(h) textiles;
(i) small and medium enterprises;
(j) health;
(k) entertainment and information;
(l) metallurgy; and
(m) other fields to be mutually agreed upon by the Parties.
Article 130. Scope and Forms of Cooperation
The scope and forms of cooperation under each identified field mutually agreed to by the Parties as referred to in Article 129 may be set forth in the Implementing Agreement.
Article 131. Implementation and Costs
1. The Parties shall, as soon as possible after the entry into force of this Agreement, initiate and promote discussions between their relevant implementing entities with a view to exploring potential cooperation activities in the respective fields referred to in Article 129. The Parties shall respect the established consultation mechanisms between them to ensure effective and efficient implementation of cooperation under this Chapter.
2. Cooperation under this Chapter may be implemented by the relevant entities through separate work plans, arrangements or any other means as deemed appropriate, to be drawn up on mutual consultation in due course. The Parties shall provide each other with the list of their relevant entities to be involved in the implementation of cooperation in the respective fields referred to in Article 129.
3. For the purposes of coordinating cooperation activities under this Chapter and promoting discussions referred to in paragraph 1, a Sub-Committee on Cooperation may be established pursuant to Article 14. The Sub- Committee may hold meetings at such frequency as mutually agreed upon by the Parties.
4. Cooperation in various fields need not be limited in scope and forms to those mentioned in Article 130.
5. The implementation of cooperation under this Chapter shall be subject to the availability of funds and the applicable laws and regulations of each Party.
6. Expenses incurred in the implementation of cooperation activities under this Chapter shall be borne in an equitable manner to be mutually agreed upon by the Parties.
Article 132. Non-Application of Chapter 14
The dispute settlement procedures provided for in Chapter 14 shall not apply to this Chapter.
Chapter 14. Dispute Settlement
Article 133. Scope
1. Unless otherwise provided for in this Agreement, this Chapter shall apply with respect to the settlement of disputes between the Parties concerning the interpretation or application of this Agreement.
2. Nothing in this Chapter shall prejudice any right of the Parties to have recourse to dispute settlement procedures available under the WTO Agreement.
3. Notwithstanding paragraph 2, once the establishment of an arbitral tribunal under this Chapter or a panel under Article 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes in Annex 2 to the WTO Agreement is requested with respect to a particular dispute, the arbitral tribunal or panel selected shall be used to the exclusion of any other procedure for that particular dispute.
Article 134. Consultations
1. Either Party may request in writing to the other Party for consultations concerning any matter on the interpretation or application of this Agreement.
2. When a Party requests consultations pursuant to paragraph 1, the other Party shall reply to the request and enter into consultations in good faith within 30 days after the date of receipt of the request, with a view to reaching a mutually satisfactory solution of the matter. In cases of urgency, including those concerning perishable goods, the other Party shall enter into consultations within 15 days after the date of receipt of the request.
Article 135. Good Offices, Conciliation or Mediation
1. Good offices, conciliation or mediation may be requested at any time by either Party. They may begin at any time by agreement of the Parties, and be terminated at any time upon the request of either Party.
2. If the Parties agree, good offices, conciliation or mediation may continue while procedures of the arbitral tribunal provided for in this Chapter are in progress.
Article 136. Establishment of Arbitral Tribunals
1. The complaining Party that requested consultations under Article 134 may request in writing the establishment of an arbitral tribunal to the Party complained against:
(a) if the Party complained against does not enter into such consultations within 30 days, or within 15 days in cases of urgency including those concerning perishable goods, after the date of receipt of the request for such consultations; or
(b) if the Parties fail to resolve the dispute through such consultations within 60 days, or within 30 days in cases of urgency including those concerning perishable goods, after the date of receipt of the request for such consultations,
provided that the complaining Party considers that any benefit accruing to it directly or indirectly 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 the establishment of an arbitral tribunal pursuant to this Article shall identify:
(a) the factual basis for the complaint; and
(b) the legal basis of the complaint including the provisions of this Agreement alleged to have been breached.
3. Each Party shall, within 30 days after the date of receipt of the request for the establishment of an arbitral tribunal, appoint one arbitrator who may be its national and propose up to three candidates to serve as the third arbitrator who shall be the chair of the arbitral tribunal. The third arbitrator shall not be a national of either Party, nor have his or her usual place of residence in either Party, nor be employed by either Party, nor have dealt with the dispute in any capacity.
4, The Parties shall agree on and appoint the third arbitrator within 45 days after the date of receipt of the request for the establishment of an arbitral tribunal, taking into account the candidates proposed pursuant to paragraph 3.
5. If a Party has not appointed an arbitrator pursuant to paragraph 3 or if the Parties fail to agree on and appoint the third arbitrator pursuant to paragraph 4, the arbitrator or arbitrators not yet appointed shall be chosen within seven days by lot-drawing from the candidates proposed pursuant to paragraph 3.
6. The date of the establishment of an arbitral tribunal shall be the date on which the chair is appointed.
7. An arbitral tribunal should be composed of arbitrators with relevant technical or legal expertise.
Article 137. Functions of Arbitral Tribunals
1. The arbitral tribunal established pursuant to Article 136:
(a) should consult with the Parties as appropriate and provide adequate opportunities for the development of a mutually satisfactory solution;
(b) shall make its award in accordance with this Agreement and applicable rules of international law;
(c) shall set out in its award, its findings of law and fact, together with the reasons therefor; and
(d) may, apart from giving its findings, include in its award suggested implementation options for the Parties to consider in conjunction with Article 140.
2. The arbitral tribunal may seek, from the Parties, such relevant information as it considers necessary and appropriate. The Parties shall respond promptly and fully to any request by the arbitral tribunal for such information as the arbitral tribunal considers necessary and appropriate.
3. With respect to factual issues concerning a scientific or other technical matter raised by a Party, the arbitral tribunal may request information or advisory reports in writing from experts. The arbitral tribunal may, at the request of a Party or on its own initiative, select, in consultation with the Parties, no fewer than two scientific or technical experts who shall assist the arbitral tribunal throughout its proceedings and provide information or advice upon request by the arbitral tribunal, but who shall not have the right to vote in respect of any decision to be made by the arbitral tribunal, including its award.
4. Any information or advice obtained by the arbitral tribunal pursuant to paragraph 3 shall be made available to the Parties. Each Party may make written submissions on the handling of such information or advice by the arbitral tribunal.
Article 138. Proceedings of Arbitral Tribunals
1. the Arbitral Tribunal Shall Meet In Closed Session.
2. The deliberations of the arbitral tribunal and the documents submitted to it shall be kept confidential.
3. Notwithstanding paragraph 2, either Party may make public statements as to its views regarding the dispute, but shall treat as confidential, information and written submissions submitted by the other Party to the arbitral tribunal which that other Party has designated as confidential. Where a Party has provided information or written submissions designated as confidential, that Party shall, upon request of the other Party, provide a non- confidential summary of the information or written submissions which may be disclosed publicly.
4. The Parties shall be given the opportunity to attend any of the presentations, statements or rebuttals in the proceedings. Any information or written submissions submitted by a Party to the arbitral tribunal, including any comments on the descriptive part of the draft award and responses to questions put by the arbitral tribunal, shall be made available to the other Party.
5. The award of the arbitral tribunal shall be drafted without the presence of the Parties, and in the light of the information provided and the statements made.
6. The arbitral tribunal shall, within 120 days, or within 60 days in cases of urgency including those concerning perishable goods, after the date of its establishment, submit to the Parties its draft award, including both the descriptive part and its findings and conclusions, for the purposes of enabling the Parties to review precise aspects of the draft award. When the arbitral tribunal considers that it cannot submit its draft award within the aforementioned 120 days or 60 days period, it may extend that period with the consent of the Parties. A Party may submit comments in writing to the arbitral tribunal on the draft award within 15 days after the date of submission of the draft award.
7. The arbitral tribunal shall issue its award, within 30 days after the date of submission of the draft award.
8. The arbitral tribunal shall attempt to make its decisions, including its award, by consensus. Failing such consensus, it may make its decisions, including its award, by majority vote. In case of majority vote, opinions expressed by individual arbitrators shall be anonymous.
9. The award of the arbitral tribunal shall be final and binding on the Parties.
Article 139. Termination of Proceedings
1. The Parties may agree to terminate the proceedings of the arbitral tribunal at any time before the issuance of the award to the Parties.
2. When the Parties jointly notify the chair of the arbitral tribunal of the agreement under paragraph 1, the chair shall terminate the proceedings of the arbitral tribunal.
Article 140. Implementation of Award
1. The Party complained against shall promptly comply with the award of the arbitral tribunal issued pursuant to Article 138.
2. If the prompt compliance with the award is impracticable, the Party complained against shall, within 20 days after the date of issuance of the award, notify the complaining Party of the period of time required for implementing the award. If the complaining Party considers that the period of time notified is unacceptable, it may refer the matter to an arbitral tribunal which then shall determine the reasonable implementation period.
3. If the Party complained against considers it impracticable to comply with the award within the implementation period as determined pursuant to paragraph 2, the Party complained against shall, no later than the expiry of that implementation period, enter into consultations with the complaining Party, with a view to developing mutually satisfactory compensation. If no satisfactory compensation has been agreed within 30 days after the date of expiry of that implementation period, the complaining Party may notify the Party complained against that it intends to suspend the application to the Party complained against of concessions or other obligations under this Agreement.
4. If the complaining Party considers that the Party complained against has failed to comply with the award within the implementation period as determined pursuant to paragraph 2, it may refer the matter to an arbitral tribunal.
5. If the arbitral tribunal to which the matter is referred pursuant to paragraph 4 confirms that the Party complained against has failed to comply with the award within the implementation period as determined pursuant to paragraph 2, the complaining Party may, within 30 days after the date of such confirmation by the arbitral tribunal, notify the Party complained against that it intends to suspend the application to the Party complained against of concessions or other obligations under this Agreement.
6. The suspension of the application of concessions or other obligations under paragraphs 3 and 5 may only be implemented at least 30 days after the date of the notification in accordance with those paragraphs. Such suspension shall:
(a) not be effected if, in respect of the dispute to which the suspension relates, consultations or proceedings before the arbitral tribunal are in progress;
(b) be temporary, and be discontinued when the Parties reach a mutually satisfactory resolution or where compliance with the original award is effected;
(c) be restricted to the same level of nullification or impairment that is attributable to the failure to comply with the original award; and
(d) be restricted to the same sector or sectors to which the nullification or impairment relates, unless it is not practicable or effective to suspend the application of concessions or obligations in such sector or sectors.
7. If the Party complained against considers that the requirements for the suspension of the application to it of concessions or other obligations under this Agreement by the complaining Party set out in paragraph 3, 5 or 6 have not been met, it may request consultations with the complaining Party. The complaining Party shall enter into consultations within 10 days after the date of receipt of the request. If the Parties fail to resolve the matter within 30 days after the date of receipt of the request for consultations pursuant to this paragraph, the Party complained against may refer the matter to an arbitral tribunal.
8. The arbitral tribunal that is established for the purposes of this Article shall, wherever possible, have, as its arbitrators, the arbitrators of the original arbitral tribunal. If this is not possible, then the arbitrators to the arbitral tribunal that is established for the purposes of this Article shall be appointed pursuant to paragraphs 3 through 5 of Article 136.
9. Unless the Parties agree to a different time period, the arbitral tribunal established under this Article shall issue its award within 60 days after the date when the matter is referred to it. Such award shall be binding on the Parties.
Article 141. Expenses
1, Unless otherwise agreed by the Parties, the expenses of the arbitral tribunal other than those referred to in paragraph 2, shall be borne by the Parties in equal shares.
2. Each Party shall bear the expenses of its representation in the proceedings of the arbitral tribunal. Article 142 Language All proceedings of the arbitral tribunal and all documents and information submitted to the arbitral tribunal shall be in the English language.
Chapter 15. Final Provisions
Article 143. Table of Contents and Headings
The table of contents and headings of the Chapters and Articles of this Agreement are inserted for convenience of reference only and shall not affect the interpretation of this Agreement.
Article 144. Annexes and Notes
The Annexes and Notes to this Agreement shall form an integral part of this Agreement.
Article 145. Amendment
1. This Agreement may be amended by agreement between the Parties.
2. Such amendment shall be approved by the Parties in accordance with their respective legal procedures, and shall enter into force on the date to be agreed upon by the Parties.
3. Notwithstanding paragraph 2, amendments relating only to the following may be made by diplomatic notes exchanged between the Governments of the Parties:
(a) Annex 1, provided that the amendments to the Schedule of a Party are made in accordance with the amendment of the Harmonized System, and include no change on the rates of customs duty to be applied to the originating goods of the other Party in accordance with Annex 1; or
(b) Annex 2,
Article 146. Entry Into Force
This Agreement shall enter into force on the first day of the second month following the month in which the Governments of the Parties exchange diplomatic notes informing each other that their respective legal procedures necessary for entry into force of this Agreement have been completed. It shall remain in force unless terminated as provided for in Article 147.
Article 147. Termination
Either Party may terminate this Agreement by giving one year's advance notice in writing to the other Party.
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective Governments, have signed this Agreement.
Conclusion
DONE at Tokyo on this sixteenth day of February in the year 2011 in duplicate in the English language.
For Japan:
For the Republic of India: Anand Sharma
Attachments
Annex 8 Referred to in Chapter 8. Reservations for Measures referred to in paragraph 1 of Article 90
Part 1. Schedule of India
1. The Schedule of India sets out, pursuant to paragraph 1 of Article 90, the reservations taken by India with respect to existing measures that do not conform with obligations imposed by:
(a) Article 85;
(b) Article 86; or
(c) Article 89.
2. Each reservation sets out the following elements:
(a) "Sector" refers to the general sector in which the reservation is taken;
(b) "Sub-Sector" refers to the specific sector in which the reservation is taken;
(c) "Industry Classification" refers, where applicable, and only for transparency purposes, to the activity covered by the reservation according to domestic or international industry classification codes;
(d) "Type of Reservation" specifies the obligations referred to in paragraph 1 for which the reservation is taken;
(e) "Measures" identifies the existing laws, regulations or other measures for which the reservation is taken. A measure cited in the "Measures" element:
(i) means the measure as amended, continued, or renewed as of the date of entry into force of this Agreement; and
(ii) includes any subordinate measure adopted or maintained under the authority of and consistent with the measure; and
(f) "Description" sets out, with regard to the obligations referred to in paragraph 1, the non-conforming aspects of the existing measures for which the reservation is taken.
3. In the interpretation of a reservation, all elements of the reservation shall be considered. A reservation shall be interpreted in the light of the relevant provisions of Chapter 8 against which the reservation is taken, and the "Measures" element shall prevail over all other elements.
4. For the purposes of this Part:
(a) the term "ISIC" means the International Standard Industrial Classification of All Economic Activities adopted, at its seventh session on August 27, 1948 and revised on May 22, 1989, by the Economic and Social Council of the United Nations; and
(b) the term "NIC" means National Industrial Classification Code, 1987 as set out by the Central Statistical Organisation of the Government of India.
1.
Sector: All Sectors
Sub-Sector:
Industry Classification:
Type of Reservation: National Treatment (Article 85) Most-Favoured–Nation Treatment (Article 86)
Measures: Article 73 of the Constitution of India read with Article 246 of the Constitution of India. Foreign Exchange Management Act, 1999 and all regulations/rules/orders issued thereunder. Press Notes and Circulars on FDI Policy issued by the Central Government. The Companies Act, 1956 and all regulations/rules/orders issued thereunder. Indian company means a company incorporated in India under the Indian Companies Act, 1956.
Description: A person resident outside India, including an entity incorporated outside India, can purchase shares of an Indian company under the FDI Scheme.
There are separate regulatory treatment provided to Foreign Institutional Investors (FIIs) and Venture Capital Funds in relation to investment in Indian Companies, which may be modified from time to time.
FDI is not permitted in Indian partnerships and any association of persons (which would include societies and trusts) except upon obtaining the prior consent of the Reserve Bank of India for such investment.
When the total holdings of FIIs/Non Resident Indians (NRIs) under the Scheme reach the trigger limit, which is 2 percent below the applicable limit (for companies with paid-up capital of Rs. 1000 crores and above, the trigger limit is 0.5 percent below the applicable limit), Reserve Bank will issue a notice to all designated branches of banks cautioning that any further purchases of shares of the particular Indian company will require prior approval of Reserve Bank.
Reserve Bank gives case-by-case approvals to FIIs for purchase of shares of companies included in the Caution List. This is done on a first-come-first-served basis. Once the shareholding by FIIs/NRIs reaches the overall ceiling/sectoral cap/statutory limit, Reserve Bank puts the company on the Ban List. Once a company is placed on the Ban List, no FII or NRI can purchase the shares of the company under the Portfolio Investment Scheme.
2.
Sector: All Sectors
Sub-Sector:
Industry Classification:
Type of Reservation: National Treatment (Article 85) Most-Favoured–Nation Treatment (Article 86)
Measures: Article 73 of the Constitution of India read with Article 246 of the Constitution of India. Foreign Exchange Management Act, 1999 and all regulations/rules/orders issued thereunder. Press Notes and Circulars on FDI Policy issued by the Central Government.
Description:
Prior approval of the Government will be required even for investments covered under the automatic route, if the foreign investor has an existing joint venture or trademark/technical collaboration agreement in India as on 12.1.2005 in the same field. The same field is determined by the 4-digit National Industrial Code, 1987. If the proposed investment is in an activity that has the same NIC Code classification as that of the existing joint venture or technical collaboration, then these limitations will be applicable.
This is not applicable in the following circumstances:
(a) investments made by Venture Capital Funds registered with Securities Exchange Board of India (SEBI)
(b) where in the existing joint venture investment by either of the parties is less than 3 percent
(c) where the existing venture/collaboration is defunct or sick
(d) investment into Information Technology sector, mining sector subject to furnishing of declaration that the proposed/new Wholly Owned Subsidiary (WOS)/Joint Venture (JV) is not for same area/mineral
(e) investment by multinational financial institutions.
3.
Sector: All Sectors
Sub-Sector:
Industry Classification: