Trade and Business Law in the USA

Overview
- common law (except Louisiana) - federal law - national and international issues e.g. interstate commerce - state law - local e.g. commercial and corporate law - more codified commercial law than Canada e.g. UCC - most litigious society in world - a tool of business competition - punitive damage awards and treble damage awards in civil suits - U.S. laws extra-territorial (FCPA)

Agencies Regulating Business in U.S.
Imports and Exports: - U.S. Trade Representative - negotiates agreements - Dept. of Treasury - U.S. Customs Service - Bureau of Alcohol, Tobacco & Firearms - Court of International Trade - International Trade Commission - Food and Drug Administration - US Drug Agency - Consumer and Corporate Affairs

Agencies Regulating Business in U.S. (cont’d)
Monopoly and Antitrust: - Federal Trade Commission (FTC) - Antitrust Division, Dept. of Justice Stock Exchange: - Securities and Exchange Commission (SEC) Financial Institutions: - Federal Reserve System - Federal Deposit Insurance Corporation Food and Drugs: - Food and Drug Administration Pollution Control: - Environmental Protection Agency (EPA) Interstate Transportation: - Interstate Commerce Commission (ICC) Interstate Communications: - Federal Communications Commission (FCC) Patents and Trademarks: - Patent and Trademark Office Copyrights: - Copyright Office - Library of Congress

Import Process
H.S., GATT ‘94 Customs Valuation & Origin Documentation: 1/ Entry/Immediate Delivery Form 2/ Entry Summary Form 3/ Certificate of Origin (or textile declaration) 4/ proforma, commercial invoices 5/ waybills, bills of lading 6/ packing slips - B13 not required (with exceptions)

Customs Duties
1/ H.S. 2/ Tariff Schedules Rules of Origin: NTR (MFN) - substantial transformation - name, character, use NAFTA - H.S. change + GSP (GPT) - substantial transformation + 35% manufacturing local value Textiles & apparel 3/ Value for Duty Appeals: - U.S. Customs - Court of International Trade - U.S. Court of Appeals - advanced rulings from U.S. Customs - Automated Commercial System - but inconsistent interpretation of regulations

US Export Controls
- more strict, complex & extraterritorial - Export Administration Act - Dept of Commerce: Bureau of Export Admin - Munitions Control Act - Dept of State - Dept. of Energy (nuclear) - ECCN: Critical Commodities, Area Control Lists - criteria - national security - foreign policy - short supply - nuclear non-proliferation - US export laws control goods, services and ideas - export goods = outside country - export ideas = whenever transferred to foreign national even if in USA - need export license to sell to restricted country national in USA or to hire a nonresident alien to work on restricted technology

in USA

Business Impact
- US firms often at competitive disadvantage

Extraterritoriality
- need U.S. export permit to export U.S. or foreign products from foreign countries if includes significant U.S. parts or technology

Dumping, Countervail & Safeguards
Overview: - GATT ‘94 Agreements, but - a political tool used effectively to curb foreign competition - the role of Congress - often implemented contrary to spirit, or law of WTO, NAFTA -e.g. Byrd Amendment - gives countervail duties to US plaintiffs, contrary to WTO, and only partial refunding of countervail duties

Non Tariff Barriers
Laws: - Anti -Dumping Act, Trade Agreement Act, Unfair Trade Practices Act Process: - US Dept of Commerce (ITA) investigates “normal value”, “undertakings” - US International Trade Commission determines “material” injury - provisional, permanent and retroactive duties Omnibus Trade Act , Super 301 - threaten retaliation against any country not removing trade barriers to U.S. goods - mandatory retaliation if not resolved Product Markings: - U.S. Customs, Federal Trade Commission - country of origin on all products, packing, product literature (some exceptions - “J” List) Packaging and Labeling: - most products require specific labeling - 50 US agencies (FDA most regs.) - often complex, inconsistent, US-biased - Americanize spelling and measurement Consumer Safety: - Consumer Product Safety Commission - ads and promotions must conform to US law - warranties

Competition Policy and Antitrust
- most stringent in world - misleading advertising - price fixing - predatory pricing - bid rigging - price discrimination - creation of cartels, and monopolies through mergers and acquisitions - Sherman Antitrust Act - restraint of trade - Robinson-Patman and Clayton Acts - price discrimination - Federal Trade Commission act - unfair competition or deception in competition

Intellectual Property
Coverage: - patents - 20 years - trademarks - indefinite - copyrights - life of author plus 50 years To apply: 1/ Patent: - Patent and Trademark Office, Arlington Va. - written description, fee 2/ Trademark: - Patent and Trademark Office - registration not necessary but advised - written description, fee 3/ Copyrights: - Copyright Office - registration not necessary but advised