ABSTRACT

In December 2009, the World Trade Organization (WTO) Appellate Body circulated its report in the landmark case, China – Publications and Audiovisual Products . 1 This was the fi rst WTO case involving trade in cultural products with regards to China, and may have serious implications for both the development of WTO law and Chinese media regulation. The case dealt with China’s market access regime for a range of cultural products, including cinematic fi lms, audiovisual products, and publications. In a number of areas, the Appellate Body found that China violated WTO law by prohibiting foreign investment in certain sectors; introducing State discretion into licensing processes, where China had committed to granting trading rights in a non-discretionary manner; limiting foreign participation in media enterprises; and treating domestic and foreign enterprises differently in regards to sector access. 2

This case has provoked its fair share of controversy. Some have criticized the Appellate Body for failing to interpret the trading rights provisions in their systemic context, in the light of their object and purpose, and hence to contribute to the expansion of the WTO’s trade liberalization doctrine. 3 Such critics condemn the decision for having taken little regard

* This chapter is part of the results of the Research Project on “ Current Trends of Chinese Law towards NonTrade Concerns such as Sustainable Development and the Protection of Environment, Public Health, Food Safety, Cultural, Social and Economic Rights, Labor Rights and the Reduction of Poverty from the Perspective of International Law and WTO Law ”, coordinated by Professor Paolo Davide Farah at gLAWcal – Global Law Initiatives for Sustainable Development (United Kingdom) and at West Virginia University John D. Rockefeller IV School of Policy and Politics, Department of Public Administration, in partnership with the Center of Advanced Studies on Contemporary China (CASCC) in Turin (Italy), Maastricht University Faculty of Law, Department of International and European Law and IGIR – Institute for Globalisation and International Regulation (Netherlands), and Tsinghua University, School of Law, Institute of Public International Law and the Center for Research on Intellectual Property Law in Beijing (China). An early draft of this chapter was presented at the Conferences Series on “ China’s Infl uence on Non-Trade Concerns in International Economic Law ”, Third Conference held at Maastricht University, Faculty of Law on January 19-20, 2012. This publication and the Conference Series were sponsored by China-EU School of Law (CESL) at the China University of Political Science and Law (CUPL). The activities of CESL at CUPL are supported by the European Union and the People’s Republic of China.