This morning the Federal Circuit issued a precedential opinion in a trade case appealed from the Court of International Trade. The lower court applied an adverse inference against an importer regarding subsidies it had received due to the government of China’s lack of cooperation in the Department of Commerce’s investigation of the imported goods. The Federal Circuit’s opinion affirms the lower court’s application of the adverse inference. Here is the introduction to the opinion.  

Canadian Solar, Inc. v. United States (Precedential)

Appellants Canadian Solar, Inc. et al. (collectively, Canadian Solar) are producers and exporters of certain crystalline silicon photovoltaic cells. These photovoltaic cells were imported into the United States from the People’s Republic of China, and the United States Department of Commerce (Commerce), after an investigation, issued an order imposing a duty to counteract subsidies Canadian Solar received from the government of China.

During its fourth administrative review of that countervailing duty order, Commerce determined on remand that Canadian Solar received regionally specific electricity subsidies subject to countervailing duties under 19 U.S.C. § 1677(5A)(D)(iv). Final Results of Redetermination Pursuant to Court Remand at 14–19, Canadian Solar Inc. v. United States, No. 18-00184 (Ct. Int’l Trade June 26, 2020), ECF No. 95-1 (Remand Redetermination). To reach this conclusion, Commerce identified electricity price variation across the different provinces and applied adverse facts available—due to the central government of China’s failure to cooperate in Commerce’s investigation—to conclude that the central government sets variable electricity pricing that is region-specific for development purposes. See id. at 19. The Court of International Trade (CIT) sustained Commerce’s Remand Redetermination. Canadian Solar Inc. v. United States, No. 18-00184, slip op. 20-149, 2020 WL 6129754 (Ct. Int’l Trade Oct. 19, 2020) (Canadian Solar II). For the reasons stated herein, we affirm.