Title
PACIFIC AGREEMENT ON CLOSER ECONOMIC RELATIONS PLUS
Preamble
The Governments of Australia, the Cook Islands, the Federated States of Micronesia, the Independent and Sovereign Republic of Kiribati (Kiribati), the Republic of Nauru (Nauru), New Zealand, Niue, the Republic of Palau (Palau), the Republic of the Marshall Islands, the Independent State of Samoa (Samoa), Solomon Islands, the Kingdom of Tonga (Tonga), Tuvalu, the Republic of Vanuatu (Vanuatu);
Recognising the unique and close historical, political, developmental, economic, geographic and cultural links that bind the Parties as well as their shared values and interests;
Recognising the significant development relationship among the Parties and seeking to further enhance and complement this relationship with improved trade and investment cooperation;
Desiring to further deepen these ties of friendship and cooperation and bind their economies closer together in order to bring further economic and social benefits and improved living standards of all peoples of the Pacific region;
Recalling the Pacific Agreement on Closer Economic Relations (PACER), done at Nauru on 18 August 2001;
Desiring to act consistently with their respective rights, obligations and undertakings under the Marrakesh Agreement Establishing the World Trade Organization, or other multilateral, regional and bilateral agreements to which they are party;
Confident that this Agreement will strengthen economic partnerships, support sustainable economic development, and serve as an important building block towards regional economic integration;
Taking into account the significant differences in the size of the Parties; the unique and particular vulnerabilities and development challenges of developing country and least- developed country Parties in the region; the need to build their capacities with a view to fostering their enhanced participation in international trade and investment; and that many of the Parties are not Members of the World Trade Organization;
Affirming the desire to foster a stable and predictable environment to progressively remove barriers to trade and investment between them, while taking into account the principles of flexibility and special and differential treatment;
Affirming that their commitment is to make a significant and sustainable contribution to the economic and social development of the Forum Island Country Parties and to assist their gradual integration into the world economy including, inter alia, through the strengthening of their domestic capacity, efficiency and competitiveness;
Mindful of the links between economic development, social development and environmental protection and the important role of development and economic cooperation in promoting sustainable development, the Parties resolve that PACER Plus must be a development tool for the Forum Island Countries to, inter alia, increase their production capacity and exports; support their economic and trade diversification, and competitiveness efforts; attract investment to them; and lead to the creation of jobs;
Cognisant of the role of technical assistance through trade-related assistance mechanisms and other programmes to strengthen the capacity of the Forum Island Countries to effectively participate in the multilateral trading system and improve trade competitiveness;
Reaffirming their commitments to multilateral environmental, labour and sustainable development agreements to which they are a Party;
Sharing a common aspiration to promote high standards of environmental and labour protection and, to uphold these in the context of sustainable development;
Recognising that it is inappropriate to use environmental and labour standards as a disguised means of trade protectionism, or to weaken or fail to enforce them to encourage trade or investment; and
Recognising their right to regulate and their resolve to preserve the flexibility of the Parties to set legislative and regulatory priorities, safeguard public welfare, and protect legitimate public welfare objectives, such as public health, safety, the environment, the conservation of living or non-living exhaustible natural resources, the integrity and stability of the financial system and public morals;
Have agreed as follows:
Body
Chapter 1. Initial Provisions and General Definitions
Article 1. Establishment of the Pacer Plus Free Trade Area
Consistent with Article XXIV of GATT 1994 and Article V of GATS, the Parties hereby establish a free trade area in accordance with the provisions of this Agreement.
Article 2. General Definitions
For the purposes of this Agreement, unless the context otherwise requires:
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 shall not include:
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
A ruling that adjudicates with respect to a particular act or practice;
Agreement means the Pacific Agreement on Closer Economic Relations Plus (PACER Plus);
Agreement on Agriculture means the Agreement on Agriculture, in Annex 1A to the WTO Agreement;
Agreement on Customs Valuation means the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994, in Annex 1A to the WTO Agreement;
Agreement on Import Licensing Procedures means the Agreement on Import Licensing Procedures, in Annex 1A to the WTO Agreement;
Agreement on Safeguards means the Agreement on Safeguards, in Annex 1A to the WTO Agreement;
Agreement on Subsidies and Countervailing Measures means the Agreement on Subsidies and Countervailing Measures, in Annex 1A to the WTO Agreement;
Anti-Dumping Agreement means the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, in Annex 1A to the WTO Agreement;
Commercial samples of negligible value means commercial samples having a value, individually or in the aggregate as shipped, of not more than the amount specified in a Party's laws, regulations or procedures governing temporary admission, or so marked, torn, perforated or otherwise treated that they are unsuitable for sale or use except as commercial samples;
Customs Administration means the official agencies responsible for implementing the provisions of the Chapter on Rules of Origin and Verification Procedures and the Chapter on Customs Procedures;
Customs duty means any duty or a charge of any kind, including any tax or surcharge, imposed in connection with the importation of a good, but does not include any:
Charge equivalent to an internal tax imposed consistently with Article III:2 of GATT 1994, in respect of a like domestic product or in respect of an article from which the imported product has been manufactured or produced in whole or in part;
Anti-dumping or countervailing duty applied consistently with the provisions of Article VI of GATT 1994, the WTO Agreement on Implementation of Article VI of the GATT 1994, and the Agreement on Subsidies and Countervailing Measures; or
Fee or any charge commensurate with the cost of services rendered;
Days means calendar days, including weekends and holidays;
Developed country Party means any Party that is not a Developing Country Party or a Least Developed Country Party;
Developing country Party means a Party that designates itself as a developing country, and includes Least Developed Country Parties unless otherwise specified;
Enterprise means any entity constituted or organised under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, including any corporation, trust, partnership, sole proprietorship, joint venture, association or similar organisation, and a branch of an enterprise;
Enterprise of a Party means an enterprise which is either:
Organised or constituted under the law of that Party, or a branch located in the territory of another Party, which is engaged in substantive business operations in the territory of that Party or any other Party; or
In the case of the supply of a service through commercial presence, owned or controlled by:
Natural persons of that Party; or
An enterprise of that Party identified under subparagraph (a);
Forum Island Countries means the Pacific Island Countries which are Parties to this Agreement and are Members of the Pacific Islands Forum, referred to in this Agreement collectively as the Forum Island Countries and individually as a Forum Island Country;
GATS means the General Agreement on Trade in Services, in Annex 1B to the WTO Agreement;
GATT 1994 means the General Agreement on Tariffs and Trade 1994, in Annex 1A to the WTO Agreement;
Harmonized System or HS means the Harmonized Commodity Description and Coding System established by the International Convention on the Harmonized Description and Coding System signed at Brussels on 14 June 1983, as amended;
IMF Articles of Agreement means the Articles of Agreement of the International Monetary Fund;
Import licensing means an administrative procedure requiring the submission of an application or other documentation (other than that generally required for customs clearance purposes) to the relevant administrative body as a prior condition for importation into the territory of the importing Party;
Joint Committee means the PACER Plus Joint Committee established pursuant to Article 1 of Chapter 12 (Institutional Provisions);
Least Developed Country Party means any Party that is on the United Nations List of Least Developed Countries;
Measure means any measure of a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action or any other form;
Natural person of a Party means a natural person that possesses the nationality or citizenship of, or right of permanent residence, in that Party in accordance with its laws and regulations; (1)
Negotiating Parties means Australia, the Cook Islands, the Federated States of Micronesia, the Independent and Sovereign Republic of Kiribati, the Republic of Nauru, New Zealand, Niue, the Republic of Palau, the Republic of the Marshall Islands, the Independent State of Samoa, Solomon Islands, the Kingdom of Tonga, Tuvalu, the Republic of Vanuatu, referred to in this Agreement collectively as the Negotiating Parties or individually as a Negotiating Party;
Pacific Islands Forum means the Pacific Islands Forum, as referred to in the Agreement Establishing the Pacific Islands Forum Secretariat;
Party means any State, separate customs territory or self-governing entity for which this Agreement is in force;
Printed advertising materials means those goods classified in Chapter 49 of the Harmonized System, including brochures, pamphlets, leaflets, trade catalogues, yearbooks published by trade associations, tourist promotional materials and posters, that are used to promote, publicise, or advertise a good or a service, or are essentially intended to advertise a good or a service, and are supplied free of charge;
Regional trade agreement means an agreement for closer integration between the economies of the constituent parties composed alternatively or jointly of:
A customs union or free-trade area or agreement for the formation of such a union or area consistent with Article XXIV of GATT 1994, the Understanding on the Interpretation of Article XXIV of GATT 1994 and, in the case of a customs union or free-trade area or agreement for the formation of such a union or area exclusively involving developing countries, the GATT Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (Decision of 28 November 1979, L/4903);
An economic integration agreement liberalising trade in services consistent with Article V of GATS;
SPS Agreement means the Agreement on the Application of Sanitary and Phytosanitary Measures, in Annex 1A to the WTO Agreement;
TBT Agreement means the Agreement on Technical Barriers to Trade, in Annex 1A of the WTO Agreement;
WTO means the World Trade Organization;
WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done on 15 April 1994; and
WTO Member means a state, separate customs territory or self-governing entity that is Party to the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh on 15 April 1994.
Chapter 2. TRADE IN GOODS
Article 1. Objectives
The objectives of this Chapter are, with respect to measures affecting goods traded between the Parties, to avoid unnecessary barriers to trade, facilitate and liberalise trade and thereby promote integration between the economies of the Parties.
Article 2. Scope
This Chapter shall apply to all goods traded between the Parties.
Article 3. Commitments on Tariffs
1. Each Party shall not apply to originating goods:
(a) ordinary customs duties that are not specified, or are in excess of levels set forth, in Part I (Commitments on Ordinary Customs Duties) of its Schedule at Annex 2-A; or
(b) duties or charges on or in connection with their importation (other than ordinary customs duties applied in conformity with subparagraph (a) or internal taxes or other charges, anti-dumping or countervailing duties or fees or other charges for services rendered applied in conformity with Articles 6, 7 and 10 respectively) that are not specified in, or are not in conformity with, Part II (Commitments on Other Duties or Charges) of its Schedule at Annex 2-A.
2. With respect to the levels of all duties and charges referred to in paragraph 1, any
advantage granted to any good of any country or territory, other than in respect of a preference in force under a regional trade agreement on the date referred to in Article 8.1 of Chapter 15 (Final Provisions), shall be accorded immediately and unconditionally to all like goods originating in the territories of all other Parties except where:
(a) (i)the advantage granted is accorded pursuant to Decision 36 of Annex F of the WTO Hong Kong Ministerial Declaration of 2005 on Measures in Favour of Least-Developed Countries and related WTO Decisions on duty-free and quota-free access for products originating in Least-Developed Countries; and
(ii) the treatment of such goods pursuant to the Decisions referred to in subparagraph (a)(i) is in conformity with those Decisions;
(b) the advantage granted is in respect of a preference in force pursuant to a regional trade agreement exclusively involving Pacific Island countries and territories; (1) or
(c) the advantage granted is in respect of a preference in force pursuant to a regional trade agreement (2) exclusively involving developing countries to which at least one Party is a party and other parties are non-Parties, where:
(i) each such non-Party accounts for not more than 1 per cent of world merchandise exports; and
(ii) all non-Parties that are party to the regional trade agreement together account for not more than 4 per cent of world merchandise exports;
measured as of the date of entry into force of the regional trade agreement for each such Party and as of the date of accession of a new party to it. (3)
3. Paragraph 2 shall not require such advantage to be accorded in respect of a preference in force or implemented after the date referred to in Article 8.1 of Chapter 15 (Final Provisions) by the Federated States of Micronesia, the Republic of the Marshall Islands or Palau which is extended to the United States of America in respect of:
(a) a regional trade agreement with another non-Party pursuant to the most-favoured- nation clause in such countries’ respective Compacts of Free Association or successor agreements, where the regional trade agreement concerned fulfils the requirements of paragraph 2(b) or 2(c); or
(b) a regional trade agreement established under such countries’ respective Compacts of Free Association or successor agreements.
4. Nothing in this Agreement shall preclude the Parties from negotiating and entering into arrangements collectively for the acceleration or improvement of commitments in their Schedules. Such agreements shall be incorporated into this Agreement in accordance with Article 7 of Chapter 15 (Final Provisions). Accelerated or improved commitments thereunder shall be implemented by those Parties and be extended to all Parties.
5. Two or more Parties may consult with a view to reaching an agreement on the acceleration or improvement of commitments in their Schedules. Such agreements shall be incorporated into this Agreement in accordance with Article 7 of Chapter 15 (Final Provisions). Accelerated or improved commitments thereunder shall be implemented by those Parties and be extended to all Parties.
6. A Party may, at any time, unilaterally accelerate the implementation of commitments in its Schedule. A Party intending to do so shall inform the other Parties in accordance with Article 14.2(a). Such accelerated implementation of commitments shall be extended to all Parties.
Modification or Withdrawal of Concessions
7. If a developing country Party faces unforeseen difficulties in implementing its tariff commitments: (4)
(a) That Party may, with the agreement of all other interested Parties, modify or withdraw a concession contained in its Schedule of Commitments on Tariffs in Annex 2-A.
(b) In order to seek to reach such agreement, the relevant Party shall engage in negotiations with any interested Parties. In such negotiations, the Party proposing to modify or withdraw its concessions shall maintain a level of reciprocal and mutually advantageous concessions no less favourable to the trade of all other interested Parties than that provided for in this Agreement prior to such negotiations.
(c) A negotiated outcome may include compensatory adjustments with respect to other goods or, where the available scope for compensatory adjustments on goods is insufficient, with respect to services or investment.
(d) The mutually agreed outcome of the negotiations, including any compensatory adjustments, shall apply to all the Parties and shall be incorporated into this Agreement in accordance with Article 7 of Chapter 15 (Final Provisions).
8. If a mutually agreed outcome under paragraph 7 cannot be reached within 60 days of the request being made, the Party proposing to modify or withdraw the concession or any interested Party may refer the matter to the Joint Committee. The Joint Committee shall, within 30 days of the referral of the matter to it, determine the level of compensation to be provided to interested Parties and then authorise the developing country Party to modify or withdraw its tariff commitments. The provision of compensation and the modification of tariff preferences by the developing country Party shall be effected at the same time.
9. The compensatory adjustments shall apply to all the Parties and shall be incorporated into this Agreement in accordance with Article 7 of Chapter 15 (Final Provisions).
Article 4. Goods Re-entered after Repair and Alteration
1. No Party shall apply a customs duty to a good, regardless of its origin, that re-enters its territory after that good has been temporarily exported from its territory to the territory of another Party for repair or alteration, regardless of whether such repair or alteration could be performed in its own territory.
2. Notwithstanding paragraph 1, a Party may, in accordance with its relevant legislation, impose a customs duty on the cost of repair or alteration of the good. The duty imposed shall not exceed the customs duty which would be payable if the good was imported for the first time.
3. No Party shall apply a customs duty to a good, regardless of its origin, admitted temporarily from the territory of another Party for repair or alteration.
4. For the purposes of this Article, repair and alteration does not include an operation or process that:
(a) destroys a good’s essential characteristics or creates a new or commercially different good; or
(b) transforms an unfinished good into a finished good.
5. Nothing in paragraph 3 shall be construed to prevent a Party from specifying in its laws or regulations a limit on the duration of temporary entry beyond which the goods concerned become dutiable.
Article 5. Duty-Free Entry of Commercial Samples of Negligible Value and Printed Advertising Material
1. With the exception of tobacco products, the Parties shall grant customs duty-free entry to commercial samples of negligible value and to printed advertising materials imported from the territory of another Party, regardless of their origin, but may require that:
(a) such samples be imported solely for the solicitation of orders for goods, or services provided from the territory, of another Party or a non-Party; or
(b) such advertising materials are imported in packets that each contain no more than one copy of each material and that neither such materials nor packets form part of a larger consignment.
2. Nothing in this Article shall be construed to prevent a Party from requiring under its laws and regulations that a bond be paid on the temporary import of commercial samples that are not of negligible value and that such bond be released upon re-exportation of the commercial samples within a time limit provided for under its legislation.
Article 6. Internal Taxation and Regulation
In respect of internal taxes, other internal charges and laws, regulations and requirements affecting matters within the scope of Article III of GATT 1994, each Party shall accord to the goods of other Parties most-favoured-nation treatment and national treatment in accordance with Articles I and III, including the Interpretative Notes to Article III, of GATT 1994. To these ends, Articles I and III, including the Interpretative Notes to Article III, of GATT 1994 are incorporated into and shall form part of this Agreement, mutatis mutandis.
Article 7. Trade Remedies
Anti-Dumping and Countervailing Measures
1. Nothing in this Agreement shall affect the rights and obligations of WTO Members under Articles VI and XVI of GATT 1994, the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing Measures.
2. When applying anti-dumping or countervailing measures, non-WTO Members shall comply with the provisions of Articles VI and XVI of GATT 1994, the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing Measures.
3. Special regard shall be given by developed country Parties to the special situation of developing country Parties when considering and before making a decision on the application of anti-dumping measures under this Article. A developed country Party considering the application of an anti-dumping duty to a product of a developing country Party shall explore possibilities of constructive remedies before applying such anti-dumping duty where it would affect the essential interests of the developing country Party concerned.
4. Upon entry into force of this Agreement, each Party with legislation containing provisions on anti-dumping or countervailing measures shall notify to the other Parties through Contact Points:
(a) its laws, regulations and administrative procedures relating to anti-dumping or countervailing measures (including inter alia procedures governing the initiation and conduct of investigations by its competent authorities);
(b) which of its authorities are competent to initiate and conduct its anti-dumping and countervailing investigations; and
(c) its domestic procedures governing the initiation and conduct of such investigations.
5. Upon entry into force of this Agreement, each Party without legislation containing provisions on anti-dumping or countervailing measures shall notify to the other Parties through Contact Points that it does not have anti-dumping or countervailing legislation. Thereafter, where any such Party adopts legislation containing provisions on anti-dumping or countervailing measures, upon the adoption of such legislation it shall notify to the other Parties through Contact Points the information required to be notified in paragraphs 4(a), 4(b) and 4(c). This information shall be notified prior to such Party initiating an anti-dumping or countervailing investigation with respect to another Party or Parties.
6. Thereafter, each Party with legislation containing provisions on anti-dumping or countervailing measures shall notify to the other Parties through Contact Points:
(a) any changes in its anti-dumping and countervailing duty laws and regulations and in the administration of such laws and regulations; and
(b) where anti-dumping or countervailing action concerning the products of any Party has been initiated:
(i) any preliminary or final anti-dumping or countervailing determinations;
(ii) any acceptance of undertakings;
(iii) any terminations of duties or investigations; and
(iv) the explanations, findings and conclusions reached in respect of any of the above actions taken.
7. All information notifiable by a Party under paragraphs 5 and 6 shall be published in accordance with Article 13.
Global Safeguard Measures
8. Nothing in this Agreement shall affect the rights and obligations of WTO Members under Article XIX of GATT 1994 and the Agreement on Safeguards.
9. When applying a global safeguards measure, non-WTO Members shall comply with the provisions of Article XIX of GATT 1994 and the Agreement on Safeguards.
10. Upon entry into force of this Agreement, each Party with legislation containing provisions on global safeguards shall notify to the other Parties through Contact Points:
(a) its laws, regulations and administrative procedures relating to safeguards measures (including inter alia procedures governing the initiation and conduct of investigations by its competent authorities); and
(b) its competent authorities;
and shall thereafter notify to the other Parties through Contact Points any modifications made to information notified under subparagraphs (a) and (b).