GJIL Recent Volumes
Judge Leo M. Gordon
Michael G. Hodes and Nina C. Mohseni, Classification Determinations In The United States Court of International Trade Brought Under 28 U.S.C. § 1581(A)
This Article discusses a number of decisions by the United States Court of International Trade in 2013, where litigants invoked the court’s jurisdiction pursuant to 28 U.S.C. § 1581(a). The decisions discussed herein are intended to illustrate the judicial decision-making process and to demonstrate the diversity of imported articles that come before the court for classification under the Harmonized Tariff Schedule of the United States.
Daniel Cannistra and Adeoye O. Johnson, 2013 in Review: Scope and New Shipper Review Matters Before the Court Of International Trade
In 2013, the United States Court of International Trade (CIT) saw increased litigation involving the United States Department of Commerce’s (Commerce) interpretation of the scope of antidumping and countervailing duty (AD/CVD) orders and the initiation of new shipper reviews. Scope interpretation and new shipper initiations are fact-intensive determinations with sparse analytical frameworks. Historically, scope litigation in particular, was relatively uncommon, with the CIT granting substantial deference to Commerce in interpreting the scope of AD/CVD orders. Two factors account for the increase in scope litigation. First, Commerce’s increased emphasis on preventing the circumvention of AD/CVD orders has resulted in broader scope language, making it more difficult for importers and Customs and Border Protection (CBP) alike to interpret AD/CVD orders. Second, Commerce is aggressively amending AD/CVD orders after their initial publica- tion, resulting in a constant need for importers to evaluate and reevaluate the scope of AD/CVD orders, while CBP tries to keep pace as goods enter the country. The 2013 CIT scope decisions reflect a less intensive focus on Commerce’s analytical framework in scope determination and more on Commerce’s ability to factually support its determinations. This framework will reverse in 2014, with the Court of Appeals’ decision in Mid Continent Nail Corp. v. U.S. mandating a focus on providing coherent and consistent guidance to regulated parties in scope determinations.
Jordan C. Kahn, 2013 In Review: CIT Opinions Resolving Challenges to Commerce AD/CVD Decisions on Products Imported from NMEs Jordan C. Kahn
The United States Court of International Trade (CIT) in 2013 affirmed countervailing duty liability for products imported from non-market economy countries, finding legislation constitutional and Commerce Department discretion to assess such duties. The antidumpting duty cases recognized limited Commerce latitude in responding to the uptick in import fraud through means including consideration of adverse facts available (AFA), while expressing skepticism over AFA rates in the non-fraud context. Judicial concerns as Commerce stopped using India as the surrogate for China will guide the agency with its surrogate selection for Vietnam. While Commerce was afforded wide discretion for surrogate valuation, remands involved labor and market economy inputs. Commerce further experienced setbacks in evaluating independence from government control, countering targeted dumping, and assigning separate rates. When the issues that the CIT confronted in 2013 are appealed, the United States Court of Appeals for the Federal Circuit should give Commerce flexibility to induce cooperation and deter import fraud—means critical to ensuring antidumping duty/countervailing duty (AD/CVD) rate accuracy and preserving administrative integrity.
Joshua E. Kurland, Emerging Trends in the Court of International Trade’s 2013 Market Economy Jurisprudence
The Court of International Trade’s 2013 jurisprudence in antidumping and countervailing duty cases involving goods from market economy countries reflects emerging trends in international trade litigation in the United States. This Article summarizes significant decisions, while analyzing their impact on and relationship with broader issues that have been the focus of intense litigation. The Article also highlights issue areas that are likely to be sources of future litigation.
Adams Lee, CIT 2013: A Review of Appeals from the International Trade Commission
In 2013, the United States Court of International Trade (CIT) issued six decisions involving the antidumping (AD) and countervailing duty (CVD) determinations of the U.S. International Trade Commission (ITC) in original investigations or sunset reviews. Although most of these decisions involved a remand order for further consideration by the ITC, all of the decisions highlight how a properly deferential review by the CIT can result in improved ITC determinations by establishing a more consistent and transparent standard for what constitutes substantial evidence in support of the ITC’s findings.
Elon A. Pollack, Developments in Customs-Related Litigation in the Court of International Trade in 2013
Looking back at cases decided by the United States Court of International Trade in 2013, an overwhelming number of them concern antidumping and countervailing duties. Yet, select cases in 2013 addressed the imposition of civil penalties against importers, an exporter, and a customs broker. The court also affirmed a decision by the Secretary of Labor to deny worker benefits and efforts by the United States to collect liquidated damages and duties under surety bonds. These non-trade cases are surveyed in this Article.
Daniel L. Porter and Claudia D. Hartleben, Court of International Trade Decisions Rendered in 2013 Under 28 U.S.C. § 1581(I) Residual Jurisdiction
In 2013, the United States Court of International Trade rendered 159 decisions. Of those decisions, the Court exercised jurisdiction under 28 U.S.C. § 1581(i), the so-called “residual jurisdiction provision,” over some or all claims in twenty-one decisions. This Article discusses the more substantive decisions rendered in 2013 under § 1581(i). Before addressing the 2013 decisions, the Article first provides a brief background of § 1581(i).
Genevieve Fox, A Future For International Investment? Modifying BITs to Drive Economic Development
Since the conception of Bilateral Investment Treaties (BITs) in the late 1950s, developed (home) and developing (host) states have signed on to BITs with two distinct desires: home states seek to establish BITs in order to protect their investors and their investments from deleterious host state action, while host states sign BITs pursuant to the notion that such action brings increased inflows of foreign direct investment (FDI) and related economic development. This Note intends to demonstrate that while current BITs do protect home state investors and their investments, BITs do not necessarily bring increased inflows of FDI to host states, nor do they effectively promote host state economic development. With this framework in mind, this Note asserts that BITs can, if re-imagined, be used as a vehicle for simultaneously fostering investor protection and economic development. Finally, this Note proposes a model BIT series, which consists of three different BITs and their respective proposed provisions, aimed at achieving this end.
Margie-Lys Jaime, Relying Upon Parties’ Interpretation in Treaty-Based Investor-State Dispute Settlement: Filling the Gaps in International Investment Agreements
International Investment Agreements (IIAs) were designed for the promotion and protection of foreign investors and their investments. The whole idea of negotiating IIAs was to attract foreign investors by enhancing security and creating a depoliticized environment, which includes the establishment of an impartial dispute settlement mechanism. Although IIAs focus primarily on investors’ rights and expectations, host countries also have legitimate expecta- tions when subscribing to an investment treaty, such as stimulating economic development within the limits of their public policy. Those expectations might be substantially diminished by the lack of clarity and/or gaps in the treaty text. Moreover, experience has shown the necessity of preserving host states’ regulatory space for taking public policy measures, which might not have been foreseen in the investment treaties. This situation generates unsteadiness in the investors’ and host states’ rights, appealing for the rebalance of the status quo. As IIAs are the applicable law in treaty-based investor-state dispute settlement (ISDS), arbitral tribunals have turned to the task of interpreting the text. Such interpreta- tion accomplished by arbitral tribunals might in fact surpass the tribunals’ legitimate power to settle the disputes, creating inconsistent and conflicting decisions. This Note advocates for states taking an active role in interpreting IIAs and filling the gaps during an ISDS, even in the absence of specific rules governing the intervention of non-disputing parties to the ISDS. In this sense, treaty parties’ intervention would be addressed from different perspectives as a mechanism to be used by arbitral tribunals during an ISDS. This Note concludes that the recourse to treaty parties’ interpretation by arbitral tribunals is essential for rebalancing investors’ and host states’ rights and preserving the legitimacy and credibility of the ISDS system.
Abraham Shanedling, Removing Weapons of Mass Destruction from the World’s Most Volatile Region: How to Achieve a WMD-Free Zone in the Middle East
Eliminating weapons of mass destruction (WMD) from the Middle East continues to be a pressing issue of both regional and global security concern. Several other regional state groups have already expanded on the Nuclear Non-Proliferation Treaty by establishing nuclear weapons free zone (NWFZ) treaties, however the proposal to establish a NWFZ or an expanded WMD free zone (WMDFZ) in the Middle East has long remained merely an aspirational goal. This Note examines the historical and present challenges facing the creation of a Middle East WMDFZ treaty and outlines various steps that regional parties should take to achieve such a zone. Drawing from the experiences of other regions in establishing NWFZs, the obligations of those regional treaties, and global non-proliferation treaties and resolutions, this Note recommends a series of short-term confidence-building measures to break the impasse in negotiat- ing a Middle East WMDFZ and presents a set of core components for a future zone treaty.