These slides were prepared by Mr Stewart for his presentation at WITA’s “The Trade Law Toolbox” event on March 23, 2017. The event looked at what we might expect to see from the Trump Administration’s enforcement agenda, and the impact that might have on U.S. jobs, American consumers, and the global trading system.
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 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).
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.