Terence P. Stewart, Law Offices of Stewart and Stewart. China s Export Restraints on Fluorspar: The WTO Dispute and its Aftermath

Transcription

1 Terence P. Stewart, Law Offices of Stewart and Stewart China s Export Restraints on Fluorspar: The WTO Dispute and its Aftermath

2 Overview I. History of China s Export Restraints on Fluorspar II. The WTO Dispute III. China s Current Fluorspar Policies IV. Conclusion

3 I. History of China s Export Restraints Export Quotas China first imposed export quotas on fluorspar in the mid- 1990s China began to tighten quotas sharply py after joining the WTO in 2001 From 2001 to 2009, the annual quota had fallen by almost two thirds, from 1.5 million MT to 550 thousand MT

4 I. History of China s Export Restraints Export Duties In 2005, China eliminated the 8% VAT rebate for fluorspar exports In 2006, China imposed an export duty of 10% on fluorspar China raised the export duty to 15% in 2008, where it remains today

5 I. History of China s Export Restraints 1200 These policies sharply reduced China s exports of fluorspar Thou usand MT Quota (MT) 1,500 1, Duty (%) 10% 10% 15% 15%

6 I. History of China s Export Restraints 3500 even as China s production of fluorspar grew Thousa and MT Production Exports

7 I. History of China s Export Restraints The export restraints also increased prices of China s fluorspar exports 350 U.S. Imports of Acid Grade Fluorspar from China 300 $/MT

8 I. History of China s Export Restraints The export restraints permitted increased domestic processing of fluorspar, and China s exports of downstream, value-added products rose sharply 180 China Exports Thousand MT HF HCFC

9 I. History of China s Export Restraints In 2008, although far less fluorspar was exported from China in its raw material form than in 2000, more fluorspar in total was exported from China than in 2000 due to the substantial increases in exports of downstream products containing fluorspar. - WTO Panel Report at para

10 II. The WTO Dispute In June August of 2009, the U.S., EU, and Mexico requested WTO consultations with China regarding a variety of export restraints, including the restraints on fluorspar The request covered the following measures on fluorspar: export duties export quotas export quota administration and licensing measures minimum export prices

11 II. The WTO Dispute In 2010, while the dispute was pending, China instituted a number of changes to its fluorspar policies: terminated the export quota on fluorspar introduced mining and production targets for fluorspar raised the resource tax on fluorspar imposed standards d for new firms entering the fluorspar industry issued a new policy encouraging downstream producers to vertically integrate with fluorspar mines

12 II. The WTO Dispute The WTO Panel Report, issued in July 2011, found many of China s export restrictions violated China s WTO obligations In January 2012, the WTO Appellate Body upheld some, but not all, of the Panel s findings Where China was found to have violated its obligations, it has until December 31, 2012 to bring itself into compliance

13 II. The WTO Dispute Claim Panel Ruling AB Ruling Result Violate China s Violate China s China has until Dec. 31, Export Duties Protocol of Accession Protocol of Accession 2012 to come into compliance Export Quotas Quota Allocation and Export Licensing Requirements Violate GATT Not Appealed to China eliminated quota Art. XI:1 the AB in 2010 Violate China s Protocol of Accession and GATT Art. XI:1 Panel should not have addressed; findings have no effect Minimum Export Pi Prices Violate GATT At Art. XI:1 XI1 Panel should not have addressed; findings have no effect Measures existed to administer quota that is now eliminated China replaced with new measures in 2010

14 I. The WTO Dispute Claim 1: Export Duties In its Protocol of Accession, China agreed to eliminate export duties except for those reserved (at specified levels) on 84 items Acid-grade and metallurgical-grade fluorspar are not among the items on which China reserved the right to impose export duties The Panel found that China s 15% export duty on fluorspar is thus a facial violation of China s WTO obligations

15 I. The WTO Dispute Claim 1: Export Duties China argued that the export duties were nonetheless justified under Article XX(g) of GATT 1994 Article XX(g) permits countries to impose measures that violate WTO commitments if the measures relat[e] to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption; The Panel ruled that China could not invoke Article XX(g) to justify a violation of its Protocol, which did not incorporate the exception The Panel also examined the claim on its merits and found it unpersuasive

16 I. The WTO Dispute Claim 1: Export Duties Panel s findings on the merits of China s Art. XX(g) claim Export duties do not relate to conservation Place of consumption does not matter for conservation, yet duties are placed only on exports the level of duties bears no relation to stated conservation objectives production and consumption continue to increase despite duties export duties can harm conservation efforts by lowering domestic prices and increasing domestic demand

17 II. The WTO Dispute Claim 1: Export Duties Panel s findings on the merits of China s Art. XX(g) claim Export duties are not imposed in conjunction with restrictions on domestic consumption or production Resource tax, raised to the equivalent of 1% in 2010, is not an effective restriction on extraction Compensation fee structure incentivizes, rather than restricts, extraction 2010 mining and production targets were set higher than actual 2009 production levels, and thus are not restrictive

18 II. The WTO Dispute Claim 1: Export Duties China appealed the Panel s findings on export duties to the Appellate Body The Appellate Body affirmed the Panel s findings that the export duties violate China s WTO commitments and that Article XX(g) was not available as a justification Chi h til D b t b i it lf i t China has until December 31, 2012 to bring itself into compliance

19 II. The WTO Dispute Claim 2: Export Quotas The Panel found that China s export quotas on fluorspar violate Article XI:1 of GATT 1994, which prohibits quantitative restrictions on exports China did not try to defend the export quota on fluorspar as a conservation measure Chi li i t d th t t fl i 2010 hil China eliminated the export quota on fluorspar in 2010, while the disputer was pending

20 II. The WTO Dispute Claims 3 and 4: Export Quota and License Administration The Panel found certain quota allocation rules for the fluorspar export quota violated China s Protocol of Accession The Panel also found that export licensing requirements used to administer the export quota violated Article XI:1 of GATT 1994 As China eliminated the export quota on fluorspar in 2010, these measures are no longer applicable to fluorspar exports

21 II. The WTO Dispute Claim 5: Minimum Export Prices The 2001 Charter of the China Chamber of Commerce of Metals, Minerals, and Chemicals Importers and Exporters ( CCCMC ) directed the organization ation to coordinate the export trade activities ities of its members and sanction breaching companies The Panel found the 2001 Charter imposed a minimum export price requirement in violation of Article XI:1 of GATT 1994 While the dispute was pending, China issued a revised 2010 CCCMC Charter that China claims eliminates any authority to regulate industry price coordination ato

22 II. The WTO Dispute China s export duties on fluorspar violate WTO rules China has until December 31, 2012 to eliminate i them China s export quotas on fluorspar violate WTO rules China eliminated i the export quota in 2010 China s quota allocation rules, export licensing requirements, and minimum i export prices were found to violate WTO rules, but these findings were set aside Quota allocation and licensing measures appear to no longer apply as export quota has been eliminated Minimum export price measure appears to have been superseded by 2010 CCCMC Charter

23 III. China s Current Fluorspar Policies China has eliminated its export quotas on fluorspar Yet it has continued to apply export duties of 15% to fluorspar in new duty rate schedules es issued for 2010, 0, 2011, and 2012, while the WTO dispute was pending It has until December 31, 2012 to terminate the export duties Its duty schedule for 2013 is expected in early December of this year

24 III. China s Current Fluorspar Policies Published measures on export licenses and minimum export prices appear to have been withdrawn or superseded Because the Appellate Body set aside these findings, China has some leeway to re-introduce such measures Unknown how another Panel would address the measures and if it would also find violations if a case were brought

25 III. China s Current Fluorspar Policies The mining and production targets China introduced in 2010 and cited in defense of its export duties appear to have lapsed In 2011, a new mining target was published but no production target was published In 2012, neither a mining nor production target was issued

26 III. China s Current Fluorspar Policies In 2010 China introduced new industry policies for the fluorspar and hydrogen fluoride industries China is also reportedly developing a Fluoride Industry Guidance Opinion that promotes consolidation of the fluoride industry Together, the policies appear aimed at ensuring fluorspar production continues to be dedicated to further processing in China so the country can move up the value chain in downstream industries The policies aim to achieve the same goals as export restraints, but instead do so through industry restructuring and guidance

27 III. China s Current Fluorspar Policies Fluorspar Industry Access Standards Industry access standards for fluorspar appear to support the restructuring and integration goals for the downstream industry Under the industry standards New entrants in the fluorspar industry must comply with relevant industry yp plans, scale of production requirements, comprehensive resource utilization rates, and quality requirements Fluorspar mining companies with advanced technologies are encouraged to merge with or acquire smaller scale mines

28 III. China s Current Fluorspar Policies Hydrogen Fluoride Industry Access Standards Hydrogen fluoride (HF) is the primary chemical produced from fluorspar, and it is the starting material for other fluorinated chemicals In 2008, China had 50% of global HF capacity The new industry standards Encourage mergers and acquisitions Require HF plants to have a minimum capacity of 50,000 t/yr Encourage existing HF produces to acquire fluorspar mines Prevent expansion or entry into HF industry by firms without dedicated fluorspar resources Forbid purchasing fluorspar from unlicensed companies

29 III. China s Current Fluorspar Policies The policy is intended to improve integration of the fluoride industry by establishing larger vertically integrated companies producing higher value downstream products. China is already the world s leading fluorspar consumer and its share of global consumption will likely continue to increase in the future. - U.S. Geological Survey, 2011

30 III. China s Current Fluorspar Policies The policies have spurred vertical and horizontal integration of China s fluorspar industry In 2011, Sinochem, China s largest fluorine manufacturer, acquired Fujian Jianyang Kings Fluoride Industry Co., Ltd. and Fujian Jianyang Kings Mining Industry Co., Ltd., strengthening its fluorite resources Also in 2011, Do-Fluoride Chemicals Co. Ltd., the world s largest fluoride salt manufacturer, increased its shares in several Chinese mining companies, whose fluorspar powder will be sold exclusively to Do-Fluoride

31 III. China s Current Fluorspar Policies China s 2010 and 2011 fluorspar exports recovered to pre-2009 levels, but they appear to be declining sharply in Export Quotas End Panel Decision Thousand MT WTO Cases Start AB Decision e Source: China Customs (2012 estimated based on first seven months)

32 III. China s Current Fluorspar Policies Even assuming China s domestic fluorspar production did not grow in 2012, it is likely to export a smaller portion of production in 2012 than any year since 2009 orts as % Production 25% 20% 15% 10% WTO Cases Start Export Quotas End Panel Decision AB Decision Exp 5% 0% e Source: USGS; China Customs (2012 estimated based on first seven months)

33 III. China s Current Fluorspar Policies Average unit values of China s fluorspar exports are also rising U.S. Imports of Acid Grade Fluorspar from China $700 AB Decision $/M MT $600 $500 WTO Cases Start Export Quotas End Panel Decision $400 $300 $200 $100 $ Source: USITC Trade DataWeb (2012 first seven months)

34 III. China s Current Fluorspar Policies Meanwhile, China s exports of value-added downstream products continue to rise Thousa and MT China Exports e HF HCFC-22 HFC-134a Source: China Customs (2012 estimated based on first seven months); no comparable 2012 data available for HCFC-22 due to change in tariff classification

35 IV. Conclusion The WTO dispute over China s export restrictions on fluorspar and other raw materials established that China s export duties and quotas are inconsistent with China s WTO obligations The WTO Panel examined China s claims that export restraints were The WTO Panel examined China s claims that export restraints were related to conservation and disagreed, noting that China s production and consumption, as well as export of further processed products have increased while export restraints tightened

36 IV. Conclusion As a result of the dispute, China eliminated its export quota on fluorspar and has until the end of the year to eliminate its export duties on fluorspar Meanwhile, China appears to have adopted alternative strategies to ensure domestic fluorspar is further processed in China before export, including an aggressive industrial policy for the downstream industry