The Handbook of Trade Enforcement 2009 by etssetcf


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									The Handbook of
Trade Enforcement
A Global Competition Review special report
published in association with:

Nagashima Ohno & Tsunematsu

Mitsuo Matsushita, Shintaro Watanabe and Mitsuaki Nozue
Nagashima Ohno & Tsunematsu

In general, trade remedies made available under        Control (Yunyu Boueki Kanri-rei) and related
Japanese laws are consistent with the World            public notices. The latter is provided for in
Trade Organization (WTO) Agreements. Japan             article 9 of the Customs Tariff Law and relevant
had a very limited number of trade remedy cases        regulations and guidelines. Japan has implemented
where investigations are commenced and measures        quantitative restrictions and emergency duty on
actually taken by the authorities, and such scarcity   Chinese leeks, shiitake mushrooms and rushes
of precedents had left trade remedy laws and           in 2001, and emergency duty on certain goods
regulations unclear in their meanings. However,        originating in the United States in 2002 in response
there was a recent amendment with a view to            to the safeguard measures of the United States
improving transparency and predictability of those     regarding steel products. Both measures have been
regulations.                                           abolished.

Anti-dumping duty                                      Emergency duties on certain agricultural goods
Anti-dumping duty is provided for in article 8         Emergency duties on certain agricultural goods (eg,
of the Customs Tariff Law (Kanzei Teiritsu-hou)        rice, dairy products, beef and pork) are provided
and relevant regulations and guidelines. In 1991,      for in articles 7-3 through 7-6 of the Temporary
Japan made its first definitive determination to       Tariff Measures Law (Kanzei Zantei Sochi-hou), in      j
impose anti-dumping duty, and since then Japan         part as compensation for expected damage arising
has implemented four of these duties. The anti-        from the entry into force of the Agreement on
dumping duties that are currently in force are the     Agriculture and incurred by domestic producers.
one against certain polyester staple fibres from
Korea and Chinese Taipei (from 2002) and the           Emergency duties under bilateral trade
one against electrolysis manganese dioxide from        agreements
Australia, Spain, China and South Africa (from         Emergency duties with a view to implement
2008). In practice, the investigation takes at least   provisions of certain bilateral trade agreements
one year and a few months.                             between Japan and its trade partners are provided
                                                       in article 7-8 of the Temporary Tariff Measures
Countervailing duty                                    Law. Such trade agreements include those with
Countervailing duty (excluding anti-dumping            Singapore, Mexico, Malaysia, Chile, Thailand,
duty) is provided for in article 7 of the Customs      Indonesia, Brunei Darussalam, ASEAN member
Tariff Law and relevant regulations and guidelines.    countries and the Philippines.
In 2006, Japan imposed its first countervailing
duty of 27.2 per cent against importation of           Special safeguard measures against the People’s
certain DRAMs from Korea, after investigation          Republic of China
of approximately one-and-a-half years. After           Transitional product-specific safeguard measures
Korea’s challenge in the WTO dispute settlement        against China are provided for in article 7-7 of the
procedure, this countervailing duty was abolished      Temporary Tariff Measures Law and article 52 of
on 23 April 2009.                                      the Foreign Exchange and Foreign Trade Law, and
                                                       relevant regulations in accordance with protocol
General safeguard measures                             on the accession of China to the WTO. This
Safeguard measures of general nature include           special safeguard measures include tariff measures
quantitative restriction and emergency duty. The       and quantitative restrictions (import quota) and
former is provided for in article 52 of the Foreign    may be imposed until 10 December 2013.
Exchange and Foreign Trade Law (Gaikoku
Kawase oyobi Gaikoku Boueki-hou), article 3,
paragraph 1 of Cabinet Order on Import Trade                                                                         49

    Retaliatory tariff                                           a petitioner needs only to adduce “reasonably
    Japan may impose retaliatory tariffs under article           available information” instead of “sufficient
    6 of the Customs Tariff Law. Japan has been                  information” as it was provided before), setting the
    imposing since 2005 its first retaliatory tariff on          target period of two months from the submission
    certain goods originating in the United States,              of the application for the investigation authorities
    in accordance with the decision of the Dispute               to decide whether to commence investigations,
    Settlement Body of the WTO (US – Offset Act                  providing consumer advocacy groups with an
    (Byrd Amendment)).                                           opportunity to submit their opinion during
                                                                 the course of the investigation, setting more
    Recent amendment to Japan’s regulations and                  detailed timelines of the investigation proceedings,
    guidelines regarding trade remedies                          introducing additional provisions for clarifying
    Japan amended its regulations and guidelines                 procedures regarding provisional determination,
    regarding trade remedies effective as of 1 April             and providing for standard form of questionnaires
    2009. The major area of amendment includes                   of the investigation authorities. It is expected that
    relaxing the requirements for the investigation              these amendments will improve the transparency
    authorities to commence investigation (in order to           and predictability of trade remedy procedures of
    bring a petition with the investigation authorities,         Japan. n


     nagashima Ohno & Tsunematsu

     Kioicho Building, 3-12             Nagashima Ohno & Tsunematsu, established in 2000, is widely known as
     Kioicho, Chiyoda-ku                a leading law firm in Japan, and a foremost provider of international and
     102-0094                           commercial legal services. We represent domestic and foreign companies and
     Tokyo                              organisations involved in every major industry sector and in every legal service
     Japan                              area in Japan. We have successfully structured and negotiated many of Japan’s
                                        largest and most significant corporate and finance transactions, and have
     Tel: +3 3288 7000                  deep litigation strength spanning key commercial areas, including intellectual
     Fax: +3 5213 7800                  property and taxation. As of 1 April 2009, we have 331 lawyers (inclusive of 12
                                        foreign-licensed lawyers) capable of providing our clients with practical solutions
     Yuko Tamai                         to meet their business needs.
     (Dai-ichi Tokyo Bar Association)       Main areas of practice: general corporate; mergers and acquisitions                    (M&As); private equity; legislation and regulations; restructuring and insolvency;
                                        compliance and risk management; capital markets; banking; securitisation,                     structured finance and trust; financial regulations andfund management;
                                        insurance; acquisition finance; project finance; IP IT and entertainment;
                                        tax practice; dispute resolution; real estate and J-Reits; antitrust practice;
                                        environmental law practice; employment and labour practice; and China legal

    50                                                                        The Handbook of Trade Enforcement 2009
                                                       about the authors

Mitsuo Matsushita
Nagashima Ohno & Tsunematsu
Mitsuo Matsushita is Professor Emeritus of the
University of Tokyo, professor of Seikei University,
and former member of the appellate body of the
World Trade Organization. Professor Matsushita
has been counsel to the government of Japan in
the field of competition law, trade law and WTO
affairs, to name a few.

Shintaro Watanabe
Nagashima Ohno & Tsunematsu
Shintaro Watanabe is attorney-at-law (Japan and
the state of New York). He worked at the Ministry
of Economy, Trade and Industry from 1992 to 2002
and has been involved in, among others, WTO
affairs, export control regulations and nuclear
energy policies. His practice areas include M&A
and other corporate matters, foreign investment,
trade regulations and energy regulations.

Mitsuaki Nozue
Nagashima Ohno & Tsunematsu
Mitsuaki Nozue is an associate at Nagashima Ohno
& Tsunematsu. His practice focuses on M&A
and other corporate matters, including foreign
investment and trade regulations. He graduated
in 2004 with an LLB from Kyoto University and
in 2006 with a JD from Kyoto University Law
School. He was admitted to practise law in Japan
in 2007.

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