Common use of SACU Clause in Contracts

SACU. In its preliminary objections, SACU contended that a number of claims and arguments put forward by the EU in its First Written Submission went beyond the claims that were set out in the EU’s REP,164 in alleged breach of Article 79(2) EPA.165 94. In particular, SACU argued that Article 79(2) EPA166 requires a party to identify the measure allegedly in breach of the EPA; since the EU only challenged the safeguard duty imposed in July 2018, ▇▇▇▇ says, it cannot extend the scope of the arbitration to other measures, and in particular to the investigation undertaken by ITAC, which underpins the safeguard measure at issue.167 SACU thus continued that the following four claims and arguments from the EU are beyond the scope of these arbitral proceedings: 161 The Arbitration Panel has taken note of SAPA’s contention that this dispute was moot (SAPA-AC, section 5). It is true that the safeguard measure expired on 11 March 2022, before the Arbitration Panel sent its Interim Report to the Parties. Yet, while delegates for SACU indicated at the hearing that the customs union had “no intention of renewing [the safeguard measure] at the moment” (Tr., 10:14-15), as they are entitled to do under the Article 34(6)(b) EPA, they made “no commitment not to renew [it]” either (ibid., at 16-18) – meaning that the validity of the measure remains at stake. Besides, the Parties disagree that the dispute is moot, and seek the Arbitration Panel’s decision on a number of questions (SACU-AC, at 6; EU-PHS, at 21). Finally, some issues (such as, e.g., the EU’s request for a refund, decided infra, at 373) remain pending, necessitating a determination as to the validity of the safeguard measure, irrespective of whether it might be renewed or not. For these reasons, the Arbitration Panel rejects the contention that the dispute is moot. 162 Supra, at 16. 163 Email from the Arbitration Panel to the Parties dated 11 February 2022. At the hearing, ▇▇▇▇ said it was “content that the Panel rule on the jurisdictional issues in its final report”: see SACU-OS, at 18. 164 Exh. EU-5, which SACU refers to as the “EU Arbitration Panel Request”. 165 SACU-PO, at 8. 166 Quoted supra, at 50. 167 SACU-PO, at 8-11. See also SACU-AC, at 11: “SACU does not dispute that it came to the view that the Measure at Issue was justified under Article 34 of the EU-SADC EPA on the basis of the findings