Trade Law

With the enactment of the U.S. Inflation Reduction Act (IRA) and the announcement of the European Union (EU) Green Deal Industrial Plan, there is now a full-fledged subsidy war between the United States and the European Union. While these subsidies are meant to encourage green technologies, incentivizing firms to produce locally would seem to be an almost as important policy goal. And it is not limited to the U.S. and the EU. Global Trade Alert recently reported that, in 2022, production subsidies accounted for half of all trade-distorting measures, making it the mostly commonly used harmful trade policy measure.¹

On December 21, 2022, the appeal arbitrators in the Colombia – Frozen Fries (DS591) World Trade Organization (WTO) dispute circulated their award (the “Award”). This was the second appeal conducted under Article 25 of the WTO’s Dispute Settlement Understanding (DSU) and the first appeal under the Multi-Party Interim Appeal Arbitration Arrangement (MPIA), a framework created by a group of WTO members to overcome the challenges posed by the non-operational Appellate Body.

International trade litigation requires patience. These disputes often span several years and involve multiple redeterminations by the agency whose action is subject to judicial review. The appeal can get even further complicated when the original proceeding becomes entangled with one or more subsequent administrative proceedings. And even if a party prevails on appeal, a victory may become hollow unless the appropriate agencies implement the redetermination in a timely fashion.

A new year brings new decisions. In the first opinion issued in 2019 by the U.S. Court of International Trade (CIT), Judge Choe-Groves addresses the application of a hot-button issue—the U.S. Department of Commerce’s recently expanded “particular market situation” authority—through a combination of procedure and record review.

Invoking statutory authority not used in almost two decades, President Trump on April 20, 2017, directed the U.S. Department of Commerce (DOC) to conduct an investigation into the effects of steel imports on U.S. national security. Citing the more than 150 antidumping and countervailing orders currently in place on steel products imported from various countries, the Presidential Memorandum announcing the investigation claims that U.S. steel producers continue to be harmed by continued unfair trade practices, such as subsidies provided by foreign governments and excess production capacity in producing countries. These systemic trade abuses, according to the Presidential Memorandum, jeopardize long-term investment in the U.S. industry and weaken the pool of qualified workers for this strategic industry.

President Trump signed two EOs addressing trade on Friday, March 31: one addressing trade and customs enforcement, including the collection of antidumping and countervailing duties (AD/CVD), and a second requesting an omnibus report on significant trade deficits. While the EOs represent another of the administration’s major forays into trade, they set the table for increased enforcement of U.S. trade laws and scrutiny of U.S. trading partners.

On December 17, 2014, the U.S. Department of Commerce (DOC) announced its final determinations in the antidumping duty (AD) and countervailing duty (CVD) investigations of crystalline silicon photovoltaic products (“solar products”) from China and Taiwan (AD only). DOC’s final determinations are the latest in a series of trade remedy actions taken by the United States, the European Union and Canada since 2012 against Chinese exports of solar products. The current “Solar II” investigations follow AD and CVD orders imposed by DOC in 2012 following the “Solar I” investigations.

In its final determinations, DOC found AD margins ranging from 26.71 to 165.04 percent and CVD rates ranging from 27.64 to 49.79 percent for Chinese companies, and AD margins ranging from 11.45 to 27.55 percent for Taiwanese companies. The final determinations will be enforced by U.S. Customs and Border Protection (CBP) through the collection of cash deposits in the applicable amounts from U.S. importers of record. The AD cash deposit requirements will become effective on the date of publication of DOC’s final determinations in the Federal Register, expected on December 23, 2014. CVD cash deposits will become effective on the date of publication in the Federal Register of any final affirmative determination by the U.S. International Trade Commission (ITC), expected in early February 2015.