China Guest Blogger Sought. Must Read AND Understand WTO Rulings.
Got an email today from a leading finance magazine asking me whether the World Trade Organization's (WTO) ruling today "against" China meant "piracy is now dead in China." I told him I would review it, figure out the answer to his question, then call him. WRONG.
I read a few news articles on the ruling and they all said pretty much the same thing. They said the US won on some items and China won on others. They then proceeded to quote someone from some film organization stating this was a huge victory for US film companies and that was pretty much it. So I went to the WTO site and read the "findings and conclusions." and understood pretty much none of it. There were so many cites to various WTO provisions that I realized to understand the ruling would probably take days (I am not kidding) of review and analysis. I briefly checked out the full decision, but that is 491 pages. Hell, if I am going to read 491 pages without billing for it, I am going to read An Evil Cradling, which has been sitting on my nightstand for months. So I gave him the name of a leading trade lawyer in DC and went back to work.
Turns out I am not alone. AsiaBizBlog had this to say about the ruling: "Beware: although written in what appears to be English, it is generally impervious to understanding by those with graduate school education. You may need to hire a specialist." China Hearsay punts on reviewing the ruling for now, but is promising us a full report tomorrow. I will be waiting.
Oh, here's pretty much what I told the reporter, along with the fact that it was not for attribution:
I have no idea. I was not able to figure out what the ruling actually was so I cannot really say what impact it is going to have. But here is what I can tell you. Every time a WTO ruling comes down between the US and China it seems like the overall decision is mixed. In other words, both sides won some part of it, and that seems to be the case here. But no matter what happens, the US always claims a total victory and China always claims a total victory and it seems that is happening again here. I really doubt that the people at the film organizations touting this as some incredibly favorable ruling truly understand its repercussions already. I think this case dealt with distribution of foreign media in China being limited and being required to go through the government. I do not think it dealt at all with copyright issues directly, but if it does allow greater distribution of foreign media in China (and I think it does), then it may reduce copyright violations somewhat in that there will be less need/incentive for illegal versions.
So is there anyone out there who has plowed through the decision and understands it? If so, I would love to hear from you. A guest post is waiting for you....
Comments (3)
Read through and enter the discussion by using the form at the endPeter - August 13, 2009 3:36 AM
Great post - I am glad it's not just me! I have read the findings and conclusions a few times today and understood less each time. I wonder if they make more sense in French?
It is an example of how easy it is to manipulate the media on complex issues. Journalists have no time to get a proper understanding of a ruling like this, the USTR and MPA put out press releases claiming victory and: hey presto - a wave of news articles applauding a US victory. The last US-China WTO case was also widely misreported.
Is piracy dead in China? Hilarious!
Cyndee - August 13, 2009 4:27 AM
Please check out my blog posting at www.tradelawyersblog.com. I do not undertake a full review and will likely write more on the subject. One important aspect of the WTO Panel report that makes it a MUST read for China lawyers is the very long and detailed analysis of China's joint venture laws. The WTO decision and the WTO Appellate Body Report (when it is written after an appeal, which is likely), will be a key resource of legal scholarship for China's joint venture laws, structured, pitfalls, etc. It is possible that other WTO cases will be brought where JV rules in China are restrictive.
Twofish - August 13, 2009 10:37 AM
One thing that makes trade law murky is that not only is the language impenetrable, but sometimes it seems to say something, but means something else. Article XI of GATT *seems* to be quite clear that:
No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party.
That seems to be pretty clear. Except it doesn't work that way and pretty much everyone agrees that it is a guideline rather than an absolute rule, and there are dozens of cases each with hundreds of pages explaining what that guideline means. No *doesn't* mean No when it comes to trade law.
Also you run into a situation where something says A, and then several hundred pages later, you end up with something that says "Notwithstanding what was said earlier"