December 2020

On 30 December 2020, the European Union and the United Kingdom signed the “EU-UK Trade and Cooperation Agreement” (EU-UK TCA or the Agreement) setting out the terms for their future economic and commercial relations after the UK definitively leaves the EU Single Market and Customs Union on January 1, 2021.

The British Parliament approved the deal by a large majority on the same day. The EU will provisionally apply the Agreement until the European Parliament delivers its approval sometime in February or March.

The Agreement comes after a year of fractious and often acrimonious negotiations. Unsurprisingly, given the context and the premises for the negotiations set down by the UK from the start, the deal is more a divorce agreement than a springboard for closer economic ties.

The latter ambition would be typical in any other trade negotiation: the usual point of trade deals is to facilitate greater fluidity of exchange, and therefore greater economic integration, between two hitherto relatively separate economic spaces.

Yet here, the parties took as a starting point 45 years of deep economic, legal and social integration between the UK and the rest of the EU. Political events in the UK having precipitated its withdrawal from the EU, the EU-UK TCA is the trade equivalent of a separation agreement between an old married couple. The legacy of economic, social and security arrangements going back decades dictate that the “leaving” party cannot make an entirely clean break with its former partner. For its part, the other party seeks to protect its interests, including putting in place mechanisms to manage relations with  its former partner going forward. All of these elements are reflected in the terms of this Great Divorce. And, as is typical of divorce, the immediate effect is likely to leave both parties worse off.


Continue Reading The Brexit Agreement: the Great Divorce

The future direction of the World Trade Organization (“WTO”) hinges not only on the consensus agreement of the Members in appointing the WTO’s next Director-General, but also on the ability of that Director-General to forge a path forward to resolve the myriad issues currently facing the organization.

In August of this year, Roberto Azevêdo stepped down from his position as WTO Director-General, leaving his post open and eight candidates from around the globe in the running.  After months of campaigning, this pool was narrowed to two candidates: Nigeria’s Ngozi Okonjo-Iweala and Korea’s Trade Minister Yoo Myung-hee. On 28 October 2020, the WTO Committee Chairs of the selection process announced that Ms. Okonjo-Iweala was the candidate with the widest support. However, Ms. Okonjo-Iweala must be formally appointed by consensus by the General Council; a prospect that remains tenuous in light of the opposition of the United States. The United States was the only WTO Member to say that it would not support Ms. Okonjo-Iweala, but instead has reiterated that Minister Yoo “must” lead the WTO.  See USTR Statement on the WTO Director-General Selection Process.


Continue Reading A New Year and a Potential New Era for the WTO

The European Commission (EC) on Thursday 17 December issued long-anticipated proposals for new digital technology regulation in the European Union (EU): the Digital Services Act (DSA) and the Digital Markets Act (DMA). Once formally adopted as EU Regulations, these proposals will set a new benchmark for regulating internet platform services. Given their international reach and

Recently-published reports from the U.S. government suggest that, due to COVID and U.S.-China trade tensions, U.S. policy is likely to continue a trend towards incentivizing supply chain de-coupling in the ICT sector where feasible.

On October 20, 2020, the Cyberspace Solarium Commission issued a white paper, “Building a Trusted Supply Chain,” that sets out a “five-pillar” plan to “reinvigorate American high-tech manufacturing and secure the United States’ Information and Communications Technologies (ICT) supply chains,” with a focus on materials, semiconductors, and finished ICT equipment. Established by Congress in 2018, the Commission is comprised of commissioners from both the public and private sectors and is co-chaired by Senator Angus King (I-ME) and Rep. Mike Gallagher (R-WI). This most recent white paper follows a lengthier report issued by the Commission in March 2020 that proposed a strategy of “layered cyber deterrence” as part of an ICT industrial base strategy to “reduce critical dependencies on untrusted” ICTs.


Continue Reading Recent Reports Suggest Supply Chain De-Coupling Policies Likely to Continue

Partners Hunter Johnston and Jeff Weiss have co-authored a four-part article series on carbon capture, utilization, and storage (CCUS) for Law360. Use of CCUS technologies and products are critical to achieving national and global decarbonization goals. Part four of the article includes a discussion on potential trade law and policy, international regulatory cooperation, and

On December 14, 2020, the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) is scheduled to publish an interim final rule modifying certain elements of the exclusion process for steel and aluminum imports subject to tariffs pursuant to Section 232 of the Trade Expansion Act of 1962 (“Section 232”).

When President Trump imposed

On November 24, 2020, the U.S. Department of Commerce (“Commerce”) issued a preliminary affirmative determination in the countervailing duty (“CVD”) investigation of twist ties from China. What is particularly noteworthy about this preliminary determination is Commerce’s decision to countervail the undervaluation of China’s currency, the Renminbi (“RMB”). This marks only the second occasion – following the investigation of Passenger Vehicle and Light Truck (“PVLT”) Tires from Vietnam earlier this year – that Commerce has countervailed a country’s undervalued currency, and the first time it has done so against China. As discussed further below, Commerce’s determination relied on an analysis of the RMB from the U.S. Department of the Treasury (“Treasury”) which differed in meaningful respects from Treasury’s analysis of the Vietnamese Dong (“Dong”) in the investigation of PVLT Tires from Vietnam, suggesting that a less objective, more qualitative analysis may be applied against the RMB in future cases.

Under U.S. law, a subsidy program is countervailable when it meets three criteria. Specifically, the program must constitute (a) a financial contribution provided by a government authority or public body, (b) to a specific firm or industry, that (c) yielded a benefit to the recipient.

The currency undervaluation allegations examined in the PVLT Tires from Vietnam and Twist Ties from China investigations were based on regulations issued by Commerce earlier this year to interpret these terms in the context of currency undervaluation. Regarding the requirement of specificity, Commerce’s new rule provides that enterprises that buy or sell goods internationally (i.e., enterprises in the traded goods sector) may comprise a “group” of enterprises for specificity purposes.


Continue Reading Commerce Takes Action Against Allegedly Undervalued Currencies