4. Each Party shall base risk management on the risk assessment through appropriate selectivity criteria. Such selectivity criteria may include, inter alia, HS code, nature and description of the goods, country of origin, country from which the goods were shipped, value of the goods, compliance record of traders, and type of means of transport.
5. The customs administration of each Party shall exchange best practices on risk management techniques. Article 4.12: Post-clearance Audit 1. With a view to expediting the release of goods, each Party shall adopt or maintain post-clearance audit to ensure compliance with its customs and other related laws and regulations. 2. Each Party shall select a person or a consignment for post-clearance audit in a risk-based manner, which may include appropriate selectivity criteria. Each Party shall conduct post-clearance audits in a transparent manner. Where the person is involved in the audit process and conclusive results have been achieved, the Party shall, without delay, notify the person whose record was audited of the:
(a) tesults;
(b) reasons for the results; and
(c) personâs rights and obligations.
3. The Parties acknowledge that the information obtained in post- clearance audit may be used in further administrative or judicial proceedings.
4. Each Party shall, wherever practicable, use the result of post- clearance audit in applying risk management.
Article 4.13. Time Release Studies1. Each Party Is Encouraged to Measure the Time Required for the Release
of goods by its customs administration periodically and in a consistent manner, and to publish the findings thereof, using tools such as the Guide to Measure
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the Time Required for the Release of Goods issued by the World Customs Organization with a view to:
(a) assessing its trade facilitation measures; and
(b) considering opportunities for further improvement of the time required for the release of goods.
2. Each Party is encouraged to share its experiences in the time release studies referred to in paragraph 1, including methodologies used and bottlenecks identified.
Article 4.14. Review and Appeal
1. Each Party shall provide that any person to whom its customs administration issues an administrative decisionâ has the right, within its territory, to:
(a) an administrative appeal to or review by an administrative authority higher than or independent of the official or office that issued the decision; and
(b) a judicial appeal or review of the decision.
2. Each Party shall allow an exporter or producer to provide information directly to the Party conducting the review and to request that Party to treat that information as confidential in accordance with Article 4.15.
Article 4.15. Confidentiality
Where a Party provides information to the other Party and designates the information as confidential, the Party receiving the information shall maintain the confidentiality of the information, in accordance with its laws and regulations.
* For purposes of this Article, âadministrative decisionâ means a decision with a legal effect that affects the rights and obligations of a specific person in an individual case. It shall be understood that an administrative decision referred to in this Article covers an administrative action within the meaning of Article X of GATT 1994 or failure to take an administrative action or decision as provided for in a Partyâs laws and regulations and legal system. For addressing such failure, a Party may maintain an alternative administrative mechanism or judicial recourse to direct the customs administration to promptly issue an administrative decision in place of the right to appeal or review under subparagraph 1(a).
Article 4.16. Customs Cooperation
1. The customs administration of both Parties may, as deemed appropriate, assist each other, in relation to:
(a) the implementation and operation of this Chapter;
(b) developing and implementing customs best practice and risk management techniques;
(c) simplifying and harmonizing customs procedures; (d) advancing technical skills and the use of technology; (e) application of the WTO Customs Valuation Agreement;
ff) exchanging FTA implementation statistics, formats and types of which are to be mutually agreed by both Parties; and
(g) such other customs issues as the Parties may mutually determine.
2. The customs administration of both Parties may, as deemed appropriate, share information and experiences on development of customs administration.
3. Each Party shall, to the extent possible, provide the other Party with timely notice of any significant administrative change, modification of laws or regulations, or similar measures related to its laws or regulations that govern importations or exportations, that is likely to substantially affect the operation of this Chapter. The notice can be made in the English language or the Partyâs language and will be provided to the contact point designated pursuant to Article 4.17.
Article 4.17. Consultation and Contact Points
1. The customs administration of each Party may at any time request consultations with the customs administration of the other Party on any significant matter arising from the implementation or operation of this Chapter, in cases where there are reasonable grounds or truth provided by the requesting Party.
2. In the event that such consultations fail to resolve any such matter, the
requesting Party may refer the matter to the Committee on Rules of Origin and Customs Procedures referred to in Article 4.18 for further consideration.
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3. Each customs administration shall designate one or more contact points for purposes of this Chapter. Information on the contact points shall be provided to the other Party and any amendment of the said information shall be notified promptly.
Article 4.18. Committee on Rules of Origin and Customs Procedures
1. The Parties hereby establish a Committee on Rules of Origin and Customs Procedures (hereinafter referred to as the âCommitteeâ) composed of representativesâ designated by each Party.
2. The Committee shall ensure the proper functioning of this Chapter and Chapter Three (Rules of Origin) and examine all the issues arising from the application of these Chapters.
3. The functions of the Committee may include:
(a) reviewing, discussing, proposing and making appropriate recommendations to the Joint Committee, as necessary, on:
6D) the effective, uniform and consistent administration of this Chapter and Chapter Three (Rules of Origin); including their interpretations and applications, and the enhancement of cooperation in relation to these Chapters; and
ii) revising Annex 3-A (Product Specific Rules) on the basis of the transposition of the Harmonized System (hereinafter referred to as the âHSâ).
(b) consulting on and endeavouring to resolve any difference that may arise between the Parties on matters related to the classification of goods under the HS and interpretation of this Chapter and Chapter Three (Rules of Origin);
(c) reviewing the possibility of revision and reaching agreement on revision of this Chapter and Chapter Three (Rules of Origin); and
(d) dealing with other matters referred to the Committee by the Joint Committee.
5 For Korea, the representative will be Koreaâs customs administration. For Cambodia, there shall be co-leads representing ROO and CPTF.
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4. The Committee shall meet every year, or as otherwise agreed, alternating between the Parties.
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Chapter CHAPTER FIVE TRADE REMEDIES
Section Section a: Safeguard Measures
Article 5.1. Definitions for Purposes of this Section:
domestic industry means, with respect to an imported good, the producers as a whole of the like or directly competitive good operating in the territory of a Party, or those producers whose collective output of the like or directly competitive good constitutes a major proportion of the total domestic production of that good;
safeguard measure means a measure described in Article 5.2;
serious injury means a significant overall impairment in the position of a domestic industry;
threat of serious injury means serious injury that, on the basis of facts and not merely on allegation, conjecture, or remote possibility, is clearly imminent; and
transition period means, in relation to a particular good, the period from the date of entry into force of this Agreement until three years after the date of completion of tariff reduction or elimination in accordance with that Partyâs Schedule of tariff commitments in Annex 2-A (Reduction or Elimination of Customs Duties).
Article 5.2. Application of a Safeguard Measure
1. If, as a result of the reduction or elimination of a customs duty under this Agreement, an originating good of the other Party is being imported into the territory of a Party in such increased quantities, in absolute terms or relative to domestic production, and under such conditions so as to substantially cause serious injury or threat of serious injury to the domestic industry producing a like or directly competitive good, the Party may, to the extent necessary to prevent or remedy the serious injury to its domestic industry and to facilitate its domestic industryâs adjustment:
(a) suspend the further reduction of any rate of customs duty on the good provided for under this Agreement; or
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(b) increase the rate of customs duty on the good to a level not to exceed the lesser of:
G) âthe most-favored-nation (MFN) applied rate of customs duty on the good in effect at the time the safeguard measure is taken; or
Gi) the base rate of customs duty specified in the Schedules included in Annex 2-A (Reduction or Elimination of Customs Duties) pursuant to Article 2.4 (Reduction or Elimination of Customs Duties).
2. The Parties understand that neither tariff rate quotas nor quantitative restrictions are permissible forms of a safeguard measure.
Article 5.3. Conditions and Limitations
1. A Party shall notify the other Party in writing on initiation of an investigation described in paragraph 2 and shall consult with the other Party as far in advance as practicable prior to applying a safeguard measure, with a view to reviewing the information arising from the investigation and exchanging views on the safeguard measure.
2. A Party shall apply a safeguard measure only following an investigation by the Partyâs competent authorities in accordance with Articles 3 and 4.2(c) of the Safeguards Agreement, and to this end, Articles 3 and 4.2(c) of the Safeguards Agreement are incorporated into and made a part of this Agreement, mutatis mutandis.
3. In the investigation described in paragraph 2, the Party shall comply with the requirements of Article 4.2(a) of the Safeguards Agreement, and to this end, Article 4.2(a) of the Safeguards Agreement is incorporated into and made a part of this Agreement, mutatis mutandis.
4. Each Party shall ensure that its competent authorities complete any such investigation within one year of its date of initiation.
5. Neither Party shall apply a safeguard measure:
(a) except to the extent, and for such time, as may be necessary to prevent or remedy serious injury and to facilitate adjustment;
(b) for a period exceeding two years, except that the period may be extended by up to one year if the competent authorities of the
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importing Party determine, in conformity with the procedures specified in this Article, that the measure continues to be necessary to prevent or remedy serious injury and to facilitate adjustment and that there is evidence that the industry is adjusting, provided that the total period of application of a safeguard measure, including the period of initial application and any extension thereof, shall not exceed three years; or
(c) beyond the expiration of the transition period.
6. AParty shall not apply a safeguard measure more than once on the same good until a period of time equal to the duration of the previous safeguard measure, including any extension, has elapsed commencing from the termination of the previous safeguard measure, provided that the period of non-application is at least two years.
7. Where the expected duration of the safeguard measure is over one year, the importing Party shall progressively liberalize it at regular intervals.
8. When a Party terminates a safeguard measure, the rate of customs duty shall be the rate that, according to the Partyâs Schedule in Annex 2-A (Reduction or Elimination of Customs Duties), would have been in effect but for the safeguard measure.
Article 5.4. Provisional Safeguard Measures
1. In critical circumstances where delay would cause damage that would be difficult to repair, a Party may apply a safeguard measure, which shall take the form of the measures set out in Article 5.2.1(a) or 5.2.1(b), on a provisional basis pursuant to a preliminary determination by its competent authorities that there is clear evidence that imports of an originating good of the other Party have increased as the result of the reduction or elimination of a customs duty under this Agreement, and such imports substantially cause serious injury or threat of serious injury to the domestic industry.
2. Before a Partyâs competent authorities may make a preliminary determination, the Party shall in accordance with its domestic laws and regulations publish a public notice in its official journal setting forth how interested parties, including importers and exporters, may obtain a non- confidential copy of the application requesting a provisional safeguard measure, and shall to the extent practicable, provide interested parties adequate opportunity after the date it publishes the notice to submit evidence and views regarding the application of a provisional safeguard measure.
3. The applying Party shall notify the other Party before applying a
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safeguard measure on a provisional basis, and shall initiate consultations immediately after applying the provisional safeguard measure.
4. The duration of any provisional safeguard measure shall not exceed 200 days, during which time the Party shall comply with the requirements of Articles 5.3.2 and 5.3.3.
5. | The Party shall promptly refund any tariff increases if the investigation described in Article 5.3.2 does not result in a finding that the requirements of Article 5.2 are met. The duration of any provisional safeguard measure shall be counted as part of the period described in Article 5.3.5(b).
Article 5.5. Compensation
1. Within 30 days after a Party applies a safeguard measure, the Party shall afford an opportunity for the other Party to consult with it regarding adequate means of trade compensation in the form of concessions having substantially equivalent trade effects or equivalent to the value of the additional duties expected to result from the safeguard measure. The applying Party shall provide such compensation as the Parties mutually agree.
2. If the Parties are unable to agree on compensation through consultations under paragraph 1 within 30 days after the consultations begin, the Party against whose originating good the safeguard measure is applied may suspend the application of concessions with respect to originating goods of the applying Party that have trade effects substantially equivalent to the safeguard measure.
3. The right of suspension referred to in paragraph 2 shall not be exercised for the first two years during which the safeguard measure is in effect, provided that the safeguard measure has been taken as a result of an absolute increase in imports and that such a safeguard measure conforms to the provisions of this Section.
4, The applying Partyâs obligation to provide compensation under paragraph 1 and the other Partyâs right to suspend concessions under paragraph 2 shall terminate on the date the safeguard measure terminates.
5. | Any compensation shall be based on the total period of application of the provisional safeguard measure and of the safeguard measure.
Article 5.6. Global Safeguard Measures1. Each Party Retains Its Rights and Obligations Under Article XIX of GATT
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1994 and the Safeguards Agreement. This Agreement does not confer any additional rights or obligations on the Parties with regard to measures taken under Article XIX of GATT 1994 and the Safeguards Agreement.
2. At the request of the other Party, the Party intending to take a global safeguard measure shall provide immediately written notification of all pertinent information on the initiation of a global safeguard investigation, the preliminary determination and the final finding of the investigation.
3. Neither Party shall apply, with respect to the same good, at the same time:
(a) a provisional safeguard measure or a safeguard measure; and
(b) a measure under Article XIX of GATT 1994 and the Safeguards Agreement.
Section Section B: Anti-Dumping and Countervailing Duties
Article 5.7. General Provisions
1. Except as otherwise provided for in this Agreement, each Party retains its rights and obligations under Article VI of GATT 1994, Anti-Dumping Agreement and SCM Agreement with regard to the application of anti- dumping and countervailing duties.
2. The Parties shall ensure as soon as possible, after any imposition of provisional measures and in any case before the final determination, full and meaningful disclosure of all essential facts and considerations which form the basis for the decision to apply measures, without prejudice to Article 6.5 of the Anti-Dumping Agreement and Article 12.4 of the SCM Agreement. Disclosures shall be made in writing, and interested parties shall be allowed sufficient time to make their comments.
3. The Parties shall observe the following practices in anti-dumping or countervailing cases between them in order to enhance transparency in the implementation of the WTO Agreement:
(a) when dumping margins are established, assessed, or reviewed under Articles 2, 9.3, 9.5, and 11 of the Anti-Dumping Agreement whether on the weighted-to-weighted basis, transaction-to- transaction basis, or weighted-to-transaction basis under Article 2.4.2 of the Anti-Dumping Agreement, all individual margins, whether positive or negative, should be counted toward the
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average; and
(b) the investigating Party shall request an exporter or producer in the territory of the other Party for the timely response to its questionnaires. When the investigating Party finds major deficiency in information in a questionnaire response from relevant exporter or producer received before the deadline or requires clarifications for the purposes of investigation, the investigating Party shall demand missing information or request clarification of information concerning the answers to the questionnaires. This procedure shall not be used to cause unwarranted delays in the investigation or to circumvent the deadlines which are provided in the Partyâs domestic laws and regulations.
4. Ifa decision is taken to impose an anti-dumping duty pursuant to Article 9.1 of the Anti-Dumping Agreement, the Party taking such a decision, may apply the âlesser dutyâ rule, by imposing a duty which is less than the dumping margin where such lesser duty would be adequate to remove the injury to the domestic industry.
Article 5.8. Notification and Consultations
1. Upon receipt by a Partyâs competent authorities of a properly documented anti-dumping application with respect to imports from the other Party, and no later than 15 days before initiating an investigation, the Party shall provide written notification to the other Party of its receipt of the application.
2. Upon receipt by a Partyâs competent authorities of a properly documented countervailing duty application with respect to imports from the other Party, and before initiating an investigation, the Party shall, as appropriate and in conformity with the procedural rules provided for in the domestic laws and regulations of the Party, provide written notification to the other Party of its receipt of the application and afford the other Party a meeting to consult with its competent authorities regarding the application.
3. The Parties affirm their rights and obligations under Annex II of the Anti-Dumping Agreement and in particular its paragraph 5, and under Articles 12.7 and 12.8 of the SCM Agreement. In the event the investigating authorities intend to make a determination on the basis of the facts available pursuant to Article 6.8 of the Anti-Dumping Agreement and Article 12.7 of the SCM Agreement, the investigating authorities shall endeavor to provide a reasoned and adequate explanation of:
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(a) indication of conditions under which the use of facts available is applicable;
(b) the information which interested parties have failed to submit to the investigating authorities; and
(c) the facts with which the investigating authorities decided to replace the information referred to in subparagraph (b).
Article 5.9. Undertakings
1. After the importing Partyâs competent authorities initiate an anti- dumping or countervailing duty investigation, the importing Party shall transmit to the exporting Partyâs embassy located in the importing Party or the exporting Partyâs competent authorities written information regarding the importing Partyâs procedures for requesting its authorities to consider a price undertaking, or an undertaking, including the time frames for offering and concluding any such undertaking.
2. In an anti-dumping investigation, where the importing Partyâs authorities have made a preliminary affirmative determination of dumping and injury caused by such dumping, the importing Party shall afford due consideration, and adequate opportunity for consultations, to exporters of the exporting Party regarding the proposed price undertaking which, if accepted, may result in suspension of the investigation without imposition of anti- dumping duties, through the means provided for in the importing Partyâs domestic laws, regulations, and procedures.
3. In a countervailing duty investigation, where the importing Partyâs authorities have made a preliminary affirmative determination of subsidization and injury caused by such subsidization, the importing Party shall afford due consideration, and adequate opportunity for consultations, to the exporting Party and its exporters, regarding the proposed undertaking which, if accepted, may result in suspension of the investigation without imposition of countervailing duties, through the means provided for in the importing Partyâs domestic laws, regulations, and procedures.
Article 5.10. Investigation after Termination Resulting from a Review
A Party shall endeavor to examine with special care, any application for initiation of an anti-dumping investigation on an originating good of the other Party on which anti-dumping measures have been terminated in the previous 12 months as a result of a review. Unless this pre-initiation examination indicates that the circumstances have changed, the investigation shall not
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proceed.
Article 5.11. Cumulative Assessment
Without prejudice to Article 3.3 of the Anti-Dumping Agreement and Article 15.3 of the SCM Agreement, when imports from more than one country are simultaneously subject to an anti-dumping or countervailing duty investigation, a Party shall examine, with special care, whether the cumulative assessment of the effect of the imports from the other Party is appropriate in light of the conditions of competition between the imported goods and the conditions of competition between the imported goods and the like domestic goods.
Article 5.12. Non-Application of Dispute Settlement
Neither Party shall have recourse to dispute settlement under Chapter Eight (Dispute Settlement) for any matter arising under this Section.
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Chapter CHAPTER SIX ECONOMIC COOPERATION
Article 6.1. Objectives
1. Recognizing the importance of on-going economic and technical cooperation initiatives, the Parties agree to complement their existing economic partnership in the areas of mutual benefit and interest, taking into account the different levels of development and capacity of the Parties.
2. The Parties agree that the economic and technical cooperation aims at narrowing the development gap between the Parties and maximizing mutual benefits from the implementation and utilization of this Agreement.
3. The Parties agree that the economic cooperation aims at addressing the specific needs and requirements consistent with the priority areas under this Agreement from implementing economic and technical cooperation activities, including capacity building programs and technical assistance, particularly a Work Programme.
4. The Parties acknowledge the need to strengthen and enhance economic, trade and investment cooperation as provided for in this Agreement.
Article 6.2. Areas of Cooperation
1. Economic cooperation under this Chapter shall support the inclusive, effective and efficient implementation and utilization of this Agreement through economic and technical cooperation activities which are trade or investment related as specified in the Work Programme.
2. The Parties shall explore and undertake economic and technical cooperation activities, including capacity building and technical assistance that focus on the following:
(a) trade and investment promotion;
(b) agriculture, forestry and fisheries;
(c) electronic commerce;
(d) technical regulations, standards and conformity assessment procedures;
(e) sanitary and phytosanitary measures;
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(f) trade and investment-related legal framework; (g) infrastructure development;
(h) industrial development;