(j) “trade administration documents” means documents, forms or other information, including in electronic formats, as required by a Party’s domestic legislation on commercial trade transactions;
(k) “unsolicited commercial electronic messages” means electronic messages for commercial purposes without the consent of the recipient or against the explicit rejection of the recipient.
Article 4.2. Scope
1. This Chapter applies to measures of the Parties affecting trade enabled by electronic means.
2. In the event of any inconsistency between this Chapter and Annex IX (Financial Services); Annex IX (Financial Services), shall prevail.
3. This Chapter shall not apply to audio-visual services.
Article 4.3. General Provisions
The Parties recognise:
(a) the economic growth and opportunities that electronic commerce in goods and services provides, in particular for businesses and consumers as well as the potential for enhancing international trade;
(b) the importance of avoiding barriers to the use and development of electronic commerce in goods and services; and
(c) the need to create an environment of trust and confidence in as well as security for electronic commerce, in particular by:
(i) the protection of privacy of natural persons in relation to the processing of personal data;
(ii) the protection of confidentiality of individual records and accounts, and commercial secrets;
(iii) measures to prevent and proscribe deceptive and fraudulent practices or to deal with the effects of a default on contracts; and
(iv) measures against unsolicited commercial electronic messages.
Article 4.4. Right to Regulate
The Parties reaffirm the right to regulate in the area of electronic commerce in conformity with this Chapter to achieve legitimate policy objectives.
Article 4.5. Customs Duties (4)
1. No Party shall impose customs duties on electronic transmissions.
2. For greater certainty, paragraph 1 shall not preclude a Party from imposing internal taxes, fees, or other charges on electronic transmissions, provided that they are imposed in a manner consistent with this Agreement.
Article 4.6. Electronic Authentication, Trust Services and Contracts by Electronic Means
1. No Party shall deny the legal effect and admissibility as evidence in legal proceedings of an electronic document, electronic signature, electronic seal, electronic time stamp or of data sent and received using an electronic registered delivery service, solely on the ground that it is in electronic form.
2. No Party shall adopt or maintain measures that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate electronic authentication methods for their transaction; or
(b) prevent parties to an electronic transaction from being able to prove to judicial or administrative authorities that the use of electronic authentication or an electronic trust service in that transaction complies with the applicable legal requirements.
3. Notwithstanding paragraph 2, each Party may require that for a particular category of transactions, the method of electronic authentication or trust service is either certified by an authority accredited in accordance with its domestic laws and regulations or that the method meets certain performance standards which shall be objective, transparent and non-discriminatory and shall only relate to the specific characteristics of the category of transactions concerned.
4. Except to the extent provided under a Partyâs domestic laws and regulations in relation to certain types of contracts, a Party shall not deny that contracts may be concluded by electronic means.
5. Each Party shall ensure that its domestic laws and regulations do not deprive electronic contracts of legal effect and validity solely on the ground that the contracts have been made by electronic means.
Article 4.7. Paperless Trade Administration
1. Each Party shall make all trade administration documents publicly available in electronic form.
2. Each Party shall accept electronic versions of trade administration documents as legal equivalents of paper documents except if:
(a) there is a domestic or international legal requirement to the contrary; or (b) doing so would reduce the effectiveness of the trade administration process.
Article 4.8. Open Internet Access
Subject to applicable domestic laws and regulations, each Party shall adopt or maintain appropriate measures to ensure that end-users in its territory are able to:
(a) access, distribute and use services and applications of their choice available through the Internet, subject to reasonable and non- discriminatory network management;
(b) connect devices of their choice to the Internet, provided that such devices comply with the requirements in the territory where they are used and do not harm the network; and
(c) have access to information on the network management practices of their Internet access service supplier.
Article 4.9. Online Consumer Trust
1. Each Party shall adopt or maintain measures to ensure the effective protection of consumers engaging in electronic commerce transactions, including but not limited to measures that:
(a) proscribe fraudulent and deceptive commercial practices;
(b) require suppliers of goods and services to act in good faith and abide by fair commercial practices, including through the prohibition of charging consumers for unsolicited goods and services;
(c) require suppliers of goods and services to provide consumers with clear and thorough information regarding their identity and contact details (5), as well as information regarding the goods and services, the transaction and the applicable consumer rights; and
(d) grant consumers access to redress to claim their rights, including a right to remedies in cases where goods or services are paid and not delivered or provided as agreed.
2. The Parties recognise the importance of entrusting their consumer protection agencies or other relevant bodies with adequate enforcement powers and the importance of cooperation between their agencies in the enforcement of their respective domestic laws and regulations related to consumer protection and online consumer trust.
3. The Parties recognise the importance of promoting effective policy frameworks relating to consumer product safety.
Article 4.10. Unsolicited Commercial Electronic Messages
1. In order to protect users effectively against unsolicited commercial electronic messages, each Party shall adopt or maintain measures that:
(a) require suppliers of unsolicited commercial electronic messages to facilitate the ability of recipients to prevent ongoing reception of such messages; and
(b) require the consent, as specified according to its domestic laws and regulations, of recipients to receive commercial electronic messages.
2. Each Party shall provide access to recourse against suppliers of unsolicited commercial electronic messages who do not comply with its measures implemented pursuant to paragraph 1.
Article 4.11. Cross-border Data Flows
1. The Parties commit to ensuring cross-border data flows to facilitate digital trade. To that end, cross-border data flows shall not be restricted between the Parties by: (6)
(a) requiring the use of computing facilities or network elements in the Party's territory for processing, including by imposing the use of computing facilities or network elements that are certified or approved in the Party's territory;
(b) requiring the localisation of data in the Partyâs territory for storage or processing;
(c) prohibiting storage or processing in the territory of the other Party; or
(d) making the cross-border transfer of data contingent upon use of computing facilities or network elements in the Party's territory or upon localisation requirements in the Party's territory.
2. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 1 to achieve a legitimate public policy objective, (7) provided that the measure:
(a) is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade; and
(b) does not impose restrictions on transfers of information that are greater than necessary to achieve the objective. (8)
3. The Parties shall review the implementation of this Article and assess its functioning in the Joint Committee. The first such review shall take place no later than three years from the entry into force of this Agreement.
Article 4.12. Electronic Payments and Invoicing
1. The Parties recognise the pivotal role of electronic payments in enabling electronic commerce and the rapid growth of electronic payments. The Parties agree to support the development of efficient, safe and secure cross-border electronic payments by fostering the adoption and use of internationally accepted standards, promoting interoperability and the interlinking of payment infrastructures, and encouraging useful innovation and competition in the payment's ecosystem.
2. The Parties recognise the importance of e-invoicing, which increases the efficiency, accuracy and reliability of commercial transactions and agree to promote the adoption of interoperable systems for e-invoicing.
3. The Parties shall support and facilitate the adoption of e-invoicing by undertakings. To this end, the Parties shall endeavour to:
(a) promote the existence of underlying infrastructure to support e-invoicing; and
(b) generate awareness of and build capacity for e-invoicing.
Article 4.13. Protection of Personal Data and Privacy
1. The Parties recognise that the protection of personal data and privacy is a fundamental right and that high standards in this regard contribute to the development of digital trade and trust therein.
2. Each Party shall adopt or maintain safeguards it deems appropriate to ensure a high level of protection of personal data and privacy, including through the adoption and application of rules for the cross-border transfer of personal data. Nothing in this Agreement shall affect the protection of personal data and privacy afforded by the Parties' respective safeguards.
3. The Parties shall inform each other about any safeguards they adopt or maintain according to paragraph 2.
Article 4.14. Transfer of or Access to Source Code
1. No Party shall require the transfer of, or access to, the source code of software or parts thereof owned by a natural or juridical person of another Party.
2. The provisions of paragraph 1 shall not apply to:
(a) requirements by a court or administrative tribunal;
(b) intellectual property rights and their protection and enforcement;
(c) competition law and its enforcement;
(d) the right of a Party to take measures in accordance with Chapter 7 (Government Procurement);
(e) requirements by surveillance (control) authorities in order to verify the conformity of goods and services with legal requirements; or
(f) the voluntary transfer or granting of access to source code on a commercial basis by a natural or juridical person of a Party.
Article 4.15. Cooperation on Electronic Commerce
1. The Parties may engage in a dialogue on regulatory issues raised in relation to electronic commerce, which could, inter alia, address the following issues:
(a) the liability of intermediary service providers with respect to the transmission and storage of information;
(b) the treatment of unsolicited commercial electronic messages;
(c) the interoperability of infrastructures, such as secure electronic authentication and payments;
(d) consumer protection; and
(e) other issues relevant for the development of electronic commerce.
2. Such a dialogue may include exchange of information on the Parties' respective domestic laws and regulations on these issues as well as on the implementation of such domestic laws and regulations.
Article 4.16. General Exceptions
For the purposes of this Chapter, Article XX of the GATT 1994 and Article XIV of the GATS apply, and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 4.17. Security Exceptions
For the purposes of this Chapter, Article XXI of the GATT 1994 and Article XIV bis of the GATS apply, and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
Chapter 5. INVESTMENT
Article 5.1. Scope and Coverage
1. This Chapter shall apply to investments in the territory of one Party by an investor of another Party, which constitute, or are related to, a direct investment. It shall not apply to investments in the services sectors covered by Chapter 3 (Trade in Services). (9)
2. This Chapter shall apply to investments irrespective of whether they have been made prior to or after the entry into force of this Agreement. It shall however not apply to disputes arising out of events which occurred prior to the entry into force of this Agreement.
3. The provisions of this Chapter shall be without prejudice to the interpretation or application of the rights and obligations under any other international agreement relating to investment or taxation to which Ukraine and one or several EFTA States are parties.
Article 5.2. Definitions
For the purposes of this Chapter,
(a) “direct investment” means participation of an investor in an enterprise, consisting of at least 10 per cent ownership, whether direct or indirect, of the total vote-entitled shares in that enterprise. âIndirect ownershipâ refers to the total of vote-entitled shares that is attributable to an investor in accordance with the relevant precisions to the definition of âdirect investmentâ by the IMF;
(b) “enterprise of a Party” means any legal person or any other entity, constituted or otherwise organised under the law of a Party, that is engaged in business operations in the territory of the same or any other Party;
(c) “investment” means every kind of asset, including but not limited to: any form of equity or other participation in an enterprise; claims to money and claims to performance; intellectual property rights; rights conferred pursuant to law or under contract, such as concessions, licenses and permits; and any rights on movable and immovable property
(d) “investment activities” means the establishment, acquisition, expansion, management, conduct, operation, maintenance, use, enjoyment and sale or other disposition of an investment;
(e) “investment of an investor of a Party” means an investment that is owned or controlled, either directly or indirectly, by an investor of that Party;
(f) “investor of a Party” means:
(i) a natural person having the nationality of, or permanent residence in, a Party in accordance with its applicable law; or
(ii) a legal person or any other entity constituted or organised under the applicable law of a Party, and engaged in substantive business operations in any Party, whether or not for profit, and whether private or government- owned or controlled;
that is making or has made an investment in the territory of another Party.
(g) “measure” means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form.
Article 5.3. General Treatment
Each Party shall accord to investors of another Party, and their investments, treatment in accordance with international law, including fair and equitable treatment and full protection and security.
Article 5.4. National Treatment
Each Party shall, subject to Article 5.11 (Reservations) and the reservations set out in Annex XI (Reservations), accord to investors of another Party and their investments treatment no less favourable than it accords, in like situations, to its own investors and their investments with respect to investment activities in its territory.
Article 5.5. Most Favoured Nation Treatment
1. Except as provided for in Annex XII (Reservations by the Kingdom of Norway), each Party shall accord to investors of another Party and their investments treatment no less favourable than that it accords, in like situations, to investors of any non-Party and to their investments with respect to investment activities in its territory.
2. If a Party accords preferential treatment to investments of investors of any third State by virtue of a free trade agreement, customs union, common market or any other economic integration agreement, it shall not be obliged to accord such treatment to investments of investors of another Party. The same applies with respect to treatment accorded by a Party by virtue of any investment protection agreement or agreement on avoidance of double taxation.
3. If a Party, after entry into force of this Agreement, has granted to a non-Party by virtue of an agreement as referred to in paragraph 2, treatment more favourable than that provided for by this Agreement, it shall consider a request by another Party to incorporate into this Agreement the more beneficial treatment granted to the non-Party.
Article 5.6. Access to Courts
Each Party shall in its territory accord to investors of another Party treatment no less favourable than the treatment which it accords to its own investors or investors of a non-Party with respect to the jurisdiction of its courts as well as its administrative tribunals and agencies, both in pursuit and in defence of investors' rights.
Article 5.7. Key Personnel
1. The Parties shall, subject to their domestic laws and regulations relating to the entry, stay and work of natural persons, examine in good faith requests by investors of another Party, and key personnel who are employed by such investors or by investments, to enter and remain temporarily in their territories in order to engage in activities connected with the management, maintenance, use, enjoyment, expansion or disposal of relevant investments, including the provision of advice or key technical services.
2. The Parties shall, subject to their domestic laws and regulations, permit investors of another Party and their investments, to employ any key person of the investorâs or the investmentâs choice regardless of nationality and citizenship provided that such key person has been permitted to enter, stay and work in their territory and that the employment concerned conforms to the terms, conditions and time limits of the permission granted to such key person.
3. The Parties shall, subject to their domestic laws and regulations, grant temporary entry and stay and provide any necessary confirming documentation to the spouse and minor children of a natural person who has been granted temporary entry, stay and authorisation to work in accordance with paragraphs 1 and 2. The spouse and minor children shall be admitted for the period of the stay of that person.
Article 5.8. Right to Regulate
1. Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure consistent with this Chapter that is in the public interest, such as measures to meet health, safety or environmental concerns or reasonable measures for prudential purposes.
2. A Party shall not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion or retention in its territory of an investment of an investor of a Party or a non-Party.
Article 5.9. Transparency
Domestic laws, regulations, judicial decisions and administrative rulings of general application made effective by a Party, and agreements in force between Parties, which affect matters covered by this Chapter shall be published promptly, or otherwise made publicly available, in such a manner as to enable Parties and investors to become acquainted with them. The provisions of this Article shall not require a Party to disclose information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of any investor.
Article 5.10. Trade Related Investment Measures
The Parties reaffirm their commitments to the WTO Agreement on Trade-Related Investment Measures (TRIMs) and hereby incorporate the provisions of TRIMs, as part of this Agreement.
Article 5.11. Reservations
1. National treatment as provided for under Article 5.4 (National Treatment) shall not apply to:
(a) any reservation that is listed by a Party in Annex XI (Reservations);
(b) an amendment to a reservation covered by subparagraph 1 (a) to the extent that the amendment does not decrease the conformity of the reservation with Article 5.4 (National Treatment);
(c) any new reservation adopted by a Party, and incorporated into Annex XI (Reservations) which does not affect the overall level of commitments of that Party under this Agreement;
to the extent that such reservations are inconsistent with Article 5.4 (National Treatment).
2. As part of the reviews provided for in Article 5.15 (Review Clause), the Parties undertake to review the status of the reservations set out in Annex XI (Reservations) with a view to reducing the reservations or removing them.
3. A Party may, at any time, either upon the request of another Party or unilaterally, remove, in whole or in part, its reservations set out in Annex XI (Reservations) by written notification to the other Parties.
4. A Party may, at any time, incorporate a new reservation into Annex XI (Reservations) in accordance with subparagraph 1 (c) by written notification to the other Parties. On receiving such written notification, the other Parties may request consultations regarding the reservation. On receiving the request for consultations, the Party incorporating the new reservation shall enter into consultations with the other Parties.
Article 5.12. Payments and Transfers
1. Except under the circumstances envisaged in Article 5.13 (Restrictions to Safeguard the Balance-of-Payments), a Party shall not apply restrictions on current payments and capital movements relating to direct investments covered by this Chapter.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties under the Articles of the Agreement of the IMF, including the use of exchange actions which are in conformity with the said Articles, provided that a Party does not impose restrictions on capital transactions inconsistent with its obligations under this Chapter.
Article 5.13. Restrictions to Safeguard the Balance-of-Payments
1. The Parties shall endeavour to avoid the imposition of restrictions to safeguard the balance of payments.
2. The rights and obligations of the Parties in respect of such restrictions shall be governed by paragraphs 1 to 3 of Article XII of the GATS, which are hereby incorporated into and made part of this Chapter, mutatis mutandis.