Retaliation

Prose by Sarah Coffing

Pecularities of Retaliation in WTO Dispute Settlement

The dispute resolution procedures of the World Trade Organization allow sanctions to be imposed when a country is unwilling to bring a WTO-inconsistent trade measure into conformity. Apart from the fact that the procedure for triggering the retaliation process has ambiguities that need to be removed, the retaliation itself has some undesirable economic features. This paper looks at why compensation is not preferred to retaliation and then examines five economic features of the temporary trade retaliation that WTO may permit under certain conditions. Both efficiency and equity concerns are raised. The paper concludes with some suggestions for reforming this part of WTO dispute resolution during the review of the Dispute Settlement Understanding that is due to be completed by May 2003.WTO, Dispute settlement, Compensation, Retaliation

Intelligence Whistleblower Protections: In Brief

Intelligence whistleblowers are generally Intelligence Community (IC) employees or contractors who bring to light allegations of agency wrongdoings by, for example, disclosing information on such wrongdoings to congressional intelligence committees. Such disclosures can aid oversight of, or help curb misconduct within, intelligence agencies. However, intelligence whistleblowers could face retaliation from their employers for their disclosures, and the fear of such retaliation may deter whistleblowing. Congress and President Obama have taken measures to protect certain intelligence whistleblowers from retaliation, and thereby seemingly encourage these whistleblowers to disclose information on agency wrongdoing. These measures are the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA), Presidential Policy Directive 19 (PPD-19), and Title VI of the Intelligence Authorization Act of 2014 (Title VI). Each of these measures details what disclosures fall within the scope of its protections, which generally include certain disclosures through government channels (e.g., disclosures to agency inspectors general or congressional intelligence committees). None of these measures protect against retaliation or potential criminal liability arising from disclosures to media sources. The ICWPA applies to both IC employees and contractors, whereas PPD-19 and Title VI appear to apply only to IC employees. The ICWPA is the oldest of the three intelligence whistleblower protections and, of the three, provides the least amount of protection to those falling within its scope. The ICWPA does not explicitly prohibit retaliation against IC whistleblowers. Rather, it outlines procedures through which whistleblowers can disclose to the congressional intelligence committees information on “urgent concerns,” such as violations of law or false statements to Congress. The ICWPA further contains no explicit mechanism for obtaining a remedy for retaliation stemming from disclosure of an urgent concern to Congress. It merely allows an IC whistleblower who has faced an adverse personnel action because he disclosed an urgent concern to the congressional intelligence committees to then use the ICWPA’s disclosure procedures to inform the committees of the retaliation. PPD-19, unlike the ICWPA, expressly prohibits an IC employee from taking an adverse personnel action or security clearance determination against another employee because of a protected disclosure. It additionally requires intelligence agencies to develop procedures for internally investigating, through agency Inspectors General, allegations of impermissible retaliation. After finding that impermissible retaliation has occurred, Inspectors General can recommend that agency heads take corrective action. When an employee has exhausted the internal review procedures that must be established under PPD-19, he can appeal to the Director of National Intelligence, who then has the discretion to convene a review panel. If it finds that improper retaliation occurred, the review panel can recommend that the agency head take remedial action. Title VI seemingly codifies, and expands upon, some of the protections of PPD-19. Its protections, and modes of enforcement, differ depending on the type of retaliation alleged. More specifically, Title VI’s protected disclosures and enforcement methods in the context of allegations of adverse personnel action are distinct from its protected disclosures and enforcement methods for allegations of adverse security clearance or information access determinations

Antidumping and Retaliation Threats

This paper examines how the prospect of foreign retaliation affects the antidumping (AD) process in the United States. We separate the capacity for retaliation into two channels: (i) the capacity for foreign government retaliation under the dispute settlement procedures of the GATT/WTO system, and (ii) the capacity for foreign industry retaliation through reciprocal claims of dumping and the foreign pursuit of AD duties in countries with AD regimes. Using a nested logit framework and analyzing U.S. AD cases between 1980 and 1998, we find significant empirical evidence consistent with the theory that U.S. industry is influenced by the threat of reciprocal foreign ADDs in its decision of which foreign countries to name in the initial AD petition, and that the U.S. AD authority's antidumping decisions are influenced by the threat of foreign retaliation under the GATT/WTO dispute settlement mechanism.

The Case for Auctioning Countermeasures in the WTO

A prominent problem with the WTO dispute settlement procedures is the practical difficulty faced by small and developing countries in finding the capacity to effectively retaliate against trading partners that are in violation of their WTO commitments. In light of this problem, Mexico has proposed that retaliation rights be made tradeable.' We offer a first formal analysis of the possibility that retaliation rights within the WTO system be allocated through auctions. We show that the auctions exhibit externalities among bidders, and we characterize equilibrium bidder behavior under alternative auction formats. A key feature of auction format is whether the country in violation of its WTO commitments is prevented from bidding to retire the right of retaliation: if so, then the possibility of auction failure' arises, in which no bids are made despite positive valuation by the bidders; if not, then auction failure is precluded, and indeed the right of retaliation is always retired. We also evaluate these different auction formats from normative (revenue, efficiency) standpoints.

The Other 20 Cents Isn’t Worth It: The Inadequacy of Title VII’s Anti-Retaliation Framework

This Article examines the framework for resolving Title VII retaliation disputes through the lens of gender pay disparity and proposes that the current framework is inadequate. The Article begins by illustrating the issue and the impact of retaliatory conduct in the workplace through the stories of two female workers. It also explains the Title VII retaliation standard and explores the process for filing and pursuing an anti-retaliation claim under this framework. Ultimately, the current framework is inadequate for two reasons. First, it does little to discourage retaliatory conduct by employers or co-workers because what amounts to “retaliation” under the law is under-inclusive and difficult to prove. Second, the employment relationship is among the most important in American society, but instead of seeking to salvage it, the current litigation-driven anti-retaliation framework destroys it. Consequently, the Article proposes an alternative dispute resolution method for solving retaliation disputes and provides examples from the transformative mediation and ombudsman models

Antidumping: Welfare Enhancing Retaliation?

Over the last two decades, the use of antidumping (AD) measures has been characterized by two main features. First and foremost, it has increased dramatically. Additionally, it has not - to a large extent - been used to counteract the existence of dumping, but rather in a strategic or retaliatory fashion. These empirical findings have led many to propose the elimination of this instrument altogether, on the basis that its current use is arbitrary and, consequently, welfare reducing. We argue that these concerns may be unfounded since, in a world of restricted trade policy instruments, a retaliatory use of AD might be welfar enhancing. By modeling the trade relationship between countries as a repeated game of hidden information, we show that retaliation can be welfare increasing with respect to a rigid rule on the use of AD. We stress the fact that, underlying this result, is the unavailability of transfers or export subsidies in the current world trading system.

Survey of Federal Whistleblower and Anti-Retaliation Laws

This report provides an overview of federal whistleblower and anti-retaliation laws. In general, these laws protect employees who report misconduct by their employers or who engage in various protected activities, such as participating in an investigation or filing a complaint. In recent years, Congress has expanded employee protections for a variety of private-sector workers. Eleven of the forty laws reviewed in this report were enacted after 1999. Among these laws are the Sarbanes-Oxley Act, the FDA Food Safety Modernization Act, and the Dodd-Frank Wall Street Reform and Consumer Protection Act. The report focuses on key aspects of the federal whistleblower and anti-retaliation laws. For each law, the report summarizes the activities that are protected, how the law’s protections are enforced, whether the law provides a private right of action, the remedies prescribed by the law, and the year the law’s whistleblower or anti-retaliation provisions were adopted and amended. With regard to amendment dates, the report identifies only dates associated with substantive amendments. For enactments after 2001, the report provides information on congressional sponsorship and votes

Limited Incremental Linking and Unlinked Trade Agreements

The broadened scope of the GATT/WTO through successive rounds of trade liberalization is explained as a result of trade-partner specificity, linked agreements, and cross retaliation. In more recent years, however, countries have pursued trade liberalization through sector specific zero-for-zero agreements and preferential trade agreements, both of which have a reduced chance of suffering cross retaliation. This increase in unlinked agreements is explained by imperfect observability of trade policies generating gratuitous trade disputes and unjustified cross retaliation. If the dispute generating noise is perfectly correlated across sectors, however, then it provides no reason not to link agreements in a static sense and in many cases incremental linking still produces more liberalization than static linking. It is only when the noise is imperfectly correlated that linking and cross retaliation are problematic so that some sectors can enforce more liberalization in an unlinked agreement. If the correlation drops, the noise increases, or the number of sectors already covered is large, then incremental linking of more sectors is inefficient and countries pursue unlinked agreements.Trade Disputes, WTO, Dispute Settlement, Dynamic Games.

A Theory of Dynamic Tariff and Quota Retaliation

This paper characterizes, under the most general conditions to date, the steady-state equilibria of a symmetric, two-country trade model in which countries move in alternating-move, dynamic either tariffsetting or quota-setting games in Markov Perfect strategies, and compares the respective equilibrium level of tariffs and quotas with the corresponding pairs in the equilibria of static games. Our results imply that the alleged non-equivalence of the outcomes of tariff-retaliation (neither free trade nor autarky) and quota-retaliation (asymptotic autarky) games in the literature depends crucially on complete myopia, and can be dismissed altogether once dynamic considerations are introduced in an operationally significant manner.Foreign trade policy; Tariff; Quota; Retaliation; Dynamic Game; Markov perfect equilibrium; Supermodular games