Trade Law

Views expressed by Alan Yanovich.¹

With the enactment of the U.S. Inflation Reduction Act (IRA) and the announcement of the European Union (EU) Green Deal Industrial Plan, there is now a full-fledged subsidy war between the United States and the European Union. While these subsidies are meant to encourage green technologies, incentivizing firms to produce locally would seem to be an almost as important policy goal. And it is not limited to the U.S. and the EU. Global Trade Alert recently reported that, in 2022, production subsidies accounted for half of all trade-distorting measures, making it the mostly commonly used harmful trade policy measure.¹

At the end of last year, World Trade Organization (WTO) members agreed that the 13th Ministerial Conference (MC13) of the WTO will take place in Abu Dhabi, the capital of the United Arab Emirates (UAE), in February 2024. There is no doubt that the WTO is facing headwinds and is in need of a vigorous push forward. The UAE’s success in transforming itself into a global trade and digital hub and a leader in services trade could serve to drive a successful outcome at MC13.

International trade litigation requires patience. These disputes often span several years and involve multiple redeterminations by the agency whose action is subject to judicial review. The appeal can get even further complicated when the original proceeding becomes entangled with one or more subsequent administrative proceedings. And even if a party prevails on appeal, a victory may become hollow unless the appropriate agencies implement the redetermination in a timely fashion.

At the end of 2018, the U.S. Court of International Trade (CIT) issued an opinion in One World Techs., Inc. v. United States. In that decision, Judge Choe-Groves concluded that U.S. Customs and Border Protection (CBP) improperly excluded from importation one entry of a redesigned garage door opener imported by One World Technologies, Inc. She determined that One World’s redesigned garage door opener did not infringe U.S. Patent 7,161,319, which formed the basis of an exclusion order issued by the U.S. International Trade Commission (ITC) pursuant to Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337), because CBP had misconstrued certain claim terms in that patent. In so doing, Judge Choe-Groves construed the claims of the ’319 patent, an exercise rarely undertaken in prior disputes before the CIT. As a result of her conclusion, Judge Choe-Groves issued an injunction preventing CBP from excluding the entry at issue. Our earlier coverage of that decision provides additional details.

The current news coverage of the North American Free Trade Agreement (NAFTA) negotiations has touched heavily on the tight deadlines set around reaching an agreement. There is, however, a lot of unnecessary confusion—even among those who follow this closely—about what might happen next and what deadlines are triggered once an agreement is reached. To help you understand the process and timeline for approval of a free trade agreement, Akin Gump Strauss Hauer & Feld LLP has created a TPA Timeline to clarify TPA requirements and timing.

On Tuesday, May 23, the Office of the U.S. Trade Representative issued a Federal Register notice asking for public comments on what the negotiating objectives should be for the North American Free Trade Agreement (NAFTA) renegotiation. Written comments are due by Monday, June 12, and there will be a public hearing on Tuesday, June 27. This is an important opportunity for companies to weigh in not only on their priorities in NAFTA, but also on their trade priorities, generally, as the Trump administration has indicated the renegotiated NAFTA will serve as a template for its trade policy objectives going forward. If you need any assistance on commenting, please let us know.

Yesterday morning, the Office of the United States Trade Representative (USTR) formally notified Congress that the administration intends to initiate renegotiations with Mexico and Canada on the North American Free Trade Agreement (NAFTA). The administration is required to submit the notice to ensure that any legislation required to implement an updated agreement can receive fast-track protection under the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (TPA). Under the TPA, the USTR may not enter into formal negotiations until 90 days after this notice is provided to Congress. Thus, NAFTA renegotiations can start on August 16, 2017.