Title
COMPREHENSIVE AND PROGRESSIVE AGREEMENT FOR TRANS-PACIFIC PARTNERSHIP
Preamble
The Parties to this Agreement, resolving to :
REAFFIRM the matters embodied in the preamble to the Trans-Pacific Partnership Agreement, done at Auckland on 4 February 2016 (hereinafter referred to as "the TPP");
REALISE expeditiously the benefits of the TPP through this Agreement and their strategic and economic significance;
CONTRIBUTE to maintaining open markets, increasing world trade, and creating new economic opportunities for people of all incomes and economic backgrounds;
PROMOTE further regional economic integration and cooperation between them;
ENHANCE opportunities for the acceleration of regional trade liberalisation and investment;
REAFFIRM the importance of promoting corporate social responsibility, cultural identity and diversity, environmental protection and conservation, gender equality, indigenous rights, labour rights, inclusive trade, sustainable development and traditional knowledge, as well as the importance of preserving their right to regulate in the public interest; and
WELCOME the accession of other States or separate customs territories to this Agreement,
HAVE AGREED as follows :
Body
Article 1. Incorporation of the Trans-pacific Partnership Agreement
1. The Parties hereby agree that, under the terms of this Agreement, the provisions of the Trans-Pacific Partnership Agreement, done at Auckland on 4 February 2016 ("the TPP") are incorporated, by reference, into and made part of this Agreement mutatis mutandis, except for Article 30.4 (Accession), Article 30.5 (Entry into Force), Article 30.6 (Withdrawal) and Article 30.8 (Authentic Texts).(1)
2. For the purposes of this Agreement, references to the date of signature in the TPP shall mean the date of signature of this Agreement.
3. In the event of any inconsistency between this Agreement and the TPP, when the latter is in force, this Agreement shall prevail to the extent of the inconsistency.
Article 2. Suspension of the Application of Certain Provisions
Upon the date of entry into force of this Agreement, the Parties shall suspend the application of the provisions set out in the Annex to this Agreement, until the Parties agree to end suspension of one or more of these provisions. (2)
Article 3. Entry Into Force
1. This Agreement shall enter into force 60 days after the date on which at least six or at least 50 per cent of the number of signatories to this Agreement, whichever is smaller, have notified the Depositary in writing of the completion of their applicable legal procedures.
2. For any signatory to this Agreement for which this Agreement has not entered into force under paragraph 1, this Agreement shall enter into force 60 days after the date on which that signatory has notified the Depositary in writing of the completion of its applicable legal procedures.
Article 4. Withdrawal
1. Any Party may withdraw from this Agreement by providing written notice of withdrawal to the Depositary. A withdrawing Party shall simultaneously notify the other Parties of its withdrawal through the overall contact points designated under Article 27.5 (Contact Points) of the TPP.
2. A withdrawal shall take effect six months after a Party provides written notice to the Depositary under paragraph 1, unless the Parties agree on a different period. If a Party withdraws, this Agreement shall remain in force for the remaining Parties.
Article 5. Accession
After the date of entry into force of this Agreement, any State or separate customs territory may accede to this Agreement, subject to such terms and conditions as may be agreed between the Parties and that State or separate customs territory.
Article 6. Review of the Comprehensive and Progressive Agreement for Trans-pacific Partnership
Further to Article 27.2 (Functions of the Commission) of the TPP, if the entry into force of the TPP is imminent or if the TPP is unlikely to enter into force, the Parties shall, on request of a Party, review the operation of this Agreement so as to consider any amendment to this Agreement and any related matters.
Article 7. Authentic Texts
The English, Spanish and French texts of this Agreement are equally authentic. In the event of any divergence between those texts, the English text shall prevail.
In witness whereof the undersigned, being duly authorised by their respective Governments, have signed this Agreement.
DONE at Santiago the eighth day of March, two thousand and eighteen, in the English, French and Spanish languages.
Annex (3)
1. Chapter 5 (Customs Administration and Trade Facilitation) Article 5.7 (Express Shipments) – paragraph 1 – subparagraph (f): second sentence
2. Chapter 9 (Investment)
(a) Article 9.1 (Definitions):
(i) definition of investment agreement including footnotes 5 through 9;
(ii) definition of investment authorisation including footnotes 10 and 11;
(b) Article 9.19 (Submission of a Claim to Arbitration)
(i) paragraph 1:
(A) subparagraph (a)(i)(B) including footnote 31;
(B) subparagraph (a)(i)(C);
(C) subparagraph (b)(i)(B);
(D) subparagraph (b)(i)(C);
(E) the chaussette "provided that a claimant may submit pursuant to subparagraph (a)(i)(C) or (b)(i)(C) a claim for breach of an investment agreement only if the subject matter of the claim and the claimed damages directly relate to the covered investment that was established or acquired, or sought to be established or acquired, in reliance on the relevant investment agreement.";
(ii) paragraph 2: all of this paragraph including footnote 32;
(iii) paragraph 3 – subparagraph (b): the phrase "investment authorisation or investment agreement";
(c) Article 9.22 (Selection of Arbitrators): paragraph 5;
(d) Article 9.25 (Governing Law): paragraph 2 including footnote 35;
(e) Annex 9-L (Investment Agreements): all of this Annex
3. Chapter 10 (Cross-Border Trade in Services) Annex 10-B (Express Delivery Services):
(a) paragraph 5 including footnote 13;
(b) paragraph 6 including footnote 14
4. Chapter 11 (Financial Services)
(a) Article 11.2 (Scope) – paragraph 2 – subparagraph (b): the phrase "Article 9.6 (Minimum Standard of Treatment)" including footnote 3;
(b) Annex 11-E: all of this Annex
5. Chapter 13 (Telecommunications)
Article 13.21 (Resolution of Telecommunications Disputes) – paragraph 1: subparagraph (d) including the heading "Reconsideration" and footnote 22
6. Chapter 15 (Government Procurement)
(a) Article 15.8 (Conditions for Participation): paragraph 5 including footnote 1;
(b) Article 15.24 (Further Negotiations) – paragraph 2: the phrase "No later than three years after the date of entry into force of this Agreement" (4)
7. Chapter 18 (Intellectual Property)
(a) Article 18.8 (National Treatment): the last two sentences of footnote 4;
(b) Article 18.37 (Patentable Subject Matter)
(i) paragraph 2: all of this paragraph;
(ii) paragraph 4: the last sentence;
(c) Article 18.46 (Patent Term Adjustment for Unreasonable Granting Authority Delays): all of this Article including footnotes 36 through 39;
(d) Article 18.48 (Patent Term Adjustment for Unreasonable Curtailment): all of this Article including footnotes 45 through 48;
(e) Article 18.50 (Protection of Undisclosed Test or Other Data): all of this Article including footnotes 50 through 57;
(f) Article 18.51 (Biologics): all of this Article including footnotes 58 through 60;
(g) Article 18.63 (Term of Protection for Copyright and Related Rights): all of this Article including footnotes 74 through 77;
(h) Article 18.68 (Technological Protection Measures (TPMs)): all of this Article including footnotes 82 through 95;
(i) Article 18.69 (Rights Management Information (RMI)): all of this Article including footnotes 96 through 99;
(j) Article 18.79 (Protection of Encrypted Program-Carrying Satellite and Cable Signals): all of this Article including footnotes 139 through 146;
(k) Article 18.82 (Legal Remedies and Safe Harbours): all of this Article including footnotes 149 through 159;
(l) Annex 18-E (Annex to Section J): all of this Annex;
(m) Annex 18-F (Annex to Section J): all of this Annex
8. Chapter 20 (Environment)
Article 20.17 (Conservation and Trade) – paragraph 5: the phrase "or another applicable law" including footnote 26
9. Chapter 26 (Transparency and Anti-Corruption)
Annex 26-A (Transparency and Procedural Fairness for Pharmaceutical Products and Medical Devices): Article 3 (Procedural Fairness) including footnotes 11 through 16
10. Annex II
Schedule of Brunei Darussalam – 14 – paragraph 3: the phrase "after the signature of this Agreement" (5)
11. Annex IV
Schedule of Malaysia – 3 and 4 – Scope of Non-Conforming Activities (hereinafter referred to as the "Scope"): all references to the phrase "after signature of this Agreement" (6)
Preamble
The Parties to this Agreement, resolving to:
ESTABLISH a comprehensive regional agreement that promotes economic integration to liberalise trade and investment, bring economic growth and social benefits, create new opportunities for workers and businesses, contribute to raising living standards, benefit consumers, reduce poverty and promote sustainable growth;
STRENGTHEN the bonds of friendship and cooperation between them and their peoples;
BUILD on their respective rights and obligations under the Marrakesh Agreement Establishing the World Trade Organization;
RECOGNISE the differences in their levels of development and diversity of economies;
STRENGTHEN the competitiveness of their businesses in global markets and enhance the competitiveness of their economies by promoting opportunities for businesses, including promoting the development and strengthening of regional supply chains;
SUPPORT the growth and development of micro, small and medium- sized enterprises by enhancing their ability to participate in and benefit from the opportunities created by this Agreement;
ESTABLISH a predictable legal and commercial framework for trade and investment through mutually advantageous rules;
FACILITATE regional trade by promoting efficient and transparent customs procedures that reduce costs and ensure predictability for their importers and exporters;
RECOGNISE their inherent right to regulate and resolve to preserve the flexibility of the Parties to set legislative and regulatory priorities, safeguard public welfare, and protect legitimate public welfare objectives, such as public health, safety, the environment, the conservation of living or non-living exhaustible natural resources, the integrity and stability of the financial system and public morals;
RECOGNISE further their inherent right to adopt, maintain or modify health care systems;
AFFIRM that state-owned enterprises can play a legitimate role in the diverse economies of the Parties, while recognising that the provision of unfair advantages to state-owned enterprises undermines fair and open trade and investment, and resolve to establish rules for state-owned enterprises that promote a level playing field with privately owned businesses, transparency and sound business practices;
PROMOTE high levels of environmental protection, including through effective enforcement of environmental laws, and further the aims of sustainable development, including through mutually supportive trade and environmental policies and practices;
PROTECT and enforce labour rights, improve working conditions and living standards, strengthen cooperation and the Parties' capacity on labour issues;
PROMOTE transparency, good governance and the rule of law, and eliminate bribery and corruption in trade and investment;
RECOGNISE the important work that their relevant authorities are doing to strengthen macroeconomic cooperation, including on exchange rate issues, in appropriate fora;
RECOGNISE the importance of cultural identity and diversity among and within the Parties, and that trade and investment can expand opportunities to enrich cultural identity and diversity at home and abroad;
CONTRIBUTE to the harmonious development and expansion of world trade and provide a catalyst to broader regional and international cooperation;
ESTABLISH an Agreement to address future trade and investment challenges and opportunities, and contribute to advancing their respective priorities over time; and
EXPAND their partnership by encouraging the accession of other States or separate customs territories in order to further enhance regional economic integration and create the foundation of a Free Trade Area of the Asia Pacific,
HAVE AGREED as follows:
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Chapter 1. INITIAL PROVISIONS AND GENERAL DEFINITIONS
Section A. Initial Provisions
Article 1.1. Establishment of a Free Trade Area
The Parties, consistent with Article XXIV of GATT 1994 and Article V of GATS, hereby establish a free trade area in accordance with the provisions of this Agreement.
Article 1.2. Relation to other Agreements
1. Recognising the Parties'intention for this Agreement to coexist with their existing international agreements, each Party affirms:
(a) in relation to existing international agreements to which all Parties are party, including the WTO Agreement, its existing rights and obligations with respect to the other Parties; and
(b) in relation to existing international agreements to which that Party and at least one other Party are party, its existing rights and obligations with respect to that other Party or Parties, as the case may be.
2. If a Party considers that a provision of this Agreement is inconsistent with a provision of another agreement to which it and at least one other Party are party, on request, the relevant Parties to the other agreement shall consult with a view to reaching a mutually satisfactory solution. This paragraph is without prejudice to a Party's rights and obligations under Chapter 28 (Dispute Settlement). (1)
Section B. General Definitions
Article 1.3. General Definitions
For the purposes of this Agreement, unless otherwise provided in this Agreement:
AD Agreement means the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, sct out in Annex 1A to the WTO Agreement;
Agreement means the Trans-Pacific Partnership Agreement; APEC means Asia-Pacific Economic Cooperation;
central level of government has for cach Party the meaning set out in Annex 1-A (Party-Specific Definitions);
Commission means the Trans-Pacific Partnership Commission established under Article 27.1 (Establishment of the Trans-Pacific Partnership Commission),
covered investment means, with respect to a Party, an investment in its territory of an investor of another Party in existence as of the date of entry into force of this Agreement for those Parties or established, acquired, or expanded thereafter;
customs administration means the competent authority that is responsible under the laws of a Party for the administration of customs laws, regulations and, where applicable, policies, and has for each Party the meaning set out in Annex 1-A (Party-Specific Definitions);
customs duty includes any duty or charge of any kind imposed on or in connection with the importation of a good, and any surtax or surcharge imposed in
connection with such importation, but does not include any:
(a) charge equivalent to an internal tax imposed consistently with Article I:2 of GATT 1994;
(b) fee or other charge in connection with the importation commensurate with the cost of services rendered; or
(c) antidumping or countervailing duty; Customs Valuation Agreement means the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, sct out in Annex 1A to the WTO Agreement,
days means calendar days;
enterprise means any entity constituted or organised under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, including any corporation, trust, partnership, sole proprietorship, joint venture, association or similar organisation;
existing means in effect on the date of entry into force of this Agreement;
GATS means the General Agreement on Trade in Services, sct out in Annex 1B to the WTO Agreement,
GATT 1994 means the General Agreement on Tariffs and Trade 1994, set out in Annex 1A to the WTO Agreement;
goods means any merchandise, product, article or material;
goods of a Party means domestic products as these are understood in GATT 1994 or such goods as the Parties may agree, and includes originating goods of a Party;
government procurement means the process by which a government obtains the use of or acquires goods or services, or any combination thereof, for governmental purposes and not with a view to commercial sale or resale or use in the production or supply of goods or services for commercial sale or resale;
Harmonized System (HS) means the Harmonized Commodity Description and Coding System, including its General Rules of Interpretation, Section Notes, Chapter Notes and Subheading Notes as adopted and implemented by the Parties in their respective laws;
heading means the first four digits in the tariff classification number under the Harmonized System;
measure includes any law, regulation, procedure, requirement or practice;