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Daniel Moulis sheds light on UK trade remedies post-Brexit

19.03.2018

Moulis Legal founder and principal Daniel Moulis gave evidence to the UK Parliament’s International Trade Committee in London on 14 March 2018 in its inquiry into the design and architecture of the UK’s post-Brexit trade remedies system.

The UK’s future legal regime to deal with anti-dumping, countervailing and safeguard measures is described in two Bills that have been introduced into the House of Commons. The first, the Trade Bill, establishes the proposed Trade Remedies Authority (TRA). The second, the Taxation (Cross-border Trade) Bill, sets out the rules and procedures the TRA will be required to follow in its administration of the trade remedies system.

The inquiry, which was opened on 15 January 2018, responds to concerns as to whether the new body and its procedures would be, in the words of Committee Chair Angus Brendan MacNeil MP, “fit for purpose”:

Developing an independent trade policy is a complex exercise. Not only must the UK seek out new trading relationships, but it must also protect its domestic industries against any unfair trading practices by other countries.

The newly established UK Trade Remedies Authority has been charged with this function. However, my Committee has heard evidence which raises concerns about whether the body will be fit for purpose.

To address these concerns, our inquiry will examine the operational structure and powers of the TRA, as set out in the Trade and Customs Bills. It will also examine the relationship between the TRA and the Secretary of State, to ascertain whether the TRA has the requisite functional independence. There is much for the UK to learn from other bodies in other countries, and I hope the Committee receives wide-ranging, comparative evidence on these important issues.

In an engaging session with the Committee, Mr Moulis first outlined the anti-dumping and countervailing systems in Australia. He noted that there were clear similarities between Australian law and the UK proposals, to the extent that the Australian Customs Act 1901 may have been a reference point in the drafting of the new Bills.

He drew attention to the clearly different trade setting the Bills tried to achieve, as compared to current Australian trade policy. This difference is most clearly evidenced by two tests that would need to be satisfied as a precondition to imposing trade restrictions. The first would be an “economic interest” test, requiring the TRA and the Secretary of State to weigh up the interests of consumers and of competition in UK markets. The second would be an overriding power of the Secretary of State to decide not to impose measures if considered not to be in the “public interest”, for any other reason. In these provisions the UK Government appears to be signalling its preference to maintain an open and liberal trading environment, rather than to install a protectionist-minded one.

Mr Moulis was also asked about the composition of the TRA Board, which would be assembled for the purposes of considering the results of investigations by the TRA’s staff and making recommendations to the Secretary of State. He expressed reservations against the proposal in the Bill that the Board would comprise nine members, and to suggestions from the Committee that members could be chosen because of their direct affiliation with relevant interest groups. He counselled that a small (say, three member) Board would be best, with the members being required to have strong experience in the relevant fields of inquiry and also strong independence in their approach towards decision-making.

He also expressed concern about the many “unformed” aspects of the new system, which the Bills leave to be determined by future regulation. In particular he said that key elements of trade remedies law, such as the non-attribution principle, a public record of evidence and submissions, and the justice that is afforded to interested parties by an independent and well-resourced appeals system, should be considered for inclusion in the legislation right now rather than being left for later.

The next step in the deliberations of the UK Parliament will be the publication of the Committee report, the timing for which has not yet been announced.

Mr Moulis wishes to thank the Committee Chair, Members and staff for the invitation to appear before the Committee, which was an honour and a privilege for him and for Moulis Legal.