Back in February, I wondered whether Samsung could file an investor-state complaint -- under the KORUS FTA -- in the event that some of its components were excluded from the U.S. through a Section 337 determination. Recent developments in this area now offer up another possible complaint.
As everyone probably knows (and as Joel mentioned), the ITC excluded imports of some Apple products, but USTR overruled this determination. In a separate case, the ITC has now decided that certain Samsung products should be excluded. USTR will have to decide whether to overrule that determination as well.
Here's what I wonder. If USTR does not overrule the Samsung determination, does Samsung have a good investor-state complaint, arguing that the USTR decision to allow Apple imports but not Samsung imports violates national treatment, fair and equitable treatment, or some other provision?