Title
NEW ZEALAND - MALAYSIA FREE TRADE AGREEMENT
Preamble
New Zealand and Malaysia, hereinafter referred to as “the Parties”:
Inspired by their longstanding friendship and cooperation and growing trade and investment relationship;
Desiring to enlarge the framework of relations between the Parties through further liberalising trade and investment;
Recognising that the strengthening of their economic partnership will bring economic and social benefits, create new opportunities for employment and improve the living standards of their people;
Building on their rights, obligations and undertakings under the World Trade Organization, and other multilateral, regional and bilateral agreements and arrangements;
Recalling the Asia-Pacific Economic Cooperation (“APEC”) goals;
Recognising the significance of good governance and the need for a predictable, transparent and consistent business environment to enable businesses to conduct transactions freely, and use resources efficiently and take investment and planning decisions with certainty;
Confirming their shared commitment to trade-facilitation through removing non- tariff barriers to the movement of goods between Malaysia and New Zealand;
Desiring to strengthen the cooperative framework for the conduct of economic relations to ensure it is dynamic and encourages broader and deeper economic cooperation;
Aware that economic development, social development and environmental protection are components of sustainable development and that free trade agreements can play an important role in promoting sustainable development;
Recognising the desire to enhance communication and cooperation on labour and environment through bilateral cooperative agreements between them; and
Affirming the rights of their Governments to regulate in order to meet national policy objectives.
Have agreed as follows:
Body
Chapter ONE. INITIAL PROVISIONS
Article 1.1. Malaysia-New Zealand Free Trade Agreement
This Agreement establishes a free trade agreement between the Parties, consistent with Article XXIV of GATT 1994 and Article V of GATS, based upon the principles of common interest and cooperation and the goals of free and open trade and investment.
Article 1.2. Objectives
1. The objectives of this Agreement are:
(a) to strengthen trade and economic partnerships between the Parties;
(b) to liberalise trade in goods and services and establish a framework conducive for investment;
(c) to establish a framework to enhance socio-economic cooperation, by way of exchange of information, skills and technology in fields as agreed in this Agreement;
(d) to improve the efficiency and competitiveness of their goods and services sectors by promoting conditions for competition cooperation, for innovation and for mutually beneficial business collaboration; and
(e) to facilitate trade and investment by establishing transparent rules and seeking to minimise transaction costs.
Chapter 1.3. Definitions of General Application
For the purposes of this Agreement, unless otherwise specified:
(a) Agreement means the Malaysia – NewZealand Free Trade Agreement;
(b) APEC means the Asia – Pacific Economic Cooperation;
(c) Customs Administration means:
(i) in relation to Malaysia, the Royal Malaysian Customs, and
(ii) in relation to New Zealand, the New Zealand Customs Service;
(d) Customs duty includes any duty or charges of any kind imposed in connection with the importation of a good, and any surtaxes or surcharges imposed in connection with such importation, but does not include:
(i) charges equivalent to an internal tax imposed consistently with GATT 1994, including excise duties and goods and services tax;
(ii) any anti-dumping or countervailing duty applied consistently with Article VI of GATT 1994, the WTO Agreement on Implementation of Article VI of GATT 1994, and the WTO Agreement on Subsidies and Countervailing Measures; and
(iii) fees or other charges that:
(1) are limited in amount to the approximate cost of services rendered; and
(2) do not represent an indirect protection to domestic goods or a taxation on imports or exports for fiscal purposes.
(e) Customs Valuation Agreement means the WTO Agreement on Implementation of Article VII of GATT 1994;
(f) Days means calendar days, including weekends and holidays;
(g) Enterprise means any entity constituted or organised under applicable laws, whether or not for profit, and whether privately- owned or governmentally-owned or controlled, including any corporation, trust, partnership, sole proprietorship, joint venture, association, or similar organisation, and a branch of an enterprise.
(h) Enterprise of a Party means an enterprise constituted or organised under the law of a Party;
(i) GATS means the WTO General Agreement on Trade in Services;
(j) GATT 1994 means the WTO General Agreement on Tariffs and Trade 1994;
(k) Harmonized Commodity Description and Coding System or HS or 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;
(l) Joint Commission means the Malaysia – New Zealand Free Trade Agreement Joint Commission established under Article 15.1 (Joint Commission);
(m) Measure includes any law, regulation, procedure, requirement or practice;
(n) Originating means qualifying under the rules of origin set out in Chapter 3 (Rules of Origin);
(o) Preferential tariff treatment or preferential tariff rate means the rate of Customs duty applicable to an originating good of the exporting Party in accordance with each Party’s Schedule in Annex 1 (Schedules of Tariff Commitments);
(p) Territory means:
(i) with respect to Malaysia,
(1) the territories of the Federation of Malaysia;
(2) the territorial waters of Malaysia and the seabed and subsoil of the territorial waters, and the airspace above such areas over which Malaysia has sovereignty; and
(3) any area extending beyond the limits of the territorial waters of Malaysia, and the seabed and subsoil of any such area, which has been or may hereafter be designated under the laws of Malaysia and in accordance with international law as an area over which Malaysia has sovereign rights or jurisdiction for the purposes of exploring and exploiting the natural resources, whether living or non-living; and
(ii) with respect to New Zealand, the territory of New Zealand and the exclusive economic zone, seabed and subsoil over which it exercises sovereign rights with respect to natural resources in accordance with international law, but does not include Tokelau;
(q) WTO means the World Trade Organization;
(r) WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done on April 15, 1994;
(s) WTO TRIPS Agreement means the WTO Agreement on Trade- Related Aspects of Intellectual Property Rights.
Chapter TWO. TRADE IN GOODS
Article 2.1. Scope
Except as otherwise provided, this Chapter applies to trade in all goods between the Parties.
Article 2.2. National Treatment
Each Party shall accord national treatment to the goods of the other Party in accordance with Article III of GATT 1994. To this end, Article III of GATT 1994 and its interpretative notes are incorporated into and shall form part of this Agreement, mutatis mutandis.
Article 2.3. Elimination of Customs Duties
Except as otherwise provided in this Agreement and subject to a Party’s Tariff Schedule as set out in Annex 1 (Schedules of Tariff Commitments), as at the date of entry into force of this Agreement each Party shall eliminate all Customs duties on originating goods of the other Party.
Article 2.4. Accelerated Tariff Elimination
1. At the request of either Party, the Parties shall promptly enter into consultations to consider accelerating the elimination of Customs duties on originating goods as set out in its Tariff Schedule in Annex 1 (Schedules of Tariff Commitments).
2. An agreement by the Parties to accelerate the elimination of Customs duties on originating goods shall enter into force after the Parties have exchanged written notification advising that they have completed the necessary internal legal procedures, and on such date or dates as may be agreed between them.
3. A Party may at any time accelerate unilaterally the elimination of Customs duties on originating goods of the other Party set out in its Tariff Schedule in Annex 1 (Schedules of Tariff Commitments). A Party considering doing so shall inform the other Party before the new rate of Customs duties takes effect, or in any event as early as practicable.
Article 2.5. Administrative Fees and Formalities
1. Each Party shall ensure, in accordance with Article VIII.1 of GATT 1994, that all fees and charges of whatever character (other than Customs duties, charges equivalent to an internal tax or other internal charge applied consistently with Article III.2 of GATT 1994, and anti-dumping and countervailing duties) imposed on, or in connection with, import or export are limited in amount to the approximate cost of services rendered and do not represent an indirect protection to domestic goods or a taxation on imports or exports for fiscal purposes.
2. Each Party shall make available in print form, or on the Internet or a comparable computer-based telecommunications network where feasible, a current list of the fees and charges it imposes in connection with importation or exportation.
Article 2.6. Agricultural Export Subsidies
1. For the purposes of this Article, agricultural goods means those products listed in Annex 1 of the WTO Agreement on Agriculture and export subsidies shall have the meaning assigned to that term in Article 1(e) of the WTO Agreement on Agriculture, including any amendment of that Article.
2. The Parties share the objective of the multilateral elimination of all forms of export subsidies for agricultural goods and shall continue to cooperate in an effort to achieve an agreement to their elimination and prevent their reintroduction in any form.
3. Consistent with their rights and obligations under the WTO Agreement, the Parties agree to eliminate, as of the date of entry into force of this Agreement, all forms of export subsidy for agricultural goods destined for the other Party, and to prevent the reintroduction of such subsidies in any form.
Article 2.7. Non-Tariff Measures
Neither Party shall adopt or maintain any non-tariff measures on the importation of any good of the other Party or on the exportation of any good destined for the territory of the other Party, except in accordance with its rights and obligations under the WTO Agreement or in accordance with in this Agreement.
Article 2.8. 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 WTO Agreement on Import Licensing Procedures.
2. Each Party shall promptly notify the other Party of existing import licensing procedures. Thereafter, each Party shall notify the other Party 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 Articles 5.2 and 5.3 of the WTO Agreement on Import Licensing Procedures.
3. Each Party shall respond within 60 days to all reasonable enquiries from the other Party with regard to the criteria employed by its respective licensing authorities in granting or denying import licenses.
Article 2.9. Notification and Consultation
1. Where a Party considers that any proposed or actual measure might materially affect trade in goods between the Parties, that Party shall promptly notify the other Party.
2. On request of the other Party, a Party shall provide information and respond to questions pertaining to any actual or proposed measure within 30 days from the date of the request, whether or not that other Party has been previously notified of that measure.
3. Either Party may request technical discussions with the other Party on any matter affecting trade in goods between the Parties. Unless the Parties mutually determine otherwise, such technical discussions shall be held within 30 days from the date of the request.
4. This Article is without prejudice to the Parties’ rights and obligations under Chapter 16 (Dispute Settlement).
5. This Article does not preclude that a proposed or actual measure or matter affecting trade in goods might be more appropriately addressed under either Chapter 6 (Sanitary and Phytosanitary Measures) or Chapter 7 (Technical Barriers to Trade).
Article 2.10. Committee on Trade In Goods
1. The Parties shall establish a Committee on Trade in Goods (“the Committee”) to consider any matters relating to the implementation of this Chapter and the implementation of Chapter 3 (Rules of Origin) including:
(a) any matter raised pursuant to Article 2.9 (Notification and Consultations);
(b) any other matter affecting trade in goods between the Parties that is not more appropriately addressed by either the Sanitary and Phytosanitary Measures or Technical Barriers to Trade Committees.
2. The Committee shall meet as mutually determined by the Parties.
Chapter THREE. RULES OF ORIGIN
Article 3.1. 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) 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;
(c) FOB means the free-on-board valuation of the good, inclusive of the cost of transport to the port or site of final shipment abroad;
(d) Generally Accepted Accounting Principles means the recognised accounting standards of 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;
(e) Good(s) means any merchandise, product, article or material;
(f) Identical and interchangeable material means materials being of the same kind and commercial quality, possessing the same technical and physical characteristics, and which once they are incorporated into the finished good cannot be distinguished from one another for origin by virtue of mere visual examination;
(g) Indirect material(s) means goods used in the production, testing, or inspection of another good but not physically incorporated into the good, or goods used in the maintenance of buildings or the operation of equipment associated with the production of a good, such as:
(i) fuel, energy, catalysts and solvents;
(ii) equipment, devices, and supplies used for testing or inspection of the goods;
(iii) gloves, glasses, footwear, clothing, safety equipment and supplies;
(iv) tools, dies and moulds;
(v) spare parts and materials used for maintenance of equipment and buildings;
(vi) lubricant, greases, compounding materials and other materials used in production or used to operate equipment and buildings; and
(vii) any other goods which 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;
(h) Material(s) means any matter or substance including raw materials, ingredients, parts, and components used or consumed in the production of goods or physically incorporated into a good subjected to a process in the production of another good;
(i) Minimal operations or processes mean operations or processes which contribute minimally to the essential characteristics of the goods and which, by themselves or in combination, do not confer origin;
(j) Non-originating good(s) or non-originating material(s) means goods or materials which does not qualify as originating under this Chapter;
(k) Originating good(s) or originating material(s) means goods or materials that qualify as originating under this Chapter;
(l) Packing materials and containers for shipment means goods used to protect a good during its transportation other than containers and packaging materials used for retail sale;
(m) Producer means a person who engages in the production of a good; and
(n) Production means methods of obtaining goods, including growing, cultivating, mining, harvesting, raising, breeding, extracting, gathering, collecting, capturing, fishing, farming, trapping, hunting, manufacturing, aquaculture, producing, processing or assembling a good.
Article 3.2. Origin Criteria
For the purposes of this Chapter, goods imported by a Party shall be deemed to be originating goods if they conform to the origin requirements under any one of the following:
(a) goods which are wholly obtained or produced as defined in Article 3.3 (Wholly Obtained or Produced Goods);
(b) goods produced entirely in the territory of one or both of the Parties exclusively from originating materials from one or both of the Parties; or
(c) goods produced in the Parties from non-originating materials provided such goods meet the requirements specified in Annex 2 (Product Specific Rules);
and meet all other applicable requirements of this Chapter.
Article 3.3. Wholly Obtained or Produced Goods
For the purposes of Article 3.2(1)(a) (Origin Criteria), the following goods shall be considered as wholly produced or obtained:
(a) plant and plant goods, including fruit, flowers, vegetables, trees, seaweed, fungi and live plants, grown, cultivated, harvested, picked, or gathered in the territory of a Party;
(b) live animals born and raised in the territory of a Party;
(c) goods obtained from live animals in the territory of a Party;
(d) goods obtained from hunting, trapping, fishing, farming, cultivating, aquaculture, gathering, or capturing in the territory of a Party;
(e) minerals and other naturally occurring substances extracted or taken from the soil, waters or seabed and subsoil, in the territory of a Party;
(f) goods of sea-fishing and other marine goods taken from the high seas, in accordance with the United Nations Convention on the Law of the Sea 1982 (“UNCLOS”), by any vessel registered or recorded and entitled to fly the flag of that Party;
(g) goods produced on board any factory ship registered or recorded and entitled to fly the flag of a Party from the goods referred to in subparagraph (f);
(h) goods taken by a Party, or a person of a Party, from the seabed and subsoil 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 the UNCLOS;
(i) goods which are:
(i) waste and scrap derived from production and consumption in the territory of a Party provided that such goods are fit only for the recovery of raw materials; or
(ii) used goods collected in the territory of a Party provided that such goods are fit only for the recovery of raw materials; and
(j) goods produced or obtained in the territory of a Party solely from products referred to in subparagraphs (a) to (i) or from their derivatives.
Article 3.4. Qualifying Value Content
1. For the purposes of Annex 2 (Product Specific Rules), Qualifying Value Content (“QVC”) of a good shall be calculated as follows:
QVC = FOB–VNM X 100
FOB
where:
QVC is the qualifying value content of a good, expressed as a percentage. VNM is the value of the non-originating materials.
The VNM shall be:
(a) the CIF value at the time of importation of the materials; or
(b) the earliest ascertained price paid or payable for non-originating materials, including materials of undetermined origin in the territory of the Party where the working or processing takes place. When, in the territory of a Party, the producer of a good acquires non- originating materials within that Party, the value of such materials shall not include freight, insurance, packing costs and any other costs incidental to the transport of those materials from the location of the supplier to the location of production.
2. The value of the goods under this Chapter shall be determined in accordance with the Customs Valuation Agreement.
Article 3.5. Cumulative Rule of Origin
For the purposes of Article 3.2 (Origin Criteria), a good which complies with the origin requirements provided therein and which is used in the other Party as a material in the production of another good shall be considered to originate in the Party where working or processing of the finished good has taken place.