1. On the request of a Party for consultations on any matter arising under this Chapter, the Parties shall agree to enter into consultations by notifying the Contact Points listed in Annex 6-B.
2. Consultations will be carried out within 30 days of receiving the notification, unless otherwise agreed by the Parties. Such consultations may be conducted via teleconferencing, videoconferencing, or any other means mutually agreed upon by the Parties.
3. If the consultations have failed to settle the dispute and the matter is subsequently referred to the dispute settlement procedure contained in Chapter 12 (Dispute Settlement), the consultations under this Article shall replace those provided for in Article 12.3.
Article 6.6. Committee on Sanitary and Phytosanitary Measures
1. The Parties hereby agree to establish a Committee on Sanitary and Phytosanitary Measures (hereinafter referred to as "SPS Committee") with the objective of ensuring the implementation of this Chapter. The SPS Committee shall be comprised of representatives of each Party who have responsibility for the development, implementation, and enforcement of sanitary and phytosanitary measures.
2. The Parties shall establish the SPS Committee in a period no later than one year after the date of entry into force of this Agreement through an exchange of letters.
3. The SPS Committee shall seek to enhance cooperation between the Parties' agencies with responsibility for sanitary and phytosanitary measures.
4. For the purposes of the effective implementation and operation of this Chapter, the functions of the SPS Committee shall be to provide a forum for:
(a) enhancing mutual understanding of each Party's sanitary and phytosanitary measures and the regulatory processes that relate to those measures;
(b) discussion on matters related to the development or application of sanitary and phytosanitary measures that affect, or may affect, trade between the Parties;
(c) consulting on issues, relating to the meetings of the WTO SPS Committee, Codex, OIE and IPPC;
(d) coordinating technical cooperation programs on sanitary and phytosanitary measures;
(e) improving bilateral understanding related to specific implementation issues concerning the SPS Agreement;
(f) addressing any bilateral issues arising from the implementation of sanitary and phytosanitary measures between the Parties; and
(g) reviewing progress on addressing sanitary and phytosanitary measures that may arise between the Competent Authorities listed in Annex 6-A.
5. Unless otherwise agreed by the Parties, the SPS Committee shall meet annually.
6. The SPS Committee shall establish its own rules of procedure during its first meeting to guide its operation which may be revised or further developed.
7. The SPS Committee may agree to establish ad hoc technical working groups in accordance with its rules of procedure.
Article 6.7. Competent Authorities and Contact Points
1. The Competent Authorities responsible for the implementation of the measures referred to in this Chapter are listed in Annex 6-A. The Contact Points that have the responsibility relating to communications between the Parties are set out in Annex 6-B.
2. The Parties shall inform each other of any significant changes in the structure, organisation and division of the competency of its Competent Authorities or Contact Points.
Article 6.8. Cooperation
1. The Parties agree to cooperate to facilitate the implementation of this Chapter.
2. The Parties shall explore opportunities for further cooperation and collaboration on sanitary or phytosanitary measures of mutual interest, consistent with the provisions of this Chapter.
Chapter 7. Technical Barriers to Trade
Article 7.1. Definitions
For the purposes of this Chapter:
(a) TBT Agreement means the Agreement on Technical Barriers to Trade, contained in Annex 1A of the WTO Agreement; and
(b) Technical regulations, standards and conformity assessment procedures shall have the meanings assigned to those terms in Annex 1 of the TBT Agreement.
Article 7.2. Objectives
The objectives of this Chapter are to increase and facilitate bilateral trade through the implementation of the TBT Agreement, the elimination of unnecessary technical barriers to trade and the enhancement of bilateral cooperation.
Article 7.3. Scope and Coverage
1. Except as provided in paragraphs 2 and 3, this Chapter applies to all standards, technical regulations, and conformity assessment procedures that may, directly or indirectly, affect trade in goods between the Parties.
2. This Chapter does not apply to sanitary and phytosanitary measures which are covered Chapter 6 (Sanitary and Phytosanitary Measures).
3. This Chapter does not apply to technical specifications prepared by governmental bodies for production or consumption requirements of such bodies.
Article 7.4. Reaffirmation of Agreement on Technical Barriers to Trade
The Parties reaffirm their existing rights and obligations with respect to each other under the TBT Agreement.
Article 7.5. International Standards
1. The Parties shall use international standards, or the relevant parts of international standards, as a basis for their technical regulations and related conformity assessment procedures where relevant international standards exist or their completion is imminent, except when such international standards or their relevant parts are ineffective or inappropriate to fulfil legitimate objectives.
2. For the purposes of paragraph 1, the Parties shall apply the principles set out in 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, adopted by the WTO Committee on Technical Barriers to Trade since 1 January 1995, G/TBT/1/Rev.8, 23 May 2002, Section IX.
Article 7.6. Technical Regulations
1. Consistent with the TBT Agreement, 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 regulations.
2. A Party shall, upon the request of the other Party, explain the reasons why it has not accepted a technical regulation of the other Party as equivalent.
Article 7.7. Trade Facilitation
1. The Parties shall work cooperatively in the fields of standards, technical regulations and conformity assessment procedures with a view to facilitating trade between the Parties.
2. To this end, the Parties shall seek to identify trade facilitating bilateral initiatives regarding standards, technical regulations and conformity assessment procedures that are appropriate for particular issues or sectors. Such initiatives may include:
(a) cooperation on regulatory issues, such as convergence or equivalence of technical regulations and standards;
(b) alignment with international standards;
(c) reliance on a supplier's declaration of conformity;
(d) use of accreditation to qualify conformity assessment bodies; and
(e) cooperation through recognition of conformity assessment procedures.
Article 7.8. Conformity Assessment
1. The Parties recognise that a broad range of mechanisms exist to facilitate the acceptance of the results of conformity assessment procedures, including:
(a) voluntary arrangements between conformity assessment bodies from each Party's territory;
(b) agreements on mutual acceptance of the results of conformity assessment procedures with respect to specified regulations conducted by bodies located in the other Party's territory;
(c) unilateral recognition by one Party of the results of conformity assessments performed in the other Party's territory;
(d) accreditation procedures for qualifying conformity assessment bodies and promotion of the recognition of accreditation and certification bodies under international mutual recognition arrangements;
(e) government designation of conformity assessment bodies;
(f) reliance on a supplier's declaration of conformity, where appropriate; and
(g) use of regional and international multilateral recognition agreements and arrangements which the Parties are members to.
2. The Parties shall exchange information on the mechanisms referred in paragraph 1 with a view to facilitating acceptance of conformity assessment results.
3. Before accepting the results of a conformity assessment procedure, and to enhance confidence in the continued reliability of each other's conformity assessment results, the Parties may consult on matters such as the technical competence of the conformity assessment bodies involved.
4. Where a Party does not accept the results of a conformity assessment procedure conducted in the territory of the other Party, it shall, on request of that other Party, explain the reasons for its decision.
5. Each Party shall accredit, approve, license, or otherwise recognise conformity assessment bodies in the territory of the other Party on terms no less favourable than those it accords to conformity assessment bodies in its territory.
6. Where a Party accredits, approves, licenses, or otherwise recognises a body assessing conformity with a specific technical regulation or standard in its territory and refuses to accredit, approve, license, or otherwise recognise a body assessing conformity with that technical regulation or standard in the territory of the other Party, it shall, on request of that other Party, explain the reasons for its decision.
7. Where a Party declines a request from the other Party to engage in negotiations or conclude an agreement on facilitating recognition in its territory of the results of conformity assessment procedures conducted by bodies in the other Party's territory, it shall, on request of that other Party, explain the reasons for its decision.
Article 7.9. Transparency
1. Each Party shall endeavour to ensure that relevant interested persons of the other Party are allowed to participate in any public consultative process, if organised, on the draft standards, technical regulations and conformity assessment procedures on terms no less favourable than those accorded to its own persons.
2. Each Party shall recommend that non-governmental bodies in its territory observe paragraph 1 in relation to the development of standards and voluntary conformity assessment procedures.
3. The Parties acknowledge the importance of transparency in decision-making, including providing a meaningful opportunity for persons to provide comments on proposed technical regulations and conformity assessment procedures. Where a Party publishes a notice under Article 2.9 or 5.6 of the TBT Agreement, it shall:
(a) include in the notice a statement describing the objective of the proposed technical regulation or conformity assessment procedure and the rationale for the approach the Party is proposing; and
(b) transmit the proposal electronically to the other Party through the enquiry point the Party has established under Article 10 of the TBT Agreement at the same time as it notifies WTO Members of the proposal pursuant to the TBT Agreement. Each Party should allow at least 60 days after it transmits a proposal under subparagraph (b) for the public and the other Party to make comments in writing on the proposal.
4. Where a Party makes a notification under Article 2.10 or 5.7 of the TBT Agreement, it shall at the same time transmit the notification to the other Party electronically through the enquiry point referenced in subparagraph 3(b).
5. On request of the other Party, a Party shall provide the other Party information regarding the objective of, and rationale for, a standard, technical regulation or conformity assessment procedure that the Party has adopted or is proposing to adopt.
Article 7.10. Technical Cooperation
With a view to fulfil the objectives of this Chapter, the Parties shall, on the request of the other Party and where possible, cooperate towards:
(a) exchanging legislation, regulations, rules and other information and periodicals published by the national bodies responsible for technical regulations, standards, conformity assessment, metrology and accreditation;
(b) exchanging general information and publications on conformity assessment, certification bodies, including notified bodies, designation and accreditation of conformity assessment bodies;
(c) providing technical advice, information and assistance on mutually agreed terms and conditions and exchanging experience to enhance the other Party's system for standards, technical regulations and conformity assessment procedures, and related activities;
(d) increasing the information exchange, particularly regarding noncompliance of a product in bilateral trade with relevant technical regulations and conformity assessment procedures of a Party;
(e) examining the compatibility and/or equivalence of their respective technical regulations, standards and conformity assessment procedures;
(f) giving favourable consideration, on request of the other Party, to any sector specific proposal for further cooperation;
(g) promoting and encouraging bilateral cooperation between respective organisations, public and/or private, of the Parties responsible for standardisation, testing, certification, accreditation and metrology;
(h) increasing their bilateral cooperation in the relevant international organisations and fora dealing with the issues covered by this Chapter; and
(i) informing the other Party, as far as possible, about the agreements or programs subscribed at international level in relation to TBT issues.
Article 7.11. Committee on Technical Barriers to Trade
1. The Parties hereby agree to establish a Committee on Technical Barriers to Trade (hereinafter referred to as "TBT Committee"), comprising representatives of each Party.
2. For purposes of this Article, the TBT Committee shall be coordinated by:
(a) in the case of Chile, the General Directorate of International Economic Affairs, Ministry of Foreign Affairs, or its successor; and
(b) in the case of Malaysia, the Department of Standards Malaysia, Ministry of Science, Technology and Innovation.
3. In order to facilitate the communication and ensure the proper functioning of the TBT Committee, the Parties will designate a contact point no later than two months following the date of entry into force of this Agreement.
4. The functions of the TBT Committee shall include:
(a) monitoring the implementation and administration of this Chapter;
(b) promptly addressing any issue that a Party raises related to the development, adoption, application or enforcement of technical regulations and conformity assessment procedures;
(c) enhancing cooperation in the development and improvement of technical regulations and conformity assessment procedures;
(d) exchanging information on standards, technical regulations and conformity assessment procedures, in response to all reasonable requests for such information from a Party;
(e) facilitating cooperation in the area of specific technical regulations by referring enquiries from a Party to the appropriate regulatory authorities;
(f) where appropriate, facilitating sectoral cooperation among governmental and non-governmental conformity assessment bodies in the Parties' territories;
(g) exchanging information on developments in non-governmental, regional, and multilateral fora engaged in activities related to standardisation, technical regulations and conformity assessment procedures;
(h) consulting on any matter arising under this Chapter, upon a Party's request;
(i) reviewing this Chapter in light of any development under the TBT Agreement and developing recommendations for amendments to this Chapter in light of those developments;
(j) reporting to the Joint Committee on the implementation of this Chapter, as it considers appropriate; and
(k) taking any other steps the Parties consider will assist them in implementing the TBT Agreement and in facilitating trade in goods between them.
5. A Party shall, upon request, give favourable consideration to any sector-specific proposal the other Party makes for further cooperation under this Chapter.
6. The TBT Committee shall meet when and where it considers necessary, preferably once a year, with the presence of the representatives of each Party or held via teleconference, videoconference or through other means mutually determined by the Parties. By mutual agreement, ad hoc working groups may be established if necessary.
Article 7.12. Information Exchange
Any information or explanation provided upon request of a Party pursuant to the provisions of this Chapter, shall be provided in print or in electronic form within a reasonable period of time agreed between the Parties.
Chapter 8. Trade Remedies
Article 8.1. Global Safeguards
1. Each Party retains its rights and obligations under Article XIX of GATT 1994 and the WTO Agreement on Safeguards, as they may be amended.
2. This Agreement does not confer any additional rights or obligations on the Parties with regard to actions taken pursuant to Article XIX of GATT 1994 and the WTO Agreement on Safeguards, as they may be amended.
Article 8.2. Anti-dumping and Countervailing Duties
1. Each Party retains its rights and obligations under Article VI of GATT 1994, the WTO Agreement on Implementation of Article VI of the GATT 1994 and the WTO Agreement on Subsidies and Countervailing Measures, as they may be amended, with regard to the application of anti-dumping and countervailing duties.
2. No provision of this Agreement, including the provisions of Chapter 12 (Dispute Settlement), shall be construed as imposing any rights or obligations on the Parties with respect to anti-dumping or countervailing duty measures. Bilateral Safeguard Measures
Article 8.3. Definitions
For the purposes of this Section:
(a) domestic industry means, with respect to an imported good, the producers as a whole of the like or directly competitive good or those producers whose collective production of the like or directly competitive good constitutes a major proportion of the total domestic production of such good;
(b) serious injury means a significant overall impairment in the position of a domestic industry;
(c) substantial cause means a cause which is important and not less than any other cause;
(d) threat of serious injury means serious injury that is clearly imminent and shall be determined on the basis of facts and not merely on allegation, conjecture or remote possibility; and
(e) transition period means the five year period beginning on the date of entry into force of this Agreement, except where the tariff elimination for the good against which the action is taken occurs over a longer period of time, in which case the transition period shall be the period of the staged tariff elimination for that good.
Article 8.4. Imposition of a Bilateral Safeguard Measure
1. A Party may impose a bilateral safeguard measure described in paragraph 2, during the transition period only, if as a result of the reduction or elimination of a customs duty pursuant to this Agreement, an originating good of the other Party is being imported into the Party's territory in such increased quantities, in absolute terms or relative to domestic production, and under such conditions as to constitute a substantial cause of serious injury, or threat thereof, to a domestic industry producing like or directly competitive goods.
2. If the conditions in paragraph 1 are met, a Party may to the extent necessary to prevent or remedy serious injury, or threat thereof, and facilitate adjustment, apply a bilateral safeguard measure, consisting of:
(a) suspending further reduction of any rate of customs duty provided for under this Agreement on the originating good from the date on which the action to apply the bilateral safeguard measure is taken; or
(b) increasing the rate of customs duty on the good to a level not to exceed the lesser of:
(i) the most-favoured-nation applied rate of customs duty in effect on the date on which the action to apply the bilateral safeguard measure is taken; or
(ii) the most-favoured-nation applied rate of customs duty in effect on the day immediately preceding the date of entry into force of this Agreement.
3. Each Party shall not apply bilateral safeguard measure on an originating good imported up to the limit of quota quantities granted under tariff rate quotas applied in accordance with its Schedule in Annex 3.
Article 8.5. Scope and Duration of Safeguard Measures
1. A Party may apply a bilateral safeguard measure, including any extension thereof, for no longer than three years. Regardless of its duration, such measure shall terminate at the end of the transition period. In order to facilitate adjustment in a situation where the expected duration of a bilateral safeguard measure is over one year, the Party maintaining the bilateral safeguard measure shall progressively liberalise the bilateral safeguard measure at regular intervals during the period of application.
2. Neither Party may impose a bilateral safeguard measure more than once on the same good.
3. Nothing in this Chapter shall prevent a Party from applying safeguard measures to an originating good in accordance with:
(a) Article XIX of the GATT 1994 and the WTO Agreement on Safeguards; or
(b) Article 5 of the WTO Agreement on Agriculture.
4. Neither Party may impose a bilateral safeguard measure on a good that is subject to a measure that the Party has imposed pursuant to Article XIX of GATT 1994, the WTO Agreement on Safeguards or the WTO Agreement on Agriculture and neither Party may continue maintaining a bilateral safeguard measure on a good that becomes subject to a measure that the Party imposes pursuant to Article XIX of GATT 1994, the WTO Agreement on Safeguards or the WTO Agreement on Agriculture.
5. Upon the termination of a bilateral safeguard measure, the rate of customs duty shall be the rate which would have been in effect had the measure not been taken.
Article 8.6. Investigation Procedures
1. A Party may impose a bilateral safeguard measure only after an investigation has been carried out by the competent authorities of that Party in accordance with the same procedures as those provided for in Article 3 and Article 4.2 of the WTO Agreement on Safeguards, and to this end Articles 3 and 4 of the WTO Agreement on Safeguards are incorporated into and made a part of this Agreement, mutatis mutandis.
2. The investigation referred to in paragraph 1 shall, as far as possible, be completed within 180 days after being initiated but in no case shall exceed one year.
Article 8.7. Notification
1. A Party shall promptly notify the other Party, in writing, upon:
(a) initiating an investigation under Article 8.6;
(b) taking a decision to apply, extend or modify a bilateral safeguard measure, or to apply a provisional measure; and
(c) taking a decision to progressively liberalise a bilateral safeguard measure previously applied.
2. The Party making the written notice referred to in paragraph 1 shall provide the other Party with all pertinent information, which shall include:
(a) in the written notice referred to in subparagraph 1(a), the reason for the initiation of the investigation, a precise description of an originating good subject to the investigation and its subheading or a more detailed level of the Harmonised System (HS), the period subject to the investigation and the date of initiation of the investigation; and;
(b) in the written notice referred to in subparagraph 1(b), evidence of serious injury or threat thereof caused by the increased imports of the originating good, a precise description of the originating good subject to the proposed bilateral safeguard measure and its subheading or a more detailed level of the Harmonised System (HS), a precise description of the bilateral safeguard measure, the proposed date of its introduction and its expected duration.
3. With reference to the notification referred to in subparagraph 1(b), a Party shall provide to the other Party a copy of the public version of the report of its competent authorities as required under Article 3.1 of the WTO Agreement on Safeguards.