Title
COMPREHENSIVE ECONOMIC PARTNERSHIP AGREEMENT BETWEEN THE REPUBLIC OF KENYA AND THE UNITED ARAB EMIRATES
Preamble
PREAMBLE
The Governments of the United Arab Emirates (hereinafter referred to as the "UAE") and the Republic of Kenya (hereinafter referred to as "Kenya");
hereinafter being referred to individually as a "Party" and collectively as "the Parties";
RECOGNISING the strong economic and political ties between the UAE and Kenya, and wishing to strengthen these links. The Parties further wish to pursue the establishment of a free trade area with the East African Community, thus establishing close and lasting relations;
DETERMINED to build on their respective rights and obligations under the Marrakesh Agreement Establishing the World Trade Organization;
CONSCIOUS of the dynamic and rapidly changing global environment brought about by globalisation and technological progress that presents various economic and strategic challenges and opportunities for the Parties;
DETERMINED to develop and strengthen their trade and economic relations through the liberalisation and expansion of trade in goods and services in their common interest and for their mutual benefit;
AIMING to promote transfer of technology and expand trade;
AIMING to facilitate trade by promoting efficient and transparent customs procedures that reduce costs and ensure predictability for their importers and exporters;
DETERMINED to support the growth and development of micro, small and medium-sized enterprises by enhancing their ability to participate in and benefit from the opportunities created by this Agreement;
AIMING to establish a clear, transparent, and predictable legal and commercial framework for business planning, that supports further expansion of trade and investment;
RECOGNIZING their inherent right to regulate and resolved to preserve the flexibility of the Parties to set legislative and regulatory priorities, and protect legitimate public welfare objectives, such as health, safety, environmental protection, conservation of living or non-living exhaustible natural resources, integrity and stability of the financial system, and public morals, in accordance with the rights and obligations provided in this Agreement;
HAVE AGREED, in pursuit of the above, to conclude the following Agreement:
Body
Chapter I. INITIAL PROVISIONS AND GENERAL DEFINITIONS
Article 1.1. Establishment of a Comprehensive Economic Partnership Agreement
The Parties hereby establish a Comprehensive Economic Partnership Agreement between the UAE and Kenya, in accordance with the Decision of 28 November 1979 on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries ("Enabling Clause") and Article V of General Agreement on Trade in Services ("GATS"); and agree to deepen economic cooperation between the Parties. The Parties further will use their best endeavours towards negotiating a Comprehensive Economic Partnership Agreement between the UAE and the East African Community.
Article 1.2. Objectives
The objectives of this Agreement are to liberalise and facilitate trade in goods and services, stimulate investment between the Parties, promote opportunities for trade liberalisation of goods and services, and strengthen development of the digital economy, infrastructure and MSMEs, in accordance with the provisions of this Agreement.
Article 1.3. General Definitions
For the purposes of this Agreement:
Agreement means this Comprehensive Economic Partnership Agreement ("CEPA") between the UAE and the Republic of Kenya;
Agreement on Agriculture means the Agreement on Agriculture in Annex lA to the WTO Agreement;
Anti-Dumping Agreement means the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 in Annex IA to the WTO Agreement;
Customs Valuation Agreement means the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 in Annex 1A to the WTO Agreement;
days means calendar days, including weekends and holidays;
GATS means the General Agreement on Trade in Services in Annex lB to the WTO Agreement;
GATT 1994 means the General Agreement on Tariffs and Trade 1994 in Annex 1A to the WTO Agreement;
GPA means the Agreement on Government Procurement in Annex 4 to the WTO Agreement;
Harmonized System or HS means the Harmonized Commodity Description and Coding System, including its General Rules for the Interpretation, Section Notes, Chapter Notes and Subheading Notes;
Import Licensing Agreement means the Agreement on Import Licensing Procedures in Annex 1 A to the WTO Agreement;
Joint Committee means the Joint Committee established pursuant to Article 14.1 (Joint Committee);
measure means any measure, whether in form of a law, regulation, rnle, procedure, decision, practice, administrative action, or any other form;
Safeguards Agreement means the Agreement on Safeguards in Annex 1 A to the WTO Agreement;
SCM Agreement means the Agreement on Subsidies and Countervailing Measures in Annex 1 A to the WTO Agreement;
SPS Agreement means the Agreement on the Application of Sanitary and Phytosanitary Measures in Annex lA to the WTO Agreement;
TBT Agreement means the Agreement on Technical Barriers to Trade in Annex 1A to the WTO Agreement;
TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights in Annex 1C to the WTO Agreement;
WTO means the World Trade Organization; and
WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh, 15 April 1994.
Article 1.4. Geographical Scope
This Agreement shall apply:
(a) For the UAE, its land territories, internal waters, including its Free Zones, territorial sea, including, the seabed, and subsoil thereof, and airspace over such territories and waters, as well as the contiguous zone, the continental. shelf and exclusive economic zone, over which UAE has sovereignty, sovereign rights or jurisdiction as defined in its laws, and in accordance with international law;
(b) For the Republic of Kenya, all territory of Kenya in state boundaries, including internal territory and territorial waters and also the exclusive economic zone, maritime zones, and all installations erected thereon, as defined in its national law, in accordance with international law, over which Kenya exercises its sovereign rights with respect to exploration, exploitation, conservation and management of natural resources of the seabed, its subsoil and the superjacent waters.
Article 1.5. Relation to other Agreements
1. The Parties affirm their existing rights and obligations with respect to each other under the WTO Agreement and other agreements to which such Parties are party.
2. In the event of any inconsistency between this Agreement and other agreements to which the Parties may be party to either jointly or otherwise, the Parties shall immediately consult with each other with a view to finding a mutually satisfactory solution.
Article 1.6. Regional and Local Government
1. Each Party shall take such reasonable measures as may be available to it to ensure observance of the provisions of this Agreement by the regional and local governments and authorities and by non-governmental bodies in the exercise of governmental powers delegated by central, regional and local governments and authorities within its territories. 2. This provision is to be interpreted and applied in accordance with the principles set out in paragraph 12 of Article XXIV of the GA TT 1994 and paragraph 3 of Article I of the GATS.
Article 1.7. Transparency
1. Each Party shall publish or otherwise make publicly available their laws, regulations, as well as their respective international agreements which may affect the operation of this Agreement.
2. Without prejudice to Article 1.8, each Party shall respond within a reasonable period of time to specific questions and provide, upon request, information to each other on matters referred to in paragraph 1.
Article 1.8. Confidential Information
1. Each Party shall, in accordance with its laws and regulations, maintain the confidentiality of information designated as confidential by tbe other Party.
2. Nothing in this Agreement shall require a Party to disclose confidential information, the djsclosure of which would impede law enforcement of the Party, or othetwise be contrary to the public interest, or which would prejudice the legitimate commercial interests of any economic operator.
Chapter 2. TRADE IN GOODS
Article 2.1. Definitions
For the purposes of this Chapter:
Customs Administration means the authority that, according to the legislation of each Party, is responsible for the administration and enforcement of customs laws and regulations of the Party. In the case of the UAE, it shall be the Federal Authority for Identity, Citizenship, Customs & Port Security and each of the individual Emirates Customs Authorities. In the case of Kenya, it shall be the Customs and Border Control Department; and
customs duty refers to any duty or charge of any kind imposed in connection with the importation of a product, including any form of surtax or surcharge in connection with such importation, but does not include any:
(a) charge equivalent to an internal tax imposed in conformity with Article III of the GATT 1994;
(b) anti-dumping or countervailing or safeguard duty that is applied consistently with the provisions of Article VI of the GA TT 1994, the Anti-Dumping Agreement, the SCM Agreement, or Safeguards Agreement; or
(c) fee or other charge in connection with importation commensurate with the cost of services rendered and which does not represent a direct or indirect protection for domestic goods or a taxation of imports for fiscal purposes.
Article 2.2. Objectives
1. The principal objective of this Chapter is to create a liberalised market for trade in goods in accordance with Article 1.2 (Objectives).
2. The specific objective of this Chapter is to promote each Party's trade in goods through:
(a) progressive elimination of tariffs;
(b) elimination of non-tariff barriers;
(c) enhanced efficiency of customs procedures, trade facilitation and transit;
(d) enhanced cooperation in the areas of technical barriers to trade and sanitary and pbytosanitary measures;
(e) development and promotion of value chains;
(f) enhanced socio-economic development, diversification and industrialization in the Parties; and
(g) promotion of regional integration.
Article 2.3. Scope and Coverage
Except as otherwise provided in this Agreement, this Chapter shall apply to trade in goods between the Parties.
Article 2.4. National Treatment
Each Party shall accord national treatment to the goods of the other Party in accordance with Article III of the GATT 1994, including its interpretative notes. To this end, Article III of the GA TT 1994 and its interpretative notes are incorporated into and form part of this Agreement, mutatis mutandis.
Article 2.5. Classification of Goods and Transposition of Schedules
1. The classification of goods in trade between the Parties shall be that set out in the respective tariff nomenclature of each Party in conformity with the Harmonized System ("HS") and its legal notes and amendments.
2. Each Party shall ensure that the transposition of its Schedule of Tariff Commitments does not afford less favourable treatment to an originating good of the other Party. If the process of transposition results in a disagreement on the applicable tariff, then this matter shall be referred to the Joint Committee.
3. A Party may introduce new tariff splits, provided that the preferential conditions applied in the new tariff splits are not less preferential than those applied originally.
Article 2.6. Import and Export Restrictions
Except as otbeiwise provided in this Agreement, neither Party may adopt or maintain any prohibition or restriction on the importation of any good of the other Party or on the exportation or sale for export of any good destined for the territory of the other Party, except in accordance with Article XI of GATT 1994 and its interpretative notes, and to this end Article XI of GA TT 1994 and its interpretative notes are incorporated into and made part of this Agreement, mutatis mutandis.
Article 2.7. Export Duties
1. The Parties may regulate export duties on goods originating from their territories.
2. Any export duties imposed on, or in connection with, the exportation of goods, applied pursuant to this Article shall be applied to goods exported to all destinations on a non-discriminatory basis.
3. A Party that introduces export duties on, or in connection with, the exportation of goods in accordance with paragraph 2, shall notify the Joint Committee within 90 days of the introduction of said export duties.
Article 2.8. Import Licensing
1. Neither Party may adopt or maintain a measure that is inconsistent with the Import Licensing Agreement (1), which is hereby incorporated into and made part of this Agreement, mutatis mutandis.
2. Before applying any new or modified import licensing procedure, a Party shall publish it in such a manner as to enable Governments and traders to become acquainted with it, including through publication on an official Government internet site. Upon request of the other Party, the Party shaJJ exchange information concerning its implementation in a reasonable period.
Article 2.9. Customs Valuation
The Parties shall determine the customs value of goods traded between them in accordance with the provisions of Article VII of the GATT 1994 and the Customs Valuation Agreement, mutatis mutandis.
Article 2.10. Export Subsidies
1. Neither Party shall adopt or maintain any export subsidy on any good destined for the territory of the other Party in accordance with the SCM Agreement and the Agreement on Agriculture.
2. The Parties reaffirm their commitments made in the WTO Ministerial Conference Decision on Export Competition adopted in Nairobi on 19 December 2015, including the elimination of scheduled export subsidy entitlements for agricultural goods.
Article 2.11. Restrictions to Safeguard the Balance-of-Payments
1. The Parties shall endeavour to avoid the imposition of restrictive measures for balance-of-payments purposes.
2. Any such measures taken for trade in goods shall be in accordance with Article XII of the GA TT 1994 and the Understanding on the Balance-of-Payments Provisions of the GATT 1994, the provisions of which are incorporated into and made part of this Agreement, mutatis mutandis.
Article 2.12. Administrative Fees and Formalities
1. Each Party shall ensure, in accordance with Article VIII: 1 of GATT 1994 and its interpretive notes and Article 6 of the WTO Agreement on Trade Facilitation, that all fees and charges of whatever character (other than import and export duties, charges equivalent to an internal tax or other internal charges applied consistently with Article III:2 of GATT 1994, and measures applied in accordance with the provisions of Articles VI or XIX of the GA TT 1994, the Anti-Dumping Agreement, the SCM Agreement, the Safeguards Agreement, or Article 22 of the DSU) imposed on, or in connection with, importation or exportation of goods are limited in amount to the approximate cost of services rendered, and shall not represent an indirect protection to domestic goods or a taxation of imports or exports for fiscal purposes.
2. Each Party shall promptly publish details and shall make such information available on the internet regarding the fees and charges it imposes in connection with importation or exportation.
Article 2.13. Non-Tariff Measures
1. Unless otherwise provided, neither Party shall adopt or maintain any non-tariff measure on the importation of any good of the other Party or on the exportation of any good 9estined for the territory of the other Party, except in accordance with its WTO rights and obligations or this Agreement.
2. Each Party shall ensure that its laws, regulations, procedures and administrative rulings relating to non-tariff measures are not prepared, adopted or applied with a view to, or with the effect of, resulting in non-tariff barriers, consequently creating unnecessary obstacles in trade with the other Party.
3. If a Party considers that a non-tariff measure of the other Party is an unnecessary obstacle to trade, that Party may nominate such a non-tariff measure for review by the Subcommittee on Trade in Goods by notifying the other Party at least 30 days before the date of the next scheduled meeting of the Subcommittee on Trade in Goods. A nomination of a non-tariff measure for review shall include the reasons for its nomination, a description of how the measure adversely affects trade between the Parties, and if possible, suggested solutions. The Subcommittee on Trade in Goods shall immediately review the measure with a view to securing a mutually agreed solution to the matter. Review by the Subcommittee on Trade in Goods is without prejudice to the Parties' rights under Chapter 16 (Dispute Settlement).
Article 2.14. State Trading Enterprises
Nothing in this Agreement shall be construed to prevent a Party from maintaining or establishing a state trading enterprise in accordance with Article XVII of the GA TT 1994 and the Understanding on the Interpretation of Article XVII of the GAIT 1994, mutatis mutandis.
Article 2.15. Temporary Admission of Goods
1. Each Party shall, in accordance with its respective domestic law, grant temporary admission free of customs duties for the following goods imported from the other Party, regardless of their origin:
(a) professional and scientific equipment, including their spare parts, and including equipment for the press or television, software, and broadcasting and cinematographic equipment, that are necessary for carrying out the business activity, trade, or profession of a person who qualifies for temporary entry pursuant to the laws of the importing Party;
(b) goods intended for display, demonstration or use at theatres, exhibitions, fairs, or other similar events;
(c) commercial samples and advertising films and recordings;
(d) goods admitted for sports purposes;
(e) containers and pallets that are used for the transportation of equipment or used for refilling; and
(f) goods entered for completion of processing.
2. Each Party shall, on request of the importer and for reasons deemed valid by its Customs Authority, extend the time limit for temporary admission beyond the period initially fixed.
3. Neither Party may condition the temporary admission of a good referred to in paragraph 1, other than to require that the good:
(a) not be sold or leased while in its territory;
(b) be accompanied by a security in an amount no greater than the custom duties and any other tax imposed on imports that would otherwise be owed on entry or final importation, releasable on exportation of the good;
(c) be capable of identification when exported;
(d) be exported in accordance with the time period granted for temporary admission in accordance with its domestic law related to the purpose of the temporary admission;
(e) not be admitted in a quantity greater than is reasonable for its intended use; or
(f) be otherwise admissible into the importing Party's territory under its law.
4. If any condition that a Party imposes under paragraph 3 has not been fulfilled, that Party may apply the customs duty and auy other charge that would normally be owed on the importation of the good and any other charges or penalties provided for under its law.
5. Each Party through its Customs Authority shall adopt and maintain procedures providing for the expeditious release of goods admitted under this Article. To the extent possible, such procedures shall provide that when such a good accompanies a national or resident of the other Party who is seeking temporary entry, the good shall be released simultaneously with the entry of that national or resident.
6. Each Party shall permit a good temporarily admitted under this Article to be exported through a customs port other than that through which it was admitted in accordance with its customs procedures.
7. Each Party shall provide that the importer of a good admitted under this Article shall not be liable for failure to export the good on presentation of satisfactory proof to the importing Party that the good has been destroyed within the original period fixed for temporary admission or any lawful extension. A Party may condition relief of liability under this paragraph by requiring the importer to receive prior approval from the Customs Authority of the importing Party before the good can be so destroyed.
Article 2.16. Goods Re-Entered after Repair or Alteration
1. Neither Party shall apply a customs duty to a good, regardless of its origin, that re-enters its territory in accordance with its laws and procedures after that good bas been temporarily exported from its territory to the territory of the other Party for repair or alteration, regardless of whether such repair or alteration could be performed in the territory from which the good was exported, except that a customs duty or other taxes may be applied to the addition resulting from the repair or alteration that was performed in the territory of the other Party.
2. Neither Party shall apply a customs duty to a good, regardless of its origin, imported temporarily from the territory of the other Party for repair or alteration.
3. For purposes of this Article, "repair" or "alteration" does not include an operation or process that:
(a) destroys a good's essential characteristics or creates a new or commercially different good;
(b) transforms an unfinished good into a finished good; or
(c) results in a change of the classification at a six-digit level of the Harmonized System (HS).
Article 2.17. Duty-Free Entry of Commercial Samples of Negligible Value and Printed Advertising Materials
Each Party, in accordance with its respective domestic legislation, shall grant duty-free entry to commercial samples of negligible value, and to printed advertising materials, imported from the territory of the other Party, regardless of their origin, but may require that:
(a) such samples be imported solely for the solicitation of orders for goods or services provided from the territory of the other Party or a non-party; or
(b) such advertising materials be imported in packets, that each contain no more than one copy of each such material, and that neither the materials nor the packets form part of a larger consignment.
Article 2.18. Subcommittee on Trade In Goods
1. The Parties hereby establish a Subcommittee on Trade in Goods under the Joint Committee comprising representatives of each Party.
2. The Subcommittee shall meet once a year or as often as the Parties consider necessary to consider any matter arising under this Chapter.
3. The functions of the Subcommittee shall include, inter alia:
(a) monitoring the implementation and administration of this Chapter;
(b) promoting trade in goods between the Parties, including through consultations on accelerating and broadening the scope of preferential treatment or tariff elimination under this Agreement and other issues as appropriate;
(c) addressing barriers to trade in goods between the Parties, including those related to non-tariff measures, including import and export restrictions, which may restrict trade in goods between the Parties and, if appropriate, referring such matters to the Joint Committee for its consideration;
(d) providing advice and recommendations to the Joint Committee on cooperation needs regarding trade in goods matters;