Extract
U.S. Court of International Trade decisions during 2007 in appeals of determinations of the U.S. International Trade Commission.
I. INTRODUCTION
The U.S. Court of International Trade ("CIT" or the "court") reviews determinations of the U.S. International Trade Commission (the "Commission" or "ITC") pursuant to 28 U.S.C. [section] 1581 (c). (1) In general, an "interested party" who appeared in a underlying antidumping or countervailing duty proceeding may appeal a determination of the Commission to the court. (2) The most commonly appealed cases arise out of negative preliminary injury determinations in original investigations, final injury determinations in original investigations, and sunset review determinations. (3) During 2007, the CIT issued nine written opinions involving appeals from the ITC. The court remanded two negative preliminary determinations in original investigations, affirmed a negative final determination on remand in an original investigation, affirmed two affirmative sunset review determinations, and remanded an affirmative sunset review determination. The court also issued written opinions granting an application for preliminary injunction to enjoin liquidation of entries pending appeal, denying another such application for injunctive relief pending appeal, and denying a motion to strike attachments to a reply brief filed with the court. The opinions having the greatest impact on how the ITC decides cases involved the application of the Bratsk (4) "replacement/benefit" test in an original investigation, (5) the interpretation of the "likely" standard in a sunset review, (6) and the application of the "clear and convincing evidence" standard in preliminary original investigations. (7) The other five CIT decisions from 2007 deserve careful attention as well and are discussed separately below. For the most part, these decisions did not involve major legal issues, and they broke little new ground. The CIT's decision in Mittal Steel Point Lisas Limited. v. United States, however, is an important case in a series of decisions relating to the application of a principle announced two years ago by the U.S. Court of Appeals for the Federal Circuit in Bratsk. Under this principle, a domestic industry is not to receive relief from unfair trade even if the evidence relating to the statutory injury factors would otherwise compel an affirmative determination if (1) the case involves a "commodity product," (2) imports from non-subject countries are a "significant factor" in the market, and (3) there is reason to believe that non-subject imports would have replaced the subject imports had those imports not been present in the market or would do so if antidumping/ countervailing duty orders against subject imports are imposed. The ITC has referred to this as the "replacement/benefit test" and has vehemently argued that it is contrary...See the full content of this document
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