Each Party shall refrain from granting or maintaining harmful fisheries subsidies. For this purpose, the Parties shall cooperate on:
(a) fulfilling the United Nations Sustainable Development Goals Target 14.6;
(b) implementing the WTO Agreement on Fisheries Subsidies, done at Geneva on 17 June 2022, that, among other things, prohibits subsidies that contribute to illegal, unreported and unregulated fishing (hereinafter referred to as "IUU fishing"); and
(c) pursuing, in the framework of the WTO, negotiations for the adoption of comprehensive disciplines regarding the prohibition of certain forms of fisheries subsidies that contribute to overcapacity and overfishing.
Article 16.5. Transparency
1. With respect to any subsidy granted or maintained within its territory, each Party shall make transparent, within one year after the date of entry into force of this Agreement and every two years thereafter, the following information:
(a) the legal basis and purpose of the subsidy;
(b) the form of the subsidy;
(c) the amount of the subsidy or the amount budgeted for the subsidy; and
(d) if possible, the name of the recipient of the subsidy.
2. Each Party shall meet the transparency requirements set out in paragraph 1 through:
(a) notification pursuant to Article 25 of the SCM Agreement;
(b) notification pursuant to Article 18 of the Agreement on Agriculture; or
(c) publication by the Party, or on its behalf, on a publicly accessible website.
3. Notwithstanding the transparency requirements set out in paragraph 1, a Party (hereinafter referred to as "requesting Party") may request additional information from the other Party (hereinafter referred to as "responding Party") about a subsidy granted by the responding Party, including:
(a) the legal basis and policy objective or purpose of the subsidy;
(b) the total amount or the annual budgeted amount for the subsidy;
(c) if possible, the name of the recipient of the subsidy;
(d) the dates and the duration of the subsidy and any other time limits attached to it;
(e) the eligibility requirements for the subsidy;
(f) any measures taken to limit the potential distortive effect on competition, trade or the environment; and
(g) any other information permitting an assessment of the negative effects of the subsidy.
4. The responding Party shall provide the information requested pursuant to paragraph 3 to the requesting Party in writing no later than 60 days after the date of delivery of the request. If the responding party does not provide, wholly or partially, the information requested by the requesting Party, the responding Party shall explain the reasons for not providing such information in its written response as required by this paragraph.
Article 16.6. Consultations
1. If, at any time after making a request for additional information pursuant to Article 16.5(3) (Transparency), the requesting Party considers that a subsidy granted by the responding Party is negatively affecting, or is likely to negatively affect, its interests, it may express its concern in writing to the responding Party and request consultations on the matter. Consultations between the Parties to discuss the concerns raised shall be held within 60 days after the date of delivery of the request.
2. If, after the consultations referred to in paragraph 1, the requesting Party considers that the subsidy in question is negatively affecting, or is likely to negatively affect, its interests, in a disproportionate manner:
(a) in the case of subsidies granted to an enterprise supplying goods or services, the responding Party shall endeavour to eliminate or minimise any negative effects of the subsidy on the interests of the requesting Party; or
(b) in the case of subsidies granted in relation to goods covered by Annex 1 to the Agreement on Agriculture, taking into account the relevant provisions of that Agreement, the responding Party shall accord sympathetic consideration to the concerns of the requesting Party with due respect to Article 16.3 (Relation to the WTO Agreement).
3. For the purposes of point (a) of paragraph 2, the Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter.
Article 16.7. Prohibited Subsidies
1. The following subsidies that have or could have a significant negative effect on trade between the Parties shall be prohibited:
(a) subsidies whereby a government guarantees debts or liabilities of certain enterprises without any limitation as to the amount of those debts and liabilities or the duration of such guarantee; and
(b) subsidies to an insolvent enterprise, or enterprise in respect of which insolvency is imminent in the short to medium term without the subsidy, if:
(i) there is no credible restructuring plan, based on realistic assumptions, aimed at ensuring the return to long-term viability of the enterprise within a reasonable time period; or
(ii) the enterprise, other than an SME, does not contribute to the costs of restructuring.
2. Point (b) of paragraph 1 does not apply to subsidies provided to enterprises as temporary liquidity support in the form of loan guarantees or loans during the period which is necessary to prepare a restructuring plan. Such temporary liquidity support shall be limited to the amount needed to merely keep the enterprise in business. For the purposes of this paragraph, the formulation "temporary liquidity support in the form of loan guarantees or loans" includes solvency support.
3. Subsidies granted to ensure the orderly market exit of an enterprise are not prohibited.
4. This Article does not apply to subsidies the cumulative amounts or budgets of which are less than SDR 160 000 per enterprise over a period of three consecutive years.
Article 16.8. Use of Subsidies
Each Party shall ensure that enterprises use subsidies only for the policy objective for which those subsidies were granted.
Article 16.9. Non-application of Dispute Settlement
Chapter 26 (Dispute settlement) does not apply to Article 16.6 (Consultations).
Chapter 17. STATE-OWNED ENTERPRISES
Article 17.1. Scope
1. This Chapter applies to state-owned enterprises, enterprises granted special rights or privileges and designated monopolies, engaged in a commercial activity that may potentially affect trade or investment between the Parties. (1) Where such state-owned enterprises, enterprises granted special rights or privileges and designated monopolies engage both in commercial and non-commercial activities, only their commercial activities are covered by this Chapter.
2. This Chapter applies to state-owned enterprises, enterprises granted special rights or privileges and designated monopolies at all levels of government. (2)
3. This Chapter does not apply to state-owned enterprises, enterprises granted special rights or privileges and designated monopolies if in one of the three previous consecutive fiscal years the annual revenue derived from the commercial activities of a state-owned enterprise, an enterprise granted special rights or privileges or a designated monopoly was less than SDR 100 million. During the first three years after the date of entry into force of this Agreement, that threshold shall be SDR 200 million.
4. This Chapter does not apply to situations where state-owned enterprises, enterprises granted special rights or privileges or designated monopolies act as procuring entities conducting procurement for governmental purposes and not with a view to commercial resale or with a view to use in the production of a good or in the supply of a service for commercial sale (1).
5. Article 17.5 (Non-discriminatory treatment and commercial considerations) and Article 17.7 (Information exchange) do not apply to an activity performed in the exercise of governmental authority.
6. Article 17.5 (Non-discriminatory treatment and commercial considerations) does not apply with respect to the supply of financial services by a state-owned enterprise pursuant to a government mandate, if that supply of financial services:
(a) supports exports or imports, provided that those financial services are:
(i) not intended to displace commercial financing; or
(ii) offered on terms no more favourable than those that could be obtained for comparable financial services in the commercial market; or
(b) supports private investment outside the territory of the Party, provided that those financial services are:
(i) not intended to displace commercial financing; or
(ii) offered on terms no more favourable than those that could be obtained for comparable financial services in the commercial market; or
(c) is offered on terms consistent with the Arrangement defined in point (b) of Article 17.2 (Definitions), provided that it falls within the scope of that Arrangement.
7. Article 17.5 (Non-discriminatory treatment and commercial considerations) does not apply to the services in sectors that are outside the scope of Chapter 10 (Trade in services and investment) in accordance with Article 10.2(3) (Scope).
8. Article 17.5 (Non-discriminatory treatment and commercial considerations) does not apply to the extent that a state-owned enterprise, an enterprise granted special rights or privileges or a designated monopoly of a Party makes a purchase or sale of a good or a service pursuant to:
(a) any existing non-conforming measure in accordance with Article 10.10 (Non-conforming measures) that the Party maintains, continues, renews or amends as set out in its respective Schedule in Annex 10-A (Existing measures); or
(b) any non-conforming measure that the Party adopts or maintains with respect to sectors, sub-sectors, or activities in accordance with Article 10.10 (Non-conforming measures) as set out in its respective Schedule in Annex 10-B (Future measures).
Article 17.2. Definitions
For the purposes of this Chapter, the following definitions apply:
(a) "activity performed in the exercise of governmental authority" means any activity which is performed, including any service that is supplied, neither on a commercial basis nor in competition with one or more economic operators;
(b) "Arrangement" means the Arrangement on Officially Supported Export Credits, developed within the framework of the OECD or a successor undertaking, whether developed within or outside of the OECD framework that has been adopted by at least 12 original WTO Members that were Participants to the Arrangement as of 1 January 1979;
(c) "commercial activity" means an activity which an enterprise undertakes, the end result of which is the production of a good or the supply of a service to be sold in the relevant market in quantities and at prices determined by that enterprise, and which is undertaken with an orientation towards profit-making (1);
(d) "commercial considerations" means price, quality, availability, marketability, transportation and other terms and conditions of purchase or sale, or other factors that would normally be taken into account in the commercial decisions of a privately-owned enterprise operating according to market economy principles in the relevant business or industry;
(e) "designate a monopoly" means to establish or authorise a monopoly, or to expand the scope of a monopoly to cover an additional good or service;
(f) "designated monopoly" means an entity, including a consortium or a government agency, that in a relevant market in the territory of a Party is designated as the sole supplier or purchaser of a good or service, but it does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant;
(g) "enterprise granted special rights or privileges" means an enterprise, public or private, to which a Party has granted, in law or in fact, special rights or privileges (1); special rights or privileges are granted by a Party when it designates or limits to two or more the number of enterprises authorised to provide a good or a service, other than according to objective, proportional and non-discriminatory criteria, substantially affecting the ability of any other enterprise to supply the same good or service in the same geographical area under substantially equivalent conditions;
(h) "state-owned enterprise" means an enterprise in which a Party:
(i) directly owns more than 50 % of the share capital;
(ii) controls the exercise of more than 50 % of the voting rights;
(iii) holds the power to appoint a majority of the members of the board of directors or any other equivalent management body;
(iv) holds the power to control the decisions of the enterprise through any other ownership interest, including minority ownership; or
(v) has the power to direct the actions of the enterprise or otherwise exercise an equivalent level of control in accordance with the law of that Party.
Article 17.3. Relation to the WTO Agreement
Article XVII of GATT 1994, the Understanding on the Interpretation of Article XVII of the General Agreement on Tariffs and Trade 1994, Article VIII of GATS, and paragraphs 18 to 21 of the WTO Ministerial Decision of 19 December 2015 on Export Competition (WT/MIN(15)/45 – WT/L/980) are incorporated into and made part of this Agreement, mutatis mutandis. (1)
Article 17.4. General Provisions
1. Without prejudice to the rights and obligations of each Party under this Chapter, nothing in this Chapter prevents a Party from establishing or maintaining state-owned enterprises, granting special rights or privileges to enterprises or designating or maintaining monopolies.
2. A Party shall not require or encourage a state-owned enterprise, an enterprise granted special rights or privileges or a designated monopoly to act in a manner inconsistent with this Chapter.
Article 17.5. Non-discriminatory Treatment and Commercial Considerations
1. Each Party shall ensure that each of its state-owned enterprises, enterprises granted special rights or privileges or designated monopolies, when engaging in commercial activities:
(a) acts in accordance with commercial considerations in its purchase or sale of a good or a service, except to fulfil any terms of its public service mandate that are not inconsistent with point (b) or (c);
(b) in its purchase of a good or a service:
(i) accords to a good or a service supplied by an enterprise of the other Party treatment no less favourable than that which it accords to a like good or a like service supplied by enterprises of the Party; and
(ii) accords to a good or service supplied by a covered enterprise defined in point (d) of Article 10.3 (Definitions) treatment no less favourable than that which it accords to a like good or a like service supplied by enterprises of that Party's own investors in the relevant market in the Party; and
(c) in its sale of a good or a service:
(i) accords to an enterprise of the other Party treatment no less favourable than that which it accords to enterprises of the Party; and
(ii) accords to a covered enterprise as defined in point (d) of Article 10.3 (Definitions) treatment no less favourable than that which it accords to enterprises of that Party's own investors in the relevant market in the Party.
2. Provided that such different terms or conditions or refusal are made in accordance with commercial considerations, points (b) and (c) of paragraph 1 do not preclude a state-owned enterprise, an enterprise granted special rights or privileges or a designated monopoly from:
(a) purchasing or supplying goods or services on different terms or conditions, including those relating to price; or
(b) refusing to purchase or supply goods or services.
Article 17.6. Regulatory Framework
1. Each Party shall respect and make best use of relevant international standards including the OECD Guidelines on Corporate Governance of State-Owned Enterprises.
2. Each Party shall ensure that any regulatory body or any other body exercising a regulatory function that the Party establishes or maintains:
(a) is independent from, and not accountable to, any of the enterprises regulated by such body; and
(b) acts impartially (1) in like circumstances with respect to all enterprises regulated by such body, including state-owned enterprises, enterprises granted special rights or privileges and designated monopolies. (2)
3. Each Party shall ensure the enforcement of its law on state-owned enterprises, enterprises granted special rights or privileges and designated monopolies in a consistent and non-discriminatory manner.
Article 17.7. Information Exchange
1. A Party which has a reason to believe that its interests under this Chapter are being adversely affected by the commercial activities of a state-owned enterprise, an enterprise granted special rights or privileges or a designated monopoly (hereinafter referred to as "the entity" in this Article) of the other Party may request the other Party in writing to provide information on the commercial activities of the entity related to the carrying out of obligations under this Chapter in accordance with paragraph 2.
2. The Party responding to a request shall provide the following information to the requesting Party, provided that the request includes an explanation of how the activities of the entity may be affecting the interests of the requesting Party under this Chapter and that the request indicates which of the following information shall be provided:
(a) the ownership and the voting structure of the entity, indicating the percentage of shares that the responding Party, its state-owned enterprises, enterprises granted special rights or privileges or designated monopolies cumulatively own, and the percentage of voting rights that they cumulatively hold, in the entity;
(b) a description of any special shares or special voting or other rights that the responding Party, its state-owned enterprises, enterprises granted special rights or privileges or designated monopolies hold, where such rights are different from those attached to the general common shares of the entity;
(c) a description of the organisational structure of the entity and its composition of the board of directors or of any other equivalent management body;
(d) a description of which government departments or public bodies regulate or monitor the entity, a description of the reporting requirements imposed on it by those government departments or public bodies, and the rights and practices of those government departments or public bodies with respect to the appointment, dismissal or remuneration of senior executives and members of the board of directors or any other equivalent management body of the entity;
(e) annual revenue and total assets of the entity over the most recent three-year period for which information is available;
(f) any exemptions, immunities and related measures from which the entity benefits under the law of the responding Party;
(g) in respect of entities covered by the New Zealand Local Government Act 2002 or any successor legislation, any information that such entities are obliged to provide under that Act or any successor legislation; and
(h) any additional information regarding the entity that is publicly available, including annual financial reports and third-party audits.
3. Without prejudice to Article 25.7 (Disclosure of information), paragraphs 1 and 2 of this Article shall not require a Party to disclose confidential information the disclosure of which would be inconsistent with its law.
4. If the requested information is not available to the responding Party, the responding Party shall provide the reasons for this in writing to the requesting Party.
Chapter 18. INTELLECTUAL PROPERTY
Section A. GENERAL PROVISIONS
Article 18.1. Objectives
The objectives of this Chapter are to:
(a) promote the creation, production, dissemination and commercialisation of innovative and creative goods and services in and between the Parties, contributing to a more sustainable and inclusive economy for the Parties;
(b) promote, support and govern trade between the Parties as well as reduce distortions and impediments to such trade; and
(c) ensure an adequate and effective level of protection and enforcement of intellectual property rights.
Article 18.2. Scope
1. This Chapter complements and further specifies the rights and obligations of each Party under the TRIPS Agreement and other international agreements in the field of intellectual property to which they are parties.
2. Each Party shall give effect to this Chapter. Each Party shall be free to determine the appropriate method of implementing this Chapter within its own legal system and practice.
3. This Chapter does not preclude a Party from providing more extensive protection for, or enforcement of, intellectual property rights than is required by this Chapter, provided that such protection and enforcement does not contravene this Chapter.
Article 18.3. Definitions
For the purposes of this Chapter, the following definitions apply:
(a) "intellectual property rights" means all categories of intellectual property that are covered by Articles 18.8 (Authors) to 18.45 (Protection of plant variety rights) of this Chapter and Sections 1 to 7 of Part II of the TRIPS Agreement. The protection of intellectual property includes protection against unfair competition as referred to in Article 10bis of the Paris Convention;
(b) "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;
(c) "Paris Convention" means the Paris Convention for the Protection of Industrial Property of 20 March 1883, as revised at Stockholm on 14 July 1967;
(d) "WIPO" means the World Intellectual Property Organization; and
(e) "WPPT" means the WIPO Performances and Phonograms Treaty done at Geneva on 20 December 1996.
Article 18.4. International Agreements
1. Each Party shall comply with its commitments under the following international agreements:
(a) TRIPS Agreement;
(b) WIPO Copyright Treaty adopted in Geneva on 20 December 1996;
(c) WPPT;
(d) Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled, done in Marrakesh on 27 June 2013; and
(e) Trademark Law Treaty, done at Geneva on 27 October 1994.
2. Each Party shall make all reasonable efforts to ratify or accede to the following international agreements:
(a) Beijing Treaty on Audiovisual Performances, done at Beijing on 24 June 2012;
(b) Singapore Treaty on the Law of Trademarks, done at Singapore on 27 March 2006; and
(c) The Geneva Act (1999) of the Hague Agreement Concerning the International Registration of Industrial Designs, adopted at Geneva on 2 July 1999.
3. Each Party shall ensure that the procedures provided under the following international agreements are available in its territory: