Client Services / Global Trade & Cross Border Strategies

Global Trade & Cross Border Strategies

Our Firm offers a comprehensive global trade law practice, with experience in representing and counseling clients in a full range of transnational matters.  Our lawyers and non-attorney professionals have extensive experience, both in U.S. Government Service and in private practice, handling all aspects of international trade law and related litigation for U.S. and foreign industries and government.  Most members of the group have devoted their entire careers to this practice area.

Global Trade Organizations & Agreements

We have extensive experience involving the substantive and procedural elements of various international trade organizations and agreements.  Our lawyers have counseled U.S. and foreign industries and governments on trade matters before the World Trade Organization (WTO) and its predecessor, the General Agreement on Tariffs and Trade (GATT).  We have represented clients' interests in numerous proceedings before GATT and WTO Dispute Settlement Panels, including acting as lead counsel in the dispute over Europe's banana import regime, dubbed “the trade case of the decade.”  The Firm also has represented clients’ interests on numerous matters involving bilateral and regional trade agreements, including the North American Free Trade Agreement (NAFTA), the African Growth and Opportunity Act and the U.S.-Chile Free Trade Agreement, the U.S.-Australia Free Trade Agreement, the U.S.-Korea Free Trade Agreement, the U.S.-Central America-Dominican Republic Free Trade Agreement, and negotiations on the Free Trade Area of the Americas.  Our Firm has counseled on numerous negotiated international agreements, such as the U.S.-Japan Arrangement for Trade in Semiconductors, the U.S.-EC Canned Fruit Accord and the U.S.-EU Understanding on Bananas and in U.S. trade programs, including the Generalized System of Preferences

Foreign Trade Rights Enforcement Proceedings

“Section 301” gives the U.S. Trade Representative and the President broad discretionary power to retaliate against foreign interests if an international agreement is violated or an act unfairly burdens or restricts U.S. commerce.  Section 301 cases often result in claims being pursued by the U.S. Government in the World Trade Organization against the allegedly offending government or governments.  We have represented numerous clients, based in the U.S. and many other countries, in Section 301 cases, as well as in resulting disputes brought to the World Trade Organization.

Import Relief Proceedings

Administrative proceedings involving import trade relief have a significant impact on the U.S. economy and on individual companies.  McDermott Will & Emery lawyers have represented foreign producers and exporters, U.S. importers, and U.S. domestic industries in these proceedings.   We have assisted clients with importing and exporting interests and concerns relating to Brazil, Canada, China, Colombia, Ecuador, the European Union and individual EU Member States, Japan, Korea, Mexico, Poland, Russia, Singapore, Sweden, Switzerland, Taiwan and others.  Cases in which our professionals have had primary responsibility have involved many diverse products, including:

  • Fibers
  • Fresh and processed agricultural goods and other foods
  • Electronics, including semiconductors and consumer electronics
  • Telecommunications
  • Steel
  • Chemicals
  • Automotive products

The Firm has provided advice and counseling on trade law compliance measures and evaluation of client positions.  We have represented parties in proceedings before federal agencies responsible for administering U.S. trade laws, including the Departments of Commerce, State, Treasury, Agriculture, Homeland Security, and Justice; the International Trade Commission; the Federal Trade Commission; and the Office of the U.S. Trade Representative.  Our lawyers have prepared and presented testimony, questionnaire responses, briefs and written comments in administrative trade proceedings.  We have also represented litigants in judicial appeals from agency action in the Court of International Trade, the Court of Appeals for the Federal Circuit, and other federal courts.

Antidumping Proceedings
A U.S. domestic industry may, through administrative proceedings, seek government imposition of special duties on imports allegedly “dumped” (i.e., sold at less than fair value) in the United States with resulting or threatened material injury to the U.S. industry.  Our Firm has represented domestic and foreign interests in antidumping cases before the two administering agencies, the Commerce Department and the International Trade Commission, as well as in appeals before the Court of International Trade and the Court of Appeals for the Federal Circuit.  Our International Trade Practice professionals have also counseled clients in a wide range of industries on both the legal and practical issues relating to instituting a case and in preventative planning relating to compliance with the U.S. antidumping law.

China Market Disruption Proceedings
A U.S. domestic industry may petition the International Trade Commission under “Section 421” to recommend safeguard relief from “market disruption” caused by Chinese imports.   Following an affirmative determination of market disruption by the Commission, the President may impose relief in the form of increased duties or other import restrictions with respect to the specific product, to the extent and for as long as the President considers necessary.  We have successfully defended key Chinese exporting industries in these cases, including the first Section 421 proceeding, on pedestal actuators, and the most recent, on innersprings.

Countervailing Duty Proceedings
A U.S. domestic industry may also seek special “countervailing” duties on imports to offset certain subsidies by foreign governments.  Our International Trade Practice has worked on numerous countervailing duty cases, representing a variety of industries and governments.  “CVD” cases, like antidumping cases, are administered by the Commerce Department and International Trade Commission.

Safeguards Proceedings
A U.S. domestic industry may petition the International Trade Commission under “Section 201” to recommend special relief against imports whose increasing volume is found to be a significant cause of serious injury to the U.S. industry.  If the Commission recommends such relief and the President agrees, temporary relief may be granted to the U.S. industry even against fairly traded imports.  Relief may be provided in the form of a quota, an increased duty, and/or expedited adjustment assistance for those adversely affected.  We have represented clients in these industry-wide investigations on such products as motorcycles, footwear and steel.

Unfair Import Practices - Intellectual Property
Businesses believing that imports violate their patent, trademark, copyright, trade secret or other intellectual property rights may look to “Section 337” for relief.  Under this provision, the International Trade Commission may prohibit importation if there is an injurious intellectual property infringement.  McDermott Will & Emery's International Trade Practice together with our Intellectual Property Department has represented numerous clients in a wide range of industries in patent infringement cases under Section 337.

Customs

McDermott Will & Emery has a comprehensive customs practice.  The Firm advises on customs issues for numerous U.S. importers and foreign exporters, representing a broad array of industries and products, including:  consumer and industrial electronics; machinery; motor vehicles; steel products; hand and power tools; chemicals; textiles, including fabrics and clothing; agricultural products, including bulk commodities, fresh produce and processed foods; bulk fuel shipments; pharmaceutical products; and others.

Our experience includes counseling clients and representation before the U.S. Bureau of Customs and Border Protection in matters involving:  classification; valuation; duty assessment, including preferential duty-treatment; country of origin marking; user fee assessment; bond and warehouse matters; drawback; quotas; regulatory restrictions on food, drugs, and other products; exclusion and seizure of merchandise; regulatory audits; and customs fraud allegations.  We have represented parties in Customs administrative enforcement actions.  We also have assisted clients in establishing customs compliance programs, in applying for Foreign Trade Zones and Customs Bonded Warehouses, and in filing drawback and other refund claims.

We have also worked on many customs-related matters involving NAFTA, the Generalized System of Preferences, the Caribbean Basin Initiative and the World Trade Organization.

Attorneys in our International Trade Practice Group are members of the Court of International Trade and the Federal Circuit Court of Appeals, and have handled customs-related litigation matters in these and other federal courts.

Export Controls & Sanctions

U.S. export control requirements and sanctions policies affect U.S. companies, their foreign branches, subsidiaries and foreign licensees, as well as purchasers of U.S. goods and technology.  McDermott Will & Emery regularly advises and represents U.S. and foreign companies and their subsidiaries in sanctions and export control matters.  The firm also assists clients with their export financing arrangements.

U.S. Trade Sanctions Programs
The U.S. government currently enforces trade sanctions and embargoes against targeted countries (e.g., Cuba, Iran and Sudan), entities and individuals (e.g., specially designated global terrorists and narcotics traffickers).  Our Firm advises U.S. and foreign clients as to the applicability of these sanctions programs to their domestic and international business transactions and practices.  We represent clients before the administering agency—the Office of Foreign Assets Control in the U.S. Treasury Department—and assist with the OFAC licensing process.

Classification & Licensing
Exports of goods and technical data from the United States may be subject to a variety of licensing and/or notification requirements.  McDermott Will & Emery routinely assists clients in determining the proper classification of goods and technology, determining whether an export license is required and applying for any required licenses.  Commodities and technical data may be classified as “dual use” items, in which case the exportation is subject to the jurisdiction of the Commerce Department’s Bureau of Industry and Security.  Items that are covered by the “Munitions List,” on the other hand, fall under the jurisdiction of the U.S. State Department.  We assist clients with every element of the administrative export controls process.

Antiboycott Compliance
The antiboycott provisions of the Export Administration Act preclude U.S. businesses from cooperating with boycotts imposed by foreign governments against countries friendly to the United States.  The Firm has advised numerous clients with exporting interests in the Middle East and elsewhere regarding the scope of permissible contract language, commercial assurances, certificates of origin and other requirements imposed by foreign governments and companies relating to prohibited boycotts.

USA PATRIOT Act
Enacted in the wake of the 9/11 terrorist attacks, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 strengthened U.S. anti-money laundering laws and enhanced U.S. surveillance and information-sharing capabilities.  We advise U.S. and foreign clients as to how their international financial operations and business practices are affected by the USA PATRIOT Act.

Sanctions & Export Control Enforcement Proceedings
The Trading with the Enemy Act, International Emergency Economic Powers Act, the Export Administration Act and other federal laws impose significant criminal and civil penalties for violations of U.S. sanctions policies and export controls.  McDermott Will & Emery has actively represented numerous clients before the Office of Foreign Assets Control, Office of Antiboycott Compliance, Office of Export Enforcement, the U.S. Justice Department, the U.S. Bureau of Customs and Border Protection, the Internal Revenue Service and other enforcement authorities regarding export control issues.

Compliance Programs
The Firm assists clients in developing sanctions, export compliance, and anti-money laundering programs to meet the ever-changing needs and requirements of U.S. laws and regulations.

Foreign Corrupt Practices Act

McDermott Will & Emery lawyers have a wide range of experience regarding the U.S. Foreign Corrupt Practices Act (FCPA).  We have advised a number of clients regarding compliance with the FCPA, both respecting its anti-bribery provisions, which are applicable to all U.S. persons and administered and enforced by the U.S. Justice Department, and its record-keeping and accounting provisions, which are applicable to public companies and administered and enforced by the Securities and Exchange Commission.  We have prepared corporate FCPA compliance programs and counseled clients on FCPA applications to specific transactions.  We have also defended clients in FCPA investigations and actions.  A number of our lawyers were previously government attorneys who were responsible for investigating and regulating FCPA issues.

Contacts

McDermott Will & Emery

McDermott Will and Emery