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Updates and Notes

This page contains details of the most recent updates to our publications, as well as notes on developments between updates and on other issues of interest.

ITR = International Trade Regulation
EUAD = EU Anti-Dumping and Trade Defence Law and Practice

Last Updated: June 16, 2021

May 2021
New update for International Trade Regulation (Issue 49) in printed and digital format.

The block on the operations of the Appellate Body continues, despite the change of US Presidency. However, panels are still being established. Ten got underway during 2020, and two in the first four months of 2021.

Six panels reported during 2020 and two have reported in 2021. All of these reports have been appealed, and are therefore blocked, along with six from 2019 and five from 2018. As a consequence, none of these reports has been adopted by the DSB, so there is no question of the successful actions leading on to compliance proceedings or to retaliation being authorised for failure to implement panel recommendations.

However, the reports have not simply been left to gather dust. In an interesting development, rulings and interpretations in these unadopted reports are being cited by later panels in a manner no different from their citations of adopted reports.

As a result, and changing the previous practice of this volume of waiting until reports were adopted, we will now take the same approach and will incorporate relevant elements from unadopted panel reports. Because of the large number of such reports that has built up this process is being spread over the current and the following Issues (49 and 50). The fact that these reports have not been adopted will be noted in the footnote citations.

The new reports contain many noteworthy points. Two of the cases concerned the relatively untouched topic of customs valuation and the interpretation of the Customs Valuation Agreement. Other topics covered include the Safeguards Agreement, and the SCM Agreement.

Perhaps encouraged by the block on appeals, a panel has once again taken an unorthodox view of the practice of zeroing in the calculation of dumping margins. This time it concerns the Appellate Body's notion of a 'pattern' of exceptionally priced imports. Another familiar issue that has arisen in this context is the use of 'facts available' to impose prejudicial rates of duty.

Finally, it is worth mentioning the untypical Energy Package case, involving the EU, which has cast light on several GATS rules.

Regarding broader WTO issues, the main current concern is how Members should react to the COVID-19 pandemic. The proposal, initiated by India and South Africa, to suspend provisions of the TRIPS Agreement relating to the 'prevention, containment or treatment of COVID-19' is proving unsurprisingly controversial. At least as initially drafted it is very broad in scope, and countries with innovative pharmaceutical industries are likely to seek more precision even if, like the United States, they show general sympathy.

The experience of the existing exception (TRIPS Article 31bis) expanding compulsory licensing of pharmaceuticals is not encouraging. It is hedged around by detailed procedures, and has hardly been used. However, it has been invoked in one instance regarding COVID-19 and maybe more will follow.

The proposed waiver would extend, in particular, to the obligations on Members to protect patents and 'undisclosed information'. The information in patents is already public and the suspension would release firms from the ban on commercially exploiting that information.

In vaccine production, however, knowledge of the manufacturing processes is at least as important as that of the formulae of the products. These processes may not have been patented at all, but in any case many important aspects are likely to remain matters of undisclosed information ('knowhow'). Merely removing the obligation on Members to afford protection for such information does not in itself oblige them to abolish it. And abolishing the protection would not oblige the companies concerned to release the information. Drafting national laws to impose such an obligation would not be easy, and might run into constitutional difficulties.

A more immediate brake on the maximum production and distribution of vaccines and other COVID-19 medical supplies is the temptation on countries to hoard stock. This can be most obviously achieved by export restrictions, but the same effect can be obtained by government procurement or state-trading. While no doubt advantageous to individual countries the overall consequence of such measures is to introduce inefficiencies in distribution with consequent prejudice to all.

In so far as countries can be shamed out of such conduct the opportunities that WTO procedures provide for bringing it to public view contribute in some way to fighting the pandemic. Using the results of existing notification requirements the Secretariat has presented pertinent information, viz.:

'List of notifications and communications relating to the COVID-19 Pandemic', G/MA/W/157/Rev.__

'Summary of notified export restrictions and trade facilitating measures relating to the COVID-19 pandemic', G/MA/W/168.

These notification obligations are, however, limited in scope, and confined to the most explicit trade measures. Furthermore, Members are notoriously lax in their observance of the requirements. Proposals to strengthen the notification system have been stymied by opposition that invokes the increased administrative burden on weaker Members, but there is also a blunt refusal on the part of some to allow any extension of WTO obligations. In this regard the issue reflects the ongoing struggle to overcome the inhibiting effect of the WTO's consensus principle.

A TRIPS waiver is not the only pandemic-oriented proposal being considered by WTO Members. A significant group of countries (WT/GC/230/Rev.__) want the Secretariat to become involved with vaccine producers and organisations such as the WHO in ensuring that production capacity is used to the full, licensing partnerships are encouraged, and trade-related impediments to production are addressed, including the use of TRIPS options. How these goals would be implemented is not stated.

November 2020
New update - for International Trade Regulation (Issue 48) in printed and digital format.

The effects of the US block on new appointments to the Appellate Body are now being fully felt. During the last six months the last active pending appeal (Tobacco Plain Packaging, DS434) was decided, and the number of panel reports against which appeals have been lodged, but cannot proceed, has risen to almost twenty.

The block has, at least, not eliminated the interest in commencing new panel proceedings. After eight or so months of inactivity eight new panels have been established for five of which panellists have been appointed.

One of these panels (Colombia Frozen Fries, DS591) concerns parties both of which have indicated that the new MPIA procedure could operate to circumvent the stymied Appellate Body. The procedure has already been invoked in two other disputes, but it seems that only one of these (Costa Rica Avocados, DS524) is still going ahead.

It remains to be seen whether the new Administration in the US will withdraw the block on appointments.

The Tobacco Plain Packaging appeal (at 232 pages somewhat more manageable than the 888 pages of the panel report) brought some further insights into the strange world of intellectual property where, for example, having strong rights to prevent other people from using one�s trademark is no guarantee of being entitled to use it freely oneself. The Appellate Body elucidated various details of the trademark provisions in the TRIPS Agreement and the incorporated parts of the Paris Agreement.

The Appellate Body also addressed the rule in Article 2.2 of the TBT Agreement rules whereby trade-restrictive measures may be justified by their contribution to a legitimate objective. The situation appeared to be one where the �reasonably available� measures are not capable, even collectively, to achieve their stated objective. For example, many countries have policies designed to induce people to stop smoking. No one imagines that these will be completely successful, so does the reasonably available alternative principle have any relevance? The situation was similar to that faced by the Appellate Body in Brazil Retreaded Tyres (DS332), but in neither case has an appropriate test been articulated. Arguably in such circumstances a particular measure will be justified only if all less-restrictive, but equally or more effective, alternative measures are already being employed.

The one other dispute settlement report in the latest period was the Arbitrator�s decision on countermeasures in the Boeing case (DS353). This fits neatly alongside last year�s report in the Airbus case (DS316).

In this context the opportunity has been taken to rewrite a substantial part of the text on this issue, and in particular to link the general rules on countermeasures (in DSU Article 22) with those concerning prohibited and actionable subsidies (under the SCM Agreement). Both disputes illustrate the difficulty of identifying, and still more of measuring, �adverse effects� as is required in the case of most non-export subsidies. In fact, only six such claims have been taken to panels, of which four have succeeded, several requiring complex assessments. Three were followed by detailed arbitrations over the level of countermeasures, leading, in the Airbus and Boeing cases, to massive authorizations - $7 billion and $4 billion respectively.

In the Boeing case the arbitrators had to address the quantification of adverse effects (specifically �serious prejudice�) in the form of threats. They applied this notion to loss of orders that would have been made during the reference period that was used for calculating such effects, but which would have been fulfilled only after it closed. Such an approach carries a risk of double-counting. Presumably the loss of a single transaction should not be counted, as regards both the sale contract and the delivery, in calculating the value of that loss. Some of the sales that led to deliveries during the reference period, and would therefore be included as lost sales, would likely have arisen from orders made before the period.

Finally, a correction: In the text of Issue 48, in the context of sectoral safeguards, at �10.215, the following paragraph is missing from the printed edition. It follows the reference to the 2018 US measures on steel and aluminium:

�In 2018 the US denied that its measures constituted safeguard action. Nevertheless, several Members decided that they did qualify as such and took retaliatory actions. The US challenged these actions in panel proceedings. These were settled in the case of two complainants, Canada and Mexico, but those against five other Members continue (as of 2020). Nine Members initiated panel proceedings against the US for failing to respect the requirements of the Safeguards Agreement. They are uncompleted as of 2020, except that those with Canada and Mexico were settled.�

July 2020
New update - for International Trade Regulation (Issue 47) in printed and digital format.

During the last six months three Appellate Body reports and one unappealed panel report have been adopted. They cover a wide range of issues. Here are some of them.

The task of weighing trade and non-trade objectives against one another cropped up in a new context in the Russia � Railway Equipment case. Here the issue was that of trade barriers created by procedures for assessing the conformity of products with regulations, typically those concerning safety. The Appellate Body seems unwilling to recognise the features that situations such as this share with those addressed, for example, under the general exception clause in GATT Article XX. Nevertheless, its report showed a recognition of the significance of the �reasonably available alternative� as factor when determining the least trade-restrictive measure. In particular, it emphasised the relatively light initial burden on a complainant Member of identifying alternatives that would be available to the respondent. The AB has an unimpressive record on this issue, repeatedly toying with its methodology and criticizing panels but giving them little guidance on how to engage in �weighing and balancing�.

In Supercalendered Paper the AB returned to the perennial issue of �as such� and �as applied� and introduced the notion that a measure may be in more than one of these categories at the same time.

The panel in the A4 Copy Paper case examined the circumstances in which �a particular market situation� justifies the disregard of domestic sales when making a price comparison with export prices in the calculation of a dumping margin.

The US continues its blockage on appointments to the Appellate Body, and therefore of its operation. However, a significant group of Members has set up an alternative appeal procedure using the arbitration mechanism contained in Article 25 of the DSU, and a permanent list of arbitrators, corresponding to the members of the Appellate Body, is being agreed. The procedures closely follow those of the Appellate Body, and since the parties in at least two current panel disputes are among the participating Members one can reasonably expect to see them put into operation.

The Appellate Body has produced a final report � on Tobacco Packaging � unfortunately too late to be included in the present update. However, one of the original complainants did not appeal the panel report, so it was adopted by the DSB vis-�-vis that complainant. Fortunately, in examining the same text in the reports that were appealed the Appellate Body differed from the panel on only one, comparatively minor point. Therefore the present text of International Trade Regulation, which reflects the adopted panel report, also very largely states the rules as interpreted by the Appellate Body.

December 2019
New update - for International Trade Regulation (Issue 46) in printed and digital format.

Please note that in the printed update for this issue there is an error in the paging instructions:

2.23-63 � 2.24-74 ....... 2.23-63 � 2.23-74

Should read

2.23-63 � 2.23-74 ....... 2.23-63 � 2.23-74

Issue 46 takes account of five Appellate Body reports and three unappealed panel reports. It also examines two WTO arbitrations on the amount of countermeasures permitted following findings of infringement. One was under the general rules in the Disputes Settlement Understanding, and the other under the sui generis rules in the Agreement on Subsidies and Countervailing Measures regarding actionable subsidies. They elucidated several aspects of the relevant law, and in at least one respect the interpretation of a previous arbitrator was reversed. It now seems that the only way for the affected Member to force an end to countermeasures, once they have been authorized, is to bring compliance proceedings.

Members of the Appellate Body occasionally enter dissenting opinions on particular issues. One such member in a recent case stated that the relevant interpretation should be taken into account in later dispute settlement proceedings. There seems to have been no report in which the Appellate Body has admitted to taking such a step. The issue concerned the notion of �public body� regarding the element of financial transfer in the definition of �subsidy�.

In the years since the WTO�s creation the typical length of members submissions to dispute settlement bodies has very substantially increased. Now, for the first time, in one of the arbitrations regarding the level of countermeasures a limit was imposed on the number of pages.

The block imposed by the US on further appointments to the Appellate Body, along with the reduction in its budget allocations, are effectively bringing its activities to an end, at least for the time being. Only three ongoing appeals will be dealt with: Russia - Railway Equipment (DS499); US - Supercalendered Paper (DS505); and Australia - Tobacco Plain Packaging (DS441/DS435). That leaves about ten appeals that are pending.

Although the US action constitutes a major blow to the dispute settlement mechanism, it is not a fatal one. Members have been put into roughly the situation that prevailed under GATT, under which participation in adjudication could be blocked, albeit at some political cost.

However, unlike the GATT world, Members cannot now prevent a panel from examining and ruling on a complaint. In addition, the blocking of further proceedings will require a Member to take explicit action, that is to notify an appeal, which is inherently tinged with duplicity.

Panel reports that are not appealed will proceed to adoption by the DSB, and, as has happened in at least one case, parties may agree in advance not to lodge an appeal. Over the years a significant minority of panel reports have not been appealed (but the new situation will no doubt tempt unsuccessful litigants to do so, and thereby block the proceedings, where they might previously have accepted the panel report).

Furthermore, parties may find a substitute for the present procedures, using the arbitration provisions in the DSU. The EU and Canada have proposed a model, and this, and other such proposals for bypassing the blockage are outlined in Issue 46.

By blocking proceedings following a panel finding of WTO-inconsistent conduct a Member will be able avoid the individual legal consequences, up to and including the imposition of countermeasures, to which that finding could otherwise lead. The rulings in the unadopted panel report will also have no precedential force, but then neither, formally, do interpretations of the Appellate Body. Later dispute settlement bodies will be free to adopt the logic of unadopted panel reports where they find it persuasive. And where the arguments before them are evenly matched such bodies will no doubt have in mind the Appellate Body�s preference for respecting precedent as a way of achieving the security and predictability in the multilateral trading system that is endorsed by the DSU.

October 2019
New update � Issue 98 (October 2019) � for EU Anti-Dumping and Trade Defence Law and Practice, in digital form. This is the final edition of this publication.

The new rules for disregarding the exporter�s data when �significant distortions� are found in the economy are now applied regularly in anti-dumping proceedings involving exports from China. The results of the Commission�s report on China are referred to at length. The new rules involve resort to data from companies in a �representative� rather than an �analogue� country, although the issues that arise are similar to those previously considered. What is significant is that now only cost data is taken into account.

The latest period has seen a larger than usual number of General Court and Court of Justice judgments on trade defence issues, including a flurry in late September. They have made significant interpretations in a wide range of contexts.

May 2019
New update � Issue 97 (May 2019) � for EU Anti-Dumping and Trade Defence Law and Practice, in digital form.
March 2019
New update - for International Trade Regulation (Issue 45) in printed and digital format.

This update covers the two Appellate Body reports issued since the last update, as well as three panel reports and an arbitrator�s decision on the level of nullification or impairment.

The long-awaited panel report on Australia � Tobacco Plain Packaging runs to more than 3000 paragraphs, and covers a number of provisions of the TBT and TRIPS Agreements, as well as Article IX of GATT. Its adoption by the DSB creates a curious, and unprecedented situation. While two of the complainant Members decided to accept the panel report the other two chose to appeal. The adopted panel report is now being considered by the Appellate Body, which may well reach different conclusions on its legal interpretations, and its report will in due course also be adopted.

Much of the case focussed on intellectual property issues, and specifically on trademarks and geographical indications of origin, and on the interpretation of the provisions of the Paris Convention that are incorporated by reference into the TRIPS Agreement. The Convention exposes WTO participants to the subtleties of intellectual property logic. Inter alia the report elaborates the concept of �unfair competition�, found in the Paris Convention and previously not significantly addressed by a WTO dispute settlement body.

Although not needed for its determination, the panel ruled that the qualified obligation to use international standards that is contained in TBT Agreement Article 2.4 does not apply where such standards are mandatory. The non-mandatory character of national standards is well-known, but the application of the same criterion to international standards is inappropriate. The point is of limited practical importance because international standards, such as those adopted by the ISO, are generally voluntary in character. The regulations adopted under the 1958 and 1998 Vehicle conventions are an exception since participating states are in varying degrees bound to adopt them. Under the panel�s interpretation, unlike other international standards, compliance with such regulations would create no presumption of compliance with the obligation not to create unnecessary obstacles to international trade.

A further Appellate Body ruling in the Tuna II dispute between Mexico and the US once again drew attention to the similarity between the notion of necessary measures in the GATT Article XX General Exception clause and the obligations in Article 2 of the TBT Agreement regarding trade restrictive regulations. In the former context there is a concept of the measures being no more restrictive than necessary to achieve the specified goal (e.g. protection of human, animal and plant life or health). Under the TBT Agreement the Appellate Body has spoken of the need to calibrate distinctions in regulatory treatment with the degree of risk to legitimate objectives. However, there has as yet been no suggestion that the concept of disproportionate action, which is found in Article XX, should be taken up in the TBT Agreement.

In Brazil � Taxation the Appellate Body examined the exemption of subsidy payments to domestic products from the prohibitions on discrimination in internal measures contained in GATT Article III. Controversially (and by a majority) it held that in this context the notion of subsidy is confined to expenditure of revenue by a government and does not cover, for example, the exemption or reduction of internal taxes.

December 2018
New update � Issues 96 (November 2018) � for EU Anti-Dumping and Trade Defence Law and Practice.

Union practice on trade defence shows an increasing reliance on WTO rules, both those set out in the Anti-dumping and Subsidies Agreements, and those enunciated by dispute settlement bodies. While maintaining respect for the limited circumstances in which EU rules are actually to be interpreted in line those of the WTO, both the Commission in individual decisions and the Courts in their judgments.

October 2018
New update - for International Trade Regulation (Issue 44) in printed and digital format.

During the period since the last update four Appellate Body and associated panel reports, as well as four unappealed panel reports have been adopted by the DSB, and there has been one arbitrator�s award regarding the �reasonable period� for implementing reports. These have resulted in numerous changes to the text.

This update also contains a much revised chapter on GATS. One aim of the changes has been to make GATS more comprehensible by emphasizing its similarities with the rules on trade in goods, as well as its differences. For example, the rules on domestic regulation in the TBT and SPS agreements are echoed, albeit faintly, in GATS. Likewise, both GATT and GATS make provision for economic integration through the removal of barriers to trade between participating countries, but there are no GATS rules corresponding to those in GATT that address the harmonization of external trade barriers of such arrangements in the form of customs unions.

The consequence of these changes is that this update is one of the largest that we have produced.

Here are a few points from the Appellate Body reports.

In the Commercial Vehicles case the Appellate Body addressed the uncommon situation where a national authority is accused of falsifying evidence in an anti-dumping investigation. Its advice to the panel was that it should elucidate the truth by posing specific questions regarding the origin of the suspect document and the point of time when it was incorporated in the investigation record. Several other matters relating to the administration of trade defence rules were also addressed.

The Appellate Body was also concerned with trade defence measures in a case concerning EU imports of PET from Pakistan, in which it made some important observations on the nature of causation, in particular regarding �other factors�.

In a third trade defence dispute (Indonesia � Iron or Steel Products) the Appellate Body made a ruling on the nature of safeguard action which has implications for the outcome of the challenges currently being made to the increased tariffs imposed by the US on steel and aluminium imports. It held that unless a measure involves a suspension of GATT obligation, or the withdrawal or modification of a GATT concession, with the objective of preventing or remedying injury to domestic industry it is not a safeguard measure, regardless of what it is called. The interesting question is whether the converse also applies � if those factors are the justifications for a measure, is it subject to the GATT disciplines on safeguard action regardless of the other purposes for which it might have been introduced?

Finally, in a further episode in the Boeing/Airbus saga the Appellate Body was faced with identifying subsidies among the complex set of financial arrangements surrounding the development of various Airbus models. It gave rulings on quite a number of aspects of the SCM Agreement. It also made some progress in establishing the respective roles of itself and of panels in determining the meaning of national law. However, it remains reluctant to treat the issue in accordance with the traditional international law view that such determinations concern questions of fact. For that matter, when faced with making such a determination no panel has taken the logical step of inviting expert testimony from national legal experts.

June 2018
New updates � Issues 94 (March 2018) and 95 (June 2018) � for EU Anti-Dumping and Trade Defence Law and Practice, in printed and electronic form.

These updates take account of two rounds of important amendments to EU trade defence measures (as well as recording recent interpretations of the measures in the EU courts and in Commission decisions).

First, in December 2017 the Anti-Dumping Regulation gained a new concept of �significant distortions�, which arise when reported prices or costs in an exporting country are not the result of free market forces because they are affected by substantial government intervention, and which allow the use of undistorted data in the determination of normal value when calculating the margin of dumping. The concept is to be supported by Commission reports on the economies of relevant exporting countries which provide the basis for identifying such distortions. The only country so far targeted in this regard is China. The previous special rules for non-market economies, involving reference to prices of companies in analogue countries will no longer apply. The changes apply to new expiry reviews as well as initiations, and are being invoked in several reviews commenced in 2018.

Second, in June 2018 substantial changes were made to both the Anti-Dumping and Anti-Subsidy Regulations, which included, most notably: a pre-disclosure period of three weeks after information is made public during which provisional measures will not be applied; measures to discourage exporters avoiding duties by stockpiling products; facility for the Commission to self-initiate investigations; a right for trade unions to submit complaints; reduction of the normal investigation period to seven months, with definitive duties to be imposed within 14 months; facility for higher duties to be imposed where there are raw material distortions, involving abandoning the lesser duty rule; possibility of reimbursement of importers when expiry reviews do not result in the extension of measures; and the opportunity to take into account social and environmental standards when assessing undertakings and establishing injury elimination margins.

These changes apply to new initiations only, so the old rules will continue to apply not only to existing investigations, but to reviews of existing measures. As a result these rules will continue to be relevant for many years.

To cope with this situation we will for the time being issue the electronic edition of EUAD in two forms, one with the 2018 changes, one without. The printed edition will appear only in the version reflecting the new rules, but subscribers may request a (free) electronic copy of the version with the old rules. In any event, future subscriptions and renewals will be confined to the electronic version.

A copy of the 2018 amending Regulation is included in Issue 95, but, because of time constraints, it has not been possible at this stage to reflect the changes in consolidated versions of the two basic Regulations.

January 2018
New update for International Trade Regulation (Issue 43) in printed and electronic form.

In light of the failure of the 2017 Ministerial Conference to produce any substantive results, the main legal developments in international trade regulation in the period since the summer are to be found in WTO case law. This update reflects three Appellate Body reports and the associated panel reports, as well as one unappealed panel report. This ratio of appealed to unappealed panel reports has become typical. The resulting increase in the workload of the Appellate Body is aggravated by the current block on the appointment of new members, the result of the United States blocking a consensus. There are presently seven appeals in various stages of being heard, and there is no prospect of any of them being concluded within the formal time limits. This number could increase since time for lodging an appeal is still available for one panel report. Panel proceedings have also become increasingly drawn out, so that the whole process, from composing the panel to adopting the reports of the panel and Appellate Body, can take up to three years. Ten years ago it was half that.

Perhaps the most significant of the Appellate Body�s rulings during this period was that in US � Tax Incentives where it found that assistance given to Boeing by Washington State that was related to the siting of aircraft construction factories did not qualify as �contingent� on the use of domestic over imported goods (SCM Agreement, Article 3.1(b)) and was therefore not a prohibited subsidy. It was irrelevant that an increase in the use of domestic goods could be expected to follow from the assistance, unless that was imposed as a condition. There is some danger that in setting such a demanding standard the Appellate Body is facilitating evasion of the rule on prohibited subsidies by means of clever drafting. Of course, it would still be possible to attack such arrangements as �actionable� subsidies, but that would carry with it the difficult task of establishing adverse effects of some kind.

A word on editorial policy. Before modifying the text of International Trade Regulation we wait for the adoption of the reports by the DSB, or at least the publication of an Appellate Body report. While this policy ensures that only authoritative reports are included in the text it has the drawback that readers are left ignorant of published panel reports that are subject to appeal, a problem accentuated by the delays described above. It can also happen that the period for appealing a panel report has not expired before our publication date. Until now such reports, although included in our online list of cases could not be easily identified. In future these reports will be marked �Appeal pending or possible� in the online list, so that they can be located by searching it for this phrase.

November 2017
New update (Issue 93) for EU Anti-Dumping and Trade Defence Law and Practice, in printed and electronic form.

The period since July has been a relatively quiet one, with only two judgments, one each from the Court of Justice and the General Court. Two anti-dumping and two anti-subsidy investigations have been commenced, along with three expiry reviews, and five partial interim reviews.

The Comitology procedure came fully into play for the first time regarding an anti-dumping measure when a proposal went to the appeal committee. The Commission presented an amended proposal in line with the chairman�s (i.e. the Commission�s) indication of what would secure the broadest support; it was adopted.

Once again claims against an anti-dumping measure have been pursued both before the Union�s courts in Luxembourg (e.g. Case C-468/15 P) and via the WTO�s panel and Appellate Body procedures in Geneva (EU � Fatty Alcohols (Indonesia)). The Union�s method of calculating allowances for differences between export price and normal value was successfully defended in both contexts. However, the WTO panel found that a particular disclosure obligation in the Anti-Dumping Agreement (not found in the EU regulation) had not been complied with, and the EU chose not to take the point to the Appellate Body. It was not raised in the EU proceedings.

The Court of Justice has confirmed (Case C-205/16 P) that where an appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be raised again in the course of an appeal.

September 2017
New update for International Trade Regulation (Issue 42) in printed and electronic form.

The most extensive changes in this update are those consequent on the coming into force of the Trade Facilitation Agreement. Although ITR is focused on trade regulation rather than customs law, the fact that the new Agreement falls under the aegis of the WTO, by being added to the list of �covered agreements�, justifies its inclusion. Chapter 7 has been considerably expanded to include the new rules. Some of the ground that they cover is the subject of provisions in other customs arrangements, notably the Revised Kyoto Convention, and appropriate references are made to these.

The TFA was beaten, by only a few days, to first place in the list of amendments to the WTO by the coming into force of the changes to the TRIPS Agreement. These concerned compulsory licensing of pharmaceutical drugs, but the changes were largely formal since the substantive rules had already been introduced by means of a waiver.

Five panel reports, two Appellate Body reports, and two arbitrators� decisions are covered in this update. In US � Anti-Dumping Methodologies (China), the Appellate Body again addressed the notion of a �measure� that is capable of being the subject of dispute proceedings, further elaborating the notion of a rule or norm of general and prospective application.

The DSU Article 22.6 arbitration in the US � Tuna II case clarified a number of elements of the law governing such proceedings.

Some important interpretations of the rules in GATT Article XXVIII regarding modification of schedules (for example, concerning the significance of certification) were made by the panel on EU � Poultry Meat (China). The issue has contemporary relevance in the debates on the implications of Brexit for the position of the UK in the WTO. The panel also elucidated the terms of GATT Article XIII regarding the distribution of tariff quotas. The report was not appealed.

Quite a number of the WTO rules on trade defence have been addressed in dispute settlement reports during this period. For example, the Appellate Body in US � Anti-Dumping Methodologies (China) further refined its interpretation of the rules on dealing with targeted dumping.

SPS measures have once again been a focus of attention. The panel report on Russia � Pigs (EU) looks in particular at the issue of pest- and disease-free areas, which is covered in some detail in the SPS Agreement.

July 2017
New update (Issue 92) for EU Anti-Dumping and Trade Defence Law and Practice, in printed and electronic form.

Since the last update there have been almost 50 reports relating to Commission anti-dumping and anti-subsidy investigations, three Court of Justice judgments (and several opinions), and four (and one order) of the General Court. Here are some of the points that have come up.

In its judgment in Case C-511/09 P, Dongguan Nanzha Leco Stationery v Council, the General Court rejected the Commission�s argument that, in the interest of equal treatment, a Chinese exporter should be denied access to information provided by a company in an �analogue� country even when, unusually, that company was willing to allow such access.

In an anti-subsidy investigation involving Chinese exporters of steel flat products the Commission once again encountered a wide-scale refusal to cooperate on the part of both government and (apparently) private financial institutions, as well as from some exporters. However, the investigation demonstrated that it has now amassed a considerable body of information on Chinese subsidy practices, using which it can reach what on their face appear to be convincing bases for calculating specific amounts of subsidisation.

These investigations also provide an occasion for exploring the notions of �public body� and �entrusting or directing a private body� found in the definition of subsidies. Although, as the WTO Appellate Body has ruled, mere state ownership is not enough to create such a status, when �facts available� are invoked, the Commission will treat the fact of ownership as significant.

The Commission has become less reticent in making explicit references to its 1998 Guidelines for calculating subsidies.

In an investigation involving importers related to exporters of iron and steel products the Commission gave a useful list of five factors that led it to deny the existence of a �single economic entity�.

Regarding determinations of injury, the Commission has clarified its practice regarding cumulation of imports that are the subject of separate investigations.

Finally, the Trade Barriers Regulation, unused since 2008, has been called into play in respect of Turkish measures affecting the import of uncoated wood-free paper.

July 2017
Brexit will require a massive development of customs facilities and personnel in the UK, and in the EU. This exactly coincides with the coming into force of the WTO�s Trade Facilitation Agreement, a major part of which is explicitly devoted to radical improvements in the customs operations of developing and least-developed countries. These countries are being asked to commit to specific dates over the next few years for achieving these improvements, and are promised �assistance and support for capacity building� by developed donor countries.
March 2017
New update (Issue 91) for EU Anti-Dumping and Trade Defence Law and Practice, in printed and electronic form.

There have been three Court of Justice judgments since the last update, and seven (four separate issues) of the General Court (some of which might yet be appealed). The same period saw about 20 decisions imposing or amending duties, or terminating investigations.

Regarding judgments, in Case C-468/15, P PT Musim Mas v Council, the Court of Justice returned to the knotty problem of the �single economic entity�, this time in the context of a producer selling through a distributor. The Court also made observations on when related companies could be presumed to be operating independently in the context of adjustments to be made when making price comparisons. In other judgments the Court explained the allocation of the burden of proof in anti-circumvention actions, and ruled on the distinction between errors of law on those of assessment.

The end of the period was marked by two massive reports (one on dumping the other on subsidies) in expiry reviews on photovoltaic modules and cells originating in China. Since the issues were largely factual the reports do not feature greatly in the update. The subsidies report is notable for its account of the persistent lack of cooperation from the Chinese authorities. The reviews ended in the measures being extended for a further 18 months.

March 2017
More on Brexit and the WTO

What would be the UK�s WTO schedules following Brexit?

The schedules of WTO members are linked to the obligations set out in GATT Article II:1,* most notably that in Article II:1(a) not to accord to the commerce of other Members treatment less favourable that that stated in the schedule, and (in similar terms) in GATS Articles XVI, XVII and XVIII.

All WTO members, including the UK, have schedules. The UK�s schedules are unusual in that they are shared with the EU and the other 27 EU members, but they are nevertheless schedules of the UK. The mere fact of leaving the EU does not affect this legal situation. The UK would retain its schedules, as well as the obligations that go with them. There is nothing in the various WTO agreements, such as the Marrakesh Protocol to which the GATT schedules were annexed, to justify a unilateral ending or amending of the schedules, and obligations stemming from them, merely because of Brexit.

The UK has indicated that it will take on the existing schedule, but such a step is far from straightforward. The obligations in the schedules are mostly set at an EU level, but the UK, not being in the customs union, will be not able to promise access outside its own territory. As a consequence some of the obligations will be difficult, if not impossible for it to fulfill.

Taking the obligations in turn, the most straightforward (and also the most common) are the �bindings� of the maximum levels of customs duty that may be imposed on imports. They are typically expressed as a percentage of the value of the goods. It might seem that the UK could satisfy its obligations under GATT Article II:1(a) merely by adopting the same levels of bindings as are found in the EU�s schedule. However, such action would not be sufficient. The obligation undertaken by the UK, and its partners in the EU, is to respect the binding in regard to imports to the whole of the EU. That obligation would not be respected if, say, goods on which the bound duty had been paid on import at Southampton, then had to pay a further duty if they were shipped on to Rotterdam. The criterion to be applied in this context is that of maintaining not merely the same tariff level, but the same �conditions of competition� as prevailed when the schedule was adopted.[Panel report EC � IT Products, paras. 7.757 et seq.] The UK could ameliorate the situation by allowing the goods to be placed under a special, duty-free regime while passing through its territory. However, not all traders could take advantage of such arrangements (for example, a wholesaler in the UK with retail customer elsewhere in Europe), and the arrangements themselves are clearly more onerous than the free movement that applies pre-Brexit.

Of course, in the situation described here the exporter could avoid double duties by shipping the goods directly to Rotterdam. The degree of deterioration in the conditions of competition is therefore limited. Nevertheless, by placing exporters in a position where their goods could incur double duties the UK (and the EU) would be adversely affecting those conditions and so would be failing to respect the obligations imposed by Article II.

The other obligations arising from the EU�s schedules should be viewed in the same light. There are two particular problems: tariff quotas (i.e., lower tariffs on a specified yearly volume of imports) and agricultural subsidies (i.e., limits on the yearly level of subsidies that may be granted). In the EU�s GATT schedule both of these are set at the level of the whole EU. Thus the UK would be obliged to accept any part of an unfilled agricultural tariff quota should an exporter choose to land goods in the UK. The UK�s obligations would diminish as the tariff quota had been filled elsewhere in the EU. Similarly, the maximum level of agricultural domestic subsidy would have to be respected across the UK and EU. If France gave subsidies up to the maximum level the UK would be correspondingly denied that right.

In any event, the UK has already acted in a way that denies other WTO members the competitive advantages stemming from the EU�s concessions and commitments in the 1994 WTO agreements in ways that could not reasonably have been expected when they were concluded. Such action constitutes �non-violation nullification or impairment�, as defined in Article XXIII:1(b) of GATT. The situation described above, of exports arriving in the UK and then being shipped to Holland is precisely one where a particular competitive advantage, conferred by the EU schedule, has been undermined. The UK�s proposed action is already affecting traders, who are now having to alter their arrangements in order to deal with that situation (most obviously by exporting directly to the post-Brexit EU).

Arguably the UK�s plan to abandon the customs union already constitutes a breach of Article II. The traditional GATT rule was that measures which would infringe obligations if they were implemented, would not be inconsistent with GATT obligations unless that implementation was mandatory. However, the Appellate Body has indicated that a strict mandatory/non-mandatory distinction does not define the limits of GATT responsibility. The level of political commitment to ending of the customs union could be a significant factor in this regard.

The UK could be exposed to criticism on these grounds in the various WTO political bodies, but the issues would come to a head only if another WTO member chose to make them the subject of dispute settlement proceedings. The likelihood of such action would no doubt depend on what the UK offered in the course of negotiating changes to its schedules, a topic examined in the following section.

How could the UK alter its schedules?

Even without the difficulties described above there are reasons why the UK would wish to change its schedules following Brexit. For example, in the present schedule the �specific� duties (tariffs charged at a fixed monetary amount per kilo, etc.) are denominated in Euros.

The schedules are treaty obligations, and the basic rule of international law is that, subject to the rules of the treaty, such obligations cannot be changed without the agreement of all parties. The WTO does have specific rules for modifying the obligations set out in schedules without having to obtain such comprehensive agreement. They are found in Article XXVIII of GATT, and Article XXI of GATS.

However, the situation has become confused by the existence of a procedure, originally adopted by GATT in 1980, for �certifying� changes to schedules. Put simply, if changes are achieved by one of the various permitted means, and no WTO member objects to them within a set period, they are officially recorded. It sometimes happens that members do make such objections, and certification of the modification is to that extent denied. However, this is not to say that the modification, having satisfies the relevant WTO rules, is not justified. This point would be established should the objecting member take the matter to a dispute settlement panel. For this to happen it would have to argue that the member making the modification was not respecting its obligations under, in the case of GATT, Article II. Suppose that, prior to joining the EU, Bulgaria had a binding of 5% on widgets, and that (following the procedures described below) it then adopted the EU binding of 10% on widgets, and charged that on imports. Another member might claim that the EU had not properly observed the GATT rules on forming customs unions, and was therefore not entitled to impose duty at that level on Bulgarian imports of widgets. Notice that the claim would be made (under GATT Article II) against the duty imposed vis-�-vis the 5% binding, not as regards the purported new level of binding. However, the member concerned would doubtless also state its objection to the certification of the new EU, inclusive of Bulgaria, schedule.

Thus, the crucial issue is not the certification, but the justification for the modification. (Arguably, if there are no objections to certification it might be said that, all members having assented, the treaty obligations had been correspondingly amended, irrespective of whether the modification procedures had been followed.)

Although there is no provision in the WTO agreements that specifically addresses the situation of Brexit, the rules regarding the formation of customs unions and free-trade areas give an indication of how this gap should be filled. GATT Article XXIV:5(a), regarding the formation of customs unions, requires that the duties and other regulations of commerce imposed at this point be no greater than the previous general incidence of such duties and regulations. GATT Article XXIV:6 provides for negotiations under Article XXVIII in the case of increased tariffs that are not offset by others that are decreased. The 1994 Understanding on the interpretation of Article XXIV says that such negotiations should be commenced before the changes are made.

Thus, the relevant procedure for dealing with schedule modification is that set out in Article XXVIII. In any event, whether or not the matter is treated as one falling under Article XXIV:6, it is the view of the Appellate Body that any modification of a GATT schedule requires resort to the Article XXVIII procedures.[ Appellate Body reports EC � Bananas III (Article 21.5 � Ecuador II), EC � Bananas III (Article 21.5 � US), paras. 450 et seq.] And this provision has the advantage, mentioned above, of allowing adjustment of the obligations in schedules to be achieved by agreement with a limited number of members, i.e., those defined in that Article as having negotiating rights, or even, in the last resort, by unilateral action. Without such a provision any member that felt itself damaged by actions taken consequent to the schedule modification could invoke Article II. It would therefore be in the interest of the UK and EU to treat Brexit as though it were subject to Article XXIV:6. In any event, it is arguable that the kind of double imposition of duties that is described above could reasonably qualify as an increase in the bound rate of duty, which is the focus of this provision.

Use of this procedure would lead to application of the �Transparency Mechanism� operated by the Committee on Regional Trade Agreements. One of the important features of the procedure is the early announcement and notification of such agreements.

What the UK (and EU) could offer in these negotiations that would be accepted as compensation for the loss of competitive position described above is likely to be as much a political as an economic issue.

* Article II:1(a) �Each [Member] shall accord to the commerce of the other [Members] treatment no less favourable than that provided for in the appropriate Part of the appropriate Schedule annexed to this Agreement.�

An explicit obligation regarding levels of customs duties is set out in Article II:1(b):

�The products described in Part I of the Schedule relating to any [Member], which are the products of territories of other [Members], shall, on their importation into the territory to which the Schedule relates, and subject to the terms, conditions or qualifications set forth in that Schedule, be exempt from ordinary customs duties in excess of those set forth and provided therein. ��.

February 2017
The UK government has published a �White Paper� relating to exit from the EU which addresses several aspects of its position regarding the WTO.

Not surprisingly the government intends to establish the UK�s own schedules, although how these could provide �clarity for UK businesses about their access to overseas markets around the world� is not obvious. They will replicate �as far as possible our current position as an EU Member State�, which can be taken to mean that for goods the duty rates of the present EU Schedule will be adopted. None of the issues raised in the August 2016 note (below) is addressed.

What does attract particular attention in the White Paper are dispute resolution mechanisms in international agreements. A number of examples are described in an Annex, notably those in the EU � Canada Agreement (CETA). Actually, the main dispute resolution system in CETA mirrors that of the WTO, which the Paper treats more briefly and rather carelessly (it wrongly suggests that panel reports can be rejected by majority of the DSB, and that they have sometimes been rejected). The nationality of judges on the CETA arbitration panel is explained, but no mention is made of the fact that WTO panels never include nationals of the disputants, and that the chances of the non-EU/EEA national being appointed to, what is in effect, the �European� seat on the Appellate Body are small. A short account of NAFTA mechanisms is given, and reference is made to the Chapter 19 on anti-dumping and countervailing duties, but without mentioning the notable role that binational panels play as substitutes for a respondent state�s own courts in applying the law of the state regarding its imposition of duties.

January 2017
New update for International Trade Regulation (Issue 41) in printed and electronic form. Here are a number of the points that are covered.

The panel in China � Intellectual Property Rights appeared to support the notion that a panel may consider evidence that supports an argument only if it is put forward by the party making the argument. The notion has fortunately not found favour, and was disregarded by the recent panel in India � Solar Cells, which found nothing remarkable in itself identifying evidence that supported a party�s contention. Arguably the probative value evidence might vary according to the party that presents it � evidence against a party�s interest � might be regarded as more probative if it has been presented by that party.

The related question of how far a panel can go itself in obtaining evidence did not arise in this case. In China � Intellectual Property Rights the panel said that it was not obliged to trawl for evidence. That observation seems uncontroversial, but borderline problems are likely to arise regarding evidence produced when a panel makes use of experts.

In India � Solar Cells the Appellate Body reaffirmed the rule that the like products criterion in GATT Article III is a dependent on physical characteristics, and that inputs and processes may inform but not displace the competitive relationship standard arising from those characteristics. In the same case it also elaborated a list of characteristics of what should qualify as �laws and regulations� in GATT Article XX(d) � the general exception from GATT obligations that allows measures to secure compliance with �laws and regulations� such as those relating to enforcement of IPR rights. In this context the Appellate Body emphasised the structural similarity between Article XX(d) and Article XX(j), which creates an exception for products in �general or local short supply�. On the substance of this exception it clarified one point in particular: the determination of �short supply� cannot be limited to sources in the territory of the Member concerned.

In US � Washing Machines, which concerned US trade defence action against Korea exports, the Appellate Body elaborated on the notion, in GATT Article VI:3, of subsidies given �on the manufacture, production or export� of a product, and on that in Article 2.2 of the SCM Agreement of �enterprises� (an element of the requirement of specificity). It also had things to say about regional subsidies. In the context of dumping margins, the Appellate Body�s considered �zeroing� (see the December 2016 note), and what was meant by a �pattern of export prices� when identifying targeting.

The Appellate Body also considering anti-dumping measures in EU � Biodiesel, where it confirmed the view of the panel that the reference to �records � [that] reasonably reflect the costs associated with the production and sale of the product under consideration� in Article of the Anti-Dumping Agreement did not justify disregarding those records if the costs were alleged to reflect some distorting factor. However, it avoided ruling on whether the phrase �costs shall normally be calculated on the basis of records kept� implied that there might be other grounds for disregarding the records than those mentioned in this provision.

December 2016
Despite determined resistance by the US, the Appellate Body�s attempts to stamp out every instance of the practice of �zeroing� in the calculation of dumping margins appear to be achieving their goal. Another application arose in US � Washing Machines which addressed the special price-comparison rule permitted by the Anti-Dumping Agreement in cases of targeted dumping. When it was introduced this rule was seen by some as giving a limited opportunity for zeroing, but this possibility has now been denied by the Appellate Body, albeit by a majority of 2:1.

In a further round of the Boeing / Airbus dispute (US � Tax Incentives) a panel has found that the measures applied by Washington State constitute de facto, but not de jure, export subsidies and recommended their withdrawal. The US is taking the matter to the Appellate Body.

December 2016
The Court of Justice has upheld the General Court�s rejection of a claim against anti-dumping duties imposed on Fatty alcohols and their blends from India, Indonesia and Malaysia. In Case C-468/15�P, PT Musim Mas v Council, judgment of 26 Oct. 2016, EU:C:2016:803, the Court addressed the notion of �single economic entity� (SEE), which is important in the context of price comparison. Referring to the situation where a distributor sells products of a producer it ruled that to the extent that the distributor sells products of other producers, and that the producer sells products directly, i.e. without using the distributor, the two are less likely to be regarded as a SEE.
November 2016
The Commission has renewed its attempt to amend the basic regulations. The proposed measure - COM(2016) 721 final � contains �a new method for calculating dumping on imports from countries where there are significant market distortions, or where the state has a pervasive influence on the economy�.

The aim is to have the same rules for all exporting countries that are WTO members, and confine the use of data from market-economy �analogue� countries to exporters in non-WTO members.

Regarding calculation of the normal value the amendments focus on the concept of �significant distortions� which make it �not appropriate to use domestic prices and costs in the exporting country�.

Such significant distortions may be deemed to �exist, inter alia, when reported prices or costs, including the costs of raw materials, are not the result of free market forces as they are affected by government intervention.� The proposal includes illustrations of the factors (related to state activity) whose impact may be considered in this contact.

When such distortion is established the normal value is to �be constructed on the bases of costs of production and sale reflecting undistorted prices or benchmarks�. The sources to be used include �undistorted international prices, costs, or benchmarks, or corresponding costs of production and sale in an appropriate representative country with a similar level of economic development as the exporting country, provided the relevant cost data are readily available�.

Although the matter is not addressed in the proposal it may be assumed that the same principle would be applied when calculating costs for the purposes of determining that sales had been made at a loss and were therefore not �in the ordinary course of trade� � a conclusion that is the usual justification for resorting to a constructed normal value. However, it may be that where �significant distortions� are present the Commission might prefer instead to find that there was �a particular market situation�, a concept that provides an alternative ground for resorting to a constructed normal value. The Commission has until now made little use of this possibility.

The Commission will issue reports describing the situation in particular countries or sectors as regards the criteria relevant to the issue of distortion, and these may be used in complaints and investigations. The evidence and conclusions in such reports will be open to challenge by interested parties during investigations.

The transition provisions are designed not to change the methodology on existing measures.

�The Commission has also proposed a strengthening of the EU anti-subsidy legislation so that in future cases, any new subsidies revealed in the course of an investigation can also be investigated and included in the final duties imposed.�

Commission Press Release 9 Nov 2016

November 2016
New update (Issue 90) for EU Anti-Dumping and Trade Defence Law and Practice, in printed and electronic form.

At the time of writing some of the General Court rulings that are cited in the update could yet be the subject of appeals, viz., Case T-351/13, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, judgment of 18 Oct. 2016, EU:T:2016:616; Case T-111/14, Unitec Bio v Council, judgment of 16 Sept. 2016, EU:T:2016:505; and Cases T-112/14, T-113/14, T-114/14, T-115/14, T-116/14, T-119/14, Molinos R�o de la Plata v Council, judgment of 16 Sept. 2016, EU:T:2016:509. The last two of these judgments are among several that addressed the same issues that arose from the EU's measure on biodiesel from Argentina and Thailand. Other judgments that are already subject to appeal are noted (as 'pending') in the text. Click here for the list of all such actions.

A first in the world of EU anti-dumping: the EU imposes duties retroactively. EU rules (as permitted by the WTO AD agreement) have for long allowed the possibility of retroactively imposing anti-dumping duties for up to 90 days prior to the imposition of provisional measures. Under EU procedures this requires that the imports should have been registered. In the case of cold-rolled flat steel products from China the investigation was initiated in May 2015. In December, at the request of the complainants, imports were made subject to registration. Provisional measures were imposed in February 2016. The duties were imposed retroactively to the date of registration (which was less than 90 days before the provisional measures). Steel products from China have recently been the target of a series of anti-dumping investigations.

In an interesting instance of judicial competition the WTO dispute procedures were recently revealed to be more expeditious than those of the EU. The EU imposed anti-dumping duties on biodiesel from Argentina and Indonesia in November 2013. Exporters in those countries launched challenges in the EU's General Court in February 2014, and judgments were given on 16 September 2016. Argentina launched its WTO action in December 2013, but because of the deliberate delays built into the system did not get a panel fully underway until June 2014. However, matters then speeded up and the panel report (equivalent to the General Court judgment) came in 29 March 2016. The matter then went to the Appellate Body, which reported on 6 October 2016. An appeal from the General Court, if there is one, could take 18 months.

August 2016
New update for International Trade Regulation (Issue 40) in printed and electronic form.

Only two WTO disputes reached a conclusion during this period, both having gone through the full process of panel and appeal. Both were brought by Panama against other Latin American countries, and so added to the small number of panel cases that are argued and reported in Spanish. The first case (Argentina � Financial Services) was also untypical in that it concerned GATS. The Appellate Body reversed many of the panel�s conclusions, giving interpretations of a number of GATS concepts, such as the notions of �like� services and service suppliers, and of �treatment no less favourable�. Its adoption of a common approach to the notion of �necessary� in GATT and GATS exception clauses is to be welcomed. The case was principally concerned with Annex on Financial Services, commonly known as the �prudential carve-out�. In the second case (Colombia � Textiles) the Appellate Body also addressed the notion of �necessary� in exception clauses, giving yet another twist to its already complex analysis of the topic.

The future: Acceptances of the Agreement on Trade Facilitation, which aims to harmonize and simplify many aspects of customs law and practice, are nearing the level at which the Agreement will come into force. At that point its provisions will be included in International Trade Regulation.

The implications for the WTO of Brexit, the UK vote to leave the EU, will remain uncertain as long as the form of that departure is undefined. Assuming that the UK leaves the customs union and adopts its own customs tariff, complicated questions will arise concerning its GATT Schedule. Following the breakup of Czechoslovakia (a GATT member) in 1993 both the Czech and Slovak Republics acceded to GATT. Both countries� Schedules took on the previous bindings, but since they immediately formed a customs union the effect of the split on other members was minimal. When Bangladesh broke away from Pakistan in 1972 it was allowed become a GATT member with a Schedule identical to that which had applied to it as part of Pakistan. That Schedule, however, covered only 13 pages. The EU GATT Schedule is incomparably longer and more complicated. In particular, it contains tariff quotas, and commitments on levels of domestic support for agricultural products, that are defined for the whole EU. The UK would have to present a GATT Schedule which took on a share of these (assuming that it did not radically liberalize these matters). The allocation would likely be controversial, and certification of the proposed Schedule might be long delayed, although such delays are not unprecedented. (One odd carryover from the existing Schedule would be that the UK�s bindings in the form of specific duties would remain denominated in Euros.) In the meantime if other Members were dissatisfied with the UK�s tariff regime they might be moved to invoke dispute settlement, even relying on non-violation nullification or impairment. (Of course, similar issues could also arise for what remains of the EU.) Adoption of a separate GATS Schedule should present fewer problems since the commitments are defined for individual EU member States rather than the Union as a whole. A similar situation exists under the Government Procurement Agreement, to which the EU, but none of its member States, is a party. One other area where the UK would, at least temporarily, face problems would be trade defence, since existing anti-dumping and countervailing duties would be based on EU-wide assessments, and so would provide no authority for their application to the UK alone.

July 2016
New update for EU Anti-Dumping and Trade Defence Law and Practice (Issue 89), in printed and electronic form.

New consolidated versions of the basic EU anti-dumping and anti-subsidy regulations have required extensive changes in this update. Although nothing of substance has changed there are many minor alterations to wording and punctuation.

In the ArcelorMittal case (C-186/14 P) the Court of Justice has upheld the General Court�s annulment of the duties imposed on Chinese seamless steel tubes. The action was one of the very few that have been based on threat of injury, and the Court found manifest error of assessment in the Commission�s conclusion regarding the vulnerable situation of the domestic industry.

The practice of EU courts invoking rulings of WTO dispute bodies was reinforced by the General Court in the Marquis Energy case (T-277/13), which applied the rulings of the Appellate Body in Fasteners (see below) regarding the right to have an anti-dumping duty determined for individual companies. This case also addressed a significant aspect of EU procedural law - the notion of �direct and individual concern� in regards to admissibility and Article 263 challenges to anti-dumping measures. The parallel case of Growth Energy (T-276/13) reinforced a tendency already apparent in the General Court to constrain the possibility of challenging procedural errors. Whereas the Court of Justice had seemed to allow the mere possibility that the error could have prejudiced the applicant, the General Court has required that the applicant should positively establish that risk.

Since the last update the General Court has issued three substantive judgments, and the Court of Justice has given reasoned judgments on two appeals and two references.

March 2016
New update for EU Anti-Dumping and Trade Defence Law and Practice (Issue 88), in printed and electronic form.

References from national courts to the Court of Justice under Article 267 of the TFEU seem to be growing in popularity as a way of challenging trade-defence measures. Three out of the seven new judgments reported in the latest Issue are of this type. Such references are available solely to firms that did not have standing to claim directly in the European courts when the original measure was adopted. Importers that are independent of the firms that are exporting to them will usually fall into this category. The claim will then be made in respect of the national implementation of the measure, i.e., the charging of duties on specific imports. Consequently, unlike direct claims (for which there is a two-month limit) the claim can be made a number of years after the adoption of the original measure. Nevertheless, if such a national-level claim is successful the Court of Justice will declare the measure to be invalid, and the consequences are effectively the same as those when a similar result is obtained from a direct challenge.

February 2016
New update for International Trade Regulation (Issue 39) in printed and electronic form.

The rate of litigation in the WTO has continued at the same high level established in recent years. Since the last update the DSB has adopted three Appellate Body reports and five panel reports, and there have been several arbitrators� awards and decisions. Between them they cover well over a thousand pages of text. Here are a few of the points that they covered.

In the compliance phase of the US Tuna dispute the Appellate Body looked further into the differences between the non-discrimination rules in Article 2.1 of the TBT Agreement and in Article III:4 of the GATT. These largely flow from the exception for legitimate objectives, such as human health, which in GATT is found in a special provision (Article XX), whereas in the TBT Agreement they exist in Article 2.1 itself (where they were identified by the Appellate Body). Nevertheless, the Appellate Body decisions on the one provision may shed light on the meaning of the other.

The Fasteners case, like US Tuna reached the Appellate Body as a compliance action. China successfully challenged several features of the measure that the EU had introduced in response to the negative findings made in the first round of the litigation. Although unfortunate for the EU in this particular case, the report confirms the strict view that it takes of the procedural obligations in the Anti-Dumping Agreement. For example, Members can, merely by their conduct, confer �interested� status on private parties. No explicit action in that regard is necessary.

Unusually, in addition to the steady flow of interpretations from the dispute-settlement bodies, this period has seen progress in law making. The Nairobi Ministerial Conference in December 2015 adopted several Decisions of which the most important is one imposing an almost complete prohibition on developed countries using export subsidies for agricultural products. The Conference also adopted a Decision on rules of origin in preferential trade arrangements � the 1994 Agreement on origin rules covers non-preferential trade. However, like that Agreement, the Decision expresses goals rather than obligations.

One further law-making development that should be mentioned is the conclusion of a new protocol to the Agreement on Trade in Civil Aircraft (a plurilateral agreement � i.e. one to which only certain WTO Members are party), which contains a new list of products that are covered by the Agreement.

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