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Volume 39 Number 3 2014 Volume 39 Number 3 2014 © 2014 Brooklyn Journal of International Law BROOKLYN JOURNAL OF INTERNATIONAL LAW (ISSN 0740-4824) The Brooklyn Journal of International Law is published three times a year by Brooklyn Law School, 250 Joralemon Street, Brooklyn, New York 11201. You may contact the Journal by phone at (718) 780-7971, by fax at (718) 780-0353, or by email at [email protected]. Please visit the Journal at Brooklyn Law School’s website, www.brooklaw.edu/bjil. Subscriptions: Subscriptions are $25 ($28 foreign) per year and cover all issues in one volume. All institutional subscriptions are now handled through subscription consolidators, such as Hein, EBSCO, or others. If you have questions about an individual subscription placed originally through the Law School, or any other subscription issues, please email jour- [email protected] or write to the Journal Coordinator, Brook- lyn Law School, 250 Joralemon Street, Brooklyn, NY 11201. Please be sure to specify the name of the Journal you are inquiring about. Single and Back Issues: Single and back issues may be ordered directly through William S. Hein & Co., Inc., 1285 Main Street, Buffalo, NY 14209- 1987, Tel: 800/828-7571. Back issues can also be found in electronic format on HeinOnline at http://www.heinonline.org, (available to HeinOnline sub- scribers). Manuscripts: The Brooklyn Journal of International Law will consider un- solicited manuscripts for publication. Manuscripts must be typed, double- spaced, and in Microsoft Word format, with footnotes rather than endnotes. Manuscripts may be emailed to [email protected] or sent in duplicate hard copy format to the Editor-in-Chief, Brooklyn Journal of International Law, 250 Joralemon Street, Brooklyn, NY 11201. Authors must include a copy of their current resume or curriculum vitae. Manuscripts will not be returned, and become the property of the Brooklyn Journal of International Law. The Journal encourages the use of gender-neutral language. Copyright: Unless otherwise expressly indicated, all material in the Brook- lyn Journal of International Law is © 2014 to its author(s). Except as other- wise stated in each article, each author has granted permission to the reader to reproduce the material herein for noncommercial use and with citations to the author and to the Brooklyn Journal of International Law and to make derivative works under a Creative Commons Attribution-Non-Commercial 3.0 License. More information on this license is available at http://creativecommons.org/licenses/by-nc/3.0/legalcode. Production: The citations in the Brooklyn Journal of International Law con- form to THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (19th ed. 2010). Style conforms to THE CHICAGO MANUAL OF STYLE (16th ed. 2010). The Brooklyn Journal of International Law is printed by the Sheridan Printing Company in Hanover, Pennsylvania. Cite as: BROOK. J. INT’L L. MEMBER OF THE NATIONAL CONFERENCE OF LAW REVIEWS BROOKLYN JOURNAL OF INTERNATIONAL LAW VOLUME 39 2014 NUMBER 3 CONTENTS Articles Faster Resolutions in Tariff Classification Litigation: Using Patent Law as a Model Lawrence M. Friedman 955 Harmonization through the Draft Hague Principles on Choice of Law in International Contracts Marta Pertegás & Brooke 975 Adele Marshall The Nippon Quagmire: Article III Courts and Finality of Unit- ed States Court of International Trade Decisions Jane Restani & Ira Bloom 1005 Limits of Procedural Choice of Law S.I. Strong 1027 Party Autonomy in International Contracts and the Multiple Ways of Slicing the Apple Symeon C. Symeonides 1123 Notes All Bark and No Bite: How Attorney Fee Shifting Can Solve China’s Poor Enforcement of Employment Regulations Christopher John Yee Coyne 1145 “Two households, both alike in dignity”: The International Feud between Admiralty and Bankruptcy Alfred Joseph Falzone III 1175 Civilian Social Media Activists in the Arab Spring and Beyond: Can They Ever Lose Their Civilian Protections? David Heitner 1207 E-Waste & the Regulatory Commons: a Proposal for the Decen- tralization of International Environmental Regulation Jing Jin 1251 BROOKLYN JOURNAL OF INTERNATIONAL LAW 2013-2014 EXECUTIVE BOARD & STAFF Editor-in-Chief KATELYN E. CIOLINO Managing Editor ELIZABETH CLARK HERSEY Executive Notes & Comments Executive Articles Editors Executive Symposium Editor Editors JOHN KUPCHA AARON GETMAN KEVIN KEHRLI THOMAS LAVANDER ASHLEY JOY STEIN EMILY ADAMS SHOOR Business Manager THOMAS SLATTERY TARA ARIANNA JOHNSON Associate Managing Editors Notes & Comments Editors LESLIE CLAIRE BAILEY KATELYN ANN KRUEGER VICTORIA N. GALANTE JEDIDIAH M. BERNSTEIN AMANDA MENDRALLA MATTHEW LAMMERTSE CHIWON ASH CHANG ANDREW WYATT POLLACK HILARY WEISS DAVID AARON CINAMON TIMOTHY POODIACK TING POON CHAIM ALEXANDER COHEN ANDREA CLAIRE ROGERS DAVID KOBER NATHAN HIJIKATA COX DOMINIC A. SAGLIBENE CHRISTINE MIN SARAH ELIZABETH DEVITA RAFE M. SEROUYA SETENAY AKDAG JONATHAN ENGEL KIMBERLY FAITH SERRAPICA KEMPSHALL C. MCANDREW JOSHUA FEINZEIG RACHEL KATE SILVERMAN JING JIN STUART GOLD MEGAN DANIELLE SPARKS LIOR SAPIR MATTHEW GOODWIN DARREN MICHAEL TROTTER MATTHEW HENRY TAO ZHANG HARRISON SAM KLEINMAN Staff Members ROBERT D. ARGEN JARED J. LACERTOSA ERIN T. RYAN MEGHAN C. BOLAND KA NI LI SAMANTHA SIMCHOWITZ NOELLE BOOSTANI DAVID B. LICHTSTEIN CHRISTINA SIMPSON ALEXANDRA ROSE CALECA DIYANG LIU ARTHUR T. TERGESEN EDWARD L. COHEN OLUWAFUNMILOLA OLAWOLE- WENDY WAI YU TSANG CHRISTOPHER J. COYNE ANJORIN ALANA B. WEBER ZAMIRA M. DJABAROVA AAMIR H. RAHMAN CLARISSA A. WERTMAN ERIC V. EINGOLD KENDRA E. RIDDLEBERGER STEPHANIE N. WESTERMAN ALEXANDER J. ELEFTHERAKIS MELANIE L. RIOS JOHN WILLUMSEN-FRIEDMAN ALFRED J. FALZONE III ELANA RODMAN ALEXANDER R. YARM RACHEL S. GELB TAMANNA RUBYA MORRIS C. ZARIF JANEEN R. HALL TEISHA RUGGIERO JORDAN GREGORY ZIMOLKA KRISTIAN C. KROBER CAITLIN E. RUSSELL Faculty Advisor Library Liaison PROFESSOR BRIAN LEE INTERIM LIBRARY DIRECTOR JEAN DAVIS FASTER RESOLUTIONS IN TARIFF CLASSIFICATION LITIGATION: USING PATENT LAW AS A MODEL Lawrence M. Friedman* INTRODUCTION .................................................................. 955 I. MARKMAN HEARINGS ..................................................... 957 II. TARIFF CLASSIFICATION ............................................... 960 III. TARIFF LITIGATION IN THE UNITED STATES ................ 965 IV. CLASSIFICATION CASE STUDIES .................................. 967 A. Firstrax v. United States ......................................... 967 B. Del Monte Corp. v. United States ............................ 968 C. Salem Minerals v. United States ............................ 968 V. APPLYING THE MARKMAN MODEL TO CLASSIFICATION CASES ............................................................................... 969 VI. POSSIBLE CONCERNS .................................................. 970 VII. RECOMMENDATIONS .................................................. 972 CONCLUSION ..................................................................... 973 INTRODUCTION he United States Court of International Trade has exclu- Tsive nationwide jurisdiction to review United States Cus- toms and Border Protection (“Customs”) decisions concerning the tariff classification of imported merchandise.1 Tariff classi- * Lawrence Friedman is a partner in the Chicago office of Barnes, Richardson & Colburn where he practices exclusively in the areas of customs, export, and trade law. He is also an Adjunct Professor of Law at the John Marshall Law School Center for International law. He began his career as a law clerk to the Honorable Dominick L. DiCarlo of the Court of International Trade. He holds a J.D. and LL.M. in Intellectual Property law from the John Marshall Law School and serves on the Board of Directors of the Customs and International Trade Bar Association. Brad Opfermann, J.D., a recent graduate of the John Marshall Law School Center for International Law, provided invaluable as- sistance in completing this article. 956 BROOK. J. INT’L L. [Vol. 39:3 fication is important to both the United States and to importers because it controls, among other things, the rate of duty appli- cable to goods entering the United States. Importers may chal- lenge the classification that Customs assigns to merchandise in an effort to seek the refund of duties,2 to avoid the imposition of monetary penalties for noncompliance,3 to avoid the application of quantitative quotas, or for other reasons. Most tariff classification cases do not involve disputed facts concerning the structure, operation, or other physical aspects of the merchandise. Consequently, these cases often turn entirely on questions of law involving the interpretation of the Harmo- nized Tariff Schedule of the United States.4 Consistent with the legal nature of these disputes, most classification cases are resolved via motions for summary judgment because there are no material facts in dispute.5 Nevertheless, the parties to classification disputes generally engage in sometimes lengthy and expensive discovery involving document production and deposition testimony from both lay and expert witnesses. The focus of this discovery is often to con- firm, on the record, the nature of the merchandise in a way that fits each party’s understanding of the tariff language. Dis- covery may also involve expert opinion as to the common and commercial meaning of the tariff language.6 Each party then argues for the Court of International Trade to adopt its inter- pretation of the tariff language and then to apply the usually uncontroverted facts to the interpreted text.
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