7. Each Party shall adopt or maintain procedures that provide for:
(a) rapid interim measures to preserve the supplier’s opportunity to participate in the procurement. Such interim measures may result in suspension of the procurement process. The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether such measures should be applied. Just cause for not acting shall be provided in writing; and
(b) where a review body has determined that there has been a breach or a failure as referred to in paragraph 1, corrective action or compensation for the loss or damages suffered, which may be limited to either the costs for the preparation of the tender or the costs relating to the challenge, or both.
Article 15.20. Modifications and Rectifications of Annex
1. The Parties recognise the importance of maintaining accurate and up-to-date information in their Schedules to Annex 15A (Government Procurement Schedules).
2. A Party may modify or rectify its Schedule to Annex 15A (Government Procurement Schedules), pursuant to paragraphs 3 through 11.
Notification of Proposed Modification
3. A Party shall notify any proposed modification or rectification (collectively referred to as a “modification”) to its Schedule to Annex 15A in writing to the other Party.
4. The notification of proposed modification shall contain:
(a) for any proposed withdrawal of an entity from its Schedule to Annex 15A (Government Procurement Schedules) in exercise of its rights on the grounds that government control or influence over the procuring entity’s covered procurement has been effectively eliminated, evidence of that elimination; or
(b) for any other proposed modification, information as to the likely consequences of the change for the coverage provided for in this Chapter; and
(c) a proposal for any necessary compensatory adjustments pursuant to paragraph 5.
Compensatory Adjustments
5. Subject to paragraphs 6 and 7, a Party shall provide appropriate compensatory adjustments for a change in coverage, if necessary, to maintain a level of coverage comparable to the coverage that existed prior to the modification.
6. The Parties may agree another form of resolution as an alternative to compensatory adjustments.
7. A Party is not required to provide compensatory adjustments to the other Party if the proposed modification:
(a) covers a procuring entity over which the Party has effectively eliminated its control or influence in respect of covered procurement by that procuring entity; or
(b) is minor or of a purely formal nature, including a rectification as described in paragraph 8.
Rectifications
8. The following modifications to a Party’s Schedule to Annex 15A (Government Procurement Schedules) shall be considered a rectification, provided that they do not affect the coverage provided for in this Chapter:
(a) a change in the name of a procuring entity;
(b) a merger of two or more procuring entities listed within a Section of a Party’s Schedule to Annex 15A (Government Procurement Schedules);
(c) the separation of a procuring entity listed in a Party’s Schedule to Annex 15A (Government Procurement Schedules) into two or more procuring entities that are added to the procuring entities listed in the same Section of the Annex; and
(d) a change in a website reference.
Objection to Notification
9. If the other Party disputes that:
(a) a compensatory adjustment proposed under subparagraph 4(c) is adequate to maintain a level of coverage comparable to the coverage that existed prior to the modification;
(b) the proposed modification covers a procuring entity over which the Party has effectively eliminated its control or influence; or
(c) the proposed modification is a change provided for in paragraph 7(b), it shall notify the modifying Party of its objection in writing within 45 days of receipt of the notification of proposed modification referred to in paragraphs 3 and 4 or shall be deemed to have agreed to the proposed modification, and compensatory adjustments if provided, including for the purposes of Chapter 29 (Dispute Settlement).
10. Where a Party submits an objection pursuant to paragraph 9, it shall set out, as may apply, the reasons why it believes:
(a) the modification is not a change provided for in paragraph 7 and describe the effect of the proposed modification on the coverage provided for in the Chapter; and
(b) a compensatory adjustment proposed under subparagraph 4(c) is not adequate to maintain a level of coverage comparable to the coverage that existed prior to the modification.
Implementation of Modifications
11. The Joint Committee shall adopt a modification to the Schedule to Annex 15A (Government Procurement Schedules) in accordance with subparagraph 2(g) of Article 27.2 (Functions of the Joint Committee – Administrative and Institutional Provisions) to reflect any agreed modification.
Article 15.21. Working Group on Government Procurement
1. The Parties hereby establish a Working Group on Government Procurement composed of government representatives of each Party.
2. The Working Group on Government Procurement shall meet at least once every two years, or as mutually agreed by the Parties, and may meet virtually, to address matters related to the implementation and operation of this Chapter, such as:
(a) considering matters regarding government procurement that are referred to it by a Party;
(b) exchanging information relating to government procurement opportunities, including those at sub-central levels, in each Party;
(c) exchanging experience and best practices, including on the use and adoption of information technology in conducting procurement and of measures to promote environmental, social, and labour considerations in government procurement;
(d) facilitation of participation by SMEs in covered procurement, as provided for in Article 15.10 (Facilitation of Participation by SMEs); and
(e) facilitation of participation by women in government procurement to the extent possible, acknowledging the objectives in Chapter 23 (Trade and Gender Equality).
Article 15.22. Further Negotiations
Definitions
1. For the purposes of this Article, “GPA” means the Agreement on Government Procurement, set out in Annex 4 to the WTO Agreement, as amended from time to time.
General
2. If a Party agrees under another trade agreement, additional advantages or coverage relating to access to procurement markets, beyond what is included in this Agreement:
(a) the other Party may request for consultations with a view to seek such advantages or coverage from the first Party and for the other Party to extend a commensurate level of coverage of procurement to the first Party; and
(b) both Parties shall enter into such consultations at a mutually determined date.
Thresholds
3. Subject to paragraph 6, if a Party agrees under a trade agreement with a party to the GPA a threshold for central government entities less than that specified in its Schedule to Annex 15A (Government Procurement Schedules):
(a) that Party shall provide written notification to the other Party that it has agreed to the lesser threshold and shall offer to reduce its threshold to that agreed under that other trade agreement; and
(b) the other Party may accept such an offer, provided that, where applicable, the other Party also reduces its threshold to that lesser threshold.
4. Paragraph 3 shall not apply to any trade agreement entered between a Party and a non-party to this Agreement, where that non-party subsequently becomes a party to the GPA.
5. The Parties shall give effect to the outcomes described in paragraph 3 by way of amendment, in accordance with Article 30.2 (Amendments – Final Provisions). Such amendment shall not constitute a modification under Article 15.20 (Modification and Rectification of Annex).
6. A Party shall not be required to offer or reduce its threshold for central government entities as specified in its Schedule to Annex 15A (Government Procurement Schedules) in respect of the threshold for goods, SDR 130,000; in respect of the threshold for services SDR 130,000; and, in respect of the threshold for construction services, SDR 5,000,000.
MII Order
7. If India agrees under a trade agreement with a party to the GPA, advantages or coverages in respect of its government procurement market under or in connection with the MII Order in addition to the advantages or coverages provided to the United Kingdom:
(a) India shall provide written notification to the United Kingdom that it has agreed to such advantages or coverage, or the United Kingdom may provide written notification to India that it considers India has agreed to such advantages or coverage; and
(b) the Parties shall enter into consultations at a mutually determined date in order to extend a commensurate level of advantages or coverage to the United Kingdom.
8. Paragraph 7 shall not apply to any trade agreement entered between a Party and a non-party, where that non-party subsequently becomes a party to the GPA.
9. The Parties shall give effect to the outcomes described in paragraph 7 by way of amendment, in accordance with Article 30.2 (Amendments – Final Provisions). Such amendment shall not constitute a modification under Article 15.20 (Modification and Rectification of Annex).
Article 15.23. Application of Dispute Settlement
Neither Party shall have recourse to dispute settlement under Chapter 29 (Dispute Settlement) for any matter arising under this Chapter for a period of four years from the date of entry into force of this Agreement.
Chapter 16. COMPETITION AND CONSUMER PROTECTION POLICY
Article 16.1. Competition Law and Authorities
Each Party shall maintain competition law in its territory that:
proscribes anti-competitive agreements between enterprises, including cartel agreements;
proscribes anti-competitive practices by enterprises that have substantial market power; and
prevents or remedies mergers with substantial anti-competitive effects.
Subject to paragraph 3, each Party shall ensure that its competition law applies and is enforced with respect to all commercial activities in its territory in a manner that does not discriminate on the basis of an enterprise’s nationality or ownership. This does not preclude a Party from providing that its competition law applies to commercial activities outside its borders that have the object, or which have or may have the effect of, restricting competition within its jurisdiction.
Each Party may provide for certain exemptions from its competition law provided that those exemptions are transparent and based on public policy grounds.
Each Party shall maintain an operationally independent national competition authority responsible for the enforcement of its competition law.
Each Party shall apply and enforce its competition law in a transparent and timely manner, respecting the principles of procedural fairness and rights of defence of the persons concerned, irrespective of their nationality or ownership status.
For the purposes of this Article, “private right of action” means the right of a person to seek redress, including injunctive, monetary or other remedies, from a court or national competition authority or other independent tribunal for injury to that person’s business or property caused by a breach of competition law.
Recognising that a private right of action is an important supplement to the public enforcement of competition law, each Party shall endeavour to maintain measures that provide a private right of action, both independently and following a finding of breach by a national competition authority, in accordance with its laws.
Each Party shall ensure that a right provided pursuant to paragraph 2 is available to persons of the other Party on terms that are no less favourable than those available to its own persons.
A Party may establish reasonable criteria for the exercise of any rights it creates or maintains in accordance with this Article.
The Parties recognise the importance of consumer protection policy and enforcement to enhancing consumer welfare in the territories of the Parties.
Each Party shall maintain measures against misleading or unfair commercial activities.
Each Party shall maintain laws and regulations that provide consumers with statutory rights in relation to goods and services supplied to them.
The Parties further recognise the importance of increasing awareness of and providing access to consumer redress mechanisms, including for consumers of a Party transacting with suppliers of the other Party.
The Parties recognise the benefits of dispute resolution mechanisms in facilitating the resolution of disputes between consumers and suppliers, including alternative dispute resolution mechanisms.
Cooperation
The Parties recognise the importance of cooperation between their respective competition and consumer protection authorities to foster effective competition and consumer protection law enforcement in the territories of the Parties. To this end, the Parties may cooperate, through their competition and consumer protection authorities, on issues relating to the enforcement of competition and consumer protection law.
The Parties recognise that it is in their common interest to work together on technical cooperation activities to strengthen competition and consumer protection policy development and the enforcement of competition and consumer protection law.
Any cooperation under paragraphs 1 and 2 shall be undertaken only to the extent that it is compatible with each Party’s law and important interests and within the Parties’ available resources.
To implement the objectives of this Article, the Parties may enter into separate commitments or arrangements on cooperation.
The Parties recognise the value of transparency in relation to competition and consumer protection law and enforcement.
Subject to paragraph 3, each Party shall make public, or require the following to be made public:
its competition laws and regulations;
exemptions and immunities to its competition law;
guidelines and any rules issued in relation to the administration and enforcement of its competition law; and
information on the protection it provides consumers, including for consumers engaged in online commercial activities. This information shall include how consumers can pursue remedies and how enterprises can comply with any legal requirements.
Paragraph 2 does not require the Parties’ respective national competition and consumer protection authorities to make public their internal operating procedures.
Each Party shall encourage enterprises to publish their policies and procedures related to consumer protection.
In order to foster understanding between the Parties, or to address specific matters that arise under this Chapter, a Party shall enter into consultations upon request by the other Party. In its request, the requesting Party shall indicate, if relevant, how the matter affects trade or investment between the Parties.
The requested Party shall accord full and sympathetic consideration to the concerns of the requesting Party and shall reply promptly to the request.
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 CHAPTER 17
STATE-OWNED ENTERPRISES
Article Article 17.1 Definitions
For the purposes of this Chapter:
“commercial activities” means activities which a juridical person undertakes with an orientation toward profit-making1 and which result in the production of a good or supply of a service that will be sold to a consumer in the relevant market in quantities and at prices determined by the juridical person;
“commercial considerations” means price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale, or other factors that would normally be taken into account in the commercial decisions of a privately owned enterprise in the relevant business or industry;
“market” means the geographical and commercial market for a good or service;
“state-owned enterprise” means a company that is engaged in commercial activities in which a Party directly owns a majority of the share capital2; and
“state trading enterprise” has the meaning given in paragraph 1 of the Understanding on the Interpretation of Article XVII of the General Agreement on Tariffs and Trade 1994.
This Chapter applies only to state-owned enterprises and state trading enterprises engaged in commercial activities. Where state-owned enterprises and state trading enterprises engage both in commercial activities and other activities, only the commercial activities are covered by this Chapter.
This Chapter applies only to state-owned enterprises and state trading enterprises at the central level of government.
This Chapter does not apply to government procurement.
1 For greater certainty, activities undertaken by a juridical person that operates on a not-for-profit basis or on a cost-recovery basis, including a juridical person that undertakes activities that may result in incidental revenue in excess of costs, are not activities undertaken with an orientation toward profit- making.
2 For the purposes of this Article, “a majority of the share capital” means, for the UK, “more than 50% of the share capital” and for India, “at least 51% of the paid-up share capital”.
This Chapter does not apply to measures taken in response to a national or global economic emergency3. Such measures shall be transparent and shall not go beyond their objective.
This Chapter shall not apply to any services supplied in the exercise of governmental authority. For the purposes of this paragraph, “a service supplied in the exercise of governmental authority” has the same meaning as in GATS.
This Chapter shall not apply to commercial activities of state-owned enterprises and state trading enterprises where those activities are pursuant to a specific mandate that is transparent, provided in the Party’s law, and based on public policy grounds4.
This Chapter shall not apply to activities of state-owned enterprises and state trading enterprises in atomic energy, defence, health, and space sectors.
This Chapter does not apply to:
commercial banking and insurance operations;
the regulatory or supervisory activities, or monetary and related credit policy and exchange rate policy, of a central bank or monetary authority of a Party;
the regulatory or supervisory activities of a financial regulatory body of a Party, including a non-governmental body, such as a securities or futures exchange or market, clearing agency, or other organisation or association, that exercises regulatory or supervisory authority over financial services suppliers; or
activities undertaken by a Party or one of its state-owned enterprises for the purpose of the resolution of a failing or failed enterprise or branch principally engaged in the supply of financial services.
Article Article 17.6 (Commercial Considerations), Article 17.7 (Transparency) and Article 17.8 (Consultations) Do Not Apply with Respect to a State-owned Enterprise or State Trading Enterprise If In Each One of the Three Previous Consecutive Fiscal Years, the Annual Turnover of the State-owned Enterprise or State Trading Enterprise Was Less Than 400 Million Special Drawing Rights.
This Chapter does not apply to the activities of state-owned enterprises or state trading enterprises for the purpose of the adoption, enforcement or
3 For greater certainty, an economic emergency shall be understood as one that affects the whole economy of a Party.
4 For the purposes of this paragraph, “public policy grounds” means grounds relating to national security, energy security, environment protection and sustainable development, social welfare, promotion of small businesses, and promotion of manufacturing and production of goods or services with a view to enhancing income and employment.
implementation of the privatisation, merger, restructuring, subsidiarisation or divestment of assets owned or controlled by the Government of India.
Article Article 17.6 (Commercial Considerations) Does Not Apply to the Extent That a Party’s State-owned Enterprise or State Trading Enterprise Makes Purchases or Sales of Goods or Services:
in sectors or sub-sectors that are not included in that Party’s Schedule in Annex 8B (Schedules of Specific Commitments) or Annex 9A (Schedules of Specific Commitments on Financial Services); or
pursuant to a measure that is in accordance with any term, limitation, condition, or qualification to any commitment included in that Party’s Schedule in Annex 8B (Schedules of Specific Commitments) or Annex 9A (Schedules of Specific Commitments on Financial Services).
The Parties recognise that state-owned enterprises and state trading enterprises can serve public policy objectives, including economic and social development. The Parties acknowledge, however, that certain activities of state-owned enterprises and state trading enterprises, have the potential to distort the proper functioning of markets and undermine the benefits of liberalisation of trade.
The Parties recognise the importance of strengthening cooperation with a view to further improving corporate governance, efficient management, and functioning of their respective state-owned enterprises and state trading enterprises.
Nothing in this Chapter shall be construed to prevent a Party from establishing or maintaining state-owned enterprises or state trading enterprises.
The Parties affirm their rights and obligations under Article XVII of GATT 1994 and the Understanding on the Interpretation of Article XVII of the General Agreement on Tariffs and Trade 1994.
Legal and Regulatory Framework
Each Party shall apply its law to state-owned enterprises and state trading enterprises in a consistent and non-discriminatory manner. A Party may grant
exemptions or immunities from its law to state-owned enterprises and state trading enterprises, provided they are transparent.
Each Party shall ensure that any regulatory body or any other body exercising a regulatory function that the Party establishes or maintains acts impartially as between, on the one hand, state-owned enterprises and state trading enterprises, and on the other hand, non-state-owned enterprises and non-state trading enterprises. The impartiality with which such body exercises its regulatory discretion is to be assessed by reference to a relevant pattern or practice of that body.
Where the Parties have agreed provisions in other Chapters that conflict with this Article, the relevant provisions of those Chapters shall prevail.
Each Party shall ensure that its state-owned enterprises and state trading enterprises act in accordance with commercial considerations in the purchase or sale of goods or services.
The Parties recognise the importance of transparency in fostering understanding and cooperation between the Parties. To that end, a Party may request in writing information that is publicly available relating to the other Party’s state-owned enterprises and state trading enterprises. In its request, the requesting Party shall indicate its rationale for seeking the information. The requested Party shall use best endeavours to provide the information requested.
To address specific matters that may arise under this Chapter, a Party shall enter into consultations upon request by the other Party. In its request, the requesting Party shall indicate how the matter negatively affects trade between the Parties. The responding Party shall accord full and sympathetic consideration to the concerns of the requesting Party.
During the consultations, the requesting Party may seek additional information concerning a state-owned enterprise or state trading enterprise of the responding Party. That information may include:
the percentage of shares that the Party or its state-owned enterprises cumulatively own, and the percentage of votes that they cumulatively hold, in the entity;
a description of any special shares or special voting or other rights that the Party or its state-owned enterprises hold, to the extent these rights are different from the rights attached to the general common shares of the entity;
a description of the government departments or public bodies which regulate the entity, a description of the reporting requirements imposed on it by those departments or public bodies, and the rights and practices, where possible, of those departments or public bodies with respect to the appointment, dismissal or remuneration of senior executives and members of its board of directors or any other equivalent management body;
a description of the organisational structure of the entity and its composition of the board of directors or of any other equivalent body;