6. In its first meeting, the Committee shall adopt its rules of procedure, which shall be updated if necessary.
7. The Committee shall convene at least once every two years, unless the Parties agree otherwise. The Committee may meet in person, by teleconference, by videoconference, or by any other means agreed by the Parties. The Parties may avail themselves of the opportunity to meet, where possible, in conjunction with other meetings related to the Agreement or in the margins of international meetings.
Chapter 7. Trade Remedies
Article 7.1. Definitions
For the purposes of Articles 7.2 through 7.7:
(a) domestic industry means, with respect to an imported product, the producers as a whole of the like or directly competitive product operating within the territory of a Party, or those whose collective output of the like or directly competitive product constitutes a major proportion of the total domestic production of those products;
(b) bilateral safeguard measure means a measure described in Article 7.2.2;
(c) Safeguards Agreement means the Agreement on Safeguards contained in Annex 1A to the WTO Agreement;
(d) serious injury means a significant overall impairment in the position of a domestic industry;
(e) threat of serious injury means serious injury that, on the basis of facts and not merely on allegation, conjecture, or remote possibility, is clearly imminent; and
(f) transition period means, in relation to a particular product, the three year period from the date of entry into force of this Agreement, except that for any product for which the date on which the customs duty on that product is to be eliminated in accordance with Annex I (Schedules in Relation to Article 2.4 (Elimination of Customs Duties)) is more than three years, transition period shall mean the tariff elimination period for that product.
Article 7.2. Application of a Bilateral Safeguard Measure
1. If during the transition period, as a result of the reduction or elimination of a customs duty in accordance with this Agreement, an originating product is being imported into a Party's territory in such increased quantities, in absolute terms or relative to domestic production, and under such conditions as to cause or threaten to cause serious injury to the domestic industry that produces a like or directly competitive product, the importing Party may apply a bilateral safeguard measure described in paragraph 2.
2. If the conditions in paragraph 1 are met, a Party may, only to the extent necessary to prevent or remedy serious injury and facilitate adjustment:
(a) suspend the further reduction of any rate of duty provided for under this Agreement on the product; or
(b) increase the rate of duty on the good to a level not to exceed the lesser of:
(i) the most-favoured-nation (hereinafter referred to as "MFN") applied rate of duty on the product in effect at the time the measure is applied; and
(ii) the MEN applied rate of duty on the product in effect on the day immediately preceding the date of entry into force of this Agreement. (1)
Article 7.3. Scope and Duration of Bilateral Safeguard Measures
1. Neither Party shall apply or maintain a bilateral safeguard measure:
(a) except to the extent, and for such time, as may be necessary to prevent or remedy serious injury and to facilitate adjustment; or
(b) for a period exceeding two years, except that the period may be extended by up to one year if the competent authorities of the applying Party determine, in conformity with the procedures set out in this Chapter, that the bilateral safeguard measure continues to be necessary to prevent or remedy serious injury and to facilitate adjustment and that there is evidence that the industry is adjusting. Regardless of its duration, any such measure shall terminate at the end of the transition period.
2. In order to facilitate adjustment in a situation where the expected duration of a bilateral safeguard measure is over one year, the Party applying the measure shall progressively liberalise it at regular intervals during the period of application.
3. A Party shall not apply a bilateral safeguard measure again on a product which has been subject to a bilateral safeguard measure for a period of time equal to that during which the previous bilateral safeguard measure had been applied, provided that the period of non-application is at least two years. However, no bilateral safeguard measure may be applied more than twice on the same product.
4. Neither Party shall apply a bilateral safeguard measure on a product that is subject to a measure that the Party has applied in accordance with Article XIX of GATT 1994 and the Safeguards Agreement, and neither Party shall maintain a bilateral safeguard measure on a product that becomes subject to a measure that the Party imposed pursuant to Article XIX of GATT 1994 and the Safeguards Agreement.
5. On the termination of a bilateral safeguard measure, the Party that applied the bilateral safeguard measure shall apply the rate of customs duty set out in its schedule to Annex I (Schedules in Relation to Article 2.4 (Elimination of Customs Duties)) on the date of termination as if the bilateral safeguard measure had never been applied.
Article 7.4. Investigation Procedures and Transparency Requirements
1. A Party shall apply a bilateral safeguard measure only following an investigation by the Party's competent authorities in accordance with the same procedures as those provided for in Articles 3 and 4.2 of the Safeguards Agreement; to this end, Articles 3 and 4.2 of the Safeguards Agreement are incorporated into and made part of this Agreement, mutatis mutandis.
2. Each Party shall ensure that its competent authorities complete any such investigation within one year of its initiation.
Article 7.5. Provisional Bilateral Safeguard Measures
1. In critical circumstances where delay would cause damage which would be difficult to repair, a Party may apply a provisional bilateral safeguard measure pursuant to a preliminary determination that there is clear evidence that increased imports have caused or are threatening to cause serious injury to a domestic industry.
2. Before applying a provisional bilateral safeguard measure the applying Party shall notify the other Party and shall, on request of the other Party, initiate consultations after applying such a measure.
3. The duration of a provisional bilateral safeguard measure shall not exceed 200 days, during which period the pertinent requirements of Articles 7.2 through 7.4 shall be met. Such a provisional bilateral safeguard measure should take the form of a suspension of the further reduction of any rate of duty provided for under this Agreement on the product or an increase in the customs duties to a rate not exceeding the lesser of the rates in Article 7.2.2(b). Any additional customs duties or guarantees collected shall be promptly refunded if the subsequent investigation referred to in Article 7.4.1 determines that increased imports have not caused, or threatened to cause, serious injury to a domestic industry.
4. The duration of any such provisional bilateral safeguard measure shall be counted as part of the period described in Article 7.3.1.
Article 7.6. Notification and Consultation
1. A Party shall immediately notify the other Party in writing on:
(a) initiating a bilateral safeguard investigation;
(b) making a finding of serious injury or threat thereof caused by increased imports;
(c) taking a decision to apply or extend a bilateral safeguard measure; and
(d) taking a decision to liberalise a bilateral safeguard measure previously applied in accordance with Article 7.3.2.
2. In making the notifications referred to in paragraph 1(b) and paragraph 1(c), the Party applying a bilateral safeguard measure shall provide the other Party with all pertinent information, which shall include evidence of serious injury or threat thereof caused by increased imports, a precise description of the product involved, the proposed bilateral safeguard measure, the grounds for introducing the bilateral safeguard measure, the proposed date of introduction and its expected duration and timetable for progressive liberalisation. In the case of an extension of a bilateral safeguard measure, the written results of the determination required by Article 7.4, including evidence that the continued application of the measure is necessary to prevent or remedy serious injury and that the industry is adjusting, shall also be provided.
3. A Party proposing to apply or extend a bilateral safeguard measure shall provide adequate opportunity for prior consultations with the other Party, with a view to, inter alia, reviewing the information provided in accordance with paragraph 2, exchanging views on the bilateral safeguard measure and reaching an agreement on compensation in accordance with Article 7.7.1.
4. A Party shall provide to the other Party a copy of the public version of the report of its competent authorities required under Article 7.4 as soon as it is available.
Article 7.7. Compensation
1. A Party applying a bilateral safeguard measure shall, in consultation with the other Party, provide to the other Party mutually agreed trade liberalising compensation in the form of concessions having substantially equivalent trade effects or equivalent to the value of the additional duties expected to result from the bilateral safeguard measure. Such consultations shall begin within 30 days of the application of the bilateral safeguard measure.
2. If the Parties are unable to reach an agreement on compensation within 30 days of the consultations commencing, the exporting Party shall be free to suspend the application of substantially equivalent concessions to the trade of the Party applying the bilateral safeguard measure.
3. A Party shall notify the other Party in writing at least 30 days before suspending concessions in accordance with paragraph 2.
4. The obligation to provide compensation under paragraph 1 and the right to suspend concessions in accordance with paragraph 2 shall terminate on the date of the termination of the safeguard measure.
Article 7.8. Global Safeguard
Each Party retains its rights and obligations under Article XIX of GATT 1994 and the Safeguards Agreement. This Agreement shall not confer any additional rights or impose any additional obligations on the Parties with respect to measures applied under Article XIX of GATT 1994 and the Safeguards Agreement.
Article 7.9. Anti-dumping Measures
1. Except as otherwise provided for in this Article, each Party retains its rights and obligations under the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 contained in Annex 1A to the WTO Agreement.
2. The Parties agree to enhance dialogue in matters of anti-dumping to afford each other fair and transparent treatment. The Parties will afford adequate opportunity for consultations to exchange information on issues raised by the other Party with respect to such matters, including through the regular holding of a High Level Dialogue on Trade Remedies.
Article 7.10. Subsidies and Countervailing Measures
1. Except as otherwise provided for in this Article, each Party retains its rights and obligations under the Agreement on Subsidies and Countervailing Measures contained in Annex 1A to the WTO Agreement. (2)
2. The Parties shall ensure transparency of subsidy measures by exchanging their notifications to the WTO pursuant to Article XVI:1 of the GATT 1994 and Article 25 of the Agreement on Subsidies and Countervailing Measures.
3. As soon as possible after a Party's receipt of a properly documented application for the initiation of a countervailing investigation against the imports from the other Party, the Party shall notify the other Party in writing. Such notification shall include the non-confidential version of the application and its supporting evidence. The investigating authority and the Party being notified shall avoid publicising the existence of the application unless a decision has been made to initiate an investigation.
4. As soon as possible after a properly documented application is accepted, and in any event before the initiation of any investigation, the importing Party shall afford to the other Party reasonable opportunities for consultations with the aim of clarifying the situation on matters raised in the application and arriving at a mutually agreed solution. Investigations into newly-alleged subsidy programs shall be undertaken in a transparent manner with the other Party afforded reasonable opportunities for consultations to defend its interests.
5. The investigating authorities shall carefully review the accuracy and adequacy of the evidence provided in the application to determine whether the evidence is sufficient to justify the initiation of an investigation.
6. Throughout the investigation, the other Party shall be afforded a reasonable opportunity to continue consultations, with a view to clarifying the factual situation and to arriving at a mutually agreed solution.
Chapter 8. Trade In Services
Section Scope and Definitions
Article 8.1. Scope
1. This Chapter shall apply to measures adopted or maintained by a Party affecting trade in services, including measures in respect of:
(a) the production, distribution, marketing, sale or delivery of a service;
(b) the purchase or use of, or payment for, a service;
(c) the access to and use of, in connection with the supply of a service, services which are required by a Party to be offered to the public generally; and
(d) the presence in its territory of a service supplier of the other Party.
2. This Chapter shall not apply to:
(a) measures affecting air traffic rights, however granted, or measures affecting services directly related to the exercise of air traffic rights and air traffic control and air navigation services, other than measures affecting:
(i) aircraft repair and maintenance services;
(ii) the selling and marketing of air transport services;
Gii) computer reservation system ("CRS") services;
(iv) airport operation services;
(v) ground handling services; and
(vi) specialty air services.
The Parties note the multilateral negotiations pursuant to the review of the Annex on Air Transport Services of GATS. Upon the conclusion of such multilateral negotiations, the Parties shall conduct a review for the purpose of discussing appropriate amendments to this Agreement so as to incorporate the results of such multilateral negotiations.
(b) government procurement;
(c) services supplied in the exercise of governmental authority in a Party's territory;
(d) subsidies or grants provided by a Party, including government-supported loans, guarantees, and insurance; and
(e) measures affecting natural persons of a Party seeking access to the employment market of the other Party, or measures regarding citizenship, residence or employment on a permanent basis.
Article 8.2. Definitions
For the purposes of this Chapter:
(a) aircraft repair and maintenance services means such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and does not include so-called "line maintenance";
(b) airport operation services means passenger air terminal, airfield and other airport infrastructure operation services excluding airport security services and services covered in ground handling services;
(c) commercial presence means any type of business or professional establishment, including through:
(i) the constitution, acquisition or maintenance of a juridical person; or
(ii) the creation or maintenance of a branch or a representative office, within the territory of a Party for the purpose of supplying a service;
(d) computer reservation system services mean services provided by computerised systems that contain information about air carriers' schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
(e) controlled means having the power to name a majority of directors or otherwise legally direct a juridical person's actions;
(f) ground handling services means the provision, by a third party on a fee or contract basis, of the following activities performed at an airport: airline representation, administration and supervision; passenger handling services; ramp services; air cargo and baggage handling services; and load control and flight operation services. Ground handling services do not include security, aircraft repair and maintenance services or management of essential centralised airport infrastructure;
(g) juridical person of a Party means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association, which is either:
(i) constituted or otherwise organised in accordance with the law of that Party, and is engaged in substantive business operations in the territory of that Party; or
(ii) in the case of the supply of a service through commercial presence, owned or controlled by:
(A) natural persons of that Party; or
(B) juridical persons of that Party identified under subparagraph (i);
(h) measure means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action or any other form, taken by:
(i) central, regional or local governments and authorities; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
(i) measures by Parties affecting trade in services include measures in respect of:
(i) the purchase, payment or use of a service;
(ii) the access to and use of, in connection with the supply of a service, services which are required by the Parties to be offered to the public generally; and
(iii) the presence, including commercial presence, of persons of a Party for the supply of a service in the territory of the other Party;
(j) monopoly supplier of a service means any person, public or private, which in the relevant market of the territory of a Party is authorised or established formally or in effect by that Party as the sole supplier of that service;
(k) natural person of a Party means a natural person who under the law of the Party,
(i) for Australia, is an Australian citizen or a permanent resident of Australia; and
(ii) for China, is a natural person who under the Chinese law is a national of China;
(l) owned means holding more than 50 percent of the equity interest in a juridical person;
(m) person of a Party means either a natural person or a juridical person of a Party;
(n) qualification procedures means administrative procedures relating to the administration of qualification requirements;
(o) qualification requirements means substantive requirements which a service supplier is required to fulfil in order to obtain certification or a licence;
(p) sector of a service means, with reference to a specific commitment, one or more or all subsectors of that service, as specified in a Party's Schedule in Annex III, or otherwise the whole of that service sector, including all of its subsectors;
(q) selling and marketing of air transport services means opportunities for the air carrier concerned to sell and market freely its air transport services including all aspects of marketing such as market research, advertising and distribution, but do not include the pricing of air transport services nor the applicable conditions;
(r) services includes any service in any sector except services supplied in the exercise of governmental authority;
(s) service consumer means any person that receives or uses a service;
(t) service supplied in the exercise of governmental authority means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers;
(u) service supplier of a Party means any person of a Party that supplies a service (1)
(v) specialty air services means any non-transportation air services, such as aerial fire-fighting, sightseeing, spraying, surveying, mapping, photography, parachute jumping, glider towing, and helicopter-lift for logging and construction, and other airborne agricultural, industrial and inspection services;
(w) supply of a service includes the production, distribution, marketing, sale and delivery of a service;
(x) trade in services means the supply of a service:
(i) from the territory of a Party into the territory of the other Party "cross-border supply mode");
(ii) in the territory of a Party to the service consumer of the other Party ("consumption abroad mode");
(iii) by a service supplier of a Party, through commercial presence in the territory of the other Party ("commercial presence mode"); and
(iv) by a service supplier of a Party, through presence of natural persons of that Party in the territory of the other Party ("presence of natural persons mode" or "movement of natural persons mode");
(y) traffic rights means the right for scheduled and non-scheduled services to operate and/or to carry passengers, cargo and mail for remuneration or hire from, to, within, or over the territory of a Party, including points to be served, routes to be operated, types of traffic to be carried, capacity to be provided, tariffs to be charged and their conditions, and criteria for designation of airlines, including such criteria as number, ownership and control.
Section II. Scheduling Approach
Article 8.3. Scheduling of Commitments
Each Party shall make commitments on National Treatment, Market Access and Most-Favoured-Nation Treatment in accordance with either Section A or Section B.
Section A. Positive Listing Approach
Article 8.4. Schedule of Specific Commitments
1. Where a Party schedules commitments in accordance with this Section, it shall set out in a schedule, called its Schedule of Specific Commitments, the specific commitments it undertakes in accordance with Articles 8.5, 8.6 and 8.8. With respect to sectors where such commitments are undertaken, its Schedule of Specific Commitments shall specify:
(a) terms, limitations and conditions on market access; (b) conditions and qualifications on national treatment; (c) undertakings relating to additional commitments; and
(d) where appropriate, the time-frame for implementation of such commitments.
2. Measures inconsistent with both Articles 8.5 and 8.6 shall be inscribed in the column relating to Article 8.6. In this case the inscription will be considered to provide a condition or qualification to Article 8.5 as well.
3. Schedules of Specific Commitments are annexed to this Agreement as Annex III and shall form an integral part thereof.
Article 8.5. National Treatment
1. Where a Party schedules commitments in accordance with this Section, in the sectors inscribed in its Schedule of Specific Commitments in Annex III, and subject to any conditions and qualifications set out therein, it shall accord to services and service suppliers of the other Party, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers. (2)
2. A Party may meet the requirement in paragraph 1 by according to services and service suppliers of the other Party either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment by a Party shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of that Party compared to the like service or service suppliers of the other Party.
Article 8.6. Market Access
1. Where a Party schedules commitments in accordance with this Section, with respect to market access through the modes of supply identified in Article 8.2(x), it shall accord services and service suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule of Specific Commitments in Annex III (3).
2. In sectors where market access commitments are undertaken, the measures which a Party shall not maintain or adopt, either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule of Specific Commitments in Annex III, are defined as:
(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test; (4)
(d) limitations on the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test;