bluuebunny/crossref_metadata_2025 huggingface dataset:
The Enforcement of Personal Data Protection Law in Japan
Authors: Oshima Yoshinori , Sakai Machiko
Published: March 2022

This article examines issues regarding the administrative enforcement system of the Act on the Protection of Personal Information (APPI) in Japan.

The former APPI (established in 2003) provided two regulatory mechanisms for the administrative enforcement system: (1) self-regulation business operators or accredited personal information protection organizations and (2) indirect penalty based on violations of orders. Moreover, the Amendment Act in 2015 improved the system for securing obligations, such as the establishment of the Personal Information Protection Committee (PPC), the enhancement of regulatory authority, and the implementation of a co-regulation system. However, it is pointed out that these mechanisms might still not be sufficient as a system for securing obligations because of the limited authority of PPC, the validation of the co-regulation system, and the malfunction of an indirect penalty system. This article outlines the history of the APPI focused on the administrative enforcement system and examines improvement measures and further amendments such as the introduction of the administrative monetary penalty system.
Is a Relative Definition of the Notion of Erasure the Much Sought-After Solution to the Dilemma Between Robust Integrity and Total Eradication?
Authors: Bauer Yves , Tissot Nathalie , Cottier Bertil , Mercier Hugues
Published: March 2022

This article highlights the tension that lies between the General Data Protection Regulations (GDPR’s) security and minimization principles. The implementation of state-of-the-art technologies, such as entanglement or blockchains, offers promising opportunities for data controllers to guarantee the security of the data they process, particularly in relation to availability and accuracy. On the other hand, such technologies may enter into conflict with other obligations, especially regarding the erasure of data (at the end of data life or requested by the data subject). We argue that the interpretation of the notion of erasure shall not be limited to the physical destruction of the data, but shall also extend, when technical measures implemented for the purpose of guaranteeing security do not allow for the physical destruction of the data, to ‘relative erasures’, or processing activities that have for effect to put the data beyond use in a way that makes it impossible, for the controller or third parties, to process it again without disproportionate efforts. Such interpretation would allow data controllers who implement strong security measures to comply with the GDPR. Combined with a careful design of privacy, it may further guarantee the data subject’s rights without requiring detrimental security concessions.

GDPR, erasure, minimization principle, right to erasure, data life cycle, anti-tampering technologies, blockchain technologies, data availability, data integrity, data deletion, data erasure
Are Narco-Lists Covered by the Philippine Law on Privacy?: Exploring the Limits of the ‘Classic’ Right to Privacy and Applying a Constitutionally Grounded Data Protection Right
Authors: A. Razon Arvin Kristopher
Published: March 2022

This article dissects the limits of the constitutionally recognized right to privacy and examines the constitutional underpinnings of the right to data protection, specifically applying the analysis in the context of narco-lists: ‘intelligence reports’, issued by Philippine President Rodrigo Duterte’s office, that contain names of public officials allegedly involved in the narcotics trade. Whether individuals named in the narco-lists would be successful in asserting the right to privacy against the release of the narco-lists is uncertain, because of their decreased expectation of privacy, their status as public figures, and the countervailing rights to be balanced. This article further conceptualizes the data protection right as a constitutional right: this right may be asserted by individuals named in the narco-lists; with this right, individuals should be able to either require the government to comply with its ex-ante protections or exercise their rights to reasonable access, to rectification, to erasure or blocking, and to damages.

Privacy, Data Protection, Data Privacy, Narco-lists, Philippines Drug War
Reconciling Competing Data Security Standards Applicable to Data Held by Retail Banks Operating in California in Light of Van Buren and TransUnion
Authors: R. Sneberger Michael
Published: March 2022

When operating in California, retail banks face competing, seemingly inconsistent, federal, state, and industry data security standards. The article describes what regulations prescribe data security standards for banks operating in California. It analyses private rights of action available in the event of a data breach, how such private rights may be affected by the Van Buren and TransUnion decisions, and what data security standards are set forth by each of the controlling regulatory regimes, as well as other industry standards which may inform the applicable standard of care regarding non-personal information. Finally, the article presents a position on how a California bank can reconcile the applicable security standards, and provides a suggestion for a data security benchmark for retail banks operating in California by positing that a ‘reasonable’ data security program is not only one based on assessment of risk and industry best practices, but is also reconcilable with the seemingly competing regulatory regimes applicable to banks operating in California.
Basic Principles of Customs Classifications under the Harmonized System
Authors: Weerth Carsten
Published: March 2022

The fundamental rules for the classification of goods into a customs tariff that complies with the Harmonized System (HS) for the description and coding of goods, are six general rules that apply worldwide. This article examines the six basic rules of classification and explains their usage. Understanding these basic principles enables users around the globe to uniformly apply customs tariffs that are based on the HS nomenclature.
‘Shooting in The Dark’ in the EC Anti–dumping and Anti–subsidies Investigations
Authors: Gambardella Maurizio
Published: March 2022

In EC Anti–dumping and Anti–subsidies investigations to what extent are the interested parties’ rights respected? In this contribution, in the attempt to answer to this question, the author gives a brief description of the Commission praxis in these investigations and focuses on some major matters. Interested parties’ access to minutes of hearings, reports of ‘on–the–spot’verifications and access to internal guidelines, by way of example, are some of the controversial issues herein analysed. Eventually, the author focuses on the outstanding questions still pending as to EC Anti–dumping and Anti–subsidies investigations and concludes this contribution by advance structural reform in these procedures in order to better protect the interests of the parties involved.
Air Carrier Responses to the Fuel Price Crisis: Some Issues
Authors: Abeyratne Ruwantissa
Published: March 2022

The Summer of 2008 heightened the burgeoning fuel price crisis which had been felt by the global community several months earlier, forcing numerous air carriers to react spontaneously and precipitously. Some carriers proceeded to apply surcharges on the first piece of baggage carried by a passenger – a practice hitherto unknown in the industry – and increased air fares as they thought fit, while others retrenched staff and cut down on their services. The air transport product has, throughout its availability over the past six decades, customarily carried a person and his baggage at a maximum free allowance. The measures taken by the carriers to transfer the burden of rising fuel prices to the passenger to the detriment of this accepted practice, brings to bear the issue as to whether the carriers could have considered alternate steps before taking these impulsive measures, which were clearly calculated to adversely affect the consumer of the product they offered. It also examines the critical role played by the air transport industry in its contribution to the global economy and the issue of passenger rights. The article concludes by examining as to what prudent measures could be taken by the carriers to more efficiently operate their air services in times of such crises.
A Short History of the World Customs Organization
Authors: Weerth Carsten
Published: March 2022

The World Customs Organization (Organisation Mondiale des Dounaes) is an intergovernmental organization of more than 170 Member States that was founded as European Customs Cooperation Council in 1952. This paper gives a brief overview of its history and legal milestones.
Resolution of NTBs in Bilateral Trade Agreements – Lessons from the U.S.-Korea Free Trade Agreement and a Model for Market Access in the Twenty-First Century
Authors: Farrah Jeffrey E.
Published: March 2022

The incredible success of the World Trade Organization (WTO) and bilateral Free Trade Agreements in reducing tariffs has shifted the battle for market access in the twenty-first century. Countries that seek to protect their markets now must resort to non-tariff barriers (NTBs). Unfortunately for exporters, NTBs are elusive and it is difficult to prove the illegality of a measure within the confines of the standard dispute settlement system. This article draws upon lessons from the U.S.-Korea FTA (KORUS) and the current political climate and concludes that the United States must develop a new framework to address NTBs to trade within bilateral trade agreements. It is proposed that an NTB Resolution Mechanism be included within U.S. bilateral trade agreements. The NTB Resolution Mechanism should build on proposals at the WTO that require that NTBs be examined within 60 days and focus on the trade restrictiveness—and not the legality—of the measure. However, the Congressional Proposal to Open Korea’s Automotive Market makes it clear that the NTB Resolution Mechanism must have teeth to assure exporters that trade barriers will be addressed. One option is to include the Korea trade agreement’s “snap-back” provision within the NTB Resolution Mechanism. Next, the NTB Resolution Mechanism should allow for a private right of action. Exporters are concerned that the U.S. government may not take up their cause over discrete NTBs in otherwise complicated bilateral relationships. A private right of action would guarantee that all companies with market access problems are heard. Finally, a continuous monitoring platform should be created that documents NTBs. The platform would exist within U.S. bilateral trade agreements and would be built upon the principles of current structures that document trading difficulties. The platform would provide a formal channel to raise NTBs and ratchet up pressure to remove the barriers. The platform would also provide a channel to build evidence prior to engaging the NTB Resolution Mechanism. Market access is the issue that drives corporate support for liberalization of international trade. The United States must build structures within its trade agreements that can adequately address market access inhibitors like NTBs. Without these structures, agreements like KORUS will not be ratified by a Congress that is increasingly skeptical of liberalized trade, and the United States will fall further behind in global trade agreements.
Forging a Translation: The “Circumstances of Sale” Criterion, Transfer Pricing, and Economics
Authors: Abad Luis A.
Published: March 2022

The article discusses common difficulties that multinational enterprises (MNE), importers, and customs authorities face when attempting to reconcile transfer prices with the arm’s length “circumstances of sale” (COS) criterion contained in theWorld Trade Organization’s (WTO) customs valuation agreement. The discussion highlights the differences and commonalities that the customs rules share with the Organisation for Economic Co-operation and Development’s (OECD) arm’s length principle often employed for income tax purposes. Utilizing theWTO and OECD models and the U.S. customs and tax laws as specific points of reference, the article offers an analysis of certain aspects of existing international customs “related party” rules and makes suggestions to enhance compliance through the adoption of practical and quantifiable economic and accounting-based analysis.
Delivering Leadership in a Complex Environment: How Customs Agencies Can Succeed after the Crisis
Authors: Coffey Rob , Regan David , Canham Jim
Published: March 2022

Customs agencies find themselves operating in a world in which they are more important than ever to the nations they serve but in which their role is being questioned and the challenges they face have shifted. The goals for customs remain the same: to facilitate trade, to protect national security, and to ensure accurate revenue collection, but the context in which they must deliver them is very different. These outcomes do not fall solely within the remit of the customs agency, nor do they even fit within the control of any single nation. To succeed in the future, customs agencies need to provide leadership in a complex, multiagency, multinational environment. This article examines the challenges agencies face and outlines the components of a new operating model that will enable them to meet these challenges and to drive national success.
Transparency in EU Antidumping Investigations: The European Ombudsman Perspective
Authors: Gambardella Maurizio
Published: March 2022

A recent case presented an opportunity for the European Ombudsman to enhance transparency by allowing access to the confidential file in an antidumping investigation. The Ombudsman's decision is the first ruling under Regulation 1049/2001 regarding public access to European Parliament, Council, and Commission documents insofar as the antidumping investigation is concerned. In its decision, the Ombudsman found no maladministration by the European Commission in refusing the access. The Ombudsman's decision, however, is not without fault. The Ombudsman has afforded too much deference to the Commission and has thereby eroded the integrity of the decision-making process and it has failed to faithfully implement the policy embodied in transparency regulations.
Case Note on Panel Report in US-Boeing
Authors: Bohanes Jan
Published: March 2022

The World Trade Organization (WTO) panel report in the US - Boeing dispute is currently under appeal, and the Appellate Body's decision is expected for late 2011 or early 2012. This dispute concerns the complaint by the European Union against alleged subsidization practices of the United States in favour of the Boeing company. Earlier this year, in the EC - Airbus dispute, the Appellate had upheld parts of a panel report that found that the European Union's subsidies to Airbus had caused serious prejudice to the United States. In US - Boeing, the panel found the reverse - namely, that the United States had caused serious prejudice to the European Union through various subsidies granted to Boeing, including certain tax measures as well as research and development contracts of certain US government agencies such as NASA and Department of Defense. This case note summarizes the panel report. It also provides brief reflections on these findings, both on aspects that have not been appealed as well as those currently before the Appellate Body.
New Countries Are Applying the Harmonized System Nomenclature  Update 2011 (as of 21 June 2011)
Authors: Weerth Carsten
Published: March 2022

More and more countries and economic regions are applying the Harmonized Commodity Description and Coding System (Harmonized System Convention). This article examines in the update 2011 the new countries that are using the worldwide uniform language of trade since 2007 and 2008 and that are going to apply the tariff scheme from 2009, 2010, and 2011 onwards.
Free Trade and Empty Coffers: The Fiscal Impact of Trade Liberalization for Developing Countries
Authors: Rodríguez Enrique Valerdi
Published: March 2022

Trade liberalization can be an effective way to promote growth in developing countries and is part of the development strategies of many of them. However, the dismantlement of tariffs can reduce the revenues of countries that rely heavily on taxes on international trade, thus having adverse consequences for development. The matter is important for developed and developing countries alike and has been receiving growing attention in recent years, as it has an impact on trade negotiations and the development policies of many countries.

This article analyses the importance of tariffs for government revenue purposes and the reasons some countries use them instead of other taxes. It shows that while trade taxes are almost irrelevant for revenue purposes in developed countries, some developing countries, especially the poorest of them, still need them to raise revenue, as from a taxation point of view, they are particularly well suited to their specific characteristics. It concludes that, although there are no magic solutions, the best way to deal with fiscal losses is for developing countries to reform their tax systems, but careful and gradual liberalization of trade and support from developed countries are also important. Developing countries cannot reform their tax systems overnight, and the recipe of the Bretton Woods Institutions has produced mixed results. While tax reform is the responsibility of developing countries, developed countries also have a role to play by supporting these reforms and allowing developing countries to liberalize trade on their own terms and according to their development strategies.
The Customs Treatment of Royalties and License Fees with Regard to Imported Goods
Authors: Cuadros Miguel A. Rodriguez , Cannistra Daniel
Published: March 2022

A commentary issued by the International Chamber of GATT Customs Valuation Code states with regard to royalties and license fees: 'there is no part of the Code where so much is left to interpretation and implementation, and so little can be derived from a literal reading of the words used. Some critics have thought the authors of the Code did not explore the subject sufficiently, and it is true that the subject was only reached rather late in the Geneva negotiations and revealed considerable differences between governments (often as to what problems required attention, rather how they should be resolved)'.

This article serves as a legal analysis of a variety of royalty payment scenarios and the resulting impact on final duty payments taking into account the legislation and practices in the Andean Community and Peru, the European Union (EU), and the United States. As a general matter, the term 'royalties' simply refers to a means by which consideration is paid for the right to use an intangible property. As such, royalty payments themselves are not inherently dutiable or not dutiable. Instead, one must look in particular to the nature of the intangible property that is being conveyed and the issue of whether it relates to the goods being valued and whether it must be paid, either directly or indirectly, as a condition of the sale.
Judicial Review of Anti-dumping Determinations in the EU
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.
Judicial Review of Anti-dumping Determinations in Indonesia
Authors: Bundjamin Erry
Published: March 2022

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

When it comes to proof of origin, the EU-Korea free trade agreement is a new generation agreement. The system of origin certification by a competent authority is replaced by a system of self-certification while in previous free trade agreements both systems coexisted. Under this free trade agreement, consignments of EUR 6000 or more can only be granted preferential treatment where the origin declaration is made out by an approved exporter. Exporters wishing their goods to benefit from preferential treatment must obtain approved exporter status through an application process. Without such approval, an exporter cannot make out a valid origin declaration and preferential treatment cannot be granted on importation. The purpose of this article is to explain the self-certification process under the EU-Korea free trade agreement and related topics, including the origin declaration and its validity, the verification of the origin declarations and the consequences for importers when the presented origin declaration is invalid or incorrect. The article focuses mostly on the EU perspective. The articles referenced to herein are contained in the Protocol of Origin.
The TBT Agreement: Examining the Line Between Technical Regulations and Standards
Authors: Al-Nabhani Faisal
Published: March 2022

Recent WTO case law has blurred the distinction between Technical Regulations and Standards as defined under the WTO Agreement on Technical Barriers to Trade (TBT Agreement). The main issue concerns the interpretation of "mandatory compliance".

This paper examines the analysis undertaken by the Panel and Appellate Body in US-Tuna II ( Mexico) in assessing the difference between mandatory and voluntary compliance. It demonstrates that there are certain threshold questions implicit in the reasoning employed by the Panel and Appellate Body that provide guidance in assessing the mandatory character of a measure. Although not dispositive, this guidance helps to distinguish between a Technical Regulation and a Standard.
Coherent International Trade Policies Hasten, Not Retard, Cloud Computing
Authors: Kogan Lawrence A.
Published: March 2022

Amid the apparent global economic slowdown affecting multiple goods and services sectors, including those comprising the broad rubric of ICTs, the availability of ubiquitous multiple broadband and Internet-based cloud offerings continue to present national and regional governments with a significant potential source of current and future local economic growth and job creation possibilities. While governments cognizant of this opportunity have endeavoured to exploit it, they have, however, largely remained cautious in addressing emerging public policy concerns surrounding third country digital transfers of individual and business data to the cloud. A number of governments have embraced different and often inconsistent regulatory and voluntary approaches in answer to these data/informational privacy and data security concerns. These responses have imposed significant direct and indirect restrictions on trans-border data flows that have had the undesirable effect of retarding the adoption of cloud computing service platforms in various markets. More established globally-focused cloud service providers have been most adversely impacted by these new measures, even after having previously reformed their IP-based business models to satisfy foreign governments' expressed preference for less expensive royalty-free ICT interoperability frameworks. Consequently, these and other companies, increasingly suspicious of disguised protectionism at play, have called upon governments to quickly reach consensus in one or more multilateral, regional and/or bilateral forums on an open, transparent and non-trade-restrictive framework capable of providing a positive enabling environment that facilitates the eventual expansion of international cloud computing.
Blues at the Border: The Quest for Uniform Tariff Classification in the European Union
Authors: Rodríguez Enrique Valerdi , Dulguerova Elena
Published: March 2022

The European Union has established a customs union between its Member States. A customs union means that no customs duties are levied on goods traded within the customs union and that Member States apply a common external tariff to all goods entering the territory of the customs union. However the reality is sometimes far from the theory. This article examines the reasons for which theory and reality do not always match. It mainly focuses on the issue of potential divergent classification of goods upon entry in the EU and the subsequent divergent application of duties and various commercial measures to imports. After explaining how the current system to address divergences works, this article presents solutions that would not only improve the existing system but also substantially modify it to prevent divergences in the future.
EU Common Foreign and Security Policy Sanctions: Litigation before the EU Courts and the Sunday Punch Approach
Authors: Rovetta Davide , Rovetta Davide
Published: March 2022

The EU General Court and the Court of Justice of the European Union guarantee an appropriate and very high quality level of judicial protection in the area of Common Foreign and Security Policy (CFSP) financial sanctions. However, the Council of the European Union often relies on the time-consuming process to obtain a final ruling of EU Courts in order not to discontinue assets freezing sanctions against a given individual or company. The length of time to get an EU Court ruling and the formalistic implementation of it by the Council often works against the individuals and entities being caught by financial sanctions. The present paper suggests a means to apply a more creative approach and to use in CFSP litigation what in boxing is described as a "Sunday Punch." Listed entities must act quickly, very proactively, and on a multi-jurisdiction level to get the most out of the fight against the listing.
Access to (Confidential) Data in EU Trade Defence Proceedings
Authors: Antonini Renato
Published: March 2022

In trade defence proceedings, confidential information warrants protection. At the same time, access to confidential information can be vital for interested parties to defend their interests. The system in place in the European Union ('EU') does not allow interested parties to access confidential information. This article provides some suggestions concerning the possible introduction in the EU of a mechanism whereby, under certain conditions, representatives of interested parties are allowed access to the confidential information submitted by all other interested parties.
Gone with the Wind III: Ralls Historic Appeal and Lessons for Foreign Investors
Authors: Hari Hrishikesh , Zucker Jeremy , Dholakia Darshak
Published: March 2022

An unexpected July 2014 decision of the U.S. Court of Appeals for the District of Columbia Circuit pertaining to the Committee on Foreign Investment in the United States (CFIUS) merits consideration by both foreign investors and the U.S. national security community. Reversing a decision of the District Court below, the Circuit Court found that CFIUS and the President denied Ralls Corporation (Ralls), a foreign investor, its constitutionally protected due process rights in connection with requiring Ralls to divest acquired property on national security grounds.

The case centered on a July 2012 finding by CFIUS that Ralls' acquisition of several windfarm projects located near a U.S. Naval facility in Oregon posed a national security risk to the United States. The President then issued an historic order-just the second of its kind-mandating the unwinding of the completed transaction pursuant to a national security review.

Ralls then took CFIUS and the President to court, arguing CFIUS and the President denied its due process. Between two hearings in February and October 2013, the District Court dismissed all of Ralls' claims, finding national security interests outweighed Ralls' interest in learning the specific grounds for the President's divestment order. In the recent decision, the Circuit Court reversed and remanded to the District Court, finding CFIUS and the President failed to give constitutional due process to Ralls. The Circuit Court also ruled that CFIUS must share all unclassified information on which it relied and provide Ralls an opportunity to rebut.

As we explore below, the Circuit Court's decision could impact the CFIUS review process and considerations for foreign investors. Even if the decision ultimately does not stand, as we have discussed at length in companion articles, the Ralls case underscores the importance for potential foreign investors in the United States to carefully consider CFIUS issues early in the investment process.
Can a Gender-Sensitive Approach to WTO Regulation Enhance Womens Contribution to the Global Economy?
Authors: Munin Nellie
Published: March 2022

The World Trade Organization (WTO) is the leading global regulating authority with regard to international trade in goods and services. Through a network of multilateral agreements concluded by more than 150 countries, it determines rules and disciplines affecting the entire global trade arena. Since its establishment, the WTO exercises an allegedly 'neutral' regulation policy, indifferent to gender, justified on grounds of desired equality. However, this 'neutral' regulation is criticized for pragmatically causing gender discrimination in certain cases, reinforcing it in others. In recent years, the global economic implications and cost of this policy are widely recognized. This article explores ways to bridge the gap between the two conflicting approaches, to enhance women's access to international trade and their contribution to the global economy.
The WTO Legality of the Withdrawal of Tariff Preferences Based on Human Rights Violations: The Case of the EU GSP in Cambodia
Authors: Évora Sara Núñez
Published: March 2022

This article provides a legal analysis of the World Trade Organization (WTO) legality of the withdrawal of tariff preferences to Least Developed Countries (LDCs) based on human rights violations under the EU Generalized System of Preferences (GSP) Regulation. In particular, this article focuses in the alleged violations of human rights taking place in the sugar industry in Cambodia; sugar that is then almost fully exported to the EU under a preferential tariff scheme for LDCs ('Everything But Arms' scheme). The EU GSP Regulation has its own withdrawal mechanism under which tariff preferences can be withdrawn based on human rights violations. WTO law, however, and in particular the Enabling Clause, is silent on this matter. The article concludes that under WTO law tariff preferences can indeed be withdrawn based on human rights violations, and that the EU GSP Regulation would comply with the requirements for this withdrawal.
Mirror Analysis: Customs Risk Analysis and Fraud Detection
Authors: Cantens Thomas
Published: March 2022

This paper summarizes and proposes a methodology to support risk analysis and enforcement policies against Customs fraud, based on the use of mirrored data. The mirror analysis involves comparing mirror imports (or exports) of a country with exports (or imports) reported to this country by its partner countries to detect gaps in terms of quantities, weight or value that may unveil fraudulent flows or practices. This paper describes how this method has been applied in two WCO Member countries and summarizes its potential uses.
An Overview of EU Sanctions Case Law
Authors: Masi Lorenzo Di
Published: March 2022

The article provides an overview of the key features of the European Union (EU) case law on sanctions. In particular, it analyses the grounds available to individuals or entities subject to EU sanctions to seek their annulment before the EU jurisdictional organs. These grounds include, most notably, the violation of essential human rights, the failure by EU institutions to state reasons and manifest error of assessment. Moreover, the article discusses the most relevant preliminary rulings on the interpretation of EU sanctions measures delivered by the Court of Justice of the European Union, as well as actions for damages and interim relief.
A Short Guide to Contracting in International Trade
Authors: Jaradt Nashat Mahmoud Abdalla
Published: March 2022

International Trade Contracts have facilitated global commerce for decades; with the ongoing technological advances in society at large, the need to import and export raw materials and finished products have become centre place to most global economies. Within these contracts, there are highly defined terms that are set to determine liability at every point throughout the transaction. Ensuring that there are set methods of arbitration and jurisdictional cognizance between parties requires that parties enter into contracts that are clear and comprehensive. This article assesses international trade contracts at large in order to make recommendations for best practices for traders wishing to enter into such contracts.
The Status and Effect of WTO Law Before EU Courts
Authors: Pickett Eric
Published: March 2022

The legal status and effect of World Trade Organization (WTO) law before European Community (EC)/European Union (EU) Courts has been a contentious issue right from the very beginning. Although there have been a number of cases in which the Court of Justice of the European Union (CJEU) has addressed the issue, the rulings have left practitioners guessing as to the applicability and effect of WTO provisions in specific cases. This problem most recently came to a head when the General Court (GC) annulled a regulation imposing definitive anti-dumping duties on certain aluminium foil products from Rusal Armenal, an Armenian company. The GC found that the regulation was inconsistent with the applicable WTO law (in particular the Anti-Dumping Agreement [ADA]) and therefore invalid. On appeal the CJEU set aside the GC’s judgment on the grounds that WTO law can be relied on before the EU Courts only where the EU intends to implement a particular obligation and/or where the EU act at issue refers explicitly to specific provisions of a WTO agreement. When even the GC has difficulty in correctly applying the rules concerning the applicability and effect of WTO law, it’s time to step back and take stock. In this article we analyse the judicature concerning the principles governing the application and treatment of WTO law by Union Courts and develop an analytical framework to explain when and how WTO law can have an effect before these Courts.
Will the Trade Facilitation Agreements Novel Architecture and Flexibilities Have Unforeseen Consequences? An Analysis in the Context of World Trade Organization Accessions
Authors: Czapnik Ben
Published: March 2022

When finalizing the Trade Facilitation Agreement (TFA), World Trade Organization (WTO) Members introduced a highly novel architecture by allowing developing countries to self-designate their transition periods and to make their implementation conditional on the provision of technical assistance. The WTO contains certain rules and conventions of horizontal application and it is unclear how this will interact with the TFA’s novel architecture, especially for special and differential treatment (S&DT). For example, in the context of accessions, the WTO takes a strict approach to S&DT. Acceding countries are often pressed to implement WTO commitments during accession negotiations. There is a general presumption against transition periods and, where acceding countries insist on access to transition periods, these have to be negotiated on a case-by-case basis. This convention in accession negotiations runs contrary to the highly-permissive approach to transition periods in the TFA. It thus raises the question of how the WTO should deal with S&DT and transition periods for TFA commitments in developing country accessions. This article will explore several options and conclude that WTO accessions should replicate the TFA’s permissive approach (with some minor amendments).
Rules of Origin and the Anti-Dumping Agreement
Authors: Saluste Maarja
Published: March 2022

This article analyses the position and the legal effect of the Agreement on Rules of Origin (ARO) during the harmonization work programme (HWP) and after, with a focus on Article 1 of the ARO and the application of anti-dumping duties. Article 1 of the ARO lists various non-preferential commercial policy instruments where rules of origin play a crucial role. This includes the application of anti-dumping duties. The Members of the World Trade Organization (WTO) should have harmonized rules of origin in their legislation since 1998. However, the HWP is still on hold and has not been finalized. Often it is said that the application of anti-dumping duties is the reason why HWP is not concluded. Members of the WTO also argue whether non-preferential rules of origin are at all necessary. The focus has shifted away from non-preferential rules of origin, because of the proliferation of free trade agreements. However, this should not be the case as Article 1 of the ARO and the rules applicable during the transition period create specific obligations to WTO Members that should eliminate the questions Members raise to block harmonization of rules of origin.
The UKs WTO Schedules
Authors: Bartels Lorand
Published: March 2022

This article argues that the EU's GATT and GATS schedules are binding on the UK in its own right, in respect of UK territory, and will continue to be binding on the UK following Brexit. Establishing a new schedule is straightforward except for a small minority of commitments expressed in quantitative terms. Determining the UK's share of these quantities depends on identifying the correct legal principle, and this would be best done by the agreement of any affected exporting WTO Members. If such agreement fails, however, the UK's obligations are limited to compensation for any trade damage, set against the benchmark of its existing commitments. Any such damage is likely to be slight, and relatively easily compensable. In other words, the UK's position in the WTO post-Brexit is much more secure than many have said.
Emerging Issues in Free Trade Agreements
Authors: Naas Penelope
Published: March 2022

As technology evolves and global commerce soars, both governments and businesses need to think critically and creatively about the new issues that should be included in free trade agreement (FTA) negotiations. Chapters on e-commerce, cryptography, and genetically modified foods are just some of the issue now addressed in trade agreements. Other emerging issues include small and medium size enterprises (SMEs), investment facilitation and gender, which have been proposed in recent FTAs. This article presents a deep dive into the elements of a FTA, from tariffs and agriculture, to e-commerce and investment. It will look at current developments taking place in FTA negotiations, citing different examples with a focus on Europe.
A Series of Sales: Determining the Customs Value Under the Union Customs Code
Authors: Schippers Martijn L.
Published: March 2022

New customs legislation – the Union Customs Code – became applicable in the EU on 1 May 2016. These new regulations seem to abolish the use of the ‘ first sale for export ’ rule for determining the customs value and introduce the ‘ last sale for export ’ rule. Although the EU is clearly attempting in this way to increase the revenue derived from customs duties, it is questionable how the new provisions for determining the customs value should be interpreted. This contribution discusses the technical and practical consequences of introducing the ‘ last sale for export ’ rule, while also examining how the introduction of this rule in the EU fits into a global pattern of customs valuation systems shifting from a first sale to a last sale rule.
Indias Experience with the WTO Agreement on Textiles and Clothing
Authors: Kishore Pallavi
Published: March 2022

Trade in textiles was long regulated outside the rules of multilateral trade leading to advantages for some and disadvantages for others. The Uruguay Round (UR) recognized the need for coverage of the textiles sector by the rules of multilateral trade and the World Trade Organization (WTO) Agreement on Textiles and Clothing (ATC) was negotiated for this purpose. This article will focus on the laws used to exclude the textiles sector from multilateral trade before the WTO and the regulation of this sector after the UR as well as the experience of India with the ATC.
The Court of Justice of the European Union Judgment in the Hamamatsu Case: Defending EU Customs Valuation Law from the Transfer Pricing Folly in Customs Matters
Authors: Beretta Laura Carola , Smiatacz Agnieszka
Published: March 2022

In the last few years there has been a tendency by most of the companies in the European Union and elsewhere to indiscernibly rely on the so-called transfer pricing agreements together with related to them studies, which are tax law matters, also for the determination of the customs value for customs valuation purposes. This practice seems to be highly questionable taking into account the different natures and objectives of tax and customs law. With the Hamamatsu judgment, the Court of Justice of the European Union restores the order in such matter by reaffirming the primacy of pure customs valuation rules and providing for a clear refusal for the automatic application of the transfer pricing agreements to the customs valuation of goods. This judgment is fully in line with previous case law on the nature of the customs valuation rules and objectives. As a result, the Hamamatsu judgment created justified concerns to those companies that have unjustifiably relied on transfer pricing methodologies also to adjust a posteriori the customs value of goods. However, the Court of Justice has done nothing more than reaffirm the obvious. Following the ruling, companies will have to set up a proper customs valuation assessment system, which are separate from the transfer pricing one. Nevertheless, this does not mean that transfer pricing studies are not to be taken into account as ‘context’ for such customs valuation purposes.
Determination of Customs Value and Warranties: Lessons from the Recent Case Law of the European Court of Justice
Authors: Grigorova Jenya , Willems Arnoud
Published: March 2022

The European Court of Justice (CJEU) recently interpreted the rules of the Community Customs Code (CCC) and its Implementing Provisions (CCCIP), regarding the determination of customs value in situations where the seller of goods grants a price reduction to the buyer, pursuant to a contractual warranty, because of a manufacture-related risk that the goods might be defective (X BV v. Staatssecretaris van Financiën).

This article provides an overview of the issue of determining customs value in case of warranties, a summary and a legal analysis of the Court’s reasoning, and highlights how this reasoning might coexist with the new Union Customs Code (UCC) and its Implementing Act (UCC IA).
Admissibility of Actions Brought by the Union Industry: Timex Revisited
Authors: Tuominen Nicoleta
Published: March 2022

Timex remains good law. However, that is not all. Through the General Court’s very open approach to admissibility in Case T-431/12 Distillerie Bonollo, Timex has gained new momentum, was picked up, dusted off and promoted to the status of reference case law on the admissibility of actions brought by the Union industry. However, let us keep in mind the judgment in case T-431/12 is currently under appeal. Hence, the Union industry’s (deserved) bonanza may risk being short-lived.