Article 17.38. Presumptions
In civil, criminal and, if applicable, administrative proceedings involving copyright or related rights, each Party shall provide for a presumption (19) that, in the absence of proof to the contrary:
(a) the person whose name is indicated in the usual manner (20) as the author, performer or producer of the work, performance or phonogram, or if applicable the publisher, is the designated right holder in that work, performance or phonogram; and
(b) the copyright or related right subsists in such subject matter.
Article 17.39. Enforcement Practices with Respect to Intellectual Property Rights
Each Party shall provide that final judicial decisions and administrative rulings of general application pertaining to the enforcement of intellectual property rights:
(a) are in writing and state any relevant findings of fact and the reasoning or the legal basis on which the decisions and rulings are based; and
(b) are published (21) or, if publication is not practicable, otherwise made available to the public in the national language of the Party in such a manner as to enable interested persons and Parties to become acquainted with them.
Article 17.40. Civil Procedures and Remedies
1. Each Party shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right covered in this Chapter. (22)
2. Each Party shall provide that its judicial authorities have the authority to order injunctive relief that conforms to Article 44 of the TRIPS Agreement, including to prevent goods that involve the infringement of an intellectual property right under the law of the Party providing that relief from entering into the channels of commerce.
3. Each Party shall provide (23) (24) that, in civil judicial proceedings, its judicial authorities have the authority at least to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that person's intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity.
4. In determining the amount of damages under paragraph 3, each Party's judicial authorities shall have the authority to consider, among other things, any legitimate measure of value the right holder submits.
5. At least in cases of copyright or related rights infringement and trademark counterfeiting, each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority to order the infringer, at least in cases described in paragraph 3, to pay the right holder the infringer's profits that are attributable to the infringement (25).
6. Each Party shall provide that its judicial authorities, if appropriate, have the authority to order, at the conclusion of civil judicial proceedings concerning infringement of at least copyright or related rights, patents and trademarks, that the prevailing party be awarded payment by the losing party of court costs or fees and appropriate attorney's fees, or any other expenses as provided for under the Party's law.
7. Each Party shall provide that in civil judicial proceedings:
(a) at least with respect to pirated copyright goods and counterfeit trademark goods, its judicial authorities have the authority, at the right holder's request, to order that the infringing goods be destroyed, except in exceptional circumstances, without compensation of any sort;
(b) its judicial authorities have the authority to order that materials and implements that have been used in the manufacture or creation of the infringing goods be, without undue delay and without compensation of any sort, destroyed or disposed of outside the channels of commerce in such a manner as to minimise the risk of further infringement; and
(c) in regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed is not sufficient, other than in exceptional circumstances, to permit the release of goods into the channels of commerce.
Article 17.41. Provisional Measures
1. Each Party's authorities shall act on a request for relief in respect of an intellectual property right inaudita altera parte expeditiously in accordance with that Party's judicial rules.
2. Each Party shall provide that its judicial authorities have the authority to require the applicant for a provisional measure in respect of an intellectual property right to provide any reasonably available evidence in order to satisfy the judicial authority, with a sufficient degree of certainty, that the applicant's right is being infringed or that the infringement is imminent, and to order the applicant to provide security or equivalent assurance set at a level sufficient to protect the defendant and to prevent abuse. Such security or equivalent assurance shall not unreasonably deter recourse to those procedures.
3. Incivil judicial proceedings concerning copyright or related rights infringement and trademark counterfeiting, each Party shall provide that its judicial authorities have the authority to order the seizure or other taking into custody of suspected infringing goods, materials and implements relevant to the infringement, and, at least for trademark counterfeiting, documentary evidence relevant to the infringement.
Article 17.42. Special Requirements Related to Border Measures
1. Each Party shall provide for applications to suspend the release of, or to detain, any suspected counterfeit or confusingly similar trademark or pirated copyright goods that are imported into the territory of the Party (26).
2. Each Party shall provide that any right holder initiating procedures for its competent authorities (27) to suspend release of suspected counterfeit or confusingly similar trademark or pirated copyright goods into free circulation is required to provide adequate evidence to satisfy the competent authorities that, under the law of the Party providing the procedures, there is prima facie an infringement of the right holder's intellectual property right and to supply sufficient information that may reasonably be expected to be within the right holder's knowledge to make the suspect goods reasonably recognisable by its competent authorities. The requirement to provide that information shall not unreasonably deter recourse to these procedures.
3. Each Party shall provide that its competent authorities have the authority to require a right holder initiating procedures to suspend the release of suspected counterfeit or confusingly similar trademark or pirated copyright goods, to provide a reasonable security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Each Party shall provide that such security or equivalent assurance does not unreasonably deter recourse to these procedures. A Party may provide that the security may be in the form of a bond conditioned to hold the defendant harmless from any loss or damage resulting from any suspension of the release of goods in the event the competent authorities determine that the article is not an infringing good.
4. Each Party shall provide that its competent authorities may initiate border measures ex officio with respect to goods under customs control that are:
(a) imported; or
(b) destined for export.
5. Each Party shall adopt or maintain a procedure by which its competent authorities may determine after the initiation of the procedures described in paragraph 1, whether the suspect goods infringe an intellectual property right. If a Party provides administrative procedures for the determination of an infringement, it may also provide its authorities with the authority to impose administrative penalties or sanctions, which may include fines or the seizure of the infringing goods following a determination that the goods are infringing.
Article 17.43. Criminal Procedures and Penalties
1. Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale.
2. Each Party shall treat wilful importation or exportation of counterfeit trademark goods or pirated copyright goods on a commercial scale as unlawful activities subject to criminal penalties. (28)
Chapter 18. Labour
Article 18.1. Definitions
For the purposes of this Chapter:
labour laws means laws and regulations, (1) or provisions of laws and regulations, of a Party that are directly related to the following internationally recognised labour rights:
(a) freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour, a prohibition on the worst forms of child labour and other labour protections for children and minors; and
(d) the elimination of discrimination in respect of employment and occupation.
Article 18.2. Statement of Shared Commitments
The Parties affirm their obligations as members of the International Labour Organization (ILO).
Article 18.3. Fundamental Labour Rights
The Parties, in accordance with their obligations as members of the ILO and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up (1998) (ILO Declaration), shall endeavor to adopt and maintain in their labour laws and ptactices thereunder, the principles as stated in the ILO Declaration.
Article 18.4. Application and Enforcement of Labour Laws
1. Neither Party shall fail to effectively enforce its labour laws, including those it adopts or maintains in accordance with Article 18.3, through a sustained or recurring course of action or inaction, in a manner substantially affecting trade or investment between the Parties.
2. Neither Party shall waive or otherwise derogate from, or offer to waive or otherwise derogate from, its labour laws implementing Article 18.3, in a manner substantially affecting trade or investment between the Parties, where the waiver or derogation would be inconsistent with the principles as stated in the ILO Declaration.
Article 18.5. Procedural Guarantees and Public Awareness
1. Each Party shall ensure that persons with a recognised interest in a particular matter under its labour laws have appropriate access to impartial and independent tribunals for the enforcement of the Party's labour laws. Such tribunals may include administrative, quasi-judicial, judicial, or labour tribunals, as provided for in the Party's law.
2. Each Party shall ensure that proceedings before such tribunals for the enforcement of its labour laws are fair, equitable and transparent. To this end, each Party shall ensure that:
(a) such proceedings comply with due process of law;
(b) any hearings in such proceedings are open to the public, except where the administration of justice otherwise requires;
(c) the parties to such proceedings are entitled to support or defend their respective positions including by presenting information or evidence; and
(d) such proceedings do not entail unreasonable charges, or time limits, or unwarranted delays.
3. Each Party shall provide that parties to such proceedings may seek existing remedies to ensure the enforcement of their rights under its labour laws.
4. Each Party shall promote public awareness of its labour laws, including by:
(a) ensuring the availability of public information related to its labour laws and enforcement and compliance procedures; and
(b) encouraging education of the public regarding its labour laws.
Article 18.6. Contact Points
Each Party shall designate a contact point for labour matters in order to facilitate communication between the Parties. Unless otherwise notified, for the purposes of this paragraph, the contact point shall be:
(a) for Australia, the Department of Employment, or its successor; and
(b) for Peru, the Ministry of Labour and Employment Promotion , or its successor.
Article 18.7. Labour Cooperation
1. The Parties recognise that cooperation on labour issues plays an important role in advancing development in the territories of the Parties, enhancing opportunities to improve labour standards and further advancing common commitments regarding labour matters, including the principles embodied in the ILO Declaration and ILO Convention No. 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, done at Geneva on 17 June, 1999.
2. The Parties may cooperate on labour matters of mutual interest and explore ways to further advance labour standards. Cooperative activities may include work on labour laws and practices in the context of the ILO Declaration, and other matters as mutually agreed between the Parties.
Chapter 19. Environment
Article 19.1. Definitions
For the purposes of this Chapter:
environmental law means a law or regulation of a Party, or provision thereof, including any that implements the Party's obligations under a multilateral environmental agreement, the primary purpose of which is the protection of the environment, or the prevention of a danger to human life or health, through:
(a) the prevention, abatement or control of: the release, discharge or emission of pollutants or environmental contaminants or greenhouse gases;
(b) the control of environmentally hazardous or toxic chemicals, substances, materials or wastes, and the dissemination of information related thereto; or
(c) the protection or conservation of wild flora or fauna, including endangered species, their habitat, and specially protected natural areas,
but does not include a law or regulation, or provision thereof, directly related to worker safety or health, nor any law or regulation, or provision thereof, the primary purpose of which is managing the subsistence or aboriginal harvesting of natural resources; and
law or regulation means:
(a) for Australia, an Act of the Commonwealth Parliament, or a regulation made by the Governor-General in Council under delegated authority under an Act of the Commonwealth Parliament, that is enforceable at the central level of government; and
(b) for Peru, a law of Congress, Legislative Decree, Decree or Resolution promulgated by the central level of government to implement a law of Congress that is enforceable by action of the central level of government.
Article 19.2. Objectives
1. The objectives of this Chapter are to promote mutually supportive trade and environmental policies; promote high levels of environmental protection and effective enforcement of environmental laws; and enhance capacities of the Parties to address trade-related environmental issues, including through cooperation.
2. The Parties further recognise that it is inappropriate to establish or use their environmental laws or other measures in a manner which would constitute a disguised restriction on trade or investment between the Parties.
Article 19.3. General Commitments
1. The Parties recognise the importance of mutually supportive trade and environmental policies and practices to improving environmental protection in the furtherance of sustainable development.
2. The Parties recognise the sovereign right of each Party to establish its own levels of domestic environmental protection and its own environmental priorities, and to establish, adopt or modify its environmental laws and policies accordingly.
3. Without prejudice to paragraph 2, each Party recognises that it is inappropriate to encourage trade or investment by weakening or reducing the protection afforded in their respective environmental laws.
4. Each Party shall strive to ensure that its environmental laws and policies encourage high levels of environmental protection and continue to improve its respective levels of environmental protection.
5. Nothing in this Chapter shall be construed to empower a Party's authorities to undertake environmental law enforcement activities in the territory of the other Party.
Article 19.4. Multilateral Environmental Agreements
1. The Parties recognise that multilateral environmental agreements to which they are party play an important role, globally and domestically, in protection of the environment and that their respective implementation of these agreements is critical to achieving the environmental objectives of these agreements. Accordingly, each Party affirms its commitment to implement the multilateral environmental agreements to which it is party.
2. The Parties emphasise the need to enhance the mutual supportiveness between trade and environmental laws and policies, through dialogue between the Parties on trade and environmental issues of mutual interest, particularly with respect to multilateral environmental agreements and international trade agreements to which both Parties are party.
3. The Parties recognise the importance of conservation and sustainable use of biological diversity, and their key role in achieving sustainable development.
Accordingly, each Party shall promote and encourage the conservation and sustainable use of biological diversity, in accordance with its law or policy and international agreements to which they are party. (1)
4. The Parties further recognise (2) that they require, through and in accordance with national measures: prior informed consent to access such genetic resources and, where such access is granted, the establishment of mutually agreed terms, including with respect to sharing of benefits from the use of such genetic resources, between users and providers.
5. The Parties also acknowledge that access to traditional knowledge associated with genetic resources from providers, as well as the equitable sharing of benefits that may result from the utilisation of that traditional knowledge, may be addressed through contracts that reflect mutually agreed terms between users and providers.
6. Parties shall cooperate to address matters of mutual interest related to trade and biodiversity in accordance with relevant international obligations and with their laws and policies.
7. The Parties acknowledge that climate change requires collective action, and recognise the importance of implementation of their respective commitments under the multilateral agreements to which they are party. (3) Recognising that each Party's actions should reflect domestic circumstances and capabilities, the Parties shall, as appropriate, cooperate to address matters of joint or common interest.
8. The Parties affirm the importance of combating the illegal trade in wild fauna and flora. Accordingly, each Party shall adopt, maintain and implement laws, regulations and any other measures to fulfil its obligations under the multilateral environmental agreements to which they are party. (4)
Article 19.5. Environmental Consultations
1. Each Party shall designate and notify a contact point on Environment, to facilitate communications between the Parties on any matter covered by this Chapter.
2. A Party may request consultations with the other Party regarding any matter arising under this Chapter by delivering a written request to the contact point of the other Party. Consultations shall commence promptly after a Party delivers a request for consultations to the contact point of the other Party. The Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter.
Article 19.6. Dispute Settlement
Neither Party shall have recourse to dispute settlement under Chapter 27 (Dispute Settlement) for any matter arising under this Chapter.
Chapter 20. Cooperation and Capacity Building
Article 20.1. General Provisions
1. The Parties shall establish a framework for cooperation and capacity building activities and shall undertake and strengthen these activities to assist in implementing this Agreement and enhancing its benefits, with the intention of accelerating economic growth and sustainable development.
2. The Parties recognise that cooperation and capacity building activities may be undertaken between the Parties, on a mutually agreed basis, and shall seek to complement and build on existing agreements or arrangements between them.
3. The Parties also recognise that the involvement of the private sector is important in these activities, and that SMEs may require assistance in participating in global markets.
Article 20.2. Areas of Cooperation and Capacity Building
1. The Parties may undertake and strengthen cooperation and capacity building activities to assist in:
(a) implementing the provisions of this Agreement;
(b) education, human capital development, culture and gender equality;
(c) innovation, technology, research and development;
(d) mining and energy;
(e) water management and sanitation;
(f) tourism and gastronomy;
(g) protection of vulnerable groups, including women, children, people with disabilities and indigenous people; and
(h) disaster risk management.
3. The Parties recognise that technology and innovation provide added value to cooperation and capacity building activities, and may be incorporated into cooperation and capacity building activities under this Article.
4. Cooperation and capacity building activities may include, but should not be limited to: dialogues, workshops, seminars, conferences, collaborative programmes and projects; technical assistance to promote and facilitate capacity building and training; the sharing of best practices on policies and procedures; the exchange of experts, information and technology; and the encouragement of private sector cooperation.
Article 20.3. Contact Points for Cooperation and Capacity Building
1. Each Party shall designate and notify a contact point on Cooperation and Capacity Building to facilitate communications between the Parties on any matter covered by this Chapter.
2. A Party may make a request for cooperation and capacity building activities related to this Agreement to the other Party through the contact points.
Article 20.4. Committee on Cooperation and Capacity Building
1. The Parties hereby establish a Committee on Cooperation and Capacity Building (Committee), composed of government representatives of each Party.
2. The Committee shall:
(a) discuss and consider issues or proposals for future cooperation and capacity building activities;
(b) initiate and undertake collaboration, as appropriate, to enhance donor coordination and facilitate public-private partnerships in cooperation and capacity building activities;
(c) invite, as appropriate, international donor institutions, private sector entities, non-governmental organisations, academic sector or other relevant institutions, to assist in the development and implementation of cooperation and capacity building activities;
(d) establish ad hoc working groups, as appropriate, which may include government representatives, non-government representatives or both;
(e) coordinate with any other subsidiary bodies established under this Agreement as appropriate, in support of the development and implementation of cooperation and capacity building activities;
(f) review the implementation or operation of this Chapter; and
(g) engage in other activities as the Parties may decide.
3. The Committee shall meet within one year of the date of entry into force of this Agreement, and thereafter as necessary.
4. The Committee shall produce an agreed record of their meetings, including decisions and next steps and, as appropriate, report to the Joint Commission.