2022 has been an interesting year as the world emerged from the pandemic. Hard core restrictions from the pandemic are all but gone and face-to-face meetings are starting to become the norm again. We are not quite at the fervour that we were at pre-pandemic, although the chorus would agree that 2021 remains an exceptional year.
Going into 2023, the prognosis is that it is going to be a challenging year with headwinds. Yet, this may not be the case for trade law related matters, where there have been interesting developments in 2022, and continued supply chain disruptions which are seeing a changing global trade play.
We provide key highlights of developments across Southeast Asia, such as regulatory activity relating to anti-dumping and safeguard measures, developments relating to export/import, free trade agreements, as well as sanctions. Briefly on trade remedies, there are developments in anti-dumping and safeguard duties under Indonesia, Philippines, Thailand, and Vietnam. On trade protectionism which has been creeping into various countries, we highlight Myanmar’s rules to curb the outflow of foreign currency, rules on border trade with Thailand and Philippines’ introduction of the “Admission Temporaire/Temporary Admission” Carnet System and its imposition of tariffs on certain electric vehicles and parts. On the flip side, to increase trade, we have the World Trade Organization (“WTO”) ruling against Indonesia’s nickel export ban and updates on the progress of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership. Finally, a major play has been around sanctions, with Singapore introducing sanctions for the first time independent of the United Nations and the addition of Myanmar to the Financial Action Task Force's blacklist of high-risk jurisdictions. Trade has never been more exciting.
The RTA Competition & Antitrust Team continues to be at the forefront of trade issues across Southeast Asia, being the only dedicated practice of its kind entirely based in this region. The Team has done very well in its ranking, maintaining a Tier 1 Ranking in Chambers AsiaPacific as well as ranked in Chambers Global. Our Team members are highly ranked with Melisa Uremovic and Kala Anandarajah cited as leading lawyers. We have also seen several new hires as well as returnees across the different offices. We are especially pleased to have Joshua Seet re-join us and now a partner in the team (bringing the total number of partners to 4 in Competition & Antitrust) in Singapore and over 10 across the region.
Part 2 of our Regional Trade Report 2022 discusses the key developments relating to the export and import of goods in 2022 in the region.
Exports & Imports, Export Control, and Others
There were a variety of developments relating to the export and import of goods in 2022. The developments related to general regulatory changes affecting the export/import of goods, changes in export/import processes, changes in Harmonised System codes, what constitutes dual-use goods under export control rules, and tariffs and duties, etc. Separately, in Myanmar, changes were implemented to curb the outflow of foreign currency, amongst others. We highlight some of these key developments below.
Export & Import: Controlled Goods, Processes, Duties and Tax, Others
In Indonesia, the WTO ruled against Indonesia’s nickel export ban in November 2022. The WTO deemed that the export ban could not be justified under Article XI(2) of GATT, and therefore is inconsistent with Article XI(1) of GATT. This affirmed the complaint brought by the EU in 2021 against the nickel export ban imposed by Indonesia in 2020. It was recommended in WTO’s decision that Indonesia brings its measures into conformity with the GATT 1944. As of December 2022, Indonesia has yet to repeal its nickel export ban. The Indonesian government intends to file an appeal against the WTO’s decision.
In Singapore, in 2022, the range of controlled goods were expanded to include the importation of drones operating in cellular networks. The import of such drones now requires prior approval from the Infocomm Media Development Authority (“IMDA”) and dealers intending to import and sell such drones have to apply for a Telecommunication Dealer (Individual) Licence from IMDA.
With effect from 19 June 2022, the new Singapore Trade Classification, Customs and Excise Duties (“STCCED”) 2022, which incorporates the ASEAN Harmonised Tariff Nomenclature (“AHTN”) 2022, was implemented. The AHTN 2022 harmonises Harmonised System (“HS”) codes at the 8-digit level for use by all ASEAN countries. New permit applications must be submitted using the AHTN 2022 HS Codes.
With effect from 1 January 2023, the GST rate has increased from 7% to 8%. Thus, amongst other things, the new GST rate of 8% will apply to imported goods and goods released from licensed premises for local consumption after 31 Dec 2022. GST will also apply to ‘imported low-value goods’ in respect of business-to-consumer transactions for overseas vendors prescribed under the ‘overseas vendor registration’ regime from 1 January 2023. As a result of the expansion, such vendors have to charge GST on supplies of low-value goods to non-GST registered customers and GST-registered businesses purchasing goods for non-business uses. This policy is intended to level the playing field for Singaporean businesses regardless of whether the low-value goods are procured from overseas or locally.
In Malaysia, the Ministry of Finance issued a new Customs Duties Order 2022 ("CDO 2022"), which replaces the Customs Duties Order 2017, effective 1 June 2022. The new CDO 2022 is in line with the latest edition of the Harmonised Commodity Description and Coding System adopted by the World Customs Organisation ("HS 2022"). In pace with changing trade patterns and growth of technology, 351 sets of amendments were made to the CDO 2022, covering a wide range of goods. In particular, a classification for novel tobacco products, which includes e-cigarette/vapes, was added as a response to challenges faced previously on the proper classification of these products, which saw high monetary value of trade.
Separately, the Trade Descriptions (Amendment) Act 2021 ("Amendment Act") was passed in respect of the Trade Descriptions Act 2011 ("TDA"), and came into force on 11 January 2022. The TDA oversees the promotion of good trade practices by prohibiting false trade descriptions and false or misleading statements. Amongst others, the Amendment Act introduced a range of enforcement instruments for the regulator, and more prominently, expanded the overall scope of the TDA to include "prohibiting, restricting or otherwise regulating or controlling the use of any statement, expression or indication which is likely to discriminate or boycott any product or goods or to discourage, forbid, hinder or influence any person from using or consuming any product or goods in the course of trade or business". Amongst other things, it will result in the prohibition of any statements, expressions, or indications against Malaysia's major commodities, especially palm oil; e.g. using the expression "no palm oil" in advertisements including food labels, notices, and catalogues. Businesses, including those importing goods into Malaysia, must keep themselves review these developments, especially if these goods compete with their major commodities.
In Philippines, the “Admission Temporaire/Temporary Admission” Carnet System (“ATA Carnet System”) was introduced in 2022 to further develop export and import processes. The ATA Carnet System allows the free movement of goods across frontiers and their temporary admission into Customs territory with relief from duties and taxes. Under this system, goods are covered by a single document known as the ATA Carnet, which is an international customs document that permits duty-free and tax-free temporary import of certain goods for a specific purpose (e.g., trade shows, scientific or business purpose). On 18 March 2022, the Bureau of Customs issued Customs Administrative Order No. 02-2022, setting out the rules and regulations for the ATA Carnet System.
In Myanmar, there have been significant developments in different areas that affected import and export processes in 2022. We highlight some of these below.
In April 2022, the Central Bank of Myanmar (“CBM”) implemented certain foreign currency conversion requirements by issuing Notification No. 12/2022 (the “Notification”). The Notification stated that foreign exchange account holders can no longer hold their foreign-denominated income for more than one day. Under Directive No. 4/2022, USD must be converted into Myanmar Kyat (“MMK”) within one working day with specified banks at a fixed rate of 1,850 MMK for 1 USD at a further service fee. This fixed rate has later been increased to 2,100 MMK for 1 USD. On 5 August 2022, the CBM issued Notification No. 36/2022 (“Notification 36”) to relax the foreign currency conversion requirement for export earnings in Myanmar; only 65% and not all of the income received from exportation must be converted to MMK within one day. New rules were later also introduced to instruct specified banks to purchase 65% of the export earnings of exporters to comply with the foreign currency conversion requirement, amongst other things.
Separately, the Foreign Exchange Supervisory Committee (“FESC”) was established under Order 28/2022. The FESC is a regulatory body granted with the authority to scrutinize and approve the use of foreign currency primarily for the purposes of supervising the flow of foreign currencies for domestic and foreign investment, manufacturing, exports and imports, and service businesses. Exporters and importers are required to submit applications to the FESC before undertaking import and export license applications at the MOC. With respect to import licenses, MOC issued Newsletter No. 2/2022 on 30 March 2022, which states that an additional 141 items would require import licenses. MOC subsequently relaxed the requirement for import licenses for several items, such as farm machinery, plant or laboratory equipment.
Last, the Ministry of Commerce (“MOC”) introduced certain Standard Operating Procedures (“SOP”) for payment processes when carrying out border trade by via Newsletter No. 10/2022. From 1 November 2022, all border trade imports between Myanmar and Thailand must be settled through Myanmar’s banking system. Amongst other things, companies applying for an import license must submit credit advice and original bank statements proving the receipt of export earnings or other earnings into their respective bank account(s); and where products do not require an import license, importers must provide these when filling import declarations. Import licenses approved before 1 November 2022 must complete the importation of goods by 30 November 2022, failing which the import license will be nullified.
Export Control: Strategic / Dual-Use Goods
In Malaysia, on 10 May 2022, the Strategic Trade (Compounding of Offences) Regulations 2022, which relate to offences under the Strategic Trade Order 2010, was gazetted and came into force on 1 June 2022. Offences committed under the First Schedule of the Regulations are compoundable offences.
As of 1 October 2022, Singapore updated its list of strategic goods in the Strategic Goods (Control) Order by passing the Strategic Goods (Control) Amendment Order 2022. This brings it in line with the 2021 EU’s List of Dual-Use Items. For example, the updated list amends the definition of “superalloys”, specifying the ultimate tensile strength that an alloy must have to constitute a superalloy. In addition, the Strategic Goods (Control) Regulations have been updated to include new goods under the Fourth and Fifth Schedules, including goods like radiation hardened ‘detectors’, and ‘star trackers’ and its components. Businesses must review the updated wordings and ensure their exports remain in compliance with the amended regulations.
Preferential Tariffs and Duties
In Philippines, on 24 November 2022, the National Economic and Development Authority Board endorsed an Executive Order (“EO”) to implement tariff modification on certain electric vehicles (“EV”) and their parts. The EO modified tariff rates on certain EVs, such as passenger cars, buses, mini-buses, vans, trucks, motorcycles, tricycles, scooters, and bicycles among others, as well as EV parts and components. Once approved by the President, the EO will temporarily reduce the Most Favoured Nation tariff rates to 0% for five years on Completely Built Up units of certain EVs, except for hybrid-type EVs. The EO would also reduce tariffs on certain parts and components of EVs from 5% to 1% for five years.
In Vietnam, imported goods are subject to import taxes such as ordinary, preferential and special preferential import tax. With respect to oil and petroleum products, the Government issued Decree 51/2022/ND-CP on 8 August 2022 to amend preferential import tariff rates on petroleum products under HS Codes with the heading of 27.10 from 20% to 10% to encourage the importation of the product. With respect to preferential and special preferential import and/or export tariffs relating to bilateral/regional trade agreements, notably, on 10 March 2022, Decree No. 21/2022/ND-CP was issued to amend articles of Decree 57/2019/ND-CP on Vietnam's special preferential import tariff schedule for implementation of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership for the period of 2019 to 2022. Separately, on 1 June 2022, a Circular 10/2022/TT-BCT was issued to amend various circulars on the regulations on origin of goods under ASEAN Trade in Goods Agreement (ATIGA). This Circular provides a new form for Form D C/O, replaces the regulations on the issuance and checking of C/O, and provides guidance for the filling of C/O under Circular 22/2016/TT-BCT, with a new set of regulations and guidance.
In Indonesia, the government is in the midst of preparing a nickel export tariff regulation, which objective of the proposed regulation is to enable Indonesia to develop its downstream industries. While fixed figures have yet to be determined, it is expected that a 2% export tariff will be imposed on nickel pig iron and ferronickel.
Businesses that engage in the export and import of goods must familiarise themselves with the myriad of issues that can arise in trade law and be apprised of the quick paced developments, so that they can make the necessary changes to comply with new or amended laws and regulations. For example, it is particularly important for businesses to check whether they are using the correct HS codes in their permit applications or whether the goods that they carry are considered as dual-use goods in the country that they are exporting from. Failure to do so can result in heavy penalties. Importantly, we also remind businesses that local export control rules are not identical to those issued by the US and EU and thus, businesses must be careful against assuming as such. It is hence important for businesses to have and maintain a robust internal compliance programme and provide adequate training to their employees to equip them with the requisite knowledge to detect potential issues.
Please click here for the full version of the Rajah & Tann Asia Regional Trade Report 2022.