Does U.S. Law Bring Order to Global Commerce? Yes, in Many Cases.

                                   TPP World    
  Trade and international legal developments concerning corruption, price-fixing conspiracies, the TPP debate, international accounting and tax rules continue to illustrate the importance of global trade and U.S. law over the last few weeks. Most interesting is  the application of U.S. law (prosecutions) to a broad range of activities and global actors, including global sports and financial dealings. In many ways these developments highlights the critical importance of the U.S. and its legal system in bringing order to global commerce. Here are some particulars:
Unfortunate divide in the Democratic Party. Tech firms and Silicon Valley support TPP and trade. Manufacturing-based industries and labor do not. Better communication and understanding are needed to move the trade agenda ahead. It’s in the national interest. “Obama and Trade.” Washington Post (June 2, 2015).
Last year has seen an upsurge of dispute resolution activity in the WTO. Developing countries initiated a number of new cases. The EU was the most active developed country. Many different trade areas were litigated. A busy year. Once again showing the strength of the rules-based system for global trade. WTO News (May 22, 2015).
Posner is wrong. U.S. antitrust laws apply to U.S. foreign subsidiaries abroad. Both restricting their activities and protecting them. Precluding the right of a foreign subsidiary to sue for its loses, after a criminal antitrust suit against a price-fixing cartel, ignores the reality of the structures of global multinational firms as a single enterprise managing a global supply chain. His view imposes a too restrictive interpretation of older antitrust laws to today’s global business environment. “Posner and Global Antitrust.” New York Times (May 31, 2015).
The story here is that American power rests on its justice system and the international application of its laws extraterritorially. Its global prosecutions possess a moral authority that stems from its law governed society. These prosecutions for corruption as well as for money laundering and sanction violations carry a global credibility. No other country has this such authority or credibility. “FIFA and U.S. Extraterritorial Law.” Financial Times (June 1, 2015).
Isn’t this interesting? The world now appreciates the extensive extraterritorial reach of U.S. criminal law to prosecute global corruption. Especially that touching international bodies and firms doing business here in the U.S. This is a major turnaround from the traditional concern by many foreign states as to the unilateral reach of U.S. jurisdiction — especially under the Foreign Corrupt Practices Act. It now dawns on them somebody has to do it and its good of everybody. Good for the USDOJ. “FIFA, U.S. Law, and Global Corruption.” Financial Times (May 27, 2015).
Global cities are participating more in the global economy but so do many states and counties within the U.S. “A New Global Order of Cities.” Financial Times (May 26, 2015).
So much for the congressional critics demanding currency provisions to be included in the TPA and TPP. The IMF has determined that the yuan is in fact fairly valued. In another words it’s exchange rate does not provide an unfair advantage to Chinese products being sold into the US marketplaces. “IMF and Lorton.” Wall Street Journal (May 26, 2015).
Doesn’t seem to make sense. Workers in US firms exporting make considerably more than those working in firms that only sell domestically. Limitations on imports to the US would only lead to limitations on US exports to other countries where they are imports. Maybe the real problem is better education and understanding of the reciprocal essence of global trade thus leading to greater public support in the US. “Trade and Affluent.” New York Times (May 27, 2015).
US int’l tax accounting rules should require multinationals to deduct tax deferral amounts from annual profits as an expense. This would make more transparent the tax avoidance of corporate groups as well as giving a more accurate picture of the real profitability of global transactions. Perhaps it would also prove to be an incentive to restrict this practice. Nevertheless, the real remedy is for tax reform to restrict and recapture these overseas retained earnings. This practice of int’l tax deferral is a real scar on corporate taxation today. It needs to be changed. “Overseas Profits.” New York Times (May 22, 2015).
Plurilateral agreements such as TPP / TTIP do represent a long-term threat to a multilateral system under the WTO but they are worthwhile today. “Future of Global Trade Policy.” Financial Times (May 12, 2015).
After the criminal antitrust pleas here comes private class actions with treble damages. Let go after some of the individuals who escaped criminal action. “FOREX and Criminal Pleas.” Financial Times (May 21, 2015).
Paul Krugman is disingenuous. It isn’t analytically honest to say there is no trust in trade policy just because you don’t like particular policies.The TPP promotes both intellectual property rights & of trade disputes. The last time I looked these have been basic tenets of US trade policy for decades. These are among the two most important aspects of the global economy today. Growing environmental and labor concerns are important but it is important to remember that they have not been central to trade policy historically. “Trade and Trust.” New York Times (May 21, 2015).
Billions of fines for criminal antitrust violations by global banks for fixing FOREX & LIBOR rates. However, they are not the individuals that conspired. They are not real people. What about convicting individuals involved. Also the corporate non-prosecution agreements don’t seem to incentivize against future misconduct. This would help against repeat criminal actions, hopefully. Unfortunately, we have seen too many cases of repeat and serial violations by multinationals on a wider variety of issues including money laundering and tax evasion. But this is a good start by the Dept. of Justice. “Forex and Libor.” Financial Times (May 21, 2015).
WTO ruling against US on country-of-origin labeling. COOL is discriminatory and should be dropped. WTO News (May 18, 2015).
Trade is not the problem. It’s taxation (really non-taxation) of U.S. multinationals that should be the target of unions. “Labor and Hilary.” New York Times (May 18, 2015).
Global Trade is Complex. It’s not an option. Improving its terms is good idea. Demagoguery is not. Warren is going to lose on this. “Warren and Trade Bill .” New York Times (May 15, 2015).
Regional trade agreements TPP &TTIP cannot push WTO & global trade rules from center stage. “Future of Trade.” Financial Times (May 12, 2105).
U.S. military leadership understands the strategic nature of global trade talks. Pass TPA and TPP. “The Military View of Trade.” Financial Times (May 7, 2015).

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About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (School of Public Policy).
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