Australia - India Economic Cooperation and Trade Agreement - ECTA (2022) - Electronic Database of Investment Treaties (EDIT)

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Australia - India Economic Cooperation and Trade Agreement - ECTA (2022)

3. Within 30 days of the presentation of the final report of the panel to the Parties, the responding Party shall notify the complaining Party:

(a) of its intentions with respect to implementation, including an indication of actions it proposes to take to comply with paragraph 2;

(b) whether such implementation can take place immediately; and

(c) if such implementation is not practicable immediately, the reasonable period of time the responding Party would need to implement its proposed actions.

Article 13.14. Reasonable Period of Time

1. If the responding Party makes a notification that a reasonable period of time is required pursuant to subparagraph 3(c) of Article 13.13 (Implementation of Final Report), it shall, whenever possible, be mutually agreed by the Parties. Where the Parties are unable to agree on the reasonable period of time within 45 days of the presentation of the final report, either Party may request the chair of the panel to determine the reasonable period of time. Such request shall be made no later than 90 days after the presentation of the final report.

2. Where a request is made pursuant to paragraph 1, the chair of the panel shall present the Parties with a report containing a determination of the reasonable period of time and the reasons for such determination no later than 45 days after the request to the panel.

3. As a guideline, the reasonable period of time determined by the panel should not exceed 15 months from the date of the presentation of the report made pursuant to paragraph 2. However, such reasonable period of time may be shorter or longer, depending upon the particular circumstances. Further, the panel, in the determination of the reasonable period of time, may seek guidance from relevant jurisprudence and interpretation established under Article 21.3(c) of the DSU.

Article 13.15. Compliance Review

1. Where there is disagreement as to whether the responding Party has complied with paragraph 2 of Article 13.13 (Implementation of Final Report), a Party may request that the panel reconvene to decide the matter.

2. A request pursuant to paragraph 1 may only be made after the earlier of either:

(a) the expiry of the reasonable period of time determined in accordance with Article 13.14 (Reasonable Period of Time); or

(b) a notification by the responding Party that it has complied with paragraph 2 of Article 13.13 (Implementation of Final Report).

3. Any request for the compliance review panel shall provide a brief summary of the factual basis for the complaint, including the reason why the complaining Party considers that the responding Party has not complied with paragraph 2 of Article 13.13 (Implementation of Final Report).

4. When a request is made by the complaining Party in accordance with paragraphs 1 through 3, the compliance review panel shall be reconvened within 30 days of receipt of the request. The period for the compliance review panel proceedings, from the date of its reconvening until the date on which it presents its report to the Parties, shall not exceed 135 days, unless the Parties agree otherwise.

5. The compliance review panel shall make an objective assessment of the matter before it, including an objective assessment of:

(a) the factual aspects of any implementation action taken by the responding Party to comply with paragraph 2 of Article 13.13 (Implementation of Final Report); and

(b) whether the responding Party has complied with paragraph 2 of Article 13.13 (Implementation of Final Report).

6. The compliance report of the compliance review panel shall include:

(a) a descriptive part summarising the submissions and arguments of the Parties;

(b) its findings on the facts of the dispute arising under this Article, particularly on whether the responding Party has complied with paragraph 2 of Article 13.13 (Implementation of Final Report); and

7. The compliance review panel shall, where possible, present an interim compliance report to the Parties within 90 days of the panel reconvening pursuant to paragraph 4, and thereafter its final report within 45 days of issuing the interim compliance report. In exceptional cases, if the compliance review panel considers that it cannot release its interim compliance report within this time period, it shall promptly inform the Parties in writing of the reasons for the delay together with an estimate of when it will present its report. The panel shall not exceed an additional period of 30 days and, in the case of perishable goods, shall make every effort to not exceed 15 days.

8. The compliance review panel shall accord adequate opportunity to the Parties to submit written comments on the interim compliance report. Such comments shall be submitted to the compliance review panel within 20 days of the presentation of the interim compliance report, unless the Parties agree otherwise. After considering any written comments by the Parties on the interim compliance report, the panel may modify its report and make any further examination it considers appropriate. The panel shall include a discussion in its final compliance report of any comments made by the Parties on the interim compliance report.

Article 13.16. Compensation and Suspension of Concessions or other Obligations

1. The responding Party shall, if requested by the complaining Party, enter into negotiations with a view to agreeing on mutually acceptable compensation, where:

(a) the responding Party has notified the complaining Party that it will not comply with paragraph 2 of Article 13.13 (Implementation of Final Report) within the reasonable period of time determined in accordance with Article 13.14 (Reasonable Period of Time);

(b) the responding Party has failed to notify pursuant to paragraph 3 of Article 13.13 (Implementation of Final Report); and

(c) the compliance panel finds, pursuant to Article 13.15 (Compliance Review), that the responding Party has failed to comply with the final report.

2. If:

(a) no mutually satisfactory agreement on compensation is reached within 30 days of the Parties entering into negotiations in accordance with paragraph 1; or

(b) the Parties have agreed on compensation but the complaining Party considers that the responding Party has failed to observe the terms of the agreement,

the complaining Party may at any time thereafter provide written notice to the responding Party specifying the level of concessions or other obligations that itintends to suspend equivalent to the level of nullification or impairment. The complaining Party shall have the right to begin suspending concessions or other obligations 30 days after receipt of the written notice.

3. In considering what benefits to suspend in accordance with paragraph 2:

(a) a complaining Party should first seek to suspend concessions or other obligations in the same sector or sectors as that affected by the measure that the panel has found to be inconsistent with this Agreement; and

(b) a complaining Party may suspend concessions or other obligations in other sectors if it considers that it is not practicable or effective to suspend benefits in the same sector or sectors.

4. Any suspension of concessions or other obligations shall be restricted to concessions or other obligations accruing under this Agreement and shall not exceed the level of nullification or impairment.

5. Notwithstanding paragraph 2, the complaining Party shall not exercise the right to suspend concessions or other obligations under paragraph 2 where:

(a) a review is undertaken in accordance with paragraph 6 or 7; or

(b) a mutually agreed solution has been reached.

6. If the responding Party:

(a) objects to the level of suspension proposed in the notification made in accordance with paragraph 2 on the basis that it exceeds the level of nullification or impairment;

(b) considers that it has complied with the terms and conditions of any compensation agreed pursuant to paragraph 1; or

then, the responding Party may request, in writing, no later than 30 days after receipt of the notification referred to in paragraph 2, the panel to reconvene to make findings on the matter.

7. If a panel is requested to reconvene pursuant to paragraph 6, it shall reconvene within 30 days of receipt of the request. The reconvened panel shall present its decision to the Parties no later than 60 days after the receipt of the request. In exceptional cases, if the reconvened panel considers that it cannot present its decision within this time period it shall inform the Parties in writing of the reasons for the delay together with an estimate of when it will present its decision. The panel shall not exceed an additional period of 30 days and, in the case of perishable goods, shall make every effort to not exceed 15 days.

8. Concessions or other obligations shall not be suspended until the reconvened panel has presented its decision. Any suspension of concessions or other obligations shall be consistent with the reconvened panel's decision.

Article 13.17. Review after the Suspension of Concessions or other Obligations

1. Compensation and the suspension of concessions or other obligations shall be temporary and shall only be applied until such time as the responding Party has complied with paragraph 2 of Article 13.13 (Implementation of Final Report) or the Parties have reached a mutually agreed solution, whichever is earlier.

2. If the right to suspend benefits has been exercised pursuant to paragraph 2 of Article 13.16 (Compensation and Suspension of Concessions or Other Obligations), or mutually acceptable compensation has been agreed pursuant to paragraph 1 of Article 13.16 (Compensation and Suspension of Concessions or Other Obligations), and the responding Party considers that it has complied with paragraph 2 of Article 13.13 (Implementation of Final Report), the responding Party shall notify the complaining Party of the steps it has taken to comply.

3. Subject to paragraph 4, the complaining Party shall terminate the suspension of concessions or other obligations within 30 days of receipt of the notification in paragraph 2. In cases where compensation has been applied, and subject to paragraph 4, the responding Party may terminate the application of such compensation within 30 days of the complaining Party's receipt of the notification in paragraph 2.

4. If the Parties disagree on the existence or consistency with this Agreement of any steps notified in accordance with paragraph 2, no later than 30 days after the date of the complaining Party's receipt of the notification, a Party may request the panel in writing to reconvene to examine the matter. (2)

5. Paragraphs 5 through 8 of Article 13.15 (Compliance Review) shall apply if the panel reconvenes pursuant to paragraph 4.

6. If the reconvened panel decides that the steps notified in accordance with paragraph 2 achieve compliance with paragraph 2 of Article 13.13 (Implementation of Final Report), the suspension of benefits or the application of the compensation, shall be terminated no later than 30 days after the date of the decision.

7. If the reconvened panel decides that the steps notified in accordance with paragraph 2 do not achieve compliance with paragraph 2 of Article 13.13 (Implementation of Final Report), the suspension of benefits, or the application of the compensation, may continue. Where relevant, the level of suspension of benefits or of the compensation, shall be adapted in light of the decision of the panel.

(2) Where a panel is reconvened pursuant to this paragraph, it may also, on request of a Party, assess whether the level of any existing suspension of concessions or other obligations by the complaining Party is still appropriate and, if not, assess an appropriate level.

Article 13.18. Suspension or Termination of Proceedings

1. The Parties may agree that the panel suspend its work at any time for a period not exceeding 12 months from the date of such agreement. Within this period, the suspended panel shall be resumed upon the request of either Party. If the work of the panel has been suspended for more than 12 consecutive months, the authority for the establishment of the panel shall lapse unless the Parties agree otherwise.

2. The Parties may agree to terminate the proceedings before a panel at any time by jointly notifying the chair to this effect. Before the Panel presents its final report, it may at any stage of the proceedings propose to the Parties that the dispute be settled amicably. The proceedings may be terminated at any time before the presentation of the panel's initial report under Article 13.12 (Reports of the Panel) if the complaining Party withdraws its complaint.

Article 13.19. Official Language

All proceedings and all documents submitted to the panel shall be in the English language.

Article 13.20. Expenses

1. Unless agreed otherwise, each Party shall bear the costs of its appointed panellist and its own expenses and legal costs.

2. Unless the Parties agree otherwise, the costs of the chair of the panel and other expenses associated with the conduct of its proceedings shall be borne in equal parts by both Parties.

Article 13.21. Private Rights

Neither Party shall provide for a right of action under its law against the other Party on the ground that a measure of the other Party is inconsistent with this Agreement or that the other Party has otherwise failed to carry out its obligation under this Agreement.

Article 13.22. Time Periods

Any time periods provided for in this Chapter may be modified by mutual agreement of the Parties.

Article 13.23. Mutually Agreed Solution

1. The Parties may reach a mutually agreed solution at any time with respect to any dispute referred to in Article 13.3 (Scope).

2. If a mutually agreed solution is reached during panel proceedings, the Parties shall jointly notify the agreed solution to the panel. Upon such notification, the proceedings of the panel shall terminate.

3. Each Party shall take measures necessary to implement the mutually agreed solution within the agreed time period.

Article 13.24. Contact Point

1. Each Party shall designate a contact point for this Chapter and shall notify the other Party of the contact details of that contact point within 30 days of entry into force of this Agreement. Each Party shall promptly notify the other Party of any change to those contact details.

2. Any request, notification, written submission, or other document made in accordance with this Chapter shall be delivered to the other Party through its designated contact point.

Chapter 14. FINAL PROVISIONS

Article 14.1. Annexes, Appendices and Footnotes

The Annexes, Appendices and footnotes to this Agreement shall constitute an integral part of this Agreement. Where a side letter to this Agreement explicitly provides that it is an integral part of this Agreement, it shall constitute an integral part of this Agreement.

Article 14.2. Amendments to International Agreements

If any international agreement, or a provision therein, that has been referred to in this Agreement or incorporated into this Agreement is amended, the Parties shall, at the request of either Party, consult on whether to amend this Agreement.

Article 14.3. Amendments

The Parties may agree, in writing, to amend this Agreement. Such amendments shall enter into force 60 days after the date on which the Parties exchange written notifications confirming that they have completed their respective domestic requirements, including internal legal procedures, necessary for entry into force of the amendments, or on such other date as the Parties agree.

Article 14.4. General Reviews

1. The Parties, through the Joint Committee, shall undertake a general review of this Agreement at ministerial level within one year of the date of entry into force of this Agreement and thereafter every two years, or at such times as may be agreed by the Parties.

2. Any review pursuant to paragraph 1 shall take into account:

(a) facilitating trade and investment through further liberalisation of market access for goods and services;

(b) that balanced outcomes flow from the implementation and overall operation of this Agreement;

(c) that the disciplines contained in this Agreement remain relevant to the trade issues and challenges confronting the Parties;

(d) the work of relevant subcommittees, subsidiary bodies or working groups established under this Agreement, including reviews under relevant Chapters;

(e) relevant developments in international fora; and (f) any other matters as may be agreed by the Parties.

3. After 15 years from the date of entry into force of the Agreement, upon request of a Party, the Parties shall undertake a review of Chapter 4 (Rules of Origin), Annex 4A (Minimum Information Requirements), Annex 4B (Product Specific Rules of Origin), Chapter 2 (Trade in Goods) and Annex 2A (Tariff Commitments). The review shall:

(a) be jointly undertaken by the Subcommittee on Trade in Goods and the Joint Technical Subcommittee on Rules of Origin and Customs Procedures and Trade Facilitation established under Article 4.32 (Joint Technical Subcommittee on Rules of Origin and Customs Procedures and Trade Facilitation - Rules of Origin);

(b) make recommendations to the Joint Committee; and

4. Should a Party not agree to meet to undertake the review pursuant to paragraph 3 within 60 days of the receipt of the request, or no mutually satisfactory conclusion of the review is reached within 6 months of initiation of the review undertaken pursuant to paragraph 3, the other Party may seek to implement the proposal concerning the specific review through a written notice to the other Party with the details of the proposed changes. The notice shall take effect as soon as the Parties have agreed a mutually satisfactory solution within 6 months after the date of receipt of the notice and have effected the changes through the procedure for amendments set out in Article 14.3 (Amendments).

Article 14.5. Negotiation of a Comprehensive Economic Cooperation Agreement

The Parties hereby establish a Negotiation Subcommittee which shall be composed of government representatives of the Parties. Within 75 days after the date of signature of this Agreement, the Negotiation Subcommittee shall commence negotiations on amendments to this Agreement, on a without prejudice basis, on areas including inter alia market access for goods and services, a complete Product Specific Rules Schedule, a Digital Trade Chapter, and a Government Procurement Chapter, to transform this Agreement into a Comprehensive Economic Cooperation Agreement.

Following such negotiations, the Parties may make amendments to this Agreement in accordance with Article 14.3 (Amendments), to transform this Agreement into a Comprehensive Economic Cooperation Agreement.

Article 14.6. Termination

A Party may terminate this Agreement by giving the other Party notice in writing. Such termination shall take effect 6 months after the date of the notification, or on such other date as the Parties may agree.

Article 14.7. Entry Into Force

This Agreement shall enter into force 30 days after an exchange of written notifications, certifying completion of the necessary domestic requirements, including internal legal procedures, of each Party or on such other date as the Parties may agree.