Article 4.12. Border Agency Cooperation
Each Party shall ensure that its authorities and agencies responsible for border controls and procedures dealing with the importation, exportation, and transit of goods cooperate with one another and coordinate their activities in order to facilitate trade pursuant to this chapter.
Article 4.13. Expedited Shipments
Each Party shall adopt or maintain expedited customs procedures for goods entered through air cargo facilities while maintaining appropriate customs control and selection. These procedures shall:
(a) Provide for information necessary to release an express shipment to be submitted and processed before the shipment arrives;
(b) Allow a single submission of information covering all goods contained in an express shipment, such as a manifest through, if possible, electronic means; (1)
(c) To the extent possible, provide for the release of certain goods with a minimum of documentation;
(d) Under normal circumstances, provide for express shipments to be released as soon as possible after submission of the necessary customs documents, provided the shipment has arrived;
(e) Apply to shipments of any weight or value recognizing that a Party may require formal entry procedures as a condition for release, including declaration and supporting documentation and payment of customs duties, based on the good's weight or value; and
(f) Provide that, under normal circumstances, no customs duties will be assessed on express shipments valued at or below a fixed amount set under the Party's law. (2)
Article 4.14. Review and Appeal
1. Each Party shall ensure that any person to whom it issues a determination on a customs matter has access to:
(a) at least one level of administrative review of determinations by its Customs Administration independent (3) of either the official or office responsible for the decision under review; and
(b) judicial or quasi-judicial review of decisions taken at the final level of administrative review.
2. Each Party shall ensure that its procedures for appeal and review are carried out in a non-discriminatory and timely manner.
3. Each Party shall ensure than an authority conducting a review or appeal under paragraph 1 notifies the person in writing of its determination or decision in the review or appeal, and the reasons for the determination or decision.
Article 4.15. Customs Cooperation
1. With a view to further enhancing customs cooperation through the exchange of information and the sharing of best practices between the Customs Administration to secure and facilitate lawful trade, the Customs Administrations of the Parties will endeavour to conclude and sign a CMAA.
2. The Parties shall, for the purposes of applying their customs laws and to give effect to the provisions of the CMAA endeavour to:
(a) cooperate and assist each other in the prevention and investigation of offences against Customs legislations;
(b) upon request, provide each other information to be used in the enforcement of their customs laws; and
(c) cooperate in the research, development and application of new customs procedures, in the training and exchange of personnel, sharing of best practices, and in other matters of mutual interest.
3. Assistance under this Chapter shall be provided in accordance with the domestic law of the requested party.
4. The Parties shall exchange official contact points with a view to facilitating the effective implementation of this Chapter.
Article 4.16. Confidentiality
1. Nothing in this Agreement shall be construed to require a Party to furnish or allow access to confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice the legitimate commercial interests of particular enterprises, public or private. Any information received under this Agreement shall be treated as confidential pursuant to the terms of the CMAA.
2. Each Party shall maintain, in accordance with its domestic laws, the confidentiality of information obtained pursuant to this Chapter and shall protect that information from disclosure that could prejudice the competitive position of the persons providing the information.
Article 4.17. Subcommittee on Customs Procedures and Trade Facilitation
The Parties agree to establish a Subcommittee on Customs Procedures and Trade Facilitation (CPTF Subcommittee) in accordance with Article 14.1.3 (Joint Committee).
Chapter 5. SANITARY AND PHYTOSANITARY MEASURES
Article 5.1. Definitions
1. The definitions in Annex A of the SPS Agreement are incorporated into this Chapter and shall form part of this Chapter, mutatis mutandis.
2. In addition, for the purposes of this Chapter: competent authority means a government institution, body or organization responsible for measures and matters referred to in this Chapter; emergency measure means a sanitary or phytosanitary measure that is applied by an importing Party to the other Party to address an urgent problem of human, animal or plant life or health protection that arises or threatens to arise in the Party applying the measure; and contact point mean the government body of a Party that is responsible for the implementation of this Chapter and the coordination of that Party's participation in Subcommittee activities under Article 5.11.
Article 5.2. Objectives
The objectives of this Chapter are to:
(a) protect human, animal, or plant Life or health in the territories of the Parties while facilitating trade between them;
(b) enhance collaboration on the implementation of the WTO SPS Agreement;
(c) strengthen communication, consultation, and cooperation between the Parties, and particularly between the Parties' competent authorities;
(d) ensure that sanitary and phytosanitary measures implemented by a Party do not create unjustified barriers to trade;
(e) enhance transparency in and understanding of the application of each Party's sanitary and phytosanitary measures;
(f) encourage the development and adoption of science-based international standards, guidelines, and recommendations, and promote their implementation by the Parties; and
(g) enhance the sanitary and phytosanitary measures through risk-based approach in decision-making.
Article 5.3. Scope
This Chapter shall apply to all sanitary and phytosanitary measures of a Party that may, directly or indirectly, affect trade between the Parties.
Article 5.4. General Provisions
1. The Parties reaffirm their rights and obligations under the WTO SPS Agreement 2. Nothing in this Agreement shall limit the rights and obligations that each Party has under the WTO SPS Agreement.
Article 5.5. Equivalence
1. The Parties recognize that the principle of equivalence, as provided for under Article 4 of the SPS Agreement, has mutual benefits for both exporting and importing countries.
2. The Parties shall follow the procedures for determining the equivalence of SPS measures and standards developed by the WTO SPS Committee and relevant international standard setting bodies in accordance with Annex A of the SPS Agreement, mutatis mutandis.
3. Compliance by an exported product with SPS measures or standard of the exporting Party that has been accepted as equivalent to SPS measures and standards of the importing Party shall not remove the need for that product to comply with any other relevant mandatory requirements of the importing Party.
Article 5.6. Risk Assessment
1. The Parties shall ensure that any SPS measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles, and is not maintained without scientific evidence.
2. Notwithstanding paragraph 1, where relevant scientific evidence is insufficient, a Party may provisionally adopt SPS measures on the basis of available pertinent information, including from relevant international organizations as well as from SPS measures applied by non-parties. In such circumstances the importing Party shall seek to obtain the additional information necessary for a more objective assessment of risk and review the SPS measure within a reasonable period of time. To this end, the importing Party may request scientific and other relevant information from the exporting Party.
3. To the extent possible, the Parties shall endeavour to expedite risk assessments, including when undertaking, inter alia, pest and disease risk assessments.
Article 5.7. Emergency Measures
If a Party adopts an emergency measure that is necessary for the protection of human, animal or plant life or health, the Party shall promptly notify the measure by using the WTO SPS notification submission system as a means of emergency notification. If a Party adopts an emergency measure, it shall review that measure periodically and make available the results of that review to the other Party upon request.
Article 5.8. Transparency
1. The Parties recognize the value of transparency in the adoption and application of sanitary and phytosanitary measures and the importance of sharing information about such measures on an ongoing basis.
2. In implementing this Article, each Party shall take into account relevant guidance of the WTO SPS Committee and international standards, guidelines and recommendations.
3. Each Party agrees to notify a proposed sanitary or phytosanitary measure that may have an effect on the trade of the other Party, by using the WTO SPS notification submission system as a means of notification.
4. A Party shall provide to the other Party, on request, information on sanitary and phytosanitary measures related to the importation of a good into that Party's territory.
Article 5.9. Cooperation
1. The Parties shall encourage enhancing technical capacity for the implementation and monitoring of SPS measures.
2. The Parties shall explore opportunities for further cooperation, collaboration, and information exchange on sanitary and phytosanitary matters of mutual interest, consistent with this Chapter. The Parties shall cooperate to facilitate the implementation of this Chapter.
3. The Parties shall cooperate and may jointly identify work on sanitary and phytosanitary matters with the goal of eliminating unnecessary barriers to trade between them.
Article 5.10. Adaptation to Regional Conditions (Regionalization and Compartmentalization)
Each Party shall ensure that its sanitary and phytosanitary measures take into account relevant factors, including different geographic conditions, consistent with Article 6 of the WTO SPS Agreement.
Article 5.11. Subcommittee on Sanitary and Phytosanitary Measures
1. For the purposes of the effective implementation and operation of this Chapter, the Parties hereby establish a Subcommittee on Sanitary and Phytosanitary Measures ("Subcommittee on SPS Measures").
2. The Subcommittee shall be composed of government representatives of each Party responsible for sanitary and phytosanitary matters.
3. The Subcommittee on SPS Measures shall report to the Joint Committee established under Chapter 14 (Administration of the Agreement and Institutional Provisions).
4. The Subcommittee on SPS Measures shall serve as a forum to:
(a) improve the Parties' understanding of sanitary and phytosanitary issues that relate to the implementation of the SPS Agreement and this Chapter;
(b) exchange information on the implementation of this Chapter;
(c) share information on a sanitary or phytosanitary issue that has arisen between them;
(d) monitor the implementation and operation of this Chapter; and
(e) enhance communication and cooperation on sanitary and phytosanitary matters.
5. The Subcommittee on SPS Measures shall establish its terms of reference at its first meeting and may revise those terms as needed, and shall thereafter meet as needed at its own discretion or at the direction of the Joint Committee.
6. If a Party considers that there is a disruption to trade on sanitary or phytosanitary grounds, it may request technical consultations through the Subcommittee on SPS Measures with a view to facilitating trade. On receiving a request under this paragraph, the other Party shall respond to such a request, and shall endeavour to provide any requested information and respond to questions pertaining to the matter, and if requested, enter into consultations within a reasonable period of time after receiving such a request. The Parties shall make every effort to reach a mutually satisfactory resolution through consultations within a period of time agreed upon by the Parties.
Article 5.12. Competent Authorities and Contact Points
1. To facilitate communication on matters covered by this Chapter, each Party shall notify the other Party of its contact point within 30 days of the entry into force of this Agreement.
2. For the purpose of implementing this Chapter, the competent authorities of the Parties shall be those listed in Annex 5A (Competent Authorities).
3. Each Party shall inform the other Party of any change in competent authority or in its contact point within a reasonable period of time.
Chapter 6. TECHNICAL BARRIERS TO TRADE
Article 6.1. Objectives
The objective of this Chapter is to facilitate trade, by eliminating unnecessary technical barriers to trade, enhancing transparency, and promoting greater regulatory cooperation and good regulatory practices.
Article 6.2. Scope
1. This Chapter shall apply to the preparation, adoption, and application of all standards, technical regulations, and conformity assessment procedures of central level government bodies that may affect trade in goods between the Parties.
2. Notwithstanding paragraph 1, this Chapter shall not apply to:
(a) purchasing specifications prepared by a governmental body for its production or consumption requirements; or
(b) sanitary or phytosaoitary measures which are covered by Chapter 5 (Sanitary and Phytosanitary Measures).
Article 6.3. Rights and Obligations
The Parties reaffirm their existing rights and obligations with respect to each other under the TBT Agreement.
Article 6.4. Standards
1. Each Party shall use relevant international standards, guides, and recommendations, to the extent provided in Articles 2.4 and 5.4 of the TBT Agreement, as a basis for its technical regulations and conformity assessment procedures.
2. In determining whether an international standard, guide, or recommendation within the meaning of Articles 2 and 5 and Annex 3 of the TBT Agreement exists, each Party shall base its determination on the principles set out in the "Decision of the Committee on Principles for the Development of International Standards, Guides and Recommendations with relation to Articles 2, 5 and Annex 3 of the Agreement", adopted on 13 November 2000 by the WTO Committee on Technical Barriers to Trade (Annex 2 to PART 1 of GffBT/1/Revl3), and any subsequent version thereof.
3. The Parties shall encourage cooperation between their respective national standardising organisations in areas of mutual interest, in the context of their participation in international standardising bodies, to ensure that international standards developed within such organisations are trade facilitating and do not create unnecessary obstacles to international trade.
Article 6.5. Technical Regulations
1. The Parties shall use international standards as a basis for preparing their technical regulations, unless those international standards are ineffective or inappropriate for achieving the legitimate objective pursued. Each Party shall, upon request of the other Party, provide its reasons for not having used international standards as a basis for preparing its technical regulations.
2. Each Party shall give positive consideration to a request by the other Party to negotiate arrangements for achieving the equivalence of technical regulations.
3. Each Party shall, upon request of the other Party, explain the reasons why it has not accepted a request by the other Party to negotiate such arrangements.
4. The Parties shall strengthen communications and coordination with each other, where appropriate, in the context of discussions on the equivalence of technical regulations and related issues in international fora, such as the WTO Committee on Technical Barriers to Trade.
Article 6.6. Conformity Assessment Procedures
1. The Parties recognise that, depending on the specific sectors involved, a broad range of mechanisms exists to facilitate the acceptance in a Party's territory of the results of conformity assessment procedures conducted in the other Party's territory. Such mechanisms may include:
(a) recogniying existing international multilateral arrangements and mutual recognition agreements among conformity assessment bodies;
(b) promoting mutual recognition of conformity assessment results by the other Party, through recognizing the other Party's designation of conformity assessment bodies;
(c) encouraging voluntary arrangements between conformity assessment bodies in the territory of each Party;
(d) accepting a supplier's declaration of conformity where appropriate;
(e) harmonizing criteria for the designation of conformity assessment bodies, or
(f) other mechanisms as mutually agreed by the Parties.
2. Each Party shall ensure, whenever possible, that the results of conformity assessment procedures conducted in the territory of the other Party are accepted, even when those procedures differ from its own, provided that those procedures offer a satisfactory assurance of applicable technical regulations or standards equivalent to its own procedures. Where a Party does not accept the results of a conformity assessment procedure conducted in the territory of the other Party, it shall, on request of the other Party, explain the reasons for its decision.
3. In order to enhance confidence in the consistent reliability of conformity assessment results, the Parties may consult on matters such as the technical competence of the conformity assessment bodies involved.
4. Each Party shall give positive consideration to a request by the other Party to negotiate agreements or arrangements for the mutual recogniti.on of the results of their respective conformity assessment procedures. The Parties shall consider the possibility of negotiating agreements or arrangements for mutual recognition of the results of their respective conformity assessment procedures in areas mutually agreed upon.
5. The Parties shall endeavour to intensify their exchange of information on acceptance mechanisms with a view to facilitating the acceptance of conformity assessment results.
6. Each Party is encouraged to permit participation of conformity assessment bodies located in the territory of the other Party in its conformity assessment procedures under conditions no less favourable than those accorded to bodies located within the territory of the other Party.
Article 6.7. Cooperation
1. The Parties shall encourage cooperation between their respective organizations responsible for standardization, conformity assessment, accreditation, and metrology, witb the view to:
(a) increasing the mutual understanding of their respective systems;
(b) enhancing cooperation between the Parties' regulatory agencies on matters of mutual interests including health, safety and environmental protection;
(c) facilitating trade by implementing good regulatory practices; and avoiding unnecessary obstacles to trade between the Parties; and
(d) enhancing cooperation, as appropriate, to ensure that technical regulations and conformity assessment procedures are based on international standards or the relevant parts of them and do not create unnecessary obstacles to trade between the Parties.
2. In order to achieve the objectives set out in paragraph 1, the Parties shall, as mutually agreed and to the extent possible, cooperate on regulatory issues, which may include the:
(a) promotion of good regulatory practices based on risk management principles;
(b) exchange of information with a view to improving the quality and effectiveness of their technical regulations;
(c) development of joint initiatives for managing risks to health, safety, or the environment, and preventing deceptive practices; and
(d) exchange of market surveillance information where appropriate.
3. Exchange information in the field of standardization, conformity assessment, accreditation in the field of halal certification including procedures, guidelines, to facilitate trade between both the Parties.
Article 6.8. Transparency
1. Each Party shall, upon request of the other Party, provide information, including the objective of, and rationale for, a technical regulation or conformity assessment procedure which the Party has adopted or proposes to adopt and may affect the trade between the Parties, within a reasonable period of time as agreed between the Parties.
2. When a proposed technical regulation or conformity assessment procedures is notified to the WTO, a Party shall give appropriate consideration to the comments received from the other Party, and, upon request of the other Party, provide written answers to the comments made by the other Party.
3. The Parties shall ensure that all adopted technical regulations and conformity assessment procedures are publicly available.
Article 6.9. Contact Points
1. For the purposes of this Chapter, the Contact Points are: (a) For Kenya: the Ministry of Investment, Trade and Industry, State Department for Trade or its successor; and (b) For the UAE: the Standards and Regulation Sector, the Ministry of Industry and Advanced Technology, or its successor.
2. Each Party shall promptly notify the other Party of any change to its Contact Point.
Article 6.10. Information Exchange and Technical Discussions
1. Any information or explanation that a Party provides upon request of the other Party pursuant to this Chapter shall be provided in print or electronically within a reasonable period of time. Each Party shall endeavour to respond to such a request within sixty (60) days of the request.
2. All communication between the Parties on any matter covered by this Chapter shall be conducted through the Contact Points designated under Article 6.9. 3. On request of a Party for technical discussions on any matter arising under this Chapter, the Parties shall endeavour, to the extent practicable, to enter into technical discussions through the Contact Points designated under Article 6.9.
Article 6.11. Subcommittee on Technical Barriers to Trade
The Parties shall establish a Subcommittee on Technical Barriers to Trade in accordance with Article 14.1.3 (Joint Committee).
Chapter 7. TRADE REMEDIES
Article 7.1. Scope
1. With respect to the UAE, this Chapter shall apply to investigations and measures that are taken under the authority of the Ministry of Economy or its successor pursuant to Federal Law No. ( 1) of 2017 on Anti-dumping, Countervailing and Safeguard Measures, including its subsequent amendments and replacements.
2. With respect to Kenya, this Chapter shall apply to investigations and measures that are taken under the authority of the Kenya Trade Remedies Agency or its successor, pursuant to Trade Remedies Act, 2017, including its subsequent amendments and replacements.
Article 7.2. Anti-Dumping and Countervailing Measures
1. The Parties reaffirm their rights and obligations under the provisions of Articles VI and XVI of GATT 1994; the Anti-Dumping Agreement; and the SCM Agreement.
2. The Parties recognize the right to apply measures consistent with Article VI of the GATT 1994, the Anti-Dumping Agreement, and the SCM Agreement, and the importance of promoting transparency in anti-dumping and countervailing duty proceedings and of ensuring the opportunity of all interested parties to participate meaningfully in such proceedings.
3. Except otherwise stipulated in this Article, this Agreement does not confer any additional rights or obligations on the Parties with regard to anti-dumping and countervailing measures including the initiation and conduct of anti-dumping and anti-subsidy investigations as well as the application of anti-dumping and/or countervailing measures.