Briefing paper for an inter agency forum

Paragraph 30 simply gives the Secretary of State power to make provision for appeals. The aim of such duties is to protect domestic industry from essentially unfair competition from dumped or subsidised products. One safeguard here is that the Secretary of State must explain to the House of Commons what his reasons for rejection are paragraph 20 3 c.

There is little experience in the UK of dealing with trade remedy investigations.

The problem here is that the economic interest test has to be passed at both the TRA and the Secretary of State stage see paragraphs 17 5 and 20 2 a. Those comments make the following broad points. Outline of the trade remedies regime set out in the Bills The trade remedies regime provisions are split across the two Bills.

As to the kinds of decision that should be appealable, it first has to be remembered that any decision by the TRA or the Secretary of State will be challengeable by judicial review in the Administrative Court.

There is a question as to whether importers charged with a trade remedy duty should be able to challenge the validity of the general measure imposing the duty as well as its application to their case, but the default position, absent any statutory restriction, is that they would be able to.

That seems to me to be consistent with the English constitutional tradition that no tax should be levied without the approval of the House of Commons or, at least, accountability to the House ; It also means that judgments as to the public interest are made by accountable politicians and not by regulators with limited accountability to Parliament.

Schedule 4 of the Customs Bill resembles maps of Africa produced by early 19th century European explorers: For those reasons, it seems to me that the decisions by the TRA as to whether the legal conditions for the imposition of a trade remedy are met should be appealable on the merits.

That seems to me to be problematic. As part of the common commercial policy, the EU has exclusive competence in the area of trade remedies. It seems sensible for those challenges to end up in the same tribunal as that responsible for direct challenges to the general measure imposing duty, to ensure effective case-management and consistent decisions.

It is worth noting that appeals to the courts against trade remedy decisions are likely to be more searching and rigorous than is often the case with appeals to the General Court in the EU system. The EU has traditionally applied the lesser duty rule although, arguably, with less than complete consistency and rigour about how the amount needed to remove injury is calculatedwhile the United States has not.

A robust legal framework therefore needs to be in place well before it starts work. The United Kingdom has therefore not operated a trade remedies regime since Switzerland, for example, does not have any system for imposing countervailing measures and has never taken action in relation to dumping.

It consists of a senior judge, often a High Court judge, sitting where appropriate with lay members with appropriate expertise the Competition Appeal Tribunal has a number of lay members with relevant skills in economics, business, and accounting, who could perhaps be made available. If as I recommend the UT is granted jurisdiction to hear appeals in this area, the question is really whether all such decisions should go to the UT or whether some decisions should go to the UT and some to the Administrative Court.

Those challenges would usually be dealt with by the First-tier Tribunal and then on appeal by the UT although there is existing provision in the existing tribunal rules to transfer the first instance decision in complex cases to the UT. The Secretary of State is also given broad power to refuse to implement a trade remedy if it is against the public interest paragraph 20 2 b.

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Briefing Paper: The Government’s Proposed Legislation for Trade Remedies

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Briefing paper for an inter agency forum
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