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The Law Reviews

The International Trade Law Review

Edition 2


Published: November 2016Contents

Editors

Editors' Q&A

i) What are the hot topics?

In the EU, there have been a number of hot topics in recent years, including market economy status, cost adjustment, administrative protective order, modernisation of trade instruments, and potential and partial abolition of the Lesser Duty Rule. These topics are quite technical but any changes may have far-reaching effects.

 

ii) Tell us about any key legal developments – recent or pending – and their international impact.

The Appellate Body report in the Biodiesel case proceedings is a landmark decision. Not only did the Appellate Body clarify that the investigating authority must, without exception, respect cost records that are consistent with generally accepted accounting principles, but in case of any cost distortions, the authority may not use replacements from outside the country of origin. The pernicious and increasing practice of out-of-country benchmarks has now finally been ruled out. This will have a profound impact on future cases, especially in cases with regard to China, with the impending expiry of the relevant part of the protocol of accession. Vermulst Verhaeghe Graafsma & Bronckers represents Indonesia in this proceeding.

 

iii) What are the biggest opportunities and challenges for practitioners and clients?

As a client doing business, international trade is getting to be increasingly complex, with the increasing rise of protectionism around the globe. Simultaneously, for practitioners, there are some clear trends that pose their own challenges, such as a multiplication of small skirmishes (i.e., minor disputes with relatively low stakes), along with some very large cases that occur every few years. Therefore, it is important to keep on doing the small cases and keep up with the trends while not stretching oneself too thin for when the occasional mammoth case surfaces. Other than this, the use of the dispute settlement mechanism (DSB) at the World Trade Organization has become more prevalent. The DSB is gradually displacing the local EU courts in Luxembourg as the forum of choice, provided there is governmental support for bringing a case. Meanwhile, for a practitioner, it is a challenge (if not a pleasure!) to keep up with two parallel sets of jurisprudence, which may not always overlap or that may just only overlap partially.


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