(iii) any other labels or packaging to which a counterfeit trademark has been applied and that have been used in the commission of the offence; and
(d) its judicial or other competent authorities shall have the authority to telease or, in the alternative, provide access to, goods, material, implements, and other evidence held by the relevant authority to a right holder for civil infringement proceedings.
2. With respect to forfeiture or destruction ordered in accordance with subparagraph 1(c), each Party shall provide that:
(a) in cases in which destruction of counterfeit trade mark goods or pirated copyright goods is not ordered, the judicial or other competent authorities shall ensure that, except in exceptional circumstances, those goods are disposed of outside the channels of commerce in such a manner as to avoid causing any harm to the right holder; and
(b) in cases in which forfeiture or destruction is ordered, it shall occur without compensation of any kind to the offender.
3. With respect to the offences specified in Article 17.75 (Criminal Offences), a Party may provide that its judicial authorities may order the seizure or forfeiture of assets, or alternatively, a fine, the value of which corresponds to the assets derived from, or obtained directly or indirectly through, the infringing activity.
Article 17.78. Ex Officio Enforcement
Each Party shall provide that its competent authorities may act upon their own initiative to initiate legal action with respect to the offences specified in Article 17.75 (Criminal Offences), without the need for a formal complaint by a third party or right holder.
Article 17.79. Liability of Legal Persons
Each Party shall provide that legal persons (30) as well as natural persons may incur liability for the offences specified in Article 17.75 (Criminal Offences) in accordance with its law.
Subsection K.5. Enforcement In the Digital Environment
Article 17.80. General Obligations on Enforcement In the Digital Environment
Each Party shall provide that the enforcement measures, procedures and remedies, referred to in Sub-Sections K.2 (Enforcement - Civil Remedies) and K.4 (Enforcement - Criminal Remedies), including expeditious remedies to prevent infringement, as applicable, are available under its law to proceed against an act of infringement of intellectual property rights that takes place in the digital environment or over digital networks, including through electronic commerce platforms and social media.
Article 17.81. Limitations on Liability of Online Service Providers
1. The Parties recognise that the services of online service providers ("OSPs") are increasingly used in the course of the infringement of intellectual property rights, and that OSPs are often in the best position to bring such infringing activities to an end.
2. Each Party shall introduce or maintain measures that apply, in appropriate cases, to limit the liability of, or remedies available against, an OSP for copyright and related rights infringement by a user of its services. For greater certainty, a Party may extend these measures to cover other intellectual property rights.
3. Each Party shall ensure that the measures introduced or maintained under paragraph 2 include conditions to qualify for the limitation, in accordance with a Party's law, including, where practicable, requiring the OSP to take action to prevent access to the materials infringing copyright or related rights.
4. This Article shall not affect the ability of a court or administrative authority, in accordance with the legal system ofa Party, to require the OSP to terminate or prevent an infringement, including by the grant of a blocking order under Article 17.82 (Blocking Orders).
Article 17.82. Blocking Orders
Each Party shall ensure that injunctions as provided for in Article 17.67 (Provisional and Precautionary Measures) and Article 17.70 (Injunctions):
(a) are available against an OSP, where its online services are used by a third party to infringe an intellectual property right; and
(b) include injunctions requiring that OSPs disable access to infringing content.
Article 17.83. Procedures for Domain Registries
Each Party shall encourage its domain registry to take appropriate, timely, and effective measures to suspend domains used for infringing intellectual property on their respective country-code top-level domains. (31)
Article 17.84. Disclosure of Information
Each Party shall provide that, in accordance with its law, its competent authorities (32) may order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, if that right holder has filed a legally sufficient claim of trade mark or copyright or related rights infringement, and if such information is being sought for the purpose of protecting or enforcing those rights.
Subsection K.6. Enforcement Practices with Respect to Intellectual Property Rights
Article 17.85. Transparency of Judicial Decisions and Administrative Rulings
Each Party shall provide that final judicial decisions and administrative rulings of general application pertaining to the enforcement of intellectual property rights:
(a) preferably are in writing and state any relevant findings of fact and the reasoning or the legal basis on which the decisions and rulings are based; and
(b) are published or, if publication is not practicable, otherwise made available to the public in a national language of the Party in such a manner as to enable interested persons and the other Party to become acquainted with them.
Article 17.86. Voluntary Stakeholder Initiatives
Each Party shall endeavour to promote cooperative efforts within the business community to effectively address intellectual property infringement, including in the digital environment, while preserving legitimate competition. This may include encouraging the establishment of public or private advisory groups to address issues of at least trade mark counterfeiting and copyright piracy.
Article 17.87. Public Awareness
Each Party shall, as appropriate, endeavour to promote public awareness of the importance of respecting intellectual property rights, including in the digital environment, and the detrimental effect of the infringement of intellectual property rights. This may include cooperation with the business community, civil society organisations, and right holder representatives.
Article 17.88. Specialised Enforcement Expertise, Information and Domestic Coordination
1. Each Party shall encourage the development of specialised expertise within its competent authorities responsible for the enforcement of intellectual property rights, including with respect to infringement taking place in the digital environment.
2. Each Party shall, as appropriate, promote internal coordination between, and facilitation of joint actions by, its competent authorities with respect to the enforcement of intellectual property rights, subject to the Party's available resources.
Article 17.89. Environmental Considerations In Destruction and Disposal of Infringing Goods
The Parties recognise the importance of having due regard to environmental matters in their enforcement practices relating to the destruction and disposal of goods that have been found to infringe intellectual property rights.
Chapter 18. COMPETITION
Article 18.1. Objectives
The objectives of this Chapter are to promote economic efficiency and consumer welfare through the maintenance and enforcement of law to address anti-competitive activities and promote competition, and through cooperating on matters covered by this Chapter. The pursuit of these objectives will help to secure the benefits of this Agreement, including facilitating bilateral trade and investment between the Parties.
Article 18.2. Competition Law and Authorities
1. Each Party shall maintain competition law in their respective territories which:
(a) proscribes anti-competitive agreements between enterprises, including cartel agreements;
(b) proscribes anti-competitive practices by enterprises that have substantial market power; and
(c) effectively addresses mergers with substantial anti-competitive effects.
2. Subject to paragraph 3, each Party shall ensure its competition law applies to all commercial activities in its territory regardless of an enterprise's nationality or ownership. This does not preclude a Party from applying its competition law to commercial activities outside its borders that have the object, or which have or may have the effect of, restricting competition within its jurisdiction.
3. Each Party may provide for certain exemptions from the application of its competition law provided that those exemptions are transparent, established in its law, and based on public policy grounds.
4. Each Party shall maintain an authority or authorities responsible and competent for the effective application and enforcement of its competition law ("national competition authorities"). Each Party's national competition authorities shall be operationally independent.
5. Each Party shall enforce its competition law in a manner which does not discriminate on the basis of nationality or ownership.
Article 18.3. Procedural Fairness
1. Each Party shall ensure that its national competition authorities provide transparency, including in writing, regarding the applicable competition laws, regulations, and procedural rules pursuant to which competition law investigations are conducted and pursuant to which any sanction or remedy! is imposed.
2. Each Party's national competition authorities shall endeavour to conduct their investigations subject to definitive deadlines or within a reasonable timeframe, if the investigations are not subject to definitive deadlines.
3. Each Party shall ensure that any public notice confirming or revealing the existence of a pending or ongoing investigation avoids any statement or implication that a person has in fact violated the Party's competition law. This does not preclude the issuing of provisional, reasoned objections by a Party's national competition authorities.
4. Each Party shall afford to a person a reasonable opportunity to be legally represented and shall respect legal privilege, if not waived or lost, for lawful confidential communications between the legal representative and the person (and where relevant, a third party) if the communications concern the soliciting or rendering of legal advice.
5. Each Party shall ensure that, where information which is protected as confidential or privileged by its law is obtained by its national competition authorities during investigations, that information is not disclosed, subject to applicable legal exceptions.
6. Each Party shall ensure that before it imposes a sanction or remedy against a person pursuant to its competition law, it affords that person a reasonable opportunity to:
(a) be provided with information and evidence regarding the national competition authority's concerns, including identification of the relevant specific competition law engaged;
(b) engage with the relevant national competition authority at key points on significant legal, factual, and procedural issues;
(c) be heard and to present evidence before the relevant body (or as relevant, the applicable staff of that body) responsible for the imposition of the sanction or remedy including, if applicable, offering the analysis of a properly qualified expert, which may be in writing; and
(d) where applicable, cross-examine any witness testifying before any court or independent tribunal,
except that a Party may provide for these opportunities within a reasonable time after it imposes an interim sanction or remedy.
7. Each Party may authorise its national competition authorities to resolve any civil or administrative matters that may give rise to a person being subject to a sanction or remedy by consent of that person and the national competition authorities. Each Party may provide for such voluntary resolutions to be subject to review by a court or independent tribunal for approval or a public comment period before becoming final.
8. Each Party shall ensure that all final decisions in civil or administrative matters made pursuant to its competition law are in writing and that those decisions 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.
9. Each Party shall provide a person that is subject to the imposition of a sanction or remedy made pursuant to its competition law with the opportunity to seek review of the sanction or remedy by a court or independent tribunal (subject to the applicable rules of that court or tribunal), save that the Parties shall not be required to provide that opportunity where the person voluntarily agreed to the imposition of the sanction or remedy.
10. Each Party's national competition authorities shall maintain measures to preserve evidence which they have identified as being relevant, including exculpatory evidence, that they collected as part of an investigation until the investigation is complete and any review by a court or independent tribunal of any sanction or remedy imposed is exhausted.
Article 18.4. Private Rights of Action
1. For the purposes of this Article, "private right of action" means the right of a person to seek redress, including injunctive, monetary, or other remedies, from a court or other independent tribunal for injury to that person's business or property caused by a violation of competition law.
2. Recognising that a private right of action is an important supplement to the public enforcement of competition law, each Party shall maintain laws or other measures that provide a private right of action, both independently and following a finding of violation by a national competition authority.
3. Each Party shall ensure that a right provided pursuant to paragraph 2 is available to persons of the other Party on terms that are no less favourable than those available to its own persons.
4. A Party may establish reasonable criteria for the exercise of any rights it creates or maintains in accordance with this Article.
Article 18.5. Cooperation
1. The Parties recognise the importance of cooperation between their respective national competition authorities to promote effective application and enforcement of competition law. To this end, the Parties may cooperate, through their national competition authorities, on issues relating to the application and enforcement of competition law. That cooperation may include:
(a) notification by a Party to the other Party of its activities relating to application and enforcement of competition law that it considers may substantially affect the important interests of the other Party, as promptly as reasonably possible;
(b) exchange of information between the Parties to foster understanding or to facilitate effective application and enforcement of competition law; and
(c) coordination of investigations that raise the same or related concerns relating to the application or enforcement of competition law.
2. The Parties agree that it is in their common interest to work together on technical cooperation activities to strengthen competition policy development and the application and enforcement of competition law. Technical cooperation activities may include:
(a) the exchange of information on the development and implementation of competition policy and law, including in relation to competition issues in digital markets;
(b) the sharing of competition-related studies, reviews, and research, including in relation to competition issues in digital markets; and
(c) the exchange of officials of policy agencies or national competition authorities to deepen cooperation and knowledge sharing.
3. Any cooperation under paragraphs 1 and 2 shall be compatible with each Party's law and important interests and within the Parties' available resources.
4. To implement the objectives of this Article, the Parties may enter into a separate agreement on cooperation and coordination which may provide for, among other things, enhanced information sharing and mutual legal assistance in non-criminal law enforcement.
Article 18.6. Transparency
1. The Parties recognise the value of making competition enforcement and advocacy policies as transparent as possible.
2. Each Party shall make public or require the following to be made public, including on an official website:
(a) its competition laws and regulations;
(b) exemptions and immunities to its competition law; and
(c) guidelines and any rules issued in relation to the administration and enforcement of its competition law,
but shall not be required to make public its internal operating procedures.
Article 18.7. Consultation
1. In order to foster understanding between the Parties or to address specific matters that arise under this Chapter, a Party shall enter into consultations upon request by the other 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 and shall reply promptly to the request.
3. To facilitate discussion of the matter that is the subject of the consultations, each Party shall endeavour to provide relevant non-confidential, nonprivileged information to the other Party.
Article 18.8. Non-Application of Dispute Settlement
Neither Party shall have recourse to dispute settlement under Chapter 31 (Dispute Settlement) for a matter arising under this Chapter.
Chapter 19. STATE-OWNED ENTERPRISES AND DESIGNATED MONOPOLIES
Article 19.1. Definitions
For the purposes of this Chapter:
“Arrangement” means the Arrangement on Officially Supported Export Credits, developed within the framework of the 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 1 January 1979;
“commercial activities” means activities which an enterprise undertakes with an orientation toward profit-making (1) and which 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, designate, or authorise 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 any government monopoly that a Party designates or has designated;
"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 and 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 free from investment direction from 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 any 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 to a state-owned enterprise by virtue of that state-owned enterprise's government ownership or control, where:
(a) "assistance" means:
(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 favourable 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; or
(ii) goods or services other than general infrastructure on terms more favourable than those commercially available to that enterprise;
(b) "by virtue of that state-owned enterprise's government ownership or control" (5) means that the Party or any of the Party's state enterprises or state-owned enterprises:
(i) explicitly limits access to the assistance to the Party's state-owned enterprises;
(ii) provides assistance which is predominately used by the Party's state-owned enterprises;
(iii) provides a disproportionately large amount of the assistance to the Party's state-owned enterprises; or
(iv) otherwise favours the Party's state-owned enterprises through the use of its discretion in the provision of assistance;
"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)
"sovereign wealth fund" means an enterprise owned, or controlled through ownership interests, by a Party that:
(a) serves solely as a special purpose investment fund or arrangement (7) for asset management, investment, and related activities, using financial assets of a Party; and
(b) is a Member of the International Forum of Sovereign Wealth Funds or endorses the Generally Accepted Principles and Practices ("Santiago Principles") issued by the International Working Group of Sovereign Wealth Funds, October 2008, or such other principles and practices as may be agreed to by the Parties, and includes any special purpose vehicles established solely for those activities described in subparagraph (a) wholly owned by the enterprise, or wholly owned by the Party but managed by the enterprise; and
"state-owned enterprise" means an enterprise that is principally engaged in commercial activities in which a Party:
(a) directly owns more than 50 per cent of the share capital;
(b) controls, through ownership interests, the exercise of more than 50 per cent of the voting rights; or
(c) holds the power to appoint a majority of members of the board of directors or any other equivalent management body.
Article 19.2. Scope (8)
1. This Chapter shall apply to the activities of state-owned enterprises and designated monopolies of a Party that affect trade or investment between Parties. This Chapter shall also apply 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 19.7 (Adverse Effects).
2. Nothing in this Chapter shall prevent a central bank or monetary authority of a Party from performing regulatory or supervisory activities or conducting monetary and related credit policy and exchange rate policy.
3. Nothing in this Chapter shall prevent 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 organisation or association, from exercising regulatory or supervisory authority over financial services suppliers.
4. Nothing in this Chapter shall prevent a Party, or one ofits state enterprises or state-owned enterprises, from undertaking activities for the purpose of the resolution of a failing or failed established financial service supplier or any other failing or failed enterprise principally engaged in the supply of financial services.