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Mission (Im)Possible? Could the WTO Save Chinese Courts? Chien-Huei Wu* ABSTRACT Thi sar t i c l ee x ami ne sChi na’ sWTO obl i gat i ont opr ov i dea ni nde pe nde nta nd impartial judicial review. It starts with the analysis of the legal text and the existent jurisprudence in the WTO law. After this analysis, I find that the existent WTO law and jurisprudence does not offer clear guidance with regard to this obligation. I then argue in this article that international and regional standards of independence and impartiality of courts can offer insight for the interpretation of this obligation. Various case laws laid down by European Court of Human Rights are also relevant. After ascertaining the criteria to be applied, I then examine the existent progress made by China in order to fulfill its WTO obligation, focusing mainly on the administration of justice; the interaction between legislative interpretation and judicial interpretation; the adjudicative committee; and the case guidance system. I then conclude the existent practices in Chinese courts will not be able to pass the scrutiny of the Panel and the Appellate Body of the WTO, and point to some fundamental problems in relation to Chinese courts. Keywords: WTO, Judicial Independence, Impartiality, Judicial Review *

Ph D Candidate European University Institute (EUI) at Florence. E-mail: chien-huei.wu @eui.eu. An earlier draft was presented in 2007 Joint Meeting of the Law and Society Association and the Research Committee on Sociology of Law (ISA), in Berlin. The author wishes to thank participants in 4114 session. The author also wishes to thank Professor Ernst-Ulrich Petersmann for his valuable comments on the earlier draft and for his continuous encouragement. Further, the author is greatly appreciative of the valuable comments and suggestions of anonymous reviewers. Nevertheless, any error remains my own. Before this acknowledgement becomes too long, I also want to thank Professor Tzong-Li Hsu and Chang-Fa Lo for their benevolence both in my studies and in my difficult decision of future career. Being a Doctoral student, and at the same time, a father, a son and a husband is never an easy thing. I want to express my deepest gratitude for my parents, my love to my son and my daughter, and most importantly, my gratefulness to the endless companion and support of my wife.

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CONTENTS I.

INTRODUCTION ...................................................................................... 63

II. CHINA’ S OBLIGATION TO PROVIDE AN INDEPENDENT JUDICIAL REVIEW ................................................................................................. 66 A. Domestic Judicial Review in the WTO Law .................................... 66 B. Chi na’ s Accession Protocol to the WTO ......................................... 67 C. The Possibility of A Complaint in the WTO and Approach for the Interpretation of WTO-plus Obligation........................................... 83 III. GLOBAL AND REGIONAL STANDARDS IN RELATION TO INDEPENDENCE AND IMPARTIALITY ...................................................... 86 A. Independence .................................................................................. 87 1. Institutional Independence........................................................ 87 2. Individual Independence........................................................... 92 B. Impartiality ..................................................................................... 94 IV. JUDICIAL REVIEW IN CHINA: LAW AND PRACTICE ................................ 96 A. Progress So Far Made .................................................................... 96 1. Second Five-Year Court Reform Program ................................ 96 2. Judicial Interpretations in Relation to Trade-Related Issues.... 98 B. Task Half-Accomplished: the Independence and Impartiality of Chinese Courts.............................................................................. 100 1. The Administration of Justice ................................................. 100 2. Legislative Interpretation and Judicial Interpretation............ 102 3. Adjudicative Committee.......................................................... 104 4. Case Guidance System............................................................ 106 V. CONCLUDING REMARK ....................................................................... 107 REFERENCES ............................................................................................... 109

2008] Mission (Im)Possible? Could the WTO Save Chinese Courts?

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I. INTRODUCTION Chi na ’ sa c c e s s i ont ot heWor l dTr a deOr g a ni z a t i on( t heWTO)ha s attracted much attention and a variety of scholarly work has been devoted to this issue.1 A less explored subject is Ch i na ’ sWTOob l i g a t i onwi t hr e g a r dt o the independent judicial review. Although Chinese judicial reform has been, from time to time, related to its WTO accession, little literature examines whether the progress so far made suffices itself to pass the scrutiny from the WTO dispute settlement mechanism. This obligation is of great significance both to the WTO law and to Chinese legal system. Wi t hr e g a r dt heWTOl a w,t hi s“ i nd e pe nd e ntj udi c i a lr e v i e w”ob l i g a t i on prescribed in the Protocol on the Accession of Pe op l e ’ sRe p ub l i co fCh i nat o the WTO ( he r e i na f t e rCh i n a ’ sAc c e s s i onPr ot o c ol )i sc i t e da sa ne xa mpl et o justify the argument that WTO law should not be interpreted in purely economic terms, and that its legal and political objectives are no less important than trade liberation. As the WTO Agreement does not only employ formal constitutional techniques, but it also embodies various substantive constitutional principles, the WTO law shares major features of constitutionalism, and can be thus conceived as a part of the multilevel constitutional framework in multilevel trade governance.2 It is claimed that “ t heWTO Ag r e e me nti son eoft h emos tr e v ol u t i on a r yt r a ns f or ma t i v e 3 a g r e e me nt si nt hehi s t o r yofi nt e r n a t i ona ll a w. ” As for the impact of this obligation on Chinese legal system, shortly 1. Ac c o r d i n gt oBh a t t a s a l i ’ so b s e r v a t i o n ,three main approaches are employed to look upon China’ s WTO membership. One is from the perspective of the legal rights and obligations, examining c h a l l e n g e si n v o l v e di nme e t i n gCh i n a ’ sl e g a lc o mmi t me n t sa n di ne n s u r i n gt h a tCh i n a ’ sr i g h t sa r e maintained. Another approach places the emphasis on the trade and policy changes, and explores what efforts to be made with the aim to integrating China’ s open market into the global economy. The third one is to see how China’ s WTO membership serves as a key component in the restructuring of the Chinese economy as well as other policy goals, notably, its peaceful emergence as a great trading power. See DEEPAK BHATTASALI ET AL., Impacts and Policy Implications of WTO Accession for China, in CHINA AND THE WTO: ACCESSION, POLICY REFORM, AND POVERTY REDUCTION STRATEGIES 1 (Deepak Bhattasali et al. eds., 2004). 2. ERNST-ULRICH PETERSMANN, Multilevel Trade Governance in the WTO Requires Multilevel Constitutionalism, in CONSTITUTIONALISM, MULTILEVEL TRADE GOVERNANCE AND SOCIAL REGULATION 32-33 (Christian Joerges & Ernst-Ulrich Petersmann eds., 2006). Petersmann argues that WTO law uses the formal techniques of (1) the distinction of long term constitutional rules and post-constitutional decision making; (2) the legal primacy of the WTO Agreement over conflicting provisions in the Multilateral Trade Agreements annexed the WTO Agreement; and (3) protection of freedom of trade, most-favor-nation treatment, national treatment, private property rights and rule of law subject to broad exceptions to protect public interests. He also argues that four substantive principles are included in the WTO law: rule of international law, the respect of universal human rights obligations of WTO members, separation of powers and the concern of social justice. 3. ERNST-ULRICH PETERSMANN, DISPUTE PREVENTION, DISPUTE SETTLEMENT AND JUSTICE IN INTERNATIONAL ECONOMIC LAW (Forthcoming).

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a f t e rChi n a ’ se nt r yi nt ot heWTO,t h ev i c e -pr e s i de n toft heSupr e mePe op l e ’ s Cour td e l i v e r e das p e e c hon“ Chi n aa n dt her u l eo fl a w, ”s t a t i ngt ha tt he accession to the WTO would have a profound impact on both the rule of law and the judicial reform in China, even though he thought the existing legal system on administrative procedure and judicial review had already met the requirements of the WTO.4 This statement seems not so convincing. On the contrary, Chinese judicial system should be reformulated in order to fulfill i t sWTO ob l i g a t i on.I ti spoi n t e do utt ha tCh i na ’ sa c c e s s i ont ot h eWTO constituted an unprecedented opportunity to its judicial reform by reshaping the relationships among courts, local governments and the Chinese Communi s tPa r t y ,s i nc eChi na ’ sa c c e s s i onha sputi t se c onomi c ,l e g a la n d political system under strict scrutiny. The fact that the aggrieved foreign parties can always, through its own countries, resort to the Dispute Settlement Mechanism in the WTO for legal redress, presents a great pressure for China and forces it to implement meaningful reform to establish an independent judicial review.5 In other words, the binding nature of this WTO obligation and the potential sanction for non-compliance compel China to take more seriously its legal obligation of the independent judicial review and to effectively enforce it. Suc hc on c e r n sc oul dbea l s oe v i d e nc e di nCh i na ’ sf i r s tt r a dep ol i c y review conducted in 2006. During the Trade Policy Review, the United States voiced its concerns with respect to the role of the Chinese Communist Pa r t yi nt hepr o c e e di ng sa ndde c i s i o nsoft heSup r e mePe opl e ’ sCou r ta s well as the lower courts. Chinese government replied with the following answer: “ [ A] c c or d i ngt ot heCon s t i t ut i on,t heOr g a ni cLa w oft hePe opl e ’ s Cour t soft hePe o pl e ’ sRe p ubl i cofCh i naa ndt heJ udg e sLa woft he Pe opl e ’ sRe pub l i cofCh i n a ,t h epe op l e ’ sc our t se xe r c i s ej udi c i a l power independently and are not subject to interference by any administration, public organization or individual. When exercising t hi s powe r ,t he p e o pl e ’ sc our t ss ha l ls t r i c t l ya b i de by t he Cons t i t u t i o n,t he Or g a ni c La wo ft he Pe op l e ’ s Cour t so ft he Pe opl e ’ sRe publ i co fChi n aa ndot h e rs ubs t a n t i a la n dpr oc e dur a l laws related to the specific c a s e s . ” 4. Jianming Cao, China and the Rule of Law, 16 TEMP. INT’ L & COMP. L.J. 379, 379 (2002). For updated review of the socialist rule of law with Chinese characteristics, see, Jiefin Lee, Socialist Rule of Law with Chinese Characteristics, 43 ISSUES & STUDIES 115 (2007). 5. Veron M. Hung, Ch i n a ’ sWTOCo mmi t me n to nI n d e p e n d e n tJ u d i c i a lRe v i e w:I mp a c to nLe g a l and Political Reform, 52 AM. J. COMP. L. 77, 120-25 (2004).


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However, this reply did not fully answer the question, since it was not made clear whether the Chinese Communist Party fell into the categories of administration, public organizations or individuals, and thus courts should not be subject to its interference. In addition, what Chinese government failed to point out were those articles requiring the courts to be responsible t ot h ePe op l e ’ sCong r e s sa ndt hos eg ov e r ni ngt her e l a t i on s hi pa mongc our t s , Chi ne s eCommuni s tPa r t ya ndPe op l e ’ sCong r e s s . Against this background, this paper aims to examine efforts so far made i nr e l a t i on t o Chi n a ’ s“ i nde pe nd e ntj ud i c i a lr e v i e w”obl i g a t i on,a n dt o ascertain the compatibility with the WTO requirements. However, it should be noted that this paper does not engage to carry out empirical studies. Pr og r e s si nr e l a t i ont o“ i n d e pe nde ntj u di c i a lr e v i e w”wi l lb epr e s e nt e dt ot he extent necessary to illustrate its weakness, and its incompatibility with s t a nd a r d sl a i ddownbyg l oba la ndr e g i ona li ns t r ume nt si nr e l a t i ont o“ a n i nde p e nde n ta ndi mpa r t i a lt r i bun a l . ”Be s i d e s ,t hi sp a pe rwi l lnott o uc hupo n whe t he r“ a ni nd e p e nde n ta ndi mpa r t i a lt r i bun a l ”i na c c or d a nc ewi t ht he WTO r e qu i r e me nt sme e t st hen e e dsofCh i na ’ sd e v e l opme nt s .Th i sp a pe r chooses to focus on the conformity of Chinese judicial system with its WTO obligation, as this obligation has already been made. Following this introductory Section, Section II will discuss firstly the role of domestic j udi c i a lr e v i e wi nt heWTO l a w,a ndt h e ne xa mi ne sChi n a ’ s“ i nde p e nde n t judi c i a lr e v i e w”obl i g a t i on .Ast h ee xi s t e n tWTO j u r i s p r ud e n c edoe sno t of f e rac l e a ra ns we rofwh a t“ a ni nd e pe nd e nc ej ud i c i a lr e v i e w”s hou l dbe , this paper, in Section III, further refers to global and regional standards of 6 “ j ud i c i a li n de pe nde n c e ” in order to clearly define the nature and scope of this obligation. Section IV will firstly review some major effort in relation to the fulfillment of this obligation, and then goes on to explore what i nt e r p r e t a t i v ea pp r o a c hs houl d be t a k e nf ort h i s“ i n de pe n de n tj udicial r e v i e w”obl i g a t i on,a ndwhe t he rt h ee x i s t i ngj u di c i a ls y s t e mc a npa s st h e scrutiny. A short concluding remark will be provided in the final Section.

6. Va r i o u sa p p r o a c h e sa r eo f f e r e dt oc l a r i f yt h ec o n c e p to f“ j u d i c i a li n d e p e n d e n c e . ”Fo ra n empirical study of this topic, see, e.g., BEYOND COMMON KNOWLEDGE: EMPIRICAL APPROACHES TO THE RULE OF LAW (Erik G. Jensen & Thomas C. Heller eds., 2003). For an interdisciplinary study, see, e.g., JUDICIAL INDEPENDENCE AT THE CROSSROADS: AN INTERDISCIPLINARY APPROACH (Stephen B. Burbank & Barry Friedman eds., 2002); INDEPENDENCE, ACCOUNTABILITY, AND THE JUDICIARY (Guy Canivet et al. eds., 2006). See also studies on judicial independence in the post-communist countries in JUDICIAL INTEGRITY (Andras Sajo ed., 2004).

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II. CHINA’ S OBLIGATION TO PROVIDE AN INDEPENDENT JUDICIAL REVIEW A. Domestic Judicial Review in the WTO Law Prior to the establishment of the WTO, it had already been proposed to strengthen domestic enforcements of the GATT rules. 7 During the negotiation process of the Uruguay Round, Switzerland submitted a communication, addressing domestic implementation, to the Negotiation Group on Dispute Settlement. 8 While it presented three models of introducing international trade laws into domestic legal order, namely, to give full effects of the international trade law in the domestic legal order, to selectively have qualified self-executing provisions directly implemented, and to leave it to the member states to decide the way in which international trade laws are enforced. In light of the infeasibility of an over-reaching ambition, the third approached was preferable. However, Switzerland proposed that the following elements concerning domestic procedures should be included: “ - Provisions for fair hearing for all parties substantially affected by administrative or judicial action related to international trade. In case of urgent determination, the right to a hearing may be granted upon complaint only. - Obligation to provide, at least upon complaint, a reasoned decision without undue delay. - Prompt and effective provisional measures in case of pending irreversible damage. - Prompt and effective administrative or judicial review of administrative action related to international trade. The scope of judicial review may be limited to issues of law, excluding questions 9 of fact and discretionary exercise of authorit ywi t h i nt h el a w. ” This proposal intended to widen the scope of the subject matter which was entitled to the procedural protection. It extended the scope of the or i g i na lGATT 1947wor di ng“ a dmi ni s t r a t i v ea c t i o nr e l a t i ngt oc us t oms 7. See, e.g., ERNST-ULRICH PETERSMANN, Strengthening the Domestic Legal Framework of the GATT Multilateral Trade System: Possibilities and Problems of Making GATT Rules Effective in Domestic Legal System, in THE NEW GATT ROUND OF MULTILATERAL TRADE NEGOTIATIONS: LEGAL AND ECONOMIC PROBLEMS (Ernst-Ulrich Petersmann & Meinhard Hilf eds., 1991). 8. GATT Document, MTN.GNG/NG13/W/36 (Jan. 18, 1990), at 4. 9. Id.


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ma t t e r s ” wi t h mor ep r e cise and clearer terminology and in a more comprehensive manner. In this proposal, Switzerland argued that Article X:3(b) of the GATT 1947 could not be effective if non-tariff measures were not covered. Based on this reasoning, Switzerland proposed that Article X:3(b) should be expressly applied to all areas covered in the General Agreement on Tariffs and Trade, including non-tariff barriers.10 I ti ss ubmi t t e dt h a tSwi t z e r l a nd’ sp r opo s a l ,wi t ht hea i mt os t r e ng t he n i ng domestic implementation of international trade rules and to providing effective judicial protection of individuals, had been, to a large extent, adopted in the following negotiation process and had been included into the Uruguay Round Multilateral Trade Agreements.11 Such examples can be found in Article X:3(b) of the GATT 1994, Article 13 of the Anti-Dumping Agreement, Article 11 of the Agreement on Customs Valuation, Article 4 of the Agreement on Pre-shipment Inspection, Article 23 of the Agreement on Subsidies and Countervailing Measures, Article VI of the GATS, Article 41 to Article 50 and Article 59 of the TRIPS Agreement, and Article XX:2 of the Government Procurement Agreement.12 B. Chi na’ s Accession Protocol to the WTO The trend to strengthen the effectiveness of domestic judicial review is a l s oe v i de n c e dbyChi n a ’ sAc c e s s i onPr o t oc olt ot h eWTO,wh i c h ,i nAr t i c l e 2(D), explicitly prescribes the obligation to provide an independent judicial review. The legal text reads as follows: 1. China shall establish, or designate, and maintain tribunals, contact points and procedures for the prompt review of all administrative actions relating to the implementation of laws, regulations, judicial decisions and administrative rulings of general application referred to in Article X:1 of the GATT 1994, Article VI of the GATS and the relevant provisions of the TRIPS Agreement. Such tribunals shall be impartial and independent of the agency entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter. 2. Review procedures shall include the opportunity for appeal, without penalty, by individuals or enterprises affected by any administrative action subject to review. If the initial right of appeal is to an administrative body, there shall in all cases be the opportunity to choose to appeal the decision to a judicial body. Notice of the decision on appeal shall be given to the 10. Id. 11. PETERSMANN, supra note 7, at 244. 12. Id. at 194.

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appellant and the reasons for such decision shall be provided in writing. The appellant shall also be informed of any right to further appeal. Compared to existent provisions in the WTO Ag r e e me nt s ,Ch i n a ’ s “ i nde pe nd e ntj ud i c i a lr e v i e w”ob l i g a t i o nd e s e r v e sf ur t h e re x p l or a t i on i n s e v e r a la s p e c t s :t h es c opeo fs ub j e c tma t t e r s ;t h ede f i ni t i o nof“ g e ne r a l a pp l i c a t i on ” ;i ns t i t u t i on a lr e qui r e me nts; and independence and impartiality. But before proceeding to examining these elements, it is feasible to explore the objective and purpose of this obligation. Why is an independent judicial r e v i e w de s i r a b l ef or WTO me mbe r s whe n ne g ot i a t i ng f or Chi n a ’ s accession?13 The Working Party Report does not provide a clue as it, in Se c t i onI I I . 4( t i l t e d“ J ud i c i a lRe v i e w” ) ,me r e l yr e i t e r a t e st ha ts omeme mbe r s of the Working Party wished independent tribunals to be established.14 The necessity and justification for such independent tribunals is not fully explained. It is nevertheless clear that members of the Working Party were attached to importance of independent tribunals, and were of the view that independent tribunals contribute to the smooth settlement of trade disputes and the protection of rights and interests of individual economic actors. Wi t hr e g a r dt o Ch i na ’ s“ i nde p e nde n tj ud i c i a lr e v i e w”obl i g a t i o n,a de l i c a t ebu ti mpor t a n td i f f e r e n c ei st ha tChi n ai sob l i g e dt o“ e s t a bl i s h ,o r designate, and maintain tribunals, contact points and pr o c e du r e s , ”wh i l e GATT X: 3 ( b)di c t a t e sme mbe r st o“ ma i n t a i n,o ri ns t i t ut ea ss oo na s practicable, judicial, arbitral or administrative tribunals or p r oc e d ur e s . ”By comparing these two provisions, it is thus made clear that all these three elements, i.e., tribunals, contacts points, and procedures, should be covered i nChi n a ’ si mpl e me nt a t i onme a s ur e sf o rt h i sob l i g a t i on.Al t ho ug ht r i b un a l s are usually connected with procedures, however, as GATT X:3(b) refers to t r i buna l s“ or ”p r oc e dures, it appears that mere procedures, which are able to provide a review mechanism comparable to prescribed standards, should also be accepted as meeting this requirement. By contrast, a tribunal, which i sa“ body ”e s t a bl i s h e dt os e t t l ec e r t a i nt y pe so fd ispute, is indispensable to 15 Chi na ’ si mpl e me nt a t i o nme a s ur e s . Besides, in Article X:3(c) of the GATT, 13. It is interesting to note that, for those new member states of the European Union, the judicial i n d e p e n d e n c ewa sa mo n gt h eh i g h l i g h t so ft h e i ra c c e s s i o np r o c e s s . Ho we v e r , Ch i n a ’ sWTOo b l i g a t i o n a n dt h o s en e w me mb e rs t a t e s ’j u d i c i a li n d e p e n d e n c er e q u i r e me n t sa p p a r e n t l yd e r i v ef r o md i f f e r e n c e logic, as the objective of the European Union and the WTO much differ. However, the scope of independent judicial review is much more wider; civil and political rights are of equal, if not more, importance in the accession process of the European Union, see e.g., Open Society Institute, MONITORING THE EU ACCESSION PROCESS: JUDICIAL INDEPENDENCE (Central European University Press 2001). 14. Report of Working Party on the Accession of China (hereinafter Report on the Accession of China), WT/ACC/CHN/49 (Oct. 1, 2001), paras. 76-77. 15. With regard to the definition of “ tribunals,”the European Court of Justice has laid down a


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it is nevertheless prescribed that existent procedures in force on the date of GATT do not have to be substituted or eliminated, if these procedures provide objective and impartial review of administrative action provided, e v e nt ho ug ht he ya r eno t“ f ul l yorf o r ma l l yi nde p e nde nto ft hea g e nc i e s e nt r us t e dwi t ha dmi ni s t r a t i v ee nf or c e me nt . ”The r e f or e ,i fame mbe rbe l i e v e s that procedures in force on the date of the GATT are objective and impartial, it is not required to substitute or eliminate these existing procedures. As the s e c onds e n t e n c eo ft h eSe c t i on2 ( D) ( 1 )o fCh i n a ’ sAc c e s s i onPr ot o c olc l e a r l y s t i p ul a t e s ,t r i b una l si nChi n as hou l dbe“ i nd e pe nd e nto ft heagency entrusted wi t ha dmi ni s t r a t i v ee n f or c e me nt . ”Be s i de s ,me mb e r sa r enotr e q ui r e dt o institute a new review mechanism which would be inconsistent with their constitutional structure or the nature of their legal systems (Article VI:2(b) of the GATS). Nevertheless, such leeway is not available for China.16 variety of case laws to examine who is eligible and obliged to refer to it for preliminary ruling under Article 234 of EC Treaty (Article 177 of EEC Treaty). See, e.g., Vassen v. Beambtenfonds Voor Het Mijnbedris, Case C-61/65 [1966] E.C.R.261, Dorsch Consult Ingenieurgesellschaft mbH v. Bundesbaugesellschaft Berlin mbH, Case C-54/96 [1997] E.C.R. I-04961. The author owes this point to Professor Petersmann. 16 . Julia Yin Qin, “WTO-p l u s ” Ob l i g a t i o n sa n d Th e i rI mp l i c a t i o n sf o rt h eWo r l dT r a d e Organization Legal System, 37 J.W.T. 483, 495-496 (2003). While it is true that judicial review to administrative measures in relation to trade matters could be regarded as a commonly-required obligation as previously established in the existent WTO Agreements. This paper argues that the obligation to provide an independent and impartial judicial review as embodied in China’ s Accession Protocol is wider in scope and more stringent in its formulation. This obligation thus constitutes as a “ WTO-plus”obligation. Although Members’doubts about the independence and impartiality of China’ s courts are unquestionably justifiable, the arrangement to provide detailed obligations in one single country’ s accession protocol, normally a standardized document without dealing with substantial obligations, is unprecedented, and so far, the only case. By comparing to the accession protocol of Viet Nam, one can easily draw a sharp contrast. While Members might also have doubts about the independence and impartiality of Viet Nam’ s courts, given that Viet Nam is still a communist country. A similar arrangement does not exist. While in the Working Party Report on the Accession of Viet Nam to the WTO does refer to obligation relating to judicial review to trade measures, such as custom valuation, rule of origin and trade-related intellectual property rights, in particular compulsory licensing and the termination and invalidation of invention patents, the Accession Protocol does not include this obligation. See Report of the Working Party on the Accession of Viet Nam (hereinafter Viet Nam’ s Working Party Report), WT/ ACC/VNM/48 (Oct. 27, 2006), paras. 235, 243, 409, 430 and 433. In addition, the Protocol of the Accession of the Socialist Republic of Viet Nam to the World Trade Organization is actually a standardized document, just as other accession protocols do. WT/L/662 (Nov. 15, 2006). Further, according to paragraph 153 of Viet Nam’ s Working Party Report, Viet Nam is obliged to “ r e v i s ei t sr e l e v a n tl a wsa n dr e g u l a t i o n ss ot h a ti t sr e l e v a n td o me s t i cl a wsa n d regulations would be consistent with the requirements of the WTO Agreement on procedures for judicial review of administrative actions, including but not limited to Article X:3(b) of the GATT 1994 … [S]uch reviews would be impartial and independent of the agency entrusted with a d mi n i s t r a t i v ee n f o r c e me n t , a n dwo u l dn o th a v ea n ys u b s t a n t i a li n t e r e s ti nt h eo u t c o meo ft h ema t t e r . ” Viet Nam is only obliged to revise its laws and regulations so as to be consistent with the existent requirements covered in the WTO Agreement. The requirement of being “ impartial and independent from the agency entrust administrative enforcement is also the existent requirement as embodied in Article X:3(b) of the GATT 1994. The only variance from the existent requirements of the WTO Agreement is the requirement of having no substantial interest in the outcome of the matter, which in

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As provided in the legal text, these tribunals should have the jurisdiction on “ a dmi ni s t r a t i v ea c t i o ns r e l a t i ng t ot h ei mpl e me nt a t i on o fl a ws , regulations, judicial decisions and administrative rulings of general application referred to in Article X:1 of the GATT 1994, Article VI of the GATS a ndt her e l e v a ntp r ov i s i o nso ft heTRI PS Ag r e e me n t . ”Tos ome extent, the scope of the application is clearly defined. Nevertheless, what these relevant provisions of the TRIPS Agreement are exactly referred to may be subject to dispute. It may be well interpreted as reference to Article 41 to 40 and 59 of TRIPS Agreement. Yet, it is rather unclear. In addition, as clearly provided in the Working Party Report, the scope of administrative actions in terms of Section 2(D) of the Accession Protocol should also cover t hos er e l a t e dt o“ t h ei mpl e me nt a t i on o fna t i ona lt r e a t me nt ,c on f or mi t y assessment, the regulation, control, supply or promotion of a service, including the grant or denial of a licence to provide a service and other 17 ma t t e r s . ” Consequently, such administrative actions should be subject to the prompt review of independent tribunals. The subject matters which Section 2(D) covers are apparently wider that those in relevant provisions of the WTO Agreements. Apa r tf r o mt hes u b j e c tma t t e r s ,t het e r m“ ofg e ne r a la ppl i c a t i on ”i sa l s o of great importance. In United States –Restrictions on Imports of Cotton and Man-ma deFi br eUnde r we ar( “US–Unde r we a r ”) , the Panel holds: “ I f ,f ori ns t a nc e ,t h er e s t r a i ntwa sa ddr e s s e dt oaspecific company or applied to a specific shipment, it would not have qualified as a measure of general application. However, to the extent that the restraint affects an unidentified number of economic operators, including domestic and foreign 18 pr oduc e r s ,wef i ndi tt obeame a s u r eo fg e ne r a la ppl i c a t i on. ” This view is 19 upheld by the Appellate Body. According to this interpretation, whether laws, regulations, judicial decisions and administrative rulings a r e“ of g e ne r a la pp l i c a t i on ”de pe n dsonwhe t he rt he ya f f e c tuni de n t i f i e dnumb e ro f economic operators. Those addressed to individual persons or entities should not be regarded as of general application. fact follows the practice of China’ s Accession Protocol. Given the wider scope and more stringent r e q u i r e me n tp r o v i d e di nCh i n a ’ s Accession Protocol, the paper thus argues the obligation to provide an independent and impartial judicial review as included in China’ s Accession Protocol constitutes a “ WTO-plus”obligation. 17. Report of Working Party on the Accession of China (hereinafter Report on the Accession of China), WT/ACC/CHN/49 (Oct. 1, 2001), para. 79. 18. Panel Report, United States –Restrictions on Imports of Cotton and Man-made Fibre Underwear (hereinafter United States’ Panel Report –Restrictions on Imports), WT/DS24/R, adopted Feb. 25, 1997, modified by Appellate Body Report, WT/DS24/AB/R, para. 7.65 (emphasis added). 19. Appellate Body Report, United States –Restrictions on Imports of Cotton and Man-made Fibre Underwear, WT/DS24/AB/R, adopted Feb. 25, 1997, at 21.


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The Accession Protocol also lays down several institutional r e qu i r e me nt sg ov e r ni ng t h e de s i g na t i on of t hi s“ i nde pe nd e ntj ud i c i a l 20 r e v i e w. ”Fo re xa mpl e ,t her i g htt oa pp e a ls ha l lbewi t hou tpe na l t y ; the decision of the appeal should be given to the appellant with reasons provided in writing;21 the right for further appeals should also be informed;22 and the tribunal shall have no substantial interests of the outcome of the decision.23 Be s i de s ,a n“ oppo r t uni t yf ora pp e a l ”r e v i e we dby“ j ud i c i a lbody ”i ft h e initial review is heard by an administrative body. This requirement of review by“ j u di c i a l ”b odydoe sno te xi s ti nt heWTOAgreements. As is pointed out, Chi na ’ sAc c e s s i onPr o t oc olha spu tf or wa r dmor es t r i ng e ntr e q ui r e me nt s wi t hr e g a r dt o dome s t i cj udi c i a lr e v i e w,a nd c ons t i t u t e sa“ WTO-pl us ” obligation.24 The r e qui r e me nto f“ wi t ho utpe n a l t y ”doe sa l s ono te xi s ti nAr t i c l eX: 1 of the GATT 1994, Article VI of the GATS and the relevant provisions of the TRIPS Agreement. It is nevertheless referred to in Custom Valuation Agreement. As the Interpretive Note in Custom Valuation Agreement i nf o r ms ,“ wi t hou tpe na l t y ”me a nst ha ta ppe l l a nts ho u l dnotbes ub j e c tt oa fine or threat of fine merely because the importer chooses to exercise the r i g htofa ppe a l .Adi c t i ona r yde f i ni t i o nof“ p e na l t y ”i sapuni s hme nti mpos e d for br e a c hofl a w,r u l eorc ont r a c t ,wh i l ea“ f i ne ”me a nsac e r t a i ns um of mone yi mpos e da st hep e n a l t yf ora nof f e ns e .“ Pu ni s hme nt ”a nd“ of f e n s e ” are telling here. Therefore, fees in order to cover the administrative costs should not be regarded as a fine, and thus do not fall into the scope of this penalty. This reading is supported by the Interpretive Note, which provides t ha tpa y me ntofno r ma lc o ur tc os t sa n dl a wy e r s ’f e e ss ha l lno tbec ons i de r e d t obeaf i ne .Howe v e r ,t he s ec ou r tc os t sa n dl a wy e r s ’f e e ss hould be limited to the amount necessary to cover the administrative expenses. In terms of the objective and purpose of this provision, these costs and fees should not have the effects of preventing or prohibiting appellants from referring to this prompt review. Besides, the requirement of reasoned decisions given in writing forces review bodies to justify their decisions being rationally taken. This also provides a good safeguard to prevent the abuse of discretionary power. Instruction for further appeal helps the appellants to take better advantage of these review mechanisms in China as most foreign individuals 20. Ch i n a ’ sAc c e s s i o nPr o t o c o l , Article 2(D)(2). 21. Id. 22. Id. 23. Ch i n a ’ sAc c e s s i o nPr o t o c o l , Ar t i c l e2 ( D) ( 1 ) . 24. For the WTO-p l u so b l i g a t i o n si nr e l a t i o nt oCh i n a ’ sa c c e s sion to the WTO, see, e.g., Qin, supra note 16.

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and enterprises find them incoherent and confusing. Above all, the most important element in the designation of Chinese judicial review relates to its impartiality and independence in terms of s e c ond s e nt e nc eofSe c t i on 2( D) ( 1 )o fCh i na ’ sAc c e s s i on Pr ot o c ol .As pr e s c r i be d ,t h et r i buna l ss h oul dbe“ i mpa r t i a l , ”“ i nd e pe nde n to ft hea g e nc y e nt r us t e d wi t ha dmi ni s t r a t i v ee nf or c e me nt , ”a nd s houl d no t“ h a v ea ny s ubs t a n t i a li n t e r e s ti nt heo u t c omeo ft hema t t e r . ”Th e s et h r e ec r i t e r i o nsa r e a c t u a l l yi nt e r l i nk e d.Wi t hr e g a r dt ot he “ i n de pe n de nc e , ”t r i buna l sa r e r e qu i r e dt obef or ma l l ya nds t r u c t u r a l l y“ i nde pe nd e nto ft hea g e nc ye nt r us t e d with administrative enforce me nt . ”Th eo r di na r y me a ni ng o f“ i mpa r t i a l ” means treating all rivals and disputants equally. That is, these tribunals or procedures should not privilege any parties to these disputes. Equal opportunities to be heard and to defend are thus important in this sense. The “ pr i nc i pl eofe qu a l i t yofa r ms ”i sa l s or e l e v a nti nt e r msofi nf or ma t i ona n d evidence to be made available to these complainants. As the object and purpose of these tribunals are to strengthen domestic judicial review, access to information and evidence is essential for appellants to effectively defend their rights and interests through these review mechanisms. The criterion of i mpa r t i a l i t yi sa l s oc l os e l yr e l a t e dt ot her e qui r e me ntof“ nos ub s t a nt i a l i nt e r e s ti nt heout c omeoft hema t t e r . ”Ha v ing no substantial interests in the outcome of the matter, tribunals are prevented from being biased due to the influences of personal feelings or opinions in considering facts and/or making decisions. Objective decision-making may be better achieved. In this line, no substantial interests involved contribute to the impartiality of these t r i buna l s .Thi sr e qu i r e me nto f“ n os u bs t a nt i a li nt e r e s t si nv ol v e d” a l s o i nf o r mst her e qu i r e me ntofbe i ng“ i nde p e nde n to ft h ea g e nc ye nt r u s t e dwi t h administrative enforcement . ”Tr i buna l sd e pe nd e ntu p ona g e nc i e se n t r u s t e d with administrative enforcement may be subject to influences of these agencies and have conflicting interests involved, which eventually undermines the impartiality of these tribunals. With regard to the WTO jurisprudence, the panel addresses the term “ i mp a r t i a l ”i nArgentina –Measures Affecting the Export of Bovine Hides and Import of Finished Leather.Al t ho ug hi ti sr e l a t e dt o“ i mpa r t i a l administration of laws, regulations, judicial decisions and administrative r ul i ng s of g e ne r a la pp l i c a t i o n, ” how t he pa n e ls e e si mpa r t i a l i t yc a n nevertheless shed some light here. As this dispute is related to the presence of“ pa r t i a la ndi nt e r e s t e dr e pr e s e nt a t i v e sofc e r t a i ni nd us t r i a la s s oc i a t i on s ”i n the process of customs administration, it can arguably be transformed into onea dd r e s s i n gr e v i e wpr oc e d ur e si nl i g hto f“ pr i n c i p l eofe qu a l i t yofa r ms ” a nd“ ex parte contact. ”ThePa ne le mpha s i z e s“ t hep r e s e n c eofpr i v a t e


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25 parties with conflicting commercial interests in the Cus t omspr o c e s s , ” and whe t he ra nyi nt e r e s t e dpa r t yt a k e sa dv a nt a g ei nt hi spr oc e s st o“ ob t a i n 26 c on f i de n t i a li n f or ma t i ont owhi c ht he yha v enor i g ht . ” Howe v e r ,t hea bov es ome how“ t e x t ua l ”a na l y s i ss e e msnott op r ov i dea clear picture and satisfactory answer ofwh a tt he“ i n de pe nd e ntj ud i c i a l r e v i e w”pr e s c r i b e di n Ch i na ’ sAc c e s s i on Pr o t oc o ls houl d be .Ar et h e s e t r i buna l sob l i g e dt ob ei n de pe nd e nton l y“ oft h ea g e nc ye nt r us t e dwi t h a dmi ni s t r a t i v ee nf or c e me nt , ”a ndno tofot h e ror g a ns ?Suc hi n t e r pr e t a t i oni s apparently unconvincing and against the objective and purpose of this obligation: to strengthen domestic judicial protection of the rights and interests of individual economic actors. It is thus essential to refer to other legal systems so as to correctly interpret the nature and scope of this obligation. This approach is also justifiable as the Appellate Body, in the very first case of United States – Standards for Reformulated and Conv e nt i on alGa s ol i n e( “US–Gas o l i n e ”) , clearly holds that the WTO Agreements a r e“ no tt ober e a di nc l i ni c a li s o l a t i onf r o m pu bl i ci nt e r na t i ona l 27 l a w. ” In US –Gasoline, the Appellate Body refers to Article 31 of the Vienna Conv e nt i o n on t h e La w ofTr e a t i e s( t he VCLT)f or“ g e ne r a lr u l eo f i nt e r p r e t a t i on. ” Ac c o r di ng t ot h e Appe l l a t e Body, this general rule of interpretation has attained the status of a rule of customary or general international law.28 The Appellate Body further notes that, the general rule of interpretation with its status of a rule of customary or general international

25. Panel Report, Argentina –Measures Affecting the Export of Bovine Hides and Import of Finished Leather (Argentina –Hides and Leather), WT/DS155/R and Corr.1, adopted Feb. 16, 2001, para. 11.99. 26. Id. para. 11.100. 27. Appellate Body report, United States –Standards for Reformulated and Conventional Gasoline ( “ U.S. –Gasoline” ) ,WT/ DS2 / AB/ R,a d o p t e dAp r . 29, 1996, at 17. Besides, as the preamble of Vienna Convention on the Law of Treaties explicitly prescribes that disputes concerning treaties s h o u l db es e t t l e dby“ p e a c e f u lme a n sa n di nc o n f o r mi t ywi t ht h ep r i n c i p l e so fj u s t i c ea n di n t e r n a t i o n a l l a w, ”a n dAr t i c l e3 1 ( 1 )o ft h eCo n v e n t i o np r o v i d e st h a t“ [ A]t r e a t ys h a l lb ei n t e r p r e t e di ng o o df a i t hi n accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the l i g h to fi t so b j e c ta n dp u r p o s e , ”aq u e s t i o nd e s e r v e sf u r t h e re x p l o r a t i o nh e r ei st h er e l e v a n c eo f international human rights obligation in relation to acces st oj u s t i c et ot h ei n t e r p r e t a t i o no fCh i n a ’ s WTO obligation to provide an independent and impartial judicial review. These international human rights obligations range from Article 8 of Universal Declaration of Human Rights to Article 9 of International Covenant on Civil and Political Rights, and Article 6 of The European Convention of Human Rights, to which China may (and may not) be a contracting party or not. The author owes this point to Professor Petersmann. 28. In footnote 34 of the report, the Appellate Body cites a number of judgments delivered by International Court of Justice, European Court of Human Right, and Inter-American Court of Human Rights to justify this argument. Besides, the Appellate Body also refers to relevant literature to support it interpretation. WT/DS2/AB/R, footnote 34.

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l a w,f or ms pa r tof t he “ c us t oma r yr ul e so fi n t e r p r e t a t i on o f publ i c i nt e r na t i ona ll a w”wh i c ht heAppe l l a t eBodyha sb e e ndi r e c t e d,byAr t i c l e 29 3(2) of the DSU to apply when clarifying provisions covered in the WTO Agreements. The Appellate Body then concludes that the direction dictated by Article 3.2 of the DSU recognize that the WTO Ag r e e me nt sa r e“ no tt ob e r e a di nc l i ni c a li s o l a t i o nf r o mpubl i ci n t e r na t i o na ll a w. ” Then one may wonder how the WTO Agreements should be to be read or how one should interpret the WTO Agreements. This comes back to the “ g e ne r a lr ul eo fi nt e r p r e t a t i on, ”wh i c ht h eAppe l l a t eBodyha sr e c og ni z e si t s s t a t usof“ ar u l eofc u s t o ma r yorg e ne r a li n t e r na t i ona ll a w, ”whi c ht h e Appellate Body should apply when clarifying existent provisions of the WTO Ag r e e me nt s .Ar t i c l e31( 1)o ft h eVCLTp r ov i de st ha t“ [ A]t r e a t ys ha l l be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. ”Thec r uc i a lpoi n the r ei st huswh a tc o n s t i t u t e st hec o nt e xto fa treaty. While general principles of public international law may be this c on t e xt ,t hi sa g a i n be g st he que s t i on a st o wha tc ons t i t u t e s“ g e ne r a l 30 pr i n c i p l e sofp ubl i ci n t e r n a t i ona ll a w. ” Nevertheless, if one takes the wording of the Appellate Body carefully, i tr e a dsa sf o l l ows :“ t ha tdi r e c t i onr e f l e c t same a s ur eofr e c og ni t i ont h a tt h e General Agreement is not to be read in clinical isolation from public i nt e r na t i ona ll a w. ”I nr e j e c t i ngt hereading in clinical isolation from public i nt e r na t i ona ll a w,t heApp e l l a t eBodypr e s up pos e sa“ c o r r e c t ”r e a d i ngoft h e General Agreement or other covered agreements, which is not “ i nc l i n i c a l i s o l a t i onf r om t hepubl i ci nt e r na t i o n a ll a w. ”Wh e ndi r e c t i ngt he interpreters not to read the General Agreement and other covered agreement in clinical isolation from public international law, the Appellate Body actually, albeit implicitly, instructs the interpreters to read the General Agreement and other

29. Article 3.2 of the DSU provides: [T]he dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements (emphasis added). 30. An illustrative example of this is the debate of “ precautionary principle”in European Communities –Measures Affecting the Approval and Marketing of Biotech Products (EC –Approval and Marketing of Biotech Products), Panel Report, EC –Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, Corr.1 and Add.1, 2, 3, 4, 5, 6, 7, 8 and 9, adopted Nov. 21, 2006. While the EC argues that precautionary principle as embodied in Cartagena Protocol on Biodiversity is a general principle of international law, the United States takes the opposite position. (paras. 4.523-524; 4.539-544). The Panel finds in favor of the United States, holding that the precautionary principle does not constitute a general principle of international law.


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covered agreements in light of public international law.31 This position finds its support from other relevant jurisprudence of the WTO Panel/Appellate Body. In United States –Import Prohibition of Ce r t a i nSh r i mpandS h r i mpPr odu c t s( “US–Shr i mps ”) ,32 the Appellate Body approaches this issue with a positive voice. It firstly recognizes the principle of good faith to be both a general principle of law and a general principle of international law, and then, by citing Article 31(3)(c) of the VLCT33 opines that its task ist o“ i st oi nt e r p r e tt hel a n g ua g eoft h ec ha pe a u [of Article XX of the GATT 1994], seeking additional interpretative 34 g ui da nc e ,a sa ppr opr i a t e ,f r om t heg e ne r a lpr i nc i pl e so fi nt e r n a t i ona ll a w. ” Further the Panel in EC –Approval and Marketing of Biotech Products is called upon to deal with the relevance of the Cartagena Protocol on Biodiversity to the WTO Agreements, in particular the Agreement on Sanitary and Phytosanitary Measures (the SPS agreement). The Panel again refers to Article 31(3)(c) of the VCLT. Panel takes a cautious approach in exploring the relevance of this protocol. The Panel concludes that, as one of the party of this dispute, namely, the United States, is not a party to the Ca r t a g e na Pr ot o c olon Bi odi v e r s i t y ,t hi s pr o t o c o li s nota “ r u l e of i nt e r na t i ona ll a wa ppl i c a bl ei nt h er e l a t i o nsbe t we e nt hepa r t i e s . ”Th ePa ne l is thus not required to take into account of this protocol. Nevertheless, the Pa ne la l s on ot e st ha t“ r e q u i r i ngt ha tat r e a t ybei nt e r pr e t e di nt h el i g hto f other rules of international law which bind the States parties to the treaty ensures or enhances the consistency of the rules of international law applicable to these States and thus contributes to avoiding conflicts between 35 t her e l e v a ntr ul e s . ” Lastly, one should also distinguish the difference between the 31. The author wishes to express his gratitude to the anonymous reviewer’ s comment on this insightful and philosophical interpretation issue. It also helps the author to closely bridge the second section and the third section. 32. Appellate Body Report, United States –Import Prohibition of Certain Shrimp and Shrimp Products (US - Shrimps), WT/DS58/AB/R, adopted Nov. 6, 1998, DSR 1998: VII, 2755. 33. Article 31(3)(c) of the VCLT provides that “ there shall be taken into account, together with the context: (c) an yr e l e v a n tr u l e so fi n t e r n a t i o n a ll a wa p p l i c a b l ei nt h er e l a t i o n sb e t we e nt h ep a r t i e s . ” 34. Id. para. 158. 35. Panel report, EC –Approval and Marketing of Biotech Products, para. 7.70. According this holding, while the author acknowledges its potential weakness in introducing the jurisprudence in the European Court of Human Right in interpreting China’ s WTO obligation to provide an independent and impartial judicial review, it also arguable that those core human rights, right to a fair trial in this present case, as enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention of Human Rights) and its five protocols attain the status of general principles of international law. Further, even in terms of the cautious approach taken by the Panel on EC –Approval and Marketing of Biotech Products, those universal declarations, and those regional standards and instruments in which China participates, should be of great relevance in interpreting its own obligation, even in the realm of the WTO law.

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interpretation of the obligation to provide an independent judicial review as i nc l ude di n Ch i na ’ s Ac c e s s i on Pr ot oc o la nd t he l e g a lba s i sf or t h e Panel/Appellate Body to adjudicate the case. While the author argues that this obligation to provide an independent and impartial judicial review should be read in light of public international law, China is under its WTO obligation to provide this independent and impartial judicial review. It is this WTO obligation which the leg a lba s i so ft hePa n e l / Appe l l a t eBody ’ sr ul i ng stems from and is limited to. The trend to strengthen the effectiveness of domestic judicial review is a l s oe v i de n c e dbyChi n a ’ sAc c e s s i onPr o t oc olt ot h eWTO,wh i c h ,i nAr t i c l e 2(D), explicitly prescribes the obligation to provide an independent judicial review. The legal text reads as follows: 1. China shall establish, or designate, and maintain tribunals, contact points and procedures for the prompt review of all administrative actions relating to the implementation of laws, regulations, judicial decisions and administrative rulings of general application referred to in Article X:1 of the GATT 1994, Article VI of the GATS and the relevant provisions of the TRIPS Agreement. Such tribunals shall be impartial and independent of the agency entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter. 2. Review procedures shall include the opportunity for appeal, without penalty, by individuals or enterprises affected by any administrative action subject to review. If the initial right of appeal is to an administrative body, there shall in all cases be the opportunity to choose to appeal the decision to a judicial body. Notice of the decision on appeal shall be given to the appellant and the reasons for such decision shall be provided in writing. The appellant shall also be informed of any right to further appeal. Compared to existent provisions in the WTO Ag r e e me nt s ,Ch i n a ’ s “ i nde pe nd e ntj ud i c i a lr e v i e w”ob l i g a t ion deserves further exploration in s e v e r a la s p e c t s :t h es c opeo fs ub j e c tma t t e r s ;t h ede f i ni t i o nof“ g e ne r a l a pp l i c a t i on ” ;i ns t i t u t i on a lr e qui r e me nt s ;a ndi n d e pe n d e n c ea ndi mpa r t i a l i t y . But before proceeding to examining these elements, it is feasible to explore the objective and purpose of this obligation. Why is an independent judicial r e v i e w de s i r a b l ef or WTO me mbe r s whe n ne g ot i a t i ng f or Chi n a ’ s 36 accession? The Working Party Report does not provide a clue as it, in Se c t i onI I I . 4( t i l t e d“ J ud i c i a lRe v i e w” ) ,me r e l yr e i t e r a t e st ha ts omeme mbe r s of the Working Party wished independent tribunals to be established.37 The 36. See Open Society Institute, supra note 13. 37. See Report on the Accession of China, supra note 14.


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necessity and justification for such independent tribunals is not fully explained. It is nevertheless clear that members of the Working Party were attached to importance of independent tribunals, and were of the view that independent tribunals contribute to the smooth settlement of trade disputes and the protection of rights and interests of individual economic actors. Wi t hr e g a r dt o Ch i na ’ s“ i nde p e nde n tj ud i c i a lr e v i e w”obl i g a t i o n,a de l i c a t ebu ti mpor t a n td i f f e r e n c ei st ha tChi n ai sob l i g e dt o“ e s t a bl i s h ,o r designate, and maintain tribunals, contact points and pr oc e dur e s , ”wh i l ethe GATT X: 3 ( b)di c t a t e sme mbe r st o“ ma i n t a i n,o ri ns t i t ut ea ss oon as practicable, judicial, arbitral or administrative tribunals or p r oc e d ur e s . ”By comparing these two provisions, it is thus made clear that all these three elements, i.e., tribunals, contacts points, and procedures, should be covered i nChi n a ’ si mpl e mentation measures for this obligation. Although tribunals are usually connected with procedures, however, as the GATT X:3(b) refers t ot r i buna l s“ o r ”p r oc e d ur e s ,i ta p pe a r st ha tme r ep r oc e dur e s ,wh i c ha r ea b l e to provide a review mechanism comparable to prescribed standards, should also be accepted as meeting this requirement. By contrast, a tribunal, which i sa“ body ”e s t a bl i s h e dt os e t t l ec e r t a i nt y pe so fd i s p ut e ,i si nd i s p e ns a bl et o 38 Chi na ’ si mpl e me nt a t i o nme a s ur e s . Besides, in Article X:3(c) of the GATT, it is nevertheless prescribed that existent procedures in force on the date of the GATT do not have to be substituted or eliminated, if these procedures provide objective and impartial review of administrative action provided, e v e nt ho ug ht he ya r eno t“ f ully or formally independent of the agencies e nt r us t e dwi t ha dmi ni s t r a t i v ee nf or c e me nt . ”The r e f or e ,i fame mbe rbe l i e v e s that procedures in force on the date of the GATT are objective and impartial, it is not required to substitute or eliminate these existing procedures. As the s e c onds e n t e n c eo ft h eSe c t i on2 ( D) ( 1 )o fCh i n a ’ sAc c e s s i onPr ot o c olc l e a r l y s t i p ul a t e s ,t r i b una l si nChi n as hou l dbe“ i nd e pe nd e nto ft hea g e nc ye nt r u s t e d wi t ha dmi ni s t r a t i v ee n f or c e me nt . ”Be s i de s ,me mb e r sa r enotr e q ui r e dt o institute a new review mechanism which would be inconsistent with their constitutional structure or the nature of their legal systems (Article VI:2(b) of the GATS). Nevertheless, such leeway is not available for China.39 As provided in the legal text, these tribunals should have the jurisdiction on “ a dmi ni s t r a t i v ea c t i o ns r e l a t i ng t ot h ei mpl e me nt a t i on o fl a ws , regulations, judicial decisions and administrative rulings of general application referred to in Article X:1 of the GATT 1994, Article VI of the 38. See Vassen v. Mijnbedris, supra note 15. 39. See Qin, supra note 16. See also Viet Nam’ s Working Party Report, supra note 16. See also the Protocol of the Accession of Socialist Republic of Viet Nam to the World Trade Organization, supra note 16.

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GATS and ther e l e v a ntp r ov i s i o nso ft heTRI PS Ag r e e me n t . ”Tos ome extent, the scope of the application is clearly defined. Nevertheless, what these relevant provisions of the TRIPS Agreement are exactly referred to may be subject to dispute. It may be well interpreted as reference to Article 41 to 40 and 59 of the TRIPS Agreement. Yet, it is rather unclear. In addition, as clearly provided in the Working Party Report, the scope of administrative actions in terms of Section 2(D) of the Accession Protocol should also cov e rt ho s er e l a t e dt o“ t hei mpl e me n t a t i o nofna t i o na lt r e a t me nt , conformity assessment, the regulation, control, supply or promotion of a service, including the grant or denial of a licence to provide a service and ot he rma t t e r s . ”40 Consequently, such administrative actions should be subject to the prompt review of independent tribunals. The subject matters which Section 2(D) covers are apparently wider that those in relevant provisions of the WTO Agreements. Apa r tf r o mt hes u b j e c tma t t e r s ,t het e r m“ ofg e ne r a la ppl i c a t i on ”i sa l s o of great importance. In United States –Restrictions on Imports of Cotton and Man-ma deFi br eUnde r we ar( “US–Unde r we a r ”) , the Panel holds: “ I f ,f ori n s t a nc e ,t her e s t r a i ntwa sa ddr e s s e dt oaspecific company or applied to a specific shipment, it would not have qualified as a measure of general application. However, to the extent that the restraint affects an unidentified number of economic operators, including domestic and foreign producers, we find it to be a 41 measure of general a p p l i c a t i o n. ” This view is upheld by the 42 Appellate Body. According to this interpretation, whether laws, r e g ul a t i on s ,j ud i c i a lde c i s i onsa nda dmi ni s t r a t i v er ul i ng sa r e“ o f g e ne r a la pp l i c a t i on ”d e pe n dsonwhe t he rt he ya f f e c tuni d e nt i f i e d number of economic operators. Those addressed to individual persons or entities should not be regarded as of general application. The Accession Protocol also lays down several institutional r e qu i r e me nt sg ov e r ni ng t h e de s i g na t i on of t hi s“ i nde pe nd e ntj ud i c i a l 43 r e v i e w. ”Fo rexample, the right to appeal shall be without penalty; the decision of the appeal should be given to the appellant with reasons provided in writing;44 the right for further appeals should also be informed;45 and the 40. 41. 42. 43. 44.

See Report on the Accession of China, supra note 14, at 79. See Un i t e dSt a t e s ’ Panel Report –Restrictions on Imports, supra note 18. See Appellate Body Report, supra note 19. See Ch i n a ’ sAc c e s s i o nPr o t o c o l , supra note 20. Id.


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tribunal shall have no substantial interests of the outcome of the decision.46 Be s i de s ,a n“ oppo r t uni t yf ora pp e a l ”r e v i e we dby“ j ud i c i a lbody ”i ft h e initial review is heard by an administrative body. This requirement of review by“ j u di c i a l ”b odydoe sno te xi s ti nt heWTOAgreements. As is pointed out, Chi na ’ sAc c e s s i onPr o t oc olha spu tf or wa r dmor es t r i ng e ntr e q ui r e me nt s wi t hr e g a r dt o dome s t i cj udi c i a lr e v i e w,a nd c ons t i t u t e sa“ WTO-pl us ” obligation.47 Ther e qui r e me nto f“ wi t ho utpe n a l t y ”doe sa l s ono te xi s ti nAr t i c l eX: 1 of the GATT 1994, Article VI of the GATS and the relevant provisions of the TRIPS Agreement. It is nevertheless referred to in Custom Valuation Agreement. As the Interpretive Note in Custom Valuation Agreement i nf o r ms ,“ wi t hou tpe na l t y ”me a nst ha ta ppe l l a nts ho u l dnotbes ub j e ct to a fine or threat of fine merely because the importer chooses to exercise the r i g htofa ppe a l .Adi c t i ona r yde f i ni t i o nof“ p e na l t y ”i sapuni s hme nti mpos e d f orbr e a c hofl a w,r u l eorc ont r a c t ,wh i l ea“ f i ne ”me a nsac e r t a i ns um of money imposed as the p e n a l t yf ora nof f e ns e .“ Pu ni s hme nt ”a nd“ of f e n s e ” are telling here. Therefore, fees in order to cover the administrative costs should not be regarded as a fine, and thus do not fall into the scope of this penalty. This reading is supported by the Interpretive Note, which provides t ha tpa y me ntofno r ma lc o ur tc os t sa n dl a wy e r s ’f e e ss ha l lno tbec ons i de r e d t obeaf i ne .Howe v e r ,t he s ec ou r tc os t sa n dl a wy e r s ’f e e ss hou l db el i mi t e d to the amount necessary to cover the administrative expenses. In terms of the objective and purpose of this provision, these costs and fees should not have the effects of preventing or prohibiting appellants from referring to this prompt review. Besides, the requirement of reasoned decisions given in writing forces review bodies to justify their decisions being rationally taken. This also provides a good safeguard to prevent the abuse of discretionary power. Instruction for further appeal helps the appellants to take better advantage of these review mechanisms in China as most foreign individuals and enterprises find them incoherent and confusing. Above all, the most important element in the designation of Chinese judicial review relates to its impartiality and independence in terms of s e c ond s e nt e nc eofSe c t i on 2( D) ( 1 )o fCh i na ’ sAccession Protocol. As pr e s c r i be d ,t h et r i buna l ss h oul dbe“ i mpa r t i a l , ”“ i nd e pe nde n to ft hea g e nc y e nt r us t e d wi t ha dmi ni s t r a t i v ee nf or c e me nt , ”a nd s houl d no t“ h a v ea ny s ubs t a n t i a li n t e r e s ti nt heo u t c omeo ft hema t t e r . ”Th e s et h r e ec r i t e r i o nsa r e

45. Id. 46. See Ch i n a ’ sAc c e s s i o nPr o t o c o l , supra note 23. 47. See Qin, supra note 16.

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actually i nt e r l i nk e d.Wi t hr e g a r dt ot he “ i n de pe n de nc e , ”t r i buna l sa r e r e qu i r e dt obef or ma l l ya nds t r u c t u r a l l y“ i nde pe nd e nto ft hea g e nc ye nt r us t e d wi t ha dmi ni s t r a t i v ee nf or c e me nt . ”Th eo r di na r y me a ni ng o f“ i mpa r t i a l ” means treating all rivals and disputants equally. That is, these tribunals or procedures should not privilege any parties to these disputes. Equal opportunities to be heard and to defend are thus important in this sense. The “ pr i nc i pl eofe qu a l i t yofa r ms ”i sa l s or e l e v a nti nt e r msofi nf or ma t i ona n d evidence to be made available to these complainants. As the object and purpose of these tribunals are to strengthen domestic judicial review, access to information and evidence is essential for appellants to effectively defend their rights and interests through these review mechanisms. The criterion of i mpa r t i a l i t yi sa l s oc l os e l yr e l a t e dt ot her e qui r e me ntof“ nos ub s t a nt i a l i nt e r e s ti nt heout c omeoft hema t t e r . ”Ha v i ngnos ubs t a n t i a li n t e r e s t si nt h e outcome of the matter, tribunals are prevented from being biased due to the influences of personal feelings or opinions in considering facts and/or making decisions. Objective decision-making may be better achieved. In this line, no substantial interests involved contribute to the impartiality of these tribuna l s .Thi sr e qu i r e me nto f“ n os u bs t a nt i a li nt e r e s t si nv ol v e d” a l s o i nf o r mst her e qu i r e me ntofbe i ng“ i nde p e nde n to ft h ea g e nc ye nt r u s t e dwi t h a dmi ni s t r a t i v ee nf or c e me nt . ”Tr i buna l sd e pe nd e ntu p ona g e nc i e se n t r u s t e d with administrative enforcement may be subject to influences of these agencies and have conflicting interests involved, which eventually undermines the impartiality of these tribunals. With regard to the WTO jurisprudence, the panel addresses the term “ i mp a r t i a l ”i nArgentina –Measures Affecting the Export of Bovine Hides and Import of Finished Leather.Al t ho ug hi ti sr e l a t e dt o“ i mpa r t i a l administration of laws, regulations, judicial decisions and administrative r ul i ng s of g e ne r a la pp l i c a t i o n, ” how t he pa n e ls e e si mpa r t i a l i t yc a n nevertheless shed some light here. As this dispute is related to the presence of“ pa r t i a la ndi nt e r e s t e dr e pr e s e nt a t i v e sofc e r t a i ni nd us t r i a la s s oc i a t i on s ”i n the process of customs administration, it can arguably be transformed into one addressing review procedures in l i g hto f“ pr i n c i p l eofe qu a l i t yofa r ms ” a nd “ ex parte c on t a c t . ”ThePa n e le mpha s i z e s“ t hep r e s e nc eofp r i v a t e 48 pa r t i e swi t hc on f l i c t i ngc o mme r c i a li n t e r e s t si nt heCus t omspr o c e s s , ” and whe t he ra nyi nt e r e s t e dpa r t yt a k e sa dv a nt a g ei nt hi spr oc e s st o“ ob t a in 49 c on f i de n t i a li n f or ma t i ont owhi c ht he yha v enor i g ht . ” Howe v e r ,t hea bov es ome how“ t e x t ua l ”a na l y s i ss e e msnott op r ov i dea 48. See Argentina –Hides and Leather, supra note 25. 49. Id. para. 11.100.


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c l e a rp i c t ur ea nd s a t i s f a c t or ya ns we rofwh a tt he“ i n de pe nd e ntj ud i c i a l r e v i e w”pr e s c r i b e di n Ch i na ’ sAc c e s s i on Pr o t oc o ls houl d be. Are these t r i buna l sob l i g e dt ob ei n de pe nd e nton l y“ oft h ea g e nc ye nt r us t e dwi t h a dmi ni s t r a t i v ee nf or c e me nt , ”a ndno tofot h e ror g a ns ?Suc hi n t e r pr e t a t i oni s apparently unconvincing and against the objective and purpose of this obligation: to strengthen domestic judicial protection of the rights and interests of individual economic actors. It is thus essential to refer to other legal systems so as to correctly interpret the nature and scope of this obligation. This approach is also justifiable as the Appellate Body, in the very first case of United States – Standards for Reformulated and Conv e nt i on alGa s ol i n e( “US–Gas o l i n e ”) , clearly holds that the WTO Ag r e e me nt sa r e“ no tt ober e a di nc l i ni c a li s o l a t i onf r o m pu bl i ci nt e r na t i ona l 50 l a w. ” In US –Gasoline, the Appellate Body refers to Article 31 of the Vienna Conv e nt i o n on t h e La w ofTr e a t i e s( t he VCLT)f or“ g e ne r a lr u l eo f i nt e r p r e t a t i on. ” Ac c o r di ng t ot h e Appe l l a t e Body ,t hi sg e ne r a lr u l eo f interpretation has attained the status of a rule of customary or general international law.51 The Appellate Body further notes that, the general rule of interpretation with its status of a rule of customary or general international l a w,f or ms pa r tof t he “ c us t oma r yr ul e so fi n t e r p r e t a t i on o f publ i c i nt e r na t i ona ll a w”which the Appellate Body has been directed, by Article 3(2) of the DSU 52 to apply when clarifying provisions covered in the WTO Agreements. The Appellate Body then concludes that the direction dictated by Article 3.2 of the DSU recognize that the WTO Agreeme nt sa r e“ no tt ob e r e a di nc l i ni c a li s o l a t i o nf r o mpubl i ci n t e r na t i o na ll a w. ” Then one may wonder how the WTO Agreements should be to be read or how one should interpret the WTO Agreements. This comes back to the “ g e ne r a lr ul eo fi nt e r p r e t a t i on, ”wh i c hthe Appellate Body has recognizes its s t a t usof“ ar u l eofc u s t o ma r yorg e ne r a li n t e r na t i ona ll a w, ”whi c ht h e Appellate Body should apply when clarifying existent provisions of the WTO Ag r e e me nt s .Ar t i c l e31( 1)o ft h eVCLTp r ov i de st ha t“ [ A]t r e a t ys ha l l 50. See U.S. –Gasoline, supra note 27. 51. In footnote 34 of the report, the Appellate Body cites a number of judgments delivered by International Court of Justice, European Court of Human Right, and Inter-American Court of Human Rights to justify this argument. Besides, the Appellate Body also refers to relevant literature to support it interpretation. WT/DS2/AB/R, footnote 34. 52. Article 3.2 of the DSU provides: [T]he dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements (emphasis added).

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be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object a ndpur p os e . ”Thec r uc i a lpoi n the r ei st huswh a tc o n s t i t u t e st hec o nt e xto fa treaty. While general principles of public international law may be this c on t e xt ,t hi sa g a i n be g st he que s t i on a st o wha tc ons t i t u t e s“ g e ne r a l 53 pr i n c i p l e sofp ubl i ci n t e r n a t i ona ll a w. ” Nevertheless, if one takes the wording of the Appellate Body carefully, it reads as follows: “ t ha tdi r e c t i onr e f l e c t same a s ur eofr e c og ni t i ont h a tt h e General Agreement is not to be read in clinical isolation from public i nt e r na t i ona ll a w. ”I nr e j e c t i ngt her e a d i ngi nc l i ni c a li s ol a t i onf r om publ i c international law, the Appellate Body presuppose sa“ c o r r e c t ”r e a d i ngoft h e General Agreement or other covered agreements, which is not “ i nc l i n i c a l i s o l a t i onf r om t hepubl i ci nt e r na t i o n a ll a w. ”Wh e ndi r e c t i ngt hei nt e r p r e t e r s not to read the General Agreement and other covered agreement in clinical isolation from public international law, the Appellate Body actually, albeit implicitly, instructs the interpreters to read the General Agreement and other covered agreements in light of public international law.54 This position finds its support from other relevant jurisprudence of the WTO Panel/Appellate Body. In United States –Import Prohibition of Ce r t a i nSh r i mpandS h r i mpPr odu c t s( “US–Shr i mps ”) ,55 the Appellate Body approaches this issue with a positive voice. It firstly recognizes the principle of good faith to be both a general principle of law and a general principle of international law, and then, by citing Article 31(3)(c) of the VLCT56 opi ne st ha ti t st a s ki st o“ i st oi nt e r p r e tt hel a n g ua g eoft h ec ha pe a u [of Article XX of the GATT 1994], seeking additional interpretative 57 g ui da nc e ,a sa ppr opr i a t e ,f r om t heg e ne r a lpr i nc i pl e so fi nt e r n a t i ona ll a w. ” Further the Panel in EC –Approval and Marketing of Biotech Products is called upon to deal with the relevance of the Cartagena Protocol on Biodiversity to the WTO Agreements, in particular the Agreement on Sanitary and Phytosanitary Measures (the SPS Agreement). The Panel again refers to Article 31(3)(c) of the VCLT. Panel takes a cautious approach in exploring the relevance of this protocol. The Panel concludes that, as one of the party of this dispute, namely, the United States, is not a party to the 53. See EC –Approval and Marketing of Biotech Products, supra note 30. 54. The author wishes to express his gratitude to the anonymous reviewer’ s comment on this insightful and philosophical interpretation issue. It also helps the author to closely bridge the second section and the third section. 55. See US –Shrimps, supra note 32. 56. Article 31(3)(c) of the VCLT provides that “ there shall be taken into account, together with the context: (c) any relevant rules of international law applicable in the relation sb e t we e nt h ep a r t i e s . ” 57. Id. para. 158.


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Ca r t a g e na Pr ot o c olon Bi odi v e r s i t y ,t hi s pr o t o c o li s nota “ r u l e of i nt e r na t i ona ll a wa ppl i c a bl ei nt h er e l a t i o nsbe t we e nt hepa r t i e s . ”Th ePa ne l is thus not required to take into account of this protocol. Nevertheless, the Pa ne la l s on ot e st ha t“ r e q u i r i ngt ha tat r e a t ybei nt e r pr e t e di nt h el i g hto f other rules of international law which bind the States parties to the treaty ensures or enhances the consistency of the rules of international law applicable to these States and thus contributes to avoiding conflicts between 58 t her e l e v a ntr ul e s . ” Lastly, one should also distinguish the difference between the interpretation of the obligation to provide an independent judicial review as i nc l ude di n Ch i na ’ s Ac c e s s i on Pr ot oc o la nd t he l e g a lba s i sf or t h e Panel/Appellate Body to adjudicate the case. While the author argues that this obligation to provide an independent and impartial judicial review should be read in light of public international law, China is under its WTO obligation to provide this independent and impartial judicial review. It is this WTO obl i g a t i onwh i c ht hel e g a lba s i so ft hePa n e l / Appe l l a t eBody ’ sr ul i ng stems from and is limited to. C. The Possibility of A Complaint in the WTO and Approach for the Interpretation of WTO-plus Obligation Before proceeding to the discussion of the standard of review to be employed in the WTO Panel/Appellate Body, it should be clarified the possibility of a complaint in the WTO with regard to this obligation, and the potential approach taken by the WTO Panel/Appellate Body on this WTO-plus obligation. It evidences the necessity and feasibility of the examination of this obligation. As noted above, Article X:3(a) of the GATT 1994 has been referred to in some complaints. The Panel and Appellate Body have also laid down some c r i t e r i af ort he“ i mpa r t i a l i t y ”a nd“ o b j e c t i v i t y ”o ft hea dmi ni s t r a t i onofl a ws , regulations and judicial decisions and administrative rulings of general application. Since the complaint with regard to the impartiality and objectivity of the administration has been brought about in the WTO, and has been subject to the review of the Panel/Appellate Body, it is reasonable to expect that a complaint in relation to the impartiality and independence of courts is likely to come. Besides, in the WTO jurisprudence, there are also complaints in relation

58. See Panel report, EC –Approval and Marketing of Biotech Products, supra note 35.

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to particular judgments of domestic courts. 59 Although complaints with regard to substantive obligations should be dealt with independently from t hec l a i m ba s e dupo nt h ev i ol a t i ono f“ i nde p e nde n c e ”a nd“ i mpa r t i a l i t y ”o f judicial review,60 it is highly possible that the claim based upon the violation of the general obligation with regard to the independence and impartiality of Chinese courts comes along with the claim upon the violation of particular obligations or commitments. Furthermore, in China –Measures Affecting Imports of Automobile Par t s( “Chi na – Aut omobi l e Par t s ”) , 61 obligations and commitments provided i nt h e Chi n a ’ s Ac c e s s i on Pr ot o c ola r er e f e r r e dt o by t h e 62 complainants. Above all, two specific judicial interpretations by the Supr e mePe op l e ’ sCou r ta r ei d e nt i f i e di nt hes ubmi s s i ono ft her e que s tf or the consultation, and subsequently in the submission of the request for the establishment of Panel in China –Measures Affecting the Protection and Enf o r c e me n to fI n t e l l e c t u alPr ope r t yRi gh t s( “Chi na–Intellectual Property Ri ght s ”) .63 These jurisprudential developments indicate that not only the 59. A closely-related example is the United States –Section 211 Omnibus Appropriations Act of 1998 (US –Section 211 Appropriations Act), where the Appellate Body, in paragraph 202-232, examines precisely “ a conclusion by a court on the basis of Section 211.”In this complaint, the Appellate Body clarifies the comparable civil protection as required by Article 42 of the TRIPS agreement has been provided by Section 211(a)(2) of the Omnibus Appropriations Act of 1998. WT/DS176/AB/R, adopted Feb. 1, 2002, paras. 203-232. 60. The relationship between substantive obligation and Article X was firstly touched upon in European Communities –Regime for the Importation, Sale and Distribution of Bananas. The Appellate Body, when addressing Article X:3(a), the Appellate Body holds in European Communities –Regime for the Importation, Sale and Distribution of Bananas III: “ Ar t i c l eX applies to the administration of laws, regulations, decisions and rulings. To the extent that the laws, regulations, decisions and rulings themselves are discriminatory, they can be examined for their consistency with t h er e l e v a n tp r o v i s i o n so ft h eGATT1 9 9 4 ”(emphasis original), WT/DS27/AB/R, adopted Sept. 25, 1997, para. 200. In European Communities –Measures Affecting the Importation of Certain Poultry Products, the Appellate Body refers to the aforementioned ruling, briefly discusses the application of Article X as follows: “ Ar t i c l eX relates to the publication and administration of laws, regulations, judicial decisions and administrative rulings of general application, rather than to the substantive content o fs u c hme a s u r e s ”(emphasis original), WT/DS69/AB/R, adopted July 23, 1998, para. 115. 61 . China-Measures Affecting Imports of Automobile Parts (China-Automobile Parts), WT/DS339/R, WT/DS340/R, WT/DS342/R (July 18, 2008). 62. In EC’ s submission for the request for the establishment of the Panel, it is submitted that “ Ch i n ah a sa c t e di n c o n s i s t e n tly with its obligations under the Marrakesh Agreement Establishing the World Trade Organization, a ss e to u ti nt h ePr o t o c o lo nt h eAc c e s s i o no ft h ePe o p l e ’ sRe p u b l i co f China to the WTO, in particular Part I paragraph 7.3 of the Protocol of Accession of China, and in paragraph 203 of the Working Party Report on the Accession of China in conjunction with Part I, paragraph 1.2 of the Protocol of Accession of China, and paragraph 342 of the Working Party Report on the Accession of China.”WT/DS339/8 (Sept. 18, 2006), at 3. Obligations and commitments provided in accession protocol and working party report are also referred to in China –Certain Measures Granting Refunds, Reductions or Exemptions from Taxes and other Payments (China –Tax Refunds), see WTO document, WT/DS358/13(July 13, 2007), WT/DS359/13 (July 13, 2007). 63. WTO document, WT/DS362/1 (Apr. 16, 2007), para. 1(2); WT/DS/362/7 (Aug. 21, 2007),


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result of a particular judgment of national courts is subject to the review of the WTO Panel/Appellate Body, but judicial interpretations by Chinese Supr e me Pe opl e ’ s Courts, a particular designation where the judicial interpretations enjoy the legal status of Chinese national law, are also to be scrutinized by the WTO Panel/Appellate Body. It is thus reasonable to expect that the complaint with regard to the independence and impartiality of Chinese courts is soon to come. Lastly, regarding the interpretative approach taken by the WTO Panel/Appellate Body on this obligation,64 it should be firstly pointed to the importance of the Article 31 of the VCLT,i np a r t i c ul a r“ g oodf a i t h. ”Th i s approach is consistent with the established jurisprudence of the WTO Panel/Appellate Body. Further, the Panel on China –Automobile Parts partly touches upon this issue. It relates to a commitment made by China in paragraph 93 of its Working Party Report. As this paragraph is referred to in paragraph 342 of its Working Party Report, and by virtue of Article 1.2 of Chi na ’ sAc c e s s i onPr ot o c o l ,t hi sc ommi t me nti si nc o r p or a t e di nt oChi n a ’ s 65 Accession Protocol and constitutes an integral part of the WTO Agreement. ThePa n e lt h e nn ot e st ha ti twou l d“ i n t e r pr e tCh i na ’ sc o mmi t me n tunde r paragraph 93 of the Working Party Report in accordance with the interpretative rules of the Vienna Convention to determine whether China has acted inconsistently with commitments under paragraph 93 of the Working 66 Pa r t yRe po r t . ” This interpretative approach is of greatr e l e v a nc ei ni n t e r p r e t i ngCh i n a ’ s WTO obligation to provide an independent and impartial judicial review s i n c et h i sPa ne lr e l a t e st oChi na ,a nde v e nmor e ,t oChi na ’ s“ WTO-pl us ” commitment. The interpretative approach of the Panel on China – Automobile Parts basically follows the existent practice of the WTO paras. 1(2), 1(3). The Panel for China — Measures Affecting the Protection and Enforcement of Intellectual Property Rights has been established on Sept. 25, 2007. 64. For different approaches to interpret China’ s“ WTO-plus”obligation, see, e.g., Dongli Huang, Legal Interpretation of Paragraph 242 of the Report of the Working Party on the Accession of China under the World Trade Organization Legal Framework, 40 J.W.T. 137 (2006). See also, Thomas Weishing Huang, T a i wa n ’ sPr o t o c o l1 6S p e c i a lS a f e g u a r da n dAn t i -dumping Enforcement on Imports from China, 41 J.W.T. 371 (2002). In interpreting the product-specific safeguard mechanism as embodied in China’ s Accession Protocol, Dongli Huang argues that this obligation should be read, to the most possible extent, in line with the existent WTO Agreements in order to maintain the consistence and coherence of the WTO legal system; by contrast, Thomas Weishing Huang holds the contrary. He argues that, if one equals this product-specific safeguard mechanism to existent safeguard regime, the objective and purpose of this product-specific safeguard mechanism would be much undermined. 65. Panel Report on China –Automobile, WT/DS339/R, WT/DS340/R, WT/DS342/R (July 18, 2008), para. 7.740. 66. Id. para. 7.741.

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Pa ne l / Appe l l a t eBody .Be s i d e s ,t hi sa ppr oa c ha l s os uppor t st hea ut hor ’ s argument paved above as well as the analysis to be conducted below: one s houl di nt e r pr e tChi n a ’ sWTO o bl i g a t i ont opr ov i dea ni nd ependent and impartial review in accordance with the interpretative rules laid down by the VCLT, in particular Article 31. This approach evinces the relevance of global and regional standards in interpreting this WTO obligation to provide an independent and impartial judicial review.67 III.GLOBAL AND REGIONAL STANDARDS IN RELATION TO INDEPENDENCE AND IMPARTIALITY A number of global and regional legal instruments have addressed to the i s s u eo f“ j ud i c i a li nde p e nd e nc e . ”Apa r tf r om t hea s pe c to ft hea dmi ni s t r ation of justice, including the financial autonomy; sufficient resources; appointment; tenure; and promotion, when adjudicating a case, two elements constitute the core of judicial independence: independence and impartiality. In addition to the jurisprudence of the WTO Panel/Appellate Body, it is indispensable to further explore these two concepts in the context of public international law. These international legal instruments, albeit mostly soft laws in nature, may contribute to a better understanding of judicial i nde p e nde n c ea nd ,c ons e q ue nt l y Chi na ’ sWTO o b l i g a t i on i nr e l a t i on t o “ i nde pe nd e ntj udi c i a lr e v i e w. ”Aspr e v i ous l ynot e d,t he s et woc onc e pt sa r e interrelated, and some jurisprudence has the tendency to examine these two concepts together.68 However, as most international instruments deal with these two concepts separately, it is thus feasible to follow this pattern. Besides, independence should be examined in two aspects: institutional independence and individual independence. Institutional independence means that judiciary, as a whole, should be independent of other branches, such as legislatures and executives. Individual independence means that an individual judge, when adjudicating a case, should not be subject to influence and interference both outside the judiciary, namely other governmental branches and inside the judiciary.

67. The author is deeply appreciative of the anonymous reviewer’ s comment in relation to the impetrative approach. Also owing to the availability of the Panel report on China –Automobile Parts, the author is thus is a better position to reflect this interpretative issue. The reviewer’ s comment helps the author to closely link the second and third section, and to strengthen my argument on the relevance of global and regional standards of judicial independence and impartiality in interpreting China’ s WTO obligation to provide an independent and impartial judicial review. 68. See, e.g., Findlay v. the United Kingdom, para. 73.


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A. Independence 1.

Institutional Independence

The Basic Principles on the Independence of Judiciary (hereinafter the UN Principles)69 of the United Nations offer some guidelines in relation to institutional independence. It is believed that judicial independence enshrined in the constitution or by the law helps to guarantee the prevention of judiciary from the interference of other governmental organs and institutions. Legislatures and executives are obliged to respect and observe this principle of judicial independence.70 This approach is also endorsed by the Council of Europe in its Recommendation No. R(94) 12 of the Committee of Ministers to Member States on the Independence, Efficacy and Role of Judges 71 (hereinafter the Council of Europe Recommendation). It is provided that, apart from the guarantee of Convention for the Protection of Human Rights and Fundamental Freedoms, the independence of judges should also be explicitly guaranteed in national constitutional principles.72 Apart from this broad principle, some detailed requirements related to jurisdiction and finality of judicial decisions are laid down in the UN Principles. As prescribed, judiciary should have jurisdiction over all judicial issues, and it is the judiciary who determines whether a case falls within its competence as defined by law.73 Besides, the finality of judicial decisions should be respected; they can not be revised by other branches.74 The Draft Universal Declaration on the Independence of Judiciary ( he r e i na f t e r“ t h e 75 Dr a f t De c l a r a t i o n” ) has also further elaborated this institutional independence. It reiterates that the judiciary should have jurisdiction of all issues of a judicial nature. Besides, it explicitly provides that those issues of its jurisdiction and competence should be included to its jurisdiction. 76 69. Basic Principles on the Independence of Judiciary, adopted by Seventh United Nation Congress on the Prevention and the Treatment of Offenders held in Milan from Aug. 26, to Sept. 6, 1985 and endorsed by General Assembly resolution 40/32 of Nov. 29, 1985 and 40/146 of Dec. 13, 1985. 70. The UN Principles, Principle 1. 71. Recommendation No. R(94) 12 of the Committee of Ministers to Member States on the Independence, Efficacy and Role of Judges, adopted by the Committee of Ministers on Oct. 13, 1994 at 518th of the Minister’ s Deputies. 72. The Council of Europe Recommendation, Paragraph 2(a). 73. The UN Principles, Principle 3. 74. The UN Principles, Principle 4. 75. Draft Universal Declaration on the Independence of Judiciary, also known as Singhvi Declaration. 76. The Draft Declaration, Paragraph 5(a). Similar provision is laid down in Beijing Statement of Principles on the Independence of Judiciary in the LAWSAIA Region, where it, in Paragraph 3(b),

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Therefore, displacement of the jurisdiction, previously vested in the ordinary courts, by ad hoc tribunals are not permissible. 77 Specific standards in relation to the independence of judiciary are available in African Union. The Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa78 ( he r e i n a f t e r“ the African Union Principles and Guidelines” )de a l with this jurisdiction issue. It is provided, in Ar t i c l e4 ( c ) ,t ha t“ t hej udi c i a r y s ha l lha v ej ur i s d i c t i o n ov e ra l li s s ue sofaj ud i c i a lna t u r e . ”Be s i d e s ,i t e mpha t i c a l l ys t i pu l a t e st h a tt hej ud i c i a r ys ha l lha v e“ e xc l us i v e ”a u t ho r i t yt o decide whether a case submitted to it falls into its competence as defined by the law. Similar provision is laid down in Beijing Statement of Principles on the Independence of Judiciary in the LAWSAIA Region (hereinafter Beijing Statement)79,whe r ei t ,i nPa r a g r a ph3( b )pr ov i d e st h a t“ t hej udi ciary has the jurisdiction, directly or by way of review, over all issues of a justiciable na t u r e . ”I nc ompa r i s on,t he Be i j i ng St a t e me nti swe a k e ri nr e s p e c to f jurisdiction, as it does not clarify who decides the scope of judicial issues. As t het e r ms“ ofaj u di c i a ln a t ur e ”a n d“ o faj us t i c i a bl ena t u r e ”n e e dt obe further clarified and defined, it is thus crucial for the judiciary to decide on its own which subject matter falls into its jurisdiction as defined by the law. Only by so doing can the judiciary be prevented from removing its j ur i s d i c t i on by de f i ni ng wha ti s s u ei s“ ofa j ud i c i a ln a t u r e ”t h r oug h legislative intervention. The institutional independence of the judiciary can thus be strengthened and safeguarded. The finality of judicial decisions should also be ensured so as to preserve the institutional independence of the judiciary. Judicial decisions should not be subject to revision of other non-judicial authorities. In other words, legislatures and executives are not allowed to reverse, retrospectively, the result of judicial decisions.80 That is, the juridical validity of judicial decisions and their status as res judiciata should not subject to actions of other branches, no matter whether such actions change or confirm the

pro v i d e st h a t“ t h ej u d i c i a r yh a st h ej u r i s d i c t i o n ,d i r e c t l yo rbywa yo fr e v i e w,o v e ra l li s s u e so fa j u s t i c i a b l en a t u r e . ” 77. Id. 78. The Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa, adopted as part of the African Commission’ s activity report at 2nd Summit and meeting of heads of state of African Union held at Maputo from July 4-12, 2003. 79. Beijing Statement of Principles on the Independence of Judiciary in the LAWSAIA Region, adopted by the Chief Justices of the LAWASIA region and other judges from Asia and the Pacific in Beijing 1995, and adopted by the LAWASIA Council in 2001. 80. Principle 4 of UN Principles; Paragraph 6 of Draft Universal Declaration; Article 2(a)(iv) of Principle I of Council of Europe Recommendation; Article 4(f) of the African Union Principles and Guidelines.


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judicial decisions concerned. 81 Legislative intervention with the aim to bringing about specific result of a case should also be prohibited. It should be nevertheless noted that this principle is without prejudice to amnesty, pardon, mitigation, or commutation by competence authorities. The European Court of Human Rights has dealt with both the jurisdiction and finality issues. In Papageorgiou v. Greece,82 the Court was requested to declare that Greece infringed Article 6(1) of the European Convention of Human Rights on the ground of, inter alia, the removal of the c ou r t ’ sj ur i s d i c t i on o fh i sc a s e .TheCo ur tf i r s t l yr e c og ni z e dl e g i s l a t i v e powers to regulate individual rights through the passage of new provisions. However, the Court then turned to, referring to Stran Greek Refineries and Stratis Andreadis v. Greece,83 a r g uet ha t“ t hepr i nc i p l eo ft her ul eofl a wa nd the notion of fair trial enshrined in Article 6 [of the Convention] precluded the interference by the Greek legislature with the administration of justice 84 designed to influe n c et hej u di c i a ld e t e r mi na t i ono ft hedi s pu t e . ” The Court in Stran Greek Refineries and Stratis Andreadis v. Greece held that the a pp l i c a n t ’ sr i g hto ff a i rt r i a lwa sv i o l a t e ddu et ot h el e g i s l a t i v ei nt e r v e nt i o n “ i nama n ne rwhi c hwa sd e c i s i v et oe n s u r ethat the imminent outcome of 85 pr oc e e di ng si nwhi c hi t[ t h eSt a t e ]wa sap a r t ywa sf a v our a bl et oi t . ” The Court then examined the case at dispute, where it ruled that with the passage of new provisions with the aim to clarifying the meaning of law, consequently removing the jurisdiction of litigated cases from the court and di c t a t i ngr e l e v a ntc l a i mst obes t r u c kout ,i n f r i ng e dt hea pp l i c a n t ’ sr i g hto f fair trial.86 Al t houg ht heCo ur tdi dno tr e f e rt ot h et e r m of“ a ni nde pe nd e n t a ndi mpa r t i a lt r i buna l , ”t h er e levance is nevertheless clear in light of the intervention of legislature: its effect, method and timing. The legislative intervention, through the enactment of laws, to on-going litigated disputes undermines the independence of judiciary and violates the a pp l i c a nt ’ sr i g h t to fair trial. The case-law referred to, Stran Greek Refineries and Stratis Andreadis v. Greece, is worth noting in detail as it is highly relevant in determining and ascertaining the independence of Chinese judiciary. In 1972, Andredis 81 . INTERNATIONAL COMMISSION OF JURISTS (ED.), INTERNATIONAL PRINCIPLES ON THE INDEPENDENCE AND ACCOUNTABILITY OF JUDGES, LAWYERS AND PROSECUTORS: A PRACTITIONERS’ GUIDE 23 (International Commission of Jurists. 2004). 82. Papageorgiou v. Greece, ECtHR judgment of Oct. 22, 1997, Series of 1997-VI. 83. Stran Greek Refineries and Stratis Andreadis v. Greece, ECtHR judgment of Dec. 9, 1994, Series of A, no. 335-A. 84. Papageorgiou v. Greece, para. 37. 85. Id. para. 37. 86. Id. paras. 38-40.

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concluded a construction contract with the Greek government, which was then a military regime. Stran Greek Refineries, Andredis being the sole stakeholder, was established in order to carry out the construct contract. After the democracy was restored, Greek government considered this contract prejudicial to national economy and, by relying on Article 2(5) of Law no. 141/1975, the Greek government terminated this contract. Disputes between Stran Greek Refineries and Greek government arose both in the arbitration and civil judicial procedures. Both proceedings, to a substantial extent, were found against the state.87 With regard to the civil proceedings, the case was appealed by the state to the Court of Cassation on 15 December 1986. However, the Greek Parliament enacted Law no. 1701/1987, which in Article 12 reads as follows: “ 1. The true and lawful meaning of the provisions of Article 2 para. 1 of Law no. 141/1975 concerning the termination of contracts entered into between April 21, 1967 and July 24, 1974 is that, upon the termination of these contracts, all their terms, conditions and clauses, including the arbitration clause, are ipso jure repealed and the arbitration tribunal no longer has jurisdiction. “ 2.Arbitration awards covered by paragraph 1 shall no longer be valid or enforceable. “ 3.Any principal or ancillary claims against the Greek State, expressed either in foreign or local currency, which arise out of the contracts entered into between April 21, 1967 and July 24, 1974, ratified by statute and terminated by virtue of Law no. 141/1975, are now proclaimed time-barred. “ 4.Any court proceedings at whatever level pending at the time of the enactment of this statute, in respect of claims within the meaning of the preceding paragraph, are declared void. ” As Law no. 141/1975 was authorized by the Greek Constitution to enact legislation once and for all within three months upon the entry into force of constitution in order to maintain the legal stability, the First Division of Court of Cassation thus held that subsequent amendments, additions to, or authoritative interpretations of Law 141/1975 in the form of ordinary legislation were prohibited by the constitution. 88 However, the plenary 87. Id. paras. 6-18. 88. Id. para. 21.


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s e s s i on oft he Cou r tofCa s s a t i o n ma i nt a i n e dt h a t“ t he pr ohi b i t i on on supplementing or modifying the content of such laws does not mean that t he y ma y ne v e rb ei nt e r pr e t e d , ”89 a nd t ha t“ [ T] h e pur po s e of s u c h interpretation is not to amend the substance of the law interpreted, but to clarify its original meaning and to resolve disputes that have arisen in 90 c on ne c t i onwi t hi t sa ppl i c a t i onorwhi c hma ydos oi nt hef ut u r e . ” Basing on this reasoning, the Court of Cassation held Article 12 of Law no. 1701/1987 constitutional, and ruled against the applicant. Before the European Court of Human Rights, the applicant contended that the legislative intervention had effectively removed the jurisdiction of this litigated case. The legislature had decided a case to which it was a party.91 On the contrary, Greek Government argued that, as the source of all power, the Parliament was fully justified in authoritatively interpreting enacted laws. This was also affirmed the Article 77 of the Greek Constitution. Legislative interpretation in the form of legislation should not be regarded as an interference of the judiciary, as the latter could determine on its own whether such interpretation violated the principle of the separation of powers. Judiciary could thus safeguard itself against improper intervention.92 After examining the timing and manner of the adoption of Article 12 of Law no. 1701/1987, the Court held that the legislative i nt e r v e nt i oni ns uc hama nne rt h a twa s“ d e c i s i v et oe n s ur et ha tt hei mmi ne nt 93 out c omeofpr oc e e d i ng si nwhi c hi twa sapa r t ywa sf a v our a b l et oi t ” infringed the applic a n t ’ sr i g htoff a i rt r i a lbya ni n de pe nde n ta ndi mpa r t i a l tribunal. With regard to the finality of judicial decision, the jurisprudence of European Court of Human Rights has also touched upon this. In Findlay v. the United Kingdom,94 where the applicant complained that the court martial i sno t“ a ni nd e pe n de n ta ndi mpa r t i a lt r i b un a l , ”t h eCour te xa mi ne dt h e composition of the court martial and the influence of the convening officer to it. The Court observed that the convening officer played a significant role in deciding the charges against the applicant, the type of court martial and its composition, and the appointment of prosecuting and defending officers.95 Besides, members of the court martial were subordinate in rank to the

89. 90. 91. 92. 93. 94. 95.

Id. para. 22. Id. Id. para. 42. Id. para. 43 Id. para. 50. Findlay v. the United Kingdom, ECtHR judgment of February 1997, Series 1997-I. Id. para. 74.

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convening officer.96 Above all, the convening officer had the power, in certain circumstances, to dissolve the court martial both before and during t hepr o c e e d i ng .Thec o nv e ni ngof f i c e re v e na c t e da sa“ c onf i r mi ngof f i c e r ; ” without his ratification the decision of the court martial could not be effective.97 Th eCou r tt h e nc onc l ude dt h a tt h ec o ur tma r t i a li s“ c on t r a r yt o the well-established principle that the power to give a binding decision which may not be altered by a non-judicial authority is inherent in the very not i on o f“ t r i bun a l ” and can also be seen as a component of the “ i nde pe nd e nc e ”r e qu i r e d by Ar t i c l e 6 pa r a . 1 [of the European 98 Conv e nt i o n ] . ” Th eCour tt hushe l dt ha tt hea p pl i c a nt ’ sdoubt swi t ht h e independence of the court martial were objectively justified. 2.

Individual Independence

As previously noted, individual independence refers to the autonomy of an individual judge in adjudicating a given case. A judge should be free from unwarranted interference both from other governmental branches and the judiciary itself. Theres ho ul dbeno“ a nyr e s t r i c t i o ns ,i mpr ope ri n f l u e nc e s , inducements, pressures, threats or interferences, direct or indirect, from any 99 qua r t e ro rf o ra nyr e a s on. ” In decision-making, a judge should be able to pronounce its decision freely. No mater of what grade or rank, in terms of the hierarchical organization of judiciary where exists, the judge is, he/she should enjoy full autonomy in making his/her decision, independent of his/her colleagues and superiors.100 The Council of Europe Recommendation also stipulates that sanctions against those who seeking to interfere the judicial decision-making should be provided. Besides, judiciary should not be obliged to report the merits of cases to anyone outside the judiciary.101 Individual independence is also closely related to the administration of justice.102 As pointed out, the institutional independence and the individual independence may not be always complementary to each other. 103 The 96. Id. para. 75. 97. Id. paras. 75, 77. 98. Id. para. 77. 99. The UN Principles, Principle 2. 100. The Draft Universal Declaration, Article 3. 101. The Council of Europe Recommendation, Paragraph 2(d). 102. Both institutional independence and individual independence may be subject to interference through the administration of justice. In respect of institutional independence, it may concern with the appointment of judges in higher courts, budgetary issues, and the interaction of the judiciary and Ministry of Justice, which is normally allocated in the executive branch. 103. Adam Winkler & James Zagel, The Independence of Judges, 46 MER. L. REV. 795, 798 (1992).


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judiciary as a whole may constitute a hindrance to the autonomy of individual independent judge through the administration of justice. The administration of justice covers various elements, ranging from selection recruitment and training, appointment and removal to remuneration and social welfare. Detailed rules are laid down in European Charter on the Statue for Judges and Explanatory Memorandum.104 As prescribed in the g e ne r a lpr i nc i pl e s ,de c i s i ons i nr e l a t i on t ot he “ s e l e c t i on ,r e c r u i t me nt , a pp oi n t me n t ,c a r e e rpr og r e s sort e r mi na t i ono fof f i c eofaj udg e ”s houl db e made by an authority independent of legislature and the executive powers. This authority should be composed of more than a half of judges elected by their fellow judges.105 An internal self-governance by judges inside the judiciary is indispensable in the administration of justice, and is essential to guarantee the individual independence. These various elements of the a dmi ni s t r a t i ono fj us t i c ea l s oa f f e c tt h equa l i f i c a t i o nof“ a ni n de pe nde n t t r i buna l . ”I nBryan v. the United Kingdom,106 the European Court of Human rights was called upon to rule whether a housing and planning inspector c on s t i t ut e s“ a ni nd e p e nd e n ta n di mpa r t i a lt r i bun a l . ”TheCou r the l dt ha t“ i n or de rt oe s t a bl i s hwhe t he rabodyc ou l dbec on s i de r e d“ i n de pe nde n t , ”r e g a r d must be had, inter alia, to the manner of appointment of its members and to 107 t he i rt e r m ofof f i c e . ” Thu s ,a“ g ooda dmi ni s t r a t i on”ofj u s t i c edo e sno t only constitute a safeguard to individual independence, according to this holding, but it is also a factor to determine whether an entity constitutes an independent tribunal or not. This view is reaffirmed in Findlay v. the United Kingdom. Besides, the Court further elaborates in Incal v. Turkey108 that, in determining whether a tribunal is independent or not, the decisive point is t hea ppl i c a nt ’ sdoub t sa bout the independence of the tribunal can be held to be objectively justified. 109 An appearance of independence is thus of importance to clear the doubts of the applicant. Two major issues in relation to the administration of justice deserve to be further examined: promotion and disciplining. In order to prevent the promotion of judges, where such system exists, from serving as an inducement which undermines individual independence, this promotion mechanism should be based on objective factors and standards, in particular ability, integrity and experience.110 To ensure its objectivity, as previously 104. 105. 106. 107. 108. 109. 110.

European Charter on the statue for judges and Explanatory Memorandum (DAJ/DOC (98)). Article 1.3 of European Charter on the statue for judges and Explanatory Memorandum. Bryan v. the United Kingdom, ECtHR judgment of Nov. 22, 1995, Series of A, no. 335-A. Id. para. 37. Incal v. Turkey, ECtHR judgment of June 9, 1998, Series 1998-IV. Id. para. 71. UN Principle 13; Principle Article 4(o) of The Principles and Guidelines on the Right to Fair

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noted, substantial participation of judges in the decision-making process should be made available, if these decisions are not directly decided by judges or their representatives. This requirement is equally applicable to disciplining. The term of office of judges should be secured. The suspension or removal of judges should be only possible in accordance with the law. An opportunity of independent judicial review should be provided against these decisions.111 B. Impartiality The impartiality of a court may be explored in two dimensions: the case and the parties to it. That is, an impartial court suggests the absence of interest or stake in a particular case as well as the absence of bias, animosity ors y mpa t hyofe i t he rofp a r t i e s .I npa r a l l e lt o“ i n de pe nde n c e , ”g l oba la n d regional instruments have also laid down some standards in relation to the impartiality of judiciary. The aforementioned Principle 2 of the UN Principles does not only prescribe the independence of judiciary, but also dictates the courts to decide cases before them impartially on the basis of facts and in accordance with the law. In addition, unfettered freedom should be had to the courts. Similar to the UN Principles, it is prescribed, in Article 2(d) of the Council of European Recommendation, cases should be impartially decided in accordance with the conscience of judges, their interpretation of facts, and the prevailing rules of the law. The African Union Principles and Guidelines spells out the impartiality of the judiciary in more detail. The judiciary is obliged to base its decisions on objective evidence, facts and arguments.112 It also prescribed three aspects for the determination of the impartiality of judiciary: equal position to act in the proceeding; the 113 j udg e ’e xpr e s s i ono fa nopi ni on,a ndt hee x i s t e nc eofhi s / he rownp r i o r i t y . Concrete examples are also provided to demonstrate the undermining of the impartiality of the judiciary. 114 Above all, the Bangalore Principles of Judicial Conduct115 stipulate, in great detail, various norms of conduct in order to ensure the impartiality of the judiciary. Judges are obliged to disqualify themselves wherever there are doubts in relation to their ability in Trial and Legal Assistance in Africa. 111. Principle 19-20; UN Principles, Article 3 of Principle 4 of Recommendation. 112. African Union Principles and Guidelines, Article 5(a). 113. African Union Principles and Guidelines, Article 5(c). 114. African Union Principles and Guidelines, Article 5(d). 115. Draft Bangalore Principles of Judicial Conduct, adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justice held at the Peace Palace, The Hague, Nov. 25-26, 2002.


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deciding the cases impartially.116 The European Court of Human Rights has also dealt with the impartiality of judiciary in a number of cases. The Court held, in Castillo v. Spain,117 that two tests should be applied to determine the existence of the impartiality of tribunals: subjective test and objective test. The subjective t e s tr e l i e supo n“ t hepe r s o na lc onv i c t i onofapa r t i c ul a rj udg ei nag i v e n c a s e ”118 ;t h eo b j e c t i v et e s ti st oa s c e r t a i n“ whe t he rt he j udg e of f e r e d 119 guarantees sufficient to exclude any legitima t ed oubti nt h i sr e s pe c t . ” The personal impartiality of a particular judge in presumed unless proof to the contrary is demonstrated.120 With regard to the objective test, the Court held t ha tc on f i d e nc e oft he i mpa r t i a l i t y oft h ec ou r t smus t“ i ns p i r ei nt h e 121 publ i c . ” “ Ac c o r di n g l y ,a nyj udg ei nr e s pe c to fwhom t he r ei sal e g i t i ma t e 122 r e a s ont of e a ral a c ko fi mpa r t i a l i t ymus twi t hdr a w. ” In deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the deci s i v ec r i t e r i o ni s“ whe t he rt hi sf e a rc a nbehe l dt o 123 be objectively justified.” These two tests have been repeatedly referred to in the jurisprudence of European Court of Human Rights. The Court in this litigated case referred to its previous case-law, Incal v. Turkey,whe r et heCou r tha sh e l dt h a t“ [ A] st o t hec on di t i ono f‘ i mp a r t i a l i t y ’wi t hi nt h eme a ni ngoft h a tpr ov i s i on,t he r ea r e two tests to be applied: the first consists in trying to determine the personal conviction of a particular judge in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any 124 l e g i t i ma t edou bti nt hi sr e s pe c t . ” Besides, this view is also re-affirmed in 125 Findlay v. the United Kingdom. In sum, as the subjective impartiality is normally presumed, unless proved to be the contrary, the operative part of 116. Draft Bangalore Principles of Judicial Conduct, Value 2. 117. Castillo v. Spain. ECtHR judgment of Oct. 28, 1998, Reports 1998-VIII. 118. Id. para. 43. 119. Id. para. 43. 120. Id. para. 44. 121. Id. para. 46. 122. Id. 123. Id. 124. Incal v. Turkey, para. 65. For earlier cases, see, e.g., Pullar v. the United Kingdom, where the Co u r t ,i np a r a g r a p h3 0 ,h o l d st h a t“ [I]t is well established in the case-law of the Court that there are two aspects to the requirement of impartiality in Article 6 para. 1 (Art. 6-1). First, the tribunal must be subjectively impartial, that is, no member of the tribunal should hold any personal prejudice or bias. Personal impartiality is to be presumed unless there is evidence to the contrary. Secondly, the tribunal must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. ”I nt h i sc a s e ,t h eCo u r tf u r t h e rr e f e r st oi t sp r e v i o u sc a s e law Fey v. Austria (judgment of Feb. 24, 1993, Series A no. 255-A). 125. Findlay v. the United Kingdom, esp. para. 73.

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t he Cour t ’ sj ur i s p r ude n c ei st hus :whe t he rt he l i t i g a nt ’ sf e a ro ft h e impartiality of the tribunals can be objectively justified. Nevertheless, the Court seems not to have a clear picture in relation to what factors to be taken i nt oa c c o unti nt hede t e r mi ni ngt hee xi s t e nc eo ft he“ ob j e c t i v e l yj us t i f i e d f e a rofi mpa r t i a l i t y ” . IV. JUDICIAL REVIEW IN CHINA: LAW AND PRACTICE A. Progress So Far Made 1.

Second Five-Year Court Reform Program

I n2005,Supr e mePe opl e ’ sCour ti s s ue di t sSe c ondFi v e -Year Reform 126 Pr og r a m f orPe opl e ’ s Cour t s , following its first Five-Year Reform Program in 1999. The Reform Program comprises seven dimensions: (1) litigation procedure systems; (2) the system of trial guidance and the mechanisms for the uniform use of law; (3) work systems and methods to enforce judgments; (4) reforming and perfecting trial organs; (5) the management of trials and the political affairs; (6) the system of judicial personnel management; (7) the internal and external supervision for the Pe opl e ’ sCo ur t s ;a nd( 8) continuing reform to the court system. In the reform program, the objective to establishing a judicial system under the socialist rule of law is reiterated. It also points out the role of the Chi ne s eCommuni s tPa r t y ,s t a t i ngt h a tPe opl e ’ sCo ur t ss hou l dbes ub j e c t i v e t ot h epa r t y ’ sl e a de r s h i pa n dg u i da nc e ,a n dt ot hes upe r v i s i ono ft h ePe op l e ’ s Congress and its standing committee. The courts should preserves, in its judicial system, the characteristic of socialist democracy. Such statements i l l us t r a t et hep ol i t i c a le n v i r onme nti n whi c h Chi n a ’ sj ud i c i a lr e f or mi s situated, and present the potential challenges and interferences ahead. However, the reform program also emphasizes on the i mpor t a nc eo f“ j u s t i c e a nde f f i c i e n c y ”i ns h a pi ngt hene wj u di c i a ls y s t e m whi l ei ti ns i s t st h er e f or m should be rooted in Chinese societal context, though borrowing other c ou nt r i e s ’e xpe r i e nc e sa tt hes a met i me .Thev a r i o usob j e c t i v e spr e s e nt complexities a n dt hec onf l i c t so fv a l u e si nCh i na ’ sl e g a ls y s t e m,a ndt hu s constitute as a constraint of the judicial reform and hindrance to its potential progress.127 126. An unofficial tra n s l a t i o nd o n ebyt h es t a f fo ft h eUn i t e dSt a t e s ’Co n g r e s s i o n a l -Executive Commission is available at http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=38564 (last visited July 14, 2007). 127. For an updated review of China’ s progress in judicial reform and comments, see Benjamin


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The reform program also emphasizes the importance of the judicial interpretation, case guidance system, and the role of adjudicative c ommi t t e e s .I ti ss t i pul a t e dt h a tt h eSupr e mePe op l e ’ sCou r twi l li s s u e regulations related to the case guidance system, outlining the designation of standards and procedures for selecting guiding cases and the methods for issuing guidance rules. This is aimed to unify legal applicable standards, to guide the work of lower courts, and to enrich and develop legal theories and other uses (Ar t i c l e13) .Th epr oc e dur e sf o rt heSup r e mePe op l e ’ sCour tt o issue judicial interpretations should be reformed so as to ensure greater c oh e r e nc e .TheSupr e mePe opl e ’ sCour twi l lr e g ul a r l yc l e a nup,a me nd, abolish, and compile judicial interpretations, and regularize the notification systems of judicial interpretations to the NPC Standing Committee (Article 14). Specialized criminal and civil/administrative adjudicative committees wi l lbee s t a bl i s h e di nSupr e mePe opl e ’ sCour twh i l eHi g hPe o pl e ’ sCou r t s a nd I n t e r me di a t e Pe o pl e ’ s Cour t sc a ne s t a b l i s hs pe c i a l i z e dc r i mi na l committees and civil/administrative committees according to their needs (Article 23). The judicial interpretation and the case guidance system are some pe c ul i a rp r a c t i c e si nCh i n a ’ sj ud i c i a ls y s t e ms .The ya i mt oe nh a nc i ngt h e uniformity of the interpretations of laws and regulations and their applications. Given the limited training and knowledge of the judges in lower courts, such practices, from a realistic perspective, have their merits. They contribute to the improvement of the adjudicative quality in lower courts. However, such practices constitute a stronger form judicial law-making since the interpretation and guidance are of general application, a nda c c or d i ngt heSupr e mePe opl e ’ sCou r t ,i t si n t e r p r e t a t i onofl a we n j oy s the same legal status as legislation. Besides, the legality and legal status of judicial interpretations are explicitly recognized and defined by The Law on Legislation. Given the great threat of the local protectionism, the reform program takes a top-downa ppr oa c h .Th eSup r e mePe opl e ’ sCour ta i msa te ns u r i ng the u ni f o r mi n t e r p r e t a t i ona nda pp l i c a t i onofl a wsi nChi na ’ sj ud i c i a ls y s t e m through strengthening judicial interpretations and case guidance system, and thus prevents incoherent interpretations and applications of laws and regulations due to the interferences of local governments. However, the pursuit for and realization of judicial independence should find its roots in the practices of local courts. Only when local courts have the capacity and are encouraged to challenge, with reasoned rationale based on their own L. Liebman, Ch i n a ’ sCo u r t s :Re s t r i c t e dRe f o r m, 21 COLUM. J. ASIAN L. 1 (2007).

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be l i e f s pr ov i de d, t h e “ a ut hor i t a t i v e i n t e r pr e t a t i on s ” c a n j udi c i a l independence be realized. Precluding the lower courts from interpreting and applying laws by themselves does not lead to the establishment of an independent judicial review, but on the contrary, estranges from it. The same rationale applies to the adjudicating committee. Although it is seen as a device to enhance the adjudicating quality, it nevertheless also poses to the judicial independence, notably individual independence.128 2.

Judicial Interpretations in Relation to Trade-Related Issues

Fol l owi ngChi na ’ sa c c e s s i o n,Supr e mePe opl e ’ sCour ti s s ue danumbe r of interpretations with the aim to provide a prompt review of relevant administrative actions.129 Four among these interpretations are of greater significance and worth of further elaboration, namely, Regulations on Several Problems in the Trial of Trade-Related Administrative Litigation Cases; Regulations on the Application of Law in the Trial of Anti-Dumping Administrative Litigation Cases; Regulations on the Application of Law in the Trial of Anti-Subsidy Administrative Litigation. It also co-issued with the Supr e mePe opl e ’ sPr oc ur a t or a t et h eI n t e r pr e t a t i onbyt heSup r e mePe op l e ’ s Cour tand t h e Sup r e me Pe opl e ’ s Pr o c ur a t or a t e on Se veral Issues of Concrete Application of Laws in Handling Criminal Cases of Infringing 128 . One of the r e v i e we r ’ s comments relates to my over-concern about the adjudicative committee and case guidance system, and points to the Interpretation No. 86 of the Constitutional Court in Taiwan to reconcile the potential conflicts. While the author fully agrees that, if potential interpretation space is allowed for the individual judge hearing the case, individual judicial independence can be to some degree maintained. Nevertheless, it relates to another issue which this paper does not touch upon. It blurs the difference between legislative branch and judicial organ. The Panli system maintained in Taiwan or the case guidance system in China are bereaved of their context: the factual basis of the case. The Supreme Court in Taiwan in editing their Panli, or the Supreme People’ s Court, in exercising its power of supervising the lower courts and laying down guidance, turns out to be a legislative organ. While it is also true that Chinese legal system is unique in that its legislature, the People’ s Congress, can oversee the People’ s courts, whereby legislative power and judicial power here is a fuzzy mixture. This characteristic seems unpromising for Chinese courts to escape the scrutiny of the WTO Dispute Settlement Mechanism. However, as noted in my concluding remark, the issue of separation of power is not what I intend to deal with in this paper. Further, in respect of the adjudicative committee, the major flaw of this system is the discrepancy between those hearing the case and those deciding the case. A case may be decided not by judges sitting before the litigants but behind the veil of whom the litigants are ignorant. 129. Judicial interpretation is a peculiar practice in Chinese judicial system. It serves as guidance to the lower court, and is legal binding in nature. See generally, NANPING LIU, OPINIONS OF THE SUPREME PEOPLE’ S COURT: JUDICIAL INTERPRETATION IN CHINA (Sweet & Maxwell Asia; Sweet & Maxwell. 1997). See also Nanping Liu, An Ignored Source of Chinese Law: the Gazette of Supreme Pe o p l e ’ sCo u r t , 5 CONN. J OF INT’ L L. 271 (1989); Nanping Liu, Legal Precedents with Chinese Characteristics: Published Cases in the Gaz e t t eo fS u p r e mePe o p l e ’ sCo u r t , 5 J. OF CHIN. L. 107 (1991).


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Intellectual Property. Regulations on Several Problems in the Trial of Trade-Related Administrative Litigation Cases define the scope of trade-related administrative litigation cases, and clarify the standing, standard of review and applicable laws. The regulations also explicitly, in Article 9, take the treaty-consistent interpretation approach, stipulating that the interpretation c on s i s t e ntwi t hChi n a ’ st r e a t yobl i g a t i on s should apply when two reasonable interpretations of the legal text at issue are available. It should also be noted that courts are limited to review the administrative acts for the legality, based on the examination of the evidences, the interpretations of the legal rules, procedural requirements, misuses or lacks of competence, manifestly unfair or refusal of the legal duties, and that the inquiry for appropriateness or reasonableness is not allowed (Article 6). Regulations on the Application of Law in the Trial of Anti-Dumping Administrative Litigation Cases define the scope of the anti-dumping acts subjective to administrative review. The regulations also lay down the rules on the standing, defendant authority, jurisdiction, burden of proof, examination of the evidence, and standard of review. Similar stipulations are included in the Regulations on the Application of Law in the Trial of Anti-Subsidy Administrative Litigation. With regard to the standard of review, insufficiency of the evidence, misinterpretation of laws and administrative regulations, the violation of procedural requirements, and misuses or lacks of competence are expressly identified (Article 12(2)). It should also be pointed out that factual materials not included in the records during the anti-dumping or anti-subsidy investigations should not be presented as evidences to justify the anti-dumping or anti-subsidy decisions (Article 7(2)). In response to an agreement between Deputy Premier Wu Yi and the U.S. government at the 15th annual meeting of the Joint Commission on Comme r c ea nd Tr a de ,Supr e me Pe op l e ’ sCo ur ta nd Sup r e me Pe op l e ’ s Procuratorate issued a new judicial interpretation concerning the infringement of intellectual property rights. According to some observers, the interpretationt ou c he su ponf i v ema i ne l e me nt s :“ ( 1)l owe rt henume r i c a l thresholds determining the criminal status of infringing acts; (2) allow for accomplice liability for importers, exporters, landlords, and others who assist infringers; (3) permit goods produced in factories and/or kept in warehouses to be included in sales calculations; (4) authorize using the number of illegally duplicated disks or internet advertising revenue to satisfy the for-profit requirement; and (5) expand the definition of an infringing tr a d e ma r k . ”Pr i o rt ot h er e que s tf orc o ns u l t a t i ono ft heU. S,t heSupr e me

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Pe opl e ’ sCou r t ,onAp r i l5, 2007, issued another interpretation governing criminal cases of infringing intellectual property rights. It widens the scope of“ r e pr odu c t i ona ndd i s t r i bu t i on”g ov e r ne di nAr t i c l e217o fCr i mi na lLa w so as to include advertising for the sale of copyright-infringing product. It also lowers again the thresholds, in terms of illegal copies, determining “ s e r i ou s ”o r“ e s pe c i a l l ys e r i ous ”r e f e r r e dt oi nArticle 217 of Criminal Law. As previously noted, the reason why these judicial interpretations are so important is that provisions in the relevant national legislations are often too vague, and the lower courts are not so equipped with the knowledge to apply laws concerning the international trade. Judicial interpretations issued by the Supr e me Pe opl e ’ s Cou r t ,s ome t i me sc o-i s s ue d wi t h Supr e me Pe op l e ’ s Pr oc u r a t or a t e ,a r et huss e r v ea sg ui da nc ef o rt h el owe rc our t st o“ e f f e c t i v e l y a ndc or r e c t i v e l y ”a pp l yt her e l e v a ntlegislations. It is expected, by so doing, that the coherence of the interpretation of laws and the quality of adjudication can be enhanced. However, as will be examined in the f ol l owi ngs ub s e c t i o n,t h e s ev a r i ousi nt e r p r e t a t i on ss e r v eonl y“ e f f e c t i v ea n d cor r e c t ”a p pl i c a t i o n of l a ws a nd r e g ul a t i on si nr e l a t i o nt oe x t e r na l trade-related disputes. Efforts and progress as to ensure the independence and impartiality of judiciary have not satisfactorily made. As will be illustrated, the practices of judicial interpretations and case guidance system are among those factors undermining the independence and impartiality of Chinese judicial system, and make it difficult to pass the scrutiny of the WTO requirements. B. Task Half-Accomplished: the Independence and Impartiality of Chinese Courts 1.

The Administration of Justice

Several legal instruments have been laid down in order to better the administration of justice in China. Three legal (policy) instruments are illustrative, in terms of time point of issuance and enactment, legal status, and subject matter: Law on Judges; Code of Conduct for Judges (for Trial Implementation); and Opinions on Strengthening the Adjudicative Work with the aim to Providing Judicial Protection for the Construction of Innovative State. Law on Judges, effectuated on July 1, 1995, lays down the framework for, inter alia, the appointment, removal, promotion, and disciplining. In general, it was an advanced legislation, in light of the time of its enactment. While it is prescribed that the pr e s i de n tofp e op l e ’ sc o ur t ss houl d be


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130 a pp oi n t e dbyt hepe op l e ’ sc ong r e s sa tc o r r e s pond i n gl e v e l , the Chinese Communist Party is not referred to in this act. Besides, judges are obliged to impartially decide a case based on facts and in accordance with the law.131 Minimum standards of legal education are also explicitly laid down in this act, with the aim to improving the quality of the judges and consequently the adjudication.132 Nevertheless, as the very first article provides, the objective and purpose of th i sa c ti st oe n s ur et h a t“ pe o pl e ’ sc o ur t s ”a d j ud i c a t ec a s e s independently, and that judges carry out their duties in accordance with the law. It appears that independence should be collectively enjoyed by the j udi c i a r ya sawhol e ,na me l y ,pe opl e ’ sc o u r t s .This echoes some scholarly work. In China, the power of independent adjudication is vested in courts, and not in individual judges, which suggests that judicial independence in China can only achieved in a collective sense. It explains why it is so difficult, if not impossible, to bring about individual independence in Chinese judicial system.133 Ten years after the enactment of Law on Judges, Code of Conducts for Judges (for Trial Implementation) wa si s s ue dbySupr e mePe opl e ’ sCou r ton November 4, 2005. As this Code of Conduct was specifically laid down for judges, and it had been ten years since the enactment of Law on Judges, it thus serves as a good basis to examine the progress made, or the change of mindset in relation to judicial independence. Surprisingly, Marx-Leninism, Ma o,De ng ,a nd“ t h r e e -r e pr e s e n t a t i on ”a r er e f e r r e dt oi nt hev e r yf i r s ta r t i c l e of this code of conduct. Western lawyers may also be bewildered to find that this code covers so detailed regulation, ranging from dress code, 134 manner, 135 to specific issues concerning adjudicating a case, such as jurisdiction, 136 trial hearing, 137 mediation, 138 and how to hand down a verdict.139 This code of conduct can be seen as a mini-procedural law or a manual for judges. This may suggest that the complexity of cases before lower courts has already exceeded the capacity of lower courts, and more detailed guidelines are necessary. It also reflects that the understanding of j udi c i a lf unc t i onbyt heSu pr e mePe opl e ’ sCou r t .“ Ef f e c t i v e ”a nd“ c o r r e c t ”

130. La wo nJ u d g e so fPe o p l e ’ sRe p u b l i co fCh i n a( h e r e i n a f t e rLa wo nJ u d g e s ) , Ar t i c l e1 1 . 131. Law on Judges, Article 7(2). 132. Law on Judges, Article 9(1)(vi). 133. KEYUAN ZOU, CHINA’ S LEGAL REFORM 150 (Martinus Nijhoff Publishers 2006). 134. Code of Conduct of Judges (in Trial Implementation, herinafter Code of Conduct of Judges), Article 6. 135. Code of Conduct of Judges, Article 7. 136. Code of Conduct of Judges, Chapter II. 137. Code of Conduct of Judges, Chapter III. 138. Code of Conduct of Judges, Chapter IV. 139. Code of Conduct of Judges, Chapter V.

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application of laws and regulations are enforced by a centralized and top-down approach. Nevertheless, this code of conduct does also deal with the independence and impartiality of judiciary. In Article 3, it is stipulated that judges shall adjudicate independently in accordance with the law, and shall not be subject to interferences of administrative agencies, social groups, and individuals. Judges should insist on its correct opinions, resisting the improper influences of power, money or social relationships. They shall remain impartial, and equally protect the legitimate interests. The requirements of independence and impartiality do not deviate with international standards. However, they do not offer much help to ensure the independence and impartiality of Chinese courts, as the issue of Chinese Communist Party has not resolved. Opinions on Strengthening the Adjudicative Work with the aim to Providing Judicial Protection for the Construction of Innovative State,140 issued on January 11, 2007 is even more illustrative. As its title suggests, courts are seen as an actors to carry out policy goals. In the preamble, the central committee of Chinese Communist Party is explicitly referred. Various policy goals are identified in these opinions. They also points out that the major task is being focused upon intellectual property rights, due to t hepr e s s u r eofCh i na ’ st r a di ngpa r t n e r s ,no t a b l yt heU. S.a ndt heEU.The i nc r e a s i ngi n t e r na t i on a lt r a der e l a t e ddi s pu t e s ,f o l l owi ngChi na ’ sWTOe nt r y , have significantly reshaped the composition of case genre in Chinese courts. But with regard to the independence and impartiality, as these opinions seem to better reflect the everyday practices of Chinese courts, it is questionable how much progress has been actually made so far. 2.

Legislative Interpretation and Judicial Interpretation

The Constitution assigns the competence to interpret the national law as we l la st h ec on s t i t u t i oni t s e l ft ot h ePe op l e ’ sNa t i on a lCong r e s swhe r e a st h e Or gan i cLaw o fPe o pl e ’ sCo ur t sauthorizes the Supreme People ’ sCou r tt o give judicial interpretation on questions concerning specific application of laws and decrees in judicial proceedings for practical reasons. As prescribed, c ou r t s ,s p e c i f i c a l l yt heSup r e mePe o pl e ’ sCour t ,c a no nl yi nt e r pr e tl a wsa nd th decrees in judicial proceedings. On June 10, 1981, in the 19 Meeting of the St a nd i ngCommi t t e eo ft heFi f t hNa t i ona lPe op l e ’ sCo ng r e s s ,ar e s o l ut i ona s to improve the interpretation of laws and decrees had been adopted. Even 140. Fafa Nr. 1 (Jan. 11, 2007), http://www.chinacourt.org/flwk/show1.php?file_id=115565 (last visited June 9, 2007).


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though the 1982 constitution was not revised yet at that point, the limitation of the competence of judicial interpretation has remained the same, as the prescription with regard to the competence to interpret the constitution and national laws was not amended in the 1982 constitution. Given the necessity to provide more legislation and better interpretation of the law in order to improve the socialist legal system, it was decided, in that resolution, that: (a) In cases where the limits of articles of laws and decrees need to be further defined or additional stipulations need to be made, the Standing Commi t t e eo ft heNa t i ona lPe opl e ’ sCong r e s ss h a l lp r o v i dei n t e r pr e t a t i onso r make stipulations by means of decrees. (b) Interpretation of questions involving the specific application of laws and decr e e si nc ou r tt r i a l ss ha l lb epr ov i d e dbyt heSupr e mePe opl e ’ sCour t . Interpretation of questions involving the specific application of laws and decrees in the procuratorial work of the procuratorates shall be provided by t heSupr e mePe opl e ’ sPr o c ur a t or a t e . If the interpretations provided by the Supr e mePe op l e ’ sCour ta ndt heSupr e mePe op l e ’ sPr o c ur a t o r a t ea r ea t variance with each other in principle, they shall be submitted to the Standing c ommi t t e eo ft he Na t i o na l Pe opl e ’ s Cong r e s sf or i n t e r p r e t a t i on or decision.141 To bes ur e ,onec a n no tde c i ph e ra ny c l e a rl i nebe t we e n“ f ur t he r de f i ni t i o n, ”“ a ddi t i ona ls t i p ul a t i on ”a nd“ t h es pe c i f i ca pp l i c a t i onofl a wsa n d de c r e e s . ”Asp r e s c r i be di nt hes e c ond p a r a g r a ph oft hi sr e s ol u t i on,t h e Pe opl e ’ sSup r e meCour tc a nonly give the judicial interpretations when the specific application of laws and decrees in court trials is needed. In other wor ds ,o nl ywhe nt he s et woc ond i t i on s ,n a me l y ,“ t h es pe c i f i ca ppl i c a t i ono f l a wsa n d de c r e e s ”a nd “ i nc our tt r i a l s , ”a r es a t i s f i e dc a nt hePe op l e ’ s Supreme Court hand down judicial interpretations. However, it seems not to bet h ec a s e .Somel i t e r a t u r ee v e na r g ue st ha tt hePe o pl e ’ sSu pr e meCou r tha s continuously gone beyond its limits since the Standing Committee has hardly made interpretations except the exceptional Hong Kong Basic Law cases.142 141. An unofficial English version can be downloaded at http://www.novexcn.com/ interp_of_law.html (last visited July 14, 2005). The resolution covers four paragraphs. The third paragraph deals with those interpretations which fall beyond the scope of judicial and procuratorial affairs while the forth paragraph deals with the interpretation of local regulations. 142. LIU, supra note 129, at 59-62. Further initiatives have been taken to clarify the allocation of jurisdiction and strengthen legislative interpretation in Law on Legislation, and Working Procedures Governing Notification and Review of Administrative Regulations, Regional Laws, Autonomous Decrees and Special Decrees, Regulations of Special Economic Zones and Working Procedures Governing Notification and Review of Judicial Interpretations.

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Doubts may also arise with regard to how and when the Standing Committee will hand down its legislative interpretation, and its potential threats to particular cases in trail proceedings. As previously noted, the European Court of Human Rights clearly laid down, in Stran Greek Refineries and Stratis Andreadis v. Greece, that the legislative intervention in que s t i on wa si ns uc h ama nne rt ha twa s“ d e c i s i v et oe ns u r et ha tt h e imminent outcome of proceedings in which it was a party was favourable to 143 i t ” ha di n f r i ng e dt h ea p p l i c a nt ’ sr i g htoff a i rt r i a lbya ni n de pe nd e n ta n d impartial tribunal. This holding is of great relevance here. First, the most telling part of this holding is that legislature is prohibited from interfering the judicial proceeding by means of legislative intervention so as to ensure a particular result of the proceedings. This holding should not be limited to cases to which the State is a party. Nevertheless, if it is the case, the infringement of the right to fair trial by independent and impartial tribunals is even more manifest. The argument the Greek government took may also bee mpl oy e dbyChi ne s ePe opl e ’ sCong r e s sa ndi t sSt a ndi ngCommi t t e e . The Pe opl e ’ sCong r e s s ,t h r oug hwhi c hthe people exercise state power, is the source of all powers, and its competence to authoritatively interpret the constitution and laws are explicitly recognized by the Constitution. However, as made clearly by the Court, this argument is not valid. It should also be noted that the WTO obligation to provide an independent and impartial judicial review is an international obligation, which China can not justify its derogation on the ground of its constitutional system. This international obligation does not only bind its executive powers, but also its legislature and judiciary. 3.

Adjudicative Committee

One of the important features of Chinese judicial system is the existence of adjudicative committee,144 of which the legal basis is founded on the authorization of Or ga ni c Law ofPe opl e ’ s Cou r t s . The main task of 143. Stran Greek Refineries and Stratis Andreadis v. Greece, para. 50. 144. Views among Chinese scholarship on the abolishment of adjudicative committees are also diverse, sometimes to the opposite. A stipulating debate between Suli Zhu and Weifang He reflects best this divergence. See Weifang He, Two Problems of the Administration of Justice in China, 6 CHINA SOCIAL SCIENCE 117 (1997); Weifang He, Some Comments on the Adjudicative Committees, 1 BEIJING UNI. L. REV. 365 (2002); Suli Zhu, Examination and Reflection on the Adjudicative Committee in Chinese Local Courts, 1 BEIJING UNI. L. REV. 320 (1998). In the meantime, Supreme People’ s Court is proposing a reform for adjudicative committees in Chinese judicial systems, available at http://www.nanfangdaily.com.cn/zm/20071115/xw/200711150013.asp (last visited Nov. 29, 2007).


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a d j ud i c a t i v ec ommi t t e ei st o“ s um upj udi c i a le x p e r i e nc ea ndt od i s c us s 145 i mpor t a n to rdi f f i c ul tc a s e sa ndo t he ri s s u e sr e l a t e dt ot hej ud i c i a lwor k . ” The president of the court or the presiding judge may refer a particular case (namely important or difficult cases) to adjudicative committee when necessary. The adjudicative committee would discuss and decide the case based on a summary presentation by the presiding judge in that case as well as any documents presented, and the collegial panel should carry out the decision of the adjudicative committee.146 Such practices deviate from international standards in relation to judicial independence, in particular individual independence. As noted above, an individual judge, when adjudicating a case should decide it on the basis of f a c t sa n di na c c o r da n c eo ft hel a w.I tmu s tbet hej udg e ’ sowne x a mi na t i ono f facts and interpretation of laws. These practices bring into improper interferences and undue influences of the president or vice-president of the courts, or other judges not hearing this case. These interferences and influences are improper and undue in the sense that there is no space for them in the decision-making process of an individual judge. It does not matter whether decisions made by adjudicative committee are more “ c or r e c t ”o rno t ,a st h ee s s e nc eo ft hej udi c i a lf unc t i oni st od e c i deac a s e ba s e do none ’ sowna s s e s s me ntoft hef a c t sa swe l la sr e a di ngoft hel a w, instead of someone else. Besides, as the European Court of Human Rights has repeatedly pointed out, the independence of tribunals should be sufficient to exclude any legitimate doubts. Even appearance is of relevance. It is difficult, if not impossible to exclude legitimate doubts of litigants when cases are not directly and exclusively decided by judges sitting before them, but behind the courtroom instead, where even an opportunity to be heard is notp r ov i de d.I nt hi sc a s e ,t hel i t i g a n t s ’dou b t sa bou tt hei nde pe nde n c ema y be objectively justified. It should also be pointed out that the objective and purpose to include t he“ i nd e pe nd e ntj ud i c i a lr e v i e w”i nCh i na ’ sAc c e s s i onPr o t oc o li st obe t t e r protect the rights and interests of individual economic actors through the prompt review of relevant administrative actions by independent and impartial tribunals. It was expected that this obligation might contribute to judicial independence in China. However, it seems Chinese judiciary is not going to the right, if not opposite, direction. This can be clearly illustrated by t het woj ud i c i a li n t e r pr e t a t i oni s s ue dbyt h ePe o pl e ’ sSu pr e meCour ti n 145. Organic La wo fPe o p l e ’ sCo u r to ft h ePe o p l e ’ sRe pu b l i co fCh i n a , Article 11. 146. RONALD C. BROWN, UNDERSTANDING CHINESE COURTS AND LEGAL PROCESS: LAW WITH CHINESE CHARACTERISTICS 76-77 (Kluwer Law International 1997).

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relation to the protection of trade-related intellectual property rights. The second judicial interpretation, due to the political pressure of the U.S, is aimed at lowering down again the thresholds of the determination of “ s e r i ou s ”o r“ e s pe c i a l l ys e r i ou s , ”i nt e r msofi l l e g a lc opi e s ,r e f e r r e dt oi n Article 217 of Criminal Law. Judiciary is seen as an instrument to meet pol i c yg oa l s ,a ndt hePe op l e ’ sSupr e meCour tdominates the competence of judicial interpretation. Lower courts should thus abide by the judicial i nt e r p r e t a t i oni s s uebyt hePe opl e ’ sSupr e meCour t .Howe v e r ,a st hi spa p e r emphatically argues, a centralized judicial interpretation dominated by the Peopl e ’ sSup r e meCour twi l lno tbr i nga boutr e a li n de pe nde n ta ndi mpa r t i a l judges in China. Lower judges should be encouraged and obliged to apply the law in accordance with their own reading and interpretation. Not those of t hePe opl e ’ sSupr e meCour t . 4.

Case Guidance System

Onema j orc ompe t e nc eo fSupr e mePe opl e ’ sCou r tc onf e r r e dbyt he Constitution is to supervise lower courts.147 The adjudicative committee of Supr e mePe op l e ’ sCou r tus e st hec ompe t e n c eo f“ s u mmi ng up j udi c i a l experience and of discussing important or difficult cases and other issues relating to the judicial work of judicial interpretation of national laws, by i s s u i ngav a r i e t yof“ de c i s i o ns , ”i nc l ud i ngopi n i on s ,i n s t r u c t i on s ,a ndof f i c i a l replies to lower courts. Those decisions can be in the forms official opinions (dafu), letters (fuhan or han), notices (tongzhi or tonggao), explanations (jieda or jieshi), official answers (pifu or dafu), or conference summaries (jiyao). This practice of seeking decisions replies, opinions or instructions fr o m Supr e me Pe op l e ’ s Cour ti sr e f e r r e da s“ c a s eg ui d a n c es y s t e m (qingshi) . ” Th i s“ c a s eg ui da n c es y s t e m” s ha r e st he s a me we a k ne s swi t ht he adjudicative committee. After seeking official relies from the Supreme Pe opl e ’ sCour t ,l owe rc ou r t sa r eob l i g a t e dt odecide the case according to these official replies. In other words, those who decide the cases are not who sitting in front of the litigants, but those in Beijing. This system prevents from the litigants from presenting evidence and arguments to those judges who really decide their case, let along persuading them. Litigants have no idea about how these decisions are made, and are not sure whether those judges referred to emphasize on the same focus as them. The answer as to the independence of those judges sitting before litigants is apparently not, as 147. Constitution of People’ s Republic of China, Article 127(2).


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they are subordinate to their superiors. They should decide the case a c c o r di ng t ot h e Sup r e me Pe o pl e Cour t ’ sa s s e s s me nt s of f a c t sa n d interpretation of laws, instead of their own. As is made clear above, the individual independence of every single judge is of no less, if not more, importance than the institutional independence. The image of judiciary can not be mapped as a whole if there are no numerous tiny pieces of every single judge. One should not always perceive the judiciary collectively as an entire entity. Various independents judges are the foundation of an independent judiciary. This view can be also supported by those international instruments referred to above, which place the emphasis not only on the institutional independence but also on the individual independence. V. CONCLUDING REMARK Th i spa p e re x a mi ne st hes c opea ndna t ur eofChi n a ’ sWTOobl i g a t i ont o provide an independent judicial review. It first presents the trend in the WTO to strengthen domestic judicial review, and then analyzes this obligation e mbodi e di nCh i na ’ sAc c e s s i onPr o t oc o l .Se c t i o n2 ( D)ofChi n a ’ sAc c e s s i on Pr ot o c oll a y sdownmor es t r i ng e ntr e qui r e me nt si nr e l a t i o nt ot he“ p r ompt r e v i e w”o fa dmi ni s t r a t i v ea c t i ons .Thes c opei salso wider than existent provisions in the WTO Agreements. This paper then examines the existent WTO j ur i s p r ude nc ei nor d e rt oc l a r i f yt hec r i t e r i ao f“ i nd e pe n de nc e ”a nd “ i mp a r t i a l i t y ” ,a ndf i n dst h a tnos uf f i c i e nta ndc l e a rg ui da nc ei sa v a i l a bl e . As informed by Article 3.2 of Dispute Settlement Understanding, it is thus feasible and indispensable to examine international standards as well as jurisprudence concerned. This paper then discusses various global and regional standards in relation of independence and impartiality, and also explores the jurisprudence laid down by the European Court of Human Rights. Based on these standards and jurisprudence, laid down by on the WTO and other international legal instruments, and international tribunals, this paper then presents the efforts and progress that China has so far made f ort hei mpl e me nt a t i ono ft hi s“ i nd e pe nd e ntj ud i c i a lr e v i e w”obl i g a t i on,a nd then examines the compatibility with standards outlined in previous sections. It finds that the administration of justice, the practices of legislative interpretation, adjudicative case guidance system can not pass the scrutiny of the Panel/Appellate Body, if a case is brought into the WTO Dispute Settlement Mechanism. Besides, as doubts about the impartiality of the Chinese member of the Appellate Body was indicated by Taiwan during the selection process as well as the Dispute Settlement Body meeting, it would beofg r e a ta s p i r a t i ont os e ehow aWTO “ j u dg e ”pe r c e i v et her o l eofa

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“ j udg e ”i nt heWTOa ndi nChi ne s edomestic courts. In this concluding remark, it is also feasible to point out some fundamental issues, which are not dealt with in this paper. Due to the approach taken in this paper, it does not cover issues of the separation of powers, and it does not touch upon in great detail the relationship between Chi ne s ec ou r t sa ndPe o pl e ’ sCong r e s sa ndCh i ne s eCo mmuni s tPa r t y .I fone wishes to explore how to establish an independent judicial review, which this paper does not opt to, it would be feasible and essential to examine the role of Chinese Communist Party, in particular Legal-Political Committee and Disciplining Committee, in influencing judicial policy and judicial decision-making. It is also important to examine in what aspect Chinese courts are responsible to Pe opl e ’ sCo ng r e s s ,a ndi n wha twa yPe op l e ’ s Congress supervises Chinese courts at the corresponding level.


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REFERENCES Bhattasali, D. et al. (2004). Impacts and Policy Implications of WTO Accession for China. In D. Bhattasali et al. (Eds.), China and the WTO: Accession, Policy Reform, and Poverty Reduction Strategies (p. 1-18). A World Bank Publication. Brown, R. C. (1997). Understanding Chinese Courts and Legal Process: Law with Chinese Characteristics. Kluwer Law International. Burbank, S. B. & Friedman, B. (Eds.). (2002). Judicial Independence at the Crossroads: An Interdisciplinary Approach. Sage Publication, Inc. Canivet, G. et al. (Eds.). (2006). Independence, Accountability, and the Judiciary. Biicl. Cao, J. (2002). China and the Rule of Law. Temple International and Comparative Law Journal, 16, 379. He, W. (1997). Two Problems of the Administration of Justice in China. China Social Science, 6, 117. He, W. (2002). Some Comments on the Adjudicative Committees. Beijing University Law Review (in Chinese), 1, 365. Huang, D. (2006). Legal Interpretation of Paragraph 242 of the Report of the Working Party on the Accession of China under the World Trade Organization Legal Framework. Journal of World Trade, 40, 137. Huang, T. W. (2002). Ta i wa n’ s Pr o t oc o l16 Special Safeguard and Anti-dumping Enforcement on Imports from China. Journal of World Trade, 41, 371. Hung, V. M.( 200 4) .Ch i n a ’ sWTO Commi t me ntonI nde pe nde ntJ ud i c i a l Review: Impact on Legal and Political Reform. American Journal of Comparative Law, 52, 120-125. Jensen, E. G. & Helle, T. C. (Eds.). (2003). Beyond Common Knowledge: Empirical Approaches to the Rule of Law. Stanford Law and Politics. Lee, J. (2007). Socialist Rule of Law with Chinese Characteristics. Issues & Studies, 43, 115. Liebman, B. L. (2007). Chi na ’ s Cou r t s :Re s t r i c t e d Re f o r m. Columbia Journal of Asian Law, 21, 1. Liu, N. (1989). An Ignored Source of Chinese Law: the Gazette of Supreme Pe opl e ’ sCo ur t . Connecticut Journal of International Law, 5, 271.

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Liu, N. (1991). Legal Precedents with Chinese Characteristics: Published Ca s e si nt heGa z e t t eo fSupr e mePe opl e ’ sCou r t . Journal of Chinese Law, 5, 107. Liu, N. (1997). Opinions of the Supreme People's Court: Judicial Interpretation in China. Sweet & Maxwell Asia; Sweet & Maxwell. Open Society Institute (2001). Monitoring the EU Accession Process: Judicial Independence. Central European University Press. Petersmann, E.-U. (1991). Strengthening the Domestic Legal Framework of the GATT Multilateral Trade System: Possibilities and Problems of Making GATT Rules Effective in Domestic Legal System. In E.-U. Petersmann & M. Hilf (Eds.) The New GATT Round of Multilateral Trade Negotiations: legal and economic problems. Springer. Petersmann, E.-U. (2006). Multilevel Trade Governance in the WTO Requires Multilevel Constitutionalism. In C. Joerges & E.-U. Petersmann (Eds.), Constitutionalism, Multilevel Trade Governance and Social Regulation (pp. 5-58). Hart Publishing. Petersmann, E.-U. (Forthcoming). Dispute Prevention, Dispute Settlement and Justice in International Economic Law. Qin, J. Y. (2003). “ WTO-p l us ”Ob l i g a t i onsa ndThe i rI mpl i c a t i on sf ort he World Trade Organization Legal System. Journal of World Trade, 37, 495-496. Sajo, A. (Ed.). (2004). Judicial Integrity. Brill Academic Publisers. Winkler, A. & Zagel, J. (1992). The Independence of Judges. Mercer Law Review, 46, 795-834. Zhu, S. (1998). Examination and Reflection on the Adjudicative Committee in Chinese Local Courts. Beijing University Law Review, 1, 320. Zou, K. (2006). China’ sLe galRe f or m. Martinus Nijhoff Publishers.