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LATE-STAGE TRUMP ADMINISTRATION ACTION BANS TRANSACTIONS IN PUBLICLY TRADED SECURITIES OF CHINESE MILITARY COMPANIES

traded

LATE-STAGE TRUMP ADMINISTRATION ACTION BANS TRANSACTIONS IN PUBLICLY TRADED SECURITIES OF CHINESE MILITARY COMPANIES

On November 12, 2020, President Trump issued an executive order (Order) that effectively prohibits US persons from transacting in publicly traded securities of Chinese firms determined by the US government to be owned or controlled by the Chinese military. The ban goes into effect January 11, 2021.

This action, which may foreshadow further tough measures against China in the waning days of the Trump Administration, is one of the first cases where Chinese access to capital markets has been limited for policy reasons. At this writing, the potential impact of this action on capital markets or US investors remains uncertain.

Authority and Rationale. The President issued the Order pursuant to his authority under the International Emergency Economic Powers Act (IEEPA) and the National Emergencies Act. Under IEEPA, upon the declaration of an international economic emergency, the President has the authority to regulate or prohibit a broad range of transactions subject to US jurisdiction.

The Order follows from a number of recent Trump Administration actions taken to effectively disengage from Chinese firms that support the Chinese military, including additional export control restrictions on Chinese end uses and end-users as well as Chinese firms assisting the Chinese military in its incursion into, and development and militarization of, artificial islands within the South China Sea. Notably, of direct relevance here, the Department of Defense, pursuant to Section 1237 of the National Defense Authorization Act for Fiscal Year 1999, recently designated 31 Chinese companies “engaged in providing commercial services, manufacturing, producing, or exporting” as “owned or controlled by, or affiliated with” the People’s Liberation Army (PLA) (DoD List). These companies are each considered to be a “Communist Chinese military company” according to the Order.

Building on these actions, the Order states that China is “increasingly exploiting United States capital to resource and to enable the development and modernization of its military, intelligence, and security apparatuses, which continues to allow the [China] to directly threaten the United States…” As Robert C. O’Brien, the national security adviser to President Trump, said, the action “serves to protect American investors from unintentionally providing capital that goes to enhancing the capabilities of the People’s Liberation Army and People’s Republic of China intelligence services.”

The Prohibition. Specifically, beginning on January 11, 2021, US persons are prohibited from transacting in the publically traded securities, or any securities that are derivative of, or are designed to provide investment exposure to such securities, of any Chinese military company designated on the DoD List now or in the future. Through November 11, 2021, trades that only divest in such securities that a US person held as of January 11, 2021 are permitted.

The prohibition also extends to subsidiaries of an entity already designated on the DoD List if the subsidiaries have also been so designated. US persons would be prohibited from such investment transactions 60 days after additional Chinese companies are designated and would have 365 days to divest of shares held on that date.

By its terms, the Order, which is broad in scope, appears to apply not only to direct purchases of publicly traded securities but purchases by US persons of shares in investment funds that hold public securities in such companies. In this regard, there is no exemption for such indirect purchases in the Order and it applies to purchases designed to “provide investment exposure to such securities” – the purchase of shares in a diversified fund which hold shares in such Chinese military companies might be considered to “provide investment exposure” to those securities. This conclusion also is supported by the anti-circumvention provision in the Order, which bars US persons from actions that evade or avoid the effect of the Order.

Similarly, the Order also appears to apply to transactions by US persons involving public securities in such Chinese military firms traded on foreign as well as US exchanges. Whether Treasury, which is charged with implementing the Order, later exempts or limits transactions through investment funds or held on foreign exchanges from the scope of the Order remains to be seen.

The Order does permit US persons to engage in transactions to divest from such securities by certain deadlines. Moreover, the Order also prohibits any transaction by a US person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate the Order.

What Chinese Firms Securities are the Subject of the Rule? As noted above, the Order is directly applicable to transactions in publicly traded securities of Chinese companies on the DOD List. As such, if a company on the DOD List is not publically traded, it would apparently not be affected. During the summer of 2020, the DOD designated a total of 31 Chinese companies for the DOD List, including China Telecommunication Corp. and China Mobil Communications, both of which are listed on the New York Stock Exchange (NYSE), and China North Industries Group Corporation (Norinco Group), among others.

Why was this Order issued now? On one level, this Order is a continuation of and consistent with recent Administration actions with respect to Chinese military companies. Beyond that, with a change in administrations around the corner, it is possible the Trump Administration is trying to lock in a strong policy stance against China in this area. Of course, since the Order is administrative in nature, President-elect Biden, upon taking office, could rescind it or limit its scope. However, the Trump Administration may be taking the view that the incoming Administration would be reluctant to do that in the context of recent US-China relations and domestic politics.

This article originally appeared on the Eversheds Sutherland blog

lobsters

LOBSTERS ARE A PRAWN IN THE TRADE WARS

Lobster Trap

TradeVistas has named the lobster the “2020 person of the year” in international trade. It’s a well-deserved honor. The lobster is at the center of a trade war that will go down as one of the most compelling cases of the futility of tariff politics.

American lobster and lobster fishers got caught in a trade war being fought on multiple fronts. The United States is battling China on one major front and the European Union (EU) on another, but – as is typical in trade wars – it’s lobster production in another country that’s winning the war. In this case, Canada.

If that weren’t enough, tariffs are the root cause of the trade war, but not in the way you might think. China’s tariffs on U.S. lobsters are in retaliation for President Trump’s China tariffs over intellectual property. The EU didn’t raise its tariffs on U.S. lobster, but rather lowered them on Canadian ones as part of their free trade agreement. In other words, U.S. lobsters were never meant to be the target of either Chinese or EU protectionism.

Trade Person of the Year

Just a Prawn in the Trade Game

How the lobster trade war started isn’t nearly as interesting as the efforts to stop it. The Trump administration has tried to restore market access for American lobster but were outmaneuvered in part through a trade liberalizing measure by China.

Start with China, which hit American lobsters with a 25 percent tariff when President Trump rolled out his China tariffs under Section 301. This tariff hike hurt, but then China moved to lower its lobster tariff at the World Trade Organization (WTO), and this hurt even more. In particular, China slashed its most-favored-nation (MFN) tariff to 7 percent while imposing retaliatory tariffs on U.S. lobster of as much as 40 percent. American lobsters were effectively priced out of the market.

President Trump responded with an Executive order instructing the United States Trade Representative to monitor Chinese imports of lobsters. China’s Phase 1 purchase commitments in the US-China trade deal were to be tracked and “appropriate action” to be taken if China fell short. But these purchase commitments are hard for China to deliver on given the extra import duties on American lobsters. The data speak for themselves: since 2018, U.S. lobster exports to China have fallen by nearly two-thirds.

The irony is that things would be worse were it not for China’s rising trade tensions with Australia, another key supplier of lobsters. Australian lobsters have enjoyed the benefits of zero tariffs under the China-Australia free trade agreement since 2015.

Lobster X to China

Shellfish Trade Liberalization

Then there’s Europe. This front of the lobster trade war is especially interesting because it defies convention. The EU didn’t wage a protectionist campaign against the United States. Instead, since 2017, it has had free trade with Canada. The Comprehensive Economic and Trade Agreement (CETA) zeroed out tariffs on Canadian lobsters, leaving their American seafood brethren 8 percent more costly, since U.S. exporters must pay Europe’s MFN rate. In other words, the penalty in the marketplace isn’t because Europe is cheating, but because the United States is falling behind in the race to sign preferential trade agreements.

Back in 2019, Washington had asked Brussels for a deal to offset Canada’s advantage in lobster tariffs. The EU said no, insisting this would violate MFN. Then, this past summer, the EU agreed to zero out it’s lobster tariffs on an MFN basis, retroactive to August 1, in exchange for the United States reducing its tariffs on certain items by 50 percent. This ad hoc approach to trade liberalization, touted as the first tariff cuts in US-EU trade in 20 years, looked like it had plugged the hole. But then came decisions in a longstanding WTO dispute between Boeing and Airbus.

Out of the Blue Sky into the Sea

After more than a decade of WTO litigation, the United States and Europe were both authorized to retaliate. The United States struck first, imposing 15-25 percent tariffs on European food and drink, among other items, up to a maximum of $US7.5 billion. Europe’s authorization was postponed due to COVID-19, but came through this fall, up to a maximum of $US4 billion.

The EU’s original hit list, drawn up to $US25 billion, had included six tariff lines covering frozen and live lobsters. But this week, to the surprise of many, Europe’s revised hit list, redrawn to $US4 billion, spared lobsters entirely. Other seafood was hit, including salmon. But the August deal to walk back the tariff differential caused by CETA had ironically shielded American exporters from WTO-authorized retaliation on civil aircraft. If that doesn’t say it all.

Lobster X to EU

Clawing Back to Normal?

Things may change. A failure to negotiate a US-EU deal on Boeing-Airbus could see Europe yet impose tariffs on American lobsters. But even if that doesn’t happen, the impact of the original 8 percent tariff differential, CETA versus MFN, has been shocking enough.

In 2016, a year before the debut of CETA, U.S. exports of lobsters to Europe were valued at US$152.2 million. In 2019, they stood at US$57.8 million. Through the first nine months of 2020, U.S. exports were valued at US$14.3 million. With these figures in mind, imagine what a 15-25 percent retaliatory tariff would do.

U.S. trade policy has punished the lobster industry for years. Lobster fishermen should be included in the agricultural relief programs enacted by Congress. The takeaway for politicians is that no one set out to wage the lobster trade wars and no one can solve them with more tariffs.

The lobster, as the “person of the year” for 2020, reminds us that freer trade always puts the lie to tariff politics.

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marc busch

Marc L. Busch is the Karl F. Landegger Professor of International Business Diplomacy at the Walsh School of Foreign Service, Georgetown University, a nonresident Senior Fellow at the Atlantic Council, and host of the podcast TradeCraft.

Export Control Law

How China’s New Export Control Law May Impact Your Business

On October 17, the Standing Committee of the 13th National People’s Congress of the People’s Republic of China adopted the Export Control Law of the People’s Republic of China (Export Control Law). The new law becomes effective on December 1, 2020. The Export Control Law comprises 5 chapters and 49 articles. It creates a comprehensive and unified export control regime that regulates the export of goods, technologies, and services that impact China’s national security.

Scope of Applicability and Targeted Parties

The Export Control Law applies to the export of dual-use items, military products, nuclear materials, and other goods, technologies, services, and items that are related to the protection of national security and performance of international obligations. (Controlled Items). Under the new law, the Chinese government will take prohibitive or restrictive measures on the transfer of Controlled Items from the territory of the People’s Republic of China to overseas, and on the provision of controlled items by any citizen or incorporated or non-incorporated organization of the People’s Republic of China to any foreign organization or individual. Furthermore, the Export Control Law will apply to the transit, transshipment, through transportation or re-export of controlled items, or the export of controlled items from any bonded areas, export processing zones or other special customs supervision zones or export supervised warehouses, bonded logistics centers or other bonded supervision premises to overseas.

China will apply the Export Control Law extraterritorially which means that the law will impact any person or entity, in or outside the normal territorial boundaries of China, dealing with the Controlled Items. Furthermore, the Export Control Law specifically prohibits any person or entity from providing any agency, freight, delivery, customs clearance, third-party e-commerce trading platform, financial or other services to any exporter engaged in any violation of export control regulations.

Export Control Measures and Licensing

The Export Control Law authorizes the State Council and the Central Military Commission (Authorities) to take measures and to enforce the new law. The key measures promulgated by the Export Control Law include:

-Export Control Lists. The Authorities shall establish and publish export control lists for the export of Controlled Items (Export Control Lists). Meanwhile, the Authorities are allowed to designate any goods, technologies, or services outside the Export Control Lists as temporarily controlled items (Temporarily Controlled Items) for up to two years.

-Under Article 11 of the Export Control Law, exporters in the business of exporting Controlled Items shall apply for special business qualification.

-Under Article 12 of the Export Control Law, in order to export any Controlled Item on an Export Control List or any Temporarily Controlled Items, exporters shall apply to the Authorities for a license. Furthermore, any exporter who knows or should know, or is notified by the Authorities that any goods, technologies, and services 1) endanger national security and interests; 2) may be used to design, develop, produce or utilize any weapon of mass destruction or its delivery vehicle; or 3) may potentially be used for terrorist purposes must apply for a license even if such goods, technologies, and services are not Controlled Items or Temporarily Controlled Items. The Authorities will approve or reject the issuance of license based on the following considerations: national security and interest; international obligations and commitments to foreign parties; type of export; the degree of sensitivity of the controlled item; export destination country or region; the end-user and end-use; relevant credit records of the exporter; and other factors as prescribed in laws or administrative regulations.

-End-User and End-Use Control. Articles 16 and 17 of the Export Control Law stipulate that exporters shall submit relevant documents and information proving the end-user and end-use to the Authorities and the Authorities shall establish a risk management system for end-users and end uses of Controlled Items.

-Under Article 18 of the Export Control Law, the Authorities shall establish controlled party lists (Blacklists) including importers and end-users that: 1) breach the law and regulations in connection with end-users or end uses; 2) endanger the national security; or 3) use any Controlled Items for any terrorist purpose. Once importers and end-users are included in the Blacklists, exporters are prohibited from transacting business with such importers and end-users. An importer or end-user on the Blacklists may apply with the Authorities to be delisted from the Blacklists if any of the circumstances described above no longer exist.

-The Authorities may restrict or prohibit the export of any Controlled Item to any specified destination country or region or to any specified organization or individual.

Penalties

Any person or entity violating the Export Control Law will be subject to administrative penalties and criminal penalties, including but not limited to warning, confiscation of products, fines, cancellation of an export license and imprisonment.

Impact on U.S. Companies

Due to the extraterritorial character of the new law, the Export Control Law will impact not only Chinese domestic companies in China but also foreign businesses located outside of China. However, like other Chinese laws, one notable characteristic of the Export Control Law is the vagueness inherent in the wording. For example, the new law does not clearly define what constitutes the provision of controlled items (commonly known as deemed exports). We expect that more specific implementing regulations and interpretations in connection with the Export Control Law will be published by the Authorities in the near future. Nevertheless, any U.S. business dealing with China should establish an internal trade compliance program to comply with China’s new export control regulations.

We have identified the following steps as critical and essential for an effective trade compliance program under the Export Control Law. These steps provide a basis and foundation for the compliance program but do not constitute an exhaustive list.

-Companies should utilize tools and services to constantly screen their goods, services and technologies coming from China, as well as their business partners, suppliers, customers, agents, end-users and other business counterparties (Chinese or non-Chinese) in order to make sure that such entities or persons are not subject to any trade sanction or restriction in China.

-A key in determining whether an export license is needed from the Authorities is finding out if any good, service or technology that companies intend to export falls under any existing Export Control Lists or the category of Temporarily Controlled Items published by the Authorities. Companies should hire qualified international trade attorneys with knowledge of Chinese export control regulations to have technical understandings of the items they import from China; to be familiar with the structures and contents of the Export Control Lists and Temporarily Controlled Items published by the Authorities; and to determine whether or not any authorization is required to export from China. Companies should closely monitor the Export Control Lists, Blacklists and other sanction lists published and updated by the Chinese authorities.

-Companies should design training programs together with international trade attorneys with knowledge of Chinese export control regulations and provide such training to their employees. A good training program should provide job-specific knowledge and communicate the responsibility of each employee dealing with Chinese business.

-Risk Management. Companies should hire qualified international trade attorneys with knowledge of Chinese export control regulations to identify the risks early on in order to assist companies in finding solutions to mitigate such risks. Furthermore, due to the rapid development of Chinese export control and trade sanction regime, companies should work closely with the attorneys to make proper adjustments and prepare for the new changes.

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Frank Xue, John Scannapieco and Alan Enslen are attorneys at Baker Donelson and members of the firm’s Global Business Team.

exports

2020 is Ending: Will Phase One Deal Exports Hit the Mark?

You may have heard about soybeans lately. After a tumultuous year, the crop’s futures surged above $10.70 in October, in large part because of sales to China. The world’s second-largest economy bought more than 17 million tons of soybeans in the current marketing year, according to the Department of Agriculture, surpassing both 2019 and 2018 figures. This buying frenzy pushed prices to a two-year high.

Some of it can be attributed to phase one trade deal between the world’s two largest economies. In January, the United States agreed to lower tariffs on $120 billion worth of Chinese goods. In exchange, China agreed to beef up its imports by $200 billion above 2017 levels over a two year period.

The commitment included soybeans, but it extended to other products too. China committed to importing an additional $77 billion in 2020, made up of $12.5 billion in agricultural products, $32.9 billion in manufactured goods, $18.5 billion in energy products, and $12.8 billion in services. In 2021, that number will increase to $123 billion.

So how are actual exports stacking up? Will China hit those goals this year?

‘The answer is no,’ says Dr. Chad Brown, a Senior Fellow at the Peterson Institute for International Economics. ‘The agreement itself is written to have an overall target and four sector-specific targets – agriculture, manufacturing, energy, and services. There’s a chance we could get there for agriculture, but not for energy or manufacturing.’

According to the Peterson Institute’s US-China Phase One Tracker, China is behind on purchases in each of these categories. By the end of the third quarter, the country imported $65.9 billion worth of goods. In order to reach the 2020 target, China would have to purchase another $110 billion in the last three months of the year. Forces outside of trade policies are making that difficult or impossible.

Agriculture has the most robust sales so far. Corn and pork exports both exceeded targets for the year, and cotton is on track to meet its goal. But purchases of other products, like wheat and sorghum, are nowhere near their target numbers. Even soybean sales are below target, in spite of the rally this fall. It spells trouble for agriculture exports overall. ‘You’re not going to make up lost soybean sales with pork or lobster or any of that, we just don’t sell nearly enough of that other stuff,’ Brown explains.

Sadly, manufacturing is much further behind. While PPE and semiconductor sales were healthy, automotive and aerospace products (typically some of the largest exports to China by dollar amount) were nowhere close. ‘Before the trade war, China was the second-largest export market for American vehicles, after Canada. Now, tariffs imposed on imports from China made autos more expensive. If you are making a car in the United States, it suddenly costs a lot more to do so,’ says Brown.

By the end of September, auto products had only reached a quarter of their goal. Chinese aircraft imports were little more than 10% of the pledged amount for 2020.

Energy commitments are farthest off the mark. This year, China imported $5.9 billion worth of products from the United States. That’s more than in 2017, but not ‘$200 billion commitment’ more. At $4.4 billion, crude oil purchases are at about half of where they should be to reach their goal. Meanwhile, coal and refined energy are nowhere close. As Dr. Brown explains, the commitments were made in dollar amounts, and as we are all painfully aware, oil prices have been extremely unstable this year. ‘You could pull all the oil out of Texas that exists, but if the price is either zero or negative, you’re not going to make any progress towards these purchase commitments.’

These commitment levels would have been a stretch during a typical year. But of course, 2020 has been anything but typical. As it stands, no United States industry is likely to reach its goals this year, and in 2021, the gap will only widen.

trade uncertainty

A WORLD OF TRADE UNCERTAINTY

The U.S.-China trade war and Brexit have generated quantifiable uncertainty in the marketplace, but the impact of those events is being eclipsed by the uncertainty generated by the global pandemic.

Taking an Economic Pulse

If you search the Internet for the term “economic uncertainty” or close variations, you’d find what you already know just living through the current times. It’s the default word to describe the uptick in political and trade tensions and in the precarious health of the national economy as well as our personal economic lives.

Even prior to COVID-19, the U.S.-China trade war and Brexit — to tick off current major stressors — Stanford economist Nicholas Bloom, along with his colleagues Scott Baker from Northwestern University and Steven Davis of the Booth School of Business at the University of Chicago, sought to quantify the impact of uncertainty and its impact on business, consumer and policy decisions and vice versa.

Rising levels of political and policy uncertainty are perceived to have a dampening effect on commercial investments, hiring, and economic growth, and appear to be reflected in stock market volatility. Policy uncertainty – including uncertainty in trade policies – doesn’t only manifest as risk aversion by companies, it may effectively raise the cost of capital for investing. Companies may freeze hiring and begin to rely on attrition to thin their employment ranks or begin layoffs in anticipation of slower growth. This behavior in turn may diminish the returns from government stimulus spending, itself designed to induce firm investments by offsetting some of their risk. Stimulus works better if policy and economic uncertainties are reduced.

“Uncertainty” is often described as the intangible or “X factor” in economic forecasts. Bloom and his colleagues wanted to find out whether uncertainty is more tangible and evident than we think.

Stress Testing

Bloom, Baker and Davis constructed an index to measure policy-related economic uncertainty. They used data from search results from newspaper coverage by 10 large publications including the Miami HeraldChicago Tribune and Dallas Morning News, looking for mentions of economic uncertainty within certain parameters. Their work included a measure of fiscal uncertainty as represented by the number of federal tax code provisions set to expire in future years and drew on disagreements among economic forecasters as a proxy for uncertainty.

From the Headlines

An “Echo” Report

First, some caveats:

Newspaper coverage is of course dependent upon the reporting choices made by editors at these papers and weighed against what else is driving the news of the day that may eclipse trade policy. The media mirrors uncertainty it observes and may also generate uncertainty through its own reporting.

And while the stock market has shown patterns associated with political elections, the market doesn’t make significant swings in close proximity to political elections. Politicians like to suggest that party majorities across government is good for the markets. But it would appear that political gridlock offers more stability and is considered more “market friendly” than when one political party has both houses of Congress and the White House.

That said, the Economic Policy Uncertainty index (EPU) created by Bloom and his colleagues maps the impact of “uncertainty” such that we can see clear stock market volatility associated with other types of major political events and policy developments – most recently, flare-ups in the U.S.-China trade dispute and the unfolding of Brexit.

EPU Index Based on the News

The impacts of uncertainty generated by the global pandemic are clearly much higher than the trade uncertainty associated with the U.S.-China trade war and Brexit.

Furthermore, when comparing key words associated with the four different categories of health, fiscal, monetary and trade policy, trade policy uncertainty had been the highest among the four with a spike in 2019, but it is now low and the lowest among these four – again, due to overriding concerns driven by the pandemic.

Bloom has cautioned that trade uncertainty as a driver may have receded in comparison with other concerns. However, the open-ended nature of the current U.S.-China trade conflict and the looming Brexit deadlines mean that trade uncertainty may be more of a sleeping than a slayed giant.

Trade Policy Component of Uncertainty

In general, Bloom, Baker and Davis find that, as measured by the EPU index, current levels of economic policy uncertainty are at “extremely elevated levels.” Since 2008, economic policy uncertainty averaged about twice the level of the previous 23 years.

Pile on the Social Anxiety

Bloom, Baker and Davis have also extracted Twitter data on economic uncertainty and compared their findings with the results reflected in the EPU index. Twitter chatter does reflect much of the same heightened sense of anxiety over the uncertainty of Brexit and U.S.-China trade tensions, but the levels of anxiety generally track lower. This could be largely attributed to the sheer breadth and inconsistency of posts by the millions of people tweeting. It’s hard to find the signal in all that considerable and often frivolous noise.

From 9/11 to SARS to El Niño: An Entire World of Uncertainty

In a broadening of this approach to tracking events and impacts associated with economic uncertainty, Nick Bloom has worked with economists Hites Ahir and Davide Furceri of the IMF to develop the World Uncertainty Index (WUI). They used a series of regular country reports produced by the Economic Intelligence Unit as basis for quantifying references to economic uncertainty across 143 countries.

World Uncertainty Index Global Average

On a global basis over the last two decades, the WUI shows spikes around the 9/11 attacks, the SARS outbreak, the second Gulf War, the Lehman Brothers failure, the Euro debt crisis, El Niño, the Europe border-control crisis, the UK’s referendum vote in favor of Brexit, the 2016 U.S. presidential election and recent U.S.-China trade tensions. The WUI tends to rise closer to political elections – like the consequential one in two weeks. The authors point out that the index captures uncertainty created by specific near-term events but also long-term concerns such as tensions between North and South Korea.

The authors say global uncertainty has “increased significantly” since 2012. Notably, that uncertainty has not, however, translated into stock market volatility, perhaps because the political news has increasingly become difficult for investors to interpret.

Uncertainty tends to be synchronized among advanced economies, especially among the euro area countries. And, as countries move from regimes of autocracy towards democracy, uncertainty increases but declines as the degree of democracy increases and as the quality of institutions improves. The WUI offers an interesting window into what drives uncertainty in individual economies, as well. For example, China experiences higher levels of uncertainty in association with key leadership transitions. The UK experienced a spike in uncertainty at the time of the Scottish referendum.

When Flat-Lining is Good

Trade as a component of the World Uncertainty Index has been low and nearly flat for most of the last twenty years, but has experienced a major spike in uncertainty over the last four years, in particular due to the U.S.-China trade dispute and the setbacks in negotiating a smooth UK exit from the European Community. As Nicholas Bloom has put it, the United States, UK and China have been “exporting uncertainty”.

Trade Component of World Uncertainty Actual

Trade Versus COVID-19

For close to an entire year now, COVID-19 has been dominant and pervasive in our lives and the global economy. COVID-19 is novel by definition. The unknowns and uncertainty it wreaks show up everywhere – in stock markets, on Twitter and in the news. It should not be surprising, then, that the spike in uncertainty caused by COVID-19 far outstrips that caused by the U.S.-China trade war.

But global trade tensions are not receding and the aftershocks of COVID-19 will continue to be felt in supply chain restructuring. That restructuring will take place in an environment of increasing restrictions on foreign investments, export controls, sanctions, and blacklisting of entities and individuals that multinational corporations can do business with. Long-established supply chain relationships may be less disrupted, but new relationships may not be initiated at the same rate or in the same way in times of high economic policy uncertainty.

While measuring the real impacts of economic uncertainty in still a relatively new concept, central banks and government agencies are beginning to pay attention, and to that end, it will be interesting to continue to take our collective pulse using indices like the EPU and WUI.

Hear Nicholas Bloom explain in his own words in this webinar presented by the Clayton Yeutter Institute of Trade and Finance at the University of Nebraska. Images are drawn from the slides used by Nicholas Bloom and accessible here.

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Andrea Durkin is the Editor-in-Chief of TradeVistas and Founder of Sparkplug, LLC. Ms. Durkin previously served as a U.S. Government trade negotiator and has proudly taught international trade policy and negotiations for the last fifteen years as an Adjunct Professor at Georgetown University’s Master of Science in Foreign Service program.

brexit

THE ROAD TO BREXIT

As Scott Miller wrote in one of our earliest articles, How Will Brexit Affect the UK’s Trade Relationships, the outcome of the UK’s exit from the European Union (EU) single market and customs union has broad implications for the UK economy and its terms of trade with the rest of the world.

On March 29, 2017, the UK’s notification of its intention to withdraw from the EU under Article 50 of the Lisbon Treaty triggered a statutory two-year clock for completion. That deadline was ultimately extended until January 31, 2020, when a transitional period began.

TradeVistas originally offered this timeline to summarize key events and milestones between 2015 and the first quarter of 2019, including the resignation of Prime Minister Theresa May and first term of Prime Minister Boris Johnson. It has since been expanded to reference the ongoing negotiations that continue in hopes of avoiding a “hard Brexit” on December 31, 2020, reverting to trade rules in the WTO.

For more narrative on how events have unfolded and why, we recommend the writing of Amanda Sloat at Brookings, who has followed the issue closely.

Download the infographic below updated as of October 16, 2020.

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Andrea Durkin is the Editor-in-Chief of TradeVistas and Founder of Sparkplug, LLC. Ms. Durkin previously served as a U.S. Government trade negotiator and has proudly taught international trade policy and negotiations for the last fifteen years as an Adjunct Professor at Georgetown University’s Master of Science in Foreign Service program.

trade war

U.S.-CHINA TRADE WAR TIMELINE

Unconventional Trade Warfare

Since taking office, the Trump administration has been building its case against Chinese practices they view as unfair to American businesses, including subsidization of industrial production and requirements to transfer proprietary U.S. technologies. The Trump administration has also taken aim at the opaque connections between state-directed and strategic private enterprises, seeking to tighten oversight of Chinese investments in the United States and make examples of Chinese companies like ZTE Corporation that might be working around U.S. sanctions against Iran and North Korea.

It has been an unconventional and rapid-fire series of steps as the Trump administration deploys a variety of executive powers, U.S. trade laws, WTO proceedings, and threats. American companies and the average consumer can hardly keep track of proposed tariffs, real actions, and market reactions. Some of these measures our manufacturers and innovators have been seeking for years, but other measures they aren’t sure they want at all, or worry about the consequences of Chinese retaliation. America’s farmers are especially worried about getting caught in the crosshairs.

On January 15, the United States and China signed an unprecedented type of trade deal. If you’ve lost track of how we got here, below is a handy quick guide to recent events in this unfolding U.S.-China trade war. Download and share the graphic, updated as of October 14, 2020.

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Andrea Durkin is the Editor-in-Chief of TradeVistas and Founder of Sparkplug, LLC. Ms. Durkin previously served as a U.S. Government trade negotiator and has proudly taught international trade policy and negotiations for the last fifteen years as an Adjunct Professor at Georgetown University’s Master of Science in Foreign Service program.

elections

THE ANTI-FREE TRADE EFFECT OF ELECTIONS

Do As I Say?

Trade rarely ranks high for voters in the election booth – so why do we seem to see an uptick in anti-trade sentiment around election time? And does protectionist rhetoric during the campaign season influence politicians’ actual voting behavior on trade?

Evidence, both anecdotal and academic, suggests yes – term length and the electoral calendar play a key role in determining the outcome of votes on trade policy. Members of Congress tend to believe that supporting more protectionist trade policy will increase their chances of re-election. Conversely, without that fear of repercussions at the ballot box, politicians vote in favor of more liberal trade policy.

In the words of economist Dani Rodrik, “no other area of economics displays such a gap between what policymakers practice and what economists preach as does international trade.” There are many examples of normally pro-trade politicians shifting their views around election time.

For example, in the run-up to the 2008 presidential election, Barack Obama attacked NAFTA despite going on to go all-in on free-trade in his presidency. Similarly, in the 2016 Toomey vs. McGinty Pennsylvania Senate race, both formerly free-trade politicians changed their tune to try to appeal to more voters. Beyond the anecdotes, a group of economists has sought to study the pattern over years of trade votes in the United States.

A Study into Economic Policy and Elections

In their 2011 paper “Policymakers’ Horizon and Trade Reforms,” Paola Conconi, Giovanni Facchini, and Maurizio Zanardi attempted to empirically answer the question: Do imminent elections impact the decision-making and voting behavior of elected officials on issues related to trade?

Conconi, Facchini, and Zanardi compared the voting behavior of candidates facing an upcoming re-election contest with those who had a long term ahead of them. Senators are up for election every six years (meaning that every two years, one-third of all seats are up) whereas U.S. House members face election every two years. This vote log provides many data points that show changes in behavior of individuals over time, at different points in the election cycle.

The authors analyzed the individual roll call votes on the final passage of every trade liberalization bill introduced in the U.S. Congress between 1973 and 2005. They considered 29 votes in total, covering 15 trade reform bills. All but one of the bills was approved but with varying margins.

Closer to Re-Election, Free Trade Voting Tendency Drops 10 Percent Points

First, the authors compared House and Senate members. Other studies have shown that House members are generally less likely to support trade liberalization than senators, and the authors’ results align with this. However, the authors found that there is no significant difference in the voting behavior between House members and senators during their last two years before re-election. This suggests that the intercameral difference between the two groups could be explained by their term length, rather than other factors such as constituency size.

Next, they compared different generations of senators, finding that they become more protectionist the closer they get to a re-election campaign. Senators in the last two years of their term are around 10 percentage points less likely to vote in favor of trade liberalization policies than those in their first four years, a significant difference. Interestingly, Banri Ito, in his 2015 paper, used data from the Japanese House of Representatives election in 2012 to find similar results, indicating this is not purely an American phenomenon.

Probability of Vote for Trade Reform

Safe Seat, Retirement or Election Defeat Associated with Free Trade Vote

Their results hold when studying the behavior of the same senator over time or comparing a whole host of controls including campaign contributions, age, gender, and party affiliation. Even those representing constituencies where a majority of their voters should benefit significantly from trade liberalization, such as heavy exporting constituencies, exhibit the same late-term protectionist tendencies.

In contrast, senators who are retiring or who hold very safe seats do not change their behavior as an election nears. Interestingly, two of the votes they tracked occurred in a “lame duck” session (after November elections but before the new senators had taken their seats). In those votes, no defeated senators voted against trade liberalization.

Overall, the Conconi, Facchini, and Zanardi study showed:

-Members of the U.S. House are more anti-trade liberalization than U.S. Senators, but that difference disappears during the last two years of a senator’s term.

-Election proximity reduces representatives’ support for trade.

-The protectionist effect applies both to senators who generally oppose liberalization (Democrats and import-competing constituencies) but also to senators who are generally more pro-trade (Republicans and export-competing constituencies).

-The inter-generational differences disappear for representatives holding safe seats or who are retiring (meaning a return to votes in favor of trade liberalization).

10 point drop

Anecdotal Evidence – Trade and Elections Today

Although far from sufficient to draw any concrete conclusions, anecdotal evidence does appear to corroborate findings from the Conconi, Facchini, and Zanardi study. We can find numerous examples of U.S. politicians changing their views on trade when the re-election stakes are high.

When votes on significant trade deals are on the table, trade has featured in congressional races, but in presidential races, trade is often a footnote or subsumed by debates over the state of the economy broadly. However, Donald Trump’s presidential campaign signified a marked change as he made trade a central part of his platform. In 2016, both Donald Trump and Hilary Clinton took a negative stance on the Trans-Pacific Partnership (TPP), and Trump against NAFTA. Notably, as Secretary of State, Clinton had defended TPP as the “gold standard” of trade agreements, but expressed a different view during election season.

In the 2016 Pennsylvania Senate Race, support of the TPP became an extremely important issue between two politicians with records of trade-liberalization support. Republican Senator Pat Toomey and Democrat rival Katie McGinty both came out against the TPP, despite the former’s career-spanning support of free-trade deals, and the latter’s support of the then newly-signed NAFTA while she served in Bill Clinton’s administration.

Similarly, Republican Ohio Senator Robert Portman, who voted in support of NAFTA in 1993, a series of subsequent trade deals, and served as George W. Bush’s chief trade negotiator, came out against the TPP. Democratic rivals called the announcement an election-year conversion.

Some politicians even admit to changing their views due to the political climate. Rep. Luke Messer (R-IN) who went from supporting various free trade deals with China to opposing them, called his own reversal on the issue a reaction to changing political pressure.

As for the 2020 election, Biden and Trump both cite trade as a critical issue, saying that U.S. trade policy has not been benefiting Americans as it should. Biden seems to have moved away from his past pro-free trade stance, and both candidates are advocating for Buy American policies.

DNC & RNC Platforms

Both the Republican and Democratic parties have taken on a protectionist bent ahead of the 2020 election, and in fact the platforms seem remarkably similar. Both the Democratic and Republican platforms emphasize the need to protect American workers from a competitive international system, with free trade and trade agreements taking a back seat. The Republican party is doubling down on its 2016 goals to punish China and bring outsourced jobs back to the United States, while the Democratic party touts the same goals, but proposes a new solution.

Democratic Party

In the 2020 Democratic Party Platform, any talk of free trade is notably absent, apart from a brief mention of support for the African Continental Free Trade Agreement and promoting free trade in that region. Instead, when trade is mentioned the focus is on China’s unfair trade practices and on the need to protect American workers from the global trading system.

The platform states that “Democrats will pursue a trade policy that puts workers first,” negotiating for labor, human rights, and environmental standards in trade agreements. They cite the COVID-19 pandemic as evidence that the United States has over-relied on global supply chains, but criticize the Trump Administration’s U.S.-China trade war as un-winnable. On the issue of China, the Democratic party plans to take aggressive action against them, and any other country that takes unfair trade action such as dumping, currency manipulation, and unfair subsidizing, as well as theft of U.S. intellectual property. The platform states that tax and trade policies that have encouraged corporations to move manufacturing jobs overseas and avoid taxes will be eliminated. They will “claw back” any public investments or benefits received by a company that shuts down U.S. operations to move abroad.

The DNC’s discussion of “Global Economy and Trade” and “Advancing American Interests” focuses yet again on putting American workers first. They claim that no new trade agreement will be negotiated before first investing in American competitiveness, and existing trade laws and agreements will be aggressively enforced. They plan to work with allies to stand up to China, and negotiate from the strongest possible position. An outline is also given of their stance to fight foreign corruption, and to reign in “misused and overused” sanctions.

trade platforms

Republican Party

The Republican party decided to forgo a traditional platform this year, instead opting to “to enthusiastically support the president’s America-first agenda”. However, the party also agreed to adopt the same platform as in 2016. President Trump has released a list of core priorities for his second-term agenda, two of which – “Jobs” and “End Our Reliance on China” – contain goals directly applicable to issues of trade. Echoing the growing protectionist rhetoric, Trump’s priorities appear to double down and expand on the 2016 platform.

Under the core priority of “Jobs,” Trump vowed to “Enact Fair Trade Deals that Protect American Jobs” and implement “’Made in America’ Tax Credits”, sentiments that match up with Trump’s various executive orders focused on Buy American policiesThe 2016 Republican platform recognized the importance of free trade deals: “We envision a worldwide multilateral agreement among nations committed to the principles of open markets, what has been called a ‘Reagan Economic Zone,’ in which free trade will truly be fair trade for all concerned.” The 2020 priorities seem to expand on this policy, stating that free trade is good, but with much more focus on the American worker and American power in the equation.

Another of Trump’s core priorities is to “End Our Reliance on China,” including goals such as “Bring Back 1 Million Manufacturing Jobs from China,” “Tax Credits for Companies that Bring Back Jobs from China,” and “No Federal Contracts for Companies who Outsource to China”. China was mentioned in the 2016 platform too, with the party vowing to take a firm stance that involved retaliation when necessary in order to punish Chinese “currency manipulation, exclusion of U.S. products from government purchases, and subsidization of Chinese companies to thwart American imports.” Perhaps unsurprisingly given global politics, this again appears to be an area of increased focus for the Trump administration looking ahead to a second term.

Protectionist Rhetoric on the Rise

Past studies have found evidence to support the assertion that when faced with an election, politicians are more likely to take a protectionist stance. That trend has continued, or perhaps escalated, over the last 15 years – and if the rhetoric we’re seeing on the 2020 campaign trail is any indication, it seems unlikely to slow down anytime soon.

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Alice Calder

Alice Calder received her MA in Applied Economics at GMU. Originally from the UK, where she received her BA in Philosophy and Political Economy from the University of Exeter, living and working internationally sparked her interest in trade issues as well as the intersection of economics and culture.

public morals

WHICH WAY IS THE MORAL TRADE COMPASS POINTING? U.S. LOSES WTO ARGUMENT THAT TARIFFS ON CHINA PROTECT U.S. PUBLIC MORALS

Tariffs as a Proxy in a Larger Economic (and Moral?) War

By July 2018, the United States and China had each fired off the first shots in a tariff war that would escalate over the next year (see TradeVistas’ timeline here).

With higher tariffs on $60 billion in its exports to the United States and staring down the barrel of tariffs on another $200 billion, China requested the establishment of a WTO dispute settlement panel. Specifically, China sought for a panel to review whether U.S. tariffs – imposed unilaterally and without WTO authorization – violated the United States’ basic obligations to provide most favored nation treatment to China according to the U.S. schedule of tariff commitments in the WTO.

The dispute was triggered by the issuance of a March 2018 report describing the findings of an investigation by the Office of the U.S. Trade Representative under Section 301 of the Trade Act of 1974 into China’s unfair acquisition of U.S. intellectual property and technologies. In its first line of defense, the United States contends that most of the practices it reviewed as part of this investigation are not covered by existing WTO disciplines and therefore the measures it took (the tariff increases on imported goods from China) are “fundamentally not about WTO rights and obligations.”

Fast forward past the legal proceedings, the WTO panel to hear China’s claim issued its final report to the United States and China in June and it was made public on September 15.

The United States argued that, even if the panel finds it violated its WTO commitments to China, it was justified on the grounds that the tariffs were necessary to protect public morals.

It lost the argument. Here’s how. (Disclaimer: this is not a legal brief but rather a plain reading of the panel report.)

Summary of case

Going on the Moral Offense

USTR did initiate a WTO case against China focused on those practices it determined are covered by WTO disciplines and therefore could be addressed through WTO dispute settlement. But the United States also claims that the bulk of China’s practices contained in the scope of its Section 301 investigation are not addressed by WTO disciplines.

Further, the United States argues that China’s practices such as requirements upon foreign companies to transfer their technologies or license on non-market terms, and cyber-enabled theft, “undermine U.S. norms against theft and coercion and undermine the belief in fair competition and respect for innovation, all of which are key aspects of U.S. culture.” In other words, combatting them is a matter of protecting “public morals”.

First Things First

There’s an order in which a WTO panel considers the constituent parts of a case. In this case brought by China against the United States, the panel first reviewed whether the U.S. measures in question (several tariff increases covering different sets of products from China) were inconsistent with U.S. obligations. If so, the panel considers whether the inconsistency is justified as “necessary to protect U.S. public morals” under Article XX(a) of the General Agreement on Tariffs and Trade 1994 (GATT 1994).

GATT XXa

The United States did not refute China’s case that the tariff measures are inconsistent with U.S. market access obligations (under Articles I:1 and II:1(a) and (b)). Therefore, the WTO panel found in favor of China on this point and moved on to consider the U.S. argument that the WTO-inconsistent tariff measures were necessary to protect U.S. public morals, within the meaning of GATT Article XX(a).

Making a Moral Case

Article XX(a) was part of the original GATT 1948 but it was not invoked even once in the subsequent almost 60 years.

It has since been argued by WTO members to justify measures designed to prevent money laundering, organized crime and gambling within a Member’s territory (a dispute between Antigua and the United States over Internet gambling), by China (unsuccessfully) to prevent the distribution of foreign movies and other audio-visual entertainment, and by the European Union to restrict imports of seals and seal products, a case in which the panel accepted that animal welfare falls under public morals but struck down the form of the measure under dispute.

Brazil sought to use the public morals exception to exempt certain domestic companies that produce television equipment from paying taxes as part of its public morals objective of “bridging the digital divide” in Brazil.

The Sum of the Parts

There’s a certain amount of deference given to WTO members to define public morals, which shift in nature and importance within societies over time.

Because the exceptions in Article XX are seen as limited and conditional, the burden lies with the WTO member invoking the exception to prove the measure indeed falls within the scope of the exception.

On the basis of this justification, WTO panels apply several “tests”: Has the WTO member justifying a measure under this exception demonstrated that the measure protects public morals? Is the measure “necessary” to achieve the stated public morals objective? Is the measure being applied in a manner that constitutes “arbitrary or unjustifiable discrimination” within the meaning of Article XX?

In this case, according to the panel, the onus was on the United States to explain how its tariff measures contribute to its public morals objective as well as how the scope of WTO-inconsistent tariffs do not apply beyond what is necessary within the meaning of Article XX(a) of GATT 1994.

A Means to the End

At its core, the United States argued that tariff increases were necessary to induce a change in China’s cost-benefit analysis – in other words, the economic stakes needed to be high enough that China would be convinced to discontinue its alleged technology and intellectual property theft. Tariffs were necessary because previous forms of diplomatic and trade negotiation engagements had demonstrably failed.

The United States also argued that a ban on imports of Chinese products into the United States would represent an overly trade restrictive measure; in contrast, tariff increases are not overly trade restrictive.

Not Necessarily So

Part of the panel’s job is to judge whether the measure is a genuine means to an end. In this case, did the tariffs contribute to the public morals objective and, even if so, were WTO-consistent or less trade-restrictive alternatives available to achieve the same outcome?

Simply saying the tariffs were necessary isn’t a sufficient defense. Some quantitative or qualitative assessment must be presented to form the basis of a conclusion by the panel.

Immoral Goods?

In an interesting and important angle to the case, the European Union argued in a third-party brief that Article XX(a) requires that the risk to public morals manifest itself either in the content of the goods themselves or in the methods in which the goods were obtained or produced – that demonstrating so affords a sufficient nexus between the public morals objective and the measure restraining imports of those products.

Related to this focus on the products ensnared in the measure, China argued that the goods subject to increased tariffs went well beyond the scope of products that “may have” received the benefit of technology transfer or intellectual property theft. In their view, the measure was overly trade-restrictive and not related to protecting public morals.

In its rebuttal, the United States countered that the text of Article XX(a) does not require a direct correlation or “embodiment” between the products subject to the measure and the public morals being protected. Although the tariff measures included Chinese goods that benefit from “unfair and immoral Chinese technology transfer policies,” tariffs on goods not directly involved in these practices were included as well to reach a scope of tariff penalties more broadly commensurate with the estimated overall harm to the U.S. economy of China’s practices.

The United States also found itself defending the use of a common form of public consultation. USTR amended the scope or provided exclusions from the tariffs on the basis of public comments. However, the panel found it unclear how or whether public moral concerns factored into those decisions or whether any such exclusions would “undermine or run counter to the stated U.S. public morals objective.”

Case Not Made

Ultimately, the panel viewed the U.S. explanation for the nexus between the nature of the measure (the specific tariffs applied to specific lists of goods) and the public morals objective as insufficient. The panel ruled against the United States – in other words, the measure did not appear to be “necessary” to achieve the public morals objective.

Having concluded that necessity wasn’t proven, the panel did not compare the U.S. use of tariffs with any alternative measure or assess whether U.S. tariffs on goods from China constituted “arbitrary or unjustifiable discrimination” or “a disguised restriction on international trade”. Case over.

Lighthizer quote

Moral Dilemma

The WTO panel ruling in this case may have no practical effect. The United States could appeal the outcome, but the WTO Appellate Body does not have a sufficient number of appointed members to operate, so if the United States does not agree to adopt the panel decision as it currently stands, the case is stuck in a legal limbo.

Meanwhile, tariffs on goods from China remain, and tariffs on U.S. goods to China remain. If the United States did appeal and lost, the WTO panel could authorize China to retaliate – normally in the form of tariffs. But such authorization would merely formalize the action China has already taken without WTO permission – a hypocritical outcome at best.

More important than the dueling tariffs, the United States is aggrieved that China used the WTO as a shield for its “unfair and trade-distorting technology transfer policies and practices not covered by WTO rules” and that China committed the same WTO offense of applying tariffs on U.S. imports without awaiting the outcome of its case or receiving authorization to do so. That’s having your cake and eating it too.

In concluding comments, the panel observed that the “wider context in which the WTO system currently operates reflects a range of unprecedented global trade tensions,” perhaps an oblique acknowledgement that the issues the United States raised are indeed beyond the reach of current multilateral agreements.

USTR Ambassador Robert Lighthizer thinks so. In a press statement issued the day the WTO panel report went public, Lighthizer said the panel decision, “shows that the WTO provides no remedy for [China’s] misconduct.”

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Andrea Durkin is the Editor-in-Chief of TradeVistas and Founder of Sparkplug, LLC. Ms. Durkin previously served as a U.S. Government trade negotiator and has proudly taught international trade policy and negotiations for the last fifteen years as an Adjunct Professor at Georgetown University’s Master of Science in Foreign Service program.

tiktok

D.C. District Court Judge Blocks Commerce’s TikTok Ban

A federal judge from the U.S. District Court for the District of Columbia granted TikTok’s motion for preliminary injunction, resulting in a nationwide temporary suspension of an order from the U.S. Department of Commerce (“Commerce”) for Apple and Google to remove TikTok from its U.S. app stores.

Last week, Chinese social media app WeChat was separately granted a similar injunction by a federal judge from the U.S. District Court for the Northern District of California. The two China-based smartphone apps are facing impending bans pursuant to Executive Orders (“E.O.”) 13942 (for TikTok) and 13943 (for WeChat), issued by the President on August 6, 2020.

Following the court’s ruling, Commerce issued a statement that it intends to comply with the injunction, but that it also “intends to vigorously defend the E.O. and the Secretary’s implementation efforts from legal challenges.” The preliminary injunction effectively grants TikTok’s parent company, ByteDance Ltd. (“ByteDance”), more time to finalize and obtain approval of its agreement with Oracle and Walmart. The pending deal over TikTok will still need to be reviewed and approved by both the Committee on Foreign Investment in the U.S. (“CFIUS”) and the Chinese authorities.

The court denied TikTok’s request for an additional preliminary injunction against the implementation of the second set of restrictions, which take effect on November 12, 2020. These restrictions would prevent the provision of internet hosting, content delivery networks, or other internet transit services to TikTok.

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Beau Jackson is a Kansas City-based partner with the law firm Husch Blackwell LLP. He leads the firm’s Section 337 practice.

Camron Greer is an Assistant Trade Analyst in Husch Blackwell LLP’s Washington D.C. office.