Opening pandora’s box: the ‘confidentiality’ clause in the international trade administration commission’s amended tariff investigations regulations
Author Clive Vinti
Affiliations: Lecturer, Department of Public Law, University of the Free State, LLB (cum laude) (UFH) LLM (UCT).
Source: South African Mercantile Law Journal, Volume 31 Issue 1, 2019, p. 90 – 106
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.