11th Annual Dominick L. DiCarlo U.S. Court of International Trade Lecture

Wednesday 12 December, 2012

The John Marshall Law School Center for International Law hosted the 11th Annual Dominick L. DiCarlo U.S. Court of International Trade (CIT) Lecture, A Conversation with Judge Jane A. Restani of the U.S. Court of International Trade (NY) . Judge Restani was appointed to the court by Ronald Reagan in 1983.  Rather than hold a lecture with Q&A @ the end, the organizers opted for a more conversational format where moderator Lawrence M. Friedman, Partner, Barnes Richardson and Colburn (Chicago), simply posed questions to Judge Restani on current topics facing the court, such as anti-dumping laws, countervailing duties, etc.

The hard part about anti-dumping laws is to compare foreign & domestic market prices because many adjustments have to be made.  The US Dept of Commerce wants to calculate an average price & compare it to specific transaction prices.  Transaction prices below the average would be considered dumping, but this case lost @ the World Trade Organization (WTO).  They then compared domestic average prices to foreign average prices,-this investigation in methodology is now under review.  Statutes don’t specify the math.  There is no right methodology-the court of appeals must simply choose.  The agency made a mess by not complying with the WTO & the court of appeals hasn’t helped.  The WTO has no binding affect on these proceedings.  The US can flaunt that, but is subject to retaliation.  The US Trade Representative must make a change, but there is little discussion with the WTO.  How cases are analyzed doesn’t help.  The civil law approach says they should seek 1 meaning.  Some words are interpreted nebulously.  There is an international block which is loathe to fight the WTO.  But the US can’t be bound by the WTO.  In a countervailing duty case vs. China, the WTO borrowed from the CIT.

There are many trade cases with many interested parties, but the best issues to raise with the CIT depends on the rates being charged.  The CIT will not say “You can’t raise an issue.”  It’s important to understand the losers & the standard of review.  The court must weigh a lot of lousy data, so throw away issues you can’t win.  Enough time should be allocated to give the facts, use the record appendix method, & explain the appendices.  Many in customs waste time with facts that don’t matter, but customs cases are all about the law.  There is a classification issue, for example, old cars don’t fit in the harmonized system.  The water bottles carried in a backpack called a “Camelback” could be considered luggage, which is taxed with a high tariff, or as a water bottle, which is taxed with a low tariff.  Some cases from the pre-NAFTA era are still waiting for $ settlements, but you must win now to win in the future.

Most who work with the CIT are bar-educated, so there are only a few bad lawyers who present before this court, as opposed to other circuit courts which are all over the lot.  There are only 400 customs lawyers & only 150 of those practice before the CIT.  Their quality is good & their behavior is good.  There are no breaths of fresh air-you must know the techniques & customs of the CIT.

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