PROTOCOL AMENDING THE AGREEMENT BETWEEN JAPAN AND THE REPUBLIC OF INDONESIA FOR AN ECONOMIC PARTNERSHIP

"The World and Japan" Database (Project Leader: TANAKA Akihiko)

Database of Japanese Politics and International Relations

National Graduate Institute for Policy Studies (GRIPS); Institute for Advanced Studies on Asia (IASA), The University of Tokyo

[Title] PROTOCOL AMENDING THE AGREEMENT BETWEEN JAPAN AND THE REPUBLIC OF INDONESIA FOR AN ECONOMIC PARTNERSHIP

[Place]

[Date] August 8, 2024

[Source] Ministry of Foreign Affairs of Japan

[Notes]

[Full text]

Japan and the Republic of Indonesia (hereinafter referred to in this Protocol as "the Parties");

Having undertaken a general review of the Agreement between Japan and the Republic of Indonesia for an Economic Partnership, done at Jakarta, August 20, 2007 (hereinafter referred to as "the Agreement") pursuant to Article 151 of the Agreement;

Recognizing the need to upgrade the Agreement, including in the areas of Trade in Goods, Trade in Services, Movement of Natural Persons, Intellectual Property and Government Procurement, to ensure that the Agreement retains its relevance to businesses in responding to current development;

Desiring to modernize the Agreement to take into account changing global business and trade practices, and the growing significance of electronic commerce between the Parties; and

Desiring to conclude a protocol to amend the Agreement pursuant to Article 152 of the Agreement,

HAVE AGREED as follows:

Article 1

The table of contents of the Agreement shall be deleted and replaced by the new table of contents as provided for in Annex A to this Protocol.

Article 2

Article 2 of the Agreement shall be amended by deleting the expression "and" at the end of subparagraph 1(f), renumbering subparagraph 1(g) as subparagraph 1(i) and inserting the following new subparagraphs immediately after subparagraph 1(f):

"(g) the term "Protocol" means the Protocol amending the Agreement between Japan and the Republic of Indonesia for an Economic Partnership, done at Tokyo and Jakarta, August 8, 2024;

(h) the term "TRIPS Agreement" means the Agreement on Trade-Related Aspects of Intellectual Property Rights in Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh, April 15, 1994; and"

Article 3

Article 11 of the Agreement shall be amended by deleting paragraphs 1 through 4 and replacing them by the following paragraphs:

"1. For the purposes of Chapters 2, 3, 4, 5, 7A and 8 of this Agreement, Article XX of the GATT 1994 is incorporated into and forms part of this Agreement, mutatis mutandis.

Note: The Parties understand that the measures referred to in subparagraph (b) of Article XX of the GATT 1994 include environmental measures necessary to protect human, animal or plant life or health, and that subparagraph (g) of Article XX of the GATT 1994 applies to measures relating to the conservation of living and non- living exhaustible natural resources.

2. For the purposes of Chapters 5, 6, 7 and 7A of this Agreement, Article XIV of the GATS including its footnotes is incorporated into and forms part of this Agreement, mutatis mutandis.

Note: The Parties understand that the measures referred to in subparagraph (b) of Article XIV of the GATS include environmental measures necessary to protect human, animal or plant life or health.

3. Nothing in this Agreement shall be construed:

(a) to require a Party to furnish any information the disclosure of which it considers contrary to its essential security interests;

(b) to prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:

(i) relating to fissionable and fusionable materials or the materials from which they are derived;

(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials, or relating to the supply of services, as carried on directly or indirectly for the purpose of supplying or provisioning a military establishment;

(iii) taken so as to protect critical public infrastructures including communications, power, and water infrastructures;

Note: For greater certainty, this includes critical public infrastructures whether publicly or privately owned.

(iv) taken in time of national emergency or war or other emergency in international relations; or

(c) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.

4. In cases where a Party takes any measure pursuant to paragraph 1, 2 or 3 that does not conform with the obligations under Chapter 5, the Party shall make reasonable effort to notify the other Party of the description of such measure either before the measure is taken or as soon as possible thereafter."

Article 4

Article 26 of the Agreement shall be amended by deleting subparagraph (b) and replacing it by the following subparagraph:

"(b) discussing any issues related to this Chapter, including measures to update each Party's tariff schedule to reflect the amendments to the HS;

Note: For greater certainty, the Parties understand that each Party, following amendments to the HS, carries out updates of its tariff schedule without changing the substance of the tariff concessions set out in the Schedules in Annex 1, and such updates of each Party's tariff schedule shall not constitute an amendment set out in Article 152."

Article 5

Article 95 of the Agreement shall be amended by deleting the expression "a renewal" in paragraph 1 and replacing it by the expression "an extension", and by inserting the following new paragraphs immediately after paragraph 3:

"4. Each Party shall process without undue delay complete applications for the grant of entry and temporary stay or extensions thereof received from an applicant who is a natural person of the other Party covered by Article 92 or his or her employer.

5. If the competent authorities of a Party require additional information in order to process the application for the grant of entry and temporary stay, they shall, where applicable, endeavor to notify the applicant without undue delay.

6. Each Party shall, upon request and within a reasonable period of time after receiving a complete application for the grant of entry and temporary stay or extensions thereof, notify the applicant of:

(a) the receipt of the application;

(b) the status of the application; and

7. Each Party shall endeavor to simplify the requirements including required documentation, and to facilitate and expedite the procedures, relating to entry and temporary stay or extensions thereof, in accordance with its laws and regulations."

Article 6

The following new Chapter shall be inserted immediately after Chapter 7 of the Agreement:

"Chapter 7A
Electronic Commerce

Article 96A
Scope

1. This Chapter shall apply to measures by a Party affecting electronic commerce.

2. This Chapter shall not apply to government procurement.

3. In the event of any inconsistency between this Chapter and another Chapter of this Agreement, the other Chapter shall prevail to the extent of the inconsistency.

Article 96B
Definitions

For the purposes of this Chapter:

(a) the term "computing facilities" means computer servers and storage devices for processing or storing information for

commercial use；

(b) the term "covered person" means:

(i) "investments", as defined in subparagraph (f) of Article 58, of an investor of the other Party in the Area of a Party;

(ii) an "investor of the other Party" as defined in subparagraph (h) of Article 58; or

(iii) a "service supplier", as defined in subparagraph (q) of Article 77, of a Party,

but does not include a "financial service supplier" or a "public entity" as defined in subparagraph 2(a) (ii) and (iii) of Section 1 of Annex 7, and a financial institution;

(c) the term "measure" means any measure, whether in the form of a law, regulation, rule, procedure, decision, administrative action or any other form; and

(d) the term "personal information" means any information, including data, about an identified or identifiable natural person.

Article 96C
Online Consumer Protection

1. The Parties recognize the importance of adopting and maintaining transparent and effective measures to protect consumers from fraudulent and misleading practices when they engage in electronic commerce.

2. For the purposes of this Article, fraudulent and misleading practices refers to those fraudulent and misleading practices that cause actual harm to consumers, or that pose an imminent threat of such harm if not prevented, for example:

(a) a practice of making misrepresentations of material fact, including implied factual misrepresentations, that cause significant detriment to the economic interests of misled consumers;

(b) a practice of failing to deliver products or provide services to consumers after the consumers are charged; or

3. Each Party shall adopt or maintain domestic laws and regulations to provide protection for consumers using electronic commerce against fraudulent and misleading practices that cause harm or potential harm to such consumers.

4. The Parties recognize the importance of cooperation between their respective competent authorities in charge of consumer protection on activities related to electronic commerce in order to enhance consumer protection.

Article 96D
Personal Information Protection

1. The Parties recognize the economic and social benefits of protecting the personal information of users of electronic commerce and the contribution that protecting such personal information makes to enhancing consumer confidence in electronic commerce.

2. Each Party shall adopt or maintain laws and regulations which ensure the protection of personal information of the users of electronic commerce. In the development of laws and regulations for the protection of personal information, each Party shall take into account international standards, principles, guidelines and criteria of relevant international organizations or bodies.

3. Each Party shall endeavor to adopt non- discriminatory practices in protecting users of electronic commerce from personal information protection violations occurring within its jurisdiction.

4. Each Party should publish information on the personal information protections it provides to users of electronic commerce, including how:

(a) individuals can pursue remedies; and

(b) business can comply with any legal requirements.

5. Recognizing that the Parties may take different legal approaches to protecting personal information, each Party should encourage the development of cooperation to promote compatibility between these different regimes. This cooperation may include the recognition of regulatory outcomes, whether accorded autonomously or by mutual arrangement, or broader international frameworks. To this end, the Parties shall endeavor to exchange information on any such cooperation in their Areas and explore ways to extend that cooperation or other suitable arrangements to promote compatibility between them.

Article 96E
Domestic Regulatory Frameworks

Each Party shall adopt or maintain a legal framework governing electronic transactions, taking into account the UNCITRAL Model Law on Electronic Commerce 1996, the United Nations Convention on the Use of Electronic Communications in International Contracts, done at New York, November 23, 2005 or other applicable international conventions and model laws related to electronic commerce.

Article 96F
Cross-Border Information Flows

1. The Parties recognize that each Party may have its own regulatory requirements concerning the transfer of information by electronic means.

2. Neither Party shall prevent the cross-border transfer of information by electronic means, including personal information, when such activity is for the conduct of the business of a covered person.

Note: For the purposes of this paragraph, Indonesia may adopt or maintain any measures that require certain information to be stored and processed in the Area of Indonesia, when businesses are performed for and on behalf of government authorities or institutions assigned by government authorities to operate the Electronic System Operations in accordance with the Government Regulation No. 71 of 2019 concerning Electronic System and Transaction Operation or its amendment and replacement.

3. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 that it considers necessary:

(a) to achieve a legitimate public policy objective, provided that the measure is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade, and does not impose restrictions on transfers of information greater than are required to achieve the objective; or

(b) for the protection of its essential security interest.

4. Paragraph 2 shall not apply to information held or processed by or on behalf of a Party, or measures related to such information, including measures related to its collection.

Article 96G
Location of Computing Facilities

1. The Parties recognize that each Party may have its own regulatory requirements regarding the use of computing facilities, including requirements that seek to ensure the security and confidentiality of communications.

2. Neither Party shall require a covered person to use or locate computing facilities in the Area of the Party as a condition for conducting business in that Area.

3. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 that it considers necessary:

(a) to achieve a legitimate public policy objective, provided that the measure is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade, and does not impose restrictions on the use or location of computing facilities greater than are required to achieve the objective; or

(b) for the protection of its essential security interest.

4. Paragraph 2 shall not apply to information held or processed by or on behalf of a Party, or measures related to such information, including measures related to its collection.

Article 96H
Source Code

1. Neither Party shall require the transfer of, or access to, source code of software owned by a person of the other Party, as a condition for the import, distribution, sale or use of such software, or of products containing such software, in the Area of the former Party.

2. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent

with paragraph 1 that it considers necessary：

(a) to achieve a legitimate public policy objective, provided that the measure is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade, and does not impose restrictions on the transfer of, or access to, source code of software owned by a person of the other Party greater than are required to achieve the objective; or

(b) for the protection of its essential security interest.

3. Nothing in this Article shall preclude:

(a) the inclusion or implementation of terms and conditions related to the provision of source code in commercially negotiated contracts; or

(b) a Party from requiring the modification of source code of software necessary for that software to comply with laws or regulations which are not inconsistent with this Agreement.

4. Measures that fall under subparagraph 2(b) shall not be subject to dispute settlement under Chapter 14.

Article 96I
Cooperation

1. The Parties shall, where appropriate, cooperate to:

(a) work together to assist small and medium enterprises to overcome obstacles in the use of electronic commerce;

(b) identify areas for targeted cooperation between the Parties which will help the Parties implement or enhance their electronic commerce legal framework, such as research and training activities, capacity building, and the provision of technical assistance;

(c) share information, experiences, and best practices in addressing challenges related to the development and use of electronic commerce;

(d) encourage business sectors to develop methods or practices that enhance accountability and consumer confidence to foster the use of electronic commerce; and

(e) actively participate in regional and multilateral fora to promote the development of electronic commerce.

2. The Parties shall endeavor to undertake forms of cooperation that build on and do not duplicate existing cooperation initiatives pursued in international fora."

Article 7

Article 106 of the Agreement shall be amended by deleting the expression "and" at the end of subparagraph 3(b), by deleting the period at the end of subparagraph 3(c) and replacing it by the expression "; and", and by inserting the following new subparagraph immediately after subparagraph 3(c):

"(d) the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs of July 2, 1999."

Article 8

Article 112 of the Agreement shall be amended by inserting the following new paragraph immediately after paragraph 7:

"8. Each Party shall provide that, where an application for a patent is translated into the national language of the Party, the applicant for the patent or the patent owner may correct errors in the translation of the application for a reasonable period of time before the decision of examination and after the grant of patent in order to ensure adequate and effective acquisition and enforcement of the patent in accordance with its laws and regulations.

Note: This paragraph shall apply where the application is filed in a language other than the national language of a Party and then translated into its national language, or where the application is translated into and filed in the national language of a Party on the basis of one or more earlier applications in a language other than its national language whose priority is claimed."

Article 9

Article 113 of the Agreement shall be amended as follows:

1. By inserting the following new sentence immediately after the second sentence of paragraph 1:

"Each Party shall provide that such protection shall not extend to designs dictated essentially by technical or functional considerations."; and

2. By inserting the following new paragraphs immediately after paragraph 5:

"6. Each Party shall provide that an applicant for registration of an industrial design may request the administrative authority for industrial designs to maintain the design unpublished for a period designated by the applicant not exceeding the period provided for in its laws and regulations.

7. Each Party shall ensure that the protection of an industrial design of a component part under paragraphs 1 and 3 is provided regardless of whether or not the component part is used for the purpose of the repair of a complex product so as to restore its original appearance, as long as the industrial design of the component part is registered."

Article 10

The following new Article shall be inserted immediately after Article 114 of the Agreement.

"Article 114A
Geographical Indications

1. Each Party shall ensure, in accordance with its laws and regulations, adequate and effective means to protect geographical indications.

2. For the purposes of this Chapter, "geographical indications" are indications which identify a good as originating in the Area of a Party, or a region or locality in that Area, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.

3. In respect of geographical indications and without prejudice to Article 23 of the TRIPS Agreement, the Parties shall provide the legal means for interested parties to prevent:

(a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good;

(b) any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention for the Protection of Industrial Property, signed at Paris on March 20, 1883, as amended.

4. Each Party shall provide the legal means for interested parties to prevent in its Area the use of a geographical indication identifying at least wines, spirits and other alcoholic beverages as well as agricultural products for identical or like goods not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as "kind", "type", "style", "imitation" or the like.

Note 1: Notwithstanding Article 120, each Party may, with respect to these obligations, instead provide for enforcement by administrative action.

Note 2: For the purposes of this Article, with respect to the protection of geographical indications in Japan, the term "alcoholic beverages" means beverages containing one percent of alcohol or more.

Note 3: For the purposes of this Article, with respect to the protection of geographical indications in Japan, the term "agricultural products" means agricultural, forestry, and fishery products as well as foodstuffs excluding alcoholic beverages.

Note 4: For the purposes of this paragraph, "like goods", in relation to a good for which a geographical indication has been protected in a Party's system, means a good that would fall within the same category of good as the good for which a geographical indication has been registered in that Party.

5. The Parties will endeavor to conclude an agreement on mutual recognition of geographical indications.

6. The Parties may exchange information on the protection of their geographical indications, including information on the system, procedures, and goods covered."

Article 11

Article 117 of the Agreement shall be amended as follows:

1. By deleting the expression "and" at the end of subparagraph 3(c), deleting the period at the end of subparagraph 3(d) and replacing it by the expression "; and", and by inserting the following new subparagraph immediately after subparagraph 3(d):

"(e) acts of acquiring or holding right to use domain names identical to a specific indication of goods or services of another person, or using such domain names, with intention to gain unfair profit or intention of causing damage to such person."; and

2. By deleting the expression "identical or" in subparagraph 4(c).

Article 12

Article 119 of the Agreement shall be deleted and replaced by the following Article:

"Article 119
Enforcement - Border Measures

1. Each Party shall adopt procedures to enable a right holder, who has valid grounds for suspecting that the importation or exportation of counterfeit trademark or pirated copyright goods may take place, to lodge an application with competent authorities, administrative or judicial, for the suspension by the customs authority of the release into free circulation of such goods. Each Party shall provide for such applications to apply to multiple shipments.

Note: A Party may comply with the obligation in paragraphs 1, 3 and 4 by providing for a recordation system that enables a right holder to record its valid trademark or copyright with its customs authority.

2. Without prejudice to a Party's laws pertaining to the privacy or confidentiality of information, where its customs authority has detained or suspended the release of goods that are suspected of being counterfeit trademark or pirated copyright goods, that Party shall provide that its customs authority has the authority to inform the right holder of the name and address of the consignor, importer, exporter, or consignee, a description of goods, quantity of goods and, if known, the country of origin of the goods.

3. Each Party shall adopt or maintain procedures with respect to import and export shipments under which its customs authority may act upon their own initiative to suspend the release of suspected counterfeit trademark or pirated copyright goods.

4. Each Party shall ensure that a right holder may provide to its customs authority within a reasonable period any information that may assist it in taking the border measures referred to in this Article.

5. Each Party shall adopt or maintain procedures by which its competent authorities, administrative or judicial, may determine, within a reasonable period after the initiation of the procedures described in paragraphs 1 and 3, whether suspected counterfeit trademark or pirated copyright goods are infringing intellectual property rights.

6. Each Party shall provide that its competent authorities have the authority to order the destruction of goods that are determined as counterfeit trademark or pirated copyright goods. In cases where such goods are not destroyed, each Party shall ensure that, except in exceptional circumstances, such goods are disposed of outside the channels of commerce in such a manner as to avoid any harm to the right holder. With regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient other than in exceptional cases, to permit the release of the goods into the channels of commerce.

Note: For the purposes of this paragraph, the term "competent authorities" may include the judicial authorities.

7. Where an application fee, merchandise storage fee or destruction fee is assessed in connection with border measures to enforce an intellectual property right, each Party shall provide that the fee shall not be set at an amount that deters recourse to these measures."

Article 13

Article 120 of the Agreement shall be amended as follows:

1. By renumbering existing paragraph 2 as paragraph 3; and

2. By deleting paragraph 1 and replacing it by the following paragraphs:

"1. Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that person's intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activities.

2. In determining the amount of damages referred to in paragraph 1, a Party's judicial authorities shall have the authority to consider any legitimate measure of value the right holder submits, which may include the value of the infringed goods or services, measured by the market price."

Article 14

Article 121 of the Agreement shall be amended by numbering the existing paragraph as paragraph 1 and inserting the following new paragraph thereafter:

"2. With respect to the offences specified in paragraph 1, each Party shall provide that its judicial authorities have the authority to order the forfeiture or destruction of counterfeit trademark or pirated copyright goods, and of any materials and implements used in the creation thereof. Each Party shall ensure that the forfeiture or destruction of such goods, and of any materials and implements thereof shall occur without compensation of any sort to the infringer."

Article 15

The following new Articles shall be inserted immediately after the heading of Chapter 10 of the Agreement:

"Article 123A
Principles

1. Recognizing the importance of government procurement in further improving the business environment in order to increase economic growth of the Parties, each Party shall endeavor to:

(a) enhance transparency of the measures regarding government procurement; and

(b) implement in an objective and effective manner the measures regarding government procurement.

2. A procuring entity shall conduct government procurement in a transparent and impartial manner that:

(a) avoids conflicts of interest; and

(b) prevents corrupt practices.

Article 123B
Procurement Information

Each Party shall promptly publish any law, regulation, judicial decision, administrative ruling of general application and administrative procedure regarding its government procurement, and any modifications thereof, in an officially designated electronic or paper medium that is widely disseminated and remains readily accessible to the public.

Article 123C
Further Negotiation

In the event that, after the entry into force of the Protocol, a Party offers a non-Party any advantages of access to its government procurement market, the former Party shall, upon request of the other Party, afford adequate opportunity to enter into negotiations with the other Party."

Article 16

Article 124 of the Agreement shall be amended as follows:

1. By deleting paragraph 2 and replacing it by the following paragraph:

"2. Each Party shall designate a contact point to facilitate communication, exchange of information, cooperation and consultation between the Parties on any matters relating to this Chapter."; and

2. By inserting the following new paragraph immediately after new paragraph 2:

"3. Upon entry into force of the Protocol, each Party shall notify the other Party of its contact point referred to in paragraph 2. Each Party shall notify the other Party of any changes to its contact point."

Article 17

The following new Article shall be inserted immediately after Article 124 of the Agreement:

"Article 124A
Cooperation

The Parties shall cooperate, on mutually agreed terms, to increase understanding of their respective government procurement systems with a view to increasing government procurement market access opportunities."

Article 18

Article 125 of the Agreement shall be amended by deleting the expression "by its governmental authority referred to in paragraph 2 of Article 124" in paragraph 2 and replacing it by the expression "by its contact points referred to in paragraph 2 of Article 124".

Article 19

Article 150 of the Agreement shall be deleted and replaced by the following Article:

"Article 150
Annexes, Appendices and Notes

The Annexes, Appendices and Notes to this Agreement shall form an integral part of this Agreement."

Article 20

Article 152 of the Agreement shall be amended by deleting paragraph 3 and replacing it by the following paragraph:

"3. Notwithstanding paragraph 2, amendments relating only to the following Annexes may be made by diplomatic notes exchanged between the Governments of the Parties:

(a) Annex 1, provided that the amendments are made in accordance with the amendments to the HS, and include no change on the rates of customs duty to be applied by a Party to the originating goods of the other Party in accordance with Annex 1;

(b) Annex 2; and

Article 21

Annex 1 to the Agreement shall be amended as provided for in Annex B and its Appendix to this Protocol.

Article 22

Annex 8 to the Agreement shall be amended as provided for in Annex C to this Protocol.

Article 23

Annex 9 to the Agreement shall be amended as provided for in Annex D to this Protocol.

Article 24

Annex 10 to the Agreement shall be amended as provided for in Annex E to this Protocol.

Article 25

The annexes and their appendices to this Protocol shall form an integral part of this Protocol.

Article 26

1. This Protocol shall enter into force on the first day of the second month following the date on which the Governments of the Parties exchange diplomatic notes informing each other that their respective legal procedures necessary for entry into force of this Protocol have been completed.

2. This Protocol shall remain in force as long as the Agreement remains in force.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Protocol.

DONE at Tokyo and Jakarta on the eighth day of August in the year 2024 in duplicate in the English, Japanese and Indonesian languages, except for Part 3 of Annex B and Part 2 of Annex C, which are done in duplicate in the English and Indonesian languages. All texts of this Protocol shall be equally authentic. The Japanese and Indonesian texts are made for reference purpose for this Protocol, and in the event of any divergence of interpretation, the English text shall prevail.

For Japan:
上川陽子
Minister for Foreign Affairs

For the Republic of Indonesia:
Zulkifli Hasan
Minister of Trade