Title
AGREEMENT BETWEEN JAPAN AND BRUNEI DARUSSALAM FOR AN ECONOMIC PARTNERSHIP
Preamble
Japan and Brunei Darussalam,
Inspired by the warm friendship and strong economic and political ties, which have developed through mutually beneficial cooperation and shared regional interests;
Determined to enhance their relationship by forging mutually beneficial economic partnership through liberalisation and facilitation of trade and investment, and cooperation;
Recognising that a dynamic and rapidly changing global environment brought about by globalisation and technological progress presents various economic and strategic challenges and opportunities to the Parties;
Reaffirming that the economic partnership will provide a useful framework for enhanced cooperation and serve the common interests of the Parties in various fields as agreed in this Agreement and lead to the improvement of economic efficiency and the development of trade, investment and human resources;
Recognising that the economic partnership would create larger and new market, and enhance the attractiveness and vibrancy of their markets;
Recognising that economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development and that the economic partnership can play an important role in promoting sustainable development;
Recalling Article XXIV of the General Agreement on Tariffs and Trade 1994 and Article V of the General Agreement on Trade in Services in Annex 1A and Annex 1B, respectively, to the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh, April 15, 1994;
Convinced that this Agreement would open a new era for the relationship between the Parties; and
Determined to establish a legal framework for an economic partnership between the Parties;
HAVE AGREED as follows:
Body
Chapter 1. General Provisions
Article 1. Objectives
The objectives of this Agreement are to:
(a) liberalise and facilitate trade in goods and services between the Parties;
(b) increase investment opportunities and strengthen protection for investments and investment activities in the Parties;
(c) establish a framework for further bilateral cooperation and improvement of business environment; and
(d) create effective procedures for the implementation and application of this Agreement and for the resolution of disputes.
Article 2. General Definitions
For the purposes of this Agreement:
(a) "Area" means:
(i) with respect to Brunei Darussalam, the territory of Brunei Darussalam including its territorial sea, extending to the airspace above such territory, over which it exercises sovereignty, and the maritime area beyond its territorial sea, including sea-â bed and subsoil, which has been or may hereafter be designated under the laws of Brunei Darussalam, over which it exercises its sovereign rights and jurisdiction in accordance with international law; and
(ii) with respect to Japan, the territory of Japan, and all the area beyond its territorial sea, including the sea-bed and subsoil thereof, over which Japan exercises sovereign rights or jurisdiction in accordance with international law and the laws and regulations of Japan;
Note: Nothing in this subparagraph shall affect the rights and obligations of the Parties under international law, including those under the United Nations Convention on the Law of the Sea, done at Montego Bay, December 10, 1982.
(b) "customs authority" means the authority that, according to the legislation of each Party or non-Parties, is responsible for the administration and enforcement of customs laws and regulations. In the case of Japan, the Ministry of Finance, and in the case of Brunei Darussalam, the Royal Customs and Excise Department;
(c) "GATS" means the General Agreement on Trade in Services in Annex 1B to the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh, April 15, 1994, as may be amended;
(d) "GATT 1994" means the General Agreement on Tariffs and Trade 1994 in Annex 1A to the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh, April 15, 1994, as may be amended. For the purposes of this Agreement, references to articles in the GATT 1994 include the interpretative notes;
(e) "Harmonized System" or "HS" means the Harmonized Commodity Description and Coding System set out in the Annex to the International Convention on the Harmonized Commodity Description and Coding System, as may be amended, and adopted and implemented by the Parties in their respective laws;
(f) "Parties" means Japan and Brunei Darussalam and "Party" means either Japan or Brunei Darussalam; and
(g) "WTO Agreement" means the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh, April 15, 1994, as may be amended.
Article 3. Transparency
1. Each Party shall make publicly available its laws, regulations and judicial decisions of general application as well as international agreements to which the Party is a party, that pertain to, or affect any matter covered by this Agreement.
2. Each Party shall make easily available to the public, the names and addresses of the competent authorities responsible for laws and regulations referred to in paragraph 1.
3. Each Party shall, upon the request by the other Party, within a reasonable period of time, respond to specific questions from, and provide information to, the other Party in the English language with respect to matters referred to in paragraph 1.
Article 4. Administrative Procedures
1. Where administrative decisions which pertain to or affect the implementation and operation of this Agreement are taken by the competent authorities of the Government of a Party, the competent authorities shall, in accordance with the applicable laws and regulations of the Party:
(a) inform the applicant of the decision within a reasonable period of time after the submission of the application considered complete under the laws and regulations of the Party, taking into account the established standard period of time referred to in paragraph 3; and
(bob) provide, within a reasonable period of time, information concerning the status of the application, at the request of the applicant.
2. The competent authorities of the Government of a Party shall, in accordance with the applicable laws and regulations of the Party, establish standards for taking administrative decisions in response to submitted applications. The competent authorities shall:
(a) make such standards as specific as possible; and
(bob) make such standards publicly available except when it would extraordinarily raise administrative difficulties for the Government of the Party.
3. The competent authorities of the Government of a Party shall, in accordance with the applicable laws and regulations of the Party, endeavour to:
(a) establish standard periods of time between the receipt of applications by the competent authorities and the administrative decisions taken in response to submitted applications; and
(b) make publicly available such periods of time, if established.
4, The competent authorities of the Government of a Party shall, in accordance with the applicable laws and regulations of the Party, prior to any final decision which adversely affects the interests of a person, provide that person with:
(a) a reasonable notice, including a description of the nature of the measure, specific provisions upon which such measure will be based, and the facts which may be a cause of taking such measure; and
(b) a reasonable opportunity to present facts and arguments in support of position of such person,
provided that time, nature of the measure and public interest permit.
Article 5. Review and Appeal
1. Each Party shall maintain judicial or administrative tribunals or procedures for the purpose of prompt review and, where justified, appropriate remedies for actions taken by its Government regarding matters covered by this Agreement. Such tribunals or procedures shall be impartial.
2. Each Party shall ensure that the parties in any such tribunals or procedures are provided with the right to:
(a) a reasonable opportunity to support or defend their respective positions; and
(b) a decision based on the evidence and submissions of record.
3. Each Party shall ensure, subject to appeal or further review as provided for in its applicable laws and regulations, that such decision is implemented by the relevant authorities with respect to the action at issue which is taken by its Government.
Article 6. Confidential Information
1. Each Party shall, in accordance with its laws and regulations, maintain the confidentiality of information provided in confidence by the other Party pursuant to this Agreement. Such information shall be used only for the purposes specified, and shall not be otherwise disclosed without the specific permission of the Party providing the information.
2. Nothing in this Agreement shall be construed to require a Party to provide confidential information, the disclosure of which would:
(a) be contrary to the public interest;
(b) impede enforcement of its laws and regulations; or
(c) prejudice legitimate commercial interests of particular enterprises, public or private.
3. In the event of the termination of this Agreement, the Parties agree that the provision of this Article shall continue to apply.
Article 7. Taxation
1. Unless otherwise provided for in this Agreement, the provisions of this Agreement shall not apply to any taxation measures.
2. Articles 3 and 6 shall apply to taxation measures, to the extent that the provisions of this Agreement are applicable to such taxation measures.
Article 8. General and Security Exceptions
1. For the purposes of Chapters 2,3,4,5 other than Article 64, and 7, Article XX of the GATT 1994 is incorporated into and forms part of this Agreement, mutatis mutandis.
2. For the purposes of Chapter 5 other than Article 64, and Chapter 6, Article XIV of the GATS is incorporated into and forms part of this Agreement, mutatis mutandis.
3. Nothing in this Agreement other than Article 64, 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 the production or supply of, or traffic in, arms, ammunition and implements of war and to such production or supply of, or traffic in, other goods and materials, or such supply of services, as is carried on directly or indirectly for the purpose of supplying or provisioning a military establishment;
(ii) taken in time of war, or armed conflict, or other domestic or international emergency; or
(iii) relating to fissionable and fusionable materials or the materials from which they are derived; 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.
4. In cases where a Party takes any measure or action pursuant to this Article, the Party shall make reasonable effort to notify the other Party of the description of such measure or action either before the measure or action is taken or as soon as possible thereafter.
Article 9. Relation to other Agreements
1. The Parties reaffirm their rights and obligations under the WTO Agreement or any other agreements to which both Parties are parties.
2. In the event of any inconsistency between this Agreement and the WTO Agreement or any other agreements to which both Parties are parties, the Parties shall immediately consult with each other with a view to finding a mutually satisfactory solution, taking into consideration general principles of international law.
Article 10. Implementing Agreement
The Governments of the Parties shall conclude a separate agreement setting forth the details and procedures for the implementation of this Agreement (hereinafter referred to in this Agreement as âthe Implementing Agreementâ).
Article 11. Joint Committee
1. A Joint Committee shall be established under this Agreement. 2. The functions of the Joint Committee shall be:
(a) reviewing and monitoring the implementation and operation of this Agreement;
(b) considering and recommending to the Parties any amendments to this Agreement;
(c) supervising and coordinating the work of all Sub- Committees established under this Agreement;
(d) adopting:
(i) Operational Procedures referred to in Chapter 3; and
(ii) any necessary decisions; and
(e) carrying out other functions as the Parties may agree.
3. The Joint Committee:
(a) shall be composed of representatives of the Parties; and
(b) may establish and delegate its responsibilities to Sub-Committees.
4, The Joint Committee shall meet at such venues and times as may be agreed by the Parties.
Article 12. Communications
Each Party shall designate an enquiry point to facilitate communications between the Parties on any matter relating to this Agreement.
Chapter 2. Trade In Goods
Article 13. Definitions
For the purposes of this Chapter:
(a) "bilateral safeguard measure" means a bilateral safeguard measure provided for in paragraph 2 of Article 21;
(b) "customs duty" means any customs or import duty and a charge of any kind, including any form of surtax or surcharge, imposed in connection with the importation of a good, but does not include any:
(i) charge equivalent to an internal tax imposed consistently with the provisions of paragraph 2 of Article III of the GATT 1994, in respect of the like goods or, directly competitive or substitutable goods of the Party or in respect of goods from which the imported goods have been manufactured or produced in whole or in part;
(ii) anti-dumping or countervailing duty applied pursuant to a Partyâs law and applied consistently with the provisions of Article VI of the GATT 1994, the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, as may be amended, and the Agreement on Subsidies and Countervailing Measures in Annex 1A to the WIO Agreement, as may be amended; or
(iii) fees or other charges commensurate with the cost of services rendered;
(c) "customs value of goods" means the value of goods for the purposes of levying ad valorem customs duties on imported goods;
(d) "domestic industry" means the producers as a whole of the like or directly competitive goods operating in a Party, or those whose collective output of the like or directly competitive goods constitutes a major proportion of the total domestic production of those goods;
(e) "export subsidies" means export subsidies listed in subparagraphs l(a), (b), (c), (d), (e) and (f) of Article 9 of the Agreement on Agriculture in Annex 1A to the WTO Agreement, as may be amended (hereinafter referred to in this Chapter as "the Agreement on Agriculture");
(f) "originating good" means a good which qualifies as an originating good under the provisions of Chapter 3;
(g) "provisional bilateral safeguard measure" means a provisional bilateral safeguard measure provided for in subparagraph 9(a) of Article 21;
(h) "serious injury" means a significant overall impairment in the position of a domestic industry; and
(i) "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.
Article 14. Classification of Goods
The classification of goods in trade between the Parties shall be in conformity with the Harmonized System.
Article 15. National Treatment
Each Party shall accord national treatment to the goods of the other Party in accordance with Article III of the GATT 1994 which, to this end, is incorporated into and forms part of this Agreement, mutatis mutandis.
Article 16. Elimination of Customs Duties
1. Except as otherwise provided for in this Agreement, each Party shall eliminate its customs duties on originating goods of the other Party in accordance with its Schedule in Annex 1.
2. Except as otherwise provided for in this Agreement, neither Party shall increase any customs duty on originating goods of the other Party from the rate to be applied in accordance with its Schedule in Annex 1.
3. Upon the request of either Party, the Parties shall negotiate on issues such as improving market access conditions on originating goods designated for negotiation in the Schedules in Annex 1, in accordance with the terms and conditions set out in such Schedules.
4. If, as a result of the elimination or reduction of its most-favoured-nation applied rate of customs duty on a particular good, the mostâfavoured-nation applied rate becomes equal to, or lower than, the rate of customs duty to be applied in accordance with paragraph 1 on the originating good which is classified under the same tariff line as that particular good, each Party shall notify the other Party of such elimination or reduction without delay.
5. In cases where its most-favoured-nation applied rate of customs duty on a particular good is lower than the rate of customs duty to be applied in accordance with paragraph 1 on the originating good which is classified under the same tariff line as that particular good, each Party shall apply the lower rate with respect to that originating good.
Article 17. Customs Valuation
For the purposes of determining the customs value of goods traded between the Parties, provisions of Part I of the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 in Annex 1A to the WIO Agreement, as may be amended (hereinafter referred to in this Agreement as âthe Agreement on Customs Valuationâ), shall apply mutatis mutandis.
Article 18. Export Duties
Neither Party shall introduce any export duties on goods exported from the Party to the other Party.
Article 19. Export Subsidies
Neither Party shall introduce any export subsidies on any agricultural good which is listed in Annex 1 to the Agreement on Agriculture.
Article 20. Non-tariff Measures
1. Each Party shall not introduce or maintain any non- tariff measures on the importation of any good of the other Party or on the exportation or sale for export of any good destined for the other Party which are inconsistent with its obligations under the WTO Agreement.
2. Each Party shall promote the transparency of its non-â tariff measures which are not inconsistent with its obligations under the WTO Agreement.
Article 21. Bilateral Safeguard Measures
1. Subject to the provisions of this Article, each Party may take a bilateral safeguard measure, to the minimum extent necessary to prevent or remedy the serious injury to a domestic industry of that Party and to facilitate adjustment, if an originating good of the other Party, as a result of the elimination or reduction of a customs duty in accordance with Article 16, is being imported into the former Party in such increased quantities, in absolute terms, and under such conditions that the imports of that originating good constitute a substantial cause of serious injury, or threat of serious injury, to a domestic industry of the former Party.
2. A Party may, as a bilateral safeguard measure:
(a) suspend the further reduction of any rate of customs duty on the originating good provided for in this Chapter; or
(b) increase the rate of customs duty on the originating good to a level not to exceed the lesser of:
(i) the most-favoured-nation applied rate of customs duty in effect at the time when the bilateral safeguard measure is taken; and
(ii) the most-favoured-nation applied rate of customs duty in effect on the day immediately preceding the date of entry into force of this Agreement.
3. (a) A Party may take a bilateral safeguard measure only after an investigation has been carried out by the competent authorities of that Party in accordance with the same procedures as those provided for in Article 3 and subparagraph 2(c) of Article 4 of the Agreement on Safeguards in Annex 1A to the WTO Agreement, as may be amended (hereinafter referred to in this Article as âthe Agreement on Safeguardsâ).
(b) The investigation referred to in subparagraph (a) shall in all cases be completed within one year following its date of initiation.
(c) In the investigation referred to in subparagraph (a) to determine whether increased imports of an originating good have caused or are threatening to cause serious injury to a domestic industry under the terms of this Article, the competent authorities of a Party who carry out the investigation shall evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation of that domestic industry, in particular, the rate and amount of the increase in imports of the originating good in absolute terms, the share of the domestic market taken by the increased imports of the originating good, and the changes in the level of sales, production, productivity, capacity utilisation, profits and losses, and employment.
The determination that increased imports of an originating good have caused or are threatening to cause serious injury to a domestic industry shall not be made unless the investigation referred to in subparagraph (a) demonstrates, on the basis of objective evidence, the existence of the causal link between increased imports of the originating good and serious injury or threat of serious injury. When factors other than the increased imports of the originating good are causing injury to the domestic industry at the same time, such injury shall not be attributed to the increased imports of the originating good.
4, The following conditions and limitations shall apply with regard to a bilateral safeguard measure:
(a) A Party shall immediately deliver a written notice to the other Party upon:
(d) The determination that increased imports of an originating good have caused or are threatening to cause serious injury to a domestic industry shall not be made unless the investigation referred to in subparagraph (a) demonstrates, on the basis of objective evidence, the existence of the causal link between increased imports of the originating good and serious injury or threat of serious injury. When factors other than the increased imports of the originating good are causing injury to the domestic industry at the same time, such injury shall not be attributed to the increased imports of the originating good.
4. The following conditions and limitations shall apply with regard to a bilateral safeguard measure:
(a) A Party shall immediately deliver a written notice to the other Party upon: