On January 10, 2018, Canada circulated to WTO members a request for consultations challenging several aspects of the United States antidumping and countervailing proceedings. The request for consultation is available on the WTO’s website and can be found here.

In particular, Canada challenges:

  1. the way in which the U.S. Department of Commerce refunds cash deposits after adverse WTO determinations;
  2. the United States’ suspension of liquidation of cash deposit requirements when the U.S. Department of Commerce preliminarily determines critical circumstances exist;
  3. the U.S. Department of Commerce’s treatment of certain export measures by foreign governments in the agency’s countervailing duty proceedings;
  4. the U.S. Department of Commerce’s calculation of benefits involving the provision of goods for less than adequate remuneration in the agency’s countervailing duty proceedings; and
  5. the U.S. Department of Commerce’s procedures for collecting evidence in antidumping and countervailing duty investigations.


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The U.S., EU and Japan issued a joint statement at the 11th Ministerial of the World Trade Organization in Buenos Aires, pledging trilateral cooperation to combat a number of unfair market distorting and protectionist practices by third countries, including severe excess capacity, government-financed support, market-distorting subsidies, state owned enterprises, forced technology transfer, and local content requirements and preferences.

Though not mentioned by name, China was the widely-interpreted intended target of the message. All three countries are bearing the brunt of flooded steel and aluminum fueled by overcapacity in Chinese markets, and the U.S. and EU are denying China’s demand for market economy treatment based on numerous existing market distortion of the kind described in the joint statement.  Many of these practices were also the focus of negotiations under the Trans-Pacific Partnership, which the U.S. exited earlier in the year, and which also was aimed at shaping Chinese trade behavior. 
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Last week, the United States filed its first legal analysis of the China non-market economy issue in a dispute at the World Trade Organization brought by China against the European Union.

As we have reported here and here, the question of whether the United States would continue to treat China as an non-market economy (“NME”) for purposes of the Department of Commerce’s antidumping duty analysis was recently decided by the Administration.  In a 200-page memorandum issued at the end of October, Commerce announced that it would continue to apply alternative dumping methodologies with respect to China given the substantial evidence that China continues to be an NME.

That has not stopped China from initiating dispute settlement proceedings at the World Trade Organization (“WTO”) against the European Union (DS516) and the United States (DS515).  In each dispute, China is challenging the WTO member’s applied antidumping duty methodology with respect to imports from China, which China believes are prohibited under a provision of its 2001 Protocol of Accession to the WTO and inconsistent with provisions of the WTO Antidumping Duty Agreement and the General Agreement on Trade and Tariffs (“GATT 1994”). 
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Earlier this month, the Office of the U.S. Trade Representative (“USTR”) published a notice seeking public comment and participation in a hearing on Russia’s implementation of its obligations under the World Trade Organization (“WTO”). Public comments, summaries of hearing testimony, and requests to appear at the hearing are due on September 22, 2017.  The hearing will be held at USTR on September 28, 2017.

Written comments and testimony at the hearing will assist USTR in preparing its annual report to Congress on how Russia has done in meetings its WTO commitments. This will be USTR’s fifth such report to Congress pursuant to the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, known as the Magnitsky Act.  The Magnitsky Act marked the extension of permanent normal trade relations to goods and services from Russia and allowed the United States to recognize Russia as a new member of the WTO, which it had joined several months prior to the law’s enactment.


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According to a White House Statement issued on June 26th, President Donald Trump intends to nominate two important trade positions within the U.S. Department of Commerce (“Commerce”) and the International Trade Commission (“USITC”).

  • Peter B. Davidson, Senior Vice President for Congressional Relations at Verizon Communications, was selected by President Trump to be general counsel of Commerce.  Prior to Verizon, Mr. Davidson served as General Counsel to the United States Trade Representative (“USTR”).  He has also served as Vice President for Congressional Relations at USWEST and Qwest, and General Counsel and Policy Director to the Majority Leader of the House of Representatives.  Mr. Davidson earned his bachelor’s degree at Carleton College, and his law degree from the University of Virginia School of Law.
  • Jason Kearns was selected to be a Commissioner of the USITC for the remainder of a 9 year term expiring December 16, 2024.  Mr. Kearns currently serves as Chief International Trade Counsel (Democratic Staff) to the Committee on Ways and Means in the House of Representatives.  In this position, Mr. Kearns advises Members of Congress on legislation concerning trade and oversight issues involving the USTR and other agencies involved in international trade policy and regulation.  Before that, he served for three years in the Office of the General Counsel to the USTR.  From 2000 through 2003, Mr. Kearns worked in the international trade group of the law firm, WilmerHale.  Kearns has a master’s in public policy from Harvard University’s Kennedy School of Government, a law degree from the University of Pennsylvania and a bachelor’s degree from the University of Denver.


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Earlier this month, India requested consultations with the United States at the WTO on the United States’ compliance with a WTO Appellate Body (AB) ruling from 2014.  That AB ruling held, in part, that the U.S. ITC had inappropriately “cross-cumulated” both dumped and subsidized subject imports in determining whether hot-rolled steel from several countries caused material injury to the domestic hot-rolled steel industry.

The United States had two years to comply with the AB ruling, pursuant to an agreement reached with India.  In March 2016, after briefing by interested parties, including Kelley Drye on behalf of domestic hot-rolled steel producer ArcelorMittal USA LLC, the ITC issued a “Section 129 Consistency Determination” (USITC PUB. 4599).  The ITC concluded that, under U.S. law, it was required to cumulate subject imports from India – whether subject to an antidumping or countervailing duty investigation – with imports from the other subject countries because the statutory requirements for cumulation had been met (and also continued to find that the domestic industry had been materially injured by cumulated subject imports).  In its April 2016 final determination in the investigation on PET Resin from four countries (USITC Pub. 4604), the ITC explained:
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