(d) identify priority projects and policies to develop a modern physical and digital trade- and investment-related infrastructure, and improve the movement of goods and provision of services within the free trade area;
(e) discuss collective action to combat market-distorting practices by non-Parties that are affecting the North American region;
(f) promote cooperative activities for trade and investment between the Parties with respect to innovation and technology, including best practices in their application; and
(g) engage in other activities as the Parties may decide.
6. The Competitiveness Committee shall meet within one year of the date of entry into force of this Agreement, and annually thereafter, unless the Parties decide otherwise.
7. The Competitiveness Committee shall develop a work plan to carry out its functions under paragraphs 4 and 5. The Committee shall submit a report to the Commission with the results that have been achieved under the work plan together with any advice and recommendations, if appropriate, on ways to further enhance the competitiveness of the North American economy. Each Party shall publish the work plan and report of the Committee. The Parties shall undertake the above activities on an annual basis, unless the Parties decide otherwise.
8. In carrying out its functions, the Committee may work with other committees, working groups, and any other subsidiary body established under this Agreement. The Committee may also seek advice from, and consider the work of, appropriate experts. The Committee shall ensure that it does not duplicate the activities of these other bodies.
Article 26.2. Engagement with Interested Persons
Each Party shall establish or maintain an appropriate mechanism to provide regular and timely opportunities for interested persons to provide input on matters relevant to enhancing competitiveness.
Article 26.3. Non-Application of Dispute Settlement
No Party shall have recourse to dispute settlement under Chapter 31 (Dispute Settlement) for a matter arising under this Chapter.
Chapter 27. ANTICORRUPTION
Article 27.1. Definitions
For the purposes of this Chapter:
act or refrain from acting in relation to the performance of official duties includes any use of the public official's position, whether or not within the official's authorized competence;
foreign public official means an individual holding a legislative, executive, administrative or judicial office of a foreign country, at any level of government, whether appointed or elected, permanent or temporary, paid or unpaid, and irrespective of that person's seniority; and an individual exercising a public function for a foreign country, at any level of government, including for a public agency or public enterprise;
IACAC means the existing Inter-American Convention Against Corruption, done at Caracas, Venezuela, on March 29, 1996;
OECD Convention means the existing Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, done at Paris, France, on December 17, 1997;
official of a public international organization means an international civil servant or an individual authorized by a public international organization to act on its behalf;
public enterprise means an enterprise over which a government or governments may, directly or indirectly, exercise a dominant influence; (1)
public official means an individual:
(a) holding a legislative, executive, administrative, or judicial office of a Party, whether appointed or elected, permanent or temporary, paid or unpaid, and irrespective of that person's seniority;
(b) who performs a public function for a Party, including for a public agency or public enterprise, or provides a public service, as defined under that Party's law and as applied in the pertinent area of that Party's law; or
(c) defined as a public official under a Party's law; and
UNCAC means the existing United Nations Convention against Corruption, done at New York, United States, on October 31, 2003.
Article 27.2. Scope
1. This Chapter applies to measures to prevent and combat bribery and corruption relating to any matter covered by this Agreement. (2)
2. The Parties affirm their resolve to prevent and combat bribery and corruption in international trade and investment. Recognizing the need to build integrity within both the public and private sectors and that each sector has complementary responsibilities in this regard, the Parties affirm their adherence to the OECD Convention, with its Annex; the IACAC; and the UNCAC.
3. The Parties reiterate their support for the principles contained in documents developed by APEC and G-20 anticorruption fora aimed at preventing and combating corruption and endorsed by leaders or relevant ministers, including the G20 High Level Principles on Organizing against Corruption; G20 High Level Principles on Corruption and Growth, G20 Guiding Principles on Enforcement of the Foreign Bribery Offence (2013); G20 Guiding Principles to Combat Solicitation; G20 High Level Principles on the Liability of Legal Persons for Corruption, APEC Conduct Principles for Public Officials; and the APEC Principles on the Prevention of Bribery and Enforcement of Anti-Bribery Laws.
4. The Parties also reiterate their support for, and encourage awareness among their private sectors of, available anticorruption compliance guidance including the APEC Code of Conduct for Business: Business Integrity and Transparency Principles for the Private Sector, APEC General Elements of Effective Voluntary Corporate Compliance Programs; and G20 High Level Principles on Private Sector Transparency and Integrity.
5. The Parties recognize that the description of offenses adopted or maintained in accordance with this Chapter, and of the applicable legal defenses or legal principles controlling the lawfulness of conduct, is reserved to each Party's law, and that those offenses shall be prosecuted and punished in accordance with each Party's law.
Article 27.3. Measures to Combat Corruption
1. Each Party shall adopt or maintain legislative and other measures as may be necessary to establish as criminal offenses under its law, in matters that affect international trade or investment, when committed intentionally, by a person subject to its jurisdiction:
(a) the promise, offering, or giving to a public official, directly or indirectly, of an undue advantage for the official or another person or entity, in order that the official act or refrain from acting in relation to the performance of or the exercise of their official duties;
(b) the solicitation or acceptance by a public official, directly or indirectly, of an undue advantage for the official or another person or entity, in order that the official act or refrain from acting in relation to the performance of or the exercise of their official duties;
(c) the promise, offering, or giving to a foreign public official or an official of a public international organization, directly or indirectly, of an undue advantage for the official or another person or entity, in order that the official act or refrain from acting in relation to the performance of or the exercise of their official duties, in order to obtain or retain business or other undue advantage in relation to the conduct of international business; and
(d) the aiding or abetting, or conspiracy in the commission of any of the offenses described in subparagraphs (a) through (c).
2. Each Party shall adopt or maintain legislative and other measures as may be necessary to establish as a criminal offense under its law, in matters that affect international trade or investment, when committed intentionally, by a person subject to its jurisdiction, the embezzlement, misappropriation or another diversion (3) by a public official for their benefit or for the benefit of another person or entity, of property, public or private funds or securities, or any other thing of value entrusted to the public official by virtue of their position.
3. Each Party shall make the commission of an offense described in paragraph 1, 2, or 6 liable to sanctions that take into account the gravity of that offense.
4. Each Party shall adopt or maintain measures as may be necessary, consistent with its legal principles, to establish the liability of legal persons for offenses described in paragraph 1 or 6.
5. Each Party shall disallow the tax deductibility of bribes and, if appropriate, other expenses considered illegal by the Party incurred in furtherance of that conduct.
6. In order to prevent corruption, each Party shall adopt or maintain measures as may be necessary in accordance with its laws and regulations, regarding the maintenance of books and records, financial statement disclosures, and accounting and auditing standards, to prohibit the following acts carried out for the purpose of committing the offenses described in paragraph 1:
(a) the establishment of off-the-books accounts;
(b) the making of off-the-books or inadequately identified transactions;
(c) the recording of non-existent expenditure;
(d) the entry of liabilities with incorrect identification of their objects;
(e) the use of false documents; and
(f) the intentional destruction of bookkeeping documents earlier than foreseen by the law. (4)
7. Each Party shall adopt or maintain measures considered appropriate by the Party to protect against unjustified treatment a person who, in good faith and on reasonable grounds, reports to the competent authorities facts concerning offenses described in paragraph 1, 2, or 6. (5)
8. The Parties recognize the harmful effects of facilitation payments. Each Party shall, in accordance with its laws and regulations:
(a) encourage enterprises to prohibit or discourage the use of facilitation payments; and
(b) take steps to raise awareness among its public officials of its bribery laws, with a view to stopping the solicitation and the acceptance of facilitation payments. (6)
Article 27.4. Promoting Integrity Among Public Officials (7)
1. To fight corruption in matters that affect trade and investment, each Party should promote, among other things, integrity, honesty and responsibility among its public officials. To this end, each Party shall, in accordance with the fundamental principles of its legal system, adopt or maintain:
(a) measures to provide adequate procedures for the selection and training of individuals for public positions considered by the Party to be especially vulnerable to corruption;
(b) measures to promote transparency in the behavior of public officials in the exercise of public functions;
(c) appropriate policies and procedures to identify and manage actual or potential conflicts of interest of public officials;
(d) measures that require senior public officials, and other public officials as considered appropriate by the Party, to make declarations to appropriate authorities regarding, among other things, their outside activities, employment, investments, assets, and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials; and
(e) measures to facilitate reporting by public officials of any facts concerning offenses described in Article 27.3.1, 27.3.2, or 27.3.6 (Measures to Combat Corruption) to appropriate authorities, if those facts come to their notice in the performance of their functions.
2. Each Party shall adopt or maintain codes or standards of conduct for the correct, honorable and proper performance of public functions, and measures providing for disciplinary or other measures, if warranted, against a public official who violates the codes or standards established in accordance with this paragraph.
3. Each Party shall, to the extent consistent with the fundamental principles of its legal system, establish procedures through which a public official accused of an offense described in Article 27.3.1 (Measures to Combat Corruption) may, as considered appropriate by that Party, be removed, suspended, or reassigned by the appropriate authority, bearing in mind respect for the principle of the presumption of innocence.
4. Each Party shall, in accordance with the fundamental principles of its legal system and without prejudice to judicial independence, adopt or maintain measures to strengthen integrity, and to prevent opportunities for corruption, among members of the judiciary in matters that affect international trade or investment. These measures may include rules with respect to the conduct of members of the judiciary.
Article 27.5. Participation of Private Sector and Society
1. Each Party shall take appropriate measures, within its means and in accordance with fundamental principles of its legal system, to promote the active participation of individuals and groups outside the public sector, such as enterprises, civil society, non-governmental organizations, and community-based organizations, in preventing and combatting corruption in matters affecting international trade or investment, and to raise public awareness regarding the existence, causes, and gravity of corruption, and the threat posed by it. To this end, a Party may, for example:
(a) undertake public information activities and public education programs that contribute to non-tolerance of corruption;
(b) adopt or maintain measures to encourage professional associations and other non- governmental organizations, if appropriate, in their efforts to encourage and assist enterprises, in particular SMEs, in developing internal controls, ethics and compliance programs or measures for preventing and detecting bribery and corruption in international trade and investment;
(c) adopt or maintain measures to encourage company management to make statements in their annual reports or otherwise publicly disclose their internal controls, ethics and compliance programs or measures, including those that contribute to preventing and detecting bribery and corruption in international trade and investment; or
(d) adopt or maintain measures that respect, promote, and protect the freedom to seek, receive, publish, and disseminate information concerning corruption.
2. Each Party shall endeavor to encourage private enterprises, taking into account their structure and size, to:
(a) adopt or maintain sufficient internal auditing controls to assist in preventing and detecting offenses described in Article 27.3.1 or 27.3.6 (Measures to Combat Corruption); and
(b) ensure that their accounts and required financial statements are subject to appropriate auditing and certification procedures.
3. Each Party shall take appropriate measures to ensure that its relevant anticorruption bodies are known to the public and shall provide access to those bodies, if appropriate, for the reporting, including anonymously, of an incident that may be considered to constitute an offense described in Article 27.3.1 (Measures to Combat Corruption).
4. The Parties recognize the benefits of internal compliance programs in enterprises to combat corruption. In this regard, each Party shall encourage enterprises, taking into account their size, legal structure, and the sectors in which they operate, to establish compliance programs for the purpose of preventing and detecting offenses described in Article 27.3.1 or 27.3.6 (Measures to Combat Corruption).
Article 27.6. Application and Enforcement of Anticorruption Laws
1. In accordance with the fundamental principles of its legal system, no Party shall fail to effectively enforce its laws or other measures adopted or maintained to comply with Article 27.3 (Measures to Combat Corruption) through a sustained or recurring course of action or inaction, after the date of entry into force of this Agreement as an encouragement for trade and investment. (8)
2. In accordance with the fundamental principles of its legal system, each Party retains the right for its law enforcement, prosecutorial, and judicial authorities to exercise their discretion with respect to the enforcement of its anticorruption laws. Each Party retains the right to take bona fide decisions with regard to the allocation of its resources.
3. The Parties affirm their commitments under applicable international agreements or arrangements to cooperate with each other, consistent with their respective legal and administrative systems, to enhance the effectiveness of law enforcement actions to combat the offenses described in Article 27.3 (Measures to Combat Corruption).
Article 27.7. Relation to other Agreements
Nothing in this Agreement affects the rights and obligations of the Parties under the IACAC; the OECD Convention; the UNCAC; or the United Nations Convention against Transnational Organized Crime, done at New York on November 15, 2000.
Article 27.8. Dispute Settlement
1. Chapter 31 (Dispute Settlement), as modified by this Article, applies to disputes relating to a matter arising under this Chapter.
2. A Party may only have recourse to the procedures set out in this Article and Chapter 31 (Dispute Settlement) if it considers that a measure of another Party is inconsistent with an obligation under this Chapter, or that another Party has otherwise failed to carry out an obligation under this Chapter, in a manner affecting trade or investment between Parties.
3. No Party shall have recourse to dispute settlement under this Article or Chapter 31 (Dispute Settlement) for a matter arising under Article 27.6 (Application and Enforcement of Anticorruption Laws) or Article 27.9 (Cooperation).
4. Further to Article 31.4 (Consultations), each Consulting Party shall ensure that consultations include personnel of the consulting Party's government authorities with responsibility for the anticorruption issue under dispute.
5. Further to Article 31.5 (Commission, Good Offices, Conciliation, and Mediation), any discussion held by the Free Trade Commission shall, to the extent practicable, include participation by a Minister responsible for the anticorruption issue under dispute, or their designee.
6. Further to Article 31.8 (Roster and Qualifications of Panelists), the panel shall have expertise in the area of anticorruption under dispute.
Article 27.9. Cooperation
1. The Parties recognize the importance of cooperation, coordination, and exchange of information between their respective anticorruption law enforcement agencies in order to foster effective measures to prevent, detect, and deter bribery and corruption.
2. The Parties shall endeavor to strengthen cooperation and coordination among their respective anticorruption law enforcement agencies.
3. Recognizing that the Parties can benefit by sharing their diverse experience and best practices in developing, implementing, and enforcing their anticorruption laws and policies, the Parties' anticorruption law enforcement agencies shall consider undertaking technical cooperation activities, including training programs, as decided by the Parties.
4. The Parties acknowledge the importance of cooperation and coordination internationally, including the OECD Working Group on Bribery in International Business Transactions, the UNCAC Conference of the State Parties and the Mechanism for Follow-Up on the Implementation of the IACAC, as well as their support to the APEC Anti-Corruption and Transparency Working Group and the G20 Anti-Corruption Working Group.
Chapter 28. GOOD REGULATORY PRACTICES
Article 28.1. Definitions
For the purposes of this Chapter:
regulation means a measure of general application adopted, issued, or maintained by a regulatory authority with which compliance is mandatory, except as set forth in Annex 28-A (Additional Provisions Concerning the Scope of "Regulations" and "Regulatory Authorities");
regulatory authority means an administrative authority or agency at the Party's central level of government that develops, proposes or adopts a regulation, and does not include legislatures or courts; and
regulatory cooperation means an effort between two or more Parties to prevent, reduce, or eliminate unnecessary regulatory differences to facilitate trade and promote economic growth, while maintaining or enhancing standards of public health and safety and environmental protection.
Article 28.2. Subject Matter and General Provisions
1. The Parties recognize that implementation of government-wide practices to promote regulatory quality through greater transparency, objective analysis, accountability, and predictability can facilitate international trade, investment, and economic growth, while contributing to each Party's ability to achieve its public policy objectives (including health, safety, and environmental goals) at the level of protection it considers appropriate. The application of good regulatory practices can support the development of compatible regulatory approaches among the Parties, and reduce or eliminate unnecessarily burdensome, duplicative, or divergent regulatory requirements. Good regulatory practices also are fundamental to effective regulatory cooperation.
2. Accordingly, this Chapter sets out specific obligations with respect to good regulatory practices, including practices relating to the planning, design, issuance, implementation, and review of the Parties' respective regulations.
3. For greater certainty, this Chapter does not prevent a Party from:
(a) pursuing its public policy objectives (including health, safety, and environmental goals) at the level it considers to be appropriate;
(b) determining the appropriate method of implementing its obligations in this Chapter within the framework of its own legal system and institutions; or
(c) adopting good regulatory practices that supplement those that are set out in this Chapter.
Article 28.3. Central Regulatory Coordinating Body
Recognizing that institutional arrangements are particular to each Party's system of governance, the Parties note the important role of their respective central regulatory coordinating bodies in promoting good regulatory practices; performing key advisory, coordination, and review functions to improve the quality of regulations; and developing improvements to their regulatory system. The Parties intend to maintain their respective central regulatory coordinating bodies, within their respective mandates and consistent with their law.
Article 28.4. Internal Consultation, Coordination, and Review
1. The Parties recognize that internal processes or mechanisms providing for consultation, coordination, and review among domestic authorities in the development of regulations can increase regulatory compatibility among the Parties and facilitate trade. Accordingly, each Party shall adopt or maintain those processes or mechanisms to pursue, among others, the following objectives:
(a) promoting government-wide adherence to good regulatory practices, including those set forth in this Chapter;
(b) identifying and developing improvements to government-wide regulatory processes;
(c) identifying potential overlap or duplication between proposed and existing regulations, and preventing the creation of inconsistent requirements across domestic authorities;
(d) supporting compliance with international trade and investment obligations, including, as appropriate, the consideration of international standards, guides, and recommendations;
(e) promoting consideration of regulatory impacts, including burdens on small enterprises (1) of information collection and implementation; and
(f) encouraging regulatory approaches that avoid unnecessary restrictions on competition in the marketplace.
2. Each Party shall make publicly available a description of the processes or mechanisms referred to in paragraph 1.
Article 28.5. Information Quality
1. Each Party recognizes the need for regulations to be based upon information that is reliable and of high quality. To that end, each Party should adopt or maintain publicly available guidance or mechanisms that encourage its regulatory authorities when developing a regulation to:
(a) seek the best, reasonably obtainable information, including scientific, technical, economic, or other information relevant to the regulation it is developing;
(b) rely on information that is appropriate for the context in which it is used; and
(c) identify sources of information in a transparent manner, as well as any significant assumptions and limitations.
2. If a regulatory authority systematically collects information from members of the public through identical questions in a survey for use in developing a regulation, each Party shall provide that the authority should:
(a) use sound statistical methodologies before drawing generalized conclusions concerning the impact of the regulation on the population affected by the regulation; and
(b) avoid unnecessary duplication and otherwise minimize unnecessary burdens on those being surveyed.
Article 28.6. Early Planning
Each Party shall publish annually a list of regulations that it reasonably expects within the following 12 months to adopt or propose to adopt. Each regulation identified in the list should be accompanied by:
(a) a concise description of the planned regulation;
(b) a point of contact for a knowledgeable individual in the regulatory authority responsible for the regulation; and
(c) an indication, if known, of sectors to be affected and whether there is any expected significant effect on international trade or investment.
Entries in the list should also include, to the extent available, time tables for subsequent actions, including those providing opportunities for public comment under Article 28.9 (Transparent Development of Regulations).
Article 28.7. Dedicated Website
1. Each Party shall maintain a single, free, publicly available website that, to the extent ptacticable, contains all information that it is required to publish pursuant to Article 28.9 (Transparent Development of Regulations).
2. A Party may comply with paragraph 1 by making publicly available information on, and providing for the submission of comments through, more than one website, provided the information can be accessed, and submissions can be made, from a single web portal that links to other websites.
Article 28.8. Use of Plain Language
Each Party should provide that proposed and final regulations are written using plain language to ensure that those regulations are clear, concise, and easy for the public to understand, recognizing that some regulations address technical issues and that relevant expertise may be required to understand or apply them.
Article 28.9. Transparent Development of Regulations
1. During the period described in paragraph 2, when a regulatory authority is developing a regulation, the Party shall, under normal circumstances, (2) publish:
(a) the text of the regulation along with its regulatory impact assessment, if any;
(b) an explanation of the regulation, including its objectives, how the regulation achieves those objectives, the rationale for the material features of the regulation, and any major alternatives being considered;
(c) an explanation of the data, other information, and analyses the regulatory authority relied upon to support the regulation; and
(d) the name and contact information of an individual official from the regulatory authority who may be contacted concerning questions regarding the regulation.
At the same time the Party publishes the information listed in subparagraphs (a) through (d), the Party shall also make publicly available data, other information, and scientific and technical analyses it relied upon in support of the regulation, including any risk assessment.