1. Without prejudice to Article 57 (Committee on Trade Facilitation), each customs administration may at any time request consultations with the other customs administration on any matter arising from the operation or implementation of this Chapter. Such consultations shall be conducted through the relevant contact points, and shall take place within 30 days of the request, unless the customs administrations of the Parties mutually determine otherwise.
2. In the event that such consultations fail to resolve any such matter, the requesting Party may refer the matter to the Committee on Trade in Goods for consideration.
3. Each customs administration shall designate one or more contact points for the purposes of this Chapter and provide details of such contact points to the other Party. The customs administrations of the Parties shall notify each other promptly of any amendments to the details of their contact points.
4. The customs administrations may consult each other on any trade facilitation issues arising from procedures to secure trade and the movement of means of transport between the Parties.
Article 68. Implementation
The obligations of the Parties under this Chapter shall enter into force as follows:
(a) Article 60 (Advance Rulings) shall enter into force 3 years after the date of entry into force of this Agreement; and
(b) Article 65 (Release of Goods) shall enter into force one year after the date of entry into force of this Agreement.
Chapter 5. TRADE REMEDIES
Section A. Global Safeguard Measures
Article 69. Global Safeguard Measures
1. Each Party retains its rights and obligations under Article XIX of the GATT 1994 and the Safeguards Agreement.
2. No Party may apply, with respect to the same product, at the same time:
(a) a bilateral safeguard measure; and
(b) a measure under Article XIX of the GATT 1994 and the Safeguards Agreement.
Section B. Bilateral Safeguard Measures
Article 70. Imposition of a Safeguard Measure
1. A Party may apply a measure described in paragraph 2, during the transition period only, if as a result of the reduction or elimination of a customs duty pursuant to this Agreement, or as a result of unforeseen developments in conjunction with the existence of a preferential tariff under this Agreement, an originating product is being imported into the Party’s territory in such increased quantities, in absolute terms or relative to domestic production, and under such conditions as to constitute a substantial cause of serious injury, or threat thereof, to a domestic industry producing a like or directly competitive product.
2. If the conditions in paragraph 1 are met, a Party may to the extent necessary to prevent or remedy serious injury, or threat thereof, and facilitate adjustment:
(a) suspend the further reduction of any rate of duty provided for under this Agreement on the product; or
(b) increase the rate of duty on the product to a level not to exceed the lesser of:
(i) the most-favoured-nation applied rate of duty in effect at the time the measure is applied; and
(ii) the base tariff rate as provided in the schedule to Annex 2 (Tariff Elimination) (2)
Section B. Bilateral Safeguard Measures
Article 71. Standards for a Safeguard Measure
1. No Party may maintain a 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;
(b) for a period exceeding 2 years; except that the period may be extended by up to one year if the competent authorities determine, in conformity with the procedures set out in Article 72 (Investigation Procedures and Transparency Requirements), that the safeguard 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; or
(c) beyond the expiration of the transition period.
2. In order to facilitate adjustment in a situation where the expected duration of a safeguard measure is over one year, the Party applying the measure shall progressively liberalize it at regular intervals during the period of application.
3. On the termination of a safeguard measure, the rate of duty shall be the customs duty set out in the Party’s Schedule to Annex 2 (Tariff Elimination) as if the safeguard measure had never been applied.
Article 72. Investigation Procedures and Transparency Requirements
1. A Party shall apply a safeguard measure only following an investigation by the Party’s competent authority 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 made part of this Agreement, mutatis mutandis.
2. In determining whether increased imports of an originating product of the other Party have caused serious injury or are threatening to cause serious injury to a domestic industry, the competent authority of the importing Party shall follow the rules in Article 4.2(a) and Article 4.2(b) of the Safeguards Agreement; and to this end, Article 4.2(a) and Article 4.2(b) of the Safeguards Agreement are incorporated into and made part of this Agreement, mutatis mutandis.
Article 73. Provisional Safeguard Measures
1. In critical circumstances, where delay would cause damage which would be difficult to repair, a Party may apply a provisional safeguard measure pursuant to a preliminary determination that there is clear evidence that the increased imports have caused or are threatening to cause serious injury to a domestic industry.
2. The duration of the provisional safeguard measure may not exceed 180 days and will adopt any of the forms set out in paragraph 2 of Article 70 (Imposition of a Safeguard Measure) of this Section during which the pertinent requirements of Article 70 (Imposition of a Safeguard Measure) and Article 72 (Investigation Procedures and Transparency Requirements) shall be met. The guarantees or the received funds arising from the imposition of a provisional safeguard measure shall be promptly liberated or refunded, as it corresponds, when the investigation does not determine that increased imports have caused or threaten to cause serious injury to a domestic industry. The duration of any such provisional safeguard measure shall be counted as a part of the period of a safeguard measure.
Article 74. Notification and Consultations
1. A Party shall promptly notify the other Party, in writing, on:
(a) initiating an investigation under this Section;
(b) applying a provisional measure; and
(c) taking a final decision on the application of a safeguard measure.
2. A Party shall provide to the other Party a copy of the report of its competent investigating authority required under paragraph 1 of Article 72 (Investigation Procedures and Transparency Requirements).
3. On request of a Party whose product is subject to a safeguard investigation under this Section, the Party conducting that investigation shall enter into consultations with the other Party to review a notification under paragraph 1 or any public notice or report that the competent investigating authority has issued in connection with the investigation.
4. Where a Party applies a provisional safeguard measure referred to in Article 73 (Provisional Safeguard Measures), on request of the other Party, consultations shall be initiated after applying such a provisional measure.
Article 75. Compensations
1. A Party applying a safeguard measure for an overall period beyond 2 years shall, in consultation with the other Party, provide mutually-agreed trade liberalizing 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 measure during the period of extension of the measure beyond the aforementioned 2 years. The Party applying the safeguard measure shall provide opportunity for such consultations no later than 30 days after the decision to extend the measure. Such consultations shall take place prior to the effective date of the extension.
2. If the Parties are unable to reach agreement on compensation within 30 days of the commencement of consultations, the exporting Party may suspend the application of substantially equivalent concessions to the trade of the Party applying the safeguard measure.
3. The exporting Party shall notify the other Party in writing in the English language at least 30 days before suspending concessions under paragraph 2.
4. The obligation to provide compensation under paragraph 1 and the right to suspend concessions under paragraph 2 shall terminate on the date of the termination of the safeguard measure.
Article 76. Definitions
For purposes of this Section:
competent investigating authority means:
(a) for China, the Ministry of Commerce, or its successor; and
(b) for Peru, the Ministry of Foreign Trade and Tourism, or its successor;
domestic industry means, with respect to an imported product, the producers as a whole of the like or directly competitive product operating within the territory of a Party, or those producers whose collective production of the like or directly competitive product constitutes a major proportion of the total domestic production of such products;
safeguard measure means a measure described in paragraph 2 of Article 70 (Imposition of a Safeguard Measure);
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;
substantial cause means a cause which is important and not less than any other cause;
directly competitive product refers to the product which, having different physical characteristics and composition to those of the imported product, fulfills the same functions of the latter, satisfies the same needs, and is commercially substitutable;
like product refers to the identical product, that is, the product that is the same in all aspects as the imported product, or to another product which, in spite of not being the same in all aspects, has very like characteristics to those of the imported product;
terms will be computed in natural or calendar days, except as otherwise stated; and
transition period means 8 years for the products that eliminate all tariff from the entry into force of the Agreement; means 10 years for the products for which the tariff elimination period is between 5-8 years, according to Annex 2 (Tariff Elimination), as the case may be; and for the products for which the tariff elimination period is 10 years or more, transition period means the tariff elimination period for the product set out in Annex 2 (Tariff Elimination) plus 5 years.
Section C. Antidumping and Countervailing Measures
Article 77. Antidumping and Countervailing Measures
1. The Parties agree to abide fully by the provisions of the WTO Agreement on Implementation of Article VI of the GATT 1994, and the WTO Agreement on Subsidies and Countervailing Measures.
2. The Parties agree to observe the following practices in antidumping cases between them:
(a) immediately following the receipt of a properly documented application from an industry in one Party for the initiation of an antidumping investigation in respect of products from the other Party, the Party that has received the properly documented application shall immediately notify the other Party of the receipt of the application;
(b) during any antidumping investigation involving the Parties, the Parties agree to conduct all notification letters between the Parties in English; and
(c) a Party’s investigating authority shall take due account of any difficulties experienced by one or more exporters of the other Party in supplying information requested and provide any assistance practicable; on request of an exporter of the other Party, a Party’s investigating authority shall make available the timeframes, procedures and any documents necessary for the offering of an undertaking.
3. Without prejudice to the relevant provisions of WTO Agreement on Implementation of Article VI of the GATT 1994 regarding notification at the initiation stage to the exporting member whose export product is under investigation, the competent investigating authority of a Party shall notify the other Party of such initiation of the investigation procedure and send the model questionnaire of the investigation for the exporter or producer concerned and the list of the main known exporters or producers to the other Party.
Upon the receipt of the notification and information mentioned in the previous paragraph, the Party may notify relevant trade or industry associations or disclose the information to other parties concerned in a timely manner by the publicly available means, and may provide relevant information to the other Party as early as practicable.
4. For purposes of this Section, investigating authority is:
(a) for China, Ministry of Commerce, or its successor; and
(b) for Peru, the National Institute of the Defense of the Competition and the Protection of Intellectual Property, or its successor.
Section D. Cooperation
Article 78. Cooperation
1. The Parties may establish a cooperation mechanism between the investigating authorities of each Party to ensure each Party has a clear understanding of the practices adopted by the other Party in trade remedies investigations.
2. For purposes of this Section, competent investigating authority is:
(a) for China, the Ministry of Commerce, or its successor; and
(b) for Peru, the Ministry of Foreign Trade and Tourism, or its successor (for bilateral safeguard measures), and the National Institute of the Defense of the Competition and the Protection of Intellectual Property, or its successor (for antidumping and countervailing measures, and global safeguard measures).
Chapter 6. SANITARY AND PHYTOSANITARY MEASURES
Article 79. Objectives
The objectives of this Chapter are:
(a) to protect human, animal or plant life or health in the territory of each Party;
(b) to facilitate bilateral trade and to provide a framework to address sanitary and phytosanitary matters that may, directly or indirectly, affect trade between the Parties;
(c) to ensure that the Parties’ sanitary and phytosanitary measures shall not be applied in a manner which would constitute an unjustified barrier to trade;
(d) to strengthen capacities for the implementation of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (hereinafter referred to as “SPS Agreement”); and
(e) to strengthen mechanisms, communication and cooperation between Chinese and Peruvian government agencies having responsibility for matters covered by this Chapter and to deepen mutual understanding of each Party’s regulations and procedures.
Article 80. Scope and Coverage
1. This Chapter shall apply to all sanitary and phytosanitary measures of a Party that may, directly or indirectly, affect trade between the Parties.
2. This Chapter does not apply to standards, technical regulations and conformity assessment procedures as defined in the WTO Agreement on Technical Barriers to Trade.
Article 81. Reaffirmation of SPS Agreement
1. The Parties reaffirm and incorporate in this Chapter their existing rights and obligations with respect to each other under the SPS Agreement.
2. The Parties recognize and apply the Decisions on the application of the Agreement adopted by the WTO Committee on Sanitary and Phytosanitary Measures (WTO/SPS Committee).
Article 82. Definitions
For purposes of this Chapter:
(a) definitions under Annex A of the SPS Agreement, definitions provided in the glossary of harmonized terms of the relevant international organizations, and definitions agreed by the Parties and adopted by the SPS Committee established in this Chapter, are applicable; and
(b) relevant international organizations refers to the organizations mentioned in the SPS Agreement.
Article 83. General Provisions to Facilitate Trade
1. The relevant national authorities on sanitary and phytosanitary matters may achieve cooperation and/or coordination agreements to facilitate trade.
2. These agreements shall aim to deepen and/or define mechanisms necessary to achieve transparent and streamlined procedures, including recognition of equivalence; recognition of pest or disease-free areas or low pest or disease prevalence zones; control, inspection, approval; among other matters of mutual interest for the Parties.
3. At the request of the other Party, each Party shall give favourable consideration to any SPS specific proposal made by the other Party in order to facilitate bilateral trade between them.
Article 84. Harmonization
1. In accordance with Article 3 of the SPS Agreement and the Decisions for the implementation of the said Article adopted by the WTO/SPS Committee, the Parties shall work on the harmonization of their respective sanitary and phytosanitary measures, taking into account standards, guidelines and recommendations developed by the relevant international organizations.
2. In case these international standards, guidelines and recommendations do not exist, their respective measures shall be based on science and guarantee that the appropriate level of sanitary or phytosanitary protection is achieved.
Article 85. Equivalence
1. Each Party shall accept the sanitary or phytosanitary measures of the other Party as equivalent, if the other Party objectively demonstrates to the Party that its measures achieve the Party’s appropriate level of sanitary and phytosanitary protection.
2. The Parties shall, if necessary, give positive consideration to establishing a procedure to expedite recognition on equivalence of their sanitary and phytosanitary measures, on the basis of the relevant procedures established by the relevant international organizations and the WTO/SPS Committee.
3. If the recognition of the equivalence is still pending, the Parties should neither stop nor apply sanitary and phytosanitary measures more restrictive than those in force in their mutual trade, except in the case of a sanitary or phytosanitary emergency.
Article 86. Risk Assessment and Determination of the Appropriate Level of Sanitary or Phytosanitary Protection
1. Sanitary and phytosanitary measures shall be based on a risk assessment, in line with the circumstances of the risks existing for human, animal and plant life and health, taking into account the risk assessment techniques developed by the relevant international organizations, so that the measures adopted may reach the appropriate level of protection.
2. When a Party decides to make a re-evaluation of a product for which there is a fluid and regular trade, said Party shall not interrupt bilateral trade of the affected products by reason of such decision to make the re-evaluation, except in the case of a sanitary or phytosanitary emergency.
Article 87. Recognition of Pest- or Disease- Free Areas and Areas of Low Pest or Disease Prevalence
1. The importing Party shall recognize in an expeditious way, upon request by the other Party and after the receipt of the necessary information provided by the exporting Party and an assessment by the importing Party, the pest- or disease-free areas and areas of low pest or disease prevalence recognized by the relevant international organizations.
2. In the absence of recognition of pest- or disease-free areas and areas of low pest or disease prevalence by the relevant international organizations, the importing Party shall decide, in a reasonable time, on the request made by the exporting Party for the recognition of pest- or disease-free areas and areas of low pest or disease prevalence. For this purpose, the exporting Party shall objectively demonstrate that an area or part of its territory is free of a pest or disease or has low pest or disease prevalence, and maintain this status, and the importing Party shall conduct an assessment.
3. In case of an event affecting the sanitary or phytosanitary status of a pest- or disease-free area or an area of low pest or disease prevalence, the Parties shall work in an expeditious way for regaining such status.
Article 88. Transparency
1. The Parties agree to designate Contact Points and/or Enquiry Points for information exchange and notification on sanitary and phytosanitary issues no later than 3 months following the entry into force of this Agreement.
2. Each Party shall notify electronically to the other Party’s Contact Point or Enquiry Point its proposed sanitary and phytosanitary measures notifications to the WTO, at the same time the Party submits to the WTO Secretariat in accordance with the SPS Agreement , with at least a 60-day-long comment period.
3. In cases of urgency or duly justified emergency, the Parties shall adopt similar action as specified in paragraph 2, without observing the timeframe established.
4. The Parties shall strengthen cooperation between SPS Contact Points and/or Enquiry Points of the Parties, including sharing available translated versions of SPS notifications and relevant information and exchanging experience and information on SPS notifications.
Article 89. Technical Cooperation
The Parties agree to cooperate in human, animal, plant health and food safety issues of common interest with a view to facilitating access to each other’s markets. In particular, the Parties shall consider the following activities, inter alia:
(a) encourage the enforcement of this Chapter; and
(b) strengthen the capacity of their corresponding SPS authorities.
Article 90. Committee on Sanitary and Phytosanitary Measures
1. The Parties establish a Committee on Sanitary and Phytosanitary Measures consisting of sanitary and phytosanitary authorities and/or trade authorities of the Parties.
2. The Committee shall meet every 2 years or whenever it considers necessary. The Committee shall meet in presence or through teleconference, videoconference, or any other means; and shall be able to deal with sanitary and phytosanitary issues through telecommunications or correspondence.
3. At its first regular meeting, the Committee shall adopt its rules of procedure and if necessary, shall develop a Working Plan, which could be updated with the issues of interest proposed by the Parties.
4. The functions of this Committee include:
(a) to monitor the implementation of this Chapter;
(b) to review progress on addressing sanitary and phytosanitary matters that may arise between the Parties’ competent sanitary and phytosanitary authorities, including each Party’s priority market access interests;
(c) to strengthen the communication on the Parties’ SPS-related administrative procedures to promote mutual understanding and compliance with the respective obligations under this Chapter;
(d) to strengthen technical cooperation in sanitary and phytosanitary issues and seek the enhancement of any present or future relationship between the Parties;
(e) to consult on issues, positions and agendas for meetings of the WTO/SPS Committee, Codex Alimentarius, the International Plant Protection Convention, the World Organization for Animal Health, and other international and regional fora on food safety and human, animal and plant health;
(f) to establish technical working groups if necessary. The technical working groups may consist of expert-level representatives of the Parties as agreed, which shall identify, address, and attempt to resolve technical and scientific issues arising from this Chapter;
(g) to hold technical discussions on sanitary and phytosanitary matters;and
(h) other functions mutually agreed by the Parties.
5. The Committee shall be coordinated by:
(a) for China, the Department of International Cooperation of the General Administration of Quality Supervision, Inspection and Quarantine, or its successor; and
(b) for Peru, the Vice Ministry of Foreign Trade of the Ministry of Foreign Trade and Tourism, or its successor.
Article 91. Technical Consultations and Dispute Settlement
1. When a Party considers that a sanitary or phytosanitary measure affecting trade between it and the other Party warrants technical consultations, it may request that technical consultations be held under the Committee on Sanitary and Phytosanitary Measures, with a view to sharing information and increasing mutual understanding about the specific sanitary and phytosanitary measure under consultation and to identify a workable and practical solution that would facilitate trade. The other Party shall respond as early as possible to any request for technical consultations.
2. The technical consultations shall be held, if possible, in a term of 45 days after the date of receipt of the request, unless the Parties agree otherwise, and may be conducted via teleconference, videoconference, or through any other means mutually agreed by the Parties.
3. Notwithstanding paragraphs 1 and 2, any Party may directly resort to the dispute settlement mechanism provided in Chapter 15 (Dispute Settlement).
Article 92. Competent Authorities
1. The competent authorities of the Parties are the authorities in the Parties responsible for the implementation of the measures referred to in this Chapter.
2. The Parties will communicate any significant change in the structure, organization and division of the competent authorities.