Strategic Research Sponsor of the American Bar Association's Section of International Law
Philippe De Baere
Office:
Glaverbel Building
Chaussée de la Hulpe 166 Terhulpsesteenweg
B-1170
City:
Brussels
Country:
Belgium
Tel:
+32 2 647 73 50
Fax:
+32 2 640 64 99

Questions and Answers:

Who's Who Legal Thought Leaders: Trade & Customs

Philippe De Baere is a leading lawyer in the field of EU and WTO trade law as well as EU customs law and export controls. He has represented numerous clients before the European Commission, the Court of Justice of the European Union, WTO Panels and the WTO Appellate Body. In recent years, he has been advising a number of sovereign clients during negotiations of free trade agreements.

WHAT PROMPTED YOU TO SPECIALISE IN TRADE AND CUSTOMS WORK?

Its varied nature. Each case involves a new combination of legal, economic and political elements. Also, trade work brings you into contact with very diverse clients, products and countries.

TO WHAT EXTENT HAS THE SCOPE OF YOUR PRACTICE EVOLVED OVER TIME?

It has become much wider and deeper in scope. Initially, our trade practice dealt almost exclusively with European trade defence investigations against Japanese exporters.  Now, we still successfully handle trade defence cases, but WTO dispute settlement, the negotiation and interpretation of trade agreements, arbitration as well as disputes involving public international law have become an integral part of our practice.

YOU HAVE BEEN ENGAGED IN MAJOR PROCEEDINGS BEFORE THE EUROPEAN AND WTO COURTS. WHAT WOULD YOU SAY IS THE KEY TO YOUR SUCCESS?

I have always been able to rely on an excellent team. The complexity of large trade disputes makes it impossible for a single practitioner to master all aspects.

LOOKING BACK OVER YOUR PRACTICE, WHAT HAS BEEN THE MOST MEMORABLE CASE OF YOUR CAREER SO FAR?

I find cases where I was able to have a systemic impact the most satisfying. For instance, as a result of the findings of the WTO Appellate Body in EC-Fasteners, the European Union had to amend its Basic Anti-Dumping Regulation on a number of essential points.

YOUR CUSTOMS WORK FOCUSES GREATLY ON TECHNOLOGY PRODUCTS. WHAT IS IT ABOUT THIS INDUSTRY THAT INTERESTS YOU?

The challenges caused by rapid technological change. The legal framework still assumes that certain physical features of a product correspond to specific functions. In reality, many new products have become multifunctional “black boxes”. How to make an outdated legal framework fit this new reality can be extremely interesting.

ARE THERE ANY PARTICULAR CHALLENGES CURRENTLY BEING FACED BY TRADE AND CUSTOMS PRACTITIONERS IN EUROPE?

Where to begin? Brexit will require trade and customs practitioners to come up with very innovative solutions to minimise disruption. The United States is increasingly becoming a disruptive factor in the multilateral trading system and the WTO system may have to find ways to accommodate certain criticism levelled at it by the new administration. China seems ready to fill part of the vacuum left by the United States, but many countries have doubts about its willingness to play by the rules. Will it be more beneficial to engage with China or should we try to contain Chinese trading and investment capacity?

HOW DO YOU SEE THE PRACTICE AREA DEVELOPING OVER THE COMING YEARS?

I expect that international dispute resolution will start playing a much larger role.

WHAT ADVICE WOULD YOU GIVE TO LAWYERS WHO HOPE TO ONE DAY BE IN YOUR POSITION?

Be flexible. Change is inevitable. You should be prepared to reinvent your practice and not shy away from exploring new ground.

Who's Who Legal Thought Leaders - Brexit

Philippe De Baere is a leading lawyer in the field of EU and WTO trade law as well as EU customs law and export controls. He has represented numerous clients before the European Commission, the Court of Justice of the European Union, WTO Panels and the WTO Appellate Body. In recent years, he has been advising a number of sovereign clients during negotiations of free trade agreements.

How did you and the team at Van Bael & Bellis prepare for the Brexit referendum?

We created a dedicated Brexit team of trade and customs experts to respond to urgent questions from clients. We also had a memorandum ready outlining the impact of Brexit on the status of the UK in the WTO and on the form a post-Brexit EU-UK relationship could take. 

What, if anything, has changed in the EU trade and customs market since the referendum?

Interest in firms that have a well-established trade and customs practice has grown tremendously. This translates in increased requests for advice and opinions from clients, governments and the media.

In what ways has the referendum result affected client expectations?

Clients expect that firms have the in-house capacity to advise on the impact of Brexit and to offer solutions on how to minimise negative outcomes.

What are the main issues facing your clients in the aftermath of the Brexit vote?

Uncertainty combined with the two-year time frame is by far the main issue. Companies have no clear view on the post-Brexit relationship between the UK and the EU, and cannot prepare for it. Clients are still evaluating various options instead of implementing their chosen strategy for the post-Brexit business environment.

How has the firm’s trade and customs practice taken steps to position itself as a leading choice for clients concerned about the reintroduction of tariffs and customs in the wake of Britain’s formal exit from the EU?

We formed a Brexit task force that combines first-class experts in EU trade and regulatory law, WTO law and public international law. We also recruited new team members specialised in public international law and EU external relations.

How is the practice ensuring that its advice and strategy aligns with the ongoing Brexit process and expected outcome of negotiations between the UK and the EU27?

We are obviously following developments on a daily basis. Also, several of our lawyers are in close contact with the teams supporting the UK and EU negotiators and we have therefore a good feel of what may be the likely outcome of negotiations on specific issues.

How has your longstanding expertise in EU and WTO trade law helped you during the Brexit process so far?

We can immediately assess the legality and political feasibility of a number of proposed solutions. Examples are the possibility of maintaining a soft border with Northern Ireland, the acceptability of a customs union without a common commercial policy, etc.

In what ways do you anticipate the market will change in the coming years?

There is a growing need for specialised knowledge on free trade agreements. Many agreements will either have to be concluded or renegotiated. Due to the comprehensive nature of any future agreement between the UK and the EU, lawyers will need to develop solutions which are both innovative and WTO compatible.

If you could offer one piece of advice to clients expecting significant disruption to their business interests following the UK’s withdrawal from the EU, what would it be?

Develop mitigating strategies starting from the assumption that there will be a hard and disruptive Brexit. Companies need to realise that they have to take action themselves and cannot rely on government assurances that the transition will be smooth and seamless.

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