6. 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 7.
Rectifications
7. The following modifications to a Party's Schedule to Annex 16A 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 16A;
(c) the separation of a procuring entity listed in a Party's Schedule to Annex 16A into two or more procuring entities that are added to the procuring entities listed in the same Section of the Annex; and
(d) changes in website references.
Objection to Notification
8. If the other Party disputes that:
(a) a compensatory adjustment proposed under sub-paragraph 3(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 6(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 2 and 3 or shall be deemed to have agreed to the proposed modification.
9. Where a Party submits an objection pursuant to paragraph 8, it shall set out, as may apply, the reasons why it believes:
(a) the modification is not a change provided for in subparagraphs 6(a) or 6(b) and describe the effect of the proposed modification on the coverage provided for in the Chapter; and
(b) a compensatory adjustment proposed under subparagraph 3(c) is not adequate to maintain a level of coverage comparable to the coverage that existed prior to the modification.
Implementation of Modifications
10. The Joint Committee shall adopt a modification to the Schedule to Annex 16A in accordance with paragraphs 2 and 3 of Article 16.2 (Functions of the Joint Committee - Administrative and Institutional Provisions) to reflect any agreed modification.
Article 16.21. Facilitation of Participation by SMEs
1. The Parties recognise the important contribution that SMEs can make to economic growth and employment and the importance of facilitating the participation of SMEs in government procurement.
2. If a Party maintains a measure that provides preferential treatment for SMEs, the Party shall ensure that the measure, including the criteria for eligibility, is transparent
3. To facilitate participation by SMEs in covered procurement, each Party shall, to the extent possible and if appropriate:
(a) provide comprehensive procurement-related information that includes a definition of SMEs in a single electronic portal;
(b) make all tender documentation available free of charge;
(c) conduct procurement by electronic means or through other new information and communication technologies;
(d) consider the size, design, and structure of the procurement, including the use of subcontracting by SMEs;
(e) seek opportunities to simplify administrative processes; and
(f) require prompt payment by procuring entities, and that procuring entities encourage its use in subcontracting.
Article 16.22. Cooperation
1. The Parties recognise their shared interest in cooperating to promote international liberalisation of government procurement markets with a view to achieving enhanced understanding of their respective government procurement systems and to improving access to their respective markets.
2. The Parties shall endeavour to cooperate in matters such as:
(a) facilitating participation by suppliers in government procurement, in particular, with respect to SMEs;
(b) exchanging experiences and information, such as regulatory frameworks and best practices, including on the use and adoption of measures to promote environmental, social and labour considerations in government procurement;
(c) exchanging government procurement statistics and data;
(d) developing and expanding the use of electronic means in government procurement systems;
(e) institutional strengthening for the fulfilment of the provisions of this Chapter;
(f) encouraging greater participation by women in government procurement to the extent possible; and
(g) exchanging information relating to government procurement opportunities in each Party.
Chapter 17. COMPETITION POLICY AND CONSUMER PROTECTION
Article 17.1. Competition Law and Authorities
1. Each Party shall maintain national competition laws in their respective territories which:
(a) proscribe anti-competitive agreements;
(b) proscribe anti-competitive practices by entities that have substantial market power; and
(c) address mergers with substantial anti-competitive effects.
2. Each Party shall apply its national competition laws to all commercial activities in its territory regardless of nationality or governmental ownership. This does not preclude a Party from applying its national competition laws to commercial activities outside its borders that may have anti-competitive effects within its jurisdiction.
3. Each Party may provide for certain exemptions from the application of its national competition laws, provided that those exemptions are transparent and are based on public policy grounds.
4. Each Party shall maintain an operationally independent national competition authority responsible for the enforcement of its national competition laws.
5. Each Party shall enforce its national competition laws in a mamner that does not discriminate on the basis of nationality or governmental ownership.
Article 17.2. Procedural Fairness In Competition Law Enforcement
1. Each Party shall ensure that before it imposes a sanction or remedy against a person pursuant to its national competition law, it affords that person:
(a) information about the national competition authority's competition concerns;
(b) areasonable opportunity to be legally represented; and
(c) a reasonable opportunity to be heard and present evidence in its defence, except that a Party may provide for the person to be heard and present evidence within a reasonable time after it imposes an interim sanction or remedy.
2. Each Party shall maintain written procedures pursuant to which its national competition law investigations are conducted. If these investigations are not subject to definitive deadlines, each Party's national competition authorities shall endeavour to conduct their investigations within a reasonable time frame.
3. Each Party shall maintain rules of procedure and evidence that apply to proceedings conducted pursuant to its national competition law and to the determination of sanctions and remedies thereunder.
4. Each Party shall provide a person that is subject to the imposition of a sanction or remedy pursuant to that Party's national competition law with the opportunity to seek review of the sanction or remedy in a court or other independent tribunal established under that Party's law.
5. Each Party may authorise its national competition authorities to resolve civil or administrative matters voluntarily by consent of the authority and the person subject to the enforcement action. A Party may provide for such voluntary resolution to be subject to review by a court or independent tribunal or a public comment period before becoming final.
6. If a Party's national competition authority issues a public notice that reveals the existence of a pending or ongoing investigation, that authority shall not state and shall avoid implying in that notice that the person referred to in that notice has engaged in the alleged conduct or violated the Party's national competition law. (1)
7. Each Party shall provide for the protection of business confidential information, and other information treated as confidential under its law, obtained by its national competition authorities during the investigative process. If a Party's national competition authority uses or intends to use that information in a proceeding, the Party shall, if it is permissible under its law and as appropriate, provide a procedure to allow the person under investigation timely access to information that is necessary to prepare an adequate response.
8. Each Party shall ensure that its national competition authorities afford a person under investigation conducted pursuant to the national competition law of that Party reasonable opportunity to consult with those national competition authorities with respect to significant legal, factual or procedural issues that arise during the investigation.
Article 17.3. Private Rights of Action
1. 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 other independent tribunal for injury to that person's business or property caused by a violation of national competition law.
2. Recognising that a private right of action is an important supplement to the public enforcement of national competition law, each Party shall maintain measures that provide a private right of action, both independently and following a finding of violation by a national competition authority.
3. 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.
4. A Party may establish reasonable criteria for the exercise of any rights it creates or maintains in accordance with this Article.
Article 17.4. Transparency
1. The Parties recognise the value of making their competition enforcement policies as transparent as possible.
2. On request of a Party, the other Party shall make available to the requesting Party public information concerning:
(a) its national competition law enforcement policies and practices; and
(b) exemptions and immunities to its national competition laws.
3. Each Party shall ensure thata final decision pursuant to its national competition law is made in writing and sets out, in non-criminal matters, findings of fact and the reasoning, including legal and, if applicable, economic analysis, on which the decision is based.
4. Each Party shall further ensure that a final decision referred to in paragraph 3 and any order implementing that decision are published, or if publication is not practicable, are otherwise made available to the public. Each Party shall ensure that the version of the decision or order that is made available to the public does not include confidential information that is protected from public disclosure by its law.
Article 17.5. Consumer Protection
1. The Parties recognise the importance of consumer protection policy and enforcement to enhancing consumer welfare in the territories of the Parties.
2. Each Party shall maintain consumer protection laws and regulations that proscribe:
(a) misleading, deceptive and fraudulent commercial practices; and
(b) unconscionable conduct or unfair commercial practices, that cause harm, or potential harm, to consumers.
3. Each Party shall maintain laws and regulations that provide consumers with statutory rights in relation to goods and services supplied to them, which at a minimum allow for remedies when:
(a) goods are of unacceptable quality or are defective;
(b) goods are not as described;
(c) goods are not fit for their represented purpose; and
(d) services are not performed with appropriate care or skill.
4. The Parties further recognise the importance of improving awareness of and providing access to consumer redress mechanisms, including for consumers of a Party transacting with suppliers of the other Party.
5. The Parties recognise the benefits of dispute resolution mechanisms in facilitating the resolution of disputes between consumers and suppliers, including alternative dispute resolution mechanisms.
Article 17.6. Cooperation on Competition Policy and Consumer Protection
1. The Parties recognise the importance of cooperation and coordination 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. Such cooperation may include:
(a) notification by a Party to the other Party of its activities relating to enforcement of competition and consumer protection law that it considers may substantially affect the important interests of the other Party, as promptly as reasonably possible;
(b) exchange of information, including confidential information, between the Parties to foster understanding or to facilitate effective enforcement of competition and consumer protection law; and
(c) coordination of investigations that raise the same or related concerns relating to the enforcement of competition and consumer protection law.
2. 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. Technical cooperation activities may include:
(a) the exchange of information on the development and implementation of competition and consumer protection policy and law;
(b) the sharing of studies, reviews and research relating to competition and consumer protection law and policy; and
(c) the exchange of officials of policy agencies or competition and consumer protection authorities to deepen cooperation and knowledge sharing.
3. The Parties acknowledge the importance of cooperation and coordination internationally and the work of multilateral organisations in this area, including the Competition and Consumer Policy committees of the Organisation for Economic Co-operation and Development, the International Competition Network and the International Consumer Protection and Enforcement Network.
4. Any cooperation and coordination 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.
5. To implement the objectives of this Article, the Parties may enter into separate commitments or arrangements on cooperation and coordination which may provide for, among other things, enhanced information sharing including confidential information, and mutual assistance in competition and consumer law enforcement.
Article 17.7. Consultation
To foster understanding between the Parties, or to address specific matters that arise under this Chapter, a Party shall, on request of the other Party, enter into consultations with the requesting Party. In its request, the requesting Party shall indicate, if relevant, how the matter affects trade or investment between the Parties. The Party addressed shall promptly acknowledge any such request and accord full and sympathetic consideration to the concerns of the requesting Party.
Article 17.8. Non-Application of Dispute Settlement
Neither Party shall have recourse to dispute settlement under Chapter 30 (Dispute Settlement) for any matter arising under this Chapter.
Chapter 18. STATE-OWNED ENTERPRISES AND DESIGNATED MONOPOLIES
Article 18.1. Definitions
For the purposes of this Chapter:
"Arrangement" means the Arrangement on Officially Supported Export Credits, developed within the framework of the Organization for Economic Co-operation and Development ("OECD") and adopted by its Council on 30 June 2021, or a successor undertaking, whether developed within or outside of the OECD framework, that has been adopted by at least 12 original WTO Members that were Participants to the Arrangement as of January 1, 1979;
"commercial activities" means activities which an enterprise undertakes with an orientation toward profit-making, (1) 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 enterprise; (2)
"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;
"designate" means to establish, designate or authorise a monopoly, or to expand the scope of a monopoly to cover an additional good or service;
"designated monopoly" means a privately owned monopoly that is designated after the date of entry into force of this Agreement and any government monopoly that a Party designates or has designated;
"government monopoly" means a monopoly that is owned, or controlled through ownership interests, by a Party or by another government monopoly;
"independent pension fund" means an enterprise that is owned, or controlled through ownership interests, by a Party that:
(a) is engaged exclusively in the following activities:
(i) administering or providing a plan for pension, retirement, social security, disability, death or employee benefits, or any combination thereof, solely for the benefit of natural persons who are contributors to such a plan and their beneficiaries; or
(ii) investing the assets of these plans;
(b) has a fiduciary duty to the natural persons referred to in subparagraph (a)(i); and
(c) is free from investment direction from the government of the Party; (3)
"market" means the geographical and commercial market for a good or service;
"monopoly" means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of the grant;
"non-commercial assistance" (4) means assistance to a state-owned enterprise by virtue of that state-owned enterprise's government ownership or control, where:
(a) "assistance" means:
(i) direct transfers of funds or potential direct transfers of funds or liabilities, such as:
(A) grants or debt forgiveness;
(B) loans, loan guarantees, or other types of financing on terms more favourable than those commercially available to that enterprise; or
(C) equity capital inconsistent with the usual investment practice, including for the provision of risk capital, of private investors; or
(ii) goods or services other than general infrastructure on terms more favourable than those commercially available to that enterprise;
(b) "by virtue of that state-owned enterprise's government ownership or control" (5) means that the Party or any of the Party's state enterprises or state-owned enterprises:
(i) explicitly limits access to the assistance to the Party's state- owned enterprises;
(ii) provides assistance which is predominately used by the Party's state-owned enterprises;
(iii) provides a disproportionately large amount of the assistance to the Party's state-owned enterprises; or
(iv) otherwise favours the Party's state-owned enterprises through the use of its discretion in the provision of assistance;
"public service mandate" means a government mandate pursuant to which a state-owned enterprise makes available a service, directly or indirectly, to the general public in its territory; (6)
"sovereign wealth fund" means an enterprise owned, or controlled through ownership interests, by a Party that:
(a) serves solely as a special purpose investment fund or arrangement (7) for asset management, investment, and related activities, using financial assets of a Party; and
(b) is a Member of the International Forum of Sovereign Wealth Funds or endorses the Generally Accepted Principles and Practices ("Santiago Principles") issued by the International Working Group of Sovereign Wealth Funds, October 2008, or such other principles and practices as may be agreed to by the Parties, and includes any special purpose vehicles established solely for such activities described in subparagraph (a) wholly owned by the enterprise, or wholly owned by the Party but managed by the enterprise; and
"state-owned enterprise" means an enterprise that is principally engaged in commercial activities in which a Party:
(a) directly owns more than 50 per cent of the share capital;
(b) controls, through ownership interests, the exercise of more than 50 per cent of the voting rights; or
(c) holds the power to appoint a majority of members of the board of directors or any other equivalent management body.
Article 18.2. Scope (8)
1. This Chapter applies with respect to the activities of state-owned enterprises and designated monopolies of a Party that affect trade or investment between the Parties. (9)
2. Nothing in this Chapter shall prevent a central bank or monetary authority of a Party from performing regulatory or supervisory activities or conducting monetary and related credit policy and exchange rate policy.