australia india ch 3

3

Regulation of International Trade in Goods and Services

IntroductionTrade relations between India and Australia are estimated to have commenced

in the eighteenth century. Currently, Australia is India’s eighth largest trading partner and India is Australia’s ? fth largest.1 India’s ranking among Australia’s export destinations has risen from twelfth to fourth in the period 2003-04 to 2009-10.2 Australia’s trade in goods and services with India was A$ 21 billion in 2010-11 with Indian exports of goods amounting to A$ 2.08 billion.3 Australia’s exports of goods to India have risen by an annual average of nearly 24% for the past 5 years, and India’s export of goods to Australia are estimated to have increased by an annual average of 12.3% in the same period.4

This paper seeks to discuss the regulatory framework for trade in each of the countries. Both countries have a democratic form of governance and, as a legacy of being British colonies, follow the common law legal system. Both India and Australia are among the twenty-three founding members of the General Agreement on Tariffs and Trade in 1948 and were active participants in the subsequent negotiating rounds culminating in the formation of the World Trade Organization in 1995. They continue to be active participants in the WTO. The regulatory framework governing trade in both jurisdictions is therefore greatly in? uenced by WTO rules and follows a similar approach in respect of trade regulations governing trade remedies.

46

* Brett Williams is the principal of Williams Trade Law, Sydney and an external lecturer in trade law at Australian National University and the University of Sydney. His areas of specialisation are international trade regulation, especially the law of the World Trade Organization, and competition law.

** R.V. Anuradha is a Partner at Clarus Law Associates, New Delhi. Her areas of specialisation are international trade law, international investment law, and climate change law and policy.

1. Ministry of External Affairs, Government of India, “India-Australia Relations”, available at <http://mea.gov.in/Portal/ForeignRelation/India-Australia_Relations.pdf>.

2. Ibid.

3. The High Commission of India in Australia, “Bilateral Economic Relations”, available at <www.hcindia-au.org/bilateral-economic-relation.htm>.

4. Ibid.

Regulation of International Trade in Goods and Services 47

There are however variations in the degree of state control and regulation of various aspects of economic activity. With regard to Australia, there has been a considerable liberalisation of various aspects of the economy since the 1970s.5 Until that time, Australia had substantial import barriers, signi? cant Government ownership of commercial activities and considerable regulation at state Government level impeding the development of a national market. Since then, Australia has liberalised trade, through commitments in the Tokyo Round and Uruguay Round and also some bilateral and unilateral liberalisation. In 1983, Australia adopted a ? oating exchange rate and substantially deregulated the ? nancial system and opened it to foreign competition. From the 1980s onward, the federal and state Governments have divested themselves of various commercial operations. From 1995, national competition policy has been implemented, removing restrictive state legislation and moving in the direction of national markets in diverse areas like electricity and gas, rail and road transport, and regulation of some professions.6

Like most developing countries, India’s regulatory framework was characterised with a command and control regime by the Government over most economic activities. Since the 1990s however, economic liberalisation has gradually occurred with dismantling of regulatory controls and simpli? cation of procedures. With the coming into force of the WTO Agreements in 1995, several laws have also been amended and new laws enacted to ensure WTO compliance.

In addition to the in? uence of the WTO membership of both countries, one must also consider the role of bilateral and regional agreements. Of primary importance are the existing bilateral treaties between India and Australia. Australia and India have had a Bilateral Double Taxation Avoidance Agreement since 1991, with that agreement having been amended in 2013.7 There is also a Bilateral Investment Promotion and Protection Agreement which came into force on 4 May 2000.8

Australia has entered into a number of bilateral or regional trade agreements, including FTAs with Singapore, the United States of America, Thailand and New Zealand. Most recent are the South Korea – Australia FTA in force in

5. For a short summary see: Saul Eslake, An Introduction to the Australian Economy (4th Edn. 2007) available from the website of the ANZ Bank at <www.anz.com/corporate/publications-guides-studies/speeches-articles-presentations>. Other useful references include Rodney Maddox and Ian W McLean (eds), The Australian Economy in the Long Run (Cambridge University Press, 1987); Industry Commission 1998, Microeconomic Reforms in Australia: A Compendium from the 1970s to 1997, Research Paper, (AGPS, Canberra, January 1998); and the annual publication by the Australian Productivity Commission, Trade and Assistance Review which is made available at <www.pc.gov.au/annual-reports/trade-assistance>.

6. See the website of the National Competition Council <www.ncc.gov.au>, which includes a website entitled the National Competition Policy website at <http://ncp.ncc.gov.au>.

7. Protocol amending the Agreement between the Government of Australia and the Government of the Republic of India for the avoidance of double taxation and the prevention of ? scal evasion with respect to taxes on income (New Delhi, 16 December 2011, in force 2 April 2013 [2013] ATS 22).

8. Agreement between the Government of Australia and the Government of the Republic of India on the Promotion and Protection of Investments (New Delhi, 26 February 1999, in force 4 May 2000 [2000] ATS 14).

48 Regulation of International Trade in Goods and Services

December 2014 and the Japan Australia Economic Partnership Agreement in force in January 2015. Several others are under negotiation. A list of Australia’s bilateral and regional trade agreements is set out in Schedule I of this chapter. Most of the free trade agreements contain provisions relating to protection of investments. Australia has also entered into bilateral Investment Protection Agreements with several countries including the one with India mentioned above. Other bilateral investment agreements include those with the People’s Republic of China (1988), Hong Kong (1993), Czech Republic (1994), Argentina (1997), Chile (1999) and Egypt (2002).9

Bilateral trade negotiation is also a focus for India. India is a key member of the South Asian Association for Regional Cooperation (“SAARC”). India’s approach in the recent past has been to conclude comprehensive economic cooperation/partnership agreements (“CECAs” or “CEPAs”) which cover trade in goods, services and investment. The India-Singapore CECA in 2005 set the trend and has been followed by CEPAs with Korea, Japan, and Malaysia. A list of India’s bilateral and regional trade agreements is set out in Schedule 2 of this chapter. India is in the process of negotiating free trade agreements with Australia, EFTA, EU, Canada and New Zealand. India also has entered into over 80 bilateral investment protection agreements with countries worldwide.

India and Australia are currently engaged in negotiations for a Comprehensive Economic Cooperation Agreement (“CECA”). Negotiations commenced in 2001 soon after the release of a feasibility study. It is envisaged that a CECA would cover trade in goods, trade in services, investment, and some other issues including intellectual property.10 If concluded, a CECA would provide greater market access for exporters of goods and services in both countries to the markets of the other countries and also facilitate greater investment ? ows.

Of particular signi? cance to the future economic relationship between India and Australia are the evolving relationships of each country with ASEAN. In 2003, India and ASEAN entered into the ASEAN – India Framework Agreement on Comprehensive Economic Cooperation which contemplates formation of a Free Trade Area covering goods, services and investment. Under that Framework Agreement, a Trade in Goods Agreement came into force on 1 January 2010.11An India – ASEAN investment agreement was signed on 12 November 2014 and an India – ASEAN Agreement on Trade in Services was signed on 13 November 2014. These will come into force after India and at least 4 ASEAN countries

9. The agreement with People’s Republic of China is in [1988] ATS 14, Hong Kong in [1993] ATS 30, Czech Republic in [1994] ATS 18, Argentina in [1997] ATS 4, Chile in [1999] ATS 37, and Egypt in [2002] ATS 19. A complete list can be obtained from the DFAT treaty database at <www.dfat.gov.au/treaties>.

10. “India-Australia Joint Feasibility Study Report”, May 2010, available at <http://commerce.nic.in/trade/Final_JSG_Report_as_printed_and_released_4thMay_2010.pdf> and at <www.dfat.gov.au/fta/aifta/>. See the reports on the ? rst ? ve rounds of negotiations on the website of the Australian Department of Foreign Affairs and Trade at <www.dfat.gov.au/fta/aifta/>.

11. Agreement on Trade in Goods under the Framework Agreement on Comprehensive Economic Cooperation between the Republic of India and the Association of South East Asian Nations (ASEAN)Bangkok 13 August 2009.


notify they have completed the necessary internal requirements.12 Australia is a party to the ASEAN – Australia – New Zealand Free Trade Agreement of 2009 came into force on 10 January 2012. This agreement covers trade in goods, trade in services like intellectual property and investment including provision for Investor-State dispute settlement. Both Australia and India are engaged in a negotiation with the ASEAN member countries and all of its Dialogue Partners, that is, the countries with which ASEAN has an FTA, to create a Regional Comprehensive Economic Partnership (known as “RCEP”). The objective of the RCEP negotiation is to create an agreement between the ten ASEAN member countries, Australia, China, India, Japan, New Zealand and South Korea which would cover trade in goods, services, intellectual property and investments and certain other aspects of economic integration. The sixth round of RCEP negotiations was hosted by India in New Delhi on 1 to 5 December 2014.13 Recently, the ninth round of RCEP negotiations was held at Myanmar. The closure of the Trans-Paci? c Partnership Agreement is expected to put pressure on RCEP negotiators to conclude the agreement soon. Covering half of the world’s population, the RCEP would be a major feature of the world trading system and would for both Australia and India be a de? ning feature of their international economic integration in the future.

The aim of this chapter is to provide an overview of the regulatory framework governing trade in both the countries and to compare contrasting elements of the regulatory framework in this area. Part A will discuss trade regulation impacting trade in goods, services and investment in Australia and Part B will discuss the regulatory framework in India.

PART A

AUSTRALIA

A1 Overview of the Regulatory Framework in AustraliaAn overview of the Australian Constitution and federal structure is provided

in Chapter 1. As discussed there, the federal Government has power to legislate with respect to international and interstate trade and commerce and State laws are invalid if they interfere with the freedom of trade between States. The federal Government also has power to legislate under the external affairs power. In general, most law governing private relations between private contracting parties continues to be governed by State law but public regulation of international transactions derives from federal statutes. This affects the way that Australia implements treaty obligations. In general, when the federal Government becomes a party to a treaty which affects State law, then the federal Government would generally cooperate with the States to implement the treaty and would generally

12. See Agreement on Trade in Services under the Framework Agreement on Comprehensive Economic Cooperation between the Association of Southeast Asian Nations and the Republic of India, Nay Pyi Taw, Myanmar, 13 November 2014, not yet in force; and Agreement on Investment under the Framework Agreement on Comprehensive Economic Cooperation between the Association of Southeast Asian Nations and the Republic of India, Nay Pyi Taw, Myanmar, 12 November 2014, not yet in force. The texts of the two agreements are available at <www.asean.org/asean/externalrelations/india>.

13. See the Australian Department of Foreign Affairs and trade website page for news of the RCEP, available at <www.dfat.gov.au/fta/rcep/>.


not resort to passing a federal law and relying on the Constitution’s inconsistency rule to override State law.

To provide some relevant illustrations:

• International contracts for sale of goods are governed by state law. To implement the Vienna Convention on the International Sale of Goods,each Australian state passed a statute to apply the rules of the Vienna Convention to contracts for the international sale of goods.

• Customs duties and other regulations of imports or exports apply under federal statutes, principally the Customs Act, 1901 and related federal legislation. Agreements affecting trade of goods have to be implemented in federal law.

• Law relating to supply of services is covered by some federal laws, where there is a speci? c power in the Constitution as is the case for banking, insurance, telecommunications and postal services. However, statues in individual states govern a range of other services, including regulation of professions, and regulation of retail services.

A2 Trade in GoodsThe primary statute regulating imports and customs duties is the Customs Act,

1901 (Cth). The Customs Act operates in conjunction with other Commonwealth statutes dealing with speci? c areas of customs law.14

Customs duties are provided for in the Customs Tariff Act, 1995. Section 16 provides for the amount of duties. This provision is broken up into several subsections dealing with the duties on imports from different sources. The application of customs duties involves 3 steps: (1) classi? cation of goods, (2) valuation of goods; and (3) application of rules of origin.

A2.1 Classi? cation of GoodsSchedule 3 of the Act provides a comprehensive classi? cation of goods

that is expressed to be based upon the classi? cation system contained in the International Convention on the Harmonized Commodity Description and Coding System, 1983 (known as the harmonized system).

The third column of Schedule 3 contains the rate of customs duty applicable to each listed product. Almost all of the prescribed duties are described in the form of ad valorem rates (there are some speci? c duties, included in the category of alcoholic beverages).

A2.2 Valuation of Goods Once the classi? cation is determined under Schedule 3 of the Customs Tariff

Act, then for ad valorem duties, the value of the goods must be determined under the Customs Act, 1901. The relevant provisions are in Division 2 of Part VIII of the Customs Act containing sections 154 to 161L.

14. Other Commonwealth Statues include: Customs Administration Act, 1985; Customs Securities (Penalties) Act, 1981; Customs Undertakings (Penalties) Act 1981; Commerce (Trade Descriptions) Act, 1905; Customs Tariff Act 1995; Customs Tariff (Anti-Dumping) Act, 1975; Export Control Act, 1982; Import Processing Charges Acts of 1997 and 2001; and Imported Food Control Act, 1992. This list of statutes is contained in [18.95] of Michael Pryles, Jeff Waincymer and Martin Davies, International Trade Law – Commentary and Materials (Lawbook Co., 2nd Edn., 2004).


These provisions conform to the WTO Agreement on Customs Valuation in setting out the methods which may be used to determine the value of goods. The transaction value is to be used if possible.15 The determination of transaction value begins with identifying the sales transaction and the price for the transaction. Adjustments must be made to isolate out any other charges for items other than the goods themselves.

If transaction value cannot be used, then it is permissible to use other methods in order, the value of identical goods, the value of similar goods, and ultimately a deductive method (a top down method starting with the domestic price and deducting items to arrive at the import price) or computed value (a bottom up method adding components of value to arrive at the import price).

A2.3 Rates of Duty Applicable Depending on the Origin of GoodsThere is a generally applicable rate listed in Schedule 3 of the Customs

Tariff Act. There are speci? c provisions relating to imports originating from certain speci? ed countries. Unless one of the special provisions applies, then the applicable rate is the rate speci? ed in Schedule 3. This leads to the unusual outcome under Australian law that imports from non-WTO Member countries are accorded the same rate of customs duties as any WTO Member country (that is not entitled to a preferential rate).

The rates applying under the Customs Tariff Act are low. The WTO Tariff Pro? les publication indicates that the average applied rate in 2011 was 2.8%. Vast portions of the classi? cation have zero duty rates. In a few areas, including motor vehicles and clothing, textiles and footwear products (“TCF products”) some rates are as high as 10% but most of these are due to drop to 5% or lower by 2015.16 The rates bound under WTO commitments are low but higher than the applied rates. The average bound rate is 10% ad valorem and 97% of customs lines are bound. The products with higher bindings include several areas of industrial machinery and parts, motor vehicles (the bound rate on new passenger vehicles is 40%) and clothing, textile and footwear (many have bound rates between 23% and 40% and a few as high as 55%). In summary, from the point of view of Indian exports, import duties are low and are bound against any signi? cant increase by WTO bindings but there are a relatively small range of products where WTO bindings would allow Australia to apply substantial increases in applied rates above the existing low applied rates.

There are special provisions for preferential customs duty rates or zero rates for goods originating in certain countries. The question of whether a particular preferential rate applies is determined by reference to de? nitions setting out when an imported product originates in a particular country or (in some provisions) whether an imported product is the produce or manufacture of a particular country. These de? nitions setting out the rules of origin are contained in Part

15. Customs Act, 1901 section 161(1) de? nes the transaction value of the goods as “the sum of the adjusted price in the import sales transaction and of their price related costs to the extent that those costs have not been taken into account in determining the price of the goods.”

16. See Schedule 3 of the Customs Act.


VIII of the Customs Act 1901 with rules origin relating to one way preferences in favour of Developing countries, LDCs and Paci? c Forum Countries17 and preferences for goods from Singapore, the USA, Thailand, New Zealand, Chile and the ASEAN-Australia-NZ area.18

These rules of origin limit the scope for goods exported from these countries which incorporate inputs from India to be accorded the preferential zero or low customs duties. However, these preferential rates need to be viewed in the context of the overall low applied rates. Reductions to the ordinary duty rates implementing WTO Uruguay Round commitments and going beyond those commitments have reduced the signi? cance of preferential rates. As recently as 1997, just a few years before Australia began to negotiate free trade agreements, duty rates on clothing, textiles and footwear and motor vehicles and parts were largely between 20% and 35% but now they are reduced to either 5% or 10% and the legislation already provides for those set at 10% to be reduced to 5% in 2015. A second signi? cant change is that as the general level of rates has come down, Australia has mostly phased out its Generalised System of Preferences which used to accord a 5% preference to a long list of developing countries. Duties to those Developing Countries did not go up but the margin of 5% has been narrowed as general MFN rates came down, in many cases to the point where there is no remaining margin of preference. The GSP scheme is now focused on providing zero duties to goods originating in the countries on the UN’s Least Developed Country list (plus East Timor).

There are special provisions specifying the applicable customs duties on imports from each country with which Australia has a reciprocal free trade agreement. Such provisions re? ect Australia’s obligations under the various bilateral and regional trade agreements. For imports from FTA countries, the duty is zero unless a particular product is listed in the relevant Schedules of the Act, in which case the duty will be speci? ed in such Schedule. Schedule 3 uses the notation NZ for New Zealand, PG for Papua New Guinea and SG for Singapore to indicate duties applying to imports from those countries.19 Where duties on products from the USA, Thailand, or Chile are greater than zero, the products and rates are listed in Schedules 5, 6 and 7 respectively.20 In addition for ASEAN – Australia – NZ originating goods (section 16(4)) – the duty is zero unless a particular product is listed in column 2 of Schedule 8 in which case the duty is the duty speci? ed in column 3 of Schedule 8.

There are also special provisions for countries to which Australia accords one way preferences. Re? ecting obligations under the SPARTECA agreement, the duty on imports from Paci? c Island Forum countries is zero except where a particular product is marked in Schedule 3 with the notation PIF and a non-zero rate is speci? ed.21 There are two slightly different lists of Least Developing

17. Customs Act, Division 1A of Part VIII.

18. Customs Act, Divisions 1B, 1C, 1D, 1E, 1F and 1G of Part VIII.

19. Customs Act, sections 16(1)(b), 16(1)(c) and 16(1)(j), respectively.

20. Customs Act, sections 16(1)(k), 16(1)(l) and 16(1)(m), respectively.

21. Customs Act, section 16(1)(e).


Countries for whom zero duties apply except for products marked with the notation DC in Schedule 3 accompanied by speci? cation of a non-zero rate.22 For a list of other Developing Countries including India, the ordinary rates in Schedule 3 apply except where a notation DCS indicates a preferential rate for a particular product.

A3 Restrictions on Trade other than Duties or Charges In general, Australia imposes no import quotas. The exceptions relate to

some tariff rate quotas on certain cheeses and curds (there are bound tariffs for unlimited quantities above the TQ volume).

Australia imposes import prohibitions on speci? c products to achieve certain speci? c objectives. Australia has a licensing scheme for the implementation of those import prohibitions but has no import license requirements for importation of any other products. The Customs Act, 1901 contains a power to prohibit imports and this power is exercised through the Customs (Prohibited Imports) Regulation, 1956 as amended. However, import controls are also exercised through a number of other statutes. The best available information on Australia’s import prohibitions and restrictions is the most recent noti? cation in January, 2015 to the WTO Committee on Import Licensing.23 This lists the various import controls, the statues under which they are applied and in most cases indicates a website from which further information can be obtained.

Most of the prohibitions are not contentious, such as those implementing international obligations (for example prohibitions on Kimberly diamonds, endangered species or hazardous waste) or protecting community concerns (for example, prohibitions on imports of weapons and ? rearms). The two areas that attract most attention are restrictions for quarantine or bio-safety reasons and restrictions on the basis of technical standards relating to product safety. Foods imports may be subject to both quarantine restrictions and to food safety restrictions.

A3.1 Restrictions for Quarantine or Biosafety ReasonsUnder the Quarantine Act, 1908, various controls are placed on imports of

plants, parts of plants and plant products, animals including birds, ? sh and insects, animal products, soil and some other items of concern. Importantly, that includes foodstuffs. The Quarantine Act, and regulations and proclamations under the Act are administered by the Department of Agriculture, Fisheries and Forestry (“DAFF”). Ordinarily, a single application for entry to DAFF for a permit to import animal or plant products is required (though where the importation of

22. Customs Act, section 16(1)(h) covers countries listed in Schedule I, Part 3 which includes some Paci? c Island countries not part of the Paci? c Island Forum and section 16(1)(i) covers countries listed in Schedule I, Part 2 which includes East Timor.

23. WTO, Committee on Import Licensing, “Replies to Questionnaire on Import Licensing Procedures – Noti? cation under Article 7.3 of the Agreement on Import Licensing Procedures – Australia”, G/LIC/N/3/AUS/7, 12 February 2015. This document can be obtained from the WTO website at <www.wto.org/english/tratope/implice/implice.htm>. There is also an informative table of Australia’s import restrictions in the WTO Secretariat report from the 2011 Trade Policy Review Mechanism, WT/TPR/S/244/Rev. 1, at Page 45, Table III. 4 “Main Import prohibitions, restrictions and controls 2010”.


live imports of animals and plants is also governed by Environmental Protection and Biodiversity Conservation Act, 1999, a separate application may be required to the department administering that Act). DAFF maintains a publicly accessible database of Import Conditions applicable to particular products.24 For some products, import permits are required, which cannot be granted retrospectively. For some products, import permits may not be required but treatment conditions or other conditions may apply. The system has been modi? ed a few times since 1995 in part in response to two WTO reports ? nding restrictions on salmon and on apples to be WTO inconsistent.25 The Beale Report of 2008 recommended new legislation to replace the Quarantine Act and a draft Biosecurity Bill was released for consideration in July, 2012.26

A3.2 Restrictions Relating to Technical Standards and Product SafetyThe Customs (Prohibited Imports) Regulations, 1956 as amended, made pursuant

to the Customs Act, 1901 as amended, prohibits the import of certain products deemed to be hazardous. Within the Customs (Prohibited Imports) Regulations, certain provisions prohibit items that are listed in schedules. Among the items prohibited are food containers, cosmetics, pencils, toys and other items that contain prescribed levels of certain hazardous metals.

In relation to food imports, section 8 of the Imported Food Control Act, 1992creates an offence of importing food products which pose a risk to human health or do not meet applicable standards. Section 8A creates a separate offence of dealing with food imports whose labelling does not meet applicable standards. It is critical to note that the de? nition of applicable standards refers to standards adopted by the Australia New Zealand Food Standards Council or contained in the Australia New Zealand Food Standards Code. The body responsible for setting the Code is a bi-national Government agency, Food Standards Australia New Zealand. The Code applies to all food sold in Australia whether locally produced or imported. The inspection of imported food is carried out by DAFF.

A4 Trade RemediesAustralia has detailed statutory provisions providing for antidumping duties

and countervailing duties.27 In contrast, there is no speci? c legislation providing for safeguards measures.

24. The ICON, the DAFF Import Conditions Data base, is available on the website of the Biosecurity division of DAFF at <www.daff.gov.au/biosecurity/import/icon-icd>.

25. Australia – Measures affecting Imports of Salmon, WT/DS18/R & WT/DS18/AB/R adopted 6 November 1998 and Australia – Measures affecting imports of applies from New Zealand WR/DS367/R and WT/DS367/AB/R adopted 17 December 2010.

26. See Special Report: A Review of Australia’s Quarantine and Biosecurity (Beale Review) released 18 December 2008, available at <www.daff.gov.au/about/annualreport/annual-report-2008-09/annual-report-2008-09/special-report-review-Australian-quarantine-biosecurity-bealereview>.

27. Links to the relevant legislation can be found at <www.adcommission.gov.au/reference-material/australian-legislation.asp>.


A4.1 Antidumping DutiesThe Australian law on antidumping duties, substantive and procedural,

follows closely the WTO rules on the subject.28 Therefore, the following summary leaves out many details of the rules.29

Anti-Dumping duties are imposed pursuant to a Notice issued by the Minister under the Customs Tariff (Anti-Dumping) Act, 1975.30 However, most of the provisions relating to the determination of dumping margin and causation are contained in Part XVB of the Customs Act, 1901 which runs from section 269SM to 269ZZY.31

Investigations are conducted by the Australian Anti-Dumping Commission (a body newly created on 1 July 2013 to carry out functions formerly performed by the Chief Executive Of? cer of the Australian Department of Customs and Border Security). The Commission provides a report to the Minister, who must decide whether to impose antidumping duties. Appeals may be made to the Anti-Dumping Appeals Panel (a new body taking over the function that the Trade Measures Review Of? cer performed until 2013). Decisions can also be challenged on the basis of errors of law under the Administrative Decisions (Judicial Review) Act before the Federal Court. The procedure re? ects the disciplines under the WTO Antidumping Agreement.

The substantive law also re? ects the disciplines under the WTO Agreement. Section 269TAC provides for determination of the normal value, section 269TAB for the determination of the export price and section 269TACB for the comparison of the normal value with the export price to determine the dumping margin. In line with Article 2.2 of the ADA, section 269TAC(2) provides that “the situation in the market of the country of export” may be a justi? cation for not using the ordinary sales in the exporting country to determine the normal value and resorting to a constructed cost method or third country sales method.32 In practice, in Australia, the third country sales method has not been used for some years. The Regulations require that the Commission should usually base the determination of the costs of production on the records of the exporter but

28. General Agreement on Tariffs and Trade, 1994 (“GATT”), Article VI, the Agreement on Implementation of Article VI of the GATT 1994 (“Antidumping Agreement” or “ADA”) and the Agreement on Subsidies and Countervailing Measures (“SCM Agreement”).

29. The Government makes available some helpful publications including: Australian Customs and Border Protection Service, Instructions and Guidelines (incorporating the) Dumping and Subsidy Manual August 2012, available at <www.adcommission.gov.au/reference-material/manual/default.asp> (the Anti-Dumping Commission has announced it will revise the manual in stages over 2013 and 2014); Australian Government Anti-Dumping Commission, Administration of Australia’s Antidumping System (published 1 July 2013); Understanding the Anti-Dumping Review Panel Process (published June 2013 and yet to be amended to replace references to CEO of Department of Customs and Border Security with references to Australian Anti-Dumping Commission.

30. Customs Tariff (Antidumping) Act, 1975 as amended (at time of writing, the last amendment was No. 94 of 2013, in force 28 June 2013).

31. Customs Act, 1901 as amended (at time of writing the last amendment was No. 103 of 2013, in force 29 June 2013).

32. Regarding the resort to the ‘market situation’ rule, the Government has published a 2008 “Discussion Paper, Market situation – section 269TAC(2)(a)(ii) – Guidance – Claims of Government In? uence”, available at <www.adcommission.gov.au/reference-material/Other Publications. asp>.


can use other methods if the records do not “re? ect competitive market costs associated with the production or manufacture of like goods” (slightly deviating from the wording of the similar phrase in ADA Article 2.2.1.1 “reasonably re? ect the costs associated with the production and sale of the product under consideration”).33

The provisions on determination of causation of injury re? ect the WTO rules. Section 269TAE sets out a non-mandatory and non-exhaustive list of factors to be taken into account in determining whether the imports are causing injury to a domestic industry. Although the list is non-mandatory, the authorities always consider the matters the consideration of which is mandatory under ADA Article 3.4. A Ministerial Direction in June, 2012 directed dumped imports could be found to be causing material injury to the domestic industry some speci? c situations including where the industry has been weakened by other events, where the market share of the domestic industry is still growing but at a lower rate and where the industry has not suffered a loss of pro? ts but has lost some market share in a growing market.34

It is worth noting that the Customs Tariff (Antidumping) Act provides that the Minister, having received the report from the Anti-Dumping Commission, maymake a determination to apply an antidumping duty. The Minister is not obliged to follow the recommendation in the Commission’s report. Therefore, there is no statutory limit upon the Minister taking into account any other matter and relying on other matters to form the view that no antidumping duty should be applied. The Minister could consider the impact on direct or downstream purchasers of the product or even consider the overall impact of the dumping or the imposition of Anti-Dumping measure upon the economic welfare of Australia. The actual practice has been more limited. Occasionally, parties may make submissions about discretionary matters like the impact on downstream purchases and the authorities have tended to offer a fairly cursory summary in the report to the Minister. In May 2010, the Australian Productivity Commission recommended that the Act be amended to mandate that the Minister be required to consider a form of public interest test.35 The Government response in June, 2010 rejected the proposal on the ground that the Minister already had a discretion broad enough to embrace any public interest consideration.36

A4.2 Countervailing Duties The same two statutes also provide for counter-vailing duties with the notice

to impose a duty being made under the Customs Tariff (Antidumping) Act but

33. Customs (International Obligations) Regulation 2015 (Select Legislative Instrument No. 32, 2015), reg 43(2).

34. Australian Customs and Border Protection Service, “Australian Customs Dumping Notice No. 2012/24 – New Ministerial Direction on Material Injury”, 1 June 2012, available at <www.adcommission.gov.au/reference-material/ministerial-directions.asp>.

35. Australian Productivity Commission Inquiry Report No. 48, “Australia’s Antidumping and Countervailing System” (18 December 2009), available at <www.adcommission.gov.au/reference-material/OtherPublications.asp>.

36. Australian Government, “Streamlining Australia’s anti-dumping system – An effective anti-dumping and countervailing system for Australia” June 2010, available at <www.adcommission.gov.au/reference-material/OtherPublications.asp>.


all the provisions regarding identi? cation and quanti? cation of subsidies and regarding whether subsidised imports are causing material injury are contained in the Customs Act.

The Customs Act follows closely the provisions of the WTO SCM Agreement. Section 269T provides for the two aspects of the de? nition of a subsidy: ? nancial contribution and bene? t. In line with WTO Law, only speci? c subsidies are counter-vailable and section 269TAAC provides for determination of speci? city. The provisions on determination of injury, causation and non-attribution are the same as those applying to Anti-Dumping. The procedural steps are the same.

Australia has imposed counter-vailing duties in only a small number of cases, it being a much less commonly used remedy than Anti-Dumping duties. As an illustration of that, one can observe that the monthly status report on 31 July 2013 from the Australian Anti-Dumping Commission indicates that there were ADD being imposed on 20 products but CVD were being imposed on only 4.37 Most of the CVD investigations have involved alleged subsidies by the Chinese Government but CVDs investigations have also dealt with alleged USA subsides on biofuels and alleged French subsidies on brandy.

A relatively recent development of signi? cance was the revision of the practice regarding determinations of whether state owned enterprises constitute Government bodies for the purposes of the de? nition of subsidy. Following the WTO Appellate Body report in USA – De? nitive Anti-Dumping and Counter-vailing Duties on Certain Products from China (generally referred to as case DS379),38 the Government issued Anti-Dumping Notice 2011/27 indicating that it would follow the approach of the Appellate Body of making a broader assessment of state owned enterprises rather than simply judge them according to whether they are majority owned by the Government.39

A practical development around the same time was that the Government created a public register of subsidies of foreign Governments that have been subject to an Australian investigation.40 This follows the practice of the US which publishes a similar register. It may reduce the work for local businesses in applying for a CVD.

A4.3 Safeguard MeasuresAustralia has no speci? c legislation dealing with safeguards measures so

there is no administrative track under which a domestic industry can petition for a safeguard measure. When the Government did a safeguards investigation for the ? rst time in 1998, it did so by using the procedure under Parts 2 and 3

37. See Australian Government Antidumping Commission, Anti-Dumping Notice No. 2013/65 “Anti-dumping and Counter-vailing Actions – Status Report” at 31 July 2013.

38. United States – De? nitive Anti-Dumping and Counter-vailing Duties on Certain Products from China WT/DS379/R report of the Panel and WT/DS279/AB/R report of the Appellate Body both adopted by the WTO Dispute Settlement Body on 25 March 2011.

39. Australian Government, Australian Customs and Border Protection Service, Australian Customs Dumping Notice No. 2011/27, Response to WTO Appellate Body Finding, DS379 – Public Bodies, 2 August 2011.

40. The Subsidies Register is available at <www.adcommission.gov.au/reference-material/subsidies-register.asp> (viewed 20 February 2015).


of the Productivity Commission Act, 1998 under which the Government can refer a matter to the Productivity Commission to conduct an inquiry on speci? ed terms of reference.41 The day before referring the matter for inquiry, the Government issued a notice to the Commission containing general directions as to the conduct of any inquiry in respect of safeguard action. This is the gazetted notice dated 25 June 1998 entitled, “Establishment of General Procedures for Inquiries by the Productivity Commission into whether Safeguard Action is Warranted under the Agreement Establishing the World Trade Organization42 These were amended after the coming into force of the Australia-United States Free Trade Agreement.43 The Government has only utilised this procedure to conduct safeguard investigations on a few occasions: pigmeat in 1998, pigmeat in 2007,44 processed fruit products and processed tomato products both in 2013.45

A5 Trade in ServicesIn general, Australia allows foreigners to supply services in Australia by

obtaining a license in the same way that a national has to obtain a licence. Apart from a few speci? c situations, there are no restrictions on the number of foreign service suppliers in any sector, and no rules which restrain foreign service suppliers from wholly owning their own business. Similarly, there are few rules which depart from national treatment.

There are some important laws applying across all sectors that may affect provision of services: regulation of foreign investment, regulation of entry of natural persons, and regulation of ownership of land. There are also some speci? c laws affecting a few speci? c sectors and I will mention some of those.

A5.1 Laws Affecting Foreign Service Suppliers making ‘Investments’ Foreign service suppliers establishing a commercial presence in Australia

by acquiring existing businesses (whether assets or shares in a corporation) or who have already established a commercial presence in Australia and acquire some additional assets (or shares in a corporation) may fall within the scope of the Foreign Acquisitions and Takeovers Act, 1975.46 The Act applies to transactions

41. See the referral document headed “Terms of Reference” dated 26 June 1998 from Peter Costello, Treasurer to the Productivity Commission at p. iv of Productivity Commission, Pig and Pigmeat Industries: Safeguard Action against Imports, Inquiry Report, Report No. 3, 11 November 1998 (Ausinfo, Canberra), available at <www.pc.gov.au/inquiries/completed/pig-safeguards-1999/report>.

42. Commonwealth of Australia, Gazette, No. S 297, Thursday, 25 June 1998.

43. Commonwealth of Australia, Gazette, No. GN 39, 5 October 2005 “Amendment of general procedures for inquiries by the Productivity Commission into whether safeguard action is warranted under the Agreement establishing the World Trade Organization”.

44. Productivity Commission, Safeguards Inquiry into the Import of Pigmeat (2008), Accelerated Report, Report No. 42, 14 December 2007 (Canberra), available at <www.pc.gov.au/inquiries/completed/pig-safeguards-2008/accelerated-report>.

45. For canned fruit, see the Accelerated Report released 26 September 2013 and the Final Report released 20 December 2013 on the website of the Productivity Commission at <www.pc.gov.au/projects/inquiry/fruit-safeguards> and for processed tomatoes, see the Accelerated Report released on 26 September 2013 and the Final Report released 20 December 2013 on the website of the Productivity Commission at <www.pc.gov.au/projects/inquiry/tomato-safeguards>.

46. Foreign Acquisitions and Takeovers Act, 1975 as amended (up to Act No. 180 of 2012). Regulations under the Act are in the Foreign Acquisitions and Takeovers Regulations 1989 (Statutory Rules No. of 1989 as amended up to SLI 2012 No 309).


(including acquisition of an interest in an offshore corporation) resulting in acquisition of a substantial interest, meaning a 15% interest, in an Australian business or corporation or assets47 or of any interest at all in Australian urban land.48 The Act gives the Treasurer power to prohibit certain foreign investments if the Treasurer is satis? ed that the foreign investment would be contrary to the national interest.49 The Treasurer can also order divestment if the acquisition has already taken place.50 In the Regulations under the Act, certain transactions are de? ned as being exempt from the Treasurers power to prohibit investments. In practice, the Treasurer acts on the advice of the Foreign Investment Review Board and the FIRB publishes a document called “Australia’s Foreign Investment Policy” (the “Policy”) which provides guidance on the “Government’s approach to administering the Act”.

The Chapter of this Volume entitled “Regulation of Foreign Direct Investment” provides more details on the FATA, the Regulations and the Policy. That chapter addresses the way that the Regulations exempt certain transactions on the basis of monetary thresholds and explains how higher thresholds apply for certain countries. Also of critical importance is that the Act establishes a procedure for investors to give noti? cations to the Treasurer51 and that if an investor gives a notice to FIRB and the Treasurer does not issue any decision within a speci? ed period (which is 30 days if the Treasurer does not extend the period), then the Treasurer cannot decide to prohibit the investment nor can it issue a decision which imposes conditions on the investment.52

A5.2 Laws Affecting the way that Foreign Service Suppliers may use LandIn general, it is easy for foreign service suppliers to lease premises but more

dif? cult for them is to buy premises. There is no legal bar against a foreigner leasing an interest in land, other than the fact that the Foreign Acquisitions and Takeovers Act could apply to an acquisition that included acquisition of a lease having a term of more than 5 years.53

However, for acquisitions of interests in urban land (which is all land other than agricultural land), the FATA mandates a notice to FIRB and gives a power to the Treasurer to prohibit the investment regardless of how small is the value of the acquisition.54 The Policy explains how this discretion is exercised.55 The general principle is that foreign investment ought to increase the housing stock available in Australia.

47. Sections 18, 19, 20 and 21 are framed in terms of substantial interests. The term “substantial interest”, is de? ned in section 9.

48. See section 21A.

49. Foreign Acquisitions and Takeovers Act, 1975, as amended, section 18(2), 19(2), 20(2), 21(2) and 21A(2).

50. See sections 18(4), 19(4), 20(4), 21(4) and 21A(4).

53. Foreign Acquisitions and Takeovers Act, 1975, sections 12A (the de? nition of interest in urban land) and 21A (the Treasurer’s power to prohibit an acquisition of an interest in Australian urban land).

54. Foreign Acquisitions and Takeovers Act, 1975, section 21A (Treasurer’s power to prohibit acquisition of an interest in Australian urban land) and section 26A (the compulsory noti? cation of acquisitions of Australian urban land).

55. See Australia’s Foreign Investment Policy (2013 version) under section headed “Further Information about Buying Real Estate”, 9-11.


A5.3 Law Affecting the way that Foreign Service Suppliers may Arrange Entry and Stay of Natural Persons Although Australia has reasonably liberal laws allowing foreigners to supply

services in Australia, if a natural person wishes to enter Australia for any reason, whether to look for business, to set-up a place of business or to actually provide services in Australia themselves or as an employee of a foreign service supplier, they must obtain a Visa under the Australian Migration Act.

The Migration Act provides for a number of categories and the categories most relevant to foreign services suppliers are:56

Service Sellers VisasIf a foreign service supplier wishes to send an employee to Australia in

order to establish agreements with Australians to provide services on behalf of the foreign service supplier, then the employee can apply for a “service sellers Visa”. The applicant must not be employed by an Australian business, and may not sell services directly to customers. Even though it applies to only a fairly narrow situation, the Visa is quite ? exible: there is no need for the employer to sponsor the Visa, the Visa is usually granted for 6 months and during the 6 months there is no limit on the number of times the person may enter and leave Australia.57

Visitors’ Visas for Short Stay Business VisaBusiness visitors wishing to enter Australia for the purpose of attending

business meetings or negotiations may apply for a Visitors Visa (class 600). Australia has recently established the single sub-class 600 Visa category to replace the old system which had separate short term Visa categories for short term tourist Visas and for short term business visitor Visas. A person applying for a short term visit as a business visitor must be outside Australia when making the application and when the decision is made. The Visa holder may not work in Australia and may not supply goods or services in Australia. The Visas are for 3 months and may be granted for single entry or multiple entry.58

Employer Sponsored Temporary Long Stay VisaA foreign business with a commercial presence in Australia wishing to

transfer an employee to Australia for a longer period can apply for an Employer Sponsored Temporary Long Stay (Class 457) Visa. This kind of visa is only available if the position falls within a list of eligible occupations and both the employer and the employee must satisfy certain criteria. The employer must be approved as a sponsor, must nominate the intended position, must pay a salary above a threshold for the particular occupation, must bear certain costs and cooperate with some monitoring requirements. The employee must satisfy criteria relating to the occupation and must not work for anyone other than their sponsor.59

56. This summary draws on the material contained in DLA Piper, Doing Business in Australia, An Overview of Australia’s Laws and Regulations (Published by DLA Piper, April 2013).

57. Ibid., 46.

58. Ibid., 45; Australian Department of Immigration Website, available at <www.immi.gov.au/visas/visitor/600/>.

59. DLA Piper, above n 56, 46.


A5.4 Laws Affecting Entry of Foreign Suppliers into some Speci? c Selected Service Sectors There are speci? c statues that would affect foreign service suppliers wishing

to supply services in some speci? c sectors including the following.

Financial Services: In addition to the possibility of having to seek FIRB approval, foreign suppliers wishing to supply ? nancial services must comply with the Banking Act, 1959 (Cth) and the Financial Sector (Shareholdings) Act, 1998 (Cth). These statues do not limit the number of suppliers, whether foreign or local, operating in any market for ? nancial services, nor do they impose any kind of economic needs test upon the grant of licences. The Banking Act gives power to the Australian Prudential Regulation Authority (“APRA”) to grant licences and that authority publishes guidelines.60 APRA assesses applications according the criteria published in the Guidelines including whether capital is adequate, whether prudential capital ratios are met, and that the shareholders are ? t and proper persons and the internal management of the entity meets standard for risk management, audit and ? nancial control.61 The Financial Sector (Shareholdings) Act, 1998 prohibits anyone from holding more than 15% in a ? nancial services company without seeking approval from the Treasurer who can refuse the application on national interest grounds. Regulation of the insurance industry is done on a similar basis with APRA granting licences on published criteria without any limits on the number of suppliers. The exceptions are that in the ? elds of worker’s compensation and compulsory third party personal injury motor vehicle insurance, there are some laws in the various Australian States which limit licences to a small number of licenced providers, and in the health insurance sector, licenses are issued by a speci? c health insurance regulator rather than by APRA.

Telecommunications Services: Foreigners are able to obtain licences to supply telecommunications services, whether basic telecommunications services carrying voice, fax or data over local or interstate distances or to or from outside Australia or any value added telecommunications services. The Telecommunications Act, 1997 (Cth) requires anyone owning telecommunications infrastructure, whether related to land lines or radio-communications, and wishing to use that infrastructure or allow that infrastructure to be used to carry telecommunications must hold a carrier licence unless the person holds a ‘nominated carrier declaration’ (“NCD”) in relation to that facility.62 Applications for licences or NCDs must be made to the Australian Communications and Media Authority (“ACMA”).63 The ACMA will satisfy itself that the applicant can meet various requirements including the capacity to comply with interconnection rules and consumer standards. There is no limit on the number of licences or the number of foreign holders of

60. Banking Act, 1959 as amended, section 9. The APRA, Guidelines – APRA ADI Authorisation Guidelines (April 2008), available at <www.apra.gov.au/adi/Pages/adi-authorisation-guidelines.aspx>.

61. See the criteria set out in more detail in paragraphs 1 to 32 of the APRA ADI Authorisation Guidelines.

62. Alasdair Grant and David Howarth (eds), Australian Telecommunications Regulation (CCH, 4th Edn., 2012) at Chapter 1, para 3 to 3.3.2.

63. Telecommunications Act, 1997 (Cth) part 3.


licenses but if an operator seeks to build new facilities, it is necessary to obtain a Facility Installation Permit and while there is no explicit economic needs test, one of the conditions is that the intended facility would be part of a network of national signi? cance, already built or likely to be approved. The same rules on interconnection and access to network infrastructure apply to nationals and foreigners. For persons supplying a service of carrying telecommunications or supplying a content service but not owning the facilities, the Act sets a different system. Service providers are not required to obtain individual licences. Instead, providers must comply with service provider rules set out in the Telecommunications Act, 1997 (Cth) which cover a variety of matters including number portability, billing information and consumer service.64 There is no limit on the number of licences that can be issued to locals or foreigners. With two exceptions, there is no restriction on the size or proportion of foreign equity in a services supplier nor any other distinctions made in the rules between Australian suppliers and foreign suppliers. Foreigners and national are subject to the same rules relating to technical regulation, consumer services, universal service obligations and other matters. However, there are two situations where foreigners cannot invest. One relates to shareholdings in the former monopoly provider, Telstra Limited. An individual foreign investor may not hold more than 5% of the shares and the aggregate foreign ownership may not exceed 35%. Secondly, the Government is building a fast speed national broadband cable network which will be owned by a Government owned corporation, National Broadband Corporation. Part 7 of the Telecommunications Act, 1997 (Cth) prohibits any service provider from supplying a superfast telecommunications service using any network other than the National Broadband Network.65

Distribution Services: There are no special limitations on foreign investors participating in distribution services like retailing, wholesaling or related services like warehousing. Operators may need to meet various laws, for example, planning and zoning laws affecting the location of premises, labour laws and occupational health and safety laws affecting the employment of staff, but these apply equally to foreigners and locals and do not limit the number of foreign suppliers.

Shipping Services: If a foreign supplier of shipping wishes to register a ship in Australia, the ship must be majority Australian owned. Foreign operators can operate under their own ? ag but their services may not include cabotage services: the carriage of passengers or freight from one Australian port to another.

Airports: The Airports Act, 1996 (Cth) places some ceilings on the proportion of equity that foreigners may hold in some Australian airports.

Professional Services: In relation to supply of professional services, foreigners are required to meet the same licensing and other regulations that apply to Australian nationals. However, the complicating factor is that regulation of professions and trade is almost entirely governed by laws of State and territory Governments rather than by Federal laws and the progress towards creating

64. Telecommunications Act, 1997 (Cth) part 4.

65. Telecommunications Act, 1997 (Cth) as amended, part 7.


national licencing schemes is uneven. There are just a few professional services where the relevant service can only be supplied by permanent residents or citizens: patent attorneys under the Patents Act, 1990, and migration agents under the Migration Act, 1958. A ? rm providing audit services must have at least one partner who is a registered public auditor.

Legal Services: Legal services have been substantially liberalised over the last 15 years in parallel with movements towards a national legal profession. Foreigners wishing to practice in the ? eld of Australian law still have to qualify as an Australian lawyer by obtaining a full practising certi? cate in an Australian jurisdiction. However, in all Australian jurisdictions foreigners are allowed to practice the law of another country where they are entitled to practice (‘foreign law’) or to practice international law without obtaining a full practising certi? cate. In all Australian jurisdictions except South Australia, there is a procedure for registration as foreign lawyers and registered foreign lawyers are allowed to employ Australian lawyers or to enter into commercial associations sharing pro? ts with Australian lawyers. A person quali? ed to practice in another jurisdiction can also practice foreign or international law on a ? y in ? y out basis for up to 90 days per year without having to obtain a full practicing certi? cate or even to register as a foreign lawyer.

PART B

INDIA

B1 Overview of the Regulatory Framework in India The structure of the Government in India is a federal one. The division of

legislative powers between Central and State Governments is provided under the Seventh Schedule to the Constitution of India. The Parliament at the Central level has exclusive power to legislate on issues related to international trade, international treaties, intellectual property, foreign investment, and on some taxes. As in the case of Australia, state laws which affect federal matters are subject to the inconsistency rule under the Constitution. The Supreme Court of India has held that provisions of any international treaty entered into by the Government of India would become applicable in India, unless there is a direct con? ict with a law made by Parliament.

The main legislation regulating foreign trade in India is the Foreign Trade (Development and Regulation) Act, 1992 (the “FTDRA”). The FTDRA provides for the development and regulation of foreign trade by facilitating imports into, and augmenting exports from India and for related matters. The FTDRA governs export and import of both goods and services.

Pursuant to its powers under the FTDRA, the Central Government has constituted the Director General of Foreign Trade (“DGFT”) for the purpose of implementing the Act, and the formulation and implementation of the export-import policy of the Government. The Export-Import Policy (or “EXIM Policy”) is referred to as the Foreign Trade Policy (“FTP”), and sets out the core objectives, identi? es key strategies, spells out focus initiatives, outlines export incentives, and also addresses issues concerning institutional support including simpli? cation of procedures relating to export activities.


The FTP is typically announced for a ? ve year period, and is updated through ‘annual supplements’ every year on the 31st of March and the modi? cations, improvements and new schemes become effective from the 1st of April each year. An overarching theme across the FTPs for the years 2004-09 and 2009-2014 has been rationalisation of procedures. This trend has continued in the FTP for 2015-2020. A few of the salient features of FTP 2015-20 include introduction of schemes for incentivising exports of goods and services through duty credits that can be used to pay customs duty while importing other goods and services, and branding and quality control assurances for enhancing exports of processed and packaged agricultural and food items. Additionally, the policy also emphasises promotion of environment-friendly products through tax exemptions. Entrepreneurial training programmes for enhancing trade under the “Skills India” Initiative is another feature of the recent FTP.

The following sections will cover the speci? c elements of the regulatory framework governing trade in goods and services.

B2 Trade in GoodsIndia’s WTO bound tariff levels are signi? cantly higher than the applied rates,

especially for many agricultural products. These gaps allow the Government to modify tariff rates in response to domestic and international market conditions. For instance, bound rate for iron ore is 25%, but the applied rate is 2.5%; in the case of dairy products the applied rate is 10% less than the bound rate (at 30 and 40 percent respectively).

India’s bound and applied tariff rates are higher than that of Australia. For example, data compiled by the WTO as of 2012 indicates that Australia’s simple average bound tariff is 10% (on Agricultural 3.5% on non-agricultural 11%); whereas India’s simple average bound tariff is 48.6% (on Agricultural 113.1%, on non-agricultural 34.5%). Australia’s simple average applied MFN tariff is 2.7%, whereas India’s simple average applied MFN tariff is 13.7%.66

In general, there has been a gradual decrease in tariff duties across both agricultural and non-agricultural tariff lines in India. The percentage of duty-free lines is approximately 3.2% of the total tariff lines. There has also been signi? cant tariff liberalisation under the CEPA and CECA negotiations.

There is no requirement to obtain any kind of permit or license for most imported goods in India. These fall under the open general license category. However, the Government has the power to require obtaining of a permit or license where considered necessary. Import licenses are required currently in respect of certain copper alloys, zinc waste and scrap, radio and television transmitters, communication jamming equipment. With regard to exports, the shipping bill is required to be ? led with customs authorities.

The Importer Exporter Code (“IEC”) is a unique 10 digit code issued to Indian companies by the Director General of Foreign Trade as a necessary prerequisite to any import or export undertaken by a person or entity, as

66. World Trade Organization, “Australia: Tariffs and Imports - Summary and Duty Ranges”, available at <http://stat.wto.org/TariffPro? le/WSDBTariffPFView aspx?Language=E& Country=AU>; World Trade Organization, “India: Tariffs and Imports - Summary and Duty Ranges”, available at <http://stat.wto.org/TariffPro? le/WSDBTariffPFView.aspx?Language=E&Country=IN>.


provided under the FTDRA. An application for the grant of an IEC number is required to be made to the Directorate General of Foreign Trade (“DGFT”).

B2.1 Classi? cation of GoodsThe Customs Act, 1962 read with the Customs Tariff Act, 1975 provide the legal

framework for the levy and collection of customs duty in India. The contours of this legal framework are similar to that in Australia. Like the regulatory framework in Australia, India’s Customs Tariff Act follows the Harmonized System of Nomenclature (“HSN”) system of classi? cation of goods pursuant to the International Convention on Harmonized System. The HSN under the International Convention is amended periodically in a review cycle every four to six years, taking note of the trade ? ow, technological progress, and Member countries are required to make corresponding alignments in their HS Codes. In India, the HSN was brought into effect on 1 January 1988, after which it has been amended in 1992, 1996, 2002, 2007 and 2012.

The Customs Tariff Act contains a set of interpretative rules which are applicable when the classi? cation of a product cannot be determined in accordance with Section/Chapter Notes, which are based on the interpretative notes issued by the World Customs Organization. The judiciary in India has also evolved well-established principles of classi? cation. The most favored test is the common parlance test which utilises the trade terminology used in markets to classify goods. Additionally, where such trade terminology is not available or applicable, the ordinary meaning is to be preferred over the scienti? c or technical meaning.67

B2.3 Valuation of GoodsValuation is determined under the Customs Valuation (Determination of

Price of Imported Goods) Rules, 1988. Under these Rules (as under the laws in Australia), the value of imported goods is the transaction value. This is de? ned as “the price actually paid or payable for the goods when sold for export to India”, which should include costs and services incurred by the buyer as well as the cost of inputs, royalties, licence fees, etc., that are not included in the price paid. If the transaction value cannot be determined, then the value is based on: the transaction value of identical goods sold for export to India and imported at or about the same time; the transaction value of similar goods; deductive value; computed value; or the residual method.68 India also uses reference prices to value some agricultural imports. Under the Customs Act, 1962, the Government also has the power to ? x tariff values for any class of imported goods or export goods, having regard to the trend of value of such or like goods. The duty in such cases is chargeable with reference to such tariff value. This power is used very rarely.

The National Import Data Base (“NIDB”) provides a reliable tool for comparison of declared values with contemporaneous import prices. The NIDB is made available on a weekly basis to all Customs stations.69

67. C.C.E. v. Krishna Carbon Paper Co., AIR 1988 SC 2223. 68. Rules 5-8 of the Customs Valuation (Determination of Price of Imported Goods) Rules,

1988. 69. Directorate General of Valuation, Central Board of Excise and Customs, Government of India,

available at <www.dov.gov.in>.


B2.3 Rates of Duty Applicable Depending on the Origin of GoodsThe First Schedule to the Customs Tariff Act speci? es two rates of basic

customs duties – standard and preferential. The Customs Tariff Act under section 5(1) empowers the Central Government to notify any country or territory to be a “preferential area”. Pursuant to these powers, the Central Government has issued rules relating to determination of origin of goods for determination of preferential tariff under speci? c free trade agreements entered into by India.70

In the case of imports from such noti? ed preferential country or territory, the preferential rate of duty would be leviable. To avail of the preferential duty, an importer would need to adhere to the requirements of the rules and submit evidence regarding the origin of the goods, in the absence of which the ordinary basic customs duty is applicable.

B2.4 Duty ExemptionThe Central Government has powers under section 25 of the Customs Act,

1962 to provide duty exemptions in the larger public interest. An applicant seeking duty exemption needs to approach the Department of Revenue of the Ministry of Finance, and substantiate the reasons for which it is seeking such exemption.

B2.5 Export DutiesThe Government imposes export duties on a few items. The Second Schedule

to the Customs Tariff Act, 1975 contains a description of goods chargeable with export duty. Export duties are currently applicable on a variety of products such as coffee, tea, certain spices (e.g., cardamom and turmeric), basmati rice, certain ferrous products, certain minerals (e.g., iron ore, manganese ore, chromium ore), and raw hides.

B3 Restrictions on Trade other than Duties and Charges

B3.1 Restrictions for Quarantine and Food SafetyLike Australia, India also has put in place a framework for quality control

and inspection of imports. The Plant Quarantine (Regulation of Import into India) Order, 2003 under the framework of the Destructive Insects and Pests Act, 1914, deals with testing and quarantine requirements in respect of imports of items such as seeds, plants, plant products, wood and timber. Permit requirements, as applicable in Australia, form the basis of these regulations. Operational guidelines for importers and exporters have been published by the Directorate of Plant Protection, Quarantine and Storage which operates under the Ministry of Agriculture.

Imports of food and food products are required to comply with the standards and regulations speci? ed under the Food Safety and Standards Act, 2006. The Food Safety and Standards Authority of India (“FSSAI”) has established a Food

70. For example, Customs Tariff (Determination of Origin of Goods under the Preferential Trade Agreement between the Governments of the Republic of India and the Republic of Korea) Rules, 2009, have been issued pursuant to the India-Korea CEPA; Customs Tariff Determination of Origin of Goods under the Preferential Trade Agreement between the Governments of Member States of the Association of Southeast Asian Nations (“ASEAN”) and the Republic of India] Rules, 2009, have been issued pursuant to the Trade in Goods Agreement between India and ASEAN.


Import Clearance System (“FICS”), the procedures of which are summarised in the FICS manual published by the FSSAI.71

B3.2 Restrictions Relating to Technical Standards and Product SafetyUnder Noti? cation No. 44 (RE-2000)/1997-2002 dated 24 November 2000,

issued under the Customs Act, 1962, Clause 6 states that:

“Import of all the products as per Appendix V to Schedule I of the ITC (HS) Classi? cations of Export and Import Items, 1997-2002, shall be subject to compliance of the mandatory Indian Quality Standards as mentioned in Column 2 of the said Annexure, which are also applicable to domestic goods. For compliance of this requirement, all manufactures/ exporters of these products to India shall be required to register themselves with Bureau of Indian Standards (BIS).”

The Bureau of Indian Standards (“BIS”) is the National Standards body functioning under the Bureau of Indian Standards Act, 1981 (“BIS Act”). The BIS Act permits product certi? cation as well as system certi? cation on the basis of conformity to speci? ed Indian Standards. The published standards fall into one of fourteen categories.72 The Indian Standards speci? ed by the BIS are voluntary in nature, unless noti? ed as mandatory by the Government. The Government has noti? ed mandatory standards in respect of speci? c products such as steel products, medical equipment, automotive accessories, diesel engines, household electrical goods and cement.

In addition to the BIS Act, product safety related issues are also addressed under sector-speci? c laws such as the Drugs and Cosmetics Act, 1940, the Food Safety and Standards Act, 2006 and the Consumer Protection Act, 1986.

B3.3 Export Quality ControlThe legal framework for quality control and pre-shipment inspection

measures for exports have been established under the Export (Quality Control and Inspection) Act 1963, under which the Export Inspection Council of India (“EIC”) carries out quality control and pre-shipment inspection to ensure minimum standards for exports of products noti? ed under the Act. This currently applies to basmati rice, black pepper, dairy, eggs, ? sh and ? sh products, honey, meat and meat products, and processed food products containing red chillies. Under the Export Policy Schedule of the Foreign Trade Policy 2009-14, pre-shipment inspection also applies to exports of canned meat products and marine species. The Wildlife Protection Act in India prohibits trade in endangered species, in adherence to the Convention on Trade in Endangered Species (“CITES”).

71. Food Safety and Standards Authority of India, “Manual on Food Clearance System”, available at <www.fssai.gov.in/Portals/0/Pdf/Import_Manual%20(17.10.13).pdf>.

72. The 14 categories of published standards include: Production and General Engineering, Civil Engineering, Chemical, Electrotechnical, Food and Agriculture, Electronics and Information Technology, Mechanical Engineering, Management and Systems, Metallurgical Engineering, Petroleum, Coal and Related Products, Transport Engineering, Textiles, Water Resources and Medical Equipment and Hospital Planning.


B4 Trade RemediesThe legal framework in India provides for the trade remedies as speci? ed

under WTO Agreements – Anti-Dumping duty, counter-vailing duty, safeguard measures. As noted above, in the case of Australia, while there are statutory provisions for anti-dumping and countervailing duties, safeguards is dealt with under the general statutory powers of the Productivity Commission. In contrast, there are speci? c authorities responsible for administration of all types of trade remedies in India, and these are discussed below.

B4.1 Anti-dumping Duty and Countervailing Duty InvestigationsSections 9, 9A, 9B and 9C of the Customs Tariff Act, 1975 were amended in

1995 pursuant to the WTO Agreements on Anti-Dumping and Anti-Subsidy counter-vailing measures. The Customs Tariff (Identi? cation, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 govern Anti-Dumping investigations. The Anti-Dumping Rules were amended in 2012 to address situations of circumvention of Anti-Dumping duties.73

The Customs Tariff (Identi? cation, Assessment and Collection of Countervailing Duty on Subsidised Articles and for Determination of Injury) Rules, 1995 govern countervailing duty investigations. The Directorate General for Anti-Dumping Duties (“DGAD”) under the Ministry of Commerce and Industry is the relevant authority for this purpose. Appeals from anti-dumping and counter-vailing duties can be made to the Customs Excise and Service Tax Appellate Tribunal (“CESTAT”). Appeals from the CESTAT can be referred to the Supreme Court of India.

India is one of the most active users of anti-dumping measures among WTO Members. The WTO Secretariat, in its trade policy review of 2011,74 noted that India had initiated 209 anti-dumping investigations against 34 trading partners between 2007 and 2011, compared with 176 initiations between 2002-2007. The products involved included chemicals and products thereof, plastics and rubber and products thereof, base metals, and textiles and clothing. India has not taken any countervailing actions so far.

Anti-Dumping duties do not apply to goods imported by a 100% export oriented units (“EOUs”) and units in free trade zones (“FTZs”) and special economic zones (“SEZs”). On the export of goods, anti-dumping duty is re-batable only by way of a special brand rate of drawback.

B4.2 Safeguard Duty InvestigationsThe provisions empowering the Central Government to impose a Safeguard

Duty are contained in section 8B of the Customs Tariff Act, 1975. The manner in which a Safeguard Duty can be imposed and the procedure required to be followed in conducting safeguard investigations are governed by the Safeguard Duty Rules. The rules conform to the WTO Agreement on Safeguards. Safeguard

73. Department of Revenue, Ministry of Finance, Government of India, Noti? cation No. 6 /2012-Customs (N.T.) (New Delhi, 19 January 2012), available at <www.cbec.gov.in/customs/cs-act/noti? cations/notfns-2012/cs-nt2012/csnt06-2012.htm>.

74. World Trade Organization, Trade Policy Review, “Report by the Secretariat: India”, WT/TPR/S/249/Rev. 1 (October 2011).


duties do not require the ? nding of unfair trade practice such as dumping or subsidy on the part of exporting ? rms but they must not discriminate between imports from different countries. Safeguard action is resorted to only if it has been established that a sudden increase in imports has caused or threatens to cause serious injury to the domestic industry.

The role of the Directorate General of Safeguards under the Ministry of Finance, Department of Revenue, has been created to conduct investigations for the imposition of Safeguard Duties as speci? ed under sections 8B and 8C of the Customs Tariff Act, 1975 and the rules made thereunder. The Director General of Safeguards is empowered and appointed to investigate the existence of a “market disruption” or “threat of market disruption” to domestic industry as a consequence of the increased imports of an article into India.75

Indian law was amended in 2012 to provide for the imposition of quantitative restrictions on imports. Section 9A of the FTDRA grants the Central Government the power to impose quantitative restrictions as a safeguard measure (an act permitted under GATT Article XIX, and the Agreement on Safeguards). This is implemented through the Safeguard Measures (Quantitative Restrictions) Rules, 2012.

B4.3 Review of Trade RemediesAs discussed earlier, Indian law on anti-dumping, counter-vailing duties and

safeguards are compliant with the WTO Agreements. Indian laws also enable parties to seek mid-term review of existing duties or restrictions on grounds of “changed circumstances”, which have been de? ned as including any change in the facts giving rise to the duty in the ? rst place – such as change in non-injurious price for domestic industry, change in domestic production patterns and change in condition of domestic industry. With regard to safeguard duties or quantitative restrictions, the law imposes an obligation on the authority to review the continued need for imposition of the safeguard duty or restriction.

B5 Trade in Services and Investment

B5.1 Law Governing Foreign InvestmentWith gradual liberalisation over the past decade, Foreign Direct Investment

(“FDI”) has been substantially liberalised in most sectors. FDI can be broadly divided into three categories: sectors where FDI is completely prohibited (Prohibited Sectors), those where it is permitted partially or fully subject to Government approval (Approval Route), and those in which it is permitted without restrictions (Automatic Route).

FDI under the automatic route is allowed in the majority of manufacturing and services sectors in India. FDI is prohibited in very limited sectors such as betting and gambling, trading in Transferable Development Rights (“TDRs”), real estate business, manufacturing of cigars, cheroots, cigarillos and cigarettes, tobacco or of tobacco substitutes, and activities/sectors not open to private sector investment such as atomic energy.76 There are no restrictions on export

75. Customs Tariff (Transitional Product Speci? c Safeguard Duty) Rules, 2002, section 4.

76. See, Chapter 4, “Regulation of Foreign Director Investment”, for further information.


of services from India. The FDI Policy is often viewed as a vehicle for rapid liberalisation across various sectors in India.

The FDI policy in India is governed by sectoral regulations, as well as federal level policy directives. These are consolidated on an annual basis in a FDI Policy announced by the Department of Industrial Policy and Promotion. The 2015 Consolidated FDI Policy heralded further liberalisation in the following key sectors:

(i) Telecommunications: The foreign investment limit was raised to 100% (with 49% under automatic route, and subsequent investments under the approval route);

(ii) Insurance: Liberalisation beyond 26% and up to 49% has been allowed subject to Government approval.

(iii) Defence: Foreign investment under government approval route was enhanced to 49% from the 26% under the previous FDI Policy of 2014.

(iv) Railway Infrastructure: This erstwhile closed sector has now been opened up for 100% foreign investment in the following railway infrastructure activities (subject to conditions speci? ed by the Government): Construction, operation and maintenance of the following: (i) suburban corridor projects through public private partnerships; (ii) high speed train projects; (iii) dedicated freight lines; (iv) rolling stock including train sets, and locomotives/coaches manufacturing and maintenance facilities; (v) railway electri? cation; (vi) signaling systems; (vii) freight terminals; (viii) passenger terminals; (ix) infrastructure in industrial park pertaining to railway line/sidings including electri? ed railway lines and connectivities to main railway line; and (x) mass rapid transport systems.

A few key sectors where limited FDI is allowed is summarised in the table below:

Sector FDI

Mining 100% with Government approval

Print media Up to 26% with Government approval

Single brand retail 100% with Government approval

Multi-brand retail 51% with Government approval

B5.2 Laws Affecting Entry of Foreign Suppliers into some Speci? c Selected Service SectorsAs in the case of Australia, domestic regulatory requirements are applicable

in the context of supply of most services. Key aspects that would affect foreign service suppliers are summarised below.

Financial Services: Financial services are regulated by the Reserve Bank of India in respect of both banking and non-banking ? nancial services. Most banking and non-banking activities (including trading in money market instruments and foreign exchange) are subject to minimum capitalisation norms. 74% foreign investment is allowed in private banking, and 100% in non-banking ? nancial services. In the insurance sector, foreign investment is limited to 26%, and is


subject to regulatory requirements of the Insurance Regulatory Development Authority (“IRDA”). The insurance cap is set to be enhanced to 49% under the Annual Budget for 2014.

Telecommunications Services: Supply of telecommunications services is subject to licensing requirements for both domestic and foreign players, whether basic telecommunications services carrying voice, fax or data over local or inter-state distances or to or from outside India, or any value added telecommunications services. Foreign service suppliers are also subject to scrutiny on grounds of security.

Distribution Services: Cash and Carry Wholesale trading/Wholesale trading is liberalised, subject to relevant permits and approvals to be obtained from State level entities. Cash and Carry Wholesale trading refers to sale of goods/merchandise to retailers, industrial, commercial, institutional or other professional business users or to other wholesalers and related subordinated service providers.

Retail services however, is a highly sensitive sector in which liberalisation is being considered in a highly incremental manner. With regard to single-brand retail, the conditions speci? ed above are re? ected in India’s FDI policy. With regard to multi-brand retail services, 51% foreign equity investment is possible, subject to a variety of other regulatory conditions. These include a requirement that 30% of the value of procurement of manufactured/processed products purchased shall be sourced from Indian micro, small and medium industries, and that 50% of total FDI brought in the ? rst tranche of US $ 100 million, shall be invested in “back-end infrastructure” within three years.

Professional Services: Most professional services (such as legal, accountancy, medicine and architecture), are regulated by statutorily constituted bodies, which prescribe quali? cation and licensing requirements for performance of a service.

The Advocates Act which governs legal services, for instance, restricts the practice of law to citizens of India. However, there is no prohibition against foreign lawyers providing legal advice on foreign laws in India. In the accountancy sector, market access for foreign professionals to practice the profession of a “Chartered Accountant” or “Cost Accountant” are limited by provisions under the laws which mandate the relevant professional bodies to condition entry of a foreign professional based on whether their home country would allow practice by an Indian quali? ed chartered or cost accountant. A foreign national can use the title “Architect” if such person is registered with the Council for Architecture. Such registration would be available only in respect of nationals of countries which offer recognition to quali? cations obtained in India, or with which the Government of India has concluded a scheme of reciprocity. The Architects Act also provides that a person carrying on the profession of an architect in any country outside India may also undertake the function as a consultant or designer in India for a speci? c project with the prior permission of the Central Government.


B5.3 Law Affecting the way that Foreign Service Suppliers may Arrange Entry and Stay of Natural Persons

In India, the entry, stay and exit of foreign nationals are primarily regulated by the Passport Act, 1920, Foreigners Act, 1946 and the Registration of Foreigners Act, 1939. The Foreigners Division of the Ministry of Home Affairs (“MHA”) administers all matters, including policies, statutes, and rules, related to Visas, immigration and citizenship.

Visas are granted for various purposes including tourist, employment, business, student entry, research, journalist, medical, return, project, conference and transit. All foreigners (including foreigners of Indian origin) visiting India for more than 180 days on a Student, Medical, Research or Employment Visa are required to register with the Foreign Registration Of? ce within fourteen days of arrival.

With regard to movement of natural persons for trade purposes, the frequently used Visa categories are:

• Business Visas, which are granted for foreign nationals seeking to explore business opportunities, purchase or sale of goods in India, organisation or participation in fairs and exhibitions.

• Employment Visas, which are granted for a foreign national seeking to work in India. India does not have a separate “work permit” system, and the employment Visa is the relevant document for undertaking any work in India. There are several conditions applicable for grant of such Visas, for example, such Visas are not to be granted for jobs for which quali? ed Indians are available. Employment Visa shall also not be granted for routine, ordinary or secretarial/clerical jobs. The foreign national being sponsored for an employment Visa in any sector should draw a salary in excess of US$ 25,000 per annum. Limited categories of professionals are exempted from this salary requirement, such as ethnic cooks, language teachers and foreigners engaged with a charitable organisation.

• Project Visa: Within the Employment Visa regime, a separate Visa regime for foreign nationals coming to India for execution of projects in power and steel sectors, labeled as a Project Visa (“P-Visa”) has been introduced. In each of these sectors, only speci? c number of P-Visas can be issued for a speci? c project, based on the size of the project.

B6 Government ProcurementIndia is not a signatory to the WTO’s Agreement on Government Procurement,

and has also not so far committed Government Procurement (“GP”) under any of its FTAs. GP is largely seen as an important instrument of Government policy, under which the Government seeks to retain ? exibility to encourage domestic manufacturing and services and achieve socio-economic objectives. In practice however, procurement practices followed by both Central and State Governments in India largely allows foreign suppliers to bid for tenders.

B7. Impact of WTO Jurisprudence on Evolution of Indian LawAs a member of the WTO, India has been both complaining and defending

party to several disputes raised at the WTO. Two landmark WTO cases that India has been involved in are summarised below:


India-Quantitative Restrictions:77 Certain licensing practices and quantitative restrictions imposed by India under its customs laws in the mid-1990s were challenged by the US before the WTO. This case arose in 1997, as a result of concerns that the US had regarding certain quantitative restrictions and import licensing requirements that India maintained under its customs laws. India claimed were maintained to protect its Balance-of-Payments (“BoP”) situation under GATT Article XVIII, and had also initiated consultations at the GATT BoP Committee with a commitment to phase out its restrictions over a period of time. The restrictions impacted 2,714 tariff lines (710 out of which were agricultural products). The WTO Dispute Settlement Body ruled that India could not justify its measures on reasons of balance of payment, following which Indian law underwent amendments to ensure consistency with WTO requirements.

India-Autos:78 Indigenisation (i.e., local content) and trade balancing requirements imposed by India in the automotive sector were successfully challenged as violating the GATT and the WTO’s Agreement on Trade Related Investment Measures (“TRIMS”). India was required to withdraw these measures as a result of the WTO case.

SCHEDULE 1

AUSTRALIA’S BILATERAL AND REGIONAL TRADE AGREEMENTS

• The Australia New Zealand Closer Economic Relations Trade Agreement 1983 which relates to trade in goods and the 1998 Protocol relating to trade in services and the 2013 Protocol dealing with investment.79

• The Papua New Guinea Trade and Commercial Relations Agreement 1991, in force 20 September 1991;80

• The Singapore Australia Free Trade Agreement, in force 28 July 2003;81

• The Thailand Australia Free Trade Agreement, 2004, in force 1 January 2005;82

77. India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products WT/DS90/AB/R (1999).

78. India-Measures Affecting the Automotive Sector, WT/DS175/AB/R (2002).

79. Agreement for Closer Economic Relations between Australia and New Zealand, Canberra, 28 March 1983, in force 1 January 1983 [1983] ATS 2; [1983] NZTS 1 (and subsequent amendments). Protocol on Trade in Services to the Australia New Zealand Closer Economic Relations Trade Agreement, Canberra, 18 August 1988, in force 1 January 1989 ATS 1988 No. 20. Protocol on Investment to the Australia – New Zealand Closer Economic Relations Trade Agreement, Wellington, 16 February 2011, in force 1 March 2013. These texts and associated amendments and protocols are available from <www.dfat.gov.au/fta/anzcerta/anz_cer_trade.html>.

80. Agreement on Trade and Commercial Relations between the Government of Australia and the Government of Papua New Guinea, done Port Moresby, 21 February 1991, in force with exchange of notes 20 September 1991; (“PATCRA II”); UNTS Vol. 1660 p. 263; [1991] ATS 37. Text also available at <www.info.dfat.gov.au/Info/Treaties/treaties.nsf/AllDocIDs/B356605696C3CB9BCA256B9200190D02>.

81. Singapore-Australia Free Trade Agreement, done Singapore, 17 February 2003, in force 28 July 2003; Vol. 2257 UNTS p. 103 (UN No. 40211); [2003] ATS 16, also available at <www.dfat.gov.au/fta/index.html> and at <www.info.dfat.gov.au/Info/Treaties/treaties.nsf/AllDocIDs/45592CC72C4724A6CA2578440083733D> with details of amendments.

82. Australia-Thailand Free Trade Agreement, done Canberra, 5 July 2004, in force 1 January 2005; [2005] ATS 2, available at <www.info.dfat.gov.au/Info/Treaties/treaties.nsf/AllDocIDs/D8EC61612DB272C1CA256ED80013E265>.


• The Australia United States Free Trade Agreement, 2004, in force 1 January 2005;83

• The Australia Chile Free Trade Agreement, in force 1 May 2009;84

• The ASEAN – Australia – New Zealand FTA, done 27 February 2009, in force for all 12 parties since 10 January 2012;85

• The Malaysia – Australia Free Trade Agreement, done 22 May 2012, Kuala Lumpur, in force 1 January 2013;86

• The Korea Australia Free Trade Agreement, done 8 April 2014, Seoul, in force 12 December 2014;87

• The Japan Australia Economic Partnership Agreement, done 8 July 2014, Canberra, in force 15 January 2015;88

• The Free Trade Agreement between the Government of Australia and the Government of the People’s Republic of China, done at Canberra on 17 June 2015 (signed, but not yet rati? ed, at 17 August 2015);89

• Australia is also bound under one Non-Reciprocal Trade Agreement: The South Paci? c Regional Trade and Economic Cooperation Agreement (SPARTECA), 1980, in force 1 January 1981 under which Australia and NZ agree to provide preferential market access to 13 Paci? c Island countries.90

83. Australia-United States Free Trade Agreement, done Washington, 18 May 2004, in force 1 January 2005; [2005] ATS 1, available at: <www.info.dfat.gov.au/Info/Treaties/treaties.nsf/AllDocIDs/7DED2CE49FDACEC5CA256EAF00277EF4>.

84. Australia Chile Free Trade Agreement, done Canberra, 30 July 2008, in force 1 May 2009; [2009] ATS 6, available at <www.austlii.edu.au/au/other/dfat/treaties/2009/6/> and at <www.dfat.gov.au/fta/aclfta/>.

85. ASEAN – Australia – New Zealand Free Trade Agreement, done 27 February 2009, in force 10 January 2010; [2010] ATS 1, available at <www.dfat.gov.au/fta/aanzfta/> and <www.austlii.edu.au/au/other/dfat/treaties/2010/1.html>.

86. Malaysia Australia Free Trade Agreement, done Kuala Lumpur, 22 May 2012, in force 1 January 2013; [2013] ATS 4, available at <www.dfat.gov.au/fta/mafta/#full-text> and <www.info.dfat.gov.au/Info/Treaties/treaties.nsf/AllDocIDs/DD0FC5B656081BABCA257A080013DB8F>.

87. Korea Australia Free Trade Agreement, done Seoul, 8 April 2014, in force 12 December 2014; [2014] ATS 43, available at <www.dfat.gov.au/trade/agreements/kafta/of? cial-documents/Pages/default.aspx> and <www.info.dfat.gov.au/Info/Treaties/treaties.nsf/AllDocIDs/8430726FF168944ACA257CBB0020F5AC>

88. Japan Australia Economic Partnership Agreement, done Canberra, 8 July 2014, in force 15 January 2015, available at <www.dfat.gov.au/trade/agreements/jaepa/of? cial-documents/Pages/of? cial-documents.aspx> and <www.info.dfat.gov.au/Info/Treaties/treaties.nsf/AllDocIDs/57E2F7D5B9D3E52ECA257D0F007CCE02>.

89. The Free Trade Agreement between the Government of Australia and the Government of the People’s Republic of China, done at Canberra on 17 June 2015 (signed, but not yet rati? ed, at 17 August 2015), available at <http://dfat.gov.au/trade/agreements/chafta/of? cial-documents/Pages/of? cial-documents.aspx>

90. South Paci? c Regional Trade and Economic Cooperation Agreement (SPARTECA), done Tarawa, 14 July 1980, in force for Australia on 30 June 1982; [1982] ATS 31, available at <www.austlii.edu.au/au/other/dfat/treaties/1982/31.html>.


SCHEDULE 2

INDIA’S BILATERAL AND REGIONAL TRADE AGREEMENTS

• India-Singapore Comprehensive Economic Cooperation Agreement, 2005;91

• India Korea Comprehensive Economic Cooperation Agreement, 2009;92

• India Japan Comprehensive Economic Cooperation Agreement, 2011;93 and

• India Malaysia Comprehensive Economic Cooperation Agreement, 2011.94

—————

91. Comprehensive Economic Cooperation Agreement between the Republic of India and the Republic of Singapore, New Delhi, 29 June 2005, available at <http://commerce.nic.in/trade/international_ta_framework_ceca.asp>.

92. Comprehensive Economic Partnership Agreement between the Republic of India and the Republic of Korea, Seoul, 7 August 2009, available at <http://commerce.nic.in/trade/international_ta.asp>.

93. Comprehensive Economic Partnership Agreement between the Republic of India and Japan, Tokyo, 16 February 2011, available at <http://commerce.nic.in/trade/international_ta.asp>.

94. Comprehensive Economic Cooperation Agreement between the Republic of India and the Government of Malaysia, done at Kuala Lumpur, 18 February 2011, in force 1 July 2011, available at <www.miti.gov.my/cms/content.jsp?id=com.tms.cms.section.Section_54ce4f96-c0a8156f-2af82af8-6735df31>.

australia india ch 3

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