对华半导体出口管制与WTO安全保障的例外射程——是“小院高墙”还是“尽可能地保持领先”？

In the context of Russia's invasion of Ukraine and supply chain disruptions caused by the COVID-19 pandemic, and in addition to geopolitical conflicts between the U.S. and China, the importance of semiconductors as a strategic commodity is rapidly increasing. Under the first term of the Trump administration, the U.S. tightened export controls on China, targeting advanced semiconductors and equipment and technologies for their development, design, and manufacture, by placing Huawei and its affiliated companies on the Entity List of the U.S. Export Administration Regulations (EAR) in 2019. Subsequently, since October 2022, the Biden administration has successively introduced more stringent and comprehensive export controls and has gradually expanded their scope mainly in order to prevent or delay China's development of artificial intelligence (AI). The analysis of the U.S. measures in this paper shows that the U.S. intends to secure its advantage over China, particularly in technologies related to the wafer process in semiconductor manufacturing.

From one perspective, the U.S. measures are an industrial policy tool targeting dual-use products, which corresponds to a medium- to long-term security strategy against the backdrop of the continuing U.S.-China geopolitical tensions. The Biden administration has stated that its goal is to take “as large of a lead as possible” over China in the semiconductor technologies. This paper analyzes the U.S. regulations and explores, through the interpretation of Article 21 of the GATT (security exceptions), whether such comprehensive trade restrictions for security purposes based on a medium- to long-term framework are consistent with the WTO agreements, or whether only measures that are strict but as narrowly scoped as possible ("small yard, high fence") are permissible.