Article 14. Definitions
For the purposes of this Chapter:
after-sales service includes a service provided by a person:
to repair, service, supervise installers, and set up and test commercial or industrial equipment (including computer software), provided the service is performed as part of an original or extended sales or lease agreement, warranty, or service contract; but does not include hands-on installation generally performed by construction or building trades; or
to provide familiarization or training sessions to potential users;
business visitor means a short-term visitor who does not intend to enter the labour market of a Party, but who seeks entry to engage in activities such as buying or selling goods or services, negotiating contracts, conferring with colleagues, or attending conferences; and
temporary entry means the right to enter and remain in the territory of a Party for the period authorized.
Article 14.2. Obligations
1. The Parties recognize the importance of temporary entry for business persons to support international trade in goods, services, and investment.In accordance with their applicable domestic law, the Parties shall grant the temporary entry of:
(a) nationals who are intra-company transferees (managers, executives, specialists), and business visitors;
(b) nationals who are providing an after-sales service directly related to the exportation of a good by an exporter of the same Party into the territory of the other Party; or
(c) spouses or common-law partners and children of nationals who are intra-company transferees, as described in subparagraph (a).
2. With a view to developing and deepening their relations under this Agreement, the Parties agree that within 3 years of the date of entry into force of this Agreement, they will review developments related to temporary entry and consider the need for further disciplines in this area, including the removal of labour market tests,and procedures of similar effect,and numerical quotas where appropriate.The Parties also agree to deal with implementation and administration issues through bilateral discussions.
3. Within 1 year of the date of entry into force of this Agreement, each Party shall make available explanatory material regarding the requirements for temporary entry under this Chapter so that nationals of the other Party may become acquainted with it.
Chapter Fifteen. COMPETITION POLICY, MONOPOLIES AND STATE ENTERPRISES
Article 15.1. Definitions
For the purposes of this Chapter:
designate means to establish, authorize, or to expand the scope of a monopoly to cover an additional good or service after the date of entry into force of this Agreement;
government monopoly means a monopoly that is owned or controlled through ownership interests by the national government of a Party or by another such monopoly;
in accordance with commercial considerations means consistent with normal business practices of privately held enterprises in the relevant business sector or industry; market means the geographic 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 such grant;
non-discriminatory treatment means the better of national treatment or most-favoured- nation treatment, as set out in the relevant provisions of this Agreement; and
state enterprise means, except as set out in Annex 15.4, a state enterprise as defined in Article 2.1 (General Definitions - Definitions of General Application).
Article 15.2. Competition Policy
1. The Parties recognize the importance of competition law and policy for the efficient functioning of markets within the free trade area and for contributing to the fulfilment of the objectives of this Agreement.
2. Each Party shall adopt or maintain measures to proscribe anti-competitive business conduct and take appropriate action with respect to that conduct.
3. Each Party shall maintain its independence in developing and enforcing its competition laws and regulations.
4. Each Party shall ensure that the measures it adopts or maintains to protect or promote competition in its own market by proscribing anti-competitive business conduct are consistent with the principles of transparency, non-discrimination and procedural fairness.
Article 15.3. Monopolies
1. This Agreement does not prevent a Party from designating or maintaining a monopoly.
2. If a Party intends to designate a monopoly and the designation may affect the interests of a person of the other Party, the designating Party shall, whenever possible, provide prior written notification of the designation to the other Party.
3. Each Party shall ensure that a privately owned monopoly that it designates or a government monopoly that it maintains or designates:
(a) acts in a manner that is consistent with the Party's obligations under this Agreement whenever that monopoly exercises regulatory, administrative, or other governmental authority that the Party has delegated to it in connection with the monopoly good or service, such as the power to grant import or export licenses, approve commercial transactions, or impose quotas, fees or other charges;
(b) except to comply with a term of its designation that is consistent with subparagraph (c) or (d), acts solely in accordance with commercial considerations in its purchase or sale of the monopoly good or service in the relevant market, including with regard to price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale;
(c) provides non-discriminatory treatment to investments of investors of the other Party, to goods of the other Party, and to service providers of the other Party when it purchases or sells the monopoly good or service in the relevant market; and
(d) does not use its monopoly position to engage, directly or indirectly, including through its dealings with its parent, subsidiaries, or other enterprises with common ownership, in anti-competitive practices in a non-monopolized market in its territory that adversely affect an investment of an investor of the other Party.
4. Paragraph 3 does not apply to procurement by governmental agencies of a good or service for governmental purposes as long as the good or service is not intended for:
(a) commercial resale; or
(b) use in the production of a good or the provision of a service for commercial sale.
Article 15.4. State Enterprises
1. This Agreement does not prevent a Party from establishing or maintaining a state enterprise.
2. Each Party shall ensure that a state enterprise that it establishes or maintains acts in a manner that is consistent with the Party's obligations under Chapters Ten (Investment) and Thirteen (Financial Services), whenever that enterprise exercises regulatory, administrative, or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant licenses, approve commercial transactions, or impose quotas, fees, or other charges.
3. Each Party shall ensure that a state enterprise that it establishes or maintains accords non-discriminatory treatment in the sale of its goods or services to investments in the Party's territory of investors of the other Party.
Article 15.5. Interpretation and Application
The Parties shall endeavour to come to a mutual understanding on the interpretation and application of this Chapter, and shall make every attempt through cooperation and discussions to resolve, to their mutual satisfaction, a matter that might affect the operation of this Chapter.
Article 15.6. Dispute Settlement
An investor may not have recourse to investor-state dispute settlement under Article 10.19 (Investment - Claim by an Investor of a Party on Its Own Behalf) or Article 10.20 (Investment - Claim by an Investor of a Party on Behalf of an Enterprise) for a matter arising under this Chapter, except for a matter arising under Article 15.3(3)(a) or Article 15.4(2).
Annex 15.4. Country-Specific Definitions of State Enterprise
For the purposes of Article 15.4(3) “state enterprise” means, with respect to Canada, a “Crown corporation” within the meaning of the Financial Administration Act,R.S.C. 1985, c. F-11, a Crown corporation within the meaning of any comparable provincial law, or an equivalent entity that is incorporated under other applicable provincial law.
Chapter Sixteen. ELECTRONIC COMMERCE
Article 16.1. Definitions
For the purposes of this Chapter:
digital product means a computer program, text, video, image, sound recording, or other product that is digitally encoded; but does not include a digitized representation of a financial instrument;
transmitted electronically means to transfer a digital product by electromagnetic means, including by photonic means.
Article 16.2. General Provisions
1. The Parties recognize the economic growth and opportunities provided by electronic commerce and recognize that WTO rules apply to electronic commerce to the extent that they affect electronic commerce.
2. Considering the potential of electronic commerce as a social and economic development tool, the Parties recognize the importance of:
(a) clarity, transparency, and predictability in their domestic regulatory frameworks in facilitating, to the maximum extent possible, the development of electronic commerce;
(b) encouraging self-regulation by the private sector to promote trust and confidence in electronic commerce;
(c) facilitating electronic commerce through interoperability, innovation, and competition;
(d) facilitating the use of electronic commerce by micro-, small-, and medium- sized enterprises; and
(e) protecting personal information in the on-line environment.
Article 16.3. Customs Duties on Digital Products Transmitted Electronically
1. A Party may not impose a customs duty, fee, or charge, on or in connection with the importation or exportation of a digital product transmitted electronically.
2. For greater certainty, paragraph 1 does not preclude a Party from imposing an internal tax or other internal charge on a digital product transmitted electronically, provided that the tax or charge is not prohibited by this Agreement.
Article 16.4. Consumer Protection
1. The Parties recognize the importance of maintaining and adopting transparent and effective measures to protect consumers from fraudulent or deceptive commercial practices in electronic commerce.
2. To this end, the Parties should exchange information and experiences related to national approaches for the protection of consumers engaging in electronic commerce.
Article 16.5. Cooperation
Recognizing the global nature of electronic commerce, the Parties affirm the importance of:
(a) working together to facilitate the use of electronic commerce by micro-, small-, and medium-sized enterprises;
(b) sharing information and experiences on laws, regulations, and programs involving electronic commerce, including those related to data privacy, consumer confidence, security in electronic communications, authentication, intellectual property rights, and electronic government;
(c) working to maintain cross-border flows of information as an essential element in fostering a vibrant environment for electronic commerce;
(d) fostering electronic commerce through the encouragement of the private sector to adopt codes of conduct, model contracts, guidelines, and enforcement mechanisms; and
(e) actively participating in regional and multilateral fora to promote the development of electronic commerce.
Article 16.6. Transparency
Further to Article 20.3 (Transparency - Publication), each Party shall promptly publish or otherwise make publicly available its laws, regulations, procedures, and administrative rulings of general application, that pertain to electronic commerce.
Article 16.7. Relation to other Chapters
In the event of an inconsistency between this Chapter and another Chapter of this Agreement, the other Chapter prevails to the extent of the inconsistency.
Chapter Seventeen. GOVERNMENT PROCUREMENT
Article 17.1. Definitions
For the purposes of this Chapter:
in writing or written means a worded or numbered expression that can be read, reproduced and later communicated; it may include electronically transmitted and stored information;
limited tendering means a procurement method by which the procuring entity contacts a supplier of its choice and may, in the circumstances set out in Article 17.11(2), choose not to apply Articles 17.6, 17.7, 17.9, 17.10, 17.12 and 17.13;
offsets means a condition or undertaking that encourages local development or improves a Party’s balance-of-payments accounts, such as the use of domestic content, investment, counter-trade, the licensing of technology or similar actions or requirements;
open tendering procedure means a procurement method by which all interested suppliers may submit a tender;
original development includes limited production or supply in order to incorporate the results of field testing and to demonstrate that the good or service is suitable for production or supply in quantity to acceptable quality standards, but does not include quantity production or supply to establish commercial viability or to recover research and development costs;
procurement means the process by which a procuring entity obtains the use of or acquires a good or service for a governmental purpose and not with a view to commercial sale or resale, or use in the production or supply of a good or service for commercial sale or resale;
procuring entity means an entity of a Party listed in Annexes 17.1 or 17.2;
publish means to disseminate information in an electronic or paper medium that is widely distributed and that is readily accessible to the general public;
service includes a construction service, unless otherwise specified;
supplier means a person that has provided, provides or could provide a good or service to a procuring entity; and
technical specification means a tendering requirement that:
(a) lays down the characteristics of a good or service to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
(b) addresses terminology, symbols, packaging, marking or labeling requirements, as they apply to a good or service.
Article 17.2. Scope and Coverage
1. This Chapter applies to a measure regarding a covered procurement.
2. For the purposes of this Chapter, covered procurement means procurement for a governmental purpose:
(a) of a good, service, or both:
(i) as specified in each Party’s schedules to the annexes of this Chapter; and
(ii) not procured with a view to commercial sale or resale, or for use in the production or supply of a good or service for commercial sale or resale;
(b) by a contractual means, including: purchase; lease, rental or hire purchase, with or without an option to buy;
(c) for which the value, as estimated in accordance with paragraph 6, equals or exceeds the relevant threshold specified in a Party’s annexes to this Chapter, at the time of publication of a notice in accordance with Article 17.6;
(d) by a procuring entity; and
(e) that is not otherwise excluded from coverage in paragraph 3 or a Party’s schedules to the annexes of this Chapter.
3. This Chapter does not apply to:
(a) the acquisition or rental of land, existing buildings or other immovable property or rights on that property;
(b) a non-contractual agreement or form of assistance that a Party including a state enterprise provides, such as a grant, loan, equity infusion, fiscal incentive, subsidy, guarantee, or cooperative agreement;
(c) government provision of a good or service to a person or a sub-national government;
(d) a purchase for the direct purpose of providing foreign assistance;
(e) a purchase funded by a grant, loan or other assistance made to a Party or an entity of a Party by a person, international entity, association, international organization, or other State or foreign government if the provision of that assistance is subject to conditions that are inconsistent with this Chapter;
(f) the procurement of a fiscal agency or depository service, liquidation and management service for a regulated financial institution, or a service related to the sale, redemption and distribution of public debt;
(g) the procurement of a banking, financial, or specialized service related to:
(i) the incurring of public indebtedness, or
(ii) public debt management;
(h) the hiring of a government employee or related employment measure;
(i) a good or service component of a contract awarded by an entity that is not listed in Annexes 17.1 or 17.2;
(j) a purchase made under exceptionally advantageous conditions that only arises in the very short term such as an unusual disposal by an enterprise or a disposal of business assets due to liquidation or receivership but not a routine purchase from a regular supplier.
4. If a procuring entity awards a contract that is not covered by this Chapter, this Chapter does not cover a good or service component of that contract.
5. Nothing in this Chapter prevents a Party from developing new procurement policies, procedures or contractual means, provided they are not inconsistent with this Chapter.
Valuation
6. In estimating the value of a procurement in order to ascertain whether it is a procurement covered by this Chapter, a procuring entity shall:
(a) not divide a procurement into separate procurements or select or use a particular valuation method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Chapter;
(b) include the estimated maximum total value of the procurement over its entire duration, whether awarded to one or more suppliers, taking into account all forms of remuneration, including:
(i) premiums, fees, commissions, and interest, and
(ii) the estimated maximum total value of the procurement, inclusive of optional purchases, if the procurement provides for the possibility of an options clause; and
(c) base its calculation of the total maximum value of the procurement over its entire duration, if the procurement is to be conducted in multiple parts with contracts to be awarded at the same time or over a given period to one or more suppliers.
Article 17.3. Security and General Exceptions
1. This Chapter does not prevent a Party from taking an action or not disclosing information that it considers necessary for the protection of its essential security interests relating to procurement:
(a) of arms, ammunition or war materials;
(b) indispensable for national security; or
(c) for national defence purposes.
2. Provided that a measure is not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination against a Party if the same conditions prevail, or a disguised restriction on trade between the Parties, a Party may adopt or maintain a measure:
(a) necessary to protect public morals, order or safety;
(b) including an environmental measure, necessary to protect human, animal or plant life or health;
(c) necessary to protect intellectual property; or
(d) relating to a good or service of a person with a disability, a philanthropic
institution or prison labour.
Article 17.4. General Principles
National Treatment and Non-Discrimination
1. With respect to a measure regarding a covered procurement, each Party, including its procuring entities, shall accord to a good or service of the other Party, and to a supplier of the other Party of that good or service, treatment no less favourable than the most favourable treatment the Party or entity accords to a domestic good, service or supplier.
2. With respect to a measure regarding a covered procurement, a Party, including its procuring entities, may not:
(a) treat a locally established supplier less favourably than another locally established supplier on the basis of degree of foreign affiliation or ownership; or
(b) discriminate against a locally established supplier on the basis that the good or service offered by that supplier for a particular procurement is a good or service of the other Party.
Rules of Origin
3. With regard to the procurement of a good covered by this Chapter, each Party shall apply the rules of origin that it applies to that good in the normal course of trade.
Offsets
4. Subject to this Chapter, a Party, including its procuring entities, shall not seek, take account of, or impose offsets at a stage of a procurement process.
Measures Not Specific to Procurement
5. This Article does not apply to: