Article 40 . Sub-Committee on Sanitary and Phytosanitary Measures
1. For the purposes of the effective implementation and operation of this Chapter, a Sub- committee on Sanitary and Phytosanitary Measures (hereinafter referred to in this Article as “the Sub-Committee”) shall be established pursuant to Article 11.
2. The functions of the Sub-Committee shall be to:
(a) exchange information on such matters as occurrences of SPS incidents in the Parties and non-Parties, and change or introduction of SPS- related regulations and standards of the Parties, which may, directly or indirectly, affect trade between Japan and more than one (1) ASEAN Member State which are the Parties;
(b) facilitate cooperation in the area of SPS measures, including capacity building, technical assistance and exchange of experts, subject to the availability of appropriated funds and the applicable laws and regulations of each Party;
(c) undertake science-based consultations to identify and address specific issues that may arise from the application of SPS measures and are shared by Japan and more than one (1) ASEAN Member State which are the Parties;
(d) review the implementation and operation of this Chapter; and
(e) report, where appropriate, its findings to the Joint Committee.
3. The Parties shall coordinate their undertakings with the activities conducted in the bilateral, regional and multilateral context, with the objective of avoiding unnecessary duplication and maximising efficiency of efforts of the Parties in this field.
4. The Sub-Committee shall meet at such venues and times as may be agreed by the Parties.
5. The Sub-Committee shall be:
(a) composed of government officials of the Parties with responsibility for SPS measures; and
(b) co-chaired by an official of the Government of Japan and an official of one of the Governments of the ASEAN Member States which are the Parties.
Article 41. Enquiry Points
Each Party shall designate an enquiry point to answer all reasonable enquiries from another Party regarding SPS measures and, if appropriate, provide the latter with relevant information.
Article 42. Non-application of Chapter 9
The dispute settlement procedures provided for in Chapter 9 shall not apply to this Chapter.
Chapter 5. Standards, Technical Regulations and Conformity Assessment Procedures
Article 43. Objectives
The objectives of this Chapter are to promote trade among the Parties by:
(a) ensuring that standards, technical regulations and conformity assessment procedures do not create unnecessary obstacles to trade;
(b) promoting mutual understanding of the standards, technical regulations and conformity assessment procedures in each Party;
(c) strengthening information exchange and cooperation among the Parties in relation to the preparation, adoption and application of standards, technical regulations and conformity assessment procedures;
(d) strengthening cooperation among the Parties in the work of international bodies related to standardisation and conformity assessments; and
(e) providing a framework to realise these objectives.
Article 44. Scope
1. This Chapter shall apply to standards, technical regulations and conformity assessment procedures as defined in the Agreement on Technical Barriers to Trade in Annex 1A to the WTO Agreement (hereinafter referred to as “TBT Agreement”).
2. This Chapter shall not apply to purchasing specifications prepared by governmental bodies for production or consumption requirements of governmental bodies and sanitary and phytosanitary measures as defined in Annex A of the SPS Agreement.
3. Nothing in this Chapter shall limit the right of a Party to prepare, adopt and apply standards and technical regulations, to the extent necessary, to fulfil a legitimate objective. Such legitimate objectives are, inter alia, national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment. In pursuance of this, each Party retains all authority to interpret its laws, regulations and administrative provisions.
Article 45. Reaffirmation of Rights and Obligations
The Parties reaffirm the rights and obligations relating to standards, technical regulations and conformity assessment procedures under the TBT Agreement among those Parties that are parties to the said Agreement.
Article 46. Cooperation
1. For the purposes of ensuring that standards, technical regulations and conformity assessment procedures do not create unnecessary obstacles to trade in goods among the Parties, the Parties shall, where possible, cooperate in the field of standards, technical regulations and conformity assessment procedures.
2. The forms of cooperation pursuant to paragraph 1 may include the following:
(a) conducting joint studies and holding seminars, in order to enhance mutual understanding of standards, technical regulations and conformity assessment procedures in each Party;
(b) exchanging information on standards, technical regulations and conformity assessment procedures;
(c) developing and implementing joint programmes for building and/or upgrading capacity in the Parties for advancement of activities within the scope of the TBT Agreement;
(d) encouraging the bodies responsible for standards, technical regulations and conformity assessment procedures in each Party to cooperate on matters of mutual interest;
(e) contributing, where appropriate, jointly to the activities related to standards, technical regulations and conformity assessment procedures in international and regional fora; and
(f) jointly identifying work in the field of standards, technical regulations and conformity assessment procedures, where appropriate, to avoid unnecessary obstacle to trade among the Parties.
3. The implementation of this Article shall be subject to the availability of appropriated funds and the applicable laws and regulations of each Party.
Article 47. Enquiry Points
1. Each Party shall designate an enquiry point which shall have the responsibility to coordinate the implementation of this Chapter.
2. Each Party shall provide the other Parties with the name of its designated enquiry point and the contact details of relevant officials in that organisation including information on telephone, facsimile and e-mail and other relevant details.
3. Each Party shall notify the other Parties promptly of any change of its enquiry point or any amendments to the information of the relevant officials.
Article 48. Sub-Committee on Standards, Technical Regulations and Conformity Assessment Procedures
1. For the purposes of the effective implementation and operation of this Chapter, a Sub-Committee on Standards, Technical Regulations and Conformity Assessment Procedures (hereinafter referred to in this Article as “the Sub-Committee”) shall be established pursuant to Article 11.
2. The functions of the Sub-Committee shall be to:
(a) coordinate cooperation pursuant to Article 46;
(b) identify mutually agreed priority sectors for enhanced cooperation, including giving favourable consideration to any proposal made by a Party;
(c) establish work programmes in mutually agreed priority areas to facilitate the acceptance of conformity assessment results and equivalence of technical regulations;
(d) monitor the progress of work programmes;
(e) review the implementation and operation of this Chapter;
(f) facilitate technical consultations;
(g) report, where appropriate, its findings to the Joint Committee; and
(h) carry out other functions as may be delegated by the Joint Committee pursuant to Article 11.
3. The Sub-Committee shall meet at such venues and times as may be agreed by the Parties.
4. The Parties shall coordinate their undertakings with the activities conducted in the bilateral, regional and multilateral context, with the objective of avoiding unnecessary duplication and maximising efficiency of efforts of the Parties in this field.
5. The Sub-Committee shall be:
(a) composed of representatives of the Governments of the Parties; and
(b) co-chaired by an official of the Government of Japan and an official of one of the Governments of the ASEAN Member States, which are the Parties.
Article 49. Non-application of Chapter 9
The dispute settlement procedures provided for in Chapter 9 shall not apply to this Chapter.
Chapter 6. Trade In Services
Article 50. Trade In Services
1. Each Party shall endeavour to, in accordance with its laws, regulations and policies, take further steps towards the expansion of trade in services among or between the Parties consistent with GATS.
2. The Parties shall, with the participation of Japan and all ASEAN Member States, continue to discuss and negotiate provisions for trade in services with a view to exploring measures towards further liberalisation and facilitation of trade in services among Japan and ASEAN Member States and to enhance cooperation in order to improve the efficiency and competitiveness of services and service suppliers of Japan and the ASEAN Member States. For this purpose, a Sub-Committee on Trade in Services, which shall be composed of representatives of the Governments of Japan and all ASEAN Member States, shall be established in accordance with Article 11 within one (1) year from the date of entry into force of this Agreement pursuant to paragraph 1 of Article 79.
3. The results of the negotiations referred to in paragraph 2, if any, shall be incorporated into this Chapter in accordance with Article 77.
Chapter 7. Investment
Article 51. Investment
1. Each Party shall endeavour to, in accordance with its laws, regulations and policies, create and maintain favourable and transparent conditions in the Party for investments of investors of the other Parties.
2. The Parties shall, with the participation of Japan and all ASEAN Member States, continue to discuss and negotiate provisions for investment, with a view to improving the efficiency and competitiveness of the investment environment of Japan and ASEAN Member States through progressive liberalisation, promotion, facilitation and protection of investment. For this purpose, a SubCommittee on Investment, which shall be composed of the representatives of the Governments of Japan and all ASEAN Member States, shall be established in accordance with Article 11 within one (1) year from the date of entry into force of this Agreement pursuant to paragraph 1 of Article 79.
3. The results of the negotiations referred to in paragraph 2, if any, shall be incorporated into this Chapter in accordance with Article 77.
Chapter 8. Economic Cooperation
Article 52. Basic Principles
1. The Parties shall, subject to the availability of resources as well as their respective applicable laws and regulations, promote cooperation under this Agreement for their mutual benefits in order to liberalise and facilitate trade and investment among the Parties and to promote the well-being of the peoples of the Parties, taking into account the different levels of economic development among ASEAN Member States.
2. The Parties shall promote regional and sub-regional development through economic cooperation activities including capacity building, technical assistance, and other such activities as may be mutually agreed upon among the Parties.
Article 53.
Fields of Economic Cooperation
The Parties, on the basis of mutual benefit, shall explore and undertake economic cooperation activities in the following fields:
(a) Trade-Related Procedures;
(b) Business Environment;
(c) Intellectual Property;
(d) Energy;
(e) Information and Communications Technology;
(f) Human Resource Development;
(g) Small and Medium Enterprises;
(h) Tourism and Hospitality;
(i) Transportation and Logistics;
(j) Agriculture, Fisheries and Forestry;
(k) Environment;
(l) Competition Policy; and
(m) Other fields as may be mutually agreed upon among the Parties.
Article 54. Sub-committee on Economic Cooperation
1. For the purposes of the effective implementation and operation of this Chapter, a Sub-Committee on Economic Cooperation (hereinafter referred to in this Article as "the Sub-Committee") shall be established in accordance with Article 11 on the date of entry into force of this Agreement pursuant to paragraph 1 of Article 79.
2. The functions of the Sub-Committee shall be to:
(a) modify and formulate relevant Work Programmes setting out areas and forms of each field of economic cooperation;
(b) make recommendations on existing and new economic cooperation activities under this Chapter in accordance with the priorities of the Parties;
(c) review and monitor the implementation and operation of this Chapter and the application and fulfilment of its basic principles; and
(d) report the findings and the outcome of its discussions to the Joint Committee.
3. The Sub-Committee shall be:
(a) composed of representatives of the Governments of Japan and all ASEAN Member States; and
(b) co-chaired by an official of the Government of Japan and an official of one of the Governments of ASEAN Member States.
Article 55. Work Programmes for Economic Cooperation
1. Work Programmes setting out areas and forms of each field of cooperation activities shall be set forth in Annex
2. Any modification of existing Work Programmes or formulation of new Work Programmes shall be made in accordance with paragraph 2 of Article 54 and through amending Annex 5 pursuant to the procedures set out in Article 77.
Article 56. Resources for Economic Cooperation
Taking into account the different levels of economic development and capacity among the Parties, resources for economic cooperation under this Chapter shall be provided in such a manner as may be mutually agreed upon among the Parties.
Article 57. Implementation of Economic Cooperation Activities
1. Economic cooperation activities shall involve Japan and at least two (2) ASEAN Member States.
2. Notwithstanding paragraph 1, economic cooperation activities may also involve Japan and one (1) ASEAN Member State, provided that those activities are regional in nature and of benefit to other ASEAN Member States. Such activities shall aim at narrowing the gaps of economic development among ASEAN Member States or at promoting the well-being of the people of ASEAN Member States towards further integration of ASEAN.
3. The Parties shall undertake economic cooperation activities at mutually agreed time.
Article 58. Non-application of Chapter 9
The dispute settlement procedures provided for in Chapter 9 shall not apply to this Chapter.
Chapter 9. Settlement of Disputes
Article 59. Definitions
For the purposes of this Chapter, the term:
(a) "complaining party" means any Party or Parties that request consultations under paragraph 1 of Article 62;
(b) "party to a dispute" means any Party which is a complaining party or a party complained against;
(c) "party complained against" means any Party or Parties to which the request for consultations is made under paragraph 1 of Article 62; and
(d) "third party" means a Party, other than the parties to a dispute, that notifies its interest in writing in accordance with Article 66.
Article 60. Scope of Application
1. Unless otherwise provided for in this Agreement, this Chapter shall apply with respect to the settlement of all disputes between the Parties concerning the interpretation or application of this Agreement.
2. This Chapter may apply to measures affecting a Party's observance of this Agreement taken by regional or local governments or authorities within the Party. When the arbitral tribunal has awarded that a provision of this Agreement has not been observed in accordance with Article 67, the responsible Party shall take such reasonable measures as may be available to it to ensure its observance. Paragraphs 3 and 4 of Article 71 shall apply in cases where it has not been possible for the Party to secure such observance.
3. Nothing in this Chapter shall prejudice any rights of the Parties to have recourse to dispute settlement procedures available under any other international agreement to which all of the parties to a dispute are parties.
4. Notwithstanding paragraph 3, once dispute settlement proceedings have been initiated under this Chapter or under any other international agreement to which all of the parties to a dispute are parties with respect to a particular dispute, the forum selected by the complaining party shall be used to the exclusion of any other fora for that particular dispute. However, this shall not apply if substantially separate and distinct rights or obligations under different international agreements are in dispute.
5. For the purposes of paragraphs 3 and 4, the complaining party shall be deemed to have selected a forum when it has requested the establishment of, or referred a dispute to, an arbitral tribunal or a dispute settlement panel, in accordance with this Chapter or any other international agreement to which the parties to a dispute are parties.
Article 61. Contact Points
1. For the purposes of this Chapter, a Party may designate a contact point responsible for communications on all matters referred to in this Chapter. The submission of any request, notice or other document under this Chapter to the contact point so designated shall be deemed to have been made to that Party.
2. Where a Party chooses not to designate a contact point pursuant to paragraph 1, the submission of any request, notice or other document under this Chapter shall be made to the contact point which the Party designates in accordance with Article 12.
3. Any Party receiving any request, notice or other document under this Chapter shall acknowledge receipt in writing.
Article 62. Consultations
1. A Party or Parties may make a request in writing for consultations to other Party or Parties concerning any matter on the interpretation or application of this Agreement where the complaining party considers that any benefit accruing to it under this Agreement is being nullified or impaired as a result of the failure of the party complained against to carry out its obligations under this Agreement, or as a result of the application by the party complained against of measures which are in conflict with its obligations under this Agreement.
2. Any request for consultations shall be submitted in writing, containing the identification of the specific measures at issue and indication of the factual and legal basis (including the provisions of this Agreement alleged to have been breached and any other relevant provisions) of the complaint. The complaining party shall at the same time notify the rest of the Parties thereof.
3. Upon receipt of the request referred to in paragraph 1, the party complained against shall promptly acknowledge receipt of such request to the complaining party and the rest of the Parties at the same time.
4. If a request for consultations is made, the party complained against shall reply to the request within ten (10) days after the date of receipt of the request and shall enter into consultations in good faith within a period of not more than thirty (30) days after the date of receipt of the request, with a view to reaching a mutually satisfactory solution.
5. The parties to a dispute shall make every effort to reach a mutually satisfactory resolution of any matter through consultations under this Article. To this end, the parties to the dispute shall provide each other with sufficient information to enable a full examination of the dispute.
6. Consultations shall be confidential between the parties to the dispute and are without prejudice to the rights of any Party in any further proceedings under this Chapter or in other proceedings. The parties to the dispute shall inform the rest of the Parties of the outcome of the consultations.
7. In cases of urgency, including those which concern perishable goods, the parties to the dispute shall enter into consultations within a period of no more than ten (10) days after the date of receipt of the request by the party complained against.
8. In cases of urgency, including those which concern perishable goods, the parties to the dispute shall make every effort to accelerate the consultations to the greatest extent possible.
Article 63. Good Offices, Conciliation and Mediation
1. Good offices, conciliation and mediation are procedures that are undertaken voluntarily if the parties to the dispute so agree.
2. Good offices, conciliation or mediation may be requested at any time by any party to a dispute. They may begin at any time by agreement of the parties to the dispute and be terminated at any time upon the request of any party to the dispute.
3. If the parties to the dispute agree, good offices, conciliation or mediation may continue while the proceedings of the arbitral tribunal provided for in this Chapter are in progress.
4. Proceedings involving good offices, conciliation or mediation, and, in particular, positions taken by the parties to the dispute during these proceedings, shall be kept confidential and without prejudice to the rights of any Party in any proceedings under this Chapter or in other proceedings.
Article 64. Establishment of Arbitral Tribunals
1. The complaining party may request in writing, to the party complained against, the establishment of an arbitral tribunal:
(a) if the party complained against does not respond within ten (10) days, or does not enter into such consultations within thirty (30) days after the date of receipt of the request for such consultations; or
(b) if the parties to the dispute fail to resolve the dispute through such consultations within sixty (60) days after the date of receipt of the request for such consultations, or within twenty (20) days after such date in cases of urgency including those which concern perishable goods.
2. A copy of the request referred to in paragraph 1 shall also be communicated to the rest of the Parties.