Cristiana Celotti

The United States Supreme Court, in its decision Learning Resources, Inc. v. Trump, No. 24-1287, February 20, 2026, declared unlawful the tariffs previously imposed by the current U.S. President on the basis of legislation intended for situations of national emergency (specifically, the International Emergency Economic Powers Act – IEEPA).

From a strictly legal perspective, the Supreme Court justices were called upon to determine whether the President had the authority to impose tariffs under that legislation without involving Congress. The answer was negative: the Supreme Court clarified that the power to impose taxes and tariffs belongs exclusively to the legislative branch (Congress).

It is clear that this ruling has significant repercussions for market operators and opens a rather uncertain scenario. This is also because the Supreme Court left the economic issues unresolved and did not specify the fate of the tariff-related agreements concluded by the United States during the past year of negotiations.

Meanwhile, following the Supreme Court’s decision, the U.S. President issued a Presidential Proclamation (in force since February 24, 2026) imposing a new 10% tariff on the products previously subject to tariffs introduced under the IEEPA (i.e., those declared unlawful by the Supreme Court).

At this point, it is necessary to consider what consequences the Supreme Court’s decision may have for Italian companies and how they may act to protect their interests.

First of all, Italian companies that directly handled importation may have an interest in challenging the applied tariffs and subsequently filing a refund request. In this regard, it should be noted that, starting from the date of liquidation (i.e., the act through which U.S. Customs determines the amount of duty owed), a strict deadline of 180 days applies for filing a challenge (protest). Such a protest must be submitted electronically through the ACE Protest Module.

If the protest is rejected, the importer may bring the case before the U.S. Court of International Trade (CIT) in New York, a federal court specialized in customs and international trade matters, in order to initiate legal proceedings aimed at obtaining reimbursement of the tariffs considered unlawful.

The CIT has already ruled in favor of a filtration systems company (Atmus Filtration, Inc. v. United States, March 4, 2026), which sought an emergency injunction to prevent the finalization of the unlawful tariffs against it. In particular, the CIT clarified that all "importers of record" may benefit from the Supreme Court’s decision regardless of whether they have filed a claim.

As for Italian importing companies (which paid the tariffs directly as “importers of orders”), they must retain all documentation relating to the IEEPA tariffs paid. In accordance with due diligence obligations, they should consult specialized advisors in order to formally challenge the tariffs and request reimbursement within the statutory deadlines, thereby avoiding limitation periods or forfeiture.

With regard to Italian exporting companies (which did not directly pay the tariffs), two options are available:

a) they may rely on the American importer to submit the refund request so that they, in turn, may recover any costs indirectly borne due to the application of the unlawful tariffs;

b) they may resort to contractual protection mechanisms or exert pressure to renegotiate the existing contracts.

For companies intending to formalize international distribution and supply agreements with the United States, it is essential to include contractual clauses at the time of execution that are capable of mitigating the impact of tariffs on operating costs.

These clauses are of crucial importance because they require the parties to address the allocation of risk ex ante, when the contractual positions are still balanced.

Among the contractual clauses that should be included are:

i) “Hardship” clauses, which allow the parties to renegotiate, and in extreme cases even terminate, the contract in the event of excessive hardship arising after the conclusion of the agreement. It is essential, however, that the clause expressly identifies among the unforeseen events the imposition of new tariffs or legislative changes affecting tariffs.

ii) “Price adjustment” clauses, which provide for the possibility of renegotiating the price if tariffs exceed a certain percentage threshold. If tariffs increase (with an impact on the price of the product or service equal to or greater than x%), the affected party may initiate a renegotiation process by sending written notice to the other party within a predetermined period starting from the date on which the tariff modification enters into force. The clause will also typically provide that the parties undertake to renegotiate the price in good faith.

iii) Cost-sharing clauses, through which the parties agree that the costs resulting from an increase in tariffs will be shared between them.

All the clauses briefly described above do not eliminate the risk associated with tariff increases or the introduction of new tariffs, but they make such risk manageable, in compliance with obligations relating to compliance, planning, and risk management.