Comparing the Enforcement Provisions in the New U.S. Trade Deals
Building on the comparison of trade agreement provisions in my last post, let's take a look at the "enforcement" provisions of the six Trump administration agreements for which the legal texts have been published. Here is the main enforcement provision from each of these agreements:
Article 7.4: Enforcement
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2. If a Party considers that the other Party has not complied with a provision of this Agreement, the Party may review the terms of this Agreement and take action in accordance with applicable domestic law. A Party shall, when practicable, with a view to finding a mutually satisfactory solution, notify and seek consultations in good faith with the other Party prior to taking any action.
Article 7.3: Enforcement
If either Party considers that the other Party has not complied with a provision of this Agreement, the Party may review the terms of the Agreement and take action in accordance with applicable domestic law. Prior to taking such action, the Party shall, when practicable, seek consultations with the other Party.
Article 7.5: Enforcement
1. If either Party considers that the other Party has not complied with a provision of this Agreement, the Party may review the terms of the Agreement and take action in accordance with its law. Prior to taking such an action, a Party shall, when practicable, seek consultations with the other Party.
Article 7.5: Enforcement
1. If either Party considers that the other Party has not complied with a provision of this Agreement, the Party may review the terms of the Agreement and take action in accordance with its law. Prior to taking such an action, a Party shall, when practicable, seek consultations with the other Party.
Article 6.4: Enforcement and Implementation
1. If a Party considers that the other Party has not complied with a provision of this Agreement, that Party may review the terms of this Agreement and take action in accordance with its law. Prior to taking an action under paragraph 2, the Party shall, when practicable, seek consultations with the other Party.
2. The Parties shall address matters related to the implementation and operation of this Agreement through the Trade and Investment Council established under the U.S.-Argentina TIFA, including sessions of the Innovation and Creativity Forum for Economic Development. The Parties may also consider further negotiations, as appropriate, through the U.S.-Argentina TIFA.
Article 6.4: Enforcement
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2. If the United States considers that Bangladesh has not complied with a provision of this Agreement, the United States shall, when practicable, seek consultations with Bangladesh. If these consultations do not result in a satisfactory outcome, the United States may reimpose the applicable reciprocal tariff rate set forth in Executive Order 14257 of April 2, 2025 on certain or all imports from Bangladesh to address the noncompliance.
For each agreement, there are two key elements:
- If a government thinks there is a violation, it may take action unilaterally under its domestic law without pursuing international adjudication first.
- A government taking that unilateral action may, but is not required to, seek consultations before doing so.
There's a caveat necessary with the Bangladesh agreement though. To me, it reads as if the consultations are not actually required ("when practicable," just like with the other agreements), but nonetheless consultations are somehow still a condition for imposing higher tariffs. I'm not sure how well the two sentences of the enforcement provision fit together in this agreement.
Also interesting in the Bangladesh agreement is that there is no pretense that both parties will be bringing enforcement actions, as it makes clear that it will be the U.S. doing the enforcement.
And finally on the Bangladesh agreement, the retaliation options seem more limited than the other agreements ("reimpose the applicable reciprocal tariff rate set forth in Executive Order 14257 of April 2, 2025" vs. "take action").
In the Argentina agreement, there is a different twist, as it ties consultations to the TIFA Trade and Investment Council. Apparently, the possibility of consultations only arises when addressing issues through this Council. Regardless, consultations are still not required.
Turning to the practical impact of all this, what will enforcing compliance with these agreements look like in practice? Will we see unilateral actions to enforce the agreements? Will there be formal requests for consultations first?
And then more broadly, will this approach to enforcement be effective? A key issue on this point is transparency: Will the public/Congress be informed about any of these enforcement actions, or will it all be done confidentially? How can we evaluate the effectiveness if we don't know what has been happening?