China and the Long March to Global Trade: The Accession of China to the World Trade Organization

By Sylvia Ostry; Alan S. Alexandroff et al. | Go to book overview
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10

China's accession to the WTO

Legal system transparency and administrative reform

Sarah Biddulph

Introduction
The question of transparency of China's legal system is one of the significant issues of concern in determining China's accession to the WTO. The requirement for transparency contained in Article X of the 1947 GATT underpins all substantive areas of regulation. As Sylvia Ostry has said, “it is considered one of the basic rules governing the post war trading system as embodied in the General Agreement on Tariffs and Trade (GATT) and now the World Trade Organisation (WTO)” (Ostry 1998:1). These transparency requirements are replicated in paragraphs C and D of Part 1 of the draft protocol for China's accession to the WTO (the Draft Protocol). What do we mean when we talk about transparency? At a conference in Washington in March 1998, 1 Jonathon Fried set out the basic propositions particularly succinctly. 2 He asserted that there are three facets of transparency. They are that:
the laws and regulations governing trade are publicly available;
there is procedural fairness, that is, that the process of administrative decision making is principled, comparatively stable, and the basis for making a decision can be known;
there is an independent and impartial system for review of administrative decision making.

This chapter considers these three aspects of transparency. It examines the ways in which and the extent to which they are reflected in the Chinese legal system. It also evaluates the features of the Chinese legal system that impinge upon China's capacity to meet her WTO commitment of transparency in the legal system.

This chapter is concerned with both the regulatory framework currently in place and issues about law enforcement that significantly affect individual experience of the regulatory regime. In terms of the regulatory structures, this chapter focuses in particular on reforms to the framework for administrative decision making that have taken place primarily since the early 1990s. It argues that these reforms have gone very far towards instituting a structure that embodies the principles of transparency required under the Draft Protocol, though a number of significant barriers remain to the establishment of a system which is transparent.

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