Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Monday, July 31, 2006

MOFCOM regulation on antidumping proceedings (2)

This is an addendum to my earlier posting on this subject.

As Yan Luo's comment to that post points out, I overlooked the fact that the reach of this regulation extends beyond Chinese lawyers to foreign lawyers, and very possibly the latter are the intended target. Yan Luo also wonders if this regulation is a GATS violation. My answer to all such WTO-related questions is: take a look at the relevant agreement. Very often there is no need to wonder because the answer can easily be found.

In this case I will ignore my own advice and speculate. On the one hand, the regulation could be viewed as an interference with the cross-border supply of legal services that constitutes a nullification and impairment of the justified expectations of foreign service providers. On the other hand, however, it is WTO-legal in a very important sense: it does not discriminate between Chinese and foreign service suppliers.

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Thanks for the comments, Prof Clarke. I suppose the reason I said I wasn’t sure whether there is a GATS violation is that this regulation does not de jury discriminate a foreign lawyer or foreign law firm. But there is possibility that it is de facto discriminating against certain foreign lawyers as few Chinese lawyer or law firm are involved in the process of filing a petition on behalf of the EU or the US industries. Normally this is done by “local” firms. This regulation might be vulnerable if it has been accused as de facto discriminating against those foreign law firms by prohibiting them representing Chinese firms in AD investigations. This of course depends on whether there is sufficient evidence to support the allegation. That is the bit I was “wondering”.

Posted by: Yan Luo | Aug 2, 2006 4:54:12 AM

Excellent point!

Posted by: Don Clarke | Aug 2, 2006 7:39:44 AM

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