In the weeks leading up to today’s publication of the Special 301 report, Indian officials were reportedly ready to file a challenge to the program in the World Trade Organization. That threat seems to have been avoided by the USTR refusing industry calls to list India as a “priority foreign country.” This follows USTRs decision to suspend a 301 investigation of Ukraine because of the political situation in that country. This leaves the 2014 list again with no priority foreign countries listed.
There had been a mounting industry campaign to elevate India to the PFC list this year. PFCs are under the most direct threat of trade sanctions under Special 301. NGOs and legal academics have submitted for many years that Special 301 violates the WTO when used to threaten unilateral trade sanctions on WTO members for conduct not adjudicated to violate the WTO’s rules.
The Special 301 report makes clear that USTRs decision about whether it would impose sanctions on a WTO member is a decision delayed, not ruled out, in the case of both countries. The 2014 Reports states that USTR will begin an out of cycle review of India, during which is could elevate India to a PFC listing. The situation in Ukraine will have to await much larger political questions being addressed in that country.
Also noteworthy, the Special 301 Report did not heed a chorus of calls orchestrated by the pharmaceutical industry, rebutted by Public Citizen, to elevate Canada from the Watch List to the Priority Watch List. The main complaint against Canada has been against judicial decisions invalidating several pharmaceutical patents under its so-called “promise doctrine.”