(b) for Ukraine, the Antimonopoly Committee of Ukraine and includes a successor notified to the other Party through the Coordinators;
designated authority means:
(a) for Canada, the Assistant Deputy Minister for Tax Policy, Department of Finance and includes a successor notified to the other Party through the Coordinators; and
(b) for Ukraine, the State Tax Service of Ukraine and includes a successor notified to the other Party through the Coordinators;
information protected under its competition laws means:
(a) for Canada, information within the scope of Section 29 of the Competition Act, R.S.C. 1985, c. C-34, and includes any successor provision; and
(b) for Ukraine, information with restricted access according to Article 221 of the Law of Ukraine On the Antimonopoly Committee of Ukraine and includes any successor provision;
person engaged in a cultural industry means a person engaged in any of the following activities:
(a) the publication, distribution, or sale of books, magazines, periodicals, or newspapers in print or machine-readable form, but not including the sole activity of printing or typesetting any of the foregoing;
(b) the production, distribution, sale, or exhibition of film or video recordings;
(c) the production, distribution, sale, or exhibition of audio or video music recordings;
(d) the publication, distribution, or sale of music in print or machine-readable form; or
(e) radiocommunications in which the transmissions are intended for direct reception by the general public, and all radio, television, and cable broadcasting undertakings and all satellite programming and broadcast network services;
tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement; and
tax and taxation measure do not include:
(a) a customs duty as defined in Article 1.5 (Definitions of General Application); or
(b) a measure listed in exceptions (b), (c), or (d) of that definition.
Article 29.2. General Exceptions
1. For the purposes of Chapter 2 (National Treatment and Market Access), Chapter 3 (Rules of Origin and Origin Procedures), Chapter 4 (Trade Facilitation), Chapter 5 (Trade Remedies), Chapter 6 (Sanitary and Phytosanitary Measures), Chapter 7 (Technical Barriers to Trade), and Chapter 8 (Digital Trade), Article XX of the GATT 1994 is incorporated into this Agreement.
2. For the purposes of Chapter 8 (Digital Trade), Chapter 10 (Designated Monopolies and State-Owned Enterprises), Chapter 18 (Cross-border Trade in Services), Chapter 21 (Temporary Entry for Business Persons), and Chapter 22 (Telecommunications), paragraphs (a), (b), and (c) of Article XIV of the GATS are incorporated into this Agreement. (1)
3. The Parties understand that the measures referred to in Article XX(b) of the GATT 1994 and Article XIV(b) of the GATS include environmental measures necessary to protect human, animal, or plant life or health. The Parties recognize that the measures referred to in Article XX(b) of GATT 1994 and Article XIV(b) of the GATS include environmental measures taken by the Parties to address climate change. The Parties understand that Article XX(g) of the GATT 1994 applies to measures for the conservation of living and non-living exhaustible natural resources.
Article 29.3. National Security
1. This Agreement does not:
(a) require a Party to furnish or allow access to information if that Party determines that the disclosure of this information would be contrary to its essential security interests;
(b) prevent a Party from taking an action that it considers necessary to protect its essential security interests:
(i) relating to the traffic in arms, ammunition and implements of war and to such traffic and transactions in other goods, materials, services and technology undertaken directly or indirectly for the purpose of supplying a military or other security establishment;
(ii) taken in time of war or other emergency in international relations; or
(iii) relating to the implementation of national policies or international agreements respecting the non-proliferation of nuclear weapons or other nuclear explosive devices; or
(c) prevent a Party from fulfilling its obligations under the Charter of the United Nations for the maintenance of international peace and security.
Article 29.4. Taxation
1. Except as provided in this Article, this Agreement does not apply to a taxation measure.
2. This Agreement does not affect the rights and obligations of either Party under a tax convention. In the event of any inconsistency between this Agreement and a tax convention, that convention prevails to the extent of the inconsistency.
3. In the case of a tax convention between the Parties, if an issue arises as to whether an inconsistency exists between this Agreement and the tax convention, the issue shall be referred to the designated authorities of the Parties. The designated authorities of the Parties shall have six months from the date of referral of the issue to make a determination as to the existence and extent of any inconsistency. If those designated authorities agree, the period may be extended up to 12 months from the date of referral of the issue. No procedures concerning the measure giving rise to the issue may be initiated under Chapter 28 (Dispute Settlement) or Article 17.23 (Submission of a Claim to Arbitration) until the expiry of the six-month period, or any other period as may have been decided by the designated authorities. A panel or tribunal established to consider a dispute related to a taxation measure shall accept as binding a determination of the designated authorities of the Parties.
4. Notwithstanding paragraph 2:
(a) Article 2.3 (National Treatment) and other provisions of this Agreement as are necessary to give effect to that Article apply to taxation measures to the same extent as does Article III of the GATT 1994; and
(b) Article 2.9 (Customs Duties on Exports) applies to taxation measures.
5. Subject to paragraph 2:
(a) Article 20.3 (National Treatment) and Article 18.3 (National Treatment) apply to a taxation measure on income, capital gains, the taxable capital of corporations, or the value of an investment or property (2) (but not on the transfer of that investment or property), that relate to the purchase or consumption of particular services, except that this subparagraph does not prevent a Party from conditioning the receipt or continued receipt of an advantage that relates to the purchase or consumption of particular services on requirements to provide the service in its territory; and
(b) Article 17.6 (National Treatment), Article 17.7 (Most-Favoured-Nation Treatment), Article 18.3 (National Treatment), Article 18.4 (Most‑Favoured‑Nation Treatment), Article 20.3 (National Treatment) and Article 20.4 (Most-Favoured-Nation Treatment) apply to a taxation measure, other than a taxation measure on income, capital gains, the taxable capital of corporations, the value of an investment or property (3) (but not on the transfer of that investment or property), or taxes on estates, inheritances, gifts and generation-skipping transfers;
but nothing in the Articles referred to in subparagraphs (a) and (b) apply to:
(c) a most-favoured nation obligation with respect to an advantage accorded by a Party pursuant to a tax convention;
(d) a non-conforming provision of an existing taxation measure;
(e) the continuation or prompt renewal of a non-conforming provision of an existing taxation measure;
(f) an amendment to a non-conforming provision of an existing taxation measure to the extent that the amendment does not decrease its conformity, at the time of the amendment, with any of those Articles;
(g) the adoption or enforcement of a new taxation measure aimed at ensuring the equitable or effective imposition or collection of taxes, including a taxation measure that differentiates between persons based on their place of residence for tax purposes, provided that the taxation measure does not arbitrarily discriminate between persons, goods, or services of the Parties (4); or
(h) a provision that conditions the receipt or continued receipt of an advantage relating to the contributions to, or income of, a pension trust, pension plan, superannuation fund or other arrangement to provide pension, superannuation or similar benefits, on a requirement that the Party maintain continuous jurisdiction, regulation or supervision over that trust, plan, fund, or other arrangement.
6. Subject to paragraph 2, and without prejudice to the rights and obligations of the Parties under paragraph 4, paragraphs 2 and 3 of Article 17.12 (Performance Requirements), apply to a taxation measure.
7. Article 17.10 (Expropriation) applies to a taxation measure. However, no investor may invoke Article 17.10 (Expropriation) as the basis for a claim if it has been determined pursuant to this paragraph that the measure is not an expropriation. An investor that seeks to invoke Article 17.10 (Expropriation) with respect to a taxation measure must first refer to the issue of whether that taxation measure is not an expropriation of the designated authority of the Party of the investor and the designated authority of the respondent Party, at the time that it gives its notice of intent under Article 17.23 (Submission of a Claim to Arbitration). If the designated authorities decide not to consider the issue or, having decided to consider it, fail to decide that the measure is not an expropriation within a period of six months of the referral, the investor may submit its claim to arbitration under Article 17.23 (Submission of a Claim to Arbitration).
8. This Agreement does not require a Party to furnish or allow access to information the disclosure of which would be contrary to that Party's law protecting information concerning the taxation affairs of a taxpayer.
Article 29.5. Disclosure of Information
1. This Agreement does not require a Party to furnish or allow access to information that if disclosed would impede law enforcement, or would be contrary to the Party's law protecting the deliberative and policy-making processes of the executive branch of government at the cabinet level, personal privacy, or the financial affairs and accounts of individual customers of financial institutions.
2. In the course of a dispute settlement procedure under this Agreement:
(a) a Part required to furnish or allow access to information protected under its competition laws; and
(b) a competition authorit required to furnish or allow access to information that is privileged or otherwise protected from disclosure.
Article 29.6. Indigenous Peoples' Rights
This Agreement does not prevent Canada from adopting or maintaining a measure it considers necessary to fulfill its legal obligations to Aboriginal peoples, including those recognized and affirmed by section 35 of the Constitution Act, 1982, or those set out in self-government agreements between central or regional levels of government and Aboriginal peoples.
Article 29.7. Cultural Industries
This Agreement does not apply to a measure adopted or maintained by a Party with respect to a person engaged in a cultural industry except as specifically provided in Article 2.4 (Tariff Elimination on Imports).
Article 29.8. World Trade Organization Waivers
If a right or obligation in this Agreement duplicates a right or obligation under the WTO Agreement, a measure adopted by a Party in conformity with a waiver decision adopted by the WTO pursuant to Article IX of the WTO Agreement is deemed to be also in conformity with this Agreement.
Chapter 30. Final Provisions
Article 30.1. Transitional Provision from the 2017 Agreement
1. The Parties recognize the importance of a smooth transition from the 2017 Agreement to this Agreement.
2. Issues under consideration, including cooperation, documents or other work under development, by the Joint Commission or a committee, subcommittee or other body of the 2017 Agreement may be continued under any relevant body in this Agreement, subject to any decision by the Parties on whether and in what manner that continuation is to occur.
Article 30.2. Annexes, Appendices, and Footnotes
The Annexes, Appendices, and footnotes to this Agreement constitute integral parts of this Agreement.
Article 30.3. Review Clause
The Parties undertake to review this Agreement within five years of its entry into force, in light of further developments including within the framework of the WTO Agreement, and other agreements to which the Parties are party.
Article 30.4. Amendments
The Parties may agree, in writing, to amend this Agreement. An amendment shall enter into force after the Parties exchange written notifications certifying that they have completed their respective applicable internal requirements and procedures necessary for the entry into force of the amendment, on the date agreed by the Parties.
Article 30.5. Reservations and Unilateral Declarations
This Agreement shall not be subject to unilateral reservations or unilateral interpretive declarations.
Article 30.6. Entry Into Force
1. Each Party shall notify the other Party in writing of the completion of its domestic procedures required for the entry into force of this Agreement.
2. This Agreement shall enter into force on:
(a) the first day of the second month following receipt of the latter notification of the completion of the procedures for entry into force; or
(b) 1 January 2024,
whichever is later.
Article 30.7. Termination of this Agreement
1. This Agreement may be terminated by either Party by giving notice in writing of its intention to terminate to the other Party. The Agreement shall terminate six months after the date of receipt of that notice.
2. Notwithstanding paragraph 1, in the event that this Agreement is terminated, the provisions of Chapter 17 (Investment) shall continue to be effective for a period of 10 years after the date of termination of this Agreement in respect of investments made before that date.
Article 30.8. Termination of the 2017 Agreement
This Agreement terminates and replaces the Free Trade Agreement Between Canada and Ukraine, done at Kyiv on 11 July 2016.
Article 30.9. Suspension of other Agreements
1. The Agreement between the Government of Canada and the Government of Ukraine for the Promotion and Protection of Investments done at Ottawa on 24 October 1994 (the “FIPA”) shall be suspended from the date of entry into force of this Agreement and until such time as this Agreement is no longer in force.
2. Notwithstanding paragraph 1, the FIPA shall remain operative for a period of 10 years after the entry into force of this Agreement for the purpose of any breach of the obligations of the FIPA that occurred before the entry into force of this Agreement. During this period the right of an investor of a Party to submit a claim to arbitration concerning such a breach shall be governed by the relevant provisions of the FIPA.
Article 30.10. Accession
A non-Party may accede to this Agreement upon terms and conditions to be set out in an Agreement on Accession between the Parties and the non-Party. The Parties and the non-Party shall notify each other through diplomatic channels of the completion of the internal procedures necessary to approve the Agreement on Accession.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorized, have signed this Agreement.
Done in duplicate at , this day of 202__, in the English, French, and Ukrainian languages, each version being equally authentic.
__________________________________
FOR CANADA
__________________________________
FOR UKRAINE
Attachments
Annex I. Cross-Border Trade in Services and Investment Non-Conforming Measures
Annex I. Explanatory Note
1. The Schedule of a Party to this Annex sets out, pursuant to Articles 17.18 (Non‑Conforming Measures) and 18.7 (Reservations), a Party's existing measures that are not subject to some or all of the obligations imposed by:
(a) Article 17.6 (National Treatment) or 18.3 (National Treatment);
(b) Article 17.7 (Most-Favoured-Nation Treatment) or 18.4 (Most‑Favoured‑Nation Treatment);
(c) Article 17.12 (Performance Requirements);
(d) Article 17.13 (Senior Management and Boards of Directors); or
(e) Article 18.5 (Market Access).
2. Each Schedule entry sets out the following elements:
(a) Sector refers to the sector for which the entry is made;
(b) Sub-Sector, where referenced, refers to the specific subsector for which the entry is made;
(c) Obligations Concerned specifies the obligation(s) referred to in paragraph 1 that, pursuant to Articles 17.18 (Non-Conforming Measures) and 18.7 (Reservations), do not apply to the non-conforming aspects of the law, regulation, or other measure, as set out in paragraph 3;
(d) Level of Government indicates the level of government maintaining the scheduled measure(s);
(e) Measures identifies the laws, regulations, or other measures for which the entry is made. A measure cited in the Measures element:
(i) means the measure as amended, continued, or renewed as of the date of entry into force of this Agreement, and
(ii) includes any subordinate measure adopted or maintained under the authority of and consistent with the measure; and
(f) Description, as indicated in the introductory note for each Party's Schedule, either sets out the non-conforming measure or provides a general non-binding description of the measure for which the entry is made.
Annex I. Schedule of Canada
Introductory Notes
1. Description provides a general non-binding description of the measure for which the entry is made.
2. Obligations Concerned specifies the obligations referred to in Article 17.18 (Non-Conforming Measures) and Article 18.7 (Reservations) that do not apply to the listed measures.
3. In the interpretation of an entry, all elements of the entry shall be considered. An entry shall be interpreted in light of the relevant provisions of the Chapters against which the entry is taken. To the extent that:
(a) the Measures element is qualified by a liberalization commitment from the Description element, the Measures element as so qualified prevails over all other elements; and
(b) the Measures element is not so qualified, the Measures element prevails over other elements, unless a discrepancy between the Measures element and the other elements considered in their totality is so substantial and material that it would be unreasonable to conclude that the Measures element prevails, in which case the other elements prevail to the extent of that discrepancy.
Reservation I-C-1
Sector:
All Sectors
Sub-Sector:
Obligations Concerned:
National Treatment (Article 17.6)
Performance Requirements (Article 17.12)
Senior Management and Boards of Directors (Article 17.13)
Level of Government:
Central
Measures:
Investment Canada Act, R.S.C. 1985, c. 28 (1st Supp.)
Investment Canada Regulations, SOR/85-611
Description:
Investment
1. Except as set out in paragraphs 5 and 9, the Director of Investments will review a direct "acquisition of control", as defined in the Investment Canada Act, of a Canadian business by a WTO investor if the value of the Canadian business is not less than CAD 1.287 billion, adjusted in accordance with the applicable methodology in January of each subsequent year, starting in 2023, as set out in the Investment Canada Act.
2. Notwithstanding the definition of "investor of a Party" in Article 17.1 (Definitions), only WTO investors or entities controlled by WTO investors as provided for in the Investment Canada Act may benefit from the CAD 1.141 billion threshold.
3. Except as set out in paragraphs 5 and 9, the Director of Investments will review a direct "acquisition of control", as defined in the Investment Canada Act, of a Canadian business by a trade agreement investor if the value of the Canadian business is not less than CAD 1.931 billion, adjusted in accordance with the applicable methodology in January of each subsequent year, starting in 2023, as set out in the Investment Canada Act.
4. Notwithstanding the definition of "investor of a Party" in Article 17.1 (Definitions), only a trade agreement investor or an entity controlled by a trade agreement investor as provided for in the Investment Canada Act may benefit from the CAD 1.931 billion threshold.
5. The higher threshold in paragraphs 1 and 3 does not apply to a direct acquisition of control by a state-owned enterprise of a Canadian business. These acquisitions are subject to review by the Director of Investments if the value of the Canadian business is not less than CAD 512 million in 2023, adjusted in accordance with the applicable methodology in January of each subsequent year as set out in the Investment Canada Act.
6. An investment subject to review under the Investment Canada Act may not be implemented unless the Minister responsible for the Investment Canada Act advises the applicant that the investment is likely to be of net benefit to Canada. This determination is made in accordance with six factors described in the Investment Canada Act, summarized as follows:
(a) the effect of the investment on the level and nature of economic activity in Canada, including the effect: on employment; on the use of parts, components, and services produced in Canada; and on exports from Canada;
(b) the degree and significance of participation by Canadians in the investment;
(c) the effect of the investment on productivity, industrial efficiency, technological development, and product innovation in Canada;
(d) the effect of the investment on competition within an industry in Canada;
(e) the compatibility of the investment with national industrial, economic, and cultural policies, taking into consideration industrial, economic, and cultural policy objectives enunciated by the government or legislature of a province likely to be significantly affected by the investment; and