2. A Party shall provide to the other Party a copy of the public version of the report of its competent authorities required under paragraph 1 of Article 5.4 (Investigation) immediately after it is available.
3. In the written notice referred to in paragraph 1(a), the reason for the initiation of the investigation, a precise description of an originating product subject to the investigation and its subheading or more detailed level of the HS, the period subject to the investigation and the date of initiation of the investigation shall be included.
4. In notifying under paragraphs 1(b) and (c), the Party applying or extending a safeguard measure shall also provide evidence of serious injury or threat thereof caused by increased imports of an originating product of the other Party as a result of the reduction or elimination of a customs duty pursuant to this Agreement; a precise description of the product involved and its subheading or more detailed level of the HS; the details of the proposed safeguard measure; and the date of introduction, duration and timetable for progressive liberalisation of the measure, if such timetable is applicable. In the case of an extension of a safeguard measure, evidence that the domestic industry concerned is adjusting shall also be provided. Upon request, the Party applying or extending a safeguard measure shall to the extent possible provide additional information as the other Party may consider necessary.
5. A Party proposing to apply or extend a bilateral safeguard measure shall provide adequate opportunity for prior consultations with the other Party as far in advance of taking any such measure as practicable but not less than thirty days before applying such measures, with a view to reviewing the information arising from the investigation and exchanging views on the measure for meeting the objective set out in Article 5.7 (Compensation).
6. Where a Party applies a provisional measure referred to in Article 5.5 (Provisional Measures), on request of the other Party, consultations shall be initiated immediately after such application.
7. The provisions on notification in this Article shall not require a Party to disclose confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest, or would prejudice the legitimate commercial interests of particular enterprises, public or private.
Article 5.7. Compensation
1. A Party proposing to apply a bilateral safeguard measure shall consult with the Party whose products are subject to the measure in order to mutually agree on appropriate trade liberalizing compensation in the form of concessions having substantially equivalent trade effects.
2. The Party shall provide an opportunity for such consultations no later than thirty days after the application of definitive bilateral safeguard measure. If these consultations do not result in an agreement on trade liberalizing compensation within thirty days, the Party whose products are subject to the safeguard measure may suspend the application of substantially equivalent concessions to the trade of the Party applying the safeguard measure.
3. A Party shall notify the other Party in writing at least thirty days before suspending concessions under paragraph 2.
4. The right of suspension provided for in this Article shall not be exercised for the first two years that the bilateral safeguard measure is in effect, provided that the bilateral safeguard measure has been applied as the result of an absolute increase in imports.
Section B. Anti-Dumping Measures
Article 5.8. Recommendations of the WTO Committee on Anti-Dumping Practices
Each Party may keep in view, in all investigations conducted against goods from the other Party, the recommendations of the WTO Committee on Anti-Dumping Practices.
Article 5.9. Lesser Duty Rule
If a Party takes a decision to impose an anti-dumping duty pursuant to Article 9.1 of the WTO Agreement on Implementation of Article VI of GATT 1994 ("Anti- Dumping Agreement"), it shall apply a duty less than the margin of dumping where such lesser duty would be adequate to remove the injury to the domestic industry.
Article 5.10. Prohibition of Zeroing
When anti-dumping margins are established, assessed or reviewed under Articles 2, 9.3, 9.5, and 11 of the Anti-Dumping Agreement regardless of the comparison bases under Article 2.4.2 of the Anti-Dumping Agreement, all individual margins, whether positive or negative, shall be counted while calculating the dumping margin.
Article 5.11. Exemption from Investigation after Termination
1. In case where the investigating authority of the importing Party determines that the anti-dumping measures against imports from the other Party be terminated as a result of the review under Articles 11.2 and 11.3 of the Anti-Dumping Agreement, no investigation shall be initiated on the same goods during one year after the termination of the anti-dumping duties.
2. Notwithstanding paragraph 1, the investigating authority of the importing Party may initiate an investigation in an exceptional case, provided that the authority is satisfied, on the basis of evidence available with it, that dumping or injury has recurred as a result of withdrawal of the duties and that initiation of such an investigation is necessary to prevent material injury or threat thereof to the domestic industry as a consequence of such dumped imports from the exporting Party.
Article 5.12. Cooperation
The Parties may discuss issues related to the implementation of this Chapter in the Joint Committee established under Article 15.1 (Joint Committee), including on the following:
(a) exchange information and views on laws and regulations relating to trade remedy measures; and
(b) enhance technical cooperation on trade remedies such as holding seminars and training on human resources as mutually agreed by both Parties.
Section C. General Provisions
Article 5.13. Contact Points
Each Party shall designate a contact point for the purposes of this Chapter and provide details of such contact point to the other Party. The Parties shall notify each other promptly of any amendments to the contact details of their contact point.
Chapter 6. SANITARY AND PHYTOSANITARY MEASURES
Article 6.1. Objectives
The objectives of this Chapter are to:
(a) uphold and enhance the implementation of the WTO Agreement on Sanitary and Phytosanitary Agreement ("SPS Agreement");
(b) ensure transparency as regards sanitary and phytosanitary ("SPS") measures applicable to trade, and that SPS measures do not create unjustified barriers to trade;
(c) establish a mechanism for a decision on recognition of equivalence of such measures maintained by a Party consistent with the protection of human, animal and plant life or health in an agreed time-frame;
(d) recognize the health status of plants and animals of the Parties and apply the principle of compartmentalization; and
(e) enhance communication, consultation and cooperation between the Parties on SPS measures.
Article 6.2. Scope and Coverage
This Chapter applies to all SPS measures that may, directly or indirectly, affect trade between the Parties.
Article 6.3. Definitions
For purposes of this Chapter, the definitions in Annex A to the SPS Agreement shall apply.
Article 6.4. Affirmation of the SPS Agreement
The Parties reaffirm their existing rights and obligations with respect to each other under the SPS Agreement.
Article 6.5. International Standards and Harmonization
1. Each Party shall use international standards, guidelines or recommendations as the basis for its SPS measures, in order to harmonize them.
2. Notwithstanding paragraph 1, the Parties may adopt SPS measures that offer a level of protection higher than that which would be achieved by measures based on an international standard, guideline or recommendation, if there is scientific justification. Provided that, in the event a Party adopts a level of protection different from that which would be achieved by measures based on an international standard, guideline or recommendation, it shall, when requested provide the other Party within thirty working days of such request and explanation of its scientific justification, except confidential data for the reasons for such higher standards.
Article 6.6. Equivalence
1. Parties recognise that the application of equivalence is an important tool for trade facilitation, and shall put in place systems for ensuring determination of equivalence in relation to partial or full equivalence of SPS measures.
2. Both Parties agree that an initial list of products or sectors in respect of which each Party would take a decision on equivalence is attached as Annex 6-1 (List of Products for Request for Equivalence). Consultations shall commence within three months from the entry into force of this Agreement and shall be carried out in accordance with the principles and procedures as set out in paragraphs 4 and 5.
3. For other products or sectors not listed in Annex 6-1 (List of Products for Request for Equivalence), either Party may request for equivalence in respect of such products or sectors. Consultations shall commence within three months from the receipt of such request from the other Party and shall be carried out in accordance with the principles and procedures as set out in paragraphs 4 and 5.
4. All consultations carried out pursuant to paragraphs 2 and 3 shall be guided by the following principles and procedures:
(a) equivalence can be determined for an individual measure or groups of measures related to a certain commodity or categories of commodities;
(b) the consideration of equivalence by the importing Party of a request by the exporting Party for recognition of its measures with regards to a specific commodity shall not be a reason to disrupt trade or suspend on-going imports from the exporting Party of the commodity in question;
(c) the exporting Party shall objectively demonstrate to the importing Party that its measures achieve the importing Party's appropriate level of SPS protection. Objective demonstration and assessment in this context shall be based on international standards, guidelines or recommendations; and
(d) the final recognition of equivalence of the relevant measures of the exporting Party rests solely with the importing Party. In each case, the importing Party shall provide to the exporting Party, upon request, explanation excluding confidential data for its determination and decision.
5. Unless otherwise mutually agreed, the importing Party shall, within one hundred and eighty working days from the date of receipt of complete application (1) of the exporting Party's demonstration of equivalence, finalise the assessment of equivalence, except for seasonal crops when it is justifiable to delay the assessment to permit verification of phytosanitary measures during a suitable period of growth of a crop.
6. The importing Party may withdraw or suspend equivalence on the basis of any amendment by one of the Parties of measures affecting equivalence, in accordance with the following provisions:
(a) the exporting Party shall inform the importing Party of any proposal for amendment of its measures for which equivalence of measures is recognised and the likely effect of the proposed measures on the equivalence which has been recognised. Within sixty working days of receipt of this information, the importing Party shall inform the exporting Party whether or not equivalence would continue to be recognized on basis of the proposed measures;
(b) the importing Party shall inform the exporting Party of any proposal for amendment of its measures on which recognition of equivalence has been based and the likely effect of the proposed measures on the equivalence which has been recognized; and
(c) in case of non recognition or withdrawal or suspension of equivalence, the importing Party shall indicate to the exporting Party the required conditions on which the process referred to in paragraph 5 may be reinitiated, provided that the timelines of paragraph 6 shall be adhered to in any process for re-assessment of equivalence.
7. The withdrawal or suspension of equivalence rests solely with the importing Party acting in accordance with its administrative and legislative framework, which shall adhere to the international guidelines, standards and recommendations. The importing Party shall provide to the exporting Party, upon request explanation except confidential data for its determinations and decisions.
Article 6.7. Regionalisation
1. The Parties recognise the concept of regionalisation, zoning and compartmentalisation, as set down in Article 6 of the SPS Agreement, and as elaborated in International Office of Epizootics ("OIE") and International Plant Protection Convention ("IPPC") Standards, which provide, inter alia, for the recognition of pest- or disease-free areas or areas of low pest or disease prevalence where the exporting Party objectively demonstrates to the importing Party that such areas are, and are likely to remain, pest- or disease-free areas or areas of low pest or disease prevalence, respectively.
2. Within this framework, the Parties may mutually recognise regionalisation, zoning and compartmentalisation at various levels, including farms and processing establishments, as having appropriate biosecurity measures, as mutually agreed.
3. The Parties may mutually decide on the principles, procedures or certification provisions applicable to regionalization, zoning and compartmentalization decision.
Article 6.8. Certification
1. The Parties shall ensure compliance with Annex C of the SPS Agreement, as well as the following principles and criteria in relation to certification procedures:
(a) certificates shall be drawn up as to ensure a link between the certificate and the consignment;
(b) both importing and exporting Parties shall introduce such checks and have such control measures taken as are necessary to prevent the issuing of false or misleading certification and the fraudulent production or use of certificates;
(c) the certificates shall be drawn up in the English language.
2. The Sub-Committee constituted under paragraph (c) of Article 15.2 (Sub- Committees) may through decisions by the competent authority adopt model certificates for specific sectors that shall be used as the basis for certification by the Parties. The Sub-Committee may also agree on rules to be followed in case of online certification, withdrawal or replacement of certificates.
Article 6.9. Verification
1. In order to maintain confidence in the effective implementation of the provisions of this Chapter, each Party shall have the right to carry out audit and verification of the procedures of the other Party, which may include an assessment of all or part of the competent authorities' total control programme.
2. The procedures referred to in paragraph 1 shall be carried out in accordance with the following principles:
(a) verifications should be made in co-operation between the auditor and the auditee, where "auditee" is the Party subject to the verification and "auditor" is the Party carrying on the verification;
(b) verifications shall be designed for the purpose of checking the auditee's regulatory control system;
(c) the auditor should prepare a plan that covers the following points:
(i) the subject, depth and scope of the verification;
(ii) the date and place of the verification, along with a timetable up to and including the issue of the final report;
(iii) the language or languages in which the verification will be conducted and the report written, with a provision relating to English translation in the event the report is written in a language other than English; and
(iv) a schedule of meetings with officials and visits to establishments or facilities, as appropriate.
This plan shall be reviewed together with the auditee before commencement of verifications;
(d) the frequency of verifications shall be decided by the importing Party subject to assessment of risk as stipulated under Article 5 of the SPS Agreement and shall be risk-based and reflect performance. Verifications, and the decisions based on them, shall be made in a simple, transparent and consistent manner, and the results and conclusions shall be made available to the other Party; and
(e) the Party carrying out the verification may share the results and conclusions of its verification with non-Parties only with the prior written consent of the other Party.
3. The Sub-Committee under paragraph (c) of Article 15.2 (Sub-Committees) may specify procedures and documentation requirements for verification, taking into account the work of international organizations in this regard.
Article 6.10. Import Checks
1. The Parties shall ensure that their control, inspection and approval procedures are in accordance with Annex C of the SPS Agreement.
2. The import checks applied to imported animals, animal products, plants and plant products traded between the Parties shall be based on the risk associated with such importations. They shall be carried out in a manner that is least trade-restrictive and without undue delay, and shall be based on the following principles:
(a) in carrying out the checks for plant health purposes, the importing Party shall ensure that the plants, plant products and other goods and their packaging are inspected, either in their entirety or by representative sample;
(b) in the event that the checks reveal non-conformity with the relevant standards or requirements, the importing Party shall take measures appropriate to the risk involved;
(c) wherever possible, the importer or his representative shall be given access to the consignment and the opportunity to contribute any relevant information to assist the importing Party in taking a final decision concerning the consignment. Such decision shall be appropriate to the risk. Depending upon the gravity of the SPS risks, the importing Party may return, seize or destroy the consignment;
(d) at the request of the exporting Party, the importing Party shall to the maximum extent ensure that officials of the exporting Party or their representatives are given the opportunity to contribute any relevant information to assist the importing Party in taking a final decision; and
(e) unless there is a clearly identified risk in holding that consignment, the consignments shall not be destroyed without affording an opportunity to the exporter or his representative to take back the consignment.
3. The frequencies of import checks on importations shall be made available on request. The importing Party shall notify the other Party in a timely manner of any amendment to the frequency of import checks in the event of change in the import risk. On request, an explanation regarding amendments shall be given or consultations shall be undertaken.
Article 6.11. Goods In Transit
The Parties reaffirm Article V of GATT 1994 and agree that there shall be freedom of transit for goods in transit. The inspection of goods may be carried out in the event of identifiable SPS risks.
Article 6.12. Transparency
1. Upon the entry into force of this Agreement, the importing Party, upon request, shall inform the exporting Party of its SPS import requirements. This information shall include, as appropriate, the models for the official certificates or attestations, as prescribed by the importing Party.
2. Each Party shall ensure translation of all measures, certificates, reports of any control checks or inspection procedures, or import checks or verification, or any records or other document relevant for the implementation of this Chapter, in English.
Article 6.13. Implementation
The Sub-Committee on Sanitary and Phytosanitary Measures established under Article 15.2 (Sub-Committees) shall consider matters relating to the implementation of this Chapter.
Article 6.14. Technical Consultations
1. Either Party may request technical consultations on issues relating to this Chapter. Unless the Parties mutually determine otherwise, the Parties shall hold technical consultations within thirty days from the request for technical consultations by e-mail, by teleconference, by video-conference, or through any other means, as mutually determined by the Parties.
2. Where a Party has requested technical consultations on any SPS issues, the Parties may mutually agree to establish a technical working group with a view to identify a workable and practical solution. The Parties may, subject to mutual agreement, establish any mechanisms as deemed necessary to resolve any such issues.
3. Technical consultations held pursuant to this Article are without prejudice to the rights and obligations of the Parties under Chapter 14 (Dispute Settlement).
Article 6.15. Cooperation
1. Consistent with the objectives of this Chapter, the Parties shall explore opportunities for further cooperation, collaboration and information exchange of SPS measures of mutual interest. This may include:
(a) improvement of monitoring, implementation and enforcement of SPS measures including training and information events for regulatory personnel. Public and private sector partnerships may be supported for the achievement of these objectives;
(b) establishment of the appropriate arrangements for the sharing of expertise, to address issues of human, animal and plant life or health, as well as training and information events for regulatory personnel and possible exchange of officials;
(c) carry out joint research and share the results of such research in important areas, such as animal and plant disease surveillance, animal and plant pest and disease prevention and control, detection methods for pathogenic micro-organisms in food, surveillance and control of harmful substances and agri-chemical and veterinary medicine residues and other food safety issues, and any other food safety, phytosanitary and zoosanitary issues of mutual interest.
Article 6.16. Exchange of Information and Consultations
1. Each Party shall give prompt and positive consideration to any request from the other Party for consultations on issues relating to the implementation of this Chapter.
2. The Parties agree to enhance their communication and exchange of information on issues within the scope of this Chapter and in particular on ways to facilitate compliance with each other's SPS measures and to eliminate unnecessary obstacles to trade in goods between them.
3. Each Party shall respond to any requests for information from the other Party regarding any SPS measures within thirty days of request for such information.
Chapter 7. TECHNICAL BARRIERS TO TRADE
Article 7.1. Objectives
The objectives of this Chapter are to:
(a) (a) provide a framework and supporting mechanisms to facilitate and increase trade in goods by eliminating and preventing unnecessary barriers to trade while taking into account the legitimate objectives of the Parties, in accordance with Article 2.2 of the WTO Agreement on Technical Barriers to Trade ("TBT Agreement"), and the principle of non-discrimination, within the TBT Agreement;
(b) (b) ensure transparency in standards, technical regulations, and conformity assessment procedures, and also ensure that these do not create unnecessary obstacles to trade and are not more trade restrictive than necessary to fulfill a legitimate objective;
(c) (c) enhance joint cooperation between the Parties, and between regulatory authorities and conformity assessment bodies in the Parties, in order to resolve specific issues related to the development and application of standards, technical regulations and conformity assessment procedures, and establish a mechanism for expeditious recognition of equivalence and mutual recognition and that positive consideration is given to the requests of the exporting Party in this regard by the importing Party, thereby facilitating the conduct of trade in goods;
(d) (d) improve the capacity of the Parties to identify, prevent and eliminate unnecessary obstacles to trade between the Parties as a result of technical regulations, standards and conformity assessment procedures applied by either Party;
(e) (e) increase the capacity of the Parties to ensure compliance with international standards and with each other's technical regulations, conformity assessment procedures and standards; and
(f) (f) provide a mechanism for expeditious resolution of issues, including disputes relating to standards, technical regulations and conformity assessment procedures.
Article 7.2. Scope
1. This Chapter applies to the preparation, adoption and application of standards, technical regulations, and conformity assessment procedures.
2. Notwithstanding paragraph 1, this Chapter does not apply to:
(a) technical specifications prepared by governmental bodies for production or consumption requirements of such bodies; or
(b) sanitary and phytosanitary measures as defined in Annex 1A of the WTO Agreement on the application of Sanitary and Phytosanitary Measures.
Article 7.3. Definitions
For purposes of this Chapter, the definitions of Annex 1 to the TBT Agreement shall apply.
Article 7.4. Affirmation of the TBT Agreement
1. The Parties reaffirm their existing rights and obligations with respect to each other under the TBT Agreement.
2. Each Party shall ensure compliance in the implementation of this Chapter by central government bodies within its territory that are responsible for the preparation, adoption and application of standards, technical regulations and conformity assessment procedures. Each Party shall also take such reasonable measures as may be available to ensure compliance in the implementation of this Chapter, by local government and non-governmental bodies within its territory that are responsible for the preparation, adoption and application of standards, technical regulations and conformity assessment procedures. On request from the other Party, each Party shall make available the details of any measures taken by it in this direction.
Article 7.5. Joint Cooperation
1. The Parties shall strengthen their cooperation in the field of standards, technical regulations, and conformity assessment procedures with a view to increasing the mutual understanding of their respective systems and facilitating access to their respective markets. To this end, the Parties shall establish dialogue at both the horizontal and sectoral levels, as necessary, between the competent authorities and other regulators from their territories.
2. In their bilateral cooperation, the Parties shall work to identify, develop and promote trade facilitating measures which may include, but are not limited to:
(a) promoting regulatory cooperation through measures and steps such as the exchange of information, experience and data, and scientific and technical cooperation with a view to creating technical regulations, standards and conformity assessment procedures that are not more trade restrictive than necessary and making efficient use of regulatory resources;
(b) promoting good regulatory practices on risk management to improve the quality and effectiveness of regulations;
(c) promoting and encouraging participation in international standard setting bodies, and reinforcing the role of international standards as a basis for technical regulations;
(d) promoting and encouraging cooperation between their respective organisations, public or private, responsible for standardisation, testing, certification, inspection, accreditation and other related issues, both bilaterally and in international fora;
(e) exchange information on regulatory concerns, including implementation issues, of the other Party in areas such as:
(i) transparency in the preparation, adoption and application of technical regulations, conformity assessment procedures and standards;
(ii) necessity and proportionality of regulatory measures and related conformity assessment procedures, including the use of suppliers declaration of conformity;
(iii) enforcement of technical regulations and market surveillance activities;
(iv) the necessary technical infrastructure, standardisation, testing, certification and accreditation, to support technical regulations; and
(v) mechanisms and methods for reviewing technical regulations and conformity assessment procedures; and
(f) giving favourable consideration to any sector-specific proposal by the other Party for further cooperation under this Chapter.
Article 7.6. Standards
1. Each Party shall use relevant international standards as a basis for its technical regulations and relevant guides and recommendations issued by an international standardizing body as a basis for its conformity assessment procedures in accordance with Articles 2.4 and 5.4 of the TBT Agreement. Where relevant international standards or relevant international guides and recommendations have not been used as a basis, to explain on request to the other Party, in writing, the reasons why these have been judged inappropriate or ineffective for the aim pursued and, whenever possible, to identify the parts which in substance deviate from relevant international standards.
2. The Parties shall cooperate with each other, where appropriate, in the context of their participation in regional and international standardizing bodies, to ensure that standards developed within such organizations, are trade facilitating and do not create unnecessary obstacles to international trade.