United States Court of International Trade

Slip Op. 20-104

Before the Court in Bldg. Sys. De Mexico, S.A. de C.V. v. United States, et. al., Slip Op. 20-104, Court No. 20-00069, (July 23, 2020) was defendant-intervenor, the American Institute of Steel Construction, LLC.’s (“AISC”) motion for a stay pending the outcome of a NAFTA panel’s review of the International Trade Commission’s (“ITC”) negative injury determination in its investigation of fabricated structured steel (“FSS”) from Canada, China, and Mexico. AISC argued that “granting the stay would promote judicial economy because, unless and until a NAFTA panel or this Court remands the determination to the ITC, and unless and until the ITC issues an affirmative remand redetermination, any and all challenges to Commerce’s final determination are moot.” Id. at 5. Plaintiff BSM countered that “granting the stay would cause it considerable hardship and undermine judicial economy.” Id. For the following reasons, the Court denied the AISC’s motion to stay.

The power to stay proceedings “is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Id. at 5. If there is “even a fair possibility that [a] stay” will do damage to the opposing party, the movant “must make out a clear case of hardship or inequity in being required to go forward[.]” Id. at 6. In this case, AISC failed to make a strong showing of hardship or inequity in being required to go forward with the proceeding. While staying the case would risk causing harm to plaintiff and undermine the judicial economy. The Court found that because the parties recently requested the NAFTA panel review, it was “unlikely that the NAFTA panel will render a decision within a matter of months.” Id. at 8. “[T]he parties are allowed 30 days from the date of request to appoint two panelists, 45 days from the date of request to exercise peremptory challenges to those appointments, and 55 to 61 days from the date of the request to appoint a fifth panelist.” Id. “Additionally, the NAFTA panel must conduct its review in accordance with Article 1904(14), which allows the parties 30 days to file a complaint, 30 days to file the administrative record, 60 days for complainant to file its brief, 60 days for responses, 15 days for replies, 15 to 30 days for the panel to convene and hear oral argument, and 90 days for the panel to issue its written decision.” Id. at 9. The Court did not “foresee a decision from a NAFTA panel disposing of the matter soon.” Id. As such, the Court saw no reason to delay addressing the issues before it, and denied the AISC’s motion to stay. Id.