China-U.S. Trade Law

China-U.S. Trade Law

Insights & commentary on active trade disputes between China and the U.S.

THE PIVOT TO ASIA AND THE INEVITABLE FAILURE OF THE TRANS-PACIFIC PARTNERSHIP

Posted in Trade Negotiations

The following article substantively follows the text of remarks by Dr. Elliot J. Feldman during a May 2, 2014 Webinar sponsored by the Knowledge Congress Live Webinar Series and BakerHostetler.

The Origins And Direction Of A Trans-Pacific Partnership (“TPP”)

            TPP negotiators have been through more than twenty negotiating rounds since 2010, meeting in ten different countries.  We could spend a lot of time on the details.  Businesses have lobbied their particular interests, trying to assure that the contents of a deal will be to their liking.  However, businesses need a larger picture.  They need to have some idea when the changes that a major trade deal would make might come to pass.  They need to know whether, when, and where they should be investing, based on the applicable trade rules, particularly rules that impact all businesses – environmental and labor standards, intellectual property rules, investor protections.  In my view, TPP is not likely to come to pass at all, at least not during the Obama Administration.  I want to explain why, suggesting that sound business planning will not count on change from TPP, at least for several years to come.

            TPP MapFree trade agreements typically are more strategic than economic, as political as legal.  The Free Trade Agreement with Canada was the product of a Canadian Royal Commission concluding that Canada’s economic future – and consequently its political independence — depended upon secure access to the U.S. market.  Mexico sought NAFTA when it was transforming its politics into a multiparty system.  The TPP is the institutional centerpiece of the Obama Administration’s strategic pivot to Asia.  As much as the international trade details are important, the very possibility of agreement, and the agreement’s architecture, are strategic and political.  As President Obama’s former National Security Adviser, Tom Donilon, has explained,  “The centerpiece of the economic rebalancing is the Trans-Pacific Partnership (TPP), the most important trade deal under negotiation today. The TPP’s most important aims, however, are strategic.  A deal would solidify U.S. leadership in Asia.”

            The United States was motivated to join the TPP talks primarily by two factors.  The United States feared that withdrawal from Iraq and Afghanistan could be misinterpreted as a more general withdrawal of the United States from international engagement, especially in Asia.  The Obama Administration does not mind signaling that the United States is no longer interested in fighting wars that cannot necessarily produce desired outcomes, but it does mind the implication that American power and influence are diminished.  Second, smaller Asian partners asked the United States to join the talks, apparently fearful of being dominated by China’s economy and potentially related power.  The United States, still formulating policies toward China, responded to those smaller partners. 

            The TPP began as the Trans Pacific Strategic Economic Partnership of Brunei, Chile, New Zealand, and Singapore, in 2005.  It was always conceived as an organic entity that could add members.  In 2008, Australia, Vietnam and Peru all joined in negotiations, followed by Malaysia in 2010.  Meanwhile, the United States agreed in 2008 to join talks, and participated in a first round in 2009.  The United States then converted an agreement to manage trade and promote regional growth into a proposed model for world trade in the twenty-first century.  North America effectively became a driving force for a very different organization in 2012 with Canada and Mexico joining the talks and the United States imagining the TPP as a successor agreement to NAFTA.  However, the United States recognized that the number of countries would not be as important as their economic heft.  The three most important Asian economies were not among the signatories, nor were they in the negotiations. 

            Obama -AbeThe United States encouraged Japan to join, and quickly saw that trade concessions from Japan alone might justify the initiative as a trade agreement.  Whereas the United States already had free trade agreements with Peru, Chile, Canada, Mexico, Australia and Singapore, it had no such agreement with Japan.  And, the addition of Japan to the talks worried South Korea about being left out – possibly losing some of the advantages it had just won in its own free trade agreement with the United States.  Hence, once the United States moved into play in 2009, the modest organization of Brunei, Chile, Singapore and New Zealand grew quickly into a potential agreement among 12, even 13 countries, including all of the important economic powers in Asia – except, deliberately and conspicuously, China.

            China interpreted these developments as a containment policy driven by the United States, and although the United States initially was merely answering the call of friendly Asian states to expand trade, it could not persuasively deny what was happening.  On the one hand, the pivot to Asia was to engage China.  President Obama had said the U.S.-China relationship was the most important of the twenty-first century.  On the other hand, the United States was denying China participation in the negotiations on the grounds that the TPP was to be a model, very high standard and sophisticated international trade agreement for which China’s non-market economy was not ready. The United States had transformed the original TPP – a modest trade agreement whose ambition was defined mostly by the number of members it could enlist – into a model that would define free trade according to American criteria, and would confirm, as Tom Donilon wrote in April, U.S. leadership in Asia.

            Eventually, the United States said China would be welcome, but it could not now qualify for such high standards.  However, Vietnam, a lesser developed country and also a non-market economy, somehow did qualify to participate in the talks and become a TPP member.  There was no logical answer to this paradox except to recognize that the pivot to Asia, which had begun as an engagement of China in a constructive relationship, had devolved quickly into a containment in which the distinctions about non-market and lesser developed countries and economies were without a difference. The fulcrum was no longer the smaller founding partners, nor even the weight of North America:  the TPP over the last twelve months became enmeshed in the politics of Asia and the role the United States will play in the tense triangle defined by Japan – in the negotiations but far from agreement – South Korea – pondering participation and worried about exclusion – and China – deliberately and systematically excluded.

Trade v. Security

            American participation in the TPP talks began with Susan Schwab, USTR under George W. Bush.  It had nothing to do with a pivot to Asia.  However, there was a convergence of numerous forces that made TPP emerge as a foreign policy centerpiece for the Obama Administration.  At the same time that the President was pursuing more engagement with China, elements in China seemed to be challenging an imagined security status quo in the region. The initial TPP members were feeling insecure about China’s growing economy, but others, especially Japan, were insecure about China’s potential military capabilities. Even though the United States spends more than five times as much on defense as China, some in the United States focused on a rapid and steep rise in Chinese defense expenditures.  Others noted China’s sustained interest in absorbing Taiwan.  Shinzo Abe’s militaristic nationalism in Japan rattled China and provoked territorial claims and counterclaims that led to an American embrace of its defense alliance with Japan as a response to China.  These developments, focusing on the military and national security, threatened to distort the American profile in the region, moving the United States from economic partnership to economic overseer and military guardian in a cold war atmosphere.  Achieving balance made the TPP the Obama Administration’s available instrument of choice. 

A Coalescence Of Critical Voices

            Domestic pressures also put a focus on TPP.  The cancellation of the President’s planned trip to Asia in October 2013 because of the government shutdown made a replacement journey all the more important if the pivot to Asia were to be credible.  The trade negotiations, however, were not sufficiently advanced for the President to expect any conclusions from such a trip.  Moreover, as awareness of the negotiations matured in the United States, more and more interest groups emerged, making the TPP more controversial.  Constituencies vital to the President, such as trade unions and environmental organizations, lined up against the deal,  while interests not known to be favorites of the Obama Administration, such as banks and the U.S. Chamber of Commerce, became his allies.  His own political party divided, and no one in its leadership offered unqualified support.  Some, like Ranking House Ways and Means Committee Member Sander Levin, have demanded legislation addressing alleged currency manipulation as a condition for supporting Trade Promotion Authority, and constituents such as the Big 3 Automobile manufacturers and American cattlemen have said they will not support a deal without provisions for currency manipulation.  Through 20 rounds, currency manipulation has not been on the TPP agenda, nor on the Administration’s.  Republicans now can present themselves as free traders favoring the deal, while opposing the President.

            A common criticism was (and continues to be) that the TPP has been negotiated secretly.  Some texts have been leaked, but none deliberately shared with the public or much of Congress.  Senator Ron Wyden, the new Democratic Chairman of the Senate Finance Committee, complained at a hearing on May 1, 2014, “Americans expect to easily find online the information they want on key issues like trade.  Yet, too often, there is trade secrecy instead of trade transparency.  It’s time to more fully inform Americans about trade negotiations and provide our people more opportunity to express their views on trade policy.  Bringing the American people into full and open debates on trade agreements that have the effect of law is not too much to ask.”  In an outstanding demonstration of misunderstanding between the White House and Democratic leaders, United States Trade Representative Michael Froman told the Senate Finance Committee at the same hearing, “We have held over 1,250 meetings with Congress about TPP alone.” Such misunderstanding, and such apparent public secrecy, in the absence of Trade Promotion Authority, or fast-track, is a profound problem for the President.

The Need For Trade Promotion Authority      

            The President of the United States cannot complete a treaty or a trade agreement without Congressional approval.  A treaty requires two-thirds of the Senate; an Agreement, a majority of both Houses of Congress.  Because Presidents could sign agreements and treaties with foreign partners, only to see them rewritten by Congress, foreign partners could not rely on the President’s signature and were reluctant to negotiate with the United States.

            The cure for this handicap has been TPA.  It is legislation that authorizes the President to negotiate and enter into trade agreements that subsequently are subjected to an up-or-down congressional vote without amendment.  TPA legislation, however, provides guidance as to what Congress expects in trade agreements, and establishes parameters for congressional participation and obligations for the President to keep Congress informed throughout the negotiations.  TPA gives trade partners confidence that the President’s signature on an agreement is of value and that the U.S. may accept or reject the agreement, but will not change it. It gives the President authority, and it gives Congress assurance that it knows what is going on.

            TPA must precede negotiations and agreements for several reasons.  Trade partners will not expose their full hand, or make their best offers, if they’re uncertain whether the President of the United States can deliver on the deal as written.  Competing domestic interests must be managed in the making of the deal, not after the fact when their only option is to torpedo the deal altogether. 

            President Obama proceeded on TPP without TPA.  Only in 2013 was a bill for TPA even introduced to Congress for the first time since he became President.  The Senate Majority Leader did not support it.  To the contrary, he vowed not to let it come to the Senate Floor.

            With bravado, the President’s trade team suggested they could negotiate a deal so good that it would be an offer that Congress could not refuse.  Of late, however, the trade team has acknowledged that without TPA, they do not expect to gain approval of TPP.  Meanwhile, the negotiating partners have indicated that, without TPA, the President has no effective authority to bring negotiations to a conclusion, and they are not willing to cash their domestic political chips on a deal that, because of the United States, cannot be concluded.  This is the main reason why so many of the chapters in the negotiations remain open.

            The evolving strategy is to place the burden of the whole deal on Japan:  if Japan were to open its agricultural and automobile markets, so the Administration seems to think, the deal would be irresistible to Congress regardless what else may be concluded with the other countries – those with whom the United States already has free trade agreements and those (such as Brunei and New Zealand) whose economies are too small to matter.  The Administration seems to believe that TPA could be granted just for ratification of the TPP, presented as a matter of national security for American leadership in Asia and as an economic victory by opening valuable Japanese markets. 

            Conversely, should the Japanese not deliver major trade concessions, failure of the TPP negotiations could be focused there.  In a classic quid pro quo, the United States is delivering reassurances to Japan on the military alliance, removing any perceived sting from being blamed for trade failure in the TPP.

            This recent shift in ground has embarrassing qualities.  The TPP was, according to the Administration, on a course toward completion without Japan, and some believe the TPP can still be concluded without Japan if necessary.  That Agreement might have been a U.S. victory, replacing NAFTA,  especially with more robust environmental and labor terms; extending American intellectual property rules, thereby especially advancing the interests of the major pharmaceutical companies; and reassuring American investors abroad through enhanced investor-state arbitration.  Instead, now, the Administration appears to have placed the burden of success or failure on Japan, presumably to relieve itself of the looming failure of achieving TPA in Congress. 

Security Claims The Foreign Policy Spotlight

            However much President Obama wanted to talk about trade and the TPP on his April swing through Asia, he had security issues thrust upon him.  His response to the Russian invasion of Crimea and fomenting of revolution in Eastern Ukraine was being watched carefully and shadowed everything else.  Prime Minister Abe made sure the President would seem to take sides in the Japanese dispute with China over the Senkaku/Diayou Islands, and hoped he would do the same for the Japanese dispute with South Korea over the Dokdo/Takeshima islands.  The President spent as much time and energy trying to get Japan and South Korea on the same page as he did advancing the cause of the TPP, particularly because he needs their cooperation – and China’s – on the higher priority of North Korea’s expanding nuclear capability.  When gunboats from different countries are sailing near one another with contrary objectives, trade issues seem less important. 

            Diaoyu Island Japan does not want to be held accountable for a TPP failure.  Deflection of attention to security issues served to further isolate and contain China, ease Prime Minister Abe’s rearmament desires, and secure U.S. support.  It did nothing, however, to advance the President’s agenda and did not move TPP forward.  Instead, the United States was left to contemplate a TPP without Japan — as had been the expectation until a year ago – without South Korea, which is reluctant these days to join anything with Japan – and without China which, despite the U.S. suggestion last August, continues to be the Agreement’s intent.  And all that attention to security is about nothing more than small piles of uninhabited rocks.

            The fate of TPP as a matter of foreign policy is caught between a grand scheme to knit together 40 percent of the world’s economy, on the one hand, and the triangle of disagreement over sovereignty and security involving the three most important economies in Asia, on the other.  It raises the existential question whether a trade pact designed to contain or isolate China is good for the future of world trade.   Many think it is because they doubt that China plays by the rules. Many think it is not because China’s economic power is here to stay.  The regrettable feature of this dilemma is that it has not been addressed systematically at all.  Instead, the Obama Administration has slipped into it, drawn first by four economically and militarily insignificant Pacific countries worried about China, and then pulled more forcibly by a nationalistic Japanese leader looking to rearm and be more assertive globally. 

            There is reason to think that the Obama Administration is not postured as it would have liked.   It wanted to engage China, not contain it.  It wanted to develop a regional trade agreement that would attract China, not repel or even expel it.  TPP, instead of becoming a source of regional amity, has evolved into a potential source of conflict.  The President’s National Security Adviser counsels “constructive relations with China,” but there is little in the pivot to Asia, especially in the cornerstone of the TPP, that is reassuring.

The Status Of Negotiations

            TPP negotiations are unlikely to produce an international agreement regardless whether Japan or South Korea are parties.  There are too many fundamental disagreements among the twelve countries in the talks, and the American attempt to infuse the region with American values and American legalities is transparent.

            Despite the secrecy of negotiations, documents have leaked. Some have included full draft texts, as for an environmental chapter.  Mostly, they have exposed the lack of international progress.  Following the November 2013 Round of Negotiations in Salt Lake City, the internal commentary of one participating government contained, in no particular order of importance, numerous observations. 

            According to the leaked document, notwithstanding that “the U.S. is exerting great pressure to close as many issues as possible this week,” “The results are mediocre.”  The meeting, this commentary reported, ”served to confirm the large differences that continue in most areas of the [IP] chapter.”  For medicines, the United States “resubmitted a text that had been strongly rejected in the past.”  “The United States, as in previous rounds, has shown no flexibility on its proposal [for investment] . . . Only the U.S. and Japan support the proposal.”  The chapter on State-Owned Enterprises “is very far from closed.”  There was “very little progress” on Rules of Origin, and the negotiations over textiles were in “a major crisis.”  The “Meeting” on the environment “was interrupted because we could not get past the second issue [on] the definition of environmental law.”  There was “inadequate progress” on financial services:  “The positions are still paralysed.  United States shows zero flexibility.”  The United States had been aiming to close the entire deal by the end of 2013 and get it before Congress before the summer election campaign. 

Historically, the United States has had its way in international negotiations most when forging bilateral agreements because it has always been the dominant player.  Other countries typically want to draw the United States into multilateral negotiations because they can band together to dilute American power and influence.  Here, the United States has been drawn into a multilateral negotiation that it has tried to treat as a collection of bilaterals (an opportunity to dismantle Canada’s supply management; Japan’s agricultural protectionism; Vietnam’s textile preferences; and so forth).  Yet, even were the United States somehow successful internationally in the negotiations, Congress — probably for the wrong reasons – would not close the deal.

            The United States’ strategy for negotiation and ratification has been complicated and backwards.  The process, as it has evolved, has been to place the initial burden on Japan and to present Congress with a deal it could not refuse.  Congress, nonetheless, whatever it is – Republican or Democrat — will refuse it, for at least three reasons.  First, a Republican Congress will not give President Obama a signature foreign policy success in trade.  Republicans consider international trade their domain (the history of trade commitments to the contrary notwithstanding), and the current Republican Party is obstructionist regarding all Obama initiatives.  Second, the President’s own Party does not support the Agreement, suspicious about labor, the environment, banks, pharmaceutical companies. And third, most of Congress feels betrayed by the alleged secrecy in making the deal.

            Had Obama followed the historical process, in which TPA precedes TPP, he may have been more successful, or he would have known sooner that the objective could not be reached.  Now he is presented with the risk of failure where American credibility throughout Asia is at stake.  It would have been better to know earlier, or to have lowered expectations.  Those options are gone.

Conclusion

            The President needs to complete a very attractive TPP in order to persuade Congress to vote it up or down, requiring prior TPA legislation.  His international partners, however, are not making their best and final offers without TPA coming first.  Prime Minister Abe, for example, does not want to take on his whole agricultural sector in order to make a deal that could fail in the United States Congress. There seem to be almost daily reports that Japan will not give up its protection of five “sacred” agricultural products, a position guaranteed to crater the deal.  So, TPP can’t be completed successfully without TPA, and TPA cannot be passed without a completed and attractive TPP. 

            At first, China seemed to interpret the TPP as a U.S.-led attempt at containment.  Over time, China seemed to recognize fatal problems with the negotiations and worried less.  At one point, a year ago, China called the U.S  bluff  that it might be  included in the talks, whether because China was genuinely interested,  or because China wanted to expose the real purpose of the TPP. 

            Today, China’s public discord with the United States is concentrated on the American engagement as an ally of Japan in sovereignty disputes.  Trade disputes — principally American complaints about state owned enterprises and Chinese state support for exported merchandise – continue unabated in the friendly confines  of government investigating agencies and dispute panels of the WTO, and seem reminiscent of the American confrontations with Japan during the 1980s, in the days of the GATT.  Even as trade disagreements sometimes take on the appearance of a trade war, security issues have replaced them in prominence and have induced President Obama to insist again on the American acceptance of China’s rise as a major power.

              One last word for our European friends, who have been as seduced by TTIP as our Asian friends have been drawn into one protracted negotiation round after another for TPP.  The Administration has made TPA dependent on TPP instead of the other way around.  Consequently, it perceives TPA as a one-off on behalf of TPP.  Even were it possible to imagine that this strategy could succeed once, it could not succeed twice.  Therefore, at least for the life of this presidency, TTIP is even deader than TPP.

 

           

Comments on An Environmental Goods Agreement 评环保产品谈判

Posted in CVD, Trade Negotiations, Uncategorized

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INTRODUCTION       

         Wind vs. Coal The Office of the United States Trade Representative, in the Federal Register of March 28, 2014 on behalf of the Trade Policy Staff Committee, requested comments and issued notice of a public hearing on negotiations for a World Trade Organization Environmental Goods Agreement as proposed by fourteen WTO members in January 2014.  The negotiation is framed by a list of fifty-four “environmental goods” endorsed for tariff elimination by APEC leaders in 2012.

            The APEC leaders recognize that free trade in environmental goods would accomplish at least two objectives:  increase free trade generally, and enhance the global response to the dangers of climate change.  Easier global circulation of environmental goods, as reflected in the list of fifty-four specific items, should translate into greater deployment of goods that would reduce carbon footprints and thereby help arrest climate change.

TARIFF REDUCTIONS NOT ENOUGH

            Tariff reduction always increases world trade and inevitably is the first objective of all trade agreements.  Unfortunately, tariff reductions will not be nearly enough to make an important difference in the circulation of environmental goods sufficient to advance toward the objective of reducing the threat of climate change.

            Recent reports from the United Nations Intergovernmental Panel on Climate Change emphasize three points, that:  to a certainty of 95 percent or greater, humans are the main cause of global warming; it is not too late to arrest climate change, but time is running out; the goal of arresting climate change will not be accomplished without significant innovation, experimentation, and development of information. This last point requires money that is not likely to come in sufficient part from the private sector because it is difficult to carry investment in innovation and experimentation quickly to a corporation’s bottom line. 

            Most of the identified APEC environmental goods seek to clean up emissions and make energy production, still using hydrocarbons, more efficient. They would not reduce carbon emissions through alternative energy sources, which in the long term is the only way sufficiently significant reductions will be achieved.

ALTERNATIVES TO FOSSIL FUELS MUST BE HELPED TO BE COMPETITIVE

           Alternative energy sources must compete in the marketplace with hydrocarbons.  Once limited to conventional mining and drilling for coal, oil, and gas, hydrocarbon use has been expanding with the discovery and extraction of oil and gas from shale, which is extending and expanding the use of hydrocarbons at the very moment when renewable energy sources might have been competing with hydrocarbons more effectively.

            For more than a century, North American governments have been subsidizing the oil and gas industry for research and development, extraction and sales.  According to a 2011 Report of the International Energy Agency, more than 250 mechanisms are used to subsidize fossil fuels in OECD countries, and according to a July 2011 report of the United States Energy Information Administration, $557 billion was spent globally in 2008 to subsidize fossil fuels, compared to $43 billion for renewable energy. According to SourceWatch, most fossil fuel subsidies are written permanently into the U.S. Tax Code, whereas subsidies for renewable energy are time-limited and specific. 

            Because most of the subsidies to hydrocarbons have been embedded in the tax code for a long time, they continuously are more substantial than assistance for innovation, experimentation, research and development for alternative energy sources.  The gap between the cost of energy to consumers produced by hydrocarbons and the cost through alternative energy sources does not close easily, and as long as there is an important gap (and more than a century growing that gap), hydrocarbons will be preferred, notwithstanding consequences for the environment. Grid parity is a holy grail for public utilities, essential for uploading energy from wind or solar or biomass or geothermal, and alternative energy sources will not achieve it without a dramatic new commitment to the alternatives.  

            As long as the cost of hydrocarbons to produce electricity is less than the cost of alternative energy sources (wind, solar, biomass, geothermal), utilities will rely primarily on hydrocarbons.  As shale brings down the hydrocarbon cost, the alternative sources become even less competitive.  And as long as hydrocarbons are subsidized, with a century’s head start for research and development, they will be preferred. 

STRATEGIES FOR ARRESTING CLIMATE CHANGE

          There appear to be four principal strategies for arresting climate change:  controlling and reducing the polluting effects of hydrocarbons, whether through more efficient production or through “scrubbers,” converters and other additional equipment; taxing the use of hydrocarbons, as in “cap and trade” or other policy “innovations” that accept substantial continuing reliance on hydrocarbons but are designed to discourage use; mandating reliance on alternative sources for some percentage of overall energy production, thereby often accepting a higher cost for energy but with reduced use of hydrocarbons; development of new and better alternative energy sources, as in more efficient and cheaper solar panels and wind turbines. 

          The first two strategies generally confirm continued reliance on hydrocarbons, especially coal, whose use is expanding in the United States as well as in developing countries.  The third is inevitably and permanently limited in the absence of grid parity by the limitations on public utilities to raise rates that inescapably would be inflationary and the equivalent of a disproportionately distributed sales tax.  Only the fourth promises a long-term solution to climate change caused by hydrocarbons.  It requires government subsidies, potentially of the scale supplied to hydrocarbon development. The proposed negotiations appear, at present, to be dominated by the first strategy.

SEIZE THE OPPORTUNITY TO NEGOTIATE MEANINGFULLY

          Tariff relief for a host of environmental goods, most of which come within the first strategy, will not be adequate, if only because more efficient use of fossil fuels necessarily means continuing to burn fossil fuels. It is a strategy for slowing down climate change and buying more time for alternative energy sources to catch up, but by itself it will not solve the problem in the long term.  The negotiation of an international trade treaty focusing on environmental goods opens an opportunity to address the single most promising strategy that, at present, confronts the greatest challenge from the WTO régime of international trade.

            To compete with fossil fuels, alternative energy sources need government help.  Innovation, research and development to arrest global warming are public goods worthy of public support.  The Business and Industry Advisory Committee to the OECD has recognized this obvious proposition:  “[S]ubsidies can help support the shift from traditional to new energy sources which are in early stages of commercialisation and where affordability is a key barrier, or where existing infrastructures make it difficult to introduce new energy sources.” The central problem, however, is that countervailing duty laws discourage and even punish subsidies.

THE TRADE LAW AS A CENTRAL PROBLEM 

            New green technologies, especially solar and wind, are understood almost universally to be vital for the future of the planet, technologies that electrify the globe without burning fossil fuels.  Yet, European and American manufacturers of solar equipment have been waging a trade war against Chinese manufacturers, and the Chinese have retaliated against other solar products from Europe and the United States. The net result of the solar war has been to reduce trade in solar equipment, raise prices, reduce availability of affordable and competitive equipment.  Even as governments everywhere have been urged by climate scientists and economists to reduce the consumption of fossil fuels and expand reliance on solar power, governments implementing trade laws have punished other governments trying to expand the use of solar power.

            The European Union and China negotiated a settlement of the principal dispute over solar panels in July 2013, setting a floor price for Chinese solar panels sold in Europe that generally raised prices while enabling the Chinese to maintain their significant presence in the European market. Nevertheless, the European Union initiated tariffs on Chinese glass used to make solar panels in April 2014, albeit involving a much smaller market. 

            In the summer of 2013, the United States was looking for a comprehensive three-way settlement (EU-China-United States) of the solar panel disputes, but U.S. trade law, lacking a public interest clause and dependent on the consent of the petitioning industry, could not deliver and the EU and China proceeded alone.  The United States, thus, has been left behind, principally because of the rigidities and pro-petitioner biases of its trade law.   

            Steel manufacturers of wind towers, upon which sophisticated turbines are erected, have been raising the cost of wind power, offsetting if not exceeding the efficiency gains of wind turbine manufacturers through innovation, research and development.  As the turbine manufacturers approach grid parity, the tower manufacturers push them further away, one domestic industry involving little technology innovation and few prospects for export trumping another domestic industry devoted to innovation with substantial prospects for international trade.

            Since countervailing and antidumping duties were imposed on wind towers from China and Vietnam in 2012, wind power development effectively has ceased on the coasts and islands (Puerto Rico and Hawaii) of the United States (an offshore project is moving forward in Massachusetts, but is not under construction; small projects are continuing in New York, Connecticut, Maryland and Oregon).  The Chinese and Vietnamese towers had supplied these markets because domestic towers could not be transported, neither logistically nor cost-effectively, from their manufacturing sites in the American heartland.  See attached map from the American Wind Energy Association. 

            The ironies here should not be lost. The manufacture of solar panels is largely robotic and creates few jobs. Installation and maintenance are labor intensive, and the more solar panels mounted, the less fossil fuel is consumed. Yet, domestic panel manufacturers, in Europe and the United States, have complained successfully about subsidies for the development of more, and more efficient, solar panels in China, thereby reducing jobs in the United States and reducing the deployment of solar power.

            There are many, many more jobs in the research, development, production, and installation of wind turbines than in the manufacture of wind towers.  The largest tower manufacturer in the United States has around 600 employees and has only one major competitor.  The third largest turbine manufacturer employs over 1500 to design and build turbines and has many competitors including two that are much larger. Yet, the wind tower manufacturers have succeeded in reducing the deployment of wind power by complaining about Chinese and Vietnamese subsidies to towers, collaterally reducing employment in turbine manufacture.  Hence, as the Chinese and Vietnamese Governments may be supporting the development and sale of green technologies, responding to the fourth and most promising of the strategies to combat climate change (by putting money into alternative energy), U.S. domestic manufacturers of competing products have been able to use trade laws to constrain the reduction of fossil fuel dependence and to kill skilled jobs.

          Job losses result from the application of countervailing duties in at least two ways.  An industry with fewer highly skilled jobs – for example, wind tower manufacturers – may adversely impact wind power development and therefore cost more highly skilled jobs among wind turbine manufacturers.  There is, however, a second way that can be even more damaging.  China, for example, has been willing to slow its own production of solar panels in order to retaliate against European and American trade actions. 

          China does not produce enough solar grade polysilicon to supply fully its production of solar panels.  China, consequently, is the world’s leading importer of polysilicon.  When the European Union and the United States brought cases against China’s solar panels, China launched investigations into imports of the solar grade polysilicon it uses to make the panels.  In January 2014, when the United States expanded investigations into Chinese solar panels, China imposed a permanent tariff of 57 percent on polysilicon from the United States (and 48.7 percent on polysilicon from South Korea).  The net result has been to cost American jobs in manufacturing solar grade polysilicon, and in installing and maintaining Chinese solar panels.

          The American experience contrasts with Europe, and not only regarding solar panels.  China began investigating allegations of dumping against European polysilicon before investigating polysilicon from the United States, but then entered into negotiations, particularly with the largest European producer, Wacker Chemie of Germany.  While negotiations ensued, China resisted imposing tariffs.  Finally, less than two months after making the tariffs on the American product permanent, in March 2014, China and Wacker agreed to a minimum import price that enables the Europeans to continue, and likely expand, their sales to China, probably soaking up some of the American market share. The American trade remedy actions designed to save American jobs had exactly the opposite effect.

            A study for the United Nations by economists at the Peterson Institute, presented April 3-4, 2014 in Geneva, has quantified some of the costs of applying the trade laws to green technologies. On behalf of “Ad hoc Expert Group 2” studying “Trade Remedies in Green Sectors:  the Case of Renewables,” Cathleen Cimino and Gary Hufbauer estimated that trade remedy law applications are reducing global trade in renewable energy goods by $14 billion annually which, they calculated, “translates into a global trade loss of approximately $68 billion over 5 years,” with over 91 percent of the global reduction of imports involving cases initiated by the European Union and the United States.  Over 70 percent of the reduced trade has been in solar energy and, with many pending solar cases, is growing.  Cimino and Hufbauer conclude, “By stifling competition [with “traditional technologies (coal and natural gas)”], trade remedies probably slow the convergence between renewable and conventional electricity costs.”  They add, however, that “the main driver of convergence has to be new technology, beyond what is on offer in any country today.”   Unspoken is that such new technology requires  government help, at least as traditional technologies benefit still and benefited historically, and that trade remedy laws stand in the way.

A NEW TREATY SHOULD ENABLE PUBLIC INVESTMENT IN GREEN TECHNOLOGY

            Our comments are intended to join others identified by Cimino and Hufbauer who have called for adjustments in the application of trade remedy laws to green technologies.  Cimino and Hufbauer observe that, “Concerns that environmental disputes will undermine progress toward curbing greenhouse gas emissions underlie the calls to reform laws governing trade remedies and dispute procedures.”  They note, and we agree, that “These calls may find resonance in the plurilateral talks announced by a group of 14 countries,” the very talks that occasion these Comments.  Cimino and Hufbauer note a call for a “peace clause” from Lester and Watson (2013), subsequent to Feldman’s critique of trade law in this sector in January 2012, followed in December 2012 by his appeal for an international agreement to curtail trade remedies on subsidized green technology.  Cimino and Hufbauer review a number of proposals advanced in 2013 to reduce the impact of trade remedies on the development of green technologies.

            Not all trade remedy laws are alike, and not all are susceptible to or in need of international agreement.  International treaty negotiations will not lead to a public interest clause that would enable the United States to settle disputes the way the European Union has been settling solar disputes with China.  Nor should there be an effort to change restrictions on local content requirements. 

           The United States has accused India of applying local content requirements to solar development. Local content requirements retard research and development because they exclude lessons from other countries.  To the extent they exist, the United States is right to challenge them.  But investment in research and development of knowledge and products that will reduce the use of fossil fuels, regardless where those investments are made  and notwithstanding that they may help local enterprises before reaching  those further away, can, and should be, regarded as a service to a global public.  Climate change is everyone’s problem and everyone should be investing (a more useful and appropriate term than “subsidizing”) in solving the climate change problem.

            Countervailing duties and antidumping are both designed as remedies for unfair trade, but they address different challenges.  Antidumping concerns prices, which are set by companies; countervailing duties concern financial contributions from governments.  The United States has entered into numerous agreements encouraging foreign governments to invest in green technologies. It makes no sense to encourage or induce such investments and then turn against the results through trade remedy proceedings.

            The idea advanced here concerns only countervailing duties because the concern here is to stop asking governments to invest in the cause of alternative energy, on the one hand, while inhibiting, on the other hand, the export of goods resulting from those investments. There is no good reason for a company with a subsidized product then to dump it, selling it for less than it costs to make it, or selling it abroad for less than the price it would charge at home. The investments promote science and technology; dumping promotes unfair competition.

            There are complications arising with state-owned enterprises (“SOE”) and non-market economies (“NME”) because there can be difficulty in distinguishing between state investment through financial contributions and unfair competitive advantage through price management.  However, the United States Department of Commerce purports to measure separately subsidies and dumped prices. Consequently, the Department of Commerce already claims a methodology that would enable it to identify financial contributions and exempt them from trade remedy actions.

            As Cimino and Hufbauer point out, several scholars have offered a range of trade remedy law modifications, from a complete “peace clause” to limiting tests that might reduce the number of cases or shrink their impact.  Cimino and Hufbauer cautiously dismiss the complete peace clause as “ambitious” and “not politically feasible at this juncture,” but the present is not necessarily the juncture of an international agreement, and as President Obama has recognized, there is nothing more urgent, warranting “bold ambitious goals”, than arresting climate change. 

            The United States wants to assert global leadership to save the planet.  What may seem “politically feasible at this juncture” should not define such leadership.  There is no greater paradox in President Obama’s desire to “lead the world in a coordinated assault on a changing planet” than for the United States, repeatedly and systematically, to keep out of world trade green technologies developed and produced, in some part, by the actions of governments to help achieve the universal goal of saving the planet.

            A common objection to subsidies is that they distort markets, but fossil fuels have been advantaged by accumulating more than a century of government investments that now distort competition for access to the electricity grid.  One solution is to remove those advantages, but that approach would require turning back the clock and rewriting the tax code, which would be impractical and surely not enough.  The United States’ existing fossil fuel infrastructure is here to stay, but green technologies need to be given the opportunities to develop so that their environmental benefits and commercial viability can be evaluated prudently in relation to the existing system of energy supply.  Consequently, the second solution is inescapable, providing the financial support necessary to accelerate invention, innovation, and technological change.

            A further common objection is that investments in developing new products may give unfair advantage to the products of one country over another.  Yet, if Americans could buy more and cheaper solar panels, it would mean more and better jobs overall for Americans.  Innovative or creative Americans could still compete with the Chinese product, by improving upon it or even replacing it with something else.  Achievement of the collective goals – reducing hydrocarbon use and expanding recourse to alternative energy production – would be much closer than it could ever become under current laws, policies, and practices.

            Improvement in the technologies and in the accessibility and affordability of alternative energy sources is not a zero sum game.  It should matter little which country accelerates an improvement that, by getting everyone closer to the goals that will save the planet, serves everyone. 

            There is no better way to adjust laws and practices to encourage research, development, and dissemination of goods and knowledge and techniques combatting climate change, than through an international agreement.  The fourteen countries that launched negotiations at the World Trade Organization with a modest tariff-cutting proposal were not modest in their ambition.  They described their proposal as “one of the most concrete, immediate contributions that the WTO and its Members can make to protect our planet,” a program intended to “protect our environment and address climate change.”  They saw the tariff-cutting only as a beginning, and only as part of something grander, “committed to exploring a broad range of additional products in the context of a future oriented agreement able to address other issues in the sector and to respond to changes in technologies in the years to come, that can also directly and positively contribute to green growth and sustainable development.”

            The USTR Notice inviting Comments did not reflect fully the ambition of the APEC countries, nor faithfully the ambitions of President Obama in his climate change address at Georgetown University on June 25, 2013.  While the TPSC Chair invited comments on all relevant matters, it focused “in particular,” in three of its four parts, on specific products. Fortunately, in the fourth category of invited Comments, the TPSC Chair asked “how best to ensure that such an agreement remains relevant into the future.”  

            A new agreement will not be relevant into the future without ambition beyond tariff-cutting because innovation should mean an endless cycle of new products, and innovation will be encouraged only through government investments that current rules will punish.  Countries investing to protect the planet should not have their products kept out of world trade because they invested.  They should be rewarded, not punished, congratulated, not sued.  These talks are the opportunity to make the rules accommodate the reality of climate change.  Adherence only to the more modest ambition of tariff reduction would be less than the APEC countries seek, an opportunity missed which might never timely present itself again.

介绍

          美国贸易代表办公室于今年3月28日代表贸易政策委员会刊登通知,欢迎社会各界就十四个世贸组织成员提议展开的环保产品谈判各抒己见。这一即将展开的谈判建立在APEC领导人于2012年提出的、减免五十四项环保产品关税清单基础之上。

          APEC领导人认识到环保产品的自由贸易至少可以帮助实现两个目标:增进自由贸易,以及减缓全球气候变化。环保产品的全球流通将推动这些产品的广泛使用、减少碳足印,最终帮助控制气候变化。

减免关税还不够

          减免关税总是能够促进全球贸易,因此往往是所有贸易协定谈判争取实现的首要目标。然而,减免关税并不能显著促进环保产品流通、实现控制气候。

          联合国气候变化委员会最近发布的报告指出:全球变暖的主导因素是人为因素,占95%以上;现在控制气候变化仍为时不晚,但是时不待人;只有重大研发突破才可实现控制气候变化。后者需要投入大比资金,仅仅依靠企业的力量显然不够,因为企业关注短期效应。

          APEC环保产品清单中列出的众多产品大多旨在减少碳排放、提高以碳氢化合物为原料的能源生产的生产效率。这一方案并未提出通过替代能源减少碳排放,而这正是切实减少排放的唯一有效途径。

必须帮助发展其他能源

          替代能源必须和矿物燃料在市场中竞争。矿物燃料多年来一直局限于煤炭、石油和天然气开采,而这些传统行业在替代能源急需发展、以更有力地和矿物燃料竞争时也不断发展扩大。

          一个多世纪以来,北美政府为石油天然气产业提供研发、开采和销售补助。国际能源组织2011年报告指出,国际经合组织(OECD)成员国共为矿物燃料生产提供超过250项措施补助。美国能源信息管理中心2010年6月的报告则指出,2008年世界各国共支付55.7亿美元补助矿物燃料产业,却仅仅为替代能源产业提供4.3亿美元补助。此外,非政府组织—— SourceWatch 报告显示,大部分矿物燃料补助已经被永久写入美国税法,而为替代能源提供的补助却短暂且有限。

          正因为多年来为矿物燃料提供的补助已被永久写入美国税法,而这类补助远远超过为替代能源提供的研发支持,对于消费者而言两类能源的价格差别迥异。只要差异不缩减,消费者将忽略环境影响,依旧偏爱使用矿物燃料。在公众事业领域,电网平价决定一切,决定究竟是风能、太阳能、还是矿物燃料生产的电力进入消费领域。

          因此只要矿物燃料生产的电力交割价格低于替代能源(风、太阳能、地热等)电力,公众事业依然将依赖矿物燃料。目前页岩天然气开发使得传统能源生产成本进一步降低,替代能源进一步丧失竞争优势。只要传统能源生产依然享受补助,长达一个世纪的研发补助使之继续享有替代能源无法超越的优势。

控制气候变化的战略

          四大战略可以控制气候变化:(1)通过提高生产效率或者添置设备,以控制或减少传统能源生产产生的污染;(2)向传统能源生产增收税收,这是承认未来仍将依赖传统能源、但旨在鼓励减少依赖的方法;(3)指令替代能源的使用必须达到一定比例,因此接受更高的能源价格,但可减少碳氢化合物排放;(4)发展更先进更优秀的替代能源,如效率更高、价格更具竞争力的太阳能板和风力发电机组。

          前两大战略几乎肯定将继续依赖以煤炭为代表的传统能源,美国以及许多发展中国家仍然依赖传统能源。第三个方案必将而且将永远受无法实现电网平价的限制,因为公众电网提价将导致通货膨胀,这也等同于不平均地征收销售税。只有第四个方案是长久有效控制传统能源引发的气候变化。这一方案要求政府提供补助,甚至要求达到为传统能源提供的补助水准。但是目前提议的谈判似乎仅仅局限于第一种战略。

抓住机遇进行卓有成效的谈判

          如果认为更有效地使用传统能源意味着必须继续使用这一能源,因而依照第一种方案仅仅为环保产品提供优惠关税不足以根本解决问题。方案一是延缓气候变暖,拖延时间为替代能源发展争取时间。着眼于环保产品的国际谈判为实施这一方案创造了机会。

          绿色能源需要政府支持才能与传统能源竞争。创新、研发可以控制气候变暖,为公众造福的事业也需要公众支持。国际经合组织(OECD)商业工业顾问委员会赞同这一观点:“补助可促进从传统能源向正在商业化的新能源转型,新能源的价格是否能够让人承受是主要障碍,而现有的公众设施也使得引进新能源举步为艰”。但是,最关键的问题是反补贴法不鼓励乃至惩罚补助。

贸易法是最大障碍

          举世公认,发展以太阳能和风能为代表的的新绿色科技对地球未来至关重要。但是欧美太阳能产品生产商却针对中国产品展开贸易行动,而中国也以牙还牙针对欧美其他太阳能产品采取报复措施。太阳能产品贸易大战导致贸易递减、价格提升,减少市场上价格合适且具竞争力的产品。虽然气候专家和经济学家多次要求政府减少对碳氢化合物能源的依赖,增加使用太阳能,政府却使用贸易法惩罚鼓励使用太阳能的政府。

          2013年7月中欧达成太阳能板案协议,为中国出口至欧盟的太阳能板设立最低限价,虽然这一价格提高了中国产品价格但仍让中国产品在欧盟市场保持显著市场份额。但是,欧盟仍于2014年4月开始对中国产、用于制造太阳能版的晶体征收关税,虽然这一市场较小。

          2013年夏,美国试图通过美欧中三边协商解决太阳能板纠纷,但是美国贸易法没有公众利益这一条款、而且依赖起诉企业的同意,因此无法参与谈判。因此美国贸易法的不通融、倾向于申诉人的特性导致美国被排斥在谈判之外。

          生产用于制造支撑风力发电机铁塔的钢铁生产企业是导致风力发电成本上涨的主要原因。即使风塔支撑的发电机生产商不断研发,更先进的发电机组带来的效率增长也被钢铁价格上涨抵消了。当发电机生产商讨论平价时,风塔生产商却转身置之不理,于是这一停滞不前的产业阻碍了不断创新、具有出口潜力行业的发展。

          自2012年向中国以及越南生产的风塔征收反补贴、反倾销税以来,风力发电在美国两岸以及夏威夷、波多黎各岛停滞了。(麻省一海洋风力发电项目仍按计划进行,但尚未开始施工,同时小规模项目仍在纽约、康涅狄格、马里兰和俄勒冈州有条不紊地进行。)这些项目使用中越两国生产的风塔,因为无论是从成本还是物流角度看,美国生产商无法将本国生产的风塔从产地运送至这些地点。

          这些案件折射出的自相矛盾之处不容忽视。总体而言,生产太阳能板的企业状况良好但很少创造就业机会。安装、维护太阳能板却颇费工时,同时太阳能板安装将减少碳氢化合物能源的消耗。但是欧美太阳能板生产商却成功地将矛头指向中国,指责中国政府提供的补贴使得中国企业更有效率,这一状况导致美国损失就业机会并减少太阳能板安装。

          全文请见英文

                                                                                                                               翻译:朱晶

 

 

Federal Circuit Upholds Constitutionality Of Legislation Overturning Its GPX Decision That Countervailing Duties May Not Be Applied To Non-Market Economies 美联邦上诉法院认为向非市场国家征收反补贴税符合宪法

Posted in CVD

中文翻译请点击这里

HERE WE GO AGAIN

CAFCThis blog has been analyzing for more than four years legal disputes over whether the U.S. Department of Commerce (“Commerce”) may apply countervailing duties (“CVDs”) to imports from non-market economies (“NMEs”), particularly China.  Our first comments were posted October 21, 2009 (“U.S. Court Decision Ought To Change Chinese Thinking “Revised and Expanded”).  Since then, we have been following closely the “GPX” line of cases.  The latest development, a ruling of the U.S. Court of Appeals for the Federal Circuit (“the Federal Circuit”) on March 18, 2014, arose as a direct result of GPX, but in a different case, Guangdong Wireking Housewares & Hardware Co., Ltd. v. United States (“Wireking”).

SUMMARIZING THE PERTINENT HISTORY

The history of the GPX line of cases is set out by Elliot J. Feldman and John Burke in Testing the Limits Of Trade Law Rationality: The GPX Case and Subsidies in Non-Market Economies which appeared in the American University Law Review in May 2013.  The story began with Commerce’s 2006 decision to apply CVDs to China, notwithstanding its contrary administrative practice of more than 20 years.  After several years of administrative and judicial proceedings, the Federal Circuit in December 2011 found that Commerce’s application of CVDs to China, while Commerce still treated China as an NME, was contrary to the law as it existed at that time.  The U.S. Congress reacted by enacting new legislation explicitly authorizing Commerce to impose CVDs on imports from NMEs, retroactive to 2006.  The new law also instructed Commerce to reduce the antidumping duties applied to imports from NMEs when antidumping and CVD duties imposed on those goods otherwise would be double-counted. However, the double-counting provision was to apply only to investigations started after March 13, 2012.

GPX International Tire challenged the constitutionality of the new law, contending it (1) retroactively changed the outcome of the GPX case after the Federal Circuit had issued its December 2011 decision, in violation of the ex post facto clause of Article I, Section 9 of the U.S. Constitution (holding parties liable to a law that did not exist when they committed the alleged offense); and (2) created a special rule applicable only to GPX and to a few other cases in which Commerce may impose both CVD and antidumping duties on the same merchandise from an NME without attempting to avoid double-counting, thereby violating the Constitution’s  equal protection clause (which guarantees all similarly situated parties the same treatment under the law). 

The Federal Circuit dismissed the ex post facto argument in the GPX case because the Court had not yet issued its mandate when Congress enacted the new law.  (The court’s decision does not become final until it issues a “mandate.”  Rule 41(b) of the Federal Rules of Appellate Procedure provides that “[t]he court’s mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later.”  Because the U.S. Government petitioned for a rehearing in the GPX case, the Federal Circuit had not yet issued its mandate in that case when the new law came into effect on March 13, 2012.) However, the Federal Circuit concluded that there might be merit in the second Constitutional argument, concerning the equal protection clause, and remanded the case, on May 9, 2012, to the U.S. Court of International Trade (“CIT”).  The Federal Circuit instructed the CIT to make “a determination of the constitutionality of the new legislation and for other appropriate proceedings.” 

The CIT found, in its GPX VII decision of January 7, 2013, that the new law is constitutional, but remanded the case to Commerce to address certain calculation issues.  Commerce recalculated the CVD rate and issued its redetermination on remand on April 16, 2013.  The CIT then upheld Commerce’s remand determination in its GPX VIII decision, issued on October 30, 2013. 

GPX and several other parties appealed to the Federal Circuit on January 2, 2014, filing a brief on March 18, 2014 that challenged the portion of the new law that imposes CVDs on a retroactive basis.  They argued that this retroactivity violates the due process and ex post facto clauses of the U.S. Constitution.

THE IMPERTINENT OUTCOME

Wireking, which involves certain kitchen appliance shelving and racks imported from China, is a case similarly situated with a limited number of other cases caught between the retroactive application of the authorization to apply CVDs to NMEs, and the prospective application of the instruction to cure double-counting.  Guandong Wireking, like GPX, challenged the constitutionality of applying the new law on a retroactive basis, claiming that such retroactivity violates the ex post facto, equal protection and due process clauses (assuring that persons cannot be deprived of property without proper notice and an opportunity to be heard) of the U.S. Constitution. 

On March 12, 2013, the CIT, in Wireking, concluded that, even if the new law were retroactive, it did not violate the ex post facto, due process or equal protection clauses.  Unlike in GPX, there were no other issues to be resolved in Wireking.  Therefore, the constitutionality of the new law was ripe for appeal to the Federal Circuit in Wireking, ahead of GPX.  Guangdong Wireking appealed the ex post facto issue to the Federal Circuit, but abandoned the other constitutional claims.

The Federal Circuit agreed with Guangdong Wireking that the new law is retroactive.  It also reaffirmed that its December 2011 decision in GPX was a correct interpretation of the countervailing duty law as it existed at that time and, consequently, the legislation Congress passed in 2012 represented a change in the law that Congress applied retroactively.

Having decided that the new law is, as Guangdong Wireking complained, retroactive, the Court then needed to decide whether such retroactivity was punitive, or merely remedial.  The retroactive application of criminal statutes and other laws that are punitive is prohibited by the ex post facto clause, but laws that are not punitive may be applied retroactively without violating the U.S. Constitution.

The Federal Circuit found the new law not to be punitive because: (1) Congress’ purpose was to modify the civil regulatory scheme, not to impose punishment; (2) the new law does not stray from the remedial nature of trade duties generally; and (3) “Wireking has not shown, let alone by the clearest proof, that the absence of a retrospective double counting provision negates the law’s predominantly remedial impact.”  Having found that the new law is not punitive, the Federal Circuit affirmed the lower court’s decision that the new law applying CVDs to NMEs on a retroactive basis does not violate the U.S. Constitution.

THERE WILL BE MORE

There will be at least one more chapter in the GPX story.  GPX itself is now back at the Federal Circuit challenging the constitutionality of legislation that GPX claims violates the ex post facto and due process provisions of the Constitution. 

The Federal Circuit’s decision in Wireking should doom GPX’s ex post facto claim, but Wireking left unresolved whether the new law violates the due process clause.  The due process clause of the Fifth Amendment to the U.S. Constitution provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.”  GPX argues that the legislation authorizing CVDs on imports from NMEs is a new tax being applied retroactively without notice to the affected importers and with harsh and oppressive effects deprived it of property without due process of law.  The CIT disagreed with this argument in its GPX VII decision, finding that GPX failed to meet its burden to show that Congress did not have a rational basis for passing the new legislation or that GPX had a vested interest in not having the CVD law applied to its imports.  The Federal Circuit should resolve this issue later this year or early next year in a decision that would become GPX IX.

Were the Federal Circuit to find the law constitutional under the due process clause, the decision may conclude the GPX story.  CVD orders on goods from NMEs would continue to apply, regardless whether investigations began or orders were imposed before or after March 13, 2012.  Were the Federal Circuit to find the law unconstitutional, however, there would be at least one more chapter to write, as GPX and other companies affected by the retroactive application of the new law seek to have those CVD orders revoked based on the Federal Circuit’s decision. 

Even were the Federal Circuit to overturn the CIT and agree with GPX that the new law violates the due process clause of the U.S. Constitution, that decision would apply only to the GPX case and the few other cases in which Commerce applied CVDs to imports from NMEs between November 20, 2006, and March 13, 2012. The due process argument, which is the only question still to be resolved by the Federal Circuit, is limited to the duties imposed as a result of CVD investigations initiated between the two effective dates.  The authority to impose CVDs on cases initiated since March 13, 2012 will remain secure and final under U.S. law.

对本案的关注

本博客过去四年多里一直关注就美国商务部是否可向非市场经济体出口品征收反补贴税而展开的一系列案件。2009年10月21日我们刊登了第一篇分析文章《美国法院裁决改变中国思维》。此后,我们持续跟踪分析GPX公司系列案件。这一领域的最新进展是美国联邦巡回区上诉法院于2014年3月18日在另一相关案件中做出关键裁决。

追溯历史

本所律师费德门博士和Burke律师在2013年5月出版的《美国大学法学研究》上发表了《探索贸易法逻辑限制:GPX案件和非市场经济体补助》一文。案件起源于美国商务部于2006年改变20多年来的惯例,决定向中国实施反补贴法。经过多年行政以及法律行动,上诉法院于2011年12月裁定美国商务部在视中国为非市场经济体的同时对中国产品征收反补贴税不合法。美国国会随即通过法案,授权美国商务部向非市场经济体出口至美国的产品征收反补贴税,并可追溯执行至2006年。同时,这一法案要求美商务部在同时向非市场经济体出口征收反补贴、反倾销税(双反税率)时,削减反倾销税,否则将被视为重复征税。但是,重复征税条款只适用于2012年3月13日后展开的双反调查。

GPX国际轮胎公司就这一法律是否符合美国宪法提出质疑:(1)美国联邦巡回区上诉法院已经于2011年12月做出裁决,但这一法案追溯至2006年,违反了宪法第一章第9款追溯(ex post facto)条款(法律尚不存在,涉案方却需要面对法律指控、承担法律责任);(2)该法案设置了只适用于GPX等个别案件的特殊条款,即在2012年3月13日前展开调查的案件中向非市场经济体出口征收双反税率时无需避免双重征税。因而违背了宪法中一视同仁给予保护的条款(这一条款旨在确保处于同等状态下的各方受到法律公平对待)。

联邦上诉法院驳回了ex post facto条款指控,因为当国会通过该法案时,上诉庭尚未发出责令——mandate。(法院裁决只有在发布责令后才正式生效,详见上诉庭法规第41(b)条。美国政府在裁决发布后7天内就要求重新审理GPX案,因此上诉法院在法律生效日——2013年3月13日尚未下达责令。)但是上诉法院认为GPX的第二项指控可能合理,因此于5月9日向美国国际贸易法庭(CIT)发布责令。上诉法院责令美国国际贸易法庭就新法案以及相关案件是否符合美国宪法重新审判。

CIT于2013年1月7日在GPX VIII 案中裁定认为新法案符合美国宪法,但同时责令美国商务部重新计算某些产品的惩罚性关税税率。美国商务部审核了反补贴税率,并于同年4月16日发布修正后的裁决。CIT在2013年10月30日发布的裁定中支持商务部修正后的裁决。

GPX及其他多家企业于2014年1月2日向联邦巡回区上诉法院上诉,其3月18日递交的诉状指出新法案中追溯式征收反补贴税违反宪法。上诉方认为这种追溯式征税违背了美国宪法中的追溯条款。

不恰当的结果

广东伟经日用五金制品有限公司(Wireking)生产销售厨房柜架,和GPX一样面临被征收反补贴税、但却不能免受双重征税困扰的困境。因此,广东伟经(Wireking)也针对新法案追溯征税是否合法展开上诉工作,声称这违反了宪法追溯征税、同等保护以及正当程序(未经正当通知和申诉,不可剥夺任何法人财产)条款。

CIT于2013年3月12日就广东伟经案发布裁决,裁定即使新法案追溯适用于法律生效前的案件,这并不代表这一法案违背了宪法追溯征税、同等保护以及正当程序条款。和GPX案件不同,广东伟经案中不包括其他待而未决的问题。因此,该案已经时机成熟,可以上诉至美国联邦巡回区上诉法院。广东伟经选择仅针对追溯征税进行上诉。

上诉法院同意广东伟经认为2012年法案是追溯征税这一观点。其次,该法院也认同该院2011年12月的GPX案裁决正确解释了当时存在的反补贴法。因此2012年法案中包含的、向自2006年以来出口的产品征收反补贴税这一条款代表了法律变革。

虽然法院认同广东伟经提出的2012年法案是追溯征税这一观点,法院需要进一步裁定这种追溯征税是惩罚性、还是补偿性。宪法追溯条款明令禁止追溯性使用刑事条例或其他惩罚性法规,但是追溯性使用非惩罚性法规并不违背美国宪法。

上诉法院认为这一法案并非惩罚性,因为(1)国会的目的是为了修改民事法律体系,并非为了惩罚某人;(2)整体而言,新法律并没有改变惩罚性关税的补偿性质;(3)“广东伟经并未出示证据证明缺乏避免追溯性双重征税条例就彻底改变了该法案的补偿性质”。

绵绵无绝期

至少GPX案还有续章。目前GPX再次上诉,要求联邦上诉法院裁定2012年贸易法案违背了宪法追溯征税和正当程序条款。

上诉法院在广东伟经(Wireking)一案中就追溯征税做出的裁决使得GPX案仅剩下2012年贸易法案是否违背了宪法第五修正案正当程序条款这一争议。GPX认为新法案授权向非市场经济体出口的商品征收反补贴税是追溯征收新的惩罚性关税,但却未能提前通知受影响的进口商,是未经正当程序、残酷剥夺他们的财产。CIT在GPX VII裁定中否定了这一观点,指出GPX未能提供证据证明美国国会通过这一法案时缺乏逻辑基础,也未能证明其涉案利益。上诉法院将会在今年或明年就此案做出裁决,即案例法GPX IX.

如果上诉法院认为2012年贸易法没有违背正当程序条款,那么这一裁定将为一系列GPX案画上句号。无论反补贴调查开始日期或是反补贴令的发布日期是在2012年3月13日之前或是之后,针对非市场经济体产品发布的反补贴令都将有效。如果上诉法院认为2012年贸易法案违背了宪法,那么这一系列案件至少将再续写一章——GPX及其他受法案影响企业将会要求美国商务部根据上诉法院裁决废止反补贴令。

即使上诉法院同意GPX的观点——新贸易法案违背了正当程序条款,并驳回CIT裁决,上诉法院的裁决也仅适用于GPX等在2006年11月20日至2012年3月13日期间面临美国商务部反补贴调查的企业。正当程序条款是这一系列案件中唯一悬而未决的问题,但这一条款仅适用于在这期间开始的反补贴调查。2012年3月13日后展开的反补贴调查享受新法律保护,不受这些案件影响。

翻译:朱晶

 

THE TRADE MUDDLE: A PRIMER 贸易糊涂账

Posted in Trade Negotiations

中文翻译请点击这里

Crossing All The “T”s Will Not Dot The “I”s:  Some Of The Politics Of Trade

            Which comes first, TPP (the “Trans-Pacific Partnership”) or TPA (“Trade Promotion Authority”)?  Alphabetically, and logically, TPA.  Strategically, TPP.  Politically, neither is likely to come at all. Nor, then, is TTIP the “Trans-Atlantic Trade And Investment Partnership”), which would be the most important of the “T”s for trade, and for economic development, and the only one with an “I” to dot.  It is way behind TPA and TPP — on the calendar, in negotiation, and in political prospects. 

           Congress TPA refers to “Trade Promotion Authority,” the nomenclature assigned by the Bush Administration to “fast track” during the period when the Bush Administration seemed to believe it necessary to rename anything associated with the Clinton Administration.  Fast Track expired in 1994.  Congress declined to restore or renew TPA to Clinton in his second term.  Bush, placing a high priority on presidential authority to negotiate international trade agreements, renamed fast track (dissociating the reference from the authority denied to Clinton). He then squeezed TPA through Congress by a three vote margin, only once, with expiration long before he left office.

            The United States Constitution confers authority over international commerce on Congress, but Congress collectively cannot reasonably negotiate international agreements.  Presidents have suffered, not infrequently, humiliating defeats of agreements they negotiated without full congressional partnership, most famously the League of Nations. 

            U.S. trade partners have understood that a President’s signature on an international agreement is only as good as the congressional assurance to back it, and that confidence has to precede the conclusion of an agreement.  When Presidents sign agreements without full, prior congressional engagement, they must submit the agreement to a Congress almost certain to change it.  International partners always have understood that the agreement would then be subject to renegotiation, possibly through the President but ultimately and effectively with 100 Senators (for treaties) and 435 representatives (for “agreements”).  

            “Fast track” (now TPA) confers upon the President authority to negotiate and sign international trade agreements that Congress may accept or reject but cannot change. TPA legislation, therefore, contains negotiating guidance:  it instructs the President on what may, and what must, be included, what will be acceptable and what will not be acceptable.  It informs the President of congressional priorities and instructs on negotiating parameters.

            Without TPA, the President is without congressional guidance and priorities, and without congressional commitment.  Without it, his priorities and objectives may coincide with Congress, benefitting perhaps from intensive consultations, but he is without any approval of Congress as a whole and his negotiating partners are without any assurance that the President’s word is backed by Congress.  Although there is no guarantee that Congress will accept a negotiated trade agreement, the President is expected to keep Congress fully informed and not to sign an agreement he is not confident will win congressional approval. TPA provides a template for judging the proposed deal.

            For TPA to have any useful meaning, Presidents need to be negotiating with authority already conferred because both international partners and the President need to know that the President is negotiating an agreement Congress in principle has accepted (because it has been negotiated according to the guidelines Congress has  provided) and cannot change.  The President can expect passage only when he has reason to believe Congress knows thoroughly what he is negotiating. 

            While the logic dictates that TPA must come first, the Obama Administration has operated for five years on the theory that it can come second.  The Administration is not without reason. Obama inherited three bilateral trade agreements signed by President Bush after the expiration of his trade promotion authority.  Congress, declining the “up or down” vote required by fast track, made certain objections clear, particularly as to labor and environment provisions.  The partners to these agreements were either weak and small (Panama and Colombia) or in particular need (South Korea), enough to renegotiate certain provisions with Obama notwithstanding Bush’s signature.  Obama then submitted them successfully to Congress, without TPA. 

            Isolated bilateral deals with weak partners (Colombia represents less than one percent of U.S. trade, Panama much less) or partners with geostrategic needs for American partnership (South Korea) should not be mistaken as useful precedents for multilateral agreements.  Renegotiation with a single bilateral partner is not a comparable task, and bilateral partners are far more willing to put their best deals on the table without confidence in Congress than numerous partners in, inevitably, more complicated negotiations.

            Even with TPA, multilateral negotiations can be especially difficult, as the Bush Administration ruefully learned over failures in the Doha multilateral round and the highly touted Free Trade Area of the Americas (“FTAA”).  Bush devolved onto bilateral agreements (with Australia, Chile, Singapore, Peru, Bahrain and Morocco – and Jordan, signed by Clinton but requiring renegotiation by Bush — plus the three bilateral deals passed on to Obama) only after he failed to make progress multilaterally. These agreements had to substitute for a larger and failed geopolitical strategy to isolate Brazil in the Americas (the FTAA) and to soften wars in Afghanistan and Iraq with trade in the other countries of the Middle East (Bahrain, Morocco, Jordan). Economically, of all the Bush deals, only the Korean FTA meant very much. Moreover, Bush did bilateral deals with four of the eleven TPP partners, in addition to Canada and Mexico already in NAFTA and South Korea.  Seven of the twelve possible TPP partners already have free trade agreements with the United States.   

            Under recent pressure about the lack of transparency and communication, the Obama Administration is scrambling to save TPP (the Trans Pacific Partnership) by acquiescing to the reality that negotiating partners have not been forthcoming in the absence of TPA.  After proclaiming the likely completion of negotiations by the end of 2013, and then announcing probable completion by the end of February 2014, the Office of the U.S. Trade Representative finally admitted in a closed door briefing on February 11, according to Inside U.S. Trade, that TPP “negotiators still face a large number of major outstanding issues, such as rules on intellectual property, state-owned enterprises and labor rights.” TPP 2

            No decision has yet been made to include Korea in TPP and, according to Washington Trade Daily, “Top U.S. and Japanese trade officials were unable to reach agreement on bilateral market access issues – including automotive trade—that stand in the way of conclusion Saturday [February 22] of the Trans Pacific Partnership.”  Worse, perhaps, for the Administration, as Inside U.S. Trade has observed, some House Democrats have “conflated” TPA with the debate over TPP, complaining of a secretive process and a failure to consult with Congress.  “Lawmakers,” Inside U.S. Trade reported on February 14,”are taking positions on the fast-track bill fueled by their opposition to TPP or vice-versa.” 

            Had TPA been granted Obama prior to the TPP negotiations, or even at an earlier stage, Congressmen could not conflate them, the form and extent of consultations would have been mandated, the contours of the negotiations would have been agreed.  Hence, most of the criticisms of TPP now would not have been possible.  The TPP negotiations likely would have advanced further because trade partners would have had more confidence in Obama and would have been more willing to table “final offers.”  The politics of trade negotiations in the Obama Administration has been the subject of several previous articles on this blog, including An Obama Trade Policy Courtesy Of The Tea Party and TPP, TTIP, And Congress: The Elephant In The Room.

            Theoretically, passage of TPA still could precede TPP, and the final negotiations of TPP could conform with TPA requirements.  However, that sequence appears unlikely.  The bipartisan Camp-Baucus bill to confer upon the President Trade Promotion Authority, carrying the imprimatur of the Republican Chairman of the House Ways and Means Committee and the Democratic Chairman of the Senate Finance Committee, was greeted at birth with the outspoken opposition of the Ranking Minority member of the Ways & Means Committee, the House Minority Leader, and the Senate Majority Leader. The Chairman of the Senate Finance Committee promptly abandoned the bill to become the U.S.  Ambassador in Beijing, and his successor as Finance Committee Chairman declined to endorse the bill and, again as reported by Inside U.S. Trade, “clearly signaled that dealing with a pending fast-track bill is not among his immediate priorities.”

            President Obama did not declare a strong interest in TPA until spring 2013, and then left the matter to Congress.  The TPA law that expired in 2007 had been created in 2002.  Many in Congress said a new law would need to address new things, with Democrats especially exercised about alleged “currency manipulation,” labor and environmental issues. Traditionally, none of these subjects has been part of international trade, although labor and environment concerns were articulated in side letters to NAFTA and were central to the Obama renegotiations of the three inherited bilateral agreements from President Bush.

            The Camp-Baucus bill mimics the 2002 legislation. Democrats have sought to amend U.S. trade law unsuccessfully for currency manipulation since before the recession, and Congress people Pelosi (Minority Leader) and Levin (Ranking Ways & Means Committee member) both rejected the Camp-Baucus bill because it contains no currency provision.

            Beyond the details of the Camp-Baucus bill, there are more fundamental congressional divisions.  House Speaker Boehner says he cannot muster the 218 Republican votes needed to pass the bill, and some say that 50-70 Republicans oppose it for various reasons (implacable opposition to Obama; distrust of Obama to implement or negotiate in good faith; inadequacy of the legislation).  There may be fewer than 50 Democrats supporting TPA in the House, and Senator Wyden, the new Chair of the Senate Finance Committee, not only accords it no priority:  he says he will not bring the bill to the floor of the Senate. 

            Obama demurred when asked at a meeting of the House Democratic Caucus in early February whether he would make known to Congress the terms of the TPP prior to a congressional vote on TPA.  No surprise, then, that concerns related to one conflate with the other. In November, three-quarters of the Democrats in the House advised the President in writing that they would not support a revival of TPA as written in 2002, yet the White House endorsed the Camp-Baucus bill. 

            Despite a two sentence rallying cry in his hour-long 2014 State of the Union Address, Obama never mentions international trade among his highest priorities.  According to Inside U.S. Trade, “An official readout from the White House of Obama’s meeting with House Democrats did not mention trade as a topic of discussion.” 

            There is bipartisan consensus on the congressional fate of TPA and TPP.  Neither stands any chance of congressional approval without a forceful, sustained White House engagement, not in 2014, probably not in 2015, and certainly not in the last year of the Obama presidency.  Nor, even with such presidential commitment, is passage likely without a sustained educational, lobbying effort. 

            The American Chamber of Commerce has been telling the diplomatic representatives of foreign trade partners not to worry, that passage will come.  Hundreds of opposing environmental and labor groups, however, have been campaigning hard in Congress. So far, they may not outpace the expenditures and resources of business and financial interests, but they are expending more energy, and to greater effect.  Even the Vice President has uttered publicly his doubts about TPA

            Crossing the TPA “t” cannot come soon enough to save TPP, and neither will dot the TTIP “I” (as in the Transatlantic Trade and Investment Partnership).  Mexican spokesmen from the North American Summit of February 20 report that the United States is seeking to accelerate the TPP talks and bring them to a swift completion as a way to force support for TPA, a strategy that seems to misread Congress:  opposition there is explained principally by the perceived need to know and participate more in the TPP process, while the President wants to finish the deal before TPA could require keeping Congress more involved and informed. The President  promises to stay the course campaigning for a trade agenda he says will help fuel economic recovery,  but he leaves no doubt that his heart  is not really in the fight and his head is elsewhere altogether.

It’s Mostly Political Anyway

            President Obama has endorsed TPP and TTIP as additional tools for economic growth.  Some economists agree, and some don’t.          

            The only trade agreement the United States has entered with economic meaning since NAFTA and the WTO (twenty years ago) is with South Korea.  According to Rep. Marcy Kaptur (D-Ohio), the U.S. trade deficit with South Korea has doubled since KORUS was signed.  U.S. exports declined; imports from South Korea increased.  It is not a story that sells subsequent agreements on Capitol Hill. 

            The genesis and negotiating contradictions of TPP are important to appreciate.  The argument that 40 percent of world trade would be represented in the Trans Pacific Partnership depends upon the inclusion of South Korea and Japan, neither of which is yet certain.  U.S.–Japan negotiations appear to be at an impasse over agriculture (as well as the automotive trade), and Australia and New Zealand are indicating that they will not make important concessions on other matters without opening more U.S. and Japanese agricultural markets.  South Korea’s primary trade partner is China, excluded from TPP, and South Korea already has unique advantages in trade relations as the only Asian country (other than Singapore) with a free trade agreement with the United States.  It is not obvious why South Korea might antagonize China, and would make important concessions or even encourage the TPP, which can only dilute its relative advantage with the United States.

            The potential impact of the TPP also depends upon the inclusion of Canada and Mexico, neither of which was involved during several years of negotiations.  The United States now rationalizes that Canada and Mexico should be part of the TPP because NAFTA needs an upgrade best accomplished in this larger Trans-Pacific entity.  Like South Korea, Canada and Mexico enjoy NAFTA advantages that could be diluted in a broader agreement.  At the North American summit convened in Toluca, Mexico on February 20, neither Mexican President Pena Nieto nor Canadian Prime Minister Harper expressed great enthusiasm for the TPP, and in a 1600-word joint closing statement of the three leaders, the Washington Post reported that only one sentence was devoted to the TPP

            The idea for the TPP did not originate with the United States.  Negotiations for a Pacific partnership grew out of concern from smaller Asian countries enlisting the United States to help them offset the growing authority and influence of China.  The United States has protested that the TPP was not designed to exclude or contain China, but instead was to be an agreement of such high economic and free market standard that the state-controlled economy of China probably was not ready; eventually, the United States said, China would be welcome.  Yet, one of the more significant economies in the original group of countries is Vietnam, certainly no less a non-market economy than China, and much further behind in economic development.  It is difficult to demonstrate that Vietnam is more able to take on a “high standard” agreement than China. 

            As discussed on this blog in Healing More Important Than Dealing in The Pacific, collateral geostrategic issues, such as the confrontation between China and Japan in the East China Sea, have led the United States to be more transparent about motives.  The United States has taken Japan’s side in that conflict and, in the process, has articulated publicly concerns about China’s growing power, notwithstanding simultaneous assurances to China denying any intent to limit or contain China.  One consequence of these public contradictions has been to emphasize that the TPP is at least as much about balance of power in Asia as it is about international trade and jobs.

            TPP was the catalyst for TTIP, as the European Union worried that the Obama pivot would consign the EU to a backseat in world affairs.  TTIP negotiations have served to remind the United States that, notwithstanding Asian (and especially Chinese) advances, the world’s economy remains concentrated more over the Atlantic than over the Pacific Ocean, and that common values and perspectives are far more apparent there.  TTIP has even less of a chance of succeeding than TPP, but the very existence of negotiations has played a major part in political balance.

            Trade agreements are always more political than economic. TPP and TTIP are not exceptions.  Their politics, and political purposes, are complicated by domestic political imperatives in the United States that focus on TPA. The battle over TPA is more about partisan control of Congress than about foreign relations or trade, but in this instance the President’s greatest problems are with his own party. 

Substance Doesn’t Matter

            Whether TPP is, in the terms Obama presented to Harper and Pena Nieto, “a good agreement,” is not important.  Obama told his North American counterparts that, provided TPP is a “good agreement,” Congress would approve it.  Unfortunately, that conclusion is without any foundation.  Four hundred thirty-five congressmen will vote according to their best estimate of how their votes will be judged by voters, and whether by voting they will enhance or diminish their chances to hold their congressional seats in the 2014 mid-term elections.

            Because there is political risk in voting for international trade agreements, Congressmen would prefer not to vote. Most likely, in an election year, they will not vote.  The Camp –Baucus bill, already rejected by Levin and Pelosi and probably by Wyden, will be replaced by a bill that surely will not be considered before November elections, and then likely will not be taken up in a lame duck session.   TPA now is hostage to the election cycle, and TPP is hostage to TPA.  TTIP will not jump the queue.  Congressional politics, therefore, will dispose of all of them.

What Good (And Not So Good) Could Come Of It

            The good that may be inherent in the trade agreements is not likely to come about during the Obama Administration, if ever.  Although Obama always has been a free trade Democrat, he seems never to have appreciated that pursuit of free trade requires substantial commitment in American politics, and he always has had higher priorities.  George Bush cared about trade, not health care; Obama, in his first term, was committed to health care, not trade.  He found it better to refine trade agreements already signed than to seek authority to negotiate new ones. 

            Now, in his second term, Obama is appreciating more the link between market access and American production.  He understands that trade requires reciprocity:  opening foreign markets almost always requires dealing away something protected or cherished at home.  Giving up anything at home means making political deals which, for trade, he has been unwilling to make.  It has been a lot easier to negotiate trade without authority, than to assign lower priority to immigration, budgets, tax reform, debt ceilings, displacing them on his agenda in order to seek trade negotiating authority.  And, there is no indication that Obama will displace any of them, even as there is more bipartisan support for trade than for anything else on his agenda.

            Obama has brought a new realism to American foreign policy, pulling out of wars that could not be won, declining colonial reflexes of nation-building, avoiding interventions in which getting in would be far easier than getting out.  Critics have accused him of shrinking the American footprint, giving up American influence in the world prematurely, shirking international responsibility.  Yet, the trade negotiations themselves convey a different message.

            Some forty countries are deeply engaged in trade negotiations with the United States, and only because the United States is involved are they at the negotiating table at all.  Most of them are relying on Obama’s word that he can bring these negotiations to successful conclusions.  The negotiations reflect a faith and confidence in the United States, probably unwarranted, but acknowledging the need for, and the reality of, global American leadership.

            There is both hope and risk in these conclusions.  Fully aware of the new realism Obama has brought to American global ambitions, partners in every corner of the globe still look to the United States for leadership and still want to share in the American market if not the American dream.  But the implied promise – negotiate with the United States because the word of the President is good – imperils American credibility.  It is good that there is faith and confidence in the United States, and it is not so good. 

            The political catalysts for the negotiations are also not so good.  Reinforcing a military alliance with Japan, at the very moment when Japan is exacerbating antagonisms with China, may do permanent damage to American interests in the region of the world where the President has declared priorities.  The combination of pressing forward with TPP and aligning with Japan in the East China Sea seems particularly unstable, especially because there is no apparent value in pressing forward with a trade agreement unlikely to be concluded. 

            There is more innocence and greater economic interest in TTIP, but it is inherently a more difficult negotiation notwithstanding the inclusion of non-market Vietnam in TPP. The TTIP parties acknowledge that, despite numerous meetings already, there has been very little progress, which may be to the good, because with less agreed upon, there will be less cause for disappointment.

            For at least three years there has been little else to talk about in the international trade community besides TPA, TPP, and TTIP.  The trade press has reported endlessly and breathlessly about each pronouncement, each meeting, each private communiqué.  Expectations have been high. But, as in the conflation of TPA and TPP, the trade situation has been a muddle, political battles masquerading as technical and technocratic disputes.

            It is past time for reality to set in:  the Camp-Baucus bill will never get to the floor of either house of Congress.  A replacement bill may be introduced, but it will not be debated nor voted upon before the November mid-term elections.  The lame duck Congress will not take it up.  By the end of 2014, TPP negotiations might have concluded, but without TPA final offers in TPP probably will not have been tabled.  TPP then will not be ready, and a new Congress will not likely give President Obama a signature foreign policy achievement during his last eighteen months in office. 

            Those relationships—between TPP and TPA — require only crossing “T”s. They must be crossed before the “I” in TTIP can be dotted.  For the Obama trade agenda, the “T”s will not be crossed, the “I” will not be dotted. Nor is the “I” likely to be dotted in Europe, which requires the concurrence of twenty-eight members.  The mark left in question will be a “C,” for American credibility.

贸易政治

          跨太平洋战略经济伙伴关系谈判(TPP)和“贸易促进权”(TPA),谁先谁后?按字母或是逻辑顺序,显然应当是TPA。从战略角度看,应当是TPP。但从政治层面看,两者都不是。同时,跨大西洋贸易和投资协定(TIPP)虽然是最重要的贸易、经济发展谈判,但也不可能最先提上议事日程。准确地说,TIPP无论是在议事日程上、谈判进程,还是政治重要性上都远远落后于TPP和TPA。

      TPA:布什总统似乎认为应当重新命名克林顿政府的所有政策,因此将“快轨程序”改名为“贸易促进权”。“快轨程序”首先于1994年失效。在克林顿第二个四年里,国会拒绝重新授予总统这一权利。布什总统上台后将国际贸易谈判作为执政重点之一,于是重新命名为“贸易促进权”,并以3票的微弱优势勉强获得国会通过。但“贸易促进权”的有效期很短,布什总统尚未卸任就已失效。

          美国宪法将国际商贸大权授予国会,但是庞大、众说纷纭的国会无法胜任国际谈判重任。历史上,美国总统由于达成的国际协议无法得到国会支持不止一次在国际舞台上大失颜面,最著名的莫过于威尔逊总统的国际联盟事件。

          美国的贸易伙伴已经意识到美国总统的签字只有得到国会支持才有含金量,而且应当首先获得国会支持。如果总统未与国会充分沟通就将协议送交国会审议,国会一定会修改这一协议。美国的国际伙伴知道这意味重新谈判,或是通过美国总统,或是通过一百位参议员(公约,treaties),乃至435位众议员(协议,agreement)。

          “快轨程序”(当今的TPA)授予总统谈判、签署国际贸易协议的大权,国会只能接受或否决协议,无法修改协议内容。快轨程序法案因此包括谈判指南:总统可以做什么、必须执行什么任务、什么可以接受、什么无法接受。快轨程序法案明确告诉总统国会工作重点以及谈判参照指标。

          没有TPA,总统既不了解国会重点,也没有国会支持。因此总统目标和重点可能偶然和国会重合,偶尔也可能受益于与国会频繁商讨,但总统没有国会支持,他的谈判似乎也同样冒风险。虽然TPA并不能保证国会全盘接受谈判协定,但是总统应当竭尽全力会知国会谈判内容,且不签署无法获得国会批准的协议。TPA可称得上是衡量谈判协议的模板。

          为使TPA具有实际意义,美国总统必需得到国会授权后再进行谈判,只有这样谈判对手和总统本人才知道谈判内容是否符合国会已经批准的协议框架。总统也可期望协议获得国会批准,因为国会已经充分了解谈判内容。

          虽然逻辑顺序要求TPA处于优先位置,奥巴马政府执政五年来似乎一直相信这并非最重要。这一想法也并非没有道理。奥巴马从布什总统手中接过三份在TPA失效后签署的贸易协定。国会拒绝依照快轨程序否决或通过这些协定,而是要求对这些协议的劳工法、环境法等章节进行修改。恰好这些谈判伙伴或是弱小(巴拿马和哥伦比亚),或是对美国有所求(韩国),因此最终都同意重新谈判修改这些章节。奥巴马然后将这些重新谈判的贸易协定递交国会并获得批准,虽然他并没有TPA授权。

          但是和弱小国家(巴拿马仅占美国贸易量的百分之一,哥伦比亚更微不足道)或是依附美国的战略盟友(韩国)签订的双边协定,并非多边谈判的先例。和一个贸易伙伴重新谈判并非难事,但是与多位贸易伙伴展开复杂的谈判并取得他们的信任却并非易事。

           全文请点击这里

                                                                                                     翻译:朱晶

The United States & China: Twenty-First Century Rivals Or Friends? 美利坚和大中国: 21世纪的对手还是伙伴?

Posted in Strategic & Economic Dialogue, Trade Disputes

The following article, The United States & China: Twenty-First Century Rivals Or Friends?, was published in the January 2014 edition of Corporate LiveWire Expert Guide International Trade 2014:

本文刊登于2014年一月出版的Corporate LiveWire Expert Guide International Trade 2014。中文翻译请下移鼠标。

The Obama Administration has referred to Sino-American relations as the most important bilateral international relationship of the twenty-first century.  Obama’s “pivot” to Asia, however, has created a central question: Is the pivot intended to cultivate and enhance relations between China and the United States, or does the United States seek to surround and contain expanding Chinese political, economic, and military power?

As economic leaders, the United States and China should welcome competition.  Ever more prosperous trade partners translate into mutual prosperity.  But, when the goal of economic competition is superiority in national security, competition can turn into an unproductive rivalry.  If the Obama pivot and Chinese reforms were to encourage cooperation and healthy competition, the global and Asian regional futures would be bright.  But if China were not to welcome the American competition and were the United States seeking hegemony, the pivot could become threatening, to China and to others in the region.rivalry 2

The politics of international trade between China and the United States, and in the Asian region, must be understood in the larger context of international relations and security.  We want to touch on four issues, all centered on trade, that may suggest something about the future.

Bilateralism & Green Technologies

China and the United States are the world’s leading energy consumers and the world’s leading producers of carbon gases.  Both governments recognise climate change and have pledged to reduce reliance on hydrocarbons and to cooperate in the development of green technologies and alternative energy resources.  Yet, China is exploiting common needs to flood world markets with green equipment, and the United States, through its trade remedies laws, is closing its market to Chinese solar and wind power products.  Both countries have complained about each other at the WTO.  There is no discernible cooperation.

When the European Union reached a settlement with China over solar cells, the Washington Post suggested that the United States should do the same.  Solar cells reduce the carbon footprint and installation and maintenance create many more jobs than manufacture.  The Europeans reasoned that, if China wanted to flood the international market with solar cells, it would be good for consumers and for arresting climate change.  More solar cells would also create more jobs.

Unfortunately, U.S. trade law has no public interest clause and consequently no means to replicate the European settlement.  U.S. law enables a small industry to undo a large one because any industry can block imports.  And China retaliated, blocking American polysilicon used to manufacture solar cells in China.

Rivalry 3The solar cell problem is repeating in wind towers, where U.S. manufacturers are blocking imports of Chinese wind towers needed for the development of wind power in coastal regions by the U.S. manufacturers of wind turbines.  The turbines are far more valuable and sophisticated than the steel towers.  The smaller and less valuable industry is able to exploit the trade law to the detriment of foreign suppliers, consumers, other domestic industries, and global climate.  The trade law thus defeats Chinese-American cooperation.

The Trans-Pacific Partnership

The United States is committed to the Trans-Pacific Partnership, which was designed originally to exclude China.  China, however, is a far more important trading partner with the United States than the countries that started the TPP negotiations in response to growing Chinese regional power.  Moreover, even were the TPP negotiations to conclude successfully, the United States Congress is unlikely to ratify it.

TPP failure would erode U.S. credibility in the Pacific while still undermining Sino-U.S. relations.  There is an alternative.  China, Japan, and South Korea are negotiating a trilateral free trade agreement that could help calm security and other disputes among the three leading economic powers in Asia.  The United States needs to lower expectations about TPP, and encourage the trilateral deal that would reassure China of the U.S. commitment to its well-being and improve relations throughout the region.

Trade & Non-Market Economies

The Special Safeguard (Section 421 of the U.S. trade law) against China expired in December 2013.  Treatment of China as a non-market economy must conclude, according to China’s WTO Accession Protocol, in December 2016.  However, China’s economy is still dominated by state-owned enterprises, 12 years past WTO accession, and organs of the central government continue to direct much of the economy.  Moreover, Chinese exports dominate trade remedy proceedings everywhere.

The Special Safeguard against Chinese goods was used successfully only once in twelve years (over automobile tires).  When the use of NME methodologies expires, enforcement of fair trade with China will be more difficult.  China already has challenged in the WTO the U.S. application of countervailing duties because the U.S. is treating China, for its own convenience, as both a market and non-market economy.

Isolating or containing China will not solve the distortions of a state-run economy.  As with Permanent Normal Trade Relations and then WTO accession, the United States must embrace China within the standards and norms of multilateral trade.

Military & Security Issues

There has been continuous hostility in the United States Congress toward China, mostly over trade.  Complaints center on alleged off-shoring of jobs (but there are no accompanying statistics) and currency valuations (because the Chinese Yuan is linked to the dollar).  Yet, the U.S.-China Business Council estimates that exports to China in 2012 created more than a half-million U.S. jobs, with around 122,000 added since 2008.  Chinese currency appreciated around 24 percent.    The U.S. dollar was linked to other currencies and did not float until August 1971.

Americans have been seeing China as a global security and potential military challenge.  The United States has appeared to side with Japan in the dispute over islets in the East  and South China Seas.  References to growing Chinese military power are frequent, and the United States has singled out China for continued export restrictions on items being moved off the U.S.  Munitions List.  The Chinese have complained, loud and long, about these restrictions (but without specifying what they may want and cannot buy).  Now China is being singled out by name for exclusion from the most significant reform of U.S.  export controls in decades, making it more difficult for Chinese to see themselves in a friendly relationship with the United States.

Conclusion

There is only one military superpower in the world today.  American military expenditure exceeds the expenditures of all other countries in the world combined and is more than four times the Chinese defense budget.  The United States can encourage a rivalry – reminding everyone of its alliance with Japan in response to growing Chinese military power, restricting trade with China as with no other non-embargoed country, encouraging trade formations that exclude China.  Or, the United States can intensify its dialogue with China.  It can encourage an even-handed settlement of regional disputes and the creation of inclusive regional institutions.  It can cooperate genuinely in reducing hydrocarbons and controlling climate change.

China can adopt a more accommodating posture, accelerating the reform of its economy away from state-owned enterprises, floating its currency, relaxing its military posturing.  China and the United States both know that trade and security are related.  Rather than use one to lever the other, they should be enhanced for both countries together.

奥巴马政府声称美中关系已成为21世纪最重要的双边关系。然而,总统的“侧向”亚洲政策却引发一重要问题:“侧向”亚洲旨在促进中美关系;还是美国试图包围中国,控制后者政治、经济和军事实力发展?

作为经济领袖,美中两国都应当欢迎竞争。更强大的贸易伙伴意味着共同繁荣。然而,当经济竞争成为国家安全的首要目标时,竞争可能变成阻碍发展的对抗。如果奥巴马总统的“侧向”亚洲政策和中国改革的确是为了增进合作、促进健康竞争,世界和亚洲的未来将更加光明。但如果中国不欢迎美国竞争、或是美国寻求霸权,则“侧向”亚洲政策将威胁中国和其他亚洲国家发展。

应当从国际关系和安全大环境角度审视中美贸易和亚洲贸易。本文将从四大贸易政策分析这些关系,期望阐明未来发展趋势。

双边主义和绿色科技

美中两国是世界两大能源消费国和世界领先的碳化物排放国。两国政府都意识到气候变化的威胁,并承诺将减低对碳化物的依赖、增进在绿色科技和可替代能源领域的发展合作。然而,中国积极利用共同需求,本国生产的绿色产品泛滥世界市场。另一方面,美国利用贸易救济法将中国太阳能及风力发电产品关闭在美国市场外。两国之间没有合作。

当中欧就太阳能产品贸易纠纷达成和解时,《华盛顿邮报》建议美国应当效仿。使用太阳能板能减少碳足迹,安装和维护工作创造的工作机会远远高于生产太阳能板创造的就业机会。欧洲方面认为,如果中国产太阳能板占据世界市场,这将有益于消费者,还可控制气候变化、创造更多就业机会。

令人遗憾的是,美国贸易法中没有公众利益这一条款,因此无法效仿欧盟模式。美国贸易法可帮助小产业毁灭大产业,因为任何产业都可阻碍进口。于是中国奋起还击,禁止用于太阳能板生产、原产美国的多晶硅销往中国。

太阳能板的故事在风塔案件中重演,美国生产商阻挠中国风塔销往美国,直接冲击在美东西两岸发展风能的美国风力发电机组生产商们。风力发电机组比风塔更复杂、更昂贵。但是规模较小、产值更小的行业却可利用贸易法损害国外生产企业、消费者以及其他国内产业,还加剧环境破坏。贸易法因此战败了中美合作。

跨太平洋战略经济伙伴关系

美国致力于跨太平洋战略经济伙伴关系谈判(TPP),这一谈判的初衷是将中国排除在外。然而和其他参与谈判的亚洲国家相比,中国是美国更为重要的贸易伙伴。而且,即使谈判顺利完成,美国国会也不会批准这一协定。

TPP失败将损害美国在太平洋地区的威信,同时破坏美中关系。但可通过其他途径避免这一现象。中日韩三国正在进行自由贸易协定谈判,这一谈判可帮助减少东北亚三国间安全以及其他摩擦。美国应当降低对TPP的期待,鼓励三国进行自由贸易协定谈判,这可让中国相信美国将坚定地支持中国发展并促进区域关系发展。

贸易以及非市场经济体

针对中国的特殊保障调查(美国贸易法第421款)已于2013年12月失效。同时根据中国加入世界贸易组织协议规定,中国将于2016年12月结束非市场经济地位。但是在加入世贸组织十二年后,国有企业仍占据中国经济主体,中央政府机构仍支配经济发展。此外,中国出口品在世界各地都面临众多贸易救济行动。

在十二年里,针对中国的特殊保障调查只成功运用了一次,即汽车轮胎案。当非市场经济贸易救济方法过期后,针对中国的公平贸易执法将更加困难。中国已经在世界贸易组织挑战美国对中国产品征收反补贴税,包括使用市场经济和非市场经济体计算方法。

孤立或是遏制中国不会根除政府主导经济带来的弊端。根据美中两国永久正常贸易关系以及中国入世协定规定,美国应当欢迎中国加入多边贸易体系。

军事以及安全问题

美国国会一直以来对中国非常敌视,尤其在贸易领域。指责包括美国就业机会流失海外(虽然并没有确切数据)、操纵汇率(人民币汇率和美元挂钩)等等。然而美中贸易全国委员会估计,对中国出口仅在2012年一年就在美国本土创造了超过50万个就业机会,人民币升值幅度约为百分之二十四。而在1971年8月之前,美元也是与其他货币挂钩,并没有自由浮动。

美国长期以来视中国为全球安全和潜在军事威胁。美国在东南海领土争端中表现得偏袒日本。中国军事力量日益增长的威胁论此起彼伏,同时美国仍然禁止向中国出口已经从军需品禁运名单上除名的产品。中国长期以来大声抱怨美方的这些限制,但却未能具体指明他们希望购买哪些禁运品。如今当美国经历几十年来最重大的出口控制改革之际,中国却成为唯一被另眼相待的国家,这使中国很难相信美中友谊。

总结

当今世界只有一个超级军事大国。美国军费开支超过世界其他国家军费开支总合,而且是中国国防预算的四倍。面对中国日益增长的军事实力,不断提醒大众美日联盟则可能鼓励对抗力量在中国进一步壮大,单单限制对华贸易可能鼓励排华贸易联盟的产生。或许,美国可加强与中国对话。美国可以公平对待区域争端、创建包容性区域组织。也可以和中国展开真诚合作,减少碳化物排放、控制气候变化。

中国也可以以合作姿态加速经济改革、汇率改革,弱化军事强国形象。中美都清楚地意识到两国贸易和安全紧密相连。与其相互钳制,不如携手促进两国联系。

翻译:朱晶

CFIUS Annual Report Shows Increased Focus on Chinese Investment

Posted in CFIUS and Investment

The Committee on Foreign Investment in the United States (“CFIUS”), the inter-agency group that conducts national security reviews of foreign acquisitions of U.S. businesses, recently issued its Annual Report to Congress for Calendar Year 2012.  That reports show that China surpassed the United Kingdom in 2012 as the source for the largest number of foreign investments undergoing national security reviews.

Out of the 114 proposed foreign acquisitions of U.S. businesses that CFIUS reviewed in 2012, 39 involved Chinese investors.  Perhaps not coincidentally, 2012 saw substantially more notices withdrawn than in previous years.  It also saw only the second time the President has ordered the divestment of a foreign acquisition since the Exon-Florio amendment granted the President that authority in 1988.

CFIUS cleared 67 transactions during the initial 30-day review phase and an additional 24 after a full 45-day investigation.  The parties to 12 of the reviews withdrew their notifications, either to allow more time for CFIUS’s consideration, or to account for changes in the transaction.  They subsequently refiled.

The parties to ten transactions withdrew their notifications before the CFIUS process was completed.  They never refiled.  Some of them withdrew the notifications because the deals fell apart for normal commercial reasons, but some were abandoned, either because they understood the transaction would not be cleared by CFIUS, or the parties found the conditions required to obtain CFIUS clearance would have made the transactions commercially untenable.

As reported previously in this blog in July 2013 and October 2013, President Obama ordered the divestment of Ralls Corporation’s acquisition of four wind farm sites in Oregon.  The Report states that the reasons were that Ralls is owned by Chinese nationals, and the “wind farm sites are all within or in the vicinity of restricted air space at Naval Weapons Systems Training Facility Boardman in Oregon.”

Not since 2008 have so many transactions been withdrawn from CFIUS review.  Twenty-three transactions were withdrawn in 2008, 22 in 2012.  However, in 2008 the great majority (18) were withdrawn in the initial review stage, largely because the global economic collapse made the transactions financially too difficult. .  By contrast, 20 of the transactions withdrawn in 2012 occurred after CFIUS decided to initiate a full 45-day investigation, at which point it is more likely the notification was withdrawn due to problems arising in the CFIUS process, rather than due to economic conditions.

The Annual Report does not identify the nationality of the foreign investor in the withdrawn transactions, but it probably is not coincidental that 2012 saw a dramatic increase in both the number of transactions withdrawn (from 6 in 2011 to 22 in 2012) and the number of transactions involving Chinese investors (from 10 in 2011 to 23 in 2012). The CFIUS process is not necessarily hostile to Chinese investors, but it is no secret that Chinese investment receives higher scrutiny than investments from long time U.S. allies who are also major investors, such as the United Kingdom, Canada, France and Japan.

Virtually all projects with CFIUS problems now seem to involve either cyber security or “proximity” (“persistent co-location,” in the Department of Defense’s vernacular).  It has been reported that one of the exacerbating concerns is the presence of government contractors in industrial parks, making the “proximity” issue more widespread than once thought.  The Department of Defense, it is being said, is particularly sensitive to Chinese projects in the vicinity of its contractors.

CFIUS notes in the report that CFIUS agencies entered into eight legally binding mitigation agreements in 2012 to resolve national security concerns.  The Annual Report provides the following examples of mitigation measures that were adopted in those agreements:

  • Ensuring that only authorized persons have access to certain technology and information.
  • Establishing a Corporate Security Committee and other mechanisms to ensure compliance with all required actions, including the appointment of a USG-approved security officer or member of the board of directors and requirements for security policies, annual reports, and independent audits.
  • Establishing guidelines and terms for handling existing or future USG contracts, USG customer information and other sensitive information.
  • Ensuring only U.S. citizens handle certain products and services, and ensuring that certain activities and products are located only in the United States.
  • Notifying security officers or relevant USG parties in advance of foreign national visits to the U.S. business for approval.
  • Notifying relevant USG parties of any awareness of any vulnerability or security incidents.
  • Termination of specific activities of the U.S. business.

Chinese and other foreign persons who are considering acquisitions in U.S. businesses that may present national security concerns should think about whether these types of mitigation measures might resolve those national security concerns while still preserving the economic value of the transaction.  It is better to think through possible mitigation measures in advance, rather than try to develop them during the short timeframes of a CFIUS review or investigation.

Finally, CFIUS identified in the Annual Report a number of perceived adverse effects on national security of foreign control of U.S. businesses in the transactions that it reviewed during 2012.  Some of the perceived threats based on the U.S. business being acquired that are less than obvious include:

  • Provide products or services that could expose national security vulnerabilities, including potential cyber security concerns, or create vulnerability to sabotage or espionage. This includes consideration of whether the covered transaction will increase the risk of exploitation of the particular U.S. business’s position in the supply chain.

  • Have operations, or produce or supply products or services, the security of which may have implications for U.S. national security, such as businesses that involve infrastructure that may constitute critical infrastructure; businesses that involve various aspects of energy production, including extraction, generation, transmission, and distribution; businesses that affect the national transportation system; and businesses that could significantly and directly affect the U.S. financial system.

  • Are in proximity to certain types of USG facilities.

The Report also identified the following perceived threats when the foreign persons who would be the acquirer:

  • Are controlled by a foreign government.

  • Are from a country with a record on nonproliferation and other national security-related matters that raises concerns.

  • Have historical records of taking or intentions to take actions that could impair U.S. national security.

These concerns would appear to be aimed primarily at Chinese investment.  All but 29 of the covered transactions that CFIUS reviewed in 2012 were from countries that are long-term U.S. allies.  Chinese persons accounted for 23 of those 29 transactions.

The United States remains open to foreign investment, including investment from China.  Most acquisitions of U.S. businesses continue to be approved.  But, when Chinese companies, especially, seek to acquire existing U.S. businesses, they should notify the proposed transaction to CFIUS, and plan thoroughly for political and public relations processes favorably promoting the project. Chinese projects may have raised more questions than projects from other countries because of their substance, but they may also raise more questions because they are Chinese.  The obstacles can be overcome, and the investments likely continue to be profitable and worthwhile, but they may take longer, requiring more planning, and more sophisticated execution.


 

Healing More Important Than Dealing in The Pacific

Posted in Trade Negotiations

BidenVice President Joe Bidens visit to South Korea, Japan, and China during the first week of December was to have been about bilateral issues with each country, and the Trans-Pacific Partnership (TPP) with South Korea and Japan.  The agenda, however, was hijacked by an urgent national security concern as Japan and China tested each others perceptions of sovereignty over contested islets and air space, and the United States reasserted its defense alliance with Japan by sending B-52 bombers into the area over which China unilaterally announced restrictions.  Nonetheless, Biden did not abandon the original trade agenda in his meetings.

While Japan and China are contesting sovereignty over islets, so are China and South Korea over protruding rocks.  Moreover, South Koreas President Park has refused to proceed with a planned summit with Japans Prime Minister Abe because of Japans apparent refusal to address sufficiently, as Koreans see it, slave labor and comfort women during the Japanese Occupation and World War II. 

There is growing alarm in the region about possible military escalation, born of historically-based mutual suspicion and hostility.  The region lacks effective foundational institutions bringing Japan, South Korea, and China to a common negotiating table.  They have not really settled World War II, and each of them carries grievances toward the others.  All view history their own way. 

The United States remains a critical broker preserving peace in the region, a role Biden was quick to invoke on his tours first stop in Japan. But the United States also shares a historical responsibility for the problems, which stretch back to World War II and even before.  Whereas in Europe the Marshall Plan rescued and revived economies throughout Western Europe while American Occupation helped Germany reconcile with its foes and restore its place in the family of nations, in Asia the United States cultivated Japan as a bulwark against Soviet and Chinese Communism, did little to integrate the region and nothing to encourage Japan to reconcile with the countries it invaded and the peoples it conquered.  Today, Japan is regarded throughout Asia with doubt and suspicion, creating an excuse for China to flex new muscles and South Korea to complain of inadequate apology and reparations.

Until Japans history, as seen especially by China and Korea, is fully acknowledged by Japan, Japans conflicts with China and South Korea will persist and grow more dangerous.  Enhanced international trade is not a panacea, but it could provide the foundational institutions that could transition Japan into an accepted leadership role commensurate with its economic importance.  Regrettably, the TPP is not likely to be the needed institution, and the United States will not be a successful broker until it fully appreciates the Chinese and Korean grievances.

TPP And China

Economic and trade relations often defer or overcome national hostilities.  South Korea, Japan, and China are mindful of the importance of trade.  They are heavily invested in each others economies as most FDI remains regional, and they are negotiating a trilateral free trade agreement, albeit fitfully, notwithstanding their security disputes. 

The TPP, the central trade and economic item on Bidens agenda, does not relieve any of the tensions among the three key countries in the region.  To the contrary, the TPP was conceived originally to exclude China, and neither South Korea nor Japan was among its founders or early champions.  South Korea has not yet joined the negotiations formally, even as the United States Trade Representative has declared the talks almost completed, and the United States is still pressuring Japan to satisfy the United States on old issues such as automobiles and agriculture, which Prime Minister Abe seems to welcome for domestic political reasons. 

The small Asian countries that drew the United States into the TPP negotiations were reacting to the growth of Chinese power in the region.  Their instincts were to combine their modest capabilities with the United States and effectively surround China, much the way George Kennan imagined containing the Soviet Union.  It was not difficult to sound principled in excluding China as a non-market economy that could not satisfy the elevated standards of a twenty-first century trade agreement, but no one could miss the political overtones. 

China responded cautiously, understanding the Cold War overtones but not wanting to appear as an opponent to trade liberalization.  The United States, recognizing the potential contradiction between its support for Chinas rapid development as an economic power and its exclusion from the TPP, declared that a China willing to embrace the new disciplines of a new agreement would be welcome.

China signaled an interest in the TPP during the Strategic and Economic Dialogue with the United States in July, and at the end of November, just as the United States repeated its objective to complete the multilateral deal by the end of 2013, China decided to call the apparent American bluff, indicating it wants to join the talks.  With Japan admitted to the talks only in July and South Korea not yet formally in the multilateral negotiations, the United States would not seem to be in a position to deny China an opportunity to join.  Moreover, as China is South Koreas leading export market, South Korea probably would prefer to join only if China were included.

The United States is finessing the dilemma by postponing South Korea’s participation until after the conclusion of an agreement with the other countries.  However, the Korean postponement has been based on an expected conclusion to the talks by the end of 2013, which will not happen.  The longer the talks continue into 2014, the more the United States will have to confront the exclusion of China.

The late and uncertain addition to the TPP of the three most important economic forces in Asia can only push back the TPP calendar. The further into 2014 the talks go, the closer looms mid-term congressional elections in the United States.  As the elections approach, the legislative calendar will fade away. Meanwhile, the very existence of the TPP dilutes any improvement of relations among South Korea, Japan, and China because the larger framework does not encourage them to resolve their more particular differences.

Odds Long And Unlikely

The odds for the TPP ever to come to pass remain long and the risks for the United States in promoting high expectations for the TPP very substantial.  The United States seems to have convinced most of the countries in Asia that once they agree to terms, the deal will be done.  Therefore, the United States is pursuing a gold standard for trade agreements, in which American preferences and values over all international commerce, including especially intellectual property, pharmaceutical products, agriculture, and virtually every other disputed sector, would be codified in a trading bloc representing more than half the global economy as measured by gross domestic production (but only if China were included). 

The United States is asking its negotiating partners to make dramatic compromises they have resisted in the past, whether in bilateral trade with the United States or in the multilateral forums of Uruguay and Doha.  In exchange for these concessions, the United States is promising economic renewal and a new prosperity for Asia. 

The United States never mentions any doubt about enacting the TPP.  Unfortunately, the President of the United States cannot bring about the TPP without the cooperation and consent of the Congress of the United States.  There, the necessary support is improbable.  One hundred fifty-one congressmen of the Presidents own party have signed a declaration complaining about the secrecy of the TPP negotiations, while a bloc of Republican congressmen oppose virtually any legislation proposed and promoted by President Obama.  They are determined to deny Obama signature achievements, which is what a successfully concluded and enacted TPP would be. 

The TPP And The Trilateral Agreement

Optically, it is easier for the United States to be in pursuit of a broad regional agreement than to promote a trilateral agreement in which it would not be a member.  It would seem more in the U.S. interest to pursue an agreement that would enhance U.S. trade directly, rather than promote an agreement that could improve trade for competitors.  Yet, the regional tensions that are generating fear of military accident or confrontation may be more important than both trade deals, and management of the potential trade agreements could help bring calm to the region.

The United States still looks to its alliance with Japan and hopes that Japan will assume regional leadership.  Unfortunately, the promise of regional leadership is interpreted by some in Japan, including especially the current Japanese Government, as a need to break free from constitutional constraints that assign Japan a pacifist role in world affairs.  Japanese nationalist sentiment seems wedded to a certain militarism that translates into confrontation, whether with China over islets or Korea over history. 

Regional leadership for Japan commensurate with its relative economic prosperity and heft will not be accomplished through reassertions of conventional power because leadership requires trust.  The American goal of Japanese regional leadership requires, above all, better Japanese relations with Korea and China.  A trilateral free trade agreement can build a foundation for a new friendship which an American-led TPP cannot.

Relentless regional pursuit of the TPP is also dangerous for the United States because failure likely would erode American credibility and stature.  Confidence in the United States could be shattered by a loss of confidence through an American failure to deliver on the promise. The United States, by contrast, would not be blamed were the trilateral agreement to founder, but could be cheered were it to help bring it about.

Strategically, achievement of a trilateral free trade agreement among China, South Korea, and Japan would be of greater value to the United States than a negotiated TPP that Congress declines to approve.  It would focus Japanese energy on reconciliation with its neighbors, a process indispensable to a trilateral agreement.  It would reassure China that the United States is not seeking its isolation, something the United States could never accomplish in Asia anyway.  And it would strengthen the Asia region as a trading and economic partner of the United States.

A trilateral agreement will be very hard to make happen.  The three countries involved have talked about it for a decade, and each has blame for the others for the continuing failure to make serious progress.  The concerted efforts around the TPP, however, do not help.  The American energy and leadership devoted to the TPP could matter if redirected, and would have a greater long-term benefit, for the United States and for the world.  China integrated into the region, Japan reconciled with its neighbors, South Korea entrenched in a process of reconciliation and extending benefits derived from its free trade agreement with the United States:  such an agreement might not achieve a free trade gold standard, but it could augur a political transformation for peace.

Links And Priorities

The military tensions in Asia are rooted historically.  When the United States pushes back against new Chinese declarations about air space, it is doing the bidding of Japanese nationalists who want dealings with China to be confrontational.  Yet, the United States could not maintain its own regional peace-keeping role were it to accept the Chinese steps passively.  Bidens diplomacy recognizes the dilemma, but it would be far more successful, and more in the American interest, were it also to recognize the longer and deeper history.  It then could comprehend, too, that the confrontation between Japan and China is not wholly distinguishable from the confrontation between Japan and Korea, nor between Korea and China. 

The United States owes it to Japan, and to the region, to retreat from Cold War imagery and philosophies that acquit Japan of its past and protect present-day Japanese militarists.  The United States owes it to China to be reliably and consistently inclusive, giving no refuge to Chinese expansionists who appreciate little more than Japanese amnesia that licenses their own aggression.  And the United States owes it to Korea to recognize Koreas colonized past.  The United States could help broker peace in Asia by sacrificing its own short-term aspiration for an unlikely multilateral trade agreement and committing itself to the regions internal needs, just as it did in Europe after World War II.  The moment of highest tension could not be a better time to start. 

U.S. Court Rejects Challenge To CFIUS National Security Review 美国法院驳回三一集团国家安全审查之诉

Posted in CFIUS and Investment

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This blog previously reported in July 2013 on a lawsuit that Ralls Corporation brought against the President of the United States and the Committee on Foreign Investment in the United States challenging the President’s order for Ralls to divest its interest in four wind farm projects in Oregon. The United States District Court for the District of Columbia,on February 26, 2013, dismissed most of Ralls’ claims on the grounds that the merits of the President’s decision were not subject to judicial review, but allowed to proceed Ralls’s claim that the divestiture order was an unconstitutional deprivation of property without due process. On October 10, 2013, U.S. District Judge Amy Berman Jackson issued an opinion dismissing the constitutional claim.

Ralls alleged that the President’s Order violated the due process clause of the Fifth Amendment to the United States Constitution because it deprived Ralls of property without giving it an adequate opportunity to be heard or providing the reasons behind the President’s decision. In effect, Ralls claimed it had a Constitutional right to a detailed explanation of why the President ordered divestiture. The U.S. Government filed a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Ralls’s remaining claim for failure to state a plausible claim for relief. Both sides submitted briefs and participated in oral argument before the Court on the motion to dismiss.

Judge Jackson dismissed the case based on her findings that Ralls failed to allege that: (1) it had a protected property interest; and (2) the government did not afford it sufficient procedure. The Court found that Ralls did not have a protected property interest because it acquired the wind farm projects subject to the known risk of a Presidential veto. Ralls also waived the opportunity provided in the Foreign Investment National Security Act to obtain a determination from CFIUS before the acquisition.

Judge Jackson found that Ralls received sufficient process because it had notice and an opportunity for a hearing appropriate to the nature of the case. CFIUS informed Ralls in June of 2012 that if it were not to file the voluntary notice, the Department of Defense would file an agency notice that would trigger committee review.

Ralls then filed a “voluntary” notice of the transaction with CFIUS in which it set forth its reasons why the acquisition did not raise national security concerns. Ralls also attended a meeting with CFIUS and made a presentation on July 11, 2012.

CFIUS informed Ralls that, if it were not to divest voluntarily, CFIUS would recommend that the President order divestiture. Judge Jackson, therefore, determined that Ralls’s constitutional claim was based solely on its assertion that it was entitled to know the President’s reasons for prohibiting the transaction and to have an opportunity to rebut those reasons specifically.

Judge Jackson disposed of Ralls’ constitutional claim as follows:

In this case, involving the application of this particular statutory scheme, the President has a valid interest, grounded in the national security of the United States, to withhold the particular evidence that gave rise to his concern about a national security threat from the entity that he believes might pose the threat. And that conclusion is bolstered by the fact that Congress specified that the President’s determination would not be subject to review.

The key take-away from this case is that foreign companies, particularly Chinese, seeking to acquire U.S. businesses, should take advantage of the opportunity to obtain a CFIUS determination in advance of the acquisition. We have recommended in prior articles on this blog published in December 2009, January 2010 and February 2011 that companies take advantage of this opportunity. Ralls did not do so, and was forced to divest. Detailed information that can help companies decide whether to file a CFIUS notification and on the process can be found in Chapter 14 of MERGERS & ACQUISITIONS IN THE UNITED STATES A Practical Guide for Non-U.S. Buyers.

Ralls undoubtedly lost money in this transaction, not only because of its investment in the deal, but because it had to remove wind towers whose value surely was diminished when they no longer could be installed in a nearby location. The land, which a domestic company might have been able to use for a wind farm, became limited in its potential use and therefore its value. Yet, Ralls made no claim about just compensation under the Fifth Amendment to the Constitution, and so the legal case was concluded on a procedural dispute where Ralls was unable to hold the President accountable to explain a national security decision.

Other recent Chinese acquisitions have been able to go forward with careful attention in advance to the CFIUS process. For example, this blog also reported in July 2013 about congressional and other opposition to the proposed Chinese acquisition of Smithfield Foods. The parties to that transaction made a voluntary notification to CFIUS before the transaction was completed and received CFIUS’s blessing. Even Chinese acquisitions in the sensitive energy sector have received CFIUS approval. Sinopec received CFIUS approval for its $1 billion purchase of a 50 percent share of Chesapeake Energy Corp.’s natural gas shale operations in Oklahoma. Similarly, when CNOOC Ltd. sought to acquire Nexen Inc., a Canadian company with substantial U.S. assets, it was able to receive CFIUS approval by structuring the deal to alleviate concerns that some of those assets were in areas of the Gulf of Mexico that were close to sensitive military installations and subsea telecommunications cables.

Had Ralls taken the same approach as Sinopec and CNOOC, a voluntary notification in advance of its transaction, it might have been able to work with CFIUS to structure the deal in such a way as to mitigate the national security concerns short of a full divestment. We may never know, but at a minimum, by failing to make a voluntary disclosure in advance of the transaction, Ralls found itself in the middle of an expensive failure that might have been avoided.

Ralls appealed Judge Jackson’s decision on October 16, 2013 by filing a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit. The appellate court proceedings are likely to last well into next year. Should Ralls be successful on any of the issues on which it appeals, the case would likely be returned to Judge Jackson for further proceedings in accordance with the appellate court’s decision. Should the appellate court uphold Judge Jackson on all issues, then Ralls’s challenge to the President’s divestment order would end then. Ralls could petition the U.S. Supreme Court to issue a Writ of Certiorari to review the appellate court’s decision, but the Supreme Court would not have to take the case. The Court only takes only a very small percentage of the cases brought to it each year.

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TPP, TTIP, And Congress: The Elephant In The Room 国会与贸易谈判

Posted in Trade Negotiations

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TRADE TALKS

The Washington trade policy community is buzzing over the two largest international trade negotiations since the effective collapse of the Doha multilateral trade round. The buzz may be even louder in foreign capitals. The Obama Administration, in mid-July, was still promising to complete the Trans Pacific Partnership (“TPP”) negotiations by year-end, while starting up the Trans-Atlantic Trade and Investment Partnership (“TTIP”) negotiations with similar speedy objectives. For both deals there is engagement and enthusiasm. Inside U.S. Trade, the trade community’s weekly Bible, devoted over thirty pages, all but one article in a recent edition, to these negotiations.

Conspicuously, China is not part of these negotiations. To the contrary, TPP negotiations began as the inspiration of smaller Asian countries (beginning with Singapore, New Zealand, and Brunei) and Chile, all worried about China. They induced the United States in 2008 to join their negotiations, with the net around China then beginning to expand to Australia, Peru, Vietnam and eventually Japan, Canada, Mexico and probably South Korea. Seven more countries in the last twelve months (including Taiwan) have asked to join.

The Doha Round cratered over agriculture, especially Chinese and Indian complaints about American and European subsidies. It was to have been the “development round” of world trade talks. One critical feature of the congressional debate about the U.S. Farm Bill in 2013 was that it did not involve serious reductions in subsidies, and as long as the United States will not reduce its agricultural subsidies, neither will the European Union (EU”). Without reductions in both, there can be no global trade negotiations.

The TPP was to be, by contrast, a “high standard” regional agreement with an emphasis on twenty-first century concerns such as intellectual property and financial services. It was fashioned, therefore, almost expressly to China’s exclusion.

The TPP acquired the look and feel of containment, especially when discussion over Japan’s entry encouraged reinforcement of Japan as a U.S. ally in the region and a bulwark against China. Acceleration of the talks coincided with President Obama’s “pivot” to Asia and intensifying American complaints about Chinese cyber-spying, trade actions against critical Chinese green technologies, and adversarial reviews of Chinese direct investments into the United States. Rhetorically, the TPP door was open to eventual Chinese membership, but politically it was locking shut in a cordoning fence.

For a while, China articulated a concern that the TPP was exclusionary and part of a growing American hostility, but as the number of participants grew and the subject matter became more complex, China appeared to worry more about its own slowing economic growth and its more regional talks with South Korea and Japan. China might also have noticed that, as more interests were implicated by more complicated negotiations, the probability of conclusion receded.

As the TPP appeared to advance, absorbing enough countries to represent some 40 percent of world trade (the United States and Japan, Canada and Mexico, being the crucial participants), anxiety grew in Europe. The American “pivot” initially appeared strategic and military; the TPP made it appear economic as well. Canada and the EU already were negotiating a free trade agreement, but the EU had longed for a revitalization of trans-Atlantic relations with the United States, especially as persistent Eurozone troubles threatened economic recovery and the EU itself. Balancing the American pivot and harnessing the American economic recovery for European benefit became critical, while the Obama Administration seemed to see talks with Europe as potential proof that the pivot toward Asia was not “at the expense of” Europe, and could be another vehicle for “high standards” that would appeal to the business community. As the United States entered what it insisted would be the final year of TPP negotiations, it launched on the other side of the globe TTIP with the EU. For the United States, restoration as the world’s lone superpower was manifest in playing the indispensable partner looking both east and west.

Late entries of Canada, Mexico, and Japan could complicate TPP ratification, but generally the negotiating countries can deliver on an agreement their leaders may sign. That proposition, however, is much less true for the EU. France already has signaled discomfort (especially over the National Security Agency’s PRISM project) and it is unlikely that the outside negotiation alone can supply the glue required to hold the Eurozone together. Still, assuming agreements can be reached and all foreign partners can deliver, there is an elephant roaming in these negotiating rooms.

THE ELEPHANT

The Congress of the United States will have to approve any trade deal, whether through a majority in both Houses (an “agreement”) or through two-thirds of the United States Senate (a “treaty”). And both Houses will have to write and pass implementing legislation wherever the agreements (or treaties) require changes in U.S. law.

The American presidential system is unlike political systems in almost every other country. Prime Ministers preside over the majority party of legislative bodies. They derive their authority from leading the majority party. When they commit their countries internationally, they almost always can guarantee the approval of their legislatures. American Presidents, however, have no such authority. It is not unusual for them to lead political parties that are in the minority in Congress, in one or both Houses. After they negotiate and sign an international agreement with foreign leaders, they have to negotiate with domestic legislative leaders who can oblige them to change the deal, going back on their word with the Prime Ministers and Presidents of foreign countries.

Remarkably, one of the momentous events of the twentieth century seems forgotten now by world leaders. President Woodrow Wilson, following protracted and difficult negotiations, settled the “war to end all wars” with a League of Nations. The United States Senate, in part miffed by its exclusion from Wilson’s delegation in Paris negotiating the Treaty of Versailles, rejected it. When the peace began to disintegrate, the United States was not a member of the League of Nations meant to preserve it.

The President and Congress, mutually recognizing that the United States was unable to negotiate trade agreements in good faith because negotiating partners could not rely on the President’s signature, created “fast track authority” in 1974. The President promised to engage Congress throughout trade negotiations; Congress pledged a vote, up or down without amendment, on trade agreements and treaties. (President George W. Bush renamed “fast track” “trade promotion authority” (“TPA”).) Fast track, or TPA, promised nothing as to implementing legislation, but trading partners were assured that the text of the agreement itself would not be changed by Congress after the President had signed it.

The more Presidents wanted legacies associated with trade liberalization and international agreements, the more contentious approval of TPA became. Members of Congress quickly recognized that when Presidents want something badly enough, they are prepared to negotiate and to give up things in exchange. Instead of an expression of American foreign policy and government solidarity, TPA approval became an occasion for domestic negotiation and horse-trading, and the more the President might want it, the more Members of Congress reckoned they could get from him. Ultimately, Members of Congress saw they could withhold TPA altogether as a means for denying a President signature accomplishments in foreign affairs.

When Congress declined to renew fast track authority for President Clinton, part of the punitive environment enveloped in his second term impeachment, the trade community wondered what Charlene Barshefsky would do as the new Trade Representative. Cleverly, she focused on amendments to established multilateral agreements (most significantly, China’s accession to the World Trade Organization), and on narrow bilateral proposals (such as adding Chile to NAFTA, which failed). Large-scale new agreements effectively were beyond her grasp.

President Bush wanted TPA badly and pursued it vigorously in the first months of his Administration. He got it on a 215-212 vote on a House bill detailing negotiating requirements. In his second term, amidst growing criticism of a foreign policy that had the United States tied down in two expanding land wars (Afghanistan and Iraq), Congress declined to renew TPA and his international trade efforts withered without it.

President Obama did not assign international trade the priority President Bush had accorded it upon election. His first picks to be the United States Trade Representative declined, one notably telling him he did not think the President was likely to accord international trade sufficient importance in his Administration. One priority after another – health care; fiscal responsibility; budget deficits; Iraq; gay rights; Pakistan; Afghanistan; hunting down Osama Bin Laden; immigration – overwhelmed a trade agenda, and he has now gone longer without TPA than any President since the idea was first implemented in 1974. Yet, unlike past Presidents when they did not have such authority, President Obama has plunged into large-scale, multilateral trade negotiations. He seems to be betting that he does not need TPA after all, and that his trading partners will believe him to have more power to complete, sign, and implement than trading partners have believed about Presidents in the past.

Most trade “experts” have been conspicuously silent about the charging elephant. Others who have spoken (few) appear split. Stuart Eizenstat, a senior official in the Carter and Clinton Administrations and former Ambassador to the EU, told a hearing of the House Committee on Ways and Means in May that fast track was “absolutely essential” for TTIP: “Negotiations with the EU can be launched, but they cannot be concluded. The EU is not going to accept our final deal if they know it can be second-guessed by Congress.”

Theodore Posner, former senior staffer on the Senate Finance Committee, wrote in July that a debate in Congress over TPA “probably will saddle our negotiators with certain unwieldy negotiating objectives crafted in an attempt to broker compromises between competing constituencies.” He concludes that TPA legislation probably should not be introduced before negotiations for both the TPP and TTIP are concluded. Writing for a professional newsletter, Law 360, he does not mention that two-thirds of the Democratic caucus in the last House of Representatives wrote the President objecting to their exclusion from the negotiations (the warning echo of Senator Henry Cabot Lodge), or that thirty-six Democratic freshmen sent an alarming letter of similar content to Democratic House leadership in June. Posner emphasizes congressional caprice, not congressional prerogatives, and he assumes, contrary to Eizenstat, that U.S. trade partners will complete negotiations without assurances that the President can deliver on his signature.

House Ways and Means Ranking Member Sander Levin (D-MI) told a Peterson Institute for International Economics audience on July 23 that work on TPA legislation had not yet engaged members and at the staff level was still “rudimentary.” He declined any prediction as to whether there would be legislation in 2013 and avoided mention of the involvement of the Obama Administration. But, he emphasized that TPA legislation would have to strengthen the role of Congress in developing trade agreements, which he said was necessary to build bipartisan support for the outcomes.

Republicans have indicated support for TPA, but Tea Party Members of Congress quietly have indicated their reluctance to grant the President more powers. In the past, Presidents might have counted on Republican votes for negotiating free trade. Today, at best the Republican Party probably would split.

New USTR Michael Froman, at a July 18 Ways and Means Committee hearing, effectively reported that leadership on TPA would not be coming from the White House: the Administration was, he said, “ready to engage and to help in that process as requested.” Two weeks later, he told the U.S. Chamber of Commerce – the leading champion of TPA – that “we stand ready to provide technical assistance and are doing so as required.” On July 30, the President himself declared his interest in TPA, but said he would pursue his interest by providing support to Congress.

A substantial number of Members of Congress from the President’s own party are complaining that they must define the objectives of trade agreements, have access to all information throughout the negotiating process, and be fully informed. They are complaining, with specific reference to the TPP, that they have not had access to information, have not participated in framing negotiating objectives, and have not been kept well informed.

As congressmen complain that negotiations have been “secretive” and they have been excluded, Ambassador Froman told the Chamber of Commerce that, “It’s an incredibly complex negotiation,” an observation that could hardly comfort legislators being asked to surrender authority to the judgments and choices of the President.

The White House, meanwhile, has been trying to accelerate completion of TPP negotiations, without Congress. Inside U.S.Trade quoted a “business source” at the most recent negotiating round in Malaysia saying, “There’s a lot of pressure to close everything that can be closed,” and referred to other private sources saying that “this pressure is more palpable than it has been in any negotiating rounds this year.” It may be merely coincidental, but as Congress has complained of being excluded, the Administration seems eager to complete the deal faster.

There are additional considerations. USTR has complained publicly that it does not have enough negotiators to cover TPP and TTIP negotiations simultaneously (they are negotiating 29 different chapters in the TPP alone). Closing chapters will oblige late entrants to the negotiations (such as Canada, Mexico, and Japan) to accept terms negotiated by others or be excluded. There may be broader economic considerations, that completion of a sweeping and landmark trade agreement could jump-start economies that have been improving from the Great Recession, but slowly.

Despite all the possible explanations, it is apparent that the Obama Administration is not going to seek TPA aggressively before completing the TPP negotiations. It is also apparent that this Congress, and any Congress, would be reluctant to endorse a negotiated package without having participated intensively in its development and strategic intent.

And then it is essential to consider this Congress in particular, a Congress that could not agree for more than a month on a formula to control interest rates on student loans nor on any formula to preserve food stamps for the poor. Even if Congress were not crippled by partisanship and ideological division, and not directed by party leaders with little apparent control of their caucuses (a problem especially acute in the Republican Party), it would still be a Congress whose opposition party is determined to deprive the Democratic President of any major accomplishments. With a Republican Party study warning of the party’s demise without comprehensive immigration reform, House Republicans have blocked it. Republicans still, four years after passage, seek repeal of the Affordable Care Act, long after their efforts failed in the courts. The introduced legislation for this purpose for the fortieth time at the end of July. A plan of certain Senate Republican luminaries is to defund the Affordable Care Act during autumn budget talks, reminding the President that even legislation he thinks he has passed remains vulnerable to the opposition.

Successful completion of either trade negotiation would deliver to the President a signature accomplishment. With a Senate whose Minority Leader said his sole objective was the defeat of this President and a House of Representatives that routinely rejects legislation approved in the Senate, it is difficult to imagine why anyone would expect Congress to deliver President Obama a signature achievement in international trade. Perhaps, understanding the odds, the President is unprepared to invest much capital in Congress for such doubtful support.

Democratic Presidents often have more success with international trade deals than Republicans, if only because Democrats are presumed to be protectionist and Democratic support is particularly difficult to muster for free trade. When a Democratic President presents a free trade agreement (or legislation for trade liberalization), he can expect bipartisan support because his own caucus, typically reluctant about free trade, will not abandon him. For this reason, if no other, President Obama may expect approval of his negotiations after the fact. Such a calculation, however, with the present (and likely next) Congress would reflect exaggerated optimism.

CONCLUSION

The merits of the TPP and TTIP may be undeniable. They could improve trade and enhance the world economy. They could create jobs. There is logic in the enthusiasm negotiations for them have inspired.

There are also concerns about the merits. China may have stopped its private complaint about the TPP because, realistically, it may have nothing to fear from it, but China cannot have missed the message. It is a message that will not make China-U.S. relations easier, or stimulate mutual confidence and trust.

There are also legitimate concerns about specific contents, particularly because the many constituencies that must be satisfied have not yet seen and understood what the United States is negotiating. The Administration gives the impression that it does not want constituencies to be fully informed. Otherwise, there would not be a congressional chorus about deprivation of adequate information.

Even were all in order – the merits impeccable and constituencies pacified if not satisfied – it remains that Congress is to be presented deals after their completion. No Congress likely would stand for it, but this Congress, determined to deprive the President of any and all achievement, is likely to grant neither an up-or-down vote (were the President ever to ask), and even less likely to accept the agreements as negotiated.

When President Obama inherited from the Bush Administration three bilateral trade agreements requiring Congressional support, he spent years renegotiating terms before presenting them to Congress, even though they had been negotiated by a President when he possessed fast track authority. President Obama has no such authority, is not likely to receive it, and is not likely to confront a Congress eager to anoint him a successful champion of free trade.
Mexico’s Ambassador to the United States told a Washington audience in July that he had spoken with fifty Members of Congress since January about Mexico and North America in the context of world trade. He seemed to think this number significant. Senior European officials, when asked about the congressional veto over TTIP, have referred to discussions with USTR. There are no signs of a concerted effort to rally congressional support. Instead, they seem to assume what the Administration apparently assumes, that when the time is right Congress will endorse a sweeping new trade agreement. Regrettably, neither history nor institutional prerogatives lend any credibility to what seems to be little more than wishful thinking.

The TPP and TTIP have aroused extraordinary interest in international trade and policy and have provided employment for a widening trade community inside and outside government. Such engagement and enthusiasm, however, does not mean these agreements will go to completion and, if somehow they do, there remains even less probability that the elephant in the room will not step on them.
华盛顿的贸易政策圈正热烈讨论自多哈会谈失败以来规模最宏大的两大国际贸易谈判。在世界其他国家的首都,讨论可能更为热烈。奥巴马政府在七月中旬提出在年底前完成跨太平洋战略经济伙伴关系协定(TPP)谈判,同时也为跨大西洋贸易和投资协定(TTIP)谈判制定了相同的目标。贸易政策人士每周必读的“圣经”——《美国贸易内幕》近期以30页的篇幅报道了这两大谈判。

中国的缺席引人注目。其实这并不令人惊讶。TPP谈判的倡议者是势力单薄的亚洲国家——新加坡、新西兰和文莱以及南美洲的智利,这些亚洲国家无一例外都担心日趋强大的中国。它们于2008年说服美国加入它们的贸易谈判,并扩张至澳大利亚、秘鲁、越南,乃至日本、加拿大和墨西哥,逐渐编制了一张包围中国的网。最近一年里,七个国家和地区(包括台湾)要求加入谈判。

多哈会谈因农业问题而陷入困境,中印等国抱怨欧美等国为本国农业提供大量补贴。在它们看来应为“发展回合”国际贸易谈判。2013年美国国会讨论农业法案时,争论的焦点就是实质性削减补贴。连锁反应,欧洲也不会削减补贴。两大贸易团体不采取实质性举动,世界贸易谈判也将停滞不前。

TPP的设计宗旨是侧重于21世纪关注议题的“高标准”区域协定,例如知识产权保护和金融服务等。因此,它从诞生开始就将中国排除在外。

TPP看起来、并同时让人感觉是遏制中国,当美国在亚太地区的盟友加入谈判时更加深了这一印象。TPP谈判加速同时,奥巴马总统提出“重新侧向”亚洲、美国政府严厉指控中国网络谍战、针对中国绿色科技展开贸易措施、严格审查中国对美投资。因此,虽然言论上声称欢迎中国加入TPP谈判,但实际上是建立封锁中国的长城。

长时间以来中国认为TPP是美国敌意增长的最佳表现,但随着谈判国家数量增加、谈判内容日趋复杂,中国显得更担心自身经济增长速度放缓以及与日韩的三边贸易谈判进展。中国可能也认识到谈判日趋复杂、牵涉的利益越多,完成谈判的可能性也逐渐缩小。

当代表全球百分之四十贸易量的国家参与TPP谈判时(美国、日本、加拿大、墨西哥等),欧洲的不安与日俱增。美国的“重新侧向”亚洲政策一开始仅仅表现在战略和军事领域,TPP谈判使得这一政策带上经济色彩。加拿大和欧洲此前已经开始自由贸易协定谈判,但是面临经济衰退的欧盟更希望能振兴对美关系。奥巴马政府则希望借跨大西洋贸易谈判表明美国侧向亚洲并不以牺牲欧洲为代价、同时另一“高标准”协议也可吸引企业支持,

平衡美国对外政策、让欧洲也从美国经济复苏中受益显得非常重要。当美国进入完成TPP谈判的关键时刻,美国与欧盟展开自由贸易谈判。假设这些谈判能够实现,局促不安的大象正在谈判屋里走来走去。

 

大象

美国政府谈判签订的贸易协定需经国会批准,或是参众两院的多数票、或是参议院三分之二票。如果贸易协定将改变美国法律,则参众两院都需起草并通过执行法案。

美国总统制与世界其他国家的制度不同。在其他国家,占议会多数席位的党派占据部长要职,他们的权利来自议会选举胜利。当他们在国际舞台上代表国家作出承诺后,几乎都能保证获得立法机构的批准。但是美国总统没有这样的权利。有时美国总统所在的党派仅在参众议院占少数席位。当美国政府代表和国外政府签署协议后,他们需要与参众两院领导人协商;有时美国政府被迫再度与谈判国家展开谈判。

令人惊讶的是,各国领导人似乎都遗忘了二十世纪最重大事件之一。一次世界大战结束后,威尔逊总统通过艰苦而漫长的谈判成立了国际联盟。但是美国参议院以被排除在《凡尔赛条约》谈判之外为由否决了这一条约。当国联解体时,美国无法作为成员国之一维持这一国际组织。

总统和国会都充分认识到如果总统签字没有说服力,则美国无法有效推进国际贸易谈判,因此于1974年设立了“快轨程序”机制。“快轨程序”机制即为:总统保证在进行贸易谈判时与国会充分沟通,国会则或是批准、或是否决这一协定,决不添加任何修正案。(小布什总统将“快轨程序”改名为“贸易促进权”。)“快轨程序”或“贸易促进权”并为就两院起草并通过的协定执行法案提供任何保证,但是贸易伙伴可以确信当总统签署协定后,美国国会不会修改协定内容。

当总统希望通过国际协定、贸易自由化留下丰功伟绩时,国会就会就授予“贸易促进权”刁难政府。国会成员迅速认识到当总统迫切希望得到某一权利时,他将愿意与国会谈判并以放弃某些权利为交换。就这样,“贸易促进权”从美国对外政策和国家团结的表现转变为国内政治讨价还价的武器。总统越希望获得“贸易促进权”,就有更多国会成员估算自己可以帮助总统获得这一权利。最终,国会成员可通过拒绝授予总统“贸易促进权”的方式否决总统在外交领域获得成就。

国会在克林顿总统就任后拒绝重新批准快轨程序,贸易圈内纷纷猜测贸易代表巴尔舍夫斯基可以取得什么成就呢TPP她通过修正案促进了多个多边协定(最引人注目的自然是中国加入世界贸易组织)以及双边提议(如将智利添加至《北美自由贸易协定》,但是失败了)。但规模宏大的新协定就不在她掌控范围内了。

布什总统迫切希望得到“贸易促进权”,上任伊始就积极努力寻求国会授权。他以215票对212票获得众议院批准,同时众议院详细列出谈判要求。在他第二任内,他的阿富汗、伊拉克战争政策使他的外交政策饱受批评,国会也因此拒绝重新批准“贸易促进权”。

与布什总统相比,奥巴马总统对国际贸易的重视程度不高。奥巴马总统就任伊始,他的美国贸易代表首选婉言谢绝这一提名,因为这一候选人认为总统不会充分重视贸易事务。对奥巴马总统而言,比贸易政策更重要的是:第一是医疗改革,其次分别为财政支出、政府预算赤字、伊拉克、同性恋权利、巴基斯坦、阿富汗、通缉拉登、移民等。同时奥巴马也没有获得快轨程序授权。自这一程序从1974年实施以来,他是没有这一授权时间最常的总统。但是与其他没有这一授权的总统不同,奥巴马总统开展了大规模多边贸易谈判。他似乎下赌注认定自己并不需要快轨程序,他的贸易伙伴将会相信他比史上其他美国总统拥有更大的权利,可以完成并顺利实施这些贸易协定。

多数贸易“专家”面对屋中大象保持沉默。少数已经发表意见的则各持己见。卡特及克林顿总统任内的高级官员、前美国驻欧盟大使Stuart Eizenstat五月在众议院筹款委员会举办的听证会上发言指出,快轨程序对跨大西洋自由贸易谈判至关重要。他指出:“与欧盟谈判可以开始但却很难结束。如果欧盟知道国会可能会对协定有所疑议,他们不会接受我们的终稿。”

全文请参见英文全文

翻译: 朱晶

 

American Suspicions Could Deter Chinese Investment 美国的猜疑将阻碍中国对美投资

Posted in CFIUS and Investment

By Elliot J. Feldman and John J. Burke

Chinese officials have long complained about American national security reviews, insisting they are an obstacle to Chinese investment in the United States. We have long pushed back, including in several articles posted on this blog in December 2009, January 2010, February 2011 , and May 2011, insisting the complaints have been exaggerated. Despite some celebrated instances that seemed very explicable (obstacles to Huawei, for example, because of its links to the PLA; objections to First Gold because of its proximity to military installations), almost all Chinese investments have proceeded without incident or challenge, and the American market has been open and welcoming.

The welcoming environment may be changing, both because Chinese investments may be of higher profile, and because there may be growing suspicions about Chinese intent. Two cases over the last year have led us to think that China’s complaints may be, at least to some degree, legitimate, and that there may be an anti-China prejudice beginning to manifest itself.

The first case involves a project that fell victim to the Committee on Foreign Investment in the United States (“CFIUS”) and presidential action, only the second of its kind. The second case has no discernible connection to national security and likely will be completed, but it has elicited an hysterical, xenophobic reaction reminiscent of the Japanese acquisition of Rockefeller Center twenty-four years ago.

Promoting Green Technology

         The Project And The Problem

Ralls Corporation, incorporated in Delaware and owned by two Chinese nationals –Dawei Duan and Jialing Wu — who are senior managers in the Sany Group in China, acquired interests in four Oregon wind farms, called the “Butter Creek Projects,” from Terna Energy USA Holding Corporation (Terna), a Greek company, in March 2012. There are many wind farms in this area of Oregon with turbines manufactured by a variety of companies, foreign and domestic. According to the Ralls owners, the location presents an excellent opportunity to showcase Sany’s Chinese turbine technology. They envisioned the installation of Chinese equipment to compete, potentially, with other turbines for projects all around the United States.

The Oregon project sites overlap a restricted airspace and bombing zone used by military aircraft out of Naval Air Station Whidbey Island. The original developers, Oregon Windfarms LLC, obtained in 2010 and 2011 a “Determination of No Hazard” from the Federal Aviation Administration (“FAA”) for each of the projects, which included a Department of Defense review to prevent, minimize, or mitigate adverse impacts on military operations and testing. Overall, the Naval Air Station is some two hundred miles from the Butter Creek projects.

Only one of the four Butter Creek projects intruded upon restricted airspace. The U.S. Navy alerted Ralls of concerns, and Ralls cooperated with the Navy to relocate the project. The new location required new approvals (approvals for the other three projects had conveyed with acquisition), and the Navy wrote to the Oregon Public Utility Commission on Ralls’ behalf.

Ralls and Terna did not submit a notification to CFIUS until after the transaction closed, two months after construction had begun, and only then because CFIUS requested that they do so. Notwithstanding advice from a Treasury Department official to postpone construction until after CFIUS’ review was completed, Ralls continued construction of Chinese wind turbines on the four sites.

Ralls was proceeding with confidence that the Butter Creek projects presented no national security questions. Three of the projects were outside restricted airspace and the fourth had been moved in cooperation with the U.S. Navy. Other foreign companies were erecting and operating wind farms in the same area. Solar and wind technologies were the primary subjects of agreements between Presidents Obama and Hu Jintao for Chinese-American cooperation in the development of green technologies. Chinese investment in the U.S. was being encouraged.

        CFIUS Intervention: A National Security State?

After conducting the initial 30 day review, CFIUS determined that a full investigation was needed. It also imposed an interim mitigation order on July 25, 2012, ordering Ralls to stop all construction and operations at the wind farms and prohibiting access to the project sites except by CFIUS-approved U.S. citizens. Ralls complied, and all construction stopped.

On August 2, 2012, CFIUS amended that order to prohibit Ralls from selling or transferring any Sany-produced items to third parties for use at the project sites and from selling the project companies without first giving CFIUS notice and opportunity to object to any intended buyer. These restrictions effectively took from Ralls all the value of its efforts.

President Obama issued an Order on September 28, 2012 prohibiting the ownership of the wind farm companies by Ralls, the two Chinese individuals who owned Ralls, or Sany, because of “credible evidence” that they, “through exercising control of the [companies,] might take action that threatens to impair the national security of the United States.” No evidence of this threat was offered to Ralls or Sany or the public.

The last time a President of the United States acted this way (and the only previous time), George H. W. Bush issued a similar order in 1989, requiring Chinese divestment of an aircraft parts manufacturer. Aircraft parts, however, are more plausibly a national security risk than wind towers.
Ralls was given 90 days to divest and 14 days to remove all structures or physical objects from the project sites. The Presidential Order also prohibited Ralls and its agents from accessing the project sites.

        Ralls Strikes Back

Ralls sued on September 12, 2012, claiming that CFIUS’s interim mitigation order violates the Exon-Florio Amendment and the Administrative Procedure Act. Ralls subsequently amended its complaint to include President Obama’s order and a claim that the divestiture requirement is an unconstitutional “taking” of property without due process of law because Ralls was not given an opportunity to review, respond to, or rebut any evidence upon which CFIUS or the President based their orders.

The United States District Court for the District of Columbia, on February 26, 2013, dismissed Ralls’ claims that the President’s order violated the Exon-Florio Amendment and the Administrative Procedure Act, finding that the President acted within his powers under those laws and that the statute prohibits judicial review. The court found that it did have jurisdiction to consider the Constitutional challenge, however, and, therefore, allowed it to proceed without making any ruling on the merits of the claim. Meanwhile, Ralls has forfeited the projects and its investment, hoping to recover the latter through its Fifth Amendment constitutional claim.

Whose Pork?

On May 29, 2013, China’s Shuanghui International Holdings Ltd. announced it was acquiring Smithfield Foods, Inc., the largest U.S. publicly-traded, and the world’s largest, pork processor and hog producer. Shuanghui, a private holding company based in Hong Kong, owns China’s largest meat processor, which is publicly-traded, of the same name. Shuanghui Chairman Wan Long indicated his intention was to expand and improve service to the Chinese market and its growing demand for quality pork. Smithfield President and CEO Larry Pope said he did not think anything would change in Smithfield’s operations, but Smithfield’s ability and opportunities to export – a key international trade goal of President Obama – would improve.

Although there is no obvious national security interest in raising and slaughtering hogs, buying and selling pork, Smithfield voluntarily invited CFIUS review. It was prudent to do so. On the day of the announced merger, Senator Chuck Grassley (R-Iowa) called for a thorough CFIUS review, complaining that, “No one can deny the unsafe tactics used by some Chinese food companies,” asking, “How might this deal impact our national security? What role does the Chinese government play in Shuanghui, like it does in so many other ‘private’ companies?” He declared these questions “important” “for CFIUS to get answered.”

United States Senator and Agriculture Committee Chairwoman Debbie Stabenow (D-MI) opined on June 7 that her committee likely would hold hearings on the acquisition and that CFIUS should “proceed with caution.” She questioned Shuanghui’s food safety record while acknowledging that CFIUS had not previously addressed food safety. She complained, in the same breath, that CFIUS “typically” had been ”pretty narrow in terms of military security,” adding that, “We all say food security is national security.” Senator Stabenow encouraged alternative bids for Smithfield, apparently preferring buyers other than Chinese.

Senator Stabenow followed her June 7 statement with a letter on June 20, coauthored by the Ranking Member of the Agriculture Committee, Thad Cochran (R-MS), addressed to Treasury Secretary Jack Lew, raising food safety questions, as did the Chairman and Ranking Member of the Senate Finance Committee (Max Baucus, D-MT, and Orrin Hatch, R-UT) in a separate letter (the Senate Finance Committee controls international trade; its letter complained about Chinese barriers to imports of U.S. foodstuffs, particularly pork and beef). As we have written before, nothing seems to unite the divided, partisan Congress of the United States like China, and not in a good way.

The thinly disguised antipathy toward Chinese ownership of Smithfield was expressed by others. Virginia Republicans (Frank Wolf and Randy Forbes) asked the Department of Justice for a market impact investigation. They alleged “evidence to suggest strong ties” between Shuanghui and the Chinese government, but could identify, when questioned, nothing more than a loan from the Bank of China. Massachusetts Democrats, Senator Elizabeth Warren and Congresswoman Rosa DeLauro, in a letter to the new U.S. Trade Representative Michael Froman, questioned foreign ownership of agricultural land, even though Massachusetts is not one of the eight states that restrict such ownership and agricultural land was not at the center of the transaction.

A group of seventeen farm, producers, consumer and rural organizations addressed a letter to CFIUS on July 9 opposing the acquisition by alleging threats to unnamed U.S. security interests, food security, safety of food supply, and even technology transfer for maintaining safety in food supply (implying that they would rather have China deficient in food safety than have China benefit from American experience and technology). The private sector letter was prelude to the Senate Committee hearing Senator Stabenow promised, which convened on July 10.

Larry Pope, President and CEO of Smithfield Foods, disarmed much of the criticism at the hearing. Declaring that, Smithfield’s operations would not be changed in any way by the Shuanghui acquisition, he concluded by declaring that “The bottom line is that this is all about US exports to the Chinese market, not Chinese exports, or a loss of US competitiveness.” He directly contradicted the complaints from the Senate Finance Committee about barriers to American exports of meat products to China: this transaction, Pope explained, was about opening the Chinese market.

The anti-Chinese sentiment, despite Pope’s reassurances, did not abate. Senator Sherrod Brown (D-Ohio) called on the Obama Administration, at the same Agriculture Committee hearing, to include officials of the United States Department of Agriculture in the CFIUS review of the transaction. He was reasserting the argument of a bipartisan letter he had addressed to Secretary Lew on June 20, co-signed by fifteen Senators, including most of the Agriculture Committee. He claimed the government, because of the sheer size of the transaction, should scrutinize the “long-term impact on workers, producers, and consumers,” notwithstanding that there is no legal basis for such an inquiry: “We need guarantees that under Chinese ownership, we will continue to see high-quality food products that comply with stringent American food safety and biosecurity standards.” Of course, U.S. laws and regulations do not discriminate between domestic and foreign owners: Chinese owners would be subject to the same régime as American owners for “food safety and biosecurity standards.”

Lessons And Ironies

The safety and security of American food supply is not without its critics. Europeans, Japanese, and Koreans all have refused to import American beef because of doubts about its quality and safety. The United States does not have a monopoly on a safe and secure supply of food.

Many analysts traced the 2009 swine flu epidemic to deplorable conditions at a Smithfield Foods compound in Mexico. Smithfield has been accused, although perhaps not as often as Shuanghui, of inhumane treatment of animals and doubtful food safety standards. The operating assumption in the U.S. Congress, however, is that no American operation could compare unfavorably to operations in China.

Without any legal basis for questioning the foreign acquisition of a food processor, Senators and Congressmen, Democrat and Republican, are looking to CFIUS to save their special interests and to express their anti-China sentiments. It is apparent, however, that CFIUS cannot (and should not) be bent into this new shape.

CFIUS has continued to approve potentially controversial deals involving China, recently a Chinese oil company’s acquisition of Nexen Energy. Nevertheless, the campaign to broaden the CFIUS mandate to Smithfield Foods threatens every future Chinese investment. Taken with the Ralls/Sany experience, Chinese wariness appears warranted.

The Ralls case reinforces at least three points. First, threats to national security can vary drastically based on the facts of the case. In Ralls, it was not what the target company did that created the national security issue. Ralls was building wind farms in Oregon, as were many other companies, foreign and domestic, an activity encouraged by the leadership in both China and the United States. Instead, it was who they were, and their location (and location could yet jeopardize aspects of the Smithfield acquisition).

The fact that the Ralls project is Chinese and has been treated differently from similar projects involving other foreign enterprises in the same geographic area is particularly troubling. Sany has said it wanted to develop wind farms in this location because it wanted to demonstrate the superiority of its products in direct competition with wind farms erecting turbines from Denmark, the United States, and other countries in the same geographic area. It then hoped to market its wind turbines elsewhere in the United States. Because CFIUS is secretive, the fact that the project was Chinese has not been identified as the salient cause for rejection, but the Butter Creek projects were proceeding without difficulty when owned by a Greek company.

Second, the location, in proximity to military installations, created a basis for rejecting the projects. Nonetheless, it is significant that the U.S. Navy and the Department of Defense both had been involved directly in providing and even championing approvals for Ralls, and wind farms owned by other foreign interests were operating in the area.

Smithfield filed a voluntary notice for CFIUS review even though there was no apparent need for one. This step should not have been necessary, but probably was wise. Foreign businesses, especially Chinese, should give very serious thought to filing voluntary notices with CFIUS prior to closing a transaction, even when the project does not self-evidently raise a security question. In the wind farm case, Ralls certainly knew of military concerns, having been engaged by the U.S. Navy regarding location. Smithfield probably learned this lesson from Ralls, that it is better to volunteer for review regardless how doubtful the need may seem.

Because the courts cannot review the merits of a divestiture order from the President, working with CFIUS to address national security concerns prior to an acquisition is essential. Had Ralls done so, it might have been possible to work out some mitigation arrangement that would have allowed at least some part of the transaction to go through. Even were that not possible (and this case raises doubts because problems arose not from the nature of the project – wind farms – nor strictly from location – because other foreign operations were in the area – but apparently because the project was Chinese), Ralls might have avoided the costs and adverse press of an acquisition and forced divestiture. For Smithfield, it appears unlikely that CFIUS could question more than potential proximity to some security installations. The overall deal is likely to survive review.

There remain abundant opportunities for Chinese investment in the United States, and the Smithfield case, the largest ever, may be the best example. Nonetheless, the Ralls case does suggest, as Smithfield is experiencing, that Chinese investments may face particular scrutiny. It would be prudent for Chinese buyers, in particular, to err on the side of caution by voluntarily seeking CFIUS review when there appears to be even a remote possibility of national security concerns, and that they organize for effective diplomatic, political, and public relations before their projects go public.

Implications For A Bigger Picture

There is apparently a growing ambivalence in the United States toward China. The Obama Administration aggressively assailed Chinese cyberspying, only to face the Snowden leaks of American spying on allies and citizens. New reports have emerged that the Pentagon is sketching an AirSea Battle plan against China. American officials are promoting again the alliance with Japan in the presence of a nationalist Japanese Prime Minister who is rolling back even a glimmer of reconciliation with China following Japanese invasion and occupation during the last century.

These classic national security measures are being complemented by muscular economic policies. The Administration is pressing to complete the Trans Pacific Partnership, which conspicuously embraces almost everyone in the Pacific except China. Decisions of the U.S. Department of Commerce and the U.S. International Trade Commission have blocked imports from China of solar cells and wind towers, the essential elements of the green technology for climate change promoted by Presidents Obama and Hu Jintao.

Officially, publicly, and logically, China is not an enemy of the United States. There are critical planetary issues that require bilateral cooperation. Climate change, for example, requires the cooperation of the two leading producers of carbon. The global economy cannot right itself without the two leading producing and consuming nations managing together. The North Korean nuclear threat cannot be contained without the joint efforts of China and the United States. For all its occasional bravado, China remains a developing country that needs American support of its continuing reduction of widespread poverty.

Recent developments must be a source of worry. Americans do not have to be naïve to promote cooperation and friendship. They do not have to instill paranoia in a country too accustomed to foreign occupation and humiliation. CFIUS is perhaps the least transparent of American political processes. In the most recent cases reported here, it also appears to be discriminatory.

CFIUS, to remain credible as a defender of national security, must resist the anti-China sentiment demanding a mandate expanded to food safety. Further, it should recognize the constitutional implications of the Presidential Order divesting Ralls and find a way to compensate. The alternative is to discourage Chinese investment, Chinese confidence, and Chinese trust. American security will not be enhanced by growing distrust between China and the United States.

For their part, Chinese must recognize the sentiments being expressed in the Congress of the United States. Shuanghui, wise to invite CFIUS review for a project with no traditional implications for national security, should set an example for other Chinese investors. To get what they want and need, Chinese may have to go further than the law would seem to require. Mutual trust, it seems, remains still more aspiration than achievement.