In lieu of an abstract, here is a brief excerpt of the content:

CHAPTER 13 Trade Law and Trade Policy: The Advocate's Perspective Richard O. Cunningham I. Introduction In most of the literature on trade policy, the principal focus is on major trade matters-import relief cases in particular, but also market access cases and various types of bilateral and multilateral negotiations. Typically, the author will characterize the outcome of each such matter as a trade policy decision and will, in effect, see an administration's "trade policy" as being revealed by those determinations. In general, since most commentators have what they conceive to be a free-trade perspective, the basic thrust of the author's inquiry will be to determine the extent to which the decisions in such cases or matters result in trade restrictions and why such derogations from free trade occur. In that type of analysis, many commentators come to the conclusion that the major explanation for u.s. decisions to restrict trade flows is the political influence of such industries as steel, textiles and semiconductors. From the perspective of the international trade law practitioner, the world is very different. In the import relief area, the vast majority of u.s. restrictions on trade flows have nothing whatsoever to do with the political influence of the petitioning U.S. industry. Rather, import restrictions flow in a largely nondiscretionary manner from a long-established u.s. (and multilateral) trade policy that defines price discrimination, sales below cost and subsidization as unfair practices against which import restrictions are the appropriate remedy. Only in a few of the nondiscretionary cases, and in the even fewer cases that arise under discretionary import relief statutes, is the political might of the petitioning industry at all relevant. And even in those cases, domestic political pressure by the petitioning industry is rarely the decisive factor. Similarly, in cases involving market access, protection of intellectual property rights and other issues dealing with conditions in foreign markets, the U.S. industry'S political force is necessarily a factor of secondary importance. From the trade lawyer's perspective, such matters involve an extremely complex interplay of forces and strategies-necessarily complex because of one fundamental fact: unlike cases of import relief, the United States cannot uni- 264 Constituent Interests and U.S. Trade Policies laterally dictate the outcome of cases involving practices encountered in foreign markets. Where U.S. import restrictions are imposed in such cases, it is this factor-not simply the political influence of the domestic industry-that is likely to be the major cause. The trade lawyer, one must remember, is an advocate and does not purport to be a policymaker. The advocacy task is to achieve for the client a specific economic objective. Among those objectives are: • The protection of a U.S. industry from the effects of unfair-dumped, subsidized or intellectual property infringing-imports. • Obtaining temporary shelter from import competition in order to enable a U.S. industry to regain competitiveness by cost reduction, introduction of new products and the like. • Elimination or reduction of foreign government subsidies. • Removal or reduction of a foreign government's barriers to imports (and, under the new World Trade Organization agreements, barriers to investment). • Obtaining improved protection of a U.S. firm's intellectual property rights in a foreign country. It will be noted that the foregoing list of objectives does not include, contrary to what one would expect from reading much of the academic and political literature, such goals as limiting imports' role in a U.S. market or gaining for U.S. firms a greater market share in a foreign country. This is because neither trade law nor trade policy recognizes those objectives except in very rare, aberrational cases. Rather, both trade law and trade policy-today and at least since the author began international trade law practice in 1969-operate under a sort of Universal Principle that trade flows should not be artificially restricted or distorted. Thus almost all types of trade cases have as their gravamen the elimination of or counteraction against a practice defined as unfair under U.S. and/or international law. In summary, the perspective of the trade lawyer focuses on the legal gravamen and legal/political/diplomatic strategies of trade issues. For this author, at least, that perspective leads to conclusions quite different from those of an economist or political scientist, whose analysis focuses on and draws conclusions from the outcome of the case. This paper will explore three categories of trade cases from the perspective of the trade...

Share