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Agreement
Between Japan and the United Mexican States Preamble Japan and the United Mexican States, Conscious of their longstanding friendship and strong economic and political ties that have developed through growing trade and investment and mutually beneficial cooperation between the Parties; Realizing that a dynamic and rapidly changing global environment brought about by globalization and closer integration among economies in the world presents many new economic challenges and opportunities to the Parties; Recognizing that the economies of the Parties are endowed with conditions to complement each other and that this complementarity should contribute to further promoting the economic development in the Parties, by making use of their respective economic strengths through bilateral trade and investment activities; Recognizing that creating a clearly established and secured trade and investment framework through mutually advantageous rules to govern trade and investment between the Parties would enhance the competitiveness of the economies of the Parties, make their markets more efficient and vibrant and ensure predictable commercial environment for further expansion of trade and investment between them; Noting that such a framework would promote the economic relations between the Parties; Recalling Article XXIV of the General Agreement on Tariffs and Trade 1994 and Article V of the General Agreement on Trade in Services in Annex 1A and Annex 1B, respectively, to the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh, April 15, 1994; Realizing that enhancing economic ties between the Parties would contribute to increasing trade and investment flows across the Pacific; Convinced that this Agreement would open a new era for the relationship between the Parties; and Determined to establish a legal framework for strengthening the economic partnership between the Parties; HAVE AGREED as follows: Chapter 1 Article 1 The objectives of this Agreement are to:
Chapter 2 Article 2 1. For the purposes of this Agreement, unless otherwise specified:
2. For the purposes of this Agreement, unless otherwise specified:
Chapter 3 Section 1 Article 3 1. Each Party shall accord national treatment to the goods of the other Party in accordance with Article III of the GATT 1994 and to this end Article III of the GATT 1994 is incorporated into and made part of this Agreement. 2. The provisions of paragraph 1 above regarding national treatment shall mean, with respect to a local government in the case of Japan, and with respect to a state in the case of Mexico, treatment no less favorable than the most favorable treatment accorded by that local government or state to any like goods or, directly competitive or substitutable goods, as the case may be, of the Party of which it forms a part. Article 4 The classification of goods in trade between the Parties shall be in conformity with the Harmonized System. Article 5 1. Except as otherwise provided for in this Agreement, each Party shall eliminate or reduce its Customs Duties on originating goods designated for such purposes in its Schedule in Annex 1, in accordance with the terms and conditions set out therein. 2. Except as otherwise provided for in this Agreement, neither Party shall increase any Customs Duty on originating goods from the level provided for in its Schedule in Annex 1.
3.
4. The Parties shall consult to consider further steps in the process of liberalization of trade between the Parties in respect of originating goods set out in the Schedule in Annex 1, in light of the result of the multilateral trade negotiations under the World Trade Organization (WTO). 5. Any amendment to the Schedules as a result of the consultations referred to in paragraph 3 or 4 above shall be approved by both Parties in accordance with their respective legal procedures, and shall supersede any corresponding concession provided for in their respective Schedules. Article 6 Neither Party shall adopt or maintain any duties on goods exported from a Party into the other Party. Article 7 1. Except as otherwise provided for in this Agreement, each Party shall not institute or maintain any prohibition or restriction other than Customs Duties on the importation of any good of the other Party or on the exportation or sale for export of any good destined to the other Party, which is inconsistent with its obligations under Article XI of the GATT 1994 and its relevant provisions under the WTO Agreement. 2. The measures specified in Annex 2 may be maintained, provided that such measures are consistent with the rights and obligations of the Party taking such measures under the WTO Agreement. Article 8 1. The Parties agree that indications for spirits listed in Annex 3 are geographical indications referred to in paragraph 1 of Article 22 of the Agreement on Trade-Related Aspects of Intellectual Property Rights in Annex 1C to the WTO Agreement, as may be amended, and shall abide by the obligations under the relevant provisions of the said Agreement with respect to the protection of geographical indications, and for this purpose, they shall take appropriate measures to prohibit the use of any geographical indications listed in Annex 3 for spirits not originating in the place indicated by the respective geographical indication. 2. Modifications to Annex 3 proposed by both Parties may be adopted by the Joint Committee pursuant to subparagraph 2(e)(i) of Article 165. The adopted modifications shall be confirmed by an exchange of diplomatic notes and shall enter into force on the date specified in the said notes. The modified part of Annex 3 shall supersede the corresponding part provided for in Annex 3. Article 9 1. For the purposes of the effective implementation and operation of this Section, a Sub-Committee on Trade in Goods (hereinafter referred to in this Article as “the Sub- Committee”) shall be established pursuant to Article 165. 2. The Sub-Committee shall meet at such venue and times as may be agreed by the Parties. 3. The functions of the Sub-Committee shall be:
4.
Article 10 Upon the date of entry into force of this Agreement, the Joint Committee shall adopt the Uniform Regulations that provide detailed regulations pursuant to which the customs authorities, the competent governmental authorities defined in Article 49 and the relevant authorities of the Parties shall implement their functions under this Section, Chapter 4 and Chapter 5, except Section 3. Article 11 For the purposes of this Section, the term “Customs Duty” means any customs or import duty and a charge of any kind, imposed in connection with the importation of a good, but does not include any:
Section 2 Article 12 The Parties reaffirm their rights and obligations relating to sanitary and phytosanitary (hereinafter referred to in this Chapter as “SPS”) measures under the Agreement on the Application of Sanitary and Phytosanitary Measures in Annex 1A to the WTO Agreement, as may be amended. Article 13 Each Party shall designate an enquiry point which is able to answer all reasonable enquiries from the other Party regarding SPS measures referred to in Article 12 and, if appropriate, to provide their relevant information. Article 14 1. For the purposes of the effective implementation and operation of this Section, a Sub-Committee on SPS Measures (hereinafter referred to in this Article as “the Sub- Committee”) shall be established pursuant to Article 165. 2. The Sub-Committee shall meet at such venue and times as may be agreed by the Parties. 3. The functions of the Sub-Committee shall be:
4. The Sub-Committee may, if necessary, establish ad hoc technical advisory groups as its subsidiary bodies. The groups shall provide the Sub-Committee with technical information and advice at the request of the Sub-Committee. Article 15 The dispute settlement procedure provided for in Chapter 15 shall not apply to this Section. Section 3 Article 16 The Parties reaffirm their rights and obligations relating to technical regulations, standards and conformity assessment procedures under the Agreement on Technical Barriers to Trade in Annex 1A to the WTO Agreement, as may be amended. Article 17 1. The Parties shall develop cooperation between the Governments of the Parties in the field of technical regulations, standards and conformity assessment procedures (hereinafter referred to in this Article as “the Cooperation”) with a view to facilitating trade in goods between them. 2. The forms of the Cooperation may include the following:
3. The implementation of this Article shall be subject to the availability of appropriated funds and the applicable laws and regulations of each Party. Article 18 Each Party shall designate an enquiry point which is able to answer all reasonable enquiries from the other Party regarding technical regulations, standards and conformity assessment procedures and, if appropriate, to provide their relevant information. Article 19 1. For the purposes of the effective implementation and operation of this Section, a Sub-Committee on Technical Regulations, Standards and Conformity Assessment Procedures (hereinafter referred to in this Article as “the Sub- Committee”) shall be established pursuant to Article 165. 2. The Sub-Committee shall meet at such venue as may be agreed by the Parties and shall make efforts to meet once a year. 3. The functions of the Sub-Committee shall be:
Article 20 The dispute settlement procedure provided for in Chapter 15 shall not apply to this Section. Article 21 This Section shall not apply to SPS measures referred to in Section 2.
Chapter 4
1. Except as otherwise provided for in this Chapter, a good shall be an originating good where:
2. For the purposes of this Chapter, the production of a good using non-originating materials that undergo an applicable change in tariff classification and satisfying other requirements, as set out in Annex 4, shall occur entirely in the Area of one or both Parties and every regional value content of a good shall be entirely satisfied in the Area of one or both Parties. Article 23 1. Except as provided for in paragraph 4 below and Article 26, the regional value content of a good shall be calculated on the basis of the transaction value method set out in paragraph 2 below. 2. For the purposes of calculating the regional value content of a good on the basis of the transaction value method, the following formula shall be applied: TV - VNM where:
3. For the purposes of paragraph 2 above, when the producer of the good does not export it directly, the transaction value of the good shall be adjusted to the point where the buyer receives the good from the producer in the Area of a Party where the producer is located. 4. In the event that there is no transaction value or the transaction value of the good is unacceptable under Article 1 of the Customs Valuation Code, the value of the good shall be determined in accordance with Articles 2 through 7 of the Customs Valuation Code. 5. A producer may average the regional value content for one or more goods classified in the same subheading under the Harmonized System that he produces in the same plant or in more than one plant in the Area of one Party, on the basis of either all the goods produced by the producer or only those goods exported to the other Party:
Article 24 1. The value of a material:
2. Where not included under subparagraph 1(a) or 1(b) above, the value of a material:
3. The value of a non-originating material shall not include, where the producer acquires the material in the Area of the Party where the producer is located, freight, insurance, packing and all other costs incurred in transporting the material from the warehouse of the supplier of the material to the place where the producer is located; as well as any other known and ascertainable cost incurred in the Area of the producer of the good. 4. The value of non-originating materials used by the producer in the production of the good shall not include the value of the non-originating materials used by:
Article 25 1. A good shall be considered to be an originating good if the value of all non-originating materials used in the production of the good that do not undergo an applicable change in tariff classification set out in Annex 4 is not more than 10 percent of the transaction value of the good, adjusted to the basis set out in paragraph 2 or 3, as the case may be, of Article 23, and the good satisfies all other applicable requirements of this Chapter. 2. Where the good referred to in paragraph 1 above is also subject to a regional value content, the value of such non-originating materials shall be taken into account in determining the regional value of the good and the good shall be required to satisfy all other applicable requirements of this Chapter. 3. A good that is subject to a regional value content requirement pursuant to Annex 4 shall not be required to satisfy such requirement if the value of all non- originating materials is not more than 10 percent of the transaction value of the good, adjusted to the basis set out in paragraph 2 or 3, as the case may be, of Article 23. 4. Paragraph 1 above shall not apply to:
5. A good provided for in Chapters 50 through 63 of the Harmonized System that does not originate because certain fibers or yarns used in the production of the material that determines the tariff classification of the good do not undergo an applicable change in tariff classification set out in Annex 4, shall nonetheless be considered to originate if the total weight of all such fibers or yarns in that material is not more than 7 percent of the total weight of such material. Article 26 1. For the purposes of determining the regional value content of a good under Article 23, the producer of the good may designate as an intermediate material, any self- produced material used in the production of the good. 2. Where an intermediate material is subject to a regional value content requirement under subparagraph 1(d) of Article 22 or Annex 4, the value of the intermediate material shall be:
In this case, the regional value content of such material shall be not less than the percentage set out in Annex 4 minus 5 percent. Article 27 For the purposes of determining whether a good is an originating good, a producer of the good may accumulate his production with the production of one or more producers in the Area of one or both Parties, of materials incorporated in the good, in a manner that the production of the materials is considered to have been performed by that producer, provided that the provisions of Article 22 are satisfied. Article 28 1. For the purposes of determining whether a good is an originating good, where originating and non-originating fungible materials that are commingled in an inventory, are used in the production of a good, the origin of the materials may be determined pursuant to an inventory management method set out in paragraph 3 below. 2. Where originating and non-originating fungible goods are commingled in an inventory and, prior to exportation do not undergo any production process or any operation in the Area of the Party where they were commingled other than unloading, loading or any other operation necessary to preserve it in good condition or to transport the good to the other Party, the origin of the good may be determined pursuant to an inventory management method set out in paragraph 3 below. 3. The inventory management methods for fungible goods or materials shall be the following:
TOM
4. Where a good is subject to a regional value content requirement, the determination of value of non-originating fungible materials shall be made through the following formula: TNM where:
5. Once an inventory management method set out in paragraph 3 above has been chosen, it shall be used through all the fiscal year or period. Article 29 1. Sets, kits and composite goods classified pursuant to Rule 3 of the General Rules for the Interpretation of the Harmonized System, and the goods specifically described as sets, kits or composite goods in the nomenclature of the Harmonized System, shall qualify as originating, where every good contained in the sets, kits or composite goods satisfies the applicable rule of origin for each of them under this Chapter. 2. Notwithstanding paragraph 1 above, a set, kit or composite good shall be considered as originating, if the value of all non-originating goods used in the collection of the set, kit or composite good does not exceed 10 percent of the transaction value of the set, kit or composite good, adjusted to the basis set out in paragraph 2 or 3, as the case may be, of Article 23, and such set, kit or composite good satisfies all other applicable requirements of this Chapter. 3. The provisions of this Article shall prevail over the specific rules of origin set out in Annex 4. Article 30 Indirect materials shall be considered to be originating without regard to where they are produced and the value of such materials shall be their cost as reported in the accounting records of the producer of the good. Article 31 1. Accessories, spare parts or tools delivered with the good that form part of the good’s standard accessories, spare parts or tools, shall be disregarded in determining whether all the non-originating materials used in the production of the good undergo the applicable change in tariff classification set out in Annex 4, provided that:
2. If the good is subject to a regional value content requirement, the value of the accessories, spare parts or tools shall be taken into account as the value of originating or non-originating materials, as the case may be, in calculating the regional value content of the good. Article 32 1. Packaging materials and containers in which a good is packaged for retail sale shall, if classified with the good pursuant to Rule 5 of the General Rules for the Interpretation of the Harmonized System, be disregarded in determining whether all the non-originating materials used in the production of the good undergo the applicable change in tariff classification set out in Annex 4. 2. If the good is subject to a regional value content requirement, the value of such packaging materials and containers for retail sale shall be taken into account as the value of originating or non-originating materials, as the case may be, in calculating the regional value content of the good. Article 33 Packing materials and containers in which a good is packed for shipment shall be disregarded in determining whether:
Article 34 1. A good shall not be considered to be an originating good merely by reason of:
2. The provisions of this Article shall prevail over the specific rules of origin set out in Annex 4. Article 35 1. An originating good shall be considered as non- originating, even if it has undergone production that satisfies the requirements of Article 22 if, subsequent to that production, outside the Areas of the Parties, the good:
2. Evidence that an originating good has not lost its originating condition by means of paragraph 1 above shall be provided to the customs authority of the importing Party. Article 36 1. For the purposes of this Chapter:
2. For the purposes of this Chapter, in applying the Customs Valuation Code to determine the transaction value of a good or a material:
Article 37 1. For the purposes of the effective implementation and operation of this Chapter and Chapter 5, a Sub-Committee on Rules of Origin, Certificate of Origin and Customs Procedures (hereinafter referred to in this Article as “the Sub-Committee”) shall be established pursuant to Article 165. 2. The Sub-Committee shall meet at such venue and times as may be agreed by the Parties. 3. The functions of the Sub-Committee shall be:
4. The recommendation of the Sub-Committee shall be sent to the Joint Committee for necessary action under Article 165. 5. The Parties shall consult and cooperate to ensure that this Chapter and Chapter 5 are applied in an effective and uniform manner in accordance with the provisions, the spirit and the objectives of this Agreement. 6. Modifications to Annex 4 recommended by the Sub- Committee pursuant to subparagraph 3(c) above and proposed by both Parties may be adopted by the Joint Committee pursuant to subparagraph 2(e)(i) of Article 165. The adopted modifications shall be confirmed by an exchange of diplomatic notes and shall enter into force on the date specified in the said notes. The modified part of Annex 4 shall supersede the corresponding part provided for in Annex 4. Article 38 For the purposes of this Chapter:
Chapter 5 Section 1 Article 39 1. For the purposes of this Section and Section 2, upon the date of entry into force of this Agreement, the Parties shall establish a format for the certificate of origin in the Uniform Regulations referred to in Article 10. 2. The certificate of origin referred to in paragraph 1 above will have the purpose of certifying that a good being exported from one Party into the other Party qualifies as an originating good. 3. The certificate of origin referred to in paragraph 1 above shall be issued by the competent governmental authority of the exporting Party on request having been made in writing by the exporter or, under the exporter’s responsibility, by his authorized representative, in accordance with paragraph 4 below. The certificate of origin must be stamped and signed by the competent governmental authority of the exporting Party or its designees at the time of issue. For the purposes of this Article, the competent governmental authority of the exporting Party may designate other entities or bodies to be responsible for the issuance of the certificate of origin, prior authorization given under its applicable laws and regulations. Where the competent governmental authority of the exporting Party designates other entities or bodies to carry out the issuance of the certificate of origin, the exporting Party shall notify in writing the other Party of its designees. The exporting Party shall revoke the designation, where the issuance of certificates of origin by a designee is not in conformity with the provisions provided for in this Section and the situation warrants the revocation. For this purpose, the exporting Party shall consider views expressed by the importing Party in deciding on revoking the designation. 4. Prior to the issuance of a certificate of origin, an exporter that requests a certificate of origin must prove to the competent governmental authority of the exporting Party or its designees, that the good to be exported qualifies as an originating good. Where an exporter is not the producer of the good, the exporter may request a certificate of origin on the basis of a declaration voluntarily provided by the producer of the good that demonstrates that such producer has proved to the competent governmental authority or its designees, that the good concerned qualifies as an originating good. Nothing in this paragraph shall be construed to oblige the producer of the good to certificate that the good qualifies as an originating good. If the producer decides not to provide the declaration concerned, the exporter shall be required to prove to the competent governmental authority or its designees that the good to be exported qualifies as an originating good. 5. The competent governmental authority or its designees shall issue a certificate of origin after the exportation of a good when it is requested by the exporter in accordance with paragraph 4 above. The certificate of origin issued retrospectively must be endorsed with the phrase set out in the Uniform Regulations referred to in Article 10. 6. In the event of theft, loss or destruction of a certificate of origin, the exporter may request to the competent governmental authority or its designees which issued it a duplicate made out on the basis of the export documents in their possession. The duplicate issued in this way must be endorsed with the phrase set out in the Uniform Regulations referred to in Article 10. 7. The certificate of origin for a good imported into the importing Party shall be completed in the English language. If the certificate of origin is not completed in the English language, a translation into the official language of the importing Party shall be attached thereto. If the certificate of origin is completed in the English language, a translation into the Spanish or the Japanese language shall not be required. 8. Each Party shall provide that a valid certificate of origin that fulfills the requirements of this Section that is applicable to a single importation of a good into the other Party, shall be accepted by the customs authority of the importing Party for 1 year or another period that the Parties may agree, after the date on which the certificate was issued. 9. The competent governmental authority of the exporting Party shall:
Article 40 1. Except as otherwise provided for in this Section, each Party shall require an importer that claims preferential tariff treatment for a good imported from the other Party to:
2. Where an importer claims preferential tariff treatment for a good imported into a Party from the other Party, the customs authority of the importing Party may deny preferential tariff treatment to the good if the importer fails to comply with any requirement under this Article. 3. Each Party shall ensure that, in the case that the importer at the time of importation does not have in his possession a certificate of origin, the importer of the good may, in accordance with the domestic laws and regulations of the importing Party, provide the certificate of origin and if required such other documentation relating to the importation of the good at a later stage, within a period not exceeding 1 year after the time of importation. Article 41 1. Each Party shall ensure that an exporter or a producer that has completed and signed a certificate of origin, and that has reasons to believe that the certificate contains incorrect information, shall promptly notify in writing, of any change that could affect the accuracy or validity of the certificate of origin to all persons to whom he gave the certificate, as well as to its competent governmental authority or its designees and to the customs authority of the importing Party. The notification shall be sent by one of the methods stipulated in paragraph 4 of Article 44. If this is done prior to the commencement of a verification referred to in Article 44 and if the exporter or producer demonstrates that at time of issuance of the certificate of origin he possessed facts upon which he could reasonably rely to the effect that the good qualified as an originating good, the exporter or producer shall not be subject to penalties for having submitted an incorrect certificate. 2. Each Party shall ensure that providing false declarations or documents to its competent governmental authority or its designees by its exporters or producers stating that the good qualifies as an originating good shall be subject to penalties or other appropriate sanctions as provided for in Article 46. 3. Each Party shall ensure that the exporter referred to in paragraph 3 of Article 39 or the producer referred to in paragraph 4 of Article 39, as the case may be, shall be prepared to submit at any time, at the request of the competent governmental authority or its designees of the exporting Party, all appropriate documents proving the originating status of the goods concerned as well as the fulfillment of other requirements under this Agreement. Article 42 Each Party shall ensure that a certificate of origin shall not be required for:
provided that the importation does not form part of a series of importations that may reasonably be considered to have been undertaken or arranged for the purposes of avoiding the certification requirements of Articles 39 and 40. Section 2 Article 43 1. Each Party shall ensure that:
2. Each Party shall ensure that the competent governmental authority or its designees shall keep a record of the certificate of origin issued for a minimum period of 5 years after the date on which the certificate was issued. Such record will include all antecedents, which were presented to prove the qualification as an originating good. Article 44 1. For the purposes of determining whether a good imported from the other Party under preferential tariff treatment qualifies as an originating good, the importing Party may conduct a verification through its customs authority, by means of:
2. Where the customs authority of the importing Party has initiated a verification in accordance with this Article, the provisions of Annex 5 shall be applied as appropriate. 3. For the purposes of subparagraph 1(a), the competent governmental authority of the exporting Party shall provide the information requested, in a period not exceeding 4 months, after the date of the request. If the customs authority of the importing Party considers necessary, it may require additional information relating to the origin of the good. If additional information is requested by the customs authority of the importing Party, the competent governmental authority of the exporting Party shall provide the information requested in a period not exceeding 2 months after the date of the request. If the competent governmental authority of the exporting Party fails to respond to the request within the period specified therein, the customs authority of the importing Party shall determine that the good subject to the verification does not qualify as an originating good, therefore considering the certificate of origin as not valid, and shall deny it preferential tariff treatment. 4. The customs authority of the importing Party shall send the questionnaires referred to in subparagraph 1(b), to the exporters or producers in the exporting Party, by any of the following means:
The customs authority of the importing Party shall immediately communicate to the competent governmental authority of the exporting Party whenever it sends a questionnaire referred to in subparagraph 1(b). 5. The provisions of paragraph 1 above shall not prevent the customs authority or the competent governmental authority, as the case may be, of the importing Party from exercising its powers to take action in that Party, in relation with the compliance with its domestic laws and regulations by its own importers, exporters or producers. 6. The exporter or producer who receives a questionnaire pursuant to subparagraph 1(b) shall have 30 days from the date of its receipt to answer such questionnaire and return it. 7. Where the importing Party has received the answer to the questionnaire referred to in subparagraph 1(b) within the period specified in paragraph 6 above, and considers that it requires more information to determine whether the good subject to the verification qualifies as an originating good, it may, through its customs authority, request additional information from the exporter or producer, by means of a subsequent questionnaire, in which case, the exporter or producer shall have 30 days from the date of its receipt to answer and return it. 8.
9. The conducting of a verification in accordance with one of the methods set forth in paragraph 1 above shall not preclude the use of another verification method provided for in paragraph 1 above. 10. When requesting the exporting Party to conduct a visit pursuant to subparagraph 1(c), the importing Party shall deliver a written communication with such request to the exporting Party, the receipt of which is to be confirmed by the latter Party, at least 30 days in advance of the proposed date of the visit. The competent governmental authority of the exporting Party shall request the written consent of the exporter or producer whose premises are to be visited. 11. The communication referred to in paragraph 10 above shall include:
12. Any modification to the information referred to in paragraph 11 above shall be notified in writing, prior to the proposed date of the visit referred to in subparagraph 11(c). If the proposed date referred to in subparagraph 11(c) is to be modified, this shall be notified in writing at least 10 days prior to the date of the visit. 13. The exporting Party shall respond in writing to the importing Party, within 20 days of the receipt of the communication referred to in paragraph 10 above, if it accepts or refuses to conduct a visit requested pursuant to subparagraph 1(c). 14. Where the exporting Party refuses to conduct a visit, or that Party fails to respond to the communication referred to in paragraph 10 above within the period referred to in paragraph 13 above, the customs authority of the importing Party shall determine that the good or goods that would have been the subject of the visit do not qualify as originating goods, therefore considering the certificate of origin as not valid, and shall deny them preferential tariff treatment. 15. The competent governmental authority of the exporting Party shall provide, within 45 days, or any other mutually agreed period, from the last day of the visit, to the customs authority of the importing Party the information obtained through the visit. 16. It is confirmed by both Parties that during the course of a verification referred to in paragraph 1 above, the customs authority of the importing Party may request information necessary for determining the origin of a material used in the production of the good. 17. For the purposes of obtaining information on the origin of the material used in the production of the good, the exporter or producer of the good referred to in paragraph 1 above may request a producer of the material to provide voluntarily the former with information relating to the origin of such material. In case the producer of such material desires, such information may be sent to the competent governmental authority of the exporting Party for the provision to the customs authority of the importing Party, without the involvement of the exporter or producer of the good. 18. Where the customs authority of the importing Party requests information relating to the origin of a material pursuant to paragraph 16 above, during the course of a verification in accordance with the method set forth in subparagraph 1(a), the information shall be provided by the competent governmental authority of the exporting Party in accordance with paragraph 3 above. Where the customs authority of the importing Party requests information relating to the origin of a material pursuant to paragraph 16 above, during the course of a verification in accordance with the method set forth in subparagraph 1(b), the information shall be provided by the exporter or producer of the good or the competent governmental authority of the exporting Party, as the case may be, in accordance with paragraph 6 or 7 above, as appropriate and mutatis mutandis , provided that in case the information is provided by the competent governmental authority, the 30 day period referred to in paragraph 6 or 7 above shall mean the period beginning on the date of the receipt of the questionnaire by that exporter or producer. Where the customs authority of the importing Party requests information relating to the origin of a material pursuant to paragraph 16 above, during the course of a verification in accordance with the method set forth in subparagraph 1(c), the information shall be provided by the competent governmental authority of the exporting Party in accordance with paragraph 15 above. 19. The requesting of information relating to the origin of a material pursuant to paragraph 16 above during the course of a verification in accordance with one of the methods set forth in paragraph 1 above shall not preclude the requesting of information relating to the origin of a material during the course of a verification in accordance with another verification method provided for in paragraph 1 above. 20. The customs authority of the importing Party shall determine that a material used in the production of the good is a non-originating material where the exporter or producer of the good or the competent governmental authority of the exporting Party, as the case may be, does not provide the information that demonstrates that the material in question qualifies as originating, or where the information provided is not sufficient to determine whether that material is originating. Such a determination shall not necessarily lead to a decision that the good itself is not originating. 21. Each Party shall, through its customs authority, conduct a verification of a regional value content requirement in accordance with the Generally Accepted Accounting Principles applied in the Party from which the good was exported. 22. After carrying out the verification procedures outlined in paragraph 1 above, the customs authority of the importing Party shall in the manner specified in paragraph 4 above, provide the exporter or producer whose good is subject to the verification, a written determination of whether or not the good qualifies as an originating good under Chapter 4, including findings of fact and the legal basis for the determination. 23. Where the customs authority of the importing Party denies preferential tariff treatment to the good in question in the cases of paragraph 3, 8(b) or 14 above, a written determination thereof shall be sent to the exporter or producer, in the manner specified in paragraph 4 above. 24. When the Party conducting a verification referred to in paragraph 1 above determines, based on the information obtained during the verification, that a good does not qualify as an originating good, and provides the exporter or producer with a written determination pursuant to paragraph 22 above, it shall grant the exporter or producer whose good was the subject of the verification, 30 days from the date of receipt of the written determination, to provide any comments or additional information before denying preferential tariff treatment to the good, and shall issue a final determination after taking into consideration any comments or additional information received from the exporter or producer during the above- mentioned period, and shall send it to the exporter or producer in the manner specified in paragraph 4 above. 25. Where the verification completed by the customs authority of the importing Party indicates that an exporter or a producer has repeatedly made false representations that a good imported into the Party qualifies as an originating good, the customs authority of the importing Party may withhold preferential tariff treatment to identical goods exported or produced by such person until that person establishes compliance with Chapter 4 to that authority. In taking such an action, the customs authority of the importing Party shall notify the person who completed and signed the certificate of origin and the competent governmental authority of the exporting Party. 26. Communications from the importing Party to an exporter or producer in the exporting Party as well as the response to the questionnaire referred to in subparagraph 1(b) to the importing Party shall be conducted in the English language. Article 45 1. Each Party shall maintain, in accordance with its domestic laws and regulations, the confidentiality of information provided to it as confidential pursuant to Section 1 and this Section and shall protect that information from disclosure that could prejudice the competitive position of the persons providing the information. 2. Information obtained pursuant to Section 1 and this Section may only be disclosed, for the purposes of Section 1 and this Section, to those competent authorities of the Parties responsible for the administration and enforcement of determinations of origin and of customs duties and other indirect taxes on imports, and shall not be used by a Party in any criminal proceedings carried out by a court or a judge, unless the information is requested to the other Party and provided to the former Party, in accordance with the applicable laws of the requested Party or appropriate international cooperation agreements to which both Parties are parties. Article 46 Each Party shall ensure that criminal, civil or administrative penalties or other appropriate sanctions against its importers, exporters and producers for providing false declaration or documents relating to Section 1 and this Section to its customs authority, competent governmental authority or its designees, shall be established or maintained. Article 47 Each Party shall ensure that its importers have access to:
in accordance with its domestic laws and regulations. Article 48 The provisions of this Agreement may be applied to goods which comply with the provisions of Chapter 4 and Section 1, and which on the date of entry into force of this Agreement are in transit, in Japan or Mexico, or in temporary storage in bonded area, subject to the submission to the customs authority of the importing Party in accordance with the domestic laws and regulations of that Party, within 4 months of that date, of a certificate of origin issued retrospectively, in accordance with paragraph 5 of Article 39, by the competent governmental authority or its designees of the exporting Party together with the documents showing that the goods have been transported directly. Article 49 1. For the purposes of Section 1 and this Section:
2. Except as otherwise defined in this Article, the definitions of Chapter 4 shall apply. Section 3 Article 50 For prompt customs clearance of goods traded between the Parties, each Party, recognizing the significant role of customs authorities and the importance of customs procedures in promoting trade facilitation, shall make cooperative efforts to:
Chapter 6 Article 51 1. This Chapter establishes rules for the application of bilateral safeguard measures to originating goods, which shall be applied only between the Parties (hereinafter referred to as “bilateral safeguard measures”). 2. Nothing in this Agreement shall prevent a Party from applying safeguard measures in accordance with Article XIX of the GATT 1994 and the Agreement on Safeguards in Annex 1A to the WTO Agreement, as may be amended. Except for the bilateral safeguard measures provided for in this Chapter, no Party shall apply safeguard measures to originating goods which are accorded the preferential tariff treatment in accordance with Article 5, outside the scope of Article XIX of the GATT 1994 and the Agreement on Safeguards in Annex 1A to the WTO Agreement, as may be amended. Article 52 Each Party shall ensure the consistent, impartial and reasonable administration of its laws, regulations, decisions and rulings governing proceedings of bilateral safeguard measures. Article 53 1. Subject to the provisions of this Chapter, each Party may apply a bilateral safeguard measure, to the minimum extent necessary to prevent or remedy the serious injury and to facilitate adjustment if an originating good imported from the other Party, which is accorded the preferential tariff treatment in accordance with Article 5, as a result of the elimination or reduction of a customs duty, is being imported into the former Party in such increased quantities, in absolute terms, and under such conditions that the imports of that originating good constitute a substantial cause of serious injury, or threat thereof, to a domestic industry of the former Party. 2. A Party proposing to apply a bilateral safeguard measure may (a) suspend the further reduction of any rate of customs duty on the originating good referred to in paragraph 1 above in accordance with Article 5; or (b) increase the rate of customs duty on the originating good to a level not to exceed the lesser of:
3. A bilateral safeguard measure shall consist of tariff measures, including application of tariff rate quotas. 4. Each Party shall not apply bilateral safeguard measures on an originating good imported up to the limit of quota quantities granted under tariff rate quotas applied in accordance with Schedule in Annex 1. 5. No bilateral safeguard measure shall be maintained for a period exceeding 3 years. However, in very exceptional circumstances, after the prior consultations referred to in paragraph 9 below, a bilateral safeguard measure may be maintained for up to a total maximum period of 4 years. A Party taking such measure shall present to the other Party a schedule leading to its progressive elimination. 6. No bilateral safeguard measure shall be applied again to the imports of the same originating good which has been subject to a bilateral safeguard measure, for a period of time equal to the duration of the previous measure or 1 year, whichever is longer. 7. A Party shall deliver a written notice in English to the other Party immediately upon initiation of an investigation referred to in Article 55. Such written notice shall include the reason for the initiation of the investigation, a precise description of the originating good involved and its subheading or a more detailed level of the Harmonized System. 8. A Party shall deliver a written notice in English to the other Party prior to applying a bilateral safeguard measure. Such written notice shall include a description of evidence of the serious injury or threat thereof caused by the increased imports, a precise description of the originating good involved and its subheading or a more detailed level of the Harmonized System, a precise description of the proposed bilateral safeguard measure, its date of entry into force, and its expected duration. 9. A Party proposing to apply a bilateral safeguard measure shall provide adequate opportunity for prior consultations with the other Party on such measure with a view to, inter alia , reaching an agreement on compensation set out in paragraph 10 below. 10. A Party proposing to apply a bilateral safeguard measure shall offer the other Party adequate means of trade compensation in the form of additional concessions of customs duties whose levels are substantially equivalent to the value of the additional customs duties expected to result from such measure, and, in the case that room for such sufficient additional concessions of customs duties is already exhausted through overall reduction of customs duties, other concessions which the Parties may agree upon. 11. If the Parties are unable to agree on compensation within 60 days after the date when a Party initiates the application of the bilateral safeguard measure, the other Party shall be free to suspend, to the trade of the Party applying such measure, the application of concessions of customs duties under Article 5, which are substantially equivalent to such measure applied. For this purpose, the Party exercising the right of suspension may suspend the application of concessions of customs duties only for the minimum period necessary. 12. Upon termination of a bilateral safeguard measure, the rate of customs duty shall be the rate which would have been in effect but for such measure. 13. The Parties shall review the provisions of this Chapter, if necessary, after 10 years of the date of entry into force of this Agreement. Article 54 1. In critical circumstances, where delay would cause damage which it would be difficult to repair, a Party may take a provisional bilateral safeguard measure pursuant to a preliminary determination that there is clear evidence that increased imports have caused or are threatening to cause serious injury to a domestic industry. 2. A Party shall deliver a written notice in English to the other Party prior to applying a provisional bilateral safeguard measure. Consultations on such measure shall take place promptly after such measure is taken. 3. The duration of the provisional bilateral safeguard measure shall not exceed 200 days. During that period, the pertinent requirements of Articles 52 and 55 shall be met. The duration of such measure shall be counted as a part of the period referred to in paragraph 5 of Article 53. 4. Paragraphs 2 through 4 and 12 of Article 53 shall be applied mutatis mutandis to the provisional bilateral safeguard measure. The customs duty imposed as a result of such measure shall be refunded within 60 days if the subsequent investigation referred to in Article 55 does not determine that increased imports have caused or threatened to cause serious injury to a domestic industry. Article 55 1. Each Party shall adopt or maintain equitable, timely, transparent and effective proceedings relating to bilateral safeguard measures. 2. A Party shall apply a bilateral safeguard measure only following an investigation by its investigating authority pursuant to the provisions of this Chapter. 3. The investigating authority of a Party shall examine and ensure the existence of sufficient evidence that the increased imports of an originating good are causing serious injury or threat thereof to the domestic industry concerned, to justify the initiation of an investigation. 4. An investigation shall, except in special circumstances, be completed within 1 year, and in no case more than 18 months, following its date of initiation. 5. Upon initiation of an investigation, the investigating authority of a Party shall give a public notice of the initiation of the investigation through the official journal of that Party. The public notice shall identify the originating good subject to the investigation and its subheading or a more detailed level of the Harmonized System, the period of investigation, the date of initiation of the investigation, deadlines for filing statements and other documents, and the place at which documents filed during the investigation may be inspected. 6. Each Party shall establish procedure to allow an interested party to have access to information submitted by other interested parties to the investigating authority of that Party after submission of such information. The investigating authority shall, upon request of an interested party, provide timely access to the information, including documents, items of evidence, and non- confidential written summaries referred to in paragraph 7 below, which were submitted by other interested parties during the investigation. In particular, the investigating authority shall grant access to the interested parties to the following information related to the investigation:
7. Notwithstanding paragraph 6 above, each Party shall adopt or maintain procedures for the treatment of confidential information as specified by that Party in accordance with its domestic laws and regulations and which is provided in the course of an investigation. When the interested parties provide such information, they shall be required to furnish non-confidential written summaries thereof, or if they indicate that the information cannot be summarized, the reasons why a summary cannot be provided. 8. During the course of each investigation, the investigating authority of a Party shall endeavor to hold a public hearing after providing reasonable notice, so that opposite views may be presented and rebuttal arguments offered. Such public hearing should allow interested parties to defend their interest and to question the other parties. 9. In the investigation to determine whether increased imports have caused serious injury or are threatening to cause serious injury to a domestic industry, the investigating authority of a Party shall evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation of that domestic industry, in particular, the rate and amount of the increase in imports of the originating good, in absolute terms, the share of the domestic market taken by increased imports, and changes in the level of sales, production, productivity, capacity utilization, profits and losses, employment, and prices. 10. The determination that increased imports have caused serious injury or are threatening to cause serious injury to a domestic industry shall not be made unless this investigation demonstrates, on the basis of objective evidence, the existence of the causal link between increased imports of the originating good and serious injury or threat thereof. When factors other than increased imports are causing injury to the domestic industry at the same time, such injury shall not be attributed to increased imports. 11. With regard to determination on whether increased imports have caused serious injury or are threatening to cause serious injury to a domestic industry, the investigating authority of a Party shall not arbitrarily modify a negative injury determination. 12. Upon decision to apply a bilateral safeguard measure, investigating authority of a Party shall give a public notice through the official journal of that Party. The public notice shall identify the originating good subject to such measure and its subheading or a more detailed level of the Harmonized System, the duration of such measure, and the findings and reasoned conclusions reached on all pertinent issues of law and fact. 13. In the public notice the investigating authority of a Party shall not disclose any confidential information referred to in paragraph 7 above. Article 56 For the purposes of this Chapter:
Chapter 7 Section 1 Article 57 1. This Chapter shall apply to measures adopted or maintained by a Party relating to:
2. A Party has the right to perform exclusively the economic activities set out in Annex 8 and to refuse to permit the establishment of investment in such activities. 3. This Chapter shall not apply to measures adopted or maintained by a Party to the extent that they are covered by Chapter 9. 4. Nothing in this Chapter shall impose any obligation on either Party regarding measures pursuant to immigration laws and regulations.
Article 58 1. Each Party shall accord to investors of the other Party and to their investments treatment no less favorable than the treatment it accords, in like circumstances, to its own investors and to their investments with respect to the establishment, acquisition, expansion, management, conduct, operation, maintenance, use, enjoyment and sale or other disposition of investments (hereinafter referred to in this Chapter as “investment activities”). 2. The treatment accorded by a Party under paragraph 1 above means, with respect to a local government in the case of Japan, and with respect to a state in the case of Mexico, treatment no less favorable than the most favorable treatment accorded, in like circumstances, by that local government or state to investors, and to investments of investors, of the Party of which it forms a part. Article 59 Each Party shall accord to investors of the other Party and to their investments, treatment no less favorable than the treatment it accords, in like circumstances, to investors of a non-Party and to their investments with respect to investment activities.
Article 60 Each Party shall accord to investments of investors of the other Party treatment in accordance with international law, including fair and equitable treatment and full protection and security.
Article 61 1. Neither Party shall expropriate or nationalize an investment of an investor of the other Party in its Area either directly or indirectly through measures tantamount to expropriation or nationalization (hereinafter referred to as “expropriation”) except: (a) for a public purpose; (b) on a non-discriminatory basis; (c) in accordance with due process of law and Article 60; and (d) on payment of compensation pursuant to paragraphs 2 through 5 below. 2. Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation occurred. The fair market value shall not reflect any change in value occurring because the expropriatory action had become known earlier. Valuation criteria to determine the fair market value may include declared tax value of tangible property. The compensation shall be paid without delay and be fully realizable. 3. If payment is made in a freely usable currency, compensation shall include interest at a commercially reasonable rate for that currency from the date of expropriation until the date of actual payment. 4. If a Party elects to pay in a currency other than a freely usable currency, the compensation paid, converted into the currency of payment at the market rate of exchange prevailing on the date of payment, shall be no less than:
5. On payment, compensation shall be freely transferable as provided in Article 63. Article 62 Without prejudice to Article 60 and notwithstanding Article 66, each Party shall accord to investors of the other Party and to their investments treatment no less favorable than the treatment it accords to its own investors or investors of a non-Party and to their investments, whichever is more favorable to the investor of the other Party or its investments, with respect to measures, such as restitution, indemnification, compensation or any other settlement, it adopts or maintains relating to losses suffered by investments in its Area owing to armed conflict, civil strife or any other similar event. Article 63 1. Each Party shall allow all transfers relating to an investment in its Area of an investor of the other Party to be made freely and without delay. Such transfers shall include:
2. Each Party shall allow transfers to be made without delay in a freely usable currency at the market rate of exchange prevailing on the date of the transfer with respect to spot transactions in the currency to be transferred. 3. Notwithstanding paragraphs 1 and 2 above, a Party may delay or prevent a transfer through the equitable, non- discriminatory and good faith application of its laws relating to:
Article 64 1. Neither Party may require that an enterprise of that Party that is an investment of an investor of the other Party appoint to senior management positions individuals of any particular nationality. 2. A Party may require that a majority of the board of directors, or any committee thereof, of an enterprise of that Party that is an investment of an investor of the other Party, be of a particular nationality, or resident of the Party, provided that the requirement does not materially impair the ability of the investor to exercise control over its investment. Article 65 1. Neither Party may impose or enforce any of the following requirements, or enforce any commitment or undertaking, in connection with the establishment, acquisition, expansion, management, conduct or operation of an investment of an investor of a Party or of a non-Party in its Area:
2. Neither Party may condition the receipt or continued receipt of an advantage, in connection with an investment in its Area of an investor of a Party or of a non-Party, on compliance with any of the following requirements:
3. Nothing in paragraph 2 above shall be construed to prevent a Party from conditioning the receipt or continued receipt of an advantage, in connection with an investment in its Area of an investor of a Party or of a non-Party, on compliance with a requirement to:
in its Area. 4. Paragraphs 1 and 2 above shall not apply to any requirement other than the requirements set out in those paragraphs. 5. Provided that such measures are not applied in an arbitrary or unjustifiable manner, or do not constitute a disguised restriction on international trade or investment activities, nothing in subparagraph 1(b) or (c) or 2(a) or (b) above shall be construed to prevent any Party from adopting or maintaining measures:
Article 66 1. Articles 58, 59, 64 and 65 shall not apply to:
2. Each Party shall set out in its Schedule to Annex 6, within 6 months of the date of entry into force of this Agreement, any existing non-conforming measure maintained by a state or a prefecture as referred to in subparagraphs 1(b)(i)(AA) and 1(b)(ii)(AA) above, and shall notify thereof the other Party by a diplomatic note. 3. Articles 58, 59, 64 and 65 shall not apply to any measure that a Party adopts or maintains with respect to sectors, subsectors or activities, as set out in its Schedule to Annex 7. 4. Neither Party may, under any measure adopted after the date of entry into force of this Agreement and covered by Annex 7, require an investor of the other Party, by reason of its nationality, to sell or otherwise dispose of an investment that exists at the time the measure becomes effective. 5. Article 59 shall not apply to treatment accorded by a Party pursuant to agreements, or with respect to sectors, set out in its Schedule to Annex 9. 6. Articles 58, 59 and 64 shall not apply to any measure adopted or maintained with respect to procurement by a Party or a state enterprise. 7. The provisions of:
Article 67 To the maximum extent possible, each Party shall notify the other Party of any new measure that the former Party considers might materially affect the implementation and operation of this Chapter and of Annexes 6 to 9. Article 68 1. Nothing in Article 58 shall be construed to prevent a Party from adopting or maintaining a measure that prescribes special formalities in connection with the establishment of investments by investors of the other Party, such as the compliance with registration requirements or that investments be legally constituted under the laws or regulations of the Party, provided that such formalities do not materially impair the protection afforded by a Party to investors of the other Party and investments of investors of the other Party pursuant to this Chapter. 2. Notwithstanding Article 58 or 59, a Party may require an investor of the other Party, or its investment in its Area, to provide routine information concerning that investment solely for information or statistical purposes. The Party shall protect such business information that is confidential from any disclosure that would prejudice the competitive position of the investor or the investment. Nothing in this paragraph shall be construed to prevent a Party from otherwise obtaining or disclosing information in connection with the equitable and good faith application of its law. Article 69 In the event of any inconsistency between this Chapter and another Chapter, the other Chapter shall prevail to the extent of the inconsistency. Article 70 1. A Party may deny the benefits of this Chapter to an investor of the other Party that is an enterprise of such Party and to an investment of such investor if investors of a non-Party own or control the enterprise and the denying Party:
2. Subject to prior notification and consultation, a Party may deny the benefits of this Chapter to an investor of the other Party that is an enterprise of such Party and to investments of such investor if investors of a non-Party own or control the enterprise and the enterprise has no substantial business activities in the Area of the Party under whose law it is constituted or organized. Article 71 1. An issuer may provide to investors of any Party, investment support in connection with projects or activities in the Area of the other Party. Investors and investments of investors of a Party in the Area of the other Party may enter into agreements for investment support with the issuer. The issuer will undertake investment support only in respect of projects and activities allowed by this Agreement. 2. If the issuer makes a payment to any person or entity, or exercises its rights as a creditor or subrogee, in connection with any investment support, the other Party shall recognize the transfer to, or acquisition by, the issuer of any cash, accounts, credits, instruments or other assets in connection with such payment or the exercise of such rights, as well as the succession of the issuer to any right, title, claim, privilege or cause of action, existing, or which may arise, in connection therewith. 3. With respect to any interests transferred to or acquired by the issuer or any interests to which the issuer succeeds, under this Article, in its own right or otherwise by contract or operation of law, the issuer shall assert no greater rights than those of the person or entity from whom such interests were received. 4. To the extent that the laws of a Party partially or wholly restrict ownership or acquisition by, or transfer or succession to, the issuer of any interests as described in paragraph 3 above, the Party shall permit the issuer to make appropriate arrangements to transfer such assets, interests or rights to a person or entity permitted to own them under the laws of that Party. Article 72 1. A Party may adopt or maintain measures not conforming with its obligations under Article 58 relating to cross- border capital transactions and Article 63:
2. Measures referred to in paragraph 1 above:
3. Nothing in this Chapter shall be regarded as altering the rights enjoyed and obligations undertaken by a Party as a party to the Articles of Agreement of the International Monetary Fund, as may be amended. Article 73 1. Nothing in this Chapter shall be construed so as to derogate from the rights and obligations under multilateral agreements in respect of protection of intellectual property rights to which the Parties are parties. 2. Nothing in this Chapter shall be construed so as to oblige either Party to extend to investors of the other Party and their investments treatment accorded to investors of a non-Party and their investments by virtue of multilateral agreements in respect of protection of intellectual property rights, to which the former Party is a party. Article 74 The Parties recognize that it is inappropriate to encourage investment by relaxing domestic health, safety or environmental measures. Accordingly, a Party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion or retention in its Area of an investment of an investor. If a Party considers that the other Party has offered such an encouragement, it may request consultations with the other Party and the Parties shall consult with a view to avoiding any such encouragement. Section 2 Article 75 Without prejudice to the rights and obligations of the Parties under Chapter 15, this Section establishes a mechanism for the settlement of investment disputes that assures both equal treatment among investors of the Parties and due process before an impartial tribunal. Article 76 1. An investor of a Party:
2. An investment may not make a claim under this Section. Article 77 The disputing parties should first attempt to settle a claim through consultation or negotiation. Article 78 1. The disputing investor shall submit to the disputing Party a written request for consultations with a view to settling the claim amicably at least 180 days before the claim may be submitted to arbitration. Such a request shall specify:
2. The disputing investor may not submit its written request referred to in paragraph 1 above before the events giving rise to a claim have occurred. Article 79 1. Subject to the compliance of the requirements established under Article 78 the disputing investor may submit the claim to:
2. The applicable arbitration rules shall govern the arbitration under this Section except to the extent modified by this Section. Article 80 1. Each Party consents to the submission of a claim to arbitration in accordance with the procedures set out in this Section. 2. The consent given by paragraph 1 above and the submission by a disputing investor of a claim to arbitration shall satisfy the requirement of:
Article 81 1. No claim may be submitted to arbitration under this Section if more than 3 years have elapsed from the date on which the investor (for claims brought under subparagraph 1 (a) of Article 76) or the enterprise (for claims brought under subparagraph 1(b) of Article 76) first acquired, or should have first acquired knowledge of the breach alleged under Article 76 and knowledge that the investor (for claims brought under subparagraph 1(a) of Article 76), or the enterprise (for claims brought under subparagraph 1(b) of Article 76) had incurred loss or damage. 2. No claim may be submitted to arbitration under this Section unless:
3. Notwithstanding subparagraphs (b) and (c) above, the investor (for claims submitted to arbitration under subparagraph 1(a) of Article 76) and both the investor and the enterprise (for claims submitted to arbitration under subparagraph 1(b) of Article 76), may initiate or continue an action that seeks interim injunctive relief or other extraordinary relief that does not involve the payment of damages before an administrative tribunal or court under the law of the disputing Party. 4. With respect to the submission of a claim to arbitration:
Article 82 1. Except in respect of a Tribunal established under Article 83, and unless the disputing parties otherwise agree, the Tribunal shall comprise 3 arbitrators, one arbitrator appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, appointed by agreement of the disputing parties. 2. The Secretary-General shall serve as appointing authority for an arbitration under this Section. 3. If the Tribunal, other than the Tribunal established under Article 83, has not been constituted within 90 days from the date on which a claim was submitted to arbitration, the Secretary-General, on the request of either disputing party, shall appoint, in his discretion, the arbitrator or arbitrators not yet appointed except that the presiding arbitrator shall be appointed in accordance with paragraph 4 below. 4. The Secretary-General shall appoint the presiding arbitrator from the roster of presiding arbitrators referred to in paragraph 5 below or, if not available, from the ICSID Panel of Arbitrators, provided that in both cases the presiding arbitrator shall not be a national of the disputing Party or a national of the Party of the disputing investor. 5. The Parties may establish, and thereafter maintain, a roster of 20 presiding arbitrators experienced in international law and investment matters. The roster members shall be appointed by agreement of the Parties and without regard to nationality. Article 83 1. When a disputing party considers that two or more claims submitted to arbitration under Article 76 have a question of law or fact in common, the disputing party may seek a consolidation order in accordance with the terms of paragraphs 2 through 9 below. 2. A disputing party that seeks a consolidation order under this Article shall deliver, in writing, a request to the Secretary-General to establish a Tribunal under this Article. The request shall:
3. Within 60 days of receipt of the request, the Secretary-General shall establish a Tribunal comprising 3 arbitrators. One arbitrator shall be a national of the disputing Party, the second arbitrator shall be a national of the Party of the disputing investor, and the presiding arbitrator shall not be a national of any of the Parties. 4. A Tribunal established under this Article shall be established under the ICSID Convention or the ICSID Additional Facility Rules as may be amended, as appropriate, and shall conduct its proceedings in accordance with the provisions thereof, except as modified by this Section. 5. Any disputing investor that has submitted a claim to arbitration and considers that such a claim raises questions of law or fact which are common to those upon which the consolidation under paragraph 2 above has been requested, but has not been named in a request made under paragraph 2 above, may request to the Tribunal established under this Article to consider the consolidation of his claim. The request shall comply with the requirements established in paragraph 2 above. 6. The disputing investor referred to in paragraph 5 above shall deliver to the disputing Party or disputing investors with respect to whom the order is sought, a copy of the request made under paragraph 5 above. 7. On application of a disputing party, a Tribunal established under this Article may order the adjourning of the proceedings related to claims referred to in paragraphs 1 and 5 above. 8. A Tribunal established under this Article may, in the interests of fair and efficient resolution of the dispute, and after hearing the disputing parties, by order:
9. A Tribunal established under Article 79 shall not have jurisdiction to decide a claim, or a part of a claim, over which a Tribunal established under this Article has assumed jurisdiction in the terms of paragraph 8 above. Article 84 1. A Tribunal established under this Section shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law. 2. An interpretation of a provision of this Agreement adopted by the Joint Committee shall be binding on a Tribunal established under this Section. Such interpretation shall be made publicly available through the means that each Party considers appropriate. Article 85 A disputing Party shall deliver to the other Party:
Article 86 On written notice to the disputing parties, the Party other than the disputing Party may make submissions to a Tribunal on a question of interpretation of this Agreement. Article 87 1. The Party other than the disputing Party shall be entitled to receive from the disputing Party, at the cost of the requesting Party a copy of:
2. The Party receiving information pursuant to paragraph 1 above shall treat the information as if it were a disputing Party. Article 88 Unless the disputing parties agree otherwise, a Tribunal shall hold an arbitration in a country that is a party to the New York Convention. Article 89 1. Where a disputing Party asserts as a defense that the measure alleged to be a breach is within the scope of a reservation or exception set out in Annex 6, Annex 7, Annex 8 or Annex 9, on request of the disputing Party, the Tribunal shall request the Joint Committee to adopt an interpretation on the issue. The Joint Committee, within 60 days of delivery of the request, shall adopt an interpretation and submit in writing its interpretation to the Tribunal. 2. Further to Article 84, an interpretation adopted and submitted under paragraph 1 above shall be binding on the Tribunal. If the Joint Committee fails to submit an interpretation within 60 days, the Tribunal shall decide the issue. Article 90 Without prejudice to the appointment of other kinds of experts where authorized by the applicable arbitration rules, a Tribunal, at the request of a disputing party or, unless the disputing parties disapprove, on its own initiative, may appoint one or more experts in the fields of environmental, health, safety or other scientific matters to report to it in writing on any factual issue concerning matters of their expertise raised by a disputing party in a proceeding, subject to such terms and conditions as the disputing parties may agree. Article 91 A Tribunal may order an interim measure of protection to preserve the rights of a disputing party, or to facilitate the conduct of arbitral proceedings, including an order to preserve evidence in the possession or control of a disputing party. A Tribunal may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in paragraph 1 of Article 76. Article 92 1. Where a Tribunal makes a final award against a disputing Party, the Tribunal may award, separately or in combination, only:
A Tribunal may also award costs in accordance with the applicable arbitration rules. 2. Subject to paragraph 1 above, where a claim is made under subparagraph 1 (b) of Article 76:
3. A Tribunal may not order a Party to pay punitive damages. Article 93 1. Any arbitral award rendered pursuant to Article 92 shall be final, and binding on the disputing parties in respect of the particular case. 2. Subject to the applicable revision, annulment or set aside procedures, a disputing party shall abide by and comply with an award without delay. 3. If a disputing Party fails to abide by or comply with a final award, the Party whose investor was a party to the arbitration may have recourse to the dispute settlement procedure under Chapter 15. In this event, the requesting Party may seek:
Article 94 1. A claim is submitted to arbitration under this Section when:
The disputing parties shall otherwise agree in relation to subparagraph 1 (d) of Article 79. 2. Delivery of notice and other documents on a Party shall be made:
3. In an arbitration under this Section, a Party shall not assert, as a defense, counterclaim, right of setoff or otherwise, that the disputing investor has received or will receive, pursuant to an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages. 4. Either disputing party may make available to the public in a timely manner all documents, including an award, submitted to, or issued by, a Tribunal established under this Section, subject to redaction of:
Article 95 1. Without prejudice to the applicability or non- applicability of the dispute settlement provisions of this Section or of Chapter 15 to other actions taken by a Party pursuant to Article 169, a decision by a Party to prohibit or restrict the acquisition of an investment in its Area by an investor of the other Party, or its investment, pursuant to that Article shall not be subject to such provisions. 2. In the case of Mexico, the dispute settlement provisions of this Section and of Chapter 15 shall not apply to a decision by the National Commission on Foreign Investment (“Comision Nacional de Inversiones Extranjeras”) following a review pursuant to Annex 6, reservation 3 set out in the Schedule of Mexico, with respect to whether or not to permit an acquisition that is subject to review. Section 3 Article 96 For the purposes of this Chapter:
Chapter 8 Article 97 1. This Chapter shall apply to measures adopted or maintained by a Party affecting cross-border trade in services by service suppliers of the other Party, including measures respecting:
2. This Chapter shall not apply to:
Article 98 1. Each Party shall accord to services and service suppliers of the other Party treatment no less favorable than that it accords, in like circumstances, to its own services and service suppliers.
2. The treatment accorded by a Party under paragraph 1 above means, with respect to a local government in the case of Japan, and with respect to a state in the case of Mexico, treatment no less favorable than the most favorable treatment accorded, in like circumstances, by that local government or state to services and service suppliers of the Party of which it forms a part. Article 99 Each Party shall accord to services and service suppliers of the other Party treatment no less favorable than that it accords, in like circumstances, to services and service suppliers of any non-Party.
Article 100 Neither Party shall require a service supplier of the other Party to establish or maintain a representative office or any form of enterprise, or to be resident, in its Area as a condition for the cross-border supply of a service. Article 101 1. Articles 98, 99 and 100 shall not apply to:
2. Each Party shall set out in its Schedule to Annex 6, within 6 months of the date of entry into force of this Agreement, any existing non-conforming measure maintained by a state or prefecture referred to in subparagraphs 1(b)(i)(AA) and 1(b)(ii)(AA) above, and shall notify thereof the other Party by a diplomatic note. 3. Articles 98, 99 and 100 shall not apply to any measure that a Party adopts or maintains with respect to sectors, subsectors or activities, as set out in its Schedule to Annex 7. Article 102 To the maximum extent possible, each Party shall notify the other Party of any new measure that the Party considers might materially affect the implementation and operation of this Chapter and of Annexes 6 and 7. Article 103 1. For the purposes of the effective implementation and operation of this Article, a Sub-Committee on Cross-Border Trade in Services (hereinafter referred to in this Article as “the Sub-Committee”) shall be established pursuant to Article 165. 2. The functions of the Sub-Committee shall be:
Article 104 1. With a view to ensuring that any measure adopted or maintained by a Party relating to the licensing, certification, or technical standards of service suppliers of the other Party does not constitute an unnecessary barrier to cross-border trade in services, each Party shall endeavor to ensure that such measure:
2. Where a Party recognizes, unilaterally or by agreement, education, experience, licenses or certifications obtained in a non-Party, nothing in Article 99 shall be construed to require the Party to accord such recognition to education, experience, licenses or certifications obtained in the other Party. Article 105 1. A Party may deny the benefits of this Chapter to a service supplier of the other Party where the Party establishes that the service is being supplied by an enterprise that is owned or controlled by persons of a non- Party, and that the denying Party:
2. Subject to prior notification and consultation, a Party may deny the benefits of this Chapter to a service supplier of the other Party where the Party establishes that the service is being supplied by an enterprise that is owned or controlled by persons of a non-Party and that has no substantial business activities in the Area of that other Party. Article 106 For the purposes of this Chapter:
Chapter 9 Article 107 1. This Chapter shall apply to measures adopted or maintained by a Party affecting:
2. This Chapter shall not apply to measures pursuant to immigration laws and regulations. 3. Nothing in this Chapter shall be construed to prevent a Party, including its public entities, from exclusively conducting or providing in its Area:
Article 108 The Parties shall be bound by the terms and conditions that each Party is committed to under the Organisation for Economic Cooperation and Development Code of Liberalisation of Capital Movements, as may be amended, and the GATS, including the Understanding on Commitments in Financial Services, and under other international agreements to which both Parties are parties.
Article 109 The dispute settlement procedure provided for in Chapter 15 shall not apply to this Chapter. Article 110 Notwithstanding the provisions of this Chapter, Chapter 7 and Chapter 8, a Party shall not be prevented from adopting or maintaining measures for prudential reasons with respect to financial services, including for the protection of investors, depositors, policy holders, policy claimants or persons to whom a fiduciary duty is owed by a financial institution or a cross-border financial service supplier, or to ensure the soundness, integrity and stability of a Party’s financial system. Article 111 The provisions of Chapters 7 and 8 shall not apply to measures referred to in paragraph 1 of Article 107. Article 112 For the purposes of this Chapter:
Chapter 10
Article 113 1. This Chapter reflects the preferential trading relationship between the Parties, the desirability of facilitating entry and temporary stay on a reciprocal basis and of establishing transparent criteria and procedures for entry and temporary stay, and the need to ensure border security and to protect the domestic labor force and permanent employment in either Party. 2. Each Party shall apply its measures relating to the provisions of this Chapter in accordance with paragraph 1 above, and in particular, shall apply expeditiously those measures so as to avoid unduly impairing or delaying trade in goods or services or conduct of investment activities under this Agreement. Article 114 1. This Chapter shall apply to measures affecting the entry and temporary stay of nationals of a Party who enter into the other Party for business purposes. 2. This Chapter shall not apply to measures affecting nationals seeking access to the employment market of the Parties, nor shall it apply to measures regarding nationality or citizenship, or residence or employment on a permanent basis. 3. This Chapter shall not prevent a Party from applying measures to regulate the entry of nationals of the other Party into, or their temporary stay in, the former Party, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to the other Party under the terms of the categories in Annex 10.
Article 115 1. Each Party shall grant entry and temporary stay to nationals of the other Party in accordance with this Chapter including the terms of the categories in Annex 10. 2. Each Party shall ensure that fees charged by its competent authorities for processing applications for entry and temporary stay of nationals of the other Party for business purposes have regard to the administrative costs involved. Article 116 1. Further to Article 160, each Party shall:
2. From the entry into force of this Agreement, each Party shall, to the extent possible, collect, maintain and make available to the other Party, data respecting the granting of entry and temporary stay under this Chapter to nationals of the other Party. Article 117 1. For the purposes of the effective implementation and operation of this Chapter, a Sub-Committee on Entry and Temporary Stay (hereinafter referred to in this Article as “the Sub-Committee”) shall be established pursuant to Article 165. 2. The functions of the Sub-Committee shall be:
Article 118 1. Notwithstanding the provisions of Article 152, a Party may not request consultations with the other Party regarding refusal to grant entry and temporary stay under this Chapter unless:
2. The remedies referred to in subparagraph 1(b) above shall be deemed to be exhausted if a final determination in the matter has not been issued by the competent authority of a Party within one year after the date of the institution of an administrative remedy, and the failure to issue a determination is not attributable to delay caused by the nationals concerned. Chapter 11 Article 119 1. This Chapter shall apply to any measures adopted or maintained by a Party relating to government procurement:
2. Paragraph 1 above is subject to the General Notes set out in Annex 16. 3. This Chapter shall apply to government procurement by any contractual means, including through such methods as purchase or as lease, rental or hire purchase, with or without an option to buy, including any combination of goods and services. 4. Subject to paragraph 5 below, where a contract to be awarded by an entity is not covered by this Chapter, this Chapter shall not be construed to cover any good or service component of that contract. 5. Neither Party shall prepare, design or otherwise structure any government procurement contract in order to avoid the obligations of this Chapter. Article 120 1. With respect to any measures regarding government procurement covered by this Chapter, each Party shall provide immediately and unconditionally to the goods, services and suppliers of the other Party offering goods or services of the other Party, treatment no less favorable than that accorded to domestic goods, services and suppliers. 2. With respect to any measures regarding government procurement covered by this Chapter, each Party shall ensure:
3. The provisions of paragraphs 1 and 2 above shall not apply to customs duties and charges of any kind imposed on or in connection with importation, the method of levying such duties and charges, other import regulations and formalities, and measures affecting trade in services other than measures regarding government procurement covered by this Chapter. Article 121 1. A Party shall not apply rules of origin to goods or services imported or supplied for purposes of government procurement covered by this Chapter from the other Party which are different from the rules of origin applied by the former Party in the normal course of trade.
2. Subject to prior notification and consultation, a Party may deny the benefits of this Chapter to a service supplier of the other Party where the denying Party establishes that the service is being provided by an enterprise that is owned or controlled by persons of a non- Party and that has no substantial business activities in the Area of any Party. 3. A Party may deny to an enterprise of the other Party the benefits of this Chapter if nationals of a non-Party own or control the enterprise and:
Article 122 1. Each Party shall apply the respective rules and procedures set up in accordance with the provisions, as may be amended, specified in Annex 18. 2. Where a Party considers that a modification to rules procedures of the other Party corresponding to an amendment of the provisions specified in Annex 18 affects access to the other Party’s government procurement market considerably, the former Party can request consultations in order to maintain equivalence between the treatments under the rules and procedures of the Parties. If no satisfactory solution can be found, the former Party may have recourse to the dispute settlement procedure under Chapter 15, with a view to maintaining an equivalent level of access to the other Party’s government procurement market. 3. The Party concerned shall notify the other Party of any modification to the rules and procedures referred to in paragraph 1 above no later than 30 days prior to the date of entry into force of such modification. 4. If, in tendering procedures, an entity allows tenders to be submitted in several languages, one of those languages shall be English. 5. No entity of either Party shall make it a condition for the qualification of suppliers and for the awarding of a contract that the supplier has previously been awarded one or more contracts by an entity of that Party or that the supplier has prior work experience in the Area of that Party. Article 123 Each Party shall ensure that its entities do not, in the qualification and selection of suppliers, goods or services, in the evaluation of bids or the award of contracts, consider, seek or impose offsets, except as set out in the General Notes of Annex 16. For the purpose of this Article, offsets means conditions considered, sought or imposed by an entity prior to or in the course of its procurement process that encourage local development or improve its Party’s balance of payments accounts, by means of requirements of local content, licensing of technology, investment, counter-trade or similar requirements. Article 124 1. Each Party shall promptly publish any law, regulation, judicial decision, administrative ruling of general application, and any procedure (including standard contract clauses) regarding government procurement covered by this Chapter, in the appropriate publications listed in Annex 17 and in such a manner as to enable the other Party and suppliers to become acquainted with them. 2. The Party of an unsuccessful tenderer may seek, without prejudice to the provisions under Chapter 15, such additional information on the contract award as may be necessary to ensure that the procurement was made fairly and impartially. To this end, the Party of the procuring entity shall provide information on both the characteristics and relative advantages of the winning tender and the contract price. Normally this latter information may be disclosed by the former Party provided it exercises this right with discretion. In cases where release of this information would prejudice competition in future tenders, this information shall be confidential and not be disclosed except after consultation with and agreement of the latter Party which gave the information to the former Party. 3. Available information concerning procurement by covered entities and their individual contract awards shall be provided, upon request, to the Party requesting the information. 4. Confidential information provided to a Party which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interest of particular enterprises, public or private, or might prejudice fair competition between suppliers shall not be revealed without formal authorization from the other Party. 5. With a view to ensuring effective monitoring of government procurement covered by this Chapter, each Party shall collect statistics and provide to the other Party on a reciprocal basis an annual report which shall contain the following information to the extent that such information is available:
Article 125 1. In the event of a complaint by a supplier that there has been a breach of this Chapter in the context of a government procurement, each Party shall encourage the supplier to seek resolution of its complaint in consultation with the procuring entity. In such instances the procuring entity shall accord impartial and timely consideration to any such complaint, in a manner that is not prejudicial to obtaining corrective measures under the challenge system. 2. Each Party shall provide non-discriminatory, timely, transparent and effective procedures enabling suppliers to challenge alleged breaches of this Chapter arising in the context of government procurements in which they have, or have had, an interest. 3. Each Party shall provide its challenge procedures in writing and make them generally available. 4. Each Party shall ensure that documentation relating to all aspects of the process concerning government procurements covered by this Chapter shall be retained for 3 years. 5. The interested supplier may be required to initiate a challenge procedure and notify the procuring entity within specified time-limits from the time when the basis of the complaint is known or reasonably should have been known, but in no case within a period of less than 10 days. 6. A Party may require that a challenge procedure be initiated only after the notice of procurement has been published or, where a notice is not published, after tender documentation has been made available. Where a Party imposes such a requirement, the 10 day period described in paragraph 5 above shall begin no earlier than the date that the notice is published or the tender documentation is made available. 7. Challenges shall be heard by an impartial and independent reviewing authority with no interest in the outcome of the government procurement and the members of which are secure from external influence during the term of appointment. A reviewing authority which is not a court shall either be subject to judicial review or shall have procedures which provide that:
8. Challenge procedures shall provide for:
9. With a view to the preservation of the commercial and other interests involved, the challenge procedure shall normally be completed in a timely fashion. Article 126 1. Nothing in this Chapter shall be construed to prevent a Party from taking any action or not disclosing any information which it considers necessary for the protection of its essential security interests relating to the procurement of arms, ammunition or war materials, or to procurement indispensable for national security or for national defence purposes. 2. Provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties where the same conditions prevail, or a disguised restriction on trade between the Parties, nothing in this Chapter shall be construed to prevent a Party from imposing, enforcing or maintaining measures:
Article 127 1. For the purposes of the effective implementation and operation of this Chapter, a Sub-Committee on Government Procurement (hereinafter referred to in this Article as “the Sub-Committee”) shall be established pursuant to Article 165. 2. The functions of the Sub-Committee shall be:
3. The Parties shall cooperate, on mutually agreed terms, to increase understanding of their respective government procurement systems, with a view to maximizing for the suppliers of both Parties the access to their respective government procurement market. For this purpose, each Party shall develop and implement, within one year after the entry into force of this Agreement, concrete measures for the cooperation, which may include training and orientation programs for government personnel or interested suppliers regarding such aspects as how to identify government procurement opportunities and how to participate in the respective government procurement markets. In developing such measures, special attention should be given to small businesses in each Party. Article 128 1. A Party shall notify the other Party of its rectifications, or in exceptional cases, other modifications relating to Annexes 11, 12, 13, 14, 16 and 17 along with the information as to the likely consequences of the change for the mutually agreed coverage provided in this Chapter. If the rectifications or other modifications are of a purely formal or minor nature, notwithstanding paragraph 1 of Article 174, they shall become effective provided that no objection from the other Party has been raised within 30 days. In other cases, both Parties shall consult the proposal and any claim for compensatory adjustments with a view to maintaining a balance of rights and obligations and a comparable level of mutually agreed coverage provided in this Chapter prior to such rectification or other modification. In the event of an agreement between the Parties not being reached, the Party which has received such notification may have recourse the dispute settlement procedure under Chapter 15. ' 2. Notwithstanding any other provision of this Chapter, a Party may undertake reorganizations of its entities covered by this Chapter, including programs through which the procurement of such entities is decentralized or the corresponding government functions cease to be performed by any government entity, whether or not subject to this Chapter. In cases of reorganizations, compensation need not be proposed. Neither Party shall undertake such reorganizations or programs to avoid the obligations of this Chapter. Article 129 When government control at the federal or central government level over an entity specified in Annex 11 has been effectively eliminated, notwithstanding that the government may possess holding thereof or appoint member of the board of directors thereto, this Chapter shall no longer apply to that entity. A Party shall notify the other Party of the name of such entity before elimination of government control or as soon thereafter as possible. Article 130 1. The Joint Committee may make recommendations to the Parties to adopt appropriate measures to enhance the conditions for effective access to a Party’s covered government procurement or, as the case may be, to adjust a Party’s coverage so that such conditions for effective access are maintained on an equitable basis. 2. In the event that after the entry into force of this Agreement a Party offers a non-Party specified in paragraph 3 below additional advantages of access to its government procurement market beyond what the other Party has been provided with under this Chapter, the former Party shall consent to enter into negotiations with the other Party with a view to extending these advantages to the other Party on a reciprocal basis. 3. A non-Party referred to in paragraph 2 above shall be, in the case of Japan, a Party to the Agreement on Government Procurement in Annex 4 to the WTO Agreement, as may be amended, (hereinafter referred to as “the GPA”) or a party to an existing Economic Partnership Agreement with Japan and in the case of Mexico, a party to the North American Free Trade Agreement, as may be amended, (hereinafter referred to as “the NAFTA”) or the European Communities. Chapter 12 Article 131 Each Party shall, in accordance with its applicable laws and regulations, take measures which it considers appropriate against anticompetitive activities, in order to facilitate trade and investment flows between the Parties and the efficient functioning of its market. Article 132 1. The Parties shall, in accordance with their respective laws and regulations, cooperate in the field of controlling anticompetitive activities. 2. The details and procedures of cooperation under this Article shall be specified in an implementing agreement. Article 133 Each Party shall apply its competition laws and regulations in a manner which does not discriminate between persons in like circumstances on the basis of their nationality. Article 134 Each Party shall implement administrative and judicial procedures in a fair manner to control anticompetitive activities, pursuant to its relevant laws and regulations. Article 135 Article 164 and the dispute settlement procedure provided for in Chapter 15 shall not apply to this Chapter. Chapter 13 Article 136 The Parties, confirming their interest in creating a more favorable business environment with a view to promoting trade and investment activities by their private enterprises, shall from time to time have consultations in order to address issues concerning the improvement of the business environment in the Parties. Article 137 1. For the purposes of addressing issues concerning the improvement of the business environment, a Committee for the Improvement of the Business Environment (hereinafter referred to in this Article as “the Committee”) shall be established. 2. The Committee:
3. The Committee:
Article 138
Chapter 14 Article 139 1. The Parties shall cooperate in promoting trade and investment activities by private enterprises of the Parties, recognizing that the joint efforts of the Parties to facilitate exchange and collaboration between private enterprises will act as a catalyst to further promote trade and investment between the Parties. Such cooperation between the Parties includes:
2. For the purposes of the effective implementation and operation of this Article, a Sub-Committee on Cooperation in the Field of Trade and Investment Promotion (hereinafter referred to in this Article as “the Sub-Committee”) shall be established pursuant to Article 165. 3. The functions of the Sub-Committee shall be:
Article 140 The Parties shall cooperate in promoting the development of supporting industries of both Parties with a view to improving the business environment and to promoting bilateral trade and investment. Such cooperation includes encouraging appropriate entities to:
Article 141 The Parties shall cooperate in promoting the development of small and medium enterprises of both Parties (hereinafter referred to in this Article as “SMEs”) in order to maintain the dynamism of their respective economies and promote favorable environment for bilateral trade and investment. Such cooperation may include:
Article 142 1. The Parties, recognizing that science and technology will contribute to the continued expansion of their respective economies in the medium and long term, shall develop and promote cooperative activities between the Governments of the Parties for peaceful purposes in the field of science and technology on the basis of equality and mutual benefit. 2. Forms of the cooperative activities under this Article may include:
3. Scientific and technological information of a non- proprietary nature arising from the cooperative activities under this Article may be made available to the public by the Government of either Party. 4. In accordance with the applicable laws and regulations of the Parties and with relevant international agreements to which the Parties are parties, the Parties shall ensure the adequate and effective protection, and give due consideration to the distribution, of intellectual property rights or other rights of a proprietary nature resulting from the cooperative activities under this Article. The Parties shall consult for this purpose as necessary. 5. The implementation of this Article shall be subject to the availability of appropriated funds and the applicable laws and regulations of each Party. 6. Costs of the cooperative activities under this Article shall be borne in such manner as may be mutually agreed. 7. Implementing arrangements setting forth the details and procedures of the cooperative activities under this Article may be made between the government agencies of the Parties. Article 143 The Parties, recognizing that sustainable economic growth and prosperity largely depend on people’s knowledge and skills, in order to raise the productivity and competitiveness of private enterprises of either Party, shall develop cooperation between the Governments of the Parties in the field of technical and vocational education and training. Such cooperation may include:
Article 144 The Parties, recognizing the growing importance of intellectual property (hereinafter referred to in this Article as “IP”) as a factor of economic competitiveness in the knowledge-based economy, and of IP protection in this new environment, shall develop their cooperation in the field of IP. Such cooperation may include the exchange of information on:
Article 145 1. The Parties, recognizing that the development in the field of agriculture in both Parties is of mutual interest and of economic and social importance for the rational and sustainable use of natural resources, shall cooperate in the field of agriculture. Such cooperation may include:
2. For the purposes of the effective implementation and operation of this Article, a Sub-Committee on Cooperation in the Field of Agriculture (hereinafter referred to in this Article as “the Sub-Committee”) shall be established pursuant to Article 165. 3. The functions of the Sub-Committee shall be:
Article 146 1. The Parties, recognizing that tourism will contribute to the enhancement of mutual understanding between them and that tourism is an important industry for their economies, shall cooperate to promote and develop tourism in the Parties. Such cooperation may include:
2. For the purposes of the effective implementation and operation of this Article, a Sub-Committee on Cooperation in the Field of Tourism (hereinafter referred to in this Article as “the Sub-Committee”) shall be established pursuant to Article 165. 3. The functions of the Sub-Committee shall be:
Article 147 1. The Parties, recognizing the need for environmental preservation and improvement to promote sound and sustainable development, shall cooperate in the field of environment. Cooperative activities under this Article may include:
2. Implementing arrangements setting forth the details and procedures of cooperative activities under this Article may be made between the government agencies of the Parties. Article 148 The dispute settlement procedure provided for in Chapter 15 shall not apply to this Chapter. Article 149 1. The Agreement between the Government of Japan and the Government of the United Mexican States concerning Cooperation in the Field of Tourism signed in Tokyo, on November 1, 1978 shall expire upon the date of entry into force of this Agreement. 2. It is confirmed by both Parties that nothing in this Chapter prejudices the rights and obligations of the Parties under the Agreement on Technical Cooperation between the Government of Japan and the Government of the United Mexican States signed in Tokyo, on December 2, 1986, as may be amended. Chapter 15 Article 150 Except as otherwise provided for in this Agreement, this Chapter shall apply with respect to the settlement of all disputes between the Parties regarding the interpretation or application of this Agreement. Article 151 1. Nothing in this Chapter shall prejudice any rights of the Parties to have recourse to dispute settlement procedures available under any other international agreement to which both Parties are parties. 2. Notwithstanding paragraph 1 above, once a dispute settlement procedure has been initiated under this Chapter or under any other international agreement to which both Parties are parties with respect to a particular dispute, that procedure shall be used to the exclusion of any other procedure for that particular dispute. However, this does not apply if substantially separate and distinct rights or obligations under different international agreements are in dispute. 3. For the purposes of paragraph 2 above, a dispute settlement procedure under this Chapter shall be deemed to be initiated by a Party’s request for the establishment of an arbitral tribunal pursuant to paragraph 1 of Article 153. 4. For the purposes of paragraph 2 above, a dispute settlement procedure under the WTO Agreement shall be deemed to be initiated by a Party’s request for the establishment of a panel pursuant to Article 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes in Annex 2 to the WTO Agreement, as may be amended. Article 152 1. Each Party may request in writing consultations with the other Party regarding any matter on the interpretation or application of this Agreement. 2. When a Party requests consultations pursuant to paragraph 1 above, the other Party shall reply to the request and enter into consultations in good faith within 30 days after the date of receipt of the request, with a view to a prompt and satisfactory resolution of the matter. In a case of consultations regarding perishable goods, the requested Party shall enter into consultations within 15 days after the date of receipt of the request. Article 153 1. The complaining Party that requested consultations under Article 152 above may request in writing the establishment of an arbitral tribunal to the Party complained against:
provided that the complaining Party considers that any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired as a result of the failure of the Party complained against to carry out its obligations, or as a result of the application by the Party complained against of measures which are in conflict with the obligations of that Party, under this Agreement. 2. Any request for the establishment of an arbitral tribunal pursuant to this Article shall identify:
3. The arbitral tribunal shall comprise 3 arbitrators. 4. Each Party shall, within 30 days after the date of receipt of the request for the establishment of an arbitral tribunal, appoint one arbitrator who may be its national and propose up to 3 candidates to serve as the third arbitrator who shall be the chair of the arbitral tribunal. The third arbitrator shall not be a national of either Party, nor have his or her usual place of residence in either Party, nor be employed by either Party. 5. The Parties shall agree on and appoint the third arbitrator within 45 days after the date of receipt of the request for the establishment of an arbitral tribunal, taking into account the candidates proposed pursuant to paragraph 4 above. 6. If a Party has not appointed one arbitrator pursuant to paragraph 4 above or if the Parties fail to agree on and appoint the third arbitrator pursuant to paragraph 5 above, such arbitrator or such third arbitrator shall be chosen by lot within further 7 days from the candidates proposed pursuant to paragraph 4 above. 7. The date of the establishment of an arbitral tribunal shall be the date on which the chair is appointed. 8. Unless the Parties otherwise agree within 20 days from the date of receipt of the request for the establishment of the arbitral tribunal, the terms of reference of such arbitral tribunal shall be:
9. The Parties shall promptly deliver the terms of reference pursuant to paragraph 8 above to the arbitral tribunal. 10. If an arbitrator dies, withdraws or is removed, a replacement shall be appointed within 30 days in accordance with the appointment procedure provided for in paragraphs 4 to 6 above, which shall be applied, respectively, mutatis mutandis . In such a case, any time period applicable to the arbitral tribunal proceeding shall be suspended for a period beginning on the date the arbitrator dies, withdraws or is removed and ending on the date the replacement is appointed. Article 154 1. The arbitral tribunal shall meet in closed session. 2. The deliberations of the arbitral tribunal, the documents submitted to it and the draft award referred to in paragraph 4 below shall be kept confidential. 3. Nothing in this Chapter shall preclude a Party from disclosing statements of its own position to the public. Each Party shall treat as confidential, information submitted by the other Party to the arbitral tribunal which that other Party has designated as confidential. A Party shall also, upon request of the other Party, provide a non- confidential summary of the information contained in its written submissions that could be disclosed to the public. 4. The arbitral tribunal shall, within 90 days after the of its establishment, submit to the Parties its draft award, including both descriptive part and its findings and conclusions, for the purposes of enabling the Parties to review precise aspects of the draft award. When the arbitral tribunal considers that it cannot submit to the Parties its draft award within the aforementioned 90 day period, it may extend that period with the consent of the Parties. However, in no case should the period from the establishment of the arbitral tribunal to the submission of the draft award to the Parties exceed 150 days. A Party may submit comments in writing to the arbitral tribunal on the draft award within 15 days after the date of the submission of the draft award. 5. The arbitral tribunal shall issue its award within 30 days after the date of the submission of the draft award. 6. In the case that the matters referred to the arbitral tribunal are those concerning perishable goods, the arbitral tribunal shall make every effort to issue its award to the Parties within 90 days after the date of its establishment. In no case should it do so later than 120 days. 7. The arbitral tribunal shall take its decisions including its award by majority vote. 8. The award of the arbitral tribunal shall be final and binding on the Parties. Article 155 While the proceedings of the arbitral tribunal are in progress, the Parties may agree to terminate the proceedings at any time by jointly so notifying the chair of the arbitral tribunal. Article 156 1. The Party complained against shall promptly comply with the award of the arbitral tribunal issued pursuant to Article 154. 2. The Party complained against shall, within 20 days after the date of issuance of the award, notify the complaining Party of the period of time for implementing the award. If the complaining Party considers the period of time notified to be unacceptable, it may refer the matter to an arbitral tribunal. 3. If the Party complained against fails to comply with the award within the implementation period as determined pursuant to paragraph 2 above, the Party complained against shall no later than the expiry of that implementation period enter into consultations with the complaining Party, with a view to developing mutually acceptable compensation. If no satisfactory compensation has been agreed within 20 days after the date of expiry of that implementation period, the complaining Party may notify the Party complained against that it intends to suspend the application to the Party complained against of concessions or other obligations under this Agreement. 4. If the complaining Party considers that measures taken by the Party complained against for implementing the award do not comply with the award within the implementation period as determined pursuant to paragraph 2 above, it may refer the matter to an arbitral tribunal. 5. If the arbitral tribunal to which the matter is referred pursuant to paragraph 4 above confirms that the Party complained against has failed to comply with the award within the implementation period as determined pursuant to paragraph 2 above, the complaining Party may, within 30 days after the date of such confirmation by the arbitral tribunal, notify the Party complained against that it intends to suspend the application to the Party complained against of concessions or other obligations under this Agreement. 6. Suspension of the application of concessions or other obligations under paragraphs 3 and 5 above may only be implemented at least 30 days after the date of the notification in accordance with those paragraphs. Such suspension shall:
7. If the Party complained against considers that the requirements for the suspension of the application to it of concessions or other obligations under this Agreement by the complaining Party set out in paragraph 3, 5 or 6 above have not been met, it may refer the matter to an arbitral tribunal. 8. The arbitral tribunal that is established for the purposes of this Article shall, wherever possible, have as its arbitrators, the arbitrators to the original arbitral tribunal. If this is not possible, then the arbitrators to the arbitral tribunal that is established for the purposes of this Article shall be appointed pursuant to paragraphs 4 to 6 of Article 153. Unless the Parties agree to a different period, such arbitral tribunal shall issue its award within 30 days after the date when the matter is referred to it. The award of the arbitral tribunal established under this Article shall be binding on the Parties. Article 157 Any time period provided for in this Chapter may be modified by mutual consent of the Parties. Article 158 Unless the Parties agree otherwise, the expenses of the arbitral tribunal, including the remuneration of its arbitrators, shall be borne by the Parties in equal shares. Article 159 Unless the Parties agree otherwise, the details and procedures for the arbitral tribunal provided for in this Chapter shall be in accordance with the Rules of Procedure to be adopted by the Joint Committee within the first year of the date of entry into force of this Agreement. Chapter 16 Article 160 1. Each Party shall promptly publish, or otherwise make publicly available, its laws, regulations, administrative procedures and administrative rulings and judicial decisions of general application as well as international agreements to which the Party is a party, respecting any matter covered by this Agreement. 2. Each Party shall, upon request by the other Party, promptly respond to specific questions from, and provide information to, the other Party with respect to matters referred to in paragraph 1 above. 3. Nothing in this Article shall prejudice as to whether a measure adopted by a Party is consistent with this Agreement. Article 161 The Government of each Party shall, in accordance with the domestic laws and regulations of the Party, endeavor to maintain public comment procedures, except in cases of emergency, inter alia, a real or imminent danger to the health, safety, or welfare of persons, to the preservation of the environment or to the conservation of exhaustible natural resources, in order to:
Article 162 1. Where measures are to be adopted which pertain to or affect the implementation and operation of this Agreement, the competent authorities of a Party shall, in accordance with the domestic laws and regulations of the Party:
2. Where measures are to be adopted by the competent authorities of a Party which pertain to or affect the implementation and operation of this Agreement and which impose obligations on or restrict rights of a person, such competent authorities shall, prior to any final decision, when time, the nature of the measures and public interest permit and in accordance with the domestic laws and regulations of the Party, provide that person with:
Article 163 1. Each Party shall maintain judicial or administrative tribunals or procedures for the purpose of prompt review and, where warranted, correction of administrative actions regarding matters covered by this Agreement. Such tribunals or procedures shall be impartial and independent of the authorities entrusted with the administrative enforcement. 2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceeding are provided with the right to:
3. Each Party shall ensure, subject to appeal or further review as provided in its domestic laws and regulations, that such decisions are implemented by the competent authorities of the Party with respect to the administrative action at issue. Article 164 1. Unless otherwise provided for in this Agreement, neither Party shall be required by this Agreement to provide confidential information, the disclosure of which would impede the enforcement of its domestic laws and regulations, including the law protecting the information relating to personal privacy or the financial affairs or accounts of individual customers of financial institutions, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private. 2. Each Party shall, in accordance with its domestic laws and regulations, maintain the confidentiality of information provided in confidence by the other Party pursuant to this Agreement. Article 165 1. The Joint Committee composed of representatives of the Governments of the Parties shall be established under this Agreement. 2. The functions of the Joint Committee shall be:
3. The Joint Committee may:
4. The following Sub-Committees shall be established on the date of entry into force of this Agreement:
Other Sub-Committees may be established as the Parties may agree. 5. The Joint Committee shall establish its rules and procedures. 6. The Joint Committee shall meet alternately in Japan and Mexico at the request of either Party. Article 166 Each Party shall designate a contact point to facilitate communications between the Parties on any matter relating to this Agreement. Article 167 1. The Parties reaffirm their rights and obligations under the WTO Agreement. 2. Nothing in Chapters 3, 7 and 8 shall be construed to prevent either Party from taking any necessary action as may be authorized by Article 22 of the Understanding on Rules and Procedures Governing the Settlement of Disputes in Annex 2 to the WTO Agreement, as may be amended. 3. The Convention on Commerce between Japan and the United Mexican States signed at Tokyo on January 30, 1969 shall expire upon the date of entry into force of this Agreement. Chapter 17 Article 168 1. For the purposes of Chapters 3, 4, 5, and 6, Article XX of the GATT 1994 is incorporated into and made part of this Agreement, mutatis mutandis . 2. For the purposes of Chapters 8 and 10, paragraphs (a), (b) and (c) of Article XIV of the GATS are incorporated into and made part of this Agreement, mutatis mutandis . Article 169 For the purposes of Chapters 3, 4, 5, 6, 7, 8, 10 and 16, nothing in this Agreement shall be construed:
Article 170 1. Except as otherwise provided for in this Article, nothing in this Agreement shall apply to taxation measures. 2. Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention. In the event of any inconsistency between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency.
3. Notwithstanding paragraph 2 above:
4.
Article 171 1. For the purposes of Chapter 3:
2. For the purposes of Chapter 8:
Chapter 18 Article 172 The table of contents and the headings of the Chapters, Sections and Articles of this Agreement are inserted for convenience of reference only and shall not affect the interpretation of this Agreement. Article 173 The Annexes and Notes to this Agreement shall constitute an integral part of this Agreement. Article 174 1. Unless otherwise provided for in this Agreement, this Agreement may be amended by agreement between the Parties. Such amendment shall be approved by the Parties in accordance with their respective legal procedures. Such amendment shall enter into force on the thirtieth day after the date of exchange of diplomatic notes indicating such approval. 2. Any amendment to this Agreement shall constitute an integral part of this Agreement. Article 175 This Agreement shall enter into force on the thirtieth day after the date on which the Government of Japan and the Government of Mexico exchange diplomatic notes informing each other that their respective legal procedures necessary for entry into force of this Agreement have been completed. It shall remain in force unless terminated as provided for in Article 176 below. Article 176 Either Party may terminate this Agreement by giving one year’s advance notice in writing to the other Party. Article 177 1. The texts of this Agreement in the Japanese, Spanish and English languages shall be equally authentic. In case of differences of interpretation, the English text shall prevail. 2. Notwithstanding paragraph 1 above:
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement. DONE at Mexico City, on this seventeenth day of September, 2004, in duplicate. |
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