Article 12.4. Transparency
1. Each Party shall promptly publish, or otherwise promptly make publicly available where publication is not practicable, all relevant measures of general application which pertain to, or affect, the operation of this Chapter.
2. Each Party shall respond promptly to all requests by the other Party for specific information on any of its measures of general application within the meaning of paragraph 1.
Article 12.5. Domestic Regulatory Frameworks
1. Each Party shall maintain domestic legal frameworks governing electronic transactions based on the UNCITRAL Model Law on Electronic Commerce 1996 and taking into account, as appropriate, other relevant international standards.
2. Each Party shall:
(a) minimise the regulatory burden on electronic commerce; and
(b) ensure that regulatory frameworks support industry-led development of electronic commerce.
Article 12.6. Electronic Authentication and Digital Certificates
1. Each Party shall maintain laws regulating electronic signatures that permit:
(a) parties to electronic transactions to mutually determine the appropriate electronic signature and authentication methods; and
(b) electronic authentication service providers, including agencies, to have the opportunity to prove before judicial or administrative authorities that their electronic authentication services comply with the relevant legal requirements.
2. The Parties shall work towards the mutual recognition of digital certificates and electronic signatures.
3. Each Party shall encourage the use of digital certificates in the business sector.
Article 12.7. Online Consumer Protection
Each Party shall, to the extent possible and in a manner it considers appropriate, provide protection for consumers using electronic commerce that is at least equivalent to that provided for consumers of other forms of commerce under their respective laws, regulations and policies.
Article 12.8. Online Data Protection
1. Notwithstanding the differences in existing systems for personal information protection in the territories of the Parties, each Party shall take such measures as it considers appropriate and necessary to protect the personal information of users of electronic commerce.
2. In the development of data protection standards, each Party shall, to the extent possible, take into account international standards and the criteria of relevant international organisations.
Article 12.9. Paperless Trading
1. Each Party shall accept the electronic versions of trade administration documents as the legal equivalent of paper documents except where:
(a) there is a domestic or international legal requirement to the contrary; or
(b) doing so would reduce the effectiveness of the trade administration process.
2. The Parties shall cooperate bilaterally and in international forums to enhance acceptance of electronic versions of trade administration documents.
3. In developing initiatives which provide for the use of paperless trading, each Party shall endeavour to take into account the methods agreed by international organisations.
4. Each Party shall endeavour to make all trade administration documents available to the public as electronic versions.
Article 12.10. Cooperation on Electronic Commerce
1. The Parties shall encourage cooperation in research and training activities that would enhance the development of electronic commerce, including by sharing best practices on electronic commerce development.
2. The Parties shall encourage cooperative activities to promote electronic commerce, including those that would improve the effectiveness and efficiency of electronic commerce.
3. The cooperative activities referred to in paragraphs 1 and 2 may include, but are not limited to:
(a) sharing information about regulatory frameworks;
(b) sharing information about on-line consumer protection, including unsolicited commercial electronic messages; and
(c) further areas as agreed between the Parties. 4. The Parties shall endeavour to undertake forms of cooperation that build on and do not duplicate existing cooperation initiatives pursued in international forums.
Article 12.11. Dispute Settlement Provisions
The provisions in Chapter 15 (Dispute Settlement) shall not apply to the provisions of this Chapter.
Chapter 13. Transparency
Article 13.1. Definitions
For the purposes of this Chapter, administrative ruling of general application means an administrative ruling or interpretation that applies to all persons and fact situations that fall generally within its ambit and that establishes a norm of conduct but does not include:
(a) a determination or ruling made in an administrative or quasi-judicial proceeding that applies to a particular person, good, or service of the other Party in a specific case; or
(b) a ruling that adjudicates with respect to a particular act or practice.
Article 13.2. Publication
1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application respecting any matter covered by this Agreement are promptly published, including on the internet where feasible, or otherwise made available in such a manner as to enable interested persons and the other Party to become acquainted with them.
2. To the extent possible, each Party shall:
(a) publish in advance any such laws, regulations, procedures and administrative rulings of general application referred to in paragraph 1 that it proposes to adopt; and
(b) provide interested persons and the other Party a reasonable opportunity to comment on such proposed laws, regulations, procedures and administrative rulings of general application.
Article 13.3. Notification and Provision of Information
1. Where a Party considers that any proposed or actual law, regulation, procedure or administrative ruling of general application might materially affect the operation of this Agreement or otherwise substantially affect the other Party's interests under this Agreement, that Party shall notify the other Party, to the extent possible.
2. On request of the other Party, a Party shall promptly provide information and respond to questions pertaining to any actual or proposed law, regulation, procedure or administrative ruling of general application, regardless of whether the requesting Party has been previously notified of it.
3. Any notification or information provided under this Article shall be without prejudice as to whether the law, regulation, procedure or administrative ruling of general application is consistent with this Agreement.
4. The notification referred to under paragraph 1 shall be considered to have been made when an appropriate notification made in accordance with the WTO Agreement is available, or when the relevant information has been made publicly available, including through an official, public and fee-free accessible website of the Party concerned.
5. Any notification, request or information provided under this Article shall be conveyed to the other Party through the relevant contact points.
Article 13.4. Administrative Proceedings
1. Each Party shall ensure that all laws, regulations, procedures and administrative rulings of general application to which this Agreement applies are administered in a consistent, impartial, objective and reasonable manner.
2. With a view to administering in a consistent, impartial, objective and reasonable manner its laws, regulations, procedures and administrative rulings of general application with respect to any matter covered by this Agreement, each Party shall ensure, in its administrative proceedings applying these measures to particular persons, goods or services of the other Party in specific cases that:
(a) wherever possible, persons of the other Party that are directly affected by a proceeding are provided with reasonable notice when a proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated, and a general description of any issues in controversy;
(b) such persons are afforded a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when time, the nature of the proceeding and the public interest permit; and
(c) it follows its procedures in accordance with its law.
Article 13.5. Review and Appeal
1. Each Party shall establish or maintain judicial, quasi-judicial, or administrative tribunals or procedures for the purposes of the prompt review and, where warranted, correction of final administrative actions regarding matters covered by this Agreement. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.
2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceeding are provided with the right to:
(a) a reasonable opportunity to support or defend their respective positions; and
(b) a decision based on the evidence and submissions of record or, where required by the law of the Party, the record compiled by the administrative authority.
3. Each Party shall ensure, subject to appeal or further review as provided in its law, that such decision shall be implemented by, and shall govern the practice of, the office or authority with respect to the administrative action at issue.
Chapter 14. Institutional Provisions
Article 14.1. Functions of the Fta Joint Commission
1. The FTA Joint Commission shall:
(a) consider matters relating to the implementation of this Agreement;
(b) consider issues referred to it by the committees and working groups established under this Agreement or by either Party;
(c) in accordance with the objectives of this Agreement, explore measures for the further expansion of trade and investment between the Parties;
(d) consider any proposal to amend this Agreement and make recommendations to the Parties; and
(e) consider any other matter that may affect the operation of this Agreement.
2. The FTA Joint Commission may:
(a) establish additional committees and ad hoc working groups as necessary and refer matters to any committee or working group for advice;
(b) further the implementation of this Agreement through implementing arrangements;
(c) seek to resolve differences or disputes that may arise regarding the interpretation or application of this Agreement;
(d) seek the advice of non-governmental persons or groups on any matter falling within its responsibilities where this would assist it in discharging its responsibilities; and
(e) take such other action in the exercise of its functions as the Parties may agree.
Article 14. Rules of Procedure of the Fta Joint Commission
1. The FTA Joint Commission shall take decisions on any matter within its functions, as set out in Article 14.1, by mutual agreement.
2. The FTA Joint Commission shall convene in regular session once per year and at other times at the request of either Party. Regular sessions of the FTA Joint Commission shall be chaired successively by each Party. Other sessions of the FTA Joint Commission shall be chaired by the Party hosting the meeting.
3. The FTA Joint Commission shall ordinarily meet at the level of senior officials, unless there is a request by either Party to convene the meeting at Ministerial level.
4. Subject to paragraph 3, each Party shall be responsible for the composition of its delegation to the FTA Joint Commission.
5. The Party chairing a session of the FTA Joint Commission shall provide any necessary administrative support for such session, and shall record any decisions taken by the FTA Joint Commission, copies of which will be provided to the other Party.
Article 14. Contact Point
For the purpose of facilitating communication between the Parties on any matter covered by this Agreement, the following contact points are designated:
(a) for Australia: the Department of Foreign Affairs and Trade (DFAT); and
(b) for China: the Ministry of Commerce (MOFCOM).
Chapter 15. Dispute Settlement
Article 15.1. Cooperation
The Parties shall endeavour to agree on the interpretation and application of this Agreement, and shall make every attempt through cooperation to arrive at a mutually satisfactory resolution of any matter that might affect its operation.
Article 15.2. Scope of Application
Unless otherwise provided in this Agreement, this Chapter shall apply to the settlement of disputes between the Parties regarding the implementation, interpretation and application of this Agreement or wherever a Party considers that:
(a) a measure of the other Party is inconsistent with its obligations under this Agreement; or
(b) the other Party has otherwise failed to carry out its obligations under this Agreement.
Article 15.3. Contact Points
1. Each Party shall designate a contact point to facilitate communications between the Parties with respect to any dispute initiated under this Chapter.
2. Any request, notification, written submission or other document made in accordance with this Chapter shall be delivered to the other Party through its designated contact point.
Article 15.4. Choice of Forum
1. Unless otherwise provided in this Article, this Chapter is without prejudice to the tights of the Parties to have recourse to dispute settlement procedures available under other international trade agreements to which they are both parties.
2. Where a dispute regarding any matter arises under this Agreement and under another international trade agreement to which both Parties are party, the complaining Party may select the forum in which to settle the dispute.
3. Once the complaining Party has requested the establishment of, or referred a matter to, a dispute settlement panel or arbitral tribunal, the forum selected shall be used to the exclusion of the others.
Article 15.5. Consultations
1. Either Party may request consultations with the other Party with respect to any matter described in Article 15.2 by delivering written notification to the other Party.
2. In this notification, the complaining Party shall set out the reasons for the request, including identification of the measure at issue and an indication of the factual and legal basis for the complaint.
3. If a request for consultations is made, the Party to which the request is made shall reply promptly to the request and shall enter into consultations in good faith, with a view to reaching a mutually satisfactory solution, within a period of no more than:
(a) 10 days after the date of receipt of the request for matters of urgency concerning perishable goods; or
(b) 30 days after the date of receipt of the request for all other matters.
4. The consultations shall be confidential and are without prejudice to the rights of either Party in any further proceedings.
5, In conducting the consultations, the Parties shall:
(a) provide sufficient information to enable a full examination of how the matter might affect the operation and application of this Agreement; and
(b) treat any confidential or proprietary information exchanged in the course of consultations on the same basis as the Party providing the information.
6. If the Party complained against does not enter into consultations within the timeframe specified in paragraph 3(a) or 3(b), then the complaining Party may proceed directly to request the establishment of an arbitral tribunal.
Article 15.6. Good Offices, Mediation and Conciliation
1. The Parties may at any time agree to good offices, conciliation or mediation. They may begin at any time and be terminated at any time.
2. If the Parties agree, good offices, conciliation or mediation may continue while the dispute proceeds for resolution before an arbitral tribunal convened under Article 15.7.
Article 15.7. Establishment and Composition of an Arbitral Tribunal
1. If the consultations fail to resolve a dispute within:
(a) 20 days after the date of receipt of the request for consultations regarding a matter of urgency concerning perishable goods; or
(b) 60 days after the date of receipt of the request for consultations regarding any other matter;
the Party that made the request for consultations may request, in writing, the establishment of an arbitral tribunal to consider the matter.
2. The request to establish an arbitral tribunal shall identify:
(a) the specific measures at issue; and
(b) the factual and legal basis of the complaint, including the provisions alleged to have been breached and any other relevant provisions of this Agreement, sufficient to present the problem clearly.
3. When a request is made by the complaining Party in accordance with paragraph 1, an arbitral tribunal shall be established.
4. An arbitral tribunal shall be composed of three arbitrators.
5. Within 15 days after the establishment of an arbitral tribunal, each Party shall appoint one arbitrator, who may be its national.
6. The Parties shall, by common agreement, designate the third arbitrator within 30 days after the establishment of the arbitral tribunal. The arbitrator thus appointed shall be the Chair of the arbitral tribunal.
7. If any arbitrator of the arbitral tribunal has not been designated or appointed within 30 days after the establishment of the arbitral tribunal, either Party may request that the Director-General of the WTO designate an arbitrator within 30 days of that request.
8. All arbitrators shall:
(a) have expertise or experience in law, international trade, other matters covered by this Agreement, or the resolution of disputes arising under international trade agreements;
(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, either Party;
(d) not have dealt with the matter in any capacity; and
(e) comply with the code of conduct set out in Annex 15-A. 9. The Chair of the arbitral tribunal shall:
(a) not be a national of either Party; and
(b) not have his or her usual place of residence in the territory of either Party. 10. ‘If an arbitrator appointed in accordance with this Article resigns or becomes unable to act, a successor arbitrator shall be appointed in the same manner as prescribed for the appointment of the original arbitrator and the successor shall have all the powers and duties of the original arbitrator. The work of the arbitral tribunal shall be suspended during the appointment of the successor arbitrator. 11. Where an arbitral tribunal is reconvened in accordance with Articles 15.15 through 15.17, the reconvened arbitral tribunal shall, where possible, have the same arbitrators as in the original arbitral tribunal. If the arbitral tribunal cannot be reconvened with its original arbitrators, the procedures for selection of arbitrators set out in this Article shall apply.
Article 15.8. Functions of Arbitral Tribunals
1. The function of an arbitral tribunal is to make an objective assessment of the matter before it, including an objective assessment of:
(a) the facts of the case;
(b) the applicability of the relevant provisions of this Agreement cited by the Parties; and
(c) whether:
(i) the measure at issue is inconsistent with the obligations of this Agreement; or
(ii) a Party has otherwise failed to carry out its obligations under this Agreement.
2. Unless the Parties otherwise agree within 20 days after the date of the establishment of the arbitral tribunal, the 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 arbitral tribunal pursuant to Article 15.7 and to make findings of law and fact together with the reasons therefor for the resolution of the dispute."
3. The findings of the arbitral tribunal shall be binding on the Parties.
Article 15.9. Rules of Interpretation
1. The arbitral tribunal shall interpret this Agreement in accordance with customary tules of interpretation of public international law, including as reflected in the Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969.
2. The arbitral tribunal shall have regard to any relevant interpretation established in rulings and recommendations of the WTO Dispute Settlement Body.
3. The rulings and recommendations of the arbitral tribunal cannot add to or diminish the rights and obligations provided for in this Agreement.