(d) increasing access of MSMEs to information on technology upgrading programs, financial support, incentive programs, and incentives such as tax breaks.
125
Chapter CHAPTER VII INTELLECTUAL PROPERTY Article 7.1 Objectives and Principles
1. The Parties recognize the importance of protection and enforcement of intellectual property rights in order to incentivize research, development and creative activity which will promote economic and social development, as well as dissemination of knowledge and technology, particularly in the new digital economy, technological innovation and trade.
2. The Parties also recognize the necessity of balance between the legitimate interest of right owners and the public at large.
3. The Parties reiterate and reaffirm the effectiveness of the Chapter 7 of Agreement on Economic and Trade Cooperation between the Peopleâs Republic of China, of the one part, and the Eurasian Economic Union and its Member States, of the other Part (hereinafter refers to China-EAEU Agreement) signed on May 18th, 2018 in Astana, Kazakhstan.
Article 7.2. Definitions for the Purposes of this Chapter:
âintellectual propertyâ refers to copyright and related rights, trade marks, geographical indications, industrial designs, patents (inventions, utility models), layout designs (topographies) of integrated circuits, and plant varieties as defined in the China-EAEU Agreement.
Article 7.3. General Provisions
1. Each Party shall establish and maintain transparent intellectual property rights regimes and systems that:
(a) provide certainty over the protection and enforcement of intellectual property rights;
(b) minimise compliance costs for business; and
126
(c) facilitate international trade through the dissemination of ideas, technology and creative works.
2. Each Party reaffirms its commitment to the China-EAEU Agreement and any other multilateral agreement relating to intellectual property to which both parties are party.
3. For the purposes of this Chapter, the Chapter 7 of the China- EAEU Agreement is incorporated into and made part of this Agreement, mutatis mutandis.
Article 7.4. Contact Points
Each Party shall designate a contact point or points to facilitate communications between the Parties on any matter covered by this Chapter, and provide details of such contact points to the other Party. The Parties shall notify each other promptly of any amendments to the details of their contact points.
Article 7.5. Notification and Exchange of Information 1. at the Request of a Party the Parties Shall Inform Each other of: (a) Legislation Status and Developments In Relation to Intellectual Property;
(b) developments in intellectual property policy in their respective administrations including on appropriate initiatives to promote awareness of intellectual property rights and systems;
(c) changes to, and developments in, the implementation of intellectual property systems, aimed at promoting effective and efficient registration or grant of intellectual property rights; and
(d) enhancement of intellectual property rights enforcement and related initiatives in multilateral and regional fora.
127
2. Any information or notification provided under this Article shall be conveyed through the contact points referred to in Article 7.4 (Contact Points).
Article 7.6. Cooperation and Capacity Building
1. The Parties agree to cooperate with a view to increasing capacity in the development of intellectual property policy and eliminating trade in goods infringing intellectual property rights, subject to their respective laws, rules, regulations, directives and policies.
2. Each Party shall:
(a) encourage and facilitate the development of contacts and cooperation between their respective government agencies, educational institutions and other organizations with an interest in the field of intellectual property rights; and
(b) on mutually acceptable terms and subject to available funds, cooperate on:
(i) appropriate initiatives to promote awareness of intellectual property rights and systems;
(ii) educational and information dissemination projects on the use of intellectual property as a research and innovation tool; and
(iii) training and specialization courses for public institutions on intellectual property rights.
Article 7.7. Consultation
1. A Party may at any time request consultations with the other Party, with a view to seeking a timely and mutually satisfactory resolution of any intellectual property issue within the scope of this Chapter.
2. Such consultation shall be conducted through the Partiesâ designated contact points, and shall commence within 60 days of the receipt of the request for consultation, unless the Parties mutually
128
determine otherwise. Each Party shall ensure its contact point is able to coordinate and facilitate a response on the issue under consideration.
129
Chapter CHAPTER VIII COMPETITION Article 8.1 Definitions for the Purposes of this Chapter:
âanticompetitive business conductâ means business conduct or actions that adversely affect competition in the territory of a Party, such as:
(a) agreements between enterprises, decisions by associations of enterprises and concerted practices, which have as their object or effect the prevention, restriction or distortion of competition in the territory of either Party as a whole or ina substantial part thereof:
(b) any abuse by one or more enterprises of a dominant position in the territory of either Party as a whole or in a substantial part thereof; or
(c) concentrations between enterprises, which significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position in the territory of either Party as a whole or in a substantial part thereof;
(d) Acts of unfair competition;
âcompetition lawsâ means:
(a) for the Peopleâs Republic of China, the Antimonopoly Law, Anti-unfair Competition Law and its implementing regulations and amendments; and
(b) for the Republic of Belarus, the Law of the Republic of Belarus dated 12 December 2013 No. 942 âOn Counteraction to Monopolistic Activities and Promotion of Competitionâ and its bylaws and amendments to it.
130
Article 8.2. Objectives
Each Party understands that proscribing anticompetitive business conduct, implementing competition policies and cooperating on competition issues contribute to preventing the benefits of trade and investment liberalization from being undermined and to promoting economic efficiency and consumer welfare.
Article 8.3. Competition Laws and Authorities
1. Each Party shall maintain or adopt competition laws that promote and protect the competitive process in its market by proscribing anticompetitive business practices.
2. Each Party shall maintain an authority or authorities responsible for the enforcement of its national competition laws.
Article 8.4. Principles In Law Enforcement
1. Each Party shall be consistent with the principles of transparency, non-discrimination, and procedural fairness in the competition law enforcement.
2. Each Party shall treat persons who are not persons of the Party no less favorably than persons of the Party in like circumstances in the competition law enforcement.
3. Each Party shall ensure that before it imposes a sanction or remedy against a person for violating its national competition laws, it affords that person a reasonable opportunity to present opinion or evidence in its defense.
4. Each party shall provide a person that is subject to the imposition of a sanction or remedy for violation of its national competition laws with the opportunity to seek review of the sanction or remedy under that partyâs laws.
131
Article 8.5. Transparency
1. Each Party shall make public its competition laws and regulations, including procedural rules for the investigation.
2. Each Party shall ensure that a final administrative decision finding a violation of its national competition laws are in writing and sets out relevant findings of fact and legal basis on which the decision is based.
3. Each Party shall make public a final decision or order implementing the decision establishing a violation of its national competition law in accordance with its national competition laws and regulations. Each Party shall ensure that the version of the decision or order that is made available to the public does not include business confidential information that is protected from public disclosure by its national law.
Article 8.6. Cooperation In Law Enforcement
1. The Parties recognize the importance of cooperation and coordination in competition field, to promote effective competition law enforcement in the free trade area. Accordingly, Each Party shall cooperate through notification, consultation, exchange of information, and technical cooperation.
2. The Parties agree to cooperate in a manner compatible with their respective laws, regulations and important interests, and within their reasonably available resource.
Article 8.7. Notification
1. Each Party, through its competition authority or authorities, shall notify the other Party of an enforcement activity if it considers that such enforcement activity may substantially affect the other Party's important interests.
2. Provided that it is not contrary to the Partiesâ competition laws and does not affect any investigation being carried out, the Parties
132
shall endeavor to notify at an early stage and in a detailed manner which is enough to permit an evaluation in the light of the interests of the other Party.
Article 8.8. Consultation
In order to foster understanding between the Parties, or to address specific matters that arise under this Chapter, on request of the other Party, a Party shall enter into consultations with the requesting Party. In its request, the requesting Party shall indicate, if relevant, how the matter affects trade or investment between the Parties. The Party addressed shall accord full and sympathetic consideration to the concerns of the requesting Party.
Article 8.9. Exchange of Information
1. Each Party shall endeavor to, upon request of the other party, provide information to facilitate effective enforcement of their respective competition laws, provided that it does not affect any ongoing investigation and is compatible with the laws and regulations governing the competition authorities possessing the information.
2. Each Party shall maintain the confidentiality of any information provided as confidential by the competition authority of the other Party and shall not disclose such information to any entity that is not authorized by the Party providing information.
Article 8.10. Technical Cooperation
The Parties may promote technical cooperation, including exchange of experiences, capacity building through training programs, workshops and research collaborations for the purpose of enhancing each Partyâs capacity related to competition policy and law enforcement.
Article 8.11. Independence of Competition Law Enforcement
133
This Chapter should not intervene with the independence of each Party in enforcing its respective competition laws.
Article 8.12. Dispute Settlement
Neither Party shall have recourse to dispute settlement under this Agreement for any matters arising under this Chapter.
134
Chapter CHAPTER IX DISPUTE SETTLEMENT Article 9.1 Scope and Coverage*®
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 interpretation, application and implementation of this Agreement, when a Party considers that:
(a) a measure of the other Party is inconsistent with its obligations under this Agreement; or
(b) the other Party has otherwise failed to carry out its obligations under this Agreement.
Article 9.2. Cooperation
The Parties shall at all times endeavor to agree on the interpretation, application and implementation of this Agreement, and shall make every attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect its operation, so as to avoid and settle disputes between the Parties.
Article 9.3. Choice of Forum
1. Where a dispute arises under this Agreement and under any other agreement to which both Parties are party, the complaining Party may recourse to dispute settlement procedures available under any of such agreements to settle the dispute.
2. Once the complaining Party has requested establishment of, or otherwise referred a matter to, a panel or tribunal under an agreement referred to in paragraph 1 of this Article, the forum selected shall be used to the exclusion of other fora.
56 For greater certainty, this Chapter does not apply to proposed measures and/or non- violation complaints (nullification or impairment of a benefit in cases where there is no violation of the Agreement's provisions).
135
Article 9.4. Consultations
1, Each Party may request consultations with the other party through the Joint Committee with respect to an existing measure or any matter described in Article 9.1 (Scope and Coverage).
2. The requesting Party shall deliver written notification to the Joint Committee, stating the reasons for the request, including the identification of the measure at issue and an indication of the legal basis for the complaint so as to provide sufficient information to enable an examination of the matter.
3. The Joint Committee shall convene within 30 days after the date of receipt of the request. In conducting the consultations, the Parties shall provide information to enable the examination of how the measure or any other matter might affect the interpretation, application and implementation of this Agreement, and give confidential treatment to the information exchanged during consultations.
4. The Joint Committee shall endeavor to resolve the dispute promptly by means of a decision and may make recommendations regarding the implementing measures to be taken by the Party concerned, and the timeframe for doing so.
5. Consultations under this Article shall be confidential and without prejudice to the rights of either Party in any further proceedings.
Article 9.5. Good Offices, Conciliation and Mediation
1. The Parties may at any time voluntarily agree to good offices, conciliation and mediation. These procedures may begin at any time and be terminated at any time.
2. Proceedings involving good offices, conciliation and mediation, and in particular positions taken by the Parties during those proceedings, shall be confidential and without prejudice to the rights of either Party in any further or other proceedings.
136
3. If the Parties agree, procedures for good offices, conciliation, or mediation may continue while the dispute proceeds for resolution before an arbitration panel established under Article 9.6 (Establishment of Arbitration Panels).
Article 9.6. Establishment of Arbitration Panels
1. Unless otherwise agreed, if a matter has not been resolved within 30 days after the Joint Committee has convened pursuant to paragraph 4 of Article 9.4 (Consultations), or 60 days after the date of receipt of the request for consultations by the Party complained against through the Joint Committee, whichever is earlier, the complaining Party may request in writing the establishment of an arbitration panel.
2. Pursuant to this Article, the complaining Party shall identify in the request for the establishment of an arbitration panel, the specific measure at issue, the legal basis of the complaint including any provision of this Agreement and any other relevant provisions it considers relevant, the factual basis for the complaint.
3. The complaining Party shall deliver the request to the other Party. An arbitration panel is established upon receipt of the request by the Party complained against.
Article 9.7. Functions of Arbitration Panels
1. An arbitration panel shall make an objective assessment of the matter before it, including an examination of the facts of the case and the applicability of an conformity with this Agreement.
2. Unless the Parties otherwise agree, within 20 days from the date of the establishment of the arbitration panel, the terms of reference of the arbitration panel shall be:
âTo examine, in the light of the relevant provisions of this
Agreement, the matter referred to in the request for the establishment
of an arbitration panel pursuant to Article 9.6 (Establishment of
Arbitration Panels), to make findings of law and fact together with 137
the reasons on whether a concerned measure is in conformity with the Agreement or not and to issue a written report for the resolution of the dispute. The arbitration panel shall make recommendations for the resolution of the dispute, if it concludes a concerned measure is inconsistent with this Agreement.â
3. Arbitration panels shall interpret the provisions of this Agreement in accordance with customary rules of interpretation of public international law.
4. The findings and recommendations of an arbitration panel cannot add to or diminish the rights and obligations of the Parties provided in this Agreement.
Article 9.8. Composition of Arbitration Panels 1. Arbitration Panels Shall Consist of Three Arbitrators.
2. Each Party shall appoint one arbitrator, within 15 days after the establishment of the arbitration panel. The Parties shall endeavor to agree on and appoint the third arbitrator, who shall be the chair of the arbitration panel, within 30 days after the establishment of the arbitration panel.
3. If any arbitrator has not been appointed, either Party may request the President of the International Court of Justice to designate the arbitrator within 30 days from the receipt of such request. If one or more arbitrators are designated pursuant to this paragraph, the President of the International Court of Justice shall be authorised to designate the chair of the arbitration panel.
The chair of arbitration panel shall: (a) not be a national of either Party;
(b) not have his or her usual place of residence in the territory of either Party;
(c) not be employed by either Party; and
138
(d) not have dealt with the dispute in any capacity.
4. All arbitrators shall:
(a) have specialized knowledge or experience in law, international trade, other matters relating to this Agreement, or the resolution of disputes deriving from international trade agreements;
(b) be chosen strictly on the basis of objectivity, reliability and sound judgment;
(c) be independent, serve in their individual capacities and not be employed by, affiliated with or take instructions from any Party; and
(d) comply with the Code of Conduct set out in the document WT/DSB/RC/1 of the WTO.
5. Where a Party considers that an arbitrator does not comply with the requirements of the Code of Conduct, the Parties shall consult with each other and, if so agreed, they shall replace that arbitrator in accordance with paragraph 2 of this Article.
6. If an arbitrator appointed under this Article becomes unable to participate in the proceeding or resigns, or is to be replaced according to paragraph 5 of this Article, a successor shall be appointed in the same manner and timeframe prescribed for the appointment of the original arbitrator. The successor shall have all the powers and duties of the original arbitrator. In such case, any time period applicable to the panel proceedings shall be suspended during the appointment of the successor.
Article 9.9. Proceedings of Arbitration Panels
1. A Party asserting that a measure of the other Party is inconsistent
with the provisions of this Agreement shall bear the burden of
establishing such inconsistency unless this Agreement provides
otherwise. A Party asserting that a measure is subject to an exception 139
under this Agreement shall bear the burden of establishing that the exception applies unless this Agreement provides otherwise.
2. The arbitration panel should consult with the Parties as appropriate and provide adequate opportunities for the development of a mutually satisfactory resolution.
3. The arbitration panel shall make every effort to make its decisions, including its report, by consensus but may also make its decisions, including its report, by majority vote if the arbitration panel is unable to reach consensus. Arbitrators may furnish separate opinions on matters not unanimously agreed. All opinions expressed in an arbitration panelâs report by individual arbitrators shall be anonymous.
4. Each Party shall bear the cost of its appointed arbitrator and its own expenses. The cost of the chair of an arbitration panel and other expenses associated with the conduct of the proceedings shall be borne by the Parties in equal shares.
Article 9.10. Suspension or Termination of Proceedings
1. The Parties may agree that the arbitration panel suspends its work at any time for a period not exceeding 12 months from the date of such agreement. In the event of such a suspension, the time-frames regarding the work of the arbitration panel shall be extended by the amount of time that the work was suspended. If in any case, the continuous suspension of the work of the arbitration panel exceeds 12 months, the authority for the establishment of the arbitration panel shall lapse unless the Parties agree otherwise>â.
2. The Parties may agree to terminate the proceedings of the arbitration panel by jointly notifying the chair of the arbitration panel at any time before the issuance of the final report to the Parties.
>â For greater certainty, the lapse of authority for the establishment of an arbitration panel does not preclude the complaining party to request at a later stage the establishment of another arbitration panel to examine the same subject matter.
140