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On 1 June 2021, the UK launched the Trade Remedies Authority (TRA) with a remit to lead the UK's new independent, post-Brexit, trade remedies regime. This regime represents a significant shift for national trade policy, with the UK now able to (i) impose its own trade remedies; and (ii) challenge foreign tariffs directly through the World Trade Organization (WTO), separate from the EU.

In this briefing, we have summarised the key considerations for businesses in respect of the legal framework and process for the UK's new regime, including the following takeaways:

The WTO provides the legal and institutional framework for governing the rules of trade between its member countries as well as providing a global forum for settling disputes between its members. Under the basic principles of the WTO's agreements1, countries cannot discriminate between their trading partners. The principle of non-discrimination requires WTO Members to (i) grant the same privileges and concessions to one nation as to all WTO members countries (absent a free trade agreement) ("Most-Favoured-Nation Treatment"); and (ii) accord the same treatment to both domestic and imported goods and services (once they have entered the domestic market) ("National Treatment").

Trade remedies are effectively an exception to these principles - serving as an instrument that allows governments to take remedial action against imports which are causing injury (or threat thereof) to the domestic industry in the context of abnormal market practices and conditions. Key trade remedy measures may be summarised as follows:

Post-Brexit, the UK remains a member of the WTO and its trade remedies policy continues to be governed by the WTO framework - including the three types of trade remedies that it can implement: (i) AD; (ii) CVD; and (iii) safeguard measures. At national level, the UK has introduced the following new legislation to establish its own domestic regime:

There are three types of investigation that the TRA may carry out, specifically: (i) investigation of applications for new UK trade remedies to be applied; (ii) transition reviews for existing EU measures to be carried across to the UK or terminated; and (iii) reviews of other existing measures.

Criteria for applying for investigation

For any type of investigation, a UK trade remedies application must meet all of the following requirements:

What has happened so far?

Example of UK investigation into dumping of aluminum extrusions from China

The TRA issued a Notice of Initiation on 22 June 2021 of an investigation into alleged dumping of aluminium extrusions imported into the UK from the People's Republic of China following an application lodged by a UK aluminium producer, made on behalf of the UK industry in aluminium extrusions. This represents the first UK trade remedies investigation initiated, following the launch of the TRA, in response to an application from a UK industry.

The goods subject to the investigation are aluminium extrusions constituting items such as aluminium bars, rods, tubes and pipes. The investigation will cover the cover the 12-month period of investigation (POI) from Q4 2019 to Q3 2020, with the 36-month period preceding the POI considered to be the injury period.

Following the deadline for submissions from interested parties on 6 July, the TRA received four submissions from UK aluminium producers, 22 submissions from Chinese exporters, 16 submissions from third-party contributors (including the Chinese Ministry of Commerce), and three submissions from UK importers.

The TRA will conduct the investigation over the course of the next year with a final determination expected to be made in June 2022.

UK transition reviews of existing EU trade remedy measures

As part of the Brexit transition process, the UK Government also mapped across 43 existing trade remedies measures that were in place under the EU regime. The TRA has been conducting an ongoing transition review into each of those measures in order to determine if such measures are still fit for purpose in the UK.

The transition reviews commenced in February 2020 and 12 live reviews are currently taking place, covering imports relating to aluminum, biodiesel, glass fiber and steel. Most recently, on 7 October, the TRA initiated a transition review on the import of aluminum road wheels from China. The full list of active reviews can be found here.

Why make a trade remedies application

For UK businesses, the new regime presents a key opportunity to advocate new approaches to UK tariffs at a time when the UK - following its departure from the EU - is at a critical juncture in determining its trading relationship with the rest of the world.

In particular trade remedies may offer the opportunity to:

To construct a compelling case (taking (a) as an example), the applicant needs to be able to provide a range of evidence illustrating the adverse effects on its business and the wider impact on the domestic UK industry. Throughout this process, robust data should be provided to justify claims - this means including prices, sales volumes, profit margins, cost data, capacity utilization and various other metrics. Additionally, a case will be all the more credible where the applicant can deploy data based on independent third party sources.

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