Washington, D.C., partner John Burke, Managing Editor of Baker Hostetler's China-U.S. Trade Law blog, was quoted in the October 5, 2009, International Trade Law360 article, "Mistakes To Avoid In Duties Cases."
According to the article, guiding clients through an anti-dumping or countervailing duty investigation can be a complex process, and there are a number of common errors lawyers should avoid to ensure that the process runs smoothly.
One mistake lawyers often make when preparing responses to [U.S. Department of Commerce] questionnaires is just to take information from their clients at face value and not investigate to make sure it's correct, said Burke. On some of the more technical aspects of the questionnaire, "clients may not understand the question Commerce is asking and give what they think is a right answer that's not right," he said. By catching those errors before Commerce sees the information, lawyers can avoid headaches down the line. In addition, lawyers often miss opportunities to add context to their responses in questionnaires that can help their case, Burke said. For instance, from the raw data it may appear that a company's imports have increased dramatically, but that may be only for a limited time because of a special order. Putting information like that in context, rather than leaving it unexplained, will lead investigators to analyze it differently, he said.
One of the most important stages of a case, according to Burke, is when representatives of the Commerce Department meet with a foreign company to verify the accuracy of the information it submitted to investigators. It's critical for lawyers to ensure that all the information is well prepared and organized so that when Commerce begins asking questions, "there are no hiccups," Burke said. "When there's anything complicated, you need to be able to explain it rationally, rather than sit around twiddling your thumbs trying to figure out what's what," he said. In those meetings, lawyers in effect act as translators for their clients, he said, not in terms of language, but in terms of helping the company understand what Commerce is looking for, Burke said.
According to the article, when a case ends up before the U.S. Court of International Trade (CIT), the court can rely only on the agency record from earlier proceedings. Certain legal arguments may not prevail with Commerce, but if lawyers plan to take up those arguments at the CIT, they need to be on the record nevertheless, Burke said. "You need to think ahead to the argument you want to make in court. That's hard to do, because you don't know what you're going to argue until you have a decision," he said. "It requires you to think about what you're doing five steps ahead."
According to the article, guiding clients through an anti-dumping or countervailing duty investigation can be a complex process, and there are a number of common errors lawyers should avoid to ensure that the process runs smoothly.
One mistake lawyers often make when preparing responses to [U.S. Department of Commerce] questionnaires is just to take information from their clients at face value and not investigate to make sure it's correct, said Burke. On some of the more technical aspects of the questionnaire, "clients may not understand the question Commerce is asking and give what they think is a right answer that's not right," he said. By catching those errors before Commerce sees the information, lawyers can avoid headaches down the line. In addition, lawyers often miss opportunities to add context to their responses in questionnaires that can help their case, Burke said. For instance, from the raw data it may appear that a company's imports have increased dramatically, but that may be only for a limited time because of a special order. Putting information like that in context, rather than leaving it unexplained, will lead investigators to analyze it differently, he said.
One of the most important stages of a case, according to Burke, is when representatives of the Commerce Department meet with a foreign company to verify the accuracy of the information it submitted to investigators. It's critical for lawyers to ensure that all the information is well prepared and organized so that when Commerce begins asking questions, "there are no hiccups," Burke said. "When there's anything complicated, you need to be able to explain it rationally, rather than sit around twiddling your thumbs trying to figure out what's what," he said. In those meetings, lawyers in effect act as translators for their clients, he said, not in terms of language, but in terms of helping the company understand what Commerce is looking for, Burke said.
According to the article, when a case ends up before the U.S. Court of International Trade (CIT), the court can rely only on the agency record from earlier proceedings. Certain legal arguments may not prevail with Commerce, but if lawyers plan to take up those arguments at the CIT, they need to be on the record nevertheless, Burke said. "You need to think ahead to the argument you want to make in court. That's hard to do, because you don't know what you're going to argue until you have a decision," he said. "It requires you to think about what you're doing five steps ahead."
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