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This article is an extract from The International Trade Law Review – Edition 7. Click here to view the full guide.
The United Kingdom (UK) is a major trading power. By way of illustration, in 2019 it imported £724 billion and exported £699 billion of goods and services.2 However, being a Member State of the European Union (EU) and its predecessors between 1 January 1973 and 31 January 2020, and being in a transition period under the terms of the UK–EU Withdrawal Agreement from 31 January 2020 until 31 December 2020, it was not able to implement an independent trade policy. One of the objectives of the UK’s withdrawal from the EU was to be able to do so.
This chapter reviews some key aspects of the new international and domestic frameworks for UK trade that came into operation at the end of the transition period. On the international front, the chapter reviews UK membership of the World Trade Organization (WTO), the UK’s new trading arrangements with the EU and the UK’s replacement free trade agreements (FTAs) that seek to maintain the benefits of EU FTAs with various countries around the world, and notes new FTAs being negotiated. On the domestic front, the chapter reviews regimes for import duties and for imposing anti-dumping and countervailing duties.
II Key aspects of the new treaty framework for UK trade
i World Trade Organization
The UK government says that it strongly supports a multilateral, rules-based order for international trade law. The UK is an original member of the WTO and has been responsible for its own representation in the organisation since it withdrew from the EU on 31 January 2020. It continues to be bound by, and benefit from, the provisions of the WTO multilateral treaties as they stood on 1 January 1995 as well as the plurilateral Agreement on Trade in Civil Aircraft. It has arranged for its continued participation in a number of subsequent agreements to which it had been bound solely by its former EU membership, perhaps most importantly the plurilateral Government Procurement Agreement as revised.3
In preparation for pursuing an independent trade policy, the UK submitted draft schedules setting out its commitments under the General Agreement on Tariffs and Trade and the General Agreement on Trade in Services on 24 July 2018. These were based on the EU schedules by which the UK was bound. At the time of writing, the new schedules have not been certified: negotiations continue with certain WTO Members, primarily concerning how the UK and the EU should divide between them the EU’s tariff rate quotas (TRQs) as they stood during UK membership of the EU (within the WTO context, TRQs provide for lower tariffs for limited quantities of imports, normally agricultural and fishery goods). The outcome of these negotiations and consultations will only have prospective effect.
ii The UK–EU Trade and Cooperation Agreement
The UK–EU Trade and Cooperation Agreement (TCA) is the new governing framework for trade between the UK and the EU. It provides for continued tariff-free quota-free trade in goods between the parties, although this now depends upon goods meeting the relevant rules of origin and having the appropriate paperwork; one study calculated that the preference utilisation rate for British exports to the EU in the first quarter of 2021 was 73 per cent.4 In terms of other trade barriers, despite the UK and the EU having highly aligned regulatory frameworks and a history of close regulatory cooperation, the TCA does comparatively little to address technical barriers to trade or sanitary and phytosanitary measures (although it does set up an institutional architecture within which such matters may be discussed). The full impact of transitioning to the TCA has yet to be felt, however, as the UK has been taking a staged approach to enforcing various requirements including sanitary and phytosanitary border checks and UK conformity assessment markings.
Significantly, the TCA operates subject to the Withdrawal Agreement, which means that trade involving Northern Ireland is treated differently. Northern Ireland is, in effect, within the EU single market and customs union for most purposes. Negotiations continue at the time of writing between the UK and the EU over precisely what measures are necessary and appropriate for controlling the movement of goods from Great Britain to Northern Ireland such that the integrity of both the UK and the EU is maintained.
iii Replacement FTAs
The UK no longer benefits from, or is subject to, EU FTAs. At the time of writing, there are 35 replacement FTAs, covering 67 states and territories.5 Most of these new FTAs incorporate or restate the provisions of the EU FTAs that they replace, with largely technical modifications, so that businesses may generally continue trading between the UK and the covered states and territories on the same basis as before.6 Two types of modifications are particularly worth highlighting.
Tariff rate quotas
Within an FTA context, TRQs cap the volume of certain goods (normally agricultural and fishery goods) eligible for preferential treatment. These volumes have been renegotiated and are inevitably smaller than the EU volumes, although the precise basis for the renegotiated figures has not been made clear.
Rules of origin
Rules of origin are the criteria under which goods qualify as originating in a party to an FTA and therefore for preferential tariff treatment by the other party.
The requirement in replacement FTAs that UK exports originate in the UK to qualify for preferential treatment is much narrower than the requirement under the original EU FTAs that UK exports originated in the EU (including the UK) to receive this treatment.
However, the UK has successfully negotiated extended cumulation with its counterparts. Extended cumulation means that most businesses exporting goods with EU content from the UK to partner countries will not have lost preferential treatment. Because the EU has not negotiated similar extended cumulation with these partner countries – it objects to diagonal cumulation with the UK even under the Regional Convention on pan-Euro-Mediterranean preferential rules of origin (the PEM Convention) – in some situations identical goods could receive different treatment depending on whether final processing and export occurred in the UK (in which case they would receive preferential treatment) or the EU (in which case they would not).
The extended cumulation negotiated by the UK generally has the following three elements:
- Cumulation of materials with the EU. Materials originating in the EU that are incorporated into a UK product will be considered as originating in the UK, provided that UK processing goes beyond insufficient processing (certain simple operations that cannot confer origin). Similarly, materials originating in the EU that are incorporated into a product in the counterparty will be considered as originating in that country, provided that the processing in that country goes beyond insufficient processing.
- Cumulation of production with the EU. Working or processing of materials in the EU will be considered as having occurred in the UK provided that there is subsequent UK processing that goes beyond insufficient processing. Similarly, working or processing of materials in the EU will be considered as having occurred in the counterparty provided that there is subsequent processing in that country that goes beyond insufficient processing.
- Continuation of any pre-existing third-party cumulation, of which there are two particularly important examples. Where counterparties to the new FTAs are parties to the PEM Convention cumulation for the most part will be permitted under the same terms as set out in the PEM Convention, even though the UK is not a party to the PEM Convention. The new FTAs for which the counterparties are party to the Cotonou Agreement (the African, Caribbean and Pacific Group of States) contain provisions that will continue to provide for cumulation with certain other (normally developing) states.
Extended cumulation in respect of the EU is limited to three years under the FTAs with Canada, Mexico, the Southern African Customs Union and Mozambique, South Korea and Switzerland. In each case, the parties will review the relevant provisions before they expire.
iv Future FTAs
The UK has an ambitious agenda for extending its network of FTAs. On 14 June 2021, the UK announced its first FTA not negotiated against the backdrop of a prior EU FTA, with Australia. The UK is also currently negotiating FTAs with New Zealand (with talks said to be at an advanced stage) and the United States, as well as preparing to negotiate its accession to the Comprehensive and Progressive Trans-Pacific Partnership. It is also looking to ‘upgrade’ certain replacement FTAs in upcoming negotiations, most notably those with Canada and Mexico.
III Key aspects of the new domestic legal framework for UK trade
i Import duties
The primary legislation governing import duties is the Taxation (Cross-border Trade) Act 2018 (the Taxation Act). Separate rules apply for imports into Northern Ireland as a result of the Northern Ireland Protocol of the EU Withdrawal Agreement; these are not covered in this chapter.
Chargeable goods (i.e., all goods other than ‘domestic goods’) that are imported will normally need to be ‘presented’ to Her Majesty’s Revenue and Customs (HMRC) by way of notification within three hours of their arrival.9 If the chargeable goods have not already been declared for a Customs procedure, this must be done within 90 days of their presentation; a temporary storage declaration must be made in respect of the goods for the period up until they are declared for a Customs procedure.10 A Customs declaration will be either for the free-circulation procedure11 (which involves the payment of import duty and converts chargeable goods into domestic goods that may freely circulate within Great Britain) or for a special Customs procedure,12 of which there are five.
- The storage procedure allows goods to be stored in premises approved by HMRC or in a free zone without incurring liability to import duty, subject to conditions.13
- The transit procedure allows goods to be moved from one place to another within Great Britain without incurring liability to import duty, subject to conditions.14
- The inward processing procedure allows goods to undergo qualified processing in Great Britain without incurring liability to import duty, subject to conditions. The processing must take place within a specified, though extendable, period. Qualified processing of goods includes repair, incorporation into other goods, working using production accessories and destruction. The procedure may also be used to subject goods to any operation designed to ensure compliance with regulatory requirements that must be met before they may be released for free circulation, and for operations designed to preserve them, improve their appearance and marketability, or otherwise prepare them for distribution or resale.15
- The authorised use procedure and the temporary admission procedure provide for reduced (potentially nil) duty rates, provided that the goods are used for a specific use (authorised use procedure) or for a limited period before being exported or removed to Northern Ireland (temporary admission procedure).16
A declaration may be made by any person established in the UK who is able to present the goods in question or to secure their presentation (for example, the person who has arranged importation or his or her Customs agent).17
Liability to import duty is formally incurred when HMRC accepts a declaration for the free-circulation procedure, the authorised use procedure or the temporary admission procedure.18 The general rule is that the liability will be incurred by the person in whose name the declaration is made. Certain other persons, such as any other person on whose behalf the declaration has been made or an undisclosed or unauthorised direct Customs agent, can be liable as well; if multiple persons are liable, liability will be joint and several.19
The amount of the import duty in ‘a standard case’ is set out in a document entitled ‘Tariff of the United Kingdom’, the current version of which is made effective through the Customs Tariff (Establishment) (EU Exit) Regulations 2020.20 The new UK Global Tariff differs from the EU Common External Tariff that used to apply in respect of imports into the UK in several important respects. Its overall effect is to simplify and liberalise UK most-favoured-nation duties, as follows.21
- Import duties have been eliminated for a wide range of goods, including (1) goods previously subject to duties of less than 2 per cent (nuisance duties), (2) goods not produced (or produced in minimal quantities) in the UK, (3) certain ‘key inputs to production’ and (4) certain ‘green’ goods. As a result, the number of products that are not charged import duty has increased from 27 per cent to 47 per cent.
- Each remaining ad valorem duty was rounded down to the nearest tariff band. The bands were set at increments of two percentage points from 2 per cent to 20 per cent, five percentage points from 20 per cent to 50 per cent and 10 percentage points from 50 per cent to 70 per cent.
- Specific duties (including specific components of compound duties) are denominated in pounds sterling rather than euros (the conversion rate used was the average exchange rate for the past five years).
- Agricultural duties have been simplified, as follows:
- most threshold duties (ad valorem duties subject to a minimum or maximum rate of specific duty) have been replaced with a simple ad valorem duty;
- the number of products subject to seasonal duties has been reduced; and the number of seasonal duties has been reduced for some products that have retained those duties;
- the Entry Price System and variable import duty (which varied duties for fresh fruit and vegetables and for cereals, respectively, based on price) have been removed; and
- the Meursing table, which set additional duties for ‘composite agrigoods’ based on the combination of their percentage mass of each of milk fat, milk protein, and starch, glucose and sucrose, isoglucose and invert sugar, has been removed.
- An autonomous tariff rata quota of zero per cent for 260,000 tonnes of raw cane sugar has been introduced.
Import duty may be adjusted from the standard case under certain circumstances:
- the import is covered by an FTA or a trade preference scheme for eligible developing countries;
- duties have been temporarily suspended (there is a scheme for UK firms to apply for such suspensions);
- anti-dumping or countervailing duties or safeguards or special agricultural safeguards have been imposed; or
- the UK is acting in response to an international trade dispute.22
Her Majesty’s Treasury may also provide for general reliefs.23
The UK has maintained trade preference schemes for developing countries equivalent to those operated by the EU.24 The retention of some of the higher import duties in the UK Global Tariff has been motivated by a desire to maintain a substantial margin of preference for developing countries under its trade preference schemes.25
ii Imposition of anti-dumping and countervailing duties
The Trade Act 2021 established the Trade Remedies Authority (TRA), a technocratic body responsible for conducting anti-dumping and countervailing duty investigations as set out under the Taxation Act and subordinate legislation. The TRA makes recommendations to the Secretary of State for International Trade (the Secretary of State) as to final remedies. In general, the Secretary of State may only reject the recommendations for political (rather than economic) reasons (see ‘TRA recommendations and the role of the Secretary of State’ below). This approach is intended to maximise transparency.
Initiation of investigations
Applications for the initiation of an investigation may be made by or on behalf of UK industry.26 To be ‘by or on behalf of UK industry’, the application must meet two criteria: it must be supported by UK producers whose collective output is at least 25 per cent of the UK production of the like goods and it must not be opposed by UK producers with collective output of 25 per cent or greater.27 This is marginally stricter than the rules set out in the WTO Anti-Dumping Agreement (ADA) and Subsidies and Countervailing Measures Agreement (SCMA), under both of which an investigation may proceed with domestic opposition greater than 25 per cent of domestic production provided that domestic opposition does not exceed the domestic support for the investigation.28 In addition, UK industry must have at least 1 per cent UK market share in the relevant product. This restriction is an unusual feature of the UK regime, although there is provision for the TRA to waive it or apply a higher threshold if it considers it appropriate.29
The TRA must initiate a dumping or subsidisation investigation if it is satisfied that the application contains sufficient evidence of dumping or subsidisation causing injury to UK industry and it appears from the evidence that the following criteria are met:30
- the volume of dumped or subsidised goods (actual or potential) is more than ‘negligible’:
- the volume of dumped goods will be negligible when the exporting country or territory accounts for less than 3 per cent of imports of the like goods into the UK or 7 per cent of imports of the like goods when considered alongside dumped like goods from other exporting countries or territories (these are the same as the ADA thresholds);31 and
- the volume of subsidised goods will be considered negligible on the same basis as for dumped goods except that higher thresholds of 4 per cent and 9 per cent will apply in respect of developing countries and territories32 – specific thresholds for determining a negligible volume of subsidised goods are not a requirement under the SCMA and should provide greater legal certainty to those involved in the UK regime;
- the injury is more than negligible; and
- the dumping margin or subsidy amount is more than ‘minimal’:
- the dumping margin will be minimal if it is less than 2 per cent of the export price (this is the same as the ADA threshold);33 and
- the subsidy amount will be minimal if it is less than 1 per cent of the value, or 2 per cent in respect of developing countries and territories. The SCMA provides for a minimal level of 1 per cent for both developed and developing countries and territories.34
However, a subsidisation investigation may not commence before the TRA has invited the relevant foreign countries or territories to participate in consultations.35
Other actions the TRA must take when initiating an investigation include publishing notice of its decision to commence the investigation, notifying the Secretary of State and interested parties, and notifying the relevant governments (in the case of subsidisation investigations the TRA must invite the governments to consultations).36 The full text of the application must be sent to the relevant government and, if practicable, the overseas exporters known to the TRA.37
Conduct of investigations
The TRA must set a registration period during which interested parties and any other persons may make themselves known to the TRA. It must issue questionnaires, to the extent practicable, to all interested parties and those who have made themselves known, as well as to all UK producers, importers and overseas exporters (or associations thereof) identified in the UK industry application. In certain circumstances, it can issue questionnaires to a sample of interested parties. The TRA also has the discretion to issue questionnaires to interested parties who make themselves known after the end of the registration period but before the publication of the statement of essential facts (see below). It may undertake verification visits within the UK and abroad, and hold hearings either of its own motion or at the request of any interested party.38
One important feature of the new UK dumping investigations is the way that the concept of a ‘particular market situation’ has been developed for the purposes of determining normal value. The TRA is not permitted to use the ‘comparable price’ (the price of like goods destined for consumption in the exporting country or territory) if the particular market situation does not permit a proper comparison with the export price. The regulations state that such a situation includes when ‘prices are artificially low’, ‘there is significant barter trade’ or ‘prices reflect non-commercial factors’.39 This suggests that the normal price for products exported from countries and territories characterised by extensive industrial intervention by the state, most prominently (but by no means exclusively) China, will often be ascertained on the basis of a more burdensome alternative methodology.
During its investigation, the TRA may make a provisional determination that dumped or subsidised goods have caused, or are causing, injury to UK industry in those goods, provided that it is satisfied that interested parties have had adequate opportunity to provide information.40 The TRA must conclude its investigation with a final determination as to whether dumped or subsidised goods have caused, or are causing, injury to UK industry in those goods. Before doing so, however, it must publish a statement of essential facts to allow interested parties to understand the basis for its intended decision and specify a period within which those who have supplied information may comment.41
TRA recommendations and the role of the Secretary of State
Following a definitive or provisional determination, and provided that the economic interest test has been met (see below), the TRA must normally make a recommendation to the Secretary of State as to remedies. Recommended definitive remedies take the form of additional import duty calculated on the ‘lesser duty’ basis – the lesser of the margin of dumping or amount of subsidy and the amount the TRA is satisfied would be adequate to remove the injury from UK industry – although, under certain circumstances, the TRA can recommend acceptance of undertakings from exporters or the foreign government in question as an alternative. Recommended provisional remedies take the form of guarantees from importers of the goods in respect of possible additional import duty.42
The economic interest test has been met if the TRA is satisfied that the application of the remedy will be in the economic interest of the UK. Factors that the TRA must consider include:
- the injury caused by the dumped or subsidised goods; the economic significance of the affected industries and consumers in the UK; the likely impact on affected industries and consumers in the UK;
- the likely impact on particular geographical areas and groups in the UK; and
- the likely consequences for the competitive environment and the structure of markets for goods in the UK.
There is a statutory presumption that the economic interest test is met.43
Once the TRA has made a recommendation to impose definitive or provisional remedies, the Secretary of State must decide whether to accept or reject it. He or she may only reject it if satisfied that it is not in the public interest so to do. In considering whether it is in the public interest, the Secretary of State must accept the TRA’s determination that the remedy will be in the economic interest of the UK, unless he or she is satisfied that the determination is not one that the TRA could reasonably have made. The reasons for any rejection must be set out in a statement laid before the House of Commons.44
Most determinations and recommendations made by the TRA can be challenged by any interested party within one month of the day after the relevant notice was published or comes into effect or, for decisions that are not published in a notice, the day after the applicant was notified about the decision. The decision will be reconsidered on the merits by the TRA. The TRA may request further information from any person, refer disputes on points of law to the Upper Tribunal (Tax and Chancery Chamber) (the Upper Tribunal) and conduct a hearing.45
Most reconsidered decisions may be appealed to the Upper Tribunal by any interested party, as may determinations made by the Secretary of State. The Upper Tribunal must apply the same principles that a court would apply in a judicial review.46
Rolling over existing EU measures
Following industry consultations, the UK decided to temporarily maintain 44 of the 107 EU trade defence measures that previously applied in the UK by virtue of its EU membership. The TRA has initiated ‘transition reviews’ in respect of some of these measures to determine whether they should be retained, and will gradually review the remainder over time.