During the recent presidential campaign, President-Elect Donald Trump said “we can’t continue to allow China to rape our country” and vowed to aggressively fight back against China’s unfair trade practices. Trump promised his trade agenda would:
The above proposed trade actions raise many legal and policy questions. Can a President Trump really do those things? Should he do those things? Will such actions achieve anything? Pundits, academics, lawyers, and ultimately U.S. judges will eventually weigh in on these questions for real, but China is not going to wait for the resolution of these questions. If the United States engages in some or all of the above Trump-proposed actions, China will no doubt retaliate with its own actions.
In this post I discuss three fairly likely ways China will respond attempts by a Trump administration to “get tough on China.
1. China’s AD/ CVD Actions. Few realize that China has already initiated its own antidumping (AD) and countervailing duty (CVD) actions against companies from the United States and other countries. Having been on the receiving end of the bulk of AD/CVD actions worldwide, China has incorporated into its own AD/CVD procedures some of the most effective techniques and practices from the AD/CVD investigations conducted by the U.S., EU, and other jurisdictions on Chinese companies. For example, China’s AD questionnaires have burdensome and comprehensive sales and cost data requests, similar to, and even in some cases, exceeding US practice. China’s AD/CVD margin calculation methodologies are as non-transparent as the EU’s margin calculations. China has even copied many of the annoying administrative practices of the US and EU ,such as giving only limited extensions, disregarding national holidays, and insisting on burdensome filing requirements, like requiring all documents filed be fully translated into Chinese. It’s accident that my law firm’s trade team works so closely with our China law team.
Though, most of China’s AD/CVD actions have so far been largely symbolic and usually initiated in response to specific U.S. actions against China. Though many of China’s AD/CVD cases have involved well-known companies (Corning, Dupont, Tyson Foods, and Cadillac, to name some), most have had only limited economic impact. However, more recent China AD/CVD actions are starting to have greater economic impact. After the US and EU filed AD/CVD actions against Chinese solar cells and modules in 2011, China initiated its own AD/CVD actions against solar-grade polysilicon from the United States, EU and Korea. China’s AD/CVD action effectively closed off the largest export market for US polysilicon producers, and was a significant contributing factor to REC Silicon’s decision to shutter its polysilicon production operations in Washington and Montana. REC Silicon just this month blamed China trade actions for its less than stellar third quarter revenues.
In late September, 2016, China announced preliminary AD duties of 33.8% and CVD duties of up to 10.7% against imports against U.S. distillers’ dried grains (DDGS), an ethanol by-product used as animal feed. The U.S exported $1.6 billion of DDGS to China in 2015. China also apparently also has an AD/CVD action prepared against U.S. soybeans exports to China and is just waiting for the right time to initiate that action. The U.S. is the largest producer and exporter of soybeans and U.S. companies exported over $10 billion of soybeans to China in 2015. If the Trump Administration gets tough against China, US soybean producers likely will incur massive collateral damage in an escalating US-China trade war.
2. China Antitrust Enforcement. China may also respond against U.S. anti-China trade actions by stepping up its enforcement of its antitrust laws against U.S. companies. China implemented its anti-monopoly law only in 2008, but it has become increasingly active in reviewing mergers and investigating abuse of market dominance. In February 2015, Qualcomm paid a $975 million fine to settle Chinese antitrust allegations of having abused its market dominant position. This year, China’s antitrust authorities have targeted pharmaceuticals, medical devices, vehicle manufacturing, ocean shipping, and smart manufacturing as industries of particular concern. Because these industries are already prioritized for extra scrutiny, China could relatively easily ramp up its antitrust enforcement actions against U.S. companies in these industries to retaliate quickly against U.S. trade actions against China.
3. China Criminal Enforcement. China might also retaliate against U.S. companies by more strictly enforcing its criminal laws against U.S. company officials in China. Earlier this month, China detained more than a dozen employees of Crown Resorts, Ltd, an Australian gambling company, and it will be pursuing criminal charges against at least three of them. See Foreign Executives Arrested in China: Please Do NOT Look Away. No one knows where and when the next China anti-corruption effort will occur, but foreign companies doing business in China in important or politically sensitive industries need to be extra cautious. Company officials need to know which way the wind is blowing in China, particularly when enflamed U.S. trade rhetoric may trigger a Chinese backlash. Our China lawyers are already hearing rumors that China is going to start criminally pursuing those who use independent contractors in China but have no company in China and pay no employer or income taxes in China. China might be planning this sort of action against smaller companies as a sort of warning shot against the United States. For more on what this situation looks like, check out China’s Tax Authorities Want You.
Though Trump has talked a lot about China, China itself has so far taken the high road, noting that U.S.-China trade relations are “too big to fail.” China appears to be waiting to see if Trump’s actions will in fact harm China. For example, the United States’ abandoning the Trans-Pacific Partnership (the TPP) has actually allowed China to step in and fill the TPP void by promoting its own Regional Comprehensive Economic Partnership trade agreement (RCEP).
If the United States starts engaging in trade tactics China considers excessive, it is naïve to think China will do nothing in return. China has a home market that is in many cases the biggest export market for US producers and China has many options under its own laws to directly or indirectly retaliate against U.S. interests. Anyone wishing to do business in China or with China should consider the risks of being targeted for retaliation in a spiraling US-China trade war and they should start preparing to try to minimize the fall-out from that.
We will be discussing the practical aspects of Chinese law and how it impacts business there. We will be telling you what works and what does not and what you as a businessperson can do to use the law to your advantage. Our aim is to assist businesses already in China or planning to go into China, not to break new ground in legal theory or policy.