Article 14.52. Damages
1. Each Party shall provide that in civil judicial proceedings its judicial authorities have the authority to order an infringer who, knowingly or with reasonable grounds to know, engaged in activities infringing intellectual property rights to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement.
2. In determining the amount of damages for infringements of intellectual property rights, the judicial authorities of each Party may consider, inter alia, any legitimate measure of value that may be submitted by the right holder, which may include lost profits.
3. A Party may provide in its laws and regulations presumptions (2) for determining the amount of damages referred to in paragraph 1.
Article 14.53. Costs
Each Party shall provide that its judicial authorities, where appropriate, have the authority to order, at the conclusion of civil judicial proceedings concerning infringements of intellectual property rights, that the prevailing party be awarded payment by the losing party of court costs or fees and appropriate attorney's fees, or any other expenses as provided for under its laws and regulations.
Article 14.54. Presumption of Authorship or Ownership
1. Each Party shall ensure that it is sufficient for the name of an author of a literary or artistic work to appear on the work in the usual manner in order for that author to be regarded as such, unless there is a proof to the contrary, and consequently to be entitled to institute infringement proceedings.
2. A Party may apply paragraph 1 mutatis mutandis to the holders of rights related to copyright with regard to their protected subject matter.
Article 14.55. Access to Justice
The Parties recognise the importance of ensuring that right holders have access to justice and shall ensure that they have in place an effective judicial system and alternative dispute resolution mechanisms to allow right holders to enforce their rights without unwarranted delay and without unreasonable costs.
Subsection 3. Enforcement of Protection Against Misappropriation of Trade Secrets
Article 14.56. Civil Procedures and Remedies
1. Each Party shall provide for appropriate civil judicial procedures and remedies for a trade secret holder to prevent, and obtain redress for, the acquisition, use or disclosure of a trade secret whenever carried out in a manner contrary to honest commercial practices.
2. Each Party shall provide, in accordance with its laws and regulations, that its judicial authorities have the authority to order that the parties, their lawyers and other persons concerned in the relevant civil judicial proceedings, are not permitted to use or disclose any trade secret or alleged trade secret which the judicial authorities have identified as confidential (1), in response to a duly reasoned application by an interested party and of which these parties, lawyers and other persons have become aware as a result of their participation in such civil judicial proceedings.
3. In the relevant civil judicial proceedings each Party shall provide that its judicial authorities have at least the authority to:
(a) order injunctive relief to prevent the acquisition, use or disclosure of the trade secret in a manner contrary to honest commercial practices;
(B) order the person that knew or ought to have known (1) that he, she or it was acquiring, using or disclosing a trade secret in a manner contrary to honest commercial practices to pay the trade secret holder damages appropriate to the actual prejudice suffered as a result of such acquisition, use or disclosure of the trade secret;
(c) take specific measures to preserve the confidentiality of any trade secret or alleged trade secret produced in civil judicial proceedings relating to the alleged acquisition, use and disclosure of a trade secret in a manner contrary to honest commercial practices. Such specific measures may include, in accordance with its laws and regulations, the possibility of restricting access to certain documents in whole or in part; of restricting access to hearings and their corresponding records or transcript; and of making available a non-confidential version of a judicial decision in which the passages containing trade secrets have been removed or redacted; and
(d) impose sanctions on the parties, their lawyers and other persons concerned in the civil judicial proceedings for violation of judicial orders referred to in paragraph 2 concerning the protection of a trade secret or alleged trade secret produced in those proceedings.
4. A Party shall not be required to provide for the civil judicial procedures and remedies referred to in paragraph 1 when conduct contrary to honest commercial practices is carried out, in accordance with its relevant laws and regulations, to reveal misconduct, wrongdoing or illegal activity or to protect a legitimate interest recognised by law.
Subsection 4. Enforcement - Border Measures
Article 14.57. Enforcement - Border Measures
1. With respect to goods imported or exported (1), each Party shall adopt or maintain procedures under which a right holder may submit applications requesting its customs authority to suspend the release of or detain goods suspected of infringing trademarks, copyright and related rights, geographical indications (2), patents, utility models, industrial designs, and plant variety rights (hereinafter referred to in this Article as "suspect goods") in its customs territory.
2. Each Party shall have in place electronic systems for the management by its customs authority of the applications referred to in paragraph 1 once they have been granted or recorded.
3. The customs authority of each Party shall decide on granting or recording the applications referred to in paragraph 1 within a reasonable period of time from the submission of the applications.
4. Each Party shall provide for the applications referred to in paragraph 1 to apply to multiple shipments.
5. With respect to goods imported or exported, the customs authority of each Party shall have the authority to act upon its own initiative to suspend the release of or detain suspect goods in the customs territory of that Party. (1)
6. Article 4.9 covers detection of suspect goods referred to in this Article.
7. Without prejudice to its laws and regulations relating to the privacy or confidentiality of information, a Party may authorise its customs authority to provide a right holder with information about goods, including a description and the quantities thereof, and if known, the name and address of the consignor, importer, exporter or consignee, and the country of origin of the goods, whose release has been suspended, or which have been detained.
8. A Party may adopt or maintain procedures by which its competent authorities may determine, within a reasonable period after the initiation of the procedures described in paragraphs 1 and 5, whether the suspect goods are infringing. In such case, the competent authorities shall have the authority to order the destruction of goods following a determination that the goods are infringing. A Party may have in place procedures allowing for the destruction of suspect goods without there being any need for the formal determination on the infringement, where the persons concerned agree or do not oppose to destruction.
9. If a Party requests right holders to bear the costs actually incurred for the storage or destruction of the goods whose release has been suspended, or which have been detained in accordance with paragraphs 1 and 5, those costs shall correspond to the services rendered for the storage or destruction of the goods.
10. There shall be no obligations to apply this Article to the import of goods put on the market in another country by or with the consent of the right holder. A Party may exclude from the application of this Article small quantities of goods of a non-commercial nature contained in travellers' personal luggage.
11. Consultations referred to in paragraph 4 of Article 4.3 shall also deal with the border measures by the customs authority of each Party under this Article.
12. The customs authorities of the Parties may cooperate on border measures against infringements of intellectual property covered by this Sub-Section.
13. Without prejudice to the responsibilities of the Committee on Intellectual Property referred to in Article 14.61, the Committee on Rules of Origin and Customs-Related Matters referred to in Article 4.14 may consider the possibility of cooperation on the following:
(a) exchanging general information regarding seizures of infringing goods or suspect goods; and
(b) holding a dialogue on specific topics of common interest concerning:
(i) general information regarding the use of risk management systems in the detection of suspect goods; and
(ii) general information regarding risk analysis in the fight against infringing goods.
Subsection 5. Enforcement - Criminal Remedies
Article 14.58. Criminal Procedures and Penalties
1. Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale (1).
2. Each Party shall treat wilful importation or exportation of counterfeit trademark goods or pirated copyright goods carried out on a commercial scale as unlawful activities subject to criminal penalties. (2)
3. Each Party shall provide for criminal procedures and penalties to be applied in cases of wilful importation (3) and domestic use, in the course of trade and on a commercial scale, of a label or packaging: (4)
(a) to which a trademark has been applied without authorisation that is identical to, or cannot be distinguished from, a trademark registered in its territory; and
(b) that is intended to be used in the course of trade on goods that are identical to goods for which that trademark is registered.
4. Recognising the need to address the unauthorised copying (1) of a cinematographic work from a performance in a movie theatre that causes significant harm to a right holder in the market for that work, and recognising the need to deter such harm, each Party shall adopt or maintain measures, which shall at a minimum include, but need not be limited to, appropriate criminal procedures and penalties.
5. With respect to the offences for which this Article requires a Party to provide for criminal procedures and penalties, each Party shall ensure that criminal liability for aiding and abetting is available under its law.
6. With respect to the offences described in paragraphs 1 to 5, each Party shall provide the following:
(a) Its judicial or other competent authorities have the authority to order the seizure of suspected counterfeit trademark goods or pirated copyright goods, any related materials and implements used in the commission of the alleged offence, documentary evidence relevant to the alleged offence and assets derived from, or obtained through the alleged infringing activity. If a Party requires identification of items subject to seizure as a prerequisite for issuing a judicial order referred to in this subparagraph, that Party shall not require the items to be described in greater detail than necessary to identify them for the purpose of seizure.
(b) The judicial authorities of a Party have the authority in accordance with the laws and regulations of such Party to order the forfeiture of any assets derived from or obtained through the infringing activity.
(c) The judicial authorities of a Party have the authority in accordance with the laws and regulations of such Party to order the forfeiture or destruction of:
(i) all counterfeit trademark goods or pirated copyright goods;
(ii) materials and implements that have been predominantly used in the creation of counterfeit trademark goods or pirated copyright goods; and
(iii) any other labels or packaging to which a counterfeit trademark has been applied and that have been used in the commission of the offence.
In cases in which counterfeit trademark goods and pirated copyright goods are not destroyed, the judicial or other competent authorities shall ensure that, except in exceptional circumstances, those goods are disposed of outside the channels of commerce in such a manner as to avoid causing any harm to the right holder. Each Party shall further provide that forfeiture or destruction under this subparagraph shall occur without compensation of any kind to the defendant.
(d) Its judicial or other competent authorities have the authority to release, or alternatively, provide access to, goods, material, implements and other evidence held by the relevant authority to a right holder for civil (1) infringement proceedings.
7. With respect to the offences described in paragraphs 1 to 5, a Party may provide that its judicial authorities have the authority to order the seizure or forfeiture of assets, or alternatively, a fine, the value of which corresponds to the assets derived from, or obtained directly or indirectly through, the infringing activity.
8. Each Party shall adopt such measures as may be necessary, consistent with its legal principles, to establish the liability, which may be criminal, of legal persons for the offences specified in this Article for which the Party provides criminal procedures and penalties. Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the criminal offences.
Subsection 6. Enforcement In the Digital Environment
Article 14.59. Enforcement In the Digital Environment
1. The Parties shall ensure that enforcement procedures, to the extent set forth in Sub-Sections 2 and 5, are available under its law so as to permit effective action against an act of infringement of intellectual property rights which takes place in the digital environment, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringements.
2. Each Party shall take appropriate measures to limit the liability of, or remedies available against, online service providers for intellectual property rights infringement by the users of their online services or facilities, where the online service providers take action to prevent access to the materials infringing intellectual property rights in accordance with the laws and regulations of the Party.
3. Further to paragraph 1, each Party's enforcement procedures shall apply to the infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes, and to the infringement of trademarks, including through electronic commerce platforms and social media. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party's law, preserves fundamental principles such as freedom of expression, fair process and privacy.
4. Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party's law, preserving fundamental principles such as freedom of expression, fair process and privacy.
5. A Party may provide, in accordance with its laws and regulations, its competent authorities (1) with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of trademark or copyright or related rights infringement, and where such information is being sought for the purpose of protecting or enforcing those rights. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party's law, preserves fundamental principles such as freedom of expression, fair process and privacy.
6. The Parties shall, as appropriate, promote the adoption of measures to enhance public awareness of the importance of respecting intellectual property rights and the detrimental effect of intellectual property rights infringement. This may include cooperation with the business community, civil society organisations and right holder representatives.
Section D. Cooperation and Institutional Arrangements
Article 14.60. Cooperation
1. The Parties, recognising the growing importance of the protection of intellectual property in further promoting trade and investment between them, shall cooperate on intellectual property, including by exchange information on relations of a Party with third countries on matters concerning intellectual property, in accordance with their respective laws and regulations and subject to their available resources.
2. For the purposes of paragraph 1, cooperation may include exchange of information, sharing of experiences and skills and any other form of cooperation or activities as may be agreed between the Parties. Such cooperation may cover areas such as:
(a) developments in domestic and international intellectual property policy;
(b) intellectual property administration and registration systems;
(c) education and awareness relating to intellectual property;
(d) intellectual property issues relevant to:
(i) small and medium-sized enterprises;
(ii) science, technology and innovation activities; and
(iii) the generation, transfer and dissemination of technology;
(e) policies involving the use of intellectual property for research, innovation and economic growth;
(f) the implementation of multilateral intellectual property agreements, such as those concluded or administered under the auspices of the WIPO;
(g) technical assistance for developing countries;
(h) best practices, projects and programmes related to the fight against infringements of intellectual property rights including measures in respect of websites registered outside the territories of the Parties; and
(i) exploration of the possibility for further work on common efforts against infringements of intellectual property rights worldwide.
3. The Parties shall seek to cooperate with regard to activities for improving the international intellectual property regulatory framework, including by encouraging further ratification of existing international agreements and by fostering international harmonisation, administration and enforcement of intellectual property rights and on activities in international organisations including the WTO and the WIPO.
Article 14.61. Committee on Intellectual Property
1. The Committee on Intellectual Property established pursuant to Article 23.3 (hereinafter referred to in this Article as "the Committee") shall be responsible for the effective implementation and operation of this Chapter.
2. The Committee shall have the following functions:
(a) reviewing and monitoring the implementation and operation of this Chapter;
(b) exchanging information on legislative and policy developments on geographical indications and on any other matter of mutual interest in the area of geographical indications, including any matter arising from applicable requirements of specifications of geographical indications listed in Annex 14-B with respect to their protection under this Agreement;
(c) discussing any issues related to intellectual property with a view to enhancing protection of intellectual property and enforcement of intellectual property rights and to promoting efficient and transparent administration of intellectual property systems;
(d) reporting its findings and the outcomes of its discussions to the Joint Committee; and
(e) carrying out other functions as may be delegated by the Joint Committee pursuant to subparagraph 5(b) of Article 23.1.
3. The Committee shall make recommendations to the Joint Committee on amendments to Annex 14-A and Annex 14-B on request of a Party.
4. Each Party shall examine any request of the other Party concerning the amendment of Annex 14-B, in accordance with Article 14.34.
5. The Committee may invite representatives of relevant entities other than the Parties, including from the private sector, with the necessary expertise relevant to the issues to be discussed.
Article 14.62. Security Exceptions
For the purposes of this Chapter, Article 73 of the TRIPS Agreement is hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 14.63. Dispute Settlement
Article 14.60 shall not be subject to dispute settlement under Chapter 22.
Chapter 15. CORPORATE GOVERNANCE
Article 15.1. Objectives
1. The Parties acknowledge the importance of an effective corporate governance framework to achieve economic growth through well-functioning markets and sound financial systems based on transparency, efficiency, trust and integrity.
2. Each Party shall take appropriate measures to develop an effective corporate governance framework within its territory, recognising that those measures will attract and encourage investment by enhancing investor confidence and improving competitiveness, thus enabling best advantage to be taken of the opportunities granted by its respective market access commitments.
3. Without limiting the ability of each Party to develop its own legal, institutional and regulatory framework in relation to the corporate governance of publicly listed companies, the Parties commit to respect the principles and adhere to the provisions of this Chapter to the extent that they facilitate access to each other's markets as provided for in this Agreement.
4. The Parties shall cooperate on matters relating to the development of an effective corporate governance framework which fall within the scope of this Chapter.
Article 15.2. Definitions
For the purposes of this Chapter:
(a) "board" means the governing body of a publicly listed company with a decision-making authority on the oversight of the operations of the company, whose members (directors) are elected, normally by the shareholders of the company, to govern the company;
(b) "corporate governance" means the set of relationships between a company's management, its board, its shareholders and other stakeholders; it also provides the structure through which a company is managed and controlled, notably by determining how the objectives of the company are set and the means of attaining those objectives, as well as by monitoring performance;
(c) "corporate governance framework" of a Party means the principles and rules of a binding or non-binding nature regarding the corporate governance of publicly listed companies, as applicable according to the competences and legislation of that Party; and
(d) "publicly listed company" means a legal person whose shares are listed or quoted for public trading on a stock market or regulated market of a Party as defined in the legislation of that Party.
Article 15.3. General Principles
1. The Parties recognise the importance of the role of the corporate governance framework in providing timely and accurate disclosure on all material matters regarding publicly listed companies within their respective jurisdictions, including the financial situation, performance, ownership and governance of those companies.
2. The Parties also recognise the importance of the role of the corporate governance framework in providing appropriate accountability of the management and the board towards the shareholders, responsible board decision-making based on an independent and objective standpoint, and equal treatment of shareholders of the same class.
3. For greater certainty, the provisions of the corporate governance framework of a Party referred to in Articles 15.4 and 15.5 may be implemented either through legally binding mechanisms or through non-binding means such as on a comply or explain basis.
4. A Party may provide that some corporate governance principles or rules do not apply to certain companies in cases justified by objective and non-discriminatory criteria such as early phase of development or size of the company.
Article 15.4. Rights of Shareholders and Ownership Functions
1. The corporate governance framework of each Party shall include provisions aiming at protecting and facilitating the effective exercise of shareholders' rights in publicly listed companies. Those rights include, where applicable, participation and voting in the general meeting as well as election and removal of members of the board in accordance with the corporate governance structure of the company with a view to allowing shareholders to oversee board behaviour (1) and participate in important decision-making of the company.
2. The corporate governance framework of each Party shall include provisions aiming at encouraging disclosure of information regarding the control of a company which can be valuable and useful to investors. That information includes, for instance, the capital structure, with an indication of the different classes of shares where appropriate, direct and indirect shareholdings which are considered to be significant, and special control rights.
Article 15.5. Roles of the Board
The corporate governance framework of each Party shall include provisions aiming at the following, so that such framework will promote responsible board decision-making:
(a) the effective monitoring of management by the board from an independent and objective standpoint, which can be achieved, for instance, through the effective use of a sufficient number of independent directors (1);
(b) ensuring board accountability to the shareholders; and
(c) ensuring sufficient disclosure of information relevant to investors, for instance with respect to board composition, board committees and independence of directors.
Article 15.6. Takeovers
Each Party Shall Provide Rules and Procedures Governing Takeovers In Publicly Listed Companies.Such rules and procedures shall aim at enabling those transactions to occur at transparent prices and under fair conditions.
Article 15.7. Dispute Settlement
The provisions of this Chapter shall not be subject to dispute settlement under Chapter 22.
Chapter 16. TRADE AND SUSTAINABLE DEVELOPMENT
Article 16.1. Context and Objectives
1. The Parties recognise the importance of promoting the development of international trade in a way that contributes to sustainable development, for the welfare of present and future generations, taking into consideration the Agenda 21 adopted by the United Nations Conference on Environment and Development on 14 June 1992, the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up adopted by the International Labour Conference on 18 June 1998, the Plan of Implementation adopted by the World Summit on Sustainable Development on 4 September 2002, the Ministerial Declaration entitled "Creating an environment at the national and international levels conducive to generating full and productive employment and decent work for all, and its impact on sustainable development" adopted by the Economic and Social Council of the United Nations on 5 July 2006, the ILO Declaration on Social Justice for a Fair Globalization adopted by the International Labour Conference on 10 June 2008, the outcome document of the United Nations Conference on Sustainable Development, entitled "The future we want" adopted by the General Assembly of the United Nations on 27 July 2012, and the outcome document of the United Nations summit for the adoption of the post-2015 development agenda, entitled "Transforming our world: the 2030 Agenda for Sustainable Development" adopted by the General Assembly of the United Nations on 25 September 2015.
2. The Parties recognise the contribution of this Agreement to the promotion of sustainable development, of which economic development, social development and environmental protection are mutually reinforcing components. The Parties further recognise that the purpose of this Chapter is to strengthen the trade relations and cooperation between the Parties in ways that promote sustainable development, and is not to harmonise the environment or labour standards of the Parties.