International Trade and Commerce: Protecting Profits Across Borders

A customs authority that initiates an origin verification investigation can demand documentation proving that imported goods qualify for preferential tariff treatment, and FTA verification counsel must evaluate whether the company's bill of materials, production records, and supplier certifications are sufficient to demonstrate that the applicable tariff shift or regional value content criterion is satisfied.

A company that relies on a specific tariff rate or trade agreement preference for the economics of its cross-border business must monitor regulatory developments that could eliminate those benefits, and international trade law counsel advising on trade policy risk must evaluate whether proposed regulatory changes would affect the company's tariff exposure and whether the company should engage in the regulatory process before new restrictions take effect.

A company that exports goods, software, or technology with potential dual-use applications must determine whether its products are subject to the Export Administration Regulations, the ITAR, or other applicable frameworks, and export control law counsel designing a compliance program must evaluate whether the company's product classification determinations are accurate and whether its screening procedures effectively identify restricted end users and prohibited end uses.

A foreign acquisition of a US business or a transaction that gives a foreign person access to US critical technology, critical infrastructure, or sensitive personal data may be subject to mandatory or voluntary CFIUS review, and CFIUS and US national security counsel advising on a covered transaction must evaluate whether mandatory filing requirements apply and what mitigation measures could address the national security concerns CFIUS is likely to identify.

A customs authority that disagrees with an importer's tariff classification can issue a ruling that results in additional duties, interest, and penalties on past and future importations, and customs valuation counsel advising on a customs dispute must evaluate whether the importer's classification is supported by the Harmonized System Explanatory Notes and relevant CBP ruling letters and whether the dutiable value has been correctly determined under the applicable transaction value methodology.

An antidumping or countervailing duty investigation can result in duty rates that make continued importation economically unviable, and anti-dumping duty counsel defending a respondent must evaluate whether the dumping margin calculation correctly reflects the actual price differential between home and export market sales, and whether the injury determination is supported by evidence of a material causal connection between subject imports and alleged domestic harm.

An international sale of goods contract must allocate the risk of loss in transit, specify which party bears the cost of freight and insurance, and identify the governing law for any dispute, and international trade contracts counsel drafting a cross-border sales agreement must evaluate whether the CISG applies and whether its default rules produce outcomes consistent with the parties' intentions and whether the chosen Incoterm accurately reflects the agreed risk and cost allocation.

A letter of credit dispute or trade finance claim that cannot be resolved through negotiation may need to be escalated to formal dispute resolution, and trade finance counsel advising on a trade finance dispute must evaluate whether the bank's refusal to honor a complying presentation represents a wrongful dishonor and whether the independence principle of letter of credit law prevents the applicant from blocking payment on the basis of an underlying contract dispute.