Tag: US

  • US-China Trade Tensions: What may these mean for the Caribbean?

    US-China Trade Tensions: What may these mean for the Caribbean?

    Alicia Nicholls

    On-going trade tensions between the United States of America (US) and China reached a new low point last week. Beijing cancelled upcoming trade talks with Washington in the wake of US President Donald Trump’s announcement of tariffs on a further $200 billion dollars’ worth of Chinese imports, starting September 24th. The Chinese government announced that it will retaliate with tariffs on a further US$60 billion dollars’ worth of US imports.

    US-China relations have had turbulent periods throughout the years, but the Trump Presidency has taken a markedly more aggressive stance to Beijing’s purported unfair trade practices which the US President blames for China’s large merchandise trade surplus with the US, estimated to be US$375 billion in 2017.

    With the US as the Caribbean region’s main trading partner and China, a growing economic presence in the region, will the Caribbean be caught in the middle of this spat between the world’s two largest economic superpowers? And is there anyway in which the region could possibly benefit?

    China-Caribbean Relations

    It must first be noted that Caribbean countries’ policy towards the recognition of either the People’s Republic of China (PRC) or the Republic of China (ROC – Taiwan) is fragmented. Five (Belize, Haiti, St. Kitts & Nevis, St. Vincent & the Grenadines and St. Lucia) out of fifteen Caribbean Community (CARICOM) member States still recognise Taiwan as a sovereign State. Moreover, it was only this week that China opened an embassy in the Dominican Republic after that country severed ties with Taiwan earlier. As such, not all Caribbean countries have diplomatic or economic ties with the PRC, but the majority do.

    In the midst of declining US presence in the Caribbean, Beijing has sought to fill the void through mainly bilateral engagement with individual Caribbean governments. China has become an increasingly important source of foreign direct investment, government loans, and development aid and cooperation. A growing number of infrastructure projects throughout the region have been built with Chinese funding and labour. The Chinese Government has also long provided generous government scholarships to Caribbean nationals whose countries recognize the PRC.

    China-Caribbean trade flows have increased and China has widened its trade surplus with the region. According to Ambassador Dr. Richard L. Bernal in his insightful book “Dragon in the Caribbean”, while Caribbean countries’ imports from China have grown “substantially and rapidly”, Caribbean exports to China have increased, but not nearly in as robust a manner. The Chinese Ambassador to Barbados has been reported as stating last week that in “the first six months of this year trade volume between Bridgetown and Beijing reached US$79.8 million”, a rapid increase.

    US-Caribbean Relations

    While China’s deepened economic engagement with the Caribbean is relatively recent, US-Caribbean relations with the region it considers its “backyard” or “third border” are longstanding, dating back to colonial times. The US is not just the region’s largest trading partner, but since the late 1980s many Caribbean countries have benefited from duty-free, quota-free access for most goods to the US market under the Caribbean Basin Initiative, a non-reciprocal goods-only preferences programme.

    The US is the major source market for Caribbean tourist arrivals, with the Caribbean Tourism Organisation reporting an estimated 14.9 million US arrivals to the region in 2017. US-Caribbean ties also manifest through the relatively large Caribbean-American diaspora which numbers approximately four million. The US is also a major (though declining) provider of foreign assistance to the Caribbean, and the Trump Administration has sought to scale back its assistance even further.

    However, the Caribbean region’s geopolitical significance to Washington has diminished since the end of the Cold War, and so has the level of development assistance in recent years. The US-Caribbean Strategic Engagement Act, which had bi-partisan congressional support, was passed in 2016 and signed into law under the then Obama administration as Washington’s attempt to re-engage with the Region. A multi-year Strategy, as required under the Act, was published in 2017.

    So, what may US-China trade tensions mean for the Caribbean?

    It is still too early to tell whether there will or has been any economic fall-out from the US-China tariff war so far on Caribbean economies. Most Caribbean countries are services-dependent making them generally more insulated from direct fall-out from the tariff hikes on global goods supply chains. Commodities-based economies, however, might suffer from softening commodities prices due to reduced Chinese demand.

    President Trump’s calculation may be that a trade war would be more damaging to China’s economy than to the US since it exports more to the US than viceversa. This gives Beijing less American imports on which it could levy tariffs. An already slowing Chinese economy would be further weakened by reduced American demand for its products.

    One possible negative consequence of any severe downturn in the Chinese economy may be a reduction in Beijing’s economic largesse in the region. But, the US economy may not be immune either. Though the US economy grew 4.2% in the last quarter and unemployment is low, these fortunes could be reversed due to Washington’s erratic trade policy and recent tax cuts. American farmers in key states are already warning about the possible impact of the tariff hikes. A downturn in the US economy could have a ripple effect on Caribbean economies, especially those dependent on US tourist arrivals. It is also worth pointing out that China is the US’ largest creditor, with a stockpile of over US$1 trillion worth of US Treasury securities. Beijing may see this as a source of leverage in this economic war, but a mass sell-off by China of its US debt could also backfire.

    Another possible channel of impact for Caribbean countries could be in the financial markets. Spooked by these trade tensions, investors may revert to less risky investment options, which may make bonds issued by emerging economies, like those in the Caribbean, less attractive, and also affect currency markets. Additionally, any downturn in the global economy precipitated by softening global demand due to the rising trade tensions and reduced investor confidence could have a ripple effect on the small open economies of the Caribbean. In its recently released Interim Economic outlook, the OECD warned that new restrictive trade measures were already impacting global trade flows, resulting in a slowdown in global trade volume growth in the first half of 2018.

    An upside to the US-China trade tensions, and this may already be playing out, is that Chinese exporters, faced with these high tariffs in the US market, will be looking at alternative markets for their goods. In light of Washington’s anti-China stance, Chinese firms may also seek out more investment-friendly climates in which to invest. In this case, the Caribbean also hypothetically stands to benefit.

    It should be noted as well that China increasingly sees itself as having similar interests to the Caribbean, and also as an ally to the region in multilateral fora. This week the Chinese government noted that it plans to step up its multilateral cooperation with the Caribbean Community (CARICOM), to help protect the integrity of multilateral institutions which have been increasingly under attack from the current unilateral stance taken by the Trump administration. WTO reform is one area in which China and the Caribbean could potentially collaborate, although China’s status as a developing country is one of the sore points for some WTO members, including the US.

    There may also be greater opportunities for Caribbean countries to meaningfully increase exports to China. However, this is easier said than done. Caribbean firms looking to export to, or invest in China, will need to overcome barriers to market access and penetration, which are not just legal/regulatory in the form of non-tariff barriers, but also linguistic and cultural.

    One way in which these barriers may be mitigated is by tapping into those persons who have knowledge of the Chinese market and culture. A growing number of Caribbean nationals have benefited from Chinese government scholarships. These persons not only speak the language, but know the culture and may have built up lasting contacts there. They could be employed as trade and investment liaisons in their countries’ diplomatic missions in China and their expertise used during trade shows to China. Local chambers of commerce, trade and investment promotion agencies, and individual firms looking to scope out the Chinese market, should also view these persons as useful sources of insights on the Chinese market and sources of contacts for exploring possible joint ventures and partnerships as market entry strategies.

    Notwithstanding, it is still too early to state definitively what impact the current US-China trade tensions will have for the Caribbean region. As such, Caribbean leaders and the business community should continue to monitor the situation closely, looking for ways to mitigate any possible channels of impact, but also areas where opportunities may arise.

    Alicia Nicholls, B.Sc., M.Sc., LL.B., is an international trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

  • President Trump’s Trade Policy Agenda for 2017 Released

    President Trump’s Trade Policy Agenda for 2017 Released

    Alicia Nicholls

    The Office of the United States’ Trade Representative (USTR) today released a preliminary report outlining President Trump’s Trade Policy Agenda for 2017.  It should be noted that this is a preliminary report prepared in order to comply with the statutory deadline for the report’s annual release March 1, but bearing in mind that President Trump’s nominee for USTR, experienced trade lawyer and former deputy USTR under former President Ronald Reagan, Robert Lighthizer, has not yet been confirmed by the Senate. As such, it has been noted in the report that  a more detailed version will be published once the USTR has been confirmed and has had the opportunity to provide input in that report’s development.

    As stated in the report, President Trump sees bipartisan support by the American people for a complete overhaul of US trade policy. In order to effect this, the report states that the overarching purpose of the Trumpian trade policy “will be to expand trade in a way that is freer and fairer for all Americans”.

    To this effect, the report outlines four priorities identified by the Administration:

    (1) defend U.S. national sovereignty over trade policy;

    (2) strictly enforce U.S. trade laws;

    (3) use all possible sources of leverage to encourage other countries to open their markets to U.S. exports of goods and services, and provide adequate and effective protection and enforcement of U.S. intellectual property rights; and

    (4) negotiate new and better trade deals with countries in key markets around the world.”

    Several preliminary things stand out from the report:

    (1) The report highlighted that the US is not bound by WTO decisions and evinces a policy stance going forward not to accept any adverse rulings from the WTO. The paragraph below taken directly from the report is instructive:

    “And, when the WTO adopts interpretations of WTO agreements that undermine the ability of the United States and other WTO Members to respond effectively to these real world unfair trade practices with remedies expressly allowed under WTO rules, those interpretations undermine confidence in the trading system. None of these outcomes is in the interest of the United States or a healthy global economy.”

    This is coupled with what appears to be the Trump administration’s plans to make greater use of unilateral remedies.

    US disregard for adverse WTO rulings is a troubling prospect for many reasons, but particularly for small island states’ enforcement of their trade interests. It should be noted that the Caribbean island state of Antigua & Barbuda is still awaiting compensation from the US, after many years, since winning the US-Gambling dispute. It remains to be seen whether this will ever be resolved.

    (2) Based on the arguments made in this report, I think it likely that Trump’s team will advocate for changes to be made to the WTO’s dispute settlement mechanism for their own interest.

    (3) The Administration has stated its intention to not only more aggressively go after countries the US deems to be “engaging in unfair trade practices”, but will also with equal zeal go after countries which do not sufficiently open their markets to US exports. As mentioned previously, the pursuit of countries’ trading practices which are perceived to be inimical to US interests is not new and has been US policy for years. The singling out of China in this regard came as no surprise.

    (4) The Trump administration’s criterion for whether a trade agreement is bad or good appears to be based solely on whether the US has a trade (merchandise) deficit with the country in question. This is not just a facile way of assessing the merits of a trade agreement, but also ignores services trade and investment which in many cases the US has a surplus with its trading partners.

    (5) While there are references to “free and fairer trade” throughout the report, I believe the term “zero sum” trade may be the more appropriate term to describe these proposals.

    The full report may be viewed here.

    Alicia Nicholls, B.Sc., M.Sc., LL.B., is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

     

  • US eases some restrictions on Cuban imports for personal use

    US eases some restrictions on Cuban imports for personal use

    Alicia Nicholls

    On October 14, 2016 the United States Department of Treasury’s Office of Foreign Assets Control (OFAC) and the Department of Commerce’s Bureau of Industry and Security (BIS) announced further amendments to the Cuba Sanctions Regulations. These changes became effective today (October 17, 2016) and include not just an ease on restrictions of Cuban imports, including alcohol and cigars, for personal use, but also facilitation of joint Cuba-US medical research and a variety of other trade measures.

    Since the early 1960s, successive US governments have imposed an illegal economic, commercial and financial embargo on Cuba which is not only contrary to international law but has hindered the country’s economy development. In December 2014 US President Barack Obama outlined a new direction to normalise Cuba-US relations. Efforts at normalisation since 2014 have included, inter alia, the removal of Cuba from the US State Sponsors of Terrorism List in May 2015, the re-opening of embassies in July 2015 and the progressive relaxation of some sanctions.

    However, US congressional action is needed to reverse the embargo. The embargo has been widely condemned by the international community. On October 26th, the UN General Assembly will be called on for the 25th consecutive year to vote on a Cuba-introduced resolution calling for an end to the five-decade long embargo.

    Current Amendments to Cuba Sanctions Programme 

    The current tranche of amendments to the Cuban Assets Control Regulations (CACR) and the Export Administration Regulations (EAR) cover the following three broad areas:

    • Expanding opportunities for scientific collaboration and access to medical innovations
    • Facilitate increased humanitarian support, grant opportunities and improve Cuban infrastructure
    • Bolster trade and commercial activities and the growth of Cuba’s private sector

    Some of the specific amendments are as follows:

    • Authorisation of joint-medical research with Cuban nationals for non-commercial and commercial research
    • Importation , marketing, sale and distribution in the US of FDA-approved Cuba-origin pharmaceuticals
    • Persons who engage in those above activities will be allowed to open and maintain bank accounts in Cuba for use in conducting authorised business
    • Authorisation of grants, scholarships and awards to Cuba or Cuban nationals for scientific research and religious activities
    • Authorisation of persons subject to US jurisdiction to provide services to Cuba or Cuban nationals relating to developing, repairing, maintaining and enhancing certain Cuban infrastructure to directly benefit the Cuban people
    • Removal of monetary value limitations on what authorised travelers may import from Cuba into the US as accompanied luggage. These include Cuban alcohol and cigars. However, the imports must be for personal use and normal limits on duty and tax exemptions will apply.
    • BIS will generally authorise exports of certain consumer goods that are sold online or through other means directly to eligible individuals in Cuba for their personal use
    • Expanded general license by OFAC authorising persons subject to US jurisdiction to enter into certain contingent contracts for transactions currently prohibited by the embargo, subject to conditions.
    • OFAC authorisation of importation into the US or a third country of items previously exported or re-exported to Cuba under a BIS or OFAC authorisation

    Comprehensive information on all of the amendments may be obtained via the US Treasury Department’s website here.

     Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

  • Antigua, Are you ready to Gamble?

    Antigua, Are you ready to Gamble?

    Javier Spencer, Guest Contributor 

    Javier

    Did you know that in 2000, the Antigua and Barbuda’s Online Gaming Industry accounted for 61% of the Global Online Industry?(Global Betting and Gambling Consultants, 2007) This figure declined in 2001 onwards as the United States introduced statutes that limited Antigua’s supply of online gambling services in the US.

    The clock has been ticking and the Government of Antigua and Barbuda (Antigua) has now decided to take the necessary actions to retaliate against the United States (US) in its long-simmering case at the World Trade Organization (WTO) (See US Gambling DS285). The US Gambling case is the first case of its kind brought to the WTO in respect of interpreting and applying member states’ commitments under the General Agreement on Trade in Services (GATS). The GATS is a WTO Agreement that emanated from the Uruguay Round of negotiations in January 1995 and much like the General Agreement on Tariffs and Trade (GATT), the GATS’ remit is to substantially reduce barriers to trade within the services sector based on principles of Most Favoured Nation (MFN) and National Treatment (NT).

    Background & WTO Findings

    Antigua in 2003 filed a complaint to the WTO to challenge domestic legislation in the US that have significantly restricted the ability for service providers of Gambling and betting services in Antigua, to offer their services to customers in the US. The statutes brought into question were: ‘The Wire Act’, ‘The Travel Act’, and the ‘Illegal Gambling Business Act’; all of which Antigua claimed were de facto discriminatory and therefore in breach of the US’ market access commitments (Article XVI (I) GATS). In response, however, the US claimed that it had never made specific GATS commitments on the cross border supply of gambling services and further iterated that the statutes were passed with the main objective of protecting public morals and maintaining public order (Article XIV (a)).

     Much to the surprise of the US, a WTO panel ruled in favour of Antigua in 2004. This ruling was upheld by the Appellate Body in 2005 on the US’ appeal. The ruling found that regardless of the US’ intent to “protect public morals or to maintain public order” the US indeed made specific GATS commitment in respect of the supply of gambling services. Against the backdrop of the chapeau of Article XIV, the US failed to demonstrate that the pieces of legislation did not constitute “arbitrary and unjustifiable discrimination” in respect of the supply of online gaming.

     The US was given the deadline of until April 2006 to amend its legislation to be consistent with WTO law (DSU Article 21.5). Years later, the US has failed to comply with the ruling which prompted Antigua to file an enforcement case at the WTO. Fast forward to 2016 and the U.S. has still failed to comply with the WTO ruling. Therefore the Government of Antigua has recently announced its intention to implement remedies authorised by the WTO.

      The Remedy – Cross Retaliation

    In light of the US’ failure to bring its laws in compliance with WTO law, Antigua requested permission to retaliate against the US by suspending obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TRIPS Agreement is another result of the Uruguay Round of negotiations which seeks to “promote effective and adequate protection of intellectual property rights”. Ultimately, of course, the agreement regulates intellectual property rights (IPRs) in a manner that eliminates or reduces any barriers to trade.

    Further to Antigua’s request, the WTO granted Antigua (as a compensatory measure) the authorization to retaliate in January 2013. This means that Antigua could withdraw US $21 million worth of concessions in IPRs held by US firms, per annum. This cross retaliation strategy has proven to be the best strategy in getting a developed country to comply with WTO rulings. As a precedent, the WTO granted Ecuador the rights to suspend IPR concession against the European Communities (EC) in EC- Bananas III (See DS27). In the final analysis, Ecuador never suspended its TRIPS obligations, but used it as leverage to quickly negotiate with the EC on a mutually agreed solution. This case signals that suspending IPRs as a retaliatory measure gives developing countries a strengthened negotiating position that will serve as an impetus for the developed country to comply or to quickly negotiate a mutually agreeable settlement.

    For Antigua, the cross-retaliation remedy could redound to the greater good of its citizens. For example, pharmaceuticals could be legally produced and distributed in Antigua to fight diseases without paying the remunerations otherwise required under TRIPS.

    However, a closer look at the suspension of TRIPS obligations yearns a pertinent question. Does Antigua possess the clout and capacity to retaliate using this method? In order for this remedy to secure a great impact on the U.S., firms in Antigua ought to demonstrate that they have technological capacity for (large scale) domestic production of copies of IPR goods from the U.S. This example is further exacerbated if Antigua’s import of IP goods and services from the U.S. is insignificant.

    The suspension of IPRs held by US firms is confined to the borders of Antigua and Barbuda which means that goods that would have been created under the TRIPS suspension regime cannot be exported out of Antigua to any other WTO country. At this juncture, a careful examination of the ‘first sale doctrine’ or ‘international exhaustion’ should be applied.

    Additionally, Antigua ought to guard against the risk associated with the authorization to retaliate. For instance, suspending TRIPS obligations may cause Antigua to violate its obligations under the Berne Convention and the Paris Convention. Secondly, the authorisation to suspend TRIPS obligations is only temporary in nature (Article 22.8 DSU), although the authorization set out by the DSB has no time limit to implement. However the broader picture portends that Antigua could only suspend TRIPS obligations until the US has removed or amend laws to become WTO consistent. In this regard, Antigua ought to be mindful of new industries that could emanate from this suspension as it would be highly susceptible to a quick change in US laws. Furthermore, Antigua’s preferences under the Caribbean Basin Economic Recovery Act (CBERA) could be negatively affected as one of the criteria is respect for IPRs.

    Conclusion

    The US Gambling case is a peculiar case where a WTO ruling has been in favour of the developing country’s complaint against the developed country. In such cases, the authorization of TRIPS obligations as a strategy for a developed country to comply could be highly flawed and wreaks greater havoc for the developing country.  Antigua’s retaliation, as case in point, could be ineffective whereas in comparison to the effect that the US statutes had on the Antiguan economy. There are many risks involved in respect of being in breach of other international treaties. Ultimately, however, the measure is meaningless if developing countries do not have the capacity to implement such an authorization.

    After a keen assessment of the economic and political risks associated, what other cards are left for Antigua to play? Perhaps Antigua could consider transferring its rights to suspend its TRIPS obligations to another WTO Member State who has the capacity and the clout to successfully implement such a regime. The uncertainty of the outcome is high as there is no precedent of a developing country who has successfully cross-retaliated through a suspension of their TRIPS obligations. This is truly a gamble and Antigua, are you ready?

    Javier Spencer, B.Sc., M.Sc., is an International Business & Trade Professional with a B.Sc. in International Business and a M.Sc. in International Trade Policy. His professional interests include Regional Integration, International Business, Global Diplomacy and International Trade & Development. He may be contacted at javier.spencer at gmail.com.