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Challenging a trade remedies decision

Daniel Merlo
12/10/2021
In this third article on trade remedies, we consider how interested parties may challenge a decision made by the Trade Remedies Authority (TRA) or by the Secretary of State for International Trade. As a reminder, our first in this series provided an introduction to trade remedies and the second, discussed the economic interest test and the public interest test, which are unique to the UK trade remedies regime.
 
The law provides clear mechanisms for parties to challenge the decisions of the TRA and the Secretary of State.

Decisions of the TRA are subject to a mandatory two-stage process: first, interested parties to an investigation must seek a reconsideration of the decision, performed internally by the TRA. Second, if they remain dissatisfied with the reconsidered decision, they can appeal to the Tax and Chancery Chamber of the Upper Tribunal. 

Decisions of the Secretary of State are also appealable to the Upper Tribunal and do not have to be reconsidered first.

The trade remedies legal framework sets out an extensive list of those decisions which may be challenged.

These can be found in the Schedules to The Trade Remedies (Reconsideration and Appeals) (EU Exit) Regulations 2019 SI 2019/910 (the Regulations). In general they are decisions which bring investigations or reviews to an end, including decisions not to initiate new investigations.

As well as the statutory appeals process, the TRA and the Secretary of State remain susceptible to judicial review challenges at the High Court.
 

Reconsiderations


The Regulations set out a light touch framework for the conduct of reconsiderations.  

They require that applications be made within a month and one day of the decision being published, or (if this is a later date) coming into effect, and that they must include the grounds, the outcome sought and explain how the applicant and the decision are eligible for reconsideration. Only interested parties to an investigation may request a reconsideration and only those decisions listed in Schedule 1 of the Regulations may be reconsidered.

The Regulations also contain various procedural provisions which reflect the conduct of an investigation such as the requirement to maintain a public file and how confidential information and information in general is handled. They also provide the TRA with the power to conduct a hearing as part of the reconsideration, and to refer matters of law to the Upper Tribunal, but otherwise provide the TRA with the discretion to conduct a reconsideration in whatever way it considers appropriate in the circumstances. The TRA's guidance provides little further detail and so it appears that reconsiderations will be flexible depending on their individual nature.

Following the outcome of a reconsideration the TRA will issue a 'reconsidered decision' which will either up-hold or vary the original decision. If the original decision was a recommendation to the Secretary of State, then the Secretary of State must accept or reject the reconsidered decision.  

The legislation does not explain the basis on which the Secretary of State will review the reconsidered decision, but any review will be constrained by usual public law principles. Similarly, there are no provisions in the legislation, or any guidance, that explains what will happen if an interested party simultaneously appeals a decision of the Secretary of State and seeks a reconsideration of the underlying recommendation of the TRA. If multiple parties seek a reconsideration of the same decision then the TRA has the power to reconsider them all together.
 

Appeals


Only interested parties have to right to appeal the reconsidered decisions of the TRA listed in Schedule 1 of the Regulations, and original decisions of the Secretary of State listed in Schedule 2.

Appeals are to the Upper Tribunal (TCC), and the Tribunal will apply the same principles as would be applied by a court on an application for judicial review, in other words they will not be 'full merits' appeals. The Upper Tribunal has the power to dismiss the appeal, or to set aside the decision being challenged either in whole or in part, and to refer it back to the TRA or Secretary of State to remedy the error.

The Upper Tribunal will consider the appeal in accordance with the Upper Tribunal Rules which have been amended to contain specific provisions for trade remedies appeals. Appeals must be brought either within one month of the date on which the decision under challenge was published or, if it was not published, the appellant was notified of the decision.

In general the Upper Tribunal will not make an order for costs, and so each party will bear their own costs unless an application for wasted costs is made, or either party has acted unreasonably in the proceedings.
 

As there will often be two appealable decisions for every trade remedies decision - that of the TRA and that of the Secretary of State - how appeals will be structured could be an important strategic decision.

It will be interesting to see how the judges of the Upper Tribunal handle this entirely new area of law, given its highly technical nature, and the deference they will accord to the case law of the Dispute Settlement Body of the WTO.
 

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