In WTO (WTO) issued a report of the expert group on the export of rare earth Chinese dispute about a month later, the Appellate Body in April Chinese respondent 25 to WTO (Appellate Body) to submit the documents.

According to the WTO Appellate Body last Friday published documents, the expert group report more than 170 paragraphs to the contrary, that report misinterpreted WTO rules and China WTO documents, and demands the appellate body rejected the Chinese &ldquo expert group report; export quota & rdquo; illegal ruling.

China announced an appeal in April 17th. Earlier, one of the rare earth case prosecution USA in 8 April, the Appellate Body appeal; the expert group in the ruling process on the evidence of the expressed dissatisfaction with.

This marks the concern of the Chinese rare earth export dispute case dispute settlement procedures in appeal procedure. Appeal only from legal interpretation angle put forward different views, not re examination, or open a new topic.

In accordance with the rules, the Appellate Body shall make a reply within 60 days, not more than 90 days time, support, modified or rejected expert group report. After that, the dispute settlement body must be accepted within 30 days, or reject the consensus based on the outcome of an appeal.

At present, the rare earth case of the other two prosecution the European Union and Japan have not followed USA appeal.

WTO released report of the expert group on Chinese rare case in March 26th, to support the most litigation of America, Japan, three party requirements, also rejected part of the prosecution claims.

Think Chinese including 17 kinds of rare earth dispute settlement mechanism of the report of the expert group (rare earths) raw materials, tungsten (tungsten) and molybdenum (molybdenum) and imposed export restrictions violation.

These three kinds of export restrictions are: raw materials of rare earth on the various forms of export tariffs, export volume of a certain time to impose quotas, as well as the raw material export enterprises access to certain restrictions.

The final report are explained, China WTO documents promises to cancel these export tariffs, and these rare earth raw materials have not been included in Annex excluded; export quota settings for the target of industrial policy, rather than the “ ” objective; at the same time, the enterprises to export power limits in violation of WTO rules.

The expert group report was published, in Europe, America, parties to make a statement. America White House Trade Representative Office (USTR) believes that the U.S. won.

Chinese Ministry of Commerce Department of treaty and law day to say, expert group recognized China take on rare earth, tungsten, molybdenum comprehensive resources and environmental protection measures, rejected the EU enterprises export quotas for export performance of Mo “ ” requirements that discriminate against foreign companies, China appreciates.

The Commerce Department said, the panel ruled the Chinese product export tariffs, quotas and export quota allocation and management measures are not in conformity with the relevant WTO rules and China joined the WTO commitments, China regrets.

China believes that, in the increasingly serious resources and environmental pressures, Chinese government in recent years to strengthen and improve the high pollution, high energy consumption, resource consumption of products integrated management, “ these management measures in line with the goal of sustainable development WTO advocated by ”.

Makiyama Hiroshi, director of the ECIPE at trade issues (Hosuk Lee-Makiyama) on the twenty-first Century economic report reporter said: “ China's successful appeal the possibility is very small. ” Makiyama Hiroshi said, the central government to solve the environmental problems through the trade restriction measures, is not consistent with the rules of WTO.

According to industry organizations China Rare Earth Society website on April 24th to the Reuters data, rare earth exports to Japan in March American and Chinese have growth, which increased 10.85% to beauty, to growing 38.21%.

Data shows, in France, Spain, Germany and Holland and other EU countries in rare earth exports also rose significantly, the United Kingdom, Austria and other countries dropped.


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Chinese long-term monopoly of global production of rare earths. However, in recent years, related to the dispute with Beijing has a new trend: Western companies turn to alternatives and other areas, rare earth prices decline.

For the global high-tech industry, rare earth is a kind of precious material. Computer chip, motor, wind power generation device or Internet mobile phone, all have their shadows. However, over the years, the special material, the ongoing fierce controversy. 90% of the rare earth in the China production. However, the country's export restrictions on rare earth, especially including Germany, Europe and the United States, Japan enterprises have been seriously affected. Although western countries have a stage victory, in trade disputes arising from — &mdash WTO arbitration court ruled last month Chinese limit of rare earth export violation of free trade rules, but the problem is far from; thereby addressed.

Headquarters is located in the study Chinese Mukato Institute in Berlin (MERICS) expert Verbeek (JostWü bbeke) think, “ influence WTO award the very small ”. Because, ruling would not take effect immediately. China also may appeal. Verbeek in an interview with the German news agency that forced the cancellation of export restrictions, in front, Beijing has nearly a year transition period; and whether China will implement the arbitration decision, is still uncertain.

China own industry needs a lot of rare earth. At the same time, the Beijing government is not willing to excessive consumption of domestic rare earth resources, avoid harmful mining and processing of excessive pollution of the environment. Therefore, rare earth mining loss. Verbeek pointed out, it is not clear, Chinese will continue to supply the world market as well as to what extent.

Prices fell

Nevertheless, the international market, prices have fallen. Many enterprises are now looking for the high technology of metal ore alternatives. Verbeek pointed out, foreign consumers increasingly use alternative raw materials, and reduces the application of rare earth. In addition, the world economic crisis also makes the demand to fall. Also, although Beijing's central government restrictions on many small, local producers are still regardless of the provisions, to continue production, and thus lower prices. Verbeek thinks, Beijing tried to make the rare earth prices remain high long-term plan must have failed. Although, China holds the world's largest rare earth reserves, but other America and Russia and other countries also have huge storage, fully able to meet domestic demand. In addition, Japan, Europe, America and other countries and regions of high-end enterprise to find alternatives to rare earths for certain products, and more efficient recycling of rare earth materials. Of course, this strategy also has the limit, at least, so far, rare earth is still indispensable in many technical fields.

Forces

On the other hand, as prices fall, change relation between power. In 2011, certain kinds of rare earth prices reached the highest point, which makes the difficult area exploitation of rare earth has become attractive. For example, discontinued 8 years later, USA California “ ” ore pass (MountainPass) at the end of 2010 production; in Malaysia, last year has started processing from Australian rare earth.

However, the German Federal Bureau of Geology and raw materials (BGR) recently pointed out, today, in California and Malaysia, have no one to talk about was exciting “ expand the production capacity of ” this prospect.

Mercator China Research Institute expert Verbeek stressed, has its historical reasons China dominant position in the field of rare earth. In very long period of time, Beijing to the low price of this high technology of metal ore mining, resulting in the rest of the world mining unable to map. While the industrial countries and long-term underestimate the strategic value of rare earth. According to his statement is: “ industrial country consumers long-term peace of mind lying on the China prices. ”

Suddenly 3 years ago rare earth prices rise, stimulated the mass in search of a rare earth ore international. According to the Federal Bureau of geological materials and digital, has discovered more than 440 rare earth ore. The agency said in a report, new mines, many potential minerals and beyond all expectations of many alternatives to rare earths prices fell.

But, even so, China rare-earth monopoly has not shaken. In particular, the heavy rare earth called is still only Chinese mining, and heavy rare earth is crucial for electric mobility, the wind power generation device and energy saving lighting has significance. That the Federal Bureau of Geology and raw materials, the heavy rare earth supply is still under threat.


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The state of tungsten and rare earth products quality supervision and inspection center through the China National Accreditation (CNAS) expert review group supervisory review and expansion of the on-site assessment. The expert review group members on the basis of CNAS-CL01:2006 "the competence of testing and Calibration Laboratory Accreditation Criteria" and the relevant rules for the accreditation documents, by listening to the report, review the quality management system documentation, technical archives, ability verification records and on-site questions such as, site assessment center equipment, environmental conditions, the operation of the system, field test, personnel construction the situation.

16 new detection item this evaluation, involves 18 standards, including gadolinium iron alloy, cobalt concentrate and thulium ytterbium lutetium purity, the center has reached international recognition in the ability level. This review project, the task is heavy, is one of the centers of mass appraisal activities, by the central leadership attaches attention. Close coordination, the functional departments collaboration, in addition, pre assessment work to prepare fully, making the assessment work carried out smoothly, accuracy, guarantee the recognition results of efficiency.


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WTO panel report released U.S., EU , Japan and other members of the party complained Chinese exports of rare earth tungsten and molybdenum - Measures ( referred to as " rare case" ) . The report said that the Chinese government adopted a series of measures to limit the export of these products in violation of WTO rules should be amended to conform to WTO rules . In this regard, the Chinese side expressed regret and has recently decided to appeal the panel report in relation to the WTO Appellate Body .

WTO Panel sure I protect the environment and resources, but I recognized export restrictions

In recent years , Chinese government for the purpose of protecting the environment and exhaustible domestic resources have been put forward a series of measures to limit the export of raw materials such as rare earth , which caused the United States, Europe , and Japan , as rare as a strategic resource and long tradition imported from China "big " their dissatisfaction. But in fact, rare earth resources in China have not rich , but it has long been the world's largest rare earth export country .

With the rapid development of high-tech industries , global demand and rapid growth in the consumption of rare earths . Rare earth resources are non-renewable mineral resources , due to the large number of years , disorderly exploitation , China 's rare earth resources are on the verge of exhaustion . On the other hand , rare earth production, processing a tremendous impact on the ecological environment , environmental pollution caused by its mining more serious . Seen, to some extent, limit exports of rare earths will undoubtedly help to curb the momentum of China 's rare earth mining , consistent with the policy goals of sustainable development.

Many people do not understand , is this a very proper measures are WTO panel did not get recognized , but the judgment against the Chinese ? Some people ask, Does the Chinese government must sacrifice their own resources and the environment to maintain a large number of exports to developed countries do ? For China, this is fair?

In fact , just read the panel report , it is not difficult to find , WTO Expert Group did not identify the Chinese government restrictions on the export of raw materials and rare earth purpose is wrong, not only that, the expert group on the Chinese side to protect exhaustible resources and the environment in mind to be sure that this is not only consistent with the objectives of sustainable development pursued by the WTO , but also China has sovereign rights to manage natural resources. Unfortunately , the Group believes that some restrictions on the export of measures taken by the Chinese side did not achieve the above objective , for some reasonable evidence and views put forward by China were not admissible . Especially in the export tax measures , despite an expert group members supported the Chinese point of view , but in the end the Group of Experts still believe that China is not entitled to invoke GATT Article 20 , " General Exceptions " clause of China 's export tax take defense .

Appeal to the WTO Appellate Body : Hope and anxiety coexist

On appeal , we should carefully analyze the report of the Group , on this basis, the full use of WTO rules and construed in accordance with the law argue utmost to strive for the success of the appeal .

In accordance with WTO rules , the Appellate Body only appeal to review the legal issues of the case , therefore , the ability to use the rule of law , the ability to explain the success of the appeal is crucial . Now it seems that the final result for the appeal , the hopes and fears coexist.

On the one hand , the export tax, an expert group members as well as Russia , Brazil , Argentina and other members of the party 's support for China -related positions so that we see the hope . In the case hearing , the experts believe that , starting from the integrity and overall perspective of interpretation of the WTO Agreement , together with the Chinese side should enjoy the " general exceptions " rights conferred by Article 20 of GATT on the export tax issue with the WTO members , the provision allows members to meet the statutory requirements under the premise of protecting the environment and exhaustible resources , the protection of human , animal and plant life and health and violate WTO rules.

Raw materials in China WTO has ruled in the case , WTO Experts Group based only on China ' s Protocol ' exit tax provisions Section 11.3 , did not identify the Chinese have no right to invoke GATT1994 advocate on GATT Article 20 on the export tax question " in general exceptions " rights conferred by this new member of the WTO , such as China is obviously unfair . To this end , the Chinese government and international law experts , scholars have been using a variety of occasions , actively using the theory of international law and WTO rules argue. The win support from an expert as well as a number of important WTO members , and indeed made ​​important progress .

But one can imagine , on this issue , the appeals process between China and the United States, Europe, Japan and the inevitably there will be a battle , we must be fully prepared for all aspects of the fight to change the position before the WTO Appellate Body held , China is in favor of the right to invoke GATT Article 20 , " general Exceptions " in terms of export taxes .

In addition, the Group of Experts to ignore certain evidence submitted by the Chinese as well as efforts to protect the environment and exhaustible resources, especially that the Chinese government take to limit the number of rare earth and other views licenses and other export restrictions and WTO rules we should further explain and defend to the Appellate Body .

Of course , from a previous judicial practice WTO Appellate Body ruling to overturn the possibility of the Group of Experts was not great, which is why we worry for the outcome of the appeal . But even so, should not be shaken, even give up fighting for the rights of determination and confidence , because , after all, is an important opportunity to appeal to reiterate our views and positions .

We should also re-examine the execution and implementation of policy measures

Meanwhile , at home, our government departments and local should urgently re-examine whether there are areas for improvement restrict the export of rare earth and other raw materials and concrete implementation of policies and measures to implement the process .

For example , in accordance with the requirements of the WTO rules and the " principle of good faith " in international law , at the same time should also restrict the export restrictions on domestic production and consumption , export restrictions , if on the one hand , while on the other hand the domestic production and consumption is increasing , this will form the international trade " arbitrary, disguised discrimination ," which is not allowed by WTO rules .

In particular it should be noted that, after the central government has formulated policies , some local governments and enterprises only their own petty , openly or covertly continuing large number of mining rare earths , the so-called "policies , under the measures ." This is not only with the national environmental protection efforts and contrary to the relevant decision-making , but also invited heavy criticism , be evidence of another attack China 's rare earth policy.

In addition, to implement the protection of the environment and exhaustible resources policy, between the central government departments, relevant policies and measures between central and local government should further be coordinated , absolutely avoid fragmented, inconsistent rulemaking situation . This is the uniform implementation of WTO agreements and the principle of transparency requires members to assume the obligations in this regard , we have a lot of work to do .

In short, the rare case gives us a lot of inspiration and reflection , hope and worry exist , but for our future development of environmental policy and legislation to promote scientific, fine, unification is concerned , is not a bad thing.


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