The International Trade Commission denied a motion for summary determination (ITC-speak for summary judgment) that Wirtgen had satisfied the economic prong of the domestic industry requirement. The order explains what is considered in an assessment of an economic domestic industry analysis:
Citing Lelo Inc., the ITC explains that there must be a presentation of quantitative data to support domestic industry claims. The citation also explains that a ratio analysis of domestic and foreign activity should be provided. It appears that some minimum economic analysis is a requirement, without which there may arise “a genuine issue of material fact.”
In a precidential opinion, the CAFC affirmed a decision by the International Trade Commission which had determined that a U.S. industry was being injured due to importation of “crystalline silicon photovoltaic (‘CSPV’) cells and modules from China that [Commerce] has determined are subsidized and sold in the United States at less than fair value.”
Critical to this opinion, the CAFC explained that in order to determine injury in matters involving antidumping and countervailing duties :
The highlighted passage is critical, because it means that there must be demonstration of but-for causation. Citing Mittal Steel Point Lisas Ltd. v. United States, the CAFC explained that this “requires the finder of fact to ask whether conditions would have been different for the domestic industry in the absence of dumping.”
Ultimately, the CAFC and the Commission determined that the behavior of Changzhou Trina Solar Energy Co. Ltd. caused at least some injury. The courts stated that not all injury was due to the dumping, but there was enough evidence to demonstrate a causal nexus of at lease some harm.