(b) with regard to paragraph 20.88.7, "except to the extent consistent with the technical measures identified in paragraph 6(b)" does not apply.
Chapter 21. COMPETITION POLICY
Article 21.1. Competition Law and Authorities
1. Each Party shall maintain national competition laws that proscribe anticompetitive business conduct to promote competition in order to increase economic efficiency and consumer welfare, and shall take appropriate action with respect to that conduct.
2. Each Party shall endeavor to apply its national competition laws to all commercial activities in its territory. This does not prevent a Party from applying its national competition laws to commercial activities outside its borders that have an appropriate nexus to its jurisdiction.
3. Each Party may provide for certain exemptions from the application of its national competition laws provided that those exemptions are transparent, established in its law, and based on public interest or public policy grounds.
4. Each Party shall maintain a national competition authority or authorities (national competition authorities) responsible for the enforcement of its national competition laws.
5. Each Party shall ensure that the enforcement policies of its national competition authorities include:
(a) treating persons of another Party no less favorably than persons of the Party in like circumstances;
(b) considering, if applicable, the effect of enforcement activities on related enforcement activities by a national competition authority of another Party; and
(c) limiting remedies relating to conduct or assets outside the Party's territory to situations in which there is an appropriate nexus to harm or threatened harm affecting the Partyâs territory or commerce.
Article 21.2. Procedural Fairness In Competition Law Enforcement
1. For the purposes of this Article, "enforcement proceeding" means a judicial or administrative proceeding following an investigation into the alleged violation of the national competition laws and does not include matters occurring before a grand jury.
2. Each Party shall ensure that its national competition authorities:
(a) provide transparency, including in writing, regarding the applicable competition laws, regulations, and procedural rules pursuant to which national competition law investigations and enforcement proceedings are conducted;
(b) conduct their investigations subject to definitive deadlines or within a reasonable time frame, if the investigations are not subject to definitive deadlines;
(c) afford to a person a reasonable opportunity to be represented by legal counsel, including by:
(i) allowing, at the person's request, counsel's participation in all meetings or proceedings between the national competition authority and the person. This sub-subparagraph does not apply to matters occurring before a grand jury, ex parte proceedings, or to searches conducted pursuant to judicial warrants, and
(ii) recognizing a privilege, as acknowledged by its law, if not waived, for lawful confidential communications between the counsel and the person if the communications concern the soliciting or rendering of legal advice; and
(d) with respect to reviews of merger transactions, permit early consultations between the national competition authority and the merging persons to provide their views concerning the transaction, including on potentially dispositive issues.
3. Each Party shall ensure that all information that its national competition authorities obtain during investigations and reviews, and that its law protects as confidential or privileged is not disclosed, subject to applicable legal exceptions.
4. Each Party shall ensure that its national competition authorities do not state or imply in any public notice confirming or revealing the existence of a pending or ongoing investigation against a particular person that that person has in fact violated the Party's national competition laws.
5. Each Party shall ensure that its national competition authorities (1) have the ultimate burden of establishing the legal and factual basis for an alleged violation in an enforcement proceeding; however, a Party may require that a person against whom that allegation is made be responsible for establishing certain defenses to the allegation.
6. Each Party shall ensure that all final decisions in contested civil or administrative matters finding a violation of its national competition laws are in writing and set out the findings of fact and conclusions of law on which they are based. Each Party shall make public those final decisions, with the exception of any confidential material contained therein.
7. Each Party shall ensure that before it imposes a sanction or remedy against a person for a violation of its national competition laws, it affords the person a reasonable opportunity to:
(a) obtain information regarding the national competition authority's concerns, including identification of the specific competition laws alleged to have been violated;
(b) engage with the relevant national competition authority at key points on significant legal, factual, and procedural issues;
(c) have access to information that is necessary to prepare an adequate defense if the person contests the allegations in an enforcement proceeding; however, a national competition authority is not obliged to produce information that is not already in its possession. If a Party's national competition authority (2) introduces or will introduce confidential information in an enforcement proceeding, the Party shall, as permissible under its law, allow the person under investigation or its legal counsel timely access to that information;
(d) be heard and present evidence in its defense, including rebuttal evidence, and, whenever relevant, the analysis of a properly qualified expert;
(e) cross-examine any witness testifying in an enforcement proceeding; and
(f) contest an allegation that the person has violated national competition laws before an impartial judicial or administrative authority, provided that in the case of an administrative authority, the decision-making body must be independent of the unit offering evidence in support of the allegation;
except that a Party may provide for these opportunities within a reasonable time after it imposes an interim measure.
8. Each Party shall provide a person that is subject to the imposition of a fine, sanction, or remedy for violation of its national competition laws with the opportunity to seek judicial review by a court or independent tribunal, including review of alleged substantive or procedural errors, unless the person voluntarily agreed to the imposition of the fine, sanction, or remedy.
9. Each Party shall ensure that criteria used for calculating a fine for a violation of national competition laws are transparent. If a Party imposes a fine as a penalty for a non-criminal violation of its national competition laws that is based on the person's revenue or profit, it shall ensure that the calculation considers revenue or profit relating to the Party's territory.
10. Each Party's national competition authority shall maintain measures to preserve all relevant evidence, including exculpatory evidence, that it collected as part of an enforcement proceeding until the review is exhausted.
Article 21.3. Cooperation
1. The Parties recognize the importance of cooperation and coordination between their respective national competition authorities to foster effective competition law enforcement in the free trade area. Accordingly, the Parties' national competition authorities shall endeavor to cooperate in relation to their enforcement laws and policies, including through investigative assistance, notification, consultation, and exchange of information.
2. The Parties shall seek to further strengthen cooperation and coordination between their respective national competition authorities, particularly regarding those commercial practices that hinder market efficiency and reduce consumer welfare within the free trade area.
3. Each Party shall adopt or maintain measures sufficient to permit negotiations of cooperation instruments that may address, among other matters, enhanced information sharing and mutual legal assistance.
4. The Parties' national competition authorities shall seek to cooperate with respect to their competition policies and in the enforcement of their respective national competition laws, which may include coordination of investigations that raise common law enforcement concerns. This cooperation shall be compatible with each Party's law and important interests, in accordance with their law governing legal privilege and disclosure of business secrets and other confidential information, and within reasonably available resources. The Parties' national competition authorities may cooperate on the basis of mechanisms that exist or may be developed.
5. Recognizing that the Parties can benefit by sharing their diverse experience in developing, implementing, and enforcing their national competition laws and policies, the Parties' national competition authorities shall consider undertaking mutually agreed technical cooperation activities, including training programs.
6. The Parties acknowledge the importance of cooperation and coordination internationally and the work of multilateral organizations in this area, including the Competition Committee of the Organisation for Economic Co-operation and Development, and the International Competition Network.
Article 21.4. Consumer Protection
1. The Parties recognize the importance of consumer protection policy and enforcement to creating efficient and competitive markets, and enhancing consumer welfare in the free trade area.
2. Each Party shall adopt or maintain national consumer protection laws or other laws or regulations that proscribe fraudulent and deceptive commercial activities, recognizing that the enforcement of those laws and regulations is in the public interest. The laws and regulations a Party adopts or maintains to proscribe these activities may be civil or criminal in nature.
3. The Parties recognize that fraudulent and deceptive commercial activities increasingly transcend national borders and that cooperation and coordination between the Parties to address these activities effectively is important and in the public interest.
4. The Parties shall promote, as appropriate, cooperation and coordination on matters of mutual interest related to fraudulent and deceptive commercial activities, including in the enforcement of their consumer protection laws through activities such as the exchange of consumer complaints and other enforcement information. That cooperation and coordination may be based on cooperation mechanisms in existence. Each Party shall protect confidential information in accordance with its law, including business information.
5. The Parties shall endeavor to cooperate and coordinate on the matters set out in this Article through the relevant national public bodies or officials responsible for consumer protection policy, law, or enforcement, as determined by each Party and compatible with their respective law and important interests, and within their reasonably available resources.
Article 21.5. Transparency
1. The Parties recognize the value of making competition enforcement and advocacy policies as transparent as possible.
2. On request of another Party, a Party shall make available to the requesting Party public information concerning:
(a) its national competition law enforcement policies and practices; and
(b) exemptions and immunities to its national competition laws, provided that the request specifies the particular good or service and market of concern and includes information explaining how the exemption or immunity may hinder trade or investment between the Parties.
Article 21.6. Consultations
1. In order to foster understanding between the Parties, or to address specific matters that arise under this Chapter, on request of another Party, a Party shall enter into consultations with the requesting Party. In its request, the requesting Party shall indicate, if relevant, how the matter affects trade or investment between the Parties.
2. The Party addressed shall accord full and sympathetic consideration to the concerns of the requesting Party.
3. To facilitate discussion of the matter that is the subject of the consultations, each Party shall endeavor to provide relevant non-confidential, non-privileged information to the other Party. Article 21.7: Non-Application of Dispute Settlement
No Party shall have recourse to dispute settlement under Chapter 14 (Investment) or Chapter 31 (Dispute Settlement) for a matter arising under this Chapter.
Chapter 22. STATE-OWNED ENTERPRISES AND DESIGNATED MONOPOLIES
Article 22.1. Definitions
For the purposes of this Chapter:
Arrangement means the Arrangement on Officially Supported Export Credits, developed within the framework of the Organization for Economic Co-operation and Development (OECD), or a successor undertaking, whether developed within or outside of the OECD framework, that has been adopted by at least 12 original WTO Members that were Participants to the Arrangement as of January 1, 1979;
commercial activities means activities that an enterprise undertakes with an orientation toward profit-making (1) and that result in the production of a good or supply of a service that will be sold to a consumer in the relevant market in quantities and at prices determined by the enterprise; (2)
commercial considerations means price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale, or other factors that would normally be taken into account in the commercial decisions of a privately owned enterprise in the relevant business or industry;
designate means to establish, name, or authorize a monopoly, or to expand the scope of a monopoly to cover an additional good or service;
designated monopoly means a privately owned monopoly that is designated after the date of entry into force of this Agreement and a government monopoly that a Party designates or has designated;
financial services supplier, financial institution, and financial services have the same meaning as in Article 17.1 (Definitions);
government monopoly means a monopoly that is owned, or controlled through ownership interests, by a Party or by another government monopoly;
independent pension fund means an enterprise that is owned, or controlled through ownership interests, by a Party that:
(a) is engaged exclusively in the following activities:
(i) administering or providing a plan for pension, retirement, social security, disability, death, or employee benefits, or any combination thereof solely for the benefit of natural persons who are contributors to such a plan or their beneficiaries, or
(ii) investing the assets of these plans;
(b) has a fiduciary duty to the natural persons referred to in subparagraph (a)(i); and
(c) is not subject to investment direction by the government of the Party; (3)
market means the geographical and commercial market for a good or service;
monopoly means an entity, including a consortium or government agency that, in a relevant market in the territory of a Party, is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of the grant;
non-commercial assistance (4) means assistance that is limited to certain enterprises, and:
(a) "assistance" means the following forms of assistance:
(i) direct transfers of funds or potential direct transfers of funds or liabilities, such as:
(A) grants or debt forgiveness,
(B) loans, loan guarantees, or other types of financing on terms more favorable than those commercially available to that enterprise, or
(C) equity capital inconsistent with the usual investment practice (including for the provision of risk capital) of private investors,
(i) the provision of goods or the supply of services other than general infrastructure, on terms more favorable than those commercially available to the enterprise, or
(ii) the purchase of goods on terms more favorable than those commercially available to the enterprise;
(b) "certain enterprises" means an enterprise or industry or group of enterprises or industries;
(c) "limited to certain enterprises" means that the Party or any of the Party's state enterprises or state-owned enterprises, or a combination thereof:
(i) explicitly limits access to the assistance to certain enterprises,
(ii) provides assistance to a limited number of certain enterprises,
(iii) provides assistance which is predominantly used by certain enterprises,
(iv) provides a disproportionately large amount of the assistance to certain enterprises, or
(v) otherwise favors certain enterprises through the use of its discretion in the provision of assistance; (5) and
(d) assistance that falls under Article 22.6.1, Article 22.6.2, or Article 22.6.3 (Non- Commercial Assistance) shall be deemed to be "limited to certain enterprises";
public service mandate means a government mandate pursuant to which a state-owned enterprise makes available a service, directly or indirectly, to the general public in its territory; (6)
state-owned enterprise means an enterprise that is principally engaged in commercial activities, and in which a Party:
(a) directly or indirectly (7) owns more than 50 percent of the share capital;
(b) controls, through direct or indirect ownership interests, the exercise of more than 50 percent of the voting rights;
(c) holds the power to control the enterprise through any other ownership interest, including indirect or minority ownership; (8) or
(d) holds the power to appoint a majority of members of the board of directors or any other equivalent management body.
Article 22.2. Scope
1. This Chapter applies to the activities of state-owned enterprises, state enterprises, or designated monopolies of a Party that affect or could affect trade or investment between Parties within the free trade area. This Chapter also applies to the activities of state-owned enterprises of a Party that cause adverse effects in the market of a non-Party as provided in Article 22.7 (Adverse Effects).
2. This Chapter does not apply to:
(a) the regulatory or supervisory activities, or monetary and related credit policy and exchange rate policy, of a central bank or monetary authority of a Party;
(b) the regulatory or supervisory activities of a financial regulatory body of a Party, including a non-governmental body, such as a securities or futures exchange or market, clearing agency, or other organization or association, that exercises regulatory or supervisory authority over financial services suppliers; or
(c) activities undertaken by a Party or one of its state enterprises or state-owned enterprises for the purpose of the resolution of a failing or failed financial institution or any other failing or failed enterprise principally engaged in the supply of financial services.
3. This Chapter does not apply to:
(a) an independent pension fund of a Party; or
(b) an enterprise owned or controlled by an independent pension fund of a Party, except:
(i) Article 22.6.1, Article 22.6.2, Article 22.6.4, and Article 22.6.6 (Non-Commercial Assistance) apply only to a Partyâs direct or indirect provision of non-commercial assistance to an enterprise owned or controlled by an independent pension fund, and
(ii) Article 22.6.1, Article 22.6.2, Article 22.6.4, and Article 22.6.6 (Non- Commercial Assistance) apply only to a Partyâs indirect provision of non-commercial assistance through an enterprise owned or controlled by an independent pension fund.
4. This Chapter does not apply to government procurement.
5. Nothing in this Chapter shall be construed to prevent a Party from:
(a) establishing or maintaining a state enterprise or a state-owned enterprise; or
(b) designating a monopoly.
6. Article 22.4 (Non-Discriminatory Treatment and Commercial Considerations), Article 22.6 (Non-Commercial Assistance), and Article 22.10 (Transparency) do not apply to a service supplied in the exercise of governmental authority. (9)
7. Article 22.4.1(b), Article 22.4.(c), Article 22.4.2(b), and Article 22.4.2(c) (Non- Discriminatory Treatment and Commercial Considerations) do not apply to the extent that a Party's state-owned enterprise or designated monopoly makes purchases and sales of goods or services pursuant to:
(a) an existing non-conforming measure that the Party maintains, continues, renews or amends in accordance with Article 14.12.1 (Non-Conforming Measures), Article 15.7.1 (Non-Conforming Measures) or Article 17.10.1 (Non-Conforming Measures), as set out in its Schedule to Annex I or in Section A of its Schedule to Annex II; or
(b) a non-conforming measure that the Party adopts or maintains with respect to sectors, subsectors, or activities in accordance with Article 14.12.2 (Non- Conforming Measures), Article 15.7.2 (Non-Conforming Measures) or Article 17.10.2 (Non-Conforming Measures), as set out in its Schedule to Annex I or in Section B of its Schedule to Annex II.
Article 22.3. Delegated Authority
Consistent with Article 1.3 (Persons Exercising Delegated Governmental Authority), each Party shall ensure that if its state-owned enterprises, state enterprises, or designated monopolies exercise regulatory, administrative, or other governmental authority that the Party has directed or delegated to those entities to carry out, those entities act in a manner that is not inconsistent with that Party's obligations under this Agreement. (10)
Article 22.4. Non-Discriminatory Treatment and Commercial Considerations
1. Each Party shall ensure that each of its state-owned enterprises, when engaging in commercial activities:
(a) acts in accordance with commercial considerations in its purchase or sale of a good or service, except to fulfil the terms of its public service mandate that are not inconsistent with subparagraphs (b) or (c)(ii);
(b) in its purchase of a good or service:
(i) accords to a good or service supplied by an enterprise of another Party treatment no less favorable than it accords to a like good or a like service supplied by enterprises of the Party, of any other Party or of a non-Party, and
(ii) accords to a good or service supplied by an enterprise that is a covered investment in the Party's territory treatment no less favorable than it accords to a like good or a like service supplied by enterprises in the relevant market in the Party's territory that are investments of investors of the Party, of another Party or of a non-Party; and
(c) in its sale of a good or service:
(i) accords to an enterprise of another Party treatment no less favorable than it accords to enterprises of the Party, of any other Party or of a non-Party, and
(ii) accords to an enterprise that is a covered investment in the Party's territory treatment no less favorable than it accords to enterprises in the relevant market in the Party's territory that are investments of investors of the Party, of another Party or of a non-Party. (11)
2. Each Party shall ensure that each of its designated monopolies:
(a) acts in accordance with commercial considerations in its purchase or sale of the monopoly good or service in the relevant market, except to fulfil any terms of its designation that are not inconsistent with subparagraphs (b), (c), or (d);
(b) in its purchase of the monopoly good or service:
(i) accords to a good or service supplied by an enterprise of another Party treatment no less favorable than it accords to a like good or a like service supplied by enterprises of the Party, of any other Party or of a non-Party, and
(ii) accords to a good or service supplied by an enterprise that is a covered investment in the Party's territory treatment no less favorable than it accords to a like good or a like service supplied by enterprises in the relevant market in the Party's territory that are investments of investors of the Party, of another Party or of a non-Party; and
(c) in its sale of the monopoly good or service:
(i) accords to an enterprise of another Party treatment no less favorable than it accords to enterprises of the Party, of any other Party or of a non-Party, and
(ii) accords to an enterprise that is a covered investment in the Party's territory treatment no less favorable than it accords to enterprises in the relevant market in the Party's territory that are investments of investors of the Party, of another Party or of a non-Party; and
(d) does not use its monopoly position to engage in, either directly or indirectly, including through its dealings with its parent, subsidiaries, or other entities the Party or the designated monopoly owns, anticompetitive practices in a non-monopolized market in its territory that negatively affect trade or investment between the Parties.