RELATIONSHIP OF WTO OBLIGATIONS TO U.S. INTERNATIONAL TRADE LAW: INTERNATIONALIST VISION MEETS DOMESTIC REALITY

Georgetown Journal of International Law, Fall 2006 by Reed, Patrick C

4.1 Use of WTO Agreements as Secondary Legislative History

In international trade litigation, Federal Mogul Corp. v. United States103 is the seminal Federal Circuit decision referring to and giving weight to international agreements as legal authority.104 The issue in Federal Mogul was whether the agency had acted permissibly by interpreting the antidumping statute to achieve a tax-neutral dumping margin (i.e. the dumping margin should not be affected if taxes are assessed on sales in the home market but not on sales for export to the United States). After quoting pertinent provisions of GATT 1947, the 1979 GATT Antidumping Code, and the 1994 WTO Antidumping Agreement, the court concluded that "[t] he GATT . . . seems to stand squarely behind the proposition that antidumping duties are not to take account of tax differences."105 The court therefore sustained the agency's position, citing the Charming Betsy canon and ruling that "absent express Congressional language to the contrary, statutes should not be interpreted to conflict with international obligations."106

Caterpillar Co. v. United States107 also illustrates the use of international agreements as secondary legislative history. There, the court made a detailed analysis of GATT and the 1979 GATT Valuation Code as an aid to determining congressional intent, together with other sources of legislative history and canons of statutory construction, in the 1979 implementing legislation for the Valuation Code. Based on these authorities, the court held that the Customs Service's interpretation was contrary to law.108 Caterpillar is noteworthy because the court rejected the agency's interpretation of the statute. Indeed, it appears to be the only instance in which a court found that an agency's interpretation was facially inconsistent with the text of a WTO or GATT agreement.

The Court of International Trade has sometimes remanded a case to the responsible agency for further explanation where it appeared that the agency's interpretation might be inconsistent with the text of a pertinent WTO agreement. For example, in Usinor v. United States,109 the court found that "it is still unclear whether [the statute and the WTO Antidumping Agreement] in fact may be read in harmony."110 The court remanded the case with instructions to the agency to consider whether its interpretation was consistent with agreement "as part of its overall duty to administer the antidumping laws in accordance with its international obligations," and, if consistent, to "discuss and explain how and why . . . ."111

The converse factual pattern-where the reviewing court is not persuaded by a litigant's argument that the agency's interpretation of the statute is contrary to the text of the international agreement-has occurred in several cases. In these cases, the court defers to the agency's interpretation of the statute under step two of Chevron analysis. The Court of International Trade has set a high standard for overruling the agency's interpretation, stating that it will sustain the agency's interpretation "unless the conflict between an international obligation and [the agency's] interpretation of a statute is abundantly clear. . . ."112 Thus, for example, where the court found that "the Agreement . . . does not clearly prohibit" the agency's interpretation, it sustained the agency's decision and ruled that "[w]hen faced with an ambiguous statute and ambiguous international agreement, the Court should defer to [the agency's] interpretation."113 cases in which the court does not find a clear conflict between the agency's interpretation and the WTO agreement have also addressed the issue discussed in Part 4.3 below of how the court treats WTO panel or Appellate Body decisions.114