Citation by U.S. Courts to Decisions of International Tribunals in International Trade Cases

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The topic of the Symposium is the citation to foreign court precedent in domestic jurisprudence. I am going to take a somewhat different approach in my presentation. Instead of citation to foreign court precedent, I will discuss the citation by U.S. courts to decisions by international tribunals in international trade cases.

First of all, I should point out that unlike most of the other speakers, I come before you not as an intellectual or academic but simply as a practitioner. I am Senior Counsel with the law firm Sidley Austin LLP and my practice focuses on international trade. Secondly, I come here as an advocate for implementing the U.S. trade laws in accordance with the international obligations of the United States. Now, Scott McBride and I may disagree on this issue; but I think this disagreement, in part, is really a complaint by Scott, his agency, and some members of Congress, about decisions by WTO Panels and NAFTA Panels that have been lost by the United States. Had the U.S. won more of these cases, I doubt that you would have heard the same complaints about the WTO and NAFTA decisions. But my job here today is not to defend those decisions, but rather to discuss how they are applied or not applied by U.S. courts under U.S. law.

In order to understand what we are talking about here, we need to have some understanding of the antidumping and countervailing duty laws. Fortunately, Mr. McBride has saved me from the task of having to explain the antidumping law, which is obscure, complex, confusing, and to those other than trade lawyers, extremely dull. I have learned that whenever anyone asks what I do for a living, their eyes soon glaze over and they nod off when I try to explain the constructed export price offset or the sales below cost provision of the antidumping law.

To give you an over-simplified explanation, the antidumping law imposes additional duties on imported products that are sold in the United States at prices that are below the prices for such or similar products in the home market of the exporting country, or that are sold in the home market below cost, if the imports injure or threaten to injure a domestic industry. (1) The countervailing duty law imposes additional duties to offset subsidies that are granted on the production or exportation of imported products, again if the imports injure or threaten to injure a domestic industry. (2) The issues of dumping or subsidy are decided by the Commerce Department. (3) The issue of injury or threat of injury is decided by the International Trade Commission. (4) These decisions can be appealed to the Court of International Trade (CIT) (5) and then to the Court of Appeals for the Federal Circuit (CAFC). (6)

These laws have been around for many years. What is new is that administrative decisions are now subject to review by two international tribunals as well as U.S. courts--NAFTA binational panels and WTO dispute settlement panels. (7) The question is what weight, if any, will the U.S. courts give to decisions of the international tribunals?

The topic of my presentation is what we fondly refer to as the Charming Betsy Doctrine that was established by Chief Justice John Marshall in 1804 in the case of Murray v. Schooner Charming Betsy. (8) In Marshall's words, "[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." (9) This maxim has guided U.S. courts over the past 200 years, although it has been honored more in the breach than in the observance in international trade cases.

The CIT and the CAFC review administrative decisions in antidumping and countervailing duty cases under the standard of Chevron U.S.A. v. Natural Resources Defense Council. (10) Under Chevron the courts first consider whether the agency's decision is required or prohibited by an explicit statutory provision. (11) Then, if the statute is silent or ambiguous, the courts defer to the agency as long as the agency's decision is based upon a permissible interpretation of the statute. …