Title
NEW ZEALAND – HONG KONG, CHINA CLOSER ECONOMIC PARTNERSHIP AGREEMENT
Preamble
The Governments of New Zealand and the Hong Kong Special Administrative Region of the People's Republic of China ("Hong Kong, China"), hereinafter referred to collectively as "the Parties":
Conscious of their longstanding friendship and growing economic, trade and investment relationship; Believing that open, transparent and competitive markets are the key drivers of economic efficiency, innovation, wealth creation and consumer welfare;
Considering that electronic commerce, information technologies and knowledge-based industries are supporting the rapid integration of global economic activity and development and expansion of their economies;
Recognising the importance of ongoing liberalisation of trade in goods and services at the multilateral level; Aware of the growing importance of trade and investment for the economies of the Asia-Pacific region; Confirming their rights, obligations and undertakings under the WTO Agreement and other multilateral, regional and bilateral agreements and arrangements;
Confirming their support for the efforts of all APEC economies to meet the APEC goal of free and open trade and investment;
Recognising their commitment to securing trade liberalisation, the removal of barriers to trade in goods and services and investment flows and an outward-looking approach to trade and investment;
Mindful that trade remedies should not be used in an arbitrary or protectionist manner and should be carried out in accordance with the principle of fairness and accepted WTO standard practice;
Confirming their shared commitment to trade facilitation through removing or reducing, inter alia, technical, sanitary and phytosanitary barriers to, and reducing costs of, the movement of goods between Hong Kong, China and New Zealand;
Desiring to promote regulatory cooperation and to encourage greater international alignment of standards and regulations;
Recognising their right to regulate, and to introduce new regulations on the supply of services and investment in order to meet government policy objectives;
Mindful that fostering innovation and the promotion and protection of intellectual property rights will encourage further trade, investment and cooperation between the Parties;
Conscious that a clearly established and transparent framework of rules for trade in goods and services and for investment will provide confidence and certainty to their businesses to take investment and planning decisions, lead to a more effective use of resources and increase capacity to contribute to economic development and prosperity through international exchanges and the promotion of closer links with other economies, especially in the APEC region;
Mindful that economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development and that closer economic partnership can play an important role in promoting sustainable development;
Considering the benefits of enhancing communication and cooperation on labour and environmental matters of mutual interest through bilateral agreements between them;
Recognising the need for good corporate governance and a predictable, transparent and consistent business environment, so that businesses can conduct transactions freely, use resources efficiently and obtain rewards for innovation;
Recognising that liberalised trade in goods and services and strengthening their economic partnership will assist the expansion of trade and investment flows, raise the living standards of their people and create new employment opportunities and improved conditions in their respective economies;
Have agreed as follows:
Body
Chapter 1. Initial Provisions
Article 1. Establishment of the Free Trade Area
The Parties to this Agreement, consistent with Article XXIV of GATT 1994 and Article V of GATS, hereby establish a free trade area.
Article 2. Objectives
The objectives of this Agreement, as elaborated more specifically through its principles and rules, are to:
(a) strengthen the Parties' bilateral relationship through the establishment of a mutually beneficial closer economic partnership;
(b) liberalise, facilitate and expand bilateral trade in goods and services, including through the removal of trade barriers and the disciplined use of trade remedy measures;
(c) ensure a liberal, open bilateral environment to expand investment;
(d) promote conditions for an open and competitive market in the free trade area for the purposes of enhancing trade and investment;
(e) ensure measures affecting trade and investment between the two economies are transparent, fair and equitable;
(f) promote effective protection and enforcement of intellectual property rights in each Party's Area;
(g) provide an effective mechanism to prevent and resolve trade disputes;
(h) support the wider liberalisation process in APEC and in particular the efforts of all APEC economies to meet the APEC goal of free and open trade and investment; and
(i) support the WTO in its efforts to create a predictable, freer and more open global trading environment.
Chapter 2. General Definitions and Interpretations
Article 1. Definitions of General Application
For the purposes of this Agreement, unless otherwise specified:
(a) Agreement means the New Zealand -Hong Kong, China Closer Economic Partnership Agreement;
(b) APEC means Asia-Pacific Economic Cooperation;
(c) Area in respect of:
(i) New Zealand means the territory of New Zealand and the exclusive economic zone, seabed and subsoil over which it exercises sovereign rights with respect to natural resources in accordance with international law, but does not include Tokelau; and
(ii) Hong Kong, China means the Hong Kong Special Administrative Region of the People's Republic of China, together with the Shenzhen Bay Port Hong Kong Port Area;
(d) customs duty includes any duty or charges of any kind imposed in connection with the importation of a good, and any surtaxes or surcharges imposed in connection with such importation, but does not include:
(i) charges equivalent to an internal tax imposed consistently with GATT 1994, including excise duties and goods and services tax;
(ii) any anti-dumping or countervailing duty applied consistently with Article VI of GATT 1994, the WTO Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, and the WTO Agreement on Subsidies and Countervailing Measures; and
(iii) fees or other charges that:
(1) are limited in amount to the approximate cost of services rendered; and
(2) do not represent a direct or indirect protection for domestic goods or a taxation of imports for fiscal purposes;
(e) Customs Valuation Agreement means the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994, which is part of the WTO Agreement;
(f) days means calendar days;
(g) GATS means the General Agreement on Trade in Services, which is part of the WTO Agreement;
(h) GATT 1994 means the General Agreement on Tariffs and Trade 1994, which is part of the WTO Agreement;
(i) Harmonized System, HS Code, or HS means the Harmonized Commodity Description and Coding System established by the International Convention on the Harmonized Commodity Description and Coding System, signed at Brussels on 14 June 1983, as amended;
(j) Joint Commission means the Joint Commission established under Article 1 (Establishment of the Joint Commission) of Chapter 17 (Administrative and Institutional Provisions);
(k) measure includes any law, regulation, procedure, requirement or practice;
(l) WTO means the World Trade Organization;
(m) WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done on 15 April 1994; and
(n) WTO Dispute Settlement Understanding means the Understanding on Rules and Procedures Governing the Settlement of Disputes, which is part of the WTO Agreement.
Article 2. Interpretations
In this Agreement, unless the context otherwise requires:
(a) in the case of Hong Kong, China;
(i) where an expression is qualified by the term "national", such expression shall be interpreted as pertaining to Hong Kong, China; and
(ii) the term "international agreement" shall include an agreement or arrangement entered into by Hong Kong, China with other parts of the People's Republic of China. For the purposes of Chapter 13 (Trade in Services), Hong Kong, China shall ensure that such agreements or arrangements which are referred to in Paragraph 4 of Article 12 (Most Favoured Nation Treatment) are published or otherwise made available through the internet or in print form to New Zealand promptly after these agreements or arrangements have come into force or effect; and
(b) where anything under this Agreement is to be done within a number of days after, before or of a specified date or event, the specified date or the date on which the specified event occurs shall not be included in calculating that number of days.
Chapter 3. Trade In Goods
Article 1. Scope
Except as otherwise provided, this Chapter shall apply to trade in all goods between the Parties.
Article 2. National Treatment
Each Party shall accord national treatment to the goods of the other Party in accordance with Article III of GATT 1994. To this end, Article III of GATT 1994 is incorporated into and made part of this Agreement, mutatis mutandis.
Article 3. Elimination of Customs Duties
1. Except as otherwise provided in this Agreement, neither Party may increase any existing customs duty, or adopt any new customs duty, on an originating good of the other Party.
2. Except as otherwise provided in this Agreement, and subject to each Party's Tariff Schedule in Annex I, as at the date of entry into force of this Agreement each Party shall eliminate its customs duties on originating goods of the other Party.
Article 4. Fees and Charges Connected with Importation and Exportation
1. The Parties agree that fees, charges, formalities and requirements imposed in connection with the importation and exportation of goods shall be consistent with their obligations under GATT 1994.
2. Each Party shall make available through the internet or a comparable computer-based telecommunications network details of the fees and charges it imposes in connection with importation and exportation.
3. Neither Party may require that any documentation supplied in connection with the importation of any good of the other Party be endorsed, certified or otherwise sighted or approved by the importing Party's overseas representatives, or persons or entities with authority to act on the importing Party's behalf, nor impose any related fees or charges.
Article 5. Non-tariff Measures
1. Neither Party shall adopt or maintain any non-tariff measures on the importation of any good of the other Party or on the exportation of any good destined for the Area of the other Party except in accordance with its WTO rights and obligations or in accordance with other provisions of this Agreement.
2. Each Party shall ensure its non-tariff measures permitted in Paragraph 1 are not prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to trade between the Parties.
Article 6. Consumer Protection
1. The Parties affirm their commitment to provide protection in their Areas from deceptive practices or the use of false or misleading descriptions in trade.
2. Each Party shall provide the legal means for its authorities and, to the extent permitted by its domestic law, interested parties to prevent the sale of products within the Party's Area which are labelled in a manner which is false, deceptive or misleading or is likely to create an erroneous impression about the character, composition, quality or origin, including country of origin, of the product. In addition, each Party shall provide the legal means for its authorities, to the extent permitted by its domestic law, and its interested parties to claim compensation for any loss suffered from such sale.
Article 7. Committee on Trade In Goods
1. The Parties hereby establish a Committee on Trade in Goods ("the Committee"), comprising representatives of each Party.
2. The Committee shall meet at the request of either Party or the Joint Commission to consider any matter arising under this Chapter, Chapter 4 (Rules of Origin), Chapter 5 (Customs Procedures and Cooperation), or Chapter 6 (Trade Remedies). Meetings of the Committee may be conducted in person or via teleconference, video-conference or any other means mutually determined by the Parties.
3. The Committee's functions shall include:
(a) reviewing implementation of the Chapters referred to in Paragraph 2;
(b) addressing barriers to trade in goods between the Parties, especially those related to the application of non-tariff measures other than measures covered under Chapters 7 (Sanitary and Phytosanitary Measures) and 8 (Technical Barriers to Trade); and
(c) referring matters considered by the Committee to the Joint Commission where the Committee considers this appropriate.
Article 8. Contact Points and Consultations
1. Each Party shall designate one or more contact points to facilitate communication between the Parties on any matter relating to this Chapter. The Parties shall notify each other promptly of any amendments to the details of their contact points.
2. Where either Party considers that any actual or proposed measure of the other Party may materially affect trade in goods between the Parties, that Party may through the contact point of the other Party request detailed information relating to that measure and, if necessary, request consultations with a view to resolving any concerns about the measure.
3. The requested Party shall respond promptly to any such request for information.
4. Any consultations requested under Paragraph 2 shall be conducted through the relevant contact points and shall take place within 30 days of the receipt of the request, unless the Parties mutually determine otherwise.
5. Any action taken pursuant to this Article shall be without prejudice to the rights and obligations of the Parties under Chapter 16 (Dispute Settlement) or under the WTO Dispute Settlement Understanding.
Chapter 4. Rules of Origin
Article 1. Definitions
For the purposes of this Chapter:
(a) aquaculture means the farming of aquatic organisms, including fish, molluscs, crustaceans, crocodiles, alligators, turtles, amphibians, other aquatic invertebrates and aquatic plants from seedstock such as eggs, fry, fingerlings and larvae, by intervention in the rearing or growth processes to enhance production such as regular stocking, feeding or protection from predators;
(b) CIF or CIF value means the value of the good imported inclusive of the cost of insurance and freight up to the port or place of entry in the importing Party;
(c) FOB or FOB value means the value of the good free on board inclusive of the cost of transport to the port or site of final shipment abroad;
(d) generally accepted accounting principles means the accounting standards of a Party with respect to:
(i) the recording of revenues, expenses, costs, assets and liabilities;
(ii) the disclosure of information; and
(iii) the preparation of financial statements. These standards may encompass broad guidelines of general application as well as detailed standards, practices and procedures;
(e) good means any merchandise, product, article or material;
(f) material means any matter or substance used or consumed in the production or transformation of a good or physically incorporated into a good subjected to a process in the production of another good;
(g) non-originating good or non-originating material means a good or material which does not qualify as originating under this Chapter;
(h) originating good or originating material means a good or material which qualifies as originating in accordance with Article 2;
(i) producer means a person who grows, cultivates, mines, raises, harvests, fishes, traps, hunts, farms, captures, gathers, collects, breeds, extracts, manufactures, processes or assembles a good; and
(j) production means methods of obtaining goods, including growing, cultivating, mining, harvesting, raising, breeding, extracting, gathering, collecting, capturing, fishing, farming, trapping, hunting, manufacturing, processing or assembling a good.
Article 2. Originating Goods
For the purposes of this Chapter, a good shall qualify as an originating good if it:
(a) is wholly obtained or produced in the Area of a Party as provided for in Article 4;
(b) is produced entirely in the Area of one or both Parties exclusively from originating materials from one or both Parties; or
(c) is produced in the Area of one or both Parties using non-originating materials that conform to a change in tariff classification requirement, a regional value content requirement (as provided for in Article 5) or other requirements as specified in Annex I; and the good meets the other applicable provisions of this Chapter.
Article 3. Preferential Tariff Treatment
Preferential tariff treatment provided for in this Agreement shall be applied to goods that qualify as originating goods in accordance with Article 2.
Article 4. Wholly Obtained or Produced Goods
For the purposes of subparagraph (a) of Article 2, the following goods shall be considered as wholly obtained or produced:
(a) plant and plant goods, including fruit, flowers, vegetables, trees, seaweed, fungi and live plants, grown, harvested, picked or gathered in the Area of a Party;
(b) live animals born and raised in the Area of a Party;
(c) goods obtained from live animals in the Area of a Party;
(d) goods obtained from hunting, trapping, fishing, farming, aquaculture, gathering or capturing in the Area of a Party;
(e) minerals and other naturally occurring substances extracted or taken from the soil, waters, seabed or subsoil, in the Area of a Party;
(f) goods of sea-fishing and other marine goods taken from the high seas, in accordance with international law, by any vessel registered in a Party and entitled to fly the flag of that Party in accordance with the United Nations Convention on the Law of the Sea 1982 ("UNCLOS");
(g) goods processed and/or produced on board any factory ship registered in a Party and entitled to fly the flag of that Party in accordance with UNCLOS, from the goods referred to in subparagraph (f);
(h) goods extracted or taken by a Party, or a person of a Party, from the seabed or subsoil beyond the Exclusive Economic Zone and adjacent Continental Shelf of that Party and beyond areas over which third parties exercise jurisdiction, under exploitation rights granted in accordance with international law;
(i) goods which are:
(i) waste and scrap derived from production or consumption in the Area of a Party provided that such goods are fit only for the recovery of raw materials; or
(ii) used goods collected in the Area of a Party provided that such goods are fit only for the recovery of raw materials; and
(j) goods obtained or produced in the Area of a Party solely from products referred to in subparagraphs (a) to (i) or from their derivatives.
Article 5. Regional Value Content
For the purposes of this Chapter, the formula for calculating the regional value content ("RVC") shall be either:
(a) build-up formula RVC = [(material cost + labour cost + overhead cost + profit + other costs)/FOB] x 100 % or
(b) build-down formula RVC = [(FOB - value of non-originating materials) /FOB] x 100 % where: (i) material cost is the value of originating materials, parts or produce that are acquired or self-produced by the producer in the production of the good;
(ii) labour cost includes wages, remuneration and other employee benefits;
(iii) overhead cost is the total overhead expense including product development and other production costs; (iv) other costs are the costs incurred in placing the good in the ship or other means of transport for export, including domestic transport costs, storage and warehousing, port handling, brokerage fees and service charges;
(v) FOB is the free-on-board value of the goods as defined in Article 1; and
(vi) value of non-originating materials is the CIF value at the time of importation or the earliest ascertained price paid or payable in the Area of the Party where the production takes place for all non-originating materials, parts or produce that are acquired by the producer in the production of the good.
When the producer of a good acquires non-originating materials within that Party the value of such materials shall not include freight, insurance, packing costs and any other costs incurred in transporting the material from the supplier's warehouse to the producer's location. Non-originating materials include materials of undetermined origin but do not include a material that is self-produced.
Article 6. Accumulation
Originating materials from the Area of a Party, incorporated into a good in the Area of the other Party, shall be considered to originate in the Area of the other Party.
Article 7. Minimal Operations and Processes
1. Operations or processes undertaken by themselves or in combination with each other for purposes such as those listed below are considered to be minimal and shall not confer origin:
(a) ensuring preservation in good condition for the purposes of transport or storage;
(b) facilitating shipment or transportation;
(c) packaging or presenting goods for sale;
(d) affixing of marks, labels or other like distinguishing signs on products or their packaging;
(e) simple processes consisting of sifting, classifying, washing, cutting, slitting, bending, coiling and uncoiling and other similar operations; and
(f) mere dilution with water or another substance that does not materially alter the characteristics of the goods.
2. Where a RVC approach has been applied, minimal processes and operations referred to in Paragraph 1 shall be taken into account for the RVC calculation.
Article 8. De Minimis
Each Party shall provide that a good that does not undergo a change in tariff classification pursuant to Annex I is nonetheless an originating good if:
(a) the value of all non-originating materials, including materials of undetermined origin, used or consumed in the production of the good that do not undergo the required change in tariff classification does not exceed ten percent of the FOB value of the good; and
(b) the good meets all other applicable requirements of this Chapter.
Article 9. Direct Consignment
A good shall retain its originating status as determined under Article 2 if the following conditions have been met:
(a) the good has been transported to the importing Party without passing through the territory of any non-Party; or
(b) the good has transited through one or more non-Parties, with or without transhipment or temporary storage of up to six months in those non-Parties, provided that:
(i) the good has not entered trade or commerce there; and
(ii) the good has not undergone any operation there other than unloading and reloading, repacking, or any operation required to preserve it in good condition or to transport it to the importing Party.
Article 10. Treatment of Packing Materials and Containers
1. Packing materials and containers for transportation and shipment of a good shall not be taken into account in determining the origin of any good.
2. Packing materials and containers in which a good is packaged for retail sale, when classified together with that good, shall not be taken into account in determining whether all of the non-originating materials used in the production of the good have met the applicable change in tariff classification requirements for the good. 3. If a good is subject to a regional value content requirement, the value of the packing materials and containers in which the good is packaged for retail sale shall be taken into account as originating or non-originating materials, as the case may be, in calculating the regional value content of the good.
Article 11. Accessories, Spare Parts, Tools and Instructional or Information Material
1. For the purpose of determining the origin of a good, accessories, spare parts, tools and instructional or other information materials presented with the good shall be considered part of that good and shall be disregarded in determining whether all the non-originating materials used in the production of the originating good have undergone the applicable change in tariff classification, provided that:
(a) the accessories, spare parts, tools and instructional or other information materials presented with the good are not invoiced separately from the originating good; and
(b) the quantities and value of the accessories, spare parts, tools and instructional or other information materials presented with the good are customary for that good.
2. Notwithstanding Paragraph 1, if a good is subject to a regional value content requirement, the value of the accessories, spare parts, tools and instructional or other information materials presented with the good shall be taken into account as originating or non-originating materials, as the case may be, in calculating the regional value content of the good.
3. Paragraph 2 shall not apply where accessories, spare parts, tools and instructional or other information materials presented with the good have been added solely for the purpose of artificially raising the regional value content of that good.
Article 12. Indirect Materials
1. An indirect material shall be treated as an originating material without regard to where it is produced and its value shall be the cost registered in the accounting records of the producer of the good.
2. For the purposes of this Article, indirect material means a good used or consumed in the production, testing or inspection of a good but not physically incorporated into the good, or a good used or consumed in the maintenance of buildings or the operation of equipment associated with the production of a good, including:
(a) fuel and energy;
(b) tools, dies and moulds;
(c) spare parts and materials used in the maintenance of equipment and buildings;
(d) lubricants, greases, compounding materials, and other materials used in production or used to operate equipment and buildings;
(e) gloves, glasses, footwear, clothing, safety equipment and supplies;
(f) equipment, devices, and supplies used for testing or inspecting the goods;
(g) catalysts and solvents; and
(h) any other goods that are not incorporated into the good but whose use in the production of the good can reasonably be demonstrated to be a part of that production.
Article 13. Identical and Interchangeable Materials
1. In determining whether a good is an originating good, any identical or interchangeable materials shall be distinguished by:
(a) physical separation of the goods; or
(b) an inventory management method recognised in the generally accepted accounting principles of the exporting Party.
2. Identical or interchangeable materials are goods or materials which are interchangeable for commercial purposes, whose properties are essentially identical, and between which it is impractical to differentiate by a mere visual examination.
Article 14. Compliance
Compliance with the requirements of this Section shall be determined in accordance with the provisions of Section B as applicable.
Article 15. Definitions
For the purposes of this Section:
(a) certificate of origin means a certificate issued by the Trade and Industry Department of Hong Kong, China or by a Government Approved Certification Organisation of Hong Kong, China which certifies that the goods to which the certificate relates are originating goods in accordance with this Chapter; and
(b) declaration of origin means an appropriate statement as to the origin of the goods made, in connection with their exportation, by the manufacturer, producer, supplier, exporter or other competent person on the commercial invoice or any other document relating to the goods.
Article 16. Treatment of Goods for Which Preference Is Claimed
1. Each Party may require a declaration of origin of a good for which preferential tariff treatment is claimed. Where a Party requires a declaration of origin of a good, the importing Party shall grant preferential tariff treatment to goods imported into its Area from the other Party only in cases where an importer claiming preferential tariff treatment:
(a) provides a declaration of origin of the good in accordance with this Chapter; or
(b) provides other evidence to substantiate the origin of the goods.
2. With respect to any good falling within Chapter 61 or Chapter 62 of the Harmonized System, New Zealand shall require that a certificate of origin of a good be obtained by the importer for goods imported from the Area of Hong Kong, China where preferential tariff treatment is claimed.
Article 17. Declaration of Origin and Certificate of Origin
1. The declaration of origin or certificate of origin shall specify on the face of the document issued in respect of the good that the goods enumerated thereon are the origin of the exporting Party and meet the requirements of this Chapter, and shall include:
(a) a full description of the goods;
(b) the goods' six digit Harmonized System reference;
(c) the rule of origin by which the goods qualify (wholly obtained, produced entirely from originating materials or by product-specific rule including, where applicable, the regional value content);
(d) the producer's name(s);
(e) the exporter's name(s), address and contact details;
(f) the consignee's name(s), address and contact details; and
(g) the importer's name(s) in respect of imported goods, if known.
2. The declaration of origin or certificate of origin:
(a) shall be completed in English; and
(b) may be made in respect of one or more goods in the shipment.
3. The certificate of origin shall also:
(a) bear a unique reference number given by the issuer of the certificate of origin; and
(b) contain sufficient details to identify the consignment to which it relates. (1)
4. Further operational certification procedures that shall apply to the application for and issuing of a certificate of origin shall be mutually determined between the relevant agencies of the Parties in an exchange of letters. Any subsequent amendments shall be similarly mutually determined in an exchange of letters between the relevant agencies of the Parties.
Article 18. Exceptions from Declaration of Origin
1. An importing Party may not require a declaration of origin to admit goods pursuant to tariff preference where:
(a) the customs value of the importation does not exceed US$1,000 or the equivalent amount in the Party's currency or a higher amount as it may establish; or
(b) in respect of specific goods, a Party has waived the requirement for a declaration of origin.
2. Where an importation forms part of a series of importations that may reasonably be considered to have been undertaken or arranged for the purpose of avoiding the requirement for a declaration of origin, the customs administration of the importing Party may deny preferential tariff treatment. Examples include the shipping marks, importer's purchase order number, exporter's invoice number, or number and types of packages.
Article 19. Records
1. Each Party shall require that, consistent with its domestic law, producers, exporters or importers, as appropriate, maintain for a period specified in its domestic law all records relating to an exportation or importation which are necessary to demonstrate that a good for which a claim for tariff preference was made qualifies for preferential tariff treatment. In addition, Hong Kong, China shall inform producers in its Area that they should maintain for a period of not less than seven years after the date of exportation all records relating to that exportation which are necessary to demonstrate to New Zealand that a good for which a claim for tariff preference was made qualifies for preferential tariff treatment.
2. In addition, with respect to any good falling within Chapter 61 or Chapter 62 of the Harmonized System, Hong Kong, China shall seek a written commitment from the producer of the good that all records relating to that exportation which are necessary to demonstrate that a good for which a claim for tariff preference was made qualifies for preferential tariff treatment shall be maintained for a period of not less than seven years after the date of exportation. Where the producer provides such a written commitment, Hong Kong, China shall ensure that is recorded in the certificate of origin issued in respect of that good, and shall retain that written commitment for a period of not less than seven years.
3. The Trade and Industry Department of Hong Kong, China and each Government Approved Certification Organisation of Hong Kong, China shall maintain copies of certificates of origin and the application details submitted for a period of not less than seven years.
Article 20. Compliance with Direct Consignment
Compliance with Article 9 may be evidenced by means of supplying to the customs authorities of the importing Party either customs documents of a non-Party or documents of the competent authorities of a non-Party, together with commercial shipping or freight documents.
Article 21. Non-party Invoicing
The customs administration of the importing Party may accept a declaration of origin in cases where the sales invoice is issued either by a company located in a non-Party or by an exporter for the account of that company, provided that the goods meet the requirements of Section A.
Article 22. Verification of Origin
1. For the purposes of determining whether a good imported into its Area from the Area of the other Party qualifies as an originating good, the importing Party may, through its customs administration, conduct a verification of eligibility for preferential tariff treatment by means of:
(a) requests for information to the importer;
(b) requests for information to the exporter or producer in the Area of the other Party;
(c) requests for information to the customs administration of the other Party;
(d) subject to the consent of the relevant exporter or producer, visits to the premises of an exporter or producer in the Area of the other Party arranged by and in company with the customs administration of the other Party; (2) or
(e) such other procedures as the customs administrations of the Parties may agree.
2. Any such verification activities shall only be undertaken if:
(a) there are reasonable grounds to doubt the accuracy or authenticity of the declaration of origin, certificate of origin, or the origin status of the goods concerned;
(b) the purpose is to facilitate audit checks by the importing Party on a risk management basis; or
(c) the purpose is to ascertain the fulfilment of any other requirement of this Chapter.
3. Any request that is made to the customs administration of the exporting Party pursuant to Paragraph 1 shall specify the reasons, and any documents and information supporting the request shall be forwarded to the customs administration of the exporting Party.
4. All requests for information shall be accompanied by sufficient information to identify the good about which the request is made.
Article 23. Denial of Preferential Tariff Treatment
1. A Party may deny preferential tariff treatment for a good when:
For greater certainty, a visit shall not include the review of records kept by the exporter or producer including those records referred to in Article 19, unless the customs administrations of the Parties otherwise agree.
(a) the good does not qualify as an originating good pursuant to this Chapter; or
(b) the importer, exporter or producer, as appropriate, fails to provide information which the Party has requested in the course of a verification process under Article 22, or otherwise fails to comply with any of the relevant requirements of this Chapter.
2. In the event preferential tariff treatment is denied, the importing Party shall ensure that its customs administration provides in writing to the exporter, the importer or producer, as the case may be, the reasons for that decision.
Article 24. Refund of Import Duties
1. Where a declaration of origin is not provided at the time of importation of a good from a Party pursuant to Paragraph 1 of Article 16, the importing Party may impose the applied non-preferential import customs duty or require payment of a deposit on that good, where applicable. In such a case, the importer may apply for a refund of any excess import customs duty or deposit paid within one year of the date on which the good was imported, provided that:
(a) a written declaration that the good presented qualifies as an originating good was provided to the customs administration of the importing Party at the time of importation; and
(b) a valid declaration of origin or other evidence to substantiate the origin of the goods is provided in relation to the good imported.
2. Where a certificate of origin has not been obtained at the time of importation of a good from Hong Kong, China to New Zealand pursuant to Paragraph 2 of Article 16, New Zealand shall impose the applied non-preferential import customs duty. In such a case, the importer may apply for a refund of any excess import customs duty within one year of the date on which the good was imported, provided that a valid certificate of origin in relation to the good imported is provided to the customs administration of New Zealand.
Chapter 5. Customs Procedures and Cooperation
Article 1. Objectives and Scope
1. The objectives of this Chapter are to:
(a) simplify and harmonise customs procedures of the Parties;
(b) ensure predictability, consistency and transparency in the application of customs laws and administrative procedures of the Parties;
(c) ensure the efficient and expeditious clearance of goods and means of transport;
(d) facilitate trade between the Parties; and
(e) promote cooperation between the customs administrations, within the scope of this Chapter.
2. This Chapter shall apply, in accordance with the Parties' respective international obligations and domestic customs law, to customs procedures applied to goods traded between the Parties and to the movement of means of transport between the Parties.
Article 2. Definitions
For the purposes of this Chapter:
(a) customs administration means:
(i) in relation to New Zealand, the New Zealand Customs Service; and
(ii) in relation to Hong Kong, China, the Customs and Excise Department of Hong Kong, China;
(b) customs law means any legislation administered, applied or enforced by the customs administration of a Party;
(c) customs procedures means the treatment applied by the customs administration to goods and means of transport that are subject to customs control;
(d) express consignments means all goods imported by an enterprise operating a consignment service for the expeditious international movement of goods that assumes liability to the customs administration for those goods; and
(e) means of transport means various types of vessels, vehicles, aircraft and pack-animals which enter or leave the Area carrying persons or goods.
Article 3. Facilitation
1. Each Party shall ensure that its customs procedures and practices are predictable, consistent, transparent and facilitate trade, in accordance with this Chapter.
2. Customs procedures of each Party shall where possible conform to the standards and recommended practices of the World Customs Organization, including those of the International Convention on the Simplification and Harmonization of Customs Procedures (as amended), known as the Revised Kyoto Convention.
3. Customs administrations of the Parties shall facilitate the clearance of goods in administering their customs procedures in accordance with this Chapter.
4. Each customs administration shall provide one or more focal points, electronic or otherwise, through which its traders may submit all information as may be required by the customs administration in respect of the importation of goods.
Article 4. Customs Valuation
The Parties shall determine the customs value of goods traded between them in accordance with Article VII of GATT 1994 and the Customs Valuation Agreement.
Article 5. Tariff Classification
Each Party shall apply the International Convention on the Harmonized Commodity Description and Coding System to goods traded between the Parties.
Article 6. Advance Rulings
1. Each customs administration shall provide, in writing, advance rulings in respect of the tariff classification and origin of goods ("advance rulings") to an applicant described in Paragraph 2(a).
2. Each Party shall adopt or maintain procedures for advance rulings, which shall:
(a) provide that an exporter, importer or any person with a justifiable cause may apply for an advance ruling before the importation of the goods in question;
(b) require that an applicant for an advance ruling provide a detailed description of the goods and all relevant information needed to issue an advance ruling;
(c) provide that its customs administration may, at any time during the course of issuing an advance ruling, request that the applicant provide additional information within a specified period;
(d) provide that any advance ruling be based on the facts and circumstances presented by the applicant, and any other relevant information in the possession of the decision-maker; and
(e) provide that the ruling be issued to the applicant expeditiously on receipt of all necessary information, and in any case within:
(i) 60 days with respect to tariff classification; and
(ii) 150 days with respect to origin.
3. A Party may reject a request for an advance ruling where the additional information requested by its customs administration in accordance with Paragraph 2(c) is not provided within the specified period.
4. Subject to Paragraph 5, each Party shall apply an advance ruling to all importations of goods described in that ruling imported into its Area within a period of at least three years from the date of that ruling.
5. A Party may modify or revoke an advance ruling:
(a) upon a determination that the advance ruling was based on an error of fact or law, or the information provided is false or inaccurate;
(b) if there is a change in domestic law which is consistent with this Agreement; or
(c) if there is a change in a material fact, or circumstances on which the ruling is based.
6. Where an importer claims that the treatment applied to an imported good should be governed by an advance ruling, the customs administration may evaluate whether the facts and circumstances of the importation are consistent with the facts and circumstances upon which the advance ruling was based.
Article 7. Use of Automated Systems
The customs administration of each Party shall apply information technology to support customs operations where it is practicable, cost-effective and efficient, particularly in the paperless trading context, including taking into account developments on this issue within the World Customs Organization.
Article 8. Express Consignments
Each customs administration shall adopt procedures to expedite the clearance of express consignments while maintaining appropriate control, including: (a) to provide for pre-arrival processing of information related to express consignments; (b) to permit the submission of a single document covering all goods contained in an express consignment, through electronic means if possible; and (c) to minimise, to the extent possible, the documentation required for the release of express consignments.
Article 9. Release of Goods
Each Party shall adopt or maintain procedures which allow goods to be released within 48 hours of arrival, and at the point of arrival without temporary transfer to warehouses or other locations, unless:
(a) the importer fails to provide any information required by the importing Party at the time of first entry;
(b) the goods are selected for closer examination by the customs administration of the importing Party through the application of risk management techniques;
(c) the goods are to be examined by any agency, other than the customs administration of the importing Party, acting under powers conferred by the domestic law of the importing Party; or
(d) fulfilment of all necessary customs formalities has not been able to be completed or release is otherwise delayed by virtue of force majeure.
Article 10. Risk Management
1. The Parties shall administer customs procedures so as to facilitate the clearance of low-risk goods and focus on high-risk goods. 2. To enhance the flow of goods across their borders, the customs administration of each Party shall regularly review its customs procedures.
Article 11. Review and Appeal
1. Each Party shall provide for the right of review or appeal without penalty in regard to customs administrative rulings, determinations or decisions by the importer, exporter or any other person affected by that administrative ruling, determination or decision.
2. An initial right of review or appeal described in Paragraph 1 may be to an authority within the customs administration or to an independent body; but in any case the domestic law of each Party shall provide for the right of review or appeal without penalty to a judicial authority.
3. Notice of the decision on any review or appeal shall be given to the applicant and the reasons for such decision shall be provided in writing.
Article 12. Customs Cooperation
1. To the extent permitted by their domestic laws, the customs administrations of the Parties shall assist each other by providing information in relation to:
(a) the implementation and operation of this Chapter and, as appropriate, Chapter 4 (Rules of Origin);
(b) security of trade between the Parties; and
(c) such other issues as the Parties mutually determine.
2. Each customs administration shall provide the other customs administration with timely notice of any modification of its customs law or procedures that is likely to substantially affect the operation of this Chapter.
Article 13. Consultations
1. 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 customs administration. Customs administrations of the Parties shall notify each other promptly of any amendments to the details of their contact points.
2. Either 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 receipt of the request, unless the customs administrations of the Parties mutually determine otherwise. 3. In the event that such consultations fail to resolve the matter, the requesting Party may refer the matter to the Committee on Trade in Goods for consideration.
4. 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.
5. Any action taken pursuant to this Article shall be without prejudice to the rights and obligations of the Parties under Chapter 16 (Dispute Settlement) or under the WTO Dispute Settlement Understanding.
Article 14. Publication and Enquiry Points
1. Each customs administration shall publish, on the internet or in print form, its customs law and any administrative procedures it applies or enforces.
2. Each customs administration shall designate one or more enquiry points to deal with enquiries from interested persons from either Party on customs matters arising from the implementation of this Agreement, and provide details of such enquiry points to the other customs administration. Customs administrations of the Parties shall notify each other promptly of any amendments to the details of their enquiry points.
Article 15. Review of Customs Procedures
Each customs administration shall periodically review its customs procedures with a view to their further simplification and the development of mutually beneficial arrangements to facilitate the flow of trade between the Parties.
Chapter 6. Trade Remedies
Article 1. General Provisions
1. The Parties agree not to take any trade remedy action pursuant to Article VI of GATT 1994, the WTO Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, the WTO Agreement on Subsidies and Countervailing Measures, Article XIX of GATT 1994 and the WTO Agreement on Safeguards in an arbitrary or protectionist manner.
2. Each Party shall carry out trade remedy actions in accordance with the principle of procedural fairness and accepted WTO standards of best practice. 3. The Parties agree to carry out trade remedy actions in a transparent manner.
Article 2. Subsidies and Countervailing Measures
1. The Parties agree to prohibit export subsidies (3) on all goods including agricultural products.
2. The Parties maintain their rights and obligations under Article VI of GATT 1994 and the WTO Agreement on Subsidies and Countervailing Measures. "Export subsidies" means subsidies as defined by Article 3 of the WTO Agreement on Subsidies and Countervailing Measures and Article 1(e) of the WTO Agreement on Agriculture.
Article 3. Safeguard Measures
1. The Parties maintain their rights and obligations under Article XIX of GATT 1994 and the WTO Agreement on Safeguards.
2. A Party taking any measure pursuant to Article XIX of GATT 1994 and the WTO Agreement on Safeguards shall exclude imports of an originating good from the other Party from the action if such imports do not in and of themselves cause or threaten to cause serious injury.
3. Each Party shall promptly advise the contact point of the other Party of the initiation of any global safeguard investigation and the reasons for initiation.
Article 4. Anti-dumping Measures
1. The Parties maintain their rights and obligations under Article VI of GATT 1994 and the WTO Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994.
2. Pursuant to Article 5(5) of the WTO Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, a Party that has received a properly documented application from an industry in its Area for the initiation of an anti-dumping investigation in respect of products from the other Party shall, as soon as possible but no later than seven days following receipt, give written notice to the other Party through the contact point designated pursuant to Article 5.
Article 5. Consultations
1. Each Party 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 Parties shall notify each other promptly of any amendments to the details of their contact points.
2. A Party may at any time request consultations with the other Party 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 receipt of the request, unless the Parties mutually determine otherwise.
3. Any action taken pursuant to this Article shall be without prejudice to the rights and obligations of the Parties under Chapter 16 (Dispute Settlement) or under the WTO Dispute Settlement Understanding.
Chapter 7. Sanitary and Phytosanitary Measures
Article 1. Objectives
The objectives of this Chapter are to:
(a) uphold and enhance implementation of the SPS Agreement and applicable international standards, guidelines and recommendations developed by the Codex Alimentarius Commission ("Codex"), the World Organisation for Animal Health ("OIE") and under the framework of the International Plant Protection Convention ("IPPC");
(b) facilitate trade between the Parties through establishing a mechanism to address, and where possible resolve, market access matters while protecting human, animal or plant life or health in the Areas of the Parties;
(c) provide a means to improve communication, consultation and cooperation between the Parties on sanitary and phytosanitary matters; and
(d) strengthen collaboration between the Parties in relevant international bodies that develop international standards, guidelines and recommendations relevant to the matters covered by this Chapter.
Article 2. Scope
This Chapter shall apply to all sanitary or phytosanitary measures of a Party that may, directly or indirectly, affect trade between the Parties.
Article 3. Definitions
For the purposes of this Chapter:
(a) Implementing Arrangements means subsidiary documents to this Chapter which set out mutually determined mechanisms for applying, or outcomes derived from applying, the principles and processes outlined in this Chapter;
(b) SPS Agreement means the Agreement on the Application of Sanitary and Phytosanitary Measures, which is part of the WTO Agreement;
(c) the definitions in Annex A of the SPS Agreement are incorporated into and made part of this Chapter, mutatis mutandis; and
(d) the relevant definitions developed by Codex, OIE and under the framework of the IPPC shall apply in the implementation of this Chapter.
Article 4. International Obligations
Nothing in this Chapter or any Implementing Arrangements shall limit the rights or obligations of the Parties pursuant to the SPS Agreement.
Article 5. Competent Authorities and Contact Points
1. The competent authorities of the Parties are those authorities that are responsible for the implementation of matters within the scope of this Chapter, as identified in the first Implementing Arrangement to be known as "Implementing Arrangement 1".
2. At the request of either Party, competent authorities of the Parties shall jointly consider any matters relating to the implementation of this Chapter, including:
(a) establishing technical working groups to identify and address relevant technical and scientific issues;
(b) initiating, developing, adopting, reviewing and modifying Implementing Arrangements on technical matters which give practical effect to the provisions of this Chapter in order to facilitate trade between the Parties;
(c) establishing, monitoring and reviewing work plans which contribute to achieving the objectives of this Chapter; and
(d) reporting, as required, to the Joint Commission on their activities within the scope of this Chapter.
3. Each Party shall designate a contact point for its competent authorities, which shall be set out in Implementing Arrangement 1.
4. When the competent authorities need to consider any matters relating to the implementation of this Chapter as provided for in Paragraph 2, such consideration may be carried out in person or via teleconference, video-conference or any other means mutually determined by the Parties. The competent authorities may also address issues through correspondence, including via electronic communication.
5. The Parties shall inform each other of any significant changes in the structure, organisation and division of responsibility within its competent authorities.
Article 6. Implementing Arrangements
1. Consistent with Paragraph 2(b) of Article 5, the Implementing Arrangements shall set out understandings reached, including in relation to competent authorities, contact points, equivalence, adaptation to regional conditions and verification as provided for in Articles 5, 7, 8 and 9.
2. Where Implementing Arrangements have been adopted, they shall be applied to trade between the Parties. 3. Each Party responsible for the implementation of an Implementing Arrangement shall take all necessary actions to do so within a reasonable period of time as mutually determined by the Parties.
Article 7. Equivalence
1. The Parties may make determinations of equivalence consistent with the SPS Agreement and in particular Article 4 of the SPS Agreement which provides for the recognition of sanitary or phytosanitary measures as equivalent where the exporting Party objectively demonstrates to the importing Party that its measures achieve the importing Party's appropriate level of sanitary or phytosanitary protection. The determination of equivalence may be in relation to an individual measure and/or group of measures and/or systems applicable to a sector or part of a sector.
2. The Parties may agree the principles and procedures applicable to the determinations of equivalence made in accordance with Paragraph 1, and any such agreed principles and procedures shall be recorded in an Implementing Arrangement.
3. Any determination of equivalence shall be recorded in an Implementing Arrangement.
Article 8. Adaptation to Regional Conditions
1. The Parties may make determinations in relation to regionalisation, pest-free areas, areas of low pest prevalence, zoning and compartmentalisation consistent with the SPS Agreement, and in particular Article 6 of the SPS Agreement. Such determinations shall be consistent with relevant OIE and IPPC standards which provide, inter alia, for the recognition of pest-free areas or areas of low pest prevalence where the exporting Party objectively demonstrates to the importing Party that such areas are, and are likely to remain, pest-free areas or areas of low pest prevalence. These determinations may be made at various levels, including farms and processing establishments, which have appropriate sanitary or phytosanitary measures in place.
2. The Parties may agree the principles and procedures applicable to the determinations regarding adaptation to regional conditions made in accordance with Paragraph 1, and any such agreed principles and procedures shall be recorded in an Implementing Arrangement.
3. Any determinations in relation to regionalisation, pest-free areas, areas of low pest prevalence, zoning and compartmentalisation shall be recorded in an Implementing Arrangement.
Article 9. Verification
1. In order to maintain confidence in the effective implementation of this Chapter, each Party may carry out verification and audit of the exporting Party's system of regulating compliance with sanitary and phytosanitary requirements applicable to the trade. Such verification and audit procedures shall be risk-based and proportionate to the record of compliance. Verification and audit may include reviews of the exporting Party's sanitary and phytosanitary system, on-site visits to a sample of establishments and/or verification of a proportion of imports from the exporting Party.
2. The Parties may agree the principles and guidelines applicable to any verification or audit, taking account of the relevant domestic law of the exporting Party. Any such agreed principles and guidelines shall be recorded in an Implementing Arrangement.
Article 10. Emergency Measures
A Party may, on serious human, animal or plant life or health grounds, take emergency measures necessary for the protection of human, animal or plant life or health. Within 24 hours of a Party taking any emergency measures, such measures shall be notified to the contact point of the other Party. On request of either Party, consultations between the competent authorities regarding the situation shall be held within eight days of receipt of the request by the contact point, unless otherwise agreed by the Parties. The Parties shall take due account of any information provided through such consultations.
Article 11. Notification
1. The Parties shall notify each other in a timely and appropriate manner in writing through the contact points of any significant food safety issue or change in animal health, plant health or pest status in their Area that is relevant to existing trade.
2. Where one Party notifies the other Party of non-compliance of imported consignments with sanitary or phytosanitary measures, the Parties shall cooperate as follows, drawing on the guidelines of relevant international organisations where available:
(a) where significant non-compliance with sanitary or phytosanitary measures arises, the importing Party shall notify as soon as possible the exporting Party of the consignment details; and
(b) the Parties should consult to ensure that appropriate remedial actions are undertaken by the Parties to address the area of non-compliance.
3. Unless specifically required by its domestic law or policies, the importing Party shall avoid suspending trade based on one non-compliant consignment and should contact the exporting Party to ascertain how the non-compliance has occurred.