Arent Fox partners Matthew Clark and Matthew Nolan were among a group of prominent international trade attorneys surveyed by legal publisher Law360 to determine the “International Trade Cases of the Decade” in a recent issue.

Matt Clark discussed a 2007 case dealing with coated free-sheet paper from China in which the US Department of Commerce reversed a policy that had been in place for two decades and decided that countervailing duties could be applied to subsidized products imported from a country the United States has designated a nonmarket economy.

“Since the ruling came down, just about every trade remedy case has included a subsidy component, dramatically altering treatment of China under US trade law,” Law360 reported. “Matthew Clark, a partner at Arent Fox LLP, noted that the decision to apply countervailing duties to China presented a legal issue that still is being hotly contested in GPX International Tire Corp. v. United States in the US Court of International Trade.”

Matt Nolan commented on the so-called “Byrd Amendment” and its aftermath. The Byrd Amendment (officially titled “The Continued Dumping and Subsidy Offset Act of 2000”) required money raised from anti-dumping and countervailing duties on imports to the United States be distributed to the domestic companies that filed a complaint. Prior to the Byrd Amendment, the duty funds were placed in the federal government's budget.

Even though Congress repealed the Byrd Amendment in 2006 after the World Trade Organization ruled it illegal and various WTO members (including Japan, Canada and the European Union) issued retaliatory sanctions against the United States, Mr. Nolan noted the law is still being litigated in the courts.

“There are about 40 cases pending in the courts,brought by domestic companies that did not receive funds under the law and are challenging its constitutionality,” Law360 writes. “Those challenging the law claim that its provision to distribute duty revenue only to domestic companies that filed trade remedy complaints violates the First Amendment right to free speech by not letting companies that oppose trade remedy cases share in the proceeds.”

These challenges 'bring the First Amendment into it in a way I've not seen before in a trade case,' Nolan said.”