10.6. Rules of Origin
A Party shall not apply rules of origin to goods or services imported or supplied from the other Party, for the purposes of government procurement, which are different from the tules of origin applied in the normal course of trade and at the time of the transaction in question to imports or supplies of the same goods or services from that other Party.
10.7. Procurement Procedures
1. Each Party shall ensure that the procurement procedures, including tendering and supplier invitation, registration of interest, prequalification, selection, negotiation and contract award procedures, of its government bodies are applied in a manner consistent with this Chapter, the APEC Non-Binding Principles on Government Procurement, and good commercial practice.
2. In cases of procurement by open call for tender, invitations to tender shall be advertised in a publicly accessible medium; and in cases of procurement by selective invitation to tender, prior calls to prequalify or register interest shall be advertised in a publicly accessible medium.
3. The Parties shall ensure that government bodies make readily available on request by New Zealand/Singapore suppliers information on contract awards, including the name of the supplier, the goods or services supplied and value of the contract award, unless the release of such information would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private, or might prejudice fair competition between suppliers.
4. Government bodies shall, on request from an unsuccessful supplier which participated in the relevant tender, promptly provide pertinent information concerning reasons for the rejection of its tender, unless the release of such information would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interest of particular enterprises, public or private, or might prejudice fair competition between suppliers.
5. Each Party shall also take appropriate steps to enhance transparency at all stages of their procurement procedures, and endeavour to provide the information specified in paragraph 2 and paragraph 3 for all government bodies from a single point of access through a public medium, such as the internet.
10.8. Prohibition of Offsets
1. Government bodies shall not, in the qualification and selection of suppliers, goods and services, or in the evaluation of tenders and award of contracts, impose, seek or consider offsets in relation to government procurement from New Zealand or Singapore suppliers.
2. Offsets in relation to government procurement means measures used to encourage local development or improve the balance of payments accounts by requiring domestic content, licensing of technology, investment, counter-trade or similar requirements.
10.9. Disputes between a Supplier and the Procuring Government Body
1. In the event of a complaint by a supplier that there has been a breach of this Chapter, each Party shall encourage the supplier to seek resolution of its complaint in consultation with the procuring government body. In such instances the procuring government body shall accord timely and impartial consideration to any such complaint.
2. Failing resolution through consultation between the supplier and the procuring government body, the complainant should seek the assistance of the designated body of the Party in whose territory the complainant is located. A complaint made informally may be processed informally if this is deemed appropriate by the designated body and the complainant.
3. Failing resolution, the designated body receiving the complaint shall formally raise it with the designated body of the other Party for investigation of any alleged breach of this Chapter and for a report by it in writing. The Parties agree to provide details and documentation to permit a full investigation of complaints. Confidentiality of all information shall be maintained.
4. If the response is satisfactory to the designated body which received the original complaint, then the complaint shall lapse.
5. If satisfactory resolution is not achieved, the designated body which received the original complaint may then refer the matter to the Minister responsible for procurement in the other Party for further investigation and decision.
6. In the event that a complaint cannot be resolved through the steps set out above within 30 days of the designated body that received the original complaint formally raising it with the designated body of the other Party, the provisions of Chapter 14 (Dispute Settlement) shall apply. A Party shall be entitled by subrogation to exercise the rights and assert the claims of its own supplier against the other Party. The subrogated rights or claims shall not be greater than the original rights or claims of that supplier.
10.10. Exemptions
1. It is recognised by the Parties that, under certain circumstances, there may be a need for exemption from some of the requirements of this Chapter for certain government bodies, for certain classes of procurement, and for procurement undertaken in accordance with specific government policies.
2. Exemptions from some of the requirements of this Chapter may be sought by either Party for government bodies which meet the following criteria subject to consultation and agreement with the other Party:
(a) joint bodies with any other State or separate customs territory which is not party to this Agreement;
(b) bodies funded primarily from specific special levies on particular industries, or by community groups or from special grants or public donations.
It is not intended, however, that any government body shall be granted full exemption from the requirements of this Chapter. When considering applications for partial exemptions, the Parties shall exercise their authority with due diligence in accordance with the objectives of this Chapter.
3. The following classes of procurement are exempt from the application of this Chapter:
(a) internal procurement by a government from its own bodies where no other supplier has been asked to tender. If, however, tenders are called or invited, the provisions of this Chapter shall apply whether or not a government body submits a tender;
(b) the procurement of proprietary items required to ensure machinery or equipment integrity, but only as they may relate to biased specifications. Where such items are available from a number of sources or tenders are called or invited, all provisions of this Chapter apply other than as they relate to biased specifications;
(c) the urgent procurement of goods and related services in the event of emergencies, such as natural disasters, or to meet the urgent requirements of United Nations peacekeeping or humanitarian operations;
(d) procurement of proprietary equipment of a work, health or safety nature specified in industrial agreements but only as they may relate to biased specifications. Where such items are available from a number of sources or tenders are called or invited, all provisions of this Chapter apply other than as they relate to biased specifications;
(e) defence procurement of a strategic nature and other procurement where national security is a consideration; and
(f) procurement under development assistance programmes.
4. Either Party may seek to have additional classes of procurement exempted from this Chapter. Such exemptions shall be permitted only with the agreement of the other Party.
10.11. Administration and Review
1. The designated bodies shall report jointly to the Ministers responsible for procurement on the implementation of this Chapter in preparation for the reviews provided for in Article 15.4 (Review).
2. A committee of senior officials responsible for government procurement policy of each Party may meet as appropriate to discuss policy issues, technical or other cooperation, and the reviews referred to in paragraph 1.
Chapter 11. COMPETITION AND CONSUMER PROTECTION
11.1. Objectives
The objectives of this Chapter are to promote competition in markets, to enhance economic efficiency, and to bolster consumer protection through the adoption, maintenance and enforcement of laws and regulations to curtail anti-competitive activities. The Parties shall endeavour to implement this Chapter in a manner consistent with the APEC Principles to Enhance Competition and Regulatory Reform, adopted in Auckland on 13 September 1999.
11.2. Basic Principles
1. Each Party shall implement this Chapter in a manner consistent with the objectives of this Chapter.
2. The Parties recognise the sovereign rights of each Party to develop, set, administer, and enforce its own competition laws, regulations and policies.
3. Each Party shall apply its competition laws and regulations to all entities engaged in commercial activities. Any exclusions or exemptions from the application of each Party's competition laws and regulations must be:
(a) transparent;
(b) on the grounds of achieving public policy or public interest objectives; and
(c) no broader than necessary to achieve such objectives.
4. Each Party shall apply and enforce its competition laws and regulations in a manner which does not discriminate on the basis of nationality.
5. Each Party shall make publicly available its competition laws and regulations, and any guidelines issued in relation to the enforcement of such laws and regulations, excluding internal operating procedures.
6. Each Party shall make public the grounds for any final decision or order to impose a sanction or remedy under its competition laws and regulations, and any appeal therefrom, subject to:
(a) (i) its domestic laws and regulations;
(ii) its need to safeguard confidential information; or
(iii) its need to safeguard information on grounds of public policy or public interest; and
(b) redactions from the final decision or order on the grounds in any of subparagraphs (a)(i) to (iii).
7. Each Party recognises the importance of timeliness in the handling of competition cases.
11.3. Appropriate Measures Against Anticompetitive Activities
1. Each Party shall adopt or maintain competition laws and regulations to proscribe anti-competitive activities, and shall ensure that those laws and regulations are enforced effectively.
2. Each Party shall establish or maintain an authority or authorities to effectively enforce its competition laws and regulations.
3. Each Party shall ensure independence in decision making by its authority or authorities in relation to the enforcement of its competition laws and regulations.
11.4. Procedural Rights for Persons or Entities Subject to Sanction
1. Each Party shall ensure that before a sanction or remedy is imposed on any person or entity for breaching its competition laws or regulations, that person or entity is given the reasons, which should be in writing where possible, for the allegations that the Partyâs competition laws or regulations have been breached, and a fair opportunity to be heard and present evidence.
2. Each Party shall, subject to any redactions necessary to safeguard confidential information, make the grounds for any final decision or order to impose a sanction or remedy under its competition laws and regulations, (1) and any appeal therefrom, available to the person or entity subject to that sanction or remedy.
3. Each Party shall ensure that any person or entity subject to the imposition of a sanction or remedy under its competition laws and regulations has access to an independent review of, or appeal against, that sanction or remedy.
11.5. Cooperation
The Parties recognise the importance of cooperation between their respective competition authorities to promote effective competition law enforcement. To this end, the Parties may cooperate on issues relating to competition law enforcement, through their competition authorities, in a manner compatible with their respective laws, regulations, and important interests, and within their available resources. Such cooperation includes:
(a) notification by a Party to another Party of its competition law enforcement activities that it considers may substantially affect the important interests of the other Party, as promptly as reasonably possible;
(b) upon request, discussion between the Parties to address any matter relating to competition law enforcement that substantially affects the important interest of the requesting Party;
(c) upon request, exchange of information between the Parties to foster understanding or to facilitate effective competition law enforcement; and
(d) upon request, coordination in enforcement actions between the Parties in relation to the same or related anti-competitive activities.
11.6. Confidentiality of Information
1. For greater certainty, nothing in this Chapter shall be construed to require either Party to furnish or allow access to information the disclosure of which would:
(a) be contrary to the public interest as determined by its domestic law;
(b) be contrary to any of its legislation, including those protecting personal privacy;
(c) impede law enforcement; or
(d) prejudice legitimate commercial interests of particular enterprises, public or private.
2. Where a Party requests confidential information under this Chapter, the requesting Party shall notify the providing Party of:
(a) the purpose of the request;
(b) the intended use of the requested information; and
(c) any domestic laws or regulations of the requesting Party that may affect the confidentiality of information or require the use of the information for purposes not agreed upon by the providing Party.
3. The sharing of confidential information between the Parties shall be on a voluntary basis and the use of such information shall be based on mutually agreed terms and conditions between the Parties.
4. If information shared under this Chapter is shared on a confidential basis, then, except to comply with domestic laws and regulations, the Party receiving that information shall:
(a)maintain the confidentiality of the information received;
(b) use it only for the purpose disclosed at the time of the request, unless otherwise authorized by the Party providing the information;
(c) not use it as evidence in criminal proceedings carried out by a court or a judge unless, upon request of the Party receiving the information, such information was provided for such use in criminal proceedings through the diplomatic channel or other channel established in accordance with the laws of both Parties;
(d) not disclose it to any other authority, entity or person not authorised by the Party providing the information; and
(e) comply with any other conditions required by the Party providing the information.
11.7. Technical Cooperation and Capacity Building
The Parties agree that it is in their common interest to work together on technical cooperation activities to build necessary capacities to strengthen competition policy development and competition law enforcement, taking into account the availability of resources of the Parties. Technical cooperation activities may include:
(a) the sharing of relevant experiences and non-confidential information on the development and implementation of competition policy and law;
(b) the exchange of consultants and experts on competition policy and law;
(c) the exchange of officials of competition authorities for training purposes;
(d) the participation of officials of competition authorities in advocacy programmes; and
(e) other activities as agreed by the Parties.
11.8. Consultations
To address specific matters that arise under this Chapter, on request of one Party, the other Party shall enter into consultations with the requesting Party. In its request, the requesting Party shall indicate, if relevant, how the matter affects its important interests, including trade or investment between the Parties. The Party addressed shall accord full and sympathetic consideration to the concerns of the requesting Party.
11.9. Consumer Protection
1. The Parties recognise the importance of consumer protection laws and the enforcement of such laws, as well as cooperation between the Parties on matters related to consumer protection, in achieving the objectives set out in Article 11.1.
2. Each Party shall adopt or maintain laws or regulations against misleading and deceptive conduct that causes harm, or is likely to cause harm, to consumers. Such laws may include general contract or negligence laws and may be civil or criminal in nature. Misleading and deceptive conduct includes:
(a) making misrepresentations or false claims as to material qualities, price, suitability for purpose, quantity or origin of goods or services;
(b) advertising goods or services for supply without intention to supply;
(c) failing to deliver products or provide services to consumers after the consumers have been charged; or
(d) charging or debiting consumers' financial, telephone or other accounts without authorisation.
3. Each Party shall adopt or maintain laws or regulations that:
(a) require, at the time of delivery, goods and services provided to be of reasonable and satisfactory quality, consistent with the supplier's claims regarding the quality of the goods and services; and
(b) provide consumers with appropriate redress when they are not.
4. Each Party recognises the importance of improving awareness of, and access to, consumer redress mechanisms, including for consumers from one Party transacting with suppliers from the other Party.
5. The Parties may cooperate on matters of mutual interest related to consumer protection. Such cooperation shall be in a manner compatible with the Partiesâ respective laws and regulations and within their available resources.
11.10. Non-Application of Dispute Settlement
No Party shall have recourse to dispute settlement under Chapter 14 (Dispute Settlement) for any matter arising under this Chapter.
Chapter 12. INTELLECTUAL PROPERTY
12.1. Intellectual Property
The Parties agree that the TRIPS Agreement shall govern and apply to all intellectual property issues arising from this Agreement.
Chapter 13. REGULATORY COOPERATION
13.1. Definitions
For the purposes of this Chapter:
regulatory cooperation activities means efforts between the Parties to enhance regulatory cooperation in order to further domestic policy objectives, improve the effectiveness of domestic regulation in the face of increased cross-border activity and promote international trade and investment, economic growth and employment; and
domestic regulation means a measure of general application adopted by regulatory agencies within the Parties and with which compliance is mandatory.
13.2. General Provisions
1. The Parties affirm the importance of developing regulatory cooperation and capacity building between the Parties.
2. The Parties acknowledge:
(a) principles of good regulatory practice, while originally developed to improve the quality of domestic regulation, also result in regulation that facilitates trade;
(b) the adoption of international models, norms and rules should be considered in the development of domestic regulation;
(c) regulatory cooperation, both formal and informal, can improve the alignment of domestic regulation between key trading partners to remove potential barriers caused by regulatory difference and support trade;
(d) bodies who develop or implement regulation have a key role to play in regulatory cooperation and should consider the range of regulatory cooperation activities available to increase the alignment of domestic regulation internationally and between key trading partners;
(e) the differences in regulatory settings or regulatory implementation between countries that create problems for businesses participating in supply or value chains do not always fall neatly within the chapter structure of a free trade agreement;
(f) regulatory cooperation, both formal and informal, can improve the alignment, quality and design of future regulation.
3. The Parties therefore recognise the value in creating a mechanism to enable problems for business that span multiple Chapters of this Agreement or do not fit well within the scope of a particular Chapter of this Agreement and could be addressed by regulatory cooperation to be raised for consideration by the Parties.
13.3. Contact Points
1. Each Party shall establish a contact point which shall have responsibility to consult or coordinate with its respective regulatory departments and agencies, as appropriate, on matters arising under this Chapter.
2. The Parties shall provide each other with the name of the governmental organisation that shall be their contact point and the contact details of relevant officials in that organisation, including telephone, email and other relevant details.
3. The Parties are encouraged to make information beneficial for regulatory cooperation available online or otherwise made available through the contact points.
4. The Parties shall notify each other promptly of any change of their contact point or any amendments to the details of the relevant officials.
13.4. Cooperation
1. The Parties shall cooperate in order to facilitate the implementation of this Chapter and to maximise the benefits arising from it. Regulatory cooperation activities shall take into consideration each Party's needs, and may include:
(a) bilateral information exchanges, dialogues or meetings between policy officials in agencies responsible for regulatory management of the Parties;
(b) bilateral information exchanges, dialogues or meetings between policy officials in regulatory agencies or regulators of the Parties;
(c) formal cooperation, such as mutual recognition, equivalence or harmonisation; and
(d) other activities that the Parties may agree to.
2. The Parties may undertake regulatory cooperation activities on a voluntary basis. For greater certainty, a Party is not required to enter into any particular regulatory cooperation activity.
3. The Parties acknowledge the importance of regulators having a mandate and powers that enable them to cooperate with each other. The Parties, through the contact point, shall encourage its regulators to consider cooperating with their counterparts in the other Party to reduce barriers to trade and investment.
4. The contact points shall ensure that work on regulatory cooperation under this Chapter offers value in addition to initiatives underway in other relevant fora or parts of this Agreement and avoids undermining or duplicating such efforts.
5. The Parties shall use the English language for regulatory cooperation activities under this Chapter to facilitate cooperation between relevant regulatory departments and agencies.
13.5. Relationship to other Chapters
In the event of any inconsistency between this Chapter and another Chapter of this Agreement, the other Chapter shall prevail to the extent of the inconsistency.
13.6. Dispute Settlement
No Party shall have recourse to dispute settlement under Chapter 14 (Dispute Settlement) for any matter arising under this Chapter.
Chapter 14. DISPUTE SETTLEMENT
14.1. Scope
1. The rules and procedures of this Chapter shall apply with respect to the avoidance or settlement of disputes between the Parties concerning their rights and obligations under this Agreement, but are without prejudice to the rights of the Parties to have recourse to dispute settlement procedures available under other agreements to which they are party.
2. For the avoidance of doubt, the Parties agree that the provisions of this Agreement shall be interpreted in accordance with the general principles of international law and consistently with the objectives set out in Article 1.1 (Objectives).