The 25th China-U.S. Joint Commission on Commerce and Trade was successfully held in Chicago, the United States, on December 16-18, 2014. Consensus has been reached by China and the United States as follows:
Export Control: The ministries of commerce of both China and the United States held the Ninth Meeting of the High Technology and Strategic Trade Working Team between China and the United States in Shenzhen, China, on October 28, 2014. Both sides reviewed achievements obtained by the working team in recent years, had in-depth discussions on issues of common interest in detail and reached consensus on making efforts to promote and facilitate bilateral high technology and strategic trade for civil use. Both sides positively evaluated this conference of the working team and the seminar on China-U.S. high-tech trade convened on October 29.
The United States reiterated its commitment to promoting and facilitating commercial high-tech items for the Chinese civil final users and export of civil final use. Both reiterated their commitment to promoting bilateral high-tech trade cooperation in key civil fields.
In order to implement the China-U.S. High-Tech Trade Cooperation and Action Plan in Key Fields, the United States reiterated to actively check high-tech trade cases for civil use which may be affected by export control after receiving necessary and sufficient information. For example, China proposed deepwater oil-gas exploration equipment at the working team conference of high-tech and strategic trade and the United States gave its feedback in time. Both sides agreed to continue information exchange between governments and industries to implement the action plan and improve trade confidence.
As a part of the implementation of the action plan and in keeping with the current laws and regulations of the United States as previously mentioned, the United States agreed to give immediate assessment of applications filed by Chinese enterprises that conform to the conditions of final users after verification, implement the amendment to the control list carried out by multilateral export control mechanisms such as Wassennar Arrangement, promote and facilitate exports to most countries including Chinese civil final users and civil final use. Both sides agreed to continue to strengthen the visit cooperation of final users according to the agreements of the China-U.S. Exchange Letter of Final Users Visits. Both sides made further commitment to continuing to deeply discuss export control of common concern in detail by the China-U.S. High-Tech and Strategic Trade Working Team.
China has submitted several possible export permission descriptions in detail to the United States. The United States made assessment on these items and confirmed that some of the items cannot get the approval of exporting to China and other items can be taken into consideration of issuing export permission if they belong to final users and civil final use and the United States don’t have any concern of item transference according to the current policies of the United States.
With regard to the admission of medical equipment and drugs, both sides agreed to vigorously shorten the time to market of innovative drugs and medical equipment, which will be good for patients to get better treatment at an early time, and reached consensus as follows:
I. China will accelerate the study on promoting the reform of the examination and approval system of drugs and medical equipment, straighten out the mechanism and improve the examination and approval speed by increasing personnel and expenditure input to eliminate the overstock problem of drugs applications.
II. Applicants who apply for reducing and exempting clinical tests by taking international multicenter clinical data including Chinese data can get the green light of reducing and exempting clinical tests to avoid repeated tests if they meet related requirements after technical examination.
III. China will study formulating regulations to allow new overseas drugs that have not been put into use to be put on clinical tests in China while being tested in their own countries and submit the CPP in other countries and regions when applying for entering into market after completing clinical tests.
Both China and the United States agreed that those who refer to drafts of laws and regulations of drugs and medical equipment, that need to be reported according to the relevant regulations of the World Trade Organization, should provide at least 60-day comment period.
China carries out relevant management of clinical tests of medical equipment according to the Supervision and Administration Regulations of Medical Equipment and will further accelerate adjustment, expand products listed in the Catalogues that are free from clinical tests, extend the scale of medical equipment that are free from clinical tests in China, reduce the number of clinical tests of medical equipment and improve the efficiency of imported medical equipment entering into the Chinese market according to the practical requirements of supervision.
China and the United States agreed to continue to strengthen high-level dialogues between experts and relevant government departments of both sides in 2015 and promote the supervision and market access of drugs and medical equipment.
The expansion of transport aircraft’s airworthiness: the Civil Aviation Administration of China (CACC) and the U.S. Federal Aviation Administration will continue to cooperate closely and the U.S. Federal Aviation Administration will complete the “Shadow Review” on the CACC’s examination ability, assess the examination results, discuss with the CACC on how to expand the examination results to the bilateral airworthiness agreement of Sino-U.S. transport aircraft and further enhance cooperation in the airworthiness field on the basis of the CACC conducting ARJ21-aircraft-based airworthiness certification.
The strategic dialogue on agricultural innovation: in order to implement the consensus of “strengthening agricultural innovation based on science and technology, promoting food security and carrying out the dialogue on expanding the application of innovative agricultural technology in agriculture” reached by the heads of state of the two countries at the meeting in November 2014, both China and the United States agreed to launch a vice-ministerial-level agricultural innovative strategic dialogue every year led by the working team of agriculture under the mechanism of the China-U.S. Joint Commission on Commerce and Trade and with the participation of officials from the Chinese Ministry of Agriculture, the Chinese Ministry of Commerce and the U.S. Department of Agriculture, the U.S. Trade Representative Office and other relevant departments to create a favorable situation for agricultural industries in both countries to seek balanced development of agricultural cooperation and exchanges and win-win results. The agricultural working team will propose relevant working plans and topics and the first vice-ministerial-level meeting will be held earlier in 2015.
Chinese enterprises participating in PPP projects of infrastructure of the United States: China and the United States welcome both domestic and overseas investors to conduct commercial investment in infrastructure including PPP projects. Both China and the United States realized that their own enterprises play a positive role in the development of infrastructure in the two countries with big potential and made commitment to jointly discussing the opportunities of cooperation in this field.
Competition law: I. Based on the consensus reached by both sides at the Sixth Round of Sino-U.S. Strategic and Economic Dialogue, the goal of competition policies is to improve the benefits of consumers and economic efficiency, rather than promoting individual competitors or some industries. Law enforcement of anti-monopoly should be fair, transparent, objective and non-discriminatory. According to the above commitment, three law enforcement organizations of anti-monopoly of China will provide all parties that are investigated with information referring to these manners or competition for deals and provide related parties with effective opportunities of rendering defense evidence.
China clarifies that during the execution of Antitrust Law, all operators enjoy equal treatment.
China clarifies that when violations against Antitrust Law are found, law enforcement measures will be taken to eliminate the damage caused to competition instead of promoting individual competitors or some industries.
II. China clarifies that its law enforcement organizations of anti-monopoly will: 1. strictly abide by legal permissions, procedures and requirements of relevant Chinese laws and regulations in the process of adopting administrative actions; 2. inform disputing parties of facts, reasons and basis of administrative penalty that will be adopted and rights related parties should enjoy according to law before penalty decisions being made and provide related parties with right to state case facts and defend themselves.
III. China clarifies that the administrative decision that will put obligation on parties concerned under the Antitrust Law will be provided with a written version,,including facts, reasons and basis on which the decision is made. China clarifies that the administrative decision that will put obligation on parties concerned will be published with a final version in time according to the Antitrust Law. The administrative decision which is exposed to the outside world should not contain any content of legitimate business secrets.
IV. China affirms that under the requirements of a party concerned, law enforcement organizations of anti-monopoly will allow Chinese practicing lawyers to attend and participate in the meetings of three law enforcement organizations of anti-monopoly. China affirms that the following can sit in on the meetings of three law enforcement organizations of anti-monopoly after the application of the party cencerned and the approval of the law enforcement organizations of anti-monopoly (under normal circumstances, the above application can get the approval of the law enforcement organizations of anti-monopoly): 1. Those foreign law firms which have set up representative offices in China, are allowed to attend meetings and provide consultations on international law and practice and information on Chinese law environment and influence, but cannot be engaged in activities related to Chinese legal affairs. 2. Those foreign law counselors who practice in the other legal fields, and are allowed to attend the meetings as counselors and provide information involving deals, laws of his legal fields and international practice.
Visa: Both sides agreed to keep on negotiations on the reciprocal arrangements for various visas by such channels as negotiations between consuls of China and the United States to further facilitate bilateral personnel exchanges.
Technical localization: China and the United States promised to make sure to treat intellectual property rights obtained and developed both overseas and domestically equally without discrimination. Enterprises can make decisions to transfer technology and negotiate and decide if and when they can distribute and permit intellectual property rights to an affiliate or unaffiliated enterprise freely based on the consideration of business and market. China and the United States affirmed that governments have the right to take measures to encourage enterprises to research, develop, create and protect intellectual property rights.
“Special 301 report” and “infamy market” report: the United States affirmed its commitment that in the process of writing “special 301 report” and “infamy market” report, it will consider information provided by China and other countries objectively, fairly and kindly. In the “special 301” report and “infamy market” report, the United States affirmed its commitment to recognizing efforts and achievements made by foreign governments and entities including the Chinese government and entities in protecting intellectual property rights and law enforcement. In the process of implementing the commitments made in the “infamy market” report by the 2013 Joint Committee, the United States took practical measures to increase transparency in the deliberation process of “infamy market”. The United States will consider taking more measures to strengthen the transparency, objectivity and fairness in the process of publishing reports by suitable ways.
Geographical indication: Both China and the United States recognize the importance of protecting intellectual property rights and reached consensus as follows:
I. A name, or its paraphrase or word for word translation, cannot be protected as the geographical indication in the territorial limits if it is a common name in the territorial limits of one side.
II. The relationship between trademark and geographical indication should be dealt with according to the relevant clause of TRIPs.
III. There exist legal ways of the third party of shareholders opposing or cancelling registered or approved geographical indication based on the above reasons.
IV. If some part of the compound name of some geographical indication is a common name in the territorial limits of one side, the protection for this geographical indication won’t extend to the part of the common name. Relevant functional departments can protect the registered or approved compound geographical indication as a whole by making additional comments.
China and the United States will carry out dialogues on geographical indication.
The docking application of cargo flights of Chinese aviation corporations: China and the U.S. realized the importance of air service to both economies and promised to hold a new round of discussions on China-U.S. air service in the first half of 2015, covering a wide range of issues including the docking of cargo flights.
Relax restrictions on market access of finished locomotive import; the U.S. confirmed that the U.S. Railway Association promised to apply the certification requirements for the market access of importing locomotives to both domestic and import products in a fair and non-discrimination manner.
Government procurement: China confirmed that the draft of the interim procedures on government procurement of domestic goods will be made public for opinions after modification on the basis of considerations on reducing cost, relieving management burden and strengthening flexibility.
Framework agreement on Intellectual Property Cooperation: China and the U.S. reiterated their commitment to implementing the China-U.S.
Intellectual Property Cooperation Framework Agreement. The governments pay high attention to this work, and will provide necessary support and sufficient sources to the bilateral cooperation under the framework agreement. For all the projects included in the framework agreement, China’s Ministry of Commerce, cooperating with other Chinese departments on intellectual property protection, and the U.S. Patent and Trademark Office, the U.S. Trade and Development Agency, the Office of the United States Trade Representative, cooperating with other intellectual property institutions, committed to cooperating closely to ensure the success of every project. At present, we have seen great success in their cooperation. for example, according to the understanding memorandum signed by the U.S. Trade and Development Agency and the Chinese Ministry of Commerce in 2013, the U.S. Trade and Development Agency funded the exchange activities in the U.S. on legislation, rules and judicial interpretation of intellectual property organized by the U.S. Patent and Trademark Office. The U.S. Patent and Trademark Office and the Chinese State Administration for Industry and Commerce and the Chinese General Administration of Quality Supervision, Inspection and Quarantine held two seminars in China on geographical indication protection and trade mark revocation and its objection procedures. The two parties made efforts to carry out more technological support and exchanges on intellectual property, including two seminars in the U.S. sponsored by the U.S. Trade and Development Agency and the U.S. Patent and Trademark Office and seminars in China, as well as meetings related with copyright sponsored by the U.S. Patent and Trademark Office and the Chinese Copyright Office which will be held in 2015. The Chinese Ministry of Commerce and the U.S. Trade and Development Agency agreed to adjust the fund used by the Trade and Development Agency to hold seminars stipulated by the Memorandum in 2013, in order to fund the exchanges in the U.S. under the framework agreement. After the completion of the set projects and budget, the two parties will evaluate the completed projects and discuss how to participate in extra projects under the framework agreement, and will make efforts to sign a new or revise the original memorandum between the U.S. Trade and Development Agency and the Chinese Ministry of Commerce.
Legal service: China promised to hold discussions in due course in 2015, to introduce the liberalization and opening progress of China’s legal service, and ask for the opinions and suggestions of the foreign business circle. China’s related departments are formulating implementing methods for the pilot work of exploring mechanisms and methods in the Shanghai Pilot Free Trade Zone to make close the cooperation between Chinese and foreign law offices, as well as those in Hong Kong, Macao and Taiwan. The two parties could continue exchanges on this issue.
The U.S. welcomes investment from China, including investment in legal service. In the U.S., legal services are mainly monitored by the state governments, and the role of the federal government in the liberalization of legal service is limited. All qualified legal service providers, regardless of their nationalities, could compete in the same conditions. The commitment by the U.S. in the WTO on legal services shows that no states have adopted nationality discrimination against any law offices as long as the lawyers they employ are entitled to practice in the states. In addition, no states apply national discrimination against applicants who apply for lawyer qualification, and the applicants could acquire the qualification in other states in the same conditions. Finally, 32 U.S. states and the District of Columbia represent the major legal service market of the U.S., and their stipulations on foreign legal consulting allow Chinese lawyers to provide consultations on Chinese law to American clients, without a complete lawyer’s license in the U.S..
China-U.S. dialogue on cooperation in trade in service: China and the U.S. will make efforts to expand cooperation in trade in service. The U.S. Department of Commerce and other interested parties, together with Chinese Ministry of Commerce, will hold a cooperative dialogue at the director level at the beginning of next year. As part of the dialogue, the two parties will have discussions on promoting bilateral trade in service.
Expanding China-U.S. cooperation in climate and clean energy: to implement the ambitious climate goals announced by President Barack Obama and President Xi Jinping in Beijing in November 2014, U.S. Secretary of Commerce Penny Pritzker and Secretary of Energy Ernest Moniz, cooperating with the Chinese Ministry of Commerce and the Chinese National Energy Bureau, will lead a commercial development delegation —“Smart City, Smart Development” to China on April 12-17, 2015. The key of the visit will be green infrastructure, energy efficiency, green building, carbon capture, utilization and sealing up, as well as related industries of environment. The visit will highlight the benefits of sustainable urbanization technology to support China realizing the goals of air quality and climate.
Legitimate sales: China and the U.S. reiterated to create a better environment for promoting sales (legitimate sales) of intellectual property intensive products and services. The two parties agreed to conduct study and information exchange on how to reach the goal. The fields of the study and communication will include: index to measure the level of legitimate sales; information on how to analyze the effect of intellectual property to the countries’ economy; share the import and export data of intellectual property intensive products if such data exist; information on law enforcement, law and management reform on intellectual property ; and information on civil compensation. The annual report of the Intellectual Property Panel of the JCCT will reflect the discussions.
Commercial secret protection in administrative procedures: China and the U.S. confirmed to protect commercial secrets provided to the government in administration or supervision procedures, not to publicize them improperly and only reveal them to governmental officials responsible. The two parties will further study how to optimize related administration and supervision procedures under the legal system, including optimizing secret protection measures, limiting the range of governmental contact persons, requiring enterprises’ information to be necessary information to realize supervision goals, and the requirements to reveal information to the government should be allowed not to reveal commercial secrets. The government personnel that reveal commercial secrets illegally will be made to take administrative or legal responsibilities according to law. China and the U.S. agreed to exchange information on commercial secret protection under their own legal systems. China is expected to conduct a survey on formulating laws on commercial secrets. The U.S. said that, a legislation draft on stealing commercial secrets to be federal civil cases had been submitted to the Congress.
Deepening and strengthening China-U.S. criminal enforcement cooperation on intellectual property: On the basis of the achievements of the 24th JCCT, China and the U.S. promised to deepen criminal enforcement cooperation in intellectual property under the framework of the liaison group of China-U.S. law enforcement, including increasing investigation quantity, strengthening information share and cooperation on cross-border criminal enforcement, and implementing joint enforcement targeting at major cases.
Safety check of food and drugs: To strengthen bilateral cooperation in food and drug safety, the Chinese General Administration of Quality Supervision , Inspection and Quarantine and the U.S. Food and Drug Administration signed the Implementing Arrangement on the Cooperation Mechanism of Food Safety Inspectors, and the Chinese Food and Drug Administration signed the Implementing Arrangement on the Cooperation Mechanism on the Inspectors with the U.S. Food and Drug Administration in November 2014.
China-U.S. legal exchanges: The Chinese Ministry of Commerce, the Legislative Affairs Office of the State Council and the U.S. Department of Commerce agreed to hold China-U.S. legal exchanges in Beijing and Wuhan in January, 2015. U.S. government representatives will brief the Chinese industry, and legal and academic circles on the latest progress of the U.S. legal system on air pollution prevention and E-commerce at that time. It’s also agreed that the next round of legal exchanges will be held in the U.S., and that both sides join hands immediately in deciding what to discuss and where to meet exactly.
Administrative laws: To further deepen mutual understanding of both sides on administrative license procedures and its influence, the two sides carried out fruitful exchanges in Washington in May 2014. They will continue to conduct exchanges in Spring of 2015, and extend the topics from administrative license to other administrative law and procedure issues including business secret protection of administrative procedures and liabilities of policy decision and other topics determined by both sides.
Maliciously registration of trademarks: The two sides agreed to attach great importance to the problem of malicious registration of trademarks, and increase exchanges and communication by established bilateral and multilateral channels.
Strengthening IPR judicial exchanges: The two sides will push forward exchanges and cooperation concerning judicial issues by bilateral mechanisms like the intellectual property work group.
Technology license: The two sides will keep on having exchanges and dialogues on issues concerning license contract for technology import and export.
Combating IPR infringement online: Both China and the U.S. will render greater support to combating IPR infringement and counterfeiting on the Internet, and prevent such behaviors by criminal, civil and administrative penalty. On the basis of the Work Plan on Combating IPR Infringement and Counterfeiting on the Internet released by the Combating IPR Infringement and Counterfeiting Office on June 18, 2014, the Chinese side agreed to list products of great influence on public health and safety as key products and carry out intensive investigation in line with the practice at a proper time. The two sides will continue to carry out cooperation in combating counterfeiting and the cross-border law-enforcement of pirated commodities, and have exchanges on the results.
Statistics working group: The statistics working group of the China-U.S. JCCT signed the Work Plan on the Statistical Analysis of China-U.S. Trade in the Future. It’s the first time that the working group has incorporated trade in services into its work plan. The two sides conduct efficient cooperation through the statistics group under the JCCT, have in-depth talks on statistical work and enhance mutual understanding of the official statistics by both sides. It will help both sides better understand bilateral economic connections and know bilateral trade data.
Patent protection and malicious prosecution: Both China and the U.S. undertake to promote the development of a vigorous IPR system so as to encourage the future innovation and economic growth for both sides. The two sides will strengthen cooperation, prevent innovators from malicious prosecution, and hold IPR license seminars jointly so as to create a sound environment for innovative development.
Data supplement: On supplementing and submitting data ,China and the U.S. have maintained effective and extensive talks after the 24th China-U.S. JCCT held in 2013. The Chinese side has made improvement along with practice in line with Chinese laws and regulations. It’s confirmed by both sides that continuous exchanges and case communication are mutually beneficial.
Inventor reward: China and the U.S. are committed to safeguarding inventors’ legitimate rights on innovative fruits according to their separate domestic laws, and agree to respect companies’ award and reward to inventors on the basis of their own regulations and contracts signed with inventors.
Other fruits:
According to consensus reached by Chinese Vice Premier Wang Yang, U.S. Secretary of Commerce Penny Pritzker and U.S. Trade Representative Mike Froman on improving the JCCT mechanism, the 25th China-U.S. JCCT incorporated a series of cooperative activities supported by the governments and industry circles of both countries:
Forum on China-U.S. Business Relations
Forum on China-U.S. Tourism Cooperation
Roundtable Meeting on Bilateral Investment
Forum on China-U.S. Agriculture and Food Safety
Luncheon on China-U.S. Urban Trade and Economic Cooperation
The Chinese side also announced to have special consular officers based in the Economic and Commercial Section of the Consulate General of the People’s Republic of China in Chicago to help with bilateral cooperation between Chinese and U.S. small and medium-sized enterprises. Eight Chinese cities will jointly build a service mechanism for small and medium-sized enterprises with Chicago.
