Domestic Judicial Review of Trade Remedies is a major contribution in an area that has not yet received any significant examination beyond a much shorter piece in the Global Trade and Customs Journal.Footnote ¹ It covers major developments in industrialized and developing countries from all continents except (understandably) Antarctica. The contributions are by leading practitioners, government officials, and scholars.

Article 13 of the WTO Antidumping Agreement and the parallel Article 23 of the WTO Agreement on Subsidies and Countervailing Measures require some sort of independent and prompt review by judicial, arbitral, or administrative tribunals. Yilmaz, of the WTO's Rules Division, points out in the excellent Introduction that this opens up some important possibilities. Most importantly, many domestic review procedures allow for repayment of the illegally collected duties. One of the gravest flaws of the WTO dispute system is that it allows Member Governments to commit WTO violations with complete impunity. The procedural provisions of the WTO Dispute Settlement Understanding (DSU) turn that system into an incentive to delay procedures as long as possible. Not only will the additional illegal trade remedy protection and revenue continue to accumulate, but there is no repayment of the illegal duties, much less interest. Another major role of domestic review systems is that only governments can challenge other governments in the DSU. Those factors mean that very few trade remedies are challenged. Of the nearly 5,000 trade remedy cases initiatedFootnote ² since 1 January 1995, less than 2% have been challenged in the WTO. This is not for lack of success: to date, almost all of the challenges have been at least partially successful. Why are so few challenged?

• • WTO cases cost governments a lot of time and money. Even governments which may wish to raise those challenges often need to find someone to fund them. The exporters, recognizing they will not get any of their money back, do not press their government too hard, unless they are really angry.

• • The two governments with the most resources (in particular, staff attorneys specialized in the material), the US and the EU, in general view themselves as defending their own antidumping decisions, rather than helping their exporters. The EU has been rather better than the US about defending its exporters, but the US has now been willing to do so in one antidumping case on the merits, and on procedural grounds and/or injury in five anti-dumping (AD) and/or countervailing duty (CVD) cases. The US has challenged three Chinese CVD determinations, but in all three cases it has refused to challenge the underlying substantive subsidy issue – Buy America government procurement as a subsidy in the GOES case, the automobile bailout as a subsidy in the Chinese case against US automobiles, and the US subsidy to grain as a pass-through subsidy to animal protein in the chicken case.

By contrast, domestic producers and foreign exportersFootnote ³ can sue in domestic courts or tribunals without having to involve their own government (curiously, as the authors note, some systems do not give the same privilege to their own importers). And, of course, domestic producers have no other forum, since they can hardly challenge their own government in the WTO. Yilmaz also notes (at footnote 15) that Article X.3 of GATT 1994 (from which Article 13 and Article 23 were obviously drawn) requires the ‘prompt review and correction’ of action ‘relating to customs matter’, so any ‘customs matter’ (which is not defined as unrelated to trade remedy cases) is also subject to review under the provision.

Lanouette and Kent provide an excellent outline of both the administrative proceedings for trade remedies in Canada, and the administrative law context into which the judicial review process fits. This leads into a fascinating description of the nuances of the standard of review applied by Canadian courts and the North American Free Trade Agreement (NAFTA) bi-national chapter 19 review panels to trade remedy cases. As they point out, the very high degree of deference to Canadian authorities may lead to a higher number of trade remedy cases brought to NAFTA panels or to the WTO against Canada, although – very noticeably – there have been no challenges fully litigated today against Canada's trade remedy regime under WTO.

The chapter on judicial review of United States trade remedies benefits from the acute insights and vast experience of the two authors, McInerney and Lynch, although as government employees they are somewhat limited in the range of their comments. They are quite candid about at least some of the reality of judicial review, such as the failure to adhere to deadlines. They understandably focus on court decisions deferring to the expertise of the relevant administrative agencies, Commerce and the US International Trade Commission, and the subordinate role of the WTO. They also understandably cannot point out that judicial review of trade remedies in the US is far more searching and less deferential in practice than anywhere else in the world (except in NAFTA bi-national panels under chapter 19).

This creates an unusual phenomenon. Because US courts in law and in practice are neutral between foreign exporters and US competitors, or between private parties and the government, foreign exporters in US trade remedy cases have a neutral forum for their complaints in the US courts, as well as a neutral forum for the injury decision at the US International Trade Commission. On top of that, they have a neutral forum at the WTO. By contrast, US exporters in trade remedy cases outside the US, with the exception of NAFTA bi-national chapter 19 panels, face courts, as described in this book, which tend to defer much more to the local authorities than do the US courts. The result is that the only neutral forum for US exporters is the WTO – but the US government still clearly favors defending its ability to keep out imports rather than helping its exporters, although that may be slowly changing in the judicial review area, as the US has now litigated WTO challenges to trade remedy cases in Mexico and China (the US still remains uninterested in its exporters when it comes to negotiating new or improved substantive rules).

Miranda and Partida do an admirable job of sketching out the complexity of the Mexican review system, which includes administrative reviews, NAFTA bi-national panels, the WTO, and domestic courts, particularly through the uniquely Mexican amparo procedure (but also through the Tax Court and administrative review). Mexico, as a ‘monist’ civil law country, gives direct effect to WTO provisions and, as the chapter notes, at least one NAFTA panel has effectively incorporated a WTO panel ruling into its decision.

The chapter on Colombia also provides a very useful road map through the administrative proceedings and the several possibilities of review which, tantalizingly, includes the possibility of an action against the relevant civil servants for punitive damages and sanctions which the government had to pay because of their negligence. Because review in Colombia proceeds under the general legal provisions rather than trade remedy-specific provisions, it opens up some of the normal litigation possibilities, such as the ability to argue the right to a hearing. The chapter cautions that the choice of review path also determines the possible remedy. To date, there have only been five challenges, all of them resolved in favor of the investigating authority. Lozano suggests the possible need for education of judges on trade remedy law so that judicial review can focus on substantive matters.

The chapter on Brazil by Nasser and Costa illustrates well the importance of situating Article 13 in the context of a country's overall court system. The chapter provides a very clear and useful description of the Brazilian antidumping system, notably, the distinction between the administrative procedure run by the Department of Commercial Defense (DECOM), with the final decision on implementation by the Chamber of Foreign Trade (CAMEX), an inter-ministerial body. As federal government bodies, their actions can be challenged, as with other government actions, under administrative procedural law and before federal judges in each state; regional appeals courts; federal court; and the Higher Court of Justice which reviews the regional courts. One striking aspect of the normal appeals route is the possibility of a mandamus action going directly to the Higher Court of Justice. The grant of an injunction in that context requires posting a cash guarantee, in most cases. But – note the practical aspect – that is still better for importers than posting the duty, because, if they win, the cash will be given back much more quickly in practice than waiting for the tax authorities to reimburse the antidumping duties if they win.

Another interesting aspect noted by the author is the tendency of the Brazilian judges to rely on Brazilian law, without recourse to the Antidumping Agreement (ADA) text, even though Brazil, as a monist country, gives full effect to international treaties to which Brazil is a party. By contrast, parties to cases in Brazil frequently make arguments based on WTO law to both DECOM and CAMEX. As the authors note, one would have expected more WTO cases against Brazil because of the practical ineffectiveness of judicial review (notwithstanding the word ‘prompt’ in Article 13), but, to date, no case has been fully litigated.

The same points are made by DeArtaza in the chapter on Argentina. She notes an amparo case filed in 2000 in which the final decision in this ‘abbreviated procedure’ was only issued in 2005. As she points out, an ordinary law suit filed in 1993 on an antidumping case was not finally decided by the Supreme Court until 2008. She suggests a number of changes in Argentina's administrative review procedure to try to avoid the problems with the courts. As with Brazil, she notes that Argentine courts have paid little attention to WTO decisions so far, but that both petitioners and the investigating authority frequently cite WTO case law. Another factor she notes is the presumption of legality that attaches to administrative decisions under Argentina's administrative law rules.

Leon and Marino point out that while there are very few cases in Peru, the review system is quite sophisticated. They place judicial review in the context of Peru's overall economic reform, and spend considerable detail on the unique Peru administrative apparatus, a quasi-autonomous agency (Indecopi), which is responsible for, among other things, antidumping and countervailing duties, competition law, consumer protection, and several other laws. The Antidumping Commission within Indecopi is reviewed by the Tribunal within Indecopi before any measures can be applied.

Judicial review as such goes through the same procedures as other challenges to administrative processes. This opens the possibilities of both regular and constitutional challenges. As the authors note, in the few cases so far the courts have upheld all Indecopi decisions. However, judges are not really knowledgeable about WTO case law and could use more training. Speed is one point worth noting – it takes the first instance judges only one year to issue their decisions, and the only appeal is to the Supreme Court of Justice.

The European Union system, as reviewed by Vermulst and Sud, is one of the most controversial. The well-known lack of transparency of the EU's administrative proceedings in trade remedy cases almost forces parties into the judicial review system, which uses general, as opposed to specialized, courts. There is also recourse to national courts. For 2000–2010, the average duration at the General Court (the first instance) was 38 months for antidumping cases, and 61 months if appealed to the Court of Justice.

It is worth noting that the European Union, though comprised overwhelmingly of civil law ‘monist’ countries, refuses to give effect to the WTO agreements, for the practical reason that the US – a ‘dualist’ country – refuses to do so. In practice, the EU courts have tended to examine EU antidumping decisions quite carefully for procedural errors, while deferring to the administrators' expertise on substantive matters. (This sounds logical until one realizes that the same courts quit doing that on competition cases some years ago.) The reaction has been an increase in challenges to EU decisions in the WTO, since the exporters can show their governments that there is no practical possibility of winning in the EU courts. Most notably, monetary damages can be awarded against the European Union in these cases.

Yilmaz reviews the still-young Turkish trade remedy laws, first enacted in 1989, and updated with the Uruguay Round agreements (under Turkish law, the Uruguay Round texts are legally binding, but WTO case law is not). Turkey has become the fifth most active user of antidumping, and has also become one of the most active users of safeguards. Judicial review is by the Council of State or by administrative courts at the first instance. The administrative courts can take about a year, and the Council of State around two years sitting as a court of first instance, and another two years for the Council to consider appeals from the Administrative Court. Yilmaz points out the puzzling fact that, though administrative judicial review in Turkey functions relatively well and dates back to 1927, in close to 100 cases involving trade remedies the courts have never faulted investigating authorities. He attributes that to a lack of technical knowledge of trade remedies and suggests specialized courts and better training, especially with respect to WTO jurisprudence.

Israel has had two systems of judicial review and trade remedy cases, one from 1991 to 2005 and a new one in 2005. Reich and Nadel describe the 1991 procedure of challenges before the Advisory Committee which imposed the duties in the first place, followed by appeal to the District Court, the second highest court in Israel. The Advisory Committee challenge did not expose the plaintiff to an award of costs for the other side. It was quite fast, and if no decision was issued within two months, the challenge (of a provisional duty) was deemed to have been granted. And, in any event, the Advisory Committee could in the process of the provisional measure influence the final measure recommended by the Committee. A number of residual questions could be appealed directly to the High Court of Justice, Israel's highest court.

The amendments in 2005 took reviews to the administrative courts, changed the standard of review to a very deferential one, and – finally – implemented the Uruguay Round Agreements. (Israel, as a dualist country following common law practice, does not automatically apply international treaties to which it is a party.) The authors conclude that the pre-2005 system led to many more challenges. As they note, Article 13 of the ADA does not specify the standard of review or even that the review has to apply WTO rules (as they point out, in contrast the WTO Agreement on Government Procurement requires review of ‘alleged breaches of the Agreement’).

Brink describes South Africa's system as ‘complicated, unpredictable, long and costly’. South Africa is an early (1914) user of trade remedies and was a prolific one up to 1978, and since its resumption of activities in the 1990s. The appeals go from the High Court in a region (in the case of antidumping cases, the Gauteng Division in Pretoria) to the Supreme Court of Appeal and, in some cases, the Constitutional Court. WTO is not automatically incorporated in the South African law, but the Supreme Court of Appeal has held the ADA is binding on South Africa and WTO jurisprudence is often cited. While the standard of review is quite detailed and seems to allow many grounds for review, in practice, according to Brink, courts do not lightly interfere with the authority's decisions, allowing significant discretion. There have only been ten judicial review proceedings and a slight majority favored the opponent of the duties. As Brink notes, politely, the ‘Commission has failed to implement several of the decisions that went against it’. Most notably, a Supreme Court decision in 2007 invalidating a large number of duties, effective back to 2005, remains unenforced by the Commission as of this writing in 2013. No WTO cases have been fully litigated against South Africa, which may give the authorities a degree of confidence that they do not need to implement local court decisions. Brink suggests the importance of greater judicial inquiry into the details of the determinations, and too much deference to those determinations, as well as too much time taken. He suggests a specialized court, in particular, using the recently created Competition Tribunal, which reviews decisions of the Competition Commission, on the grounds that it would be more efficient, cost effective, and faster.

Jha's chapter describes the very active judicial review system in India. By the end of 2011, it seems that over 254 appeals had been filed at the initial level, plus 56 in various state high courts on antidumping (and 25 on safeguards), and 25 with the Supreme Court, which makes India possibly the most active user of judicial review for trade remedy measures. Jurisdictionally, India combines direct appeal by the Central Excise and Service Tax Appellate Tribunal for AD and CVD cases, together with the general supervisory role of Indian courts for all the decisions. Even though India is a dualist system, the WTO agreements were considered to have some effect with a few cases expressly relying on WTO dispute cases, something not found in other systems, although normally national legislation and jurisprudence is the basis for review. In the absence of specific provisions, it is unclear whether preliminary duty decisions can be challenged. Normally the courts do not interfere at that stage, although they have not considered themselves excluded from hearing the cases. It should be noted that recourse to the courts by some individual exporters could lead to their individual exclusion on the grounds of the illegality of the duty, without that decision applying to exporters that did not challenge the matter in court. Jha concludes that after a slow start because of lack of familiarity, judicial review of trade remedies in India has become quite robust, with a welcome tendency to rely on WTO agreements. He notes that the cost tends to discourage exporters, so domestic parties have been the major users. He adds some very interesting suggestions in terms of possible reforms within India.

As Gao notes, the judicial review mechanism in China has not yet been tested (one case has been filed, but no action has been taken on it, perhaps because the court is waiting for the authorities to act on a relevant WTO decision against China – although that itself raises questions about how trade remedy cases will be handled in Chinese courts). Gao provides an excellent description of Chinese administrative and procedural steps that would have to be taken for judicial review, in particular in light of the general provisions of the Administrative Litigation Law (ALL) of China. He points out that the specific listing of ‘final determination’ as the subject of judicial review would probably be taken by implication to mean that other interim measures would not be subject to judicial review, although he notes that that may not be the case under the ALL. China is subject not only to Article 13 of the ADA and its ASCM counterpart, but also to a broader requirement of judicial review under Section (B) of China's Accession Protocol. He notes several issues likely to become important as litigation increases:

• • Does the exporting government have standing to bring challenges in antidumping cases?

• • Could China, pursuant to the ‘reciprocity’ provisions in its trade remedy laws, exclude from access to judicial review US exporters, for example, that did not participate in the administrative proceedings (as the US would do to Chinese non-participating exporters), while not applying the same rule the European exporters (as the EU does not have the same rule)?

• • Which agency will have to implement judicial decisions – Tariff Commission? MOFCOM?

• • What court has jurisdiction? And, within Beijing Municipality, which of its courts?

• • While the statute in China provides for judicial review of trade remedy cases, it remains to be seen to what extent Chinese courts will ‘get their hands dirty’ with the details of the case, and the degree of the deference that will actually be granted to the authorities.

• • Gao notes that it is much debated in China whether WTO agreements can be directly applied, especially in light of paragraph 75 of the Working Party Report on China's Accession recognizing the right of individuals and entities to invoke China's commitments.

One important aspect is foreign firms' unwillingness to challenge the Chinese government directly in court, especially as they have the option of having their governments make the challenge at the WTO, thus keeping the firms themselves out of the ‘direct line of fire’.

Lee provides a good description of the administrative procedures in Korea for trade remedy cases and the Administrative Court which conducts judicial review, and of the jurisprudence based on the five cases filed to date. An important point here is that, given the paucity of trade remedy cases, it seems likely the courts will rely heavily on case law in other administrative areas (in the example Lee gives, whether a decision to initiate a proceeding is reviewable).

One important point discussed by Lee is the somewhat confused position regarding applicability of the WTO agreements in judicial review. The answer seems to be yes, for Seoul Administrative Court, which is the court of first instance for trade remedy cases, but it is not entirely clear that WTO agreements are self-executing under Korean law, even though Korea is monist. A further complication is the additional provisions on trade remedy measures in all of Korea's FTAs, raising the prospect that the FTA could be more specific, and that could take precedence over the WTO agreements. Lee recommends the establishment of a specialized international trade law court, on the view that the normal judges tend to defer to the authorities in such complex cases, at least at present.

Bundjamin explains that Indonesia seems to take the position that ‘imposition’ of trade remedy measures can only be appealed to the WTO while the ‘implementation’ by Customs can be appealed to local courts, an incorrect interpretation of Article 13 of the ADA and Article 23 of the ASCM. But, in Bundjamin's view, interested parties could nonetheless seek judicial review in the State Administrative Court or the Supreme Court, or importers could challenge the duties in the Tax Court (after an administrative appeal). So far, the State Administrative Court has avoided substantive issues such as dumping margin calculations, instead focusing on procedural and administrative issues and, to a lesser extent, injury indicators. This has been aided by the Indonesian administrators' tendency to the procedural violation of issuing the final determination after the 18-month deadline (although the Courts have found that deadline in Indonesian law rather than the ADA).

At the time of writing, a new trade law was being considered, so as with any item in the trade remedy area, it would help any potential litigant to check the current situation.

Australia seems to be at an extreme in separating judicial review and merits review. This is complicated by Australia's rather remarkable ‘mood swings’ with respect to antidumping. The most recent legislative swing has sufficiently revised the procedures to render much of Gageler's chapter somewhat obsolete as to the details. Gageler explains in some detail the great deference to the decision makers shown by Australian courts in most trade remedy cases. My Australian local counsel summarized this to me in one of my cases there as ‘the courts will uphold the decision unless they think the Minister was drunk’. That said, the Australian courts show a willingness to wade into the details of both the procedures and the substance, and have built up a jurisprudence on many issues over the years. Of particular note is that, according to Gageler, the court of first instance has and meets a benchmark of 85% of all cases being completed within 18 months of commencement and most of them in a much shorter period.

Japan has had very few trade remedy cases, each of them in very odd circumstances, and no actual judicial review, so Umejima's chapter provides an excellent description of the legal framework for judicial review and the issues that are likely to be faced. Of note, some lower courts in non-trade remedy cases admitted the applicability of international treaties, under Article 98.2 of Japan's Constitution (translated as ‘treaties concluded by Japan and established laws of nations shall be faithfully observed’).

To date, Malaysia has had ten antidumping cases, no countervailing cases, and only one safeguard. There have been two appeals so far, both from antidumping cases. The High Court elected not to publish its findings, and the cases cannot be cited as legal precedent, so Sim's chapter is, in consequence, somewhat short.

New Zealand has perhaps the second oldest antidumping law (1905, to protect domestic and British manufacturers of agricultural implements from US producers, and more general legislation in 1921). Judicial review is by normal review of administrative decisions at the High Court, while the rather unique Office of the Ombudsmen provides an administrative procedure for review. New Zealand is dualist, so courts will give precedence to domestic statutes over treaties. In addition, as McPhail points out, judicial review in New Zealand does not address the merits, but rather the process by which its decision was made with the possibility of an ‘unreasonable’ decision begin rejected. Since 1995, only two applications for review have been logged at the High Court, and both have been terminated short of the decision, while the Ombudsmen considered one case.

The chapter on Thailand by Sutham, Kalawantavanich, and Vachatimanont provides a very useful description of the administrative procedures and rules for judicial review by the Administrative Court and some by the Central Intellectual Property and International Trade Court. The latter is permitted to take into consideration WTO provisions and has done so in at least one case. But the authors state that the Tribunal cannot rely on WTO jurisprudence though it has referred to it in rulings. The two cases so far have taken less than a year each, which is quite fast. The authors suggest further training of the judges in WTO law and in general and in trade remedy law in particular.

Yilmaz's Conclusion ably summarizes the combined findings of the authors and focuses on the issue of deference to the authorities in trade remedy cases. The authors of the Canadian and EU chapters link the high degree of deference given the authorities to the standard of review in their systems, while the authors from developing countries link it more to judges' inadequate knowledge of trade remedies and the consequent hesitation to review the details of the decisions (which suggest a need for further training). Yilmaz also notes that a process that takes several years to complete, as is true in many countries, does not meet the requirement of Article 13 of the ADA and Article of the 23 of the ASCM that judicial review be ‘prompt’.