When it amended the anti-dumping law in 1979, the United States Congress expanded the right to judicial review of anti-dumping duty orders and the underlying determinations. Since then, more and more anti-dumping investigations have ended in litigation.

As a practical matter, judicial review is available at the end of the proceeding. The United States statute gives a clear and unambiguous right of appeal once the Commerce Department has issued an anti-dumping or countervailing duty order. Although there have been a few instances where parties have filed a court appeal earlier in the process, those instances are quite rare.

In particular, there is no right to appeal a preliminary determination by either agency. This fact surprises many foreign companies. Since the preliminary determination has a very real impact in the market, and triggers the beginning of legal liability, many companies wonder why they cannot appeal an unfavourable decision - particularly one in which the Commerce Department essentially admits to having made a mistake. The rule of law, however, is clear that such appeal is not allowed. The logic is that since the errors can be corrected in the final determination by the agency, there is no need to bother the courts.

Although the right to appeal anti-dumping and countervailing duty proceedings is clear, the right to appeal other trade remedies varies. Some remedies - such as Section 337 decisions - can also be appealed. But other remedies - such as Section 201 safeguard actions and Section 301 market access actions - do not have a clear right to appeal. In these instances the degree of Presidential involvement is larger, and Congress has decided to limit the degree of judicial review of the President's policy decisions. Depending on the particular circumstances in a case, there may be some legal theory for bringing the issue to court. (For example, there has been at least one judicial challenge to a safeguard remedy.) Bringing such a case to court, however, will be a real challenge, and a foreign company should not assume it will have any right of judicial review.

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