(b) for Korea, the Ministry of Trade, Industry and Energy, or its successor.
2. The contact points shall:
(a) facilitate the exchange of information relating to this Section;
(b) coordinate the Committee on Energy and Mineral Resources Cooperation referred to in Article 16.19; and
(c) facilitate any other communications between the Parties on any matter covered by this Section.
Article 16.19. Committee on Energy and Mineral Resources Cooperation
1. The Committee on Energy and Mineral Resources Cooperation established in accordance with Article 21.4 (Committees and Working Groups) shall comprise officials of each Party, including those responsible for energy and mineral resources.
2. The functions of the Committee may include:
(a) reviewing, monitoring and assessing the implementation of this Section;
(b) making recommendations regarding cooperative activities under this Section, in accordance with the strategic priorities of each Party;
(c) discussing any matter arising under this Section; and (d) any other functions as agreed by the Parties.
3. The Parties may, by mutual consent, invite representatives of entities with the necessary expertise relevant to the issues to be discussed to participate in the Committee.
4. The Committee shall, in principle, meet every year or as otherwise agreed. The date, location, and agenda of each meeting shall be jointly decided through consultations between the contact points.
Article 16.20. Resources
1. With the aim of contributing to the fulfilment of the objective of this Section, and recognising that cooperative activities as envisaged in the Section will be able to be implemented effectively only when financed with adequate resources, the Parties shall provide, within the limits of their own capacities and through their own channels, adequate resources to support such cooperative activities.
2. Additional details regarding the provision of resources for the specific cooperative activities that the Committee on Energy and Mineral Resources identifies and develops as part of its annual work program shall be arranged by the Committee on Energy and Mineral Resources.
3. Recognising the importance of maintaining access to stable available resources, the Committee on Energy and Mineral Resources shall consider options for securing joint regular funding that could be utilised in implementing its cooperative activities.
Chapter 17. Labour
Article 17.1. General Principles
1. Each Party affirms its obligations as a member of the International Labour Organization (hereinafter referred to as the "ILO") and its commitments under the Declaration on Fundamental Principles and Rights at Work and its Follow-up (1998) (hereinafter referred to as the "ILO Declaration"). Each Party shall endeavour to adopt or maintain in its laws, regulations, policies and practices the following fundamental principles and rights as stated in the ILO Declaration:
(a) freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour; and
(d) the elimination of discrimination in respect of employment and occupation.
2. Each Party shall respect the other Party's right to establish its own policies and national priorities and to adopt and administer its own labour laws, regulations and practices in accordance with those policies and priorities.
3. Neither Party shall fail to enforce its labour laws and regulations, including:
(a) those it adopts or maintains in accordance with paragraph 1; and
(b) those adopted to implement ILO instruments that it has ratified, through a sustained or recurring course of action or inaction, in a manner affecting trade or investment between the Parties. Each Party retains the right to exercise reasonable discretion with respect to investigatory, prosecutorial, regulatory, and compliance matters in the enforcement of its labour laws and to make bona fide decisions regarding the allocation of resources to enforcement.
4. Each Party shall endeavour to ensure that it does not waive or otherwise derogate from, or offer to waive or otherwise derogate from its labour laws, regulations, policies and practices in a manner that weakens or reduces adherence to the fundamental principles and rights referred to in paragraph 1 as an encouragement for trade with the other Party, or as an encouragement for the establishment, acquisition, expansion, or retention of an investment in its territory.
5. Each Party recognises that it is inappropriate to use its labour laws, regulations, practices or policies for trade protectionist purposes.
Article 17. Procedural Guarantees
Any matter relating to this Chapter which arises under Chapter 19 (Transparency) shall be subject to Article 17.4,
Article 17.3. Institutional Mechanism
Contact Point
1. Each Party shall designate a contact point for labour matters to facilitate communication between the Parties. For the purposes of this paragraph, the contact point shall be, unless otherwise notified:
(a) for Australia, the Department of Employment, or its successor;
(b) for Korea, the Ministry of Employment and Labor, or its successor.
Ad hoc Committee
2. A Party may request the establishment of an ad hoc Committee to discuss any matter related to this Chapter by delivering a written request to the contact point of the other Party and the other Party shall give due consideration to the request. The ad hoc Committee shall comprise appropriate senior officials from the labour ministry and/or other appropriate agencies and ministries of each Party. The ad hoc Committee shall discuss the matter at a time and place agreed to by the Parties.
Article 17.4. Consultations
1. A Party may request consultations with the other Party regarding any matter arising under this Chapter by delivering a written request to the contact point of the other Party. Consultations shall commence promptly after a Party delivers a request for consultations to the contact point of the other Party. The Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter.
2. If consultations under paragraph 1 fail to resolve the matter, and a Party deems that the matter needs further discussion, that Party may request the establishment of an ad hoc Committee under Article 17.3.2 to consider the matter. Where the establishment of such an ad hoc Committee is requested under this paragraph, that ad hoc Committee shall be established without undue delay and shall endeavour to agree on a resolution of the matter.
Article 17.5. Cooperation
1. Recognising the importance of cooperating on trade-related aspects of labour policies in order to achieve the objectives of this Agreement, the Parties commit to enhancing close cooperation through cooperative activities in areas of mutual interest as set out in paragraphs 2 and 3.
2. Areas of cooperation may include, but should not be limited to, labour-management relations, working conditions, occupational safety and health, vocational training and human resources development, and labour statistics.
3. Cooperative activities may include, but should not be limited to, exchanges of people and information, cooperation in relevant regional and international fora, conferences and seminars, development of joint research or collaborative projects, and funding of technical cooperation within the ILO with the aim of raising labour standards in the Asia-Pacific region, taking into account each Party's available resources.
Article 17.6. Dispute Settlement
Neither Party shall have recourse to dispute settlement under this Agreement for any matter arising under this Chapter, including such matters as referred to in Article 17.2.
Chapter 18. Environment
Article 18.1. Levels of Protection
1. Recognising the right of each Party to establish its own levels of environmental protection and its own environmental development priorities, and to adopt or modify accordingly its environmental laws, regulations and policies, each Party shall endeavour to ensure that its laws, regulations and policies provide for and encourage high levels of environmental protection and shall endeavour to continue to improve its respective levels of environmental protection, including through such environmental laws, regulations and policies.
2. Each Party recognises that it is inappropriate to use environmental laws, regulations or policies for trade protectionist purposes.
Article 18.2. Multilateral Environmental Agreements
1. The Parties recognise that multilateral environmental agreements to which both Parties are party play an important role, globally and domestically, in protecting the environment and that their respective implementation of these agreements is critical to achieving the environmental objectives of these agreements. Accordingly, the Parties shall continue to seek means to enhance the mutual supportiveness of multilateral environmental agreements and international trade agreements to which both Parties are party.
2. To this end, the Parties shall consult, as appropriate, with respect to negotiations on trade-related environmental issues of mutual interest.
Article 18.3. Application and Enforcement of Environmental Laws
1. Neither Party shall fail to enforce its environmental laws, regulations and policies, through a sustained or recurring course of action or inaction, in a manner affecting trade or investment between the Parties. Each Party retains the right to exercise reasonable discretion with respect to investigatory, prosecutorial, regulatory, and compliance matters in the enforcement of its environmental laws, regulations and policies and to make bona fide decisions regarding the allocation of resources to enforcement.
2. Each Party recognises that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in its environmental laws, regulations and policies. Accordingly, each Party shall endeavour to ensure that it does not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such laws, regulations and policies in a manner that weakens or reduces the protections afforded in those laws, regulations and policies as an encouragement for trade with the other Party, or as an encouragement for the establishment, acquisition, expansion, or retention of an investment in its territory.
Article 18.4. Trade Favouring Environment
Each Party shall endeavour to facilitate and promote trade and investment in environmental goods and services, including environmental technologies, sustainable renewable energy, and energy efficient goods and services, including through addressing related non-tariff barriers.
Article 18.5. Procedural Guarantees
Any matter relating to this Chapter which arises under Chapter 19 (Transparency) shall be subject to Article 18.7.
Article 18.6. Institutional Mechanism
Contact Point
1. Each Party shall designate a contact point for environmental matters to facilitate communication between the Parties.
Ad hoc Committee
2. A Party may request the establishment of an ad hoc Committee to discuss any matter related to the implementation of this Chapter by delivering a written request to the contact point of the other Party and the other Party shall give due consideration to the request. The ad hoc Committee shall comprise appropriate senior officials from the environmental ministry and/or other appropriate agencies and ministries of each Party. The ad hoc Committee shall discuss the matter at a time and place agreed to by the Parties.
Article 18.7. Consultations
1. A Party may request consultations with the other Party regarding any matter arising under this Chapter by delivering a written request to the contact point of the other Party. Consultations shall commence promptly after a Party delivers a request for consultations to the contact point of the other Party. The Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter.
2. If consultations under paragraph 1 fail to resolve the matter, and a Party deems that the matter needs further discussion, that Party may request the establishment of an ad hoc Committee under Article 18.6.2 to consider the matter. Where the establishment of such an ad hoc Committee is requested under this paragraph, that ad hoc Committee shall be established without undue delay and shall endeavour to agree on a resolution of the matter.
Article 18.8. Cooperation
1. Recognising the importance of cooperating on trade-related aspects of environmental policies in order to achieve the objectives of this Agreement, the Parties commit to enhancing close cooperation through cooperative activities in areas of mutual interest as set out in paragraphs 2 and 3.
2. Areas of cooperation may include, but should not be limited to, trade impact of environmental laws and regulations, trade-related aspects of international climate change regimes, trade-related environment issues and trade-related aspects of biodiversity.
3. Cooperative activities may include, but should not be limited to, exchanges of people and information, sharing information on the environmental effects of trade agreements, cooperation in relevant regional and international fora, conferences and seminars, and development of joint research or collaborative projects.
Article 18.9. Dispute Settlement
Neither Party shall have recourse to dispute settlement under this Agreement for any matter arising under this Chapter, including such matters as referred to in Article 18.5.
Chapter 19. Transparency
Article 19. Publication
1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application respecting any matter covered by this Agreement are promptly published, including on the Internet where feasible, or otherwise made available in such a manner as to enable interested persons and the other Party to become acquainted with them.
2. To the extent possible, each Party shall:
(a) publish in advance any such laws, regulations, procedures and administrative rulings of general application that it proposes to adopt; and
(b) provide interested persons and the other Party a reasonable opportunity to comment on such proposed measures.
Article 19.2. Provision of Information
On request of the other Party, a Party shall promptly provide information and respond to questions pertaining to any actual or proposed measure that the requesting Party considers might affect the operation of this Agreement, regardless of whether the requesting Party has been previously notified of that measure.
Article 19. Administrative Proceedings
1. Each Party shall ensure that all laws, regulations, procedures, and administrative rulings of general application to which this Agreement applies are administered in a consistent, impartial, objective and reasonable manner.
2. With a view to administering in a consistent, impartial, objective and reasonable manner its laws, regulations, procedures and administrative rulings of general application with respect to any matter covered by this Agreement, each Party shall ensure, in its administrative proceedings applying these measures to particular persons, goods or services of the other Party in specific cases that it:
(a) provides wherever possible, persons of the other Party that are directly affected by a proceeding reasonable notice, in accordance with its procedures, when a proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated, and a general description of any issues in controversy;
(b) affords such persons a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when time, the nature of the proceeding and the public interest permit; and
(c) follows its procedures in accordance with its law.
Article 19.4. Review and Appeal
1. Each Party shall establish or maintain judicial, quasi-judicial, or administrative tribunals or procedures for the purposes of the prompt review and, where warranted, correction of final administrative actions regarding matters covered by this Agreement. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.
2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceeding are provided with the right to:
(a) areasonable opportunity to support or defend their respective positions; and
(b) a decision based on the evidence and submissions of record or, where required by the law of the Party, the record compiled by the administrative authority.
3. Each Party shall ensure, subject to appeal or further review as provided in its law, that such decision shall be implemented by, and shall govern the practice of, the office or authority with respect to the administrative action at issue.
Article 19.5. Definitions
For the purposes of this Chapter: administrative ruling of general application means an administrative ruling or interpretation that applies to all persons and fact situations that fall generally within its ambit and that establishes a norm of conduct but does not include:
(a) a determination or ruling made in an administrative or quasi-judicial proceeding that applies to a particular person, good, or service of the other Party in a specific case; or
(b) a ruling that adjudicates with respect to a particular act or practice.
Chapter 20. Dispute Settlement
Article 20.1. Cooperation
The Parties shall endeavour to agree on the interpretation and application of this Agreement, and shall make every attempt through cooperation to arrive at a mutually satisfactory resolution of any matter that might affect its operation.
Article 20.2. Scope
Unless otherwise provided in this Agreement or otherwise agreed by the Parties, this Chapter shall apply with respect to the avoidance or settlement of all disputes between the Parties regarding the implementation, interpretation or application of this Agreement or wherever a Party considers that:
(a) a measure of the other Party is inconsistent with its obligations under this Agreement; (
b) the other Party has otherwise failed to carry out its obligations under this Agreement; or
(c) a benefit the Party could reasonably have expected to accrue to it under Chapter 2 (Trade in Goods), 3 (Rules of Origin and Origin Procedures), 4 (Customs Administration and Trade Facilitation), 7 (Cross-Border Trade in Services), or 12 (Government Procurement), is being nullified or impaired as a result of a measure that is not inconsistent with this Agreement.
Article 20.3. Contact Points
1. Each Party shall designate a contact point to facilitate communications between the Parties with respect to any dispute initiated under this Chapter.
2. Any request, notification, written submission or other document made in accordance with this Chapter shall be delivered to the other Party through its designated contact point.
Article 20.4. Choice of Forum
1. Recourse to the dispute settlement provisions of this Chapter shall be without prejudice to any action in the WTO framework, including dispute settlement action.
2. However, where a Party has, with regard to a particular measure, initiated a dispute settlement proceeding, either under this Agreement or under the WTO Agreement, it shall not initiate a dispute settlement proceeding regarding the same measure in the other forum until the first proceeding has been concluded or terminated by the complaining Party. In addition, where a Party has initiated a dispute settlement proceeding either under this Agreement or under the WTO Agreement to seek redress of an obligation which is identical or substantially identical under the two Agreements, it shall not initiate a dispute settlement proceeding to seek redress of the identical or substantially identical obligation in the other forum until the first proceeding has been concluded or terminated by the complaining Party.
3. Notwithstanding paragraph 2, a Party may initiate a dispute settlement proceeding in the other forum if the first forum selected fails for procedural or jurisdictional reasons to make findings on the claim.
4. For the purposes of paragraphs 2 and 3:
(a) dispute settlement proceedings under the WTO Agreement are deemed to be initiated by a Party's request for the establishment of a panel under Article 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, in Annex 2 of the WTO Agreement (hereinafter referred to as the "DSU") and are deemed to be concluded when the WTO Dispute Settlement Body (hereinafter referred to as the "DSB") adopts the Panel's report, and the Appellate Body's report, as the case may be, under Articles 16 and 17.14 of the DSU; and
(b) dispute settlement proceedings under this Chapter are deemed to be initiated by a Party's request for the establishment of a dispute settlement panel under Article 20.8 and are deemed to be concluded when the panel present a final report to the Parties under Article 20.11.
Article 20.5. Rules of Interpretation
Any panel shall interpret this Agreement in accordance with customary rules of interpretation of public international law, including as reflected in the Vienna Convention on the Law of Treaties. Whete an obligation under this Agreement is identical or substantially identical to an obligation under the WTO Agreement, the panel shall adopt an interpretation which is consistent with any relevant interpretation established in rulings of the DSB. The rulings of the panel cannot add to or diminish the rights and obligations provided for in this Agreement.
Article 20.6. Consultations
1. Either Party may request consultations with the other Party with respect to any matter described in Article 20.2 by delivering written notification to the other Party. The complaining Party shall set out the reasons for the request, including identification of the measure at issue and an indication of the legal basis for the complaint, and any other issue of concern. The other Party shall reply promptly to the request and enter into consultations.
2. Each Party shall:
(a) provide sufficient information in the consultations to enable a full examination of the matter subject to consultations, including how the measure at issue might affect the operation of this Agreement; and
(b) treat any confidential information exchanged in the course of consultations on the same basis as the Party providing the information.
Article 20.7. Referral to the Joint Committee
1. If the Parties fail to resolve a matter within 60 days of the delivery of a request for consultations under Article 20.6, either Party may refer the matter to the Joint Committee by delivering written notification to the other Party.
2. The Joint Committee shall promptly convene and endeavour to resolve the matter.
Article 20.8. Establishment of Panel
1. If the matter has not been resolved within 60 days of the delivery of a notification described in Article 20.7, or within such other period as the Parties may agree, the complaining Party may request the establishment of a panel to consider the matter by delivering written notification to the other Party. The complaining Party shall set out the reasons for the request, including identification of the specific measure at issue and a brief summary of the factual and legal basis for the complaint sufficient to present the problem clearly.
2. Within five days of the date of delivery of the written notification requesting the establishment of a panel as provided in paragraph 1, the Parties shall enter into consultations with a view to reaching agreement on the procedures for selecting a panel. If the Parties are unable to reach agreement on the procedures for selecting the panel within 15 days of the date of delivery of the written notification referring a matter to a panel as provided in paragraph 1, either Party may at any time thereafter notify the other Party that it wishes to use the procedures set forth in subparagraphs (a) and (b). Where such a notification is made, the panel shall be composed in accordance with subparagraphs (a) and (b):
(a) the panel shall have three panellists. Within 30 days of the date of delivery of the written notification requesting the establishment of a panel as provided in paragraph 1, each Party shall appoint one panellist, who may be its national, and provide to the other Party a list of up to three nominees for appointment as the third panellist who shall be the chair of the panel. The Parties shall then consult with each other with the objective of appointing the third panellist, taking into account the lists of nominees; and
(b) if all of the panellists have not been appointed within 45 days of the date of delivery of the written notification requesting the establishment of a panel as provided in paragraph 1, any of the remaining panellists shall be appointed on request of either Party by random drawing from the lists of nominees for appointment as chair or as a regular panellist.
3. Ifa panellist appointed under this Article resigns or becomes unable to act, a successor panellist shall be appointed in the same manner as prescribed for the appointment of the original panellist and shall have all the powers and duties of the original panellist. The work of the panel shall be suspended during the appointment of the successor panellist.
4. The date of establishment of the panel shall be the date the last panellist is appointed in accordance with paragraph 2.
5. Individuals appointed to a panel in accordance with this Article shall:
(a) be chosen strictly on the basis of objectivity, reliability, and sound judgment;
(b) have expertise or experience in law, international trade, other matters covered by this Agreement or the resolution of disputes arising under international trade agreements;
(c) be independent of, and not be affiliated with or take instructions from, either Party;
(d) not have dealt with the matter in any capacity;
(e) disclose to the Parties information which may give rise to justifiable doubts as to their independence or impartiality; and
(f) comply with the code of conduct set out in Annex 20-A.
6. Unless the Parties otherwise agree, the chair shall not be a national of either Party. 1. Where a panel is reconvened under Article 20.13.4, 20.14.5, 20.14.6 or 20.15.1 the reconvened panel shall, where possible, have the same panellists as in the original panel. If the panel cannot be reconvened with all of its original panellists, the procedures for selection of the panellists set out in paragraphs 2 through 6 shall apply.
Article 20.9. Functions of Panels
1. A panel shall make an objective assessment of the matter before it, including an objective assessment of:
(a) the facts of the case;
(b) the applicability of the relevant provisions of this Agreement cited by the Parties; and
(c) whether:
(i) the measure at issue is inconsistent with the obligations of this Agreement;
(ii) a Party has otherwise failed to carry out its obligations under this Agreement; or