(d) afford an opportunity for refusing to provide information which would force the person referred to in paragraph 1 to admit their own participation or that of their close relatives in an infringement of an intellectual property right; or
(e) govern the protection of confidentiality of information sources or the processing of personal data.
Article 25.53. Provisional and Precautionary Measures
1. Each Party shall ensure that the judicial authorities may, at the request of the applicant, issue against the alleged infringer an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right, or to forbid, on a provisional basis and, where appropriate, subject to a recurring penalty payment if provided for by the law of that Party, the continuation of the alleged infringements of that right, or to make such continuation subject to the lodging of guarantees intended to ensure the compensation of the right holder. An interlocutory injunction may also be issued, under the same conditions, where appropriate, against a third party (1) over whom the relevant judicial authority exercises jurisdiction and whose services are used to infringe an intellectual property right.
2. Each Party shall ensure that its judicial authorities may, on request of the applicant, order the seizure or the delivery up (2) of goods suspected of infringing an intellectual property right, so as to prevent their entry into, or movement within, the channels of commerce.
3. In the case of an alleged infringement committed on a commercial scale, each Party shall ensure that the judicial authorities may order, if the applicant demonstrates circumstances likely to endanger the recovery of damages, the precautionary seizure of the movable and immovable property of the alleged infringer, including the blocking of their bank accounts and other assets. For that purpose, the competent authorities may order the communication of bank, financial or commercial documents, or appropriate access to the relevant information.
Article 25.54. Remedies
1. Each Party shall ensure that the judicial authorities have the authority to order, on request of the applicant and without prejudice to any damages due to the right holder by reason of the infringement, and without compensation of any sort, the destruction, or at least the definitive removal from the channels of commerce, of goods that they have found to be infringing an intellectual property right. If appropriate, the judicial authorities may also order the destruction of materials and implements predominantly used in the creation or manufacture of those goods.
2. The judicial authorities of each Party shall have the authority to order that those measures be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so.
3. In considering a request for remedies, the need for proportionality between the seriousness of the infringement and the remedies ordered, as well as the interests of third parties, shall be taken into account.
Article 25.55. Injunctions
Each Party shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer and, if appropriate, against a third party (1) over whom the relevant judicial authority exercises jurisdiction and whose services are used to infringe an intellectual property right, an injunction aimed at prohibiting the continuation of the infringement.
Article 25.56. Alternative Measures
Each Party may provide that the judicial authorities, in appropriate cases and on request of the person liable to be subject to the measures provided for in Article 25.54 or 25.55, may order pecuniary compensation to be paid to the injured party instead of applying the measures provided for in Article 25.54 or 25.55 if that person acted unintentionally and without negligence, if execution of the measures in question would cause that person disproportionate harm and if pecuniary compensation to the injured party appears reasonably satisfactory.
Article 25.57. Damages
1. Each Party shall ensure that the judicial authorities, on application of the injured party, order the infringer who knowingly, or with reasonable grounds to know, engaged in an infringing activity, to pay the right holder damages adequate to compensate for the injury that the right holder has suffered as a result of the infringement.
2. In determining the amount of damages under paragraph 1, the judicial authorities of each Party shall have the authority to consider, inter alia, any legitimate measure of value that the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price (1). At least in cases of infringement of copyright or related rights and trademark counterfeiting, each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority to order the infringer to pay the right holder the part of the infringer's profits that is attributable to the infringement, whether as an alternative to, in addition to or as part of the damages.
3. As an alternative to paragraph 2, each Party may provide that its judicial authorities have the authority, in appropriate cases, to set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question.
4. Nothing in this Article precludes either Party from providing that if the infringer did not knowingly, or with reasonable grounds to know, engage in an infringing activity, its judicial authorities may order, in favour of the injured party, the recovery of profits or the payment of damages, which may be pre-established.
Article 25.58. Legal Costs
Each Party shall provide that its judicial authorities, where appropriate, have the authority to order, at the conclusion of civil judicial proceedings concerning the enforcement of intellectual property rights, that the prevailing party be awarded the payment by the losing party of legal costs and other expenses, as provided for under the law of the Party concerned.
Article 25.59. Publication of Judicial Decisions
Each Party shall ensure that, in legal proceedings instituted for infringement of an intellectual property right, the judicial authorities may order, on request of the applicant and at the expense of the infringer, appropriate measures for the dissemination of the information concerning the decision, including displaying the decision and publishing it in full or in part.
Article 25.60. Presumption of Authorship or Ownership
The Parties shall recognise that for the purposes of applying the measures, procedures and remedies provided for in this Section:
(a) for the author of a literary or artistic work to be regarded as such, and consequently to be entitled to institute infringement proceedings, it shall be sufficient, in the absence of proof to the contrary, for the name of the author to appear on the work in the usual manner; and
(b) subparagraph (a) shall apply mutatis mutandis to the holders of rights related to copyright with regard to their protected subject matter.
Article 25.61. Administrative Procedures
To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, such procedures shall conform to principles that are equivalent in substance to those provided for in the relevant provisions of this Sub-Section.
Subsection 2. BORDER ENFORCEMENT
Article 25.62. Border Measures
1. With respect to goods under customs control, each Party shall adopt or maintain procedures under which a right holder may submit applications requesting competent authorities to suspend the release of, or to detain, suspected goods. For the purposes of this Sub-Section, "suspected goods" means goods suspected of infringing trademarks, copyrights and related rights, geographical indications, patents, utility models, industrial designs or topographies of integrated circuits.
2. Each Party shall have in place electronic systems for the management by competent authorities of the applications granted or recorded.
3. Each Party shall ensure that its competent authorities do not charge a fee to cover the administrative costs resulting from the processing of an application or a recordation.
4. Each Party shall ensure that its competent authorities decide on the granting or recording of an application within a reasonable period of time.
5. Each Party shall ensure that the granted or recorded application applies to multiple shipments.
6. With respect to goods under customs control, each Party shall ensure that its customs authorities may act upon their own initiative to suspend the release of, or to detain, goods suspected of infringing trademarks or copyright.
7. Customs authorities shall use risk analysis to identify suspected goods. Each Party shall implement this paragraph in accordance with its law.
8. Each Party may have in place procedures allowing for the destruction of suspected goods without the need for prior administrative or judicial proceedings for the formal determination of the infringements in cases where the persons concerned agree to or do not oppose such destruction. If such goods are not destroyed, each Party shall ensure that, except in exceptional circumstances, such goods are disposed of outside the commercial channels in such a manner as to avoid any harm to the right holder.
9. Each Party may have in place procedures allowing for the swift destruction of counterfeit trademark and pirated goods that are sent through postal or express courier consignments.
10. A Party may decide not to apply this Article to the import of goods that are put on the market of a third country by, or with the consent of, the right holders. A Party may also decide not to apply this Article to goods of a non-commercial nature contained in travellers' personal luggage.
11. The customs authorities of the Parties shall maintain a regular dialogue and promote cooperation with the relevant stakeholders and with other authorities involved in the enforcement of intellectual property rights.
12. The Parties shall cooperate in respect of international trade in suspected goods. In particular, the Parties shall share, as far as possible, information on trade in suspected goods affecting the other Party.
13. Without prejudice to other forms of cooperation, the Protocol to this Agreement on Mutual Administrative Assistance in Customs Matters applies to breaches of legislation on intellectual property rights for the enforcement of which the customs authorities of a Party are competent in accordance with this Article.
Article 25.63. Consistency with GATT and TRIPS Agreement
In implementing border measures for the enforcement of intellectual property rights by its customs authorities, whether or not covered by this Sub-Section, each Party shall ensure consistency with its obligations under GATT 1994 and the TRIPS Agreement and, in particular, with Article V of GATT 1994 and Article 41 and Section 4 of Part III of the TRIPS Agreement.
Section D. FINAL PROVISIONS
Article 25.64. Cooperation
1. The Parties shall cooperate with a view to supporting the implementation of the commitments and obligations undertaken pursuant to this Chapter.
2. The areas of cooperation on intellectual property rights protection and enforcement matters may include the following activities:
(a) exchange of information on the legal framework concerning intellectual property rights and relevant rules of protection and enforcement;
(b) exchange of experience between the Parties on legislative progress;
(c) exchange of experience between the Parties on the enforcement of intellectual property rights;
(d) exchange of experience between the Parties on enforcement at central and sub-central level by customs authorities, police, administrative and judiciary authorities;
(e) coordination to prevent exports of counterfeit goods, including with third countries;
(f) technical assistance, capacity building, and exchange and training of personnel;
(g) the protection and defence of intellectual property rights and the dissemination of information in that regard in, inter alia, business circles and civil society;
(h) public awareness of consumers and right holders, as well as enhancement of institutional cooperation, in particular between their intellectual property offices;
(i) active promotion of awareness and education of the general public on policies concerning intellectual property rights;
(j) public-private collaboration engaging SMEs, including at SME-focused events or gatherings, with regard to the protection and enforcement of intellectual property rights and the reduction of their infringement; and
(k) formulation of effective strategies to identify audiences and communication programmes to increase consumer and media awareness on the impact of infringement of intellectual property rights, including the risk to health and safety and the connection to organised crime.
3. Each Party may make publicly available the product specifications, or a summary of those specifications, and relevant contact points for control or management of the geographical indications of the other Party as protected pursuant to Sub-Section 4 of Section B.
4. The Parties shall, directly or through the Sub-Committee referred to in Article 25.66, maintain contact on all matters related to the implementation and functioning of this Chapter.
Article 25.65. Voluntary Stakeholder Initiatives
Each Party shall endeavour to facilitate voluntary stakeholder initiatives to reduce intellectual property rights infringements, including online and in other marketplaces, focusing on concrete problems and seeking practical solutions that are realistic, balanced, proportionate and fair for all concerned, including in the following ways:
(a) each Party shall endeavour to convene stakeholders consensually in its territory to facilitate voluntary initiatives to find solutions and resolve differences regarding the protection and enforcement of intellectual property rights and reducing infringement;
(b) each Party shall endeavour to exchange information with the other Party regarding efforts to facilitate voluntary stakeholder initiatives in its territory; and
(c) the Parties shall endeavour to promote open dialogue and cooperation among the Parties' stakeholders, and to encourage the Parties' stakeholders to jointly find solutions and resolve differences regarding the protection and enforcement of intellectual property rights and reducing their infringement.
Article 25.66. Sub-Committee on Intellectual Property
The Sub-Committee on Intellectual Property ("Sub-Committee"), established pursuant to Article 33.4(1), shall monitor and ensure proper implementation and functioning of this Chapter and Annexes 25-A, 25-B and 25-C. The Sub-Committee shall also perform specific tasks attributed to it in this Chapter, including in Article 25.40.
Chapter 26. TRADE AND SUSTAINABLE DEVELOPMENT
Section A. COMMON PROVISIONS
Article 26.1. Objectives
1. The Parties recall the Agenda 21 on Environment and Development, adopted at the UN Conference on Environment and Development held in Rio de Janeiro, on 3 to 14 June 1992, the Johannesburg Plan of Implementation of the World Summit on Sustainable Development of 2002, the International Labour Organization ("ILO") Declaration on Social Justice for a Fair Globalization, adopted by the International Labour Conference at its 97th Session, held in Geneva on 10 June 2008 (the "ILO Declaration on Social and Justice for a Fair Globalization"), the Outcome Document of the UN Conference on Sustainable Development of 2012 entitled "The Future We Want" and the 2030 Agenda, and its Sustainable Development Goals.
2. The Parties recognise that sustainable development encompasses economic development, social development and environmental protection, all three being interdependent and mutually reinforcing for the welfare of present and future generations.
3. In light of the above, the objective of this Chapter is to enhance the trade and investment relationship between the Parties in a way that contributes to sustainable development, in particular its labour (1) and environmental dimensions that are relevant to trade and investment.
4. This Chapter embodies a cooperative approach based on common values and interests
Article 26.2. Right to Regulate and Levels of Protection
1. The Parties recognise the right of each Party to determine its sustainable development policies and priorities, in particular to establish its own levels of domestic labour and environmental protection and its own labour and environmental priorities, and to adopt or modify its law and policies related to labour and environment accordingly.
2. The levels of protection, law and policies referred to in paragraph 1 shall be consistent with each Party's commitment to the multilateral environmental agreements ("MEAs") and multilateral labour standards and agreements, as referred to in this Chapter, to which it is party.
3. Each Party shall strive to ensure that its environmental and labour laws, regulations and policies provide for and encourage a high level of environmental and labour protection, and shall strive to continue improving its levels of environmental and labour protection provided in its laws, regulations and policies.
4. A Party shall not weaken or reduce the levels of protection afforded in its environmental and labour laws and regulations in order to encourage trade or investment.
5. A Party shall not waive or otherwise derogate from, or offer to waive or otherwise derogate from, its environmental and labour laws and regulations in a manner that weakens or reduces the levels of protection afforded in those laws and regulations in order to encourage trade or investment.
6. A Party shall not, through a sustained or recurring course of action or inaction, fail to effectively enforce its environmental and labour laws and regulations in a manner affecting trade or investment.
7. Each Party retains the right to exercise reasonable discretion and to make bona fide decisions with regard to the allocation of enforcement resources in accordance with priorities for the enforcement of its environmental and labour laws and regulations.
8. A Party shall not apply its environmental and labour laws and regulations in a manner which would constitute a disguised restriction on trade or investment.
Article 26.3. Trade and Responsible Business Conduct and Management of Supply Chains
1. The Parties recognise the importance of responsible management of supply chains through responsible business conduct or corporate social responsibility practices, and the role of trade in pursuing that objective.
(a) promote responsible business conduct or corporate social responsibility by encouraging the uptake by businesses of relevant practices that are consistent with internationally recognised principles, standards and guidelines, including sectorial guidelines of due diligence, that have been endorsed or are supported by that Party; and
(b) support the dissemination and use of relevant international instruments that have been endorsed or are supported by that Party, such as the OECD Guidelines for Multinational Enterprises, the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, adopted in Geneva in November 1977 (the "ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy"), the UN Global Compact and the UN Guiding Principles on Business and Human Rights endorsed by the Human Rights Council in its Resolution 17/4 of 16 June 2011.
3. The Parties recognise the utility of international sector-specific guidelines in the area of corporate social responsibility or responsible business conduct and shall promote joint work in that regard. The Parties shall also implement measures to promote the adherence to OECD Due Diligence Guidelines.
4. The Parties recognise the importance of promoting trade in goods that contribute to enhanced social conditions and environmentally sound practices, such as environmental goods and services contributing to a resource-efficient, low-carbon economy, goods whose production is not linked to deforestation and goods that are the subject of voluntary sustainability assurance schemes and mechanisms.
5. The Parties shall exchange information as well as best practices and, as appropriate, cooperate bilaterally, regionally and in international fora on issues covered by this Article.
Article 26.4. Scientific and Technical Information
1. When establishing or implementing measures aimed at protecting the environment or labour conditions that may affect trade or investment between the Parties, each Party shall take into account available scientific and technical evidence, preferably from recognised technical and scientific bodies, as well as relevant international standards, guidelines or recommendations, where they exist.
2. If scientific evidence or information is insufficient or inconclusive and there is a risk of serious environmental degradation or a risk to occupational health and safety in its territory, a Party may adopt measures based on the precautionary principle. Such measures shall be subject to review if new or additional scientific information becomes available.
3. If a measure adopted in accordance with paragraph 2 has an impact on trade or investment between the Parties, a Party may request the Party that adopted the measure to provide information indicating that the measure is consistent with its own levels of protection, and may request discussion of the matter in the Sub-Committee on Trade and Sustainable Development.
4. Such measures shall not be applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade or investment.
Article 26.5. Transparency and Good Regulatory Practices
The Parties recognise the importance of the application of the rules on transparency and good regulatory practices in accordance with Chapters 28 and 29, in particular the rules providing opportunities for interested persons to submit views in respect of:
(a) measures aimed at protecting the environment and labour conditions that may affect trade or investment; and
(b) trade or investment measures that may affect the protection of the environment or labour conditions.
Article 26.6. Public Awareness, Information, Participation and Procedural Guarantees
1. Each Party shall promote public awareness of its labour and environmental laws and regulations, including by ensuring that its labour and environmental laws and regulations and its enforcement and compliance procedures are publicly available.
2. Each Party shall seek to accommodate requests for information from any person regarding the Party's implementation of this Chapter.
3. Each Party shall make use of the mechanisms referred to in Articles 33.5, 33.6 and 33.7 to seek views on matters related to the implementation of this Chapter.
4. Each Party shall provide for the receipt of, and give due consideration to, communications and opinions by way of written submissions from a person of that Party on matters related to the implementation of this Chapter in accordance with its domestic procedures. A Party shall respond in writing and in a timely manner to such submissions. It may notify such communications and opinions to its Domestic Consultative Group established pursuant to Article 33.6 and the contact point of the other Party designated pursuant to Article 26.19(6).
5. Each Party shall, in accordance with its law, ensure that access to administrative or judicial procedures is available to persons with a legally recognised interest in a particular matter or who claim that their right has been infringed, in order to permit action against infringements of its environmental or labour law, including appropriate remedies for violations of such law.
6. Each Party shall, in accordance with its law, ensure that the procedures referred to in paragraph 5 comply with due process, are not prohibitively costly, do not entail unreasonable time limits or unwarranted delays, provide the possibility to order an injunction if appropriate, and are fair, equitable and transparent.
Article 26.7. Cooperation Activities
1. The Parties recognise the importance of cooperation activities on trade-related aspects of environmental and labour policies in order to achieve the objectives of this Agreement and implement this Chapter.
2. Cooperation activities can be developed and implemented with the participation of international and regional organisations as well as with third countries, businesses, employers' and workers' organisations, education and research organisations and other non-governmental organisations, as appropriate.
3. Cooperation activities shall be carried out on issues and topics agreed upon by the Parties to address matters of common interest.
4. The Parties may cooperate on issues as provided for in this Chapter as well as, inter alia:
(a) labour and environmental aspects of trade and sustainable development in international fora, including in particular the WTO, the UN High-level Political Forum on Sustainable Development, the UN Environment Programme ("UNEP"), the ILO and MEAs;
(b) the impact of labour and environmental laws and standards on trade and investment;
(c) the impact of trade and investment law on labour and the environment; and
(d) trade-related aspects of:
(i) initiatives on sustainable consumption and production, including those aimed at promoting a circular economy and green growth and pollution abatement; and
(ii) initiatives to promote environmental goods and services, including by addressing related non-tariff barriers.
5. The priorities for cooperation activities shall be decided jointly by the Parties on the basis of areas of mutual interest and available resources.
6. The Parties may carry out activities in the cooperation areas set out in this Chapter in person or by any technological means available to the Parties.
Section B. ENVIRONMENT AND TRADE
Article 26.8. Objectives
1. The Parties aim to promote mutually supportive trade and environmental policies, high levels of environmental protection in line with MEAs to which they are party, respectively, and effective enforcement of their respective environmental laws and regulations, and to enhance their capacity to address trade-related environmental issues, including through cooperation.
2. The Parties recognise that enhanced cooperation to protect and conserve the environment and sustainably manage their natural resources has benefits that can contribute to sustainable development, strengthen their environmental governance and complement the objectives of this Agreement.
3. The Parties recognise the importance of mutually supportive trade and environmental policies and practices to improve environmental protection in promoting sustainable development.
Article 26.9. Multilateral Environmental Governance and Agreements
1. The Parties recognise the importance of the UN Environment Assembly of the UNEP. The Parties recognise the critical role of MEAs in addressing global, regional and domestic environmental challenges. The Parties further recognise the need to enhance mutual supportiveness between trade and environmental policies. Accordingly, each Party shall effectively implement MEAs, including their protocols, to which it is party.
2. The Parties recognise the right of each Party to adopt or maintain measures to further the objectives of MEAs to which it is party.
3. The Parties shall engage in dialogue and cooperate, as appropriate, on trade and environmental issues of mutual interest, in particular with respect to MEAs. This shall include regular exchanges of information on the initiatives of each Party regarding the ratifications of MEAs, including their protocols and amendments.
Article 26.10. Trade and Climate Change
1. The Parties recognise the importance of MEAs in the area of climate change, in particular the need to achieve the objective of the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992 ("UNFCCC"), and the purpose and goals of the Paris Agreement, in order to address the urgent threat of climate change. Accordingly, the Parties recognise the role of trade in achieving the goal of sustainable development and addressing climate change, as well as the importance of individual and collective efforts to address climate change impacts through mitigation and adaptation actions.
2. In accordance with paragraph 1, each Party shall:
(a) effectively implement the UNFCCC and the Paris Agreement, including its commitments with regard to its nationally determined contributions;
(b) promote the positive contribution of trade to the transition to a low greenhouse gas emission and circular economy and to climate-resilient development, including actions on climate change mitigation and adaptation; and
(c) facilitate and promote trade and investment in goods and services of particular relevance for climate change mitigation and adaptation, for sustainable renewable energy and for energy efficiency, in a manner consistent with other provisions of this Agreement.
3. In accordance with Article 26.7, the Parties shall cooperate, as appropriate, on trade-related aspects of climate change, bilaterally, regionally and in international fora, including in the UNFCCC, the WTO and the Montreal Protocol on Substances that Deplete the Ozone Layer, concluded at Montreal on 16 September 1987 ("Montreal Protocol"). Furthermore, the Parties may cooperate, as appropriate, on those issues also in the International Maritime Organization.
4. In accordance with paragraph 1, the Parties shall cooperate in areas such as:
(a) exchanging knowledge and experience regarding the implementation of the Paris Agreement, as well as on initiatives to promote climate resilience, renewable energy, low emission technologies, energy efficiency, carbon pricing, sustainable transport, sustainable and climate- resilient infrastructure development, emissions monitoring, and nature-based solutions; as well as exploring options to cooperate in areas such as short-life climate pollutants and soil carbon sequestration; and
(b) exchanging knowledge and experience regarding an ambitious phase-out of ozone depleting substances and the phase-down of hydrofluorocarbons under the Montreal Protocol through measures to control their production, consumption and trade, the introduction of environmentally friendly alternatives to those ozone depleting substances and hydrofluorocarbons, updating of safety and other relevant standards, and combating the illegal trade of substances regulated by the Montreal Protocol, as appropriate.
Article 26.11. Trade and Forests
1. The Parties recognise the importance of sustainable forest management, and the role of trade in pursuing that objective.
2. In accordance with paragraph 1, each Party shall:
(a) implement measures to combat illegal logging and related trade, including through cooperation activities with third countries, as appropriate;