The Bush Administration, despite its dwindling days in office, continues to press for a meaningful legacy on trade. More importantly for the time between today and the 2010 mid-term Congressional elections, though, is the extent to which the Bush team is using its dying days to establish institutional mechanisms to press its trade agenda into the future. This last ditch effort proceeds on several levels.

Free Trade Agreements

The White House continues to press ratification of the KORUS and Colombia FTAs upon a reluctant Congress. There is no chance for either agreement to be taken up for consideration before the 110th legislature closes, and President Bush has acknowledged as much in direct meetings with Korean President Lee. The Colombia deal, meanwhile, has been the subject of curious speculation on Capitol Hill, as the Senate parliamentarian issued an opinion that fast track TPA authority may still apply to the FTA for consideration in the next Congress. Such a development, however, would necessitate a new White House that supported a vote on the deal.

Investment

The summer months have witnessed a surge in political activity to secure the launch of negotiations toward bilateral investment treaties with key economies in Asia. USTR is moving to open negotiations with Vietnam, India and China on investment before January 20, 2009. Institutionally, the formal start of negotiations would create diplomatic commitments to these trade partners that should offer a level of durability through the transition to a new administration. Lacking a launch, the conventional wisdom holds that a Democratic Administration would refuse new negotiations for at least its first year in office.

Substantively, however, expect the 111th Congress to exert more control over the content and objectives of investment agreements. Pressures building from key Democratic constituencies urge greater flexibility for sovereign regulatory authority, and limits upon investment rights in new bilateral investment treaties. The prevailing U.S. “Model BIT” is almost certain to experience change by 2010.

Sectorals and Regionals

The Administration has also pursued a collection of agreements to further the nation’s trade security in a variety of ways. The Anti-Counterfeiting Trade Agreement is the first advanced plurilateral attempt at IPR reform since the WTO TRIPs agreement entered into force. Industry is already looking to launch a similar effort via WIPO in the area of Internet trademark piracy. The joint U.S.-Japan working relationship on the ACTA has set a noteworthy precedent; a key test facing a new Administration will be extending this mode of cooperation into other areas of global trade.

The summer conclusion of trade and investment cooperation agreements with the South African Customs Union and the East African Community turns a welcome page on years of prolonged, difficult negotiations in Africa. These agreements, particularly the agreement with SACU, also mark a shift in trade policy more generally oriented to the concerns of developing economies that should be preserved in any new administration. Strategically, although of minimal initial value to the U.S. economy, these agreements denote a return of U.S. initiative in a quietly rising competition with China for influence in key African regions.

The spate of activity on trade from June-August demonstrates the Bush team’s determination to take back the lead on trade policy lost to Congress during the politically charged efforts toward a “bipartisan compromise” on trade this past May. The Administration has sought to advance policy objectives through means not subject to full Congressional ratification, and to launch diplomatic vehicles with trade partners that will provide durability against the political pressures coming in 2009.