International Trade Law News

The Department of Commerce recently announced the initiation of two separate investigations of live swine from Canada. The first is an antidumping investigation to determine if live swine from Canada is being sold in the U.S. at less than fair market value. The other is a countervailing duty investigation to determine whether Canadian exporters of live swine receive subsidies from the Canadian government that fail to comply with international trade agreements.

The Department of Commerce is expected to make a preliminary ruling on the antidumping investigation within 90 days of the initiation of the investigation and a decision on the countervailing duties investigation in early May.

In another ongoing dispute between Canada and the U.S., the WTO has ruled that U.S. Antidumping duties on softwood lumber from Canada were consistent with the WTO Antidumping Agreement.

The WTO did not rule, however, that every U.S. practice was legal under the Antidumping Agreement. Most notably, the WTO panel ruled that the U.S. practice of zeroing was inconsistent with Section 2.4.2 of the Antidumping Agreement. This decision contravenes the U.S. Court of Appeals for the Federal Circuit’s ruling in Timkin v. U.S., in which the Federal Circuit ruled that Commerce’s practice of zeroing negative margins was in accordance with U.S. and international laws. The Timkin court distinguished the U.S. practice from previous WTO decisions, namely the EC – Bed Linens decision, on the basis that those WTO decisions “did not involve the United States.” Timkin Company v. United States, 354 F.3d 1334 (Fed. Cir. 2004).

Under the Dispute Settlement Understanding, both the United States and Canada may appeal the decision.