THAILAND-AUSTRALIA
FREE TRADE AGREEMENT
PART
II
TRANSITIONAL SAFEGUARD MEASURES
ARTICLE 502
Application
of a Safeguard Measure
If, as a result of the reduction or elimination of a customs duty pursuant
to this Agreement, an originating good of a Party is being imported into
the other Party's territory in such increased quantities, in absolute
terms or relative to domestic production, and under such conditions as
to cause serious damage, or actual threat thereof, to a domestic industry
producing a like or directly competitive good, the other Party may, to
the minimum extent necessary to prevent or remedy serious damage and facilitate
adjustment, apply a safeguard measure, consisting of:
(a) the suspension of the further reduction of any rate of customs duty
provided for under this Agreement on the good; or
(b) an increase of the rate of customs duty on the good to a level not
to exceed the lesser of
(i) the most-favoured-nation (MFN) applied rate of customs duty in effect
at the time the action is taken, or
(ii) the MFN applied rate of customs duty in effect on the day immediately
preceding the date of entry into force of this Agreement.
ARTICLE
503
Scope and Duration of Transitional Safeguard Measures
1.
A Party shall apply a safeguard measure only for such period of time as
may be necessary to prevent or remedy serious damage and to facilitate
adjustment. A Party may apply a safeguard measure for an initial period
of no longer than two years. The period of a safeguard measure may be
extended by up to two years provided that the conditions of this Chapter
are met. The total period of a safeguard measure, including any extensions
thereof, shall not exceed six years. Regardless of its duration or whether
it has been subject to extension, a safeguard measure on a good shall
terminate within two years following the end of the transition period
for such good. No new safeguard measure may be applied to a good after
that date.
2. In order to facilitate adjustment in a situation where the proposed
duration of a safeguard measure is over one year, the Party applying the
measure shall progressively liberalise it at regular intervals during
the application of the measure, including at the time of any extension.
3. A Party shall not apply a safeguard or provisional measure more than
once on the same good until a period of time has elapsed following the
termination of the earlier safeguard or provisional measure equal to the
duration of the earlier measure.
4. A Party may not apply a safeguard or provisional measure on a good
that is subject to a measure that the Party has applied pursuant to Article
XIX of GATT 1994 and the WTO Safeguards Agreement, the WTO Agreement on
Textiles and Clothing, or any other relevant provisions in the WTO Agreement,
nor may a Party continue to maintain a safeguard 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 WTO Safeguards Agreement, the WTO
Agreement on Textiles and Clothing or any other relevant provisions in
the WTO Agreement.
5. On the termination of a safeguard measure, the Party that applied the
measure shall apply the rate of customs duty set out in its Tariff Schedule
as specified in Annex 2 on the date of termination as if the safeguard
measure had never been applied.
ARTICLE
504
Investigation
1.
A Party may apply or extend a safeguard measure only following an investigation by the Party's competent authorities to examine the effect of increased
imports of an originating good of the other Party on the domestic industry,
as reflected in changes in such relevant economic variables as production,
productivity, levels of sales, utilisation of capacity, inventories, market
share, exports, wages, employment, domestic prices, profits and investment,
none of which is necessarily decisive. When factors other than increased
imports of an originating good of the other Party resulting from the reduction
or elimination of a customs duty pursuant to this Agreement are simultaneously
causing damage to the domestic industry, such damage shall not be attributed
to such increased imports.
2. An investigation under Paragraph 1 shall only take place pursuant to procedures previously
established and made public in consonance with Chapter 14 of this Agreement.
The investigation shall include reasonable public notice to all interested parties and public
hearings or other appropriate means in which importers, exporters and
other interested parties could present evidence and their views, including
the opportunity to respond to the presentations of other parties and to
submit their views, inter alia, as to whether or not the application of
a safeguard measure would be in the public interest. Upon completion of
an investigation,
the competent authorities shall promptly publish a report setting forth
their findings and reasoned conclusions reached on all pertinent issues
of fact and law.
3. Any information which is by nature confidential or which is provided
on a confidential basis shall, upon cause being shown, be treated as such
by the competent authorities. Such information shall not be disclosed
without permission of the party submitting it. Parties providing confidential
information may be requested to furnish non-confidential summaries thereof
or, if such parties indicate that such information cannot be summarised,
the reasons why a summary cannot be provided. However, if the competent
authorities find that a request for confidentiality is not warranted and
if the party concerned is either unwilling to make the information public
or to authorise its disclosure in generalised or summary form, the authorities
may disregard such information unless it can be demonstrated to their
satisfaction from appropriate sources that the information is correct.
ARTICLE
505
Provisional Measures
1.
In highly unusual and critical circumstances where delay would cause damage
which would be difficult to repair, a Party may apply a provisional safeguard
measure pursuant to a preliminary determination that there is clear evidence
that increased imports of an originating good of the other Party as a
result of the reduction or elimination of a duty pursuant to this Agreement
have caused or are threatening to cause serious damage. The duration of
such a provisional measure shall not exceed 200 days, during which period
the pertinent requirements of Articles 502, 503 and 504 shall be met.
The duration of any such provisional measure shall be counted as part
of the total period referred to in Article 503 (1). Any additional customs
duties collected as a result of such a provisional measure shall be promptly
refunded if the subsequent investigation referred to in Paragraph 1 of Article 504 does not determine that increased
imports of an originating good of the other Party have caused or threatened
to cause serious damage to a domestic industry. In such a case, the Party
that applied the measure shall apply the rate of customs duty set out
in its Tariff Schedule as specified in Annex 2 as if the provisional measure
had never applied.
2. In determining whether such highly unusual and critical circumstances
exist, a Party shall have regard to the rate of increase of imports of
an originating good of the other Party, both in absolute and relative
terms, and the overall level of the Party's imports of the good from the
other Party as a share of total imports of the good, as a result of the
reduction or elimination of a duty on the good pursuant to this Agreement.
ARTICLE
506
Notification and Consultation
1.
A Party shall promptly notify the other Party, in writing, on:
(a) initiating an investigation under Article 504;
(b) making a finding of serious damage or actual threat thereof caused
by increased imports of an originating good of the other Party as a result
of the reduction or elimination of a customs duty on the good pursuant
to this Agreement;
(c) taking a decision to apply or extend a safeguard measure, or to apply
a provisional measure; and
(d) taking a decision to modify a safeguard measure previously applied.
2. A Party shall provide to the other Party a copy of the public version
of the report of its competent authorities required under Article 504
immediately as it is available.
3. In making a notification pursuant to Paragraph 1, the Party applying
or extending a safeguard measure shall also provide evidence of serious
damage or actual threat thereof caused by increased imports of an originating
good of the other Party as a result of the reduction or elimination of
a customs duty pursuant to this Agreement, a precise description of the
good involved, the details of the proposed measure including as appropriate
the grounds for not selecting the measure described in Article 502 (a)
, the date of introduction, duration, and timetable for progressive liberalisation
of the measure, if applicable. In the case of an extension of a measure,
evidence that the domestic industry concerned is adjusting shall also
be provided. Upon request, the Party applying or extending a safeguard
measure shall provide additional information as the other Party may consider
necessary.
4. A Party proposing to apply or extend a safeguard measure shall provide
adequate opportunity for prior consultations with the other Party, with
a view to, inter alia, reviewing the information provided under Paragraph
3, exchanging views on the measure, and reaching an agreement on compensation
as set forth in Article 507 (1).
5. Where a Party applies a provisional measure referred to in Article
505, on request of the other Party, consultations shall be initiated immediately
after such application.
6. The provisions on notification in this Chapter shall not require a
Party to disclose confidential information the disclosure of which would
impede law enforcement or otherwise be contrary to the public interest
or would prejudice the legitimate commercial interests of particular enterprises,
public or private.
ARTICLE
507
Compensation
1.
A Party extending a safeguard measure for an overall period beyond three
years shall, in consultation with the other Party, provide to the other
Party mutually agreed trade liberalising compensation in the form of substantially
equivalent concessions during the period of extension of the measure beyond
the aforementioned three years. Such consultations shall begin within
30 days of the decision to extend the measure and, in accordance with
Article 506 (4), shall take place prior to the extension.
2. If the Parties are unable to reach agreement on compensation within
30 days after the consultations commence, the exporting Party shall be
free to suspend the application of substantially equivalent concessions
to the trade of the Party extending the safeguard measure.
3. A Party shall notify the other Party in writing at least 30 days before
suspending concessions under Paragraph 2.
4. The obligation to provide compensation under Paragraph 1 and the right
to suspend substantially equivalent concessions under Paragraph 2 shall
terminate on the date of the termination of the safeguard measure.
ARTICLE
508
Global safeguards
1.
Each Party retains its rights and obligations under Article XIX of GATT
1994 and the WTO Agreement on Safeguards and any other relevant provisions
in the WTO Agreement. This Agreement does not confer any additional rights
or obligations on the Parties with regard to such global safeguard measures,
except that a Party taking such a measure may exclude imports of an originating
good of the other Party from the action if such imports are not a cause
of serious injury or threat thereof or of serious damage or actual threat
thereof or of any other such factor as may be provided in Article XIX
of GATT 1994 and the WTO Agreement on Safeguards, and any other relevant
provisions in the WTO Agreement.
2. A Party considering the imposition of a global safeguard measure on
an originating good of the other Party shall initiate consultations with
that Party as far in advance of taking any such measure as practicable.
PART III
SPECIAL SAFEGUARD MEASURES FOR CERTAIN SENSITIVE AGRICULTURAL PRODUCTS
ARTICLE
509
Standards for a Special Safeguard Measure
1.
A Party may, in exceptional circumstances, apply a special safeguard measure
to a limited number of specified sensitive agricultural goods, as set
down in Annex 5.
2. The Parties shall endeavour to apply special safeguards measures in
a manner that is consistent with their commitment under the terms of this
Agreement to promote the expansion of bilateral trade in agricultural
goods.
3. A Party may impose a special safeguard measure on a good only during
the period set down in Annex 5 for that good.
4. Such a special safeguard measure may be applied to imports of an agricultural
good listed in Annex 5 if the volume of imports of that originating good
of the other Party entering the customs territory of the Party during
any given calendar year exceeds the specified volume trigger level for
that year. The applicable trigger levels are set out in Annex 5.
5. If the conditions in Paragraph 4 are met, a Party may increase the
rate of customs duty applicable to the good for the remainder of that
calendar year through the application of the customs duty for such good
at the current MFN rate or the base rate, whichever is lower.
6. Any supplies of the good in question which were en route on the basis
of a contract settled before the additional customs duty is imposed under
the terms of this Article shall be exempted from any such additional customs
duty, provided that they may be counted in the volume of imports of the
good in question during the following year for the purposes of triggering
the provisions of Paragraph 4 in that year.
7. Each Party shall apply any special safeguard measure in a transparent
manner. A Party applying a special safeguard measure shall give notice
in writing, including relevant data, to the other Party as far in advance
as may be practicable and in any event within ten working days of the
implementation of such action.
8. Upon request, the Party imposing the measure shall consult and cooperate
in exchanging information as appropriate with the other Party with respect
to the conditions of application of the measure.
9. A Party may not apply a special safeguard measure on a good that is
subject to a measure that the Party has applied pursuant to Article XIX
of GATT 1994 and the WTO Safeguards Agreement or any other relevant provisions
in the WTO Agreement or to a measure set forth in Articles 502-508, nor
may a Party continue to maintain a special safeguard measure on a good
that becomes subject to a measure that the Party applies pursuant to Article
XIX of GATT 1994 and the WTO Safeguards Agreement or any other relevant
provisions in the WTO Agreement, or to any measure set forth in Articles
502-508.
10. No later than three years following the entry into force of this Agreement,
the Parties shall review the operation of this Article, including the
appropriateness of the list and trigger levels, including the growth factors
set down in Annex 5. The review shall take into account relevant international
trade developments.
11. In the event that a Party enters into an agreement or arrangement
with a non-Party following entry into force of this Agreement that does
not provide for special safeguard measures on a good or goods covered
in the relevant section of Annex 5 of this Agreement, and where the non-Party
is a substantial supplier of the good or goods, the Parties shall, by
mutual consent, enter into consultations on the scope for that good or
those goods to be withdrawn from Annex 5.
CHAPTER
6
SANITARY AND PHYTOSANITARY MEASURES AND FOOD STANDARDS
ARTICLE 601
Objectives
The
objectives of this Chapter are:
(a) to protect human, animal or plant life or health in the territory
of each Party;
(b) to facilitate safe bilateral trade in food, plants and animals, including
their products, and animal feed;
(c) to strengthen cooperation between Thai and Australian government agencies
having responsibility for matters covered by this Chapter and to deepen
mutual understanding of each Party's regulations and procedures; and
(d) to strengthen collaboration between the Parties in relevant international
bodies implementing agreements or developing international standards,
guidelines and recommendations relevant to the matters covered by this
Chapter.
ARTICLE
602
Definitions
For
the purposes of this Chapter:
(a) "agricultural and food standard" means a mandatory requirement
being either a sanitary or phytosanitary measure or other technical regulation,
that is made pursuant to relevant laws administered by either Party;
(b) "sanitary or phytosanitary measure" (SPS measure) shall
have the same meaning as in Annex A, paragraph 1, of the SPS Agreement;
sanitary or phytosanitary measures include control, inspection and approval
procedures, guidelines for use of which are given in Annex C of the SPS
Agreement;
(c) "technical regulation" means a non-SPS measure which shall
have the same meaning as in Annex 1 of the TBT Agreement; and
(d) "appropriate level of sanitary or phytosanitary protection"
shall have the same meaning as in Annex A of the SPS Agreement.
ARTICLE
603
Scope
1.
This Chapter shall apply to all sanitary and phytosanitary measures of
a Party that may, directly or indirectly, affect trade in agricultural
and food products traded between the Parties, regardless of the origin
of those products.
2. It shall also apply to:
(a) all other agricultural and food standards related to agricultural
and food products traded between the Parties;
(b) assessments of manufacturers or manufacturing processes of agricultural
and food products exported from one Party to the other Party; and
(c) assessments of official control, inspection and approval systems related
to agricultural and food products operated by the Parties.
ARTICLE
604
Obligations
1.
The Parties reaffirm their existing rights and obligations with respect
to each other under the SPS Agreement and the TBT Agreement to the extent
that these rights and obligations are applicable to trade in agricultural
and food products.
2. Nothing in this Chapter shall prevent a Party from adopting or maintaining,
in accordance with its international rights and obligations:
(a) SPS measures necessary to achieve its appropriate level of protection
of human, animal or plant life or health; and
(b) other technical requirements set out in a Party's laws, regulations
and policies as appropriate to its national circumstances.
3. Each Party, consistent with Paragraphs 1 and 2, shall retain all authority
under its laws to implement sanitary and phytosanitary measures and other
standards related to this Chapter. This includes the authority to take
appropriate measures for goods that do not conform to that Party's SPS
measures and such other standards.
Part 6
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