International Trade

In a nutshell

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The work of international trade lawyers is split between two main areas: the application of domestic law to international trade, and treaty-based international law governing trade flows. On the domestic side, work covers export controls, embargoes and economic sanctions, import relief actions such as antidumping, countervailing duties and safeguards, as well as customs classifications, valuation and rules of origin matters. In relation to international treaties, attorneys advise on World Trade Organization (WTO) rules, preferential trade regimes such as the North American Free Trade Agreement (NAFTA) and bilateral investment treaties (BITs).

Lawyers advise on the implementation of these domestic and international rules, and counsel clients in disputes related to their violation. Clients include US organizations doing business in foreign jurisdictions and foreign businesses operating in the USA; they include major corporations, trade associations and national and regional governments.

What international trade lawyers do

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Domestic

  • Lawyers represent clients before the International Trade Commission (ITC) and the Department of Commerce (DOC), the two main bodies that review petitions related to import laws. They are the first port of call for disputes and protests related to issues such as dumping, countervailing duties and safeguards.
  • The first port of call for protests over customs classifications, valuation and rules of origin matters is US Customs and Border Protection (CBP).
  • Lawyers assist US companies to secure a license from the DOC for the export of 'dual use' goods (with both military and commercial applications), or from the Department of State for the shipment of military goods.
  • They also assist clients before the Treasury Department’s Office of Foreign Assets Control, which administers and enforces economic and trade sanctions against targeted foreign countries, terrorism-sponsoring organizations and international narcotics traffickers.
  • Parties can protest determinations made by the ITC, the DOC and CBP at the Court of International Trade. This court also hears protests against trade-related worker assistance decisions made by the Departments of Labor and Agriculture.
  • Antidumping duties are imposed on imports to combat ‘dumping’– selling a product in an export market at a price less than its home market value, which injures a domestic industry.
  • Countervailing duties are similar to antidumping duties, but are imposed by a country to counter the effects of subsidies in foreign markets.
  • Safeguards are ‘emergency’ measures in response to an unforeseen increase in imports which damages or threatens to damage a specific domestic industry. Unlike ‘unfair’ activities like subsidies and dumping, increased shipments by themselves are not deemed to be unfair, so safeguards must be applied in a non-discriminatory fashion.
  • Section 337 of the Tariff Act of 1930 provides an alternative to US court actions to challenge imports that infringe patents or other intellectual property rights. These cases are dealt with by administrative law judges in the ITC.
  • Lawyers also assist companies involved in an acquisition of a US target under review by the Committee on Foreign Investment in the United States (CFIUS). Established in 1975, CFIUS (pronounced ‘sifius’) is tasked with reviewing the national security implications of investment in US assets.

International 

  • On the treaty side, trade lawyers practice “global regulatory law,” according to Andy Shoyer, partner and chair of Sidley Austin’s international trade and dispute resolution practice.
  • Disputes are the largest source of work. The WTO is the main international arbitrator of trade disputes. Its Dispute Settlement Body makes rulings on agreements made between member states under WTO negotiations. Only sovereign states can bring disputes to the WTO so lawyers for private stakeholders will be involved in lobbying governments to bring cases or assisting in defending them.
  • Neither the US government nor the EU hires outside counsel to represent them in front of the WTO, so US attorneys often find themselves representing other nations, such as Brazil.
  • Disputes relating to BITs are heard in arbitral tribunals administered by the International Centre for Settlement of Investment Disputes (ICSID), an arm of The World Bank, or similar arbitration centers.
  • Treaty-focused attorneys will also engage in lobbying to influence the development of new international rules. “We listen to what companies tell us about the regulatory barriers they face and translate that into potential treaty language. Then we will help businesses affect the negotiations within the US and internationally,” Andy Shoyer explains.

Realities of the job

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  • International trade work is often closely tied to headline-making current events, and associates grapple with key policy as well as legal issues.
  • One associate who works in an international trade department told us: “I had focused on international studies throughout college and demonstrated an interest in international trade.”
  • “Unlike domestic litigation we don’t have substantial document production and discovery work in WTO or other treaty disputes,” Shoyer informs us. “That saves junior associates from some of the drudge work. But that doesn’t mean that lawyers don’t have to get on top of the facts! Arbitrations can involve hundreds of pages of documents and younger associates will get involved in that.”
  • “International trade practices with a significant policy focus tend to be partner-heavy because clients demand high-profile advice,” Shoyer explains. “It’s hard to generate the knowledge base required just by reading the case law: you need to have the experience. You build up your knowledge base slower.”
  • Trade lawyers need to be politically aware and keep track of negotiations at the WTO and other multilateral, regional and bilateral regimes.

Current issues

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  • The heightened threat of terrorism in the last decade has brought with it an increased focus on national security in the trade arena. There’s been a greater focus on container and port security. CFIUS has been increasing its scrutiny of foreign investment in US assets, for national security reasons.
  • As export controls and economic sanctions also fall under the remit of international trade law, it pays to keep abreast of international diplomatic developments. For example, in 2010/11 lawyers have been closely watching developments in Côte d'Ivoire and Libya.
  • The federal government is currently reviewing the controls on dual-use technology. This may have a drastic impact on the trading of such goods.
  • The open and borderless nature of international trade law practice means that US lawyers in this arena face increasing competition from lawyers overseas, especially in some of the BRICs – Brazil, Russia, India and China.
  • The Obama administration has announced it will be reorganizing the various federal trade agencies. It is not yet known if or how this will pan out. One of the suggestions at the moment is that several smaller trade agencies will be folded into the Department of Commerce.

What top international trade lawyers say

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Andy Shoyer, partner and chair of the international trade and dispute resolution practice, Sidley Austin

“What I see in myself and others in this practice is that there is a strong commitment to public service. At some point in their career many people go off to a national government position. It’s not a smooth transition here from baby associate to partner. In order to command the authority to generate business you often need that government credential.”

“Knowledge of one or more foreign languages – say Spanish or Chinese – is a plus in this practice. And it’s hard to start out without some sensitivity to what the government does. We will often look for someone who has demonstrated at least an interest by means of an internship at the State Department, the Department of Commerce or Office of the United States Trade Representative, or who has studied or worked abroad.”

“Problems often need to be addressed in the broader policy context. People who are really successful in this practice are those who appreciate the cross-cultural and historical context of a trade deal.”