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Could such a fund perhaps also provide financial assistance to support companies that fall victim to extraterritorial sanctions through no fault of their own - i.e. without any previously foreseeable sanction risk (example: JCPoA)?
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The availability of information for state actors is central to the design and implementation of a reactive anti-coercion instrument. Here, anonymity is a necessary prerequisite for economic operators to share sensitive information. Against this background, consideration should be given to how this confidentiality can be made legally secure. Separation from the requirements of the blocking statute is certainly one of the sufficient conditions in this context. The question therefore arises whether a single European body – an EU resilience office – should collect information on how businesses are affected by extraterritorial sanctions and, in turn, process this data for the protection of economic operators for European measures.
Measures to protect against extraterritorial economic constraints and to enforce geo-economic interests are largely new territory for Europe. The common market and EU foreign trade thrive on open trade. An explicitly horizontal industrial policy – also known as economic order policy or Ordnungspolitik – is one of the cornerstones of our social prosperity and should not be sacrificed to the trend of geopolitical kerfuffle. This makes it all the more important for the EU to find a sensible balance that incentivizes rules-based trade, deters geo-economic escalation, leverages the EU’s economic weight when necessary, and provides for corporate protection. Only in this balance can Europe retain its strategic interdependence with the world.
EU Enforcement Regulation The EU Enforcement Regulation allows the EU under certain conditions to withdraw or suspend concessions made in international trade agreements or to introduce new restrictions (such as tariffs or quotas) in order to protect the Union's trade interests. The original prerequisite for such measures was, among other things, a completed WTO dispute settlement procedure: No measures could be taken without a final WTO ruling.13 Status quo Due to the blockade of the WTO Appellate Body 14 the European Commission on December 12, 2019, presented an amendment to the EU Enforcement Regulation to provide the EU legal framework for enforcing EU rights under the WTO Agreement even if the interim review mechanism (Multi-party interim appeal arbitration arrangement, MPIA)15 is not available and the blocked appellate body prevents the conclusion of the WTO dispute settlement. The aim is to prevent the EU's trading partners from using the paralysis of the Appellate Body to their advantage by undermining the international, rules-
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European Parliamentary Research Service, Review of EU Enforcement Regulation for Trade Disputes, 20 July 2020, <https://www.europarl.europa.eu/RegData/etudes/BRIE/2020/652021/EPRS_BRI(2020)652021_EN.pdf>. 14 Since December 11, 2019, the Appellate Body (AB) of the World Trade Organization's dispute settlement mechanism is no longer able to act, as the United States are preventing the necessary replacement of AB members. This means that WTO dispute settlement cases cannot be brought to a final conclusion. Even with the election of Joe Biden as the new U.S. President, it is not clear whether and when the United States will abandon this blockade. 15 The MPIA is an independent, two-tier dispute settlement system based on WTO law that was created in the wake of the WTO Appellate Body blockade. In addition to the EU, more than 20 other WTO members have joined. The MPIA is to be available until the WTO Appellate Body is able to function again. 14
