bluuebunny/crossref_metadata_2025 huggingface dataset:
2016 and the Application of an NME Methodology to Chinese Producers in Anti-dumping Investigations
Authors: Beck Jochen , Ruessmann Laurent
Published: March 2022

There is an increasing focus on what is permissible after 11 December 2016 in anti-dumping investigations involving China. In fact, the initial text of section 15 of China's WTO Accession Protocol will remain largely intact, and not oblige WTO Members to recognize China automatically as a market economy. WTO Members can continue to apply an NME methodology as long as China has not established that it meets the market economy criteria of the importing Member. However, WTO Members will then in addition need to allow individual Chinese producers to prove they operate under market economy conditions.
Assessing the Economic Impact of the Proposed Indian Ocean Rim-Association for Regional Cooperation (IOR-ARC) Preferential Trade Agreement
Authors: Kai Zhou , Ara Laila Arjuman , Rahman Mohammad Masudur , Jiang Qiner
Published: March 2022

A draft text on IOR-ARC Preferential Trade Agreement was negotiated in the Trade Expert Group and latest revision was completed in August 2010. However, before finalizing the Agreement, the parties decided that a feasibility study was required to examine the possible benefits of the proposed PTA. The main objective of this study is to do just this, investigate the economic impact of the preferential agreement. The commutable general equilibrium (CGE) simulations show that if the four high income countries i.e., Australia, Singapore, UAE, and Oman eliminate all tariffs and at the same time middle income countries like Malaysia, Mauritius, Iran, South Africa, Thailand, Indonesia, Sri Lanka, and India successively cut tariffs by 75% and LDCs cut tariffs by 50% respectively, then all IOR-ARC countries except Madagascar could gain welfare significantly. The largest welfare could be gained by India which is around USD 10.8 billion followed by Australia around USD 5.8 billion. Thailand, UAE, Indonesia, Singapore, etc. may also gain under the PTAs. At the same time, exports may increase significantly for all IOR-ARC countries except Madagascar.
Herding Smart Cats: Applying Export Controls on Intangible Transfers of Technology in UK Universities
Authors: Tauwhare Richard
Published: March 2022

Trade controls on software and technology are essential to controls on sensitive goods. But deciding whether the transfer of a particular piece of 'know how' is subject to controls is challenging, particularly when it might be made simply in an email or even, in some cases, face-to-face conversation. These challenges are compounded by decentralized structures, competition for research funds and strong traditions of academic freedom in UK universities. Few of the top twenty-four research universities in the UK have a formal export controls policy in place, underlining the need for renewed efforts1 to develop more, and more practical, guidance for the universities. This article looks at the controls which apply to intangible transfers of technology by UK universities and the challenges in implementing them, and suggests some approaches to achieve compliance in a practical, proportionate way.
An APO System in EU Trade Defence Investigations: No Guts, No Glory
Authors: Fjellner Christofer
Published: March 2022

The lack of transparency remains a major problem in the administration of trade defence instruments (TDI) by the European Union (EU) and the many World Trade Organization (WTO) members that have found inspiration in the EU TDI system. Adoption of an administrative protective order (APO) system, similar to that used by the United States (US) since 1979, seems the only solution to increasing transparency in a meaningful manner.
Causation in Trade Remedy Actions: Problems with the But for Test
Authors: Nedumpara James J.
Published: March 2022

Trade policy commentators have advocated the use of the ‘but for’ test in determining causation in trade remedy investigations. While a ‘but for’ or counterfactual analysis has been fairly common in tort and contract cases, it may not be appropriate in the settings of trade remedy actions. Trade remedy actions often include multiple causes and involve longer periods of investigation. Furthermore, the efficacy of ‘but for’ test in conducting nonattribution analysis is ambiguous. The article argues that a typical ‘but for’ analysis is not susceptible for empirical observation and may require complex economic or statistical analysis, which may not be in the interests of all WTO members.
Users in EU Trade Defence Investigations: How to Better Take their Interests into Account, and the New Role of Member States as User Champions after Comitology
Authors: Melin Yves
Published: March 2022

In EU anti-dumping and anti-subsidy investigations, the European Commission may decide not to impose measures even in the face of injurious dumping or subsidization, on the ground that this would be against the interests of the European Union. This article is an attempt at reviewing and summarizing the rules and discipline governing the use of the union interest, and at presenting the practice of the European Commission. It also critically reviews this practice, and suggests ways of improving the level of cooperation by users and the taking into account of their interests. The role of Member States in relaying and defending the interests of their industry, under the comitology procedure applicable since February 2014, is then discussed.
U.S. Trade Preferences Extension Act (TPEA) of 2015 Could Lead to Increased Use of Particular Market Situation in Calculating Normal Value in Anti-Dumping Cases
Authors: Nicely Matthew R.
Published: March 2022

At the end of 2016, China’s Protocol of Accession (POA) to the World Trade Organization (WTO) will require a change in the way WTO members calculate normal value in anti-dumping (AD) proceedings involving China.1 Although no organ of the U.S. government has officially acknowledged that Paragraph 15 of China’s POA will require the U.S. Department of Commerce (USDOC) to abandon its current non-market economy (NME) surrogate value method for calculating normal value for Chinese respondents post-2016, there is no question that some change in practice must take place in order to comply with the expiration of a key provision of that Paragraph that occurs effective December 12, 2016. Ultimately, it is quite possible that the WTO Dispute Settlement Body (DSB) will interpret the provision as requiring that members subject China to the “default” rules set forth in Article 2 of the WTO Anti-Dumping Agreement (ADA). What remains a mystery, however, is just what those default rules permit in terms of the flexibility afforded to investigating authorities in dealing with economies like China, where the state’s role in the economy remains pervasive, even if to a lesser degree than it was in the past. It will also be interesting to watch how these new rules might be applied to traditionally market economies (MEs) whose governments, although not formerly communist, may be sufficiently involved in a particular market to also justify application of Article 2 in a manner that, to date, has not been widely adopted by USDOC or any other investigating authorities.

These inquiries are not merely the idle musings of the authors, but draw on action already taken by the U.S. Congress and the European Commission. In amendments to its AD laws, known as the Trade Preferences Extension Act (TPEA), passed during the summer of 2015 as part of granting the Obama Administration Trade Promotion Authority,2 the U.S. Congress added language that expands USDOC’s discretion to treat certain transactions as outside the ordinary course of trade (OCOT). Although no legislative history accompanied these amendments, they appear, at least in part, tailored to a post-NME normal value calculation paradigm, in which a respondent’s costs can be disregarded and replaced with an alternative that may well approximate the NME methodology that China hoped would be eliminated as a result Article 15 of its POA. Meanwhile, the European Commission has adopted a practice that uses similar tools—so far only for MEs—where a respondent’s transactions are deemed outside the OCOT. Together, the new U.S. law and recent European action both suggest a movement toward more flexible rejection of AD respondents’ own data and replacement with data that look eerily similar to NME surrogate methodologies—for respondents in any country. But, stay tuned, as these efforts are currently under WTO review, and one dispute settlement panel has indicated that Europe’s practice may have gone too far.
Customs Sanctions Harmonization in Europe: Why the Commission Is Taking the Wrong Approach
Authors: Willems Arnoud , Theodorakis Nikolaos
Published: March 2022

Uniform customs administration remains difficult in the European Union (EU). Since 1979, the European Commission (hereinafter ‘Commission’) has been trying to reduce variability and uncertainty. Most recently, the Commission introduced a proposed Directive defining customs infringements and sanctions. Unfortunately, the proposed Directive seeks too much convergence too soon. It would lead to more infringements and sanctions, while imposing unfair or unclear standards and procedures in determining liability, calculating fines, classifying infringements, and sentencing. A recent draft report from the European Parliament addresses only some of these concerns. The Commission would do better to seek gradual ‘approximation’ of customs administration rather than aggressive ‘harmonization.’
Why the European Union Must Dump So-called Non-market Economy Methodologies and Adjustments in Its Anti-dumping Investigations
Authors: Noël Stéphanie
Published: March 2022

There is a growing controversy on the expiry of the provisions on the special treatment of China for anti-dumping purposes in its Protocol of Accession to the World Trade Organization (WTO). Actually, there is no legal basis in the Protocol for the continuing application of such special treatment after 11 December 2016; the so-called ‘non-market economy status’ put forward by its advocates is a myth. The European Union (EU) should remove China from its non-market economy status list and refrain from taking ‘mitigating measures’ aiming at offsetting the effects of any kind of State interference, which is inconsistent with the letter and spirit of the WTO anti-dumping rules.
The European Unions Options for China Dumping Methodology After 11 December 2016
Authors: Searles James
Published: March 2022

The European Commission has acknowledged that the 2001 Protocol on China’s accession to the WTO authorizes the EU’s current NME method of calculating anti-dumping duties on imports from China only for 15 years, i.e., until 11 December 2016. The EU’s anti-dumping Regulation must now be amended, but it appears difficult politically to let go of rules that normally give rise to significantly higher dumping duties than the ‘standard’ WTO anti-dumping methodology. Based on its consultation documents, the Commission’s proposal to amend the Regulation, most recently promised by ‘end of 2016’, is expected to newly apply the standard methodology to China but only if accompanied by various ‘mitigating’ measures to lessen any negative impact. On-going WTO litigation on the flexibility of the standard methodology to redress unreasonably low producer/exporter prices resulting from Government interventions in the market may be crucial to political acceptance or not of the Commission’s proposal.
Koreas Customs Valuation Method for Transaction Value Between Related Parties
Authors: Cho Jeong Cheol
Published: March 2022

Similar to the World Trade Organization (WTO) Customs Valuation Agreement, the Korean Customs Act provides that if the seller and buyer are related parties, the transaction value is examined in order to verify whether the special relationship affected the transaction value, and in the case the special relationship did have an effect on the transaction value, subordinate methods have to be applied while rejecting the transaction value in the customs valuation. The method of verification, such as the ‘analysis of circumstances of transaction’ and ‘test price method’, is used in order to verify whether the special relationship affected the transaction value. The ‘analysis of circumstances’ refers to an examination of the circumstances of sale, and the special relationship is viewed as not having effect on the price under some circumstances such as where the price of the relevant goods is determined using the pricing method ordinarily adopted by the buyer and the seller having no special relationship. The ‘test price method’ refers to a method where the special relationship is viewed as not having effect on the price if the transaction value closely approximates to the test price (such as uncontrolled transaction value for identical or similar goods).
Addressing the Challenges Facing the Use of E-Signatures Within the ASEAN Single Window
Authors: Ndonga Dennis
Published: March 2022

On December 2005, the ASEAN member states passed the ASEAN Single Window (ASW) Agreement which paved the way for the implementation of a regional single window system that would integrate the members’ National Single Window (NSW) systems. This regional system is expected to facilitate trade within the ASEAN Economic Community. However, the successful operation of these systems largely depends the presence of a legal framework that would support the cross-jurisdictional recognition of members’ electronically authenticated documents that are exchanged between the NSWs and ASW. This article explores the role of e-signatures in single window operation, and assesses the challenges facing the cross-jurisdictional recognition of e-signatures under the ASW.
Meeting the Challenges of Customs Compliance in a Post TFTEA and Reinvigorated Trade Enforcement Environment
Authors: Bell Sandra L.
Published: March 2022

In the international trade environment, basic import issues have always presented challenges for customs compliance because each import issue represents a distinct custom law discipline. For importers into the U.S., compounding the pre-existing challenges are the enhanced enforcement tools enacted in 2016 under various provisions of the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), which is now being fully implemented by U.S. Customs and Border Protection. This article examines through self-assessment questions, how trade compliance risk assessment can be used by companies to confront the increased customs compliance challenges in a reinvigorated U.S. trade enforcement paradigm.
How to Define Public Morals in WTO Law? A Critique of the Brazil - Taxation and Charges Panel Report
Authors: Du Ming
Published: March 2022

The Brazil – Taxation and Charges panel report has rekindled a long-standing debate over the scope and meaning of the public morals exception in the GATT/WTO legal system. This article offers two criticisms of the panel report. First, the report has set an exceedingly low threshold for the identification of public morals. Second, the Panel ’ s hands-off approach is likely to trigger a slippery slope risk of what sorts of objectives could be properly called ‘ public morals ’ .
Foreign Investment Control Heats Up: A Global Survey of Existing Regimes and Potential Significant Changes on the Horizon
Authors: Rafferty Sara , Kaniecki Chase
Published: March 2022

Mergers and acquisitions by multinational companies require attention to foreign investment controls around the world, and such controls vary widely. For example, the requirements for determining whether such controls apply, the areas/industries of focus, and the notification/review process differ by jurisdiction. In addition, potential significant changes to foreign investment controls are looming. Ultimately, information available in the various jurisdictions surveyed suggests that it is relatively rare for foreign investments to be blocked or abandoned due to foreign investment controls.
New Digital Infrastructure, Cross-Border E-Commerce and Global Vision of Creating Electronic World Trade Platform
Authors: Duan Yan , Ma Shuzhong , Chai Yuxi , Wang Jinmin
Published: March 2022

The rapid development of cross-border e-commerce has integrated with the global economy more closely in the past decade. How to create global digital customs to facilitate cross-border e-commerce on the basis of national Single Window system has become an important task for national governments and international organizations such as World Customs Organizations? The article aims to explore the relationship between technological progress, cross-border e-commerce and the establishment of global digital customs from the dimensions of the latest development of new digital infrastructure, national Single Window system and global vision of creating Electronic World Trade Platform (eWTP). It is argued that cross-border e-commerce platforms, national Single Window and eWTP, all of which are indispensable for the establishment of global digital customs, have close linkages in business regulation, data sharing and information exchange. The establishment of global digital customs requires global governance through the joint efforts by firms, national governments and international organizations.
Assessing the Determinants of Customs-Related Transaction Costs in Turkey
Authors: Yanikkaya Halit , Koral Zeynep Aktas
Published: March 2022

Growing world trade puts forward the importance of trade liberalization and facilitation issues. As trade liberalization efforts of both governments and international organizations have mostly been successful, the importance of bureaucratic and informal impediments to international trade has been increased. An important part of these impediments is generally composed of complicated customs procedures and documentation requirements that generate the principal part of customs-related transaction costs. In this study, we examine the role of several factors in the determination of customsrelated transaction costs, especially the waiting time to clear the cargo already in some Turkish ports. We evaluate the following determinants of customs-related transaction costs such as complexity of customs procedures, customs personnel, obtaining certificates of conformity/approval or laboratory analysis, firm size, implementation and integration of computerized systems, and country of origin. We find that these six factors exert their effects on customs-related transaction costs either through affecting customs risk analysis or through affecting the clearance time (even in the same line).
The Continued Quest for a Single Set of Rules for Two Economic Systems: Addressing Significant Distortions Arising from State Influence
Authors: Geraets Dylan
Published: March 2022

The multilateral trading system is at a cross-roads. Current trade tensions are another reflection of the quest for a solution to the problem of how to regulate trade between ‘market economies’ and ‘planned’ or ‘controlled economies’, i.e. economies with a more substantial degree of state influence. This contribution considers whether the EU’s new non-standard methodology and the new State-Owned Enterprise disciplines in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership may provide a starting point for new discussions in this regard. Although WTO panels and the Appellate Body can delineate the limits of current disciplines, the solution to the problem will have to be negotiated between the major trading powers of this era.
Not Quite There Yet: The Ongoing Quest for a Deep Procedural Reform of EU Trade Defence Instruments
Authors: Masi Lorenzo Di
Published: March 2022

Despite the key role played by trade defence instruments (TDI) in EU trade policy, EU TDI investigations currently lack a solid procedural framework for the guarantee of the rights of interested parties. While the European Commission has already adopted some steps aimed at improving TDI proceedings, key issues like access to confidential information and full transparency have not been properly addressed yet.

In the field of access to confidential documents, new political momentum for a reform could be found only to the extent that complainants are fully convinced of the benefits arising from such system for their cause. With respect to transparency, practical options appear to be available in the short term which could render TDI proceedings more streamlined and fair.
Customs Valuation and Import VAT
Authors: Bieber Thomas
Published: March 2022

The determination of the taxable amount for import taxation is determined by customs law. Article 85 of the Valued-Added Tax (VAT) Directive contains a dynamic reference to the customs valuation provisions of the UCC, the UCC-IA and the UCC-DA. From a VAT point of view, the details of customs valuation are particularly relevant if the importer is not entitled to full input tax deduction. This concerns imports by private individuals, small entrepreneurs as well as cases where importers are required to pay VAT but are denied the right to deduct due to a lack of control over the goods.
Customs and Humanitarian Logistics
Authors: Ahsen Saad Raafay , Rundle Jamie M.
Published: March 2022

Motivated by concerns about the impact of trade and customs procedures upon humanitarian logistic operations, this article seeks to open a new chapter in the relevant literature. It builds on three case studies, each of which is a household name within the humanitarian space and has been developed with the support of key informants in those organizations. The analysis of the case studies shows how customs considerations impact upon the entire relief chain. A review of relevant literature and documents provides the necessary context. A list of recommendations, which have been identified in consultation with research participants and are based on established ideas in contemporary trade facilitation policy, is offered. Further dialogue between customs and humanitarian logistics practitioners is keenly encouraged.
Lack of Certification of the WTO Goods Schedules of the United Kingdom: A Way for Frictionless Trade Under No-Deal Brexit?
Authors: Kim Jin Woo
Published: March 2022

The United Kingdom (‘UK’), as a Member State of the European Union (‘EU’), does not have its own schedule of concessions under the World Trade Organization (‘WTO’) – for now – because the EU, as a single customs union, has consolidated schedules for goods and services. The UK is currently negotiating its schedules with other WTO Members, but time is running short ahead of the UK’s scheduled exit from the EU on 31 October 2019 (‘Brexit Date’). If the UK fails to certify its schedules before the Brexit Date, the question becomes whether the UK could unilaterally establish its new schedules and conduct trade based on ‘uncertified’ schedules that have not been agreed by all WTO Members.

The panel in EU – Poultry (China) found that certification of a schedule is not a legal prerequisite to implement agreed-upon changes in negotiations under Article XXVIII of the General Agreement on Tariffs and Trade 1994 (‘GATT’) at the national level. Based on the panel’s finding and Article XXVIII:3 of the GATT, under a no-deal Brexit scenario, the UK would be able to unilaterally establish its goods schedule, even in the absence of agreement with other Members. Further, the UK could enforce the new schedules before completing the certification process and, thus, trade under the uncertified goods schedule.

However, three caveats must be noted: (1) the UK must certify its new goods schedule eventually; (2) unlike the goods schedule, the completion of certification is necessary for the UK to give effect to its new services schedule; and (3) if another Member brings a complaint concerning the UK’s uncertified schedules, and the dispute results in an appeal, the Appellate Body may reach a different conclusion when applying the panel’s decision in the context of Brexit.

In short, the UK must certify its goods schedule as soon as it concludes Article XXVIII negotiations with other WTO Members. The Poultry panel’s decision does not support a way for frictionless trade between the UK and other countries under no-deal Brexit.
Anti-dumping Off the Rails: The European Unions Practice to Alleged Input Dumping
Authors: Wüstenberg Moritz
Published: March 2022

For several decades the EU has adjusted the normal value of certain goods in anti-dumping investigations upward, consequently increasing the applicable anti-dumping duties, based on assertions of raw material input dumping in the country of export. Typically adjustments are founded on the assessment that raw materials are sold at a lower price in the domestic market as compared to export sales through so called dual pricing schemes. In the case of certain imports from Russia to the EU, adjustments to normal value are usually based on the premise that energy intensive industries in Russia benefit from input dumping of natural gas. Following its accession to the WTO, Russia has challenged the EU´s practice for violating the EU´s WTO obligations.

 

In the review of its trade defence instruments in 2018, the EU reinforced mechanisms to reprimand alleged input-dumping, despite earlier findings by the WTO dispute settlement body that adjustments for the cost raw material inputs are generally not permitted. In this article it is argued that the EU´s practices are problematic also in relation to cost adjustments based on alleged energy input dumping. Next to the circumstance that WTO rules and jurisprudence do generally not support this practice, the EU´s current approach selectively discriminates against alleged energy input dumping in certain countries, potentially violating not only anti-dumping rules, but also rules of non-discrimination.
The Compatibility of Arab Laws and Modern International Trends with the Freedom of Parties to Choose the Law Applicable to International Trade Contracts
Authors: Madi Ramzi , Enizi Ziad Al
Published: March 2022

This article deals with the compatibility of the Arab laws and modern international trends represented in the principles of The Hague Conference (2015), on the freedom of the parties to choose the law applicable to international trade contracts in two sections. The first indicates the compatibility of an international issue; whereas the second section tackles discrepancies and contrasts in the scope of the freedom granted to the parties to choose law through the study of four axes: the extent of freedom in the selection of legal rules that disregard the legal system of any state, the extent of the link between the law selected, the parties, contract, the forms of choice, and the issue of the ability to modify the choice of contract. It concludes with the results of the differences between the Arab laws and the latest international trends in this regard, together with recommendations for Arab legislators to keep up with the legislative developments in this regard.
The EU’s Request for Arbitration Under the EU-Ukraine Association Agreement
Authors: Dolle Tobias , Medina Lourdes
Published: March 2022

On 20 June 2019, the European Union’s (EU’s) Delegation to Ukraine submitted a Note Verbale to the Ministry of Foreign Affairs of Ukraine requesting ‘on behalf of the European Union, the establishment of an arbitration panel pursuant to Article 306 of the Association Agreement of 21 March 2014 between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part’. The dispute concerns Ukraine’s export restrictions on timber and unsawn wood of certain species, as well as on unprocessed timber of all species, for a period of ten years. While the restrictions appear to be legally difficult to justify for Ukraine, the more interesting and noteworthy element to this dispute is that it is the first trade dispute that the EU is pursuing under a bilateral preferential trade agreement, even though it relates to disciplines that mirror World Trade Organization (WTO) rules and could as well be pursued in the framework of WTO dispute settlement. The article reviews the case and discusses the significance and the EU’s deliberate choice of dispute settlement within the context of the trade agreement.

Trade law, EU trade law, Trade dispute, International trade dispute settlement, Trade Agreements, Dispute Settlement, Arbitration, WTO Dispute Settlement, Export restrictions, Forum clauses
EU-ACP Economic Partnership Agreements: Taking Them Forward
Authors: Micallef Jan A.
Published: March 2022

This article aims at looking at the current state of play of the EU-ACP Economic Partnership Agreements (EPAs) and explore the best way in which they can be taken forward. In this regard the article will try to evaluate the EPAs in a collective fashion, first by looking at their present state of play and then by evaluating the best options for the future. Further to the latter element, the article will note that the options should come in the form of three actions, namely: (1) implementing the current agreements better; (2) widening their membership; and (3) deepening them from a subject matter perspective. At the end the article will also briefly note a main flanking measure that would need to be pursued in tandem with these three actions. This measure would constitute helping African, Caribbean and Pacific (ACP) countries develop their productive capabilities so that they can exploit the opportunities that the EPAs offer and will offer in the future. The article will then try to draw a number of conclusions for a way forward.

EPA, ACP, EU, development, Africa, Caribbean, Pacific, economic, partnership, agreement
Rules of Origin and the FTAs: Major Issues in India
Authors: Kumaran V. Lakshmi
Published: March 2022

Free Trade Agreements (FTAs) feature heavily in the contemporary global trading system and these are popular form of reciprocal arrangements between nations. Over the past years, an unswerving increase has been observed in the multilateral and bilateral trade agreements contracted by nations and trade blocs around the world. This surge in FTAs is experienced as most nations around the world rely upon these agreements to facilitate trade and investment amongst them.

India, like most of the WTO members, has contracted and executed several FTAs. Each FTA provides for rules to determine origin of goods to ensure that benefits of the FTA are extended only to those goods which are originating in a contracting party. Preferential Rules of Origin under the FTAs provide for criteria such as wholly obtained test, minimum value addition test, tariff jump etc. to determine origin of goods.

However, due to varying criteria of origin with respect to minimum value addition and tariff jump etc. coupled with lack of standard provisions, for instance, of third country invoicing, under the different rules of origin, there is a lot of confusion and conundrum around the rules of origin in India.

This article attempts to provide a brief analysis of various criteria laid down to test origin of goods under rules of origin for FTAs and major challenges faced with respect to these rules in India.
Vietnamese Exporters in the Midst of Rules of Origin Under FTAs
Authors: Le Giang , Bui Hanh
Published: March 2022

Vietnam is involved in many trade agreements as well as is the beneficiary of many trade preferences. However, these benefits do not come automatically. Vietnamese exporters have to follow the rules of origin (ROOs) set forth by each and every of the trade agreements to prove their eligibility to the lawful privileges. As each agreement has different requirements, Vietnamese firms are seen perplexed in the maze of rules before they can reach the prize of trade preferences. This article briefly discusses the prevailing rules of origins facing Vietnamese firms and some issues in implementing such rules in Vietnam.

rules of origin, FTA, preferential tariff, certificate of origin, self-certification, preference utilization, electronic certificate of origin, Vietnam, ASEAN
Proving FTA Preferential Tariff Eligibility: The Evidentiary Burden in Canada
Authors: Clément Jean-Marc
Published: March 2022

As is the case with most free trade agreements, importers simply claim preferential tariff eligibility at the time of import. This claim can later be subject to verification by the customs administration in view of determining if it was valid. Proving preferential tariff entitlement requires assembling and presenting relevant facts and documents that support the claim. But just how much evidence is necessary in order to discharge that burden? In Canada there has always been a disconnect between what the Canada Border Services Agency (CBSA) deems necessary in the course of an origin verification and what the courts find satisfactory in the course of a judicial review. What follows are certain illustrations of that disconnect and how it usually gets resolved by Canadian courts.

Origin verification, judicial review, NAFTA, burden of proof, non-originating status, eligibility considerations, evidence
Rules of Origin in the Mercosur–UE Agreement
Authors: Arnolt Paola , Cepeda Horacio
Published: March 2022

Preferential rules of origin have increased with the proliferation of trade agreements between two or more countries. They are regarded as instruments that allow privileged market access.

Following the evolution of these rules in Mercosur and the ones negotiated in the Mercosur–UE Agreement we will focus in certain sectors to suggest that these guidelines are crucial in the negotiation process as they reflect a definition of economic policy, productive development and commercial integration.

Mercosur, European Union FTA, ALALC, ALADI, Accumulation, Automotive Sector, Vehicles, Beverages, spirits and vinegar, Footwear, preferential rules of origin
Circle of Debtors on Importation Defined: Without Responsibilities No Liability
Authors: Chao Petra
Published: March 2022

Article 77 of the Union Customs Code (UCC) sets out the chargeable event giving rise to a customs debt on importation, when it occurs and who is liable. This article discusses in depth the circle of debtors, in particular the persons providing false information of which they knew or should have known that the information was false and based on that information customs declarations have been drawn up due to which import duties have (partially) not been collected.

Article 77 UCC sets out the chargeable event giving rise to a customs debt on importation, when it occurs and who is liable (Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code). This provision is of utmost importance as it directly impacts the relation between customs authorities and international traders and thereby influences international trade. If the application of this provision is predictable, because the provision is clear, international traders can sufficiently assess their trade risks inherent to importing goods into the European Union (EU). Such legal certainty is beneficial for the economic development of the EU. It is in the interest of both customs authorities and persons dealing in international trade that such a fundamental provision is clearly defined. But that does not seem to be the case as will be argued in this article. Who is liable has required (and perhaps still requires) clarification by the European Court of Justice (ECJ). This contribution attempts to provide an overview of the circle of debtors.
GATT Article XXI as a Way to Justify Food Prohibitions Adopted as a Response to COVID-19?
Authors: Lapa Viktoriia
Published: March 2022

The current pandemic, coronavirus disease-2019 (COVID-19), pushed some countries to adopt export prohibitions on medical devices, protective gear and foodstuffs. Since most of such restrictions would be contrary to WTO Members’ commitments under General Agreement on Tariffs and Trade (GATT) Article XI, the question arises how to justify them. While most scholars concentrate on public health and general exceptions, i.e. GATT Article XX (b), we should not overlook the national security exception under GATT Article XXI. This article discusses the possibility to justify food export restrictions in light of GATT Article XXI (b)(iii) as interpreted by the Panel in the Russia-Traffic in Transit case. Given the flexibility of GATT Article XXI (b)(iii) terms and the larger deference awarded to WTO Members, it appears to be an attractive tool to justify certain export prohibitions in view of the global pandemic. In particular, this article will discuss whether food security can be framed as a national security interest, as well as whether COVID-19 can be considered an emergency in international relations under GATT Article XXI(b)(iii).

national security exception, pandemic, COVID-19, food security
Balancing Disclosure and Access to Documents in EU Trade Defence Investigations
Authors: Kuplewatzky Nicolaj
Published: March 2022

The European Union’s founding treaties recognize the need for a balancing exercise between protective interests and the principles of openness, transparency, and the right of access to documents. Nowhere is that balancing exercise as evident as in the field of trade defence investigations. There, primary EU law principles meet the restrictions arising from the Union’s international law obligations under the WTO Agreements as well the sectoral EU law system of protection of confidential information. What is more, to-date, the Court of Justice of the European Union is yet to provide guidance on how that system should be untangled. This article assesses the interplay between those (at first sight competing) frameworks. In so doing, it will look at the intricacies of the law surrounding EU trade defence investigations and the public right of access to information under Regulation (EC) 1049/2001. Guided by the case-law in those areas and other fields of EU law, the article will discuss how that interplay of rights and restrictions should be resolved if and when the issue is put before the General Court or the European Court of Justice.

Trade defence, disclosure, rights of defence, access to documents, Regulation (EC) 1049/2001
Lessons from COVID-19 Stress Test: Filling the Gaps in Rules of Origin Provisions
Authors: Ashour Sara
Published: March 2022

Times of crisis are a true test, not just for individuals but also for our supply chains, economic structures, and legal frameworks testing their resilience and inclusivity. The Coronavirus Disease pandemic was the latest reminder after several epidemics in the last decades highlighting the importance of preparedness. Free Trade Agreements (FTAs) are intended to provide privileges to trading partners through lessening their paperwork, easing their trade, and thereby fostering interconnected supply chains. Despite their increasing number, they have not lived up to these expectations throughout times of crises. During the 2020 pandemic ‘stress test’, global trade practices have revealed critical gaps within these agreements, mainly relating to information access, burdensome administrative procedures, and lack of effective coordination hindering the transfer of goods. With a lens towards crisis preparedness, this article reviews the utility of existing preferential rules of origin provisions within African and European contexts. By analysing these missed opportunities within some provisions, it seeks to provide recommendations to future-proof FTAs and mitigate challenges experienced by traders in times of crises.

Rules of Origin (RoO), Paperless trade, Trade Facilitation, Free Trade Agreements (FTAs), COVID-19, Building back better
Reflections on Developing Countries’ Initiation of Disputes in the WTO Dispute Settlement System
Authors: Shraideh Saleh Al
Published: March 2022

The establishment of the World Trade Organization (WTO) has presented a major improvement in international trade liberalization to the benefit, as claimed, of all its members. Such improvement is reflected in the comprehensive legal framework of the WTO trading system, which is based on detailed rules regulating various aspects of international trade, and a dispute settlement system ensuring the implementation of such rules and safeguarding rights and interests associated with the system’s membership.

Each of these two elements complements the other. The dispute settlement system needs to be based on comprehensive rules that provide a clear detail on members’ rights and obligations, and such rules are useless in the absence of an effective dispute settlement process that guarantees the protection of members’ rights and the enforcement of their obligations.

The efficiency of the WTO dispute settlement system is not only measured by its mechanism’s detail and strictness, but also by its accessibility and ability to accommodate the different positions of all WTO members in a way that ensures an optimal utilization of the system. Developing countries are still struggling in accessing the WTO dispute settlement system and reinstating their violated WTO-protected rights and interests, which undermines not only the integrity of the dispute settlement system, but also the whole organization.

This study focuses on the participation of developing countries in the WTO dispute settlement process, outlining the main issues that affect such participation. In doing so, the initiation stage, where countries make the decision to participate or not, is going to be the focus, as it provides a clear indication on the general position of developing countries in the process of dispute settlement in general.

WTO, Dispute Settlement, Developing Countries, Developed Countries, Initiation Stage
Export Compliance in Italy: Dual-Use Items
Authors: Zentai Alida
Published: March 2022

Constantly changing regulatory framework and recent restrictions render it more important than ever for private companies and for research institutions to dedicate more attention and to invest in trade compliance. The present document aims to provide insight into the current legislative measures applicable in Italy to the export of dual-use items.

export, trade, dual-use items, compliance, regulation, license, export control, internal compliance program
Significant Distortions Under Article 2(6a) BADR: Three Years of Commission Practice
Authors: Van Vaerenbergh Pieter , Reinhold Philipp
Published: March 2022

The EU’s autonomous trade policy has recently been updated to increase its resilience and to seek to establish a level playing field. Already in 2017 and 2018, anti-dumping law was reformed for this purpose. The 2017 reform introduced a new exception to the primary method for determining normal value. According to the new Article 2(6a) of the Basic Anti-Dumping Regulation, the actual sales price in the exporting country is to be rejected if there are ‘significant distortions’. Whereas much has been written about whether this new methodology is compatible with WTO law, this article analyses how this provision has been applied by the European Commission during the first three years since its introduction.

Anti-Dumping, Significant Distortions, State Capitalism, European Commission, Constructed Normal Value, Third Country, Input Prices, China, Russia, Trade Defence
Interactions Between Trade and Climate Governance: Policy Options and Innovative Ways Forward Through Climate Clubs
Authors: Monkelbaan Joachim
Published: March 2022

This article attempts to answer the question ‘What could be the role for trade in achieving the goals laid down in the Paris Climate Agreement?’ This article explores the interactions between the trade and climate change regimes, their specific interactions, and innovative ways forward in the context of global governance.

Sections 1 and 2 of this report first assess the numerous linkages between trade and climate change including at the policy level. Chapter 3 then systematically assesses the main policy options for making trade more supportive of climate action. The report then investigates the rationale, benefits, and challenges for climate clubs in Chapter 4.

trade, climate change, response measures, fossil fuel subsidies, environmental goods and services, border carbon adjustments, climate clubs, carbon market clubs, WTO, UNFCCC
Introduction: A Special Issue on Trade and Africa
Authors: Dias Anna
Published: March 2022

Angola, customs, trade, enforcement
Regional Integration: Whither the Arab Free Trade Area?
Authors: Malkawi Bashar H.
Published: March 2022

The economic integration sought by Arab countries has been a merely aspirational one. Arab countries have not risen to the challenges posed to it by their unique circumstances. Instead, Arab countries have failed to develop the strength that would be conferred by economic integration.

My inquiry will assess why, many decades after first attempts of economic integration, Arab countries have not been more successful in emulating the success of the European Union, a paradigm of successful economic integration. Specifically, I will explore obstacles to Arab economic integration and address the political and economic factors that play a role to achieve this goal. The central hypothesis of this paper is that there must be fundamental structural changes in Arab economic integration agreements. Effective dispute resolution mechanism and few opt-out provisions speak to a greater will to commit to integration. Arab countries must confront internal dissension and lack of implementation.
The Most-Favoured-Nation Principle in the EU
Authors: Engsig Sørensen Karsten
Published: March 2022

This article analyses the question whether the most-favoured-nation principle applies within the EU and, if so, to what extent. The most-favoured-nation principle implies that Member States are not allowed to discriminate between goods, persons, etc. from different Member States. In the D case and again in the ACT case, the ECJ decided that the most-favoured-nation principle cannot be applied where differences of treatment are due to differences in the double taxation conventions between the Member States, but at the same time, the ECJ opened up application of the principle in other situations. Furthermore, the most-favoured-nation principle found in the WTO agreements also have an influence on the application of the principle in the EU.
Commonalities and Differences between the Transatlantic Approaches Towards WTO Law
Authors: Karayigit Mustafa T.
Published: March 2022

The paper examines in a comparative manner the approaches taken towards WTO law by the American and European legal orders in order to explore the core reason behind the European approach. The European approach to WTO appears unique compared with its general approach towards international law, in particular for international agreements concluded by the Community. The paper argues that the selective and pragmatic American approach, both legislative and judicial, towards WTO law have strongly influenced the judiciary on the other side of Atlantic to configure a selective and pragmatic judicial approach as well.
National Procedural Autonomy and Effectiveness of EC Law: Challenge the Charge, File for Restitution, Sue for Damages?
Authors: Wattel Peter J.
Published: March 2022

This article addresses whether EC law provides access to (civil) tort proceedings for interested parties, especially taxpayers, who failed to use all remedies available to them under national administrative law (especially applying for or appealing administrative decisions) to plead incompatibility of substantive national law with EC law, solely because they expected (rightly so, on the basis of substantive national law) to be turned down by the national authorities. It tries – but does not succeed – to suit, a.o., the Thin Cap Group case to the Arcor & i-21 cases & the AssiDomän Kraft case.