On 17 March 2020, the President of the European Council, Charles Michel, and the President of the European Commission (hereinafter, Commission), Ursula von der Leyen, announced further European Union (EU) actions in response to the COVID-19 outbreak. Since the pandemic reached Europe, the EU has adopted a number of trade-related measures, including the issuance of guidelines for national border management, as well as export authorisation requirements. On 14 March 2020, the Commission adopted “Commission Implementing Regulation (EU) 2020/402 of 14 March 2020 making the exportation of certain products subject to the production of an export authorisation”, temporarily restricting exports of “personal protective equipment” to destinations outside of the EU. On 14 April 2020, the Commission announced that it would narrow down export authorisation requirements to protective masks only and extend the geographical and humanitarian exemptions. Governments around the world have been implementing trade-related measures in response to the COVID-19 pandemic, some trade restrictive, but a number of countries have also called for the elimination of export controls and restrictions on essential goods. As the greater implications of the COVID-19 pandemic on trade are still difficult to assess, the emergency measures taken by affected countries already require legal scrutiny. At the same time, it must be noted that, as noted above for the EU measures, measures around the world are subject to change dynamically in view of the evolution of the pandemic.
A recent Resolution adopted by the European Parliament on ‘palm oil and deforestation of rainforests’ included, among its Recommendations, a call to reform the tariff classifications maintained by the World Customs Organization (WCO), so as to recognize sustainable versus unsustainable palm oil. Furthermore, the Resolution called for such a differentiation, at least for products imported into the EU, to be based on yet-to-be-developed sustainability criteria, which the Resolution also outlined and called for. This article explores the potential feasibility of distinguishing tariff classifications based on process-characteristics rather than product-characteristics, while contrasting such approach to non-tariff related measures implemented by major economies (e.g., tying biofuel subsidies to ‘renewability’ in the United States, or to ‘sustainability’ in the European Union). The article also discusses the sustainability criteria outlined and proposed by the European Parliament, as well as their relation to other sustainability criteria present on the world stage, trying to identify the scope, tools and legal ambits through which tariff advantages could be provided to sustainable products in a WTO consistent and non-discriminatory manner.
On 20 June 2019, the European Union’s (EU’s) Delegation to Ukraine submitted a Note Verbale to the Ministry of Foreign Affairs of Ukraine requesting ‘on behalf of the European Union, the establishment of an arbitration panel pursuant to Article 306 of the Association Agreement of 21 March 2014 between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part’. The dispute concerns Ukraine’s export restrictions on timber and unsawn wood of certain species, as well as on unprocessed timber of all species, for a period of ten years. While the restrictions appear to be legally difficult to justify for Ukraine, the more interesting and noteworthy element to this dispute is that it is the first trade dispute that the EU is pursuing under a bilateral preferential trade agreement, even though it relates to disciplines that mirror World Trade Organization (WTO) rules and could as well be pursued in the framework of WTO dispute settlement. The article reviews the case and discusses the significance and the EU’s deliberate choice of dispute settlement within the context of the trade agreement.
Trade law, EU trade law, Trade dispute, International trade dispute settlement, Trade Agreements, Dispute Settlement, Arbitration, WTO Dispute Settlement, Export restrictions, Forum clauses
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