WT/REG361/3  
 
28 April 2016  
(16-2387)  Page: 1/3  
Committee on Regional Trade Agreements  Original: English  
 
ECONOMIC PARTNERSHIP AGREEMENT BETWEEN JAPAN AND AUSTRALIA  
(GOODS AND SERVICES) 
QUESTIONS AND REPLIES 
The following communication, dated 27 April 2016, is being circulated at the request of the 
delegations of Japan and Australia.  
 This document reproduces the follow-up questions addressed to the Parties following 
the 80th Session of the CRTA and the responses submitted. 
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Questions from the delegation of the European Union 
 
1.1.  With reference to the Australian reply on  customs ex officio action on IPR, the EU 
notes that this reply differs from the one pr ovided by Australia in the framework of its 
TPR last year. At the time, Australia explai ned that Australian customs can only act ex 
officio under certain, very restricted circum stances, and in most cases the right holder 
needs to submit notice (via the courts). Th e wording of the Agreement (Article 16.18.1 
"Each Party shall provide for procedures concer ning the suspension at the border by its 
customs administration, ex officio, of the rele ase of goods suspected of infringing rights 
to trade marks, or copyright or related rights") seems to be indicating something more 
comprehensive than simply "a false trade description." Therefore, we would ask 
Australia to further clarify this aspect. 
 Australia complies with the requirement und er Article 16.18.1 of the Agreement. The 
procedures in Australia provide for the suspension at the border of the release of goods suspected 
of infringing rights to trade marks, or copyright or related rights by Australian customs authorities (the Department of Immigration and Border Protec tion) pursuant to a Notice of Objection Scheme. 
Australia's Notice of Objection Scheme is the principle mechanism for the seizure of IP infringing 
goods (goods that are counterfeit or pirated) at the border. It is considered an effective method for protection of IP rights at the border. In circ umstances where there is no Notice of Objection in 
place, the Department of Immigration and Border Protection can always seize imports if there are 
consumer safety concerns and the goods are in contravention of another import control or 
regulation, such as the Customs (Prohibited Imports) Regulation 1956 .  
 
 Furthermore, ex officio action can be initiated by the Department of Immigration and Border 
Protection through provisions within the Commerce (Trade Descriptions) Act 1905  (CTDA) which 
prohibits the import of goods to which a false trade description has been applied. A false trade 
description can be any description of goods that is incorrect or misleading. This may include the 
application of a trade mark, or copyright, and includes all possible alterations of a trade description. If the goods are seized (ex-officio) under the CTDA, action is progressed as a customs matter and not under any intellectual property rights (copyright or trademark) legislation. The 
rights holder is not generally involved in the proc ess if goods are seized ex-officio under the CTDA.  
  T h e  s c o p e  o f  t h i s  A r t i c l e ,  i n  l i n e  w i t h  T R I P S ,  i s  l i m i t e d  t o  g o o d s  " s u s p e c t e d  o f  i n f r i n g i n g  
rights to trade marks, or copyright or related rights".  
  WT/REG361/3 
 
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  1.2.  With reference to the questions on investment/FDI screening, we understand 
Australia has implemented higher screening thresholds for private foreign investment 
from its FTA partners, including Japan and Ko rea, in sectors other than agriculture and 
agribusiness. We would encourage Australi a to at least harmonize the screening 
thresholds for investments coming from al l its FTA partners and possibly from all 
WTO Members. 
 Australia notes the comments from the delegation of the European Union. 
 
1.3.  With reference to the provisions on trade in services, the agreement provides 
enhanced certainty and transparency for each Party's services suppliers in relation to licensing requirements and other domestic re gulations. It also includes an annex on 
recognition of qualifications requiring each Party to set up one or more enquiry points, 
and supporting mutual recognition initiatives between professional services bodies in 
both countries. The EU would like to enquir e for which professions mutual recognition 
talks are being envisaged, on-going, or comple ted? The EU would also like to know if the 
enquiry points have been established yet, and,  if so, if these would also be accessible to 
services suppliers of non-Parties? 
 Japan and Australia are yet to decide upon wh ich professions will be the focus of potential 
mutual recognition initiatives, nor the enquiry points, as stipulated in Annex 8 of JAEPA.   Questions from the delegation of the United States 
 1.4.  Paragraph 4.8 of the Factual Presentation notes that the Parties have agreed to review and improve elements of the Agreement's investment chapter based on 
commitments undertake by Australia in other international agreements. 
 Could the Parties provide an update on the status of any such review? 
 
 The trigger for a review of the JAEPA Investme nt Chapter was met by the entry into force of 
the China-Australia FTA on 20 December 2015.  
 Japan and Australia commenced the review on 18 March 2016. Both sides have been 
conducting the review in Article 14.19, including in relation to the possible establishment of an 
Investment State Dispute Settlement mechanism, but no decisions have been made.  
 According to Article 14.19, Parties will conduct the review with the aim of concluding it 
within six months following the date of entry into force of the trigger agreement. 
1.5.  As regards services commitments, we commend the Parties for undertaking 
broad-ranging commitments across sectors on  a negative-list basis. We especially 
commend the small number of reservations both Parties have taken for future 
discriminatory measures. 
 The Factual Presentation does, however, note certain specific areas where both 
Parties have taken seemingly broad reservations, or reserv ations inconsistent with 
existing GATS commitments. 
 
 For example, the Presentation (para. 4.65) notes that Australia's commitments for distribution services are "GATS-minus," and suggests that the relevant measure is not 
listed as a limitation in GATS because of th e application of the GATS Art. 14 (General 
Exception).  
 Question for Australia – Does  this mean that an exception equivalent to GATS Art. 14 
does not apply to the services commitments in this RTA?   Article 14.15 ('General Exceptions') of JAEPA is equivalent to GATS Article 14, and applies to services commitments in JAEPA. The inclusion of Reservation 12 on distribution services was for 
the sole purpose of providing greater clarity about existing regulations, and does not represent an 
additional restriction. WT/REG361/3 
 
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  1.6.  The Factual Presentation also notes th at Japan has taken a reservation for future 
discriminatory measures in sectors "not reco gnized under the GATS at the time of its 
entry into force."  
 Question for Japan – could Japan please elaborate on the types of services it 
believes "are not recognized" as of 1995? Wh ere in the GATS does Japan find support 
for this "non-recognition."   
 The reservation that the US refers to in the Questions is set out in the Annex 7 of the JAEPA 
as below. This provision does not include such explanation as "not recognized under the GATS at the time of its entry into force", but stipulat es "other than those recognised owing to the 
circumstances at the time of entry into force of this Agreement". 
 
 To date, Japan has not enacted any laws and regulations by which it intends to regulate in a discriminatory manner the services other than those recognised at the time of entry into force of 
the JAEPA. 
 [Annex 7 Section 2 Sector 4] 
"All Sectors (Unrecognised or Technically Unfeasible Services)"  
Description: Trade in Services 1. Japan reserves the right to adopt or maintain any measure relating to services other than those 
recognised or other than those should have been recognised owing to the circumstances at the 
time of entry into force of this Agreement by th e Government of Japan. Any services classified 
positively and explicitly in JSIC or CPC, at the time of entry into force of this Agreement should have been recognised by the Government of Japan at that time. 
2. Japan reserves the right to adopt or maintain any measure relating to the supply of services in 
any mode of supply in which those services were not technically feasible at the time of entry into force of this Agreement. 
Note: This reservation does not apply to new financial services covered by Article 11.3 (Financial 
Services - New Financial Services).  
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