International Trade - Trade Remedies:
Antidumping / Countervailing Duties & Safeguards
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CROWELL & MORING US CAPABILITIES
Crowell & Moring's trade attorneys advise US and foreign companies on the operation of US trade relief laws. We represent clients in proceedings before the US International Trade Commission, the US Department of Commerce's International Trade Administration, and the USTR and Trade Policy Staff Committee. The firm's International Trade group advises clients on all aspects of U.S. trade remedies cases, including:
- Proceedings arising under US antidumping laws (concerning imported goods sold at "less than fair-value")
- Proceedings arising under countervailing duty laws (concerning sales of imported goods that benefit from unlawful government subsidies or other trade benefits)
- Proceedings under Section 337, Section 201 (escape clause), and section 301
- Evaluation and presentation of material injury and threat of material injury issues before the International Trade Commission
- Calculation and legal analysis of dumping calculation methodology in both market economy and non-market economy cases
- Scope, like product, and circumvention
- Policy issues presented in safeguard and other proceedings
Governing Law
Antidumping Duty Investigations
Dumping targets international profit discrimination by seeking to force foreign sellers to earn the same profit, or return, on export sales as on domestic sales.
In the United States, the Tariff Act of 1930 stipulates that U.S. industries may petition the government for relief from imports sold in the United States at less than fair value ("dumped"). Section 731 of this Act then provides that an anti dumping duty shall be imposed, in addition to any other duty, if two conditions are met:
- The U.S. Department of Commerce determines that "a class or kind of foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value," based on a comparison of "normal value" ( i.e., the home market or third country export prices) with the "export price" ( i.e., the U.S. price), each adjusted to an ex-factory basis.
- The U.S. International Trade Commission determines that "an industry in the United States is materially injured, or is threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of that merchandise."
If you have both a finding of dumping and injury, then a U.S. industry will get a remedy via the addition of an extra duty - an antidumping duty - applied at the border to imports of applicable products. An antidumping duty does not stop the importation of the products into the United States; it ensures that the products are sold at fair value.
Countervailing Duty Investigations
The unfair act associated with countervailing duty investigations involves subsidies bestowed by a government or public entity. Such subsidies are deemed unfair, and hence subject to a possible countervailable duty, if the subsidy in question is provided, in law or in fact, to a specific enterprise or industry, or group of enterprises or industries. Examples of subsidies considered "specific," and hence countervailable, include export subsidies and import substitution subsidies. Merchandise imported from a Subsidies Agreement country is entitled to a material injury test, and a countervailing duty investigation in this instance proceeds much like an antidumping duty investigation. Merchandise imported from other countries is not entitled to a material injury test.
US Representative Matters
Crowell & Moring's Trade Remedies lawyers have assisted clients with a wide range of product areas, including:
- Antrifriction Bearings, Antimony Trioxide, Brass Sheet and Strip, Calcium Hypochlorite, Pipe Fittings, Non-Alloy Steel Pipe, Personal Word Processors, Preserved Mushrooms, Cold-Rolled Stainless Steel Sheet, Color Television Picture Tubes, Cyanuric Acid and its Chlorinated Derivatives, Dynamic Random Access Memories, Fresh Tomatoes, Grain-Oriented Electrical Steel, Groundwood Paper, High-Information Content Flat Panel Displays and Subassemblies, Internal Combustion Forklift Trucks, Iron Construction Castings, Minivans, Nitrocellulose, Oil Country Tubular Goods, Paper Clips, Pencils, Polyethylene Terephthlate ("PET") Film, Sheet and Strip, Polytetraflourethyelene, Portable Electric Typewriters, Power Tools, Silicon Carbide, Silicon Metals, Spring Table Grapes, Steel Wire Rod, Steel Wire Rope, Tapered Roller Bearings, Tart Cherry Juice and Cherry Juice Concentrate, Telephone Systems and Subassemblies, Tetrahydrofurfuryl Alcohol, 3.5" Microdisks and Magnetic Media, Titanium Sponge, Turbo-Compressors, Uranium, Softwood Lumber, Cellular Mobile Telephones, Corrosion-Resistant Flat Products, Small Diameter Pipe and Tube, Castings, Semiconductors, Telecommunications, and Tungsten.
Court of International Trade Experience - Please see our section on Trade Litigation.
Safeguard Actions
Crowell & Moring's Safeguard Actions lawyers advise companies on NAFTA and the Trade Act of 1974. We also represent clients in market disruption investigations conducted by the U.S. International Trade Commission.
Governing Laws
- Section 201 of the Trade Act of 1974 involves global safeguard investigations.
- Section 302 of the NAFTA Implementation Act concentrates on imports from a NAFTA country.
- Section 406 of the Trade Act of 1974 involves investigations conducted by the U.S. International Trade Commission on whether imports of an article produced in a Communist country are causing market disruption vis-à-vis articles produced in the United States. Market disruption exists when imports increase so rapidly that they become a significant cause of material injury, or threat of material injury, to a domestic industry of similar goods. These investigations are similar to section 201 investigations.
CROWELL & MORING EU CAPABILITIES
Chinese Translation
Guiding our clients through the complexities of the EU's anti-dumping and anti-subsidy laws is a speciality of our European trade practice. Currently, we are involved in around half of the anti-dumping cases initiated by the European Commission over the last two years. We represent the whole range of interested parties in EU trade remedy procedures including complaining EU industries, non-European exporters, EU importers as well as end-users of merchandise or goods.
In some cases, all that is required is specific expert advice on the technical issues involved in anti-dumping or anti-subsidy investigations. In others, we have formulated and put into operation comprehensive strategic plans and effective lobbying strategies to advocate our clients' positions. An overview of the services we provide includes the following:
- Preparing and filing EU anti-dumping complaints against foreign merchandise and actively engaging the key decision-makers to ensure the best results
- Representing non-European exporters in sample inclusion requests, the filing of questionnaire responses, on-the-spot verification processes and dumping margin calculations
- For exporters in non-market-economy countries, drafting and filing market Economy Status (MES) submissions to prove the existence of market economy conditions and to ensure fair treatment in anti-dumping procedures
- Formulating submissions based on economic analysis to show or disprove injury and causation aspects in EU anti-dumping investigations
- Developing and implementing lobbying strategies to influence key decision-makers in the EU's anti-dumping and anti-dumping procedures
- Drafting and filing submissions to demonstrate where the overall interests of the EU lie in anti-dumping and/or anti-subsidy procedures
- Making requests for refunds of duties through the EU's anti-dumping refund procedure and following through on the subsequent procedures
Our attorneys regularly represent our clients in formal hearings before the European Commission and are equally experienced in making written and oral representations, not only at EU institutional level, but also before the key EU Member State national authorities.
In carrying out these functions, many of our trade attorneys benefit from the experience of having worked inside DG-External Trade of the European Commission and/or the European Courts. Added to this experience is the multiple language capabilities offered by our European attorneys and paralegals who have the following language skills: English, French, German, Dutch, Swedish, Spanish and Chinese. These skills are now an essential component of an effective service in the field of EU trade law.
Governing Law
In compliance with the international rules formulated by the WTO to regulate anti-dumping investigations, the EU has its own Basic Anti-Dumping Regulation to govern proper procedures and the rights of interested parties in such investigations. This is Council Regulation (E) 384/96 which has been amended on a number of occasions.
Unlike many other countries, the EU applies four (not three) criteria before applying anti-dumping duties, namely: (a) proof of dumping; (b) the establishment of injury to an EU industry; (c) an economically verifiable link between the dumped goods and the injury sustained by the EU industry; and (d) an evaluation of whether proposed anti-dumping measures are economically and commercially in the interests of the EU as a whole. This fourth test, the evaluation of the EU's interests as a whole, is becoming increasingly important and has been recently used by the EU as a reason to stop anti-dumping investigations without the adoption of definitive measures.
A different EU law applies to the regulation of anti-subsidy (or countervailing duty) investigations, namely Council Regulation (EC) 2026/97. The basic elements are the same as for dumping investigations except that the existence of actionable subsidies is required instead of dumping.
EU Representative Matters
Our European lawyers have been involved in anti-dumping and anti-subsidy cases involving a wide range of product areas including: Leather and Plastic Handbags from China and Hong Kong; Soda Ash from the United States; Briefcases and Luggage from China; CD-Rs from India; Ethanol from Pakistan and Guatemala; Bed Linen from Pakistan; Safety Shoes from China; Leather Shoes from China and Vietnam; Plastic Bags and Sacks from China and Malaysia; Retail Electronic Weighing Scales from Taiwan and China; Fresh Salmon from Norway; Steel Products from Russia; Ironing Boards from China; and Persulphates from China.
Many of these representations have been high-profile ones and, in some instances, have involved litigation in the European Court of First Instance and/or the courts of the EU member states.
Attorneys from our EU trade practice have also achieved the following results for our clients without having to resort to litigation:
- Successful recovery of more than Euros 2 million for German and British companies by using the EU anti-dumping refund procedure
- Termination of EU anti-dumping investigations by demonstrating the absence of one or more of the criteria required for the imposition of anti-dumping duties
- Expedited anti-dumping reviews in a number of cases where uncertainties could be established regarding the reliability of the information on which the original anti-dumping calculations or circumstances were based
European Trade Law Litigation Experience
Attorneys from our European trade practice have litigated, or are in the course of litigating, the following cases before the European Court of First Instance:
- Case T-7/99: Medici Grimm KG v Council of the European Union (Action for annulment of anti-dumping duties)
Case C-254/02: Fast Forward Resources v HM Customs & Excise (Reference to the ECJ from UK VAT and Customs Tribunal and European Court of Justice)
- Case T-300/04: Moser Baer India (MBI) v Council of the European Union ( Action for annulment of anti-subsidy duties)
- Case T-364/04: Medici Grimm KG v Council of the European Union (Action for damages for unlawful imposition of anti-dumping duties)
- Case T-299/05: Shanghai Excell Precision Limited v Council of the European Union (Action for annulment of anti-dumping duties)
For more information on Crowell & Moring's Trade Remedies capabilities, please contact traderemedies@crowell.com.