bluuebunny/crossref_metadata_2025 huggingface dataset:
Failures in Remuneration Policies: The Rise of Shareholder Responsibility?
Authors: Laurell Alexandra
Published: March 2022

Remuneration policies within a corporate governance context are a widely discussed topic among scholars, practitioners and governmental organizations and particularly in the wake of the latest financial crisis. Remuneration systems are primarily introduced to mitigate the problems arising from the separation of ownership and control. However, the growing amount of institutional shareholders seems to result in anomalies when remuneration policies are established. In the light of new self-regulative initiatives, it appears as if institutional shareholders need to take a more extensive responsibility on behalf of their beneficiaries whom they ultimately serve.
A Settlement Forum for Stock Quoted Companies and Shareholders Claiming Damage: To Which Extent Does It Create Res Judicata?
Authors: Werlauff Erik
Published: March 2022

This article analyses the Dutch group settlement model from a company law and capital market law perspective. The author considers this so-called WCAM procedure primarily as a forum and an instrument for companies in Europe and shareholders claiming damage caused by the company's insufficient information to the market. The article focuses on important questions for the Dutch settlement model, i.e., questions of jurisdiction, notification and legal effect of the settlement
A Confidence Trick: Ex Ante versus Ex Post Frameworks in Minority Investor Protection in the UK
Authors: Chiu Iris H-Y
Published: March 2022

The tenet of minority investor protection is usually accepted to be in the form of ex post civil litigation in company and securities laws. However, in the UK, and possibly in much of the EU, the legal frameworks in ex post investor litigation in company and securities law exist as law in books rather than in action. This paper examines the 'confidence trick' maintained by the UK in providing for legal frameworks for ex post investor protection which are hardly used. It argues that investor confidence in the integrity of corporate governance and the securities markets is really maintained by inter alia the role of ex ante forms of shareholder participation in the corporate governance of publicly traded companies.
Integrated Reporting for Sustainable Companies: What to Encourage and What to Avoid
Authors: Villiers Charlotte
Published: March 2022

This article explains the concept of integrated reporting as a sustainable development mechanism. It warns against capture by market actors and urges greater involvement of stakeholders, NGOs and civil society in the development of the framework for integrated reporting. A system of assurance is also required.
MiFID II: New Governance Rules in Relation to Investment Firms
Authors: Mellenbergh Rik
Published: March 2022

The European Parliament and the European Committee proposed a new 'Markets in Financial Instruments Directive' (MiFID II) in order to replace the Directive 2004/39/EG (the MiFID framework directive (MiFID I)) recently. The EP and EC also proposed a new MiFID II-Regulation. MiFID II stipulates rules with respect to providing services in financial instruments by banks and investment firms, as well as the operation of regulated markets by market operators.
The ESAs Board of Appeal as a Blueprint for the Quasi-Judicial Review of European Financial Supervision
Authors: Lamandini Marco
Published: March 2022

The ESAs Board of Appeal is a joint body of the three Authorities that displays quasi-judicial functions ensuring internal enforcement of the rule of law within the Authorities and a final administrative review process for appeals relating to the ESAs decisions. It also works as a de facto filter for the ECJ, which retains however full competence over the legitimacy of the Acts adopted by the Authorities under Article 263 TFEU.
Non-intermediated Securities: A European View on the Draft UNCITRAL Model Law on Secured Transactions
Authors: Keijser Thomas
Published: March 2022

A major challenge for the drafters of the UNCITRAL Model Law on Secured Transactions would seem to be the coordination with EU legislation that is relevant to securities. In particular, the current text of the draft Model law does not reflect the fundamental distinction made in the EU Financial Collateral Directive between transactions involving securities that enhance liquidity in the financial markets and other types of securities, resulting in distinct legal regimes in the European Union.
Accounting for Risks in Banks: The Link between Prudential Regulation and Accounting in Banks
Authors: Kashyap Shruti R.
Published: March 2022

In light of the broader prudential concerns that continue to shape the international financial landscape, this article illustrates two key aspects of the link between financial regulation and accounting for risk in banks. First, it emphasizes the function of capital and liquidity in banks, particularly in context of the different risks and vulnerabilities that banks face. Second, it identifies some important evolutions in accounting standards and prudential oversight of financial institutions.
Corporate Law Development in Ukraine: From Post-Soviet Past to European Future
Authors: Romashchenko Ivan
Published: March 2022

Since the adoption of the Law of Ukraine On Business Associations in 1991 through the 2003 Civil Code of Ukraine and the 2008 Law of Ukraine On Joint-Stock Companies, the corporate landscape has changed immensely. The new laws on corporate law and governance in Ukraine are designed in accordance with the Concept of the Corporate Law Reform and considered as steps to approximate Ukrainian company law with European standards.
The Role of the EU Directive on Non-financial Disclosure in Human Rights Reporting
Authors: de Roo Koen H.M.
Published: March 2022

The Directive on non-financial disclosure constitutes the most recent step taken by the EU to enforce a corporate responsibility to respect human rights. Large public-interest entities are obliged to report on how the company discharges itself of this responsibility. The mandatory reporting requirement represents a move in the right direction, but should be viewed without disregard of its shortcomings.
Free Movement of Companies under the New EU Free Trade Agreements
Authors: Engsig Sørensen Karsten
Published: March 2022

The European Union (EU) has recently concluded a number of ambitious Free Trade Agreements (FTAs) that inter alia include the right to make establishments. Based on the agreements concluded with Korea, Singapore and Canada, it is examined to what extent these agreements secure a free movement of companies that is comparable with the free movement of companies that has been achieved within the EU.
Piercing the Corporate Veil in Haitian Poisoning Affair Rejected in First Instance: German HELM AG Not Found Liable under Dutch Corporate Law
Authors: Bartman Steef M.
Published: March 2022

In its award of 15 July 2009 the Florida Court of Appeal (Third District) ruled that Florida Courts had jurisdiction over a parent company (HELM), but not over its Dutch subsidiary company (Vos) that had caused severe damage in Haiti. Vos had purchased glycerine from China and, although the glycerine was impure and tainted, it had proceeded to sell the glycerine to one of its customers in Haiti after affixing false labels to it. In its judgment of 2 July 2015, the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County declined to pierce the corporate veil under Dutch law and to hold HELM liable for the ‘despicable’ alleged actions of its subsidiary. In March 2016 an appeal has been lodged against the Court’s award with the Florida Court of Appeal (Third District).
The European Union Regulation on Insolvency Proceedings (Recast): The First Commentaries
Authors: Wessels Bob
Published: March 2022

This contribution combines some notes on the ‘new’ Insolvency Regulation, of which the text was approved mid 2015, with a review of two books, written in English, which were published in the first months of 2016 discussing this text: Reinhard Bork and Renato Mangano, European Cross-border Insolvency Law, and Gabriel Moss, Ian F. Fletcher and Stuart Isaacs (eds.), The European Union Regulation on Insolvency Proceedings.
The Convergence of Law: The Finnish Limited Liability Companies Act as an Example of the So-Called Americanization of European Company Law
Authors: Pönkä Ville
Published: March 2022

The convergence of law is a widely discussed and researched phenomenon. In company law the convergence problemacy has often been linked to the so-called Americanization of law which is understood as a phenomenon where foreign law is influenced by American (state or federal) law. Quite often this topic has been approached from a ‘macro’ perspective which leaves some of the research findings somewhat abstract and general. Therefore, in this article, the Americanization of European company law has been analysed utilizing a ‘micro’ perspective. The purpose is to illustrate how and why European company law has been influenced by American corporate law by using the Finnish Limited Liability Companies Act as an example.
Fighting Short-Termism in EU Company Law after the Financial Crisis
Authors: Horak Hana , Poljanec Kristijan
Published: March 2022

The authors challenge the belief that the shareholder model dominates EU company law, to the detriment of corporate sustainability. The article argues that the last financial crisis has significantly moved EU regulation towards integrating stakeholder model into EU company law. The article seeks to identify means that the EU has employed to fight shareholder primacy norm. The article considers safeguards underpinning the corporate financial sustainability, alongside those aspects of corporate social responsibility which focus on the interaction between a financially sustainable company and sustainable society.

Shareholder model, stakeholder model, share capital, accounting standards, corporate social responsibility
The Chain Principle: Equilibrium Between a Regulatory Need and Its Effects
Authors: De Andrade Domingos Freire
Published: March 2022

This article addresses the tension between the need to regulate takeovers activity through the chain principle, as to ensure minority shareholders protection and equal treatment of shareholders, and the adverse effects that may arise from that regulation. An explanation of how the chain principle is regulated in the United Kingdom and difficulties in applying the chain principle rules, particularly, to ascertain the chain price. Different possibilities Germany is offered and the Sky bid is presented as an example of the practical of how the chain principle could be designed are considered, namely regarding the most suitable method to ascertain the chain price and the most adequate entity to do it. The article ultimately concludes that the chain principle is a regulatory need because the mandatory bid rule could not be successfully achieved without the chain principle and that there is no perfect solution to find an equilibrium between the need to regulate the chain principle and its adverse effects, as rules enhancing the probability of an offer being made may have a negative impact on the premium value; while rules enhancing the premium value may have a negative impact on the probability of an offer being made.

chain principle, mandatory bid, cascade offer, takeover regulation, minority shareholders protection, equal treatment of shareholders, market for corporate control, control, significance test, premium value
Protection for ‘Inferences Drawn’: A Comparison Between the General Data Protection Regulation and the California Consumer Privacy Act
Authors: Blanke Jordan M.
Published: March 2022

Inferences drawn from personal data have arguably become more dangerous to individual privacy than the vast collection and storage of the data itself. Recently there have been questions raised about whether the General Data Protection Regulation (GDPR) has sufficient protection for these inferences. Probably not surprisingly, and learning from this possible shortcoming, the California Consumer Privacy Act (CCPA) specifically includes ‘inferences drawn’ as part of its definition of personal information. This article explores the widespread use of inferential data and compares the protection provided under the GDPR and the CCPA for such inferences.

privacy, data protection, inferences drawn, GDPR, CCPA
Empowerment and ‘Big Personal Data’: From Portability to Personal Agency
Authors: Anciaux Nicolas , Zolynski Célia , Chaudat Sébastien , Ladjel Riad
Published: March 2022

The place of individuals and the control of their data have emerged as central issues in the European data protection regulation. The 'empowerment' of the individual has notably resulted in the recognition of a new prerogative for the individual: the right to the portability of personal data. The corollary of this new right is the design and deployment of technical platforms, commonly known as Personal Cloud, Personal Server or PIMS, allowing the individual to consolidate all his or her data in a single system managed under his or her control. On the strength of these technical and legal innovations, several questions arise: what forms of empowerment are targeted in practice? What are the appropriate conditions to guarantee the objective pursued? At the crossroads of these questions, one dimension appears to be insufficiently exploited: that of 'agentivity'. This article transposes this notion from the social sciences to the management of personal data, and opens up a new reading of the empowerment measures of Big Data functionalities on personal data.

Personal Data, Portability Right, GDPR, Data Governance Act, PIMS, PDMS, Personal Agency, Mutual Trust
Tariffs of the World: Are Customs Duties Really Growing Unimportant?
Authors: Weerth Carsten
Published: March 2022

Some scientists and authorities are arguing that tariffs are growing more and more unimportant since eight GATT/WTOTariff– Rounds have resulted in tremendous reductions of the original tariff rates in the late 1940ies. The Non–Tariff–Measures however are gaining more importance. A WCO–background–paper has been published in September 2008 which shows the amount of revenue of a state that is generated by customs duties. The results are amazing. Tariffs are not important any more for developed states however revenue from customs duties is of very much importance to the (least) developing countries. The WCO–background–paper is based on data of 142 countries, territories and economic unions (all referred to as ‘countries’).
Model of Non–uniform Application of the Common External Tariff in the EC
Authors: Weerth Carsten
Published: March 2022

Many legal advisers, scientists and practitioners know since many years, that the Common External Tariff (CET) of the European Community (EC) is being applied non–uniform from the different national customs services and that the economic operators are using this systematic fault of the EC for their advantage. Which forms of advantages of price differences according to different duty rates at market entry into the EC common market are there? A model of non–uniform application of the CET of the EC has been developed and proven during three years of research and is presented in this paper.
The Structure and Function of the World Customs Organization
Authors: Weerth Carsten
Published: March 2022

The World Customs Organization (WCO, Organization Mondiale des Dounaes, OMD) is an intergovernmental organization of more than 170 Member States. It is of tremendous importance for the simplification of international trade and customs procedures; however, its modes of action and decision-making processes have been very secretive for a very long time. Only in very recent years the WCO has decided to open up (in particular by help of the internet) and it now explains its ways of action. This paper gives an overview of the WCO structures, committees, and functions.
The New Draft Text on Anti-dumping by the WTO Negotiating Group on Rules: Possible Implications for European Importers and Retailers
Authors: Newman Stuart
Published: March 2022

Any thoughts of an improvement to the EU anti-dumping system were dashed early last year when the reform process was pulled, thanks to political pressure from protectionist elements and arguments that any reform should come via the WTO. The latest text from the WTO, released in December, is a step toward that reform and shows a definite leaning toward greater transparency and predictability. If these new items are accepted, we may yet see positive changes to the EU system.
Ten Years of Anti-dumping in the EU: Economic and Political Targeting
Authors: Davis Lucy
Published: March 2022

Anti-dumping is at the heart of EU trade policy. Its use is justified on the grounds of eliminating injurious dumping by foreign firms and reestablishing conditions of ‘fair’ trade. Use of anti-dumping has been rising globally, generating concerns about the potential for protectionist abuse of this trade defence instrument (TDI). Most economists are of the opinion that anti-dumping has little to do with ‘unfair’ trade. In general, suspicions are high that domestic industries are turning to anti-dumping as a form of protectionism, and that the EU’s current anti-dumping laws support their efforts. This article takes an in-depth look at the past ten years of anti-dumping usage in the EU. The analysis draws on information from the 332 anti-dumping cases initiated between 1998 and 31 December 2008.

Five empirical tendencies have been identified:

(1) the main targets of investigations and measures are exporters in emerging markets, particularly in Asia – a growing source of global competition;

(2) targeted products are concentrated in sectors where European comparative advantage is declining, that is, raw materials, industrial input goods, and textiles;

(3) dumping margins reflect this pattern, being particularly high in the chemicals and steel sectors;

(4) duty levels are significantly higher than bound tariffs, particularly in the higher end technology sector;

(5) once an anti-dumping investigation has been initiated, definitive measures are the most likely outcome.
Dumping, Competition, and Profit in the EC Electronics Market
Authors: van Marion Marcel
Published: March 2022

Economic theory considers dumping as a matter diverging competition levels and market structures. This article investigates the dumping, injury – for which the lesser duty rule is relevant – and profitability in relation to competition. Conclusion is that competition in exporting countries seems less and profits exceed those in the European Community (EC) and are higher than attributed by Community institutions to a non-injurious price in injury margin calculations. Target profit imputations have been analyzed. Introduction is recommended of objective yardsticks for the determination of target profits, which takes into account the capital employed in the business, profit in country of export, and past injury incurred.
The Classification of Multifunctional Digital Machines – All Classy?
Authors: Tack Filip
Published: March 2022

Recent developments in the information technology today create major challenges with respect to the classification of products according to their ‘objective characteristics and properties’. In this regard, the United States launched World Trade Organization (WTO) dispute settlement proceedings against the European Union (EU) over its import tariff policy on certain hightechnology goods. Moreover, on 11 December 2008, the European Court of Justice (ECJ) also issued a ruling in the Joined Cases C-362/07 and C-363/07 (Kip Europe/Hewlett Packard) concerning the classification of certain multifunctional digital machines. In this article, we assess the potential impact of the ECJ’s judgment for the pending WTO dispute on ITA from a General Agreement on Tariffs and Trade (GATT)/WTO law point of view.
The EU Ban on Seal Products: Some Customs and WTO Open Questions
Authors: Gambardella Maurizio
Published: March 2022

The recent adoption by the EU of a regulation as to the ban of seal products has left unsolved a number of legal issues; namely, in the areas of (1) EU customs law and (2) the WTO law.

As to the EU customs law, for example, the regulation lacks provisions as to the administration of the customs procedures. For example, the transit regime is undefined in the regulation. Thus, the legitimacy of the transit of seal products is still uncertain and open to several interpretations by national authorities. The way transit as to the seal products regime will be managed, this will inevitably affect other sectors of trade. In addition, the regulation lacks as well clear rules for the implementation of a harmonized custom penalty regime. How this is implemented will determine whether it is consistent with the general principles of EU law. These and other legal issues will affect directly or ‘de relato’ a great number of trading sectors, which are involved in the seal products trade, because as changes are made to create harmony with EU law, other sectors will inevitably be affected.

Further, with reference to the World Trade Organization (WTO) law, in late 2009, Canada and Norway have brought a complaint against the regulation, claiming the inconsistency of the latter in the light of the WTO law. The pending litigation, which is mainly about environmental issues, may reach a new striking interpretation of several WTO principles, for example, as to the general exemption under Article XX(b) of the General Agreement on Tariffs and Trade (GATT) 1994 and, in general, as to Article XX of the GATT 1994. Indeed, in the previous few case laws involving animals health issue, such as US-Shrimp, such general exemption under Article XX(b) was not analysed by the Appellate Body. Therefore, this seal product litigation could instead push WTO jurisprudence ahead on the interpretation of Article XX(b) and the consistency of the measures in the light of the chapeau of Article XX of the GATT 1994. It goes without saying that the interpretation that the WTO judicature will possibly make over these issues will constitute a case law, which will be invoked in many future WTO litigation.
Subsidies to Renewable Energy Sources and International Trade: Issues and Tools to Reconcile Trade Rules and Environmental Policies
Authors: Vergano Paolo R. , Laurenza Eugenia
Published: March 2022

This article describes some of the issues arising from the relationship between renewable energy subsidies and their impact on international trade, including trade in products instrumental to the pursuit of environmental objectives, which may be directly targeted or indirectly affected by such policies. It first provides an overview of some of the renewable energy subsidies currently applied by a number of World Trade Organization (WTO) Members and then reviews the relevant WTO rules and their application to renewable energy support programmes. The article also highlights some key elements of the relationship between trade and climate change. Finally, the authors suggest a possible solution to achieve both environmental objectives and the pursuit of free and fair trade through the application of a ‘peace clause’ against multilateral trade challenges of these types of subsidies, leaving at the same time intact the possibility for WTO Members to apply domestic trade defence measures to address possible trade distortions resulting from the use of environmental subsidies.
Anti-dumping and Countervailing Duty Law and Practice: The Mexican Experience
Authors: Uhm Ihn Ho , Covelli Nick , Bowman Gregory W. , Gantz David A.
Published: March 2022

Although Mexican anti-dumping and countervailing duty laws are similar in important respects to the unfair trade laws of Mexico’s North American Free Trade Agreement (NAFTA) partners, the United States and Canada, there are significant procedural and substantive differences. In light of these differences, and given that Mexico is one of the World Trade Organization’s (WTO’s) most frequent users of unfair trade laws (including at least twenty-five actions against United States producers in recent years), the subject warrants closer study and analysis by academics and practitioners alike. This article explores the subject of Mexican anti-dumping and countervailing duty laws in detail by discussing their origins and historical development, comparing them to their US and Canadian counterparts, and guiding the reader through the life cycle of Mexican anti-dumping and countervailing duty cases. It also analyses the various administrative and judicial review options, including NAFTA’s Chapter 19, along with relevant Mexican court, NAFTA binational panel, and WTO Dispute Settlement Body (DSB) jurisprudence.
The Interpretive Technique of the WTO Appellate Body
Authors: Junqueira Carla
Published: March 2022

This article deals with the interpretive technique of the World Trade Organization’s (WTO’s) dispute settlement system’s Appellate Body (AB). It also discusses whether the interpretive method used by the AB is legitimate. To this end, the article defines the concept of legitimacy based on the elements that are of fundamental importance to WTO members—confidence among members and the expectation that the dispute settlement system brings predictability to the rules negotiated during the Uruguay Round. The article argues that the primacy given to the text of the agreements is one of the fundamental elements of stability and predictability sought by WTO members. Throughout the article, some practical recommendations for those presenting arguments to the Appellate Body.
Assessing the Importance of the Definitions of ‘Product under Consideration’ and ‘Like Product’ in Antidumping Investigations
Authors: Tejeda Marco Tulio Molina
Published: March 2022

The administration of the antidumping law requires the identification of the 'like product' in each case. Article 2.1 of the Antidumping Agreement provides that a product 'is to be considered as being dumped, that is, introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country' (emphasis added). The product that is compared to the 'like product' is known as the 'product under consideration' or the 'subject product'. The definitions of 'product under consideration' and 'like product' determine, among other elements, the individuals or companies that may be affected by the investigation, from whom and which information may be gathered, and to whom and to which products the imposition of an antidumping duty may be directed. An assessment of the importance of these definitions in antidumping investigations illustrates their significance in determining the scope of antidumping cases and, in turn, their value and effectiveness.
Free Zone Incentives in MERCOSUR Countries and WTO Law
Authors: Gari Gabriel
Published: March 2022

This article examines the consistency of the incentives offered by free zone regimes in Argentina, Brazil, Paraguay, and Uruguay with World Trade Organization (WTO) law. It suggests that some of the incentives offered to free zone users are inconsistent with the Agreement on Subsidies and Countervailing Measures (ASCM) because they constitute a 'subsidy' within the meaning of the ASCM, subject de iure or de facto to export performance, most notably, exemptions of direct taxes, exemptions of custom duties on the import of capital goods, exemptions of payment of social welfare charges, unqualified exemptions on payment of indirect taxes, and the possibility to supply goods or services to free zone users at promotional rates. By contrast, this article suggests that there are no significant inconsistencies between free zone incentives and the General Agreement on Trade in Services (GATS) but warns that the situation could change in the future if, as a result of multilateral negotiations, MERCOSUR countries opt for extending their GATS commitments to new sectors and modes of supply.
Trade and the Oceans: A New Paradigm for Environmental Protection and Conservation
Authors: Sakai Courtney , Allgeier Peter
Published: March 2022

Increasing attention is being given to the nexus between international trade rules and environment/resource issues, especially how trade agreements and rules affect the global commons. To date, trade agreements largely have been confined to fostering environmental cooperation and promoting compliance with existing domestic environmental laws and regulations. The impact of such agreements, many argue, has been minimal in terms of having a tangible effect on the environment. However, current negotiations in the World Trade Organization (WTO) and the Trans Pacific Partnership (TPP) offer the possibility of incorporating concrete environmental commitments within a traditional commercial trade agreement. Fisheries subsidies, seafood fraud, and other illegal fishing activities are mainstream issues for trade negotiations, not a radical effort to insert extraneous non-trade issues into trade negotiations. A review of the trade disciplines and measures in the tool boxes of trade negotiators provides numerous examples of how to do this, using the fisheries sector as an example.
China and the WTO Dispute Settlement System: From Passive Observer to Active Participant?
Authors: Thomas Kristie
Published: March 2022

Since China's accession to the World Trade Organization (WTO) in December 2001, it has participated in a relatively small number of cases brought to the WTO Dispute Settlement Body (DSB), contrary to the many wild predictions made prior to entry. In the first few years post-accession, China seemed content to act as a passive observer, participating mainly as a third party. However, since 2006, there appears to have been a shift in attitude with China now taking a more combative stance, particularly in the past few years. This article will examine China's participation in the WTO DSB from 2002 to date to explore whether China's approach really has shifted from that of passive observer to that of an active participant, possible reasons to explain this transformation and what the implications of such a shift may be for other WTO Contracting Parties.
Fossil Fuel Grading and Sustainability Criteria for Biofuels and Bioliquids under the EU Fuel Quality and Renewable Energy Directives: Implications for International Trade
Authors: Vergano Paolo R. , Laurenza Eugenia
Published: March 2022

The legislative measures adopted by the European Union (EU) under the 'Climate Action and Renewable Energy' package have required, or are leading to, the adoption of grading systems or classification of fuels, biofuels, and bioliquids based on their carbon footprints or production methods, which are not without consequences for international trade. This article focuses on two legislative initiatives: the possible impacts of EU measures aimed at 'grading' fuels used in transportation according to their carbon footprint, required under the Fuel Quality Directive, and the sustainability criteria for biofuels and bioliquids established by the Renewable Energy Directive and the Fuel Quality Directive. Both instruments may result in the placing of trade restrictions on fuels, biofuels, and bioliquids into the EU and in trade discrimination, in possible contrast with the rules of the World Trade Organization (WTO). The article argues that these measures should not neglect the commercial implications that they have on third countries' (and traders') interests and be consistent with the rules of the WTO in order to avoid that environmental policies result in instances of 'green protectionism'. Multilateral solutions to address global problems having an impact on trade are clearly to be preferred. Traders should be heard in this debate, remain vigilant, and work with their governments and trade associations to ensure that no discrimination is 'camouflaged' under green policies.
The CJEU Judgment in Nokia and Philips Clarifies the Customs Detention of Goods Suspected of Infringing Intellectual Property Rights
Authors: Condello Francesca Stefania , Ruessmann Laurent
Published: March 2022

On 1 December 2011, the Court of Justice of the European Union (CJEU) issued its judgment in two joined cases involving Koninklijke Philips Electronics NV (C-446/09) and Nokia Corporation (C-495/09). This judgment clarifies the conditions for the customs authorities to detain or suspend the release of goods placed under suspensive procedures in order to enforce intellectual property rights (IPR). It also addresses the requirements for the authorities competent to decide, after the temporary detention or suspension of release, whether there is an actual infringement of IPR.
Judicial Review of Trade Remedy Determinations in Ten User Countries
Authors: Vermulst Edwin , Vermulst Edwin
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.
Trade Defence Instruments in Vietnam: Reality and Solutions
Authors: Thu Trang Lu Thi
Published: March 2022

Increasing international trade liberalization has dramatically dropped tariff and non-tariff barriers in the last decade in line with the commitments of WTO Members. Anti-dumping, anti-subsidy and safeguard measures, three pillars of trade defence instruments (TDIs), are considered as an effective means of protectionism for countries to reversely impose tariff barriers against their trading partners for the benefit of domestic industries. WTO accession and regional economic integration presented Vietnam with considerable potential and opportunities to expand and to intensify its trade relations with the world. At the same time, growing trade may also bring many challenges, including issues related to unfair trade practices and fierce competition to domestic industries from imported products. Therefore, it is necessary for Vietnam to make effective use of TDIs for the legitimate benefits of domestic industries. Against this backdrop, although Vietnam's legislation on anti-dumping, countervailing and safeguard measures had been sufficiently promulgated since 2004, there has been only one case on safeguard measure ending up with nonaffirmative result. The article aims at providing the general overview of the TDIs system in Vietnam and the application of the Vietnamese regulation on TDIs to explore the reasons for the inactiveness of TDIs in Vietnam before coming up with the recommendations for the better use of TDIs in the future.
Reformulating Material Injury: The Socialization of Ghanas Antidumping System
Authors: Kufuor Kofi Oteng
Published: March 2022

In this article, we identify and analyze a new turn in the concept of material injury that we call the socialization of antidumping. Analyzing antidumping rhetoric and lobbying in Ghana, we argue that there seems to be an expansion of material injury to include harm that dumped goods can cause to society. We identify the reasons for this and the interests that seek to liberalize the meaning of material injury. Our approach is comparative and we draw on examples from other jurisdictions to shed light on our argument. The article suggests that nothing prevents the expansion of material injury at the level of the global antidumping system.
Market Economy Treatment for Chinese Producers under the Indian Antidumping Regime
Authors: Johnson Vinitha
Published: March 2022

The article explores the conditions influencing the attribution of market economy treatment to Chinese producers and exporters in Indian antidumping investigations. The findings of the designated authority in India in various investigations on market-economy treatment have been analysed. Accurate documentation which indicates that there is no state interference in the management, costing and pricing decisions of the entity, being able to adduce evidence that raw materials procured are not from state-sources, and indicating that there is significant foreign interest are factors which increase the chances for being awarded market-economy treatment. Part I introduces the legislative framework for non-market economy countries India. Part II delineates the factors which lead the investigating authority to speculate on the presence of 'Significant Distortion' through government control. It also deals with data which must be presented pertaining to the procurement of raw materials and utilities and the subsidy programs in China. Part III identifies the conditions to be considered before tabling other countries as 'surrogate economies' by the investigating authority. Part IV captures that the Chinese economy is an economy in transition. Part V deals with the cases in an investigation where an entity has been granted market economy treatment.
Caught in the Crosshairs: CBP Enforcement of Antidumping and Countervailing Duty Orders
Authors: Parga Cylinda , Pike Damon V.
Published: March 2022

Given the myriad of government regulations governing the import of merchandise into the United States, many companies are struggling to keep 'ahead of the curve' and effectively identify the 'landed cost' of imported merchandise so that planned profit margins turn into actual ones. Although regular US Customs duties may often be a small part of that calculation (or even not a part at all because many products are duty-free), another 'hidden' cost can be antidumping and countervailing duties. This article examines that issue and why importers need to focus on this increasingly important financial aspect of trade compliance and cost planning.

US Customs and Border Protection (CBP or Customs) has identified the enforcement of Antidumping and Countervailing Duties (AD/CVD) as one of eight Priority Trade Issues (PTI) to receive heightened scrutiny from the agency and its personnel in 2013. CBP's designation of AD/CVD duties as a PTI indicates that CBP believes the area presents a high risk of significant revenue loss - a key concern for the agency given its current focus on 'protecting the revenue'. Pursuant to this designation, CBP has been vigorously investigating importations of goods suspected to be covered by current AD/CVD orders in an effort to ensure maximum compliance by US importers and to collect AD/CVD on covered products.

CBP's enforcement efforts present a significant compliance risk for importers which have not enacted any AD/CVD controls beyond relying solely on their customs broker to flag potential AD/CVD imports. Importers - in coordination with their in-house trade compliance professionals and/or outside advisors - should implement a robust AD/CVD compliance regime to monitor and flag the presence of any potential AD/CVD obligations prior to importing goods into the United States. Failure to do so can have catastrophic consequences for uninformed importers; if not previously accrued for, the draconian nature of some AD/CVD rates, when combined with potential penalties for failing to report such rates, presents many importers with insurmountable duty liabilities.
Gone With the Wind: The Ralls Transaction and Implications for Foreign Investment in the United States
Authors: Hari Hrishikesh , Zucker Jeremy
Published: March 2022

In 2012, pursuant to a national security review conducted by the Committee on Foreign Investment in the United States (CFIUS), President Obama ordered the unwinding of Ralls Corporation's ("Ralls") acquisition of certain US wind farm companies. Ralls' legal challenge of the President's Order, and the court's opinions to date, highlight important considerations for both foreign investors and the national security community. This article contextualizes the case within a broader debate about how well CFIUS balances openness to foreign investment and protection of national security, points out important gaps in the national security review process, and considers opportunities for greater transparency.
Benchmarking U.S. Trade Controls Compliance: Toward an Integrated Approach
Authors: Pisa-Relli John
Published: March 2022

The Merriam-Webster dictionary defines a "benchmark," in pertinent part, as "something that serves as a standard by which others may be measured or judged." The purpose of this article is twofold: (1) to provide a practical resource for trade compliance professionals-lawyers and non-lawyers alike-for benchmarking the effectiveness of a U.S. trade control compliance program against an integrated checklist developed from various recognized standards of compliance; and (2) to provide a conceptual backdrop against which senior executive management with responsibility for regulatory compliance and risk management can make the case to relevant stakeholders that an effective U.S. trade controls compliance program is both necessary and attainable. Future volumes may expand the scope of coverage to include specific consideration of other related areas of regulatory concern, including Customs and import requirements, anti-boycott law, anti-corruption law, anti-money laundering, USA PATRIOT Act compliance, and equivalent non-U.S. legal regimes. But as a point of departure, this article focuses substantively on elements of a compliance program specific to U.S. export controls and economic sanctions (with the general elements of an effective corporate compliance program set forth in the U.S. Federal Sentencing Guidelines serving as a baseline). The central premise of this article is that it is possible to synthesize various recognized standards of compliance into an integrated checklist that can be used to help undertake a comprehensive assessment of a program's overall effectiveness, and that adopting such an integrated approach yields significant benefits, as discussed in detail in the content that follows. Like a compass, this article is intended to help you find the right direction to begin or continue your journey. It is not intended to serve as a detailed map of what will be found along the way, as each journey will vary in the path taken and obstacles encountered. In future volumes, given sufficient interest, we may explore the detailed topography of applicable U.S. trade controls (and related areas of regulatory concern), as well as more specific paths for navigating them.
The Framework Convention on Tobacco Control and the World Trade Organization: A Conflict Analysis under International Law
Authors: Lowe Jeffery C. , Layton Duane W.
Published: March 2022

The Framework Convention on Tobacco Control (FCTC) seeks to promote global public health through tobacco control. Some perceive a conflict between the obligations imposed by the FCTC and those of international trade treaties, particularly the World Trade Organization (WTO) Agreements. They argue that the FCTC is more specialized and socially important, and thus should be given priority for tobacco-related issues. These proposals lack support, however, not only under the FCTC and WTO, but international law generally. The two treaties should be interpreted harmoniously. If that is not possible, international law requires that the WTO be given priority over the FCTC.
On Article 8.1(b)(iv) of the Customs Valuation Agreement: When Is the Value of Certain Services Supplied by the Buyer Relevant for Customs Value (i.e., Engineering, Development, Artwork, Design
Authors: Báscones Julio Guadalupe , Diaz Gavier Patricio
Published: March 2022

When a buyer imports a manufactured good, the buyer/importer must be aware that the value of any engineering, development, artwork, design work, plans or sketches it has supplied to the manufacturer may have to be declared on importation as part of its transaction value and become dutiable. The purpose of this article is to explain when that is the case so that undervaluation but also overvaluation can be avoided.
Administrative Protective Order System: Should the Exception Be Made the Rule?
Authors: Müller Wolfgang
Published: March 2022

The Administrative Protective Order (' APO') system ensures a maximum of transparency in trade remedy investigations. However, its introduction in any trade remedy system would also come with a cost. This article examines how the EU ensures transparency in trade remedy investigations and to what extent the APO played a role in the ongoing modernization exercise. It argues that an APO system is a less straightforward choice than it looks at first sight and that the EU's pragmatic approach has merits
APO and Known Unknowns
Authors: Graafsma Folkert
Published: March 2022

Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. There are known unknowns; that is to say there are things that we now know we don't know. But there are also unknown unknowns - there are things we do not know we don't know.
Conflict over Conflict Minerals: U.S. Policy Fails First Amendment Test
Authors: Balaram Ruby , Kaniecki Chase
Published: March 2022

In an effort to stem the resources available to armed groups in the Democratic Republic of the Congo, the U.S. government passed a law requiring issuers to file reports with the U.S. Securities and Exchange Commission discussing whether materials used in their products include "conflict minerals"-materials that are sourced from the Democratic Republic of the Congo and neighboring countries. The National Association of Manufacturers challenged the law on several grounds and was partially successful. The appeals court reviewing the challenges determined that a portion of the law violated the First Amendment by requiring issuers to state whether their products were "free" of conflict minerals. This paper describes the law and the court challenges, including the current status of appeals. The paper also describes the recent filings that were required to be made under the law and practice tips for issuers to comply with the law.