MINISTRY OF COMMERCE, PRC

Friday, March 25,2005

Chapter I General Principles

Article 1 For the purposes of developing and regulating the investigation on foreign trade barrier, eliminating the influences of foreign trade barrier on our country’s trade to foreign countries, promoting normal development of foreign trade, these rules are formulated in accordance with Foreign Trade Law of the
People’s Republic of China.

Article 2 Ministry of Commerce is responsible for the investigation on foreign trade barrier.
Ministry of Commerce designates Fair Trade Bureau of Import and Export to be responsible for the implementation of these rules.

Article 3 The measures or activities made or supported by the government of foreign countries (regions) are regarded as trade barrier in case of one of following circumstances:
1. Violate the economic treaty or agreement that the country (region) concluded or participated together with our country, or fails to implement the obligations stipulated by economic trade treaty or agreement that the country (region) concluded or participated together with our country;
2. Create one of following unfavorable influences: Cause or may cause hamper or restriction of the products or service of our country to entry the market of the country (region) or the third country (region);
Cause or may cause injury to the competitiveness of the products or service of our country in the market of the country (region) or the third country (region);
Cause or may cause hamper or restriction of the export of the products or service of the country (region) or the third country (region) to our country.

Article 4 Ministry of Commerce may place the case on file for trade
barrier investigation at the request of the applicant.
Ministry of Commerce may place the case on file for trade barriers investigation on its free will as it deems necessary.

Chapter II Investigation Application

Article 5 Domestic enterprises and industries or natural persons, legal persons on behalf of domestic enterprises and industries or other organizations (hereinafter referred to as “the applicants”) may make an application for trade barrier investigation to Ministry of Commerce.
Domestic enterprises and industries in terms of above paragraph mean the enterprises or industries that have a direct bearing with the products or service under trade barrier investigation.

Article 6 The application for trade barrier investigation must be submitted in the form of writing.

Article 7 The application letter should include following information:
1. Name, address and related information of the applicant;
2. The explanation of measures or ways applied for investigation;
3. The explanation of the products or service that the measures or ways applied for investigation aim at;
4. General explanation of relevant domestic industries;
5. The explanation of unfavorable influences if the measures or ways applied for investigation have caused unfavorable influences;
6. Other content the applicant deems it necessary to explain.

Chapter III Examination and Put a Case on File

Article 8 The application letter should attach following evident materials and explain the source:
1. The evident materials that prove the existence of the measures or ways applied for investigation;
2. The evident materials that prove the unfavorable influence caused by the measures or ways applied for investigation;
Any applicant who could not submit above materials should explain the reason by writing.

Article 9 The applicant may recall the application before Ministry of Commerce makes the decision of the investigation.

Article 10 Ministry of Commerce should examine the application materials and makes the decision on starting an investigation or not within 60 days at the receipt of the application letter and relevant evident materials.

Article 11 Ministry of Commerce may request the applicant to provide supplementary materials within a set time limit during the examination of the application materials.

Article 12 Ministry of Commerce should decide to start an investigation and publish it by announcement if the application materials submitted by the applicant accord with the provisions of Article 6 and 7 of these rules and are not the circumstances in terms of Article 16, Section 1, 3 and 4.
To the cases that Ministry of Commerce decides to put on a file should also be published by announcement.

Article 13 The announcement for investigation should make clear the measures or ways under investigation, the products or service relating to the measures and ways under investigation, and the country (region) where the measures and ways are under investigation (hereinafter referred to as “the country (region) under
investigation”), introduce briefly the available information and make clear the time limit that the interested parties set out their views and the public make comments.

Article 14 Ministry of Commerce should inform the applicant, known export and import managers, the government of the country (region) under investigation and other interested parties after the publication of the announcement for the investigation.

Article 15 The publication day of the announcement is the date that the investigation starts.

Article 16 Ministry of Commerce may make a decision not to start an investigation in case of one of following circumstances:
1. The description in terms of the application materials submitted by the applicant do not accord with the facts;
2. The application materials submitted by the applicants are not complete and the applicant does not provide supplementary materials within the time limit set by Ministry of Commerce.
3. The measures or ways applied for investigation by the applicant are obviously not subjected to trade barrier in terms of Article 3 of these Rules;
4. Other circumstances that Ministry of Commerce deems unnecessary to start an investigation on.

Article 17 Ministry of Commerce should inform the applicant by writing and make clear the reason why it does not start an investigation.

Chapter IV Investigation and Confirmation

Article 18 Ministry of Commerce should confirm by investigation whether the measures or ways under investigation has constituted trade barrier in terms of Article 3 of these Rules.

Article 19 Ministry of Commerce may use any information collected initiatively during the investigation.

Article 20 Ministry of Commerce may establish expert consultation group constituted by relevant departments, experts and scholars of State Council when it deems necessary. The expert consultation group is responsible for providing comments on technical and lawful issues relating to the investigation.

Article 21 Ministry of Commerce may seize up the situation and make the investigation by questionnaires, hearings and other ways.

Article 22 Ministry of Commerce may send staffs to the country (region) to make investigations and gather evidence with the agreement of the government of the country (region) under investigation when it deems necessary.

Article 23 The interested parties may apply to Ministry of Commerce for dealing with their materials as classified ones if they think it will cause harmful influence in case of the disclosing of the materials they submitted.

Article 24 If Ministry of Commerce thinks the application for keeping secrete is proper, it should treat the materials provided by the interested parties as classified ones and ask the interested parties for an un-classified summary of the materials.
Without the agreement of the interested parties who provide the materials, Ministry of Commerce should not use the materials treated as confidential ones beyond the use of trade barrier investigation.

Article 25 During the investigation, Ministry of Commerce may make consultations with the country (region) under investigation about the measures and ways under investigation.

Article 26 Ministry of Commerce May decide to terminate the investigation and publish it by announcement in case of one of following circumstances:
1. The government of the country (region) under investigation promises to cancel or readjust the measures or ways within proper time limit;
2. The government of the country (region) under investigation promises to provide our country with proper trade compensation within proper time limit;
3. The government of the country (region) promises to perform the obligations of economic trade treaty or agreement;
4. Other circumstances that Ministry of Commerce thinks the investigation may be ended.

Article 27 If the government of the country (region) under investigation does not perform the promises in Article 26, Section 1 to 3 of these rules, Ministry of Commerce may resume its investigation. As for the investigation that Ministry of Commerce decided to end in accordance with Article 26, Section 4 of these
Rules, the investigation may be resumed after the elimination of the circumstances..

Article 28 Ministry of Commerce may terminate the procedure of the investigation except that it deems the termination of the investigation procedure does not accord with public interests.

Article 29 Ministry of Commerce should terminate the investigation and publish it by announcement in case of one of following circumstances:
1. The government of the country (region) has canceled or readjusted the measures or ways under investigation;
2. The government of the country (region) has provided our country with proper trade compensation;
3. The government of the country (region) has performed the obligations of economic trade treaty or agreement;

Article 30 Ministry of Commerce may terminate the investigation and make an announcement in case of one of following circumstances:
1. The applicant does not provide proper cooperation during investigation;
2. Other circumstances that Ministry of Commerce thinks the investigation may be terminated.

Article 31 Ministry of Commerce should make a decision and announcement on whether the measures or ways constitute the trade barrier in terms of Article 3 of these Rules.

Article 32 Trade barrier investigation should be finished within 6 months as of the day of announcement for the investigation. It may be prolonged in case of special circumstances, but it should not exceed 3 months.

Article 33 If the measures or ways under investigation are confirmed to constitute trade barrier in terms of Article 3 of these Rules, Ministry of Commerce should take following measures according to the
circumstances:
1. Hold bilateral consultations;
2. Start settlement mechanism of multilateral dispute;
3. Take other proper measures.

Chapter 5 supplementary Articles

Bright Jon,  Attorney-at-law   Fax: +86-51253516040   email@colaw.cn