Article 15.24. Further Negotiations
1. The Committee shall review this Chapter and may decide to hold further negotiations with a view to:
(a) improving market access coverage through enlargement of procuring entity lists and reduction of exclusions and exceptions as set out in Annex 15-A;
(b) revising the thresholds set out in Annex 15-A;
(c) revising the Threshold Adjustment Formula in Section H of Annex 15-A; and
(d) reducing and eliminating discriminatory measures.
2. No later than three years after the date of entry into force of this Agreement, the Parties shall commence negotiations with a view to achieving expanded coverage, including sub-central coverage (2). Parties may also agree to cover sub-central government procurement prior to or following the start of those negotiations.
Chapter 16. COMPETITION POLICY
Article 16.1. Competition Law and Authorities and Anticompetitive Business Conduct (1)
1. Each Party shall adopt or maintain national competition laws that proscribe anticompetitive business conduct, with the objective of promoting economic efficiency and consumer welfare, and shall take appropriate action with respect to that conduct. These laws should take into account the APEC Principles to Enhance Competition and Regulatory Reform, done at Auckland, September 13, 1999.
2. Each Party shall endeavour to apply its national competition laws to all commercial activities in its territory. (2) However, each Party may provide for certain exemptions from the application of its national competition laws provided that those exemptions are transparent and are based on public policy grounds or public interest grounds.
3. Each Party shall maintain an authority or authorities responsible for the enforcement of its national competition laws (national competition authorities). Each Party shall provide that it is the enforcement policy of that authority or authorities to act in accordance with the objectives set out in paragraph 1 and not to discriminate on the basis of nationality.
Article 16.2. Procedural Fairness In Competition Law Enforcement (3)
1. Each Party shall ensure that before it imposes a sanction or remedy against a person for violating its national competition laws, it affords that person:
(a) information about the national competition authority's competition concerns;
(b) a reasonable opportunity to be represented by counsel; and
(c) a reasonable opportunity to be heard and present evidence in its defence, except that a Party may provide for the person to be heard and present evidence within a reasonable time after it imposes an interim sanction or remedy.
In particular, each Party shall afford that person a reasonable opportunity to present evidence or testimony in its defence, including: if applicable, to offer the analysis of a properly qualified expert, to cross-examine any testifying witness; and to review and rebut the evidence introduced in the enforcement proceeding. (4)
2. Each Party shall adopt or maintain written procedures pursuant to which its national competition law investigations are conducted. If these investigations are not subject to definitive deadlines, each Party's national competition authorities shall endeavour to conduct their investigations within a reasonable time frame.
3. Each Party shall adopt or maintain rules of procedure and evidence that apply to enforcement proceedings concerning alleged violations of its national competition laws and the determination of sanctions and remedies thereunder. These rules shall include procedures for introducing evidence, including expert evidence if applicable, and shall apply equally to all parties to a proceeding.
4. Each Party shall provide a person that is subject to the imposition of a sanction or remedy for violation of its national competition laws with the opportunity to seek review of the sanction or remedy, including review of alleged substantive or procedural errors, in a court or other independent tribunal established under that Party's laws.
5. Each Party shall authorise its national competition authorities to resolve alleged violations voluntarily by consent of the authority and the person subject to the enforcement action. A Party may provide for such voluntary resolution to be subject to judicial or independent tribunal approval or a public comment period before becoming final.
6. If a Party's national competition authority issues a public notice that reveals the existence of a pending or ongoing investigation, that authority shall avoid implying in that notice that the person referred to in that notice has engaged in the alleged conduct or violated the Party's national competition laws.
7. If a Party's national competition authority alleges a violation of its national competition laws, that authority shall be responsible for establishing the legal and factual basis for the alleged violation in an enforcement proceeding. (5)
8. Each Party shall provide for the protection of business confidential information, and other information treated as confidential under its law, obtained by its national competition authorities during the investigative process. If a Party's national competition authority uses or intends to use that information in an enforcement proceeding, the Party shall, if it is permissible under its law and as appropriate, provide a procedure to allow the person under investigation timely access to information that is necessary to prepare an adequate defence to the national competition authority's allegations.
9. Each Party shall ensure that its national competition authorities afford a person under investigation for possible violation of the national competition laws of that Party reasonable opportunity to consult with those competition authorities with respect to significant legal, factual or procedural issues that arise during the investigation.
Article 16.3. Private Rights of Action (6)
1. For the purposes of this Article, "private right of action" means the right of a person to seek redress, including injunctive, monetary or other remedies, from a court or other independent tribunal for injury to that person's business or property caused by a violation of national competition laws, either independently or following a finding of violation by a national competition authority.
2. Recognising that a private right of action is an important supplement to the public enforcement of national competition laws, each Party should adopt or maintain laws or other measures that provide an independent private right of action.
3. If a Party does not adopt or maintain laws or other measures that provide an independent private right of action, the Party shall adopt or maintain laws or other measures that provide a right that allows a person:
(a) to request that the national competition authority initiate an investigation into an alleged violation of national competition laws; and
(b) to seek redress from a court or other independent tribunal following a finding of violation by the national competition authority.
4. Each Party shall ensure that a right provided pursuant to paragraph 2 or 3 is available to persons of another Party on terms that are no less favourable than those available to its own persons.
5. A Party may establish reasonable criteria for the exercise of any rights it creates or maintains in accordance with this Article.
Article 16.4. Cooperation
1. The Parties recognise the importance of cooperation and coordination between their respective national competition authorities to foster effective competition law enforcement in the free trade area. Accordingly, each Party shall:
(a) cooperate in the area of competition policy by exchanging information on the development of competition policy; and
(b) cooperate, as appropriate, on issues of competition law enforcement, including through notification, consultation and the exchange of information.
2. A Party's national competition authorities may consider entering into a cooperation arrangement or agreement with the competition authorities of another Party that sets out mutually agreed terms of cooperation.
3. The Parties agree to cooperate in a manner compatible with their respective laws, regulations and important interests, and within their reasonably available resources.
Article 16.5. Technical Cooperation
Recognising that the Parties can benefit by sharing their diverse experience in developing, applying and enforcing competition law and in developing and implementing competition policies, the Parties shall consider undertaking mutually agreed technical cooperation activities, subject to available resources, including:
(a) providing advice or training on relevant issues, including through the exchange of officials;
(b) exchanging information and experiences on competition advocacy, including ways to promote a culture of competition; and
(c) assisting a Party as it implements a new national competition law.
Article 16.6. Consumer Protection
1. The Parties recognise the importance of consumer protection policy and enforcement to creating efficient and competitive markets and enhancing consumer welfare in the free trade area.
2. For the purposes of this Article, fraudulent and deceptive commercial activities refers to those fraudulent and deceptive commercial practices that cause actual harm to consumers, or that pose an imminent threat of such harm if not prevented, for example:
(a) a practice of making misrepresentations of material fact, including implied factual misrepresentations, that cause significant detriment to the economic interests of misled consumers;
(b) a practice of failing to deliver products or provide services to consumers after the consumers are charged; or
(c) a practice of charging or debiting consumers' financial, telephone or other accounts without authorisation.
3. Each Party shall adopt or maintain consumer protection laws or other laws or regulations that proscribe fraudulent and deceptive commercial activities. (7)
4. The Parties recognise that fraudulent and deceptive commercial activities increasingly transcend national borders and that cooperation and coordination between the Parties is desirable to effectively address these activities.
5. Accordingly, the Parties shall promote, as appropriate, cooperation and coordination on matters of mutual interest related to fraudulent and deceptive commercial activities, including in the enforcement of their consumer protection laws.
6. The Parties shall endeavour to cooperate and coordinate on the matters set out in this Article through the relevant national public bodies or officials responsible for consumer protection policy, laws or enforcement, as determined by each Party and compatible with their respective laws, regulations and important interests and within their reasonably available resources.
Article 16.7. Transparency
1. The Parties recognise the value of making their competition enforcement policies as transparent as possible.
2. Recognising the value of the APEC Competition Law and Policy Database in enhancing the transparency of national competition laws, policies and enforcement activities, each Party shall endeavour to maintain and update its information on that database.
3. On request of another Party, a Party shall make available to the requesting Party public information concerning:
(a) its competition law enforcement policies and practices; and
(b) exemptions and immunities to its national competition laws, provided that the request specifies the particular good or service and market of concern and includes information explaining how the exemption or immunity may hinder trade or investment between the Parties.
4. Each Party shall ensure that a final decision finding a violation of its national competition laws is made in writing and sets out, in non-criminal matters, findings of fact and the reasoning, including legal and, if applicable, economic analysis, on which the decision is based.
5. Each Party shall further ensure that a final decision referred to in paragraph 4 and any order implementing that decision are published, or if publication is not practicable, are otherwise made available to the public in a manner that enables interested persons and other Parties to become acquainted with them. Each Party shall ensure that the version of the decision or order that is made available to the public does not include confidential information that is protected from public disclosure by its law.
Article 16.8. Consultations
In order to foster understanding between the Parties, or to address specific matters that arise under this Chapter, on request of another Party, a Party shall enter into consultations with the requesting Party. In its request, the requesting Party shall indicate, if relevant, how the matter affects trade or investment between the Parties. The Party addressed shall accord full and sympathetic consideration to the concerns of the requesting Party.
Article 16.9. Non-Application of Dispute Settlement
No Party shall have recourse to dispute settlement under Chapter 28 (Dispute Settlement) for any matter arising under this Chapter.
ANNEX 16-A . APPLICATION OF ARTICLE 16.2 (PROCEDURAL FAIRNESS IN COMPETITION LAW ENFORCEMENT), ARTICLE 16.3 (PRIVATE RIGHTS OF ACTION) AND ARTICLE 16.4 (COOPERATION) TO BRUNEI DARUSSALAM
1. If as of the date of entry into force of this Agreement, Brunei Darussalam does not have a national competition law which is in force and has not established a national competition authority, Article 16.2 (Procedural Fairness in Competition Law Enforcement), Article 16.3 (Private Rights of Action) and Article 16.4 (Cooperation) shall not apply to Brunei Darussalam for a period of no longer than 10 years after that date.
2. If Brunei Darussalam establishes a national competition authority or authorities before the end of the 10-year period, Article 16.2 (Procedural Fairness in Competition Law Enforcement), Article 16.3 (Private Rights of Action) and Article 16.4 (Cooperation) shall apply to Brunei Darussalam from the date of establishment.
3. During the 10 year period, Brunei Darussalam shall take such steps as may be necessary to ensure that it is in compliance with Article 16.2 (Procedural Fairness in Competition Law Enforcement), Article 16.3 (Private Rights of Action) and Article 16.4 (Cooperation) at the end of the 10-year period and shall endeavour to comply with these obligations before the end of such period. Upon request of a Party, Brunei Darussalam shall inform the Parties of its progress since entry into force of the Agreement in developing and implementing an appropriate national competition law and establishing a national competition authority or authorities.
Chapter 17. STATE-OWNED ENTERPRISES AND DESIGNATED MONOPOLIES
Article 17.1. Definitions
For the purposes of this Chapter:
Arrangement means the Arrangement on Officially Supported Export Credits, developed within the framework of the Organization for Economic Co-operation and Development (OECD), or a successor undertaking, whether developed within or outside of the OECD framework, that has been adopted by at least 12 original WTO Members that were Participants to the Arrangement as of January 1, 1979;
commercial activities means activities which an enterprise undertakes with an orientation toward profit-making (1) and which result in the production of a good or supply of a service that will be sold to a consumer in the relevant market in quantities and at prices determined by the enterprise; (2)
commercial considerations means price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale, or other factors that would normally be taken into account in the commercial decisions of a privately owned enterprise in the relevant business or industry;
designate means to establish, designate or authorise a monopoly, or to expand the scope of a monopoly to cover an additional good or service;
designated monopoly means a privately owned monopoly that is designated after the date of entry into force of this Agreement and any government monopoly that a Party designates or has designated;
government monopoly means a monopoly that is owned, or controlled through ownership interests, by a Party or by another government monopoly;
independent pension fund means an enterprise that is owned, or controlled through ownership interests, by a Party that:
(a) is engaged exclusively in the following activities:
(i) administering or providing a plan for pension, retirement, social security, disability, death or employee benefits, or any combination thereof solely for the benefit of natural persons who are contributors to such a plan and their beneficiaries; or
(ii) investing the assets of these plans;
(b) has a fiduciary duty to the natural persons referred to in subparagraph (a)(i); and
(c) is free from investment direction from the government of the Party; market means the geographical and commercial market for a good or service;
monopoly means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of the grant;
non-commercial assistance (4) means assistance to a state-owned enterprise by virtue of that state-owned enterprise's government ownership or control, where:
(a) "assistance" means:
(i) direct transfers of funds or potential direct transfers of funds or liabilities, such as:
(A) grants or debt forgiveness;
(B) loans, loan guarantees or other types of financing on terms more favourable than those commercially available to that enterprise; or
(C) equity capital inconsistent with the usual investment practice, including for the provision of risk capital, of private investors; or
(ii) goods or services other than general infrastructure on terms more favourable than those commercially available to that enterprise;
(b) "by virtue of that state-owned enterprise's government ownership or control" (5) means that the Party or any of the Party's state enterprises or state-owned enterprises:
(i) explicitly limits access to the assistance to the Party's state-owned enterprises;
(ii) provides assistance which is predominately used by the Party's state-owned enterprises;
(iii) provides a disproportionately large amount of the assistance to the Party's state-owned enterprises; or
(iv) otherwise favours the Party's state-owned enterprises through the use of its discretion in the provision of assistance;
public service mandate means a government mandate pursuant to which a state-owned enterprise makes available a service, directly or indirectly, to the general public in its territory; (6)
sovereign wealth fund means an enterprise owned, or controlled through ownership interests, by a Party that:
(a) serves solely as a special purpose investment fund or arrangement (7) for asset management, investment, and related activities, using financial assets of a Party; and
(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 such other principles and practices as may be agreed to by the Parties,
and includes any special purpose vehicles established solely for such 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 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 17.2. Scope (8)
1. This Chapter shall apply with respect to the activities of state-owned enterprises and designated monopolies of a Party that affect trade or investment between Parties within the free trade area. (9)
2. Nothing in this Chapter shall prevent a central bank or monetary authority of a Party from performing regulatory or supervisory activities or conducting monetary and related credit policy and exchange rate policy.
3. Nothing in this Chapter shall prevent 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 organisation or association, from exercising regulatory or supervisory authority over financial services suppliers.
4. Nothing in this Chapter shall prevent a Party, or one of its state enterprises or state-owned enterprises from undertaking activities 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.
5. This Chapter shall not apply with respect to a sovereign wealth fund of a Party (10), except:
(a) Article 17.6.1 and Article 17.6.3 (Non-commercial Assistance) shall apply with respect to a Party's indirect provision of non-commercial assistance through a sovereign wealth fund; and
(b) Article 17.6.2 (Non-commercial Assistance) shall apply with respect to a sovereign wealth fund's provision of non-commercial assistance.
6. This Chapter shall not apply with respect to:
(a) an independent pension fund of a Party; or
(b) an enterprise owned or controlled by an independent pension fund of a Party, except:
(i) Article 17.6.1 and Article 17.6.3 (Non-commercial Assistance) shall apply with respect to a Party's direct or indirect provision of non-commercial assistance to an enterprise owned or controlled by an independent pension fund; and
(ii) Article 17.6.1 and Article 17.6.3 (Non-commercial Assistance) shall apply with respect to a Party's indirect provision of non-commercial assistance through an enterprise owned or controlled by an independent pension fund.
7. This Chapter shall not apply to government procurement.
8. Nothing in this Chapter shall prevent a state-owned enterprise of a Party from providing goods or services exclusively to that Party for the purposes of carrying out that Party's governmental functions.
9. Nothing in this Chapter shall be construed to prevent a Party from:
(a) establishing or maintaining a state enterprise or a state-owned enterprise; or
(b) designating a monopoly.
10. Article 17.4 (Non-discriminatory Treatment and Commercial Considerations), Article 17.6 (Non-commercial Assistance) and Article 17.10 (Transparency) shall not apply to any service supplied in the exercise of governmental authority. (11)
11. Article 17.4.1(b), Article 17.4.1(c), Article 17.4.2(b) and Article 17.4.2(c) (Non-discriminatory Treatment and Commercial Considerations) shall 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 9.12.1 (Non-Conforming Measures), Article 10.7.1 (Non-Conforming Measures) or Article 11.10.1 (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 9.12.2 (Non-Conforming Measures), Article 10.7.2 (Non-Conforming Measures) or Article 11.10.2 (Non-Conforming Measures), as set out in its Schedule to Annex II or in Section B of its Schedule to Annex III.