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37th Anniversary Georgetown International Trade Update
FEBRUARY 25-26
Georgetown University Law Center
Hart Auditorium
600 New Jersey Avenue, NW
Washington, DC 20001
The International Trade Update
will give you practical, topical, and timely information that you can use back at your desk - whether you are a private practitioner, government attorney, or in-house counsel. The Update's agenda is coming soon.
USTR Lead Negotiator and Experts Discuss the Trade Services Agreement (TiSA) Negotiations
DECEMBER 9, 2015
12:30-2:00pm
Crowell & Moring
1001 Pennsylvania Avenue, NW
Washington, DC 20004
The Trade in Services Agreement (TiSA) is an international agreement currently being negotiated by countries representing 75 percent of global trade in services to liberalize trade in services, including finance, investment, insurance, legal services, and other emerging issues such as restrictions on cross-border data flows that can disrupt financial and e-commerce services. The negotiating countries recently agreed to hold four more rounds of negotiations in an effort to conclude the agreement by July 2016. Come hear two leading experts on TiSA and the lead U.S. negotiator on TiSA, fresh from the November/ December negotiating round focused on financial services in Geneva, discuss and answer questions on the major outstanding issues.
This "Off the Record" luncheon program is sponsored by the International Investment and Finance Committee of the D.C. Bar International Law Section. Cosponsored by the International Securities Law Committee of the Corporation, Finance and Securities Section, the International Dispute Resolution Committee of the International Law Section, the International Trade Committee of the International Law Section, International Trade Committee of the American Bar Association Section of International Law and the International Practice Section of the Virginia State Bar.
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Breakfast Briefing - What the Iran Nuclear Deal Means for the Lifting of U.S. Sanctions
DECEMBER 3, 2015
8:30-9:30am
Baker & Hostetler LLP
Washington Square 12th Floor
1050 Connecticut Avenue, N.W.
Washington, DC 20036
CITBA - in cooperation with the D.C. Bar International Law Section, the ABA Section of International Law's International Trade and Export Controls and Economic Sanctions Committees, and the Iranian American Bar Association - held a breakfast briefing with Sarah Liebschutz, Attorney Advisor Office of the Chief Counsel (Foreign Assets Control) U.S. Department of the Treasury, to discuss the recent Iran nuclear deal and its potential impact on US sanctions.
Everything You Always Wanted to Know About Doing Business with CBP R&R But Were Too Afraid to Ask and CITBA Semi-Annual Meeting
NOVEMBER 18, 2015
5:00pm-6:30pm
Thompson Coburn LLP
1909 K Street NW, Suite 600
Washington, DC 20006
Discussion with government officials from CBP's Office of Regulations & Rulings (R&R) and members of the Trade Bar regarding best practices in communicating and working with R&R on behalf of clients. A reception and CITBA's annual meeting followed the event.
Formal Presentation of the Portrait of Senior Judge Donald C. Pogue
NOVEMBER 3, 2015
2:30pm
U.S. Court of International Trade
One Federal Plaza, New York, NY
The event featured a Special Session of the United States Court of International Trade for the formal presentation in its ceremonial courtroom of the portrait of Senior Judge Donald C. Pogue.
CITBA Young Lawyers Committee: Trade Law and Politics
SEPTEMBER 25, 2015
12pm - 1:30pm
Hughes Hubbard & Reed LLP
1775 I Street NW
Washington, DC 20006
Discussion with Viji Rangaswami and John Smirnow on varied careers in trade - ranging from trade politics to in-house trade law and any other trade-related topic you are interested in discussing!
Viji Rangaswami
- Vice President of Federal Affairs at Liberty Mutual; former Chief Trade Counsel and Staff Director, Trade Subcommittee of the Committee on Ways & Means, former Associate in the Trade, Equity, and Development Project at the Carnegie Endowment.
John Smirnow
- Principal of Smirnow Law; Member, Trade & Environment Policy Advisory Committee for USTR; former Vice President of Trade & Competitiveness for Solar Energy Industries Association; former Chairman, Renewable Energy & Energy Efficiency Advisory Committee, U.S. Department of Commerce.
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NEWS FROM THE CLERK OF THE COURT OF INTERNATIONAL TRADE
By Rebecca Demb, Stephen Swindell & Scott Warner*
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Mark Your Reserve Calendars!
For all of you out there that have had cases on the reserve calendar for an extended period of time, here's a little something you might want to keep in mind...
To help get the ball rolling on longstanding cases before the court, over four hundred 1581(a) cases that had been on the reserve calendar for more than five years were assigned to the Honorable Judge Thomas J. Aquilino on October 7th. Within two weeks, parties were appearing in court to provide updates on the status of those cases and discussing the best means to move them towards disposition. Since their assignment, fifty one of those cases have been either voluntarily dismissed or stipulated for judgment on an agreed statement of facts. Another forty five of those cases have since been suspended under test cases. Just sayin'!
Late model 1581(c) Cases Now Offer Automatic Transmission!
With the help of the Department of Commerce and the International Trade Commission, the Court has taken another step forward in utilizing technology to provide better services to the bar. In the past, the Office of Clerk fulfilled its Rule 4(a)(4) service requirements by mailing a hard copy of 1581(c) summonses to the appropriate government agencies involved in the case. Now with a modification to CM/ECF, the filer is asked to select which agency determination is being contested and the system transmits the summons via Notice of Electronic Filing to a dedicated agency email address. Thanks to the efforts of these agencies and the CM/ECF wizards at the Court, these summonses are now transmitted faster and more reliably. Go team go!
Doctor HTSUS and the Category in the Hat
Ever have to file a 1581(a) classification case? Ever have to enter those pesky little assessed and claimed HTSUS numbers into the CM/ECF case opening sequence? Ever turn your eyes to the ceiling when the system doesn't accept your particular set of numbers or symbols? No longer, we say! Thanks again to the technically gifted dynamos here at the Court, we have removed the 'round pegs in round holes only' format requirements for these fields. So bring on your numbers, bring on your symbols, it's all good!
Rebecca Demb is a Case Manager, Stephen Swindell is the Supervisor and Scott Warner is the Operations Manager for Case Management at the Court of International Trade.
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Federal Circuit and CIT Case Summaries
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By Claudia Burke*
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* Claudia Burke is an attorney with the Department of Justice, Civil Division, National Courts Section. These summaries are not a document of the U.S. Department of Justice, nor does it represent the official views of the Department of Justice.
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Byrd Amendment
Federal Circuit Denies Petition for En Banc Rehearing in Appeal Challenging Retroactive Application of the CDSOA's "Support Requirement."
Schaeffler Group USA, Inc. v. United States.
On October 30, 2015, in a precedential per curiam decision, the Court of Appeals for the Federal Circuit denied the petition for en banc rehearing filed by Schaeffler Group USA, Inc., a domestic producer that alleged that the government unconstitutionally denied its claims for a share of antidumping duties annually distributed by the government pursuant to the Continued Dumping and Subsidy Offset Act of 2000 (CDSOA). The Court of International Trade had dismissed Schaeffler's complaint, holding that Schaeffler did not qualify for distributions because it did not allege that in the 1980s it had indicated support of the relevant antidumping petition that had resulted in the CDSOA distributions at issue. Largely relying upon SKF USA, Inc. v. U.S. Customs and Border Protection, 556 F.3d 1337 (Fed. Cir. 2009), the Federal Circuit affirmed, rejecting Schaeffler's argument that it was unconstitutional for it to be rendered ineligible for CDSOA distributions based upon its conduct prior to the enactment of that statute. In its petition, Schaeffler urged the en banc Court to overrule SKF as inconsistent with Supreme Court precedent. Judge Wallach dissented from the Court's denial of the en banc petition, agreeing with Schaeffler that SKF should be overruled.
Customs
Court of International Trade Issues Decision On Deemed Liquidation.
American Power Pull Corp. v. United States, Court No. 14-00088 [Barnett, J.]. On November 16, 2015, the Court of International Trade held that plaintiff's entries did not liquidate by operation of law when the liquidations were properly suspended from the time of entry until the completion of the judicial review, first by statute and then by court order pursuant to a preliminary injunction. The merchandise imported by plaintiff was the subject of a periodic review of an antidumping duty order. Plaintiff argued, in part, that there was no valid basis for suspending liquidation. The Court disagreed outlining the statutory framework for suspension of liquidation under the antidumping duty laws. As held by the Court, "[i]t has long been recognized that the necessary implication of reading section 1673e(a) together with section 1675, in pari materia, is that the suspension of liquidation of an entry must remain in effect throughout an administrative review by Commerce."
Court of International Trade Enters Default Judgment for $2.6 Million Penalty for Customs Fraud Involving Importation of Adulterated Food.
United States v. Pacheco [Tsoucalas, S.J.]. On September 28, 2015, the Court International Trade granted the United States' motion for default judgment, holding that Jeannette Pacheco committed fraud in the entry of adulterated food. Ms. Pacheco had allowed a customs broker to use her identity as importer of record and had imported entries of dried peppers from Mexico that were unfit for human consumption due to high pesticide levels.
Although the peppers entered free of duty, the customs entry documents undervalued the merchandise by more than 90 percent so that the importer could enter the peppers with a low bond securing redelivery of the peppers should they fail Food and Drug Administration (FDA) testing. The importer then distributed the peppers for consumption after importation and did not respond to any FDA requests that the peppers be destroyed due to unsafe pesticide levels. The Court held that this scheme constituted a non-revenue loss violation of the customs fraud statute due to material misrepresentations regarding admissibility and imposed the maximum allowable penalty for fraud.
Court of International Trade Sustains Customs Classification Of Imported Door Parts.
Composite Technologies, Inc. v. United States [Tsoucalas, S.J.]. On September 28, 2015, the Court International Trade granted the United States' motion for summary judgment, holding that certain door parts imported from China were correctly classified by CBP as "other articles of wood" at a 3.3 percent rate of duty as opposed to veneered wood that is entered duty free. The Court agreed that the door parts could not be classified as "veneered" wood because the outer layer exceeded the thickness of a "veneer" as defined in the Harmonized Tariff Schedule of the United States.
Court of International Trade Grants Government's Motion for Summary Judgment on Classification of L-Carnitine Based Products.
Sigma-Tau HealthScience, Inc. v. United States [Carman, J]. On September 3, 2015, the Court of International Trade granted the government's cross-motion for summary judgment, and denied Sigma-Tau's motion for summary judgment. The Court held, pursuant to a GRI 3(a) analysis, that two of Sigma-Tau's L-carnitine based products are properly classified in HTSUS heading 2923 as quaternary ammonium salts, as opposed to heading 2936, Sigma-Tau's preferred tariff heading, which provides for vitamins. Sigma-Tau has appealed the Court's
AD/CVD
Federal Circuit Affirms Commerce's Application of Substantial Antidumping Duties to Chinese Shrimp Importers Accused of Concealing Fraudulent Scheme.
Ad Hoc Shrimp Trade Action Comm. v. United States [Reyna, Wallach, J.J., Clevenger, S.J.] On October 5, 2015, the Court of Appeals for the Federal Circuit affirmed the Department of Commerce's imposition of a 112 percent duty rate on Chinese shrimp importers who Commerce found had concealed the existence of a Cambodian affiliate. The Court upheld Commerce's determination that the companies' misrepresentations created credibility issues that pervaded their submissions in successive administrative proceedings. The Court rejected the importers' arguments that Commerce should not have applied an adverse rate because the Cambodian affiliate was not involved in either the production or sale of shrimp during the proceedings at issue, and because the 112 percent rate allegedly stemmed from old, uncorroborated data. The Court also held that certain provisions of the Trade Preferences Extension Act of 2015, which enhance Commerce's flexibility in assigning adverse rates to uncooperative parties do not apply retroactively.
Federal Circuit Affirms Commerce's Antidumping Review of Activated Carbon Imported from China.
Jacobi Carbons AB, et al. v. United States [Moore, Chen, JJ.; Bryson, J., dissenting]. On August 3, 2015, the Court of Appeals for the Federal Circuit affirmed the Court of International Trade's judgment sustaining Commerce's final results in the fourth annual administrative review of the antidumping duty order covering certain activated carbon from China. Producers, exporters, and importers of Chinese activated carbon challenged Commerce's selection of surrogate values for certain inputs used to produce activated carbon, contending that Commerce's selection of Philippine import data was not supported by substantial evidence. The Federal Circuit held that Commerce's choice of surrogate values was in accordance with law and supported by substantial evidence. Furthermore, in a departure from the trial court's decision, the Federal Circuit agreed with the government's position that appellants had waived certain arguments by failing to raise them before Commerce in the first instance.
Court of International Trade Remands Department of Commerce's Determination in Antidumping Investigation of Glycine Imported from China.
Baoding Mantong Fine Chemistry Co. v. United States [Stanceu, C.J.]. On November 3, 2015, the Court of International Trade remanded Commerce's final results in an administrative review of the antidumping duty order on glycine from China. Among other challenges, plaintiff, a producer and exporter of Chinese glycine, challenged Commerce's determination to assign it a 453.79 percent dumping margin on the ground that such a margin defied commercial and economic reality. The government contended that, because calculation of the margin was in accordance with the governing law and supported by substantial evidence, Commerce was not required to devote any additional scrutiny to the resulting dumping rate. The Court agreed with plaintiff, holding that Commerce's calculation was not realistic in any commercial or economic sense and was punitive regardless of Commerce's intent because the administrative record lacked any evidence to support a finding that a 453.79 percent margin had any relationship to plaintiff's commercial reality in view of the record evidence of its profitability.
Court of International Trade Rejects Commerce Interpretation of its Rescission Regulation.
Glycine & More, Inc. v. United States [Stanceu, C.J.]. On November 3, 2015, the Court of International Trade held that Commerce had misapplied its regulation governing when it would allow a party to withdraw a request for an antidumping duty administrative review. In this matter, a Chinese exporter of glycine sought to withdraw its request for administrative review after the 90-day regulatory deadline for voluntary withdrawal. Under the regulation, Commerce will grant all withdrawal requests within 90 days of initiation but, if the request is later than that deadline, Commerce will rescind only if it is "reasonable" to do so. Commerce later provided administrative guidance that it would only find untimely requests "reasonable" under "extraordinary circumstances." The Court found that the administrative guidance interpreting "reasonable" to mean "extraordinary circumstances" was contrary to the plain language of the regulation and, thus, remanded the matter to the agency to make a new determination notwithstanding its administrative guidance.
Court of International Trade Remands Commerce's Antidumping Suspension Agreement with Mexican Tomato Producers for Failure to Comply with Statutorily Mandated Notice Requirement.
The Florida Tomato Exchange v. United States, et al. (Ct. Int'l Trade) [Eaton, J.]. On September 24, 2015, the Court of International Trade granted in part the motion for judgment on the agency record filed by The Florida Tomato Exchange, a domestic trade organization that contested Commerce's decision to enter into an agreement with Mexican tomato producers to suspend an antidumping investigation pursuant to 19 U.S.C. § 1673c(c). Prior to entering into a suspension agreement, Commerce must provide a detailed notice to the parties to the investigation that includes the proposed suspension agreement and an explanation of how the suspension agreement satisfies the statutory requirements. While Commerce provided notice to interested parties, it did not provide the parties with an explanation of how the agreement satisfied the statutory requirements. Therefore, the Court remanded the matter to Commerce for further proceedings.
Court of International Trade Sustains Final Determination in Investigation of Turkish OCTG.
In Maverick Tube Corp. v. United States, Court No. 14-00244 [Restani, J.]. On September 24, 2015, the Court of International Trade sustained in part and remanded in part Commerce's final determination in antidumping duty investigation of oil country tubular goods (OCTG) from Turkey. Specifically, the Court sustained Commerce's determinations related to a foreign respondent's home market sales, U.S. sales and alleged affiliations, and the model-match criteria - all determinations challenged by the domestic petitioners. The Court remanded in part Commerce's determinations related to a foreign respondent's duty drawback adjustment and constructed value profit margin.
Court of International Trade Sustains Commerce Determination That German Thermal Paper Maker Did Not Engage In Dumping Following Cessation Of Fraudulent Scheme.
Appvion, Inc. v. United States [Tsoucalas, S.J.] On September 17, 2015, the Court of International Trade sustained a Commerce determination that a German paper manufacturer had not engaged in dumping during the period of Commerce's fourth administrative review of its antidumping duty order covering lightweight thermal paper from Germany. In the previous (third) review, the Court sustained Commerce's application of "adverse facts available," resulting in approximately $100 million in duties, on the basis that the German company had engaged in a fraudulent scheme to conceal a portion of its home market sales by "transshipping" them through third countries. In the fourth review, by contrast, the German company disclosed all of its sales, including some that it had initially transshipped, and Commerce was able to verify that the company had cooperated in the proceeding by reporting its sales accurately. In sustaining Commerce's determination, the Court rejected the domestic industry's claim that Commerce nonetheless should have discarded a large portion of the German manufacturer's sales as "outside the ordinary course of trade" because the prices allegedly were abnormally low, compared to those of the transshipped sales. The Court held that it was reasonable for Commerce to conclude that, although lower, the sale prices were not so low as to be unusable.
Court of International Trade Sustains Countervailing Duty Order Covering Steel Grating from China.
Yantai Xinke Steel Structure Co., Ltd. v. United States (Ct. Int'l Trade) [Eaton, J.]. In 2010, Commerce determined that the Chinese government had subsidized the production of steel grating in China, thereby lowering the cost of production for Chinese producers. In the course of Commerce's investigation, a Chinese producer was not cooperative and provided misleading information regarding the costs of certain inputs used to produce the steel. Therefore, Commerce employed adverse inferences in calculating a 62.46 percent countervailing duty rate. In the meantime, in a separate proceeding Commerce had applied an antidumping duty on the same Chinese steel grating, and the countervailing duty matter was stayed pending a decision from the United States Court of Appeals for the Federal Circuit in
GPX Int'l Tire Corp. v. United States, 780 F.3d 1136 (Fed. Cir. 2015), which held that Commerce may apply both antidumping and countervailing duties concurrently to products from non-market economy countries, such as China. After the stay was lifted, the Court of International Trade sustained Commerce's countervailing duty determination and application of an adverse inference on September 15, 2015.
Court of International Trade Sustains in Part Commerce's Final Results of Antidumping Duty Investigation for Korean Oil Products.
Husteel Co. v. United States [Restani, S.J.]. On September 2, 2015, in a large consolidated case brought by foreign and domestic producers with over 30 discrete issues, the Court of International Trade sustained in part and remanded in part Commerce's final results of its antidumping duty investigation of Korean OCTG, a specialized pipe product used in oil and gas wells. Commerce investigated two companies to determine whether Korean OCTG were being sold in the United States for less than fair value. The Court sustained Commerce's determination not to apply an adverse inference when valuing hot rolled coil using the major input rule as well as when calculating selling, general, administrative, and warranty expenses. To construct a value for profit in its calculations, Commerce used a financial statement from a multi-national OCTG producer submitted by domestic industry late in the investigation, rather than statements reflecting Korean producers' domestic sales of standard pipe. The Court remanded to Commerce to reconsider its acceptance of the untimely statement and its determination that the financial statements reflecting sales of standard pipe did not reasonably reflect profit made on sales of specialized OCTG. The Court also remanded to Commerce to reconsider its selection of only two investigated companies.
Court of International Trade Sustains Commerce's Application of Adverse Dumping Rate to Vietnamese Shrimp Producer.
Viet I-Mei Frozen Foods Co. v. United States [Pogue, S.J.] On July 30, 2015, the Court of International Trade sustained the Commerce's determination to continue its review of a Vietnamese shrimp producer who previously had obtained a Court order requiring Commerce to examine the company as a voluntary respondent in one of its annual administrative reviews. After Commerce agreed to conduct the review, the company changed its mind and attempted to have the review rescinded, while also refusing to cooperate. The Court agreed that, based on the applicable regulations and Commerce's dedication of resources to the proceeding, Commerce was not required to rescind the review and appropriately drew adverse inferences from the Vietnamese producer's failure to cooperate. The Court also specifically rejected an alternative argument that the Vietnamese producer was judicially estopped from seeking rescission of the review.
Surrogate Value for Raw Garlic Bulbs from China in Antidumping Case.
Fresh Garlic Producers Association v. United States [Eaton, J.]. On July 16, 2015, the Court of International Trade rejected a domestic industry challenge to Commerce's calculation of a surrogate value for the raw garlic bulb inputs of the two largest exporters of fresh garlic from China. The case concerns the 17th annual administrative review of the antidumping duty order for fresh garlic from China in which Commerce chose Ukrainian data to calculate a surrogate value for raw garlic bulb. Commerce had to choose between the data contained in two databases that reflected prices at different levels of trade, neither of which matched the level of trade of the Chinese garlic being valued. The Court held that, faced with imperfect alternatives, Commerce's decision was reasonable and supported by substantial evidence. The Court, therefore, sustained Commerce's determination and entered judgment for the United States.
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ZEROING AND THE INCREASING STRENGTH OF PUBLIC INTERNATIONAL LAW
By Anna Victoria Quiñones Barr*
As the global hegemons came to understand the underlying causes of the Second World War (the "War") it became evident that the international system needed to be reformed.
To resolve these failings, intergovernmental organizations ("IGOs") were created to help deter the development of nationalist and protectionist trade policies, encourage multilateralism, and establish stable dispute settlement forums where nations could resolve their disputes.
These new IGOs caused an unprecedented shift in the paradigm of public international law by altering the relationship between sovereign states and IGOs. Whereas before the War, the notion of "public international law" was largely nonexistent, after the War, it began to become the norm. However, the post-War IGOs were granted limited authority and strength. Thus, their ability to induce public international law into domestic policy remained minimal.
This changed after the Uruguay Round, where the new World Trade Organization ("WTO") came to fruition. The Uruguay Round Agreements took the existing notion of public international law and pushed it further. The WTO was unlike any other IGO, as its members voluntarily granted it the ability and authority to influence Member's domestic policy through sanctions and other international trade disciplines.
This alteration has raised a number of difficult questions with respect to the relationship between the international law created by the WTO and the domestic law of its member states ("Members"). Indeed, the WTO maintains a tenuous balance between authority and flexibility. Though Members must act pursuant to WTO law or suffer the economic consequences, the WTO may not directly alter Members' domestic law to ensure that this occurs.
Problems with this arise when the WTO Dispute Settlement Body ("DSB") diminishes Members rights through the adoption of flawed Appellate Body reports. "Flawed" meaning an incorrect interpretation of an ambiguous statute. This problem occurred when the United States ("US") was forced to comply with a string of high-profile cases where the Appellate Body forbade investigative authorities from using "zeroing" when calculating dumping margins. These findings were inconsistent with the previous
General Agreement on Tariffs and Trade
("GATT") regime's interpretation of the antidumping provisions and incorrectly diminished the rights that the United States assumed when it became a member of the Uruguay Round.
Indeed, under the GATT regime, zeroing was a permissible practice. In EC-Audio Cassettes, the GATT panel held that negative dumping margins did not need to be considered when determining the total dumping margin. Moreover, the Anti-dumping Agreement ("ADA") states that when a provision allows more than one permissible interpretation, the panel and Appellate Body must validate the domestic measure if it rests upon one of those permissible interpretations. The Appellate Body has continuously held that the ADA forbids the use of zeroing.
EC - Bed Linen
was the first case where the Appellate Body
condemned zeroing. It explained that zeroing the negative dumping margins resulted in investigating authorities failing to consider the entirety of the prices of all the export transactions, which is essential under ADA article 2.4's
"fair comparison"
requirement.
Shortly after the circulation of the EC-Bed Linen report, Canada successfully challenged the US Department of Commerce's ("Commerce") use of zeroing in US-Softwood Lumber. Here, the Appellate Body held that Commerce's use of zeroing when calculating dumping margins using the average-to-average methodology was inconsistent with the ADA.
The Appellate Body enlarged the scope of its ban on zeroing in US-Zeroing (EC). Here, the Appellate Body held that Commerce's use of zeroing in administrative reviews was inconsistent with ADA article 9.3 and GATT article VI.2 because it resulted in a higher antidumping duty for foreign producers then their margins of dumping. The Appellate Body also banned Commerce's use of zeroing in the average-to-average methodology holding that it violated ADA article 2.4.2 and GATT VI.2.
Most recently, in US-Zeroing and Sunset Reviews, the Appellate Body forbade Commerce's use of zeroing in original investigations for the transaction-to-transaction comparison method and forbade zeroing in periodic and new shipper reviews.
The DSB adopted all the above-mentioned Appellate Body reports, forcing US compliance. Though the US correctly protested against the Appellate Body's interpretation, Canada, EU, and Japan's threats of economic sanctions forced the Commerce to stop using zeroing. This change was done in accordance to the Uruguay Round Agreement Act ("URAA") Section 123 and 129 requirements.
The combined weight of the repeated WTO decision that zeroing is impermissible under the Anti-dumping Agreement has settled the zeroing issue. Now what matters is analyzing and resolving the problems that these decisions brought to light. First, the Department of Commerce's compliance with the zeroing decisions revealed that executive agencies decide whether the US will comply with WTO decisions and, if so, how. This authority is misplaced and should lie with Congress. The methods the Department of Commerce uses are also problematic and lead to partisan, opaque decision-making.
Commerce's compliance also demonstrated that private parties are the ones that bare the ultimate cost of executive agencies implementation of WTO rulings. Private parties, however, have a nominal ability to participate in or effect WTO adjudication. This is because WTO dispute settlement procedures only allow Members to initiate disputes. Thus, private non-state actors like corporations or non-governmental organizations lack standing and may not initiate a dispute under WTO's current dispute settlement procedures. Also, private parties have no legal right to be heard by a panel or the Appellate Body. Because WTO decisions directly affect private parties, the WTO dispute settlement procedures should be altered to grant private parties the legal right to be heard.
* Anna Victoria is a third-year law student at Case Western Reserve University School of Law. She has a B.A. from the School of Economic, Political and Policy Sciences at the University of Texas at Dallas. She is grateful to Peter M. Gerhart, Natalie Hemmerich, and Juscelino Colares for their guidance in writing this Note.
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