1. Neither Party shall, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment in its territory of an investor of a Party or of a non-Party, impose or enforce any requirement or enforce any commitment or undertaking: (9)
(a) to export a given level or percentage of goods or services;
(b) to achieve a given level or percentage of domestic content;
(c) to purchase, use, or accord a preference to goods produced in its territory, or to purchase goods from persons in its territory;
(d) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment;
(e) to restrict sales of goods or services in its territory that such investment produces or supplies by relating such sales in any way to the volume or value of its exports or foreign exchange earnings;
(f) to transfer a particular technology, a production process, or other proprietary knowledge to a person in its territory; or
(g) to supply exclusively from the territory of the Party the goods that such investment produces or the services that it supplies to a specific regional market or to the world market.
2. Neither Party shall condition the receipt or continued receipt of an advantage, in connection with the establishment, acquisition, expansion, management, conduct, operation,or sale or other disposition of an investment in its territory of an investor of a Party or of a non-Party, on compliance with any requirement:
(a) to achieve a given level or percentage of domestic content;
(b) to purchase, use, or accord a preference to goods produced in its territory, or to purchase goods from persons in its territory;
(c) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment; or
(d) to restrict sales of goods or services in its territory that such investment produces or supplies by relating such sales in any way to the volume or value of its exports or foreign exchange earnings.
3. Nothing in paragraph 2 shall be construed to prevent a Party from conditioning the receipt or continued receipt of an advantage, in connection with an investment in its territory of an investor of a Party or of a non-Party, on compliance with a requirement to locate production, supply a service, train or employ workers, construct or expand particular facilities, or carry out research and development, in its territory.
4. Paragraph 1(f) does not apply:
(a) when a Party authorises use of an intellectual property right in accordance with Article 31 of the TRIPS Agreement, or to measures requiring the disclosure of proprietary information that fall within the scope of, and are consistent with, Article 39 of the TRIPS Agreement; or
(b) when the requirement is imposed or the commitment or undertaking is enforced by a court, administrative tribunal, or competition authority to remedy a practice determined after judicial or administrative process to be anti-competitive under the Party's competition laws.10
5. Paragraphs 1(a) through (c), and 2(a) and (b), do not apply to qualification requirements for goods or services with respect to export promotion and foreign aid programmes.
6. Paragraphs 1(b), (c), (f), and (g), and 2(a) and (b), do not apply to government procurement.
7. Paragraphs 2(a) and (b) do not apply to requirements imposed by an importing Party relating to the content of goods necessary to qualify for preferential tariffs or preferential quotas.
8. For greater certainty, paragraphs 1 and 2 do not apply to any commitment, undertaking, or requirement other than those set out in those paragraphs.
9. This Article does not preclude enforcement of any commitment, undertaking, or requirement between private parties, where a Party did not impose or require the commitment, undertaking, or requirement.

Article 10.12. Senior Management and Boards of Directors

1. Neither Party shall require that an enterprise of that Party that is a covered investment appoint to senior management positions natural persons of any particular nationality.
2. A Party may require that a majority of the board of directors, or any committee thereof, of an enterprise of that Party that is a covered investment, be of a particular nationality, or resident in the territory of the Party, provided that the requirement does not materially impair the ability of the investor to exercise control over its investment.

Article 10.13. Investment and Environment

Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining, or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental concerns.

Article 10.14. Denial of Benefits

1. Subject to notification (11) to the other Party, a Party may deny the benefits of this Chapter to:
(a) investors of the other Party and to the investments of that investor where the investment is being made by an enterprise that is owned or controlled by persons of a non-Party and the enterprise has no substantive business operations in the territory of the other Party; or
(b) investors of the other Party and to the investments of that investor where the investment is being made by an enterprise that is owned or controlled by persons of the denying Party and the enterprise has no substantive business operations in the territory of the other Party.
2. A Party that denies benefits pursuant to paragraph 1 shall enter into consultations promptly following notification on the request of the other Party.
Such consultations shall be without prejudice to the Parties' rights under Chapter 19 (Dispute Settlement) and under the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes.

Article 10.15. Non-conforming Measures

1. Articles 10.5, 10.6, 10.11 and 10.12 shall not apply to: 11 A Party shall, to the extent practicable, provide such notification to the other Party prior to denying the benefits of this Chapter.
(a) any existing non-conforming measure that is maintained by a Party at:
(i) the central level of government, as set out by that Party in its Schedule to Annex I; or
(ii) a local level of government;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(c) an amendment to any non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Articles 10.5, 10.6, 10.11 and 10.12.
2. Articles 10.5, 10.6, 10.11 and 10.12 do not apply to any measure that a Party adopts or maintains with respect to sectors, subsectors, or activities, as set out in its Schedule to Annex II.
3. Neither Party shall, under any measure adopted after the date of entry into force of this Agreement and covered by its Schedule to Annex II, require an investor of the other Party, by reason of its nationality, to sell or otherwise dispose of an investment existing at the time the measure becomes effective.
4. Articles 10.5 and 10.6 do not apply to any measure that is an exception to, or derogation from, a Party's obligations under the TRIPS Agreement, as specifically provided for in that agreement.
5. Articles 10.5, 10.6 and 10.12 do not apply to:
(a) government procurement; or
(b) subsidies or grants provided by a Party, including government-supported loans, guarantees, and insurance. 6. The Parties will endeavour to progressively remove the non-conforming measures.

Article 10.16. Special Formalities and Information Requirements

1. Nothing in Article 10.5 shall be construed to prevent a Party from adopting or maintaining a measure that prescribes special formalities in connection with covered investments, such as a requirement that covered investments be legally constituted under the laws or regulations of the Party, provided that such formalities do not materially impair the protections afforded by the Party to investors of the other Party and covered investments pursuant to this Chapter.
2. Notwithstanding Articles 10.5 and 10.6, a Party may require an investor of the other Party or its covered investment to provide information concerning that investment solely for informational or statistical purposes.
The Party shall protect any confidential business information from any disclosure that would prejudice the competitive position of the investor or the covered investment. Nothing in this paragraph shall be construed to prevent a Party from otherwise obtaining or disclosing information in connection with the equitable and good faith application of its law.

Article 10.17. Subrogation

1. If a Party (or any agency, institution, statutory body or corporation designated by it) makes a payment to an investor of that Party under a guarantee, a contract of insurance or other form of indemnity against non-commercial risks it has granted in respect of an investment, the other Party shall recognise the subrogation or transfer of any right or title in respect of such investment. The subrogated or transferred right or claim shall not be greater than the original right or claim of the investor.
2. Where a Party (or any agency, institution, statutory body or corporation designated by it) has made a payment to an investor of that Party and has taken over rights and claims of the investor, that investor shall not, unless authorised to act on behalf of the Party (or any agency, institution, statutory body or corporation designated by it) making the payment, pursue those rights and claims against the other Party.

Section B. Investor State Dispute Settlement

Article 10.18. Settlement of Investment Disputes between a Party and an Investor of the other Party

1. This Section shall apply to disputes between a Party and an investor of the other Party concerning an alleged breach by the former Party of an obligation under Section A directly concerning a covered investment of the investor of that other Party, provided that such breach causes loss or damage to the investor or its investments.
2. This Section shall not apply to investment disputes which have occurred prior to the entry into force of this Agreement.
3. A national possessing the nationality or citizenship of a Party shall not pursue a claim against that Party under this Section. If a national also possesses the nationality or citizenship of a non-Party, he or she shall be deemed to be exclusively a national of the state of his or her dominant and effective nationality.

Article 10.19. Consultation and Negotiation

1. In the event of an investment dispute, the claimant and the respondent shall, as far as possible, seek to resolve the dispute through consultation and negotiation, which may include the use of non-binding, third-party procedures.
2. The claimant shall deliver to the respondent a written request for consultations setting forth a brief description of facts regarding the measure or measures at issue.
3. For greater certainty, the initiation of consultations and negotiations shall not be construed as recognition of the jurisdiction of the tribunal.

Article 10.20. Submission of a Claim to Arbitration

1. If an investment dispute has not been resolved within six months of the receipt by the respondent of a written request for consultations pursuant to Article 10.19.2, the claimant, on its own behalf, may submit to arbitration under this Section a claim:
(a) that the respondent has breached an obligation under Section A, relating to the management, conduct, operation, or sale or other disposition of a covered investment; and
(b) that the claimant has incurred loss or damage by reason of, or arising out of, that breach.
2. At least 90 days before submitting any claim to arbitration under this Section, a claimant shall deliver to the respondent a written notice of its intention to submit the claim to arbitration (hereinafter referred to as a "notice of intent").
The notice of intent shall specify:
(a) the name and address of the claimant;
(b) for each claim, the provision of Section A alleged to have been breached and any other relevant provisions of this Agreement;
(c) the legal and factual basis for each claim; and (d) the relief sought and the approximate amount of damages claimed.
3. A claimant may submit a claim referred to in paragraph 1 under one of the following alternatives:
(a) the ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings, provided that both the respondent and the non-disputing Party are parties to the ICSID Convention;
(b) the ICSID Additional Facility Rules, provided that either the respondent or the non-disputing Party is a party to the ICSID Convention;
(c) the UNCITRAL Arbitration Rules; or
(d) if the claimant and respondent agree, to any other arbitration institution or under any other arbitration rules.
4. A claim shall be deemed submitted to arbitration under this Section when the claimant's notice of, or request for, arbitration (thereinafter referred to as "notice of arbitration"):
(a) referred to in the ICSID Convention is received by the Secretary-General;
(b) referred to in the ICSID Additional Facility Rules is received by the Secretary-General;
(c) referred to in the UNCITRAL Arbitration Rules, together with the statement of claim referred to in the UNCITRAL Arbitration Rules, are received by the respondent; or
(d) referred to under any arbitral institution or arbitral rules selected under paragraph 3(d) is received by the respondent. A claim asserted by the claimant for the first time after such notice of arbitration is submitted shall be deemed submitted to arbitration under this Section on the date of its receipt under the applicable arbitral rules.
5. The arbitration rules applicable under paragraph 3, and in effect on the date the claim or claims were submitted to arbitration under this Section, shall govern the arbitration except to the extent modified by this Agreement.
6. The claimant shall provide with the notice of arbitration:
(a) the name of the arbitrator that the claimant appoints; or
(b) the claimant's written consent for the appointing authority to appoint that arbitrator.

Article 10.21. Consent of Each Party to Arbitration

1. Each Party consents to the submission of a claim to arbitration under this Section in accordance with this Agreement.
2. The consent under paragraph 1 and the submission of a claim to arbitration under this Section shall be deemed to satisfy the requirements of:
(a) Chapter II (Jurisdiction of the Centre) of the ICSID Convention and the ICSID Additional Facility Rules for written consent of the parties to the dispute; and
(b) Article II of the New York Convention for an "agreement in writing".

Article 10.22. Conditions and Limitations on Consent of Each Party

1. No claim shall be submitted to arbitration under this Section if more than three years and six months have elapsed from the date the claimant first acquired, or should have first acquired, knowledge, whichever is the earlier, of a breach of an obligation under Section A causing loss or damage to the claimant.
2. No claim shall be submitted to arbitration under this Section unless:
(a) the claimant consents in writing to arbitration in accordance with the procedures set out in this Agreement; and
(b) the notice of arbitration is accompanied by the claimant's written waiver of any right to initiate or continue before any administrative tribunal or court under the domestic laws of either Party, or other dispute settlement procedures, any proceeding with respect to any measure alleged to constitute a breach referred to in Article 10.20.
3. Notwithstanding paragraph 2(b), the claimant may initiate or continue an action that seeks interim injunctive relief and does not involve the payment of monetary damages before a judicial or administrative tribunal of the respondent, provided that the action is brought for the sole purpose of preserving the claimant's rights and interests during the pendency of the arbitration.

Article 10.23. Selection of Arbitrators

1. Unless the disputing parties otherwise agree, the tribunal shall comprise three arbitrators, one arbitrator appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, appointed by agreement of the disputing parties.
2. The appointing authority shall serve as appointing authority for an arbitration under this Section.
3. If an arbitral tribunal has not been established within 75 days of the date on which the claim was submitted to arbitration, the appointing authority, on the request of either disputing party, shall appoint, at its own discretion, the arbitrator or arbitrators not yet appointed. The appointing authority shall not appoint a national or permanent resident of either Party as the presiding arbitrator unless the disputing parties otherwise agree.
4. For the purposes of Article 39 of the ICSID Convention and Article 7 of Schedule C to the ICSID Additional Facility Rules, and without prejudice to an objection to an arbitrator on a ground other than nationality:
(a) the respondent agrees to the appointment of each individual member of a tribunal established under the ICSID Convention or the ICSID Additional Facility Rules; and
(b) a claimant referred to in Article 10.20.1 may submit a claim to arbitration under this Section, or continue a claim, under the ICSID Convention or the ICSID Additional Facility Rules, only on condition that the claimant agrees in writing to the appointment of each individual member of the tribunal.

Article 10.24. Place of Arbitration

1. The disputing parties may agree on the legal place of any arbitration under the arbitral rules applicable under Article 10.20.3. If the disputing parties fail to reach agreement, the tribunal shall determine the place in accordance with the applicable arbitral rules, provided that the place shall be in the territory of a State that is a party to the New York Convention.
2. On the request of a disputing party, and unless the disputing parties otherwise agree, the tribunal may determine the location of meetings, including consultations and hearings, taking into consideration appropriate factors, including the convenience of the parties and the arbitrators, the location of the subject matter, and the proximity of evidence. The preceding sentence is without prejudice to any appropriate factors a tribunal may consider under paragraph 1.

Article 10.25. Interpretation of Agreement

1. The tribunal shall, on the request of the respondent, request a joint interpretation of the Joint Commission of any provision of this Agreement that is in issue in a dispute. The Joint Commission shall submit in writing any joint decision declaring its interpretation to the tribunal within 60 days of delivery of the request.
2. A joint decision issued under paragraph 1 by the Joint Commission shall be binding on the tribunal, and any award must be consistent with that joint decision. If the Joint Commission fails to issue such a decision within 60 days, the tribunal shall decide the issue on its own account.
3. The non-disputing Party may make oral and written submissions to the tribunal regarding the interpretation of this Agreement. On the request of a disputing party, the non-disputing Party shall resubmit its oral submissions in writing.

Article 10.26. Conduct of the Arbitration

1. The tribunal shall have the authority to accept and consider written amicus curiae submissions that may assist the tribunal in evaluating the submissions and arguments of the disputing parties from a person or entity that is not a disputing party. In determining whether to accept such a filing, the tribunal shall consider, among other things, the extent to which the amicus curiae has a significant interest in the proceeding. The tribunal shall provide the disputing parties with an opportunity to respond to such written submissions.
2. Without prejudice to a tribunal's authority to address other objections as a preliminary question, such as an objection that a dispute is not within the competence of the tribunal, including an objection to the tribunal's jurisdiction, a tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim submitted is not a claim for which an award in favour of the claimant may be made under Article 10.30:
(a) such objection shall be submitted to the tribunal as soon as possible after the tribunal is constituted, and in no event later than the date the tribunal fixes for the respondent to submit its counter-memorial (or, in the case of an amendment to the notice of arbitration, the date the tribunal fixes for the respondent to submit its response to the amendment);
(b) on receipt of an objection under this paragraph, the tribunal shall suspend any proceedings on the merits, establish a schedule for considering the objection consistent with any schedule it has established for considering any other preliminary question, and issue a decision or award on the objection, stating the grounds therefor;
(c) in deciding an objection under this paragraph, the tribunal shall assume to be true the claimant's factual allegations in support of any claim in the notice of arbitration (or any amendment thereof) and, in disputes brought under the UNCITRAL Arbitration Rules, the statement of claim referred to in the relevant Article of the UNCITRAL Arbitration Rules. The tribunal may also consider any relevant facts not in dispute; or
(d) the respondent does not waive any objection as to competence, including an objection to jurisdiction, or any argument on the merits merely because the respondent did or did not raise an objection under this paragraph or make use of the expedited procedure set out in paragraph 3.
3. In the event that the respondent so requests within 45 days of the tribunal being constituted, the tribunal shall decide on an expedited basis an objection under paragraph 2 or any objection that the dispute is not within the tribunal's competence, including an objection that the dispute is not within the tribunal's jurisdiction. The tribunal shall suspend any proceedings on the merits and issue a decision or award on the objection(s), stating the grounds therefor, no later than 150 days after the date of the request. However, if a disputing party requests a hearing, the tribunal may take an additional 30 days to issue the decision or award. Regardless of whether a hearing is requested, a tribunal may, on a showing of extraordinary cause, delay issuing its decision or award by an additional brief period, which may not exceed 30 days.
4. When it decides a respondent's objection under paragraph 2 or 3, the tribunal may, if warranted, award to the prevailing disputing party reasonable costs and attorney's fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider whether either the claimant's claim or the respondent's objection was frivolous, and shall provide the disputing parties a reasonable opportunity to comment.
5. A respondent shall not assert as a defence, counterclaim, right of set-off, or for any other reason that the claimant has received or will receive indemnification or other compensation for all or part of the alleged damages pursuant to an insurance or guarantee contract.
6. A tribunal may order an interim measure of protection to preserve the rights of a disputing party, or to ensure that the tribunal's jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the tribunal's jurisdiction. A tribunal shall not order attachment or enjoin the application of a measure alleged to constitute a breach referred to in Article 10.20. For the purposes of this paragraph, an order includes a recommendation.
7. In any arbitration conducted under this Section, on the request of a disputing party, a tribunal shall, before issuing a decision or award on liability, transmit its proposed decision or award to the disputing parties and non-disputing Party. Within 60 days of the tribunal transmitting its proposed decision or award, the disputing parties may submit written comments to the tribunal concerning any aspect of its proposed decision or award. The tribunal shall consider any such comments and issue its decision or award not later than 45 days after the expiration of the 60 day comment period.
8. The interim review procedure of disputing parties for the proposed decision or award in paragraph 7 shall not apply in any arbitration conducted pursuant to this Section for which an appeal has been made available pursuant to paragraph 9.
9. If a separate multilateral agreement enters into force between the Parties that establishes an appellate body for the purposes of reviewing awards rendered by tribunals constituted pursuant to international trade or investment arrangements to hear investment disputes, the Parties shall strive to reach an agreement that would have such appellate body review decisions and awards rendered under this Article and Article 10.30 in arbitrations commenced after the multilateral agreement enters into force between the Parties.
10. Unless the disputing parties otherwise agree, consistent with the applicable arbitration rules, English and Korean shall be the official languages to be used in the entire arbitration proceedings, including all hearings, submissions, decisions, and awards.

Article 10.27. Transparency of Arbitral Proceedings

1. Subject to paragraphs 2 through 4, the respondent shall, after receiving the following documents, promptly transmit them to the non-disputing Party and make them publicly available:
(a) the notice of intent;
(b) the notice of arbitration;
(c) pleadings, memorials, and briefs submitted to the tribunal by a disputing party and any written submissions submitted pursuant to Articles 10.25.3 and 10.26.1;
(d) minutes or transcripts of hearings of the tribunal, where available; and
(e) orders, awards, and decisions of the tribunal.
2. The tribunal shall conduct hearings open to the public and shall determine, in consultation with the disputing parties, the appropriate logistical arrangements. However, any disputing party that intends to use information designated as protected information in a hearing shall so advise the tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure which may include closing the hearing for the duration of any discussion of protected information.
3. Nothing in this Section, including paragraph 4(d), requires a respondent to disclose protected information or to furnish or allow access to information that it may withhold in accordance with Article 20.2 (Security Exceptions) or 20.7 (Disclosure of Information).
4. Any protected information that is submitted to the tribunal shall be protected from disclosure in accordance with the following procedures:
(a) subject to subparagraph (d), neither the disputing parties nor the tribunal shall disclose to any non-disputing Party or to the public any protected information where the disputing party that provided the information clearly designates it in accordance with subparagraph (b);
(b) any disputing party claiming that certain information constitutes protected information shall clearly designate the information according to any schedule set by the tribunal;
(c) a disputing party shall, according to any schedule set by the tribunal, submit a redacted version of the document that does not contain the information. Only the redacted version shall be disclosed in accordance with paragraph 1;
(d) the tribunal, subject to paragraph 3, shall decide any objection by a disputing party regarding the designation of information claimed to be protected information. If the tribunal determines that such information was not properly designated, the disputing party that submitted the information may:
(i) withdraw all or part of its submission containing such information; or
(ii) agree to resubmit complete and redacted documents with corrected designations in accordance with the tribunal's determination and subparagraph (c) In either case, the other disputing party shall, whenever necessary, resubmit complete and redacted documents which either remove the information withdrawn under sub-subparagraph (i) by the disputing party that first submitted the information or redesignate the information consistent with the designation under sub-subparagraph (ii) of the disputing party that first submitted the information; and
(e) On the request of a respondent, the Joint Commission shall consider issuing a decision in writing regarding a determination by the tribunal that information claimed to be protected was not properly designated. If the Joint Commission issues a decision within 60 days of such a request, it shall be binding on the tribunal, and any decision or award issued by the tribunal must be consistent with that decision.
If the Joint Commission does not issue a decision within 60 days, and provided that the non-disputing Party submits a written statement to the Joint Commission within that period that it agrees with the tribunal's determination, the tribunal's determination shall remain in effect.
5. Nothing in this Section requires a respondent to withhold from the public information required to be disclosed by its laws.

Article 10.28. Governing Law

1. Subject to paragraph 2, when a claim is submitted under Article 10.20.1, the tribunal shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law. A decision of the Joint Commission on the interpretation of a provision of this Agreement under Article 18.2.2 shall be binding on a tribunal, and any decision or award issued by a tribunal must be consistent with that decision.

Article 10.29. Consolidation

1. Where two or more claims have been submitted separately to arbitration under Article 10.20.1 and the claims have a question of law or fact in common and arise out of the same events or circumstances, any disputing party may seek a consolidation order in accordance with the agreement of all the disputing parties sought to be covered by the order or the terms of paragraphs 2 through 10.
2. A disputing party that seeks a consolidation order under this Article shall deliver, in writing, a request to the appointing authority and to all the disputing parties sought to be covered by the order and shall specify in the request: (a) the names and addresses of all the disputing parties sought to be covered by the order;
(b) the nature of the order sought; and
(c) the grounds on which the order is sought.
3. Unless the appointing authority finds within 30 days of receiving a request under paragraph 2 that the request is manifestly unfounded, a tribunal shall be established under this Article.
4. Unless all the disputing parties sought to be covered by the order otherwise agree, a tribunal established under this Article shall comprise three arbitrators:
(a) one arbitrator appointed by agreement of the claimants;
(b) one arbitrator appointed by the respondent; and
(c) the presiding arbitrator appointed by the appointing authority, provided, however, that the presiding arbitrator shall not be a national of either Party.
5. If, within 60 days of the appointing authority receives a request made under paragraph 2, the respondent fails or the claimants fail to appoint an arbitrator in accordance with paragraph 4, the appointing authority, on the request of any disputing party sought to be covered by the order, shall appoint the arbitrator or arbitrators not yet appointed. If the respondent fails to appoint an arbitrator, the appointing authority shall endeavour to appoint a national of the respondent, and if the claimants fail to appoint an arbitrator, the appointing authority shall endeavour to appoint a national of the non-disputing Party.
6. Where a tribunal established under this Article is satisfied that two or more claims that have been submitted to arbitration under Article 10.20.1 have a question of law or fact in common, and arise out of the same events or circumstances, the tribunal may, in the interest of fair and efficient resolution of the claims, and after hearing the disputing parties, by order:
(a) assume jurisdiction over, and hear and determine together, all or part of the claims;
(b) assume jurisdiction over, and hear and determine one or more of the claims, the determination of which it believes would assist in the resolution of the others; or
(c) instruct a tribunal previously established under Article 10.23 to assume jurisdiction over, and hear and determine together, all or part of the claims, provided that:
(i) that tribunal, on the request of any claimant not previously a disputing party before that tribunal, shall be reconstituted with its original members, except that the arbitrator for the claimants shall be appointed pursuant to paragraphs 4(a) and 5; and
(ii) that tribunal shall decide whether any prior hearing shall be repeated.
7. Where a tribunal has been established under this Article, a claimant that has submitted a claim to arbitration under Article 10.20.1 and that has not been named in a request made under paragraph 2 may make a written request to the tribunal that it be included in any order made under paragraph 6, and shall specify in the request:
(a) the name and address of the claimant;
(b) the nature of the order sought; and (c) the grounds on which the order is sought. The claimant shall deliver a copy of its request to the appointing authority.
8. A tribunal established under this Article shall conduct its proceedings in accordance with the UNCITRAL Arbitration Rules, except as modified by this Section.
9. A tribunal established under Article 10.23 shall not have jurisdiction to decide a claim, or a part of a claim, over which a tribunal established or instructed under this Article has assumed jurisdiction.
10. On application of a disputing party, a tribunal established under this Article, pending its decision under paragraph 6, may order that the proceedings of a tribunal established under Article 10.23 be stayed, unless the latter tribunal has already adjourned its proceedings.

Article 10.30. Awards

1. Where a tribunal makes a final award against a respondent, the tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest; and
(b) restitution of property, in which case the award shall provide that the respondent may pay monetary damages and any applicable interest in lieu of restitution.
2. For greater certainty, when an investor of a Party submits a claim to arbitration under Article 10.20.1, it may recover only for loss or damage that it has incurred in its capacity as an investor of a Party.
3. A tribunal may also award costs and attorney's fees in accordance with this Section and the applicable arbitration rules.
4. A tribunal shall not award punitive damages.
5. An award made by a tribunal shall have no binding force except between the disputing parties and in respect of the particular case.
6. Subject to paragraph 7 and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay.
7. A disputing party shall not seek enforcement of a final award until:
(a) in the case of a final award made under the ICSID Convention:
(i) 120 days have elapsed from the date the award was rendered and no disputing party has requested revision or annulment of the award; or
(ii) revision or annulment proceedings have been completed; and
(b) in the case of a final award under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules, or the rules selected pursuant to Article 10.20.3(d):
(i) 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside, or annul the award; or
(ii) a court has dismissed or allowed an application to revise, set aside, or annul the award and there is no further appeal.
8. Each Party shall ensure that an award can be recognised and enforced in its jurisdiction. 9. A claim that is submitted to arbitration under this Section shall be considered to arise out of a commercial relationship or transaction for the purposes of Article I of the New York Convention.

Article 10.31. Service of Documents

Delivery of notice and other documents on a Party shall be made to the place named for that Party in Annex 10-D.

Annex 10-A. CUSTOMARY INTERNATIONAL LAW

The Parties confirm their shared understanding that “customary international law” generally and as specifically referenced in Article 10.7 results from a general and consistent practice of States that they follow from a sense of legal obligation. With regard to Article 10.7, the customary international law minimum standard of treatment of aliens refers to all customary international law principles that protect the economic rights and interests of aliens.

Annex 10-B. EXPROPRIATION

1. An action or a series of actions by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right in an investment.

2. Expropriation may be either direct or indirect:

(a) direct expropriation occurs when a Party takes an investor’s property outright, by nationalisation or other direct expropriation through formal transfer of title or outright seizure; and

(b) indirect expropriation occurs when a Party takes an investor’s property through an action or a series of actions which have an effect equivalent to direct expropriation, without formal transfer of title or outright seizure.

3. The determination of whether an action or a series of actions by a Party, in a specific

fact situation, constitutes an indirect expropriation, requires a case-by-case, fact-based inquiry that considers, among other factors:

(a) the economic impact of the government action, although the fact that an action or a series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred;

(b) whether the government action breaches the government’s prior binding written commitment to the investor whether by contract, licence or other legal document; and

(c) the character of the government action including its objectives and context. (1)

4. In order to constitute indirect expropriation, the Party's deprivation of the investor's property must be so severe in the light of its purpose that it cannot be reasonably viewed as having been adopted and applied in good faith.

5. Non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, the environment, and real estate price stabilisation (through, for example, measures to improve the housing conditions for low-income households), do not constitute indirect expropriations. (2) 

Annex 10-C. SUBMISSION OF A CLAIM TO ARBITRATION

Korea

1. Notwithstanding Article 10.22.2, an investor of New Zealand shall not submit to arbitration under Section B a claim that Korea has breached an obligation under Section A, if the investor has alleged that breach of an obligation under Section A in any proceedings before a court or administrative tribunal of Korea.

2. For greater certainty, where an investor of New Zealand makes an allegation that Korea has breached an obligation under Section A before a court or administrative tribunal of Korea, that election shall be final, and the investor shall not thereafter allege that breach in an arbitration under Section B.

Annex 10-D. SERVICE OF DOCUMENTS ON A PARTY UNDER SECTION B

Korea

Notices and other documents in disputes under Section B shall be served on Korea by delivery to:

International Legal Affairs Division

Ministry of Justice of the Republic of Korea Building #1, Government Complex-Gwacheon 47, Gwanmun-ro, Gwacheon-si, Gyeonggi-do Republic of Korea

New Zealand

Notices and other documents in disputes under Section B shall be served on New Zealand by delivery to:

The Secretary

Ministry of Foreign Affairs and Trade 195 Lambton Quay

Private Bag 18-901

Wellington

New Zealand

Annex 10-E. TAXATION AND EXPROPRIATION

The determination of whether a taxation measure, in a specific fact situation, constitutes an expropriation requires a case-by-case, fact-based inquiry that considers all relevant factors relating to the investment, including the factors listed in Annex 10-B and the following considerations:

(a) the imposition of taxes does not generally constitute an expropriation. The mere introduction of a new taxation measure or the imposition of a taxation measure in more than one jurisdiction in respect of an investment generally does not in and of itself constitute an expropriation;

(b) a taxation measure that is consistent within internationally recognised tax policies, principles, and practices should not constitute an expropriation. In particular, a taxation measure aimed at preventing the avoidance or evasion of taxation measures generally does not constitute an expropriation;

(c) a taxation measure that is applied on a non-discriminatory basis, as opposed to a taxation measure that is targeted at investors of a particular nationality or at specific taxpayers, is less likely to constitute an expropriation; and

(d) a taxation measure generally does not constitute an expropriation if it was already in force when the investment was made and information about the measure was publicly available.

Chapter 11. Intellectual Property Rights

Article 11.1. Definitions

For the purposes of this Chapter:
intellectual property refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the TRIPS Agreement, namely copyright and related rights; trademarks; geographical indications; industrial designs; patents; layout designs (topographies) of integrated circuits; protection of undisclosed information; and also includes the protection of plant varieties.

Article 11.2. Basic Principles

1. The Parties recognise the importance of intellectual property in promoting economic and social development, particularly in the digital economy, technological innovation and trade.
2. The Parties recognise the need to achieve a balance between the rights of right holders and the legitimate interests of users and the community with regard to protected subject matter.

Article 11.3. General Provisions

1. Each Party shall provide in its territory to the nationals of the other Party adequate and effective protection and enforcement of intellectual property rights, while ensuring that measures to enforce those rights do not themselves become barriers to legitimate trade.
2. A Party may provide for more extensive protection and enforcement of intellectual property rights under its law than this Chapter requires, provided that the additional protection and enforcement are not inconsistent with this Chapter. 3. The Parties affirm their existing rights and obligations under the TRIPS Agreement and any other multilateral agreement relating to intellectual property to which both Parties are party.
4. In respect of all categories of intellectual property covered by this Chapter, each Party shall accord to the nationals of the other Party treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property rights and any benefits derived from such rights. (1)
5. The obligation provided for in paragraph 4 is subject to:
(a) the limitations and exceptions provided in the TRIPS Agreement and those multilateral agreements concluded under the auspices of World Intellectual Property Organization (hereinafter referred to as "WIPO"); and
(b) the relevant reservations permitted by those multilateral agreements concluded under the auspices of WIPO.
6. Each Party shall establish and maintain transparent intellectual property rights regimes and systems that:
(a) provide certainty over the protection and enforcement of intellectual property rights;
(b) minimise the administrative costs required for businesses to comply with its intellectual property system; and
(c) facilitate international trade through the dissemination of ideas, technology and creative works.
7. The Parties shall be free to establish their own regime for the exhaustion of intellectual property rights.

Article 11.4. Trademarks

1. Neither Party shall require, as a condition of registration, that trademarks be visually perceptible, nor shall either Party deny registration of a trademark solely on the grounds that its sign is composed of a sound or a scent. (2)
2. Each Party shall provide that trademarks shall include collective marks and certification marks.
3. Each Party shall provide that the owner of a registered trademark shall have the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs, at least for goods or services that are identical or similar to those goods or services with respect to which the owner's trademark is registered, where such use would result in a likelihood of confusion. In the case of the use of an identical sign, for identical goods or services, the likelihood of confusion shall be presumed.
4. Each Party may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interests of the owner of the trademark and of third parties.
5. Neither Party shall require, as a condition for determining that a trademark is a well-known mark, that the trademark has been registered in the territory of that Party or in another jurisdiction. Additionally, neither Party shall deny remedies or relief with respect to well-known marks solely because of the lack of:
(a) a registration;
(b) inclusion on a list of well-known marks; or
(c) prior recognition of the trademark as well-known.
6. Article 6bis of the Paris Convention for the Protection of Industrial Property, done on 20 March 1883 shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known trademark,3 whether registered or not, provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the trademark, and provided that the interests of the owner of the trademark are likely to be damaged by such use.
7. Each Party shall provide for appropriate measures to refuse or cancel the registration and prohibit the use of a trademark that is identical or similar to a well-known trademark, for related goods or services, if the use of that trademark is likely to cause confusion, or mistakes, or deception, risk of association of the trademark with a well-known trademark, or constitutes unfair exploitation of the reputation of the well-known trademark.
8. Each Party shall provide a system for the registration of trademarks in which the reasons for a refusal to register a trademark shall be communicated in writing and may be provided electronically to the applicant, who will have the opportunity to contest such refusal and to appeal a final refusal judicially. Each Party shall provide that third parties may oppose the registration of a trademark. Each Party shall provide a publicly available electronic database of trademark applications and trademark registrations.
9. Each Party shall provide that initial registration and each renewal of a registration of a trademark shall be for a term of no less than 10 years.
10. Neither Party shall require recordation of trademark licenses to establish the validity of the license, to assert any rights in a trademark, or for other purposes.
11. Each Party shall provide a system that permits owners to assert rights in trademarks and interested parties to challenge rights in trademarks through administrative or judicial means, or both.

Article 11.5. Copyright and Related Rights

1. Each Party shall comply with Articles 1 through 21 of the Berne Convention for the Protection of Literary and Artistic Works, done at 24 July 1971 (hereinafter referred to as the "Berne Convention") and the Appendix thereto. However, the Parties shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of the Berne Convention or the rights derived therefrom.
2. Each Party shall provide that authors, (4) producers of phonograms, and broadcasting organisations (5) have the right to authorise or prohibit all reproduction of their works, phonograms and broadcasts (6) in any manner or form.
3. Each Party shall provide performers with the right to prohibit the reproduction of a fixation of a performance (7) where such fixation has been made without the authorisation of the performer.
4. Each Party may provide for limitations or exceptions to the rights described in paragraphs 2 and 3 in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
5. Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by copyright and related rights holders in connection with the exercise of their rights under each Party's domestic laws and that restrict acts, in respect of their works, which are not authorised by the copyright and related rights holders concerned or permitted by law.
6. Each Party may provide for exceptions and limitations to measures implementing paragraph 5 in accordance with its domestic laws and the relevant international agreements to which it is party.
7. Each Party shall provide for adequate and effective legal protection against any person knowingly performing any of the following acts knowing, or having reasonable grounds to know, that by doing so, it will induce, enable, facilitate or conceal an infringement of any copyright or related rights as provided by the domestic laws of the Party:
(a) the removal or alteration of any electronic rights management information (8) without authority; or
(b) the distribution, importation for distribution, broadcasting, communication or making available to the public, without authority, of works or copies of the works or other subject matter protected under this Chapter knowing that electronic rights management information has been removed or altered without authority.

Article 11.6. Enforcement

1. Each Party shall ensure that the measures, procedures and remedies are available under the Parties' legislation so as to permit effective action against any act of infringement of intellectual property rights covered by this Chapter.
2. Each Party shall provide for effective enforcement procedures to curtail repetitive copyright and related rights infringement by means of the internet.

Article 11.7. Contact Points

The Parties shall designate contact points to facilitate communications between the Parties on any matter covered by this Chapter, and provide details of such contact points to the other Party. The Parties shall notify each other promptly of any amendments to the details of their contact points.

Article 11.8. Exchange of Information

1. A Party shall, on the request of the other Party, provide information relating to:
(a) any new laws that enter into effect in relation to intellectual property;
(b) changes to, and developments in, the implementation of intellectual property systems aimed at promoting the effective and efficient registration or grant of intellectual property rights; and
(c) developments in approaches to intellectual property rights enforcement.
2. Any information provided under this Article shall be conveyed through the contact points referred to in Article 11.7.
8 For the purposes of this Chapter, "rights management information" means any information provided by right holders which identifies the work or other subject matter covered by this Chapter, the author or any other right holder, or information about the terms and conditions of use of the work or other subject matter, and any numbers or codes that represent such information.

Article 11.9. Co-operation

1. The Parties agree to co-operate with a view to ensuring effective protection of intellectual property rights and eliminating trade in goods or services infringing intellectual property rights subject to their respective laws, rules, regulations and government policies.
2. The Parties shall encourage and facilitate the development of contacts and co operation between the Parties' respective government agencies, educational institutions, and other organisations with an interest in the field of intellectual property rights.
3. A Party shall, on the request of the other Party, give due consideration to any specific co-operation proposal made by the other Party relating to the protection or enforcement of intellectual property rights.
4. Any proposal for co-operation shall be conveyed through the contact points referred to in Article 11.7.

Article 11.10. Genetic Resources, Traditional Knowledge and Folklore

Subject to each Party's international obligations, each Party may establish appropriate measures to protect genetic resources, traditional knowledge and traditional cultural expressions or folklore.

Article 11.11. Consultations

1. A Party may at any time request consultations with the other Party with a view to seeking a timely and mutually satisfactory resolution in relation to any intellectual property issue, including enforcement, within the scope of this Chapter.
2. Such consultations shall be conducted through the Parties' designated contact points, and shall commence within 30 days of the receipt of the request for consultations, unless the Parties mutually determine otherwise. In the event that consultations fail to resolve any such issue, the requesting Party may refer the issue to the Joint Commission for consideration.
3. Any action taken pursuant to paragraphs 1 and 2 is without prejudice to the rights and obligations of the Parties under Chapter 19 (Dispute Settlement) or under the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes.

Chapter 12. Competition and Consumer Policy

Article 12.1. Objectives

1. The Parties recognise the strategic importance of creating and maintaining open and competitive markets that promote economic efficiency and consumer welfare.
2. To this end each Party is committed to reducing and removing impediments to trade and investment including through:
(a) application of competition statutes to all forms of business activity, including both private and public business activities; and
(b) application of competition statutes in a manner that does not discriminate between or among economic entities, nor between origin and destination of the production.
3. The Parties recognise that anti-competitive business conduct may frustrate the benefits arising from this Agreement. The Parties undertake to apply their respective competition laws in a manner consistent with this Chapter so as to avoid the benefits of this Agreement in terms of the liberalisation process in goods and services being diminished or cancelled out by anticompetitive business conduct.

Article 12.2. Definitions

For the purposes of this Chapter: anti-competitive business conduct means activities that restrict or distort competition in the territory of a Party as a whole or in a substantial part thereof, such as:
(a) anti-competitive agreements, concerted practices or arrangements between enterprises and decisions by associations of enterprises as specified in the Parties' respective competition laws;
(b) any abuse of market power by one or more enterprises of a dominant position; and
(c) mergers or other structural combinations of enterprises which significantly impede effective competition, particularly as a result of the creation or reinforcement of a dominant position in the territory.
These activities may relate to goods and services and may be carried out by any enterprise irrespective of the ownership of that enterprise; competition authority means:
(a) for Korea, the Korea Fair Trade Commission or its successor; and
(b) for New Zealand, the New Zealand Commerce Commission or its successor; competition laws means:
(a) for Korea, the Monopoly Regulation and Fair Trade Act and its implementing regulations and amendments;
(b) for New Zealand, the Commerce Act 1986 and its implementing regulations and amendments; and
(c) any changes that the above mentioned instruments may undergo after the entry into force of this Agreement; and consumer protection laws means:
(a) for Korea, the Framework Act on Consumer, the Fair Labeling and Advertising Act, the Consumer Protection in Electronic Commerce, Etc. Act and their implementing regulations and amendments;
(b) for New Zealand, the Fair Trading Act 1986 and its implementing regulations and amendments; and
(c) any changes that the above mentioned instruments may undergo after the entry into force of this Agreement.

Article 12.3. Implementation

1. Each Party shall maintain competition laws that proscribe anti-competitive business conduct with the objective of promoting economic efficiency and consumer welfare. These laws and their enforcement shall be consistent with the principles of transparency, comprehensiveness, non-discrimination and procedural fairness.
2. Each Party shall maintain an authority or authorities responsible for the enforcement of its competition laws.
3. Each Party shall provide any person subject to the imposition of a sanction or remedy for violation of its competition laws with the opportunity to be heard and to present evidence, and to seek review of the sanction or remedy in a court of that Party.
4. With regard to transparency, each Party shall make available to the other Party information concerning exemptions provided under its competition laws. Any such exemptions shall be transparent and undertaken on the grounds of public policy or public interest.

Article 12.4. Co-operation

1. The Parties recognise the importance of co-operation and co-ordination between their respective authorities to promote effective enforcement of competition laws and to fulfil the objectives of this Agreement.
2. Accordingly, the Parties shall co-operate in relation to the enforcement of their respective competition laws and policy, including through technical co-operation, notification, consultation, and exchange of information.

Article 12.5. Notification

1. Each Party, through its contact points referred to in Article 12.8, shall notify the competition authority of the other Party of an enforcement activity regarding anti-competitive conduct if it:
(a) is liable to substantially affect the other Party's important interests;
(b) relates to restrictions on competition which are liable to have a direct and substantial effect in the territory of the other Party; or
(c) concerns anti-competitive conduct taking place principally in the territory of the other Party.
2. Provided that it is not contrary to the competition laws of the Party and does not affect any investigation being carried out, notification shall be given at an early stage of the enforcement activity.

Article 12.6. Consultations and Exchange of Information

1. To foster mutual understanding or to address specific matters that arise under this Chapter, the Parties shall, on the request of either Party, enter into consultations on any competition-related issue adversely affecting trade or investment between Parties.
2. Without prejudice to its full freedom of ultimate decision, the Party to which a request for consultations has been addressed shall endeavour to give full and sympathetic consideration to the concerns expressed by the requesting Party.
3. Each Party shall, on the request of the other Party, endeavour to provide information to the other Party to facilitate effective enforcement of their respective competition laws, provided that it is subject to the standards of confidentiality applicable in each Party.
4. No Party shall, except to comply with its domestic legal requirements, release or disclose such information or documents to any person without the written consent of the Party that provided such information or documents. Where the disclosure of such information or documents is necessary to comply with the domestic legal requirements of a Party, that Party shall notify the other Party before such disclosure is made. The Parties may agree to the public release of information that they do not consider confidential.

Article 12.7. Technical Co-operation

The Parties may, subject to resources, provide each other with technical co-operation related to the implementation of competition laws and policy. Such technical co-operation activities may include:
(a) exchange of personnel for training purposes;
(b) participation of personnel as lecturers or consultants at training courses on competition laws and policies organised by the competition authorities of the Parties; and
(c) any other form of technical co-operation as mutually decided by the competition authorities of the Parties.

Article 12.8. Contact Points

Each Party shall designate one or more contact points for the purposes of this Chapter and shall provide details of such contact points to the other Party. The Parties shall notify each other promptly of any changes to the details of their contact points.

Article 12.9. Cross-border Consumer Protection

1. The Parties recognise the importance of co-operation and co-ordination on matters related to their consumer protection laws in order to enhance consumer welfare. Accordingly, the Parties shall co-operate, in appropriate cases of mutual concern, in the enforcement of their consumer protection laws, including in such areas as the monitoring of international scams.
2. Nothing in this Article shall limit the discretion of the competition authority of a Party to decide whether to take action in response to a request by an authority of the other Party, nor shall it preclude any of these authorities from taking action with respect to any particular matter.
3. The Parties affirm their commitment to provide protection in their territories from deceptive practices or the use of false or misleading descriptions in trade. 4. Each Party shall provide the legal means under its domestic laws to prevent false, deceptive or misleading labelling of products within its territory.

Article 12.10. Dispute Settlement

Neither Party shall have recourse to any dispute settlement procedures under this Agreement for any matters arising under this Chapter.

Chapter 13. Government Procurement

Article 13.1. General Provisions and Objectives

1. The Parties recognise their shared interest in promoting international liberalisation of government procurement markets and continued co-operation on procurement matters in APEC and other appropriate international fora.
2. The Parties recognise the importance of conducting government procurement in accordance with the fundamental principles of the APEC Non-Binding Principles on Government Procurement of transparency, value for money, open and effective competition, fair dealing, accountability and due process, and non-discrimination, in order to maximise competitive opportunities for suppliers of the Parties.

Article 13.2. Definitions

For the purposes of this Chapter:
build-operate-transfer contract and public works concession contract mean any contractual arrangement the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plant, buildings, facilities or other government-owned works and under which, as consideration for a supplier's execution of a contractual arrangement, a procuring entity grants to the supplier, for a specified period of time, temporary ownership or a right to control and operate, and demand payment for the use of such works for the duration of the contract;
commercial goods or services means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes; construction service means a service that has as its objective the realisation by whatever means of civil or building works, based on Division 51 of the United Nations Provisional Central Product Classification (hereinafter referred to as "CPC");
electronic auction means an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tenders;
in writing or written means any worded or numbered expression that can be read, reproduced and later communicated. It may include electronically transmitted and stored information;
limited tendering means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
measure means any law, regulation, procedure, administrative guidance or practice, or any action of a procuring entity relating to a covered procurement;
multi-use list means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the entity intends to use more than once;
offset means any condition or undertaking that encourages local development or improves a Party`s balance of payments accounts, such as the use of domestic content, the licensing of technology, investment, counter-trade and similar action or requirement;
open tendering means a procurement method whereby all interested suppliers may submit a tender;
person means a natural person or a legal person;
procuring entity means an entity covered in Annex 13-A;
publish means to disseminate information in an electronic or paper medium that is distributed widely and is readily accessible to the general public;
qualified supplier means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
selective tendering means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
services includes construction services, unless otherwise specified; standard means a document approved by a recognised body that provides for common and repeated use, rules, guidelines or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a good, service, process or production method;
supplier means a person or group of persons that provides or could provide goods or services; and technical specification means a tendering requirement that:
(a) lays down the characteristics of goods or services to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
(b) addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service.

Article 13.3. Scope and Coverage

Application of Agreement
1. This Chapter applies to any measure regarding covered procurement, whether or not it is conducted exclusively or partially by electronic means.
2. For the purposes of this Chapter, "covered procurement" means procurement for governmental purposes: (a) of goods, services, or any combination thereof:
(i) as specified in Annex 13-A; and
(ii) not procured with a view to commercial sale or resale, or for use in the production or supply of goods or services for commercial sale or resale;
(b) by any contractual means, including purchase;
lease; rental or hire purchase, with or without an option to buy; and build-operate-transfer contracts; and public works concession contracts;
(c) for which the value, as estimated in accordance with this Article, equals or exceeds the relevant threshold specified in Annex 13-A, at the time of publication of a notice in accordance with Article 13.11;
(d) by a procuring entity; and
(e) that is not otherwise excluded from coverage under this Chapter.
3. Except where otherwise provided in Annex 13-A, this Chapter does not apply to:
(a) the acquisition or rental of land, existing buildings or other immovable property or the rights thereon;
(b) non-contractual agreements or any form of assistance that a Party provides, including co-operative agreements, grants, loans, equity infusions, guarantees and fiscal incentives;
(c) the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;
(d) public employment contracts; or
(e) procurement conducted:
(i) for the specific purpose of providing international assistance, including development aid;
(ii) under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project; or
(iii) under the particular procedure or condition of an international organisation, or funded by international grants, loans or other assistance where the applicable procedure or condition would be inconsistent with this Chapter.
4. Where a procuring entity, in the context of covered procurement, requires persons not covered under Annex 13-A to procure in accordance with particular requirements, Article 13.4 shall apply mutatis mutandis to such requirements. Valuation
5. In estimating the value of a procurement for the purposes of ascertaining whether it is a covered procurement, a procuring entity shall:
(a) neither divide a procurement into separate procurements nor select or use a particular valuation method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Chapter; and
(b) include the estimated maximum total value of the procurement over its entire duration, whether awarded to one or more suppliers, taking into account all forms of remuneration, including:
(i) premiums, fees, commissions and interest; and
(ii) where the procurement provides for the possibility of options, the total value of such options.
6. Where an individual requirement for a procurement results in the award of more than one contract, or in the award of contracts in separate parts (hereinafter referred to as "recurring contracts"), the calculation of the estimated maximum total value shall be based on:
(a) the value of recurring contracts of the same type of good or service awarded during the preceding 12 months or the procuring entity`s preceding fiscal year, adjusted, where possible, to take into account anticipated changes in the quantity or value of the good or service being procured over the following 12 months; or
(b) the estimated value of recurring contracts of the same type of good or service to be awarded during the 12 months following the initial contract award or the procuring entity`s fiscal year.
7. In the case of procurement by lease, rental or hire purchase of goods or services, or procurement for which a total price is not specified, the basis for valuation shall be:
(a) in the case of a fixed-term contract:
(i) where the term of the contract is 12 months or less, the total estimated maximum value for its duration; or
(ii) where the term of the contract exceeds 12 months, the total estimated maximum value, including any estimated residual value;
(b) where the contract is for an indefinite period, the estimated monthly instalment multiplied by 48; or
(c) where it is not certain whether the contract is to be a fixed-term contract, subparagraph (b) shall be used.

Article 13.4. General Principles

Non-Discrimination
1. With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of the other Party and to the suppliers of the other Party offering the goods or services of either Party, treatment no less favourable than the treatment the Party, including its procuring entities, accords to domestic goods, services and suppliers.
2. With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall not:
(a) treat a locally established supplier less favourably than another locally established supplier on the basis of the degree of foreign affiliation or ownership; or
(b) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of the other Party.
3. When conducting covered procurement by electronic means, a procuring entity shall:
(a) ensure that the procurement is conducted using information technology systems and software, including those related to authentication and encryption of information, that are generally available and interoperable with other generally available information technology systems and software; and
(b) maintain mechanisms that ensure the integrity of requests for participation and tenders, including establishment of the time of receipt and the prevention of inappropriate access. Use of Electronic Means Conduct of Procurement
4. A procuring entity shall conduct covered procurement in a transparent and impartial manner that:
(a) is consistent with this Chapter, using methods such as open tendering, selective tendering and limited tendering;
(b) avoids conflicts of interest; and
(c) prevents corrupt practices. Rules of Origin
5. For the purposes of covered procurement, a Party shall not apply rules of origin to goods or services imported from or supplied from the other Party that are different from the rules of origin the Party applies at the same time in the normal course of trade to imports or supplies of the same goods or services from the same Party. Offsets
6. With regard to covered procurement, a Party, including its procuring entities, shall not seek, take account of, impose, or enforce any offset. Measures Not Specific to Procurement
7. Paragraphs 1 and 2 shall not apply to:
(a) customs duties and charges of any kind imposed on, or in connection with, importation;
(b) the method of levying such duties and charges; or
(c) other import regulations or formalities and measures affecting trade in services, other than measures governing covered procurement.

Article 13.5. Exceptions to the Chapter

1. Nothing in this Chapter shall be construed to prevent any Party from taking any action or not disclosing any information which it considers necessary for the protection of its essential security interests relating to the procurement of arms, ammunition or war materials, or to procurement indispensable for national security or for national defence purposes.
2. Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties where the same conditions prevail, or a disguised restriction on trade between the Parties, nothing in this Chapter shall be construed to prevent a Party from adopting or maintaining measures:
(a) necessary to protect public morals, order, or safety;
(b) necessary to protect human, animal or plant life or health;
(c) necessary to protect intellectual property; or
(d) relating to goods or services of persons with disabilities, of philanthropic or not for profit institutions, or of prison labour.
3. The Parties understand that paragraph 2(b) includes environmental measures necessary to protect human, animal or plant life or health.

Article 13.6. Disclosure of Information

Provision of Information to Parties
1. On the request of the other Party, a Party shall provide promptly any information necessary to determine whether a procurement was conducted fairly, impartially and in accordance with this Chapter, including information on the characteristics and relative advantages of the successful tender. In cases where release of the information would prejudice competition in future tenders, the Party that receives that information shall not disclose it to any supplier, except after consultation with, and obtaining agreement of, the Party that provided the information. Non-Disclosure of Information
2. Notwithstanding any other provision of this Chapter, a Party, including its procuring entities, shall not provide to any particular supplier information that might prejudice fair competition between suppliers. (1)
3. Nothing in this Chapter shall be construed to require a Party, including its procuring entities, authorities and review bodies, to disclose confidential information where disclosure:
(a) would impede law enforcement; (b) might prejudice fair competition between suppliers;
(c) would prejudice the legitimate commercial interests of particular persons, including the protection of intellectual property; or
(d) would otherwise be contrary to the public interest.

Article 13.7. Publication of Information on Procurement Measures