It’s time for America’s trade umpire to cry foul against Russia’s aggression

Sens. Rob Portman (R-Ohio) and Sherrod Brown (D-Ohio) have demonstrated bipartisan leadership with a recent letter to the U.S. International Trade Commission (ITC) calling on that institution to help as the United States responds to Russia’s war of aggression against Ukraine. America’s international trade umpire, the ITC plays a unique role in long-running trade and intellectual property debates. For over a century, it has provided full and fair adjudication to private parties and technical expertise to both political branches of the U.S. government. Less often remembered, however, the ITC has also scored wins in advancing American interests and free trade when aggressors have challenged both by force.

As it has during international crises before, from World War I to World War II, to the wars in Korea and Vietnam, and the Cold War and the global war on terror, the ITC stands ready to respond to today’s bipartisan call. How, exactly, does the ITC help?

{mosads}The ITC has two main adjudication dockets. The Title VII docket comprises claims that certain imports are entering the U.S. market at less than fair market value. The Section 337 docket comprises claims that certain imports into the U.S. market aren’t following the basic rules of competition, like those governing intellectual property (IP) rights and market structure and integrity.

When it comes to the Title VII docket, people rightly ask why we should not just let foreign governments subsidize their producers and engage in dumping. Doesn’t this give American companies and consumers cheaper goods — at foreign governments’ expense?

The problem is, when foreign governments improperly subsidize their own domestic champions or foreign firms engage in predatory pricing, they sometimes strategically target our industries and force our companies out of the market. Weakening our supply chains in critical, security-sensitive industries, they might put money in American pockets in the short-term, but their long-term aim is to impose monopoly control and even undermine our national security. Even the most ardent free market advocates recognize the need to safeguard the structure of the free market.

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And let’s be clear: A domestic industry does not get a remedy at the ITC just on its own say-so. It must demonstrate, with evidence, that the improper foreign conduct has truly injured a U.S. domestic industry. Experts rightly debate how stringent the legal test should be for making an injury determination, and, as the law stands, the test is not hard to satisfy. But the bipartisan call from Sens. Portman and Brown helpfully reminds private litigants to provide careful grounding to their claims in the factual record when they come to the ITC. 

As to the section 337 docket, China and Russia openly flout commitments to respect intellectual property rights. It is therefore time to reaffirm the joint commitments we and our friends and allies made after World War II under the General Agreement on Trade and Tariffs (GATT), and in particular under the provisions on the Trade Related aspects of Intellectual Property (TRIPS). The one natural resource uniformly distributed across geographic boundaries, cultures, religions and political preferences of people is the power of the human mind. We depend on our IP laws to get that natural resource to market for the benefit of humanity at large.

{mossecondads}The ITC’s section 337 docket also fosters market structure and integrity by helping to police rules of the road around false advertising and collusion. The free world is responding to Russia’s aggression against Ukraine with new sanctions, disclosure and other regulatory regimes. This response is adding complexity to the legal landscape, yet it is also adding tools to counter aggressors and those who give them aid and comfort. Both the complexity and the additional tools increase the opportunities for businesses to help police the playing field through the section 337 docket. 

Portman and Brown should be applauded for calling on the ITC to reprise its past successes in enforcing U.S. trade laws transparently and on the record. With its unique resources and procedures, and with parties who avail themselves of its remedies to protect their own private rights, the ITC can play a significant role in answering the challenges to security that our nation faces today. 

The Hon. F. Scott Kieff is the Fred C. Stevenson Research Professor of Law at George Washington University Law School. He served as a commissioner of the U.S. International Trade Commission from 2013-17. Dr. Thomas D. Grant is a fellow of the Lauterpacht Centre for International Law at the University of Cambridge. He served as senior adviser for strategic planning in the U.S. Department of State’s Bureau of International Security and Nonproliferation from 2019-21 and is author of “Aggression Against Ukraine: Territory, Responsibility, and International Law” (2015).