Article 8.12. Subsidies
1. A Party which considers that it is adversely affected by a subsidy of the other Party may request ad hoc consultations with that other Party on such matters. The requested Party shall enter into such consultations.
2. The Parties shall review any disciplines agreed under Article XV of the GATS with a view to incorporate them into this Chapter.
Article 8.13. Payments and Transfers
1. Subject to its specific commitments, and except in the circumstances envisaged in Article 8.14, a Party shall not apply restrictions on international transfers and payments for current transactions relating to trade inservices.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties under the Articles of the Agreement of the International Monetary Fund (IMF), including the use of exchange actions which are in conformity with the Articles of the Agreement of the IMF, provided that a Party shall not impose restrictions on any capital transactions inconsistently with its specific commitments regarding such transactions, except under Article 8.14 or at the request ofthe IMF.
Article 8.14. Restrictions to Safeguard the Balance of Payments
Any restriction to safeguard the balance of payments adopted or maintained by a Party under and in conformity with Article XII of the GATS shall apply under this Chapter.
Article 8.15. General Exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade in services, nothing in this Chapter shall be construed to prevent the adoption or enforcement by either Party of measures:
(a) necessary to protect public morals or to maintain public order; (16)
(b) necessary to protect human, animal or plant life or health;
(c) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Chapter including those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on services contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
(iii) safety;
(d) inconsistent with Article 8.5, provided that the difference in treatment is aimed at ensuring the equitable or effective (17) imposition or collection of direct taxes in respect of services or service suppliers of the other Party;
(e) inconsistent with Article 8.3, provided that the difference in treatment is the result of an agreement on the avoidance of double taxation or provisions on the avoidance of double taxation in any other international agreement or arrangement by which the Party is bound.
Article 8.16. Security Exceptions
Nothing in this Chapter shall be construed:
a) to require either Party to furnish any information, the disclosure of which it considers contrary to its essentialsecurityinterests; or
(b) to prevent either Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to the supply of services as carried out directly or indirectly for the purpose of provisioning a military establishment;
(ii) relating to fissionable and fusionable materials or the materials from which they are derived;
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent either Party from taking any action in pursuance of its obligations under the Charter of the United Nations for the maintenance of international peace and security.
Article 8.17. Schedules of Specific Commitments
1. Each Party shall set out in a schedule the specific commitments it undertakes under Articles 8.4, 8.5 and 8.6. With respect to sectors where such commitments are undertaken, each Schedule shall specify:
(a) terms, limitations and conditions on market access;
(b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments referred to in Article 8.6; and
(d) where appropriate, the timeframe for implementation of such commitments; and the date of entry into force of such commitments.
2. Measures inconsistent with both Articles 8.4 and 8.5 shall be dealt with as provided for in paragraph 2 of Article XX of the GATS.
3. The Parties' Schedules of specific commitments are set out in Annex VII.
Article 8.18. Modification of Schedules
1. A Party may modify or withdraw any commitment in its Schedule of specific commitments, at any time after three years have elapsed from the date on which that commitment entered into force provided that:
(a) it notifies the other Party of its intention to modify or withdraw a commitment no later than three months before the intended date of implementation of the modification or withdrawal; and
(b) upon notification of a Party's intent to make such modification, the Parties shall consult and attempt to reach agreement on the appropriate compensatory adjustment.
2. In achieving a compensatory adjustment, the Parties shall endeavour to maintain a general level of mutually advantageous commitment that is not less favourable to trade than provided for in the Schedules of specific commitments prior to such negotiations.
3. Ifagreementunder paragraph1(b)is not reached between the modifying Party and the affected Party within three months, the affected Party may refer the matter to arbitration by an arbitration panel established following the same procedures as provided for in paragraphs 3 to 10 of Article 15.4. Such an arbitration panel shall present its finding as to the ways to ensure that the general level of mutually advantageous commitments under this Chapter is maintained. Articles 15.6 and 15.7 shall apply to the proceedings of such an arbitration panel, mutatis mutandis.
4. The modifying Party may not modify or withdraw its commitment until it has made the necessary adjustments in conformity with the findings of the arbitration in relation to the question of whether paragraph 1(b) is satisfied under paragraph 3. The modification, including compensatory adjustments, which are agreed upon by the Parties, or which are in conformity with the outcome of the arbitration, shall be incorporated into Annex VII in accordance with the procedures set out in Article 16.3.
Article 8.19. Review
With the objective of further liberalising trade in services between them, in particular eliminating substantially all remaining discrimination, the Parties shall review at least every two years, or more frequently if so agreed, their Schedules of specific commitments and their Lists of MFN Exemptions, taking into account in particular any autonomous liberalisation and ongoing work under the auspices of the WTO. The first such review shall take place no later than two years after the entry into force of this Agreement.
Article 8.20. Sub-committee on Trade In Services
1. A SubCommittee on Trade in Services (hereinafter referred to in this Article as the "SubCommittee") is hereby established under the Joint Committeeofthis Agreement.
2. The function of the Sub-Committee shall be:
(a) to monitor the implementation of this Chapter;
(b) to propose agreed solutions in case a problem arises in relation to the implementation of this Chapter;
(c) to request and provide information about each Party's laws and regulations related to trade inservices;
(d) to exchange information on the existing possibilities for each other's service suppliers to access each Party's market;
(e) to examine opportunities and the benefits for the Parties to improve and facilitate market access for each other's service suppliers;
(f) to propose and discuss suggestions to improve the functioning of this Chapter; and
(g) to execute other tasks assigned by the JointCommittee.
3. The SubCommittee shall consider the establishment of working groups as appropriate.
4. The SubCommittee shall be cochaired, and meet once every two years, unless otherwise agreed by the Parties. The SubCommittee meetings may be conducted by any agreed method.
5. The SubCommittee shall include representatives of the authorities of each Party with expertise in the sectors or areas to be discussed.
6. The Sub-Committee shall report on its work to the JointCommittee.
Article 8.21. Annexes
The following Annexes form an integral part of this Chapter: Annex VI "Trade in Services" (TISA); Annex VII "Schedules of Specific Commitments"; and Annex VIII "Lists of MFN Exemptions".
Chapter 9. Investment Promotion
Article 9.1. Investment Promotion
The Parties recognise the importance of promoting crossborder investment and technology flows as a means for achieving economic growth and development. Cooperation in this respect may include:
(a) identifying investment opportunities;
(b) exchange of information on measures to promote investment abroad;
(c) exchange ofinformationoninvestmentregulations;
(d) assistance of investors to understand the investment regulations and the investment environment in both Parties; and
(e) the furthering of a legal environment conducive to increased investment flows.
Article 9.2. Review Clause
1. Upon request of a Party, the other Party shall provide information on measures affecting investment.
2. With the objective of progressive facilitation of investment conditions, the Parties affirm their commitment to review the investment legal framework, the investment environment and the flow of investment between them, no later than two years after the entry into force of this Agreement.
3. If, after the entry into force of this Agreement, a Party concludes an agreement with any third country or group of countries that contains provisions providing for a better treatment with respect to establishment in nonservices sectors than the treatment granted to the other Party, that Party shall, upon request by the other Party, enter into negotiation with a view to provide equivalent treatment on a mutual basis.
Chapter 10. Competition
Article 10. Competition
1. Anticompetitive practices, such as agreements between undertakings that may prevent or restrict competition, abuse of a dominant market position and concentrations of undertakings which may have the effect of prevention or restriction of competition may cause adverse effects on the bilateral trade, and thereby hinder the functioning of this Agreement. The Parties undertake to apply their respective competition laws in that regard.
2. This Chapter applies to all undertakings of the Parties. Such application shall not hinder undertakings with special and exclusive rights authorised by laws and regulations from exercising those rights.
3. Nothing in this Chapter creates any legally binding obligations for the undertakings or intervenes with the independence of the competition authorities in enforcing their respective competition laws.
4. Cooperation between the competition authorities of the Parties may have a significant effect on the enforcement of competition laws in matters affecting trade between the Parties. The competition authorities of the Parties shall cooperate with regard to anti-competitive practices.
5. If a Party considers that a given practice continues to affect trade in the sense of paragraph 1, it may request consultations in the Joint Committee with a view to facilitating a resolution of the matter.
6. Chapter 15 shall not apply to this Chapter.
Chapter 11. Protection of Intellectual Property Rights
Section I. General Provisions
Article 11.1. Intellectual Property Rights
1. The Parties shall grant and ensure adequate, effective, transparent and non-discriminatory protection of intellectual property rights, and provide for measures for the enforcement of such rights against infringement thereof, counterfeiting and piracy, in accordance with the provisions of this Chapter and the international agreements acceded to by both Parties.
2. The Parties shall accord to each others' nationals treatment no less favourable than that accorded to their own nationals with regard to the protection of intellectual property. Exemptions from this obligation must be in accordance with the substantive provisions of Articles 3 and 5 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as the "TRIPS Agreement").
3. The Parties shall grant to each others' nationals treatment no less favourable than that accorded to nationals of any other State with regard to protection of intellectual property. Exemptions from this obligation must be in accordance with the substantive provisions of the TRIPS Agreement, in particular Articles 4 and 5 thereof.
4. The Parties recognise the importance of protection and enforcement of intellectual property rights in order to incentivise research, development and creative activity which will promote economic and social development, as well as the dissemination of knowledge and technology. The Parties recognise that the protection and enforcement of intellectual property rights should strike a balance between the legitimate interest of the right owners and the public at large.
5. The Parties may take appropriate measures provided that they are consistent with the provisions of this Agreement and their international obligations to prevent the abuse of intellectual property rights by right holders or the resort to practices that unreasonably restrain trade or adversely affect technology transfer.
6. The Parties agree, upon request of any Party and subject to their agreement in the Joint Committee, to review the provisions on the protection of intellectual property rights contained in this Chapter, with a view to keep provisions up to date with international intellectual property developments in a balanced manner and to ensure their good functioning under this Agreement in practice.
Article 11.2. Definition of Intellectual Property
For the purposes of this Agreement, "intellectual property" comprises in particular copyright, as well as related rights, trademarks for goods and services, geographical indications (18), industrial designs, patents, plant varieties, layoutdesigns (topographies) of integrated circuits, as wellas undisclosed information. (19)
Article 11.3. International Conventions
1. The Parties reaffirm their commitments established in existing international agreements in the field of intellectual property rights, to which both are Parties, including the following:
(a) the TRIPS Agreement;
(b) the Paris Convention of 20 March 1883 for the Protection of Industrial Property, as revised by the Stockholm Act of 1967 (hereinafter referred to as "the Paris Convention");
(c) the Berne Convention of 9 September 1886 for the Protection of Literary and Artistic Works, as revised by the Paris Act of 1971 (hereinafter referred to as the "Berne Convention");
(d) the Patent Cooperation Treaty of 19 June 1970, as revised by the Washington Act of 2001;
(e) the Budapest Treaty of 28 April 1977 on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure;
(f) the Nice Agreement of 15 June 1957 Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks as revised by the Geneva Act of 1979;
(g) the Protocol of 27 June 1989 relating to the Madrid Agreement concerning the InternationalRegistrationofMarks;
(h) the WIPO Performances and Phonogram Treaty of 20 December 1996 (hereinafter referred to as the "WPPT");
(i) the WIPO Copyright Treaty of 20 December 1996; and
(j) the International Convention for the Protection of New Varieties of Plants 1978 (hereinafter referred to as the "1978 UPOV Convention").
2. Each Party shall make all reasonable efforts to ratify or accede to the Beijing Treaty on Audiovisual Performances.
Article 11.4. Notification and Exchange of Information
Under the established structure of the bilateral dialogue on intellectual property rights and the annual Intellectual Property Working Group meeting between China and Switzerland, each Party shall, upon request of the other Party, and in addition to the already existing forms of cooperation:
(a) exchange information relating to intellectual property policies in their respective administrations;
(b) inform the other Party of changes to, and developments in the implementation of their national intellectualpropertysystems;
(c) exchange information relating to the conventions referred to in this Chapter or to future international conventions on harmonisation, administration and enforcement of intellectual property rights and on activities in international organisations, such as the WTO and WIPO, as well as on relations of the Parties with third countries on matters concerning intellectualproperty; and
(d) consider intellectual property right issues and questions of interest to private stakeholders.
Article 11.5. Intellectual Property and Public Health
1. The Parties recognise the principles established in the Doha Declaration on the TRIPS Agreement and Public Health adopted on14 November 2001 by the MinisterialConference of the WTO and confirm that the provisions of this Chapter are without prejudice to this Declaration.
2. The Parties reaffirm their commitment to contribute to the international efforts to the implementation of the Decision of the WTO General Council of 30 August 2003 on the Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, as well as the Protocol Amending the TRIPS Agreement, done at Geneva on 6 December 2005.
Section II. Standards Concerning the Availability, Scope and Use of Intellectual Property Rights
Article 11.6. Copyright and Related Rights
1. Without prejudice to the obligations set out in the international agreements to which both Parties are parties, each Party shall, in accordance with its laws and regulations, grant and ensure adequate and effective protection to the authors of works and to performers, producers of phonograms and videograms and broadcasting organisations for their works, performances, phonograms, videograms and broadcasts, respectively. It is understood that computer programmes fall under copyright protection.
2. In addition to the protection provided for in the international agreements to which the Parties are parties, each Party shall:
(a) grant and ensure protection as provided for in Articles 5, 6, 7, 8 and 10 of the WPPT, mutatis mutandis, to performers for their audiovisual performances; and
(b) grant and ensure protection as provided for in Articles 11, 12, 13 and 14 of the WPPT, mutatis mutandis, to producers of videograms.
3. A radio station or television station shall have the right to prohibit the following acts performed without its permission:
(a) rebroadcasting its programmes; and
(b) making a sound recording or video recording of its programmes and reproducing such recording.
4. Each Party may, in its national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of performers for their audiovisual performances to the protection of videograms producers, and to broadcasting organisations as it provides for in its national legislation, in connection with the protection of copyright in literary and artistic work.
5. Each Party shall ensure that the author has the right, independently of the author's economic rights, and even after the transfer of the said rights, to claim authorship of the work and to object to any modification, distortion, mutilation or other derogatory action in relation to the said work, which would be prejudicial to his or her honour or reputation.
6. The rights granted to the author in accordance with paragraph 5 shall, after his or her death, be maintained at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorised by the legislation of the Party in which protection is claimed.
7. The rights granted under paragraphs 5 and 6 shall be granted, mutatis mutandis, to performers as regards their live aural, visual or audiovisual performances, or performances fixed in phonograms or audiovisual fixations.
8. The term of protection to be granted to performers under this Agreement shall last, at least, until the end of a period of 50 years computed from the end of the year in which the performance took place.
9. The term of protection to be granted to producers of videograms under this Agreement shall last, at least, until the end of a period of 50 years computed from the end of the year in which the videogram was published, or failing such publication within 50 years from fixation of the videogram, 50 years from the end of the year in which the fixation was made.
10. The term of protection to be granted to broadcasting organisations under this Agreement shall last, at least, until the end of a period of 50 years computed from the end of the year in which the broadcast took place.
11. A Party may be exempted from its obligations under paragraphs 8, 9 and 10 where the exemptions as provided for in Articles 7 and 7bis of the Berne Convention may apply.
Article 11.7. Trademarks
1. The Parties shall grant adequate and effective protection to trademark right holders of goods and services. Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including combinations of words, personal names, letters, numerals, figurative elements, shapes of goods, sounds and combinations of colours, as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, the Parties may make registerability depend on distinctiveness acquired through use. Parties may require, as a condition of registration, that signs be visually perceptible.
2. The Parties reaffirm the importance of the principles contained in the WIPO Joint RecommendationConcerning Provisions on the Protection of WellKnownMarks, adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of the WIPO in1999, and the WIPO Joint RecommendationConcerning Provisions on the Protection of Marks and other Industrial Property Rights in Signs on the Internet, adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of the WIPO in2001.
3. The Parties shall grant the owner of a registered trademark the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. The rights described above shall not prejudice any existing prior rights, nor shall they affect the possibility of the Parties making rights available on the basis of use.
4. The protection according to paragraph 3 shall not be limited to identical or similar goods or services where the registered trademark is well known in the respective Party and provided that use of a trademark which is a reproduction, an imitation or a translation, of the well-known trademark above in relation to those goods or services would indicate a connection between those goods or services and the owner of the registered trademark and provided that the interests of the owner of the registered trademark are likely to be damaged by such use.
Article 11.8. Patents
1. The Parties shall, in their national laws, at least ensure adequate and effective patent protection for inventions in all fields of technology, including in the field of biotechnology and herbal medicine, provided that they are new, involve an inventive step and are capable of industrial application.
2. For the Parties, this means protection on a level corresponding to the one in paragraph 1 of Article 27 of the TRIPS Agreement. In addition to what is provided for in paragraph 2 of Article 27 of the TRIPS Agreement, the Parties may exclude from patentability:
(a) methods for treatment of the human or animal body by surgery or therapy or for diagnostic methods practised on the human or animal body; this provision shall not apply to products, in particular substances or compositions, for use in any of these methods; and
(b) plant or animal varieties or essentially biological processes for the production of plants or animals; this provision shall not apply to microbiological processes or the products thereof.
Article 11.9. Genetic Resources and Traditional Knowledge
1. The Parties recognise the contribution made by genetic resources and traditional knowledge to scientific, cultural and economic development.
2. The Parties acknowledge and reaffirm the principles established in the Convention on Biological Diversity adopted on 5 June 1992 and encourage the effort to enhance a mutually supportive relationship between the TRIPS Agreement and the Convention on Biological Diversity, regarding genetic resources and traditional knowledge.
3. Subject to each Party's international rights and obligations and domestic laws, the Parties may adopt or maintain measures to promote the conservation of biological diversity and the equitable sharing of benefits arising from the use of genetic resources and traditional knowledge.
4. The Parties may require that patent applicants should indicate the source of a genetic resource and, if so provided by the national law, traditional knowledge, to which the inventor or the patent applicant has had access, insofar as the invention is directly based on this resource or this knowledge in accordance with domestic laws and regulations;
5. If a patent application does not meet the requirements of paragraph 4, the Parties may set a time limit by which the applicant must correct the defect. The Parties may refuse the application or consider it withdrawn if the defect according to this paragraph has not been corrected within the set time limit.
6. If it is discovered after the granting of a patent that the application failed to disclose the source or that intentionally false information was submitted, or other relevant laws and regulations were violated, the Parties may provide for appropriate legal consequences.