Issues of Transparency and Independent Review of Administrative Action

1
Issues of Transparency and Independent Review of
Administrative Action
2
The Issue of Direct Application

• Must Chinas WTO obligations and commitments be
  implemented by national laws and regulations to
  be effective and enforceable in China?
• Para 68, WPAC and post-accession PRC insurance
  regulations suggest that Chinas WTO obligations
  and commitments may have direct application
• However, new SPC ltProvisions on Certain Questions
  re Hearing of International Trade Administrative
  Casesgt appear to rule out direct application

3
Guidance Note

• Working Party Report (WPAC) commitments by China
  
• See Article 2, CPA and Paragraph 342, WPAC

4
The Question of Transparency

• Article X, GATT 94, Article III, GATS , CPA
  require transparency
• Contrary to Chinese patterns of governance
• Neibu wenjian and neibu guiding
• Government qua government practices
• No official central collection of laws and
  regulations

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• Paragraph 2C, CPA requires China to take certain
  steps
• Only enforce published laws, regulations and
  other measures
• Establish official journal for publication of
  laws
• Designate a central inquiry point where all
  information re laws, etc may be obtained
• Provide opportunity for advance notice and
  comment
• Designate institutions where complaints can be
  filed re lack of uniform and impartial
  administration of law

6

• What is being done by China to fulfill these WTO
  commitments?
• Gazettes have been established for several years
  (e.g., State Council, NPC Standing Committee,
  Supreme Court, MOFTEC)
• www.moftec.gov.cn however, no effective central
  inquiry point or journal established to date
• Recently created MOFTEC departments
• Department of WTO Affairs
• China-WTO Notification Inquiry Centre
• Fair Trade Bureau for Imports and Exports
• Establishment of offices for complaints in local
  COFTECs (e.g., Beijing Foreign Economic and Trade
  Commission)

7
Independent Review of Administrative Action

• GATT, Article X, GATS, Article VI and other WTO
  agreements mandate establishment of independent
  judicial or other tribunals to review
  administrative decisions
• Judicial review mandated in
• Anti-Dumping Agreement
• TRIPS
• Judicial review covered in Paragraph 2D of the
  CPA

8
Different Systems of Governance

• WTO pre-supposes separation of powers
• WTO pre-supposes effective, independent judiciary
• WTO permits use of administrative tribunals

• China has a unified administrative system of
  governance
• China has a weak judiciary subject to external
  influences
• China has more effective administrative agencies

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• Judicial Review vs Administrative Reconsideration
• Judicial review under Chinese law is ordinarily
  associated with administrative litigation
  involving resort to the Peoples Courts
• Judicial review is governed by the Administrative
  Litigation Law (ALL)
• Administrative review is conducted by higher
  administrative organs ordinarily of the same
  bureaucracy
• Administrative review is governed by the
  (Administrative Review Law) (ARL)
• The Problem of Scope of Review

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• WTO would recognize either administrative
  litigation or administrative review provided
  they are independent
• However, draft Protocol (paragraph 2D) requires
  access to a judicial body in all appellate
  cases

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• The Problem of Scope of Review
• Chinese courts have very limited review powers
• Chinese courts may only review
• concrete administrative acts
• involving a limited range of grounds, such as
  error in application of law or ultra vires acts
• No significant power to interpret or review
  administrative rules or regulations (so-called
  abstract administrative acts)
• No significant power to review exercise of
  administrative discretion

12

• There does not seem to be a current
  WTO-compatible mechanism in place by which PRC
  administrative rules and regulations may be
  challenged
• Moreover, problems of enforcement against State
  administrative agencies may persist