The US-China Cold War Starts Now: What You Must do to Prepare

Since the very beginning of US-China trade negotiations we have been unequivocally negative on the likelihood of a deal and we have taken huge amounts of heat for that, via hate e-mail, online, and even from our own clients, some of whom have accused us of being too cynical or too negative about China. Our response to all of this has been consistent. We just kept saying that NOW was (and it still is!) the time for foreign companies (especially those that sell their products to the United States) to work hard on reducing their China footprint.

We first publicly sounded this warning call back in October, 2018, in China, the United States and the New Normal, though we had been warning our own clients months before this for months. This “New Normal” post was an attempt to get in the face of those who had been sending our lawyers hate mail because we had in a September 2018 post predicted manufacturing orders from China were declining and would continue to decline:

I got a badly written and vituperative email yesterday in response to my post, On the Impact of China Tariffs: Is This a Dead Cat Bounce? In my post I predicted a large decline in manufacturing orders from China, starting in the next few months. The email accused me of “hating China” and wanting “to impede its peaceful” rise and of being “jealous of its progress.” All this because we have been writing of late how so many of our law firm’s own clients and so many others are leaving China, or looking to leave China. We have been getting quite a lot of these sorts of emails lately.

I then wrote about how our reporting on what we were seeing and our advice for what to do had (and still has) absolutely nothing to do with our own personal feelings about China:

Guess what people. Our posts about foreign companies leaving China have nothing to do with our feelings regarding China and everything to do with what we are hearing and seeing. Our statements of fact about companies leaving China are not being made out of animus to China, but out of a desire to tell the truth and help foreign companies figure out what to do about China going forward. Life would be far easier and economically lucrative for us if foreign companies were not running for an exit from China. But from what we see, they are.

We are telling the truth about companies (not just American companies) looking to leave China because part of what we do is help companies legally fulfill their goals and their plans. My firm’s international lawyers help companies negotiate their exits from China and we help companies figure out where to go instead of or in addition to China. We also help companies looking to set up in other countries, do deals involving other countries, protect their IP in other countries, and draft necessary contracts in other countries. In the last few months our international lawyers have been being kept nearly as busy with countries like Vietnam, Cambodia, Indonesia, Thailand, Malaysia, Turkey, India and Pakistan as with China.

And then, for the first time, we wrote about how no matter the resolution to the US-China trade war, things would NOT revert back to the way they had been. We dubbed the present tense situation between China and the United States as the New Normal.”

The above is but an introduction to what we see as China’s diminished future for foreign companies. Since pretty much the inception of the US-China trade war we have been saying that we do not see its end because we have always seen it as more than a trade war. At first, we saw the US tariffs as an effort by the United States to get China to “open up” and “act right” on things like the internet and IP. But because we did not see China changing on these things, we did not see the trade war ending.

Vice-President Pence’s speech on China earlier this week has only reinforced for me that the trade war between China and the US will not be ending any time soon, if ever. The New York Times has called that speech the Portent of a New Cold War between the United States and China and China’s own Global Times wrote an article entitled, Pence speech shows Washington’s tougher policy on China. Don’t blame us. We are just the messengers. Things are getting very tough between China and the United States right now and the trade war is just a symptom of that, not the disease.

The United States is aggressively and unabashedly doing what it can to isolate China and to remove it from the world of international trade. The new free trade agreement between the United States and Canada is further proof of this as it essentially blocks Canada and Mexico from engaging in free trade with China. See What Trump’s new trade pact signals about China. Word is that shutting out China is going to become a regular thing in all new U.S. trade agreements. See US Commerce’s Ross eyes anti-China ‘poison pill’ for new trade deals. Will the EU and Japan and Latin America play ball on this? I predict that most if not all of them will.

So yes, the above is why we will continue to write about what North American and Latin American and European and Australian businesses should be doing to deal with the new normal regarding China. We are writing these things because we value our credibility and because we presume our readers value our no-holds barred advice — threatening emails or not.

We then listed out our previous blog posts on what foreign companies should do in light of the then new tariffs imposed against China (much of which information is relevant for the tariffs that will go into effect at 12:01 a.m. THIS Friday:

• China Tariffs and What to do Now, Part 1
• China Tariffs and What to do Now, Part 2 
• China, Wine, and Tariffs | China Law Blog
• China/U.S. Tariffs and How to Fight Back 
• On the Impact of China Tariffs: Is This a Dead Cat Bounce?
• U.S. Tariffs Against Vaping Imports from China: Don’t Let Your Industry go up in Smoke

We then noted how the opposition to our claims of foreign companies looking to leave China had so far been bereft of facts: “So far nobody has written to factually dispute that many (most?) foreign companies are looking to leave and/or are leaving China, but we certainly would welcome such information if you have it!”

And so began our steady stream of posts exhorting companies to look more closely at countries other than China.

The reactions to these exhortations from our own clients has been the most interesting, because those have ranged all over the map. Many have insisted that there would be a US-China trade deal and their reasoning was usually something like, “it only makes sense for their to be a trade deal,” believing the war was a purely monetary one and once the two countries were truly pushed up against a wall, the Chinese side would agree to buy x billion dollars more of soybeans and other US products and services and the United States would then walk away. These clients did not want to hear our incredibly long explanations as to why we did not believe this to be the case.

But some of clients really listened and I am going to highlight two of them now, without discussing enough to reveal who they are. I chose these two companies because they both “played” their cards so wisely and because they are such completely different companies.

The first company is a really big U.S. company that makes electronics and I cannot get more specific than that. The head of this company “loves” geopolitics and from day one he was convinced there would not be a quick deal between the United States and China and, most importantly, no trade deal would solve the issues between China and the U.S. and problems between the two countries would be ongoing for decades. This person declared that his company would within six months reduce its purchases from China by 50% and he wanted my law firm’s help to achieve this. What he wanted from us was the following:

1. Help in deciding the countries to target for its purchases.
2. Help in figuring out how to pressure its existing China-based suppliers to move outside China.
3. Help in figuring out whether to manufacture on its own in countries outside China.
4. Help in protecting its IP outside China.
5. Drafting its manufacturing contracts with the companies outside China.
6. Help in making sure that its products that would be made outside China would truly and legally qualify as having been made outside China.

Our lawyers were thrilled to work on a project(s) with such a wide scope, but I have to confess now (I have confessed this to the client previously so no worries there) that I did not believe this company’s 50% goal was achievable, in large part because of the nature of this companies products: electronics. If it had been shoes or clothes or furniture or even doors or toasters I would have thought it could move 100%. But electronics, no way.

But this client has now moved about 80% of its production outside China and it has made clear to its few remaining China suppliers that if they cannot supply our client with their products from factories outside China (and soon), our client will cease to buy from them. In other words, this company — in the electronics industry — will soon be buying all of its products from outside China. And what has this move out of China done for this company? It has improved its positioning when making sales because it can and does tell potential buyers that its products do not come from China and therefore its pricing is not dependent on which way the US-China trade war is blowing.

The second company is a start-up that makes children’s products. This company initially came to us for a China NNN Agreement. I asked whether his products would be subject to any of what I call the Trump tariffs and he said yes. I then asked why then he was having them made in China, rather than Thailand (I picked Thailand both because it seemed like a really logical product to be made in Thailand and because a number of our lawyers have a lot of experience doing manufacturing deals with Thailand — we even have a lawyer and a Thai Business Specialist who speak Thai. His response to my Thailand suggestion was very positive, but he said that he didn’t even know where to start with Thailand. I said that we could help pretty much every step of the way and we did and the new products will soon be coming to market, with costs LESS than they would have been in China and 100% tariff free. I am guessing this client too will use its made-in-Thailand-ness as a selling point, because let’s face it, American and European consumers tend to have a much better “feeling” about Thailand than they do about China.

Let’s now though talk about the new (permanent?) impasse in US-China trade talks and how we got here. I’ve already heard from friends and clients who just could not wait to remind me that they too predicted this would happen. Many of these people point out how “what China did here is exactly what __________[Chinese company] tried to do to us.” And it is. But what exactly did China try to do to the US and why was that ZERO surprise to those who have a lot of experience negotiating with Chinese companies? What China tried to do was try to completely change an agreed-upon deal at the very last minute, believing that the Western side (in this case the United States) was so desperate for a deal (any deal) that it would go along. We have written about this tactic countless times on here and our recommended tactic for dealing with it is just what the United States has done. Stand firm or get even tougher. See Negotiating With Chinese Companies: Walk, Don’t Look Back. 

It is exactly this sort of common negotiating tactic, among a whole host of other things, that has caused us to be skeptical of the US and China doing a trade deal and skeptical of any trade deal changing much if anything in any event.

Literally the day before President Trump’s tweet regarding his plan to institute a 25% tariff on another $250 billion of Chinese goods, we wrote a long piece, entitled The US-China Trade War: Winter is Coming, in which we wrote how no trade deal between the United States and China will change much between them and how the trade war will merely go forward on other fronts. We concluded that post (as we have so many other posts) by exhorting foreign companies to look closely at their own business relationships with China:

I linked to this “Winter is Coming” post on Linkedin where it has been viewed by more than 10,000 people and has engendered a healthy discussion regarding the US-China trade war. I urge all of you to go there and join the discussion.

Obviously much has happened in the last couple days between the US and China and the below is my initial attempt to put it all into perspective. I say “initial” because my views will no doubt change as more things occur and as I have time to discuss with others what has just occurred and will occur.

My first thought based on the last few days is that this trade war is at its core a fight between the United States and China for who determines from where products are purchased. I am obviously not the first person to say this but I have to admit that this did not really hit home for me until yesterday One of my law firm’s Spain lawyers off-handedly mentioned something along these lines to me months ago, but it took me until now to realize how true it is. Both President Trump and President Xi are using their presidential powers to influence global buying decisions. Okay, I agree that when I say it like this it seems obvious, but I’m not so sure that it was or even is until you hear the following explanation. But hey, if I’m all wrong on this, just let me know — as the saying (sorta) goes: “there are no bad ideas here.”

Earlier this week I read how President Xi controls China’s economy. Well duh, right. No, I mean like really controls it, down to just about every nib. China wants to pay Canada back for Canada’s abiding by international law in arresting Huawei CFO Meng Wanzhou. See The Huawei Indictments are the New Normal. China chooses to do this by essentially telling its businesses that they better not buy any canola oil from Canada and, pretty much just like that, they don’t. This is on top of China already having taken hostage two Canadians and snap-deciding to sentence to execution another Canadian whose previous sentence was 15 years in prison. In other words, President Xi and those at the highest echelon of China’s government can snap their fingers and thereby create a new business reality.

Lacking in such nearly unmitigated power, but wanting that same power for himself, President Trump has been using tariffs to essentially accomplish the same thing. He has been raising tariffs against China and then negotiating with China and then threatening to raise tariffs against China and then raising tariffs against China, all the while pressuring various U.S. governmental bodies to increase their pressures against China products via non- tariff actions like anti-dumping and countervailing duties (AD/CVD). See Yet Another International Trade (AD/CVD) Petition Against China: This Time it’s Metal File Cabinets.

Make no mistake about it, President Trump is doing whatever he can to convince American companies — really any company from anywhere in the world that sells its products to the United States — to stop doing business with China. In ‘We’re freaked’: Trump startles US businesses with fresh tariff hike, CNN does a great job explaining (I think unintentionally) how this all works.

The CNN article focuses on how Trump’s last minute tariffs will harm U.S. businesses that did not prepare for this:

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.