The Evolution of Japan's Aggressive Legalism

Abstract

Japan's recent trade policy is sometimes characterised as ‘aggressive legalism’ in the sense that it aggressively utilises the multilateral trade rules embodied in the Marrakesh Agreement Establishing the World Trade Organisation in dealing with disputes with its trade partners. This policy may appear to be a marked departure from Japan's past practice of favouring bilateral, non‐legal settlement of trade disputes. Upon closer examination, however, while Japan has been moderately active in using the WTO dispute settlement process for resolving its trade disputes, it behaves more like a country that resorts to surgical strikes on selected targets (usually the United States) under a powerful cover of the European Community. Compared to Japan, Korea's attitude in the WTO is more aggressive. While the Japanese Ministry of Economy, Trade and Industry (METI) is not content with the status quo and is seeking to expand its aggressiveness in the WTO dispute settlement mechanism, it faces an uphill battle. One of the difficulties facing trade officials in Japan may be the lack of a national system for lodging WTO complaints, open to any citizens or firms, like Section 301 of the US Trade Act of 1974 or the European Trade Barriers Regulation. Nonetheless, in the historical context, Japan is far more aggressive than in the past in utilising the rules of the GATT/WTO to advance its national interests. It will never revert to the infamous practice of bilateralism and grey area measures.

North–South development competition and the quality and sustainability of Chinese and Japanese trans‐national infrastructure initiatives

“…As early as in the GATT regime, countries from the Global South were considered the ‘rule takers’ of the international economic law set by those in the Global North, and called for more flexible alternatives in ‘rule‐making and implementation’ (Footer, 2010, p. 243). Moreover, Japanese approach to trade policy has been characterised as ‘aggressive legalism’ for rule‐based dispute resolution with trade partners (Araki, 2006, p. 783). Instead of claiming to distinguish the difference in the attitudes and perception on the ‘rule of law’ as Asian ‘culturally’ shaped outcome, rather, its status as a member of the ‘rule‐setting’ Global North determines the position of whether it prefers to enforce hard laws or shift towards soft laws.…”

Bureaucratic politics, policy learning, and changes of antidumping policy and rules in Japan

“…Conversely, as Japan's unprecedented trade surplus made it a frequent target of antidumping petitions by importing countries, the Japanese Government was in a position to demand stricter antidumping rules internationally, in order to restrain relentless use or abuse of the law by trading partners. The third reason is that until the late 1980s, whenever facing unavoidable trade conflicts, the Japanese Government, (more specifically METI) consistently preferred the bilateral channels of negotiations and compromises to multilateral, rule‐based solutions such as antidumping measures (Pekkanen, 2002; Araki, 2006).…”

“…With this policy change METI has used the WTO procedures to proactively challenge US unilateralism (Iida, 2006). The Japan‐US automobile dispute in the summer of 1995 symbolized the new policy direction by Japan, and the winning the Section 301 (Automobile) case elevated aggressive legalism as a highly preferred policy tool to cope with the bilateral trade problems not only between Japan and the USA but also with others (Araki, 2006).…”

Neither Reluctant nor Aggressive Legalism: East Asian Countries under the World Trade Organization Dispute Settlement Mechanism

“…They find the cause of this change in such social/cultural factors as overall changes in the legal culture in EACs or the accumulation of legal experience and resources (international socialization thesis). Aggressive legalism, the most widely known Trade-dominant industry thesis: interest-based explanation (Pekkanen 2008(Pekkanen , 2010Gao 2010Gao , 2011Yoshimatsu, 2007) Trade surplus/deficit or trade penetration to partner market (Yamane, 1998) (Peng, 2000;Zhang, 2006) International socialization perspective: socialization of legal norms (Harpaz, 2010) Lack of legal capacity/experience argument (Araki, 2004;Iida, 2006;Liyu and Gao, 2010) (Why EACs are getting more aggressive) (Why EACs are not aggressive) EACs, East Asian countries.…”