Global trade is undergoing fundamental change.
The UK's decision to leave the EU, President Trump's intention to "put America first," and Asia's determination to play a greater role in globalisation will have a dramatic impact for years to come. Trade agreements are notoriously slow and complex for governments to negotiate, and during this period of uncertainty, our trade experts can help our clients to manage the impact on their businesses.
On 30 April 2020, the EU and 19 other World Trade Organization ("WTO") members announced the terms of an interim arrangement enabling appeals of WTO panel decisions to be decided in the absence of a functioning WTO Appellate Body. The arrangement, dubbed the Multi-Party Interim Appeal Arbitration Arrangement’ ("MPIA"), aims to provide a temporary solution to practical and systemic issues arising as a consequence of the failure by WTO members to reach consensus on the appointment of new Appellate Body members. Read more about the WTO's Interim Appeal Arbitration Arrangement - A Bridge Over Troubled Waters?
Recent events suggest that EU measures aimed at frustrating US sanctions on Iran are unlikely to be a match to the threats imposed by the Trump Administration on those who try to use them. Read more about the Tensions between the EU and US on Iran Sanctions.
Faced with criticism from the United States, the World Trade Organization’s (WTO) appeals system is grinding to a halt. By the end of the year, the Appellate Body is likely to have too few appointed Members to hear appeals (a division of three Members is required for each case). Unless the United States agrees to the appointment of new Members, the WTO’s Appellate Body will cease hearing new disputes, and the continued effectiveness of the dispute settlement system may be threatened.
This briefing provides an overview of the Appellate Body crisis by setting out the legal framework that governs the appeals process and discussing some of its perceived shortcomings. We also consider potential reforms and alternatives to the current system, including recent decisions by the EU, Canada and Norway to establish interim arbitration mechanisms. Read more about the WTO Appellate Body crisis.
Over the past year, completely contrary to public expectations, President Trump has unleashed the power of US economic sanctions to champion human rights and fight corruption globally. As laudable as this initiative may seem at first glance on public policy grounds, it also raises serious legal questions and creates new risks and uncertainties for the global business community. Read more about President Trump, Human Rights, US Sanctions and Global Business.
The rise of populism, protectionism, and increasing tensions in trade around the globe, are having a significant impact on businesses and how they prepare for the future. Here, Clifford Chance experts identify the trends that will have far-reaching economic and legal consequences. Read more about Populism, Protectionism and Trade - what it means for business.
Blockchain has the potential to alter the global financial system but has implications for sanctions regimes. Read more about Blockchain, Trade Finance and Sanctions Issues.
White Paper: Doing business in Africa: Financing projects, accessing liquidity and finding the right partner in a competitive market place
Africa is a continent thirsting for power. A study by McKinsey & Co. estimated that demand for electricity in Sub-Saharan Africa will jump four-fold between 2010 and 2040, representing average growth of 4.5 percent per annum. In order to realize its full energy potential, Africa will require about $490 billion of capital for power generation and another $345 billion for transmission and distribution.This document captures key elements of the discussion on Doing Business in Africa held at the Waldorf Astoria in Dubai on November 26, 2019, including bankability of the power projects, mitigating offtaker and political risks and structuring the right blend of financing. Read more about doing business in Africa.
This briefing explores: sukuk as a source of funding; growth in sukuk funding infrastructure development; sukuk structural variations across Africa and the outlook for sukuk in Africa. Read more on the Sovereign sukuk in Africa.
Standing at the crossroads between Asia and Europe, the Caspian region has a key part to play in China’s Belt and Road Initiative (BRI). The governments of Azerbaijan, Kazakhstan, Uzbekistan, Turkmenistan and Georgia, in particular, are actively courting Chinese investors and Chinese finance in relation to a range of domestic and cross-border transportation, energy and information infrastructure projects. Read more about Belt and Road: Investing in the Caspian Region.
UK & EU
The UK and Japan have reached agreement in principle on the UK-Japan Comprehensive Economic Partnership Agreement (UKJCEPA). The UKJCEPA is expected to be largely based on the existing Japan-EU EPA (JEEPA) but there will be some notable differences.
The agreement (reached on 11 September 2020) has been hailed as "historic" by the UK government and represents the UK's first major post-Brexit trade deal. In Japan, the UKJCEPA has been welcomed as ensuring post-Brexit trade continuity with the UK. Japan and the UK have each enjoyed improved access to each other's markets since the JEEPA came into force in February 2019, but once the Brexit transition period ends on 31 December 2020 so too do the benefits enjoyed by both parties under the JEEPA.
While we must wait for the full text of the UKJCEPA (expected in October) to understand exactly what has been agreed, announcements by both governments offer some strong indications on what to expect. Read more about the Agreement in principle for the Japan-UK trade deal: A focus on tech and the digital economy.
This briefing paper provides an overview of the European Union’s role in trade policy on behalf of its Member States, the process by which it undertakes different aspects of that policy, and the roles of the various EU institutions. Read more about the EU trade process explained.
The UK Department for International Trade (DIT) has unveiled its negotiating objectives for securing a free trade agreement with Japan. The DIT highlights textiles, agriculture, services and data exchange as key areas of focus. If secured, a UK-Japan FTA will avoid a potentially damaging post-Brexit ‘cliff edge’ when the benefits of the recently concluded EU-Japan Economic Partnership Agreement (JEEPA) fall away after 31 December 2020. Read more about the UK releases strategic approach for securing a free trade agreement with Japan.
Recent developments mean that European Union investors in other EU Member States are unlikely to be able to rely in the future on applicable bilateral investment treaties (BITs). The position for UK investors in those EU Member States with BITs with the UK (and vice-versa) also remains highly uncertain. Given this uncertainty, investors should review their investment structures and insurance to seek to mitigate the potential consequences of unjustified governmental measures. Read more about the EU investment treaty protection future uncertain: what should investors do?
Recent amendments to the French foreign investment control regime have brought significant changes. We analyse the likely effects of the regime changes on M&A activity and on the timeline for foreign investment approval in France. Read more about France's amended foreign investment regime.
The European Parliament confirmed the new class of European Commissioners with 461 votes in favour, 157 against and 89 abstentions on 27 November 2019. The new President of the European Commission, Ursula von der Leyen, and her team of European Commissioners took office on 1 December 2019 and will drive the EU’s agenda for the next five years. Ms von der Leyen, the former German defence minister, says that it will be a “geopolitical Commission,” signalling an intention to position Europe as a heavyweight on the world stage.
Here Clifford Chance experts, including Of Counsel Michel Petite who worked for EU institutions for 27 years and was legal adviser to three Commission Presidents, assess the priorities for the von der Leyen Commission. Read more about the new European Commission 2019-2024.
The EU Regulation establishing a framework for the screening of foreign direct investments into the EU will become applicable on 10 October 2020.
The Regulation will allow the Commission to review (but not block) certain investments of "Union interest" and to issue a non-binding opinion to the member state in which the investment takes place. It also clarifies the scope of the issues that member states may take into account when applying their national screening regimes without falling foul of EU law, sets certain common standards for those regimes and implements a system of cooperation and information exchange between member states and the Commission.
The legal confirmation that member states may legitimately block foreign takeovers involving critical infrastructure, technologies, raw materials and sensitive information is likely to lead to some member states introducing new foreign investment screening regimes or broadening the scope of their existing regimes. This, combined with increased exchanges of information between member states, will lead to transactions being scrutinised on public interest and national security grounds that are not, at present, caught. Read more on the Guide to the EU Foreign Investment Screening Regulation.
A conversation with Jenine Hulsmann on the UK review of the national security impact of foreign investment
The U.K. government has published proposals to strengthen its powers to review, and potentially block or unwind, investments on national security grounds. The impacts for infrastructure assets and projects can be significant. What should investors and investment managers know about this process and how to manage it going forward?
Listen to the 30 minute podcast with Jenine Hulsmann on I3 here
United States Trade Representative invites comments on proposals for additional duties on US$3.1 billion of EU and UK exports
Since October 2019 the United States has imposed additional duties on imports from the EU and UK in connection with the WTO Dispute Settlement Body's finding that EU subsidies to Airbus breached WTO rules. On June 23, 2020, the Office of the U.S. Trade Representative (USTR) published a request for comment, which contains proposals for additional duties on an estimated US$3.1 billion of EU and UK exports, including duties of up to 100% on certain products. EU and UK enterprises exporting to the United States, and impacted U.S. businesses, have until 26 July 2020 to comment on USTR's most recent tariff proposals. Read more about United States Trade Representative invites comments on proposals for additional duties on US$3.1 billion of EU and UK exports.