The posts by Simon and Inu on the US notifications proposal help to bring to light the important but often ignored issue of notification in WTO agreements. As I've just finished an article on the implementation of the WTO transparency obligation by China, I'd like to provide some observations based on the Chinese experience:
- In the day-to-day implementation of the notification obligation, you need not only the trade ministry but also the cooperation of many other government agencies. Often, the trade ministry does a good job of notifying matters under its purview, while the other ministries tend to be lacking in their notifications for various reasons. In many cases, even the trade ministry might not be aware of trade-related measures by other agencies, let alone notifying them. Thus, having a stricter notification requirement could give the trade ministry the leverage to gather information from the other agencies, but it could also hurt its relationship with the other agencies;
- Another reason for the lack of notifications could be due to the low priority attached to such issues by officials. For example, while officials in the trade-related ministries such as MOFCOM have higher levels of sensitivities of WTO obligations, they are often too busy to focus on the transparency obligations. For them, the more important work is often to ensure the consistency with the substantive obligations of the WTO. Thus, the implementation of procedural obligations such as transparency is often pushed to bottom of the to-do list. Moreover, as obligations such as translations and TRM only benefit foreigners, they are often side-lined by the officials who have to give priorities to serving their domestic constituencies.
- The US insistence on concretizing the timeline for notifications could well be a reflection of its frustrations over China's alleged failure to meet its notification requirements under the Transitional Review Mechanism, as I noted in my article,
"After the timing issue was resolved, another battle was fought over the timetable for the submission of the information required in the review. The Accession Protocol only specifies the timetable for the review by the General Council by noting, in Annex 1B, that China “shall submit any information and the documentation relating to the review no later than 30 days prior to the date of the review.” As to the reviews by the subsidiary bodies, there is no such explicit requirement and China is only required to “provide relevant information, including information specified in Annex 1A, to each subsidiary body in advance of the review.” The US again took an expansive interpretation by proposing the following: first, China should submit the relevant information set out in Annex 1A 90 days before the respective meetings; second, other Members shall submit their specific questions for China 60 days before the meeting; and three, China should submit its responses to Members' questions 30 days before the meeting. This proposal was again rejected by China, which insisted that no specific time-frame or procedure may be imposed as they go beyond the stipulated obligation under Section 18. In the end, China only submitted the relevant information, on average, three days before the scheduled meeting. Such late submission made it very hard for the other Members to react to China’s submissions.
4. One way of solving the notification problem could be outsourcing the translation work required for the notifications. This is what China did
"The MOFCOM has been outsourcing its work since Feb 2015, when the Department of WTO Affairs issued a call for tender for the translation of the documents used in China’s WTO notification and review process. In March 2015, two contractors won the bid, with the top choice being Zhonglun, a leading Chinese law firm.While the scope of this tender covers only the documents used in China’s WTO notification and review processes, there is no reason why the same approach could not be adopted for the translation obligation as well."
Interested readers can download the full paper here.
