Insights

Regardless of what happens in the U.S. elections on November 5, one theme is clear – protectionist policies in international trade are here to stay. To some extent, the key difference between the trade policies of a Harris administration and a second Trump Administration may be one of degree. Vice President Harris is expected to continue the more cautious, incremental approach to trade policy favored by the Biden Administration. A second Trump administration, on the other hand, is expected to pick up where it left off and aggressively use the trade tools at its disposal to try to reset and renegotiate trade relationships with many of the U.S.’s trading partners—particularly those countries with whom the U.S. has a trade deficit.

Congress enacted the UFLPA on December 23, 2021 in response to alleged forced labor violations occurring in the People’s Republic of China. The UFLPA supports U.S. Customs and Border Protection’s (CBP) enforcement of Section 307 of the Tariff Act of 1930. The act aims to prevent the importation of goods sourced and/or made in whole or in part with forced labor from China into the US by imposing a rebuttable presumption that holds that any goods “mined, produced, or manufactured wholly or in part” in the XUAR or “produced by an entity on the UFLPA Entity List” are prohibited from import into the US. The UFLPA’ s rebuttable presumption went into effect on June 21, 2022.  

EU member states must transpose the directive into national law within two years of its entry into force.  Compliance with the Directive will be introduced in stages, as follows:

On March 13, 2024, the EU legislators reached a provisional agreement on the content of the regulation prohibiting products made with forced labour (“the FL Regulation”). This piece of legislation is part of a series of proposed directives addressing human rights in supply chains which also incorporates recent European ESG efforts (CSRD, CBAM, Regulation against deforestation).

The United States-Mexico-Canada Agreement (USMCA) came into force on July 1, 2020. Included in the USMCA are stronger labor provisions Congressional Democrats demanded, with the support of the Trump Administration, that were approved on a bipartisan basis during consideration of the USMCA implementing legislation in late 2019. The stronger labor provisions helped secure the support of key labor groups for the USMCA. Together with overall support from business groups, the USMCA set a framework for more extensive labor commitments in U.S. trade agreements. This is expected to lead to more aggressive enforcement.

Chinese companies, including Chinese subsidiaries of multinational companies, are seeing returns of previously exported goods for many COVID-19 related reasons, including the suspension of contractual obligations under force majeure provisions. China is now helping affected companies with new tax and duty relief. China Customs announced on November 2, 2020, that the State Council has approved tax rebates for goods returned due to COVID-19. For goods that were exported from January 1, 2020 to December 31, 2020, the exporters will not be required to pay import duties, import value-added tax (“Import VAT”), and consumption tax on goods that are returned to China within one year of export (“Qualified Returned Goods”). Export duties paid on the goods will also be refunded to affected exporters.

Transfer pricing is a major enforcement priority of China Customs in 2020. In April 2020, China Customs launched a national enforcement action to investigate and audit import transactions between related companies. More than 1000 multinational companies have received notices from China Customs requesting information on their transfer pricing policies and activities.

The central government of the People’s Republic of China (PRC) as well as provincial and city level governments across the country have announced numerous incentives and supporting measures to assist companies, including wholly foreign owned enterprises (commonly referred to as WFOEs) and Sino-foreign joint ventures, in resuming production and operations that were adversely impacted by the COVID-19 outbreak. In China, provincial and municipal governments often have discretion to implement specific rules pursuant to broad policy guidelines or requirements issued by the central government so long as the local rules do not provide benefits or incentives that are lower than that provided in the national guidelines. Accordingly, companies should confirm the local rules at provincial or municipal levels as specific implementing measures may vary.

On January 31, 2020, the Trump administration issued an executive order cracking down on U.S. businesses that import directly or facilitate the import of counterfeit or pirated goods, illegal narcotics and other contraband. The order, entitled “Ensuring Safe & Lawful E-Commerce for US Consumers, Business, Government Supply Chains and Intellectual Property Rights,” directs various government departments and agencies to undertake a series of measures to carry out the president’s effort to combat illegal imports. The initiative has far-reaching implications not only for importers and brand owners but also for e-commerce platforms, government contractors, and service providers in the global supply chain that provide warehouse, customs brokerage and transportation services. Parties that fail to comply with the new measures may be barred from participation in certain transactions involving the federal government and/or banned from importing goods into the United States. Additionally, the Department of Justice will be notified of custom violations that are actionable under the False Claims Act, thus another implication is the potential for increased civil and criminal enforcement actions.

Chinese law requires companies to accurately classify and declare goods imported into or exported out of China under its version of the Harmonized System (HS). Importers and exporters who fail to properly classify products may be e subject to criminal or civil penalties. Tariff misclassification in China has become a flashpoint for multinational companies due to uncertainty caused by the convergence of the following events:

In this issue:

On May 13, 2019, the Chinese Customs Tariff Commission of the State Council (CTCSC) issued CTCSC Announcement [2019] No. 3 announcing China’s retaliatory measures in response to the United States’ latest increase of Section 301 tariffs from 10% to 25% on $200 billion worth of Chinese imports.