Article 73 of the Constitution of India read with Article 246 of the Constitution of India.
Petroleum Act, 1934, and rules, regulations, notifications issued thereunder.
The Oilfields (Regulations and Development) Act, 1948 and tules and regulations thereunder.
The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 and policies, rules, regulations, notifications, circulars, guidelines, press notes, made thereunder.
The Petroleum and Natural Gas Regulatory Board Act, 2006 and policies, rules, regulations, notifications, circulars, guidelines, press notes, made thereunder.
The Explosives Act, 1884 and policies, rules, regulations, notifications, circulars, guidelines, press notes, made thereunder.
Government Policy - Press Note 4 (2006) and Press Note 5(2008)
Article 19.
Sector: All Services Sectors
Sub-Sector
Industrial Classification
Type of Reservation: National Treatment (Article 10.3) Performance Requirement (Article 10.5), Senior Management and Boards of Directors (Article 10.6)
Description:
India reserves the right to maintain any measure relating to investments in services sectors subject to the condition that they do not violate the obligations under the Services Chapter.
Reservation Measure:
Any existing or current regulations or measures in force on the date of entry of this Agreement.
Article 20.
Sector: All Sectors
Sub-Sector
Industrial Classification
Type of Reservation: Performance Requirement (Article 10.5), Senior Management and Boards of Directors (Article 10.6)
Description:
Any existing measures framed by the State Governments are not subject to either PR or SMBD obligations derived from the Articles in the investment chapter.
Reservation Measure:
Any existing or current regulations or measures in force on the Measure date of entry of this Agreement.
Annex II. EXPLANATORY NOTES
1, Pursuant to Articles 10.8 (Non-Conforming Measures), the Schedule of a Party to this Annex sets out, the specific sectors, sub-sectors, or activities for which that Party may maintain existing, or adopt new or more restrictive, measures that do not conform with obligations imposed by:
(a) Article 10.3 (National Treatment);
(b) Article 10.5 (Performance Requirements); or
(c) Article 10.6 (Senior Management and Boards of Directors).
2. Where appropriate, reservations are referenced to the ISIC classification (ISIC Rev. 3.1) as set out in Statistical Office of the United Nations Statistical Papers. Where appropriate ISIC code is not available for sectors or sub-sectors, for India, those reservations may be referenced to the National Industrial Classification Code (NIC) 1987 as set out by the Central Statistical Organization of the Government of India as alternatives. And, for Korea, those reservations may be referenced to the Korea Standard Industry Code (KSIC 2000) as set out by the Korea National Statistical Office as alternatives.
3. Each Schedule entry sets out the following elements:
(a) Sector refers to the sector for which the entry is made;
(b) Sub-Sector refers to the specific sector in which the reservation is taken;
(c) Industrial Classification refers, where applicable, to the activity covered by the reservation according to the UN ISIC code (ISIC Rev.3.1) or domestic industry classification codes (National Industrial Classification Code 1987, Korea Standard Industry Code 2000);
(d) Type of Reservation specifies the obligation (National Treatment, Performance Requirement and Senior Management and Board of Directors) for which a reservation is taken;
(e) Existing Measures identifies, for transparency purposes, existing measures that apply to the sectors, sub-sectors, or activities covered by the entry; and
(f) Description sets out the scope of the sectors, sub-sectors, or activities covered by the entry.
4. In the interpretation of a Schedule entry, all elements of the entry, with the exception of Industry Classification, shall be considered. The Description element shall prevail over all other elements.
5. For Korea, foreign person means a foreign national or an enterprise organized under the laws of another country. For India, a non-resident means a person who is not resident in India and includes a body corporate registered or incorporated outside India.
6. Regarding commitments on supply of services through commercial presence, only the Schedule of Specific Commitments annexed to Chapter 6 on Trade in Services will apply. For greater certainty, Articles 10.5 (Performance Requirements) and 10.6 (Senior Management and Board of Directors) in Chapter 10 on Investment will not be applicable to Services Sector. Commitments in the form of Reservations on Articles 10.3 (National Treatment), 10.5 (Performance Requirements) and 10.6 (Senior Management and Board of Directors) for investments other than those for supply of a service through commercial presence are described only in Annex I and Annex II to Chapter 10 (Investment). In the event of any inconsistency between the commitments in the form of Reservations under the Chapter 10 on Investment and the specific commitments made under the Chapter 6 on Trade in Services, the provision in the Chapter on Trade in Services shall prevail to the extent of the inconsistency.
7. For Korea, the reservation entry No. 8, 10, 14,15,16,17,19,20,23 and 24 will not apply to services activity under the respective sectors.
Annex II. Schedule of Korea
Article 1.
Sector: All Sectors
Sub-Sector
Industry Classification
Type of Reservation: National Treatment (Article 10.3) Performance Requirements (Article 10.5)
Description:
1. Korea reserves the right to adopt, with respect to the establishment or acquisition of an investment, any measure that is necessary for the maintenance of public order pursuant to Article 4 of the Foreign Investment Promotion Act (2008) and Article 5 of the Enforcement Decree of the Foreign Investment Promotion Act (2008), provided that Korea promptly provides written notice to India that it has adopted such a measure and that the measure:
(a) is applied in accordance with the procedural requirements set out in the Foreign Investment Promotion Act (2008), Enforcement Decree of the Foreign Investment Promotion Act (2008), and other applicable law;
(b) is adopted or maintained only where the investment poses a genuine and sufficiently serious threat to the fundamental interests of society;
(c) is not applied in an arbitrary or unjustifiable manner;
(d) does not constitute a disguised restriction on investment; and
(e) is proportional to the objective it seeks to achieve.
2. Without prejudice to any claim that may be submitted to arbitration pursuant to Article 21(Settlement of Disputes between a party and an Investor of the other party), a claimant may submit to arbitration under Section C of Chapter 10 (Investment) a claim that:
(a) Korea has adopted a measure for which it has provided notice pursuant to paragraph 1; and
(b) the claimant or, as the case may be, an enterprise of Korea that is a juridical person that the claimant owns or controls directly or indirectly, has incurred loss or damage by reason of, or arising out of, the measure.
In the event of such a claim, Section C of Chapter 10 (Investment) shall apply, mutatis mutandis, and all references in Section C of Chapter 10 (Investment) to a breach, or to an alleged breach, of an obligation under Section B of Chapter 10 (Investment) shall be understood to refer to the measure, which would constitute a breach of an obligation under Section B of Chapter 10 (Investment) but for this entry. However, no award may be made in favor of the claimant, if Korea establishes to the satisfaction of the tribunal that the measure satisfies all the conditions listed in subparagraphs (a) through (ec) of paragraph 1.
Existing Measures:
Foreign Investment Promotion Act (Law No. 9071, March 28, 2008), Article 4
Enforcement Decree of the Foreign Investment Promotion Act (Presidential Decree No. 21098, October 29, 2008), Article 5
Article 2.
Sector: All sectors
Sub-Sector: Defense industry
Industry Classification:
Type of Reservation: National Treatment (Article 10.3) Performance Requirements (Article 10.5), Senior Management and Boards of Directors (Article 10.6)
Description:
Korea reserves the right to adopt or maintain any measure with respect to cross border trade in services and investments in the defense industry.
Foreign investors (stipulated in the Article 2 of the Foreign Investment Promotion Act) who intends to acquire the outstanding shares of defense industry(the enterprise stipulated in Article 3 of the Act on Defense Acquisition Program) other than the newly issued ones shall obtain a prior permission from the Minister of Knowledge Economy.
Existing Measure:
Law No. 9071 The Article 6 of the Foreign Investment Promotion Act, Mach 28, 2008
Law No. 8852 The Article 35 of the Act on Defense Acquisition Program, February 29, 2008
Article 3.
Sector: All Sectors
Sub-Sector
Industry Classification
Type of Reservation: National Treatment (Article 10.3) Performance Requirements (Article 10.5) Senior Management and Boards of Directors (Article 10.6)
Description:
Korea reserves the right to adopt or maintain any measure with respect to the transfer or disposition of equity interests or assets held by state enterprises or governmental authorities.
Such a measure shall be implemented in accordance with the provisions of Article 10.7(Transparency).
This entry does not apply to former private enterprises that are owned by the state as a result of corporate reorganization processes.
For purposes of this entry:
A state enterprise shall include any enterprise created for the sole purpose of selling or disposing of equity interests or assets of state enterprise or governmental authorities.
Without prejudice to Korea's commitments undertaken in Annex I and Annex II, Korea reserves the right to adopt or maintain any measure with respect to the transfer to the private sector of all or any portion of services provided in the exercise of governmental authority.
Existing Measures:
Securities and Exchange Act (Law No 8985, March 21, 2008), Article 203
Article 4.
Sector: Acquisition of Land
Sub-Sector
Industry Classification
Type of Reservation: National Treatment (Article 10.3)
Description:
Korea reserves the right to adopt or maintain any measure with respect to the acquisition of land by foreign persons, except that a juridical person shall continue to be permitted to acquire land where the juridical person:
1. is not deemed foreign under Article 2 of the Foreigner's Land Acquisition Act, and
2. is deemed foreign under the Foreigner's Land Acquisition Act or is a branch of a foreign juridical person subject to approval or notification in accordance with the Foreigner's Land Acquisition Act, if the land is to be used for any of the following legitimate business purposes:
(a) land used for ordinary business activities; (b) land used for housing for senior management; and
(c) land used for fulfilling land-holding requirements stipulated by pertinent laws.
Korea reserves the right to adopt or maintain any measure with respect to the acquisition of farmland by foreign persons.
Existing Measures:
Foreigner's Land Acquisition Act (Law No. 8179, February 29, 2008), Articles 2 through 6 Farmland Act (Law No. 8852, January 29, 2008), Article 6
Article 5.
Sector: Firearms, swords, explosives, etc.
Sub-Sector Industry Classification
Type of Reservation: National Treatment (Article 10.3) Performance Requirements (Article 10.5) Senior Management and Boards of Directors (Article 10.6)
Description:
Korea reserves the right to adopt or maintain any measure with respect to the firearms, swords and explosives sector, including manufacture, use, sale, storage, transport, import, export and possession of firearms, swords and explosives.
Existing Measures:
Control of Firearms, Swords, Explosives, etc. Act Control of Shooting and Shooting Range Act.
Article 6.
Sector: Disadvantaged Groups
Sub-Sector
Industry Classification
Type of Reservation: National Treatment (Article 10.3) Performance Requirements (Article 10.5) Senior Management and Boards of Directors (Article 10.6)
Description:
Korea reserves the right to adopt or maintain any measure that accords rights or preferences to socially or economically disadvantaged groups, such as the disabled, persons who have rendered distinguished services to the state, and ethnic minorities.
Existing Measures:
None
Article 7.
Sector: National Electronic / Information System * Including the national geographical information system
Sub-Sector
Industry Classification
Type of Reservation: National Treatment (Article 10.3) Performance Requirements (Article 10.5) Senior Management and Boards of Directors (Article 10.6)
Description:
Korea reserves the right to adopt or maintain any measure affecting the administration and operation of any state-owned electronic information system that contains proprietary government information or information gathered pursuant to the regulatory functions and powers of the government.
Existing Measures:
This entry does not apply to payment and settlement systems related to financial services.
Article 8.
Sector: Social Services
Sub-Sector
Industry Classification
Type of Reservation: National Treatment (Article 10.3) Performance Requirements (Article 10.5), Senior Management and Boards of Directors (Article 10.6)
Description:
Korea reserves the right to adopt or maintain any measure with respect to the provision of law enforcement and correctional services, and the following services to the extent that they are social services established or maintained for public purposes: income security or insurance, social security or insurance, social welfare, public training, health, and child care.
Existing Measures:
None
Article 9.
Sector: All Manufacturing Sectors
Sub-Sector
Industry Classification
Type of Reservation: Performance Requirements (Article 10.5)
Description:
Korea reserves the right to adopt or maintain any measure with respect to the following measures: the obligation to recycle products and packaging materials; the submission of recycling performance plans and results; payment of applicable recycling levies.
Manufacturers who are under recycling duties and those to whom such manufacturers have entrusted their recycling duties shall follow the recycling standards for their products and packaging materials prescribed by the Minister of Environment.
Furthermore, the above persons shall submit the recycling duty performance plans and result reports each year, and shall pay the recycling levy in case of failure to satisfy the amounts of the prescribed recycling duty.
Existing Measures:
Act on the Promotion of Saving and Recycling of Resources(Law No. 8852, Feb.29, 2008), Article 16, 17, 18, 19 and 27
Act for Resource Recycling of Electrical and Electronic equipment and vehicle(Law No. 8852, Feb.29, 2008), Article 15, 16 and 17
Article 10.
Sector: Sale, maintenance and repair of low-emission motor vehicles