Riyaz Dattu, Margaret Kim
May 18, 2017
Our last international trade brief dealt with SCOTUS rejecting an expropriation claim and the alternate process of seeking compensation using bilateral investment treaties to avoid sovereign immunity defences, dispute settlement and key improvements in the CFTA government procurement rules, and a Trade Case Alert discussing Boeing launching a trade remedies petition against Bombardier. In this brief, in several articles, we discuss Robert Lighthizer’s confirmation as U.S. Trade Representative, Chinese semiconductors potentially becoming the target of a U.S. national security probe, and our Trade Case Alert involving a Canadian anti-dumping and countervailing investigation for silicon metal.
On Monday, May 15, 2017, Robert Lighthizer was sworn in as U.S. Trade Representative (USTR), after the U.S. Senate confirmed his nomination by President Donald Trump, following a long process which lasted four months.
Lighthizer is a veteran international trade lawyer, with over three decades of experience in both private practice at a prominent U.S. law firm and the government, where he served as chief counsel and staff director for the Senate Finance Committee, and Deputy USTR during the Reagan administration. While Lighthizer is well known as a zealous advocate for the U.S. domestic interests —including representing the U.S. steel industry— his confirmation was partly delayed due to having to receive a Congressional waiver for previously representing foreign states. U.S. law prohibits USTR candidates from working on behalf of foreign governments; in his private practice, Lighthizer represented the Government of Brazil in a 1985 ethanol-imports trade dispute and the China Chamber of Commerce in relation to machinery and electronics.
As the final Cabinet-level official to be confirmed in the Trump administration, Lighthizer is expected to advance the following trade agenda items with full vigour:
- NAFTA renegotiation with Canada and Mexico: Lighthizer is expected to revise the Trump administration’s draft notice to Congress by engaging in consultations with Congressional advisory groups to get to a final version of the notice. That final notice is expected to be sent to Congress the week of May 22, which would trigger the renegotiation process as early as the end of August. Lighthizer will also have to confirm whether the Trump administration intends to pursue a bilateral or trilateral approach in the NAFTA trade talks. Thereafter President Trump will officially notify his intent to begin discussions with Canada and Mexico.
- Aggressive trade enforcement: As noted in our previous brief, Lighthizer has expressed his commitment to engage in a greater number of trade enforcement actions, guided by the Trump administration’s “America First” strategy. He has stated that he would bring as many trade enforcement actions as can be justified under the World Trade Organization rules, bilateral trade agreements, and U.S. trade remedy laws. This “hardline” approach is already apparent from the Trump administration’s self-initiated investigations into steel and aluminum, and the possible investigation into semiconductor imports, based on a rarely used provision related to protection of national security.
- Post-TPP withdrawal trade discussions: Lighthizer will be attending the two-day Asia-Pacific Economic Cooperation (APEC) trade ministers’ meeting in Vietnam on May 21-22. In light of the U.S.’s withdrawal from the Trans-Pacific Partnership (TPP) in January following a Presidential executive order, and having failed to participate through ministerial representation at the March TPP Chile Summit, it is expected that Lighthizer’s engagement will be limited to bilateral discussions.