Global trade in goods is regulated by the antidumping and countervailing duty laws that permit duties to be imposed against dumped or subsidized imports that cause material injury or a threat of material injury to the U.S. industry. Dumping and countervailing duty cases can often reshape the competitive environment in an industry and can have profound effects on the companies involved. These remedies are sanctioned by agreements adopted by the World Trade Organization (WTO) and are available in more than 100 countries. If a petition is successful, significant duties can be imposed on imports.
Dumping and Subsidization Investigations
In the United States, investigations of dumping and subsidization are conducted by the U.S. Department of Commerce, and injury is determined by the U.S. International Trade Commission (USITC) within tight timeframes that overlap at critical junctures. Counsel must have the legal and technical support necessary to deal effectively with these rigorous schedules.
Wiley Rein is one of the leading firms in this area and has been recognized by Chambers USA for its “impressive depth of expertise in trade remedies and policy matters” (2012) and as home to “a superb trade remedies and trade policy practice … known in particular for its work on the petitioner side” (2011). On behalf of clients in a variety of domestic industries, including steel, steel products, paper, and chemicals, we have won significant antidumping and countervailing duty cases, including a major investigation of structural steel beams and two recent sunset reviews concerning concrete reinforcing steel bars (“rebar”) and, more recently, hot-rolled steel sheets. By delivering affirmative determinations against rebar imports from China, Ukraine, Latvia, Poland, Moldova, Belarus, and Indonesia, and hot-rolled steel products from China, India, Indonesia, Taiwan, Thailand, and Ukraine, the USITC has ensured that duties will remain in place against dumped imports from these countries for up to five additional years.
In two of the most noteworthy trade cases filed in 2011, Wiley Rein is lead counsel both for the Wind Tower Trade Coalition and for SolarWorld Industries America Inc. and the Coalition for American Solar Manufacturing in the first U.S. antidumping and countervailing duty cases involving renewable energy. We also recently represented the Association of American School Paper Suppliers in successfully petitioning the U.S. Department of Commerce to impose antidumping and countervailing duty margins on China, Indonesia, and India for dumping and subsidizing lined paper school products.
Wiley Rein is also a leader in the growing field of countervailing duty (subsidies) cases involving China, having written two authoritative studies on the topic: “The China Syndrome” and “Money for Metal.” Wiley Rein attorneys have also testified before the U.S. Trade Representative (USTR) and Organization for Economic Cooperation Development (OECD) with regard to China's compliance with WTO obligations and its government's subsidization of the steel industry.
We are among a limited number of practices that regularly serve as principal counsel for major unfair trade investigations. We provide both the technical expertise and judgment necessary for representing clients in today's environment. Many of our lawyers have the extensive technical experience that is a prerequisite for effective legal representation before the USITC and the U.S. Department of Commerce. In addition, many of our attorneys have served in various government agencies and understand how public relations activities and involvement from Congress, the Executive branch, and diplomatic channels can affect the outcome of an investigation. Our success in this area reflects our experience using all of these tools at that right time and place.
Escape Clause/Section 201
The "escape clause," also known as safeguards Section 201, is another important remedy that is available to limit imports from all foreign sources that are a cause of injury to domestic producers. This remedy can be applied without consideration of the "unfairness" of import prices. The U.S. statute, Section 201, provides that the imports from all foreign sources must be a principal cause of the injury. Section 201 is inherently political in nature because the final decision on relief (usually in the form of quotas) is made by the USTR, taking into account political as well as economic factors. We were lead counsel for much of the domestic steel industry in the global safeguards investigation. We also represented the U.S. wheat gluten industry. Our success in these cases has been directly related to our ability to coordinate the legal, government relations, and public relations skills necessary for success.
Market Access/Section 301
Market access initiatives are another important practice area. We have been involved in numerous Section 301 proceedings involving service providers, steel producers, and intellectual property owners. As one example, the Group prepared, filed, and successfully prosecuted a Section 301 action for a U.S. client against the government of Norway. This proceeding led to the first financial settlement of a Section 301 investigation: Damages were paid directly to our client, not the U.S. government.
International Trade Commission Section 337 Proceedings
Our attorneys are experienced in representing clients in patent infringement proceedings before the USITC under Section 337 of the Tariff Act. Section 337 is designed to prevent the entry of infringing goods into the United States, and the Act is designed to provide a resolution on an expedited schedule—typically within 12 months. We regularly serve clients in these accelerated proceedings.
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