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November 17, 2008 

Supreme Court Hears Oral Argument in Antidumping Cases

As we reported, the U.S. Supreme Court recently heard oral arguments in the first ever antidumping cases granted certiorari. The consolidated cases, United States v. Eurodif S.A., et al. (Docket No. 07-1059) and USEC, Inc., v. Eurodif S.A., Docket No. (Docket No. 07-1078), involve appeals arising from an antidumping petition filed in December 2000 on imports of low enriched uranium from various countries, including France.

While I was not able to attend the oral argument on November 4th, the transcript from the oral argument can be found here on the Supreme Court's website and a good recap of the oral argument can be found here on the SCOTUS blog.

As expected, the Justices focused their questions to counsel on whether the uranium that was enriched outside of the United States under separative work contracts results in merchandise being sold in the United States. The Justices posed a number of hypotheticals in an effort to establish the line between the sale of a good and the sale of a service. The justices also explored the extent of deference the Court should give to the Commerce Department under the test established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

The SCOTUS blog noted that "because the bench was not particularly active, it is difficult to predict the outcome of the case with any certainty. However, given the Court’s focus during the petitioners’ arguments on how the test would apply more broadly, compared with their skepticism that a contrary interpretation would elevate formality over substance, it seems like that the U.S. and USEC will prevail."

I agree that this is a very close case since there are excellent arguments on both sides. However, I think that the Supreme Court will ultimately side with the U.S. Court of International Trade and the Court of Appeals for the Federal Circuit and find that the contracts for the enrichment of uranium entered into by U.S. buyers were contracts for services, rather than for the sale of goods, and therefore not subject to the U.S. antidumping laws.

The Supreme Court should issue its opinion in this case in the spring of 2009.

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