Opening Pandora's box: The 'confidentiality' clause in the International Trade Administration Commission's amended Tariff Investigations Regulations

• Jurisdiction: South Africa
• Date: 27 November 2019
• Pages: 90-106
• Citation: (2019) 31 SA Merc LJ 90
• Published date: 27 November 2019
• Author: None

OPENING PANDORA’S BOX:

THE ‘CONFIDENTIALITY’ CLAUSE

IN THE INTERNATIONAL TRADE

ADMINISTRATION COMMISSION’S

AMENDED TARIFF INVESTIGATIONS

REGULATIONS

CLIVE VINTI*

Lecturer, Department of Public Law, University of the Free State

Abstract

The Amended Tariff Investigations Regulations (‘ATR’) allow an

applicant to apply for a tariff increase on a product so as to protect the

local industry from the pressure exerted by imported products. This

amendment of a tariff or customs duty is preceded by an investigation

by the International Trade Administration Commission (‘ITAC’),

which assesses the merits of this application. During this investigation,

ITAC requires the party applying for the tariff increase (or

amendment) to provide certain information that could either justify or

controvert the merits for the amendment of the tariff. However, this

information may contain ‘confidential’ information that coincidently

justifies the tariff increase but at the same time, also divulges the

competitive advantage of the applicant. The ATR permits the

non-disclosure of this information if it finds it to be ‘confidential’. This

paper then explores the ATR’s attempt at finding the balance between

divulging enough information for interested parties to defend their

interests and at the same time, to protect the ‘confidentiality’ of the

competitive advantage of the applicant for a tariff increase. It is my

view that the ATR fails to achieve this balance and thus, compels

interested parties to defend their interests in the dark.

I INTRODUCTION

Regulation 3 of the International Trade Administration Commission

Amended Tariff Investigations Regulations provides for the non-

disclosure of ‘conf‌idential’ information in respect of an application for a

* LLB (cum laude) (UFH) LLM (UCT).

90

(2019) 31 SA Merc LJ 90

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tariff increase. This ‘conf‌identiality’ clause goes to the heart of a tariff

increase application in that it could obfuscate material information that

could hamper an interested party’s defence of the application. Conse-

quently, this paper seeks to evaluate the legal implications of this

‘conf‌identiality’ clause. The analysis is undertaken through an assess-

ment of relevant legislation and case law. It must be noted that this

enquiry will be pursued from the perspective of an application to

increase tariffs.

II THE ‘CONFIDENTIALITY’ CLAUSE UNDER THE

INTERNATIONAL TRADE ADMINISTRATION

COMMISSION AMENDED TARIFF INVESTIGATIONS

REGULATIONS

A ‘tariff’ or ‘customs duty’ is a tax on imported goods.

1

There are two

types of tariffs: ‘applied’ tariffs and ‘bound’ tariffs. An ‘applied’ tariff is

the tariff rate a World Trade Organization (‘WTO’) member actually

imposes on an imported product; whereas a ‘bound’ tariff refers to a

level of protection a member has agreed not to exceed.

2

In simple terms,

the General Agreement on Tariffs and Trade, 1994 (‘GATT’), permits a

WTO member to increase or reduce a tariff within the scope of the

ceiling set by the ‘bound rate’.

3

South Africa is a signatory to both the

GATT and the Marrakesh Agreement Establishing the World Trade

Organization (‘WTO Agreement’).

4

Both the GATT and the WTO

Agreement have been approved by parliament,

5

and consequently bind

the Republic in terms of section 231(2) of the Constitution of the

Republic of South Africa, 1996 (‘the Constitution’).

6

In this regard, an

1

Bhala, Modern GATT Law: A Treatise on the General Agreement on Tariffs and Trade

(Sweet & Maxwell 2005) 175. See also, Van den Bossche & Zdouc, The Law and Policy of the

World Trade Organization 3 ed (Cambridge University Press 2016) 423. See art II read with art

XXVIIbis of the General Agreement on Tariffs and Trade, 1994.

2

Bhala, (Sweet & Maxwell 2005) 177. Bhala submits the terms ‘bound’ or ‘applied’ cannot

be found in either article II or XXVIIbis. See also, WTO Appellate Body Report, Argentina -

Measures Affecting Imports of Footwear, Textiles, Apparel and other Items, WT/DS56/AB/R,

adopted 22 April 1998, para 46.

3

Van den Bossche & Zdouc, (Cambridge University Press 2016) 449.

4

Bridon International GMBH v International Trade Administration Commission 2013 (3)

SA 197 (SCA) (‘Bridon’) para 12.

5

Bridon para 12.

6

Bridon para 2. Section 231(2) of the Constitution provides that ‘an international

agreement binds the Republic only after it has been approved by resolution in both the

National Assembly and the National Council of Provinces, unless it is an agreement referred

to’’ in subsection 3’ (ie, s 231(3) of the Constitution). See International Trade Administration

Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC) para 2; Progress Office

Machines CC v South African Revenue Service 2008 (2) SA 13 (SCA) paras 5 and 6. See further,

OPENING PANDORA’S BOX: THE ‘CONFIDENTIALITY’ CLAUSE IN ITAC’S ATR 91

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