4. When the investigating authority of a Party receives a written application by or on behalf of its domestic industry for the initiation of an anti-dumping investigation in respect of a good from the other Party, the former Party shall notify the other Party of the application as far in advance of the initiation of such investigation as possible.
5. As soon as possible after accepting an application of an anti-subsidy investigation, and in any event before initiating an investigation, the Party shall provide written notification of its receipt of the application to the other Party and invite the other Party for consultations with the aim of clarifying the situation as to the matters referred to in the application and arriving at a mutually agreed solution.
6. The investigation authority of a Party shall ensure, before a final determination is made, disclosure of all essential facts under consideration which form the basis for the decision whether to apply definitive measures. This is without prejudice to Article 6.5 of the Anti-Dumping Agreement and Article 12.4 of the SCM Agreement. Disclosures shall be made in writing and allow interested parties sufficient time to make their comments. The investigating authority shall give due consideration to the comments submitted by the interested parties.
7. The Parties agree, when imposing measures covered by this Chapter, to give priority, to the extent possible, to measures that cause minimal economic injury and do not create serious obstacles to the implementation of this Agreement.
Article 7.3. Global Safeguard Measures
1. Each Party retains its rights and obligations under Article XIX of GA TT 1994 and the Safeguards Agreement. This Agreement does not confer any additional rights or obligations on the Parties with regard to actions taken under Article XIX of GATT 1994 and the Safeguards Agreement.
2. A Party taking a global safeguard measure shall exclude imports of an originating good of the other Party as long as its share of imports of the product concerned in the importing Party does not exceed three (3) per cent of total imports of the concerned product, provided that developing country Members with less than three (3) per cent import share collectively account for not more than nine (9) per cent of total imports of the product concerned.
3. Where, as a result of a global safeguard measure, a safeguard duty is imposed, the margin of preference shall be maintained.
Article 7.4. Cooperation and Institutional Arrangement
1. The Parties are encouraged to cooperate in the area of trade remedies, specifically in the dissemination of information to all relevant stakeholders and private parties.
2. The Parties shall establish a Subcommittee on Trade Remedies m accordance with Article 14.1.3 (Joint Committee).
Article 7.5. Bilateral Safeguards
Definitions
1. For the purposes of this Article: domestic industry means, with respect to an imported good, the producers as a whole of the like or directly competitive good operating within the territory of a Party, or those producers whose collective production of the like or directly competitive good constitutes a major proportion of the total domestic production of that good; serious injury means a significant overall impairment in the position of a domestic industry; 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 bilateral safeguard measure means a measure described in paragraph 2.
General
2. If, as a result of the reduction or elimination of a customs duty under this Agreement, an originating good of the other Party is being imported into the territory of a Party in such increased quantities, in absolute terms or relative to domestic production, and under such conditions that the imports of such originating good from the other Party causes serious injury, or threat thereof, to a domestic industry producing a like or directly competitive good, the Party may: (a) suspend the further reduction of any rate of customs duty on the good provided for under this Agreement; (b) increase the rate of customs duty on the good to a level not to exceed the lesser of: (i) the most-favoured nation ("MFN") applied rate of duty on the good in effect at the time the action is taken; and (ii) the MFN applied rate of duty on the good in effect on the day immediately preceding the date this Agreement enters into force.
3. The Parties agree that neither tariff rate quotas nor quantitative restrictions are permissible forms of bilateral safeguard measures.
Notification and Consultation
4. A Party shall notify the other Party m writing or by electronic communication: (a) within seven days of initiation of an investigation described m paragraph 7, (b) immediately upon making a finding of serious injury or threat thereof caused by increased imports; and (c) immediately upon application of provisional or a definitive bilateral safeguard measure or extending the measure.
5. In making the notifications referred to in paragraphs 4(b) and 4(c), the Party proposing to apply a safeguard measure shall provide the other Party with all pertinent information, which shall include evidence of serious injury or threat thereof caused by the increased imports, precise description of the good involved and the proposed measure and expected duration.
6. A Party proposing to apply a definitive safeguard measure shall provide adequate opportunity for prior consultations with the other Party as far in advance, of taking any such measure, with a view to reviewing the information arising from the investigation, exchanging views on the measure and reaching an agreement on the compensation set out in paragraph 20. The Parties shall in such consultations, review, inter alia, the information provided under paragraph 5, to determine:
(a) compliance with this Article;
(b) whether any proposed measure should be ta.ken; and
(c) the appropriateness of the proposed measure, including consideration of alternative measures.
Conditions and Limitations
7. A Party shall apply a safeguard measure only following an investigation by the Party's competent authorities in accordance with Articles 3 and 4.2(c) of the Safeguards Agreement, and to this end, Articles 3 and 4.2(c) of the Safeguards Agreement are incorporated into and form part of this Agreement, mutatis mutandis.
8. In the investigation described in paragraph 7, the Party shall comply with the requirements of Article 4.2(a) of the Safeguards Agreement, and to this end, Article 4.2(a) of the Safeguards Agreement is incorporated into and form part of this Agreement, mutatis mutandis.
9. Each Party shall ensure that its competent authorities complete any such .investigation within eight (8) months of its date of initiation which may be extended up to one year by the competent authority.
10. Neither Party may apply 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 two years if the competent authorities of the importing Party determine, in conformity with the procedures specified in this Article, that the 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, provided that the total period of application of a bilateral safeguard measure, including the period of initial application and any extension thereof, shall not exceed four years.
11. No bilateral safeguard measure shall be applied to the import of an originating good for a period of one year from the date of commencement of tariff reduction or tariff elimination for that originating good provided for under this Agreement.
12. When a Party terminates a bilateral safeguard measure, the rate of customs duty for the originating good subject to that bilateral safeguard measure shall be the rate that would have been in effect but for that bilateral safeguard measure.
13. No bilateral safeguard measure shall be applied again to the import of a product that has been previously subject to such measure for a period of time equal to the period during which the previous measure was applied or one year since the expiry of such measure, whichever is longer.
14. Notwithstanding the provisions of paragraph 13, a safeguard measure with a duration of 180 days or less may be applied again to the import of a product if:
(a) at least one year has elapsed since the date of introduction of a safeguard measure on the import of that product; and
(b) such a safeguard measure has not been applied on the same product more than twice in the four year period immediately preceding the date of introduction of the measure.
15. Where the expected duration of the bilateral safeguard measures is over one year, the Party applying the bilateral safeguard measure shall progressively liberalise it at regular intervals during its period of application.
Provisional Measures
16. In critical circumstances where delay would cause damage that would be difficult to repair, a Party may apply a bilateral safeguard measure on a provisional basis pursuant to a preliminary determination by its competent authorities that there is clear evidence that imports of an originating good from the other Party have increased as the result of the reduction or elimination of a customs duty under this Agreement, and such imports have caused serious injury, or threat thereof, to the domestic industry.
17. If a Party's competent authorities make a preliminary determination, the Party shall make such determination available to interested parties, and shall provide interested parties at least 15 days to comment and submit their arguments with respect to such determinations.
18. The duration of any provisional measure shall not exceed 200 days, during which time the Party shall comply with the requirements of paragraphs 4, 5, 7 and 8.
19. The Party shall promptly refund any tariff increases if the investigation described in paragraph 7 does not result in a finding that the requirements of paragraph 2 are met. The duration of any provisional measure shall be counted as part of the period described in paragraph 10(b).
Compensation
20. No later than 30 days after it applies a bilateral safeguard measure, a Party shall afford an opportunity for the other Party to consult regarding appropriate 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. The applying Party shall provide such compensation as the Parties mutually agree.
21. If the Parties are unable to agree on compensation within 30 days of the consultations, the Party against whose originating good the measure is applied may suspend the application of concessions with respect to originating goods of the applying Party that have trade effects substantially equivalent to the bilateral safeguard measure. The Party exercising the right of suspension may suspend the application of concessions only for the minimum period necessary to achieve the substantially equivalent effects.
22. A Party against whose good the bilateral safeguard measure is applied shall notify the Party applying the bilateral safeguard measure in writing at least 30 days before it suspends concessions in accordance with paragraph 21.
23. The right to talce action to suspend the application of concessions referred to in paragraph 21 shall not be exercised for: (a) The first two years that the measure is in effect; and (b) The first three years during which the bilateral safeguard measure is in effect, where it has been extended beyond two years, provided that the measure bas been taken as a result of an absolute increase in imports and that such measure conforms to the provisions of this Section.
24. The applying Party's obligation to provide compensation under paragraph 21 and the other Party's right to suspend concessions under paragraph 21 shall cease on the termination of the bilateral safeguard measure.
Article 7.6. Dispute Settlement
The Parties shall have recourse to the dispute settlement mechanism set by this agreement for any dispute under Article 5.
Chapter 8. INVESTMENT
Article 8.1. UAE-Kenya Bilateral Investment Agreement
1. The Parties note the existence of and reaffirm the Agreement Between the Government of the Republic of Kenya and the Government of the United Arab Emirates on the Promotion and Protection of Investments, signed at Abu Dhabi on 23 November 2014 ("UAE-Kenya Bilateral Investment Agreement").
2. The Parties agree to revise the existing UAE-Kenya Bilateral Investment Agreement with a view to making it more comprehensive in coverage.
Article 8.2. Promotion and Facilitation of Investments
The Parties affirm their desire to promote an attractive investment climate and expand trade in products and services. The Parties shall take appropriate measures to encourage and facilitate the exchange of goods and services and to secure favorable conditions for long-term economic development and diversification of trade and investment between the two countries.
Article 8.3. Subcommittee on Investment
The Parties shall establish a Subcommittee on Investment, which shall be composed of representatives of both Parties, in accordance with Article 14.1 (Joint Committee).
Article 8.4. Non-Application of Dispute Settlement
The Parties agree that nothing m this Chapter shall be subject to any dispute settlement mechanism.
Chapter 9. TRADE IN SERVICES
Article 9.1. Definitions
For the purposes of this Chapter:
a 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;
aircraft repair and maintenance services mean such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and do not include so-called line maintenance;
airport operation and management services means the supply of air terminal, airfield and other airport infrastructure operation services on a fee or contract basis. Airport operation services do not include air navigation services;
commercial presence means any type of business or professional establishment, including through
(a) the constitution, acquisition or maintenance of a juridical person; or
(b) the creation or maintenance of a branch or representative office,
within the territory of a Party for the purpose of supplying a service;
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;
ground-handling services means the supply at an airport, on a fee or contract basis, of the following: airline representation, administration and supervision; passenger handling; baggage handling; ramp services; catering (except the preparation of the food); air cargo and mail handling; fueling of an aircraft; aircraft servicing and cleaning; surface transport; and flight operations, crew administration and flight planning. Ground handling services do not include self-handling; security; line maintenance; aircraft repair and maintenance; or management or operation of essential centralised airport infrastructure such as de-icing facilities, fuel distribution systems, baggage handling systems, and fixed intra-airport transport systems;
juridical person 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/fund, partnership, joint venture, sole proprietorship or association;
juridical person of the other Party means a juridical person which is either:
(a) constituted or otherwise organised under the law of that other Party, and is engaged in substantive business operations in the territory of:
(i) that Party; or
(ii) is owned or controlled by natural persons of that other Party or by juridical persons that meet all the conditions of subparagraph (a)(i); or
(b) in the case of the supply of a service through commercial presence, owned or controlled by:
(i) natural persons of that Party; or
(ii) juridical persons of that other Party identified under subparagraph (a);
a juridical person is:
(a) "owned" by persons of a Party if more than 50 percent of the equity interest in it is beneficially owned by persons of that Party;
(b) "controlled" by persons of a Party if such persons have the power to name a majority of its directors or otherwise to legally direct its actions; or
(c) "affiliated" with another person when it controls, or is controlled by, that other person; or when it and the other person are both controlled by the same person;
measure means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
measures by Parties means measures taken by:
(a) central, regional or local governments and authorities; and
(b) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
In fulfilling its obligations and commitments under the Agreement, each Party shall take such reasonable measures as may be available to it to ensure their observance by regional and local governments and authorities and non-governmental bodies within its territory;
measures by Parties affecting trade in services include measures in respect of:
(a) the purchase, payment or use of a service;
(b) 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
(c) the presence, including commercial presence, of persons ofa Party for the supply of a service in the territory of the other Party;
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;
natural person of the other Party means a national or a permanent resident (1) of the UAE or Kenya;
person means either a natural person or a juridical person;
sector of a service means:
(a) with reference to a specific commitment, one or more, or all, subsectors of that service, as specified in a Party's Schedule; or
(b) otherwise, the whole of that service sector, including all of its subsectors;
selling and marketing of air transport services mean 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. These activities do not include the pricing of air transport services nor the applicable conditions;
services include any service in any sector except services supplied in the exercise of governmental authority;
service consumer means any person that receives or uses a service;
service of the other Party means a service which is supplied:
(a) from or in the territory of that other Party, or in the case of maritime transport, by a vessel registered under the laws of that other Party, or by a person of that other Party which supplies the service through the operation of a vessel and/or its use in whole or in part; or
(b) in the case of the supply of a service through commercial presence or through the presence of natural persons, by a service supplier of that other Party;
service supplier means any natural or juridical person that seeks to supply or supplies a service; (2)
supply of a service includes the production, distribution, marketing, sale and delivery of a service;
trade in services is defined as the supply of a service:
(i) Mode 1 -from the territory of a Party into the territory of the other Party;
(ii) Mode 2 -in the territory of a Party to the service consumer of the other Party;
(iii) Mode 3-by a service supplier of a Party, through commercial presence in the territory of the other Party;
(iv) Mode 4 -by a service supplier of a Party, through presence of natural persons of a Party in the territory of the other Party;
Air traffic rights mean the right for scheduled and non-scheduled services to operate and/or to carry passengers, cargo and mail for remuneration or hfre 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.
Article 9.2. Objectives
Recognising the importance of trade in services for the growth and development of the Parties' economies, the objectives of this chapter are to:
(a) progressively liberalise trade in services to provide market access for services and service suppliers of the Parties; and
(b) pursue services trade liberalisation in line with Article V of the GATS by expanding the depth and scope ofliberalisation and increasing and developing the export of services, while fully preserving the right of the Parties to regulate and to introduce new regulations.
Article 9.3. Scope and Coverage
1. This Chapter shall apply to measures by Parties affecting trade in services.
2. This Chapter shall not app1y to:
(a) laws, regulations, or requirements governing the procurement by government agencies of services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the supply of services for commercial sale;
(b) services supplied in the exercise of governmental authority;
(c) subsidies or grants provided by a Party, including govemment-supported loans, guarantees, and insurance; and
(d) 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.
Nothing in this Chapter or its Annexes shall prevent a Party from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provi.ded that such measures are not applied in such a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific commitment. (3)
(e) measures affecting air traffic rights or measures affecting services directly related to the exercise of air traffic rights, other than measures affecting:
(i) aircraft repair and maintenance services;
(ii) the selling and marketing of air transport services;
(iii) computer reservation system services;
(iv) ground-handling services; or
(v) airport operation services.
3. The rights and obligations of the Parties in respect of Financial Services shall be governed by the Annex on Financial Services of the GATS, which is hereby incorporated into and made part of this Agreement.
4. The rights and obligations of the Parties in respect of Telecommunications Services shall be governed by the Annex on Telecommunications Services of the GATS, which is hereby incorporated into and made part of this Agreement.
Article 9.4. Progressive Liberalisation
1. In pursuance of the objectives of this Agreement, the Parties shall enter into successive rounds of negotiations, beginning not later than one year from the date of entry into force of the Agreement and periodically thereafter, with a view to achieving a progressively higher level of liberalisation.
2. The process of liberalisation shall take place with due respect for national policy objectives and the level of development of each Party. Specific commitments assumed under this Article shall not be construed to require any Party to compensate for any inherent competitive disadvantages which result from the foreign character of the relevant services or service suppliers.
3. The process of progressive liberalisation will be directed towards increasing the general level of specific commitments undertaken by the Parties under this Agreement.
Article 9.5. Schedules of Specific Commitments
1. Each Party shall set out in a schedule, called its Schedule of Specific Commitments, the specific commitments it undertakes in accordance with Articles 9.7, 9.8, and 9.9.
2. With respect to sectors where such commitments are undertaken, each 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;
(d) where appropriate, the time-frame for implementation of such commitments; and
(e) the date of entry into force of such commitments.
3. Measures inconsistent with both Article 9.7 and Article 9.8 shall be inscribed .in the column relating to Article 9.7. In this case the inscription will be considered to provide a condition or qualification to Article 9.8 as well.