Panel rules in favour of EU on Southern African Customs Union’s safeguard on EU poultry cuts
Panel rules in favour of EU on Southern African Customs Union’s safeguard on EU poultry cuts
An arbitration panel ruled in favour of the EU in a bilateral dispute with the Southern African Customs Union (SACU) under the EU-SADC EPA over a safeguard measure imposed by SACU on EU imports of frozen chicken cuts.
In a report issued today, an arbitration panel ruled in favour of the EU in a bilateral dispute with the Southern African Customs Union (SACU) under the EU-Southern African Development Community Economic Partnership Agreement (EU-SADC EPA) [1] over a safeguard measure imposed by SACU on EU imports of frozen chicken cuts. The safeguard measure affected EUR 183 million worth of EU exports. [2]
The panel found that the safeguard measure was not proportionate and went beyond what was needed to remedy or prevent any serious injury or disturbances. Moreover, the delay between the investigation and the adoption of the safeguard measure was excessive and not in line with the EU-SADC EPA.
The ruling sets a strong precedent for the imposition of similar safeguards under the EU SADC agreement in the future. While safeguard measures can legally be adopted in exceptional circumstances to temporarily counter surging imports that threaten domestic industry, these must at all times comply with the legal requirements set out in the agreement.
While no immediate action is required from SACU to implement the ruling given that the safeguard measure expired in March 2022, the Commission will remain vigilant to ensure that the EU industry is not subjected to any further unjustified restrictions in the future.
A non-confidential version of the report will be published on the dedicated website of DG Trade as soon as possible.
Background
In September 2018, SACU adopted a safeguard measure on frozen chicken cuts from the EU in the form of increased import duties. On 14 June 2019, the EU formally requested consultations with SACU on these safeguards measures, arguing that they did not comply with the requirements for such measures under the EU-SADC EPA and thus amounted to illegal duties. Consultations were held in September 2019, following which, in April 2020, the EU requested the establishment of a bilateral dispute resolution panel. Following delays occasioned by the Covid-19 pandemic, an arbitration panel was established and started working on 29 November 2021. This was the first time the EU triggered a bilateral dispute settlement mechanism under one of its EPAs.
For more information
Southern African Customs Union poultry safeguards (europa.eu)
[1] EPA benefitting countries are: Botswana, Lesotho, Mozambique, Namibia, South Africa and Eswatini.
[2] This is based on 2016 data, which is the last year before SACU investigation. 95% of EU exports of this type of frozen poultry was exported to South Africa and the rest to Namibia.
Directorate-General for Trade
Ghana Arbitration Centre to hear case between Bank of Ghana and Dr Ndoum
Ghana Arbitration Centre to hear case between Bank of Ghana and Dr Ndoum
Court of Appeal has, by a unanimous decision, upheld the Bank of Ghana’s application that the challenge by Dr Papa Kwesi Nduom and others against the central bank’s revocation of the license of GN Bank be referred to arbitration.
Dr Papa Kwesi Nduom and others sued the Central Bank against the revocation of the licence of GN Bank.
The three-member panel led by Justice Henry Coffie and comprising Justice Eric Baah and Justice Novisi Ayine held that per section 141 of Act 930, the forum for such a challenge was arbitration and not the court.
The Court held further that Dr Nduom and the other applicants had masqueraded their challenge to the decision of the Bank as a human rights application.
The Court therefore stayed the proceedings at the High Court and referred the matter to the Ghana Arbitration Centre.
Dr Nduom, Chairman for GN sued the BoG and the others to demand the restoration of the license of the GN Savings and Loans.
The suit also affected Mr Ofori-Atta, Finance Minister, the Attorney General, AG, and Mr Eric Nana Nipa, the receiver of the GN Savings and Loans.
In his claim, Dr Nduom has stated that GN Savings was not only solvent but would be liquid if the Finance Ministry and other government agencies paid amounts owed to it.
GNA
Nigeria wins arbitration award fight against P&ID as judgment referred to regulators over lawyers’ conduct
Nigeria wins arbitration award fight against P&ID as judgment referred to regulators over lawyers’ conduct
A High Court judgment naming lawyers involved in an arbitration award under which Nigeria was ordered to pay a sum equal to its entire federal budget is to be sent to legal regulators, a judge ordered today.
Granting an application to overturn the $11bn award to oil and gas company P&ID on the grounds that it was ‘obtained by fraud’, the Honourable Mr Justice Robin Knowles said the case ‘sadly brought together a combination of examples of what some individuals will do for money’. The 140-page judgment follows an eight-week hearing earlier this year in which the government of Nigeria argued that it should not be required to honour the award.
Giving judgment in Federal Republic of Nigeria v Process & Industrial Development Ltd today, the judge said that Nigeria succeeded on its challenge under section 68 of the Arbitration Act 1996, though not all of its allegations were accepted.
In an endnote, the judge lambasted individuals who were ‘driven by greed and prepared to use corruption; giving no thought to what their enrichment would mean in terms of harm for others’.
The judge said he would refer a copy of his judgment to the Solicitors Regulation Authority and Bar Standards Board in relation to the conduct of solicitor Seamus Andrew and barrister Trevor Burke KC over the handling of documents which came into P&ID’s hands during the arbitration proceedings.
‘As legal professionals Mr Andrew and Mr Burke KC appreciated that [Nigeria’s internal legal documents] included documents that were privileged, ‘ the judge said. He rejected as ‘untrue’ Andrew’s oral evidence that the documents were shared as part of settlement discussions. ‘Mr Andrew and Mr Burke KC knew that P&ID and they were not entitled to see these documents. Their decision not to put a stop to it, at least by informing Nigeria or immediately returning the documents they knew were received, was indefensible,’ the judge said.
‘The reason Mr Andrew and Mr Burke KC behaved in this way was because of the money they hoped to make,’ the judge continued. Andrew may have had a claim for up to £3bn in the event of P&ID’s success while Burke may have had a claim for up to £850m, he said. ‘I trust that these two regulators of the legal profession in England & Wales will consider the professional consequences of the conduct of Mr Burke KC and Mr Andrew in relation to Nigeria’s internal legal documents.’
Knowles also said that he hoped the case would spark debate about the conduct of arbitration. ‘The facts and circumstances of this case, which are remarkable but very real, provide an opportunity to consider whether the arbitration process, which is of outstanding importance and value in the world, needs further attention where the value involved is so large and where a state is involved.
‘The present case shows that having a tribunal of the greatest experience and expertise is not enough. Without reflection, then a case such as the present could happen again, and not reach the court.’
In statements Seamus Andrew and Trevor Burke KC denied wrongdoing. Andrew said ‘I do not accept the criticism in the judgment concerning Nigeria’s internal legal documents. I believe I acted in accordance with my professional duties, and I am confident that my conduct will in due course be vindicated by my regulator.
‘I appeared voluntarily before the High Court as a witness and did my best to answer the questions asked of me carefully and accurately, as the judge observed. I shall not be making any further comment at this time in relation to today’s judgment.’
Burke said: ‘I do not accept the criticism that have been made of me in relation to Nigeria’s internal legal documents. I gave my evidence in the English proceedings in good faith and to the best of my ability.
‘I am confident that my conduct will be exonerated by my professional body with whom I shall cooperate fully.’
Bianca Castro
