Alice Slayton Clark Archives

ICC/USCIB Competition Committee Hosts DOJ Antitrust Expert

Published on September 18, 2017

USCIB’s Competition Committee held its annual joint meeting on September 11 in partnership with the International Chamber of Commerce (ICC) Commission on Competition. Introductory remarks included comments by Paul Lugard, partner, Barker Botts LLP and chair of the ICC Competition Commission, and John Taladay, partner, Baker Botts LLP and chair of the USCIB Competition Committee.

The meeting included an off-the-record exchange of views with Bernard A. Nigro, Jr., deputy assistant attorney general, U.S. Department of Justice, antitrust division, on issues of relevance to USCIB membership, including international engagement, trade related competition issues and mergers.

The remainder of the meeting provided updates on the ongoing projects of the various task forces of the ICC Competition Commission, including on compliance and advocacy, merger control regimes, due process, the International Competition Network (ICN), cartels and leniency, and court proceeding in antitrust damage claims.

Finally, the membership received an update on ASEAN competition issues by Hatasakdi Na Pombejra from HN Pro International, who presented on behalf of ICC Thailand.

NAFTA Briefing Focuses on Importance of Keeping Investor Protections

Published on August 31, 2017

On August 29, USCIB and the National Association of Manufacturers (NAM) co-hosted a very useful briefing on the challenging investment chapter issues in the just-launched NAFTA updating negotiations with senior officials from the Office of the U.S. Trade Representative (USTR). The USTR lead investment negotiators were joined by other senior USTR officials and a business side of two dozen company and trade association representatives with major concerns about the NAFTA investment chapter, especially the important issue of “Investor-State Dispute Settlement” (ISDS). The business turnout at a short notice meeting in late August is a clear demonstration of the importance that USCIB members and the broader community ascribe to these investment issues. The US negotiating team was heading to Mexico City for the second round in the NAFTA updating negotiations September 1-5.

Most of the meeting consisted of business reps around the table offering their comments, concerns, questions and recommendations regarding USTR’s approach to these investment negotiations. By design, the USTR team did more listening than talking. USCIB and NAM staff led the business comments and were very clear and direct with our concerns and recommendations. We also had broad and strong participation around the table from companies and associations from a wide range of sectors. The key points made by a number of business representatives included:

  • The NAFTA investment chapter has generally worked quite well for U,.S business. We are open to well-crafted proposal to improve the chapter but, as in many other important chapters in NAFTA, our basic watchword will be “first, do no harm.”
  • Business needs a strong investment chapter in NAFTA and in other U.S. Free Trade Agreements (FTAs) and Bilateral Investment Treaties (BITs), including high standard core substantive investment protections, broad coverage and definitions to include new forms of foreign direct investment , and, critically, strong ISDS provisions to ensure enforcement.
  • We are quite concerned by recent press report that the Administration might be considering a proposal to make the ISDS enforcement provisions “optional”, whereby each of the three NAFTA government could “opt in” or “opt out” of NAFTA’s ISDS dispute settlement provisions. If a government of governments were to opt out, the only way an aggrieved foreign investor could seek redress would be in the local court system of the host government. USCIB and company and associations reps around the table made clear that such revisions in NAFTA’s investment chapter would be unacceptable.The discussion was, we thought, very useful for all participants and will hopefully provide a model for on-going consultations with USTR on all the key investment issues throughout the negotiations. Members interested in getting more involved in USCIB’s efforts on NAFTA investment issues should contact Shaun Donnelly or Eva Hampl.

In NAFTA Modernization Talks, Business Looks to Keep What’s Working

Published on August 28, 2017

Earlier this month in Washington, D.C., the United States, Canada and Mexico kicked off the NAFTA modernization effort with their first round of negotiations. The next round will take place September 1-5 in Mexico. As the three countries noted in their joint statement, the negotiations will continue at a rapid pace, with a third round planned for Canada in late September, and a fourth round back in the U.S. in October.

USCIB has been actively representing member interests in the NAFTA modernization effort, including submitting comments to USTR and testifying at the public hearings. Our written submission focuses on ensuring beneficial provisions stay intact and improving upon the agreement in new areas, such as e-commerce, telecommunications, digital trade, cross border data flows, and state-owned enterprises. And several USCIB-penned op-eds have sought to present the business case for keeping what works in NAFTA while bringing the agreement into the 21st century.

“In light of the ambitious negotiating schedule, we will need to focus on priority issues that require specific attention in our advocacy efforts,” notes Eva Hampl, USCIB’s director of investment, trade and financial services. “We also need to be prepared to provide more detailed input as the governments move quickly to consideration of texts.”

Working with USCIB Senior Vice President Rob Mulligan, Hampl is spearheading the development of targeted USCIB comments on potential changes to NAFTA for submission to the U.S. Trade Representative’s office. In addition, Hampl and USCIB Vice President Shaun Donnelly are working with USCIB members to demonstrate the continued importance of strong investor-state dispute resolution (ISDS) provisions in NAFTA. And Megan Giblin, USCIB’s director of customs and trade facilitation, is working closely with members to provide targeted input on NAFTA’s customs-related provisions.

USCIB members should contact Hampl at ehampl@uscib.org to discuss their priority issues in the context of these fast-moving negotiations.

ICC and WTO Launch Small Business Champions Initiative

Published on August 28, 2017

A joint effort to facilitate participation by smaller companies in international trade has been launched by Roberto Azevedo, the director general of the World Trade Organization (WTO), and John Danilovich, secretary general of the International Chamber of Commerce.

Those businesses putting forward successful proposals will be recognized as “ICC-WTO Small Business Champions.”

Despite their economic importance in developed, developing and least-developed countries, the share of trade accounted for by micro, small and medium-sized enterprises (MSMEs) is disproportionately small, often because they are unaware of the potentially wider market and because they traditionally have not had the resources to navigate sometimes complex trading procedures. But new technologies are helping to pare back these obstacles and create a more level playing field for smaller companies in international trade. Helping more MSMEs to trade internationally is an important step in building a more inclusive trading system that benefits a wider array of citizens.

Secretary General Danilovich and Director General Azevedo are therefore calling for businesses and private sector organisations to step forward with proposals which can help MSMEs to participate in international trade. The aim is to raise awareness of the barriers that MSMEs face in doing business across borders, highlight the experiences and success stories of those MSMEs that are already trading, facilitate access to critical information, and raise skills among MSMEs to enable them to diversify export markets.

“I have heard many great ideas from the private sector over recent months about how we might be able to help MSMEs to trade,” said Azevedo. “This initiative is our response – it is about capturing some of those ideas and using the shared platform of the WTO and ICC to help make them a reality. I look forward to seeing innovative proposals aimed at raising awareness among MSMEs of the opportunities that trade can provide, and how they can seize those opportunities.

“The trading system is there for everyone, but MSMEs can often find it harder to reach overseas markets. The smaller the business, the bigger the barriers can seem. Spreading the benefits of trade further and wider means helping these companies to take part, particularly as MSMEs are such important job creators.”

Danilovich added: “Trading internationally can provide a huge boost to MSME growth. We know that small businesses which export tend to grow more quickly, pay better salaries and create more jobs. But MSMEs still face significant barriers when it comes to accessing global markets. Small business owners often tell us that they lack the time and in-house expertise to deal with trade roadblocks – while many others aren’t aware of the potential opportunities that international trade can bring for their companies.

“Policy reforms have an important role to play in driving MSME exports. But we also think its time to take a different approach to these problems by leveraging the power of the private sector. This new initiative will seek to harness the knowledge, creativity and networks of the global business community to inspire and support MSME growth. We call on businesses and private sector organisations across the world to play their part as small business champions.”

What kind of proposals are ICC and WTO looking for under this initiative?

  • Proposals could take the shape of, for example, awareness campaigns, competitions, or capacity building, training and mentoring programs.
  • The ICC and WTO will use their shared platform to support and promote successful proposals. The precise support provided by the ICC and WTO will depend on the nature of the proposals received. The ICC and the WTO could, for example, help to promote initiatives and host events, or provide expertise and institutional support. No financial contribution will be provided by the WTO or ICC to implement proposals.
  • Proposals should be designed to be delivered by the entity making the proposal. Proposals should not focus on WTO negotiations, or proposed changes to WTO rules. Such ideas can be put forward through different fora.

What is the process for submitting proposals – and how will they be selected?

  • Proposals should detail the concept, aims, timelines and other information as appropriate. Proposals should be no longer than 3 pages. Proposals are only open to the private sector and representative bodies. All proposals should be sent in Word or PDF format to MSMEsubmissions@iccwbo.org

The call for proposals is open until the end of 2017. There is no limitation as to the number of proposals that may be selected. The selection of proposals will be carried out by the WTO secretariat and ICC. The successful proposals will be announced by  ICC and WTO on a rolling basis.

Robinson: NAFTA Talks an Opportunity to Modernize Agreement

Published on August 22, 2017

As negotiations between the United States, Canada and Mexico to update the North American Free Trade Agreement got underway last week in Washington, D.C., USCIB President and CEO Peter M. Robinson was quoted in Chief Executive magazine as saying that the talks provided a valuable opportunity to update an agreement that has been in place for more than two decades.

“Negotiators can do this especially by addressing such issues as digital trade, cross-border data flows, streamlined customs processes, treatment of state-owned enterprises and regulatory coherence,” said Robinson. “But negotiators should preserve those parts of NAFTA that have worked well for U.S. business. These include the investor protection provisions, including a strong investor-state dispute settlement framework. Access to strong ISDS arbitration procedures can be especially important for smaller companies, given their greater vulnerability to costly, protracted legal battles in foreign courts.”

In June, Robinson contributed an op-ed to The Hill outlining USCIB’s goals for NAFTA modernization.

Read the entire article on Chief Executive’s website here.

USCIB Joins 107 Associations on NAFTA Letter on Investment

Published on August 14, 2017

USCIB joined 107 other associations in a letter sent on August 8 to United States Trade Representative Robert E. Lighthizer and four other cabinet-level officials in the administration highlighting the importance of a strong investment chapter in the North America Free Trade Agreement (NAFTA).  The letter emphasized the need for strong enforcement provisions via an investor-state dispute settlement (ISDS) system with independent expert arbiters.  The letter also offered six specific suggested changes to strengthen the current investment chapter in the NAFTA modernization negotiation set to begin August 16 in Washington.

“These provisions are highly valuable and have already helped many U.S. businesses that have faced the seizure, theft and mistreatment of investments in both Canada and Mexico. ISDS in the NAFTA has been highly beneficial to the United States,” the letter notes.

Investment, including Foreign Direct Investment, is key to driving economic growth, competitiveness, exports and jobs. Strong investment agreements, including ISDS arbitration provisions are key to effective enforcement.  The investment chapter will likely be a focus in the NAFTA update negotiations.

“We were delighted to have several USCIB member sectoral associations join us in signing the letter along with a broad coalition of national and state business groups,” said Shaun Donnelly, USCIB’s vice president for trade and financial services.

USCIB Urges Senate to Confirm Trump Administration Nominees

Published on August 4, 2017

USCIB is among approximately 90 American business and industry associations to have signed a letter to Senate Majority Leader Mitch McConnell and Senate Minority Leader Charles Schumer, urging the Senate to take expeditious steps to ensure the timely confirmation of qualified pending nominees to administration positions.

“The slow pace of confirmations is depriving agencies across the government of critical leadership and in the case of independent agencies, the quorum necessary to conduct critical business,” reads the letter.

Additionally, it notes: “The breakdown of the confirmation process results in a breakdown in the efficient and effective functioning of government and ultimately to a drag on the economy. Workers are sidelined as projects await permits from agencies that lack the quorum necessary to issue the permit. Businesses are left waiting for important administrative decisions that simply cannot be made in the absence of Senate-confirmed officials.”

To date, among President Donald Trump’s 283 executive and judicial nominations, only 67 have been confirmed. Of those 67, only 13 were confirmed by voice vote or unanimous consent, while 37 (55%) were confirmed only after going through the cloture process. By way of comparison, at approximately the same point in President Obama’s first term, the Senate had confirmed 206 nominees, 182 by voice vote or unanimous consent.

The full letter, along with the list of signatories, can be found here.

Donnelly Offers Ambassador’s Perspective in Commerce Training Session

Published on August 4, 2017
Shaun Donnelly

USCIB Vice President for Trade and Financial Services, and retired U.S. Ambassador, Shaun Donnelly offered an ambassador’s perspective on effective embassy commercial work on behalf of U.S. companies overseas to a group of new Foreign Commercial Service (FCS) officers at the U.S. Department of Commerce last week.

During the August 1 session at the Commerce Department’s Commercial Diplomacy Institute, Donnelly joined with former FCS Director General and retired Ambassador Chuck Ford to share perspectives, experiences, best practices and even a few war stories, on what makes U.S. embassies effective in promoting U.S. commercial interests overseas.

One key message Donnelly and Ford both emphasized is the importance of close cooperation around the embassy, especially between FSC and State economic sections plus active involvement from the Ambassador and the rest of the Embassy team.

The new FCS officers are headed to assignments as commercial attaches in U.S. embassies and consulates in China, Mexico, Nigeria, and (perhaps, given recent developments) Russia, as well as in U.S. Export Assistance Centers or “USEACs” around the U.S.

“It’s encouraging that the Commerce Department, despite budget uncertainties, is pressing ahead to recruit and train the much-needed next generation of FSC staff,” noted Donnelly.

Donnelly and Ford are used to collaborating; they worked together often in their long U.S. government careers and recently co-authored two “Support for American Jobs” reports on commercial diplomacy for the American Academy of Diplomacy.

USCIB Op-ed: NAFTA 2.0 Needs to Protect Investment

Published on August 1, 2017

USCIB’s Vice President for Investment and Financial Services Shaun Donnelly along with its Director for Investment, Trade and Financial Services Eva Hampl recently contributed an op-ed in The Hill titled, “NAFTA 2.0 needs to enshrine investor protections.”

As the Trump administration gears up to update the North American Free Trade Agreement (NAFTA) later this month, Hampl and Donnelly evaluate the Trump administration’s negotiating objectives, which were released last month.

“Overall, the administration’s “NAFTA 2.0” wish-list is solid. Some commentators have noted the irony of including so many goals that were essentially attained in the Trans-Pacific Partnership, an agreement President Trump withdrew from on his third day in office,” they write. However, one of the more crucial objectives, mainly investor protection under the agreement’s Chapter 11 are not included.

“These provisions, which allow U.S. investors both small and large to seek compensation for unfair, discriminatory or inequitable treatment at the hands of foreign governments, are based on bedrock principles embedded in our own Constitution prohibiting abusive government treatment and the taking of private property without just compensation. Without this provision, domestic courts become the only legal recourse for a wronged investor. While Mexico has made great strides in many respects, its court system is still far from impartial. Indeed, miscarriages of justice can happen in any country, including advanced democracies like the United States and Canada,” they noted.

Please visit The Hill for the whole op-ed.

Donnelly Co-authors Report on “Commercial Diplomacy”

Published on July 17, 2017
Shaun Donnelly

USCIB Vice President Shaun Donnelly has recently co-authored a new report on commercial diplomacy under the auspices of the American Academy of Diplomacy (AAD), a prestigious group of leading former senior U.S. government diplomats.  Donnelly, like former USCIB President and current USCIB Board Vice Chair Tom Niles, was elected to AAD membership after retiring from a long career as a Foreign Service Officer at the U.S. Department of State.

Over the past two years, Donnelly has co-led, along with retired Ambassador and former Acting Director General of the Foreign Commercial Service Chuck Ford, AAD work on two reports covering U.S. government support (focused on Department of Commerce, Department of State and U.S. embassies and consulates abroad) to assist U.S. business win sales, contracts, investment opportunities and other deals against increasingly strong foreign competition, often benefiting from much more effective advocacy and support programs from competitor governments.

The original report Support for American Jobs, Part I from March 2016 has now been supplemented with Part II from June 2017, which goes into further detail, at the request of the Commerce and State Departments, on three specific issues, including a detailed analysis of the commercial diplomacy programs of leading competitor governments.

“The “Executive Report” cover document addressed to leaders in the Trump administration paints a clear picture of foreign governments stepping up their games in support of their own companies, large and small, and suggests ways the new administration might be able to launch a major commercial diplomacy initiative do the same to help U.S. companies win on increasingly competitive international battlefields,” said Donnelly.

Donnelly and his AAD colleagues will be meeting with administration and congressional leaders over the coming weeks, seeking increased awareness of and action on the issue.  One of the potential merits of the nexus of commercial diplomacy issues is that it avoids some of the contentious atmosphere that surrounds U.S. trade policy debates (e.g. NAFTA, Trans Pacific Partnership, steel, World Trade Organization, etc.) and simply focuses on how the U.S. government might be better able to help our companies (and thereby our workers, shareholders and communities) win contracts, sales and deals and whatever trade policies the U.S. government is pursuing.

If you or colleagues at your organization have questions or would like to discuss the reports or commercial diplomacy in general, or if you’d like to help move these issues forward, feel free to contact Donnelly at sdonnelly@uscib.org.