CLASS # 1: "INTROD. TO GLOBAL TRADE & WTO." (Part I) 1.23.17
Video: "From GATT to WTO -- Achievements & Challenges.") (Online Video). (Outline).
Malawer, "Trade Agreements & Uruguay Round." U.S. LAW AND GLOBAL TRADE (Basic U.S. Approach to Trade Treaties -- # 47 - # 54).
USTR Trade Policy Agenda (2013).
USTR Trade Policy Agenda 32-39 (2015) (WTO, Enforcement and China).
"U.S. Trade Agenda 2016." 4-5, 41-42, 55-57 (USTR) (March 2016) (Enforcement and Flow Chart of Trade Legislation and Agreements).
"Trade and Missiles." Financial Times (2013).
"Economic Losers in Revolt Against Elites (and Globalization)." Financial Times (January 27, 2016).
"More Wealth & Backlash on Trade."New York Times (Sept. 28, 2016).
- * How has the definition of trade changed from 1945 to today, in some 70 years?
- What is the basic approach to U.S. regulation of international commerce and making trade agreements?
- What was Obama trade agenda? What did it indicate about regional and multilateral negotiations?
- What seems to be some of President Trumps views concerning trade and the multilateral system?
- What has been the trade issue during the Presidential election (2016) on terms of a changing global and domestic economies (from 2000-2016) especially the impact on labor in the U.S. and worldwide?
- * What is the growing role of trade policy as it relates to national security issues in the U.S.?
- Why are global trade issues and globalization (WTO and the DSU in particular) becoming critical and central to both foreign policy and domestic politics? What is the threat of terrorism to global trade?
- What are some questions concerning China's role in the WTO and global trading system?
- * What are the most important articles of the GATT Agreement and what do they provide?
- * What are the main characteristics of the WTO system as it was established in 1995 at the conclusion of the Uruguay Round?
- What is the role of 'unanimity' ('consensus') as the governing principle for WTO decision-making?
- What is the place of the WTO system within the larger international legal system? What is the role of the WTO in global governance?
- What is the role of the dispute resolution system within the context of governance?
- * What is the notion of a rules-based system where rules are negotiated and then adjudicated by the WTO?
- * What is the most-favored nation principle (GATT Article 1) and the national treatment principle (GATT Article 3)? How are they related to the principle of non-discrimination?
- * What is the relation of the GATT to the Havana Charter and to the post-war economic system (IMF & World Bank)?
- *What are the "Singapore Issues" and Singapore Agreements (1997)."
- What are some of the most important existing and newer trade issues today? Commercial cyberespionage (theft of intellectual property rights)? By China? By the U.S. / NSA? Failure of globalization and the WTO & Doha to help many since the financial crisis of 2008?
- What is the role of the WTO in the trade enforcement policy of the U.S.?
- *How would you explain the provisions of the GATT in terms of general rules and exceptions?
CLASS # 2 : ........ (Part II).
Malawer (2007) 282-443.
GATT (Articles 1, 3, 6, 16, 19, 20, 21) (Edited GATT 1947).
Malawer, "Trade Agreements & Uruguay Round." U.S. LAW AND GLOBAL TRADE (Basic, WTO Agreements & Non-Discrimination Principle -- #60 - #66) --- continued.
Video: "To the Heart of the WTO (Brazil and Norway)." (Online video) (Outline).
What is the impact of globalization on U.S. export and trade policies today?
What is meant by 'binding tariffs' and what are the range of tariffs as to tariff comitments? What is the issue of classification of tariff?
* What are the GATT provisions governing dumping, subsidies, and safeguards? security exception?
* What are the articles of GATT governing export restrictions, exchange arrangements, export taxes, general exceptions?
* What was the unkept promise of Uruguay?
* How would you describe the agricultural issue within the Doha round?
- What is the concept of the "multifunctionality of agriculture"?
- What are the "three pillars" of agriculture negotiations?
- Why did Doha fail?
- What did Doha do concerning pharmaceutical patents and public health?
What issues are the developed countries primarily interested in at Doha / Bali and subsequently?
What about the Singapore issues?
- Will bilateral agreements and regional trade agreements (RTA) supplant the DOHA approach?
* What about greater reliance on "plurilateral agreements over multilateral ones? Such as the new Information Technology Agreement [ITA] (as a sectorial agreement with limited membership)? What about the Trade Faciitation Agreement (TFA)?
What is the future of the WTO and multilateral trade negotiations after Bali, and Doha What does 20 years of WTO history disclose?
What is the relation of the U.S. values and legal and institutional influences on the global trading and indeed global system today?
What is the future of this global trading system, which the U.S. was the architect for, and based on the U.S. proposals ("rules of the road" and institutions)? Who is challenging them and what about U.S. policy concerning them today? Is U.S. support for them dwindling?
CLASS # 3: "WTO--DISPUTE RESOLUTION SYSTEM." (PART I).
Malawer (2007) 213-247, 308-327 (Articles 3, 19, 21, 22).
Video: "Solving Trade Disputes." (Online video) (Outline).
Malawer, "World Trade Organization & Dispute Resolution." #27 - #40 (Basic Provisions and Procedures), #41-58 (Observations).
- *What is the significance of the U.S. - Venezuela Reformulated Gasoline Case?
- *What is the impact of decisions of the panel or Appellate Body (DSU Article 19)? What is the relevance of this to sovereignty?
- * What is the nature of sanctions under the DSU (DSU Articles 22)?
- What is the role of developing states in the DSU over the last 25 or so years?
- What were the expectations of the WTO members concerning the DSU in 1995? Have they been met? What are they today?
- *What are the major procedural stages in litigation within the DSU?
- *How are sanctions authorized?
- What role does the WTO have concerning export restrictions?
- What is the impact of litigated decisions in the WTO system? What is the role of precedent in the dispute resolution system?
- *What does the record of China's litigation in the WTO indicate about trade relations with the U.S?
- *Why hasn't a case been filed concerning Yuan valuation? What's the significance of a lower Yuan exchange rate on Chinese export prices? What has been the issue of currency valuation in trade relations generally and as of today? What is the view of the Trump administration?
- What is the issue of 'sovereignty' under the DSU?
Class # 4 ........ (PART II).
Malawer (2007) 443-675, 788 - 890.
Malawer, "U.S.-China Litigation in the WTO (2001-2014)." International Law Practicum (2014).
Malawer, "U.S.-China Litigation in the World Trade Organization." New York Law Journal (2013).
Lamy, "WTO and China Trade Cases. " Financial Times (2012).
"China and WTO Litigation ." Washington Post (2012).
"Obama and WTO Litigation and China." Global Lawyer (2015).
Malawer, "Chinese Economic Cyber Espionage -- U.S. Litigation in the WTO & Other Diplomatic Remedies." Georgetown Journal of International Affairs (Summer 2015); Malawer "Confronting Chinese Economic Espionage with WTO Litigation." New York Law Journal (2014).
Malawer, "Trump's China Trade Policies: Threats and Constraints." 3 China and WTO Review 109 (No. 1)(March 2017).
New Pending US - China WTO Cases (2016):
Note on American Sovereignty and the DSU:
- * Is the litigation approach becoming too predominant? How is the DSU different from traditional arbitration?
- *What is the role of diplomatic negotiation in the dispute resolution process?
- *Has the negotiation of new rules by the WTO been surpassed by the dispute resolution system?
- What has been the history of U.S. trade litigation in the WTO?
- *What has been the experience of Chinese trade litigation in the WTO and especially with the U.S.? Has China implemented the recommendations?
- Have recent WTO actions been mostly politically driven by domestic considerations in both China and the U.S.?
- What are some suggestions to revise the dispute resolution system?
- *What is the significance of the U.S. filing of broad based actions against China in the WTO (2007-2017) in terms of U.S.-China trade relations?
- What will be the impact on U.S.-China trade relations generally?
- What has been China's response?
- What has been the impact of U.S.-China trade relations in U.S. foreign policy generally?
- What has been the role of different U.S. business sectors (interest groups and lobbies) on U.S.-China trade policy?
- What is the significance of the history of cases filed and the number of appeals?
- *What issues do State-Owned Enterprises (SOE) and "non-market economies" pose in subsidy cases? What about non-market status /market status in dumping cases?
- What is the issue of 'zeroing'in anti-dumping cases?
- What are the newer cases filed by the U.S. and China since 2016? What is the 'Security Exception" (Article XX! and as to'essential security interests'? As to possible litigation by a state against trade sanctions? By a state relying on cyberespionage?
CLASS # 5: "SELECTED ISSUES."
Malawer (2007) 239-256, 251-260, 675-683, 739-754, 1040-1203, 1205-1290.
ADDITIONAL WTO TRADE CASES.
"Sanctions under Article 22.2 -- Overview of the State of Play -- DSB Annual Report (2014)."
USITC & USTR, COURT OF INTERNATIONAL TRADE (CIT), TRADE REMEDIES & TRADE BARRIERS.
Malawer, "Import Relief Legislation, Retaliation and Trade Sanctions." U.S. LAW AND GLOBAL TRADE # 21 - # 37.
- * What is the role of the U.S. International Trade Commission and the International Trade Administration (ITA) in determining trade remedy cases in the U.S.? What is the Court of International Trade?
- In what sense does the DSU 'override' the ITC / ITA and what is this impact on 'US sovereignty'?
- * What are the main provisions of the Antidumping Agreement? How is dumping determined?
- * What are the main provisions of the Subsidies Agreement?
- *What are the various subsidies? 'Actionable' subsidies and 'prohibited' subsidies (export subsidies)?
- How are subsidies determined?
- * What is the "Illustrative List of Export Subsidies"?
- Which are the most used?
- * What does the GATT state as to export restrictions?
- * What is the importance of "commitments" to the Services Agreement (GATS)? How is this different from the GATTS?
- * What are the main provisions of the Safeguard Agreement? When safeguard relief allowed?
- What has been the recent use of the above national trade remedy actions globally?
- What is the legality under the WTO of the proposed U.S. legislation considering currency devaluation in determining an export subsidy (a "prohibited subsidy")? Under Article XV ("Exchange Rates")? What does Article XV say about 'coordination' and 'frustration'?
- *What is the distinction between “fair” and “unfair” trade legislation? What are three major import relief actions?
*What U.S. agencies are involved in trade remedy enforcement? What determinations do they make as to A/D and CVD?
What is the significance for trade policy of market access enforcement?
*Is Section 301 consistent with the U.S. WTO obligations? What is the difference between the mandatory and discretionary authorities within Section 301?
*What is the significance of Section 337 actions (intellectual property rights and imports) and how are the possible violation of the national treatment principle?
What is the "mandatory and discretionary (unjustifiable and unreasonable)" aspects of Section 301 Retaliation?
How active are foreign countries in their trade remedy enforcement in their agencies?
What is a 'border tax' and what is the validity of it under the national treatment principle and export subsidy rules? Specifically as to tax deferral on export income and tax on imports (denial of 'expensing' of imports by US buyers) under the Subsidies Code / Illustrative List (Annex I)?
CLASS # 6: PRESENTATIONS--U.S.-CHINA DSU TRADE CASES (PART I).
CLASS # 7: .......... (PART II).
No Class 3.13.17 (SPRING BREAK)
CLASS # 8: MID-TERM REVIEW.
CLASS # 9: MID-TERM EXAM
CLASS # 10: "U.S. CONSTITUTION & GLOBAL TRADE POLICY."
Malawer, U.S. LAW AND GLOBAL TRADE # 47 - 51, #53 - 54 (Cong. authority, Separation of Powers, Federalism, Int'l Agreements).
* What is the principle of federalism and how does it relate to trade policy and the role of states in global trade?
* What is the "principle of preemption"?
What is significance of the "Supremacy Clause" (Article VI) concerning federal law and state law?
* What is the doctrine of separation of powers? What is the principle of delegation of authority?
How do the these above concepts relate to the powers of the Congress and the President in the formulation and conduct of trade relations?
* What is Article 1, Section 8, Clause 3 as to the power of Congress?
* How are formal treaties and executive agreements different? How are they federal law (Constitution & precedent)?
* What is “fast track authority” or “Trade Promotion Authority”?
What is the dual nature of trade agreements as to international obligations and domestic law?
What is the role of states in global trade and their status under international trade rules"? Can states impose trade and financial sanctions impacting global commerce?
What is the notion of commercial diplomacy? How do states engage in this?
CLASS # 11: "EXTRATERRITORIALTY OF TRADE RULES -- Antitrust & Sovereign Immunity/ Act of State Doctrine/ Alien Tort Statute." (PART I).
U.S. v. Alcoa (2d Cir. 1945) (Extraterritoriality and International Antitrust).
Note: 'Act of State Doctrine', Sabbatino Case (1964) and 'Sabbatino Amendment' (I.L. Violation and Expropriations).
* What is the issue of "multijurisdictional world" and "global transactions"?
What U.S. legislation is applied extraterritoriality?
* What is extraterritoriality what is the "presumption of territoriality"? What is the "presumption against extraterritorialty" of legislation?
* What is the "effects principle"? What is the "reasonableness principle"?
What is the difference between operating through a "branch" as opposed to a "subsidiary"?
* What are the facts of the Alcoa Case (1945) and the legal principles it relied upon and established?
*What has the OECD and the EU done in the area of restrictive practices and competition rules?
*How were these type of issues treated by the ITO ? Havana Charter in 1947? Singapore Conference & Doha?
How is competition treated under the WTO agreements?
What is the current status of competition rules within the WTO?
What are other examples of extraterritorial application of U.S. economic legislation?
What has the recent Supreme Court decisions stated at to the extraterritoriality of the securities legislation (fraud)?
- * What has China done recently concerning its new antitrust regime?
- * What is the general rule and the exceptions to sovereign immunity under the Foreign Sovereign Immunities Act?
- What is the Act of State Doctrine and the Alien Tort Statute and how do they apply to bringing foreign actions into the U.S. courts?
CLASS # 12: ............... Foreign Corruption, Reexport Controls, Trade Sanctions, Mergers (CFIUS) and Taxation (PART II).
Video: Walmart Corruption and Mexico (2012).
Malawer, "Global Taxation and U.S. Politics." Richmond Times-Dispatch (Sunday Commentary) (April 17, 2016).
"Largest Fine Ever for Foreign Bribery." USDOJ News ( November, 13, 2015).
OECD Bribery Convention (1997).
World Bank and Corruption. (website).
Hayden, "Technology Controls and National Security." Washington Post (April 2, 2015).
Malawer, "Global Mergers and National Security." (VL 2010).
Video: Huawei and CFIUS (2012).
Malawer, "Extraterritoriality of U.S. International Economic Legislation." (#6, #10, #11) (International Taxation).
*"OECD Multinational Tax Avoidance Project." OECD & G20 (Video) (Sept. 16, 2014).
- *What are some of the issue concerning multinational corporations and U.S. taxation? What is the related issue of 'bank secrecy'?
What has been the role of the OECD in addressing global tax avoidance and what has it drafted recently?
If foreign policy is increasingly including issues of trade sanctions how can the President diplomatically negotiate agreements when trade sanctions are within the purview of the Congress? (Think about the Iranian negotiations over sanctions and nuclear development and the recent diplomatic recognition of Cuba.)
* How has the Corrupt Practices legislation been "globalized" by the OECD?
Why has the Dept. of Justice been so active in prosecuting global price-fixing cases, violations of the Foreign Corrupt Practices Act, and other money laundering cases?
* What has been the success of the U.S. in attacking foreign banks as to encouraging tax avoidance and conspiring to fix LIBOR and FOREX?
* Why is corporate and government corruption bad for economic development? What is the relation of bank secrecy, tax avoidance, and official corruption?
* Why are trade sanctions, export controls / reexport controls and boycott legislation applied extraterritorially? What is the impact on U.S. competitiveness?
* What is the issue of concerning U.S. worldwide taxation principle and trade involving U.S. firms and multinationals? What is the issue of transfer-pricing?
Why are "private trade actions" by corporations now viewed as important as "government trade restrictions" that ought to be regulated by global trade rules under the WTO?
Why are cross-border mergers increasing? Why have companies from India, China and the UAE becoming so active?
*What is the relation of cross-border mergers to foreign direct investment?
*What has been the reaction of the U.S. and other countries concerning national security and restricting foreign takeovers and foreign investment (particularly under CFIUS)? What about Chinese companies? What have been recent U.S. actions concerning this?
What is the impact of growing commodity and natural resource competition worldwide on global mergers and transactions?
What about MNC tax avoidance and use of offshore tax havens by individuals?
* How are bilateral investment treaties (BIT) utilized to increase direct investment? What are some of the basic provisions within these agreements?
CLASS # 13: "POLICY ESSAYS
CLASS # 14: "TRUMP'S TRADE POLICY.
TPP (Full text) (USTR Nov. 2015).
"A Trade Deal Worth Adopting." Washington Post (Editorial) (Nov. 13, 2015).
Malawer, "Fast Track Authority & President Obama." Richmond-Times Dispatch (Feb. 16, 2014).
USTR Trade Agenda (2015) ("Trade Enforcement") at pp. 34-36.
- What are the arguments for and against TPA (Fast Track), TPP and TTIP and Obama's trade policies? What are the prospects of TPP getting through Congress?
- What are the possible hallmarks of Trump's trade policies as to trade liberalization, trade enforcement, exisiting treaties and proposed ones? What are his powers under exisitng legislation and treaty authority and what are prospects in the new Congress?
- What are the dispute resolution procedures in the TPP regarding inter-state trade disputes and investor-host state investment disputes (ISDS)?
- What about President Obama's trade challenges?
- What are President Obama's export trade initiatives and trade reorganization proposals?
- What are President Obama's focus on mutual responsibilities and following the rules of the road?
- What has been President Obama's focus on an enforcement-centered trade policy? What actions has he taken concerning China trade? How effective? Is a mirror-image created?
- How successful has Obama been in managing China-U.S. trade relations and Chinese investment into the U.S.?
- How significant is President Obama's new export policies in actually increasing exports and proposals for increasing direct investment into the U.S.?
- What trade measures can be used to counter economic cyberespionage?
- What are some of the newer issues now included in the trade debate? Aspects of the digital economy? Internet controls?
- What are the dimensions of the trade debate, within the parties and between them, in this presidential election season?
- What future trends will impact the development of new rules governing global trade and the role of the WTO?
- What are the relationships and tensions between national security and trade relations?
- What are the continuing implications of the global financial and economic crisis on trade relations?
- What are these implications on global governance and the emergence of a new global architecture for global and transnational economic relations?
- Why do proponents of refining the financial system want to get investment into the WTO?
- How has the WTO rules-based system restricted new protectionist measures during the global financial crisis?
- What policies should the U.S. and the WTO pursue to ensure further a rule-based system and greater global governance? In terms of negotiations and litigation?
- What are the needed changes to the rules of trade to ensure that globalization does not give way to global terrorism or globalization in reverse?