.... International Trade Relations .... 2009 ..... Dr. Malawer ....... International Trade Relations .... 2009

 

                     

 

                                                                                         NEWS ITEMS

                                                                          global trade law

                                                                 

                                                                         [2008]

 

                                                                     [2009]

  • "From Doha to Bretton Woods II." Foreign Affairs (Jan. / Feb. 2009).
  • "Global Wave of Protectionism, Global Bailouts & WTO." Wall Street Journal (1.12.09).
  • "Bush Legacy of Bitterness & Obama Congressional Trade Problems." Financial Times (1.16.09).
  • "U.S. Files WTO Case Challenging EU Restrictions on U.S. Poultry Exports." USTR News (January 16, 2009). Case involves the SPS Agreement and issues of food safety pertaining to PRT's as a cleansing technique of meat and poultry.
  • The WTO released its panel report concerning the U.S. action against China as to enforcement of IPRs with mixed results for the U.S. U.S. - China  (Protection & Enforcement of Intellectual Property Rights) (Panel Conclusions) (January 26, 2009). See also "U.S. Beijing Spar over WTO Piracy Case." Wall Street Journal (March 21, 2009); USTR News Release (March20, 2009).
  • "Shaping the Post-Crisis World." World Economic Forum, Annual Meeting (2009).  "Better and tighter international coordination of economic policy through a strengthened multilateral system and a firm rejection of protectionism offer the best routes to overcoming the most serious global economic crisis since World War II, the 39th World Economic Forum Annual Meeting heard." Panel on the New Economic Era." (Panel, 2009).
  • The U.S. Supreme Court ruled that antidumping legislation applies only to import of goods and not to import of  service via service contracts.  The "reasonable standard" in characterizing a contractual transaction is applicable.  This upholds the administrative agency's determination as long as it is reasonable. This case involved the import of enriched uranium after the feed uranium was sold to the foreign enricher after the feed uranium was "substantially transformed." The Court held that this was a sale and import of goods even though the contract itself called it a service agreement.  The Department of Commerce was reasonable in reclassifying the contract despite the contract language. U.S. v. Eurodif (S. Ct. January 26, 2009). 
  • The stimulus  bill adopted by the House includes "Buy American" provisions. Some argue that such provisions  violate the WTO Government Procurement Agreement.  Many large American multinationals are opposed because these provisions  would invite retaliation and hamper their exports to foreign countries implementing their own stimulus packages. "Buy American Rider Sparks Debate." Washington Post (1.29.09).
  • "[C]urrent laws regulating financial commerce remain far behind those regulating manufactured goods. .... Analysts are also bracing for nations to make excessive use of the legal tools now available to them to fight unfair trade, such as filing anti-dumping cases before the WTO." "Out of Gaps in Treaties, First Salvos if Trade War." Washington Post (2.1.09).  
  • Lamy's review of the TPRB new trade restrictions as "limited" in wake of the global financial crisis. "Lamy -- TPRB Review." (WTO 2.9.09).
  • Two cartoons -- "Globalization Goes into Reverse" and "Belt Tightening." Financial Times (2.3.09 and 2.7.09).  
  • Buy-out firms have signed on to the U.N. Code on Principles of Responsible Investment. "Buy-Out Groups & U.N. Code." Financial Times (2.11.09). See, U.N. Principles for Responsible Investment. 
  • This case, which represents the second largest fine ever in an FCPA prosecution, demonstrates the FBI’s continued commitment to aggressively investigate violations of the Foreign Corrupt Practices Act.  "KBR Pleads Guilty to Foreign Bribery to Pay $402 Million." (USDOJ News  2.13.09).
  • The global economic crisis is viewed  by the administration has become the top national security issue.  "Global Economic Crisis." New York Times (2.13.09). Job losses globally pose a threat to worldwide stability. "Job Losses Pose Threat to Stability Worldwide. "  New York Times (2.15.09).

  •  Update WTO Cases & the U.S. [Oct. 2008 – Feb. 2009].  "Trade Wars: Will Protectionism Win out over Recovery." Knowledge@Wharton (2.18.09); Update -- Data on WTO Cases (2.23.09). 

  • These two articles indicate the great slowdown in global trade recently and the  rise of "Economic Nationalism (Protectionism)," at least the fear of it globally. "All Around the World, Trade is Shrinking." New York Times (2.28.09) and "The Dangers of Turning Inward," Wall Street Journal (March 1, 2009). This article is by Jeff Garten, former Dean at the Yale School of Management and former Undersecretary of  Commerce for International Trade, U.S. Dept. of Commerce (Clinton Administration). See also the recent speech by  Pascal Lamy, "Protectionism Can't Be Smart." WTO News  (March 2, 2009.)

  • President Obama's trade agenda was released on March 2, 2009, as an update to the previously released USTR trade agenda of the Bush administration. It "reaffirms America's commitment to a rules-based trading system." The President's Trade Policy Agenda (USTR March 2, 2009). See also "U.S. to Toughen its Stance on Trade." Washington Post (3.10.09); "Obama's Trade Agenda." New York Times (3.11.09).

  • The World Bank has reported that for the first time since 1945 both global trade and the global economy are to shrink this year. "World Bank & Global Economy." New York Times (3.9.09). See also, "Protectionist Trends." World Bank -- Trade Notes (March 2, 2009).   The WTO reports the decline in global trade will be 9%. WTO Press Release (March 23, 2009).

  • For recent developments concerning international institutional efforts addressing global business and trade issues by developing global rules and standards the OECD and the U.N. have been active see  U.N. Global Compact and the OECD (by drafting and proposing  multilateral treaties and guidelines). The Business Roundtable is a private entity consisting  of U.S. multinationals and often provide policy proposals on  global trade issues. (Trade Center for the Business Roundtable).

  • The following is  a recent WTO report identifying global trade measures (some consider protectionist) taken since the start of the financial crisis. "Financial and Economic Crisis and Trade-Related Developments." (WTO Report, March 26, 2009).

  • Proposals for imposing tariffs on products that are produced by use of high CO2 emissions are potentially in violation of WTO obligations and could be a form of protectionism and which could make heavy U.S. industries less competitive, so argues an editorial in the Wall Street Journal. "Cap and Trade War -- Carbon Tariff." Wall Street Journal (3.31.09). The carbon tariff  is potentially a newer trade dispute along with the subsidization of biofuels.

  • The G-20 Final Communique (London Summit) contains various provisions concerning financial regulation, the Financial Stability Board, OECD tax haven secrecy / sanctions,  protectionism,  trade / investment promotion, and the WTO.  "Final G-20 Communique -- Global Plan for Recovery and Reform (London Summit)."  (April 2, 2009).

  • The National Intelligence concludes that that future geopolitical "strategic rivalries are most likely to revolve around trade, investments, and technological innovation and acquisition."  That this new transnational agenda will demand far greater multilateral cooperation. Global Trends 2025 -- A Transformed World (National Intelligence Council, November 2008). (Executive Summary).

  • An executive for Hitachi was indicted in his role of global price-fixing for LCD panels sold to Dell. Previously Hitachi plead guilty. "Hitachi Executive Indicted for LCD Price-fixing." DOJ Press Release (March 31, 2009).

  • U.S. steel companies filed antidumping cases against China in the International Trade Commission. "Steelmakers Accuse China of Dumping in the U.S." Wall Street Journal (4.9.09).

  • The Obama administration in an historical measure lifted significant U.S. restrictions (sanctions) on travel and telecom that have been in place on Cuba for years. However, most aspects of the trade embargo still remain. Fact Sheet: Reaching Out to the Cuban People (White House 4.13.09). (Word doc.)

  • As the Bush Administration the Obama Administration declined to label China a currency manipulator in its semi-annual report on international exchange rate policies. U.S. Treasury Press Release (April 15, 2009). 

  • The EU has recently announced an antirust investigation of transatlantic airlines alliances (One World and Star Alliance) for  possible cartel pricing of fairs. "Alliances between Transatlantic Airlines." Financial Times (4.21.09).

  • A compliance panel of the WTO has determined that the U.S. is still not in compliance applying its concept of zeroing in antidumping cases concerning Japan. Case by Japan Concerning U.S. Zeroing A/D. (WTO Compliance panel 21.5 on 4.24.09). (Conclusions and findings)

  • An example of the extraterritorial reach of U.S. law is the taxation of foreign source income of U.S. firms through their subsidiaries. (This is the worldwide taxation system of the U.S.) Currently this foreign income is not taxed until it is repatriated back home.  This tax deferral is what President Obama is proposing to change. "Tax Fight Would Hit Biggest Corporations Hard." Wall Street Journal (4.22.09).

  • First major statement by the new USTR Kirk reaffirming the importance of  WTO negotiations, litigation and pursuing a progressive trade policy benefiting the U.S. and global recovery. "Trade and Economic Agenda: American Families and Global Recovery." USTR Remarks (4.23.09).

  • Issues concerning tax evasion and crackdown on tax havens and cross-border tax evasion is a top priority of the OECD as well as of the G-20 and the Obama administration. Exchange of information is an important tool to fight this. "Exchange of Information." OECD (Website April 2009). The OECD views taxation as integral to trade and investment and impacts economic development and transactional flows.  The OECD produces model treaties and standards to be voluntarily adhere to by states that normally require adoption by  states as international obligations and as national legislation.

  • Global enforcement of the Foreign Corrupt Practices Act by the SEC and Dept. of Justice has led to greater global demand by foreign companies for compliance with U.S. legal and financial regulatory requirements. "Enforcement Goes Global." National Law Journal (4.27.09).

  • The EU is on the verge of imposing its largest antitrust fine ever. This concerns Intel an American chip maker corporation.  This is in addition to aggressive actions by the EC concerning Microsoft over Windows Media and now Internet Explorer. "In Europe, Intel Faces Large Antitrust Fine." New York Times (4.30.09); "Intel Euro Billion Fine." Financial Times (5.11.09). 

  • The issue of Swiss banks (UBS) and defrauding the U.S. government involves a tax haven, a proposed bilateral tax treaty based upon OECD guidelines,  Swiss law that makes criminal violation of  bank secrecy laws, and U.S. foreign / trade policy to end tax havens.  "Swiss Banks." Washington Post (5.1.09). 

  • Obama's tax proposals concerning multinational corporations and global trade raises issues of jobs and global competitiveness. "Firms Face New Tax Curbs." Wall Street Journal (5.4.09); "Multinational Firms Face Tighter Tax Rules (Off-Shore Tax Avoidance)." Wall Street Journal (5.4.09); "Obama & Multinationals -- Tax Deferral, Foreign Tax Credits and Transfer-Pricing." New York Times (5.5.09).

  • China's new monopoly law has been applied to mergers and is considered to raise significant issues concerning cross-border mergers into China. This involves both investment and trade issues and the concern of protectionism in the guise of merger control. "China's Monopoly Regime." Financial Times (5.4.09); "Antitrust in China." Financial Times (5.5.09).

  • Because of weak antitrust policies of the Bush administration U.S. firms filed actions in the more aggressive EU antitrust system. U.S. antitrust policies are now being reversed by the new Obama administration.  "Obama Repudiates Bush Administration Antitrust Guidelines."  New York Times (5.11.09); "Reversal of Bush's Policy on Monopolization Offenses (§ 2)." USDOJ New Release (May 11, 2009).

  • "China Files WTO Complaint Against EU for A/D as to Iron & Steel Fasteners." (8.3.2009).

  • The U.S. has won its most recent case against China in the WTO concerning its import and distribution restrictions on copyright-intensive publications and audiovisual entertainment products. China requires foreign firms to use  government- controlled monopolies (distributors) to distribute foreign media products. U.S. - China Publications and Audiovisual Case (Panel 8.12.09) (conclusions). "WTO Report Upholds U.S. Trade Claims against China. " USTR News. (August 12, 2009). Some view China's actions as increasingly nationalistic and protectionist. "WTO Rules Against China's Limit on Imports." New York Times (8.13.09); "Hollywood Upstages Beijing." Wall Street Journal (8.13.09). But it is in China's interest to abide by the global rules of trade and DSU decisions since it is also an active complainant.  "World Trade Victory." Wall Street Journal (8.15.09). China has appealed this ruling on the grounds of "public morals.'  "China Cites 'Morals' in its WTO Appeal."   Wall Street Journal (9.23.09).

  • The U.S. - UBS negotiations over bank secrecy and tax evasion demonstrates the difficult world of multi-jurisdictions governing cross-border global financial transactions. In this case through unilateral national action and then bilateral treaties and cooperation. "U.S.-Swiss Ban-Secrecy Dispute Resolved." Washington Post (8.19.09). 

  • The U.S. has been found  by the AB not to be in compliance with the earlier panel's recommendation concerning its antidumping practice of "zeroing." U.S.-Japan "Zeroing" (AB 8.18.09) (conclusions).

  • The U.S. has lost an arbitration for sanctions in the Brazil - U.S. concerning sugar subsidies.  This potentially allows for "cross retaliation" and restrictions on U.S. intellectual property rights. "U.S. Loses Ruling on Cotton Payouts." Wall Street Journal (9.1.09). Brazil - U.S. (Sugar) (Arbitration 8.31.09) (conclusions).

  • The WTO issued a preliminary panel report concerning European subsidies for the Airbus A380 finding that launch aid was an illegal subsidy.  "WTO Says Aid to Airbus for A380 was Illegal." New York Times (9.5.09).

  • Members of the WTO have decided to resume Doha negotiations. "Doha Talks to Resume." Washington Post (Sept.  4, 2009).

  • President Obama has imposed a tariff surcharge as a safeguard measure on Chinese imported tires (under  §421 of the 1974 Trade Act adopted  pursuant to the US China Relations Act 2000,  legislation concerning China's accession to the WTO in 2001) and in furtherance of the International Trade Commission's ruling.  This is the new administration's first major trade action. China now threatens  to strike back imposing its own restrictions on U.S. imports into China. "China Strikes Back on Trade." Wall Street Journal (September 14, 2009). USITC Determination (June 18, 2009). See generally as to U.S. politics, "A Protectionist President." Wall Street Journal (Sept. 15, 2009). China's legal strategies seems very sophisticated by using countervailing duty claims and requesting WTO consultations so promptly. "China Clever in Trade Dispute." Financial Times (9.15.09).

  • China has appealed the WTO's movie - audiovisual panel-entertainment decision on the grounds of "public morals.'  "China Cites 'Morals' in its WTO Appeal."   Wall Street Journal (9.23.09).

  • The USDOJ has charged the highest number of persons for violation of the Foreign Corrupt Practice Act this year. "Overseas Bribery." Wall Street Journal (10.8.09).

  • The U.S. has requested a panel concerning its complaint against the EU's restrictions on imports of U.S. poultry. "U.S. Requests WTO Panel in Challenge of  EU Restrictions on U.S. Poultry Exports." USTR News Release (October 8, 2009).

  • Canada requested the WTO to establish a panel in its dispute with the U.S. concerning the U.S. "food country-of-original labeling  requirements (COOL) for  import of food products. "Canada Asks WTO."  Wall Street Journal (10.8.09); "Canada Seeks Redress on Food-Labeling Law." New York Times (October 13, 2009). 

  • Two recent articles on India and China show how those countries are leading the global economy out of its recession with increased foreign investment into India and increased exports from China. "India and Foreign Investment." New York Times (10.14.09);  "China Exports Increasing Global Share." New York Times (10.14.09).

  • China is beginning to invest in U.S. assets again. "CNOOC & Gulf of Mexico Oil." Wall Street Journal (10.17.09). Sovereign Wealth Funds are casting their nets across the globe, once again. "State Funds Across the Globe." Financial Times (10.15.09).

  • China has imposed new antidumpoing duties on U.S. imports to China (Nylon).  This demonstrates that China is emulating the U.S. enforcement and is "creeping protectionism" and shows the weakness pf an "enforcement-centered trade policy. "The Cost of Trade "Enforcement." (Editorial)  Wall Street Journal (10.23.09).

  • The EU is again asserting its global antitrust powers concerning the U.S. - European aviation alliance involving American Airlines and British Airways. "Antitrust Threat to Atlantic Air Tie-up." Financial Times (10.26.09).

  • The state of New York has filed an action against Intel under federal antitrust law. "State Accuses Intel in an Antitrust Suit." New York Times (11.5.09).

  • The WTO is now 15 years old and has had 400 cases filed with the DSU. A good review of the data is provided by the WTO. "WTO -- 400 Disputes."  WTO News (11.6.09).

  • The U.S.  and EU have filed a new action against China in the WTO concerning raw materials and there has been a rash of trade actions taken by both China and the U.S. creating new tensions. (Good chart of recent trade issues.) "Beijing Slams Tariffs in Growing Clash." Wall Street Journal (11.7.09).

  • The first Section 421 case (China Tire) doesn't really portend a return to Smooth-Hawley, but if unemployment keeps rising we may see more of these type of actions. "Broken Promises." Financial Times (11.9.09).

  • Lamy, "Global Governance -- Lessons from EU -- Rule of Law." WTO News (Nov. 9, 2009).

  • The EU has objected to the Oracle merger with Sun Microsystems over the issue of its open-source database software. "Deal to Buy Sun Meets Opposition from the EU." Wall Street Journal (11.10.09); "USDOJ Press Release Concerning EU Position on Oracle and Sun." USDOJ News (11.09.09).

  • The DSB has authorized Brazil sanctions in the cotton case against the U.S. "DSB Authorizes Brazil Cotton Countermeasures Against the U.S." WTO News (Nov. 19, 2009).

  • A newer global trade and investment issue emerging has been the purchase of land by foreign countries and investment firms in developing countries for purposes of growing and exporting food to ensure food security, to avoid  future export restrictions in times of shortages. China, Kuwait, Saudi and India have been principal investors. Targets of the investment have been in the Sudan, Ethiopia and Madagascar, among others. "Agro-Imperialism?" New York Times Magazine (11.22.09).

  • "Piecemeal liberalization" and "murky protectionism" has been the result of U.S. focus of bilaterals to the detriment of the WTO. U.S. domestic interest groups are much responsible. There is a need for domestic coalitions of free trade to be more assertive. "U.S. Trade Policy in Flux." (2009) (discussing Clinton, Bush & Obama policies).

  • China has aggressively applied extraterritorially its new antitrust regime concerning mergers and takeovers of Chinese firms, by requiring foreign divestures. "The People's Police (Panasonic Case)." Financial Times (11.30.09).

  • "Global Governance (WTO / IMF), Multilateralism & the Financial Crisis." Financial Times (12.01.09).

  • Sovereign wealth funds have been major investors in U.S. banks during the global financial crisis and now are unwinding their investments with huge profits. "Kuwait Investment Authority Sells $4.1 Billion State in Citi." Wall Street Journal (12.7.09).

  • Director-General Lamy has announced a settlement of the EU Banana dispute concerning the EU banana import regime. This has been in the dispute resolution system of both GATT and the WTO since 1991.  This dispute utilized the "good offices of the Director-General," a procedure rarely used and permitted by DSU Article 3(12).  This  incorporates a 1966 decision of the GATT allowing developing nations in an action against developed countries to request an alternative procedure..  "Lamy Hails Accord Ending Long Running Banana Dispute." WTO News (December 15, 2009); "EU Banana Case Settled." Wall Street Journal (12.16.09).

  • The EU antitrust authorities has settled the "Browser Case" with Microsoft. "Microsoft Case Settled with EU."   Wall Street Journal (December 16, 2009).

  • Credit Suisse has agreed to a $536 million forfeiture for violating the International Emergency Economic Powers Act (IEEPA) in arranging financial transactions with Iran and others in violation of financial trading sanctions.  This is the largest ever under IEEPA.  "Credit Suisse Agrees to Forfeit $536 Million for Violation of IEEPA." USDOJ News (12.16.09).

  • The Obama administration is struggling to balance national security concerns  with foreign investment in U.S. firms.  "Questions on Security Mar Foreign Investments." New York Times (12.18.09).

  • A decision in the Airbus - Boeing Case (against Boeing) has been delayed six months. This would be 10 month gap between this panel report and the earlier one against Airbus by Boeing (decided by a different panel). "Airbus Fears Delay to Boeing Report." Financial Times (12.21.09).

  • The AB has rejected China's appeal and ruled in the favor of the United States in the dispute over import of publications and audiovisual products.   "Appellate Body Rules in U.S. - China Dispute."  WTO News (December 12, 2009). (Full report); "WTO Upholds Ruling Against China (Dismisses Public Morals Defense). " Wall Street Journal (12.21.09).

  • Panel has been established in the action filed by the EU, the U.S. and Mexico against China for restricting export of raw material. "DSB Establishes Panel -- China's Export Restrictions of Raw Material." WTO News (12.21.09).

  • The USTR annual review has been released reviewing the U.S. trade actions this year. USTR Annual Review (2009).

  • The U.S. is about to impose a countervailing duty of subsidized steel from China. "Chinese Slapped in Steel Dispute. "Wall Street Journal (December 31, 2009).

                                                              [2010]

                                                           

                      

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