Title
SECOND PROTOCOL TO AMEND THE AGREEMENT ESTABLISHING THE ASEAN-AUSTRALIA-NEW ZEALAND FREE TRADE AREA
Preamble
PREAMBLE
The Governments of Brunei Darussalam, the Kingdom of Cambodia (Cambodia), the Republic of Indonesia (Indonesia), the Lao People’s Democratic Republic (Lao PDR), Malaysia, the Republic of the Union of Myanmar (Myanmar), the Republic of the Philippines (Philippines), the Republic of Singapore (Singapore), the Kingdom of Thailand (Thailand) and the Socialist Republic of Viet Nam (Viet Nam), collectively, the Member States of the Association of Southeast Asian Nations, and Australia and New Zealand;
RECALLING the Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area, signed at Cha-am, Petchaburi, Thailand on 27 February 2009, as amended by the First Protocol to Amend the Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area, done at Nay Pyi Taw, Myanmar on 26 August 2014 (the “Agreement”);
RECOGNISING the need to upgrade the Agreement, including in the areas of trade in goods, rules of origin, customs procedures and trade facilitation, trade in services, investment, movement of natural persons, electronic commerce, competition and consumer protection, micro, small and medium enterprises, trade and sustainable development, and government procurement, to ensure that the Agreement retains its relevance to business and adds value to developments in other fora including the Regional Comprehensive Economic Partnership (RCEP) signed on 15 November 2020;
DESIRING to modernise the Agreement to take account of changing global business and trade practices and the evolving regional economic architecture, including incorporating and implementing provisions to facilitate trade and investment and remove unnecessary barriers to accelerate post-pandemic recovery; and
NOTING that Article 6 (Amendments) of Chapter 18 (Final Provisions) of the Agreement provides for amendments thereto to be agreed in writing by the Parties,
HAVE AGREED AS FOLLOWS:
Body
Article 1. Amendment to the Agreement
1. In accordance with Article 6 (Amendments) of Chapter 18 (Final Provisions), the Parties have agreed to amend the Agreement on the terms set out in the Appendix to this Protocol.
2. This Protocol shall form an integral part of the Agreement.
Article 2. Entry Into Force
1. This Protocol shall be subject to ratification, acceptance or approval by each Party in accordance with its applicable legal procedures. The instrument of ratification, acceptance or approval of a Party shall be deposited with the Depositary, who shall promptly notify all other Parties of each deposit.
2. This Protocol shall enter into force 60 days after the date on which Australia, New Zealand and at least four ASEAN Member States have deposited their instruments of ratification, acceptance or approval.
3. For each Party ratifying, accepting or approving the Protocol after the date on which Australia, New Zealand and at least four ASEAN Member States have deposited their instruments of ratification, acceptance or approval in accordance with Paragraph 2, this Protocol shall enter into force for that Party 60 days after the date of the deposit of its own instrument of ratification, acceptance or approval.
Article 3. Depositary
This Protocol shall be deposited with the Secretary-General of ASEAN who is designated as the Depositary for this Protocol. The Depositary shall promptly provide a certified copy of the original text of this Protocol to each Party.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective Governments, have signed this Second Protocol to Amend the Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area. DONE at Semarang, Indonesia, this day of in the Year , in a single original copy in the English language.
For the Government of Brunei Darussalam:
DATO DR. AMIN LIEW ABDULLAH
Minister at the Prime Minister’s Office and
Minister of Finance and Economy II
For the Government of the Kingdom of Cambodia:
(NAME IN BOLD AND CAPS)
(Designation)
For the Government of the Republic of Indonesia:
ZULKIFLI HASAN
Minister of Trade
For the Government of the Lao People’s Democratic Republic:
(NAME IN BOLD AND CAPS)
(Designation)
For the Government of Malaysia:
TENGKU DATUK SERI UTAMA ZAFRUL TENGKU ABDUL AZIZ
Minister of Investment, Trade and Industry
For the Government of the Republic of the Union of Myanmar:
(NAME IN BOLD AND CAPS)
(Designation)
For the Government of the Republic of the Philippines:
(NAME IN BOLD AND CAPS)
(Designation)
For the Government of the Republic of Singapore:
GAN KIM YONG
Minister for Trade and Industry
For the Government of the Kingdom of Thailand:
(NAME IN BOLD AND CAPS)
(Designation)
For the Government of the Socialist Republic of Viet Nam:
(NAME IN BOLD AND CAPS)
(Designation)
For the Government of Australia:
TIM WATTS
Assistant Minister for Foreign Affairs
For the Government of New Zealand:
RINO TIRIKATENE
Minister of State for Trade and Export Growth
Attachments
Chapter 1. ESTABLISHMENT OF FREE TRADE AREA, OBJECTIVES AND GENERAL DEFINITIONS
1. Objectives
The objectives of this Agreement are to:
(a) progressively liberalise and facilitate trade in goods among the Parties through, inter alia, progressive elimination of tariff and non-tariff barriers in substantially all trade in goods among the Parties;
(b) progressively liberalise trade in services among the Parties, with substantial sectoral coverage;
(c) facilitate, promote and enhance investment opportunities among the Parties through further development of favourable investment environments;
(d) establish a co-operative framework for strengthening, diversifying and enhancing trade, investment and economic links among the Parties; and
(e) provide special and differential treatment to ASEAN Member States, especially to the newer ASEAN Member States, to facilitate their more effective economic integration.
2. Establishment of the ASEAN-Australia-New Zealand Free Trade Area
The Parties hereby establish, consistent with Article XXIV of GATT 1994 and Article V of GATS, an ASEAN, Australia and New Zealand Free Trade Area.
3. General Definitions
For the Purposes of this Agreement, Unless the Context Otherwise Requires:
(a) AANZFTA means the ASEAN-Australia-New Zealand Free Trade Area;
(b) Agreement means the Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area;
(c) Agreement on Customs Valuation means the Agreement on Implementation of Article VI! of the General Agreement on Tariffs and Trade 1994 in Annex 1A to the WTO Agreement;
(d) ASEAN means the Association of Southeast Asian Nations which comprises of Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People's Democratic Republic, Malaysia, the Republic of the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam and whose members are referred to in this Agreement collectively as the ASEAN Member States and individually as an ASEAN Member State;
(e) customs duties means any customs or import duty and a charge of any kind, including any tax or surcharge, imposed in connection with the importation of a good, but does not include any:
(i) charge equivalent to an internal tax imposed consistently with the provisions of paragraph 2 of Article Ill of GATT 1994, in respect of the like domestic product or in respect of an article from which the imported product has been manufactured or produced in whole or in part;
(ii) anti-dumping or countervailing duty applied consistently with the provisions of Article VI of GATT 1994, the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, as may be amended and the Agreement on Subsidies and Countervailing Measures in Annex 1A to the WTO Agreement, as may be amended; or
(iii) fee or any charge commensurate with the cost of services rendered;
(f) days means calendar days, including weekends and holidays;
(g) essential goods means goods considered by a Party as essential for disaster relief and urgent medical purposes during a humanitarian crisis, epidemic or pandemic; (1)
(h) FTA Joint Committee means the ASEAN, Australia and New Zealand FTA Joint Committee established pursuant to Article 1 (FTA Joint Committee) of Chapter 19 (Institutional Provisions);
(i) GATS means the General Agreement on Trade in Services in Annex 1B to the WTO Agreement;
(j) GATT 1994 means the General Agreement on Tariffs and Trade 1994 in Annex 1A to the WTO Agreement;
(k) HS Code means the Harmonized Commodity Description and Coding System established by the International Convention on the Harmonized Description and Coding System done at Brussels on 14 June 1983, as amended;
(l) humanitarian crisis means an event that poses, or series of events that pose, an imminent threat to or affect the health, safety or well-being of, a community or a region, and may include natural or human-induced disasters and may occur throughout a large land area;
(m) IMF means the International Monetary Fund;
(n) IMF Articles of Agreement means the Articles of Agreement of the International Monetary Fund adopted at Bretton Woods on 22 July 1944;
(o) Least Developed Country means any country designated as such by the United Nations and which has not obtained graduation from the least developed country category;
(p) Least Developed Country Party means any Party that is a Least Developed Country;
(q) MSMEs means micro, small and medium enterprises, and may be further defined, where applicable, in accordance with the respective laws, regulations, or national policies of each Party;
(r) newer ASEAN Member States means the Kingdom of Cambodia, the Lao People's Democratic Republic, the Republic of the Union of Myanmar and the Socialist Republic of Viet Nam;
(t) originating good means a good that qualifies as originating under Chapter 3 (Rules of Origin);
(u) Parties means the ASEAN Member States, Australia and New Zealand collectively;
(v) Party means an ASEAN Member State or Australia or New Zealand;
(w) Second Protocol means the Second Protocol to Amend the Agreement Establishing the ASEAN- Australia-New Zealand Free Trade Area;
(x) TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights, in Annex 1C to the WTO Agreement; WTO means the World Trade Organization; and WTO Agreement means the Marrakesh
(y) Agreement Establishing the World Trade Organization, done on 15 April 1994.
Chapter 2. TRADE IN GOODS
Section A. General Provisions and Market Access for Goods
1. National Treatment on Internal Taxation and Regulation
Each Party shall accord national treatment to the goods of the other Parties in accordance with Article Ill of GATT 1994. To this end, Article IIl of GATT 1994 shall be incorporated into and shall form part of this Agreement, mutatis mutandis.
2. Reduction or Elimination of Customs Duties
Except as otherwise provided in this Agreement, each Party shall progressively reduce or eliminate customs duties on originating goods of the other Parties in accordance with its schedule of tariff commitments in Annex 1 (Schedules of Tariff Commitments).
3. Acceleration of Tariff Commitments
1. Nothing in this Agreement shall preclude the Parties from negotiating and entering into arrangements to accelerate or improve tariff commitments made under this Agreement. An agreement among the Parties to accelerate or improve tariff commitments shall be incorporated into this Agreement, in accordance with Article 6 (Amendments) of Chapter 21 (Final Provisions). Such acceleration or improvement of tariff commitments shall be implemented by the Parties.
2. Two or more Parties may also enter into consultations to consider accelerating or improving tariff commitments set out in their schedules of tariff commitments in Annex 1 (Schedules of Tariff Commitments). An agreement between these Parties to accelerate or improve their respective tariff commitments under this Agreement shall be incorporated into this Agreement, in accordance with Article 6 (Amendments) of Chapter 21 (Final Provisions). Tariff concessions arising from such acceleration or improvement of tariff commitments shall be extended to all Parties.
3. A Party may, at any time, unilaterally accelerate the reduction or elimination of customs duties on originating goods of the other Parties set out in its schedule of tariff commitments in Annex 1 (Schedules of Tariff Commitments). A Party intending to do so shall inform the other Parties before the new rate of customs duties takes effect, or in any event, as early as practicable.
4. Temporary Admission of Goods
1. Each Party shall allow, as provided for in its laws and regulations, goods to be brought into its customs territory conditionally relieved, totally or partially, from payment of import duties and taxes, if such goods:
(a) are brought into its customs territory for a specific purpose;
(b) are intended for re-exportation within a specific period; and
(c) have not undergone any change, except normal depreciation and wastage due to the use made of them.
2. Each Party shall, on the request of the person concerned and for reasons its customs authority considers valid, extend the time limit for duty-free temporary admission provided for in Paragraph 1 beyond the period initially fixed.
3. No Party shall condition the duty-free temporary admission of a good provided for in Paragraph 1, other than to require that the good:
(a) be used solely by or under the personal supervision of a national or resident of another Party in the exercise of the business activity, trade, profession, or sport of that person;
(b) not be sold or leased while in its territory;
(c) be accompanied by a security or guarantee in an amount no greater than the customs duties, taxes, fees, and charges that would otherwise be owed on entry or final importation, releasable on exportation of the good;
(d) be capable of identification when imported and exported;
(e) be exported on the departure of the person referred to in Subparagraph (a), or within such other period related to the purpose of the temporary admission as the Party may establish in accordance with its laws and regulations;
(f) be admitted in no greater quantity than is reasonable for its intended use; and
(g) be otherwise admissible into the Party's territory under its laws and regulations.
4. If any condition that a Party imposes under Paragraph 3 has not been fulfilled, the Party may apply the customs duty and any other charge that would normally be owed on the good, in addition to any other charges or penalties provided for in its laws and regulations.
5. Each Party shall permit a good temporarily admitted under this Article to be re-exported through a customs port other than that through which it was admitted.
6. Each Party shall, if it is in accordance with its laws and regulations, (1) provide that the importer or other person responsible for a good admitted under this Article shall not be liable for failure to export the good on presentation of satisfactory proof to the importing Party that the good has been destroyed within the original period fixed for temporary admission or any lawful extension.
5. Temporary Admission for Containers and Pallets
1. Each Party shall, as provided for in its laws and regulations, or the provisions of the related international agreements to which it is party, grant duty-free temporary admission for containers and pallets, regardless of their origin, in use or to be used in the shipment of goods in international traffic.
2. For the purposes of this Article, âcontainerâ means an article of transport equipment (lift-van, movable tank, or other similar structure):
(a) fully or partially enclosed to constitute a compartment intended for containing goods;
(b) of a permanent character and accordingly strong enough to be suitable for repeated use;
(c) specially designed to facilitate the carriage of goods, by one or more modes of transport, without intermediate reloading;
(d) designed for ready handling, particularly when being transferred from one mode of transport to another;
(e) designed to be easy to fill and to empty; and
(f) having an internal volume of one cubic metre or more.
"Container" shall include the accessories and equipment of the container, appropriate for the type concerned, provided that such accessories and equipment are carried with the container. "Container" shall not include vehicles, accessories or spare parts of vehicles, or packaging or pallets. "Demountable bodies" shall be regarded as containers.
3. For the purposes of this Article, "pallet" means a device on the deck of which a quantity of goods can be assembled to form a unit load for the purpose of transporting it, or of handling or stacking it with the assistance of mechanical appliances. This device is made up of two decks separated by bearers, or of a single deck supported by feet; its overall height is reduced to the minimum compatible with handling of fork lift trucks or pallet trucks; it may or may not have a superstructure.