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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II APPLICATION FOR INVESTIGATIONS CHAPTER III EXAMINATION AND ACCEPTANCE OF CASES CHAPTER IV INVESTIGATIONS AND AFFIRMATION CHAPTER V SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. The present Rules have been formulated on the basis of the Foreign Trade Law of the People's Republic of China for the purpose of carrying out and regulating the investigation of foreign trade barriers, eliminating the effects of trade barriers of foreign countries upon china and promoting the normal development of foreign trade. Article 2. The Ministry of Foreign Trade and Economic Cooperation (hereafter "MOFTEC") is in charge of the investigation of the trade barriers and investment barriers of foreign countries. The MOFTEC designates the Bureau of Fair Import and Export Trade to be responsible for the implementation of the present Rules. Article 3. Any of the measures implemented by or upon the support of the government of foreign countries (regions) which have the effect of distorting trade and meets any of the following requirements shall be deemed as a trade barrier: (1) The measure concerned is in violation of the multilateral trade conventions joined by both China and the foreign country (region) concerned or of the bilateral trade agreements concluded between China and the foreign country (region) concerned; (2) The measure concerned has constituted or may constitute an unreasonable barrier or restriction which prevents China's products or services from entering into the market of the foreign country (region) or any third country (region); (3) The measure concerned has caused or may cause unreasonable injuries to China's products or services in the market of the foreign country (region) or of any third country (region). Where the government of any foreign country (region) fails to fulfill the obligations provided in the multilateral trade agreements joined by both China and the foreign country (region) or the bilateral trade agreements concluded between China and the foreign country (region) concerned. Article 4. The MOFTEC may, upon the request of applicants, set down a case for investigation of trade barriers. Where the MOFTEC believes it necessary, it may set down a case upon its own initiative for investigations of trade barriers. CHAPTER II APPLICATION FOR INVESTIGATIONS Article 5. Any domestic enterprise or industry or any natural person or legal person or any other organization that represents any of the domestic enterprises or domestic industries (hereafter referred to, in general, "the applicant") may, file an application to the MOFTEC according to the present Rules for investigations of trade barriers. The term "domestic enterprise or industry" mentioned in the preceding paragraph refers to the enterprise or industry that is directly connected with the products or services that are in which the trade barriers concerned are involved. Article 6. Any application for investigation of trade barriers shall be submitted in written form. The application shall, where possible, include the following elements: (1) The name, address and other relevant information about the applicant; (2) An account of the measure or practice that is applied for investigations of trade barriers; (3) An account of the products or services that have been affected by the measure or practice of trade barrier, and an account of the basic information of the relevant domestic industry; (4) An account of the injuries that have been caused or may be caused to the applicant or the domestic enterprises or industry which the applicant represents; and (5) Other matters that the applicant feels necessary to give an account of. Article 7. The application shall be supported by the evidential materials mentioned below and specify the source of such materials: (1) Evidential materials about the existence of the measure or practice against which an application is filed for investigation of trade barriers; (2) Evidential materials about he injuries that have been caused or may be caused by the measure or practice against which an application is filed for investigation of trade barriers. In case the applicant finds it impossible to provide the aforementioned evidential materials, he shall make an explanation in written form. Article 8. The applicant may withdraw his application before the MOFTEC decides to accept it as a case. CHAPTER III EXAMINATION AND ACCEPTANCE OF CASES Article 9. The MOFTEC shall examine the application materials and decide whether to accept it as a case or not within 60 days as of receiving the application and relevant evidential materials submitted by the applicant. Article 10. In the process of examining the application materials, the MOFTEC may demand the applicant to provide supplementary materials within a prescribed period of time. Article 11. Where the application materials of the applicant meet the requirements provided in Chapter II of the present Rules, and none of the circumstances mentioned in Paragraphs 1, 3 and 4 of Article 14 of the present Rules exist, the MOFTEC shall decide to accept the application as a case and investigate the measure or practice which is charged as a trade barrier. Article 12. The decisions about accepting cases for investigation shall be publicized by the MOFTEC. The public announcements shall clearly specify contents such as the measures or practices of trade barriers, the products and services involved and the countries (regions) involved, etc., and shall include a brief account of the information that has already obtained, the time limit for the interested parties to make their statements and the general public to make their comments. The MOFTEC shall, after publishing an announcement of accepting a case, inform the applicant, the known export business operators and import business operators, the government of the countries (regions) to be investigated and other interested parties. Article 13. The day when the announcement of accepting a case is published shall be the day when the case is accepted. Article 14. Under any of the following circumstances, the MOFTEC may decide not to accept an application as a case: (1) The facts narrated in the application of the applicant is obviously inconsistent with the actual facts; (2) The application materials are not complete, and the applicant fails to submit supplementary materials within the time limit prescribed by the MOFTEC; (3) The measures or practices charged by the applicant is obviously not a trade barrier mentioned in Article 3 of the present Rules; (4) Other circumstances under which the MOFTEC thinks that the application shall not be accepted as a case. Article 15. The applicant shall be informed of the decision not to accept the application as a case together with an explanation of the reasons. Article 16. Where the MOFTEC decides, on its own initiative, to investigate a trade barrier as a case, it shall publish an announcement of accepting a case. CHAPTER IV INVESTIGATIONS AND AFFIRMATION Article 17. The MOFTEC shall affirm whether the charged measures or practices constitute a trade barrier mentioned in Article 3 of the present Rules on the basis of investigations. Article 18. In the process of investigations, the MOFTEC may, apart from using any of the materials submitted by the applicant and other interested parties on their own initiatives or upon request, collect any relevant information on its own initiative. Where it is required by investigation, the MOFTEC may form expert consultation groups consisting of the relevant departments of the state council, experts and scholars. The expert consultation groups are responsible for providing consultation services to the technical and legal issues involved in the process of investigations. Article 19. The MOFTEC may acquire information from the parties concerned by way of questionnaires, hearings, etc. and conduct investigations. Where it believes necessary, the MOFTEC may, upon the approval of the government of relevant countries (regions), send staff to the country (region) for investigations and collecting evidences. Article 20. The parties concerned may apply to the MOFTEC to treat the materials that they submit as confidential if they believe that the disclosure of the materials will bring about serious unfavorable impact. Where the MOFTEC believes that the confidentiality application is justified, it shall treat the materials submitted by the interested parties as confidential, and at the same time demand the interested parties to provide a brief non-confidential account of the materials. Where any material is regarded as confidential, it may not be disclosed unless the approval of the interested parties has been obtained. Article 21. The MOFTEC may, in the process of investigations, hold negotiations with the government of the relevant countries (regions) involved in the charged measures or practices. Article 22. The MOFTEC may decide to suspend investigations under any of the following circumstances: (1) The government of the country (region) that carries out the charged measures promises to cancel or readjust the measures concerned within a reasonable period of time; (2) The government of the country (region) that carries out the charged measures promises to provide appropriate compensations of trade to China during a reasonable period of time; (3) The government of the country (region) charged promises to perform the obligations provided in the trade treaties or agreements; or (4) Other circumstances under which the MOFTEC believes that the investigations may be suspended. Where the MOFTEC suspends the investigations, it shall publish an announcement and inform the interested parties without delay. Article 23. Where the government of the charged country (region) fails to fulfill its promises provided in Article 22, Items 1 through 3 of the present Rules within the reasonable period of time, the MOFTEC may resume its investigations. Where the MOFTEC decides to suspend its investigations according to the provisions of Item 4 of Article 22 of the present Rules, it may resume the investigations once the circumstance concerned disappears. Article 24. The investigation procedures may be terminated upon the request of the applicant unless the MOFTEC believes that terminating the investigations is not in conformity with the public interest. Article 25. Under any of the following circumstances, the MOFTEC shall terminate its investigations and issue an announcement: (1) The government of the foreign country (region) has canceled the charged measures; (2) The government of the foreign country (region) has provided appropriate compensations of trade to China; or (3) The government of the foreign country (region) has fulfilled its obligations provided in the trade treaties or agreements. Article 26. Under any of the following circumstances, the MOFTEC may terminate its investigations and issue an announcement: (1) The applicant fails to provide necessary cooperation in the process of investigations; or (2) Other circumstances under which the MOFTEC believes that the investigation of trade barriers may be terminated. Article 27. The MOFTEC shall, after investigations, decide whether the charged measures or practices have constituted any of the trade barriers mentioned in Article 3 of the present Rules. The conclusion of investigations shall be publicized and be informed to the interested parties. Article 28. The investigations of a trade barrier shall be completed within 6 months as of the day when the decision of accepting the case is publicized. This time limit may be extended under special circumstances for a term of no longer than 3 months. Article 29. If the charged measure or practice is believed to have constituted any of the barriers mentioned in Article 3 of the present Rules, the MOFTEC shall take the following measures according to the practical situation: (1) Holding bilateral negotiations; (2) Initiating the mechanism for the resolving multilateral disputes; (3) Taking other appropriate measures. CHAPTER V SUPPLEMENTARY PROVISIONS Article 30. Any announcement issued according to the provisions of the present Rules shall include content such as important situations, facts, reasons, grounds, results, conclusions, etc. Article 31. The investigation of the investment barriers effected by the government of any foreign country (region) shall be made by referring to the present Rules. Article 32. The power to interpret the present Rules shall remain with the MOFTEC. Article 33. The present Rules shall come into force as of November 1, 2002. |
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