Vol. 21 No. 10 (October, 2011) pp.611-618.
THE EU, THE WTO AND CHINA:LEGAL PLURALISM AND INTERNATIONAL TRADE REGULATION,
by Francis Snyder, Oxford and Portland, Oregon: Hart Publishing, 2010. 533pp.
Hardcover. £75.00. ISBN: 9781841137049.
Reviewed by Dr. Sideek M. Seyad, Faculty of Law, Stockholm University, Sweden.
Email: sideek.mohamed [at] juridicum.su.se.
It is purely a coincidence that this book had to be reviewed in Beijing during
my research visit as a guest of the Institute of Law of the Chinese Academy of
Social Science in the summer of 2011. Snyder himself had been a guest of the
Institute of Law and Peking University, and some parts of this book appear to be
based largely on his lectures at these highly reputed and acclaimed academic
centres in China. Apart from dealing specifically with various issues of global
governance in relation to China, the book also focuses on the emergence of new
norms such as soft law as opposed to hard law.
This is a collection of scientific papers that were previously published in
well-reputed law journals spanning over a period of about ten years. The fact
that such articles are codified into a book does not devalue its contents or its
originality. In fact, as Snyder himself acknowledges, most of the papers have
been updated and others revised or rewritten, which in turn further enhances and
refines their quality. The diverse and complex legal issues dealt with by Snyder
are extremely dynamic and fluid in nature. By adding and subtracting some
portions of his previous articles, Snyder has thus transformed it into an
excellent piece of scientific work, enriching it both in terms of quality and
quantity.
As far as the structure is concerned, it is clearly and precisely divided into
different parts and chapters, thereby making it reader-friendly. Apart from the
short introduction, the first part is divided into four chapters in which Snyder
introduces a host of interesting concepts such as globalisation, sites of
governance and global legal pluralism. The second part develops further the
concepts introduced in the first part and divides them into four chapters. In
this part, Snyder clearly explains the relations between the European Union
(EU), China and the World Trade Organization (WTO) as three distinct but
interrelated sites of governance. The third and final part consists of two
chapters dealing specifically with international trade regulation, regional
integration and global governance.
Since the early 1950s there has been an explosion of international and regional
organizations followed by the emergence of new norms of governance such as soft
laws. The birth and development of these institutions and norms have
correspondingly posed a new challenge in the field of global governance. One of
the earliest regional organizations to be established was the EU, whose initial
membership of just six countries has now jumped to 27. The EU has grown not only
in terms of its membership but also its objectives as the process of [*612]
integration has widened and deepened over the years. China, which is also taken
as a case study, has recently overtaken Japan as the world’s second largest
economy, and in 2011 it completed ten years of its membership in the WTO.
All these international developments have posed new challenges to the question
of global governance. The emergence of these new organizations and power
structures raises the question of how to identify and establish new norms of
governance to regulate the relationships between these actors. International
organizations such as the EU have their own rules and regulations but they must
co-exist with other sites of governance, different norms, and diverse economic
and political values. Even within the EU, norms do not always apply evenly to
all its Member States; the best example is that of the Euro, the single currency
of the majority of the EU member states.
All of these developments taking place at the international, regional, and
domestic level have drawn legal scholars to propose new theories and prescribe
innovative mechanisms to establish and develop a system of good governance
between the global organizations and states. It is in this context that the work
of Snyder regarding the multiplicity of sites of governance and global legal
pluralism should be viewed and appreciated. The issue of global legal pluralism,
as Snyder himself claims, is at the heart of the book.
With these brief comments placed as the background, it will be useful to briefly
summarise the content of the book. In the first chapter dealing with the
relationship between globalisation and law, Snyder not only provides ample
reference to a vast source of literature but also introduces the concept of
sites of governance and the theory of global legal pluralism.
At the very outset, Snyder rightly points out that globalisation has had an
impact on many areas of law. There are some areas of law, such as in the field
of financial services, that experience a greater impact due to globalisation
than, for instance, family law. In the process of legal globalisation, there is
a tendency for national legal fields to become international and at the same
time for national and local institutions, concepts, and norms to have an impact
on international concepts.
Globalisation has also given rise to the development of new institutions and new
types of norms. On the institutional side, there are several entities such as
WTO regulating world trade and debt security rating agencies that in recent
times have downgraded the credit worthiness of countries ranging from the
smaller Greece and Portugal on up to Italy and the more powerful USA.
Snyder explains the nature and scope of the application of soft law in general,
which had its origin in international law but has become increasingly
significant in national legal systems and at the regional level, such as in the
EU. While asserting that most of the research is done by western scholars on the
new institutions and norms, such as in the field of international human rights,
labour law, migration, and environment, Snyder regrets they are carried out
without giving sufficient attention to [*613] the ideas of their counterparts
from the other continents.
The emergence of these new institutions and norms has in turn raised the
important issue of governance of globalisation. In order to find an answer to
the question of how globalisation is governed, Snyder analyses four distinct
theories based on contract, hierarchy, transnational networks, and global legal
pluralism and identifies their strengths and weaknesses. He concludes with a
discussion on the problems confronting global governance, particularly in light
of the 2008 global financial crisis, highlighting the need for further research
on the role of law in order to reform the global governance. Snyder strongly
suggests that in a world of increasing legal pluralism, the reform measures
should take into consideration other legal cultures from Asia, Africa and Latin
America.
The second chapter examines the link between economic globalisation and the law
with special reference to international trade. Snyder briefly defines what
constitutes globalisation by reference to economic, political, social and legal
processes. He skilfully highlights how globalisation and law influence and
condition each other, identifies some of the main issues in the field and then
introduces the concepts of sites of governance and global legal pluralism. There
are various arguments adduced to establish the claim that globalisation is
governed by a multiplicity of sites, or what is often referred to in this book
as global legal pluralism.
In order to highlight the interconnection between globalisation and global legal
pluralism and to promote the theory of global legal pluralism, Snyder takes as a
case study the complex international toy industry representing several chains of
actors and countries located across the globe that are subject to different
economic, political and legal cultures. The case study shows the plurality of
legal systems in action, ranging from US Intellectual Property Law and Japanese
Antitrust Law Customs Law of the EU, all of which directly or indirectly govern
the global trade in toys.
Chapter three further elaborates on the concept of sites of governance and the
theory of global legal pluralism. Here Snyder addresses the question of how
economic globalisation is governed through a case study on the regulation of
international trade between the EU and China, which essentially forms one of the
fundamental themes. He further divides each site of governance into two
dimensions, namely structural dimension and relational dimension, the latter
referring to relations between the site and other sites of governance. These
sites deploy a wide variety of legally binding measures labelled as hard law,
with those norms that are not legally binding known as soft law. Snyder suggests
that the totality of sites of governance should be viewed as a new form of
global legal pluralism. Within each site of governance, in a precise and
concrete manner, Snyder highlights several individual components such as
competition policy, property arrangements, and modes of labour control, by
reference to the international commodity chain.
The aim of chapter four is to examine the foundations of global legal pluralism.
Snyder explains the correlation between [*613]international economic integration
and trade, the disintegration and fragmentation of production, and the rise of
global legal pluralism. In due course these relationships contribute to changes
in institutions, norms, and dispute resolution processes. These interrelations
are thoroughly examined by reference to the relations between the EU and China,
taking as a case study the anti-dumping dispute between these parties, known as
the Chinese Bicycles Anti-Dumping Saga. The case study shows how the EU
anti-dumping law has been transformed into a form of regulation of both
international and domestic competition.
The impact of WTO law on the EU is the theme of chapter five. These are two
important sites of governance and in this context Snyder refers to the role of
the ECJ as a gatekeeper between the EU and WTO. This chapter is more of a case
study of law emanating from both the ECJ and the WTO dispute settlement
mechanisms. The effects of the WTO on the EU legal order, the WTO and the
individual, and also the relations between the EU and its member states are
clarified by the ECJ; the author describes them as “the three generations of
relations between the GATT/WTO and the EC/EU sites” (p.203).
A survey of case law shows that WTO law has contributed to the expansion of the
normative resources available to EU institutions, especially the ECJ. The latter
has consistently denied granting direct effect of the WTO rules. Case law has
contributed to an increasing normative integration between the WTO and EU, but
it has also weakened the position of individuals within the EU legal order. In
addition, WTO law as interpreted by the ECJ has tended to foster tighter
relations between the EU and its member states. Snyder suggests that it is time
for the judiciary, the legislature or the executive of the EU to chart new
relations between the EU and the WTO.
In the process of interaction between different sites in a world of global legal
pluralism, a series of new norms has emerged; they are identified and some of
them discussed in chapter six. The concepts of anti-dumping and non-market
economy, which find much expression in the preceding chapter, are subject to an
extensive, detailed, and critical discussion. Snyder examines their historical,
philosophical, and legal foundations by reference to different jurisdictions,
including the sites of governance covered in the book. The ways in which
relations between sites of governance gave birth to these new legal concepts are
articulated in a clear, critical, and methodical manner.
The next chapter examines the ways in which relations between sites of
governance can change the structural features of sites such as norms and
presents the relations between the EU and China as a case study to establish
this point. The discussion is of particular interest to those interested in the
origin, sources, development, and effects of soft law. Snyder states that soft
law may sometimes become hard law by judicial or legislative intervention, but
the following discussion is confined only to the latter category.
Further developing the preceding discussions on EU anti-dumping rules, Snyder
critically examines an exception to such rules based on what is known as
individual treatment for some category [*615] of Chinese firms exporting into
the EU market. This case portrays in a vivid and comprehensive manner how this
exception, initially based purely on the administrative practices of the
European Commission, gradually developed into soft law and then crystallised
into a hard law regime.
Apart from the conventional sites of governance such as the EU, the WTO and
China, chapter eight explores the emergence of a site of governance within a
site, which is labelled as an international production network (IPN). The well
known and important motors of globalisation are the multinational companies and
international financial markets, both of which operate beyond national and
regional boundaries. The kind of governance covered often arises out of
relations between regional integration schemes and economic globalisation in the
form of IPNs. As a case study, the legal foundation of IPNs on EU law is
thoroughly examined in this chapter. Snyder makes it abundantly clear through
reference to legal materials, case law and other useful legal sources that EU
law fosters, structures, and channels these transnational economic
relationships. At the same time Snyder repeatedly argues that globalisation and
regional integration are both friends and foes mutually enforcing but also
competing with each other. He discusses at length both through reference to hard
law and case law the EU’s customs operations known as inward and outward
processing procedure, which represent one of the organisational forms of IPNs. .
In recent times there has been a surge in the number of regional trade
agreements (RTA) that China has entered into, especially with its immediate
neighbours. The reasons for such economic cooperation, which give birth to new
sites of governance, form the subject of discussion in chapter nine. The kind of
agreements China has entered into both within Asia and beyond are
compartmentalised into three clear categories: economic integration agreements,
standard regional trade agreements with countries in the Asia-Pacific regions,
and bilateral free trade agreements with non-Asian countries. Their aims and
objectives are discussed in a simple, clear, and straightforward manner. Snyder
also examines their level of compliance with WTO law focusing mainly on
safeguards, rules of origin, and dispute settlement mechanisms.
The last chapter explores the role of ethical issues such as human rights and
environmental protection in the field of international trade regulation and
global governance. The ethical issues are not harmonious sets of conduct or
behaviour common to all sites of governance. It is also not an easy task to
determine whether and to what extent they will be politically and socially
acceptable within different sites of governance. The matter of ethics in
international trade regulation thus poses a major challenge to global
governance. Snyder seeks to find an answer to this challenge by reference to WTO
law. After examining the relations between the WTO and other sites of
governance, such as various agencies of the United Nations, he concludes that
the WTO can effectively take account of ethical issues in international trade by
strengthening its relations with other sites of governance.
Let me shift from summary to evaluation. The language used in this book may
appear to be a little too heavy on readers from non-English speaking countries,
as presumably one of its main target groups is the Chinese. However, by
investing a little extra time and effort, readers will certainly not find it
difficult to absorb the substance of this excellent piece of legal research on
global legal pluralism. Readers with a background in EU law and WTO law will
however be distinctly at an advantage in understanding and appreciating this
work as it touches much upon legal materials, case law, and various concepts
that are peculiar to these sites of governance. Even though China is one of the
main actors in this book, by intent or omission there is insufficient reference
to legal sources from this particular site of governance.
The main emphasis is on globalisation and global legal pluralism. The process of
globalisation does not always move in the forward direction. There are
exceptions where a reverse trend is also detectable, particularly in the context
of the EU. Such a development could arise when the required level of
liberalization and integration within the EU’s single market has been attained.
With successive treaty amendments, the EU began to assume more competence in
several policy areas that had been the monopoly of its member states. The
financial market is a case in point: since the coming into force of the Single
European Act in 1985, several legal measures were adopted based on the so-called
minimum harmonization rules. The implicit long-term objective of these legal
measures is to develop and unify all the national markets into a strong and
single European financial market. When such a target is achieved, the financial
market will be subject to a single set of rules, and to that extent the theory
of legal pluralism will correspondingly lose its relevance, at least within the
parameters of the European financial market. However, the externalities of the
European financial market will continue to attract the other sites of
governances within the framework of global legal pluralism.
Snyder states that internationalization of legal fields has traditionally been
the monopoly of Western countries and now with emerging economies like China and
India asserts it is time for such dominance to end. Undoubtedly this had been
the case in the past, but the current developments in China and not least in
India appear to break this long-held academic monopoly. China for example is now
open not only to global commerce and trade but also to the academic world as
well. This has resulted in the mobility of scholars between China and the
western world. The outcome of this transaction is that Chinese scholars have
become equal or even more progressive in doing research in these areas, both at
home and in several foreign universities.
It is also useful to refer to the outcome of several G-20 meetings held at the
height of the financial crisis. At these meetings the heads of states or
governments representing countries ranging from the US and the EU to China,
India, and Brazil agreed upon several global financial market reform measures.
All such agreements and understandings were reached only after careful and drawn
out deliberations; these were not imposed upon any country or organisation under
any form of direct or indirect political or economic pressure. This is just one
example that [*617] satisfies Snyder’s concerns of ensuring that countries like
China are on board as equal partners in the regulation of the global financial
market. Such a trend to move towards consensus and accommodation between
different sites of governance is also visible in other fields of international
relations, such as within the framework of the United Nations.
Regarding the discussion on the origin and evolution of new norms within and
between sites of governance, Snyder rightly asserts that a hard law becoming a
soft law “appears to be rare, though probably not unknown” (p.207) but does not
go into any further detail. It is useful to fill this speculative vacuum by
giving a rare example in the context of the EU, whereby a hard law was
downgraded to the category of soft law. For instance, the original treaty basis
for the adoption of Council Directive 88/361/EC on free movement of capital was
repealed and replaced by the Maastricht Treaty in 1994. This legal instrument
not only provided for the liberalization of the free movement of capital but
also incorporated an annex containing a long list of capital transactions. As a
result of the amendment, Council Directive 88/361/EC no longer formed the legal
basis in this branch of the EU’s internal market. Even though this hard law lost
its legal standing, ECJ continues to rely on it as a source of “indicative
value,” in order to ascertain what constitutes capital for the purposes of
Article 63 of the Treaty on the Functioning of the EU. It is significant to note
that this treaty provision does not provide any definition or guidelines to
ascertain what constitutes capital or capital movements.
Snyder suggests that the imposition of anti-dumping measures on the Chinese
bicycle industry is an illustration of the use and abuse of the EU anti-dumping
law, especially by reference to the concept of “non market economy.” His
critical evaluation of the Commission decision to impose anti-dumping measures
and its confirmation by the ECJ need to be qualified. The imposition of
anti-dumping measures may have some elements of protectionism but are authorized
by national, regional, and international law. Such measures are not illegal,
particularly under EU law, and as discussed in the book it could be challenged
before the General Court if a final appeal is available on a question of law to
the ECJ.
There has been a traditional distinction between the so-called market economy
largely led by the western countries and the non-market economies of the former
Soviet Union, China, and other eastern countries. Since the inception of the EU
in 1958, the foundation of its single market has always been based on the
principle of an open market economy with free and fair competition. It is one of
the mandatory entry requirements for applicant countries that wish to join the
EU.
At the time of the dispute, the Chinese economy was totally state-controlled and
the concept of a free market was almost unknown. Even though China began to
gradually open up its market some thirty years ago, it was only in 2001 that it
joined the WTO and thereafter opened its economy to inspection and competition
with the outside world. In light of these circumstances, the decision by EU
institutions to impose anti-dumping measures on China, [*618] particularly after
giving a full hearing to all affected parties, is legal and defensible. However,
as rightly pointed out by Snyder, such anti-dumping measures have an expiry
period, and further extension of such measures should certainly take into
consideration the current level of openness and accommodation of foreign
competitors in the Chinese market.
All in all, Snyder has achieved his primary objective, which is to contribute to
the understanding of the roles of sites of governance and highlight the
significance of global legal pluralism in international trade regulation. It is
not only innovative in style and approach but also an invaluable contribution to
a relatively underdeveloped area of legal research in the field of international
trade law. I can warmly and wholeheartedly recommend this book as an excellent
legal companion to those interested in International Trade Law, ranging from
lawyers, international jurists, and trade diplomats to advanced students in law,
political science, and commerce.
© Copyright 2011 by the author, Sideek M. Seyad.