Reconsideration of TRA determinations: points for consideration

UK trade remedies are adopted following a determination of the TRA, subject to the possibility that the Secretary of State (SoS) can make the final determination for transition reviews that have been called-in. If interested parties wish to challenge a final determination, there is the possibility to request a reconsideration of the decision. If parties want to legally challenge a determination in the Upper Tribunal, it is necessary to request a reconsideration first.

The law setting out the principal reconsideration provisions is contained in the Trade Remedies (Reconsideration and Appeals)(EU Exit) Regulations 2019.

The reconsideration process is a good idea in principle. One of the advantages of it gives interested parties the possibility to challenge decisions in a lost cost process.

Two reconsiderations of TRA determinations have been requested and initiated so far: steel safeguards and welded tubes.

The TRA has recently published a report to the SoS in the steel safeguards reconsideration. This has been complicated by the fact that the SoS has called-in the reconsideration on steel safeguards. Nevertheless, the TRA has made various findings that were requested by the SoS., one of which included a report on the TRA’s reconsideration analysis up to the point where the SoS called it in. Of course these findings are not a definitive reconsideration decision made by the TRA. However, the report of their likely findings up to the point of the call-in does perhaps provide an indication of what we can expect from a TRA reconsideration.

The TRA accepted 8 applications for reconsideration of the steel safeguards determination. All claims were rejected by the TRA in their initial analysis. Only brief explanations have been provided for these rejections and some of the explanations are merely to restate TRA conclusions made in the original decision. It is perhaps unfair to judge the detail in the explanation in this report. As previously stated, this is not a final reconsideration determination and in the context of a 271 page report it is perhaps understandable that the TRA’s analysis on the reconsideration up until the call-in would be summarised in relatively brief terms. However, taken at face value, the TRA reconsideration analysis suggests that it is imposing a high threshold on the likelihood of overturning any original decision.

Several comments can be made on reconsideration which are worthy of discussion:

• Is it appropriate that the TRA undertakes the reconsideration? - A question might be raised as to whether it is appropriate for the TRA to ‘mark their own work’. There are no guidelines in the legislation as to how the TRA should conduct the reconsideration. In the guidance on TRA procedures on the TRA website it is stated that the reconsideration will be carried out by a team that did not work on the original case, though this is not. legal requirement. However, although the case team may be different, the reconsideration is being undertaken by exactly the same body that made the original decision and the final decision-makers in the hierarchy are also the same. Australia has a review process that is similar to the UK’s reconsideration (Anti Dumping Review Panel (ADRP)). There are 6 panel members that will undertake reviews of final determinations made by the Anti-Dumping Commission. Although the Australian AD Commission and the ADRP are both within the same Ministry, the law explicitly prevents the appointment of any customs officer, the Commissioner or any Commission staff member to the review panel. Thus, there is a degree of independence from the original decision-makers and the panels undertake an independent detailed review of the original determination. Discussion Pointso - Should the UK create something like the Australian ADRP? Does the TRA already have such a workload that makes it difficult to dedicate sufficient resources to do meaningful reconsiderations?

• Is it too easy to trigger a reconsideration? - Regulation 10(5) sets out what an application for reconsideration must include. In terms of substance, it is only required that the applicant sets out their ‘grounds for reconsideration’. There is no threshold of evidence required in an application. For example, the law could require that the applicant sets out prima facie evidence of a mistake either in the analysis or legal interpretation. It could be argued that the term "grounds' could be interpreted as requiring a justification. However, there is considerable ambiguity here and it is possible that the threshold to trigger a reconsideration is low. Although this makes reconsideration easily accessible to interested parties, requiring some explicit threshold of evidence would ensure that only reasonable applications are made. Also, it is not explicit when the TRA can refuse an application. The UK law gives a lot of discretion to the TRA. It sets out some requirements such as provisions on requesting information and the need to refer disputes on points of law to the Upper Tribunal but, apart from that, “the TRA may reconsider an original decision in whatever way it considers appropriate in the circumstances”. In Australia, an application for an ADRP must include a) grounds b) the decision the applicant believes should have been made c) a statement setting out how the grounds support the making of the proposed decision. The UK legislation has equivalent requirements to a) and b) but not c). Discussion Points - Should a more explicit threshold for evidence be created? Should the criteria by which the TRA can reject an application for reconsideration be clarified?

• What is the status of the original TRA/SoS final determination when a reconsideration is initiated? - In WTO terms it can be noted that reconsideration would not be considered as a ‘judicial review’. Article X.3(b) of GATT 1994 sets out the WTO obligations on judicial review of customs decisions. This includes a provision that ‘tribunals or procedures shall be independent of the agencies entrusted with administrative enforcement’. There is some ambiguity, therefore, about whether this is part of the original investigation (i.e. only when the reconsideration is complete is the investigation finalised) or is a form of domestic ‘judicial review’ that would not meet the WTO requirement (i.e. the original TRA/SoS determination is the final decision and the reconsideration is a form of judicial review). Note that the possibility to challenge determinations in the Upper Tribunal clearly meets the WTO requirements for judicial review, so there is no problem in terms of the UK meeting WTO requirements. The uncertainty is only over the status of the original investigation, and the point at which the investigation is complete, when there is a reconsideration. Discussion Point - Would the creation of an Australian-style ADRP remove the ambiguity around the status of a reconsideration in relation to the original investigation? Would the creation of an EU-type hearing officer allow ‘reconsideration’ issues to be dealt with within the original timeframe and thus clarify that the final TRA/SoS determination is final and can be challenged in the Upper Tribunal?

As with many aspects of the new UK trade remedy system, the concept of reconsideration is so new that I do not know the perfect answers to these questions. The ideas above are neither a criticism of the legislation nor the TRA. In fact, originally I thought the reconsideration provisions were positive. However, some of the points that arise may change my view and it is in this context that I am raising these discussion points.