Trade and Commerce Litigation: How to Win Cross-Border Disputes

The CISG automatically governs contracts for the international sale of goods between parties from different signatory countries unless the parties expressly exclude it and elect a different law, and its rules on breach, damages, and remedies differ materially from the UCC. Under the CISG, a buyer may require specific performance and a seller's cure right is broader than under the UCC, while the fundamental breach standard for avoiding a contract differs from the UCC's perfect tender rule.

Commercial contracts and breach of contract counsel can advise on whether the UCC or CISG governs the dispute, assess which party's performance obligations were breached and what damages are available, and develop the breach of contract litigation or arbitration strategy.

A force majeure clause excuses performance when an event meeting the clause's definition of an unforeseeable, unavoidable, and external impediment makes performance impossible, and whether a supply chain disruption qualifies depends on the specific clause language and the foreseeability of the event at contract signing. Under UCC Section 2-615 and CISG Article 79, commercial impracticability may also excuse performance when an unforeseen contingency whose non-occurrence was a basic contract assumption makes performance impracticable, but courts refuse to excuse performance based on cost increases alone.

Supply chain disruptions and breach of contract suit counsel can advise on the force majeure, commercial impracticability, and frustration of purpose defenses, assess whether the disruption satisfies the contractual or legal standards for excuse, and develop the force majeure claim or defense strategy.

An anti-dumping investigation begins with a domestic industry petition, after which Commerce investigates whether imports are sold below normal value and calculates a dumping margin, while the ITC determines whether the domestic industry suffers material injury. A countervailing duty investigation follows the same structure but focuses on actionable foreign government subsidies, and the resulting order requires importers to deposit estimated duties on each entry of subject merchandise until the order is revoked.

Anti-dumping duty and countervailing duties counsel can advise on the Commerce and ITC investigation procedures, assess whether the goods are priced below normal value or receive actionable subsidies, and develop the AD/CVD investigation defense and scope ruling strategy.

An importer challenging a Section 232 or 301 tariff may file in the Court of International Trade within thirty days of a protest denial, arguing the tariff exceeded statutory authority, violated the APA, or was arbitrary and capricious. The most effective strategy is typically to file an exclusion request, demonstrating the product is unavailable domestically or that the tariff imposes a hardship disproportionate to any trade policy benefit.

Trade remedies and customs law counsel can advise on the Section 201, 232, or 301 tariff action procedures, assess whether an exclusion request or CIT challenge is available, and develop the customs classification dispute and tariff litigation strategy.

A cross-border commercial dispute can be resolved in U.S. .ourts, the counterparty's courts, or through international arbitration under ICC, AAA/ICDR, or LCIA rules, and the forum determines procedural rules and enforcement of the judgment where the losing party holds assets. International arbitration is preferred because a New York Convention award can be enforced in more than one hundred seventy countries through a streamlined process, while a U.S. .ourt judgment requires separate recognition proceedings in each foreign jurisdiction.

International arbitration and international dispute resolution counsel can advise on the choice of forum, governing law, and procedural rules for cross-border commercial litigation, assess whether the New York Convention provides an enforcement mechanism, and develop the cross-border litigation and enforcement strategy.

A WTO dispute begins with a request for consultations, and if consultations fail within sixty days the complainant may request a panel that issues findings within nine months of its composition. A member that fails to comply within a reasonable period exposes itself to DSB-authorized retaliation in the form of increased tariffs on its exports up to the level of the trade damage caused by the non-complying measure.

Trade disputes and judgment enforcement counsel can advise on the WTO dispute settlement procedures, assess whether the government measure violates applicable WTO agreements, and develop the government representation or private party advocacy strategy.