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:
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Last Friday, the CPB Netherlands Bureau for Economic Policy Analysis, as part of its World Trade Monitor, reported that global trade flows – the volume of export and imports of goods – was 4.5% higher in 2017 than in 2016.  This is an important finding because it marks the biggest rate of year-in-year expansion since the world began recovering from the global financial crisis, exceeding expectations for the year.  According to the CPB World Trade Monitor, global trade flows grew 24% between January 2010 and December 2017.

Experts, however, are cautiously optimistic about the news and what it could mean for 2018.  Last year, significant uncertainties about critical aspects of the global economy made it difficult to predict the track of trade growth.  The WTO cited unpredictability with respect to government action on monetary, fiscal, and trade policy, and whether trade would be restricted in favor of attempts to address domestic wage stagnation and unemployment. 
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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:

  1. the way in which the U.S. Department of Commerce refunds cash deposits after adverse WTO determinations;
  2. the United States’ suspension of liquidation of cash deposit requirements when the U.S. Department of Commerce preliminarily determines critical circumstances exist;
  3. the U.S. Department of Commerce’s treatment of certain export measures by foreign governments in the agency’s countervailing duty proceedings;
  4. 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
  5. the U.S. Department of Commerce’s procedures for collecting evidence in antidumping and countervailing duty investigations.


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Late last week, the Government of China announced that it would be removing export taxes on many steel products, including wire, rods, bars, billets, and stainless steel plate, as of January 1, 2018.  The move is part of a number of tax changes.  The steel export tax has not prohibited massive volumes of Chinese steel from being shipped to other markets in the face of overwhelming overcapacity at home.  But the absence of the export tax will make it even easier for Chinese steel producers to export steel products around the world.  Notably, China typically adjusts export tax levels on an annual basis as a policy measure to encourage or discourage certain exports.  Thus, this latest decision signals not only the Government of China’s continued active intervention in the market, but its support for even greater exports of Chinese steel, which the world can hardly absorb.
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Last week, the United States filed its first legal analysis of the China non-market economy issue in a dispute at the World Trade Organization brought by China against the European Union.

As we have reported here and here, the question of whether the United States would continue to treat China as an non-market economy (“NME”) for purposes of the Department of Commerce’s antidumping duty analysis was recently decided by the Administration.  In a 200-page memorandum issued at the end of October, Commerce announced that it would continue to apply alternative dumping methodologies with respect to China given the substantial evidence that China continues to be an NME.

That has not stopped China from initiating dispute settlement proceedings at the World Trade Organization (“WTO”) against the European Union (DS516) and the United States (DS515).  In each dispute, China is challenging the WTO member’s applied antidumping duty methodology with respect to imports from China, which China believes are prohibited under a provision of its 2001 Protocol of Accession to the WTO and inconsistent with provisions of the WTO Antidumping Duty Agreement and the General Agreement on Trade and Tariffs (“GATT 1994”). 
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On October 26, 2017, the Department of Commerce  announced the results of an investigation concluding that China is a non-market economy (“NME”) country for purposes of Commerce’s antidumping analysis.  Commerce’s decision continues the long-standing practice of the agency with respect to the antidumping methodology it applies to cases involving China.

Commerce was spurred to review its position on China’s NME status, last addressed in 2006, following the December 11, 2016 change in China’s Protocol of Accession to the World Trade Organization (“WTO”).  By way of background, the WTO Antidumping Agreement permits WTO member countries to impose duties on dumped imports.  Those duties are calculated as either the difference between the imported product’s export price and the comparable home market price, or the difference between the export price and a constructed value based on the product’s cost of production.  Sometimes, however, those home market prices or costs of production do not reflect market forces, particularly in NME countries.
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Last week, Senate Democrats released their “Better Deal on Trade and Jobs” trade policy statement. The seven point platform is aimed at preventing outsourcing of American jobs and increasing American exports.

The white paper describes the policy as putting “workers and small businesses first, ahead of corporate special interests.” It aims to “fundamentally transform” American trade policies to “combat those countries that try to cheat on trade,” singling out both China and Russia.

The plan would greatly increase federal scrutiny of foreign trade and investment by American corporations. Perhaps most significantly, it proposes the creation of an American Jobs Security Council, which would review any potential purchase of an American company by a foreign entity, and would have the authority to stop the deal if it determined that it would have a detrimental economic impact, such as the loss of American jobs.
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The European Union is threatening to impose retaliatory measures on several key export products, including whiskey, orange juice, and dairy products, if President Trump follows through with plans to limit steel imports based on national security concerns.

At a G20 summit in Hamburg on July 7, 2017, European Commission President Jean-Claude Juncker said that the EU is prepared to “react with counter-measures” within “days” if President Trump imposes steel tariffs.  According to the Financial Times, because U.S. does not export much steel to Europe, EU officials are targeting U.S. agriculture products and other “politically sensitive” products with bourbon whiskey, orange juice and dairy at the top of the list.
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According to a White House Statement issued on June 26th, President Donald Trump intends to nominate two important trade positions within the U.S. Department of Commerce (“Commerce”) and the International Trade Commission (“USITC”).

  • Peter B. Davidson, Senior Vice President for Congressional Relations at Verizon Communications, was selected by President Trump to be general counsel of Commerce.  Prior to Verizon, Mr. Davidson served as General Counsel to the United States Trade Representative (“USTR”).  He has also served as Vice President for Congressional Relations at USWEST and Qwest, and General Counsel and Policy Director to the Majority Leader of the House of Representatives.  Mr. Davidson earned his bachelor’s degree at Carleton College, and his law degree from the University of Virginia School of Law.
  • Jason Kearns was selected to be a Commissioner of the USITC for the remainder of a 9 year term expiring December 16, 2024.  Mr. Kearns currently serves as Chief International Trade Counsel (Democratic Staff) to the Committee on Ways and Means in the House of Representatives.  In this position, Mr. Kearns advises Members of Congress on legislation concerning trade and oversight issues involving the USTR and other agencies involved in international trade policy and regulation.  Before that, he served for three years in the Office of the General Counsel to the USTR.  From 2000 through 2003, Mr. Kearns worked in the international trade group of the law firm, WilmerHale.  Kearns has a master’s in public policy from Harvard University’s Kennedy School of Government, a law degree from the University of Pennsylvania and a bachelor’s degree from the University of Denver.


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