3. Each Party shall ensure, subject to appeal or further review as provided in its law, that such decisions of general application shall be implemented by, and shall govern the practice of, the offices or authorities regarding the administrative action at issue.
Chapter 18. General Provisions and Exceptions
Article 18.1. General Exceptions
1. For the purposes of Chapter 2 (Trade in Goods), Chapter 3 (Rules of Origin), Chapter 4 (Customs Procedures and Cooperation), Chapter 5 (Sanitary and Phytosanitary Measures), and Chapter 6 (Standards, Technical Regulations and Conformity Assessment Procedures) of this Agreement, Article XX of GATT 1994 shall be incorporated into and shall form part of this Agreement, mutatis mutandis.
2. For the purposes of Chapter 8 (Trade in Services), Chapter 9 (Telecommunications Services), Chapter 10 (Movement of Natural Persons), and Chapter 15 (Electronic Commerce) of this Agreement, Article XIV of GATS including its footnotes shall be incorporated into and shall form part of this Agreement, mutatis mutandis.
Article 18.2. Security Exceptions
1. Nothing in this Agreement shall be construed:
(a) to require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests;
(b) to prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to fissionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials, or relating to the supply of services, as carried on directly or indirectly for the purpose of supplying or provisioning a military establishment;
(iii) taken so as to protect critical public infrastructures (39) including communications, power and water infrastructures from deliberate attempts intended to disable or degrade such infrastructures;
(iv) taken in time of national emergency or war or other emergency in international relations; or
(c) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
2. The FTA Joint Commission shall be informed to the fullest extent possible of measures taken under subparagraphs 1(b) and (c) and of their termination.
Article 18.3. Taxation
1. Except as provided in this Article, nothing in this Agreement shall apply to taxation measures.
2. This Agreement shall only grant rights or impose obligations with respect to taxation measures where:
(a) corresponding rights and obligations are also granted or imposed under the WTO Agreement;
(b) they are granted or imposed under Article 12.8 (Expropriation and Compensation) of Chapter 12 (Investment); or
(c) they are granted or imposed under Article 12.9 (Transfers) of Chapter 12 (Investment).
3. For the avoidance of doubt, nothing in this Agreement shall apply to a provision that conditions the receipt, or continued receipt, of an advantage relating to the contributions to, or income of, a pension trust, or superannuation fund, or other arrangement to provide pension, or superannuation, or similar benefits on a requirement that the Party maintain continuous jurisdiction, regulation, or supervision over such trust, fund, or other arrangement.
4. Nothing in this Agreement shall affect the rights and obligations of a Party under any tax convention relating to the avoidance of double taxation in force between the Parties. In the event of any inconsistency relating to a taxation measure between this Agreement and any such tax convention, the latter shall prevail.
5. If either Party considers that there is any inconsistency relating to a taxation measure between this Agreement and any tax convention, the relevant authorities shall immediately consult. For the purpose of this paragraph, the relevant authorities shall include:
(a) for Australia, the Treasury and the Department of Foreign Affairs and Trade; and
(b) for Malaysia, the Ministry of Finance.
6. For the purpose of paragraph 5, any consultations between the Parties about whether a measure is a taxation measure shall be done by the competent tax authorities, as stipulated under the laws of each Party.
7. Nothing in this Agreement shall oblige a Party to extend to the other Party the benefit of any treatment, preference or privilege arising from any existing or future agreement relating to the avoidance of double taxation or from the provisions on the avoidance of double taxation in any other international agreement or arrangement by which the Party is bound.
8. For the purpose of this Article, taxation measures do not include any import or customs duties.
Article 18.4. Measures to Safeguard the Balance-of-payments
1. Where a Party is in serious balance-of-payments and external financial difficulties or under threat thereof, it may:
(a) in the case of trade in goods, in accordance with GATT 1994 and the Understanding on the Balance-of-Payments Provisions of GATT 1994, in Annex 1A to the WTO Agreement, adopt restrictive import measures;
(b) in the case of trade in services, adopt or maintain restrictions on trade in services in respect of which it has obligations under Article 8.3 (National Treatment) and Article 8.5 (Market Access) of Chapter 8 (Trade in Services), including on payments or transfers for transactions related to such commitments; and
(c) in the case of investments, adopt or maintain restrictions on payments or transfers related to covered investments as defined in subparagraph (a) of Article 12 (Definitions) of Chapter 12 (Investment).
2. Restrictions adopted or maintained under subparagraphs 1 (b) or (c) shall:
(a) be consistent with the IMF Articles of Agreement;
(b) avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(c) not exceed those necessary to deal with the circumstances described in paragraph 1;
(d) be temporary and be phased out progressively as the situation specified in paragraph 1 improves; and
(e) be applied on a non-discriminatory basis such that the other Party is treated no less favourably than any non-Party.
3. With respect to trade in services and investment:
(a) it is recognised that particular pressures on the balance-of-payments of a Party in the process of economic development or economic transition may necessitate the use of restrictions to ensure, inter alia, the maintenance of a level of financial reserves adequate for the implementation of its programme of economic development or economic transition; and
(b) in determining the incidence of such restrictions, a Party may give priority to economic sectors which are more essential to their economic or development programmes. However, such restrictions shall not be adopted or maintained for the purpose of protecting a particular sector.
4. Any restrictions adopted or maintained by a Party under paragraph 1, or any changes therein, shall be notified promptly to the other Party.
5. A Party adopting or maintaining any restrictions under paragraph 1 shall:
(a) in the case of investment, respond to the other Party that requests consultations in relation to the restrictions adopted by it, if such consultations are not otherwise taking place outside this Agreement; and
(b) in the case of trade in services, if consultations in relation to the restrictions adopted by it are not taking place at the WTO, a Party, if requested, shall promptly commence consultations with the other Party.
Chapter 19. Institutional Provisions
Article 19.1. Free Trade Agreement Joint Commission
1. The Parties hereby establish a Free Trade Agreement Joint Commission (the FTA Joint Commission) which shall meet at the level of, and be co-chaired by, senior officials or as mutually determined by the Parties. Each Party shall be responsible for the composition of its delegation.
2. The functions of the FTA Joint Commission shall be to:
(a) review the implementation and operation of this Agreement;
(b) consider any matter relating to the implementation of this Agreement;
(c) establish, as appropriate, subsidiary bodies to address issues arising under, and to assist implementation of this Agreement;
(d) supervise and coordinate the work of any subsidiary bodies established pursuant to this Agreement;
(e) adopt as appropriate any decision or recommendation of any subsidiary body established pursuant to this Agreement;
(f) report to the Joint Trade Committee, as appropriate; and (g) carry out any other functions as the Parties may agree.
3. The FTA Joint Commission may:
(a) explore measures for the further expansion of trade and investment between the Parties; and
(b) seek to resolve differences or disputes that may arise regarding the interpretation or application of this Agreement pursuant to Article 20.8 (Referral to the FTA Joint Commission) of Chapter 20 (Consultations and Dispute Settlement).
4. The FTA Joint Commission may establish its rules and procedures and, as necessary, financial arrangements.
5. Unless the Parties otherwise agree, the FTA Joint Commission shall convene its inaugural meeting within one year after this Agreement enters into force and then each year, or as otherwise mutually determined by the Parties. The FTA Joint Commission shall convene alternately in Australia and Malaysia, unless the Parties agree otherwise. Special meetings of the FTA Joint Commission may be convened, as mutually agreed by both Parties, within 30 days upon the request of either Party.
Article 19.2. Communications
1. Communications between the Parties on any matter relating to this Agreement shall be in the English language and facilitated through the following contact points:
(a) in the case of Malaysia, the Ministry of International Trade and Industry of Malaysia; and
(b) in the case of Australia, the Department of Foreign Affairs and Trade.
2. On the request of one Party, the contact point of the other Party shall identify the office or official responsible for the matter at issue and assist, as necessary, in facilitating communications with the requesting Party.
Chapter 20. Consultations and Dispute Settlement
Section A. Introductory Provisions
Article 20.1. Objectives
The objective of this Chapter is to provide an effective, efficient and transparent process for consultations and settlement of disputes arising under this Agreement.
Article 20.2. Definitions
For the purposes of this Chapter, the following definitions shall apply unless the context otherwise requires:
(a) Complaining Party means the Party that requests consultations under Article 20.6 (Consultations);
(b) dispute arising under this Agreement means a complaint made by the Complaining Party concerning any measure affecting the operation, implementation or application of this Agreement whereby any benefit accruing to the Complaining Party directly or indirectly under this Agreement is being nullified or impaired, or the attainment of any objective of this Agreement is being impeded, as a result of the failure of the Responding Party to carry out its obligations (40) under this Agreement; and
(c) Responding Party means the Party to which the request for consultations is made under Article 20.6 (Consultations).
Article 20.3. Scope
1. Except as otherwise provided in this Agreement, this Chapter shall apply to the avoidance or settlement of disputes arising under this Agreement. This Chapter shall not apply to the settlement of disputes arising under Chapter 5 (Sanitary and Phytosanitary Measures), Chapter 14 (Competition Policy), Chapter 15 (Electronic Commerce), and Chapter 16 (Economic and Technical Cooperation).
2. This Chapter shall apply subject to such special and additional provisions on dispute settlement contained in other Chapters of this Agreement.
3. Subject to Article 20.5 (Choice of Forum), this Chapter is without prejudice to the rights of a Party to have recourse to dispute settlement procedures available under other agreements to which it is a party.
4. This Chapter may be invoked in respect of measures affecting the observance of this Agreement taken by central, regional or local governments or authorities within the territory of a Party.
Article 20.4. General Provisions
1. This Agreement shall be interpreted in accordance with the customary rules of treaty interpretation of public international law.
2. All notifications, requests and replies made pursuant to this Chapter shall be in writing.
3. The Parties are encouraged at every stage of a dispute to make every effort to reach a mutually agreed solution to the dispute.
4. Unless otherwise specified, any time periods provided for in this Chapter may be modified by mutual agreement of the Parties.
Article 20.5. Choice of Forum
1. Where a dispute concerning any matter arises under this Agreement and under another international agreement to which the Parties are party, the Complaining Party may select the forum in which to address that matter and that forum shall be used to the exclusion of other possible fora in respect of that matter.
2. For the purposes of this Article, the Complaining Party shall be deemed to have selected the forum in which to settle the dispute when it has requested the establishment of an arbitral tribunal pursuant to Article 20.9 (Request for Establishment of Arbitral Tribunals) or requested the establishment of, or referred a matter to, a similar dispute settlement panel under another international agreement.
3. This Article does not apply where the Parties agree in writing that this Article shall not apply to a particular dispute.
Section B. Consultation Provisions
Article 20.6. Consultations
1. Either Party may request consultations with respect to any dispute arising under this Agreement or if any benefit that could have reasonably been expected to accrue to it under Chapter 2 (Trade in Goods), Chapter 3 (Rules of Origin) or Chapter 8 (Trade in Services), is being nullified or impaired as a result of the application of any measure that is not inconsistent with this Agreement. The Responding Party shall accord due consideration to a request for consultations made by the Complaining Party and shall accord adequate opportunity for such consultations.
2. Any request for consultations shall give the reasons for the request, including identification of the measures at issue and an indication of the legal basis for the complaint.
3. The Responding Party shall immediately acknowledge receipt of the request, indicating the date on which the request was received.
4. The Responding Party shall, unless otherwise mutually agreed, reply to the request within seven days after the date of its receipt and shall enter into consultations within a period of no more than:
(a) 10 days after the date of receipt of the request in cases of urgency, including perishable goods; or
(b) 30 days after the date of receipt of the request for all other matters.
5. The Parties shall make every effort to reach a mutually satisfactory solution through consultations. To this end, the Parties shall:
(a) provide sufficient information to enable a full examination of the matter, including how the measures at issue might affect the implementation or application of this Agreement;
(b) treat any confidential or proprietary information exchanged in the course of consultations on the same basis as the Party providing the information; and
(c) endeavour to make available for the consultations personnel of its government agencies or other regulatory bodies who have responsibility for and/or expertise in the matter under consultation.
Article 20.7. Good Offices, Conciliation, Mediation
1. The Parties may at any time agree to good offices, conciliation or mediation. Procedures for good offices, conciliation or mediation may begin at any time and may be terminated at any time.
2. If the Parties agree, procedures for good offices, conciliation or mediation may continue while the matter is being examined by an arbitral tribunal established or reconvened under this Chapter.
3. Proceedings involving good offices, conciliation and mediation and positions taken by the Parties during these proceedings shall be confidential and without prejudice to the rights of either Party in any further or other proceedings.
Section C. Adjudication Provisions
Article 20.8. Referral to the Fta Joint Commission
If consultations undertaken pursuant to Article 20.6 (Consultations) fail to resolve a nullification or impairment complaint under the timeframes and circumstances set out in subparagraphs 1(a)-(b) of Article 20.9 (Request for Establishment of Arbitral Tribunals), the Complaining Party shall, by delivery of written notification to the other Party, refer the complaint to the FTA Joint Commission in accordance with subparagraph 3(b) of Article 19.1 (Free Trade Agreement Joint Commission) of Chapter 19 (Institutional Provisions) for its consideration.
Article 20.9. Request for Establishment of Arbitral Tribunals
1. The Complaining Party may request the establishment of an arbitral tribunal to consider a dispute arising under this Agreement if:
(a) the Responding Party does not enter into consultations in accordance with paragraph 4 of Article 20.6 (Consultations); or
(b) the consultations fail to resolve a dispute within:
(i) 20 days after the date of receipt of the request for consultations in cases of urgency, including perishable goods;
(ii) 60 days after the date of receipt of the request for consultations regarding any other matter; or
(iii) such other period as the Parties may agree.
2. A request made pursuant to paragraph 1 shall identify the specific measures at issue and provide details of the factual and legal basis of the complaint (including the provisions of this Agreement to be addressed by the arbitral tribunal) sufficient to present the problem clearly.
3. The Responding Party shall immediately acknowledge receipt of the request, indicating the date on which the request was received.
4. Where a request is made pursuant to paragraph 1, an arbitral tribunal shall be established in accordance with Article 20.10 (Establishment and Reconvening of Arbitral Tribunals).
Article 20.10. Establishment and Reconvening of Arbitral Tribunals
1. An arbitral tribunal requested pursuant to Article 20.9 (Request for Establishment of Arbitral Tribunals) shall be established in accordance with this Article.
2. Unless the Parties otherwise agree, the arbitral tribunal shall consist of three arbitrators. All appointments and nominations of arbitrators under this Article shall conform fully with the requirements in paragraphs 9 and 10.
3. Within five days of the date of the receipt of a request under Article 20.9 (Request for Establishment of Arbitral Tribunals), the Parties shall enter into consultations with a view to reaching agreement on the procedures for composing the arbitral tribunal, taking into account the factual, technical and legal circumstances of the dispute. The Parties may agree to use any of the optional procedures specified in this Chapters Annex on Rules of Procedure for Arbitral Tribunal Proceedings (Rules of Procedure Annex). Any procedures for composing the arbitral tribunal which are agreed under this paragraph shall be used for the composition of the arbitral tribunal and shall also be used for the purposes of paragraphs 12 and 13.
4. If the Parties are unable to reach agreement on the procedures for composing the arbitral tribunal within 15 days of the date of the receipt of the request referred to in paragraph 3, either Party may, at any time thereafter, notify the other Party that it wishes to use the procedures set forth in paragraphs 5 to 7. Where such a notification is made, the arbitral tribunal shall be composed in accordance with paragraphs 5 to 7.
5. The Complaining Party shall appoint one arbitrator within 10 days of the date of the receipt of the notification referred to in paragraph 4. The Responding Party shall appoint one arbitrator within 20 days of the date of the receipt of the notification referred to in paragraph 4.
6. Following the appointment of the arbitrators in accordance with paragraph 5, the Parties shall agree on the appointment of the third arbitrator who shall serve as the chair of the arbitral tribunal. To assist in reaching this agreement, each Party may provide to the other Party a list of up to three nominees for appointment as the chair of the arbitral tribunal. If the Parties have not agreed on the chair of the arbitral tribunal within 15 days of the appointment of the second arbitrator, the two appointed arbitrators shall designate by common agreement the third arbitrator who shall chair the arbitral tribunal.
7. If all three arbitrators have not been appointed within 45 days of the date of the receipt of the notification referred to in paragraph 4, either Party may request the Director-General of the WTO to make the remaining appointments within a further period of 15 days. Any lists of nominees which were provided under paragraph 6 shall also be provided to the Director-General of the WTO and may be used in making the required appointments.
8. The date of establishment of the arbitral tribunal shall be the date on which the last arbitrator is appointed.
9. All arbitrators shall:
(a) have expertise or experience in law, international trade, other matters covered by this Agreement, or the resolution of disputes arising under international trade agreements;
(b) be chosen strictly on the basis of objectivity, reliability, and sound judgement;
(c) be independent of, and not be affiliated with or take instructions from, either Party;
(d) not have dealt with the matter in any capacity; and
(e) disclose to the Parties, information which may give rise to justifiable doubts as to their independence or impartiality.
10. Unless the Parties otherwise agree, arbitrators shall not be nationals of a Party. In addition, the chair of the arbitral tribunal shall not have his or her usual place of residence in the territory of a Party.
11. Arbitrators shall serve in their individual capacities and not as government representatives, nor as representatives of any organisation. The Parties shall not give them instructions nor seek to influence them as individuals with regard to matters before an arbitral tribunal.
12. If an arbitrator appointed under this Article resigns or becomes unable to act, a successor arbitrator shall be appointed in the same manner as prescribed for the appointment of the original arbitrator and shall have all the powers and duties of the original arbitrator. The work of the arbitral tribunal shall be suspended during the appointment of the successor arbitrator.
13. Where an arbitral tribunal is reconvened under Article 20.15 (Compliance Review) or Article 20.16 (Compensation and Suspension of Concessions or other Obligations) the reconvened arbitral tribunal shall, where possible, have the same arbitrators as the original arbitral tribunal. Where this is not possible, the replacement arbitrator(s) shall be appointed in the same manner as prescribed for the appointment of the original arbitrator(s), and shall have all the powers and duties of the original arbitrator(s).
Article 20.11. Functions of Arbitral Tribunals
1. An arbitral tribunal shall make an objective assessment of the matter before it, including an objective assessment of:
(a) the facts of the case;
(b) the applicability of the provisions of this Agreement cited by the Parties; and
(c) whether the Responding Party has failed to carry out its obligations under this Agreement.
2. An arbitral tribunal shall have the following terms of reference unless the Parties agree otherwise within 20 days from the date of the establishment of an arbitral tribunal:
"To examine, in the light of the relevant provisions of this Agreement, the matter referred to in the request for establishment of an arbitral tribunal made pursuant to Article 20.9 (Request for Establishment of Arbitral Tribunals), and to make such findings and if applicable, suggestions provided for in this Agreement."
The arbitral tribunal shall make its findings in accordance with this Agreement.
3. The arbitral tribunal shall set out in its report: