Kenya - United Kingdom EPA (2020) - Electronic Database of Investment Treaties (EDIT)

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Kenya - United Kingdom EPA (2020)

(i) involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilisation plan. However, such measures shall not operate to increase the exports of or the protection afforded to such domestic industry, and shall not depart from the provisions of this Agreement relating to non-discrimination; or

(j) essential to the acquisition or distribution of products in general or local short supply, provided that any such measures shall be consistent with the principle that the UK or the EAC Partner State(s) are entitled to an equitable share of the international supply of such products, and that any such measures, which are inconsistent with the other provisions of this Agreement, shall be eliminated as soon as the conditions giving rise to them have ceased to exist.

(1) The exception provided for in this sub-paragraph extends to any commodity agreement which conforms to the principles approved by the Economic and Social Council in its resolution 30 (IV) of 28 March 1947,

Article 129. Security Exceptions

1. Nothing in this Agreement shall be construed:

(a) to require the UK or the EAC Partner State(s) to furnish any information the disclosure of which it considers contrary to its essential security interests; or

(b) to prevent the UK or the EAC Partner State(s) from taking any action which it considers necessary for the protection of its essential security interests:

(i) relating to fissionable materials or the materials from which they are derived;

(ii) the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;

(iii) relating to government procurement indispensable for national security or for national defence purposes;

(iv) taken in time of war or other emergency in international relations; or

(c) to prevent the UK or the EAC Partner State(s) from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.

2. The Committee of Senior Officials shall be informed to the fullest extent possible of measures taken under paragraphs 1(b) and (c) above and of their termination.

Article 130. Taxation

1. Nothing in this Agreement, or in any arrangement adopted under this Agreement, shall be construed to prevent a Party from distinguishing, in the application of the relevant provisions of its fiscal legislation, between taxpayers who are not in the same situation, in particular with regard to their place of residence or with regard to the place where their capital is invested.

2. Nothing in this Agreement, or in any arrangement adopted under this Agreement, shall be construed to prevent the adoption or enforcement of any measure aimed at preventing the avoidance or evasion of taxes pursuant to the tax provisions of agreements to avoid double taxation or other tax arrangements or domestic fiscal legislation.

3. Nothing in this Agreement shall affect the rights and obligations of the Parties under any tax convention. In the event of any inconsistency between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency.

Part IX. GENERAL AND FINAL PROVISIONS

Article 131. Balance of Payments Difficulties

1. Where a Party is in serious balance of payments and external financial difficulties, or under threat thereof, it may adopt or maintain restrictive measures with regard to trade in goods.

2. The Parties shall endeavour to avoid the application of the restrictive measures referred to in paragraph 1.

3. Any restrictive measure adopted or maintained under this Article shall be non- discriminatory and of limited duration and shall not go beyond what is necessary to remedy the balance of payments and external financial situation. They shall be in accordance with the conditions established in the WTO Agreement and consistent with the Articles of Agreement of the International Monetary Fund (IMF), as applicable.

4. A Party maintaining or having adopted restrictive measures, or any changes thereto, shall promptly notify them to the other Party and to the EPA Council and present as soon as possible, a time schedule for their removal.

5. Consultations shall be held promptly within the EPA Council and such consultations shall assess the balance of payments situation of the concerned Party and the restrictions adopted or maintained under this Article, taking into account, inter alia, such factors as:

(a) the nature and extent of the balance of payments and the external financial difficulties;

(b) the external economic and trading environment; (c) alternative corrective measures which may be available.

6. The consultations shall address the compliance of any restrictive measures with paragraphs 3 and 4. All findings of statistical and other facts presented by the IMF relating to foreign exchange, monetary reserves and balance of payments shall be accepted and conclusions shall be based on the assessment by the IMF of the balance of payments and the external financial situation of the concerned Party adopting or maintaining the measure.

Article 132. Definition of the Parties and Fulfilment of Obligations

1. The Contracting Parties of this Agreement are the Republic of Kenya and any other Contracting Parties to The Treaty for the Establishment of the East African Community that accede to this Agreement in accordance with Article 143, herein referred to as the âEAC Partner State(s)â, on the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part.

2. For the purposes of this Agreement, the term "Party" shall refer to the EAC Partner State(s) or the UK as the case may be. The term "Parties" shall refer to the EAC Partner State(s) and the UK.

3. For the purposes of this Agreement, the term "EAC Partner State" shall refer to a State that is a Contracting Party to both this Agreement and to The Treaty for the Establishment of the East African Community.

4. The EAC Partner State(s) may mandate one of their representatives to act on their behalf on all matters under this Agreement for which they have agreed to act collectively.

5. The Parties shall adopt any general or specific measures required from them to fulfil their obligations under this Agreement and shall ensure that they comply with the objectives laid down in this Agreement.

Article 133. Contact Points

1. In order to facilitate communication relating to the effective implementation of this Agreement, the Parties shall designate a contact point for the exchange of information upon entry into force of this Agreement. The designation of a contact point for the exchange of information is without prejudice to the specific designation of competent authorities under specific provisions of this Agreement.

2. On the request of the contact points for exchange of information, each Party shall indicate the office or official responsible for any matter pertaining to the implementation of this Agreement and provide the required support to facilitate communication with the requesting Party.

3. Each Party, as the case may be, shall, on the request of the other Party, and to the extent legally possible, provide information and reply promptly to any question from the other Party relating to an actual or proposed measure that might affect trade between the Parties.

Article 134. Transparency and Confidentiality

1. Each Party shall ensure that any laws, regulations, procedures and administrative rulings of general application as well as any international commitments relating to any trade matter covered by this Agreement are promptly published or made publicly available and brought to the attention of the other Party.

2. Without prejudice to specific transparency provisions in this Agreement, the information referred to under this Article shall be considered to have been provided when the information has been made available to the Governments of the EAC Partner State(s) and the UK or to the WTO or on the official, publicly and fee-free accessible website of the Parties.

3. Nothing in this Agreement shall require any Party to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private, except to the extent that it may be necessary to be disclosed in the context of a dispute settlement proceeding under Part VII of this Agreement. Where such disclosure is considered necessary by a panel established under Article 113 of Part VII the panel shall ensure that confidentiality is fully protected.

Article 135. Relations with Annex III

Nothing in this Agreement shall be construed so as to prevent the adoption by either Party of any appropriate measures consistent with and pursuant to Annex HI.

Article 136. Relations with the WTO Agreement

The Parties agree that nothing in this Agreement requires them to act in a manner inconsistent with their WTO obligations.

Article 137. Notifications

Notifications required under this Agreement shall be made in writing and sent to the Governments of the EAC Partner State(s) or the UK, as the case may be.

Article 138. Entry Into Force

1. This Agreement shall be signed and ratified, or approved in accordance with the applicable constitutional or internal rules and procedures of the respective Parties.

2. This Agreement shall enter into force the first day of the second month, or on such date as the Parties may otherwise agree, following notification from both of the Parties of the completion of the internal legal procedures referred to in paragraph 1.

3. Notifications under paragraph 2 shall be sent, in the case of the EAC Partner State(s) to the Government of Kenya and in the case of the UK to the Government of the UK (1), who shall be joint depositaries of this Agreement. Each depositary shall notify the other depositary upon receipt of the notification indicating the completion of the Partiesâ internal legal procedures for the purpose of entry into force.

4. The joint depositary arrangements above shall be reviewed as part of the review provided for in paragraph 2 of Article 143 (Accession of Contracting Parties to The Treaty for the Establishment of the East African Community).

5. Pending entry into force of this Agreement, the EAC Partner State(s) and the UK may provisionally apply the provisions of this Agreement.

6. Provisional application of this Agreement shall be notified to the depositaries. Such provisional application shall take effect ten (10) days, or on such date as the EAC Partner State(s) and the UK may otherwise agree, following the date on which the last notification is made to the depositaries of the completion of the internal legal procedures necessary for that purpose.

7. Where a provision of this Agreement is applied in accordance with paragraph 5, any reference in such provision to the date of entry into force of this Agreement shall be understood to refer to the date from which the EAC Partner State(s) and the UK agree to apply that provision in accordance with paragraph 6.

8. Notwithstanding paragraph 5, the EAC Partner State(s) and the UK may unilaterally take steps to apply this Agreement, before provisional application, to the extent feasible.

(1) Treaty Section, FCDO Legal Directorate, Foreign, Commonwealth and Development Office, WH.2.143, King Charles Street, London SW1A 2AH, United Kingdom

Article 139. Denunciation

1. A Party to this Agreement may give written notice to the other of its intention to denounce this Agreement.

2. Denunciation shall take effect one year after notification to the other Party.

Article 140. Territorial Application

1. This Agreement shall apply, on the one hand, to the territories of the EAC Partner State(s), as defined in Article 132(1), and, on the other hand, to the United Kingdom of Great Britain and Northern Ireland and the following territories for whose international relations the UK is responsible to the extent that and under the conditions which the Treaty on European Union and the Treaty on the Functioning of the European Union applied to those territories before those treaties ceased to apply to the UK:

(a) Gibraltar; and

(b) the Channel Islands and the Isle of Man.

2. References to "territory" in this Agreement shall be understood in this sense.

Article 141. Review Clause

1. This Agreement shall be reviewed after every five (5) years from the date of its entry into force.

2. As regards the implementation of this Agreement, a Party may make suggestions oriented towards adjusting trade-related cooperation, taking into account the experience acquired during the implementation of this Agreement.

Article 142. Amendment Clause

1. The Parties may agree, in writing, to amend this Agreement. A Party may submit proposals for the amendment of this Agreement to the EPA Council for consideration. The other Party may comment on the proposals for amendment within ninety (90) days from the date of receipt of the proposal.

2. Should the EPA Council adopt amendments to this Agreement, such amendments shall be submitted to the Parties for ratification, acceptance or approval in accordance with their respective constitutional or internal legal requirements.

3. An amendment shall enter into force after the Parties exchange written notifications certifying that they have completed their respective applicable legal requirements and procedures, on such date as the Parties may agree.

Article 143. Accession of Contracting Parties to the Treaty for the Establishment of the East African Community

1. This Agreement shall be open to accession by any State that is a Contracting Party to The Treaty for the Establishment of the East African Community. A request for accession shall be submitted to the EPA Council.

2. The Parties shall review the effects of the accession of the eligible State on this Agreement. The EPA Council may decide on any transitional or amending measures that might be necessary.

3. Following the EPA Councilâs approval of the eligible Stateâs application for accession, the eligible State may deposit an instrument of accession with the relevant depositary.

4. This Agreement shall enter into force in relation to the acceding State on the date its instrument of accession is deposited or on such other date as that State and the Parties to this Agreement agree.

Article 144. Amendments to Agreement Made on Accession

1. Upon accession of a State under Article 143:

(a) the title of the Agreement shall be updated to include the State that has acceded to the Agreement and the words "A MEMBER OF THE EAST AFRICAN COMMUNITY" shall be updated to "MEMBERS OF THE EAST AFRICAN COMMUNITY";

(b) the EAC Partner State(s) listed under "PARTIES TO THE AGREEMENT" shall be updated to include the State that has acceded to the Agreement; and

(c) all references to "EAC Partner State(s)" in this Agreement, including its Annexes and Protocols, shall be updated to "EAC Partner States".

2. Upon accession of all the Contracting Parties to The Treaty for the Establishment of the East African Community, under Article 143:

(a) the title of the Agreement shall be replaced with the following:

ECONOMIC PARTNERSHIP AGREEMENT BETWEEN THE EAST AFRICAN COMMUNITY PARTNER STATES, OF THE ONE PART, AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, OF THE OTHER PART

(b) the EAC Partner State(s) listed under "PARTIES TO THE AGREEMENT" shall be updated to include all the Contracting Parties to The Treaty for the Establishment of the East African Community.