Article 12.3. Cooperation
Recognising the global nature of electronic commerce, each Party shall endeavour to:
(a) work together to assist micro, small, and medium-sized enterprises to overcome obstacles to its use;
(b) exchange information and share experiences on regulations, policies, enforcement, and compliance regarding electronic commerce, such as:
(i) personal data protection;
(ii) online consumer protection, including means for consumer redress and building consumer confidence;
(iii) unsolicited commercial electronic messages;
(iv) security in electronic communications; and
(v) authentication.
(c) exchange information and share views on consumer access to products and services offered online;
(d) participate actively in regional and multilateral fora to promote the development of electronic commerce, including in relation to the development and application of international standards for electronic commerce; and
(e) encourage development by the private sector of methods of self-regulation that foster electronic commerce, including codes of conduct, model contracts, guidelines, and enforcement mechanisms.
Article 12.4. Paperless Trading
1. Each Party shall endeavour to make trade administration documents available to the public in electronic form.
2. Each Party shall accept electronic versions of its trade administration documents as the legal equivalent of paper documents except where:
(a) there is a domestic or international legal requirement to the contrary; or
(b) doing so would reduce the effectiveness of the trade administration process.
3. The Parties shall cooperate bilaterally and in international fora to enhance the acceptance of electronic versions of trade administration documents.
Article 12.5. Electronic Authentication and Electronic Signatures
1. Except in circumstances otherwise provided for under its law, a Party shall not deny the legal validity of a signature solely on the basis that the signature is in electronic form.
2. Taking into account international norms for electronic authentication, each Party shall:
(a) permit participants in electronic transactions to determine the appropriate authentication methods for their electronic transactions;
(b) not limit the recognition of authentication methods; and
(c) permit participants in electronic transactions to have the opportunity to demonstrate that their electronic transactions comply with the Party’s laws and regulations.
3. Notwithstanding paragraph 2, each Party may require that, for a particular category of electronic transactions, the method of electronic authentication meets certain performance standards or is certified by an authority accredited in accordance with its laws and regulations.
4. The Parties shall encourage the use of interoperable electronic authentication.
Article 12.6. Online Consumer Protection
1. The Parties recognise the importance of adopting and maintaining transparent and effective measures to protect consumers from fraudulent and deceptive commercial activities when they engage in electronic commerce.
2. For the purposes of this Article, “fraudulent and deceptive commercial activities” refers to those commercial practices that cause actual harm to consumers, or that pose an imminent threat of that harm if not prevented, such as:
(a) a practice of making misrepresentations of material fact, including implied factual misrepresentations, that cause significant detriment to the economic interests of misled consumers;
(b) a practice of failing to deliver products or provide services to consumers after the consumers are charged; or
(c) a practice of charging or debiting consumers’ financial, telephone, or other accounts without authorisation.
3. Each Party shall adopt or maintain laws or regulations to provide protection for consumers using electronic commerce against fraudulent and deceptive commercial activities that cause harm or potential harm.
4. The Parties recognise the importance of cooperation between their respective national consumer protection agencies or other relevant bodies on activities related to cross-border electronic commerce in order to enhance consumer welfare.
5. Each Party shall publish information on the consumer protection it provides to users of electronic commerce, including how:
(a) consumers can pursue remedies; and
(b) businesses can comply with, or acquire information on, any legal requirements.
Article 12.7. Online Personal Data Protection
1. The Parties recognise the economic and social benefits of protecting the personal data of users of electronic commerce and the contribution that this makes to enhancing consumer confidence in electronic commerce.
2. To this end, each Party shall adopt or maintain a legal framework that provides for the protection of the personal data of the users of electronic commerce. In the development of its legal framework for the protection of personal data, each Party shall take into account principles and guidelines of relevant international bodies.
3. Each Party shall endeavour to adopt non-discriminatory practices in protecting users of electronic commerce from personal data protection violations occurring within its jurisdiction.
4. Each Party shall publish information on the personal data protection it provides to users of electronic commerce, including how:
(a) individuals can pursue remedies; and
(b) businesses can comply with any legal requirements.
Article 12.8. Unsolicited Commercial Electronic Messages
1. Each Party shall adopt or maintain measures regarding unsolicited commercial electronic messages that:
(a) require suppliers of unsolicited commercial electronic messages to facilitate the ability of recipients to prevent ongoing reception of those messages;
(b) require the consent, as specified according to the laws and regulations of each Party, of recipients to receive commercial electronic messages; or
(c) otherwise provide for the minimisation of unsolicited commercial electronic messages.
2. Each Party shall provide recourse against suppliers of unsolicited commercial electronic messages that do not comply with the measures adopted or maintained pursuant to paragraph 1.
3. The Parties shall endeavour to cooperate in appropriate cases of mutual concern regarding the regulation of unsolicited commercial electronic messages.
4. A Party shall apply this Article to unsolicited commercial electronic messages delivered through one or more modes of delivery, including Short Message Service (“SMS”), instant messaging, or electronic mail. Each Party shall endeavour to adopt or maintain measures consistent with this Article that apply to other modes of delivery of unsolicited commercial electronic messages.
Article 12.9. Domestic Regulatory Frameworks
1. Each Party shall maintain a legal framework governing electronic transactions consistent with the principles of the UNCITRAL Model Law on Electronic Commerce 1996 or the United Nations Convention on the Use of Electronic Communications in International Contracts, done at New York on 23 November 2005.
2. Each Party shall endeavour to avoid any unnecessary regulatory burden on electronic transactions.
Article 12.10. Cross-Border Transfer of Information by Electronic Means
1. The Parties recognise that each Party may have its own regulatory requirements concerning the transfer of information by electronic means.
2. A Party shall not prevent cross-border transfer of information by electronic means, including personal data, when this activity is for the conduct of the business of a covered person.
3. This Article does not prevent a Party from adopting or maintaining:
(a) a measure inconsistent with paragraph 2 that is necessary to achieve 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; or
(b) a measure that it considers necessary for the protection of its essential security interests. That measure, if adopted or maintained, shall not be disputed by the other Party.
Article 12.11. Location of Computing Facilities
1. The Parties recognise that each Party may have its own measures regarding the use or location of computing facilities, including requirements that seek to ensure the security and confidentiality of communications.
2. A Party shall not require a covered person to use or locate computing facilities in that Party’s territory as a condition for conducting business in that territory.
3. This Article does not prevent a Party from adopting or maintaining:
(a) a measure inconsistent with paragraph 2 that is necessary to achieve 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; or
(b) a measure that it considers necessary for the protection of its essential security interests. That measure, if adopted or maintained, shall not be disputed by the other Party.
Article 12.12. Customs Duties
1. Each Party shall maintain its current practice of not imposing customs duties on electronic transmissions between the Parties.
2. The practice referred to in paragraph 1 is in accordance with the WTO Ministerial Decision (WT/MIN (24)/38), adopted on 2 March 2024, in relation to the Work Programme on Electronic Commerce.
3. Each Party may adjust its practice referred to in paragraph 1 with respect to any further outcomes in WTO Ministerial Decisions on customs duties on electronic transmissions within the framework of the Work Programme on Electronic Commerce.
4. The Parties shall review this Article in light of any further WTO Ministerial Decisions in relation to the Work Programme on Electronic Commerce.
5. For greater certainty, paragraph 1 does not preclude a Party from imposing taxes, fees, or other charges on electronic transmissions, provided that those taxes, fees, or charges are imposed in a manner consistent with this Agreement.
Article 12.13. Principles on Access to and Use of the Internet for Electronic Commerce
Subject to applicable laws and regulations, the Parties recognise that it is beneficial for consumers in their territories to be able to:
(a) access and use services and applications of a consumer’s choice available on the Internet, subject to reasonable network management; and
(b) connect the end-user devices of a consumer’s choice to the Internet.
Article 12.14. Source Code
1. A Party shall not require the transfer of, or access to, source code of software owned by a person of the other Party as a condition for the import, distribution, sale, or use of that software, or of products containing that software, in its territory.
2. This Article does not preclude a regulatory body or judicial authority of a Party from requiring a person of the other Party to preserve and make available the source code of software for a specific investigation, inspection, examination, enforcement action, or judicial proceeding (1), subject to safeguards against unauthorised disclosure.
Article 12.15. Open Government Data
1. The Parties recognise that facilitating public access to and use of government information fosters economic and social development, competitiveness, and innovation.
2. To the extent that a Party chooses to make government information, including data, available to the public, it shall endeavour to ensure that the information is in a machine-readable, open format and can be searched, retrieved, used, reused, and redistributed.
3. The Parties shall endeavour to cooperate to identify ways in which each Party can expand access to and use of government information, including data, that the Party has made public, with a view to enhancing and generating business opportunities, especially for small and medium-sized enterprises.
Article 12.16. Cyber Security
The Parties recognise the importance of:
(a) building and maintaining the capabilities of their national entities responsible for computer security incident response, including through exchange of best practices; and
(b) using existing collaboration mechanisms to cooperate on matters related to cyber security.
Chapter 13. INVESTMENT
Section A. Definitions
Article 13.1. Definitions
For the purposes of this Chapter:
algorithm means a defined sequence of steps, taken to solve a problem or obtain a result;
claimant means an investor of a Party that makes a claim under Article 13.25 (Submission of a Claim to Arbitration);
confidential information means confidential business information or information that is privileged or otherwise protected from disclosure under the law of a Party;
disputing parties means the claimant and the respondent Party;
disputing party means either the claimant or the respondent Party;
enterprise means an enterprise as defined in Article 1.5 (Initial Provisions and General Definitions - General Definitions) and a branch (1) of an enterprise;
existing means in effect on the date of entry into force of this Agreement;
ICSID means the International Centre for Settlement of Investment Disputes;
ICSID Additional Facility Rules means the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes in their most recent form;
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of other States done at Washington, D.C. on 18 March 1965;
intellectual property rights means copyright and related rights, trademark rights, rights in geographical indications, rights in industrial designs, patent rights, rights in layout designs of integrated circuits, rights in relation to protection of undisclosed information, and plant breeders’ rights;
investment means:
(a) any of the following:
(i) an enterprise;
(ii) a share, stock, or other form of equity participation in an enterprise, or any other kind of interest in an enterprise recognized under the domestic law of the Party;
(iii) a bond, debenture,or other debt instrument of an enterprise; (2)
(iv) a loan to an enterprise;
(v) an interest arising from the commitment of capital or other resources in the territory of a Party to economic activity in that territory, such as under a contract involving the presence of an investor’s property in the territory of the Party, including a turnkey or construction contract, a concession, or other similar contract;
(vi) intellectual property rights; and
(vii) any other tangible or intangible, moveable or immovable, property and related property rights;
(b) in each case shall involve the commitment of capital or other resources, the expectation of gain or profit, certain duration, or the assumption of risk; and
(c) for the purposesof this definition, “investment” does not mean:
(i) a claim to money that arises solely from:
(A) a commercial contract for the sale of a good or service by a national or enterprise in the territory of a Party to an enterprise in the territory of the other Party, or
(B) the extension of credit in connection with a commercial transaction, such as trade financing;
(ii) an order or judgment in a judicial or administrative action; or
(iii) any other claim to money, that does not involve the kinds of interests set out in sub-subparagraphs (a)(i) to (vii);
investor of a Party means a Party, or a national (3) or an enterprise of a Party, other than a branch, that seeks to make (4), is making, or has made an investment in the territory of the other Party. For the purposes of this definition, enterprise of a Party means:
(a) an enterprise that is constituted or organized under the law of that Party and that has substantial business activities in the territory of that Party. A determination of whether an enterprise has substantial business activities in the territory of a Party requires a case-by-case, fact-based inquiry; or
(b) an enterprise that is constituted or organised under the law of that Party, and is directly or indirectly owned or controlled by a national of that Party or by an enterprise mentioned under subparagraph (a);
New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958;
non-disputing Party means a Party that is not a disputing party to an investment dispute;
respondent Party means a Party against which a claim is made under Article 13.25 (Submission of a Claim to Arbitration);
third party funding means any funding or other equivalent support provided by a person who is not a disputing party in order to finance part or all of the cost of the proceedings including through a donation or grant, or in return for remuneration dependent on the outcome of the dispute;
Tribunal means an arbitration tribunal established under Section D (Investor-State Dispute Settlement); and
UNCITRAL Arbitration Rules means the arbitration rules of the United Nations Commission on International Trade Law, adopted by the United Nations General Assembly on 15 December 1976, as revised in 2010.
Section B. Investment Protections
Article 13.2. Scope
1. This Chapter applies to a measure adopted or maintained by a Party relating to:
(a) an investor of the other Party;
(b) a covered investment; and
(c) with respect to Article 13.5 (Regulatory Objectives) and Article 13.12 (Performance Requirements), an investment in the territory of that Party.
2. A Party’s obligations under this Chapter apply to a measure adopted or maintained by: (a) the central, regional, or other governments or authorities of that Party; and
(b) any person, including a state enterprise or any other body, when it exercises any governmental authority delegated to it by central, regional, or other governments or authorities of that Party.
3. This Chapter does not apply to:
(a) procurement by a Party;
(b) a subsidy or grant provided by a Party, including a government supported loan, guarantee, or insurance.
4. This Chapter does not bind a Party in relation to an act or fact that took place or a situation that ceased to exist before the date of entry into force of this Agreement.
Article 13.3. Relation to other Chapters
1. This Chapter does not apply to a measure adopted or maintained by a Party to the extent that it is covered by Chapter 8 (Trade in Services) or Chapter 10 (Financial Services).
2. Notwithstanding paragraph 1, this Chapter applies to a measure adopted or maintained by a Party relating to the supply of a service in its territory through commercial presence as defined in Article 8.1 (Trade in Services – Definitions) by a service supplier, to the extent that such a measure is covered by Article 13.2.1 (Scope).
3. A requirement of a Party that a service supplier of the other Party post a bond or other form of financial security as a condition for the cross-border supply of a service does not of itself make this Chapter applicable to a measure adopted or maintained by the Party relating to the cross-border supply of the service. This Chapter applies to a measure adopted or maintained by the Party relating to the posted bond or financial security, to the extent that the bond or financial security is a covered investment
4. In the event of any inconsistency between this Chapter and any other Chapter of this Agreement, the other Chapter shall prevail to the extent of the inconsistency, except that, where paragraph 2 applies, this Chapter prevails over Chapter 8 (Trade in Services).