2. A Party may grant authorisations without complying with the conditions and procedures set out in Article 10.34 (Publication and information available) and point (b) of paragraph 1 of this Article in any of the following cases related to hydrocarbons: (a) the area has been subject to a previous procedure complying with Article 10.34 (Publication and information available) and point (b) of paragraph 1 of this Article which has not resulted in an authorisation being granted;
(b) the area is available on a permanent basis for exploration or production; or
(c) the authorisation granted has been relinquished before its date of expiry.
3. A Party may require an entity which has been granted an authorisation to pay a financial contribution or a contribution in kind. (1) The financial contribution or a contribution in kind shall be fixed in a manner that does not interfere with the management and decision-making process of such entity.
4. Each Party shall ensure that the applicant is provided with the reasons for the rejection of its application to enable that applicant to have recourse to procedures for appeal or review. The procedures for appeal or review shall be made public in advance.
Article 13.8. Assessment of Environmental Impact
1. Each Party shall ensure that its laws and regulations require an environmental impact assessment for activities related to production of energy goods or raw materials, where such activities may have a significant impact on the environment.
2. With respect to the environmental impact assessment referred to in paragraph 1, each Party shall, as required by its laws and regulations:
(a) ensure that all interested persons, including non-governmental organisations, have an early and effective opportunity, and an appropriate time period, to participate in the environmental impact assessment as well as an appropriate time period to provide comments on the environmental impact assessment report;
(b) take into account the findings of the environmental impact assessment relating to the effects on the environment prior to granting the authorisation;
(c) make publicly available the outcome findings of the environmental impact assessment; and
(d) identify and assess as appropriate the significant effects of a project on:
(i) population and human health;
(ii) biodiversity;
(ii) land, soil, water, air, and climate; and
(iv) cultural heritage and landscape, including the expected effects deriving from the vulnerability of the project to risks of major accidents or disasters that are relevant to the project concerned.
Article 13.9. Offshore Risk and Safety
1. Each Party shall ensure that regulatory functions relating to safety and environmental protection of offshore oil and gas operations are conducted independently from regulatory functions relating to economic development and licensing of offshore oil and gas operations, such as by maintaining separate legal entities.
2. Each Party shall, when applicable, establish the conditions necessary for safe offshore exploration and production of oil and gas in its territory in order to protect the marine environment and coastal communities against pollution. Such conditions shall be based on high standards of safety and environmental protection for offshore oil and gas operations.
3. The Parties shall cooperate, as appropriate, to internationally promote high standards of safety and environmental protection for offshore oil and gas operations by sharing information and increasing transparency on safety and environmental performance.
Article 13.10. Access to Energy Infrastructure for Producers of Renewable Electricity
1. Without prejudice to Article 13.7 (Authorisation for exploration and production of energy goods and raw materials), each Party shall ensure that producers of renewable electricity in its territory are granted access to the electricity transmission and distribution infrastructure in its territory on non-discriminatory, reasonable and cost-reflective terms within a reasonable period of time after the request for access has been submitted and under conditions that allow reliable use of such infrastructure.
2. Each Party shall ensure that owners or operators of electricity transmission and distribution infrastructure in its territory publish the terms and conditions that are referred to in paragraph 1 and take appropriate measures to minimise the curtailment of renewable electricity production.
3. Each Party shall ensure balancing markets are in place where producers of renewable energy may procure goods and services under reasonable and non-discriminatory terms.
4. This Article is without prejudice to the right of each Party to adopt or maintain in its laws and regulations derogations from the right to access to its electricity transmission and distribution infrastructure based on objective and non-discriminatory criteria, provided such derogations are necessary to fulfil a legitimate policy objective, such as the need to maintain the stability of the electricity system.
Article 13.11. Regulatory Body
Each Party shall maintain or establish an independent regulatory body or any other independent body that is:
(a) legally distinct and functionally separate from, and not accountable to:
(i) other authorities; or
(ii) operators or entities providing, or having access to, the electricity transmission and distribution infrastructure; and
(b) entrusted to resolve disputes regarding appropriate terms, conditions and tariffs for access to and use of electricity transmission and distribution infrastructure within a reasonable period of time.
Article 13.12. Cooperation on Standards, Technical Regulations, and Conformity Assessment Procedures
1. In accordance with Articles 9.5 (International standards) and 9.6 (Standards), the Parties shall promote cooperation between the regulators or standardisation bodies located within their respective territories in the area of energy efficiency and sustainable renewable energy, with a view to contributing to sustainable energy and climate policy.
2. For the purposes of paragraph 1, the Parties shall endeavour to identify relevant initiatives of mutual interest concerning standards, technical regulations, and conformity assessment procedures related to energy efficiency and sustainable renewable energy.
Article 13.13. Research, Development and Innovation
The Parties shall promote research, development and innovation in the areas of energy efficiency, renewable energy and raw materials, and cooperate as appropriate, including to:
(a) promote the dissemination of information and best practices on environmentally sound and economically efficient policies regarding energy goods and raw materials, and cost-effective practices and technologies in the areas of energy efficiency, renewable energy and raw materials, in a manner that is consistent with the adequate and effective protection of intellectual property rights; and
(b) promote research, development and application of energy-efficient and environmentally sound technologies, practices and processes in the areas of energy efficiency, renewable energy and raw materials which would minimise harmful environmental impacts in the entire energy goods and raw materials chains.
Article 13.14. Cooperation on Energy Goods and Raw Materials
The Parties shall cooperate, as appropriate, in the area of energy goods and raw materials with a view to, inter alia:
(a) reducing or eliminating trade and investment distorting measures in third countries affecting energy goods and raw materials;
(b) coordinating their positions in international fora where trade and investment issues related to energy goods and raw materials are discussed and fostering international programmes in the areas of energy efficiency, renewable energy and raw materials;
(c) fostering exchange of market data in the area of:
(i) energy goods including information on the organisation of energy markets, promotion of new energy technologies and energy efficiency; and
(ii) raw materials;
(d) promoting corporate social responsibility in accordance with international standards, such as the OECD Guidelines for Multinational Enterprises and the OECD Due Diligence Guidance for Responsible Business Conduct;
(e) promoting the values of responsible sourcing and mining globally as well as maximising the contribution of their raw materials sectors and associated industrial value chains to the fulfilment of the United Nations Sustainable Development Goals;
(f) promoting research, development, innovation and training in relevant fields of common interest in the area of energy goods and raw materials;
(g) fostering exchange of information and best practices on domestic policy developments;
(h) promoting the efficient use of resources (i.e. improving production processes as well as durability, reparability, design for disassembly, ease of reuse and recycling of goods); and promoting internationally high standards of safety and environmental protection for offshore oil, gas and mining operations, by sharing information and increasing transparency on safety and environmental performance.
Chapter 14. PUBLIC PROCUREMENT
Article 14.1. Incorporation of Certain Provisions of the GPA
1. The Parties affirm their rights and obligations under the GPA.
2. The following provisions of the GPA are incorporated into and made part of this Agreement, mutatis mutandis, to apply to procurement covered by Annex 14 (Public procurement market access commitments) to this Agreement:
(a) Articles Ito IV, Articles VI to XV, Articles XVI(1) to XVI(3), and Articles XVII and XVII; and
(b) Appendices II to IV as they relate to each Party.
3. Notwithstanding Article 1.5(5) (Relation to other international agreements), if any of the provisions of the GPA referred to in point (a) of paragraph 2 are amended, those amendments shall not be automatically incorporated into this Chapter, but the Parties shall consult with a view to amending this Chapter, as appropriate.
4. For greater certainty, references to the term "covered procurement" in the provisions incorporated into and made part of this Agreement, mutatis mutandis, in accordance with paragraph 2 shall be interpreted as references to procurement covered by Annex 14 (Public procurement market access commitments).
Article 14.2. Additional Disciplines
1. The provisions of this Article apply in addition to the provisions referred to in Article 14.1 (Incorporation of certain provisions of the GPA).
2. As regards the use of electronic means in conducting procurement and publication of notices, all notices relating to covered procurement within the meaning of Article 14.1(4) (Incorporation of certain provisions of the GPA), including notices of intended procurement, summary notices, notices of planned procurement and contract award notices:
(a) shall be directly accessible by electronic means, free of charge, through a single point of access on the internet; and
(b) may also be published in an appropriate paper medium.
Tender documentation shall be made available through electronic means and the Parties shall use electronic means in the submission of tenders to the widest extent practicable.
3. As regards registration systems and qualification procedures, pursuant to Article IX(1) of the GPA, where a Party, including its procuring entities, or any other competent authority maintains a supplier registration system, it shall ensure that information on the supplier registration system is accessible through electronic means and that interested suppliers may request registration at any time. If a supplier meets the conditions for registration, it shall be registered within a reasonable period of time. If a supplier does not meet the conditions for registration, it shall be informed and provided with written reasons within a reasonable period of time.
4. As regards selective tendering, pursuant to Article [X(5) of the GPA, if a procuring entity uses a selective tendering procedure, it shall not limit the number of suppliers invited to submit a tender with the intention of avoiding effective competition.
5. As regards environmental, social and labour considerations, a Party may:
(a) allow procuring entities to take into account environmental, social and labour considerations related to the object of the procurement, provided that such considerations are:
(i) non-discriminatory; and
(ii) indicated in the notice of intended procurement or in the tender documentation;
(b) take appropriate measures to ensure compliance with its own and with international environmental, social and labour laws, regulations, obligations and standards provided that such laws, regulations, obligations and standards are not discriminatory.
6. As regards the conditions for participation, while a procuring entity of a Party may, in establishing the conditions for participation, require relevant prior experience where essential to meet the requirements of the procurement in accordance with point (b) of Article VIN(2) of the GPA, that procuring entity of a Party shall not require prior experience in the territory of the Party to be a condition of the procurement.
Article 14.3. Exchange of Statistics
Every two years, each Party shall make available to the other Party bilateral statistics on public procurement, subject to their availability in the official online procurement systems of each Party.
Article 14.4. Modifications and Rectifications to Coverage
1. A Party may modify its commitments in its respective Section of Annex 14 (Public procurement market access commitments) in accordance with paragraphs 3 to 5 and paragraph 9 of this Article. A Party may rectify its commitments in its respective Section of Annex 14 (Public procurement market access commitments) in accordance with paragraphs 6 to 9 of this Article.
2. Ifa modification or a rectification of a Party's Annexes to Appendix I to the GPA becomes effective pursuant to Article XIX of the GPA, it shall automatically become effective and applicable for the purposes of this Agreement, mutatis mutandis.
3. A Party intending to modify its commitments in its respective Section of Annex 14 (Public procurement market access commitments) shall:
(a) notify the other Party in writing; and
(b) include in the notification a proposal for appropriate compensatory adjustments to the other Party in order to maintain a level of coverage comparable to that existing prior to the modification.
4. Notwithstanding point (b) of paragraph 3, a Party is not required to provide compensatory adjustments to the other Party if the modification covers an entity over which the Party has effectively eliminated its control or influence.
5. The other Party may object to a modification as referred to in paragraph 3, if it considers that:
(a) a compensatory adjustment proposed under point (b) of paragraph 3 is not adequate to maintain a comparable level of mutually agreed coverage; or
(b) the modification does not cover an entity over which the Party has effectively eliminated its control or influence as provided for in paragraph 4. The other Party shall object in writing within 45 days after the date of delivery of the notification as referred to in point (a) of paragraph 3 or be deemed to have accepted the compensatory adjustment or modification, including for the purposes of Chapter 26 (Dispute settlement).
6. The following changes to a Party's respective Section of Annex 14 (Public procurement market access commitments) shall be considered to be a rectification of a purely formal nature, provided that those changes do not affect the mutually agreed coverage provided for in this Chapter:
(a) a change in the name of an entity;
(b) a merger of two or more entities listed in that Section; and
(c) the separation of an entity listed in that Section into two or more entities that are added to the entities listed in the same Section.
7. In the case of proposed rectifications to a Party's respective Section of Annex 14 (Public procurement market access commitments), the Party shall notify the other Party every two years, in line with the cycle of notifications provided for under the GPA.
8. A Party may notify the other Party of an objection to a proposed rectification within 45 days after the date of delivery of the notification. If a Party submits an objection, it shall set out the reasons why it believes the proposed rectification is not a rectification of a purely formal nature referred to in paragraph 6, and describe the effect of the proposed rectification on the mutually agreed coverage provided for in this Agreement. If no objection is submitted in writing within 45 days after the date of delivery of the notification, the Party shall be deemed to have agreed to the proposed rectification.
9. If the other Party objects to the proposed modification or rectification, the Parties shall seek to resolve the issue through consultations. If no agreement is found within 60 days after the date of delivery of the objection, the Party seeking to modify or rectify its respective Section of Annex 14 (Public procurement market access commitments) may refer the matter to dispute settlement in accordance with Chapter 26 (Dispute settlement). The intended modification or rectification of the relevant Section of Annex 14 (Public procurement market access commitments) shall take effect only when both Parties have agreed or on the basis of a final decision of a panel established under Article 26.5 (Establishment of a panel).
Article 14.5. Further Negotiations
The Parties shall enter into negotiations on market access with a view to making improvements to the coverage provided for under Sub-Section 2 (Sub-central government entities) and Sub-Section 3 (Other entities) of Section B (Schedule of New Zealand) of Annex 14 (Public procurement market access commitments) as soon as possible following New Zealand local authorities, state services or state sector entities being either:
(a) covered by New Zealand in another international trade agreement; or
(b) required to follow the New Zealand Government Procurement Rules (1) after the date of entry into force of this Agreement. (2)
Chapter 15. COMPETITION POLICY
Article 15.1. Competition Principles
The Parties recognise the importance of free and undistorted competition in their trade and investment relations. The Parties acknowledge that anticompetitive business practices and state interventions have the potential to distort the proper functioning of markets and undermine the benefits of liberalisation of trade and investment.
Article 15.2. Competitive Neutrality
This Chapter applies to all enterprises, public or private.
Article 15.3. Economic Activity
This Chapter applies to enterprises only to the extent that the enterprises perform an economic activity. For the purposes of this Chapter, the term "economic activity" pertains to the offering of goods or services on a market.
Article 15.4. Legislative Framework
1. Each Party shall adopt or maintain competition law that:
(a) applies to all enterprises;
(b) applies in all sectors of the economy; (1) and
(c) addresses, in an effective manner, all of the following practices:
(i) horizontal and vertical agreements between enterprises, decisions by associations of enterprises, and informal cooperation between enterprises that substitutes for the risks of competition, which have as their object or effect the prevention, restriction or distortion of competition;
(ii) abuses by one or more enterprises of a dominant position; and
(iii) concentrations between enterprises that would significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position.
2. The Parties shall ensure that enterprises entrusted with the operation of tasks of public interest shall be subject to the rules of this Chapter, in so far as the application of such rules does not, in law or in fact, obstruct the performance of particular tasks of public interest that are assigned to such enterprises. Assigned tasks of public interest shall be transparent and any limitation to or deviation from the application of the rules of this Chapter shall not go beyond what is strictly necessary to achieve the assigned tasks.
Article 15.5. Implementation
1. Each Party shall maintain an operationally independent authority that is responsible for, and appropriately equipped with the powers and resources necessary to ensure, the full application, and the effective enforcement, of the competition law referred to in Article 15.4(1) (Legislative framework).
2. Each Party shall apply its competition law in a transparent manner, respecting the principles of procedural fairness, including the rights of defence of the enterprises concerned, in particular the right to be heard and the right to judicial review.
3. Each Party shall make publicly available its competition laws and regulations, and any guidelines used in relation to their enforcement with the exception of internal operating procedures.
4. Each Party shall ensure that its competition laws and regulations are applied and enforced in a manner that does not discriminate on the basis of nationality.
5. Each Party shall ensure that, before a sanction or remedy is imposed in an enforcement proceeding, the respondent is afforded the opportunity to be heard and provide evidence in its defence. In particular, each Party shall ensure that the respondent has a reasonable opportunity to review and contest the evidence on which the imposition of the sanction or the remedy is based.
6. Subject to any redactions necessary to safeguard confidential information, each Party shall ensure that the grounds for any sanction imposed or remedy applied for violation of its competition law are made available to the defendant in a proceeding enforcing its competition laws or regulations.
7. Each Party shall ensure that the addressees of a decision imposing a sanction or a remedy for violation of its competition law are given the opportunity to seek judicial review of such a decision.
Article 15.6. Private Right of Action
1. For the purposes of this Article, the term "private right of action" means the right of a person to seek redress, including injunctive, monetary or other remedies, through a court or other independent tribunal for harm to that person's business or property caused by a violation of a Party's competition law, either independently or following a finding of violation by the Party's competition authority or authorities.
2. Recognising that a private right of action is an important supplement to the public enforcement of a Party's competition law, each Party shall adopt or maintain laws or other measures that provide independent private right of action.
Article 15.7. Cooperation
1. The Parties acknowledge that it is in their common interest to promote cooperation with regard to competition policy and enforcement of competition law.
2. To facilitate the cooperation referred to in paragraph 1, the competition authorities of the Parties may exchange information, subject to the confidentiality rules in the law of each Party.
3. The competition authorities of the Parties shall endeavour to coordinate, where possible and appropriate, their enforcement activities concerning the same or related conduct or cases.
Article 15.8. Non-application of Dispute Settlement
Chapter 26 (Dispute settlement) does not apply to this Chapter.
Chapter 16. SUBSIDIES
Article 16.1. Principles
Subsidies may be granted by a Party when subsidies are necessary to achieve a public policy objective. The Parties acknowledge, however, that certain subsidies have the potential to distort the proper functioning of markets, undermine the benefits of trade liberalisation and harm the environment. In principle, subsidies should not be granted by a Party when they negatively affect, or are likely to negatively affect, competition or trade or when they significantly harm the environment.
Article 16.2. Definitions and Scope
1. For the purposes of this Chapter, the term "subsidy" means:
(a) a measure that fulfils the conditions set out in Article 1.1 of the SCM Agreement, irrespective of whether the subsidy is granted to an enterprise, supplying goods or services; (1) and
(b) a subsidy as defined in point (a) of this paragraph that is specific within the meaning of Article 2 of the SCM Agreement. Any subsidy falling under Article 16.7 (Prohibited subsidies) shall be deemed to be specific within the meaning of Article 2 of that Agreement.
2. This Chapter applies to subsidies granted to enterprises to the extent that those enterprises perform an economic activity. This Chapter applies to all enterprises, public or private. For the purposes of this Chapter, the term "economic activity" pertains to the offering of goods or services on a market.
3. This Chapter applies to subsidies granted to enterprises entrusted with particular roles or tasks in the public interest, to the extent that the application of this Chapter does not, in law or in fact, obstruct the performance of the particular roles or tasks in the public interest entrusted to those enterprises. Such particular roles or tasks in the public interest shall be entrusted in advance in a transparent manner, and any limitation to, or deviation from, the application of this Chapter shall not go beyond what is necessary to achieve the entrusted roles or tasks in the public interest. For the purposes of this paragraph, the formulation "particular roles or tasks in the public interest" includes public service obligations.
4. Articles 16.6 (Consultations) and 16.7 (Prohibited subsidies) do not apply to subsidies granted by sub-central levels of government of each Party. In fulfilling its obligations under this Chapter, each Party shall take such reasonable measures as may be available to it to ensure the observance of this Chapter by sub-central levels of government of that Party.
5. Articles 16.6 (Consultations) and 16.7 (Prohibited subsidies) do not apply to the audio-visual sector.
6. Article 16.7 (Prohibited subsidies) does not apply to subsidies that are granted to:
(a) compensate for the damage caused by natural disasters or other non-economic exceptional occurrences, provided that such subsidies are temporary; and
(b) respond to a national or global health or economic emergency, provided that such subsidies are temporary, targeted and proportionate, having regard to the harm caused by or arising from the emergency.
Article 16.3. Relation to the WTO Agreement
Nothing in this Chapter shall affect the rights and obligations of either Party under the SCM Agreement, the Agreement on Agriculture, Article XVI of GATT 1994 or Article XV of GATS.