The Separate Customs Territory of the Hong Kong SAR and the WTO
Asian Academy of International Law
The Hong Kong Chinese Enterprises Association Legal Affairs Steering Committee
Mr Adrian LAI
Deputy Secretary General, Asian Academy of International Law
Mr Lai is a practising barrister in Hong Kong; he is also a Certified Public Accountant of Hong Kong and holds the specialist qualification in insolvency matters. He maintains a predominantly civil practice and has been engaged as Counsel on matters relating to arbitration, banking, commercial, company, construction, professional accountants/auditors’ negligence, and professional disciplinary proceedings.
Dr Anthony Francis NEOH QC SC JP
Chairman, Asian Academy of International Law
Dr Neoh is a senior member of the Hong Kong Bar specialising in international litigation, arbitration and financial regulatory matters. From 1991 to 1994, he was a member of the Hong Kong Stock Exchange Council and its Listing Committee, and chaired its Disciplinary Committee and Debt Securities Group, and was Co-Chairman of the Legal Committee of the Hong Kong and China Listing Working Group. From 1999 to 2004, he was Chief Advisor of the China Securities Regulatory Commission, at the personal invitation of former Premier Zhu Rongji.
Professor LIM Chin Leng
Choh-Ming Li Professor of Law, The Chinese University of Hong Kong
Professor Lim is of Keating Chambers, London. He has advised and represented governments and private clients in complex public and private international law matters and disputes. He is also a Visiting Professor at King’s College, London, Honorary Senior Fellow of the British Institute of International & Comparative Law, and served on an advisory committee of the Trade and Industry Department of the Hong Kong SAR.
Mr Stuart HARBINSON
Senior Consultant on International Trade
Hume Brophy, Switzerland
Mr Harbinson was Chief of Staff and subsequently Special Adviser to two Directors-General of the World Trade Organization (WTO). Prior to that, during a distinguished career in the Hong Kong public service, he represented the Hong Kong SAR in the WTO between 1994 and 2002. He has chaired high level WTO bodies, including the Dispute Settlement Body and the General Council, as well as a number of dispute settlement panels.
Other than a contracting territory of the General Agreement on Tariffs and Trade (GATT) and a founding member of the World Trade Organization (WTO), Hong Kong is famed for being one of the leading financial and trading centres of the world. However, the recent new rule of the United States (US) on the origin marking of Hong Kong products is widely considered as an attempt to challenge the status of the Hong Kong SAR (HKSAR) as a separate customs territory and a member of the WTO, which is guaranteed under the Marrakesh Agreement Establishing the World Trade Organization and the Basic Law of the HKSAR.
This webinar, organised by the Asian Academy of International Law with the support of the Legal Affairs Steering Committee of the Hong Kong Chinese Enterprises Association, aimed to deliberate on various pertinent issues involved. In addition to a panel of distinguished speakers joining the webinar from Hong Kong and Switzerland, almost 200 registrants across the globe have signed up for it.
The webinar was started off by Mr Adrian Lai, the moderator, to set the scene by briefly recapping the US President’s Executive Order on Hong Kong Normalisation as well as the subsequent origin marking measure on imported goods from Hong Kong. Mr Lai also outlined the strong objection of the Hong Kong government and the actions taken such as its intention to formally invoking the WTO dispute resolution mechanism against the US government.
Dr Anthony Francis Neoh then offered a retrospective and detailed review of the history of the GATT and WTO. He highlighted the fact that Hong Kong has joined the GATT as early as 1986 as a separate customs territory, not only becoming a contracting party of the WTO later on, but more importantly playing a very active role in the GATT and WTO trade rounds that shaped the formation of the WTO. Also, Dr Neoh talked about the reduction of tariffs as a contribution of GATT and WTO, the exports and imports in the global market, Hong Kong’s external merchandise trade with a substantial percentage of re-exports, and Hong Kong’s exports of commodities and services.
Against this background, Professor Chin Leng Lim continued to deal with some of the misunderstandings, myths, and misrepresentations related to the origin marking issue. He argued that (1) Hong Kong is discriminated against since all other WTO members are allowed to mark exported goods as their own; (2) the clause governing Hong Kong’s status is found in the Marrakesh Agreement rather than the GATT, underlining its status as a founding WTO Member; (3) the US measures are intended to affect marking only and are deliberately designed not to impose additional or changed duties on Hong Kong goods, although this does not make them lawful; (4) importantly, bringing a case even in consultation with Beijing will not diminish Hong Kong’s autonomy as it will not change Hong Kong’s status as a separate customs territory, either under the Basic Law or under WTO law; and (5) Hong Kong not only has a decision to make about bringing a case to WTO dispute settlement, it may have no choice but to defend Hong Kong’s right to be treated separately as a customs territory.
Finally, Mr Stuart Harbinson, joining the webinar from Switzerland, began his presentation with an overview of the trade relations between Hong Kong and the US, noting that in general Hong Kong is a major positive force in the liberalisation of trade as well as one of the biggest markets for the US. With regard to Hong Kong’s participation in the WTO, he stressed that there is no difference whatsoever between a sovereign State and a separate customs territory in terms of their obligations, rights and status in the WTO. As the ninth biggest budget contributor of the WTO, Mr Harbinson emphasised that Hong Kong enjoys full membership with the autonomy to develop its own trade policies and establish relationships with other WTO members.
• Very informative with different views expressed by experts.
• The contents are very informative, of a high quality and meet my expectations.
• A complete picture of the issues – from background to what might happen.
• Explanations were very clear and I had the chance to understand the background concerning this issue.
• It helps me better understand Hong Kong’s role in the GATT and WTO and why this issue is worth discussing and contemplating.
WTO and Hong Kong
Dr Anthony NEOH QC SC JP
With Chinese Interpretation