In addition to explaining the history of the case and the issue in general, Scott comments on the impact of yesterday's GPX decision:
So what happens to all of these CVD orders and investigations? Well, it seems somewhat likely that Commerce and/or the domestic industry will appeal the CAFC's decision to the Supreme Court if only to keep all of the existing orders in place for a while, but the chances of the Supreme Court hearing the case (via a writ of certiorari) seem pretty low. Chief Justice Roberts' court is notoriously stingy about granting cert, especially on highly technical stuff like this. It's not impossible, but I definitely wouldn't bet on it.
But say there's no appeal (or the SCOTUS denies cert), then what? Sure, Congress can - and almost certainly will - amend US law to expressly allow for the imposition of CVDs on NME imports, and any such legislation would pass by big bi-partisan margins because both trade remedies measures and anti-China measures have broad congressional support (hooray bi-partisanship... sigh). But can the existing orders remain in force or the pending investigations stay pending? The CAFC's decision is much broader and more fundamental than the lower CIT's decision which only applied to DOC's methodology. If the CIT ruling had merely been affirmed, then DOC could have theoretically kept the orders in place and merely recalculated the duties. The CAFC, however, ruled that existing US law prohibits any and all imposition of CVDs on NME imports. So if/when Congress amends US CVD law, can it be applied retroactively to previously-decided (or initiated) cases that were, according to the CAFC, fundamentally contrary to US law?
I know that there are some pretty significant loopholes regarding the Constitution's express ban on ex post facto laws, but even if the Congressional amendment of US CVD law were not found to be an unconstitutional ex post facto law, it would seem that it could still run up against a pretty reasonable challenge by US importers. For example, would they deserve to reimbursed for all of the duties illegally collected on affected Chinese goods since 2007? I (clearly) have no idea, but I'll bet that we're going to find out soon enough.
And what will the CAFC's decision do to the United States' ongoing implementation of the WTO Appellate Body's ruling in DS379 that Commerce's simultaneous application of anti-dumping duties and countervailing duties in four US investigations of Chinese goods violated WTO rules? That implementation is ongoing, and Commerce's "Section 129" decision there is due in late February 2012. The CAFC's decision could make that process - and China's scrutiny of it - even more complicated, wouldn't you think?
...
What a mess. Clean-up is not going to be easy, unless, of course, the United States did the rational thing and simply designated China a "market economy" and began applying a standard, perfectly legal AD/CVD methodology in current and future investigations of Chinese imports.
