Each Party shall provide that its civil judicial authorities may grant an injunction against an OSP, ordering the OSP to take action to block access to infringing content, in cases where the services of the OSP are used by a third party to infringe copyright or related rights and trade marks.
Article 13.105. Domain Registries
1. Each Party shall encourage their domain registry to provide the use of measures that appropriately, timely, and effectively suspend domains used in the infringement of copyright or related rights and trade marks on their respective ccTLDs. (36)
2. This requirement may be satisfied by measures facilitating cooperative arrangements between the relevant domain registry, law enforcement and industry groups.
Subsection 6. Enforcement Practices
Article 13.106. Publication of Judicial Decisions
Each Party shall provide that final judicial decisions and administrative rulings of general application pertaining to the enforcement of intellectual property rights are made available (37) preferably in writing and state any relevant findings of fact and the reasoning or the legal basis on which the decisions and rulings are based.
Article 13.107. Access to Justice
1. The Parties recognise the importance of ensuring that all right holders have access to justice and recognise that SMEs (38) and individual right holders can disproportionately face barriers to their international trade due to unwarranted costs and delays in enforcing their intellectual property rights.
2. Each Party shall endeavour to encourage the use of alternate dispute resolution (“ADR”) mechanisms for disputes relating to intellectual property.
3. Each Party shall endeavour to further facilitate access to justice for all right holders. Those measures may include the provision of specialist intellectual property judicial authorities.
Article 13.108. Voluntary Stakeholder Initiatives
Each Party shall endeavour to promote cooperative efforts within the business community to effectively address intellectual property infringement, including in the digital environment, while preserving legitimate competition. This may include encouraging the establishment of public or private advisory groups to address issues of at least trade mark counterfeiting and copyright piracy.
Article 13.109. Public Awareness
Each Party shall, as appropriate, use reasonable efforts to enhance public awareness of the importance of respecting intellectual property rights and the detrimental effect of the infringement of intellectual property rights. This may include cooperation with the business community, civil society organisations, and right holder representatives.
Article 13.110. Specialised Expertise and Domestic Coordination
1. Each Party shall encourage the development of specialised expertise within its competent authorities responsible for the enforcement of intellectual property rights.
For the purpose of enforcing intellectual property rights, each Party recognises that effective coordination is required between their competent authorities. (39)
Article 13.111. Environmental Considerations
Without prejudice to the obligations arising from Article 13.80 (Corrective Measures), Article 13.98 (Seizure) and Article 13.99 (Forfeiture and Destruction of Goods), the Parties recognise the importance of having due regard to environmental matters in their enforcement practices relating to the destruction and disposal of goods that have been found to infringe intellectual property rights.
Chapter 14. INNOVATION
Article 14.1. Definitions
For the purposes of this Chapter:
“innovation” means the development or implementation of a new or improved product (1) or process, or combination thereof.
Article 14.2. Objective
The objective of this Chapter is to support innovative processes and trade in innovative products, as well as economic growth between the Parties, by further enhancing collaboration on innovation, including through cooperation on the interaction between innovation and trade policy, consistent with the laws, regulations, and policies of each Party.
Article 14.3. General Provisions
1. The Parties recognise the important role that innovation plays in their economies, including by stimulating competitiveness, increasing productivity, encouraging investment and promoting international trade.
2. The Parties confirm that their intention for this Chapter is to support innovation in their respective economies, including by fostering opportunities in innovation-intensive industries and encouraging trade in innovative products.
3. The Parties acknowledge that innovation may interact with a wide range of trade policy areas and will require appropriate coordination to ensure that economic growth opportunity is maximised.
4. The Parties acknowledge the existing collaboration on innovation between their governments, industries, universities, publicly funded research agencies and other non-governmental bodies, and confirm their commitment to further strengthening this collaboration through initiatives aimed at research and development, capacity building, technical cooperation, and the voluntary transfer and development of technology on mutually agreed fair and reasonable terms.
Article 14.4. The Innovation Working Group
1. The Parties hereby establish an Innovation Working Group, for the purposes of fostering innovation in their territories and furthering the objective of this Chapter. The Parties shall, through the Innovation Working Group, mutually identify areas of cooperation, which should be inclusive and tech-agnostic, to promote and facilitate innovation across diverse sectors and technologies. Examples of areas of cooperation may include:
(a) the commercial application of new technologies, including in economic sectors such as agriculture, health, education, advanced manufacturing, smart mobility and transportation, life sciences, aerospace, and clean energy;
(b) emerging and transformative technologies, including clean and low emissions technology, artificial intelligence, distributed ledger technologies, quantum technologies, immersive technologies, sensing technologies, digital twins, the Internet of Things, and robotics and autonomous systems;
(c) global value chain matters including supply chain resilience and the increased integration of goods and services;
(d) global innovation networks and collaboration among higher education and research institutes; and
(e) regulatory approaches that facilitate innovation, bilateral cooperation to identify and respond to future technologies and experimental testing of technologies across borders, including consideration of risk-based approaches, industry-led standards, and risk management best practices.
2. While undertaking cooperation pursuant to paragraph 1, the Innovation Working Group shall consider the potential impact of that cooperation on:
(a) gender equality and women’s participation in innovation;
(b) enabling SMEs to engage in, and utilise, the benefits of innovation;
(c) facilitating trade in innovative products which support ambitions to tackle climate change; and
(d) the social and economic benefits created by innovation.
3. The Innovation Working Group shall, in order to further the objective of this Chapter:
(a) provide a forum for sharing best practice principles, and exploring opportunities in innovation policy across government, academia, research organisations, industry and business, including the start-up
(b) ecosystem, for example through participation in start-up exchange missions and platforms to allow nascent entities and start-ups of the Parties to engage with key customers and partners across geographies;
(c) review existing relationships between the Parties for opportunities to strengthen bilateral engagement on the impacts of innovation on trade; and
(d) consider any other matter as the Parties may decide.
4. The Innovation Working Group may, in respect of any matter referred to under paragraph 1:
(a) refer a matter, or make an appropriate recommendation, to the Joint Committee;
(b) develop and facilitate a cooperative activity between the Parties; and
(c) consult, engage with, or seek advice from, a non-governmental expert or stakeholder.
5. The Innovation Working Group may engage and cooperate with any other body established under this Agreement and shall ensure that its work does not duplicate the work of any other body established under this Agreement. The Innovation Working Group shall consider any matter that may be referred to it by the Joint Committee.
6. The Innovation Working Group shall be composed of government representatives of the Parties and shall be co-chaired by a representative of the government of each Party. The Innovation Working Group shall take its decisions and carry out its work by mutual agreement between the Parties and establish its own rules of procedure.
7. The Innovation Working Group shall meet at least once annually in the three years following the entry into force of this Agreement, and thereafter as agreed between the Parties. A meeting of the Innovation Working Group may be held by virtual means if the Parties agree. In the period between meetings, the Innovation Working Group may carry out its work through any means the Parties consider appropriate. The Innovation Working Group shall, subject to the protection of confidential information, publish a mutually agreed summary of discussions following each meeting, unless otherwise agreed by the Parties.
Article 14.5. Reporting
The Innovation Working Group shall decide on a work plan and may, as appropriate, submit a report to the Joint Committee on its activities. In any event, the Innovation Working Group shall submit a report to the Joint Committee within five years following its first meeting after entry into force of this Agreement.
Article 14.6. Relationship with other Chapters
Nothing in this Chapter shall be construed to impose any obligation or commitment with respect to other Chapters of this Agreement.
Article 14.7. Contact Point
Each Party shall, within 30 days of the entry into force of this Agreement, designate a contact point to facilitate the implementation of this Chapter and notify the other Party of the contact details. A Party shall promptly notify the other Party of any change to those contact details.
Article 14.8. Non-Application of Dispute Settlement
Neither Party shall have recourse to dispute settlement under Chapter 29 (Dispute Settlement) for any matter arising under this Chapter.
Chapter 15. GOVERNMENT PROCUREMENT
Article 15.1. Definitions
For the purposes of this Chapter:
“commercial goods or services” means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non- governmental buyers for non-governmental purposes;
“construction service” means a service that has as its objective the realisation by whatever means of civil or building works, based on Division 51 of the United Nations Provisional Central Product Classification (CPC Prov);
“electronic auction” means an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re‑ranking of tenders;
“in writing” or “written” means any worded or numbered expression that can be read, reproduced and later communicated and may include electronically transmitted and stored information;
“limited tendering” means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
“measure” means any law, regulation, procedure, administrative guidance or practice, or any action of a procuring entity relating to a covered procurement;
“MII Order” means the India Public Procurement (Preference to Make in India), Order 2017, No. P-45021/2/2017-PP (BE-II), dated 16 September 2020;
“multi-use list” means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;
“notice of intended procurement” means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;
“offset” means any condition or undertaking that requires the use of domestic content, a domestic supplier, the licensing of technology, technology transfer, investment, counter-trade, or similar action to encourage local development or to improve a Party’s balance-of-payments accounts;
“open tendering” means a procurement method whereby all interested suppliers may submit a tender;
“procuring entity” means an entity listed in Annex 15A (Government Procurement Schedules);
“qualified supplier” means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
“selective tendering” means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
“services” includes construction services, unless otherwise provided in this Chapter;
“standard” means a document approved by a recognised body that provides for common and repeated use, rules, guidelines or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a good, service, process or production method;
“supplier” means a person or group of persons that provides or could provide goods or services;
“technical specification” means a tendering requirement that:
lays down the characteristics of goods or services to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service; and
“Working Group on Government Procurement” means the Working Group on Government Procurement as established under paragraph 1 of Article 15.21 (Working Group on Government Procurement).
Article 15.2. Scope
Application of Chapter
1. This Chapter shall apply to any measure regarding covered procurement.
2. For the purposes of this Chapter, “covered procurement” means government procurement:
(a) of goods, services, or any combination thereof as specified in each Party’s Schedule to Annex 15A (Government Procurement Schedules);
(b) by any contractual means, including: purchase; lease; and rental or hire purchase, with or without an option to buy;
(c) for which the value, as estimated in accordance with paragraphs 6 through 8, equals or exceeds the relevant threshold specified in a Party’s Schedule to Annex 15A (Government Procurement Schedules) at the time of publication of a notice in accordance with Article 15.6 (Notices); (1)
(d) by a procuring entity; and
(e) that is not otherwise excluded from coverage under this Agreement.
Activities Not Covered
3. Unless otherwise provided in a Party’s Schedule to Annex 15A (Government Procurement Schedules), this Chapter shall not apply to:
(a) the acquisition or rental of land, existing buildings, or other immovable property or the rights thereon;
(b) non-contractual agreements or any form of assistance that a Party provides, including cooperative agreements, grants, loans, equity infusions, guarantees, and fiscal incentives;
(c) the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated established financial service suppliers or services related to the sale, redemption, and distribution of public debt, including loans and government bonds, notes, and other securities;
(d) public employment contracts; or
(e) procurement conducted:
(i) for the specific purpose of providing international assistance including development aid;
(ii) under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project; or
(iii) under the particular procedure or condition of an international organisation, or funded by international grants, loans, or other assistance where the applicable procedure or condition would be inconsistent with this Chapter.
Schedules
4. Each Party shall specify the following information in its Schedule to Annex 15A (Government Procurement Schedules):
(a) in Section A, the central government entities whose procurement is covered by this Chapter;
(b) in Section B, the sub-central government entities whose procurement is covered by this Chapter;
(c) in Section C, all other entities whose procurement is covered by this Chapter;
(d) in Section D, the goods covered by this Chapter;
(e) in Section E, the services, other than construction services, covered by this Chapter;
(f) in Section F, the construction services covered by this Chapter;
(g) in Section G, any general notes;
(h) in Section H, the applicable threshold adjustment formula; and
(i) in Section I, the publication of information required under Article 15.5 (Information on the Procurement System).
Compliance
5. Where a procuring entity, in the context of covered procurement, requires persons not covered under a Party’s Schedule to Annex 15A (Government Procurement Schedules) to procure in accordance with particular requirements, Article 15.4 (General Principles) shall apply mutatis mutandis to such requirements.
Valuation
6. In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall:
(a) neither divide a procurement into separate procurements nor select or use a particular valuation method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Agreement; and
(b) include the estimated maximum total value of the procurement over its entire duration, whether awarded to one or more suppliers, taking into account all forms of remuneration, including:
(i) premiums, fees, commissions, and interest; and
(ii) where the procurement provides for the possibility of options, the total value of those options.
7. Where an individual requirement for a procurement results in the award of more than one contract, or in the award of contracts in separate parts (hereinafter referred to as “recurring contracts”), the calculation of the estimated maximum total value shall be based on:
(a) the value of recurring contracts of the same type of good or service awarded during the preceding 12 months or the procuring entity’s preceding fiscal year, adjusted, where possible, to take into account anticipated changes in the quantity or value of the good or service being procured over the following 12 months; or
(b) the estimated value of recurring contracts of the same type of good or service to be awarded during the 12 months following the initial contract award or the procuring entity’s fiscal year.
8. In the case of procurement by lease, rental or hire purchase of goods or services, or procurement for which a total price is not specified, the basis for valuation shall be:
(a) in the case of a fixed-term contract:
(i) where the term of the contract is 12 months or less, the total estimated maximum value for its duration; or
(ii) where the term of the contract exceeds 12 months, the total estimated maximum value, including any estimated residual value;
(b) where the contract is for an indefinite period, the estimated monthly instalment multiplied by 48; and
(c) where it is not certain whether the contract is to be a fixed-term contract, the estimated monthly instalment multiplied by 48.
Article 15.3. General Exceptions
Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties where the same conditions prevail or a disguised restriction on international trade, nothing in this Chapter shall be construed to prevent a Party, including its procuring entities, 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 goods or services of persons with disabilities, philanthropic institutions, or prison labour.
Article 15.4. General Principles
Non-Discrimination
1. With respect to any measure regarding covered procurement, each Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of the other Party and to the suppliers of the other Party, treatment no less favourable than the treatment the Party, including its procuring entities, accords to domestic goods, services, and suppliers.
2. With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall not: