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Working Paper 19-17: WTO'ing a Resolution to the China Subsidy

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Working Paper 19-17: WTO'ing a Resolution to the China Subsidy WORKING PAPER 19-17 WTO’ing a Resolution to the China Subsidy Problem Chad P. Bown and Jennifer A. Hillman October 2019 Abstract The United States, European Union, and Japan have begun a trilateral process to confront the Chinese economic model, including its use of industrial subsidies and deployment of state-owned enterprises. This paper seeks to identify the main areas of tension and to assess the legal-economic challenges to constructing new rules to address the underlying conflict. It begins by providing a brief history of subsidy disciplines in the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) predating any concerns introduced by China. It then describes contemporary economic problems with China’s approach to subsidies, their impact, and the apparent ineffectiveness of the WTO’s Agreement on Subsidies and Countervailing Measures (ASCM) to address them. Finally, it calls for increased efforts to measure and pinpoint the source of the problems—in a manner analogous to how the Organization for Economic Cooperation and Development (OECD) took on agricultural subsidies in the 1980s—before providing a legal-economic assessment of proposals for reforms to notifications, evidence, remedies, enforcement, and the definition of a subsidy. JEL Code: F13 Keywords: WTO, subsidy, state-owned enterprise, dispute settlement Chad P. Bown is the Reginald Jones Senior Fellow at the Peterson Institute for International Economics and Jennifer A. Hillman is senior fellow for trade and international political economy at the Council on Foreign Relations. Authors’ Note: A revised version of this paper is forthcoming in the Journal of International Economic Law. For helpful discussions and suggestions on earlier versions, we thank Kym Anderson, Simon Evenett, Joe Glauber, Bernard Hoekman, Tianlei Huang, Soumaya Keynes, Andrew Lang, Nicholas Lardy, Robert Lawrence, Will Martin, Petros Mavroidis, Douglas Nelson, Luca Rubini, Jeffrey Schott, and Anne van Aaken. Thanks to Eva Zhang and Shelton Fitch for research assistance as well as Melina Kolb and William Melancon for assistance with graphics. All remaining errors are our own. © Peterson Institute for International Economics. All rights reserved. This publication has been subjected to a prepublication peer review intended to ensure analytical quality. The views expressed are those of the authors. This publication is part of the overall program of the Peterson Institute for International Economics, as endorsed by its Board of Directors, but it does not neces- sarily reflect the views of individual members of the Board or of the Institute’s staff or management. The Peterson Institute for International Economics is a private nonpartisan, nonprofit institution for rigorous, intellectu- ally open, and indepth study and discussion of international economic policy. Its purpose is to identify and analyze important issues to make globalization beneficial and sustainable for the people of the United States and the world, and then to develop and communicate practical new approaches for dealing with them. Its work is funded by a highly diverse group of philanthropic foundations, private corporations, and interested individuals, as well as income on its capital fund. About 35 percent of the Institute’s resources in its latest fiscal year were provided by contributors from outside the United States. A list of all financial supporters is posted at https://piie.com/sites/default/files/supporters.pdf. 1750 Massachusetts Avenue, NW | Washington, DC 20036-1903 USA | +1.202.328.9000 | www.piie.com 1. Introduction At the 11th Ministerial Conference of the World Trade Organization (WTO) in December 2017, the United States, European Union, and Japan agreed to work together in an effort to confront the Chinese economic model, particularly its conflict with their preferred, historical approach to a market-oriented and rules-based multilateral trading system.1 Their discussions since have reportedly focused on two issues: industrial subsidies and state-owned enterprises (SOEs), and the forced transfer of technology. This paper seeks to identify the main areas of tension and to assess the legal-economic challenges to constructing new rules that would address the first of these issues, subsidies. It begins with an assessment of four main concerns with the WTO: the narrow definition of what constitutes a subsidy, the high evidentiary burden in proving the existence of a subsidy, the failure of the notification process, and the ineffectiveness of remedies in disciplining subsidies. The definitional concern of “a subsidy” centers on the constrained nature of the entity considered capable of providing the requisite financial contribution: only “a government or public body,” with the Appellate Body narrowing the term “public body” to encompass only those entities that exercise governmental functions. This tight definition often means that SOEs escape scrutiny. Similarly, other government policies that create the effect of a subsidy—such as the differential application of export taxes and differential rebate of value-added taxes for inputs and outputs in an industry’s supply chain—do not fit the current legal definition of a subsidy. Second, the evidentiary burden on those challenging subsidies is too high. This is particularly true when the subsidies are provided in nontransparent economies, such as China. Moreover, many challengers fear extra-WTO retribution from China when contesting state subsidies. Third, the system of voluntary notifications of subsidies does not work. Many countries have ignored entirely or been delinquent in providing the required notifications of their subsidies. In addition, the lack of agreement as to what constitutes a subsidy likely contributes to the poor notification record of some countries. At best, they may notify only what they perceive to be subsidies. The final concern is that the remedies are inadequate. One type of remedy, countervailing duties (CVDs), is available only if the subsidized goods are being imported into a country that has a domestic industry that makes similar products and can demonstrate that it is being injured by the subsidized imports. Even then, the resulting CVD may only deflect subsidized exports into third markets and divert sourcing of imports from other third markets. The result for trade flows is essentially arbitrage. The result for policy is a missed opportunity to tackle the 1 United States Trade Representative, “Joint Statement by the United States, European Union, and Japan at MC11,” December 12, 2017, Buenos Aires. See also USTR’s Joint Statements of the Trilateral Meeting of the Trade Ministers of the United States, European Union, and Japan, issued May 23, 2019, Paris; January 9, 2019, Washington; September 25, 2018, New York; and May 31, 2018, Paris. See also The Economist, ‘The World Trading System Is Under Attack. But a Peace Plan May Be Emerging’, July 19, 2018. underlying unfair competition and overproduction arising from the subsidy. Experiences with steel, aluminum, and even solar panels are three recent and telling examples. A second type of remedy, via formal WTO dispute settlement, only becomes relevant if a WTO member demonstrates that subsidies are causing serious prejudice to its interests. In these cases the subsidizing member is generally asked to withdraw or “take appropriate steps to remove the adverse effects” of the subsidy.2 But given that WTO remedies are only prospective, the removal of the adverse effects of a subsidy may often have little practical economic impact in the markets for the relevant goods. The remedy arrives too late. These and other constraints have likely contributed to reluctance to use formal WTO dispute settlement to address China’s subsidization policies. Instead, the policy response has been to turn to tariffs—first through increased use of countervailing duties, and then arguably through other tariffs implemented during the US-China trade conflict that escalated in 2018.3 Despite current political momentum for negotiators to take on China’s subsidies, there are competing concerns. The first is simply that the economic scope of the problem is not well defined. Similar circumstances arose in the 1980s in efforts to bring new rules for agriculture into the multilateral system. That conundrum was solved, in part, when the Organization for Economic Cooperation and Development (OECD) was tasked with developing new methods to measure the variety of agricultural subsidy policies deployed across countries and sectors and then consistently reporting them.4 Policymakers then relied on the OECD’s analysis in framing the agriculture negotiations. The failure to adopt a similar approach for industrial subsidies could lead negotiators to focus on disciplining the wrong things. Second, unlike tariffs, constraints on domestic subsidies run the risk of preventing countries from sometimes using first-best economic policies. Additional political backlash could arise if new rules are seen to excessively restrain national sovereignty over legitimate economic policy. Tightening subsidy disciplines could push some of the inevitable political-economic demands for subsidies into alternative, less transparent, and more distorting policy instruments. This paper is organized as follows. Section 2 provides a brief history of subsidy disciplines in the GATT and WTO. Section 3 describes the major political and economic concerns about subsidies, particularly those relating to China. Section 4 explores
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