World Trade Organization (WTO) Decisions and Their Effect in U.S. Law

[Excerpt] Congress has comprehensively dealt with the legal effect of World Trade Organization (WTO) agreements and dispute settlement results in the United States in the Uruguay Round Agreements Act (URAA), P.L. 103-465. The act provides that domestic law prevails over conflicting provisions of WTO agreements and prohibits private remedies based on alleged violations of these agreements. As a result, provisions of WTO agreements and WTO panel and Appellate Body reports adopted by the WTO Members that are in conflict with federal law do not have domestic legal effect unless and until Congress or the executive branch, as the case may be, takes action to modify or remove the conflicting statute, regulation, or regulatory action. Violative state laws may be withdrawn by the state or, in rare circumstances, invalidated through legal action by the federal government. The URAA also contains requirements for agencies to follow where a change in a regulation or the issuance of a new agency determination in a trade remedy proceeding is needed to comply with a WTO decision and existing law may be sufficient to carry out the action. While the URAA prohibits private rights of action based on Uruguay Round agreements, plaintiffs, in cases brought under other statutes, have argued that the agency actions they are challenging in court are inconsistent with a WTO agreement or a WTO decision and should conform with U.S. WTO obligations. Although courts have deemed WTO decisions to be persuasive, they have also held that they are not binding on the United States, U.S. agencies, or the judiciary, leaving the issue of whether and how the United States complies in a particular WTO proceeding to the executive branch. Legislation introduced in recent Congresses generally reflected congressional concerns that the WTO Appellate Body had interpreted WTO agreements in an overly broad manner to the detriment of the United States and that the executive branch had in some cases too readily used existing statutory authorities to comply with these decisions, particularly where U.S. trade remedies were involved. Legislation particularly focused on WTO decisions finding the U.S. use of “zeroing” in antidumping proceedings to be in violation of the WTO Antidumping Agreement and an administrative modification instituted by the Department of Commerce in original anti-dumping investigations in response to one of the earliest of these decisions. Under the practice, the department calculates dumping margins by taking into account only sales below fair market value—generally the price in the exporting country—and assigns a zero value to sales at or above this price. While it is argued that zeroing improperly creates or inflates dumping margins, U.S. courts have consistently upheld the department’s use of the practice as valid under U.S. antidumping law

Dispute Settlement Under the U.S.-Peru Trade Promotion Agreement: An Overview

[Excerpt] The U.S.-Peru Trade Promotion Agreement (PTPA) follows current U.S. free trade agreement (FTA) practice in containing two types of formal dispute settlement: (1) State-State, applicable to disputes between the Parties to the PTPA, and (2) investor-State, applicable to claims by an investor of one State Party against the other State Party for breach of a PTPA investment obligation. A defending Party in a State-State dispute found to be in violation of a PTPA obligation is generally expected to remove the complained-of measure; remedies for noncompliance include compensation and the suspension of PTPA concessions or obligations (e.g., the imposition of a tariff surcharge on the defending Party\u27s products), with the defending Party having the alternative of paying a fine to the prevailing Party or, in some cases, into a fund that may be used to assist the defending Party in complying with its obligations in the case. An investor-State tribunal may only make monetary awards to the claimant and thus may not direct a PTPA Party to withdraw or modify a violative measure. If the defending State Party does not comply with an award, the investor may seek to enforce it under one of the international conventions for the recognition and enforcement of arbitral awards to which the United States and Peru are party. State-State dispute settlement may also be initiated against the non-complying Party. The PTPA State-State dispute settlement mechanism differs from earlier U.S. FTAs in that it applies to all obligations contained in the labor and environmental chapters of the PTPA instead of only domestic labor or environmental law enforcement obligations. In addition, in the event a Party is found to be in breach of one of these obligations and has not complied in the dispute, the prevailing Party may impose trade sanctions instead of, as under earlier agreements, being limited to requesting that a fine be imposed on the non-complying Party with the funds to be expended for labor or environmental initiatives in that Party\u27s territory. The changes stem from a bipartisan agreement on trade policy between Congress and the Administration finalized on May 10, 2007 (May 10 agreement), setting out various provisions to be added to completed or substantially completed FTAs pending at the time. Among the aims of the agreement was to expand and further integrate labor and environmental obligations into the U.S. free trade agreement structure. The same approach to labor and environmental disputes is found in FTAs entered into with Colombia, Korea, and Panama, each of which continue to await congressional approval. Implementing legislation approving the PTPA and providing legislative authorities needed to carry it out was signed into law on December 14, 2007 (P.L. 110-138). The agreement entered into force on February 1, 2009. A protocol of amendment revising the PTPA to incorporate provisions involving labor, the environment, intellectual property, port services, and investment, as set out in the May 10 agreement, entered into force on the same day. To date, there have not been any disputes brought under either PTPA dispute settlement mechanism. In general, resort to panels under FTA State-State dispute settlement has been uncommon, and thus there has been relatively little experience with the operation of this mechanism over a range of agreements and issues. FTA investor-State claims have been filed under the North American Free Trade Agreement (NAFTA) against each of the three agreement Parties. Four claims have been filed by U.S. investors under the Dominican Republic - Central America - United States Free Trade Agreement (DR-CAFTA), one against the Dominican Republic, two against El Salvador, and one against Guatemala. To date, no investor-State claims have been filed under other U.S. FTAs

Dispute Settlement in the Proposed U.S.-South Korea Free Trade Agreement (KORUS FTA)

[Excerpt] The KORUS FTA State-State dispute settlement mechanism differs from most earlier U.S. FTAs in that it applies to all obligations contained in the labor and environmental chapters of the KORUS FTA instead of only domestic labor or environmental law enforcement obligations. In addition, in the event a Party is found to be in breach of one of these obligations and has not complied, the prevailing Party may impose trade sanctions instead of, as under earlier agreements, being limited to requesting that a fine be imposed on the non-complying Party with the funds to be expended for labor or environmental initiatives in that Party’s territory. The changes stem from a bipartisan understanding on trade policy between congressional leaders and the George W. Bush Administration finalized on May 10, 2007, setting out provisions that were to be added to completed or substantially completed FTAs pending at the time. Among the aims of the understanding was to expand and further integrate labor and environmental obligations into the U.S. FTA structure. The same approach to labor and environmental disputes is found in FTAs entered into with Colombia and Panama, each of which continue to await congressional approval,and in the U.S.-Peru Trade Promotion Agreement, which entered into force in 2009

Dispute Settlement in the World Trade Organization (WTO): An Overview

[Excerpt] Dispute settlement in the World Trade Organization (WTO) is carried out under the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). In effect since January 1995, the DSU provides for consultations between disputing parties, panels and appeals, and possible retaliation if a defending party fails to comply with a WTO decision by an established deadline. Automatic establishment of panels, adoption of panel and appellate reports, and authorization of requests to retaliate, along with deadlines and improved multilateral oversight of compliance, are aimed at producing a more expeditious and effective system than had existed under the General Agreement on Tariffs and Trade (GATT). To date, 405 complaints have been filed, approximately half involving the United States as complainant or defendant. Expressing dissatisfaction with WTO dispute settlement results in the trade remedy area, Congress, in the Trade Act of 2002, directed the executive branch to address dispute settlement in WTO negotiations. WTO Members have been negotiating DSU revisions in the currently stalled Doha Development Round of trade negotiations but no final agreement on the DSU has been reached. Use of the DSU has revealed procedural gaps, particularly affecting the compliance phase of a dispute. These include a failure to coordinate procedures for requesting retaliation with procedures for tasking a WTO panel with determining whether a defending Member has complied in a case and the absence of a procedure for withdrawing trade sanctions imposed by a complaining Member where the defending Member believes it has fulfilled its WTO obligations. As a result, disputing Members have entered into bilateral agreements permitting retaliation and compliance panel processes to progress on an agreed schedule and have initiated new dispute proceedings aimed at removing retaliatory measures. Where a U.S. law or regulation is at issue in a WTO case, the adoption by the WTO of a panel or Appellate Body report finding that the measure violates a WTO agreement does not give the report direct legal effect in this country; thus federal law is not affected until Congress or the executive branch, as the case may be, takes action to remove the offending measure. Where a restrictive foreign trade practice is at issue, Section 301 of the Trade Act of 1974 provides a mechanism by which the United States Trade Representative (USTR) may challenge the measure in a WTO dispute settlement proceeding and authorizes the USTR to take retaliatory action if the defending Member has not complied with the resulting WTO decision. Although Section 301 was challenged in the WTO on the ground that it requires the USTR to act unilaterally in WTO-related trade disputes in violation of DSU provisions requiring resort to multilateral WTO dispute settlement, the United States was ultimately found not to be in violation of its DSU obligations. H.R. 496 (Rangel) would create an Office of the Congressional Trade Enforcer that would, inter alia, investigate restrictive foreign trade practices in light of WTO obligations and call on the USTR to pursue WTO cases where alleged violations are found; express congressional dissatisfaction with WTO decisions; and restrict implementation of a revised methodology for calculating dumping margins adopted by the Commerce Department in 2007 in response to adverse WTO decisions. S. 363 (Snowe) would grant the U.S. Court of International Trade exclusive jurisdiction to review de novo certain USTR determinations under Section 301 of the Trade Act of 1974, which may in some cases involve the initiation and conduct of WTO disputes, and would amend various Section 301 authorities themselves. S. 1466 (Stabenow) and S. 1982 (Brown) would establish mechanisms under the Trade Act of 1974 requiring the USTR to identify particularly harmful foreign trade practices and, where appropriate, to initiate WTO cases to remedy these practices

WTO Dispute Settlement: Status of U.S. Compliance in Pending Cases

This report discusses the details of fourteen World Trade Organization (WTO) disputes in which rulings have not yet been implemented or in which the United States has acted and the dispute has not been fully resolved. The cases include disputes regarding trade remedies, antidumping, aircraft subsidies, cotton subsidies, online gambling restrictions, music copyright law, and trademark infringement

Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than as Treaties

Trade agreements such asthe NAFTA and the GATT Uruguay Round agreements have been approved by majority vote of each House of Congress rather than by twothirds vote of the Senate — that is, they have been treated as congressional-executive agreements rather than astreaties. The congressional-executive agreement has been the vehicle for implementingCongress' long-standing policy ofseeking trade benefitsfor the United States through reciprocal trade negotiations. In a succession of statutes, Congress has authorized the President to negotiate and enter into tariff and nontariff barrier (NTB) agreements for limited periods, while mandating that NTB and free trade area agreements negotiated under this authority could enter into force for the United States only if approved by both Houses in a bill enacted into public law and other statutory conditions were met

Encryption Export Controls

This report discusses encryption export controls, beginning with background on the development and use of encryption, and continuing with a description of export controls imposed under the Arms Export Control Act (AECA) and the Export Administration Act (EAA); a discussion of recent federal court rulings in First Amendment challenges to AECA and EAA regulations; and a summary of 106th Congress legislation aimed at liberalizing law and policy affecting encryption exports

Dispute Settlement in the Proposed U.S.-South Korea Free Trade Agreement (KORUS FTA)

The proposed U.S.-South Korea Free Trade Agreement (KORUS FTA) follows current U.S. free trade agreement (FTA) practice in containing two types of formal dispute settlement: (1) State- State, applicable to disputes between the KORUS FTA Parties, and (2) investor-State, applicable to claims by an investor of one KORUS FTA Party against the other Party for breach of an agreement investment obligation

WTO Dispute Settlement: Status of U.S. Compliance in Pending Cases

This report provides a summary of the status of U.S. compliance efforts in pending World Trade Organization (WTO) disputes that have resulted in adverse rulings against the United States. The report begins with an overview of WTO dispute settlement procedures, focusing on the compliance phase of the process, followed by a discussion of U.S. laws relating to WTO dispute proceedings. The report then lists pending WTO disputes in the compliance phase, with a brief discussion of major issues and the U.S. compliance history in each