Feldman and Burke Publish "Testing the Limits of Trade Law Rationality" in American University Law Review; Article Lays Groundwork for Symposium

Articles / April 30, 2013

Partner Elliot Feldman, leader of the firm’s international trade practice, and Partner John Burke coauthored the lead article in the April 2013 edition of the American University Law Review. “Testing the Limits of Trade Law Rationality: The GPX Case and Subsidies in Non-Market Economies,” notes that most international trade disputes recently have centered on Chinese merchandise.

All of China’s principal trading partners treat the country as a non-market economy (NME), applying special methodologies for determining whether Chinese enterprises are exporting merchandise at less than fair value. But, until 2006, the recognition of China as an NME meant that unfair trade allegations were based on pricing theories for antidumping, never government programs or actions unfairly subsidizing exported merchandise.

The U.S. began launching simultaneous antidumping duty and countervailing duty investigations of Chinese merchandise after the November 2006 congressional elections. This change in practice inevitably triggered legal disputes that collectivized under the banner of GPX, an American importer of off-the-road tires from China. Feldman and Burke, with Partner Mike Snarr, had represented the People’s Republic of China in one of those disputes.

Feldman and Burke’s article examines a single line of cases (identified collectively as GPX) that arose from investigations at the U.S. Department of Commerce, were appealed to the U.S.Court of International Trade and went on to the U.S. Court of Appeals for the Federal Circuit.

In March, the Law Review convened a special symposium, which BakerHostetler hosted in the D.C. office, focusing on the contents of the article. More than 100 were in attendance to hear Burke present the essence of the article for discussion by a panel including a federal judge, a Hill staffer and two practicing attorneys. Feldman moderated.