I OVERVIEW OF TRADE REMEDIES
Trade defence instruments (anti-dumping, countervailing and special (safeguard)2 measures) have been applied in Ukraine since 1999 when the Law of Ukraine on Protection of Domestic Producer against Dumped Imports (the Anti-Dumping Law), the Law of Ukraine on Protection of Domestic Producer against Subsidised Imports (the Anti-Subsidy Law) and the Law of Ukraine on Application of Special Measures to Imports into Ukraine (the Safeguard Law) first entered into force.
Thereafter, trade defence instruments have been applied by domestic industries quite often. As of 3 June 2019,3 the following anti-dumping investigations and reviews are underway in Ukraine related to imports that originate in:
- Russia – related to imports of galvanised sheets, wire ropes and ammonium nitrate;
- Belarus – related to imports of rebars and gas concrete blocks;
- China – related to imports of incandescent electric lamps, galvanised sheets and steel hot-worked seamless pipes;
- Moldova – related to imports of rebars; and
- Kazakhstan – related to imports of railway bearings.
Moreover, a review of safeguard measures applied to foam blocks and sheets, notwithstanding country of origin and export, is in process.
At the same time, the following trade defence remedies are in place on imports of the following products originating in:
- Russia: – 11 anti-dumping duties in respect of:
- crossing points;
- ammonium nitrate;
- glass containers for medical purposes of up to 0.15 litres;
- certain nitrogen fertilisers;
- certain types of chocolate products and other cacao-containing products;
- caustic soda;
- certain urea-formaldehyde products;
- rebars and wire rods;
- cement; and
- one countervailing duty in respect of passenger cars;
- China – four anti-dumping duties in respect of incandescent lamps; articles made from ferrous metal; rubber stoppers for medical use and seamless pipes;
- Belarus – four anti-dumping duties in respect of fibreboards, salt, incandescent electric lamps and cement;
- Kyrgyzstan – one anti-dumping duty in respect of incandescent lamps;
- Poland – one anti-dumping duty in respect of rubber stoppers for medical use;
- Moldova – one anti-dumping duty in respect of cement; and
- two safeguard measures in respect of foam blocks and sheets, sulphuric acid and oleum, notwithstanding the country of origin and export.
Under Ukrainian law, the following state authorities are involved in trade defence proceedings:
- the Interdepartmental Commission on International Trade (the Commission) is responsible for the adoption of key decisions in the course of proceedings. This includes initiation of investigations; positive/negative conclusions on the existence of dumping, specific subsidies or surge in imports and their amounts; positive conclusions on existence of injury; termination of proceedings with or without trade defence remedies;
- the Ministry of Economic Development and Trade of Ukraine (MEDT) is responsible for procedural issues including registering interested parties; collecting answers to questionnaires; holding hearings and consultations; and drafting preliminary and definitive reports following preliminary or final results of investigations with the relevant recommendations to the Commission on the decisions to be adopted; and
- the Ministry of Finance of Ukraine and the State Fiscal Service of Ukraine is responsible for providing the MEDT with all relevant statistics related to proceedings.
Irrespective of the type of investigation, the proceedings are very similar for all of types and include the following stages:
- submission by a domestic industry of an application for initiation of the relevant investigation;4
- initiation by the MEDT of an anti-dumping/anti-subsidy procedure to verify sufficiency of evidence of dumping/non-legitimate subsidy, injury and causal link in the application. Based on the results of the anti-dumping/anti-subsidy procedure, the MEDT drafts a report with the relevant recommendations for the Commission either to initiate investigation or not;
- adoption by the Commission of a decision on investigation initiation or on refusal to initiate. Usually, the above decision shall be adopted within 30 days of submission of an application to the MEDT's registry;
- publication of an official notification on investigation initiation in Uryadovyy Kuryer, the governmental newspaper – Ukrainian law is silent on the exact deadlines. In practice, the relevant term differs from case to case. The date of the notification publication is considered as the date of official investigation initiation;
- conducting an investigation by the MEDT, including:
- registration of interested parties in the investigation – usually the relevant requests shall be submitted within 10 to 30 days of the investigation initiation;
- submission by the interested parties of their commentaries on an investigation's initiation, including on application of the domestic industry – usually 20 to 60 days after the investigation initiation;
- submission by the interested parties of their answers to the questionnaires. There are no special deadlines for the MEDT to send questionnaires to the interested parties. In practice, terms differ considerably from case to case and may vary from two to five months after the investigation initiation. Initially, the MEDT grants 37 days to answer questionnaires. However, this term may be extended for a period of not more than four weeks based on duly substantiated requests;
- on-the-spot verifications to be conducted by the MEDT;
- hearings are usually conducted at the final stage of the investigation. Under Ukrainian law, hearings are only conducted if they are duly requested within terms set forth by the MEDT in the notification on investigation initiation (usually within 10 to 30 days of the investigation initiation). At present, the MEDT requests interested parties submit pre-hearings submissions and, following the results of the hearings, post-hearings submissions in writing within five to 10 days of the hearings. Otherwise, their oral statements will be not taken into account;
- comments by the interested parties on the individual dumping margin calculation that since 2018 are disclosed by the MEDT to the relevant interested parties; and
- comments by the interested parties on the draft definitive report of the MEDT with conclusions on the results of the investigation. Under Ukrainian law, any draft report shall be sent, as a rule, one month prior to adoption by the Commission of a definitive decision. However, in practice, such terms differ considerably from case to case and may be from two days to one month;
- adoption by the Commission of a definitive decision based on the definitive report of the MEDT either on application of trade defence remedies or termination of investigation without application thereof. The relevant decision shall be published in Uryadovyy Kuryer. If trade defence remedies are applied, they will be imposed only within a certain period after the relevant notification publication. Previously, measures were applied 30 days after publication of any decision on the application of measures. However, there are now more and more cases with longer periods of 45 to 60 days;
- challenging the Commission's decision before the court not later than one month after imposition of the relevant remedies;
- reviews. The Anti-Dumping Law stipulates reviews, including sunset, interim, newcomer and accelerated reviews. The Anti-Subsidy Law stipulates the following types of reviews: sunset, interim and newcomer reviews. The Safeguard Law sets forth a review for interim liberalisation of safeguard measures applied and for the extension of safeguard measures;
- an anti-circumvention investigation is conducted in cases of unfair trade practices involving foreign producers and exporters aimed at avoiding the application of anti-dumping and countervailing measures; and
- renewal of investigation under Anti-Dumping Law in cases when the application of anti-dumping duties has not changed import prices or changed them insignificantly.
Under Ukrainian law, all documents submitted in the course of an investigation shall be in Ukrainian or accompanied by Ukrainian translation. In case of violation of the above requirement, the relevant information and documents shall not be taken into account by the MEDT. In practice, this obligation may be very burdensome for the interested parties, especially in case of submission of answers to questionnaires, because usually the MEDT requires lots of supporting documents to be submitted together with the answers to the questionnaire, all of which shall be duly translated into Ukrainian. Moreover, some of the supporting documents shall be notarised or certified by the seals of the interested parties.
In the absence of an electronic database of all investigation-related documents, in order to ensure transparency, Ukrainian law obliges all interested parties to send all their submissions to other interested parties to the investigation for commentaries by post. No unsent documents and information shall be taken into consideration by the MEDT. This is also burdensome for the interested parties.
Pursuant to Ukrainian law, any documents shall only be regarded as submitted in time if they are provided by the end of the working hours of the MEDT and duly registered by the MEDT's registry with the relevant date. In practice, to respect the relevant deadlines, it is highly advisable to submit documents to the MEDT's registry at least one working day prior to the deadline, otherwise, there is a risk that the documents will not be registered in time. In such cases, the delayed documents will not be taken into account by the MEDT.
II LEGAL FRAMEWORK
In Ukraine, trade defence instruments are regulated by:
- international treaties duly ratified by the Parliament of Ukraine and constituting the national legislation of Ukraine under the Law of Ukraine on International Treaties of Ukraine, specifically:
- GATT 1994;
- Agreement on Application of Article VI of the GATT 1994;
- Agreement on Safeguards; and
- Agreement on Subsidies and Countervailing Measures; and
- special national legislation consisting of:
- Anti-Dumping Law;
- Anti-Subsidy Law;
- Safeguard Law; and
- Law of Ukraine on Foreign Economic Activity (Article 31 establishing deadlines for challenging the Commission's decisions before the court).
Even though the above Laws were adopted during Ukraine's accession to the WTO and were declared as fully compliant/based on the relevant WTO agreements, there are some discrepancies. For instance, the Safeguards Law does not stipulate a requirement to establish unforeseen developments in the course of safeguard investigations. The Anti-Subsidy Law still divides subsidies into legitimate subsidies (for such subsidies the application of countervailing measures is not allowed) and illegitimate subsidies (which may be subject to countervailing measures), contrary to the Agreement on Subsidies and Countervailing Measures, which since 2000 has not addressed non-actionable subsidies.
III TREATY FRAMEWORK
i Free trade areas
Since its accession to the WTO in 2008, Ukraine has made persistent efforts to strengthen economic ties with its trade partners and to create new business opportunities by establishing free trade areas (FTAs). To date, Ukraine has FTA Agreements with the European Union, European Free Trade Association (EFTA), the Commonwealth of Independent States (CIS), and agreements with a number of other states. For the purposes of this review, we will focus only on the provisions of the FTAs in respect of trade defence instruments.
ii EU–Ukraine FTA (DCFTA)5
The DCFTA provides for separate rules for safeguards in general and safeguards on passenger cars. In the part containing general rules on safeguards, the respective WTO obligations are reaffirmed and additional provisions on transparency and due process are added, as well as a clause that the parties shall endeavour to impose safeguards in a way that least affects bilateral trade. Additionally, Ukraine may apply a safeguard measure in the form of a higher import duty on passenger cars originating in the EU if certain conditions are met. Notably, safeguards and safeguards on passenger cars shall not be applied simultaneously.
Anti-dumping and countervailing measures
The parties reaffirmed their respective WTO obligations and envisaged provisions on:
- transparency. For example, disclosure of all essential facts and considerations concerning application of measures immediately after provisional measures and before final determination. Interested parties shall be given 10 days to comment on the final disclosure;
- due process. For example, provisional anti-dumping or countervailing measures may be applied by the parties only if a preliminary determination has shown the existence of dumping or subsidy causing injury to a domestic industry;
- consideration of the public interests prior to imposition of the measures; and
- lesser duty rule.
DCFTA provisions on dispute settlement are not generally applied to the trade remedies chapter, subject to some exceptions.
iii CIS (Armenia, Belarus, Kazakhstan, Kyrgyz Republic, Moldova, Russia, Uzbekistan)–Ukraine FTA6
The parties agreed to impose safeguards in line with WTO provisions. The parties agreed as well to exclude other parties from application of safeguards if import of the product concerned from such parties does not cause injury to domestic industry, that is, if the following conditions are simultaneously met:
- the other party to the FTA is not among the top five exporters of the product concerned to the country imposing the measures for the past three years;
- for the past three years, the volumes of import from the other party decreased or increased by lower volumes (in absolute and comparative figures) than from other states; and
- the level of prices for imported products from the other party is equal to or less than the level of prices of the domestic producer of like or directly competitive products.
The party intending to impose safeguard measures shall inform the parties to the FTA of its intention. The parties hold consultations to find a mutually acceptable solution.
Anti-dumping and countervailing measures
The parties reaffirmed their respective WTO obligations and agreed to disclose essential facts and conclusions not later than 30 days after the end of the investigation. The parties to the CIS FTA shall have adequate possibility to hold consultations before the end of the investigation.
iv EFTA–Ukraine FTA7
The EFTA–Ukraine FTA sets out separate provisions for global safeguard measures and bilateral safeguard measures.
As to the former, the parties reaffirmed their respective WTO obligations and added that a party taking a safeguard measure under WTO provisions shall, to the extent consistent with obligations under the WTO, exclude imports of an originating good from another party if such imports are not a substantial cause of serious injury or threat thereof.
Bilateral safeguard measures could be taken if, owing to reduction or elimination of customs duty under the EFTA–Ukraine FTA, a product originating in a party to the agreement is being imported into the territory of another party in such increased quantities that it constitutes substantial cause of serious injury or threat thereof to domestic industry. Bilateral safeguard measures may only be taken in case there is sufficient evidence of the above facts, and only to the extent necessary to eliminate the injury.
The parties agreed to non-application of anti-dumping measures, as provided in the respective WTO Agreements in relation to products originating in another party. It is also mentioned that this non-application provision could be reviewed in a five-year period.
The parties reaffirmed their respective WTO obligations. However, they also added a clause requiring parties to seek a mutually acceptable solution before initiation of the investigation. It provides that the party considering initiating an investigation shall notify in writing the party whose goods are subject to investigation and allow for a 60-day period with a view to finding a mutually acceptable solution. Consultations shall take place in the Joint Committee if any party so requests within 30 days of the receipt of notification.
v Canada–Ukraine FTA (CUFTA)8
The parties reaffirmed their obligations under the respective WTO provisions and added a clause allowing a party under certain conditions to take emergency actions (e.g., suspend the further reduction of a rate of duty or increase a rate of duty).
Emergency actions may only be taken during the transition period and only if reduction or elimination of duties pursuant to the CUFTA resulted in a significant increase in imports of a certain product that causes or threatens to cause serious injury to the domestic industry.
A party shall maintain an emergency action only to the extent necessary to prevent or remedy serious injury, for a period not exceeding three years or within the transition period.
CUFTA also includes a non-cumulation clause in relation to safeguards and emergency actions. A party shall not adopt or maintain, with respect to the same goods and at the same time, an emergency action under the terms of CUFTA and a safeguard measure under WTO provisions.
Anti-dumping and countervailing measures
The parties reaffirmed their obligations on anti-dumping and countervailing measures under the respective WTO provisions.
Dispute settlement mechanisms under CUFTA shall not be applied in relation to anti-dumping and countervailing measures.
FTA with Montenegro
The Montenegro–Ukraine FTA provides for separate provisions for global safeguard measures and bilateral safeguard measures.
As to the former, the parties reaffirmed their respective WTO obligations. Additionally, they added a provision on transparency: any party intending to impose safeguard measures at the request of another substantially interested party shall immediately provide ad hoc written notification of all pertinent information on the initiation of the safeguard investigation, the provisional findings, and the final findings of the investigation.
Bilateral safeguard measures can be imposed if reduction or elimination of customs duty under the Montenegro–Ukraine FTA results in increased quantities of imports of such goods, causing serious injury or threat thereof to the domestic industry.
A party shall take bilateral safeguard measures upon clear evidence and to the minimum extent necessary to remedy or prevent injury.
Anti-dumping and countervailing measures
The parties reaffirmed their respective WTO obligations. They also added additional clauses on application of a lesser duty rule and certain rules concerning transparency: full disclosure of all facts after the provisional measures and before the final measures, provision of a 10-day period to comment on the final disclosure, etc.
FTA with Macedonia
Under the Macedonia–Ukraine FTA, initiation of safeguard procedures shall be preceded by notification of the opposite party to the FTA and consultations between the parties with a view to finding a mutually acceptable solution. Safeguards may be adopted if the Joint Committee fails to find a solution within 30 days.
Anti-dumping and countervailing measures
The parties reaffirmed their respective WTO obligations without introduction of new legislative provisions.
vi Other FTAs
Ukraine also has FTA Agreements with Azerbaijan, Georgia, Tajikistan, Turkmenistan and Uzbekistan, which provide for preferential trade conditions and trade cooperation, but do not cover trade defence issues.
IV RECENT CHANGES TO THE REGIME
In the past year, Ukrainian legislation in the field of trade defence instruments was unchanged.
However, we consider it necessary to point out the following recent practices introduced in 2018 and the first quarter of 2019.
i Domestic industry status
Initially an anti-dumping investigation on certain urea-formaldehyde products from Russia was initiated against two products – urea-formaldehyde resin and urea-formaldehyde concentrate. Following the results of the investigation, the Ministry decided to exclude urea-formaldehyde concentrate from the scope of measures for the following reasons:
- Urea-formaldehyde resin and urea-formaldehyde concentrate are different products (in terms of their physical, technical and chemical characteristics, as well as their spheres of application), and they are not interchangeable.
- The domestic producer has not made sufficient sales on the internal market of Ukraine. Notably, the relevant decision of the MEDT and the Commission is silent on what should be considered sufficient and insufficient (in terms of exact volumes). Moreover, it is unclear how insufficient sales on the internal market could lead to termination of an investigation into a certain product, if both the Agreement on Application of Article VI of the GATT 1994 and the Anti-Dumping Law stipulate such form of material injury as material retardation of the establishment of such an industry. This means that there may even be situations when there are no sales, but injury is caused.
- The domestic industry has imported urea-formaldehyde concentrate in large volumes. It is worth emphasising that both the MEDT and the Commission have not commented on the exact volumes of imports that deprive the domestic industry of its status and the fact that the domestic industry has not imported the product during the period of investigation (but only during the first year of three consecutive years of injury analysis).
The MEDT concluded that in such circumstances it was precluded from due investigation of the national producer status, its economic conditions and, therefore, material injury.
ii Tolling schemes
In the safeguard investigation on sulphuric acid, the MEDT faced an issue with injury analysis for the domestic industry employing tolling schemes. Even though the MEDT has not provided detailed explanations on the matter, it is clear that in such cases participation of both contractors and tollers is crucial.
iii Termination of investigation in the absence of necessity to apply countervailing measures
On 4 December 2018, Ukraine terminated without measures an anti-subsidy investigation on cars from Uzbekistan, which was initiated two months earlier, on 3 October 2018. Right after initiation of the investigation, the Uzbekistan authorities announced that they intend to impose import restrictions on several groups of Ukrainian products. Although the official notification said the investigation was terminated because the measures on cars 'are not necessary', some experts caution the Ukrainian authorities against the practice of termination of investigations beyond the official procedure as the result of negotiations.
iv Termination of investigations, reviews without application and extension of anti-dumping measures
It is worth emphasising that in Ukraine, it is very rare to see termination of investigations and reviews without the application or extension of anti-dumping measures. Meanwhile, in the period in question there were several such examples. First, in April 2019, the Commission terminated an anti-dumping investigation against imports into Ukraine of syringes from China, Turkey and India because there were no sufficient grounds for application of definitive anti-dumping duties. Meanwhile, in November 2018, the Commission terminated a sunset review of anti-dumping measures applied to imports into Ukraine of asbestos sheets from Belarus with reference to an absence of evidence that termination of measures would be likely to lead to continuation or recurrence of dumping and injury.
v End use of the products subject to anti-dumping duties
Sometimes anti-dumping measures are applied to products classified under customs codes that cover not only the products in question, but also other products. In practice, it is quite difficult for the customs authorities to apply measures in such cases. In one of the most recent cases, where anti-dumping duties were applied to imports from China and Poland of rubber caps destined for medical purposes, it was stipulated in the decision that if the rubber caps were cleared for another purpose and it was subsequently revealed that in practice they were used for medical purposes, definitive anti-dumping duties would be paid.
V SIGNIFICANT LEGAL AND PRACTICAL DEVELOPMENTS
One of the urgent issues related to trade defence instruments in Ukraine is the outdated legislation that was adopted in 1998, which does not implement recent developments as set forth in WTO jurisprudence. The Commission and the MEDT are not able to improve their practice or fill in the gaps by applying the relevant new developments because under Article 19 of the Constitution of Ukraine, both the Commission and the MEDT shall act only as directly set forth by law.
Ukrainian law does not precisely define all stages of investigation with specific time limits, or address documents to be issued by the MEDT, which in practice results in non-transparency and can even be detrimental to securing the rights of interested parties. For instance, Ukrainian law does not directly allow for conducting any consultations between the MEDT and interested parties, even to clarify certain important issues (e.g., controversial PCN coding, problems with dumping margin calculations).
According to the business community, the investigation procedure as currently set forth by the law is not transparent as it does not provide that the MEDT discloses its position on all important issues, except for sending its final determination to the interested parties at the close of an investigation. Therefore, even though interested parties usually submit many different documents to the MEDT and address all its requests, they are not able to identify the approach taken by the MEDT and understand the its relevant position in due course, leaving this until the end of the investigation when it is usually too late to clarify or improve submissions. It is worth emphasising that recently this practice has changed in relation to answers to questionnaires. Specifically, the MEDT now first sends questionnaires. If they are answered incorrectly, usually one or even several clarification requests are followed. If the necessary information is not collected, the MEDT notifies the relevant interested parties in detail of inconsistences or other loopholes and asks for comments. In the absence of the relevant comments, questionnaires will not be taken into account.
Another problem arises from the stipulation in Ukrainian legislation in the field of trade defence instruments of certain inoperative provisions. For example:
- The law sets as a mandatory precondition for the initiation of an anti-circumvention investigation, newcomer review, and accelerated review, the placement of a deposit for the customs authorities and introduction of a procedure for contract registration. However, Ukrainian law does not establish the procedures for deposit placement and contract registration, which is a stumbling block for initiation of the above procedures in Ukraine.
- The Safeguard Law stipulates the possibility to reconsider a decision on application of safeguard measures upon the request of the State Fiscal Service of Ukraine, the domestic industry, or other state authorities within 30 days of publication of the relevant decision. Following the results of this reconsideration, the said decision may either be terminated, amended or left as it is. However, in the absence of the relevant detailed rules, it is questionable whether this option could be applied in practice.
- The anti-circumvention mechanism may be engaged in very limited cases – only in case of an increase in imports of the products subject to anti-dumping or countervailing duties from third countries or in case of assembling of the products in issue in Ukraine from imported parts. At the same time, the most frequently used types of anti-dumping and countervailing duties circumvention, such as minor changes to the products and their further importation under different customs code, cannot be addressed by an anti-circumvention investigation.
Another problem is connected with the enforcement by the Commission and the MEDT of the relevant court decisions. In case of full invalidation of the Commission's decision on application of trade defence instruments, the situation is clear because such decisions are invalidated automatically. However, the situation is absolutely unclear when the Commission's decision is invalidated partially in respect of a certain foreign producer or exporter subject to individual anti-dumping or countervailing measures. In practice, in the absence of specific instructions from the court to the Commission and the MEDT, the latter is not in a position to reopen the proceedings (e.g., recalculate dumping margin or reinvestigate injury).
In Ukraine, there is also an issue with implementation of reports of panels and the Appellate Body adopted in the course of the WTO dispute settlement procedure; Ukrainian law does not specifically address this issue. Ukraine has only one example of practical implementation of such reports, namely the panel report in Ukraine – Passenger Cars. In this case, the panel established that Ukraine had not duly established all relevant circumstances allowing application of safeguard duties as well as seriously infringed procedural rules. As a result, and in light of the nature of the violations, the Commission adopted a decision to invalidate the relevant safeguard duties with reference to national interests. However, it is unclear how Ukraine will be able to implement reports that are not so straightforward when, for instance, reopening of the procedure will be required.
VI TRADE DISPUTES
Ukraine has been involved in seven disputes as a complainant, four as a respondent and 19 as a third party. A brief description follows:
- Ukraine v. Armenia – Measures Affecting the Importation and Internal Sale of Cigarettes and Alcoholic Beverages (DS411)9 – On 25 October 2010, the dispute settlement body (DSB) deferred the establishment of a panel.
- Ukraine v. Moldova – Measures Affecting the Importation and Internal Sale of Goods (Environmental Charge) (DS421)10 – On 17 June 2011, the DSB established a panel; however, a panel has not yet been composed.
- Moldova v. Ukraine – Taxes on Distilled spirits (DS423)11 – On 20 July 2011, the DSB established a panel; however, a panel has not yet been composed.
- Ukraine v. Australia – Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging12 – On 28 May 2015, Ukraine requested the panel to suspend its proceedings in accordance with Article 12.12 of the Dispute Settlement Understanding 'with a view to finding a mutually agreed solution'. On 30 May 2016, the panel's jurisdiction lapsed because it had not been requested to resume its work within 12 months of the suspension of the panel proceedings.
- Japan v. Ukraine – Definitive Safeguard Measures on Certain Passenger Cars (DS468)13 – On 30 October 2013, Japan requested consultations with Ukraine regarding the definitive safeguard measures imposed by Ukraine on imports of certain passenger cars. On 20 June 2014, the Panel was composed by the Director General. On 26 June 2015, the panel report was circulated to members. The Panel found that Ukraine acted inconsistently with Article XIX:1(a) of the GATT 1994, and Articles 2.1, 4.2(a), 4.2(b), 8.1, 4.2(c), 12.1, 12.2 and 12.3 of the Agreement on Safeguards. On 20 July 2015, the DSB adopted the panel report. On 6 October 2015, Ukraine informed the DSB that it had revoked the safeguard measures on the import of passenger cars.
- Russia v. Ukraine – Anti-Dumping Measures on Ammonium Nitrate from Russia (DS493)14 – On 7 May 2015, Russia requested consultations with Ukraine regarding anti-dumping measures imposed by Ukraine on imports of ammonium nitrate. Russia claimed that the measures were inconsistent with:
- Article 1; Articles 2.1, 2.2, 2.2.1, 18.104.22.168 and 2.4; Article 5.8; Articles 6.1, 6.2, 6.4, 6.5.1, 6.6, 6.8 and 6.9; Articles 9.2 and 9.3; Articles 11.1, 11.2 and 11.3; Article 18.1; and Annex II of the Anti-Dumping Agreement; and
- Article VI of the GATT 1994.
On 29 February 2016, Russia requested the establishment of a panel, which was composed on 2 February 2017 by the Director General. On 20 July, the WTO circulated the panel report. As of June 2019, the case is being considered by the Appellate Body.
- Ukraine v. Russia – Measures affecting the importation of railway equipment and parts thereof (DS499)15 – The panel was composed on 2 March 2017. On 30 July, the WTO circulated the panel report. As at June 2019, the case is being considered by the Appellate Body.
- Ukraine v. Russia – Measures Concerning Traffic in Transit (DS512)16 – On 5 April 2019, the panel issued a report following consideration of the case. Ukraine has managed to prove that Russia's transit restrictions were not in compliance with Article V of GATT, but Russia has invoked Article XXI (b) (iii) of GATT (i.e., the national security exception) and the panel ultimately ruled that Russia applied this correctly. Ukraine has not challenged the case before the Appellate Body.
- Russia v. Ukraine – Measures relating to Trade in Goods and Services (DS525)17 – On 19 May 2017, Russia requested consultations with Ukraine with respect to alleged restrictions, prohibitions, requirements and procedures adopted and maintained by Ukraine in respect of trade in goods and services as well as transit.
- Ukraine v. Kazakhstan – Anti-dumping Measures on Steel Pipes (DS530)18 – Ukraine has requested consultations with Kazakhstan in respect of anti-dumping duties applied by the Eurasian Economic Union to certain types of pipes with origin in Ukraine. The dispute is at the consultation stage.
- Ukraine v. Russia – Measures Concerning the Importation and Transit of Certain Ukrainian Products (DS532).19 On 13 October 2017, the parties have conducted consultations.
- Ukraine v. Armenia – Anti-Dumping Measures on Steel Pipes (DS569)20 – Ukraine has requested consultations with Armenia in respect of anti-dumping duties applied by the Eurasian Economic Union to certain types of pipes with origin in Ukraine. The dispute is at the consultation stage.
- Ukraine v. Kyrgyz Republic – Anti-Dumping Measures on Steel Pipes (DS570)21 – Ukraine has requested consultations with the Kyrgyz Republic in respect of anti-dumping duties applied by the Eurasian Economic Union to certain types of pipes with origin in Ukraine. The dispute is at the consultation stage.
It goes without saying that Ukrainian legislation in the field of trade defence instruments shall be completely revised to fully implement well-established WTO jurisprudence. During 2016–2017, the MEDT, together with the legal and business communities, elaborated the relevant draft laws aimed at improvement of the current regulations. Eventually, on 17 July 2017,22 the MEDT presented five draft laws considerably changing the legal environment in the field of trade defence instruments and eliminating many problems currently faced by the Commission, the MEDT and the interested parties of investigations. At the time of writing, the draft laws are being considered by the Parliament of Ukraine.
1 Anzhela Makhinova is a partner at Sayenko Kharenko. The author expresses her gratitude to Ivan Baranenko, associate at Sayenko Kharenko, for assistance in drafting Section III of this chapter.
2 Instead of internationally recognised terms 'safeguards, safeguard investigations', Ukrainian law operates with the terms 'special measures, special investigations'. To avoid any misunderstandings, we use the terms 'safeguards, safeguard investigations' for the purposes of this chapter.
3 According to the official database of the Ministry of Economic Development and Trade of Ukraine – http://me.gov.ua/Documents/Detail?lang=uk-UA&id=2d92511f-c6fa-468a-97f3-bc353742db15&title=ZakhistInteresivNatsionalnikhTovarovirobnikivNaVnutrishnomuRinku.
4 Although Ukrainian law allows initiation of trade defence proceedings ex officio, there is only one relevant example in Ukraine's history: a safeguard investigation related to imports into Ukraine of certain oil products initiated on the basis of the materials submitted by the Ministry of Energy and Coal Industry
5 Provisional application of DCFTA started on 1 January 2016, entered into force on 1 September 2017.
6 Entered into force on 20 September 2012. Political and economic discrepancies between Ukraine and Russia as well as participation of Ukraine in the DCFTA with the EU led to the unilateral suspension by Russia of the CIS FTA Agreement with regard to Ukraine and imposition of regular customs duties to Ukrainian goods: http://kremlin.ru/acts/bank/40358, http://kremlin.ru/acts/bank/40310. Ukraine, in turn, imposed retaliatory measures of the same nature against Russian goods and agricultural products: http://zakon3.rada.gov.ua/laws/show/1146-2015-%D0%BF. These decisions, however, did not impact the trade regime between Ukraine and other CIS FTA members.
7 Entered into force on 1 June 2012.
8 Entered into force on 1 August 2017.