Title
AUSTRALIA - PERU FREE TRADE AGREEMENT
Preamble
PREAMBLE
Australia and the Republic of Peru, hereinafter referred to as "the Parties", resolving to:
ESTABLISH a comprehensive agreement that promotes economic integration to liberalise trade and investment, bring economic growth and social benefits, create new opportunities for workers and businesses, contribute to raising living standards, benefit consumers, reduce poverty and promote sustainable growth;
STRENGTHEN the bonds of friendship and cooperation between them and their peoples;
BUILD on their respective rights and obligations under the Marrakesh Agreement Establishing the World Trade Organization;
STRENGTHEN the competitiveness of their businesses in global markets and enhance the competitiveness of their economies by promoting opportunities for businesses, including promoting the development and strengthening of supply chains;
SUPPORT the growth and development of micro-, small and medium-sized enterprises by enhancing their ability to participate in and benefit from the opportunities created by this Agreement;
ESTABLISH a predictable legal and commercial framework for trade and investment through mutually advantageous rules;
FACILITATE trade by promoting efficient and transparent customs procedures that reduce costs and ensure predictability for their importers and exporters;
RECOGNISE their inherent right to regulate and resolve to preserve the flexibility of the Parties to set legislative and regulatory priorities, safeguard public welfare, and protect legitimate public welfare objectives, such as public health, safety, the environment, the conservation of living or non-living exhaustible natural resources, the integrity and stability of the financial system and public morals;
AFFIRM that state-owned enterprises can play a legitimate role in the diverse economies of the Parties, while recognising that the provision of unfair advantages to state-owned enterprises undermines fair and open trade and investment, and resolve to establish rules for state-owned enterprises that promote a level playing field with privately owned businesses, transparency and sound business practices;
PROMOTE high levels of environmental protection, including through effective enforcement of environmental laws, and further the aims of sustainable development, including through mutually supportive trade and environmental policies and practices;
PROTECT and enforce labour rights, and strengthen cooperation and the Parties' capacity on labour issues;
PROMOTE transparency, good governance and the rule of law, and eliminate bribery and corruption in trade and investment;
RECOGNISE the important work that their relevant authorities are doing to strengthen macroeconomic cooperation, including on exchange rate issues, in appropriate fora;
RECOGNISE the importance of cultural identity and diversity within the Parties,
and that trade and investment can expand opportunities to enrich cultural identity and diversity at home and abroad;
CONTRIBUTE to the harmonious development and expansion of world trade and provide a catalyst to broader international cooperation; and
ESTABLISH an Agreement to address future trade and investment challenges and opportunities, and contribute to advancing their respective priorities over time,
HAVE AGREED as follows:
Body
Chapter 1. Initial Provisions and General Definitions
Section A. Initial Provisions
Article 1.1. Establishment of a Free Trade Area
The Parties, consistent with Article XXTV of GATT 1994 and Article V of GATS, hereby establish a free trade area in accordance with the provisions of this Agreement.
Article 1.2. Relation to other Agreements
1. The Parties affirm their existing rights and obligations with respect to each other under existing international agreements, to which both Parties are party, including the WTO Agreement.
2. Unless otherwise provided for in this Agreement:
(a) this Agreement shall not be construed to derogate from any international legal obligation between the Parties that provides for more favourable treatment of goods, services, investments, or persons than that provided for under this Agreement; and
(b) in the event of any inconsistency between this Agreement and other agreements to which both Parties are party, 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.
Section B. General Definitions
Article 1.3. General Definitions
For the purposes of this Agreement, unless otherwise provided in this Agreement:
Agreement means the Peru-Australia Free Trade Agreement;
Agreement on Agriculture means the Agreement on Agriculture, set out in Annex 1A to the WTO Agreement;
Agreement on Trade-Related Investment Measures means the Agreement on Trade- Related Investment Measures, set out in Annex 1A to the WTO Agreement;
APEC means Asia-Pacific Economic Cooperation; central level of government means:
(a) for Australia, the Commonwealth government; and
(b) for Peru, the national level of government; covered investment means, with respect to a Party, an investment in its territory of an investor of the other Party in existence as of the date of entry into force of this Agreement or established, acquired, or expanded thereafter;
customs administration means:
(a) for Australia, the Department of Immigration and Border Protection; and
(b) for Peru, the National Superintendence of Customs and Tax Administration (Superintendencia Nacional de Aduanas y de Administracién Tributaria),
or any successor of such customs administration;
customs duty includes any duty or charge of any kind imposed on or in connection with the importation of a good, and any surtax or surcharge imposed in connection with such
importation, but does not include any:
(a) charge equivalent to an internal tax imposed consistently with Article XI:2 of GATT 1994;
(b) fee or other charge in connection with the importation commensurate with the cost of services rendered; or
(c) antidumping or countervailing duty;
Customs Valuation Agreement means the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994, set out in Annex 1A to the WTO Agreement;
days means calendar days;
enterprise means any entity constituted or organised under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, including any corporation, trust, partnership, sole proprietorship, joint venture, association or similar organisation;
existing means in effect on the date of entry into force of this Agreement;
GATS means the General Agreement on Trade in Services, set out in Annex 1B to the WTO Agreement;
GATT 1994 means the General Agreement on Tariffs and Trade 1994, set out in Annex 1A to the WTO Agreement;
goods means any merchandise, product, article or material;
goods of a Party means domestic products as these are understood in GATT 1994 or such goods as the Parties may agree, and includes originating goods of a Party;
government procurement means the process by which a government obtains the use of or acquires goods or services, or any combination thereof, for governmental purposes and not with a view to commercial sale or resale or use in the production or supply of goods or services for commercial sale or resale;
Harmonized System (HS) means the Harmonized Commodity Description and Coding System, including its General Rules of Interpretation, Section Notes, Chapter Notes and Subheading Notes as adopted and implemented by the Parties in their respective laws;
heading means the first four digits in the tariff classification number under the Harmonized System;
Joint Commission means the Joint Commission established under Article 26.1 (Establishment of the Joint Commission);
measure includes any law, regulation, procedure, requirement or practice; national means:
(a) for Australia, a natural person who is an Australian citizen as defined in the Australian Citizenship Act 2007 (Cth), as amended from time to time, or any successor legislation, or a permanent resident; and
(b) for Peru, a natural person who has the nationality of Peru by birth, naturalisation or option in accordance with the Political Constitution of Peru (Constitucién Politica del Per') and other relevant domestic legislation, or a permanent resident;
originating means qualifying as originating under the rules of origin set out in Chapter 3 (Rules of Origin and Origin Procedures);
person means a natural person or an enterprise;
person of a Party means a national or an enterprise of a Party;
preferential tariff treatment means the customs duty rate applicable to an originating good, pursuant to each Party's Tariff Schedule set out in Annex 2-B (Tariff Commitments);
recovered material means a material in the form of one or more individual parts that results from:
(a) the disassembly of a used good into individual parts; and
(b) the cleaning, inspecting, testing or other processing of those parts as necessary for improvement to sound working condition;
regional level of government means:
(a) for Australia, a state of Australia, the Australian Capital Territory, or the Northern Territory; and
(b) for Peru, regional government in accordance with the Political Constitution of Peru (Constitucién Politica del Peri) and other applicable legislation;
remanufactured good means a good classified in HS Chapters 84 through 90 or under heading 94.02 except goods classified under HS headings 84.18, 85.09, 85.10, and 85.16, 87.03 or subheadings 8414.51, 8450.11, 8450.12, 8508.11, and 8517.11, that is entirely or partially composed of recovered materials and:
(a) has a similar life expectancy and performs the same as or similar to such a good when new; and
(b) has a factory warranty similar to that applicable to such a good when new;
Safeguards Agreement means the Agreement on Safeguards, set out in Annex 1A to the WTO Agreement;
sanitary or phytosanitary measure means any measure referred to in paragraph 1 of Annex A to the SPS Agreement;
SCM Agreement means the Agreement on Subsidies and Countervailing Measures, set out in Annex 1A to the WTO Agreement;
SME means a small and medium-sized enterprise, including a micro-sized enterprise;
SPS Agreement means the Agreement on the Application of Sanitary and Phytosanitary Measures, set out in Annex 1A to the WTO Agreement;
state enterprise means an enterprise that is owned, or controlled through ownership interests, by a Party;
subheading means the first six digits in the tariff classification number under the Harmonized System;
territory means:
(a) for Australia, the territory of Australia:
(i) excluding all external territories other than the Territory of Norfolk Island, the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands, the Territory of Ashmore and Cartier Islands, the Territory of Heard Island and McDonald Islands, and the Coral Sea Islands Territory; and
(ii) including Australia's air space, territorial sea, contiguous zone, exclusive economic zone and continental shelf over which Australia exercises sovereign rights or jurisdiction in accordance with international law;
(b) for Peru, the mainland territory, the islands, the maritime areas and the air space above them, under sovereignty or sovereign rights and jurisdiction of Peru, in accordance with the provisions of the Political Constitution of Peru (Constitucién Polftica del Peri) and other relevant domestic law and international law;
TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights, set out in Annex 1C to the WTO Agreement (1)
WTO means the World Trade Organization; and
WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh on April 15, 1994.
Chapter 2. National Treatment and Market Access for Goods
Section A. Definitions and Scope
Article 2.1. Definitions
For the purposes of this Chapter:
advertising films and recordings means recorded visual media or audio materials, consisting essentially of images or sound, showing the nature or operation of goods or services offered for sale or lease by a person of a Party, that are of a kind suitable for exhibition to prospective customers but not for broadcast to the general public;
commercial samples of negligible value means commercial or trade samples having a value, individually or in the aggregate as shipped, of not more than one U.S. dollar or the equivalent amount in the currency of either Party; or so marked, torn, perforated or otherwise treated that they are unsuitable for sale or for use except as commercial samples;
consular transactions means requirements that goods of a Party intended for export to the territory of the other Party must first be submitted to the supervision of the consul of the importing Party in the territory of the exporting Party for the purpose of obtaining consular invoices or consular visas for commercial invoices, certificates of origin, manifests, shippers' export declarations, or any other customs documentation required on or in connection with importation;
consumed means, with respect to a good:
(a) actually consumed; or
(b) further processed or manufactured:
(i) so as to result in a substantial change in the value, form or use of the good; or
(ii) in the production of another good;
duty-free means free of customs duty;
goods intended for display or demonstration includes their component parts, ancillary apparatuses and accessories;
import licensing means an administrative procedure requiring the submission of an application or other documentation, other than that generally required for customs clearance purposes, to the relevant administrative body of the importing Party as a prior condition for importation into the territory of that Party;
Import Licensing Agreement means the Agreement on Import Licensing Procedures, set out in Annex 1A to the WTO Agreement;
performance requirement means a requirement that:
(a) a given level or percentage of goods or services be exported;
(b) domestic goods or services of the Party granting a waiver of customs duties or an import licence be substituted for imported goods;
(c) a person benefiting from a waiver of customs duties or a requirement for an import licence purchase other goods or services in the territory of the Party that grants the waiver of customs duties or the import licence or accord a preference to domestically produced goods;
(d) a person benefiting from a waiver of customs duties or a requirement for an import licence produce goods or supply services in the territory of the Party that grants the waiver of customs duties or the import licence, with a given level or percentage of domestic content; or
(e) relates in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows,
but does not include a requirement that an imported good be:
(f) subsequently exported;
(g) used as a material in the production of another good that is subsequently exported;
(h) substituted by an identical or similar good used as a material in the production of another good that is subsequently exported; or
(i) substituted by an identical or similar good that is subsequently exported; and printed advertising materials means those goods classified in Chapter 49 of the
Harmonized System, including brochures, pamphlets, leaflets, trade catalogues, yearbooks published by trade associations, tourist promotional materials and posters, that are used to promote, publicise or advertise a good or service, are essentially intended to advertise a good or service, and are supplied free of charge.
Article 2.2. Scope
Unless otherwise provided in this Agreement, this Chapter shall apply to trade in goods of a Party.
Section B. National Treatment and Market Access for Goods
Article 2.3. National Treatment
1. Each Party shall accord national treatment to the goods of the other Party in accordance with Article III of GATT 1994, including its interpretative notes, and to this end, Article Il of GATT 1994 and its interpretative notes are incorporated into and made part of this Agreement, mutatis mutandis.
2. For greater certainty, the treatment to be accorded by a Party under paragraph 1 means, with respect to a regional level of government, treatment no less favourable than the most favourable treatment that the regional level of government accords to any like, directly competitive or substitutable goods, as the case may be, of the Party of which it forms a part.
3. Paragraph 1 shall not apply to the measures set out in Annex 2-A.
Article 2.4. Elimination of Customs Duties
1. Unless otherwise provided in this Agreement, neither Party shall increase any existing customs duty, or adopt any new customs duty, on an originating good.
2. Unless otherwise provided in this Agreement, each Party shall progressively eliminate its customs duties on originating goods in accordance with its Schedule to Annex 2-B.
3. On request of either Party, the Parties shall consult to consider accelerating the elimination of customs duties or improving the market access conditions set out in their Schedules to Annex 2-B.
4. An agreement between the Parties to accelerate the elimination of a customs duty on an originating good shall supersede any duty rate or staging category determined pursuant to the Parties' Schedules to Annex 2-B for that good once approved by each Party in accordance with its applicable legal procedures.
5. A Party may at any time unilaterally accelerate the elimination of customs duties set out in its Schedule to Annex 2-B on originating goods of the other Party. A Party shall inform the other Party as early as practicable before the new rate of customs duty takes effect.
6. For greater certainty, neither Party shall prohibit an importer from claiming for an originating good the rate of customs duty applied under the WTO Agreement.
7. For greater certainty, a Party may raise a customs duty to the level set out in its Schedule to Annex 2-B following a unilateral reduction for the respective year.
Article 2.5. Waiver of Customs Duties
1. Neither Party shall adopt any new waiver of a customs duty, or expand with respect to an existing recipient or extend to any new recipient the application of an existing waiver of a customs duty, that is conditioned, explicitly or implicitly, on the fulfilment of a performance requirement.
2. Neither Party shall, explicitly or implicitly, condition the continuation of any existing waiver of a customs duty on the fulfilment of a performance requirement.
Article 2.6. Goods Re-entered after Repair and Alteration
1. Neither Party shall apply a customs duty to a good, regardless of its origin, that re-enters the Party's territory after that good has been temporarily exported from the Party's territory to the territory of the other Party for repair or alteration, regardless of whether that repair or alteration could have been performed in the territory of the Party from which the good was exported for repair or alteration or increased the value of the good.
2. Neither Party shall apply a customs duty to a good, regardless of its origin, admitted temporarily from the territory of the other Party for repair or alteration.
3. For the purposes of this Article, "repair or alteration" does not include an operation or process that:
(a) destroys a good's essential characteristics or creates a new or commercially different good; or
(b) transforms an unfinished good into a finished good.
Article 2.7. Duty-free Entry of Commercial Samples of Negligible Value and Printed Advertising Material
Each Party shall grant duty-free entry to commercial samples of negligible value and printed advertising materials imported from the territory of the other Party, regardless of their origin, but may require that:
(a) commercial samples of negligible value be imported solely for the solicitation of orders for goods, or services provided from the territory, of the other Party or a non-Party; or