Title
AUSTRALIA - THAILAND FREE TRADE AGREEMENT
Preamble
Australia and the Kingdom of Thailand, hereinafter in this Agreement referred to as the "Parties";
Inspired by the traditional links of friendship and the cordial relations which exist between them, and their shared regional interests and ties;
Aware of the increasing importance of trade and investment for the future prosperity of the economies of the Asia-Pacific region;
Conscious that open, transparent and competitive markets are the key drivers of economic efficiency, innovation, wealth creation and consumer welfare;
Recognising the importance of promoting the flow of capital for economic activity and development and aware of its role in expanding economic relations between them, particularly with respect to investment by investors of one Party in the territory of the other Party;
Reaffirming their willingness to strengthen and reinforce the multilateral trading system as reflected in the World Trade Organization (WTO);
Mindful of their commitment to the Asia-Pacific Economic Cooperation (APEC) goals of free and open trade and investment;
Recalling the contribution made to the development of their bilateral trade relationship of the Trade Agreement between the Government of Australia and the Government of the Kingdom of Thailand, done at Bangkok on 5 October 1979 and the Agreement on Economic Cooperation between the Government of Australia and the Government of the Kingdom of Thailand, done at Bangkok 6 August 1990;
Further recalling the Agreement on Development Cooperation between the Government of Australia and the Government of the Kingdom of Thailand, done at Bangkok on 2 February 1989; and
Desiring to strengthen the cooperative framework for the conduct of economic
relations to ensure itis dynamic and encourages broader and deeper economic cooperation;
Have agreed as follows:
Body
Chapter 1. Objectives and Definitions
Article 101. Establishment of the Free Trade Area
The Parties hereby establish a free trade area consistent with Article XXIV of the General Agreement on Tariffs and Trade 1994 (GATT 1994) and Article V of the General Agreement on Trade in Services (GATS).
Article 102. Objectives
The objectives of the Parties in concluding this Agreement are:
(a) to liberalise trade in goods and services and to create favourable conditions for the stimulation of trade and investment flows;
(b) to build upon their commitments under the World Trade Organization and to support its efforts to create a predictable and more free and open global trading system;
(c) to establish a program of cooperative activities in support of the aims of the Agreement;
(d) to improve the efficiency and competitiveness of their economies; and
(e) to support the wider liberalisation and facilitation process in APEC and in particular the efforts of all APEC economies to meet the Bogor goals of free and open trade and investment by 2010 at the latest for industrialised economies and 2020 at the latest for developing economies.
Article 103. General Definitions
Unless otherwise defined, for the purposes of this Agreement:
(a) "Agreement" means the Australia-Thailand Free Trade Agreement;
(b) "APEC" means Asia-Pacific Economic Cooperation;
(c) "commercial presence" means any type of business or professional establishment, including through:
(i) the constitution, acquisition or maintenance of a juridical person; or
(ii) the creation or maintenance of a branch or a representative office,
within the territory of a Party for the purpose of supplying a service;
(d) "customs administration" means the competent authority that is responsible under the laws of a Party for the administration of customs laws, regulations and policies;
(e) "customs duties" includes any customs or import duty and a charge of any kind imposed in connection with the import of a good, including any form of surtax or surcharge in connection with such import, but does not include any:
(i) charge equivalent to an internal tax imposed consistently with Article III (2) of GATT 1994;
(ii) any anti-dumping or countervailing duty applied consistently with the provisions of GATT 1994, the WTO Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, and the WTO Agreement on Subsidies and Countervailing Measures; and
(iii) fee or other charge in connection with importing commensurate with the cost of services rendered;
(f) "days" means calendar days;
(g) "FTA Joint Commission" means the Free Trade Agreement Joint Commission established under Article 1701 of this Agreement;
(h) "GATS" means the General Agreement on Trade in Services, which is part of the WTO Agreement;
(i) "GATT 1994" means the General Agreement on Tariffs and Trade 1994, which is part of the WTO Agreement;
(j) "government procurement" means the process by which a government obtains the use of or acquires goods or services, or any combination thereof, for governmental purposes and not with a view to commercial sale or resale, or use in the production or supply of goods or services for commercial sale or resale;
(k) "Harmonised System" means the Harmonised Commodity Description and Coding System, including its General Rules of Interpretation, Section Notes and Chapter Notes, as adopted by the Parties in their respective tariff laws;
(l) "investment" means every kind of asset, owned or controlled, directly or indirectly, by an investor, including but not limited to the following:
(i) movable and immovable property, including rights such as mortgages, liens and other pledges;
(ii) shares, stocks, bonds and debentures and any other form of participation in a juridical person;
(iii) a claim to money or a claim to performance having economic value;
(iv) intellectual property rights, including rights with respect to copyright, patents, trademarks, trade names, industrial designs, trade secrets, know-how and goodwill;
(v) business concessions and any other rights required to conduct economic activity and having economic value conferred by law or under a contract, including concession to search for, cultivate, extract or exploit natural resources; and
(vi) returns that are invested.
For the purposes of this Agreement, any alteration of the form in which assets are invested or reinvested shall not affect their character as investments, provided that such altered investment is approved by the relevant Party if so required by its laws, regulations or policies;
(m) "investor of a Party" means:
(i) ajuridical person of a Party; or
(ii) anatural person who is a national or a permanent resident of a Party, that has made, is in the process of making, or is seeking to make an investment in the territory of the other Party;
(n) "juridical person" means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately owned or governmentally owned, including any corporation, association, trust, partnership, joint venture or sole proprietorship;
(o) a juridical person is:
(i) "owned" by persons of a Party if more than 50 percent of the equity interest in it is beneficially owned by persons of that Party;
(ii) "controlled" by persons ofa Party if such persons have the power to name a majority of its directors or otherwise to legally direct its actions;
(p) "juridical person of a Party" means a juridical person duly constituted or otherwise organised under the applicable law of the Party;
(q) "measure" includes any law, regulation, governmental procedure or requirement;
(r) "non-originating material" means a material that does not qualify as originating in accordance with the relevant provisions of Chapter 4;
(s) "originating goods" means goods that qualify as originating in accordance with the relevant provisions of Chapter 4;
(t) "Parties" means Australia and the Kingdom of Thailand;
(u) "person" means a natural person or a juridical person;
(v) "preferential tariff treatment" means the customs duty rate that is applicable to an originating good pursuant to Article 203 (3) of Chapter 2;
(w) "service supplier" means any person that supplies a service; (1)
(x) "services" includes any services in any sector or sub-sector except services supplied in the exercise of government authority;
(y) "SPS Agreement" means the Agreement on the Application of Sanitary and Phytosanitary Measures, which is part of the WTO Agreement;
(z) "TBT Agreement" means the Agreement on Technical Barriers to Trade, which is part of the WTO Agreement;
(aa) "territory" means the territory of a Party as well as the exclusive economic zone, seabed and subsoil over which the Party exercises sovereign rights or jurisdiction in accordance with international law;
(bb) "WTO" means the World Trade Organization;
(cc) "WTO Agreement" means the Marrakesh Agreement Establishing the World Trade Organization, done on 15 April 1994;
(dd) "WTO Agreement on Textiles and Clothing" means the Agreement on Textiles and Clothing, which is part of the WTO Agreement;
(ee) "WTO Customs Valuation Agreement" means the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994, which is part of the WTO Agreement; and
(ff) "WTO Safeguards Agreement" means the Agreement on Safeguards, which is part of the WTO Agreement.
Article 104. Territorial Application
The free trade area to which this Agreement applies consists of Australia and the Kingdom of Thailand.
Chapter 2. Trade In Goods
Article 201. Scope
Except as otherwise provided, this Chapter applies to trade in goods of a Party.
Article 202. National Treatment
Each Party shall accord national treatment to the goods of the other Party in accordance with Article III of GATT 1994.
Article 203. Elimination of Customs Duties
1. The provisions of this Chapter concerning the elimination of customs duties on imports shall apply to goods originating in the territory of the Parties.
2. A Party shall not increase an existing customs duty or introduce a new customs duty on imports of an originating good.
3. Except as otherwise provided in this Agreement, each Party shall progressively eliminate its customs duties on originating goods of the other Party in accordance with its Tariff Schedule at Annex 2. The base rate and the interim rate of customs duty at each stage of reduction for an item are indicated for the item in each Party's Schedule. Reductions shall occur upon entry into force of the Agreement and thereafter on 1 January of each year, as provided for in each Party's Schedule.
4. Each Party may adopt or maintain import measures to allocate in-quota imports made pursuant to a tariff quota set out in its Schedule, provided that such measures do not have trade restrictive effects on imports additional to those caused by the imposition of the tariff quota.
5. On the written request of the other Party, a Party applying or intending to apply measures pursuant to Paragraph 4 shall consult to consider a review of the administration of those measures.
Article 204. Accelerated Tariff Elimination
1. Each Party declares its readiness to eliminate its customs duties more rapidly than is provided for in Article 203 or otherwise improve the conditions of access of originating goods if its general economic situation, and the economic situation of the economic sector concerned, so permit.
2. On the request of a Party, the Parties shall consult to consider accelerating the elimination of customs duties on originating goods as set out in Annex 2.
3. Anagreement by the Parties to accelerate the elimination of customs duties on originating goods shall enter into force after the Parties have exchanged written notification advising that they have completed necessary internal legal procedures and on such date or dates as may be agreed between them.
4. A Party may at any time accelerate unilaterally the elimination of customs duties on originating goods of the other Party set out in its Schedule. A Party considering doing so shall inform the other Party as early as practicable before the new rate of customs duties takes effect.
Article 205. Administrative Fees and Formalities
Each Party shall ensure, in accordance with Article VIII (1) of GATT 1994, that all fees and charges of whatever character (other than customs duties, charges equivalent to an internal tax or other internal charge applied consistently with Article III (2) of GATT 1994, and anti-dumping and countervailing duties) imposed on or in connection with import or export are limited in amount to the approximate cost of services rendered and do not represent an indirect protection to domestic goods or a taxation on imports or exports for fiscal purposes.
Article 206. Anti-dumping Measures
1. With respect to the application of anti-dumping measures, the Parties reaffirm their commitment to the provisions of the WIO Agreement on Implementation of Article VI of GATT 1994.
2. The Parties shall observe the following practices relating to anti-dumping:
(a) on request of an exporter of the other Party, a Party's investigating authority shall make available the timeframes, procedures and any documents necessary for the offering of an undertaking. A Party's investigating authority shall extend reasonable consideration to price undertakings requested by exporters of the other Party. Furthermore, once a Party's investigating authority recommends accepting a particular price undertaking the authority shall extend that undertaking to the decision maker who shall give positive consideration to the investigative authority's recommendation to the extent possible under the Party's laws and regulations; and
(b) the timeframe to be used for determining the volume of dumped imports in the investigation or review shall be representative of the imports of both dumped and non-dumped goods, for a reasonable period, and such reasonable period shall normally be 12 months and not less than six months except in exceptional circumstances.
Article 207. Subsidies and Countervailing Measures
The Parties confirm their rights and obligations arising from the WTO Agreement on Subsidies and Countervailing Measures.
Article 208. Agricultural Export Subsidies
1. The Parties share the objective of the multilateral elimination of export subsidies for agricultural goods and shall work toward an agreement in the WTO to eliminate those subsidies and prevent the introduction in any form of any new export subsidies for agricultural goods.
2. Consistently with their rights and obligations under the WTO Agreement, neither Party shall introduce or maintain any export subsidy on any agricultural good destined for the territory of the other Party.
3. At the earliest possible time, a Party shall give to the other Party advance notice of, and if requested shall consult on, any changes to relevant policies or measures. The Parties agree to enhance communication between their appropriate officials with a view to minimising trade distortions from such policies or measures. Where the affected Party identifies an adverse impact on its agriculture and food industries, the other Party shall take that impact into consideration.
Article 209. Non-tariff Measures
1. Except as otherwise provided in this Agreement, a Party shall not adopt or maintain any prohibition or restriction on the import of any good of the other Party or on the export or sale for export of any good destined for the territory of the other Party, except in accordance with Article XI of GATT 1994.
2. Each Party shall ensure the transparency of its non-tariff measures permitted in Paragraph 1 and shall ensure that any such measures are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to trade between the Parties.
Chapter 3. Customs Procedures
Article 301. Purpose and Definitions
1. The purpose of this Chapter is to promote the objectives of this Agreement bysimplifying and harmonising customs procedures and to ensure their proper application in relation to bilateral trade between the Parties.
2. For the purposes of this Chapter, "customs procedures" means the treatment applied by the customs administration of each Party to goods which are subject to customs control.
Article 302. Scope
This Chapter shall apply, in accordance with the Parties' respective laws, regulations and policies, to customs procedures required for clearance of goods traded between the Parties.
Article 303. Customs Valuation
The Parties shall determine the customs value of goods traded between them in accordance with the provisions of Article VII of GATT 1994 and the WTO Customs Valuation Agreement.
Article 304. Customs Procedures and Facilitation
1. Customs procedures of both Parties shall conform, where possible and to the extent permitted by their respective laws, regulations and policies, to international standards and recommended practices.
2. Each Party shall ensure that its customs procedures and practices are predictable, consistent and transparent and facilitate trade.
3. The customs administrations of both Parties shall periodically review their customs procedures with a view to their further simplification and the development of further mutually beneficial arrangements to facilitate bilateral trade.
Article 305. Techniques and Use of Cooperative Arrangements
1. To the extent permitted by their laws, regulations and policies, the customs administrations of both Parties shall provide each other with mutual assistance in order to prevent breaches of customs legislation and for the protection of theeconomic, fiscal, social and commercial interests of their respective countries, including ensuring appropriate and efficient customs duty collection.
2. Each Party shall endeavour to provide the other Party with advance notice of any significant modification of laws, regulations or policies governing importations that is likely to substantially affect the operation of this Agreement.
Article 306. Review and Appeal
1. Each Party shall provide easily accessible processes for administrative and judicial review of decisions taken by its customs administration.
2. Requests for review of decisions taken by the customs administration of a Party shall be made in writing or electronically, and shall be accompanied by any information deemed useful to comply with the request.
Article 307. Advance Rulings
1. Subject to Paragraph 2, each Party shall provide, in writing, advance tariff classification rulings (hereinafter referred as "pre-classification") to a person described in Sub-paragraph 2(a).
2. Each Party shall adopt or maintain procedures for pre-classification, which shall:
(a) provide that an importer in its territory or an exporter or producer in the territory of the other Party may apply for pre-classification before the importation of goods in question;
(b) require that an applicant for pre-classification provide a detailed description of the goods and all relevant information needed to process an application for a pre-classification;
(c) provide that its customs administration may, at any time during the course of an evaluation of an application for pre-classification, request that the applicant provide additional information within a specified period;
(d) provide that pre-classification be based on the facts and circumstances presented by the applicant, and any other relevant information in the possession of the decision-maker; and
(e) provide that pre-classification be issued to the applicant expeditiously, or in any case within 30 working days of the receipt of all necessary information.
3. A Party may reject requests for pre-classification where the additional information requested by it in accordance with Sub-paragraph 2(c) is not provided within the specified period.
4. Subject to Paragraph 5, each Party shall apply a pre-classification to all importations of goods covered by the application for that pre-classification imported into its territory within five years of the date the pre-classification is issued, or such other period as required by a Party's laws, regulations or policies.
5. A Party may modify or revoke a pre-classification upon a determination that the classification was based on an error of fact or law (including human error), or if there is a change in:
(a) domestic law consistent with this Agreement; or (b) a material factor; or
(c) the circumstances on which the ruling is based.
Article 308. Treatment of Goods for Which a Certificate of Origin Has Been Issued
1. The importing Party shall facilitate the importation of goods for which a Certificate of Origin has been issued in accordance with Chapter 4 of this Agreement to the greatest extent permitted under its laws, regulations and policies. In particular, subject to Paragraphs 2 to 4, the importing Party shall not dispute the customs duty payable on such goods at the time of importation or entry for home consumption, provided they are imported and entered in accordance with the relevant Certificate of Origin.
2. Toensure the requirements of Paragraph 1 are met, the importing Party may request the presentation of the Certificate of Origin issued for goods. The customs administration of the importing Party may require the deposit of a security, including a cash security, up to the amount which would be payable on the goods if they did not qualify for preferential tariff treatment.
3. Paragraph 1 does not prevent the importing Party from disputing the customs duty payable on the goods referred to in that Paragraph after the goods have entered for home consumption, in accordance with its laws, regulations and policies.
4. Paragraph 1 does not apply where any goods previously traded by the importer, exporter or producer of the imported goods, or by any person associated with that importer, exporter or producer, are the subject of current verification action, or have been denied preferential tariff treatment, in accordance with Chapter 4 of this Agreement.
5. Where a dispute arises between the Parties as to:
(a) the valuation or the tariff classification of goods for which a Certificate of Origin has been issued in accordance with Chapter 4 of this Agreement; or