Article 7.9. Administration of Paperless Trade
Each Party shall endeavor:
(a) making trade administration documents available to the public in electronic form; and
(b) accept electronically submitted trade administration documents as the legal equivalent of the paper version of those documents.
Article 7.10. Principles on Access to and Use of the Internet for Electronic Commerce
Subject to applicable policies, laws and regulations, the Parties recognize the benefits of consumers in their territories having the ability to:
(a) access and use services and applications of the consumer's choice available on the Internet, subject to reasonable network capacity management by the operator;
(b) connect end-user devices of the consumer's choice to the Internet, provided that such devices do not harm the network, and
(c) access information about the network management practices of the consumer's Internet access service provider, so that consumers can make informed consumer choices.
Article 7.11. Cross-border Transfer of Information by Electronic Means
1. The Parties recognize that each Party may have its own regulatory requirements regarding the transfer of information by electronic means.
2. Each Party shall permit the cross-border transfer of information by electronic means, including personal information, where such activity is for the conduct of the business of a person of a Party.
3. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 to pursue a legitimate public policy objective, provided that the measure is not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.
Article 7.12. Location of Computer Facilities
1. The Parties recognize that each Party may have its own regulatory requirements relating to the use of computer facilities, including requirements that seek to ensure the security and confidentiality of communications.
2. A Party may not require a person of the other Party to use or locate computer facilities in the territory of that Party as a condition of doing business in that territory.
3. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 to pursue a legitimate public policy objective, provided that the measure is not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.
4. The Parties undertake to exchange best practices, experiences and existing regulatory frameworks with respect to IT facilities.
Article 7.13. Unsolicited Electronic Commercial Communications
1. Each Party shall adopt or maintain measures regarding unsolicited commercial electronic communications that:
(a) require providers of unsolicited commercial electronic communications to facilitate the ability of recipients to prevent the continued receipt of such messages; or
(b) require the consent of recipients, as specified in accordance with the legal system of each Party, to receive electronic commercial communications.
2. Each Party shall provide mechanisms against providers of unsolicited commercial electronic communications that do not comply with the measures adopted or maintained pursuant to paragraph 1.
3. The Parties shall seek to cooperate in appropriate cases of mutual interest relating to the regulation of unsolicited commercial electronic messages.
Article 7.14. Data Innovation
1. The Parties recognise that cross-border data flows and data sharing enable data- driven innovation. The Parties further recognise that innovation can be enhanced within the context of regulatory data sandboxes where data, including personal information (6), is shared between companies in accordance with the Parties' respective laws and regulations.
2. Parties also recognize that data-sharing mechanisms, such as trusted data-sharing frameworks and open licensing agreements, facilitate data sharing and promote the use of data in the digital environment for:
(a) promote innovation and creativity;
(b) facilitate the dissemination of information, knowledge, technology, culture and the arts, and
(c) promoting competition and open and efficient markets.
3. The Parties shall seek to collaborate on data sharing projects and mechanisms, and on proof of concepts for new uses of data, including data sandboxes, to promote data- driven innovation.
Article 7.15. Open Government Data
1. The Parties recognize that facilitating public access to and use of government information can foster economic and social development, competitiveness and innovation.
2. To the extent that a Party makes government information, including data, publicly available, it shall endeavour to ensure that the information is made available as open data.
3. The Parties shall seek to cooperate to identify ways in which Parties can expand access to and use of open data, with a view to improving and generating business opportunities.
4. Cooperation under this Article may include activities such as:
(a) jointly identify sectors where open data sets, particularly those of global value, can be used to facilitate technology transfer, talent development and innovation, among others;
(b) encourage the development of new products and services based on open data sets, and
(c) encourage the use and develop open data licensing models in the form of standardized public licenses available online, which will allow anyone to freely access, use, modify and share open data for any purpose permitted by the Parties' respective laws and regulations, and which are based on open data formats.
Article 7.16. Source Code
1. No Party shall require the transfer of, or access to, the source code of software owned by a person of the other Party as a condition for the importation, distribution, sale or use of such software, or products containing such software, in its territory.
2. For the purposes of this Article, software subject to paragraph 1 is limited to software or products containing such software, and does not include software used for critical infrastructure.
3. Nothing in this Article shall preclude:
(a) the inclusion or implementation of terms and conditions relating to the provision of source code in commercially negotiated contracts, or
(b) a Party may require modification of the source code of the computer program necessary to bring that computer program into compliance with laws or regulations that are not inconsistent with this Agreement.
4. This Article shall not be construed to affect requirements relating to patent applications or granted patents, including any orders made by a judicial authority in connection with patent disputes subject to safeguards against unauthorized disclosure under the law or practice of a Party.
Article 7.17. Information and Communication Technology Products Using Cryptography
1. This section shall apply to information and communications technology (ICT) products (7) that use cryptography.
2. With respect to a product that uses cryptography and that is designed for commercial applications, no Party shall impose or maintain a technical regulation or conformity assessment procedure that requires a manufacturer or supplier of the product as a condition of manufacture, sale, distribution, importation or use of the product:
(a) transfers or provides access to a particular technology, production process or other information, for example, a private key or other secret parameter, algorithmic specification or other design detail, that is proprietary to the manufacturer or supplier and that relates to cryptography in the product, to the Party or to a person in the territory of the Party;
(b) associates with a person in its territory, or
(c) uses or incorporates a particular cryptographic algorithm or cipher, except where the manufacture, sale, distribution, importation or use of the product is by or for the government of that Party.
3. Paragraph 2 shall not apply to:
(a) requirements that a Party adopts or maintains relating to access to networks owned or controlled by that Party's government, including those of central banks, or
(b) measures taken by a Party pursuant to supervisory, investigative or examination authority relating to financial institutions or markets.
4. For greater certainty, this Article shall not be construed to prevent a Party's law enforcement authorities from requiring service providers using encryption that they control to provide, in accordance with that Party's legal procedures, unencrypted communications.
Article 7.18. Cooperation
1. Recognizing the global nature of electronic commerce, the Parties shall endeavour to:
(a) share information and experiences on laws, regulations, and programs in the sphere of electronic commerce, including, among others, those related to personal information protection, consumer protection, security in electronic communications, authentication, intellectual property rights, and e- government;
(b) exchange information and share views on consumer access to products and services offered online between the Parties;
(c) actively participate in regional and multilateral fora to promote the development of e-commerce;
(d) encourage the development by the private sector of self-regulatory methods that promote electronic commerce, including codes of conduct, model contracts, trust seals, guidelines and compliance mechanisms;
(e) actively participate in regional and international forums to promote cross- border electronic signatures, and
(f) promote technical assistance and knowledge transfer in best practices in information and communication technologies.
2. The Parties should exchange information and experiences concerning their legislation on the protection of personal information, in particular on commercial relations, their development and their treatment by the supervisory authority.
Article 7.19. Cooperation on Cybersecurity Matters
1. The Parties recognize the importance of cybersecurity awareness and education, as well as of collaborating in the exchange of knowledge, capital and expertise, and in the training and specialization of cybersecurity professionals.
2. The Parties recognize the importance of:
(a) develop the capacities of their national entities responsible for cybersecurity and cyber security incident response;
(b) use existing collaborative mechanisms to cooperate in identifying, mitigating and managing malicious practices or the dissemination of malicious code affecting the Parties' electronic networks, users' personal information or protection against unauthorized access to private information or communications;
(c) exchanging best practices on critical infrastructure resilience, cyber defence and on measures to prevent identity theft in e-commerce, and
(d) share indicators of compromise on incidents in strategic areas, maintaining the confidentiality of those involved, and with the purpose of preventing or limiting the spread of incidents to other cyber ecosystems.
3. The Parties recognize that a safe and secure online environment strengthens the digital economy.
4. The Parties recognize the importance of adopting a multi-stakeholder approach to identifying online safety issues.
5. The Parties shall seek to cooperate to advance collaborative solutions to global issues affecting online safety.
Article 7.20. Cooperation on MSMEs
With a view to more robust cooperation between the Parties to enhance trade and investment opportunities for MSMEs in the digital economy, the Parties:
(a) continue cooperation with other Parties to exchange information and best practices on the promotion of digital tools and technologies to improve MSMEs' access to capital and credit, MSMEs' participation in public procurement opportunities, and other areas that could help MSMEs adapt to the digital economy, and
(b) encourage the participation of MSMEs of the Parties in platforms that could help MSMEs connect with international suppliers, buyers and other potential trading partners.
Article 7.21. MSME Digital Dialogue
1. The Parties shall convene an MSME Digital Dialogue (hereinafter referred to as "the Dialogue"). The Dialogue may include the private sector, non-governmental organizations, academic experts and other interested parties from each Party. The Parties may collaborate with other interested persons to convene the Dialogue.
2. The Dialogue will promote the benefits of this Agreement for MSMEs of the Parties. The Dialogue shall also promote relevant collaborative efforts and initiatives between the Parties arising from this Agreement.
3. To encourage the inclusive participation of Parties' stakeholders and increase the impact of outreach, Parties may consider organizing the Dialogue on the margins of, or as part of, existing platforms and meetings in which Parties participate or are members such as the WTO or LAIA, and optionally in platforms where one Party is a member and can invite the other.
4. The Parties may consider using relevant technical or scientific inputs, or other information arising from the Dialogue for the implementation and further modernization efforts of this Agreement for the benefit of MSMEs of the Parties.
Article 7.22. Digital Inclusion
1. The Parties recognize the importance of digital inclusion to ensure that all people and businesses can participate in, contribute to and benefit from the digital economy.
2. Parties recognize the importance of expanding and facilitating opportunities in the digital economy by removing barriers. This may include improving cultural and people-to-people links, and improving access for women and vulnerable groups.
3. To this end, the Parties shall cooperate on issues related to digital inclusion, including the participation of women, rural populations, vulnerable socio-economic groups in the digital economy. Cooperation may include:
(a) exchange experiences and best practices, including the exchange of experts, with regard to e-inclusion;
(b) promote inclusive and sustainable economic growth, to help ensure that the benefits of the digital economy are more widely shared;
(c) address barriers to accessing digital economy opportunities;
(d) develop programmes to promote the participation of all segments of the population in the digital economy;
(e) sharing methods and procedures for the collection of disaggregated data (including data disaggregated by age and sex), the use of indicators and the analysis of statistics related to participation in the digital economy, and
(f) other areas agreed by the Parties.
4. Cooperative activities related to e-inclusion may be carried out through the coordination, as appropriate, of the Parties' respective agencies, businesses, trade unions, civil society, academic institutions and non-governmental organizations, among others.
Article 7.23. Relationship to other Chapters
In the event of any inconsistency between this Chapter and another Chapter of this Agreement, the other Chapter shall prevail to the extent of the inconsistency.
Chapter 8. COMPETITION POLICY
Article 8.1. Definitions
For purposes of this Chapter:
enforcement proceedings means administrative proceedings or judicial proceedings following an investigation into an alleged violation of competition laws.
Article 8.2. Objectives
Recognizing that anti-competitive practices have the potential to distort the proper functioning of markets and undermine the benefits of trade liberalization, the Parties shall seek to adopt appropriate measures to prohibit such conduct, implement policies promoting competition and cooperate on matters covered by this Chapter to help secure the benefits of this Agreement.
Article 8.3. Competition and Anti-Competitive Practices Law and Authorities
1. Each Party shall adopt or maintain competition laws that prohibit anti-competitive practices, with the objective of promoting competition to promote economic efficiency and consumer welfare, and shall take appropriate action with respect to such practices.
2. Each Party shall ensure that the measures it adopts or maintains to prohibit anticompetitive practices, and the enforcement actions it takes pursuant to those measures, are consistent with the principles of transparency, non-discrimination and due process.
3. Each Party shall endeavour to apply its competition laws to all commercial activities in its territory. This does not preclude a Party from applying its competition laws in its territory to commercial activities conducted outside its borders that have anticompetitive effects within its jurisdiction.
4. Each Party may provide for certain exemptions and exclusions from the application of its competition laws, provided that such exemptions and exclusions are transparent and based on public policy or public interest grounds.
5. Each Party shall maintain an authority or authorities responsible for the enforcement of its competition laws (hereinafter referred to as "competition authorities").
6. Each Party shall ensure that its competition authority or authorities apply its competition laws in accordance with the objectives set out in this Chapter, and shall not discriminate on the basis of nationality.
7. Each Party shall ensure the independent decision-making of its competition authority or authorities with respect to the application of its competition laws.
Article 8.4. Procedural Fairness In the Application of the Competition Act
1. Each Party shall adopt or maintain written procedures pursuant to which investigations under its competition laws shall be conducted. If such investigations are not time-bound, the competition authorities of each Party shall endeavour to conduct their investigations within a reasonable period of time.
2. Each Party shall ensure that, before imposing a sanction or remedial measures against a person for violating its competition laws, that person is given information about the competition concerns of the competition authority, including identification of the alleged violations of specific competition laws and the associated potential maximum sanctions, if not publicly available, and a reasonable opportunity to be represented by counsel.
3. Each Party shall ensure that, before imposing a sanction or remedial measures against a person for violating its competition laws, that person is given a reasonable opportunity to be heard and to present evidence, except that provision shall be made for the person to be heard and to present evidence within a reasonable time after a sanction or interim remedial measure is imposed.
4. Each Party shall provide a person who is subject to the imposition of a sanction or remedial measure for violation of its competition laws with an opportunity to seek review of the sanction or remedial measure in a court or other independent tribunal established under that Party's laws.
5. Each Party shall adopt or maintain rules of procedure and evidence that apply to enforcement proceedings regarding alleged violations of its competition laws, and to the determination of sanctions and remedies thereunder. These rules shall provide for procedures for the presentation of evidence, including expert evidence if applicable, and shall apply equally to all persons in the proceeding.
6. If a Party's competition authority alleges a violation of its competition laws, that authority shall be responsible for establishing the legal and factual basis for the alleged violation in an established procedure.
7. Each Party shall provide for the protection of confidential information obtained by its competition authorities during the investigation process. If the competition authority of a Party uses or intends to use such information in an established proceeding, that Party shall, if permissible under its legal system and as appropriate, allow the person subject to investigation timely access to the information necessary to prepare an adequate defence to the competition authority's allegations.
8. Each Party shall ensure that its competition authorities afford the person under investigation for the alleged violation of its competition laws a reasonable opportunity to consult with such competition authorities on legal, factual or procedural matters arising in the course of the investigation.
Article 8.5. Cooperation
1. The Parties recognise the importance of cooperation and coordination between their respective competition authorities to promote the effective enforcement of competition laws between the Parties.
2. The Parties agree to cooperate, according to their possibilities and as appropriate, on competition policy strategies, including through exchanges of joint actions.
3. The Parties agree to cooperate in a manner consistent with their respective legal systems and interests, including through consultations and exchange of information, taking into account available resources.
4. The competition authorities of a Party may consider entering into an arrangement or cooperation agreement with the competition authorities of the other Party that sets out mutually agreed terms of cooperation.
Article 8.6. Technical Cooperation
Recognizing that the Parties may benefit from sharing their diverse experiences in developing, promoting, implementing and enforcing competition laws, the Parties will consider undertaking mutually agreed technical cooperation activities, subject to available resources.
Article 8.7. Transparency
1. The Parties recognize the value of developing their competition enforcement policies in a transparent manner.
2. Each Party shall ensure that its competition laws and public guidelines are publicly available, including on an official website. This excludes internal procedures and communications, unless disclosure is required by the legal system of the Parties.
3. Upon request of a Party, the other Party shall make available to the other Party public information relating to:
(a) its competition law enforcement policies and practices, and
(b) exemptions and exclusions from their competition laws, provided that the request specifies the particular good or service and market involved, and includes information explaining how the exemption or exclusion may hinder trade or investment between the Parties.
4. Each Party shall ensure that the final decision finding a violation of its competition laws is made available in writing and sets forth, in non-criminal matters, the findings of fact and reasoning, including the legal and, if applicable, economic analysis, on which the decision is based.
5. Each Party shall further ensure that the final decision referred to in paragraph 4 and any order implementing that decision are publicly available, or if publication is not practicable, are otherwise publicly available, in a manner that allows interested persons and the other Party to become aware of them. Each Party shall ensure that the version of the decision or order that is published, or publicly available, does not contain confidential information, in a manner consistent with its respective legal system.
Article 8.8. Consultations
At the request of a Party, the Parties shall consult with a view to promoting understanding between them or addressing specific matters arising under this Chapter. Such request shall indicate, if relevant, how the matter affects trade or investment between the Parties. The Party to which the request is addressed shall give full and sympathetic consideration to the concerns of the requesting Party.
Article 8.9. Non-Application of Dispute Resolution
Neither Party may have recourse to the dispute settlement mechanism provided for in Chapter 17 (Dispute Settlement) with respect to any matter arising under this Chapter.
Chapter 9. ENTREPRENEURS AND MICRO, SMALL AND MEDIUM-SIZED ENTERPRISES
Article 9.1. General Provisions
1. The Parties recognize that entrepreneurs and MSMEs are a fundamental component for economic development, job creation, value addition and innovation.
2. The Parties recognise that non-tariff barriers represent a competitiveness challenge for entrepreneurs and MSMEs. They also recognise that, in addition to the provisions of this Chapter, there are other provisions in this Agreement that seek to enhance the cooperation of the Parties on issues related to entrepreneurs and MSMEs or that may otherwise be particularly beneficial to entrepreneurs and MSMEs. The Parties recognize the importance of fostering, designing and implementing public policies aimed at promoting productivity and increasing the competitiveness of entrepreneurs and MSMEs of both Parties.
3. The Parties recognize the importance of improving the access of entrepreneurs and MSMEs of each Party to existing business opportunities within the territory of the other Party, in order to ensure and expand their participation in the national and international economy and to contribute to fostering sustainable economic development.
4. The Parties recognize the importance of dialogue, in order to assess the promotion and improvement of the participation of entrepreneurs and MSMEs in trade, to support their growth and development and to take advantage of the opportunities arising from this Agreement.
5. Likewise, the Parties affirm their commitment to jointly identify and develop projects to strengthen the competitiveness of entrepreneurs and MSMEs and to exchange best practices related to them in their legal systems and public policies.
Article 9.2. Information Sharing and Transparency
1. Each Party shall promote domestically, through such channels as it deems appropriate, the public dissemination of its laws, regulations, public policies and programs relating to the development of entrepreneurs and MSMEs.