THAILAND-NEW
ZEALAND
FREE TRADE AGREEMENT
Chapter 5: Trade Remedies
Part
I General Trade Remedi
Part II Bilateral
Safeguards
1.
Each Party retains its rights and obligations under the WTO Agreement
on Implementation of Article VI of GATT 1994.
2.
Before either Party applies anti-dumping measures against imports originating
from the other Party, the Party initiating the action will be mindful
of the provisions relating to constructive remedies under Article 15 of
the WTO Agreement on Implementation of Article VI of the GATT 1994.
Article
5.2 Subsidies and Countervailing Measures
Each
Party retains its rights and obligations under the WTO Agreement on Subsidies
and Countervailing Measures.
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.
2.
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.
Part
II Bilateral Safeguards
For
purposes of this Part:
-
(a)
“base rate” means the rate of customs duty for an imported good as
indicated in the Tariff Schedule of the importing Party in Annex 1;
-
(b)
“domestic industry” means, with respect to an imported good, the producers
as a whole of the like or directly competitive good or those producers
whose collective production of the like or directly competitive good
constitutes a major proportion of the total domestic production of
such good;
-
(c)
“preferential tariff rate” means the rate of customs duty for an imported
good pursuant to Article 2.3 of Chapter
2 of this Agreement;
-
(d)
“provisional measure” means a provisional safeguard measure described
in Article 5.8;
-
(e)
“safeguard measure” means a transitiona safeguard measure described
in Article 5.5;
-
(f)
“special safeguard measure” means a special safeguard measure described
in Article 5.11;
-
(g)
“serious injury” means a significant overall impairment in the position
of a domestic industry;
-
(h)“transition
period ”, in relation to a particular good, means the period from
the entry into force of this Agreement until the date on which the
customs duty on that good is to be eliminated in accordance with Annex
1.
Article
5.5 Application of a Transitional 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 or threaten to cause serious injury 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 injury 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 from the date on which the action
to apply the safeguard measure is taken ; or
-
(b)an
increase of the rate of customs duty on the good to a level not to
exceed the lesser of:
-
the
most-favoured-nation (MFN) applied rate of customs duty in effect
on the date on which the action to apply the safeguard measure is
taken ; or
-
the
MFN applied rate of customs duty in effect on the day immediately
preceding the date of entry into force of this Agreement; or
-
for
a new safeguard measure applied from 1 January 2009 or beyond, the
preferential tariff rate in effect under this Agreement on the day
four years preceding the date on which the action to apply the safeguard
measure is taken.
Article
5.6 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 injury 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 one year provided that the conditions of this Chapter
are met and that the safeguard measure continues to be applied to the
minimum extent necessary to prevent or remedy serious injury and that
there is evidence that the industry is adjusting . The total period of
a safeguard measure, including any extensions thereof, shall not exceed
three 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 again on the
same good until three years have elapsed since the date of the termination
of the earlier safeguard or provisional 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 Agreement on Safeguards, 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 Agreement on Safeguards,
the WTO Agreement on Textiles and Clothing, or any other relevant provisions
in the WTO Agreement.
5.
A Party may not apply a safeguard measure to any good indicated by the
letters SSG in its Tariff Schedule set out in Annex 1 nor to any good
listed in Annex 1.3 which is subject to a tariff quota.
6.
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 1 on the date of termination as if the safeguard
measure had never been applied.
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 injury to the domestic industry, such injury 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. An investigation shall be completed expeditiously. 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.
1.
In highly unusual and critical circumstances where delay would cause injury
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 injury . The duration
of such a provisional measure shall not exceed 120 days, during which
period the pertinent requirements of Articles 5.5, 5.6, and 5.7shall be
met. The duration of any such provisional measure shall be counted as
part of the total period referred to in Article 5.6 (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 Article 5.7 (1) does not determine that increased imports
of an originating good of the other Party have caused or threatened to
cause serious injury 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 1 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
5.9 Notification and Consultation
1.
A Party shall promptly notify the other Party, in writing, on:
-
(a)
initiating an investigation under Article 5.7
-
(b
) making a finding of serious injury or 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 progressively liberalise 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 5.7
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 injury
or 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 5.5 (a), the date of
introduction, duration, and timetable for progressive liberalisation of
the measure, if such timetable is 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 5.10 (1).
5.
Where a Party applies a provisional measure referred to in Article 5.8,
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.
1.
A Party extending a safeguard measure for an overall period beyond two
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 two years. Such consultations shall begin within 30
days of the decision to extend the measure and, in accordance with Article
5.9 (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
5.11 Special Agricultural Safeguard Measures
1.
A Party may, in exceptional circumstances, apply a special safeguard measure
to a limited number of specified sensitive agricultural goods as indicated
by the letters SSG in its Tariff Schedule set out in Annex 1.
2.
The Parties shall endeavour to apply special safeguard measures in a manner
that is consistent with their commitments under this Agreement to liberalise
and promote the expansion of trade in these goods between the Parties.
3.
A Party may impose a special safeguard measure on a good only during the
period set out in Annex 3 for that good.
4.
Such a special safeguard measure may be applied to imports of an agricultural
good listed in Annex 3 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 3.
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 customs duty on such good at the current
MFN applied rate or the base rate, whichever is lower.
6.
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.
A Party shall apply any special safeguard measure in a transparent manner.
A Party shall ensure that the current volume of imports is published in
a manner which is readily accessible to traders and the other Party. 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 10 working days of the implementation
of such action. A Party which decides not to apply a special safeguard
measure where the specified trigger volume has been or is about to be
met, shall notify the other Party promptly of its decision.
8.
Upon request of a Party, the Parties shall consult promptly and cooperate
in exchanging information, as appropriate, with respect to the conditions
for applying a special safeguard 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 Agreement on Safeguards, or any other relevant provisions
in the WTO Agreement, or to a measure set forth in Articles 5.5 to 5.10,
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 Agreement on Safeguards, or any
other relevant provisions in the WTO Agreement, or to any measure set
forth in Articles 5.5 to 5.10.
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 of products set out in Annex 3 and the trigger
levels, including the growth factors set out in Annex 3. The review shall
take into account relevant international, regional and bilateral trade
developments.
11.
In the event that a Party enters into an agreement or an arrangement with
a non-Party following the 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 3 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.
Chapter
6: Sanitary and Phytosanitary Measures
The
objectives of this Chapter are to:
(a) uphold and enhance implementation of the SPS Agreement and applicable
international standards, guidelines and recommendations developed by relevant
international organisations;
(b) facilitate trade in all products between the Parties through seeking
to resolve trade access issues, while protecting human, animal or plant
life or health in the territory of the Parties;
(c) provide a means to strengthen cooperation and consultation between
the Parties on bilateral sanitary and phytosanitary matters and on food
standards, including through the development of implementing arrangements
on equivalence and other agreed matters of interest to the Parties; and
(d) 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.
1.
This Chapter shall apply to all sanitary or phytosanitary measures of
a Party that may, directly or indirectly, affect trade between the Parties,
in particular involving agricultural and food products.
2.
This Chapter shall apply to food standards which are SPS measures and
Chapter 7 shall apply to food standards which are not SPS measures.
Notwithstanding the above, Articles 6.5 to 6.10 of this Chapter shall
apply to all food standards.
For
the purposes of this Chapter:
(a)
“appropriate level of sanitary or phytosanitary protection” shall have
the same meaning as in Annex A, paragraph 5 of the SPS Agreement;
(b)
“relevant international organisations” include the Codex Alimentarius
Commission (Codex), the World Organisation for Animal Health (OIE), and
the relevant international and regional organisations operating within
the framework of the International Plant Protection Convention (IPPC);
(c)
“sanitary or phytosanitary measure” (SPS measure) shall have the same
meaning as in Annex A, paragraph 1 of the SPS Agreement;
(d)
“urgent problem of health protection” means a situation where there is
a clearly identified risk of serious health effects on human, animal or
plant life or health arising from the importation of a product or products
into the customs territory of a Party.
1.
The Parties reaffirm their existing rights and obligations with respect
to each other under the SPS Agreement.
2.
Nothing in this Chapter shall prevent a Party from adopting, implementing
or maintaining measures necessary to achieve its appropriate level of
protection for human, animal or plant life or health consistent with its
rights and obligations under the SPS Agreement.
1.
Recognising the importance of close and effective working relationships
between the Parties in giving effect to the objectives of this Chapter,
the Parties shall promote communication to enhance present and future
relationships between their competent authorities.
2.
The competent authorities for matters within the scope of this Chapter
as at the date of entry into force of this Agreement are:
-
(a)
in the case of New Zealand, the Ministry of Agriculture and Forestry
and the New Zealand Food Safety Authority; and
-
(b)
in the case of Thailand, the Ministry of Agriculture and Cooperatives.
3.
The competent authorities shall designate contact points for communication
on all matters arising under this Chapter. Each Party shall notify
the other promptly of any changes to the competent authorities or contact
points. As at the date of entry into force of this Agreement, the
contact point for Thailand shall be the National Bureau of Agricultural
Commodity and Food Standards; and for New Zealand, the contact points
shall be the New Zealand Food Safety Authority and Biosecurity New Zealand.
4. Each
Party shall provide notice to the contact points of the other Party of
new or proposed changes to its SPS measures and food standards, as far
in advance as practicable before the changes come into effect, where these
are likely to affect, directly or indirectly, trade between the Parties.
A
Party may, in response to an urgent problem of health protection which
arises or threatens to arise, take measures necessary for the protection
of human, animal or plant life or health. In such circumstances,
the Party shall provide notice to the contact points of the other Party
of such changes to its SPS measures and food standards within 1 day of
the changes coming into effect, where these are likely to affect, directly
or indirectly, trade between the Parties. The Parties shall consult
expeditiously regarding the situation with a view to minimising disruption
to trade. The Parties shall take due account of any information
provided through such consultations.
The
Parties shall cooperate where there is a notification of non-compliance
of imported consignments for products subject to SPS measures or food
standard requirements, drawing on the guidelines of relevant international
organisations where available. In particular, where such non-compliance
arises, the importing Party shall notify as soon as possible the exporting
Party of the consignment details. Unless specifically required by
its laws, regulations or policies, the importing Party shall avoid suspending
trade based on one shipment, but in the first instance shall contact the
exporting Party to ascertain how the problem has occurred. The Parties
shall consult on what remedial action might be taken by the exporting
Party to ensure that further shipments are not affected.
Article
6.8 Joint SPS Committee
The
Parties shall establish a Joint SPS Committee consisting of representatives
of the Parties. The Joint SPS Committee shall consider any matters
relating to the implementation of this Chapter, and shall:
(a) establish technical working groups, as required;
(b) meet in person within one year of the entry into force of this
Agreement and at least annually thereafter or as mutually agreed by the
Parties. It may meet via teleconference, video conference, or through
any other means, as mutually determined by the Parties. The Committee
may also address issues through correspondence;
(c) initiate, develop and review implementing arrangements on technical
matters including harmonisation, equivalence, control, inspection and
approval procedures which further elaborate the provisions of this Chapter
in order to facilitate trade between the Parties, particularly in agricultural
and food products; and
(d) review and assess progress of each Party's priority market access
interests, and, where agreed as necessary, amend implementing arrangements.
Technical
working groups may consist of expert-level representatives of the Parties
as agreed, and shall identify, address and attempt to resolve technical
and scientific issues arising from this Chapter. In cases where
these issues are not able to be resolved at the level of the established
technical working group, they shall be reported to the Joint SPS Committee
in order to reach a mutually acceptable resolution with the least disruption
to trade.
1.
In the event that a Party considers that an SPS measure or food standard
affecting trade between it and the other Party warrants consultations,
it may, through the contact point, request that consultations be held.
The other Party shall respond promptly to any request for consultations.
2.
The consultations shall be held within 21 days of the request, unless
the Parties determine otherwise, and may be conducted via teleconference,
video conference, or through any other means, as mutually determined by
the Parties.
3. The
purpose of such consultations is to share information and increase mutual
understanding, with a view to resolving any concerns about the specific
SPS measure or food standard that is the subject of the consultations,
consistent with the rights and obligations of the Parties under the WTO
Agreement.
The
Parties shall explore opportunities for further cooperation, collaboration,
and information exchange on SPS matters including technical assistance
at the bilateral, regional and multilateral levels consistent with the
provisions of this Chapter.
Information
exchanged under this Chapter may include non-public information exempt
from public disclosure under the respective laws and regulations of the
Parties. Information that is not appropriate for public dissemination
shall be identified by the relevant Party and is only to be shared according
to the procedures and policies of the Parties as permitted by their respective
laws. Neither Party shall disclose such information without the
consent of the owner of that information.
1.
Matters arising under this Chapter that cannot be settled through consultations
under Article 6.10 of this Chapter may be forwarded by either Party for
consideration by the CEP Joint Commission.
2.
Without prejudice to the rights of the Parties under the WTO Understanding
on Rules and Procedures Governing the Settlement of Disputes, Chapter
17 on Dispute Settlement shall not apply to the provisions of this
Chapter.
Part
4
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