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 12.2. Scope and General Provisions
1. The Parties recognise the economic growth and opportunities provided by electronic commerce and the importance of frameworks that promote consumer confidence in electronic commerce and of facilitating its use and development.
2. This Chapter applies to measures adopted or maintained by a Party that affect trade by electronic means.
3. This Chapter does not apply:
(a) to government procurement; or
(b) except for Article 12.15 (Open Government Data), to information held or processed by or on behalf of a Party, or measures related to that information, including measures related to its collection.
4. For greater certainty, measures affecting the supply of a service delivered or produced electronically are subject to the obligations contained in the relevant provisions of:
(a) Chapter 8 (Trade in Services);
(b) Chapter 10 (Financial Services); and
(c) Chapter 13 (Investment),
including any exceptions or non-conforming measures set out in this Agreement that are applicable to those obligations.
5. To the extent that a measure referred to in paragraph 4 is adopted or maintained inaccordance with Article 8.7 (Trade in Services – Reservations), Article 10.10 (Financial Services – Non-Conforming Measures), Article 13.18 (Investment – Non-Conforming Measures and Exceptions), or any exception that is applicable to the obligations in Chapter 8 (Trade in Services), Chapter 10 (Financial Services), or Chapter 13 (Investment), it does not give rise to a violation of Article 12.10 (Cross-Border Transfer of Information by Electronic Means), Article 12.11 (Location of Computing Facilities), or Article 12.14 (Source Code).
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;