[Note, this article was originally posted on January 12 to the Global Trade Law Blog and has been updated to reflect recent events.]

President Trump is making moves to renegotiate NAFTA, but has indicated that if negotiations fail, the United States may give notice of its intent to withdraw from the Agreement. Once in office he reiterated his comments from the campaign trail, stating if Mexico and Canada do not agree to a sufficient renegotiation, then he would submit notice under Section 2205 of NAFTA that the U.S. would withdraw from the Agreement. While the President is capable of writing, signing, and sending (or possibly tweeting) such a notification, that notification alone would not have a legal significance because withdrawing from NAFTA, ab initio, is not a power accorded the President.

The Agreement and underlying laws propose a number of paths by which the President may effectuate withdrawal from NAFTA. However, each of those paths require congressional cooperation or an act by Canada or Mexico to which the President may respond. Negotiating (or renegotiating) the Agreement is squarely within President Trump’s authority, though Congress would then need to implement the terms of the new or amended agreement.


Continue Reading The Undoing Project – Why NAFTA Can’t Be Undone, But Can Be Re-Done

On November 14, 2013, the U.S. Department of Justice announced a False Claims Act settlement with Basco Manufacturing Company, a maker of shower enclosures, for $1.1 million related to misstatements on U.S. Customs and Border Protection (CBP) entry forms.  The alleged misstatements were intended to allow the company to avoid antidumping duties (ADD) and countervailing duties (CVD) on aluminum extrusions used in its products that were actually from China, but transshipped through Malaysia in an attempt to avoid the duties.  The settlement against Basco does not resolve the entire matter, as Basco was one company of many involved in an alleged conspiracy to conceal the Chinese origin of the aluminum extrusions at issue.  Aspects of the settlement highlight certain risks posed by the False Claims Act that compound general U.S. enforcement of trade laws, and a reminder that diversion for inbound products to the United States may be a significant compliance issue of which companies should  be aware.
Continue Reading A Peek Around the Curtain: A “Reverse” False Claims Act Settlement for Avoiding Customs Charges