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TRADE BARRIERS EVOLVE WITH MOVIE STREAMING TRENDS

streaming

TRADE BARRIERS EVOLVE WITH MOVIE STREAMING TRENDS

We’re All Streaming Now

During our collective stay-at-home period, movie streaming has grown to the point where industry analysts are wondering whether many people will return to movie theaters. Netflix reported 15.8 million new subscribers for the first quarter of the year, more than double their forecast, according to the Wall Street Journal. Some studios are eschewing the traditional theatrical release and going straight to digital. As some indicator of how the trend is taking off, the Motion Picture Academy has said that — just for this year — movies released via streaming would be eligible for the upcoming Oscars.

Streaming movies online has been growing in popularity in recent years, but the coronavirus has accelerated the trend. Unfortunately, where consumer and commercial trends go, trade policy barriers may follow.

The Hollywood Juggernaut

Movies both reflect and shape our national cultures. Hollywood has traditionally dominated among international viewership (a phenomenon that has been shifting over recent years), sometimes to the consternation of “keepers of culture” in other countries. As far back as the 1920s, European countries offered subsidies to domestic film producers and imposed so-called screen quotas to establish a minimum number of screening days for domestic films. The OECD keeps track of restrictions on services trade in OECD member countries, including audiovisual services, the category under which movies fall. According to the OECD, eleven countries still today reserve a quota for local motion pictures shown in theaters or on television.

Other measures to shore up local culture against the tidal wave of cultural influence that is Hollywood include import quotas, tax breaks to domestic film industries, foreign investment restrictions, requirements for local sourcing of cast and crews, and blackout periods during which no new imported films may be released, often during prime movie-going periods or timed to political events.

Film Distribution in Hollywood

Ready, Action…Trade

Such measures discriminate against the film industries of other countries and constitute barriers to trade. Policymakers have sought to address screen quotas in trade agreements such as the WTO’s General Agreement on Tariffs and Trade (GATT) and the original North American Free Trade Agreement (where Mexico agreed to reduce its screen quotas). Provisions to remove barriers to audiovisual services have also been included in many recent bilateral free trade agreements.

In the case of Korea, whose vibrant film industry reached a pinnacle of global recognition with the Academy’s choice of Parasite as Best Picture in 2020, formal restrictions targeting foreign films date back to Korea’s Motion Picture Law of the 1960s. The Korean government abolished its import quota in the late 1980s, and only after the Motion Picture Export Association of America (MPEA) in 1985 filed a complaint (later withdrawn) with the U.S. Trade Representative under section 301, the same tool being used today to try to address China’s technology transfer requirements. In 2006, just prior to the Korea-U.S. (KORUS) free trade agreement negotiations, Korea agreed to reduce by half its screen quota from a minimum of 146 days to the current 73 days per year.

Digital Era Trade Restrictions

While cultural protections for film have traditionally focused on theatrical screenings, screen quotas don’t work in the digital era, where on-demand audiovisual services such as Netflix and Amazon Prime are increasingly capturing viewership. As a result, new forms of trade barriers are popping up.

For example, China has imposed tighter regulatory controls in recent years, limiting foreign content purchased for streaming in the Chinese market, which has over 850 million digital consumers. U.S. streamers must license their content for China under a 30 percent streaming quota. Chinese content, however, can reach global audiences through video streaming platforms with no such numerical limits. In today’s tense political environment – and with China marking the 100th anniversary of the establishment of the Communist Party in 2021 – we could anticipate increased censorship, which would exacerbate the problem of foreign content scarcity while simultaneously elevating the risk of piracy and other illegal distribution of unauthorized content.

In line with a longstanding European Union (EU) focus on protecting the European film industry, the EU passed a law in late 2018 that requires Netflix, Amazon and other online streaming services to dedicate at least 30 percent of their output to films made in Europe, which they must subsidize by either directly commissioning content or contributing to national film funds. Regulation now applies similar rules to similar services, whether online or offline.

U.S. and European trade discussions are now focused on a limited set of issue areas, but in an earlier push for a Transatlantic Trade & Investment Partnership (TTIP) in 2013, the camera zoomed in on issues of culture in trade negotiations. At the time, the European Commission was given a negotiation mandate that expressly excluded opening the European audiovisual sector to competition from U.S. firms.

China has 850 million digital consumers

Competition Makes Most Things Better – Even Movies

Culture clashes aside, there is a strong case that greater competition has been the force behind successful film industries outside of Hollywood. Researchers Jimmyn Parc and Patrick Messelin posit that the success of contemporary Korean cinema is due to “less interventionist public policies over the last two decades,” together with “benchmarking, learning, and innovating among non-subsidized private companies.” They point to data from the decade preceding the industry’s opening in the late 1980s, when the Korean film industry released around 90 films per year with an average revenue of KRW ₩0.9 billion per film (roughly USD $0.7 million at the current exchange rate). From 1989-2005, around 75 films were released per year with an average revenue of KRW ₩2.7 billion per film (roughly USD $2.2 million at the current exchange rate), a signal of the improvement in film quality.

Brian Yecies of the University of Wollongong Australia agrees that Korea’s efforts to liberalize in the 1980s and address censorship enhanced competition. As Hollywood expanded into Asia-Pacific markets, Korean cinema became stronger. The increased distribution and exhibition of U.S. films, Yecies argues, gave birth to a new generation of moviegoers who also increased their consumption of Korean content. Park Moo Jong credits three elements with reviving the Korean film industry: talented young filmmakers, the virtual abolition of government censorship, and remarkable technological developments. In short, he says, “Good films attract fans.”

EU streaming requirements

The Streamed Show Must Go On

In a 2019 submission to the U.S. Trade Representative, the Motion Picture Association pointed out that the industry’s international sales “now depend increasingly on member companies’ ability to capitalize on major distribution windows in the digital market.”

The need to remove barriers to stream internationally and enable competition holds true for online streaming as it has for many years for screening in theaters. As streaming gains momentum, trade agreements will continue to tackle the array of barriers the U.S. film industry faces abroad, from intellectual property challenges to subsidies to foreign investment restrictions. Likewise, negotiators will work to advance market access for creative content as it flows through both traditional and new distribution platforms. After Parasite’s surprise Best Picture Oscar win, who knows if 2021 may bring our first direct-to-digital winner? Put your feet up and get the popcorn ready.

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Leslie Griffin is Principal of Boston-based Allinea LLC. She was previously Senior Vice President for International Public Policy for UPS and is a past president of the Association of Women in International Trade in Washington, D.C.

This article originally appeared on TradeVistas.org. Republished with permission.
trade

TRADE IN A GALAXY FAR, FAR AWAY

Historic launches . . . and customs paperwork

On July 16, 1969, the Apollo 11 astronauts rocketed from Pad 39-A toward a rendezvous with history. Within hours, their massive Saturn V rocket — which churned out as much energy as 85 Hoover Dams — catapulted the astronauts out of Earth’s orbit and on a trajectory to the Moon. But, although Apollo 11 eventually slipped from the grasp of Earth’s gravity, the crew couldn’t avoid the reach of U.S. Customs. Upon their return to Earth, astronauts Neil Armstrong, Buzz Aldrin, and Michael Collins filed one of history’s most unusual trade documents — a customs declaration listing their point of departure as the “Moon” and their cargo as “Moon rocks and Moon dust samples.”

Later this month, Pad 39-A should again witness history when a Falcon 9 rocket boosts astronauts Bob Behnken and Doug Hurley to the International Space Station (ISS) aboard a SpaceX Dragon spacecraft. This milestone launch will be the first time in the annals of spaceflight that a privately owned and launched spacecraft has carried humans into orbit. The Dragon launch—together with rapidly advancing plans to harness the resources on the Moon and asteroids—heralds a new era in which the trade and commercial implications of space are far more complex than the quirky experience of Apollo 11.

Facilitating space exploration

As a general matter, items launched into space are considered to be in international commerce. U.S. Customs, for example, deems the launch of an article into space as an “export” under its regulations.

Over the years, the United States and other spacefaring nations have taken steps to prevent trade rules from complicating space operations. Under a 1984 law, for instance, the United States doesn’t consider articles launched from and returned to U.S. customs territory aboard an American spacecraft to be an “importation” requiring customs entry. Similarly, under the agreement governing the International Space Station, the United States and its international partners have agreed to the duty-free import and export of articles required for the ISS. Like vacationing Earthlings, astronauts do, however, have to clear customs when they travel internationally for spaceflights, although officials hold their passports while they’re in space.

International treaties also establish critical norms for the conduct of nations and their nationals in space. The 1967 Outer Space Treaty forms the basis of international space law. Among other things, that treaty: (i) limits the use of the Moon and other celestial bodies to peaceful purposes, (ii) provides that space is free for exploration and use by all nations, and (iii) prohibits nations from claiming sovereignty over space or celestial bodies. Other treaties govern the rescue and return of astronauts, liability for damage caused by space objects, and the registration of objects launched into space.

Aldrin Customs Declaration for Moon Rocks

The era of space commerce and resources

While this legal framework has generally functioned well during the age of government-dominated space exploration, the rapidly emerging era of space expansion and commerce — in which governments and private firms increasingly harness physical space resources — requires new rules.

Under Project Artemis, NASA, together with private sector and foreign partners, has ambitious plans to return humans to the Moon and establish sustainable, long-term operations there. This will require finding, extracting and using the Moon’s water and mineral resources. In the coming decades, countries and companies will target asteroid resources, extracting water to generate fuel for spacecraft, mining metals like iron and nickel to build equipment in space, and eventually returning rare elements like platinum to Earth. Astrophysicist Neil deGrasse Tyson predicts that asteroid mining could ultimately generate trillions in economic value.

Who owns the Moon?

These efforts will face enormous technical hurdles, and a big legal one: the ongoing inability of the global community to agree on who can extract, use, and own space resources. This conflict dates back to the negotiation of the Outer Space Treaty itself, when the United States rejected the Soviet Union’s position that space should be a commons, where ownership was not possible.

One group of countries and legal experts continues to espouse a global commons approach to space resources, as outlined in the 1979 Moon Agreement. That treaty, which also covers other celestial bodies, provides that the exploration and use of the Moon “shall be carried out for the benefit and in the interests of all countries,” and that the Moon’s natural resources are “the common heritage of mankind” and cannot become the property of any government, organization or person. The Agreement also calls for the eventual establishment of an international regime to govern the exploitation of the Moon’s resources. There are currently 18 parties to the Moon Agreement, most of which are not spacefaring countries.

Other countries, including the United States and Luxembourg, take a contrary view. Under a 2015 law, the United States declared that U.S. citizens engaged in commercial recovery of space resources were entitled to own, use and sell those resources under applicable law. A recent U.S. Executive Order doubles down on this position, reaffirming the right of private parties to exploit space resources, rejecting the Moon Agreement and the global commons, and instructing U.S. officials to seek agreements with like-minded countries on the private exploitation of space resources. The Trump Administration is planning to negotiate “Artemis Accords” with partner countries that would provide for “safety zones” around future Moon bases and rules for private Moon mining.

Future Lunar Base Artist's Rendition NASA

Proponents claim that these actions don’t constitute a prohibited claim of national sovereignty in violation of the Outer Space Treaty, while others believe that such steps can only be authorized by further international agreement. Russia has denounced recent U.S. actions as an impediment to international cooperation.

Failure to resolve this disagreement could eventually result in growing international and trade conflicts — both on Earth and in space. Nations that maintain that space resources are a global commons might, for example, impose trade or other sanctions on countries or companies that unilaterally mine space resources, or they could ban trade in those resources or their products. Without agreed rules on space mining operations, disputes among space prospectors competing for celestial stakes could, in turn, generate significant terrestrial conflicts.

Even if countries eventually resolve disagreements over rights to space resources, other issues of space trade and commerce will continue to emerge. If a government extensively subsidizes space mining operations by its national companies, for example, will there be a need for global anti-subsidy disciplines like those currently applied to state subsidies for steel production?

Peace in space

At a time of simmering trade wars, pandemic-related trade barriers, and calls to abolish the World Trade Organization, crafting clear international accords for space resources and commerce might appear to be a low-priority concern. But this effort is vital, given rapid advances in technology, the potentially vast value of space resources, and fundamental differences among nations about who can own and exploit them.

Even science fiction calls for action on this issue. After all, as Star Wars fans may remember, a conflict over galactic trade is what kicks off Episode 1 – and the entirety of the Star Wars saga.

Also on TradeVistas: The Global Space Economy is Taking Off Like a Rocket

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Ed Gerwin is a lawyer, trade consultant, and President of Trade Guru LLC.

This article originally appeared on TradeVistas.org. Republished with permission.

trade protectionism

Trade Protectionism Won’t Help Fight COVID-19

Countries around the world are limiting international trade and turning inward, seeking to produce nearly everything — especially medical supplies — themselves.

The Trump administration, for instance, is considering a “Buy American” executive order that would require federal agencies to purchase domestically made masks, ventilators, and medicines. And over two dozen countries — including France, Germany, South Korea, and Taiwan — have banned domestic companies from exporting medical supplies.

The scramble for self-sufficiency in medical supplies and medicines needed to fight the coronavirus is make-believe. It is neither feasible nor desirable, and will only deepen the pain felt amidst this pandemic.

Governments around the world have responded to COVID-19 by imposing export restrictions on things like ventilators and masks. In mid-April, Syria became the 76th country to follow suit. The import side of things isn’t much better. The World Trade Organization (WTO) reports that tariffs remain stubbornly high on protective medical gear, averaging 11.5 percent across the 164 members of the Geneva-based institution, and peaking at just under 30 percent.

This is no way to fight a pandemic.

It’s not that COVID-19 caused this bout of trade protectionism. It’s just that COVID-19 offers up a useful narrative to promote trade protectionism.

The Trump administration, for instance, has been touting its “Buy American” executive order as a move to spur local manufacturing. Canada has also considered going it alone in ventilators and masks, but recently acknowledged it can’t possibly achieve self-sufficiency in medicines. No one can.

The way many governments see it, the only thing standing in the way of greater self-reliance in medical equipment and medicines is the will to pay for it. The story is that ventilators might be more expensive if made domestically, but that’s the cost of going it alone. It’s only a matter of getting Bauer and Brooks Brothers, for example, to make personal protective equipment, rather than hockey gear and clothing.

But there’s a reason Bauer makes skates instead of surgical masks. It’s better at it, and skates are a much more lucrative business. Bauer didn’t misread the market. It’s heartwarming to hear that Bauer is stepping in to help out, but the company knows that making surgical masks in the US is five times more expensive than making them in China. That’s why 95 percent of the surgical masks in the US are imported.

The absurdity of self-sufficiency in medicines is even more glaring. The US is a major exporter of medicines, but the raw chemicals used to make them are imported. Nearly three-quarters of the facilities that manufacture America’s “active pharmaceutical ingredients” are overseas. To reorient supply chains to produce these ingredients domestically would take up to 10 years and cost $2 billion for each new facility.  Consumers would pay at least 30 percent more at the pharmacy.

The last plug for self-sufficiency in medical equipment and medicines is that it’s not a good idea to depend on adversaries to keep us healthy. We don’t. What’s striking about medicines, medical equipment, and personal protective products is that market share is highly concentrated among allies. For example, Germany, the US, and Switzerland supply 35 percent of medical products sold worldwide. True, China leads the top ten list of personal protective products, at 17 percent market share, but the other nine, including the US at number three, are all longstanding allies. To be sure, the untold story of China is that it depends on Germany and the United States for nearly 40 percent of its medical products.

This past week, the WTO and the International Monetary Fund (IMF) called for an end to the folly of trade restrictions during this pandemic. The communique should have — but obviously couldn’t — call out governments around the world for maintaining, on average, a 17 percent tariff on soap. That tariffs on face masks average nearly 10 percent is baffling. That 20 countries in the WTO have no legal ceiling on the tariffs they impose on medicines is unforgivable.

Self-sufficiency in medical supplies and medicines is a political sop. It’s a narrative that can’t deliver anything but misery. If governments want to fight COVID-19, they should spend more time looking at how they’re denying themselves access to medical necessities, and less time on how to deny others the tools to save lives.

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Marc L. Busch is the Karl F. Landegger professor of international business diplomacy at the Edmund A. Walsh School of Foreign Service at Georgetown University and a nonresident senior fellow in the Atlantic Council.

irish

FIDDLING WITH IRISH MUSIC ROYALTIES IN THE WTO

The wee organization that took on the U.S. copyright system

Black Velvet BandMolly Malone, ,The Fields of AthenryWild Mountain Thyme and Danny Boy are among Ireland’s most famous exports. Irish bouzoukis, Uilleann pipes and Celtic harps render traditional Irish music as unmistakable as it is beloved – a cultural connection for millions of Americans to their roots.

Over ten percent of the population, or 32.6 million Americans, claimed Irish ancestry in a 2017 U.S. Census Bureau survey. That affinity (along with Irish beers and whiskeys) explains the popularity of Irish pubs throughout the United States.

The Irish music playlist broadcast in thousands of pubs and restaurants is why a small outfit called the Irish Music Rights Organization (IMRO) twenty years ago convinced the European Commission to sue the United States in the World Trade Organization (WTO). At issue is an exception in U.S. copyright law that enables U.S. businesses to play music without paying royalties to the creators. The United States lost the WTO case known as “Irish Music,” but has yet to restore rights to Irish performers.

American Irish

Pay to Play

Generally speaking, when copyrighted music is played in a small boutique, while getting a filling at the dentist, or to motivate your workout at the gym, the creators of the music are owed a royalty. It would be cumbersome for many such businesses to pay that directly, so performance rights organizations (PROs) collect licensing fees that they pass on to registered singers, songwriters and music publishers. In the United States, the two largest PROs are The American Society of Composers, Authors and Publishers and Broadcast Music, Inc.

Section 110(5) of the 1976 U.S. Copyright Act included a “homestyle exemption” to this rule that allowed small commercial establishments to avoid the royalty payment. A business could qualify for the exemption if it broadcasts through a single radio or audiovisual device that is of the type commonly used in one’s home. The Senate report accompanying the Act characterized such use as “for the incidental entertainment of patrons in small businesses and other establishments, such as taverns, lunch counters, hairdressers, dry cleaners, doctors’ offices, etc.” The provision became known as the Aiken exemption after the Supreme Court victory of George Aiken who played his radio for customers in his fast-food chicken restaurant.

Over the years, application of the law was repeatedly litigated due to its ambiguity. Rather than clarifying a narrow interpretation, Congress expanded the exemption through the 1998 Fairness in Music Licensing Act to allow all establishments under a certain square footage to play licensed music for their customers regardless of the type of sound system employed. Going a step further, Congress created the “business exemption” which allows businesses of any size to play licensed music if the number and location of loudspeakers is limited, if the establishment does not charge to see or hear the music transmitted, and if the broadcast is not transmitted beyond that establishment.

Broadcasting from both sides of our mouths

Article 9 of the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) requires WTO members to comply with Articles 1 through 21 of the Berne Convention for the Protection of Literary and Artistic Works that guarantee the rights of copyright owners. Any limitations or exceptions should be confined to certain special cases and should not “unreasonably prejudice the legitimate interests of the right holder.”

In 2000, a WTO dispute settlement panel agreed with the European Communities’ contention that section 110(5) of the U.S. Copyright Act violates the United States’ TRIPS obligations. The “homestyle exemption” as provided in section 110(5)(A) was deemed sufficiently narrow as to not prejudice the rights of copyright owners. Some 13 to 18 percent of U.S. business establishments would be covered. The “business exemption” in section 110(5)(B) however, expanded covered establishments to more than 70 percent of bars and restaurants (and 45 percent of retail), causing unreasonable prejudice to the legitimate interests of copyrights holders.

In other words, if the majority of food and drink establishments could avoid paying royalties to copyright holders of Irish music, the exception had become the rule.

70 percent exempted

An Irish goodbye

The United States accepted the panel findings and agreed to binding arbitration to determine a deadline for compliance and to determine the damages (known in WTO parlance as the level of “nullified or impaired benefits”) to the European Communities, which was set at 1,219,900 euros or about $1.1 million annually. Europe extended a December 31, 2001 deadline to provide time for the U.S. administration to work with Congress on an amendment to the copyright law.

The White House could not secure Congress’ approval so Europe agreed to negotiate a settlement. In June 2003, the United States and European Communities notified the WTO Dispute Settlement Body that the parties had reached a “mutually satisfactory temporary arrangement.”

The United States would make a one-time, lump-sum payment of $3.3 million covering a three-year period paid into a fund set up by European performing rights societies “for the provision of general assistance to their members and the promotion of authors’ rights.” The parties further agreed that, if the dispute has not been resolved three years on, they would enter into consultations to reach a durable resolution, foreshadowing what would become a never-ending exchange of letters.

In a November 2004 document labeled WT/DS160/24, the United States pledged to “work closely with the U.S. Congress and will continue to confer with the European Union in order to reach a mutually satisfactory resolution of this matter.” Every time Europe raises the outstanding item in WTO meetings, it is met with the exact same addendum to WT/DS160/24, restating the U.S. administration’s commitment (whether it be President George W. Bush, Barack Obama or Donald Trump) to work with Congress. As of February 2020, the United States had issued 179 such addendums.

US noncompliance

Unlucky

The WTO’s dispute settlement mechanism was designed to encourage members to resolve disputes through consultation. Consultations can sometimes avert use of formal dispute settlement procedures or avoid the imposition of retaliatory measures once a dispute settlement panel renders a decision.

The intent of consultations is to bring WTO-inconsistent measures into conformance with a member’s obligations. In the “Irish Music” case, the United States provided compensation rather than fix the offending measure (and Europe agreed as a temporary solution). But the WTO’s Dispute Settlement Understanding itself states that compensation should be resorted to “only if the immediate withdrawal of the measure is impracticable and as a temporary measure pending the withdrawal of the measure which is inconsistent with a covered agreement.”

In this case, the United States stretched “temporary” into twenty years of non-compliance, to the detriment of the rights of European music creators and the rights of other WTO members. The outcome also undercuts the very intellectual property rights the United States fought to include in TRIPS on behalf of American copyright holders.

Modern musical arrangements

In the meanwhile, sound systems and methods of “transmission” have evolved rapidly. Streaming delivers 75 percent of the music industry’s global revenues today. At this point, it seems pretty unlikely that your local Irish pub is using a radio on a shelf to play music.

The Recording Industry Association of American (RIAA) says charges for licensing account for 16 percent of total U.S. services exports. RIAA is working to ensure global copyright protections for sound recordings as digital products. Copyright enforcement in the digital realm requires measures to control access to content such as encryption and password protections, clarification of responsibilities by Internet service providers that may play host to copyright-infringing websites, and enforcement actions against so-called “stream-ripping” sites that allow free downloads of copyright-protected recordings. This may require new provisions in trade agreements, even as the United States remains out of compliance with some of its old commitments regarding “Irish Music” copyright protections.

We’re all Irish on St. Paddy’s Day

In its 1995 appeal to the EC to bring the Irish Music case, the Irish Music Rights Organization argued that the Chieftains, The Pogues, and other European creators lose as much as 28 million euros each year, not to mention hundreds of millions for American creators whose royalties also go unpaid.

Instead, it’s American bar crawlers who unknowingly benefit. Now that you know, this St. Paddy’s Day, you may as well hoist a Guinness to toast the U.S. copyright law exception that enables you to belt out a rendition of Molly Malone as it plays on the sound system – for free – at your local Irish pub.

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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.

This article originally appeared on TradeVistas.org. Republished with permission.

WTO

Erasing the Global Gains from the WTO Government Procurement Agreement?

Government purchases are a trillion-dollar opportunity for U.S. businesses

Governments buy a wide variety of goods and services from the private sector, from bridges and road construction to power plants and digital infrastructure to office and hospital supplies. In 2018, global government procurement amounted to $11 trillion or 12 percent of global GDP. The U.S. government procurement market alone was $837 billion in 2010.

While most countries have regulations to ensure government procurement is handled in a fair and transparent manner, procurement processes are susceptible to a high incidence of corruption, particularly in the form of undue influence on the bidding outcomes of public contracts.

Enter global procurement trade disciplines

The first agreement on government procurement – called the “Tokyo Round Code on Government Procurement” – was negotiated in 1979 by a small group of countries who wanted to develop a set of harmonized rules governing public procurement that would set a high standard for transparency and openness. That agreement was subsequently renegotiated as the Agreement on Government Procurement (GPA) in 1994 as part of the creation of the World Trade Organization (WTO), and members agreed to further expand the GPA in 2012. As of May of last year, when Australia became the most recent member to join the GPA, 48 countries were party to the Agreement, with 34 countries having observer status (including 10 of those in active negotiations to join the agreement). The GPA now covers $1.7 trillion in government procurement activities from its member countries.

The GPA includes general disciplines to ensure fair, open and transparent procurement processes for products that exceed a dollar threshold specified by the agreement. Additionally, each country has committed to a “schedule” which specifies which of its entities and purchases are subject to the agreement. Countries typically exclude defense and national security purchases from the agreement as well as set-asides for small, minority-owned and veteran-owned businesses. Disputes under the GPA can be raised through the WTO dispute settlement system.
value of global procurement

Some WTO members but not all

The GPA is a so-called “plurilateral” agreement, meaning only a subgroup of WTO member countries are party to it, and therefore the WTO’s most-favored-nation principle does not apply. Rather, the countries that are parties to the agreement grant each other access to their government procurement markets under the terms of the GPA, but that access is not offered to WTO member countries that are not GPA members.

The United States includes similar procurement language from the GPA in its bilateral free trade agreements, like the recently negotiated U.S.-Mexico-Canada Agreement. All told, the United States has procurement agreements with 58 countries, including the GPA countries and countries with which it has separate free trade agreements.

Even for countries that are not GPA members, the rules in the agreement have become the accepted norms for government procurement globally, with most countries aspiring to this level of fairness and transparency, even if they don’t implement the GPA fully.

The relationship between GPA and “Buy American” requirements

Prior to the GPA, Congress enacted a series of domestic content statutes to ensure that public procurement projects funded by U.S. tax dollars benefit U.S. firms and workers. The Buy American Act of 1933 requires federal government procurement of U.S.-origin articles, supplies and material or manufactured products to be produced “substantially all” from domestic inputs. While equipment can have a minimal amount of foreign content to qualify, the allowed amount is extremely low. The act generally also allows a price preference for domestic end products and construction materials.

Buy American requirements may be waived under three circumstances: (1) if a decision is made that it is in the public interest to do so; (2) if the cost of U.S.-made products is unreasonable; or (3) if the products are not available in sufficient quality or quantity from U.S. producers. Since the GPA was negotiated, a fourth circumstance was introduced: Buy American can be waived with respect to procurement bids originating from countries that have provided reciprocal access to their own domestic procurement markets.

A push for expansion?

The Trump administration is reportedly reviewing the benefits of the WTO’s Government Procurement Agreement. As reported to the WTO, the United States offered more procurement opportunities to foreign firms in 2010 (the last year for which data are available) than the next five largest GPA parties combined, which include the European Union’s 27 members, Japan, South Korea, Norway and Canada. The United States may open as much as 80 percent of federal contracts to foreign suppliers, whereas the European Union, Japan and Korea may open somewhere between 13 and 30 percent of central government contracts to foreign suppliers.

However, a U.S. government review that offered those calculations also points out that lags and inconsistencies in foreign government data reporting, data gaps, and a lack of methodology for reporting on sub-federal procurement, make it difficult to determine GPA benefits with accuracy.

And while foreign suppliers are able to compete for certain U.S. government contracts, the GPA and bilateral free trade agreements enable U.S. companies to compete in the nearly $2 trillion dollar government procurement market in the other signatory countries, an opportunity that would be significantly limited by withdrawal from the GPA. In many cases, such as sales of medical devices and medicines to state-run hospitals, software for government agency use, sales of power equipment, and the construction of hard infrastructure, the GPA offers the primary form of access by U.S. companies to foreign markets.

Worse than losing reciprocity

Ironically, American withdrawal from GPA would also complicate the ability of U.S. companies to sell their products to the U.S. government. Very few U.S. products today are 100 percent American. Supply chains of U.S. companies are increasingly global, meaning that even products manufactured within the United States are likely to have non-U.S. components or materials. Today, U.S. companies selling equipment to the U.S. government containing non-U.S. content from a GPA signatory country are not subject to the Buy American Act. However, if the United States were to withdraw from GPA, Buy American regulations would apply, potentially disqualifying U.S. companies from selling products that contain foreign content to the U.S. government.

Participation in the GPA not only maintains U.S. companies’ ability to compete for foreign contracts, it also gives the U.S. government leverage to negotiate greater market access under better terms by seeking to expand coverage. This may be particularly important as economies grow around the world and begin to spend higher percentages of their budgets on government procurement. Also, the race is on to set technology standards around the world such as 5G. If U.S. companies cannot bid to secure government contracts, they may find themselves on the outside of key growth markets, ceding them to competitors from Europe, Canada, Japan and China.

Another way to improve the WTO

While the global trade rules in the GPA seem like an arcane subject, the agreement has had a profound impact on government procurement practices globally. It opened an enormous government procurement market for the signatory countries – including the United States – and created a set of open and transparent regulations that even non-signatories countries work toward. Working within the agreement to improve and expand coverage would benefit U.S. suppliers not just to compete overseas, but to compete for contracts here at home.

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Orit headshot

Orit Frenkel is the Executive Director of the American Leadership Initiative, which is advancing a new smart power paradigm of American global leadership. She is also the President of Frenkel Strategies, a consulting firm specializing in trade and Asia. Previously she spent 26 years as an executive for GE and before that as a trade negotiator at the Office of the U.S. Trade Representative.

This article originally appeared on TradeVistas.org. Republished with permission.

world trade

Simon Paris, Chair of the World Trade Board & CEO of Finastra, Provides a Snapshot of this year’s World Trade Symposium

Protecting world trade from the current vicious cycle of trade tensions makes it imperative that those in a position to effect change – public and private sectors – work together; quickly and cohesively. Chairman of the World Trade Board and CEO of Finastra, Simon Paris, discusses three ways in which committed organizations can bring about a new pro-trade paradigm, even against the backdrop of today’s protectionist narrative, to lift people out of poverty globally and enable long-term growth and prosperity for all.

Across the globe, protectionist rhetoric and policy initiatives have become increasingly normalized. Tensions and tariffs continue to escalate with the World Trade Organization estimating that $339.5bn1 in trade is now at risk from import restrictions – the second highest level ever recorded. Amidst this trend, we as business leaders, policy makers, and engaged thinkers must deepen our commitment to free and open trade benefiting communities and workers.

The path to open trade and ensuing economic growth is under shadow. The global economic uncertainty2 risk index hit an all-time high this year. Ongoing friction between the United States and China has not only caused a tangible 12% drop in US imports from China, but triggered aftershocks across other Asian economies as a result of closely integrated supply chains3. Japan and Korea have made headlines with their own trade war that risks their trade relationship worth about $85 billion a year4 and the future economic relationship between the United Kingdom and the European Union amidst Brexit is uncertain.

In response free traders should commit to three acts of solidarity, with the aim of reversing – or as an absolute minimum, reducing – the pervasive change that continues to threaten trade as we know it.

Three commitments that will drive change

Firstly, we must be persistent in our reinforcement of the pro-trade narrative; uniting to protect and promote open trade as the unequivocal foundation for global prosperity and economic inclusion. Secondly, we must continue to investigate ways in which we can reduce the SME funding gap, currently estimated at $1.5 trillion5, which is precluding both innovation and financial independence on a global scale. It is imperative that we seek out new ways to free up finance or neutralize the perceived risk of lending to small firms. At a time where the least developed countries represent less than 1% of world exports6, we must find solutions that unlock the latent value within SMEs to stimulate competition, innovation and economic growth, and reduce the disparity of wealth in a sustainable way.

Finally, we must examine how open technology can act as the enabler for inclusive, sustainable trade. As global supply chains become increasingly complex, our goal should not be measured on a binary figure of turnover or profit, but on the ethical and sustainable impact of our technological innovation; our technological social responsibility (TSR). How can we use technology, collectively, to ascertain the provenance of materials, improve the health and wellbeing of workers in remote locations, reduce the cause and effects on environment pollution of long-distance transportation or minimize the impact of waste and disposal? How can we use open finance technologies – and by this, I include open systems, open software, open APIs, open standards and open partner networks – to transform supply chains and encourage the formulation of more relevant and inclusive trade models, in support of ethical trade?

Protecting against threats, known and unknown

A global marketplace helps ensure a sustainable model of financial inclusion that protects future generations against wealth disparity and isolation. I believe that it is only through a powerful combination of forward-thinking policies, collaborative mindsets and funding, underpinned by open finance technology, that we can deliver the change so desperately required, that promotes equality and opportunity, and reverses the trend of poverty and protectionism. It is time to find solutions to today’s threats to open trade and together protect against further polarization and the unseen threats of tomorrow.

Simon Paris will be opening the third World Trade Symposium, held in the Grand Hyatt, New York on 6-7 November. The event brings together policy-makers, trade finance luminaries and thought leaders to openly collaborate and effect change. Register Today!


1. https://www.wto.org/english/news_e/news19_e/trdev_22jul19_e.htm

2. http://policyuncertainty.com/

3. https://www.oecd.org/newsroom/international-trade-statistics-trends-in-first-quarter-2019.htm

4. https://www.nytimes.com/2019/08/28/business/japan-south-korea-trade.html

5. https://www.wto.org/english/news_e/spra_e/spra241_e.htm

6. https://www.wto.org/english/res_e/statis_e/wts2019_e/wts2019_e.pdf

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Simon takes responsibility for Finastra’s strategic direction and growth. His leadership steers the company as it realizes its open platform vision, encouraging industry-wide collaboration to spark innovation and transform the next generation of financial services.

A firm believer in the principles of doing well by doing good, Simon chairs the World Trade Board and is passionate about how technology and open trade can drive financial inclusion and improve people’s lives.

An inspiring and trusted Fintech thought leader, Simon speaks regularly at large-scale events including the annual World Trade Symposium, Paris FinTech Forum and The Milken Asia Summit. He is a strong advocate for diversity and inclusion, with refreshing and candid views on equality in the workplace. He was also named in Bank Innovation’s ‘Innovators to Watch’ list for 2018.

Simon joined Finastra (formerly Misys) as President in 2015, was appointed Deputy Chief Executive Officer in 2017 and became Chief Executive Officer in June 2018. He brings more than 20 years of sales, management and global leadership expertise to the company, having previously held the role of President, Industry Cloud, at SAP. Prior to that he was a senior consultant with McKinsey & Company.

He holds a degree in Business Administration (MBA) from the INSEAD Business School in France and a Bachelor’s degree in Business & European languages from the European Business School.

carousel

CAROUSEL RETALIATION: TARIFF UNCERTAINTY ON ANOTHER RIDE

The Ride Music Starts

On October 2, a World Trade Organization (WTO) arbitrator rendered a decision that authorizes the United States to apply retaliatory tariffs on as much as $7.5 billion worth of European exports each year until WTO-illegal European subsidies to its aircraft industry are removed.

In a press release issued that day, the U.S. Trade Representative (USTR) announced that beginning October 18, the United States would apply WTO-approved tariffs on a list of EU products. The list includes 10 percent duties on civil aircraft, but also 25 percent duties on goods we consume directly including butter, various cheeses, clementines, clams, green olives and single-malt Irish and Scotch Whiskies.

Before their next cocktail party, U.S. shoppers might stock up to beat the tariffs, but they may not want to go overboard buying Parmigiano Reggiano. That’s because the Administration is reportedly considering what is known as “carousel” retaliation – a regular rotation of goods targeted for tariffs, designed to impose maximum pain. The United States and Europe have been on this ride before.

Theme Park Rules

In a trade dispute, the parties first enter into consultations. If they are unable to come to an agreement, the complainant may request a WTO panel to review the dispute. Once the panel issues a report, the WTO Dispute Settlement Body (DSB) will adopt it, unless a party appeals it or all DSB members vote against adoption.

If there is an appeal, the Appellate Body reviews the case and delivers its findings, together with the panel report as modified by the appeal, to the DSB. If the complaining party wins, the losing party is given a “reasonable” period of time to implement the decision. The original panel may be called upon to determine if the losing party implemented the ruling in the agreed timeframe. If not, there are two alternatives for the party bringing the case: seek compensation or retaliate. In the latter case, the complainant estimates its loss, the losing party can seek arbitration on the level, and the DSB authorizes the final amount.

Such countermeasures should be “equivalent” to the injury caused and “related to” the economic sector of the illegal measure, with the goal to induce the removal of the offending measure. Often the offending party will, in fact, withdraw the measure before the imposition of authorized retaliatory measures.

US wins 7.5 billion dispute against EU on Airbus illegal subsidies

Beef and Bananas – How Carousel Started

In some cases, applying tariffs on imports isn’t enough to induce compliance. When the United States, Ecuador, Honduras, Guatemala and Mexico won their case in the WTO challenging the legality of Europe’s banana import policy, the European Union (EU) failed to comply with the ruling, even in the face of nearly $200 million in U.S. tariffs.

U.S. banana exporters, increasingly frustrated with the EU’s lack of compliance with the WTO ruling, looked to Congress to enact a new tool to increase the pressure. They found allies in U.S. livestock exporters, who had won a WTO case that a European ban on U.S. imports of meat produced with hormones was inconsistent with the EU’s WTO obligations. As with the banana case, the EU had employed delaying tactics to stall implementation of the panel decision against it.

Riding a New Horse

Two months after USTR imposed retaliatory tariffs in the beef hormone dispute, a group of Senators introduced S.1619, the Carousel Retaliation Act of 1999. Proposed as an amendment to Section 301 of the Trade Act of 1974, its provisions would have required USTR to “carousel” or rotate its product retaliation list when an offending country does not implement a WTO decision. More specifically, USTR was to rotate items 120 days after the first retaliation list and every 180 days thereafter, with the ability to opt not to do so if compliance is imminent or rotation is deemed unnecessary. The bill language ultimately became part of the Trade and Development Act of 2000.

While banana and meat producers were supportive, other industries were not. Some argued that frequently rotating the products subjects to tariffs would be challenging for retailers. The EU contended the method was WTO inconsistent, though the WTO never ruled on the matter.

USTR ultimately did not pull the trigger to rotate its retaliatory tariff list in either the banana or beef cases as the matters got bound up in a separate dispute over U.S. tax benefits for foreign sales corporations (FSC). The EU had previously won a case against FSC and the U.S. amended its law in November 2000 in response. The EU challenged whether that revision brought the measure into WTO compliance. The United States and EU agreed informally that the EU would not pursue sanctions in the FSC case, but if the United States revised its product lists under the carousel provisions, all bets were off. Ultimately, the WTO ruled the revised U.S. law was not compliant, the United States lost its appeal, and the issue was not resolved until five years later.

Others Get on the Ride

The United States develops retaliation lists with an eye to maximizing pain on the trading partner that committed the foul, while trying to minimize the inevitable adverse impact on its own consumers and firms. Mexico has adeptly turned this practice against the United States in response to practices it viewed as inconsistent with WTO or NAFTA obligations.

NAFTA provisions governing retaliation state that an injured party should first “seek to suspend benefits in the same sector” as that covered by the restrictive measure. If it is not practical or effective to suspend benefits in the same sector, the injured party “may suspend benefits in other sectors.”

During the original NAFTA negotiations, the United States and Mexico agreed to phase out restrictions on cross-border passenger and cargo services. In 1995, however, the United States announced it would not lift restrictions on Mexican trucks and, in 2001, a NAFTA dispute panel found the U.S. to be in breach of its obligations. After years of negotiation and a false start with a U.S. pilot program, Mexico retaliated in 2009 on more than $2 billion worth of U.S. goods.

Mexico used a carousel approach, rotating different products on and off the retaliation list. The first list of 89 products went into effect in March 2009. The list was revised in August 2010, by removing 16 of the listed products and adding 26 more, bringing the total number of products on the updated list to 99. Through this method, Mexico was able to target key pain points, leading the U.S. to institute another pilot program in 2011, and Mexico to remove its tariffs.

More recently, when the Trump Administration moved forward with 25 percent tariffs on Mexican steel imports and 10 percent tariffs on Mexican aluminum imports in June 2018, Mexico responded with retaliatory tariffs on $2.7 billion of U.S. goods that included various steel products but also pork legs, apples, cheese and other agricultural products that had seen significant growth in export value and market share in Mexico.

In March 2019, Mexico’s Deputy Economy Minister Luz Maria de la Mora stated that if the United States did not repeal the tariffs, her government would have an updated list in its “carousel” of U.S. targets ready in about two months, noting that Mexico would bring in some new products and remove others. In early May, she announced the revised list was ready and under final review, but the United States agreed in mid-May to remove its tariffs, hoping to boost the chances of ratification of the U.S.-Mexico-Canada (USMCA) agreement.

Round and Round We Go

Perhaps symbolic of the differences that the United States and Europe are trying to bridge, in America carousels turn counterclockwise and in England and much of Europe, they rotate clockwise.

Some observers see the recently announced U.S. retaliation list against the EU as more restrained than expected. Tariff rates of 100 percent had been possible and some of the announced exemptions were not anticipated. We’ll soon know more about the Trump Administration’s thinking on a carousel approach and how the Europeans will respond. There are no height restrictions to get on this tariff retaliation ride, but riders may need to buckle up.

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Leslie Griffin is Principal of Boston-based Allinea LLC. She was previously Senior Vice President for International Public Policy for UPS and is a past president of the Association of Women in International Trade in Washington, D.C.

This article originally appeared on TradeVistas.org. Republished with permission.

Multilateral Trade Negotiations Continue

Austria is the latest country to step up and contribute to support developing and least-developed countries (LDCs) and thier participation in global trade efforts. A total of 400,000 EUR was donated last week to assist in financing trade workshops with an overall vision of successful implementation of WTO agreements, according to a release from WTO.

I firmly believe that the multilateral trading system, particularly the World Trade Organization, plays an essential role in boosting international trade and helping improve the livelihoods of millions of people in both developed and developing economies. Through our contribution to the Trust Fund, we aim to help developing economies integrate into world trade and contribute more actively to the world economy,” Austria’s Federal Minister for Digital and Economic Affairs, Margarete Schramböck, said.

This donation is one of many over the last 15 years from the country of Austria, totaling $15 million EUR towards funds for the WTO. As more developing countries are educated and supported in trade education initiatives, global trade efforts will present more opportunities for industry players.

“I want to thank Austria for supporting WTO trade-related programmes aimed at enhancing the capacity of developing countries and LDCs to trade and to fully participate in multilateral trade negotiations. Austria’s generous donations are very welcome,” said Director-General Roberto Azevêdo.

Source: WTO

WTO: Global Customs Agreement Deal In a Fortnight

Los Angeles, CA – There is a “high probability” that a major deal on streamlining global customs rules will be implemented within two weeks now that the U.S., the European Union and India have reached a compromise agreement on agricultural subsidies.

India said it will sign the Trade Facilitation Agreement (TFA) as the U.S. and the EU have said they will accept India’s demand that it be allowed to stockpile food without observing the usual World Trade Organization rules on government subsidies and that developing countries be provided flexibility in fixing minimum support price for farm products.

India’s stand plunged the WTO into a crisis that effectively paralyzed the global trade group and risked derailing the customs reforms that are seen affecting an estimated $1 trillion to global trade.

“I would say that we have a high probability that the Bali package will be implemented very shortly,” said WTO Director-General Roberto Azevedo. “I’m hopeful that we can do it in a very short period of time, certainly within the next two weeks.”

Implementation of all aspects of the Trade Facilitation Agreement package, he added, “would be a major boost to the WTO, enhancing our ability to deliver beneficial outcomes to all our members.”

Azevedo made his comments ahead of the recent Group of 20 Leaders Summit in Brisbane, Australia.

The compromise U.S./EU/India agricultural subsidy deal included no major revision of the original WTO deal struck last December, which provided for India’s food stockpiling to be shielded from legal challenge by a “peace clause.”

A food security law passed by India’s last government expanded the number of people entitled to receive cheap food grains to 850 million.

India recently disclosed that its state food procurement cost $13.8 billion in 2010-11, part of the total of $56.1 billion it spends on farm support. Wheat stocks, at 30 million tons, are more than double official target levels.

The deal, which needs to be backed by all 160 WTO members, has resurrected hopes that the trade body can now push through those reforms, opening the way up for further negotiations.

11/19/2014

WTO Downgrades Trade Growth Forecasts

Geneva, Switzerland – The World Trade Organization has reduced its forecast for world trade growth in 2014 to 3.1 percent, a significant drop from the 4.6 percent it made in April.

In addition, it also cut its estimate for 2015 to 4.0 percent from its previous 5.3 percent forecast.

The downgrade “comes in response to weaker-than-expected GDP growth and muted import demand in the first half of 2014, particularly in natural resource exporting regions such as South and Central America,” the global trade group said.

Beyond the specific downward revisions, it said, “risks to the forecast remain predominantly on the downside, as global growth remains uneven and as geopolitical tensions and risks have risen,” while “international institutions have significantly revised their GDP forecasts after disappointing economic growth in the first half of the year,” said WTO Director-General Roberto Azevêdo.

When the last forecast was released in April 2014, conditions for stronger trade growth seemed to be falling into place after a two year slump that saw world merchandise trade grow just 2.2 percent on average during 2012–13, with leading indicators at the time pointing to an upturn in developed economies and Europe in particular.

“Although growth has strengthened somewhat in 2014, it has remained unsteady,” the WTO said with output in the US during the first quarter of this year falling by –2.1 percent, annualized rates and in the second quarter in Germany by –0.6 percent, “sapping global import demand.”

China’s GDP growth also slowed from 7.7 percent in 2013 to 6.1 percent in the first quarter of this year before rebounding in the second. The slow first quarter contributed to weak exports in trading partners.

“As a result of these and other factors, global trade stagnated in the first half of 2014, as the gradual recovery of import demand in developed countries was offset by declines in developing countries,” the WTO said.

Growth in trade and output “is expected to be somewhat stronger in the second half of 2014 as governments and central banks may provide policy support to boost growth, and as idiosyncratic factors such as harsh weather conditions in the US and a sales tax rise in Japan weighted on trade in the first half of this year begin to fade.”

However, the WTO said, “several risk factors on the horizon have the potential to produce worse economic outcomes.”

For example, it said, tensions between the European Union and the US on the one hand and the Russian Federation on the other over Ukraine have already resulted in trade sanctions on certain agricultural commodities, and the number of products affected could widen if the crisis persists.

At the same time, the continuing conflict in the Middle East “is also stoking uncertainty, and could lead to a spike in oil prices if the security of oil supplies is threatened.”

This is the moment, he said, “to remind ourselves that trade can play a positive role here. Cutting trade costs and broadening trade opportunities can be a key ingredient to reversing this trend,” said the WTO’s Azevêdo.

09/24/2014