Article 17.37. Provisional Measures
1. Each Party's authorities shall act on requests for relief inaudita altera parte expeditiously in accordance with the Party's judicial rules.
2. With respect to provisional measures, each Party shall provide that its judicial authorities shall have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant is the right holder (17-20) and that the applicant's right is being infringed or that such infringement is imminent, and to order the applicant to provide a reasonable security or equivalent assurance set at a level sufficient to protect the respondent and to prevent abuse, and so as not to unreasonably deter recourse to such procedures.
Article 17.38. Criminal Procedures and Remedies
Each Party shall provide for criminal procedures and penalties to be applied at least in cases where a person wilfully engages in trade mark counterfeiting or piracy of works, performances or phonograms on a commercial scale (17-21) including wilful infringement of copyright and related rights for a commercial advantage or financial gain. (17-22) Specifically, each Party shall provide:
(a) penalties that include imprisonment and/or monetary fines that are sufficient to provide a deterrent to infringement consistent with the level of penalties applied for crimes of a corresponding gravity;
(b) that its judicial authorities shall have the authority to order the seizure of suspected counterfeit or pirated goods, related materials and implements that have been used in the commission of the offence, assets legally traceable to the infringing activity and documentary evidence relevant to the offence (17-23), Each Party shall further provide that its judicial authorities have the authority to order the seizure of items in accordance with its domestic law;
(c) that its judicial authorities shall have the authority, among other measures, to order the forfeiture of any assets legally traceable to the infringing activity for at least indictable offences, and the forfeiture and destruction of all goods found to be counterfeit or pirated, and, at least with respect to wilful copyright and related rights piracy, to order the forfeiture and destruction of materials and implements that have been used in the making of the infringing goods. Each Party shall further provide that such forfeiture and destruction shall occur without compensation to the defendant; and
(d) that the appropriate authorities, as determined by each Party, shall have the authority to initiate criminal legal action ex officio in cases of copyright and related rights piracy and trade mark counterfeiting without the need for a formal complaint by a person or right holder.
Article 17.39. Border Measures
1. Each Party shall provide, in any right holder initiated procedures for suspension by its Customs Administration of the release into free circulation of suspected counterfeit trade mark goods or pirated copyright goods (17-24) imported into the Party's territory, that the right holder provide to the satisfaction of the competent authorities:
(a) adequate evidence that there is prima facie infringement of the right holders' intellectual property rights under the laws of the territory of importation and a sufficiently detailed description of the goods to make them reasonably recognisable by the Party's Customs Administration; and
(b) if requested, a reasonable security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse.
The requirements for a sufficiently detailed description and a security or equivalent assurance shall not unreasonably deter recourse to these procedures.
2. Where its competent authorities have made a determination that goods are counterfeit or pirated, a Party shall provide that its competent authorities have the authority to inform the right holder of the names and addresses of the consignor, the importer and the consignee, and of the quantity of the goods in question.
3. Each Party shall provide that its Customs Administration may initiate border measures ex officio with respect to imported or exported goods suspected of being counterfeit trade mark or pirated copyright goods, without the need for a specific formal complaint.
4. Each Party shall provide that goods that have been suspended from release by its Customs Administration, and that have been forfeited as pirated or counterfeit, shall be destroyed, except in exceptional cases. In regard to counterfeit trade mark goods, the simple removal of the trade mark unlawfully affixed shall not be sufficient to permit the release of the goods into the channels of commerce. The competent authorities, except in exceptional circumstances, shall not be authorised to permit the exportation of counterfeit or pirated goods that have been seized, nor shall they be authorised to permit such goods to be subject to movement under customs control.
Article 17.40. Service Provider Liability
1. Each Party shall provide for a legislative scheme to limit remedies that may be available against service providers (17-25) for infringement of copyright or related rights (17-26) that they do not control, initiate or direct and that take place through their systems or networks.
2. The scheme in paragraph 1 will only apply if a service provider meets conditions, including:
(a) removing or disabling access to infringing material upon notification from the rights owner through a procedure established by each Party; and
(b) no financial benefit is received by the service provider for the infringing activity in circumstances where it has the right and ability to control such activity.
COOPERATION
Article 17.41. Cooperation
Consistent with Article 17.2 the Parties agree to cooperate through:
(a) the notification of relevant contact points on the request of a Party; and the exchange of publicly available information concerning policy developments in intellectual property of a Party on the request of the other Party and to the extent that the requested Party is able to provide such information.
Chapter 18. Cooperation
Article 18.1. General Objectives
1. The Parties agree to establish a framework for cooperative activities as a means to expand and enhance the benefits of this Agreement and to build a strategic economic partnership.
2. The Parties will establish close cooperation aimed inter alia at: (a) strengthening and building on existing cooperative relationships;
(b) creating new opportunities for trade and investment, and for promoting competitiveness, fostering innovation and encouraging research and development;
(c) supporting the role of the private sector in promoting and building strategic alliances to encourage mutual economic growth and development; and
(d) increasing the level of and further developing cooperation activities between the Parties in areas of mutual interest.
Article 18.2. Scope
1. Cooperation between the Parties should contribute to achieving the objectives of this Agreement through the identification and development of innovative cooperation initiatives capable of providing added value to the bilateral relationship.
2. Cooperation between the Parties under this Chapter will complement the cooperation between the Parties set out in other Chapters of this Agreement.
3. Areas of cooperation may include but should not be limited to: science, agriculture including the wine industry, food production and processing, mining, energy, environment, small and medium enterprises, tourism, education, labour, human capital development and cultural collaboration.
4. Cooperation on labour and employment matters of mutual interest and benefit will be based on the concept of decent work, including the principles embodied in the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up (1998).
5. Cooperation on environment will reflect the commitment of both Parties to strengthening environmental protection and the promotion of sustainable development, in the context of strengthening trade and investment relations between them.
6. Cooperative activities will be agreed between the Parties and may include, but should not be limited to: exchanges of people and information; cooperation in regional and multilateral fora; dialogues, conferences and seminars; facilitating contacts between scientists and academia; the development of joint research programs; and the encouragement of private sector cooperation.
7. Areas of cooperation may be developed through existing agreements and through appropriate implementing arrangements including the designation of national contact points to facilitate activities on environment and labour cooperation.
Article 18.3. Innovation, Research and Development
Cooperation in innovation, research and development will be focused on cooperative activities in sectors where mutual and complementary interests exist. Among other activities, the Parties will encourage the exchange of experts and information. Where appropriate, they will also promote partnerships in the support of the development of innovative products and services and activities to promote linkage, innovation and technology exchange.
Article 18.4. Cooperation Committee
1. For the purposes of this Chapter, the Parties hereby establish a Cooperation Committee ("the Committee") comprising representatives of each Party.
2. The Committee shall be coordinated and co-chaired by:
(a) in the case of Australia, the Department of Foreign Affairs and Trade, or its successor; and
(b) in the case of Chile, the Ministry of Foreign Affairs through the General Directorate for International Economic Affairs and the Chilean Agency for International Cooperation, or their successors.
3. In order to ensure the proper functioning of the Committee, each Party will designate a contact person no later than 6 months from the date of entry into force of this Agreement. Each Party will notify the other Party promptly of any change of contact person.
4. The Committee shall meet in or shortly after the first year of entry into force of this Agreement, and thereafter as agreed by the Parties.
5. The Committee shall:
(a) adopt the Committee's operating procedures;
(b) discuss cooperative activities which might be undertaken under this Chapter;
(c) review where appropriate the implementation of cooperative activities;
(d) maintain and update information on cooperation between the Parties, including implementing arrangements; and
(e) undertake such other functions to foster cooperation including establishing working groups under this Chapter as the Parties may agree.
6. The Committee may interact, where appropriate, with relevant entities to address specific matters.
7. The Committee shall report periodically to the Joint FTA Committee the results of its meetings.
Article 18.5. Resources
With the aim of contributing to the fulfilment of the objectives of this Chapter, the Parties shall provide, within the limits of their own capacities and through their own channels, adequate resources to support cooperative activities, as required.
Chapter 19. Transparency
Article 19.1. Definitions
For the purposes of this Chapter:
administrative ruling of general application means an administrative or quasi-judicial ruling or interpretation that applies to all persons and fact situations that fall generally within its ambit and that establishes a norm of conduct but does not include:
(a) a determination or ruling made in an administrative proceeding that applies to a particular person, good or service of the other Party in a specific case; or
(b) a ruling that adjudicates with respect to a particular act or practice.
Article 19.2. Contact Points
1. The contact point referred in Annex 19-A shall facilitate communications between the Parties on any matter covered by this Agreement.
2. On the request of the other Party, the contact point shall identify the office or official responsible for the matter and assist, as necessary, in facilitating communication with the requesting Party.
Article 19.3. Publication
1. Each Party shall ensure, wherever possible in electronic form, that its laws, regulations, procedures and administrative rulings of general application respecting any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other Party to become acquainted with them.
2. To the extent possible, each Party shall:
(a) publish in advance any such measure referred to in paragraph 1 that it proposes to adopt; and
(b) provide interested persons and the other Party a reasonable opportunity to comment on such proposed measures.
Article 19.4. Notification and Provision of Information
1. To the maximum extent possible, each Party shall notify the other Party of any proposed or actual measure that the Party considers might materially affect the operation of this Agreement or otherwise substantially affect the other Party's interests under this Agreement.
2. On request of the other Party, a Party shall promptly provide information and respond to questions pertaining to any actual or proposed measure that the requesting Party considers might materially affect the operation of this Agreement or otherwise substantially affect its interests under this Agreement, regardless of whether the requesting Party has been previously notified of that measure.
3. Any notification, request or information under this Article shall be provided to the other Party through the relevant contact points.
4. Any notification or information provided under this Article shall be without prejudice as to whether the measure is consistent with this Agreement.
Article 19.5. Administrative Proceedings
With a view to administering in a consistent, impartial and reasonable manner its measures referred to in Article 19.3, each Party shall ensure that in its administrative proceedings in which these measures are applied to particular persons, goods or services of the other Party in specific cases that it:
(a) provides wherever possible, persons of the other Party that are directly affected by a proceeding reasonable notice, in accordance with its domestic procedures, when a proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated, and a general description of any issues in controversy;
(b) affords such persons a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when time, the nature of the proceeding and the public interest permit; and
(c) follows its procedures in accordance with domestic law.
Article 19.6. Review and Appeal (19-1)
1. Each Party shall establish or maintain judicial, quasi-judicial or administrative tribunals or procedures for the purpose of the prompt review and, where warranted, correction of final administrative actions regarding matters covered by this Agreement. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.
2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceeding are provided with the right to:
(a) a reasonable opportunity to support or defend their respective positions; and
(b) a decision based on the evidence and submissions of record or, where required by domestic law, the record compiled by the administrative authority.
3. Each Party shall ensure, subject to appeal or further review as provided in its domestic law, that such decisions shall be implemented by, and shall govern the practice of, the office or authority with respect to the administrative action that is the subject of the decision.
Annex 19-A. Contact points
For purposes of Article 19.2.1, the Contact Points shall be:
(a) in the case of Australia, the Department of Foreign Affairs and Trade, or its successor; and
(b) in the case of Chile, the Asia Pacific Department of the General Directorate of International Economic Affairs, Ministry of Foreign Affairs, or its successor.
Chapter 20. Institutional Arrangements
Article 20.1. Joint Fta Committee
1. The Parties hereby establish a Joint FTA Committee.
2. The Joint FTA Committee shall be composed of relevant government officials of each Party and shall be co-chaired by (i) a Deputy Secretary of the Department of Foreign Affairs and Trade for Australia and (ii) the Director-General of International Economic Relations of the Ministry of Foreign Affairs for Chile, or their respective designees.
3. The Joint FTA Committee shall:
(a) review the general functioning of this Agreement;
(b) review, consider and, as appropriate, decide on specific matters related to the operation, application and implementation of this Agreement, including matters reported by committees or working groups established under this Agreement;
(c) supervise the work of committees, working groups and contact points established under this Agreement;
(d) facilitate, as appropriate, the avoidance and settlement of disputes arising under this Agreement, including through consultations pursuant to Article 21.4 (Referral of Matters to the Joint FTA Committee — Dispute Settlement Chapter);
(e) consider and adopt any amendment to this Agreement or other modification or rectification to the commitments therein, subject to completion of necessary domestic legal procedures by each Party (20-1);
(f) as appropriate, issue interpretations of the Agreement;
(g) review the wider trade relationship;
(h) explore ways to enhance further trade and investment between the Parties and to further the objectives of this Agreement; and
(i) take such other action as the Parties may agree.
4. The Joint FTA Committee may seek the advice of non-governmental persons or groups on matters covered by this Agreement.
Article 20.2. Meetings of the Joint Fta Committee
1. The Joint FTA Committee shall meet:
(a) in or shortly after the first year of entry into force of this Agreement; and
(b) thereafter as agreed by the Parties.
2. The Joint FTA Committee shall meet alternately in the territory of each Party, unless the Parties otherwise agree.
3. The Joint FTA Committee shall also meet in special session within 30 days of the request of a Party, with such sessions to be held in the territory of the other Party or at such location as may be agreed by the Parties.
4. All decisions of the Joint FTA Committee shall be taken by mutual agreement.
5. The Joint FTA Committee may adopt its own rules of procedure.
Chapter 21. Dispute Settlement
Article 21.1. Scope and Coverage
1. 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, application or operation of this Agreement, which includes wherever a Party considers that:
(a) a measure of the other Party is inconsistent with its obligations under this Agreement;
(b) the other Party has otherwise failed to carry out its obligations under this Agreement; or
(c) a benefit the Party could reasonably have expected to accrue to it under Chapters 3 (National Treatment and Market Access for Goods), 4 (Rules of Origin), 5 (Customs Administration), 7 (Technical Regulations, Standards and Conformity Assessment Procedures), 9 (Cross-Border Trade in Services), 15 (Government Procurement) or 17 (intellectual Property) is being nullified or impaired as a result of a measure that is not inconsistent with this Agreement.
2. In cases where there is an infringement of the obligations under this Agreement, the action is considered prima facie to constitute a case of nullification or impairment.
Article 21.2. Choice of Dispute Settlement Procedure
1. Where a dispute regarding any matter arises under this Agreement and under another free trade agreement to which both Parties are party or the WTO Agreement, the complaining Party may select the dispute settlement procedure in which to settle the dispute.
2. Once the complaining Party has requested a panel under an agreement referred to in paragraph 1, the forum selected shall be used to the exclusion of the others.
Article 21.3. Consultations
1. Either Party may request in writing consultations with the other Party concerning any matter on the implementation, interpretation, application 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 deliver the request to the other Party, setting out the reasons for the request, including identification of the measure at issue and an indication of the legal basis for the complaint, and providing sufficient information to enable an 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. In consultations under this Article, a Party may request the other Party to make available personnel of its government agencies or other regulatory bodies who have expertise in the matter subject to consultations.
5. The consultations under this Article shall be confidential and without prejudice to the rights of either Party in any further proceedings.
Article 21.4. Referral of Matters to the Joint Fta Committee
1. If the consultations fail to resolve the matter within 40 days of the delivery of a Party's request for consultations under Article 21.3.2, or 20 days in cases of urgency including those which concern perishable goods, the complaining Party may refer the matter to the Joint FTA Committee by delivering written notification to the other Party. The Joint FTA Committee shall endeavour to resolve the matter.
2. The Joint FTA Committee may:
(a) call on such technical advisers or create such working groups or expert groups as it deems necessary;
(b) have recourse to good offices, conciliation, mediation or such other dispute resolution procedures; or
(c) make recommendations; as may assist the Parties to reach a mutually satisfactory resolution of the dispute. Article 21.5: Establishment of Arbitral Panels 1. The complaining Party that requested consultations under Article 21.3 may request in writing the establishment of an arbitral panel, if the Parties fail to resolve the matter within: