In preparing its defence of the final injury investigation, the foreign company must consider a number of issues. Some of these issues relate to issues already considered during the preliminary injury investigation. Other issues are new, and must be considered for the first time during the final injury investigation.

 

The most important general consideration at the final stage is the importance of having lawyers who immerse themselves in the facts of the industry, and learn enough about the competitive dynamics to present an effective defence. Final injury investigations can often be won if the lawyers take the time to learn the industry, and take the time to present the case properly. If the lawyers promise to do the case for a very low price, they are really saying that they are not willing to spend the time necessary to do the case properly.

 

Reconsidering the defence team

 

In most cases, the foreign company retains the same defence team throughout the anti-dumping investigation. The company need not do so, however. If the company has doubts about the ability of the lawyers or economists involved, it should consider replacing those advisers.

 

Involving new advisers is not very difficult for the final injury investigation. As a practical matter, it is difficult to replace advisers during the Commerce Department investigation. It would be extremely difficult for a new adviser to learn the background of the case in the short time available. The final injury investigation, however, is different. The preliminary injury investigation takes place so quickly that it generates only a limited amount of information that a new adviser would need to review. Moreover, there is a relatively long period of time for the final injury investigation, a period during which the new adviser can review the background material and catch up.

 

The most common change is for companies to involve new economists. Sometimes these economists join the other economists already on the defence team. Sometimes the new economists replace those used earlier. These changes take place principally because as the lawyers learn more about the case, they better understand what type of expert witnesses are necessary. In particular, the preliminary decision of the Commission often suggests critical areas that will be explored in more detail during the final investigation. The lawyers try to identify those experts who can best address these critical areas.

 

Redefining the product or the industry

 

As noted in chapter 13, the preliminary injury investigation devotes considerable time to deciding the scope of the investigation - the products under investigation (the 'like products') and the domestic industry to be evaluated. In many cases, the parties do not challenge the decisions made in the preliminary injury determination concerning these issues. The scope of the investigation remains the same.

 

In some cases, however, the parties may try to redefine the scope of the investigation. Sometimes the Commission invites such reconsideration in the preliminary injury determination, by asking the parties specifically to address certain issues in the final injury investigation. If a foreign company thinks there is some benefit to redefining the scope of the investigation, the company and its lawyers should pursue this issue.

 

It is important to alert the Commission to such issues as soon as possible. The best time to raise such issues is during the preliminary injury investigation. If the issues do not arise until after the preliminary investigation, it is crucial that the lawyers alert the Commission staff to the issue that the company wishes to raise in the final injury investigation. Once the Commission staff drafts the questionnaires and begins to receive responses, it is often too late to collect additional information. If the Commission does not collect the information needed to consider the foreign company's argument, the argument will almost certainly fail.

 

The company should distinguish arguments that seek to expand the scope of the investigation from those that narrow the investigation. It is usually easy for the Commission to exclude certain data that it has collected. If the company wants to expand the scope of the investigation - for example, to include aluminium car wheels in addition to steel car wheels - the company must alert the Commission staff so that it can collect the relevant information.

 

Commenting on the questionnaire

 

It is possible to comment on drafts of the questionnaire that the Commission intends to use in the final injury investigation. Since the time allowed for the final injury investigation is more generous (the Commission staff works separately while the Commerce Department is busy with its own work), the Commission can be more careful and deliberate in its final injury investigation. The staff provides a copy of the draft questionnaire to both the domestic industry and the foreign industry, usually through the lawyers for each group. The staff is generally open to constructive suggestions from each side.

 

By commenting on the draft questionnaire, the foreign company can often improve it significantly. The comments can help eliminate any confusion or ambiguity in the questions posed by the Commission staff. Such clarification. can make responding to the questionnaire much easier. The company can also sometimes expand the scope of the information the Commission collects. As noted above, gathering additional information can often be critical to proving an argument that the foreign company wishes to make later in the investigation.

 

Checking petitioner's information

 

The Commission now releases confidential business information submitted by the petitioner and other parties under certain circumstances. Counsel must sign an application for an administrative protective order (APO), promising not to disclose the information to any other parties, not even to the lawyer's client. The penalties for disclosure are severe. Note that the Commission releases this information only to the foreign company's outside counsel, or a consultant or expert hired to assist that counsel. The staff and managers of the foreign company cannot receive the information. An in-house lawyer for the foreign company (or its United States subsidiary) may or may not be allowed access under APO, depending on the nature of the lawyer's position and responsibilities. Basically, lawyers involved in business decisions, and not focusing on narrower legal issues, are not permitted access under APO.

 

The information disclosed includes the responses to detailed questionnaires that the Commission sends to petitioners and other parties. These contain, together with the various briefs filed, the economic and financial data upon which the petitioner's injury argument is based. The lawyers can scrutinize this information, test the arguments made in the petitioner's briefs, and offer counter-arguments.

 

Although this access to confidential information is available at both the preliminary and final stages, its importance at the final stage is much greater. The time allowed for a preliminary investigation is so short that the foreign respondents are too rushed to be able to make the most effective use of the APO access. In the final stage, in contrast, there is much more time and a much more meaningful opportunity to test the information being submitted by the other side. That information can be tested for both internal consistency (whether the various domestic companies provide consistent data about the market and their financial accounting systems) and external consistency with other data about the industry in question. In some instances, there is a wealth of public data about the companies and industry in question, and this data can be used to challenge what the domestic industry is reporting to the Commission.

 

Working closely with economic consultants

 

Economic consultants play a particularly important role in Commission final injury determinations. As economic analysis assumes a more prominent role in the analysis performed by the Commission, the role of the economists will increase. Economists sometimes become involved in the preliminary injury investigation, but often there is insufficient time to undertake any serious economic analysis. This problem affects both the Commission staff economists and any outside experts hired by companies involved in the investigation. It is therefore much more common for the economists to become involved in the final injury investigation.

 

Economists provide two kinds of analysis in injury investigations. First, they provide descriptive analysis - they help collect information that describes the United States market and the role that imports play in the market. Second, they provide analytic analysis - they explain why the United States market behaves a certain way, and how the imports interact in the market. The Commission staff economists sometimes use formal economic models to analyse the United States market and the effect of imports. The economists hired by foreign companies often give comments to the Commission staff on the use of these economic models. With these analyses, the economists help develop arguments for the lawyers to present to the Commission.

 

The most effective approach is for the lawyers and economists to work together closely when developing legal and economic arguments. Doing so is not always easy, however. Lawyers and economists each use a specialized jargon unique to their profession. Experienced lawyers and economists often learn the jargon of the other (in fact, some lawyers have earned advanced degrees in economics), but not everyone has such 'bilingual' skills.

Overall coordination among companies

 

If the investigation involves many parties and complex issues, overall coordination becomes essential. Since cumulation became mandatory under United States law, domestic industries have usually filed anti-dumping complaints against many foreign industries at the same time. The injury investigation therefore may involve not just several foreign companies, but foreign companies from many different countries. In complex cases, it is not usual for 20-30 companies from numerous different countries to be involved.

 

There are several approaches to solving this coordination problem. When there are many smaller companies in the foreign industry, it is common for the industry as a whole to hire a single lawyer and share the cost. Each foreign industry is thus represented by a single counsel, and the number of advisers becomes more manageable.

 

In some foreign countries, it is common for each company (especially the larger multinationals) to want its own lawyer. A foreign industry involved in an anti-dumping investigation therefore may have several lawyers speaking for it. In some cases, the individual companies have somewhat different interests, so the industry does not have a single voice.

 

Sometimes the industry (usually through an industry association) will hire its own lawyer to serve in the role of coordinating counsel. The coordinating counsel sometimes helps to create a more unified position on the part of the industry.

 

Even if companies have somewhat different views about the best approach for the defence, they should try very hard to reach a unified position. A unified position, usually reflected in a joint brief filed by all the companies, is more persuasive to the Commission. As a practical matter, the Commissioners and staff will have more difficulty reading four 100-page briefs than a single 150-page brief. Moreover, if companies prepare independent arguments, they risk taking inconsistent positions that will undermine each other's arguments.

 

If the industry does not have a single counsel, or someone serving as the coordinating counsel on behalf of the industry, the various foreign companies should try to appoint one of the individual company's lawyers to serve as an unofficial coordinating counsel. Often the lawyer for the company with the largest import volume assumes this role. How the lawyer is chosen does not matter very much. It is crucial, however, that someone coordinate the efforts of the industry.

 

Source: Business Guide to Trade Remedies in the United States: Anti-dumping, countervailing and safeguards legislation practices and procedures