1. The Parties reaffirm the principle of transparency in the application of technical regulations and standards in accordance with the WTO TBT Agreement.
2. The Parties recognise the importance of effective mechanisms for consultation, notification and exchange of information with respect to technical regulations and standards in accordance with the WTO TBT Agreement.
3. The Parties agree to establish an early warning mechanism to ensure that the SADC-EPA States are informed. in advance of new measures of the EU that may affect SADC EPA exports to the EU. The Parties shall make optimal use of existing mechanisms and avoid unnecessary duplications to multilateral or unilateral mechanisms.
Article 56. Measures Related to Technical Barriers to Trade
The Parties agree to identify and implement mechanisms among those supported by the WTO TBT Agreement that are the most appropriate for particular priority issues or sectors. Such mechanisms may include:
(a) intensifying their collaboration to facilitate access to their respective markets, by increasing the mutual knowledge and understanding of their respective systems in the field of technical regulations, standards, metrology, accreditation and conformity assessment;
(b) exchanging information, identifying and implementing appropriate mechanisms for particular issues or sectors, i.e. alignment with international standards, reliance on the supplier's declaration of conformity, the use of internationally recognised. accreditation to qualify conformity assessment bodies and the use of international product testing and certification schemes;
(c) identifying and organising sector-specific interventions on standards, technical regulations and conformity assessment procedures to facilitate understanding of and access to their respective markets. These sectors will be chosen taking into account key areas of trade, including priority products;
(d) developing cooperation activities and measures with a view to supporting the implementation of the rights and obligations under the WTO TBT Agreement;
(e) developing common views and approaches on technical regulatory practices, including transparency, consultation, necessity and proportionality, the use of international standards, conformity assessment requirements, the use of impact and risk assessment, enforcement and market surveillance, where appropriate;
(f) promoting harmonisation, whenever possible and in areas of mutual interest, towards international standards, and the use of such standards in the development of technical regulations and conformity assessment procedures;
(g) undertaking to consider, in due course, negotiating mutual recognition agreements in sectors of mutual economic interest;
(h) promoting collaboration between the Parties' organisations responsible for technical regulations, metrology, stan- dardisation, testing, certification, inspection and accreditation; and
(i) promoting the participation by the SADC EPA States in international standards-setting bodies.
Article 57. Role of the Trade and Development Committee on TBT Matters
The Parties agree that the Trade and Development Committee shall be competent to:
(a) monitor and review the implementation of this Chapter;
(b) provide coordination and consultation on TBT matters;
(c) identify and review priority sectors and products and the resulting priority areas for cooperation;
(d) make recommendations for modifications of this Chapter if necessary and appropriate; and
(e) address any other issues agreed by the Parties in respect of this Chapter.
Article 58. Capacity Building and Technical Assistance
1. The Parties recognise the importance of cooperating in the areas of technical regulations, standards, metrology, accreditation and conformity assessment in order to achieve the objectives of this Chapter.
2. The Parties agree that the following are priority areas for cooperation:
(a) the establishment of appropriate arrangements for the sharing of expertise, including appropriate training to ensure adequate and enduring technical competence of the relevant standardisation and conformity assessment bodies of the SADC EPA States and mutual understanding between such bodies in the territories of the Parties;
(b) the development of capacities of the SADC EPA States in the fields of technical regulations, metrology, standards, ac- creditation and conformity assessment including through the upgrading or setting up of laboratories and other equipment. In this regard, the Parties acknowledge the importance of strengthening regional cooperation and the need to take into account priority products and sectors;
(c) the development and adoption, within the SADC EPA States, of harmonised technical regulations, standards, metrology, accreditation and conformity assessment procedures based on relevant international standards;
(d) the support for the participation of the SADC EPA States in international standardisation, accreditation and metrology activities; and
(e) the development of TBT enquiry and notification points within the SADC EPA States.
Chapter VI. Sanitary and Phytosanitary Measures
Article 59. Multilateral Obligations
1. The Parties affirm their commitment to the rights and obligations provided for in the Agreement on the Application of Sanitary and Phytosanitary Measures (WTO SPS Agreement), the International Plant Protection Convention (IPPC), the Codex Alimentarius Commission and the World Organisation for Animal Health (OIE).
2. Those rights and obligations shall underlie the activities of the Parties under this Chapter.
Article 60. Objectives
The Parties agree to:
(a) facilitate trade and investment within the SADC EPA States and between the Parties while ensuring that measures adopted shall apply only to the extent necessary to protect human, animal or plant life or health in accordance with the provisions of the WTO SPS Agreement;
(b) cooperate in strengthening regional integration and specifically SADC EPA Statesâ cooperation on matters concerning sanitary and phytosanitary measures ("SPS measures") and to address problems arising from SPS measures on agreed. priority products and sectors as listed in Annex VI, whilst giving due consideration to regional integration;
(c) promote collaboration aiming at recognition of appropriate levels of protection in SPS measures; and
(d) establish and enhance SADC EPA States' technical capacity to implement and monitor SPS measures, including promoting greater use of international standards and other matters concerning SPS.
Article 61. Scope and Definitions
1. The provisions of this Chapter shall apply to SPS measures as defined in the WTO SPS Agreement. 2. For the purposes of this Chapter, definitions used in the WTO SPS Agreement and international standard-setting bodies, namely the Codex Alimentarius Commission, the IPPC and the OIE shall apply.
Article 62. Competent Authorities
1. The respective SPS authorities shall be the competent authorities in the Parties for the implementation of the measures referred to in this Chapter.
2. The Parties shall, in accordance with this Agreement, inform each other of their respective competent SPS authorities and any changes thereto.
Article 63. Transparency
1. The Parties reaffirm the principle of transparency in the application of SPS measures, in accordance with the WTO SPS Agreement.
2. The Parties recognise the importance of effective mechanisms for consultation, notification and exchange of information with respect to SPS measures in accordance with the WTO SPS Agreement.
3. The importing Party shall inform the exporting Party of any changes in its sanitary and phytosanitary import requirements that may affect trade falling under the scope of this Chapter. The Parties undertake to establish mechanisms for the exchange of such information where appropriate.
4. The Parties will apply the principle of zoning or compartmentalisation when defining import conditions, taking into account international standards. Zones or compartments of defined sanitary or phytosanitary status may also be identified and proposed jointly by the Parties, on a case by case basis, wherever possible, in order to avoid disruption to trade.
Article 64. Exchange of Information
1. The Parties agree to establish an early-warning system to ensure that the SADC EPA States are informed in advance of new SPS measures of the EU that may affect SADC EPA exports to the EU. This system shall be based on existing mechanisms where appropriate.
2. The Parties, agree to collaborate in the further development of the epidemiological surveillance network on animal diseases and in the domain of plant health. The Parties will exchange information on the occurrence of pests and diseases of known and immediate danger to the other Party.
Article 65. Role of the Trade and Development Committee on SPS Matters
The Trade and Development Committee shall be competent to:
(a) monitor and review the implementation of this Chapter;
(b) advise and make recommendations in order to achieve the objectives of this Chapter through its implementation;
(c) provide a forum for discussion and exchange of information and issues of cooperation;
(d) make recommendations for modifications to this Chapter if necessary and appropriate;
(e) review the list of priority products and sectors included in ANNEX VI as well as the resulting priority areas for cooperation;
(f) enhance cooperation on the development, application and enforcement of SPS measures; and
(g) discuss any other relevant matters relating thereto.
Article 66. Consultations
If either Party considers that the other Party has taken measures which may affect or have affected access to its market, appropriate consultations shall be held to avoid undue delays and to find an appropriate solution in conformity with the WTO SPS Agreement. In this regard, the Parties shall exchange names and addresses of contact points with sanitary and phytosanitary expertise in order to facilitate communication and the exchange of information.
Article 67. Cooperation, Capacity Building and Technical Assistance
The Parties agree to:
(a) promote cooperation between the equivalent institutions of the Parties;
(b) cooperate in facilitating regional harmonisation of measures and the development of appropriate regulatory frameworks and policies within and between the SADC EPA States, thereby enhancing intra-regional trade and investment; and
(c) cooperate in the following priority areas:
(i) building of technical capacity in the public and private sectors of the SADC EPA States to enable sanitary and phytosanitary control, including training and information events for inspection, certification, supervision and control;
(ii) building of capacity in the SADC EPA States to maintain and expand their market access opportunities;
(iii) building of capacity to ensure that measures adopted do not become unnecessary barriers to trade, while recognising the Parties' rights to set their own appropriate levels of protection;
(iv) enhancement of technical capacity for the implementation and monitoring of SPS measures, including promoting greater use of international standards;
(v) promotion of cooperation on the implementation of the WTO SPS Agreement, particularly strengthening SADC EPA States' notification procedures and enquiry points as well as other matters concerning relevant inter- national standards setting bodies;
(vi) development of capacities for risk analysis, harmonisation, compliance, testing, certification, residue monitoring, traceability and accreditation including through the upgrading or setting up of laboratories and other equipment to help the SADC EPA States comply with international standards. In this regard, the Parties acknowledge the importance of strengthening regional cooperation and the need to take into account the priority products and sectors identified in accordance with this Chapter; and
(vii) support for the participation of the SADC EPA States in relevant international standards setting bodies.
Chapter VII. Agriculture
Article 68. Cooperation on Agriculture
1. The Parties underline the importance of the agricultural sector to the SADC EPA States for food security, generating rural employment, increasing incomes of farm households, creating an inclusive rural economy, and as a basis for wider industrialisation and sustainable development, as well as to contribute to the objectives of this Agreement.
2. The use of export subsidies on agricultural goods in the trade between the Parties shall not be allowed from the date of entry into force of this Agreement.
3. An agricultural partnership is established between the EU and the SADC EPA States to facilitate an exchange of views between the Parties on agriculture, inter alia, food security, development, regional value chains and integration. The coverage of issues and operational rules for the agricultural partnership shall be established by common agreement of the Parties acting within the Committee referred to in Article 103.
Chapter VII. Current Payments and Capital Movements
Article 69. Current Payments
1 Subject to the provisions of Articles 70 and 71, the Parties undertake to impose no restrictions on and to allow all payments for current transactions between their residents to be made in freely convertible currency.
2. The Parties may take the necessary measures to ensure that the provisions of paragraph 1 are not used to make transfers that are not compliant with a Party's laws and regulations.
Article 70. Safeguard Measures
1. Where, in exceptional circumstances, payments and capital movements between the Parties cause or threaten to cause serious difficulties for the operation of monetary policy or exchange rate policy in one or more SADC EPA States or one or more Member States of the European Union, safeguard measures with regard to payments and capital movements that are strictly necessary may be taken by the EU or the SADC EPA State concerned for a period not exceeding six (6) months.
2. The Joint Council shall be informed. forthwith of the adoption of any safeguard measure and, as soon as possible, of a time schedule for its removal.
Article 71. Balance of Payment Difficulties
Where one or more Member States of the European Union or a SADC EPA State is in serious balance of payments difficulties or external financial difficulties, or under threat thereof, it may adopt restrictive measures in accordance with the conditions established under the WTO Agreement and the Articles of Agreement of the International Monetary Fund, which shall be of limited duration and may not go beyond what is necessary to remedy the balance of payments situation. The Party having adopted or maintained such measures shall inform the other Party forthwith and shall submit to it as soon as possible a timetable for the elimination of the measures concerned.
Chapter IX. Trade In Services and Investment
Article 72. Objectives
The Parties recognise the growing importance of trade in services and investment for the development of their economies and reaffirm their commitment regarding services in Articles 41 to 43 of the Cotonou Agreement and their respective rights and obligations under the General Agreement on Trade in Services (GATS).
Article 73. Trade In Services
1. The Parties may negotiate trade in services to extend the scope of this Agreement. In this regard, Botswana, Lesotho, Mozambique and Swaziland (Participating SADC EPA Statesâ) on the one hand, and the EU on the other hand, have started and will continue to negotiate trade in services.
2. The negotiations between the EU and the Participating SADC EPA States shall be guided by the following principles:
(a) negotiations shall cover definitions and principles for the liberalisation of trade in services;
(b) negotiations shall cover lists of commitments, setting out the conditions applicable to the liberalisation of trade in services. Such conditions shall be listed per sector liberalised and include, where necessary, limitations on market access and national treatment as well as transition periods for liberalisation;
(c) negotiations shall also address regulatory provisions supporting the liberalisation of trade in services;
(d) liberalisation of trade in services shall meet the requirements of Article V of the GATS;
(e) liberalisation of trade in services shall be reciprocal and asymmetric, taking into account the development needs of the Participating SADC EPA States. This may also result in the inclusion of provisions on cooperation and on special and differential treatment;
(f) negotiations shall build on the relevant provisions in existing applicable legal frameworks.
3. The EU and the Participating SADC EPA States agree to cooperate on strengthening the regulatory frameworks of the Participating SADC EPA States as well as to support the implementation of the commitments resulting from the negotiations in accordance with Article 13(5). The Parties recognise that in accordance with Article 13(8) trade capacity building can support the development of economic activities.
4. If a Party that is not party to an agreement on trade in services negotiated in accordance with paragraphs 1 and 2 wishes to join, it may negotiate the terms of its entry to that agreement.
5. If any agreement emanating from negotiations envisaged in paragraphs 1 and 4 were to result in outcomes that prove to be incompatible with the future development of a SADC regional services framework, the Parties shall negotiate to bring this Agreement in line with such regional framework while ensuring a balance of benefits.
Article 74. Trade and Investment
1. The EU and the Participating SADC EPA States agree to cooperate on investment in accordance with Article 13(6) and may in future consider negotiating an agreement on investment in economic sectors other than services.
2. Ifa Party that is not party to an agreement on investment negotiated in accordance with paragraph 1 wishes to join, it may negotiate the terms of its entry to that agreement.
3. If any agreement emanating from negotiations envisaged in paragraphs 1 and 2 were to result in outcomes that prove to be incompatible with the future development of a SADC regional investment framework, the Parties shall jointly endeavour to bring this Agreement in line with such regional framework while ensuring a balance of benefits.
Part III. DISPUTE AVOIDANCE AND SETTLEMENT
Chapter I. Objective and Scope
Article 75. Objective
1. The objective of Part Ill is to avoid or settle any dispute between the Parties concerning the interpretation and application of this Agreement with a view to arrive at, where possible, a mutually agreed solution.
2. For disputes that relate to the collective action of SACU, SACU will act as a collective for the purposes of this Part, and the EU shall act against SACU as such.
3. For disputes that relate to an individual action of a SADC EPA State, the SADC EPA State concerned shall act individually for the purposes of this Part, and the EU shall act only against the specific State that it considers has infringed a provision of this Agreement.
Article 76. Scope
1. Part IMI shall apply to any dispute concerning the interpretation and application of this Agreement, except as otherwise expressly provided.
2. Notwithstanding paragraph 1, the procedure set out in Article 98 of the Cotonou Agreement shall be applicable in the event of a dispute concerning the financing pertaining to development cooperation between the Parties.
Chapter II. Consultations and Mediation
Article 77. Consultations
1. The Parties shall endeavour to resolve any dispute referred to in Article 76 by entering into consultations in good faith with the aim of reaching an amicable solution.
2. A Party shall seek consultations by means of a written request to the other Party, copied to the Trade and Development Committee, identifying the measure at issue and the provisions of this Agreement with which it considers the measure not to be in conformity.
3. Consultations shall be held within forty (40) days of the date of the receipt of the request. The consultations shall be deemed concluded within sixty (60) days of the date of the receipt of the request, unless both Parties agree to continue consultations. All information disclosed during the consultations shall remain confidential.
4. Consultations on matters of urgency, including those regarding perishable or seasonal goods, shall be held within fifteen (15) days of the date of the receipt of the request, and shall be deemed concluded within thirty (30) days of the date of the receipt of the request.
5. If consultations are not held within the timeframes laid down in paragraph 3 or 4 respectively, or if consultations have been concluded and no mutually agreed solution has been reached, the complaining Party may request the establishment of an arbitration panel in accordance with Article 79.
Article 78. Mediation
1. If consultations fail to produce a mutually agreed solution, the Parties may, by agreement, seek recourse to a mediator. Unless the Parties agree otherwise, the terms of reference for the mediation shall be the matter referred to in the request for consultations.
2. Unless the Parties agree on a mediator within fifteen (15) days of the date of the agreement to request mediation, the Chairperson of the Trade and Development Committee, or his or her delegate, shall select by lot a mediator from the pool of individuals who are on the list referred to in Article 94 and are not nationals of either Party. The selection shall be made within twenty-five (25) days of the date of the submission of agreement to request mediation and in the presence of a representative of each Party. The mediator will convene a meeting with the Parties no later than thirty (30) days after being selected. The mediator shall receive the submissions of each Party no later than fifteen (15) days before the meeting and notify an opinion no later than forty-five (45) days after having been selected.
3. The mediator's opinion may include a recommendation on how to resolve the dispute consistent with the provisions of this Agreement. The mediator's opinion is non-binding.
4. The Parties may agree to amend the time limits referred to in paragraph 2. The mediator may also decide to amend these time limits upon request of any of the Parties or on his own initiative, given the particular difficulties experienced by the Party concerned or the complexities of the case.
5. The proceedings involving mediation, in particular all information disclosed and positions taken by the Parties during these proceedings, shall remain confidential.
Chapter III. Dispute Settlement Procedures
Article 79. Initiation of the Arbitration Procedure
1. Where the Parties have failed to resolve the dispute by recourse to consultations as provided for in Article 77, or by recourse to mediation as provided for in Article 78, the complaining Party may request the establishment of an arbitration panel.
2. The request for the establishment of an arbitration panel shall be made in writing to the Party complained against and the Trade and Development Committee. The complaining Party shall identify in its request the specific measures at issue, and it shall explain how such measures constitute a breach of the provisions of this Agreement.
Article 80. Establishment of the Arbitration Panel
1. An arbitration panel shall be composed of three (3) arbitrators.
2. Each Party shall appoint one arbitrator within ten (10) days of the date of the receipt of the request for the establishment of an arbitration panel. The two (2) arbitrators shall appoint a third arbitrator, who shall be the chairperson of the arbitration panel, within twenty (20) days of the receipt of the request for the establishment of a panel. The chairperson of the arbitration panel shall not be a national of the Parties nor permanently reside in the territory of the Parties.
3. If all three (3) arbitrators are not appointed within twenty (20) days, or if, within ten (10) days of the appointment of the third arbitrator, either Party submits a reasoned written objection to the appointed arbitrators to the Trade and Development Committee, either Party may request the Chairperson of the Trade and Development Committee, or her or his delegate, to select all three (3) members by lot from the list established under Article 94, one among the individuals proposed by the complaining Party, one among the individuals proposed by the Party complained against, and one among the individuals selected by the Parties to act as chairperson. Where the Parties agree on one or more of the members of the arbitration panel, any remaining members shall be selected by the procedure laid down in this paragraph.
4. The Chairperson of the Trade and Development Committee, or her or his delegate, shall select the arbitrators within five (5) days of receipt of the request made by either Party referred to in paragraph 3 and in the presence of a rep- resentative of each Party.
5. The date of establishment of the arbitration panel shall be the date on which the three (3) arbitrators are finally selected.
Article 81. Interim Panel Report
The arbitration panel shall notify to the Parties an interim report containing both the descriptive section and its findings and conclusions, as a general rule not later than one hundred and twenty (120) days from the date of establishment of the arbitration panel. In cases of urgency, the time limit shall be reduced to sixty (60) days. Any Party may submit written comments to the arbitration panel on precise aspects of its interim report within fifteen (15) days of the notification of the report.
Article 82. Arbitral Ruling
1. The arbitration panel shall notify its ruling to the Parties and to the Trade and Development Committee within one hundred and fifty (150) days from the date of the establishment of the arbitration panel. Where it considers that this deadline cannot be met, the chairperson of the arbitration panel must notify the Parties and the Trade and Development Committee in writing, stating the reasons for the delay and the date on which the panel plans to conclude its work. Under no circumstances should the ruling be notified later than one hundred and eighty (180) days from the date of the establishment of the arbitration panel.
2. In cases of urgency, including those involving perishable and seasonal goods, the arbitration panel shall make every effort to notify its ruling within ninety (90) days from the date of its establishment. The arbitration panel may give a preliminary ruling within ten (10) days of its establishment on whether it deems the case to be urgent.
3. Hither Party may request the arbitration panel to provide a recommendation as to how the Party complained against could bring itself into compliance.
Article 83. Compliance with the Arbitral Ruling
The Party complained against shall take any steps necessary to comply with the arbitral ruling and the Parties shall seek to agree on the period of time to comply with that ruling.
Article 84. The Reasonable Period of Time for Compliance
1. No later than thirty (30) days after the receipt of notification of the arbitral ruling to the Parties, the Party complained against shall notify the complaining Party and the Trade and Development Committee of the reasonable period of time it will require to bring itself into compliance with the arbitral ruling.