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FTA CONTENTS
Preamble
1. Initial Provisions
2. General Definitions
3. Trade in Goods
4. Rules of Origin and Operational Procedures
Section 1: Rules of Origin
Section 2: Operational Procedures
5. Customs Procedures and Cooperation
6. Trade Remedies
Section 1: General Trade Remedies
Section 2: Bilateral Safeguards
7. Sanitary and Phytosanitary Measures
8. Technical Barriers to Trade
9. Trade in Services
10. Movement of Natural Persons
11. Investment
Section 1: Investment
Section 2: Investor – State Dispute Settlement
12. Intellectual Property
13. Transparency
14. Cooperation
15. Administrative and Institutional Provisions
16. Dispute Settlement
17. Exceptions
18. Final Provisions
ANNEXES
Annex 1: Tariff Schedules
Annex 2: Special Agricultural Safeguard Measures
Annex 3: Mid-Term Review Mechanism
Annex 4: China’s Country-Specific Tariff Quotas for Wool and Wool Tops
Annex 5: Product Specific Rules of Origin
Annex 6: Certificate of Origin
Annex 7: Declaration of Origin
Annex 8: Schedules for Specific Commitments on Services
Annex 9: Sectoral Coverage under Article 107
Annex 10: Commitments on Temporary Entry by Natural Persons
Annex 11: Commitments on Temporary Employment Entry by Natural Persons
Annex 12: Visa Facilitation
Annex 13: Expropriation
Annex 14: The Agreement between Government of the People’s Republic of China and the Government of New Zealand on Cooperation in the Field of Conformity Assessment in Relation to Electrical and Electronic Equipment and Components.
IMPLEMENTING ARRANGEMENTS
Implementing Arrangement: Chapter 7 A: Competent Authorities and Sanitary and Phytosanitary Contact Points
Implementing Arrangement: Chapter 8 A: Technical Barriers to Trade Competent Authorities
PREAMBLE
The Governments of the People’s Republic of China (“China”) and New Zealand (“New Zealand”) hereinafter referred to collectively as “the Parties”:
Inspired by their longstanding friendship and growing bilateral economic and trade relationship since the establishment of diplomatic relations in 1972;
Recalling the Trade and Economic Cooperation Framework between the People’s Republic of China and New Zealand adopted on 28 May 2004 with the objective of strengthening the comprehensive and stable economic and trade relationship between the Parties;
Recognising that the strengthening of their economic partnership through a Free Trade Agreement, which removes barriers on the trade of goods and services and investment flows, will produce mutual benefits for China and New Zealand;
Desiring to avoid distortions in their reciprocal trade and to create an expanded market for the goods and services in their territories through establishing clear rules governing their trade which will ensure a predictable commercial framework for business operations;
Mindful that fostering innovation and the promotion and protection of intellectual property rights will encourage further trade, investment and cooperation between the Parties;
Building on their rights, obligations and undertakings under the Marrakesh Agreement Establishing the World Trade Organization and other multilateral, regional and bilateral agreements and arrangements;
Mindful of their commitment to the Asia-Pacific Economic Cooperation (“APEC”) goals and principles, and in particular the efforts of all APEC economies to meet the APEC Bogor goals of free and open trade and the actions subscribed in the Osaka Action Agenda;
Upholding the rights of their governments to regulate in order to meet national policy objectives, and preserving their flexibility to safeguard the public welfare;
Mindful that economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development and that closer economic partnership can play an important role in promoting sustainable development;
Desiring to strengthen their economic partnership to bring economic and social benefits, to create new opportunities for employment and to improve the living standards of their peoples;
Have agreed as follows:
CHAPTER 1 INITIAL PROVISIONS
Article 1 Establishment of the Free Trade Area
The Parties to this Agreement, consistent with Article XXIV of GATT 1994 and Article V of GATS, hereby establish a free trade area.
Article 2 Objectives
1. The objectives of this Agreement, as elaborated more specifically through its principles and rules, are to:
(a) encourage expansion and diversification of trade between the Parties;
(b) eliminate barriers to trade in, and facilitate the cross-border movement of, goods and services between the Parties;
(c) promote conditions of fair competition in the free trade area;
(d) substantially increase investment opportunities between the Parties;
(e) provide for the protection and enforcement of intellectual property rights in each Party’s territory in accordance with the provisions of the TRIPS Agreement and enhance and strengthen cooperation on intellectual property rights; and
(f) create an effective mechanism to prevent and resolve trade disputes.
2. The Parties seek to support the wider liberalisation process in APEC consistent with its goals of free and open trade and investment.
Article 3 Relation to Other Agreements
1. Nothing in this Agreement shall derogate from the existing rights and obligations of a Party under the WTO Agreement or any other multilateral or bilateral agreement to which it is a party.
2. In the event of any inconsistency between this Agreement and any other agreement to which the Parties are party, the Parties shall immediately consult with each other with a view to finding a mutually satisfactory solution in accordance with customary rules of interpretation of public international law.
CHAPTER 2 GENERAL DEFINITIONS
Article 4 General Definitions
For the purposes of this Agreement, unless otherwise specified:
Agreement means the Free Trade Agreement between the Government of the People’s Republic of China and the Government of New Zealand;
APEC means Asia-Pacific Economic Cooperation;
customs duty includes any duty or charge of any kind imposed in connection with the importation of a good, but does not include:
(a) any charge equivalent to an internal tax imposed consistently with Article III:2 of GATT 1994;
(b) any anti-dumping or countervailing duty applied consistently with the provisions of Article VI of GATT 1994, the WTO Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, or the WTO Agreement on Subsidies and Countervailing Measures; and
(c) any fee or other charge in connection with importation commensurate with the cost of services rendered;
days means calendar days;
existing means in effect on the date of entry into force of this Agreement;
FTA Joint Commission means the China – New Zealand Free Trade Area Joint Commission established under Article 179;
GATS means the General Agreement on Trade in Services, which is part of the WTO Agreement;
GATT 1994 means the General Agreement on Tariffs and Trade 1994, which is part of the WTO Agreement;
goods means domestic products as these are understood in GATT 1994 and includes originating goods;
goods and products shall be understood to have the same meaning, unless the context otherwise requires;
measure includes any law, regulation, procedure, requirement or practice;
originating means qualifying under the rules of origin set out in Chapter 4 (Rules of Origin and Operational Procedures);
person means a natural person or a juridical person;
TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights, which is part of the WTO Agreement;
WCO means the World Customs Organization;
WTO means the World Trade Organization;
WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done on 15 April 1994.
CHAPTER 3 TRADE IN GOODS
Article 5 Scope
Except as otherwise provided, this Chapter shall apply to trade in all goods between the Parties.
Article 6 National Treatment
Each Party shall accord national treatment to the goods of the other Party in accordance with Article III of GATT 1994. To this end, the provisions of Article III of GATT 1994 and its interpretative notes are incorporated into and shall form part of this Agreement, mutatis mutandis.
Article 7 Elimination of Customs Duties
1. Except as otherwise provided in this Agreement, neither Party may increase any existing customs duty, or adopt any new customs duty, on an originating good of the other Party.
2. Except as otherwise provided in this Agreement, and subject to a Party’s Tariff Schedule as set out in Annex 1, as at the date of entry into force of this Agreement each Party shall eliminate its customs duties on originating goods of the other Party.
Article 8 Accelerated Tariff Elimination
1. At the request of either Party, the Parties shall consult to consider accelerating the elimination of customs duties on originating goods as set out in their Tariff Schedules in Annex 1.
2. An agreement by the Parties to accelerate the elimination of customs duties on originating goods shall supersede any duty rate determined pursuant to their Schedules for such good and shall enter into force following approval by each Party in accordance with Article 180.2(b)(i) and their respective applicable legal procedures.
3. A Party may at any time accelerate unilaterally the elimination of customs duties on originating goods of the other Party set out in its Tariff Schedule. A Party considering doing so shall inform the other Party as early as practicable before the new rate of customs duty takes effect.
Article 9 Administrative Fees and Formalities
1. Each Party shall ensure, in accordance with Article VIII.1 of GATT 1994, that all fees and charges of whatever character (other than customs duties, charges equivalent to an internal tax or other internal charge applied consistently with Article III.2 of GATT 1994, and anti-dumping and countervailing duties) imposed on or in connection with import or export are limited in amount to the approximate cost of services rendered and do not represent an indirect protection to domestic goods or a taxation on imports or exports for fiscal purposes.
2. Each Party shall make available through the Internet or a comparable computer-based telecommunications network a current list of the fees and charges it imposes in connection with importation or exportation.
Article 10 Agricultural Export Subsidies
1. For the purposes of this Article, agricultural goods means those products listed in Annex 1 of the WTO Agreement on Agriculture and export subsidies shall have the meaning assigned to that term in Article 1(e) of the WTO Agreement on Agriculture, including any amendment of that article.
2. The Parties share the objective of the multilateral elimination of export subsidies for agricultural goods and shall work together toward an agreement in the WTO to eliminate those subsidies and prevent their reintroduction in any form.
3. Neither Party shall introduce or maintain any export subsidy on any agricultural good destined for the territory of the other Party.
Article 11 Non-Tariff Measures
1. A Party shall not adopt or maintain any non-tariff measures on the importation of any good of the other Party or on the exportation of any good destined for the territory of the other Party except in accordance with its WTO rights and obligations or in accordance with other provisions of this Agreement.
2. Each Party shall ensure its non-tariff measures permitted in paragraph 1 are not prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to trade between the Parties.
Article 12 Consumer Protection
1. The Parties affirm their concern to provide protection in their territories from deceptive practices or the use of false or misleading descriptions in trade.
2. Each Party shall provide the legal means for interested parties to prevent the sale of products within the Party's territory which, under the laws of that Party, are labelled in a manner which is false, deceptive or misleading or is likely to create an erroneous impression about the character, composition, quality, or origin, including the country of origin, of the product.
Article 13 Special Agricultural Safeguard Measures
1. China may apply a special safeguard measure to agricultural goods specified in Table One of Annex 2, in accordance with this Article.
2. If during any given calendar year the volume of imports from New Zealand of an originating good listed in Table One of Annex 2 exceeds the trigger level for that product in that calendar year as set out in Table Two of Annex 2, China may apply a special safeguard measure to that product in the form of an additional customs duty.
3. The sum of the additional customs duty applied under paragraph 2 and any other customs duties applied to the product in question shall not exceed the lesser of the most-favoured-nation (“MFN”) applied rate of customs duty in effect on the date on which the special safeguard measure is applied or the base rate.
4. China may maintain a special safeguard measure applied under paragraph 2 only until the end of the calendar year in which China applies the measure.
5. Supplies of the product in question which were en route to China on the basis of a contract settled before the additional customs duty is applied under paragraph 2 shall be exempted from such additional customs duty, provided that they may be counted in the volume of imports of the product in question during the following calendar year for the purposes of a determination under paragraph 2 in that calendar year.
6. Any special safeguard measure shall be applied in a transparent manner. China shall ensure that the volume of imports is published regularly in a manner which is readily accessible to New Zealand, and shall give notice in writing, including relevant data, to New Zealand as far in advance as may be practicable and in any event within 10 days of the implementation of such action.
7. China may not apply or maintain, with respect to the same product, a special safeguard measure and at the same time apply or maintain a measure under Article XIX of GATT 1994 and the WTO Agreement on Safeguards or under Section 2 of Chapter 6 (Trade Remedies) of this Agreement.
Article 14 Mid-Term Review Mechanism
Following the application of the tariff reduction specified in Annex 1 of this Agreement for 2013 and before the application of tariff reduction specified therein for 2014, the Committee on Trade in Goods established under Article 16 shall conduct a review in accordance with Annex 3.
Article 15 Contact Points
Each Party shall designate one or more contact points to facilitate communications between the Parties on any matter covered by this Chapter, and shall provide details of such contact points to the other Party. The Parties shall notify each other promptly of any amendments to the details of their contact points.
Article 16 Committee on Trade in Goods
1. The Parties hereby establish a Committee on Trade in Goods, comprising representatives of each Party.
2. The Committee shall meet on the request of either Party to consider any matter arising under this Chapter, Chapter 4 (Rules of Origin and Operational Procedures), Chapter 5 (Customs Procedures and Cooperation) or Chapter 6 (Trade Remedies).
3. The Committee’s functions shall include:
(a) promoting trade in goods between the Parties, including through consultations on accelerating tariff elimination under this Agreement and other issues as appropriate; and
(b) addressing barriers to trade in goods between the Parties, especially those related to the application of non-tariff measures.
CHAPTER 4 RULES OF ORIGIN AND OPERATIONAL PROCEDURES
Section 1: Rules of Origin
Article 17 Definitions
For the purposes of this Chapter:
CIF means the value of the good imported inclusive of the cost of insurance and freight up to the port or place of entry in the country of importation;
Customs Valuation Agreement means the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994, which is part of the WTO Agreement;
FOB means the value of the good free on board inclusive of the cost of transport to the port or site of final shipment abroad;
generally accepted accounting principles means the recognized accounting standards of a Party with respect to the recording of revenues, expenses, costs, assets and liabilities, the disclosure of information and the preparation of financial statements. Those standards may encompass broad guidelines of general application as well as detailed standards, practices and procedures;
Harmonized System means the Harmonized Commodity Description and Coding System of the World Customs Organization;
materials means any matter or substance used in the production or transformation of another good, including a part or ingredient;
originating materials or originating goods means materials or goods which qualify as originating in accordance with the provisions of this Section;
packing materials and containers for shipment means goods used to protect a good during its transportation, other than containers or packaging materials used for retail sale;
producer means a person who engages in the production of a good;
production means methods of obtaining goods, including growing, raising, mining, harvesting, fishing, farming, trapping, hunting, capturing, gathering, collecting, breeding, extracting, manufacturing, processing or assembling a good.
Article 18 Preferential Tariff Treatment
Preferential tariff treatment under this Agreement shall be applied to goods that satisfy the requirements of this Chapter and which are consigned directly between the Parties.
Article 19 Originating Goods
Unless otherwise indicated in this Section, a good shall be considered as originating in a Party when:
(a) the good is wholly obtained or produced in the territory of a Party as set out and defined in Article 20, including where required to be so under Annex 5;
(b) the good is produced entirely in the territory of one or both Parties, exclusively from materials whose origin conforms to the provisions of this Section; or
(c) the good is produced in the territory of one or both Parties, using non-originating materials that conform to a change in tariff classification, a regional value content, a process requirement or other requirements specified in Annex 5, and the good meets the other applicable provisions of this Section.
Article 20 Goods Wholly Obtained
Within the meaning of Article 19(a), the following goods shall be considered as wholly obtained or produced in the territory of a Party:
(a) plant products harvested, picked or gathered in the territory of a Party;
(b) live animals born and raised in the territory of a Party;
(c) goods obtained from live animals raised in the territory of a Party;
(d) goods obtained from hunting, trapping, fishing, farming, gathering or capturing conducted in the territory of a Party;
(e) minerals and other naturally occurring substances, not included in paragraphs (a) to (d) above, extracted or taken from its soil, waters, seabed or beneath its seabed;
(f) goods extracted or taken by a Party, or a person of a Party, from the waters, seabed or subsoil beneath the seabed outside the territorial waters of that Party, provided that the Party has the right to exploit such waters, seabed or subsoil beneath the seabed under that Party's applicable domestic law in accordance with relevant international agreements to which that Party is a party;
(g) goods (fish, shellfish, plant and other marine life) taken within the territorial waters or the Exclusive Economic Zone of a Party seaward of the territorial sea under that Party’s applicable laws in accordance with relevant international agreements to which that Party is a party, or taken from the high seas, by a vessel registered or recorded with a Party and flying or entitled to fly the flag of that Party;
(h) goods processed and/or made on board factory ships registered or recorded with a Party and flying or entitled to fly the flag of that Party, exclusively from goods referred to in paragraph (g) above;
(i) scrap and waste derived from processing operations in the territory of a Party and fit only for the recovery of raw materials, or used goods collected in the territory of a Party provided that such goods are fit only for the recovery of raw materials;
(j) goods obtained or produced in the territory of a Party solely from goods referred to in paragraphs (a) to (i) above.
Article 21 Change in Tariff Classification
A change in tariff classification under Annex 5 requires that the nonoriginating materials used in the production of the goods undergo a change of tariff classification as a result of processes performed in the territory of one or both Parties.
Article 22 Regional Value Content
1. Where Annex 5 refers to a Regional Value Content (“RVC”), the RVC shall be calculated as follows:
RVC =（FOB – VNM）/ FOB x 100
where:
RVC is the regional value content, expressed as a percentage;
FOB is the FOB value of the goods; and
VNM is the value in CIF terms of non-originating materials (including materials of undetermined origin).
2. The value of the non-originating materials shall be:
(a) the CIF value at the time of importation of the material; or
(b) the earliest ascertained price paid or payable for the non-originating materials in the territory of the Party where the working or processing takes place. When the producer of a good acquires nonoriginating materials within that Party the value of such materials shall not include freight, insurance, packing costs, and any other costs incurred in transporting the material from the supplier’s warehouse to the producer’s location.
3. Both the FOB and CIF values referred to above shall be determined pursuant to the Customs Valuation Agreement.
Article 23 Accumulation
Where originating goods or materials of a Party are incorporated into a good in the other Party's territory, the goods or materials so incorporated shall be regarded to be originating in the latter's territory.
Article 24 Minimal Operations or Processes
1. For purposes of this Article, “simple” generally describes activities which need neither special skills nor special machines, apparatus or equipment specially produced or installed for carrying out the activity.
2. Operations or processes which contribute minimally to the essential characteristics of the goods, either by themselves or in combination, are considered to be minimal operations or processes and do not confer origin.
These include:
(a) operations to ensure the preservation of goods in good condition during transport and storage, such as drying, freezing, ventilation, chilling and like operations;
(b) simple operations consisting of sifting, sorting, grading, screening, classifying, washing, cutting, slitting, bending, coiling, or uncoiling;
(c) breaking-up and assembly of consignments;
(d) packing, unpacking or repacking operations;
(e) simple packaging operations, such as simple placing in bottles, cans, flasks, bags, cases, boxes, fixing on cards or boards;
(f) affixing or printing marks, labels, logos or other like distinguishing signs on products or their packaging;
(g) mere dilution with water or another substance that does not materially alter the characteristics of the goods;
(h) husking, partial or total bleaching, polishing, and glazing of cereals other than rice;
(i) operations to colour sugar or form sugar lumps.
Article 25 Direct Consignment
1. For the purposes of Article 18, the following shall be considered as consigned directly from the exporting Party to the importing Party:
(a) goods that are transported without passing through the territory of a non-Party;
(b) goods whose transport involves transit through one or more non- Parties with or without trans-shipment or temporary storage of up to 6 months in such non-Parties, provided that:
(i) the goods do not enter into trade or commerce there; and
(ii) the goods do not undergo any operation there other than unloading and reloading, repacking, or any operation required to keep them in good condition.
2. Compliance with the provisions set out in paragraph 1(b) shall be evidenced by presenting the customs authorities of the importing Party either with customs documents of the non-Parties or with any other documents.
Article 26 Packing and Containers for Transportation
Containers and packing materials used for the transport of goods shall not be taken into account in determining the origin of the goods.
Article 27 Packaging Materials and Containers for Retail Sale
Where goods are subject to a change in tariff classification criterion set out in Annex 5, the origin of the packaging materials and containers in which goods are packaged for retail sale shall be disregarded in determining the origin of the goods, provided that the packaging materials and containers are classified with the goods. However, if the goods are subject to an RVC requirement, the value of the packaging materials and containers used for retail sale shall be taken into account as originating materials or non-originating materials as the case may be when determining the origin of the goods.
Article 28 Accessories, Spare Parts and Tools
1. With regard to the change in tariff classification requirements for origin specified in Annex 5, accessories, spare parts, tools, instructional and information materials presented with the good upon importation shall be disregarded in the determination of the origin of the good, provided that these are classified with and not invoiced separately from the good.
2. Where the goods are subject to an RVC requirement, the value of the accessories, spare parts, tools, instructional and information materials shall be taken into account as originating materials or non-originating materials, as the case may be, in calculating the RVC of the goods.
3. This Article applies only where the quantities and values of said accessories, spare parts, tools, instructional and information materials are customary for the good.
Article 29 Neutral Elements
1. In determining whether a good is an originating good, the origin of any neutral elements as defined in paragraph 2 shall be disregarded.
2. Neutral elements are goods used in the production, testing or inspection of another good but not physically incorporated into the good, or goods used in the maintenance of buildings or the operation of equipment associated with the production of a good. These include:
(a) fuel, energy, catalysts and solvents;
(b) equipment, devices and supplies used for testing or inspecting the goods;
(c) gloves, glasses, footwear, clothing, safety equipment and supplies;
(d) tools, dies and moulds;
(e) spare parts and materials used in the maintenance of equipment and buildings;
(f) lubricants, greases, compounding materials and other materials used in production or used to operate equipment and buildings;
(g) any other goods that are not incorporated into the good but whose use in the production of the good can reasonably be demonstrated to be a part of that production.
Article 30 Interchangeable Materials
1. In determining whether a good is an originating good, any interchangeable materials shall be distinguished by:
(a) physical separation of the goods; or
(b) an inventory management method recognised in the generally accepted accounting principles of the exporting Party.
2. Interchangeable materials are goods or materials which are interchangeable for commercial purposes, whose properties are essentially identical, and between which it is impractical to differentiate by a mere visual examination.
Article 31 De Minimis
A good that does not meet tariff classification change requirements, pursuant to the provisions of Annex 5, shall nonetheless be considered to be an originating good if:
(a) the value of all non-originating materials, including materials of undetermined origin, that do not meet the tariff classification change requirement does not exceed 10% of the FOB value of the given good, determined pursuant to Article 22; and
(b) the good meets all the other applicable criteria of this Section.
Article 32 Compliance
Compliance with the requirements of this Section shall be determined in accordance with the provisions of Section 2 as applicable.
Section 2: Operational Procedures
Article 33 Definitions
For the purposes of this Section:
authorized body means any government authority or other entity authorized under the domestic legislation of a Party to issue a Certificate of Origin;
Certificate of Origin means a form issued by an authorized body of the exporting Party, identifying the goods being consigned between the Parties and certifying, for the purposes of Section 1 of this Chapter, that the goods to which the certificate relates originate in a Party;
competent authority means a government agency responsible for carrying out verification activities under Article 41, and notified by each Party to the other Party;
Declaration of Origin means a statement as to the origin of the goods made by the manufacturer, producer, supplier or exporter of those goods or by any other competent person;
origin document means a Certificate of Origin, a Declaration of Origin or other documentary evidence of origin;
other documentary evidence of origin means any other documentary evidence sufficient to substantiate the origin of the goods.
Article 34 Granting Preference
The importing Party shall grant preferential tariff treatment to goods imported from the other Party only in cases where an importer claiming preferential tariff treatment provides to the importing customs administration upon importation of the goods, in accordance with this Chapter, a Certificate of Origin, a Declaration of Origin, or any other documentary evidence of origin that the importing Party may decide.
Article 35 Refund of Import Duties or Deposits
1. Where a Certificate of Origin or a Declaration of Origin, as the case may be, is not provided at the time of importation of a good from a Party pursuant to Article 34, the importing Party may impose the applied non-preferential import customs duty or require payment of a deposit on that good, where applicable. In such a case the importer may apply for a refund of any excess import customs duty or deposit paid within one year of the date on which the good was imported, provided that:
(a) a written declaration that the good presented qualifies as an originating good was provided to the customs administration of the importing Party at the time of importation; and
(b) a valid Certificate of Origin or Declaration of Origin, as the case may be, is provided in relation to the good imported.
2. The requirement in paragraph 1(a) shall not apply for the first 12 months following entry into force of this Agreement.
Article 36 Certificate of Origin
1. A Certificate of Origin shall be in the format as set out in Annex 6, and shall:
(a) contain a unique certificate number;
(b) cover the goods presented under a single import customs declaration;
(c) state the basis on which the goods are deemed to qualify as originating for the purposes of Section 1 of this Chapter;
(d) contain security features, such as specimen signatures or stamps as advised to the importing Party by the exporting Party; and
(e) be completed in English.
2. A Certificate of Origin shall remain valid for 12 months from the date of issue.
3. Only the original Certificate of Origin marked “ORIGINAL” shall be submitted within the said period to the importing customs administration.
4. In the event of theft, loss or damage of a Certificate of Origin, the exporter or manufacturer may make a written request to the authorized bodies of the exporting Party for issuing a certified copy, provided that the exporter or manufacturer makes sure that the original copy previously issued has not been used. The certified copy shall bear the words “CERTIFIED TRUE COPY of the original Certificate of Origin number ___ dated ___”. If the importing customs administration ascertains that the original copy has been used, the certified copy shall be invalid and vice versa.
5. The format and any requirements set out in Annex 6 may be revised or modified by joint decision through an exchange of letters between the Parties.
Article 37 Declaration of Origin
1. A Declaration of Origin shall be in the format as set out in Annex 7, and shall be accepted in place of a Certificate of Origin:
(a) for any consignment whose aggregate customs value does not exceed US$1,000 or its equivalent in the currency of the importing Party, or such higher amount as that Party may establish;
(b) for any consignment of goods covered by an advance ruling in accordance with Article 52 that deems the good to qualify as originating, so long as the facts and circumstances on which the ruling was based remain unchanged and the ruling remains legally valid; or
(c) when the importing Party otherwise decides, for any reason, that a Certificate of Origin is not required in relation to a specific consignment or in general.
2. Notwithstanding paragraph 1, where an importation forms part of a series of importations that may reasonably be considered to have been undertaken or arranged for the purposes of circumventing the requirements of this Section, the importing Party may deny preferential tariff treatment.
3. A Declaration of Origin shall cover the goods presented under a single import customs declaration, and shall remain valid for 12 months from the date of issue.
4. The format and any requirements set out in Annex 7 may be revised or modified by joint decision through an exchange of letters between the Parties.
Article 38 Amendments to Origin Documents
1. Neither erasures nor superimpositions shall be permitted on any origin documents. Any amendment shall be made by striking out the erroneous information and making any addition which might be required. Such alterations shall be endorsed by the person who made them.
2. Any unused space shall be crossed out to prevent any addition subsequent to certification.
Article 39 Retention of Origin Documents
1. Each Party shall require its producers, exporters and importers to retain origin documents for a period specified in its domestic legislation.
2. Each Party shall ensure that its authorized bodies retain copies of Certificates of Origin and other documentary evidence of origin for a period specified in its domestic legislation.
Article 40 Authorized Bodies
1. A Certificate of Origin shall be issued only by an authorized body in the exporting Party.
2. Each Party shall inform the customs administration of the other Party of the name of each authorized body, as well as relevant contact details, and shall provide details of any security features for relevant forms and documents used by each authorized body, prior to the issuance of any certificates by that body. Any change in the information provided above shall be advised promptly to the customs administration of the other Party.
Article 41 Verification of Origin
1. For the purposes of determining whether goods imported into the territory of a Party from the territory of the other Party qualify as originating goods, the importing customs administration may verify any claims for tariff preference by means of:
(a) written requests for additional information from the importer;
(b) written requests for additional information from the exporter or producer in the territory of the exporting Party;
(c) requests that the competent authorities of the exporting Party verify the origin of a good; or
(d) such other procedures as the customs administrations of the Parties may jointly decide.
2. A verification process under paragraph 1 shall only be initiated when there are reasonable grounds to doubt the accuracy or authenticity of origin documents, the origin status of the goods concerned or the fulfilment of any other requirements under this Section, and when customs duty is sufficiently material to warrant the request.
3. A verification request to the competent authority of the exporting Party shall specify the reasons, and any documents and information obtained justifying the verification activities shall be forwarded to the competent authority of the requested Party.
4. The Parties shall develop an electronic verification system to ensure the effective and efficient implementation of this Section in a manner and within a timeframe to be jointly determined by the Parties.
Article 42 Denial of Preferential Tariff Treatment
1. A Party may deny preferential tariff treatment to a good when:
(a) the name of the relevant authorized body or any security features for relevant forms and documents used by that authorized body, or any change in the above information, has not been advised to the customs administration of the other Party;
(b) the importer, exporter, manufacturer or producer, as appropriate, fails to provide information which the Party has requested in the course of a verification process under Article 41, or the requested competent authority is unable for any reason to respond to the request to the satisfaction of the importing customs administration, within 6 months of the date of request; or
(c) the good does not or did not comply with the other requirements of this Chapter, including where:
(i) the Certificate of Origin has not been duly completed and signed;
(ii) the origin of the goods is not in conformity with Section 1;
(iii) the data provided under the Certificate of Origin does not correspond to those of the supporting documents submitted; or
(iv) the description, quantity and weight of goods, marks and number of packages, number and kinds of packages, as specified, do not conform to the goods imported.
2. In the event preferential tariff treatment is denied, the importing Party shall ensure that its customs administration provides in writing to the exporter, the importer or producer, as the case may be, the reasons for that decision.
Article 43 Review
The competent authorities of the Parties shall review the procedures under this Section as they mutually deem necessary.
CHAPTER 5 CUSTOMS PROCEDURES AND COOPERATION
Article 44 Definitions
For the purposes of this Chapter:
customs administration means:
(a) in relation to China, the General Administration of Customs of the People’s Republic of China; and
(b) in relation to New Zealand, the New Zealand Customs Service;
customs law means any legislation administered, applied, or enforced by the customs administration of a Party;
customs procedures means the treatment applied by each customs administration to goods and means of transport that are subject to customs control;
Customs Valuation Agreement means the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994, which is part of the WTO Agreement;
means of transport means various types of vessels, vehicles, aircraft and pack-animals which enter or leave the territory carrying persons, goods or articles.
Article 45 Scope and Objectives
1. This Chapter shall apply, in accordance with the Parties’ respective international obligations and domestic customs law, to customs procedures applied to goods traded between the Parties and to the movement of means of transport between the Parties.
2. The objectives of this Chapter are to:
(a) simplify and harmonise customs procedures of the Parties;
(b) ensure predictability, consistency and transparency in the application of customs laws and administrative procedures of the Parties;
(c) ensure the efficient and expeditious clearance of goods and means of transport;
(d) facilitate trade between the Parties; and
(e) promote cooperation between the customs administrations, within the scope of this Chapter.
Article 46 Competent Authorities
The competent authorities for the administration of this Chapter are:
(a) in relation to China, the General Administration of Customs of the People's Republic of China; and
(b) in relation to New Zealand, the New Zealand Customs Service.
Article 47 Facilitation
1. Each Party shall ensure that its customs procedures and practices are predictable, consistent, transparent and facilitate trade.
2. Customs procedures of each Party shall, where possible and to the extent permitted by their respective customs law, conform with the trade-related instruments of the WCO to which that Party is a contracting party, including those of the International Convention on the Simplification and Harmonization of Customs Procedures (as amended), known as the Revised Kyoto Convention.
3. Customs administrations of the Parties shall facilitate the clearance of goods in administering their procedures.
4. Each customs administration shall endeavour to provide a focal point, electronic or otherwise, through which its traders may submit all required regulatory information in order to obtain clearance of goods.
Article 48 Customs Valuation
The Parties shall apply Article VII of GATT 1994 and the Customs Valuation Agreement to goods traded between them.
Article 49 Tariff Classification
The Parties shall apply the International Convention on the Harmonized Commodity Description and Coding System to goods traded between them.
Article 50 Customs Cooperation
To the extent permitted by their domestic laws, the customs administrations of the Parties shall assist each other, in relation to:
(a) the implementation and operation of this Chapter; and
(b) such other issues as the Parties mutually determine.
Article 51 Appeal
1. The legislation of each Party shall provide for the right of appeal without penalty in regard to customs administrative rulings, determinations or decisions by the importer, exporter or any other person affected by that administrative ruling, determination or decision.
2. An initial right of appeal by a person described in paragraph 1 may be to an authority within the customs administration or to an independent body, but the legislation of each Party shall provide for the right of appeal without penalty to a judicial authority.
3. Notice of the decision on appeal shall be given to the appellant and the reasons for such decision shall be provided in writing.
Article 52 Advance Rulings
1. Each customs administration shall provide in writing rulings in respect of the tariff classification and origin of goods to a person described in paragraph 2(a).
2. Each customs administration shall adopt or maintain procedures, which shall:
(a) provide that an exporter, importer or any person with a justifiable cause may apply, in the national language of the issuing customs administration, for a ruling at least 3 months before the date of importation of the goods that are the subject of the application. An applicant for an advance ruling on tariff classification from China Customs shall be registered with China Customs;
(b) require that an applicant for a ruling provide a detailed description of the goods and all relevant information needed to issue a ruling;
(c) provide that its customs administration may, at any time during the course of issuing a ruling, request that the applicant provide additional information within a specified period;
(d) provide that any ruling be based on the facts and circumstances presented by the applicant, and any other relevant information in the possession of the decision-maker; and
(e) provide that the ruling be issued, in the national language of the issuing customs administration, to the applicant expeditiously on receipt of all necessary information, or in any case within:
(i) 60 days with respect to tariff classification; and
(ii) 90 days with respect to origin.
3. A Party may reject requests for a ruling where the additional information requested by it in accordance with subparagraph 2(c) is not provided within a specified time.
4. Subject to paragraph 5, each Party shall apply a ruling to all importations of goods described in that ruling into its territory through any port of entry within 3 years of the date of that ruling or such other period as required by that Party's domestic legislation.
5. A Party may modify or revoke a ruling:
(a) upon a determination that the ruling was based on an error of fact or law, or the information provided is false or inaccurate;
(b) if there is a change in domestic law consistent with this Agreement; or
(c) if there is a change in a material fact or circumstances on which the ruling is based.
6. Subject to the confidentiality requirements of a Party’s domestic law, each Party shall publish its rulings.
7. Where an importer claims that the treatment accorded to an imported good should be governed by a ruling, the customs administration may evaluate whether the facts and circumstances of the importation are consistent with the facts and circumstances upon which a ruling was based.
Article 53 Use of Automated Systems in the Paperless Trading Environment
The customs administrations shall apply information technology to support customs operations, where it is cost-effective and efficient, particularly in the paperless trading context, taking into account developments in this area within the WCO.
Article 54 Risk Management
Each customs administration shall focus resource on high-risk goods and facilitate the clearance of low-risk goods in administering customs procedures.
Article 55 Publication and Enquiry Points
1. Each customs administration shall publish all customs laws and any administrative procedures it applies or enforces.
2. Each customs administration shall designate one or more enquiry points to deal with inquiries from interested persons from either Party on customs matters arising from the implementation of this Agreement, and provide details of such enquiry points to the other customs administration.
3. Each customs administration shall provide the other customs administration with timely notice of any significant modification of customs laws or procedures governing the movement of goods and means of transport that is likely to substantially affect the operation of this Chapter.
Article 56 Express Consignments
Each customs administration shall adopt procedures to expedite the clearance of express consignments.
Article 57 Release of Goods
Each Party shall adopt or maintain procedures which allow goods to be released within 48 hours of arrival unless:
(a) the importer fails to provide any information required by the importing Party at the time of first entry;
(b) the goods are selected for closer examination by the competent authority of the importing Party through the application of risk management techniques;
(c) the goods are to be examined by any agency, other than the competent authority of the importing Party, acting under powers conferred by the domestic legislation of the importing Party; or
(d) fulfilment of all necessary customs formalities has not been able to be completed or release is otherwise delayed by virtue of force majeure.
Article 58 Review of Customs Procedures
1. Each customs administration shall periodically review its procedures with a view to their further simplification and the development of mutually beneficial arrangements to facilitate the flow of trade between the Parties.
2. In applying a risk management approach to customs control, each customs administration shall regularly review the performance, effectiveness and efficiency of its systems.
Article 59 Consultation
1. Either customs administration may at any time request consultations with the other customs administration on any matter arising from the operation or implementation of this Chapter. Such consultations shall be conducted through the relevant contact points, and shall take place within 30 days of the request, unless the customs administrations of the Parties mutually determine otherwise.
2. In the event that such consultations fail to resolve any such matter, the requesting Party may refer the matter to the Committee on Trade in Goods for consideration.
3. Each customs administration shall designate one or more contact points for the purposes of this Chapter and provide details of such contact points to the other Party. Customs administrations of the Parties shall notify each other promptly of any amendments to the details of their contact points.
4. Customs administrations may consult each other on any trade facilitation issues arising from procedures to secure trade and the movement of means of transport between the Parties.
CHAPTER 6 TRADE REMEDIES
Section 1: General Trade Remedies
Article 60 Definitions
For the purposes of this Chapter:
Safeguards Agreement means the Agreement on Safeguards, which is part of the WTO Agreement.
Article 61 General Provisions
1. The Parties maintain their rights and obligations under the WTO Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, the WTO Agreement on Subsidies and Countervailing Measures, Article XIX of GATT 1994 and the Safeguards Agreement.
2. The Parties agree to carry out any action taken pursuant to this Chapter in a transparent manner.
Article 62 Anti-Dumping
1. The Parties agree not to take any action pursuant to the WTO Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 in an arbitrary or protectionist manner.
2. Notwithstanding Article 61.1, as soon as possible following the acceptance of a properly documented application from an industry in one Party for the initiation of an anti-dumping investigation in respect of goods from the other Party, the Party that has accepted the properly documented application shall notify the relevant contact point in the other Party.
Article 63 Subsidies and Countervailing Measures
Neither Party shall introduce or maintain any form of export subsidy on any goods destined for the territory of the other Party.
Article 64 Global Safeguard Measures
1. A Party taking any measure pursuant to Article XIX of GATT 1994 and the Safeguards Agreement may exclude imports of an originating good from the other Party from the action if such imports are non-injurious.
2. A Party shall advise the relevant contact point of the other Party of any safeguard action on initiation of an investigation and the reasons for it.
Article 65 Cooperation and Consultation
1. The Parties recognise that there is a benefit in officials from both Parties cooperating and working to ensure each Party has a clear understanding of the processes and practices adopted by the other Party in the administration of actions taken pursuant to this Chapter.
2. Each Party shall designate one or more contact points for the purposes of this Chapter and provide details of such contact points to the other Party. The Parties shall notify each other promptly of any amendments to the details of their contact points.
3. A Party may at any time request consultations with the other Party on any matter arising from the operation or implementation of this Chapter. Such consultations shall be conducted through the relevant contact points, and shall take place within 30 days of the request, unless the Parties mutually determine otherwise.
Section 2: Bilateral Safeguard Measures
Article 66 Definitions
For the purposes of this Section:
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;
provisional safeguard measure means a provisional safeguard measure described in Article 70;
safeguard measure means a safeguard measure described in Article 67.2;
serious injury means a significant overall impairment in the position of a domestic industry;
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;
transition period means the 3 year period beginning on the date of entry into force of this Agreement; except that in the case of a product where the liberalization process lasts 5 or more years, the transition period shall be the period in which such a product reaches zero tariff according to the Schedule as set out in Annex 1 plus 2 years.
Article 67 Application of a Bilateral Safeguard Measure
1. If, as a result of the reduction or elimination of a customs duty provided for in this Agreement, a product benefiting from preferential tariff treatment under this Agreement is being imported into the territory of a Party in such increased quantities, in absolute terms or relative to the domestic production and under such conditions as to cause serious injury or threat thereof to a domestic industry producing a like or directly competitive product, the importing Party may apply a safeguard measure described in paragraph 2, during the transition period.
2. If the conditions in paragraph 1 are met, a Party may, only to the extent as may be necessary to prevent or remedy serious injury, or threat thereof, and to facilitate adjustment:
(a) suspend the further reduction of any rate of customs duty on the product provided for under this Agreement; or
(b) increase the rate of customs duty on the product to a level not exceeding the lesser of:
(i) the MFN applied rate of duty in effect on the product on the day immediately preceding the date of entry into force of this Agreement; or
(ii) the MFN applied rate of customs duty in effect on the product on the date on which the safeguard measure is applied.
Article 68 Standards for a Bilateral Safeguard Measure
1. A Party may apply a safeguard measure for an initial period of no longer than 2 years. The period of a safeguard measure may be extended for a period not exceeding 1 year provided that the competent authorities of the importing Party have determined, in accordance with the procedures set out in Article 69, that the continued application of the measure is necessary to prevent or remedy serious injury and that the industry is adjusting. Regardless of its duration, a safeguard measure shall terminate at the end of the transition period. No new safeguard measure may be applied to a product after that date.
2. A Party shall not apply a safeguard measure or provisional safeguard measure again on a product which has been subject to such a measure for a period of time equal to that during which such a measure had been previously applied, provided that the period of non-application is at least 2 years.
3. Neither Party may apply a safeguard measure on a product that is subject to a measure that the Party has applied pursuant to Article XIX of GATT 1994 and the Safeguards Agreement, and neither Party may continue maintaining a safeguard measure on a product that becomes subject to a measure that the Party applies pursuant to Article XIX of GATT 1994 and the Safeguards Agreement.
4. On the termination of a safeguard measure, the rate of duty shall be the customs duty set out in the Party’s Schedule to Annex 1 as if the safeguard measure had never been applied.
Article 69 Investigation Procedures and Transparency Requirements
1. The importing Party may apply a safeguard measure under this Section only following an investigation by its competent authorities in accordance with Article 3 of the Safeguards Agreement; and to this end, Article 3 of the Safeguards Agreement is incorporated into and made a part of this Agreement, mutatis mutandis.
2. In determining whether increased imports of an originating product of the other Party have caused serious injury or are threatening to cause serious injury to a domestic industry, the competent authority of the importing Party shall follow the rules in Article 4.2 of the Safeguards Agreement; and to this end, Article 4.2 of the Safeguards Agreement is incorporated into and made a part of this Agreement, mutatis mutandis.
Article 70 Provisional Safeguard Measures
In critical circumstances where delay would cause damage which it would be difficult to repair, a Party may take a provisional safeguard measure pursuant to a preliminary determination that there is clear evidence that increased imports have caused or are threatening to cause serious injury. The duration of the provisional safeguard measure shall not exceed 200 days, during which period the pertinent requirements of Articles 67, 68 and 69 shall be met. Such a provisional safeguard measure shall take the form of an increase in the rate of customs duty not exceeding the lesser of the rates in Article 67.2(b), which shall be promptly refunded if the subsequent investigation does not determine that increased imports have caused or threatened to cause serious injury to a domestic industry. The duration of any such provisional safeguard measure shall be counted as a part of the initial period and any extension of a safeguard measure.
Article 71 Notification
1. A Party shall promptly notify the other Party, in writing, on:
(a) initiating an investigation;
(b) taking a provisional safeguard measure;
(c) making a finding of serious injury or threat thereof caused by increased imports; and
(d) taking a decision to apply or extend a safeguard measure.
2. In making the notification referred to in paragraph 1(d), the Party applying a safeguard measure shall provide the other Party with all pertinent information, such as a precise description of the product involved, the proposed safeguard measure, the grounds for introducing such a safeguard measure, the proposed date of introduction and its expected duration. In the case of an extension of a safeguard measure, the written results of the determination required by Article 68.1, including evidence that the continued application of the measure is necessary to prevent or remedy serious injury and that the industry is adjusting, shall also be provided.
3. A Party proposing to apply or extend a 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 2, exchanging views on the safeguard measure and reaching an agreement on compensation as set forth in Article 72.1.
4. Where a Party takes a provisional safeguard measure referred to in Article 70, on request of the other Party, consultations shall be initiated immediately after taking such a provisional safeguard measure.
Article 72 Compensation
1. A Party applying a safeguard measure shall, in consultation with the other Party, provide to the other Party mutually agreed trade liberalising compensation in the form of substantially equivalent concessions during the period of application of the safeguard measure.
2. If the Parties are unable to reach agreement on compensation within 45 days after the application of the safeguard measure, the exporting Party shall be free to suspend the application of substantially equivalent concessions to the trade of the Party applying the safeguard measure. The right of suspension referred to in this paragraph shall not be exercised for the first year that a safeguard measure is in effect under the condition that the safeguard measure has been taken as a result of an absolute increase in imports and that such a measure conforms to the provisions of this Chapter.
3. A Party shall notify the other Party in writing at least 30 days before suspending concessions under paragraph 2.
4. The obligation to provide compensation under paragraph 1 and the right to suspend substantially equivalent concessions under paragraph 2 shall terminate on the date of the termination of the safeguard measure.
CHAPTER 7 SANITARY AND PHYTOSANITARY MEASURES
Article 73 Definitions
For the purposes of this Chapter, the definitions in Annex A of the SPS Agreement and the relevant definitions developed by the relevant international organizations and other definitions agreed between the Parties apply to the implementation of this Chapter. In addition:
Implementing Arrangements means subsidiary documents to this Chapter which set out the mutually determined mechanisms for applying, or outcomes derived from applying, the principles and processes outlined in this Chapter;
Joint Management Committee means the Committee established under Article 88;
SPS Agreement means the Agreement on the Application of Sanitary and Phytosanitary Measures, which is part of the WTO Agreement.
Article 74 Objectives
The objectives of this Chapter are to:
(a) uphold and enhance implementation of the SPS Agreement and applicable international standards, guidelines and recommendations developed by relevant international organizations;
(b) provide a mechanism for enhancing the Parties’ implementation of the SPS Agreement, including risk analysis, adaptation to regional conditions, equivalence and technical assistance, and for enhancing the Parties’ cooperation in these and other areas;
(c) facilitate trade between the Parties through seeking to resolve trade access issues, while protecting human, animal or plant life or health in the territory of the Parties; and
(d) provide a means to improve communication and consultation on sanitary and phytosanitary issues.
Article 75 Scope
This Chapter shall apply to all sanitary and phytosanitary measures of a Party that may, directly or indirectly, affect trade between the Parties.
Article 76 International Obligations
Nothing in this Chapter or Implementing Arrangements shall limit the rights or obligations of the Parties pursuant to the SPS Agreement.
Article 77 Implementing Arrangements
1. The Parties may conclude Implementing Arrangements setting out details for the implementation of this Chapter.
2. Each Party responsible for the implementation of an Implementing Arrangement shall take all necessary actions to do so within a reasonable period of time as mutually determined by the Parties.
3. The Implementing Arrangements referred to in paragraph 1 shall include the following:
Chapter 7 A List of Competent Authorities and Sanitary and Phytosanitary Contact Points.
Chapter 7 B(1) Risk Analysis – list of market access requests of each Party, in priority order.
Chapter 7 B(2) Risk Analysis – principles and guidelines for establishing and managing timelines for completion of risk analysis.
Chapter 7 C(1) Adaptation to Regional Conditions – principles, criteria and processes for recognition of pest or disease-free areas or areas of low pest or disease prevalence.
Chapter 7 C(2) Adaptation to Regional Conditions – list of the prevalence of specific pests or diseases by region or area and sanitary or phytosanitary measures to ensure effective risk management.
Chapter 7 D(1) Determination of Equivalence – principles, criteria and processes for determination of equivalence.
Chapter 7 D(2) Determination of Equivalence – agreed equivalence decisions and related measures.
Chapter 7 E Verification – list of conditions under which to carry out audit and verification procedures.
Chapter 7 F Certificates – principles and/or guidelines for certification and model sanitary or phytosanitary certificates and attestations to accompany products.
Chapter 7 G Import Checks – lists the frequency of import checks.
Chapter 7 H Cooperation – record of understandings on technical assistance and cooperation projects.
Article 78 Competent Authorities and Contact Points
1. The competent authorities of the Parties are the authorities competent in the Parties for the implementation of the measures referred to in this Chapter, as identified in Implementing Arrangement: Chapter 7 A.
2. The contact point for each Party is set out in Implementing Arrangement: Chapter 7 A.
3. The Parties shall inform each other of any significant changes in the structure, organization and division of responsibility within its competent authorities or contact point.
Article 79 Risk Analysis
1. The Parties recognise that risk analysis is an important tool for ensuring that sanitary or phytosanitary measures have a sound scientific basis.
2. The Joint Management Committee shall establish for each Party a priority order for consideration of market access requests of the other Party including the undertaking of risk analyses. These priorities shall be recorded in Implementing Arrangement: Chapter 7 B(1).
3. The Parties shall endeavour to expedite market access requests from each other and in particular any risk analysis process associated with such requests. The Parties shall jointly determine principles and guidelines for establishing and managing timelines for completion of risk analyses. Such principles and guidelines shall be included in Implementing Arrangement: Chapter 7 B(2) and applied accordingly.
4. To facilitate the consideration of market access requests and risk analyses:
(a) The Parties shall establish direct contact between their risk analysis units and/or experts so as to strengthen communication and understanding of each other’s working procedures, applied methods and criteria. The Parties will take account of relevant risk analyses already undertaken so as to facilitate the risk analysis process.
(b) At the initial stage of the risk analysis process, the Party considering a market access request shall inform, to the maximum extent possible, the applicant Party of the technical information required. Where additional information is needed, the applicant Party shall be informed in clear terms as early as possible. To the extent possible, the risk analysis process shall be continued while additional information is being prepared and submitted by the applicant Party.
(c) To speed up the risk analysis process, good working relationships established between the Parties and their trust in each other’s sanitary and phytosanitary system shall be taken into account.
Article 80 Adaptation to Regional Conditions
1. In order to facilitate trade between the Parties, where a Party objectively demonstrates an area or part of its territory to be free of a pest or disease or an area to be of low pest prevalence, following an assessment by the other Party, the Parties may agree to recognise this status.
2. The Parties shall jointly develop principles, criteria and processes regarding adaptation to regional conditions and record these in Implementing Arrangement: Chapter 7 C(1). Recognition of the status shall be in accordance with the principles, criteria and processes recorded in this Implementing Arrangement.
3. The Parties, through the Joint Management Committee, shall decide on the status as described in paragraph 1 and the measures to be taken to maintain this status and may also decide in advance the risk management measures that will apply to trade between the Parties in the event of a change in the status. These decisions on status and measures shall be recorded in Implementing Arrangement: Chapter 7 C(2).
4. Decisions recorded in Implementing Arrangement: Chapter 7 C(2) shall be applied to trade between the Parties.
Article 81 Equivalence
1. The Parties recognise that the application of equivalence is an important tool for trade facilitation. A determination of equivalence may be made in relation to partial or full equivalence of sanitary and phytosanitary measures and systems.
2. The determination of equivalence requires an objective, risk-based assessment or evaluation by the importing Party of the existing, revised or proposed measures. The legislative and administrative systems, other factors such as the performance of the relevant competent authorities and any other necessary assessments or tests may be considered.
3. The importing Party shall accept the sanitary and phytosanitary measures of the exporting Party as equivalent if the exporting Party objectively demonstrates that its measures achieve the importing Party's appropriate level of sanitary and phytosanitary protection. To facilitate a determination of equivalence, a Party shall on request advise the other Party of the objective of any relevant sanitary or phytosanitary measures.
4. The Parties shall jointly develop principles, criteria and processes regarding determination of equivalence and record these in Implementing Arrangement: Chapter 7 D(1). In reaching a decision on equivalence, the Parties shall apply these principles, criteria and processes.
5. The Parties shall take into account guidance provided by relevant international standard-setting organizations and by the WTO Committee on Sanitary and Phytosanitary Measures, where relevant to the particular case as well as experience already acquired.
6. Implementing Arrangement: Chapter 7 D(2) records equivalence decisions, including any additional conditions to be applied in the case of partial equivalence. This Implementing Arrangement may also record any action required of either Party to facilitate progress towards full equivalence.
7. Equivalence decisions recorded in Implementing Arrangement: Chapter 7 D(2) shall be applied to trade between the Parties.
8. The consideration by a Party of a request from the other Party for recognition of the equivalence of its measures with regard to a specific product shall not be in itself a reason to disrupt or suspend ongoing imports from that Party of the product in question.
Article 82 Verification
1. In order to maintain confidence in the effective implementation of this Chapter, each Party shall have the right to carry out audit and verification procedures of the exporting Party, which may include an assessment of all or part of the competent authorities' total control programme, including, where appropriate:
(a) reviews of the inspection and audit programmes; and
(b) on-site checks.
These procedures shall be carried out in accordance with Implementing Arrangement: Chapter 7 E.
2. Each Party shall also have the right to carry out import checks for the purposes of implementing sanitary and phytosanitary measures on consignments on importation consistent with Article 84, the results of which form part of the verification process.
3. A Party may:
(a) share the results and conclusions of its audit and verification procedures and checks with countries that are not party to this Agreement;
(b) use the results and conclusions of the audit and verification procedures and checks of countries that are not party to this Agreement.
Article 83 Certification
Each consignment of animals, animal products, plants, plant products or other related goods will be accompanied, where required, by the relevant official sanitary or phytosanitary certificate using the model in Implementing Arrangement: Chapter 7 F and conforming with other relevant provisions of the Implementing Arrangements. The Parties may jointly determine principles or guidelines for certification. Any such principles shall be included in Implementing Arrangement: Chapter 7 F.
Article 84 Import Checks
1. The import checks applied to imported animals, animal products, plants and plant products or other related goods traded between the Parties shall be based on the risk associated with such importations. They shall be carried out in a manner that is least trade-restrictive and without undue delay.
2. The frequencies of import checks on such importations shall be made available on request. The importing Party shall notify the other Party in a timely manner of any amendment to the frequency of import checks in the event of change in the import risk. On request, an explanation regarding amendments shall be given or consultations shall be undertaken.
3. The Parties may record frequencies of import checks in Implementing Arrangement: Chapter 7 G and in that case they shall be applied accordingly. The Joint Management Committee may amend the frequencies of those import checks as a result of experience gained through import checks or otherwise, or as a result of actions or consultations provided for in this Chapter.
4. In the event that the import checks reveal non-conformity with the relevant standards and/or requirements, the action taken by the importing Party should be proportionate to the risk involved.
5. At the request of the exporting Party, the importing Party shall to the maximum extent ensure that officials of the exporting Party or their representatives are given the opportunity to contribute any relevant information to assist the importing Party in taking a final decision. If necessary, a joint testing of the preserved samples will be carried out by the Parties.
Article 85 Cooperation
1. Consistent with the objectives of this Chapter, the Parties shall explore opportunities for further cooperation in sanitary and phytosanitary matters of mutual interest.
2. In areas of mutual interest, the Parties through the Joint Management Committee agree to:
(a) share knowledge and experience including possible exchanges of officials;
(b) coordinate positions in the activities of regional and international organizations, and jointly develop, formulate and implement relevant standards and programmes;
(c) carry out joint research and share the results of such research in important areas, such as:
(i) animal and plant disease surveillance;
(ii) animal and plant pest and disease prevention and control;
(iii) detection methods for pathogenic micro-organisms in food;
(iv) surveillance and control of harmful substances and agrichemical and veterinary medicine residues and other food safety issues;
(v) any other food safety, phytosanitary and zoosanitary issues of mutual interest;
(d) carry out other forms of cooperation including those in relation to activities of the enquiry points established under Annex B of the SPS Agreement.
3. The Parties recognise that it is of significant importance to carry out technical assistance and capacity building so as to further strengthen bilateral sanitary and phytosanitary cooperation, and promote bilateral trade in agricultural products and food.
4. Understandings on technical assistance and cooperation projects reached by the Joint Management Committee will be recorded in Implementing Arrangement: Chapter 7 H and applied accordingly.
Article 86 Notification
1. The Parties shall inform each other through the contact points in a timely and appropriate manner when:
(a) there is a significant change in health status, including the distribution and host preference of diseases or pests in Implementing Arrangement: Chapter 7 C(2), to ensure continued confidence in the competence of the Party with respect to the management of any risks of transmission of disease or pest to the other Party which may arise as a consequence;
(b) there are scientific findings of importance with respect to diseases or pests which are not in Implementing Arrangement: Chapter 7 C(2), or new diseases or pests;
(c) any additional measures beyond the basic requirements of their respective sanitary or phytosanitary measures are taken to control or eradicate diseases or pests or to protect human health, and any changes in preventative policies, including vaccination policies.
2. In cases of serious and immediate concern with respect to human, animal or plant life or health, oral notification shall be made with urgency to the contact points and written confirmation should follow within 24 hours.
3. Where a Party has serious concerns regarding a risk to human, animal or plant life or health, consultations regarding the situation shall, on request, take place as soon as possible, and in any case within 14 days unless otherwise agreed between the Parties. Each Party shall endeavour in such situations to provide all the information necessary to avoid a disruption in trade, and to reach a mutually acceptable solution.
4. Where there is a non-compliance of imported consignments for products subject to sanitary or phytosanitary measures, the importing Party shall notify as soon as possible the exporting Party of the non-compliance.
5. Without prejudice to the preceding paragraphs of this Article and in particular paragraph 3, a Party may, on serious human, animal or plant life or health grounds, take provisional measures necessary for the protection of human, animal or plant life or health. These measures shall be notified in writing within 24 hours to the other Party and, on request, consultations regarding the situation shall be held within 8 days unless otherwise agreed by the Parties. The Parties shall take due account of any information provided through such consultations.
Article 87 Exchange of Information
1. The Parties, through the contact points, shall exchange information relevant to the implementation of this Chapter on a uniform and systematic basis, to provide assurance, engender mutual confidence and demonstrate the efficacy of the programmes controlled. Where appropriate, achievement of these objectives may be enhanced by exchanges of officials.
2. The information exchange on changes in the respective sanitary and phytosanitary measures, and other relevant information, shall include:
(a) opportunity to consider proposals for changes in regulatory standards or requirements which may affect this Chapter in advance of their finalisation. Where either Party considers it necessary, proposals may be dealt with in accordance with Article 88;
(b) briefing on current developments affecting trade;
(c) information on the results of the verification procedures provided for in Article 82;
(d) relevant sanitary and phytosanitary publications of the competent authorities.
3. Each Party shall facilitate the consideration in its relevant scientific forums of scientific papers or data submitted by the other Party to substantiate that Party's views or claims. Such submissions shall be evaluated by relevant scientific forums in a timely manner, and the results of that examination shall be made available to the Parties.
Article 88 Joint Management Committee
1. The Parties shall establish a Joint Management Committee which shall include representatives from the competent authorities of the Parties. The Committee shall be co-chaired by competent authorities’ representatives of each Party. At the first meeting of the Committee, it will establish its rules of procedure.
2. The objective of the Committee is to facilitate bilateral trade in goods affected by sanitary or phytosanitary measures and to achieve this by giving practical effect to this Chapter, including through the establishment and monitoring of the application of Implementing Arrangements.
3. The Committee shall consider any matters relating to the implementation of this Chapter including:
(a) establishing, monitoring and reviewing work plans;
(b) establishing technical working groups as appropriate;
(c) initiating, developing, reviewing and modifying Implementing Arrangements which further elaborate the provisions of this Chapter;
(d) exchanging sanitary and phytosanitary information on bilateral trade;
(e) coordinating positions on important sanitary and phytosanitary issues in the WTO Committee on Sanitary and Phytosanitary Measures and in relevant international standards setting bodies;
(f) consulting with a view to resolving sanitary and phytosanitary issues arising in bilateral trade.
4. This Committee shall meet within one year of the entry into force of this Agreement and at least annually thereafter or as mutually determined by the Parties. It may meet in person, teleconference, video conference, or through any other means, as mutually determined by the Parties. The Committee may also address issues through correspondence.
5. The Committee may agree to establish technical working groups consisting of expert-level representatives of the Parties, which shall identify and address technical and scientific issues arising from this Chapter. When additional expertise is needed, the membership of these groups need not be restricted to representatives of the Parties.
6. Notwithstanding paragraph 5, the competent authorities may consult on and resolve issues. Where they consider it appropriate, they may discuss the establishment of a working group and the scope of its work for a possible recommendation to the Committee.
CHAPTER 8 TECHNICAL BARRIERS TO TRADE
Article 89 Definitions
For the purposes of this Chapter, the definitions set out in Annex 1 of the TBT Agreement shall apply. In addition:
competent authorities means the authorities described in Implementing Arrangement: Chapter 8 A that have responsibility for implementing this Chapter;
consigned directly in relation to goods means:
(a) goods that are transported without passing through the territory of a non-Party; or
(b) goods whose transport involves transit through one or more non- Parties with or without trans-shipment or temporary storage of up to 6 months in such non-Parties, provided that:
(i) the goods do not enter into trade or commerce there; and
(ii) the goods do not undergo any operation there other than unloading and reloading, repacking, or any operation required to keep them in good condition;
technical regulations also include standards that regulatory authorities recognise as meeting the mandatory requirements related to performance based regulations;
TBT Agreement means the Agreement on Technical Barriers to Trade, which is part of the WTO Agreement.
Article 90 Objectives
1. The objectives of this Chapter are to:
(a) increase and facilitate trade through furthering the implementation of the TBT Agreement;
(b) reduce, wherever possible, unnecessary costs associated with trade between the Parties; and
(c) promote regulatory cooperation to manage risks to health, safety and the environment.
2. These objectives will be achieved by:
(a) a framework and supporting mechanisms to address the impact of technical barriers to trade in goods;
(b) enhancing cooperation between the regulatory authorities of the Parties and standards and conformance bodies responsible for standards, technical regulations and conformity assessment procedures applicable to goods; and
(c) eliminating unnecessary technical barriers to trade in goods between the Parties.
Article 91 Affirmation of TBT Agreement
The Parties affirm their existing rights and obligations with respect to each other under the TBT Agreement including the rights and obligations related to special and differential treatment and technical assistance to developing country Members.
Article 92 Scope
1. This Chapter applies to all standards, technical regulations and conformity assessment procedures that may, directly or indirectly, affect the trade in goods between the Parties, except as provided in paragraphs 2 and 3.
2. This Chapter does not apply to purchasing specifications prepared by governmental entities for production or consumption requirements of such entities of products purchased for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods for commercial sale.
3. This Chapter does not apply to sanitary and phytosanitary measures which are covered by Chapter 7 (Sanitary and Phytosanitary Measures).
4. Nothing in this Chapter shall prevent a Party from adopting or maintaining, in accordance with its rights and obligations under the TBT Agreement, technical regulations, standards and conformity assessment procedures.
Article 93 Application
This Chapter applies to all goods that are manufactured or assembled in the territory of one or both Parties and are consigned directly between the Parties.
Article 94 International Standards
1. The Parties shall use international standards, or the relevant parts of international standards, as a basis for their technical regulations and related conformity assessment procedures where relevant international standards exist or their completion is imminent, except when such international standards or their relevant parts are ineffective or inappropriate to fulfil legitimate regulatory objectives.
2. The Parties shall cooperate with each other, where appropriate, in the context of their participation in international standardising bodies, to ensure that international standards developed within such organizations, that are likely to become a basis for technical regulations, are trade facilitating and do not create unnecessary obstacles to international trade.
3. The Parties shall strengthen communications and coordination with each other, where appropriate, in the context of discussions on international standards and related issues in other international forums, such as the WTO Committee on Technical Barriers to Trade (“WTO TBT Committee”).
Article 95 Equivalence of Technical Regulations
1. Consistent with the TBT Agreement, each Party shall give positive consideration to accepting as equivalent, technical regulations of the other Party, even if these regulations differ from its own, provided that those technical regulations produce outcomes that are equivalent to those produced by its own technical regulations in meeting its legitimate objectives and achieving the same level of protection.
2. A Party shall, upon the request of the other Party, explain the reasons why it has not accepted a technical regulation of the other Party as equivalent.
3. The Parties shall strengthen communications and coordination with each other, where appropriate, in the context of discussions on the equivalence of technical regulations and related issues in international forums, such as the WTO TBT Committee.
Article 96 Regulatory Cooperation
1. Recognising the important relationship between good regulatory practices and trade facilitation, the Parties agree to seek to cooperate in the areas of standards, technical regulations, and conformity assessment to:
(a) promote good regulatory practice based on risk management principles;
(b) improve the quality and effectiveness of their technical regulations;
(c) develop joint initiatives, where the Parties consider it appropriate, for managing risks relating to health, safety, the environment and deceptive practices;
(d) build understanding and capacity to promote better regulatory compliance.
2. The Parties shall seek to implement paragraph 1 by establishing work programmes under Article 100, including to:
(a) exchange information on:
(i) regulatory systems;
(ii) incident analysis;
(iii) hazard alerts;
(iv) product bans and recalls;
(v) domestic practices and programmes for product surveillance activities;
(vi) appropriate market information material on request; and
(vii) reviews of technical regulations and their implementation.
(b) cooperate on:
(i) good regulatory practice; and
(ii) the development and implementation of risk management principles including product monitoring, safety, compliance and enforcement practices.
3. Where goods are covered by an Annex or Implementing Arrangement to this Chapter and a Party takes a measure to manage an urgent problem that it considers those goods may pose to health, safety or the environment, it shall notify the other Party, through the contact point established under Article 100, of the measure and the reasons for the imposition of the measure, within the time limit specified in the relevant Annex or Implementing Arrangement.
Article 97 Conformity Assessment Procedures
1. The Parties agree to seek to increase efficiency, avoid duplication and ensure cost effectiveness through an appropriate range of mechanisms, including, but not limited to:
(a) facilitating recognition of cooperative arrangements between accreditation agencies from each other’s territory;
(b) implementing unilateral recognition by one Party of the results of conformity assessments performed in the other Party’s territory;
(c) implementing mutual recognition of conformity assessment procedures conducted by bodies located in the respective territories of the Parties;
(d) recognising accreditation procedures for qualifying conformity assessment bodies;
(e) supporting government recognition of conformity assessment bodies; and
(f) accepting suppliers’ declarations of conformity, where appropriate.
2. The Parties shall seek to ensure that conformity assessment procedures applied between them facilitate trade by ensuring that they are no more restrictive than is necessary to provide an importing Party with confidence that products conform with the applicable technical regulations, taking into account the risk that non-conformity would create. Any agreements or arrangements on mutual recognition of conformity assessment concluded between the Parties under this Agreement shall be included in Annexes and Implementing Arrangements to this Chapter pursuant to Article 102.
3. The Parties may consult on such matters as the technical competence of the conformity assessment bodies involved, as appropriate to enhance confidence in the continued reliability of each other’s conformity assessment results, before accepting results of a conformity assessment procedure.
4. A Party shall, on the request of the other Party, explain its reasons for not accepting the results of a conformity assessment procedure performed in the territory of that other Party.
5. Each Party shall accredit or otherwise recognise conformity assessment bodies in the territory of the other Party on terms no less favourable than those it accords to conformity assessment bodies in its territory.
6. If a Party accredits, or otherwise recognises a body assessing conformity with a particular technical regulation or standard and it refuses to accredit or otherwise recognise a body of the other Party assessing conformity with that technical regulation or standard, it shall, on request, explain the reasons for its refusal.
7. The Parties shall seek to cooperate in coordinating their procedures for issuing approvals of products, or otherwise recognising compliance with their mandatory requirements, with the objectives of reducing compliance and administrative costs, and for the effective monitoring of compliance with their legitimate regulatory objectives.
8. Where a Party declines a request from the other Party to enter into negotiations on facilitating recognition of the results of conformity assessment procedures conducted by bodies of the other Party, it shall, on request, explain its reasons.
9. The Parties shall ensure that any fees imposed for assessing the conformity of products originating in the territory of the other Party are equitable in relation to any fees chargeable for assessing the conformity of like products of national origin or originating in any other country, taking into account communication, transportation and the costs arising from differences between location of facilities of the applicant and the conformity assessment body.
10. The Parties, on request, shall notify each other of:
(a) any fees imposed for mandatory conformity assessments; and
(b) the anticipated processing period for any mandatory conformity assessments.
Article 98 Transparency
1. In order to enhance the opportunity for the Parties and interested persons to provide meaningful comments, a Party publishing a notice under Article 2.9 or 5.6 of the TBT Agreement shall:
(a) include in the notice a statement describing the objective of the proposal and the rationale for the approach that the Party is proposing;
(b) at the same time as it notifies WTO Members of the proposal pursuant to the TBT Agreement, transmit the notification electronically to the other Party through its enquiry point established under Article 10 of the TBT Agreement; and
(c) on request, make the text of any technical regulations and conformity assessment procedures based on a proposal available electronically to the other Party as soon as practicable after it becomes publicly available.
2. Each Party should allow at least 60 days from the transmission of the notification under paragraph 1(b) above for the other Party and interested persons to make comments on the proposal in writing.
3. A Party making a notification shall give timely and reasonable consideration to the comments of the other Party.
4. A Party shall explain its reasons for not accepting the comments of the other Party and transmit to the other Party through the enquiry point an electronic copy of the final proposal.
5. Where a Party makes a notification under Article 2.10 or 5.7 of the TBT Agreement, it shall at the same time transmit the notification to the other Party electronically, through its enquiry point referred to under paragraph 1(b).
6. Where a Party makes a notification under Article J of Annex 3 of the TBT Agreement, it shall transmit the notification electronically to the other Party through its enquiry point referred to in paragraph 1(b).
7. Each Party shall notify the other Party in a timely manner of up-to-date lists of accredited and/or designated certification bodies and testing laboratories and the respective conformity assessments that they are accredited and/or designated to undertake.
8. The Parties shall, through the contact points, exchange lists, which are updated in a timely manner, of:
(a) the mandatory requirements for conformity assessment procedures under their respective technical regulations that are within the scope specified in Implementing Arrangement: Chapter 8 B; and
(b) the test facilities and certification bodies that are accredited and/or designated to undertake those conformity assessment procedures.
9. The Parties shall seek to develop Implementing Arrangements that set out the criteria and processes for exchanging, on request and in relation to products or mandatory requirements not covered by paragraph 8, information on any conformity assessment procedures that are required under applicable technical regulations and the list of test facilities and certification bodies that are accredited and/or designated to undertake those conformity assessment procedures.
10. Each Party shall make available to the other Party, electronically or in any other form, up-to-date publications on technical regulations and any relevant standards or conformity assessment procedures that are cited in, or may be used to comply with, those technical regulations.
Article 99 Technical Assistance
1. Each Party recognises the rights and obligations relating to technical assistance in the TBT Agreement, especially for developing country Members. The Parties, through the Joint TBT Committee established under Article 100, shall jointly decide technical assistance projects in the field of technical barriers to trade for the purposes of implementing this Chapter. Such technical assistance projects may include, but are not limited to:
(a) providing training programmes for government officials;
(b) providing training programmes for technical personnel, including but not limited to inspection and test technical personnel, and standardisation personnel;
(c) providing technical assistance in the development and improvement of technical regulations and conformity assessment procedures;
(d) assisting to design and implement programmes to substantially improve a Party's ability to participate in international standardisation activities and the activities of international conformity assessment organizations; and
(e) any other forms of technical assistance jointly decided by the Parties.
2. The details of any technical assistance projects may be set out in Implementing Arrangement: Chapter 8 C.
Article 100 Implementation
1. The Parties hereby establish a Joint Technical Barriers to Trade Committee (“the Joint TBT Committee”) which shall be co-chaired by senior officials of the competent authorities.
2. The Joint TBT Committee shall:
(a) take any action it decides appropriate for the implementation of this Chapter;
(b) establish working groups to consider issues relating to:
(i) WTO enquiry and notification points;
(ii) standardisation; and
(iii) accreditation and conformity assessment;
(c) identify priority sectors for enhanced cooperation, including giving favourable consideration to any sector-specific proposal made by either Party;
(d) establish ad hoc working groups to develop and implement work programmes with clear targets, design structures and timelines in priority sectors;
(e) monitor the progress of work programmes and the implementation of Annexes and Implementing Arrangements;
(f) consult with a view to resolving any matter arising under this Chapter, in accordance with Article 101;
(g) review this Chapter in light of any developments under the TBT Agreement, and develop recommendations for amendments to this Chapter in light of those developments;
(h) take any other steps the Parties consider will assist them in implementing the TBT Agreement and in facilitating trade in goods between them; and
(i) report to the FTA Joint Commission on the implementation of this Chapter, as it considers appropriate.
3. After obtaining any necessary authorisation from their respective competent authorities, the Joint TBT Committee may:
(a) initiate and develop proposals for the conclusion of new Annexes to this Chapter in accordance with Article 102.1 and review existing Annexes with a view to developing proposals for their amendment, and submit any such proposals to the FTA Joint Commission for approval; and
(b) initiate, develop, conclude, review and modify Implementing Arrangements in accordance with Article 102.2.
4. The Joint TBT Committee shall conduct meetings to promote and monitor the implementation and administration of this Chapter at least once a year, or more frequently on the request of one of the Parties, via teleconference, video-conference or any other means mutually determined by the Parties.
5. The Parties shall ensure that the persons and organizations in their respective territories that have responsibility for relevant standards, technical regulations and conformity assessment procedures including accreditation, shall participate in working groups or other consultations decided by the Joint TBT Committee as appropriate where the Joint TBT Committee has:
(a) identified a priority sector for enhanced cooperation under paragraph 2(c);
(b) established a work programme under paragraph 2(d); or
(c) been requested to undertake technical consultations under Article 101.
6. Each Party shall establish a contact point which shall have responsibility to coordinate the implementation of this Chapter.
7. The Parties shall provide each other with the name of the governmental organization that shall be their contact points and the contact details of relevant officials in that organization, including telephone, fax, email and other relevant details.
8. The Parties shall notify each other promptly of any change of their contact points or any amendments to the details of the relevant officials.
9. For the purposes of implementing this Chapter, the contact point of each Party shall:
(a) coordinate participation in work programmes established under paragraph 2 with persons and organizations in their respective territories that have responsibility for accreditation or relevant regulations;
(b) ensure appropriate steps are taken to consider any issue that a Party may raise related to the development, adoption, application or enforcement of technical regulations and conformity assessment
procedures;
(c) facilitate, where appropriate, sectoral cooperation between governmental and non-governmental regulatory authorities, accreditation agencies and conformity assessment bodies in the Parties’ territories; and
(d) exchange information on developments in non-governmental, regional and multilateral fora engaged in activities related to standardisation, technical regulations and conformity assessment procedures.
Article 101 Technical Consultations
1. Either Party may request technical consultations in accordance with Article 100.2(f) and unless the Parties mutually determine otherwise, the Parties shall hold technical consultations within 60 days from the request for technical consultations by email, teleconference, video-conference, or through any other means, as mutually determined by the Parties.
2. Where either Party has requested technical consultations on the application of any technical regulation or the recognition of any standard or conformity assessment procedure, the other Party shall investigate the issues that gave rise to the request for consultations, shall address any irregularities in the implementation of its technical regulations or conformity assessment procedures, and shall report back to the other Party on the outcome of its investigations, stating its reasons.
3. Technical consultations held pursuant to this Article are without prejudice to the rights and obligations of the Parties under Chapter 16 (Dispute Settlement).
Article 102 Annexes and Implementing Arrangements
1. The Parties may conclude Annexes to this Chapter setting out agreed principles and procedures relating to technical regulations and conformity assessments applicable to goods traded between them.
2. The Parties may, through the Joint TBT Committee, conclude Implementing Arrangements setting out:
(a) details for the implementation of the Annexes to this Chapter;
(b) arrangements on information exchange reached in accordance with Article 98;
(c) arrangements on technical assistance reached in accordance with Article 99; or
(d) arrangements resulting from work programmes established under Article 100.
3. The Parties acknowledge that Annexes and Implementing Arrangements concluded in accordance with this Chapter may take the form of a variety of mechanisms. This may include the use of asymmetrical approaches, where appropriate.
4. The Parties agree to maintain a programme of ongoing review and enhancement of Annexes and Implementing Arrangements concluded in accordance with this Chapter.
CHAPTER 9 TRADE IN SERVICES
Article 103 Definitions
For the purposes of this Chapter:
commercial presence means any type of business or professional establishment, including through:
(a) the constitution, acquisition or maintenance of a juridical person, or
(b) the creation or maintenance of a branch or a representative office,
within the territory of a Party for the purpose of supplying a service;
controlled means having the power to name a majority of directors or otherwise legally direct the legal entity’s actions;
juridical person of a Party means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association, which is either:
(a) constituted or otherwise organised under the law of that Party, and is engaged in substantive business operations in the territory of that Party; or
(b) in the case of the supply of a service through commercial presence, owned or controlled by:
(i) natural persons of that Party; or
(ii) juridical persons of that Party identified under subparagraph (a);
measure means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form taken by:
(a) central, regional or local governments and authorities; and
(b) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
measures by Parties affecting trade in services include measures in respect of:
(a) the purchase, payment or use of a service;
(b) the access to and use of, in connection with the supply of a service, services which are required by the Parties to be offered to the public generally;
(c) the presence, including commercial presence, of persons of a Party for the supply of a service in the territory of the other Party;
monopoly supplier of a service means any person, public or private, which in the relevant market of the territory of a Party is authorized or established formally or in effect by that Party as the sole supplier of that service;
natural person of a Party means a national or permanent resident of a Party under its laws. Until such time as China enacts its domestic law on the treatment of permanent residents of foreign countries, the obligations of each Party with respect to the permanent residents of the other Party shall be limited to the extent of its obligations under GATS;
owned means holding more than 50 percent of the equity interest in the legal entity;
person of a Party means either a natural person or a juridical person of a Party;
qualification procedures means administrative procedures relating to the administration of qualification requirements;
qualification requirements means substantive requirements which a service supplier is required to fulfil in order to obtain certification or a licence;
sector of a service means, with reference to a specific commitment one or more or all subsectors of that service, as specified in a Party’s Schedule; otherwise, the whole of that service sector, including all of its subsectors;
service consumer means any person that receives or uses a service;
service supplied in the exercise of governmental authority means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers;
service supplier of a Party means any person of a Party that supplies a service;1
( Note:1 Where the service is not supplied directly by a juridical person but through other forms of commercial presence such as a branch or a representative office, the service supplier (i.e. the juridical person) shall, nonetheless, through such presence be accorded the treatment provided for service suppliers under this Chapter. Such treatment shall be extended to the presence through which the service is supplied and need not be extended to any other parts of the supplier located outside the territory where the service is supplied. )
supply of a service includes the production, distribution, marketing, sale and delivery of a service;
trade in services is defined as the supply of a service:
(a) from the territory of one Party into the territory of the other Party (“cross-border mode”);
(b) in the territory of one Party to the service consumer of the other Party (“consumption abroad mode”);
(c) by a service supplier of one Party, through commercial presence in the territory of the other Party (“commercial presence mode”); or
(d) by a service supplier of one Party, through presence of natural persons of a Party in the territory of the other Party (“presence of natural persons mode”).
Article 104 Objectives
The objective of this Chapter is to facilitate expansion of trade in services on a mutually advantageous basis, under conditions of transparency and progressive liberalisation. Both Parties recognise the role of governments in regulating services, and in providing and funding public services; the need for this to take into consideration national policy objectives and local circumstances; and the asymmetries existing with respect to the degree of development of services regulation between the Parties.
Article 105 Scope
1. This Chapter shall apply to measures adopted or maintained by a Party affecting trade in services.
2. This Chapter shall not apply to:
(a) laws, regulations, policies, or procedures of general application governing the procurement by government agencies of services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the supply of services for commercial sale;
(b) services supplied in the exercise of governmental authority;
(c) subsidies or grants provided by a Party, except as provided for in Article 119;
(d) measures affecting natural persons seeking access to the employment market of a Party.
3. This Chapter shall not apply to measures affecting:
(a) air traffic rights, however granted; or
(b) services directly related to the exercise of air traffic rights, except as provided in paragraph 4.
4. This Chapter shall apply to measures affecting:
(a) aircraft repair and maintenance services;
(b) the selling and marketing of air transport services;
(c) computer reservation system (“CRS”) services.
Article 106 National Treatment
1. In the sectors inscribed in its schedule of commitments, and subject to any conditions and qualifications set out therein, a Party shall accord to services and service suppliers of the other Party, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.2
(Note 2: Specific commitments assumed under this Article shall not be construed to require any Party to compensate for any inherent competitive disadvantages which result from the foreign character of the relevant services or service suppliers. )
2. A Party may meet the requirement in paragraph 1 by according to services and service suppliers of the other Party either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of the Party compared to the like service or service suppliers of the other Party.
Article 107 Most-Favoured-Nation Treatment
1. In respect of the services sectors listed in Annex 9, and subject to any conditions and qualifications set out therein, each Party shall accord to services and service suppliers of the other Party treatment no less favourable than that it accords to like services and service suppliers of a third country.
2. Notwithstanding paragraph 1, the Parties reserve the right to adopt or maintain any measure that accords differential treatment to third countries under any free trade agreement or multilateral international agreement in force or signed prior to the date of entry into force of this Agreement.
3. For greater certainty, paragraph 2 includes, in respect of agreements on the liberalisation of trade in goods or services or investment, any measures taken as part of a wider process of economic integration or trade liberalization between the parties to such agreements.
Article 108 Market Access
1. With respect to market access through the modes of supply identified in the definition of trade in services contained in Article 103, a Party shall accord services and service suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule of Commitments.3(Note 3: If a Party undertakes a market-access commitment in relation to the supply of a service through the mode of supply referred to in subparagraph (a) of the definition of trade in services contained in Article 103, and if the cross-border movement of capital is an essential part of the service itself, that Party is thereby committed to allow such movement of capital. If a Party undertakes a market-access commitment in relation to the supply of a service through the mode of supply referred to in subparagraph (c) of the definition of trade in services contained in Article 103, it is thereby committed to allow related transfers of capital into its territory. )
2. In sectors where market-access commitments are undertaken, the measures which a Party shall not maintain or adopt either on the basis of a regional sub-division or on the basis of its entire territory, unless otherwise specified in its Schedule, are defined as:
(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;4
(Note 4: Subparagraph 2(c) does not cover measures of a Party which limit inputs for the supply of services. )
(d) limitations on the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for |
