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April 20, 2017 Terence P. Stewart

(Updated 4-20-2017 afternoon)

The U.S. steel industry has been hard pressed by dumped and subsidized imports for many decades causing the closure of many plants and the loss of thousands of good paying jobs.  While the industry has filed literally hundreds of cases to address unfair trade practices, the industry continues to face large structural problems from China and others.  And steel is a fundamental building block of a strong national defense.

On April 19, 2017, Secretary of Commerce Ross initiated a Section 232 investigation into whether imports of steel mill products threaten national security.[1]  On April 20, 2017, President Trump signed a Presidential Memorandum for the Secretary of Commerce directing Commerce to prioritize the investigation and to “proceed expeditiously.”[2]  How quickly the investigation will proceed is unclear, but, in remarks upon signing the Memorandum, President Trump said “we’ll be back over a period of the next 30 to 50 days, …, and maybe sooner than that.  But statutorily, we probably want to take a very good, strong, hard study.”[3] 

The Commerce Secretary has initiated an investigation under a long extant but relatively seldom used US law.  Specifically, Section 232(b) of the Trade Expansion Act of 1962, as amended, requires the Secretary of Commerce on his own motion or upon the request from the head of any department or agency, to initiate an investigation “to determine the effects on the national security of imports of the article” of interest.  19 U.S.C. 1862(b)(1)(A).

Commerce has up to 270 days to conduct such an investigation, is required to consult with the Secretary of Defense “regarding the methodological and policy questions raised” by the investigation, seek information from other agencies and where appropriate hold public hearings and give interested parties an opportunity to present information.  19 U.S.C. 1862(b)(2)(A).  Commerce can also ask Defense for an assessment of the defense requirements of the article being investigated.  Id. at (b)(2)(B).

At the end of the investigation, the Secretary of Commerce submits a report containing the findings and recommendations of action or inaction and will publish the public portions in the Federal Register.  19 U.S.C. 1862(b)(3)(A) and (B).

The President has 90 days to determine what, if any, action to take if Commerce has found that importations “threaten to impair the national security” and has an additional 15 days to implement the action determined to be necessary to eliminate the threat.  19 U.S.C. 1862(c).  The President must submit to the Congress a written statement of the reasons to take action or to take no action.

Subsection (d) of 232 (19 U.S.C. 1862(d)) reviews elements that should be considered by the Commerce Secretary and the President:

For purposes of this section, the Secretary and the President shall, in the light of the requirements of national security and without excluding other relevant factors, give consideration to domestic production needed for projected national defense requirements, the capacity of domestic industries to meet such requirements existing and anticipated availabilities of the human resources, products, raw materials, and other supplies and services essential to the national defense, the requirements of growth of such industries and such supplies and services including the investment, exploration, and development necessary to assure such growth, and the importation of goods in terms of their quantities, availabilities, character, and use as those affect such industries and the capacity of the United States to meet national security requirements.  In the administration of this section, the Secretary and the President shall further recognize the close relation of the economic welfare of the Nation to our national security, and shall take into consideration the impact of foreign competition on the economic welfare of individual domestic industries; and any substantial unemployment, decrease in revenues of government, loss of skills or investment, or other serious effects resulting from the displacement of any domestic products by excessive imports shall be considered, without excluding other factors, in determining whether such weakening of our internal economy may impair our national security.

Commerce regulations are found at 15 C.F.R. 705 et seq.

Since the law took effect, there have been twenty-six 232 investigations, nine since 1988:  three on crude oil and refined petroleum products, and cases on iron ore and semi-finished steel, ceramic semiconductor packages, gears and gearing products, plastic injection molding machines, uranium, and antifriction bearings.  https://www.bis.doc.gov/index.php/other-areas/office-of-technology-evaluation-ote/section-232-investigations.  Typically import relief has not been provided (crude oil from individual countries embargoed on two occasions, one involving Libya and one involving Iran) but that has depended on both the facts of the individual investigations and the construction of the statutory terms by the Administration in power.  VRAs were used on machine tools; use of national stockpile and the denial of GSP benefits were used on chromium, manganese and silicon ferroalloys; several crude oil cases, President authorized additional fees. 

The Commerce Department has an online pamphlet from June 2007 entitled, Section 232 Investigations Program Guide:  The Effect of Imports on the National Security (Bureau of Industry and Security Office of Technology Evaluation)(includes the statute, regulations and list of prior cases and their disposition).  https://www.bis.doc.gov/index.php/forms-documents/section-232-investigations/86-section-232-booklet/file.

bodog sportsbook review While the investigation and Presidential review could take a year, it could be, and is likely to be, completed much more quickly, especially given the President’s direction that Commerce prioritize and expedite the 232 investigation.  Look for the Trump Administration to view national security needs more broadly than has been done in the past and to construe the statutory considerations in a manner that will support ensuring a viable industry in many sectors going forward.

[1] See Section 232 Notification Letter to Secretary of Defense James Mattis (2017-04-19) at https://www.commerce.gov/sites/commerce.gov/files/media/files/2017/2017-04-19_2.pdf.

[2] See the Memorandum at https://www.whitehouse.gov/the-press-office/2017/04/20/presidential-memorandum-secretary-commerce.  The Department of Commerce’s press release and fact sheets are available at https://www.commerce.gov/news/press-releases/2017/04/presidential-memorandum-prioritizes-commerce-steel-investigation; https://www.commerce.gov/news/fact-sheets/2017/04/president-trump-standing-unfair-steel-trade-practices; https://www.commerce.gov/news/fact-sheets/2017/04/fact-sheet-section-232-investigations-effect-imports-national-security.

[3] See https://www.whitehouse.gov/the-press-office/2017/04/20/remarks-president-trump-signing-memorandum-regarding-investigation.

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The Trump Administration used the law aggressively in 2017-2018 to provide relief on steel and aluminum. For many trading partners, there was concern about the claim of a national security threat from neighbors and allies as well as other countries. A number of countries filed challenges at the WTO and also retaliated against U.S. exports, most on the bogus theory that section 232 was a safeguard action. The U.S. filed disputes against the countries who retaliated. All these disputes remain unresolved at the WTO awaiting panel reports in the second half of 2021.

The Commerce Department also initiated a 232 investigation on automobiles and auto parts and received petitions seeking investigations on a number of other products (e.g., uranium, titanium sponge, mobile cranes, vanadium, electrical steel components for electrical transformers used in power grids). While the 232 investigation on automobiles and auto parts resulted in a report going from Commerce to the President, no action was ever taken and the report was never released publicly or forwarded to the Congress.

The actions by the Trump Administration raised concerns with Congress on whether the law needed to be updated and whether it was being used properly, at least as far as automobiles went. While there has been significant court litigation in the U.S. on steel tariffs that resulted from the 232 investigation, these challenges have been largely rejected by the courts. As noted above, disputes at the WTO continue on the WTO consistency of U.S. actions.

Congressional actions

Both the U.S. House of Representatives and the U.S. Senate saw legislative proposals put forward in 2019 to modify section 232 usually to give the Defense Department a greater role in determining if there is a national security threat and also to ensure the Congress a role in reviewing any proposal before actions were taken. See, e.g., H.R. 1008 (Feb. 6, 2019) and S.365 (Feb. 6, 2019)(identical bills).

During the Senate Finance Hearing considering the nomination of President Biden’s USTR nominee Katherine Tai, a number of Senators raised concerns about greater coordination with Congress by the Administration in the trade law arena generally and a need to review and possibly update certain trade laws.

On March 15, 2021, Senator Rob Portman (R-OH) introduced S.746, the Trade Security Act of 2021, essentially a repeat of the legislation he introduced in 2019. He had six cosponsors — Dianne Feinstein (D-CA), Joni Ernst (R-IA), Kyrsten Sinema (D-AZ), Deb Fischer (R-NE), Roger Wicker (R-MS), and Todd Young (R-IN). The press release explains the purpose of the bill. See Press Release, Portman, Sinema, Ernst, Feinstein, Fischer, Wicker & Young Introduce Trade Security Act to Reform National Security Tariff Process, March 15, 2021, https://www.portman.senate.gov/newsroom/press-releases/portman-sinema-ernst-feinstein-fischer-wicker-young-introduce-trade. The press release is copied below and is follow by the bill which is embedded.

“WASHINGTON, D.C. – U.S. Senators Rob Portman (R-OH), Dianne Feinstein (D-CA), Joni Ernst (R-IA), Kyrsten Sinema (D-AZ), Deb Fischer (R-NE), Roger Wicker (R-MS), and Todd Young (R-IN) today introduced the Trade Security Act, legislation that will reform Section 232 of the Trade Expansion Act of 1962 to better align the statute with its original intent as a trade remedy tool for the president and Congress to respond to genuine threats to national security. In keeping with the original intent of Section 232, this bill makes common-sense reforms that require the Department of Defense to justify the national security basis for new tariffs under Section 232 and increase congressional oversight of this process. The text of the bill is here and a brief summary is below. 

“’We must hold countries that violate our trade laws accountable, but we must do so in a way that protects American jobs and strengthens the U.S. economy,’ said Senator Portman.  ‘I originally introduced this bill over concerns regarding the previous administration’s intent to misuse Section 232 statute to impose tariffs on automobiles and auto parts, which would have a devastating impact on Ohio jobs and the U.S. economy as a whole. This bipartisan legislation preserves this trade tool while properly placing the national security designation at the Department of Defense and expanding the role of Congress in the process. As a former U.S. Trade Representative, I know that misusing our trade tools not only hurts our exports and our manufacturers, but also our consumers, so I urge my colleagues to support this bipartisan legislation.’ 

“’Preventing harmful tariffs caused by unnecessary trade wars will save Arizona jobs and protect Arizona families and businesses from higher prices,’ said Senator Sinema.

“’When bad actors abuse and take advantage of our trade policies in a way that threatens our national security, we need to hold these countries accountable,’ said Senator Ernst. ‘The Department of Defense, not the Department of Commerce, should evaluate and verify the national security basis for Section 232 tariffs. This bipartisan legislation will increase congressional oversight, and in turn, help the president make decisions that support American jobs while protecting our national security.’

“’This bipartisan legislation would restore Congress’ trade oversight role and ensure that the Department of Defense justifies the national security needs of tariffs imposed under Section 232,’ said Senator Fischer.

“’Indiana is the most manufacturing-intensive state in the country, and tariffs can detrimentally impact Hoosier farmers and manufacturers if wrongly utilized. During this pandemic that has disrupted our domestic supply chains, we need to be especially vigilant about how Section 232 is used. I’ll continue working to ensure Hoosiers have a seat at the table bodog sportsbook review for future trade discussions,’ said Senator Young.

“NOTE: The Trade Security Act reforms the Section 232 statute to ensure that (1) any Section 232 actions are based on a national security determination by the Department of Defense; and (2) Congress has a larger role to play in 232 actions. Specifically, this bill will:

“Bifurcate the existing Section 232 process into an investigation phase, led by the Department of Defense, and a remedy phase, led by the Department of Commerce. Splitting these responsibilities, while guaranteeing consultation between the two departments at all stages of the process, plays to each department’s strengths to ensure that the statute is used for genuine national security purposes.

“Require the Department of Defense – instead of the Department of Commerce – to justify the national security basis for new tariffs under Section 232 and make the determination about the national security threat posed by imports of certain products. If a threat is found, the Department of Defense would send its report to the president. In the event that the president desires to take action based on the finding of a national security threat, the president would then direct the Secretary of Commerce, in consultation with the Secretary of Defense and the U.S. Trade Representative, to develop recommendations for how to respond to the threat. After receiving the recommendations of the Secretary of Commerce, the president would decide whether to take action.

“Increase the role of Congress in the Section 232 process by expanding the process whereby Congress can disapprove of a Section 232 action by passing a joint resolution of disapproval. Currently, Section 232 contains a disapproval resolution process limited only to the disapproval of actions on oil imports, which was inserted into Section 232 in 1980 by Congress in response to concerns about the misuse of the statute. This bill would expand the use of that disapproval resolution process to all types of products. The reformed disapproval process will only apply to future Section 232 actions.

“Require consultation with Congress throughout the Section 232 process. “

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Conclusion

In the United States, Congress and the Administration both have roles in international trade. Over the years, large amounts of responsibility for trade policy has been delegated by Congress to the President. The Trump Administration was aggressive in using all U.S. laws on the books to address trade areas of concern. When laws have not been reviewed in decades for fitness for purpose, an aggressive use of provisions, even if authorized by statute, will result in efforts to reconsider the scope of legislation by Congress.

Obviously, the introduction of a bill does not guarantee movement or modification of existing U.S. law. But there have been massive changes to the global economy and what may constitute a threat over the last nearly sixty years. There are also the questions of WTO compatibility and any WTO reform that may be appropriate based on the outcome of pending disputes and prior disputes on the use of GATT Art. XXI. Only a careful review of the existing law, current challenges, and WTO implications and potential modifications will lead to an appropriate review and possible modification of Section 232.

Senator Portman and the six co-sponsors have introduced a bill that if adopted would shift the roles of Commerce and Defense in the current legislation and would add a greater role for Congress in considering recommended actions. The bill certainly reflects concerns that have been expressed by many Senators and House members in the last few years on the proper role of Section 232 investigations.

The myriad problems facing U.S. companies from actions by some governments that are not addressed under the WTO, and the challenges to the national ability to safeguard health during the pandemic raise important red flags. Any legislative review of one statute should be undertaken in the context of a review of the array of tools available to the government and to the private sector and whether those tools are adequate to the needs of the present reality.

To read the original blog post from Terrence Stewart’s Current Thoughts On Trade, please click here

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The reason or reasons for the low number of disputes is not known. However, many WTO Members are focused on the COVID-19 pandemic at home reducing the focus on WTO activities. Moreover, the pandemic has disrupted the ability of the WTO to conduct business as usual, with no meetings in person having taken place over the last month and with many Members arguing against making substantive decisions during the pendency of the pandemic lockdown in many countries.

There have been a few Appellate Body reports on disputes where Appellate Body hearings had occurred before December 10, 2019 and some panel reports issued in ongoing cases. The Appellate Body will not issue further reports after the plain packaging cases pending a resolution of the impasse on the functioning of the Appellate Body.

Arbitration under Art. 25 of the Dispute Settlement Understanding

The EU and fifteen other WTO Members have agreed to a Multi-Party Interim Arbitration Agreement to permit signatories to use arbitration along agreed lines as a substitute for an appeal within the WTO until the Appellate Body is back functioning. While the agreement has not been notified to the WTO as yet, pending signatories clearing domestic hurdles, the agreement is open to other WTO Members who wish to participate.

n an introductory statement by Commissioner Phil Hogan at an informal meeting of EU Trade Ministers on April 16, Commissioner Hogan stated that

“Working with like-minded WTO members since the effective collapse of the Appellate Body last December, we have developed the Multi Party Interim Arbitration Arrangement as a stop-gap to maintain an independent, two step dispute settlement function.

“There are 15 co-signatories alongside the EU, including some of the biggest users of the system, such as Brazil and China. I have also extended a broad invite to the entire membership to join, underlining the inclusive nature of the arrangement.

“There will be 10 arbitrators on the MPIA roster. The EU has the option of nominating a candidate. The nominee will need to be submitted by the end of May. We will notify the TPC of work on this in due course, respecting best practices used for the nomination of members of the Appellate Body heretofore.”

EU’s efforts to retaliate without WTO authorization where Appellate Body is not functioning and defending party does not agree to arbitration

The EU has also been working to develop regulatory authority to impose sanctions without WTO authorization on Members against whom the EU has brought disputes when such Members lose panel decisions at the WTO, don’t participate in arbitration and rather file an appeal when the Appellate Body is not bodog online casino functioning preventing retaliation at the WTO.

The EU Council and Parliament need to meet to agree to a modified final text. It is assumed that a major target of the EU actions is the United States. There are two pending disputes that the EU has with the US where panels are underway, including the EU challenge to the US Section 232 actions on steel and aluminum and the EU challenge of a countervailing duty order on olives from Spain.

On the 232 dispute, the EU did not pursue a challenge prior to taking retaliation, claiming that the US use of the national security law (Section 232 of the Trade Expansion Act of 1962, as amended) on steel and aluminum was in effect a safeguard action. Thus, the EU claimed it was justified in retaliating to a certain extent immediately consistent with the Safeguard Agreement.

The U.S. has filed a dispute challenging the EU’s retaliation as the U.S. action was not taken under U.S. safeguard (escape clause) law but pursuant to a national security law making the EU retaliation inappropriate. Both disputes are pending before panels at the WTO.

The interesting element of the EU’s pursuit of new regulatory authority is its willingness to act outside of the WTO while wrapping itself in the mantle of champion of the multilateral system.

China’s challenge of U.S. tariffs following Section 301 of Trade Act of 1974 investigation (and retaliations by China)

In August 2017, USTR commenced an investigation into whether certain actions of the Chinese government violated Section 301 of the Trade Act of 1974. Forced technology transfer, cybertheft of intellectual property and other issues were investigated by USTR and resulted in a determination in early 2018 of violations of U.S. law. 

China filed a WTO dispute after the initial tariffs imposed by the United States. WT/DS543. It filed two additional requests for consultations as the U.S. expanded tariffs on other products, although both of these requests for consulation remain in the consultation phase. WT/DS565 and WT/DS587. The U.S. filed a challenge to China’s retaliation. WT/DS558.

While the panel proceedings have been underway in Geneva, the United States and China reached a Phase One Agreement in January 2020.

The WTO dispute settlement panel provided a notice to the parties that the panel decision would be available to the parties by the end of June (a little more than two months from now).

Because the dispute involves the largest amount of trade (at least when considering the additional actions by both the U.S. and China) of any trade dispute in the history of the WTO, the panel decision will not only be carefully watched by all members but could result in major rifts within the organization by one or both of the parties.

China’s briefs in disputes are typically not publicly available. The U.S. always releases public versions of its briefs. The below excerpt from the first U.S. submission in WT/DS543 gives a glimpse of the importance of the case from the United States perspective. The entire first brief is embedded.

“I. INTRODUCTION

“1. Technology, intellectual property, and innovation are the foundation of the competitiveness of the United States and many other Members in the world economy. China has chosen to adopt a range of policies and practices to obtain an unfair competitive edge over other Members by stealing bodog online casino or otherwise unfairly acquiring their technology and intellectual property. Where those policies or practices can be addressed through WTO rules, the United States is pursuing WTO dispute settlement. Most of China’s practices, however, are not covered by existing WTO disciplines.

“2. In these circumstances, the United States is pursuing its sovereign right to protect its fundamental economic competitiveness from China’s unfair, predatory, and harmful technology-transfer policies. The purpose of the U.S. tariff action is to obtain the elimination of China’s unfair practices, and thereby to promote a fair and sustainable trading system for the United States and all other Members that rely on technology and intellectual property for their competitiveness in world markets. Unfortunately, China has responded not by reforming its unfair technology-transfer policies, but instead by imposing retaliatory tariffs on most U.S. goods.

“3. In pursuing this course of action, China has demonstrated what the Panel should conclude in response to China’s pursuit of this dispute – namely, that this is a bilateral dispute between the United States and China concerning key economic issues not covered by existing WTO rules. In short, this dispute is fundamentally not about WTO rights and obligations.

“4. China’s decision to pursue this dispute represents a profound misuse and abuse of the WTO dispute settlement system. Having already adopted retaliation in response to the U.S. measures aimed at obtaining a fair world trading system, China knows full well that any WTO findings will not contribute to the resolution of the matter. Rather, China’s pursuit of this dispute is a cynical and hypocritical attempt to try to have the WTO side with China in the ongoing dispute involving China’s unfair technology transfer policies. To elaborate:

“5. In bringing this dispute, China seeks to abuse the WTO dispute settlement system by attempting to use it as a shield for a broad range of unfair and trade-distorting technology transfer policies and practices not covered by WTO rules. In doing so, it is China, and certainly not the United States, that – as China puts it – ‘is undermining’1 the viability of the multilateral trading system.

“6. China’s decision to launch this dispute is hypocritical. China is currently retaliating against the United States by imposing duties on most U.S. exports – over $100 billion of trade. China cannot legitimately challenge measures at issue for being “unilateral”2 and WTO-inconsistent, while at the same time openly adopting its own unilateral tariff measures in connection with the very same matter.

“7. The matters related to this dispute are currently subject to bilateral discussions between the Governments of China and the United States. The parties are holding these discussions at multiple levels, including between the leaders of the two disputing parties. It is those bilateral discussions, and not any possible findings to be adopted by the Dispute Settlement Body (“DSB”), that will resolve the important issues arising from China’s unfair and harmful technology transfer policies, from the U.S. response to those policies, and from China’s unilateral retaliation.

“8. Under these circumstances, the outcome of a dispute settlement proceeding would be pointless, and, worse – a misuse by China of the dispute settlement system by trying to have the WTO side with China in support of its fundamentally unfair technology transfer policies.

“As noted, China has already taken the unilateral decision that the U.S. measures cannot be justified under WTO rules, and on that basis, already imposed tariff measures on most U.S. goods. Accordingly, addressing China’s legal claims would not ‘secure a positive solution to [this] dispute,’3 as China has already adopted the response that China unilaterally has determined is appropriate.

“9. Fundamentally, both the United States and China have recognized that this matter is not a WTO issue: China has taken the unilateral decision to adopt aggressive industrial policy measures to steal bodog online casino or otherwise unfairly acquire the technology of its trading partners; the United States has adopted tariff measures to try to obtain the elimination of China’s unfair and distortive technology-transfer policies; and China has chosen to respond – not by addressing the legitimate concerns of the United States – but by adopting its own tariff measures in an attempt to pressure the United States to abandon its concerns, and thus in an effort to maintain its unfair policies indefinitely.

“10. By taking actions in their own sovereign interests, both parties have recognized that this matter does not involve the WTO and have settled the matter themselves. Accordingly, there in fact is no live dispute involving WTO rights and obligations. Therefore, in light of each party’s action settling the matter, the report of the Panel should “be confined” to a brief description reporting that the parties have reached their own resolution, as provided for in Article 12.7 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (‘DSU’).4

“11. Even aside from the fact that the parties have settled the matter through their actions, were the Panel to examine China’s contentions, the Panel would find that the U.S. measures at issue would be justified under WTO rules.

3 See DSU Article 3.7 (Providing in part that “The aim of the dispute settlement mechanism is to secure a positive solution to a dispute.”).
4 See DSU, Article 12.7 (‘Where the parties to the dispute have failed to develop a mutually satisfactory solution, the panel shall submit its findings in the form of a written report to the DSB. In such cases, the report of a panel shall set out the findings of fact, the applicability of relevant provisions and the basic rationale behind any findings and recommendations that it makes. Where a settlement of the matter among the parties to the dispute has been found, the report of the panel shall be confined to a brief description of the case and to reporting that a solution has been reached.’). (emphasis added).

“12. The United States adopted the measures at issue in this dispute to combat China’s longstanding policy and practice of using government interventions, coercion, and subterfuge to steal or otherwise improperly acquire intellectual property, trade secrets, technology, and confidential business information from U.S. companies with the aim of advantaging Chinese companies and advancing China’s industrial policy goals. Although China’s conduct is not addressed by current WTO rules, it is unfair and contrary to basic moral standards. No WTO Member endorses forced technology transfer policies and practices such as those employed by China.

“13. Indeed, such fundamentally unfair policies and practices undermine support for an international trading system that permits such practices to escape discipline, undermine U.S. norms against theft and coercion, and undermine the belief in fair competition and respect for innovation, all of which are key aspects of U.S. culture (as well as that in a number of other Members). ). The United States does not undertake these activities against Chinese citizens or companies.

“China’s non-reciprocal and morally wrong behaviour further threatens to undermine U.S. society’s belief in the fairness and utility of the WTO trading system, if that system creates the conditions for, and fails to address, a fundamentally uneven playing field. Accordingly, the measures at issue in this dispute are legally justified because they are measures “necessary to protect public morals” within the meaning of Article XX(a) of the General Agreement on Tariffs and Trade 1994 (“GATT 1994”).

“14. Finally, the United States notes that one of the U.S. measures that China is challenging in this dispute is not within the Panel’s terms of reference because it was issued and took effect after China requested the establishment of a panel. Accordingly, for this additional reason, there is no legal basis for the Panel to examine or make any findings with respect to that measure.

“15. The United States emphasizes that a world trading system where one Member can adopt policies to steal or unfairly acquire technology and intellectual property from its trading partners, and where the organization responsible for overseeing world trade would entertain a request to issue findings in support of the Member adopting these unfair actions, is simply unsustainable. In order to maintain the viability and relevance of the WTO, this Panel must reject China’s request that the Panel make findings that China might use as support for maintaining its fundamentally unfair technology transfer policies and practices.

“1 See China’s First Written Submission, para. 5.

“2 See China’s First Written Submission, paras. 3, 4, 5, 24.

“3 See DSU Article 3.7 (Providing in part that “The aim of the dispute settlement mechanism is to secure a positive solution to a dispute.”).

“4 See DSU, Article 12.7 (‘Where the parties to the dispute have failed to develop a mutually satisfactory solution, the panel shall submit its findings in the form of a written report to the DSB. In such cases, the report of a panel shall set out the findings of fact, the applicability of relevant provisions and the basic rationale behind any findings and recommendations that it makes. Where a settlement of the matter among the parties to the dispute has been found, the report of the panel shall be confined to a brief description of the case and to reporting that a solution has been reached.’). (emphasis added).”

Canada’s dispute with the U.S. over Countervailing Duty Order on Supercalendered Paper from Canada

Canada pursued a challenge to a countervailing duty investigation and order on supercalendered paper from Canada conducted by the United States and received reports from the panel and Appellate Body that the U.S. actions were inconsistent with WTO obligations. Canada pursued the challenge despite the fact that the order had been revoked retroactively by the United States. In a submission posted today on the WTO website, Canada has given notice that it intends to seek retaliation at such time as the DSB is able to convene (recognizing the present inability to meet because of the COVID-19 lockdown in place). WT/DS505/11 (20 April 2020).

Because the United States has viewed the panel and Appellate Body as having erred in their decisions in the case and because of the importance to the United States of its countervailing duty law in addressing other countries subsidy practices, any such action by Canada is likely to worsen the dynamics in Geneva and in capitals in terms of reaching reform of the dispute settlement system.

Needed reforms of the dispute settlement system

While there has been activity to put in place for some Members an arbitration system, there is little indication of any effort to pursue resolution of the underlying reform needs to the dispute settlement system outlined by the United States over the last several years.

The COVID-19 pandemic has made forward movement more difficult as attention of most countries, understandably, is focused on the immediate needs of their populations to address the global pandemic.

Conclusion

With the 12th WTO Ministerial Conference already postponed, with meetings at the WTO cancelled through at least April, there has been increasingly diminished hopes for what the WTO can achieve in 2020. While the dumbing down of expectations appears true across the board of the WTO’s reform program and pending negotiations, it is certainly true for reform of the dispute settlement system.

The EU and China have engaged in unilateral action regardless of WTO rules (generally where the U.S. has taken actions that the others disagree with and don’t want to work through the WTO system or pursue reform). The U.S. has taken aggressive actions in a number of situations, though they have articulated WTO justifications for the actions which justifications are currently subject to WTO dispute settlement (but usually in situations where the Members challenging the U.S. have unilaterally retaliated without WTO authorization).

bodog casino With important panel decisions due out yet this year and with EU actions to give itself retaliation rights regardless of WTO authorization while the Appellate Body is nonfunctioning, the likelihood of WTO Members focusing on dispute settlement reform are seemingly nonexistent for the foreseeable future. The ride is likely going to get a lot bumpier in the coming months.

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On June 3, WIIT co-hosted with the GW Center for International Business Education and Research (CIBER) and the District Export Council (DEC) of Virginia and DC an event at George Washington University titled “Understanding Trump’s National Security Tariffs: Section 232 of the Trade Expansion Act of 1962.”

Section 232 of the Trade Expansion Act of 1962 authorizes the president, after investigation by the Department of Commerce, to “adjust” imports determined to threaten the national security. In March 2018, President Trump imposed a 25% duty on steel and a 10% duty on aluminum. Most countries are covered by these tariffs but some have negotiated quotas with the United States. National security tariffs are now looming for automobiles and auto parts, and section 232 investigations are underway for uranium and titanium sponge. Two expert panels examine: – The arcane law and its limits as tested by litigation – Proposed legislation to restrict the president’s authority – The steel and aluminum tariffs and the product exclusion process, and how these have impacted U.S. manufacturers and global supply chains – The effect of such tariffs on the auto industry – The impact on the negotiation of free trade agreements

PANEL 1: THE LAW AND ITS LIMITS

Marc Busch, Georgetown University

Halie Craig, US Senate

Alan Morrison, George Washington University

Vanessa Sciarra, National Foreign Trade Council

Moderator: Evelyn Suarez, The Suarez Firm

PANEL 2: COLLATERAL DAMAGE OR UNINTENDED CONSEQUENCES –

Catherine Boland, Motor & Equipment Manufacturers Association

Mike Dankler, U.S. House of Representatives

Christine McDaniel, Mercatus Center, GMU

Paul Nathanson, Coalition of American Metal Manufacturers and Users

Moderator: John Saylor, Commonwealth Trading Partners, Inc.

The first of two expert panels discussed the legal foundation and limitations of the current administration’s use of Section 232. The talk featured comments from Marc Busch (Professor of International Business Diplomacy at Georgetown University), Halie Craig (Legislative Assistant for Senator Pat Toomey), Alan Morrison (Associate Dean for Public Interest & Public Service Law at GW), Vanessa Sciarra (VP of Legal Affairs and Trade & Investment Policy at the National Foreign Trade Council), and was moderated by Evelyn Suarez (Principal and Founder of the Suarez Firm). Vanessa Sciarra provided an overview of the history of the national security statute and origins of the Section 232 authority delegated to the executive branch by Congress. Panelists such as Halie Craig and Alan Morrison discussed the limitations of the law, and highlighted their respective legislative and judicial attempts to curb the president’s authority. Marc closed out the session with a summary of the cases current in front of the WTO that challenge the use of unilateral tariffs on national security grounds.
 
The second panel assessed the collateral damage and unintended consequences from imposing tariffs. The discussed included comments from Catherine Boland (VP, Legislative Affairs, Motor & Equipment Manufacturers Association), Mike Dankler (Chief of Staff for Rep. Jackie Walorski), Christine McDaniel (Senior Research Fellow, Mercatus Center, George Mason University), Paul Nathanson (Senior Principal, Bracewell LLP), and was moderated by John Saylor (Director, International Trade Group, Commonwealth Trading Partners Inc.). The discussion dug into the details of the exclusion process, focusing on the high bar for success, as well as uncertainty created in the market, and the difficulties in planning for the future, particularly for industries for which modifying the supply chain is a more involved endeavor.

The event was organized by Evelyn Suarez (Former WIIT President), John Saylor (GW-CIBER Board of Advisors), Eva Hampl (Co-chair of Legislative Initiatives), and Jing Jing Zhang (Co-chair of Legislative Initiatives).

Copyright © 2019 GW Center for International Business Education and Research (CIBER) . All rights reserved.

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The successive rounds of tit-for-tat tariffs between the US and China, which began last July, have attracted the most attention, but they were proceeded by section 232 tariffs on steel and aluminum in March which broadsided several of the US’ largest trading partners and key strategic allies. Meanwhile, the White House continues to weigh the possibility of applying global automotive tariffs, as discussions on possible trade agreements with Japan and the EU – two major auto exporting economies – are expected to commence shortly.

The stated US rationale for these tariffs has been to elicit policy changes to address perceived unfair trade practices on the part of trade partners, or more broadly in the belief that tariffs can reduce bilateral trade surpluses maintained by these partners.  The section 232 tariffs on steel and aluminum were nominally taken on national security grounds, but the US President himself has implied that the real rationale was to reduce the US trade deficit or gain negotiating leverage, and most analysts find the national security arguments to be specious.

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The Trade Tool Box – what one can expect in the coming years

Many of the tools in the trade tool box are for the government, although the private sector can support their use and identify needs.

• Historically, many trade problems with trading partners, in terms of market access, compliance with trade agreement obligations, or treatment of US investment overseas, have been handled either informally with trading partners or through a formal dispute at the WTO or with an FTA partner. See 19 USC 2411-2420.
• Trump Administration bodog casino will similarly attempt to address many issues bilaterally, resorting to disputes when bilateral consultations fail to achieve the needed correction.

The President can also take certain action under existing statutes of a broad nature.

• For example, section 122 of the Trade Act of 1974 permits the President to impose additional tariffs up to 15% on all goods (with some exceptions if desired) for balance of payment reasons, with some limitations (duration limited to five months absent Congressional extension).
• See Caitlain Devereaux Lewis, Congressional Research Service, Presidential Authority Over Trade: Imposing Tariffs and Duties (December 9, 2016) for a discussion of a range of other authority delegated to the President.
• The President can also withdraw from existing trade agreements with six months notice (e.g., NAFTA, WTO).

For the private sector, there are a number of tools to address import issues and a broad tool to work with the Administration to address problems in other markets. While Government can initiate actions under each of the laws, historically cases are brought by private parties (with the exception of section 301 and escape clause actions).

• US antidumping law (Section 731 et seq. of the Tariff Act of 1930, as amended);
• US countervailing duty law (Section 701 et seq. of the Tariff Act of 1930, as amended);
• US escape clause (safeguard) law (Section 201 of the Trade Act of 1974, as amended);
• Section 337 of the Tariff Act of 1930, as amended (dealing with other unfair trade practices not covered by AD or CVD laws, including imported goods that infringe patents or violate trademark law);
• Section 232 of the Trade Expansion Act of 1962, as amended (national security threatened by imports of an article);
• Section 301 of the Trade Act of 1974, as amended (formal method for private interest to raise issues of actions of trading partners that either violate agreements or are otherwise unfair to US interests).

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Terence P. Stewart is the Managing Partner of Stewart and Stewart. He assists clients with international trade matters through the pursuit of trade remedies before administrative agencies, courts, and dispute settlement bodies of international organizations. Additionally, he pursues clients’ interests through the development of legislative options on trade-related issues and the evaluation of regulations and practices of countries where clients are active. Mr. Stewart also provides clients with insight on the opportunities and challenges presented by trade agreements and promotes clients’ interests during negotiations. 

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© Terence P. Stewart

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