08 January United States and China trade actions 2018 The "Current State of Play"

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1 Making Sense of the US-China Trade Dispute Presentation to the Association of Corporate Counsel Santa Clara, California January 9, United States imposes additional duties on imported steel and aluminum products, effective March 23, 2018 Duties imposed under authority of section 232 of the Trade Enhancement Act of 1962, based on national security considerations 25% additional duties on specified imported steel products; 10% additional duties on specified imported aluminum products These steel and aluminum tariffs apply to products from all countries, not just China, subject to certain country exceptions based on agreed import quotas China imposes retaliatory duties on $3 billion worth of US origin goods, at rates of 15-25% 2 2 United States imposes additional duties on $34 billion worth of Chinese products, effective July 6, 2018 Duties imposed under authority of section 301 of the Trade Act of 1974, based on findings by the US Trade Representative that the Chinese Government has engaged in unreasonable and discriminatory trade practices that unfairly burden and restrict US commerce 25% additional duties imposed on Chinese products covered by approximately 550 HTSUS tariff subheadings China imposes retaliatory duties, at a rate of 25% on $34 billion worth of US origin products 3 3 1

2 United States imposes additional duties on an additional $16 billion worth of Chinese products, effective August 23, 2018 Duties imposed under authority of section 301 of the Trade Act of % additional duties imposed on a new list of Chinese products, classified under approximately 280 HTSUS tariff subheadings China imposes retaliatory duties, at a rate of 25% on $16 billion worth of US origin products United States imposes additional duties on an additional $200 worth of Chinese products, effective September 24, 2018 Duties imposed under authority of section 301 of the Trade Act of Additional duty rates generally of 10 % on Chinese products classified under approximately 6, 000 HTSUS tariff subheadings The additional duty rate on these products was scheduled to increase from 10% to 25% effective January 1, 2019, but deferred China imposes retaliatory duties, at rates of 5-10%, on an additional $60 billion worth of US origin products A "standstill" agreement, with respect to additional duties, was reached between Presidents Trump and Xi on December 1, 2018 Increase in the duty rates on "list 3" products from 10% to 25% deferred until March 2, 2019, and publication of a new "list 4" postponed pending trade negotiations between the United States and China 5 5 Enactment of the Foreign Investment Risk Review Act ("FIRRMA"), amending the CFIUS foreign investment review requirements and process, directed especially at Chinese foreign investment in technology companies in the United States Section 1758 of the Export Control Reform Act of 2018 directs the Commerce Department to identify, and impose new export controls and export licensing requirements, on "emerging" and "foundational" technologies, important for US national security and/or technological leadership A particular concern underlying the enactment of section 1758 is the transfer of such emerging and foundational technologies to China 6 6 2

3 Concurrently, the Commerce Department's Bureau of Industry and Security ("BIS") has adopted a much more restricted policy with respect to the review of export licenses to transfer export controlled technology to China Imposition of export control restrictions on Fujian Jinhua Integrated Circuit Co., based on a perceived competitive threat to a US DRAM manufacturer Unprecedented application of those export control restrictions, which are typically used to sanction (i) parties engaged in unauthorized diversion of US origin commodities, software or technology; or (ii) parties engaged in WMD proliferation activities 7 7 Enactment of section 889 of the National Defense Authorization Act (Pub. L ) Prohibits US Government agencies from procuring telecommunications equipment or services from Huawei, ZTE and certain other Chinese companies Prohibits US Government agencies from procuring telecommunications services from any company that utilizes Huawei, ZTE or certain other Chinese companies' equipment as part of its critical telecommunications infrastructure 8 8 Press reports that the Trump Administration is working on an Executive Order that would prohibit telecommunications companies in the United States from using Huawei or ZTE telecommunications equipment or services Arrest in Canada, at the behest of the United States Government, of Meng Wanzhou, chief financial officer of Huawei Law enforcement matter or political maneuver as part of the trade war? 9 9 3

4 Product classification analysis About ½ of all Chinese products imported into the United States are not currently subject to the Section 301 duties Product exclusion process For the "first round" list and the "second round" list of products subject to Section 301 duties, the US Trade Representative has created a process by which importers and other interested parties may petition for the exclusion of specific products from those Section 301 duties On December 21, 2018, the US Trade Representative granted product exclusion petitions for approximately 1,000 individual products covered by the "first round" list; approximately 1,250 product exclusion petitions were rejected Alternative sources of supply Key Trump Administration policy objective to reduce supply chain dependence on China Extremely important to confirm the actual country of origin of the products, based on US Customs & Border Protection ("CBP") country of origin rules; the country of origin of products previously imported from China is subject to special scrutiny by CBP Third Country Assembly of Chinese Origin Parts and Components Determination of the country of origin for US customs purposes of assembled articles is based on the CBP "substantial transformation" standard and analysis A "substantial transformation" of a product occurs where, as a result of a manufacturing or assembly process in a particular country (i.e., a country other than China), the product is transformed into a new and different article of commerce, with a name, character or use distinct from the (Chinese) parts and components from which it was transformed

5 Disaggregation and Final Assembly in the United States With such "disaggregation" the Section 301 duties, to the extent applicable, will apply only to the value of the Chinese origin parts and components when imported into the United States Valuation on the Basis of the "First Sale for Export" Potentially applicable to a multi-tiered procurement or supply chain arrangement Valuation of the imported products for US customs purposes may be based on the original manufacturer's sale of those products to a third country intermediary At the time of that original manufacturer's sale of the products, the products must be clearly destined, and irrevocably committed, to export to the United States Customs duty preference under subheading , HTSUS for products assembled abroad (i.e., in China) from US origin fabricated components Under subheading , the US Customs value of the assembled products, when imported into the United States, is the total price paid or payable for those assembled products, less the value of the US origin fabricated components The US fabricated components must be exported to the offshore (Chinese) assembler in a form ready for assembly without further processing, except for operations incident to assembly Duty Drawback on products imported from China and subsequently exported from the United States Manufacturing drawback may apply for products manufactured in the United States with imported parts and components (e.g., from China), and then exported Same condition or unused merchandise drawback may apply to products imported into the United States, and the exported from the United States in the same condition as imported (e.g., where the United States acts as a global or regional distribution hub) Potential use of a foreign trade zone ("FTZ") as an alternative to using duty drawback, as a Section 301 duty mitigation strategy for products imported from China and then subsequently exported

6 Supply Chain Tax Considerations Changing manufacturing operations Consider tax implications of equipment sale and dissolution of Chinese company No exit taxes out of China but dissolutions fully taxable Potential recognition of import custom duties at time of sale and VAT IP and royalty stream considerations Should I consider using contract manufacturers outside of China? United States-China Trade Dispute Questions? Speakers Rod Hunter Partner, International Commercial Baker McKenzie, Washington DC Nicole Kelsey General Counsel and Secretary Amyris Dominika Korytek Partner, Tax Baker McKenzie, San Francisco John McKenzie Partner, International Commercial Baker McKenzie, San Francisco

7 Baker & McKenzie LLP is a member firm of Baker & McKenzie International, a global law firm with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a "partner" means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an "office" means an office of any such law firm. This may qualify as "Attorney Advertising" requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome. 19 7