Article 7.8. Remedial Measures
1. If no mutually satisfactory solution subsequent to consultations under paragraphs 6 to 12 of Article 7.7 has been found and the grace period has elapsed without having achieved the shared objectives under paragraph 3 of Article 7.1, India may, notwithstanding any other provision under this Agreement, within 1 year, undertake temporary and proportionate remedial measures to rebalance the concessions given to the EFTA States in the Schedule of Commitments under the Chapter on Trade in Goods.
2. India shall notify the EFTA States of the remedial measures it intends to take, the grounds for such remedial measures and when they will commence, no later than 30 days before the date on which the remedial measures are due to take effect.
3. Remedial measures shall be temporary and shall be:
(a) terminated once the shared objectives set out in paragraph 3 of Article 7.1 have been achieved; or
(b) modified or terminated pursuant to: (i) a mutually agreed solution between the Parties to such effect; or (ii) a decision to such effect pursuant to paragraph 4.
4. If remedial measures continue beyond 3 years, a Party may request the Joint Committee to examine whether the remedial measures should be modified or terminated. Such request shall include the requesting Party's grounds for modification or termination of remedial measures. The Joint Committee shall begin consultations on such a request no later than 30 days from the receipt of such a request. The Joint Committee shall aim to find a mutually agreed solution within 6 months from the request by the Party. If the Joint Committee cannot tesolve the matter within 6 months, the same shall be referred to the representatives of the EFTA States and India at the level of Ministers. If the Joint Committee or the representatives at the level of Ministers recommend modification or termination of the remedial measures, the measures necessary to modify or terminate shall be taken within the agreed time period in accordance with the recommendation. Unless the remedial measures are terminated, the Joint Committee shall thereafter examine the continuation or modification of the remedial measures at a 2-year interval, following the same procedure, until the remedial measures have ceased to apply.
Chapter 8. PROTECTION OF INTELLECTUAL PROPERTY
Article 8.1. Protection of Intellectual Property
1. The Parties shall provide for adequate, effective and non-discriminatory protection of intellectual property rights, and enforcement of such rights against infringement, counterfeiting and piracy, in accordance with the provisions of this Article, and Annex 8.A (Protection of Intellectual Property) to this Agreement, including the objectives specified under Article 7 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, set out in Annex IC to the WTO Agreement (hereinafter referred to as the "TRIPS Agreement").
2. The Parties shall accord to each other's nationals, treatment no less favourable than that they accord to their own nationals. Exemptions from this obligation must be in accordance with the substantive provisions of Articles 3 and 5 of the TRIPS Agreement.
3. The Parties shall grant to each other's nationals, treatment no less favourable than that accorded to nationals of any other State. Exemptions from this obligation must be in accordance with the substantive provisions of the TRIPS Agreement, in particular Articles 4 and 5 thereof.
4. The Parties agree to discuss and aim to resolve, within the mandate of the Joint Committee set out in Article 13.1, issues relating to the implementation or application of this Chapter and Annex 8.A, with a view to avoiding or remedying trade distortions.
Chapter 9. GOVERNMENT PROCUREMENT
Article 9.1. Government Procurement
1. Recognising the importance of government procurement in furthering the expansion of production and trade so as to promote growth and employment, the Parties shall enhance mutual understanding of their government procurement laws, regulations, and agreements.
2. The following contact point shall serve to facilitate communication between the Parties on any matter regarding government procurement:
(a) for India: FT (Europe) Division, Department of Commerce, Ministry of Commerce and Industry; and
(b) for the EFTA States: the EFTA Secretariat.
3. The Parties shall review this Article in the Joint Committee within 3 years from the entry into force of this Agreement, and examine the possibility of developing and deepening their cooperation under this Agreement.
Chapter 10. COMPETITION
Article 10.1. Anticompetitive Behaviour Affecting Trade
1. The following practices of enterprises are incompatible with the proper functioning of this Agreement in so far as they may adversely affect trade between an EFTA State and India:
(a) agreements between enterprises, decisions by associations of enterprises and concerted practices between enterprises which have as their object or effect the prevention, restriction or distortion of competition; and
(b) abuse by one or more enterprises of a dominant position in the territory of a Party.
2. The provisions of paragraph 1 shall also apply to the activities of public enterprises, and enterprises to which the Parties grant special or exclusive rights, in so far as the application of these provisions does not obstruct 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 so as to create any direct obligations for enterprises.
Article 10.2. Cooperation
1. The Parties involved may, through their competent authorities, cooperate in their dealings with anticompetitive practices as outlined in paragraph 1 of Article 10.1, with the aim of putting an end to such practices or their adverse effects on trade. Cooperation may include exchange of non-confidential information that is available to the Parties.
2. The Parties may engage in cooperation activities on general matters of competition law and policy. Upon request of a Party, the requested Party may make available to the requesting Party public information concerning its competition laws and related enforcement activities.
Article 10.3. Consultations
1. Upon request of a Party, the Parties may enter into consultations regarding any matter arising under this Chapter, including the effects of the practices outlined in paragraph 1 of Article 10.1 on trade. In its request, the Party shall submit all relevant non-confidential information to discuss this matter, and if relevant, how such a practice affects trade between the Parties.
2. To facilitate discussion of the matter that is the subject of the consultations, each Party may provide relevant non-confidential information to the Joint Committee.
Article 10.4. Non-Application of Dispute Settlement
No Party shall have recourse to Chapter 12 (Dispute Settlement) for any matter arising under this Chapter.
Article 10.5. Review
The Parties may review the provisions of this Chapter 2 years from the entry into force of this Agreement.
Chapter 11. TRADE AND SUSTAINABLE DEVELOPMENT
Article 11.1. Scope, Context and Objectives
1. Recalling the Rio Declaration on Environment and Development and the Agenda 21 adopted by the United Nations Conference on Environment and Development in Rio de Janeiro on 14 June 1992, the Johannesburg Declaration on Sustainable Development and its Plan of Implementation adopted in Johannesburg on 4 September 2002, the International Labour Organization (hereinafter referred to as "ILO") Declaration on Fundamental Principles and Rights at Work (1998) adopted by the International Labour Conference at its 86th Session in Geneva on 18 June 1998, as amended in 2022 (hereinafter referred to as "ILO Declaration on Fundamental Principles and Rights at Work"), the Ministerial Declaration on Generating Full and Productive Employment and Decent work for all and its Impact on Sustainable Development adopted by the United Nations Economic and Social Council of 2006, in Geneva on 5 July 2006, the ILO Declaration on Social Justice for a Fair Globalization (2008) adopted by the International Labour Conference at its 97th Session in Geneva on 10 June 2008, as amended in 2022, the Outcome Document of the UN Conference on Sustainable Development of 2012 entitled "The Future We Want" endorsed by the UN General Assembly Resolution 66/288 adopted on 27 July 2012 (hereinafter referred to as âthe RIO+20 Outcome Document "The Future We Want"), the UN 2030 Agenda for Sustainable Development, adopted by the UN General Assembly Resolution 70/1 on 25 September 2015 and its Sustainable Development Goals and the multilateral environmental agreements to which the Parties are party, the Parties reaffirm their commitment to pursue the objective of sustainable development, whose pillars, economic development, social development and environmental protection are mutually supportive, interdependent and essential requirements of sustainable development.
2. The Parties agree to promote international trade in such a way as to contribute towards sustainable development for eradicating poverty and hunger, including towards broad-based, sustained and inclusive economic growth, social development and environmental protection, and to work to integrate and reflect this objective in their trade relationship.
3. Accordingly, the Parties emphasise that it is their aim to strengthen their trade relations and cooperation in ways that promote sustainable development, and it is not their intention in this Chapter to harmonise the labour or environment standards of the Parties.
4. For the purposes of this Chapter, for India, "laws and regulations" mean an Act of the Parliament of India or delegated legislation framed pursuant to an Act of the Parliament of India, which is enforceable by action of the Central or Union level of Government.
Article 11.2. Right to Regulate and Upholding-Levels of Protection
1. Recognising the right of each Party, in a manner consistent with the provisions of this Chapter, to set its domestic sustainable development policies and priorities, to establish its own levels of labour and environmental protection, and to adopt or modify accordingly its relevant laws and policies, each Party shall seek to ensure that its laws, policies and practices provide for and encourage achieving sustainable development objectives.
2. The Parties are committed not to derogate from or, through a sustained or recurring course of action or inaction, fail to effectively enforce their respective environmental and labour laws in a manner affecting trade between the Parties.
3. The Parties stress that environmental and labour measures shall not be applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties or a disguised restriction on trade.
4. The Parties recognise the value of international agreements on labour and the environment as means to address global and regional environmental and social challenges. In this context, the Parties stress that neither labour nor environmental issues shall be used for protectionist trade purposes. The Parties note that their comparative advantage should in no way be called into question.
Article 11.3. Promoting Environmentally Sustainable and Inclusive Growth
1. The Parties recognise that trade should contribute towards broad-based, sustainable and inclusive growth, which is necessary to alleviate poverty, raise standards of living, ensure full employment and a large and steadily growing volume of real income and effective demand, and expand the production of and trade in goods and services.
2. The Parties acknowledge the importance of incorporating a gender perspective in the promotion of inclusive economic development and that gender-responsive policies are key elements to enhance the participation of all in the economy and international trade in order to achieve sustainable economic growth.
3. The Parties reaffirm their commitment to implement the international agreements pertaining to gender equality or non-discrimination to which they are a party.
4. The Parties further recognise that in accordance with the objective of sustainable development, they shall allow for the optimal use of the world's resources, seeking both to protect and preserve the environment, and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development.
5. In this regard, the Parties recall that the Rio+20 Outcome Document "The Future We Wantâ" provides sufficient flexibility and policy space for the Parties to make their own choices out of a broad menu of options and define their paths towards sustainable development based on each Party's stage of development, national circumstances and priorities.
6. Recognising the importance of cooperation and supportive measures, the Parties reaffirm their commitment to implement their respective commitments regarding cooperation and supportive measures, such as financial, technological, technical or capacity building support, as relevant, under the international agreements referred to in this Chapter.
Article 11.4. Multilateral Environmental Agreements
1. The Parties reaffirm their adherence to the principles reflected in the international environmental instruments referred to in Article 11.1.
2. The Parties reaffirm their commitment to implement the multilateral environmental agreements to which they are a party.
Article 11.5. Climate Change
1. The Parties recognise the importance of achieving the objectives and goals of the United Nations Framework Convention on Climate Change, done at New York on 09 May 1992 (hereinafter referred to as "UNFCCC") and the Paris Agreement, done at Paris on 12 December 2015, in order to address the urgent threat of climate change, based on best available science and reflecting the principles of the UNFCCC and the Paris Agreement, including equity and the principle of common but differentiated responsibilities and respective capabilities, in light of different national circumstances.
2. The Parties reaffirm their commitment to implement their respective obligations and commitments under the UNFCCC and the Paris Agreement.
3. Pursuant to paragraph 1, the Parties shall endeavour to cooperate bilaterally, and in other fora, as appropriate.
Article 11.6. International Labour Organisation Standards
1. The Parties, in accordance with their obligations as members of the ILO and the ILO Declaration on Fundamental Principles and Rights at Work, commit to respect, promote and realise, in good faith, the fundamental principles and rights at work embodied in the fundamental ILO Conventions, namely:
(a) freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour;
(d) the elimination of discrimination in respect of employment and occupation; and
(e) a safe and healthy working environment.
2. The Parties affirm their commitment to effectively implement in their laws and ptactices the ILO Conventions which they have respectively ratified. The Parties will make efforts towards ratifying the fundamental ILO Conventions in a promotional and flexible manner without time limits and according to the ILO Declaration on Social Justice for a Fair Globalization of 2008.
Article 11.7. Cooperation, Information Exchange and Experience Sharing on Trade and Sustainable Development
In view of the objectives set out in Article 11.1, the Parties agree to enhance their cooperation in exchanging information and experiences in areas of mutual interest, such as:
(a) best practices relating to corporate social responsibility;
(b) relevant aspects of the ILO Decent Work Agenda, such as labour statistics, and labour market developments;
(c) identifying and addressing skill gaps;
(d) human resources development, lifelong learning, skilling, upskilling and re-skilling to facilitate a just transition and decent work in accordance with the ILO Guidelines on a Just Transition towards environmentally sustainable economies and societies for all adopted by the Tripartite Meeting of Experts in Geneva on 5 to 9 October 2015;
(e) best practices in promoting integrated and sustainable management of natural resources and ecosystems, including conservation and sustainable use of biodiversity;
(f) best practices to promote sustainable consumption and production patterns;
(g) cooperation between enterprises in relation to goods, services and technologies that contribute to sustainable development;
(h) policy frameworks conducive to the deployment of best available technologies for sustainable development, including with regard to the promotion of eco-innovation, research activities, dissemination of results, and efforts to ensure that such technologies are available in public domain and are accessible at affordable prices; or
@ regulatory frameworks to promote sustainable renewable energy and resource and energy efficient products and services.
Article 11.8. Cooperation In International Fora
The Parties shall strive to strengthen their cooperation on labour and environmental issues of mutual interest in relevant bilateral, regional and multilateral fora in which they participate.
Article 11.9. Contact Points
1. Each Party shall designate a contact point responsible for coordinating implementation of this Chapter.
2. Each Party shall provide the other Parties with the contact details of its contact points and shall promptly notify the other Parties of any change in contact point.
Article 11.10. Security Exception
Nothing in this Chapter shall be construed to prevent the Parties from taking any action or not disclosing any information that it considers necessary for the protection of its essential domestic security interests.
Article 11.11. Non-Application of Dispute Settlement
No Party shall have recourse to Chapter 12 (Dispute Settlement) for any matter arising under this chapter.
Article 11.12. Sub-Committee on Sustainability
1. The Parties hereby establish a Sub-Committee on Sustainability (hereinafter referred to as “Sustainability Sub-Committee”), composed of government representatives of the Parties.
2. The Sustainability Sub-Committee shall meet within one year of the entry into force of this Agreement, and thereafter as mutually agreed.
3. The Sustainability Sub-Committee shall:
(a) monitor and review the implementation and operation of this Chapter;
(b) discuss, facilitate, and monitor areas and means of cooperation and supportive measures, as appropriate, under this Chapter;
(c) report to the Joint Committee with respect to its activities, as mutually agreed; and
(d) perform any other functions the Parties may decide.
4. The Sustainability Sub-Committee shall be chaired jointly by an EFTA State and India and may make recommendations, or refer matters, by consensus, to the Joint Committee.
Article 11.13. Consultations
1. The Parties shall at all times endeavour to make every effort through cooperation, dialogue, consultations and exchange of information to address any matter arising under this Chapter.
2. A Party may request consultations (hereinafter referred to as the "requesting party") with another Party (hereinafter referred to as the "responding party") regarding any matter arising under this Chapter by delivering a written request to the responding party's contact point. The requesting party shall set out the reasons for the request and state the matter at issue, to enable the responding party to respond. The other Parties shall be informed that a request for consultations has been submitted.
3. The responding party shall respond to the request in writing no later than 90 days after the receipt of the request. The period for responding to the request may be extended by a further period of 30 days from the request of the responding party.
4. The requesting party and the responding party (hereinafter referred to as the "consulting parties") shall enter into consultations in good faith. Such consultations shall be held between the appropriate government representatives, as respectively designated by the consulting parties.
5. Unless the consulting parties agree otherwise, the consulting parties shall enter into consultations promptly, and no later than 150 days after the receipt of the request by the responding party.
6. Consultations shall take place in the Joint Committee, unless the consulting parties agree otherwise.
7. The consulting parties may agree to seek advice from any expert or body they deem appropriate, to assist them in the consultations.
8. The consulting parties shall make every effort to arrive at a mutually agreed solution to the matter, which may include appropriate cooperative activities.
9. Consultations may be held in person or by other technological means available.
10. Consultations under this Article, the outcomes, and the positions taken by the Parties during such consultations, shall be confidential. Notwithstanding the preceding sentence, the outcome of these consultations shall be made public unless the consulting parties agree otherwise. Where the outcome of consultations is made public, this shall be through a jointly agreed report.
11. Each Parties shall treat as confidential any information exchanged in the consultations which another Party has designated as confidential.
12. Notwithstanding paragraphs 1 to 11, where the matter arising under this Chapter regards compliance with obligations under a multilateral environmental agreement to which the consulting parties are a party, the requesting party should, where appropriate, address the matter through the consultative procedure or other procedures under that multilateral environmental agreement.
Article 11.14. Review
The Parties shall periodically review this Chapter. Each Party may, as appropriate, take into account views expressed by its relevant stakeholders in relation to such review.
Chapter 12. DISPUTE SETTLEMENT
Article 12.1. Scope and Coverage
1. Unless otherwise specified in this Agreement, the provisions of this Chapter shall apply with respect to the avoidance or settlement of disputes between the Parties (11) concerning their rights and obligations under this Agreement.
2. The rules and procedures set out in this Chapter may be waived, varied or modified by mutual agreement between the parties to the dispute.
3. An arbitration panel shall interpret the provisions of this Agreement in accordance with customary rules of interpretation of public international law.
4. The rulings of an arbitration panel cannot add to or diminish the rights and obligations provided for in this Agreement.
5. In a situation where a dispute regarding the same matter is covered within the scope of this Agreement and under the WTO Agreement, the complaining Party may select the forum in which to settle the dispute and such forum selected by the complaining Party shall be used to the exclusion of any other forum for settlement of such a dispute. The complaining Party shall be deemed to have selected a forum when it has requested the constitution of an arbitration panel in accordance with Article 12.4 of this Agreement or by a Party's request for the establishment of a panel under Article 6 of the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes. Before a Party initiates dispute settlement proceedings under the WTO Agreement against another Party, that Party shall notify all other Parties of its intention.
Article 12.2. Good Offices, Conciliation or Mediation
1. The Parties may at any time agree to good offices, conciliation or mediation. They may begin at any time and be terminated by either Party at any time.
2. If the Parties agree, procedures for good offices, conciliation or mediation may continue while the dispute proceeds for resolution before an arbitration panel appointed under this Chapter.
3. All proceedings under this Article shall be confidential and without prejudice to the rights of either Party in any further proceedings under this Chapter or another fora.
Article 12.3. Consultations
1. Each Party shall accord adequate opportunity for consultations regarding any representations made by another Party concerning a dispute referred to in paragraph 1 of Article 12.1.
2. Any request for consultations shall be submitted in writing to the Party complained against and shall give the reasons for the request, including identification of the measures at issue and an indication of the legal basis of the complaint. The complaining Party shall at the same time notify the other Parties in writing thereof.
3. If a request for consultations is made pursuant to this Article, the Party to which the request is made shall reply to the request within 10 days from the receipt and shall enter into consultations within a period of no more than 30 days from the receipt of the request, with a view to reaching a mutually satisfactory solution. Consultations on urgent matters, including those on perishable goods, shall commence within 15 days from the receipt of the request for consultations.
4. The Parties shall make every effort to reach a mutually satisfactory resolution of any matter through consultations. To this end, the Parties shall:
(a) provide sufficient information as may be reasonably available at the stage of consultations to enable a full examination of how the measure might affect the operation of this Agreement; and
(b) treat as confidential any information exchanged in the consultations which the other Parties have designated as confidential.
5. Consultations shall take place in the Joint Committee, unless the Parties making and receiving the request for consultations agree otherwise. The parties to the dispute shall inform the other Parties of any mutually agreed resolution of the matter.
Article 12.4. Establishment of the Arbitration Panel
1. If the consultations referred to in Article 12.3 fail to settle a dispute within 60 days, or 30 days in relation to urgent matters, including those on perishable goods, or if the Party to which the request is made does not reply within 10 days or does not enter into consultations within 30 days, or within 15 days for urgent matters, from the receipt of the request for consultations by the Party complained against, the dispute may be referred to an arbitration panel by means of a written request from the complaining Party to the Party complained against. A copy of this request shall be communicated to the other Parties so that they may determine whether to participate in the dispute.
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. Unless the parties to the dispute otherwise agree within 20 days from the receipt of the request for the establishment of the arbitration panel, the terms of reference for the arbitration panel 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 12.4 and to make findings of law and fact together with the reasons therefor, as well as recommendations, if any, for the resolution of the dispute and the implementation of the ruling."
4. Where more than one Party requests the establishment of an arbitration panel relating to the same matter or where the request involves more than one Party complained against, a single arbitration panel should whenever feasible be established to examine complaints relating to the same matter.
5. A Party which is not a party to the dispute shall be entitled, on delivery of a written notice to the parties to the dispute, to make written submissions to the arbitration panel, receive written submissions, including annexes, from the parties to the dispute, attend hearings and make oral statements.
Article 12.5. Appointment of Members of the Arbitration Panel
1. The arbitration panel shall comprise three members.
2. Within 30 days from the receipt of the request pursuant to Article 12.4, each party to the dispute shall appoint one member of the arbitration panel.
3. The two appointed members shall agree on the appointment of the third member within 30 days of the appointment of the second member. The third member, who shall serve as the chair of the arbitration panel, shall not be a national or permanent resident of, nor be employed or previously have been employed by, either party to the dispute. The date of establishment of the arbitration panel shall be the date on which the chair of the arbitration panel is appointed.
4. If all three members have not been appointed within 60 days from the receipt of the notification referred to in paragraph 2, then within a further period of 30 days, the necessary appointments shall be made by the Director-General of the WTO at the request of any party to the dispute. Where the appointment of the members of the arbitration panel by the Director-General of the WTO is not made within the specified period, the parties to the dispute shall within the next 10 days exchange lists comprising four nominees each, in case the chair of the arbitration panel needs to be selected and a list of four nominees for the selection of their member of the arbitration panel, in case a party to the dispute fails to appoint its member of the arbitration panel.
5. The members of the arbitration panel shall then be appointed in the presence of the parties to the dispute by draw of lot from the lists within 10 days from the exchange of their respective lists. If a party to the dispute fails to submit its list of nominees, the members of the arbitration panel shall be appointed by draw of lot from the list already submitted by the other party to the dispute.
6. All members of the arbitration panel shall have expertise or experience in law, international trade, other matters covered by this Agreement or the resolution of disputes arising under international trade agreements, and shall be chosen strictly on the basis of objectivity, reliability and sound judgment. All members shall be independent of, and not be affiliated with or take instructions from, any Party, nor have dealt with the case in any capacity.
7. Any member of the arbitration panel may be challenged if circumstances give rise to justifiable doubts as to the member's objectivity, reliability, sound judgment or independence. If a party to the dispute does not agree with the challenge or the challenged member of the arbitration panel does not withdraw, the party making the challenge may request the Director-General of the WTO to decide on the challenge. If the Director-General of the WTO is unable to act or is a national or permanent resident of a Party, the Party making the challenge may request the Deputy Director-General of the WTO, or the next person in line who is not a national or permanent resident of a Party, to make a decision on the challenge.
8. If a member of the arbitration panel resigns, is removed or becomes unable to act, a successor shall be appointed in the same manner as prescribed for the appointment of the original member. The work of the arbitration panel shall be suspended pending appointment of the successor.