Issues surrounding the operation of state-owned enterprises in the international trading system is an understudied area and yet one of increasing importance, particularly given the size and significance of Chinese state-owned enterprises (SOEs). We start by situating the SOEs within the GATT and WTO frameworks and then summarize the main findings of a set papers prepared for an advanced law and policy seminar on SOEs held at Columbia Law School in the fall 2016.

This Article provides an anatomy of Chinese state-owned enterprises (SOEs) by unpacking their various relations with different types of state organs. It shows that Chinese SOEs are embedded in a network composed of dense and complex links with the state. Shareholding ties, albeit important, are only one of the many relations with the state. This network perspective provides a rather comprehensive overview of the basic architecture of China's state-owned sector. It illustrates important governance institutions that are unobservable from the laws on the book and distinctive from international standards. It clarifies some SOE behaviors that appear puzzling when taking the individual firm as the unit of analysis. It also raises challenging questions on various areas of law in the context of globalization.

By acting as a trader, a government may influence the direction of international trade through its purchases and sales decisions without resort to other more direct means of trade regulation. The GATT recognizes that governments may choose to participate in international commerce in competition with private firms, but it does not leave them with a free hand when it comes to carrying out trading operations. The core rules regulating a State's trading activities are found in Article XVII and related provisions of the GATT. In the 70 years since their adoption, developments in both the GATT 1947 and the WTO have delineated a set of relatively limited disciplines rooted in the principle of non-discrimination, raising doubts about their effectiveness to address the kinds of problems caused by ‘State trading’ today. It remains true, however, that while State trading enterprises continue to operate across the world, and fundamental questions about the full reach and scope of the existing disciplines endure, opportunities to clarify their role in the modern trading system may well arise in the future practice of WTO Members.

In 2007, the US reversed its long-standing policy prohibiting the simultaneous imposition of anti-dumping duties (ADDs) and countervailing duties (CVDs) against non-market economies. The EU followed the US lead and also began imposing simultaneous ADDs and CVDs. The practice, however, leads to double remedies, which are when a domestic subsidy is offset by both an ADD and a CVD. The WTO Appellate Body recently ruled that double remedies were inconsistent with the Agreement on Subsidies and Countervailing Measures and that the burden was on the investigating authorities to ensure that double remedies were not being imposed.

The two central issues in China's accession to the World Trade Organization (WTO) were its economic size and the large role the state had played in economic decisions – the treatment of State-Owned Enterprises (SOEs) as central to addressing the latter point. While the Protocol of Accession imposed obligations on China that went beyond what was required of other WTO members, it has not been effective at resolving concerns about Chinese SOEs. This demonstrates, in part, the limitations in using the WTO as a vehicle to promote economic reform.

Free trade agreements (FTAs) are about far more than free trade. They are about national security. A trade deal may be ambitious in liberalizing or managing cross-border flows in goods, services, intellectual property (IP), and people, but to argue for or against an FTA solely along the axis of free versus managed trade is to miss another vital purpose – the deal can, and indeed should, advance national security. This article makes two points. First, the Trans-Pacific Partnership (TPP) exemplifies the possibility of enhancing the national security the United States, through containment of China and its ruling Chinese Communist Party (CCP). Second, the debate over the definition of state owned enterprise (SOE) is one among many illustrations in the TPP of the link between national security, trade, and containment. The 12 nations negotiating the TPP were aware of this link, and deliberated the definition of ‘SOE’. The TPP excluded the Middle Kingdom from the founding members, while the founders wrote the TPP rules to bind China if it subsequently joined the deal. Chinese SOEs were of concern to them, for bona fide national security reasons, and so also were legitimate sovereign interests in providing goods and services through their own SOEs. The evaluation by America and its 11 TPP partners, as to which entities should be included in the scope of SOE disciplines led to a set of clear rules.

In recent years, China has enacted export restrictions on a range of minerals and other raw materials. They include export quotas, export duties, export licenses, and other administrative actions. Although such export restrictions have already been found to be inconsistent with China's WTO obligations, the practice persists. This article advances an explanation for why this is the case. It argues that the problem lies with the lack of retrospective remedies in WTO dispute settlement. Consequently, China is able to breach its WTO obligations temporarily with minimal consequence. Although such restrictions may have negative consequences for upstream extraction firms, China is able to implement the restrictions because several upstream firms are state-owned enterprises. As a result, China is able to utilize export restrictions on minerals and other raw materials effectively to foster the development of strategic emerging industries downstream. Given existing negotiating standoffs and domestic political constraints, this article suggests that it is unlikely that any potential WTO legal reforms will be enacted any time soon to address this problem.

The Anti-Monopoly Law (AML) of China came into effect in August 2008. In less than a decade, China has made remarkable strides to enforce this law; no other jurisdiction with a competition law system – over 130 to date – comes close to matching China's accomplishments in the first decade of its competition regime. However, China's progress in implementing competition policy remains uncertain.

State-owned enterprises (SOEs) are a major force in the Chinese economy and a growing presence in international trade and investment. The challenge to the WTO legal regime is commercial, given the size of SOEs and their share of Chinese output, and political, given worries that trade and investment by SOEs may be driven by public policy goals. And both challenges may be exacerbated by the murky world of Chinese SOEs. In this article, I first review whether Chinese SOEs are a problem for the WTO, and whether more sunshine on their operations might be a useful discipline. I then ask what we know about SOEs inside the WTO, including in the Trade Policy Review Mechanism. Since the answer is, not much, I consider whether mega-regional trade negotiations offer a better approach. My answer being negative, I finally consider whether an attempt to negotiate a WTO Reference Paper on SOEs might help. I conclude that transparency is likely to be a better discipline on the spillovers associated with SOEs than a search for binding rules, while also helping everyone better understand the efficiency effects.

On 16 March 2017, an International Centre for Settlement of Investment Disputes (ICSID) tribunal chaired by Professor Albert Jan van den Berg, with co-arbitrators Gary Born (Claimant's appointee) and Sir Daniel Bethlehem (Respondent's appointee), issued its award in Eli Lilly and Company v. The Government of Canada (Award). The Award dismissed all of Eli Lilly's claims and ordered it to pay the arbitration costs and 75% of Canada's legal costs and expenses.

On 9 March 2017, an International Centre for Settlement of Investment Disputes (ICSID) tribunal chaired by Professor Lucy Reed, with co-arbitrators Dr. Michael Pryles (Ansung's appointee) and Professor Albert Jan van den Berg (China's appointee) (the Tribunal), issued its award in Ansung Housing Co., Ltd. v. People's Republic of China (the Award). The dispute arose out of Ansung's investment in a golf course and condominium development project in Sheyang-Xian, China. The Award dismissed Ansung's claim and ordered Ansung to pay 75% of China's legal fees and expenses, as well as the direct costs of the proceeding.

The dispute principally concerns the provisional and definitive anti-dumping measures applied by Canada on imports of certain Carbon Steel Welded Pipe (CSWP) from Chinese Taipei.

The dispute concerns the GATT Article XXVIII negotiations of the European Union's (EU) Schedule of Concessions. The EU sought to modify its tariff concessions in respect of certain poultry products. The EU conducted this modification through two separate negotiations. The first round of negotiations were initiated in 2006 and covered the modification of tariff concessions on poultry products falling under HS Codes 0210 99 39, 1602 31, and 1602 32 19 (First Modification Package). The second round of negotiations began in 2009 and pertained to the modification of products falling under HS Codes 1602 20 10, 1602 32 11, 1602 32 30, 1602 32 90, 1602 39 21, 1602 39 29, 1602 39 40, and 1602 39 808 (Second Modification Package). In both rounds, the EU notified its intention to modify its tariff concessions under Article XXVIII of the GATT 1994. It subsequently entered into negotiations with Brazil and Thailand, which it considered to have the required legal interest to enter into these negotiations. The EU reached agreements with Brazil and Thailand and replaced its previous tariff concessions in respect of the tariff rate quotas (TRQs) for certain poultry products.

This dispute concerns an anti-dumping measure imposed by China on imports of cellulose pulp form Canada. Canada specifically challenged the determination of injury made by China's Ministry of Commerce (MOFCOM) in the anti-dumping investigation. MOFCOM applied an ad valorem duty on imports from producers in the investigated countries. It applied anti-dumping duties of 13% on cooperating Canadian producers and 23.7% on all other Canadian producers, except for one producer that was excluded from the investigation due to a de minimis dumping margin.

This dispute concerns China's claims regarding three issues related to certain anti-dumping measures applied by the United States Department of Commerce (USDOC): the use of the weighted average-to-transaction (WA-T) method in dumping margin calculations, the treatment of multiple companies as a non-market economy-wide entity (NME-wide entity), and the way that USDOC determines anti-dumping duty rates for this type of entity and the level of these duty rates.

This dispute arose after African Swine Fever (ASF), a highly contagious disease of pigs, was detected in four member States of the European Union (EU) and Russia stopped accepting imports of pigs and pig products from the EU. The EU presented claims with respect to two measures: (i) the ‘EU-wide ban’, consisting of Russia's ban on the importation of the products at issue from the entire EU; and (ii) the ‘country-specific import bans’ imposed by Russia on imports from the four EU member States – Estonia, Latvia, Lithuania, and Poland. There were two categories of products at issue: ‘treated products’ (finished products subject to a treatment that ensures destruction of ASF) and ‘non-treated products’ (products including live pigs, and raw meat preparations). Treated products were not subject to the EU-wide ban. The EU brought multiple claims under the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement).