GJIL Recent Volumes
Judge Timothy C. Stanceu, full text
Jeffrey D. Gerrish and Luke A. Meisner, U.S. Court of International Trade Overview: Non-Market Economy Cases in 2012
In 2012, the U.S. Court of International Trade (CIT) advanced its jurisprudence related to antidumping proceedings involving nonmarket economy (NME) countries in a number of key areas. First, the CIT reviewed the evolving methodology used by the U.S. Department of Commerce (Commerce) for valuing labor in a NME. It upheld both an interim labor methodology and a new labor methodology used by Commerce but established certain limits on the implementation of these two methodologies based on the facts of particular cases. Second, the CIT required Commerce to more rigorously evaluate the reliability of certain data used to value raw material inputs for NME producers. Third, the CIT upheld Commerce’s application of adverse facts available to respondents who failed to cooperate in NME antidumping proceedings under a broad range of circumstances. However, the CIT was split in two decisions regarding whether Commerce could apply an adverse inference to determine a non-cooperating respondent’s entitlement to an antidumping duty rate separate from the NME-wide rate. The CIT was also split regarding the application of adverse facts available to NME respondents whose suppliers failed to provide data regarding their factors of production. In addition, the CIT signiﬁcantly limited Commerce’s discretion in calculating rates for non-cooperating respondents based on adverse facts available. Fourth, the CIT began to show increasing concern with the growing trend of circumvention and evasion of antidumping duty orders on NME countries. Finally, the CIT issued three decisions in the NME arena that, while not part of a broader pattern of cases, represent potentially signiﬁcant decisions in their own right. These decisions address Commerce’s selection of a country to serve as the primary surrogate market economy country in a NME case, Commerce’s determination of separate rate status for a company controlled by a state-owned enterprise, and Commerce’s policy of declining to conduct administrative reviews of antidumping duty orders for respondents with no unliquidated entries of subject merchandise.
Matthew R. Nicely and Robby S. Naoufal, 2012 U.S. Court of International Trade Decisions on Department of Commerce Market Economy Trade Remedy Decisions
This Article reviews the 2012 decisions of the Court of International Trade involving appeals by interested parties in Department of Commerce antidumping and countervailing proceedings for market economy countries. The Article outlines and analyzes the most important and sometimes recurrent issues addressed by the Court in 2012. Among the issues addressed were exhaustion of administrative remedies, zeroing of negative dumping margins, application of adverse inferences, collapsing entities, model matching methodologies, and calculation of production costs and sales expenses.
Neal J. Reynolds, The Court of International Trade’s Review of the International Trade Commission’s Injury Determinations in Antidumping and Countervailing Duty Proceedings in 2012: An Overview and Analysis
In 2012, the U.S. Court of International Trade issued several decisions addressing the International Trade Commission’s cumulation and likely injury analysis in sunset reviews, its injury and threat ﬁndings in original investigations, and its domestic like product analysis. The Court afﬁrmed the Commission’s determinations in each appeal, applying the appropriate level of deference to the Commission’s determinations under the statutory standard of review. The Court’s decisions reﬂect a traditional judicial approach to review of the Commission’s action under the antidumping and countervailing duty laws.
Lawrence M. Friedman and Christine H. Martinez, The Court of International Trade’s Denied Protest Jurisprudence in 2012
In 2012, the Court of International Trade considered a number of issues related to U.S. Customs and Border Protection’s denial of an administrative protest. Those decisions provide new guidance for importers involving questions of law and evidence, the use of experts in commodity classiﬁcation cases, determining the “principal use” of an article for classiﬁcation purposes, and the role of amici, intervenors, and patent jurisprudence in customs cases.
The Court also considered issues related to the content, sufﬁciency, and timeliness of the underlying administrative protest and failures that resulted in a lack of subject matter jurisdiction vesting with the Court. These issues and the Court’s decisions are analyzed and discussed in this overview of 2012 Court of International Trade opinions arising under the jurisdiction conferred in 28 U.S.C. § 1581(a).
Nancy A. Noonan, Court of International Trade Decisions during 2012 under 28 U.S.C. § 1581(I) Residual Jurisdiction
The Court of International Trade declined to use its residual jurisdiction in cases where the Court determined other jurisdictional provisions were available to plaintiffs. Where the Court reached the merits of cases brought pursuant to the residual jurisdiction provision, the plaintiffs’ relief at surviving the jurisdictional issue was short-lived. Those cases, which all involved challenges to the same statutory provision known as the Continued Dumping and Subsidy Offset Act, were dismissed for failure to state claims upon which relief could be granted. In short, the residual jurisdiction cases of 2012 do not provide any encouragement to plaintiffs who want to use the Court’s residual jurisdiction for favorable decisions on the merits. Nevertheless, it remains clear that the Court will use its residual jurisdiction in appropriate circumstances where its other jurisdictional provisions were not available to the plaintiffs.
Stephen C. Tosini, Developments in Customs Penalties in the Court of International Trade in 2012
The Court of International Trade is an Article III federal court created by Congress to address challenges to federal governmental actions involving international trade and afﬁrmative civil actions brought by the government to recover lost customs duties or penalties for violations of the customs laws. The court’s exclusive jurisdiction is narrowly deﬁned by statute to include speciﬁc matters, including certain afﬁrmative civil enforcement actions brought by the government against importers and customs brokers.
In its recent decisions related to afﬁrmative civil enforcement, the court has lessened its focus on the conduct of violators and turned its scrutiny towards the actions of U.S. Customs and Border Protection (CBP), requiring that the agency closely follow all administrative procedures before the government may sue a violator. This renewed scrutiny of government action primarily relates to two areas. First, unlike earlier decisions which focused on defendants’ conduct in penalty actions, the court has continued its recent trend of strictly requiring the government to exhaust administrative remedies during penalty proceedings, regardless of the defendants’ conduct or whether any administrative shortcoming prejudiced the defendant. Second, the court has begun to more closely scrutinize motions for default judgment in afﬁrmative enforcement actions.
The court also issued two other noteworthy decisions related to customs enforcement beyond the trend of focusing on CBP’s administrative actions. The court ﬁrst enforced CBP’s regulation which mandates that a carrier is responsible for duties owed on merchandise that is entered into the United States for re-exportation should the carrier be unable to establish that the merchandise was, in fact, re-exported. Second, the court declined to enjoin a district court action between an importer and a surety, in which the surety sought subrogation from the importer for amounts paid to CBP.
Beverly A. Farrell, Developments in Jurisdiction under 28 U.S.C. § 1581(A) and Customs Bond Enforcement in the U.S. Court of International Trade in 2012
This Article discusses several decisions issued by the United States Court of International Trade in 2012 that address the scope of the court’s jurisdiction commenced pursuant to 28 U.S.C. § 1581(a). Taken together, these decisions reﬂect that the court narrowly construes the scope of its own jurisdiction under § 1581(a). This Article also discusses a decision, currently on appeal, concerning whether the United States is entitled to equitable interest and interest pursuant to 19 U.S.C. § 580 when the government commences a collection action upon a customs bond.
Jordi de la Torre, The Hague Choice of Court Convention and Federal Power over State Courts
This Note addresses some of the constitutional issues that would arise if Congress enacted a statute to implement the Hague Choice of Court Convention. Congress could take such action under its Commerce Power or under its power to implement treaties. Because such a statute would regulate the procedures used by state courts adjudicating state law cases, it raises speciﬁc federalism concerns. This Note addresses those concerns and concludes that none of them is a bar to congressional action. State court procedures are not shielded from federal regulation. Even if Congress could not regulate state court procedures directly, however, it could federalize substantive law and then impose its choice of procedures as “part and parcel” of the newly created federal rights or as a necessary measure for its effective vindication.
Kate Hadley, Do China’s Bits Matter? Assessing the Effect of China’s Investment Agreements on Foreign Direct Investment Flows, Investors’ Rights, and the Rule of Law
Countries around the world pursue international investment agreements as an important component of their foreign policies. Government spokespeople and international organizations assert that investment agreements increase foreign direct investment (FDI) and support investors’ rights and the rule of law in developing countries. It is far from clear, however, whether investment treaties actually affect FDI ﬂows or developing countries’ legal systems. There have been few studies of the effects of investment agreements, and those that exist have advanced conﬂicting conclusions. This Note ﬁlls this gap in our understanding of investment agreements by analyzing the effects of the fastest-growing and most important bilateral investment treaty (BIT) program in the world: China’s.
This Note argues that China’s BITs seem to have been effective at promoting inbound FDI in China. On the other hand, they do not seem to have increased FDI ﬂows into China’s developing country treaty partners; this applies both to aggregate FDI inﬂows and to FDI from China alone. This suggests that, while BITs serve as a credible commitment by the Chinese government to property protection and liberal investment policies, China’s BITs with other developing countries may serve primarily political, rather than economic, purposes.
With respect to legal rights under the treaties, this Note argues that foreign investors’ rights under Chinese law have expanded and become more enforceable due to changes in the language of China’s BITs, and that these changes may promote rule of law development in China. The pro-investor and pro-rule of law changes to treaty language have occurred primarily through China’s BITs with developed, liberal partner countries. This suggests that the BIT programs instituted by developed countries and developed country groups, like the Organisation for Economic Cooperation and Development and the European Union, have been effective policy instruments for increasing investment ﬂows and strengthening investors’ rights and the rule of law. Overall, therefore, this Note argues that, for China and the developed democracies, BITs seem to be achieving their declared goals of increasing inbound FDI into China and promoting property rights and the rule of law.