The Parties recognise that the description of offences adopted or maintained in accordance with this Chapter, and of the applicable legal defences or legal principles controlling the lawfulness of conduct, is reserved to each Party’s law, and that those offences shall be prosecuted and punished in accordance with each Party’s law. The Parties recognise that obligations under this Chapter shall be carried out in a manner consistent with the principles of sovereign equality and territorial integrity with respect to the Parties and that of non-intervention in the domestic affairs of the other Party. Nothing in this Chapter shall entitle a
Party to undertake in the territory of the other Party the exercise of jurisdiction and performance of functions that are reserved exclusively for the authorities of the other Party by its law.
Measures to Prevent and Combat Bribery and Corruption1
Each Party shall adopt or maintain legislative and other measures as may be necessary to establish as criminal offences under its law, in matters affecting international trade or investment, when committed intentionally, by any person subject to its jurisdiction:
the promise, offering, or giving to a public official, directly or indirectly, of an undue advantage for the official or another person or entity, in order that the official act or refrain from acting in relation to the performance of or the exercise of official duties;
the solicitation or acceptance by a public official, directly or indirectly, of an undue advantage for the official or another person or entity, in order that the official act or refrain from acting in relation to the performance of or the exercise of official duties; and
the aiding or abetting, or conspiracy in, the commission of any of the offences described in subparagraphs (a) and (b).
Each Party shall endeavour to adopt or maintain, and enforce measures criminalising the bribery of foreign public officials and officials of public international organisations, in accordance with Article 16 of the UNCAC.
Each Party shall adopt or maintain measures as may be necessary, in accordance with its laws and regulations regarding the maintenance of books and records, financial statement disclosures, and accounting and auditing standards, to prohibit the following acts carried out for the purpose of committing any of the offences described in this Article:
the establishment of off-the-books accounts;
the making of off-the-books or inadequately identified transactions;
the recording of non-existent expenditure;
the entry of liabilities with incorrect identification of their objects;
the use of false documents; and
the intentional destruction of bookkeeping documents earlier than
1 For greater certainty, the obligations in this Article to establish offences may be fulfilled by a Party through legislative or other measures which cover the range of acts or offences directly or otherwise.
foreseen by the law.
Each Party shall adopt or maintain legislative and other measures as may be necessary to establish as a criminal offence under its law, in matters affecting international trade or investment, when committed intentionally:
the embezzlement, misappropriation, or other diversion2 by a public official for the benefit of the public official or for the benefit of another person, of any property, public or private funds or securities, or any other thing of value entrusted to the public official by virtue of the public official’s position; and
by any person subject to its jurisdiction, the participation in, association with or conspiracy to commit, attempts to commit, and aiding, abetting, facilitating, and counselling the commission of an offence established in accordance with subparagraph (a).
Each Party shall adopt or maintain measures as may be necessary in accordance with its laws and regulations to establish as criminal offences, in matters affecting international trade or investment, when committed intentionally, by any person subject to its jurisdiction:
the conversion or transfer of property, knowing that such property is the proceeds of crime, for the purpose of concealing or disguising the illegal origin of the property or of helping any person who is involved in the commission of the predicate offence to evade the legal consequences of that person’s action;
the concealment or disguise of the true nature, source, location, disposition, movement or ownership of, or rights with respect to property, knowing that such property is the proceeds of crime;
the acquisition, possession, or use of property, knowing, at the time of receipt, that such property is the proceeds of crime; and
participation in, association with or conspiracy to commit, attempts to commit, and aiding, abetting, facilitating, and counselling the commission of any of the offences established in accordance with subparagraphs (a) through (c).
Each Party shall adopt or maintain, in accordance with its law, effective, proportionate, and dissuasive penalties and appropriate procedures to enforce the measures that it adopts or maintains pursuant to paragraphs 1 through 5.
Neither Party shall allow a person subject to its jurisdiction to deduct from taxes expenses incurred in connection with the commission of an offence described in paragraph 1.
2 For greater certainty, “diversion” means, for the United Kingdom, embezzlement or misappropriation that constitutes the criminal offences of theft or fraud under its law; and, for India, as determined by its legal system.
Each Party shall adopt or maintain measures enabling the identification, tracing, freezing, seizure, and confiscation in criminal proceedings3 of:
proceeds, including any property, derived from the offences described in paragraphs 1, 4, and 5; and
property, equipment, or other instrumentalities used in or destined for use in those offences.
The Parties recognise the harmful effects of facilitation payments. Each Party shall, in accordance with its laws and regulations:
prohibit the use of facilitation payments; and
take steps to raise awareness among its public officials of its bribery laws, and to raise global awareness of the harmful effects of facilitation payments, with a view to stopping the solicitation, payment, and the acceptance of facilitation payments.
Each Party shall ensure that any statute of limitations applicable to any criminal offences described in this Chapter allows an adequate period of time for the investigation and prosecution of the offence.
Persons that Report Bribery or Corruption Offences
Each Party shall, as it considers appropriate, adopt or maintain measures to ensure that its competent authorities which are responsible for the measures under Article 26.4 (Measures to Prevent and Combat Bribery and Corruption), or the enforcement of those measures, are known to the public.
Each Party shall adopt or maintain publicly available procedures for a person to report to its competent authorities, including anonymously as permitted by its law, any incident that may be considered to constitute an offence described in paragraphs 1, 4 or 5 of Article 26.4 (Measures to Prevent and Combat Bribery and Corruption) or an act described in paragraph 3 of Article 26.4 (Measures to Prevent and Combat Bribery and Corruption).
Each Party shall consider adopting or maintaining appropriate measures, in accordance with its laws and regulations, to protect against or provide remedy for discriminatory or disciplinary treatment of any public and private sector employee who, on reasonable belief, reports to the competent authorities any suspected incident that may be considered to constitute an offence described in paragraphs 1, 4, or 5 of Article 26.4 (Measures to Prevent and Combat Bribery and Corruption) or an act described in paragraph 3 of Article 26.4 (Measures to
3 For greater certainty, this paragraph is without prejudice to the adoption or maintenance of such measures in non-conviction-based proceedings by either Party.
Prevent and Combat Bribery and Corruption).4
Promoting Integrity among Public Officials
To prevent and combat bribery and corruption in matters affecting international trade or investment, each Party affirms its resolve to promote, among other things, integrity, honesty, and responsibility among its public officials. To this end, each Party shall endeavour to adopt or maintain:
measures to provide adequate procedures for the selection and training of individuals for public positions considered by the Party to be especially vulnerable to corruption, and the rotation, if appropriate, of those individuals to other positions;
measures to promote transparency in the behaviour of public officials in the exercise of public functions;
appropriate policies and procedures to identify and manage actual or potential conflicts of interest of public officials;
measures that require senior and other appropriate public officials to make declarations to appropriate authorities regarding, among other things, their outside activities, employment, investments, assets, and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials; and
measures to facilitate reporting by public officials of acts of bribery and corruption to competent authorities, if those acts come to their notice in the performance of their functions.
Each Party shall endeavour to adopt or maintain codes or standards of conduct for the correct, honourable, and proper performance of public functions, and measures providing for disciplinary or other procedures, if warranted, against a public official who violates the codes or standards established in accordance with this paragraph.
Each Party shall consider establishing procedures through which a public official accused or convicted of an offence described in this Chapter may, if appropriate, be removed, suspended, or reassigned by the appropriate authority, bearing in mind respect for the principle of the presumption of innocence.
Each Party shall, without prejudice to judicial independence, adopt or maintain measures to strengthen integrity, and to prevent opportunities for corruption, among members of the judiciary in matters affecting international trade or investment. These measures may include rules with respect to the conduct of
4 For greater certainty, this paragraph is without prejudice to each Party’s right to adopt or maintain additional requirements for the making of such a report provided these requirements do not have the effect of unjustifiably limiting a person’s access to protection or remedy.
members of the judiciary.
Participation of Private Sector and Society
Each Party shall take appropriate measures to promote the active participation of individuals and groups outside the public sector, in preventing and combatting bribery and corruption in matters affecting international trade or investment and to raise public awareness regarding the existence, causes, and gravity of and the threat posed by that bribery and corruption. To this end, a Party may:
undertake public information activities and public education programmes that contribute to non-tolerance of bribery and corruption;
adopt or maintain measures to encourage professional associations and other non-governmental organisations, if appropriate, to encourage and assist enterprises, in particular SMEs, in developing internal controls, ethics and compliance programmes, and codes and standards of conduct for preventing and detecting bribery and corruption;
adopt or maintain measures to encourage company management to make statements in their annual reports or otherwise publicly disclose their internal controls, ethics and compliance programmes, including those that contribute to preventing and detecting bribery and corruption; and
adopt or maintain measures to respect, promote, and protect the freedom to seek, receive, publish, and disseminate information concerning bribery and corruption,
in matters affecting international trade or investment.
Each Party shall endeavour to encourage private enterprises, taking into account their size, structure, and the sectors in which they operate, to:
adopt or maintain sufficient internal auditing controls and compliance programmes to assist in preventing and detecting acts of bribery and corruption in matters affecting international trade or investment; and
ensure that their accounts and required financial statements are subject to appropriate auditing and certification procedures.
Application and Enforcement of Measures to Prevent and Combat Bribery and Corruption
In accordance with the applicable principles of its legal system, neither Party shall fail to effectively enforce the measures adopted or maintained to comply
with Articles 26.4 (Measures to Prevent and Combat Bribery and Corruption) through 26.6 (Promoting Integrity among Public Officials), through a sustained or recurring course of action or inaction.5
Each Party retains the right for its law enforcement, prosecutorial, and judicial authorities to exercise discretion with respect to the enforcement of its measures to prevent and combat bribery and corruption. Each Party retains the right to take bona fide decisions with regard to the allocation of its resources with respect to that enforcement.
The Parties affirm their commitments under applicable international agreements or arrangements to cooperate with each other, consistent with their respective legal and administrative systems, to enhance the effectiveness of law enforcement actions to combat the offences described in paragraphs 1, 4, and 5 of Article 26.4 (Measures to Prevent and Combat Bribery and Corruption) and the acts described in paragraph 3 of Article 26.4 (Measures to Prevent and Combat Bribery and Corruption).
Relation to Other Agreements
Nothing in this Agreement affects the rights and obligations of the Parties under the Anti-Bribery Convention, the UNCAC or the United Nations Convention against Transnational Organized Crime done at New York on 15 November 2000.6
Cooperation and Non-Application of Dispute Settlement
The Parties shall make every effort through dialogue, exchange of information, and cooperation to address matters that might affect the operation or application of this Chapter.
The Parties shall endeavour to cooperate as appropriate, in matters affecting international trade or investment, consistent with each Party’s domestic law and anticorruption frameworks, in:
sharing their diverse experience and best practices in developing, implementing, and enforcing their anti-corruption laws and policies, including matters of embezzlement, misappropriation, or other diversion, laundering or recovery of proceeds of crime, and beneficial ownership information;
5 For greater certainty, the Parties recognise that individual cases or specific discretionary decisions related to the enforcement of anti-corruption laws are subject to each Party’s own domestic laws and legal procedures.
6 Reference in this paragraph to the Anti-Bribery Convention does not apply to India, which is not a party to the Anti-Bribery Convention.
pursuing, investigating, and prosecuting any person subject to their respective jurisdictions that commits an offence described in this Chapter and in identifying, tracing, freezing, seizing, and confiscating the proceeds of crime; and
developing measures regarding transparency of beneficial ownership information to prevent and combat bribery and corruption.
To facilitate the cooperation described in paragraphs 1 and 2, the Parties hereby establish the Anti-Corruption Working Group, composed of government representatives of each Party, including representatives with relevant expertise, under the auspices of the Joint Committee Where appropriate and with prior agreement of each Party, this working group may invite ad hoc presentations from relevant law enforcement agencies of the Parties. This working group shall meet at such venues and times as mutually determined by the Parties. Meetings may be conducted in person, or by any other means as mutually determined by the Parties. To the extent possible, the Anti-Corruption Working Group shall avoid replacing or duplicating the work or activities of other forums between the Parties’ respective competent anti-corruption authorities.
Neither Party shall have recourse to dispute settlement under Chapter 29 (Dispute Settlement) for any matter arising under this Chapter.
Chapter CHAPTER 27
ADMINISTRATIVE AND INSTITUTIONAL PROVISIONS
Article Article 27.1 Establishment of the Joint Committee
The Parties hereby establish a Joint Committee, composed of government representatives of the Parties. The Joint Committee shall meet at the level of:
senior officials; or
when agreed by the Parties, Ministers.
Functions of the Joint Committee
The Joint Committee shall:
consider any matter relating to the implementation of this Agreement;
assess, review and monitor the overall operation of this Agreement;
consider any proposal to amend or modify this Agreement and, if appropriate, make recommendations to the Parties;
supervise and coordinate the work of subcommittees, working groups, and other subsidiary bodies established under this Agreement; and
consider ways to further enhance trade between the Parties.
The Joint Committee may:
establish, assign tasks to, or delegate functions to, a subcommittee, working group, or other subsidiary body;
refer matters to, or consider matters raised by, a subcommittee, working group, or other subsidiary body;
restructure, reorganise or dissolve a subcommittee, working group, or other subsidiary body established under this Agreement;
develop arrangements for implementing this Agreement;
seek to resolve differences or disputes that may arise regarding the interpretation or application of this Agreement, without prejudice to the rights of the Parties under Chapter 29 (Dispute Settlement);
issue interpretations of the provisions of this Agreement, which shall be binding for panels established under Chapter 29 (Dispute Settlement);
adopt, after the completion of any necessary domestic legal requirements by each Party, modifications to Annexes or Appendices to this Agreement;
discuss and consider proposals for future cooperation activities, including on analytical topics for information sharing and for facilitating the monitoring and evaluation of this Agreement; and
take any other action as the Parties may agree.
The Joint Committee and all subcommittees, working groups, or other subsidiary bodies established under this Agreement shall take decisions by mutual agreement.
Rules of Procedure of the Joint Committee
The Joint Committee and any subcommittee, working group or other subsidiary body established under this Agreement, shall be co-chaired by representatives of the Parties.
Unless otherwise provided in this Agreement, the Joint Committee and any subsidiary body established under this Agreement shall carry out its work through whatever means are appropriate, which may include electronic mail or videoconferencing.
Unless otherwise decided, the Joint Committee shall adopt rules of procedure at its first meeting, and any subsidiary body established under this Agreement may also establish rules of procedure for the conduct of its work.
Each Party shall designate an overall contact point to receive and facilitate communications between the Parties on any matter covered by this Agreement, as well as other contact points as required by this Agreement.
Unless otherwise provided in this Agreement, each Party shall notify the other Party in writing of its designated contact points no later than 60 days after the date of entry into force of this Agreement.
Each Party shall promptly notify the other Party, in writing, of any changes to its overall contact point or any other contact point.
On request of a Party, the overall contact point of the other Party shall identify the office or official responsible for a matter and assist, as necessary, in facilitating communication with the requesting Party.
Meeting of the Joint Committee
The Joint Committee shall meet within one year of entry into force of this Agreement. Thereafter, it shall meet every two years unless the Parties agree otherwise, to consider any matter relating to this Agreement.
The Joint Committee may meet in person or by other means, as agreed by the Parties.
In-person meetings conducted pursuant to paragraph 1 shall be held alternately in the territories of the Parties, unless the Parties agree otherwise. The Party hosting a session of the Joint Committee shall provide any necessary administrative support for such session.
Upon request by a Party, the Joint Committee and any subcommittee, working group, or other subsidiary body established under this Agreement may, if agreed by the Parties, hold special sessions without undue delay at a mutually convenient date.
Each Party shall be responsible for composition of its delegation.
The Parties hereby establish a Subcommittee on Sustainability (“Sustainability Subcommittee”), composed of government representatives of the Parties.
The Sustainability Subcommittee shall:
monitor and review the implementation and operation of Chapter 20 (Labour), Chapter 21 (Environment), and Chapter 22 (Trade and Development Cooperation);
facilitate, monitor, and as appropriate determine and prioritise, cooperative activities, including information sharing, under Article 20.9 (Cooperative Activities – Labour), Chapter 21 (Environment) and Article 22.2 (Joint Development Cooperation Activities – Trade and Development Cooperation); and
produce an agreed record of its meetings and report to the Joint Committee with respect to its activities.
The Sustainability Subcommittee may:
make recommendations, or refer matters, to the Joint Committee;
cooperate with subcommittees, working groups, and other subsidiary bodies established under this Agreement on issues relevant to Chapter 20 (Labour), Chapter 21 (Environment), or Chapter 22 (Trade and Development Cooperation); and
carry out any other function as the Joint Committee may decide.
The Sustainability Subcommittee shall meet at least once annually in the three years following the entry into force of this Agreement. Thereafter, it shall meet biennially, unless the Parties agree otherwise.
The Sustainability Subcommittee may meet in person or by other means, as agreed by the Parties. Each Party shall be responsible for the composition of its delegation.
Chapter CHAPTER 28
GENERAL PROVISIONS AND EXCEPTIONS
Article Article 28.1 General Exceptions
For the purposes of Chapter 2 (Trade in Goods), Chapter 3 (Rules of Origin), Chapter 5 (Customs and Trade Facilitation), Chapter 6 (Sanitary and Phytosanitary Measures), Chapter 7 (Technical Barriers to Trade), Chapter 12 (Digital Trade), and Chapter 17 (State-Owned Enterprises), Article XX of GATT 1994 is incorporated into and made part of this Agreement, mutatis mutandis.1
For the purposes of Chapter 8 (Trade in Services), Chapter 9 (Financial Services), Chapter 10 (Temporary Movement of Natural Persons), Chapter 11 (Telecommunications), Chapter 12 (Digital Trade), and Chapter 17 (State- Owned Enterprises), Article XIV of GATS is incorporated into and made part of this Agreement, mutatis mutandis.2
The Parties understand that Article XX(g) of GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources.
Nothing in this Agreement shall be construed to prevent a Party from implementing a suspension of concessions or other obligations, including maintaining or increasing a customs duty, that is authorised by the Dispute Settlement Body of the WTO.
Nothing in this Agreement shall be construed to:
require a Party to furnish any information the disclosure of which it considers contrary to its essential security interests; or
1 For the purposes of Chapter 17 (State-Owned Enterprises), the application of Article XX of GATT 1994 is limited to measures of a Party (including the implementation of measures through the activities of a state-owned enterprise or state trading enterprise) affecting the purchase, production or sale of goods, or affecting activities the end result of which is the production of goods.
2 For the purposes of Chapter 17 (State-Owned Enterprises), the application of Article XIV of GATS is limited to measures of a Party (including the implementation of measures through the activities of a state-owned enterprise or state trading enterprise) affecting the purchase or supply of services, or affecting activities the end result of which is the supply of services.
prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
relating to the production of or traffic in arms, ammunition and implements of war and to other activities carried on, directly or indirectly, for the purpose of supplying or provisioning a military establishment;
relating to the supply of services as carried on, directly or indirectly, for the purpose of supplying or provisioning a military establishment;
taken in time of war or other emergency in international relations;