Christian Tietje and Karsten Nowrot have posted a short policy paper discussing the legal issues surrounding the treatment of China as an NME. Here's an excerpt:
In light of these findings, it thus appears – at least from a theoretical legal perspective – in principle very well admissible that some other WTO members qualify China as a NME even after the date provided for in the second sentence of paragraph 15(d) of the accession protocol. However, three legal aspects are worth drawing attention to in this connection.
First, the second sentence of paragraph 15(d) incontrovertibly illustrates that such a qualification as an NME can no longer find its legal basis in China’s accession protocol after 11 December 2016.
Second, in light of the overarching systematic approach adopted by general WTO antidumping law, being from that date onwards the more or less exclusive legal regime applicable to China, it is – in the same way as all other WTO members – presumed to have acquired MES. Consequently, it might very well be argued that, at least for a so-called “logical” or “juridical” second, China has on 11 December 2016 to be regarded as having achieved MES erga omnes. Thus, if only in this limited sense, there is indeed a certain automatism involved in this regard.
Third, a subsequent – renewed – qualification of China as a NME by other WTO members, in order to be legally sustainable, has to find its basis in the general regime on WTO antidumping law as laid down in Art. VI of GATT 1994 and the WTO ADA. In light of the background observations as outlined in the previous section, this essentially requires that the WTO member in question has to argue and prove that the requirements stipulated in the second Ad Note to Art. VI:1 GATT 1994 are fulfilled with regard to economic conditions prevailing in China at the time when respective antidumping proceedings are initiated.
