(b) establish, or strengthen existing, collaboration mechanisms for cooperating to anticipate, identify and mitigate malicious intrusions or dissemination of malicious code that affect electronic networks, and use those mechanisms to swiftly address cybersecurity incidents; and
(c) maintain a dialogue on matters related to cybersecurity, including for the sharing of information and experiences for awareness and best practices in respect of risk-based approaches to addressing cybersecurity threats.
2. Given the evolving nature of cybersecurity threats, the Parties recognise that risk-based approaches may be more effective than prescriptive approaches in addressing those threats. Accordingly, each Party shall endeavour to encourage legal persons within its jurisdiction to use risk-based approaches to protect against cybersecurity risks.
Article 4.16. Cooperation on Regulatory Issues with Regard to Digital Trade
1. The Parties shall, where appropriate, cooperate and participate actively in multilateral fora, including the WTO, to promote the development of international frameworks for digital trade.
2. The Parties shall endeavour to cooperate on regulatory matters of mutual interest in the context of digital trade, including:
(a) the recognition and facilitation of interoperable electronic authentication and electronic trust services;
(b) the treatment of unsolicited commercial electronic messages;
(c) the conclusion and use of electronic contracts; and
(d) the protection of consumers.
Article 4.17. Emerging Technology Dialogue
1. The Parties recognise the importance of:
(a) emerging technology as a contributor to economic growth and quality of life;
(b) developing standards relating to emerging technology;
(c) promoting public trust in the development and use of emerging technology;
(d) facilitating and promoting investment in emerging technology research and development;
(e) training workforces to use emerging technology; and
(f) collaboration between government and non-governmental entities in relation to the development, use and regulation of emerging technology.
2. The Parties shall establish a strategic dialogue on emerging technology (Dialogue), which shall meet as decided by the Parties. The Parties shall, through the Dialogue, endeavour to:
(a) cooperate on issues and developments relating to emerging technology, such as ethical use, human diversity and unintended biases, technical standards and algorithmic transparency;
(b) exchange information, and share experiences and best practices on laws, regulations, policies, enforcement and compliance relating to emerging technology;
(c) promote collaboration between government and non-governmental entities of the Parties in relation to investment, research and development opportunities in emerging technology;
(d) promote the involvement of non-governmental persons or groups in the Dialogue; and
(e) discuss any other matter related to this Article they consider appropriate.
Chapter 5. CAPITAL MOVEMENTS, PAYMENTS AND TRANSFERS (57)
Article 5.1. Objectives
The objective of this Chapter is to enable the free movement of capital and payments related to transactions liberalised under this Agreement.
Article 5.2. Current Account
Each Party shall allow, in freely convertible currency and in accordance with the Articles of Agreement of the International Monetary Fund, any payments and transfers with respect to transactions on the current account of the balance of payments that fall within the scope of this Agreement.
Article 5.3. Capital Movements
1. Each Party shall allow, with regard to transactions on the capital and financial account of the balance of payments, the free movement of capital for the purpose of liberalisation of investment and other transactions as provided for in Chapter 3 (Services and Investment).
2. The Parties shall consult each other in the Sub-Committee on Services and Investment, to facilitate the movement of capital between them in order to promote trade and investment.
Article 5.4. Measures Affecting Capital Movements, Payments or Transfers
1. Articles 5.2 (Current Account) and 5.3 (Capital Movements) shall not be construed as preventing a Party from applying its law relating to:
(a) bankruptcy, insolvency, or the protection of the rights of creditors;
(b) issuing, trading or dealing in securities, or futures, options and other financial instruments;
(c) financial reporting or record keeping of capital movements, payments or transfers where necessary to assist law enforcement or financial regulatory authorities;
(d) criminal or penal offences, deceptive or fraudulent practices;
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings; or
(f) social security, public retirement or compulsory savings schemes.
2. The law referred to in paragraph 1 shall not be applied in an arbitrary or discriminatory manner, or otherwise constitute a disguised restriction on capital movements, payments or transfers.
Article 5.5. Restrictions In Case of Balance of Payments and External Financial Difficulties
1. If a Party experiences serious balance of payments or external financial difficulties, or threat thereof, it may adopt or maintain restrictive measures with regard to capital movements, payments or transfers. (58)
2. The measures referred to in paragraph 1 shall:
(a) be consistent with the Articles of Agreement of the International Monetary Fund;
(b) not exceed those necessary to deal with the circumstances described in paragraph 1;
(c) be temporary and be phased out progressively as the situation specified in paragraph 1 improves;
(d) avoid unnecessary damage to the commercial, economic and financial interests of the other Parties; and
(e) be non-discriminatory as compared with third countries in like situations.
3. In the case of trade in goods, each Party may adopt or maintain restrictive measures in order to safeguard its external financial position or balance of payments. Those measures shall be in accordance with GATT 1994 and the Understanding on the Balance of Payments provisions of the GATT 1994.
4. In the case of trade in services, each Party may adopt or maintain restrictive measures in order to safeguard its external financial position or balance of payments. Those measures shall be in accordance with Article XII of GATS.
5. A Party maintaining or having adopted measures referred to in paragraphs 1 and 2 shall promptly notify them to the other Parties in writing, along with the rationale for their imposition, within 30 days of their adoption or maintenance.
6. If a Party adopts or maintains restrictions under this Article, the Parties shall promptly hold consultations in the Sub-Committee on Services and Investment unless consultations are held in other fora. That Sub-Committee shall assess the balance of payments or external financial difficulties that led to the respective measures, taking into account factors such as:
(a) the nature and extent of the difficulties;
(b) the external economic and trading environment; and
(c) alternative corrective measures which may be available.
7. The consultations under paragraph 6 shall address the compliance of any restrictive measures with paragraphs 1 and 2. All relevant findings of a statistical or factual nature presented by the International Monetary Fund, where available, shall be accepted and conclusions shall take into account the assessment by the International Monetary Fund of the balance of payments and the external financial situation of the Party concerned.
Chapter 6. GOVERNMENT PROCUREMENT
Article 6.1. Scope and Coverage
1. The provisions of the WTO Revised Agreement on Government Procurement (2012) (GPA), specified in Appendix 1 to Annex XXI (Government Procurement) to this Agreement, including the Annexes of each Party to Appendix 1 to the GPA, are hereby incorporated into and made part of this Agreement, mutatis mutandis.
2. For the purposes of this Chapter, “covered procurement” means procurement to which Article II of the GPA applies and, in addition, procurement listed in Appendix 2 to Annex XXI (Government Procurement) to this Agreement.
3. With regard to covered procurement, each Party shall apply, mutatis mutandis, the provisions of the GPA specified in Appendix 1 to Annex XXI (Government Procurement) to this Agreement, on a bilateral basis, to suppliers, goods or services of another Party. Each Party shall also apply, with regard to covered procurement, the provisions on value of thresholds in Appendix 5 to Annex XXI (Government Procurement).
Article 6.2. Additional Disciplines
In addition to the provisions referred to under Article 6.1 (Scope and Coverage), the Parties shall apply the provisions in Articles 6.3 (Use of Electronic Means); 6.4 (Electronic Publication of Procurement Notices); 6.5 (Supporting Evidence); 6.6 (Conditions for Participation); 6.7 (Registration Systems and Qualification Procedures); 6.8 (Selective Tendering); 6.9 (Abnormally Low Prices); 6.10 (Facilitating Participation of Small and Medium-Sized Enterprises (SME)); 6.11 (Environmental, Social and Labour Considerations); 6.12 (Modifications and Rectifications of Market Access Commitments); 6.13 (Modifications); 6.14 (Rectifications) and 6.15 (Further Negotiations).
Article 6.3. Use of Electronic Means
1. Each Party shall ensure that its procuring entities conduct covered procurement by electronic means to the widest extent practicable.
2. A procuring entity is considered as conducting covered procurement by electronic means if the entity uses electronic means of information and communication for:
(a) the publication of notices and tender documentation in procurement procedures; and
(b) the submission of requests to participate and the submission of tenders.
3. Except for specific situations, such electronic means of information and communication shall be non-discriminatory, generally available and interoperable with the information and communication technology products in general use and shall not restrict access to the procurement procedure.
4. Each Party shall ensure that its procuring entities receive and process electronic invoices in accordance with its law.
Article 6.4. Electronic Publication of Procurement Notices
1. With regard to covered procurement, all procurement notices including notices of intended procurement, summary notices, notices of planned procurement and contract award notices shall be directly accessible by electronic means, free of charge, through a single point of access on the internet.
2. Each Party shall publish notices in accordance with Appendix 3 to Annex XXI (Government Procurement).
Article 6.5. Supporting Evidence
Each Party shall ensure that at the time of submission of requests to participate or at the time of submission of tenders, procuring entities do not require suppliers to submit all or part of the supporting evidence that they are not in one of the situations in which a supplier may be excluded and that they fulfil the conditions for participation unless this is necessary to ensure the proper conduct of the procurement.
Article 6.6. Conditions for Participation
Each Party shall ensure that where its procuring entities require a supplier, as a condition for participation in a covered procurement, to demonstrate prior experience they do not require that the supplier has such experience in that Party.
Article 6.7. Registration Systems and Qualification Procedures
A Party that maintains a supplier registration system shall ensure that interested suppliers may request registration at any time. Any interested supplier having made a request shall be informed within a reasonable period of time of the decision to grant or reject this request.
Article 6.8. Selective Tendering
Each Party shall ensure that where a procuring entity uses a selective tendering procedure, the procuring entity addresses invitations to submit a tender to a number of suppliers that is sufficient to ensure genuine competition without affecting the operational efficiency of the procurement system.
Article 6.9. Abnormally Low Prices
Further to paragraph 6 of Article XV of the GPA, if a procuring entity receives a tender with a price that is abnormally lower than the prices in other tenders submitted, it may also verify with the supplier whether the price takes into account the grant of subsidies.
Article 6.10. Facilitating Participation of Small and Medium-Sized Enterprises (SMEs)
1. The Parties recognise the important contribution of SMEs to economic growth and employment and the importance of facilitating their participation in government procurement.
2. If a Party maintains a measure that provides preferential treatment for SMEs, the Party shall ensure that the measure, including the criteria foreligibility, is transparent and non-discriminatory against suppliers from the other Parties.
3. If available, a Party shall, upon request of another Party, provide information regarding its measures aimed at promoting, encouraging and facilitating the participation of SMEs in government procurement. The Parties’ contact points are listed in Appendix 4 to Annex XXI (Government Procurement).
4. With a view to facilitating participation by SMEs in government procurement, each Party shall, to the extent possible, and if appropriate:
(a) provide comprehensive procurement-related information in a single electronic portal;
(b) endeavour to make all tender documentation available free of charge;
(c) conduct procurement by electronic means or through other new information and communication technologies; and
(d) consider the size, design, and structure of the procurement.
Article 6.11. Environmental, Social and Labour Considerations
Each Party shall:
(a) allow procuring entities to take into account environmental, labour and social considerations throughout the procurement procedure, provided they are non-discriminatory and are not applied in a discriminatory manner; and
(b) take appropriate measures to ensure compliance with its obligations under environmental, social and labour law, including those established under Chapter 13 (Trade and Sustainable Development).
Article 6.12. Modifications and Rectifications of Market Access Commitments
Each Party may modify or rectify its market access commitments in Appendix 2 to Annex XXI (Government Procurement) in accordance with the procedures set out in Articles 6.13 (Modifications) and 6.14 (Rectifications).
Article 6.13. Modifications
1. A Party intending to modify Appendix 2 to Annex XXI (Government Procurement), shall:
(a) notify the other Parties in writing; and
(b) include in the notification a proposal for appropriate compensatory adjustments to the other Parties to maintain a level of market access commitments comparable to that existing prior to the modification.
2. Notwithstanding point (b) of paragraph 1, a Party is not required to provide compensatory adjustments to the other Parties if the proposed modification covers a procuring entity over which the Party has effectively eliminated its control or influence in respect of covered procurement.
3. A Party’s control or influence over the covered procurement of procuring entities is presumed to be effectively eliminated if the procuring entity is exposed to competition in markets to which access is not restricted.
4. Any other Party may object to the modification referred to in point (a) of paragraph 1 if it disputes that:
(a) a compensatory adjustment proposed under point (b) of paragraph 1 is adequate to maintain a comparable level of mutually agreed market access commitments; or
(b) the modification covers a procuring entity over which the Party has effectively eliminated its control or influence as provided for in paragraph 2.
5. A Party shall object in writing within 45 days of receipt of the notification referred to in point (a) of paragraph 1 or that Party will be deemed to have accepted the compensatory adjustment or modification, including for the purposes of Chapter 16 (Dispute Settlement).
Article 6.14. Rectifications
1. A Party intending to rectify Appendix 2 to Annex XXI (Government Procurement) shall notify the other Parties in writing.
2. The following changes to an Appendix to Annex XXI (Government Procurement) shall be considered a rectification, provided that they do not affect the mutually agreed market access commitments provided for in this Chapter:
(a) a change in the name of a procuring entity;
(b) a merger of two or more procuring entities listed within that Sub-Section; and
(c) the separation of a procuring entity listed in that Sub-Section into two or more procuring entities that are added to the procuring entities listed in the same Sub-Section.
3. A Party may notify the other Parties of an objection to a proposed rectification within 45 days from having received the notification. A Party submitting an objection shall set out the reasons for considering the proposed rectification not as a change provided for in paragraph 1, and describe the effect of the proposed rectification on the mutually agreed market access commitments provided for in this Chapter. If no such objection is submitted in writing within 45 days after having received the notification, the other Parties shall be deemed to have agreed to the proposed rectification.
Article 6.15. Further Negotiations
In case a Party in the future offers additional benefits with regard to its respective government procurement market access coverage agreed under this Chapter to a non-party, it shall agree, upon request of another Party, to enter into negotiations with a view to extending coverage under this Chapter on a reciprocal basis.
Chapter 7. CHAPTER 7 INTELLECTUAL PROPERTY (59)
Section 7.1. GENERAL PROVISIONS
Article 7.1. Objectives
The objectives of this Chapter are to:
(a) facilitate the production, provision and commercialisation of innovative and creative products and services between the Parties by reducing distortions and impediments to such trade, thereby contributing to a more sustainable and inclusive economy; and
(b) ensure an adequate effective and non-discriminatory level of protection and enforcement of intellectual property rights.
Article 7.2. Scope
1. This Chapter shall complement the rights and obligations of each Party under the Agreement on Trade-Related Aspects of Intellectual Property Rights, done at Marrakesh on 15 April 1994 (TRIPS Agreement) and other international treaties in the field of intellectual property to which they are parties.
2. This Chapter does not preclude a Party from introducing more extensive protection and enforcement of intellectual property rights than required under this Chapter, provided that such protection and enforcement does not contravene this Chapter.
Article 7.3. Definitions
For the purposes of this Chapter, the following definitions apply:
(a) “Paris Convention” means the Paris Convention for the Protection of Industrial Property of 20 March 1883, as last revised at Stockholm on 14 July 1967;
(b) “Berne Convention” means the Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886 revised at Paris on 24 July 1971 and amended on 28 September 1979;
(c) “Rome Convention” means the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations done at Rome on 26 October 1961;
(d) “WIPO” means the World Intellectual Property Organization;
(e) “intellectual property rights” means copyrights, including the protection of computer programmes and compilations of data, as well as related rights, trademarks for goods and services, geographical indications for goods, and indications of source for goods and services, industrial designs, patents, plant varieties, topographies of integrated circuits, as well as undisclosed information; and
(f) “national” means, in respect of the relevant intellectual property right, a person of a Party that would meet the criteria for eligibility for protection provided for in the TRIPS Agreement and multilateral agreements concluded and administered under the auspices of WIPO, to which a Party is a contracting party.
Article 7.4. International Agreements
1. Subject to paragraph 2, the Parties affirm their commitment to comply with the international agreements to which they are party:
(a) the TRIPS Agreement;
(b) the Rome Convention;
(c) the Berne Convention;
(d) the Paris Convention;
(e) the WIPO Copyright Treaty, adopted at Geneva on 20 December 1996;
(f) the WIPO Performances and Phonograms Treaty, adopted at Geneva on 20 December 1996;
(g) the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, done at Budapest on 28 April 1977;
(h) the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on 27 June 1989, as last amended on 12 November 2007;
(i) the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, adopted at Marrakesh on 27 June 2013;
(j) the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs, adopted at Geneva on 2 July 1999;