2. The tribunal or official conducting the review referred to in paragraph 1 shall be independent of the official or office issuing the decision and shall have the competence to maintain, modify or reverse the determination, in accordance with the Party's law.
3. Before requiring a person to seek redress at a more formal or judicial level, each Party shall provide for an administrative level of appeal or review that is independent of the official or, if applicable, the office responsible for the original action or decision.
4. Each Party shall grant a person that has received an advance ruling pursuant to Article 4.8 (Advance Rulings for Tariff Classification) substantially the same right of review and appeal of determinations of advance rulings by its customs authority that the Party provides to importers in its territory.
Article 4.10. Penalties
Each Party shall ensure that its customs legislation provides that any penalty imposed for a breach of customs legislation or procedures is proportionate and non-discriminatory and, in its application, does not result in unwarranted delays.
Article 4.11. Confidentiality
1. Each Party shall, in accordance with its law:
(a) treat as strictly confidential information obtained under this Chapter that is by its nature confidential or that is provided on a confidential basis; and
(b) protect that information from disclosure that could prejudice the competitive position of the person providing the information.
2. If the Party receiving or obtaining the information referred to in paragraph 1 is required by its law to disclose this information, that Party shall notify the Party or person who provided the information.
3. Each Party shall ensure that information collected under this Chapter shall only be used for purposes related to the administration and enforcement of customs matters, except with the permission of the Party or person that provided the information.
4. A Party may allow information collected under this Chapter to be used in administrative, judicial, or quasi-judicial proceedings instituted for failure to comply with customs-related legislation implementing this Chapter. A Party shall notify the Party or person that provided the information in advance of such use.
Article 4.12. Cooperation
1. The Parties shall continue to cooperate in international fora, such as the WCO, to achieve mutually-recognised goals, including those set out in the WCO SAFE Framework of Standards to Secure and Facilitate Global Trade.
2. The Parties shall develop a technical cooperation program in customs matters under jointly decided terms as to the scope, timing and cost of cooperative measures.
3. The Parties shall cooperate:
(a) in the enforcement of their respective customs-related legislation implementing this Agreement;
(b) to the extent practicable and for purposes of facilitating the flow of trade between them, in customs matters such as the collection and exchange of statistics regarding the importation and exportation of goods, the harmonization of documentation used in trade and the standardization of data elements;
(c) to the extent practicable, to harmonize customs laboratories' methods and the exchange of information and personnel between the customs laboratories;
(d) in the development of effective mechanisms for communicating with the trade and business communities; and
(e) in such other matters as the Parties may decide.
4. If a Party has reasonable grounds to suspect that an offence related to a fraudulent claim for preferential tariff treatment pursuant to this Agreement has occurred, it may request the other Party to provide information pertaining to the offence, including:
(a) the name and address of persons and companies relevant to the investigation of the offence;
(b) shipping information relevant to the offence;
(c) customs clearance and accounting records or equivalent records for goods or materials imported into the territory of the other Party;
(d) information related to the sourcing of materials, including indirect materials used in the production of goods exported from the territory of the other Party; and
(e) information related to production capacity of an exporter or producer who has exported goods to the territory of the other Party.
5. If a Party makes a request pursuant to paragraph 4, it shall:
(a) make its request in writing;
(b) specify the grounds for suspicion of a fraudulent claim for preferential tariff treatment pursuant to this Agreement and the purposes for which the information is sought; and
(c) identify the requested information with sufficient specificity for the other Party to locate and provide the information.
6. Following the receipt of a request for information pursuant to paragraphs 4 and 5, a Party shall provide relevant information subject to its law.
7. Officials of a Party may, with the consent of the other Party, contact or visit an exporter, supplier or producer in the territory of the other Party in order to obtain information to further an investigation related to a suspected fraudulent claim for preferential tariff treatment made pursuant to this Agreement.
8. Each Party shall, when possible on its own initiative, provide the other Party with information relating to fraudulent claims for preferential tariff treatment made pursuant to this Agreement.
9. Nothing in this Chapter shall be construed to require a Party to furnish or to allow access to information the disclosure of which would impede law enforcement or would be contrary to the Party's law protecting personal privacy.
10. If a Party declines or postpones sharing the information requested by the other Party pursuant to this Article, the Party shall provide reasons to the other Party.
Article 4.13. Future Work Program
1. With the objective of developing further steps to facilitate trade under this Agreement, the Parties shall, as appropriate, identify and submit for consideration by the Joint Commission new measures aimed at facilitating trade between the Parties.
2. The Parties shall regularly review relevant international initiatives on trade facilitation, including the Compendium of Trade Facilitation Recommendations, developed by the United Nations Conference on Trade and Development and the United Nations Economic Commission for Europe, to identify areas in which further joint action would facilitate trade between the Parties and promote shared multilateral objectives.
Chapter 5. Trade Remedies
Section A. Definitions
Article 5.1. Definitions
For the purposes of this Chapter:
Agreement on Safeguards means the WTO Agreement on Safeguards, contained in Annex 1A to the WTO Agreement;
Anti-Dumping Agreement means the WTO Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, contained in Annex 1A to the WTO Agreement; and
SCM Agreement means the WTO Agreement on Subsidies and Countervailing Measures, contained in Annex 1A to the WTO Agreement.
Article B. Global Safeguards and Anti-Dumping and Countervailing Measures
Article 5.2. Article XIX of the GATT 1994 and the Agreement on Safeguards
Each Party retains its rights and obligations under Article XIX of the GATT 1994 and the Agreement on Safeguards, which exclusively govern global safeguard actions including the resolution of a dispute with respect to those matters.
Article 5.3. Relation to other Agreements
1. Each Party shall apply anti-dumping and countervailing measures in accordance with Article VI of the GATT 1994, the Anti-Dumping Agreement and the SCM Agreement.
2. This Section is not subject to Chapter 28 (Dispute Settlement).
Article 5.4. Transparency
1. A Party shall ensure, after an imposition of provisional measures, and in any case, before a final determination is made, full and meaningful disclosure of all essential facts under consideration which form the basis for the decision whether to apply final measures. This is without prejudice to Article 6.5 of the Anti-Dumping Agreement and Article 12.4 of the SCM Agreement.
2. Provided that it does not unnecessarily delay the conduct of the investigation, each interested party in an anti-dumping or countervailing investigation (1) shall be granted a full opportunity to defend its interests.
Chapter 6. Sanitary and Phytosanitary Measures
Article 6.1. Relation to other Agreements
1. The Parties affirm their rights and obligations under the SPS Agreement.
2. The Parties shall use the WTO dispute settlement procedures for any formal disputes regarding sanitary and phytosanitary measures.
Article 6.2. Scope and Coverage
This Chapter applies to all sanitary and phytosanitary measures that may, directly or indirectly, affect trade between the Parties.
Article 6.3. Sanitary and Phytosanitary Contact Points
1. Each Party shall designate a Contact Point to facilitate communication on sanitary and phytosanitary trade-related matters and share the Contact Point information with the other Party.
2. The Contact Point is responsible for communications relating to sanitary and phytosanitary issue prevention and resolution.
Article 6.4. Sanitary and Phytosanitary Issue Prevention and Resolution
1. The Parties shall work expeditiously to resolve any specific sanitary or phytosanitary trade-related matters. The Parties shall give priority to resolving sanitary and phytosanitary issues through discussion between regulatory officials.
2. The Parties shall avail themselves of every means to prevent and resolve issues, including the use of technology (such as teleconference or videoconference) and opportunities that may arise at international forums.
3. At the request of a Contact Point, the Parties shall meet as soon as possible to resolve any specific sanitary or phytosanitary trade-related matters. Unless the Parties decide otherwise, they shall meet within 45 days of the request, through the use of technology (such as teleconference or videoconference) or in person.
Chapter 7. Technical Barriers to Trade
Article 7.1. Definitions
For the purposes of this Chapter:
TBT Agreement means the WTO Agreement on Technical Barriers to Trade; and
TBT Committee means the WTO Committee on Technical Barriers and Trade.
Article 7.2. WTO Agreement on Technical Barriers to Trade
The TBT Agreement, excluding Articles 10, 11, 12, 13, 14.1, 14.4 and 15, is hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 7.3. Scope
1. This Chapter applies to the preparation, adoption, and application of standards, technical regulations, and conformity assessment procedures of national governmental bodies that may affect the trade in goods between the Parties.
2. This Chapter does not apply to:
(a) a purchasing specification prepared by a governmental body for production or consumption requirements of a governmental body; or
(b) a sanitary or phytosanitary measure as defined in Annex A of the SPS Agreement.
Article 7.4. Joint Cooperation
1. 1.The Parties shall endeavour to strengthen their cooperation in the areas of standards, technical regulations, accreditation, conformity assessment procedures, and metrology in order to facilitate trade between the Parties.
2. Further to paragraph 1, the Parties shall endeavour to identify, develop and promote bilateral initiatives regarding standards, technical regulations, accreditation, conformity assessment procedures and metrology that are appropriate for particular issues or sectors. These initiatives may include:
(a) regulatory or technical cooperation programs directed at reaching effective and full compliance with the obligations of this Chapter and the TBT Agreement;
(b) initiatives to develop common views on good regulatory practices, such as transparency and the use of equivalency and regulatory impact assessment; and
(c) the use of mechanisms to facilitate the acceptance of the results of conformity assessment procedures conducted in the other Party's territory.
3. A Party shall give consideration to a reasonable sector-specific proposal made by the other Party for further cooperation under this Chapter.
Article 7.5. International Standards
1. Each Party shall use relevant international standards, guides and recommendations as a basis for their technical regulations and conformity assessment procedures in accordance with Articles 2.4 and 5.4 of the TBT Agreement.
2. Each Party shall determine whether an international standard, guide or recommendation exists within the meaning of Articles 2 or 5 or Annex 3 of the TBT Agreement, based on whether the standard, guide or recommendation in question was developed by a standardizing body that observes the principles set out in the Decisions and Recommendations adopted by the WTO Committee on Technical Barriers to Trade since 1 January 1995, G/TBT/1/Rev.9, as may be revised, issued by the TBT Committee.
Article 7.6. Conformity Assessment
1. The Parties shall cooperate by encouraging their respective conformity assessment bodies, including accreditation bodies, to participate in cooperation arrangements that promote the mutual acceptance of conformity assessment results.
2. Each Party shall recognize conformity assessment bodies located in the territory of the other Party on conditions no less favorable than those that it applies for the recognition of conformity assessment bodies in its own territory. A Party shall not require conformity assessment bodies located in the territory of the other Party to establish a legal or physical presence in its own territory or that a separate agreement be concluded between the Parties as a pre-condition for the recognition of the other Party's conformity assessment bodies.
3. Notwithstanding paragraph 2, each Party shall consider a request to develop and implement the mutual recognition of conformity assessment bodies with respect to radio and terminal telecommunications equipment.
4. If a Party recognizes an accreditation body established in the territory of the other Party as competent to accredit conformity assessment bodies as having the competence to assess conformity with the Party's technical regulations, the Party shall apply for the recognition of those conformity assessment bodies, on conditions that are no less favourable than those applied for the recognition of its accredited conformity assessment body located in the territory of the Party.
5. Each Party is encouraged to recognize as competent to accredit conformity assessment bodies an accreditation body established in the territory of the other Party that is a signatory to the International Laboratory Accreditation Cooperation Mutual Recognition Arrangement; a signatory to the International Accreditation Forum Multilateral Recognition Agreement; or a signatory to, and for relevant accreditation scopes covered under, the European Accreditation Multilateral/Bilateral Agreement.
6. With respect to paragraph 4, each Party recognizes that it may apply additional procedures to verify the competence of an accredited conformity assessment body if:
(a) the Party applies conditions for the recognition of conformity assessment bodies that supplement international standards, including conditions with respect to the accreditation of those bodies; and
(b) the Party requires assurance that a conformity assessment body is technically capable to assess whether products fulfill the requirements of a particular standard or technical regulation.
7. Each Party shall take reasonable measures to ensure that accreditation bodies established in its territory accredit conformity assessment bodies established in the territory of the other Party under conditions no less favourable than the conditions applied to conformity assessment bodies located in its territory. A Party may not take measures that limit or discourage the ability of accreditation bodies established in its territory from accrediting conformity assessment bodies established in the territory of the other Party, under conditions no less favourable than those applied to the accreditation of conformity assessment bodies in its own territory.
8. Each Party shall accept the results of conformity assessment procedures conducted by conformity assessment bodies located in the other Party's territory, which have been recognized by the other Party, under conditions no less favourable than those conditions applied to the acceptance of the results of conformity assessment procedures conducted by recognized conformity assessment bodies in its territory.
9. The Parties shall exchange information on their respective conditions for the recognition of conformity assessment bodies, including applicable accreditation requirements and procedures that a conformity assessment body must fulfill to apply for recognition.
10. If a Party recognizes a conformity assessment body in the territory of the other Party, it shall promptly inform the other Party that it recognizes that conformity assessment body and of the scope of the body's accreditation.
11. Nothing in this agreement prevents each Party from retaining the powers established under their respective domestic laws to take all permissible measures with respect to products that may compromise the health or safety of persons in its respective territory, or which otherwise fail to conform to their respective technical regulations.
12. If a Party does not accept the results of a conformity assessment procedure conducted by a recognized conformity assessment body in the territory of the other Party, it shall, on the request of the other Party, provide the reasons for its decision.
13. Nothing in this Chapter prevents a Party from undertaking conformity assessment in relation to specific products solely by government bodies that are located in its territory, subject to the Parties' obligations under the TBT Agreement.
Article 7.7. Transparency
1. The obligations in this Article supplement those set out in Chapter 15 (Transparency, Anti-Corruption and Responsible Business Conduct). In the event of an inconsistency between this Article and the obligations in Chapter 15, this Article prevails.
2. Each Party shall ensure that transparency procedures regarding the development of technical regulations and conformity assessment procedures allow interested persons to participate at an early appropriate stage, when amendments may be introduced and comments may be taken into account, unless urgent problems of safety, health, environmental protection or national security arise or threaten to arise. If a consultation process for the development of technical regulations and conformity assessment procedures is open to the public, a Party shall permit persons of the other Party to participate on terms no less favourable than those accorded to its own persons.
3. Each Party shall recommend that standardization bodies in its territory observe paragraph 2 in the consultation processes for the development of standards or voluntary conformity assessment procedures.
4. Each Party shall allow a period of at least 60 days following its notification to the WTO's Central Registry of Notifications of proposed technical regulations and conformity assessment procedures for the public and the other Party to provide written comments, unless urgent problems of safety, health, environmental protection or national security arise or threaten to arise.
5. At the time a Party submits its notification of technical regulations and conformity assessment procedures to the WTO Central Registry of Notifications in accordance with the TBT Agreement, it shall include an electronic link to, or a copy of, the full text of the document.
6. Each Party shall, at the request of the other Party, provide its responses or a summary of its responses, to significant comments it receives.
7. Each Party, at the request of the other Party, shall provide information regarding the objectives of, and rationale for, a technical regulation or conformity assessment procedure that the Party has adopted or is proposing to adopt.
8. If a Party does not accept a technical regulation of the other Party as equivalent to its own, it shall explain its decision at the request of the other Party. The Parties recognize that it may be necessary to develop common views, methods, and procedures to facilitate the use of equivalency.
9. The Parties shall ensure that all adopted technical regulations and conformity assessment procedures are published on official websites that are publicly available without charge.
10. If a Party, at a port of entry, detains a good imported from the territory of the other Party on the basis that the good may not comply with a technical regulation, it shall immediately notify the importer of the reasons for the detention of the good.
11. Any information that is provided at the request of a Party under this Chapter shall be provided in print or electronically within a reasonable period of time. The Party receiving the request shall endeavour to respond to the request within 60 days.
Article 7.8. Contact Points
1. The Contact Points are:
(a) in the case of Canada, the Department of Foreign Affairs, Trade and Development, or its successor; and
(b) in the case of Ukraine, Ministry of Economy of Ukraine, or its successor.
2. The Contact Points are responsible for communications related to matters that arise under this Chapter. Those communications include:
(a) the implementation and administration of this Chapter;
(b) issues related to the development, adoption or application of standards, technical regulations, or conformity assessment procedures, under this Chapter or the TBT Agreement;
(c) the exchange of information on standards, technical regulations, or conformity assessment procedures;
(d) the exchange of information pursuant to Article 7.6.9 (Conformity Assessment) and to Articles 7.7.6 through 7.7.8 and Article 7.7.11 (Transparency); and
(e) joint cooperation by the Parties, pursuant to Article 7.4.
3. A Contact Point is responsible for communication with the relevant institutions and persons in its territory as necessary to carry out its functions. The Contact Points may communicate by written, electronic, video-conference, or other means decided by the Parties.
Chapter 8. Digital Trade
Article 8.1. Definitions
For the purposes of this Chapter:
algorithm means a defined sequence of steps, taken to solve a problem or obtain a result;
computing facility means a computer server or storage device for processing or storing information for commercial use;
digital product means a computer program, text, video, image, sound recording, or other product that is digitally encoded, produced for commercial sale or distribution, and that can be transmitted electronically;
electronic address means an address used in connection with the transmission of an electronic message to an electronic mail account, instant messaging account, telephone account, or any similar account;
electronic authentication means the process or act of verifying the identity of a party to an electronic communication or transaction and ensuring the integrity of an electronic communication;
electronic message means a message sent by any means of telecommunication, including a text, sound, voice, or image message;
electronic signature means data in electronic form that is in, affixed to, or logically associated with, an electronic document or message, and that may be used to identify the signatory in relation to the electronic document or message and indicate the signatory's approval of the information contained in the electronic document and message;
commercial electronic message means an electronic message in any form intended to directly or indirectly promote goods, works, or services, or the business reputation of a person engaged in an economic or independent professional activity;
enterprise means an entity constituted or organized under applicable law, whether or not for profit, and whether privately-owned or governmentally-owned or controlled, including a corporation, trust, partnership, sole proprietorship, joint venture, association or similar organization, and a branch of an enterprise;
government data means data held by the central government, disclosure of which is not restricted under domestic law, and which a Party makes digitally available for public access and use;
metadata means structural or descriptive information about data, such as content, format, source, rights, accuracy, provenance, frequency, periodicity, granularity, publisher or responsible party, contact information, method of collection, and context;
personal data means information relating to an identified or identifiable natural person;
unsolicited commercial electronic message means an electronic message that is sent for commercial or marketing purposes to an electronic address without the consent of the recipient or against the explicit rejection of the recipient;
significant harm includes bodily harm, humiliation, damage to reputation or relationships, loss of employment, business or professional opportunities, financial loss, identity theft, negative effects on the credit record, and damage to or loss of property.
Article 8.2. Scope
1. This Chapter applies to measures adopted or maintained by a Party that affect trade by electronic means.
2. This Chapter does not apply to: