For the first time in more than a decade Ukraine has applied provisional measures in two ongoing investigations (safeguard and antidumping). More specifically, 18% provisional safeguard duty on imports of polymeric materials regardless of a country of origin and export, and 19.75% provisional antidumping duty on imports of steel fasteners originating in China were introduced on May 28, 2020.
The decisions demonstrate that Ukraine will be using trade remedies to deal with the COVID consequences to the economy and to support the national producers. Leaving aside discussions on the substance of the decisions, this development again raises the problem for free trade.
One of the decisions comes into effect in 10 days after the publication, while the other one the same day. Although it is natural that long haul routes bear risks of provisional duties, however, decisions with the immediate effect seems to place exporters and importers into a disadvantaged position and discriminate them.
The decisions also lack the reasoning behind this new approach and the criteria it is based on. For example, the law clearly stipulates that provisional safeguard measures can only be imposed in critical circumstances where delay would cause damage which it would be difficult to repair. Yet, the decisions provide no guidance relating to the determination of critical circumstances, nor they provide any explanation as to why a possible damage is so critical.
The absence of clear guidance regarding the imposition of provisional measures obviously raises uncertainty and great concerns for participants of the ongoing and upcoming investigations. Clearly, the risks of provisional measures should now be considered more seriously by trade lawyers and the business.