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Choice of Forum in the Possible GoogleCN Dispute

As I have discussed in a previous entry, if Google’s ICP license is conditioned to provide filtered web search results, Google may not provide search engine service via Google.cn anymore. Google.cn may become a hub of Google’s services designed specifically for China’s market. Until today, the renewal of the ICP license for Google.cn is still pending, and the webpage located at Google.cn is still a simple link to Google.com.hk. In this post, I’d rather to discuss a more lawyering thing: is there any difference between shutting down Google.CN and blocking Google.COM.HK?

Yes, they are different.

If a service provided by Google China, a Chinese company, were shut down by the government, the forum of questioning such shutting down should be Chinese judicial or administrative dispute resolutions. The game players thus are Google China and specific government agency who makes the decision. If Chinese law do request ISPs filterring the search result,  then Google would hardly be a winner of the that kind of dispute (even regardless the “political influences” to the cases).

If an online service provided by Google Inc. (a corporation in California), or Google.com.hk (operated by a company registered in Hong Kong) were denied to be accessed by China’s government, a new forum could be chosen by Google – WTO.

Yes, a complaint at WTO’s DSB should be filed by a government. But the industry would always be an initiative force of the international trade disputes. Furthermore, because Chinese court has not been empowered to review the legality of administrative regulations, reviewing them through an international institution can at leaste be one of the choices of challeging those regulations.

Now the question is: whether China is burdened to open search engine market to foreign companies?

China has made its sectoral commitments  on providing market access for some “telecommunications services”. Specifically, China committed to open the market for “data/online processing services”, which is the class 843 of the UN Central Product Classfication (CPC). But China did not promise to open market for “database services”, which is CPC 844.

In the 2009 version of the CPC, the “web search portal content” has been included in CPC 843. Although China’s commitments was made based on the CPC in 2001, some WTO cases (shrimp-turtle case, and Gambling case) has supported an evolutionary approach or a dynamic approach. Both of them would be good for including search engine service in China’s commitments.

The next question is: whether China’s activities constitute a violation of its commitments? That would be a much longer discussion. And I would not be able to illustrate it at the current stage. Anyway, an overall strategy is of very important for both parties. Before stepping forward, both Google and China’s government officials should pay attention to the differences between “blocked” and “shut down”, and between domestic law and international law.