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A Challenge for the International Monetary and Trading System

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A Challenge for the International Monetary and Trading System Research Paper Prepared by the Trade Law Advisory Group Under a Grant Funded by the U.S. Small Business Administration China's Policy of Substantially Undervaluing the Renminbi: A Challenge for the International Monetary and Trading System David A. Hartquist, Esq. Jeffrey S. Beckington, Esq. Kelley Drye & Warren LLP 3050 K Street, N.W. Suite 400 Washington, D.C. 20007 (202) 342-8400 Ariel Collis Georgetown Economic Services, LLP 3050 K Street, N.W. Washington, D.C. 20007 (202) 945-6660 September 15, 2008 TABLE OF CONTENTS Page 1. INTRODUCTION ..............................................................................................................1 II. THE HISTORICAL BACKDROP .................................................................................... 2 A. Exchange-Rate Undervaluation Between World War I and World War II............ 2 1. Treatment by the United States of Exchange-Rate Undervaluation As a Subsidy ............................................................................................... 3 2. Other Countries' Treatment of Exchange-Rate Undervaluation As Actionable Dumping .................................................................................. 6 B. Efforts Commencing in World War II to Build an International Framework for Dealing With Exchange-Rate Undervaluation ............................10 1. A Sense of Urgency Prompted by the Great Depression and the Second World War ...................................................................................10 2. International Monetary Reform ................................................................12 a. Focus on Orderly Exchange Arrangements and the Bretton Woods' Par-Value System ...........................................................12 b. End of the Bretton Woods' Par-Value System in 1971, the International Monetary Fund's 1977 Surveillance Decision, and 1978's Second Amendment to the International Monetary Fund's Articles of Agreement .....................................16 C. China, the International Monetary Fund's 2007 Surveillance Decision, and Reports by the U.S. Department of the Treasury ............................................................................. 20 3. The Structuring of International Trading Rules ....................................... 25 a. Early Developments and Fundamental Principles ....................... 25 b. Recognition by the General Agreement on Tariffs and Trade of the Need for Orderly Exchange Arrangements to Facilitate International Trade ....................................................... 27 i. Article XV of the GATT .................................................. 28 ii. Articles XII and XVIII:B of the GATT ........................... 30 iii. Article II of the GATT ..................................................... 32 iv. Article VIII of the GATT ................................................. 33 V. Article VI of the GATT .................................................... 34 C. The Groundwork for Coordination Between the International Monetary Fund and the World Trade Organization .............................................................. 34 D. Summary .............................................................................................................. 37 III. CONTEMPORARY VIEWS OF EXCHANGE-RATE UNDERVALUATION............ 37 A. The Importance of an Equilibrium Exchange Rate ..............................................37 B. Nominal Exchange Rates and Real Exchange Rates ........................................... 38 C. Ways in Which Undervaluation Hurts the Macroeconomy and Growth ............. 39 D. Undervaluation as a Second-Best Solution for Developing Countries to Strengthen Their Export Sectors .......................................................................... 41 -i- TABLE OF CONTENTS (continued) Page E. Summary .............................................................................................................. 42 IV. CHINA'S EXCHANGE-RATE POLICIES AND PRACTICES AND THEIR RAMIFICATIONS FOR THE INTERESTS, ECONOMY, AND SMALL BUSINESSES OF THE UNITED STATES .................................................................... 43 A. Background ..........................................................................................................43 B. China's Distrust of Market Forces to Value the Renminbi ..................................44 1. Adjustment After Mao: 1978 to 1988 ......................................................44 2. Experimentation and Dual Exchange-Rates: 1988 to 1993 .....................47 3. Exchange-Rate Unification: 1994 to 2005 ...............................................48 4. Revaluation: July 2005 to the Present ......................................................50 C. Measures Employed by China in Lieu of Market Forces to Control the Renminbi's Rate of Exchange Vis-a-Vis Foreign Currencies and the Rate of Inflation in China ............................................................................................. 51 1. China's Basic Regulation on Foreign Exchange ...................................... 52 2. The Chinese Government's Intervention in the Exchange Markets to Control the Renminbi's Relative Value ............................................... 53 3. Inflation and "Sterilization" in China as Consequences of the Chinese Government's Intervention in the Exchange Markets ................ 54 a. "Sterilization" Bonds ..................................... b. Reserve Requirements for Chinese Banks ................................... 55 C. "Window Guidance" .................................................................... 55 4. Summary .................................................................................................. 56 D. The Extent of the Renminbi's Undervaluation .................................................... 56 E. Ways in Which the Persistent Undervaluation of China's Currency Has Been Detrimentally Affecting the United States and China and Is Likely to Continue Doing So ............................................................................................... 60 1. Introduction .............................................................................................. 60 2. Direct Harm to the U.S. Economy ........................................................... 61 3. Indirect Harm to the U.S. Economy ......................................................... 61 4. Harm to China's Economy and Environment .......................................... 64 5. Conclusion ................................................................................................67 F. Summary .............................................................................................................. 67 V. THE NEED FOR EFFECTIVE DETERRENCE BY THE INTERNATIONAL COMMUNITY OF EXCHANGE-RATE UNDERVALUATION ................................. 68 A. Collaboration Between the International Monetary Fund and the World Trade Organization ............................................................................................... 68 B. Recourse to Remedies Available Under the World Trade Organization's Provisions Against a Currency's Persistent Undervaluation ................................ 68 VI. CONCLUSION ................................................................................................................ 68 -ii- I. INTRODUCTION The international community is no stranger to enforced undervaluation of currencies by some countries. These experiences, it can reasonably be said, have generally been unpleasant, have generated considerable controversy, and, when extreme enough, have put substantial strain on trade and investment across national boundaries, even to the point of creating dangerous, destructive imbalances and situations. The problem in the first place is that there are self-serving gains, at least for a time, that a country will realize from engaging in this practice, albeit at the expense of its trading partners, particularly increases in exports and foreign direct investment, curtailment of imports, and consequently greater foreign exchange reserves, larger corporate profits, and more employment than would be the case if the country allowed its currency to reflect the market's fundamentals of supply and demand. This paper explores some of the recent history of this phenomenon and the international efforts that have been made, beginning in World War II, to understand and discourage measures that can be described by various names such as competitive currency depreciation, exchange-rate undervaluation, and currency manipulation. What emerges from this review is the somewhat curious picture of a global system that is relatively tolerant of competitive currency depreciation despite the considerable damage that can result and that, on occasion, has resulted from such behavior. The basic thesis of this paper is that competitive currency depreciation is a hybrid in nature - a national monetary measure that has a direct impact on international trade and investment - and that regulatory efforts in this area accordingly should include international oversight that takes this duality into account more fully than has been the case to date. During and after World War II, the drafters of both the Articles of Agreement of the International Monetary Fund ("IMF") and the General Agreement on Tariffs and Trade ("GATT") recognized that no international trading system can function and prosper without a stable international exchange system. The critical importance of this interrelationship
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