2. Each Party shall ensure that its entities, on request from a supplier of a Party, promptly provide information including:
(a) pertinent information concerning the reasons why the supplier's application to qualify was rejected, why its existing qualification was brought to an end and why it was not selected; and
(b) when the supplier is an unsuccessful tenderer, pertinent information concerning the reasons why its tender was not selected and on the characteristics and relative advantages of the tender selected as well as the name of the winning tenderer.
3. Where a supplier of a Party is an unsuccessful tenderer, the Party may seek, without prejudice to the provisions under Chapter 16, such additional information on the contract award, as may be necessary to ensure that the procurement was made fairly and impartially. The other Party shall provide information on both the characteristics and relative advantages of the winning tender and the contract price. Normally this latter information may be disclosed by the former Party provided it exercises this right with discretion. In cases where release of this information would prejudice competition in future tenders, this information shall be confidential and not be disclosed except after consultation with and agreement of the other Party.
Article 149. Challenge Procedures
1. In the event of a complaint by a supplier that there has been a breach of this Chapter in the context of a government procurement, the procuring entity shall accord impartial and timely consideration to any such complaint, in a manner that is not prejudicial to obtaining corrective measures under the challenge system.
2. Each Party shall provide non-discriminatory, timely, transparent and effective procedures enabling suppliers to challenge alleged breaches of this Chapter arising in the context of procurements in which they have, or have had, an interest.
3. Each Party shall provide its challenge procedures in writing and make them generally available.
4. Each Party shall ensure that documentation relating to all aspects of the process concerning government procurement covered by this Chapter shall be retained at least for three years.
5. The interested supplier may be required to initiate a challenge procedure and notify the procuring entity within specified time-limits from the time when the basis of the complaint is known or reasonably should have been known, but in no case within a period of less than 10 days.
6. Challenges shall be heard by an impartial and independent reviewing authority with no interest in the outcome of the government procurement and the members of which are secure from external influence during the term of appointment. A reviewing authority which is not a court shall either be subject to judicial review or shall have procedures which provide at least the following:
(a) participants can be heard before an opinion is given or a decision is reached;
(b) participants can be represented and accompanied;
(c) participants shall have access to all proceedings;
(d) proceedings can take place in public;
(e) opinions or decisions are given in writing with a Statement describing the basis for the opinions or decisions;
(f) witnesses can be presented; and
(g) documents are disclosed to the reviewing authority.
7. Challenge procedures shall provide for:
(a) rapid interim measures to correct breaches of this Chapter and to preserve commercial opportunities. Such action may result in suspension of the procurement process. However, procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account in deciding whether such measures should be applied;
(b) an assessment and, where appropriate, a decision on the justification of the challenge; and
(c) where appropriate, correction of breaches of this Chapter or compensation for the loss or damages suffered, which may be limited to costs for tender preparation or protest.
8. With a view to the preservation of the commercial and other interests involved, the challenge procedure shall normally be completed within a reasonable time.
Article 150. Use of Electronic Communications In Procurement
1. The Parties shall seek to provide opportunities for government procurement to be undertaken through the Internet or a comparable computer-based telecommunications network.
2. In order to facilitate commercial opportunities for its suppliers under this Chapter, each Party shall endeavor to adopt or maintain a single electronic portal for access to comprehensive information on government procurement supply opportunities in its Area, and information on measures relating to government procurement shall be available.
3. The Parties shall encourage, to the extent possible, the use of electronic means for the provision of tender documents and the receipt of tenders.
4. The Parties shall endeavor to ensure the adoption of policies and procedures for the use of electronic means in government procurement that:
(a) protect documentation from unauthorized and undetected alteration; and
(b) provide appropriate levels of security for data on, and passing through, the procuring entity's network.
Article 151. Exceptions
Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties where the same conditions prevail, or a disguised restriction on trade, nothing in this Chapter shall be construed to prevent a Party from imposing, enforcing or maintaining measures:
(a) necessary to protect public morals, order or safety;
(b) necessary to protect human, animal or plant life or health;
(c) necessary to protect intellectual property; or
(d) relating to goods or services of handicapped persons, of philanthropic institutions, or of prison labor.
Article 152. Rectifications or Modifications
1. A Party shall notify the other Party of its rectifications, or in exceptional cases, other modifications relating to Annex 14 along with the information as to the likely consequences of the change for the mutually agreed coverage provided in this Chapter.
2. If the rectifications or other modifications are of a purely formal or minor nature, notwithstanding Article 197, they shall become effective provided that no objection from the other Party has been raised within 30 days. In other cases, both Parties shall consult the proposal and any claim for compensatory adjustments with a view to maintaining a balance of rights and obligations and a comparable level of mutually agreed coverage provided in this Chapter prior to such rectification or other modification.
3. In the event of an agreement between the Parties not being reached, the Party which has received such notification may have recourse to the dispute settlement procedure under Chapter 16.
Note: Notwithstanding any other provision of this Chapter, a Party may undertake reorganizations of its entities, including programs through which the procurement of such entities is decentralized or the corresponding government functions cease to be performed by any government entity, whether or not subject to this Chapter. In cases of reorganizations, compensation need not be proposed. Neither Party shall undertake such reorganizations to avoid the obligations of this Chapter.
Article 153. Privatization of Entities
When government control at the central or national government level over an entity specified in Part 1 of Annex 14 has been effectively eliminated, notwithstanding that the government may possess holding thereof or appoint member of the board of directors thereto, this Chapter shall no longer apply to that entity and compensation need not be proposed. A Party shall notify the other Party of the name of such entity before elimination of government control or as soon thereafter as possible.
Article 154. Denial of Benefits
1. A Party may deny the benefits of this Chapter to an enterprise of the other Party if the enterprise is owned or controlled by persons of a non-Party and the former Party:
(a) does not maintain diplomatic relations with the non-Party; or
(b) adopts or maintains measures with respect to the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise.
2. Subject to prior notification and consultation, a Party may deny the benefits of this Chapter to a supplier of the other Party that is an enterprise of the other Party where the denying Party establishes that the enterprise is owned or controlled by persons of a non-Party and has no substantial business activities in the Area of the other Party.
Article 155. Further Negotiations
In the event that after the entry into force of this Agreement a Party offers a non-Party additional advantages of access to its government procurement market beyond what the other Party has been provided with under this Chapter, the former Party shall, upon request of the other Party, enter into negotiations with the other Party with a view to extending those advantages to the other Party ona reciprocal basis.
Article 156. Committee on Government Procurement
1. For the purposes of the effective implementation and operation of this Chapter, the Parties hereby establish a Committee on Government Procurement (hereinafter referred to in this Article as "Committee").
2. The functions of the Committee shall be:
(a) reviewing and monitoring the implementation and operation of this Chapter;
(b) analyzing available information on each Party's government procurement market;
(c) reporting the findings of the Committee to the Commission; and
(d) carrying out other functions as may be delegated by the Commission in accordance with Article 190.
3. The Committee shall be composed of government officials of the Parties.
4. The Committee shall meet at such venues and times as may be agreed by the Parties.
Article 157. Definition
For the purposes of this Chapter, the term "supplier" Means a person that provides or could provide goods or services to an entity.
Chapter 13. Intellectual Property
Article 158. General Provisions
1. The Parties shall ensure adequate, effective and non- discriminatory protection of intellectual property, promote efficiency and transparency in administration of intellectual property protection system, and provide for measures for adequate and effective enforcement of intellectual property rights against infringement, counterfeiting and piracy, in accordance with the provisions of this Chapter and the international agreements to which both Parties are parties.
2. The Parties may take appropriate measures to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology, provided that such measures are consistent with the provisions of this Agreement and the TRIPS Agreement.
3. The Parties affirm their existing rights and obligations under the TRIPS Agreement and other multilateral agreements relating to intellectual property to which both Parties are parties. Nothing in this Chapter shall derogate from existing rights and obligations that the Parties have under the TRIPS Agreement or other multilateral agreements relating to intellectual property to which both Parties are parties.
4. For the purposes of this Chapter, intellectual property refers to all categories of intellectual property:
(a) that are subject of Articles 161 through 163; and/or
(b) that are under the TRIPS Agreement and/or the relevant international agreements referred to in the TRIPS Agreement.
Article 159. Streamlining of Procedural Matters
1. For the purposes of providing efficient administration of intellectual property system, each Party shall take measures to streamline its administrative procedures concerning intellectual property.
2. Each Party shall use a classification for patents and utility models in accordance with the Strasbourg Agreement Concerning the International Patent Classification, of March 24, 1971, as amended. Each Party shall use a classification of goods and services in accordance with the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, of June 15, 1957, as amended.
Article 160. Transparency
For the purposes of further promoting transparency in administration of intellectual property system, each Party shall, in accordance with its laws and regulations, take appropriate measures to make available to the public information on its efforts to provide effective enforcement of intellectual property rights and other information with regard to intellectual property system.
Article 161. Trademarks
Each Party shall afford an opportunity for interested parties to oppose to an application for registration of or a registration of, and to request the cancellation of the registration of, a trademark, in accordance with its laws and regulations.
Article 162. New Varieties of Plants
Each Party shall become a party, if it is not a party, to the 1991 Act of International Convention for the Protection of New Varieties of Plants, by January 1, 2009.
Article 163. Geographical Indications
1. The Parties agree that indications for wines and spirits listed in Annex 15 are geographical indications referred to in paragraph 1 of Article 22 of the TRIPS Agreement, and shall abide by the obligations under the relevant provisions of the TRIPS Agreement with respect to the protection of geographical indications.
2. Notwithstanding paragraph 2 of Article 197, modifications to Annex 15 proposed by both Parties may be adopted by the Commission pursuant to subparagraph 1(d) (i) of Article 190. The adopted modifications shall be confirmed by an exchange of diplomatic notes.
Article 164. Enforcement
1. Each Party shall provide for procedures concerning the suspension by its customs authority of the release of the goods infringing patents, utility models, industrial designs, trademarks, or copyrights or related rights, which are destined for importation into, or exportation from, the Party.
2. Each Party shall ensure that its judicial authorities have the authority to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that personâs intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity.
3. Each Party shall provide for criminal procedures and penalties to be applied in cases of trademark counterfeiting or copyright piracy, committed willfully and on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity.
Article 165. Committee on Intellectual Property
1. For the purposes of the effective implementation and operation of this Chapter, the Parties hereby establish a Committee on Intellectual Property (hereinafter referred to in this Article as "Committee").
2. The functions of the Committee shall be:
(a) reviewing and monitoring the implementation and operation of this Chapter;
(b) discussing any issues related to intellectual property, such as:
(i) areas and forms of cooperation in the field of intellectual property;
(ii) enforcement of intellectual property rights; (iii) geographical indications; and
(iv) public awareness concerning protection of intellectual property;
(c) reporting the findings of the Committee to the Commission; and
(d) carrying out other functions as may be delegated by the Commission in accordance with Article 190.
3. The Committee shall be composed of government officials of the Parties.
4. The Committee shall meet at such venues and times as may be agreed by the Parties.
Chapter 14. Competition
Article 166. General Provision
Each Party shall, in accordance with its laws and regulations and in a manner consistent with this Chapter, take measures which it considers appropriate against anti- competitive activities so as to avoid that the benefits of the liberalization of trade and investment may be diminished or nullified by such activities.
Article 167. Cooperation on Controlling Anti-competitive Activities
The Parties shall, in accordance with their respective laws and regulations, cooperate in the field of controlling anti-competitive activities subject to their respective available resources.
Article 168. Non-Discrimination
Each Party shall apply its competition laws and regulations in a manner which does not discriminate between persons in like circumstances on the basis of their nationality.
Article 169. Procedural Fairness
Each Party shall implement administrative and judicial procedures in a fair manner to control anti-competitive activities, pursuant to its relevant laws and regulations.
Article 170. Transparency
Each Party shall promote transparency of the implementation of its competition laws and regulations and its competition policy.
Article 171. Non-Application of Chapter 16
The dispute settlement procedures provided for in Chapter 16 shall not apply to this Chapter.
Chapter 15. Improvement of Business Environment
Article 172. Consultations for the Improvement of Business Environment
The Parties, confirming their interest in creating a more favorable business environment with a view to promoting trade and investment activities by their private enterprises, shall from time to time have consultations in order to address issues concerning the improvement of business environment in the Parties.
Article 173. Committee on Improvement of Business Environment
1. For the purposes of the effective implementation and operation of this Chapter, the Parties hereby establish a Committee on Improvement of Business Environment
(hereinafter referred to in this Article as "Committee").
2. The functions of the Committee shall be:
(a) discussing ways and means to improve business environment in the Parties;
(b) making, as needed, recommendations to the Parties on appropriate measures to be taken by the Parties;
(c) receiving information on the implementation of such recommendations from the relevant authorities of the Governments of the Parties;
(d) making public, as needed, such recommendations in an appropriate manner;
(e) reporting the findings of the Committee to the Commission; and
(f) carrying out other functions as may be delegated by the Commission in accordance with Article 190.
3. The Committee shall be composed of government officials of the Parties.
4. The Committee may, by consensus, invite representatives of relevant entities other than the governmental agencies of the Parties with the necessary expertise related to the issues to be discussed.
5. The Committee shall meet at such venues and times as may be agreed by the Parties.
6. The Committee shall cooperate with other relevant committees or working groups with a view to avoiding unnecessary overlap with the works of such committees or working groups.
Article 174. Non-Application of Chapter 16
The dispute settlement procedure provided for in Chapter 16 shall not apply to this Chapter.
Chapter 16. Dispute Settlement
Article 175. Scope
Unless otherwise provided for in this Agreement, this Chapter shall apply with respect to the avoidance or settlement of disputes between the Parties concerning the implementation, interpretation or operation of this Agreement.
Article 176. Choice of Dispute Settlement Procedure
1. Where a dispute regarding any matter arises under both this Agreement and the WTO Agreement, the complaining Party may select the dispute settlement procedure in which to settle the dispute.
2. Notwithstanding paragraph 1, once the complaining Party has requested the establishment of an arbitral tribunal under this Chapter or a panel under Article 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes in Annex 2 to the WTO Agreement with respect to a particular dispute, the arbitral tribunal or panel selected shall be used to the exclusion of the other procedure for that particular dispute.
Article 177. Consultations
1. Either Party may request in writing consultations with the other Party concerning any matter on the implementation, interpretation or operation of this Agreement, including a matter relating to a measure that the other Party proposes to take (hereinafter referred to in this Chapter as "proposed measure").
2. The requesting Party shall set out the reasons for the request, including identification of the measure at issue and an indication of the legal basis for the complaint, and provide sufficient information to enable a full examination of the matter.
3. The Parties shall make every effort to arrive at a mutually satisfactory resolution of the matter through consultations under this Article.
4, The consultations under this Article shall be confidential and without prejudice to the rights of either Party in any further proceedings.
Article 178. Establishment of Arbitral Tribunals
1. The complaining Party that requested consultations under Article 177 may request in writing the establishment of an arbitral tribunal, if the Parties fail to resolve the matter within:
(a) 45 days after the date of receipt of the request for consultations; or
(b) 30 days after the date of receipt of the request for consultations in cases of urgency, including those which concern perishable goods,
provided that the complaining Party considers that any benefits accruing to it directly or indirectly under this Agreement are being nullified or impaired as a result of the failure of the Party complained against to carry out its obligations under this Agreement, or as a result of the application by the Party complained against of measures which are in conflict with its obligations under this Agreement.
2. The request of the establishment of an arbitral tribunal referred to in paragraph 1 may also be made in case where the complaining Party considers that any benefits accruing to it directly or indirectly under Chapters 3 and 4 are being nullified or impaired as a result of the application by the Party complained against of measures which are not in conflict with its obligations under those Chapters.
3. Notwithstanding paragraphs 1 and 2, the establishment of an arbitral tribunal shall not be requested on any Matter relating to a proposed measure.
4. Any request to establish an arbitral tribunal pursuant to this Article shall identify:
(a) the specific measure at issue;
(b) the legal basis of the complaint including the provisions of this Agreement alleged to have been breached and any other relevant provisions; and