promote mutual understanding of each Party's regulatory approaches and procedures relating to Biosecurity, Food and Primary Products.
In order to give effect to paragraph 3, the Committee may:
establish, monitor and review work plans; and
initiate, develop, adopt, review, and modify implementing arrangements in relation to such technical measures.
All decisions of the Joint Commission shall be made by mutual agreement of the Parties.
All decisions of the committees, subsidiary bodies or working groups established under this Agreement shall be made by mutual agreement of the Parties.
Contact Points and Communications
Each Party shall designate a contact point to receive and facilitate official communications between the Parties on any matter covered by this Agreement, except for matters for which this Agreement establishes a specific contact point.
Unless otherwise provided in this Agreement, each Party shall notify the other Party in writing of its designated contact points no later than 60 days after the date of entry into force of this Agreement.
All official communications in relation to this Agreement shall be in the English language.
Each Party shall promptly notify the other Party, in writing, of any changes to its overall contact point or any other contact point.
Chapter 18. EXCEPTIONS AND GENERAL PROVISIONS
Article 18.1. General Exceptions
For the purposes of Chapter 2 (Trade in Goods), Chapter 3 (Rules of Origin), Chapter 4 (Customs Procedures and Trade Facilitation), Chapter 6 (Sanitary and Phytosanitary Measures) and Chapter 7 (Technical Barriers to Trade) of this Agreement, Article XX of GATT 1994, including its interpretative notes, is incorporated into and made part of this Agreement, mutatis mutandis.
For the purposes of Chapter 8 (Trade in Services) and Chapter 9 (Investment Promotion and Cooperation), Article XIV of GATS, including its footnotes, is incorporated into and made part of this Agreement, mutatis mutandis.
Nothing in this Agreement shall be construed to:
require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests;
prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
relating to the production of or traffic in arms, ammunition and implements of war and to such traffic in other goods and materials, or relating to the supply of services as carried out directly or indirectly for the purpose of supplying or provisioning a military establishment;
relating to fissionable or fusionable materials or the materials from which they are derived;
relating to the protection of critical public infrastructure, whether publicly or privately owned, including communications, power and water infrastructure; or
taken in time of national emergency, war or other emergency in international relations; or
prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
Direct Taxation Measures
For the purposes of this Agreement, "direct taxes" comprise all taxes on total income, on total capital or on elements of income or of capital, including taxes on gains from the alienation of property, taxes on estates, inheritances and gifts, and taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation; and also include the taxes covered under the Convention between the Government of the Republic of India and the Government of New Zealand for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital, done at Auckland on 17 October 1986, as amended by any Protocols thereto (“India-New Zealand DTAA”).
Nothing in this Agreement shall apply to any direct taxation measure.1
Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention2. In the event of any inconsistency between this Agreement and any tax convention, that convention shall prevail over this Agreement.
In the case of a tax convention between or including the Parties, if an issue arises as to whether any inconsistency exists between this Agreement and the tax convention, the issue shall be referred to the relevant competent authorities of the Parties. The competent authorities shall jointly determine the existence and the extent of such inconsistency.
Nothing in this Agreement shall oblige a Party to apply any most-favoured-nation obligation in this Agreement with respect to an advantage accorded by a Party pursuant to a tax convention.
1 For greater certainty, “direct taxation measure” neither includes any indirect taxation measure including customs duties as defined in Article 2.1 (Definitions) nor does it include the measures listed in subparagraphs (i), (ii) and (iii) of Article 2.1 (Definitions).
2 “tax convention” means the India-New Zealand DTAA, or any other international taxation agreement or arrangement including any other convention for the avoidance of double taxation.
Measures to Safeguard the Balance of Payments
Where a Party is in serious balance of payments and external financial difficulties, or under threat thereof, it may:
in the case of trade in goods, in accordance with GATT 1994 and the WTO Understanding on the Balance-of-Payments Provisions of the GATT 1994, including its interpretative notes, adopt restrictive import measures; and
in the case of trade in services, in accordance with Article XII of GATS, adopt or maintain restrictions on trade in services on which it has undertaken specific commitments, including on payments or transfers for transactions related to such commitments. The Parties recognise that particular pressures on the balance of payments of a Party in the process of economic development may necessitate the use of restrictions on trade in services to ensure, inter alia, the maintenance of a level of financial reserves adequate for the implementation of its programme of economic development.
Any restrictions adopted or maintained by a Party under paragraph 1, or any changes therein, shall be notified promptly to the other Party from the date such measures are taken.
To the extent that it does not duplicate the process under the WTO or the International Monetary Fund, the Party adopting or maintaining any restrictions under paragraph 1 shall promptly commence consultations with the other Party from the date of notification in order to review the measures adopted or maintained by it.
Tiriti o Waitangi / Treaty of Waitangi
Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Party or as a disguised restriction on trade in goods and services, nothing in this Agreement shall preclude the adoption by New Zealand of measures it deems necessary to accord more favourable treatment to Māori in respect of matters covered by this Agreement, including in fulfilment of its obligations under te Tiriti o Waitangi / the Treaty of Waitangi.
The Parties agree that the interpretation of te Tiriti o Waitangi / the Treaty of Waitangi, including as to the nature of the rights and obligations arising under it, shall not be subject to the dispute settlement provisions of this Agreement. Chapter 19 (Dispute Settlement) shall otherwise apply to this Article. A panel established under Article 19.7 (Request for Establishment of a Panel) may be
requested by India to determine only whether any measure referred to in paragraph 1 is inconsistent with their rights under this Agreement.
Nothing in this Agreement shall be construed to require either Party to furnish or allow access to information the disclosure of which it considers:
would be contrary to the public interest;
is contrary to any of its legislation including those protecting personal privacy or the financial affairs and accounts of individual customers of financial institutions;
would impede law enforcement; or
would prejudice legitimate commercial interests of particular enterprises, public or private.
Each Party shall, in accordance with its laws and regulations, maintain the confidentiality of information designated as confidential by the other Party pursuant to this Agreement.
Information designated as confidential shall be used only for the purposes specified by the Party providing the information.
Notwithstanding paragraph 1, the information designated as confidential and provided pursuant to this Agreement may be transmitted to a third party subject to prior consent of the Party providing the information.
Nothing in this Article shall prevent a Party from disclosing information where it is required to do so under its law, or to the extent that it may be necessary in the context of judicial or quasi-judicial proceedings. In such situations, the Party that has received the information shall notify the other Party of the release or disclosure.
Any cooperative activities envisaged or undertaken under this Agreement shall be subject to the availability of resources and to the laws, regulations and
policies of the Parties. Costs of cooperative activities shall be borne in such manner as may be mutually determined from time to time between the Parties.
Chapter 19. DISPUTE SETTLEMENT
Article 19.1. Definitions
For the purposes of this Chapter:
“Code of Conduct” means the code of conduct referred to in Article
19.11 (Rules of Procedure and Code of Conduct) and set out in Annex 19B (Code of Conduct for Dispute Settlement);
“complaining Party” means the Party requesting consultations under Article 19.5 (Consultations);
“compliance review panel” means a panel reconvened under Article
19.15 (Compliance Review);
“confidential information” means information which is designated as confidential by a Party;
“DSU” means the Understanding on Rules and Procedures Governing the Settlement of Disputes set out in Annex 2 of the WTO Agreement;
“panel” means a panel established under Article 19.7 (Request for Establishment of a Panel);
“reconvened panel” means a panel reconvened under Article 19.16 (Compensation and Suspension of Concessions or Other Obligations) or Article 19.17 (Review after the Suspension of Concessions or Other Obligations);
“responding Party” means the Party to which a request for consultations is made under Article 19.5 (Consultations); and
“Rules of Procedure” means the rules of procedure referred to in Article 19.11 (Rules of Procedure and Code of Conduct) and set out in Annex 19A (Rules of Procedure for Dispute Settlement).
The Parties shall endeavour to agree on the interpretation and application of this Agreement in accordance with customary rules of interpretation of public international law. The Parties shall make every attempt through cooperation
and consultations to arrive at a mutually agreed solution to any matter that might affect its operation.
Unless otherwise provided in this Agreement, this Chapter shall apply with respect to the avoidance or settlement of all disputes between the Parties regarding the implementation, interpretation or application of this Agreement or whenever a Party considers that:
a measure of the other Party is inconsistent with its obligations under this Agreement; or
the other Party has otherwise failed to carry out its obligations under this Agreement.
Unless the Parties agree otherwise, the timeframes and procedural rules set out in this Chapter shall apply to all disputes governed by this Chapter.
Findings, determinations or recommendations of a panel, a compliance review panel, or a reconvened panel cannot add to or diminish the rights, and obligations of the Parties under this Agreement.
The Parties agree that a panel appointed under this Chapter shall interpret and apply this Agreement in accordance with customary rules of interpretation of public international law.
The panel shall take into account any relevant findings in adopted GATT dispute settlement reports, and rulings and recommendations of the WTO Dispute Settlement Body.
If a dispute regarding any matter arises under this Agreement and another international agreement to which the Parties are party, including the WTO Agreement, the complaining Party may select the forum in which to settle the dispute. The forum selected shall be used to the exclusion of other fora.1
For the purposes of this Article, the complaining Party shall be deemed to have selected the forum in which to settle the dispute when it has requested the establishment of a panel pursuant to paragraph 1 of
1 The exclusion of other fora includes the exclusion of consultations in those fora.
Article Article 19.7 (Request for Establishment of a Panel) or Requested the Establishment of, or Referred a Matter to, a Dispute Settlement Panel Under Another International Agreement. Where Panel Procedures Are Not Provided for Under Another International Agreement, the Complaining Party Shall Be Deemed to Have Selected the Forum When It Commences a Dispute Under the Dispute Settlement Procedures In the Relevant International Agreement.
Either Party may request consultations with the other Party with respect to any matter described in Article 19.3 (Scope) by providing written notification to the other Party. The complaining Party shall set out the reasons for the request, including identification of the measure at issue and an indication of the legal basis for the complaint, and any other issue of concern. Each Party shall accord adequate opportunity for consultations regarding the request for consultation made by the other Party.
If a request for consultations is made, the Party to which the request is made shall reply to the request within 10 days of receipt of the request and shall enter into consultations within a period no later than 30 days after the receipt of the request or, within 15 days of receipt of the request in the case of perishable goods, with a view to reaching a mutually agreed solution.
The Parties shall make every effort to reach a mutually agreed solution to any matter through consultations. To this end:
the Parties shall provide sufficient information as may be available at the stage of consultations to enable a full examination of the matter subject to consultations;
the Parties shall endeavour to ensure the participation of personnel of their competent governmental authorities or other regulatory bodies who have responsibility for or expertise in the matter subject to the consultations;
the Parties shall treat any confidential information exchanged in the course of consultations on the same basis as the Party providing the information; and
the consultations under this Article shall be confidential and without prejudice to the rights of either Party in any further or other proceedings.
Good Offices, Conciliation or Mediation
The Parties may at any time agree to good offices, conciliation, or mediation. Such procedures may begin at any time and be terminated by either Party at any time.
Proceedings involving good offices, conciliation, or mediation and the particular positions taken by the Parties in these proceedings shall be confidential and without prejudice to the rights of either Party in any further or other proceedings.
If the Parties agree, procedures for good offices, conciliation, or mediation may continue while the dispute proceeds for resolution before a panel established under Article 19.7 (Request for Establishment of a Panel).
Request for Establishment of a Panel
The complaining Party may request the establishment of a panel to examine the matter, if:
the responding Party does not enter into consultations within 30 days of receipt of the request for consultations under Article
19.5 (Consultations) or within 15 days of such a request in the case of perishable goods; or
the Parties fail to resolve the matter within 60 days of receipt of the request for consultations or within 30 days of such a request in the case of perishable goods, or within such other period as the Parties mutually agree.
The request to establish a panel shall be made in writing and shall identify:
the specific measures at issue;
whether consultations have been held; and
a brief summary of the factual, and legal, basis of the complaint sufficient to present the problem clearly, including the relevant provisions of this Agreement at issue.
Once a request for the establishment of a panel is made in conformity with paragraph 2, a panel shall be established in accordance with Article 19.8 (Composition of Panels).
Unless the Parties agree otherwise, a panel shall consist of three members.
Within 30 days of the receipt of the written notification requesting the establishment of a panel, each Party shall appoint one panellist, who may be its national, and provide to the other Party a list of up to four nominees for appointment as the chair. The Parties shall agree on the chair from the nominees proposed by each Party.
Within 45 days of receipt of the request for the establishment of a panel, any panellist not yet appointed shall be appointed by the Parties, on request of either Party, by draw of lot from the list of the candidates proposed in accordance with paragraph 2. Where more than one panellist, including the chair is to be selected by draw of lot, the chair shall be selected first.
Where a Party fails to submit its list of up to four nominees within the period specified in paragraph 2, the chair shall be appointed by random draw of lot from the list of nominees already submitted by the other Party.
The date of establishment of the panel shall be the date on which the last panellist is appointed.
If a panellist appointed under this Article resigns or becomes unable to act, a successor panellist shall be appointed in the same manner as prescribed for the appointment of the original panellist and shall have all the powers and duties of the original panellist. In such a case, the work of the panel and any time period applicable to the panel proceedings shall be suspended for the period beginning the date the original panellist becomes unable to act and ending on the date the new panellist is appointed.
Where a panel is reconvened under paragraph 1 of Article 19.15 (Compliance Review), paragraph 6 of Article 19.16 (Compensation and Suspension of Concessions or Other Obligations), or paragraph 4 of Article 19.17 (Review after the Suspension of Concessions or Other Obligations) the reconvened panel shall, where possible, have the same panellists as in the original panel. If the panel cannot be reconvened with all of its original panellists, the procedures for selection of the panellists set out in paragraphs 2 through 5 shall apply for the appointment of any replacement panellist.
Any person appointed as a panellist pursuant to Article 19.8 (Composition of Panels) shall:
have expertise or experience in law, international trade, other matters covered by this Agreement, or the resolution of disputes arising under international trade agreements;
be chosen strictly on the basis of impartiality, objectivity, reliability, sound judgement and independence;
not be employed by, affiliated with, or take instructions from either Party;
not have dealt with the matter in any capacity;
disclose to the Parties information which may give rise to justifiable doubts as to their independence or impartiality; and
comply with the Code of Conduct.
In addition to the requirements under paragraph 1, the chair shall neither be a national of either Party, nor have their usual place of residence in either Party. The chair shall also have experience in dispute settlement procedures.
An individual shall not serve as a panellist for a dispute in which that person has participated under Article 19.6 (Good Offices, Conciliation, or Mediation).
If a Party believes that a panellist is in violation of any of these requirements, the Parties shall consult and, if they agree, the panellist shall be replaced by a new panellist in accordance with the manner prescribed for the appointment of the original panellist. The new panellist shall have all the powers and duties of the original panellist.
Functions and Proceedings of Panels
Unless the Parties agree otherwise, a panel shall perform its functions and conduct its proceedings in a manner consistent with this Agreement, the Rules of Procedure, and the Code of Conduct.
A panel shall make an objective assessment of the matter before it, including an objective assessment of:
the facts of the case;
the applicability of the relevant provisions of this Agreement cited by the Parties;
whether:
the measure at issue is inconsistent with the obligations of this Agreement; or
a Party has otherwise failed to carry out its obligations under this Agreement; and
any other issue of concern that the Parties have jointly requested that the panel address.
Unless the Parties agree otherwise within 30 days of the date of receipt of the request for the establishment of the panel, or within 15 days of the date of receipt of the request for establishment in the case of perishable goods, the panel’s terms of reference shall be:
“To examine, in light of the relevant provisions of this Agreement cited by the Parties, the matter referenced in the request for the establishment of the panel under paragraph 1 of Article 19.7 (Request for Establishment of a Panel), and to make and present in a written report, its findings of law and fact and, if jointly requested by the Parties, its recommendations.”
Rules of Procedure and Code of Conduct
The Rules of Procedure shall ensure that:
there is at least one hearing before the panel at which each Party may present views orally;
hearings shall be open to the public, unless the Parties agree otherwise;
each Party has an opportunity to provide at least an initial submission;
the panel may at any time during the proceeding address questions in writing to a Party or the Parties;
subject to subparagraph (g), each Party may release to the public its own:
written submissions;
written versions of oral statements; or
responses to any requests or questions from the panel;
subject to consultations with the Parties, the panel may seek information or technical advice from an expert that it deems appropriate; and
confidential information is protected.
The panel, after consulting with the Parties, or on the joint request of the Parties may adopt additional Rules of Procedure not inconsistent with this Chapter or the Rules of Procedure.
The reports of the panel shall be drafted without the presence of the Parties. The panellists shall assume full responsibility for the drafting of the reports. Opinions expressed in the reports of the panel by individual panellists shall be anonymous. The reports shall include any separate or dissenting opinions on matters not unanimously agreed by the panel.
Initial Report
Unless the Parties agree otherwise, the panel shall base its report on the relevant provisions of this Agreement, on the submissions and arguments of the Parties, and on any information or technical advice it has obtained in accordance with the Rules of Procedure.
Unless the Parties agree otherwise, the panel shall, within 180 days of the date the panel is established, or in the case of perishable goods, endeavour to, within 120 days of the date the panel is established, present to the Parties an initial report containing:
a descriptive section summarising the submissions and arguments of the Parties;
its findings of fact;
its findings as to whether: