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Ru Ding
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Dear Marc, Thanks for replying me promptly. You are a respected scholar and I have benefited from reading your works. I am with you on the point that we need a standard that avoids indeterminacy and provides the legal predictability to the WTO rules on subsidy. I believe the jurisprudence on the “public body” issue now has essentially left a broad discretionary space for the domestic investigation authorities, which might lead to unbounded use of countervailing duties through using the concept of “public body”. The rules need to be further clarified, or even better be negotiated among the Members. I agree with Steve Charnovitz that it seems there is rather a “judicial inactivism” or hesitation to make the standards too determinant due to the issue’s complexity. My view is that such inactivism has a good reason. This does not mean I believe the rules should be kept in this way. The next step is to figure out what better rules on non-governmental but government-related commercial entities should be. I also look forward to further communicate with you. Ru
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Dear Marc, It is an important issue and thanks for starting a conversation on this topic. I have two comments and would like to know your opinion or responses. I agree with you that the panels/Appellate Body (through decisions in DS379, DS436, DS437 and DS437(Art. 21.5), DS523) has created a seemingly “complex and unworkable” body of jurisprudence regarding “public body”. However, as I went through some of empirical evidence of Chinese state-invested enterprises, the US government corporations and the state-invested enterprises or designated/regulated commercial entities throughout the Europe (especially Norway, Germany or France), I realized it is not the fault of the panel/AB. The realities on the ground are complicated and diverse, which requires a sophisticated, case-by-case and nuanced approach instead of a simple and blunt approach. I wonder if you have considered this aspect of the issue. Also, I found that your description of the “governmental control approach” section has almost the same expression and wordings with my article ‘Public Body’ or Not: Chinese State-Owned Enterprise, published by the Journal of World Trade in 2014. Please refer to page 173 of the article. I understand this is only a blog article and the academic standard do not necessarily apply strictly here. However, I wonder if it would be more appropriate for you to at least cite the article or change the wordings and expressions in the post. Many thanks. I am also interested in this topic and my doctoral thesis is on the issue of “public body” (published at the Georgetown University Law Center last year). I would love to communicate and discuss further with you on this issue. The best approach on the “public body” issue, in my opinion, is an activity-based approach taking into consideration of the diverse institutional settings of a particular economy. Ru
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May 29, 2019