3. The process of, and the time required for, registering and / or qualifying suppliers shall not be used in order to keep suppliers of the other Party off a list of suppliers or from being considered for a particular procurement.
4. Entities maintaining permanent lists of registered and / or qualified suppliers shall ensure that suppliers may apply for registration or qualification at any time, and that all registered and qualified suppliers are included in the lists within a reasonably short time.
5. Nothing in this Article shall preclude an entity from excluding a supplier from a procurement on grounds such as bankruptcy or false declaration, provided that such an action is consistent with the national treatment provisions of this Chapter.
Article 8.13. Limited Tendering Procedures
1. Entities shall award contracts by means of open tendering procedures, in the course of which any interested supplier may submit a tender.
2. Provided that the tendering procedure is not used to avoid competition or to protect domestic suppliers, entities may award contracts by means other than open tendering procedures in the following circumstances, where applicable:
(a) in the absence of tenders that conform to the essential requirements in the tender documentation provided in a prior invitation to tender, including any conditions for participation, on condition that the requirements of the initial procurement are not substantially modified in the contract as awarded;
(b) where, for works of art, or for reasons connected with the protection of exclusive rights, such as patents or copyrights, or proprietary information, or where there is an absence of competition for technical reasons, the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute exists;
(c) for additional deliveries by the original supplier that are intended either as replacement parts, extensions, or continuing services for existing equipment, software, services or installations, where a change of supplier would compel the entity to procure goods or services not meeting requirements of inter-changeability with existing equipment, software, services, or installations;
(d) for goods purchased on a commodity market;
(e) where an entity procures a prototype or a first good or service that is developed at its request in the course of, and for, a particular contract for research, experiment, study or original development. When such contracts have been fulfilled, subsequent procurements of such goods or services shall be subject to the principles and procedures laid down in this Chapter;
(f) where additional construction services that were not included in the initial contract but that were within the objectives of the original tender documentation have, due to unforeseeable circumstances, become necessary to complete the construction services described therein. However, the total value of contracts awarded for additional construction services may not exceed 50 percent of the amount of the initial contract;
(g) for new construction services consisting of the repetition of similar construction services which conform to a basic project for which an initial contract was awarded in accordance with Articles 8.3 to 8.12;
(h) in so far as is strictly necessary where, for reasons of urgency brought about by events unforeseeable by the entity, the goods or services could not be obtained in time by means of an open tendering procedure and the use of an open tendering procedure would result in serious injury to the entity, or the entity's program responsibilities, or the Party; or
(i) in the case of contracts awarded to the winner of a design contest provided that the contest has been organized in a manner which is consistent with the principles of this Chapter. The contest shall be judged by an independent jury with a view to design contracts being awarded to the winners.
3. An entity shall maintain a record for a period of at least one year from the date of the award of a contract, or prepare a written report on the contract awarded under these provisions, containing the name of the entity, the value and kind of goods or services procured, country of origin and the specific justifications for use of tender procedures other than open tendering procedures, as provided in paragraph 2.
Article 8.14. Information on Awards
1. Subject to Article 8.20 (Non-Disclosure of Information), an entity shall promptly inform suppliers participating in a tendering procedure of its contract award decision. The award notice should include at least the following information:
(a) the name of the entity;
(b) a description of the goods or services procured;
(c) the name of the winning supplier;
(d) the value of the contract award; and
(e) where the entity has not used open tendering procedure, an indication of the circumstances according to Article 8.13 (Limited Tendering Procedures) justifying the procedures used.
2. Entities shall, on request from an unsuccessful supplier of the other Party which participated in the relevant tender, promptly provide pertinent information concerning reasons for the rejection of its tender, unless the release of such information would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interest of particular enterprises, public or private, or might prejudice fair competition between suppliers.
Article 8.15. Modifications and Rectifications to Coverage
1. When an entity or party thereof listed in Annex 8A is corporatised or privatized as a legal entity separate and distinct from the Government of a Party, regardless of whether or not the Government holds any shares in such a legal entity, this Chapter shall no longer apply to that entity or the party thereof that is so corporatised or privatized. A Party shall notify the other Party of the name of such an entity before it is corporatised or privatized or as soon as possible thereafter. The Parties agree that no claim for compensatory adjustments shall be made in all such cases.
2. A Party may make technical rectifications of a purely formal nature to its coverage under this Chapter, or minor amendments to its schedules in Annex 8A to this Chapter, provided that it notifies the other Party in writing and that the other Party does not object in writing within 30 days of the notification. For such technical rectifications or minor amendments, no compensatory adjustments need to be provided to the other Party.
Article 8.16. Transparency
The Parties shall apply all procurement laws, regulations, procedures and practices consistently, fairly and equitably so that their corporate governance structures provide transparency to potential suppliers.
Article 8.17. Electronic Procurement
1. The Parties shall, within the context of their commitment to promote electronic commerce, seek to provide opportunities for government procurement to be undertaken through electronic means, hereinafter referred to as “e-procurement”.
2. Each Party shall work toward a single entry point for the purpose of enabling suppliers to access information on procurement opportunities in its territory.
3. Each Party shall endeavour to make procurement opportunities that are available to the public accessible to suppliers via the Internet or any publicly available electronic medium. Each Party shall endeavour to make available relevant documentation by the same means.
4. Each Party shall encourage its entities to publish, as early as possible in the fiscal year, information regarding the entity’s indicative procurement plans in the e-procurement portal.
Article 8.18. Challenge Procedures
1. In the event of a complaint by a supplier of a Party that there has been a breach of this Chapter in the context of procurement by an entity of the other Party, that Party shall encourage the supplier to seek resolution of its complaint in consultation with the entity of the other Party. In such instances the entity of the other Party shall accord timely and impartial consideration to any such complaint, in such a manner that is not prejudicial to obtaining corrective measures under the challenge system.
2. Each Party shall provide suppliers of the other Party with non- discriminatory, timely, transparent and effective procedures, consistent with the principle of due process, to challenge alleged breaches of this Chapter arising in the context of procurements in which they have, or have had, an interest.
3. Each Party shall provide its challenge procedures in writing and make them generally available. An entity’s total liability under these procedures for any breach of this Chapter or compensation for loss or damages suffered shall be limited to the costs for tender preparation reasonably incurred by the supplier for the purpose of the procurement.
Article 8.19. Exceptions
1. Nothing in this Chapter shall be construed to prevent any Party from taking any action or not disclosing any information which it considers necessary for the protection of its essential security interests relating to procurement indispensable for national security or for national defence purpose.
2. 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 the same conditions prevail or a disguised restriction on international trade, nothing in this Chapter shall be construed to prevent any Party from imposing or enforcing measures:
(a) necessary to protect public morals, order or safety;
(b) necessary to protect human, animal or plant life or health;
(c) necessary to protect intellectual property; or
(d) relating to the products or services of handicapped persons, of philanthropic institutions or of prison labour.
Article 8.20. Non-Disclosure of Information
1. The Parties, their entities, and their review authorities shall not disclose confidential information, if such disclosure would prejudice the legitimate commercial interests of a particular person or might prejudice fair competition between suppliers, without the formal authorisation of the person that provided such information to the Party.
2. Nothing in this Chapter shall be construed as requiring a Party or its entities to disclose confidential information, if such disclosure would impede law enforcement or otherwise be contrary to the public interest.
Article 8.21. Cooperation
The Parties agree make available information and share best practices relating to government procurement, including the development and use of electronic means in government procurement systems.
Article 8.22. Definitions
For purposes of this Chapter:
1. entity means an entity of a Party listed in Annex 8A;
2. offsets means measures used to encourage local development or improve the balance-of-payments accounts by means of domestic content, licensing of technology, investment requirements, counter-trade or similar requirements;
3. publish means to disseminate information in an electronic or paper medium that is distributed widely and is readily accessible to the general public; and
4. supplier means a person that has provided, provides or could provide goods or services to an entity.
Chapter 9. Investment
Article 9.1. Definitions
For the purposes of this Chapter:
1. enterprise means any entity constituted or organized under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, including a corporation, trust, partnership, sole proprietorship, joint venture, association, or similar organization; and a branch of an enterprise;
2. enterprise of a Party means an enterprise constituted or organized under the law of a Party, and a branch located in the territory of a Party;
3. freely useable currency means a currency widely used to make payments for international transactions as classified by the International Monetary Fund;
4. investment means every kind of asset, owned or controlled, directly or indirectly, by an investor, that includes characteristics such as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk, including but not limited to the following (1):
(a) an enterprise;
(b) shares, stock, and other forms of equity participation in an enterprise, including rights derived therefrom;
(c) bonds, debentures, and loans and other debt instruments of an enterprise (2) (3), including rights derived therefrom;
(d) futures, options, and other derivatives;
(e) turnkey, construction, management, production, concession, revenue-sharing, and other similar contracts;
(f) claims to money or to any contractual performance related to a business and having an economic value;
(g) intellectual property rights and goodwill;
(h) licenses, authorizations, permits, and similar rights conferred pursuant to applicable domestic law (4) (5), including any concession to search for, cultivate, extract or exploit natural resources; and
(i) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens, and pledges.
5. investor means an enterprise of a Party, or a natural person of a Party, as defined in Article 1.3 (Definitions of General Application), that has made, is in the process of making, or is seeking to make an investment;
Article 9.2. Scope and Coverage
1. This Chapter applies to measures adopted or maintained by a Party relating to:
(a) investors of the other Party;
(b) investments of investors of the other Party, made, in the process of being made, or sought to be made, in the territory of the former Party;
(c) with respect to Article 9.6, all the investments in the territory of the Party.
2. This Chapter shall not apply to:
(a) any taxation measure unless otherwise provided;
(b) government procurement; and
(c) services supplied in the exercise of governmental authority within the territory of each respective Party. For the purposes of this Chapter, a service supplied in the exercise of governmental authority means any service that is supplied neither on a commercial basis nor in competition with one or more service suppliers.
3. In the event of any inconsistency between this Chapter and another Chapter, the other Chapter shall prevail over this Chapter to the extent of the inconsistency.
4. This Chapter shall not apply to measures adopted or maintained by a Party to the extent that they are covered by Chapter 11 (Financial Services).
5. The requirement by a Party that a service provider of the other Party post a bond or other form of financial security as a condition of providing a service into its territory does not of itself make this Chapter applicable to the provision of that cross-border service. This Chapter applies to that Party’s treatment of the posted bond or financial security.
6. This Chapter does not apply to claims arising out of events which occurred, or claims which had been raised, prior to the entry into force of this Agreement.
Article 9.3. National Treatment
1. Each Party shall accord to investors of the other Party treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory.
2. Each Party shall accord to investments of investors of the other Party treatment no less favourable than that it accords, in like circumstances, to investments in its territory of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.
Article 9.4. Most-Favoured Nation Treatment
1. Each Party shall accord to investors of the other Party treatment no less favourable than that it accords, in like circumstances, to investors of any non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory.
2. Each Party shall accord to investments of investors of the other Party treatment no less favourable than that it accords, in like circumstances, to investments in its territory of investors of any non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.
Article 9.5. Minimum Standard of Treatment
1. Each Party shall accord to investments of investors of the other Party treatment in accordance with customary international law minimum standard of treatment of aliens (6), including fair and equitable treatment and full protection and security.
2. The concepts of "fair and equitable treatment" and "full protection and security" in paragraph 1 do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens and do not create additional substantive rights. The obligation to provide:
(a) “fair and equitable treatment” includes the obligation not to deny justice in criminal, civil or administrative adjudicatory proceedings; and
(b) “full protection and security” requires each Party to provide the level of police protection required under customary international law.
3. A determination that there has been a breach of another provision of this Agreement, or of a separate international agreement, does not establish that there has been a breach of this Article.
4. Without prejudice to paragraph 1, each Party shall accord to investors of the other Party, and to investments of investors of the other Party, non- discriminatory treatment with respect to measures it adopts or maintains relating to losses suffered by investments in its territory owing to armed conflict or civil strife.
5. Paragraph 4 does not apply to existing measures relating to subsidies or grants, or to any conditions attached to the receipt or continued receipt of such subsidies or grants, whether or not such subsidies or grants are offered exclusively to investors of the Party or investments of investors of the Party, that would be inconsistent with Articles 9.3 and Article 9.4 but for Article 9.10.4.
Article 9.6. Performance Requirements
1. Neither Party may impose or enforce any of the following requirements, or enforce any commitment or undertaking, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment of an investor of a Party or of a non- Party in its territory to:
(a) export a given level or percentage of goods or services;
(b) achieve a given level or percentage of domestic content;
(c) purchase, use or accord a preference to goods produced in its territory, or to purchase goods from persons in its territory;
(d) relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment;
(e) restrict sales of goods or services in its territory that such investment produces or provides by relating such sales in any way to the volume or value of its exports or foreign exchange earnings;
(f) transfer a particular technology, production process or other proprietary knowledge to a person in its territory;
(g) supply exclusively from the territory of the Party the goods that it produces or the services that it provides to a specific regional market or to the world market.
2. Neither Party may condition the receipt or continued receipt of an advantage, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment in its territory of an investor of a Party or of a non-Party, on compliance with any of the following requirements:
(a) to achieve a given level or percentage of domestic content;
(b) to purchase, use or accord a preference to goods produced in its territory or to purchase goods from persons in its territory;
(c) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment; or
(d) to restrict sales of goods or services in its territory that such investment produces or provides by relating such sales in any way to the volume or value of its exports or foreign exchange earnings.
3. (a) Nothing in paragraph 2 shall be construed to prevent a Party from conditioning the receipt or continued receipt of an advantage, in connection with an investment in its territory of an investor of a Party or of a non-Party, on compliance with a requirement to locate production, provide a service, train or employ workers, construct or expand particular facilities, or carry out research and development, in its territory.
(b) The provisions of paragraph 1(f) do not apply:
(i) when a party authorizes use of an intellectual property right in accordance with Article 31 of the TRIPS Agreement, or to measures requiring the disclosure of proprietary information that fall within the scope of, and are consistent with Article 39 of the TRIPS Agreement; or
(ii) when the requirement is imposed or the commitment or undertaking is enforced by a court, administrative tribunal or competition authority to remedy a practice determined after judicial or administrative process to be anti- competitive under the Party’s competition laws.
(c) Paragraphs (1)(a), (b) and (c), and (2)(a) and (b) do not apply to qualification requirements for goods or services with respect to export promotion and foreign aid programs;
(d) The provisions of paragraphs (2)(a) and (b) do not apply to requirements imposed by an importing Party relating to the content of goods necessary to qualify for preferential tariffs or preferential quotas.
4. For greater certainty, paragraphs 1 and 2 do not apply to any requirement other than the requirements set out in those paragraphs.
5. Nothing in this Article shall be construed so as to derogate from the rights and obligations of the Parties under the Agreement on Trade Related Investment Measures in Annex 1A of the WTO Agreement.
6. This Article does not preclude the application of any commitment, undertaking or requirement between private parties, where a Party did not impose or require the commitment, undertaking or requirement.
Article 9.7. Expropriation and Compensation (7)
1. Neither Party shall expropriate or take measures having effect equivalent to expropriation (“expropriation”) the investments of investors of the other Party unless such a measure is taken on a non-discriminatory basis, for a public purpose, in accordance with due process of law, and upon payment of compensation in accordance with this Article.
2. The expropriation shall be accompanied by the payment of prompt, adequate and effective compensation. Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation or impending expropriation became public knowledge. Compensation shall carry an appropriate interest, taking into account the length of time from the time of expropriation until the time of payment. Such compensation shall be effectively realizable, freely transferable in accordance with Article 9.8 and made without delay.
3. Notwithstanding paragraphs 1 and 2, any measure of expropriation relating to land, which shall be as defined in the existing domestic legislation of the expropriating Party on the date of entry into force of this Agreement, shall be for a purpose and upon payment of compensation made in accordance with the aforesaid legislation. Such compensation shall be subject to any subsequent amendments to the aforesaid legislation relating to the amount of compensation where such amendments follow the general trends in the market value of the land.
4. This Article does not apply to the issuance of compulsory licenses granted in relation to intellectual property rights, or to the revocation, limitation or creation of intellectual property rights, to the extent that such issuance, revocation, limitation or creation is consistent with the Agreement on Trade- Related Aspects of Intellectual Property Rights in Annex 1C to the TRIPS Agreement.
Article 9.8. Transfers
1. Each Party shall permit all transfers relating to investments in its territory of an investor of the other Party to be made freely and without delay into and out of its territory. Such transfers include:
(a) contributions to capital;
(b) profits, dividends, capital gains, and proceeds from the sale of all or any part of the investment or from the partial or complete liquidation of the investment;
(c) interest, royalty payments, management fees, and technical assistance and other fees;
(d) payments made under a contract entered into by the investor, or its investment, including payments made pursuant to a loan agreement;
(e) payments made pursuant to Articles 9.7 and 9.5.4; and
(f) payments arising under Article 9.13.
2. Each Party shall permit such transfers to be made in a freely usable currency at the market rate of exchange prevailing at the time of transfer.
3. Notwithstanding paragraphs 1 and 2, a Party may prevent a transfer through the equitable, non-discriminatory, and good faith application of its laws relating to:
(a) bankruptcy, insolvency, or the protection of the rights of creditors;
(b) issuing, trading, or dealing in securities, futures, options, or derivatives;
(c) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;
(d) criminal or penal offences;
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings; or
(f) social security, public retirement or compulsory savings schemes.