Corporations and Markets Advisory Committee
Export Finance and Insurance Corporation
Grains Research and Development Corporation
Great Barrier Reef Marine Park Authority
Medicare Australia
Land and Water Resources Research and Development Corporation
National Gallery of Australia
National Museum of Australia
Reserve Bank of Australia
Sydney Harbour Federation Trust
The Director of National Parks
Notes to the Schedule of Australia
1. For the entities listed in this schedule, this Chapter does not cover the procurement of motor vehicles.
2. This Chapter does not cover procurement of telecommunications services by the Australian War Memorial.
Schedule of chile
1. Empresa Portuaria Arica
2. Empresa Portuaria Iquique
3. Empresa Portuaria Antofagasta
4, Empresa Portuaria Coquimbo
5. Empresa Portuaria Valparaiso
6. Empresa Portuaria San Antonio
7. Empresa Portuaria San Vicente Talcahuano
8. Empresa Portuaria Puerto Montt
9. Empresa Portuaria Chacabuco
10. Empresa Portuaria Austral
11. Aeropuertos de propiedad del Estado, dependientes de la Dirección General de Aeronáutica Civil
Section 4. Goods
This Chapter applies to all goods procured by the entities listed in Sections 1 to 3, unless otherwise specified in this Chapter, including this Annex.
Section 5. Services
This Chapter applies to all services procured by the entities listed in Sections 1 to 3, unless otherwise specified in this Chapter, including this Annex.
Schedule of australia
This Chapter does not cover the procurement of research and development services, plasma fractionation services or government advertising services.
Section 6. Construction Services
This Chapter applies to all construction services procured by the entities listed in Sections 1 to 3, unless otherwise specified in this Chapter, including this Annex.
Schedule of australia
For the purposes of Articles 15.13.1 and 15.13.2, Australia requires, as a condition for participation in procurement of building and construction services, compliance with the National Code of Practice for the Construction Industry and related implementation guidelines at the central and sub-central government levels, and their successor policies and guidelines. In this respect Australia shall accord to the goods, services and suppliers of Chile, treatment no less favourable than the most favourable treatment it accords to its own goods, services and suppliers.
Schedule of chile
This Chapter shall not apply to construction services intended for Easter Island (Isla de Pascua).
Note to Section 6
Buy national requirements on articles, supplies or materials acquired for use in construction services contracts covered by this Chapter shall not apply to goods of either Party.
Section 7. General Notes
Unless otherwise specified herein, the following General Notes in each Party's Schedule apply without exception to this Chapter, including to all sections of this Annex.
Schedule of australia
This Chapter does not apply to:
(a) any form of preference to benefit small and medium enterprises;
(b) measures to protect national treasures of artistic, historic, or archaeological value;
(c) measures for the health and welfare of indigenous people; and
(d) measures for the economic and social advancement of indigenous people.
Section 8. Threshold Adjustment Formula
1. The thresholds in Sections 1 to 3 shall be adjusted at two-year intervals with each adjustment taking effect on January 1, beginning January 1, 2010.
2. The thresholds shall be adjusted:
(a) for Australia to align with the adjusted thresholds for equivalent categories of procurement listed in Annex 15-A, Section 1 to 3 of the Australia-United States Free Trade Agreement, expressed in its national currency according to that Agreement; and
(b) for Chile to align with the adjusted thresholds for equivalent categories of procurement listed in Annex 9.1, Section A to C of the Chile-United States Free Trade Agreement, expressed in its national currency according to that Agreement.
3. A Party may round its calculations for adjusted thresholds covered by this section according to the following:
(a) for Australia, to the nearest thousand Australian Dollars; and
(b) for Chile, to the nearest hundred thousand Chilean Pesos.
4. The Parties shall consult if a major change in a national currency vis-à-vis Special Drawing Rights or the other currency during a year were to create a significant problem with regard to the application of the Chapter.
5. In the event that:
(a) Australia withdraws from the Australia-United States Free Trade Agreement pursuant to Article 23.4 of that Agreement; or
(b) Chile withdraws from the Chile-United States Free Trade Agreement pursuant to Article 24.4 of that Agreement; or
(c) The Australia-United States Free Trade Agreement or the Chile-United States Free Trade Agreement are terminated; or
(d) An alteration to the arrangements for determining or adjusting the thresholds referred to in paragraph 2 in either the Australia-United States Free Trade Agreement or the Chile-United States Free Trade Agreement impacts on the operation of this Chapter;
The Joint FTA Committee shall agree revised arrangements for determining or adjusting thresholds with a view to maintaining the balance between the Parties in respect of the thresholds applying to one or more categories of procurement as set out in Sections 1 to 3.
6. Each Party shall notify the other Party of the value of the newly calculated thresholds in its national currency no later than one month before the thresholds take effect.
Chapter 16. Electronic Commerce
Article 16.1. Definitions (16-1)
For the purposes of this Chapter:
(a) digital certificates are electronic documents or files that are issued or otherwise linked to a party to an electronic communication, transaction or contract for the purpose of establishing the party's identity, authority or other attributes;
(b) electronic authentication means the process of establishing levels of confidence in the identity of a party to an electronic communication or transaction;
(c) electronic version of a document means a document in electronic format prescribed by a Party, including a document sent by facsimile transmission;
(d) personal data means information about an individual whose identity is apparent, or can reasonably be ascertained, from the information;
(e) trade administration documents means forms issued or controlled by a Party which must be completed by or for an importer or exporter in relation to the import or export of goods;
(f) party means a person who takes part in a transaction or contract; and
(g) electronic transmission means the transfer of digital products using any electromagnetic or photonic means.
Article 16.2. General Provisions
1. The Parties recognise the economic growth and opportunities provided by electronic commerce, and the importance of avoiding unnecessary barriers to its use and development consistent with this Agreement.
2. The aim of this Chapter is to promote electronic commerce between the Parties and the wider use of electronic commerce globally.
3. The Parties agree that, to the maximum extent possible, bilateral trade in electronic commerce shall be no more restricted than comparable non-electronic bilateral trade.
Article 16.3. Electronic Supply of Services
Nothing in this Chapter imposes obligations to allow the electronic supply of a service nor the electronic transmission of content associated with those services, except in accordance with the provisions of Chapter 9 (Cross-Border Trade in Services), Chapter 10 (Investment) or Chapter 12 (Financial Services), including the Annexes (Non-Conforming Measures).
Article 16.4. Customs Duties
Each Party shall not impose customs duties on electronic transmissions between the Parties.
Article 16.5. Domestic Electronic Transactions Frameworks
1. Each Party shall adopt or maintain measures regulating electronic transactions based on the following principles:
(a) a transaction including a contract shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the form of an electronic communication; and
(b) laws should not discriminate arbitrarily between different forms of technology.
2. Nothing in paragraph 1 prevents the Parties from making exceptions in their domestic laws to the general principles outlined in that paragraph.
3. Each Party shall:
(a) minimise the regulatory burden on electronic commerce; and
(b) ensure that its measures regulating electronic commerce support industry-led development of electronic commerce.
Article 16.6. Electronic Authentication
1. The Parties recognise that electronic authentication represents an element that facilitates trade.
2. The Parties shall work towards the mutual recognition of digital certificates and electronic signatures at governmental level, based on internationally accepted standards.
3. Each Party shall adopt or maintain measures regulating electronic authentication that:
(a) permit parties who take part in a transaction or contract by electronic means to determine the appropriate authentication technologies and implementation models, and do not limit the recognition of such technologies and implementation models, unless there is a domestic or international legal requirement to the contrary; and
(b) permit parties who take part in a transaction or contract by electronic means to have the opportunity to prove in court that their electronic transactions comply with any legal requirement.
4. The Parties shall encourage the use of interoperable electronic authentication.
Article 16.7. Online Consumer Protection
1. Each Party shall, to the extent possible and in a manner considered appropriate, adopt or maintain measures which provide protection for consumers using electronic commerce that is at least equivalent to measures which provide protection for consumers of other forms of commerce.
2. Each Party shall adopt or maintain measures regulating consumer protection where:
(a) consumers who participate in electronic commerce should be afforded transparent and effective consumer protection that is not less than the level of protection afforded in other forms of commerce; and
(b) businesses engaged in electronic commerce should pay due regard to the interests of consumers and act in accordance with fair business, advertising and marketing practices.
3. Each Party shall encourage business to adopt the following fair business practices where business engages in electronic commerce with consumers:
(a) businesses should provide accurate, clear and easily accessible information about themselves, the goods or services offered, and about the terms, conditions and costs associated with a transaction to enable consumers to make an informed decision about whether to enter into the transaction;
(b) to avoid ambiguity concerning the consumer's intent to make a purchase, the consumer should be able, before concluding the purchase, to identify precisely the goods or services he or she wishes to purchase; identify and correct any errors or modify the order; express an informed and deliberate consent to the purchase; and retain a complete and accurate record of the transaction;
(c) consumers should be provided with easy-to-use, secure payment mechanisms and information on the level of security such mechanisms afford.
Article 16.8. Online Personal Data Protection
Each Party shall adopt or maintain a domestic legal framework which ensures the protection of the personal data of the users of electronic commerce. In the development of personal data protection standards, each Party shall take into account the international standards and criteria of relevant international bodies.
Article 16.9. Paperless Trading
1. Each Party shall endeavor to accept electronic versions of trade administration documents used by the other Party as the legal equivalent of paper documents, except where:
(a) there is a domestic or international legal requirement to the contrary; or
(b) doing so would reduce the effectiveness of the trade administration process.
2. For greater certainty, the Parties confirm that Article 5.11 (Paperless Trading — Customs Administration Chapter) applies to paperless trading under this Chapter.
3. Each Party shall work towards developing a single window (16-2) to government incorporating relevant international standards for the conduct of trade administration, recognising that each Party will have its own unique requirements and conditions.
Article 16.10. Consultations
1. The Parties will consult on electronic commerce matters arising under this Chapter including in relation to electronic signatures, data protection, online consumer protection and any other matters agreed by the Parties.
2. The consultations may be held via teleconference, videoconference, or through other means, as mutually determined by the Parties.
Chapter 17. Intellectual Property
Article 17.1. Definitions
For the purposes of this Chapter:
(a) broadcasting means the transmission to the public by wireless means, including satellite, of sounds or sounds and images, or representations thereof, including wireless transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organisation or with its consent;
(b) communication to the public of a performance or a phonogram has the meaning in Article 2(g) of the WIPO Performances and Phonograms Treaty;
(c) fixation in relation to performances and phonograms means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device;
(d) intellectual property refers to all categories of intellectual property that are the subject of Sections 1 to 7 of Part II of the TRIPS Agreement, namely: copyright and related rights; trade marks; geographical indications; industrial designs; patents; layout designs (topographies) of integrated circuits; and protection of undisclosed information (17-1);
(e) performance refers to a performance fixed in a phonogram unless otherwise specified;
(f) performers means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works or expressions of folklore;
(g) phonogram means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work;
(h) producer of a phonogram means the person who, or the legal entity which, takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds;
(i) publication of a performance or a phonogram means the offering of copies of the performance or the phonogram to the public, with the consent of the right holder, and provided that copies are offered to the public in reasonable quantity;
(j) WIPO means the World Intellectual Property Organization; and
(k) work includes a cinematographic work.
Article 17.2. Purpose
The Parties recognise that it is important to provide adequate and effective protection and enforcement of intellectual property rights, promote efficient and transparent intellectual property systems and achieve an appropriate balance between the legitimate interests of intellectual property right holders and of users in subject matter protected by intellectual property rights.
Article 17.3. General Provisions
1. The Parties reaffirm their existing rights and obligations with respect to each other under the TRIPS Agreement and any other multilateral intellectual property agreements to which both are party.
2. Nothing in this Chapter shall prevent a Party from adopting appropriate measures to prevent:
(a) the abuse of intellectual property rights by right holders or the resort to practices that unreasonably restrain trade or adversely affect the international transfer of technology; and
(b) anticompetitive practices that may result from the abuse of intellectual property rights;
provided that such measures are consistent with this Agreement. 3. Each Party shall give effect to the provisions of this Chapter and may, but shall not be obliged to, implement in its domestic law more extensive protection than is required by this Chapter, provided that such protection does not contravene the provisions of this Chapter.
Article 17.4. International Agreements
1. Each Party shall ratify or accede to the following agreements by 1 January 2009 in a manner consistent with its domestic law and subject to the fulfilment of its necessary internal requirements:
(a) the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974) (the Brussels Convention);
(b) the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1980); and
(c) the International Convention for the Protection of New Varieties of Plants (1991).
2. Each Party shall undertake reasonable efforts to ratify or accede to the following agreements, in a manner consistent with its domestic law and subject to the fulfilment of its necessary internal requirements:
(a) the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989),
(b) the Patent Cooperation Treaty (1970); and