AGREEMENT ESTABLISHING THE ASEAN-AUSTRALIANEW ZEALAND FREE TRADE AREA

TABLE OF CONTENTS
Preamble
Chapter 1.

Establishment of Free Trade
Objectives and General Definitions

Chapter 2.

Trade in Goods

Chapter 3.

Rules of Origin
Annex
onProcedures

Operational

Area,

Certification

 Appendix
on
Minimum
Requirements – Application
Certificate of Origin

Data
for a

 Appendix
on
Minimum
Data
Requirements – Certificate of Origin
Chapter 4.

Customs Procedures

Chapter 5.

Sanitary and Phytosanitary Measures

Chapter 6.

Standards, Technical Regulations
Conformity Assessment Procedures

Chapter 7.

Safeguard Measures

Chapter 8.

Trade in Services

andAnnex on Financial Services
Annex on Telecommunications
 Appendix on Transitional Arrangements

Chapter 9.

Movement of Natural Persons

Chapter 10. Electronic Commerce
Chapter 11. Investment
Annex on Expropriation and Compensation
Chapter 12. Economic Co-operation
Chapter 13. Intellectual Property
Chapter 14. Competition
Chapter 15. General Provisions and Exceptions
Chapter 16. Institutional Provisions
Chapter 17. Consultations and Dispute Settlement
Annex on Rules of Procedure for Arbitral
Tribunal Proceedings
Annex on Optional ProceduresComposing Arbitral Tribunals

for

Chapter 18. Final Provisions
Annexes:
Annex 1.

Schedules of Tariff Commitments

Annex 2.

Product Specific Rules
Appendix on the Indicative List of Textile
Finishing Processes

Annex 3.

SchedulesofCommitments

Specific

ServicesAnnex 4.

Schedules of Movement of Natural Persons
Commitments

PREAMBLE
The Governments of Brunei Darussalam, the Kingdom of
Cambodia (Cambodia), the Republic of Indonesia(Indonesia), the Lao People’s Democratic Republic (Lao
PDR), Malaysia, the Union of Myanmar (Myanmar), theRepublic of the Philippines (Philippines), the Republic ofSingapore (Singapore), the Kingdom of Thailand (Thailand)
and the Socialist Republic of Viet Nam (Viet Nam),collectively, the Member States of the Association ofSoutheast Asian Nations, and Australia and New Zealand;
REINFORCING the longstanding ties of friendship and cooperation among them;
RECALLING the Framework for the AFTA-CER Closer
Economic Partnership endorsed by Ministers in Ha Noi, Viet
Nam on 16 September 2001;
DESIRING to minimise barriers and deepen and widen
economic linkages among the Parties; lower business costs;
increase trade and investment; enhance economic efficiency;
create a larger market with more opportunities and greater
economies of scale for business;
CONFIDENT that this Agreement establishing an ASEANAustralia-New Zealand Free Trade Area will strengthen
economic partnerships, serve as an important building block
towards regional economic integration and support
sustainable economic development;
RECOGNISING the important role and contribution ofbusiness in enhancing trade and investment among theParties and the need to further promote and facilitate cooperation and utilisation of the greater business opportunities
provided by this Agreement;

CONSIDERING the different levels of development among
ASEAN Member States and between ASEAN Member
States, Australia and New Zealand and the need for flexibility,
including special and differential treatment, especially for the
newer ASEAN Member States; as well as the need tofacilitate the increasing participation of newer ASEAN
Member States in this Agreement and the expansion of theirexports, including, inter alia, through strengthening of theirdomestic capacity, efficiency and competitiveness;
REAFFIRMING the respective rights and obligations andundertakings of the Parties under the World Trade
Organization Agreement and other existing international
agreements and arrangements;
RECOGNISING the positive momentum that regional trade
agreements and arrangements can have in accelerating
regional and global trade liberalisation, and their role asbuilding blocks for the multilateral trading system;
HAVE AGREED AS FOLLOWS:

2

CHAPTER 1ESTABLISHMENT OF FREE TRADE AREA, OBJECTIVESAND GENERAL DEFINITIONSArticle 1
Objectives
The objectives of this Agreement are to:(a)progressively liberalise and facilitate trade ingoods among the Parties through, inter alia,
progressive elimination of tariff and non-tariffbarriers in substantially all trade in goods among
the Parties;(b)

progressively liberalise trade in services among
the Parties, with substantial sectoral coverage;(c)facilitate, promote and enhance investment
opportunities among the Parties through further
developmentoffavourable
investment
environments;(d)establishaco-operative
frameworkforstrengthening, diversifying and enhancing trade,investment and economic links among theParties; and(e)provide special and differential treatment to
ASEAN Member States, especially to the newer
ASEAN Member States, to facilitate their more
effective economic integration.

3

Article 2
Establishment of the ASEAN-Australia-New ZealandFree Trade Area
The Parties hereby establish, consistent with Article XXIV ofGATT 1994 and Article V of GATS, an ASEAN, Australia and
New Zealand Free Trade Area.
Article 3
General Definitions
For the purposes of this Agreement, unless the context
otherwise requires:(a)

AANZFTA means the ASEAN-Australia-New
Zealand Free Trade Area;(b)

Agreement means the Agreement Establishing
the ASEAN-Australia-New Zealand Free Trade
Area;

(c)

Agreement on Customs Valuation means theAgreement on Implementation of Article VII of theGeneral Agreement on Tariffs and Trade 1994 in
Annex 1A to the WTO Agreement;(d)

ASEAN means the Association of Southeast
Asian Nations which comprises of Brunei
Darussalam, the Kingdom of Cambodia, theRepublic of Indonesia, the Lao People's
Democratic Republic, Malaysia, the Union of
Myanmar, the Republic of the Philippines, theRepublic of Singapore, the Kingdom of Thailand
and the Socialist Republic of Viet Nam andwhose members are referred to in thisAgreement collectively as the ASEAN Member
States and individually as an ASEAN Member
State;

4(e)customs duties means any customs or importduty and a charge of any kind, including any tax
or surcharge, imposed in connection with theimportation of a good, but does not include any:(i)charge equivalent to an internal tax
imposed consistently with the provisions ofparagraph 2 of Article III of GATT 1994, in
respect of the like domestic product or in
respect of an article from which theimported product has been manufactured
or produced in whole or in part;(ii)

anti-dumping or countervailing duty appliedconsistently with the provisions of Article VI
of GATT 1994, the Agreement on
Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994, as
may be amended and the Agreement on
Subsidies and Countervailing Measures inAnnex 1A to the WTO Agreement, as may
be amended; or(iii)

fee or any charge commensurate with thecost of services rendered;(f)days means calendar days, including weekends
and holidays;(g)

FTA Joint Committee means the ASEAN,
Australia and New Zealand FTA Joint Committee
established pursuant to Article 1 (FTA Joint
Committee) of Chapter 16 (Institutional
Provisions);(h)

GATS means the General Agreement on Trade inServices in Annex 1B to the WTO Agreement;

5

(i)

GATT 1994 means the General Agreement on
Tariffs and Trade 1994 in Annex 1A to the WTO
Agreement;(j)

HS Code means the Harmonized Commodity
Description and Coding System established by
the International Convention on the Harmonized
Description and Coding System signed at
Brussels on 14 June 1983, as amended;(k)

IMF Articles of Agreement means the Articles
of Agreement of the International Monetary Fund;(l)newer ASEAN Member States means theKingdom of Cambodia, the Lao People's
Democratic Republic, the Union of Myanmar andthe Socialist Republic of Viet Nam;(m)originating good means a good that qualifies as
originating under Chapter 3 (Rules of Origin);(n)Parties means the ASEAN Member States,
Australia and New Zealand collectively;(o)Party means an ASEAN Member State orAustralia or New Zealand;(p)

TRIPS Agreement means the Agreement on
Trade-Related Aspects of Intellectual Property
Rights, in Annex 1C to the WTO Agreement;(q)

WTO means the World Trade Organization; and(r)

WTO Agreement means the Marrakesh
Agreement Establishing the World Trade
Organization, done on 15 April 1994.

6

CHAPTER 2
TRADE IN GOODS
Article 1
Reduction and/or Elimination of Customs Duties
Except as otherwise provided in this Agreement, each Party
shall progressively reduce and/or eliminate customs duties
on originating goods of the other Parties in accordance with
its schedule of tariff commitments in Annex 1 (Schedules ofTariff Commitments).
Article 2
Acceleration of Tariff Commitments
1.
Nothing in this Agreement shall preclude all Parties
from negotiating and entering into arrangements toaccelerate and/or improve tariff commitments made under
this Agreement. An agreement among all Parties toaccelerate and/or improve tariff commitments shall beincorporated into this Agreement, in accordance with Article
6 (Amendments) of Chapter 18 (Final Provisions). Suchacceleration and/or improvement of tariff commitments shallbe implemented by all the Parties.
2.
Two or more Parties may also consult to consider
accelerating and/or improving tariff commitments set out intheir schedules of tariff commitments in Annex 1 (Schedulesof Tariff Commitments). An agreement between these
Parties to accelerate and/or improve their respective tariffcommitments under this Agreement shall be incorporated
into this Agreement, in accordance with Article 6(Amendments) of Chapter 18 (Final Provisions). Tariff
concessions arising from such acceleration and/or
improvement of tariff commitments shall be extended to all
Parties.

7

3.
A Party may, at any time, unilaterally accelerate thereduction and/or elimination of customs duties on originating
goods of the other Parties set out in its schedule of tariffcommitments in Annex 1 (Schedules of Tariff Commitments).
A Party intending to do so shall inform the other Parties
before the new rate of customs duties takes effect, or in any
event, as early as practicable.
Article 3
Elimination of Agricultural Export Subsidies
Consistent with their rights and obligations under the WTO
Agreement, each Party agrees to eliminate and not
reintroduce all forms of export subsidies for agricultural
goods destined for the other Parties.
Article 4
National Treatment on Internal Taxation and Regulation
Each Party shall accord national treatment to the goods ofthe other Parties in accordance with Article III of GATT 1994.
To this end, Article III of GATT 1994 shall be incorporated
into and shall form part of this Agreement, mutatis mutandis.
Article 5
Fees and Charges Connected with Importation andExportation
1.
Each Party shall ensure that fees and charges
connected with importation and exportation shall beconsistent with its rights and obligations under GATT 1994.
2.
Each Party shall make available details of the fees andcharges that it imposes in connection with importation andexportation and, to the extent possible and in accordancewith its domestic laws and regulations, make suchinformation available on the internet.

8

3.
A Party may not require consular transactions,
including related fees and charges, in connection with theimportation of any good of any other Party.
Article 6
Publication and Administration of Trade Regulations
1.
Article X of GATT 1994 shall be incorporated into andshall form part of this Agreement, mutatis mutandis.
2.
In accordance with its domestic laws and regulations
and to the extent possible, each Party shall make laws,
regulations, decisions and rulings of the kind referred to in
Paragraph 1 available on the internet.
Article 7
Quantitative Restrictions and Non-Tariff Measures
1.
No Party shall adopt or maintain any prohibition orquantitative restriction on the importation of any good of any
other Party or on the exportation of any good destined for the
territory of any other Party, except in accordance with its
WTO rights and obligations or this Agreement. To this end,
Article XI of GATT 1994 shall be incorporated into and shallform part of this Agreement, mutatis mutandis.
2.
Except as otherwise provided in this Agreement, aParty shall not adopt or maintain any non-tariff measure on
the importation of any good of any other Party or on theexportation of any good destined for the territory of any otherParty, except in accordance with its WTO rights andobligations or in accordance with this Agreement.
3.
Each Party shall ensure the transparency of its nontariff measures permitted under Paragraph 2 and shallensure that any such measures are not prepared, adopted orapplied with the view to or with the effect of creating
unnecessary obstacles to trade among the Parties.

9

4.
The Goods Committee established pursuant to Article
11 (Committee on Trade in Goods) shall review non-tariffmeasures covered by this Chapter with a view to considering
the scope for additional means to enhance the facilitation of
trade in goods between the Parties. The Goods Committee
shall submit to the FTA Joint Committee an initial report on
progress in its work, including any recommendations, within
two years of entry into force of this Agreement. Any Party
may nominate measures for consideration by the Goods
Committee.
Article 8
Import Licensing
1.
Each Party shall ensure that all automatic and nonautomatic import licensing measures are implemented in atransparent and predictable manner, and applied inaccordance with the Agreement on Import Licensing
Procedures in Annex 1A to the WTO Agreement.
2.
Each Party shall promptly notify the other Parties ofexisting import licensing procedures. Thereafter, each Party
shall notify the other Parties of any new import licensing
procedures and any modification to its existing importlicensing procedures, to the extent possible 60 days before it
takes effect, but in any case no later than within 60 days of
publication. The information in any notification under this
Article shall be in accordance with Article 5.2 and 5.3 of theAgreement on Import Licensing Procedures in Annex 1A to
the WTO Agreement.
3.
Upon request of another Party, a Party shall, promptly
and to the extent possible, respond to the request of that
Party for information on import licensing requirements ofgeneral application.

10Article 9
Modification of Concessions
In exceptional circumstances where a Party faces
unforeseen difficulties in implementing its tariff commitments,that Party may, with the agreement of all other interested
Parties, modify or withdraw a concession contained in its
schedule of tariff commitments in Annex 1 (Schedules ofTariff Commitments). In order to seek to reach suchagreement, the relevant Party shall engage in negotiations
with any interested Parties. In such negotiations, the Party
proposing to modify or withdraw its concessions shallmaintain a level of reciprocal and mutually advantageousconcessions no less favourable to the trade of all otherinterested Parties than that provided for in this Agreement
prior to such negotiations, which may include compensatory
adjustments with respect to other goods. The mutuallyagreed outcome of the negotiations, including any
compensatory adjustments, shall apply to all the Parties andshall be incorporated into this Agreement in accordance with
Article 6 (Amendments) of Chapter 18 (Final Provisions).
Article 10
Contact Points and Consultations
1.
Each Party shall designate a contact point to facilitatecommunication among the Parties on any matter relating tothis Chapter.
2.
Where a Party considers that any proposed or actual
measure of another Party or Parties may materially affecttrade in goods between the Parties, that Party may, throughthe contact point, request detailed information relating to thatmeasure and, if necessary, request consultations with a viewto resolving any concerns about the measure. The otherParty or Parties shall respond promptly to such requests for
information and consultations.

11Article 11
Committee on Trade in Goods
1.
The Parties hereby establish a Committee on Trade inGoods (Goods Committee) consisting of representatives of
the Parties. The Goods Committee may meet at the requestof any Party or the FTA Joint Committee to consider any
matter arising under this Chapter, or under:

2.

(a)

Chapter 3 (Rules of Origin);(b)

Chapter 4 (Customs Procedures);(c)

Chapter5
Measures);(d)

Chapter 6 (Standards, Technical Regulations andConformity Assessment Procedures); and(e)

Chapter 7 (Safeguard Measures).

(SanitaryandPhytosanitary

The functions of the Goods Committee shall include:(a)reviewing implementation of, and measurestaken pursuant to, the Chapters referred to in
Paragraph 1;(b)receiving reports from, and reviewing the work of:(i)the ROO Sub-Committee establishedpursuant to Article 18 (Sub-Committee on
Rules of Origin) of Chapter 3 (Rules ofOrigin);(ii)

the SPS Sub-Committee establishedpursuant to Article 10 (Meetings Among theParties on Sanitary and Phytosanitary
Matters) of Chapter 5 (Sanitary andPhytosanitary Measures); and12

(iii)

the STRACAP Sub-Committee establishedpursuant to Article 13 (Sub-Committee onStandards, Technical Regulations andConformity Assessment Procedures) ofChapter
6(Standards,
Technical
Regulations and Conformity Assessment
Procedures);(c)

implementing the work programme provided forin Article 7.4 (Quantitative Restrictions and NonTariff Measures);(d)identifying and recommending measures topromote and facilitate improved market access,including any acceleration of tariff commitments
under Article 2.1 (Acceleration of Tariff
Commitments); and(e)reporting, as
Committee.

required,

to

the

FTA

Joint

3.
The Goods Committee may agree to establish
subsidiary working groups or refer issues for consideration to
the ROO Sub-Committee established pursuant to Article 18(Sub-Committee on Rules of Origin) of Chapter 3 (Rules ofOrigin).
4.
The meetings of the Goods Committee may occur inperson, or by any other means as mutually determined by
the Parties.
Article 12
Application
Each Party shall take such reasonable measures as may beavailable to it to ensure observance of the provisions of this
Chapter by the regional and local governments andauthorities within its territories.

13

CHAPTER 3
RULES OF ORIGIN
Article 1
Definitions
For the purposes of this Chapter:(a)aquaculture means the farming of aquaticorganisms including fish, molluscs, crustaceans,other aquatic invertebrates and aquatic plants,from seedstock such as eggs, fry, fingerlings andlarvae, by intervention in the rearing or growth
processes to enhance production such as regular
stocking, feeding, or protection from predators;(b)back-to-back Certificate of Origin means a
Certificate of Origin issued by an intermediate
exporting Party’s Issuing Authority/Body basedon the Certificate of Origin issued by the firstexporting Party;(c)

CIF means the value of the good imported andincludes the cost of freight and insurance up to
the port or place of entry into the country ofimportation. The valuation shall be made inaccordance with Article VII of GATT 1994 and theAgreement on Customs Valuation;(d)

FOB means the free-on-board value of the good,inclusive of the cost of transport to the port or siteof final shipment abroad. The valuation shall bemade in accordance with Article VII of GATT1994 and the Agreement on Customs Valuation;(e)generally accepted accounting principles
means the recognised consensus or substantial

14authoritative support in a Party, with respect tothe 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;(f)good means any merchandise, product, article ormaterial;(g)

identical and interchangeable materialsmeans materials that are fungible as a result of
being of the same kind and commercial quality,
possessing the same technical and physicalcharacteristics, and which once they areincorporated into the finished product cannot be
distinguished from one another for origin
purposes by virtue of any markings or merevisual examination;(h)indirect material means a good used in the
production, testing, or inspection of a good but
not physically incorporated into the good, or agood used in the maintenance of buildings or theoperation of equipment associated with the
production of a good, including:(i)

fuel and energy;(ii)

tools, dies and moulds;(iii)

spare parts and materials used in themaintenance of equipment and buildings;(iv)

lubricants, greases, compounding materials
and other materials used in production orused to operate equipment and buildings;

15

(v)

gloves, glasses, footwear, clothing, safety
equipment and supplies;(vi)

equipment, devices and supplies used fortesting or inspecting goods;(vii) catalysts and solvents; and(viii) any other goods that are not incorporated
into the good but whose use in the
production of the good can reasonably bedemonstrated to be a part of that
production;(i)material means any matter or substance used or
consumed in the production of goods orphysically incorporated into a good or subjected
to a process in the production of another good;(j)non-originating good or non-originating
material means a good or material that does not
qualify as originating under this Chapter;(k)

originating material means a material that
qualifies as originating under this Chapter;(l)

producer means a person who grows, mines,
raises, harvests, fishes, traps, hunts, farms,
captures, gathers, collects, breeds, extracts,
manufactures, processes or assembles a good;(m)production means methods of obtaining goods
including growing, mining, harvesting, farming,raising, breeding, extracting, gathering, collecting,capturing,fishing,trapping,
hunting,
manufacturing,producing,processingorassembling a good;

16

(n)

Product Specific Rules are rules in Annex 2(Product Specific Rules) that specify that thematerials used to produce a good haveundergone a change in tariff classification or a
specific manufacturing or processing operation,or satisfy a regional value content criterion or a
combination of any of these criteria; and(o)packing materials and containers fortransportation means goods used to protect agood during its transportation, different fromthose containers or materials used for its retail
sale.
Article 2
Originating Goods

1.
For the purposes of this Chapter, a good shall betreated as an originating good if it is either:(a)wholly produced or obtained in a Party as
provided in Article 3 (Goods Wholly Produced or
Obtained);(b)

not wholly produced or obtained in a Party
provided that the good has satisfied therequirements of Article 4 (Goods Not Wholly
Produced or Obtained); or(c)

produced in a Party exclusively from originating
materials from one or more of the Parties,

and meets all other applicable requirements of this Chapter.
2.
A good which complies with the origin requirements of
Paragraph 1 will retain its eligibility for preferential tariff
treatment if exported to a Party and subsequently reexported to another Party.

17

Article 3
Goods Wholly Produced or Obtained
For the purposes of Article 2.1(a) (Originating Goods), thefollowing goods shall be considered as wholly produced or
obtained:(a)plants and plant goods, including fruit, flowers,
vegetables, trees, seaweed, fungi and live plants,
grown, harvested, picked, or gathered in a Party1;(b)

live animals born and raised in a Party;(c)goods obtained from live animals in a Party;(d)goods obtained from hunting, trapping, fishing,farming, aquaculture, gathering, or capturing in a
Party;(e)minerals
andothernaturallyoccurring
substances extracted or taken from the soil,
waters, seabed or beneath the seabed in a Party;(f)goods of sea-fishing and other marine goods
taken from the high seas, in accordance withinternational law 2 , by any vessel registered orrecorded with a Party and entitled to fly the flag ofthat Party;

1

For the purposes of this Article, “in a Party” means the land, territorial sea,
Exclusive Economic Zone, Continental Shelf over which a Party exercises
sovereignty, sovereign rights or jurisdiction, as the case may be, in accordance withinternational law.
For the avoidance of doubt, nothing contained in the above definition shall be
construed as conferring recognition or acceptance by one Party of the outstanding
maritime and territorial claims made by any other Party, nor shall be taken as prejudging the determination of such claims.

2“International law” refers to generally accepted international law such as the United
Nations Convention on the Law of the Sea.

18

(g)

goods produced on board any factory ship
registered or recorded with a Party and entitled to
fly the flag of that Party from the goods referred
to in Subparagraph (f);(h)

goods taken by a Party, or a person of a Party,
from the seabed or beneath the seabed beyond
the Exclusive Economic Zone and adjacentContinental Shelf of that Party and beyond areas
over which third parties exercise jurisdiction
under exploitation rights granted in accordancewith international law3;(i)goods which are:

(j)

(i)

waste and scrap derived from production
and consumption in a Party provided thatsuch goods are fit only for the recovery of
raw materials; or(ii)

used goods collected in a Party provided
that such goods are fit only for the recoveryof raw materials; andgoods produced or obtained in a Party solely
from products referred to in Subparagraphs (a) to(i) or from their derivatives.
Article 4Goods Not Wholly Produced or Obtained1.
For the purposes of Article 2.1(b) (Originating Goods),
except for those goods covered under Paragraph 2, a goodshall be treated as an originating good if:(a)the good has a regional value content of not lessthan 40 per cent of FOB calculated using the3“International law” refers to generally accepted international law such as the United
Nations Convention on the Law of the Sea.

19

formulae as described in Article 5 (Calculation ofRegional Value Content), and the final process of
production is performed within a Party; or(b)

all non-originating materials used in the
production of the good have undergone a change
in tariff classification at the four-digit level (i.e. achange in tariff heading) of the HS Code in a
Party.

2.
In accordance with Paragraph 1, a good subject to
Product Specific Rules shall be treated as an originating
good if it meets those Product Specific Rules.
3.
For a good not specified in Annex 2 (Product Specific
Rules), a Party shall permit the producer or exporter of thegood to decide whether to use Paragraph 1(a) or (b) when
determining if the good is originating.
4.
If a good is specified in Annex 2 (Product Specific
Rules) and the relevant provisions of that Annex provide a
choice of rule between a regional value content based rule oforigin, a change in tariff classification based rule of origin, a
specific process of production, or a combination of any ofthese, a Party shall permit the producer or exporter of thegood to decide which rule to use in determining if the good is
originating.
Article 5
Calculation of Regional Value Content
1.
For the purposes of Article 4 (Goods Not Wholly
Produced or Obtained), the formula for calculating theregional value content will be either:

20

(a)

Direct Formula

AANZFTALabour
Other
Material
Overhead
Profit ++ Cost ++Costs x 100%
Cost
Cost
FOB
or
(b)

Indirect/Build-Down Formula

FOB-

Value of NonOriginating Materials
FOB

x 100 %

where:(a)

AANZFTA Material Cost is the value oforiginating materials, parts or produce that are
acquired or self-produced by the producer in the
production of the good;(b)

Labour Cost includes wages, remuneration andother employee benefits;(c)Overhead Cost is the total overhead expense;(d)Other Costs are the costs incurred in placing thegood in the ship or other means of transport forexport including, but not limited to, domestictransport costs, storage and warehousing, port
handling, brokerage fees and service charges;(e)

FOB is the free-on-board value of the goods as
defined in Article 1 (Definitions); and

21

(f)

Value of Non-Originating Materials is the CIF
value at the time of importation or the earliest
ascertained price paid for all non-originating
materials, parts or produce that are acquired by
the producer in the production of the good. Nonoriginating materials include materials of
undetermined origin but do not include a material
that is self-produced.

2.
The value of goods under this Chapter shall be
determined in accordance with Article VII of GATT 1994 andthe Agreement on Customs Valuation.
Article 6
Cumulative Rules of Origin
For the purposes of Article 2 (Originating Goods), a goodwhich complies with the origin requirements provided therein
and which is used in another Party as a material in the
production of another good shall be considered to originate
in the Party where working or processing of the finished good
has taken place.
Article 7
Minimal Operations and Processes
Where a claim for origin is based solely on a regional value
content, the operations or processes listed below,
undertaken by themselves or in combination with each other,
are considered to be minimal and shall not be taken into
account in determining whether or not a good is originating:(a)ensuring preservation of goods in good condition
for the purposes of transport or storage;(b)facilitating shipment or transportation;

22

(c)

packaging4 or presenting goods for transportationor sale;(d)

simpleprocesses,
consistingofsifting,classifying, washing, cutting, slitting, bending,coiling and uncoiling and other similar operations;(e)affixing of marks,
distinguishing signs
packaging; and(f)mere dilution with water or another substancethat does not materially alter the characteristicsof the goods.

labels or other likeon products or their

Article 8
De Minimis
1.
A good that does not satisfy a change in tariffclassification requirement pursuant to Article 4 (Goods Not
Wholly Produced or Obtained) will nonetheless be an
originating good if:
(a)

(i)

for a good, other than that provided for in
Chapters 50 to 63 of the HS Code, thevalue of all non-originating materials usedin the production of the good that did notundergo the required change in tariffclassification does not exceed 10 per centof the FOB value of the good;(ii)

for a good provided for in Chapters 50 to 63of the HS Code, the weight of all nonoriginating materials used in its productionthat did not undergo the required change intariff classification does not exceed 10 per
cent of the total weight of the good, or the4This excludes encapsulation which is termed “packaging” by the electronics
industry.

23

value of all non-originating materials usedin the production of the good that did notundergo the required change in tariffclassification does not exceed 10 per centof the FOB value of the good; and(b)

the good meets all other applicable criteria of this
Chapter.

2.
The value of such materials shall, however, be
included in the value of non-originating materials for any
applicable regional value content requirement.
Article 9
Accessories, Spare Parts and Tools
1.
For the purposes of determining the origin of a good,accessories, spare parts, tools and instructional or otherinformation materials presented with the good shall beconsidered part of that good and shall be disregarded indetermining whether all the non-originating materials used in
the production of the originating good have undergone theapplicable change in tariff classification, provided that:(a)the accessories, spare parts, tools andinstructional or other information materials
presented with the good are not invoiced
separately from the originating good; and(b)the quantities and value of the accessories, spareparts, tools and instructional or other informationmaterials presented with the good are customary
for that good.

2.
Notwithstanding Paragraph 1, if the good is subject to aregional value content requirement, the value of theaccessories, spare parts, tools and instructional or otherinformation materials presented with the good shall be taken
into account as originating or non-originating materials, as

24

the case may be, in calculating the regional value content of
the good.
3.
Paragraphs 1 and 2 do not apply where accessories,
spare parts, tools and instructional or other informationmaterials presented with the good have been added solely
for the purpose of artificially raising the regional value
content of that good, provided it is proven subsequently by
the importing Party that they are not sold therewith.
Article 10
Identical and Interchangeable Materials
The determination of whether identical and interchangeable
materials are originating materials shall be made either byphysical segregation of each of the materials or by the use ofgenerally accepted accounting principles of stock control
applicable, or inventory management practice, in theexporting Party.
Article 11
Treatment of Packing Materials and Containers
1.
Packing materials and containers for transportation andshipment of a good shall not be taken into account indetermining the origin of any good.
2.
Packing materials and containers in which a good ispackaged for retail sale, when classified together with that
good, shall not be taken into account in determining whether
all of the non-originating materials used in the production of
the good have met the applicable change in tariffclassification requirements for the good.

25

3.
If a good is subject to a regional value content
requirement, the value of the packing materials andcontainers in which the good is packaged for retail sale shallbe taken into account as originating or non-originating
materials, as the case may be, in calculating the regional
value content of the good.
Article 12
Indirect Materials
An indirect material shall be treated as an originating
material without regard to where it is produced and its value
shall be the cost registered in the accounting records of the
producer of the good.
Article 13
Recording of Costs
For the purposes of this Chapter, all costs shall be recorded
and maintained in accordance with the generally accepted
accounting principles applicable in the Party in which thegoods are produced.
Article 14
Direct Consignment
A good will retain its originating status as determined under
Article 2 (Originating Goods) if the following conditions havebeen met:(a)the good has been transported to the importing
Party without passing through any non-Party; or(b)

the good has transited through a non-Party,
provided that:(i)the good has not undergone subsequent
production or any other operation outside
the territories of the Parties other than26

unloading, reloading, storing, or any otheroperations necessary to preserve them ingood condition or to transport them to theimporting Party;(ii)

the good has not entered the commerce ofa non-Party; and(iii)

the transit entry is justified for geographical,
economic or logistical reasons.
Article 15
Certificate of Origin

A claim that goods are eligible for preferential tariff treatment
shall be supported by a Certificate of Origin issued by an
Issuing Authority/Body notified to the other Parties as set out
in this Chapter’s Annex on Operational Certification
Procedures.
Article 16
Denial of Preferential Tariff Treatment
The Customs Authority of the importing Party may deny aclaim for preferential tariff treatment when:(a)the good does not qualify as an originating good;or(b)

the importer, exporter or producer fails to comply
with any of the relevant requirements of this
Chapter.
Article 17
Review and Appeal

The importing Party shall grant the right of appeal in mattersrelating to the eligibility for preferential tariff treatment toproducers, exporters or importers of goods traded or to be27

traded between the Parties, in accordance with its domestic
laws, regulations and administrative practices.
Article 18
Sub-Committee on Rules of Origin
1.
For the purpose of the effective and uniform
implementation of this Chapter, the Parties hereby establish
a Sub-Committee on Rules of Origin (ROO Sub-Committee).
The functions of the ROO Sub-Committee shall include:(a)monitoringoftheimplementation
administration of this Chapter;

and

(b)

discussion of any issue that may have arisen in
the course of implementation, including any
matters that may have been referred to the ROO
Sub-Committee by the Goods Committee
established pursuant to Article 11 (Committee on
Trade in Goods) of Chapter 2 (Trade in Goods)
or the FTA Joint Committee;(c)discussion of any proposed modifications of therules of origin under this Chapter; and(d)consultation on issues relating to rules of origin
and administrative co-operation.

2.
The
ROO
Sub-Committee
shallconsistofrepresentatives of the Parties. It shall meet from time to time
as mutually determined by the Parties.
3.
The ROO Sub-Committee shall commence a review of
Article 6 (Cumulative Rules of Origin) no earlier than 12
months, and no later than 18 months following entry into
force of this Agreement. This review will consider theextension of the application of cumulation to all value added
to a good within AANZFTA. The ROO Sub-Committee shallsubmit to the Goods Committee established pursuant to28

Article 11 (Committee on Trade in Goods) of Chapter 2(Trade in Goods) a final report, including any
recommendations, within three years of entry into force of
this Agreement.
4.
The ROO Sub-Committee shall commence a review of
the application of the chemical reaction rule and otherchemical process rules to Chapters 28 to 40 of the HS Codeand other Product Specific Rules identified by Parties, noearlier than 12 months and no later than 18 months,
following entry into force of this Agreement. The ROO SubCommittee shall submit to the Goods Committee establishedpursuant to Article 11 (Committee on Trade in Goods ) of
Chapter 2 (Trade in Goods) a final report, including any
recommendations, within three years of entry into force of
this Agreement.
Article 19
Consultations, Review and Modification
1.
The Parties shall consult regularly to ensure that this
Chapter is administered effectively, uniformly andconsistently in order to achieve the spirit and objectives ofthis Agreement.
2.
This Chapter may be reviewed and modified inaccordance with Article 6 (Amendments) of Chapter 18 (Final
Provisions) as and when necessary, upon request of a Party,
and subject to the agreement of the Parties, and may be
open to such reviews and modifications as may be agreed
upon by the FTA Joint Committee.

29

ANNEX ON OPERATIONAL CERTIFICATIONPROCEDURES
For the purpose of implementing Chapter 3 (Rules of Origin),
the following operational procedures on the issuance andverification of Certificates of Origin and other related
administrative matters shall be observed by each Party.
AUTHORITIESRule 1The Certificate of Origin shall be issued by an Issuing
Authority/Body of the exporting Party. Details of the Issuing
Authorities/Bodies shall be notified by each Party, throughthe ASEAN Secretariat, prior to the entry into force of thisAgreement. Any subsequent changes shall be promptly
notified by each Party, through the ASEAN Secretariat.
Rule 2
1. The Issuing Authorities/Bodies shall provide the names,
addresses, specimen signatures and specimens of theimpressions of official seals of their respective Issuing
Authorities/Bodies to the other Parties, through the ASEAN
Secretariat. The Issuing Authorities/Bodies shall submit
electronically to the ASEAN Secretariat the above
information and specimens for dissemination to the otherParties. Any subsequent changes shall be promptly notified
through the ASEAN Secretariat.
2.
Any Certificate of Origin issued by a person notincluded in the list may not be honoured by the Customs
Authority of the importing Party.

30

Rule 3For the purpose of determining originating status, the Issuing
Authorities/Bodies shall have the right to call for supporting
documentary evidence and/or other relevant information tocarry out any check considered appropriate in accordancewith respective domestic laws, regulations and administrative
practices.
APPLICATIONSRule 4
1.
The manufacturer, producer, or exporter of the good or
its authorised representative shall apply in writing or byelectronic means to an Issuing Authority/Body, in accordancewith the exporting Party’s domestic laws, regulations and theIssuing Authority’s/Body’s procedures, requesting a preexportation examination of the origin of the good to beexported.
2.
The result of the examination, subject to review
periodically or whenever appropriate, shall be accepted as
the supporting evidence in issuing a Certificate of Origin for
the good to be exported thereafter.
3.
Pre-exportation examination need not apply to a goodfor which, by its nature, origin can be easily determined.
Rule 5The manufacturer, producer, or exporter of the good or its
authorised representative shall apply for the Certificate ofOrigin by providing appropriate supporting documents andother relevant information, proving that the good to beexported qualifies as originating.

31

PRE-EXPORTATION EXAMINATION
Rule 6The Issuing Authority/Body shall, to the best of its
competence and ability, carry out proper examination, in
accordance with the domestic laws and regulations of theexporting Party or the procedures of the Issuing
Authority/Body, upon each application for the Certificate ofOrigin to ensure that:(i)the application and the Certificate of Origin are
duly completed and signed by the authorised
signatory;(ii)

the good is an originating good in accordancewith Article 2 (Originating Goods) of Chapter 3(Rules of Origin);(iii)

other statements in the Certificate of Origin
correspond to appropriate supporting documents
and other relevant information; and(iv)

information to meet the minimum datarequirements listed in this Annex’s Appendix 1(Minimum Data Requirements – Application for a
Certificate of Origin) is provided for the goods
being exported.

ISSUANCE OF CERTIFICATE OF ORIGIN
Rule 7
1.
The format of the Certificate of Origin is to be
determined by the Parties and it must contain the minimum
data requirements listed in this Annex’s Appendix 2(Minimum Data Requirements – Certificate of Origin).

32

2.
The Certificate of Origin shall comprise one original
and two copies.
3.

The Certificate of Origin shall:(i)be in hardcopy;(ii)bear a unique reference number separately
given by each place or office of issuance;(iii)

be in the English language; and(iv)bear an authorised signature and official seal of
the Issuing Authority/Body. The signature andofficial seal may be applied electronically.

4.
The original Certificate of Origin shall be forwarded by
the exporter to the importer for submission to the Customs
Authority of the importing Party. Copies shall be retained by
the Issuing Authority/Body and the exporter.
5.
Multiple goods declared on the same Certificate ofOrigin shall be allowed, provided that each good is
originating in its own right.
Rule 8
To implement Article 2 (Originating Goods) of Chapter 3(Rules of Origin), the Certificate of Origin issued by theIssuing Authority/Body shall specify the relevant origin
conferring criteria.
Rule 9Neither erasures nor superimpositions shall be allowed on
the Certificate of Origin. Any alteration shall be made by
striking out the erroneous material and making any addition
required. Such alterations shall be approved by a person
authorised to sign the Certificate of Origin and certified by33

the appropriate Issuing Authority/Body. Unused spaces shallbe crossed out to prevent any subsequent addition.
Rule 10
1.
The Certificate of Origin shall be issued as near as
possible to, but no later than three working days after, thedate of exportation.
2.
Where a Certificate of Origin has not been issued asprovided for in Paragraph 1 due to involuntary errors oromissions or other valid causes, the Certificate of Origin may
be issued retroactively, but no longer than 12 months fromthe date of exportation, bearing the words “ISSUEDRETROACTIVELY”.
3.
An Issuing Authority/Body of an intermediate Party
shall issue a back-to-back Certificate of Origin, if anapplication is made by the exporter while the good is passing
through that intermediate Party, provided that:(i)a valid original Certificate of Origin or its certified
true copy is presented;(ii)

the period of validity of the back-to-backCertificate of Origin does not exceed the periodof validity of the original Certificate of Origin;(iii)

the consignment which is to be re-exported using
the back-to-back Certificate of Origin does notundergo any further processing in theintermediate Party, except for repacking or
logistics activities such as unloading, reloading,storing, or any other operations necessary topreserve them in good condition or to transportthem to the importing Party;(iv)

the back-to-back Certificate of Origin contains
relevant information from the original Certificate

34

of Origin in accordance with the minimum datarequirements in this Annex’s Appendix 2(Minimum Data Requirements – Certificate ofOrigin). The FOB value shall be the FOB value ofthe goods exported from the intermediate Party;
and(v)

the verification procedures in Rule 17 and Rule
18 shall also apply to the back-to-back Certificateof Origin.
Rule 11In the event of theft, loss or destruction of a Certificate ofOrigin, the manufacturer, producer, exporter or its authorised
representative may apply to the Issuing Authority/Body for acertified true copy of the original Certificate of Origin. The
copy shall be made on the basis of the export documents intheir possession and bear the words “CERTIFIED TRUE
COPY”. This copy shall bear the date of issuance of theoriginal Certificate of Origin. The certified true copy of a
Certificate of Origin shall be issued no longer than 12 months
from the date of issuance of the original Certificate of Origin.
PRESENTATION
Rule 121.
For the purpose of claiming preferential tariff treatment,
the importer shall submit to the Customs Authority at the timeof import declaration the Certificate of Origin and otherdocuments as required, in accordance with the procedures of
the Customs Authority or domestic laws and regulations of
the importing Party.
2.
Notwithstanding Paragraph 1, a Party may elect not torequire the submission of the Certificate of Origin.

35

Rule 13
The following time limits for the presentation of the Certificateof Origin shall be observed:(i)the Certificate of Origin shall be valid for a periodof 12 months from the date of issue and must be
submitted to the Customs Authority of theimporting Party within that period;(ii)

where the Certificate of Origin is submitted to theCustoms Authority of the importing Party after the
expiration of the time limit for its submission,
such Certificate of Origin shall still be accepted,
subject to the importing Party’s domestic laws,
regulations or administrative practices, when
failure to observe the time limit results from force
majeure or other valid causes beyond the controlof the importer and/or exporter; and(iii)

the Customs Authority of the importing Party may
accept such Certificate of Origin, provided thatthe goods have been imported before theexpiration of the time limit of that Certificate ofOrigin.
Rule 14

The Certificate of Origin shall not be required for:(i)goods originating in the exporting Party and notexceeding US$200.00 FOB value or such higher
amount specified in the importing Party’s
domestic laws, regulations or administrative
practices; or(ii)goods sent through the post not exceeding
US$200.00 FOB value or such higher amount36

specified in the importing Party’s domestic laws,
regulations or administrative practices,
provided that the importation does not form part of one ormore importations that may reasonably be considered tohave been undertaken or arranged for the purpose of
avoiding the submission of the Certificate of Origin.
Rule 15
1.
Where the origin of the good is not in doubt, thediscovery of minor transcription errors or discrepancies indocumentation shall not ipso facto invalidate the Certificateof Origin, if it does in fact correspond to the goods submitted.
2.
For multiple goods declared under the same Certificateof Origin, a problem encountered with one of the goods listed
shall not affect or delay the granting of preferential tariff
treatment and customs clearance of the remaining goods
listed in the Certificate of Origin.
Rule 16
1.
Each Party shall require that the Issuing
Authority/Body, manufacturer, producer, exporter, importer,and their authorised representatives maintain for a period of
not less than three years after the date of exportation or
importation, as the case may be, all records relating to thatexportation or importation which are necessary todemonstrate that the good for which a claim for preferential
tariff treatment was made qualifies for preferential tariff
treatment. Such records may be in electronic form.
2.
Information relating to the validity of the Certificate ofOrigin shall be furnished upon request of the importing Party
by an official authorised to sign the Certificate of Origin andcertified by the appropriate Issuing Authority/Body.

37

3.
Any information communicated between the Parties
concerned shall be treated as confidential and shall be used
for the validation of Certificates of Origin purposes only.1
ORIGIN VERIFICATION
Rule 17
1.
The Customs Authority of the importing Party may
verify the eligibility of a good for preferential tariff treatment inaccordance with its domestic laws, regulations oradministrative practices.
2.
If the Customs Authority of the importing Party hasreasonable doubts as to the authenticity or accuracy of theinformation included in the Certificate of Origin or otherdocumentary evidence, it may:(i)

institute retroactive checking measures toestablish the validity of the Certificate of Origin orother documentary evidence of origin;(ii)

request information from the relevant importer ofa good for which preferential tariff treatment wasclaimed; and(iii)

issue written requests to the Issuing
Authority/Body of the exporting Party for
information from the exporter or producer.

3.
A request for information in accordance with Paragraph2(iii) shall not preclude the use of the verification visit
provided for in Rule 18.
4.
The recipient of a request for information underParagraph 2 shall provide the information requested within aperiod of 90 days from the date the written request is made.
1

This Paragraph shall be read with reference to the confidentiality provisions ofArticle 5 (Confidentiality) of Chapter 18 (Final Provisions).

38

5.
The Customs Authority of the importing Party shallprovide written advice as to whether the goods are eligible
for preferential tariff treatment to all the relevant parties
within 60 days from receipt of information necessary to makea decision.
VERIFICATION VISIT
Rule 18
1.
If the Customs Authority of the importing Party wishes
to undertake a verification visit, it shall issue a written
request to the Issuing Authority/Body of the exporting Partyat least 30 days in advance of the proposed verification visit.
2.
If the Issuing Authority/Body of the exporting Party is
not a government agency, the Customs Authority of theimporting Party shall notify the Customs Authority of theexporting Party of the written request to undertake theverification visit.
3.
The written request referred to in Paragraphs 1 and 2
shall at a minimum include:(i)

the identity of the Customs Authority issuing therequest;(ii)

the name of the exporter or the producer of theexporting Party whose good is subject to theverification visit;(iii)

the date the written request is made;(iv)

the proposed date and place of the visit;(v)

the objective and scope of the proposed visit,
including specific reference to the good subject tothe verification; and

39

(vi)

the names and titles of the officials of the
Customs Authority or other relevant authorities of
the importing Party who will participate in thevisit.

4.
The Issuing Authority/Body of the exporting Party shallnotify the exporter or producer of the intended verification
visit by the Customs Authority or other relevant authorities of
the importing Party and request the exporter or producer to:(i)permit the Customs Authority or other relevant
authorities of the importing Party to visit theirpremises or factory; and(ii)

provide information relating to the origin of the
good.

5.
The Issuing Authority/Body shall advise the exporter or
producer that, should they fail to respond by a specified date,preferential tariff treatment may be denied.
6.
The Issuing Authority/Body of the exporting Party shalladvise the Customs Authority of the importing Party within 30
days of the date of the written request from the Customs
Authority of the importing Party whether the exporter or
producer has agreed to the request for a verification visit.
7.
The Customs Authority of the importing Party shall not
visit the premises or factory of any exporter or producer inthe territory of the exporting Party without written priorconsent from the exporter or producer.
8.
The Customs Authority of the importing Party shallcomplete any action to verify eligibility for preferential tariff
treatment and make a decision within 150 days of the date of
the request to the Issuing Authority/Body under Paragraph 1.
The Customs Authority of the importing Party shall provide
written advice as to whether goods are eligible for40

preferential tariff treatment to the relevant parties within tendays of the decision being made.
9.
Parties shall maintain the confidentiality of information
classified as confidential collected in the process ofverification and shall protect that information from disclosurethat could prejudice the competitive position of the person
who provided the information. The information classified asconfidential may only be disclosed to those authorities
responsible for the administration and enforcement of origin
determination.2
SUSPENSION OF PREFERENTIAL TARIFF TREATMENT
Rule 19
1.
The Customs Authority of the importing Party may
suspend preferential tariff treatment to a good that is the
subject of an origin verification action under this Annex forthe duration of that action or any part thereof.
2.
The importing Party may release the goods to theimporter subject to any administrative measures deemednecessary, provided that they are not held to be subject toimport prohibition or restriction and there is no suspicion of
fraud.
3.
In the event that a determination is made by the
Customs Authority of the importing Party that the goodqualifies as an originating good of the exporting Party, anysuspended preferential tariff treatment shall be reinstated.
Rule 20
When the destination of any goods exported to a specified
Party is changed after their export from the exporting Party,
but before clearance by the importing Party, the exporter,
2

This Paragraph shall be read with reference to the confidentiality provisions ofArticle 5 (Confidentiality) of Chapter 18 (Final Provisions).

41

manufacturer, producer or its authorised representative shallapply in writing to the Issuing Authority/Body for a new
Certificate of Origin for the goods changing destination. The
application shall include the original Certificate of Origin
relating to the goods.
Rule 21
For the purpose of implementing Article 14 (Direct
Consignment) of Chapter 3 (Rules of Origin) wheretransportation is effected through the territory of any nonParty, the following shall be provided to the Customs
Authority of the importing Party:(i)a through Bill of Lading issued in the exporting
Party;(ii)

a Certificate of Origin issued by the relevant
Issuing Authority/Body of the exporting Party,
unless not required pursuant to Rule 12.2 or Rule
14;

(iii)

a copy of the original commercial invoice inrespect of the good; and(iv)

supporting documents in evidence that therequirements of Article 14 (Direct Consignment)of Chapter 3 (Rules of Origin) have been
complied with.
Rule 22

1.
The Customs Authority of the importing Party may
accept Certificates of Origin in cases where the sales invoice
is issued either by a company located in a third country or by
an exporter for the account of that company, provided thatthe goods meet the requirements of Chapter 3 (Rules ofOrigin).

42

2.
The words “SUBJECT OF THIRD-PARTY INVOICE(name of company using the invoice)” shall appear on theCertificate of Origin.
ACTION AGAINST FRAUDULENT ACTS
Rule 23
When it is suspected that fraudulent acts in connection with
the Certificate of Origin have been committed, thegovernment authorities concerned shall co-operate in theaction to be taken in the respective Party against the persons
involved, in accordance with the Party’s respective laws andregulations.
GOODS IN TRANSPORT OR STORAGE
Rule 24
Originating goods which are in the process of beingtransported from the exporting Party to the importing Party,
or which are in temporary storage in a bonded area in theimporting Party, should be accorded preferential tariff
treatment if they are imported into the importing Party on orafter the date of entry into force of this Agreement, subject tothe submission of a Certificate of Origin issued retroactively
to the Customs Authority of the importing Party and subject
to domestic laws, regulations or administrative practices of
the importing Party.
SETTLEMENT OF DISPUTES
Rule 253
1.
In the case of a dispute concerning origin
determination, classification of goods or other matters, the3This Rule is without prejudice to a Party’s rights under Chapter 17 (Consultations
and Dispute Settlement).

43

government authorities concerned in the importing andexporting Parties shall consult each other with a view toresolving the dispute, and the result shall be reported to theother Parties for information.
2.
If no settlement can be reached bilaterally, the disputemay be referred to the ROO Sub-Committee establishedpursuant to Article 18 (Sub-Committee on Rules of Origin) of
Chapter 3 (Rules of Origin).

44

Appendix 1
Minimum Data Requirements – Application for a
Certificate of Origin
The minimum data to be included in an application for a
Certificate of Origin are:1.

Exporter details

The name, address and contact details of theexporter2.

Shipment details(a separate
application must
be made foreach shipment)(i) Consignee name and address(ii) Sufficient details to identify the consignment,such as importer’s purchase order number,invoice number and date and Air Way Bill or
Sea Way Bill or Bill of Lading(iii) Port of Discharge, if known

3.

Full descriptionof goods(i)4.

Exporter’s
declaration

Declaration completed by the exporter or its
authorised representative, signed and dated, andannotated with the signatory’s name anddesignation. The declaration shall include astatement that the details provided in theapplication are true and correct

Detailed description of the goods, including
HS Code (6-digit level), and if applicable,
product number and brand name(ii) The relevant origin conferring criteria

45

Appendix 2
Minimum Data Requirements – Certificate of Origin
The minimum data to be included in the Certificate of Origin
are:
1. Exporter details

The name and address and contact details of theexporter

2. Shipment details(a Certificate ofOrigin can only
apply to a single
shipment ofgoods)(i) Consignee name and address(ii) Sufficient details to identify the consignment,such as importer’s purchase order number,invoice number and date and Air Way Bill or
Sea Way Bill or Bill of Lading(iii) Port of Discharge, if known

3. Full description of
goods

(i)

Detailed description of the goods, including
HS Code (6-digit level), and if applicable,
product number and brand name(ii) The relevant origin conferring criteria(iii) FOB Value1

4. Certification by
Issuing
Authority/Body

Certification by the Issuing Authority/Body that,based on the evidence provided, the goods
specified in the Certificate of Origin meet all the
relevant requirements of Chapter 3 (Rules ofOrigin)5. Certificate ofOrigin number

A unique number assigned to the Certificate ofOrigin by the Issuing Authority/Body

1
In the case of Australia and New Zealand, a Certificate of Origin or back-to-backCertificate of Origin which does not state the FOB value shall be accompanied by adeclaration made by the exporter stating the FOB value of each good described in theCertificate of Origin.

46

CHAPTER 4CUSTOMS PROCEDURES
Article 1
Objectives
The objectives of this Chapter are to:(a)ensurepredictability,
consistency
andtransparency in the application of customs laws
and regulations of the Parties;(b)

promote efficient, economical administration ofcustoms procedures, and the expeditious
clearance of goods;(c)simplify customs procedures; and(d)promote co-operation among
administrations of the Parties.

thecustoms

Article 2
Scope
This Chapter applies, in accordance with the Parties’
respective laws, regulations and policies, to customs
procedures applied to goods traded among the Parties.
Article 3
Definitions
For the purposes of this Chapter:(a)customs law means such laws and regulations
administered and enforced by the customs
authority of each Party concerning theimportation, exportation, and transit/transhipment47

of goods, as they relate to customs duties,
charges, and other taxes, or to prohibitions,
restrictions, and other similar controls withrespect to the movement of controlled items
across the boundary of the customs territory ofeach Party; and(b)customs procedures means the treatment
applied by the customs administration of a Party
to goods, which are subject to that Party’s
customs law.
Article 4
Customs Procedures and Facilitation

1.
Each Party shall ensure that its customs proceduresand practices are predictable, consistent, transparent andfacilitate trade, including through the expeditious clearanceof goods.
2.
Customs procedures of each Party shall, where
possible and to the extent permitted by its customs law,
conform with the standards and recommended practices ofthe World Customs Organization.
3.
The customs administration of each Party shall review
its customs procedures with a view to their simplification tofacilitate trade.
Article 5
Customs Co-operation
1.
To the extent permitted by its domestic law, thecustoms administration of each Party may, as deemed
appropriate, assist the customs administration of each otherParty, in relation to:(a)the implementation and operation of this Chapter;

48

(b)

developing and implementing customs bestpractice and risk management techniques;(c)providing, where possible, prior notice of changes
to laws, regulations, and relevant procedures andguidelines that would affect the operation of thisAgreement;(d)simplifying and harmonising customs procedures;(e)advancing technical skills and the use oftechnology; and(f)application
Valuation.

of

the

Agreementon

Customs

2.
Subject to available resources, the customs
administrations of the Parties may, as deemed appropriate,
explore and undertake co-operation projects, including:(a)capacity building programmes to enhance thecapability of customs personnel of ASEAN
Member States; and(b)technical assistance programmes to facilitate theParties’ development and implementation ofSingle Windows.
Article 6
Use of Automated Systems

1.
The customs administration of each Party, whereapplicable, shall endeavour to have its own system that
supports electronic customs transactions.
2.
In implementing initiatives, the customs administrationof each Party shall take into account the relevant standards
and best practices recommended by the World Customs

49

Organization, taking into consideration
infrastructure and capabilities of each Party.

theavailable

Article 7
Valuation
The Parties shall determine the customs value of goods
traded among them in accordance with the provisions of theAgreement on Customs Valuation.1
Article 8
Advance Rulings
1.
Each Party, through its customs administration or otherrelevant authorities, to the extent permitted by its domestic
laws, regulations and administrative determinations, on theapplication of a person described in Paragraph 2(a), shallprovide in writing advance rulings in respect of the tariffclassification, questions arising from the application of theprinciples of the Agreement on Customs Valuation and/or
origin of goods.
2.
Where available, each Party shall adopt or maintainprocedures for advance rulings, which shall:(a)provide that an importer in its territory or an
exporter or producer in the territory of anotherParty may apply for an advance ruling before theimportation of the goods in question;(b)require that an applicant for an advance rulingprovide a detailed description of the goods andall relevant information needed to process anapplication for an advance ruling;1

In the case of Cambodia, the Agreement on Customs Valuation, as implemented inaccordance with the provisions of the Protocol on the Accession of the Kingdom of
Cambodia to the WTO shall apply mutatis mutandis.

50

(c)

provide that its customs administration may, at
any time during the course of an evaluation of an
application for an advance ruling, request that theapplicant provide additional information within a
specified period;(d)provide that any advance ruling be based on thefacts and circumstances presented by theapplicant, and any other relevant information in
the possession of the decision-maker; and(e)provide that an advance ruling be issued to theapplicant expeditiously, within the period
specified in each Party’s domestic laws,
regulations or administrative determinations.

3.
A Party may reject requests for an advance rulingwhere the additional information requested by it inaccordance with Paragraph 2(c) is not provided within thespecified period.
4.
Subject to Paragraphs 1 and 5 and where available,
each Party shall apply an advance ruling to all importationsof goods described in that ruling imported into its territory forthree years from the date of that ruling, or such other period
as specified in that Party's domestic laws, regulations oradministrative determinations.
5.
A Party may modify or revoke an advance ruling upona determination that the ruling was based on an error of factor law (including human error), the information provided isfalse or inaccurate, if there is a change in domestic law
consistent with this Agreement, or there is a change in amaterial fact or circumstance on which the ruling is based.
6.
Where an importer claims that the treatment accorded
to an imported good should be governed by an advanceruling, the customs administration may evaluate whether thefacts and circumstances of the importation are consistent51

with the facts and circumstances upon which an advanceruling was based.
Article 9
Risk Management
1.
The Parties shall administer customs procedures so as
to facilitate the clearance of low-risk goods and focus on
high-risk goods. To enhance the flow of goods across theirborders the customs administration of each Party shallregularly review these procedures.
2.
Where a customs administration of a Party deems thatthe inspection of goods is not necessary to authorise
clearance of the goods from customs control, that Party shallendeavour to provide a single point for the documentary orelectronic processing of those goods.
Article 10
Confidentiality
1.
Nothing in this Chapter shall be construed to require
any Party to furnish or allow access to confidential
information pursuant to this Chapter, the disclosure of whichit considers would:(a)be contrary to the public interest as determinedby its legislation;(b)

be contrary to any of its legislation including, but
not limited to, legislation protecting personalprivacy or the financial affairs and accounts ofindividual customers of financial institutions;(c)

impede law enforcement; or(d)prejudice legitimate commercial interests, which
may include competitive position, of particularenterprises, public or private.

52

2.
Where a Party provides information to another Party inaccordance with this Chapter and designates the informationas confidential, the Party receiving the information shallmaintain the confidentiality of the information, use it only forthe purposes specified by the Party providing the information,and not disclose it without the specific written permission of
the Party providing the information.
Article 11
Enquiry Points
1.
Each Party shall designate one or more enquiry points
to address enquiries from interested persons concerning
customs matters, and shall make available on the internet
and/or in print form, information concerning procedures formaking such enquiries.
2.
Each Party shall publish on the internet and/or in print
form all statutory and regulatory provisions and any customs
administrative procedures applied or enforced by its customs
administration, not including law enforcement procedures
and internal operational guidelines.
Article 12
Consultations
The customs administrations of the Parties will encourage
consultation with each other regarding significant customs
issues that affect goods traded among the Parties.
Article 13
Review and Appeal
1.
Each Party shall ensure that the importers in its
territory have access to administrative review within thecustoms administration that issued the decision subject toreview or, where applicable, the higher authority supervising
the administration and/or judicial review of the determination

53

taken at the final level of administrative review, in
accordance with the Party's domestic law.
2.
The decision on appeal shall be given to the appellant
and the reasons for such decision shall be provided in writing.
3.
The level of administrative review may include any
authority supervising the customs administration of a Party.

54

CHAPTER 5SANITARY AND PHYTOSANITARY MEASURES
Article 1
Objectives
The objectives of this Chapter are to:(a)facilitate trade among the Parties while protecting
human, animal or plant life or health in the
territory of each Party;(b)providegreatertransparency
inandunderstanding of the application of each Party’s
regulations and procedures relating to sanitaryand phytosanitary measures;(c)strengthen co-operation among the competentauthorities of the Parties which are responsible
for matters covered by this Chapter; and(d)enhance practical implementation of theprinciples and disciplines contained within the
SPS Agreement.
Article 2
Scope

This Chapter shall apply to all sanitary and phytosanitary
measures of a Party that may, directly or indirectly, affecttrade among the Parties.
Article 3
Definitions
For the purposes of this Chapter:

55

(a)

competent authorities means those authorities
within each Party recognised by the national
government as responsible for developing andadministeringthevarioussanitary
andphytosanitary measures within that Party;(b)international standards, guidelines andrecommendations shall have the same meaning
as set out in paragraph 3 of Annex A to the SPS
Agreement;(c)sanitary or phytosanitary measure shall havethe same meaning as set out in paragraph 1 ofAnnex A to the SPS Agreement; and(d)

SPS Agreement means the Agreement on the
Application of Sanitary and Phytosanitary
Measures in Annex 1A to the WTO Agreement.
Article 4
General Provisions

1.
Each Party affirms its rights and obligations withrespect to each other Party under the SPS Agreement.
2.
Each Party commits to apply the principles of the SPS
Agreement in the development, application or recognition of
any sanitary or phytosanitary measure with the intent tofacilitate trade among the Parties while protecting human,
animal or plant life or health in the territory of each Party.
Article 5
Equivalence
1.
The Parties shall strengthen co-operation onequivalence in accordance with the SPS Agreement andrelevant
international
standards,
guidelines
andrecommendations, in order to facilitate trade among theParties.

56

2.
To facilitate trade, the competent authorities of therelevant Parties may develop equivalence arrangements andmake equivalence decisions, in particular in accordance with
Article 4 of the SPS Agreement and with the guidance
provided by the relevant international standard setting bodies
and by the WTO Committee on Sanitary and Phytosanitary
Measures established pursuant to Article 12 of the SPS
Agreement.
3.
A Party shall, upon request, enter into negotiations withthe aim of achieving bilateral recognition arrangements of theequivalence of specified sanitary or phytosanitary measures.
Article 6Competent Authorities and Contact Points
1.
Each Party shall provide each other Party with adescription of its competent authorities and their division of
responsibilities.
2.
Each Party shall provide each other Party with acontact point to facilitate distribution of requests or
notifications made in accordance with this Chapter.
3.
Each Party shall ensure the information provided underParagraphs 1 and 2 is kept up to date.
Article 7
Notification
1.
Each Party acknowledges the value of exchanging
information on its sanitary or phytosanitary measures.
2.
Each Party agrees to provide timely and appropriate
information directly to the contact points of the relevant
Parties where a:

57

(a)

change in animal or plant health status may
affect existing trade;(b)significant sanitary or phytosanitary noncomplianceassociatedwithanexportconsignment is identified by the importing Party;
and

(c)

provisional sanitary or phytosanitary measureagainst or affecting the exports of another Party
is considered necessary to protect human,
animal or plant life or health within the importing
Party.

3.
The exporting Party should, to the extent possible,
endeavour to provide information to the importing Party if theexporting Party identifies that an export consignment which
may be associated with a significant SPS risk has been
exported.
Article 8
Co-operation
1.
Each Party shall explore opportunities for further cooperation, collaboration and information exchange with theother Parties on sanitary and phytosanitary matters of mutualinterest consistent with the objectives of this Chapter.
2.
In relation to Paragraph 1, each Party shall endeavour
to co-ordinate with regional or multilateral work programmeswith the objective of avoiding unnecessary duplication and to
maximise the benefits from the application of resources.
3.
Each Party agrees to further explore how it canstrengthen co-operation on the provision of technicalassistance especially in relation to trade facilitation.
4.
Any two Parties may, by mutual agreement, co-operate
on adaptation to regional conditions in accordance with the58

SPS Agreement and relevant international standards,
guidelines and recommendations, in order to facilitate trade
between the Parties.
Article 9
Consultations
Where a Party considers that a sanitary or phytosanitary
measure affecting trade between it and another Party
warrants further discussion, it may, through the contact
points, request a detailed explanation of the sanitary or
phytosanitary measure and if necessary, request to holdconsultations in an attempt to resolve any concerns on
specific issues arising from the application of the sanitary or
phytosanitary measure. The other Party shall respondpromptly to any requests for such explanations, and if sorequested, shall enter into consultations, within 30 days fromthe date of the request. The Parties to the consultations shallmake every effort to reach a mutually satisfactory resolution
through consultations within 60 days from the date of therequest, or a timeline mutually agreed upon by the consulting
Parties. Should the consultations fail to achieve resolution,
the matter shall be forwarded to the FTA Joint Committee.
Article 10
Meetings Among the Parties on Sanitary andPhytosanitary Matters
1.
The Parties hereby establish a Sub-Committee on
Sanitary and Phytosanitary Matters (SPS Sub-Committee),consisting of representatives from the relevant government
agencies of each Party. The SPS Sub-Committee shall meetwithin one year of the entry into force of this Agreement andthereafter as mutually determined by the Parties.
2.
The SPS Sub-Committee shall review the progress
made by the Parties in implementing their commitments
under this Chapter and may set up subsidiary working

59

groups, as agreed between or among the relevant Parties, toconsider specified issues relating to this Chapter.
3.
Competent authorities of any two Parties may meet tomake decisions bilaterally implementing the commitments
under this Chapter. Each Party shall provide to the SPS SubCommittee updates on the status of their work.
4.
Subject to Paragraph 1, meetings under this Article
shall occur as and when mutually determined by the relevant
Parties and all decisions and/or records made shall be bymutual agreement of the relevant Parties. Meetings may
occur in person, by teleconference, by video conference, or
through any other means as mutually determined by theParties.
Article 11
Non-Application of Chapter 17 (Consultations and
Dispute Settlement)
Chapter 17 (Consultations and Dispute Settlement) shall not
apply to any matter arising under this Chapter.

60

CHAPTER 6
STANDARDS, TECHNICAL REGULATIONS AND
CONFORMITY ASSESSMENT PROCEDURES
Article 1
Objectives
The objectives of this Chapter are to facilitate trade in goods
among the Parties by:(a)ensuring that standards, technical regulations,and conformity assessment procedures do notcreate unnecessary obstacles to trade;(b)promoting mutual understanding of each Party’s
standards, technical regulations, and conformity
assessment procedures;(c)strengthening information exchange and cooperation among the Parties in relation to the
preparation, adoption and application ofstandards, technical regulations and conformity
assessment procedures;(d)strengthening co-operation among the Parties in
the work of international bodies related tostandardisation and conformity assessments; and(e)providing a framework to implement supporting
mechanisms to realise these objectives.
Article 2
Scope

1.
For the mutual benefit of the Parties, this Chapter
applies to all standards, technical regulations and conformity

61

assessment procedures of the Parties that may affect tradein goods between the Parties except:(a)purchasing
specifications
preparedbygovernmental bodies for the production or
consumption requirements of such bodies; and(b)sanitary or phytosanitary measures as defined in
Chapter 5 (Sanitary and Phytosanitary Measures).

2.
Nothing in this Chapter shall limit the right of a Party to
prepare, adopt and apply standards, technical regulations
and conformity assessment procedures only to the extent
necessary to fulfil a legitimate objective. Such legitimate
objectives are, inter alia, national security requirements; theprevention of deceptive practices; protection of human healthor safety; animal or plant life or health; or the environment.
Article 3
Definitions
For the purposes of this Chapter, the definitions set out inAnnex 1 to the Agreement on Technical Barriers to Trade(TBT Agreement) in Annex 1A to the WTO Agreement shallapply.
Article 4Affirmation of the TBT Agreement
1.
Each Party affirms its rights and obligations withrespect to each other Party under the TBT Agreement.
2.
Each Party shall take such reasonable measures as
may be available to it to ensure compliance, in theimplementation of this Chapter, by local government andnon-governmental bodies within its territory which areresponsible for the preparation, adoption and application ofstandards, technical regulations and conformity assessment
procedures.

62Article 5Standards
1.
With respect to the preparation, adoption andapplication of standards, each Party shall ensure that its
standardising body or bodies accept and comply with Annex
3 to the TBT Agreement.
2.
Each Party shall encourage the standardising body or
bodies in its territory to co-operate with the standardisingbody or bodies of other Parties. Such co-operation shall
include, but is not limited to:(a)exchange of information on standards;(b)exchange of information relating to standard
setting procedures; and(c)co-operation in the work of international
standardising bodies in areas of mutual interest.
Article 6
Technical Regulations

1.
Where relevant international standards exist or theircompletion is imminent, each Party shall use them, or
relevant parts of them, as a basis for their technicalregulations except when such international standards or
relevant parts would be an ineffective or inappropriate means
for the fulfilment of the legitimate objectives pursued, forinstance because of fundamental climatic or geographicalfactors or fundamental technological problems.
2.
Each Party shall give positive consideration toaccepting as equivalent, technical regulations of anotherParty, even if these regulations differ from its own, provided it
is satisfied that these regulations adequately fulfil theobjectives of its own regulations.

63

3.
Where a Party does not accept a technical regulationof another Party as equivalent to its own it shall, uponrequest of the other Party, explain the reasons for its
decision.
Article 7
Conformity Assessment Procedures
1.
Each Party shall give positive consideration toaccepting the results of conformity assessment proceduresof other Parties, even where those procedures differ from its
own, provided it is satisfied that those procedures offer anassurance of conformity with applicable technical regulations
or standards equivalent to its own procedures.
2.
Each Party shall seek to enhance the acceptance ofthe results of conformity assessment procedures conductedin the territories of other Parties with a view to increasing
efficiency, avoiding duplication and ensuring costeffectiveness of the conformity assessments. In this regard,
each Party may choose, depending on the situation of theParty and the specific sectors involved, a broad range ofapproaches. These may include but are not limited to:(a)recognition by a Party of the results of conformity
assessments performed in the territory of anotherParty;(b)recognition
ofco-operative
arrangements
between accreditation bodies in the territories of
the Parties;(c)mutual recognition of conformity assessment
procedures conducted by bodies located in the
territory of each Party;(d)accreditation of conformity assessment bodies inthe territory of another Party;

64

(e)

use of existing regional and international
multilateral
recognition
agreements
andarrangements;(f)

designating conformity assessment bodies
located in the territory of another Party to performconformity assessment; and(g)suppliers’ declaration of conformity.

3.
Each Party shall exchange information with otherParties on its experience in the development and applicationof the approaches in Paragraph 2(a) to (g) and otherappropriate approaches with a view to facilitating theacceptance of the results of conformity assessment
procedures.
4.
A Party shall, upon request of another Party, explain its
reasons for not accepting the results of any conformity
assessment procedure performed in the territory of that otherParty.
Article 8
Co-operation
1.
The Parties shall intensify their joint efforts in the fieldof standards, technical regulations and conformity
assessment procedures with a view to facilitating access toeach other’s markets.
2.
Each Party shall, upon request of another Party, give
positive consideration to proposals to supplement existing
co-operation on standards, technical regulations andconformity assessment procedures. Such co-operation,
which shall be on mutually determined terms and conditions,
may include but is not limited to:

65

(a)

advice or technical assistance relating to thedevelopment and application of standards,
technical regulations and conformity assessment
procedures;(b)

co-operation between conformity assessment
bodies,bothgovernmental
andnongovernmental, in the territories of each of theParties such as:(i)use of accreditation to qualify conformity
assessment bodies; and(ii)

enhancing infrastructure in calibration,
testing,
inspection,
certificationandaccreditation to meet relevant international
standards,
recommendations
andguidelines;(c)co-operation in areas of mutual interest in thework of relevant regional and international bodies
relating to the development and application ofstandards
andconformity
assessment
procedures such as enhancing participation in
the existing frameworks for mutual recognition
developed by relevant regional and international
bodies; and(d)enhancing co-operation in the development andimprovement of technical regulations andconformity assessment procedures such as:(i)co-operation in the development andpromotion of good regulatory practice;(ii)transparency, including ways to promote
improved access to information on
standards, technical regulations andconformity assessment procedures; and66

(iii)

management of risks relating to health,safety, the environment and deceptive
practices.

3.
Upon request of another Party, a Party shall give
positive consideration to a sector-specific proposal that therequesting Party makes for further co-operation under this
Chapter.
Article 9
Consultations
1.
Each Party shall give prompt and positive
consideration to any request from another Party for
consultations on issues relating to the implementation of this
Chapter.
2.
Where a matter covered under this Chapter cannot beclarified or resolved as a result of consultations, the Parties
concerned may establish an ad hoc working group with aview to identifying a workable and practical solution tofacilitate trade. The ad hoc working group shall compriserepresentatives of the Parties concerned.
3.
Where a Party declines a request from another Party toestablish an ad hoc working group, it shall, upon request of
the other Party, explain the reasons for its decision.
Article 10
Agreements or Arrangements
1.
Parties shall seek to identify trade-facilitating initiatives
regarding standards, technical regulations and conformity
assessment procedures that are appropriate for particularissues or sectors.
2.
Suchtrade-facilitating
initiatives
may
includeagreements or arrangements on regulatory issues, such as

67

alignment of standards, convergence or equivalence oftechnical regulations conformity assessment procedures andcompliance issues.
3.
Parties to an existing agreement or arrangement shallgive consideration to extending such an agreement or
arrangement to another Party upon request of that Party.
Such consideration may be subject to appropriate confidencebuilding processes to ensure equivalency of relevant
standards,
technical
regulations
and/orconformity
assessment procedures.
4.
Where a Party declines a request of another Party toconsider extending the application of an existing agreement
or arrangement it shall, upon request of that Party, explain
the reasons for its decision.
Article 11
Transparency
1.
Each Party affirms its commitment to ensuring that
information regarding proposed new or amended standards,
technical regulations and conformity assessment proceduresis made available in accordance with the relevant
requirements of the TBT Agreement.
2.
Each Party shall ensure that the information relating tostandards, technical regulations and conformity assessment
procedures is published. Such information should be madeavailable in printed form and, where possible, in electronic
form.
Article 12
Contact Points
1.
Each Party shall designate a contact point or contact
points who shall, for that Party, have responsibility for coordinating the implementation of this Chapter.

682.
Each Party shall provide each of the other Parties with
the name of the designated contact point or contact points
and the contact details of the relevant official in thatorganisation, including telephone, facsimile, email and anyother relevant details.
3.
Each Party shall notify each of the other Parties
promptly of any change of their contact points or any
amendments to the details of the relevant officials.
4.
Each Party shall ensure that its contact point or contact
points facilitate the exchange of information between theParties on standards, technical regulations and conformity
assessment procedures, in response to all reasonable
requests for such information from a Party.
Article 13
Sub-Committee on Standards, Technical Regulations
and Conformity Assessment Procedures
1.
The Parties hereby establish a Sub-Committee onStandards,
Technical
Regulations
andConformity
Assessment Procedures (STRACAP Sub-Committee),consisting of representatives of the Parties, to promote andmonitor the implementation and administration of this
Chapter.
2.
The STRACAP Sub-Committee shall meet as mutually
determined by the Parties. Meetings may be conducted inperson, or by any other means as mutually determined by
the Parties.
3.
The STRACAP Sub-Committee shall determine its
terms of reference in accordance with this Chapter.
4.
The STRACAP Sub-Committee shall determine its
work programme in response to priorities as identified by theParties.

69

CHAPTER 7
SAFEGUARD MEASURES
Article 1
Scope
This Chapter applies to safeguard measures adopted or
maintained by a Party affecting trade in goods among theParties during the transitional safeguard period.
Article 2
Definitions
For the purposes of this Chapter:(a)domestic industry means, with respect to an
imported good, the producers as a whole of thelike or directly competitive goods operating within
a Party, or those whose collective output of thelike or directly competitive goods constitutes amajor proportion of the total domestic productionof those goods;(b)global safeguard measure means a measureapplied under Article XIX of GATT 1994 and theAgreement on Safeguards in Annex 1A to the
WTO Agreement (Safeguards Agreement) or
Article 5 of the Agreement on Agriculture inAnnex 1A to the WTO Agreement (Agreement on
Agriculture);(c)

provisional measure means a provisionalsafeguard measure described in Article 7(Provisional Safeguard Measures);(d)safeguard measure means a transitionalsafeguard measure described in Article 6 (Scope70and Duration
Measures);ofTransitional

Safeguard(e)serious injury means a significant overall
impairment in the position of a domestic industry;(f)threat of serious injury means serious injury
that, on the basis of facts and not merely on
allegation, conjecture, or remote possibility, isclearly imminent; and(g)transitional safeguard period means, in relation
to a particular good, the period from the entry into
force of this Agreement until three years after thecustoms duty on that good is to be eliminated, or
reduced to its final commitment, in accordancewith that Party’s schedule of tariff commitments inAnnex 1 (Schedules of Tariff Commitments).
Article 3
Imposition of a Safeguard Measure

If, as a result of the reduction or elimination of a customs
duty under this Agreement, an originating good of anotherParty or Parties is being imported into the territory of a Party
during the transitional safeguard period for that good in suchincreased quantities, in absolute terms or relative todomestic production, and under such conditions as to cause
or threaten to cause serious injury to a domestic industry that
produces like or directly competitive goods, that Party may:(a)suspend the further reduction of any rate ofcustoms duty provided for under this Agreementon the good; or(b)increase the rate of customs duty on the good toa level not exceeding the lesser of:

71

(i)

the most-favoured-nation applied rate of
duty on the good in effect at the time theaction is taken; or(ii)

the most-favoured-nation applied rate of
duty on the good in effect on the day
immediately preceding the date of entry
into force of this Agreement.
Article 4Investigation

1.
A Party shall take a safeguard measure only following
an investigation by that Party’s competent authorities inaccordance with the same procedures as those provided forin Article 3 and Article 4.2 of the Safeguards Agreement; andto this end, Article 3 and Article 4.2 of the Safeguards
Agreement shall be incorporated into and shall form part ofthis Agreement, mutatis mutandis.
2.
Each Party shall ensure that its competent authorities
complete any such investigation expeditiously and, in any
event, within one year following the date of its initiation.
Article 5
Notification
1.
A Party shall immediately notify the other Parties, inwriting, on:(a)initiating an investigation(Investigation);(b)making a finding of serious injury or threat thereofcaused by increased imports of an originating
good of another Party or Parties resulting fromthe reduction or elimination of a customs duty onthat originating good;

72

under

Article4

(c)taking a decision to apply or extend a safeguard
measure;(d)taking a decision to progressively liberalise an
existing safeguard measure; or(e)applying a provisional measure.

2.
A Party shall provide promptly to the other Parties acopy of the public version of the report of its competentauthorities required under Article 4 (Investigation).
3.
In making a notification pursuant to Paragraph 1(c), theParty applying or extending a safeguard measure shallprovide the other Parties with evidence of serious injury or
threat of serious injury caused by increased imports of an
originating good of another Party or Parties as a result of the
reduction or elimination of a customs duty pursuant to thisAgreement. Such notification shall include:(a)a precise description of the originating goodsubject to the proposed safeguard measureincluding its heading or subheading under the HS
Code, on which the schedules of tariffcommitments in Annex 1 (Schedules of Tariff
Commitments) are based;(b)a precise description of the proposed safeguard
measure; and(c)the proposed date of the safeguard measure’s
introduction, its expected duration, and atimetable for progressive liberalisation of themeasure, if applicable. In the case of an
extension of a measure, evidence that thedomestic industry concerned is adjusting shallalso be provided.

73

Upon request, the Party applying or extending a safeguard
measure shall provide additional information as anotherParty or Parties may consider necessary.
4.
A Party proposing to apply or extend a safeguard
measure shall provide adequate opportunity for priorconsultations with those Parties which would be affected by
the safeguard measure with a view to reviewing theinformation provided under Paragraphs 2 and 3 arising fromthe investigation referred to in Article 4 (Investigation),exchanging views on the safeguard measure and reachingan agreement on compensation as set forth in Article 8(Compensation).
5.
Where a Party applies a provisional measure referred
to in Article 7 (Provisional Safeguard Measures), on requestof another Party or Parties, consultations shall be initiatedimmediately after such application.
6.
The provisions on notification in this Chapter shall not
require a Party to disclose confidential information thedisclosure of which would impede law enforcement orotherwise be contrary to the public interest or would
prejudice the legitimate commercial interests of particularenterprises, public or private.
Article 6
Scope and Duration of Transitional Safeguard Measures
1.

A Party may not maintain a safeguard measure:(a)

except to the extent, and for such time, as may
be necessary to prevent or remedy serious injury
and to facilitate adjustment;(b)

for a period exceeding two years, except that theperiod may be extended by up to one year if thecompetent authorities of that Party determine, inconformity with the procedures referred to in74

Article 4 (Investigation), that the safeguard
measure continues to be necessary to prevent orremedy serious injury and to facilitate adjustment
and that there is evidence that the industry is
adjusting; or(c)for a period exceeding three years, including any
extension.

2.
A safeguard measure shall not be applied against an
originating good of a Party which is an ASEAN Member
State, as long as its share of imports of the good concernedin the importing Party does not exceed three per cent of thetotal imports from the other Parties, provided that thoseParties with less than three per cent import share collectively
account for not more than nine per cent of total imports of thegood concerned from the other Parties.
3.
Where the expected duration of the safeguard measure
is over one year, the importing Party shall ensure that thesafeguard measure is progressively liberalised at regularintervals during the period of application.
4.
When a Party terminates a safeguard measure on agood, the rate of customs duty for that good shall be nohigher than the rate that, according to the Party’s schedule oftariff commitments in Annex 1 (Schedules of Tariff
Commitments), would have been in effect as if the safeguard
measure had never been applied.
5.
Regardless of its duration or whether it has been
subject to extension, a safeguard measure on a good shallterminate following the end of the transitional safeguard
period for such good.
6.
No safeguard measure shall be applied again to theimport of a particular originating good which has been
subject to such a safeguard measure, for a period of time75

equal to the duration of the previous safeguard measure, or
two years, whichever is longer.
7.
A Party shall not apply a safeguard measure to an
originating good imported up to the limit of quota quantities
granted under tariff rate quotas applied in accordance with itsschedule of tariff commitments in Annex 1 (Schedules ofTariff Commitments).
Article 7
Provisional Safeguard Measures
1.
In critical circumstances, where delay would cause
damage which would be difficult to repair, a Party may take aprovisional measure, pursuant to a preliminary determinationthat there is clear evidence that increased imports of an
originating good from another Party or Parties have causedor are threatening to cause serious injury to a domestic
industry.
2.
The duration of such a provisional measure shall not
exceed 200 days, during which time the relevant
requirements of Article 2 (Definitions), Article 3 (Imposition ofa Safeguard Measure), Article 4 (Investigation), Article 5(Notification) and Article 6 (Scope and Duration ofTransitional Safeguard Measures) shall be met. The durationof any provisional measure shall be counted as part of theinitial period and any extension as referred to in Article 6(Scope and Duration of Transitional Safeguard Measures).
3.
The customs duty imposed as a result of theprovisional measure shall be refunded if the subsequent
investigation referred to in Article 4 (Investigation) does notdetermine that increased imports of the originating good
have caused or threatened to cause serious injury to adomestic industry.

76

Article 8
Compensation
1.
The Party proposing to apply a safeguard measure
shall, in consultation with the exporting Party or Parties who
would be affected by such a measure, provide to that Party
or Parties mutually agreed adequate means of tradecompensation in the form of substantially equivalent level ofconcessions or other obligations to that existing under thisAgreement between the Party applying the safeguard
measure and the exporting Party or Parties who would be
affected by such a measure.
2.
In seeking compensation under Paragraph 1 for asafeguard measure, if the Parties mutually agree, they may
hold consultations in the Goods Committee establishedpursuant to Article 11 (Committee on Trade in Goods) ofChapter 2 (Trade in Goods) to determine the substantiallyequivalent level of concessions to that existing under thisAgreement between the Party taking the safeguard measure
and the exporting Party or Parties who would be affected bysuch a measure prior to any suspension of equivalentconcessions. Any proceedings arising from suchconsultations shall be completed within 30 days from thedate on which the safeguard measure was applied.
3.
If no agreement on the compensation is reached within
the time frame specified in Paragraph 2, the Party or Parties
against whose originating good the measure is applied may
suspend the application of substantially equivalentconcessions to the trade of the Party applying the safeguard
measure. The Party or Parties may suspend the concessions
only for the minimum period necessary to achieve thesubstantially equivalent effects and only while the safeguard
measure is maintained. The right of suspension provided forin this Paragraph shall not be exercised for the first two years
that a safeguard measure is in effect, provided that thesafeguard measure has been applied as a result of an77

absolute increase in imports and that such a safeguard
measure conforms to this Chapter.
4.
A Party shall notify the other Parties in writing at least
30 days before suspending concessions under Paragraph 3.
5.
The obligation to provide compensation underParagraph 1 and the right to suspend substantiallyequivalent concessions under Paragraph 3 shall terminate
on the termination of the safeguard measure.
Article 9
Relationship to the WTO Agreement
1.
Each Party retains its rights and obligations under
Article XIX of GATT 1994, the Safeguards Agreement andArticle 5 of the Agreement on Agriculture. This Agreement
does not confer any additional rights or obligations on theParties with regard to global safeguard measures.
2.
A Party shall not apply a safeguard measure orprovisional measure, as provided in Article 6 (Scope andDuration of Transitional Safeguard Measures) or Article 7(Provisional Safeguard Measures) on a good that is subject
to a measure that the Party has applied pursuant to Article
XIX of GATT 1994 and the Safeguards Agreement, theAgreement on Agriculture or any other relevant provisions in
the WTO Agreement, nor shall a Party continue to maintain asafeguard measure or provisional measure on a good that
becomes subject to a measure that the Party applies
pursuant to Article XIX of GATT 1994 and the Safeguards
Agreement, the Agreement on Agriculture or any otherrelevant provisions in the WTO Agreement.
3.
A Party considering the imposition of a global
safeguard measure on an originating good of another Party
or Parties shall initiate consultations with that Party or Parties
as far in advance of taking such measure as practicable.

78

CHAPTER 8
TRADE IN SERVICES
Article 1
Scope and Coverage
1.
This Chapter applies to measures by a Party affecting
trade in services.
2.
For the purposes of this Chapter, measures by a Partymeans measures taken by:(a)central, regional, or local governments andauthorities; and(b)

non-governmental bodies in the exercise of
powers delegated by central, regional, or local
governments or authorities.

3.
In fulfilling its obligations and commitments under this
Chapter, each Party shall take such reasonable measures as
may be available to it to ensure their observance by regional
and local governments and authorities and nongovernmental bodies within its territory.
4.

This Chapter shall not apply to measures affecting:(a)government procurement;(b)subsidies or grants including governmentsupported loans, guarantees, and insurance,
provided by a Party or to any conditions attachedto the receipt of such subsidies or grants,
whether or not such subsidies or grants areoffered exclusively to domestic services, service
consumers or service suppliers;

79

(c)

services supplied in the exercise of governmental
authority within the territory of each respective
Party, as defined in Article 2(q) (Definitions), or(d)in respect of air transport services, measures
affecting traffic rights however granted; ormeasures affecting services directly related to theexercise of traffic rights, other than measures
affecting:(i)aircraft repair and maintenance services;(ii)

the selling and marketing of air transport
services; and(iii)

computer reservation system services.

5.
The Parties note the multilateral negotiations pursuant
to the review of the GATS Annex on Air Transport Services.
Upon the conclusion of such multilateral negotiations, theParties shall conduct a review for the purpose of discussing
appropriate amendments to this Agreement so as toincorporate the results of such multilateral negotiations.
6.
Nothing in this Chapter shall apply to measures
affecting natural persons seeking access to the employment
market of another Party, nor shall it apply to measures
regarding citizenship, residence or employment on apermanent basis.
Article 2
Definitions
For the purposes of this Chapter:(a)aircraft repair and maintenance services
means such activities when undertaken on an
aircraft or a part thereof while it is withdrawn from80

service and do not include so-called line
maintenance;(b)commercial presence means any type ofbusiness or professional establishment, including
through:(i)the constitution, acquisition or maintenanceof a juridical person; or(ii)

the creation or maintenance of a branch ora representative office, within the territoryof a Party for the purpose of supplying aservice;(c)computer reservation system services means
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;(d)juridical person means any entity duly
constituted or otherwise organised underapplicable law, whether for profit or otherwise,
and whether privately-owned or governmentowned, including any corporation, trust,
partnership, joint venture, sole proprietorship or
association;(e)juridical person of a Party means a juridical
person which is either:(i)constituted or otherwise organised under
the law of that Party, and is engaged in
substantive business operations in the
territory of that Party or any other Party; or

81

(ii)

(f)

in the case of supply of a service throughcommercial presence, owned or controlledby:(A)

natural persons of that Party; or(B)juridical persons of that Party
identified under Subparagraph (e)(i);In the case of Thailand and Viet Nam, a juridical
person is:(i)owned by persons of a Party if more than
50 per cent of the equity interest in it isbeneficially owned by persons of that Party;(ii)

controlled by persons of a Party if such
persons have the power to name a majorityof its directors or otherwise to legally direct
its actions;(iii)

affiliated with another person when it
controls, or is controlled by, that otherperson; or when it and the other person areboth controlled by the same person;(g)measure means any measure by a Party,
whether in the form of a law, regulation, rule,
procedure, decision, administrative action, or any
other form;(h)measures by a Party affecting trade inservices includes measures in respect of:(i)the purchase or use of, or payment for, aservice;(ii)

the access to and use of, in connection withthe supply of a service, services which are82required by those Parties to be offered tothe public generally; and
(iii)

the
presence,
includingcommercial
presence, of persons of a Party for the
supply of a service in the territory of theother Party;(i)monopoly supplier of a service means any
person, public or private, which in the relevantmarket of the territory of a Party is authorised or
established formally or in effect by that Party as
the sole supplier of that service;(j)natural person of a Party means a natural
person who resides in the territory of that Party or
elsewhere and who under the law of that Party:

(k)

(i)

is a national of that Party; or(ii)

has the right of permanent residence 1 inthat Party, in the case of a Party whichaccords substantially the same treatment to
its permanent residents as it does to its
nationals in respect of measures affecting
trade in services, provided that no Party is
obligated to accord to such permanent
residents treatment more favourable thanwould be accorded by that Party to suchpermanent residents;

person means a natural person or a juridical
person;1

Where a Party has made a reservation with respect to permanent residents in its
schedules under this Agreement, that reservation shall not prejudice the Parties’
rights and obligations in GATS.

83

(l)

sector of a service means:(i)with reference to a specific commitment,
one or more, or all, subsectors of that
service, as specified in a Party’s schedulesof specific commitments in Annex 3(SchedulesofSpecific
Services
Commitments); and(ii)

otherwise, the whole of that service sector,
including all of its subsectors;(m)selling and marketing of air transport services
means opportunities for the air carrier concernedto sell and market freely its air transport services
including all aspects of marketing such as market
research, advertising and distribution. These
activities do not include the pricing of air transport
services nor the applicable conditions;(n)services includes any service in any sector
except services supplied in the exercise ofgovernmental authority;(o)service of another Party means a service which
is supplied:(i)from or in the territory of that other Party; or(ii)

in the case of the supply of a service
through commercial presence or throughthe presence of natural persons, by aservice supplier of that other Party;

84

(p)

service supplier means a person that supplies a
service2;(q)a service supplied in the exercise ofgovernmental authority means any service
which is supplied neither on a commercial basis
nor in competition with one or more service
suppliers;(r)

supply of a service includes the production,
distribution, marketing, sale and delivery of aservice;(s)

trade in services means the supply of a service:

(t)

(i)

from the territory of one Party into theterritory of any other Party;(ii)

in the territory of one Party to the service
consumer of any other Party;(iii)

by a service supplier of one Party, throughcommercial presence in the territory of any
other Party;(iv)

by a service supplier of one Party, throughpresence of natural persons of a Party inthe territory of any other Party; andtraffic rights means the right for scheduled andnon-scheduled services to operate and/or carrypassengers, cargo and mail for remuneration or

2

Where the service is not supplied directly by a juridical person but through otherforms of commercial presence such as a branch or a representative office, theservice supplier (i.e. juridical person) shall, nonetheless, through such presence beaccorded the treatment provided for service suppliers under this Agreement. Suchtreatment shall be extended to the presence through which the service is suppliedand need not be extended to any other parts of the supplier located outside theterritory where the service is supplied.

85

hire from, to within, or over the territory of a Party,
including points to be served, routes to be
operated, types of traffic to be carried, capacity to
be provided, tariffs to be charged and theirconditions, and criteria for designation of airlines,
including such criteria as number, ownership, andcontrol.
Article 3
National Treatment
1.
In sectors inscribed in its schedules of specificcommitments in Annex 3 (Schedules of Specific Services
Commitments) or Annex 4 (Schedules of Movement of
Natural Persons Commitments), and subject to any
conditions and qualifications set out therein, each Party shallaccord to services and service suppliers of any 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.3
2.
A Party may meet the requirement of Paragraph 1 byaccording to services and service suppliers of any otherParty, either formally identical treatment or formally different
treatment to that it accords to its own like services andservice suppliers.
3.
Formally identical or formally different treatment shallbe considered to be less favourable if it modifies theconditions of competition in favour of services or service
suppliers of the Party compared to like services or service
suppliers of any other Party.

3

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.

86Article 4
Market Access
1.
With respect to market access through the modes ofsupply identified in Article 2(s) (Definitions), each Party shallaccord services and service suppliers of any other Party
treatment no less favourable than that provided for under theterms, limitations and conditions agreed and specified in its
schedules of specific commitments in Annex 3 (Schedules ofSpecific Services Commitments) or Annex 4 (Schedules ofMovement of Natural Persons Commitments).42.
In sectors where market access commitments areundertaken, the measures which a Party shall not maintainor adopt either on the basis of a regional subdivision or on
the basis of its entire territory, unless otherwise specified inits schedules of specific commitments in Annex 3 (Schedulesof Specific Services Commitments) or Annex 4 (Schedules ofMovement of Natural Persons Commitments), are defined as:(a)limitations on the number of service suppliers
whether in the form of numerical quotas,
monopolies, exclusive service suppliers or therequirements of an economic needs test;(b)limitations on the total value of service
transactions or assets in the form of numericalquotas or the requirement of an economic needs
test;

4

If a Party undertakes a market-access commitment in relation to the supply of aservices through the mode of supply referred to in Article 2(s)(i) (Definitions) 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 amarket-access commitment through the mode of supply referred to in Article 2(s)(iii)(Definitions), it is hereby committed to allow related transfers of capital into its
territory.

87

(c)

limitations on the total number of service
operations or on the total quantity of services
output expressed in terms of designatednumerical units in the form of quotas or therequirement of an economic needs test5;(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 andwho are necessary for, and directly related to, thesupply 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 typesof legal entity or joint venture through which a
service supplier may supply a service; and(f)limitations on the participation of foreign capital interms of maximum percentage limit on foreign
shareholding or the total value of individual oraggregate foreign investment.
Article 5
Additional Commitments

The Parties may negotiate commitments with respect tomeasures affecting trade in services not subject to Article 3(National Treatment) or Article 4 (Market Access), including
those regarding qualifications, standards or licensing matters.
Such commitments shall be set out in a Party’s schedules of
specific commitments in Annex 3 (Schedules of Specific
Services Commitments) and Annex 4 (Schedules ofMovement of Natural Persons Commitments).

5

Subparagraph (c) does not cover measures of a Party which limit inputs for the
supply of services.

88Article 6
Review of Commitments
The Parties shall enter into successive rounds ofnegotiations, beginning not later than three years from thedate of entry into force of this Agreement, and periodicallythereafter as determined by the FTA Joint Committee, with aview to further improving specific commitments under this
Chapter so as to progressively liberalise trade in services
among the Parties.
Article 7
Consultations on Most-Favoured-Nation Treatment
1.
Subject to Paragraph 2, if, after this Agreement enters
into force, a Party enters into any agreement on trade inservices with a non-Party in which it provides treatment toservices or service suppliers of that non-Party morefavourable than it accords to like services or service
suppliers of other Parties under this Agreement, any otherParty may request consultations to discuss the possibility ofextending, under this Agreement, treatment no lessfavourable than that provided under the agreement with thenon-Party. The requested Party shall enter into consultations
with the requesting Party bearing in mind the overall balanceof benefits. The requesting Party shall notify all the otherParties of their request for consultations under thisParagraph.
2.
No Party shall be obliged to apply Paragraph 1 withrespect to treatment provided under any bilateral or
plurilateral agreement between an individual ASEAN
Member State, or individual ASEAN Member States, andnon-Parties or Australia or New Zealand.
3.
The consulting Parties shall notify the results of theconsultations to all other Parties as soon as practicable andby no later than the next meeting of the Services Committee

89

established pursuant to Article 24 (Committee on Trade inServices) following the conclusion of consultations.
4.
Notwithstanding Paragraph 1, a Party shall not be
obliged to enter into consultations in relation to treatment
provided under any international agreement that entered into
force or was signed prior to the date of entry into force of thisAgreement including, in respect of agreements on theliberalisation of trade in goods or services or investment, any
measures taken as part of a wider process of economic
integration or trade liberalisation between the parties to suchagreements.
Article 8
Schedules of Specific Commitments
1.
Each Party shall set out in a schedule the specificcommitments it undertakes under Article 3 (National
Treatment), Article 4 (Market Access) and Article 5(Additional Commitments). With respect to sectors wheresuch commitments are undertaken, each schedule shallspecify:(a)terms, limitations and conditions on market
access;(b)conditions
treatment;(c)undertakings relating to additional commitments;

(d)

where
appropriate,thetime-frame
implementation of such commitments; and(e)the date of entry into force of such commitments.

andqualificationsonnationalfor2.
Measures inconsistent with both Market Access andNational Treatment shall be inscribed in the column relating
to Market Access. In this case, the inscription will be90

considered to provide a condition or qualification to National
Treatment as well.
3.
Schedules of specific services commitments shall be
set out in Annex 3 (Schedules of Specific Services
Commitments) of this Agreement. The specific commitments
in respect of the supply of a service by a service supplier of
one Party through presence of natural persons of a Party inthe territory of another Party shall be set out in Annex 4(Schedules of Movement of Natural Persons Commitments)of this Agreement.
Article 9
Modification of Schedules
1.
A Party may modify or withdraw any commitment in its
schedule of specific commitments in Annex 3 (Schedules ofSpecific Services Commitments) or Annex 4 (Schedules ofMovement of Natural Persons Commitments), at any timeafter three years have elapsed from the date on which thisAgreement enters into force, in accordance with theprocedures set out in Article XXI of GATS, mutatis mutandis,
and the Procedures for the Implementation of Article XXI of
GATS set out in WTO document S/L/80 of 29 October 1999
(the GATS Article XXI Procedures), mutatis mutandis, as
amended from time to time.
2.
For the avoidance of doubt, references in Article XXI of
GATS and the GATS Article XXI Procedures to the“Secretariat” and the “Council for Trade in Services” shalleach be read as references to the FTA Joint Committee.
Article 10
Domestic Regulation
1.
In sectors where specific commitments are undertaken,
each Party shall ensure that all measures of generalapplication affecting trade in services are administered in areasonable, objective and impartial manner.

91

2.
With a view to ensuring that measures relating toqualification requirements and procedures, technicalstandards and licensing requirements and procedures, do
not constitute unnecessary barriers to trade in services, theParties shall jointly review the results of the WTO
negotiations on disciplines on such measures, pursuant to
Article VI.4 of GATS, and shall amend this Article, as
appropriate, after consultations among the Parties, to bring
the results of those negotiations into effect under thisAgreement. The Parties note that the disciplines arising fromsuch negotiations shall aim to ensure that qualification
requirements and procedures, technical standards andlicensing requirements and procedures are, inter alia:(a)based on objective and transparent criteria, suchas competence and the ability to supply theservice;(b)

not more burdensome than necessary to ensure
the quality of the service; and(c)in the case of licensing procedures, not inthemselves a restriction on the supply of theservice.

3.
In sectors in which a Party has undertaken specificcommitments under Article 3 (National Treatment), Article 4(Market Access) and Article 5 (Additional Commitments),
pending the incorporation of the disciplines referred to in
Paragraph 2, that Party shall not apply licensing andqualification requirements and technical standards that nullify
or impair such specific commitments under this Agreement ina manner which:(a)does not comply with the criteria outlined in
Paragraph 2(a), (b) or (c); and

92

(b)

could not reasonably have been expected of that
Party at the time the specific commitments in
those sectors were made.

4.
In determining whether a Party is in conformity with its
obligations under Paragraph 3(a), account shall be taken ofinternational standards of relevant international organisations
applied by that Party.6
5.
Where authorisation is required for the supply of aservice on which a specific commitment has been made, thecompetent authorities of that Party shall:(a)in the case of an incomplete application, at therequest of the applicant, identify all the additional
information that is required to complete theapplication and provide the opportunity to remedy
deficiencies within a reasonable timeframe;(b)within a reasonable period of time after thesubmission of an application considered
complete under domestic laws and regulations,inform the applicant of the decision concerning
the application;(c)at the request of the applicant, provide, without
undue delay, information concerning the status of
the application under consideration; and(d)if an application is terminated or denied, to the
maximum extent possible, inform the applicant inwriting, and without delay, the reasons for suchaction. The applicant will have the possibility ofresubmitting, at its discretion, a new application.

6.
In sectors where specific commitments regarding
professional services are undertaken, each Party shall6

The term “relevant international organisations” refers to international bodies whose
membership is open to the relevant bodies of all the Parties.

93

provide for adequate procedures to verify the competency ofprofessionals of the other Parties.
7.
Subject to its domestic laws and regulations, eachParty shall permit service suppliers of the other Parties to
use the business names under which they ordinarily trade in
the territories of the other Parties and otherwise ensure thatthe use of business names is not unduly restricted.
Article 11
Transparency
1.
The Parties recognise that transparent measures
governing trade in services are important in facilitating theability of service suppliers to gain access to, and operate in,each others’ markets. Each Party shall promote regulatorytransparency in trade in services.
Publication
2.
Each Party shall publish promptly and, except inemergency situations, at the latest by the time of their entry
into force:(a)

all relevant measures of general application
affecting trade in services; and(b)

all international agreements pertaining to, or
affecting, trade in services to which a Party is asignatory.

3.
To the extent possible, each Party shall make themeasures and international agreements of the kind referred
to in Paragraph 2 available on the internet.

94

4.
Where publication referred to in Paragraphs 2 and 3 is
not practicable, such information 7 shall be made otherwise
publicly available.
5.
To the extent provided for under its domestic legal
framework, each Party shall endeavour to provide a
reasonable opportunity for comments by interested personsof the Parties on measures referred to in Paragraph 2(a)before adoption.
Contact Points
6.
Each Party shall designate a contact point to facilitatecommunications among the Parties on any matter coveredby this Chapter. Upon the request of another Party, thecontact point shall:(a)identify the office or official responsible for the
relevant matter; and(b)assistasnecessaryinfacilitating
communications with the requesting Party withrespect to that matter.

7.
Each Party shall respond promptly to all requests byany other Party for specific information on:(a)any measures referred to in Paragraph 2(a) orinternational agreements referred to in Paragraph2(b); and(b)

any new, or any changes to existing, laws,
regulations or administrative guidelines whichsignificantly affect trade in services covered by
the Party’s specific commitments under this7

For greater certainty, the Parties agree that such information may be published ineach Party’s chosen language.

95

Chapter, whether or not the other Party has beenpreviously notified of the new or changed law,regulation or administrative guideline.
Article 12
Development and Application of Regulations
Administrative Processes
1.
With a view to administering in a consistent, impartial
and reasonable manner its laws, regulations, procedures andadministrative rulings of general application affecting trade inservices, each Party shall ensure that its administrative
agencies, in applying such laws, regulations, procedures andadministrative rulings to particular services or service
suppliers of another Party in specific cases throughadministrative processes, including adjudication, rule-making,licensing, determination and approval processes:(a)to the extent provided under its domestic legal
framework, and where possible, provide service
suppliers of the other Party that are directly
affected by an administrative process withreasonable notice that the process is taking
place;(b)to the extent provided under its domestic legal
framework, endeavour to afford such service
suppliers with reasonable opportunity to present
facts and arguments in support of their positions
prior to any final administrative action, when time,
the nature of the process and the public interest
permit; and(c)follow procedures that are in accordance with its
laws.

96

Review and Appeal
2.
Each Party shall maintain judicial, arbitral oradministrative tribunals or procedures for the purpose of theprompt review 8 , and, where warranted, correction of final
administrative actions resulting from the processes covered
by Paragraph 1. Where such procedures or tribunals are notindependent of the agency entrusted with the administrative
action concerned, each Party shall ensure that the tribunals
or procedures provide for an objective and impartial review.
3.
Each Party shall ensure that, in any such tribunal orunder any such procedures, the parties to any proceedings
are provided with the right to:(a)a reasonable opportunity to support or defend
their respective positions; and(b)a decision in accordance with the Party’s laws.

4.
Each Party shall ensure, subject to appeal or further
review as provided in its law, that any decision referred to in
Paragraph 3(b) shall be implemented in accordance with its
laws.
Article 13
Disclosure of Confidential Information
Nothing in this Chapter shall be construed as requiring a
Party to provide to the other Parties confidential information
the disclosure of which would impede law enforcement orotherwise be contrary to the public interest or which would
prejudice the legitimate commercial interests of particularjuridical persons, public or private.

8

For avoidance of doubt, “review” includes merits review only where provided forunder the Party’s law.

97Article 14
Monopolies and Exclusive Service Suppliers
1.
Each Party shall ensure that any monopoly supplier ofa service in its territory does not, in the supply of themonopoly service in the relevant market, act in a mannerinconsistent with that Party’s obligations under Article 3
National Treatment) and Article 4 (Market Access).
2.
Where a Party’s monopoly supplier competes, either
directly or through an affiliated company, in the supply of aservice outside the scope of its monopoly rights and which is
subject to that Party’s specific commitments, the Party shallensure that such a supplier does not abuse its monopoly
position to act in its territory in a manner inconsistent withsuch commitments.
3.
If a Party has a reason to believe that a monopoly
supplier of a service of any other Party is acting in a mannerinconsistent with Paragraph 1 or 2, it may request the Party
establishing, maintaining or authorising such supplier toprovide specific information concerning the relevant
operations.
4.
This Article shall also apply to cases of exclusive
service suppliers, where a Party, formally or in effect:(a)authorises or establishes a small number ofservice suppliers; and(b)substantially prevents competition among those
suppliers in its territory.
Article 15
Business Practices

1.
Parties recognise that certain business practices ofservice suppliers, other than those falling under Article 1498

(Monopolies and Exclusive Service Suppliers), may restrain
competition and thereby restrict trade in services.
2.
Each Party shall, at the request of any other Party,
enter into consultations with a view to eliminating practices
referred to in Paragraph 1. The Party addressed shall accord
full and sympathetic consideration to such a request andshall co-operate through the supply of publicly available nonconfidential information available to the requesting Party.
The requested Party may also provide other information
available to the requesting Party, subject to its domestic law
and to the conclusion of satisfactory agreement concerning
the safeguarding of its confidentiality by the requesting Party.
Article 16
Recognition
1.
For the purpose of the fulfilment, in whole or in part, of
its standards or criteria for the authorisation, licensing or
certification of service suppliers, and subject to therequirements of Paragraph 3, a Party may recognise theeducation or experience obtained, requirements met,
licences or certifications granted in a particular country. Such
recognition, which may be achieved through harmonisationor otherwise, may be based upon an agreement or
arrangement with the country concerned or may be accorded
autonomously.
2.
A Party that is a party to an agreement or arrangementof the type referred to in Paragraph 1, whether existing or
future, shall afford adequate opportunity for other interested
Parties to negotiate their accession to such an agreement or
arrangement or to negotiate comparable ones with it. Wherea Party accords recognition autonomously, it shall afford
adequate opportunity for any other Party to demonstrate that
education, experience, licences, or certifications obtained or
requirements met in that other Party’s territory should berecognised.

99

3.
A Party shall not accord recognition in a manner which
would constitute a means of discrimination between otherParties in the application of its standards or criteria for theauthorisation, licensing or certification of service suppliers, ora disguised restriction on trade in services.
4.
Where appropriate, recognition should be based on
multilaterally agreed criteria. In appropriate cases, Parties
shall work in co-operation with relevant inter-governmental
andnon-governmentalorganisations
towards
theestablishment and adoption of common international
standards and criteria for recognition and common
international standards for the practice of relevant services
trades and professions.
5.
Each Party shall encourage competent bodies in its
territory to enter into negotiations for agreements or
arrangements on recognition of professional qualification
requirements, qualification procedures, licensing or
registration requirements, and licensing or registration
procedures with a view to the achievement of early outcomes.
Article 17
Payments and Transfers
1.
Except under the circumstances envisaged in Article 4(Measures to Safeguard the Balance of Payments) ofChapter 15 (General Provisions and Exceptions), a Party
shall not apply restrictions on international transfers or
payments for current transactions relating to its specificcommitments.
2.
Nothing in this Chapter shall affect the rights andobligations of any of the Parties as members of theInternational Monetary Fund under the IMF Articles ofAgreement, including the use of exchange actions which arein conformity with the IMF Articles of Agreement, provided
that a Party shall not impose restrictions on any capitaltransactions inconsistent with its specific commitments

100regarding such transactions, except under Article 4(Measures to Safeguard the Balance of Payments) ofChapter 15 (General Provisions and Exceptions) or at therequest of the International Monetary Fund.
Article 18
Subsidies1.
Notwithstanding Article 1.4(b) (Scope and Coverage),
the Parties shall review the issue of disciplines on subsidies
related to trade in services in light of any disciplines agreed
under Article XV of GATS.
2.
Parties recognise that, in certain circumstances,subsidies may have distortive effects on trade in services.
Any Party which considers that it is adversely affected by a
subsidy of another Party may request consultations with that
Party on such matters. Such request shall be accorded
sympathetic consideration.
Article 19
Safeguard Measures
1.
The Parties note the multilateral negotiations pursuant
to Article X of GATS on the question of emergency
safeguard measures based on the principle of nondiscrimination. Upon the conclusion of such multilateralnegotiations, the Parties shall conduct a review for the
purpose of discussing appropriate amendments to thisAgreement so as to incorporate the results of such
multilateral negotiations.
2.
In the event that the implementation of thecommitments made in this Agreement causes substantial
adverse impact to a service sector of a Party before theconclusion of the multilateral negotiations referred to in
Paragraph 1, the affected Party may request consultations
with the other Party or Parties. The requested Party or
Parties shall enter into consultations with the requesting101Party on the commitments that the requested Party or
Parties consider may have caused substantial adverse
impact and on the possibility of the requesting Party adopting
any measure to alleviate such impact. The requesting Party
shall notify all the other Parties of their request for
consultations under this Paragraph.
3.
Any measures taken pursuant to Paragraph 2 shall bemutually agreed by the Parties concerned.
4.
The consulting Parties shall notify the results of theconsultations to all other Parties as soon as practicable andby no later than the next meeting of the Services Committee
established pursuant to Article 24 (Committee on Trade inServices) following the conclusion of consultations.
Article 20
Increasing Participation for Newer ASEAN Member
StatesIn order to increase the benefits of this Chapter for the newer
ASEAN Member States, and in accordance with theobjectives of and the Preamble to this Agreement and theobjectives of Chapter 12 (Economic Co-operation), theParties recognise the importance of according special anddifferential treatment to the newer ASEAN Member Statesand facilitating their participation in this Chapter throughnegotiated specific commitments relating to:(a)strengthened domestic services capacity and its
efficiency and competitiveness, inter alia, throughaccess to technology on a commercial basis;(b)

improved access to distribution channels andinformation networks;(c)commitments in sectors of export interest to
newer ASEAN Member States; and

102

(d)

recognising that commitments by each newer
ASEAN Member State may be made inaccordance with its individual stage ofdevelopment.
Article 21
Denial of Benefits

A Party may deny the benefits of this Chapter:(a)to the supply of any service, if it establishes thatthe service is supplied from or in the territory of a
non-Party;(b)in the case of the supply of a maritime transport
service, if it establishes that the service is
supplied:

(c)

(i)

by a vessel registered under the laws of a
non-Party, and(ii)

by a person of a non-Party which operates
and/or uses the vessel in whole or in part;to a service supplier, that is a juridical person, if it
establishes that it is not a service supplier ofanother Party.

Article 22
Treatment and Protection of Commercial Presence
1.
Chapter 11 (Investment) does not apply to measures
adopted or maintained by a Party to the extent that they arecovered by this Chapter.
2.
Notwithstanding Paragraph 1, the following Articles andSection of Chapter 11 (Investment) apply, mutatis mutandis,
to measures affecting the supply of services by a service

103supplier of a Party through commercial presence in the
territory of another Party:(a)Article 6 (Treatment of Investment);(b)

Article 7 (Compensation for Losses);(c)

Article 8 (Transfers);(d)

Article 9 (Expropriation and Compensation);(e)

Article 10 (Subrogation); and(f)Section B (Investment Disputes between a Party
and an Investor).
Article 23
Miscellaneous Provisions

1.
The GATS Annex on Telecommunications shall beincorporated into and shall form part of this Agreement,
mutatis mutandis.
2.
Additional provisions on financial services andtelecommunications are set out in this Chapter’s Annexes.
Article 24
Committee on Trade in Services
1.
The Parties hereby establish a Committee on Trade inServices (Services Committee), consisting of representativesof the Parties.
2.

The Services Committee’s functions shall be:(a)

to conduct reviews ofaccordance with Article
Commitments);

104

commitments
6 (Review

in
of

(b)

if the multilateral negotiations referred to in Article
19.1 (Safeguard Measures) have not concluded
within three years from entry into force of thisAgreement, to enter into discussion on thequestion of emergency safeguard measures
based on the principle of non-discrimination forthe purpose of considering appropriate
amendments to this Chapter;(c)to enter into discussions on the application of
most-favoured-nation treatment to trade inservices for the purpose of considering
appropriate amendments to this Chapter, inconjunction with the first review of commitments
under Article 6 (Review of Commitments);(d)to review the implementation of this Chapter;(e)

to consider any other matters identified by theParties; and(f)to report to the FTA Joint Committee as required.

3.
The Services Committee shall conclude thediscussions referred to in Paragraph 2(a) to (c) within five
years of entry into force of this Agreement, unless the Parties
agree otherwise.
4.
The Services Committee shall meet as mutually
determined by the Parties as required under this Article andArticle 6 (Review of Commitments). Meetings may be
conducted in person, or by any other means as mutually
determined by the Parties.

105

ANNEX ON FINANCIAL SERVICES
Article 1
Scope and Definitions
1.
This Annex applies to measures affecting the supply offinancial services. Reference to the supply of a financial
service in this Annex shall mean the supply of a service as
defined in Article 2(s) (Definitions) of Chapter 8 (Trade inServices).
2.
For the purposes of Article 2(n) (Definitions) of Chapter
8 (Trade in Services), “services supplied in the exercise ofgovernmental authority” means the following:(a)activities conducted by a central bank ormonetary authority or by any other public entity in
pursuit of monetary or exchange rate policies;(b)

activities forming part of a statutory system ofsocial security or public retirement plans; or(c)other activities conducted by a public entity forthe account or with the guarantee or using thefinancial resources of the government.

3.
For the purposes of Article 2(n) (Definitions) of Chapter
8 (Trade in Services), if a Party allows any of the activities
referred to in Paragraph (2)(b) or (c) to be conducted by its
financial service suppliers in competition with a public entity
or a financial service supplier, “services” shall include suchactivities.
4.
Article 2(q) (Definitions) of Chapter 8 (Trade inServices) shall not apply to services covered by this Annex.

106Article 2
Definitions
For the purposes of this Annex:(a)a financial service is any service of a financial
nature offered by a financial service supplier of a
Party. Financial services include all insurance
and insurance-related services, and all banking
and other financial services (excluding insurance).
Financial services include the following activities:
Insurance and insurance-related services(i)Direct insurance (including co-insurance):(A)

life; and(B)

non-life;(ii)

Reinsurance and retrocession;(iii)

Insuranceintermediation,brokerage and agency; and(iv)

Services auxiliary to insurance, such as
consultancy, actuarial, risk assessment andclaim settlement services.

such

as

Banking and other financial services (excluding
insurance)(v)

Acceptance of deposits andrepayable funds from the public;(vi)

Lending of all types, including consumer
credit, mortgage credit, factoring andfinancing of commercial transaction;

107

other

(vii) Financial leasing;(viii) All payment and money transmission
services, including credit, charge and debit
cards, travellers’ cheques and bankers
drafts;(ix)

Guarantees and commitments;(x)

Trading for own account or for account ofcustomers, whether on an exchange, in an
over-the-counter market or otherwise, thefollowing:

(xi)

(A)

money market instruments (including
cheques,bills,
certificatesof
deposits);(B)

foreign exchange;(C)

derivative products including, but notlimited to, futures and options;(D)

exchange rate and interest rate
instruments, including products suchas swaps, forward rate agreements;(E)transferable securities; and(F)other negotiable instruments andfinancial assets, including bullion;

Participation in issues of all kinds of
securities, including underwriting andplacement as agent (whether publicly or
privately) and provision of services related
to such issues;108

(xii) Money broking;(xiii) Asset management, such as cash or
portfolio management, all forms ofcollective
investment
management,
pension fund management, custodial,
depository and trust services;(xiv) Settlement and clearing services forfinancial assets, including securities,
derivative products, and other negotiable
instruments;(xv) Provision and transfer of financial
information, and financial data processing
and related software by suppliers of otherfinancial services; and(xvi) Advisory, intermediation and other auxiliary
financial services on all the activities listed
in Subparagraphs (v) to (xv), including
credit reference and analysis, investment
and portfolio research and advice, adviceonacquisitions
andon
corporate
restructuring and strategy;(b)a financial service supplier means any natural
or juridical person of a Party wishing to supply or
supplying financial services but the term
“financial service supplier” does not include apublic entity;(c)public entity means:(i)a government, a central bank or amonetary authority, of a Party, or an entity
owned or controlled by a Party, that isprincipally engaged in carrying out
governmental functions or activities for109

governmental purposes, not including an
entity principally engaged in supplying
financial services on commercial terms; or
(ii)

(d)

a private entity, performing functions
normally performed by a central bank ormonetary authority, when exercising thosefunctions; andself-regulatory organisation:(i)in the case of Australia and New Zealand,means any non-governmental body,
including any securities or futures
exchange or market, clearing or payment
settlement agency, or other organisation or
association that exercises its own ordelegated
regulatoryorsupervisory
authority over financial service suppliers or
financial institutions; and(ii)

in the case of ASEAN Member States,
means any non-governmental body,
including any securities or futures
exchange or market, clearing or payment
settlement agency, other organisation or
association that is recognised by legislation
as a self-regulatory organisation andexercises
regulatoryorsupervisory
authority over financial service suppliers or
financial institutions pursuant to legislation
or delegation from central, regional or local
governments or authorities.
Article 3
Domestic Regulation

1.
Notwithstanding any other provision of this Agreement,a Party shall not be prevented from taking measures for110

prudential reasons, including for the protection of investors,
depositors, policy holders or persons to whom a fiduciary
duty is owed by a financial service supplier, or to ensure theintegrity and stability of the financial system or to ensure thestability of the exchange rate1 subject to the following:(a)where such measures do not conform with theprovisions of this Agreement, they shall not be
used as a means of avoiding the Party’s
commitmentsorobligations
under
this
Agreement;(b)

for measures to ensure the stability of theexchange rate such measures shall be no morethan necessary and phased out when conditions
no longer justify their institution or maintenance;
and

(c)

for measures to ensure the stability of theexchange rate such measures shall be applied
on a most-favoured-nation basis.

2.
Nothing in this Agreement shall be construed to requirea Party to disclose information relating to the affairs andaccounts of individual customers or any confidential or
proprietary information in the possession of public entities.
Article 4
Recognition
1.
A Party may recognise prudential measures of any
international standard setting body, another Party, or a nonParty in determining how the Party's measures relating tofinancial services shall be applied. Such recognition, which
may be achieved through harmonisation or otherwise, may
be based upon an agreement or arrangement with the1

The measures to ensure the stability of the exchange rate shall not be adopted or
maintained for the purpose of protecting a particular sector.

111

international standard setting body, another Party, or a nonParty concerned or may be accorded autonomously.
2.
A Party that is a party to such an agreement or
arrangement referred to in Paragraph 1, whether future orexisting, shall afford adequate opportunity for otherinterested Parties to negotiate their accession to suchagreements or arrangements, or to negotiate comparable
ones with it, under circumstances in which there would beequivalent regulation, oversight, implementation of such
regulation, and, if appropriate, procedures concerning thesharing of information between the parties to the agreement
or arrangement.
3.
Where a Party accords recognition autonomously, it
shall afford adequate opportunity for any other Party todemonstrate that such circumstances as referred to in
Paragraph 2 exist.
Article 5
Regulatory Transparency
1.
The Parties recognise that transparent measures
governing the activities of financial institutions and crossborder financial service suppliers are important in facilitating
their ability to gain access to and operate in each other’smarket.
2.
Each Party shall ensure that measures of generalapplication adopted or maintained by a Party are promptly
published or otherwise made publicly available.2
3.
Each Party shall take such reasonable measures as
may be available to it to ensure that the rules of generalapplication adopted or maintained by self-regulatory2

For greater certainty, the Parties agree that such information may be published ineach Party’s chosen language.

112

organisations 3 of the Party are promptly published orotherwise made publicly available.4
4.
Each Party shall maintain or establish appropriate
mechanisms for responding to inquiries from interested
persons of another Party regarding measures of generalapplication to which this Annex applies.5
5.
Each Party’s regulatory authorities shall use its best
endeavours to make available to interested persons ofanotherParty
theirrequirements,
includingany
documentation required, for completing applications relating
to the supply of financial services.
6.
On the request of an applicant in writing, regulatory
authorities of a Party shall inform the applicant of the statusof its application in writing. If an authority requires additional
information from the applicant, it shall notify the applicant
without undue delay.
7.
Each Party’s regulatory authorities shall makeadministrative decisions on a completed application of afinancial service supplier of another Party seeking to supply
a financial service in that Party's territory within 180 days andshall notify the applicant of the decision in writing without
undue delay:(a)an application shall not be considered complete
until all relevant proceedings are conducted andthe regulatory authorities consider all necessary
information is received;

3This Paragraph only applies to a Party when that Party has established selfregulatory organisations.
4

For greater certainty, the Parties agree that such information may be published ineach Party’s chosen language.

5

The Parties confirm their shared understanding that interested persons in this
Article should only be persons whose direct financial interest could be potentiallyaffected by the adoption of the regulations of general application.

113

(b)

where it is not practicable for a decision to bemade within 180 days, the regulatory authority
shall notify the applicant without delay and shallendeavour to make the decision within areasonable time thereafter.

8.
On the request of an unsuccessful applicant in writing,a regulatory authority that has denied an application shallendeavour to inform the applicant of the reasons for denial of
the application in writing.
Article 6
Financial Services Exceptions
Nothing in this Chapter shall be construed to prevent the
adoption or enforcement by a Party of measures necessary
to secure compliance with laws or regulations that are notinconsistent with this Chapter, including those relating to theprevention of deceptive and fraudulent practices or to deal
with the effects of a default on financial services contracts,
subject always to the requirement that such measures are
not applied in a manner which would constitute a means ofarbitrary or unjustifiable discrimination between countries
where like conditions prevail, or a disguised restriction on
investment in financial institutions or trade in financial
services.
Article 7
Transfers of Information and Processing of Information
1.

A Party shall not take measures that:(a)prevent transfers of information, includingtransfers of data by electronic means, necessary
for the conduct of the ordinary business of afinancial service supplier;

114

2.

(b)

prevent the processing of information necessary
for the conduct of the ordinary business of afinancial service supplier; or(c)prevent transfers of equipment necessary for the
conduct of the ordinary business of a financial
service supplier, subject to importation rules
consistent with international agreements.

Nothing in Paragraph 1:(a)restricts the right of a Party to protect personaldata, personal privacy and the confidentiality of
individual records and accounts including inaccordance with its domestic laws andregulations so long as such right shall not be
used as a means of avoiding the Party’s
commitmentsorobligations
under
this
Agreement;(b)

prevents a regulator of a Party for regulatory or
prudential reasons from requiring a financial
service supplier in its territory to comply withdomestic regulation in relation to data
management
andstorageandsystemmaintenance, as well as to retain within its
territory copies of records; or(c)shall be construed to require a Party to allow thecross-border supply or the consumption abroadof services in relation to which it has not madespecific commitments, including to allow nonresident suppliers of financial services to supply,
as a principal, through an intermediary or as anintermediary, the provision and transfer offinancialinformation
andfinancial
data
processing as referred to in Article 2(a)(xv)(Definitions).

115Article 8
Dispute Settlement
Members of arbitral tribunals established pursuant toChapter 17 (Consultations and Dispute Settlement) for
disputes on prudential issues and other financial mattersshall have the necessary expertise relevant to the specificfinancial service under dispute.

116

ANNEX ON TELECOMMUNICATIONSArticle 1
Scope and Coverage
1.
This Annex applies to measures by a Party affecting
trade in public telecommunications transport networks andservices.
2.
Notwithstanding Paragraph 1, this Annex shall not
apply to measures by a Party affecting the distribution ofbroadcasting and audio-visual services, as defined in eachParty’s domestic legal framework.
3.
Nothing in this Annex shall be construed to require a
Party to allow the supply of public telecommunicationstransport networks or services in relation to which it has notmade specific commitments under this Chapter.
Article 2
Definitions
For the purposes of this Annex:(a)co-location (physical) means access to spacein order to install, maintain or repair equipment at
premises owned or controlled and used by amajor
suppliertosupplypublictelecommunications transport services;(b)

cost-oriented means based on cost, and may
include a reasonable profit, and may involve
different cost methodologies for different facilities
or services;(c)essential facilities means facilities of a public
telecommunications transport network or service
that:

117

(d)

(i)

are exclusively or predominantly provided
by a single or limited number of suppliers;
and

(ii)

cannot feasibly be economically or
technically substituted in order to provide aservice;facilities-based suppliers means suppliers of
public telecommunications transport networks orservices that:(i)are licensed carriers in Australia;(ii)

are classified as Access Seekers inaccordance with the Telecommunications
Act 2001 as amended from time to time in
New Zealand;(iii)

are the Infrastructure Provider for the
Telecommunication
Industry(InTi)
licensees in Brunei Darussalam;(iv)

are licensed as network facility provider
and licensed network services provider
under domestic law in Cambodia;(v)

are licensed as telecommunication network
provider in Indonesia;(vi)

are authorised to establish an enterprise toprovide telecommunications service under
the Telecommunications Act of 2001 in Lao
PDR;(vii) are licensed as Network Facilities Provider
and Network Services Provider in Malaysia;

118

(viii) are telecommunications operators licensed
as network facility provider and/or network
service provider; and operators authorisedby the Ministry of Communications, Posts
and Telegraphs to provide facility based
services in Myanmar;(ix)

are licensed public telecommunications
entities as defined in the Public
Telecommunications Policy Act of thePhilippines;(x)

are facilities-based operators in Singapore;(xi)

are duly licensed under domestic law as
facilities-based supplier in Thailand; and(xii) are facilities-based operators duly licensed
in Viet Nam;(e)interconnection means linking with suppliers
providing public telecommunications transport
networks or services in order to allow the users of
one supplier to communicate with users ofanother supplier and to access services provided
by another supplier;(f)leased circuits 1 means telecommunications
facilities between two or more designated points
that are set aside for the dedicated use of, oravailability to, a particular user;(g)major supplier means a supplier which has theability to materially affect the terms ofparticipation, having regard to price and supply,in the relevant market for the supply of public

1

In the case of Thailand, “leased circuits” means telecommunications facilities
between two designated points that are set aside for the dedicated use of, oravailability to, a particular user.

119telecommunications transport networks
services, or parts thereof, as a result of:(i)control over essential facilities; or(ii)

use of its position in the market;

or

(h)

non-discriminatory means treatment no lessfavourable than that accorded to any other userof like public telecommunications transport
networks or services in like circumstances;(i)

public telecommunications transport network
means
the
publictelecommunications
infrastructure which permits telecommunications
between and among defined network termination
points;(j)public telecommunications transport service
means any telecommunications transport service
required, explicitly or in effect, by a Party to beoffered to the public generally. Such services
may include, inter alia, telegraph, telephone anddata transmission typically involving the real-timetransmission of customer-supplied information
between two or more points without any end-toend change in the form or content of thecustomer’s information;(k)telecommunications means the transmission
and reception of signals by any electromagnetic
means;(l)telecommunications regulatory body means
any body or bodies in the territory of a Party
which is or are responsible, under the Party’s
domestic legal framework, for the regulation of
telecommunications; and

120

(m)

user means service consumers and service
suppliers.
Article 3
Transitional Arrangements

Noting each Party’s different stage of development, andnoting each Party’s commitments under GATS, a Party may
delay the application of Article 4 (Competitive Safeguards),
Article 6 (Interconnection), Article 7 (Co-location), Article 8(Leased Circuits Services) and Article 9.2 (Resolution of
Disputes) in accordance with the timetable set out in thisAnnex’s Appendix on Transitional Arrangements.
Article 4Competitive Safeguards
1.
Subject to Article 3 (Transitional Arrangements), eachParty shall prevent suppliers of public telecommunicationstransport networks or services who, alone or together, aremajor suppliers in its territory, from engaging in or continuinganti-competitive practices.
2.
The anti-competitive practices referred to in this Article
shall include:(a)engaging in anti-competitive cross-subsidisation;(b)using information obtained from competitors with
anti-competitive results; and(c)not making available to other suppliers of
telecommunications transport networks orservices, in a timely fashion, technical information
about essential facilities or commercially relevant
information, which is necessary for suchsuppliers to provide public telecommunicationstransport networks or services.

121Article 5
Licensing1.
Each Party shall ensure that, where a licence isrequired, all measures relating to the licensing of suppliers of
public telecommunications transport networks or services in
its territory are published or, where publication is notpracticable, otherwise made publicly available, including:(a)circumstances in which a licence is required;(b)licence application procedures;(c)criteria used to assess licence applications;(d)standard terms and conditions applicable tolicences;(e)the period of time normally required to reach adecision concerning a licence application;(f)the cost of and/or fees for applying for and/or
obtaining a licence; and(g)the period of validity of a licence.

2.
Each Party shall ensure that the reasons for the denialof a licence are made known to an applicant upon request.
Article 6
Interconnection2
1.
Subject to Article 3 (Transitional Arrangements), eachParty shall ensure that major suppliers in its territory provide
2
For the sake of clarity, nothing in this Article shall be construed to require Thailand
or Viet Nam to allow cross-border supply of public telecommunications transport
networks or services in relation to which it has not made specific commitments under
this Chapter.

122

interconnection to suppliers of public telecommunicationstransport networks or services of other Parties at any
technically feasible point in the major supplier’s network.
Such interconnection shall be:(a)provided in a timely fashion, on terms andconditions (including technical standards andspecifications), and at cost-oriented rates, thatare reasonable (having regard to economic
feasibility), non-discriminatory and transparent;(b)sufficiently unbundled, such that the supplier ofpublic telecommunications transport networks orservices seeking interconnection need not pay for
network components or facilities that it does not
require for the service to be provided;(c)of a quality no less favourable than that provided
for the major supplier’s own like services, or for
like services of non-affiliated service suppliers, orfor its subsidiaries or other affiliates; and(d)provided upon request, at points in addition to the
network termination points offered to the majorityof users, subject to charges that reflect the costof construction of necessary additional facilities.

2.
Each Party shall ensure that the terms, conditions andrates (including technical standards and specifications) forinterconnection between major suppliers in its territory andsuppliers of public telecommunications transport networks orservices of other Parties are able to be established (at least):(a)through commercial negotiation; or(b)by reference to a set of standard terms,
conditions and rates that the major supplier offers
generally to other suppliers of public
telecommunications transport networks or123

services, and that are approved or set out by atelecommunications regulatory body.
3.
Each Party shall ensure that the procedures forinterconnection with major suppliers in its territory are
published or otherwise made publicly available.
Article 7
Co-location
1.
Subject to Article 3 (Transitional Arrangements), eachParty shall ensure that major suppliers in its territory:(a)provide to suppliers of public telecommunicationstransport networks or services of other Parties
that are facilities-based suppliers in the territoryof that Party, physical co-location of equipment
necessary for interconnection; and(b)in situations where physical co-location referred
to in Subparagraph (a) is not practical fortechnical reasons or because of space limitations,
co-operate
withsuppliersofpublictelecommunications transport networks orservices of other Parties that are facilities-based
suppliers in the territory of that Party, to find andimplement a practical and commercially viable
alternative solution.3

2.
Each Party shall ensure that major suppliers in its
territory provide the physical co-location or practical andcommercially viable alternative solution referred to in
Paragraph 1 in a timely fashion and on terms and conditions(including technical standards and specifications), and at
3

Such solutions may include:(a) permitting facilities-based suppliers to locate equipment in a nearbybuilding and to connect such equipment to the major supplier’s network;(b) conditioning additional equipment space or virtual co-location;(c) optimising the use of existing space; and(d) finding adjacent space.

124

rates, that are reasonable (having regard to economic
feasibility), non-discriminatory and transparent.
3.
Each Party may determine, in accordance with its
domestic laws and regulations, the locations at which it
requires major suppliers in its territory to provide the physicalco-location or the practical and commercially viable
alternative solutions referred to in Paragraph 1.
Article 8
Leased Circuits Services
Subject to Article 3 (Transitional Arrangements), each Party
shall, unless it is not technically feasible, ensure that major
suppliers in its territory make leased circuits services (thatare public telecommunications transport services) available
to suppliers of public telecommunications transport networks
or services of other Parties in a timely fashion and on terms
and conditions (including technical standards andspecifications), and at rates, that are reasonable (having
regard to economic feasibility), non-discriminatory andtransparent.
Article 9
Resolution of Disputes
1.
Each Party shall ensure that a supplier of public
telecommunications transport networks or services ofanother Party who requests interconnection with a major
supplierthat
isauthorised
tosupplypublictelecommunications transport networks or services in the
Party’s territory has recourse to a telecommunications
regulatory body to resolve disputes in relation to suchinterconnection, including in relation to terms, conditions or
rates:(a)within a reasonable period of time, according to aprocedure that has been published or otherwise
made publicly available; and

125

(b)

at the request of the affected supplier of public
telecommunications transport networks orservices of the other Party.

2.
Subject to Article 3 (Transitional Arrangements), each
Party
shall
ensurethatasupplierofpublictelecommunications transport networks or services ofanother Party who requests co-location with or leased
circuits services from a major supplier that is authorised tosupply public telecommunications transport networks orservices in the Party’s territory has recourse to atelecommunications regulatory body or a competition
regulatory body to address issues in relation to such colocation or leased circuits services, including in relation toterms, conditions or rates:(a)within a reasonable period of time, according to aprocedure that has been published or otherwise
made publicly available; and(b)at the request of the affected supplier of public
telecommunications transport networks orservices of the other Party.

3.
Each Party shall ensure that its telecommunications
regulatory body or bodies provide, upon request by asupplier of public telecommunications transport networks orservices of another Party, a written explanation of any
decision by a telecommunications regulatory body that
affects the supplier of public telecommunications transport
networks or services of the other Party, unless such
explanation is otherwise publicly available.
Article 10
Transparency
Each Party shall endeavour to make information that the
Party is required to publish or make publicly available

126

pursuant to this Annex available on the internet.
Article 11
Telecommunications Regulatory Body
1.
Each Party shall establish or maintain, as part of its
domestic legal framework, a telecommunications regulatorybody.
2.
Each Party shall ensure that every telecommunications
regulatory body that it establishes or maintains is separate
from, and not accountable to, any supplier of public
telecommunications transport networks or services.
3.
Each Party shall ensure that the functions andresponsibilities of the telecommunications regulatory body or
bodies, which shall include enforcement of the commitments
set out in Article 6 (Interconnection), and all of its decisionmaking powers, shall be set out in the Party’s domestic laws
or regulations.
4.
Each Party shall ensure that the decisions of, and theprocedures used by, its telecommunications regulatory bodyor bodies are impartial with respect to all interested persons.
5.
Each Party shall ensure that any supplier of public
telecommunications transport networks or services ofanother Party that is aggrieved, or whose interests areadversely affected by a determination or decision of atelecommunications regulatory body of that Party, may
obtain review of the determination or decision by anadministrative, arbitral or judicial tribunal or authority or
according to administrative, arbitral or judicial procedures.
Where such procedures are not independent of thetelecommunications regulatory body, the Party shall ensurethat the procedures in fact provide for an objective andimpartial review.

127Article 12
Universal Service
Each Party has the right to define the kind of universal
service obligation it wishes to maintain. Such obligations,
including any cross subsidisation policy set out under eachParty’s domestic laws, shall not be regarded as anticompetitive per se, provided they are administered in atransparent, non-discriminatory and competitively neutral
manner and are not more burdensome than necessary forthe kind of universal service defined by the Party.
Article 13
Allocation and Use of Scarce Resources4
1.
Each Party shall administer its procedures for the
allocation and use of scarce resources, including frequencies
and numbers, in an objective, timely, transparent and nondiscriminatory manner.
2.
Each Party shall publish or otherwise make publicly
available the current state of allocated frequency bands.5
3.
Parties are not required to publish identification of
frequencies allocated for specific government uses, or tootherwise make them publicly available.

4

Decisions on the allocation and assignment of spectrum and frequency
management are not measures that are per se inconsistent with Article 4 (Market
Access) of Chapter 8 (Trade in Services). Accordingly, each Party retains the ability
to exercise its spectrum and frequency management policies, which may affect the
number of service suppliers, provided that this is done in a manner that is consistent
with this Chapter. Each Party also retains the right to allocate frequency bands taking
into account existing and future needs.

5Parties are not required to publish information about the allocation of individual
frequencies to specific licencees.

128

APPENDIX ON TRANSITIONAL ARRANGEMENTS
Party

Article 4

Article 6

Article 7

Article 8

Article 9.2

BruneiObligation to apply
from 1 January 2009.

Obligation to apply
from 1 January 2009.

Obligation to apply
from 1 January 2009.

Obligation to apply
from 1 January 2009.

Obligation to apply
from 1 January 2009.

Obligation to apply
from no later than 3
years after the date ofentry into force of thisAgreement.

Obligation to apply
from no later than 1
year from the date ofentry into force of thelaw onTelecommunication.
Cambodia shallendeavour to ensurethat the Law on
Telecommunicationenters into force
within 3 years of entry
into force of thisAgreement.

Obligation to apply
from the date ofapplication of Article 7(for co-location) and 8(for leased circuit
services)
respectively.

Obligation to apply
from three years after
the date of:(i) Laos’ accession to
the WTO; or

Obligation to apply
from three years after
the date of:(i) Laos’ accession to
the WTO; or

Obligation to apply
from three years after
the date of:(i) Laos’ accession to
the WTO; or(ii) entry into force of(ii) entry into force of(ii) entry into force ofCambodia

Laos

Obligation to apply
from:(i) Three years after
the date of Laos’accession to the
WTO; orObligation to apply
from:(i) Three years after
the date of Laos’accession to the
WTO; or129

PartyMyanmar

Article 4

Article 6

Article 7

Article 8

Article 9.2(ii) three years after
the date of entry
into force ofdomestic
legislation
implementing thisobligation;(ii) three years after
the date of entry
into force ofdomestic
legislation
implementing thisobligation;

domestic
legislation
implementing thisobligation;

domestic
legislation
implementing thisobligation;

domestic
legislation
implementing thisobligation;

whichever is theearlier.

whichever is theearlier.

Obligation to apply
from the date ofcompletion of thereview of current
sector policy andregulatory
arrangement allowing
multi-telco
participation intelecommunications
services

Obligation to apply
from the date ofcompletion of thereview of current
sector policy andregulatory
arrangement allowing
multi-telco
participation intelecommunications
services

whichever is theearlier.

whichever is theearlier.

whichever is theearlier.

Obligation to apply
from the date ofcompletion of thereview of current
sector policy andregulatory arrangement allowing multitelco participation intelecommunications
services

Obligation to apply
from the date ofcompletion of thereview of current
sector policy andregulatory arrangement allowing multitelco participation intelecommunications
services

Obligation to apply
from the date the new
Telecommunications
Law comes into force.

130

PartyArticle 4

Article 6

Article 7

Article 8

Article 9.2

Singapore

Commits to apply this
Article upon the entry
into force of thisAgreement.

Commits to apply this
Article on a reciprocal
basis, i.e. Singapore
will only givecommitments relating
to this Article toanother Party, if andwhen the samecommitments havebeen made by that
Party.

Commits to apply this
Article on a reciprocal
basis, i.e. Singapore
will only givecommitments relating
to this Article toanother Party, if andwhen the samecommitments havebeen made by that
Party.

Commits to apply this
Article on a reciprocal
basis, i.e. Singapore
will only givecommitments relating
to this Article toanother Party, if andwhen the samecommitments havebeen made by that
Party.

Commits to apply this
Article on a reciprocal
basis, i.e. Singapore
will only givecommitments relating
to this Article toanother Party, if andwhen the samecommitments havebeen made by that
Party.

Thailand1

Obligation to apply
after the expiration of
the last concession
contract.

Obligation to apply
after the expiration of
the last concession
contract.

Obligation to apply
after the expiration of
the last concession
contract.

Obligation to apply
after the expiration of
the last concession
contract.

Obligation to apply
from the date of entry
into force of thisAgreement.

To apply three years
after these obligations
are duly reflected inViet Nam’s domestic
laws and regulations.

To apply three years
after these obligations
are duly reflected inViet Nam’s domestic
laws and regulations.

To apply three years
after these obligations
are duly reflected inViet Nam’s domestic
laws and regulations.

Viet Nam

1

The last concession contract will be expired in the year 2018.

131

CHAPTER 9
MOVEMENT OF NATURAL PERSONSArticle 1
Objectives
The objectives of this Chapter are to:(a)provide for rights and obligations additional tothose set out in Chapter 8 (Trade in Services)
and Chapter 11 (Investment) in relation to the
movement of natural persons between theParties for business purposes;(b)facilitate the movement of natural persons
engaged in the conduct of trade and investment
between the Parties;(c)establish streamlined and transparent procedures
for applications for immigration formalities for the
temporary entry of natural persons to whom this
Chapter applies; and(d)protect the integrity of the Parties’ borders andprotect the domestic labour force and permanent
employment in the territories of the Parties.
Article 2
Scope

1.
This Chapter shall apply, as set out in each Party’s
schedule of specific commitments in Annex 4 (Schedules ofMovement of Natural Persons Commitments), to measures
affecting the temporary entry of natural persons of a Party
into the territory of another Party. Such persons may include:(a)business visitors;

132

(b)

installers and servicers;(c)executives of a business headquartered in a
Party establishing a branch or subsidiary, orother commercial presence of that business inanother Party;(d)intra-corporate transferees; or(e)contractual service suppliers.

2.
This Chapter shall not apply to measures affecting
natural persons seeking access to the employment market ofanother Party, nor shall it apply to measures regarding
citizenship, residence or employment on a permanent basis.
Article 3
Definitions
For the purposes of this Chapter:(a)granting Party means a Party who receives anapplication for temporary entry from a natural
person of another Party who is covered by Article
2.1 (Scope);(b)

immigration formality means a visa, permit,
pass or other document or electronic authority
granting a natural person of one Party the right toenter, reside or work or establish commercial
presence in the territory of the granting Party;(c)natural person of a Party means a natural
person of a Party as defined in Article 2(j)(Definitions) of Chapter 8 (Trade in Services);
and

133

(d)

temporary entry means entry by a natural
person covered by this Chapter, without theintent to establish permanent residence.
Article 4
Grant of Temporary Entry

1.
Each Party shall, in accordance with that Party’s
schedule of specific commitments in Annex 4 (Schedules ofMovement of Natural Persons Commitments), grant
temporary entry or extension of temporary stay inaccordance with this Chapter to natural persons of anotherParty provided those natural persons:(a)follow prescribed application procedures for theimmigration formality sought; and(b)meet all relevant eligibility requirements for entry
to the granting Party.

2.
Any fees imposed in respect of the processing of an
immigration formality shall be reasonable and in accordancewith domestic law.
3.
A Party may deny temporary entry or extension of
temporary stay to natural persons of another Party that do
not comply with Paragraph 1(a) and (b).
Article 5
Schedules of Commitments for the Entry and Temporary
Stay of Natural Persons
Each Party shall set out in Annex 4 (Schedules of Movementof Natural Persons Commitments) a schedule containing its
commitments for the temporary entry and stay in its territoryof natural persons of another Party covered by Article 2.1(Scope). These schedules shall specify the conditions andlimitations governing those commitments, including the134length of stay, for each category of natural persons includedin each Party’s schedule of commitments.
Article 6
Processing of Applications
1.
Where an application for an immigration formality isrequired by a Party, that Party shall process promptly
complete applications for immigration formalities orextensions thereof received from natural persons of anotherParty covered by Article 2.1 (Scope).
2.
Each Party shall, upon request and within a reasonable
period after receiving a complete application for an
immigration formality from a natural person of another Party
covered by Article 2.1 (Scope), notify the applicant of:(a)the receipt of the application;(b)

the status of the application; and(c)the decision concerning the application including,if approved, the period of stay and otherconditions.
Article 7
Immigration Measures

1.
Nothing in this Chapter, Chapter 8 (Trade in Services)or Chapter 11 (Investment) shall prevent a Party fromapplying measures to regulate the entry of natural persons ofanother Party into, or their temporary stay in, its territory,
including those measures necessary to protect the integrityof, and to ensure the orderly movement of natural persons
across, its borders, provided that such measures are notapplied in such a manner as to nullify or impair the benefits
accruing to another Party under this Chapter or to unduly
impair or delay trade in goods or services or the conduct ofinvestment activities under this Agreement.

135

2.
The sole fact of requiring persons to meet eligibility
requirements prior to entry to a Party shall not be regarded
as nullifying or impairing benefits accruing to another Party
under this Chapter, or of unduly impairing or delaying tradein goods or services or the conduct of investment activities
under this Agreement.
Article 8
Transparency
Each Party shall:(a)publish or otherwise make publicly available
explanatory material on all relevant immigration
formalities which pertain to or affect the operationof this Chapter;(b)no later than six months after the date of entry
into force of this Agreement publish, such as on
its immigration website, or otherwise makepublicly available in its own territory and to
persons in the territory of the other Parties, therequirements for temporary entry under this
Chapter, including explanatory material andrelevant forms and documents that will enable
natural persons of other Parties to becomeacquainted with those requirements; and(c)upon modifying or amending any immigration
measure that affects the temporary entry ofnatural persons, ensure that the information
published or otherwise made available pursuant
to Subparagraph (b) is updated as soon as
possible within 90 days.

136Article 9
Application of Chapter 17 (Consultations and Dispute
Settlement)
1.
The Parties shall endeavour to settle any differences
arising out of the implementation of this Chapter throughconsultations.
2.
A Party shall not have recourse to Chapter 17(Consultations and Dispute Settlement) regarding a refusal
to grant temporary entry under this Chapter unless:(a)the matter involves a pattern of practice on thepart of the granting Party; and(b)the natural persons affected have exhausted allavailable domestic remedies regarding theparticular matters.

137

CHAPTER 10
ELECTRONIC COMMERCE
Article 1
Objectives
The objectives of this Chapter are to:(a)promote electronic commerce among the Parties;(b)enhance co-operation among the Parties
regarding development of electronic commerce;
and

(c)

promote the wider use of electronic commerce
globally.
Article 2
Definitions

For the purposes of this Chapter:(a)digital certificates are electronic documents orfiles that are issued or otherwise linked to aparticipant in an electronic communication ortransaction for the purpose of establishing theparticipant’s identity;(b)electronic authentication means the process oftesting an electronic statement or claim, in orderto establish a level of confidence in thestatement’s or claim’s reliability;(c)electronic signature has for each Party themeaning set out in its domestic laws andregulations;

138

(d)

electronic version of a document means adocument in electronic format prescribed by a
Party, including a document sent by facsimiletransmission;(e)

trade administration documents means forms
issued or controlled by a Party which must becompleted by or for an importer or exporter in
relation to the import or export of goods; and(f)

UNCITRAL refers to the United Nations
Commission on International Trade Law.
Article 3
Transparency

1.
Each Party shall publish as promptly as possible or,where that is not practicable, otherwise make publicly
available all relevant measures of general application
pertaining to or affecting the operation of this Chapter.
2.
Each Party shall respond as promptly as possible torelevant requests by another Party for specific information on
any of its measures of general application pertaining to oraffecting the operation of this Chapter.
Article 4
Domestic Regulatory Frameworks
Each Party shall maintain, or adopt as soon as practicable,
domestic laws and regulations governing electronictransactions taking into account the UNCITRAL Model Law
on Electronic Commerce 1996.

139

Article 5
Electronic Authentication and Digital Certificates1.
Each Party shall maintain, or adopt as soon aspracticable, measures based on international norms forelectronic authentication that:(a)permit participants in electronic transactions todeterminetheappropriate
authentication
technologies and implementation models for theirelectronic transactions;(b)

do not limit the recognition of authentication
technologies and implementation models; and(c)permit participants in electronic transactions tohave the opportunity to prove that their electronictransactions comply with the Party’s domestic
laws and regulations.

2.
The Parties shall, where possible, endeavour to work
towards the mutual recognition of digital certificates andelectronic signatures that are issued or recognised bygovernments based on internationally accepted standards.
3.
The Parties shall encourage the interoperability ofdigital certificates used by business.
Article 6
Online Consumer Protection
1.
Subject to Paragraph 2, each Party shall, where
possible, provide protection for consumers using electroniccommerce that is at least equivalent to that provided for
consumers of other forms of commerce under its relevantlaws, regulations and policies.

140

2.
A Party shall not be obliged to apply Paragraph 1
before the date on which that Party enacts domestic laws or
regulations or adopts policies on protection for consumers
using electronic commerce.
Article 7
Online Data Protection
1.
Subject to Paragraph 2, each Party shall, in a manner it
considers appropriate, protect the personal data of the usersof electronic commerce.
2.
A Party shall not be obliged to apply Paragraph 1
before the date on which that Party enacts domestic laws or
regulations to protect the personal data of electroniccommerce users.
3.
In the development of data protection standards, eachParty shall consider the international standards and criteriaof relevant international organisations.
Article 8Paperless Trading
1.
Each Party shall, where possible, work towards theimplementation of initiatives which provide for the use of
paperless trading.
2.
The Parties shall co-operate in international fora toenhance acceptance of electronic versions of tradeadministration documents.
3.
In working towards the implementation of initiatives
which provide for the use of paperless trading, each Party
shall take into account the methods agreed by internationalorganisations including the World Customs Organization.

141

4.
Each Party shall endeavour to make electronic
versions of its trade administration documents publicly
available.
Article 9
Co-operation on Electronic Commerce
1.
Recognising the global nature of electronic commerce,
the Parties shall encourage co-operation in research andtraining activities that would enhance the development ofelectronic commerce. These co-operative research andtraining activities may include, but are not limited to:(a)promotion of the use of electronic versions oftrade administration documents used by anyother Party or Parties;(b)

assisting small and medium enterprises toovercome obstacles encountered in the use ofelectronic commerce;(c)sharing information and experiences andidentifying best practices in relation to domestic
legal and policy frameworks in the sphere ofelectronic commerce, including those related todata protection, privacy, consumer confidence,cyber-security, unsolicited electronic mail,electronic signatures, intellectual property rights,
and electronic government;(d)encouraging co-operative activities to promoteelectronic commerce including those that would
improve the effectiveness and efficiency ofelectronic commerce;(e)exploring ways in which a developed Party or
Parties could provide assistance to thedeveloping Parties in implementing an electroniccommerce legal framework;

142

(f)

encouraging co-operation between the relevant
authorities to facilitate prompt investigation andresolution of fraudulent incidents relating toelectronic commerce transactions;(g)encouraging development by the private sector of
methods of self-regulation, including codes ofconduct, model contracts, guidelines, andenforcement mechanisms, that foster electroniccommerce; and(h)actively participating in regional and multilateralfora to promote development of electroniccommerce.

2.
The Parties shall endeavour to undertake forms of cooperation that build on and do not duplicate existing cooperation initiatives pursued in international fora.
Article 10
Non-Application of Chapter 17 (Consultations and
Dispute Settlement)
Chapter 17 (Consultations and Dispute Settlement) shall not
apply to any matter arising under this Chapter.

143

CHAPTER 11
INVESTMENTSECTION A
Article 1
Scope
1.
This Chapter shall apply to measures adopted or
maintained by a Party relating to:

2.

(a)

investors of any other Party; and(b)covered investments.

This Chapter shall not apply to:(a)government procurement;(b)subsidies or grants provided by a Party; and(c)services supplied in the exercise of governmental
authority by the relevant body or authority of a
Party. For the purposes of this Chapter, a service
supplied in the exercise of governmental
authority means any service which is suppliedneither on a commercial basis nor in competition
with one or more service suppliers.
Article 2
Definitions

For the purposes of this Chapter:(a)covered investment means with respect to a
Party, an investment in its territory of an investorof another Party, in existence as of the date of144

entry into force of this Agreement or established,acquired or expanded thereafter, and which,where applicable, has been admitted1 by the host
Party, subject to its relevant laws, regulations andpolicies;

1(b)freely usable currency means a freely usable
currency as determined by the International
Monetary Fund in accordance with the IMF
Articles of Agreement and any amendments
thereto;(c)investment2 means every kind of asset owned orcontrolled by an investor, including but not limited
to the following:(i)

movable and immovable property and otherproperty rights such as mortgages, liens orpledges;(ii)

shares, stocks, bonds and debentures andany other forms of participation in a juridical
person and rights derived therefrom;(iii)

intellectual property rights which arerecognised pursuant to the laws andregulations of each Party and goodwill;

For greater certainty:(a) in the case of Thailand, protection under this Chapter shall be accorded tocovered investments which have been specifically approved in writing forprotection by the competent authorities;(b) in the case of Viet Nam, “has been admitted” means “has been specificallyregistered or approved in writing, as the case may be”.

2

The term “investment” does not include an order or judgment entered in a judicial oradministrative action.

145

(iv)

claims to money or to any contractual
performance related to a business andhaving financial value3;(v)

rights under contracts, including turnkey,
construction, management, production orrevenue-sharing contracts; and(vi)business concessions required to conducteconomic activity and having financial
value conferred by law or under a contract,
including any concession to search for,cultivate, extract or exploit natural
resources.

For the purpose of the definition of investment inthis Article, returns that are invested shall betreated as investments and any alteration of theform in which assets are invested or reinvested
shall not affect their character as investments;(d)investor of a Party means a natural person of a
Party or a juridical person of a Party that seeks to
make4, is making, or has made an investment in
the territory of another Party;(e)juridical person means any entity duly
constituted or otherwise organised underapplicable law, whether for profit or otherwise,3

For greater certainty, investment does not mean claims to money that arise solely
from:(a) commercial contracts for sale of goods or services; or(b) the extension of credit in connection with such commercial contracts.
4

For greater certainty, the Parties understand that an investor that “seeks to make”
an investment refers to an investor of another Party that has taken active steps tomake an investment. Where a notification or approval process is required for making
an investment, an investor that “seeks to make” an investment refers to an investor ofanother Party that has initiated such notification or approval process.

146and whether privately-owned or governmentallyowned, including any corporation, trust,
partnership, joint venture, sole proprietorship,association or similar organisation;(f)juridical person of a Party means a juridical
person constituted or organised under the law ofthat Party;(g)measure means any measure by a Party,
whether in the form of a law, regulation, rule,
procedure, decision, administrative action, or any
other form;(h)measures by a Party includes measures takenby:(i)central, regional, or local governments andauthorities; and(ii)

non-governmental bodies in the exercise of
powers delegated by central, regional, or
local governments or authorities;(i)natural person of a Party means any natural
person possessing the nationality or citizenshipof, or right of permanent residence in that Party inaccordance with its laws and regulations; and(j)return means an amount yielded by or derived
from an investment, including profits, dividends,
interest, capital gains, royalties and all otherlawful income.
Article 3
Relation to other Chapters

1.
This Chapter does not apply to measures adopted or
maintained by a Party to the extent that they are covered by147

Chapter 8 (Trade in Services) or Chapter 9 (Movement of
Natural Persons).
2.
Notwithstanding Paragraph 1, Article 6 (Treatment of
Investment), Article 7 (Compensation for Losses), Article 8(Transfers), Article 9 (Expropriation and Compensation),
Article 10 (Subrogation) and Section B (Investment Disputes
between a Party and an Investor) shall apply, mutatis
mutandis, to any measure affecting the supply of service bya service supplier of a Party through commercial presence inthe territory of any one of the other Parties pursuant toChapter 8 (Trade in Services), but only to the extent that any
such measures relate to a covered investment and an
obligation under this Chapter, regardless of whether such a
service sector is scheduled in a Party's schedule of specificservices commitments in Annex 3 (Schedules of Specific
Services Commitments).
Article 4
National Treatment5
Each Party shall accord to investors of another Party, and tocovered investments, in relation to the establishment,
acquisition, expansion, management, conduct, operation,liquidation, sale, transfer or other disposition of investments,
treatment no less favourable than that it accords, in likecircumstances, to its own investors and their investments.
Article 5
Prohibition of Performance Requirements
No Party shall apply in connection with the establishment,
acquisition, expansion, management, conduct, operation, or
sale or other disposition of an investment of an investor of a
Party in its territory any measure which is inconsistent with
the Agreement on Trade-Related Investment Measures inAnnex 1A to the WTO Agreement.
5

The application of this Article is subject to Article 16 (Work Programme).

148

Article 6
Treatment of Investment
1.
Each Party shall accord to covered investments fairand equitable treatment and full protection and security.
2.

For greater certainty6:(a)fair and equitable treatment requires each Party
not to deny justice in any legal or administrative
proceedings;(b)full protection and security requires each Party totake such measures as may be reasonably
necessary to ensure the protection and securityof the covered investment; and(c)the concepts of “fair and equitable treatment” and“full protection and security” do not require
treatment in addition to or beyond that which is
required under customary international law, anddo not create additional substantive rights.

3.
A determination that there has been a breach ofanother provision of this Agreement, or of a separate
international agreement, does not establish that there has
been a breach of this Article.
Article 7Compensation for Losses
Each Party shall accord to investors of another Party, and tocovered investments, with respect to measures it adopts ormaintains relating to losses suffered by investments in its
territory owing to armed conflict, civil strife or state of6

In the case of Indonesia, only Paragraph 2(a) and (b) shall apply where Indonesia
is the Party according treatment under this Article.

149

emergency, treatment no less favourable than that it accords,
in like circumstances, to:(a)its own investors and their investments; and(b)investors of any other Party or non-Party andtheir investments.
Article 8
Transfers

1.
Each Party shall allow all transfers relating to acovered investment to be made freely and without delay intoand out of its territory. Such transfers include:(a)contributions to capital, including the initial
contribution;(b)

profits, capital gains, dividends, royalties, licencefees, technical assistance and technical andmanagement fees, interest and other current
income accruing from any covered investment;(c)proceeds from the total or partial sale or
liquidation of any covered investment;(d)payments made under a contract, including aloan agreement;(e)payments made pursuant to Article(Compensation for Losses) and Article(Expropriation and Compensation);(f)payments arising out of the settlement of adispute by any means including adjudication,
arbitration or the agreement of the parties to thedispute; and

150

7
9

(g)

earnings and other remuneration of personnel
engaged from abroad in connection with thatinvestment.

2.
Each Party shall allow such transfers relating to acovered investment to be made in a freely usable currency at
the market rate of exchange prevailing at the time of transfer.
3.
Notwithstanding Paragraphs 1 and 2, a Party may
prevent or delay a transfer through the equitable, nondiscriminatory, and good faith application of its laws andregulations relating to:(a)bankruptcy, insolvency, or the protection of therights of creditors;(b)issuing, trading, or dealing in securities, futures,
options, or derivatives;(c)criminal or penal offences and the recovery of theproceeds of crime;(d)financial reporting or record keeping of transfers
when necessary to assist law enforcement or
financial regulatory authorities;(e)ensuring compliance with orders or judgments injudicial or administrative proceedings;(f)taxation;(g)social security, public retirement, or compulsory
savings schemes; and(h)severance entitlements of employees.

4.
Nothing in this Chapter shall affect the rights andobligations of each Party as a member of the International
Monetary Fund under the IMF Articles of Agreement,151

including the use of exchange actions which are inconformity with the IMF Articles of Agreement, provided thata Party shall not impose restrictions on any capitaltransactions inconsistently with its specific commitments
under this Chapter regarding such transactions, except
under Article 4 (Measures to Safeguard the Balance ofPayments) of Chapter 15 (General Provisions andExceptions) or at the request of the International Monetary
Fund.
Article 9
Expropriation and Compensation7
1.
A Party shall not expropriate or nationalise a covered
investment either directly or through measures equivalent to
expropriation or nationalisation (expropriation), except:

2.

(a)

for a public purpose8;(b)in a non-discriminatory manner;(c)

on payment of prompt, adequate, and effective
compensation; and(d)in accordance with due process of law.

The compensation referred to in Paragraph 1(c) shall:(a)be paid without delay9;

7This Article shall be interpreted in accordance with this Chapter’s Annex on
Expropriation and Compensation.
8

For the avoidance of doubt, where Malaysia is the expropriating Party, any
measure of expropriation relating to land shall be for the purposes as set out in thedomestic laws and regulations relating to land acquisition.
9

The Parties understand that there may be legal and administrative processes thatneed to be observed before payment can be made.

152

(b)

be equivalent to the fair market value of the
expropriated investment at the time when or
immediately before the expropriation was publicly
announced10, or when the expropriation occurred,
whichever is applicable;(c)

not reflect any change in value because theintended expropriation had become known
earlier; and(d)be effectively realisable and freely transferable
between the territories of the Parties.

3.
The compensation referred to in Paragraph 1(c) shall
include appropriate interest. The compensation, including
any accrued interest, shall be payable either in the currencyof the expropriating Party, or if requested by the investor, in afreely usable currency.
4.
If an investor requests payment in a freely useable
currency, the compensation referred to in Paragraph 1(c),including any accrued interest, shall be converted into thecurrency of payment at the market rate of exchange
prevailing on the date of payment.
5.
This Article does not apply to the issuance ofcompulsory licences granted in relation to intellectual
property rights in accordance with the TRIPS Agreement.
6.
Notwithstanding Paragraphs 1 to 4, in the case where
Singapore or Viet Nam is the expropriating Party, any
measure of expropriation relating to land, which shall be as
defined in the existing domestic legislation of the
expropriating Party on the date of entry into force of thisAgreement, shall be for a purpose and upon payment ofcompensation made in accordance with the aforesaid
10

In the case of the Philippines, the time when or immediately before theexpropriation was publicly announced refers to the date of filing of the Petition for
Expropriation.

153

legislation. Such compensation shall be subject to any
subsequent amendments to the aforesaid legislation relating
to the amount of compensation where such amendments
follow the general trends in the market value of the land.
Article 10
Subrogation
1.
If a Party or an agency of a Party makes a payment toan investor of that Party under a guarantee, a contract of
insurance or other form of indemnity it has granted on noncommercial risk in respect of an investment, the other Party
shall recognise the subrogation or transfer of any right or
claim in respect of such investment. The subrogated ortransferred right or claim shall not be greater than the originalright or claim of the investor.
2.
Where a Party or an agency of a Party has made apayment to an investor of that Party and has taken overrights and claims of the investor, that investor shall not,unless authorised to act on behalf of the Party or the agency
making the payment, pursue those rights and claims against
the other Party.
3.
In any proceeding involving an investment dispute, aParty shall not assert, as a defence, counter-claim, right of
set-off or otherwise, that the investor or the covered
investment has received or will receive, pursuant to an
insurance or guarantee contract, indemnification or othercompensation for all or part of any alleged loss.
Article 11
Denial of Benefits
1.
Following notification, a Party may deny the benefits ofthis Chapter:(a)to an investor of another Party that is a juridical
person of such other Party and to investments of154

that investor if an investor of a non-Party owns orcontrols the juridical person and the juridical
person has no substantive business operations in
the territory of the other Party;(b)

to an investor of another Party that is a juridical
person of such other Party and to investments ofthat investor if an investor of the denying Party
owns or controls the juridical person and thejuridical person has no substantive business
operations in the territory of any Party, other thanthe denying Party.

2.
Notwithstanding Paragraph 1 and subject to priornotification to and consultation with the relevant Party,
Thailand may, under its applicable laws and regulations,deny the benefits of this Chapter relating to the admission,
establishment, acquisition and expansion of investments toan investor of another Party that is a juridical person of such
Party and to investments of such an investor where Thailand
establishes that the juridical person is owned or controlled bynatural persons or juridical persons of a non-Party or thedenying Party.
3.

In the case of Thailand, a juridical person is:(a)owned by natural persons or juridical persons of
a Party or a non-Party if more than 50 per cent of
the equity interest in it is beneficially owned bysuch persons;(b)controlled by natural persons or juridical
persons of a Party or non-Party if such persons
have the power to name a majority of its directors
or otherwise to legally direct its actions.

4.
Following notification, and without prejudice toParagraph 1, the Philippines may deny the benefits of this
Chapter to an investor of another Party and to investments of155

that investor, where it establishes that such investor has
made an investment in breach of the provisions ofCommonwealth Act No. 108, entitled “An Act to Punish Actsof Evasion of Laws on the Nationalization of Certain Rights,
Franchises or Privileges”, as amended by Presidential
Decree No. 715, otherwise known as “The Anti-Dummy Law”,
as may be amended.
Article 12
Reservations11
1.
Article 4 (National Treatment), and in the case of Lao
PDR Article 5 (Prohibition of Performance Requirements), do
not apply to:(a)11

any existing measure that does not conform to
those Articles maintained by a Party at:(i)the central level of government, as set out
by that Party in its Schedule to List I;(ii)

a regional level of government, as set out
by that Party in its Schedule to List I; or(iii)

a local level of government;(b)the continuation or prompt renewal of any
measure referred to in Subparagraph (a); or(c)an amendment to any measure referred to in
Subparagraph (a) to the extent that theamendment does not decrease the conformity ofthe measure as it existed at the date of entry into
force of the Party’s Schedule to List I, with Article
4 (National Treatment), and, in the case of Lao
PDR Article 5 (Prohibition of Performance
Requirements).

The application of this Article is subject to Article 16 (Work Programme).

156

2.
Article 4 (National Treatment), and in the case of Lao
PDR Article 5 (Prohibition of Performance Requirements), do
not apply to any measure that a Party adopts or maintains
with respect to sectors, sub-sectors, or activities, as set out
in its Schedule to List II.
3.
Other than pursuant to any procedures for themodification of schedules of reservations, a Party may not,under any measure adopted after the date of entry into forceof this Agreement and covered by its Schedule to List II,
require an investor of another Party, by reason of its
nationality, to sell or otherwise dispose of an investment
existing at the time the measure becomes effective.
Article 13
Transparency
1.
Each Party shall publish promptly and, except inemergency situations, at the latest by the time of their entry
into force, all relevant measures of general application
covered by this Chapter. International agreements pertaining
to or affecting investors or investment activities to which a
Party is a signatory shall also be published.
2.
To the extent possible, each Party shall make themeasures and international agreements of the kind referred
to in Paragraph 1 available on the internet.
3.
Where publication referred to in Paragraphs 1 and 2 is
not practicable, such information12 shall be made otherwise
publicly available.
4.
To the extent provided for under its domestic legal
framework, each Party shall endeavour to provide a

12

For greater certainty, the Parties agree that such information may be published ineach Party’s chosen language.

157

reasonable opportunity for comments by interested persons
on measures referred to in Paragraph 1 before adoption.
5.
Each Party shall designate a contact point to facilitatecommunications among the Parties on any matter coveredby this Chapter. Upon the request of another Party, thecontact point shall:(a)identify the office or official responsible for the
relevant matter; and(b)assistasnecessaryinfacilitating
communications with the requesting Party withrespect to that matter.

6.
Each Party shall respond within a reasonable period oftime to all requests by any other Party for specific informationon:(a)

any measures or internationalreferred to in Paragraph 1;

agreements(b)

any new, or any changes to existing, measuresor administrative guidelines which significantly
affect investors or covered investments, whether
or not the other Party has been previously
notified of the new or changed measure or
administrative guideline.

7.
Any notification or communication under this Article
shall be provided to the other Party through the relevant
contact points in the English language.
8.
Nothing in this Article shall be construed as requiring a
Party to provide confidential information, the disclosure ofwhich would impede law enforcement, or otherwise becontrary to the public interest, or which would prejudicelegitimate commercial interests of particular juridical persons,public or private.

158

9.
Each Party shall ensure that in its administrative
proceedings relating to the application of measures referred
to in Paragraph 1 to particular investors or investments of theother Party in specific cases that:(a)to the extent provided under its domestic legal
framework and where possible, persons ofanother Party that are directly affected by aproceeding are provided reasonable notice, whena proceeding is initiated;(b)

to the extent provided under its domestic legal
framework, that it endeavours to afford such
persons with reasonable opportunity to present
their positions prior to any final administrative
action, when time, the nature of the proceeding,and the public interest permit; and(c)its procedures are in accordance with its laws.

10. Each Party shall maintain judicial or administrative
tribunals or procedures for the purpose of the prompt
review 13 and, where warranted, correction of final
administrative actions regarding matters covered by this
Chapter. Where such procedures or tribunals are notindependent of the agency entrusted with the administrative
action concerned, each Party shall ensure that the tribunals
or procedures provide for an objective and impartial review.
11. Each Party shall ensure that, in any such tribunals orprocedures, the parties to the proceedings are provided withthe right to:(a)a reasonable opportunity to support or defend
their respective positions; and13

For avoidance of doubt, the form of “review” shall be as provided for under the
Party’s law.

159

(b)

a decision in accordance with the Party’s laws.

12. Each Party shall ensure, subject to appeal or further
review as provided in its law, that any decision referred to in
Paragraph 11(b) shall be implemented in accordance with its
laws.
Article 14
Special Formalities and Disclosure of Information
1.
Nothing in Article 4 (National Treatment) shall be
construed to prevent a Party from adopting or maintaining ameasure that prescribes special formalities in connection
with covered investments, including a requirement thatcovered investments be legally constituted under the laws or
regulations of the Party, provided that such formalities do notsubstantially impair the protections afforded by a Party toinvestors of another Party and covered investments pursuant
to this Chapter.
2.
Notwithstanding Article 4 (National Treatment), a Party
may require an investor of another Party, or a covered
investment, to provide information concerning thatinvestment solely for informational or statistical purposes.
The Party shall protect to the extent possible any confidential
information which has been provided from any disclosurethat would prejudice legitimate commercial interests of theinvestor or the covered investment. Nothing in thisParagraph shall be construed to prevent a Party fromotherwise obtaining or disclosing information in connection
with the equitable and good faith application of its law.
Article 15
Special and Differential Treatment for the Newer ASEAN
Member States
In order to increase the benefits of this Chapter for the newer
ASEAN Member States, and in accordance with theobjectives of and the Preamble to this Agreement and160

objectives of Chapter 12 (Economic Co-operation), theParties recognise the importance of according special anddifferential treatment to the newer ASEAN Member States
under this Chapter, through:(a)technical assistance to strengthen their capacity
in relation to investment policies and promotion,
including in areas such as human resource
development;(b)access to information on the investment policies
of other Parties, business information, relevant
databases and contact points for investment
promotion agencies;(c)commitments in areas of interest to the newer
ASEAN Member States; and(d)recognising that commitments by each newer
ASEAN Member State may be made inaccordance with its individual stage ofdevelopment.
Article 16
Work Programme

1.

The Parties shall enter into discussions on:(a)schedules of reservations to this Chapter; and(b)treatment of investment in services which does
not qualify as commercial presence in Chapter 8(Trade in Services).

2.
The Parties shall also enter into discussions with aview to agreeing on:

161

(a)

the application of most-favoured-nation treatment
to this Chapter, including to those schedules ofreservations; and(b)procedures for the modification of schedules ofreservations.

3.
The Parties shall conclude the discussions referred toin Paragraphs 1 and 2 within five years from the date of entry
into force of this Agreement unless the Parties otherwise
agree. These discussions shall be overseen by theInvestment Committee established pursuant to Article 17(Committee on Investment).
4.
Schedules of reservations to this Chapter referred to in
Paragraph 1 shall enter into force on a date agreed to by theParties.
5.
Notwithstanding anything to the contrary in this
Chapter, Article 4 (National Treatment) and Article 12(Reservations) shall not apply until the Parties’ schedules ofreservations to this Chapter have entered into force inaccordance with Paragraph 4.
Article 17
Committee on Investment
1.
The Parties hereby establish a
Investment(Investment
Committee)
representatives of the Parties.

Committee
consisting

on
of

2.
The Investment Committee shall meet within one year
from the date of entry into force of this Agreement andthereafter as mutually determined by the Parties. Meetings
may be conducted in person, or by any other means as
mutually determined by the Parties.

162

3.

The Investment Committee’s functions shall be:(a)

to oversee the discussions referred to in Article
16.1 and 16.2 (Work Programme);(b)

to review the implementation of this Chapter;(c)to consider any other matters related to this
Chapter identified by the Parties; and(d)to report to the FTA Joint Committee as required.
SECTION B

Investment Disputes between a Party and an Investor
Article 18
Scope and Definitions
1.
This Section shall apply to disputes between a Party
and an investor of another Party concerning an alleged
breach of an obligation of the former under Section A whichcauses loss or damage to the covered investment of theinvestor.
2.
This Section shall not apply to investment disputes
which have occurred prior to the entry into force of thisAgreement.
3.
A natural person possessing the nationality or
citizenship of a Party may not pursue a claim against that
Party under this Section.
4.

For the purpose of this Section:(a)Appointing Authority means:

163

(i)

in the case of arbitration under Article
21.1(b) or (c) (Submission of a Claim), theSecretary-General of ICSID;(ii)

in the case of arbitration under Article
21.1(d) or (e) (Submission of a Claim), theSecretary-General of the Permanent Courtof Arbitration; or(iii)

any person as
disputing parties;

agreedbetweenthe(b)disputing Party means a Party against which aclaim is made under this Section;(c)disputing party means a disputing investor or adisputing Party;(d)disputing parties means a disputing investor
and a disputing Party;(e)disputing investor means an investor of a Party
that makes a claim against another Party on its
own behalf under this Section, and where
relevant includes an investor of a Party thatmakes a claim on behalf of a juridical person of
the disputing Party that the investor owns orcontrols;(f)

ICSID means the International
Settlement of Investment Disputes;(g)

ICSID Convention means the Convention on the
Settlement of Investment Disputes between
States and National of other States, done at
Washington on 18 March 1965;(h)

ICSID Additional Facility Rules means theRules Governing the Additional Facility for the164

CentreforAdministration of Proceedings by the Secretariatof the International Centre for Settlement of
Investment Disputes;(i)

non-disputing Party means the Party of the
disputing investor;(j)

New York Convention means the United
Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, done at
New York on 10 June 1958; and(k)

UNCITRAL Arbitration Rules means thearbitration rules of the United Nations
Commission on International Trade Law,
approved by the United Nations General
Assembly on 15 December 1976.
Article 19
Consultations

1.
In the event of an investment dispute referred to in
Article 18.1 (Scope and Definitions), the disputing parties
shall as far as possible resolve the dispute throughconsultation, with a view towards reaching an amicablesettlement. Such consultations, which may include the use ofnon-binding, third party procedures, shall be initiated by awritten request for consultations delivered by the disputing
investor to the disputing Party.
2.
With the objective of resolving an investment dispute
through consultations, a disputing investor shall provide thedisputing Party, prior to the commencement of consultations,with information regarding the legal and factual basis for theinvestment dispute.

165

Article 20
Claim by an Investor of a Party
If an investment dispute has not been resolved within 180
days of the receipt by a disputing Party of a request for
consultations, the disputing investor may, subject to this
Article, submit to conciliation or arbitration a claim:(a)that the disputing Party has breached an
obligation arising under Article 4 (National
Treatment), Article 6 (Treatment of Investment),
Article 7 (Compensation for Losses), Article 8(Transfers), and Article 9 (Expropriation andCompensation) relating to the management,
conduct, operation or sale or other disposition ofa covered investment; and(b)that the disputing investor or the covered
investment has incurred loss or damage by
reason of, or arising out of, that breach.
Article 21
Submission of a Claim

1.
A disputing investor may submit a claim referred to in
Article 20 (Claim by an Investor of a Party) at the choice ofthe disputing investor:(a)where the Philippines or Viet Nam is the
disputing Party, to the courts or tribunals of that
Party, provided that such courts or tribunals havejurisdiction over such claim; or

166

(b)

under the ICSID Convention and the ICSID Rulesof Procedure for Arbitration Proceedings 14 ,provided that both the disputing Party and thenon-disputing Party are parties to the ICSID
Convention; or(c)under the ICSID Additional Facility Rules,
provided that either of the disputing Party or nondisputing Party are a party to the ICSID
Convention; or(d)under the UNCITRAL Arbitration Rules; or(e)

if the disputing parties agree, to any otherarbitration institution or under any otherarbitration rules,

provided that resort to one of the fora under Subparagraphs(a) to (e) shall exclude resort to any other.
2.
A claim shall be deemed submitted to arbitration under
this Article when the disputing investor’s notice of or request
for arbitration made in accordance with this Section (notice ofarbitration) is received under the applicable arbitration rules.
3.
The arbitration rules applicable under Paragraph 1(b)to (e) as in effect on the date the claim or claims were
submitted to arbitration under this Article, shall govern thearbitration except to the extent modified by this Section.
4.
In relation to a specific investment dispute or class ofdisputes, the applicable arbitration rules may be waived,
varied or modified by written agreement between thedisputing parties. Such rules shall be binding on the relevant
14
In the case of the Philippines, the submission of a claim under the ICSID
Convention and the ICSID Rules of Procedure for Arbitration Proceedings shall be
subject to a written agreement between the disputing parties in the event that an
investment dispute arises.

167tribunal or tribunals established pursuant to this Section, andon individual arbitrators serving on such tribunals.
5.
The disputing investor shall provide with the notice ofarbitration:(a)the name of the arbitrator that the disputing
investor appoints; or(b)the disputing investor’s written consent for the
Appointing Authority to appoint that arbitrator.

Article 22
Conditions and Limitations on Submission of a Claim
1.
The submission of a dispute as provided for in Article
20 (Claim by an Investor of a Party) to conciliation or
arbitration under Article 21.1(b) to (e) (Submission of a
Claim) in accordance with this Section, shall be conditional
upon:
(a)

the submission of the investment dispute to such
conciliation or arbitration taking place within three
years of the time at which the disputing investor
became aware, or should reasonably havebecome aware, of a breach of an obligationreferred to in Article 20(a) (Claim by an Investorof a Party) causing loss or damage to thedisputing investor or a covered investment;(b)the disputing investor providing written notice,which shall be submitted at least 90 days before
the claim is submitted, to the disputing Party of its
intent to submit the investment dispute to such
conciliation or arbitration and which briefly
summarises the alleged breach of the disputing
Party (including the articles or provisions alleged
to have been breached) and the loss or damage

168allegedly caused to the disputing investor or acovered investment; and(c)the notice of arbitration being accompanied by
the disputing investor’s written waiver of its rightto initiate or continue any proceedings before thecourts or administrative tribunals of either Party,
or other dispute settlement procedures, of any
proceeding with respect to any measure alleged
to constitute a breach referred to in Article 20(Claim by an Investor of a Party).

2.
Notwithstanding Paragraph 1(c), no Party shall preventthe disputing investor from initiating or continuing an actionthat seeks interim measures of protection for the sole
purpose of preserving its rights and interests and does not
involve the payment of damages or resolution of thesubstance of the matter in dispute, before the courts oradministrative tribunals of the disputing Party.
3.
No Party shall give diplomatic protection, or bring aninternational claim, in respect of a dispute which has been
submitted to conciliation or arbitration under this Article,
unless such other Party has failed to abide by and comply
with the award rendered in such dispute. Diplomatic
protection, for the purposes of this Paragraph, shall notinclude informal diplomatic exchanges for the sole purposeof facilitating a settlement of the dispute.
4.
A disputing Party shall not assert, as a defence,
counter-claim, right of set-off or otherwise, that the disputing
investor or the covered investment has received or will
receive, pursuant to an insurance or guarantee contract,
indemnification or other compensation for all or part of any
alleged loss.

169

Article 23
Selection of Arbitrators
1.
Unless the disputing parties otherwise agree, thetribunal shall comprise three arbitrators:(a)one arbitrator appointed by each of the disputing
parties; and(b)the third arbitrator, who shall be the presiding
arbitrator, appointed by agreement of the
disputing parties, shall be a national of a nonParty which has diplomatic relations with thedisputing Party and non-disputing Party, andshall not have permanent residence in either the
disputing Party or non-disputing Party.

2.
Arbitrators shall have expertise or experience in public
international law, international trade or international
investment rules, and be independent of, and not be affiliatedwith or take instructions from the disputing Party, the nondisputing Party, or disputing investor.
3.
The Appointing Authority shall serve as appointing
authority for arbitration under this Article.
4.
If a tribunal has not been constituted within 75 days
from the date that a claim is submitted to arbitration under
this Section, the Appointing Authority, on the request of adisputing party, shall appoint, in his or her discretion, thearbitrator or arbitrators not yet appointed.
5.
The disputing parties may establish rules relating to
expenses incurred by the tribunal, including arbitrators’
remuneration.
6.
Where any arbitrator appointed as provided for in this
Article resigns or becomes unable to act, a successor shall170be appointed in the same manner as prescribed for theappointment of the original arbitrator and the successor shallhave all the powers and duties of the original arbitrator.
Article 24
Consolidation
Where two or more claims have been submitted separately
to arbitration under Article 20 (Claim by an Investor of a
Party) and the claims have a question of law or fact incommon and arise out of the same or similar events orcircumstances, all concerned disputing parties may agree toconsolidate those claims in any manner they deem
appropriate.
Article 25
Conduct of the Arbitration
1.
Where issues relating to jurisdiction or admissibility areraised as preliminary objections, a tribunal shall decide thematter before proceeding to the merits.
2.
A disputing Party may, no later than 30 days after theconstitution of the tribunal, file an objection that a claim is
manifestly without merit. A disputing Party may also file an
objection that a claim is otherwise outside the jurisdiction orcompetence of the tribunal. The disputing Party shall specify
as precisely as possible the basis for the objection.
3.
The tribunal shall address any such objection as apreliminary question apart from the merits of the claim. The
disputing parties shall be given a reasonable opportunity topresent their views and observations to the tribunal. If thetribunal decides that the claim is manifestly without merit, oris otherwise not within the jurisdiction or competence of thetribunal, it shall render an award to that effect.
4.
The tribunal may, if warranted, award the prevailingparty reasonable costs and fees incurred in submitting or

171

opposing the objection. In determining whether such anaward is warranted, the tribunal shall consider whether either
the claim or the objection was frivolous or manifestly without
merit, and shall provide the disputing parties a reasonable
opportunity to comment.
5.
Unless the disputing parties otherwise agree, thetribunal shall determine the place of arbitration in accordancewith the applicable arbitration rules, provided that the place
shall be in the territory of a State that is a party to the New
York Convention.
6.
Where an investor claims that the disputing Party has
breached Article 9 (Expropriation and Compensation) by the
adoption or enforcement of a taxation measure, the disputing
Party and the non-disputing Party shall, upon request fromthe disputing Party, hold consultations with a view todetermining whether the taxation measure in question has aneffect equivalent to expropriation or nationalisation. Any
tribunal that may be established pursuant to this Section
shall accord serious consideration to the decision of both
Parties under this Paragraph.
7.
If both Parties fail either to initiate consultations
referred to in Paragraph 6, or to determine whether suchtaxation measure has an effect equivalent to expropriation or
nationalisation within the period of 180 days from the date of
the receipt of request for consultation referred to in Article 19(Consultations), the disputing investor shall not be prevented
from submitting its claim to arbitration in accordance with thisSection.
Article 26
Transparency of Arbitral Proceedings
1.
Subject to Paragraphs 2 and 3, the disputing Party may
make publicly available all awards and decisions producedby the tribunal.

172

2.
Any of the disputing parties that intend to use
information designated as confidential information in ahearing shall so advise the tribunal. The tribunal shall makeappropriate arrangements to protect the information fromdisclosure.
3.
Any information specifically designated as confidentialthat is submitted to the tribunal or the disputing parties shallbe protected from disclosure to the public.
4.
A disputing party may disclose to persons directly
connected with the arbitral proceedings such confidential
information as it considers necessary for the preparation of
its case, but it shall require that such confidential information
is protected.
5.
The tribunal shall not require a Party to furnish or allow
access to information the disclosure of which would impede
law enforcement or would be contrary to the Party’s law
protecting Cabinet confidences, personal privacy or thefinancial affairs and accounts of individual customers offinancial institutions, or which it determines to be contrary to
its essential security.
6.
The non-disputing Party shall be entitled, at its cost, toreceive from the disputing Party a copy of the notice ofarbitration, no later than 30 days after the date that such
document has been delivered to the disputing Party. The
disputing Party shall notify all other Parties of the receipt of
the notice of arbitration within 30 days thereof.
Article 27
Governing Law
1.
Subject to Paragraphs 2 and 3, when a claim is
submitted under Article 20 (Claim by an Investor of a Party),
the tribunal shall decide the issues in dispute in accordancewith this Agreement, any other applicable agreements
between the Parties, any relevant rules of international law

173

applicable in the relations between the Parties, and, whereapplicable, any relevant domestic law of the disputing Party.
2.
The tribunal shall, on its own account or at the requestof a disputing party, request a joint interpretation of any
provision of this Agreement that is in issue in a dispute. The
Parties shall submit in writing any joint decision declaring
their interpretation to the tribunal within 60 days of thedelivery of the request. Without prejudice to Paragraph 3, if
the Parties fail to issue such a decision within 60 days, anyinterpretation submitted by a Party shall be forwarded to thedisputing parties and the tribunal, which shall decide theissue on its own account.
3.
A joint decision of the Parties, declaring theirinterpretation of a provision of this Agreement shall bebinding on a tribunal, and any decision or award issued by atribunal must be consistent with that joint decision.
Article 28
Awards1.
Where a tribunal makes a final award against either ofthe disputing parties, the tribunal may award, separately or in
combination, only:(a)monetary damages and any applicable interest;
and

(b)

restitution of property, in which case the award
shall provide that the disputing Party may pay
monetary damages and any applicable interest inlieu of restitution.

2.
A tribunal may also award costs and attorney’s fees inaccordance with this Section and the applicable arbitration
rules.
3.

A tribunal may not award punitive damages.

174

4.
An award made by a tribunal shall be final and binding
upon the disputing parties. An award shall have no binding
force except between the disputing parties and in respect ofthe particular case.
5.
Subject to Paragraph 6 and the applicable review
procedure for an interim award, a disputing party shall abide
by and comply with an award without delay.15
6.
A disputing party may not seek enforcement of a final
award until:
(a)

(b)

in the case of a final award under the ICSID
Convention:(i)

120 days has elapsed from the date theaward was rendered and no disputing party
has requested revision or annulment of theaward; or(ii)revision or annulment proceedings havebeen completed;in the case of a final award under the ICSID
Additional Facility Rules, the UNCITRAL
Arbitration Rules, or the rules selected pursuant
to Article 21.1(e) (Submission of a Claim):(i)

90 days have elapsed from the date theaward was rendered and no disputing party
has commenced a proceeding to revise, set
aside, or annul the award; or(ii)a court has dismissed or allowed an
application to revise, set aside, or annul theaward and there is no further appeal.

15

The Parties understand that there may be domestic legal and administrative
processes that need to be observed before an award can be complied with.

175

7.
Each Party shall provide for the enforcement of anaward in its territory.

176

ANNEX ON EXPROPRIATION AND COMPENSATION
1.
An action or a series of related actions by a Partycannot constitute an expropriation unless it interferes with atangible or intangible property right or property interest in acovered investment.
2.
Article 9.1 (Expropriation and Compensation) of
Chapter 11 (Investment) addresses two situations:(a)the first situation is direct expropriation, where acovered investment is nationalised or otherwise
directly expropriated through formal transfer of
title or outright seizure; and(b)the second situation is where an action or seriesof related actions by a Party has an effectequivalent to direct expropriation without formaltransfer of title or outright seizure.

3.
The determination of whether an action or series ofrelated actions by a Party, in a specific fact situation,
constitutes an expropriation of the type referred to in
Paragraph 2(b) requires a case-by-case, fact-based inquiry
that considers, among other factors:(a)the economic impact of the government action,although the fact that an action or series ofrelated actions by a Party has an adverse effecton the economic value of an investment, standing
alone, does not establish that such an
expropriation has occurred;(b)whether the government action breaches thegovernment’s prior binding written commitment to
the investor whether by contract, licence or otherlegal document; and

177

(c)

the character of the government action, including,
its objective and whether the action isdisproportionate to the public purpose.1

4.
Non-discriminatory regulatory actions by a Party thatare designed and applied to achieve legitimate public welfare
objectives, such as the protection of public health, safety,
and the environment do not constitute expropriation of thetype referred to in Paragraph 2(b).

1“Public purpose” shall be read with reference to Article 9.1(a) and Article 9.6(Expropriation and Compensation) of Chapter 11 (Investment).

178

CHAPTER 12
ECONOMIC CO-OPERATION
Article 1
Scope and Objectives
1.
The Parties reaffirm the importance of ongoing
economic co-operation initiatives between ASEAN, Australia
and New Zealand, and agree to complement their existing
economic partnership in areas where the Parties havemutual interests, taking into account the different levels ofdevelopment of the Parties.
2.
The Parties acknowledge the provisions to encourageand facilitate economic co-operation included in various
Chapters of this Agreement.
3.
Economic co-operation under this Chapter shallsupport implementation of this Agreement through economic
co-operation activities which are trade or investment related
as specified in the Work Programme.
Article 2
Definitions
For the purposes of this Chapter:(a)

implementing Party or implementing Parties
means, for each component of the Work
Programme, the Party or Parties primarily
responsible for the implementation of thatcomponent; and(b)Work Programme means the programme of
economic co-operation activities, organised into
components, mutually determined by the Parties
prior to the entry into force of this Agreement.

179

Article 3
Resources
1.
Recognising the development gaps among the ASEAN
Member States and among the Parties, the Parties shallcontribute appropriately to the implementation of the Work
Programme.
2.
In determining the appropriate level of contribution to
the Work Programme, the Parties shall take into account:(a)the different levels of development and capacityof Parties;(b)

any in-kind contributions able to be made to Work
Programme components by Parties; and(c)that the appropriate level of contribution
enhances the relevance and sustainability of cooperation, strengthens partnerships between
Parties and builds Parties’ shared commitment to
the effective implementation and oversight ofWork Programme components.

Article 4
Economic Co-operation Work Programme
1.

Each Work Programme component shall:(a)be trade or investment related and support thisAgreement’s implementation;(b)

be specified in the Work Programme;(c)involve a minimum of two ASEAN Member States,
Australia and/or New Zealand;

180

(d)

address the mutual priorities of the participating
Parties; and(e)where possible, avoid duplicating
economic co-operation activities.

existing

2.
The description of each Work Programme component
shall specify the details necessary to provide clarity to theParties regarding the scope and purpose of such component.
Article 5
Focal Points for Implementation
1.
Each Party shall designate a focal point for all mattersrelating to the implementation of the Work Programme andshall keep all Parties updated on its focal point’s details.
2.
The focal points shall be responsible for overseeing
and reporting on the implementation of the Work Programmein accordance with Article 6 (Implementation and Evaluationof Work Programme Components) and Article 7 (Review ofWork Programme), and for responding to inquiries from any
Party regarding the Work Programme.
Article 6
Implementation and Evaluation of Work ProgrammeComponents
1.
Prior to the commencement of each Work Programmecomponent, the implementing Party or Parties, inconsultation with relevant participating Parties, shall develop
an implementation plan for that Work Programme component
and provide that plan to each Party.
2.
The implementing Party or Parties for a Work
Programme component may use existing mechanisms forthe implementation of that component.

181

3.
Until the completion of a Work Programme component,
the implementing Party or Parties shall regularly monitor andevaluate the relevant component and provide periodic
reports to each Party including a final component completion
report.
Article 7
Review of Work Programme
At the direction of the FTA Joint Committee, the Work
Programme shall be reviewed to assess its overall
effectiveness and recommendations may be made. The FTA
Joint Committee may make modifications to the Work
Programme taking into account the review and available
resources.
Article 8
Non-Application of Chapter 17 (Consultations and
Dispute Settlement)
Chapter 17 (Consultations and Dispute Settlement) shall not
apply to any matter arising under this Chapter.

182

CHAPTER 13
INTELLECTUAL PROPERTY
Article 1
Objectives
Each Party confirms its commitment to reducing
impediments to trade and investment by promoting deeper
economic integration through effective and adequate
creation, utilisation, protection and enforcement ofintellectual property rights, taking into account the different
levels of economic development and capacity anddifferences in national legal systems and the need tomaintain an appropriate balance between the rights ofintellectual property owners and the legitimate interests ofusers in subject matter protected by intellectual property
rights.
Article 2
Definitions
For the purposes of this Chapter:(a)intellectual property rights means copyrightand related rights; rights in trademarks,
geographical indications, industrial designs,
patents, and layout-designs (topographies) ofintegrated circuits; rights in plant varieties; andrights in undisclosed information; as referred to in
the TRIPS Agreement; and(b)

WIPO means the World Intellectual Property
Organization.

183

Article 3
Affirmation of the TRIPS Agreement
Each Party affirms its rights and obligations with respect toeach other Party under the TRIPS Agreement.
Article 4
National Treatment
1.
Each Party shall accord to the nationals of each otherParty treatment no less favourable than it accords to its own
nationals with regard to the protection1 of intellectual property,
subject to the exceptions provided in the TRIPS Agreement
and in those multilateral agreements concluded under the
auspices of WIPO.
2.
Each Party may avail itself of the exceptions referred tounder Paragraph 1 in relation to its judicial and administrative
procedures, including requiring a national of any other Party
to designate an address for service of process in its territory,or to appoint an agent in its territory, only where suchexceptions are:(a)necessary to secure compliance with laws andregulations that are not inconsistent with this
Chapter; and(b)

not applied in a manner that would constitute a
disguised restriction on trade.

1

For the purposes of this Paragraph, “protection” includes matters affecting theavailability, acquisition, scope, maintenance, and enforcement of intellectual property
rights, as well as those matters affecting the use of intellectual property rights
specifically covered by this Chapter. Further, for the purposes of this Paragraph,“protection” also includes the prohibition on circumvention of effective technologicalmeasures specified in Article 5 (Copyright).

184

Article 5
Copyright
1.

2.

Each Party shall:(a)provide to authors of works2 the exclusive right toauthorise any communication to the public of
their works by wire or wireless means;(b)provide criminal procedures and penalties atleast in cases where a person wilfully infringes
copyright for commercial advantage or financial
gain; and(c)foster the establishment of appropriate bodies forthe collective management of copyright andencourage such bodies to operate in a mannerthat is efficient, publicly transparent andaccountable to their members.

Each Party shall endeavour to:(a)2

provide to authors of sound recordings 3 theexclusive right to authorise any communication to
the public of their sound recordings by wire or
wireless means;

For the purposes of this Chapter, “works” includes a cinematograph film.

3

Where a Party is, or becomes, a member of the WIPO Performances andPhonograms Treaty (WPPT), that Party’s obligations under this Paragraph shall be
subject to any commitments and reservations that Party has made under the WPPT.

185

(b)

provide adequate legal protection and effective
legal remedies against the circumvention ofeffective technological measures 4 that are usedby copyright owners in connection with theexercise of their copyright rights and that restrictacts, in respect of their works, which are notauthorised by the copyright owners concerned or
permitted by law; and(c)provide criminal procedures and penalties atleast in cases where a person wilfully commits asignificant infringement of copyright, that is notcommitted for commercial advantage or financial
gain and which is not otherwise permitted by law,
but which has a substantial prejudicial impact on
the owner of the copyright.
Article 6
Government Use of Software

Each Party confirms its commitment to:(a)maintain appropriate laws, regulations or policies
that make provision for its central government
agencies to continue to use only legitimate
computer software in a manner authorised by law
and consistent with this Chapter; and(b)encourage its respective regional and local
governments to maintain or adopt similar
measures.

4

For the purposes of this Chapter, “effective technological measures” means any
technology, device, or component that is used by copyright owners in connection withthe exercise of their copyright rights and that restricts acts, in respect of their works orsound recordings, which are not authorised by the copyright owners concerned or
permitted by law.

186

Article 7
Trademarks and Geographical Indications
1.
Each Party shall maintain a trademark classification
system that is consistent with the Nice Agreement
Concerning the International Classification of Goods andServices for the Purposes of the Registration of Marks, as
amended from time to time.
2.
Each Party shall provide high quality trademark rights
through the conduct of examination as to substance andformalities and through opposition and cancellation
procedures.
3.
Each Party shall protect trademarks where they
predate, in its jurisdiction, geographical indications inaccordance with its domestic law and the TRIPS Agreement.
4.
Each Party recognises that geographical indications
may be protected through a trademark system.
Article 8
Genetic Resources, Traditional Knowledge and Folklore
Subject to each Party’s international obligations, each Party
may establish appropriate measures to protect genetic
resources, traditional knowledge and folklore.
Article 9
Co-operation
1.
The Parties acknowledge the significant differences incapacity between some Parties in the area of intellectual
property. Mindful of this, where a Party’s implementation ofthis Chapter is inhibited by capacity constraints, each otherParty shall, as appropriate, and upon request, endeavour toprovide co-operation to that Party to assist in theimplementation of this Chapter.

187

2.
At the request of a Party, any other Party may, to theextent possible and as appropriate, render assistance to therequesting Party in order to enhance the requesting Party’s
national framework for the acquisition, protection,
enforcement, utilisation and creation of intellectual property,
with a view to developing intellectual property systems that
foster domestic innovation in the requesting Party.
3.
The Parties agree to promote dialogue on intellectual
property issues, including by:(a)designating
contact
pointsinrelevant
government agencies, including contact points forthe enforcement of intellectual property rights atthe border;(b)

encouraging interaction between intellectual
property experts in order to broaden
understanding of each others’ intellectual
property systems; and(c)exchanging
information
concerningtheinfringement of intellectual property rights, inaccordance with domestic law.

4.
The Parties shall endeavour to co-operate in order topromote the efficiency and transparency of intellectual
property administration and registration systems, includingby exchanging information regarding developments in such
systems and by developing publicly accessible databases ofregistered rights.
5.
The Parties shall endeavour to co-operate in order topromote education and awareness regarding the benefits ofeffective protection and enforcement of intellectual property
rights.

188

6.
Parties shall co-operate on border measures with aview to eliminating trade which infringes intellectual property
rights. Parties who are members of the WTO shall also cooperate with each other to support the effective
implementation of the requirements relating to bordermeasures set out in Articles 51 to 60 of the TRIPS
Agreement.
7.
Recognising the importance of achieving the objectivesof this Chapter, should any Party intend to accede to any of
the following treaties, it can seek to co-operate with otherParties to support its accession to, and its implementation of,
the following treaties:(a)the Patent Cooperation Treaty 1970;(b)

the Strasbourg Agreement Concerning
International Patent Classification 1971;(c)the Budapest Treaty on the International
Recognition of the Deposit of Micro-organisms for
the Purposes of Patent Procedure 1977;(d)the Protocol Relating to the Madrid Agreement
Concerning the International Registration ofMarks 1989;(e)the Patent Law Treaty 2000;(f)

the International Convention for the Protection of
New Varieties of Plants 1991;(g)

the TRIPS Agreement;(h)the Singapore Treaty on the Law of Trademarks
2006;

(i)

the WIPO Copyright Treaty 1996; and

189

the

(j)

the WIPO Performances and Phonograms Treaty
1996.

8.
Each Party shall, on request and as it considers
appropriate, endeavour to provide co-operation to support
any Party’s efforts to implement an inclusive system 5 oftrademark registration.
9.
All co-operation under this Article is subject to theavailability of resources.
Article 10
Transparency
1.
Each Party shall ensure that its laws and regulations ofgeneral application that pertain to the availability, scope,acquisition, enforcement and prevention of the abuse of
intellectual property rights are made publicly available in atleast the national language of that Party or in the English
language. Each Party shall also endeavour to provide that
final judicial decisions and administrative rulings pertaining to
the aforesaid matters are made publicly available in at least
the national language of that Party or in the English language.
2.
Each Party shall endeavour to make the informationreferred to in Paragraph 1, which is publicly available, madeavailable in the English language and on the internet.
3.
Each Party shall endeavour to make available on theinternet databases of all pending and registered trademark
rights in its jurisdiction.

5
An inclusive system of trademarks does not limit the scope of registrable
trademarks and thus permits the registration of all trademarks that are capable ofdistinguishing a good or service, such as shapes, aspects of packaging, single andmulti-colour marks, sounds and scents.

190

Article 11
Recognition of Transitional Periods under the TRIPS
Agreement
Nothing in this Chapter shall derogate from any transitional
period for implementing a provision of the TRIPS Agreementthat has been or may be agreed by the Council for TRIPS,
established pursuant to Article IV of the WTO Agreement,
either prior or subsequent to the entry into force of thisAgreement.
Article 12
Committee on Intellectual Property
1.
Recognising the importance of achieving the objectivesof this Chapter, the Parties hereby establish a Committee onIntellectual Property (IP Committee), consisting ofrepresentatives of the Parties to monitor the implementation
and administration of this Chapter.
2.
The IP Committee shall meet annually or as mutually
determined by the Parties. Meetings may be conducted inperson, or by any other means as mutually determined by
the Parties.
3.
The IP Committee shall determine its terms ofreference in accordance with this Chapter.
4.
The IP Committee shall determine its work programme
in response to priorities as identified by the Parties.
5.
In the course of fulfilling its functions, the IP Committee
may agree that existing or new mechanisms be utilised ordeveloped in order to promote dialogue between the Parties
on intellectual property issues, including by providing
opportunities for stakeholders to engage with the Parties onsuch issues.

191

6.
Each Party shall notify the IP Committee annually of its
progress in meeting its commitments under Article 5(Copyright), and developments regarding accession totreaties listed in Article 9.7 (Co-operation). These
notifications shall be submitted at least 30 days prior to thefirst IP Committee meeting of the year.

192

CHAPTER 14
COMPETITION
Article 1
Basic Principles
1.
The Parties recognise the importance of co-operationin the promotion of competition, economic efficiency,
consumer welfare and the curtailment of anti-competitive
practices.
2.
The Parties recognise the significant differences incapacity between ASEAN Member States, Australia and
New Zealand in the area of competition policy.
3.
The Parties respect the sovereign rights of each Party
to develop, set, administer and enforce its own competition
laws and policies.
4.
Nothing in this Chapter requires a Party to develop
specific competition related measures to address anticompetitive practices, or prevents a Party from adopting
policies in other fields, for example to promote economic
development.
Article 2
Co-operation
1.
The Parties may engage in co-operation activities
consistent with Article 1 (Basic Principles) in the field ofcompetition, including:(a)exchange of experience regarding the promotionand enforcement of competition law and policy;(b)

exchange of publicly available information about
competition law and policy;

193

(c)

exchange of officials for training purposes;(d)exchange of consultants
competition law and policy;(e)participation of officials as lecturers, consultants,
or participants at training courses on competition
law and policy;(f)participation of officials in advocacy programmes;(g)other related activities following the introductionof a competition law in a Party; and(h)any other form of technical co-operation asagreed upon by the Parties.

andexperts

on2.
Mindful of this, where implementation of this Chapter isinhibited by capacity constraints, Australia and New Zealand
may provide co-operation as they deem appropriate to assist
ASEAN Member States with such implementation. Cooperation is subject to competition policy-related needs being
identified and the availability of resources, having regards torespective Parties’ laws and regulations.
Article 3
Contact Points
To ensure that technical co-operation under this Chapter
occurs on an ongoing basis, the Parties shall designate
contact points for technical co-operation and informationexchange under this Chapter.

194

Article 4
Non-Application of Chapter 17 (Consultations and
Dispute Settlement)
Chapter 17 (Consultations and Dispute Settlement) shall not
apply to any matter arising under this Chapter.

195

CHAPTER 15
GENERAL PROVISIONS AND EXCEPTIONSArticle 1
General Exceptions
1.
For the purposes of Chapter 2 (Trade in Goods)
Chapter 3 (Rules of Origin) Chapter 4 (Customs
Procedures), Chapter 5 (Sanitary and Phytosanitary
Measures) and Chapter 6 (Standards, Technical Regulations
and Conformity Assessment Procedures), Article XX ofGATT 1994 shall be incorporated into and shall form part ofthis Agreement, mutatis mutandis.
2.
For the purposes of Chapter 8 (Trade in Services),
Chapter 9 (Movement of Natural Persons) and Chapter 11(Investment), Article XIV of GATS including its footnotes
shall be incorporated into and shall form part of thisAgreement, mutatis mutandis.
3.
For the purposes of this Agreement, the Parties
understand that measures referred to in Article XX(f) of
GATT 1994 include measures necessary to protect nationaltreasures or specific sites of historical or archaeologicalvalue, or measures necessary to support creative arts ofnational value.1
4.
For the purposes of Chapter 8 (Trade in Services) and
Chapter 11 (Investment), subject to the requirement thatsuch measures are not applied in a manner which would
1“Creative arts” include the performing arts – including theatre, dance and music –visual arts and craft, literature, film and video, language arts, creative on-line content,
indigenous traditional practice and contemporary cultural expression, and digitalinteractive media and hybrid art work, including those that use new technologies totranscend discrete art form divisions. The term encompasses those activities involvedin the presentation, execution and interpretation of the arts, and the study andtechnical development of these art forms and activities.

196

constitute a means of arbitrary or unjustifiable discrimination
between Parties where like conditions prevail, or a disguised
restriction on trade in services or investment, nothing inthese Chapters shall be construed to prevent the adoption or
enforcement by a Party of measures necessary to protect
national treasures or specific sites of historical orarchaeological value, or measures necessary to support
creative arts of national value.2
5.
A Party shall hold consultations with a view to reaching
agreement on any necessary adjustment required tomaintain the overall balance of commitments undertaken by
the Parties under Chapter 8 (Trade in Services) and Chapter
11 (Investment) if requested by a Party affected by themeasures referred to in Paragraph 4.
Article 2
Security Exceptions
1.

Nothing in this Agreement shall be construed:(a)to require any Party to furnish any information thedisclosure of which it considers contrary to its
essential security interests;(b)

to prevent any Party from taking any action whichit considers necessary for the protection of its
essential security interests:(i)relating to fissionable materials or thematerials from which they are derived;

2“Creative arts” include the performing arts – including theatre, dance and music –visual arts and craft, literature, film and video, language arts, creative on-line content,
indigenous traditional practice and contemporary cultural expression, and digitalinteractive media and hybrid art work, including those that use new technologies totranscend discrete art form divisions. The term encompasses those activities involvedin the presentation, execution and interpretation of the arts, and the study andtechnical development of these art forms and activities.

197

(c)

(ii)

relating to the traffic in arms, ammunition
and implements of war and to such traffic inother goods and materials, or relating to the
supply of services, as carried on directly or
indirectly for the purpose of supplying orprovisioning a military establishment;(iii)

taken so as to protect critical public
infrastructures 3 including communications,power and water infrastructures fromdeliberate attempts intended to disable ordegrade such infrastructures;(iv)

taken in time of national emergency or war
or other emergency in international
relations; orto prevent any Party from taking any action inpursuance of its obligations under the United
Nations Charter for the maintenance ofinternational peace and security.

2.
The FTA Joint Committee shall be informed to thefullest extent possible of measures taken under Paragraph1(b) and (c) and of their termination.
Article 3
Taxation Measures
1.
Except as provided in this Article, nothing in thisAgreement shall apply to taxation measures.
2.
This Agreement shall only grant rights or impose
obligations with respect to taxation measures where:(a)corresponding rights and obligations are also
granted or imposed under the WTO Agreement;

3

For clarity, this includes critical public infrastructures whether publicly or privately
owned.

198

(b)they are granted or imposed under Article 8(Transfers) of Chapter 11 (Investment); or(c)they are granted or imposed under Article 9(Expropriation and Compensation) of Chapter 11(Investment).

3.
Where Paragraph 2(b) or (c) apply, Section B(Investment Disputes between a Party and an Investor) of
Chapter 11 (Investment) shall also apply in respect oftaxation measures.
4.
If there is a dispute described in Article 18.1 (Scopeand Definitions) of Chapter 11 (Investment) that may relate
to a taxation measure, the relevant Parties, including
representatives of their tax administrations, shall holdconsultations. Any tribunal established pursuant to Section B(Investment Disputes between a Party and an Investor) of
Chapter 11 (Investment) shall accord serious consideration
to a joint decision of the relevant Parties as to whether themeasure in question is a taxation measure. For this purpose,
Article 25.7 (Conduct of the Arbitration) of Chapter 11(Investment) shall apply mutatis mutandis.
5.
Nothing in this Agreement shall affect the rights andobligations of any Party under any tax convention relating to
the avoidance of double taxation in force between any of theParties. In the event of any inconsistency relating to a
taxation measure between this Agreement and any such tax
convention, the latter shall prevail. Any consultations
between the relevant Parties about whether an inconsistency
relates to a taxation measure shall be done by the competenttax authorities, as stipulated under the domestic laws andregulations of the relevant Parties. The request for suchconsultations shall be addressed through the contact points
designated in accordance with Article 2 (Communications) ofChapter 16 (Institutional Provisions).

199

6.
Nothing in this Agreement shall oblige a Party toextend to any other Party the benefit of any treatment,
preference or privilege arising from any existing or futureagreement relating to the avoidance of double taxation orfrom the provisions on the avoidance of double taxation in
any other international agreement or arrangement by which
the Party is bound.
7.
For the purposes of this Article, taxation measures do
not include any import or customs duties.
Article 4
Measures to Safeguard the Balance of Payments
1.
Where a Party is in serious balance of payments andexternal financial difficulties or under threat thereof, it may:(a)in the case of trade in goods, in accordance withGATT 1994 and the Understanding on the
Balance-of-Payments Provisions of the General
Agreement on Tariffs and Trade 1994 in Annex
1A to the WTO Agreement, adopt restrictive
import measures;(b)in the case of trade in services, adopt or maintain
restrictions on trade in services on which it has
undertaken specific commitments, including on
payments or transfers for transactions related tosuch commitments;(c)in the case of investments, adopt or maintain
restrictions on payments or transfers related tocovered investments as defined in Article 2(a)(Definitions) of Chapter 11 (Investment)

2.
Restrictions adopted or maintained under Paragraph1(b) or (c) shall:(a)be consistent with the IMF Articles of Agreement;

200

3.

(b)

avoid unnecessary damage to the commercial,economic and financial interests of any otherParty;(c)

not exceed those necessary to deal with thecircumstances described in Paragraph 1;(d)be temporary and be phased out progressively as
the situation specified in Paragraph 1 improves;
and

(e)

be applied on a non-discriminatory basis suchthat no Party is treated less favourably than any
other Party or non-Party.

With respect to trade in services and investment,(a)

it is recognised that particular pressures on thebalance of payments of a Party in the process of
economic development or economic transition
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 or
economic transition;(b)in determining the incidence of such restrictions,a Party may give priority to economic sectors
which are more essential to their economic ordevelopment programmes. However, such
restrictions shall not be adopted or maintained forthe purpose of protecting a particular sector.

4.
Any restrictions adopted or maintained by a Party
under Paragraph 1, or any changes therein, shall be notified
promptly to the other Parties.

201

5.
A Party adopting or maintaining any restrictions underParagraph 1 shall:(a)in the case of investment, respond to any otherParty that requests consultations in relation to therestrictions adopted by it, if such consultations
are not otherwise taking place outside thisAgreement;(b)in the case of trade in services, if consultations inrelation to the restrictions adopted by it are nottaking place at the WTO, a Party, if requested,
shall promptly commence consultations with any
interested Party.
Article 5Treaty of Waitangi

1.
Provided that such measures are not used as a meansof arbitrary or unjustified discrimination against persons of
the other Parties or as a disguised restriction on trade ingoods and services, nothing in this Agreement shall preclude
the adoption by New Zealand of measures it deems
necessary to accord more favourable treatment to Maori inrespect of matters covered by this Agreement including infulfillment of its obligations under the Treaty of Waitangi.
2.
The Parties agree that the interpretation of the Treatyof Waitangi, including as to the nature of the rights andobligations arising under it, shall not be subject to the disputesettlement provisions of this Agreement. Chapter 17(Consultations and Dispute Settlement) shall otherwise apply
to this Article. An arbitral tribunal established pursuant to
Article 11 (Establishment and Re-convening of Arbitral
Tribunals) of Chapter 17 (Consultations and Dispute
Settlement) may be requested to determine only whether any
measure (referred to in Paragraph 1) is inconsistent with
their rights under this Agreement.

202

CHAPTER 16
INSTITUTIONAL PROVISIONS
Article 1
FTA Joint Committee
1.
The Parties hereby establish a free trade agreement
joint committee (the FTA Joint Committee) consisting ofrepresentatives of the Parties.
2.

The functions of the FTA Joint Committee shall be to:(a)review the implementation and operation of thisAgreement;(b)consider and recommend to the Parties any
amendments to this Agreement;(c)supervise and co-ordinate the work of all
subsidiary bodies established pursuant to thisAgreement;(d)adopt, where appropriate, decisions andrecommendationsofsubsidiarybodiesestablished pursuant to this Agreement;(e)consider any other matter that may affect theoperation of this Agreement or that is entrusted to
the FTA Joint Committee by the Parties; and(f)carry out any other functions as the Parties may
agree.

3.
In the fulfillment of its functions, the FTA Joint
Committee may establish additional subsidiary bodies,including ad hoc bodies, and assign them with tasks on
specific matters, or delegate its responsibilities to any

203subsidiary body established pursuant to this Agreement
including:(a)Goods Committee established pursuant to Article
11 (Committee on Trade in Goods) of Chapter 2(Trade in Goods):(i)

ROO Sub-Committee established pursuant
to Article 18 (Sub-Committee on Rules ofOrigin) of Chapter 3 (Rules of Origin);(ii)

SPS Sub-Committee established pursuant
to Article 10 (Meetings Among the Parties
on Sanitary and Phytosanitary Matters) ofChapter 5 (Sanitary and Phytosanitary
Measures); and(iii)

STRACAP Sub-Committee establishedpursuant to Article 13 (Sub-Committee onStandards, Technical Regulations andConformity Assessment Procedures) ofChapter
6(Standards,
Technical
Regulations and Conformity Assessment
Procedures);(b)Services Committee established pursuant to
Article 24 (Committee on Trade in Services) ofChapter 8 (Trade in Services);(c)

Investment Committee established pursuant to
Article 17 (Committee on Investment) of Chapter
11 (Investment); and(d)

IP Committee established pursuant to Article 12(Committee on Intellectual Property) of Chapter
13 (Intellectual Property).

4.
The FTA Joint Committee shall establish its rules andprocedures at its first meeting.

204

5.
Unless the Parties agree otherwise, the FTA Joint
Committee shall convene its first meeting within one year
after this Agreement enters into force. Its subsequentmeetings shall be convened at such frequency as the Parties
may mutually determine, and as necessary to discharge its
functions under this Agreement. The FTA Joint Committee
shall convene alternately in ASEAN Member States,
Australia and New Zealand, unless the Parties agree
otherwise. Special meetings of the FTA Joint Committee may
be convened, as agreed by the Parties, within 30 days upon
the request of a Party.
6.
The FTA Joint Committee shall regularly report to theconsultations of the ASEAN Economic Ministers, the Trade
Minister of Australia and the Trade Minister of New Zealandthrough the meetings of their Senior Economic Officials.
Article 2
Communications
Each Party shall designate a contact point to facilitatecommunications among the Parties on any matter relating tothis Agreement. All official communications in this regard
shall be in the English language.

205

CHAPTER 17
CONSULTATIONS AND DISPUTE SETTLEMENTSECTION A
Introductory Provisions
Article 1
Objectives
The objective of this Chapter is to provide an effective,
efficient and transparent process for consultations andsettlement of disputes arising under this Agreement.
Article 2
Definitions
For the purposes of this Chapter, the following definitions
shall apply unless the context otherwise requires:(a)Complaining Party means any Party or Parties
that request consultations under Article 6(Consultations);(b)

dispute arising under this Agreement means acomplaint made by a Party concerning any
measure affecting the operation, implementation
or application of this Agreement whereby any
benefit accruing to the Complaining Party directly
or indirectly under this Agreement is being
nullified or impaired, or the attainment of any
objective of this Agreement is being impeded, asa result of the failure of the Responding Party tocarry out its obligations1 under this Agreement2;

1

A failure to carry out its obligations includes application by the Responding Party of
any measure which is in conflict with the obligations under this Agreement.
2
Non-violation complaints are not permitted under this Agreement.

206

(c)

Parties to the dispute means the Complaining
Party and the Responding Party;(d)Responding Party means any Party to which therequest for consultations is made under Article 6(Consultations); and(e)

Third Party means any Party who has notified its
substantial trade interest or substantial interest in
the matter pursuant to Article 6.7 (Consultations)or Article 10.1 (Third Parties) respectively.
Article 3
Scope and Coverage

1.
Except as otherwise provided in this Agreement, this
Chapter shall apply to the avoidance or settlement ofdisputes arising under this Agreement. This Chapter shall not
apply to the settlement of disputes arising under Chapter 5(Sanitary and Phytosanitary Measures), Chapter 10(Electronic Commerce), Chapter 12 (Economic Cooperation) and Chapter 14 (Competition).
2.
This Chapter shall apply subject to such special andadditional provisions on dispute settlement contained in other
Chapters of this Agreement.
3.
Subject to Article 5 (Choice of Forum), this Chapter is
without prejudice to the rights of a Party to have recourse todispute settlement procedures available under otheragreements to which it is a party.
4.
This Chapter may be invoked in respect of measures
affecting the observance of this Agreement taken by central,regional or local governments or authorities within the
territory of a Party.

207

Article 4
General Provisions
1.
This Agreement shall be interpreted in accordance withthe customary rules of treaty interpretation of public
international law.
2.
All notifications, requests and replies made pursuant tothis Chapter shall be in writing.
3.
The Parties to the dispute are encouraged at every
stage of a dispute to make every effort to reach a mutuallyagreed solution to the dispute. Where a mutually agreed
solution is reached, the terms and conditions of theagreement shall be notified to the other Parties.
4.
Unless otherwise specified, any time periods provided
for in this Chapter may be modified by mutual agreement of
the Parties to the dispute provided that any modification shallnot prejudice the rights of the Third Parties pursuant to
Article 10 (Third Parties).
Article 5
Choice of Forum
1.
Where a dispute concerning any matter arises under
this Agreement and under another international agreement towhich the Parties to the dispute are party, the Complaining
Party may select the forum in which to address that matterand that forum shall be used to the exclusion of otherpossible fora in respect of that matter.
2.
For the purposes of this Article, the Complaining Party
shall be deemed to have selected the forum in which to settle
the dispute when it has requested the establishment of anarbitral tribunal pursuant to Article 8 (Request for
Establishment of Arbitral Tribunals) or requested theestablishment of, or referred a matter to, a similar disputesettlement panel under another international agreement.

208

3.
This Article does not apply where the Parties to thedispute agree in writing that this Article shall not apply to aparticular dispute.
SECTION B
Consultation Provisions
Article 6
Consultations
1.
Any Party may request consultations with any otherParty with respect to any dispute arising under thisAgreement. A Responding Party shall accord due
consideration to a request for consultations made by aComplaining Party and shall accord adequate opportunity forsuch consultations.
2.
Any request for consultations shall give the reasons forthe request, including identification of the measures at issue
and an indication of the legal basis for the complaint.
3.
A copy of all such requests shall be simultaneously
provided to all Parties. The Responding Party shallimmediately acknowledge receipt of the request by way of
notification to all Parties, indicating the date on which therequest was received.
4.
The Responding Party shall, unless otherwise mutuallyagreed, reply to the request within seven days after the dateof its receipt and shall enter into consultations within a periodof no more than:(a)ten days after the date of receipt of the request incases of urgency, including perishable goods; or(b)

30 days after the date of receipt of the request for
all other matters.

209

5.
If the Responding Party does not enter into
consultations within the periods specified in Paragraph 4, ora period otherwise mutually agreed, the Complaining Party
may proceed directly to request the establishment of anarbitral tribunal pursuant to Article 8 (Request for
Establishment of Arbitral Tribunals).
6.
The Parties to the dispute shall make every effort toreach a mutually satisfactory solution through consultations.
To this end, the Parties to the dispute shall:(a)provide sufficient information to enable a full
examination of the matter, including how themeasures
at
issue
might
affecttheimplementation or application of this Agreement;(b)treat any confidential or proprietary informationexchanged in the course of consultations on thesame basis as the Party providing theinformation; and(c)endeavour to make available for the
consultations personnel of its government
agencies or other regulatory bodies who have
responsibility for and/or expertise in the matter
under consultation.

7.
Whenever a Party other than the Parties to the disputeconsiders that it has a substantial trade interest in the
consultations, such Party may notify the Parties to thedispute within seven days after the notification of the request
for consultations, of its desire to be joined in the
consultations. Such notification shall be simultaneously
provided to all Parties. Such Party shall be joined in the
consultations if the Parties to the dispute agree.

210Article 7
Good Offices, Conciliation, Mediation
1.
The Parties to the dispute may at any time agree togood offices, conciliation or mediation. Procedures for good
offices, conciliation or mediation may begin at any time andmay be terminated at any time.
2.
If the Parties to the dispute agree, procedures for good
offices, conciliation or mediation may continue while thematter is being examined by an arbitral tribunal establishedor re-convened under this Chapter.
3.
Proceedings involving good offices, conciliation andmediation and positions taken by the Parties to the disputeduring these proceedings shall be confidential and without
prejudice to the rights of any Parties to the dispute in any
further or other proceedings.
SECTION C
Adjudication Provisions
Article 8
Request for Establishment of Arbitral Tribunals
1.
The Complaining Party may request the establishmentof an arbitral tribunal to consider the matter if:(a)the Responding Party does not enter into
consultations in accordance with Article 6.4(Consultations); or(b)

if the consultations fail to resolve a dispute within:(i)

20 days after the date of receipt of therequest for consultations in cases ofurgency including perishable goods;

211

(ii)

60 days after the date of receipt of therequest for consultations regarding anyother matter; or(iii)such other period as the Parties to thedispute may agree.

2.
A request made pursuant to Paragraph 1 shall identify
the specific measures at issue and provide details of thefactual and legal basis of the complaint (including theprovisions of this Agreement to be addressed by the arbitral
tribunal) sufficient to present the problem clearly.
3.
A copy of all such requests shall be simultaneously
provided to all Parties. The Responding Party shallimmediately acknowledge receipt of the request by way of
notification to all Parties, indicating the date on which therequest was received.
4.
Where a request is made pursuant to Paragraph 1, an
arbitral tribunal shall be established in accordance with
Article 11 (Establishment and Re-convening of Arbitral
Tribunals).
Article 9
Procedures for Multiple Complainants
1.
Where more than one Party requests the establishmentof an arbitral tribunal related to the same matter, a single
arbitral tribunal may be established to examine thesecomplaints if all of the Parties to the disputes agree. The
Parties to the disputes should seek to establish a single
arbitral tribunal whenever feasible.
2.
The single arbitral tribunal shall organise its
examination and present its findings in such a manner thatthe rights which the Parties to the dispute would have212

enjoyed had separate arbitral tribunals examined thecomplaints are in no way impaired.
3.
If more than one arbitral tribunal is established to
examine the complaints related to the same matter, theParties to the disputes shall endeavour to ensure that thesame persons serve as arbitrators for each arbitral tribunal.
The arbitral tribunals shall consult to ensure, to the greatest
extent possible, that the timetables for the arbitral tribunal
processes are harmonised.
Article 10
Third Parties
1.
Any Party having a substantial interest in a matter
before an arbitral tribunal may notify the Parties to thedispute of this interest no later than ten days after the date ofreceipt by the Responding Party of the request for theestablishment of the arbitral tribunal or the date of a request
for a Compliance Review Tribunal pursuant to Article 16(Compliance Review). Such notification shall besimultaneously provided to all Parties. Any Party notifying its
substantial interest shall have the rights and obligations of a
Third Party.
2.
A Third Party shall receive the submissions of theParties to the dispute to the first substantive meeting of thearbitral tribunal with the Parties to the dispute.
3.
A Third Party shall have an opportunity to make atleast one written submission to the arbitral tribunal and shallhave an opportunity to be heard by the arbitral tribunal at its
first substantive meeting with the Parties to the dispute. Any
submissions or other documents submitted by Third Parties
shall be simultaneously provided to the Parties to the disputeand other Third Parties.
4.
The Parties to the dispute may agree to provide
additional or supplemental rights to Third Parties regarding213

participation in arbitral tribunal proceedings. In providing
additional or supplemental rights, the Parties to the dispute
may impose conditions. Unless otherwise agreed by theParties to the dispute, the arbitral tribunal shall not grant any
additional or supplemental rights to any Third Parties
regarding participation in arbitral tribunal proceedings.
5.
If a Third Party considers that a measure already the
subject of an arbitral tribunal proceeding nullifies or impairs
benefits accruing to it under this Agreement, such Party may
have recourse to dispute settlement procedures under this
Chapter.
Article 11
Establishment and Re-convening of Arbitral Tribunals
1.
An arbitral tribunal requested pursuant to Article 8(Request for Establishment of Arbitral Tribunals) shall beestablished in accordance with this Article.
2.
Unless the Parties to the dispute otherwise agree, thearbitral tribunal shall consist of three arbitrators. All
appointments and nominations of arbitrators under this
Article shall conform fully with the requirements in
Paragraphs 9 and 10.
3.
Within five days of the date of the receipt of a request
under Article 8 (Request for Establishment of Arbitral
Tribunals), the Parties to the dispute shall enter into
consultations with a view to reaching agreement on theprocedures for composing the arbitral tribunal, taking into
account the factual, technical and legal circumstances of the
dispute. The Parties to the dispute may agree to use any of
the optional procedures specified in this Chapter’s Annex on
Optional Procedures for Composing Arbitral Tribunals. Anyprocedures for composing the arbitral tribunal which areagreed under this Paragraph shall be used for thecomposition of the arbitral tribunal and shall also be used forthe purposes of Paragraphs 12 and 13.

214

4.
If the Parties to the dispute are unable to reachagreement on the procedures for composing the arbitral
tribunal within 15 days of the date of the receipt of therequest referred to in Paragraph 3, any Party to the dispute
may at any time thereafter notify the other Parties to thedispute that it wishes to use the procedures set forth inParagraphs 5 to 7. Where such a notification is made, thearbitral tribunal shall be composed in accordance with
Paragraphs 5 to 7.
5.
The Complaining Party or Parties shall appoint one
arbitrator within ten days of the date of the receipt of thenotification referred to in Paragraph 4. The Responding Party
shall appoint one arbitrator within 20 days of the date of thereceipt of the notification referred to in Paragraph 4.
6.
Following the appointment of the arbitrators inaccordance with Paragraph 5, the Parties to the dispute shallagree on the appointment of the third arbitrator who shallserve as the chair of the arbitral tribunal. To assist inreaching this agreement, each of the Parties to the dispute
may provide to the other Parties to the dispute a list of up to
three nominees for appointment as the chair of the arbitral
tribunal. If the Parties to the dispute have not agreed on thechair of the arbitral tribunal within 15 days of the appointmentof the second arbitrator, the two appointed arbitrators shalldesignate by common agreement the third arbitrator who
shall chair the arbitral tribunal.
7.
If all three arbitrators have not been appointed within
45 days of the date of the receipt of the notification referred
to in Paragraph 4, any Party to the dispute may request the
Director-General of the WTO to make the remaining
appointments within a further period of 15 days. Any lists ofnominees which were provided under Paragraph 6 shall also
be provided to the Director-General of the WTO and may be
used in making the required appointments.

215

8.
The date of establishment of the arbitral tribunal shallbe the date on which the last arbitrator is appointed.
9.

All arbitrators shall:(a)have expertise or experience in law, international
trade, other matters covered by this Agreement,or the resolution of disputes arising underinternational trade agreements;(b)

be chosen strictly on the basis of objectivity,
reliability, and sound judgement;(c)be independent of, and not be affiliated with ortake instructions from, any Party to the dispute;(d)

not have dealt with the matter in any capacity;
and

(e)

disclose, to the Parties to the dispute, information
which may give rise to justifiable doubts as totheir independence or impartiality.

10. Unless the Parties to the dispute otherwise agree,
arbitrators shall not be nationals of a Party to the dispute. In
addition, the chair of arbitral tribunal shall not have his or her
usual place of residence in the territory of a Party to thedispute.
11. Arbitrators shall serve in their individual capacities andnot as government representatives, nor as representatives ofany organisation. Parties shall not give them instructions nor
seek to influence them as individuals with regard to matters
before an arbitral tribunal.
12. If an arbitrator appointed under this Article resigns or
becomes unable to act, a successor arbitrator shall be
appointed in the same manner as prescribed for theappointment of the original arbitrator and shall have all the216powers and duties of the original arbitrator. The work of thearbitral tribunal shall be suspended during the appointmentof the successor arbitrator.
13. Where an arbitral tribunal is re-convened under Article
16 (Compliance Review) or Article 17 (Compensation and
Suspension of Concessions or other Obligations) the reconvened arbitral tribunal shall, where possible, have thesame arbitrators as the original arbitral tribunal. Where this is
not possible, the replacement arbitrator(s) shall be appointed
in the same manner as prescribed for the appointment of theoriginal arbitrator(s), and shall have all the powers and dutiesof the original arbitrator(s).
Article 12
Functions of Arbitral Tribunals
1.
An arbitral tribunal shall make an objective assessmentof the matter before it, including an objective assessment of:(a)the facts of the case;(b)

the applicability of the provisions of thisAgreement cited by the Parties to the dispute;
and

(c)

whether the Responding Party has failed to carryout its obligations under this Agreement.

2.
An arbitral tribunal shall have the following terms ofreference unless the Parties to the dispute agree otherwise
within 20 days from the date of the establishment of anarbitral tribunal:“To examine, in the light of the relevant
provisions of this Agreement, the matter
referred to in the request for establishmentof an arbitral tribunal made pursuant to
Article 8 (Request for Establishment of217

Arbitral Tribunals), and to make suchfindings and if applicable, suggestions
provided for in this Agreement.”
The arbitral tribunal shall make its findings in accordancewith this Agreement.
3.

The arbitral tribunal shall set out in its report:(a)a descriptive section summarising the argumentsof the Parties to the dispute and Third Parties;(b)

its findings on the facts of the case and on theapplicability of the provisions of this Agreement;(c)

its findings on whether the Responding Party has
failed to carry out its obligations under thisAgreement; and(d)its reasons for its findings in Subparagraphs (b)and (c).

4.
In addition to Paragraph 3, an arbitral tribunal may
include in its report any other findings jointly requested by
the Parties to the dispute. The arbitral tribunal may suggest
ways in which the Responding Party could implement thefindings.
5.
Unless the Parties to the dispute otherwise agree, anarbitral tribunal shall base its report solely on the relevant
provisions of this Agreement and the submissions andarguments of the Parties to the dispute. An arbitral tribunal
shall only make the findings and suggestions provided for inthis Agreement.
6.
The interests of Third Parties and those of otherParties shall be fully taken into account during the arbitral
tribunal proceedings. Third Parties’ submissions shall bereflected in the report of the arbitral tribunal.

218

7.
The findings and suggestions of the arbitral tribunal
cannot add to or diminish the rights and obligations provided
in this Agreement or any other international agreement.
8.
The arbitral tribunal shall consult regularly the Parties
to the dispute and provide adequate opportunities for thedevelopment of a mutually satisfactory solution to the dispute.
9.
An arbitral tribunal re-convened under this Chapter
shall also carry out functions with regard to compliancereview under Article 16 (Compliance Review) and review oflevel of suspension of concessions or other obligations under
Article 17 (Compensation and Suspension of Concessions orother Obligations). Paragraphs 1 to 3 shall not apply to anarbitral tribunal re-convened under Article 16 (Compliance
Review) and Article 17 (Compensation and Suspension ofConcessions or other Obligations).
10. An arbitral tribunal shall make its findings byconsensus provided that where an arbitral tribunal is unable
to reach consensus it may make its findings by majority vote.
Article 13
Arbitral Tribunal Procedures
1.
An arbitral tribunal established pursuant to Article 11(Establishment and Re-convening of Arbitral Tribunals) shalladhere to this Chapter. The arbitral tribunal shall apply therules of procedure set out in this Chapter’s Annex on Rulesof Procedure for Arbitral Tribunal Proceedings (Rules ofProcedure Annex) unless the Parties to the dispute agree
otherwise. On the request of a Party to the dispute, or on its
own initiative, the arbitral tribunal may, after consulting theParties to the dispute, adopt additional rules of procedure
which do not conflict with the provisions of this Chapter orwith the Rules of Procedure Annex.

219

2.
An arbitral tribunal re-convened under Article 16(Compliance Review) or Article 17 (Compensation and
Suspension of Concessions or other Obligations) may
establish its own procedures which do not conflict with this
Chapter or the Rules of Procedure Annex, in consultation
with the Parties to the dispute, drawing as it deems
appropriate from this Chapter or the Rules of Procedure
Annex.
Timetable
3.
After consulting the Parties to the dispute, an arbitral
tribunal shall, as soon as practicable and whenever possible
within 15 days after the establishment of the arbitral tribunal,
fix the timetable for the arbitral tribunal process. The arbitral
tribunal process, from the date of establishment until the dateof the final report shall, as a general rule, not exceed theperiod of nine months, unless the Parties to the disputeagree otherwise.
4.
Similarly, a Compliance Review Tribunal re-convened
pursuant to Article 16 (Compliance Review) shall, as soon aspracticable and whenever possible within 15 days after reconvening, fix the timetable for the compliance review
process taking into account the time periods specified in
Article 16 (Compliance Review).
Arbitral Tribunal Proceedings
5.
Arbitral tribunal proceedings should provide sufficient
flexibility so as to ensure high-quality reports, while notunduly delaying the arbitral tribunal process.
6.
Arbitral tribunal deliberations shall be confidential. The
Parties to the dispute and Third Parties shall be present only
when invited by the arbitral tribunal to appear before it. An
arbitral tribunal shall hold its hearings in closed session
unless the Parties to the dispute agree otherwise. All
presentations and statements made at hearings shall be220made in the presence of the Parties to the dispute. There
shall be no ex parte communications with the arbitral tribunal
concerning matters under consideration by it.
Submissions
7.
Each Party to the dispute shall have an opportunity to
set out in writing the facts of its case, its arguments andcounter arguments. The timetable fixed by the arbitral
tribunal shall include precise deadlines for submissions by
the Parties to the dispute and Third Parties.
Hearings
8.
The timetable fixed by the arbitral tribunal shall provide
for at least one hearing for the Parties to the dispute topresent their case to the arbitral tribunal. As a general rule,the timetable shall not provide more than two hearings
unless special circumstances exist.
9.
The venue for hearings shall be decided by mutual
agreement between the Parties to the dispute. If there is noagreement, the venue shall alternate between the capitals of
the Parties to the dispute with the first hearing to be held in
the capital of the Responding Party.
Confidentiality
10. Written submissions to the arbitral tribunal shall betreated as confidential, but shall be made available to theParties to the dispute. No Party to the dispute shall beprecluded from disclosing statements of its own positions to
the public provided that there is no disclosure of information
which has been designated as confidential by a Party to thedispute or Third Party. The Parties to the dispute, Third
Parties and the arbitral tribunal shall treat as confidential
information submitted by a Party to the dispute to the arbitral
tribunal which that Party has designated as confidential. A
Party to the dispute shall upon request of a Party, provide a

221non-confidential summary of the information contained in its
written submissions that could be disclosed to the public.
Additional Information and Technical Advice
11. The Parties to the dispute and Third Parties shall
respond promptly and fully to any request by an arbitral
tribunal for such information as the arbitral tribunal considers
necessary and appropriate.
12. An arbitral tribunal may seek information and technicaladvice from any individual or body which it deems
appropriate. However, before doing so the arbitral tribunal
shall seek the views of the Parties to the dispute. Where theParties to the dispute agree that the arbitral tribunal should
not seek the additional information or technical advice, thearbitral tribunal shall not proceed. The arbitral tribunal shallprovide the Parties to the dispute with any information or
technical advice it receives and an opportunity to provide
comments.
Report13. The arbitral tribunal shall provide to the Parties to thedispute an interim report, meeting the requirements specified
in Article 12.3 (Functions of Arbitral Tribunals).
14. The interim report shall be provided at least four weeks
before the deadline for completion of the final report. The
arbitral tribunal shall accord adequate opportunity to theParties to the dispute to review the entirety of its interim
report prior to its finalisation and shall include a discussion of
any comments made by the Parties to the dispute in its final
report.
15. The interim and final report of the arbitral tribunal shallbe drafted without the presence of the Parties to the dispute.
Opinions expressed in the report of the arbitral tribunal by its
individual members shall be anonymous.

222

16. The arbitral tribunal shall provide its final report to allother Parties seven days after the report is presented to theParties to the dispute, and at any time thereafter a Party to
the dispute may make the report publicly available subject tothe protection of any confidential information contained in thereport.
Article 14
Suspension and Termination of Proceedings
1.
The Parties to the dispute may agree that the arbitral
tribunal suspend its work at any time for a period notexceeding 12 months from the date of such agreement.
Within this period, the suspended arbitral proceeding shall beresumed upon the request of any Party to the dispute. If thework of the arbitral tribunal has been continuously
suspended for more than 12 months, the authority forestablishment of the arbitral tribunal shall lapse unless theParties to the dispute agree otherwise.
2.
The Parties to the dispute may agree to terminate theproceedings of an arbitral tribunal in the event that a mutuallysatisfactory solution to the dispute has been found.
3.
Before the arbitral tribunal presents its final report, it
may at any stage of the proceedings propose to the Parties
to the dispute that the dispute be settled amicably.
4.
The Parties to the dispute shall notify the other Parties
that the arbitral tribunal has been suspended, terminated or
its authority has lapsed pursuant to Paragraph 1.

223

SECTION D
Implementation Provisions
Article 15
Implementation
1.
Where an arbitral tribunal finds that the Responding
Party has failed to carry out its obligations under thisAgreement, the Responding Party shall comply with its
obligations under this Agreement.
2.
Within 30 days of the date of the presentation of thearbitral tribunal’s final report to the Parties to the dispute, theResponding Party shall notify the Complaining Party:(a)of its intentions with respect to implementation,
including an indication of possible actions it may
take to comply with the obligation in Paragraph 1;(b)whether such implementation can take place
immediately; and(c)

if such implementation cannot take place
immediately, the reasonable period of time the
Responding Party would need to implement.

3.
If it is impracticable to comply immediately with the
obligation in Paragraph 1, the Responding Party shall have areasonable period of time to do so.
4.
If a reasonable period of time is required, it shall,whenever possible, be mutually agreed by the Parties to thedispute. Where the Parties to the dispute are unable to agree
on the reasonable period of time within 45 days of the date of
the presentation of the arbitral tribunal’s final report to theParties to the dispute, any Party to the dispute may requestthat the chair of the arbitral tribunal determine the reasonable224

period of time. Unless the Parties to the dispute otherwise
agree, such requests shall be made no later than 120 days
from the date of the presentation of the arbitral tribunal’s final
report to the Parties to the dispute.
5.
Where a request is made pursuant to Paragraph 4, thechair of the arbitral tribunal shall present the Parties to thedispute with a report containing a determination of thereasonable period of time and the reasons for suchdetermination within 45 days of the date of the request.
6.
As a guideline, the reasonable period of time
determined by the chair of the arbitral tribunal should notexceed 15 months from the date of the presentation of thearbitral tribunal’s final report to the Parties to the dispute.
However, such reasonable period of time may be shorter or
longer, depending upon the particular circumstances.
Article 16Compliance Review
1.
Where the Parties to the dispute disagree on theexistence or consistency with this Agreement of measurestaken to comply with the obligation in Article 15.1
(Implementation), such dispute shall be decided throughrecourse to an arbitral tribunal re-convened for this purpose(Compliance Review Tribunal). 3 Unless otherwise specified
in this Chapter, a Compliance Review Tribunal may be
convened at the request of any Party to the dispute.
2.

3Such request may only be made after the earlier of:(a)the expiry of the reasonable period of time; or(b)a notification to the Complaining Party by the
Responding Party that it has complied with the
obligation in Article 15.1 (Implementation).

Consultations under Article 6 (Consultations) are not required for these procedures.

225

3.
A Compliance Review Tribunal shall make an objective
assessment of the matter before it, including an objective
assessment of:(a)the factual aspects of any implementation action
taken by the Responding Party; and(b)whether the Responding Party has complied withthe obligation in Article 15.1 (Implementation).

4.
The Compliance Review Tribunal shall set out in its
report:(a)a descriptive section summarising the argumentsof the Parties to the dispute and Third Parties;(b)

its findings on the factual aspects of the case;
and

(c)

its findings on whether the Responding Party hascomplied with the obligation in Article 15.1
(Implementation).

5. The Compliance Review Tribunal shall, where possible,
provide its interim report to the Parties to the dispute within
75 days of the date it re-convenes, and its final report 15
days thereafter. When the Compliance Review Tribunal
considers that it cannot provide either report within therelevant timeframe, it shall inform the Parties to the disputein writing of the reasons for the delay together with anestimate of the period within which it will submit the report.
6.
Where an arbitral tribunal is requested to re-convenepursuant to Paragraph 1, it shall re-convene within 15 daysof the date of the request. The period from the date of therequest for the arbitral tribunal to re-convene to thesubmission of its final report shall not exceed 120 days,
unless Article 11.12 (Establishment and Re-convening of226

Arbitral Tribunals) applies or the Parties to the disputeotherwise agree.
Article 17Compensation and Suspension of Concessions or otherObligations
1.
Compensation and the suspension of concessions orother obligations are temporary measures available in theevent that the Responding Party does not comply with its
obligation under Article 15.1 (Implementation). However,neither compensation nor the suspension of concessions orother obligations is preferred to compliance with the
obligation
under
Article15.1(Implementation).
Compensation is voluntary and, if granted, shall beconsistent with this Agreement.
2.

Where either of the following circumstances exists:(a)the Responding Party has notified theComplaining Party that it does not intend tocomply with the obligation in Article 15.1
(Implementation); or(b)a failure to comply with the obligation in Article
15.1 (Implementation) has been established inaccordance with Article 16 (Compliance Review),

the Responding Party shall, if so requested by theComplaining Party, enter into negotiations with a view todeveloping mutually acceptable compensation.
3.
If no satisfactory compensation has been agreed within
30 days of the date of a request made under Paragraph 2,
the Complaining Party may at any time thereafter notify the
Responding Party and the other Parties that it intends tosuspend the application to the Responding Party ofconcessions or other obligations equivalent to the level ofnullification and impairment, and shall have the right to begin227

suspending concessions or other obligations 30 days after
the date of receipt of the notification.
4.
The right to suspend concessions or other obligations
arising under Paragraph 3 shall not be exercised where:(a)a review is being undertaken pursuant toParagraph 8; or(b)a mutually agreed solution has been reached.

5.
A notification made under Paragraph 3 shall specify thelevel of concessions or other obligations that theComplaining Party proposes to suspend, and the relevant
Chapter and sector(s) which the concessions or otherobligations are related to.
6.
In considering what concessions or other obligations tosuspend, the Complaining Party shall apply the following
principles:(a)the Complaining Party should first seek tosuspend concessions or other obligations in thesame sector or sectors as that affected by themeasure; and(b)

the Complaining Party may suspend concessions
or other obligations in other sectors it if considers
that it is not practicable or effective to suspend
concessions or other obligations in the same
sector.

7.
The level of suspending concessions or otherobligations shall be equivalent to the level of nullification andimpairment.
8.
Within 30 days from the date of receipt of a notification
made under Paragraph 3, if the Responding Party objects tothe level of suspension proposed or considers that the228principles set forth in Paragraph 6 have not been followed,
the Responding Party may request the arbitral tribunal to reconvene to make findings on the matter. The arbitral tribunal
shall provide its assessment to the Parties to the disputewithin 30 days of the date it re-convenes. Where an arbitral
tribunal is requested to re-convene pursuant to thisParagraph, it shall re-convene within 15 days of the date of
the request, unless Article 11.12 (Establishment and Reconvening of Arbitral Tribunals) applies.
9.
The suspension of concessions or other obligations
shall be temporary and shall only be applied until such timeas the obligation in Article 15.1 (Implementation) has been
complied with or a mutually satisfactory solution is reached.
10. Where the right to suspend concessions or otherobligations has been exercised under this Article, if the
Responding Party considers that:(a)the level of concessions or other obligations
suspended by the Complaining Party is not
equivalent to the level of the nullification andimpairment; or(b)it has complied with the obligation in Article 15.1
(Implementation),

it may request the arbitral tribunal to re-convene to examine
the matter.4
11. Where the arbitral tribunal re-convenes pursuant toParagraph 10(a), Paragraph 8 shall apply. Where the arbitral
tribunal re-convenes pursuant to Paragraph 10(b), Article
16.3 to 16.5 (Compliance Review) shall apply.

4
Where a Compliance Review Tribunal determines that measures taken to comply
are inconsistent with this Agreement, it may also, on request, assess whether thelevel of any existing suspension of concessions is still appropriate and, if not, assess
an appropriate level.

229

SECTION E
Final Provisions
Article 18
Special and Differential Treatment Involving Newer
ASEAN Member States
1.
At all stages of the determination of the causes of adispute and of dispute settlement procedures involving
newer ASEAN Member States, particular sympathetic
consideration shall be given to the special situation of newer
ASEAN Member States. In this regard, Parties shall exercise
due restraint in raising matters under these procedures
involving a least-developed country Party. If nullification or
impairment is found to result from a measure taken by aleast-developed country Party, a Complaining Party shall
exercise due restraint regarding matters covered under
Article 17 (Compensation and Suspension of Concessions orother Obligations) or other obligations pursuant to theseprocedures.
2.
Where one or more of the Parties to a dispute is anewer ASEAN Member State, the arbitral tribunal's reports
shall explicitly indicate the form in which account has beentaken of relevant provisions on special and differential
treatment for a newer ASEAN Member State that form part ofthis Agreement which have been raised by the newer
ASEAN Member State in the course of the disputesettlement procedures.
Article 19
Expenses1.
Unless the Parties to the dispute otherwise agree, eachParty to a dispute shall bear the costs of its appointed
arbitrator and its own expenses and legal costs.

230

2.
Unless the Parties to the dispute otherwise agree, thecosts of the chair of the arbitral tribunal and other expenses
associated with the conduct of its proceedings shall be bornein equal parts by the Parties to the dispute.
Article 20
Contact Points
1.
Each Party shall designate a contact point for this
Chapter and shall notify the other Parties of the details of thiscontact point within 30 days of the entry into force of thisAgreement. Each Party shall notify the other Parties of any
change to its contact point.
2.
Any request, written submission or other document
relating to any proceedings pursuant to this Chapter shall bedelivered to the relevant Party or Parties through theirdesignated contact points who shall provide confirmation ofreceipt of such documents in writing.
Article 21
Language1.
All proceedings pursuant to this Chapter shall be
conducted in the English language.
2.
Any document submitted for use in any proceedings
pursuant to this Chapter shall be in the English language. If
any original document is not in the English language, a Party
submitting it for use in the proceedings shall provide an
English language translation of that document.

231

ANNEX ON RULES OF PROCEDURE FOR ARBITRALTRIBUNAL PROCEEDINGS
1.
Any reference made in these Rules to an Article is areference to the appropriate Article in Chapter 17(Consultations and Dispute Settlement).
Timetable
2.
After consulting the Parties to the dispute, an arbitral
tribunal shall, as soon as practicable and whenever possible
within 15 days after the establishment of the arbitral tribunal,
fix the timetable for the arbitral tribunal process. The arbitral
tribunal process, from the date of establishment until the dateof the final report shall, as a general rule, not exceed theperiod of nine months, unless the Parties to the disputeagree otherwise.
3.
In determining the timetable for the arbitral tribunal
process, the arbitral tribunal shall provide sufficient time for
the Parties to the dispute to prepare their respective
submissions. The arbitral tribunal shall set precise deadlines
for written submissions by the Parties to the dispute and theyshall respect those deadlines. The interim report shall be
provided at least four weeks before the deadline forcompletion of the final report.
4.
The arbitral tribunal shall present to the Parties to thedispute its final report within 180 days from the date of its
establishment. In cases of urgency, including those relating
to perishable goods, the arbitral tribunal shall aim to present
its report to the Parties to the dispute within 90 days from thedate of its establishment. When the arbitral tribunal considers
that it cannot present its final report within 180 days or within
90 days in cases of urgency, it shall inform the Parties to thedispute in writing of the reasons for the delay together withan estimate of the period within which it will present its report.

232

5.
Any time period applicable to the arbitral tribunal
proceeding shall be suspended for a period that begins on
the date on which any member of the arbitral tribunal resigns
or becomes unable to act and ends on the date on which thesuccessor member is appointed.
6.
Unless otherwise agreed by the Parties to the dispute,an arbitral tribunal may, in consultation with the Parties to thedispute, modify any time period applicable in the arbitral
tribunal proceeding and make such other procedural oradministrative adjustments as may be required in theproceeding.
Operation of Arbitral Tribunals
7.
The chair of the arbitral tribunal shall preside at all of its
meetings. An arbitral tribunal may delegate to the chairauthority to make administrative and procedural decisions.
8.
Except as otherwise provided in this Annex, the arbitral
tribunal may conduct its business by any means, including bytelephone, facsimile transmission and any other means ofelectronic communication.
9.
Only members of the arbitral tribunal may take part in
the deliberations of the arbitral tribunal.
10. The arbitral tribunal may, in consultation with theParties to the dispute, retain such number of assistants,
interpreters or translators, or designated note takers as may
be required for the proceeding and permit them to be present
during its deliberations. Any such arrangements establishedby the arbitral tribunal may be modified by the agreement of
the Parties to the dispute.
11. The arbitral tribunal’s deliberations shall be confidential.
The members of the arbitral tribunal and the persons
retained by the arbitral tribunal shall maintain the233confidentiality
deliberations.

ofarbitraltribunal

proceedings

and

12. There shall be no ex parte communications with thearbitral tribunal concerning matters under consideration by it.
13. The interests of Third Parties and those of otherParties shall be fully taken into account during the arbitral
tribunal proceedings.
Written Submissions and Other Documents
14. Each Party to the dispute shall transmit to the arbitral
tribunal a first submission in writing setting out the facts of its
case and its arguments. Unless the Parties agree otherwise,a Complaining Party shall deliver its first submission to thearbitral tribunal and to the Responding Party within 14 days
after the date of the establishment of the arbitral tribunal. The
Responding Party shall deliver its first submission to thearbitral tribunal and to the Complaining Party within 21 days
after the date of receipt of the first submission of theComplaining Party. Any subsequent written submissions
shall be submitted simultaneously.
15. A Party to the dispute shall deliver no less than four
copies of its written submissions to the arbitral tribunal andone copy to the other Parties to the dispute. Third Parties
shall receive the submissions of the Parties to the dispute to
the first substantive hearing.
16. In respect of any request, notice or other document(s)related to the arbitral tribunal proceeding that is not coveredby Rules 14 and 15, each Party to the dispute may deliver a
copy of the document(s) to the other Party to the dispute byfacsimile, email or other means of electronic transmission.
17. A Party to the dispute may at any time correct minor
errors of a clerical nature in any request, notice, written
submission or other document(s) related to the arbitral234

tribunal proceeding by delivering a new document clearly
indicating the changes.
Hearings
18. At the first substantive hearing with the Parties to thedispute, each Party to the dispute shall present the facts of
its case and its arguments. The Complaining Party shallpresent its position first. The Parties to the dispute shall begiven an opportunity for final statements, with theComplaining Party presenting its statement first.
19. All Third Parties shall be invited to present their views
during a separate session of the first substantive hearing of
the arbitral tribunal set aside for that purpose. All Third
Parties may be present during the entirety of this session.
20. The Parties to the dispute and Third Parties shall makeavailable to the arbitral tribunal written versions of their oral
statements and responses to questions made in hearings
with the arbitral tribunal.
Availability of Information
21. Written submissions to the arbitral tribunal shall betreated as confidential, but shall be made available to theParties to the dispute. No Party to the dispute shall beprecluded from disclosing statements of its own positions to
the public provided that there is no disclosure of information
which has been designated as confidential by a Party to thedispute or Third Party. The Parties to the dispute, Third
Parties and the arbitral tribunal shall treat as confidential
information submitted by a Party to the dispute to the arbitral
tribunal which that Party has designated as confidential. A
Party to the dispute shall, upon request of another Party,
provide a non-confidential summary of the information
contained in its written submissions that could be disclosed
to the public.

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Information Gathering
22. The Parties to the dispute and Third Parties shall
respond promptly and fully to any request by an arbitral
tribunal for such information as the arbitral tribunal considers
necessary and appropriate.
23. An arbitral tribunal may seek information and technicaladvice from any individual or body which it deems
appropriate. However, before doing so the arbitral tribunal
shall seek the views of the Parties to the dispute. Where theParties to the dispute agree that the arbitral tribunal should
not seek the additional information or technical advice, thearbitral tribunal shall not proceed. The arbitral tribunal shallprovide the Parties to the dispute with any information or
technical advice it receives and an opportunity to provide
comments.
Reports
24. The arbitral tribunal shall provide to the Parties to thedispute an interim report, meeting the requirements specified
in Article 12.3 (Functions of Arbitral Tribunals).
25. The interim report shall be provided at least four weeks
before the deadline for completion of the final report. The
arbitral tribunal shall accord adequate opportunity to theParties to the dispute to review the entirety of its interim
report prior to its finalisation and shall include a discussion of
any comments made by the Parties to the dispute in its final
report.
26. The interim report and final report of the arbitral tribunal
shall be drafted without the presence of the Parties to thedispute. Opinions expressed in the reports of the arbitral
tribunal by its individual members shall be anonymous.

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Venue27. The venue for the arbitral tribunal hearings shall bedecided by mutual agreement between the Parties to thedispute. If there is no agreement, the venue shall alternate
between the capitals of the Parties to the dispute with thefirst hearing to be held in the capital of the Responding Party.
Remuneration and Payment of Expenses
28. The arbitral tribunal shall keep a record and render a
final account of all general expenses incurred in connection
with the proceedings, including those paid to its assistants,
designated note takers or other individuals that it retains
pursuant to Rule 10.

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ANNEX ON OPTIONAL PROCEDURES FOR COMPOSING
ARBITRAL TRIBUNALSAs provided in Article 11.3 (Establishment and Re-conveningof Arbitral Tribunals), the Parties to the dispute may agree to
use any of the following optional procedures, or variations
thereof, for the purpose of composing an arbitral tribunal.
Optional Procedure A
1.
The Complaining Party and the Responding Party shalleach appoint one arbitrator within (period to be agreed by theParties to the dispute) of the date of the receipt of a request
to establish an arbitral tribunal. If either Party fails to appoint
an arbitrator within such period, then the arbitrator appointed
by the other Party shall act as the sole arbitrator of thearbitral tribunal.
2.
Where two arbitrators are appointed in accordance with
Paragraph 1, the Parties to the dispute shall designate bycommon agreement the third arbitrator who shall chair thearbitral tribunal. If the Parties to the dispute have notdesignated the chair of the arbitral tribunal within (period tobe agreed by the Parties to the dispute) of the appointmentof the second arbitrator, the two arbitrators appointed inaccordance with Paragraph 1 shall designate by common
agreement the third arbitrator who shall chair the tribunal. If
the chair of the arbitral tribunal has not been designated by
the arbitrators within (period to be agreed by the Parties tothe dispute) of the appointment of the second arbitrator, theDirector-General of the WTO shall, at the request of any
Party to the dispute, appoint the chair of the arbitral tribunal
within (period to be agreed by the Parties to the dispute) ofthat request.

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Optional Procedure B
1.
The Complaining Party and the Responding Party shalleach appoint one arbitrator within (period to be agreed by theParties to the dispute) of the date of the receipt of a request
to establish an arbitral tribunal.
2.
The Parties to the dispute shall agree on theappointment of the third arbitrator within (period to be agreed
by the Parties to the dispute) of the appointment of the third
arbitrator who shall serve as chair of the arbitral tribunal. If all
three appointments have not been made within (period to beagreed by the Parties to the dispute), the necessary
appointments shall be made at the request of any Party to
the dispute by the Director-General of the WTO within afurther (period to be agreed by the Parties to the dispute).
Optional Procedure C
1.
Within (period to be agreed by the Parties to thedispute) of the date of the receipt of a request to establish anarbitral tribunal, each Party to the dispute shall provide to theother Parties to the dispute a list of up to (number to beagreed by the Parties to the dispute) nominees forappointment as arbitrators, including at least two individuals
suitable for appointment as chair. The Parties to the disputeshall then consult with each other on the composition of thearbitral tribunal with the objective of appointing the arbitrators
drawing as appropriate on the lists of nominees.
2.
If all of the arbitrators have not been appointed within(period to be agreed by the Parties to the dispute) of therequest to establish an arbitral tribunal, any of the remaining
arbitrators shall be appointed at the request of any Party to
the dispute by random drawing from the lists of nominees
separated for this purpose into separate lists of nominations
for appointment as chair or as a regular arbitrator.

239

CHAPTER 18
FINAL PROVISIONS
Article 1
Annexes, Appendices and Footnotes
The Annexes, Appendices and footnotes to this Agreement
shall constitute an integral part of this Agreement.
Article 2
Relation to Other Agreements
1.
Each Party reaffirms its rights and obligations under
the WTO Agreement and other agreements to which theParties are party.
2.
Nothing in this Agreement shall be construed toderogate from any right or obligation of a Party under the
WTO Agreement and other agreements to which the Parties
are party.
3.
In the event of any inconsistency between thisAgreement and any other agreement to which two or more
Parties are party, such Parties shall immediately consult witha view to finding a mutually satisfactory solution.
4.
Nothing in this Agreement shall prevent any individual
ASEAN Member State from entering into any agreement withany one or more ASEAN Member State and/or Australia
and/or New Zealand relating to trade in goods, trade inservices, investment, and/or other areas of economic cooperation.
5.
The provisions of this Agreement shall not apply to any
agreement among ASEAN Member States. The provisions of
this Agreement shall also not apply to any agreement
involving any ASEAN Member State and/or Australia and/or
240

New Zealand unless otherwise agreed by the parties to thatagreement.1
Article 3
Amended or Successor International Agreements
If any international agreement, or a provision therein,referred to in this Agreement (or incorporated into thisAgreement) is amended, the Parties shall consult on whether
it is necessary to amend this Agreement, unless thisAgreement provides otherwise.
Article 4
Disclosure of Information
Unless otherwise provided in this Agreement, nothing in thisAgreement 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 ofparticular enterprises, public or private.
Article 5
Confidentiality
Unless otherwise provided in this Agreement, where a Party
provides information to another Party in accordance with thisAgreement and designates the information as confidential,
the other Party shall maintain the confidentiality of theinformation. Such information shall be used only for the
purposes specified, and shall not be otherwise disclosed
without the specific permission of the Party providing theinformation, except to the extent that the Party receiving theinformation is required under its domestic law to provide theinformation to judicial proceedings.

1

This Paragraph does not apply to any future agreement concluded in accordancewith this Agreement.

241

Article 6
Amendments
This Agreement may be amended by agreement in writing by
the Parties and such amendments shall come into force onsuch date or dates as may be agreed among them.
Article 7
Entry into Force
1.
Each Party shall notify each other Party in writing uponcompletion of its internal requirements2 necessary for entry
into force of this Agreement. This Agreement shall enter into
force on 1 July 2009 for any Party that has made such
notifications provided that Australia, New Zealand and at
least four ASEAN Member States have made such
notifications by that date.
2.
If this Agreement does not enter into force on 1 July2009 it shall enter into force, for any Party that has made thenotification referred to in Paragraph 1, 60 days after the dateby which Australia, New Zealand and at least four ASEAN
Member States have made the notifications referred to in
Paragraph 1.
3.
After the entry into force of this Agreement pursuant toParagraph 1 or 2, this Agreement shall enter into force for
any Party 60 days after the date of its notification referred toin Paragraph 1.
Article 8
Withdrawal and Termination
1.
Any Party may withdraw from this Agreement by giving
six months advance notice in writing to the other Parties.
2

For greater certainty, the term “internal requirements” may include obtaining
governmental approval or parliamentary approval in accordance with domestic law.

242

2.
This Agreement
Paragraph 1:

shall

terminateif,

pursuantto(a)Australia withdraws;(b)

New Zealand withdraws; or(c)this Agreement is in force for less than fourASEAN Member States.
Article 9
Review

The Parties shall undertake a general review of thisAgreement with a view to furthering its objectives in 2016,
and every five years thereafter, unless otherwise agreed by
the Parties.

SIGNED at Cha-am, Phetchaburi, Thailand, this 27th day of
February, two thousand and nine, in three copies in the
English language.

For the Government ofBrunei Darussalam:

For the Government ofAustralia:

243For the Government of
the Kingdom of Cambodia:

For the Government of
New Zealand:

For the Government of
the Republic of Indonesia:

For the Government of
the Lao People’s Democratic Republic:

For the Government of
Malaysia:

For the Government of
the Union of Myanmar:

For the Government of
the Republic of the Philippines:

244For the Government of
the Republic of Singapore:

For the Government of
the Kingdom of Thailand:

For the Government of
the Socialist Republic of Viet Nam:

245