Research Trends and Conclusions: Trade & Customs 2009

Heather Brown - Who's Who Legal

These are interesting times for trade and customs lawyers. The travails in the worldwide economy have taken their toll on international trade, and new pressures are leading countries to see trade and customs regulation as a way to alleviate domestic economic concerns.

Clients are becoming ever more demanding and budgets have tightened, but against the backdrop of decreased exports the work the lawyers in this book are being called on to do is becoming increasingly varied. While differences between domestic regimes make the identification of uniform trends difficult, a number of key global issues emerged from our research.

Traditional areas of work such as import licensing and classification of goods have remained steady, as well as ongoing regulatory work in relation to bodies such as the European Union and the World Trade Organization. In addition, recent months have seen increased levels of legislative and regulatory activity, causing clients to seek counsel on the new rules.


In an economic crisis the spectre of protectionism can easily appear as countries look to safeguard their own interest. A rise in trade-restricting actions has been reported by a number of sources in recent months, including the WTO. A “Buy American” clause was included in the United States’ stimulus package – its response to the downturn – and other countries are also becoming increasingly protectionist, either by express provisions or less obvious means. Previous recessions saw a related growth in trade remedy litigation, but opinion is divided among the practitioners we canvassed as to whether a similar increase has yet materialised.

The WTO also noted an increase in trade barriers, with 83 new measures undertaken by 24 countries and the European Union between April and July 2009 – more than double the number of trade-liberalising measures enacted during the same period, despite calls from the G20 summit to encourage greater free trade. Todd Friedbacher from Sidley Austin in Geneva said, “In the past year we have seen an incredible increase in protectionist measures, with governments becoming more creative when drawing up domestic regulations.” Litigation between WTO member countries is increasingly used to counteract the trend, and discussions are in place at the WTO to negotiate a new generation of rules to do the same.

Figures from the WTO suggest the beginnings of an upsurge in anti-dumping activity in 2008. The year saw 208 initiations of new anti-dumping investigations, the highest number since 2004 and a substantial increase on the 163 commenced the year before. For the period July – December 2008, India was by far the highest reporting member with 42 initiations, followed by Brazil reporting 16 and China 11.

China was in turn the most frequent subject of the new investigations, and is the subject of a multi-billion dollar anti-dumping case filed in April 2009 by representatives of the US steel industry. In the words of one source: “A lot of industries are feeling threatened by the presence of cheap Chinese exports and fluctuating currency does not help to reassure them.”

Craig Lewis from Hogan & Hartson LLP, says: “The decision in 2007 to apply countervailing duty law to China opened up a potential new stream of work for lawyers worldwide,” and firms are looking to expand their capabilities and international links in this direction.

Lawyers we spoke to are still expecting to see all types of trade litigation pick up, and not just in cases involving China. Anti-dumping disputes in particular have been relatively quiet but are expected to increase.


Trade regulation is used by governments to achieve their aims in areas ranging from supporting the domestic economy to limiting greenhouse gases. In March 2009 the United States federal governmentfully implemented country of origin legislation that requires a wide range of food products entering the US to be labelled with information regarding its derivation. Agriculture secretary Tom Vilsack vowed that “the Department of Agriculture will be closely reviewing industry compliance” and our sources admitted to concerns regarding the threat to fair trade and the possibility of favouritism towards domestic suppliers.

In recent years there has been an identifiable shift in the geographical origins of international trade work, forcing law firms to adapt their strategies to stay competitive. ‘Third country’ trade remedy cases are increasingly common as local awareness of trade remedy instruments grows. Law firms are seeing the culmination of a long-term rise in business opportunities from countries such as India, Brazil and China that can produce a greater workload than ‘developed’ countries. This necessitates a change in the focus for firms. While the ability to navigate the complexity of trade laws and regulation remains a given, local knowledge in a range of jurisdictions and political skill and connections are becoming ever more valuable to clients.


This shift in emphasis calls into question how lawyers and firms can best serve their clients. The leading individuals in our research hail from firms that range in size from the smallest boutique to large international firms, and each type of firm has its advantages.

While boutiques are traditionally free of conflict issues that can bedevil their larger counterparts, such specialisation in a single area of law has left firms in other practice areas struggling when levels of work drop off in the face of a global downturn.

Some claim that boutiques are often successful as they can offer lower prices than their counterparts, and it is often the case that the leading boutique firms are based around lawyers with vast experience in the business. A pattern of leading individuals leaving international firms to set up on their own can be discerned – Gary Horlick, the leading lawyer in the research overall, recently left WilmerHale to set up his own firm; Michael Schütte left Howrey LLP to do likewise.

The localised nature of many trade disputes mean that a standardised practice is impractical and even by the standards of international commercial law an exceptional level of experience and local connections are often required. This worldwide perspective is impossible to generate in a single office, so international firms must cultivate correspondingly high levels of expertise across their offices worldwide while boutiques must look to networks of colleagues and other firms in other countries.


Experts in trade and customs law are not as numerous as their equivalents in other practice areas, but they are subject to many of the same pressures. The economic downturn has seen the traditional tightening of clients’ belts, and it has also led to new regulations and rule interpretations that their clients must be advised on. In addition, an area that necessarily requires cross-border expertise is becoming even more international in scope as counsel is sought, and business opportunities emerge, from countries in the developing world. This shifting marketplace is forcing lawyers to adapt their practices and in some cases change their firms to continue to offer the highest levels of service to their clients.

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