USCIB Launches Competition Webinar Series; First One Focuses on China

The USCIB Competition Committee launched a new webinar series for 2022 titled “Updates in International Competition Law and Enforcement,” spotlighting antitrust developments in key jurisdictions around the globe.

The first event was held last week, focusing on China antitrust regulation and enforcement and featuring experts from the International Chamber of Commerce (ICC) China National Commission: Dr. Hao Zhan, managing partner at Anjie Law Firm Beijing and ICC Competition Commission regional ambassador to China, Susan Ning, senior partner and head of compliance department of King & Wood Mallesons in Beijing, and Song Ying, antitrust partner at Anjie Law Firm Beijing.

“We hope these webinars will benefit USCIB members, giving them the opportunity to learn from competition experts from around the globe on issues critical to their business,” said USCIB Director Investment, Trade and China Alice Slayton Clark.

Zhan discussed recent fundamental changes in China’s antitrust system, with consolidation in 2018 of three authorities into the State Administration for Market Regulation (SAMR), a centralized, vice ministry level authority with more power to promulgate and enforce competition rules and laws. According to Zhan, this has ushered in a new era of antitrust enforcement in China with the establishment of the State Anti-Monopoly Bureau and more cases and higher penalties targeting mostly the media, finance, technology internet platform and pharmaceutical sectors.

Ning outlined the Anti-Monopoly Law, draft amendments released in October 2021 and the anti-monopoly guidelines on the platform economy enacted in February 2021. She discussed how the trend in China is to focus antitrust efforts on the platform economy, focusing on the role of algorithms and platform technologies being misused to exclude or coordinate with others in the marketplace.  Vertical, horizontal and hub and spoke relationships are all targeted. She also discussed the behavior patterns for big data killing, when platforms discriminate in pricing practices using algorithms to differentiate consumers and customary spending costs and described a few high-profile penalty decisions imposed on platform operators who hindered the flow of consumers between platforms – “picking one from the two” problem.

Finally Song described the recent history of anti-monopoly law development in China, highlighting a few of the key changes sought through AML amendments, most of which fall under merger control, addressing no safe harbor, aiding and abetting (liability of third parties), stop the clock, and higher penalties for gun jumping, for example.

Clark plans to host the next webinar in the spring, spotlighting European or Latin American antitrust enforcement practices.

USCIB Participates in First-Ever Virtual ILO Labor Conference

The 109th International Labor Organization’s (ILO) International Labor Conference (ILC) concluded in December 2021, and USCIB once again actively participated in negotiations as the U.S. Employer Representative. Of special note, USCIB Senior Counsel Ronnie Goldberg was elected and served as Vice President (Employers) of the conference. USCIB President and CEO Peter Robinson, Vice President for Corporate Responsibility and Labor Affairs Gabriella Herzog, and Senior Counsel and ILO Governing Body Member Tom Mackall also participated on behalf of business.

According to Herzog, the ILC is the leading global forum for discussion of key social and labor questions. Each year, Employer, Worker and Government delegates gather at the ILC to negotiate and to adopt international labor standards. Held virtually for the first time in the ILO’s 100+ year history, the 2021 ILC was conducted over two online sessions – one in May/June, and one in November/December. Due to the pandemic, the ILC was not held in 2021.

Among the outcomes across the two 2021 sessions, the ILO’s tripartite constituents adopted a Global Call for Action for a Human-Centered Recovery from the COVID-19 crisis, an emergency resolution on the situation in Myanmar, a resolution concerning the second recurrent discussion on social protection (social security), and two sets of conclusions and reports on Skills and lifelong learning  and Inequalities and the world of work. This is in addition to regular proceedings, such as the Committee on Application of Standards and adopting the ILO’s program and budget.

“USCIB was gratified that the ILO was able to pivot and continue the important tradition of hosting the ILC, albeit virtually,” said Herzog, “and we look forward to the end of the pandemic and the safe return to in-person tripartite social dialogue at the ILC for the ILO and its 187 Member States.”

Mastercard Wins Coveted State Department “ACE” Corporate Excellence Award for 2021

In a virtual ceremony on December 8, Secretary of State Tony Blinken announced the U.S. company winners of the Department’s 2021 Award for Corporate Excellence (ACE). For the sixteenth time in the twenty-two years that the ACE award has been presented, a USCIB member company is among the winners.

This year, Mastercard received the ACE award in the multinational company category for “Economic Inclusion,” recognizing its path-breaking work in India to expand financial services to under-banked communities. Mastercard and the U.S. company winners in other categories were honored for their contribution to economic and social progress around the world and the advancement of American values. Secretary Blinken, the U.S. Charge d’Affaires in India, and senior State Department economic officials participated in the virtual ceremony.

Mastercard CEO Michael Miebach accepted the award on behalf for the entire Mastercard team and delivered brief remarks. The State Department website includes details on the award and video link to the ceremony. Mastercard’s public statement also includes interesting details.

In the twenty-two years the State Department has been presenting the ACE Award, sixteen times at least one USCIB member company has been honored. Last year The Coco-Cola Company was a winner for its impressive efforts for Women’s Economic Empowerment in Azerbaijan. In 2019, PepsiCo and Procter & Gamble were among the winners.

“We are delighted that again this year, the State Department’s coveted ACE award winners include a great USCIB member company,” said USCIB President and CEO Peter Robionson. “This is not a coincidence. USCIB members are widely recognized here at home and around the world not only as successful business and leaders in their respective sectors but also as representing the best of American business and our ability to spread American values of inclusion, respect, enlightened personnel policies, investing in employees and communities and responsible stewardship of the environment.  We congratulate and commend Mastercard on its imprssive effots in India and beyond and welcome them to a very impressive club of USCIB member winners of the ACE Award.”

USCIB Statement on the Summit for Democracy

Washington D.C., December 13, 2021—The United States Council for International Business (USCIB) welcomes the recent Summit for Democracy and reaffirms our long-standing support for the critical importance of democracy and rule of law as foundational pillars of well-functioning and inclusive societies.

We agree, as the Biden Administration rightly stated, “that both history and overwhelming data show that societies that respect and defend democratic institutions, the rule of law, human rights and fundamental freedoms, and gender equality are more stable, prosperous, secure and better equipped to confront global challenges.”

“Businesses are key actors in democratic societies, contributing to civic and economic empowerment of people and public institutions, while advancing growth and equality,” said USCIB President and CEO Peter Robinson. “Importantly, business and employer membership organizations are themselves democratic institutions and a core part of the fabric of democratic societies.”

USCIB advocates for good governance, rule of law, anti-corruption and anti-bribery frameworks and other measures of responsible governance, as being among the required elements of the enabling environments for trade and investment that bring growth and opportunity. Indeed, UN Sustainable Development Goal 16 “Peace, Justice and Strong Institutions,” makes clear the key role that governance and the rule of law play in promoting peaceful, just and inclusive societies and in ensuring sustainable development.

As the U.S. affiliate of the International Chamber of CommerceBusiness at OECD (BIAC) and the International Organization of Employers, USCIB joins with global business and employer peers in advocating these policies in international policy fora, including the Organization for Economic Cooperation and Development (OECD), the International Labor Organization (ILO), and the United Nations. As an example, we note in particular USCIB’s engagement through BIAC to support the recent successful launch of the OECD Public Integrity Indicators Portal and the 2021 Recommendation for Further Combatting Bribery of Foreign Officials.

Finally, USCIB and its members reiterate their firm belief that alongside national rule of law and good governance, based on democratic principles, multilateral cooperation is the single most powerful vehicle to achieve an inclusive and sustainable path to dealing with the enormity of the challenges facing society today. Business is a necessary voice in that effort, and USCIB will continue our work to engage meaningfully and constructively as a leading actor at home and within the multilateral organizational system to advance democratic principles and rule of law.

About USCIB

USCIB promotes open markets, competitiveness and innovation, sustainable development, and corporate responsibility, supported by international engagement and regulatory coherence. Its members include U.S.-based global companies and professional services firms from every sector of our economy, with operations in every region of the world. As the U.S. affiliate of the International Chamber of Commerce (ICC), the International Organization of Employers (IOE) and Business at OECD (BIAC), USCIB provides business views to policy makers and regulatory authorities worldwide and works to facilitate international trade and investment. More at www.uscib.org.

USCIB Presses USTR for Section 301 Tariff Relief

USCIB sent a letter to the United States Trade Representative (USTR) Katherine Tai urging for full reinstatement of the Section 301 product exclusion process and calling for a negotiated solution to put an end to the tariffs.

According to USCIB Director for Investment, Trade and China Alice Slayton Clark, the letter was dispatched December 1 as USCIB’s response to the recent USTR request for comment on the possible reinstatement of certain product exclusions subject to the Section 301 investigation of China’s acts, policies, and practices related to technology transfer, intellectual property and innovation (86 FR 56345).

“While reinstatement of the product exclusion process is an important first step, we urge USTR to grant exclusions to all 549 products currently under review, to broaden the Section 301 product exclusion process, and to intensify high level engagement with the Chinese government and U.S. allies on a negotiated solution that ends these harmful tariffs,” said Clark. The letter advocates for retroactive recuperation of duties, long term extensions and a full and transparent Section 301 product exclusion process. It also urges caution when considering any future unilateral actions or remedies, as Ambassador Tai has indicated an interest in launching a new Section 301 investigation into Chinese industrial subsidy policies.

The letter further emphasizes that, while USCIB remains wholly committed to U.S. efforts to confront unfair trade practices, “we are concerned that the Section 301 tariffs imposed against Chinese imports have done more harm than good. Today, the tariffs cover over $370 billion in goods, levying tariffs of up to twenty-five percent on almost every Chinese import into the United States, including USCIB member products across the entire scope of the Harmonized Tariff Schedule of the United States (HTS). The tariffs have raised the cost of doing business in the United States and increased prices for U.S. families without addressing or improving the practices identified by the Section 301.” This outcome runs counter to the Biden Administration’s Build Back Better agenda and goals for U.S. economic recovery.

USCIB Competition Group Meets With FTC Commissioner, Discusses US Antitrust Developments

The USCIB Competition Committee convened virtually November 12 for its semiannual meeting to discuss updates on antitrust at the national and international levels. Federal Trade Commissioner Noah Phillips served as featured speaker, providing personal insights on the shift in approach of the Biden Administration with respect to merger and acquisition activity, enforcement, rulemaking authority, treatment of labor markets, review of the horizontal and vertical merger guidelines, the July 2021 executive order on promoting competition and the new White House Competition Council.

Commissioner Phillips was appointed to the FTC in April 2018, having previously served as Chief Counsel to Senator John Cornyn (D-TX), on the Senate Judiciary Committee, and in various Washington D.C. and New York law firms. According to USCIB Director for Investment, Trade and China Alice Slayton Clark, Commissioner Phillips interactively engaged with the Committee by answering questions.

The Committee was also updated on the upcoming meetings and activities of the OECD and Business at OECD (BIAC) by Jane Antonio and John Taladay of Baker Botts. BIAC has prepared feedback on four OECD papers under discussion at recent OECD Competition Committee meetings: competition in books and e-books, environmental considerations in competition enforcement, ex-ante regulation and competition in digital markets, and economic analysis and evidence in abuse cases. The OECD meetings will be followed by the annual OECD Global Forum on Competition December 6-8.

USCIB Competition Committee Chair Dina Kallay (Ericsson) and Vice Chair Jennifer Patterson (Arnold & Porter), updated USCIB members on activities at the International Chamber of Commerce (ICC), where they serve as Vice Chairs on the ICC Competition Commission. They discussed the ICC’s Antitrust Compliance Toolkit and its Small and Mid-Size Enterprises (SME) version, as well as recent efforts to update the 2018 leniency manual. Both put a call out for interested USCIB members to become directly involved in the ICC Competition Commission and working groups.

Finally, Kallay informed members on a new draft framework paper issued by the French Competition Authority addressing compliance programs. She suggested USCIB weigh in, pressing for more credit for compliance programs in antitrust enforcement.

Julie Guichard and Matt Heim of Amazon also briefed members on a draft foreign subsidies regulatory initiative in the EU that would impact member companies operating in Europe. The proposal would require mandatory notification to the European Commission of all subsidies received from non-EU governments, information to be used in screening foreign direct investment, mergers and acquisitions, and joint ventures. The proposal was originally aimed at Chinese state-owned enterprises (SOEs), but they warned that the scope has been expanded and will now likely impact western multinationals doing business in Europe. USCIB will explore the issue with members to see if there is an interest in weighing in with the U.S. government on the proposal.

USCIB Advocates Strong Investment Policies at OECD Investment Committee Sessions

USCIB and its international affiliate partners through Business at OECD (BIAC) remain on the front lines, defending solid, pro-investment policies at multilateral fora this fall.  

USCIB President and CEO Peter Robinson participated in the UN Committee on Trade and Development’s (UNCTAD) seventh World Investment Forum (WIF) as part of the Global Leader’s Investment Summit on October 19. “Now more than ever, it is important for international organizations like the UN and its member governments to provide the necessary welcoming environment for foreign direct investment in quality industry and infrastructure projects that help with pandemic relief and sustainable economic growth,” said Robinson. Otherwise, the pandemic exacerbated investment gap will persist with the developing world most at risk.”   

Robinson also called for a strong and sustained role for industry, as a key stakeholder, in the discussion on investment at UNCTAD, the UN Commission on International Trade Law (UNCITRAL), the OECD or elsewhere. His remarks were echoed by other industry representatives and welcomed by some developing countries like Egypt. Opposing views were led by development economist Jeffrey Sachs and countries like Pakistan that would like to see radical reform of the investor state dispute settlement mechanism and reduction or elimination of protections for foreign investors.   

USCIB Senior Advisor Shaun Donnelly was a lead private sector speaker at a parallel “experts meeting on International Investment Agreements in the same virtual UNCTAD World Investment Forum week. Donnelly forcefully defended investor protections, including a strong Investor-State Dispute settlement System (“ISDS”) as necessary protection against host government discriminatory or unfair treatment of foreign investors.  

There was discussion at WIF of establishing a multi-stakeholder “World Investment for Development Alliance” to facilitate greater collaboration between intergovernmental organizations, business entities, academic initiatives and civil society groups and to develop enabling frameworks to address international investment and sustainable development outcomes. USCIB will follow this proposal closely to ensure our active participation.

Donnelly and BIAC Investment Committee Chair Winand Quaedvlieg (Netherlands) led BIAC’s participation in the OECD Investment Committee’s semi-annual fall meetings. In a free-wheeling brainstorming session on investment treaties on October 28, Donnelly made a major intervention that a government’s right to regulate is not a right to discriminate or abuse investors, to be arbitrary or to be non-transparent.  He pointed out that “policy space” promoted by some governments and NGO participants should not translate into a “carte blanche” for governments to treat investors badly.  But unfortunately, according to Donnelly, some governments continue to do just that, underscoring the need for strong investor protections.   

Donnelly also joined Chairman Quaedvlieg on October 27 at a formal “stakeholder consultation” with the OECD Investment Committee leadership.  That session, where BIAC joins with labor union representatives from the Trade Union Advisory Council (TUAC) as well as civil society group OECD Watch, was an opportunity for each of the stakeholders to lay down priorities and basic positions on future work in the OECD Investment Committee.   

Donnelly and USCIB Director for Investment, Trade and China Alice Slayton Clark, remained engaged this fall in informal consultations with U.S. government leaders to press the importance of investor state dispute settlement and positive Biden Administration messaging on the investment climate. The messages built on the above, encouraging conducive taxation frameworks, facilitation of administrative procedures, complementary public investments in modern infrastructure and the right mind- and skill sets, and sound investment protection and general predictability. 

Finally of note, USCIB continues to work with BIAC to share business views with respect to development of the OECD Foreign Direct Investment Qualities toolkit, designed to help policymakers create an enabling environment for attracting Foreign Direct Investment that safeguards key sustainability goals: productivity and innovation; employment, job quality and skills; gender equality; and, low-carbon transition. The toolkit is earmarked as a key deliverable for next fall’s OECD Ministerial Council Meeting. 

According to Clark, “All of these interventions provided a great opportunity for USCIB to remind government officials at the national and international level of the importance of foreign direct investment to economic development, recovery and sustainability, particularly in the face of a pandemic induced downturn.  As such, we must continue to maintain strong investor protections in international investment agreements.”   

USCIB Leads Business Policy Roundtable as Part of Brazil’s Accession to OECD 

The Brazil OECD Business Policy Roundtable brought together U.S. and Brazilian government officials, the OECD and industry representatives in early November to discuss taxation reform and best practices as Brazil seeks to accede to the OECD.  According to USCIB Director for Investment, Trade and China Alice Slayton Clark, this is the latest of the several forums held by the Brazil Roundtable to explore changes to policy and practice – in line with OECD standards and best practices – that benefit businesses and employees while driving inclusive economic growth in Brazil.

Isaias Coelho, special advisor to Brazil’s Ministry of Economy, and Sandro de Vargas Serpa, undersecretary of Taxation and Litigation at the Federal Revenue of Brazil (RFB), detailed the regulations and legislative proposals under consideration that would simplify taxes at the state, federal and municipal levels, reforming consumption, income and international taxation practices.

“Brazil is currently undertaking significant regulatory reforms consistent with OECD guidelines including Recommendations of the Council on Regulatory Policy and Governance,” said Coelho. The ultimate hope, according to Mario Sergio Carraro Telles, executive manager of Economics for the Brazil Industry Association, is to adopt laws that simplify the tax system and reduce costs and uncertainty for companies.

Brazil has been working since 2018 in a dialogue with OECD on transfer pricing, which has evolved into a project aimed at aligning the existing transfer pricing regime with the OECD standard.  This joint project was made possible with the support of UK Prosperity Fund and other OECD countries who share their experience and best practices with Brazil. The United States has bolstered this process through technical assistance and training, asserted John Hughes, director of Advanced Pricing and Mutual Agreement Program of the U.S. Internal Revenue Service.

According to OECD Senior Advisor Tomas Balco, current policies in Brazil end up double taxing multinationals, deterring foreign investment and preventing Brazil from participating fully in global value chains. Luiz de Medeiros, Brazil country manager for IBM and a USCIB member, provided details from an industry perspective, expressing “great hope” that Brazil laws can be aligned with OECD norms.  Toward that end, Flávio Antônio Gonçalves Martins Araújo, head of the International Relations Office at RFB, reported that Brazil Administration currently is working on a legislative proposal to submit to Congress and start a political discussion in 2022 on a new transfer pricing law.

“It is clear from the speakers that the mood is right for reform in Brazil, and efforts are being made despite the economic challenges posed by the pandemic,” said Clark. “We hope these roundtables can inform and inspire in that regard, offering solutions for change that ease the economic burden for all.”

USCIB led the meeting, along with cohorts from the Brazil-U.S. Business Council of the U.S. Chamber of Commerce and Brazil’s National Industry Confederation (CNI). As the official U.S. representative to Business at OECD (BIAC), USCIB has been actively monitoring Brazil’s accession request to the OECD in order to advance business interest.

Additional roundtable discussions will be held throughout 2022, covering investment and trade, environment and sustainable development, as well as innovation and intellectual property.  Digital and regulatory issues were discussed earlier this year.

Herzog Moderates Session at Second UN Forum on Business and Human Rights

USCIB Vice President for Corporate Responsibility and Labor Affairs Gabriella Rigg Herzog joined Sophia Areias of the Global Business Initiative on Human Rights, in moderating a session on November 11 during the second  UN Forum on Business and Human Rights in Eastern Europe and Central Asia. According to Herzog, the session focused on the increasing number of mandatory human rights due diligence laws from around the world, and what they mean for businesses in the region, as well as offered practical insights for local businesses on how to prepare for the changing legal landscape.

Herzog spoke in her capacity as chair of the International Organization of Employers (IOE) Policy Working Group on Human Rights and Responsible Business Conduct. During the session, she emphasized that in this past year alone, Switzerland, Germany and Norway adopted mandatory due diligence legislation and that the EU Commission is poised to publish its proposal for an EU directive on mandatory due diligence this December.

“While many of the companies listening in from the region may not be directly covered by the new legislation because you are not based in the EU,” Herzog said, “nevertheless, it may affect you because the companies that are within scope of the legislation source from this region and will require stronger efforts from their suppliers with regards to responsible business practices.”

The session featured two panels – one with company presentations from Norsk Hydro and JTI discussing their firms’ responsible sourcing policies and practices, and a second including presentations from two employer federations from North Macedonia and Georgia, that spoke about their work and how they inform and support their member companies on emerging regulatory developments and best practices.

USCIB Staff Meet With New Zealand Ambassador; Discuss Trade and Investment Agenda

Left to right: Hannah Lee-Darboe, Ambassador Rosemary Banks, Peter Robinson

USCIB President and CEO Peter Robinson welcomed New Zealand Ambassador Rosemary Banks and her New York-based colleague the New Zealand Consul General and Trade Commissioner Hannah Lee-Darboe to USCIB’s New York office on November 15.

Robinson was joined by USCIB Senior Vice President Brian Lowry and Senior Director Alice Slayton Clark, both of whom tuned into the meeting remotely from USCIB’s Midwest and Washington, DC, offices, respectively.

“We greatly welcomed the opportunity to meet with Ambassador Banks and her colleague, who were interested in discussing perspectives on economic recovery from the COVID-19 pandemic and future U.S. trade policy directions,” said Robinson. “We stressed our interest in and commitment to revitalizing the trade and investment agenda, specifically at the Asia-Pacific regional level, and more broadly at the multilateral level with a stronger World Trade Organization. My colleagues and I also provided insights into the divergent U.S. public views on trade depending on geographic location, political views and direct personal relevance of international trade.”

USCIB staff also expressed general appreciation for New Zealand’s role as host of APEC in 2021 and its global leadership in the trade space.