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International trade barriers: The national security clause

Despite the solidmovement made under the World trade organization negotiations to set up a free international trade, every country in the world has establishedcertain barriers to trade. Indeed , the World Trade organization law has enabled Members to take necessary trade restrictions to protect public morals, human, animal or plant life or health, and other restrictions on international trade of goods based on article XX of the General Agreement on Tariffs and Trade 1994 but with the cornerstone precaution that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.

Besides, Article II of the General Agreement on Tariffs and Trade 1994 did not prevent WTO Members from imposing at any time on the importation of any product any antidumping or countervailing duty applied consistently with the provisions of Article VI of the of the General Agreement on Tariffs and Trade 1994.

Furthermore, WTO Members can under Article XIX of the General Agreement on Tariffs and Trade 1994 and consistently with the substantive and procedural conditions highlighted in the Agreement of safeguard impose safeguard measures to the extent and for such time as may be necessary to prevent or remedy serious injury to the domestic industry producing like or directly competitive product.

However, the practice of the WTO Members have shown that the slowdown of the economy has usually produced a new series of protectionist measures with the view to limit the quantity and presence of the imported product in the importing countries without seriously considering their obligations under the WTO pre-established rules and conditions.

Currently, the United States made use of section 232 of the Trade Expansion Act of 1962. The purpose of the national security investigation is to determine the effect of imports on the national security. Investigations may be initiated based on an application from an interested party, a request from the head of any department or agency, or may be self-initiated by the Secretary of Commerce.The Secretary’s report to the President, prepared within 270 days of initiation, focuses on whether the importation of the article in question is in such quantities or under such circumstances as to threaten to impair the national security. The President can concur or not with the Secretary’s recommendations, and take action to “adjust the imports of an article and its derivatives” or other non-trade related actions as deemed necessary.

On 8th March 2018 the US president issued two proclamations on Adjusting Imports of Steel into the United Statesby imposing a 25 percent ad valorem tariff on steel from all countries except Canada and Mexico.  This relief was judged necessary by the US Administration to help US domestic steel industry to revive idled facilities, open closed mills, preserve necessary skills by hiring new steel workers, and maintain or increase production, which will reduce the US’s need to rely on foreign producers for steel and ensure that domestic producers can continue to supply all the steel necessary for critical industries and national defense.  In parallel, the second proclamation concerns the Adjustment of Imports of Aluminum into the United Statesby imposing a 10 percent ad valorem tariff on aluminum articles imported from all countries except Canada and Mexico.

The US proclamations received mixed reaction from stakeholders with some seeing it as a step that would revive the manufacturing sector while others warned it would lead to a trade war. Various affected WTO Members are currently discussing a country exclusion from the steel and aluminum duties.

The UAE is among the countries, which are concerned by specifically the proclamation on the Adjustment of Imports of Aluminum as it is among the largest export of aluminum to the US market.

Countervailing measures to counter certain subsides

The Agreement on Subsidy and Countervailing Measures provides that certain subsidies are to be regarded as legitimate depending on their purpose. In other words, subsidy is not ex officio illegitimate under the international trade law.

Where a subsidy is explicitly limited to certain enterprises, industries or regions, either by the granting authority, or by legislation, it is de jure specific.  On the other hand, where the authority, or legislation, establish objective criteria or conditions governing the eligibility for, and amount of, a subsidy, specificity shall not exist, provided that the eligibility is automatic and the criteria and conditions are strictly adhered to. Footnote 2 of the Agreement on Subsidy and Countervailing Measures clarifies that objective criteria or conditions are criteria or conditions which are neutral, which do not favour certain enterprises over others, and which are economic in nature and horizontal in application.  It is relatively easy to establish such de jure specificity or nonspecificity.

It is quite possible that a subsidy at face value is non-specific, but in fact is operated in a specific manner. If there are reasons to believe that this is the case, other factors may be considered, including (1) the use of a subsidy programme by a limited number of certain enterprises, (2) the predominant use of a subsidy programme by certain enterprises, (3) the granting of disproportionately large subsidies to certain enterprises, and (4) the manner in which discretion has been exercised by the granting authority in the decision to grant a subsidy, including the frequency with which applications for a subsidy are refused or approved and the reasons for such decisions are of a particular relevance in this context.  In performing this assessment, account shall be taken of the extent of diversification of economic activities within the jurisdiction of the granting authority as well as of the length of time during which the subsidy programme has been in operation.

Article 3 of the Agreement on Subsidy and Countervailing Measuressingles out two types of prohibited subsidies, which are export subsidies and import substitution subsidies. The Export subsidies are subsidies contingent, in law or in fact, whether solely or as one of several other conditions, upon export performance, including the programmes enumerated in the Illustrative List of export subsidies in Annex I of the Agreement on Subsidy and Countervailing Measures. The second category of prohibited subsidies which is defined as subsidies contingent whether solely or as one of several other conditions, upon the use of domestic over imported goods.  Often, these take the form of local content requirements. In the US-Upland Cotton (2005), the Panel as well as the Appellate Body concluded that the subsidies at issue in that case, namely, payments to domestic users of US upland cotton, were subsidies contingent upon the use of domestic over imported goods and were, therefore, inconsistent with Article 3.1(b) of the Agreement on Subsidy and Countervailing Measures

The imposition of countervailing measures on imports to UAE, for example, will seek to offset the subsidy and increase the price of the imported product accordingly. These duties, if applied in line with the WTO Members obligations under the Agreement on Subsidy and Countervailing Measuresdo not constitute a barrier to trade but instead of that seek to restore the fair competition conditions between the domestically produced product and the imported product.In fact, subsidies are evidently used by governments to pursue and promote important and fully legitimate objectives of economic and social policy, but it may more probably have adverse effects on the interests of trading partners.

 

United Arab Emirates – Trade Barriers in International Trade

The trading system of UAE is open having lower tariff or non-tariff trading barriers. These UAE’s trading policies are serving as a means to achieve the actual growth earlier than any potential worldwide economical crisis and have supported the variations of economic activities. The investment system in UAE is more restrictive to a great extent than the trading system for example, foreign sharing in any local business or business activity is restricted to 49% of capital; on the other hand, it is permitted to get 100% ownership of any business or business activity in UAE if the company is located in a free zone.

Trading barriers in UAE

Business men doing trading from one Country with business men from other country normally have to face some trading barriers. These barriers are tariff (general ones) and non-tariff. Generally, the UAE’s trading system is open with fewer trade barriers in international trade.

The Unified Economic contract among GCC members allows eliminating more or less every trade barrier among them; on the other hand, there’re a few conditions causing imposition of trading restrictions. For example, product that is not allowed to be imported or exported in any member country will be cause to undergo applicable local regulations not to withstand the elimination of trade barrier.

Tariffs and non-tariff trade barriers in international trade

Tariff rates are continually reviewed and are cause to undergo changes without any notice. So, it is strongly recommended to reconfirm about tariff rates earlier than trading in United Arab Emirates (UAE).

Many free trading zones in UAE have been created, where custom taxes need to be paid. Products can only be traded by a business entity that is listed officially in the UAE.

Consistent with the custom law, all goods that meet the GCC regulations can be imported where one needs not to pay any custom duty. On the whole, UAE charges 5% as a basic custom duty on all imports made from out of GCC member countries expect from countries with joint trading agreement or other worldwide commitment.

Countervailing measures and anti dumping duties

UAE together with GCC member countries has formally signed the GCC Law regarding anti dumping duties and countervailing measures. The GCC Laws seek to give consistent safety to industries of GCC counties from unfair international trading for example dumping (unreasonable prices of imported goods), countervailing subsidy, anti dumping duty calculation and an unjustifiable raise of the imports of some products (for which safeguard rules are imposed).

The countervailing measures described according to common law of GCC are applicable only to imports of goods from non-GCC counties. With respect to GCC law nature, UAE cannot force these countervailing measures against imports of goods made from Saudi into the region.

The GCC permanent committee is legally the authority which is empowered to take provisional measures against dumped or subsidized imports as well as against the increased imports while the Ministerial Committee is mandated by the GCC Common Law on antidumping, countervailing and safeguards to take final decisions to impose definitive countervailing duties, anti-dumping duties, or safeguard measures.

For the implementation of above measures, a causal link must be established between the unfair trade practice and the injury caused or threatens to cause to the to GCC Domestic industry.

Subsidy and Countervailing Measures

The definition of subsidy was for the first time introduced in the WTO Agreement on Subsidy and Countervailing Measures. Indeed, the definition turns around three main components: (i) a financial contribution (ii) by a government or any public body within the territory of a Member (iii) which confers a benefit. All three of these elements must be satisfied in order for a subsidy to exist.

However, unlike the common understanding, not every subsidy is subject to multilateral disciplines and can be subject to countervailing measures. Only a subsidy, which is found “specific” within the meaning of Part I of the SCM Agreement is subject to multilateral, disciplines and can be subject to countervailing measures. In other words, a subsidy within the meaning of the SCM Agreement is not subject to the Agreement unless it has been specifically provided to an enterprise, industry, or group of enterprises or industries.

The basic principle is that a subsidy, which is specific to an enterprise, an industry or a region, distorts the allocation of resources, therefore makes goods artificially competitive against non-subsidized goods, and thus negatively affect competitors not due to the merit of the firm, but only because of the subsidy. For the same reason, where a subsidy is widely available to all firms operating within the country, such a distortion in the allocation of resources is presumed not to occur and therefore the subsidy is not specific.

Specificity according to the Agreement on Subsidy and Countervailing Measures

While the term subsidy is broadly defined, covering a wide scale of governmental support, not all subsidies are countervailable. Rather, a subsidy must be specific in order to be countervailable.

There are four types of “specificity” within the meaning of the SCM Agreement:

  • Enterprise-specificity. A government targets a particular company or companies for subsidization;
  • Industry-specificity. A government targets a particular sector or sectors for subsidization.
  • Regional specificity. A government targets producers in specified parts of its territory for subsidization.
  • Prohibited subsidies. A government targets export goods or goods using domestic inputs for subsidization.

The SCM Agreement makes a clear distinction between the De jure specificity and De Facto specificity. In fact, where a subsidy is explicitly limited sectorally or regionally, either by the granting authority, or by legislation, it is de jure specific.  However, it is quite possible that a subsidy at face value is non-specific, but in fact is operated in a specific manner.  There are certain factors that may be considered in this respect, including the use of a subsidy programme by a limited number of certain enterprises, predominant use of certain enterprises, the granting of disproportionately large amounts of subsidy to certain enterprises, and the manner in which discretion has been exercised by the granting authority in the decision to grant a subsidy. The examination may lead to a finding of de facto specificity.

An example of subsidy calculations and countervailing measures

For example, if the law of a country B provides for an exemption on income tax for companies working specifically in the wood sector. Therefore, company A receives an income tax exemption. It produced and exported 200,000 tonnes of product Y. Assuming that it makes 10 million $ profit on product Y and the normal tax rate is 30%, the value of the exemption in total would be 3 million $ (10 Million * 30%), which equates to a per tonne value of 15 $ (3 Million / 200,000 tonnes).

The company A also receives a government loan of 10 Million $ at 10% interest for the same project, and the normal commercial interest rate is 30%. Since the loan is repayable, the amount of subsidy would be the difference between the interest paid (10Million $ * 10% =1 Million $) and the normal amount payable at commercial rates (10 Million $ * 30% = 3 Million $) which equates to 2 Million $ (3 Million $ – 1 Million $). The subsidy per tonne would therefore be 10$ (2 Million $ / 200,000 tonnes of production).

The above examples clearly show how exporters receiving a specific subsidy can reduce their prices to the importing markets due to the effects of the subsidy and not to the merit of the firm  and therefore help those exporters to unfairly compete with domestic producers in the importing market and cause injury to the domestic producers.

Remedial measures to be applied against Subsidies.

 The SCM Agreement uses the three terms ‘adverse effects’, ‘serious prejudice’ and ‘material injury’ to indicate certain conditions that must be met for remedies to be applied.  The first two terms relate to the multilateral track where actionable subsidies are concerned, while the last term relates to the unilateral – countervailing duty – track. In this respect, we shed light on the unilateral path relevant to the determination of material injury to the domestic industry so that countervailing measures can be imposed on subsidized imports.

The WTO SCM Agreement allows countervailing measures to be imposed once the investigating authority of the importing country determined that subsidized imports caused or threatened to cause material injury to the domestic industry producing the like product. In making this determination, the investigation Authority will examine the volume of subsidized imports and the effect of the subsidized imports on prices in the domestic market for like products and the consequent impact of these imports on domestic producers of such products.

With reference to the effect of subsidized imports on the domestic industry, the SCM Agreement provides that the investigating authority shall evaluate all relevant economic factors bearing upon the state of the domestic industry, including actual or potential declines in sales, profits, output, market share, productivity, return on investments, utilization of capacity, actual or potential effects on cash flow, inventories, employment, wages, growth and ability to raise capital or investments.

 A countervailing measure – usually in the form of a duty – is applied to counteract the injurious effects of subsidized imports on the importing market and restore fair competition. It can be a percentage of the price of the goods, a fixed amount per unit or a minimum import price as the goods enter the importing.

 

Imposition of Antidumping Measures in UAE

Imposition of Antidumping Measures in UAE

 Usually, anti dumping duty is like excise duty that a government charges on imported products if it considers that their export price are lower than their normal value in the exporting country. Dumping is a practice where a company exports products at a price lower than the price it normally charges on its own home market. To provide protection to local producers producing like products, WTO Members impose anti-dumping duty on products they consider are entered in their local market at prices below the normal value.

 Anti-Dumping according to World Trade Organization (WTO) Agreements

The WTO is the world trade organization that regulated the dumping and how to counter dumped imports via the Agreement on implementation of Article VI of the General Agreement on tariffs and Trade 1994. The WTO Agreement commonly known as “ the Agreement on Antidumping” doesn’t illegitimate the practice of dumping itself but regulates when there is dumping and the action to be taken against dumping only when it is causing material injury or threatens to cause material injury to the domestic industry or also it materially retards the establishment of an industry. Broadly speaking the WTO agreement allows governments to act against dumping where there is genuine (“material”) injury to the competing domestic industry. In order to do that the government has to be able to show that dumping is taking place, calculate the extent of dumping (how much lower the export price is compared to the exporter’s home market price), and show that the dumping is causing injury or threatening to do so.

 The dumping is not enough, Anti-dumping measures can only be applied if the dumping is hurting the industry in the importing country.

 The WTO allows anti-dumping measures to be imposed only once the investigating authority of the importing country determined that dumped imports caused or threatened to cause material injury to the domestic industry. In making this determination, the investigation Authority will examine the volume of dumped imports and the effect of the dumped imports on prices in the domestic market for like products and the consequent impact of these imports on domestic producers of such products. With reference to the effect of dumped imports on the domestic industry, the Agreement on Antidumping provides that the investigating authority shall evaluate all relevant economic factors bearing upon the state of the domestic industry, including actual or potential declines in sales, profits, output, market share, productivity, return on investments, utilization of capacity, actual or potential effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments, and the magnitude of the margin of dumping.

An example of antidumping measures

Read this example to understand anti-dumping measures. Let’s say, an exporter in Country A exports it’s product at $8 per piece to a company in Country B. This exporter is selling the like product in Country A at $12 per piece. Then, in order to establish the antidumping duty and subject to the proceedings governing fair comparisaon, we will compare the normal value by which the product is sold in country A ( 12$) with it’s export price to country B ( 8$), the difference (4$) is called dumping margin and it is then it is expressed in a percentage of the export price of the product ( 4$/8$*100% =50$) which will correspond to the antidumping duty that will be imposed on each import of the concerned product to country B. This antidumping duty will offset the dumping practice and restore the fair comparison between the domestically produced product and the imported product in the importing country market.

 Imposition of antidumping duties measures in UAE

According to GCC Industrial Cooperation Committee decision, an anti-dumping duty is now imposed on every GCC car battery ranging from 35 to 115 empire imported from South Korea. This anti-dumping duty varies according to individual manufacturers and goes from 12 up to 25 percent of CIF value imported batteries. These antidumping duties are being imposed from 25 June 2017. It will be applicable for five years with a possible extension for more five years upon the reception of request of the GCC domestic industry to initiate a sun set review in order to determine whether the expiry of the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury.

 In practice, after the GCC Ministerial Committee ruling to impose this antidumping measure, possible other trade remedy measures can be imposed in the future, especially that there are four trade remedy cases which are currently under investigation.

 The international trade-consulting firms, including World Deal Consulting, can play an important role if any business party believes that the above mentioned anti-dumping measures are not fair.

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