmarket economy” for 15 years, thereby perpetuating an even more arbitrary methodology to determine whether Chinese exports are “unfairly” traded. Using non‐market criteria allows the complainant to ignore local Chinese prices and use surrogate or constructed prices, a practice which allows large‐scale manipulation of data, as the U.S. Commerce Department has ably demonstrated over the years.
Cynically, U.S. Trade Representative Charlene Barshefsky stated that U.S. laws do “provide for the graduation of sectors or an economy as a whole from [non‐market] rules,” knowing full well that U.S. government agencies in recent years have cravenly succumbed to interest‐group pressure against such graduation. China will be in anti‐dumping limbo for the full 15 years.
There is a two‐fold danger in this result. On the one hand, protectionist interests within WTO countries will become accustomed to the protection afforded by “managing” trade and will move heaven and earth to perpetuate the system in the future. On the Chinese side, it sends just the wrong message to government bureaucrats who will preside over the export quotas on Chinese companies which will surely result from the safeguards and antidumping actions. The old‐style Communist “command and control” attitude thus will be all the more difficult to eradicate.
Finally, this accord’s apparent silence with regard to transparency will create problems. Given the primitive state of Chinese law and administrative procedures, foreign businesses face years of daunting obstacles when commercial disputes arise.
Transparency and contingency protection measures do not have the sex appeal of market access negotiations so dear to the hearts of Western businessmen. But mistakes made in these areas are likely to haunt the WTO for years to come.