Title
AGREEMENT ESTABLISHING THE ASEAN-AUSTRALIA-NEW ZEALAND FREE TRADE AREA
Preamble
PREAMBLE
The Governments of Brunei Darussalam, the Kingdom of Cambodia (Cambodia), the Republic of Indonesia (Indonesia), the Lao People's Democratic Republic (Lao PDR), Malaysia, the Union of Myanmar (Myanmar), the Republic of the Philippines (Philippines), the Republic of Singapore (Singapore), the Kingdom of Thailand (Thailand) and the Socialist Republic of Viet Nam (Viet Nam), collectively, the Member States of the Association of Southeast Asian Nations, and Australia and New Zealand;
REINFORCING the longstanding ties of friendship and co- operation among them;
RECALLING the Framework for the AFTA-CER Closer Economic Partnership endorsed by Ministers in Ha Noi, Viet Nam on 16 September 2001;
DESIRING to minimise barriers and deepen and widen economic linkages among the Parties; lower business costs; increase trade and investment; enhance economic efficiency; create a larger market with more opportunities and greater economies of scale for business;
CONFIDENT that this Agreement establishing an ASEAN- Australia-New Zealand Free Trade Area will strengthen economic partnerships, serve as an important building block towards regional economic integration and _ support sustainable economic development;
RECOGNISING the important role and contribution of business in enhancing trade and investment among the Parties and the need to further promote and facilitate co- operation and utilisation of the greater business opportunities provided by this Agreement;
CONSIDERING the different levels of development among ASEAN Member States and between ASEAN Member States, Australia and New Zealand and the need for flexibility, including special and differential treatment, especially for the newer ASEAN Member States; as well as the need to facilitate the increasing participation of newer ASEAN Member States in this Agreement and the expansion of their exports, including, inter alia, through strengthening of their domestic capacity, efficiency and competitiveness;
REAFFIRMING the respective rights and obligations and undertakings of the Parties under the World Trade Organization Agreement and other existing international agreements and arrangements;
RECOGNISING the positive momentum that regional trade agreements and arrangements can have in accelerating regional and global trade liberalisation, and their role as building blocks for the multilateral trading system;
HAVE AGREED AS FOLLOWS:
Body
Chapter 1. Establishment of Free Trade Area, Objectives and General Definitions
Article 1. Objectives
The objectives of this Agreement are to:
(a) progressively liberalise and facilitate trade in goods among the Parties through, inter alia, progressive elimination of tariff and non-tariff barriers in substantially all trade in goods among the Parties;
(b) progressively liberalise trade in services among the Parties, with substantial sectoral coverage;
(c) facilitate, promote and enhance investment opportunities among the Parties through further development of favourable investment environments;
(d) establish a co-operative framework for strengthening, diversifying and enhancing trade, investment and economic links among the Parties; and
(e) provide special and differential treatment to ASEAN Member States, especially to the newer ASEAN Member States, to facilitate their more effective economic integration.
Article 2. Establishment of the Asean-australia-new Zealand Free Trade Area
The Parties hereby establish, consistent with Article XXIV of GATT 1994 and Article V of GATS, an ASEAN, Ausiralia and New Zealand Free Trade Area.
Article 3. General Definitions
For the purposes of this Agreement, unless the context otherwise requires:
(a) AANZFTA means the ASEAN-Australia-New Zealand Free Trade Area;
(b) Agreement means the Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area;
(c) Agreement on Customs Valuation means the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 in Annex 1A to the WTO Agreement;
(d) ASEAN means the Association of Southeast Asian Nations which comprises of Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People's Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam and whose members are referred to in_ this Agreement collectively as the ASEAN Member States and individually as an ASEAN Member State;
(e) customs duties means any customs or import duty and a charge of any kind, including any tax or surcharge, imposed in connection with the importation of a good, but does not include any:
(i) charge equivalent to an internal tax imposed consistently with the provisions of paragraph 2 of Article Ill of GATT 1994, in respect of the like domestic product or in respect of an article from which the imported product has been manufactured or produced in whole or in part;
(ii) anti-dumping or countervailing duty applied consistently with the provisions of Article VI of GATT 1994, the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, as may be amended and the Agreement on Subsidies and Countervailing Measures in Annex 1A to the WTO Agreement, as may be amended; or
(iii) fee or any charge commensurate with the cost of services rendered;
(f) days means calendar days, including weekends and holidays;
(g) FTA Joint Committee means the ASEAN, Australia and New Zealand FTA Joint Committee established pursuant to Article 1 (FTA Joint Committee) of Chapter 16 (Institutional Provisions);
(h) GATS means the General Agreement on Trade in Services in Annex 1B to the WTO Agreement;
(i) GATT 1994 means the General Agreement on Tariffs and Trade 1994 in Annex 1A to the WTO Agreement;
(j) HS Code means the Harmonized Commodity Description and Coding System established by the International Convention on the Harmonized Description and Coding System signed at Brussels on 14 June 1983, as amended;
(k) IMF Articles of Agreement means the Articles of Agreement of the International Monetary Fund;
(l) newer ASEAN Member States means the Kingdom of Cambodia, the Lao People's Democratic Republic, the Union of Myanmar and the Socialist Republic of Viet Nam;
(m) originating good means a good that qualifies as originating under Chapter 3 (Rules of Origin);
(n) Parties means the ASEAN Member States, Australia and New Zealand collectively;
(o) Party means an ASEAN Member State or Australia or New Zealand;
(p) TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights, in Annex 1C to the WTO Agreement;
(q) WTO means the World Trade Organization; and
(r) WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done on 15 April 1994.
Chapter 2. Trade In Goods
Article 1. Reduction and/or Elimination of Customs Duties
Except as otherwise provided in this Agreement, each Party shall progressively reduce and/or eliminate customs duties on originating goods of the other Parties in accordance with its schedule of tariff commitments in Annex 1 (Schedules of Tariff Commitments).
Article 2. Acceleration of Tariff Commitments
1. Nothing in this Agreement shall preclude all Parties from negotiating and entering into arrangements to accelerate and/or improve tariff commitments made under this Agreement. An agreement among all Parties to accelerate and/or improve tariff commitments shall be incorporated into this Agreement, in accordance with Article 6 (Amendments) of Chapter 18 (Final Provisions). Such acceleration and/or improvement of tariff commitments shall be implemented by all the Parties.
2. Two or more Parties may also consult to consider accelerating and/or improving tariff commitments set out in their schedules of tariff commitments in Annex 1 (Schedules of Tariff Commitments). An agreement between these Parties to accelerate and/or improve their respective tariff commitments under this Agreement shall be incorporated into this Agreement, in accordance with Article 6 (Amendments) of Chapter 18 (Final Provisions). Tariff concessions arising from such acceleration and/or improvement of tariff commitments shall be extended to all Parties.
3. A Party may, at any time, unilaterally accelerate the reduction and/or elimination of customs duties on originating goods of the other Parties set out in its schedule of tariff commitments in Annex 1 (Schedules of Tariff Commitments). A Party intending to do so shall inform the other Parties before the new rate of customs duties takes effect, or in any event, as early as practicable.
Article 3. Elimination of Agricultural Export Subsidies
Consistent with their rights and obligations under the WTO Agreement, each Party agrees to eliminate and not reintroduce all forms of export subsidies for agricultural goods destined for the other Parties.
Article 4. National Treatment on Internal Taxation and Regulation
Each Party shall accord national treatment to the goods of the other Parties in accordance with Article Ill of GATT 1994. To this end, Article Ill of GATT 1994 shall be incorporated into and shall form part of this Agreement, mutatis mutandis.
Article 5. Fees and Charges Connected with Importation and Exportation
1. Each Party shall ensure that fees and charges connected with importation and exportation shall be consistent with its rights and obligations under GATT 1994.
2. Each Party shall make available details of the fees and charges that it imposes in connection with importation and exportation and, to the extent possible and in accordance with its domestic laws and regulations, make such information available on the internet.
3. A Party may not require consular transactions, including related fees and charges, in connection with the importation of any good of any other Party.
Article 6. Publication and Administration of Trade Regulations
1. Article X of GATT 1994 shall be incorporated into and shall form part of this Agreement, mutatis mutandis.
2. In accordance with its domestic laws and regulations and to the extent possible, each Party shall make laws, regulations, decisions and rulings of the kind referred to in Paragraph 1 available on the internet.
Article 7. Quantitative Restrictions and Non-tariff Measures
1. No Party shall adopt or maintain any prohibition or quantitative restriction on the importation of any good of any other Party or on the exportation of any good destined for the territory of any other Party, except in accordance with its WTO rights and obligations or this Agreement. To this end, Article XI of GATT 1994 shall be incorporated into and shall form part of this Agreement, mutatis mutandis.
2. Except as otherwise provided in this Agreement, a Party shall not adopt or maintain any non-tariff measure on the importation of any good of any other Party or on the exportation of any good destined for the territory of any other Party, except in accordance with its WTO rights and obligations or in accordance with this Agreement.
3. Each Party shall ensure the transparency of its non- tariff measures permitted under Paragraph 2 and shall ensure that any such measures are not prepared, adopted or applied with the view to or with the effect of creating unnecessary obstacles to trade among the Parties.
4. The Goods Committee established pursuant to Article 11 (Committee on Trade in Goods) shall review non-tariff measures covered by this Chapter with a view to considering the scope for additional means to enhance the facilitation of trade in goods between the Parties. The Goods Committee shall submit to the FTA Joint Committee an initial report on progress in its work, including any recommendations, within two years of entry into force of this Agreement. Any Party may nominate measures for consideration by the Goods Committee.
Article 8. Import Licensing
1. Each Party shall ensure that all automatic and non- automatic import licensing measures are implemented in a transparent and predictable manner, and applied in accordance with the Agreement on Import Licensing Procedures in Annex 1A to the WTO Agreement.
2. Each Party shall promptly notify the other Parties of existing import licensing procedures. Thereafter, each Party shall notify the other Parties of any new import licensing procedures and any modification to its existing import licensing procedures, to the extent possible 60 days before it takes effect, but in any case no later than within 60 days of publication. The information in any notification under this Article shall be in accordance with Article 5.2 and 5.3 of the Agreement on Import Licensing Procedures in Annex 1A to the WTO Agreement.
3. Upon request of another Party, a Party shall, promptly and to the extent possible, respond to the request of that Party for information on import licensing requirements of general application.
Article 9. Modification of Concessions
In exceptional circumstances where a Party faces unforeseen difficulties in implementing its tariff commitments, that Party may, with the agreement of all other interested Parties, modify or withdraw a concession contained in its schedule of tariff commitments in Annex 1 (Schedules of Tariff Commitments). In order to seek to reach such agreement, the relevant Party shall engage in negotiations with any interested Parties. In such negotiations, the Party proposing to modify or withdraw its concessions shall maintain a level of reciprocal and mutually advantageous concessions no less favourable to the trade of all other interested Parties than that provided for in this Agreement prior to such negotiations, which may include compensatory adjustments with respect to other goods. The mutually agreed outcome of the negotiations, including any compensatory adjustments, shall apply to all the Parties and shall be incorporated into this Agreement in accordance with Article 6 (Amendments) of Chapter 18 (Final Provisions).
Article 10. Contact Points and Consultations
1. Each Party shall designate a contact point to facilitate communication among the Parties on any matter relating to this Chapter.
2. Where a Party considers that any proposed or actual measure of another Party or Parties may materially affect trade in goods between the Parties, that Party may, through the contact point, request detailed information relating to that measure and, if necessary, request consultations with a view to resolving any concerns about the measure. The other Party or Parties shall respond promptly to such requests for information and consultations.
Article 11. Committee on Trade In Goods
1. The Parties hereby establish a Committee on Trade in Goods (Goods Committee) consisting of representatives of the Parties. The Goods Committee may meet at the request of any Party or the FTA Joint Committee to consider any matter arising under this Chapter, or under:
(a) Chapter 3 (Rules of Origin);
(b) Chapter 4 (Customs Procedures);
(c) Chapter 5 (Sanitary and Phytosanitary Measures);
(d) Chapter 6 (Standards, Technical Regulations and Conformity Assessment Procedures); and
(e) Chapter 7 (Safeguard Measures).
2. The functions of the Goods Committee shall include:
(a) reviewing implementation of, and measures taken pursuant to, the Chapters referred to in Paragraph 1;
(b) receiving reports from, and reviewing the work of:
(i) the ROO Sub-Committee established pursuant to Article 18 (Sub-Committee on Rules of Origin) of Chapter 3 (Rules of Origin);
(ii) the SPS Sub-Committee established pursuant to Article 10 (Meetings Among the Parties on Sanitary and Phytosanitary Matters) of Chapter 5 (Sanitary and Phytosanitary Measures); and
(iii) the STRACAP Sub-Committee established pursuant to Article 13 (Sub-Committee on Standards, Technical Regulations and Conformity Assessment Procedures) of Chapter 6 (Standards, Technical Regulations and Conformity Assessment Procedures);
(c) implementing the work programme provided for in Article 7.4 (Quantitative Restrictions and Non- Tariff Measures);
(d) identifying and recommending measures to promote and facilitate improved market access, including any acceleration of tariff commitments under Article 2.1 (Acceleration of Tariff Commitments); and
(e) reporting, as required, to the FTA Joint Committee.
3. The Goods Committee may agree to establish subsidiary working groups or refer issues for consideration to the ROO Sub-Committee established pursuant to Article 18 (Sub-Committee on Rules of Origin) of Chapter 3 (Rules of Origin).
4. The meetings of the Goods Committee may occur in person, or by any other means as mutually determined by the Parties.
Article 12. Application
Each Party shall take such reasonable measures as may be available to it to ensure observance of the provisions of this Chapter by the regional and local governments and authorities within its territories.
Chapter 3. Rules of Origin
Article 1. Definitions
For the purposes of this Chapter:
(a) aquaculture means the farming of aquatic organisms including fish, molluscs, crustaceans, other aquatic invertebrates and aquatic plants, from seedstock such as eggs, fry, fingerlings and larvae, by intervention in the rearing or growth processes to enhance production such as regular stocking, feeding, or protection from predators;
(b) back-to-back Certificate of Origin means a Certificate of Origin issued by an intermediate exporting Party's Issuing Authority/Body based on the Certificate of Origin issued by the first exporting Party;
(c) CIF means the value of the good imported and includes the cost of freight and insurance up to the port or place of entry into the country of importation. The valuation shall be made in accordance with Article VIl of GATT 1994 and the Agreement on Customs Valuation;
(d) FOB means the free-on-board value of the good, inclusive of the cost of transport to the port or site of final shipment abroad. The valuation shall be made in accordance with Article VIl of GATT 1994 and the Agreement on Customs Valuation;
(e) generally accepted accounting principles means the recognised consensus or substantial authoritative support in a Party, with respect to the recording of revenues, expenses, costs, assets and liabilities; the disclosure of information; and the preparation of financial statements. These standards may encompass broad guidelines of general application as well as detailed standards, practices and procedures;
(f) good means any merchandise, product, article or material;
(g) identical and interchangeable materials means materials that are fungible as a result of being of the same kind and commercial quality, possessing the same technical and physical characteristics, and which once they are incorporated into the finished product cannot be distinguished from one another for origin purposes by virtue of any markings or mere visual examination;
(h) indirect material means a good used in the production, testing, or inspection of a good but not physically incorporated into the good, or a good used in the maintenance of buildings or the operation of equipment associated with the production of a good, including:
(i) fuel and energy;
(ii) tools, dies and moulds;
(iii) spare parts and materials used in the maintenance of equipment and buildings;
(iv) lubricants, greases, compounding materials and other materials used in production or used to operate equipment and buildings;
(v) gloves, glasses, footwear, clothing, safety equipment and supplies;
(vi) equipment, devices and supplies used for testing or inspecting goods;
(vii) catalysts and solvents; and
(viii) any other goods that are not incorporated into the good but whose use in the production of the good can reasonably be demonstrated to be a part of that production;
(i) material means any matter or substance used or consumed in the production of goods or physically incorporated into a good or subjected to a process in the production of another good;
(j) non-originating good or non-originating material means a good or material that does not qualify as originating under this Chapter;
(k) originating material means a material that qualifies as originating under this Chapter;
(l) producer means a person who grows, mines, raises, harvests, fishes, traps, hunts, farms, captures, gathers, collects, breeds, extracts, manufactures, processes or assembles a good;
(m) production means methods of obtaining goods including growing, mining, harvesting, farming, raising, breeding, extracting, gathering, collecting, capturing, fishing, trapping, hunting, manufacturing, producing, processing' or assembling a good;
(n) Product Specific Rules are rules in Annex 2 (Product Specific Rules) that specify that the materials used to produce a good have undergone a change in tariff classification or a specific manufacturing or processing operation, or satisfy a regional value content criterion or a combination of any of these criteria; and
(o) packing materials and containers for transportation means goods used to protect a good during its transportation, different from those containers or materials used for its retail sale.
Article 2. Originating Goods
1. For the purposes of this Chapter, a good shall be treated as an originating good if it is either:
(a) wholly produced or obtained in a Party as provided in Article 3 (Goods Wholly Produced or Obtained);
(b) not wholly produced or obtained in a Party provided that the good has satisfied the requirements of Article 4 (Goods Not Wholly Produced or Obtained); or
(c) produced in a Party exclusively from originating materials from one or more of the Parties, and meets all other applicable requirements of this Chapter.
2. A good which complies with the origin requirements of Paragraph 1 will retain its eligibility for preferential tariff treatment if exported to a Party and subsequently re- exported to another Party.
Article 3. Goods Wholly Produced or Obtained
For the purposes of Article 2.1(a) (Originating Goods), the following goods shall be considered as wholly produced or obtained:
(a) plants and plant goods, including fruit, flowers, vegetables, trees, seaweed, fungi and live plants, grown, harvested, picked, or gathered in a Party (1);
(b) live animals born and raised in a Party;
(c) goods obtained from live animals in a Party;
(d) goods obtained from hunting, trapping, fishing, farming, aquaculture, gathering, or capturing in a Party
(e) minerals and other naturally occurring substances extracted or taken from the soil, waters, seabed or beneath the seabed in a Party;
(f) goods of sea-fishing and other marine goods taken from the high seas, in accordance with international law (2), by any vessel registered or recorded with a Party and entitled to fly the flag of that Party;
(g) goods produced on board any factory ship registered or recorded with a Party and entitled to fly the flag of that Party from the goods referred to in Subparagraph (f);
(h) goods taken by a Party, or a person of a Party, from the seabed or beneath the seabed beyond the Exclusive Economic Zone and adjacent Continental Shelf of that Party and beyond areas over which third parties exercise jurisdiction under exploitation rights granted in accordance with international law (3);
(i) goods which are:
(i) waste and scrap derived from production and consumption in a Party provided that such goods are fit only for the recovery of raw materials; or
(ii) used goods collected in a Party provided that such goods are fit only for the recovery of raw materials; and
(j) goods produced or obtained in a Party solely from products referred to in Subparagraphs (a) to (i) or from their derivatives.