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Jay Smith is of counsel in the Washington office. He joined the firm after several years as a professor of political science and international affairs, during which he specialized in international trade policy and international dispute settlement. His practice in the International and Litigation groups draws on this academic and policy experience.

He is currently helping clients develop and implement strategies with regard to the Trump Administration’s recent trade actions, including pursuing country exemptions and product exclusions to the recent steel and aluminum tariffs imposed under Section 232, and product exclusions to the proposed Section 301 tariffs.

On July 1, 2022, the U.S. Department of Commerce (“Commerce”) issued proposed rules implementing President Biden’s emergency declaration to provide temporary tariff relief on certain imports of solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam.[1] Commerce has provided the public with a 30-day period to comment on the proposed rules.

If enacted in their current form, the proposed rules would provide meaningful relief and increased tariff certainty to U.S. importers of solar cells and modules from these four Southeast Asian countries.  Specifically, under the proposed rules, Commerce will not impose tariffs during the emergency period established by President Biden on imports of solar cells and modules from those countries even if the products are found to be circumventing an existing antidumping (“AD”) or countervailing duty (“CVD”) order.  The proposed rules do not affect tariffs on imports that are already within the scope of existing AD/CVD orders on solar cells and modules from mainland China or Taiwan, including in-scope modules that incorporate cells from mainland China or Taiwan but are assembled in a different country.

While the proposed rules would represent a positive development for foreign manufacturers, U.S. importers, and U.S. consumers, including the U.S. solar project development industry, if promulgated in their current form, changes to the rules are possible.  It is therefore important for parties with a stake in Commerce’s pending circumvention inquiries to file comments by the August 1, 2022 deadline. 

Continue Reading Commerce Invites Comments on Proposed Rules Implementing Presidential Emergency Declaration on Solar Tariffs 

Presidential Action Triggered by Crisis in the U.S. Solar Industry

In recent months, the U.S. solar industry has been in the midst of an existential crisis, triggered by the threatened imposition of retroactive and future tariffs on a significant portion of U.S. imports. That crisis began on April 1, 2022, when the Department of Commerce (“Commerce”) initiated an inquiry to determine whether solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam are circumventing antidumping (“AD”) and countervailing duty (“CVD”) orders on solar cells from China. Solar cells from these countries generally accounted for approximately 80% of U.S. solar module imports in 2020.[1] If Commerce finds circumvention, solar cells and modules from the four target countries could not only be subject to combined AD/CVD tariffs approaching 250%, but Commerce’s regulations also allow for the agency to apply these tariffs retroactively to merchandise entering on or after April 1, 2022 (and potentially as far back as November 4, 2021). This threat of AD/CVD tariffs triggered a steep decrease in imports of solar cells and modules from Southeast Asia, and caused parts of the U.S. solar industry to come to a stand-still, furthering domestic reliance on coal.[2] Given this paralysis in the solar industry, lawmakers and others urged the President to provide relief from potential AD/CVD tariffs.[3]

Continue Reading President Acts to Prevent Import Tariffs on Solar Cells and Modules from Southeast Asia

Project development agreements with states and state-owned enterprises (SOEs) are often governed by the law of the host country (sometimes with freezing, stabilization, or other limiting clauses), while also being subject to arbitration seated in a neutral venue.  The assumption is that the courts of the neutral venue will have exclusive jurisdiction to supervise the arbitration and confirm, or set aside, any arbitral award.

A decision issued last week by the U.S. Court of Appeals for the D.C. Circuit in P&ID v. Nigeria puts that assumption in doubt by suggesting that an award can also be set aside by the courts of the state whose substantive law applies to the merits of the dispute.  Together with recent judgments in other jurisdictions, the decision underscores the importance for investors of:  (i) resisting selection of the host state’s substantive law where possible; and (ii) particularly where that is not possible, including express language confirming the parties’ agreement that, notwithstanding the choice of the host state’s law to govern interpretation of the contract, the arbitration process will be governed by the law of the arbitral seat.
Continue Reading D.C. Circuit Decision Underscores Need for Careful Drafting of Choice of Law Clauses in Host Country Agreements