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GJIL Recent Volumes

Volume 48

Issue 1

FOREWORD

Judge Claire R. Kelly

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ARTICLES

Shara L. Aranoff, Sonam Patel, and Molly J. Doggett, A Review of the Court of International Trade's 2015 Decisions Addressing Trade Remedy Determinations of The U.S. International Trade Commission and the Court's Decisions Pursuant to 28 U.S.C. § 1581(i)

In 2015, the United States Court of International Trade (CIT or court) issued seven opinions involving anti-dumping and countervailing duty injury determinations by the U.S. International Trade Commission (Commission or ITC). In addition, the court decided seven cases which touched on the court’s residual jurisdiction under 28 U.S.C. § 1581(i). This Article summarizes and assesses the significance of both groups of cases. With respect to appeals from the ITC, the court showed considerable deference to the agency, affirming its choice of methodology for analyzing record data relating to a variety of statutory injury factors. The court also supported the ITC’s interpretation of the “by reason of” causation standard, an area left ambiguous by several Federal Circuit decisions. In cases involving the court’s residual jurisdiction, the court continued to set a high bar for when invoking section 1581(i) is appropriate. In cases involving Customs’ application of deemed liquidation and its enforcement of antidumping and countervailing duties, the court agreed to hear only those cases where no action by the plaintiff could have qualified it to bring its claim under another jurisdictional provision.
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Thomas M. Beline and Allison Hollander, 2015 in Review: Procedural and Scope Matters Before the U.S. Court of International Trade

This Article summarizes the 2015 U.S. Court of International Trade (CIT) opinions addressing questions of procedure and whether imported products fall within the scope of antidumping and countervailing duty orders. It includes an analysis of the Icdas case in relation to recent questions surrounding jurisdiction and claims-processing rules in the federal courts. This Article also discusses the effects of three recent cases on the exhaustion doctrine at the CIT, who may be a party to the appeal and when, and the Court’s resolution of the tension between Commerce’s practice in determining country of origin and the statute’s anticircumvention proceedings in Bell Supply and Peer Bearing.
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Maureen E. Thorson, 2015 Cases Involving Adverse Inferences and Surrogate Values at the U.S. Court of International Trade

The use of adverse inferences in calculating anti-dumping and countervailing duty margins and the selection of surrogate values in non-market economy cases and are areas of perennial contention in litigation before the U.S. Court of International Trade. In this Article, Maureen Thorson describes how the court’s 2015 opinions provide agencies and practitioners alike with new guidance on these issues. Refining prior case law with respect to the impact of corroboration and “commercial reality” on the use of adverse inferences, the Court of International Trade’s 2015 opinions place renewed emphasis on properly determining the circumstances under which such inferences are warranted. In the arena of surrogate valuation, the court also provided significant clarifications regarding the legal standards for selecting surrogate countries, while dealing with increasingly complicated issues arising from the selection—and adjustment—of surrogate financial statements.
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Patricia M. McCarthy, Court of International Trade Decisions Issued During 2015 Concerning 28 U.S.C. § 1582

Charged by Congress with responsibility for protecting the revenue, U.S. Customs and Border Protection has long struggled with imports of merchandise that are subject to special duties intended to remedy unfair trade practices. Often the importers of this type of merchandise default on Customs’ bills for these duties, leading Customs to demand additional security for the imports and the United States to initiate litigation to collect on these customs bonds. In 2015, the United States Court of International Trade issued an unusually large number of decisions resolving collection issues ranging from Customs’ ability to impose enhanced bonding requirements on importers, to the types of interest to which a surety may be subject in a collection action brought by the United States, to the standards the United States must satisfy to obtain a judgment for duties and civil penalties. Although generally providing clarity, the court also exposed certain areas of tension in the customs civil penalties statute.
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Robert A. Shapiro, Review of 2015 Customs Cases Before the Court of International Trade

This article discusses the decisions of the U.S. Court of International Trade in 2015. The article focuses on the hurdles that must be observed for the court to assert jurisdiction over the issue. The article then discusses the identification of customs rulings, interpretive decisions and treatments that trigger statutory procedural rights and the enforceability of those rights. Finally, two classification decisions of the CIT are examined because of their potential impact on the classification of devices that are connected to automatic data processing machines.
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Shana Hofstetter and Bernd Janzen, 2015 Court of International Trade Review: From Targeted Dumping to Differential Pricing

This Article summarizes the 2015 U.S. Court of International Trade cases concerning the U.S. Department of Commerce’s calculations of dumping margins under its evolving regimes of targeted dumping and differential pricing. By reviewing how the U.S. Department of Commerce implemented its change in practice, and how the U.S. Court of International Trade viewed this implementation, practitioners will gain a better understanding of the two institutions’ roles and interactions.
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NOTES

Brittany Cohan Baclawski, Re-Thinking the WTO's Relationship to International Labor Standards: Is it Finally Time for a Global Approach?

This Note explores the World Trade Organization’s (WTO’s) relationship to labor standards. It considers the possibility of WTO adoption of international labor standards, analyzing the arguments in favor of and against this approach. It then analyzes the use of free trade agreements as an alternative mechanism for both the setting and enforcement of labor standards, using previous free trade agreements and the Trans-Pacific Partnership Agreement as vehicles through which to explore the pros and cons of this approach. It concludes with recommendations regarding how the WTO can amend its organizational documents in order to adopt international labor standards.
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Sherri J. Deckelboim, Consumer Privacy on an International Scale: Conflicting Viewpoints Underlying the EU-U.S. Privacy Shield Framework and How the Framework Will Impact Privacy Advocates, National Security, and Business

Despite differing standards for online privacy and data transfers, the United States and the EU exchange vast amounts of personal data every day as part of the transatlantic economy. However, recent revelations from Edward Snowden concerning U.S. data surveillance practices have led to distrust of the United States among its trade partners, including the EU. As a result, the two parties have negotiated new guiding principles for data transfers in the form of the EU-U.S. Privacy Shield Framework. The Privacy Shield reportedly accounts for modern developments in EU human rights law and modifications to U.S. surveillance practices following the Snowden revelations and subsequent backlash. Through this instrument, the United States attempts to provide for greater privacy protections and recourse methods as compared to prior trade instruments, yet strong similarities to prior instruments will likely draw backlash against the Privacy Shield from privacy advocates. In addition, the voluntary nature of the Privacy Shield presents businesses with a choice of whether to comply with the contentious Privacy Shield or to pursue alternative options that may result in challenges for national security, such as encryption. This Note evaluates the potential impact of the Privacy Shield through the lens of the differing historical backgrounds of U.S. and EU privacy practices. It also traces the trajectory of attempts by the United States and EU to bridge the gap between privacy practices for the purpose of data privacy in trade.
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Michael Flynn, China: A Market Economy?

This Note analyzes China’s status as a nonmarket economy from the perspectives of both the World Trade Organization (WTO) and U.S. law. The Note begins by providing background information about nonmarket economies and how nonmarket economy status impacts international trade. The Note then discusses and analyzes the controversial topic of how to interpret certain provisions in China’s Protocol of Accession to the WTO. The analysis of China’s Protocol of Accession, from the perspectives of both a textual analysis and under WTO law, concludes that WTO members can treat China as a nonmarket economy, both currently and in the future, regardless of a sunset provision included in China’s Protocol of Accession. Finally, the Note reviews the U.S. statutory framework for nonmarket economy treatment of China under applicable U.S. law and concludes that the relevant factors do not present a finding of a market economy in China.
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Sean M. Topping, Defying Schengen Through Internal Border Controls: Acts of National Risk-taking or Violations of International Law at the Heart of Europe?

Despite recently celebrating its thirtieth anniversary, the Schengen Area—with its free movement of people across twenty-six European states— has drawn renewed notoriety and criticism following the Syrian refugee crisis. Despite beginning as ad hoc cooperation amongst states, the Schengen Protocol has become part of the foundation of the European Union and of what it means to be “European.” Following the massive influx of Syrian refugees into Europe in the fall of 2015, however, some states implemented temporary border checks along internal Schengen boundaries and past crises indicate a willingness to go further in years to come. While states could conceivably achieve internal consensus in order to erect permanent or semi-permanent controls as a matter of politics, border controls would have negative political, economic, and social consequences across borders. While states may defend advanced border controls as a necessity, such actions are ripe for legal challenge from other states or individuals whose rights would be infringed. Following “Brexit” and other states threatening withdrawal from the European Union—in part a response to fears of unchecked migration—Schengen’s fate remains uncertain but will undoubtedly remain a prominent feature of law and politics in the future.
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