(d) providing advice and recommendations to the Joint Committee on cooperation needs regarding trade in goods matters;
(e) reviewing the amendments to the HS to ensure that each Party's obligations under this Agreement are not altered, and consulting to resolve any conflicts between: such amendments to the HS and Annex 2 and national nomenclatures;
(f) consulting on and endeavouring to resolve any difference that may arise among the Parties on matters related to the classification of goods under the HS, including adoption and review of transposition methodologies and guidelines;
(g) reviewing data on trade in goods in relation the implementation of this Chapter;
(h) assessing matters that relate to trade in goods and undertaking any additional work that the Joint Committee may assign to it; and
(i) reviewing and monitoring any other matter related to the implementation of thischapter.
Chapter 3. TRADE REMEDIES
Article 3.1. Scope
1. With respect to the UAE, this Chapter shall apply to investigations and measures that aretaken under the authority of the Ministry of Economy, or its successor.
2. With respect to Malaysia, this Chapter shall apply to investigations and measures that aretaken under the authority of the Ministry of Investment Trade and Industry, or its successor.
3. This Chapter applies to trade remedy measures adopted or maintained by a Party affectingtrade in goods among the Parties.
Section A. BILATERAL SAFEGUARD MEASURES
Article 3.2. Definitions
For the purposes of this Section:
(a) bilateral safeguard measure or safeguard measures means a transitional bilateralsafeguard measure or measures described in Article 3.3;
(b) domestic industry means with respect to an imported product, the producers as a whole of the like or directly competitive product or those producers whose collective production of the like or directly competitive product constitutes a major proportion of the total domestic production of such product;
(c) provisional measure means a provisional bilateral safeguard measure described in Article 3.6;
(d) serious injury means a significant overall impairment in the position of a domestic industry;
(e) 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
(f) transition period, in relation to a particular product, means the period from the entry into force of this Agreement until two years after the date on which the customs dutyon that product is to be reduced or eliminated in accordance with Annex 2A (Schedule of Tariff Commitments).
Article 3.3. Application of Bilateral Safeguard Measures
During the transition period, if as a result of the reduction or elimination of a customs duty pursuant to this Agreement, an originating product of a Party is being imported into the other Party's territory in such increased quantities, in absolute terms or relative to domestic production, and under such conditions as to cause or threaten to cause serious injury to the domestic industry producing like or directly competitive products, the other Party may, to the extent necessary to prevent or remedy serious injury and facilitate adjustment, apply a bilateral safeguard measure consisting of:
(a) the suspension of the further reduction of any rate of customs duty provided for under this Agreement on the originating product from the date on which the safeguard measure is applied; or
(b) an increase of the rate of customs duty on the originating product to a level not toexceed the lesser of -
(i) the most-favoured-nation (hereinafter "MFN") applied rate of duty on the good in effect at the time the measure is applied; or
(ii) the MFN applied rate of customs duty in effect on the day immediately preceding the date of entry into force of this Agreement.
Article 3.4. Scope and Duration of Bilateral Safeguard Measures
1. A Party shall apply a bilateral safeguard measure for such period of time as may be necessary to prevent or remedy serious injury and to facilitate adjustment. A Party may apply a bilateral safeguard measure for an initial period of no longer than two years. The period of a bilateral safeguard measure may be extended by up to one year provided that the conditions of this Chapter are met and that the bilateral safeguard measure continues to be applied to the extent necessary to prevent or remedy serious injury and that there is evidence that the industry is adjusting. The total period of a bilateral safeguard measure, including any extensions thereof, shall not exceed three years.
2. Regardless of its duration or whether it has been subject to extension, a bilateral safeguard measure on a product shall terminate at the end of the transition period for such product. No new bilateral safeguard measure may be applied to a product after the end of the transition period.
3. In order to facilitate adjustment in a situation where the proposed duration of a bilateral safeguard measure is over one year, the Party applying the bilateral safeguard measure shall progressively liberalise it at regular intervals during the application of the bilateral safeguard measure, including at the time of any extension.
4. A Party shall not apply a final bilateral safeguard measures again on the same originating product during the transition period.
5.On the termination of a bilateral safeguard measure, the Party that applied the bilateralsafeguard measure shall apply the rate of customs duty in effect as set out in its Tariff Schedule asspecified in Annex 2A (Schedule of Tariff Commitments) on the date of termination as if thebilateral safeguard measure had never been applied.
Article 3.5. Investigation
1.A Party may apply or extend a bilateral safeguard measure only following an investigation by the Party's investigating authorities in accordance with the same procedures as those providedfor in Articles 3 and 4.2(c) of the Safeguards Agreement. Articles 3 and 4.2(c) of the Safeguards Agreement are incorporated into and made a part of this Agreement, mutatis mutandis.
2. The investigation shall include reasonable public notice to all interested parties and public hearings or other appropriate means in which importers, exporters and other interested parties could present evidence and their views, including the opportunity to respond to the presentations of other parties and to submit their views, inter alia, as to whether or not the application of a bilateral safeguard measure would be in the public interest.
3. An investigation shall as far as possible be completed within one year. Upon completion of an investigation, the investigating authorities shall promptly publish a summary of the reasonsleading to the imposition of the bilateral safeguard measures.
Article 3.6. Provisional Measures
1. In critical circumstances where delay would cause damage which would be difficult to repair, a Party may apply a provisional measure, which shall take the form of the measure set out Article 3.3, pursuant to a preliminary determination that there is clear evidence that increased imports ofan originating product of the other Party as a result of the reduction or elimination of a duty pursuant to this Agreement have caused or are threatening to cause serious injury.
2.The duration of any provisional measure shall not exceed 200 days, during which period thepertinent requirements of Articles 3.5.1 and 3.5.2 shall be met. The duration of any suchprovisional measure shall be counted as part of the total period referred to in Article 3.4.
3. Any additional duties collected as a result of such provisional measure shall be promptly refunded if the subsequent investigation referred to in Article 3.5 does not determine that increasedimports of an originating product of the other Party have caused or threatened to cause serious injury to a domestic industry. In such a case, the Party that applied the provisional measure shall apply the rate of customs duty set out in its Tariff Schedule in Annex 2A (Schedule of Tariff Commitments) as if the provisional measure had never been applied.
Article 3.7. Notification and Consultation
1. A Party shall promptly notify the other Party, in writing, upon:
(a) initiating an investigation under Article 3.5;
(b) making a finding of serious injury or threat thereof caused by increased imports of an originating product of the other Party as a result of the reduction or elimination of a customs duty on the product pursuant to this Agreement;
(c) taking a decision to apply or extend a safeguard measure, or to apply a provisional measure; and
(d) taking a decision to progressively liberalise a bilateral safeguard measure previously applied.
2. A Party shall provide to the other Party a copy of the public version of the report of its investigating authorities required under Article 3.5.1.
3. A written notice referred to in subparagraph 1(a) shall include:
(a) the reason for the initiation of the investigation;
(b) a precise description of an originating product subject to the investigation and its subheading or more detailed level of the Harmonized System;
(c) the period subject to the investigation; and
(d) the date of initiation of the investigation.
4. A written notice referred to in subparagraphs 1(b) through (d) shall include:
(a) a precise description of the originating good subject to the bilateral safeguard measure, including its heading and subheading under the Harmonized System and the national nomenclature of the Party;
(b) evidence of the serious injury caused by increased imports of the originating good of the Party as a result of the reduction or elimination of a customs duty pursuant to this Agreement;
(c) a precise description of the proposed bilateral safeguard measure;
(d) the proposed date of the introduction of the bilateral safeguard measure, its expected duration, and, if applicable, a timetable for the progressive liberalisation of the bilateral safeguard measures referred to in Article 3.4.3; and
(e) in the case of an extension of the bilateral safeguard measure, evidence that the domestic industry concerned is adjusting.
5. A Party proposing to apply or extend a bilateral safeguard measure shall provide adequate opportunity for prior consultations with the other Party, with a view to, inter alia, reviewing the information provided under paragraph 4, exchanging views on the bilateral safeguard measure and reaching an agreement on compensation as set forth in Article 3.8.
6. Where a Party applies a provisional measure referred to in Article 3.6, on request of the other Party, consultations shall be initiated immediately after such application.
7. The provisions on notification in this Article shall not require a Party to disclose confidential information, the disclosure of which would impede law enforcement or otherwise be contrary to the public interest, or would prejudice the legitimate commercial interests of particular enterprises, public or private.
Article 3.8. Compensation
1. No later than 30 days after it applies a bilateral safeguard measure, a Party shall provide an opportunity for the other Party to consult with it regarding appropriate trade liberalising 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 measure. The applying Party shall provide such compensation as the Parties mutually agree.
2. If the Parties are unable to reach agreement on compensation within 30 days of the commencement of the consultations, the Party against whose originating good the measure is applied may suspend the application of concession with respect to originating good of the applying party that have trade effect substantially equivalent to the bilateral safeguard measure.
3. The Party exercising the rights of suspension may suspend the application of concession only for the minimum period necessary to achieve the substantially equivalent effect.
4. A Party shall notify the other Party in writing at least 30 days before suspending concessions under paragraph 2.
5. The right of suspension referred to in paragraph 2 shall not be exercised for the first two years during which a bilateral safeguard measure is in effect, provided that the bilateral safeguard measure has been taken as a result of an absolute increase in imports.
Section B. GLOBAL SAFEGUARD MEASURES
1. Each Party retains its rights and obligations under Article XIX of GATT 1994 and the Safeguards Agreement. This Agreement does not confer any additional rights or obligations on the Parties with regard to actions taken under Article XIX of GATT 1994 and the Safeguards Agreement.
2. Neither Party shall apply, with respect to the same product, at the same time:
(a) a bilateral safeguard measure as provided in Article 3.3; and
(b) a measure under Article XIX of GATT 1994 and the Safeguards Agreement.
3. Where, as a result of global safeguard measure, a safeguard duty is imposed, the margin of preference, in accordance with Annex 2A (Schedule of Tariff Commitments), shall be maintained.
4. A Party taking a global safeguard measure shall exclude imports of an originating good of the other Party as long as its share of imports of the product concerned in the importing Party does not exceed three per cent of total imports of the concerned product, provided that its share collectively with other developing countries with less than three per cent import account for not more than nine per cent of total imports of the product concerned. (1)
Section C. ANTI-DUMPING AND COUNTERVAILING MEASURES
Article 3.10. Anti-Dumping and Countervailing Measure
1. The Parties reaffirm their rights and obligations under the provisions of Article VI and Article XVI of GATT 1994; Anti-Dumping Agreement and SCM Agreement and the importance of promoting transparency.
2. Except as otherwise stipulated in this Article, this Agreement does not confer any additional rights or obligations on the Parties with regard to anti-dumping and countervailing measures, including the initiation and conduct of anti-dumping and countervailing duty investigations as well as the application of anti-dumping and/or countervailing measures.
3. When the investigating authority of a Party receives a written application by or on behalf of its domestic industry for the initiation of an anti-dumping investigation in respect of a product from the other Party, the former Party shall notify the other Party of the application as far in advance of the initiation of such investigation.
4. The Parties shall make the notifications under Article 12 of Anti-Dumping Agreement and cover letters related to mentioned notifications in English.
5. As soon as possible after accepting an application for a countervailing duty investigation in respect of a product of the other Party, and in any event before initiating an investigation, the Party shall provide written notification in English of its receipt of the application to the other Party and invite the other Party for consultations with the aim of clarifying the situation as to the matters referred to in the application and arriving at a mutually agreed solution.
6. The investigating authority of each Party shall ensure, before a final determination is made, the disclosure of all essential facts under consideration which form the basis for the decision whether to apply definitive measures. This is 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 allow interested parties sufficient time to make their comments.
7. The known interested parties should be granted the right to express their views during anti-dumping and anti-subsidy investigations in accordance with the conditions of each Party’s internal legislation.
8. Should a Party decide to impose provisional or definitive anti-dumping or countervailing duty, the amount of such duty shall not exceed the margin of dumping or amount of the countervailable subsidy, but it should be less than that margin if, pursuant to the Party’s internal legislation, such a lesser duty is in accordance would be adequate to remove the injury to the domestic industry.
9. The Party whose goods are subject to anti-dumping or countervailing measures imposed by the other Party has the right to request consultations in order to discuss the impact of thesemeasures on bilateral trade.
Section D. COOPERATION ON TRADE REMEDIES
Article 3.11. Cooperation on Trade Remedies
The Parties shall endeavour to encourage cooperation on trade remedies, between the relevant authorities of each Party who have responsibility for trade remedy matters.
Section E. DISPUTE SETTLEMENT
Article 3.12. Non-Application of Dispute Settlement
No Party shall have recourse to dispute settlement under Chapter 16 (Dispute Settlement) for any matter arising under this Chapter, except Section A on bilateral safeguard measure of this Chapter.
Chapter 4. CUSTOMS PROCEDURES AND TRADE FACILITATION
Article 4.1. Definitions
For the purpose of this Chapter:
(a) Authorized Economic Operator(s) (AEO) means the program which recognises an operator involved in the international movement of goods in whatever function that has been approved by the national Customs Administration as complying with the World Customs Organization (WCO) or equivalent supply chain security standards;
(b) Customs Administration means the Federal Authority of Identity, Citizenship, Customs, and Port Security for the UAE, and the Royal Malaysian Customs Department for Malaysia;
(c) customs laws means the provisions implemented by legislations and regulations concerning the importation, exportation, transit of goods or any other customs procedures whether relating to customs duties, taxes or any other charges collected by the Customs Administrations, or to measures for prohibition, restriction, or controlenforced by the Customs Administrations;
(d) Customs Mutual Assistance Agreement (CMAA) means the agreement that further enhances customs cooperation and exchange of information between the parties tosecure and facilitate lawful trade;
(e) Customs procedure means the measures applied by the customs authority of a Party to goods and to the means of transport that are subject to its customs laws and regulations;
(f) Mutual Recognition Arrangement (MRA) means the arrangement between theParties that mutually recognise AEO authorisations that has been properly granted byone of the Customs Administrations; and
(g) persons means both natural and legal person, unless the context otherwise requires.
Article 4.2. Scope
This Chapter applies, in accordance with the Parties' respective domestic laws, policies, rules and regulations, to customs procedures applied for the clearance of goods traded between the Parties.
Article 4.3. General Provisions
1. Each Party shall ensure that its customs procedures and practices are predictable, consistent,transparent, non-discriminatory and facilitate trade including through the expeditious clearance ofgoods.
2.Customs procedures of the Parties shall, where possible and to extent permitted by their respective customs laws, conform to the standards and recommended practices of the WCO.
3.To facilitate bilateral trade, the Customs Administration of each Party shall periodically review its customs procedures with a view to their further simplification and development.
Article 4.4. Publication and Availability of Information
1. Each Party shall ensure that its laws, regulations, guidelines, procedures and administrativerulings governing customs matters are promptly published, either on the internet or in print form,and to the extent possible, in the English language.
2.Each Party shall designate, establish and maintain one or more inquiry points to addressinquiries from interested persons pertaining to customs matters and shall endeavour to makeavailable publicly through electronic means, information concerning procedures for making suchinquiries.
3. Nothing in this Article or in any part of this Agreement shall require any Party to publishlaw enforcement procedures and internal operational guidelines including those related to conducting risk analysis and targeting methodologies.
4. Each Party shall, to the extent practicable, and in a manner consistent with its domestic law and legal system, ensure that new or amended laws and regulations of general application related to the movement, release, and clearance of goods, including goods in transit, are published or information on them made otherwise publicly available, as early as possible before their entry intoforce, so that interested parties have the opportunity to become acquainted with the new or amended laws and regulations. Such information and publications shall be available in the Englishlanguage, to the extent possible.
Article 4.5. Risk Management
The Parties shall adopt a risk management approach in its customs activities based on its identified risk of goods, in order to facilitate the clearance of low-risk consignments, while focusing its inspection activities on high-risk goods.
Article 4.6. Paperless Communications
1. For the purposes of facilitating bilateral exchange of international trade data and expediting procedures for the release of goods trade facilitation, each Party shall endeavour to provide anelectronic environment that supports business transactions between its Customs Administrationand their trading entities.
2. The Parties shall exchange views and information on realising and promoting paperlesscommunications between their respective Customs Administration and their trading entities.
3. The respective Customs Administration of the Parties, in implementing initiatives which provide for the use of paperless communications, shall take into account the methodologies agreed at the WCO.
Article 4.7. Advance Rulings
1. In accordance with its domestic laws and regulations, the customs administration of the Parties upon a request shall issue in a reasonable time-bound manner to a person, prior to theimportation of a good into their territory based on a request containing all the necessary information for an advance ruling, in relation to:
(a) tariff classification;
(b) origin of goods; or
(c) the principles to be adopted for the purpose of determination of the value of goods, in accordance with the application of the provisions set forth in the Customs Valuation Agreement.
2. The importing Party shall apply an advance ruling issued by it under paragraph 1 on the date that the ruling is issued or on a later date specified in the ruling and remain in effect for a reasonable period of time and in accordance with the national procedures on advanced ruling unless theadvance ruling is modified or revoked.
3. The advance ruling issued by the Party shall be binding to the person to whom the ruling isissued only.
4. A Party may decline to issue an advance ruling if the facts and circumstances forming the basis of the advance ruling are the subject of a post clearance audit or an administrative, judicial,or quasi-judicial review or appeal. A Party that declines to issue an advance ruling shall promptlynotify, in writing, the person requesting the ruling, setting out the relevant facts and circumstancesand the basis for its decision.
5.The importing Party may modify or revoke an advance ruling:
(a) if the ruling was based on an error of fact;
(b) if there is a change in the material facts or circumstances on which the ruling wasbased;
(c) to conform with a modification of this Chapter; or
(d) to conform with a judicial decision or a change in its domestic law.
6. Each Party shall provide a written notice to the applicant explaining the Party's decision to revoke or modify the advance ruling issued to the applicant.
7. Each Party shall provide that any modification or revocation of an advance ruling shall beeffective on the date on which the modification or revocation is issued, or on such later date as may be specified therein and shall not be applied to importations of a good that have occurred priorto that date unless the person to whom the advance ruling was issued has not acted in accordancewith its terms and conditions.
8. Notwithstanding paragraph 3, the issuing Party may postpone the effective date of themodification or revocation of an advance ruling for a reasonable period of time and in accordancewith each Party's national procedures on advance rulings, where the person to whom the advance ruling was issued demonstrates that he has relied in good faith to his detriment on that ruling.
Article 4.8. Penalties
1. Each Party shall maintain measures imposing criminal, civil, or administrative penalties,whether solely or in combination, for violations of the Party's customs laws, regulations orprocedural requirements.
2. Each Party shall ensure that penalties issued for a breach of a customs law, regulations orprocedural requirements are imposed only on the person(s) responsible for the breach under itslaws.
3. Each Party shall ensure that the penalty imposed by its Customs Administration is dependenton the facts and circumstances of the case and is commensurate with the degree and severity ofthe breach.
4. Each Party shall ensure that it maintains measures to avoid conflicts of interest in theassessment and collection of penalties and duties. No portion of the remuneration of a government official shall be calculated as a fixed portion or percentage of any penalties or duties assessed orcollected.
5. Each Party shall ensure that if a penalty is imposed by its Customs Administration for a breach of a customs law, regulation or procedural requirement, an explanation in writing is provided to the person(s) upon whom the penalty is imposed specifying the nature of the breach and the law, regulation or procedure used for determining the penalty amount.
Article 4.9. Release of Goods
1. Each Party shall adopt or maintain simplified customs procedures for the efficient release ofgoods in order to facilitate trade.
2. Pursuant to paragraph 1, each Party shall adopt or maintain procedures that:
(a) provide for the immediate release of goods upon receipt of the customs declaration and fulfilment of all applicable requirements and procedures;
(b) provide as appropriate, for the electronic submission and processing of import documentation and information, including manifests, prior to the arrival of the goodsin order to expedite the release of goods from customs control upon arrival;
(c) allow goods to be released at the point of arrival without requiring temporary transferto warehouses or other facilities; and
(d) require that the importer be informed if a Party does not promptly release goods, including, to the extent permitted by its law, the reasons why the goods are not released and which border agency, if not the customs administration, has withheld release ofthe goods.
3. Nothing in this Article requires a Party to release a good if its requirements for release have not been met nor prevents a Party from liquidating a security deposit in accordance with its law.
4. Each Party may allow, to the extent practicable and in accordance with its customs laws, goods intended for import to be moved within its territory under customs control from the point ofentry into the Party's territory to another customs office in its territory from where the goods are intended to be released, provided the applicable regulatory requirements are met.