CHAPTER 6

TRADE REMEDIES

Section A: Safeguard Measures

Article 6.1:  Definitions

For the purposes of this Section:

domestic industry means, with respect to an imported good, the producers as a whole of the like or directly competitive good operating within the territory of a Party, or those producers whose collective production of the like or directly competitive good constitutes a major proportion of the total domestic production of that good;

serious  injury  means  a  significant  overall  impairment  in  the  position  of  a domestic industry;

threat of serious injury means serious injury that, on the basis of facts and not merely on allegation, conjecture or remote possibility, is clearly imminent;

transition period means, in relation to a particular good, the three-year period beginning on the date of entry into force of this Agreement, except where the tariff elimination for the good occurs over a longer period of time, in which case the transition period shall be the period of the staged tariff elimination for that good; and

transitional safeguard measure means a measure described in Article 6.3.2 (Imposition of a Transitional Safeguard Measure).

Article 6.2: Global Safeguards

1.         Nothing in this Agreement affects the rights and obligations of the Parties under Article XIX of GATT 1994 and the Safeguards Agreement.

2.         Except as provided in paragraph 3, nothing in this Agreement shall confer any rights or impose any obligations on the Parties with regard to actions taken pursuant to Article XIX of GATT 1994 and the Safeguards Agreement.

3.         A Party that initiates a safeguard investigatory process shall provide to the other Parties an electronic copy of the notification given to the WTO Committee on Safeguards under Article 12.1(a) of the Safeguards Agreement.

4.         No Party shall apply or maintain a safeguard measure under this Chapter, to any product imported under a tariff rate quota (TRQ) established by the Party under this Agreement.  A Party taking a safeguard measure under Article XIX of GATT 1994  and  the Safeguards Agreement  may exclude from  the safeguard measure imports of originating goods under a TRQ established by the Party under this Agreement and set out in Appendix A to the Party’s Schedule to Annex 2-D (Tariff Commitments), if such imports are not a cause of serious injury or threat thereof.

5.         No Party shall apply or maintain two or more of the following measures, with respect to the same good, at the same time:

 (a)       a transitional safeguard measure under this Chapter;

 (b)       a safeguard measure under Article XIX of GATT 1994 and the

Safeguards Agreement;

 (c)       a safeguard measure set  out  in  Appendix  B to its Schedule to

Annex 2-D (Tariff Commitments); or

 (d)      an  emergency  action  under  Chapter  4  (Textiles  and  Apparel

Goods).

Article 6.3: Imposition of a Transitional Safeguard Measure

1.         A Party may apply a transitional safeguard measure described in paragraph

2, during the transition period only, if as a result of the reduction or elimination of a customs duty pursuant to this Agreement:

 (a)       an  originating  good  of  another  Party,  individually,  is  being imported into the 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 the domestic  industry  that  produces  a  like  or  directly  competitive good; or

 (b)       an originating good of two or more Parties, collectively, is being imported into the 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 the domestic industry that produces a like or directly competitive good, provided that the Party applying the transitional safeguard measure demonstrates, with respect to the imports from each such Party against which the transitional safeguard measure is applied, that imports of the originating good from each of those Parties have increased, in absolute terms or relative to domestic production,

since  the  date  of  entry  into  force  of  this  Agreement  for  those

Parties.

2.         If the conditions in paragraph 1 are met, the Party may, to the extent necessary to prevent or remedy serious injury and to facilitate adjustment:

 (a)       suspend the further reduction of any rate of customs duty provided for under this Agreement on the good; or

 (b)      increase the rate of customs duty on the good to a level not to exceed the lesser of:

 (i)        the most-favoured-nation applied rate of customs duty in effect at the time the measure is applied; and

 (ii)       the most-favoured-nation applied rate of customs duty in effect on the day immediately preceding the date of entry into force of this Agreement for that Party.

The Parties understand that neither tariff rate quotas nor quantitative restrictions would be a permissible form of transitional safeguard measure.

Article 6.4: Standards for a Transitional Safeguard Measure

1.         A Party shall maintain  a transitional safeguard measure only for  such period of time as may be necessary to prevent or remedy serious injury and to facilitate adjustment.

2.         That period shall not exceed two years, except that the period may be extended by up to one year if the competent authority of the Party that applies the measure determines, in conformity with the procedures set out in Article  6.5 (Investigation Procedures and Transparency Requirements), that the transitional safeguard measure continues to be necessary to prevent or remedy serious injury and to facilitate adjustment.

3.         No  Party  shall  maintain  a  transitional  safeguard  measure  beyond  the expiration of the transition period.

4.         In order to facilitate adjustment in a situation where the expected duration of a transitional safeguard measure is over one year, the Party that applies the measure shall progressively liberalise it at regular intervals during the period of application.

5.         On the termination of a transitional safeguard measure, the Party that applied the measure shall apply the rate of customs duty set out in the Party’s

Schedule to Annex 2-D (Tariff Commitments) as if that Party had never applied the transitional safeguard measure.

6.         No Party shall apply a transitional safeguard measure more than once on the same good.

Article 6.5:  Investigation Procedures and Transparency Requirements

1.         A Party shall apply a transitional safeguard measure only following an investigation by the Party’s competent authorities in accordance with Article 3 and Article 4.2(c) of the Safeguards Agreement; to this end, Article 3 and Article

4.2(c) of the Safeguards Agreement are incorporated into and made part of this

Agreement, mutatis mutandis.

2.         In the investigation described in paragraph 1, the Party shall comply with the requirements of Article 4.2(a) and Article 4.2(b) of the Safeguards Agreement; to this end, Article 4.2(a) and Article 4.2(b) of the Safeguards Agreement are incorporated into and made part of this Agreement, mutatis mutandis.

Article 6.6: Notification and Consultation

1.         A Party shall promptly notify the other Parties, in writing, if it:

(a)       initiates a transitional safeguard investigation under this Chapter; (b)       makes  a  finding  of  serious  injury,  or  threat  of  serious  injury,

caused by increased imports, as set out in Article 6.3 (Imposition of a Transitional Safeguard Measure);

 (c)       takes  a  decision  to  apply  or  extend  a  transitional  safeguard measure; and

 (d)      takes  a  decision  to  modify  a  transitional  safeguard  measure previously undertaken.

2.         A Party shall provide to the other Parties a copy of the public version of the report of its competent authorities that is required under Article 6.5.1 (Investigation Procedures and Transparency Requirements).

3.         When a Party makes a notification pursuant to paragraph 1(c) that it is applying or extending a transitional safeguard measure, that Party shall include in that notification:

 (a)       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 this Agreement;

 (b)      a  precise  description  of  the  originating  good  subject  to  the transitional safeguard measure including its heading or subheading under the HS Code, on which the schedules of tariff commitments in Annex 2-D (Tariff Commitments) are based;

 (c)       a precise description of the transitional safeguard measure;

 (d)      the date of the transitional safeguard measure’s introduction, its expected duration and, if applicable, a timetable for progressive liberalisation of the measure; and

 (e)       in the case of an extension of the transitional safeguard measure, evidence that the domestic industry concerned is adjusting.

4.         On request of a Party whose good is subject to a transitional safeguard proceeding under this Chapter, the Party that conducts that proceeding shall enter into consultations with the requesting Party to review a notification under paragraph 1 or any public notice or report that the competent investigating authority issued in connection with the proceeding.

Article 6.7: Compensation

1.         A Party applying a transitional safeguard measure shall, after consultations with each Party against whose good the transitional safeguard measure is applied, provide   mutually   agreed   trade   liberalising   compensation   in   the   form   of concessions that have substantially equivalent trade effects or equivalent to the value of the additional duties expected to result from the transitional safeguard measure.  The Party shall provide an opportunity for those consultations no later than 30 days after the application of the transitional safeguard measure.

2.         If the consultations under paragraph 1 do not result in an agreement on trade liberalising compensation within 30 days, any Party against whose good the transitional safeguard measure is applied may suspend the application of substantially equivalent concessions to the trade of the Party applying the transitional safeguard measure.

3.         A Party against whose good the transitional safeguard measure is applied shall notify the Party applying the transitional safeguard measure in writing at least 30 days before it suspends concessions in accordance with paragraph 2.

4.         The obligation to provide compensation under paragraph 1 and the right to suspend concessions under paragraph 2 terminates on the termination of the transitional safeguard measure.

Section B: Antidumping and Countervailing Duties

Article 6.8: Antidumping and Countervailing Duties

1.         Each Party retains its rights and obligations under Article VI of GATT

1994, the AD Agreement and the SCM Agreement.

2.         Nothing  in  this  Agreement  shall  confer  any  rights  or  impose  any obligations on the Parties with regard to proceedings or measures taken pursuant to Article VI of GATT 1994, the AD Agreement or the SCM Agreement.

3.         No  Party  shall  have  recourse  to  dispute  settlement  under  Chapter  28 (Dispute Settlement) for any matter arising under this Section  or Annex  6-A (Practices Relating to Antidumping and Countervailing Duty Proceedings).

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