News

Australian Antidumping Commission makes a No Dumping Finding for One Exporter of A4 Paper but continues its WTO inconsistent approach to "particular market situation" and "records reasonably reflecting cost"

17 March 2017  Williams Trade Law has been working with Roger Simpson & Associates Pty Ltd representing 3 Indonesian exporters in an investigation by the Australian Anti-Dumpipng Commissioni into alleged dumping of A4 paper from Brazil, China, Indonesia and Thailand and subsidization of imports of A4 paper by China and Indonesia.  Following submissions of Roger Simpson & Associates Pty Ltd on the calculation of dumping margins, the Commission found that one of the 3 exporters, PT Pabrik Kertas Tjiwi Kimia Tbk had not dumped and terminated the investigation with respect to that exporter (in Termination Report TER341). 

 

Williams Trade Law made detailed submissions alleging errors of law in the Commission's Statement of Essential Facts in relation to determinations about "particular market situation" and "records reasonably reflecting costs" (Document 146 on the public file for the Investigation on A4 Paper).  Unfortunately, the Termination Report (TER341) indicates that the Commission is continuing the approach of (a) finding that there is a market situation rendering domestic prices unsuitable for determining normal values in the absence of any evidence of any market situation which affects the comparison betwteen normal value and export price; and (b) departing from using the records of the exporter in determining cost of a major input in the constructed cost for the reason that the amounts in the exporters records diverge from what the cost would be in the absence of certain governmental interventions.  We continue to maintain that both of these aspects of the Commission's approach are inconsistent with the WTO Agreement on Anti-Dumping. In particular, the recent WTO case in EU- ADD on Biodiesel from Argentina ruled that Article 2.2.1.1 only permits authorities to depart from using the records of the exporter to determine constructed cost when the records do not reflect what the exporter actually spent.  The approach of the Commission appears to be in breach of Article 2.2.1.1 in the same way that the EU was in breach in the abovementioned case.  We await the decision of the Minister to accept or reject the recommendation of the Commission. 

 

The case brings to a head the controversy over the ways in which Australia has been inflating dumping margins by reference to external benchmark costs.  In particular, in relation to Chinese exporters, while Australia has not sought to justify using surrogate prices to determining normal values on the basis that China is a non-market economy, Australia has still been able to inflate the dumping margins by adopting these approaches to "market situation" and "reasonably reflect costs"  to justify using benchmark prices in constructed normal values.  

 

This use of the same techniques against Indonesian exporters of A4 paper makes this A4 paper case a significant test of the Australian approach.

 

Teaching Law of the ASEAN Economic Community

2017  As part of the new LLM course of the Law School of Charles Darwin University, Brett Williams commenced teaching  a course on the Law of the ASEAN Economic Community in 1st semester, 2017.  He and Charles Darwin University have produced a sets of recorded lectures.  The course is taught fully on-line so students located anywhere in the world can enrol.  This is the first course in the Law of the ASEAN Economic Community offered by an Australian university and it is expected that it will be offered every year.  The course deals with the rules of the ASEAN economic community dealing with trade in goods, trade in services, investment, movement of people and intellectual property. 

 

Teaching World Trade Organization Law at the University of Sydney

2016 & 2017  Brett Williams has been re-engaged to teach World Trade Organization law at the Faculty of Law of the University of Sydney in 2017 having first taught the subject for that institution in 2001.  In 2016, he taught WTO law in the LLM program in first semesteer and in the LLB/JD program in second semester. In 2016, the students made a special study of the WTO rules for cross-retaliation.

 

Brett Williams in Kuala Lumpur presenting on the Trans Pacific Partnership Agreement

March - June 2016  There was considerable interest in the TPP at the annual meeting of the Inter-Pacific Bar Association in Kuala Lumpur in April.  Brett Williams was pleased to join a panel of Paolo Vergano of Fratini Vergano, Professor Raj Bhala of University of Kansas, Bruce Aitken of Aitken Berlin, Jeffrey Snyder of Crowell & Moring, and Rafael Vergara of Carey y Cia Estudo all delivering presentations on 'Resolution of Trade Disputes in TPP and Other FTAs'.  On Monday 18 April, he was glad to visit the International Islamic University of Malaysia to give a lecture on "Overview of the TPP".   On 17 March, Brett Williams joined Professor Bhala, and Professor Luke Nottage at a seminar on "The TPP Objectively" convened by the University of Sydney .  On 22 June, Brett Williams presented a seminar on the TPP for the International Law Section of the Law Council of Australia.  All of the presentation slides are on the Papers and Materials page of this website.      

 

Congratulations to the Moot team of the University of New South Wales, finalists in the ELSA moot court competition on WTO Law

Sept 2015 to June 2016  The team from UNSW, under the coaching of Brett Williams, performed well in this years' WTO moot competition on a problem about subsidies supporting renewable energy (a problem bearing similarities to the facts of the Canada Feed-In-Tarrifs case).  The team was the runner-up in the South Asia division of the Asia Pacific Round in Singapore in March making the final oral round in Geneva in June where they performed well.    

 

 

Teaching on Cartels and Primary Boycotts at the University of Sydney Law School

March 2016  Brett Williams taught classes on cartels and primary boycotts, in particular the determination of the existence of a contract, arrangment or understanding.  He has taught or co-taught the Undergraduate unit in Competition Law at the University of Sydney Law School since 2001.  

 

Brett Williams has been delighted to collaborate with R.V Anuradha of Clarus Law Associates, New Delhi to write their chapter comparing trade law in India and Australia

 

October 2015 ? Brett Williams has been delighted to collaborate with R.V Anuradha of Clarus Law Associates, New Delhi to write their chapter "Regulation of International Trade in Goods and Services" which appears in the book by Shaun Starr (editor), Australia and India: A Comparative Overview of the Law and Legal Practice, the book being launched in New Delhi on 26 October 2015.  The chapter describes aspects of the regulation of trade in both Australian law and Indian law, including the FTAs of each country, their customs law, trade remedies law, and law affecting supply by foreign service suppliers.  The book is the first to compare Australian and Indian law and comes at a time of rising interest in the commercial relationship between the two countries.  For details of all of the chapters, see the website of the publisher Universal Law Publishing, New Delhi.      

 

Teaching World Trade Organization Law at the University of Sydney

 

August  2015 - October 2015  Brett Williams continues to teach World Trade Organization law at the Faculty of Law of the University of Sydney, having first taught the subject for that institution in 2001.  This semester, the course featured an in-depth study of the general exceptions in GATT Arrticle XX and the recent case law under the Agreement on Technical Barriers to Trade.  He has been engaged to teach WTO law again in 2016, in the LLM program in first semesteer and in the LLB/JD program in second semester.

 

 

The Slow but Steady Progress with Liberalization of International Trade in legal Services

 

August  2015  The Uruguay Round achievement with respect to trade in legal services was modest at the commencement of the WTO on1 January 1995. Since then there has been a gradual warming around the world to the idea that two tier regulation can be applied to the regulation of the legal profession: with full licensing for practice of host country law and limited licensing for the practice of foreign and international law. In a lecture in Adelaide to the Law Society of South Australia on 31 August 2014, Brett Williams described in particular the role of Australia in helping to drive the gradual acceptance of two tier regulation of the legal profession through cooperation with initiatives of the International Bar Association, through proposals in WTO negotiations, participation in negotiating terms of accession of new members of the WTO and through bilateral and regional trade agreements. A copy of the presentation on Australia and the Opening of Markets for Legal Services: A Look Back and a Look Forward is available on the Papers and Materials page of this website.

 

 

The Requirements for Acceding to the ASEAN Economic Community

 

May & July 2015  Have the requirements for acceding to the ASEAN Economic Community merged with potential requirements for acceding to the proposed Regional Comprehensive Economic Partnership Agreement? What treaties does a party need to accede to? What scheduled commitments will the other ASEAN members accept? These is among the issues discussed by Brett Williams in a number of presentations on The Challenges for Timor-Leste in Acceding to the ASEAN Economic Community: at the 12th Asian Law Institute Conference at National University of Taiwan on 21-22 May 2015, at the 2015 ILA / ASIL Asia-Pacific Research Forum on Integrating the Asia-Pacific: Why International Law Matters? In Taipei on 25-26 May 2015; at a law after lunch seminar at the Faculty of Law at Martin Luther University in Halle on 9 July 2015; and at the Joint Asian International Economic Law Conference on Regionalism in Asia-Pacific and Beyond: Challenges and Opportunities? in Bali on 20-21 July 2015.  The  presentation is available on the Papers and Materials page of this website.

 

Teaching World Trade Organization Law at the Australian National University  

 

17 - 21 April 2015  Brett Williams was at the Australian National University teaching International Law of World Trade for the third time, having previously taught the unit in 2013 and 2014.  The intensive course is offered in ANU's LLM and Masters of International Law degrees. The course is a comprehensive introduction to the law of the WTO, including its economic and political context.  The course covers the main rules of the GATT, GATS and TRIPS and the dispute settlement system.  This year the course included a particularly thorough study of the national treatment and most favoured nation rules under the GATT.

 

 

The complexities of Movement of Natural Persons obligations under Trade Agreements 

 

20 March 2015  Brett Williams gave a presentation on the Impact of the Korea Australia Free Trade Agreement (KAFTA) and the Japan Australia Economic Partnership Agreement (JAEPA) on Movement of Natural Persons. He was speaking at the Law Council of Australia Migration Law Conference 2015 held at the Park Hyatt in Melbourne. He analysed the obligations on Australia under the KAFTA and the JAEPA affecting the grant of entry and temporary stay visas.

 

 

Presentation on WTO Dispute Settlement Reports adopted in 2014

 

6 February 2015 - Brett Williams spoke about WTO Disputes in 2014 at the Sydney Centre for International Law Year in Review Conference 2015 at the University of Sydney. He discussed the China - Export of Rare Earth case ruling that China's export taxes were not WTO consistent, with it being the third WTO decision to consider the relationship between China's Protocol of Accession and the availability of the exceptions in GATT Article XX. Next, the EC-Seals case offered important, if controversial interpretations on the GATT exception for measures protecting public morals, and on whether the discrimination obligations under GATT involve consideration of whether the discrimination arises from a legitimate regulatory distinction. There were two successful complaints (one by India and one by China) against the United States relating to the issue of double counting with concurrent antidumping duties and countervailing duties. There was also one successful complaint against China finding numerous inadequacies with China?s procedures for imposing antidumping duties and countervailing duties on imports of automobiles from the United States.