Elliot Feldman, Team Argue Against Lumber Tariffs Before International Trade Panel

News / May 8, 2019

Partner Elliot Feldman is quoted in an article published May 8, 2019, by The Globe and Mail, Canada’s most widely circulated newspaper. Feldman, Partners Mark Bailen, John Burke and Mike Snarr, Counsel Mark Lehnardt and Associates Jake Frischknecht and Lindita Ciko Torza are representing Resolute Forest Products Inc., the Ontario Forest Industries Association and the Conseil de l’industrie forestiere du Québec in a multibillion-dollar trade dispute, Softwood Lumber from Canada, before a NAFTA binational panel. The U.S. Department of Commerce found Canadian softwood lumber unfairly traded, and the U.S. International Trade Commission (ITC) ruled that the unfairly traded imports injured the U.S. industry notwithstanding that, during the period of investigation, the industry boasted record profits. The ITC injury determination sustained duties averaging 20.23 percent. The hearing on May 8 was for the appeal by Canadian parties of the ITC injury determination.

Feldman said the ITC’s determination was based on a “rainy day” theory when there was no injury, only a long-term forecast of a market downturn and the misuse of punitive duties to help American companies save a lot of money during the good times that corresponded to the period of investigation.

“The law isn’t there to increase your profits. The law is there to protect you from unfairly traded imports,” he told the hearing at the American University Law School in Washington. “I don’t believe the law is written to fatten the cow.”

“So the cow has to die?” responded Stephen Claeys, a trade lawyer and one of the American members of the binational panel.

“The cow doesn’t have to die. It just doesn’t have to get that fat,” Feldman replied.

Lehnardt led the briefing on injury at the ITC and Bailen led the briefing on like product (because separate arguments were made for the exclusion of certain lumber from the antidumping and countervailing duty orders).

A decision is expected in the coming months.

Read the article (registration required).