4. The first Annual Work Program will be developed in accordance with the medium-term objectives attached to the exchange of letters constituting an agreement on economic cooperation signed between Australia and Indonesia in connection with the signing of this Agreement.
Article 15.5. Contact Points
Each Party shall designate a contact point to facilitate communication between the Parties on all matters relating to the implementation of the Annual Work Program and shall update the other Party on any changes to the details of the contact points.
Article 15.6. Resources
1. Resources for economic cooperation under this Chapter shall be provided in a manner as agreed by the Parties and in accordance with the laws and regulations of the Parties.
2. The Parties, on the basis of mutual benefit, shall consider cooperation with, and contributions from, external parties to support the implementation of the Annual Work Program.
Article 15.7. Non-Application of Chapter 20 (Consultations and Dispute Settlement)
Chapter 20 (Consultations and Dispute Settlement) shall not apply to any matter arising under this Chapter.
Article 15.8. Relation to other Chapters
This Chapter shall apply to all economic cooperation activities under this Agreement.
Chapter 16. COMPETITION
Article 16.1. Definitions
For the purposes of this Chapter, competition laws means:
(i) for Australia, the Competition and Consumer Act 2010 (Cth), and any regulations relating to Parts IV and XI A; and provisions of other Parts in so far as they relate to Part IV, but not including Part X, including their amendments and replacements; and
(ii) for Indonesia, Undang-undang Nomor 5 Tahun 1999 tentang Larangan Praktek Monopoli dan Persaingan Usaha Tidak Sehat (Law No. 5 Year 1999 concerning the Prohibition of Monopolistic Practices and Unfair Business Competition), and its related regulations, including their amendments and replacements.
Article 16.2. Objectives
The objectives of this Chapter are to promote fair competition in markets and enhance economic efficiency and consumer welfare, through the adoption and maintenance of laws to proscribe anti-competitive practices, to help secure the benefits of this Agreement and promote cooperation between the Parties on competition law enforcement.
Article 16.3. Basic Principles
Acknowledging each Party's rights and obligations under this Chapter, the Parties recognise the sovereign rights of each Party to develop, set, administer and enforce its own competition laws and regulations, and the differences in legal systems, capacity, and level of development in the area of competition policy and law.
Article 16.4. Application of Competition Laws and Regulations (1)
1. Each Party shall adopt or maintain competition laws and regulations that proscribe anti-competitive practices and shall enforce them accordingly.(2)
2. Each Party shall maintain authorities responsible for the enforcement of its competition laws and regulations.
3. Each Party shall ensure independence in decision-making by its authorities in relation to enforcement of competition laws and regulations.
4. Each Party shall apply and enforce its competition laws and regulations in a manner which does not discriminate on the basis of nationality.
5. Each Party shall apply its competition laws and regulations to all economic sectors and all entities engaged in commercial activities, (3) subject to exclusions and exemptions as provided for under its competition laws and regulations. Such exclusions and exemptions shall be transparent and undertaken on the grounds of public policy or public interests.
Article 16.5. Cooperation
The Parties agree to cooperate in a manner compatible with their respective laws, regulations, important interests, and available resources. Such cooperation may include:
(a) assistance in providing information related to competition law enforcement that involves one or both Parties, including to foster understanding or to facilitate effective competition law enforcement;
(b) discussion between the Parties on enforcement activities of interest to both Parties, or related anti-competitive activities;
(c) assistance in enforcement and litigation activities of interest to both Parties;
(d) facilitation of regular dialogue between competition authorities to foster effective implementation of respective competition laws and policies;
(e) consultation on any matter relating to competition law that substantially affects the interests of the other Party. Such consultation shall not affect the ability of each Party to independently administer or enforce its competition law; and
(f) relevant matters of mutual interest related to consumer protection.
Article 16.6. Notifications
Each Party shall, as promptly as reasonably possible, notify the competition authority of the other Party of competition enforcement activities that may affect the interests of the other Party.
Article 16.7. Transparency
1. The Parties recognise the value of making their competition law enforcement policies as transparent as possible. Each Party shall endeavour to maintain and update its information in competition law enforcement policies, including regulations, guidelines, and practices through their website.
2. On request of a Party, the other Party shall make available to the requesting Party public information on exclusions and exemptions provided by its competition laws and regulations, provided that the request specifies the particular good, service, or market of concern and includes information explaining how the exclusions or exemptions may hinder economic relations between the Parties.
Article 16.8. Procedural Fairness
1. In applying competition law, each Party shall implement administrative and judicial procedures in a transparent and fair manner.
2. Each Party shall ensure that before sanction or remedy is imposed on any person or entity for breaching its competition law, that person or entity is provided the reasons for the allegations and a fair opportunity to be heard and to present evidence.
3. Each Party shall ensure that any person or entity subject to the imposition of a sanction or a remedy under its competition law has access to an independent review or
appeal of that sanction or remedy.
4. Each Party shall endeavour to handle competition cases in a timely manner.
Article 16.9. Confidentiality of Information
1. This Chapter shall not require the sharing of information by a Party, which is contrary to the Party's laws, regulations or important interests.
2. Where a Party requests confidential information under this Chapter, the requesting Party shall notify the providing Party with:
(a) the purpose of the request;
(b) use of the requested information; and
(c) any laws or regulations of the requesting Party that may affect the confidentiality of information or require the use of the information for purposes not agreed upon by the providing Party.
3. If information shared under this Chapter is shared on a confidential basis then, except to comply with laws and regulations, the Party receiving that information shall:
(a) maintain the confidentiality of the information received;
(b) use it only for the purpose disclosed at the time of the request, unless otherwise authorised by the Party providing the information;
(c) not disclose it to any other authority, entity or person that is not authorised by the Party providing the information; and
(d) comply with any other conditions required by the Party providing the information.
Article 16.10. Consumer Protection
1. Each Party recognises the importance of consumer protection laws and enforcement as well as cooperation between the Parties on matters related to consumer protection, in order to achieve the objectives set out in Article 16.2.
2. Each Party shall adopt or maintain laws and regulations to proscribe the use in trade of misleading practices, or false or misleading descriptions.
3. Each Party also recognises the importance of improving awareness of, and access to, consumer redress mechanisms.
Article 16.11. Review
Unless the Parties otherwise agree, the Parties shall review this Chapter as part of the General Review under Article 21.5 (General Review of the Agreement) of Chapter 21 (Final Provisions), with a view to improving the provisions in relation to all entities regardless of their ownership. The Parties shall consult each other on the need to modify this Chapter as necessary through the Joint Committee established under Chapter 18 Cnstitutional Provisions).
Article 16.12. Dispute Settlement
Neither Party shall have recourse to dispute settlement under Chapter 20 (Consultations and Dispute Settlement) for any matter arising under this Chapter.
Chapter 17. GENERAL PROVISIONS AND EXCEPTIONS
Article 17.1. Confidentiality of Information
1. Nothing in this Agreement shall require a Party to furnish or allow access to information that would be contrary to its law or impede law enforcement, or otherwise be contrary to the public interest or that would prejudice the legitimate commercial interests of any particular enterprises, public or private.
2. Unless otherwise provided in this Agreement, where a Party provides information to the other Party in accordance with this Agreement and designates the information as confidential, the Party receiving the information shall maintain the confidentiality of the information. Such information shall be used only for the purposes specified, and shall not be otherwise disclosed without the specific permission of the Party providing the information, except where the disclosure of information is for the purposes of complying with the legal requirements of a Party.
Article 17.2. General Exceptions
1, For the purposes of Chapter 2 (Trade in Goods), Chapter 3 (Non-Tariff Measures), Chapter 4 (Rules of Origin), Chapter 5 (Customs Procedures), Chapter 6 (Trade Facilitation), Chapter 7 (Sanitary and Phytosanitary Measures) and Chapter 8 (Technical Barriers to Trade), Article XX of GATT 1994 is incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XX(b) of GATT 1994 include environmental measures necessary to protect human, animal or plant life or health, and that Article XX(g) of GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources and that Article XX(f) of GATT 1994 applies to measures imposed for the protection of national treasures of artistic, historic or archaeological value.
2. For the purposes of Chapter 9 (Trade in Services), Chapter 10 (Financial Services), Chapter 11 (Telecommunications), Chapter 12 (Movement of Natural Persons) and Chapter 13 (Electronic Commerce), Article XIV of GATS, including its footnotes, is incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XIV(b) of GATS include environmental measures necessary to protect human, animal or plant life or health.
3. For the purposes of Chapter 14 (Investment), subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between investments or between investors where like conditions prevail, or a disguised restriction on international trade or investment, nothing in Chapter 14 (Investment) shall be construed to prevent a Party from adopting or enforcing measures:
(a) necessary to protect public morals or to maintain public order; (1)
(b) necessary to protect human, animal or plant life or health; (2)
(c) necessary to ensure compliance with laws and regulations that are not inconsistent with this Agreement, including those relating to;
(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on services contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
(iii) safety;
(d) imposed for the protection of national treasures of artistic, historic or archaeological value; or
(e) relating to the conservation of living or non-living exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption. (3)
4. For the purposes of Chapter 9 (Trade in Services) and Chapter 14 (Investment), subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties, or between investors or between investments, where like conditions prevail, or a disguised restriction on trade in services or investment, nothing in these Chapters shall be construed to prevent the adoption or enforcement by a Party of measures necessary to protect national treasures or specific sites of historical or archaeological value, or measures necessary to support creative arts of national value. (4)
5. A Party shall hold consultations with a view to reaching agreement on any necessary adjustment required to maintain the overall balance of commitments undertaken by the Parties under Chapter 9 (Trade in Services) and Chapter 14 (Investment) if requested by a Party affected by the measures referred to in paragraph 4.
6. Nothing in this Agreement shall be construed to prevent a Party from implementing the suspension of obligations, including maintaining or increasing a customs duty, that is authorised by the Dispute Settlement Body of the WTO or resulting from a decision by a dispute settlement panel under a free trade agreement to which the Parties are party.
Article 17.3. Security Exceptions Nothing In this Agreement Shall Be Construed:
(a) to require a Party to furnish or allow access to any information the disclosure of which it considers contrary to its essential security interests; or
(b) to prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to fissionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials, or relating to the supply of services, as carried on directly or indirectly for the purpose of supplying or provisioning a military establishment;
(iii) taken so as to protect critical public infrastructure (5) which may include communications, power and water infrastructures;
(iv) taken in time of national emergency or war or other emergency in international relations; or
(c) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
Article 17.4. Taxation Measures
1. For the purposes of this Article: competent authorities means:
(i) with respect to Australia, the Secretary to the Treasury or an authorised representative of the Secretary; and
(ii) with respect to Indonesia, the Minister of Finance or his or her authorised representative.
tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement to which the Parties are party; and
taxation measures do not include any import or customs duties.
2. Unless otherwise provided in this Article, nothing in this Agreement shall apply to taxation measures.
3. This Agreement shall only grant rights or impose obligations with respect to taxation measures where:
(a) corresponding rights and obligations are also granted or imposed under the WTO Agreement;
(b) they are granted or imposed under Article 14.6 (Prohibition of Performance Requirements) of Chapter 14 (Investment);
(c) they are granted or imposed under Article 14.9 (Transfers) of Chapter 14 (Investment); or
(d) they are granted or imposed under Article 14.11 (Expropriation and Compensation) of Chapter 14 (Investment).
4. Where paragraph 3(c) or (d) applies, Section B (Investor-State Dispute Settlement) of Chapter 14 (Investment) shall also apply in respect of taxation measures.
5. Where an investor claims that the disputing Party has breached Article 14.9 (Transfers) of Chapter 14 (investment) or Article 14.11 (Expropriation and Compensation) of Chapter 14 (Investment) by the adoption or enforcement of a taxation measure, the competent authorities of the disputing Party may request consultations with the competent authorities of the non-disputing Party at the time that the disputing Party receives the investor's notice of intent under Article 14.25 (Submission of a Claim) of Chapter 14 (Investment). The competent authorities of the Parties shall hold consultations with a view to determining whether Article 14.9 (Transfers) of Chapter 14 (investment) has been breached or whether the taxation measure in question has an effect equivalent to expropriation. Any tribunal established in accordance with Section B (Investor-State Dispute Settlement) of Chapter 14 (Investment) to consider the measure, shall accept as binding the decision of the competent authorities under this paragraph.
6. If the competent authorities of the Parties fail to determine whether Article 14.9 (Transfers) of Chapter 14 (Investment) has been breached or whether the taxation measure has an effect equivalent to expropriation within 360 days of the date of receipt of the request for consultations by the non-disputing Party, the investor may submit its claim to arbitration under Article 14.25 (Submission of a Claim) of Chapter 14 (Investment).
7. The time period under Article 14.26 (Conditions and Limitations on Submission of a Claim) of Chapter 14 (Investment) shall be suspended during the 360 day period under paragraph 6. For greater certainty, this time period shall not be counted as part of the time limit in Article 14.26.1 (Conditions and Limitations on Submission of a Claim) of Chapter 14 (Investment).
8. Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention. In the event of any inconsistency relating to a taxation measure between this Agreement and any such tax convention, the latter shall prevail. Any consultations between the Parties about whether an inconsistency relates to a taxation measure shall be done by the competent authorities.
9. If an issue arises as to whether any inconsistency exists between this Agreement and any applicable tax convention in the context of proceedings under Chapter 20 (Consultations and Dispute Settlement) or Section B (Investor-State Dispute Settlement) of Chapter 14 (Investment), the issue shall be referred to the competent authorities of the Parties. The competent authorities of the Parties shall have 180 days from the date of referral of the issue to make a determination as to the existence and extent of any inconsistency. If the competent authorities agree, such a period may be extended. No procedure concerning the measure giving rise to the issue may continue under Chapter 20 (Consultations and Dispute Settlement) or Chapter 14 (Investment) until the expiry of the 180 day period, or such other period as may have been agreed by the competent authorities. Any panel or tribunal established under this Agreement to consider a dispute which may contain any inconsistency between this Agreement and any applicable tax convention shall accept as binding a determination of the competent authorities of the Parties made under this paragraph.
10. Nothing in this Agreement shall oblige a Party to extend to the other Party the benefit of any treatment, preference or privilege arising from any tax convention by which the Party is bound.
Article 17.5. Measures to Safeguard the Balance of Payments
1. Where a Party is in serious balance of payments and external financial difficulties or under threat thereof, it may:
(a) in the case of trade in goods, in accordance with GATT 1994 and the Understanding on Balance-of-Payments Provisions of the General Agreement on Tariffs and Trade 1994 in Annex 1A to the WTO Agreement, adopt restrictive import measures;
(b) in the case of trade in services, where a Party is in serious balance of payments and external financial difficulties or under threat thereof or if, in exceptional circumstances, payments and capital movements cause or threaten to cause serious difficulties for macroeconomic management, adopt or maintain restrictions on payments or capital movements related to trade in services;
(c) in the case of investments, where a Party is in serious balance of payments and external financial difficulties or under threat thereof or if, in exceptional circumstances, payments and capital movements cause or threaten to cause serious difficulties for macroeconomic management, adopt or maintain restrictions on payments or capital movements related to covered investments as defined in Article 2.4 of Chapter 2 (Initial Provisions and General Definitions).
2. Restrictions adopted or maintained under paragraphs 1(b) and 1(c) shall:
(a) be consistent with the Articles of Agreement of the International Monetary Fund;
(b) avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(c) not exceed those necessary to deal with the circumstances described in paragraph 1;
(d) be temporary and phased out progressively as the situation specified in paragraph | improves;
(e) be applied on a national treatment basis;
(f) ensure that the other Party is treated as favourably as any non-Party;
(g) not constitute a dual or multiple exchange rate practice; and
(h) not restrict payments or transfers for current transactions, unless the imposition of such measures complies with the procedures stipulated in the Articles of Agreement of the International Monetary Fund.
3. Any restrictions adopted or maintained by a Party under paragraph 1, or any changes therein, shall be notified promptly to the other Party.
4. A Party adopting or maintaining any restrictions under paragraph 1 shall:
(a) in the case of trade in services, if consultations in relation to the restrictions adopted by it are not taking place at the WTO, if requested, promptly commence consultations with the other Party;
(b) in the case of investment, respond to the other Party that requests consultations in relation to the restrictions adopted by it, if such consultations are not otherwise taking place outside this Agreement.
Chapter 18. INSTITUTIONAL PROVISIONS
Article 18.1. Establishment of the Joint Committee
1. The Parties hereby establish the Joint Committee (Joint Committee) consisting of representatives of each Party.
2. The Joint Committee shall meet at the level of Ministers, unless the Parties otherwise agree.
3. Further to paragraph 2, if the Joint Committee meets at the level of Ministers, it shall be preceded by a Senior Officials level meeting.
Article 18.2. Functions of the Joint Committee
1. The Joint Committee shall:
(a) consider any matter related to the implementation and operation of this Agreement;
(b) consider any proposals to amend this Agreement; (c) review this Agreement five years after the date of entry into force of this Agreement and then every five years thereafter, in accordance with Article 21.5 (General Review of the Agreement) of Chapter 21 (Final Provisions);
(d) supervise the work of all committees and any other subsidiary bodies established under this Agreement;
(e) consider ways to further enhance trade and investment between the Parties; and
(f) carry out any other functions as the Parties may agree.
2. The Joint Committee may:
(a) refer matters to, or consider matters referred to it by, committees and subsidiary bodies established under this Agreement;
(b) develop implementing arrangements for the implementation of this Agreement;
(c) seek to resolve differences that may arise regarding the interpretation or application of this Agreement;
(d) seek expert advice on any matter falling within the Joint Committee's responsibilities; and