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SINGAPORE-AUSTRALIA FREE TRADE AGREEMENT (SAFTA) |
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SINGAPORE-AUSTRALIA FREE TRADE AGREEMENT (SAFTA) CONSOLIDATED TEXT
PREAMBLE ............................................................................................................. 3
ANNEX 1: EXPORT DUTIES ANNEX 2: RULES OF ORIGIN
2A: CERTIFICATION OF ORIGIN REQUIREMENTS
2B: ALLOWABLE LABOUR AND OVERHEAD COSTS
2C: LIST OF GOODS WHICH MUST BE SUBJECT TO THE
LAST PROCESS OF MANUFACTURE WITHIN THE TERRITORY OF A PARTY
2D: LIST OF GOODS SUBJECT TO 30% THRESHOLD
ANNEX 3: GOVERNMENT PROCUREMENT
3A: LIST OF ENTITIES FOR AUSTRALIA
3B: LIST OF ENTITIES FOR SINGAPORE
ANNEX 4: RESERVATIONS TO CHAPTER 7 (TRADE IN SERVICES) AND CHAPTER 8 (INVESTMENT)
4-I: COVER NOTE TO RESERVATIONS
4-I(A): AUSTRALIAíS RESERVATIONS
4-I(B): SINGAPOREíS RESERVATIONS
4-II: COVER NOTE TO RESERVATIONS
1
4-II(A): AUSTRALIAíS RESERVATIONS
4-II(B): SINGAPOREíS RESERVATIONS
4-III: ADDITIONAL COMMITMENTS
2
PREAMBLE
Singapore and Australia (ìthe Partiesî)
Conscious of their longstanding friendship and growing trade and investment relationship;
Desiring to improve the efficiency and competitiveness of their goods and services sectors and expand trade and investment between them;
Recognising that strengthening of their closer economic partnership will bring economic and social benefits and improve the living standards of their people;
Building on their rights, obligations and undertakings under the World Trade Organization, and other multilateral, regional and bilateral agreements and arrangements;
Recognising their commitment to securing trade liberalisation and an outward looking approach to trade and investment;
Mindful of the Asia-Pacific Economic Cooperation goals of free and open trade and investment;
Conscious that a framework of rules for trade in goods and services, and investment will contribute to the promotion of closer links with other economies, especially in the Asia-Pacific region;
Recognising the need for good corporate governance and a predictable, transparent and consistent business environment to enable businesses to conduct transactions freely, use resources efficiently and take investment and planning decisions with certainty; and
Believing that their cooperative framework could be a dynamic one that also covers newer areas of economic cooperation;
Have agreed as follows:
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ARTICLE 1
Objectives
The objectives of the Parties in concluding this Agreement are:
(a) to strengthen the relationship between them;
(b) to liberalise trade in goods and services between them and to establish
a framework conducive for bilateral investments;
(c) to support the wider liberalisation process in the Asia-Pacific Economic Cooperation consistent with its goals of free and open trade and investment;
(d) to build upon their commitments at the World Trade Organization, and
to support its efforts to create a predictable, and more free and open global trading environment;
(e) to improve the efficiency and competitiveness of their goods and services sectors and expand trade and investment between them;
(f) to establish a framework of transparent rules to govern trade and investment between them; and
(g) to explore newer areas of economic cooperation.
ARTICLE 2
General Definitions
For the purposes of this Agreement:
(a) ìAPECî means Asia-Pacific Economic Cooperation;
(b) ìdaysî means calendar days, including weekends and holidays;
(c) ìgoodsî and ìproductsî shall be understood to have the same meaning unless the context otherwise requires;
(d) (i) the term ìterritoryî means, in respect of the Republic of Singapore, the territory of the Republic of Singapore as well as the territorial sea and any maritime area situated beyond the territorial sea which has been or might in the future be designated under its national
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law, in accordance with international law, as an area within which Singapore may exercise rights with regards to the sea, the sea-bed, the subsoil and the natural resources;
(ii) the term ìterritoryî, in respect of Australia, includes:
(A) the Territory of Norfolk Island, the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands, the Territory of Ashmore and Cartier Islands, the Territory of Heard Island and McDonald Islands, and the Coral Sea Islands Territory; and
(B) Australia's territorial sea, contiguous zone, exclusive economic zone and continental shelf; and
(e) ìWTOî means the World Trade Organization.
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ARTICLE 1
Definitions
For the purposes of this Chapter:
(a) ìcustoms dutiesî means any duties or charges of any kind imposed in connection with the importation of a good, and any surtaxes or surcharges
imposed in connection with such importation, but does not include:
(i) charges equivalent to an internal tax including excise duties and
a goods and services tax imposed consistently with a Partyís WTO
obligations;
(ii) fees or other charges that:
(A) are limited in amount to the approximate cost of services rendered; and
(B) do not represent a direct or indirect protection for domestic goods or a taxation of imports for fiscal purposes; and
(iii) any anti-dumping or countervailing duty applied consistently with the provisions of Article VI of the GATT 1994, the WTO Agreement on Implementation of Article VI of the GATT 1994, and the WTO Agreement on Subsidies and Countervailing Measures;
(b) ìexport subsidyî means a subsidy as defined by Article 3 of the WTO Agreement on Subsidies and Countervailing Measures and includes export subsidies listed in Article 9 of the WTO Agreement on Agriculture; and
(c) ìthe GATT 1994î means the WTO General Agreement on Tariffs and
Trade 1994, including Annex I (Notes and Supplementary Provisions).
ARTICLE 2
National Treatment on Internal Taxation and Regulation
Each Party shall accord national treatment to the goods of the other Party in accordance with Article III of the GATT 1994. To this end, the provisions of Article
III of the GATT 1994, are incorporated into and shall form part of this Agreement.
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ARTICLE 3
Customs Duties
free from the date of entry into force of this Agreement.
ARTICLE 4
Customs Value
The Parties shall determine the customs value of goods traded between them
in accordance with the provisions of Article VII of the GATT 1994 and the WTO
Agreement on Implementation of Article VII of the GATT 1994.
ARTICLE 5
Export Duties
A Party shall not impose export duties on the goods set out in Annex 1 (Export
Duties), when exported from its territory to the territory of the other Party.
ARTICLE 6
Non-tariff Measures
ARTICLE 7
Subsidies and Countervailing Measures
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ARTICLE 8
Anti-Dumping Measures
their commitment to the provisions of the WTO Agreement on Implementation of
Article VI of the GATT 1994.
(a) the time frame to be used for determining the volume of dumped imports in an investigation or review shall be representative of the imports of both dumped and non-dumped goods, for a reasonable period, and such reasonable period shall normally be at least 12 months;
(b) if a decision is taken to impose an anti-dumping duty pursuant to Article 9.1 of the WTO Agreement on Implementation of Article VI of the GATT 1994, the Party taking such a decision, shall normally apply the ìlesser dutyî rule, by imposing a duty which is less than the dumping margin where such lesser duty would be adequate to remove the injury to the domestic industry; and
(c) notification procedures shall be as follows:
(i) immediately following the acceptance by a Party of a properly documented application from an industry in that Party for the initiation
of an anti-dumping investigation in respect of goods from the other
Party, the first Party shall immediately inform the other Party;
(ii) where a Party considers that, in accordance with Article 5 of
the WTO Agreement on Implementation of Article VI of the GATT
1994, there is sufficient evidence to justify the initiation of an anti- dumping investigation, it shall give written notice to the other Party and shall act in accordance with Article 17.2 of that Agreement concerning consultations.
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ARTICLE 9
Safeguard Measures
A Party shall not initiate or take any safeguard measure within the meaning of the WTO Agreement on Safeguards against the goods of the other Party from the date
of entry into force of this Agreement.
ARTICLE 10
Transparency
Article X of the GATT 1994 is incorporated into and shall form part of this
Agreement.
ARTICLE 11
Measures to Safeguard the Balance of Payments
Where a Party is in serious balance of payments and external financial difficulties or threat thereof, it may, in accordance with the GATT 1994 and the Understanding on the Balance-of-Payments Provisions of the GATT 1994, adopt restrictive import measures.
ARTICLE 12
General Exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties where the same conditions prevail, or a disguised restriction on
international trade, nothing in this Chapter shall be construed to prevent the adoption
or enforcement by a Party of measures:
(a) necessary to protect public morals;
(b) necessary to protect human, animal or plant life or health;
(c) relating to the importations or exportations of gold or silver;
(d) necessary to secure compliance with laws or regulations which are not
inconsistent with the provisions of this Chapter, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII of the GATT 1994, the protection
of patents, trade marks and copyrights, and the prevention of deceptive
practices;
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(e) relating to the products of prison labour;
(f) imposed for the protection of national treasures of artistic, historic or archaeological value;
(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;
(h) undertaken in pursuance of obligations under any intergovernmental commodity agreement which conforms to criteria submitted to the WTO and not disapproved by it or which is itself so submitted and not so disapproved;
(i) involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilization plan; Provided that such restrictions shall not operate to increase the exports of or the protection afforded to such domestic industry, and shall not depart from the provisions of
this Chapter relating to non-discrimination;
(j) essential to the acquisition or distribution of products in general or local short supply; Provided that any such measures shall be consistent with the principle that all WTO members are entitled to an equitable share of the international supply of such products, and that any such measures, which are
inconsistent with the other provisions of this Chapter shall be discontinued as soon as the conditions giving rise to them have ceased to exist.
ARTICLE 13
Security Exceptions
Nothing in this Chapter shall be construed:
(a) to require any Party to furnish any information the disclosure of which
it considers contrary to its essential security interests;
(b) to prevent any Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to fissionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military
establishment;
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(iii) taken in time of war or other emergency in international relations; or
(c) to prevent any Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
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ARTICLE 1
Definitions
For the purposes of this Chapter:
(a) ìallowable cost to manufactureî means the sum of:
(i) the allowable expenditure on materials by the principal manufacturer calculated in accordance with Article 6 (Calculation of Costs ñ Allowable Expenditure on Materials); and
(ii) the allowable expenditure on labour by the principal manufacturer calculated in accordance with Article 7 (Calculation of Costs ñ Allowable Expenditure on Labour); and
(iii) the allowable expenditure on overheads by the principal manufacturer calculated in accordance with Article 8 (Calculation of Costs ñ Allowable Expenditure on Overheads);
(b) ìCertificate of Originî means a certificate complying with the requirements of Annex 2A (Certificate of Origin Requirements);
(c) ìDeclarationî means a declaration made in accordance with Article
11.6;
(d) ìGenerally Accepted Accounting Principlesî means the recognised consensus or substantial authoritative support in the territory 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. These standards may encompass broad guidelines of general application as well as detailed standards, practices and procedures;
(e) ìinner containerî includes any container into which goods or materials,
as the case may be, are packed, other than a shipping or airline container,
pallet or other similar article;
(f) ìinputî means any matter or substance used or consumed in the manufacture or production of materials (other than matter or substance that is treated as an overhead);
(g) ìmanufactureî means the creation of an article essentially different from the matters or substances that go into such manufacture. Manufacture does not include the following activities, performed alone or in combination with each other:
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(i) restoration or renovation processes such as repairing, re- conditioning, overhauling or refurbishing;
(ii) minimal operations such as pressing, labelling, ticketing, packaging and preparation for sale, conducted alone or in combination with each other; or
(iii) quality control inspections;
(h) ìmaterialî means any matter or substance purchased by the principal manufacturer, and used or consumed in the processing of goods that are
exported to the territory of the importing Party (other than matter or substance that is treated as an overhead);
(i) ìoriginating goodsî, as used in Chapter 2 (Trade in Goods) and this Chapter, means goods that qualify as originating in accordance with the relevant provisions of Section A of this Chapter;
(j) ìpreferential tariff treatmentî means the customs duty rate that is applicable to an originating good pursuant to Article 3.1 of Chapter 2 (Trade
in Goods);
(k) ìprincipal manufacturerî means the person in the territory of a Party who performs, or has had performed on its behalf, the last process of manufacture of the goods;
(l) ìprocessî means any operation performed on the goods and includes:
(i) a process of manufacture;
(ii) minimal operations such as pressing, labelling, ticketing, packaging and preparation for sale, conducted alone or in combination with each other; and
(iii) quality control inspections;
(m) ìproductionî, in relation to wholly obtained goods, means growing, mining, harvesting, fishing, hunting, gathering, trapping, capturing, farming, cultivating1 or otherwise obtaining wholly obtained goods;
(n) ìproducerî, in relation to wholly obtained goods, means a person who grows, mines, harvests, fishes, hunts, gathers, traps, captures, farms, cultivates
or otherwise obtains wholly obtained goods;
(o) ìproduceî, in relation to wholly obtained goods, means to grow, mine, harvest, fish, hunt, gather, trap, capture, farm, cultivate or otherwise obtain wholly obtained goods;
1 Cultivating includes the process of aquaculture.
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(p) ìtotal cost to manufactureî means the sum of:
(i) the total expenditure on materials by the principal manufacturer calculated in accordance with Article 5 (Calculation of Costs ñ Total Expenditure on Materials);
(ii) the allowable expenditure on labour by the principal manufacturer calculated in accordance with Article 7 (Calculation of Costs ñ Allowable Expenditure on Labour);
(iii) the allowable expenditure on overheads by the principal manufacturer calculated in accordance with Article 8 (Calculation of Costs ñ Allowable Expenditure on Overheads); and
(iv) where applicable, the total expenditure by the principal manufacturer on a process, or processes, in the manufacture of the goods performed in the territory of a non-Party calculated in accordance with Article 9 (Calculation of Costs ñ Total Expenditure on Overseas Processing Costs);
(q) ìunmanufactured raw productsî means:
(i) natural or primary products that have not been subjected to an industrial process, other than an ordinary process of primary production, and includes:
(A) animals and products obtained from animals, including greasy wool;
(B) plants and products obtained from plants;
(C) minerals in their natural state and ores; and
(D) crude petroleum; OR
(ii) raw materials recovered in the territory of a Party from waste and scrap;
(r) ìwaste and scrapî means only waste and scrap that:
(i) have been derived from manufacturing operations or consumption; and
(ii) are fit only for the recovery of raw materials; and
(s) ìwholly obtained goodsî means unmanufactured raw products, or waste and scrap.
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ARTICLE 2
Recording of Costs and Tariff Classification
For the purposes of this Chapter:
(a) all costs shall be recorded and maintained in accordance with the Generally Accepted Accounting Principles applicable in the territory of the Party in which the goods are produced or manufactured; and
(b) the basis for tariff classification is the Harmonized Commodity
Description and Coding System.
Section A: Origin Conferment
ARTICLE 3
Originating Goods
(a) wholly obtained goods produced in the territory of that Party;
(b) goods wholly manufactured in that Party from one or more of the following:
(i) unmanufactured raw products;
(ii) waste and scrap produced in the territory of either Party;
(iii) materials wholly manufactured within the territory of either
Party; and/or
(iv) materials that are determined by both Parties to be materials meeting the requirements of Article 3.1(b)(iii);
(c) goods partly manufactured in that Party, provided that the following conditions are met:
(i) that in relation to any goods:
(A) the last process of manufacture was performed in the territory of that Party by, or on behalf of, the principal manufacturer; and
(B) the allowable cost to manufacture the goods is not less than the percentage of the total cost to manufacture the goods specified below:
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(I) 30% for the goods specified in Annex 2D (List of Goods Subject to 30% Threshold); or
(II) 50% for all other goods;
OR
(ii) that in relation to any goods other than those specified in
Annex 2C (List of Goods which Must be Subject to the Last Process of
Manufacture within the Territory of a Party):
(A) one or more processes of manufacture was or were
performed in the territory of that Party by, or on behalf of, the
principal manufacturer;
(B) one or more processes was or were performed in the territory of that Party by, or on behalf of, the principal manufacturer immediately prior to export of the goods to the
territory of the other Party;
(C) the principal manufacturer in that Party incurred all the costs associated with any process performed in the territory of a non-Party; and
(D) the allowable cost to manufacture the goods is not less than the percentage of the total cost to manufacture the goods specified below:
(I) 30% for the goods specified in Annex 2D (List of Goods Subject to 30% Threshold); or
(II) 50% for all other goods.
the importing Party may determine that:
(a) the percentage of 30% can be read as 28%; or
(b) the percentage of 50% can be read as 48%.
to particular goods, or goods of a specific class or kind, in accordance with procedures
to be agreed between the Parties.
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ARTICLE 4
Calculation of Costs ñ General Provisions
(a) the allowable cost to manufacture the goods excludes:
(i) the cost of any material purchased by the principal manufacturer and subsequently processed in the territory of a non- Party; and
(ii) the cost of processing (including the cost of labour or overheads) any material referred to in (i) above that is performed,
whether in the territory of a Party or a non-Party, up until the return of
the processed material to the territory of a Party; and
(b) where minimal operations or quality control inspections are conducted by, or on behalf of, the principal manufacturer, in the territory of a Party, as part of a manufacturing process, the costs of those operations or the quality control inspections, to the extent that they relate to the cost of materials, labour or overheads, can be included in the calculation of the total expenditure on materials and the allowable expenditure on materials, labour and overheads,
as appropriate.
ARTICLE 5
Calculation of Costs ñ Total Expenditure on Materials
Subject to the provisions of Article 4 (Calculation of Costs ñ General
Provisions), for the purposes of ascertaining the total cost to manufacture the goods,
as required by Article 3 (Originating Goods), the total expenditure on materials by the principal manufacturer shall be calculated in accordance with the following provisions:
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(a) subject to Articles 5(b) and 5(c), the total expenditure on materials by the principal manufacturer is the amount incurred, directly or indirectly, by the principal manufacturer for all materials;
(b) the following costs that form part of the amount incurred, directly or indirectly, by the principal manufacturer for a material shall be included in the total expenditure on materials by the principal manufacturer:
(i) freight, insurance, shipping and packing costs, and all other
costs incurred in transporting the material to the first place in the territory of either Party at which a process is performed on that material by, or on behalf, of the principal manufacturer; and
(ii) customs brokerage fees on the material paid in the territory of one or both Parties; and
(c) the following costs, imposed on the materials by either Party, that form part of the amount incurred, directly or indirectly, by the principal manufacturer for a material, shall be excluded from the total expenditure on materials by the principal manufacturer:
(i) a customs or excise duty; and
(ii) a tax in the nature of a sales tax, a goods and services tax, an anti-dumping duty or a countervailing duty.
ARTICLE 6
Calculation of Costs ñ Allowable Expenditure on Materials
Subject to the provisions of Article 4 (Calculation of Costs ñ General Provisions), for the purposes of ascertaining the allowable cost to manufacture the goods, as required by Article 3 (Originating Goods), the allowable expenditure on materials by the principal manufacturer shall be calculated in accordance with the following provisions:
(a) subject to Articles 6(b) to 6(d), the allowable expenditure on materials
by the principal manufacturer is the amount incurred, directly or indirectly, by
the principal manufacturer for all materials, in the form purchased by the principal manufacturer, that were manufactured or produced in the territory of either Party;
(b) the following costs that form part of the amount incurred, directly or indirectly, by the principal manufacturer for a material specified in Article 6(a) shall be included in the allowable expenditure on materials by the principal manufacturer:
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(i) freight, insurance, shipping and packing costs, and all other
costs incurred in transporting the material to the first place in the
territory of either Party at which a process is performed on that material by, or on behalf of, the principal manufacturer; and
(ii) customs brokerage fees on the material paid in the territory of one or both Parties;
(c) the following costs that form part of the amount incurred, directly or indirectly, by the principal manufacturer for a material specified in Article 6(a) shall be excluded from the allowable expenditure on materials by the principal manufacturer:
(i) a customs or excise duty;
(ii) a tax in the nature of a sales tax, a goods and services tax, an anti-dumping duty or a countervailing duty, imposed on the materials by either Party; and
(iii) the cost of any input that, in the form it was received by the manufacturer or producer of the material, was not manufactured or produced in the territory of either Party, unless Article 6(d) applies; and
(d) where, in relation to a particular material, other than a material that is provided for processing in a non-Party, the total cost of all inputs that would otherwise be excluded from the allowable expenditure on materials by the principal manufacturer by virtue of Article 6(c)(iii), does not exceed 50% of the total expenditure on that material by the principal manufacturer, as calculated in accordance with Article 5(a), the total cost of those inputs may
be included in the allowable expenditure on materials by the principal manufacturer.
ARTICLE 7
Calculation of Costs ñ Allowable Expenditure on Labour
Subject to the provisions of Article 4 (Calculation of Costs ñ General Provisions), for the purposes of ascertaining the total cost to manufacture and the allowable cost to manufacture the goods, as required by Article 3 (Originating Goods), the allowable expenditure on labour by the principal manufacturer shall be the sum of the part of each cost set out in Section (i) (Labour Costs) of Annex 2B (Allowable
Labour and Overhead Costs):
(a) that is incurred, directly or indirectly, by the principal manufacturer;
(b) that relates, directly or indirectly, and wholly or partly, to the processing of the goods in the territory of the Party; and
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(c) that can reasonably be allocated to the processing of the goods in the
territory of the Party.
ARTICLE 8
Calculation of Costs ñ Allowable Expenditure on Overheads
Subject to the provisions of Article 4 (Calculation of Costs ñ General Provisions), for the purposes of ascertaining the total cost to manufacture and allowable cost to manufacture the goods, as required by Article 3 (Originating Goods), the allowable expenditure on overheads by the principal manufacturer shall be the sum of the part of each cost set out in Section (ii) (Overheads) of Annex 2B
(Allowable Labour and Overhead Costs):
(a) that is incurred, directly or indirectly, by the principal manufacturer;
and
(b) that relates, directly or indirectly, and wholly or partly, to the processing of the goods in the territory of the Party; and
(c) that can reasonably be allocated to the processing of the goods in the
territory of the Party.
ARTICLE 9
Calculation of Costs ñ Total Expenditure on Overseas Processing Costs
Subject to the provisions of Article 4 (Calculation of Costs ñ General
Provisions), for the purposes of ascertaining the total cost to manufacture the goods,
as required by Article 3 (Originating Goods), the total expenditure by the principal manufacturer on a process, or processes, performed in the territory of the non-Party shall be the sum of that part of each cost:
(a) that is incurred, directly or indirectly, by the principal manufacturer;
and
(b) that relates, directly or indirectly, and wholly or partly, to the processing of the goods in the territory of a non-Party, including any associated transport costs; and
(c) that can reasonably be allocated to the processing of the goods in the
territory of the non-Party.
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Section B: Consignment Criteria
ARTICLE 10
Consignment
Preferential tariff treatment shall apply only to originating goods of a Party where they are:
(a) transported directly from the territory of that Party to the territory of the other Party;
(b) transported through the territories of one or more non-Parties, provided that the goods:
(i) did not undergo operations other than packing, packaging, unloading, reloading or operations to preserve them in good condition
in the territory of any such non-Party; and
(ii) were not traded or used in the territory of any such non-Party;
or
(c) transported from a non-Party where minimal operations were performed immediately after import from the Party in which the last process of manufacture was performed and immediately prior to export to the other Party.
Section C: Documentary Evidence
ARTICLE 11
Certification of Origin
a producer or an exporter to apply to an authorised body referred to in Annex 2A
(Certificate of Origin Requirements) for a Certificate of Origin.
revoked Certificate of Origin shall have no force from the date specified in that notice.
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by a representative of the exporter competent to make the Declaration and must
include:
(a) a reference to the exporterís invoice for the goods;
(b) a statement that the goods are identical to goods specified in a valid
Certificate of Origin nominated in the Declaration;
(c) a statement that the goods are originating goods that comply with the rule specified in the nominated Certificate of Origin; and
(d) the signature, name and designation of the exporterís representative, and the date the Declaration is signed.
of the goods, the exporting Party shall require that, prior to making a Declaration pursuant to Article 11.6, the exporter must ensure that the producer or principal manufacturer has a copy of the relevant Certificate of Origin and has obtained from that producer or principal manufacturer written confirmation that the goods are originating goods. The confirmation shall be completed by the representative of the producer or principal manufacturer who is competent to make the confirmation, and shall include:
(a) a reference to the evidence of sale of the goods between the producer
or principal manufacturer and the exporter;2
(b) a statement that the goods are identical to goods specified in a valid
Certificate of Origin nominated in the confirmation;
(c) a statement that the goods are originating goods that comply with the rule specified in the nominated Certificate of Origin; and
(d) the signature, name and designation of the principal manufacturerís representative, and the date the confirmation is signed.
2 Evidence of sale in most cases would refer to an invoice number and not the purchase order number.
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ARTICLE 12
Claim for Preferential Tariff Treatment
treatment to goods imported into its territory from the other Party, provided that the goods are originating goods, the consignment criteria specified in Article 10
(Consignment) have been met, and the importer claiming preferential tariff treatment:
(a) has a valid Certificate of Origin and a Declaration relevant to those goods in its possession when claiming preferential tariff treatment; and
(b) provides a copy of that Certificate of Origin and that Declaration if requested by the importing Party.
after the date of entry into force of this Agreement and for which no preferential tariff
treatment was earlier applied, if:
(a) the claim for preferential tariff treatment is made within 12 months from the date of payment of customs duties, subject to domestic laws and practices in the importing Party; and
(b) the importer provides a copy of the valid Certificate of Origin and
Declaration relevant to those goods.
ARTICLE 13
Records
(a) a producer, a principal manufacturer or an exporter that obtains a
Certificate of Origin, an exporter that makes a Declaration pursuant to Article
11.6, or a producer or principal manufacturer that makes a confirmation
pursuant to Article 11.7 must maintain, for 5 years from the date of the
Certificate of Origin, Declaration or confirmation, as the case may be, all records relating to the origin of the goods for which preferential tariff treatment is claimed in the importing Party, including records associated with:
(i) the purchase of, cost of, value of, and payment for, the goods that were exported from its territory;
23
(ii) the purchase of, cost of, value of, and payment for, all materials used or consumed in the manufacture or production of the goods that were exported from its territory;
(iii) the manufacture or production of the goods in the form in which the goods were exported from its territory; and
(iv) the Certificate of Origin, Declaration and confirmation, as the case may be, relevant to the goods; and
(b) an importer claiming preferential tariff treatment must maintain, for 5
years after the date of importation of the goods, all records relating to the
importation of the goods, including a copy of the Certificate of Origin and the
Declaration relevant to those goods.
ARTICLE 14
Origin Verifications
(a) instituting measures to establish the validity of the Certificate of Origin,
Declaration or confirmation;
(b) issuing written questionnaires to be completed within a period of 30
days;
(c) requesting the supply of records relating to the production, manufacture or export of the goods; and
(d) visiting the factory or premises of the producer, principal manufacturer,
or exporter or any other party in the territory of a Party associated with the production, manufacture, import or export, of the goods or of the materials or inputs used therein.
24
in Article 14.2(d) within the territory of the exporting Party without the prior consent
of that party.
be provided to all relevant parties within 10 days of the decision being made.
ARTICLE 15
Suspension and Denial of Preferential Tariff Treatment
of preferential tariff treatment to goods that are the subject of origin verification
action under Article 14 (Origin Verifications) for the duration of that action, or any part thereof.
(a) the goods do or did not meet the requirements of this Chapter;
(b) the producer, principal manufacturer, exporter, or importer of goods fails or has failed to comply with any of the relevant requirements for
obtaining preferential tariff treatment; or
(c) action taken under Article 14 (Origin Verifications) failed to verify
eligibility of the goods for preferential tariff treatment.
Section D ñ Review and Appeal of Origin Determinations
ARTICLE 16
Review and Appeal
The importing Party shall grant the right of appeal in matters relating to eligibility for preferential tariff treatment to producers, principal manufacturers, exporters or importers of goods traded or to be traded between the Parties, in accordance with its domestic laws and practices.
Section E ñ Consultation and Modifications
25
ARTICLE 17
Consultation and Modifications
an effective and uniform manner, in accordance with the spirit and the objectives of this Agreement.
2D (List of Goods Subject to 30% Threshold) which significantly affects a Partyís principal manufacturer, producer or exporter, the Parties shall enter into consultations
on the possibility of including the goods in question into Section (i) of Annex 2D
(List of Goods Subject to 30% Threshold).
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ARTICLE 1
Purpose and Definitions
(a) ìcustoms lawî means any statutory and regulatory provisions applicable or enforceable by the respective customs administration of each Party; and
(b) ìcustoms proceduresî means the treatment applied by the customs administration of each Party to goods which are subject to customs control.
ARTICLE 2
Scope
This Chapter shall apply, in accordance with the Partiesí respective national laws, rules and regulations, to customs procedures required for clearance of goods traded between the Parties.
ARTICLE 3
General Provisions
further mutually beneficial arrangements to facilitate bilateral trade.
27
(a) be contrary to the public interest as determined by its law, rules and regulations;
(b) be contrary to any of its laws, rules and regulations including but not limited
to those protecting personal privacy or the financial affairs and accounts of
individual customers of financial institutions; or
(c) impede law enforcement.
ARTICLE 4
Paperless Trading
ARTICLE 5
Risk Management
as to facilitate the clearance of low-risk goods and focus on high-risk goods.
ARTICLE 6
Sharing of Best Practices
For future cooperative arrangements, both Parties shall facilitate initiatives to enhance further the exchange of information on best practices in relation to customs procedures, including the application of risk management techniques.
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PHYTOSANITARY MEASURES
ARTICLE 1
Purposes and Definitions
(a) facilitate trade and investment between the Parties through collaborative efforts which minimise the impact of mandatory requirements and/or assessments of manufacturers or manufacturing processes on the goods traded between the Parties, in the most appropriate or cost-effective manner;
(b) complement bilateral agreements and arrangements between the
Parties relating to mandatory requirements; and
(c) build on the Mutual Recognition Agreement on Conformity Assessment between the Government of Australia and the Government of the Republic of Singapore.
(a) ìconformity assessmentî shall have the same meaning as in the Mutual
Recognition Agreement on Conformity Assessment between the Government
of Australia and the Government of the Republic of Singapore;
(b) ìequivalenceî means the state wherein mandatory requirements
applied in the territory of the exporting Party, though different from the
mandatory requirements applied in the territory of the importing Party, meet the legitimate objective or achieve the appropriate level of sanitary or phytosanitary protection of the mandatory requirements applied in the territory
of the importing Party;
(c) ìmandatory requirementsî means all technical regulations and sanitary and phytosanitary measures as may be set out in a Partyís laws, regulations and administrative requirements;
(d) ìregulatory authorityî means an entity of a Party that exercises a legal
right to determine the mandatory requirements, control the import, use or supply of goods within its territory and/or take enforcement action to ensure
that goods marketed within its territory comply with its mandatory requirements;
29
(e) ìsanitary or phytosanitary measureî shall have the same meaning as in the WTO Agreement on the Application of Sanitary and Phytosanitary Measures;
(f) ìSectoral Annexî means an annex to this Chapter which specifies the arrangements in respect of a specific product sector; and
(g) ìtechnical regulationî shall have the same meaning as in the WTO Agreement on Technical Barriers to Trade.
ARTICLE 2
Scope and Obligations
(a) mandatory requirements, as appropriate to its particular national circumstances; and
(b) mandatory requirements necessary to ensure the quality of its imports,
or for the protection of human, animal or plant life or health, or the environment, or for the prevention of deceptive practices or to fulfil other legitimate objectives, at the levels it considers appropriate.
its mandatory requirements. This includes the authority to take appropriate measures
for goods that do not conform to the Partyís mandatory requirements. Such measures may include withdrawing goods from the market, prohibiting their placement on the market or restricting their free movement, initiating a product recall or prohibiting an import.
ARTICLE 3
Origin
This Chapter applies to all goods and/or assessments of manufacturers or manufacturing processes of goods traded between the Parties, regardless of the origin
of those goods, unless otherwise specified in a Sectoral Annex, or unless otherwise
specified by any mandatory requirement of a Party.
30
ARTICLE 4
Harmonisation
The Parties shall, where appropriate, endeavour to work towards harmonisation of their respective mandatory requirements taking into account relevant international standards, recommendations and guidelines, in accordance with their international rights and obligations.
ARTICLE 5
Equivalence of Mandatory Requirements
each otherís mandatory requirements consistent with the purpose of this Chapter.
(a) the procedures for determining and implementing the equivalence of each Partyís mandatory requirements; and/or
(b) the procedures for accepting the results of the conformity assessment and approval procedures; and
(c) the regulatory authorities designated by each Party.
ARTICLE 6
Cooperative Activities on Sanitary and Phytosanitary/Quarantine Matters
certificates.
31
ARTICLE 7
Conformity Assessment
Mutual Recognition Agreement on Conformity Assessment between the Government
of Australia and the Government of the Republic of Singapore, shall consider
arrangements additional to those provided for in this Chapter to ensure that
differences between the structure, organization and operation of conformity assessment procedures in their respective territories do not unnecessarily impede trade between them.
as may be necessary, the principles set out in the APEC Information Notes on Good Regulatory Practice for Technical Regulation with respect to conformity assessment and approval procedures in meeting their international obligations under the WTO Agreement on Technical Barriers to Trade.
ARTICLE 8
Exchange of Information, and Consultation
(a) broaden the exchange of information; and
(b) give favourable consideration to any written request for consultation.
(a) identify and develop new Sectoral Annexes for priority sectors for this
Chapter;
(b) agree to amend or increase the scope of existing Sectoral Annexes with
a view to minimising the impact of mandatory requirements on goods traded between the Parties; and
32
(c) agree on a work programme for the implementation of this Article,
consistent with the provisions of this Chapter, and implement that work
programme expeditiously.
ARTICLE 9
Confidentiality
Nothing in this Chapter shall be construed to require either Party to furnish or allow access to information the disclosure of which it considers would:
(a) be contrary to its essential security interests;
(b) be contrary to the public interest as determined by its domestic laws, rules and regulations;
(c) be contrary to any of its domestic laws, rules and regulations, including
but not limited to those protecting personal privacy or the financial affairs and accounts of individual customers of financial institutions;
(d) impede law enforcement; or
(e) prejudice legitimate commercial interests of particular enterprises, public or private.
ARTICLE 10
Final Provisions on Sectoral Annexes
33
ARTICLE 1
Definitions
(a) ìconfidential informationî includes: trade secrets; know-how; privileged information; or any other information that is expressed to be confidential or sensitive by the person disclosing the information or is disclosed in circumstances importing, either expressly or implicitly, an obligation of confidence as recognised by the laws, regulations, procedures and practices of the Party concerned;
(b) ìentitiesî means:
(i) for Australia, those entities listed at Annex 3A and their successors other than those subsequently commercialised or privatised; and
(ii) for Singapore, those entities listed at Annex 3B and their successors other than those subsequently commercialised or privatised;
(b) ìlimited tendering proceduresî means those tendering procedures in which the procuring entity directly invites one or more suppliers to submit
tenders;
(c) ìopen tendering proceduresî means those tendering procedures in which the procuring entity issues a public call for tenders; and
(d) ìtender processî includes all activities directly related to the process of procuring goods or services conducted by a Party or its entities which is open
to participation by persons of the other Party before a contract for the supply of those goods or services is concluded.
ARTICLE 2
Scope and Coverage
34
(a) any law, regulation, procedure or practice regarding any procurement by entities; and
(b) procurement of goods and services 1 by any contractual means, including through such methods as purchase or as lease, rental or hire purchase, with or without an option to buy, including any combination of goods and services.
(a) internal procurement of goods and services by a Party from its own entities where no other supplier has been asked to tender. However, where such an entity submits a tender in an open tendering procedure, this Chapter shall apply;
(b) procurement of proprietary items required to ensure the integrity of machinery, equipment or systems. However, where such items are available from a number of sources and an open tendering procedure is used, this Chapter shall apply;
(c) procurement of proprietary equipment of a work, health or safety nature specified in industrial agreements. However, where such items are available from a number of sources and an open tendering procedure is used,
this Chapter shall apply;
(d) procurement for the purposes of overseas development assistance;
(e) procurement of goods and services outside the territory of the procuring Party, for consumption outside the territory of the procuring Party;
or
(f) procurement of asset management and financial advisory services pertaining to reserves held by each Partyís Government or its entities.
ARTICLE 3
National Treatment
1 For the purposes of this Chapter, ìgoods and servicesî includes construction.
35
(a) that its entities shall not treat a locally-established supplier less favourably than another locally-established supplier on the basis of degree of foreign affiliation or ownership; and
(b) that its entities shall not discriminate against a locally-established supplier on the basis that it is a supplier of a good or service of the other Party.
Party is a shareholder.
ARTICLE 4
Rules of Origin
A Party shall not apply rules of origin to goods or services imported or supplied for purposes of government procurement covered by this Chapter from the other Party, which are different from the rules of origin applied in the normal course
of trade and at the time of the transaction in question to imports or supplies of the
same goods or services from that other Party.
ARTICLE 5
Technical Specifications
Technical specifications laying down the characteristics of the goods or services to be procured shall not be prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to trade between the Parties.
ARTICLE 6
Tendering Principles
36
have a mechanism to eliminate potential conflict of interest between persons administering the process and suppliers participating in the process.
ARTICLE 7
Registration and Qualification of Suppliers
37
ARTICLE 8
Protection and Proper Use of Confidential Information
or its entities, the latter Party shall ensure that such information is kept confidential
and is not used for a purpose other than that for which it was disclosed, except where disclosure is required:
(a) by an order of a court or tribunal;
(b) by a House of Parliament or its Committees, however the relevant
Party or entity may resist such an order by a claim of public interest immunity;
or
(c) under legislation governing access to government information, unless
an exception or exemption under such legislation is successfully invoked in relation to the information.
ARTICLE 9
Protection of Intellectual Property in a Tender Process and the Resulting Contracts
(Intellectual Property) that is supplied by a person of a Party in a tender process shall
not lose that protection on the sole basis that it is so supplied.
intellectual property rights in material that existed prior to the date of the contract unless the contracting Parties expressly agree otherwise in the contract.
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ARTICLE 10
Application of provisions of other Chapters to this Chapter
The provisions of Article 4 (Competitive Neutrality) of Chapter 12
(Competition Policy) shall apply, mutatis mutandis, to procurements within the scope
of this Chapter.
ARTICLE 11
Electronic Procurement
(a) promote equitable access for all potential suppliers of the other Party;
(b) promote the use of systems that are the most cost-effective for potential suppliers, where the Parties utilise authentication systems;
(c) provide for the least cost to potential suppliers, where the Parties elect
to procure goods or services through online or reverse auctions;
(d) protect documentation from unauthorised and undetected alteration;
and
(e) provide appropriate levels of security for data on, and passing through, the procuring entityís network.
ARTICLE 12
Review of tender process
39
the context of a procurement in which they have, or have had, an interest, each Party shall encourage the supplier to seek resolution of its complaint in consultation with the procuring entity. In such instances the procuring entity shall accord timely and impartial consideration to any such complaint.
ARTICLE 13
Transparency
(a) procurement laws, regulations, and policy guidelines;
(b) open tendering opportunities and the conditions for participation;
(c) supplier qualification mechanisms and criteria for qualification; and
(d) decisions on contract awards.
ARTICLE 14
Exceptions
protection of its essential security interests relating to the procurement of arms, ammunition or war materials, or to procurement indispensable for national security or
for national defence purposes.
40
countries where the same conditions prevail or a disguised restriction on international
trade, nothing in this Chapter shall be construed to prevent either Party from imposing
or enforcing measures:
(a) necessary to protect public morals, order or safety, human, animal or plant life or health or intellectual property;
(b) relating to the goods or services of handicapped persons, of philanthropic institutions or of prison labour; or
(c) relating to the conservation of exhaustible natural resources.
ARTICLE 15
Opportunities for indigenous persons
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade, nothing in this Chapter shall prevent Australia from promoting employment and training opportunities for its indigenous people in regions where significant indigenous populations exist.
ARTICLE 16
Industry Development
Nothing in this Chapter shall prevent the Parties from using government procurement to promote industry development including measures to assist small and medium enterprises (SMEs) within their territory to gain access to the government procurement market.
ARTICLE 17
Dispute Settlement
A Party may not initiate dispute settlement proceedings under Chapter 16
(Dispute Settlement) regarding its rights and obligations under this Chapter unless:
(a) the matter giving rise to the dispute involves a pattern of practice; and
(b) the suppliers affected have exhausted the available remedies regarding the particular matter.
41
ARTICLE 18
Review of Commitments
42
ARTICLE 1
Definitions
For the purposes of this Chapter:
(a) ìa service supplied in the exercise of governmental authorityî means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers;
(b) ìcommercial presenceî means any type of business or professional establishment, including through:
(i) the constitution, acquisition or maintenance of a legal person, or
(ii) the creation or maintenance of a branch or a representative office,
within the territory of a Party for the purpose of supplying a service;
(c) ìdirect taxesî comprise all taxes on total income, on total capital or on elements of income or of capital, including taxes on gains from the alienation
of property, taxes on estates, inheritances and gifts, and taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital
appreciation;
(d) ìexisting measuresî means measures in force as of the date of entry
into force of this Agreement;
(e) ìlegal personî 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;
(f) ìlegal person of the other Partyî means a legal person which is either:
(i) constituted or otherwise organised under the law of the other
Party; or
(ii) in the case of the supply of a service through commercial presence, owned or controlled by:
(A) natural persons of the other Party; or
43
(B) legal persons of the other Party identified under Article
1(f)(i);
(g) ìmeasureî means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
(h) ìmeasures by Partiesî means measures taken by:
(i) central, regional or local governments and authorities; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
(i) ìmeasures by Parties affecting trade in servicesî include measures in respect of:
(i) the purchase, payment or use of a service;
(ii) 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;
(iii) the presence, including commercial presence, of persons of a
Party for the supply of a service in the territory of the other Party;
(j) ìmonopoly supplier of a serviceî means any person, public or private, which in the relevant market of the territory of a Party is authorised or established formally or in effect by that Party as the sole supplier of that service;
(k) ìnatural person of a Partyî means a natural person who resides in the territory of the Party or elsewhere and who under the law of that Party:
(i) is a national of that Party; or
(ii) has the right of permanent residence in that Party;
(l) ìnew measuresî means measures adopted after the date of entry into force of this Agreement;
(m) ìpersonî means either a natural person or a legal person;
(n) ìservicesî means all services including new and variant services in any sector except services supplied in the exercise of governmental authority;
(o) ìservice consumerî means any person that receives or uses a service;
(p) ìservice of the other Partyî means a service which is supplied:
44
(i) from or in the territory of the other Party, or in the case of maritime transport, by a vessel registered under the laws of the other Party, or by a person of the other Party which supplies the service through the operation of a vessel and/or its use in whole or in part; or
(ii) in the case of the supply of a service through commercial presence or through the presence of natural persons, by a service supplier of the other Party;
(q) ìservice supplierî means any person that supplies a service;1
(r) ìsupply of a serviceî includes the production, distribution, marketing, sale and delivery of a service; and
(s) ìtrade in servicesî is defined as the supply of a service:
(i) from the territory of a Party into the territory of the other Party
(ìcross-borderî);
(ii) in the territory of a Party to the service consumer of the other
Party (ìconsumption abroadî);
(iii) by a service supplier of a Party, through commercial presence
in the territory of the other Party (ìcommercial presenceî);
(iv) by a service supplier of a Party, through presence of natural persons of a Party in the territory of the other Party (ìpresence of natural personsî).
ARTICLE 2
Scope
(a) subsidies or grants provided by a Party or to any conditions attached to the receipt or continued receipt of such subsidies or grants, whether or not such subsidies or grants are offered exclusively to domestic services, service consumers or service suppliers; or
1 Where the service is not supplied directly by a legal person but through other forms of commercial presence such as a branch or a representative office, the service supplier (i.e. the legal person) shall, nonetheless, through such presence be accorded the treatment provided for service suppliers under this Agreement. 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.
45
(b) a service supplied in the exercise of governmental authority within the territory of each respective Party.
regulate the entry of natural persons of the other Party into, or their temporary stay in,
its territory, including those measures necessary to protect the integrity of, and to
ensure the orderly movement of natural persons across its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing
to the other Party under the terms of this Chapter.
ARTICLE 3
Market Access
Neither Party shall maintain or adopt, either on the basis of a regional subdivision or on the basis of its entire territory,:2
(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;3
(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, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test;
(e) measures which restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; and
(f) limitations on the participation of foreign capital in terms of maximum
2 Subject to the reservations that a Party makes in respect of market access pursuant to Article 5
(Reservations), where the cross-border movement of capital is an essential part of a service supplied
through the mode of supply referred to in Article 1(s)(i), that Party is hereby committed to allow such movement of capital. Subject to the reservations that a Party makes in respect of market access pursuant to Article 5 (Reservations), where a service is supplied through the mode of supply referred to
in Article 1(s)(iii) that Party is hereby committed to allow related transfers of capital into its territory.
3 Article 3(c) does not cover measures of a Party which limit inputs for the supply of services.
46
percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.
ARTICLE 4
National Treatment
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.
ARTICLE 5
Reservations
(a) any existing non-conforming measure that is maintained by a Party at:
(i) the central or regional level, as set out in Annex 4-I; or
(ii) the local level; or
(b) the continuation or prompt renewal of any non-conforming measure referred to in Article 5.1(a).
(a) any existing non-conforming measure that is maintained by a Party as set out in Annex 4-I; or
47
(b) any existing or new measure that a Party adopts or maintains with respect to sectors, subsectors or activities as set out in Annex 4-II.
(a) with respect to Annex 4-I, the non-conforming measure to which the reservation applies; and
(b) with respect to Annex 4-II, the sectors, subsectors or activities to which the reservation applies.
ARTICLE 6
Transitional Provisions on Regional Government Measures
in Annexes 4-I and 4-II.
of the Parties is required to preserve this balance. Article 7 (Modification or Addition
of Reservations) and Chapter 16 (Dispute Settlement) shall not apply to any such adjustments. The Parties shall not apply any measure affecting trade in services at the regional level in such a manner as would improve their negotiating position and leverage.
ARTICLE 7
Modification or Addition of Reservations
to arbitration in accordance with Chapter 16 (Dispute Settlement).
48
ARTICLE 8
Additional Commitments
III of this Agreement with respect to measures affecting trade in services not covered
by Articles 3 (Market Access) and 4 (National Treatment), including those regarding qualifications, standards or licensing matters and any other matters as may be mutually agreed.
ARTICLE 9
Transparency
on all such matters.
ARTICLE 10
Disclosure of Confidential Information
Nothing in this Chapter shall require any Party to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.
49
ARTICLE 11
Domestic Regulation
in services are administered in a reasonable, objective and impartial manner.
or procedures where this would be inconsistent with its constitutional structure or the nature of its legal system.
of the Party shall provide, without undue delay, information concerning the status of
the application.
(a) based on objective and transparent criteria, such as competence and
the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the service;
(c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.
(a) does not comply with the criteria outlined in Articles 11.5(a), 11.5(b)
or 11.5(c); and
50
(b) could not reasonably have been expected of that Party at the time the obligations were undertaken.
its competent authorities shall endeavour to:
(a) make publicly available:
(i) information on requirements and procedures to obtain, renew or retain any licences or professional qualifications; and
(ii) information on technical standards;
(b) explain, on request, the policy rationale of a measure, particularly of a new measure; and
(c) provide opportunity for comment, and give consideration to such comments, before their adoption, when introducing measures which significantly affect trade in services.
ARTICLE 12
Monopoly and Exclusive Service Suppliers
(National Treatment).
4 (National Treatment), the Party shall ensure that such a supplier does not abuse its
monopoly position to act in its territory in a manner inconsistent with such commitments.
4 The term ìrelevant international organisationsî refers to international bodies whose membership is open to relevant bodies of both Parties.
51
suppliers, where a Party, formally or in effect, (a) authorises or establishes a small number of service suppliers and (b) substantially prevents competition among those suppliers in its territory.
ARTICLE 13
Safeguard Measures
Neither Party shall take safeguard action against services and service suppliers
of the other Party from the date of entry into force of this Agreement. Neither Party shall initiate or continue any safeguard investigations in respect of services and service suppliers of the other Party.
ARTICLE 14
Payments and Transfers
members of the International Monetary Fund under the Articles of Agreement of the
Fund, including the use of exchange actions which are in conformity with the Articles
of Agreement, provided that a Party shall not impose restrictions on any capital
transactions inconsistently with its obligations under this Chapter regarding such transactions, except under Article 15 (Restrictions to Safeguard the Balance of
Payments) or at the request of the Fund.
ARTICLE 15
Restrictions to Safeguard the Balance of Payments
or threat thereof, a Party may adopt or maintain restrictions on trade in services in respect of which it has obligations under Articles 3 (Market Access) and 4 (National Treatment), including on payments or transfers for transactions relating to such obligations. It is recognized that particular pressures on the balance of payments of a Party in the process of economic development may necessitate the use of restrictions
to ensure, inter alia, the maintenance of a level of financial reserves adequate for the
implementation of its programme of economic development.
(a) be consistent with the Articles of Agreement of the International
Monetary Fund;
52
(b) avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(c) not exceed those necessary to deal with the circumstances described in
Article 15.1;
(d) be temporary and be phased out progressively as the situation specified
in Article 15.1 improves;
(e) be applied on a national treatment basis and such that the other Party is treated no less favourably than any non-Party.
consultations with the other Party in order to review the restrictions adopted by it.
ARTICLE 16
Government Procurement
Articles 3 (Market Access) and 4 (National Treatment) shall not apply to laws, regulations or requirements governing the procurement by governmental 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.
ARTICLE 17
Denial of Benefit
Subject to prior notification and consultation, a Party may deny the benefits of this Chapter to a service supplier of the other Party where the Party establishes that the service supplier is owned or controlled by persons of a non-Party and that it has no substantive business operations in the territory of the other Party.
ARTICLE 18
General Exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties where like conditions prevail, or a disguised restriction on trade in services,
nothing in this Chapter shall be construed to prevent the adoption or enforcement by a
Party of measures:
53
(a) necessary to protect public morals or to maintain public order;5
(b) necessary to protect human, animal or plant life or health;
(c) necessary to secure compliance with laws or regulations which are not
inconsistent with the provisions of this Chapter including those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on services contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
(iii) safety;
(d) inconsistent with Article 4 (National Treatment), provided that the difference in treatment is aimed at ensuring the equitable or effective 6 imposition or collection of direct taxes in respect of services or service suppliers of the other Party.
5 The public order exception may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society.
6 Measures that are aimed at ensuring the equitable or effective imposition or collection of direct taxes include measures taken by a Party under its taxation system which:
(i) apply to non-resident service suppliers in recognition of the fact that the tax obligation of non- residents is determined with respect to taxable items sourced or located in the Partyís territory; or
(ii) apply to non-residents in order to ensure the imposition or collection of taxes in the Party's territory; or
(iii) apply to non-residents or residents in order to prevent the avoidance or evasion of taxes, including compliance measures; or
(iv) apply to consumers of services supplied in or from the territory of the other Party in order to ensure the imposition or collection of taxes on such consumers derived from sources in the Party's territory; or
(v) distinguish service suppliers subject to tax on worldwide taxable items from other service suppliers, in recognition of the difference in the nature of the tax base between them; or
(vi) determine, allocate or apportion income, profit, gain, loss, deduction or credit of resident persons or branches, or between related persons or branches of the same person, in order to safeguard the Party's tax base.
Tax terms or concepts in Article 18(d) and in this footnote are determined according to tax definitions and concepts, or equivalent or similar definitions and concepts, under the domestic law of the Party taking the measure.
54
ARTICLE 19
Security Exceptions
Nothing in this Chapter shall be construed:
(a) to require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests; or
(b) to prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to the supply of services as carried out directly or indirectly for the purpose of provisioning a military establishment;
(ii) relating to fissionable and fusionable materials or the materials from which they are derived;
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
ARTICLE 20
Review of Commitments
4-II unilaterally, it shall give positive consideration to a request by the other Party for
the incorporation herein of the unilateral liberalisation. Any such incorporation should maintain the overall balance of commitments undertaken by each Party under this Agreement.
in competition with one or more service suppliers, the Party concerned may modify or add to its reservations in respect of that service. At the request of the other Party, the
Party concerned shall enter into consultations with a view to ensuring the maintenance
55
of the overall balance of commitments undertaken by each Party under this
Agreement.
ARTICLE 21
Review of Subsidies
ARTICLE 22
Air Transport Services
(a) "aircraft repair and maintenance services" mean such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and do not include so-called line maintenance;
(b) ìair transportî means the public carriage by aircraft of passengers, baggage, cargo or mail, separately or in combination, for remuneration or hire; and
(c) "computer reservation system (CRS) services" mean services provided
by computerised systems that contain information about air carriers' schedules,
availability, fares and fare rules, through which reservations can be made or tickets may be issued.
(a) rights in relation to air transport, however granted; or
(b) services directly related to the exercise of rights in relation to air transport, except as provided in paragraph 3 of this Article.
(a) aircraft repair and maintenance services; and
(b) computer reservation system services (CRS).
56
Provisions), or at any other time agreed between the Parties, with a view to including
these developments in this Agreement.
GATS, including the Annex on Air Transport Services.
ARTICLE 23
Recognition
57
ARTICLE 1
Definitions
(a) ìenterpriseî means any corporation, company, association, partnership, trust, joint venture, sole-proprietorship or other legally recognised entity that is duly incorporated, constituted, set up, or otherwise duly organised under the law of a Party, including branches, regardless of whether or not the entity is organised f