The International Trade Law Review: A New Framework for UK Customs and Trade

I Introduction

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, as a Member State of the European Union (EU) and its predecessors between 1 January 1973 and 31 January 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 will come into operation at the end of the transition period under the UK–EU Withdrawal Agreement on 31 December 2020 (assuming there is no extension to the transition period). On the international front, the chapter reviews UK membership of the World Trade Organization (WTO), 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 has said that it strongly supports a multilateral, rules-based order for international trade law.3 The UK is an original member of the WTO and has been responsible for its own representation there 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 will accede to the plurilateral Government Procurement Agreement as revised and has signalled its intention to participate in a number of subsequent agreements to which it was bound solely by its former EU membership.4

In preparation for pursuing an independent trade policy, the UK submitted draft schedules for rectification for the General Agreement on Tariffs and Trade and the General Agreement on Trade in Services on 24 July 2018. As at 1 February 2020, negotiations were continuing with certain objecting WTO Members in respect of the goods schedule and consultations were continuing with one WTO Member in respect of the services schedule. However, the outcome of these negotiations and consultations will only have prospective effect.5

ii Replacement FTAs

From the end of the transition period under the UK-EU Withdrawal Agreement, the UK will no longer benefit from, or be subject to, EU FTAs. The UK has negotiated 19 replacement FTAs to date, covering 49 states and territories.6 These new FTAs incorporate 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. Two types of modifications are particularly worth highlighting.

Tariff rate quotas

Tariff rate quotas 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.

On its face, 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, with the following characteristics:

a 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. In most cases, this will depend on the UK and the EU making arrangements for customs cooperation.

b 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. In most cases, this will depend on the UK and the EU making arrangements for customs cooperation.

c Continuation of pre-existing third party cumulation. The new FTAs for which the counterparties are parties to the Regional Convention on pan-Euro-Mediterranean preferential rules of origin (the PEM Convention) contain provisions that, for the most part, will permit cumulation among the UK and those parties under the same terms as set out in 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 the Southern African Customs Union and Mozambique, South Korea and Switzerland. In each case, the parties agree to review the relevant provisions before the FTA expires.

Extended cumulation would mean that most businesses exporting goods with EU content from the UK to partner countries would not lose preferential treatment. Because the EU has not negotiated similar extended cumulation with these partner countries – it currently even objects to diagonal cumulation with the UK under 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).

iii Countries with which the UK is not negotiating replacement FTAs

The UK government states that there is continuing engagement on replacement FTAs covering 21 further states.7 This does not include Japan, with which the UK is negotiating a new FTA (see 'Negotiations with other countries', below), nor Andorra, San Marino and Turkey. As the latter three states have customs unions with the EU, the UK will delay negotiations for these until the negotiations with the EU are concluded.

iv Negotiation of new FTAs

Negotiations with the EU

The UK and the EU commenced negotiations on an FTA after the UK withdrew from the EU. It is unclear whether these will be concluded before the end of the transition period; the UK government has publicly ruled out seeking an extension of the transition period. At the time of writing, both sides have publicly stated that progress has been slow.

Although both the UK and the EU are seeking tariff-free, quota-free market access for trade in goods, negotiations have been held up by several issues. Both parties have made draft negotiating texts public, providing insight into areas of convergence and disagreement. Of the many important areas of disagreement, the following are of particular relevance to trade:8

a 'Level Playing Field' provisions. The EU has sought extensive provisions on state aid, competition, state-owned enterprises, taxation, labour, environment and climate change. Although most provide for non-regression from existing common standards, the state aid and competition provisions go further: the EU's state aid proposals would require dynamic alignment of UK law with EU law, a role for the European Commission in enforcing UK law, and the possibility of interim measures being taken by the EU against the UK, while the competition proposals would commit the UK to observing Articles 101 and 102 of the Treaty on the Functioning of the European Union. Because these provisions refer to EU law, the EU further argues that the European Court of Justice should have exclusive jurisdiction over their interpretation. The UK rejects this as inconsistent with its sovereign independence.

b Agreement structure and dispute resolution. The EU has sought a single agreement governing all aspects of the future relationship between the UK and the EU, with the ability to target retaliation for non-compliance with provisions concerning one aspect at another aspect, whereas the UK prefers separate agreements with no cross-retaliation.

Negotiations with other countries

The UK began negotiating FTAs with the United States on 5 May 2020 (both parties have expressed a desire to conclude this agreement by the end of 2020)9 and with Japan on 8 June 2020.10 The UK has also signalled its intention to start FTA negotiations with Australia and New Zealand. In part, these negotiations have been viewed by commentators as a potential stepping stone towards negotiating the UK's accession to the Comprehensive and Progressive Trans-Pacific Partnership (to which both Australia and New Zealand, as well as Japan, are party).11

III Key aspects of the new domestic legal framework for UK trade

i Import duties

The primary legislation governing import duties will be the Taxation (Cross-border Trade) Act 2018 (the Taxation Act). Those conversant with the EU regime will find the UK regime similar.

Chargeable goods (i.e., all goods other than 'domestic goods') that are imported into the UK will normally need to be 'presented' to Her Majesty's Revenue and Customs (HMRC) by way of notification within three hours of their arrival in the UK.12 A number of persons may make this presentation but, given the strict time frame, this is most likely to be done by the carrier.13 If the chargeable goods have not already been declared for a Customs procedure, this must be done within 90 days of their presentation.14 The declaration will be either for the free-circulation procedure15 (which involves the payment of import duty and converts chargeable goods into domestic goods that may freely circulate within the UK) or for a special Customs procedure,16 of which there are five:

a 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;17

b the transit procedure allows goods to be moved from one place to another within the UK without incurring liability to import duty, subject to conditions;18

c the inward processing procedure allows goods to undergo qualified processing in the UK 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 UK 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;19 and

d the authorised use procedure and the temporary admission procedure provide for reduced (potentially nil) duty rates, provided that the goods are used in the UK for a specific use (authorised use procedure) or for a limited period before being exported (temporary admission procedure).20

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).21

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.22 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.23

The amount of the import duty in 'a standard case' will be determined by reference to regulations, known as the customs tariff, made by Her Majesty's Treasury.24 Although these regulations have not yet been made, as at the time of writing, on 19 May 2020 the UK announced the duties that will apply in place of the EU Common External Tariff (the CET) from 1 January 2021. This new UK Global Tariff differs from the CET in several important respects; its overall effect is to simplify and liberalise UK Most Favoured Nation duties:25

a import duties will be eliminated for a wide range of goods, including:

• goods currently subject to duties of less than 2 per cent (nuisance duties);

• goods not produced (or produced in minimal quantities) in the UK;

• certain 'key inputs to production'; and

• certain 'green' goods.

As a result, the number of products that will not be charged import duty will increase from 27 per cent to 47 per cent;

b each remaining ad valorem duty will be rounded down to the nearest tariff band. The bands will be 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;

c specific duties (including specific components of compound duties) will be denominated in pounds sterling rather than euros (the conversion rate used is the average exchange rate for the past five years);

d agricultural duties will be 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 will be reduced; and the number of seasonal duties will be reduced for some products that retain those duties;

• the Entry Price System and Variable Import Duty (which vary duties for fresh fruit and vegetables and for cereals, respectively, based on price) will be removed; and

• the Meursing table, which sets additional duties for 'composite agrigoods' based on the combination of their percentage mass of each of milk fat, milk protein, starch/glucose and sucrose/isoglucose/invert sugar, will be removed; and

e an autonomous tariff rata quota of zero per cent for 260,000 tonnes of raw cane sugar will be introduced.

Import duty may be adjusted from the standard case under certain circumstances:

a the import is covered by a free trade agreement or a trade preference scheme for eligible developing countries;

b duties have been temporarily suspended;

c anti-dumping or countervailing duties or safeguards or special agricultural safeguards have been imposed; and

d the UK employs authorised retaliation in international trade disputes.26

Her Majesty's Treasury may also provide for general reliefs.27

The UK has stated its intention to maintain trade preference schemes for developing countries equivalent to those operated by the EU.28 The continued 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.29

ii Imposition of anti-dumping and countervailing duties

The Trade Bill 2019-21, when passed, will establish the Trade Remedies Authority (TRA).30 The TRA will be a technocratic body responsible for conducting anti-dumping and countervailing duty investigations as set out under the Taxation Act and subordinate legislation. The TRA will make 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 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.31 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.32 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.33 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.34

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:35

a 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;36 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 territories.37 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;

b the injury is more than negligible; and

c 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;38 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.39

However, a subsidisation investigation may not commence before the TRA has invited the relevant foreign countries or territories to participate in consultations.40

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 (in respect of dumping investigations) notifying the relevant governments. The full text of the application must be sent to the relevant government and, if practicable, the overseas exporters known to the TRA.41

Conduct of investigations

The TRA must set aside 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 contributors who do so, 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.42

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 will not be 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'.43 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.44 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.45

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.46

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:

a 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;

b the likely impact on particular geographical areas and groups in the UK; and

c 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.47

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.48

Challenging decisions

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.49

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.50

Rolling over existing EU measures

Following industry consultations, the UK decided to undertake 'transition reviews' for 44 of 107 EU trade defence measures with a view to them being maintained after the transition period ends; two reviews have commenced.51


1 Charlotte Morgan is a partner and Samuel Coldicutt is a managing associate at Linklaters. With thanks to Lucy Fergusson, Lorand Bartels, Bogdan Evtimov and Imogen Ormerod of Linklaters for their comments. All websites cited were last accessed on 10 June 2020.

2 Figures extracted from the UK Office of National Statistics international trade total trade time series, available at

4 These are the Trade Facilitation Agreement, amendments to the Agreement on Trade-Related Aspects of Intellectual Property Rights, amendments to the Agreement on Trade in Civil Aircraft and the two ministerial declarations commonly known as the Information Technology Agreements I and II. See WT/GC/206.

5 See WT/GC/206.

6 Antigua and Barbuda, the Bahamas, Barbados, Belize, Botswana, Chile, Colombia, Costa Rica, Dominica, the Dominican Republic, El Salvador, Ecuador, eSwatini, the Faroe Islands, Fiji, Georgia, Grenada, Guatemala, Guyana, Honduras, Iceland, Israel, Jamaica, Jordan, Kosovo, Lebanon, Lesotho, Liechtenstein, Madagascar, Mauritius, Morocco, Mozambique, Namibia, Nicaragua, Norway, Palestine, Panama, Papua New Guinea, Peru, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, the Seychelles, South Africa, South Korea, Switzerland, Trinidad and Tobago, Tunisia and Zimbabwe. See"> for the texts of these FTAs.

7 Albania, Algeria, Bosnia and Herzegovina, Burundi, Cameroon, Canada, Côte d'Ivoire, Egypt, Ghana, Kenya, Mexico, Moldova, Montenegro, North Macedonia, Rwanda, Serbia, Singapore, South Sudan, Tanzania, Uganda and Ukraine. See"> for the status of these negotiations.

12 On presentation of goods, see Section 34 and Paragraph 1(1) of Schedule 1 to the Taxation (Cross-border Trade) Act 2018 [Taxation Act] and Part 2 of The Customs (Import Duty) (EU Exit) Regulations 2018 [the IDR]. On the definition of chargeable goods, see Taxation Act, Sections 2 and 33.

13 Those entitled to present goods are listed at Regulation 4 of the IDR.

14 Taxation Act, Paragraph 1(1) of Schedule 1. On making Customs declarations before presentation, see id., at Paragraph 3 of Schedule 1.

15 id., at Sections 4(1) and 33.

16 id., at Section 3, Paragraphs (3) and (4).

17 id., at Section 4(2) of and Part 2 of Schedule 2. Further provisions as to all the special procedures may be found in The Customs (Special Procedures and Outward Processing) (EU Exit) Regulations 2018. There have been no free zones in the UK since 2012, although the government stated its intention to introduce up to 10 and launched consultations on its proposal to do so on 10 February 2020.

18 id., at Section 4(2) of and Part 3 of Schedule 2.

19 id., at Section 4(2) of and Part 4 of Schedule 2.

20 id., at Section 4(4) of and Parts 5 and 6 of Schedule 2.

21 id., at Paragraph 2 of Schedule 1 and IDR, Regulations 15 and 80. Note that there are limited exceptions to the requirement for a UK establishment.

22 id., at Section 4, Paragraphs (1) and (4). Liability to import duty will also be incurred under certain other circumstances (e.g., where the declarant breaches requirements relating to special procedures).

23 id., at Section 6.

24 id., at Sections 7 and 8.

25 The following information is based on Public Consultation: MFN Tariff Policy – The UK Global Tariff, Government Response & Policy, published by the Department for International Trade [DIT], 19 May 2020.

26 Taxation Act, Sections 7 and 9 to 15.

27 id., at Section 19.

29 Public Consultation: MFN Tariff Policy – The UK Global Tariff, Government Response & Policy, published by DIT, 19 May 2020, p. 21.

30 The Trade Bill 2019-21 may be amended before enactment – the text as introduced to Parliament can be found at">

31 Taxation Act, Paragraph 9(1)(a) of Schedule 4. Note that in 'exceptional circumstances', the Secretary of State for International Trade may also apply to initiate an investigation.

32 The Trade Remedies (Dumping and Subsidisation) (EU Exit) Regulations 2019 [DSR], Regulation 52(2).

33 WTO Anti-Dumping Agreement [ADA], Article 5.4, and Subsidies and Countervailing Measures Agreement [SCMA], Article 11.4.

34 DSR, Regulation 51.

35 Taxation Act, Paragraphs 9(5) and 9(6) of Schedule 4.

36 DSR, Regulation 4 and ADA, Article 5.8.

37 DSR, Regulation 5.

38 DSR, Regulation 2 and ADA, Article 5.8.

39 DSR, Regulation 2 and SCMA, Article 11.9.

40 Taxation Act, Paragraph 9(6)(b) of Schedule 4.

41 id., at Paragraphs 9(5) and 9(6) of Schedule 4.

42 On the registration period and issuing questionnaires in general, see DSR, Regulation 54. On sampling, see DSR, Regulations 56 (in respect of dumping investigations) and 57 (in respect of subsidisation investigations). On verification visits and hearings, see DSR, Regulations 58, 59 and 61.

43 DSR, Regulation 7.

44 Taxation Act, Paragraphs 11(3), 11(4) and 11(5) of Schedule 4.

45 id., at Paragraph 11(5) of Schedule 4 and DSR, Regulation 62.

46 id., at Paragraphs 13, 17 and 23 of Schedule 4. On the lesser duty basis, see id., at Paragraph 18(6) of Schedule 4.

47 id., at Paragraph 25 of Schedule 4.

48 id., at Paragraphs 15 and 20 of Schedule 4.

49 The Trade Remedies (Reconsideration and Appeals) (EU Exit) Regulations 2019, Regulations 9 to 13.

50 id., at Part 3.

51 For the decision to proceed with transition reviews, see
name-of-measure. For the status of transition reviews, see">

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