贸易政策

  • Holland & Knight贸易政策团队定期代表外国政府和私营部门客户,向负责制定美国国际商业政策的联邦政府机构就各种各样的问题提出意见。
  • 我们的团队成功地代表了美国公司在高调的公共政策和游说活动中的联盟,以支持开放的美国贸易和投资政策。
  • 我们丰富的经验在贸易政策、贸易法律和国际贸易法规使我们能够处理公司两大贸易游说活动以及公司和行业的问题涉及关税、海关、市场准入和反倾销/反补贴税的规定美国贸易立法。
国际旗帜

概述

荷兰奈特国际贸易集团经常在美国政府、美国国会和多边金融机构面前代表外国政府、美国和外国产业的利益。manbetx万博app下载我们与客户合作,确定理想的贸易政策成果,并制定实施这些成果的详细计划。然后,我们有效地游说有关政府和国际实体,以达到预期的结果。

在双边贸易谈判方面,我们在过去两年中一直担任巴林王国的顾问。巴林王国是中东地区一个具有重要战略意义的国家,在美-巴林自由贸易协定(FTA)谈判中担任顾问。我们在三个层面上为巴林政府提供建议,同时与美国贸易代表办公室进行技术性贸易谈判,游说适当的国会议员以确保国会通过自由贸易协定,以及战略沟通咨询。我们的贸易集团还就正在进行的美国-安第斯自由贸易协定谈判向哥伦比亚一些重要的产业集团提供建议。

我们经常代表外国政府和私营部门客户就各种各样的问题与所有负责制定美国国际商业政策的联邦政府机构交涉,与美国贸易代表办公室(USTR)有着特别密切的联系,美国商务部和国土安全部(现为前美国海关总署所在地)。我们的一名律师曾在美国贸易代表办公室担任助理总法律顾问。在这个领域,我们与我们的政府律师密切合作,包括一些前国会议员,他们在行政部门和国会山的联系可以证明宝贵的支持我们的客户。这类代表包括联合王国、萨尔瓦多、所有五个中美洲国家、塞内加尔、牙买加、特立尼达和多巴哥的政府,以及广泛的外国商业利益。我们的贸易集团在关贸总协定、世贸组织、CBI、北美自由贸易协定和其他贸易协定方面有相当丰富的经验。

我们的贸易集团成功地代表了美国公司在高调的公共政策和游说活动中的联盟,以支持开放的美国贸易和投资政策。我们在美国贸易政策方面的经验使Holland & Knight能够在主要的贸易游说倡议以及与美国贸易立法中的关税、海关、市场准入和反倾销/反补贴条款相关的公司和行业特定问题上与企业合作。

在贸易政策领域有效代表的一个关键因素是对特定贸易专业的扎实工作知识。我们的贸易小组每天处理各种各样的国际贸易事务,如海关、贸易诉讼、美国出口管制和制裁。此外,我们的贸易集团可以利用荷兰和奈特律师的资源,知识和广泛的经验丰富的领域,从电信,国际银行和劳动法。

以下是贸易小组在这方面的一些经验的简要概述:

  • 就正在进行的美国安第斯自由贸易协定,为哥伦比亚的两个主要产业组织提供咨询
  • 为一个主要的贸易协会提供有关策略的建议,以减轻最近美国海关关于进口海产品保税要求的指令的影响
  • 为土耳其政府就可能与美国达成的自由贸易协定提供建议,并准备了一份关于该协定与土耳其的欧盟准成员资格是否兼容的报告
  • 担任英国国防部关于美国国防贸易控制政策的法律顾问
  • 代表所有五个中美洲国家在通过《加勒比盆地贸易伙伴法》方面的联盟
  • 代表萨尔瓦多参与双边贸易和救灾事务
  • 代表美国烟花制造商协会修改美国海关法律

多媒体

In the third episode of our Public Policy & Regulation Group's \"The First 100 Days of the Biden Administration\" podcast series, Trade Partner Nasim Fussell and Tax Attorneys Alan Granwell and Joshua Odintz continue a discussion on the current state of the digital economy and digital services taxes (DST). They provide an update on DSTs in the U.S. and abroad and look at the United States Trade Representative's (USTR) plans for addressing DSTs and working with the OECD.

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For more in-depth info on the Biden Administration's Made in America Tax Plan and its interaction with OECD Inclusive Framework, read our recent alert.

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Podcast Transcript

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Nasim Fussell: Welcome back, everybody, to our second podcast on the digital economy and tax. I am Nasim Fussell. I'm a partner in the trade group at Holland & Knight, and I am joined once again today by two of our Holland & Knight tax gurus, Josh Odintz and Alan Granwell. We hope you had the opportunity to listen to our last podcast, essentially laying the framework for you on what is going on with digital services taxes. What are these taxes? Why the proliferation of these taxes around the world? And what is the United States and its trading partners doing to address these taxes and find an agreement on the global stage? So, with that, today we are going to just spend some time updating you on what has happened since we were last all together, talking about this very interesting topic.

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An Update on USTR and DSTs

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Nasim Fussell: On the trade front, when we got together last time, I gave you a brief overview of the latest actions taken by the Biden Administration. If you go back to last year when the last USTR started a number of investigations under the auspices of Section 301 of the Trade Act of 1974, essentially they started these investigations and concluded before leaving office that these taxes were, in fact, discriminatory and unfairly targeting U.S. companies. However, they didn't take action. There was a lot of anticipation that that they would take action on their way out the door and impose tariffs, but they did not do so and they left that for the Biden Administration. At the end of March, the Biden Administration, through USTR, announced that it was going to seek comment from the public on a potential trade action against a number of the countries that USTR had investigated. That includes Austria, India, Italy, Spain, Turkey and the United Kingdom. USTR asked for public comment and also announced multijurisdictional as well as individual hearings on these various investigations that will be happening in the beginning of May. So if you are interested in commenting, we encourage you to get your comments in. If we can be of assistance, we would be very happy to and please feel free to reach out. The comments are due by April 30, and USTR is also asking if companies or organizations would like to appear at the hearing, that they submit their request for appearance by April 21, along with testimony. Again, these hearings will be held in early May, ranging from May 4 through May 11. Now another interesting development, at the end of March USTR announced that it would not be proceeding with investigations. At the last, USTR had begun on the DSTs that had been proposed by the European Union, the Czech Republic, Brazil and Indonesia. USTR indicated that these jurisdictions had not adopted or implemented the taxes, that it would be terminating the investigation. So that's where we are now on the trade front. Notably, USTR also said that it was going to continue to remain focused on the OECD process and committed to finding a solution there, but that it wanted to maintain its options, including tariffs in the meantime. With that, I want to hand it over to Alan to talk to us about what is going on in the tax universe. There's just been a flurry of activity and it all may very well determine what happens when it comes to the trade actions or not. So, Alan, over to you. Maybe you can clear some of this up for us.

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USTR also said that it was going to continue to remain focused on the OECD process and committed to finding a solution there, but that it wanted to maintain its options, including tariffs in the meantime.
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An Update on Taxes in the U.S. and Abroad

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Alan Granwell: Thank you so much and welcome, everybody. There, as Nasim has mentioned, really been a frenetic force of activities in the last week or so, every day something else comes out. Let me summarize it and then Josh and I will sort of chat about this in high-level terms. As you are undoubtedly aware, last week, the president announced his jobs plan, this major initiative to invest in American infrastructure, research, technology, green energy, which is more than the hard type of infrastructure, roads, airports and other types of facilities. This plan is proposed to be funded primarily by increases in corporate taxation, which we'll describe, and it's summarized in another document the administration released called the Made in America Tax Plan. Under this particular plan, the U.S. corporate income tax rate would be increased from 21 to 28 percent. There would be an adoption of a 21 percent global minimum tax on foreign profits of U.S. multinational corporations. There would be incentivization for U.S. corporates to invest in the U.S. and in jobs, and a disincentive of the U.S. corporates to invest abroad and jobs, and also a disincentive in terms of profit shifting. All of this would be monitored by increases in the IRS budget on the compliance front. Well, the reaction to the infrastructure is one thing. I think the parties agree that infrastructure should be improved, but there has been a significant counter reaction to the increase in corporate rates to fund this particular plan. At the same time, while all of this is going on, as Nasim had mentioned and as we discussed in our first podcast, there are the imposition of the unilateral digital services taxes by countries around the world and how the U.S. reacts against those. As we mentioned, there is this project going on at the OECD to resolve these issues, which is the Pillar One and Pillar Two, to deal with profit allocation and nexus initiatives and also a global minimum taxation. What is so interesting in terms of what the Biden Administration did is they tied their corporate tax increases to what is going on in the OECD. In other words, to maintain U.S. competitiveness in view of the proposed increase of the corporate tax rate to 28 percent, the U.S. has actively engaged with the OECD Inclusive Framework dealing with this Pillar One and Pillar Two, and in the Pillar Two context has urged countries around the world to adopt a robust minimum taxes and to provide for disincentives. And if they don't adopt these minimum taxes, these countries would be subject to disincentives, potentially the denial of deduction of payments to these low tax countries. Likewise, in terms of how to address digital service taxes and the proliferation of those types of taxes worldwide, the United States is mentioning to the U.S. that that type of issue has to be resolved in order to really create a uniform international tax structure. The proposals being made currently by the U.S. would provide a simpler method to deal with the process, allocation and nexus, as opposed to the complex ways that previously had been proposed. Simpler ways would reduce compliance, administrative burdens, provide certainty in principle and not be discriminatory against large U.S. companies. If this all works, the idea would be that there would be a resolution of this DST problem and concomitantly an increase in the global minimum tax, so countries then would not be racing to the bottom. Josh, am I getting this right? What do you think the takeaways of this unusual initiative are?

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What is so interesting in terms of what the Biden Administration did is they tied their corporate tax increases to what is going on in the OECD … to maintain U.S. competitiveness in view of the proposed increase of the corporate tax rate to 28 percent, the U.S. has actively engaged with the OECD Inclusive Framework dealing with this Pillar One and Pillar Two.
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Josh Odintz: Alan, you absolutely nailed it, and there's a lot to unpack. I think it's interesting, looking at the OECD and Inclusive Framework process, just reminding everyone that back in 2020 the last administration created a new hurdle for Pillar One and said that Pillar One would be a safe harbor for Amount A. Amount A, once again, is the IP return that would be ceded to the market jurisdiction. Secretary Yellen noted that the U.S. changed its negotiation position and that Pillar One, Amount A would no longer be a safe harbor and the U.S. would change its negotiating position. So that led to, I think, some very positive developments and showed the U.S.' willingness to move in a direction to reach agreement at the Inclusive Framework. It's clear that the Biden infrastructure proposals are fairly similar to what is under discussion at the OECD on Pillar Two. What we have not seen is how Pillar One would operate in the U.S. system, but perhaps the U.S. will move forward on changes to guilty and changes to the BEAT, or the base erosion and anti-abuse tax, and will then make further revisions to align us with Pillar One if an agreement is reached.

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Nasim Fussell: Does this mean we're going to end up with tariffs? Because what you guys just described sounds incredibly ambitious, but there also seems to be this great deal of ambition backing the goals. So are we going to get there? Are we going to avoid tariffs? Where do you see this going?

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Josh Odintz: So I think there are different pieces of what's in the Biden tax proposal. It's possible that we end up with multiple rounds of corporate tax and international tax changes. I think raising the rate, for example, is fairly easy. If one looks at the polling, it's a fairly popular message to increase corporate taxes in exchange for paying for better infrastructure - that even polls well among Republicans. So I think it's possible we could see a corporate tax increase, and then on the OECD Inclusive Framework and guilty BEAT side, we need to see more details to see the advanced thinking of Treasury. We will see that when the Treasury releases its full budget and green book, and we'll get a sense of what the connections are between the different provisions. It's possible that may not be ready for passage in the near term and it might be a Fall exercise. At the same time, what we've seen at the OECD so far, the two public documents, Pillar One and Two, contain detail, but not sufficient detail for implementation. So we don't really know the timeframe for implementing Pillars One and Two, they will require uniform legislation and a multilateral instrument. Both of those could take years once a deal is reached, to flesh out the details. I'd say we're in this period of flux. Alan, there is some cryptic messaging about unilateral measures. What do you think? Where are we on the path for agreement?

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If one looks at the polling, it's a fairly popular message to increase corporate taxes in exchange for paying for better infrastructure - that even polls well among Republicans.
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Alan Granwell: Thanks, Josh. I mean, interestingly, I think the idea is to sidestep all the trade issues by having countries adopt a uniform and robust global minimum tax. By happenstance, I was speaking to various colleagues today in Switzerland and Ireland, and the U.S. is proposing a 21 percent rate, in certain instances in Switzerland, under the various cantonal tax regimes, the rate is 13 percent, and the rate that is sort of the headline rate in Ireland is 12.5 percent. So in terms of reaching agreement on a 21 percent rate of corporate minimum tax, you will have countries such as Switzerland, Ireland and Hungary, which has a 9 percent rate, not much in favor of it, but subject to the unilateral approach the U.S. might take at denying deductions and applying then to parties in those other countries. So I think all of this has a long way to go to get resolved, but I think the underlying premise now of the administration is to reduce the race to the bottom. It's important for countries around the world to agree to a uniform rate, but that whole arrangement will not get that far through the continuation of the imposition of unilateral taxation through these DSTs or other types of crawlspaces taxation. Therefore, it's necessary to have a stable system. As Josh was mentioning, you have to resolve who's within scope, how does this all work, can you achieve certainty, and from the U.S. point of view that it doesn't discriminate against the large U.S. taxpayer. So I think, Josh, this is a huge challenge, not only in terms of doing all of that, but also maybe equally challenging in relation to how all of this is going to be passed by the U.S. Congress, which is probably a topic for another day.

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It's important for countries around the world to agree to a uniform rate, but that whole arrangement will not get that far through the continuation of the imposition of unilateral taxation through these DSTs or other types of crawlspaces taxation.
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Nasim Fussell: Indeed. Well, thank you both. I find that I learn so much from both of you about everything that is happening in parallel in the tax and trade world right now, and really, one is so dependent on the other in terms of outcome. At the end of the day, whether it's taxes or tariffs, it's all taxes in the end. So please do reach out if you would like to talk to us more about any of this, and we are going to continue coming together to bring you more content.

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In the second episode of our Public Policy & Regulation Group's \"The First 100 Days of the Biden Administration\" podcast series, Trade Partner Nasim Fussell leads a discussion with Tax Partners Alan Granwell and Joshua Odintz on the current state of the digital economy and digital services taxes (DST). They provide a comprehensive overview of DSTs and look at the United States' current relationships with other Organisation for Economic Co-operation and Development (OECD) countries, particularly through the administrational changes.

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For an update on these topics, listen to Episode 3: An Update on the Digital Economy and DSTs.

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Podcast Transcript

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Nasim Fussell: Welcome, everyone, to the first in a series of podcasts on the digital economy and digital services taxes with Holland & Knight. My name is Nasim Fussell and I am a partner in the international trade group at Holland & Knight. I work with our Public Policy Group extensively, and particularly in this area of digital economy and digital services taxes with two of my colleagues and partners that I have here with me today who are key to knowledge and the pathway on this topic. So in this podcast, we're going to provide an overview for you on what is going on with digital services taxes today, not just domestically, abroad and at the multilateral forum. We're also going to talk about why the trade and tax aspects of DSTs, as they are known, are such important issues for companies engaging in international commerce. In latter podcasts, which will follow in the coming weeks, we will delve more into the technical detail and invite other experts to join us for a discussion to update you on the current developments in these areas. So, let me start by introducing you to my colleagues. Alan Granwell is a tax attorney with more than 50 years' experience in the area of international taxation. Alan is a former international tax counsel at the Treasury Department and brings a wealth of knowledge and perspective to these issues. Joshua Odintz is a tax attorney in our D.C. office, where he focuses on tax policy, tax controversy and tax planning. Josh also served at Treasury, as well as the Senate Finance Committee, which has jurisdiction over all things tax. So, thank you both for being here today.

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What are the Digital Economy and Digital Services Taxes (DST)?

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Nasim Fussell: Let's start with some basics. What is the digital economy? An economy based on digital computing technologies, although in our world today, it is commonly perceived as conducting business through market based on the Internet and using the World Wide Web. Here are some fast facts. The digital economy is equivalent to 15 and a half percent of global GDP, and it's growing two and a half times faster than global GDP over the past 15 years, according to the World Bank. Governments in which digital economy customers are located want to tax revenues derived from the digital economy through a new form of tax that we are discussing today known as digital services taxes. Why? We'll get to that in this podcast today where we plan to lay the groundwork for you. What is a DST? I'm going to hand that over to Josh to tell us a little bit more about this, and then we're going to dove into why all of this is happening. So, Josh, over to you. What is a DST?

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Joshua Odintz: Thanks, Nasim. So, a DST is basically a tax that applies to businesses selling digital services to consumers located within a jurisdiction. There are roughly more than 40 DSTs in effect or under consideration, but there are some common themes or elements to it. The first is it's generally imposed on gross revenues and second, it's generally imposed on companies or entities that meet a certain revenue threshold, either in a jurisdiction or globally. DSTs are also targeted at a small number of large digital companies, so think of it as social media companies, e-commerce marketplace companies, cloud services and web-based service platforms. So looking by example, the European Commission proposed a DST back in 2018 that would have imposed a temporary DST of a three percent rate on revenues derived from online advertising services, receipts from digital intermediary service activities and sales of user collected data. So the European Commission version would have applied to businesses with worldwide revenues of 750 million euros in taxable revenues within the EU exceeding 50 million euros. Ultimately, the EU did not adopt that proposal, but several EU countries have gone off and created their bespoke versions of a DST.

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A DST is basically a tax that applies to businesses selling digital services to consumers located within a jurisdiction. 
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How Do DSTs Work?

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Joshua Odintz: So there's a range of flavors of DSTs from the tax rate, ranging from 1.5 to 7.5 percent on receipts from sale of advertising space, the provision of digital intermediary services such as the operation of online marketplaces and the sale of data collected from users. So generally, what we've seen is a common theme that there must be a group level threshold and then a domestic level threshold, and then the taxes are designed to hit certain services that, once again, involve the collection of data. Alan will get into in a minute how we ended up here, but it's just worth observing that there's a lack of understanding of how digital economy companies make their money. It's generally through data collection and use of data, and so the DSTs are targeted at those companies that you collect and are able to manipulate that data. So DSTs are theoretically temporary taxes until there's a global consensus at the OECD, and we'll get into the details of the work at the OECD, but certainly these taxes are growing and, like I said, the number has exceeded 40 in number. So as far as criticisms - from the U.S. perspective, DSTs are targeted at U.S. multinationals. That is certainly a view that has been raised to USTR, and Nasim will get into that later in our broadcast, and these are taxes that are targeted at large U.S. multinationals and provide an advantage to home country businesses that fall beneath the threshold. These are also taxes that are likely to be passed on to customers, and some businesses in the digital economy will be able to pass this along to customers, while other businesses will not be able to because of the competition and the business models. We've seen that some of the digital economy businesses have increased their costs and prices and will pass those along to the consumers of their services. There's also a significant theme that we will touch upon in subsequent podcasts, but there's the potential with the DST for double taxation, and that could occur where two or more countries consider a certain revenue, stream a source there and seek to tax the same revenue stream. Only the UK has a provision that would address double taxation. So there is a true risk that if countries are not coordinated, they could seek to tax the same stream of revenue more than once.

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Nasim Fussell: That was a really helpful foundation and raises a question for me as not a tax person, and Alan, I'm going to pose this to you. Why can't the current international tax system simply apply to digital services? Why are we where we are today?

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Why Digital Services Are Taxed Differently

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Alan Granwell: Thank you, Nasim. I think that's really the crux of the issue and the simple answer is, and then I'll get into it a bit more, is that digital is a virtual type of methodology. You don't have a physical presence. It all goes through the computer or the Internet or something which is not physically situated in the particular country. When we examine our international tax system and the norms that apply to our international tax system, which incidentally are followed by most of the world through the OECD documentation and studies and model treaties and commentaries, we find that under non-digital situations for a tax payer, not resident in the local country, the source country, in order to be taxable in that source country, the same U.S. taxpayer has to have a form of physical presence in the country and do business in that country. The physical presence can either be an office/fixed place of business, or it could be an agent which has certain authorities to bind the principal in that country and if you do not have that nexus with the particular country, income from transactions related to that country generally are not subject to taxation in that country. There obviously are exceptions, but that is the general rule. When we think of the digital economy, we are thinking of something which doesn't have that fixed presence, and if you don't have the fixed presence, then under our bilateral tax treaty system, a U.S. company which doesn't have a presence but is doing things in that other country generally would not be subject to local country taxation. So we have this conundrum in terms of the source countries, where various of the major U.S. companies who have digitized their business can undertake transactions in that country. Based on our current system of treaties and also the local laws of the country, the U.S. entity would not be subject to tax. Because of the growth in this area, through the statistics you had mentioned, these local countries are seeking to find a way to tax income from what they perceive should be taxable because of value creation in their countries. I think at this stage, let me just sort of turn it back to Josh to describe what is going on in terms of the OECD considerations of that issue and the initial studies. This is sort of the birth of this whole inquiry as to how to more appropriately tax the digitization economy.

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When we think of the digital economy, we are thinking of something which doesn't have that fixed presence, and if you don't have the fixed presence, then under our bilateral tax treaty system, a U.S. company which doesn't have a presence but is doing things in that other country generally would not be subject to local country taxation.
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Joshua Odintz: Thanks, Alan. Let's go back a little bit in history to 2013. So the OECD, which is an organization that is comprised of 37 members and was formed after World War II, back in 2013, focused on base erosion and profit shifting, or the BEPS Project. There were 15 action items that the OECD explored. Action item number one was the digital economy, and the question at that time was whether the digital economy should be ring fenced, or should it be taxed in a way that is consistent with norms? Do the norms have to be changed? So that was action item one. Within the other 14 action items, the OECD issued a series of reports and, in some cases, model legislation. It also updated the multilateral instrument. So those items were adopted by countries and are continuing to be adopted by countries. The OECD issued a report in 2015 on action item one, the digital economy. That report noted that because the digital economy is increasingly becoming the economy itself, it's not possible to ring-fence the digital economy from the rest of the economy for tax purposes. The United States was pretty firm in that position during the Obama Administration, and the work continued behind the scenes and there was a change in administration in the United States. Then in 2018, the G20 and the Inclusive Framework, which involves more than 130 countries, continued to work on the issue and deliver an interim report in March 2018. Then in 2019, the members of the Inclusive Framework, that includes the 37 OECD countries, plus almost 100 countries that normally are not involved in these matters, so the OECD brought them into the tent to try to drive or create consensus. In 2019, the Inclusive Framework agreed to examine the digital economy and unresolved tax issues from BAPS in two pillars, and that could lead to a consensus solution to tax challenges arising from the digital economy.

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Alan Granwell: Josh, just to interject, what you are describing with this Inclusive Framework is really an undertaking by the nearly 140 countries to recalibrate our basic international tax system. So this is really a fundamental change in how countries can impose tax on entities from other countries which don't have a physical presence in the local country.

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This Inclusive Framework is really an undertaking by the nearly 140 countries to recalibrate our basic international tax system.
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Joshua Odintz: I think another way of putting it, is that it would take us away in transfer pricing from the arm's length standard. In the case of Pillar One, it would say that a digital company would have to cede some of its profits to a market-based country. This reflects the view of the marketplace countries that it's the market, and not the technology or the intellectual property, that is responsible for profits.

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Alan Granwell: Indeed. So that's where we are.

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The Trade Impact of DSTs

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Nasim Fussell: Wow. Well, thank you both for really laying out what is a fascinating, though clearly very complicated issue. Let me say a little bit now that we've discussed the tax side of this issue about why I'm here. For our audience, you may be wondering now that we're deeply ingrained in tax, why is this trade person here? Well, let's think about the trade impacts of these DSTs and also talk a little bit about how the United States has responded to the proliferation of beasties around the world. So we talked a bit about the digital economy and Alan, thank you for answering my question about why we are where we are. I think that the way you answer the question really hit the nail on the head from a trade perspective as well. You know, historically, when we talked about trade, we were talking about the trade in goods, the movement of goods across borders, while increasingly we're talking about trade in services and even more increasingly, trade in digital services. So put simply, the movement of these digital services around the world by virtue of what these services provide.

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Nasim Fussell: The issue here now is that these DSTs essentially serve as a trade barrier to these services trades and, in particular, with the increasing number of DSTs popping up around the world and the way that they have been set up, there has been a strong perception that these unilaterally enacted DSTs unfairly target and discriminate against large U.S. technology companies. During the last administration, there were a number of Section 301 investigations launched into DSTs in Austria, Brazil, the Czech Republic, the European Union, France, India, Indonesia, Italy, Spain, Turkey and the United Kingdom. There was a lot of bipartisan support for the Trump Administration launching the Section 301 investigations, which is really noteworthy because they were launched in a period of time during which the Trump Administration had launched and taken terrorist action on imports from China under the purview of Section 301. A lot of retaliation had been put in place by the Chinese as a result. The Trump administration had taken action under a number of other statutory authorities to impose tariffs as well, all of which had also invited retaliation. So while there was a lot of bipartisan consternation about tariffs, there was a lot of bipartisan support for these Section 301 investigations into these DSTs. Again, I think it has a lot to do with this very strong and again, very bipartisan perception that these DSTs were unfairly targeting and discriminating against these large U.S. technology companies.

\n

So, you know there, as I said, were a number of these investigations and just at the end of 2020 - and I must add that these investigations were going on while all of the processes that Alan and Josh described for you at the OECD were taking place. While this is all taking place, the administration conducted its investigations and at the end of 2020, there was an expectation with heading into the New Year, the Biden Administration coming in and all of the bipartisan support that I noted earlier, that the Trump Administration would likely take action if not on all of the investigations, then at least on the French DST, which is where it started its Section 301 investigation process. In fact, I'm going to take a moment to speak about the French investigation and how that unfolded, because I think it'll provide a good illustration of some of the decision making that occurred in parallel with the talks at the OECD. So in July 2020, the Trump Administration, after going through its process investigation under Section 301 and determining that the French DST was in fact discriminatory and unfairly targeting U.S. companies decided to impose tariffs. Under Section 301, it also has the authority to consult with the other party and that is what it chose to do with the French government. The two governments, the U.S. government and the French government agreed to pause on the tariffs and to allow the OECD process to unfold in an effort to try to reach a deal there so that there would not have to be forward movement on Paris. Well, that process unfolded a bit, and we reached July 2020 when a conclusion had not been reached yet and the Trump Administration announced that they were going to impose tariffs on the French, but that they would wait another 180 days before imposing them. So I'm going to stop there for just a moment, to see if Alan and Josh want to provide some parallel input on what was happening in Paris at the OECD at the time, and some insight into why that pause might have been taken by USTR. 

\n
I think it has a lot to do with this very strong and very bipartisan perception that these DSTs were unfairly targeting and discriminating against these large U.S. technology companies.
\n

The United States and the OECD Inclusive Framework

\n

Joshua Odintz: Absolutely. So a few things. One, Congress - and this was bipartisan, bicameral - supported the OECD Inclusive Framework process, but it did not support necessarily the outcome because as we'll discuss the later podcasts, the outcome would require potentially legislation and a modified model U.S. tax treaty. So the United States supports a process but does not support the outcome that is reserved for a later date. The United States participated in the Inclusive Framework, sat at the table, the then deputy assistant secretary for International Tax Affairs was actively involved in the negotiations, but there was a letter from Secretary Mnuchin on one of the pillars that provided that Pillar One and specifically Amount A, which goes to the IP returns in the digital economy, that that would be a safe harbor. That was viewed as not constructive by the Inclusive Framework and created some problems in negotiations. Its second, different countries were focused on different pieces of the Inclusive Framework. Some of the countries wanted to adopt Pillar Two and were less interested in Pillar One. Some of the market countries were focused like a laser on Pillar One. So the negotiations led to two reports for which we have received comments. There have been public consultations, but there are two reports that were issued by the secretariat at the OECD. So they do not reflect the views of the countries, they just reflect the view of the OECD. That is currently where we are with respect to documents. The United States recently indicated with the new Biden Administration that it is changing its position with respect to Pillar One. The United States is willing to consider Pillar One not as a safe harbor, but as part of a broader package for the Inclusive Framework that would be mandatory.

\n

Alan Granwell: I just wanted to make a very brief comment. First, Pillar One is dealing with DSTs as Josh had described, Pillar Two is dealing with global minimum taxes and the interaction with our U.S. minimum tax under the guilty regime. Why is all of this important for U.S. multinationals? The reason is, it could change the way these multinationals are taxed abroad and whether they will get what we call foreign tax credit for any local taxes imposed. We will get to all of this in future podcasts and go through the current mind numbing sort of analysis of these two pillars, but best to do that for another day.

\n
Why is all of this important for U.S. multinationals? The reason is, it could change the way these multinationals are taxed abroad and whether they will get foreign tax credit for any local taxes imposed.
\n

Nasim Fussell: Thanks, Alan. So let me pick back up on trade, because the way the story ended in early 2021 with the Trump Administration is a determination not to take action after concluding all of these investigations and determining across the board that there was, in fact, targeted discrimination against U.S. companies. Why? You know, it was highly speculated that perhaps focus should remain at the OECD. What USTR indicated, however, was that it would not take immediate action, but would continue to evaluate all available options and leave it for the Biden Administration to determine what steps to take.

\n

Where the Biden Administration Is Now

\n

Nasim Fussell: So where are we now? We have a new Treasury Secretary, Janet Yellen, and we have a new USTR, Katherine Tai. Secretary Yellen has already engaged at the OECD and had bilateral discussions with key counterparts like French Finance Minister Bruno Le Maire. Ambassador Tai said in her Senate confirmation hearing that she will work closely with Treasury to address digital services taxes at the OECD, signaling that our focus really is going to be on getting this resolved multilaterally. However, notably on March 26, Tai's USTR made its first big announcement regarding next steps in its investigation of digital services taxes. USTR announced that it would be preserving its procedural options under Section 301 for taking possible trade actions on the investigations conducted on Austria, India, Italy, Spain, Turkey and the United Kingdom. As we noted earlier, the previous USTR found that the DSTs adopted by these trading partners do discriminate against U.S. digital companies. In its announcement, USTR also, however, noted once again that it's committed to finding a solution on the multilateral level, signaling that there will continue to be a focus on finding a solution at the OECD with our trading partners. USTR also announced that it would be terminating the investigations that the previous USTR did regarding the DSTs proposed by Brazil, the Czech Republic, the European Union and Indonesia. It indicated that none of these had adopted or implemented the DSTs that were under consideration when the investigations were conducted last year. So if any of these countries do proceed with adopting or implementing a DST, USTR may very well initiate new investigations. I think very notably, this announcement on March 26 was silent on the French DSTs, which we have discussed today and the taxes in place. One can speculate whether that is because any action taken now would be outside of the statutory period permitted under Section 301 or just a really a firm commitment perhaps between the United States and France in trying to resolve this multilaterally, but we shall see. This is something that we will be able to dove into and analyze a bit more deeply on a future podcast.

\n
","link":{"label":"Podcast: The Digital Economy and Tax","url":"/en/insights/media-entities/2021/04/podcast-the-digital-economy-and-tax","AbsoluteUrl":"//www.efaxnow.com/en/insights/media-entities/2021/04/podcast-the-digital-economy-and-tax","target":"","rel":""}},{"image":{"url":"/-/media/images/insights/media-entities/2020/12/mediabidenadministrationmexicorelationsstill.jpg","alt":"What Does a Biden Administration Mean for U.S.-Mexico Relations?"},"description":"International Trade Partners Francisco Sánchez, Carlos Véjar and Luis Rubio hosted an online panel presentation to discuss how the Biden Administration may impact U.S. and Mexico relations. They provide insights and likely scenarios on the expected approaches of an incoming Biden Administration regarding key issues and priorities related to U.S.-Mexico Relations. They also provide in-depth analysis regarding possible foreign policy implications as well as suggestions on how to best position your clients or company to prosper under a new administration.","link":{"label":"What Does a Biden Administration Mean for U.S.-Mexico Relations?","url":"/en/insights/media-entities/2020/12/what-does-a-biden-administration-mean-for-us-mexico-relations","AbsoluteUrl":"//www.efaxnow.com/en/insights/media-entities/2020/12/what-does-a-biden-administration-mean-for-us-mexico-relations","target":"","rel":""}},{"image":{"url":"/-/media/images/insights/media-entities/media_audio_still.jpg","alt":"sound waves"},"description":"

International Trade Partner Nasim Fussell joined the AgriTalk radio show to provide her perspective on potential trade issues that a Biden Administration may face, including Phase One with China. Additionally, the interview discusses the the American Farm Bureau Federation's announcement of its participation in the Food and Agriculture Climate Alliance. This group will be delivering more than 40 recommendations to Congress and the next presidential administration.

\n

Duration 46:28 (Ms. Fussell's portion begins at 13:23)

","link":{"label":"AgriTalk - November 17, 2020","url":"/en/insights/media-entities/2020/11/agritalk-november-17-2020","AbsoluteUrl":"//www.efaxnow.com/en/insights/media-entities/2020/11/agritalk-november-17-2020","target":"","rel":""}},{"image":{"url":"/-/media/images/insights/media-entities/2020/11/media_cato_institute_still.jpg","alt":"Cato Institute webinar still image"},"description":"International Trade Partner Nasim Fussell participated in a Cato Institute webinar discussion of the Biden Administration's potential approach to trade policy. During this webinar, speakers reviewed how the Trump Administration made changes to U.S. trade policy and discussed what kinds of decisions Biden will face when he takes office. They answered questions about the extent to which the administration will want to or can return to the trade policy that existed prior to the Trump presidency, what can be done about the tariffs enacted under Trump and how the administration will approach relationships with U.S. allies.
\n
\nDuration: 1:02:55","link":{"label":"Trade Policy in a Biden Administration: Back to Normal, or into the Great Unknown?","url":"/en/insights/media-entities/2020/11/trade-policy-in-a-biden-administration-back-to-normal","AbsoluteUrl":"//www.efaxnow.com/en/insights/media-entities/2020/11/trade-policy-in-a-biden-administration-back-to-normal","target":"","rel":""}},{"image":{"url":"/-/media/images/insights/media-entities/2020/11/media_witawebinar_still.jpg","alt":"WITA webinar still image"},"description":"International Trade Partner Nasim Fussell participated in a WITA webinar discussion of the implications of the 2020 presidential elections on U.S. trade policy. Ms. Fussell joined a bipartisan panel of professionals who served in senior roles in Congress for the discussion.
\n
\nDuration: 1:09:35","link":{"label":"WITA Post-Election Analysis with The Trade Insiders","url":"/en/insights/media-entities/2020/11/wita-postelection-analysis-with-the-trade-insiders","AbsoluteUrl":"//www.efaxnow.com/en/insights/media-entities/2020/11/wita-postelection-analysis-with-the-trade-insiders","target":"","rel":""}},{"image":{"url":"/-/media/images/insights/media-entities/2020/10/mediaimpactofuselectionsonlatinamericastill.jpg","alt":"Impact of U.S. Elections on Latin America still"},"description":"

Holland & Knight hosted an online panel presentation offering insights on the expected approaches of a first-term Biden Administration or second-term Trump Administration regarding key issues and priorities for Latin America. Partners Francisco Sánchez, Nasim Fussell and Jim Davis, along with Senior Policy Advisor Scott Mason, discussed areas including tariffs, the World Trade Organization (WTO) and the United States-Mexico-Canada Agreement (USMCA), as well as possible scenarios under each administration.

\n

View the presentation materials.
\nPlease note: The Cook's Report Electoral College Ratings included in the PowerPoint slides has been updated since this webinar to provide the most recent information.

\n

View a transcript of the recording.

\n

Duration: 56:04

","link":{"label":"Impact of U.S. Elections on Latin America","url":"/en/insights/media-entities/2020/10/impact-of-us-elections-on-latin-america","AbsoluteUrl":"//www.efaxnow.com/en/insights/media-entities/2020/10/impact-of-us-elections-on-latin-america","target":"","rel":""}},{"image":{"url":"/-/media/images/insights/media-entities/2020/10/media_preelection_series_trade_webinar_still.jpg","alt":"Pre-Election Series: Trade webinar still"},"description":"

Holland & Knight's experienced lobbyists and attorneys are focusing on the policy implications of the upcoming 2020 elections. The sixth program in this series focused on trade policy implications as a result of the elections.

\n

Partner Francisco Sanchez, the former U.S. Under Secretary of Commerce for Trade, and Partner Nasim Fussell, the former Senate Finance Committee Chief International Trade Counsel, shared insights on the expected approaches of the first-term Biden Administration or second-term Trump Administration regarding key issues and priorities in this area. They also discussed what to expect from the possible incoming House and Senate majorities and minorities.

\n

View the presentation materials.

\n

Duration: 49:19

","link":{"label":"Election 2020: Potential Impacts - Trade","url":"/en/insights/media-entities/2020/10/election-2020-potential-impacts-trade","AbsoluteUrl":"//www.efaxnow.com/en/insights/media-entities/2020/10/election-2020-potential-impacts-trade","target":"","rel":""}},{"image":{"url":"/-/media/images/insights/media-entities/2019/09/obtaining-a-product-exclusion-for-chinese-imports-webinar/media_obtaining_a_product_exclusion_for_chinese_imports_still.jpg","alt":"MediaObtainingaProductExclusionforChineseImportsStill"},"description":"

Starting October 1, the Trump Administration plans to raise the additional tariffs it placed on $250 billion worth of Chinese imports to 30 percent from 25 percent. These products are captured on U.S. Trade Representative (USTR) Lists 1, 2 and 3.

\n

List 3 ($200 billion annually) includes many U.S. consumer products, such as furniture, vacuums, lighting and plumbing fixtures, handbags, luggage, and food. At a 30 percent tariff for List 3 goods, it amounts to approximately $60 billion (annually) of additional costs to U.S. importers, manufacturers and consumers.

\n

The good news is that some of the List 3 products may qualify for an exclusion, saving a company potentially millions of dollars from all Section 301 tariffs paid from September 24, 2018, to one year after the granted exclusion. However, there is a short window as exclusion requests must be filed by September 30.

\n

You're invited to join Holland & Knight's International Trade Group for \"Obtaining a Product Exclusion for Chinese Imports.\"

\n

Attorneys Ron Oleynik and Andrew McAllister explain:

\n
    \n
  • how to file a Section 301 List 3 exclusion by September 30 and tips to successfully obtain an exclusion
  • \n
  • how to best position your company and clients for the broader U.S.-China trade issues
  • \n
","link":{"label":"Obtaining a Product Exclusion for Chinese Imports","url":"/en/insights/media-entities/2019/09/obtaining-a-product-exclusion-for-chinese-imports","AbsoluteUrl":"//www.efaxnow.com/en/insights/media-entities/2019/09/obtaining-a-product-exclusion-for-chinese-imports","target":"","rel":""}},{"image":{"url":"/-/media/images/insights/media-entities/2018/11/midterm-post-election-briefing-2018/videostillimage/mediapostelectionbriefingstill.jpg","alt":"Midterm Post Election Briefing 2018"},"description":"

Bloomberg Government and Holland & Knight's Public Policy & Regulation Group presented a live stream of our post-election briefing, during which panelists provided in-depth analysis of the 2018 midterm elections results. During the program, our featured panelists explored what the results might mean for key industry sectors, including trade, infrastructure and transportation, energy and environment, and healthcare and life sciences.

View the slides from the program and follow the conversation on Twitter with #askBGOVHK.

What Happened in 2018?

\"\"
Watch the video »

  • Greg Giroux, Reporter, Bloomberg Government

Transportation and Infrastructure

\"\"
Watch the video »

  • Heather Rothman, News Director, Bloomberg Government 
  • Shaun Courtney, Federal Transportation Reporter, Bloomberg Government 
  • Michael Friedberg, Senior Counsel, Holland & Knight 
  • Shawna Francis Watley, Senior Policy Advisor, Holland & Knight

Healthcare/Pharmaceuticals

\"\"
Watch the video »

  • Heather Rothman, News Director, Bloomberg Government
  • Alex Ruoff, Health Policy Reporter, Bloomberg Government
  • Michael Werner, Partner, Holland & Knight
  • Miranda Franco, Senior Policy Advisor, Holland & Knight

Energy and Environment

 \"\"
Watch the video »

  • Abby Smith, Reporter, Bloomberg Environment 
  • Dimitrios Karakitsos, Partner, Holland & Knight 
  • Benjamin Dunham, Senior Policy Advisor, Holland & Knight

Trade and Tariffs

\"\"
Watch the video »

  • Loren Duggan, Editorial Director, Bloomberg Government 
  • Sarah Babbage, Legislative Analyst, Bloomberg Government 
  • Ronald Oleynik, Partner, Holland & Knight 
  • Jim Davis, Partner, Holland & Knight
","link":{"label":"Midterm Post Election Briefing 2018","url":"/en/insights/media-entities/2018/11/midterm-post-election-briefing-2018","AbsoluteUrl":"//www.efaxnow.com/en/insights/media-entities/2018/11/midterm-post-election-briefing-2018","target":"","rel":""}},{"image":{"url":"/-/media/images/insights/media-entities/2017/06/what-are-the-chances-that-nafta-is-redone-at-all/videostillimage/mediaaudiostill.jpg","alt":"What Are The Chances That NAFTA Is Redone At All?"},"description":"

The Trump administration has brought up renegotiating NAFTA, but what are the chances of this happening? International & Cross Border Transactions Partner Ronald Oleynik gives his input on this matter.  

Duration: 5:21

","link":{"label":"What Are The Chances That NAFTA Is Redone At All?","url":"/en/insights/media-entities/2017/06/what-are-the-chances-that-nafta-is-redone-at-all","AbsoluteUrl":"//www.efaxnow.com/en/insights/media-entities/2017/06/what-are-the-chances-that-nafta-is-redone-at-all","target":"","rel":""}},{"image":{"url":"/-/media/images/insights/media-entities/2016/12/transportation-and-infrastructure-what-to-expect-f/videostillimage/mediatransportationtransitiontrumpstill.jpg","alt":"Transportation and Infrastructure: What to Expect From the Trump Administration and the 115th Congress"},"description":"

On November 30, Holland & Knight presented an overview of what to expect from the Trump Administration and the 115th Congress. As a follow-up presentation, this webinar takes a deeper look into the expected impact on transportation and infrastructure. Our lawyers and senior policy advisors provide analysis ahead of what is sure to be a year of change and historical importance.

Agenda

  • What We Know
  • Infrastructure & Financing
  • Congressional Perspective
  • Aviation Issues
  • Maritime Issues
  • Rail Issues
  • Motor Carrier Issues
  • Rules/Regulations Ripe for Review
","link":{"label":"Transportation and Infrastructure: What to Expect From the Trump Administration and the 115th Congress","url":"/en/insights/media-entities/2016/12/transportation-and-infrastructure-what-to-expect-f","AbsoluteUrl":"//www.efaxnow.com/en/insights/media-entities/2016/12/transportation-and-infrastructure-what-to-expect-f","target":"","rel":""}},{"image":{"url":"/-/media/images/insights/media-entities/2016/11/an-overview-of-what-to-expect-from-the-trump-admin/videostillimage/mediatrumpadministrationwebinarstill.jpg","alt":"An Overview of What to Expect From the Trump Administration"},"description":"

With a new presidential administration on the horizon, Holland & Knight presents an overview of what to expect from the incoming Trump Administration and the first session of the 115th Congress, including issues ranging from energy, taxation, environment, healthcare and local governments.

\n

Our senior lobbyists and lawyers provide analysis and respond to questions. In what is sure to be a year of change and historical importance, set your policy direction with the aid and insight of Holland & Knight's seasoned professionals in this webinar presentation.

\n

View the program materials.

\n

Duration 2 hrs and 44 minutes

","link":{"label":"An Overview of What to Expect From the Trump Administration","url":"/en/insights/media-entities/2016/11/an-overview-of-what-to-expect-from-the-trump-admin","AbsoluteUrl":"//www.efaxnow.com/en/insights/media-entities/2016/11/an-overview-of-what-to-expect-from-the-trump-admin","target":"","rel":""}}]">

狗万软件

Holland & Knight Alert"],"link":{"label":"Biden Administration Announces Tariff Trifecta","url":"/en/insights/publications/2021/03/biden-administration-announces-tariff-trifecta","AbsoluteUrl":"//www.efaxnow.com/en/insights/publications/2021/03/biden-administration-announces-tariff-trifecta","target":"","rel":""},"icon":{"url":null,"alt":null},"image":{"url":null,"alt":null},"date":"March 9, 2021","readingtime":"3 Minutes","source":null},{"metaData":["Holland & Knight Alert"],"link":{"label":"Newly Imposed U.S. Sanctions Target Burmese Military","url":"/en/insights/publications/2021/02/newly-imposed-us-sanctions-target-burmese-military","AbsoluteUrl":"//www.efaxnow.com/en/insights/publications/2021/02/newly-imposed-us-sanctions-target-burmese-military","target":"","rel":""},"icon":{"url":null,"alt":null},"image":{"url":null,"alt":null},"date":"February 16, 2021","readingtime":"5 Minutes","source":null},{"metaData":["Holland & Knight Alert"],"link":{"label":"OFAC Authorizes Payments to Venezuela's Maritime Authority After Recent SDN Listing","url":"/en/insights/publications/2021/02/ofac-authorizes-payments-to-venezuelas-maritime-authority","AbsoluteUrl":"//www.efaxnow.com/en/insights/publications/2021/02/ofac-authorizes-payments-to-venezuelas-maritime-authority","target":"","rel":""},"icon":{"url":null,"alt":null},"image":{"url":null,"alt":null},"date":"February 3, 2021","readingtime":"2 Minutes","source":null},{"metaData":["Holland & Knight Alert"],"link":{"label":"BIS Amends Regulations and Loosens Export Restrictions Involving Sudan","url":"/en/insights/publications/2021/02/bis-amends-regulations-and-loosens-export-restrictions","AbsoluteUrl":"//www.efaxnow.com/en/insights/publications/2021/02/bis-amends-regulations-and-loosens-export-restrictions","target":"","rel":""},"icon":{"url":null,"alt":null},"image":{"url":null,"alt":null},"date":"February 1, 2021","readingtime":"4 Minutes","source":null},{"metaData":["Holland & Knight Alert"],"link":{"label":"President Biden Signs Executive Order Strengthening Buy American Rules","url":"/en/insights/publications/2021/01/president-biden-signs-executive-order-strengthening-buy-american-rules","AbsoluteUrl":"//www.efaxnow.com/en/insights/publications/2021/01/president-biden-signs-executive-order-strengthening-buy-american-rules","target":"","rel":""},"icon":{"url":null,"alt":null},"image":{"url":null,"alt":null},"date":"January 27, 2021","readingtime":"6 Minutes","source":null}]">

新闻和标题

Law360","In the Headlines"],"link":{"label":"Biden Holds Off On Tariff Hike Against EU In Aircraft Fight","url":"/en/news/intheheadlines/2021/02/biden-holds-off-on-tariff-hike-against-eu-in-aircraft-fight","AbsoluteUrl":"//www.efaxnow.com/en/news/intheheadlines/2021/02/biden-holds-off-on-tariff-hike-against-eu-in-aircraft-fight","target":"","rel":""},"icon":{"url":null,"alt":null},"image":null,"date":"February 12, 2021","readingtime":null,"source":null},{"metaData":["","Financial Times","In the Headlines"],"link":{"label":"Biden’s Buy American Pledge Has Its Limits","url":"/en/news/intheheadlines/2021/01/bidens-buy-american-pledge-has-its-limits","AbsoluteUrl":"//www.efaxnow.com/en/news/intheheadlines/2021/01/bidens-buy-american-pledge-has-its-limits","target":"","rel":""},"icon":{"url":null,"alt":null},"image":null,"date":"January 27, 2021","readingtime":null,"source":null},{"metaData":["","Morning Trade, Politico Pro","In the Headlines"],"link":{"label":"USTR Pick Tai Aims To Make Trade ‘A Force For Good’","url":"/en/news/intheheadlines/2020/12/ustr-pick-tai-aims-to-make-trade-a-force-for-good","AbsoluteUrl":"//www.efaxnow.com/en/news/intheheadlines/2020/12/ustr-pick-tai-aims-to-make-trade-a-force-for-good","target":"","rel":""},"icon":{"url":null,"alt":null},"image":null,"date":"December 14, 2020","readingtime":null,"source":null}]">