US Trade Policy, China and the World Trade Organisation

Nerina Boschiero is Professor of International Law. She has been the Dean of Faculty of Law at the University of Milan (2014-2021), where she teaches International Law, Private International Law and International Sustainable Development Law. She activated a new international programme (LLM in Sustainable Development) entirely taught in English, and a new PHD (truly international) on Law, Ethics, and Economics on Sustainability

It is with great pleasure that I sign this endorsement of mine to the very fine volume of professor Nerina Boschiero of the University of Milan, Italy, Law School, on "US Trade Policy, China and the WTO".This is not only an excellent, well researched and balanced work, it is also a very timely volume. In the wake of the Covid-19 pandemic, and against the background of the uncertainty surrounding the future of the WTO, a legal analysis of the US trade policies straddling over the last two administrations, and their implications on the lasting trade tensions among major economic powers, is more salient than ever. The WTO cannot flourish without the active participation and support of countries such as the USA and China, but the same States cannot thrive by pursuing unilateral trade policies. This well-crafted book puts the spotlight on distinct topics such as the recent US measures against China under US Sections 232 and 301; the relationships between the Trump and Biden administrations’ trade policies with the ongoing crisis of the WTO dispute settlement system; the very nature of the security exception provision under GATT Article XXI. The rigor of the legal analysis proposed is admirable, especially when one considers that the book was conceived and finalized over years of dramatic changes in international relations. Professor Boschiero’ s outstanding and comprehensive book will be of interest to a broad audience, including international law scholars, practitioners, postgraduate students, as well as domestic civil servants (attached e.g., to national foreign ministries or trade departments); civil servants of international or regional organizations (e.g., at the level of the WTO, or the EU); and NGO experts (especially those focusing on trade implications on human rights).Sincerely Emeritus Professor Giorgio SacerdotiProfessor of International lawFormer Chairman of the Appellate BodyDuring the last six years a revolution has occurred in international trade politics and law. The United States is at the center, especially concerning US relations with China. COVID19 has also complicated matters as has the war in Ukraine. Professor Boschiero, courageously in my view, has written a manuscript that details this revolution in trade law and globalization. She gives a first view of these developments. No other author to my knowledge has attempted to relate this story. Professor Boschiero in her manuscript both recounts the great changes of the past six years, she also analyzes these developments with a critical eye. Her book is a valuable piece of work that should appeal to a broad audience, which includes everyone interested in international trade and globalization.Thomas J. Schoenbaum, University of Washington School of Law

• Chapter 1: The US Trade Policy Straddling Two PresidenciesSection 1: A Brief Summary of US Trade Policy under President Donald TrumpIntroduction…………………………………………………………………………………….1.1 The Extensive Recourse to (Unilateral) Trade Tariffs……………………………………..1.2 The Trade War with China………………………………………………………………..1.3 The Relationship with WTO and its Dispute Resolution System………………………….1.4 The National Security’s Narrative…………………………………………………………1.5 The Attitude Towards Preferential Trade Agreements……………………………………Section 2: President Biden’s 2021 Trade Agenda: Will it Really Change Course? Rescuing US Foreign Policy After Trump in Specific Areas, to Meet Global Challenges.. 2.2 A Foreign Policy for the Middle Class: The Trump’s Protectionist Policies Are Here to Stay?............................................................................................................................... The Biden’s Worker Centric Trade Policy…………………………………………… Addressing China’s ‘Coercive and Unfair Economic Trade Practices’ Through a Comprehensive Strategy………………………………………………………………… Partnering with Friends and Allies to Repair Partnerships and Alliances: But… Mainly for Holding China to Account…………………………………………………………. Tariffs: Any Possibility of Their De-escalation and/or Removal?................................. Biden and the WTO…………………………………………………………………… The so-called "US National Security Concerns" ………………………………… Chapter 2: The Recent Shift in the American Trade Policy Agenda Towards Unilateralism 2.1 The US Unilateral Tariffs on Steel and Aluminium under Section 232 of the 1962 Trade Expansion Act and their Impact on Multilateral Trade Rules………………………………2. 2 The Tit for Tat Retaliatory Actions Taken by the WTO Members Affected by the US’s Unilateral Tariffs. The Problem of their Characterization as "Safeguard Measures in Disguise"……………………………………………………………………………………………….. 2.3 The Section 301 of the 1974 Trade Act and the Sanctions against China……………….. 2.4 The Complex Legal Relationship between the WTO Dispute Settlement System and Section 301 Investigations Against China. The US- China Litigations……………………….2.5 The 2019 "Phase One" US-China Agreement. Any Possibility for a "Phase Two"?..........Chapter 3: The Economic and Legal Reasons Underlying the US-China Rivalry and the Consequences for the WTO System3.1 The (Unconvincing) US’ Trade Economic Reasons……………………………………3.2 The Reasons Associated with the Chinese Economic Growth…………………………… 3.3 The Problem of China’s Special and Differential Treatment as a "Developing Country"…………………………………………………………………………………….3.4 The US Protectionist Strategy in the Antidumping Cases Against China in the Light of the Complex Problem of its "Market Economy" Status………………………………………3.5 The Trade-Distorting Role of Subsidies Conferred to Chinese State-Owned Enterprises (SOEs)………………………………………………………………………………………3.6 The Ongoing Controversy about the Legal Concept of "Public Body" under the SCM Agreement…………………………………………………………………………………….. 3.7 The Innovative Provisions Contained in the Most Recent Regional and Preferential Trade Agreements: Any Best Way to Deal with China?.......................................................3.8 The Missing Point: The New (Necessary) Role of Governmental Intervention and Involvement in the Current Health and Economic Crisis……………………………………..Chapter 4: The Overall Impact on the New US Trade Agenda on the WTO Dispute Settlement System Introduction…………………………………………………………………………………….4.1 A Brief Analysis of the Major Reasons of US’s Discontent about the AB………………,4.2 International Bodies’ Interpretation of WTO Law versus National Sovereignty…………4.3 The Alleged AB "Judicial Activism" in the Interpretation of the WTO Rules…………..4.4 The Problem of AB Reports as "Binding Precedents"…………………………………….4.5 The Problem of Gap-filling Activities by the WTO Dispute Settlement System, Especially in Sensitive Area of US’s Concerns……………………………………………….4.6 How to Better Reconcile the Need of a Compulsory, Impartial and Enforceable Dispute Settlement Mechanism with the US Request of Higher Degree of Control and Political Checks on Adjudicative Outcomes………………………… 4.7 The European’s Reaction to the Impasse of the WTO Settlement Mechanism: the EU’s Interim Appeals System (MPIA) …………………………………..4.8 The New EU Enforcement Regulation and Its Compliance with Public International LawChapter 5: The US Section 232 Actions as National Security Measures. a New Era for WTO Security Exceptions ? 5.1 The US’s Counterclaim in the Light of the Negotiating History and Historical Interpretation of the Security Exception under Article XXI GATT………… 5.2 The "Self-judging" Nature of Security Exception in Previous Adjudications of Other International Law Fora (International Court of Justice and International Investment Arbitrations) ………………………………………………………………………………5.3 The Very First Interpretation of Article XXI (b) (iii) by the AB in its Russia Panel Report. The Main Findings…………………………………………………………………..5.4 Relevant Implications for the Ongoing Disputes Relating to Sections 232 Actions…... 5-5 The Security Exception of Article 73 TRIPS as Interpreted by the Panel Report in the Qatar’s WTO Dispute with Saudi Arabia…………………………………………………5.6 The Recent Invocation by Ukraine of the Security Exceptions of the WTO to Justify its Imposition to the Russian Federation of a "Complete Economic Embargo" and the Measures Adopted by Third States ……………………………………………………………………5.7 The Need of a Re-conceptualization of the WTO Security Exceptions in the Light of their Evolving Nature:a) National security as "economic self-sufficiency and competitiveness"…………….b) Other threats to the national security……………………………………………….C Concluding Remarks: Economic Nationalisms versus the Multilateral Trading System