Preparations are continuing to enable the United Kingdom to comply, on Brexit, with obligations imposed by the World Trade Organisation, notably Article 13 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the WTO Anti-Dumping Agreement).1 This note provides an update on progress made so far and offers some practical observations on how the UK new regime2 differs from that adopted by the EU under Regulation 2016/1036.
It is important to note upfront that the new UK regime is not a mere copy-paste of the EU one. One may even consider that the UK regime is somehow reflecting the position the UK Government adopted for many years within the EU. This is particularly the case for the so-called 'public interest' test which was developed by Sir Leon Brittan, European Commissioner for Trade as from 1995. This test seems reinforced in the UK rules by explicitly setting two types of 'public interest' test, one in the hands of the administrative body (TRA) and one in the hands of the political body (Secretary of State). It remains to be seen whether the absence of definition of the scope of the political level 'public interest' test will not lead to situations where the imposition of measures, aiming at restoring a level playing field, becomes too aleatory for UK producers suffering injury from subsidised or dumped imports. In any event, the implementation of the new UK rules should encourage all parties concerned (whether producers, but also exporters, importers or users) to be inspired by EU (and WTO) case law to defend their case before the TRA.
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1Article 13 requires WTO members to maintain independent judicial, arbitral or administrative tribunals or procedures to review administrative actions relating to anti-dumping measures.
2The following statutory instruments came into force on 3 June 2019: the Trade Remedies (Reconsideration and Appeals) (EU Exit) Regulations 2019 (SI 2019/910) (RA Regs), which establish interested parties' right to seek reconsideration of any decision of the TRA and appeal a reconsidered decision to the Upper Tribunal; and, the Tribunal Procedure (Amendment) Rules 2019 (SI 2019/925) which facilitate the Upper Tribunal hearing appeals against decisions of the TRA or the Secretary of State in relation to trade remedies.