“Trade remedies” are the laws used by the United States and other countries to protect domestic industries from injury or threatened injury caused by the competitive effects of international trade.
By far the most prevalent of these are antidumping (“AD”) laws intended to prevent foreign products from being sold at artificially low prices, and countervailing duty (“CVD”) laws intended to offset certain subsidies that foreign governments may be offering to exporters. In the United States, the AD/CVD laws are jointly administered by the Department of Commerce, which is responsible for determining whether dumping is happening or whether a countervailable subsidy exists, and the International Trade Commission, which is responsible for determining whether the domestic industry is injured or threatened by such allegedly unfair trade. A third important form of trade remedy, known as a “safeguard,” is intended to temporarily protect domestic industry from increases in fairly traded imports.
In the United States there are also a number of other trade remedy laws, many of which saw significantly expanded use since 2017 and will likely continue to play a larger role in the future. For example, Section 301, which is intended to respond to alleged unfair practices by trade partners, was the basis for the recent tariffs imposed on most imports from China. Similarly, Section 232, which allows the United States to impose trade restrictions to protect national security, was the basis for the tariffs imposed in 2018 on imports of steel and aluminum products from most countries.
Trade remedy lawyers function primarily as litigators, and government lawyers also have significant administrative responsibilities. They participate in AD/CVD and other trade remedy investigations before the Department of Commerce and International Trade Commission, and in the judicial review of such investigations before the U.S. Court of International Trade and the U.S. Court of Appeals for the Federal Circuit.
As such, trade remedy law is unique among the international trade legal specializations in that it is primarily an adversarial practice, with practitioners broadly serving in one of three camps: petitioners’ lawyers who represent domestic industries, respondents’ lawyers who represent foreign producers and importers, and the government lawyers in the middle. Trade remedy lawyers may also be involved in challenging or defending the actions of a national government in proceedings before the dispute settlement arm of the World Trade Organization.
The trade remedy field is a good option for lawyers who want to litigate, but are not interested in the significant discovery that characterizes most commercial litigation in the United States, Trade remedy litigation is generally conducted “on the agency record,” meaning that administrative and judicial review proceedings are decided based on the information provided by interested parties in response to questionnaires issued by the relevant government agencies.
The trade remedy practice area is also a natural fit for lawyers interested in international affairs, economics, business strategy, and how manufacturers, exporters, and importers conduct their businesses and compete globally. Some trade remedy lawyers may become involved in the formulation of U.S. trade policies. They may advise clients on how a proposed trade agreement may affect them or on what options they have if a country’s violation of an agreement adversely affects them. Lawyers who work for the government may be involved in the negotiation and drafting of trade agreements and in determining if an agreement has been violated. Both private sector and government lawyers may become involved in drafting legislations setting forth U.S. trade policy objectives and how they will be implemented.
At least in private practice, compared to practitioners in other areas of international trade law, trade remedy lawyers tend to have a relatively small number of active matters at a time, each of which can last for years and involve trade valued in the tens or even hundreds of millions of dollars (and, in some cases, billions).