2. Each Party shall, subject to the availability of resources, perform customs controls and procedures outside the designated business hours or outside the premises of the competent customs offices if so requested by a trader for a valid reason. Any related fee or charge shall be limited to the approximate cost of the services rendered.
Article 53. Risk Management
1. Each Party shall determine which persons, goods, or means of transport are to be examined and the extent of the examination, based on risk management.
2. In identifying and addressing risks related to the entry, exit, transit, transfer or end-use of goods moved between the customs territories of the Parties, or to the presence of goods that are not in free circulation, the Parties shall systematically apply objective risk management procedures and practices.
3. Each Party's border procedures related to customs controls and international trade, including its documentary examinations, physical examinations or post-audit examinations, shall be on a scientific basis and not be more onerous than necessary to limit its exposure to the risks referred to in paragraph 2.
Article 54. Advance Rulings
1. The customs authority of each Party shall issue, free of charge, a binding, written advance ruling, in a reasonable, time-bound manner, prior to the importation of a good into its customs territory, at the written request containing all necessary information, on an application of the exporter, importer, or any person with a justifiable cause or a representative thereof (1), with respect to:
(a) origin of a good;
(b) tariff classification of a good; and
(c) such other matters as the Parties may agree.
2. A Party that declines to issue an advance ruling shall promptly notify the applicant in writing, setting forth the basis for its decision to decline to issue the advance ruling.
3. Each Party shall provide that an advance ruling shall be valid from the date it is issued, or another date specified in the advance ruling, provided that the laws, regulations, administrative rules, and the facts or circumstances, on which the advance ruling is based remain unchanged.
4. The customs authority of the importing Party may revoke or invalidate an advance ruling, on certain conditions in accordance with its domestic laws and regulations.
5. Each Party shall endeavour to make information on advance rulings, which it considers to be of significant interest to other traders, publicly available, taking into account the need to protect confidential information.
Article 55. Authorized Economic Operator System
The rights and obligations of the Parties in respect of the Authorized Economic Operators System shall be governed by the Agreement between the Government of the Republic of Serbia and the Government of the Peopleâs Republic of China regarding mutual recognition of the AEO programme of the Customs Administration of the Ministry of Finance of the Republic of Serbia and the enterprise credit management programme of the General Administration of Customs of the Peopleâs Republic of China.
Article 56. Customs Brokers
The customs systems and procedures of each Party shall enable exporters and importers to submit their customs declaration without requiring recourse to customs brokers.
Article 57. Fees and Charges
1. Each Party shall ensure, in accordance with paragraph 1 of Article VII of the GATT 1994, that all fees and charges of whatever character (other than customs duties, charges equivalent to an internal tax or other internal charge applied consistently with paragraph 2 of Article HI of the GATT 1994, and anti-dumping and countervailing duties) imposed on or in connection with import or export are limited in amount to the approximate cost of services rendered and do not represent an indirect protection to domestic goods or a taxation on imports or exports for fiscal purposes.
2. Each Party shall publish information on fees and charges. The Parties shall endeavor to publish this information on the Internet. Such information may include the type of the fee or charge, the fees and charges that will be applied and the way they are calculated.
3. Upon request, a Party shall provide information on fees and charges applicable to imports of goods into that Party.
Article 58. Penalties
Each Party shall adopt or maintain measures that allow for the imposition of administrative penalties and, where appropriate, criminal sanctions for violations of its customs laws and regulations, including those governing tariff classification, customs valuation, rules of origin, and claims for preferential tariff treatment under this Agreement.
Article 59. Temporary Admission of Goods
1. Each Party shall allow temporary admission of goods in accordance with international standards that the Party committed and the Partyâs domestic laws and regulations.
2. For the purposes of this Article, âtemporary admissionâ means customs procedures under which certain goods may be brought into a customs territory conditionally relieved from payment of customs duties. Such goods must be imported for a specific purpose, and must be intended for re-exportation within a specified period and without having undergone any change except normal depreciation due to the use made of them.
Article 60. Inward and Outward Processing
1. Each Party shall allow temporary importation and exportation for inward processing and outward processing of goods in accordance with international standards that the Party committed and the Partyâs domestic laws and regulations.
2. For the purposes of this Article:
(a) "inward processing" means customs procedures under which certain goods can be brought into a customs territory conditionally relieved from payment of customs duties on the basis that such goods are intended for manufacturing, processing or repair and subsequent exportation, and
(b) "outward processing" means customs procedures under which certain goods, which are in free circulation in a customs territory, may be temporarily exported for manufacturing, processing or repair abroad and then re-imported with total or partial exemption from customs duties.
Article 61. Border Agency Cooperation
Each Party shall ensure that its authorities and agencies involved in border and other import and export controls cooperate and coordinate their procedures in order to facilitate trade.
Article 62. Review and Appeal
Each Party shall, in accordance with its laws and regulations, provide that the importer, exporter, or any other person affected by those administrative determinations or decisions concerning customs issues, have access to:
(a) a level of administrative review of determinations or decisions by its customs administration, independent of the official or office responsible for the decision under review; and
(b) judicial review of the administrative determinations or decisions subject to its laws and regulations.
Article 63. Confidentiality
All information provided in relation with the importation, exportation, advance rulings or transit of goods shall be treated as confidential by the Parties and shall be covered by the obligation of professional secrecy, in accordance with the respective laws of each Party. Such information shall not be disclosed by the authorities of a Party without the express permission of the person or authority providing it.
Article 64. Cooperation and Consultation
1. The Parties may identify, and submit to the Joint Committee for consideration, additional measures with a view to facilitating trade between them.
2. The Parties shall promote international cooperation in relevant multilateral fora on trade facilitation. The Parties shall review relevant international initiatives in order to identify, and may submit to the Joint Committee for consideration, further areas where joint action could contribute to their common objectives.
3. The customs authorities of the Parties shall provide mutual administrative cooperation to ensure the proper application of customs law, the review of customs procedures, the prevention, investigation, and combating of customs offenses as to achieve a satisfactory balance between effective control and facilitation.
4. The customs authorities of the Parties shall push forward cooperation based on âSmart Customs, Smart Borders, and Smart Comnectivityâ in order to enhance mutual trust and promote trade facilitation to achieve a high level connectivity between the Parties.
5. Either Party may request consultations on matters arising from the operation or implementation of this Chapter. Such consultation shall be conducted through the relevant contact points of the respective customs authority. Information on the contact points shall be provided to the other Party and any amendment of the said information shall be notified promptly.
Chapter 5. PROTECTION OF INTELLECTUAL PROPERTY
Article 65. Protection of Intellectual Property
1. For the purpose of this Agreement the intellectual property shall mean intellectual property as defined in Article 1 of Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as "TRIPS Agreement").
2. The Parties recognize the importance of protection of intellectual property rights, and shall ensure an adequate and effective implementation of the international treaties dealing with intellectual property to which they are parties. The Parties which are party to the TRIPS Agreement reaffirm their obligations set out therein. The Parties which are not party to the TRIPS Agreement shall follow the principles of the TRIPS Agreement.
3. Each Party shall accord to the nationals of the other Party treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property subject to the provisions and exceptions provided in Article 3 and Article 5 of the TRIPS Agreement.
4. Each Party shall accord to the nationals of the other Party treatment no less favourable than that it accords to the nationals of any other country with regard to the protection of intellectual property in accordance with the provisions of the TRIPS Agreement in particular Articles 4 and 5 thereof.
5. The Parties shall endeavor to ensure in their respective laws and regulations provisions for enforcement of intellectual property rights at the same level as provided for in Articles 41 through 50 of the TRIPS Agreement, so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement.
6. The Parties shall co-operate in matters of intellectual property. Upon request of a Party, they shall hold consultations of experts on these matters, in particular with respect to activities, relating the existing or to future international conventions on the harmonization, administration and vindication of intellectual property rights and on activities in international organizations, such as the WTO, World Intellectual Property Organization (WIPO), as well as concerning the relations of the Parties with third parties with respect to the intellectual property matters.
7. If problems in the area of intellectual property protection affecting trading conditions were to occur, urgent technical consultations shall take place in the Joint Committee at the request of a Party, with a view to reaching mutually satisfactory solutions. Technical consultations may be conducted via any means mutually agreed by the Parties.
Chapter 6. INVESTMENT AND SERVICES
Article 66. Investment Promotion
The Parties recognize the importance of promoting crossborder investment and technology flows as a means for achieving economic growth and development. Cooperation in this respect may include:
(a) identifying investment opportunities;
(b) exchange of information on measures to promote investment abroad;
(c) exchange of information on investment regulations;
(d) assistance of investors to understand the investment regulations and the investment environment in both Parties; and
(e) the furthering of a legal environment conducive to increased investment flows.
Article 67. Facilitation of Investment
1. Subject to its laws and regulations, each Party shall facilitate investments from the other Party through, among others:
(a) improving transparency and efficiency of their domestic investment environment;
(b) creating the necessary environment for all forms of investment;
(c) simplifying availability of information on procedures for investment applications and approvals;
(d) promoting the dissemination of investment information, including, but not limited to, investment rules, regulations, policies and procedures; and
(e) enhancing one-stop investment arrangement in the respective host Parties to provide assistance and advisory services to the business sectors including facilitation of operating licenses and permits.
2. Subject to the domestic laws and regulations, the Party shall make available the measures prescribing the formalities of establishing an investment to investors and their investments of the other Party. The Party shall protect any confidential business information from any disclosure that would prejudice the competitive position of the investor or the investment. Nothing in this paragraph shall be construed to prevent a Party from otherwise obtaining or disclosing information in connection with the equitable and good faith application of its domestic law.
Article 68. Trade In Services
1. The Parties shall aim at achieving gradual liberalization and the opening of their markets for trade in services in accordance with the provisions of the General Agreement on Trade in Services (hereinafter referred to as "the GATS"), taking into account ongoing work under the auspices of the WTO.
2. If a Party grants to a third party, after the entry into force of this Agreement, additional benefits with regard to the access to its services markets, it shall afford adequate opportunities for negotiations with a view to extending these benefits to the other Party on a reciprocal basis.
3. The Parties undertake to keep under review paragraphs 1 and 2 with a view to establishing an agreement liberalizing trade in services between them in accordance with Article V of the GATS.
Article 69. Non-Application of Dispute Settlement
No Parties shall have recourse to Chapter 9 (Dispute Settlement) for any issue arising from or relating to this Chapter.
Chapter 7. INSTITUTIONAL PROVISIONS
Article 70. The Joint Committee
1. The Parties hereby establish the Serbia-China FTA Joint Committee. It shall be composed of representatives of the Parties, which shall be headed by senior officials delegated by them for this purpose.
2. The Joint Committee shall:
(a) supervise and review the implementation of this Agreement, inter alia by means of a comprehensive review of the application of the provisions of this Agreement, with due regard to any specific reviews stipulated in this Agreement;
(b) keep under review the possibility of further removal of barriers to trade and other restrictive measures concerning trade between the Parties;
(c) oversee the further development of this Agreement;
(d) supervise the work of all sub-committees and working groups established under this Agreement;
(e) endeavour to resolve disputes that may arise regarding the interpretation or application of this Agreement; and
(f) consider any other matter that may affect the operation of this Agreement (2).
3. The Joint Committee may decide to set up such sub-committees and working groups as it considers necessary to assist it in accomplishing its tasks. Except where otherwise provided for in this Agreement, the sub-committees and working groups shall work under a mandate established by the Joint Committee.
4. The Joint Committee shall take decisions as provided for in this Agreement, and may make recommendations, by consensus.
5. The Joint Committee shall meet within one year of the entry into force of this Agreement. Thereafter, it shall meet whenever necessary upon mutual agreement but normally every two years. Its meetings shall be chaired jointly. The Joint Committee shall establish its rules of procedure.
6. Each Party may request at any time, through a notice in writing to the other Party, that a special meeting of the Joint Committee be held. Such a meeting shall take place within 30 days of receipt of the request, unless the Parties agree otherwise.
7. The Joint Committee shall, in accordance with Article 90 (Amendments) consider proposals for any amendments to this Agreement submitted by a Party and recommend to the Parties amendments for adoption.
Article 71. Contact Points
For the purpose of facilitating communication between the Parties on any matter covered by this Agreement, the Parties shall designate and duly update the administrative entities responsible for foreign trade to serve as contact points.
Chapter 8. COMPETITION
Article 72. Rules of Competition Concerning Undertakings
1. Each Party understands that proscribing anticompetitive business conduct and implementing competition policies contribute to preventing the benefits of trade and investment liberalization from being undermined and to promoting economic efficiencies, fair competition and consumer welfare.
The Parties agree that anti-competitive business practices means business conduct or transactions that adversely affect competition in the territory of a Party, such as:
(a) all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition;
(b) abuse by one or more undertakings of a dominant position in the territory of a Party as a whole or in a part thereof; and
(c) concentrations between undertakings, which significantly restrict, distort or prevent competition in the territory of a Party, and especially if that restriction, distortion or prevention is the result of creating or strengthening of a dominant position.
2. The provisions of paragraph 1 shall apply to the activities of public undertakings and undertakings for which the Parties grant special or exclusive rights, in so far as the application of these provisions does not prevent the performance, in law or in fact, of the particular public tasks assigned to them.
3. The provisions of paragraphs 1 and 2 shall not be construed to create any direct obligations for undertakings.
4. No Party shall have recourse to dispute settlement under Chapter 9 (Dispute Settlement) for any matter arising under this Article.
5. All the terms and definitions used in this Article, as well as any references to procedure, shall be construed in accordance with the relevant national laws and regulations of the Parties.
Chapter 9. DISPUTE SETTLEMENT
Article 73. Scope and Coverage
Unless otherwise provided in this Agreement, wherever a Party considers that a measure of the other Party is inconsistent with the rights and obligations of this Agreement, the dispute settlement provisions of this Chapter shall apply.
Article 74. Choice of Forum
1. Where a dispute regarding any matter arises under this Agreement and under another free trade agreement to which both Parties are parties, including WTO Agreement, the complaining Party may select the forum in which to settle the dispute.
2. Once the complaining Party has requested a panel under an agreement referred to in paragraph 1, the forum selected shall be used to the exclusion of the others.
Article 75. Consultations
1. In case of any divergence with respect to the interpretation, implementation and application of this Agreement, the Parties shall make every attempt through cooperation and consultations to arrive at a mutually satisfactory solution.
2. Each Party may request in writing consultations with the other Party regarding any measure which is found to be inconsistent with the rights and obligations of this Agreement. The request for consultations shall set out the reasons for the request, including identification of the measure at issue and a brief summary of the legal basis for the complaint. The other Party shall reply to the request within 10 days after the date of its receipt.
3. The consultations shall take place in the Joint Committee if a Party so requests within 30 days from the receipt of the notification referred to in paragraph 2, with a view to finding a commonly acceptable solution. Consultations on urgent matters shall commence within 15 days from the receipt of the request for consultations. If the Party to which a request is made in accordance with paragraph 2 does not reply within 10 days or does not enter into consultations within 30 days after the receipt of the request, or within 15 days for urgent matters,the Party making the request is entitled to request the establishment of an arbitration panel in accordance with Article 77 (Establishment of Arbitration Panel).
4. The consultations shall be confidential and are without prejudice to the rights of either Party in any further proceedings.
Article 76. Good Offices, Conciliation or Mediation
1. Good offices, conciliation and mediation are procedures that are undertaken voluntarily if the Parties so agree. They may begin and be terminated at any time. They may continue while procedures of an arbitration panel established in accordance with this Chapter are in progress.
2. Proceedings involving good offices, conciliation and mediation shall be confidential and without prejudice to the Parties' rights in any other proceedings.
Article 77. Establishment of Arbitration Panel
1. Disputes between the Parties relating to the interpretation of rights and obligations under this Agreement, which have not been settled through direct consultations or in the Joint Committee within 60 days , or 30 days in relation to urgent matters, from the date of the receipt of the request for consultations, may be referred to arbitration by the complaining Party by means of a written notification addressed to the Party complained against.
2.The request for arbitration shall identify the specific measure at issue and provide a brief summary of the legal basis of the complaint.
3. The arbitration panel shall comprise three members. Within 25 days of the receipt of the notification referred to in paragraph 1, each party shall appoint one member. The two members already appointed shall agree on the appointment of the third member within 30 days of the appointment of the second member. The third member shall not be a national of the Parties, nor permanently reside in the territory of any of the Parties. The member thus appointed shall be the Chair of the arbitration panel.
4. If any member of the arbitration panel has not been designated within 55 days after the receipt of the written request for arbitration in accordance with paragraph 1, at the request of any Party to the dispute, the Director General of the WTO is expected to designate a member within a further 30 days. In the event that the Director General of the WTO is a national of any Party or unable to perform this task, the Deputy Director General of the WTO who is not a national of any Party shall be requested to perform such task. If the Deputy Director General of the WTO is unable to perform this task as well, the President of the Permanent Court of Arbitration (PCA) shall be requested to perform this task.
All panelists shall:
(a) have expertise or experience in law, international trade or the resolution of disputes arising under international trade agreements and, if possible, have expertise in the matter covered by the dispute;
(b) be chosen strictly on the basis of objectivity, reliability, and sound judgement;
(c) be independent of and not be affiliated with or take instructions from any Party;
(d) comply with a code of conduct in conformity with the relevant rules established in the document WT/DSB/RC/1 of the WTO.
5. If a panelist appointed under this Article resigns or becomes unable to act, a successor panelist shall be appointed within 15 days in accordance with the selection procedure as prescribed for the appointment of the original panelist and the successor shall have all the powers and duties of the original panelist. The work of the arbitration panel shall be suspended during the appointment of the successor panelist.
Article 78. Functions of Arbitration Panel
1. The arbitration panel shall make an objective assessment of the dispute before it, including an examination of the facts of the case and the applicability of and conformity of this Agreement. The decision of the arbitration panel shall be final and binding upon the Parties to the dispute.
2. Where an arbitration panels concludes that a measure is inconsistent with this Agreement, it shall recommend that the responding Party bring the measure into conformity with this Agreement.
3. The arbitration panel shall make its decision based on the provisions of this Agreement applied and interpreted in accordance with the rules of interpretation of public international law.
4. The arbitration panel, in their findings and recommendations, cannot add to or diminish the rights and obligations provided in this Agreement.
Article 79. Rules of Procedure
1. Unless the Parties agree otherwise, the arbitration panel proceedings shall be conducted in accordance with the Rules of Procedure set out in Annex 5 (Rules of Procedure of Arbitration Panel). These Rules and any time frames specified in this Chapter may be amended by the Joint Committee.
2. Unless the Parties otherwise agree within 30 days from the date of receipt of the request for arbitration in accordance with paragraph 1, its terms of reference shall be:
"To examine, in the light of the relevant provisions of this Agreement, the matter referred to in the request for the establishment of an arbitration panel pursuant to Article 77 (Establishment of Arbitration Panel) and to make findings of law and fact together with the reasons therefor, for the resolution of the dispute."
3. The arbitration panel shall strive to take its decisions by consensus. If it is unable to reach consensus, it may take its decisions by majority vote. Panelists may furnish separate opinions on matters not unanimously agreed. The arbitration panel may not disclose which members are associated with majority or minority opinions.
4. At the request of the either Party or on its own initiative, the arbitration panel may seek scientific information and technical advice from experts as it deems appropriate.
5. The expenses of the arbitration panel, including the remuneration of its members, shall be borne by the Parties to the dispute in equal shares.
Article 80. Suspension or Termination of Proceedings
1. The Parties may agree that the arbitration panel suspends its work at any time for a period not exceeding 12 months from the date of such agreement. If the work of the arbitration panel has been suspended for more than 12 months, the authority for establishment of the arbitration panel shall lapse unless the Parties agree otherwise.
2. The Parties may agree to terminate the proceedings of an arbitration panel.
Article 81. Report of Arbitration Panel
1. The report of the arbitration panel shall be drafted without the presence of the Parties in the light of the information provided and the statements made to the arbitration panel.
2. In order to enable the Parties to have an opportunity for review and comment, the arbitration panel shall present the Parties its initial report within 90 days of the tribunal's formation setting out its findings of facts and its determination as to whether a disputing Party has conformed with its obligations under this Agreement. In exceptional cases, if the arbitration panel considers it cannot release its initial report within 90 days, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will issue its report. Any delay shall not exceed a further period of 30 days, unless the Parties otherwise agree.