Selective adaptation of WTO transparency norms and local practices in China and Japan

Journal of International Economic Law

Volumn 11, Issue 4, 2008, Pages 803-825

  Biukovic, Ljiljana ^a  

^a UNIVERSITY OF BRITISH COLUMBIA   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 56749155178     PISSN: 13693034     EISSN: 14643758     Source Type: Journal    
DOI: 10.1093/jiel/jgn028     Document Type: Article

References (162)

1. World Trade Organization, The Results of the Uruguay Round of Multilateral Trade Negotiations, the Legal Texts (Cambridge: Cambridge University Press 2003) 59.
2. Lesley Jacobs and Pitman B. Potter, 'Selective Adaptation and Human Rights to Health in China', 9(2) Health and Human Rights 113 (2006), at 119.
3. Above n 1, at 423.
4. Pitman B. Potter, 'Selective Adaptation, Institutional Capacity and the Reception of International Law under Conditions of Globalization', in Ljiljana Biukovic and Pitman B. Potter (eds), Globalization and Local Adaptation in International Trade Law (unpublished, manuscript on the file with author).
5. Pitman B. Potter, 'Globalisation and Business Regulation in Local Context', in Ljiljana Biukovic and Pitman B. Potter (eds), A Guide to Business Law in Asia (Markham, Out: Lexis/Nexis Canada, forthcoming in 2008).
6. Lesley Jacobs and Pitman B. Potter, above n 2, at 120. Pitman Potter is the principal investigator of the project that produced the empirical data used in this article.
7. Ljiljana Biukovic, 'Compliance with International Treaties: Selective Adaptation Analysis', 44 Canadian Yeabook of International Law 451 (2006), at 454.
8. Ibid.
9. Sylvia Ostry, 'China and the WTO: Transparency Issue', 3 UCLA Journal of International Law and Foreign Affairs 1 (1998).
10. For further discussion concerning the nature of the WTO normative framework, see Biukovic, above n 7.
11. For more on the adoption of the rule of law principle in Asia see Randall Peerenboom (ed.), Asian Discourses of Rule of Law - Theories and Implementation of Rule of Law in Twelve Asian Countries (London and New York: RoutladgeCruzon 2004).
12. Francis Fukuyama, State-Building: Governance and World Order in the 21st Century (Ithaca: Cornell University Press 2004).
13. On the importance of the principle of transparency in the international context, see Abraham Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge: Harvard University Press 1995) 62.
14. Organization for Economic Cooperation and Development, 'Regulatory Policies in OECD countries from Intervention to Regulatory Governance', PUMA/RE6 (2001) 10, 21 November 2001, at 41.
15. NERA (National Economic Research Associates) Economic Consulting, 'Regulatory Transparency: International Assessment and Emerging Lessons, A Final Report for the World Bank', 6 June 2005, at 147.
16. OECD, above n 12.
17. Robert Wolfe, 'Regulatory Transparency, Developing Countries and the WTO', 2 World Trade Review 157 (2003), at 158.
18. Ibid.
19. Ibid.
20. Article X of the GATT 1994 states: 3. (a) Each contracting party shall administer in a uniform, impartial, and reasonable manner all its laws, regulations, decisions, and rulings of the kind described in paragraph 1 of this Article, (b) Each contracting party shall maintain, or institute as soon as practicable, judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review and correction of administrative action relating to customs matters. Such tribunals or procedures shall be independent of the agencies entrusted with administrative enforcement and their decisions shall be implemented by, and shall govern the practice of, such agencies unless an appeal is lodged with a court or tribunal of superior jurisdiction within the time prescribed for appeals to be lodged by importers;
21. Provided that the central administration of such agency may take steps to obtain a review of the matter in another proceeding if diere is good cause to believe that the decision is inconsistent with established principles of law or the actual facts, (c) The provisions of subparagraph (b) of this paragraph shall not require the elimination or substitution of procedures in force in the territory of a contracting party on the date of this Agreement which in fact provide for an objective and impartial review of administrative action even though such procedures are not fully or formally independent of the agencies entrusted with administrative enforcement. Any contracting party employing such procedures shall, upon request, furnish the CONTRACTING PARTIES with full information thereon in order that they may determine whether such procedures conform to the requirements of this subparagraph.
22. Ostry, above n 9, at 4.
23. Ibid, at 4 and 5. Ostry explains that all 56 delegations at the Havana meeting accepted the US draft of Article 38 even though it was deeply rooted in American administrative law and that Article 38 of the Havana Charter directly incorporated Article 15 of the US State Department document entitled 'Publication and Administration of Trade Regulations-Advance Notice of Restrictive Regulations', which later became incorporated into GATT Article X as 'Publication and Administration of Trade Regulations' without substantive modifications.
24. Ibid, at 9-11. Ostry in particular emphasizes the fact that the WTO expanded international trade rules and disciplines beyond GATT (which focused on tariff barriers controlled by borders) to areas of services, intellectual property and investment, thus directly influencing domestic regulatory regimes.
25. See WTO, 'Trade Policy Review', http://www.wto.org/english/tratop-e/tpr- e/tpr-e.htm (visited 5 September 2008). The TPRM was created to enable regular monitoring of trade polices and practices of WTO Members and examine the impact of a Member's trade policies and practices on the multilateral trading system.
26. See e.g. Peerenboom, above n 10.
27. See also, Randall Peerenboom, China's Long March Toward Rule of Law (Cambridge: Cambridge University Press 2002).
28. Wolfe, above n 15;
29. Pitman B. Potter, 'Globalization and Economic Regulation in China: Selective Adaptation of Globalized Norms and Practices', 1 Washington University Global Studies Law Review 119 (2003);
30. Ostry, above n 7.
31. See also, Stanley Lubman, 'Studying Contemporary Chinese Law: Limits, Possibilities, and Strategy', 39 American Journal of Comparative Law 293 (1991).
32. See Potter, ibid.
33. Gregory Stein, 'Acquiring Land Use Rights in Today's China: A Snapshot from on the Ground', 24 UCLA Pacific Basin Law Journal 1 (2006).
34. Potter calls such application 'selective adaptation'.
35. See Potter, above n 4, at 7 and 8.
36. Article 2.2 of the SPS Agreement.
37. Article 3.3 of the SPS Agreement.
38. Article 7 of the SPS Agreement.
39. Article 7 of the SPS Agreement.
40. See also, Justin Kastner and Douglas Powell, "The SPS Agreement: Addressing Historical Factors in Trade Dispute Resolution', 19 Agriculture and Human Values 283 (2002), at 284.
41. On the SPS Agreement's major objectives,
42. see also Jeffrey L. Dunoff, 'Lotus Eaters: Reflections on the Varietals Dispute, the SPS Agreement, and WTO Dispute Resolution', Institute for International Law and Public Policy Paper Series No. 2006-1, (2006) at 15.
43. SPS Agreement, above n 1.
44. Article 1 of Annex B, of the SPS Agreement.
45. Article 3 of Annex B, of the SPS Agreement.
46. Article 12 of the SPS Agreement.
47. For a detailed overview of the GATT/WTO case law on transparency,
48. see Padideh Alai'i, 'From the Periphery to the Center? The Evolving WTO Jurisprudence on Transparency and Good Governance'.
49. Wolfe, above n 15;
50. Michael Friis Jensen, 'Reviewing the SPS Agreement: A Developing Country Perspective', The Royal Venerinary and Agricultural University, Denmark, Working paper, January 2002 (Presented at the Centre for Devlopment Research, Copenhagen, on 22 August 2001, on file with the author);
51. Kajli Bakhshi, 'SPS Agreement under the WTO: The Indian Experience' (IDF Working Papers, January 2005, on file with the author).
52. See e.g. Dunoff, 'Lotus Eaters' above n 31, at 22 and 23;
53. Jensen, ibid, at 31.
54. But, see also Caroline E. Foster, 'Public Opinion and the Interpretation of the World Trade Organisation's Agreement on Sanitary and Phytosanitary Measures', 11 Journal of International Economic Law 427 (2008). Foster argues that there are significant cultural differences among developing countries that stem from the significance given in different countries to public opinion in decision-making about risks to human health and the environment, as illustrated in the EC Measures Concerning Meat and Meat Products (EC-Hormones) case.
55. WTO, Committee on Sanitary and Phytosanitary Measures, 'Proposal for a "Mentoring" System of Assistance Relating to Transparency Provisions of the SPS Agreement,' G/SPS/ W/217, Adopted on 20 February 2008, http://www.wto.org/english/tratop-e/sps-e/sps-e.htm#transparency (visited 5 September 2008).
56. Ibid.
57. WTO, 'Members Set to Agree on Regionalization, Improved SPS Transparency', Adopted on 2 April 2008, http://www.wto.org/english/news-e/news- e.htm (visited 5 September 2008).
58. WTO, 'Decision on SPS Transparency Confirmed', Adopted on 30 May 2008, http://www.wto.org/english/news-e/news08-e/sps-30may08-e.htm (visited 5 September 2008).
59. Ibid.
60. S. Nuri Erbas, 'Ambiguity, Transparency, and Institutional Strength', IMF Working Paper No. WP/04/115, July 2004, at 3, http://www.imf.org/external/pubs/ cat/longres.cfm?sk= 17345.0 (visited 5 September 2008).
61. For example, in WTO Panel Report, Japan - Measures Affecting Agricultural Products (Japan-Agricultural Products II), WT/DS76/R, adopted 19 March 1999, the panel devoted only four pages to the evaluation of the Article 7 arguments in its 170-page decision.
62. In WTO Appellate Body, Japan - Measures Affecting Agricultural Products (JapanAgricultural Products II), WT/DS76/AB/R, adopted 19 March 1999, the discussion of Article 7 received less than two pages in the 42-page decision.
63. In WTO Panel Report, Japan-Measures Affecting the Importation of Apples (Japan -Apples), WT/DS245/R, adopted 10 December 2003, Article 7 received less than five pages in a 280-page decision. Finally, in European Communities Measures Affecting the Approval and Marketing of Biotech Products (EC-Approval and Marketing of Biotech Products), WT/DS291/R, adopted 21 November 2006, the panel devoted less than five pages to the discussion of Article 7 in a Report of over 1,000 pages.
64. See e.g. Dunoff, 'Lotus Eaters', above n 31;
65. Saadia M. Pekkanen, Japan's Aggressive Legalism; Law and Foreign Trade Politics Beyond the WTO (Stanford: Stanford University Press 2008) 25-30.
66. WTO Members' SPS-Related Web sites, http://www.wto.org/english/tratop-e/ sps-e/spslinks-e.htm (visited 5 September 2008). TBT/SPS-Related Chinese sites are available at http://www.tbt-sps.gov.cn/SITES/ENGLISH/Pages/default.aspx (in English) (visited 5 September 2008) and http://www.tbt-sps.gov.cn/Pages/main. aspx (in Chinese) (visited 5 September 2008).
67. See e.g. Wolfe, above n 15.
68. Frank K. Upham, 'Ideology, Experience, and the Rule of Law in Developing Societies', in Meredith Jung-En Woo (ed.), Neoliberalism and Institutional Reform in East Asia; A Comparative Study (New York: Palgrave 2007) 35-62 at 49.
69. Shigenori Matsui, 'Business Law in Japan', in Biukovic and Potter (eds), above n 5.
70. Matsui, ibid. Similarly, Randall Peerenboom argues that administrative guidance issued by administrative official with a lot of discretion played an important role in the development of state in Japan.
71. See, Randall Peerenboom, China Modernizes; Threat to the West or Model for the Rest? (Oxford: Oxford University Press 2007) 37.
72. Matsui, ibid. Matsui explains that 'it is hard to challenge the administrative guidance before the court since it does not have any legally binding power'. Similarly, Randall Peerenboom argues that administrative guidance issued by administrative official with a lot of discretion played an important role in the development of state in Japan.
73. See, Peerenboom, ibid, at 37.
74. Not only is the number of administrative cases small (only about 3,000 per year) but also in 80% of these cases government won.
75. See, Matsui, ibid.
76. In particular, the United States has challenged Japanese government control of business as unreasonable, economically harmful, and contrary to international standards.
77. See, Sadia M.Pekkanen, above n 45.
78. Upham, above n 48, at 51.
79. Pekkanen, above n 45, at 31.
80. Pekkanen argues that this reliance on a rule-based trade diplomacy and the use of law and the legal process as a sword is the essence of Japan's aggressive legalism.
81. See, Pekkanen, above n 45, at 4 and 5.
82. Pekkanen, above n 45, at 10 and 11.
83. Pekkanen, above n 45, at 5.
84. 5 United States Code (USC) s 552.
85. Japan, Ministry of Internal Affairs and Communications, 'Law Concerning Access to Information Held by Administrative Organs' (2001), http://www.soumu.go.jp/gyoukan/kanri/low0404-2.htm.
86. Lawrence Repeta, 'Local Government Disclosure Systems in Japan' 16 The National Bureau of Asian Research (NBR) Executive Insight (1999) at 42, http://www.nbr.org/publications/specialreport/pdf/EI16.pdf (visited 5 September 2008).
87. See, the Office of the Trade and Investment Ombudsperson (OTO), http://www5.cao.go.jp/access/english/oto-main-e.html (visited 5 September 2008). OTO was established in 1982 and first reformed in 1994 through establishment of the Market Access Ombudsman Council (MAOC) in the Cabinet Office. The Council is comprised of a group of scholars and business leaders, including non-Japanese members.
88. The Trade Policy Review Body (TPRB) Chairman's remarks about Japan's protectionism and the inconsistency of its SPS quarantine measures with Article 7 echoed a number of the agriculture related WTO complaints against Japan by the United States, such as in Appellate Body Report, Japan - Agricultural Products II, above n. 44;
89. WTO Appellate Body, Japan - Measures Affecting the Importation of Apples (Japan - Apples), WT/DS245/AB/ R, adopted 10 December 2003.
90. See also, Pekkanen, above n 48 at 26. Note that the US claim in the Japan - Apples case was based on Japan's violation of obligations arising out of Article 7 of the SPS Agreement. Annex B was not considered by the Appellate Body because the panel found that the US had failed to establish a prima facie case under these provisions. Appellate Body, Japan - Apples, para 4.
91. On the other hand, the US complaint that in not having published the varietal testing requirement, Japan acted inconsistently with its obligations under Article 7 of the SPS Agreement and para. 1 of Annex B was successful before both panel and the Appellate body. Appellate Body, Japan - Agricultural Products II, above n 44.
92. WTO, Trade Policy Review, 'Report by the Secretariat: Japan' WT/TPR/S/175/Rev.1, 10 April 2007, para 22 at ix.
93. WTO, Committee on Sanitary and Phytosanitary Measures, National Enquiry Points, G/SPS/ENQ/23, 27 March 2008, http://www.wto.org/english/tratop-e/sps-e. htm#enquiry (visited 5 September 2008). It is noteworthy that the enquiry point does not appear to be available online through the MOFA homepage.
94. Shokuhin Eiseiho (Food Sanitation Law), Law No. 223 of 24 December 1947, last amendment Law No. 87 of 26 July 2005, http://www.jetro.go.jp/en/market/ regulation (visited 5 September 2008).
95. Shokuhin Anzen Kihanho (Food Safety Basic Law), Law No. 48 of 23 May 2003, last amendment Law No.50 of 2 June 2006, http://www.fsc.go.jp/enlish/ index.html (unofficial translation) (visited 5 September 2008).
96. Ordinances, regulations, procedures, and information on food safety can be also found in English on the MHLW web site. Scott McCook, Second Secretary of Embassy of Canada, Tokyo, Japan, explained to the audior's researcher Anna Turinov that there have been discussions about setting up a consumer affairs agency in Japan, but no concrete action has been taken yet. Notes from interview with Scott McCook of 4 August 2008 (on file with author).
97. Food Safety Basic Law, above n 67, Arts 22-28. Indeed, Scott McCook, Second Secretary of Embassy of Canada, Tokyo, Japan, explained that the FCS had been established after the BSE issue emerged. McCook reports that transparency and access to ministries and government agencies does not represent a significant barrier to entry for Canadian exporters to Japan since most information is now available online (in Japanese or English) and because of the willingness of Japanese importers to assist their foreign partners. According to Mr McCook, the remaining difficulty relating to lack of transparency and standardization is that quarantine officers have a broad discretion in dealing with the categorization of products.
98. See, Note from Scott McCook of 4 August 2008, ibid.
99. The Plan Protection States, http://www.maff.go.jp/pps, a facility of the MAFF aimed at protecting Japanese agriculture, is responsible for monitoring plant health and is in charge of the plant quarantine system.
100. See, Kachiky Densenbyo Yoboho (the Domestic Animal Infectious Diseases Control Law), Law No. 166 of 31 May 1951, last amendment Law No. 68 of 2 June 2005, http://www.cas.go.jp/jp/seisaku/hourei/data2.html;
101. Kyokenbyo Yoboho (Rabies Prevention Law), Law No. 247 of 26 August 1950, last amendment Law No. 160 of 22 December 1999, http://law.e-gov.go.jp/cgi-bin/ idxsrch.cgi (Japanese text) (visited 5 September 2008);
102. Kansensho no Yobo oyobi Kansensho no Kanja ni tai suru Iryo ni Kankei suru Horitsu (Law Concerning the Prevention of Infections and Medical Care for Patients of Infections), Law No. 114 of October 2, 1998, last amendment Law No. 30 of May 2, 2008, http://law.e-gov.go.jp/cgi-bin/inxsearch.cgi Japanese text) (visited 5 September 2008).
103. Pekkanen emphasizes that Japan has fewer lawyers per capita then any other developed country (16,000 qualified lawyers for a population of 120 million in Japan, in comparison with 700,000-900,000 US lawyers for a population of 220 million), but that those numbers have been changing rapidly since the legal education reform in the 2000s.
104. See, Pekkanen, above n 45, at 10 and 11.
105. For more on the scope and nature of Japanese legal education reform, particularly in the area of commercial dispute resolution, see Mayumi Saegusa and Julian Dierkes, 'Integrating Alternative Dispute Resolution', in Ljiljana Biukovic and Pitman Potter (eds), above n 4.
106. For the most recent discussion on this topic, see Chien-Huei Wu, 'How Does TRIPS Transform Chinese Administrative Law', 8 Global Jurist Article 6 (2008), at 3-8.
107. For a discussion on the capacity of the WTO to act as the most transformative legal instrument in the history, see Ernst Ulrich Petersmann, 'Multilevel Trade Governance in the WTO Requires Multilevel Constitutionalism', in Christian Joerges and Ernst-Ulrich Petersmann (eds), Constitutionalism, Multilevel 'Rade Governance and Social Regulation (Portland: Hart Publishing 2006).
108. WT/L/432, 23 November 2001, at 3.
109. Ibid.
110. Report of the Working Party on the Accession of China, WT/MIN(01)/3, 10 November 2001, para 334.
111. For more on the problem of uniform administration of rules in China and the relation between the central and provincial and local governments, see Paulo D. Farah, 'Five Years of China's WTO Membersip;
112. EU and US Perspectives on China's Compliance with Transparency Commitments and the Transitional Review Mechanism', 33 Legal Issues Of Economic Integration 263 (2006), at 270-78.
113. Ostry, above n 9, at 12.
114. Ibid. Similarly, other authors argued that the requirements (including transparency) of China's accession to the WTO as set out in the Protocol go beyond the terms of existing WTO agreements.
115. See, Julia Ya Qin, '"WTO-Plus" Obligations and Their Implications for the World Trade Organization Legal System', 37 Journal of World Trade 483 (2003);
116. Karen Halverson, 'China's WTO Accession: Economic, Legal, and Political Implications', 27 Boston College International and Comparative Law Review 319 (2004).
117. Jacobs and Potter, above n 2, at 116-17.
118. Ibid, at 117.
119. Lubman, 'Studying Contemporary Chinese Law', above n 24;
120. Ostry, above n 9.
121. Vivienne Bath, 'Reducing the Role of Government-The Chinese Experiment', 3(1) Asian Journal of Comparative Law (2008) at 1, http://www.bepress.com/asjcl/ vol3/iss1/art9 (visited 5 September 2008).
122. Ibid, at 3. Bath cites enactment of the following legislation related to administrative law in the period from 1989 to 2007: Administrative Litigation Law (1989), State Indemnity Law (1994), Administrative Punishments Law (1996), Administrative Supervision Law (1997), Administrative Reconsideration Law (1999), and Administrative Licensing Law (2003).
123. Ibid, at 1. Similarly, Chien-Huei Wu found that the TRIPS transparency provisions resulted in important administrative law reforms.
124. See, Chien-Huei Wu, above n 72, at 1.
125. The Administrative Licence Law, promulgated 27 August 2003, effective 1 July 2004, http://www.fdi.gov.cn/pub/FDI-EN/Laws/GeneralLawsandRegulations/ BasicLaws/P020060620319981258285.pdf (English text) (visited 5 September 2008).
126. Article 33 of the Administrative License Law.
127. See more on the Administrative License Law in Bath, above n 82.
128. Chinese web news People's Daily Online reported on 23 March 2007 that: 96% of the departments of the State Council, 97% of provincial government organs, 96.7% of municipal government departments, and 87% of county-level governments have launched their own web sites. In total, 86% of government organs have official websites. It also mentioned that the central government, which launched its web site on 1 January 2006 (http://www.gov.cn) has been daily uploading approximately 1,000 pieces of news and information for Chinese and foreign citizens.
129. Regulations of the People's Republic of China on Open Government Information, promulgated 5 April 2007, effective 1 May 2008, http://www.chinaelections.net/UploadFile/2008-5/mc-2723153857356.pdf (visited 8 September 2008) (English text provided by the China Law Center, Yale Law School).
130. Bath, above n 82, at 22.
131. Potter sees institutional purpose as an important factor of institutional capacity since it 'reveals the ways in which the goals of institutions vary with local material and ideological contexts'. Potter, 'Selective Adaptation, Institutional Capacity and the Reception of International Law Under Conditions of Globalization', in Biukovic and Potter (eds), above n 4. He identifies institutional orientation as 'the priorities and habitual practices that inform institutional performance' indicating that in Asia, this factor may reveal tension between formal and informal modes of operation, where the central government trying to localize more formal (international) modes of information may encounter a resilient local, more informal mode of operation that is based on local social norms and networks. Potter, ibid.
132. Potter and Jacobs provide two case studies-on the SARS epidemics and treatment of people living with HIV/AIDS in China-to illustrate this problem.
133. See, Potter and Jacobs, above n 2.
134. The General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ), http://english.aqsiq.gov.cn/AboutAQSIQ/Mission/ (visited 5 September 2008). The summary of institutional and legal framework is based on the report of a research assistant Anna Turinov, JD 2008, Faculty of Law, UBC. It is important to note that the AQSIQ supervisory position is different from the position of the related organizations in Japan, where several ministries share supervision.
135. AQSIQ drafts the laws, regulations, binding decrees, ordinances, and notices related to quality supervision, inspection, and quarantine, it organizes implementation of the laws and regulations concerning quality supervision, inspection, and quarantine, and it supervises theadministration and enforcement of laws relating to quality supervision, inspection, and quarantine. Ibid.
136. Ibid.
137. Ibid.
138. See WTO, Committee on Sanitary and Phytosanitary Measures, links to members' SPS-related web sites, http://www.wto.org/english/tratop-e/sps-e/ spslinks-e.htm (visited 5 September 2008).
139. WTO, Committee on Sanitary and Phytosanitary Measures, 'National Enquiry Points' G/SPS/ENQ/23 (27 March 2008), http://www.wto.org/english/tratop-e/sps-e/ sps-e. htm#enquiry (visited 5 September 2008).
140. WTO, Committee on Sanitary and Phytosanitary Measures, 'National Notification Authorities', G/SPS/NNA/13 (27 March 2008), http://www.wto.org/ english/tratop-e/sps- e/sps-e.htm#enquiry (visited 5 September 2008).
141. WTO, Committee on SPS Measures, 'Report to the Council for Trade in Goods on China's Transitional Review', G/SPS/38, 1 November 2005, at para 15.
142. China, Standing Committee of the National People's Congress, Standardization Law (promulgated 29 December 1988, effective 1 April 1989), Article 12, http://english.aqsiq.gov.cn/ LawsandRegulations/ (English text) (visited 5 September 2008).
143. Ibid, Article 18.
144. Ibid, Article 7.
145. Ibid.
146. Ministry of Commerce (PRC), Department of WTO Affairs, http://sms2.mofcom.gov.cn/index.shtml (visited 5 September 2008).
147. China, Food Hygiene Law (promulgated by Order No. 59 of the President of the PRC, 30 October 1995, effective 30 October 1995), translated at http://english.aqsiq.gov.cn/ LawsandRegulations/ (visited 5 September 2008).
148. China, Law on Product Quality (promulgated by the Standing Comm. Nat'l People's Cong., 8 July 2000, effective 1 September 2000), translated at http://english.aqsiq.gov.cn/LawsandRegulations/ (visited 5 September 2008).
149. China, Law on the Entry and Exit Animal and Plant Quarantine (promulgated by Order No. 53 of the President of the PRC, 30 October 1991, effective 1 April 1992), translated at http://english.aqsiq.gov.cn/ LawsandRegulations/ (visited 5 September 2008).
150. China, Frontier Health and Quarantine Law (promulgated by the Standing Comm. Nat'l People's Cong., 2 December 1986, effective 1 May 1987), translated at http://english.aqsiq.gov.cn/LawsandRegulations/ (visited 5 September 2008).
151. Specific Rules for Enforcing the Frontier Health and Quarantine Law (approved by the State Council, 10 February 1989, issued by the Ministry of Public Health, 6 March 1989), translated in AQSIQ (PRC).
152. Frontier Healdi and Quarantine Law, Article 1.
153. Ministry of Commerce (PRC), enquiry online, http://gzly.mofcom.gov.cn/ website/comment/ foreign/english-bbs.jsp (visited 5 September 2008).
154. WTO, Committee on Sanitary and Phytosanitary Measures, 'Report to the Council for Trade in Goods on China's Transitional Review', above n 98.
155. See, in particular statements of the European Communities (para 2) and the United States (paras 7 and 11).
156. Ibid, statement of Australia (para 12).
157. Local perception with respect to the principle of transparency has been examined by the research teams of the Asia Pacific Dispute Resolution projects led by Prof. Pitman Potter of the University of British Columbia, Canada. In 2005 and 2006, a series of questionnaires were distributed in China, and local business people and legal practitioners were asked various questions about the nature and the functioning of the principle of transparency as applied in China. It is noteworthy that while the majority of respondents revealed their understanding of the importance of access to information and the right to comment, a great number failed to associate the right to information and review with the obligation of the government to provide information, provide reasoned opinions and to ensure judicial review of the decision. The importance of private networks seems to be still high.
158. For more on the questionnaires and analysis of the data, see Biukovic, above n 7.
159. Bath's analysis of the first three years of application of the Administrative Licensing Law confirms this point.
160. See, Bath, above n 82, at 7. Randall Peerenboom explains diat while China readily embarked on market reforms it intentionally resisted advice given by international institutions and experts to speed up with deregulation and to decrease the role of central government in regulating business.
161. On the contrary, argues Peerenboom, the state in China continued to play a central role in economic reforms and the country pursued adapting basic economic principles to its own circumstances.
162. See Peerenboom, above n 50, at 5 and 6.