In response to a long running dispute with the European Union (EU) over subsidies to Airbus, the U.S. Trade Representative (USTR) has proposed additional tariffs on certain products of the EU covering approximately $11 billion in trade. The proposed list covers 317 tariff subheadings and includes fish, cheese, olive oil, wine, leather handbags, textiles, wool
On Friday, April 5th, a World Trade Organization (WTO) panel issued its decision in a landmark dispute between Russia and Ukraine. The dispute, Russia – Measures Concerning Traffic In Transit, marks the first time a WTO panel has been tasked with determining whether it has jurisdiction to review actions taken by a WTO Member to protect its own national security interests.
The dispute was brought by Ukraine in September 2016 after Russia imposed various restrictions preventing Ukraine from using Russian road and rail transit to trade goods destined for Kazakhstan, the Kyrgyz Republic, Mongolia, Tajikistan, Turkmenistan, and Uzbekistan. In defense, Russia claimed that its actions were not subject to WTO review because they constituted actions necessary to protect Russia’s “essential security interests” during an “emergency in international relations” between Russia and Ukraine. Actions taken by a WTO Member during a war or an emergency in international relations are excepted from WTO review pursuant to Article XXI of the General Agreements on Tariff and Trade 1994 (GATT). The Trump Administration has cited Article XXI as exempting from WTO jurisdiction its decision to impose duties on imports of steel and aluminum products pursuant to Section 232 of the Trade Expansion Act of 1962 (Section 232). …
Continue Reading WTO Panel Issues Landmark Decision Regarding Actions Taken to Protect National Security Interests
On Tuesday, U.S. Trade Representative Robert Lighthizer testified before the Senate Finance Committee to discuss a question that is central to the Trump Administration’s trade policy agenda: What is the future of the World Trade Organization (WTO)? As the 25th anniversary of the 1994 creation of the WTO (in its current form) approaches, the Trump Administration has been vocal in its criticism of the WTO’s shortcomings and failure to abide by the text of the agreements as written in 1994. The Administration has pledged, as part of its overall trade policy, to seek critical reforms that will improve and reform the WTO’s functions going forward. And, as Senator Wyden put it, trade issues including WTO challenges are one of the least known and biggest problems facing the United States’ ability to create good paying jobs and to expand our markets.
Ambassador Lighthizer answered questions on a number of topics relating to the WTO and, more generally, current U.S. trade policies:…
Continue Reading Senate Finance Committee Asks USTR Lighthizer: What is the Future of the WTO?
Both the EU and the UK are eager to achieve a Brexit deal. However, with time running short and red lines continuing to be drawn on both sides, a no-deal Brexit scenario remains a possibility. For this reason, both the EU27 and the UK are expediting preparations for a hard Brexit. Absent any temporary arrangements, if the UK leaves the EU without a deal on 29 March 2018, it will become a “third country” EU trading partner overnight. Trade in agri-food between EU-UK would then be governed by World Trade Organization (WTO), EU and UK rules, and food products would no longer move freely throughout the EU.
Agri-food business operators should roll out their contingency measures. Contingency planning for a “hard” Brexit includes making possible revisions to supply chains, buying-ahead, stockpiling, warehousing, relocating food production, transferring import function, re-labelling, obtaining relevant authorizations and certifications, and taking other practical measures to avoid business disruptions. Companies need to ensure proper controls are in place with regard to import and export regulations. …
Continue Reading Impact of a No-Deal Brexit on Agri-Food Business
Last week, a WTO dispute settlement panel ruled that Australia’s plain packaging rules for tobacco products do not violate WTO rules. In April 2012, Honduras requested consultations with Australia at the WTO over Australia’s 2011 law banning logos, trademarks, and other distinctive packaging for tobacco products in favor of uniform-color packages with health-related warnings and images across the front of the packages and brand names printed in small, standardized fonts. Honduras challenged the law under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the WTO Technical Barriers to Trade Agreement, and the national treatment provision of GATT 1994. Similar challenges later brought by the Dominican Republic, Cuba, and Indonesia to Australia’s plain packaging law were consolidated with Honduras’s dispute and ruled upon at the same time. The WTO dispute settlement panel was composed in May 2014.
In its report, issued on June 28, 2018, the WTO panel concluded that Honduras, the Dominican Republic, Cuba, and Indonesia did not demonstrate that Australia’s plain packaging law and related regulations were inconsistent with the various WTO agreement provisions cited. Specifically, the plain packaging measures were not shown to be more restrictive than necessary to achieve a legitimate regulatory objective; to impede the registration, use, or enforcement of trademarks; to mislead with respect to or diminish geographical indications; or to devalue the Cuban Government Warranty Seal otherwise provided on Cuban-origin tobacco products.…
Continue Reading WTO Declines to Find Australia’s Tobacco Product Packaging Restrictions Inconsistent with Trade Rules
The grain industry is reacting to the “temporary” Chinese preliminary antidumping duty of 178.6% on sorghum shipped from the United States, announced April 17, 2018. Reuters reported that Chinese importers of sorghum, a grain used to create ethanol and feed livestock, have asked the government in Beijing to waive the duties. After the duties were announced, nearly two dozen ships carrying American sorghum changed course, opting instead for ports in Japan, Saudi Arabia, the Canary Islands, and the Philippines to mitigate losses. China is now importing relatively large quantities of barley as livestock feed and the Chinese importers who did receive sorghum shipments are selling that grain at an extreme discount in an effort to avoid the duty deposit.
The investigation into U.S. sorghum, initiated in February, found that U.S. exports to China increased over the last several years while prices fell and harmed China’s domestic industry. The National Sorghum Producers, an industry group in the United States, insists that the product is neither dumped nor injurious to the Chinese industry. The National Sorghum Producers also state that they fully cooperated with the Chinese government in the course of the short investigation, at the end of which adverse facts available were applied to result in the high margin. …
Continue Reading Chinese “Dumping” Duties Alter Grain Markets
South Korea announced on Friday that it will appeal to the WTO Appellate Body a panel ruling in favor of Japan’s challenge to South Korea’s ban on imports of Japanese seafood products after the Fukushima nuclear incident, which occurred in 2011. In 2013, South Korea joined several other countries and placed import restrictions on 28…
Last week, South Korea requested consultations with the United States at the WTO, launching a significant dispute that challenges both individual investigations and administrative reviews conducted by the Commerce Department, as well as broader aspects of U.S. antidumping and countervailing duty law. Korea’s broader “as such” challenge targets provisions of U.S. law, including the 2015…
On January 12, 2018, Australia brought a historical first WTO trade dispute against Canada. The request for consultations alleges that the Canadian Government and the Canadian provinces of British Columbia (“B.C.”), Ontario, Quebec and Nova Scotia discriminated against imported Australian wine by maintaining discriminatory trade measures governing the sale of wine. The alleged discriminatory measures include: distribution areas, licensing and sales measures (i.e., product mark-ups), market access and listing policies, and duties and taxes applied at the federal and provincial level. Pursuant to WTO rules, the parties have 60 days to settle the dispute after which time Australia may request adjudication before a WTO panel.
Australian exports of bottled wine to Canada declined by nearly half between 2007 and 2016. Australia Trade Minister Steven Ciobo discussed the request for consultations and Australian wine …
Continue Reading Wine Wars: Australia takes Canada to WTO Alleging Discriminatory Rules Governing Wine Sales
On January 10, 2018, Canada circulated to WTO members a request for consultations challenging several aspects of the United States antidumping and countervailing proceedings. The request for consultation is available on the WTO’s website and can be found here.
In particular, Canada challenges:
- the way in which the U.S. Department of Commerce refunds cash deposits after adverse WTO determinations;
- the United States’ suspension of liquidation of cash deposit requirements when the U.S. Department of Commerce preliminarily determines critical circumstances exist;
- the U.S. Department of Commerce’s treatment of certain export measures by foreign governments in the agency’s countervailing duty proceedings;
- the U.S. Department of Commerce’s calculation of benefits involving the provision of goods for less than adequate remuneration in the agency’s countervailing duty proceedings; and
- the U.S. Department of Commerce’s procedures for collecting evidence in antidumping and countervailing duty investigations.