Global Trade and Law by Stuart Malawer.

Some books and publications by Dr. Stuart S. Malawer, JD, Ph.D. on international law and global trade:

 

          Federal Regulation of International Business (Georgetown and US Chamber of Commerce)

 

     

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Setback for Trump on Trade — US Court of Int’l Trade & Turkish Steel Imports.

The US Court of International Trade today declared that the Trump administration’s additional tariffs on import of Turkish steel under Section 232 (National Security) were invalid. They failed to fall within the statutory period of action.

The larger story is this is the first time for such a determination that there was a procedural violation under Section 232.

This amounts to a small but significant advance of the growing attack on the President’s use of national security as a basis for tariffs and as a possible violation of separation of powers.

The court stated forcefully that a tariff cannot be irrational with no bearing on national security. And this is judicially reviewable. The court cited the earlier 2019 Circuit Court case concerning the steel importer’s association (AIIS).

This current case comes along within the larger context of a movement in Congress to scale back the president’s authority to use national security and other trade actions unilaterally. Focusing on a return of such trade powers to the Congress.

Click to access 20-98.pdf

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World History & Today’s Disorder.


Richard Hass’ new book THE WORLD – A BRIEF INTRODUCTION (2020) is aimed at reviewing world history and presenting it to those that do not know much about it. He contends that’s mostly everybody. The book briefly starts with the Thirty Year War and goes through the Post-Cold War era. He then discusses global regions, globalization and concludes with a discussion of international relations.

What’s my take?

This book is something like global history for dummies. But that’s fine. It’s well done and an easy read. What I find most interesting are various remarks the author makes throughout this book. Here’s some of them:

• Some of the consequences of globalization are simultaneously good and bad.

• History can be understood as an ongoing narrative of world orders materializing, breaking down, and reemerging in another form.

• The bedrock of world order has been respect for sovereignty.

• Order cannot be based on sovereignty alone, must also be grounded on balance of power.

• The liberal order is now fraying. The result is a decline of America’s relative power and a growing unwillingness to play its traditional role in the world.

• Resurrecting the old order is impossible. Countries will need to work together.

• The United States must be more prudent in using military force or weaponizing its economic policy.

It’s hard to disagree with the above observations. The next stage for the reader is to figure out how to move forward in light of the world history outlined by the author. History is essential to understand. We need to critically assess it in formulating responses to newer global challenges we all face. 

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WHO and Trump’s Treaty Termination — Lawful, Yes. But Bad Policy.


Good editorial in the New York Times today — “Don’t Leave the WHO, Strengthen it.”  Here’s some statements concerning the president’s right to withdraw from a treaty:

    • The world is fighting the most serious pandemic in a century, and the United States is in the process of withdrawing from the only international organization equipped to lead that effort.
    • It remains to be seen whether Mr. Trump can withdraw from the organization without congressional approval.
    • Some global policy experts say that because the United States joined the W.H.O. by treaty, the president will need congressional approval to leave it. But previous presidents have withdrawn from treaties without lawmakers’ approval.
    • But just because Mr. Trump may have legal standing to take the country out of the W.H.O. doesn’t mean he should.
    • But withdrawing from the W.H.O. in the middle of a global pandemic is a terrible solution to those problems.

The New York Times isn’t quite right as to the law. Presidents do have the right to terminate and withdraw from a treaty without congressional approval. It’s part of his foreign affairs powers. Courts have upheld this unilateral termination. In fact, I would argue even if the implementing legislation for a treaty precludes this, as a matter of international law that termination would still stand.

A lot more can be said about treaty termination. Unfortunately, the Constitution and the courts don’t say much about it. Neither does public international law or the law of treaties, specifically. The inter-play between constitutional law, international law, self-executing and non-self-executing treaties and foreign policy is certainly an area that could benefit from renewed attention by American courts and scholars.

But the decision to withdraw from the WHO, whether or not it conforms to U.S. law or the treaty itself, is a real bad idea.

 

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TRUMP’S FOREIGN POLICY DOCTRINE — “REJECTION & WITHDRAWAL.”

    

 

Trump’s withdrawal from a range of international agreements and institutions (Trans-Pacific Partnership, Paris Climate Accord, Iran nuclear deal, UNESCO, UN Human Rights Council, Open Skies Treaty) from the very outset of his term can now be loosely labeled a foreign policy doctrine. I would call this Trump doctrine “Rejection and Withdrawal.”

Trump has established a pattern of rejection and withdrawal from a broad range of international agreements and institutions—from trade agreements to nuclear arrangements and now the World Health Organization. His actions constitute rejection and withdrawal from the rules-based international legal and political order that evolved in the post-1945 world.

These actions or threatened actions (especially against the Word Trade Organization and from NAFTA) are consistent with his “America First” slogan, which signaled American isolationism in the 1930’s has, in fact, made the United States less safe in this decade. It has placed the United States behind other nations trying to confront global issues collectively.


An absence of international cooperation leads only to counter-productive unilateral actions such as tariffs, boycotts, export controls, trade sanctions, foreign investment controls). This has been made abundantly clear most recently. Note Trump’s glaring failure to cooperate during this global pandemic where he has fallen back on blame and name calling to an extreme, especially in regard to China.

Needless to say, this is now part of Trump’s reelection strategy. We need global cooperation to meet global problems. There is no way around this.

Clearly, many world leaders learned this lesson from the 1930’s, when the world was far less interconnected. But I guess Trump missed that lesson in school as well as in life.

 

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TRUMP’S TRADE DELUSIONS & THE WTO.

From “The WTO is Needed Today as Much as Ever.” Lead Editorial from the Financial Times (May 19, 2020).

 

The World Trade Organization is under attack, above all by the US, the country most responsible for its creation.

Donald Trump  clings to the delusion that bilateral pressure will rebalance trade in favor of American exporters. Yet, as Jeffrey Schott of the Peterson Institute for International Economics notes, the president’s deals “have barely done anything to improve US access to foreign markets”. Worse, his bullying has caused costly retaliation.

The US cannot abolish the WTO. But it can wound it. Indeed, it has already done so by rendering the WTO’s appellate body inquorate. Others are trying to create a temporary substitute. Yet this can only be a makeshift solution.

Worse, the collapse of the judicial function is far from the only peril confronting the WTO. The legislative function, which requires fresh agreements among members.

Again, the delusion has surfaced that the WTO undermines sovereignty. But trade relations always involve at least two governments. If all insist on absolute sovereignty, the security needed by enterprises located in all others disappears. That is why wise leaders understand that binding mutual commitments increase effective sovereignty. Again, the more global the agreements the greater is the security.

If we did not have the WTO, we would have to invent it. Today, that would be impossible. Happily, we only need to make sure it survives, in order to underpin the open global economy we will all need on the other side of the pandemic. 

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Trump’s WTO Campaign Despite the Global Pandemic.

The WTO Director-General’s recent resignation adds a new degree of  uncertainty to global commerce in the midst of a global pandemic that is about to cast global and U.S. trade relations into uncharted territory.

This unforeseen situation and the growing global pandemic emerged as the Trump administration’s term enters its last few months. Trump’s response to the pandemic will likely be the focus in the run-up to the presidential election—especially regarding trade relations with China, whom Trump has decided to scapegoat rather than cooperate with in confronting this global health crisis. This China scapegoating seems to be his new election strategy.

The pandemic that involves both public health and economic concerns must be placed squarely within the context of trade conflicts spurred on by Trump’s tariff, trade and investment wars over the last four years. His reliance on export controls (Huawei), his restrictions on foreign direct investment into the U.S. (by China), and his ‘America First’ protectionism have been hallmarks of Trump’s foreign policy since (and even before) coming to office. Protectionism and isolationism did not work in the 1930s.

The WTO’s operations and especially its dispute resolution process have been crippled since last year due to U.S. actions. For example, the U.S. has refused to approve nominees to fill vacancies on the Appellate Body, thus stalling critical trade case decisions by the dispute resolution system.

This policy of attacking the WTO has been central to Trump’s generalized attack on the global system and on its institutions and alliances. Recall Trump’s disparagement of the World Health Organization and of the International Criminal Court as well as his withdrawal from the Trans-Pacific Partnership (TPP), UNESCO and the Paris Climate Accords, among others. In addition, he demanded to renegotiate NAFTA and a host of bilateral trade agreements.

These actions are a call to arms to subvert the larger global order—not just the global trading system. This global order and trading system were the great contributions of American diplomacy in the post-war era. Trump’s actions are a massive attack on the global rule of law that mirrors his domestic attack on the rule of law and on institutions within the U.S.

World trade was already declining because of Trump’s trade wars, and trade has plunged further since the pandemic brought many countries’ economic activity to a standstill. Trade is predicted to plunge even more. Trump’s erratic actions, blaming and bullying have not helped. Indeed, they will only accelerate the further deterioration of global trade and investment and the American economy.

Trump’s policies toward the pandemic and global trade will be his foreign policy’s lasting legacy of the last for years and the central battleground for his reelection.

 

 

 

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Trump’s Erratic China Policy — Alarming.

Observations form the Financial Times lead editorial today  “Trump’s Erratic China Policy Risks Backfiring” ——-

  • Unfortunately, President Donald Trump’s approach to China is so erratic that it alarms US allies.
  • Trump is looking at making it easier to sue the Chinese government for damages in US courts. While such an action might be tempting for businesses efforts to secure financial reparations from China is  dubious under international law — and would almost certainly retaliation.
  • The Trump administration’s policies towards China are part of a broader U.S  assault on the international rules-based order.
  • The broader difficulty is that the Trump administration’s goal is not to compel China to follow international rules — an aim they would support — but to destroy the rules.
  •  The White House has pulled the US out of the Paris climate accord, the Iran nuclear deal and the Trans-Pacific Partnership, and is deliberately hobbling both the World Trade Organization and the World Health Organization. And the president has threatened to impose tariffs on Germany and Japan — and has expressed skepticism about NATO and hostility towards the EU.
 https://www.ft.com/content/b9a063aa-9057-11ea-9207-ace009a12028
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TRUMP AND TRADE — ATTACKS CONTINUE — Election Year 2020!

   

     

                       TRUMP AND TRADE

                       (Some of my Twitter Comments Jan. 1, 2020 – May 2020).

                                            TWITTER.COM/SMALAWER                

 

Trump is blaming China for the global pandemic. Trying to negate the doctrine of sovereign immunity. Stop it! Yes, we need a reset of China relations. Negotiations & cooperation, not confrontation. Stop the usual blame game, now.

Josh Hawley: Abolish WTO —- This man is even more ignorant than Trump. Even the Wall Street Journal refuses to give him a platform. How on earth did the New York Times ever let this pass an op-ed review! Let’s have some strengthened journalistic standards.

Trump said he will terminate “phase one” trade deal with China if Beijing does not make good on commitment to buy $200 billion more U.S. goods & services over the next two years. Wait, he’s blocking Chinese imports into US. But he wants China to buy? Real business genius.

Trump-“Tariffs are the ultimate punishment … Tariffs at a minimum are the greatest negotiating tool we have ever devised & never used for negotiation.” Doesn’t he understand that US importers & consumers pay? Only leads to retaliatory tariffs? I wonder what he learned at Wharton.

New or Renewed Federalism? Yes. Governors step up. Trump fails virus crisis. Excellent piece in WP. This started earlier at the very outset of Trump’s administration’s failures & policies of contempt. States formed alliances addressing climate, trade ….

Disdain & suspicion, contempt & blame are not policies. Sound policies now rely almost entirely on state governors. Competence and expertise in the public sector are great assets. ‘Deep State’ or ‘Administrative State’ are demeaning terms. Never should be used, Mr. President.

Trump threatens tariffs on China because of virus crisis. Stop playing the racist blame game. It doesn’t play. We need competence & honesty in pubic service. This is basic civics & leadership. Way too much is at stake for the US & the world.

For 3 years Trump has attacked the trading system. Actually for decades. Now the virus pandemic is battering it. This pandemic is fostering protectionism. If unchecked, the world will repeat the 1930s. Actually probably worse. More connected now.

30 Million Unemployed and 60,000 Dead because of Virus — in 3 months. More dead than Vietnam War 58,000 — 10 years. Really incompetent & grossly negligent US leadership both times. We’re the richest & most powerful country. What about some honesty & basic competence this time.

Trump to States & Cities—“Drop Dead” Back to the future? They need assistance combatting crisis, now. They are the frontlines. Not corporations receiving huge new tax breaks. Ever hear of federalism & real leadership? Forget yourself for once & your gripes. You’re failing, badly.

We need competent government. We have it in public employees in the federal & state governments. We need it in our politicians. Enough already with pejoratives such as “Administrative State.” The virus crisis has put the lie to this self-interest approach to public policy & law.

Amid rising disapproval of his incoherent virus response & record unemployment Trump is returning to a familiar trick book.Trump is reviving rhetoric that got him elected: blaming China, global institutions, immigrants & now governors. Disgraceful. This will not play well in Nov.

Simple Solution —Trump Trade Tariffs should be lifted. Gives immediate tax relief. Will spur removal of retaliatory taxes on US farm exports. Help desperate farmers. Never made any sense. Are legally questionable. Trade policy is big part of the solution.

This is outrageous — Trump terminates funding for the World Health Organization (WHO). Really! Blaming the WHO for his criminal negligence! Not surprising. Staying true to form, really unfortunate.

U.S. governors are at the forefront in the fight against the coronavirus. Now organizing to lead the way out of the crisis. States on both coasts have formed coalitions to devise reopening’s of their economies. Trump claims he has the final say. Not so under the Constitution.

The grotesque failure of Trumpism & ineffectiveness of federal leadership highlights the renewed & important role of states in protecting Americans. Redefining Federalism and States Rights away from its Southern perversion to protection of all Americans.

From book by Dr. Frank “Trump on the Couch” — To lie is to defy the law. Trump’s habitual lying serves to express his deep-seated drive to defy the law. Helps him get by in the world. President Trump now lies to survive.

The U.S. as a Global Leader in a Time of Crisis …. US is Utterly failing to provide global leadership. Trump is hiding behind ‘America First.’ Can’t hide behind an illusory Maginot Line. Basic history. That only leads to greater disasters.

Trump’s Tariffs Amid Coronavirus ….. Trump’s tariffs need to be lifted immediately. These were bad initially. Now really awful. We need int’l cooperation and real American leadership globally. ‘America First’ beginning to look like ‘America Last.’

New article….. “One can draw a straight line from Donald Trump’s ruthless mode of operating in the contentious world of New York real estate to his operations on the world stage today.” Malawer, “Trump: From Queens to the World Stage.” (Spring 2020).

Lifting duties Trump imposed on Chinese goods & global steel imports would provide a boost to the U.S. economy of more than $75 billion. But of course the stable genius still blames everything on China. Time to stop the trade war & start leading again. That’s the real America.

South Carolina has 500 foreign companies. Virginia has double that amount. Trade is essential to economic development. It has a bad rep among Democratic contenders. But not all. Along with beating Trump trade should be a top issue.

New S. Ct. conservative majority broadly applied the foreign policy & national security defense — for not examining executive action. Border agent shot a teenager across the Mexican border. Doesn’t portend well for future reviews of executive actions relying on this defense.

Really amazing how one of the most obscure domestic and int’l issues (tariffs) has become one of the most important U.S.foreign policy tools and global issues. Back to the 1930s? How did that work out? Accelerating the depression and international conflict.

Chief Justice Robert’s annual report on the S. Ct. declares that civic education is essential & Federal judges take on this challenge. To me universities must reassert the importance of civics in their programs. This is essential during the Trump years.

My Websites — http://www.globaltraderelations.net/  

                               http://us-global-law.net/

 

 

 

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Supreme Court and National Security — Are Trade Actions Immune from Review?

 

The U.S. Court of Appeals for the Federal Circuit concluded recently that §232 of the Trade Expansion Act of 1962 does not offend the non-delegation doctrine. Thus, upholding President Trump’ steel tariffs. But the story on §232 and the non-delegation doctrine is not over.

Shortly after the Federal Circuit issued its decision the American Institute for International Steel announced that it would seek review by the Supreme Court.

Although several members of the court have expressed an interest in revisiting the non-delegation doctrine, the Supreme Court has often avoided resolving issues involving national security. But not always by any means. Just think about cases involving the rights of Guantanamo detainees. We’ll see.

The Federal Circuit Court relied on an old case (Algonquin 1976) to uphold President Trump’s actions. From a different era. And was very narrow as to both the executive action examined and international consequences.

By the way, WTO cases are pending also involving President Trump’s steel tariffs and national security. Those actions created a diplomatic crisis involving international commerce not existing in the earlier 1970’s case.

Opinion of the Federal Circuit — https://lnkd.in/eAkj4PT

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