Content uploaded by Heng Wang
Author content
All content in this area was uploaded by Heng Wang on Nov 24, 2020
Content may be subject to copyright.
1
How to Assess Regional Trade Agreements? Deep FTAs v. China’s Trade Agreements
Heng Wang
The International Lawyer, Volume 54, Issue 2 (2021, forthcoming)
Abstract: Regional trade agreements are undergoing many changes. Notably, the trajectory
of China’s trade agreements has been affected by the unique US-China Phase One agreement,
and these agreements extend beyond free trade agreements (FTAs). China’s trade agreements
represent a different path forward from that mapped out by deep FTAs (e.g., the CPTPP) in
respect of the future of trade law. This paper analyses two crucial but underexplored
questions: What are the approaches behind deep FTAs and China’s trade agreements? How
can we assess trade agreements (particularly China’s trade agreements)?
The article critically reviews China’s trade agreements and deep FTAs. Based on in-depth
comparative study, it argues that China’s trade agreements adopt an early harvest approach,
which contrasts starkly with the regulatory plowing approach found in deep FTAs. It further
proposes a tripartite theoretical framework with six indicators to assess trade agreements in
terms of their impacts on domestic regulation. It theorizes about three crucial variables of
trade agreements: (i) breadth (regulatory outreach) with two indicators (WTO-plus and
WTO-beyond rules); (ii) depth (regulatory density) with two indicators (regulatory
cooperation and coherence, and domestic law changes); and (iii) strength (rule use intensity)
with two indicators (state-to-state dispute settlement (SSDS) rules, and SSDS coverage). This
framework provides key insights into the significant heterogeneity and rationales behind
trade agreements. It is critical to the in-depth analysis of evolving trade agreements and their
implications, and supports the thorough assessment of the merits of different agreements in
future research.
Key words: Phase One agreement, China’s FTAs, free trade agreements, deep FTAs,
breadth, depth, strength
I. Introduction .................................................................................................................. 2
II. Different approaches behind deep FTAs and China’s trade agreements: Regulatory
plowing v. Early harvest ............................................................................................................ 4
A. Deep FTAs: Regulatory plowing .......................................................................... 4
B. China’s trade agreements: Early harvest............................................................... 5
III. Breadth: Regulatory Outreach ..................................................................................... 8
A. WTO-plus rules ..................................................................................................... 8
1. Overview ........................................................................................................ 8
Professor and Co-Director of Herbert Smith Freehills CIBEL (China International Business
and Economic Law) Centre, Faculty of Law, the University of New South Wales. Email:
heng.wang1@unsw.edu.au. Part of this paper was presented at the Workshop on “The New
Plurilateralism: The Emerging Standard for Global Economic Governance?” held by
Warwick Law School and Monash Law School in 2017. Many thanks to Markus Wagner,
Caroline Henckels, David A. Gantz, Pasha L. Hsieh, Simon Lester, Francine Hug, and
Heloisa Pereira Chikusa for the insightful comments. The author is grateful to the UNSW
Law’s Herbert Smith Freehills CIBEL Centre for the support, to the European University
Institute for the Fernand Braudel Senior Fellowship during which he worked on this paper,
and to Jürgen Kurtz as the host. Special thanks go to Melissa Vogt and Hamish Collings-
Begg for their valuable research assistance and comments.
2
2. Case study: E-commerce, trade facilitation and IP ...................................... 10
B. WTO-beyond rules .............................................................................................. 12
IV. Depth: Regulatory Density ........................................................................................ 14
A. Regulatory cooperation and coherence ............................................................... 15
1. Deep FTAs ................................................................................................... 15
2. China’s FTAs ............................................................................................... 17
3. The Phase One agreement ........................................................................... 18
B. Domestic law change .......................................................................................... 19
1. Deep FTAs ................................................................................................... 19
2. China’s trade agreements ............................................................................ 20
V. Strength: Rule Use Intensity ...................................................................................... 22
A. Rules on state-to-state dispute settlement ........................................................... 22
1. Deep FTAs ................................................................................................... 22
2. China’s trade agreements ............................................................................ 23
B. The scope of dispute settlement .......................................................................... 24
1. Deep FTAs ................................................................................................... 24
2. China’s trade agreements ............................................................................ 25
VI. Concluding remarks ................................................................................................... 26
I. Introduction
Regional trade agreements come in various different forms, including free trade
agreements (FTAs) and agreements like the 2020 US-China Phase One agreement
1
(Phase
One agreement). These agreements have now played an increasingly important role due to
the stagnation of the World Trade Organization (WTO), in part due to the dysfunction of its
Appellate Body. The assessment of regional trade agreements is crucial due to the major
impacts they have on the parties, and the spill over effects they may have on non-parties (e.g.,
trade diversion). This is important for better understanding the trade approaches of different
states, since they cover crucial issues ranging from investment to intellectual property (IP).
Such an assessment is also particularly timely as trade agreements are in flux and fast
changing. To illustrate, the Phase One agreement is unprecedented among the trade
agreements signed by the US and China. The United States Trade Representative (USTR)
Robert Lighthizer described the Phase One agreement is unique as “the first agreement like
this of its kind.”
2
The Phase One agreement, regardless of questions as to its future operation,
is also crucial to understanding the approaches of the US and China. All these factors add
urgency to assessing trade agreements based on in-depth comparative study, which has to
date received insufficient attention.
Trade agreements can be separated into two major categories: deep and shallow. This
paper focuses on deep FTAs and China’s trade agreements as the representative examples of
these two categories of trade agreements. Deep FTAs predominantly set out rules and tackle
wide-ranging, behind-the-border issues (e.g., the harmonization of national regulations
1
US-China Economic and Trade Agreement (2020).
2
Kevin Freking & Paul Wiseman, Read the Full U.S.-China ‘Phase 1’ Trade
Agreement(2020), available at https://www.pbs.org/newshour/economy/read-the-full-u-s-
china-phase-1-trade-agreement.
3
concerning services, labor and the environment).
3
They range from the Trans-Pacific
Partnership (TPP) that has developed into the Comprehensive and Progressive Agreement for
Trans-Pacific Partnership (CPTPP), to the EU-Canada Comprehensive Economic and Trade
Agreement (CETA) and the United States–Mexico–Canada Agreement (USMCA).
Shallow trade agreements mainly address border measures, particularly tariff barriers and
quotas.
4
China’s trade agreements, consisting of FTAs and the Phase One agreement, are
largely shallow, and differ markedly from those concluded by major developed economies.
The fast-changing trade agreements, including their differences, complexity and rationale,
have not been fully explored in the literature. In particular, an analytical framework for
regional trade agreements is lacking and such a framework is crucial for at least three
reasons. First, there is a critical need for a theoretical framework to measure trade
agreements, including new kinds of agreements like the Phase One agreement that focuses on
measurable market access outcomes and unilateral enforcement.
5
Such a framework provides
key insights into the significant heterogeneity and real differences that lie beneath the
substantial textual differences between trade agreements. It focuses our attention on what
really matters when looking at trade agreements, and support analysis of the effects of these
agreements. This is crucial for the public and private stakeholders to clearly understand trade
agreements. Second, an analytical framework is critical for the preparation of negotiations in
respect of new trade agreements, such as by enhancing understanding of potential partners’
commitments in their trade agreements, awareness of best practices and areas where practices
diverge or converge across different actors, and identification of gaps between domestic law
and trade agreements.
6
Third, an analytical framework can support various states in designing
and adjusting their trade agreement models and approaches.
This paper will analyse the following two crucial questions: What are the approaches
behind China’s trade agreements and deep FTAs? How can we assess trade agreements
(particularly China’s trade agreements and deep FTAs)? The paper proposes a tripartite
theoretical framework with various indicators to assess trade agreements in terms of their
impact on domestic regulation, and applies this framework to China’s trade agreements and
deep FTAs. The analytical framework would allow for the categorization of different types of
trade agreements, and a clear understanding of the rationale behind the differences. This
would then lay a solid foundation for future research on the actual merits of the different
types of agreements.
This article argues that China’s trade agreements reflect an early harvest approach while
deep FTAs are concerned with regulatory plowing (Part II). The following crucial differences
are further explained under the theoretical framework which explores three crucial variables
of trade agreements (Parts III to V): (i) breadth (indicators: WTO-plus obligations that are
stricter than WTO obligations, and WTO-beyond rules that address issues outside the WTO
aegis); (ii) depth (indicators: regulatory cooperation and coherence, and domestic law
changes); and (iii) strength (indicators: state-to-state dispute settlement (SSDS) rules, and
SSDS coverage). These factors and indicators are considered as they are crucial elements of
3
World Bank, Regional Trade Agreements(2018), available at
https://www.worldbank.org/en/topic/regional-integration/brief/regional-trade-
agreements;World Trade Organization, World Trade Report 2011, 9, 45, 110 (2011).
4
Josh Ederington & Michele Ruta, Non-Tariff Measures and the World Trading System,
POLICY RESEARCH WORKING PAPER 7661, 2 (2016);World Trade Organization, 9 (2011).
5
Heng Wang, Selective Engagement? Future Path for US-China Economic Relations and Its
Implications, 55 JOURNAL OF WORLD TRADE (2021 forthcoming).
6
Aaditya Mattoo, et al., Overview: The Evolution of Deep Trade Agreements, in HANDBOOK OF
DEEP TRADE AGREEMENTS 24, (Aaditya Mattoo, et al. eds., 2020).
4
trade agreements in terms of their coverage, content and implementation, respectively. They
assess trade agreements’ rule development, their implications for domestic law, and the
strength of rules through dispute settlement.
This paper analyses representative examples to support the framework explanation. The
TPP (and CPTPP) and China-Korea FTA, the negotiations for both of which were concluded
in 2015, are the exemplars of deep and Chinese FTAs. This distinction is instructive, as the
CPTPP is arguably the most adequate benchmark for assessing the striking difference
between deep and shallow integration: it has the largest membership coverage among deep
FTAs and still largely serves as the basis of the US’ future trade negotiations.
7
The USMCA
builds on the CPTPP. For instance, both are similar in terms of the core regulatory coherence
provision of regulatory impact assessment.
8
The China-Korea FTA is one of the highest-
level
9
trade agreements of China, although there is a huge gap between China’s FTAs and
deep FTAs. For instance, the China-Korea FTA is the first Chinese FTA to cover electronic
commerce.
10
It was also deemed to be the biggest free trade deal signed by China,
11
and
“involve[e] the largest trade value and most comprehensive areas.”
12
Other agreements are
referred to when appropriate, since these two FTAs do not represent the entirety China’s
trade agreements and deep FTAs practice.
13
This paper, however, does not focus on the
particular value or merits of the different rules adopted across agreements. This is a question
deserving of separate legal, economic and social analysis.
II. Different approaches behind deep FTAs and China’s trade agreements:
Regulatory plowing v. Early harvest
As a starting point, it is important to first explore the nature of trade agreements by
developing a useful analytical framework to better understand various trade agreements, their
differences and the underlying rationale. Deep FTAs and China’s trade agreements arguably
sit at two ends of a spectrum in terms of their approach: on one end, regulatory plowing, as
seen in deep FTAs; and, on the other end, early harvesting, as adopted in China’s trade
agreements. A. Deep FTAs: Regulatory plowing
Deep FTAs adopt an approach of regulatory plowing: they (i) set new standards in new
areas to constrain regulatory latitude (breadth); (ii) often address regulatory heterogeneity and
7
Heng Wang, The Future of Deep Free Trade Agreements: The Convergence of TPP (and
CPTPP) and CETA?, 53 JOURNAL OF WORLD TRADE 317, 318-319 (2019).
8
CPTPP Article 25.5;USMCA Article 28.11.
9
Si-qi Li, et al., Progress and Implications of the China-Korea FTA, 31 KOREA’S ECONOMY
13(2017).
10
Heng Wang, The Features of China’s Recent FTA and Their Implications: An Anatomy of
the China–Korea FTA, 11 ASIAN JOURNAL OF WTO & INTERNATIONAL HEALTH LAW &
POLICY 115, 120 (2016).
11
Yonhap, S. Korea, China Formally Sign Free Trade Deal(2015), available at
http://english.yonhapnews.co.kr/national/2015/06/01/95/0301000000AEN201506010015523
20F.html.
12
China FTA Network, China-ROK FTA Negotiations Completed(2015), available at
http://fta.mofcom.gov.cn/enarticle/enrelease/201503/20754_1.html.
13
For the differences of deep FTAs and the underlying reasons, see, e.g., Wang, JOURNAL OF
WORLD TRADE, 341-342 (2019).
5
endeavor to be “transformative FTAs” that regulate trade far beyond WTO rules (depth);
14
and (iii) subject most FTA obligations to strong enforcement (strength).
Foremost, regulatory plowing means that deep FTAs feature comprehensive regulations
and standards (e.g., streamlined regulations) in areas particularly goods, services, IP,
investment and capital, which contrasts with selective market access for goods and services
under shallow agreements.
15
Deep FTAs aim for “integration beyond trade or deep
integration.”
16
Second, regulatory plowing essentially addresses coordination externalities (the
multiplicity of national policies and measures) through deep FTAs.
17
It substantially
constrains regulatory latitude. Taking e-commerce as an example, the CPTPP e-commerce
chapter addresses various systematic regulatory issues ranging from the prohibition of data
server localization requirements
18
to the equal treatment of digital content.
19
Relatedly, the
TPP highlights IP enforcement in the digital context and is the first FTA signed by the US
that explicitly requires most enforcement measures to be available “in the digital
environment”.
20
Third, the effects of regulatory plowing are twofold. Deep agreements promote global
value chains (GVCs) by “access and assurances in terms of border and domestic regulations,
investment and capital flows, transport and infrastructure, IP protection and overall good
governance”(“make things”).
21
If properly managed, deep FTAs also provide public goods
(e.g., transparency), many of which may benefit outsiders.
22
Publication provides a prime
example. Deep FTAs contain requirements on the reasonable time between the publication
date and effective date of laws,
23
and requirements on the publication place and timing of the
regulation, including its purpose and rationale,
24
amongst others. Notably, the requirements
here affect the content of the publications, by requiring publishing of purpose and rationale to
the extent possible. B. China’s trade agreements: Early harvest
China’s trade agreements reflect an early harvest approach, as seen in their low level of
breadth, depth, and strength. First, early harvest refers to shallow agreements that focus more
on “reciprocal exchanges” of market assess commitments (e.g., tariff cuts) than systematic
regulatory disciplines.
25
An early harvest approach is also reflected in shallow agreements
under which states are permitted greater leeway in setting domestic policy only subject to
14
Ernst-Ulrich Petersmann, CETA, TTIP, and TiSA: New Trends in International Economic
Law, in MEGA-REGIONAL TRADE AGREEMENTS: CETA, TTIP, AND TISA 34, (2017).
15
Joost Pauwelyn, Taking the Preferences Out of Preferential Trade Agreements: TTIP as a
Provider of Public Goods?, in THE POLITICS OF TRANSATLANTIC TRADE NEGOTIATIONS : TTIP IN A
GLOBALIZED WORLD 188, 189, (Jean-Frédéric Morin, et al. eds., 2015).
16
Mattoo, et al., 3. 2020.
17
Ederington & Ruta, POLICY RESEARCH WORKING PAPER 7661, 55 (2016).
18
CPTPP Article 14.13.2.
19
Id. at, Article 14.4.
20
TPP Article 18.71.2;Gina M. Vetere, et al., What’s New in the TPP’s Intellectual Property
Chapter(2015), available at https://www.globalpolicywatch.com/2015/11/whats-new-in-the-
tpps-intellectual-property-chapter/.
21
Pauwelyn, 188. 2015.
22
Id. at, 189-194.
23
TPP Article 26.2.3.
24
Id. at, Article 26.2.4, 26.2.5.
25
Pauwelyn, 187. 2015.
6
limited overriding rules.
26
The Phase One agreement reflects selective engagement that
focuses on market access (measurable target outcome and targeted regulatory discipline) and
delegalized implementation.
27
China’s FTAs are conservative in ambition and coverage.
28
They often provide for non-discrimination treatment and reciprocity, but do not “interven[e]
in domestic economic policies beyond this requirement.”
29
The new development of China’s
FTAs is softened by weak obligations. China’s FTAs contain “chapters of a regulatory nature
but solely with ‘best endeavours’ and mere cooperative intentions” beyond WTO rules.
30
For
WTO-plus and WTO-beyond issues, China’s FTAs are closer to a legal inflation approach
(i.e., a relatively substantial number of areas covered by the pact, while very few of them
include enforceable obligations) than a functionalist approach (aimed at guaranteeing the
enforceability of selected policy areas).
31
E-commerce provides a good example. China’s FTAs do not address many major
regulatory issues provided for in deep FTAs, including data flow; consumer protection;
mandated transfer of source code; unsolicited commercial electronic messages; cybersecurity;
the principle of open networks; privacy; non-discrimination in e-commerce; amongst
others.
32
For crucial four digital-trade-related policy objectives (cybersecurity, online
consumer protection, personal data protection, and privacy), China’s FTAs keep quiet (on
cybersecurity), refer to WTO exceptions (on privacy) or call for domestic frameworks (on
online consumer protection, and personal data protection), which contrasts with the
regulatory provisions in the US and EU FTAs.
33
Overall, China’s FTAs highlight digital trade
facilitation given the prominence of China-based e-commerce platforms selling goods, which
contrasts with deep FTAs’ substantive e-commerce chapters covering various regulatory
issues (ranging from online consumer protection to privacy).
34
China’s early harvest
approach in e-commerce may be attributable to, inter alia, the effects of regulatory disciplines
on behind-the-border measures and the constraint of “right-oriented” rules on regulatory
powers.
35
Second, early harvest essentially involves standard forms of coordination under shallow
agreements to address terms-of-trade externalities,
36
which means states use restrictions
(particularly tariffs) to “shift the cost of protecting a domestic industry onto foreign producers
26
Ederington & Ruta, POLICY RESEARCH WORKING PAPER 7661, 38 (2016).
27
Wang, JOURNAL OF WORLD TRADE, (2021 forthcoming).
28
Dilip K. Das, Ripening Regional Economic Architecture in Asia, CSGR WORKING PAPER
277/13, 9 (2013).
29
World Trade Organization, 110 (2011).
30
JACQUES PELKMANS, et al., TOMORROW’S SILK ROAD: ASSESSING AN EU-CHINA FREE
TRADE AGREEMENT 9 (Rowman & Littlefield International. 2016).
31
Henrik Horn, et al., Beyond the WTO? An Anatomy of EU and US Preferential Trade
Agreements, 33 THE WORLD ECONOMY 1565, 1580 (2010).
32
Ines Willemyns, Agreement Forthcoming? A Comparison of EU, US, and Chinese RTAs in
Times of Plurilateral E-Commerce Negotiations, JOURNAL OF INTERNATIONAL ECONOMIC LAW 1, 5,
10 (2020).
33
Id. at, 19-20.
34
Id. at, 21.
35
Jie Huang, Comparison of E-commerce Regulations in Chinese and American FTAs:
Converging Approaches, Diverging Contents, and Polycentric Directions?, 64 NETHERLANDS
INTERNATIONAL LAW REVIEW 309, 323, 332, footnote 113 (2017).
36
Ederington & Ruta, POLICY RESEARCH WORKING PAPER 7661, 55 (2016).
7
by altering the terms of trade.”
37
Trade agreements remove trade barriers to internalize
externalities that states impose on each other.
38
This is terms-of-trade liberalization, which is
often reflected in market access commitments (such as tariff cuts that avoid trade war and
retaliatory tariffs) to escape the prisoner’s dilemma.
39
Early harvest does not substantially
constrain regulatory latitude, which predominantly concerns behind-the-border measures.
Instead, tariff cuts are the major achievement of China’s FTAs, and it is observed that
China’s FTAs prefer a “quid pro quo approach to negotiation.”
40
The Phase One agreement also reflects efforts to mitigate prisoner’s dilemma, and features
short-term objectives and short-form rules. As the low-hanging fruits of trade negotiations, it
contains two major components: (i) China’s purchase commitments that embody managed
trade; and (ii) the reduction of targeted non-tariff measures (NTMs). It addresses prioritized
market access issues, instead of addressing long-term regulatory issues and setting systematic
rules. The early harvest approach can be compared with Mexico, whih provides a good
example. As a developing country, Mexico has four principles in its USMCA negotiations
with the US: (i) enhanced regional competitiveness through trade barrier reduction,
investment promotion, regulatory improvements, and preferred market entry; (ii) improved
rule inclusiveness and sustainability (through new generation rules on labor, environment,
small and medium size enterprises (SMEs), anti-corruption, and so on); (iii) technology-
friendly rules (e.g., new rules on IP, digital trade, and financial technologies); and (iv)
enhanced predictability of the business environment (through strengthened dispute settlement
processes and rules on state-owned enterprises (SOEs), competitiveness and government
procurement).
41
Most of these objectives are absent in the Phase One agreement, particularly
the fundamental factors of rule inclusiveness and sustainability, and the predictability of the
business environment.
Third, the effects of early harvest include, primarily, the “‘trade creation’ versus ‘trade
diversion’ effect” (“you’re-in-or-you’re-out”, “sell things”) under shallow agreements.
42
Compared with deep FTAs, this effect is more obvious under early harvest given its focus on
selective market access. This explains the concerns about possible trade diversion under the
Phase One agreement.
43
Early harvest often cannot fully address policy substitution in
shallow agreements whereby states retract the effects of negotiated tariff concession by
37
Rodney D. Ludema & Anna Maria Mayda, Do Terms-of-Trade Effects Matter for Trade
Agreements? Theory and Evidence From WTO Countries, 128 THE QUARTERLY JOURNAL OF
ECONOMICS 1837, 1838 (2013).
38
Asrat Tesfayesus, Liberalization Agreements in the GATT/WTO and the Terms-of-trade
Externality Theory: Evidence from Three Developing Countries, 24 REVIEW OF INTERNATIONAL
ECONOMICS 1000, 1000, 1022 (2016).
39
Ederington & Ruta, POLICY RESEARCH WORKING PAPER 7661, 49 (2016);Tesfayesus, REVIEW OF
INTERNATIONAL ECONOMICS, 1002, 1006, 1007, 1022 (2016).
40
Qingjiang Kong, China’s Uncharted FTA Strategy, 46 JOURNAL OF WORLD TRADE 1191, 1196
(2012).
41
Amrita Bahri & Monica Lugo, Trumping Capacity Gap with Negotiation Strategies: the
Mexican USMCA Negotiation Experience, 23 JOURNAL OF INTERNATIONAL ECONOMIC LAW 1, 4
(2020).
42
Pauwelyn, 187. 2015.
43
See, e.g., Naomi Powell, 'Canada Should Be Worried': Canadian Exporters May Become
Collateral Damage of U.S-China Trade Deal, Financial Post(2020), available at
https://business.financialpost.com/news/economy/canada-should-be-worried-canadian-
exporters-may-become-collateral-damage-of-u-s-china-trade-deal.
8
“utilizing alternate policies as a secondary trade barrier”, as seen with NTMs.
44
The three
fundamental differences between regulatory plowing and early harvest will be further
explored under the tripartite framework in the following sections: breath, depth and strength.
The following sections will compare deep FTAs and China’s trade agreements, and set off
the factors of the analytical framework.
III. Breadth: Regulatory Outreach
The breadth of trade agreements refers to their regulatory outreach. Regulatory outreach is
the “extensive” margin and reflects the policy areas covered by trade agreements.
45
WTO
agreements provide a useful threshold. Regulatory outreach could be measured in two
dimensions: (i) WTO-plus provisions (also termed as “WTO+”
46
) that are stricter
commitments than or add to WTO obligations, like enhanced transparency rules; and (ii)
WTO-beyond obligations (also termed as “WTO-extra” or “WTO-X”)
47
that address issues
not dealt with under the WTO and outside the WTO aegis, like those on labor market
regulations, the environment and measures on asylum.
48
Featuring these rules, deep FTAs
address “a larger set of policy areas, at the border and behind the border”,
49
and have much
broader breadth than China’s agreements. The China-Korea FTA, as probably the most
developed Chinese FTA, meanwhile, is “far from best” regarding the scope of its
obligations.
50
Moreover, China’s FTAs contain “many carve-outs for sensitive sectors and are
characterized by a low level of legal obligations.”
51
Breadth and depth are two inter-related sides of one coin. Extended outreach may also
demand creating new and more sophisticated regulatory mechanisms.
52
WTO-plus and WTO-
beyond obligations (e.g., enhanced transparency rules) also quantify the depth of
agreements.
53
To illustrate, regulatory coherence is provided in the CPTPP but not China’s
trade agreements, reflecting the former’s broader breadth. Meanwhile, regulatory coherence
deepens the CPTPP through, inter alia, the adoption of good regulatory practices that
profoundly affect domestic regulation. Not surprisingly, an FTA could be broad and deep.
For instance, the USMCA and Australia–Singapore FTA are both the “deepest and most
comprehensive” e-commerce FTAs to date.
54
A. WTO-plus rules
1. Overview
Deep FTAs develop a large number of WTO-plus obligations, many of which are absent
in China’s trade agreements. Deep FTAs set rules at a higher level across WTO-covered
areas and go substantially beyond WTO law. Deep FTAs drive down trading costs by
44
Ederington & Ruta, POLICY RESEARCH WORKING PAPER 7661, 34 (2016).
45
World Trade Organization, 9 (2011).
46
Horn, et al., THE WORLD ECONOMY, 1567 (2010).
47
Id. at.
48
World Trade Organization, 11 (2011).
49
World Bank. 2018.
50
Jeffrey J. Schott, et al., An Assessment of the Korea-China Free Trade Agreement 1 (The
Peterson Institute for International Economics 2015).
51
Ka Zeng, Introduction to the Handbook on the International Political Economy of China,
in HANDBOOK ON THE INTERNATIONAL POLITICAL ECONOMY OF CHINA (Ka Zeng ed. 2019).
52
World Trade Organization, 110 (2011).
53
Horn, et al., THE WORLD ECONOMY, 1569 (2010).
54
Willemyns, JOURNAL OF INTERNATIONAL ECONOMIC LAW, 21 (2020).
9
“limiting or coordinating” NTMs through at least two types of WTO-plus rules: (i) rules on
behind-the-border measures (e.g., regulations and standards on financial services and
telecommunication, IP), and (ii) “good governance-type” requirements in areas like
transparency, customs administration, and trade facilitation.
55
To illustrate, the US and EC
FTAs have a high degree of similarity regarding the coverage of WTO plus areas,
56
going
beyond China’s trade agreements. These deep FTA rules range from those on sanitary and
phytosanitary (SPS) issues (e.g., streamlined approval processes,
57
often lacking in China’s
agreements) to government procurement (WTO-plus government procurement disciplines,
while the negotiations on government procurement under China’s FTAs will start after
China’s accession to the Agreement on Government Procurement).
China’s FTAs are WTO-style agreements in WTO-covered areas, and spill much more ink
over traditional trade of goods and services than other areas.
58
There is path dependence in
China’s FTAs, which closely follow WTO law. WTO norms have made limited progress in
promoting further cooperation on new policy issues to address the spillover effects of
domestic regulation on international commerce.
59
To illustrate, the WTO system takes a
shallow integration approach to product standards featured predominantly by the national
treatment principle.
60
China’s FTAs have a limited number of WTO-plus disciplines that
clarify or develop targeted WTO rules. For example, in e-commerce, Chinese FTAs limit
their scope mainly to clarifying WTO obligations (including reiterating the WTO moratorium
on electronic transmission and GATS exceptions) and focus on e-commerce promotion (trade
in goods facilitated by the Internet).
61
Concerning anti-dumping investigations, often faced by
Chinese exports, the China-Korea FTA calls for no use of surrogate price or surrogate cost in
determining normal value and export price.
62
The Phase One agreement contains more sectoral WTO-plus rules than China’s FTAs. For
technology transfer, it goes beyond China’s WTO accession commitment that “any other
means of approval for importation . . . or investment” shall not be conditioned on technology
transfer.
63
China agrees to prohibit forced technology transfer as a precondition of
administrative approvals, market entry, or receiving advantages from the government.
64
The
Phase One agreement prohibits the support of outbound investments aimed at acquiring
foreign technology pursuant to industrial plans that create distortion.
65
Both provisions are
unprecedented in international agreements signed by China.
66
Due process and transparency
55
Pauwelyn, 188. 2015.
56
Horn, et al., THE WORLD ECONOMY, 1575 (2010).
57
CETA – Summary of the Final Negotiating Results. (2016).
58
Axel Berger, Investment Rules in Chinese Preferential Trade and Investment Agreements:
Is China Following the Global Trend Towards Comprehensive Agreements? at
https://www.die-gdi.de/uploads/media/DP_7.2013.pdf.
59
Bernard Hoekman & Petros C. Mavroidis, Regulatory Spillovers and the Trading System:
From Coherence to Cooperation, 1 (2015).
60
Ederington & Ruta, POLICY RESEARCH WORKING PAPER 7661, 52-53 (2016).
61
Willemyns, JOURNAL OF INTERNATIONAL ECONOMIC LAW, 7, 16, 20 (2020).
62
China-Korea FTA Article 7.7.4 (2015).
63
World Trade Organization, Protocol on the Accession of the People's Republic of China
Section 7.3 (2001).
64
US-China Economic and Trade Agreement Article 2.3.2. 2020.
65
Id. at, Article 2.1.3.
66
Jyh-An Lee, Shifting IP Battlegrounds in the U.S.–China Trade War, 43 THE COLUMBIA
JOURNAL OF LAW & THE ARTS 147, 174-175 (2020).
10
are required for the enforcement of laws, regulations and administrative proceedings.
67
In
agriculture, the Phase One agreement provides for China’s increased acceptance of
international standards.
68
It also provides for streamlined procedures and improved efficiency
regarding audits and inspections for dairy products and infant formula.
69
However, the
coverage of the WTO-plus rules in the Phase One agreement is limited to selective areas
(particularly IP, agriculture and technology transfer) and much narrower than deep FTAs.
Outside these prioritized narrow areas, the Phase One agreement contains few WTO-plus
obligations.
2. Case study: E-commerce, trade facilitation and IP
E-commerce, trade facilitation and IP provide key illustrations of the differences between
Chinese and deep trade agreements. E-commerce is an area in which China is playing a
leading role, and trade facilitation is an area prioritized by China, which has shared interests
with developed economies in terms of reducing trading costs. IP is a major issue in both
Chinese and deep trade agreements.
China has cautiously adopted e-commerce-related FTA rules since 2003, in contrast with
considerable WTO-plus rules in US FTAs’ e-commerce chapters.
70
As discussed above, deep
FTAs contain detailed regulatory rules such as the prohibition of data server localization
requirements and the equal treatment of digital content. China’s FTAs focus on trade
facilitation instead of strict regulatory disciplines, and lack many WTO-plus rules in deep
FTAs (e.g., the CPTPP, KORUS FTA and Australia-US FTA (AUSFTA)). The three-page
China-Korea FTA e-commerce chapter only addresses five major issues (the support of
electronic authentication and signatures,
71
and non-imposition of duties on electronic
transmissions,
72
paperless trading,
73
personal information protection,
74
and regulatory
cooperation
75
). Most of these rules, like electronic authentication and signatures, and
paperless trading, fall within digital trade facilitation.
76
The Phase One agreement lacks e-commerce rules except for several IP-related aspects
(online infringement and infringement on e-commerce platforms
77
). It provides for a notice
and takedown system to address online piracy and counterfeiting, in which it eliminates
liability for erroneous takedown notices submitted in good faith, and penalizes notices and
counter-notifications submitted in bad faith.
78
The lack of e-commerce rules is partially due
to the gap between the US and China on crucial issues like data flow.
Even in customs administration, an area in which China’s FTAs are close to deep FTAs,
the rules are rather different. Deep FTAs and the China-Korea FTA provide for simplified
67
US-China Economic and Trade Agreement Article 2.4. 2020.
68
See, e.g., id. at, Chapter 3, Annex 4, paragraph 5.
69
Id. at, Chapter 3, Annex 2, paragraph 4(b).
70
Willemyns, JOURNAL OF INTERNATIONAL ECONOMIC LAW, 5, 7 (2020).
71
China-Korea FTA Article 13.3. 2015.
72
Id. at, Article 13.4.
73
Id. at, Article 13.6.
74
Id. at, Article 13.5.
75
Id. at, Article 13.7.
76
Willemyns, JOURNAL OF INTERNATIONAL ECONOMIC LAW, 3 (2020).
77
US-China Economic and Trade Agreement Article 1.14. 2020.
78
Id. at, Article 1.13.2.
11
customs procedures for the efficient release of goods.
79
The Phase One agreement does not
contain such provisions on customs administration. Deep FTAs develop new rules on trade
facilitation,
80
which go beyond the WTO Agreement on Trade Facilitation (TFA). Shown in
the total page numbers of the respective chapter on customs administration and trade
facilitation, deep FTAs (USMCA 24 pages and CPTPP 10 pages) contain more detailed and
stringent obligations than the China-Korea FTA with its 7 pages. As an illustration, the TPP
is more stringent in requiring express shipments to be normally released within six hours
after submission of customs documents and provided the shipment has arrived.
81
The
USMCA requires, inter alia, online publication (e.g., web links to current customs duties, fees
and charges, including when the fee or charge applies, and the amount or rate),
82
a
mechanism to regularly communicate with traders on the procedures related to the
importation, exportation, and transit of goods,
83
and uniform procedures throughout its
territory for the issuance of advance rulings, including a detailed description of the
information required to process a ruling application.
84
Concerning IP, China’s FTAs have weaker coverage than deep FTAs, or follow the
features of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS Agreement).
85
China’s FTAs make limited progress in respect of TRIPS-plus
obligations. The WTO-plus rule on genetic resources, traditional knowledge and folklore in
the China-Australia FTA (ChAFTA) is one example. The possible measures on genetic
resources, traditional knowledge and folklore are subject to both international obligations and
domestic law.
86
Regulatory latitude is nearly unaffected as the obligation is subject to
domestic law.
Regarded as representing high standards,
87
the TRIP-plus provisions of the Phase One
agreement narrow the differences with deep FTAs and go far beyond China’s FTAs in length
and magnitude.
88
IP rules probably represent the deepest disciplines within the Phase One
agreement, and provide an excellent example to compare with deep FTAs. On the one hand,
the Phase One agreement substantially expands the coverage of IP issues to include new
issues (like electronic intrusions
89
and the permission of patent applicants to rely on
79
China-Korea Free Trade Agreement Officially Signed(2015), available at
http://big5.mofcom.gov.cn/gate/big5/fta.mofcom.gov.cn/enarticle/enrelease/201506/21934_1.
html;CPTPP Article 5.10.1;CETA Article 6.3.1.
80
Caroline Freund, Other New Areas: Customs Administration and Trade Facilitation,
Anticorruption, Small and Medium-Sized Enterprises, and More, in ASSESSING THE TRANS-
PACIFIC PARTNERSHIP, VOLUME 2: INNOVATIONS IN TRADING RULES 67-68, (Jeffrey J. Schott
& Cimino-Isaacs Cathleen eds., 2016).
81
CPTPP Article 5.7.1.
82
Singapore Fintech Fest Showcases Innovations in Payments(2018), available at
https://www.finextra.com/newsarticle/32959/singapore-fintech-fest-showcases-innovations-
in-payments.
83
Id. at, Article 7.3.2.
84
Id. at, Article 7.5.5.
85
Schott, et al., 13. 2015.
86
ChAFTA Article 11.17.1 (2015).
87
USTR, Fact Sheet of US-China Economic and Trade Agreement: Intellectual Property
(2020).
88
Pratyush Nath Upreti & María Vásquez Callo-Müller, Phase One US-China Trade Deal:
What Does It Mean for Intellectual Property?, 4 (on file with author) (2020).
89
US-China Economic and Trade Agreement Articles 1.4.2(a), 1.8.2. 2020.
12
supplemental data
90
), and broadens the scope of liability (so that any natural or legal persons
could be liable for trade secret misappropriation,
91
and assumed by e-commerce platforms for
IP infringement
92
). In particular, its IP rules go far beyond the TRIPS in respect of issues like
trade secrets protection.
93
They go a long way toward transplanting the US rules, especially
enforcement norms, into China.
94
Some of these provisions, such as criminal procedures and
penalties for trade secret misappropriation, resemble the counterparts in US FTAs.
95
On the other hand, with some exceptions,
96
the Phase One agreement is distinct from deep
FTAs. The IP criminal and civil enforcement rules in the TPP
97
are much more detailed than
in the Phase One agreement.
98
Many deep IP rules are adopted in a shortened version or are
absent in the Phase One agreement. As an example, the Phase One agreement is observed to
be still “short” on specifics about the size and application of penalties for IP infringement.
99
Notice and takedown against online infringement provisions in the Phase One agreement are
similar to those in the US Digital Millennium Copyright Act, but are a “a much shorter
version” of the US counterpart.
100
Various key TPP IP provisions that are absent in the Phase
One agreement are suspended in the CPTPP,
101
including the extended terms of protection for
copyright,
102
inventions derived from plants,
103
technological protection measures,
104
rights
management information,
105
as well as legal remedies and Safe Harbours.
106
B. WTO-beyond rules
Deep FTAs regulate trade and investment to an extent far beyond WTO rules.
107
They are
much more comprehensive than China’s trade agreements in WTO-beyond areas. The WTO-
beyond rules in deep FTAs range from SOEs, competition, anti-corruption, to currency and
social matters.
90
Id. at, Article 1.10.
91
Id. at, 1.3.1;USTR, 1 (this scope goes beyond "entities directly involved in the
manufacture or sale of goods and services" and covers former employees and cyberhackers).
2020.
92
US-China Economic and Trade Agreement Article 1.14. 2020.
93
Upreti & Callo-Müller, 4 (on file with author) (2020).
94
Id. at, 9 (on file with author).
95
Id. at, 4 (on file with author).
96
Under the Phase One agreement, the burden of proof shifts to the defendant in civil
proceedings if the trade secret owner provides reasonable evidence of trade secret
misappropriation. This is unprecedented in the US trade agreements.Id. at.
97
TPP Chapter 18, Section I.
98
Upreti & Callo-Müller, 9 (on file with author) (2020).
99
Michael Collins, et al., What's in Trump's 'Phase One' trade deal between the U.S. and
China?(2020), available at
https://www.usatoday.com/story/news/politics/2020/01/15/trump-trade-agreement-
china-what-in-phase-one-agreement/4434624002/.
100
Upreti & Callo-Müller, 5-6 (on file with author) (2020).
101
Id. at, 8 (on file with author).
102
TPP Article 18.63(a).
103
Id. at, Article 18.37.4.
104
Id. at, Article 18.68.
105
Id. at, Article 18.69.
106
Id. at, Article 18.82.
107
Petersmann, 34. 2017.
13
Deep FTAs strive to reduce or harmonize NTMs in WTO-beyond areas (e.g., capital
flows), and to incorporate good governance rules in various areas (e.g., “the making and
enforcement of labour and environmental laws and regulations”).
108
To illustrate, rules on
competition policy protect business interests through the promotion of a level playing field.
109
In the same vein, deep FTAs start to develop increasingly strong rules on currency. The TPP
is the first FTA to be explicitly connected to exchange rate and macroeconomic policies.
110
These provisions have developed into an USMCA chapter. The USMCA is the first FTA to
include “measures to guard against currency manipulation”, although the provisions have a
limited reach due to the U.S. Department of Treasury’s reluctance to address currency issues
in trade agreements.
111
Chinese trade agreements adopt a cautious and selective approach to WTO-beyond issues,
except for investment.
112
These WTO-beyond rules are generally far from fully-fledged.
China’s FTAs eschew many new issues (like competition, SOEs, and substantive rules
regarding digital sphere
113
). They extend to a very limited number of preferred issues, such as
investment facilitation in the China-Singapore FTA upgrade that calls for cooperation rather
than substantive provisions.
114
The Phase One agreement covers fewer new issues than
China’s FTAs, but addresses currency issues for the first time in China’s trade agreements.
The short-form rules on currency in the Phase One agreement essentially confirm the
international commitments of the parties, and are less detailed than the USMCA. They build
on the USMCA, under which the parties will publish monthly data on foreign exchange
reserve balances and intervention in foreign exchange markets, quarterly balance of payments
data and other reporting to the IMF.
115
These rules increase the transparency of foreign
exchange and prohibit competitive devaluations.
116
They require the disclosure of monthly
data on foreign exchange reserves, quarterly exports and imports of goods and service, and
balance of payments.
117
Notably, the USMCA impose more obligations than the Phase One
agreement in respect of publishing monthly interventions in spot and forward foreign
exchange markets.
118
108
Pauwelyn, 188. 2015.
109
Asif H Qureshi, International Legal Aspects of Free Trade Agreements in Northeast Asia,
16 MANCHESTER JOURNAL OF INTERNATIONAL ECONOMIC LAW 2, 8 (2019).
110
C. Fred Bergsten & Schott Jeffrey J., TPP and Exchange Rates, in ASSESSING THE TRANS-
PACIFIC PARTNERSHIP, VOLUME 2: INNOVATIONS IN TRADING RULES 115, (Jeffrey J. Schott &
Cimino-Isaacs Cathleen eds., 2016).
111
David A. Gantz, The United States-Mexico-Canada Agreement: Overview and Analysis,
BAKER INSTITUTE REPORT, 3 (2018).
112
Ganeshan Wignaraja, PRC and India: Pursuing the Same Approach to Free Trade
Agreements?, Asia Pathways(2012), available at https://www.asiapathways-
adbi.org/2012/10/prc-and-india-pursuing-the-same-approach-to-free-trade-agreements/.
113
Gregory Shaffer & Henry Gao, A New Chinese Economic Law Order?, UC IRVINE
SCHOOL OF LAW RESEARCH PAPER NO. 2019-21, 32 (2019).
114
China-Singapore FTA Upgrade Protocol Appendix 4, Article 21 (2019).
115
USMCA Article 33.5;David Lawder, et al., What's in the U.S.-China Phase 1 Trade
Deal(2020), available at https://www.reuters.com/article/us-usa-trade-china-details-
factbox/whats-in-the-us-china-phase-1-trade-deal-idUSKBN1ZE2IF
116
US-China Economic and Trade Agreement Article 5.2.3. 2020.
117
Id. at, Article 5.3.
118
USMCA Article 33.5.1(b).
14
In particular, the cautious approach is reflected in social issues. Social issues are basically
absent in the Phase One agreement given its narrow focus on market access. China’s FTAs
occasionally contain a very limited number of general and non-binding rules on a narrow
range of social issues. China’s FTAs only touch upon certain aspects of consumer
protection,
119
and often use some more ambiguous conflicts clauses that confirm the rights
and obligations under other agreements like those on the environment.
120
The issue of human
rights was raised by Australia in the ChAFTA negotiations but the final ChAFTA text avoids
mentioning it.
121
Given that China and the US have both concluded FTAs with Chile and Peru, they provide
excellent illustrative examples. China’s FTAs with Chile and Peru focus on the establishment
of strong trade relations, and only comment on the issues of labour, the environment and
transparency within the declaratory and thus non-binding language of the pacts’ preambles.
122
The US’ FTAs with Chile and Peru are more regulation-oriented, and directly tackle issues
not considered in Chinese FTAs.
123
They set out strict compliance requirements within three
key areas: labour, the environment, and transparency.
124
This selective approach is reflected in the forms of rules on social issues. China’s FTAs
often adopt Memorandums of Understanding (MOUs) or side agreements. If demanded by
trading partners, China prefers to address labour issues in standalone side agreements or
MOUs.
125
Related to the China-Switzerland FTA, the Agreement on Labour and Employment
reaffirms the international obligations of the two sides under relevant treaties and
international organizations and calls for collaboration, but does not impose stringent binding
obligations.
126
In contrast, labor and environment rules appear as part of the CPTPP and are
subject to dispute settlement. The rules on social issues reveal the substantial gap between
deep FTAs and China’s trade agreements in going beyond WTO rules.
IV. Depth: Regulatory Density
Depth is concerned with regulatory density: the penetration
127
of trade agreements into
domestic regulatory practice primarily through reduced regulatory barriers. The content of
FTAs is becoming increasingly deep: deep agreements move beyond “a simple free trade
area”, and contain deeper policy commitments (such as the harmonization of domestic
119
China-Korea FTA Article 14.6.2 (cooperation on competition law), Annex 9-A, paragraph 1
(assistance to the other party to enhance consumer protection in financial services) 2015.
120
Lorand Bartels, Social Issues: Labour, Environment and Human Rights, in BILATERAL
AND REGIONAL TRADE AGREEMENTS: COMMENTARY AND ANALYSIS 374, (Simon Lester, et
al. eds., 2016).
121
Sheng Zhang, Human Rights and International Investment Agreements: How to Bridge the
Gap?, 7 THE CHINESE JOURNAL OF COMPARATIVE LAW 457, 472 (2019).
122
Nargiza Salidjanova, China's Trade Ambitions: Strategy and Objectives behind China's
Pursuit of Free Trade Agreements, U.S.-CHINA ECONOMIC AND SECURITY REVIEW
COMMISSION STAFF RESEARCH REPORT, 31 (2015).
123
Id. at.
124
Id. at.
125
Henry Gao, China’s Evolving Approach to Environmental and Labour Provisions in
Regional Trade Agreements(2017), available at https://www.ictsd.org/opinion/china-3.
126
China-Switzerland Agreement on Labour and Employment, (2013).
127
Jale Tosun & Christoph Knill, Economy and Sustainability—How Economic Integration
Stimulates Stringent Environmental Regulations, 1 SUSTAINABILITY 1305, 1313 (2009).
15
regulation of financial services, and environmental standards).
128
This is because behind-the-
border measures have become a topic of increasing concerns over the years. Two major
indicia enable the evaluation of such depth: (i) regulatory cooperation and coherence, and (ii)
domestic law changes. A. Regulatory cooperation and coherence
Regulatory cooperation and coherence are representative elements by reference to which the
depth of agreements can be evaluated. This is because regulatory cooperation and coherence
are hallmarks of deep FTAs, and bring into play regulatory changes that are otherwise
difficult to generate. Affecting wide-ranging areas, they address coordination externalities
(i.e., the heterogeneity of different national policies and measures).
129
1. Deep FTAs
Deeper regulatory cooperation and coherence represent the new frontier of deep FTAs, and
are distinctive characteristics of recent FTAs involving OECD members (like the CPTPP,
USMCA) and TTIP negotiations.
130
They are intended to reduce the spillover effects of
regulatory measures through steps like mutual recognition agreements.
131
Regulatory coherence and cooperation of deep FTAs
132
usually involve three types of rules:
(i) regulatory coherence across regulatory regimes, which adopts good regulatory practices
relating to domestic processes for the adoption, enactment, and administration of regulatory
measures (e.g., the call for regulatory measures that are “plainly written… clear, concise,
well organised and easy to understand”
133
); (ii) loose forms of regulatory cooperation that
establish procedural or institutional frameworks to enhance regulatory collaboration (like the
sharing of information used in risk assessment, or Regulatory Cooperation Forum under
CETA
134
); and (iii) deep forms of regulatory cooperation to substantively harmonize
standards, and develop arrangements on mutual recognition or the equivalency of regulations
recognising each other’s laws, standards, measures or processes
135
(like in CETA protocol on
the mutual acceptance of the results of conformity assessment).
136
Put differently, regulatory
coherence often refers to the adoption of common principles of due process in domestic
regulation (including transparency, and stakeholder engagement) and focuses more on
processes than the substance of regulation, while regulatory cooperation refers to measures
that may reduce divergence between jurisdictions (like information sharing, mutual
128
World Trade Organization, 3, 8, 9, 110 (2011).
129
Ederington & Ruta, POLICY RESEARCH WORKING PAPER 7661, 43 (2016).
130
Hoekman & Mavroidis, 8 (2015).
131
Id. at, 2.
132
For the differences between the US and EU approaches, see, e.g., Simon Lester & Inu
Barbee, Will Regulations Sink EU-U.S. Free Trade?(2013), available at
http://www.cato.org/publications/commentary/will-regulations-sink-eu-us-free-trade.
133
TPP Article 25.5.4.
134
CETA Article 21.6.
135
Elizabeth Golberg, Regulatory Cooperation – A Reality Check, M-RCBG ASSOCIATE
WORKING PAPER SERIES NO. 115, 6 (2019).
136
Elizabeth Sheargold & Andrew D. Mitchell, The TPP and Good Regulatory Practices: An
Opportunity for Regulatory Coherence to Promote Regulatory Autonomy?, 15 WORLD
TRADE REVIEW 587, 595, 596 (2016);Hoekman & Mavroidis, 2-3 (2015).
16
recognition, equivalence arrangements, and regulatory compatibility) and often proceed to
substantive issues.
137
Deep FTAs highlight regulatory cooperation and coherence. The TPP and CETA have “a
similar basic structure” regarding regulatory coherence or cooperation.
138
Featuring the
hallmarks of US administrative law, regulatory coherence has been hardened by the US from
non-binding instruments in trans-governmental networks (e.g., OECD and APEC) into a core
part of the TPP.
139
The CPTPP is the first mega FTA containing all regulatory coherence
elements, which include transparency and public consultation, regulatory impact assessment,
inter-agency coordination and compatibility, and accountability based on administrative and
judicial review.
140
The CETA is the first FTA that contains a chapter on regulatory
cooperation.
141
Later, the USMCA’s good regulatory practices chapter (15 pages) doubles the
rules compared with its CPTPP counterpart (7 pages), and introduces more stringent
disciplines. The new regulatory coherence rules in the USMCA range from retrospective
review to decide the need for modification or repeal
142
to information quality (e.g., “reliable
and of high quality”)
143
and the publication of regulatory processes (like information about
mechanisms employed by regulators to prepare, evaluate, or review regulations).
144
More broadly, deep FTAs aim to bring regulatory harmony by affecting different
countries’ regulatory regimes. Regulatory harmony here means reduced inconsistency among
diverse regulatory systems, through various means such as mutual recognition, recognition of
equivalence, and regulatory harmonization that refers to convergence on the substance of
regulatory norms.
145
Addressing the relationship between “means” and “ends” to
“rationalize” policies, regulatory coherence intends to provide harmony across policies so
that the interventions are not excessively demanding or inconsistent.
146
A variety of specific
issues in domestic regulation are affected, including trademark law,
147
workplace safety
communication rules,
148
and domestic regulation of product safety, environmental and social
137
Junji Nakagawa, Regulatory Co-operation and Regulatory Coherence through Mega-
FTAs: Possibilities and Challenges, in INTERNATIONAL ECONOMIC LAW AND GOVERNANCE
392-393, (2016);Hoekman & Mavroidis, 2-3 (2015).
138
Joana Mendes, Participation in a new regulatory paradigm: collaboration and constraint in
TTIP’s regulatory cooperation 6, footnote 19 (2016).
139
Ching-Fu Lin & Han-Wei Liu, Regulatory Rationalisation Clauses in FTAs: A Complete
Survey of the US, EU and China, 19 MELBOURNE JOURNAL OF INTERNATIONAL LAW 149, 160
(2018).
140
Id. at, 153-155, 163.
141
Sheargold & Mitchell, WORLD TRADE REVIEW, 596 (2016).
142
USMCA Article 28.13.
143
Id. at, Article 28.5.
144
Id. at, Article 28.15.
145
Hoekman & Mavroidis, 2 (2015).
146
Id. at, 4.
147
Roberta L. Horton, Harmonizing Trademark Laws: Changes at the Heart of the
USMCA(2018), available at
https://www.arnoldporter.com/en/perspectives/publications/2018/10/harmonizing-trademark-
laws.
148
Sharon Treat, FAQ–Regulatory Cooperation, Harmonization and “Good Regulatory
Practices” in USMCA(2019), available at https://www.iatp.org/new-nafta-grp.
17
conditions.
149
These domestic regulatory practices are affected in various ways, for example
through consultations between USMCA parties’ regulators to narrow differences between
their regulations,
150
and regulatory reforms under the NAFTA to harmonize North American
law, at least to some degree.
151
Given the variations in domestic regulatory systems, it may be
enormously difficult to converge on the substance of all regulatory norms, but the reduction
of regulatory divergency is needed.
152
2. China’s FTAs
Differing markedly from deep FTAs, China’s FTAs focus on loose forms of regulatory
cooperation rather than regulatory coherence. They neither develop a dedicated chapter on
regulatory coherence or cooperation, nor provide for regulatory coherence. Regulatory
cooperation provided in China’s FTAs is a way of leaving the discussion of certain issues to a
future date than setting rules now.
Foremost, China involves itself in very limited deep forms of regulatory cooperation.
Typical deep forms of regulatory cooperation are mutual recognition arrangements (MRAs)
in the China-New Zealand FTA, which focuses on market access. Its MRA on electrical and
electronic equipment enables New Zealand to be “one of the only countries in the world
where China Compulsory Certification (CCC) can be approved outside of China.”
153
Such
arrangements are not common in China’s trade agreements.
Regulatory cooperation in Chinese FTAs often involves optional information sharing.
Concerning economic cooperation, the China-Korea FTA provides that both sides “may use
instruments and modalities, such as exchange of information, experiences, and best practices,
for the identification, development, and implementation of projects.”
154
It mentions “best
practices” three times, and is usually limited to the information exchange of best practices,
155
instead of the adoption of best practices under deep FTAs. In the same vein, China treats
good regulatory practices only ambiguously and under the narrow technical barriers to trade
(TBT) context in very few FTAs, which reflects complicated social, legal and other
underpinnings of China.
156
The China-New Zealand FTA has a kind of side agreement on
environment cooperation, and the common cooperation activities appear to be mostly
exchange of experience and visits, and joint events (like seminars).
157
149
Bernard Hoekman & Charles Sabel, Open Plurilateral Agreements, International
Regulatory Cooperation and the WTO, EUI WORKING PAPER RSCAS 2019/10, 1 (2019).
150
Treat. 2019.
151
Stephen Zamora, NAFTA and the Harmonization of Domestic Legal Systems: The Side
Effects of Free Trade, 12 ARIZONA JOURNALOF INTERNATIONALAND COMPARATIVELAW 401,
402 (1995).
152
Lester & Barbee. 2013.
153
New Zealand Ministry of Foreign Affairs and Trade, Using the New Zealand-China FTA,
available at https://www.mfat.govt.nz/en/trade/free-trade-agreements/free-trade-
agreements-in-force/china-fta/using-nz-china-fta/.
154
China-Korea Free Trade Agreement Officially Signed Article 17.2.3. 2015.
155
Id. at, Articles 13.7, 17.2.3, 17.23.2.
156
Lin & Liu, MELBOURNE JOURNAL OF INTERNATIONAL LAW, 166-167 (2018).
157
China-New Zealand Environment Cooperation Agreement Article 2.3 (2008).
18
Second, China’s FTAs eschew regulatory rights, and choose a “developing country” FTA
pattern.
158
The lax and aspirational regulatory cooperation rules in China’s FTAs are
provided in loosely worded obligations or hortatory statements. Like most other developing
countries in the region, China’s regulatory disciplines are more geared towards trade
development capacity needs, and therefore prefer shallow regulatory cooperation over more
onerous regulatory disciplines generally.
159
For e-commerce, China’s FTAs contain only
some, less structured cooperation rules (e.g., cooperation on addressing spam) than those of
the US and EU.
160
In some settings, China prefers maintaining national frameworks instead
of regulatory cooperation. This is the case with online consumer protection in e-commerce,
which contrasts with EU FTAs’ regulatory cooperation provisions.
161
Third, China’s regulatory cooperation often targets prioritized areas. It is not common to
find detailed and across-the-board regulatory cooperation rules in China’s FTAs. To
illustrate, the China-ASEAN FTA identified a number of prioritized cooperation areas,
including agriculture, information and communications technology, human resources
development, investment, and Mekong River basin development.
162
3. The Phase One agreement
The Phase One agreement is deeper than Chinese FTAs on regulatory cooperation in
strengthening regulatory cooperation. However, it lags behind deep FTAs: it is limited to
very narrow areas (particularly agriculture) and does not have systematic rules on regulatory
cooperation or coherence.
The Phase One agreement provides for select deep forms of regulatory cooperation,
including the recognition of the equivalency of US regulations and the adoption of
international standards. This is particularly the case with agriculture in which NTMs are
common. Such provisions range from the recognition of the US dairy-safety system as
providing the same level of protection as China’s counterpart,
163
and the recognition of
inspection of US pork and beef by the Food Safety and Inspection Service of the US
Department of Agriculture,
164
to the recognition of the US beef and beef products traceability
system.
165
China will also adapt a US automation system for accessing export certificates
regarding meat and poultry.
166
For internationals standards, China commits to adopting
maximum residue limits of Codex Alimentarius Commission regarding beef.
167
Along with
other provisions, China’s regulatory changes in agricultural trade as a whole account for over
a quarter of the Phase One agreement text.
168
158
Christopher M. Dent, Free Trade Agreements in the Asia-Pacific a Decade On:
Evaluating the Past, Looking to the Future, 10 INTERNATIONAL RELATIONS OF THE ASIA-
PACIFIC 201, 231 (2010).
159
Id. at.
160
Willemyns, JOURNAL OF INTERNATIONAL ECONOMIC LAW, 12 (2020).
161
Id. at, 19.
162
China-ASEAN Framework Agreement Article 7 (2002).
163
US-China Economic and Trade Agreement Chapter 3, Annex 2, paragraph 2(b). 2020.
164
Id. at, Chapter 3, Annex 4, paragraph 4, Annex 6, paragraph 2
165
Id. at, Chapter 3, Annex 4, paragraph 3.
166
Id. at, Chapter 3, Annex 8, paragraph 1;Fatih Oktay, The Phase One Trade Deal: What’s
in It for China?, The Diplomat(2020), available at https://thediplomat.com/2020/01/the-
phase-one-trade-deal-whats-in-it-for-china/.
167
US-China Economic and Trade Agreement Chapter 3, Annex 4, paragraph 5. 2020.
168
Oktay. 2020.
19
The Phase One agreement calls for other regulatory cooperation in select issues including
trade secret protection,
169
measures against counterfeiting and infringement in the e-
commerce market,
170
IP border enforcement,
171
agriculture,
172
and financial services.
173
IP
protection cooperation refers to information sharing, industry outreach, and regular
meetings.
174
Notably, the most detailed regulatory cooperation rules are an 11-paragraph
annex on agriculture.
175
Going beyond information exchange, it provides for technical
consultations (including on pesticide registration data and pesticide trial data, and the setting
of maximum residue levels, and sustainable agricultural development), and engagement on
agriculture-related TBT and SPS measures (including on the subject of risk
communication).
176
Overall, China’s FTAs resemble WTO norms that have few obligations imposed for
harmonization.
177
The possibility of regulatory harmonization is further constrained by
China’s lack of consistent FTA practices. China often relies on the FTA proposals of trading
partners.
178
The analytical framework will be useful to understand the nuances and
complexity of these trade agreements on a case by case basis. The Phase One agreement
deviates from the loose form of regulatory cooperation in China’s FTAs, and pushes for
limited regulatory harmony particularly regarding agriculture.
B. Domestic law change
The modification of domestic law is an important indicator of trade agreements’ depth:
deep FTAs are the deepest, China’s FTAs the most shallow, while the Phase One agreement
sits in the middle. Deep integration (like deep FTAs) requires states to directly negotiate over
and bind domestic policies, while shallow integration (like China’s FTAs) provides states
with more latitude in domestic policy making (e.g., NTMs), only subject to certain overriding
rules to prevent policy substitution.
179
The Phase One agreement is deeper than China’s FTAs
but still falls within shallow integration.
1. Deep FTAs
Deep FTAs are much more constraining than China’s trade agreements. The Phase One
agreement is distinct from deep FTAs since it has much less regulatory disciplines that cover
narrow issues. To some extent, the Phase One agreement is closer to US-China Joint
Commission on Commerce and Trade outcome sheets than FTAs.
180
169
US-China Economic and Trade Agreement Article 1.4.3. 2020.
170
Id. at, Chapter 1, Section E.
171
Id. at, Article 1.21.3.
172
Id. at, Article 3.1(a).
173
Id. at, Articles 4.1, 4.2.
174
Id. at, Article 1.33.
175
Id. at, Chapter 3, Annex 1.
176
Id. at.
177
Hoekman & Mavroidis, 3 (2015).
178
Axel Berger, Hesitant Embrace: China’s Recent Approach to International Investment
Rule-Making, 16 THE JOURNAL OF WORLD INVESTMENT & TRADE 843, 867 (regarding
China's investment rules) (2015);Salidjanova, U.S.-CHINA ECONOMIC AND SECURITY REVIEW
COMMISSION STAFF RESEARCH REPORT, 22 (2015).
179
Ederington & Ruta, POLICY RESEARCH WORKING PAPER 7661, Abstract, 38, 39 (2016).
180
I got this point from Mark Cohen.
20
Deep FTAs feature often precise binding disciplines governing domestic policies and
stricter obligations (like harmonization or mutual recognition).
181
Deep FTAs increasingly
target NTMs (the substantive chapters of the CETA mostly addressing NTMs
182
) and set
stringent regulatory controls for domestic regulation. These pacts (e.g., the TPP and CETA)
provide for higher standards than previous trade pacts in respect of crucial issues like labor
and the environment.
183
Deep FTAs, like other deep international agreements, require “extensive changes to
existing behaviour.”
184
Deep regulatory rules require institutional development and a high
level of policy coordination, which brings major rule changes in developing country parties.
These rules directly constrain domestic policy making, since enforceable regulatory
obligations could “lock in structural reforms at national-level and promote implementation of
second generation reforms.”
185
Deep rules like TPP provisions require “deeper domestic
administrative, regulatory, and legal reforms.”
186
To illustrate, the CPTPP IP rules are
expected to bring significant changes to Vietnam.
187
2. China’s trade agreements
China’s FTAs, including the China-Korea FTA, do not seek to push through significant
domestic regulatory reform.
188
They contain traditional rules that often focus on border
measures (like tariff cuts), rather than stringent regulatory disciplines on NTMs. China’s
FTAs usually can be implemented by administrative agencies. They do not require legal
amendments by the legislature, nor a wide-ranging review of domestic law. Put differently,
China’s FTAs may bring certain changes, predominantly in the administrative practice
sphere. They may thus be considered as shallow FTAs that permit states greater latitude in
adopting NTMs.
189
The impacts of the Phase One agreement on the Chinese legal system are deeper than those
brought by Chinese FTAs. This is reflected in its more stringent but sector-specific regulatory
rules in narrow prioritized areas (particularly IP, agriculture, financial services, and
technology transfer). The Phase One agreement is likely to impact judicial and administrative
practices related to criminal enforcement of IP rules.
190
For instance, the Supreme People’s
181
Ederington & Ruta, POLICY RESEARCH WORKING PAPER 7661, 40 (2016).
182
Hoekman & Mavroidis, 8 (2015).
183
Inside CETA: Unpacking the EU-Canada Free Trade Deal. (2014).
184
Laurence R. Helfer, Flexibility in International Agreements, in INTERDISCIPLINARY
PERSPECTIVES ON INTERNATIONAL LAW AND INTERNATIONAL RELATIONS: THE STATE OF THE
ART 175, (Jeffrey L. Dunoff & Mark A. Pollack eds., 2012).
185
Wignaraja. 2012.
186
Jing Tao, TPP and China: A Tale of Two Economic Orderings?, in MEGAREGULATION
CONTESTED: GLOBAL ECONOMIC ORDERING AFTER TPP 92, (Benedict Kingsbury, et al. eds.,
2019).
187
See, e.g., Linh Duy Mai, CPTPP Brings Significant and Effective Change to Vietnam’s IP
Landscape(2019), available at
https://www.tilleke.com/sites/default/files/2019_JanFeb_MIP_IP_Impact_CPTPP.pdf.
188
Schott, et al., 4. 2015.
189
Ederington & Ruta, POLICY RESEARCH WORKING PAPER 7661, 4 (2016).
190
Hongbin Jiao & Yuxin Liu, An IP Roadmap for Phase-One Sino-US Economic and Trade
Agreement(2020), available at
https://www.chinalawinsight.com/2020/01/articles/intellectual-property/an-ip-roadmap-
for-phase-one-sino-us-economic-and-trade-agreement/.
21
Court overruling of two previous lower court judgments concerning the Chinese name of
Michael Jordan arguably reflects the commitments under the Phase One agreement.
191
Some of China’s laws may be modified given the discrepancies between them and the
Phase One agreement. The implementation of the Phase One agreement “at least to some
extent require structural reforms and substantial revisions of China’s intellectual property
laws that should presumably extend more broadly.”
192
Possible domestic law changes include
to aspects of the E-Commerce Law (such as the removal of liability for erroneous takedown
notices submitted in good faith, 20 working days for right holders to file a judicial or
administrative complaint after receipt of a counter-notification, and the penalties against
notices and counter-notifications submitted in bad faith), Copyright Law (the primary burden
of proof to be removed from copyright owner regarding copyrighted works’ ownership),
Civil Procedure Law (removing or streamlining notarization requirements regarding the
authentication of foreign-sourced evidence), and Patent Law (pharmaceutical patent
linkage).
193
For instance, the pharmaceutical patent linkage system provided in the Phase One
agreement is “totally brand new to Chinese patent system both legislatively and judicially”
and is likely to be part of China’s Patent Law amendment, although China’s recent policy
documents have repeatedly called for exploring such pharmaceutical patent linkage
system.
194
Meanwhile, the Phase One agreement has impacts on China’s legislative reform
particularly concerning IP, but such impacts are not significant.
195
Many obligations of the
Phase One agreement have been reflected in Chinese law modification before the conclusion
of the Phase One agreement. These rules of Chinese domestic law include the 2019 revised
Anti-Unfair Competition Law (expanding trade secrets to confidential business information,
the inclusion of electronic intrusions in trade secret misappropriation, the liability of any
natural or legal persons for conducting trade secret misappropriation, and the reversal of the
burden of proof); newly released Measures on Protection of Overseas Geographical
Indication and revised Trademark Law (geographical indications and bad-faith
trademarks);
196
2019 Foreign Investment Law (administrative authorities and officers
prohibited from force technology transfer by administrative means); and 2019 E-Commerce
Law (e-commerce operators to establish rules of IP protection).
197
191
Cissy Zhou, China Sports Firm Illegally Used Michael Jordan’s Name but Did Not Violate
Image Rights, Top Court Rules, South China Morning Post(2020), available at
https://www.scmp.com/economy/china-economy/article/3079028/china-sports-firm-
illegally-used-michael-jordans-name-did-not.
192
Eugenia Kolivos & Lara Nurick, Intellectual Property, Technology Transfers and the US-
China Trade Deal: Key Takeaways for Australia(2020), available at
https://corrs.com.au/insights/intellectual-property-technology-transfers-and-the-us-china-
trade-deal-key-takeaways-for-australia.
193
Jiao & Liu. 2020.
194
Id. at.
195
Feng Wang, et al., China and the United States Announce “Phase One” Trade Deal - Key
Issues and Takeaways for Business(2020), available at
https://www.kwm.com/en/us/knowledge/insights/china-and-the-us-announces-phase-one-
trade-deal-key-issues-and-takeaways-for-business-2020.
196
Jiao & Liu. 2020.
197
Wang, et al. 2020.
22
V. Strength: Rule Use Intensity
Rule use intensity refers to the extent to which trade agreements can be implemented either
through resort to binding dispute settlement (with disputes heard by adjudicators) or other
ways (e.g., suspended obligations or remedial action such as tariffs imposed by the states, the
provision for remedy sought by private parties). It is concerned with the strength of rules
from the perspective of dispute settlement, judged from (i) SSDS rules, including private
access, and (ii) the coverage of dispute settlement mechanisms.
A. Rules on state-to-state dispute settlement
1. Deep FTAs
Compared with China’s trade agreements, deep FTAs strengthen dispute settlement
through institutional and rule development. Institutionally, the USMCA creates a Secretariat
that consists of national Sections and will assist dispute settlement.
198
This is lacking in
China’s trade agreements.
Deep FTAs contain new or more detailed rules on panel proceedings which are weak in
China’s FTAs and absent in the Phase One agreement. For the panel functions, the USMCA
provides the following functions that are absent in the China-Korea FTA counterpart:
whether a party has “otherwise failed to carry out” its FTA obligations, whether an impugned
measure is “causing nullification or impairment”, other determinations required in the terms
of reference, recommendation on resolving the disputes upon request, and the “reasons for
the findings and determinations.”
199
Concerning the panel process, deep FTAs provide for the
roster or list of the panel
200
and submissions of non-governmental entities,
201
both of which
are absent in China’s FTAs. Going beyond China’s trade agreements, other advancements in
deep FTAs range from transparency (e.g., open panel hearings,
202
the written submissions
and final panel being made publicly available
203
) to efficiency (e.g., up to 350 days from the
consultation request to the issuance of a final panel report under the TPP
204
). Regarding
compliance with dispute settlement reports, the CPTPP provides for the possibility of a
monetary assessment, which is essentially a fine and replaces retaliation by the winning
party.
205
Deep FTAs begin to allow private access: the private right to action with the
possible redress in the form of “injunctive, monetary or other remedies”
206
in the TPP
competition chapter, likely a first for an FTA.
207
Deep FTA dispute settlement has been used in practice. As pointed out by the Mexican
USMCA negotiator, “[d]ispute resolution is for the small country”, and this is a major reason
198
USMCA Article 30.6.
199
Id. at, Article 31.13.1.
200
Id. at, Article 31.8 (roster of panel chairs);CETA Article 29.8;CPTPP Article 28.11.
201
CPTPP Article 28.13(e).
202
Id. at, Article 28.13(b).
203
Id. at, Articles 28.13(d), 28.18.
204
Jennifer Hillman, Dispute Settlement Mechanism, in ASSESSING THE TRANS-PACIFIC
PARTNERSHIP, VOLUME 2: INNOVATIONS IN TRADING RULES 101-102, (Jeffrey J. Schott & Cimino-
Isaacs Cathleen eds., 2016).
205
CPTPP Article 28.20.7, 28.20.8.
206
TPP Artile 16.3.1.
207
R. Michael Gadbaw, Competition Policy, in ASSESSING THE TRANS-PACIFIC PARTNERSHIP,
VOLUME 2: INNOVATIONS IN TRADING RULES 83, 87, (Jeffrey J. Schott & Cimino-Isaacs
Cathleen eds., 2016).
23
why smaller economies are interested in deep FTAs.
208
For one thing, deep FTAs often
provide for more detailed rules that make it easier to adjudicate on trade disputes. There were
three SSDS cases under the NAFTA, although later cases could not proceed largely due to
the US delay in panel proceedings (particularly the panel formation) under NAFTA Chapter
20.
2. China’s trade agreements
China’s FTAs closely follow the WTO dispute settlement rules with little development of
new rules. Instead, China’s FTAs have a strong preference for a non-adversarial approach,
and are less hard-edged. They often emphasise non-litigious alternative dispute resolution
methods (like consultation) over detailed, rigid and compulsory formal dispute settlement
rules as in deep FTAs.
209
The China-Korea FTA provides that the parties “shall make every
attempt through cooperation and consultations” to solve disputes under the FTAs.
210
As with
other Chinese FTAs, disputes under the China-Korea FTA will be addressed by the panellists
when consultations fail to resolve the dispute in time.
211
As in the case of bilateral FTAs,
states to FTAs could have “significant disparities in wealth and political influence”, and
China is likely to be a better position from the perspective of such asymmetry between
states.
212
Given the strong preference for consultation, the nature of bilateral FTAs and the
vague rules, it remains to be seen whether and how the panel process will be utilized in
China’s FTAs. This may explain why the panel process has not been used in China’s FTAs.
China’s FTAs have played little role in addressing China’s trade tensions with Australia and
Korea
213
through dispute settlement.
Moreover, Chinase FTAs usually do not provide private access which means that private
actors have the right of action to enforce the trade agreement (such as regarding competition
issues in the TPP). Instead, the China-Korea FTA prohibits a right of action under one party’s
domestic law against the other party on the ground that the other Party’s measure is
incompatible with the FTA.
214
The Phase One agreement has much stronger consultation arrangements than China’s
FTAs in terms of design, the various administrative levels involved, and the frequency of
meetings. It lays out a three-tier process: (i) designated officials of Bilateral Evaluation and
Dispute Resolution Office (BEDRO) in each country to address day-to-day matters, regularly
meeting at least once a month (functional level of daily work); (ii) a designated Deputy
USTR and a designated Vice Minister of China who head the BEDRO, meeting quarterly
(vice-ministerial level engagement); and (iii) the Trade Framework Group led by the USTR
208
Simon Lester, Mexico's View of the Problems with the NAFTA Panel Appointment Process
(2018).
209
Guiguo Wang, China's FTAs: Legal Characteristics and Implications, 105 AMERICAN
JOURNAL OF INTERNATIONAL LAW 493, 503 (2011).
210
China-Korea FTA Article 20.1. 2015.
211
Id. at, Article 20.6.
212
MICHAEL J. TREBILCOCK & JOEL TRACHTMAN, ADVANCED INTRODUCTION TO INTERNATIONAL TRADE LAW
56 (Edward Elgar 2nd ed. 2020).
213
Heng Wang, China-Led RCEP Provides Starting Point for Reducing Tensions and Building
New Global Trade Rules, South China Morning Post(2020), available at
https://www.scmp.com/print/business/article/3086149/china-led-rcep-provides-starting-
point-reducing-tensions-and-building-new;S Korea complains to WTO about China over
Thaad, BBC(2017), available at https://www.bbc.com/news/business-39324536.
214
China-Korea FTA Article 20.17. 2015.
24
and a designated Vice Premier of China, meeting every six months (high level engagement
compared with vice-ministerial level consultation under the China-Korea FTA
215
).
216
If the
consultation fails, the complaining party could suspend obligations under the deal or
subsequently take remedial action.
217
This appears to be a kind of self-help measure. The
other party could withdraw from the agreement with 60-days written notice if it thinks that
the complaining party suspended the obligation or adopted the remedial measure in bad
faith.
218
A withdrawing party is not required to resume obligations, and the other party could
continue the responsive actions, both of which are likely to disturb trade.
219
However, the Phase One agreement eschews third-party adjudication, which leads to the
de-legalization of international economic relations.
220
Legalization refers to the delegation of
dispute settlement to designated third parties, and the parties to the agreement agreeing to
accept binding third-party adjudication decisions under clear and applicable rules (legal
delegation).
221
Legal delegation is also measurable in the extent to which private actors are
allowed to start a legal proceeding (legalized dispute settlement processes) to enforce the
agreement (private access).
222
Such private access is largely absent in the Phase One
agreement. Through bilateral evaluation and dispute resolution, the Phase One agreement
shifts towards unilateral enforcement. It eschews third-party dispute resolution, which is
particularly strong with deep FTAs.
B. The scope of dispute settlement
1. Deep FTAs
Deep FTAs are more ambitious in the coverage of dispute settlement than older
agreements, with limited exceptions to accommodate regulatory space (like competition due
to the sovereignty concerns on competition policy) or country-specific preferences.
223
Crucially, deep FTAs expand the coverage of binding dispute settlement particularly
regarding an increasing number of WTO-beyond issues. The expanded areas include
commercial consideration requirements on SOEs,
224
government procurement, financial
services and, to a lesser extent, select social issues (labor and environment), regulatory
coherence, anti-corruption and the movement of natural persons. A number of issues are
spared from dispute settlement in previous FTAs, including government procurement and
215
See, e.g., China FTA Network, The 2nd Joint Commission on China-ROK FTA Held in
Seoul(2018), available at
http://fta.mofcom.gov.cn/enarticle/enkorea/enkoreanews/201808/38460_1.html.
216
US-China Economic and Trade Agreement Articles 7.4, 7.2, Annex 7-A. 2020.
217
Id. at, Article 7.4.4(b).
218
Id. at.
219
David A. Gantz, et al., The Scorecard of the Phase One Trade Agreement (2020).
220
Frieder Roessler, Domestic Policy Ojectives and the Multilateral Trade Order: Lessons
from the Past Symposium on Linkage as Phenomenon: An Interdisciplinary Approach, 19
UNIVERSITY OF PENNSYLVANIA JOURNAL OF INTERNATIONAL ECONOMIC LAW 513, 531 (1998).
221
Kenneth W. Abbott, et al., The Concept of Legalization, 54 INTERNATIONAL ORGANIZATION
401, 415 (2000).
222
Id. at, 416.
223
Wang, JOURNAL OF WORLD TRADE, 333 (2019).
224
CPTPP Article 17.15.
25
financial services.
225
The EC and US FTAs used to have quite small number of enforceable
WTO-beyond provisions.
226
Government procurement
227
and financial services
228
are subject
to dispute settlement under deep FTAs. The TPP subjects rules on anti-corruption to modified
dispute settlement provisions,
229
and sets conditional access to dispute settlement for the
chapter on the movement of natural persons.
230
Transparency and reporting obligations
related to macroeconomic policies and exchange rate matters are subject to USMCA dispute
settlement processes.
231
For social issues, labor and environment disputes are subject to
procedures and rules in CETA labor and environment chapters,
232
and are to be decided by a
Panel of Experts.
233
Commitments under the TPP labor chapter are subject to SSDS
mechanisms if labor consultation fails,
234
while its environment chapter is subject to dispute
settlement with certain limitations. More broadly, dispute settlement regarding regulatory
coherence has been strengthened from the CPTPP’s non-application of dispute settlement
235
to the USMCA’s limited application of dispute settlement (regarding a sustained course of
(in)action).
236
2. China’s trade agreements
Reflecting a selective approach, China’s trade agreements have a much narrower dispute
settlement coverage than deep FTAs. Nearly all rules on WTO beyond issues (with the
exception of investment) and many WTO-plus rules are exempt from China’s FTA dispute
settlement processes. To take e-commerce as an example of WTO-plus rules, it is observed
that China “did not include a single binding obligation” related to wide-ranging e-commerce
terms searched for in FTAs, which contrasts with the US and EU FTAs.
237
The e-commerce
chapter remains non-enforceable in the latest China-Singapore FTA upgrade.
238
This
contrasts with the enforceable CPTPP e-commerce rules. As an illustration of WTO-beyond
areas, Chinese FTAs contain broad exclusions from dispute settlement for rules on non-trade
concerns.
The Phase One agreement addresses only a few select areas, and only subjects a limited
number of sectors to dispute settlement. That said, it features new developments. There are
arguments that macroeconomic policies and exchange rate issues are governed by the dispute
settlement system of the Phase One agreement, which means that unilateral tariffs could be
imposed.
239
This appears to be supported by the statement of the US Treasury Secretary
225
Victoria Donaldson & Lester Simon, Dispute Settlement, in BILATERAL AND REGIONAL
TRADE AGREEMENTS: COMMENTARY AND ANALYSIS 399, (Simon Lester, et al. eds., 2016).
226
Horn, et al., THE WORLD ECONOMY, 1587 (2010).
227
E.g., CETA Article 19.18.4.
228
Id. at, Articles 13.20.1;TPP Article 11.21.1.
229
TPP Article 26.12.1.
230
Id. at, Article 12.10.
231
USMCA Article 33.8.1.
232
CETA Articles 23.11.1, 24.16.1.
233
Id. at, Articles 23.10.2, 24.15.2.
234
TPP Articles 19.15.12, 19.15.13.
235
CPTPP Article 25.11.
236
USMCA Article 28.20.3.
237
Willemyns, JOURNAL OF INTERNATIONAL ECONOMIC LAW, 11-12 (2020).
238
China-Singapore FTA Upgrade Protocol Appendix 6, Article 11. 2019.
239
James Politi, What’s in the US-China ‘Phase One’ Trade Deal?, Financial Times(2020),
available at https://www.ft.com/content/a01564ba-37d5-11ea-a6d3-9a26f8c3cba4.
26
Steven Mnuchin that “China has made enforceable commitments to refrain from competitive
devaluation.”
240
This reflects a hybrid approach of the formal consultations with the IMF and
the possible remedial measures (like tariffs). If so, the Phase One agreement goes further than
the TPP. Currency issues are not addressed in the TPP text but in a separate document (joint
declaration
241
), and are not subject to dispute settlement. In all, currency rules have taken
harder forms in the Phase One agreement.
VI. Concluding remarks
Trade agreements are a moving target and increasingly complex. China does not have a
model for trade agreements.
242
China’s trade agreements develop on an ad hoc basis, and
vary according to the situation warranting a trade pact.
243
The Phase One agreement is
unprecedented for both China and the US. For FTAs concluded by the US, mini trade
agreements are arising (e.g., the 2019 US-Japan Trade Agreement regarded as a “limited”
trade agreement,
244
and the planned US-India trade deal negotiations
245
). The GVCs are now
under pressure.
Different categories of trade agreements adopt different approaches, as demonstrated by a
comparison of deep FTAs and China’s trade agreements. Representing regulatory plowing,
deep FTAs develop comprehensive regulatory standards and address coordination
externalities. Regarding effects, deep FTAs strengthen GVCs and, if properly managed, could
provide public goods. In contrast, reflecting an early harvest approach, China’s trade
agreements focus on selective market access and often address terms-of-trade externalities.
Therefore, these agreements (particularly the Phase One agreement as the prime example of
selective engagement) could lead to more discussion as to trade diversion or trade creation,
although trade diversion or trade creation may also exist in deep FTAs. A major challenge
faced by Chinese trade agreements is that they are far from sufficient to address the
heterogeneity of national measures and promote deep integration. This affects predictability
in trade. This challenge is even more significant in the post-COVID-19 era with the rise of
deglobalisation and decoupling.
The tripartite analytical framework with six indicators focuses on crucial elements of trade
agreements: (i) breadth (indicators: WTO-plus obligations that are stricter than WTO
obligations, and WTO-beyond rules that address issues outside the WTO aegis); (ii) depth
240
Thomas Franck, US Removes China from Currency Manipulator List Ahead of Trade Deal
Signing(2020), available at https://www.cnbc.com/2020/01/13/us-will-no-longer-consider-
china-a-currency-manipulator.html.
241
Joint Declaration of the Macroeconomic Policy Authorities of Trans-Pacific Partnership
Countries(2015), available at
http://www.treasury.gov.au/PublicationsAndMedia/Publications/2015/Joint-Declaration-
by-Trans-Pacific-Partnership-countries.
242
Salidjanova, U.S.-CHINA ECONOMIC AND SECURITY REVIEW COMMISSION STAFF
RESEARCH REPORT, 22 (2015).
243
Kong, JOURNAL OF WORLD TRADE, 1205 (2012).
244
Paul Wiseman & The Associated Press, Trump Signs Japan Mini Trade Deal With No
Change in Auto Tariffs, Fortune(2019), available at https://fortune.com/2019/10/07/us-
trade-deal-japan-auto-tariffs-us-farmers-trump-signs-mini-trade-deal-with-japan/.
245
Trevor Cloen & Irfan Nooruddin, The U.S.-India Trade Deal Fell Through. What Happens
Now?, The Washington Post(2020), available at
https://www.washingtonpost.com/politics/2020/03/05/us-india-trade-deal-fell-through-
what-happens-now/.
27
(indicators: regulatory cooperation and coherence, and domestic law changes); and (iii)
strength (indicators: state-to-state dispute settlement (SSDS) rules, and SSDS coverage).
This framework covers rule coverage, essence and implementation. Breadth and depth of
trade agreements largely determine the landscape of trade, while strength decides how the
rules will be followed.
The tripartite analytical framework has great strength and utility. First, such tripartite
framework is crucial to the categorization of different types of trade agreements, and
advances the understanding of their key differences and nuances. Second, it is critical to the
in-depth analysis of the future of trade law and its implications. The tripartite analytical
framework lays a solid foundation for the further measurement of various trade agreements,
their actual merits and effects. The indicators concerning regulatory outreach strongly
support the assessment of the “width” of trade agreements’ impacts on domestic regulation,
and their differences from those arising from WTO rules. The indicators of regulatory density
(i.e., regulatory cooperation and coherence, and domestic change) greatly help to measure the
“depth” of trade agreements’ impacts on regulatory autonomy. The indicators of rule use
intensity are useful in assessing how trade agreements are implemented and enforced. The
framework carefully targets at key issues and variables, and supports the quantification of the
effects and merits of trade agreements in future research. It enables various stakeholders
(including businesses, NGOs, and the public) to better understand trade agreements, their
trend and implications. The framework can be used in preparing for new trade agreement
negotiations, including identifying best practices if any and designing the negotiation plan to
explore desirable outcomes. Overall, it is a valuable tool for us to better understand the
increasingly complex trade agreements and rapidly changing trade law landscape.
US-China Economic and Trade Agreement (2020).
Kevin Freking & Paul Wiseman, Read the Full U.S.-China ‘Phase 1’ Trade
Agreement(2020), available at https://www.pbs.org/newshour/economy/read-the-full-u-s-
china-phase-1-trade-agreement.
World Bank, Regional Trade Agreements(2018), available at
https://www.worldbank.org/en/topic/regional-integration/brief/regional-trade-agreements.
World Trade Organization, World Trade Report 2011, (2011).
Josh Ederington & Michele Ruta, Non-Tariff Measures and the World Trading System,
POLICY RESEARCH WORKING PAPER 7661 (2016).
Heng Wang, Selective Engagement? Future Path for US-China Economic Relations and Its
Implications, 55 JOURNAL OF WORLD TRADE (2021 forthcoming).
Aaditya Mattoo, et al., Overview: The Evolution of Deep Trade Agreements, in HANDBOOK
OF DEEP TRADE AGREEMENTS (Aaditya Mattoo, et al. eds., 2020).
Heng Wang, The Future of Deep Free Trade Agreements: The Convergence of TPP (and
CPTPP) and CETA?, 53 JOURNAL OF WORLD TRADE 317(2019).
CPTPP.
USMCA.
Si-qi Li, et al., Progress and Implications of the China-Korea FTA, 31 KOREA’S ECONOMY
13(2017).
Heng Wang, The Features of China’s Recent FTA and Their Implications: An Anatomy of the
China–Korea FTA, 11 ASIAN JOURNAL OF WTO & INTERNATIONAL HEALTH LAW & POLICY
115(2016).
28
Yonhap, S. Korea, China Formally Sign Free Trade Deal(2015), available at
http://english.yonhapnews.co.kr/national/2015/06/01/95/0301000000AEN201506010015523
20F.html.
China FTA Network, China-ROK FTA Negotiations Completed(2015), available at
http://fta.mofcom.gov.cn/enarticle/enrelease/201503/20754_1.html.
Ernst-Ulrich Petersmann, CETA, TTIP, and TiSA: New Trends in International Economic
Law, in MEGA-REGIONAL TRADE AGREEMENTS: CETA, TTIP, AND TISA (2017).
Joost Pauwelyn, Taking the Preferences Out of Preferential Trade Agreements: TTIP as a
Provider of Public Goods?, in THE POLITICS OF TRANSATLANTIC TRADE NEGOTIATIONS :
TTIP IN A GLOBALIZED WORLD (Jean-Frédéric Morin, et al. eds., 2015).
TPP.
Gina M. Vetere, et al., What’s New in the TPP’s Intellectual Property Chapter(2015),
available at https://www.globalpolicywatch.com/2015/11/whats-new-in-the-tpps-intellectual-
property-chapter/.
Dilip K. Das, Ripening Regional Economic Architecture in Asia, CSGR WORKING PAPER
277/13 (2013).
JACQUES PELKMANS, et al., TOMORROW’S SILK ROAD: ASSESSING AN EU-CHINA FREE TRADE
AGREEMENT (Rowman & Littlefield International. 2016).
Henrik Horn, et al., Beyond the WTO? An Anatomy of EU and US Preferential Trade
Agreements, 33 THE WORLD ECONOMY 1565(2010).
Ines Willemyns, Agreement Forthcoming? A Comparison of EU, US, and Chinese RTAs in
Times of Plurilateral E-Commerce Negotiations, JOURNAL OF INTERNATIONAL ECONOMIC
LAW 1(2020).
Jie Huang, Comparison of E-commerce Regulations in Chinese and American FTAs:
Converging Approaches, Diverging Contents, and Polycentric Directions?, 64
NETHERLANDS INTERNATIONAL LAW REVIEW 309(2017).
Rodney D. Ludema & Anna Maria Mayda, Do Terms-of-Trade Effects Matter for Trade
Agreements? Theory and Evidence From WTO Countries, 128 THE QUARTERLY JOURNAL OF
ECONOMICS 1837(2013).
Asrat Tesfayesus, Liberalization Agreements in the GATT/WTO and the Terms-of-trade
Externality Theory: Evidence from Three Developing Countries, 24 REVIEW OF
INTERNATIONAL ECONOMICS 1000(2016).
Qingjiang Kong, China’s Uncharted FTA Strategy, 46 JOURNAL OF WORLD TRADE
1191(2012).
Amrita Bahri & Monica Lugo, Trumping Capacity Gap with Negotiation Strategies: the
Mexican USMCA Negotiation Experience, 23 JOURNAL OF INTERNATIONAL ECONOMIC LAW
1(2020).
Naomi Powell, 'Canada Should Be Worried': Canadian Exporters May Become Collateral
Damage of U.S-China Trade Deal, Financial Post(2020), available at
https://business.financialpost.com/news/economy/canada-should-be-worried-canadian-
exporters-may-become-collateral-damage-of-u-s-china-trade-deal.
Jeffrey J. Schott, et al., An Assessment of the Korea-China Free Trade Agreement (The
Peterson Institute for International Economics 2015).
Ka Zeng, Introduction to the Handbook on the International Political Economy of China, in
HANDBOOK ON THE INTERNATIONAL POLITICAL ECONOMY OF CHINA (Ka Zeng ed. 2019).
CETA – Summary of the Final Negotiating Results. (2016).
Axel Berger, Investment Rules in Chinese Preferential Trade and Investment Agreements: Is
China Following the Global Trend Towards Comprehensive Agreements? at
https://www.die-gdi.de/uploads/media/DP_7.2013.pdf.
29
Bernard Hoekman & Petros C. Mavroidis, Regulatory Spillovers and the Trading System:
From Coherence to Cooperation, (2015).
China-Korea FTA (2015).
World Trade Organization, Protocol on the Accession of the People's Republic of China
(2001).
Jyh-An Lee, Shifting IP Battlegrounds in the U.S.–China Trade War, 43 THE COLUMBIA
JOURNAL OF LAW & THE ARTS 147(2020).
China-Korea Free Trade Agreement Officially Signed(2015), available at
http://big5.mofcom.gov.cn/gate/big5/fta.mofcom.gov.cn/enarticle/enrelease/201506/21934_1.
html.
CETA.
Caroline Freund, Other New Areas: Customs Administration and Trade Facilitation,
Anticorruption, Small and Medium-Sized Enterprises, and More, in ASSESSING THE TRANS-
PACIFIC PARTNERSHIP, VOLUME 2: INNOVATIONS IN TRADING RULES (Jeffrey J. Schott &
Cimino-Isaacs Cathleen eds., 2016).
Singapore Fintech Fest Showcases Innovations in Payments(2018), available at
https://www.finextra.com/newsarticle/32959/singapore-fintech-fest-showcases-innovations-
in-payments.
ChAFTA (2015).
USTR, Fact Sheet of US-China Economic and Trade Agreement: Intellectual Property
(2020).
Pratyush Nath Upreti & María Vásquez Callo-Müller, Phase One US-China Trade Deal:
What Does It Mean for Intellectual Property?, (2020).
Michael Collins, et al., What's in Trump's 'Phase One' trade deal between the U.S. and
China?(2020), available at https://www.usatoday.com/story/news/politics/2020/01/15/trump-
trade-agreement-china-what-in-phase-one-agreement/4434624002/.
Asif H Qureshi, International Legal Aspects of Free Trade Agreements in Northeast Asia, 16
MANCHESTER JOURNAL OF INTERNATIONAL ECONOMIC LAW 2(2019).
C. Fred Bergsten & Schott Jeffrey J., TPP and Exchange Rates, in ASSESSING THE TRANS-
PACIFIC PARTNERSHIP, VOLUME 2: INNOVATIONS IN TRADING RULES (Jeffrey J. Schott &
Cimino-Isaacs Cathleen eds., 2016).
David A. Gantz, The United States-Mexico-Canada Agreement: Overview and Analysis,
BAKER INSTITUTE REPORT (2018).
Ganeshan Wignaraja, PRC and India: Pursuing the Same Approach to Free Trade
Agreements?, Asia Pathways(2012), available at https://www.asiapathways-
adbi.org/2012/10/prc-and-india-pursuing-the-same-approach-to-free-trade-agreements/.
Gregory Shaffer & Henry Gao, A New Chinese Economic Law Order?, UC IRVINE SCHOOL
OF LAW RESEARCH PAPER NO. 2019-21 (2019).
China-Singapore FTA Upgrade Protocol (2019).
David Lawder, et al., What's in the U.S.-China Phase 1 Trade Deal(2020), available at
https://www.reuters.com/article/us-usa-trade-china-details-factbox/whats-in-the-us-china-
phase-1-trade-deal-idUSKBN1ZE2IF
Lorand Bartels, Social Issues: Labour, Environment and Human Rights, in BILATERAL AND
REGIONAL TRADE AGREEMENTS: COMMENTARY AND ANALYSIS (Simon Lester, et al. eds.,
2016).
Sheng Zhang, Human Rights and International Investment Agreements: How to Bridge the
Gap?, 7 THE CHINESE JOURNAL OF COMPARATIVE LAW 457(2019).
Nargiza Salidjanova, China's Trade Ambitions: Strategy and Objectives behind China's
Pursuit of Free Trade Agreements, U.S.-CHINA ECONOMIC AND SECURITY REVIEW
COMMISSION STAFF RESEARCH REPORT (2015).
30
Henry Gao, China’s Evolving Approach to Environmental and Labour Provisions in
Regional Trade Agreements(2017), available at https://www.ictsd.org/opinion/china-3.
China-Switzerland Agreement on Labour and Employment, (2013).
Jale Tosun & Christoph Knill, Economy and Sustainability—How Economic Integration
Stimulates Stringent Environmental Regulations, 1 SUSTAINABILITY 1305(2009).
Simon Lester & Inu Barbee, Will Regulations Sink EU-U.S. Free Trade?(2013), available at
http://www.cato.org/publications/commentary/will-regulations-sink-eu-us-free-trade.
Elizabeth Golberg, Regulatory Cooperation – A Reality Check, M-RCBG ASSOCIATE
WORKING PAPER SERIES NO. 115 (2019).
Elizabeth Sheargold & Andrew D. Mitchell, The TPP and Good Regulatory Practices: An
Opportunity for Regulatory Coherence to Promote Regulatory Autonomy?, 15 WORLD
TRADE REVIEW 587(2016).
Junji Nakagawa, Regulatory Co-operation and Regulatory Coherence through Mega-FTAs:
Possibilities and Challenges, in INTERNATIONAL ECONOMIC LAW AND GOVERNANCE (2016).
Joana Mendes, Participation in a new regulatory paradigm: collaboration and constraint in
TTIP’s regulatory cooperation (2016).
Ching-Fu Lin & Han-Wei Liu, Regulatory Rationalisation Clauses in FTAs: A Complete
Survey of the US, EU and China, 19 MELBOURNE JOURNAL OF INTERNATIONAL LAW
149(2018).
Roberta L. Horton, Harmonizing Trademark Laws: Changes at the Heart of the
USMCA(2018), available at
https://www.arnoldporter.com/en/perspectives/publications/2018/10/harmonizing-trademark-
laws.
Sharon Treat, FAQ–Regulatory Cooperation, Harmonization and “Good Regulatory
Practices” in USMCA(2019), available at https://www.iatp.org/new-nafta-grp.
Bernard Hoekman & Charles Sabel, Open Plurilateral Agreements, International Regulatory
Cooperation and the WTO, EUI WORKING PAPER RSCAS 2019/10 (2019).
Stephen Zamora, NAFTA and the Harmonization of Domestic Legal Systems: The Side
Effects of Free Trade, 12 ARIZONA JOURNALOF INTERNATIONALAND COMPARATIVELAW
401(1995).
New Zealand Ministry of Foreign Affairs and Trade, Using the New Zealand-China FTA,
available at https://www.mfat.govt.nz/en/trade/free-trade-agreements/free-trade-agreements-
in-force/china-fta/using-nz-china-fta/.
China-New Zealand Environment Cooperation Agreement (2008).
Christopher M. Dent, Free Trade Agreements in the Asia-Pacific a Decade On: Evaluating
the Past, Looking to the Future, 10 INTERNATIONAL RELATIONS OF THE ASIA-PACIFIC
201(2010).
China-ASEAN Framework Agreement (2002).
Fatih Oktay, The Phase One Trade Deal: What’s in It for China?, The Diplomat(2020),
available at https://thediplomat.com/2020/01/the-phase-one-trade-deal-whats-in-it-for-china/.
Axel Berger, Hesitant Embrace: China’s Recent Approach to International Investment Rule-
Making, 16 THE JOURNAL OF WORLD INVESTMENT & TRADE 843(2015).
Inside CETA: Unpacking the EU-Canada Free Trade Deal. (2014).
Laurence R. Helfer, Flexibility in International Agreements, in INTERDISCIPLINARY
PERSPECTIVES ON INTERNATIONAL LAW AND INTERNATIONAL RELATIONS: THE STATE OF THE
ART (Jeffrey L. Dunoff & Mark A. Pollack eds., 2012).
Jing Tao, TPP and China: A Tale of Two Economic Orderings?, in MEGAREGULATION
CONTESTED: GLOBAL ECONOMIC ORDERING AFTER TPP (Benedict Kingsbury, et al. eds.,
2019).
31
Linh Duy Mai, CPTPP Brings Significant and Effective Change to Vietnam’s IP
Landscape(2019), available at
https://www.tilleke.com/sites/default/files/2019_JanFeb_MIP_IP_Impact_CPTPP.pdf.
Hongbin Jiao & Yuxin Liu, An IP Roadmap for Phase-One Sino-US Economic and Trade
Agreement(2020), available at
https://www.chinalawinsight.com/2020/01/articles/intellectual-property/an-ip-roadmap-for-
phase-one-sino-us-economic-and-trade-agreement/.
Cissy Zhou, China Sports Firm Illegally Used Michael Jordan’s Name but Did Not Violate
Image Rights, Top Court Rules, South China Morning Post(2020), available at
https://www.scmp.com/economy/china-economy/article/3079028/china-sports-firm-illegally-
used-michael-jordans-name-did-not.
Eugenia Kolivos & Lara Nurick, Intellectual Property, Technology Transfers and the US-
China Trade Deal: Key Takeaways for Australia(2020), available at
https://corrs.com.au/insights/intellectual-property-technology-transfers-and-the-us-china-
trade-deal-key-takeaways-for-australia.
Feng Wang, et al., China and the United States Announce “Phase One” Trade Deal - Key
Issues and Takeaways for Business(2020), available at
https://www.kwm.com/en/us/knowledge/insights/china-and-the-us-announces-phase-one-
trade-deal-key-issues-and-takeaways-for-business-2020.
Jennifer Hillman, Dispute Settlement Mechanism, in ASSESSING THE TRANS-PACIFIC
PARTNERSHIP, VOLUME 2: INNOVATIONS IN TRADING RULES (Jeffrey J. Schott & Cimino-
Isaacs Cathleen eds., 2016).
R. Michael Gadbaw, Competition Policy, in ASSESSING THE TRANS-PACIFIC PARTNERSHIP,
VOLUME 2: INNOVATIONS IN TRADING RULES (Jeffrey J. Schott & Cimino-Isaacs Cathleen
eds., 2016).
Simon Lester, Mexico's View of the Problems with the NAFTA Panel Appointment Process
(2018).
Guiguo Wang, China's FTAs: Legal Characteristics and Implications, 105 AMERICAN
JOURNAL OF INTERNATIONAL LAW 493(2011).
MICHAEL J. TREBILCOCK & JOEL TRACHTMAN, ADVANCED INTRODUCTION TO
INTERNATIONAL TRADE LAW (Edward Elgar 2nd ed. 2020).
Heng Wang, China-Led RCEP Provides Starting Point for Reducing Tensions and Building
New Global Trade Rules, South China Morning Post(2020), available at
https://www.scmp.com/print/business/article/3086149/china-led-rcep-provides-starting-point-
reducing-tensions-and-building-new.
S Korea complains to WTO about China over Thaad, BBC(2017), available at
https://www.bbc.com/news/business-39324536.
China FTA Network, The 2nd Joint Commission on China-ROK FTA Held in Seoul(2018),
available at http://fta.mofcom.gov.cn/enarticle/enkorea/enkoreanews/201808/38460_1.html.
David A. Gantz, et al., The Scorecard of the Phase One Trade Agreement (2020).
Frieder Roessler, Domestic Policy Ojectives and the Multilateral Trade Order: Lessons from
the Past Symposium on Linkage as Phenomenon: An Interdisciplinary Approach, 19
UNIVERSITY OF PENNSYLVANIA JOURNAL OF INTERNATIONAL ECONOMIC LAW 513(1998).
Kenneth W. Abbott, et al., The Concept of Legalization, 54 INTERNATIONAL ORGANIZATION
401(2000).
Victoria Donaldson & Lester Simon, Dispute Settlement, in BILATERAL AND REGIONAL
TRADE AGREEMENTS: COMMENTARY AND ANALYSIS (Simon Lester, et al. eds., 2016).
James Politi, What’s in the US-China ‘Phase One’ Trade Deal?, Financial Times(2020),
available at https://www.ft.com/content/a01564ba-37d5-11ea-a6d3-9a26f8c3cba4.
32
Thomas Franck, US Removes China from Currency Manipulator List Ahead of Trade Deal
Signing(2020), available at https://www.cnbc.com/2020/01/13/us-will-no-longer-consider-
china-a-currency-manipulator.html.
Joint Declaration of the Macroeconomic Policy Authorities of Trans-Pacific Partnership
Countries(2015), available at
http://www.treasury.gov.au/PublicationsAndMedia/Publications/2015/Joint-Declaration-by-
Trans-Pacific-Partnership-countries.
Paul Wiseman & The Associated Press, Trump Signs Japan Mini Trade Deal With No
Change in Auto Tariffs, Fortune(2019), available at https://fortune.com/2019/10/07/us-trade-
deal-japan-auto-tariffs-us-farmers-trump-signs-mini-trade-deal-with-japan/.
Trevor Cloen & Irfan Nooruddin, The U.S.-India Trade Deal Fell Through. What Happens
Now?, The Washington Post(2020), available at
https://www.washingtonpost.com/politics/2020/03/05/us-india-trade-deal-fell-through-what-
happens-now/.
