Over at vox, trade lawyer Bernard O'Connor argues that the end of China's NME status might be further off than many people think:
There is nothing in the WTO rules, or elsewhere, to provide that China automatically gets market-economy status in 2016. The idea that it will is a misunderstanding shared by many in China, the EU and the US.
Chinese premier Wen Jiabao, speaking at the September 2011 World Economic Forum at Dalian mentioned the “2016 deadline” when he asked, once again, the EU to grant China market-economy status. The supposed deadline is repeated by most Chinese trade and commerce officials. Last month, Business Europe, the European confederation of industries, stated with concern in a report on ‘Rising to the China Challenge’ that China will automatically be granted market-economy status in 2016. The participants in the China-US Strategic and Economic Dialogue seem to accept that there is a deadline as does one of the leading EU books on trade law (Van Bael and Bellis 2011). Every one seems to agree.
But despite all these affirmations, there is no deadline. There is no provision setting any date in the WTO agreements themselves and there is no deadline in the protocol signed by China when it acceded to the WTO. The idea that there is a deadline is an urban myth that seems to have gone global. It has gone viral even in a world were the underlying agreements are freely available to all on the Internet.
...
There is one provision of the Chinese WTO Accession Protocol dealing with dumping. This is Article 15. It addresses techniques in the comparison of costs and prices in antidumping procedures. There is nothing providing that market-economy status can be automatic.
The 2016 myth seems to have been born in paragraph (d) of Article 15. This paragraph provides that China must establish whether it is a market economy according to the law of the importing WTO member. If it can establish that it is a market economy then some of the transitional provisions on comparison methodologies will terminate. However, there are no dates in relation to China establishing that it is a market economy.
The paragraph further provides that one specific comparison methodology set out in one subparagraph of the Article will expire, in any event, fifteen years after Chinese accession. China became a WTO member in Doha in December 2001. Add fifteen years and you get 2016.
This provision does not say that China will get market-economy status. It just says that a very specific provision of Article 15 will cease to apply. The other parts of Article 15 continue to apply. And to interpret the expiry of one subparagraph as a deadline for the granting of market-economy status is not only to read into the Article something that is not there, but it is also to negate all the other provisions, something that international treaty interpretation simply does not allow. The expiry of one subparagraph does not change the rest of the law.
...
On the basis of analysis carried out in the US and in the EU it is unlikely that China would be considered a market economy according to the normal standards applicable in EU law. And Article 15 of the China WTO accession protocol requires that the evaluation be carried out on the basis of the law of the importing WTO member.
If China wants to be treated as a market economy it has to prove to the EU that it is one by satisfying the five criteria. The granting of market-economy status to China is not automatic now or in 2016 or afterwards.
If you want to see the specific language, the accession protocol is here: http://www.worldtradelaw.net/misc/ChinaAccessionProtocol.pdf
