Posts Tagged ‘wto’


11th Annual Dominick L. DiCarlo U.S. Court of International Trade Lecture

Wednesday 12 December, 2012

The John Marshall Law School Center for International Law hosted the 11th Annual Dominick L. DiCarlo U.S. Court of International Trade (CIT) Lecture, A Conversation with Judge Jane A. Restani of the U.S. Court of International Trade (NY) . Judge Restani was appointed to the court by Ronald Reagan in 1983.  Rather than hold a lecture with Q&A @ the end, the organizers opted for a more conversational format where moderator Lawrence M. Friedman, Partner, Barnes Richardson and Colburn (Chicago), simply posed questions to Judge Restani on current topics facing the court, such as anti-dumping laws, countervailing duties, etc.

The hard part about anti-dumping laws is to compare foreign & domestic market prices because many adjustments have to be made.  The US Dept of Commerce wants to calculate an average price & compare it to specific transaction prices.  Transaction prices below the average would be considered dumping, but this case lost @ the World Trade Organization (WTO).  They then compared domestic average prices to foreign average prices,-this investigation in methodology is now under review.  Statutes don’t specify the math.  There is no right methodology-the court of appeals must simply choose.  The agency made a mess by not complying with the WTO & the court of appeals hasn’t helped.  The WTO has no binding affect on these proceedings.  The US can flaunt that, but is subject to retaliation.  The US Trade Representative must make a change, but there is little discussion with the WTO.  How cases are analyzed doesn’t help.  The civil law approach says they should seek 1 meaning.  Some words are interpreted nebulously.  There is an international block which is loathe to fight the WTO.  But the US can’t be bound by the WTO.  In a countervailing duty case vs. China, the WTO borrowed from the CIT.

There are many trade cases with many interested parties, but the best issues to raise with the CIT depends on the rates being charged.  The CIT will not say “You can’t raise an issue.”  It’s important to understand the losers & the standard of review.  The court must weigh a lot of lousy data, so throw away issues you can’t win.  Enough time should be allocated to give the facts, use the record appendix method, & explain the appendices.  Many in customs waste time with facts that don’t matter, but customs cases are all about the law.  There is a classification issue, for example, old cars don’t fit in the harmonized system.  The water bottles carried in a backpack called a “Camelback” could be considered luggage, which is taxed with a high tariff, or as a water bottle, which is taxed with a low tariff.  Some cases from the pre-NAFTA era are still waiting for $ settlements, but you must win now to win in the future.

Most who work with the CIT are bar-educated, so there are only a few bad lawyers who present before this court, as opposed to other circuit courts which are all over the lot.  There are only 400 customs lawyers & only 150 of those practice before the CIT.  Their quality is good & their behavior is good.  There are no breaths of fresh air-you must know the techniques & customs of the CIT.


what’s new @ the WTO?

Wednesday 12 August, 2009

I munched @ lunch to this lecture WTO and International Trade Agreements:  Under Pressure in Light of a Global Economic Downturn @ John Marshall law school by Mark Nguyen of MDN Trade LLC Here’s his presentation WTO-Protectionism-Chicago-June30-09 & the handouts to go along with the presentation WTO-March09-Handouts

Here are some additional points he made not included in his presentation:

  • countries are trying to prevent “job leakage”
  • export restraints are the focus of high-tech companies
  • developed vs. developing country issues are arising
  • the decline in global output is the 1st in 60 years
  • because supply chains are globally integrated, we won’t see a return to the depression of the 1930’s, at least not @ that same level
  • Free Trade Agreements (FTA) have been more effective than the WTO since 1994
  • Dispute settlements are pretty straightforward:  9 months, with 3-4 months for appeals
  • in Europe, computer monitors were equated with TV’s which required higher tariffs
  • the US Fast Track process has expired
  • an FTA of Asia Pacific would include 21 countries
  • Despite no Doha agreement, the WTO still moves forward
  • China produces 60% of the coke required for making steel;  the price is higher outside of China than inside China, which results in an effective subsidy
  • China’s internet filtering is blatant protectionism with a lack of notification & transparency


  • It’s critical to get Russia to join the WTO, but depends on the price of oil
  • Regional Trade Agreements get exceptions on enforcement provisions when they create more trade;  specific quotas can be attacked
  • don’t bring intellectual property to China;  the Chamber of Commerce is looking @ certification;  the government wants developers to turn over source code
  • look to Europe for approaches to carbon emissions;  if they are not part of the treaty, Brazil, China, & India will be penalized-if the US loses, it can lead to retaliation from China.

reform the WTO?

Friday 6 February, 2009

I attended this lecture WTO Regulation of Bilateral Trade Agreements:  A Reform Proposal by Prof. Ralph Folsom of U San Diego law school & adjunct prof & advisory board member of the Center for International Law @ John Marshall Law School.  His talk was based primarily on this paper.  He’s apparently an old-school kind of guy because he had no powerpoint presentation, which is fine by me, but that means I have to summarize what he said.  Here goes:

Folsom set the ground work by saying that by the failure of the Doha Round of the WTO negotiations, bilateral trade agreements (BTA’s-including regional trade agreements) have taken over as the favored international trade pattern.  BTA’s possess advantages over multilateral treaties:

  • they can cover more subjects, i.e. foreign direct investment
  • government procurement can be included (optional in WTO, ex. it’s addressed by NAFTA for Mexico, but not in WTO)
  • labor rights & environmental issues are more often included

“There are now about 400 BTA’s of which we’re aware, but because there are no specific recording requirements to the WTO or any other international governing body, we’re not exactly sure.  That’s part of what’s broken & part his reform proposal.  Only 200 of the ~400 BTA’s are posted by the WTO, which is a regulatory failure. The WTO’s 2006 transparency mechanism apparently hasn’t cut it.  So his revelation is the current system is a failure & suggests we should simply ditch it.  We should then create a transparent mechanism to make all countries post BTA’s or make them subject to mandatory penalties, similar to international dispute settlement mechanisms the WTO invokes in cases of trade sanctions, etc.  Folsom maintains these penalties have teeth & I can see that.

My take:  I’m all for more disclosure & transparency.  Not mentioned in the lecture, but included in his paper, it sounds like he’s proposing an oversight role by the WTO for BTA’s as well.  I’m not a lawyer, but I’m a little wary of more reporting requirements & bouncing mutually-agreed-upon negotiated agreements off of a higher authority.  My assumption is the relevant parties, i.e  the business people who are buying & selling between the included countries, are aware of BTA’s, which is the most important thing.  I’m not completely clear on the benefit of overseeing & reporting BTA’s.  I’d like to know the cost/benefit comparison.


WTO charges against IP protection in China

Tuesday 10 April, 2007

U.S. to file 2 China trade cases
Copyright piracy, sales barriers alleged

Associated Press
Published April 10, 2007

WASHINGTON — The Bush administration announced Monday that it is filing two new trade cases against China over copyright piracy and restrictions on the sale of American movies, music and books in that country.

The action, announced by U.S. Trade Representative Susan Schwab, represented the latest move by the administration to respond to growing political pressure at home to do something about soaring U.S. trade deficits.

Schwab said the U.S. was filing with the World Trade Organization a case that will challenge Beijing’s lax enforcement of violations of copyrights and trademarks on a wide range of products. American companies contend they are losing billions of dollars in sales because of rampant copyright piracy.

The second case will challenge China’s barriers to the sale of U.S.-produced movies, music and books.

“Piracy and counterfeiting levels in China remain unacceptably high,” Schwab said. “Inadequate protection of intellectual-property rights in China costs U.S. firms and workers billions of dollars each year.”

The two new cases represent the latest effort by the administration to increase pressure on China now that Democrats, many highly critical of China’s trade practices, have won control of the House and the Senate.

The U.S. trade deficit set a record for a fifth consecutive year in 2006, at $765.3 billion, with the imbalance with China climbing to $232.5 billion, the highest ever recorded with a single country.

In late March, the administration announced it was imposing penalty tariffs on Chinese glossy paper imports in a case that broke a 23-year precedent that had barred U.S. companies from seeking protection from unfair subsidies provided by the Chinese government.

In February, Schwab announced the administration was bringing a WTO case against China on the government subsidy issue.

The decision to go to the WTO with the two new trade cases will trigger a 60-day consultation period during which trade negotiators from both countries will try to resolve the two disputes. If that fails, WTO hearing panels would be convened. If the U.S. wins the cases, it would be allowed to impose economic sanctions on Chinese products.

In a statement, the Motion Picture Association of America said American industries lost an estimated $2.3 billion in revenue to copyright pirates in China in 2005, with only one out of every 10 DVDs sold in China a legal copy.

m2 comment: many chinese are very poor, & thus would never be able to pay western market prices for copyrighted, trademarked, & patented western goods. Thus the $2.3 billion figure is specious because given the choice of paying full price & not buying at all, many would have to decline since they simply can’t afford it.

“China is, by virtually any and every measure, the world’s largest marketplace for pirated goods,” said the association’s chairman, Dan Glickman.

Mitch Bainwol, chairman of the Recording Industry Association of America, said his industry welcomed the administration’s decision to file the WTO cases.

“The theft of music is pervasive in China and takes place virtually without meaningful consequence,” he said.