bluuebunny/crossref_metadata_2025 huggingface dataset:
Commentary on the Amsterdam District Court Judgment of 31 October 2007 Re Yukos
Authors: Verkerk Barend
Published: March 2022

This article critically analyses the recent award of the Amsterdam District Court by which the trustee in the bankruptcy of the Russian holding company Yukos Oil was prevented from getting a grip on the management and the assets of the Dutch company Yukos Oil Finance B.V.
Corporate Governance Reform in the US and EU – Time for a Change
Authors: Mouthaan Erik
Published: March 2022

The author holds that perhaps even more than poor governance it is the human factor that determines how effective a system of corporate governance is. He stresses the need to develop research and programmes aimed at ‘managing integrity’ as a multi–disciplinary and joint effort of regulators, companies and academics.
Relocating a Company within the EU
Authors: Werlauff Erik
Published: March 2022

Cross–border relocation of a private or public limited company within the borders of the EU can be realized by way of a reverse vertical merger. Various elements of this ‘suction cup method’ are described and evaluated.
The Impact of Optional EU Law Making on National Company Law
Authors: Bartman Steef M.
Published: March 2022

Optional EU rules in company law have two side effects: on the one hand they justify a limitation on the freedom of stablishment where a Member State has previously made a mandatory choice of its own, on the other hand they do not take away the national judiciary’s duty to interpret national law in conformity with EU law where possible.
The Societas Privata Europaea under the Magnifying Glass (Part 1)
Authors: Uziahu-Santcross Odeaya , Dorresteijn Adriaan F. M.
Published: March 2022

This is the first part of a series of two articles analyzing the Commission’s recent draft proposal for a Council Regulation on the Societas Privata Europaea (SPE).
Avoidance Actions under Article 13 EC Insolvency Regulation: An Italian View
Authors: Frigessi di Rattalma Marco
Published: March 2022

Council Regulation (EC) No. 1346/2000 of 29 May 2000 (the Insolvency Regulation) is as a general rule based on the lex fori. The Regulation does however contain some exceptions to this rule. One of these is found in Article 13 that may be invoked in so–called avoidance actions.
EU Corporate Insolvency Law in the Wake of the ECJ’s Deko Marty Judgment
Authors: Lennarts Loes
Published: March 2022

In February 2009, the ECJ rendered the Deko Marty judgment in which it decided that courts of Member States having jurisdiction to open insolvency proceedings on the basis of the EU Insolvency Regulation also have jurisdiction to hear actions which derive directly from insolvency proceedings and are closely linked to them. The author discusses this judgment in the light of the recent trend of insolvencification: the policy to re-label company law provisions that aim to protect creditors by transforming these provisions into provisions of insolvency law.
Do the European and Dutch Rules on Variable Remuneration of Financial Institutions Match and Can Remuneration Be Regulated on a European Level?
Authors: Oostwouder Wilco J. , Kromwijk Denise E.M.
Published: March 2022

Unbalanced variable compensation in the financial sector is said to have led to undesirable behaviour ranging from excessive risk taking to an over-emphasis on short-term results. Both in The Netherlands and on the EU level, there are several initiatives on variable remuneration of executive board members. Unfortunately, the rules laid down therein are not always clear-cut and differ from each other.
The Norwegian Sovereign Wealth Funds Ethical Guidelines: A Model for Investors
Authors: Halvorssen Anita M.
Published: March 2022

After explaining how the Norwegian Sovereign Wealth Fund, the Government Pension Fund - Global (GPFG) and its Ethical Guidelines work, this article will argue that there is growing consensus that sustainable development is a legitimate concern for all investors. Hence, using ethics guidelines such as the ones used by the GPFG should not be a reason for promoting special regulation, singling out sovereign wealth funds.
The EUs Internal and External Regulatory Actions after the Outbreak of the 2008 Financial Crisis
Authors: Van Kerckhoven Sven
Published: March 2022

Approaches to the financial crisis have been made on both the EU level and the level of the EU Member States and internationally through the G20. Wouters and Van Kerckhoven argue that the regulatory action that was taken on the level of the EU, although far from perfect, has nonetheless been supportive in limiting the consequences of the crisis.
International Class Actions: Will the Centre of Gravity Shift from the US towards Europe?
Authors: de Clerck Wouter J.L. , Rotenberg Jeffrey D. , Douglas-Henry Jean-Pierre
Published: March 2022

On 17 January 2012 the Appeals Court in Amsterdam, the Netherlands concluded class settlement proceedings in the Converium securities litigation. In its decision the court made explicit reference to the 2010 United States (U.S.) Supreme Court judgment in Morrison v. National Australia Bank. It is interesting to consider these decisions - which have sparked debate in their respective jurisdictions - from a trans-Atlantic perspective more specifically. The decisions in the Converium case confirm the Netherlands as the pre-eminent European centre for the settlement of international collective claims outside of the U.S.
The Downside of being a Letterbox Company
Authors: Teichmann Christoph
Published: March 2022

A letterbox company may be understood as a company incorporated in the territory of a state where it is not carrying out any business activity, the main reason for incorporating the company in this state being the interest in its company law rules. Prior to the company law reform of 2008, Germany was considered to have a rigid and formalistic procedure of incorporating private limited companies. Hence, many German businessmen made use of the more flexible and cheaper incorporation procedure in the United Kingdom. As a further development, in order to comply with European law, German courts abandoned the real seat theory and adopted the incorporation theory which leads to the application of the company law of the place of incorporation.
Shareholders Duties to the Company and Fellow Shareholders
Authors: de Jongh J. Matthijs
Published: March 2022

It is a principle of company law worldwide that shareholders - as opposed to a company's directors - may use their rights in their own interests. However, it may well be the case that shareholders do owe duties to other parties, like the company or their fellow shareholders. This would amount to an exception to the so-called autonomy principle which allows shareholders to act in their own interest. At the same time, under Dutch law all corporate constituencies shall act in accordance with the principles of reasonableness and fairness. This fairness principle may also require shareholders to keep an eye on the interests of the company and of other corporate constituencies like minority shareholders.
The Special Purpose Vehicle: A Micro Merger or Merely a Way of Cooperation?
Authors: Fomcenco Alex
Published: March 2022

The purpose of this article is to investigate whether the situation where two companies appear as originators or sponsors behind a Special Purpose Vehicle (SPV) can be described as a merger, although on micro scale. Are the underlying grounds behind the creation of an SPV much different than those in a merger situation? What is actually happening when two enterprises originate an SPV? And what distinguishes an SPV from a joint venture, or is it the same thing?
The Bankers Oath in the Netherlands and Abroad
Authors: Galle Annika , Bieman Katja den , Jans-van Wieringen Marlène
Published: March 2022

The recently introduced banker's oath in the Netherlands is a topic that is currently leading to intense debate. This article describes its development, sanctioning, planned extension as well as the banker's oath abroad. The banker's oath does not guarantee that trust will be restored in the financial sector. Why is this tool being implemented nonetheless? Since it has so far been decided to adopt the banker's oath on a broad scale, it is relevant to come up with a banker's oath that is future proof, widely accepted and an example for Europe.
Moving Into, Through and Out of the EU with Corporate Continuity
Authors: Roelofs Erwin R. , van Eck Gerco C.
Published: March 2022

The possibility for non-EU companies to move into a certain EU Member State (with corporate continuity), to thereafter move through the EU as an EU company and subsequently exit the EU (with corporate continuity) would improve the (proper functioning of the) internal market of the EU.
The Opening of Multijurisdictional Insolvencies Through the Prism of the Recast Regulation 848/2015
Authors: Andrianesis Anastasios P.
Published: March 2022

The Insolvency Regulation constitutes a remarkable legal instrument introducing a new era on cross-border insolvencies in the EU. Corresponding to the constant request for a uniform procedural law regime to govern insolvency proceedings, the Regulation’s 1346/2000 contribution towards promoting intra-community trade is estimated as of paramount significance, since it enhanced legal certainty and predictability through the establishment of uniform criteria, determining the State courts in the place of COMI (‘center of main interests’) as the judicial authority conferred with international jurisdiction to adjudicate upon insolvency cases. However, shortcomings that have been emerged in practice called for modifications to the current framework which were finally introduced by the Recast Regulation 848/2015.
Swiss Tax Aspects of Debt Financing: A Guide on Contractual Arrangements Required to Mitigate Swiss Interest Withholding Tax and Their Practical Implications
Authors: Sutter Fabian M. , Liechti Aron
Published: March 2022

Switzerland is one of the few European countries to apply a strict set of complex tax rules to debt financing which may even apply if a debt instrument is issued by a non-Swiss issuer. For corporate and banking lawyers involved in debt financing transactions with a nexus to Switzerland, dealing with Swiss withholding tax rules as well as the corresponding language in the loan documentation and agreements is inevitable. This article focuses on providing an overview to non-tax focused lawyers in order to facilitate the understanding of the Swiss interest withholding tax system applicable to debt financings and to raise awareness of recent changes in practice introducing more relaxed safe harbours.

debt financing, Swiss withholding tax reform, tax law
Sustainable Corporate Governance:A Way Forward
Authors: Engsig Sørensen Karsten , Möslein Florian
Published: March 2022

Rarely has the report of a private consultancy caused so many reactions, in particular, criticism, in such a short period of time, as the “Study on directors’ duties and sustainable corporate governance” that Ernst and Young recently prepared for the European Commission DG Justice and Consumers (EY report).1 In addition to the responses of various groups of scholars from both Europe and the US,2 the Oxford Business Law Blog has launched a specific new series3 and the European Corporate Governance Institute has organized a three-day policy workshop, in order to bring together the presentations of over 20 distinguished scholars.4 This intensive debate demonstrates the importance of the topic for future EU policymaking in the area of corporate governance. In this piece, we argue that the main reason the EY report has attracted so much criticism is because it simply started out on the wrong foot. However, this shortcoming should not induce the Commission to misjudge company law’s potential for sustainability. We discuss various measures that target both directors and shareholders, but also other stakeholders. Adopting these measures promises to be the way forward for a more sustainable, corporate governance framework.

directors’ duties, corporate governance, sustainability
Choice-of-Forum Provisions in Regional Trade Agreements and Their Implications for International Dispute Resolution and International Law
Authors: Taylor Richard
Published: March 2022

Two of the strongest trends to emerge from the rapid growth of international trade law in recent times have been the proliferation of regional trade agreements (RTAs) and the continued strength of the World Trade Organization (WTO) dispute settlement system. Choice-of-forum provisions in RTAs have become a common byproduct of these trends in an attempt to regulate potential conflict between these regimes. The decision to borrow choice-of-forum provisions from domestic ‘forum shopping’ rules has taken place without due consideration being given to the relative merits and possible future impact of such an approach. This article analyses the justifications put forward for including these provisions against the potential impact on inter-state dispute resolution.
Harmonized System: Binding Pre–entry Information on Customs Classification
Authors: Weerth Carsten
Published: March 2022

More than 200 countries and economic regions worldwide are using the nomenclature of the Harmonized Commodity Description and Coding System (Harmonized System Convention: HS) and basing customs tariffs thereon. The number of HS headings (four–digit code) and HS subheadings (six–digit code) is altered every four to six years, when the nomenclature is revised and updated due to trade patterns and technical development (HS 1988, HS 1992, HS 1996, HS 2002, HS 2007). The World Customs Organization (WCO) has recommended the introduction of programmes for binding pre–entry customs classification information in national customs legislation in order to provide secure information on classification issues and tariff rates for economic operators and customs authorities. This article examines the introduction of binding pre–entry classification information within the HS contracting parties.
Amendments to the Anti–dumping Agreement: The Chairman’s Dinner
Authors: Brink Gustav
Published: March 2022

In 2001 WTO Members agreed that the Anti–Dumping Agreement be included for renegotiation in the Doha Development Round. Various countries made proposals in this regard. In November 2007 the Chairman of the Committee on Anti–Dumping Practices published a draft text indicating the proposed amendments to this Agreement. This article considers the more important proposed amendments to the current text.

Scrutiny of the Chairman’s text reveals that it contains several positive proposals, including the exclusion of zeroing in antidumping investigations employing the weighted average–to–weighted average methodology and limiting the overall duration of anti–dumping duties, while it also provides for greater transparency in investigations. All of this is supported. However, it also shows that the Chairman’s text provides for more protectionist use of the anti–dumping instrument than is currently the case, including expressly permitting the use of zeroing in the transaction–to–transaction methodology and in reviews. The analysis further shows that more could have been done to prevent the abuse of anti–dumping as a protectionist measure against trade that is not necessarily unfair. The article concludes by finding that the AD Agreement can be significantly strengthened through the exclusion of certain proposed amendments, the amendment of some proposals and the inclusion of proposals made by Members, but not included in the Chairman’s text.
WTO: New Database on Regional Trade Agreements
Authors: Weerth Carsten
Published: March 2022

Regional Trade Agreements (RTAs) are growing more and more important in the global trade in goods and services. The WTO has now launched a new database on RTAs that contains all relevant documentation received by the WTO Secretariat.
The EC’s Common Commercial Policy Revisited: What Does Lisbon Add?
Authors: van den Berghe Frederic
Published: March 2022

Article 133 EC Treaty regulates the conclusion of EC external trade agreements. As the scope of subjects covered by international trade negotiations and by the EC’s common commercial policy has broadened, the issue of the limits of this exclusive competence has risen. This article outlines the changes to Article 133 EC Treaty over the last two decades and summarizes the amendments introduced by the Lisbon Treaty to that article. Although the latter amendments have clarified competency issues with respect to intellectual property agreements, they have raised considerable legal uncertainty with respect to competence for foreign direct investment (FDI).
The Better Is the Enemy of the Good
Authors: Depypere Stefaan
Published: March 2022

Ensuring transparency in trade defence proceedings is a major challenge because such proceedings process an important amount of confidential data. Both the World Trade Organization (WTO) Anti-Dumping Agreement and Community law contain a number of mechanisms that ensure transparency. The investigating authority’s duty to maintain a meaningful non- confidential file is a key element in this context. In June 2009, the European Commission has launched a policy initiative that aims not only at improving the quality of the non-confidential file but also at a number of other procedural ameliorations. The implementation of this initiative does not necessitate a legislative change nor does it touch on the balance between importing interests and interests of Community producers. Improvements that are applicable right from the launch of this initiative comprise inter alia guidelines as to how non-confidential summaries should be drafted and an index to the non-confidential file. An improved web page and electronic access to the non-confidential file are scheduled for the foreseeable future.
The System of Energy Dual Pricing in Russia and Ukraine: The Consistency of the Energy Dual Pricing System with the WTO Agreement on Anti-dumping
Authors: Pogoretskyy Vitaliy
Published: March 2022

Dual pricing has been a controversial issue in the General Agreement on Tariffs and Trade and the World Trade Organization in the context of trade in natural resources and natural resources-based products. So far, a WTO panel has never had a chance to rule on the consistency of energy dual pricing system with WTO rules.

This article examines the relationship between energy dual pricing systems in Russia and Ukraine and anti-dumping measures applied against these countries’ exporters of energy-intensive products. The key question analyzed in the article in whether the WTO Agreement on Anti-Dumping allows using costs information from a third country, when exports under investigation originate in a market economy country?
Are Tariff Explanatory Notes Subject to Judicial Supremacy?
Authors: Rovetta Davide
Published: March 2022

In 1803, under the lead of John Marshall in Marbury v. Madison, the Supreme Court of the United States ruled that: It is emphatically the province and duty of the judicial department to say what the law is . . . If two laws conflict with each other, the courts must decide on the operation of each . . . This is of the very essence of judicial duty. Likewise in the European Union, under both EU law and the national laws of the Member States, it is widely accepted that only the judiciary must have a final say on what a given law means. Turning now from these quasi-constitutional principles to tariff classification matters, the question arises whether such principles are applied in EU customs classification matters? In the case of Explanatory Notes, the executive branch enacts ‘soft law’ guidance that, however, is widely followed and applied by the national customs administrations of the EU Member States. While formally we are facing soft law acts, the wide and almost unconditional application of tariff classification Explanatory Notes by the national customs administrations renders them de facto law.
The Balli Case: OFAC’s Reach Keeps Growing
Authors: Sherman Michael D.
Published: March 2022

In addition to the strengthening of multilateral economic sanctions against Iran by the U.N. Security Council in June, the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of Treasury is interpreting and applying existing U.S. unilateral sanction provisions of the U.S. Iranian Transactions Regulations, 31 C.F.R. Part 560, more broadly to reach, and to penalize, directly conduct of non-U.S. persons undertaken wholly outside the United States. Previously understood limitations of OFAC’s reach to U.S. persons need to be re-assessed. The settlement earlier this year between OFAC and Balli Aviation Ltd and Balli Group PLC is illustrative and should be taken as a cautionary note in this regard because the full implication of this new direction by OFAC would appear to be significant.
Picking Winners and Losers in the U.S. Generalized System of Preferences: Improving the Product Competitiveness Test
Authors: Janzen Bernd G.
Published: March 2022

An underlying principle of the GSP program is that the creation of trade opportunities for developing countries is an effective way of encouraging broad-based economic development and a key means of sustaining momentum for their economic reform and liberalization.

The President’s 2010 Trade Policy Agenda

The U.S. Generalized System of Preferences (GSP) program provides duty-free, preferential access to the U.S. market for 4,881 products, valued at over USD 20 billion in 2009, from 131 beneficiary developing countries (BDCs). This preference program is vital to many developing country export industries and to many U.S. importing and consuming industries. Despite this success, reform is needed. Absent a Presidential waiver, certain limits on eligibility for GSP preferences undermine the value of the program. The limits must be revised and the administration of the program must become more transparent and predictable. It is timely for Congress to make these changes to the law as it considers overall GSP reform and reauthorization of the program.
Regulation Defies Congressional Mandate: Antidumping and Nonmarket Economies
Authors: Fraedrich Laura
Published: March 2022

Foreign producers and importers often have a challenging, uphill battle when defending against a dumping petition. The statutory framework for evaluating whether foreign producers are selling below fair value in the United States leaves significant discretion to the U.S. Department of Commerce and the U.S. International Trade Commission and foreign producers often find themselves on the losing end of a court’s analysis under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., when the court rules that the agency has reasonably interpreted a governing statute. This did not occur, however, in the recent case of Dorbest Limited v. United States, when the U.S. Court of Appeals for the Federal Circuit ruled that the Department of Commerce’s (“Commerce”) regulation for computing labor rates to calculate a dumping margin for a Chinese product defied Congress’ mandate set out in the governing statute.
Customs in the Regional Trade Agreements of Australia and New Zealand: Efforts to Improve Customs Instruments and Develop Trade
Authors: Temby Ian , Sandford Iain
Published: March 2022

Australian and New Zealand regional trade agreements have improved customs administration and built opportunities for trade-driven economic development. As champions of trade liberalization and economic reform and multilateral trade liberalization, both Australia and New Zealand have increasingly focused on regional trade agreements (notably free trade agreements (FTAs)) to expand opportunities for trade in the Asia-Pacific region. This effort has important implications for customs law and administration. In addition, a renewed focus on efficiency, risk management, and border security means that domestic policy initiatives from within Australia and New Zealand are now increasingly being reflected in the respective countries’ trade negotiating agenda. This article offers a practitioner’s perspective on these and related developments. It updates contemporary developments in Australia and New Zealand and highlights useful lessons. This article begins with a discussion of the importance of trade facilitation through driving efficiency in customs administration. It also offers an overview of the Australian context of customs reform and Australia?s efficiency agenda. It then reviews the current suite of trade agreements in Australia and New Zealand, highlighting the approach taken to customs issues. After addressing the facilitation agenda, revenue issues, and security issues, this article concludes that Australia and New Zealand have been successful in making progress in improving customs instruments and developing trade. It suggests there may be lessons for other trade negotiating agendas in the incremental and under-the-radar approach that has been taken over more than a decade in relation to customs in Australian and New Zealand trade agreements.
Deemed Liquidation: The Race to the Court House
Authors: Walders Lawrence R.
Published: March 2022

Parties that contest determinations by the U.S. Commerce Department in antidumping and countervailing duty (AD/CVD) proceedings have thirty days to file a summons in the Court of International Trade (CIT) and another thirty days to file a complaint. Nevertheless, the lawsuit will be barred if entries of the subject merchandise are liquidated at the antidumping or countervailing duty rate determined by Commerce before the court issues an injunction against liquidation. The risk has been enhanced by Commerce’s policy of issuing liquidation instructions to Customs and Border Protection fifteen days after publication of the final results of administrative reviews instead of waiting until the time for seeking judicial review has expired. To avoid this risk, plaintiffs should file a summons, complaint, and motion for preliminary injunction immediately after the final results are published, and they should also seek the government’s agreement not to liquidate before the court issues an injunction.
Where the EU Anti-dumping System Continues to Fail on Issues Relating to Transparency and Predictability
Authors: Newman Stuart
Published: March 2022

Since the beginning of 2008, when the Green Paper exercise launched at the end of 2006 by EU Trade Commissioner Peter Mandelson to review the EU’s trade defence instruments was withdrawn, the Commission has been very reluctant to discuss the idea of reform. However, recently the Commission has indicated that it might be willing to take a second look at selected areas that have faced criticism. In this article I examine some of the main areas where reform, from a perspective of importers and retailers, should be (and could be) achieved.
United States Re-export Jurisdiction Clarified for Non-U.S. Products
Authors: deButts Thomas M.
Published: March 2022

The U.S. Department of Commerce published a redacted advisory opinion clarifying the application of the U.S. Export Administration Regulations (EAR) to non-U.S.-made products incorporating other non-U.S. products with U.S.-origin content. The advisory opinion constitutes the first written guidance permitting non-U.S. manufacturers to disregard U.S.-origin content incorporated by others into non-U.S. products that are, in turn, incorporated into their product. As a result, non-U.S. manufacturers may more easily apply the de minimis exemption from U.S. re-export control under the U.S. EAR. This article outlines the de minimis exemption from U.S. extraterritorial re-export controls, explains the application of the recent clarification of the so-called second incorporation principle, and provides examples of the application of the principle to non-U.S. made products.
Can Customs Rules Solve Difficulties Created by Public International Law?: Thoughts on the ECJs Judgment in the Brita Case (C-386/08)
Authors: Munin Nellie
Published: March 2022

The Brita case decided by the European Court of Justice (ECJ) in early 2010 refers to the application of rules of origin in the EC-Israel and EC-PLO Association Agreements to territories occupied by Israel in 1967 and held by it since.

The decision of the ECJ, based on the general principles of public international law, reflects the European Union's (EU's) policy toward the region but does not contribute to the enhancement of international trade in these areas.

This article suggests that alternative, trade-oriented legal approaches to this dispute, based on the interpretation of the relevant Association Agreements according to the principles of the Vienna Convention on the Law of Treaties (VCLT) 1969 and on the General Agreement on Tariffs and Trade (GATT), might have better served the trade interests of all the parties involved, in the short term, thus facilitating the enhancement of the peace process in the region in the medium to long term.
Development and Innovation: The Role of State Enterprises
Authors: Agustinho Eduardo Oliveira , Ribeiro Marcia Carla Pereira
Published: March 2022

While society is changing at speeds never seen before, some questions arise about the impact that new technology causes and will cause in the lives of citizens. Unfortunately, not all innovation leads to development, and not all development is of a global nature. In this context, the law presents interesting alternatives. The state can play an important role in regional economic development through state enterprises. State enterprises ally with private and public investment, which assures that the interest of the collective prevails. However, the performance of state enterprises is very limited by the Agreement on Subsidies and Countervailing Measures (hereinafter 'SCM Agreement'). To a certain extent, the restrictions therein contradict the sole aim of the agreement, which clearly expresses the importance of subsidies in economic development. This paper analyzes the legal system of state enterprises within Brazil and their recent successes, as a basis to rethink the limitations imposed by the SCM Agreement.
Lack of Transparency in the EU Anti-Dumping System: There is Only One True Solution
Authors: Newman Stuart
Published: March 2022

Quis custodiet ipsos custodes? It is a question that has been asked since the time of Plato and is still resonant today: Who will guard the guards themselves? Unfortunately, Plato's answer, They will guard themselves against themselves, is, at least with respect to the guardians of the European anti-dumping system (the EU Commission), rather a wishful thinking. This article calls for the Commission to stop making exaggerated claims about improved transparency (through such initiatives as an improved website) and instead implement a system that provides true transparency. It looks, briefly, at the examination process itself, shows how the over-zealous use of confidentiality restricts access to relevant data and to independent verification of conclusions reached by the Commission, and offers a solution to this problem.
CJEU Judgment in BSkyB and Pace Cases on Customs Classification of Set-Top Boxes
Authors: Nordin Sara
Published: March 2022

On 14 April 2011, the Court of Justice of the EU issued its judgment in the two joined cases British Sky Broadcasting Group plc (C-288/09) and Pace plc (C-289/09) v. The Commissioners for Her Majesty's Revenue & Customs. This judgment is important as it coincides with the EU's ongoing implementation of the WTO Panel Reports in the Information Technology Agreement (ITA) dispute and involves questions about correct EU customs classification of certain set-top boxes - along with related issues under the EU's customs rules - and whether the EU is bound to provide duty-free treatment under ITA principles even if EU customs law did not specifically provide for this at the time the duties were imposed.
An August Rule: Observations about Evolving ITAR Nationality Requirements
Authors: Pisa-Relli John
Published: March 2022

In mid-August 2011, U.S. export controls over foreign access to U.S. defense technology underwent a major change, with the emphasis shifting from a singular focus on a foreign individual's nationality to a largely subjective approach focused on the risk of diversion that takes into account whether a foreign person has a security clearance or otherwise has been screened for substantive contacts with prohibited countries. This article, though written immediately before the changes became legally effective, discusses the new access requirements, which at the time of publication remain largely untested by practical experience, making the questions posed timely and relevant.
A Modernization of the Incoterms
Authors: Casuccio Paul
Published: March 2022

The International Chamber of Commerce has published the first revision in over a decade to its rules for the use of domestic and international trade terms. These rules reduce the risk associated with the sale of goods by creating a mechanism that buyers and sellers can use to clearly communicate their respective obligations. The new rules, published as Incoterms 2010, include several noteworthy changes. This article identifies and discusses these changes.

One of the most significant changes in Incoterms 2010 is its expanded application to domestic sales contracts. This expansion has encouraged the replacement of Uniform Commercial Code terms with Incoterms in sales contracts where one party is located in the US. In order to simplify the use of Incoterms and make Incoterms more accessible to new users, significant changes have also been made to terms themselves. These changes include the introduction of new terms and the reclassification of existing terms. More subtle changes, including the treatment of terminal handling charges, the clarification of insurance obligations and the timing of risk transfer from the seller to the buyer, are also included. In addition, Incoterms 2010 has introduced new rules that allocate security-related obligations, address the expanded use of electronic documents and recognize the use of string sales. Overall, the changes to Incoterms 2010 appear to have succinctly addressed the evolution of trade practices over the past decade while providing continued clarity in the increasingly complex world of international trade.
Are You There, America? Its Me, Section 421
Authors: Togni Patrick J.
Published: March 2022

When China joined the World Trade Organization (WTO), the associated agreements included a transitional product-specific safeguard mechanism to address market disruption caused or threatened by surging Chinese imports. This mechanism is only available until 11 December 2013 or twelve years from when China joined the WTO. The relevant US statute that adopted the safeguard mechanism is commonly referred to as 'section 421'. Under section 421, the US International Trade Commission conducts a market disruption investigation and, if it reaches an affirmative determination, the President decides whether to proclaim a remedy with assistance from the US Trade Representative. Section 421 investigations proceed quickly, and import remedies such as increased duties or quotas may be imposed in a matter of months. President Obama proclaimed import relief for the first time under section 421 in a case involving certain Chinese tires in 2009. With less than two years remaining in the lifespan of this transitional product-specific safeguard mechanism, this article concludes that section 421 remains a useful method for US industries facing injurious Chinese imports to obtain meaningful relief.
Judicial Review of Anti-dumping Determinations in Canada
Authors: McIlroy James
Published: March 2022

This collection of articles analyses the problems with judicial review of trade remedy determinations in ten user countries - Australia, Brazil, Canada, China, the European Union, India, Indonesia, Mexico, South Africa, and the United States - and is a follow-up to similar studies in 2004 and 2007 respectively. Each article succinctly describes the major problems with judicial review in their jurisdictions covering the period from 2001 to 2010 with an aim to examine the effectiveness of judicial review (and/or, where applicable, review by an administrative tribunal) of trade remedy determinations in the light of Article 13 of the WTO Anti-Dumping Agreement. Two problems have been underlined: (1) the excessively long duration of the judicial review procedures; and (2) the considerable deference given to the administrative authorities on substantive issues by the courts typically on account of the technicality of the anti-dumping determinations and the absence of expert judges versed with trade remedy laws. These two problems have deeply impacted the effectiveness of the judicial review systems in most jurisdictions investigated and the situation is far from what is envisaged in Article 13 of the ADA. Both problems are related to the absence of specialized courts and chambers with judges trained in trade remedy laws. In contrast, the United States and India - the only two countries that have specialized courts - have effective judicial review systems. For the ten year period covered by this study, the ten countries investigated can be divided into two groups as regards the recourse to judicial review of anti-dumping determinations. One group comprises the European Union, India, Mexico and the United States where judicial review of anti-dumping determinations has been frequent. The second group comprises the remaining countries namely Australia, Brazil, Canada, China, Indonesia and South Africa where judicial reviews have been more limited. In fact the judicial review systems for trade remedy determinations in countries such as China and Indonesia are in the early stages of development.
The Expiration of Mexicos Transitional Regime against Chinese Imports: The Beginning of a New Trade Era
Authors: Sanchez Manuel
Published: March 2022

Chinese imports have always been a headache for Mexico. Just before China's accession to the WTO, Mexico had a trade deficit of 3.2 billion dollars with China. As of November of 2011, this trade deficit increased to 46.4 billion dollars. Whereas China has improved the quantity and diversity of exports to Mexico -rapidly becoming Mexico's second biggest supplier - Mexico has not taken advantage of one of the biggest markets in the world. In fact, Mexican exports to China have always been a relatively low portion of China's total imports. It is beyond the scope of this article to address why this has happened. Instead, this article will focus on the issues that will arise in the trade relationship between both countries in the near future, especially in the light of the expiration of Mexico's transitional regime that, until 11 December 2011, protected its economy from Chinese imports.
The TBT Agreement Meets the GATT: The Appellate Body Decision in US  Tuna II (Mexico)
Authors: McGivern Brendan P.
Published: March 2022

In US - Tuna II (Mexico), the WTO Appellate Body ruled that the US 'dolphin safe' labelling scheme for canned tuna violated the national treatment obligations of the United States under the WTO Agreement on Technical Barriers to Trade (TBT Agreement). However, it rejected Mexico's claims that the labelling law was 'more trade-restrictive than necessary' to fulfil the US objectives of dolphin conservation.

The decision of the Appellate Body in US - Tuna II (Mexico) and its earlier ruling in US - Clove Cigarettes2 provide a clear indication of the tribunal's interpretive approach to key provisions of the TBT Agreement. Importantly, the Appellate Body has adopted a competition-based approach to determining whether a technical regulation provides 'less favourable treatment' to imported like products. The Appellate Body decisions thus root the national treatment disciplines of the TBT Agreement firmly within the jurisprudence of the GATT.
Market Economy Treatment in EU Anti-dumping Investigations Following the Judgment of the Court of Justice of the EU in Xinanchem
Authors: Melin Yves
Published: March 2022

If we are victorious in one more battle with the Romans, we shall be utterly ruined.
Seizure of Goods in Transit: A GATT Perspective
Authors: Mukherjee Puloma
Published: March 2022

Starting 2008, Dutch authorities began confiscating several shipments of generic drugs bound for developing countries in South America. Most of these shipments originated in India and were seized on grounds of suspected patents and trademarks infringement. However, they were neither protected at the port of origin, nor the destination country. While most debates have surrounded the rights under the TRIPS Agreement, the right to freedom of transit protected under Article V of the GATT has not been given much attention. Considered along with the General Exceptions under Article XX of the GATT, seizure of goods in transit acquires quite a different dimension. This work begins by analyzing the interpretation of Article V of the GATT including an analysis of the special character of the border measures imposed by the EU. It then analyzes the consistency of the border measure and its application with the GATT, 1994 to determine whether, if not the TRIPS Agreement, does the GATT, 1994 grant protection to countries which seek to undertake such measures.
New Directions in the Perennial Struggle to Detect and Fight the Evasion of Antidumping and Countervailing Duties
Authors: Janzen Bernd G. , Broussard Jean-Rene
Published: March 2022

Evasion of antidumping and countervailing (AD/CV) duties by unscrupulous importers is an enduring challenge for the U.S. government. Recent examination by government and private sector entities shows that AD/CV duty evasion may also be an intensifying problem, involving transshipment via third countries, misclassification under the tariff schedule, and other forms of fraud. AD/CV duty evasion deprives the U.S. Treasury of untold millions of dollars of revenue annually and undermines the relief afforded by U.S. trade remedy law to U.S. industries. Evasion should also, however, be of concern to law-abiding U.S. importers whose commercial position may be eroded by cheating importers. A number of bills pending in Congress would buttress the ability of U.S. government entities to combat AD/CV evasion through new powers and procedures. The authors argue that these bills represent a good start, but that meaningful progress in the fight against duty evasion can only come with intensified U.S. government pressure on its trading partners in established international fora and through cooperative mechanisms to fight evasion.
Enhancing the Efficiency of the Panel Process at the WTO
Authors: Jara Alejandro
Published: March 2022

This paper describes the informal consultation process held by the author and his World Trade Organization (WTO) colleagues, aimed at improving the procedures of WTO dispute settlement panels. In this process, government officials as well as a variety of other practitioners, such as panelists, members of the Appellate Body, the Advisory Centre on WTO Law, trade lawyers, among others, were consulted. The aim was to find ideas that could help enhance the efficiency of the panel process and reduce costs. This exercise was limited to possible improvements that could be made without amending the text of the Dispute Settlement Understanding (DSU) itself. Many of the conclusions reached have been successfully applied in proceedings, such as early questions posed by the panel to the parties to make the first substantive meeting more effective, time-limits on oral statements and the reduction of annexes. Other suggestions have yet to be tested in practice, such as double-briefing, which aims to make the first meeting of the Panel with the parties more fruitful, as well as the selection of experts to assist panels and the questions posed to them. This paper should be of assistance if similar consultations are held in the future, thereby playing a part in making small but significant procedural changes to improve the WTO dispute settlement mechanism.
How Canada  Renewable Energy Supports the Use of the Alternative Commercial Reasonableness Standard in Future Feed-In Tariff Disputes
Authors: Laurenza Eugenia
Published: March 2022

In the Canada - Certain Measures Affecting the Renewable Energy Generation Sector and Canada - Measures Relating to the Feed- In Tariff Program disputes,1 Japan and the EU claimed that Canada was subsidizing certain renewable energy generators in Ontario through the use of a feed-in tariff programme. In those disputes the panel and the Appellate Body rejected the proposed market benchmarks during their 'benefit' analyses under Article 1.1(b) of the WTO Agreement on Subsidies and Countervailing Measures. Then, insufficient evidence prevented the dispute settlement organs from completing the analyses using their own ad hoc market benchmarks. Future disputes are at risk of similar unsatisfactory outcomes, especially when distorted markets are present. This article suggests the use of an alternative 'benefit' analysis using the 'commercial reasonableness' standard from EC - DRAMs and Japan - DRAMs when proposed market benchmarks are rejected.
Access to EU Antidumping/Subsidy Confidential Files: The EU Law Zwartveld Sincere Cooperation Doctrine, Surprise What You Are Looking for Already Exists
Authors: Rovetta Davide , Rovetta Davide
Published: March 2022

At the EU level the Administrative Protective Order ( APO) is a long-standing theme which recurs on a regular basis among stakeholders and scholars. Trade Defense Instruments ('TDI's') is namely the area where interested parties are lobbying for the introduction of an APO system. The goal is of course to bring more transparency in the EU anti-dumping and anti-subsidy investigation regime which although appreciable for the quality of the EU officials involved, still leave the door open to criticism due to the lack of access to some information used in the investigation process. The introduction in the EU of an APO system similar to some extent to the one existing in the US could be a great step forward. However, some practical hurdles and a general political discontent in Brussels make the introduction of an APO regime extremely difficult. Not all is lost, however; as it will be introduced in this brief contribution, at EU level it already exists a means to ask for access to a confidential file in the hands of the EU institutions: the 'sincere cooperation' doctrine. The 'sincere cooperation' TEU is based on the doctrine and has been shaped in its scope by the Court of Justice of the European Union (CJEU). It does allow any interested parties via an EU domestic jurisdiction to request in compliance with full mutual respect existing between the EU and Member States, the assistance of the Brussels based institutions in order to access to a confidential file in the hands of the EU Institutions. The 'sincere cooperation' doctrine is not merely theoretical in fact it has been already successfully experimented in a limited number of cases by few trade lawyers. Perhaps, the effective answer to the call for transparency in TDI's is already in the 'EU house' and not in the yard of the neighbours.
Beyond Turkey-EU Customs Union: Predictions for Key Regulatory Issues in a Potential Turkey-U.S. FTA Following TTIP
Authors: Bülbül Onur , Orhon Asli
Published: March 2022

As TTIP negotiations move forward, Turkey's unique position under the Customs Union with the EU forces it to seek ways to conclude a bilateral free trade agreement with the U.S. The key question today is how certain regulatory issues can be addressed in a potential Turkey-U.S. FTA, given the contentious nature of these issues between the two countries. This article begins by analyzing Turkey-EU Customs Union from both market access and regulatory perspectives, by highlighting Turkey's foreign trade policy under this arrangement. The article then focuses on certain regulatory issues and tries to shed light, based on KORUS and Turkey- Korea FTA and several other related documents, on the possible discussions that may arise under a potential Turkey-U.S. FTA.