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Instant Insights / Turbulent Trade Policy Requires Nimble Lawyering

The current trade climate demands that lawyers get current on the latest developments and what they mean to their clients and practices. In this Instant Insights, we explore the shifting trade landscape and its impact on substantive law and the legal profession.

Commentary

Lessons From Recent Developments on US-China Trade

With the threat of a veto for any restriction on presidential power, it appears unlikely that the trade war will be resolved legislatively. Nor is a judicial stop to the escalation likely.

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US China Trade War

The push-pull of U.S.-China trade relations has continued over the past month. While both Congress and the president have moderated some earlier stances on Chinese investment in the United States, the president has also made new threats to impose tariffs on the full range of imports from China. Congressional opposition to tariffs has gained momentum, but without a must-pass legislative vehicle—and with the threat of a veto—passage of proposed legislation is unlikely. In the meantime, legal challenges to recent tariffs are proceeding before the Court of International Trade and the World Trade Organization, but with limited prospects to alter policy in the near term. In sum, although both Congress and the administration have been willing to shift some prior positions on Chinese investment and trade in response to business concerns, larger trade disputes continue to escalate and are unlikely to be resolved legislatively or judicially.

FIRRMA Legislation—A Substantial Expansion but Less Sweeping Than Its Original Form

On Monday, Aug. 11, President Donald Trump signed the National Defense Authorization Act for fiscal year 2019 (NDAA) into law. That legislation includes the Foreign Investment Risk Review Modernization Act (FIRRMA), which expands the jurisdiction of the Committee on Foreign Investment in the United States to review foreign investment in U.S. businesses, as well as the Export Control Reform Act of 2018, which provides a permanent statutory basis for existing export controls on dual-use items and creates a new process to establish controls on “emerging or foundational technologies” that are critical to U.S. national security.  

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