(a) sanitary and phytosanitary measures which are covered in Chapter 4 (Sanitary and Phytosanitary Measures) of this Agreement; and
(b) purchasing specifications prepared by governmental bodies for production or consumption requirements of governmental bodies.
2. Without prejudice to paragraph 1, this Chapter shall apply to the preparation, adoption, and application of all technical regulations, standards, and conformity assessment procedures by: central government bodies; and, where explicitly provided for in this Agreement, government bodies at the level directly below that of the central level of government that may affect trade in goods between the Parties.
3. All references in this Chapter to technical regulations, standards, and conformity assessment procedures shall be construed to include any amendments (1) to them and any addition to the rules or the product coverage of those technical regulations, standards, and procedures, except amendments and additions of an insignificant nature.
4. Each Party shall take such reasonable measures that are within its authority to encourage observance by local government bodies, as the case may be, on the level directly below that of the central level of government within its territory which are responsible for the preparation, adoption and application of technical regulations, standards and conformity assessment procedures, of Articles 5.5 (Standards) and 5.7 (Conformity Assessment Procedures).
5. For greater certainty, nothing in this Chapter shall prevent a Party from preparing, adopting, applying, or maintaining technical regulations, standards, or conformity assessment procedures in accordance with its rights and obligations under this Agreement, the TBT Agreement, and any other relevant international agreement.
Article 5.4. Incorporation of the TBT Agreement
1. The Parties affirm their rights and obligations under the TBT Agreement, and the following provisions of the TBT Agreement are incorporated into and form part of this Agreement, mutatis mutandis:
(a) Article 2;
(b) Article 3;
(c) Article 4.1;
(d) Article 5;
(e) Article 6.1, 6.3; and
(f) Annex 3, except paragraph A.
2. In the event of any inconsistency between the provisions of the TBT Agreement incorporated under this Article and other provisions of this Chapter, the latter shall prevail.
3. This Chapter is subject to Chapter 15 (Dispute Settlement) at the entry into force of this Agreement.
4. No Party shall have recourse to dispute settlement under Chapter 15 (Dispute Settlement) for a dispute that exclusively alleges a violation of the provisions of the TBT Agreement incorporated under this paragraph.
Article 5.5. Standards
1. The Parties recognise the important role that international standards, guides, and recommendations can play in harmonising technical regulations, conformity assessment procedures, and national standards, and in reducing unnecessary barriers to trade.
2. To determine whether there is an international standard, guide, or recommendation within the meaning of Articles 2 and 5 and Annex 3 of the TBT Agreement, each Party shall apply the Decision of the Committee on Principles for the Development of International Standards, Guides and Recommendations with relation to Articles 2, 5 and Annex 3 of the Agreement (G/TBT/9, 13 November 2000, Annex 4), and subsequent relevant decisions and recommendations in this regard, adopted by the WTO Committee on Technical Barriers to Trade (WTO TBT Committee) in order to recognise a standard as an international standard.
3. Each Party shall ensure that its standardising body or bodies, while formulating national standards, shall ensure that such standards are not prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to international trade.
4. Where modifications to the contents or structure of the relevant international standards were necessary in developing a Party's national standards, that Party shall, on request of the other Party, encourage its standardising body or bodies to provide information about the differences in the contents and structure, and the reason for those differences. Any fees charged for this service shall, apart from the real cost of delivery, be the same for foreign and domestic persons.
5. The Parties shall cooperate with each other to ensure that international standards, guides, and recommendations that are likely to become a basis for technical regulations and conformity assessment procedures do not create unnecessary obstacles to international trade.
6. Each Party shall encourage the standardising body or bodies in its territory to cooperate with the standardising body or bodies of the other Party including:
(a) exchange of information on standards;
(b) exchange of information relating to standard setting procedures; and
(c) cooperation in the work of international standardising bodies in areas of mutual interest.
7. The Parties shali, where appropriate, strengthen coordination and communication with each other in the context of discussion on international standards and related issues in other international fora, such as the WTO TBT Committee.
Article 5.6. Technical Regulations
1. Each Party shall prepare, adopt and apply its technical regulations in accordance with Article 2 of the TBT Agreement and ensure adherence to Article 3 of the TBT Agreement.
2. Each Party shail use relevant international standards to the extent provided in | paragraph 4 of Article 2 of the TBT Agreement, as a basis for its technical | regulations. Where a Party does not use such international standards, or their relevant parts, as a basis for its technical regulations and these may have an effect on trade of the other Party, it shall, upon request of the other Party, explain the reasons therefor. The explanation shall make every effort to address why the standard has been judged inappropriate or ineffective for the objective pursued. Where the Party considers that the technical explanation provided is not satisfactory, both Parties shall enter into technical discussions that will take place as expeditiously as possible to arrive at a mutually satisfactory understanding. |
3. In implementing Article 2.2 of the TBT Agreement, each Party shall consider available alternatives in order to ensure that any proposed technical regulations to be adopted are not more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risk non-fulfilment would create.
4. Each Party shall give positive consideration to accepting as equivalent, technical regulations of the other Party, even if these regulations differ from its own, provided it is satisfied that these regulations adequately fulfil the objectives of its own regulations.
5. In addition to Article 2.7 of the TBT Agreement, a Party shall, on request of the other Party, (2) provide the reasons why it has not accepted, or cannot accept, a technical regulation of that Party as equivalent to its own. The Party to which the request is made should provide its response within a reasonable period of time.
6. Each Party shall uniformly and consistently apply its technical regulations that are prepared and adopted by its central government bodies to its whole territory. For greater certainty, nothing in this paragraph shall be construed to prevent local government bodies from preparing, adopting and applying additional technical regulations in a manner consistent with the provisions of the TBT Agreement.
7. Except where urgent problems of safety, health, environmental protection or national security arise or threaten to arise, Parties shall allow a reasonable interval (3) between the publication of technical regulations and their entry into force in order to provide sufficient time for producers in exporting Parties to adapt their products or methods of production to the requirements of importing Parties
8. At the request of a Party that has an interest in developing a technical regulation similar to a technical regulation of the other Party, such other Party shall endeavour to provide, to the extent practicable, relevant information, including studies or documents, except for confidential information, on which it has relied in its development.
9. Consistent with the obligations of the TBT Agreement, incorporated by Article 5.4 (Incorporation of the TBT Agreement), each Party shall ensure that its technical regulations concerning labels:
(a) accord treatment no less favourable than that accorded to like goods of national origin; and
(b) do not create unnecessary obstacles to trade between the Parties.
Article 5.7. Conformity Assessment Procedures
1. In cases where a positive assurance is required that products conform with technical regulations or standards, and relevant international standards, guides or recommendations issued by international standardising bodies exist or their completion is imminent, Parties shall ensure that central government bodies use them, or the relevant parts of them, as a basis for their conformity assessment procedures, except where, as duly explained upon request, such international standards, guides, or recommendations or relevant parts are inappropriate for the Parties concerned, for, inter alia, such reasons as: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment; fundamental climatic or other geographical factors; fundamental technological or infrastructural problems.
2. Procedures for assessment of conformity by central government bodies of each Party shall be in accordance with Article 5 of the TBT Agreement.
3. Each Party shall ensure, whenever possible, that results of the conformity assessment procedures in the other Party are accepted, even when those procedures differ from its own, provided it is satisfied that those procedures offer an assurance of conformity with applicable technical regulations or standards equivalent to its own procedures.
4. A Party shall, upon request of the other Party, explain its reasons for not accepting the results of a conformity assessment procedure conducted in the other Party. Each Party recognises that, a broad range of mechanisms exists to facilitate the acceptance of the results of conformity assessment procedures conducted in the other Party. Such mechanisms may include:
(a) mutual recognition agreements for the results of conformity assessment procedures conducted by bodies in the Parties;
(b) cooperative (voluntary) arrangements between accreditation bodies or those between conformity assessment bodies in the Parties;
(c) use of accreditation to qualify conformity assessment bodies, including through relevant multilateral agreements or arrangements to recognise the accreditation granted by other Parties;
(d) designation of conformity assessment bodies in the other Party;
(e) unilateral recognition by a Party, of results of conformity assessment procedures conducted in the other Party; and
(f) manufacturer's or supplier's declaration of conformity.
5. Upon reasonable request, the Parties shall exchange information and/or share experiences on the mechanisms referred to in paragraph 4 above, with a view to facilitating the acceptance of the results of conformity assessment procedures.
6. Each Party shall, if it considers appropriate, permit participation of conformity assessment bodies in the other Party, in its conformity assessment procedures under conditions no less favourable than those accorded to conformity assessment bodies in the Party.
7. Where a Party permits participation of its conformity assessment bodies and does not permit participation of conformity assessment bodies in the other Party, in its conformity assessment procedures, it shall, upon written request of that Party, explain the reason for its refusal in writing.
8. The Parties recognise the important role that relevant regional or international organisations can play in cooperation in the area of conformity assessment. In this regard, each Party shall take into consideration the participation status or membership in such organisations of relevant bodies in the Parties in facilitating this cooperation.
9. The Parties agree to encourage cooperation between their relevant conformity assessment bodies in working closer with a view to facilitating the acceptance of conformity assessment results between Parties.
Article 5.8. Cooperation
1. The Parties shall encourage cooperation between their respective organisations responsible for standardisation, conformity assessment, accreditation, and metrology, with a view to facilitate trade.
2. Each Party shall, upon request of the other Party, give positive consideration to proposals for cooperation on matters of mutual interest on standards, technical regulations, and conformity assessment procedures.
3. Such cooperation, which shall be on terms and conditions the Parties mutually determine, may include:
(a) advice or technical assistance/capacity building relating to the development and application of standards, technical regulations and conformity assessment procedures;
(b) cooperation between conformity assessment bodies, both governmental and non-governmental, in the Parties on matters of mutual interest;
(c) cooperation in areas of mutual interest in the work of relevant regional and international bodies relating to the development and application of standards and conformity assessment procedures, such as enhancing participation in the frameworks for mutual recognition developed by relevant regional and international bodies;
(d) enhancing cooperation in the development and improvement of standards, technical regulations, and conformity assessment procedures;
(e) strengthening communication and coordination in the WTO TBT Committee and other relevant international or regional fora;
(f) greater alignment of national standards with relevant international standards, except where inappropriate or ineffective;
(g) facilitation of the greater use of relevant international standards, guides, and recommendations as the basis for technical regulations, and conformity assessment procedures; and
(h) promotion of the acceptance of technical regulations of the other Party as equivalent.
4. Each Party shall, upon request of the other Party, give due consideration for cooperation in areas of mutual interest under this Chapter.
Article 5.9. Information Exchange and Technical Discussions
1. A Party may request in writing that the other Party provide information on any matter arising under this Chapter. A Party receiving a request in writing, in the English language under this paragraph shall provide that information within a reasonable period of time, and if possible, by electronic means.
2. When a Party considers the need to resolve an issue related to trade and provisions under this Chapter, it may request in writing to hold technical discussions with the other Party. The requested Party shall respond as early as possible to such a request.
3. The Parties shall discuss the matter raised within sixty (60) days of the date of the request. if the requesting Party considers that the matter is urgent, it may request that any discussions take place within a shorter time frame. The Parties shall attempt to obtain satisfactory resolution of the matter as expeditiously as possible, recognising that the time required to resolve a matter will depend on a variety of factors, and that it may not be possible to resolve every matter through technical discussions.
4. Requests for information or technical discussions and communications shall be conveyed through the respective contact points designated pursuant to Article 5.11 (Contact Points).
5. For greater certainty, a Party may request technical discussions with the other Party regarding technical regulations or conformity assessment procedures on a level directly below that of the central government that may have a significant effect on trade.
6. Unless the Parties agree otherwise, the discussions and any information exchanged in the course of the discussions shall be confidential and without prejudice to the rights and obligations of the participating Parties under this Agreement, the WTO Agreement or any other agreement to which both Parties are party.
7. The Parties understand and agree that this Article is without prejudice to the rights and obligations of the Parties under Chapter 15 (Dispute Settlement).
Article 5.10. Transparency
1. The Parties recognise the importance of the provisions relating to transparency in the TBT Agreement. In this respect, the Parties shall take into account relevant Decisions and Recommendations adopted by the WTO TBT Committee since 01 January 1995 (G/TBT/1/Rev.13), and any revisions issued in the future by the WTO TBT Committee.
2. Upon request, a Party shall provide, if already available, the full text or summary of its notified technical regulations and conformity assessment procedures in the English language. If unavailable, the Party shall provide a summary stating the requirements of the notified technical regulations and conformity assessment procedures to the requesting Party in the English language, within a reasonable period of time agreed between the Parties and, if possible, within thirty (30) days after receiving the written request. In implementing the preceding sentence, the contents of the summary shall be determined by the responding Party.
3. Each Party shall, on request of the other Party, provide information regarding the objectives of, and rationale for, a technical regulation or conformity assessment procedure that Party has adopted or is proposing to adopt.
4. Each Party shall normally allow sixty (60) days from the date of notification to the WTO in accordance with Articles 2.9 and 5.6 of the TBT Agreement for the other Party to present comments in writing, except where urgent problems of safety, health, environmental protection or national security arise or threaten to arise.
5. Each Party shall take the comments of the other Party into account and shall endeavour to provide responses to these comments upon request.
6. Each Party shall allow persons of the other Party to participate in consultation procedures which are available to the general public for the development of technical regulations, national standards, and conformity assessment procedures by the Party, subject to laws and regulations of a Party, on terms no fess favourable than those accorded to its own persons.
7. When a Party detains at the point of entry an imported consignment, due to non-compliance with a technical regulation or a conformity assessment procedure, it shall notify the importer or its representative, as soon as possible, the reasons for the detention.
8. Unless this Chapter provides otherwise, any information or explanation requested by a Party pursuant to this Chapter shall be provided to the other Party, in print or electronic form, within a reasonable period of time as the Parties may agree, and, if possible, within sixty (60) days. Upon request, the requested Party shall provide such information or explanation in the language or languages as the Parties mutually agree, or whenever possible, in the English language.
Article 5.11. Contact Points
1. Within sixty (60) days of the date of entry into force of this Agreement, each Party shall designate a contact point or contact points responsible for coordinating the implementation of this Chapter.
2. Each Party shall provide the other Party with the name of the designated contact point or contact points and the contact details of the relevant official(s) in that organisation, including telephone, facsimile, email and any other relevant details.
3. Each Party shall notify the other Party promptly of any change in their contact points or any amendments to the details of the relevant official(s).
4. Each Party shall ensure that its contact point or contact points facilitate the exchange of information between the Parties on standards, technical regulations, and conformity assessment procedures, in response to all reasonable requests for such information from a Party.
Article 5.12. Subcommittee on Standards, Technical Regulations and Conformity Assessment Procedures
1. The Parties hereby establish a Subcommittee on Standards, Technical Regulations, and Conformity Assessment Procedures, under the CTG, consisting of representatives of the Parties.
2. The Subcommittee shall meet at such venues and time-period as the Parties mutually determine. Meetings may be conducted in person, or by any other means as the Parties mutually determine.
3. The functions of the Subcommittee may include:
(a) monitoring the implementation and operation of this Chapter;
(b) coordinating cooperation pursuant to Article 5.8 (Cooperation);
(c) facilitating technical discussions;
(d) reporting, where appropriate, its findings to the Committee on Trade in Goods; and
(e) carrying out other functions as may be delegated by the Committee on Trade in Goods.
Article 5.13. Annexes
1. The agreed text of Bilateral Cooperation on Pharmaceutical Products to Chapter 5 on Technical Barriers to Trade Is Placed at Annex 5A.
2. Within one (1) year of the entry into force of this Agreement, both Parties shall enter into discussions to negotiate and finalise an Annex on organic products which will form an integral part to this Chapter.
Chapter 6. CUSTOMS PROCEDURES AND TRADE FACILITATION
Article 6.1. Definitions
For the purposes of this Chapter:
"Customs Administration" means the Federal Authority of Identity, Citizenship, Customs and Port Security for the UAE and the Central Board of Indirect Taxes & Customs for India;
"customs laws and regulations" means laws and regulations concerning the importation, exportation, transit of goods, or any other customs procedures, whether relating to customs duties, taxes or any other charges collected by the Customs Administrations, or to measures for prohibition, restriction, or control enforced by the Customs Administrations;
"customs procedures" means the measures applied by the Customs Administration of a Party to goods and to the means of transport that are subject to its customs laws and regulations;
"persons" means both natural and lega! person, unless the context otherwise requires;
"Customs Mutual Assistance Agreement (CMAA)" means the agreement that further enhances customs cooperation and exchange of information between the Parties to secure and facilitate lawful trade through enhancing assistance in administration of customs matters for proper application of customs law and for the prevention, investigation and combating of customs offences and to ensure the security of the international trade supply chain, signed on 01 April 2012;
"Authorised Economic Operator(s) (AEO)" means, in accordance with the WTO Agreement on Trade Facilitation, set out in Annex 1A to the WTO Agreement (TFA), the program which recognises an operator involved in the international movement of goods in whatever function that has been approved by the national! Customs Administration as complying with the World Customs Organisation (WCO) supply chain security standards;
"Mutual Recognition Arrangement (MRA)" means the arrangement between the Parties that mutually recognises AEO authorisations that have been properly granted by the respective Customs Administrations; and
"TFA commitment(s)" means respective commitments of both Parties under the WTO Agreement on Trade Facilitation, set out in Annex 1A to the WTO Agreement.
Article 6.2. Scope
This Chapter shall apply, in accordance with the Parties' respective national laws, rules and regulations, to customs procedures required for clearance of goods traded between the Parties.
Article 6.3. General Provisions
1. The Parties agree that their customs laws and regulations and customs procedures shall be transparent, non-discriminatory, consistent and avoid unnecessary procedural obstacles to trade.
2. Customs procedures of the Parties shall conform, where possible, to the standards and recommended practices of the WCO.
3. The Customs Administration of each Party shall, to the extent possible, periodically review its customs procedures with a view to their further simplification and development to facilitate bilateral trade.
Article 6.4. Publication and Availability of Information
1. Each Party shall ensure that its laws, regulations, guidelines, procedures, and administrative rulings governing customs matters are promptly published, either on the internet or in print form in the English language, to the extent possible.
2. Each Party shall designate, establish, and maintain one or more enquiry points consistent with its TFA commitments to address reasonable enquiries from interested persons pertaining to customs matters, and shall endeavour to make available publicly through electronic means, information concerning procedures for making such enquiries.
3. Nothing in this Article or in any part of this Agreement shall require any Party to publish law enforcement procedures and internal operational guidelines including those related to conducting risk analysis and targeting methodologies.
4. Each Party shall, to the extent practicable, and in a manner consistent with its domestic law, TFA commitments and legal system, ensure that new or amended laws and regulations of general application related to the movement, release, and clearance of goods, including goods in transit, are published or information on them made otherwise publicly available, as early as possible before their entry into force, so that interested parties have the opportunity to become acquainted with the new or intended laws and regulations. Such information and publications shall be available in the English language, to the extent possible.
5. Changes to duty rates or tariff rates, measures that have a relieving effect, measures the effectiveness of which would be undermined as a result of compliance with paragraph 4, measures applied in urgent circumstances, or minor changes to domestic law and legal system are each excluded from the obligations in paragraphs 4 and 4.
Article 6.5. Risk Management
Each Party shall adopt a risk management approach in its customs activities, based on its risk evaluation criteria concerning goods and supply chain entities, in order to facilitate the clearance of low-risk consignments, while focusing its customs control on high-risk goods.
Article 6.6. Paperless Communications
1. For the purposes of trade facilitation, the Parties shall endeavour to provide an electronic environment that supports business transactions between the Customs Administrations and trading entities.
2. The Parties shall exchange views and information on realising and promoting paperless communications between the Customs Administrations and trading entities.
3. The Customs Administration of each Party, in implementing initiatives which provide for the use of paperless communications, shall take into account the methodologies agreed at the WCO.
Article 6.7. Advance Rulings
1. In accordance with its commitments under the TFA, each Party shall provide for the issuance of an advance ruling, prior to the importation of a good into its territory, to an importer of the good in its territory or to an exporter or producer of the good in the territory of the other Party.
2. For the purposes of paragraph 1, each Party shall issue rulings as to whether the good qualifies as an originating good or to assess the good's tariff classification. Each Party shall issue its determination regarding the origin or classification of the good within a reasonable, time-bound manner from the date of receipt of a complete application for an advance ruling.
3. The importing Party shall apply an advance ruling issued by it under paragraph 1 on the date that the ruling is issued or on a later date specified in the ruling. The ruling shall remain in effect for a reasonable period of time and in accordance with the national procedures on advance rulings unless the Party revokes, modifies, or invalidates the advance ruling, wherein it shall provide written notice to the applicant setting out the relevant facts and the basis for its decision. Where a Party invalidates advance rulings with retroactive effect, it may only do so where the ruling was based on false or misleading information.
4. The advance ruling issued by the Party shall be binding only on the person to whom the ruling is issued.
5. A Party may decline to issue an advance ruling if the facts and circumstances forming the basis of the advance ruling are the subject of a post clearance audit or under review before any governmental agency or an administrative, judicial, or quasi-judicial review or appeal. A Party that declines to issue an advance ruling shall promptly in accordance with national procedures notify, in writing, the person requesting the ruling, setting out the relevant facts and circumstances and the basis for its decision.
6. Each Party shall provide that any modification or revocation of an advance ruling shall be effective on the date on which the modification or revocation is issued, or on such later date as may be specified therein, and shall not be applied to importations of a good that have occurred prior to that date, unless the advance ruling was based on incomplete, incorrect, false, or misleading information.
Article 6.8. Penalties
1. Each Party shall maintain measures imposing criminal, civil or administrative penalties, whether solely or in combination, for violations of the Party's customs laws and regulations or customs procedures.
2. Each Party shall ensure that penalties issued for a breach of its customs laws and regulations or customs procedures are imposed only on the person(s) responsible for the breach under its laws.
3. Each Party shall ensure that the penalty imposed by its Customs Administration is dependent on the facts and circumstances of the case and is commensurate with the degree and severity of the breach.
4. Each Party shall ensure that it maintains measures to avoid conflicts of interest in the assessment and collection of penalties and duties. Each Party will ensure that it maintains measures to avoid creating an incentive for the assessment or collection of a penalty that is inconsistent with paragraph 3 above.
5. Each Party shall ensure that if a penalty is imposed by its Customs Administration for a breach of its customs laws and regulations or customs procedures, an explanation in writing is provided to the person(s) upon whom the penalty is imposed specifying the nature of the breach and the law, regulation or procedure used for determining the penalty amount.
Article 6.9. Release of Goods
1. Each Party shall adopt or maintain simplified customs procedures for the efficient release of goods in order to facilitate trade, consistent with domestic laws and procedures.