(b) one or both of the following remedies, only if there has been such a breach:
(i) monetary damages and applicable interest; and
(ii) restitution of property, in which case the award shall provide that the respondent may pay monetary damages and any applicable interest, in lieu of restitution.
The arbitral tribunal may also award cost and attorney’s fees in accordance with applicable arbitration rules.
16. Subject to paragraph 15, in the case of subparagraph 2(b):
(a) an award of monetary damages and any applicable interest shall provide that the sum be paid to the juridical person referred to in that subparagraph;
(b) an award of restitution of property shall provide that restitution be made to the juridical person referred to in that subparagraph; and
(c) the award shall provide that it is made without prejudice to any right that any natural person or juridical person may have in the relief under applicable law.
17. The respondent may make available to the public in a timely manner all documents, including the award, submitted to or issued by the arbitral tribunal, subject to redaction of:
(a) confidential business information;
(b) information which is privileged or otherwise protected from disclosure under the laws and regulations of either Party; and
(c) information which shall be withheld pursuant to the relevant arbitration rules.
18. Unless the disputing parties agree otherwise, the place of arbitration shall be in a country that is a party to the New York Convention.
19. The award rendered by the arbitral tribunal shall be final and binding upon the disputing parties. This award shall be executed in accordance with the applicable laws and regulations, as well as relevant international law including the ICSID Convention and the New York Convention, concerning the execution of award in force in the country where such execution is sought.
20. Subject to paragraph 2 of Article 9.1, this Article shall apply to disputes regarding taxation measures to the extent covered by Article 9.6 through 9.8 or 9.10.
21. Notices and other documents relating to arbitration under this Article shall be served on a Party by delivery to:
(a) for Bangladesh, the Ministry of Commerce; and
(b) for Japan, International Legal Affairs Bureau, the Ministry of Foreign Affairs.
22. Each Party shall promptly make publicly available and notify to the other Party any change to the name of the authority referred to in paragraph 21.
Article 9.19. Sub-Committee on Investment
1. For the purpose of the effective implementation and operation of this Chapter, the Parties hereby establish a Sub-Committee on Investment (hereinafter referred to in this Article as “the Sub-Committee”).
2. The functions of the Sub-Committee shall be:
(a) reviewing and monitoring the implementation and operation of this Chapter;
(b) exchanging information on any matters related to this Chapter;
(c) discussing any issues related to this Chapter;
(d) reporting the findings and the outcome of discussions of the Sub-Committee to the Joint Committee; and
(e) carrying out other functions as may be delegated by the Joint Committee.
3. The Sub-Committee shall be composed of representatives of the Governments of the Parties.
4. The Sub-Committee may invite representatives of relevant entities other than the Governments of the Parties with the necessary expertise relevant to the issues to be discussed.
5. The Sub-Committee shall hold meetings at such times and venues or by means, as may be decided by the Parties.
6. Subject to paragraph 2 of Article 9.1, this Article shall apply to matters regarding taxation measures to the extent covered by Article 9.6 through 9.8 or 9.10.
Article 9.20. Review
Upon request of either Party, the Parties should undertake a review of this Chapter, with a view to further promoting and progressively liberalizing investment between the Parties.
Article 9.21. Relation to the Bilateral Investment Agreement
1. Notwithstanding paragraph 2 of Article 14 of the Bilateral Investment Agreement, the Bilateral Investment Agreement shall be terminated on the date of entry into force of this Agreement.
2. The Parties confirm that with respect to investments and returns acquired prior to the date of termination of the Bilateral Investment Agreement, the provisions of Articles 1 through 13 of the Bilateral Investment Agreement shall continue to be effective for a further period of 15 years from that date in accordance with paragraph 3 of Article 14 of the Bilateral Investment Agreement.
3. For the purposes of paragraph 2, nothing in this Agreement shall affect the rights and obligations of either Party under the relevant provisions of the Bilateral Investment Agreement.
Article 9.22. Duration and Termination
With respect to investments acquired prior to the date of termination of this Agreement, the provisions of this Chapter, as well as the provisions of this Agreement which are directly related to this Chapter, shall continue to be effective for a further period of 15 years from the date of termination of this Agreement.
Chapter 10. Electronic Commerce
Article 10.1. Definitions
For the purposes of this Chapter:
(a) the term “algorithm” means a defined sequence of steps, taken to solve a problem or obtain a result;
(b) the term “commercial electronic message” means an electronic message which is sent for commercial purposes to an electronic address of a person through telecommunication services, comprising at least electronic mail and, to the extent stipulated under domestic laws and regulations, other types of messages;
Note: For greater certainty, the “electronic address of a person” does not include IP addresses.
(c) the term “computing facilities” means computer servers and storage devices for processing or storing information for commercial use;
(d) the term “covered enterprise” means, with respect to a Party, an enterprise in its Area, owned or controlled, directly or indirectly, by an investor of the other Party, in existence as of the date of entry into force of this Agreement, or established, acquired or expanded thereafter;
(e) the term “covered person” means:
(i) covered enterprise; or
(ii) person of the other Party;
(f) the term “electronic authentication” means the process or act of verifying the identity of a party to an electronic communication or transaction, or ensuring the integrity of an electronic communication;
(g) the term “electronic invoicing” means the processing and exchange of an invoice between a seller and a buyer using a structured digital format;
(h) the term “electronic invoicing framework” means a system that facilitates electronic invoicing;
(i) the term “electronic signature” means data in electronic form that is in, affixed to or logically associated with an electronic data message and that may be used to identify the signatory in relation to the data message and indicate the signatory’s approval of the information contained in the data message;
(j) the term “electronic transmission” or “transmitted electronically” means a transmission made using any electromagnetic means, including by photonic means;
(k) the term “government data” means data held by the central government, disclosure of which is not restricted under the Party’s law and which that Party makes digitally available for public access and use;
(l) the term “metadata” means structural or descriptive information about data, such as content, format, source, rights, accuracy, provenance, frequency, periodicity, granularity, publisher or responsible party, contact information, method of collection or context;
(m) the term “MSMEs” means micro, small and medium-sized enterprises; and
(n) the term “unsolicited commercial electronic message” means a commercial electronic message that is sent without the consent of the recipient or despite the explicit rejection of the recipient.
Article 10.2. Principles and Objectives
1. The Parties recognize the economic growth and opportunities provided by electronic commerce, the importance of frameworks that promote consumer confidence in electronic commerce and the importance of facilitating the development and use of electronic commerce.
2. The objectives of this Chapter are to:
(a) promote electronic commerce between the Parties;
(b) contribute to creating an environment of trust and confidence in the use of electronic commerce; and
(c) enhance cooperation between the Parties regarding development of electronic commerce.
Article 10.3. Scope
1. This Chapter shall apply to measures adopted or maintained by a Party that affect trade by electronic means.
2. This Chapter shall not apply to:
(a) government procurement; or
(b) except for Article 10.15, information held or processed by or on behalf of a Party, or measures related to such information, including measures related to its collection.
3. 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.
Article 10.4. Domestic Electronic Transaction Framework
1. Each Party shall endeavor to maintain a legal framework governing electronic transactions consistent with the principles of the UNCITRAL Model Law on Electronic Commerce 1996 or the United Nations Convention on the Use of Electronic Communications in International Contracts, done at New York on November 23, 2005.
2. Each Party shall endeavor to:
(a) avoid any unnecessary regulatory burden on electronic transactions; and
(b) facilitate input by interested persons in the development of its legal framework for electronic transactions.
Article 10.5. Domestic Regulation
Each Party shall ensure that all its measures of general application affecting electronic commerce, including measures related to its collection of information, are administered in a reasonable, objective and impartial manner.
Article 10.6. Electronic Authentication and Electronic Signatures
1. Except in circumstances otherwise provided for under its laws and regulations, a Party shall not deny the legal effect, legal validity or admissibility as evidence in legal proceedings of an electronic signature solely on the basis that the signature is in electronic form.
2. Neither Party shall adopt or maintain measures that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate electronic authentication method or electronic signature for that transaction; or
(b) prevent parties to an electronic transaction from having the opportunity to establish before judicial or administrative authorities that their transaction complies with any legal requirements with respect to electronic authentication or electronic signature.
3. Notwithstanding paragraph 2, each Party may require that, for a particular category of transactions, the method of authentication or electronic signature meets certain performance standards or is certified by an accredited authority in accordance with its laws and regulations.
4. To the extent provided for under its laws and regulations, each Party shall apply paragraphs 1 through 3 to electronic seals, electronic time stamps and electronic registered delivery services.
5. The Parties shall encourage the use of interoperable electronic authentication.
6. The Parties may work together on a voluntary basis to encourage the mutual recognition of electronic signatures.
7. For greater certainty, nothing in this Article shall prevent a Party from according greater legal effect to an electronic signature that satisfies certain requirements, such as indicating that the electronic data message has not been altered or verifying the identity of the signatory.
Note: Bangladesh shall not be obliged to apply this Article for a period of five years after the date of entry into force of this Agreement.
Article 10.7. Online Consumer Protection
1. The Parties recognize the importance of adopting and maintaining transparent and effective measures to protect consumers from fraudulent and misleading commercial activities referred to in Article 13.7 when they engage in electronic commerce.
Note: For the purposes of this Article, the term “engage in electronic commerce” includes the pre-transaction phase of electronic commerce.
2. Each Party shall adopt or maintain laws and regulations to provide protection for consumers using electronic commerce against fraudulent and misleading commercial activities that cause harm or potential harm to such consumers.
3. To protect consumers engaged in electronic commerce, each Party shall endeavor to adopt or maintain measures that aim to ensure:
(a) that suppliers of goods or services deal fairly and honestly with consumers;
(b) that suppliers of goods or services provide complete, accurate and transparent information on those goods or services including any terms and conditions of purchase; and
(c) the safety of goods and, if applicable, services during normal or reasonably foreseeable use.
4. The Parties recognize the importance of affording to consumers who are engaged in electronic commerce consumer protection at a level not less than that afforded to consumers who are engaged in other forms of commerce.
5. The Parties recognize the importance of cooperation between their respective consumer protection agencies or other relevant bodies, including the exchange of information and experience, as well as cooperation in appropriate cases of mutual concern regarding the violation of consumer rights in relation to electronic commerce in order to enhance online consumer protection, where mutually decided.
6. Each Party shall promote access to, and awareness of, consumer redress or recourse mechanisms, including for consumers transacting cross-border.
Article 10.8. Personal Information Protection
1. The Parties recognize the economic and social benefits of protecting personal information of users of electronic commerce and the contribution that this makes to enhancing consumer confidence in electronic commerce.
2. Each Party shall adopt or maintain a legal framework that provides for the protection of personal information of users of electronic commerce. In the development of its legal framework for the protection of personal information and privacy, each Party should take into account the principles and guidelines of relevant international bodies.
3. Each Party shall endeavor to adopt non-discriminatory practices in protecting users of electronic commerce from personal information protection violations occurring within its jurisdiction.
4. Each Party shall publish information on the personal information protections it provides to users of electronic commerce, including how:
(a) natural persons can pursue remedies; and
(b) business can comply with any legal requirements.
5. Recognizing that each Party may take different legal approaches to protecting personal information, each Party should encourage the development of mechanisms to promote compatibility between these different regimes. These mechanisms may include the recognition of regulatory outcomes, whether accorded autonomously or by mutual arrangement, or broader international frameworks. To this end, the Parties shall endeavor to exchange information on any such mechanisms applied in their jurisdictions and explore ways to extend these or other suitable arrangements to promote compatibility between them.
6. The Parties recognize the importance of ensuring compliance with measures to protect personal information and ensuring that any restrictions on cross-border flows of personal information are necessary and proportionate to the risks presented.
Article 10.9. Principles on Access to and Use of the Internet for Electronic Commerce
Subject to its applicable policies, laws and regulations, each Party should adopt or maintain appropriate measures to ensure that a consumer in its Area may:
(a) access and use services and applications of the consumer’s choice available on the Internet, subject to reasonable, transparent and non-discriminatory network management;
(b) connect the devices of the consumer’s choice to the Internet, provided that such devices do not harm the network; and
(c) access information on the network management practices of the consumer’s Internet access service supplier.
Note: For the purposes of this Article, the term “consumer” means any natural or juridical person using the Internet.
Article 10.10. Cross-Border Transfer of Information by Electronic Means
1. The Parties recognize that each Party may have its own regulatory requirements concerning the transfer of information by electronic means.
2. Neither Party shall prevent cross-border transfer of information by electronic means where such activity is for the conduct of the business of a covered person.
3. Nothing in this Article shall prevent a Party from adopting or maintaining:
(a) measures inconsistent with paragraph 2 that are necessary to achieve a legitimate public policy objective, provided that the measure:
(i) is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade; and
(ii) does not impose restrictions on transfers of information greater than are necessary to achieve the objective; or
(b) any measures that it considers necessary for the protection of its essential security interests. Such measures shall not be disputed by the other Party.
Article 10.11. Location of Computing Facilities
1. The Parties recognize that each Party may have its own measures regarding the use or location of computing facilities, including requirements that seek to ensure the security and confidentiality of communications.
2. Neither Party shall require a covered person to use or locate computing facilities in its Area as a condition for conducting business in its Area.
3. Nothing in this Article shall prevent a Party from adopting or maintaining:
(a) measures inconsistent with paragraph 2 that are necessary to achieve a legitimate public policy objective, provided that the measure:
(i) is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade; and
(ii) does not impose restrictions on the use or location of computing facilities greater than are necessary to achieve the objective; or
(b) any measures that it considers necessary for the protection of its essential security interests. Such measures shall not be disputed by the other Party.
Article 10.12. Unsolicited Commercial Electronic Messages
1. The Parties recognize the importance of promoting confidence and trust in electronic commerce, including through transparent and effective measures that limit unsolicited commercial electronic messages. To this end, each Party shall adopt or maintain measures that:
(a) require suppliers of unsolicited commercial electronic messages to facilitate the ability of recipients to stop receiving such messages;
(b) require the consent, as specified in its laws and regulations, of recipients to receive commercial electronic messages; or
(c) otherwise provide for the minimization of unsolicited commercial electronic messages.
2. Each Party shall endeavor to ensure that commercial electronic messages are clearly identifiable as such, clearly disclose on whose behalf they are sent, and contain the necessary information to enable recipients to request cessation of such messages free of charge and at any time.
3. Each Party shall provide access to redress or recourse against suppliers of unsolicited commercial electronic messages that do not comply with the measures adopted or maintained pursuant to paragraph 1.
4. The Parties shall endeavor to cooperate in appropriate cases of mutual concern regarding the regulation of unsolicited commercial electronic messages.
Article 10.13. Cybersecurity
The Parties recognize the importance of:
(a) building the capabilities of their respective competent authorities responsible for computer security incident responses including through the exchange of best practices; and
(b) using existing collaboration mechanisms to cooperate on matters related to cybersecurity.
Article 10.14. Source Code
1. Nothing in this Article shall preclude the inclusion or implementation of terms and conditions related to the provision of source code in commercially negotiated contracts.
2. Neither Party shall require the transfer of or access to source code of software owned by a person of the other Party, or the transfer of or access to an algorithm expressed in that source code, as a condition for the import, distribution, sale or use of that software, or of products containing that software, in its Area.
3. This Article does not preclude a regulatory body or judicial authority of a Party from requiring a person of the other Party to preserve and make available the source code of software, or an algorithm expressed in that source code, for a specific investigation, inspection, examination, enforcement action or judicial proceeding, subject to safeguards against unauthorized disclosure.
Note: This making available shall not be construed to negatively affect the software source code’s or algorithm’s status as a trade secret, if such status is claimed by the trade secret owner.
Article 10.15. Open Government Data
1. This Article applies to measures by a Party with respect to government data.