Dialogue with Professor Guo Shoukang

2012/6/7Dialogue with Professor Guo Shoukang,[Comprehensive Reports]

Prof. Guo Shoukang teaches at Renmin University of China. He is also a famous scholar in the field of international trade and IP laws in China. In 1980, as an official representative of the Chinese government delegation, he participated in the conferences on the revision of Intellectual Property Protection Paris Convention held in Geneva and Nairobi. In 1986, he participated in the negotiations concerning China’s rejoining GATT (Uruguay Round) as a member of the expert panel. From 1989 to 1992, he participated in the first round of negotiation on issues concerning Sino-US intellectual property. In October, 2000, he gave a series of lectures on “China’s Legislation and Accession to the WTO” to the Standing Committee of the 9th National People’s Congress. Later on, he became the vice president of WTO Research Society of China Law Society. Prof. Guo has written and translated many books on legal issues related to the WTO.

We are very fortunate to have the chance to interview such an “arbiter” in WTO as well as a participant and witness in the negotiations concerning China’s accession to the WTO. Let’s listen to him to tell us how China’s accession to the WTO has greatly promoted China’s legislation and IP development.

 

China IP: What are the restraints and influences of the WTO rules upon the legal norms of its members?

Prof. Guo: WTO, according to the authoritative interpretation of its Secretariat, is the only international organization in the world that formulates the trade rules among nations (separate customs territories) with the WTO Agreements as its core. It has provided the basic legal rules for international business activities. The WTO Agreements are international legal documents which have entered into effect through agreement and signature of members. They have become the basic legal framework of the international trade system and order as well as the main content of the WTO legal system. The nature of the WTO Agreements is a set of rules for international trade that defines the rights and obligations between the members. WTO is regarded as a system of rules that strives at open, fair and non-distorted competition.

People often call the international law “the soft law” because it does not have the forceful measures as the national law to ensure its implementation. The WTO rules have gone much further in this aspect, which has great influence upon the historical development of the international law. The WTO rules get involved extensively into the economy, politics and social life of the members and their influence is comprehensive, profound and long-lasting. The obligations of the members according to the WTO rules are mainly implemented through the national legislation of the members, requiring that the national laws, regulations, administrative decisions and judicial decisions must conform to the WTO rules. Therefore, the WTO norms are considered as higher than the legal norms of the member countries. If the economic legislation of a country is in conflict with the WTO rules, it might be adjudicated as violating the WTO rules and be sanctioned.

Experience has proved that no matter how complete the international economic and trade rules are, they will perform no function and exist only in name if there is no effective measures to safeguard their implementation. Summarizing the historical experience, the WTO rules have not only formulated extensive code criteria, but also stipulated feasible and effective measures to ensure the implementation of the norms, by giving teeth to the international law. The measures mainly include transparency requirement of laws and regulations, notification requirement, trade policy validation system, and dispute resolution system, all of which belong to the safeguard mechanism for the implementation of the WTO rules.

China IP: What responsive measures in legislation has China taken after joining the WTO?

Prof. Guo: On July 10th, 1986, the Chinese government officially proposed “the restoration of its status of a contracting state in GATT.” After the WTO was founded, China’s “rejoining the GATT” negotiations changed to “joining the WTO” negotiations in November, 1995. Through 15 years of lengthy and complicated negotiations, China finally became an official member of the WTO on December 11th, 2001. After China’s accession to the WTO, besides being entitled to the proper rights of a member of the WTO, China also bears the obligations which a WTO member should undertake. The rights and obligations are also reflected in legislation. On the one hand, China has the obligation to join China’s laws and regulations to the WTO rules according to the relevant regulations of the WTO; on the other hand, China also has the right to formulate and revise relevant laws and regulations within the allowable range defined by the WTO in order to protect its interests.

 After joining the WTO, China not only enjoys its proper rights, but also undertakes its obligations, achieving the balance and integration of rights and obligations. Accession to the WTO has brought new requirements for legislation in China. The first problem China was facing was how to draw together or join the Chinese laws and regulations and the WTO rules. Actually, the responsive legislative measures in light of the WTO rules conform to China’s own legislative targets. Considering the legal environment in China at the time of accession to the WTO, China has taken three kinds of responsive measures including formulation, revision and abolishment: “formulation” means formulating new laws and regulations required or allowed by the WTO rules which conform to the rules of operation of market economy; “revision” means revising the content in the current laws and regulations that does not conform to the WTO rules, or supplementing some laws and regulations which are insufficient; “abolishment” means abolishing the regulations that do not conform to the WTO rules.

China IP: How to understand and treat the impact and function of “accession to the WTO” upon China’s IP legislation correctly?

Prof. Guo: I have mentioned earlier that China had to face a difficult task after “joining the WTO” which is to revise the overall China’s current laws in order to adapt to the IP-related WTO Agreements. At that time, we were only thinking about “jumping onto the bandwagon” and leaving other issues to be considered later. The IP law was a great step for China towards modernization and internationalization. Of course, the primary cause for these achievements is the opening up policy. Besides, “accession to the WTO” has also greatly promoted these processes. As to IP, China still has a lot of work to do at present.

China IP: What should China pay special attention to in the process of legislation at that time?

Prof. Guo: We should see that the revision of laws in China was an extremely difficult task. Besides the large amount and the wide range of work, some members of the WTO found fault with China in its policies, laws and practices. They even picked a quarrel with China through the dispute resolution system of the validation system. Therefore, China has to be fully prepared, no matter in law or in mind. The most important thing is that the formulation and revision of laws should protect as much interest of China as possible.

China IP: Presently, China has brought forward the concept of building an innovative nation,. And the government recently often emphasize on proprietary IPR. How do you explain these policies? Do you have any suggestions for the Chinese government?

Prof. Guo: I have always been insisting on the notion that introducing foreign operations into China might accelerate the speed of building China into an innovative nation. My understanding is that independent innovation and technical import are not contradictory. Proprietary IPR does not mean that we are closing ourselves to the outside world or reducing technical import and are doing everything on our own. Although Japan is a very developed country, they are still importing large amount of technology. According to statistics, their technical import is actually more than technical export. Almost all the large companies in the world are cooperating with each other in their business. One company is using the resources of another. It’s impossible that one single company is creating everything. There must be exchange among them. This situation is not a temporary phenomenon in today’s world. Even in the future when we become much stronger, we still have to do our business in such a way. Independent innovation is right, but we should also pay attention to the technical development in the world. Innovation is a premise for negotiation and cooperation with others; otherwise no one will cooperate with you.

(Translated by Snow Li)

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