No more negotiated deals?: Settlement of trade and investment disputes in East Asia

Journal of International Economic Law

Volumn 10, Issue 4, 2007, Pages 837-867

  Nakagawa, Junji ^a  

^a UNIVERSITY OF TOKYO   (Japan)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 37049021734     PISSN: 13693034     EISSN: 14643758     Source Type: Journal    
DOI: 10.1093/jiel/jgm032     Document Type: Article

References (167)

1. See, for instance, Yuji Iwasawa, 'WTO Dispute Settlement and Japan', in Marco BronckersandReinhald Quick (eds), New Directions in International Economic Law: Essays in Honor of John H. Jackson (The Hague, Boston: Kluwer Law International, 2000) 473 ff;
2. Judith Goldstein, Miles Kahler, Robert O. Keohane, andAnne-Marie Slaughter (eds), Legalization and World Politics (Cambridge, MA: The MIT Press, 2001);
3. Judith Goldstein and Lisa Martin, 'Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note', in ibid (2001) at 219-48;
4. Miles Kahler, 'Legaliation as Strategy: The Asia-Pacific Case', in ibid, at 165-87;
5. Saadia Pekkanen, 'Aggressive Legalism: The Rules of the WTO and Japan's Emerging Trade Strategy', 24 The World Economy 707 (2001) [hereinafter 'Pekkanen (2001)'];
6. Saadia Pekkanen, 'Sword and Shield: The WTO Dispute Settlement System and Japan' in Ulricke Schaede and William Grimes (eds), Japan's Managed Globalization: Adapting to the Twenty-first Century (Armonk, NY: M.E.Sharpe, 2003) [hereinafter 'Pekkanen (2003)'], at 77-100;
7. Dukgeun Ahn, 'Korea in the GATT/WTO Dispute Settlement System: Legal Battle for Economic Development', 6 Journal of International Economic Law 597 (2003) [hereinafter 'Ahn (2003a)'];
8. Dukgeun Ahn, 'WTO Dispute Settlements in East Asia', NBER Working Paper 10178, Cambridge, MA: National Bureau of Economic Research, http://www.nber.org/ papers/wl0178 [herein after 'Ahn (2003b)'] (visited 14 May 2007);
9. Ichiro Araki, 'Higashi Asia no keizai kankei ni okeru houteki seidoka no genjou' (The current situation of the legalization of East Asian economic relations), 77(6) Houritsu Jihou (Law Journal) 60 (2005) [hereinafter 'Araki (2005)'];
10. Fujio Kawashima, 'Wagakuni no WTO funsou kaiketsu tetsuzuki no katsuyou jisseki to kongo no kadai' (Japan's utilization of the WTO dispute settlement procedure and its challenges for the future) 77(6) Houritsu Jihou (Law Journal) 46 (2005);
11. Henry Gao, 'Aggressive Legalism: The East Asian Experience and Lessons for China', in Henry Gao and Donald Lewis (eds), China's Participation in the WTO (London: Cameron May, 2005), 315-351;
12. Ichiro Araki, 'The Evolution of Japan's Aggressive Legalism', 29 The World Economy 783 (2006) [hereinafter 'Araki (2006)'];
13. Keisuke Iida, Legalization and Japan: The Politics of WTO Dispute Settlement (London: Cameron May, 2006).
14. Kenneth W Abbott, Robert O. Keohane, Andrew Moravcsik, Annne-Marie Slaughter and Dunkan Snidal, 'The Concept of Legalization', in Goldstein et al. (eds) n 1, 17-35, at 17.
15. See above n 1.
16. Pekkanen (2001) and Pekkanen (2003), above n 1.
17. Kawashima, above n 1.
18. Araki (2006), above n 1,
19. lida, above n 1.
20. Ahn (2003a), above n 1.
21. Provisional Investigation Rules on Foreign Trade Barrier, implemented 1 November 2002, as amended by Investigation Rules on Foreign Trade Barrier, implemented 1 March 2005. http://policy.mofcom.gov.cn/simplesearch_en.aspx (visited 18 February 2007).
22. See Junji Nakagawa (ed.), Anti-Dumping Laws and Practices of the New Users (London: Cameron May, 2007), Chapters 2 (China), 3 (Taiwan), 4 (Korea) and 5 (Thailand).
23. For a general overview of the East Asian trend toward regional economic integration, see Trade Policies Bureau, Ministry of Economy, Trade and Industry (METI) (ed.), Report on the WTO Consistency of Trade Policies by Major Trading Partners. (Tokyo: Keizai Sangyou Chousakai, 2006) http://www.meti.go.jp/policy/trade_policy/wto_consistency_report/html/f_y2006e. html (visited 14 May 2007), at 457-86.
24. Pekkanen (2001) and Pekkanen (2003), above n 1.
25. By 'investment disputes' I refer to any legal disputes between foreign investors and the government of host states. See, for instance, Article 25.1 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), done 18 March 1965, entered into force 14 October 1965, http://www.worldbank.org/icsid/basicdoc/basicdoc.htm (visited 14 May 2007).
26. Pekkanen (2001), above n 1.
27. Araki (2006), above n 1, at 784.
28. Ibid, at 799.
29. Iida, above n 1, at 31-45.
30. Kawashima, above n 1, at 50.
31. Pekkanen used the term 'aggressive legalism' to refer to the strategy to use international trade rules in settling trade disputes both as 'swords' (as complainant) and 'shields' (as respondent). See Pekkanen (2001), above n 1, at 708. However, I will focus here to only those cases where East Asian countries became complainants ('swords') to gauge aggressiveness of legalism, because becoming a respondent is a rather passive and often unavoidable policy, given the automaticity of the DSM under the negative consensus formula.
32. As Araki points out (Araki (2006), above n 1, at 784), Japan's Ministry of Economy, Trade and Industry (METI), in its 2004 Report on the WTO Consistency of Trade Policies by Major Trading Partners, laments a 'significant gap' between the performance of the US and the EC on the one hand and that of Japan on the other 'regarding the active use of international economic rules toward securing compliance with WTO obligations' (Trade Policies Bureau, Ministry of Economy, Trade and Industry (METI) (ed.), 2004 nenban fukousei boueki houkokusho (2004 Report on the WTO Consistency of Trade Policies by Major Trading Partners). Tokyo: Keizai Sangyou Chousakai (in Japanese), http://www.meti.go.jp/policy/trade_policy/wto_consistency_report/ html/f_y2004.html (visited 14 May 2007), 351). Oddly enough, the chapter containing this passage, titled 'The current situation of Japan's utilization of international economic rules and the challenges', is not contained in its English version on the website of the METI.
33. Authors concur on this. See Pekkanen (2001), above n 1,
34. Araki (2006), above n 1, at 796-99,
35. and lida, above n 1, at 31.
36. Five out of 13 complaints challenged foreign anti-dumping laws and/or their implementation under the WTO DSM, while 4 out of 11 complaints challenged the same subject matter under the GATT DSM.
37. Eight out of 12 complaints challenged the US laws and/or their implementation under the WTO DSM, while 10 out of 11 complaints were against the US and the EC (or its Member countries) under the GATT DSM.
38. Araki argues that 'Japan seems to have been highly selective in filing cases, carefully avoiding frivolous claims and focusing on winnable cases'. See Araki (2006), above n 1, at 794.
39. See above n 11, at 73-147. The measures and practices whose WTO consistency are allegedly problematic covers the following subject matters: transparency of trade policies and measures (GATT Article X:1);
40. uniform administration of laws and administrative orders [GATT Article X:3(a)];
41. judicial review [GATT Article X:3(b)];
42. national treatment in the sales of imported automobiles (GATT Article 111:4);
43. import prohibition of second-hand cloths [GATT Articles XI and XX(b)];
44. export licenses [GATT Article XI and XX(g)];
45. failure to fulfill tariff concessions for photographic film (GATT Article II);
46. the system for certifying finished vehicle characteristics (GATT Articles II and III, TRIMS Agreement);
47. tariff classification decisions [GATT Article X:3(a)];
48. the initiation of an anti-dumping investigation can occur without complete review of the details of the application (Article 5.3 of the AD Agreement); injury analysis can be unclear and not enough grounds can be disclosed in injury determination (Articles 3.1, 3.4, and 3.5 of the AD Agreement);
49. Chinese authorities do not give notification of the reasons for not using evidence submitted by an interested party and do not grant opportunities for complainants to make comments on when the authorities use facts available (FA) (Article 6.8, Annex II, Clauses 5 and 6 of the AD Agreement);
50. failure to notify the SCM Committee of the details of its value-added tax refund regime to domestic copper refineries (Article 25 of the SCM Agreement);
51. local content requirements for automobiles (GATT Article 111:4 and TRIMS Agreement);
52. export requirements to certain categories of foreign investment projects (GATT Article XI and TRIMS Agreement);
53. administration of the Compulsory Commodity Certification (CCC) Mark system to electric appliances (Article 2.2 of the TBT Agreement);
54. measures for controlling pollution by electronic information products (Article 2.2 of the TBT Agreement);
55. system for environmental management on the import and export of toxic chemicals (Articles 2.9 and 2.12 of the TBT Agreement);
56. distribution services (wholesaling, retailing, and franchising) (Schedule of Commitments);
57. construction, architecture, and engineering services (Schedule of Commitments);
58. freight forwarding agency services (Schedule of Commitments); telecommunication services (Schedule of Commitments);
59. postal/courier services (Schedule of Commitments);
60. inadequate administrative, civil and criminal remedies for intellectual property rights (IPR) infringements (Article 41, 45, 46, 59, and 61 of the TRIPS Agreement);
61. lax control of plagiarized invention/ design (Article 41.1 of the TRIPS Agreement);
62. lax control of IPR infringements by local authorities ('local protectionism') (Articles 3.1 and 41.1 of the TRIPS Agreement);
63. licensing regulations on patents and know-how (Articles 3 and 28.2 of the TRIPS Agreement).
64. Some of China's laws, practices and measures mentioned in n 25 above were subject to recent WTO complaints (China - Certain Measures Granting Refunds, Reductions or Exemptions from Taxes and Other Payments [WT/DS358 (complainant: U.S.), 359 (complainant: Mexico)],
65. China - Measures Affecting the Protection and Enforcement of Intellectual Property Rights [WT/DS362 (complainant: U.S.)],
66. China - Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products [WT/DS363 (complainant: U.S.)]. However, Japan did not join them as complainant but as interested third party.
67. Brazil - Autos (DS51) and US - Government Procurement (DS95).
68. US - Hot-Rolled Steel (DS 184) and US - Sunset Review (DS244).
69. Even in this case, backing of the EC and other powers through such forum as the OECD and the G7 Summit was critical for the success of Japan's WTO litigation strategy. See lida, above n 1, at 44 and 96.
70. Ibid, at 45.
71. Gregory C. Shaffer, Defending Interests: Public-Private Partnership in WTO Litigation (Washington, DC: The Brookings Institution, 2003) at 3.
72. lida, above n 1, at 29.
73. Automobile industry was the major beneficiary in five out of Japan's first six complaints. Steel industry was the major beneficiary in practically all the last six complaints. See Table 2 above.
74. It is noted that both sectors are oligopolistic, and led by Japan's most influential companies, Toyota and Shin Nippon Seitetsu (Nippon Steel Corporation), whose former CEOs recently occupied the Presidency of the Nippon Keidanren (Japan Business Federation).
75. In 2004, METI published the result of an inquiry to Japan's major exporting companies concerning their assessment and utilization of international economic rules (METI, above n 19, at 351-55). The majority of the respondents admitted the importance of the international economic rules, but they had rarely consulted the competent Japanese governmental authorities with respect to dubious foreign laws and practices, nor did they have enough staffs skilled in international economic rules. Again, this part of the 2004 Report on the WTO Consistency of Trade Policies by Major Trading Partners was not included in its English version on the website of the METI. See above n.19.
76. Araki (2006), above n 1, at 794.
77. 'On the opening of the homepage inquiry point for compliance with WTO rules by foreign governments', 21 May 2004, http://www.meti.go.jp/policy/ trade_policy/wto/compliance/soudan.html (visited 14 May 2007).
78. Kawashima reports that the service had accepted only one request for consultation during its first year, and the request ended up without any WTO action (Kawashima, above n 1, at 53, n 30).
79. See, for instance, Iwasawa, above n 1, at 485 and Kawashima, above n 1, at 51.
80. See, for instance, Nippon Keidanren, 'Call for a Petition System for Initiation of Investigations Regarding the Unfair Trade Practices of Foreign Nations', 13 February 2004, http://www.keidanren.or.jp/english/policy/2004/016. html (visited 14 May 2007).
81. Araki (2006), above n 1, at 801.
82. Under Section 301 as amended (19 US.C.s411), the USTR, once it accepts a petition from private sector on account of an allegedly WTO-inconsistent foreign practice, shall determine within forty-five days whether the petition is appropriate. It is only when the USTR makes an affirmative determination that it starts investigation. Moreover, the USTR has a power to decide whether or not it accepts a petition as prima facie well founded, and it frequently makes a negative determination and declines to accept it. Hearing at the General Counsel's Office, USTR, March 2004.
83. China - Measures Affecting the Protection and Enforcement of Intellectual Property Rights (WT/DS362).
84. Asahi Shimbun, 20 April 2007.
85. Ibid.
86. The reinforcement has been through (i) personnel shift within the Ministries, and (ii) recruiting a small number of Japanese trade lawyers and young scholars of international trade law for a definite term (usually two years).
87. Iida, above n 1, at 41-42.
88. Since its accession to the GATT in 1967, Korea made only one complaint under the GATT DSM (EC - Article XIX Action on Imports to the U.K. of Television Sets from Korea [GATT, C/ M/124 (1978)], while it became the target of as many as 291 trade remedy actions abroad from 1960 to 1994.
89. See Ahn (2003a), above n 1, at 602-7.
90. Ibid, at 609.
91. These do not include US - Continued Dumping and Subsidy Offset Act of 2000 (DS217), but all of these competitive exporting industries were the beneficiaries of this complaint.
92. Korean Ministry of Foreign Affairs and Trade began to publish annual report titled A Comprehensive Survey of the Trade Environment in 1998. This can be viewed as a Korean version of National Trade Estimate Report by the USTR, but without Section 301 linkage. See Ahn (2003a), above n 1, at 630, n 153.
93. Ahn points out that Korean government has relied heavily on foreign private counsels in WTO litigation. See ibid, at 630.
94. Eleven Members were the co-complainants of this case.
95. Eight Members were the co-complainants of this case.
96. See above n 48.
97. Korea's first WTO complaint, US - Imposition of Anti-Dumping Duties on Imports of Color Television Receivers from Korea (DS89), also targeted a US anti-dumping measure, filed on 10 July 1997, was settled through bilateral consultation by the revocation of the measure by the US in August 1998, which terminated the anti-dumping duty that had been imposed since 1984. Korea withdrew its complaint in September 1998.
98. See Ahn (2003a), above n 1, at 681.
99. Ibid, at 620.
100. Request for consultations, 29 July 1988. L.6381. Report of the panel adopted 16 May 1990. L/6657;
101. BISD 575/132.
102. Iwasawa, above n 1, at 449.
103. US - Definitive Safeguard Measures on Imports of Certain Steel Products (DS252). Other co-complainants were EC (DS248), Japan (DS249), Korea (DS251), Switzerland (DS253), Norway (DS254), New Zealand (DS258), and Brazil (DS259).
104. Gao, above n 1, 344.
105. China - Measures Affecting Imports of Automobile Parts (WT/DS339, 340, 342).
106. See above n 25. The USTR, in its 2006 Report to Congress on China's WTO Compliance, states that 'when bilateral dialogue fails to succeed in addressing US concerns, the United States will not hesitate to exercise its WTO rights through the initiation of dispute settlement against China, as it would with any other mature WTO trading partner'. (emphasis added by the author) United States Trade Representative (USTR), 2006 Report to Congress on China's WTO Compliance, http://www.ustr.gov/assets/Document_Library/ Reports_Publications/2006/asset_upload_file688_10223.pdf (visited 14 May 2007), at 5.
107. See above n 9 and the corresponding text.
108. Hearing from a Chinese international trade lawyer, Beijin, March 2004. Gao (above n 1, at 350) also emphasizes the importance of building up the expertise of WTO legal system for China to adopt aggressive legalism through outsourcing (hiring foreign trade lawyers) and in-house training, in particular encouraging its citizens to work in the WTO Secretariat.
109. Jung came to the similar conclusion. See Youngjin Jung, 'China's Aggressive Legalism: China's First Safeguard Measure', 36 Journal of World Trade 1037 (2002), at 1056. However, his reasoning is not based on China's aggressive third-party participation but on its first bandwagon WTO complaint on US steel safeguards.
110. Article 12.7 of the DSU provides that a panel shall submit its findings only '(w)here the parties to the dispute have failed to develop a mutually satisfactory solution' during the panel procedure. It continues that '(w)here a settlement of the matter among the parties to the dispute has been found, the report of the panel shall be confined to a brief description of the case and to reporting that a solution has been reached'.
111. WTO, Update of WTO Dispute Settlement Cases, WT/DSOV/30, 25 April 2007, p11.
112. Panel deliberations shall also be confidential (DSU, Article 14.1)
113. Junji Nakagawa, 'Lessons from the Japan-China "Welsh Onion War"', 36 Journal of World Trade 1019 (2002).
114. Ibid, at 1032.
115. China imposed 100% special customs duties on imports of Japanese automobiles, cellular and car phones, and air conditioners on 22 June 2001 in response to Japan's discriminatory treatment of Chinese shiitake and the other agricultural products. It based this countermeasure on Article 6 of the Regulations on Imports and Export Duties, which empowers Chinese customs authorities to impose such duty on imports originating in a country that applies 'discriminatory rates of duty or other types of discriminatory treatment' to Chinese products. Ibid, at 1023. Though Article XIX of the GATT does not allow such countermeasure against provisional safeguards, this prohibition was not applied to China, as it was not a member of the GATT then.
116. Ibid, at 1024.
117. Japan, Ministry of Agriculture, Forestry and Fisheries (MAFF), Press Release, On the Result of the 19th Meeting of the Japan-China Agricultural Products Trade Conference. 30 January 2007, http://www.maff.go.jp/www/press/ 2007/20070130_press4.html (visited 14 May 2007).
118. MOU between Japan and China, item 3, para.3, http://www.kantei.go.jp/jp/ koizumispeech/ 2001/1221oboegaki.html (visited 14 May 2007). (in Japanese)
119. From Japan, officials of the MAFF, METI, the Ministry of Finance (MOF), and the Ministry of Foreign Affairs (MOFA) attend the Council. From China, official of the Ministry of Commerce (MOFCOM) attend it. See Nakagawa, above n 70, at 1024 and 1033.
120. Ibid.
121. See, for instance, the MOF, Press Release, On the Result of the Monitoring of Imports of Three Products including Welsh Onion. 21 February 2007, http://www.mof.go.jp/jouhou/kanzei/ka3m190221.htm (visited 14 May 2007).
122. See above, n 75.
123. Nakagawa, above n 70, at 1033.
124. See Araki (2005), supra n 1 for the detailed facts of the case.
125. Ibid, at 62.
126. Ibid.
127. Ibid, at 63.
128. Japan - Import Quotas on Dried Laver and Seasoned Laver, Notification of Mutually Agreed Solution. WT/DS323/5, 27 January 2006.
129. Japan - Import Quotas on Dried Laver and Seasoned Laver, Report of the Panel. WT/DS323/R, 1 February 2006.
130. MOFA, Recent cases of the WTO DSM to which Japan is the party as of 31 July 2006, http://www.mofa.go.jp/mofaj/gaiko/wto/funso/funsou.html (visited 14 May 2007).
131. Araki (2005), above n 1, at 64.
132. Remark of Kazuhito Yamashita in Junji Nakagawa et al., 'Zadankai: Henkakuki no kokusai tsüshouhou to Nihon - WTO, FTA, EPA wo chūshin ni' (Round-table: International trade law in times of transformation and Japan - Focusing on the WTO, FTA, and EPA), 77(6) Houritsu Jihou (Law Journal) 4 (2005), at 22.
133. Ibid, at 22-23.
134. It should be noted here, however, that the Protocol on the Accession of the People's Republic of China provides for transitional product-specific safeguard mechanism, under which China is required to take action to prevent or remedy the market disruption, including VERs. (Article 16.2 of the Protocol of Accession of the People's Republic of China. WT/L'432, 23 November 2001.) This provisional permission of VERs shall be terminated twelve years after the date of China's accession, namely, in November 2013 (Article 16.9).
135. For a slightly different but basically politico-economic assessment of the shiitake safeguards case, see Arata Kuno, 'An Evaluation of Japan's First Sefeguards Actions', 29 The World Economy 763 (2006).
136. US - Countervailing Duzy Investigation on Dynamic Random Access Memory Semiconductoirs (DRAMS) from Korea, Report of the Panel, WT/DS296/R, 21 February 2005, Report of the Appellate Body, WT/DS296/AB/R, 27 June 2005;
137. EC - Countervailing Measures on Dynamic Random Access Memory Chips from Korea, Report of the Panel, WT/DS299/R, 17 June 2005.
138. Lawan, Thanadsillapakul, 'Legal and Institutional Frameworks for Open Regionalism in Asia: A Case Study of ASEAN', in Tamio Nakamura (ed.), The Dynamics of East Asian Regionalism in Comparative Perspective, ISS Research Series No.24 (Tokyo: Institute of Social Science, University of Tokyo, 2007), 189-210, at 203. Kahler calls this 'ASEAN Way' as 'collaboration without legalization'.
139. See Kahler, above n 1, at 167.
140. Bogor Declaration, s9, http://www.apec.org/apec/leaders__declarations/ 1994.html (visited 14 May 2007).
141. Kahler, above n 1, at 172-75.
142. Takao Suami, 'Regional Integration and the Role of the International Court: Experience of the European Court of Justice', in Nakamura, above n 94, at 239-60.
143. Junji Nakagawa, 'In Search of an Optimal Legal/Institutional Framework for the Americas; Dispute Settlement Mechanisms of NAFTA and MERCOSUR', in Nakamura, above n 94, 223-37.
144. See above n 13.
145. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted on 10 June 1958, entered into force on 7 June 1959, http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention. html (visited 14 May 2007).
146. The Inter-American Convention on International Commercial Arbitration, adopted on 30 January 1975, entered into force on 16 June 1976, http://www.sice.oas.org/dispute/comarb/iacac/iacac2e.asp (visited 14 May 2007).
147. Of the 47 cases, 17 claims were against the US, and 15 claims each were against Canada and Mexico. See http://www.naftaclaims.com/cop.htm (visited 14 May 2007).
148. United Nations Commission on International Trade Law (UNCITRAL), UNCITRAL Arbitration Rules, UN. General Assembly Resolution 31/98, adopted on 15 December 1976, http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/ 1976Arbitration_rules.html (visited 14 May 2007).
149. International Chamber of Commerce (ICC), ICC Rules of Arbitration, entered into force on 1 January 1998, http://www.iccwbo.org/court/english/ arbitration/pdf_documents/rules/rules_arb_english.pdf (visited 14 May 2007).
150. Akira Koten, 'Keizai renkei kyoutei no igi to kadai' (The significance and challenges of economic partnership agreements (EPAs) 77(6) Houritsu Jihou (Law Journal) 27 (2005).
151. See, for instance, the Japan-Singapore Economic Partnership Agreement (EPA), signed 13 January 2002, entered into force 30 November 2002, Chapter 8: Investment, http://www.mofa.go.jp/region/asia-paci/singapore/sjepa-l.pdf (visited 14 May 2007).
152. Japan has concluded 11 BITs, but there has been no arbitration under them. On the other hand, a Dutch affiliate company of Nomura Securities, Co., Japan's largest securities company, won an arbitration against Czech government according to the UNCITRAL Arbitration Rules (see above n 103) under the BIT between the Netherlands and the Czech Republic (Saluka Investments B.V. (The Netherlands) v The Czech Republic, Partial Award, 17 March 2006). See Akira Koreta and Kayo Matsumoto, 'Toushi kyoutei no shin sokumen to Nihon, Dai 2 kai, Saluka jiken' (New era of investment treaties and Japan, No. 2, Saluka case), 34 Kokusai Shouji Houmu (International Legal Transaction) 1141 (2006).
153. The WTO Agreement on Government Procurement (hereinafter the 'GPA') is a plurilateral agreement with a limited number of signatories. From East Asia, only Hong Kong, Japan, Korea, and Singapore are the parties to the GPA. When an EPA or an FTA is concluded by one of them with an East Asian country which is not a party to the GPA, and it contains rules on government procurement, these rules are outside of the coverage of the GPA. See Kotera, above n 105, at 30.
154. The NAFTA provides for three exceptions to this general principle, where the Chapter 20 DSM shall be exclusive: (i) where the responding Party claims that its action is subject to the NAFTA Article 104 Concerning Environmental and Conservation Treaties; (ii) where the dispute arises under Section B of Chapter Seven (Sanitary and Phytosanitary Measures) or Chapter Nine (Standards-Related Measures); and (iii) the third Party wishes to have recourse to dispute procedures under the NAFTA. See the NAFTA Articles 2005.2-4.
155. James McCall Smith, "The Politics of Dispute Settlement Design: Explaining Legalism in Regional Trade Parts', 54 International Organization 137 (2000), at 156-57.
156. See above n 106.
157. After this WTO case, a new Protocol for the DSM (Protocol of Olivos) was concluded among the MERCOSUR members in 2002. Its Article 1.2 provides for forum choice between the DSMs of the MERCOSUR and the WTO and exclusive jurisdiction of the forum after it has been chosen. See Nakagawa, above n 98, at 230.
158. United States-Singapore Free Trade Agreement, signed 6 May 2003, entered into force 1 January 2004, http://www.ustr.gov/assets/Trade_Agreements/ Bilateral/Singapore_FTA/Final-Texts/asset_upload_file708_4036.pdf (visited 14 May 2007).
159. On the terms of patent application, Article 16.7.7 of the Agreement (see ibid.) provides that '(e)ach Party, at the request of the patent owner, shall extend the term of a patent to compensate for unreasonable delays that occur in the granting of the patent. For the purposes of this paragraph, an unreasonable delay shall at least include a delay in the issuance of the patent of more than four years from the date of filing of the application with the Party, or two years after a request for examination of the application has been made, whichever is later, provided that periods attributable to actions of the patent applicant need not be included in the determination of such delays'.
160. See above n 106.
161. Free Trade Agreement between the Government of the Republic of Korea and the Government of the Republic of Chile, signed 15 February 2003, entered into force 1 April 2004, http://www.bilaterals.org/IMG/pdf/Korea_Chile_FTA.pdf (visited 14 May 2007).
162. Agreement between New Zealand and Singapore on a Closer Economic Partnership, signed 14 November 2000, entered into force 1 January 2001, http://www.mfat.govt.nz/Trade-and-Economic-Relations/0-Trade-archive/ 0-Trade-agreements/Singapore/O-ceppart1.php (visited 14 May 2007).
163. Article 5.8 of the WTO Anti-Dumping Agreement provides for a de minimis dumping margin of 2%.
164. Article 11.3 of the WTO Anti-Dumping Agreement provides for a maximum sunset period of five years.
165. Free Trade Agreement between the Government of the Republic of Korea and the Government of the Republic of Singapore, signed 4 August 2005, entered into force 2 March 2006, http://www.iesingapore.gov.sg/wps/portal/!ut/p/kcxml/ 04_Sj9SPykssy0xPLMn Mz0vM0Y_QjzKLN4g3Cw0GSYGY5oFm-pFoYo4YImah3phiIWEIMV- P_NxU_SB9b_0A_YLc0NDQiHJHAKO0wuk!/delta/base64xml/ L01DU01KQ1RPN29na21BISEvb0VvUUFBS VFnakZJQUFRaENFSVFqR0VBLzRKRmlDbzBlaDFpY29uUVZHaGQtc01RIS83XzBfOU 1MLzUzNDkwMA!!?WCMJ?ORTLET=PC_7_0_9ML_WCM&WCM_GLOBAL_ CONTEXT=/wps/wcm/ connect/FTA/Singapore%27s-l-FTAs/Concluded-l-FTAs/Korea/ General/Legal+Text (visited 14 May 2007).
166. For the details, see Dukgeun Ahn, 'Emerging Diversity in Trade Remedy Systems: The Case of East Asian FTAs', in Nakamura, above n 94, 211-21, at 214-15.
167. Given the stagnated Rules Negotiation in the Doha Development Agenda, and the persistent opposition of the US to introducing more stringent discipline to the WTO Anti-Dumping Agreement, incorporating additional disciplines to FTAs and EPAs may be far more feasible than doing so to the WTO Anti-Dumping Agreement.