2. The main objectives of this Chapter are as follows:
(a) to enhance socio-economic development;
(b) to strengthen economic competitiveness;
(c) to advance human resource development;
(d) to promote sustainable development; and
(e) to improve overall well-being of the peoples of
both Countries.
Article 140. Fields of Co-operation
The fields of co-operation under this Chapter shall include:
(a) agriculture, forestry, fisheries and plantation;
(b) education and human resource development;
(c) information and communications technology;
(d) science and technology;
(e) small and medium enterprises;
(f) tourism;
(g) environment; and
(h) other fields to be mutually agreed upon by the Governments.
Article 141. Areas and Forms of Co-operation
Areas and forms of co-operation under this Chapter shall be set forth in the Implementing Agreement.
Article 142. Costs of Co-operation
1. The implementation of co-operation under this Chapter shall be subject to the availability of funds and the applicable laws and regulations of each Country.
2. Costs of co-operation under this Chapter shall be borne in an equitable manner to be mutually agreed upon between the Countries.
Article 143. Sub-Committee on Co-operation
1. For the purposes of effective implementation and operation of this Chapter, the functions of the Sub-Committee on Co-operation (hereinafter referred to in this Article as “the Sub-Committee”) established in accordance with Article 14 shall be:
(a) exchanging information on the field of co- operation;
(b) reviewing and monitoring the implementation and operation of this Chapter;
(c) discussing any issues related to this Chapter;
(d) reporting the findings and the outcome of discussions of the Sub-Committee to the Joint Committee regarding issues relating to the implementation of this Chapter, including the measures to be taken by the Countries;
(e) identifying ways for further co-operation between the Countries;
(f) supervising the functions and activities of the working group to be established pursuant to paragraph 5 of this Article;
(g) establishing its own rules of administrative procedures; and
(h) carrying out other functions as may be delegated by the Joint Committee in accordance with Article 13.
2. The Sub-Committee shall respect existing consultation mechanisms between the Countries for Official Development Assistance and, as appropriate, share information and coordinate with such mechanisms to ensure effective and efficient implementation of co-operative activities and projects.
3. The Sub-Committee shall convene its inaugural meeting within one year after this Agreement enters into force and subsequently meet at such times as may be agreed by the Countries. The Sub-Committee shall meet at such venues as may be agreed by the Countries.
4. The Sub-Committee shall be:
(a) composed of representatives of the Governments, and may, by consensus, invite representatives of relevant entities other than the Governments with the necessary expertise relevant to the issues to be discussed; and
(b) co-chaired by officials of the Governments.
5. The Sub-Committee may establish a working group for each field of co-operation under the Sub-Committee.
Article 144. Non-Application of Chapter 13
The dispute settlement procedures provided for in Chapter 13 shall not apply to this Chapter.
Chapter 13. Dispute Settlement
Article 145. Scope
1. Unless otherwise provided for in this Agreement, this Chapter shall apply with respect to the settlement of disputes between the Countries concerning the interpretation or application of this Agreement.
2. Nothing in this Chapter shall prejudice any rights of the Countries to have recourse to dispute settlement procedures available under any other international agreement to which both Countries are parties.
3. Notwithstanding paragraph 2 of this Article, once a dispute settlement procedure has been initiated under this Chapter or under any other international agreement to which both Countries are parties with respect to a particular dispute, that procedure shall be used to the exclusion of any other procedure for that particular dispute. However, this shall not apply if substantially separate and distinct rights or obligations under different international agreements are in dispute.
Article 146. Consultations
1. Either Country may make a request in writing consultations to the other Country concerning any matter on the interpretation or application of this Agreement.
2. When a Country requests consultations pursuant to paragraph 1 of this Article, the other Country 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 prompt and mutually satisfactory resolution of the matter. In a case of consultations regarding perishable goods, the requested Country shall enter into consultations within 15 days after the date of receipt of the request.
3. The requesting Country shall set out the reasons for
the request, including identification of the measure at
issue and an indication of the legal basis for the
complaint.
4. The Countries shall make every effort to reach a
mutually satisfactory resolution through consultations.
5. Consultations shall be confidential and without
prejudice to the rights of either Country in any further
proceedings.
Article 147. Good Offices, Conciliation or Mediation
1. The Countries may at any time agree to good offices, conciliation or mediation. They may begin at any time and be terminated at the request of either Country at any time.
2. If the Countries agree, procedures for good offices, conciliation or mediation may continue while procedures of the arbitral tribunal provided for in this Chapter are in progress.
3. Proceedings involving good offices, conciliation or mediation and positions taken by the Countries during these proceedings, shall be confidential, and without prejudice to the rights of either Country in any further proceedings.
Article 148. Establishment of Arbitral Tribunals
1. The complaining Country that requested consultations under Article 146 may request in writing the establishment of an arbitral tribunal to the Country complained against:
(a) if the Country complained against does not enter into such consultations within 30 days after the date of receipt of the request for consultations under that Article; or
(b) if the Countries fail to resolve the dispute through such consultations under that Article within 60 days after the date of receipt of the request for such consultations,provided that the complaining Country 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 Country complained against to carry out its obligations, or as a result of the application by the Country complained against of measures which are in conflict with the obligations of that Country, under this Agreement.
2. Any request to establish an arbitral tribunal pursuant to this Article shall identify:
(a) the legal basis of the complaint including the provisions of this Agreement alleged to have been breached and any other relevant provisions; and
(b) the factual basis for the complaint.
3. Each Country 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 Country, nor have his or her usual place of residence in either Country, nor be employed by either Country, nor have dealt with the dispute in any capacity.
4. The Countries 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 of this Article. If the Countries fail to agree on the third arbitrator, the Countries shall request the two arbitrators appointed pursuant to paragraph 3 of this Article to appoint the third arbitrator. If the arbitrators are not able to reach agreement on the third arbitrator within 30 days after the date of receipt of the request, the Director-General of the WTO may be requested by either Country to appoint the third arbitrator.
5. The date of the establishment of an arbitral tribunal shall be the date on which the chair is appointed.
6. The arbitral tribunal should be composed of arbitrators with relevant technical or legal expertise.
Article 149. Functions of Arbitral Tribunals
1. The arbitral tribunal established pursuant to Article 148:
(a) should consult with the Countries as appropriate and provide adequate opportunities for the development of a mutually satisfactory resolution;
(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 therefore; and
(d) may, apart from giving its findings, include in its award suggested implementation options for the Countries to consider in conjunction with Article 152.
2. The arbitral tribunal may seek, from the Countries, such relevant information as it considers necessary and appropriate. The Countries shall respond promptly and fully to any request by an arbitral tribunal for such information as the arbitral tribunal considers necessary and appropriate.
3. The arbitral tribunal may seek information from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter. With respect to factual issues concerning a scientific or other technical matter raised by a Country, the arbitral tribunal may request advisory reports in writing from an expert or experts. The arbitral tribunal may, at the request of a Country or on its own initiative, select, in consultation with the Countries, no fewer than two scientific or technical experts who shall assist the arbitral tribunal throughout its proceedings, but who shall not have the right to vote in respect of any decision to be made by the arbitral tribunal, including its award.
Article 150. Proceedings of Arbitral Tribunals
1. The arbitral tribunal shall meet in closed session.
2. The venue for the proceedings of the arbitral tribunal shall be decided by mutual consent of the Countries, failing which it shall alternate between the Countries.
3. The deliberations of the arbitral tribunal and the documents submitted to it shall be kept confidential.
4. Notwithstanding paragraph 3 of this Article, either Country may make public statements as to its views regarding the dispute, but shall treat as confidential, information and written submissions submitted by the other Country to the arbitral tribunal which that other Country has designated as confidential. Where a Country has provided information or written submissions designated to be confidential, the other Country may request a non- confidential summary of the information or written submissions which may be disclosed publicly. The Country to whom such a request is made may agree to such a request and submit such a summary, or refuse the request without needing to ascribe any reasons or justification.
5. The Countries shall be given the opportunity to attend any of the presentations, statements or rebuttals in the proceeding. Any information or written submissions submitted by a Country 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 Country.
6. The award of the arbitral tribunal shall be drafted without the presence of the Countries, and in the light of the information provided and the statements made.
7. The arbitral tribunal shall, within 90 days after the date of its establishment, submit to the Countries its draft award, including both descriptive part and its findings and conclusions, for the purposes of enabling the Countries to review precise aspects of the draft award. When the arbitral tribunal considers that it cannot submit its draft award within the aforementioned 90 days period, it may extend that period with the consent of the Countries. A Country 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.
8. The arbitral tribunal shall issue its award, within 30 days after the date of submission of the draft award.
9. The arbitral tribunal shall attempt to make its decisions, including its award, by consensus but may also make such decisions, including its award, by majority vote.
10. The award of the arbitral tribunal shall be final and binding on the Countries.
Article 151. Suspension and Termination of Proceedings
1. Where the Countries agree, the arbitral tribunal may suspend its work at any time for a period not to exceed 12 months. In the event of such a suspension, the time-frames set out in paragraphs 7 and 8 of Article 150 and paragraph 8 of Article 152 shall be extended by the amount of time that the work was suspended. The proceedings of the arbitral tribunal shall be resumed at any time upon the request of either Country. If the work of the arbitral tribunal has been suspended for more than 12 months, the authority for establishment of the arbitral tribunal shall lapse unless the Countries agree otherwise.
2. The Countries may agree to terminate the proceedings of the arbitral tribunal at any time before the issuance of the award to the Countries by jointly so notifying the chair of the arbitral tribunal.
Article 152. Implementation of Award
1. The Country complained against shall promptly comply with the award of the arbitral tribunal issued pursuant to Article 150.
2. The Country complained against shall, within 20 days after the date of issuance of the award, notify the complaining Country of the period of time for implementing the award. If the complaining Country considers the period of time notified to be unacceptable, it may request to the Country complained against consultations with a view to reaching a mutually satisfactory implementation period. If no satisfactory implementation period has been agreed within 20 days after the date of receipt of the request, the complaining Country may refer the matter to an arbitral tribunal.
3. If the Country complained against considers it impracticable to comply with the award within the implementation period as determined pursuant to paragraph 2 of this Article, the Country complained against shall, no later than the expiry of that implementation period, enter into consultations with the complaining Country, with a view to developing mutually satisfactory resolution, through compensation or any alternative arrangement. If no satisfactory resolution has been agreed within 20 days after the date of expiry of that implementation period, the complaining Country may notify the Country complained against that it intends to suspend the application to the Country complained against of concessions or other obligations under this Agreement.
4. If the complaining Country considers that the Country complained against has failed to comply with the award within the implementation period as determined pursuant to paragraph 2 of this Article, it may refer the matter to an arbitral tribunal.
5. If the arbitral tribunal to which the matter is referred pursuant to paragraph 4 of this Article confirms that the Country complained against has failed to comply with the award within the implementation period as determined pursuant to paragraph 2 of this Article, the complaining Country may, within 30 days after the date of such confirmation by the arbitral tribunal, notify the Country complained against that it intends to suspend the application to the Country complained against of concessions or other obligations under this Agreement.
6. Suspension of the application of concessions or other obligations under paragraphs 3 and 5 of this Article may only be implemented at least 30 days after the date of 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 an arbitral tribunal are in progress;
(b) be temporary, and be discontinued when the Countries 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 Country 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 Country set out in paragraph 3, 5 or 6 of this Article have not been met, it may request consultations with the complaining Country. The complaining Country shall enter into consultations within 10 days after the date of receipt of the request. If the Countries fail to resolve the matter within 30 days after the date of receipt of the request for consultations pursuant to this paragraph, the Country 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 and 4 of Article 148. Unless the Countries agree to a different period, such arbitral tribunal shall issue its award within 60 days after the date when the matter is referred to it. The award of the arbitral tribunal established under this Article shall be binding on the Countries.
Article 153. Expenses
Unless the Countries agree otherwise, the expenses of the arbitral tribunal, including the remuneration of its arbitrators, shall be borne by the Countries in equal shares.
Chapter 14. Final Provisions
Article 154. Table of Contents and Headings
The table of contents and headings of the Chapters and the Articles of this Agreement are inserted for convenience of reference only and shall not affect the interpretation of this Agreement.
Article 155. General Review
The Countries shall undertake a general review of the implementation and operation of this Agreement in the fifth calendar year following the calendar year in which this Agreement enters into force, and every five years thereafter, unless otherwise agreed by both Countries.
Article 156. Annexes and Notes
The Annexes and Notes to this Agreement shall form an integral part of this Agreement.
Article 157. Amendment
1. This Agreement may be amended by agreement between the Countries.
2. Such amendment shall be approved by the Countries in accordance with their respective legal procedures, and shall enter into force on the date to be agreed upon by the Countries.
3. Notwithstanding paragraph 2 of this Article, amendments relating only to Annex 2 or 3 may be made by diplomatic notes exchanged between the Governments.
4. Amendments shall not affect the rights and obligations of the Countries provided for under this Agreement until the amendments enter into force.
Article 158. Entry Into Force
This Agreement shall enter into force on the thirtieth day after the date on which the Governments exchange diplomatic notes informing each other that the legal procedures of their respective Countries necessary for entry into force of this Agreement have been completed. It shall remain in force unless terminated as provided for in Article 159.
Article 159. Termination
1. Either Country may terminate this Agreement by giving one year’s advance notice in writing to the other Country.
2. The other Country may request in writing consultations concerning any matter that would arise from the termination within 45 days after the date of receipt of the notice referred to in paragraph 1 of this Article.
3. The requested Country shall enter into consultations in good faith with a view to reaching an equitable agreement within 30 days after the date of receipt of the request referred to in paragraph 2 of this Article.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective Governments, have signed this Agreement.
DONE at Kuala Lumpur, on this thirteenth day of December in the year 2005 in duplicate in the English language.
For the Government of Japan:
For the Government of Malaysia:
Attachments
Annex 4 referred to in Chapter 7. Reservation for Existing and Future Measures
1. The Schedule of a Country sets out the reservations taken by that Country pursuant to paragraphs 1 and 2 of Article 80. The reservations with an asterisk (“*”) are related to existing measures that do not conform with obligations imposed by Article 75, Article 76, or paragraph 1 of Article 79. The reservations without an asterisk (“*”) are related to specific sectors, sub-sectors or activities for which the Country may maintain existing, or adopt new or more restrictive, measures that do not conform with obligations imposed by Article 75, Article 76, or paragraph 1 of Article 79; however, any amendment or modification of an existing measure or adoption of a new measure for sectors, sub-sectors or activities without an asterisk (“*”), shall not be more restrictive to existing investors and existing investments as defined in paragraph 4 of Article 80 than the measures applied to such investors and investments immediately before such amendment or modification or adoption, unless such sectors, sub-sectors or activities are indicated with the symbol “+”.
2. Each reservation sets out the following elements, where applicable:
(a) “Sector” refers to the general sector in which a reservation is taken;
(b) “Sub-Sector” refers to the specific sector in which a reservation is taken;
(c) “Industry Classification” refers, where applicable, to the activity covered by the reservation according to domestic or international industry classification codes;
(d) “Type of Reservation” specifies the obligation referred to in paragraph 1 for which a reservation is taken;
(e) “Level of Government” indicates the level of government maintaining the measure for which a reservation is taken;
(f) “Existing Measures” identifies the existing laws, regulations or other measures, for which the reservation is taken;
(g) “Measures Identified for Transparency Purposes” identifies, to the extent possible, only for transparency and illustrative purposes, existing measures that apply to the sector, sub-sector or activities covered by the reservation;
(h) “Description of Existing Measures” sets out, with regard to the obligation referred to in paragraph 1, the non-conforming aspects of the existing measures for which the reservation is taken; and
(i) “Description of Reservation” sets out the scope of the sector, sub-sector or activities covered by the reservation.
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 7 against which the reservation is taken, and:
(a) with respect to a reservation with an asterisk (“*”), the “Existing Measures” element shall prevail over all other elements; and
(b) with respect to a reservation without an asterisk (“*”), the “Description of Reservation” element shall prevail over all other elements.
4. For the purposes of this Annex:
(a) the term “JSIC” means Japan Standard Industrial Classification as set out in the Statistics Bureau, Ministry of Internal Affairs and Communications, revised on March 7, 2002; and
(b) the term “ISIC” means the International Standard Industrial Classification of All Economic Activities adopted, at its seventh session on 27 August 1948 and revised on 22 May 1989, by the Economic and Social Council of the United Nations. The industry classification number is for illustrative purposes.
Schedule of Japan
1 Sector: Agriculture, Forestry and Fisheries (Plant Breeder’s Right)*
Sub-Sector:
Industry Classification: JSIC 0119 Miscellaneous crop farming
JSIC 0243 Tree seed gathering and forest nursery services
JSIC 0413 Seaweed aquaculture
JSIC 0415 Seed aquaculture
Type of Reservation: National Treatment (Article 75) Most-Favoured-Nation Treatment (Article 76)
Level of Government: Central Government
Existing Measures: Seeds and Seedlings Law (Law No. 83 of 1998), Article 10
Description of Existing Measures: A foreigner who has neither a domicile nor residence (nor establishment, in the case of a legal person) in Japan cannot enjoy a plant breeder’s right or related rights except in any of the following cases:
(a) where the State of which the person is a national or the State in which the person has a domicile or residence (or its establishment, in the case of a legal person) is a contracting party to the International Convention for the Protection of New Varieties of Plants of December 2, 1961, as Revised at Geneva on November 10, 1972, on October 23, 1978, and on March 19, 1991;
(b) where the State of which the person is a national or the State in which the person has a domicile or residence (or its establishment, in the case of a legal person) is a contracting party to the International Convention for the Protection of New Varieties of Plants of December 2, 1961, as Revised at Geneva on November 10, 1972 and on October 23, 1978 (hereinafter referred to in this Annex as "the 1978 UPOV Convention"), or a State in relation with which Japan shall apply the 1978 UPOV Convention in accordance with paragraph (2) of Article 34 of the 1978 UPOV Convention, and further provides the protection for plant genus and species to which the person’s applied variety belongs; or