GJIL Recent Volumes
Benjamin Blase Caryl, 2014 Court of International Trade Reviews of Post-Sale Price Adjustments, Targeted Dumping, and Zoning in Antidumping Duty Cases
By summarizing important 2014 U.S. Court of International Trade reviews of the U.S. Department of Commerce’s analysis and calculation of two types of pricing practices—post-sale price adjustments and targeted dumping—this Article provides some useful lessons for industries involved or potentially involved in U.S. antidumping duty proceedings, as well as guidance for practitioners on the developments and evolution of the Department’s practices related to zeroing, targeted dumping, and post-sale price adjustments.
Andrea C. Casson and Karl S. von Schriltz, A Review of the Court of International Trade's 2014 Decisions Addressing Trade Remedy Determinations of the U.S. International Trade Commission
In 2014, the U.S. Court of International Trade issued six opinions discussing the substance of antidumping and countervailing duty determinations issued by the U.S. International Trade Commission. All six of these involved decisions in original investigations. In five of these cases, the court affirmed the Commission on all challenged issues, and in one case, the court affirmed on a number of issues but remanded with respect to certain issues. These decisions typify the court’s application of the applicable standards of review over agency determinations. The court also issued three decisions addressing procedural or jurisdictional issues related to appeals of Commission determinations. In each of these, the court looked to its role in the context of the statutory scheme. This article discusses the six decisions addressing the merits of the Commission’s determinations and the three decisions concerning procedural or jurisdictional matters.
Michael T. Cone, Three Different Standards of Review in CIT Jurisprudence: Hard Results, Practice Points, and Lessons Learned
The United States Court of International Trade (CIT) is an Article III court of limited but exclusive jurisdiction encompassing disparate areas of law united by the fabric of international commerce. Frequently the court provides a “second bite at the apple” for plaintiffs who have been unable to convince an underlying federal agency or tribunal that their harms deserve governmental redress. In such circumstances the court’s authority to exercise independent legal judgment depends on the procedural posture of the case as well as the identity of the lower agency or tribunal. The three cases discussed in this article exemplify these crucial dimensions of CIT jurisprudence and offer takeaways for effective advocacy before the court.
Jeffrey S. Grimson and Daniel R. Wilson, 2014 in Review: Scope and Procedural Matters Before the Court of International Trade
This Article summarizes 2014 U.S. Court of International Trade (“CIT”) cases addressing questions of whether imported products fall within the scope of antidumping/countervailing duty orders, the process of obtaining a court order enjoining U.S. Customs and Border Protection from liquidating imports during the pendency of appeals before the CIT and U.S. Court of Appeals for the Federal Circuit, and the CIT’s decisions disfavoring motions to strike during the normal briefing process. An examination of the court’s opinions addressing scope matters reveals that the government’s litigation strategy in these cases often consists of repeatedly failing to comply with the court’s remand instructions, resulting in multiple rounds of unnecessary remands and redeterminations where the court finds that the agency’s initial determination was unlawful. An examination of the court’s opinions addressing procedural matters exposes the fact that litigants often require the court to address unneeded objections to routine procedural motions to maintain the status quo as well as the CIT’s jurisdiction, and ill-advised motions to strike that create obstacles to efficient resolution of appeals. These three topics taken together expose unnecessary strain upon the CIT’s orderly appeal process as a result of unsound litigation strategy that goes against the spirit, if not the letter, of the court’s rules and remand instructions.
Alexander V. Sverdlov, Change is Coming: What to Expect from the Recent Amendments to the Trade Remedy Laws
President Obama recently signed a bill that amends several sections of U.S. domestic trade remedy laws. This Article examines the nature and significance of these amendments through the lens of the Court of International Trade’s 2014 case law—the last full year in which the prior statute was in effect. As discussed below, the amendments are a significant departure from existing rules in a few key areas. These new standards are likely to be a source of contentious litigation in the years ahead.
Jeffrey M. Telep and Elizabeth E. Owerbach, The Court of International Trade's Application of 28 U.S.C. § 1581(I) Jurisdiction in 2014
In 2014, the United States Court of International Trade continued to selectively allow cases to proceed under its subsection 1581(i) residual jurisdiction. In cases involving jurisdictional disputes, the Court conveyed a strong preference for plaintiffs to litigate challenges against U.S. Customs and Border Protection via the traditional subsection 1581(a) route, but extended residual jurisdiction where it had rejected jurisdiction under subsection 1581(h), and allowed for a challenge against the International Trade Commission and the U.S. Department of Commerce to proceed under subsection 1581(i). In cases not involving jurisdictional challenges, the Court set a high bar for granting preliminary relief, and continued to deny challenges brought under the Continued Dumping and Subsidy Offset Act.
Alexander Vanderweide, A Review of the Court of International Trade's 2014 Jurisprudence Arising Under 28 U.S.C.§1581(A)
This Article surveys six decisions issued by the Court of International Trade in 2014. The decisions highlight the court’s refusal to expand its jurisdiction under 28 U.S.C. §1581(a) to include untimely protests, suits, and seized merchandise. The court’s decisions on the merits routinely employed the Explanatory Notes to guide its analysis in ascertaining the proper classification of imported merchandise.
Matthew J. Greer, Redefining Perfidy
Perhaps all war is based on deception, but throughout history, the law of war has limited the use of certain deceptive tactics. Developed long ago with a focus on honor among belligerents, the law of war’s prohibition of perfidy has failed to adapt to modern warfare. Moreover, its lack of focus on external actors, i.e., non-combatants, allows deceptive action even where it plainly contravenes the fundamental principles of the law of war. This Note redefines perfidy using the core aims of the law of war: distinction, proportionality, and military necessity. The hope is that an updated perfidy definition will provide greater guidance to battlefield operators, lessen war’s death and destruction, and ultimately help bring about swift and peaceful ends to armed conflicts.
Lindsay H. Kennedy, Homeward Bound: The European Union's Freedom of Movement in an Age of Transnational Terrorism
Europe faces a complex problem with foreign fighters returning after traveling to fight in Syria and Iraq. The number of foreign fighters traveling to fight in Syria and Iraq is unprecedented and cause for great concern, especially for interior EU member states whose security is dependent on the border security of the peripheral EU countries. This dependent relationship, and the vulnerabilities it exposes, has shaped the broader question of what the EU, and its member states, can lawfully do to achieve greater security in the age of transnational terrorism. Considering this complex and highly political issue, this Note suggests steps the EU and its member states can take to ensure greater security from the foreign fighter threat. This Note presents policy suggestions the EU may implement to address the foreign fighter threat and security in this age of transnational terrorism, while maintaining its integrity and value of human rights and civil liberties. These solutions include greater information sharing between member states, legislation targeted at terror-related activity, and increased de-radicalization programs within vulnerable communities.
Michael J. Palermo, Kicking a Habit of Impunity: A Call to Prosecute in the ICC Persons Who Finance Terrorism Through the Drug Trade
Despite recent efforts to combat sources of terrorist financing, the drug trade continues to provide terrorist organizations with the means to finance their operations. International legal instruments currently in force, including the United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances and the International Convention for the Suppression of the Financing of Terrorism, have fallen short in their attempts to curb drug trafficking and terrorist financing. These shortcomings can be attributed in large part to the unwillingness and inability of state authorities to prosecute domestically alleged drug traffickers and terrorist financiers. In light of the problems associated with prosecutions at the domestic level, as well as the seriousness of financing terrorism through the drug trade, prosecutorial solutions should be sought within international institutions. Because the International Criminal Court has jurisdiction over the most serious crimes concerning the international community and can effectively leverage the power of complementarity, persons who provide to terrorists funds raised through the drug trade should be prosecuted in the ICC.