Presentation on theme: "A SHORT COURSE IN INTERNATIONAL TRADE LAW"— Presentation transcript:
1A SHORT COURSE IN INTERNATIONAL TRADE LAW Professor David A. GantzUniversity of Arizona,James E. Rogers Collegeof LawHanoi, August 2004Sponsored byThe U.S.-Vietnam Trade Council Education Forum
2I. Introduction Teaching int’l trade law is difficult: Issues are complexToo much material to cover adequately in a 3 hour one semester courseThere are constant important changes from year to yearCase study is required for understanding of WTO’s Appellate Body, even for civil lawyers
3I. Introduction, cont’d.Definition of international trade law (not the same as int’l commercial law)GATT/WTO HistoryBasic Principles – GATT/WTOExceptions to GATT/WTO PrinciplesArt. XXIV, FTAs and the VBTAWTO Accession
4I. Introduction, cont’d. Doha Development Round Rules of Origin and Customs IssuesTrade in Agricultural ProductsTextiles and ClothingTrade Remedies – Dumping, Subsides, SafeguardsWTO Dispute Settlement
5I. Introduction, cont'd. Intellectual Property Trade in Services Standards and Phytosanitary MeasuresTRIMSDeveloping Countries and World Trade
6II. GATT and the WTOWTO, with over 146 members, became effective in 1995WTO replaces GATT, which governed world trade fromMarrakesh Agreement Establishing the WTO has various annexes:GATT and other trade in goods agreementsGeneral Agreement on Trade in ServicesTRIPS AgreementDispute Settlement UnderstandingTrade Policy Review Mechanism
7GATT/WTO, cont’d.Plurilateral Agreements (government contracts, civil aircraft, bovine meat, dairy products)All but Plurilateral Agreement are mandatory for all WTO MembersWTO is an international organizationVoting in theory may be by 2/3 vote, but in practice all decisions are by consensus
8III. Core GATT Principles Unconditional Most Favored Nation Treatment (Art. I)Tariff Bindings (limit on tariff levels on product by product basis) (Art. II)Non-discrimination with regard to internal taxes and rules, regulations, etc. (Art. III)
9III. Core Principles, cont’d. Requirement of transparency for trade-related laws, regulations, rulings, etc. (Art. X)Prohibition against most quantitative restrictions (quotas) (Art. XI)
10IV. Exceptions Balance of payments problems (Arts. XII, XVIII) Special treatment of developing nationsGeneral exceptions (Art. XX)Protection of public moralsNecessary to protect human, animal or plant life or healthRelating to trade in gold or silver
11IV. Exceptions, cont’d.Compliance with customs, competition, intellectual property and fair trade lawsProducts of prison laborProtection of national treasures of historical or archeological valueConservation of exhaustible natural resourcesObligations under commodity agreements
12IV. Exceptions, cont’d.Art. XX “chapeau” limits use of exceptions to situations where there is no arbitrary or unjustifiable discrimination or disguised restriction on international trade.
13IV. Exceptions, cont’d.Actions a Member “considers necessary for the protection of its national security interests.” (Art. XXI)
14V. FTAs, Customs Unions and RTAs Exception to MFN and other GATT obligations for FTAs and Customs Unions (Art. XXIV), with conditions:Covers substantially all trade among membersElimination of barriers within a reasonable payment of timeNo increase in tariff or non-tariff barriers for non-members
15V. FTAs, cont’d.Regional Trade Agreements (RTAs) have proliferated – nearly 300 notified to WTOUS, Mexico, Canada, EU, now Japan and Korea, among those concluding RTAsASEAN – AFTANAFTA – North America
16V. FTAs, cont’d.VBTA is not a “free” trade agreement, but contains some of same elements involving not only trade, but investment, services, transparency, business facilitation, safeguardsVBTA requires important changes in Vietnamese legal system, courts, regulatory process, etc.
17VI. WTO AccessionWTO Rules permit any Member who wishes to negotiate bilateral agreement with prospective membersMost favorable results of those agreements combined in a single WTO accession agreementTwo thirds majority vote required for new members, but to date all accepted by consensus
18VI. WTO AccessionUS, EU, Korea, Japan, China, Australia, etc. realize Vietnam will be a major world trader, and thus are seeking many market-opening concessionsBilateral agreements have been reached to date only with Cuba; nearly 20 more remain
19VI. WTO AccessionIn June, Vietnam significantly improved its accession offer:Average bound tariff reduced from 22% to 18%Greater services market-openingReduction in tariff rate quotas and other exceptionsIf all goes well, Vietnam could become a WTO Member during 2005
20VII. Doha Development Agenda Efforts to Initiate new Round failed in Seattle in 1999, due to concerns of developing members and indecision in US and EUDoha round launched in November 1999, but progress to date has been minimal
21VII. Doha, cont’d.Impasse at Cancun based on following still unresolved issues:Inclusion of Singapore Issues (investment, competition, transparency in government procurement, trade facilitation)Agricultural production and export subsidiesAgricultural market accessExtent to which developing countries will be expected to make new commitments
22VII. Doha, cont’d.“Group of 20” led by Brazil, India, now exercises considerable leadership over many developing countries; unclear whether G-20 will be an effective negotiating force or simply a bar to further progress
23VII. Doha, cont’d.US presidential election, changes in EU Commission (November) and recent accession of 25 new EU members (May) make progress in Doha negotiations unlikely before mid-2005
24VIII. Rules of Origin/Customs Eventual WTO Agreement on Non-Preferential rules will likely use the tariff-shift approachIn substance this is similar to U.S. principle of “substantial transformation”Uniformity in R/O important to facilitate world trade
25VIII. R/O, Customs, cont’d. Preferential rules as in NAFTA and AFTA may use several approachesTariff shiftWholly produced locallyLocal content (50% - 60% in NAFTA, 40% AFTA)Specific component, e.g., color TV picture tube
26VIII. R/O, Customs, cont’d. Harmonized System, used by US, Vietnam and most other nations, provides uniformity of classification for more than 5,000 six digit commodity groupsUniformity facilitates trade and collection of customs duties
27IX. Agricultural TradeFarmers are protected in every nation; highest levels of protection are in EU, US and Japan, but are also found in China, Brazil, India and Mexico, among othersGATT 1947 contained many exceptions for agriculture, and did not effectively regulate agricultural product trade
28IX. Agricultural Trade, Cont’d. Agreement on Agriculture reduces but does not eliminate agriculture subsidiesGreen box (non-distorting) subsidies aren’t significantly restrictedBlue Box (less-trade-distorting) direct payments not tied to production – less restrictedAmber Box (most restricting) tied to production, are reducedExport subsidies are significantly limited
29IX. Agricultural Trade, Cont’d. After expiration of “Peace Clause,” agricultural subsidies are now restricted under SCM AgreementAgricultural subsidies prohibited if they exceed Members’ commitments under AoAOtherwise, actionable under SCM Agreement only if adverse effects are shown.
30X. Textiles and Clothing For many decades, under Multi-Fiber Agreement, developed countries have imposed quotas on textiles and apparel from developing nationsUnder ATC, all such quotas will have been phased out as of January 1, 2005, although high tariffs may remain
31X. Textiles/Clothing, cont’d. Although ATC strongly supported by country Members during Uruguay Round, many are now concernedSince China, India and a few other large producers are no longer subject to quotas, and are highly efficient producers, smaller, less efficient producers may not be able to compete.
32X. Textiles/Clothing, cont’d. Problem is particularly serious for small producers in Caribbean, Central America and Sub-Saharan AfricaVietnam remains subject to U.S. quotas until she becomes a member of WTO, adversely affecting competitive position in world textile market
33XI. Trade Remedies - Safeguards GATT, Art. XIX contains “escape clause” permitting reimposition of tariffs or quotas as a result of increasing imports causing serious injury to domestic producersSuch language found in GATT 1947 and most other trade agreements
34XI. Safeguards, cont’d.Another requirement is “unforeseen circumstances,” unexpected surges as a result of tariff concessions, which is difficult to prove.WTO Agreement on Safeguards provides detailed procedural and substantive requirements for initiation of safeguard measures
35XI. Safeguards, cont’d.Many countries, such as US, exempt FTA partners from global safeguards, although WTO Appellate Body has made this very difficult.Developing country exports are exempted if a country represents under 3% of total exports, or developing countries in the aggregate, under 9%
36XI. Safeguards, cont’d.US – Steel Safeguards confirmed that only increased imports throughout the period of investigation would be sufficient justification for safeguards.FTA members who were major producers– Mexico and Canada– could not be excluded if their imports were covered in the investigation
37XI. Safeguards, cont’d.Difficulties with regard to showing that imports were cause of serious injury, FTA issues, unforeseen circumstances, makes a WTO legal safeguards action by Member nations unlikely.U.S. has special safeguards for “market disruption” for NMEs; lower standard
38XII. Trade Remedies - Dumping Dumping most common of trade remedies; over 100 WTO Members have AD laws, as does VietnamMost common users are US, India, EU, Australia and ArgentinaTo impose AD duty, domestic industry needs to show dumping, and material injury
39XII. Dumping, cont’d.WTO AD Agreement defines dumping as price discrimination between foreign and domestic marketsMore logical focus on sales below production cost, or predatory pricing, is not usedAD laws best seen as a safety valve for freer trade worldwide
40XII. Dumping, cont’d.Normal Value (NV) (usually price in home market) compared to Export Price (EP)If EP is lower than NV, difference is dumping margin, with de minimis level of 2%AD Agreement provides detailed procedural protections and substantive rules for national investigating authorities
41XII. Dumping, cont’d.Under AD Agreement and national laws, various adjustments are to be made to NV and EP so as to provide a “fair comparison.”Adjustment for freight, circumstances of sale, differences in merchandise are designed to result in a fair comparison at the “ex factory” level
42XII. Dumping, cont’d.Non-Market economy countries, such as Vietnam and China, are treated differentlyUS, EU assume that various materials and production costs (input data) are not set by market forces, but through government decisions, and are therefore untrustworthy
43XII. Dumping, cont’d.Instead, Commerce (or the Commission) uses a “surrogate,” normally a market economy country such as India or Bangladesh that is a significant producer of the product, and is at a similar level of developmentIn theory this seems reasonable, but the lack of detailed public data from producers in the surrogate country permit Commerce to make many assumptions or adjustments that may be adverse to NME country producers.
44XII. Dumping, cont’d.China, in its Accession Agreement with the United States, accepted the concept of NME treatment for 15 years!US and China had recent discussions as to how China can become a market economy for AD purposes (like Russia) but it likely will take many years to change
45XII. Dumping, cont’d.Commerce initially determined that Vietnam would be given NME treatment as part of Basa/Catfish, based on:Government intervention in economyNon-convertibility of dongControls on foreign investment and investorsUse of government pricing committeesDiscriminatory treatment of SOEsRestrictions on private land ownershipWeak rule of law
46XII. Dumping, cont’d.While the surrogate approach is used for NV, Vietnamese (and most Chinese), exporters have been given “separate rates” for determining EPThis is based on Commerce determination that the exporters determine selling prices without government direction or interference.
47XII. Dumping, cont’d.In BASA/Catfish, Commerce used input data from India and Bangladesh, and found margins of approximately 36-64%The US International Trade Commission found material injury, based on the significant increases in Vietnamese imports over three years, and lower prices in the U.S. market
48XII. Dumping, cont’d.While small producer countries are exempt from AD injury findings if they have imports which are less than 3% individually or less than 7% in the aggregate (Art. 5.8), Vietnam was responsible for a far larger share of total U.S. imports.
49XII. Dumping, cont’d.In Shrimp, Commerce found preliminary AD margins of 12.11% to 19.60% for most Vietnamese producers, although a group of others received 93.13% marginsA Bangladeshi company was used as the surrogate for most input prices
50XII. Dumping, cont’d.Final AD determination could result in higher or lower margins, after verification in Vietnam and a hearing in WashingtonIf final AD margins are found, likely that USITC will find material injury, as Vietnam source imports (and those from five others, China, Brazil, Ecuador, India, Thailand) are rapidly increasing, while the U.S. domestic producer market share is decreasing.
51XIII. Trade Remedies – Subsidies US doesn’t bring countervailing duty (CVD) actions against NMEsUS may nevertheless bring WTO actions against Vietnam (once Vietnam is a member) in WTO DSB against Vietnam’s prohibited or actionable subsides under Parts II and III of SCM Agreement
52XIII. SubsidiesSubsidy defined (Art. 1 of SCM Agreement) as financial contribution that confers a benefit on recipientActionable or “yellow light” subsidies are domestic subsidies that are “specific” and cause injury, “nullification or impairment” or serious prejudice. (Arts. 5,6)
53XIII. SubsidiesExport (“Red Light”) subsidies are prohibited under Art. 3 except for least developed developing countries.Certain subsidies (Art. 8) were from specifically excluded; “Green Light” subsidies were certain environmental, regional and R&D subsidies.
54XIII. SubsidiesDeveloping countries, including Vietnam once Vietnam is a member and no longer treated as an NME, receive certain benefits:Excluded if their exports are 4% or less of import value, 9% or less in aggregate2% de minimis level instead of 1%Grace periods for export subsidies (now expired)
55XIV. WTO Dispute Settlement WTO arguably most successful international dispute settlement mechanism in world history, under WTO’s Dispute Settlement Understanding (DSU)309 cases filed as of March 2004, with 77 adopted panel or Appellate Body Reports, at least 43 settled cases, most of rest are pending or inactive
56XIV. WTO Disputes, cont’d. Both developed countries and developing nations have been claimants and respondents (66% to 33% more or less)Process under direction of Dispute Settlement Body (DSB) contemplates mandatory consultations, option of conciliation, and then binding WTO panel process
57XIV. WTO Disputes, cont’d. Prior to 1995 GATT dispute settlement was unsatisfactory. New system makes major improvements:Strict time limits for cases, so serious delays are rareAppellate Body (AB) reviews legal issues in interest of consistencyPanel/AB decisions are automatically adopted in absence of consensus not to adopt (never to date)
58XIV. WTO Disputes, cont’d. Panelists are chosen from Member rosters, government or private persons with trade expertise, not nationals of the disputing partiesPanel accepts briefs, holds one or more hearings, renders interim and then a final decision, usually within about 12 months
59XIV. WTO Disputes, cont’d. Panel decision may be appealed on issues of law only to AB; about 2/3 of cases go to ABAB is standing group of seven members chosen for four year (once renewable) termsAB decisions are usually based on strict textual reading of covered agreements, following VCLT Arts for interpretation
60XIV. WTO Disputes, cont’d. AB process almost always concluded in 3 monthsDSB normally adopts decision within a month or lessThus, total DSB process takes months in normal circumstances
61XIV. WTO Disputes, cont’d. Losing Member has three choices:Comply with DSB decision (recommended)Negotiate compensation with prevailing partyAccept retaliation (trade sanctions through higher tariffs) from prevailing Member, as approved by DSB
62XIV. WTO Disputes, cont’d. Implementation has been the rule, but there have been exceptions resulting in trade sanctions:EU – Growth HormonesEU – BananasUS – 1916 Antidumping ActUS – Byrd AmendmentUS – Foreign Sales Corporations
63XIV. WTO Disputes, cont’d. Problems with DSB include:Difficulties for small countries to use trade sanctions against large countriesLack of transparency of panel/AB processCosts of litigation before DSBTreatment of non-member (NGO) briefsInability of WTO Members to effectively supervise AB because of consensus voting requirements
64XV. Intellectual Property TRIPS Agreement is comprehensive treatment of IP issuesTRIPS initially was favored by developed nations, who are highly competitive in high technology exportsTRIPS opposed by developing world, due to enforcement problems and concerns over pharmaceutical products
65XV. TRIPS, cont’d. Major elements of TRIPS: National treatment Obligatory accession to IP treatiesMinimum standards for registration of patents, trademarks, etc.Minimum standards for local enforcement against piracy, including criminal penaltiesBinding WTO dispute settlement
66XV. TRIPS, cont’d.Developing countries received special grace periods for TRIPS implementation:Until 2000 for most developing countriesUntil 2005 for least developed countries
67XV. TRIPS, cont’d.US 301 and Special 301 remedies– used largely against IP violations– arguably aren’t really necessary nowUS has option of seeking enforcement of IP/TRIPS rules in DSB, and imposing sanctions if responding Member does not complyFor not WTO members, such as Vietnam, Section 301 actions are a serious risk
68XV. TRIPS, cont’d.Section 337 mechanism– used to bar entry of goods to US that violate a US patent– still under useLaw requires an extensive and costly administrative proceeding before USITCPrevailing party can obtain exclusion order, or cease and desist order
69XVI. General Agreement on Trade in Services Objective of GATS is to apply GATT principles for trade in goods to trade in servicesArea is of major importance to US, EU, Japan, Canada, because they are more competitive in services worldwide than in manufacturing.
70XVI. GATS, cont’d. GATS has broad but not universal coverage: MFN treatment is completeTransparency is requiredNational treatment depends on individual Member schedulesDegree of market access can be limited in schedules, e.g., 49% ownership for foreign banks
71XVI. GATS, cont’d.Financial services negotiations completed in Dec. 1997; 104 Members made at least some market opening commitments, representing 95% of trade in financial servicesCommitments generally reduce regulatory requirements, grandfather existing operations
72XVI. GATS, cont’d.US GATS obligations are incorporated by reference in VBTATelecommunications services negotiations concluded in Feb. 1997; 69 governments made commitments; again, 95% of global telecommunications market is covered.
73XVI. GATS, cont’d.Negotiations are continuing to achieve “progressively higher level of liberalization” as specified in GATS, art. XIX:1Significant progress awaits success of Doha Round in other areas.
74XVII. Standards and Sanitary/Phytosanitary Measures Technical Barriers to Trade (TBT) Agreement designed to preserve Members’ ability to implement standards, without their unjustified use to restrict tradeIn most instances, national standards are to be based on agreed international standards.
75XVII. TBT/SPS, cont’d. Disagreements subject to WTO dispute settlement SPS Agreement deals with protection of “human, animal and plant life or health from risks” of pests, diseases, additives, etc.National measures must meet these health related goals, avoid protectionism
76XVIII. Trade-Related Investment Measures TRIMs Agreement is limited, compared to bilateral investment treaties and similar comprehensive agreementsEffectively applies only to “performance requirements” and imposes certain transparency requirements
77XVIII. TRIMS, cont’d.Examples of prohibited performance requirements (TRIMS Annex) include:requirements to use domestic parts and components for local manufacturing, over imported materialsPermitting export volumes based on the volume of local production
78XIX. Developing Countries and World Trade Special treatment under the WTO is given to developing countries:Arts. XXXVI-XXXVII of GATT, “Trade and Development”Higher de minimis levels under AD Agreement, SCM Agreement, Safeguards Agreement“Enabling Clause” permitting discrimination for Generalized System of Preferences, AGOA, etc.
79XIX. Developing Countries, cont’d. Doha Development Agenda may bring “special and differential treatment” for developing countries, if and when negotiations are concluded.