(e) exchanging information, upon request of a Party, on standards, technical regulations, and conformity assessment procedures;
(f) exchanging information on developments in non-governmental, regional, and multilateral fora engaged in activities related to standards, technical regulations, and conformity assessment procedures;
(g) encouraging the discussion on mutual recognition of the conformity assessment results performed in the other Party's territory;
(h) reviewing this Chapter in light of any development under the WTO TBT Committee and, if necessary, developing recommendations for amendments to this Chapter;
(i) as it considers appropriate, reporting to the Joint Commission on the implementation of this Chapter;
(j) taking any other steps that the Parties consider will assist them in implementing this Chapter; and
(k) upon written request of a Party, consulting with the aim of solving any matter arising under this Chapter within a reasonable period of time.
3. The Committee shall meet at least once a year, unless the Parties otherwise agree. Meetings may be conducted in person, or via teleconference, videoconference, or any other means as mutually agreed by the Parties.
4. For the purposes of this Article, the Committee shall be coordinated by:
(a) for China, the General Administration of Quality Supervision, Inspection and Quarantine, or its successor; and
(b) for Korea, the Korean Agency for Technology and Standards, or its successor. Depending on the issue, responsible ministries or regulatory agencies shall participate in the Committee meetings.
5. The authorities set out in paragraph 4 shall be responsible for coordinating with the relevant institutions and persons in their respective territories as well as for ensuring that such institutions and persons are engaged. The Committee shall carry out its work through the communication channels agreed by the Parties, which may include electronic mail, teleconferencing, videoconferencing, or other means.
Article 6.14. Information Exchange
1. Any information or explanation that is provided upon request of a Party pursuant to this Chapter shall be provided in print or electronically within a reasonable period of time. A Party shall endeavor to respond to each such request within 60 days.
2. Nothing in this Chapter shall be construed to require a Party to furnish any information the disclosure of which it considers is contrary to its essential security interests.
Article 6.15. Non-application of Dispute Settlement
Neither Party shall have recourse to Chapter 20 (Dispute Settlement) for any matter arising under this Chapter.
Chapter 7. Trade Remedies
Section A. Safeguard Measures
Article 7.1. Application of a Safeguard Measure
If, as a result of the reduction or elimination of a customs duty under this Agreement, an originating good of the other Party is being imported into the territory of a Party in such increased quantities, in absolute terms or relative to domestic production, and under such conditions as to cause or threaten to cause serious injury to the domestic industry that produces like or directly competitive goods, the Party may:
(a) suspend the further reduction of any rate of customs duty on the good provided for under this Agreement; or
(b) increase the rate of customs duty on the good to a level not to exceed the lesser of:
(i) the most-favored-nation (MFN) applied rate of duty on the good in effect on the date on which the safeguard measure is applied; and
(ii) the base rate of customs duty specified in the Schedules included in Annex 2-A (Reduction or Elimination of Customs Duties) pursuant to Article 2.4 (Reduction or Elimination of Customs Duties).
Article 7.2. Conditions and Limitations
1. A Party shall notify the other Party in writing on initiation of an investigation described in paragraph 2 and shall consult with the other Party as far in advance of applying a safeguard measure as practicable, with a view to reviewing the information arising from the investigation and exchanging views on the measure.
2. A Party shall apply a safeguard measure only following an investigation by the Party's competent authorities in accordance with Articles 3 and 4.2(c) of the Safeguards Agreement, and to this end, Articles 3 and 4.2(c) of the Safeguards Agreement are incorporated into and made part of this Agreement, mutatis mutandis.
3. In the investigation described in paragraph 2, the Party shall comply with the requirements of Articles 4.2(a) and 4.2(b) of the Safeguards Agreement, and to this end, Articles 4.2(a) and 4.2(b) of the Safeguards Agreement are incorporated into and made part of this Agreement, mutatis mutandis.
4. Each Party shall ensure that its competent authorities complete any such investigation within one year of its date of initiation.
5. Neither Party may apply a safeguard measure:
(a) except to the extent, and for such time as may be necessary to prevent or remedy serious injury and to facilitate adjustment;
(b) for a period exceeding two years, except that the period may be extended by up to two years if the competent authorities of the importing Party determine, in conformity with the procedures specified in this Article, that the measure continues to be necessary to prevent or remedy serious injury and to facilitate adjustment and that there is evidence that the industry is adjusting, provided that the total period of application of a safeguard measure, including the period of initial application and any extension thereof, shall not exceed four years; or
(c) beyond the expiration of the transition period, except with the consent of the other Party.
6. No safeguard measure shall be applied again to the import of a good which has been subject to such a measure for a period of time equal to that during which such measure had been previously applied, provided that the period of non-application is at least two years.
7. Where the expected duration of the safeguard measure is over one year, the importing Party shall progressively liberalize it at regular intervals.
8. When a Party terminates a safeguard measure, the rate of customs duty shall be the rate that, according to the Party's Schedule included in Annex 2-A (Reduction or Elimination of Customs Duties), would have been in effect but for the measure.
Article 7.3. Provisional Measures
1. In critical circumstances where delay would cause damage that would be difficult to repair, a Party may apply a safeguard measure on a provisional basis pursuant to a preliminary determination by its competent authorities that there is clear evidence that imports of an originating good from the other Party have increased as the result of the reduction or elimination of a customs duty under this Agreement, and such imports cause or threaten to cause serious injury to the domestic industry.
2. The applying Party shall notify the other Party before applying a safeguard measure on a provisional basis, and shall initiate consultations after applying the measure.
3. The duration of any provisional measure shall not exceed 200 days, during which time the applying Party shall comply with the requirements of Articles 7.2.2 and 7.2.3.
4. The applying Party shall promptly refund any tariff increases if the subsequent investigation does not determine that increased imports have caused or threatened to cause serious injury to a domestic industry. The duration of any provisional measure shall be counted as a part of the duration period of the measure described in Article 7.2.5(b).
Article 7.4. Compensation
1. No later than 30 days after it applies a safeguard measure, a Party shall afford an opportunity for the other Party to consult with it regarding appropriate trade liberalizing compensation in the form of concessions having substantially equivalent trade effects or equivalent to the value of the additional duties expected to result from the measure. The applying Party shall provide such compensation as the Parties mutually agree.
2. If the Parties are unable to reach agreement on compensation within 30 days of the commencement of consultations, the exporting Party may suspend the application of substantially equivalent concessions to the trade of the Party applying the safeguard measure. The exporting Party shall notify the applying Party in writing at least 30 days before suspending concessions.
3. The applying Party's obligation to provide compensation under paragraph 1 and the exporting Party's right to suspend concessions under paragraph 2 shall terminate on the date the safeguard measure terminates.
4. The right of suspension referred to in paragraph 2 shall not be exercised for the first two years that a safeguard measure is in effect, provided that the safeguard measure has been taken as a result of an absolute increase in imports and that such a measure conforms to this Agreement.
Article 7.5. Global Safeguard Measures
1. Each Party retains its rights and obligations under Article XIX of GATT 1994 and the Safeguards Agreement. This Agreement does not confer any additional rights or obligations on the Parties with regard to actions taken under Article XIX of GATT 1994 and the Safeguards Agreement.
2. On the request of the other Party, the Party intending to take safeguard measures may provide immediately ad hoc written notification of all pertinent information on the initiation of a safeguard investigation, the preliminary determination and the final determination of the investigation.
3. Neither Party may apply, with respect to the same good, at the same time:
(a) a bilateral safeguard measure; and
(b) a measure under Article XIX of GATT 1994 and the Safeguards Agreement.
Article 7.6. Definitions
For the purposes of Section A:
domestic industry means, with respect to an imported good, the producers as a whole of the like or directly competitive good operating in the territory of a Party, or those whose collective output of the like or directly competitive good constitutes a major proportion of the total domestic production of that good;
safeguard measure means a measure described in Article 7.1;
serious injury means a significant overall impairment in the position of a domestic industry;
threaten to cause serious injury means to cause serious injury that, on the basis of facts and not merely on allegation, conjecture, or remote possibility, is clearly imminent; and
transition period means the ten-year period following the date this Agreement enters into force, except that for any good for which the Schedule to Annex 2-A (Reduction or Elimination of Customs Duties) of the Party applying the safeguard measure provides for the Party to eliminate its tariffs on the good over a period of more than ten years, transition period means the tariff elimination period for the good set out in that Schedule.
Section B. Anti-Dumping and Countervailing Duties
Article 7.7. General Provisions
1. Except as otherwise provided for in this Agreement, each Party retains its rights and obligations under the WTO Agreement with regard to the application of anti-dumping and countervailing duties.
2. The Parties agree that anti-dumping and countervailing duties should be used in full compliance with the relevant provisions of WTO Agreements and should be based on a fair and transparent system as regards proceedings affecting goods originating in the other Party. For this purpose, the Parties shall ensure, immediately after any imposition of provisional measures and before the final determination, full and meaningful disclosure of all essential facts and considerations which form the basis for the decision to apply measures, without prejudice to Article 6.5 of the Anti-Dumping Agreement and Article 12.4 of the SCM Agreement. Disclosures shall be made in writing, and allow interested parties sufficient time to make their comments. The Parties shall take due consideration of the comments submitted and make due responses in the final determination.
3. The Parties agree not to take any action in an arbitrary or protectionist manner pursuant to the Anti-Dumping Agreement.
4. Both Parties confirm that there shall be no practice between the two Parties to use a methodology based on surrogate value of a third country, including the use of surrogate price or surrogate cost in determining normal value and export price when determining dumping margin during an anti-dumping procedure.
5. The Parties confirm their current practice of counting toward the average all individual margins, whether positive or negative, when the margins of dumping are established on the weighted-to-weighted basis or transaction-to-transaction basis, or weighted-to-transaction basis, and share their expectation that such practice will continue. (9)
Article 7.8. Notification and Consultations
1. After receipt by a Party's competent authorities of a properly documented anti-dumping application with respect to imports from the other Party, and no later than seven days before initiating an investigation, the Party shall provide written notification to the other Party of its receipt of the application, and may afford the other Party a meeting or other similar opportunities regarding the application, consistent with the Party's law.
2. After receipt by a Party's competent authorities of a properly documented countervailing duty application with respect to imports from the other Party, and before initiating an investigation, the Party shall provide written notification to the other Party of its receipt of the application as soon as possible, and before proceeding to initiate an investigation the Parties shall have consultations with a view to finding a mutually acceptable solution.
Article 7.9. Undertakings
1. After a Party's competent authorities initiate an anti-dumping or countervailing duty investigation, upon the request of the other Party, the Party shall transmit to the other Party's embassy or competent authorities written information regarding the Party's procedures for requesting its authorities to consider an undertaking on price including the time frames for offering and concluding any such undertaking.
2. In an anti-dumping investigation, where a Party's authorities have made a preliminary affirmative determination of dumping and injury caused by such dumping, the Party shall afford due consideration and opportunity for meetings, to exporters of the other Party regarding proposed price undertakings which, if accepted, may result in suspension of the investigation without imposition of anti-dumping duties, consistent with the Party's laws and procedures.
3. In a countervailing duty investigation, where a Party's authorities have made a preliminary affirmative determination of subsidization and injury caused by such subsidization, the Party shall afford due consideration and opportunity for meetings, to the other Party and exporters of the other Party regarding proposed price undertakings, which, if accepted, may result in suspension of the investigation without imposition of countervailing duties, consistent with the Party's laws and procedures.
Article 7.10. Verification
1. The general nature of information to be verified and information which needs to be provided should be notified to the exporters and producers concerned prior to the on-the-spot verification. 2. The result of the verification shall be disclosed to the exporters and producers concerned subject to the verification within a reasonable period after the verification.
Article 7.11. Public Hearing
Each Party shall take due consideration in holding a public hearing, either upon receipt of written application from interested parties or on its own initiative.
Article 7.12. Investigation after Termination Resulting from a Review
The Parties agree to examine carefully any application for initiation of an anti-dumping investigation on a good originating in the other Party and on which anti-dumping measures have been terminated in the previous 12 months as a result of a review.
Article 7.13. Cumulative Assessment
When imports from more than one country are simultaneously subject to anti-dumping or countervailing duty investigation, a Party shall examine carefully whether the cumulative assessment of the effect from the imports of the other Party is appropriate in light of the conditions of competition between the imported goods and the conditions of competition between the imported goods and the like domestic goods.
Article 7.14. De-minimis Standard Applicable to New Shipper Review
When determining individual margin pursuant to Article 9.5 of the Anti-Dumping Agreement, no duty shall be imposed on exporters or producers in the exporting Party for which it is determined that the dumping margin is less than the de-minimis threshold set out in Article 5.8 of the Anti-Dumping Agreement.
Section C. Committee on Trade Remedies
Article 7.15. Committee on Trade Remedies
1. The Parties hereby establish a Committee on Trade Remedies (hereinafter referred to as the "Committee") to oversee implementation of this Chapter and to discuss matters that the Parties agree. The Committee comprises representatives at an appropriate level from relevant agencies responsible for trade remedy measures of each Party.
2. The Committee will normally meet once a year and may meet more frequently as the Parties may agree.
Chapter 8. Trade In Services
Article 8.1. Definitions
For the purposes of this Chapter:
(a) aircraft repair and maintenance services means such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and do not include so-called line maintenance;
(b) commercial presence means any type of business or professional establishment, including through:
(i) the constitution, acquisition or maintenance of a juridical person; or
(ii) the creation or maintenance of a branch or a representative office, within the territory of a Party for the purpose of supplying a service;
(c) computer reservation system (CRS) services means services provided by computerised systems that contain information about air carriers' schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
(d) juridical person means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;
(e) juridical person of the other Party means a juridical person which is either:
(i) constituted or otherwise organised under the law of the other Party, and is engaged in substantive business operations in the territory of the other Party; or
(ii) in the case of the supply of a service through commercial presence, owned or controlled by:
1. a natural person of the other Party; or
2. a juridical person of the other Party identified under subparagraph (i);
(f) A juridical person is:
(i) owned by persons of a Party if more than 50 percent of the equity interest in it is beneficially owned by persons of that Party;
(ii) controlled by persons of a Party if such persons have the power to name a majority of its directors or otherwise to legally direct its actions; or
(iii) affiliated with another person when it controls, or is controlled by, that other person, or when it and the other person are both controlled by the same person;
(g) measures means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form taken by: (i) central or local governments and authorities; or
(ii) non-governmental bodies in the exercise of powers delegated by central or local governments or authorities.
(h) measures by the Parties affecting trade in services include measures in respect of:
(i) the purchase, payment or use of a service;
(ii) the access to and use of, in connection with the supply of a service, services which are required by the Parties to be offered to the public generally; or
(iii) the presence, including commercial presence, of persons of a Party for the supply of a service in the territory of the other Party;
(i) monopoly supplier of a service means any person, public or private, which in the relevant market of the territory of a Party is authorised or established formally or in effect by that Party as the sole supplier of that service;
(j) natural person of a Party means:
(i) with respect to China, a natural person who resides in the territory of either Party, and who under Chinese law is a national of China; or
(ii) with respect to Korea, a national of Korea under its domestic law;
(k) person means either a natural person or a juridical person;
(l) sector of a service means,
(i) with reference to a specific commitment, one or more, or all, subsectors of that service, as specified in a Party's Schedule of Specific Commitment in Annex 8-A; or
(ii) otherwise, the whole of that service sector, including all of its subsectors;
(m) selling and marketing of air transport services mean opportunities for the air carrier concerned to sell and market freely its air transport services including all aspects of marketing such as market research, advertising and distribution. These activities do not include the pricing of air transport services nor the applicable conditions;
(n) service consumer means any person that receives or uses a service;
(o) service of the other Party means a service which is supplied:
(i) from or in the territory of the other Party, or in the case of maritime transport, by a vessel registered under the laws of the other Party, or by a person of the other Party which supplies the service through the operation of a vessel or its use in whole or in part; or
(ii) in the case of the supply of a service through commercial presence or through the presence of natural persons, by the service supplier of the other Party;
(p) service supplied in the exercise of governmental authority means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers;
(q) service supplier means any person that supplies a service (10);
(r) supply of a service includes the production, distribution, marketing, sale and delivery of a service;
(s) trade in services means the supply of a service:
(i) from the territory of a Party into the territory of the other Party;
(ii) in the territory of a Party by a person of that Party to a person of the other Party;
(iii) by a service supplier of a Party, through commercial presence in the territory of the other Party; or
(iv) by a service supplier of a Party, through presence of natural persons of a Party in the territory of the other Party; and
(t) traffic rights means the right for scheduled and non-scheduled services to operate and/or to carry passengers, cargo and mail for remuneration or hire from, to, within, or over the territory of a Party, including points to be served, routes to be operated, types of traffic to be carried, capacity to be provided, tariffs to be charged and their conditions, and criteria for designation of airlines, including such criteria as number, ownership, and control.
Article 8.2. Scope
1. This Chapter shall apply to measures adopted or maintained by a Party affecting trade in services.
2. This Chapter shall not apply to:
(a) subsidies or grants provided by a Party except as provided for in Article 8.13 including government-supported loans, guarantees and insurance;
(b) services provided in the exercise of governmental authority within the territory of each respective Party;
(c) cabotage in maritime transport services;
(d) measures affecting air traffic rights, however granted or measures affecting services directly related to the exercise of air traffic rights, other than measures affecting:
(i) aircraft repair and maintenance services;
(ii) the selling and marketing of air transport services; and
(iii) computer reservation system ("CRS") services;
(e) financial services as defined in Article 9.14 (Definitions) (11); and
(f) measures affecting natural persons seeking access to the employment market of a Party, or measures regarding citizenship, residence or employment on a permanent basis.
3. Nothing in this Chapter shall prevent a Party from applying measures to regulate the entry of natural persons of the other Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits (12) accruing to the other Party under the terms of this Chapter as well as the terms of specific commitments undertaken.
4. Articles 8.3 and 8.4 shall not apply to laws, regulations or requirements governing the procurement by government agencies of services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the supply of services for commercial sale.