(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 other principles and practices as may be agreed to by the Parties;
and includes any special purpose vehicles established solely for the 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, and 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 10.2. Scope
1. This Chapter applies with respect to the activities of state-owned enterprises, state enterprises, or designated monopolies of a Party that affect trade or investment between Parties within the free trade area.
2. This Chapter does not apply to:
(a) the regulatory or supervisory activities, or monetary and related credit policy and exchange rate policy, of a central bank or monetary authority of a Party;
(b) the regulatory or supervisory activities of a financial regulatory body of a Party, including a non-governmental body, such as a securities or futures exchange or market, clearing agency, or other organization or association, that exercises regulatory or supervisory authority over financial services suppliers; or
(c) activities undertaken by a Party or one of its state enterprises or state‑owned enterprises for the purpose of the resolution of a failing or failed financial institution or any other failing or failed enterprise principally engaged in the supply of financial services.
3. This Chapter does not apply to a sovereign wealth fund of a Party.
4. This Chapter does not apply to:
(a) an independent pension fund of a Party; or
(b) an enterprise owned or controlled by an independent pension fund of a Party.
5. This Chapter does not apply to government procurement.
6. Articles 10.3, 10.4, and 10.6 do not apply to a service supplied in the exercise of governmental authority. For the purposes of this paragraph, "a service supplied in the exercise of governmental authority" has the same meaning as in the GATS, including the meaning in the Financial Services Annex if applicable.
7. Articles 10.3 and 10.4 do not apply to the extent that a Party's state-owned enterprise or designated monopoly makes purchases and sales of goods or services pursuant to:
(a) any existing non-conforming measure that the Party maintains, continues, renews, or amends in accordance with Article 17.18(1) (Non-Conforming Measures), Article 18.7(1) (Reservations), or Article 20.10(1) (Non-Conforming Measures), as set out in its Schedule to Annex I or in Section A of its Schedule to Annex III; or
(b) any non-conforming measure that the Party adopts or maintains with respect to sectors, subsectors, or activities in accordance with Article 17.18(2) (Non-Conforming Measures), Article 18.7(2) (Reservations), or Article 20.10(2) (Non-Conforming Measures), as set out in its Schedule to Annex II or in Section B of its Schedule to Annex III.
Article 10.3. Designated Monopolies
1. This Chapter does not prevent a Party from maintaining or designating a monopoly.
2. Each Party shall promptly notify the other Party or publish on an official website the designation of a monopoly or expansion of the scope of an existing monopoly and the terms of its designation.
3. Each Party shall ensure that a privately owned monopoly that it designates or a government monopoly that it maintains or designates:
(a) acts in a manner that is consistent with the Party's obligations under this Agreement whenever the monopoly exercises regulatory, administrative, or other governmental authority that the Party has delegated to it in connection with the monopoly good or service, such as the power to grant an import or export licence, approve a commercial transaction, or impose a quota, fee, or other charge;
(b) acts solely in accordance with commercial considerations in its purchase or sale of the monopoly good or service in the relevant market, including with regard to price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale, except to fulfil any terms of its designation that are not inconsistent with subparagraphs (c), (d), or (e);
(c) in its purchase of the monopoly good or service:
(i) accords to a good or service supplied by an enterprise of the other Party treatment no less favourable than it accords to a like good or a like service supplied by enterprises of the Party or of any non‑Party; and
(ii) accords to a good or service supplied by an enterprise that is a covered investment in the Party's territory treatment no less favourable than it accords to a like good or a like service supplied by enterprises in the relevant market in the Party's territory that are investments of investors of the Party or of any non-Party; and
(d) in its sale of the monopoly good or service:
(i) accords to an enterprise of the other Party treatment no less favourable than it accords to enterprises of the Party or of any non‑Party; and
(ii) accords to an enterprise that is a covered investment in the Party's territory treatment no less favourable than it accords to enterprises in the relevant market in the Party's territory that are investments of investors of the Party or of any non-Party; and
(e) does not use its monopoly position to engage in, either directly or indirectly, including through its dealings with its parent, subsidiaries, or other entities the Party or the designated monopoly owns, anticompetitive practices in a non-monopolized market in its territory that negatively affect trade or investment between the Parties.
4. Paragraphs 3(c) and 3(d) do not preclude a designated monopoly from:
(a) purchasing or selling goods or services on different terms or conditions including those relating to price; or
(b) refusing to purchase or sell goods or services;
provided that the differential treatment or refusal is undertaken in accordance with commercial considerations. For greater certainty, paragraph 4 does not allow a designated monopoly to violate a Party's domestic laws.
Article 10.4. State-Owned Enterprises
1. This Agreement does not prevent a Party from maintaining or establishing a state enterprise or a state-owned enterprise.
2. Each Party shall ensure that a state enterprise or a state-owned enterprise acts in a manner that is consistent with the Party's obligations whenever the enterprise exercises a regulatory, administrative, or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant a licence, approve a commercial transaction, or impose a quota, fee, or other charge.
3. Each Party shall ensure that each of its state-owned enterprises, when engaging in commercial activities in its sale of a good or service, accords to an enterprise that is a covered investment in the Party's territory treatment no less favourable than it accords to enterprises in the relevant market in the Party's territory that are investments of investors of the Party.
4. Paragraph 3 does not preclude a state-owned enterprise from:
(a) selling goods or services on different terms or conditions including those relating to price; or
(b) refusing to sell goods or services;
provided that the differential treatment or refusal is undertaken in accordance with commercial considerations. For greater certainty, paragraph 4 does not allow a state‑owned enterprise to violate a Party's domestic laws.
Article 10.5. Courts and Administrative Bodies
1. Each Party shall provide its courts with jurisdiction over civil claims against an enterprise owned or controlled through ownership interests by a foreign government based on a commercial activity carried on in its territory. This paragraph does not preclude a Party from providing its courts with jurisdiction over claims against enterprises owned or controlled through ownership interests by a foreign government other than those claims referred to in this paragraph. This paragraph does not require a Party to provide jurisdiction over those claims if it does not provide jurisdiction over similar claims against enterprises that are not owned or controlled through ownership interests by a foreign government.
2. Each Party shall ensure that any administrative body that the national government of a Party establishes or maintains that regulates a state-owned enterprise exercises its regulatory discretion in an impartial manner with respect to enterprises that it regulates, including enterprises that are not state-owned enterprises. The impartiality with which an administrative body exercises its regulatory discretion is to be assessed by reference to a pattern or practice of that administrative body.
Article 10.6. Transparency
1. On the written request of a Party, the other Party shall provide within a reasonable time the following information in writing concerning a state-owned enterprise or a government monopoly, provided that the request includes an explanation of how the activities of the entity may be affecting trade or investment between the Parties:
(a) the percentage of shares that the Party, its state-owned enterprises, or designated monopolies cumulatively own, and the percentage of votes that they cumulatively hold, in the entity;
(b) a description of any special shares or special voting or other rights that the Party, its state-owned enterprises, or designated monopolies hold, to the extent these rights are different than the rights attached to the general common shares of the entity;
(c) the government titles of any government official serving as an officer or member of the entity's board of directors;
(d) the entity's annual revenue and total assets over the most recent three year period for which information is available;
(e) any exemptions and immunities from which the entity benefits under the Party's law; and
(f) any additional information regarding the entity that is publicly available, including annual financial reports and third-party audits, and is sought in the written request.
2. When a Party provides written information pursuant to a request under this Article and informs the requesting Party that it considers the information to be confidential, the requesting Party shall not disclose the information without the prior consent of the Party providing the information.
Article 10.7. Technical Cooperation
1. The Parties shall, where appropriate and subject to available resources, engage in mutually agreed technical cooperation activities, including:
(a) exchanging information regarding Parties' experiences in improving the corporate governance and operation of their state-owned enterprises;
(b) sharing best practices on policy approaches to ensure a level playing field between state-owned and privately owned enterprises, including policies related to competitive neutrality; and
(c) organizing international seminars, workshops, or any other appropriate forum for sharing technical information and expertise related to the governance and operations of state-owned enterprises.
Article 10.8. Contact Points
Each Party shall designate a Contact Point on State-Owned Enterprises and Designated Monopolies and notify the other Party to facilitate communications between the Parties on any matter covered by this Chapter.
Article 10.9. Exceptions
1. Articles 10.3 and 10.4 do not:
(a) prevent the adoption or enforcement by a Party of measures to respond temporarily to a national or global economic emergency; or
(b) apply to a state-owned enterprise with respect to which a Party has adopted or enforced measures on a temporary basis in response to a national or global economic emergency, for the duration of that emergency.
2. Article 10.4(3) does not apply with respect to the supply of financial services by a state-owned enterprise pursuant to a government mandate if that supply of financial services:
(a) supports exports or imports, provided that these services are:
(i) not intended to displace commercial financing; or
(ii) offered on terms no more favourable than those that could be obtained for comparable financial services in the commercial market. In circumstances in which no comparable financial services are offered in the commercial market:
(A) for the purposes of paragraphs 2(a)(ii) and 2(b)(ii), the state-owned enterprise may rely as necessary on available evidence to establish a benchmark of the terms on which those services would be offered in the commercial market; and
(B) for the purposes of paragraphs 2(a)(i) and 2(b)(i), the supply of the financial services must be deemed not to be intended to displace commercial financing;
(b) supports private investment outside the territory of the Party, provided that these services are:
(i) not intended to displace commercial financing, or
(ii) offered on terms no more favourable than those that could be obtained for comparable financial services in the commercial market; or
(c) is offered on terms consistent with the Arrangement, provided that it falls within the scope of the Arrangement.
3. Articles 10.3, 10.4, 10.6, and 10.8 do not apply to a state-owned enterprise or designated monopoly if in any one of the three previous consecutive fiscal years, the revenue derived from the commercial activities of the state-owned enterprise or designated monopoly was less than a threshold amount which must be calculated in accordance with Annex 10-A (Threshold Calculation).
4. If a Party invokes the exception in paragraph 3 during consultations under Article 28.5 (Consultations), the Parties should exchange and discuss available evidence concerning the revenue of the state-owned enterprise or the designated monopoly derived from the commercial activities during the three previous consecutive fiscal years in an effort to resolve during the consultations any disagreement regarding the application of this exception.
Chapter 11. Government Procurement
Article 11.1. Incorporation and Application of Certain Provisions of the GPA 2012
1. Articles I to IV, VI to XV, XVI(1) to XVI(3), and XVII to XVIII set forth in the Annex to the Protocol Amending the Agreement on Government Procurement, done at Geneva on 30 March 2012, (“GPA 2012”) are incorporated into and made part of this Agreement.
2. The articles of the GPA 2012 incorporated into this Agreement under paragraph 1, as well as Articles 11.2, 11.3, 11.4 and 11.5, shall apply to the Parties’ annexes to their Market Access Schedule for this Chapter.
3. Further to Article 1.4 (Reference to Other Agreements), amendments to the articles of the GPA 2012 incorporated into this Agreement under paragraph 1 are also incorporated into this Agreement, except as decided by the Parties.
Article 11.2. Environmental, Socio-Economic, and Labour-related Considerations
1. The Parties recognize the role of government procurement in:
(a) advancing environmental and climate change objectives, including those set out in the Paris Agreement, done in Paris on 12 December 2015;
(b) creating opportunities for socially or economically disadvantaged groups; and
(c) promoting internationally recognized labour principles and rights, including those set out in the International Labour Organization Declaration on Fundamental Principles and Rights at Work (1998), as amended in 2022.
2. For greater certainty, a Party, including its procuring entities, may take into account environmental, socio-economic, or labour-related considerations in the procurement process, including through conditions for participation, technical specifications, or evaluation criteria, provided that those considerations are consistent with Article IV(1) and (2) of the GPA 2012 and do not constitute an unnecessary obstacle to international trade.
Article 11.3. Ensuring Integrity In Procurement Practices
1. Each Party shall ensure that criminal, civil, or administrative measures exist to address corruption, fraud, and other wrongful acts in its government procurement.
2. The criminal, civil, or administrative measures may include procedures to debar, suspend, or declare ineligible from participation in a Party’s procurements, for a stated period of time, a supplier that the Party has determined to have engaged in corruption, fraud, or other wrongful acts relevant to a supplier’s eligibility to participate in the Party’s government procurement.
3. Each Party shall adopt or maintain measures to address potential conflicts of interest on the part of those engaged in or having influence over a procurement.
Article 11.4. Facilitation of Participation by Small and Medium Sized Enterprises
1. The Parties recognize the important contribution that small and medium sized enterprises (SMEs) can make to economic growth and employment and, accordingly, the importance of facilitating the participation of SMEs in government procurement.
2. To facilitate participation by SMEs in covered procurement, each Party shall, to the extent possible and if appropriate:
(a) ensure that information on how to participate in government procurement is readily available;
(b) endeavour to make all tender documentation available free of charge;
(c) conduct procurement by electronic means, including through new information and communication technologies;
(d) consider the size, design, and structure of the procurement, including subcontracting with SMEs; and
(e) promote prompt payment upon satisfactory provision of the goods or services.
Article 11.5. Cooperation In Government Procurement
1. The Parties recognize the importance of cooperation between them in helping to ensure the effective implementation of this Chapter. Taking into account the available and existing instruments, resources, and mechanisms, the Parties shall, to the extent possible, cooperate and exchange information, including through networks, seminars, and workshops, in matters such as:
(a) sustainable procurement practices; and
(b) streamlining and simplifying procurement processes to facilitate the participation of suppliers in government procurement.
Chapter 12. Intellectual Property
Article 12.1. Objectives
The objectives of this Chapter are to:
(a) maintain a balance between the rights of intellectual property right holders and the legitimate interests of intellectual property users with regard to intellectual property;
(b) facilitate international trade and economic, social and cultural development through the dissemination of ideas, technology and creative works; and
(c) facilitate the enforcement of intellectual property rights with a view, among other things, to eliminating trade in goods infringing intellectual property rights.
Article 12.2. Affirmation of International Agreements
1. The Parties affirm their rights and obligations under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and other intellectual property agreements to which both Parties are party.
2. The Parties confirm that the TRIPS Agreement can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all. In this regard, the Parties affirm the right to fully avail themselves of the flexibilities established in the TRIPS Agreement, including those related to the protection of public health and in particular the promotion of access to medicines for all. The Parties take note of the WTO's General Council Decision on the Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health of 30 August 2003 and the Protocol amending the TRIPS Agreement adopted 6 December 2005.
Article 12.3. Protection of Geographical Indications
1. This Article concerns the protection in each of the Parties of geographical indications of wines and spirits originating in the territory of the other Party.
2. Part A of Annex 12-A contains geographical indications originating and protected in Canada. The terms listed in Part A of Annex 12-A are eligible for registration as protected geographical indications in Ukraine.
3. Part B of Annex 12-A contains geographical indications originating and protected in Ukraine. The terms listed in Part B of Annex 12-A are eligible for registration as protected geographical indications in Canada.
4. In order to secure protection, the authorities responsible for particular geographical indications in each Party shall apply for registration for protection in the territory of the other Party, in accordance with the procedures and requirements prescribed by the law of the other Party. The protection by each Party of these geographical indications shall be in accordance with Articles 22 through 24 of the TRIPS Agreement and subject to the exceptions provided in Article 24 of the TRIPS Agreement.
5. Each Party may adopt or maintain procedures that provide for the cancellation of the protection afforded to a geographical indication within its territory.
6. If a geographical indication of a Party listed in Annex 12-A ceases to be protected in the territory of its place of origin or falls into disuse in that place, that Party shall notify the other Party and request cancellation of the registration.
7. In accordance with the procedure established in paragraph 9, the Joint Commission referred to under Article 27.1 (Joint Commission) may amend Annex 12-A by removing a geographical indication of a wine or spirit which has ceased to be protected, or has fallen into disuse in Canada from Part A, or a geographical indication of a wine and spirit which has ceased to be protected, or has fallen into disuse in Ukraine from Part B.
8. In accordance with the procedure established in paragraph 9, the Joint Commission may amend Annex 12-A by adding a geographical indication of a wine or spirit originating and protected in Canada to Part A, and a geographical indication of a wine or a spirit originating and protected in Ukraine to Part B.
9. The Joint Commission, when exercising its powers of paragraph 7 or 8, shall act by consensus and on a recommendation by the Committee on Intellectual Property referred to under Article 12.12.
Article 12.4. Enforcement of Intellectual Property Rights
1. Each Party shall ensure that enforcement procedures are available under its legislation so as to permit effective action against any act of infringement of intellectual property rights (1), including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
2. Procedures concerning the enforcement of intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.
Article 12.5. Criminal Procedures
Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include either imprisonment or monetary fines or both, sufficient to provide a deterrent, consistent with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and any materials or implements the predominant use of which has been in the commission of the offence. Each Party may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular when they are committed wilfully and on a commercial scale.
Article 12.6. Camcording
1. Each Party shall provide for criminal procedures and penalties to be applied in accordance with that Party's laws and regulations for the unauthorised copying of a cinematographic work, or any part thereof, from a performance in a movie theatre.
2. For an offence specified in paragraph 1, each Party shall provide penalties that include imprisonment as well as monetary fines (2) sufficiently high to provide a deterrent against future acts of infringement, consistent with the level of penalties applied for crimes of a corresponding gravity.
Article 12.7. Special Measures Against Copyright Infringers on the Internet or other Digital Networks
1. Each Party's civil and criminal enforcement procedures shall apply to infringement of copyright or related rights on the Internet or other digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes.
2. A Party may provide its competent authorities, in accordance with its law, with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, if that right holder has filed a legally sufficient claim for copyright or related rights infringement, and if that information is being sought for the purpose of protecting or enforcing those rights.
3. Each Party shall endeavour to promote cooperative efforts within the business community to effectively address copyright or related rights infringement while preserving legitimate competition and, consistent with that Party's domestic law, preserving fundamental principles such as freedom of expression, fair process, and privacy.
4. Each Party shall adopt or maintain measures to curtail copyright and related right infringement on the Internet or other digital network.
5. Each Party shall implement the procedures referred to in this Article in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce and, consistent with that Party's law, preserves fundamental principles such as freedom of expression, fair process, and privacy. (3)
Article 12.8. Special Requirements Related to Border Measures
1. For the purposes of this Article, goods infringing an intellectual property right mean counterfeit trademark goods or pirated copyright goods as defined in footnote 14 of Article 51 of the TRIPS Agreement. (4)
2. Each Party shall permit its competent authorities to request that a right holder supply relevant information to assist in taking the border measures referred to in this Article. A Party may also allow a right holder to supply relevant information to its competent authorities.
3. Each Party shall adopt or maintain procedures with respect to import and export shipments (5) under which its competent authorities may act upon their own initiative to suspend the release of, or to detain, goods suspected of infringing an intellectual property right.
4. Each Party shall adopt or maintain procedures with respect to import and export shipments under which a right holder may request the competent authorities of the Party providing the procedures to suspend the release of, or to detain, goods suspected of infringing an intellectual property right.
5. Each Party may provide that, if the applicant has abused the procedures described in this Article or if there is due cause, that Party's competent authorities have the authority to deny, suspend, or void the application.