Background: Brian Murphy has just wrapped up a decorated twenty-five-year career in the government, which included five years in the Marine Corps, followed by twenty years in the FBI. Brian’s career in the government recently concluded with a stint at the Department of Homeland Security, where he was the Chief Intelligence Officer, Chief Information Sharing Officer, and Chief Counterintelligence Officer for the department. M. Murphy also became the highest-ranking whistleblower in US government history in 2020 when he said he was told to stop discussing the threat of Russian interference in the 2016 Presidential election and to highlight the role of left-wing groups in anti-racism protests. All of these experiences provide him with a unique view about the intersection of national security and international trade issues.
{"title":"Interview: Interview of Brian Murphy, Former Chief of Intelligence, Department of Homeland Security","authors":"Laura Fraedrich","doi":"10.54648/gtcj2022019","DOIUrl":"https://doi.org/10.54648/gtcj2022019","url":null,"abstract":"Background: Brian Murphy has just wrapped up a decorated twenty-five-year career in the government, which included five years in the Marine Corps, followed by twenty years in the FBI. Brian’s career in the government recently concluded with a stint at the Department of Homeland Security, where he was the Chief Intelligence Officer, Chief Information Sharing Officer, and Chief Counterintelligence Officer for the department. M. Murphy also became the highest-ranking whistleblower in US government history in 2020 when he said he was told to stop discussing the threat of Russian interference in the 2016 Presidential election and to highlight the role of left-wing groups in anti-racism protests. All of these experiences provide him with a unique view about the intersection of national security and international trade issues.","PeriodicalId":12728,"journal":{"name":"Global Trade and Customs Journal","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49108873","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The negotiation work of the WTO is in the grip of the requirement that decision-making take place by consensus among all 164 members. At the same time, the shift in the political economy of trade negotiations towards plurilateralism is becoming increasingly evident. This begs the question of the perspectives of joint statement initiatives (JSI) on services domestic regulation, investment facilitation and e-commerce. This article discusses how to give legal effect to the negotiation outcomes in the WTO, with a particular focus on plurilateral initiatives. The need for additional ‘flexibilities’ that expand the ways to include plurilateral outcomes in WTO law is now more urgent than ever. At the same time, if plurilateralism is to be effective and sustainable, it must be linked to multilateral principles and norms. WTO, plurilateral outcomes, joint statement initiatives, trade rules, consensus
{"title":"‘Shaken Not Stirred’: WTO as a Ground for Plurilateral Initiatives","authors":"O. Biryukova","doi":"10.54648/gtcj2022016","DOIUrl":"https://doi.org/10.54648/gtcj2022016","url":null,"abstract":"The negotiation work of the WTO is in the grip of the requirement that decision-making take place by consensus among all 164 members. At the same time, the shift in the political economy of trade negotiations towards plurilateralism is becoming increasingly evident. This begs the question of the perspectives of joint statement initiatives (JSI) on services domestic regulation, investment facilitation and e-commerce. This article discusses how to give legal effect to the negotiation outcomes in the WTO, with a particular focus on plurilateral initiatives. The need for additional ‘flexibilities’ that expand the ways to include plurilateral outcomes in WTO law is now more urgent than ever. At the same time, if plurilateralism is to be effective and sustainable, it must be linked to multilateral principles and norms.\u0000WTO, plurilateral outcomes, joint statement initiatives, trade rules, consensus","PeriodicalId":12728,"journal":{"name":"Global Trade and Customs Journal","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47920828","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
According to general opinion in Germany and further EU Member States, all questions regarding pre-tax deduction of import VAT by a logistics service provider (‘LSP’) have been settled: there is no right to deduction without power of disposition at the time of the import. As LSPs typically become debtor of the import VAT, but do not dispose of the imported goods, they have been excluded from pre-tax deduction in the past. Besides causing costs for involved companies in millions of Euro, this clearly violates the principle of neutrality as one of the core principles of the EU VAT directive, still no steps have been taken to rectify the situation. The requirement of power of disposition is mainly derived from the cost formula test the Court of Justice of the European Union ECJ has been traditionally applying to VAT cases. In its recent Weindel-order of 10 October 2020, C- 621/19, the ECJ has – for the first time – amended the cost formula with regard to import VAT specific aspects. This article investigates whether in the light of Weindel, power of disposition can still be made an obligatory requirement of the right to pre-tax deduction of import VAT. Value added tax, VAT, pre-tax deduction, indirect representative, logistics service provider, cost-formula test, principle of neutrality of VAT, Council Directive 2006/112/EC, VAT-directive, upstream import cost, power of disposition
{"title":"The Logistics Service Providers’ Pre-tax Deduction of Import VAT Is Still a Pipe Dream and the Recent ECJ Decision Hasn’t Changed That: Or Has It?","authors":"Jöran Gesinn","doi":"10.54648/gtcj2022017","DOIUrl":"https://doi.org/10.54648/gtcj2022017","url":null,"abstract":"According to general opinion in Germany and further EU Member States, all questions regarding pre-tax deduction of import VAT by a logistics service provider (‘LSP’) have been settled: there is no right to deduction without power of disposition at the time of the import. As LSPs typically become debtor of the import VAT, but do not dispose of the imported goods, they have been excluded from pre-tax deduction in the past. Besides causing costs for involved companies in millions of Euro, this clearly violates the principle of neutrality as one of the core principles of the EU VAT directive, still no steps have been taken to rectify the situation. The requirement of power of disposition is mainly derived from the cost formula test the Court of Justice of the European Union ECJ has been traditionally applying to VAT cases. In its recent Weindel-order of 10 October 2020, C- 621/19, the ECJ has – for the first time – amended the cost formula with regard to import VAT specific aspects. This article investigates whether in the light of Weindel, power of disposition can still be made an obligatory requirement of the right to pre-tax deduction of import VAT.\u0000Value added tax, VAT, pre-tax deduction, indirect representative, logistics service provider, cost-formula test, principle of neutrality of VAT, Council Directive 2006/112/EC, VAT-directive, upstream import cost, power of disposition","PeriodicalId":12728,"journal":{"name":"Global Trade and Customs Journal","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45514091","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 9 September 2021, Regulation (EU) no. 821/2021, of the European Parliament and of the Council, of 20 May 2021, relating to the control of exports, brokering, technical assistance, transit and transfer of dual-use items, i.e., all those products, including software and technologies, which can be used for both civil and military purposes, came into effect. The new Regulation has as its main objective (see in particular ‘Whereas (5)’ in the preamble to the Regulation) that of making the common system for the control of exports of dual-use items even more effective, to ensure compliance with the commitments and responsibilities of the Member States and of the Union, particularly in the fields of non-proliferation, regional peace, security and stability and respect for human rights and international humanitarian law. For these purposes, the definitions of ‘dual-use products’ and ‘exporter’ have been expanded and, moreover, a specific Article (8) is dedicated to the issue of technical assistance, which in the previous Regulation (428/2009) was covered exclusively in certain explanatory notes in the Annexes. The changes in this Regulation also concern the authorizations for the export from the European Union of ‘dual-use’ goods: a whole new ‘large project authorization’ (Article 2 (14) of the Regulation) has been created, which consists of an individual export authorization or a global export authorization granted to one specific exporter for a type or category of dual-use items, which may be valid for exports to one or more specific end-users in one or more specified third countries for the purpose of a specified large-scale project. This permission can relate to intra-group technology transfers and cryptography. Also with regard to the procedures for the export of dual-use items, the European Union decided to make use of the ‘Internal Compliance Programmes’, already present in other legislative sectors of the Union. Dual use export controls, authorizations, civil, military, technologies, compliance, exportation, controls, Regulation
{"title":"Dual Use Items: A Whole New Export Regulation in the European Union","authors":"Alessandro Fruscione","doi":"10.54648/gtcj2022018","DOIUrl":"https://doi.org/10.54648/gtcj2022018","url":null,"abstract":"On 9 September 2021, Regulation (EU) no. 821/2021, of the European Parliament and of the Council, of 20 May 2021, relating to the control of exports, brokering, technical assistance, transit and transfer of dual-use items, i.e., all those products, including software and technologies, which can be used for both civil and military purposes, came into effect. The new Regulation has as its main objective (see in particular ‘Whereas (5)’ in the preamble to the Regulation) that of making the common system for the control of exports of dual-use items even more effective, to ensure compliance with the commitments and responsibilities of the Member States and of the Union, particularly in the fields of non-proliferation, regional peace, security and stability and respect for human rights and international humanitarian law. For these purposes, the definitions of ‘dual-use products’ and ‘exporter’ have been expanded and, moreover, a specific Article (8) is dedicated to the issue of technical assistance, which in the previous Regulation (428/2009) was covered exclusively in certain explanatory notes in the Annexes. The changes in this Regulation also concern the authorizations for the export from the European Union of ‘dual-use’ goods: a whole new ‘large project authorization’ (Article 2 (14) of the Regulation) has been created, which consists of an individual export authorization or a global export authorization granted to one specific exporter for a type or category of dual-use items, which may be valid for exports to one or more specific end-users in one or more specified third countries for the purpose of a specified large-scale project. This permission can relate to intra-group technology transfers and cryptography. Also with regard to the procedures for the export of dual-use items, the European Union decided to make use of the ‘Internal Compliance Programmes’, already present in other legislative sectors of the Union.\u0000Dual use export controls, authorizations, civil, military, technologies, compliance, exportation, controls, Regulation","PeriodicalId":12728,"journal":{"name":"Global Trade and Customs Journal","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48310122","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Value-Added Tax (hereinafter VAT) is due on importation together with customs duties and other import taxes, including assigned taxes. In France, since 1 January 2022, Customs is no longer in charge of the management and collection of import VAT, which has been transferred to the Treasury Department of the French state. VAT is recoverable under the principle of «tax neutrality». The generalization of the import VAT reverse charge in France (Law n°2019-1479 of 28 December 2019 – Article 181) since 2022 appears to be a welcomed simplification. The import VAT reverse charge is one of the four main arrangements for the management of import VAT settled in the VAT Directive (Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax). French Customs considers that certain French taxes no longer follow the VAT regime. However, this rupture point does not come without legal difficulties. VAT, customs, import VAT reverse charge
{"title":"Basics and Practical Overview of VAT Management in the EU: Spotlight on the French Practice a Few Months After the Adoption of the Reverse Charge of VAT on Imports","authors":"Gaspard de Bellescize","doi":"10.54648/gtcj2022024","DOIUrl":"https://doi.org/10.54648/gtcj2022024","url":null,"abstract":"Value-Added Tax (hereinafter VAT) is due on importation together with customs duties and other import taxes, including assigned taxes. In France, since 1 January 2022, Customs is no longer in charge of the management and collection of import VAT, which has been transferred to the Treasury Department of the French state. VAT is recoverable under the principle of «tax neutrality». The generalization of the import VAT reverse charge in France (Law n°2019-1479 of 28 December 2019 – Article 181) since 2022 appears to be a welcomed simplification. The import VAT reverse charge is one of the four main arrangements for the management of import VAT settled in the VAT Directive (Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax). French Customs considers that certain French taxes no longer follow the VAT regime. However, this rupture point does not come without legal difficulties.\u0000VAT, customs, import VAT reverse charge","PeriodicalId":12728,"journal":{"name":"Global Trade and Customs Journal","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44896670","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the international trade environment, basic import issues have always presented challenges for customs compliance because each import issue represents a distinct custom law discipline. For importers into the US, compounding the pre-existing challenges are the enhanced enforcement tools enacted in 2016 under the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), which is now being fully implemented by US Customs and Border Protection. Through self-assessment questions, this article examines how companies may use trade compliance risk assessment to confront these increased customs compliance challenges in a reinvigorated US trade enforcement paradigm. Transaction value, Tariffs, Penalty, EAPA, Country of origin, WRO, Prior Disclosure, Trade compliance, Importer, Risk assessment
{"title":"Meeting the Challenges of Customs Compliance in a Post TFTEA and Reinvigorated Trade Enforcement Environment: Go Beyond by Returning to Basics","authors":"Sandra L. Bell, Amadi Anene","doi":"10.54648/gtcj2022014","DOIUrl":"https://doi.org/10.54648/gtcj2022014","url":null,"abstract":"In the international trade environment, basic import issues have always presented challenges for customs compliance because each import issue represents a distinct custom law discipline. For importers into the US, compounding the pre-existing challenges are the enhanced enforcement tools enacted in 2016 under the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), which is now being fully implemented by US Customs and Border Protection. Through self-assessment questions, this article examines how companies may use trade compliance risk assessment to confront these increased customs compliance challenges in a reinvigorated US trade enforcement paradigm.\u0000Transaction value, Tariffs, Penalty, EAPA, Country of origin, WRO, Prior Disclosure, Trade compliance, Importer, Risk assessment","PeriodicalId":12728,"journal":{"name":"Global Trade and Customs Journal","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45669970","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
TheWTO’s General Agreement on Trade in Services (GATS), which has been in effect since 1995, has been used byWTO Members to facilitate increased growth in trade in services by regulating global transactions on trade in services in line with the specific commitments undertaken by everyWTO Member in the GATS. However, growth in trade in services has been clouded by significant barriers to trade in services that continue to exist in many countries in the form of unintended trade-restrictive measures across most services sectors, obscure regulations, and burdensome regulatory procedures. The successful conclusion of the Reference Paper on services domestic regulation is an effort to reduce these barriers and further stimulate trade in services. WTO, GATS, Services Domestic Regulation, Joint Initiative, Plurilateral Declaration, Negotiated Disciplines, regulatory processes, Reference Paper, barriers to services trade, predictability and transparency
{"title":"An Overview of the WTO’s Plurilateral Agreement on Services Domestic Regulation","authors":"Kadijatu Zainab Bangura, Abraham Zaqi Kromah","doi":"10.54648/gtcj2022023","DOIUrl":"https://doi.org/10.54648/gtcj2022023","url":null,"abstract":"TheWTO’s General Agreement on Trade in Services (GATS), which has been in effect since 1995, has been used byWTO Members to facilitate increased growth in trade in services by regulating global transactions on trade in services in line with the specific commitments undertaken by everyWTO Member in the GATS. However, growth in trade in services has been clouded by significant barriers to trade in services that continue to exist in many countries in the form of unintended trade-restrictive measures across most services sectors, obscure regulations, and burdensome regulatory procedures. The successful conclusion of the Reference Paper on services domestic regulation is an effort to reduce these barriers and further stimulate trade in services.\u0000WTO, GATS, Services Domestic Regulation, Joint Initiative, Plurilateral Declaration, Negotiated Disciplines, regulatory processes, Reference Paper, barriers to services trade, predictability and transparency","PeriodicalId":12728,"journal":{"name":"Global Trade and Customs Journal","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44262158","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Soft laws are created for many reasons to serve various purposes. This article focuses on acts of soft law that are adopted to facilitate the process of applying hard law (or complying with it) and to standardize the understanding of international agreements. In the field of customs law, one can point, for instance, to opinions adopted by the World Customs Organisation. The Organisation for Economic Co-operation and Development (the OECD) Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations and the Commentary to the OECD Model Tax Convention on Income and on Capital are globally recognized examples of the tax arena. The side effects of the application of acts of soft law in the fields of tax law and customs law are presented and analysed. Interpretative problems are observed at the international level, whereas clear-cut side effects often occur domestically. customs classification – World Customs Organisation (WCO) – double taxation conventions – Organisation for Economic Co-operation and Development (the OECD) – Model OECD – OECD Transfer Pricing Guidelines – OECD Commentary – interpretation
{"title":"Is Soft Law Making Hard Law Too Hard?","authors":"Krzysztof Lasiński-Sulecki","doi":"10.54648/gtcj2022022","DOIUrl":"https://doi.org/10.54648/gtcj2022022","url":null,"abstract":"Soft laws are created for many reasons to serve various purposes. This article focuses on acts of soft law that are adopted to facilitate the process of applying hard law (or complying with it) and to standardize the understanding of international agreements. In the field of customs law, one can point, for instance, to opinions adopted by the World Customs Organisation. The Organisation for Economic Co-operation and Development (the OECD) Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations and the Commentary to the OECD Model Tax Convention on Income and on Capital are globally recognized examples of the tax arena. The side effects of the application of acts of soft law in the fields of tax law and customs law are presented and analysed. Interpretative problems are observed at the international level, whereas clear-cut side effects often occur domestically.\u0000customs classification – World Customs Organisation (WCO) – double taxation conventions – Organisation for Economic Co-operation and Development (the OECD) – Model OECD – OECD Transfer Pricing Guidelines – OECD Commentary – interpretation","PeriodicalId":12728,"journal":{"name":"Global Trade and Customs Journal","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43261955","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the past year, due to the Coronavirus disease 2019 (COVID-19), sea freight prices and domestic transportation costs have risen sharply, an increase that has not been seen for many years. This leads to a change in customs valuation. In most countries worldwide, collection of duties is based on the cost, insurance and freight (CIF) value of goods, there, any increase in transportation costs, lead to additional collection of import duties. The United States, Canada, Australia, New Zealand and South Africa, however, impose duties on the free on board (FOB) value of goods, meaning, therefore, transport costs changes do not lead to additional import duties in those countries. COVID-19 effects on transportation costs are a global issue and may last for a long time. Therefore, governments that impose customs on the CIF value, should consider waiving the COVID-19 extra shipping costs, for customs valuation purposes, until we are back to a ‘normal’ period. customs, valuation, transport, Incoterms, CIF, FOB, covid19, Israel
{"title":"The COVID-19 Pandemics’ Impact on Customs Valuation and Import Duties: An Israel Perspective, and a Wider Comparison","authors":"Omer Wagner","doi":"10.54648/gtcj2022015","DOIUrl":"https://doi.org/10.54648/gtcj2022015","url":null,"abstract":"In the past year, due to the Coronavirus disease 2019 (COVID-19), sea freight prices and domestic transportation costs have risen sharply, an increase that has not been seen for many years. This leads to a change in customs valuation. In most countries worldwide, collection of duties is based on the cost, insurance and freight (CIF) value of goods, there, any increase in transportation costs, lead to additional collection of import duties. The United States, Canada, Australia, New Zealand and South Africa, however, impose duties on the free on board (FOB) value of goods, meaning, therefore, transport costs changes do not lead to additional import duties in those countries. COVID-19 effects on transportation costs are a global issue and may last for a long time. Therefore, governments that impose customs on the CIF value, should consider waiving the COVID-19 extra shipping costs, for customs valuation purposes, until we are back to a ‘normal’ period.\u0000customs, valuation, transport, Incoterms, CIF, FOB, covid19, Israel","PeriodicalId":12728,"journal":{"name":"Global Trade and Customs Journal","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46898714","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 30 December 2020, after eight months of negotiations, the European Union (EU) and the United Kingdom (UK) signed the EU-UK Trade and Cooperation Agreement (TCA). The TCA governs their relationship after Brexit and was provisionally applied from 1 January 2021 until its entry into force on 1 May 2021. It provides for inter alia free trade in goods, limited mutual market access in services, and investment protection. Given the ‘radical shift’ in investment protection at EU level, which materialized in its most recent free trade agreements, foreign investors may have expected clarity as to what type of investment protection would apply post Brexit. This article analyses the investment provisions of the TCA and argues that the UK has embraced the EU ‘new-generation’ approach to international investment protection, by preserving the right to regulate and redefining investment standards and dispute settlement mechanisms. Nevertheless, the TCA remains silent regarding bilateral investment treaties (BITs) between the UK and Member States (former intra-EU BITs), which contain old-generation investment provisions. While some have argued that these BITs may provide the UK with a distinct advantage to structure investments in the EU, their validity remains uncertain, which may potentially generate friction in the EU-UK relations. Brexit, international investment arbitration, WTO dispute settlement system, state-to-state disputes
{"title":"The EU-UK Investment Regime After Brexit: In Search of an Equilibrium?","authors":"Noah A. Barr","doi":"10.54648/gtcj2022020","DOIUrl":"https://doi.org/10.54648/gtcj2022020","url":null,"abstract":"On 30 December 2020, after eight months of negotiations, the European Union (EU) and the United Kingdom (UK) signed the EU-UK Trade and Cooperation Agreement (TCA). The TCA governs their relationship after Brexit and was provisionally applied from 1 January 2021 until its entry into force on 1 May 2021. It provides for inter alia free trade in goods, limited mutual market access in services, and investment protection. Given the ‘radical shift’ in investment protection at EU level, which materialized in its most recent free trade agreements, foreign investors may have expected clarity as to what type of investment protection would apply post Brexit. This article analyses the investment provisions of the TCA and argues that the UK has embraced the EU ‘new-generation’ approach to international investment protection, by preserving the right to regulate and redefining investment standards and dispute settlement mechanisms. Nevertheless, the TCA remains silent regarding bilateral investment treaties (BITs) between the UK and Member States (former intra-EU BITs), which contain old-generation investment provisions. While some have argued that these BITs may provide the UK with a distinct advantage to structure investments in the EU, their validity remains uncertain, which may potentially generate friction in the EU-UK relations.\u0000Brexit, international investment arbitration, WTO dispute settlement system, state-to-state disputes","PeriodicalId":12728,"journal":{"name":"Global Trade and Customs Journal","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45365426","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：