Trade Defence Research Articles

Harmonization of the Ukrainian Legislation with the Legislation of the European Union with Regard to Trade Defence

The issue of the necessity of approximation, adaptation or harmonization of the Ukrainian legislation with the EU legislation has been tackled by a number of scholars in Ukraine. A number of normative documents also paid considerable attention to this issue in general. However, there is still an issue of defining the most suitable term which would better purpose bringing legislation into conformity with the requirements of the EU. According to some scholars the notion “harmonization” could better reflect this process. This view is also shared by the author of this article. The article also discusses the importance and the need to pass new draft laws in the field of trade defence in Ukraine, in particular, regarding anti-dumping, countervailing measures and safeguards. Since some of the new articles correspond to similar provisions in the EU directives, this is viewed as an important step to harmonize the Ukrainian legislation with the legislation of the European Union in this sphere.

How to Suspend Trade Defence Remedies Applied in the Eurasian Economic Union: Recent Trends

Brazil has been known as a challenging country for multinational and national enterprises interested in either importing into Brazil or exporting from it. Even though it represents a highly attractive consumer market, the political, economic, administrative and regulatory environment make Brazil a risky business partner. From Trade Policy to Customs procedures, structural and legal changes are shaping the future for international trade as a whole. This article explores, through data collection and its corresponding analysis, progress made towards implementing trade facilitation and liberalization measures as well as those still in need for further attention. Receita Federal, Mercosur, Brazil, liberalization, facilitation, AEO, ATA Carnet, Ex-Tariff, Ruling, Consultation.

Effect of and Compliance with Judgments of the Court of Justice of the European Union: The Case of Trade Defence Measures

When is litigation successful? Using the example of trade defence measures, this article addresses the effect of and compliance with judgments of the Court of Justice of the European Union. Its premise is that if a favourable judgment does not result in an improvement of the legal or economic position of the applicant, there is no incentive to litigate. This reduces accountability for EU institutions, turning the effect of and compliance with judgments into a fundamental question of judicial protection. With that in mind, this article sets out the differences in the effect of annulments and invalidations. It then turns to how this effect translates into compliance obligations, and how the EU institutions have complied with judgments in trade defence cases. Court of Justice of the European Union, litigation, effect of judgments, annulment, invalidation, implementation, measures taken to comply, Article 266 TFEU, trade defence, anti-dumping, anti-subsidy

Customs Valuation: A Bosnian and Herzegovinian Perspective

When is litigation successful? Using the example of trade defence measures, this article addresses the effect of and compliance with judgments of the Court of Justice of the European Union. Its premise is that if a favourable judgment does not result in an improvement of the legal or economic position of the applicant, there is no incentive to litigate. This reduces accountability for EU institutions, turning the effect of and compliance with judgments into a fundamental question of judicial protection. With that in mind, this article sets out the differences in the effect of annulments and invalidations. It then turns to how this effect translates into compliance obligations, and how the EU institutions have complied with judgments in trade defence cases. Court of Justice of the European Union, litigation, effect of judgments, annulment, invalidation, implementation, measures taken to comply, Article 266 TFEU, trade defence, anti-dumping, anti-subsidy

FISCAL REGULATION OF THE UKRAINIAN CONSUMER MARKET

Introduction. In modern conditions it is important to ensure the competitiveness of one's own country by facilitating the development of high-tech, quality national production, with further stimulation of its exports and protection against fraudulent imports. The research of the state and trends of the consumer market is relevant and necessary for determining the directions and levers of the state's influence on its development. Purpose. The objective of this paper is to research the trends of the Ukrainian consumer market, substantiates possible ways of regulating it with the help of fiscal tools from the point of view of modern protectionism and taking into account globalization and integration requirements. Results. The dynamics and structure of consumer expenditures of households as the main end consumers, the share of imports in the consumer market of Ukraine, foreign trade trends are considered. The import dependence of the consumer market and disturbing tendencies for its strengthening have been revealed. The necessity to support and facilitate the development of national production and deterrence of imports has been identified. Conclusions. The expediency of the implementation of the import substitution policy, the use of fiscal instruments for the development of competitive production with the emphasis on the innovative component is substantiated. Anti-dumping, countervailing and special trade defence measures need to be improved and activated to counteract unfair imports.

Complying with Defence Export Controls: a working perspective

The Royal College of Pathologists (RCPA) and then RCPA Quality Assurance Programs Pty Ltd (RCPAQAP), a company independent from but aligned with the RCPA, have been producing proficiency testing programs (PTP) for infectious diseases for 52 years. This involves sending infectious disease material in surveys to over 80 countries worldwide throughout any year. The PTP panels are developed depending on the prevalence of diseases, which requires flexible panel composition and dynamic enrolments. The Defence Trade Controls Act was introduced in 2012 as part of a wider international regulatory counter-proliferation framework. In 2017, the inclusion of inactivated infectious diseases as controlled microorganisms in the Defence Strategic Goods List (DSGL) had the potential to completely disrupt the RCPAQAP business model in the provision of infectious disease PTP. Some strategies for mitigating this risk are discussed in this paper.

Heterodox markets and ‘market distortions’ in the global trading system

ABSTRACT An important context for contemporary trade frictions is the emergence, since the 1990s, of a wide range of new forms of market capitalism, of which China’s hybrid market economy is the most significant. Institutional diversity of this kind is a source of strength and dynamism for the global trading system, but it is also the cause of very serious friction. The General Agreement on Tariffs and Trade/World Trade Organization system has dealt with this problem before, but the existing settlement regarding the legitimate boundaries of institutional diversity is under pressure and needs to be revisited. One concept that has been incorporated into World Trade Organization trade defence law (and elsewhere) to help draw these boundaries is the concept of the ‘market distortion’. The concept can be a useful one, but it has so far been interpreted and applied with an inadequate appreciation of its serious conceptual and practical difficulties. The potential result is a system of trade defences targeted in a discriminatory and even punitive manner against heterodox institutional forms, in ways that may excessively disincentivize institutional experimentation. In response, this paper argues for an approach to the interpretation and application of this concept, which proceeds from an understanding of the institutionally embedded character of markets. This does not take the form of a readily available ‘solution’, but rather a messy and evolving set of legal techniques that, in the best case, can form the legal basis of a practical and justifiable approach to the tensions caused by institutional diversity. A toolkit of legal techniques of this kind clearly cannot take the place of a more foundational political settlement of some sort, but it is a necessary accompaniment to it, if we are to preserve the aspiration towards a genuinely non-discriminatory and rules-based global economic order.

Countertrade Mechanism of Global Arms Trade: Case Study of Indonesia

A strong national defense system serve to maintain the nation's honor such as creating peace, security, and sovereignty and becomes an effective instrument for bargaining position in relations between nations so that it has broad impacts, including impacts on economic aspects. The research approach used is a qualitative approach. This type of research is a systematic review research. Likewise, the defense industry of a country reflects the economic strength of its country, because in carrying out the defense function, the defense industry has a very important role, including in holding the national Main Tool of the Armament System. However, now not all defense equipment can be produced by the domestic defense industry, so some defense equipment must still be held in cooperation with foreign countries. Law No. 16 of 2012 concerning the Defense Industry mandates that procurement of defense equipment from abroad be permitted if it fulfills several requirements, including trade returns, local content, and offset. Counter trade is one of the mechanisms of cooperation that has been carried out by Indonesia. This mechanism allows reciprocal trade between two countries by buying goods from abroad with payment in the form of goods worth the goods imported. So it is important to analyze the potential for economic improvement for Indonesia that is generated by the mechanism of trade defense equipment from abroad, so that in conducting cooperation, Indonesia can benefit both in the short and long term.

Globalization, Revising the Terms of Trade, and the Return of 'History'

For decades, American political leaders, commentators, and scholars have complained about unfair trading practices in the global economy and talked about the need to address the United States’ chronic trade deficits. But when the Trump administration aggressively sought to renegotiate the terms of international trade, the response of the policy establishment was a sort of panic at the disco, combining an almost visceral reaction against Trump’s efforts with a relentless, often simplistic defense of the post-1947 trading system. This Article criticizes both news organizations and expert commentators for this simplistic defense of international trade, but concludes that we will never know whether the Trump team could have achieved a genuine re-evaluation of the global trade regime because the focus has now turned to China. The Article then explores the trade dispute between the Trump Administration and China, first as an economic matter and then as part of a larger geo-political struggle. In this arena, the Trump Administration has succeeded in changing the terms of the debate: there is now less effort by establishment voices to discuss trade with China as purely about business and there is greater acceptance that trade occurs in the midst of geopolitical and ideological competition. “History,” as Francis Fukuyama conceived it, is back – or never went away. While the Trump team initially wanted to put geopolitics aside to force better trade deals, it is precisely awareness of the geopolitics that is forcing serious reassessment of the China-U.S. economic relationship. Long-term changes are likely, changes for which the business community needs to start planning more comprehensively.

Anti-dumping Off the Rails: The European Union’s Practice to Alleged Input Dumping

For several decades the EU has adjusted the normal value of certain goods in anti-dumping investigations upward, consequently increasing the applicable anti-dumping duties, based on assertions of raw material input dumping in the country of export. Typically adjustments are founded on the assessment that raw materials are sold at a lower price in the domestic market as compared to export sales through so called dual pricing schemes. In the case of certain imports from Russia to the EU, adjustments to normal value are usually based on the premise that energy intensive industries in Russia benefit from input dumping of natural gas. Following its accession to the WTO, Russia has challenged the EU´s practice for violating the EU´s WTO obligations. In the review of its trade defence instruments in 2018, the EU reinforced mechanisms to reprimand alleged input-dumping, despite earlier findings by the WTO dispute settlement body that adjustments for the cost raw material inputs are generally not permitted. In this article it is argued that the EU´s practices are problematic also in relation to cost adjustments based on alleged energy input dumping. Next to the circumstance that WTO rules and jurisprudence do generally not support this practice, the EU´s current approach selectively discriminates against alleged energy input dumping in certain countries, potentially violating not only anti-dumping rules, but also rules of non-discrimination.

EU Public Procurement Policy and the Fourth Industrial Revolution: Pushing and Pulling as One?

Innovation in digital technologies is triggering a variety of regulatory and policy responses by the EU. Fostering innovation is at the core of the EU’s industrial strategy and public procurement is becoming one of its main tools. The EU has reactivated its efforts to promote (digital) innovation procurement and is harnessing procurement market access as a trade defence for its innovation industry. The EU is clearly trying to use its buying power as an innovation pull to increase the readiness of the EU’s economy for the fourth industrial revolution. However, this effort is somehow constrained by the Member States’ diverging approaches and levels of engagement. At the same time, innovative digital technologies hold the promise of a significant impact in the governance and practice of public procurement, and the EU is pushing for digitalisation as a lever to improve public services and to facilitate data analysis experimentation. However, a much-delayed and patchy implementation of eProcurement in most Member States and an inconsistent and timid approach to the regulation of public procurement data stand in the way of a true revolution and can prevent the public sector from leading by example. In this paper, I reflect on the tensions inherent to this dual use of public procurement as an innovation pull through market power and trade leverage, and as a push for the digitalisation of procurement in the EU, as well as on the tensions between EU and Member State responses.

The Consequence of a Permanent Customs Union

A customs union with the EU would come with significant costs to the UK’s economic, trade and foreign policies. Such an arrangement would also fail, by itself, to eliminate trade friction with the EU. To do so would also require alignment with the Single Market rules for goods. A customs union would also come with significant risk to UK consumers who would likely lack effective representation in new EU trade agreements. There would be a high chance that their interests would be subsumed to those of EU producers, and UK producers’ defensive interests would not be represented. Furthermore, if the UK were required to follow the EU’s trade defence policies, UK consumers would be left vulnerable to price rises to protect EU manufacturers, while British manufacturers would not necessarily be defended.

Afterword: Reflections on the Motley Crew as Port City Proletariat

AbstractThis essay reflects on the workers in Atlantic and Indian Ocean port cities who made possible the rapidly expanding system of global capitalism between 1650 and 1850. In all of the ports treated in this volume, a mixture of multi-ethnic, male and female, unskilled, often unwaged laborers collectively served as the linchpins that connected local hinterlands (and seas) to bustling waterfronts, tall ships, and finally the world market. Although the precise combination of workers varied from one port to the next, all had an occupational structure in which half or more of the population worked in trade or the defense of trade, for example in shipbuilding/repair, the hauling of commodities to and from ships, and the building of colonial infrastructure, the docks and roads instrumental to commerce. This “motley crew” – a working combination of enslaved Africans, European/Indian/Chinese indentured servants, sailors, soldiers, convicts, domestic workers, and artisans – were essential to the production and worldwide circulation of commodities and profits.

Trade protection and the role of non-tariff barriers

A growing share of modern trade policy instruments is shaped by non-tariff barriers (NTBs). Based on a structural gravity equation and the recently updated Global Trade Alert database, we empirically investigate the effect of NTBs on imports. Our analysis reveals that the implementation of NTBs reduces imports of affected products by up to 12%. Their trade dampening effect is thus comparable to that of trade defence instruments such as anti-dumping duties. It is smaller for exporters that have a free trade agreement with the importing country. Different types of NTBs affect trade to a different extent. Finally, we investigate the effect of behind-the-border measures, showing that they significantly lower the importer’s market access.

Impacto do Decreto n. 8.058/2013 sobre investigações antidumping no Brasil

Resumo A promulgação do Decreto n. 8.058/2013 alterou os procedimentos relativos às investigações antidumping no Brasil. Um dos objetivos do novo decreto, conforme disposto no Plano Brasil Maior (2011), foi o de intensificar a defesa comercial no país, reduzindo-se os prazos de investigação e de concessão de direitos provisórios. Este artigo (i) apresenta fatos estilizados e a agenda de pesquisa sobre medidas antidumping; (ii) mostra a evolução da legislação sobre medidas de defesa comercial no Brasil de 1994 até 2016; (iii) analisa as principais tendências da defesa comercial no Brasil e no mundo a partir da análise das informações do Departamento de Defesa Comercial (Decom) do Ministério do Desenvolvimento, Indústria e Comércio (MDIC) e do Global Antidumping Database do Banco Mundial; e (iv) discute por meio de testes estatísticos e econométricos os efeitos do Decreto n. 8.058/2013 sobre as investigações antidumping no Brasil. Em particular, argumenta-se que (a) o aumento observado no número de investigações abertas não deve ser atribuído ao Decreto n. 8.058/2013, mas à divulgação do Plano Brasil Maior; (b) a taxa de aprovação de medidas não aumentou em decorrência do decreto; e (c) o tempo de investigação se reduziu, mas continua maior do que a comparação internacional.

Anti-Dumping in Europe: What About Us(ers)?

As Anti-Dumping law in the European Union turned fifty years old, it got a rejuvenating cure: the European Union published in December 2017 and June 2018 two regulations providing a stronger policy tool to protect European producers and workers. This article focuses on users, including both intermediate industries and consumers. First, it recalls the European approach of considering users in trade defence policy, as a moderate user of trade defence tools. Second, it reviews the three ways in which the European Union takes into account users’ interests, and the impact of the June 2018 modernization. Notably, this article looks at the new flexibility of the ‘lesser duty rule’ and at the two new ‘Union interest tests’. It also gives practical insights for users. Third, the article raises some open questions. As the lesser duty rule and the Union interest test evolve, this article argues that users’ interests remain an important feature in Europe’s anti-dumping law.

The CAP Under Attack? Last Developments In Trade Defence Cases Targeting European Food Products

The recent (2003-2013) reforms of the CAP – while bringing it more in line with the applicable WTO legislation – have proved to be insufficient to shield the EU food industry from third countries’ trade defence actions. In particular, two recent investigations carried out by Australia and the United States represent dangerous precedents in the European perspective, since they have targeted for the first time domestic support programs that the European Commission considers to be fully WTO compatible, and that are widely used throughout the Union. The article analyses some of the key features of these investigations and takes note of the elements which are likely to play an important role in future possible actions targeting EU food products.

‘Not Quite There Yet’: The Ongoing Quest for a Deep Procedural Reform of EU Trade Defence Instruments

Despite the key role played by trade defence instruments (TDI) in EU trade policy, EU TDI investigations currently lack a solid procedural framework for the guarantee of the rights of interested parties. While the European Commission has already adopted some steps aimed at improving TDI proceedings, key issues like access to confidential information and full transparency have not been properly addressed yet. In the field of access to confidential documents, new political momentum for a reform could be found only to the extent that complainants are fully convinced of the benefits arising from such system for their cause. With respect to transparency, practical options appear to be available in the short term which could render TDI proceedings more streamlined and fair.

The EU’s Modernization Regulation: Stronger and More Effective Trade Defence Instruments?

This article addresses the changes to the EU’s trade defence instruments that were introduced by Regulation (EU) 2018/825 which entered into force on 8 June 2018. Many of the changes (such as speedier completion of investigations, increased transparency and predictability) are welcome developments. Others, however, such as making the application of the lesser duty rule discretionary in certain circumstances are less welcome. They do not only reduce predictability by expanding the Commission’s discretion but also have the, perhaps inadvertent, consequence that for the foreseeable future, different procedural and substantive rules will apply to new investigations and reviews of old measures.

Class-Action in EU TDI Cases: Applications for Annulment Brought by Associations on Behalf of Their Members

The European Union is a prolific user of trade defence instruments (TDIs). When TDI measures are imposed on their exports, exporting producers often face significant difficulties in obtaining effective judicial protection, which could explain why legal challenges against TDI measures are the exception rather than the rule. There is, however, the potential for a more effective use of actions for annulment of TDI measures. One of the ways in which this potential can be unlocked is through a more active role of associations. In particular, this article will discuss how associations can, under certain circumstances, bring actions on behalf of their members or on their own behalf.