International Strategy

There have been several recent developments in international efforts to combat trade in goods made with forced labor, with important implications for responsible sourcing and global trade compliance programs.

On September 14, 2022, the European Commission (“Commission”) published a proposal to ban products made with forced labor from the EU market. The proposal notably goes beyond banning the importation of such products and would also create a ban on the export of products produced with forced labor and require their withdrawal from the EU market.

Meanwhile, enforcement by U.S. Customs and Border Protection (“CBP”) of the U.S. forced labor import prohibition has continued to intensify, including under the Uyghur Forced Labor Prevention Act (“UFLPA”). In early August 2022, CBP clarified the process for updating the UFLPA Entity List. In addition, CBP recently announced that it intends to integrate forced labor compliance requirements into the Customs Trade Partnership Against Terrorism (“CTPAT”) “trusted trader” program.

We discuss these developments and their implications below.

EU Forced Labor Product Ban

The European Commission has proposed a Regulation prohibiting products made with forced labor from being imported to, exported from, or sold in the EU, following an announcement by Commission President Ursula von der Leyen during her State of the Union address in September 2021.

The Commission’s proposal is the first step in the EU’s formal legislative process. The Regulation will now have to be agreed by the European Parliament and Council to become law, following which there will be an agreed delay—the Commission has proposed two years—before it applies in EU Member States. As it usually takes at least 12 months, and often closer to 18 months, for the European Parliament and Council to agree on a legislative text after a proposal by the Commission is published, it is unlikely that the Regulation will be adopted before the end of 2023, and it is therefore unlikely to become applicable earlier than late 2025.

Continue Reading Breaking Developments in Forced Labor Trade Enforcement—the EU’s Proposed Forced Labor Product Ban and Recent Developments in U.S. Customs Enforcement

Presidential Action Triggered by Crisis in the U.S. Solar Industry

In recent months, the U.S. solar industry has been in the midst of an existential crisis, triggered by the threatened imposition of retroactive and future tariffs on a significant portion of U.S. imports. That crisis began on April 1, 2022, when the Department of Commerce (“Commerce”) initiated an inquiry to determine whether solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam are circumventing antidumping (“AD”) and countervailing duty (“CVD”) orders on solar cells from China. Solar cells from these countries generally accounted for approximately 80% of U.S. solar module imports in 2020.[1] If Commerce finds circumvention, solar cells and modules from the four target countries could not only be subject to combined AD/CVD tariffs approaching 250%, but Commerce’s regulations also allow for the agency to apply these tariffs retroactively to merchandise entering on or after April 1, 2022 (and potentially as far back as November 4, 2021). This threat of AD/CVD tariffs triggered a steep decrease in imports of solar cells and modules from Southeast Asia, and caused parts of the U.S. solar industry to come to a stand-still, furthering domestic reliance on coal.[2] Given this paralysis in the solar industry, lawmakers and others urged the President to provide relief from potential AD/CVD tariffs.[3]

The President’s Response

On June 6, 2022, President Biden issued a declaration of emergency (the “Declaration”)[4] pursuant to section 318(a) of the Tariff Act of 1930, as amended (19 U.S.C. § 1318), and issued a determination pursuant to section 303 of the Defense Production Act of 1950, as amended (50 U.S.C. § 4533) (“the DPA Determination”)[5]. The Declaration finds that an emergency exists “with respect to the threats to the availability of sufficient electricity generation capacity” and authorizes Commerce to issue a moratorium on tariffs on solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam for up to a 24-month period, while the DPA Determination aims to “expand the domestic production capability” for solar cells during this 24-month period. The Declaration itself does not prevent the imposition of tariffs on imported solar cells and modules from the Southeast Asian countries, rather it authorizes the Secretary of Commerce to “take appropriate action” to permit the duty-free importation of solar cells and modules for 24 months after the Declaration’s issue date.[6]

Continue Reading President Acts to Prevent Import Tariffs on Solar Cells and Modules from Southeast Asia

International Trade, Public Policy (U.S.), Technology

On March 23, 2022, the Office of the U.S. Trade Representative (“USTR”) announced its decision to reinstate through December 31, 2022, 352 previously granted exclusions from tariffs imposed on Chinese imports under Section 301 of the Trade Act of 1974 (“Section 301 Tariffs”). The reinstated exclusions are a subset of a limited group of 549 exclusions that were previously extended and thus were eligible for possible reinstatement, and it remains unclear if and when a broader exclusion process might be forthcoming.

Background

The Section 301 Tariffs are based on the U.S. Administration’s determination in March 2018 that China’s technology transfer and intellectual property (“IP”) policies are harming U.S. companies. Between July 2018 and September 2019, the United States imposed four escalating tranches of tariffs on imports from China. U.S. tariffs on over $360 billion in Chinese imports remain in place despite the “Phase One” agreement that the parties reached in January 2020.

For each of the four tranches or “Lists,” USTR established a process for requesting product-specific exclusions from the Section 301 Tariffs. In total, USTR granted over 2,200 exclusions. USTR also opened a process for submitting comments on whether to extend the duration of particular exclusions. Based on that process, USTR extended 549 exclusions spanning products covered by Lists 1 – 4, but most of these exclusions expired by December 31, 2020, with the remainder expiring on March 25 and April 18, 2021.

On October 8, 2021, days after USTR Katherine Tai announced that her office would open a “targeted” tariff exclusion process, USTR published a Federal Register notice inviting public comment on whether and how long USTR should reinstate 549 product exclusions that were granted and subsequently extended. USTR published on its website a list of all 549 exclusions. The notice indicated that USTR would focus on evaluating whether, despite imposition of the Section 301 Tariffs, “the particular product remains available only from China.” Additionally, USTR would consider whether reinstating an exclusion would “impact or result in severe economic harm to the commenter or other U.S. interests,” or affect the goal of obtaining the elimination of China’s problematic IP policies.

Reinstated Section 301 Tariff Exclusions

On March 23, 2022, USTR announced its decision to reinstate 352 product exclusions among those identified in its October 8, 2021 notice. USTR stated that its determination was based on public comments received as well as input from advisory committees and other U.S. agencies.

All reinstated exclusions are retroactive to import entries made on or after October 12, 2021, that are unliquidated or that are liquidated but remain protestable. The reinstated exclusions expire on December 31, 2022, though the notice provides that USTR “may consider further extensions as appropriate.”
Continue Reading USTR Reinstates Limited Exclusions from Tariffs on Chinese Imports

On March 11, 2022, President Biden announced that the United States, acting in coordination with the European Union (“EU”) and leaders of major economies belonging to the Group of Seven (“G7”), would begin taking steps to revoke most-favored-nation (or “MFN”) trade status for Russia. MFN trade status—known as Permanent Normal Trade Relations (“PNTR”) status in the United States—is a term used to describe the nondiscriminatory treatment granted among most of the world’s trading partners. Days after the President’s address, on March 16, the House passed to formally revoke PNTR for Russia, and also stripping Belarus of MFN treatment. The bill now moves to the Senate, where timing for its consideration is uncertain.

MFN status is a fundamental principle in the international trading system established under the World Trade Organization (“WTO”), and as a general rule, WTO Members are required to accord MFN status to all other WTO Members. Having acceded to the WTO in 2012, Russia is generally entitled to MFN treatment by other WTO Members. In response to Russia’s invasion of Ukraine, however, several other WTO Members have joined the United States, the EU, and the G7 in stating an intent to revoke MFN treatment for Russia, invoking an “essential security” exception that permits WTO-inconsistent measures where a Member considers such measures to be “necessary for the protection of its essential security interests.” Statements issued by the White House and G7 Leaders emphasized the coordinated nature of the initiative across economies, and the intent to continue to pursue additional collective action to deny Russia the benefits of WTO membership.

While certain G7 countries, such as Canada, have already withdrawn Russia’s trade benefits by means of executive action, revocation of Russia’s PNTR status in the United States will require congressional action. While the House has passed a bill to do so, specific timing for consideration of that legislation in the Senate is still unknown. A revocation of Russia’s MFN status will increase tariff rates applicable to certain U.S. imports from Russia, and may also provoke Russia to take responsive, retaliatory actions against international firms. This alert provides background on Russia’s current trade status, analyzes congressional action to date on the issue, and describes the potential international trade implications for U.S. firms of a change in Russia’s trade status.

Background on Russia’s Trade Status

Under the principle of MFN treatment, WTO Members are required to treat imports of goods and services from any WTO Member as favorably as they treat the imports of like goods and services from any other WTO Member. In practice, this means that MFN treatment is the basic “non-discriminatory” treatment to which all WTO Members are generally entitled. Russia has been accorded MFN treatment by most major economies since it became a WTO Member in August 2012.
Continue Reading Revocation of Russia’s Most-Favored-Nation Trade Status: What Companies Need to Know

This alert provides a further update on the rapidly evolving sanctions landscape with regard to the Ukraine crisis, further to our alerts on February 22 and February 25. On 25 February 2022, the European Union adopted an additional package of targeted and sectoral sanctions against Russia in response to its military actions in Ukraine. Those measures, which were announced earlier last week, include a range of new asset-freezing designations, financial sector restrictions, export controls, and other measures. The UK has also announced further economic sanctions against Russian individuals.

According to a joint statement issued by Canada, France, Germany, Italy, the UK, the U.S., and the European Commission on 26 February, further economic sanctions yet will be introduced in the coming days. Those measures will include the removal of selected Russian banks from the SWIFT messaging system using to facilitate global financial transactions.

New EU Targeted and Sectoral Sanctions

Additional Asset-freezing Designations

Council Implementing Regulation (EU) 2022/332 adds 98 people to the EU asset-freezing list. The list notably includes the Russian President Vladimir Putin and the Minister of Foreign Affairs Sergey Lavrov, as well as other members of the Russian National Security Council. Sanctions will also be extended to the remaining members of the Russian State Duma, who ratified the government decision of the Treaty of Friendship, Cooperation and Mutual Assistance between the Russian Federation and the two Ukrainian non-government controlled regions of the Donetsk and Luhansk oblasts. The Regulation also targets individuals who facilitated the Russian military action from Belarus.

New EU Sectoral Sanctions

The most far-reaching measures are introduced in Council Regulation (EU) 2022/328 (the “Regulation”). The Regulation amends Regulation (EU) 833/2014, first issued in August 2014, which set out the EU’s existing Russia sectoral sanctions regime, and introduces new measures targeting various sectors of the Russian economy.

As with regard to the original version of Regulation 833/2014, the restrictions summarized below extend to the worldwide conduct of EU persons and entities, conduct aboard EU-flagged vessels and aircraft, and to non-EU parties with regard to business occurring in whole or in part within the EU.

The Regulation introduces the following new export and related services restrictions:

  • Restrictions on exports of dual-use goods and technology: The Regulation replaces the pre-existing prohibition on exports of dual-use goods and technology under Council Regulation 833/2014. The pre-existing prohibition was limited to the export of dual-use goods and technology that were intended for military use or for a military end-user; the amended Regulation expands that prohibition to restrict the export of dual-use goods and technology and the provision of related services to persons in Russia regardless of the intended end-use or end user.

While exports of dual-use items always required licensing for Russia pursuant to the EU Dual Use Regulation, these new restrictions expand on those measures in important ways. In particular, as the jurisdictional scope of the Regulation extends to the conduct abroad of EU persons and entities, dual-use export controls on Russia are no longer limited to exports from the EU – the Regulation’s dual-use controls could apply with regard to actions by EU persons and entities in connection with the sale, supply, or transfer of dual-use items to Russia from anywhere in the world.
Continue Reading EU and UK Adopt Additional Sanctions Against Russia, with Further International Sanctions Measures Announced

On October 4, 2021, U.S. Trade Representative Katherine Tai announced during a speech at the Center for Strategic and International Studies in Washington, D.C., that the United States would be launching a new trade strategy toward China.  Tai’s announcement comes on the heels of a months-long, comprehensive review of the U.S. trade policy toward China,

Three summits last week—G-7, NATO, and U.S.-EU—launched a wide range of transatlantic initiatives to coordinate policy, particularly on trade, technology, and defense. These new formats and dialogues can ensure a much deeper level of regulatory cooperation between the United States and Europe by exchanging perspectives, briefing materials, and in some cases, staff. For companies on both sides of the Atlantic, these emerging policy trends also open up new opportunities to engage decision-makers both in Washington and European capitals.
Continue Reading Transatlantic Summits: Main Takeaways for Tech and Defense

In coordinated action on 22 March 2021, the EU, US, Canada and the UK imposed sanctions on four Chinese officials accused of complicity in human rights violations in Xinjiang. The Chinese responded by imposing sanctions on a group of MEPs, European academics and think-tanks on 23 March and followed these announcements by imposing retaliatory sanctions

On March 13, 2021, China’s National People’s Congress (NPC) approved the outline of the country’s 14th Five-Year Plan, covering the period 2021-2025. The plan’s economic and social development targets provide critical signposts that companies—both foreign and domestic—would be wise to heed when determining their own plans for the coming months and years in the Chinese market. The full text of the plan can be accessed here in its original Chinese. This article will be updated with a link to an English translation once it becomes available.

The five-year plan is the centerpiece of the Chinese system of industrial planning and policy. Reflecting the transformation of the country over the past 70 years, the content and purpose of the five-year plan has changed substantially since the first plan was issued in Mao Zedong’s China in 1953. As the economy has evolved from a pure command economy to one in which the market plays a greater role, albeit with substantial engagement and interventions by the government, the five-year plan has evolved as well. Early plans set production targets; modern plans are a mixture of principles, guidelines, and targets designed to steer the country’s development. This evolution has not reduced the importance of the five-year plan—it remains a central feature of the Chinese economic system—but it does affect how it should be interpreted and how its guidance is implemented in practice. Ultimately, the five-year plan’s purpose is to set strategic goals, focus government work, and guide the activities of market and non-market entities in China. In developing the 14th Five-Year Plan, China’s leaders set an ambitious agenda to “promote high-quality development in all aspects, including the economy, environment, and people’s livelihood and wellbeing, and realize the rise of China’s economy in the global industrial chain and value chain.”
Continue Reading China’s 14th Five-Year Plan (2021-2025): Signposts for Doing Business in China

On Thursday, November 12, 2020, President Trump signed an Executive Order (the “Order”) that, beginning on January 11, 2021, will prohibit U.S. persons from transacting in the publicly traded securities of 31 companies that the Department of Defense has identified as “Communist Chinese military companies.” The requirement for the Department of Defense to create a