Title
Agreement between the Government of Japan and the Government of Malaysia for an Economic Partnership
Preamble
The Government of Japan and the Government of Malaysia,
Recognising that a dynamic and rapidly changing global environment brought about by globalisation and technological progress presents various economic and strategic challenges and opportunities to the Countries;
Conscious of their longstanding friendship and strong economic and political ties, that have developed through many years of fruitful and mutually beneficial co-operation between the Countries;
Believing that such bilateral relationship will be enhanced by forging mutually beneficial economic partnership through co-operation, trade liberalisation and trade facilitation;
Reaffirming that the economic partnership will provide a useful framework for enhanced co-operation and serve the common interests of the Countries in various fields as agreed in this Agreement and lead to the improvement of economic efficiency and the development of trade, investment and human resources;
Recognising that such partnership would create larger and new market, and enhance the attractiveness and vibrancy of their markets;
Recalling Article XXIV of the General Agreement on Tariffs and Trade 1994 and Article V of the General Agreement on Trade in Services in Annex 1A and Annex 1B, respectively, to the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh, April 15, 1994;
Bearing in mind the Framework for Comprehensive Economic Partnership between Japan and the Association of Southeast Asian Nations (hereinafter referred to as “ASEAN”) signed in Bali, Indonesia on 8 October 2003;
Convinced that this Agreement would open a new era for the relationship between the Countries; and
Determined to establish a legal framework for an economic partnership between the Countries;
HAVE AGREED as follows:
Body
Chapter 1. General Provisions
Article 1. Objectives
The objectives of this Agreement, to be pursued in accordance with its provisions, are:
(a) to liberalise and facilitate trade in goods and services between the Countries;
(b) to mutually improve investment opportunities and business environment, and ensure protection for
investments and investment activities;
(c) to establish a framework to enhance closer co- operation on socio-economic partnership, inter alia, by way of exchange of information, skills and technology in fields as agreed in this Agreement;
(d) to ensure protection of intellectual property and to promote co-operation in the field thereof;
(e) to encourage effective control of and promote co- operation in the field of anti-competitive activities; and
(f) to create effective procedures for the implementation and application of this Agreement and for the resolution of disputes.
Article 2. General Definitions
For the purposes of this Agreement, unless otherwise specified:
(a) the term “Countries” means Japan and Malaysia and the term “Country” means either Japan or Malaysia;
(b) the term “GATS” means the General Agreement on Trade in Services in Annex 1B to the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh, April 15, 1994, as may be amended;
(c) the term “GATT 1994” means the General Agreement on Tariffs and Trade 1994 in Annex 1A to the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh, April 15, 1994, as may be amended. For the purposes of this Agreement, references to articles in the GATT 1994 include the interpretative notes;
(d) the term “Governments” means the Government of Japan and the Government of Malaysia and the term “Government” means either the Government of Japan or the Government of Malaysia;
(e) the term “Harmonized System (HS)” means the Harmonized Commodity Description and Coding System set out in the Annex to the International Convention on the Harmonized Commodity Description and Coding System, as may be amended, and adopted and implemented by the Countries in their respective laws;
(f) the term “Japan” means all the territory of Japan, including its territorial sea, in which the laws and regulations of Japan are in force, and all the area beyond its territorial sea, including the sea-bed and subsoil thereof, over which Japan exercises sovereign rights or jurisdiction in accordance with international law and the laws and regulations of Japan;
(g) the term “Malaysia” means the territories of the Federation of Malaysia, the territorial waters of Malaysia and the sea-bed and subsoil of the territorial waters, and the airspace above such areas, and includes any area extending beyond the limits of the territorial waters of Malaysia, and the sea-bed and subsoil of any such area, which has been or may hereafter be designated under the laws of Malaysia and in accordance with international law as an area over which Malaysia has sovereign rights or jurisdiction for the purposes of exploring and exploiting the natural resources, whether living or non-living; and
(h) the term “WTO Agreement” means the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh, April 15, 1994, as may be amended.
Note: Nothing in subparagraphs (f) and (g) of this Article shall affect the rights and obligations of the Countries under international law, including those under the United Nations Convention on the Law of the Sea.
Article 3. Transparency
1. Each Country shall make publicly available its laws, regulations, administrative procedures and administrative rulings and judicial decisions of general application as well as international agreements to which the Country is a party, with respect to any matter covered by this Agreement.
2. Each Government shall make easily available to the public, the names and addresses of the competent authorities responsible for laws, regulations, administrative procedures and administrative rulings, referred to in paragraph 1 of this Article.
3. Each Government shall, upon the request by the other Government, within a reasonable period of time, respond to specific questions from, and provide information to, the other Government in the English language with respect to matters referred to in paragraph 1 of this Article.
4. When introducing or changing its Country’s laws, regulations or administrative procedures that significantly affect the implementation and operation of this Agreement, each Government shall endeavour to provide, except in emergency situations, a reasonable interval between the time when such laws, regulations or administrative procedures are published or made publicly available and the time when they enter into force.
Article 4. Public Comment
Each Government shall, in accordance with the laws and regulations of the Country, endeavour to:
(a) make public in advance regulations of general application that affect any matter covered by this Agreement; and
(b) provide a reasonable opportunity for comments by the public and give consideration to those comments before adoption of such regulations.
Article 5. Administrative Procedures
1. Where the administrative decisions which pertain to or affect the implementation and operation of this Agreement are taken by the competent authorities of a Government, the competent authorities shall, in accordance with the laws and regulations of the Country, endeavour to:
(a) inform the applicant of the decision within a reasonable period of time after the submission of an application considered complete under the laws and regulations of the Country, taking into account the established standard period of time referred to in paragraph 3 of this Article; and
(b) provide, within a reasonable period of time, information concerning the status of the application, at the request of the applicant.
2. The competent authorities shall, in accordance with the laws and regulations of the Country, establish standards for taking administrative decisions in response to submitted applications. The competent authorities shall endeavour to:
(a) make such standards as specific as possible; and
(b) make such standards publicly available except when it would extraordinarily raise administrative difficulties for the Government.
3. The competent authorities shall, in accordance with the laws and regulations of the Country, endeavour to:
(a) establish standard periods of time between receipt of applications by the competent authorities and administrative decisions taken in response to submitted applications; and
(b) make such periods of time publicly available, if it is established.
4. The competent authorities shall, prior to any final decision which imposes obligations on or restricts rights of a person, endeavour to provide that person with:
(a) a reasonable notice, including a description of the nature of the measure, specific provisions upon which such measure will be based, and the facts which may be a cause of taking such measure; and
(b) a reasonable opportunity to present facts and arguments in support of position of such person, provided that time, nature of the measure and public interest permit and in accordance with the laws and regulations of the Country.
Article 6. Review and Appeal
1. Each Country shall maintain judicial tribunals or procedures for the purpose of prompt review and, where warranted, correction of actions taken by the Government regarding matters covered by this Agreement. Such tribunals or procedures shall be independent of the authorities entrusted with the administrative enforcement of such actions.
2. Each Country shall ensure that the parties in any such tribunals or procedures are provided with the right to:
(a) a reasonable opportunity to support or defend their respective positions; and
(b) a decision based on the evidence and submissions of record.
3. Each Country shall ensure, subject to appeal or further review as provided in its laws and regulations, that such decision is implemented by the relevant authorities with respect to the action at issue which is taken by the Government.
Article 7. Administrative Guidance
1. Where a competent authority of a Government renders administrative guidance with regard to any matter covered by this Agreement, such competent authority shall ensure that the administrative guidance does not exceed the scope of its competence and shall not require the person concerned to comply with its administrative guidance without voluntary co-operation.
2. Such competent authority shall ensure, in accordance with the laws and regulations of its Country, that the person concerned not be treated unfavourably solely on account of non-compliance of such person with such administrative guidance.
3. Such competent authority shall, in accordance with the laws and regulations of its Country, provide to the person concerned in writing, upon the request of such person, the purposes and contents of the administrative guidance.
4. For the purposes of this Article, the term “administrative guidance” means guidance, recommendations, advice by a competent authority of either Government which require a person to do or refrain from doing any act but does not create, impose limitations on or in any way affect rights and obligations of such person in order to pursue administrative objectives.
Article 8. Confidentiality
1. Each Government shall undertake, in accordance with the laws and regulations of its Country, to observe the confidentiality of information provided by the other Government.
2. Notwithstanding paragraph 1 of this Article, the information provided under this Agreement may be transmitted to a third party subject to the prior written consent of the providing Government.
3. Nothing in this Agreement shall require any Government to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.
4. In the event of termination of this Agreement, the Countries agree that the provision of this Article shall continue to apply.
Article 9. Taxation
1. Unless otherwise provided for in this Agreement, the provisions of this Agreement shall not apply to any taxation measures.
2. Nothing in this Agreement shall affect the rights and obligations of either Country under any tax convention. In the event of any inconsistency between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency.
3. Articles 3 and 8 shall apply to taxation measures, to the extent that the provisions of this Agreement are applicable to such taxation measures.
Article 10. General and Security Exceptions
1. For the purposes of Chapters 2, 3, 4, 5, 6 and 7 other than Article 82, Articles XX and XXI of the GATT 1994 are incorporated into and form part of this Agreement, mutatis mutandis.
2. For the purposes of Chapter 7 other than Article 82 and Chapter 8, Articles XIV and XIV bis of the GATS are incorporated into and form part of this Agreement, mutatis mutandis.
Article 11. Relation to other Agreements
1. The Countries reaffirm their rights and obligations under the WTO Agreement or any other agreements to which both Countries are parties.
2. In the event of any inconsistency between this Agreement and the WTO Agreement, the WTO Agreement shall prevail to the extent of the inconsistency.
3. In the event of any inconsistency between this Agreement and any agreements other than the WTO Agreement, to which both Countries are parties, the Countries shall immediately consult with each other with a view to finding a mutually satisfactory solution, taking into consideration general principles of international law.
Article 12. Implementing Agreement
The Governments shall conclude a separate agreement setting forth the details and procedures for the implementation of this Agreement (hereinafter referred to in this Agreement as “the Implementing Agreement”).
Article 13. Joint Committee
1. A Joint Committee shall be established under this Agreement.
2. The functions of the Joint Committee shall be:
(a) reviewing the implementation and operation of this Agreement;
(b) submitting a report to the Countries through the contact points referred to in Article 15 on the implementation and operation of this Agreement;
(c) considering and recommending to the Countries any amendments to this Agreement;
(d) supervising and coordinating the work of all Sub- Committees established under this Agreement;
(e) adopting:
(i) the Operational Procedures referred to in Chapter 3; and
(ii) any necessary decisions; and
(f) carrying out other functions as the Countries may agree.
3. The Joint Committee:
(a) shall be co-chaired by senior officials of the Governments, unless the Countries agree to convene the meeting at ministerial level; and
(b) may establish and delegate its responsibilities to Sub-Committees.
4. The Joint Committee shall establish its rules and procedures and financial arrangements.
5. The Joint Committee shall convene its inaugural meeting within one year after this Agreement enters into force. Its subsequent meetings shall be held at such frequency as the Countries may agree upon. The Joint Committee shall convene alternately in Japan and Malaysia, unless the Countries agree otherwise. Special meetings of the Joint Committee may be convened, within 30 days upon the request of either Country.
Article 14. Sub-Committees
The following Sub-Committees shall be established on the date of entry into force of this Agreement:
(a) Sub-Committee on Trade in Goods;
(b) Sub-Committee on Rules of Origin;
(c) Sub-Committee on Customs Procedures;
(d) Sub-Committee on Technical Regulations, Standards and Conformity Assessment Procedures;
(e) Sub-Committee on Sanitary and Phytosanitary Measures;
(f) Sub-Committee on Investment;
(g) Sub-Committee on Trade in Services;
(h) Sub-Committee on Intellectual Property;
(i) Sub-Committee on Improvement of Business Environment; and
(j) Sub-Committee on Co-operation.
Article 15. Communications
Communications between the Countries on any matterrelating to this Agreement shall be facilitated through the following contact points:
(a) in the case of Japan, the Ministry of Foreign Affairs of Japan; and
(b) in the case of Malaysia, the Ministry of Foreign Affairs of Malaysia.
Chapter 2. Trade In Goods
Article 16. Definitions
For the purposes of this Chapter:
(a) the term “bilateral safeguard measure” means a bilateral safeguard measure provided for in paragraph 1 of Article 23;
(b) the term “customs duty” means any customs or import duty and a charge of any kind, imposed in connection with the importation of a good, but does not include any:
(i) charge equivalent to an internal tax imposed consistently with the provisions of paragraph 2 of Article III of the GATT 1994, in respect of the like goods or, directly competitive or substitutable goods of the Country or in respect of goods from which the imported goods have been manufactured or produced in whole or in part;
(ii) anti-dumping or countervailing duty applied pursuant to a Country’s law and applied consistently with the provisions of Article VI of the GATT 1994, the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, as may be amended, and the Agreement on Subsidies and Countervailing Measures in Annex 1A to the WTO Agreement, as may be amended; or
(iii) fees or other charges commensurate with the cost of services rendered;
(c) the term “customs value of goods” means the value of goods for the purposes of levying ad valorem customs duties on imported goods;
(d) the term “domestic industry” means the producers as a whole of the like or directly competitive goods operating in the territory of a Country, or those whose collective output of the like or directly competitive goods constitutes a major proportion of the total domestic production of those goods;
(e) the term “export subsidies” means export subsidies listed in Article 9 of the Agreement on Agriculture in Annex 1A to the WTO Agreement, as may be amended (hereinafter referred to in this Chapter as “the Agreement on Agriculture”);
(f) the term “originating goods” means goods which qualify as originating goods under the provisions of Chapter 3;
(g) the term “provisional bilateral safeguard measure” means a provisional bilateral safeguard measure provided for in subparagraph 9(a) of Article 23;
(h) the term “serious injury” means a significant overall impairment in the position of a domestic industry; and
(i) the term “threat of serious injury” means serious injury that, on the basis of facts and not merely on allegation, conjecture or remote possibility, is clearly imminent.
Article 17. Classification of Goods
The classification of goods in trade between the Countries shall be in conformity with the Harmonized System.
Article 18. National Treatment
Each Country shall accord national treatment to the goods of the other Country in accordance with Article III of the GATT 1994.
Article 19. Elimination of Customs Duties
1. Except as otherwise provided for in this Agreement, each Country shall eliminate or reduce its customs duties on originating goods of the other Country in accordance with its Schedule in Annex 1.
2. Except as otherwise provided for in this Agreement, neither Country shall increase any customs duty on originating goods of the other Country from the rate to be applied in accordance with its Schedule in Annex 1.
3. On the request of either Country, the Countries shall negotiate on issues such as improving market access conditions on originating goods designated for negotiation in the Schedule in Annex 1, in accordance with the terms and conditions set out in such Schedule.
Article 20. Customs Valuation
For the purposes of determining the customs value of goods traded between the Countries, provisions of Part I of the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 in Annex 1A to the WTO Agreement, as may be amended (hereinafter referred to in this Agreement as “the Agreement on Customs Valuation”), shall apply mutatis mutandis.
Article 21. Export Subsidy
Neither Country shall in accordance with the Agreement on Agriculture introduce or maintain any export subsidies on any agricultural good which is listed in Annex 1 to the Agreement on Agriculture.
Article 22. Non-tariff Measures
Except as otherwise provided for in this Agreement, each Country shall not introduce or maintain any non-tariff measures on the importation of any good of the other Country or on the exportation or sale for export of any good destined for the other Country which are inconsistent with its obligations under the WTO Agreement.
Article 23. Bilateral Safeguard Measures
1. Subject to the provisions of this Article, if an originating good of the other Country, as a result of the elimination or reduction of a customs duty in accordance with Article 19, is being imported into the territory of a Country in such increased quantities, in absolute terms or relative to domestic production, and under such conditions that the imports of that originating good constitute a substantial cause of serious injury, or threat thereof, to a domestic industry of the latter Country, the latter Country may, as a bilateral safeguard measure, to the minimum extent necessary to prevent or remedy the serious injury and to facilitate adjustment: