2. In cases where the release of such information would prejudice competition in future tenders, the Party that receives the information shall not disclose it to any supplier without the explicit consent of, the Party that provided the information.
3. Notwithstanding any other provision of this Chapter, no Party, including its procuring entities, shall provide information to a particular supplier that might prejudice fair competition between suppliers.
4. Nothing in this Chapter shall be construed to require a Party, including its procuring entities, authorities and review bodies, to disclose confidential information where disclosure:
(a) would impede law enforcement;
(b) might prejudice fair competition between suppliers;
(c) would prejudice the legitimate commercial interests of particular persons, including the protection of intellectual property; or
(d) would otherwise be contrary to the public interest.
Article 95. Domestic Review Procedures for Supplier Challenges
1. Each Party shall provide a timely, effective, transparent and non-discriminatory administrative or judicial review procedure, in accordance with the principle of due process, through which a supplier may challenge:
(a) a breach of this Chapter; or
(b) where a supplier does not have the right to challenge directly a breach of this Chapter under the Party’s domestic laws and regulation a failure to comply with a Party’s measures implementing this Chapter, arising in the context of a covered procurement, in which the supplier has, or has had, an interest.
2. The procedural rules for all challenges shall be in writing and made generally available.
3. In the event of a complaint by a supplier, arising in the context of covered procurement in which the supplier has, or has had, an interest, that there has been a breach or a failure as referred to in paragraph 1, the Party of the procuring entity shall encourage, if appropriate, the entity and the supplier to seek resolution of the complaint through consultations.
4. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, which in no case shall be less than ten days from the time when the basis of the challenge became known or reasonably should have become known to the supplier.
5. Each Party shall establish or designate at least one impartial administrative or judicial authority that is independent of its procuring entities to receive and review a challenge by a supplier arising in the context of a covered procurement.
6. Where a body other than an authority referred to in paragraph 5 initially reviews a challenge, each Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority that is independent of the procuring entity whose procurement is the subject of the challenge.
7. Each Party shall ensure that a review body that is not a court shall either have its decisions subject to judicial review or have procedures that provide that:
(a) the procuring entity shall respond in writing to the challenge and disclose all relevant documents to the review body;
(b) the participants to the proceedings (“participants”) shall have the right to be heard prior to a decision of the review body being made on the challenge;
(c) the participants shall have the right to be represented and accompanied;
(d) the participants shall have access to all proceedings;
(e) the participants shall have the right to request that the proceedings take place in public and that witnesses may be presented; and
(f) the review body shall make its decisions or recommendations in a timely fashion, in writing, and shall include an explanation of the basis for each decision or recommendation.
8. Each Party shall adopt or maintain procedures that provide for:
(a) rapid interim measures to preserve the supplier’s opportunity to participate in the procurement. Such interim measures may result in the suspension of the procurement process. The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether such measures should be applied. Just cause for not acting shall be provided in writing; and
(b) where a review body has determined that there has been a breach of this Chapter or a failure as referred to in paragraph 1, corrective action that may include compensation for the loss or damages suffered. A Party may limit compensation for the loss or damages suffered to either the costs reasonably incurred in the preparation of the tender or in bringing the complaint, or both.
Article 96. Modifications and Rectifications to Coverage
1. A Party may make rectifications of a purely formal nature to its coverage under this Chapter or minor amendments to its Appendices to Annex XIII (Government Procurement), provided that it notifies the other Parties in writing and no Party objects in writing within 45 days from the receipt of the notification. A Party that makes such a rectification or minor amendment does not need to provide compensatory adjustments to the other Parties.
2. A Party may otherwise modify its coverage under this Chapter provided that:
(a) it notifies the other Parties in writing and offers at the same time acceptable compensatory adjustments to maintain a level of coverage comparable to that existing prior to the modification, except where provided for in paragraph 3; and
(b) no Party objects in writing within 45 days from the receipt of the notification.
3. A Party need not provide compensatory adjustments where the Parties agree that the proposed modification covers a procuring entity over which a Party has effectively eliminated its control or influence. If a Party objects to the assertion that such government control or influence has been effectively eliminated, the objecting Party may request further information or consultations with a view to clarifying the nature of any government control or influence and reaching an agreement on the procuring entity’s continued coverage under this Chapter.
Article 97. Facilitation of Participation by Small and Medium-sized Enterprises
1. The Parties recognise the important contribution that small and medium-sized enterprises (SMEs) can make to economic growth and employment and the importance of facilitating the participation of SMEs in government procurement.
2. The Parties also recognise the importance of business alliances between suppliers of each Party, in particular between SMEs, including the joint participation in tendering procedures, provided that this is not used in a manner that is inconsistent with this Chapter.
3. The Parties may exchange information and experiences related to their measures and policies used in order to contribute, promote, encourage or facilitate SMEs participation in government procurement.
4. To facilitate participation of SMEs in covered procurement, each Party may, if appropriate:
(a) share information related to SMEs, including relevant electronic portals;
(b) endeavour to make all tender documentation available free of charge; and
(c) undertake any other activity designed to facilitate the participation of SMEs in government procurement covered by this Chapter.
Article 98. Cooperation
1. The Parties recognise the importance of cooperation with a view to achieving a better understanding of their respective government procurement systems, as well as a better access to their respective markets, in particular for small business suppliers.
2. The Parties shall endeavour to cooperate in matters such as:
(a) development and use of electronic communications in government procurement systems; and
(b) exchange of experiences and information, such as regulatory frameworks, best practice and statistics.
Article 99. Contact Points on Government Procurement
Each Party shall designate and notify a contact point for the purposes of facilitating communication, coordination and efforts between the Parties on matters relating to the implementation of this Chapter, such as:
(a) cooperation between the Parties in accordance with Article 98 (Cooperation);
(b) facilitation of SME’s participation in covered procurement in accordance with Article 97 (Facilitation of participation by small and medium-sized enterprises);
(c) consideration of further negotiations in accordance with Article 100 (Further negotiations); and
(d) identification and resolution of any matter that may arise under this Chapter.
Article 100. Further Negotiations
If, following the entry into force of the Protocol Amending the Free Trade Agreement between the EFTA States and the Republic of Chile, Done at Geneva, this 24th day of June 2024, a Party offers a non-Party additional benefits with regard to its respective government procurement market access coverage agreed under this Chapter, it shall agree, upon request of another Party, to enter into negotiations with a view to extending coverage under this Chapter on a reciprocal basis.
Chapter Vbis. SMALL AND MEDIUM-SIZED ENTERPRISES
Article 101. General Principles
1. The Parties, recognise that small and medium-sized enterprises, including micro-sized enterprises (SMEs), are a fundamental part of economic development, employment creation and innovation.
2. The Parties recognise that non-tariff barriers represent a competitiveness challenge for SMEs. They also recognize that, in addition to the provisions of this Chapter, there are other provisions in the Agreement that may be particularly beneficial to SMEs.
3. The Parties seek to promote dialogue and information sharing in order to enhance the ability of SMEs to take advantage of the opportunities arising from this Agreement.
Article 102. Information Exchange and Transparency
1. Each Party shall establish or maintain publicly and freely accessible websites containing information regarding this Agreement, including:
(a) the text of this Agreement, including all annexes, tariff schedules and product-specific rules of origin;
(b) a summary of this Agreement; and
(c) information for SMEs, containing:
(i) a description of the provisions of this Agreement that the Party considers to be relevant to SMEs; and
(ii) any additional information that the Party considers useful for SMEs interested in benefiting from the opportunities granted by this Agreement.
2. Each Party shall include, on the websites referred to in paragraph 1, links to:
(a) the equivalent websites of the other Parties; and
(b) websites of its government agencies and other appropriate entities that provide information that the Party considers useful to any SME interested in trading, investing or doing business in the territory of the Parties.
3. The information described in subparagraph 2(b) shall at least include:
(a) a description of:
(i) trade procedures informing interested parties of the practical steps for the import, export and transit of goods;
(ii) regulations and procedures on intellectual property rights, including geographical indications;
(iii) rules on government procurement;
(iv) company registration procedures; and
(v) employment regulations, including, where applicable, collective bargaining agreements and their registration procedures.
(b) technical regulations, standards, and measures related to importation and exportation;
(c) sanitary and phytosanitary measures relating to importation and exportation; and
(d) a database containing government procurement notices.
4. Each Party shall endeavour, as far as practicable in English, to include one or several links in the websites provided for in paragraph 1 to databases that are electronically searchable and that include the following information with respect to access to its market:
(a) rates of customs duties and quotas, including most-favoured nation (MFN), rates concerning non-MFN countries and preferential rates;
(b) excise duties;
(c) value added taxes and/or sales taxes; and
(d) customs or other fees, including other product specific fees.
5. Each Party shall ensure that the information and links referred to in paragraphs 1 to 4 that it maintains on its websites are up-to-date and accurate.
6. Each Party shall make the information referred to in paragraphs 1 to 3 available in English.
Article 103. Activities and Cooperation
1. The Parties recognise the importance of cooperating to achieve progress in reducing barriers to SMEs’ access to their respective markets.
2. Cooperation between the Parties shall take the form of exchange of information and dialogue on issues of mutual interest and be channelled through SME contact points.
3. To this end, each Party shall, upon entry into force of this Agreement, promptly designate a SME contact point and notify the other Parties of the contact details as well as, thereafter, of any changes to its SME contact point.
4. Taking into account their SMEs’ specific needs in the implementation of this Agreement, SME contact points shall seek to:
(a) exchange SME-related information, including any matter brought to their attention by SMEs in their trade and investment activities with another Party such as non-tariff measures adversely affecting trade outcomes for SMEs;
(b) exchange policy experiences for SMEs, including in the development of digital windows that facilitate the efforts of SMEs to establish operations in another Party, as well as in other assistance programs and tools;
(c) ensure that the information referred to in Article 102 (Information exchange and transparency) is up-to-date and relevant for SMEs, and recommend any additional information that the Parties may publish; and
(d) consider any other matters of interest to SMEs.
5. Each Party may raise any matter arising in the activities of the SME contact points with the Joint Committee.
6. The SME contact points may cooperate with experts, external organisations and SME stakeholders, as appropriate, in carrying out their activities.
Article 104. Non-application of Dispute Settlement
No Party may have recourse to Chapter X (Dispute Settlement) for any matter arising under this Chapter.
Chapter Vter. DIGITAL TRADE
Article 105. Definitions
1. For the purposes of this Chapter, the definitions set out in Chapters II (Trade in Goods) and III (Trade in Services and Establishment) apply.
2. For the purposes of this Chapter:
(a) “electronic signature” means data in electronic form that are attached to other electronic data used for authentication of the signatory;
(b) “electronic transmissions” means transmissions of electronic data through the Internet;
(c) “electronic trust service” means an electronic service consisting of:
(i) the creation, verification and validation of electronic signatures, electronic seals, electronic time stamps, electronic registered delivery services and certificates related to those services;
(ii) the creation, verification and validation of certificates for website authentication; or
(iii) the preservation of electronic signatures, electronic seals or certificates related to those services;
(d) “end-user” means a user not providing public communications networks or publicly available electronic communications services;
(e) “personal data” means any information relating to an identified or identifiable natural person;
(f) “processing” of personal data means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;
(g) “trade administration documents” means documents, forms or other information, including in electronic formats, as required by a Party’s domestic legislation on commercial trade transactions;
(h) “unsolicited commercial electronic messages” means electronic messages for commercial purposes without the consent of the recipient or against the explicit rejection of the recipient; and
(i) “computing facilities” means computer servers and storage devices for processing or storing information for commercial use.
Article 106. Scope
1. This Chapter applies to measures of the Parties affecting trade enabled by electronic means.
2. In the event of any inconsistency between this Chapter and Section II (Financial Services) of Chapter III (Trade in Services and Establishment) the latter shall prevail to the extent of the inconsistency.
3. This Chapter shall not apply to audio-visual services.
Article 107. General Principles
The Parties recognise:
(a) the economic growth and opportunities that electronic commerce in goods and services provides, in particular for businesses and consumers as well as the potential for enhancing international trade;
(b) the importance of avoiding barriers to the use and development of electronic commerce in goods and services; and
(c) the need to create an environment of trust and confidence in as well as security for electronic commerce, in particular:
(i) protection of privacy of natural persons in relation to the processing of personal data;
(ii) protection of confidentiality of individual records and accounts, and commercial secrets;
(iii) measures to prevent and fight deceptive and fraudulent practices or to deal with the effects of a default on contracts; and
(iv) measures against unsolicited commercial electronic messages.
Article 108. Right to Regulate
The Parties reaffirm the right to regulate in the area of electronic commerce in conformity with this Chapter to achieve legitimate policy objectives.
Article 109. Customs Duties
1. No Party shall impose customs duties on electronic transmissions.
2. For greater certainty, paragraph 1 shall not preclude a Party from imposing internal taxes, fees, or other charges on electronic transmissions, provided that they are imposed in a manner consistent with this Agreement.
Article 110. Electronic Authentication, Trust Services and Contracts by Electronic Means
1. No Party shall deny the legal effect and admissibility as evidence in legal proceedings of an electronic document, electronic signature, electronic seal, electronic time stamp or of data sent and received using an electronic registered delivery service, solely on the ground that it is in electronic form.
2. No Party shall adopt or maintain measures that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate electronic authentication methods for their transaction; or
(b) prevent parties to an electronic transaction from being able to prove to judicial or administrative authorities that the use of electronic authentication or an electronic trust service in that transaction complies with the applicable legal requirements.
3. Notwithstanding paragraph 2, each Party may require that for a particular category of transactions, the method of electronic authentication or trust service is either certified by an authority accredited in accordance with its domestic laws and regulations or that the method meets certain performance standards which shall be objective, transparent and non-discriminatory and shall only relate to the specific characteristics of the category of transactions concerned.
4. Except to the extent provided under a Party’s domestic laws and regulations in relation to certain types of contracts, a Party shall not deny that contracts may be concluded by electronic means.
5. Each Party shall ensure that its domestic laws and regulations do not deprive electronic contracts of legal effect and validity solely on the ground that contracts have been made by electronic means.
Article 111. Paperless Trade Administration
1. Each Party shall make all trade administration documents publicly available in electronic form.
2. Each Party shall accept electronic versions of trade administration documents as legal equivalents of paper documents except if:
(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.
Article 112. Open Internet Access
Subject to applicable domestic laws and regulations, each Party shall adopt or maintain appropriate measures to ensure that end-users in its territory are able to:
(a) access, distribute and use services and applications of their choice available through the Internet, subject to reasonable and non-discriminatory network management;
(b) connect devices of their choice to the Internet, provided that such devices comply with the requirements in the territory where they are used and do not harm the network; and
(c) have access to information on the network management practices of their Internet access service supplier.