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Wiley Rein Issues White Paper in Response to the EU Legal Justification for Steel and Aluminum Retaliation

May 8, 2018

Washington, DC —Wiley Rein LLP issued a white paper today responding to the EU’s proposed legal justification for steel and aluminum retaliation after President Trump’s March 8 imposition of tariffs on those materials. The tariffs were implemented under Section 232 of the Trade Expansion Act of 1962, which allows the President to adjust imports in the interests of national security.

The paper is authored by Alan H. Price, chair of Wiley Rein’s International Trade Practice, and partner Robert E. DeFrancesco III. The firm represents domestic steel and aluminum producers in trade remedy proceedings before the U.S. government and in international venues.

After tariffs on steel and aluminum were initially imposed, subsequent actions taken by President Trump allowed for temporary exemptions for several countries, including an exemption for the 28 EU countries through the end of May. While other countries have negotiated voluntary export restraints, the EU has taken the position that because it believes that the President’s action is a safeguard, the EU countries are entitled—under the World Trade Organization (WTO) Safeguards Agreement—to compensation. Under the Safeguards Agreement, the EU claims it can “retaliate” within 90 days against the United States.

The Wiley Rein white paper, however, counters this legal claim:

“Nothing in the WTO Agreement permits the EU to take any such action. Indeed, Article 11(1)(c) of the Safeguards Agreement itself states that it does not apply to actions taken under any other provision of the suite of WTO agreements. There is an express national security exemption under the WTO agreement. Therefore, according to the plain text of the Safeguards Agreement, the EU cannot take action thereunder. Furthermore, the EU is not permitted to unilaterally reinterpret the U.S. statute and how it operates.

To read the white paper, please click here.