On 22 March, US President Donald Trump signed a memorandum related to China’s trade practices that could have significant, wide-ranging consequences for US and global businesses.
The memorandum was issued following an investigation and report of the US Trade Representative (USTR) under section 301 of the Trade Act of 1974, a provision used rarely since the inception of the WTO in 1995. This is the first new section 301 investigation since 2001.
In this case, the USTR investigation sought to determine whether China’s laws, policies, practices or actions are unreasonable or discriminatory and harm American intellectual property rights, innovation, or technology development. The USTR report, also issued on 22 March, made affirmative findings of unreasonable and discriminatory practices that burden and restrict US commerce.
Four USTR findings
Trump directed the USTR to take steps based on the agency’s findings, set out in the presidential memorandum as follows:
“First, China uses foreign ownership restrictions, including joint venture requirements, equity limitations, and other investment restrictions, to require or pressure technology transfer from US companies to Chinese entities. China also uses administrative review and licensing procedures to require or pressure technology transfer, which, inter alia, undermines the value of US investments and technology, and weakens the global competitiveness of US firms.
“Second, China imposes substantial restrictions on, and intervenes in, US firms’ investments and activities, including through restrictions on technology licensing terms. These restrictions deprive US technology owners of the ability to bargain and set market-based terms for technology transfer. As a result, US companies seeking to license technologies must do so on terms that unfairly favour Chinese recipients.
“Third, China directs and facilitates the systematic investment in, and acquisition of, US companies and assets by Chinese companies to obtain cutting-edge technologies and intellectual property, and to generate large-scale technology transfer in industries deemed important by Chinese government industrial plans.
“Fourth, China conducts and supports unauthorized intrusions into, and theft from, the computer networks of US companies. These actions provide the Chinese government with unauthorized access to intellectual property, trade secrets or confidential business information including technical data, negotiating positions, and sensitive and proprietary internal business communications, and they also support China’s strategic development goals, including its science and technology advancement, military modernization, and economic development.”
Possible tariffs, restrictions
Based on the USTR’s findings, Trump directed the USTR to:
(1) Publish a proposed list of products from China that may be subject to increased tariffs, and the amount of the tariff increases, by 6 April 2018, followed by a notice and comment period; and
(2) Pursue WTO challenges to China’s “discriminatory licensing practices” with a progress report to Trump by 21 May 2018.
Trump also directed the secretary of the Treasury to propose appropriate actions to “address concerns about investment in the US directed or facilitated by China in industries or technologies deemed important to the US”, and to report on progress by 21 May 2018.
It has been widely reported that the list of products to be targeted with increased duties represents approximately US$60 billion in Chinese imports and impacts a range of industries including hi-tech products, consumer electronics, apparel and footwear. The draft list is reported to include about 1,300 tariff lines. Once published, the public will have an opportunity to provide comments on the USTR’s proposal. Any duties ultimately imposed would be in addition to any other duties currently payable.
In the meantime, the USTR moved swiftly and on 23 March submitted to the WTO a request for consultation with the Chinese government involving Chinese laws and regulations concerning the protection of intellectual property rights.
Changes to FI rules
Trump directed Treasury Secretary Steve Mnuchin to develop an investment regime “to address concerns about investment in the US directed or facilitated by China in industries or technologies deemed important to the US”. This new regime will be in addition to the national security-focused investment screening conducted by the Committee on Foreign Investment in the United States (CFIUS). It remains unclear what the scope and structure of this new investment regime will be.
It appears likely that the new regime will be based the on the International Emergency Economic Powers Act (IEEPA) of 1977, the same legislation currently supporting US export controls and a number of sanctions. IEEPA gives the US president broad authority to regulate commerce after declaring a national emergency in response to any unusual and extraordinary threat to the US that has a foreign source.
Anticipated retaliation
It is expected that China will impose retaliatory measures on articles imported from the US in response to the president’s announcement. It is also expected that a range of US exports will be impacted, but most notably agricultural exports.
Business Law Digest is compiled with the assistance of Baker McKenzie. Readers should not act on this information without seeking professional legal advice. You can contact Baker McKenzie by emailing Danian Zhang at danian.zhang@bakermckenzie.com.
