Court of Appeals Issues Important Decision on the Calculation of Anti-Dumping Duties

On September 3, the Court of Appeals for the Federal Circuit issued a decision in Changzhou Trina Solar Energy v. US, regarding the calculation of anti-dumping (AD) duties in cases involving parallel anti-subsidy (or countervailing duty, CVD) determinations. (The decision may be found here.) The Court concluded that where the Department of Commerce found that an export subsidy had been conferred on an exporter by its government, Commerce must adjust the calculation of the parallel AD duty to avoid double counting the economic impact of the subsidy. Even where the export subsidy finding was based on “adverse facts available” (AFA) because of non-cooperation by the foreign government, the mandatory language of the AD statute (using the word “shall”) requires the adjustment. Commerce cannot refuse to make the statutory adjustment as punishment, in order to induce the foreign government to cooperate in future cases. The Court’s decision is significant in light of the number of cases in which there are parallel AD and export subsidy determinations involving the application of AFA. For more information, contact us at neil@neilellislaw.com.