2. Subject to Article 8.3, a Party will not:
(a) weaken or reduce the level of environmental protection provided by its laws, regulations or standards with the sole intention to encourage investment from another Party or to seek or enhance a competitive trade advantage of producers or service providers operating in that Party; or
(b) waive or otherwise derogate from, or offer to waive or otherwise derogate from, such laws, regulations or standards in order to encourage investment from another Party or to seek or enhance a competitive trade advantage of producers or service providers operating in that Party.
Article 8.5. Multilateral Environmental Agreements and Environmental Principles
The Parties reaffirm their commitment to the effective implementation in their respective domestic law and practices of the multilateral environmental agreements applicable to them, as well as their adherence to environmental principles reflected in the international instruments referred to in Article 8.1.
Article 8.6. Promotion of Trade and Investment Beneficial to the Environment
1. The Parties will strive to facilitate and promote investment, trade in and dissemination of goods and services beneficial to the environment, including environmental technologies, sustainable renewable energy, energy efficient and eco- labelled goods and services, as well as to address non-tariff trade barriers for such goods and services.
2. The Parties will strive to facilitate and promote investment, trade in and dissemination of goods and services that contribute to sustainable development. (19)
3. The Parties will facilitate as appropriate co-operation between enterprises in relation to goods, services and technologies that contribute to sustainable development and are beneficial to the environment.
Article 8.7. Co-operation In International Fora
The Parties will strive to strengthen their co-operation on trade and environment in appropriate international fora in which they participate.
Article 8.8. Implementation and Consultations
1. The Parties shall designate the administrative entities which shall serve as contact points for the purposes of this Chapter.
2. A Party may through the contact points referred to in paragraph 1 request expert consultations or consultations within the Joint Committee regarding any matter arising under this Chapter. The Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter.
3. Chapter 10 shall not apply to this Chapter.
Article 8.9. Review
The Parties shall, upon request by a Party, review in the Joint Committee progress achieved in pursuing the objectives set out in this Chapter, and consider relevant international developments to identify areas where further action could promote these objectives.
Chapter 9. INSTITUTIONAL PROVISIONS
Article 9.1. Joint Committee
1. The Parties hereby establish the Joint EFTA-Hong Kong, China Committee comprising representatives of each Party. The Parties shall be represented by senior officials delegated by them for this purpose.
2. The Joint Committee shall:
(a) supervise and review the implementation of this Agreement;
(b) keep under review the possibility of further removal of barriers to trade and other restrictive measures concerning trade between the EFTA States and Hong Kong, China;
(c) oversee the further development of this Agreement;
(d) supervise the work of all sub-committees and working groups established under this Agreement;
(e) endeavour to resolve any disagreement that may arise regarding the interpretation or application of this Agreement, without prejudice to the dispute settlement mechanism in accordance with Chapter 10; and
(f) consider any other matter that may affect the operation of this Agreement.
3. The Joint Committee may decide to set up such sub-committees and working groups as it considers necessary to assist it in accomplishing its tasks. Except where otherwise provided for in this Agreement, the sub-committees and working groups shall work under a mandate established by the Joint Committee.
4. The Joint Committee shall take decisions as provided for in this Agreement, and may make recommendations, by consensus.
5. The Joint Committee shall meet within one year from the entry into force of this Agreement. Thereafter, it shall meet whenever necessary but normally every two years. Its meetings shall be chaired jointly by a representative of the EFTA States and a representative of Hong Kong, China. The Joint Committee shall establish its rules of procedure.
6. Each Party may request at any time, through a notice in writing to the other Parties, that a special meeting of the Joint Committee be held. Such a meeting shall take place within 30 days from the date of receipt of the request, unless the Parties agree otherwise.
7. The Joint Committee shall consider proposals for amendments to this Agreement submitted by any Party. The Joint Committee may decide to amend the Annexes and Appendices to this Agreement, and subject to paragraph 8, it may set forth the date on which such a decision shall enter into force. Amendments to other parts of this Agreement shall be accepted and enter into force in accordance with Article 11.5.
8. If a representative of a Party in the Joint Committee has accepted a decision relating to the amendment to an Annex or Appendix in accordance with paragraph 7 subject to the fulfilment of its domestic legal requirements, the decision shall enter into force on the date that the last Party notifies that its internal requirements have been fulfilled, unless the decision itself specifies a later date. The Joint Committee may decide that the decision shall enter into force for those Parties that have fulfilled their internal requirements, provided that Hong Kong, China is one of those Parties.
Chapter 10. DISPUTE SETTLEMENT
Article 10.1. Scope and Coverage
1. The provisions of this Chapter shall apply to the settlement of any disputes, including through consultations, concerning the interpretation or application of this Agreement.
2. Disputes regarding the same matter arising under both this Agreement and the WTO Agreement may be settled in either forum at the discretion of the complaining Party (20). The forum thus selected shall be used to the exclusion of the other.
3. For the purposes of paragraph 2, dispute settlement procedures under the WTO Agreement are deemed to be selected by a Partyâs request for the establishment of a panel under Article 6 of the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes, whereas dispute settlement procedures under this Agreement are deemed to be selected upon a request for arbitration pursuant to paragraph 1 of Article 10.4.
4. Before a Party initiates dispute settlement proceedings under the WTO Agreement against another Party, that Party shall notify in writing all other Parties of its intention.
Article 10.2. Good Offices, Conciliation or Mediation
1. Good offices, conciliation and mediation are procedures that are undertaken voluntarily if the Parties so agree. They may begin and be terminated at any time. They may continue while proceedings of an arbitration panel established in accordance with this Chapter are in progress.
2. Proceedings involving good offices, conciliation or mediation shall be confidential and without prejudice to the Parties’ rights in any further proceedings.
Article 10.3. Consultations
1. The Parties shall at all times endeavour to agree on the interpretation and application of this Agreement, and shall make every attempt through co-operation and consultations to reach a mutually satisfactory solution of any matter raised in accordance with this Article.
2. A Party may request in writing consultations with another Party with respect to any matter referred to in paragraph 1 of Article 10.1. The Party making the request shall provide the reasons for the request, including any indication of the legal basis for the complaint. That Party shall at the same time notify the other Parties in writing of the request. The Party to which the request is made shall reply to the request within 10 days from the date of receipt. Consultations shall take place in the Joint Committee, unless the Parties making and receiving the request for consultations agree otherwise.
3. Consultations shall commence within 30 days from the date of receipt of the request for consultations. Consultations on urgent matters, including those on perishable goods, shall commence within 15 days from the date of receipt of the request for consultations. If the Party to which the request is made does not reply within 10 days or does not enter into consultations within 30 days from the date of receipt of the request for consultations, or within 15 days for urgent matters, the Party making the request is entitled to request the establishment of an arbitration panel in accordance with Article 10.4.
4. The Parties to the dispute shall provide sufficient information to enable a full examination of how the measure or other matter is inconsistent with this Agreement and treat any confidential information exchanged in the course of consultations in the same manner as the Party providing the information.
5. The consultations shall be confidential and without prejudice to the rights of the Parties in any further proceedings.
6. The Parties to the dispute shall inform the other Parties of any mutually agreed resolution of the matter.
Article 10.4. Establishment of Arbitration Panel
1. If the consultations referred to in Article 10.3 fail to settle a dispute within 60 days, or 30 days in relation to urgent matters, including those on perishable goods, from the date of receipt of the request for consultations by the Party complained against, the complaining Party may request the establishment of an arbitration panel by means of a written request to the Party complained against. A copy of this request shall be communicated to the other Parties so that they may determine whether to participate in the arbitration process.
2. The request for the establishment of an arbitration panel shall identify the specific measure or other matter at issue and provide a brief summary of the legal and factual basis of the complaint.
3. Unless the Parties to the dispute otherwise agree within 20 days from the date of receipt of the request for the establishment of the arbitration panel, the terms of reference for the arbitration panel shall be:
"To examine, in the light of the relevant provisions of this Agreement, the matter referred to in the request for the establishment of an arbitration panel pursuant to Article 10.4 and to make findings of law and fact together with the reasons, as well as recommendations, if any, for the resolution of the dispute and the implementation of the ruling."
4. Where more than one Party requests the establishment of an arbitration panel relating to the same matter or where the request involves more than one Party complained against, and whenever feasible, a single arbitration panel should be established to examine complaints relating to the same matter.
5. A Party which is not a Party to the dispute shall be entitled, on delivery of a written notice to the Parties to the dispute and the arbitration panel, to make written submissions to the arbitration panel, receive written submissions, including annexes, from the Parties to the dispute, attend hearings and make oral statements. When delivering such a written notice, that Party shall include an explanation of its particular interest in the dispute.
Article 10.5. Composition of the Arbitration Panel
1. The arbitration panel shall comprise three members.
2. Each Party to the dispute shall appoint a member within 30 days from the date of receipt of the request to establish an arbitration panel.
3. The Parties to the dispute shall appoint by common agreement the third member, who shall chair the arbitration panel, within 45 days from the date of receipt of the request to establish an arbitration panel.
4. The Chair shall not be a national or permanent resident of one of the Parties to the dispute and shall not have his or her usual place of residence in any of the Parties to the dispute.
5. If all the members have not been appointed within 45 days from the date of receipt of the request to establish an arbitration panel, the President of the International Court of Justice should, at the request of either Party to the dispute, make the necessary appointments within 30 days from the date of receipt of the request to the President of the International Court of Justice. If the President of the International Court of Justice is a national or permanent resident of one of the Parties to the dispute, or is unable to act, the Vice-President or the next most senior Member who is not a national or permanent resident of one of the Parties to the dispute should make the appointment within 30 days from the date of receipt of the request.
6. For the purpose of paragraph 2, where there are multiple Parties as the complaining Party or as the Party complained against, unless they have agreed to another method of appointment of members, the multiple Parties shall jointly appoint a member.
7. All members shall:
(a) have expertise or experience in law, international trade, other matters covered by this Agreement, or the resolution of disputes arising under international trade agreements;
(b) be chosen strictly on the basis of objectivity, reliability, and sound judgment;
(c) be independent of, and not be affiliated with or take instructions from, any Party;
(d) not have dealt with the matter under dispute in any capacity; and
(e) serve in their individual capacities and not as government representatives or representatives of any organisation.
8. The date of establishment of the arbitration panel shall be the date on which the Chair is appointed.
9. Any member may be challenged if circumstances give rise to justifiable doubts as to the member's compliance with this Chapter or the Model Rules of Procedures referred to in paragraph 1 of Article 10.6. A Party to the dispute who intends to make a challenge shall send a notice of its challenge to the other Party to the dispute, the member being challenged and the other members within 30 days after the appointment or after the circumstances became known. The notification shall be in writing and shall state the reasons for the challenge. If the other Party to the dispute does not agree to the challenge or the challenged members does not withdraw, the decision on the challenge should be made by the President of the International Court of Justice within 30 days from the date of receipt of the request. If the President of the International Court of Justice is a national or permanent resident of one of the Parties to the dispute, or is unable to act, the decision on the challenge should be made by the Vice-President or the next most senior Member who is not a national or permanent resident of one of the Parties to the dispute within 30 days from the date of receipt of the request.
10. If a member appointed under this Article resigns or becomes unable to act, a successor shall be appointed, within 21 days from the date a written notice is received by the Parties to the dispute of the need for a successor, in the same manner as prescribed for the appointment of the original member. The successor shall have all the powers and duties of the original member. The work of the arbitration panel shall be suspended pending appointment of the successor.
Article 10.6. Procedures of the Arbitration Panel
1. Unless otherwise specified in this Agreement or agreed between the Parties to the dispute, the procedures of the arbitration panel shall be governed by Model Rules of Procedures which shall be adopted by the Joint Committee within one year from the date of entry into force of this Agreement.
2. The arbitration panel shall examine the matter referred to it in the request for the establishment of an arbitration panel in light of the relevant provisions of this Agreement interpreted in accordance with rules of interpretation of public international law.
3. Unless the Parties to the dispute agree otherwise, the arbitration panel shall decide on the place of the hearings. The hearings of the arbitration panel shall be open to the public, unless the Parties to the dispute agree otherwise.
4. Decisions of the arbitration panel shall be taken by a majority of the members. Any member may furnish separate opinions on matters not unanimously agreed. The arbitration panel shall not disclose which members are associated with majority or minority opinions.
5. The arbitration panel may, at the request of any Party to the dispute, allow one or more Parties to be joined in the arbitration as a Party to the dispute, unless the arbitration panel finds, after giving all Parties, including the Party to be joined, the opportunity to be heard, that joinder should not be permitted because of prejudice to any of those Parties. The arbitration panel may give a single ruling or several rulings in respect of all Parties so involved in the arbitration.
Article 10.7. Panel Reports
1. The arbitration panel shall normally submit an initial report containing its findings and rulings to the Parties to the dispute within 90 days from the date of establishment of the arbitration panel. In no case should it do so later than five months from this date. A Party to the dispute may submit written comments to the arbitration panel on its initial report within 14 days from the date of receipt of the report. The arbitration panel shall normally present to the Parties to the dispute a final report within 30 days from the date of receipt of the initial report.
2. The final report, as well as any report under Articles 10.9 and 10.10, shall be communicated to the Parties. The reports shall be made public, unless the Parties to the dispute decide otherwise.
3. Any ruling of the arbitration panel under any provision of this Chapter shall be final and binding upon the Parties to the dispute.
Article 10.8. Suspension or Termination of Arbitration Panel Proceedings
1. Where the Parties to the dispute agree, an arbitration panel may suspend its work at any time for a period not exceeding 12 months. If the work of an arbitration panel has been suspended for more than 12 months, the arbitration panel's authority for considering the dispute shall lapse, unless the Parties to the dispute agree otherwise.
2. A complaining Party may withdraw its complaint at any time before the final report has been issued. Such withdrawal shall be without prejudice to its right to introduce a new complaint regarding the same issue at a later point in time.
3. The Parties to the dispute may agree at any time to terminate the proceedings of an arbitration panel established under this Agreement by jointly notifying in writing the Chair of that arbitration panel.
4. An arbitration panel may, at any stage of the proceedings, prior to release of the final report, propose that the Parties to the dispute seek to settle the dispute amicably.
Article 10.9. Implementation of the Final Panel Report
1. The Party complained against shall promptly comply with the ruling in the final report. If it is impracticable to comply immediately, the Parties to the dispute shall endeavour to agree on a reasonable period of time to do so. In the absence of such agreement within 45 days, from the date of the issuance of the final report, either Party to the dispute may request the original arbitration panel to determine the length of the reasonable period of time, in light of the particular circumstances of the case. The ruling of the arbitration panel shall normally be given within 60 days from the date of receipt of that request.
2. The Party complained against shall, promptly or within the reasonable period of time as agreed or determined pursuant to paragraph 1, notify the other Party to the dispute of the measure adopted in order to comply with the ruling in the final report, and provide a detailed description of how the measure ensures compliance sufficient to allow the other Party to the dispute to assess the measure.
3. In case of disagreement as to the existence or consistency of a measure taken to comply with the ruling in the final report in accordance with paragraph 1, such disagreement shall be decided by the same arbitration panel upon request of either Party to the dispute before compensation can be sought or suspension of benefits can be applied in accordance with Article 10.10. The ruling of the arbitration panel shall normally be given within 90 days from the date of receipt of the request.
Article 10.10. Compensation and Suspension of Benefits
1. If the arbitration panel has found in accordance with paragraph 3 of Article 10.9 that the Party complained against failed to properly comply with the ruling in the final panel report, or the Party complained against has notified the complaining Party that it does not intend to comply with the ruling, that Party shall, if so requested by the complaining Party, enter into consultations with a view to agreeing on a mutually acceptable compensation. If no such agreement has been reached within 20 days from the date of receipt of the request, the complaining Party shall be entitled to suspend the application of benefits granted under this Agreement but only equivalent to those affected by the measure or other matter that the arbitration panel has found to be inconsistent with this Agreement.
2. In considering what benefits to suspend, the complaining Party shall first seek to suspend benefits in the same sector or sectors as that affected by the measure or other matter that the arbitration panel has found to be inconsistent with this Agreement. The complaining Party that considers it is not practicable or effective to suspend benefits in the same sector or sectors may suspend benefits in other sectors.
3. The complaining Party shall notify the Party complained against of the benefits which it intends to suspend, the grounds for such suspension and when suspension will commence, no later than 30 days before the date on which the suspension is due to take effect. Within 15 days from the date of receipt of that notification, the Party complained against may request the original arbitration panel to rule on whether the benefits which the complaining Party intends to suspend are equivalent to those affected by the measure or matter found to be inconsistent with this Agreement, and whether the proposed suspension is in accordance with paragraphs 1 and 2. The ruling of the arbitration panel shall be given within 45 days from the date of receipt of that request. Benefits shall not be suspended until the arbitration panel has given its ruling.
4. Compensation and suspension of benefits shall be temporary measures and shall only be applied by the complaining Party until the measure or other matter found to be inconsistent with this Agreement, has been withdrawn or amended so as to bring it into conformity with this Agreement, or until the Parties to the dispute have resolved the dispute otherwise.
5. At the request of a Party to the dispute, the original arbitration panel shall rule on the conformity with the final report of any implementing measures adopted after the suspension of benefits and, in light of such ruling, whether the suspension of benefits shall be terminated or modified. The ruling of the arbitration panel shall be given within 30 days from the date of receipt of that request.
Article 10.11. Other Provisions
1. Whenever possible, the arbitration panel referred to in Articles 10.9 and 10.10 shall comprise the same members who issued the final report. If a member of the original arbitration panel is unavailable, the appointment of a replacement member shall be conducted in accordance with the selection procedure for the original member.
2. Any time period mentioned in this Chapter may be modified by mutual agreement of the Parties to the dispute.
3. When an arbitration panel considers that it cannot comply with any timeframe imposed on it under this Chapter, it shall inform the Parties to the dispute in writing of the reasons for the delay together with an estimate of the additional time required. Any additional time required should not exceed 30 days unless the Parties to the dispute otherwise agree.
Chapter 11. FINAL PROVISIONS
Article 11.1. Fulfilment of Obligations
The Parties shall take any general or specific measures required to fulfil their obligations under this Agreement.
Article 11.2. Footnotes, Annexes and Appendices
The footnotes, Annexes and Appendices to this Agreement constitute an integral part of this Agreement.
Article 11.3. Agreement on Labour
The Parties shall enhance their dialogue and co-operation on labour matters through the Agreement on Labour between Hong Kong, China and the EFTA States concluded by the Parties separately from but alongside this Agreement.
Article 11.4. Review Relating to Sustainable Development
The Parties will, upon request by a Party, review issues relating to sustainable development in light of international developments in this field.
Article 11.5. Amendments
1. Any Party may submit proposals for amendments to this Agreement to the Joint Committee for consideration and approval.
2. Except for amendments to the Annexes and Appendices made in accordance with paragraph 7 of Article 9.1, amendments to this Agreement shall, after consideration and approval by the Joint Committee, be submitted to the Parties for ratification, acceptance or approval in accordance with their respective domestic legal requirements.
3. Unless otherwise agreed by the Parties, amendments shall enter into force on the first day of the third month following the deposit of the last instrument of ratification, acceptance or approval.
4. The text of the amendments and the instruments of ratification, acceptance or approval shall be deposited with the Depositary.
Article 11.6. Accession
1. Any State becoming a Member of the European Free Trade Association may accede to this Agreement, provided that the Joint Committee approves its accession on terms and conditions to be agreed upon by the Parties. The instrument of accession shall be deposited with the Depositary.
2. In relation to an acceding State, this Agreement shall enter into force on the first day of the third month following the deposit of its instrument of accession, or the approval of the terms of accession by the existing Parties, whichever is later.
Article 11.7. Withdrawal and Expiration
1. Each Party may withdraw from this Agreement by means of a written notification to the Depositary. The withdrawal shall take effect six months after the date on which the notification is received by the Depositary.
2. If Hong Kong, China withdraws, this Agreement shall expire when its withdrawal becomes effective.
3. Any EFTA State which withdraws from the Convention establishing the European Free Trade Association shall ipso facto on the same day as the withdrawal takes effect cease to be a Party to this Agreement. A copy of the notification of withdrawal from the Convention shall promptly be submitted to the other Parties.
Article 11.8. Entry Into Force
1. This Agreement is subject to ratification, acceptance or approval in accordance with the respective domestic legal requirements of the Parties. The instruments of ratification, acceptance or approval shall be deposited with the Depositary.
2. This Agreement shall enter into force on 1 June 2012, in relation to those Parties which have deposited their instruments of ratification, acceptance or approval with the Depositary at least two months before that date, provided that Hong Kong, China is among those Parties.
3. In case this Agreement does not enter into force on 1 June 2012, it shall enter into force on the first day of the third month after at least one EFTA State and Hong Kong, China have deposited their instrument of ratification, acceptance, or approval with the Depositary.
4. In relation to an EFTA State depositing its instrument of ratification, acceptance or approval after this Agreement has entered into force, this Agreement shall enter into force on the first day of the third month following the deposit of its instrument.
5. This Agreement shall not enter into force between an EFTA State and Hong Kong, China, unless the Agreement on Agriculture referred to in paragraph 2 of Article 2.1 between that EFTA State and Hong Kong, China enters into force simultaneously. It shall remain in force as long as such Agreement on Agriculture remains in force between those Parties.
Article 11.9. Depositary
The Government of Norway shall act as depositary.
Conclusion
IN WITNESS WHEREOF the undersigned, being duly authorised thereto, have signed this Agreement.
Done at Schaan, this 21st day of June 2011, in one original in the English language, which shall be deposited with the Depositary, who shall transmit certified copies to the Parties.
For Iceland
For the Hong Kong Special Administrative Region of the People's Republic of China
For the Principality of Liechtenstein
For the Kingdom of Norway
For the Swiss Confederation
Attachments
ANNEX XI. REFERRED TO IN ARTICLE 4.4 INVESTMENT RESERVATIONS
APPENDIX 1: RESERVATIONS BY HONG KONG, CHINA APPENDIX 2: RESERVATIONS BY ICELAND APPENDIX 3: RESERVATIONS BY LIECHTENSTEIN APPENDIX 4: RESERVATIONS BY NORWAY APPENDIX 5: RESERVATIONS BY SWITZERLAND
APPENDIX 1. RESERVATIONS BY HONG KONG, CHINA
Sector: Manufacture and storage of dutiable commodities
Sub-sector: -
Legal source or authority of the measure: Sections 7 & 8A of the Dutiable Commodities Ordinance (Cap. 109) and Regulation 22 of the Dutiable Commodities Regulations (Cap. 109A)
Succinct description of the measure: To apply for a licence for the manufacture or storage of dutiable commodities under the Dutiable Commodities Ordinance (Cap. 109), the applicant has to appoint a responsible person to be held responsible for the running and management of the premises concerned. The responsible person has to be a Hong Kong resident holding a valid Hong Kong Identity Card.
Purpose or motivation of the measure: For effective enforcement of excise control and revenue protection.