Article 26.8. Promoting Integrity Among Public Officials
1. To fight corruption in matters that affect trade and investment, each Party should promote, among other things, integrity, honesty and responsibility among its public officials. To this end, each Party shall endeavour, in accordance with the fundamental principles of its legal system, to adopt or maintain:
(a) measures to provide adequate procedures for the selection and training of individuals for public positions considered especially vulnerable to corruption, and the rotation, if appropriate, of those individuals to other positions;
(b) measures to promote transparency in the behaviour of public officials in the exercise of public functions;
(c) appropriate policies and procedures to identify and manage actual or potential conflicts of interest of public officials;
(d) measures that require senior and other appropriate public officials to make declarations to appropriate authorities regarding, among other things, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials; and
(e) measures to facilitate reporting by public officials of acts of corruption to appropriate authorities, if those acts come to their notice in the performance of their functions.
2. Each Party shall endeavour to adopt or maintain codes or standards of conduct for the correct, honourable and proper performance of public functions, and measures providing for disciplinary or other measures, if warranted, against public officials who violate the codes or standards established in accordance with this paragraph.
3. Each Party, to the extent consistent with the fundamental principles of its legal system, shall consider establishing procedures through which a public official accused of an offence described in Article 26.7.1 (Measures to Combat Corruption) may, where appropriate, be removed, suspended or reassigned by the appropriate authority, bearing in mind respect for the principle of the presumption of innocence.
4. Each Party shall, in accordance with the fundamental principles of its legal system and without prejudice to judicial independence, adopt or maintain measures to strengthen integrity, and to prevent opportunities for corruption, among members of the judiciary in matters that affect international trade or investment. These measures may include rules with respect to the conduct of members of the judiciary.
Article 26.9. Application and Enforcement of Anti-Corruption Laws
1. In accordance with the fundamental principles of its legal system, no Party shall fail to effectively enforce its laws or other measures adopted or maintained to comply with Article 26.7.1 (Measures to Combat Corruption) through a sustained or recurring course of action or inaction, after the date of entry into force of this Agreement for that Party, as an encouragement for trade and investment. (8)
2. In accordance with the fundamental principles of its legal system, cach Party retains the right for its law enforcement, prosecutorial and judicial authorities to exercise their discretion with respect to the enforcement of its anti- corruption laws. Each Party retains the right to take bona fide decisions with regard to the allocation of its resources.
3. The Parties affirm their commitments under applicable international agreements or arrangements to cooperate with each other, consistent with their respective legal and administrative systems, to enhance the effectiveness of law enforcement actions to combat the offences described in Article 26.7.1 (Measures to Combat Corruption).
Article 26.10. Participation of Private Sector and Society
1. Each Party shall take appropriate measures, within its means and in accordance with fundamental principles of its legal system, to promote the active participation of individuals and groups outside the public sector, such as enterprises, civil society, non-governmental organisations and community-based organisations, in the prevention of and the fight against corruption in matters affecting international trade or investment, and to raise public awareness regarding the existence, causes and gravity of, and the threat posed by, corruption. To this end, a Party may:
(a) undertake public information activities and public education programmes that contribute to non-tolerance of corruption;
(b) adopt or maintain measures to encourage professional associations and other non-governmental organisations, if appropriate, in their efforts to encourage and assist enterprises, in particular SMEs, in developing internal controls, ethics and compliance programmes or measures for preventing and detecting bribery and corruption in international trade and investment;
(c) adopt or maintain measures to encourage company management to make statements in their annual reports or otherwise publicly disclose their internal controls, ethics and compliance programmes or measures, including those that contribute to preventing and detecting bribery and corruption in international trade and investment; and
(d) adopt or maintain measures that respect, promote and protect the freedom to seek, receive, publish and disseminate information concerning corruption.
2. Each Party shall endeavour to encourage private enterprises, taking into account their structure and size, to:
(a) develop and adopt sufficient internal auditing controls to assist in preventing and detecting acts of corruption in matters affecting international trade or investment; and
(b) ensure that their accounts and required financial statements are subject to appropriate auditing and certification procedures.
3. Each Party shall take appropriate measures to ensure that its relevant anti- corruption bodies are known to the public and shall provide access to those bodies, if appropriate, for the reporting, including anonymously, of any incident that may be considered to constitute an offence described in Article 26.7.1 (Measures to Combat Corruption).
Article 26.11. Relation to other Agreements
Subject to Article 26.6.4 (Scope), nothing in this Agreement shall affect the rights and obligations of the Parties under UNCAC, the United Nations Convention against Transnational Organized Crime, done at New York on November 15, 2000, the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, with its Annex, done at Paris on November 21, 1997, or the Inter-American Convention Against Corruption, done at Caracas on March 29, 1996.
Article 26.12. Dispute Settlement
1. Chapter 28 (Dispute Settlement), as modified by this Article, shall apply to this Section.
2. A Party may only have recourse to the procedures set out in this Article and Chapter 28 (Dispute Settlement) if it considers that a measure of another Party is inconsistent with an obligation under this Section, or that another Party has otherwise failed to carry out an obligation under this Section, in a manner affecting trade or investment between Parties.
3. No Party shall have recourse to dispute settlement under this Article or Chapter 28 (Dispute Settlement) for any matter arising under Article 26.9 (Application and Enforcement of Anti-Corruption Laws).
4. Article 28.5 (Consultations) shall apply to consultations under this Section, with the following modifications:
(a) a Party other than a consulting Party may make a request in writing to the consulting Parties to participate in the consultations, no later than seven days after the date of circulation of the request for consultations, if it considers that its trade or investment is affected by the matter at issue. That Party shall include in its request an explanation of how its trade or investment is affected by the matter at issue. That Party may participate in consultations if the consulting Parties agree; and
(b) the consulting Parties shall involve officials of their relevant anti- corruption authorities in the consultations.
5. The consulting Parties shall make every effort to find a mutually satisfactory solution to the matter, which may include appropriate cooperative activities or a work plan.
Chapter 27. ADMINISTRATIVE AND INSTITUTIONAL PROVISIONS
Article 27.1. Establishment of the Trans-Pacific Partnership Commission
The Parties hereby establish a Trans-Pacific Partnership Commission (Commission), composed of government representatives of each Party at the level of Ministers or senior officials. Each Party shall be responsible for the composition of its delegation.
Article 27.2. Functions of the Commission
1. The Commission shall:
(a) consider any matter relating to the implementation or operation of this Agreement;
(b) review, within three years of the date of entry into force of this Agreement and at least every five years thereafter, the economic relationship and partnership among the Parties;
(c) consider any proposal to amend or modify this Agreement;
(d) supervise the work of all committees, working groups and any other subsidiary bodies established under this Agreement;
(e) consider ways to further enhance trade and investment between the Parties;
(f) establish the Rules of Procedure referred to in Article 28.13 (Rules of Procedure for Panels), and, where appropriate, amend those Rules;
(g) review the roster of panel chairs established under Article 28.11 (Roster of Panel Chairs and Party Specific Lists) every three years and, when appropriate, constitute a new roster; and
(h) determine whether this Agreement may enter into force for an original signatory notifying pursuant to Article 30.5.4 (Entry into Force).
2. The Commission may:
(a) establish, refer matters to, or consider matters raised by, any ad hoc or standing committee, working group or any other subsidiary body;
(b) merge or dissolve any committees, working groups or other subsidiary bodies established under this Agreement in order to improve the functioning of this Agreement;
(c) consider and adopt, subject to completion of any necessary legal procedures by cach Party, a modification to this Agreement of: (1)
(i) the Schedules to Annex 2-D (Tariff Commitments), by accelerating tariff elimination;
(ii) the rules of origin established in Annex 3-D (Product- Specific Rules of Origin) and Annex 4-A (Textiles and Apparel Product-Specific Rules of Origin); or
(iii) the lists of entities, covered goods and services, and thresholds contained in each Party's Annex to Chapter 15 (Government Procurement);
(d) develop arrangements for implementing this Agreement;
(e) seek to resolve differences or disputes that may arise regarding the interpretation or application of this Agreement;
(f) issue interpretations of the provisions of this Agreement;
(g) seek the advice of non-governmental persons or groups on any matter falling within the Commission's functions; and
(h) take any other action as the Parties may agree.
3. Pursuant to paragraph 1(b), the Commission shall review the operation of this Agreement with a view to updating and enhancing this Agreement, through negotiations, as appropriate, to ensure that the disciplines contained in this Agreement remain relevant to the trade and investment issues and challenges confronting the Parties.
4. In conducting a review pursuant to paragraph 3, the Commission shall take into account:
(a) the work of all committees, working groups and any other subsidiary bodies established under this Agreement;
(b) relevant developments in international fora; and
(c) as appropriate, input from non-governmental persons or groups of the Parties.
Article 27.3. Decision-Making
1. The Commission and all subsidiary bodies established under this Agreement shall take all decisions by consensus, except as otherwise provided in this Agreement, or as otherwise decided by the Parties. (2) Except as otherwise provided in this Agreement, the Commission or any subsidiary body shall be deemed to have taken a decision by consensus if no Party present at any meeting when a decision is taken objects to the proposed decision.
2. For the purposes of Article 27.2.2(f) (Functions of the Commission), a decision of the Commission shall be taken by agreement of all Parties. A decision shall be deemed to be reached if a Party which does not indicate agreement when the Commission considers the issue does not object in writing to the interpretation considered by the Commission within five days of that consideration.
Article 27.4. Rules of Procedure of the Commission
1. The Commission shall meet within one year of the date of entry into force of this Agreement and thereafter as the Parties may decide, including as necessary to fulfil its functions under Article 27.2 (Functions of the Commission). Meetings of the Commission shall be chaired successively by each Party.
2. The Party chairing a session of the Commission shall provide any necessary administrative support for such session, and shall notify the other Parties of any decision of the Commission.
3. Except as otherwise provided in this Agreement, the Commission and any subsidiary body established under this Agreement shall carry out its work through whatever means are appropriate, which may include electronic mail or videoconferencing.
4. The Commission and any subsidiary body established under this Agreement may establish rules of procedures for the conduct of its work.
Article 27.5. Contact Points
1. Each Party shall designate an overall contact point to facilitate communications between the Parties on any matter covered by this Agreement, as well as other contact points as required by this Agreement.
2. Unless otherwise provided in this Agreement, each Party shall notify the other Parties in writing of its designated contact points no later than 60 days after the date of entry into force of this Agreement for that Party. A Party shall notify any Party for which this Agreement enters into force at a later date of its designated contact points, no later than 30 days after the date on which the other Party has notified its designated contact points.
Article 27.6. Administration of Dispute Settlement Proceedings
1. Each Party shall:
(a) designate an office to provide administrative assistance to a panel established under Chapter 28 (Dispute Settlement) for a proceeding in which it is a disputing Party and to perform such other related functions as the Commission may direct; and
(b) notify the other Parties of the location of its designated office.
2. Each Party shall be responsible for the operation and costs of its designated office.
Article 27.7. Reporting In Relation to Party-specific Transition Periods
1. At each regular meeting of the Commission, any Party which has a Party-specific transition period for any obligation under this Agreement shall report on its plans for and progress towards implementing the obligation.
2. In addition, any such Party shall provide a written report to the Commission on its plans for and progress towards implementing each such obligation as follows:
(a) for any transition period of three years or less, the Party shall provide a written report six months before the expiration of the transition period; and
(b) for any transition period of more than three years, the Party shall provide a yearly written report on the anniversary date of entry into force of this Agreement for it, beginning on the third anniversary, and a written report six months before the expiration of the transition period.
3. Any Party may request additional information regarding another Party's progress towards implementing the obligation. The reporting Party shall promptly reply to those requests.
4. No later than the date on which a transition period expires, a Party with a Party-specific transition period shall provide written notification to the other Parties of what measures it has taken to implement the obligation for which it has a transition period.
5. If a Party fails to provide the notification referred to in paragraph 4, the matter shall be automatically placed on the agenda for the next regular meeting of the Commission. In addition, any Party may request that the Commission meet promptly to discuss that matter.
Chapter 28. DISPUTE SETTLEMENT
Section A. Dispute Settlement
Article 28.1. Definitions
For the purposes of this Chapter:
complaining Party means a Party that requests the establishment of a panel under Article 28.7.1 (Establishment of a Panel);
consulting Party means a Party that requests consultations under Article 28.5.1 (Consultations) or the Party to which the request for consultations is made;
disputing Party means a complaining Party or a responding Party; panel means a panel established under Article 28.7 (Establishment of a Panel);
perishable goods means perishable agricultural and fish goods classified in HS Chapters 1 through 24;
responding Party means a Party that has been complained against under Article 28.7 (Establishment of a Panel);
Rules of Procedure means the rules referred to in Article 28.13 (Rules of Procedure for Panels) and established in accordance with Article 27.2.1(f) (Functions of the Commission); and
third Party means a Party, other than a disputing Party, that delivers a written notice in accordance with Article 28.14 (Third Party Participation).
Article 28.2. Cooperation
The Parties shall at all times endeavour to agree on the interpretation and application of this Agreement, and shall make every attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect its operation or application.
Article 28.3. Scope
1. Unless otherwise provided in this Agreement, the dispute settlement provisions of this Chapter shall apply:
(a) with respect to the avoidance or settlement of all disputes between the Parties regarding the interpretation or application of this Agreement;
(b) when a Party considers that an actual or proposed measure of another Party is or would be inconsistent with an obligation of this Agreement or that another Party has otherwise failed to carry out an obligation under this Agreement; or
(c) when a Party considers that a benefit it could reasonably have expected to accrue to it under Chapter 2 (National Treatment and Market Access for Goods), Chapter 3 (Rules of Origin and Origin Procedures), Chapter 4 (Textile and Apparel Goods), Chapter 5 (Customs Administration and Trade Facilitation), Chapter 8 (Technical Barriers to Trade), Chapter 10 (Cross-Border Trade in Services) or Chapter 15 (Government Procurement), is being nullified or impaired as a result of the application of a measure of another Party that is not inconsistent with this Agreement.
2. No later than six months after the effective date that Members of the WTO have the right to initiate non-violation nullification or impairment complaints under Article 64 of the TRIPS Agreement, the Parties shall consider whether to amend paragraph 1(c) to include Chapter 18 (Intellectual Property).
3. An instrument entered into by two or more Parties in connection with the conclusion of this Agreement:
(a) does not constitute an instrument related to this Agreement within the meaning of paragraph 2(b) of Article 31 of the Vienna Convention on the Law of Treaties, done at Vienna on May 23, 1969 and shall not affect the rights and obligations under this Agreement of Parties which are not party to the instrument; and
(b) may be subject to the dispute settlement procedures under this Chapter for any matter arising under the instrument if that instrument so provides.
Article 28.4. Choice of Forum
1. If a dispute regarding any matter arises under this Agreement and under another international trade agreement to which the disputing Parties are party, including the WTO Agreement, the complaining Party may select the forum in which to settle the dispute.
2. Once a complaining Party has requested the establishment of, or referred a matter to, a panel or other tribunal under an agreement referred to in paragraph 1, the forum selected shall be used to the exclusion of other fora.
Article 28.5. Consultations
1. Any Party may request consultations with any other Party with respect to any matter described in Article 28.3 (Scope). The Party making the request for consultations shall do so in writing, and shall set out the reasons for the request, including identification of the actual or proposed measure (1) or other matter at issue and an indication of the legal basis for the complaint. The requesting Party shall circulate the request concurrently to the other Parties through the overall contact points designated under Article 27.5.1 (Contact Points).
2. The Party to which a request for consultations is made shall, unless the consulting Parties agree otherwise, reply in writing to the request no later than seven days after the date of its receipt of the request. (2) That Party shall circulate its reply concurrently to the other Parties through the overall contact points and enter into consultations in good faith.
3. A Party other than a consulting Party that considers it has a substantial interest in the matter may participate in the consultations by notifying the other Parties in writing no later than seven days after the date of circulation of the request for consultations. The Party shall include in its notice an explanation of its substantial interest in the matter.
4. Unless the consulting Parties agree otherwise, they shall enter into consultations no later than:
(a) 15 days after the date of receipt of the request for matters concerning perishable goods; or
(b) 30 days after the date of receipt of the request for all other matters.
5. Consultations may be held in person or by any technological means available to the consulting Parties. If the consultations are held in person, they shall be held in the capital of the Party to which the request for consultations was made, unless the consulting Parties agree otherwise.
6. The consulting Parties shall make every attempt to reach a mutually satisfactory resolution of the matter through consultations under this Article. To this end:
(a) each consulting Party shall provide sufficient information to enable a full examination of how the actual or proposed measure might affect the operation or application of this Agreement; and
(b) a Party that participates in the consultations shall treat any information exchanged in the course of the consultations that is designated as confidential on the same basis as the Party providing the information.
7. In consultations under this Article, a consulting Party may request that another consulting Party make available personnel of its government agencies or other regulatory bodies who have expertise in the matter at issue.
8. Consultations shall be confidential and without prejudice to the rights of any Party in any other proceedings.
Article 28.6. Good Offices, Conciliation and Mediation
1. Parties may at any time agree to voluntarily undertake an alternative method of dispute resolution, such as good offices, conciliation or mediation.
2. Proceedings that involve good offices, conciliation or mediation shall be confidential and without prejudice to the rights of the Parties in any other proceedings.
3. Parties participating in proceedings under this Article may suspend or terminate those proceedings at any time.
4. If the disputing Parties agree, good offices, conciliation or mediation may continue while the dispute proceeds for resolution before a panel established under Article 28.7 (Establishment of a Panel).
Article 28.7. Establishment of a Panel
1. A Party that requested consultations under Article 28.5.1 (Consultations) may request, by means of a written notice addressed to the responding Party, the establishment of a panel if the consulting Parties fail to resolve the matter within:
(a) a period of 60 days after the date of receipt of the request for consultations under Article 28.5.1 (Consultations);
(b) a period of 30 days after the date of receipt of the request for consultations under Article 28.5.1 (Consultations) in a matter regarding perishable goods; or
(c) any other period as the consulting Parties may agree.
2. The complaining Party shall circulate the request concurrently to all Parties through the overall contact points designated under Article 27.5.1 (Contact Points).
3. The complaining Party shall include in the request to establish a panel an identification of the measure or other matter at issue and a brief summary of the legal basis of the complaint sufficient to present the problem clearly.
4. A panel shall be established upon delivery of the request.
5. Unless the disputing Parties agree otherwise, the panel shall be composed in a manner consistent with this Chapter and the Rules of Procedure.
6. If a panel has been established regarding a matter and another Party requests the establishment of a panel regarding the same matter, a single panel should be established to examine those complaints whenever feasible.
7. A panel shall not be established to review a proposed measure.