Submissions
8. Each Party shall have an opportunity to set out in writing the facts of its case, its arguments and counterarguments. The timetable fixed by the panel shall include precise deadlines for submissions by the Parties.
Hearings
9. The timetable fixed by the panel shall provide for at least one hearing for the Parties to present their cases to the panel. As a general rule, the timetable shall not provide more than two hearings unless the panel determines in consultation with the Parties that there are special circumstances to justify additional hearings. All presentations and statements made at hearings shall be made in the presence of the Parties.
10. The venue for hearings shall be decided by agreement between the Parties. If there is no agreement, the venue shall alternate between the capitals of the Parties with the first hearing to be held in the capital of the Responding Party.
11. Apanel shall hold its hearings in closed session unless the Parties otherwise agree. Confidentiality
12. A Party shall treat as confidential any information submitted to the panel by the other Party. Neither Party shall be precluded from disclosing its own information submitted to the Panel or from making statements of its own position available to the public, subject to protection of confidential information of the other Party. A Party shall, on request of the other Party, provide a non-confidential summary of its own information that may be disclosed to the public.
13. The panel shall treat as confidential all information submitted by the Parties. Additional Information and Technical Advice
14. The Parties shall respond promptly and fully to any request by a panel for such information as the panel considers necessary and appropriate.
15. A panel may seek information and technical advice from any individual or body which it deems appropriate. However, before doing so, the panel shall seek the views of the Parties. If the Parties agree that the panel should not seek the additional information or technical advice, the panel shall not proceed. The panel shall provide the Parties with any information or technical advice it receives and an opportunity to provide comments.
Report
16. The panel shall provide to the Parties an interim report which complies with the requirements specified in Article 20.9.4.
17. The interim report shall be provided at least 28 days before the deadline for completion of the final report. The panel shall accord adequate opportunity to the Parties to review the entirety of its interim report prior to its finalisation and shall include a discussion of any comments made by the Parties in its final report.
18. The interim and final reports of the panel shall be drafted without the presence of the Parties. Opinions expressed in any report of the panel by its individual members shall be anonymous.
19. The panel shall present its final report to the Parties within 180 days of the date of its establishment. In cases of urgency, including those relating to perishable goods, the panel shall aim to present its report to the Parties within 90 days of the date of its establishment. If the panel considers that it cannot present its final report within 180 days or, in cases of urgency, within 90 days, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will present its report.
20. A Party may, seven days after the final report of the panel is presented to the Parties or at any time thereafter, make the report publicly available, subject to the protection of any information contained in the report which the Parties have designated as confidential in accordance with paragraph 12.
Article 20.11. Suspension and Termination of Proceedings
1. The Parties may agree that the panel suspend its work at any time for a period not exceeding 365 days after the date of such agreement. Within this period, the suspended panel proceeding shall be resumed on the request of either Party. Ifthe work of the panel has been continuously suspended for more than 365 days, the authority for establishment of the panel shall lapse unless the Parties otherwise agree.
2. The Parties may agree to terminate the proceedings of a panel in the event that a mutually satisfactory solution to the dispute has been found.
3. Before the panel presents its final report to the Parties, it may at any stage of the proceedings propose to the Parties that the dispute be settled amicably.
Section Section D: Implementation Provisions
Article 20.12. Implementation
1. If a panel finds that the Responding Party has failed to carry out its obligations under this Agreement, the Responding Party shall bring itself into conformity with its obligations under this Agreement.
2. Within 30 days of the date of the presentation of the panelâs final report to the Parties, the Responding Party shall notify the Complaining Party:
(a) of its intentions with respect to implementation, including an indication of possible actions it may take to comply with the obligation in paragraph 1;
(b) whether such implementation can take place immediately; and
(c) if it is impracticable for such implementation to take place immediately, the reasonable period of time the Responding Party considers it would need to implement the findings and, if it deems appropriate, any recommendations contained in the final report.
3. If the Responding Party makes a notification under paragraph 2(c) that it is impracticable to immediately comply with the obligation in paragraph 1, it shall have a reasonable period of time to do so.
4. If a reasonable period of time is required, it shall, if possible, be agreed between the Parties. If the Parties are unable to agree on the reasonable period of time within 45 days of the date of the presentation of the panel's final report to the Parties, either Party may request that the chair of the panel determine the reasonable period of time. Unless the Parties otherwise agree, such requests shall be made no later than 120 days after the date of the presentation of the panel's final report to the Parties.
5. If a request is made in accordance with paragraph 4, the chair of the panel shall present the Parties with a report containing a determination of the reasonable period of time and the reasons for such determination within 45 days of the date of the request.
6. As a guideline, the reasonable period of time determined by the chair of the panel should not exceed 455 days from the date of the presentation of the panel's final report to the Parties. However, such reasonable period of time may be shorter or longer, depending upon the particular circumstances.
7. If the Responding Party considers that it has fully complied with the obligation in paragraph 1, it shall so notify the Complaining Party. The Responding Party shall include a description of any measures it has taken to comply and the text of the measure, if any.
Article 20.13. Compliance Review
1. If the Parties disagree on the existence or consistency with this Agreement of measures taken to comply with the obligation in Article 20.12.1, such dispute shall be decided through recourse to a panel reconvened for this purpose (Compliance Review Panel). (4) Unless otherwise specified in this Chapter, a Compliance Review Panel may be convened at the request of either Party.
2. Such request may only be made after the earlier of either:
(a) the expiry of the reasonable period of time; or
(b) a notification to the Complaining Party by the Responding Party that it has complied with the obligation in Article 20.12.1.
3. A Compliance Review Panel shall make an objective assessment of the matter before it, including an objective assessment of:
(a) the factual aspects of any implementation action taken by the Responding Party; and
(b) whether the Responding Party has complied with the obligation in Article 20.12.1.
4. The Compliance Review Panel shall set out in its report:
(a) a descriptive section summarising the arguments of the Parties;
(b) its findings on the factual aspects of the case;
(c) its findings on whether the Responding Party has complied with the obligation in Article 20.12.1; and
(d) its reasons for its findings in subparagraphs (b) and (c).
5. The Compliance Review Panel shall, if possible, provide its interim report to the Parties within 75 days of the date it reconvenes and its final report 15 days thereafter. If the Compliance Review Panel considers that it cannot provide either report within the relevant timeframe, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will submit the report.
6. If a panel is requested to reconvene in accordance with paragraph 1, it shall reconvene within 15 days of the date of the request. The period from the date of the request for the panel to reconvene to the submission of the panel's final report shall not exceed 120 days, unless Article 20.8.12 applies or the Parties otherwise agree.
Article 20.14. Compensation and Suspension of Concessions or other Obligations
1. Compensation and the suspension of concessions or other obligations are temporary measures available in the event that the Responding Party does not comply with the obligation in Article 20.12.1. However, neither compensation nor the suspension of concessions or other obligations is preferred to compliance with the obligation in Article 20.12.1. Compensation is voluntary and, if granted, shall be consistent with this Agreement.
2. If any of the following circumstances exist:
(a) the Responding Party has notified the Complaining Party that it does not intend to comply with the obligation in Article 20.12.1;
(b) the Responding Party fails to provide a notification in accordance with Article 20.12.2; or
(c) a failure to comply with the obligation in Article 20.12.1 has been established in accordance with Article 20.13,
the Responding Party shall, if so requested by the Complaining Party, enter into negotiations with a view to developing mutually acceptable compensation.
3. If the Parties have:
(a) been unable to agree on compensation within 30 days of the date of receipt of the request made under paragraph 2; or
(b) agreed on compensation but the Complaining Party considers that the Responding Party has failed to observe the terms of the agreement,
the Complaining Party may at any time thereafter notify the Responding Party that it intends to suspend the application to the Responding Party of concessions or other obligations equivalent to the level of nullification or impairment, and shall have the right to begin suspending concessions or other obligations 30 days after the date of receipt of such notification. Without prejudice to its right to begin suspending concessions or other obligations, if the Complaining Party makes a notification in the circumstances referred to in paragraph (b), it shall afford the Responding Party an opportunity to demonstrate that it has complied with the terms of the agreement.
4. The right to suspend concessions or other obligations arising under paragraph 3 shall not be exercised if:
(a) a review is being undertaken in accordance with paragraph 8; or
(b) a mutually agreed solution has been reached.
5. A notification made under paragraph 3 shall specify the level of concessions or other obligations that the Complaining Party proposes to suspend, and the relevant Chapter and sector(s) to which the concessions or other obligations are related.
6. In considering what concessions or other obligations to suspend, the Complaining Party shall apply the following principles:
(a) the Complaining Party should first seek to suspend concessions or other obligations in the same sector(s) as that affected by the measure; and
(b) the Complaining Party may suspend concessions or other obligations in other sectors if it considers that it is not practicable or effective to suspend concessions or other obligations in the same sector(s).
7. The level of the suspension of concessions or other obligations shall be equivalent to the level of nullification and impairment.
8. Within 30 days of the date of receipt of a notification made under paragraph 3, if the Responding Party objects to the level of suspension proposed or considers that the principles set forth in paragraph 6 have not been followed, the Responding Party may request the panel to reconvene to make findings on the matter. The panel shall provide its findings to the Parties within 30 days of the date it reconvenes. Ifa panel is requested to reconvene in accordance with this paragraph, it shall reconvene within 15 days of the date of the request, unless Article 20.8.12 applies.
Article 20.15. Post-Suspension Review
1. The suspension of concessions or other obligations shall be temporary and shall only be applied until such time as the obligation in Article 20.12.1 has been complied with or a mutually satisfactory solution is reached.
2. If the right to suspend concessions or other obligations has been exercised under Article 20.14, and if the Responding Party considers that:
(a) the level of concessions or other obligations actually suspended by the Complaining Party exceeds the level authorised under Article 20.14.8; or
(b) it has complied with the obligation in Article 20.12.1,
it may request the Compliance Review Panel to reconvene to examine the matter. (5)
3. Paragraphs 3 through 5 of Article 20.13 shall apply if the Compliance Review Panel reconvenes in accordance with paragraph 2.
4. If the Compliance Review Panel reconvened in accordance with paragraph 2 finds that the Responding Party has complied with the obligation in Article 20.12.1, the Complaining Party shall stop the suspension of concessions or other obligations.
Section Section E: Final Provisions
Article 20.16. Expenses
1. Unless the Parties otherwise agree, each Party to a dispute shall bear the costs of its appointed panellist and its own expenses and legal costs.
2. Unless the Parties otherwise agree, the costs of the chair of the panel and other expenses associated with the conduct of the proceedings shall be borne in equal parts by the Parties to the dispute.
Article 20.17. Transmission of Documents
Any request, written submission or other document relating to any proceedings pursuant to this Chapter shall be delivered to the relevant Party through its designated contact point, in accordance with Article 18.6 (Contact Points) of Chapter 18 (Institutional Provisions), who shall provide confirmation of receipt of such documents in writing.
Article 20.18. Language
1. All proceedings pursuant to this Chapter shall be conducted in the English language.
2. Any document submitted for use in any proceedings pursuant to this Chapter shall be in the English language. If any original document is not in the English language, a Party submitting it for use in the proceedings shall provide an English language translation of that document.
Chapter 21. FINAL PROVISIONS
Article 21.1. Annexes, Appendices and Footnotes
The Annexes, Appendices and footnotes to this Agreement shall constitute an integral part of this Agreement.
Article 21.2. Amendments
1. this Agreement May Be Amended by Written Agreement between the Parties.
2. such Amendments Shall Enter Into Force In Accordance with the Same Procedure as provided for in Article 21.4 (Entry into Force), or as otherwise agreed by the Parties.
3. The Parties understand that, without prejudice to the necessary internal requirements of each Party, amendments relating only to Appendix 4-A (Procedures for Issuing Certificates of Origin) and Appendix 4-B (Procedures for Making Declarations of Origin) may be made by diplomatic notes exchanged between the Parties.
Article 21.3. Amendment of International Agreements
If any international agreement, or a provision therein, referred to in this Agreement or incorporated into this Agreement is amended, the Parties shall, on request, consult on whether it is necessary to amend this Agreement, unless this Agreement provides otherwise.
Article 21.4. Entry Into Force
This Agreement shall enter into force 60 days after the date on which the Parties exchange written notifications through diplomatic channels that they have completed their respective necessary internal requirements, or on such other date as the Parties may agree.
Article 21.5. General Review of the Agreement
1. In accordance with Article 18.2.1 (c) (Functions of the Joint Committee) of Chapter 18 (Institutional Provisions), the Joint Committee shall undertake a general review of this Agreement five years after the date of entry into force of this Agreement, and then every five years after that, with a view to updating and enhancing this Agreement to further its objectives, through negotiations, as appropriate. The review shall include, but not be limited to, consideration of deepening liberalisation, reducing or eliminating remaining discrimination and further expanding market access.
2. In conducting a review under this Article, the Joint Committee shall take into account:
(a) the work of all committees and subsidiary bodies established under this Agreement;
(b) relevant developments in international fora; and
(c) as appropriate, input from experts.
Article 21.6. Termination
Either Party may terminate this Agreement by giving 180 days advance notice in writing to the other Party.
Article 21.7. Authentic Texts
This Agreement is done in duplicate in the Indonesian and English languages. Both texts of this Agreement shall be equally authentic.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective Governments, have signed this Agreement.
DONE at Jakarta, on this 4th day of March in the year 2019, in duplicate in the English and Indonesian languages.
FOR THE GOVERNMENT OF THE REPUBLIC OF INDONESIA:
FOR THE GOVERNMENT OF AUSTRALIA:
ANNEX I. EXPLANATORY NOTES
1. The Schedule of a Party to this Annex sets out, in accordance with Article 9.7 (Non-Conforming Measures) and Article 14.14 (Non-Conforming Measures), a Party’s existing measures that are not subject to some or all of the obligations imposed by:
(a) Article 9.3 (National Treatment) or Article 14.4 (National Treatment);
(b) Article 9.4 (Most-Favoured-Nation Treatment) or Article 14.5 (Most-Favoured-Nation Treatment);
(c) Article 9.5 (Market Access);
(d) Article 9.6 (Local Presence)
(e) Article 14.6 (Prohibition of Performance Requirements); or
(f) Article 14.10 (Senior Management and Boards of Directors);
2. Each Schedule entry sets out the following elements:
(a) Sector refers to the sector for which the entry is made;
(b) Sub-Sector, where referenced, refers to the specific sub-sector for which the entry is made;
(c) Industry Classification, where referenced, refers to the activity covered by the non-conforming measure, according to the provisional CPC codes as used in the Provisional Central Product Classification (Statistical Papers Series M No. 77, Department of International Economic and Social Affairs, Statistical Office of the United Nations, New York, 1991);
(d) Obligations Concerned specifies the obligations referred to in paragraph 1 that, in accordance with Article 14.14 (Non-Conforming Measures) and Article 9.7 (Non-Conforming Measures), do not apply to the listed measure(s);
(e) Level of Government indicates the level of government maintaining the listed measures;
(f) Source of Measure identifies the laws, regulations or other measures for which the entry is made. A measure cited in the “Source of Measure” element:
(i) means the measure as amended, continued or renewed as of the date of entry into force of this Agreement, and
(ii) includes any subordinate measure adopted or maintained under the authority of, and consistent with, the measure; and
(g) Description sets out the non-conforming measure for which the entry is made.
3. A measure that is reserved against Article 9.6 (Local Presence) need not be reserved against Article 9.3 (National Treatment).
4. Article 14.6 (Prohibition of Performance Requirements) and Article 14.10 (Senior Management and Board of Directors) are separate disciplines to Article 14.4 (National Treatment) and a measure that is only inconsistent with Article 14.6 (Prohibition of Performance Requirements) or Article 14.10 (Senior Management and Board of Directors) need not be reserved against Article 14.4 (National Treatment).
5. In accordance with Article 9.7 (Non-Conforming Measures) and Article 14.14 (Non-Conforming Measures), the articles of this Agreement specified in the Obligations Concerned element of an entry do not apply to the non-conforming measures identified in the description element of that entry.
ANNEX I. SCHEDULE OF AUSTRALIA
INTRODUCTORY NOTES
1. For greater certainty, the Description element of each of Australia’s entries in its Schedule is to be interpreted in accordance with the relevant cited sources of the non-conforming measures.
2. Commitments on measures with respect to or relating to trade in financial services are undertaken subject to the limitations and conditions set forth in Chapter 9 (Trade in Services), Chapter 10 (Financial Services), Chapter 14 (Investment), this Section and the Schedule below.
3. Australia reserves the right to adopt or maintain non-discriminatory limitations concerning admission to the market of new financial services where such measures are required to achieve prudential objectives. Australia may determine the institutional and juridical form through which a new financial service may be supplied and may require authorisation for the supply of the service. Where authorisation to supply a new financial service is required, the authorisation may only be refused for prudential reasons.
1. Sector: All Sectors
Obligations Concerned: National Treatment (Article 9.3 and Article 14.4) Most-Favoured-Nation Treatment (Article 9.4 and Article 14.5) Senior Management and Boards of Directors (Article 14.10)
Level of Government: Central
Source of Measure: Australia’s Foreign Investment Framework, which comprises Australia’s Foreign Investment Policy, the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA); Foreign Acquisitions and Takeovers Regulation 2015 (Cth); Foreign Acquisitions and Takeovers Fees Imposition Act 2015 (Cth); Foreign Acquisitions and Takeovers Fees Imposition Regulation 2015 (Cth); Financial Sector (Shareholdings) Act 1998 (Cth); and Ministerial Statements.
Description: Trade in Services and Investment (1)
A. The following investments (2) are subject to approval by the Australian Government and may also require notification (3) to the Australian Government:
(a) a proposed investment by a ‘foreign person’* in an entity or Australian business valued above $A 266 million†;
(b) a proposed direct investment by a ‘foreign government investor’ (4) of any interest regardless of value;
(c) a proposed investment by a foreign person* of 5 per cent or more in the media sector, regardless of the value of the investment;
(d) a proposed acquisition by a foreign person* of an interest in developed commercial land (5) where the value of the interest is more than $A 266 million†, unless the land meets the conditions for the lower developed commercial land threshold of $A 58 million† (6).
Investments may be refused, subject to orders, or approved subject to conditions. Foreign persons* that do not comply with the foreign investment framework may be subject to civil and criminal penalties.
For greater certainty, where an investment could qualify for the application of one or more of the above screening thresholds, approval or notification requirements apply from the lowest applicable threshold.
Separate or additional requirements may apply to measures subject to other Annex I entries and to sectors, sub-sectors or activities subject to Annex II.
B. The acquisition of a stake in an existing financial sector company by a foreign investor, or entry into an arrangement by a foreign investor, that would lead to an unacceptable shareholding situation or to practical control (7) of an existing financial sector company, may be refused, or be subject to certain conditions (8).
* The term “foreign person” has the meaning set out in the Foreign Acquisitions and Takeovers Act 1975 (Cth) and Foreign Acquisitions and Takeovers Regulation 2015 (Cth).
† This is the figure as at 1 January 2019. To be indexed annually on 1 January.