Volume 43, Issue 1 (Fall 2011)
Foreword
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By: Judge Judith M. Barzilay
Foreword: It is my pleasure this year to join my colleagues on the bench of the U.S. Court of International Trade (“CIT”) who have previously intro- duced this worthy commentary on our yearly jurisprudence to our bar and other interested members of the legal community. The Court appreciates the hard work and many hours it took to research, write, edit and publish these fine articles.
When I joined the Justice Department’s International Trade Field Office in 1984, I had little idea how important customs and trade law would be to my professional future. I quickly recognized, though, that something about this very specialized area of the law was extremely appealing. Despite the esoteric nature of the legal concepts with which our bar engages, their sweeping and material impact is readily appar- ent. In particular, I continue to take great pleasure in dealing with and learning about tangible products, from the wood flooring at issue in the first case I tried as a new Justice Department attorney to Russian nesting dolls, electronics and complex chemicals. To this day, as I continue to learn the intricacies of our field, I find that the application of conceptual legal principles to concrete business transactions is endlessly fascinating.
The articles in this volume demonstrate this interesting interplay by examining the spectrum of recent cases to come before the CIT and the Court of Appeals for the Federal Circuit (“CAFC”). In the trade remedies arena alone, namely those cases governed by 28 U.S.C. § 1581(c) and increasingly arising under the Court’s “residual jurisdic- tion” pursuant to 28 U.S.C. § 1581(i), our Court and the CAFC considered a number of important questions: Whose goods will be affected by antidumping and countervailing duty orders and the set- ting of those margins? What degree of evidence and analysis must the International Trade Commission produce to ensure that its injury determinations will pass muster upon judicial review? What will be the effective date of an agency redetermination implementing a World Trade Organization ruling adverse to U.S. practice? How should goods from a purported non-market economy be treated and can they be subject to both antidumping and countervailing duties? Our court addressed all these questions in 2010, and several are now on appeal at the CAFC. In addition, the issue of zeroing in antidumping investiga- tions and reviews has resurfaced and our Court and the CAFC have issued several important opinions on the use of facts available, espe- cially in the context of adverse facts available. Decisions on these issues and others like them have far-reaching consequences for a variety of businesses in the United States and around the world.
As usual, several customs cases brought under 28 U.S.C. § 1581(a) in 2010 dealt with important procedural issues, including the implication of the two Supreme Court decisions that arguably changed the stan- dard governing the sufficiency of pleadings: Bell Atlantic Corp. v. Twom- bly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). (The Twombly/Iqbal standard also arose in an antidumping case and in the civil penalty and liquidated damages context.) While narrow, the issue of the impact of these two decisions stands to affect in concrete ways the burden placed on plaintiffs in cases before the CIT. Several other § 1581(a) cases involved claims relating to the liquidation process in antidumping and countervailing duty proceedings. The majority of these cases, however, dealt with the classification of merchandise, which, as our bar knows well, governs the admissibility of goods into the country and the amount of duty importers pay and, therefore, is a vitally important issue for the entire business community. Interesting classification issues involved goods ranging from parts of furniture to merchandise entered under various headings and subheadings of the frequently litigated luggage and data processing provisions.
In short, the normal work of the Court goes on. In 2010, the Court issued 142 opinions, 83 involving antidumping and countervailing duty cases and 28 under the denied protest provision of § 1581(a). In only seven cases did the government as plaintiff seek to collect penalties, duties or liquidated damages. As new issues arise before the Court in 2011, looking back on the previous year’s jurisprudence is not only useful but is a truly necessary endeavor.
After thirteen years on the bench of the CIT, I assumed senior status in June 2011. As I leave the ranks of active judges, I would like, once again, to thank our bar for its excellent standards of legal advocacy, the courtesy and civility it almost always displays during litigation before us and its willingness to engage in thoughtful reflection about the Court and the impact of its jurisprudence on litigants and global trade, as exemplified by the excellent articles prepared for this issue of the Georgetown Journal of International Law. I know the Court and the CAFC, as well as all attorneys who practice before them, will profit greatly from the scholarship and expertise demonstrated in these pages.
Practitioner Commentaries
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By: Victor Mroczka
Abstract: U.S. Court of International Trade decisions in 2010 of U.S. International Trade Commission determinations reflected the ongoing tug-of-war between the Court and the agency as to the amount of evidence and analysis required for the agency to legally discharge its obligation under U.S. law. This article discusses three relevant cases that address whether a final determination was supported by substantial evidence on the record or otherwise in accordance with law or whether further remand was necessary. The cases discussed herein do not ultimately and conclusively resolve the “evidence and analysis” issue, but contribute to the ongoing dialogue between the Court and the agency as to what is ultimately necessary to satisfy and conclude a Court’s review.
By: Claudia Burke and Melissa M. Devine
Abstract: This article reviews some of the more significant 2010 decisions from the Court of International Trade. Focusing solely upon market economy antidumping and countervailing duty issues, the article provides analysis of the decisions. The article uses as a framework the issues that arise chronologically during the normal life of a Court of International Trade case, from injunctions through revocation of an order, and discusses the seismic shifts in zeroing cases and other general trends in the Court’s treatment of the substantive merits issues raised by Department of Commerce determinations.
By: Craig A. Lewis, Jonathan T. Stoel, and Brian S. Janovitz
Abstract: A review of opinions issued by the U.S. Court of International Trade (CIT) in 2010 reveal particularly noteworthy developments in the recent antidumping and countervailing duty determinations by the U.S. Department of Commerce (Commerce). First, several 2010 opinions suggest that the CIT, with support from the Federal Circuit, is tightening disciplines on Commerce’s application of “adverse facts available” (AFA). These cases demonstrate a more searching scrutiny by the CIT into the circumstances warranting application of AFA, the scope of information for which AFA may be applied, the parties to whom AFA may be applied, and the selected AFA rate itself. A true shift in judicial policy would be welcome as the previous lack of standards in this important area possibly encouraged increasing abuse of Commerce’s AFA authority.
Second, the CIT continued to address the controversy over Commerce’s decision to impose both countervailing duties and non-market economy antidump- ing duties on Chinese goods imported into the United States. In GPX II, the CIT held that Commerce’s remand solution to the “double remedy” problem did not adequately address the legal and practical difficulties the court had identified in GPX I. A second remand determination was issued in response to GPX II, and subsequently was appealed to the Federal Circuit. Commerce has refused to change its AD/CVD methodologies in subsequent investigations and administra- tive reviews involving Chinese exports until the final resolution of GPX in the Federal Circuit.
Finally, it is difficult to discern whether the Supreme Court’s recently enunci- ated standards in Twombly and Iqbal have raised the bar to any significant degree in terms of the level of specificity and support required in a CIT complaint in order to withstand a motion to dismiss. However, it is still relatively early in the development of jurisprudence under Twombly, and its limited application may reflect a concomitant enhancement of the quality of complaints as practitio- ners face the uncertainty of its application.
Court of International Trade Decisions During 2010 Under 28 U.S.C. § 1581(i) Residual Jurisdiction
By: Patrick C. Reed, Philip Yale Simons, and Jerry P. Wiskin
Abstract: CIT decisions under its § 1581(i) residual jurisdiction during 2010, as in past years, are noteworthy for presenting particularly arcane legal issues. One group of cases addresses the availability of judicial review under residual jurisdiction, encountering new factual patterns and requiring probing analysis of complex statutory frameworks. Other cases under the court’s residual jurisdic- tion reach the merits, but remain arcane because they arise in obscure corners of customs and international trade law. In 2010 these decisions on the merits address issues in customs bond law and the liquidation of antidumping entries. In its most noteworthy residual jurisdiction case during the year, the CIT held that it possesses supplemental jurisdiction to hear a private plaintiff’s claims against private defendants, as long as those claims are within the same case or controversy as the plaintiff’s claims against the government.
By: Frances P. Hadfield and Amanda M. Simpson
Abstract: This article discusses the substantive decisions made by the U.S. Court of International Trade (CIT) pursuant to its 28 U.S.C. § 1581(a) jurisdiction in 2009 and 2010.
By: Michael Roll
Abstract: This article reviews the decisions issued by the U.S. Court of International Trade (CIT) in 2010 where the United States government was the plaintiff. Known as “1582 cases” in reference to 28 U.S.C. § 1582, the section granting the CIT jurisdiction over certain types of collection actions brought by the United States government, the CIT’s decisions in 2010 offer three main teachings to the trade community. First, the Court continues to ensure that the government follows appropriate administrative procedures before taking the more drastic step of initiating a collection action against a private party. Second, the government also must take care in following appropriate judicial procedures and require- ments if it is to successfully sue private parties for violations of U.S. trade laws. Third, Customs must follow its own administrative rulings and practice and not change them without notice to the trade community.
Notes
By: Benjamin J. Bay
Abstract: The Millennium Development Goals set a target of halving the number of people who live with hunger and food insecurity by the year 2015. The Goals also aim to further develop an open and non-discriminatory international trading system, while at the same time addressing the needs of the world’s least developed countries. But are these goals compatible given the direct relationship between agricultural trade policy and food security issues, given that the Doha Develop- ment Round is currently deadlocked over agricultural trading schemes?
The World Trade Organization’s activities, in partnership with the World Bank and other organs of the United Nations, can support efforts to meet the short-term goal of the 2015 Millennium Development Goals targets on food security. But more importantly, they are vital to sustaining the gains made in developing countries beyond the Millennium Development Goals deadline. This Note maps out a basic framework of the issues between trade and food security, the effects of the interests of key players on the trade negotiations, and prior attempts by the World Trade Organization to improve food security in developing nations. Finally, it suggests a pragmatic way to break the Doha Round deadlock while maximizing the potential of the Doha Agricultural Negotiations so the mechanisms put in place can be used to sustain the legacy of the Millennium Development Goals for years to come.
Making Free Trade Fair: How The WTO Could Incorporate Labor Rights And Why It Should
By: Joshua M. Kagan
Abstract: Labor rights protections for workers participating in international trade have been a part of United States trade pacts and preference programs since the Tariff Act of 1890. These worker protections have gained increased attention in the modern era, as they have become a linchpin for securing bipartisan support of trade agreements in the U.S., a means of promoting international human rights, and a prevalent embodiment of the sustainable development and “fair trade” movements. However, even as labor chapters have become a mainstay in U.S. and European trade agreements, the World Trade Organization has chosen not to directly incorporate labor rights into its negotiating rounds. This note argues that the labor provisions of U.S. trade agreements and preference programs provide a viable model for integrating these same protections into the WTO system. Moreover, this note contends that as the largest multilateral framework in the world committed to trade, WTO has both a moral and an economic imperative to include worker protections.