This is Simon Lester's Typepad Profile.
Join Typepad and start following Simon Lester's activity
Join Now!
Already a member? Sign In
Simon Lester
Florida
Recent Activity
Thanks, Ted. I'm curious about what Lighthizer had in mind here. Maybe it was this.
1 reply
Pedro, Thanks for your comment. I probably should have clarified the context for this post, which was a twitter discussion where someone mentioned the Lincoln quote. I was just using this post as a place to make the text of the Taussig chapter available. But yes, as you point out, Lincoln did preside over high tariffs.
1 reply
Yes, it does have tools that it uses. I'm just thinking of ways to give it additional tools, and steer it explicitly in the direction of using them.
1 reply
I guess what I have in mind here is not an out of control tariff war, but rather one that moves beyond the terms of the Section 232 agreements. The US might impose tariffs based on a "meaningful surge"; Canada and Mexico might disagree that there was such a surge, and therefore retaliate beyond the designated sectors; and then the US might increase its retaliation. But we probably won't get to any of that. Mostly I'm just interested in how the US is pushing international agreements that explicitly provide for unilateral determinations, and avoid neutral adjudication.
1 reply
On the non-violation possibility, when you take into account DSU Article 26, could the complaining party impose retaliation? Article 26 is a bit confusing, but it seems to me that it could make it difficult to pursue retaliation. How do you see the relationship of Article 26 and Articles 21/22?
1 reply
I suppose it depends on what we mean by "escalate." If the US imposed tariffs in a situation when, in the view of Canada and Mexico, imports had not surged "meaningfully beyond historic volumes," would Canada and Mexico restrict their retaliation to the affected sectors?
1 reply
Yes, possibly GATS as well. I'm not sure what the full ranges of products/services affected would be.
1 reply
With internet censorship, I figured they would just ask for a complete exemption. But on data localization, why do they want a full carveout? I would think they could strike a balance here -- allowed under certain conditions, but not used in all cases. It seems like that is where most countries are headed.
1 reply
To clarify, I don't think there is any credible argument for an "emergency in international relations" related to Canada. Rather, the emergency would be some ongoing military conflict somewhere in the world, and the United States would try to tie the steel/aluminum restrictions to the need to have a strong military to deal with that conflict. I think that tying argument would fail, but that's how I see the U.S. arguing it. For Mexico, I guess the United States could argue the "border crisis" is an emergency, but I don't think that is very convincing.
1 reply
To clarify, I would say that there are various "emergencies in international relations" right now -- Syria, Israel/Palestine, the whole Middle East, the South China Sea. The United States could cite to any of these and probably many others. But the steel/aluminum import restrictions would then need some connection to the emergency, and here the U.S. argument would probably fail.
1 reply
As the text is currently written, the Canadian interpretation may be a plausible interpretation, but the provision seems vague to me. Ultimately, how you or I or the Canadians reads it may be less important than how Lighthizer reads it. If USMCA passes, we will find out! If I were drafting a provision designed to implement the Canadian interpretation, I would have suggested something like this: "The roster shall be appointed by consensus. Its term shall last for at least three years. After three years has elapsed, the roster shall remain in effect until the Parties constitute a new roster." An even better approach might have just been not to have a minimum, like this: "The roster shall remain in effect until the Parties constitute a new roster."
1 reply
Thanks! Is that agreement available somewhere? I don't see it in the usual places.
1 reply
Hmm, I'm not sure how that would get at the question I am asking. I'm not thinking about whether commitments apply, but rather how foreign investors are actually treated as compared to domestic investors. And the larger point I am getting at is, what kinds of international investment obligations, if any, are needed for foreign investors?
1 reply
Not that I have any great inside experience here, but my sense is that the current leadership at USTR has a different view of the value of international trade dispute settlement than their predecessors.
1 reply
This is a great resource, thanks!
1 reply
Yes, it says "consultations with contact points." But I'm not sure that is the same as a formal consultations request.
1 reply
Thanks, very helpful! In terms of the formal consultations requests I had in mind, seems like the Bahrain and Guatemala requests are the only ones.
1 reply
If USTR doesn't come forward with some proposals soon, the rest of the membership may have no choice but to look for a way to keep WTO DS functioning, with or without the US. There are a lot of cases in the pipeline and it's frustrating for the parties to see them delayed. I have no idea how this ends!
1 reply
Peter, I understand where you are coming from, and Jennifer probably has similar reservations. The question is, what do we do to save the WTO DS process? If not this, which option do you think is best?
1 reply
In a previous post on this, I suggested that the sole order of business at the first 6 year review should be to delete the sunset clause. That would solve the interpretive dilemma here. ;)
1 reply
Jean, That's interesting, thanks. I considered that possibility at one point, and then talked myself out of it, but maybe you are right that this is what they meant. Congress really needs to clarify what the Trump administration has in mind for the sunset clause -- on this and other issues -- before they sign on to it.
1 reply
Hi Julia, I have no objection to a non-violation case, but the remedy is pretty weak (see DSU Article 26), so even if you win (and it wouldn't necessarily be easy to win), I'm not sure exactly what you would get. I would certainly be interested to see how China would react to such a ruling, though. But I would make sure to bring all the violation claims as well. Simon
1 reply
That's an interesting point. I didn't really compare and contrast the two obligations. It was just that when I saw the case law language about "systematically offsetting," I thought it would apply very well to this situation. But yes, a threat of serious prejudice under Article 5(c) could also be good here! This helps illustrate my point above that there are "many other possible complaints as well."
1 reply
I blogged about the AB report in Indonesia — Iron or Steel Products here: https://worldtradelaw.typepad.com/ielpblog/2018/08/how-to-determine-if-a-measure-constitutes-a-safeguard-measure.html I also discussed it in the comments here: https://worldtradelaw.typepad.com/ielpblog/2018/08/implications-of-indonesiasafeguards-for-us-232-challenges.html It seems to me that the first and third factors described by the panel in India - Iron and Steel Products and the AB in Indonesia — Safeguard on Certain Iron or Steel Products are pretty similar. I wasn't sure what the AB had in mind with its second factor, so we'll have to see what it thinks of the panel's approach in the event of an appeal in India - Iron and Steel Products.
1 reply
I was using chilling effect to refer to an impact on future regulation. As for a remedy for the Section 232 tariffs, I'm skeptical it will have much impact, and anyway a number of governments have already done their rebalancing. But Nicolas can weigh in here if he wants.
1 reply