1. Each Party shall designate a contact point or points to facilitate communications between the Parties. The contact point or points thus designated shall cover any matter arising under this Agreement, except those for which specific contact points or coordinators are designated under other Chapters.
2. On request of the other Party, a Party's contact point shall identify the office or official responsible for the matter and assist, as necessary, in facilitating communications with the other Party.
Article 21.2. Cooperation
On request of a Party, the Parties shall consult on any matter arising under this Agreement or that may affect the operation of this Agreement, including the interpretation and application of this Agreement.
Article 21.3. Joint Committee
1. The Parties hereby establish a Joint Committee comprising officials of each Party, which shall be co-chaired by the Minister for Trade of Korea and the Minister for Trade of Australia, or their respective designees.
2. The Joint Committee shall:
(a) supervise the implementation of this Agreement;
(b) supervise the work of committees, working groups, and other bodies that are under its auspices referred to in paragraphs 1, 2 and 4 of Annex 21-A; and any other bodies established under this Agreement;
(c) explore ways to enhance further trade and investment between the Parties;
(d) seek to resolve disputes regarding any matter arising under this Agreement in accordance with Article 20.7; and
(e) consider any other matter that may affect the operation of this Agreement.
3. The Joint Committee may:
(a) establish and delegate responsibilities to ad hoc and standing committees, working groups, or other bodies;
(b) consider and decide any amendment or other modification to this Agreement subject to ratification by each Party;
(c) as appropriate, issue interpretations of the provisions of this Agreement;
(d) adopt its own rules of procedure; and
(e) take such other action in the exercise of its functions as the Parties may agree.
4, Unless the Parties otherwise agree, the Joint Committee shall convene within one year of the date of entry into force of this Agreement and then annually for three years and thereafter as mutually determined.
Article 21.4. Committees and Working Groups
1. The committees and working groups listed in paragraphs 1 and 3 of Annex 21-A are hereby established under the auspices of the Joint Committee.
2. The composition, functions and frequency of meetings of the committees or working groups established are stipulated in the relevant Chapters of this Agreement. The committees and working groups shall be co-chaired by relevant officials of the Parties. Meetings of the committees and working groups shall be held at such venues and dates as mutually agreed by the Parties and may be conducted in person, or by any other means as mutually determined by the Parties.
3. The Joint Committee may decide to establish other committees or working groups or other bodies in order to assist it in the performance of its tasks.
4. The committees and working groups under the auspices of the Joint Committee shall inform the Joint Committee of their schedule and agenda sufficiently in advance of their meetings. They shall report to the Joint Committee on their activities at each regular meeting of the Joint Committee. The creation or existence of acommittee, working group or other bodies shall not prevent either Party from bringing any matter directly to the Joint Committee.
5. The Joint Committee may decide to change or undertake the task assigned to a committee, working group or other body, or to dissolve any committee, working group or other body.
6. The Parties may establish ad hoc committees, working groups or other bodies. The composition, functions and frequency of meetings of any ad hoc committees, working groups or other bodies shall be determined by the Parties.
Article 21.5. Decision-making
All decisions of the Joint Committee and all committees, working groups and other bodies established under this Agreement shall be made by mutual consent of the Parties.
ANNEX 21-A. Committees and working groups
1. The Committees established are:
(a) the Committee on Trade in Goods in accordance with Article 2.11 (Committee on Trade in Goods);
(b) the Committee on Outward Processing Zones on the Korean Peninsula in accordance with Annex 3-B;
(c) the Committee on Rules of Origin and Trade Facilitation in accordance with Article 4.12 (Committee on Rules of Origin and Trade Facilitation);
(d) the Committee on Financial Services in accordance with Article 8.16 (Committee on Financial Services);
(e) the Committee on Telecommunications in accordance with Article 9.25 (Committee on Telecommunications);
(f) the Committee on Intellectual Property in accordance with Article 13.12 (Committee on Intellectual Property);
(g) the Committee on Agricultural Cooperation in accordance with Article 16.11 (Committee on Agricultural Cooperation); and
(h) the Committee on Energy and Mineral Resources Cooperation in accordance with Article 16.19 (Committee on Energy and Mineral Resources Cooperation).
2. The ad hoc committees, which may be requested to be established by a Party, are:
(a) the ad hoc Committee on Labour in accordance with Article 17.3.2; and
(b) the ad hoc Committee on Environment in accordance with Article 18.6.2.
3. The Working Group established is:
(a) the Working Group on Professional Services in accordance with paragraph 3 of Annex 7-A (Professional Services).
4. The ad hoc Working Groups, which may be established on request of a Party, are:
(a) the ad hoc Working Group on Technical Barriers to Trade in accordance with Article 5.9.4; and
(b) the ad hoc Committee on Audiovisual Co-production in accordance with Article 16 Anstitutional Mechanism) of Annex 7-B.
Chapter 22. General Provisions and Exceptions
Article 22.1. General Exceptions
1. For the purposes of Chapters 2 (Trade in Goods), 3 (Rules of Origin and Origin Procedures), 4 (Customs Administration and Trade Facilitation), 5 (Technical Barriers to Trade and Sanitary and Phytosanitary Measures) and 16 (Cooperation), Article XX of GATT 1994, including its interpretive notes, is incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XX(b) of GATT 1994 include environmental measures to protect human, animal or plant life or health, and that Article XX(g) of GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources.
2. For the purposes of Chapters 7 (Cross-Border Trade in Services), 9 (Telecommunications), 10 (Movement of Natural Persons) and 15 (Electronic Commerce), Article XIV of GATS, including its footnotes, is incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XIV(b) of GATS include environmental measures to protect human, animal or plant life or health.
3. For the purposes of Chapter 11 (investment), subject to the requirement that such measures are not applied in a manner which would constitute arbitrary or unjustifiable discrimination between investments or between investors, or a disguised restriction on international trade or investment, nothing in this Agreement shall be construed to prevent a Party from adopting or enforcing measures:
(a) necessary to protect human, animal or plant life or health;
(b) necessary to ensure compliance with laws and regulations that are not inconsistent with this Agreement;
(c) imposed for the protection of national treasures of artistic, historic or archaeological value; or
(d) relating to the conservation of living or non-living exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.
The Parties understand that the measures referred to subparagraph (a) include environmental measures to protect human, animal or plant life or health, and that the measures referred to in subparagraph (d) include environmental measures relating to the conservation of living and non-living exhaustible natural resources.
4. Nothing in this Agreement shall prevent a Party from taking actions authorised by the Dispute Settlement Body of the WTO.
Article 22.2. Essential Security
1. Nothing in this Agreement shall be construed:
(a) to require a Party to furnish any information the disclosure of which it considers contrary to its essential security interests;
(b) to prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to fissionable and fusionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials, or relating to the supply of services, as carried on directly or indirectly for the purpose of supplying or provisioning a military establishment; or
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
2. A Party taking action under paragraphs 1(b) and (c) shall, to the extent possible, inform the Joint Committee of measures that have been taken and of their termination.
Article 22.3. Taxation
1. Unless otherwise provided in this Article, nothing in this Agreement shall apply to taxation measures. 2. The following provisions shall apply to taxation measures:
(a) Chapter 2 (Trade in Goods);
(b) Articles 7.2 (National Treatment) and 8.2 (National Treatment);
(c) Articles 7.3 (Most-Favoured-Nation Treatment) and 8.3 (Most-Favoured-Nation Treatment), only where the taxation measure is an indirect tax;
(d) Articles 11.3 (National Treatment) and 11.4 (Most-Favoured-Nation Treatment), only where the taxation measure is an indirect tax; and
(e) Articles 11.9.2 through 11.9.9.
3. Notwithstanding paragraph 2, nothing in the Articles referred to in paragraph 2 shall apply to:
(a) any most-favoured-nation obligation under this Agreement with respect to an advantage accorded by a Party in accordance with a tax convention;
(b) a non-conforming provision of any existing taxation measure;
(c) the continuation or prompt renewal of a non-conforming provision of any existing taxation measure;
(d) an amendment to a non-conforming provision of any existing taxation measure to the extent that the amendment does not decrease its conformity, at the time of the amendment, with any of those Articles;
(e) the adoption or enforcement of any taxation measure aimed at ensuring the equitable or effective imposition or collection of taxes as permitted by GATS Article XIV(d) without regard to the limitation in that Article to direct taxes; or
(f) a provision that conditions the receipt, or continued receipt of an advantage relating to the contributions to, or income of, a pension trust, superannuation fund, or other arrangement to provide pension, superannuation, or similar benefits on a requirement that the Party maintain continuous jurisdiction, regulation, or supervision over such trust, fund, or other arrangement.
4. Article 11.16 (Submission of a Claim to Arbitration) shall apply to a taxation measure alleged to be an expropriation.
5. Article 11.7 (Expropriation and Compensation) shall apply to taxation measures. However, no investor may invoke Article 11.7 as the basis for a claim where it has been determined in accordance with this paragraph that the measure is not an expropriation. An investor that seeks to invoke Article 11.7 with respect to a taxation measure must first refer to the competent authorities, at the time that it gives its notice of intent under Article 11.16.2, the issue of whether that taxation measure is not an expropriation. If the competent authorities do not agree to consider the issue or, having agreed to consider it, fail to agree that the measure is not an expropriation within a period of 180 days of such referral, the investor may submit its claim to arbitration under Article 11.16.3.
6. Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention. In the event of any inconsistency relating to a taxation measure between this Agreement and any tax convention, the latter shall prevail to the extent of the inconsistency. 7. If either Party considers there is any inconsistency relating to a taxation measure between this Agreement and any tax convention, the competent authorities shall immediately consult. For the purposes of this Article, the competent authorities shall include:
(a) for Australia, the Treasury; and
(b) for Korea, the Ministry of Strategy and Finance.
8. For the purposes of this Article, taxation measures shall not include any customs or import duties.
Article 22.4. Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to furnish or allow access to confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest or which would prejudice the legitimate commercial interests of particular enterprises, public or private.
Article 22.5. Confidentiality
Unless otherwise provided in this Agreement, where a Party provides information to the other Party in accordance with this Agreement and designates the information as confidential, the Party receiving the information shall maintain the confidentiality of the information. The information shall be used only for the purposes specified by the Party providing the information. It shall not be disclosed without the specific written permission of the Party providing the information, except where the release or disclosure of information is necessary to comply with the legal requirements of a Party, in which case the Party that has received the information shall notify the other Party before such release or disclosure is made.
Chapter 23. Final Provisions
Article 23.1. Annexes, Appendices and Footnotes
The Annexes, Appendices and footnotes to this Agreement constitute an integral part of this Agreement.
Article 23.2. Entry Into Force
This Agreement shall enter into force 30 days after the date the Parties exchange written notifications certifying that they have completed their respective applicable legal requirements and procedures or on such other date as the Parties may agree.
Article 23.3. Amendments
1. The Parties may agree, in writing, to amend this Agreement. An amendment shall enter into force after the Parties exchange written notifications certifying that they have completed their respective applicable legal requirements and procedures or on such date as the Parties may agree.
2. Unless otherwise provided in this Agreement, if any provision of the WTO Agreement that is incorporated into or referred to in this Agreement is amended, the Parties shall consult on whether to amend this Agreement.
Article 23.4. Termination
1. This Agreement shall terminate 180 days after the date either Party notifies the other Party in writing that it wishes to terminate the Agreement.
2. Within 30 days of the delivery of a notification under paragraph 1, either Party may make a written request to the other Party to enter into consultations regarding whether any provision of this Agreement should terminate on a date later than that provided under paragraph 1. The consultations shall begin no later than 30 days after the Party delivers its request.
3. This Article shall not apply to Annex 7-B.
Article 23.5. Authentic Text
The Korean and English texts of this Agreement are equally authentic.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective Governments, have signed this Agreement.
DONE at Seoul, this 8" day of April, 2014, in duplicate, in the English and Korean languages.
FOR THE GOVERNMENT OF THE REPUBLIC OF KOREA:
FOR THE GOVERNMENT OF AUSTRALIA:
Attachments
Non-Conforming Measures (Chapters 8, 10 and 11)
I. Annex
Explanatory notes
- The Schedule of a Party to this Annex sets out, pursuant to Articles 7.6 (Non-Conforming Measures - Cross-Border Trade in Services) and 11.12 (Non-Conforming Measures - Investment), a Party's existing measures that are not subject to some or all of the obligations imposed by:Article 7.2 (National Treatment - Cross-Border Trade in Services) or 11.3 (National Treatment - Investment);Article 7.3 (Most-Favoured-Nation Treatment - Cross-Border Trade in Services) or 11.4 (Most-Favoured-Nation Treatment - Investment);Article 7.4 (Market Access - Cross-Border Trade in Services);Article 7.5 (Local Presence - Cross-Border Trade in Services);Article 11.9 (Performance Requirements - Investment); orArticle 11.10 (Senior Management and Boards of Directors -Investment).
- Article 7.2 (National Treatment - Cross-Border Trade in Services) or 11.3 (National Treatment - Investment);
- Article 7.3 (Most-Favoured-Nation Treatment - Cross-Border Trade in Services) or 11.4 (Most-Favoured-Nation Treatment - Investment);
- Article 7.4 (Market Access - Cross-Border Trade in Services);
- Article 7.5 (Local Presence - Cross-Border Trade in Services);
- Article 11.9 (Performance Requirements - Investment); or
- Article 11.10 (Senior Management and Boards of Directors -Investment).
- Each Schedule entry sets out the following elements:Sector refers to the sector for which the entry is made;Obligations Concerned specifies the obligation(s) referred to in paragraph 1 that, pursuant to Articles 7.6.1(a) (Non-Conforming Measures - Cross-Border Trade in Services) and 11.12.1(a) (Non-Conforming Measures - Investment), do not apply to the listed measure(s);Level of Government indicates the level of government maintaining the listed measure(s);For Korea, Measures identifies the laws, regulations or other measures for which the entry is made. For Australia, Source of Measure means the laws, regulations or other measures that are the source of the non-conforming measure for which the entry is made. A measure cited in the Measures or Source of Measure element:means the measure as amended, continued or renewed as of the date of entry into force of this Agreement, andincludes any subordinate measure adopted or maintained under the authority of and consistent with the measure;Description, for Australia, sets out the non-conforming measure for which the entry is made; and Description, for Korea, provides commitments, if any, for liberalisation on the date of entry into force of the Agreement, and the remaining non-conforming aspects of the Measures for which the entry is made.
- Sector refers to the sector for which the entry is made;
- Obligations Concerned specifies the obligation(s) referred to in paragraph 1 that, pursuant to Articles 7.6.1(a) (Non-Conforming Measures - Cross-Border Trade in Services) and 11.12.1(a) (Non-Conforming Measures - Investment), do not apply to the listed measure(s);
- Level of Government indicates the level of government maintaining the listed measure(s);
- For Korea, Measures identifies the laws, regulations or other measures for which the entry is made. For Australia, Source of Measure means the laws, regulations or other measures that are the source of the non-conforming measure for which the entry is made. A measure cited in the Measures or Source of Measure element:means the measure as amended, continued or renewed as of the date of entry into force of this Agreement, andincludes any subordinate measure adopted or maintained under the authority of and consistent with the measure;
- means the measure as amended, continued or renewed as of the date of entry into force of this Agreement, and
- includes any subordinate measure adopted or maintained under the authority of and consistent with the measure;
- Description, for Australia, sets out the non-conforming measure for which the entry is made; and Description, for Korea, provides commitments, if any, for liberalisation on the date of entry into force of the Agreement, and the remaining non-conforming aspects of the Measures for which the entry is made.
- In accordance with Article 7.6.1(a) (Non-Conforming Measures - Cross-Border Trade in Services) and 11.12.1(a) (Non-Conforming Measures - Investment), the articles of this Agreement specified in the Obligations Concerned element of an entry do not apply, in the case of Australia, to the non-conforming measure identified in the Description element of that entry or, in the case of Korea, to the law, regulation or other measure identified in the Measures element of that entry.
- Local Presence and National Treatment are separate disciplines and a measure that is only inconsistent with Local Presence (such as residency requirements) need not be reserved against National Treatment.
- Where a Party maintains a measure that requires that a service supplier be a citizen, permanent resident or resident of its territory as a condition to the supply of a service in its territory, a Schedule entry for that measure taken with respect to Article 7.2 (National Treatment - Cross-Border Trade in Services), 7.3 (Most-Favoured-Nation Treatment - Cross-Border Trade in Services) or 7.5 (Local Presence - Cross-Border Trade in Services) shall operate as a Schedule entry with respect to Article 11.3 (National Treatment - Investment), 11.4 (Most-Favoured-Nation Treatment -Investment) or 11.9 (Performance Requirements - Investment) to the extent of that measure.
- For Korea, a "foreign person" means a foreign national or an enterprise organised under the laws of another country.
Schedule of australia
Introductory Note for the Schedule of Australia
Australia reserves the right to maintain and to add to this Schedule any non-conforming measure at the regional level of government that existed at 1 January 2005, but was not listed in this Schedule at the date of entry into force of this Agreement against the following obligations:
- Article 7.2 (National Treatment - Cross-Border Trade in Services) or 11.3 (National Treatment - Investment);
- Article 7.3 (Most-Favoured-Nation Treatment - Cross-Border Trade in Services) or 11.4 (Most-Favoured-Nation Treatment - Investment);
- Article 7.5 (Local Presence - Cross-Border Trade in Services);
- Article 11.9 (Performance Requirements - Investment); or
- Article 11.10 (Senior Management and Boards of Directors -Investment).
All Sectors
Obligations Concerned:
National Treatment (Article 11.3)
Senior Management and Boards of Directors (Article 11.10)
Level of Government:
Central and Regional
Source of Measure:
Australia's foreign investment policy, which includes the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA); Foreign Acquisitions and Takeovers Regulations 1989 (Cth); Financial Sector (Shareholdings) Act 1998 (Cth); and Ministerial Statements.
Land Act 1994 (Qld)
Foreign Ownership of Land Register Act 1988 (Qld)
Description:
Investment
Commonwealth
Notified investments may be refused, subject to interim orders, and/or approved subject to compliance with certain conditions. Investments referred to in (a) through (e) for which no notification is required or received may be subject to orders under Sections 18 through 21 and 21A of the FATA.
A. The following investments may be subject to objections by the Australian Government and may also require notification to the Government (1):
(a) investments by foreign persons (2) of five per cent or more in the media sector, regardless of the value of the investment;
(b) investments by foreign persons in existing (3) Australian businesses, or prescribed corporations, (4) the value of whose assets exceeds $A248 million# in the following sectors:
(i) the telecommunications sector;
(ii) the transport sector, including airports, port facilities, rail infrastructure, international and domestic aviation and shipping services provided either within, or to and from, Australia;
(iii) the supply of training or human resources, or the manufacture or supply of military goods, equipment, or technology, to the Australian or other defence forces;
(iv) the manufacture or supply of goods, equipment or technologies able to be used for a military purpose;
(v) the development, manufacture or supply of, or provision of services relating to, encryption and security technologies and communication systems; and
(vi) the extraction of (or rights to extract) uranium or plutonium, or the operation of nuclear facilities;
(c) investments by foreign persons in existing Australian businesses, or prescribed corporations, in all other sectors, excluding financial sector companies (5), the value of whose total assets exceeds $A1078 million#;
(d) acquisitions by foreign persons of developed non-residential commercial real estate valued at more than $A1078 million#;
(e) direct investments by foreign government investors, irrespective of size;
Notified investments may be refused, subject to interim orders, and/or approved subject to compliance with certain conditions. Investments referred to in (a) through (e) for which no notification is required or received may be subject to orders under Sections 18 through 21 and 21A of the FATA.
B. The acquisition of a stake in an existing financial sector company by a foreign investor, or entry into an arrangement by a foreign investor, that would lead to an unacceptable shareholding situation or to practical control6 of an existing financial sector company, may be refused, or be subject to certain conditions (7).
C. In addition to the measures identified in this entry, other entries in Annex I or Annex II set out additional non-conforming measures imposing specific limits on, or requirements relating to, foreign investment in the following areas:
(a) Telstra;
(b) Commonwealth Serum Laboratories;
(c) Qantas Airways Ltd.;