2. The Parties shall intensify their exchange of information on the range of mechanisms to facilitate the acceptance of conformity assessment results.
3. The Parties shall seek to ensure that conformity assessment procedures applied among them facilitate trade by ensuring that they are no more restrictive than is necessary to provide an importing Party with confidence that products conform with the applicable technical regulations, taking into account the risk that non-conformity would create.
4. Before accepting the results of a conformity assessment procedure, and to enhance confidence in the continued reliability of each other's conformity assessment results, the Parties may consult on such matters as the technical competence of the conformity assessment bodies involved, as appropriate.
5. A Party shall, on the request of another Party, explain its reasons for not accepting the results of a conformity assessment procedure performed in the territory of that other Party.
6. Each Party shall accredit, approve, license, or otherwise recognise conformity assessment bodies in the territory of another Party on terms no less favourable than those it accords to conformity assessment bodies in its territory. If a Party accredits, approves, licenses or otherwise recognises a body assessing conformity with a particular technical regulation or standard in its territory and it
refuses to accredit, approve, license, or otherwise recognise a body assessing conformity with that technical regulation or standard in the territory of another Party, it shall, on request, explain the reasons for its refusal.
7. Where a Party declines a request from another Party to enter into negotiations on facilitating recognition in its territory of the results of conformity assessment procedures conducted by bodies in the territory of either of the other Parties, it shall, on request, explain its reasons.
Article 8.10. Transparency
1. In order to enhance the opportunity for persons to provide meaningful comments, a Party publishing a notice under Article 2.9 or 5.6 of the TBT Agreement shall:
(a) include in the notice a statement describing the objective of the proposal and the rationale for the approach the Party is proposing; and
(b) transmit the proposal electronically to the other Parties through the enquiry point established under Article 10 of the TBT Agreement at the same time as it notifies WTO Members of the proposal pursuant to the TBT Agreement.
2. Each Party should allow at least 60 days from the transmission under Paragraph 1(b) for persons and the other Parties to make comments in writing on the proposal.
3. Where a Party makes a notification under Article 2.10 or 5.7 of the TBT Agreement, it shall at the same time transmit the notification to the other Parties, electronically, through the enquiry point referred to in Paragraph 1(b).
Article 8.11. Technical Cooperation and Committee on Technical Barriers to Trade
1. The Parties hereby establish the Committee on Technical Barriers to Trade (the Committee), which shall comprise officials from the contact points of the Parties.
2. The Parties shall provide each other with the name of the governmental organisation that shall be their contact point and the contact details of relevant officials on that organisation, including telephone, fax, email and other relevant details. The Parties shall notify each other promptly of any change of their contact points or any amendments to the details of the relevant officials.
3. The Gommittee shall have the responsibility for implementing and monitoring the operation of this Chapter, and in particular:
(a) identifying priority sectors for enhanced cooperation; (b) establishing work programmes in priority areas;
(c) coordinating participation in work programmes with interested persons and organisations in the territories of the Parties;
(d) monitoring the work programmes;
(e) addressing any issue that a Party may raise related to the development, adoption, application or enforcement of technical regulations and conformity assessment procedures;
(f) enhancing cooperation in the development and improvement of technical regulations and conformity assessment procedures;
(g) where appropriate, facilitating sectoral cooperation among governmental and non-governmental accreditation agencies and _ conformity assessment bodies in the Partiesâ territories;
(h) exchanging information on developments in non-governmental, regional and multilateral forums engaged in activities related to standardisation, technical regulations and conformity assessment procedures;
(i) taking any other steps the Parties consider will assist them in implementing the TBT Agreement and in facilitating trade in goods among them;
(j) reviewing this Chapter in light of any developments under the TBT Agreement, and developing recommendations for amendments to this Chapter in light of those developments; and
(k) reporting to the Commission on the implementation of this Chapter, as it considers appropriate.
4. A Party shall, on request, give favourable consideration to any sector- specific proposal another Party makes for further technical cooperation under this Chapter.
5. The Committee shall conduct meetings to promote and monitor the implementation and administration of this Chapter at least once a year, or more frequently on the request of one of the Parties, via teleconference, video- conference or any other means as mutually determined by the Parties.
6. Where a Party takes a measure to manage an immediate risk that it considers goods covered by an Annex to this Chapter may pose to health, safety or the environment, it shall notify the measure and the reasons for the imposition of the measure to the other Parties, with the time limit as specified in the implementing arrangements.
Article 8.12. Technical Consultations
1. A Party may initiate technical consultations with another Party through the respective contact points with the aim of resolving any matter arising under this Chapter.
2. Unless the Parties mutually determine otherwise, the Parties shall hold technical consultations within a reasonable period of time from the request for technical consultations by email, teleconference, video-conference, or through any other means, as mutually determined by the Parties. The Parties shall, from time to time, stipulate in writing the length of time that they consider to be reasonable.
3. If a Party considers it necessary, it may request that the Committee facilitate such technical consultations.
4. Such technical consultations are without prejudice to the rights and obligations of the Parties under Chapter 15 (Dispute Settlement.
Article 8.13. Annexes and Implementing Arrangements
1. The Parties, in accordance with Chapter 17 (Administrative and Institutional Provisions), may conclude Annexes to this Chapter setting out agreed principles and procedures relating to technical regulations and conformity assessment applicable to trade among them.
2. The Parties, in accordance with Article 8.11, may develop Implementing Arrangements setting out details for the implementation of Annexes referred to in Paragraph 1, or arrangements made in relation to any work programmes established under Article 8.11.
3. The Parties shall seek to incorporate any existing arrangements concerning technical regulations and conformity assessment procedures that are specifically applicable to trade between two or more of the Parties into Annexes and Implementing Arrangements.
Chapter 9. COMPETITION POLICY
Article 9.1. Objectives
1. The Parties recognise the strategic importance of creating and maintaining open and competitive markets that promote economic efficiency and consumer welfare.
2. To this end each Party is committed to reducing and removing impediments to trade and investment including through:
(a) application of competition statutes to all forms of commercial activity, including both private and public business activities; and
(b) application of competition statutes in a manner that does not discriminate between or among economic entities, nor between origin and destination of the production.
3. The Parties recognise that anti-competitive business conduct may frustrate the benefits arising from this Agreement. The Parties undertake to apply their respective competition laws in a manner consistent with this Chapter so as to avoid the benefits of this Agreement in terms of the liberalisation process in goods and services being diminished or cancelled out by anti-competitive business conduct.
Article 9.2. Competition Law and Enforcement
1. Each Party shall adopt or maintain competition laws that proscribe anti- competitive business conduct with the objective of promoting economic efficiency and consumer welfare.
2. With a view to preventing distortions or restrictions on competition the Parties will give particular attention to anti-competitive agreements, concerted practices or arrangements by competitors and abusive behaviour resulting from single or joint dominant positions in a market. These practices refer to goods and services and may be carried out by any enterprise irrespective of the ownership of that enterprise.
3. Competition law shall apply to all commercial activities. However, each Party may exempt specific measures or sectors from the application of their general competition law, provided that such exemptions are transparent and undertaken on the grounds of public policy or public interest. Exemptions of the Parties as at the date of entry into force of this Agreement are set out in Annex 9.A.
Those exemptions shall not have the objective of negatively affecting trade among the Parties. Should any Party be considering additions to its list of exemptions that it considers may affect trade with another Party, it will inform that Party, which may request consultations under Article 9.5. The Commission shall implement any additions to or removals from the list of exemptions through an Implementing Arrangement.
4. Each Party shall establish or maintain a competition authority responsible for the enforcement of its measures to proscribe anti-competitive business conduct. The enforcement policy of each Partyâs competition authority shall not discriminate on the basis of the nationality of the subjects of their proceedings to the extent that they carry on a business within the territory of that Party.
5. Each Party shall ensure that a person subject to the imposition of a sanction or remedy for violation of competition laws is provided with the opportunity to be heard and present evidence, and to seek review of such a sanction or remedy in a domestic court or independent tribunal.
Article 9.3. Cooperation
1. The Parties agree to cooperate and coordinate in the area of competition policy by exchanging information on the development of competition policy. The Parties also recognise the importance of cooperation and coordination between their respective competition authorities to further effective competition law enforcement in their respective jurisdictions. Accordingly, the Parties shall cooperate on issues of competition law enforcement, including notification, consultation and exchanges of information.
2. The Parties through their respective competition authorities will seek a cooperation agreement after the date of the entry into force of this Agreement. Article 9.4: Notifications
1. Each Party shall notify the other Parties of an enforcement activity regarding an anti-competitive business conduct if it:
(a) considers that the enforcement activity is liable to substantially affect another Party's important interests;
(b) relates to restrictions on competition which are liable to have a direct and substantial effect in the territory of another Party; or
(c) concerns anti-competitive acts taking place principally in the territory of another Party.
2. Notification shall take place at an early stage of the procedure, provided that this is not contrary to the Parties' competition laws and does not affect any investigation being carried out.
Article 9.4. Notifications
1. Each Party shall notify the other Parties of an enforcement activity regarding an anti-competitive business conduct if it:
(a) considers that the enforcement activity is liable to substantially affect another Party's important interests;
(b) relates to restrictions on competition which are liable to have a direct and substantial effect in the territory of another Party; or
(c) concerns anti-competitive acts taking place principally in the territory of another Party
2. Notification shall take place at an early stage of the procedure, provided that this is not contrary to the Parties’ competition laws and does not affect any investigation being carried out.
Article 9.5. Consultations and Exchange of Information
1. At the request of any Party, the Parties shall consult on any issue adversely affecting the competitive interests for trade or investment among them within the objectives of this Chapter.
2. Information or documents exchanged between the Parties in relation to any consultation conducted pursuant to the provisions of this Chapter shall be kept confidential. No Party shall, except to comply with its domestic legal requirements, release or disclose such information or documents to any person without the written consent of the Party that provided such information or documents. Where the disclosure of such information or documents is necessary to comply with the domestic legal requirements of a Party, that Party shall notify the other Parties before such disclosure is made. The Parties may agree to the public release of information that they do not consider confidential.
Article 9.6. Public Enterprises and Enterprises Entrusted with Special or Exclusive Rights, Including Designated Monopolies
1. Nothing in this Chapter prevents a Party from designating or maintaining public or private monopolies according to their respective laws.
2. With regard to public enterprises and enterprises to which special or exclusive rights have been granted, the Parties shall ensure that, following the date of entry into force of this Agreement, no measure is adopted or maintained that distorts trade in goods or services among the Parties, which is contrary to this Agreement and contrary to the Partiesâ interests, and that such enterprises shall be subject to the rules of competition insofar as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them.
Article 9.7. Dispute Settlement
1. Nothing In this Chapter Permits a Party to Challenge Any Decision Made by a Competition Authority of Another Party In Enforcing the Applicable Competition Laws and regulations.
2. No Party shall have recourse to any dispute settlement procedures under this Agreement for any issue arising from or relating to this Chapter.
Chapter 10. INTELLECTUAL PROPERTY
Article 10.1. Definitions for the Purposes of this Chapter:
TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights, which is part of the WTO Agreement;
Intellectual property refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the TRIPS Agreement namely: copyright and related rights; trade marks; geographical indications; industrial designs; patents; layout designs (topographies) of integrated circuits; protection of undisclosed information. (1)
Article 10.2. Intellectual Property Principles
1. The Parties recognise the importance of intellectual property in promoting economic and social development, particularly in the new digital economy, technological innovation and trade.
2. The Parties recognise the need to achieve a balance between the rights of right holders and the legitimate interests of users and the community with regard to protected subject matter.
3. The Parties are committed to the maintenance of intellectual property rights regimes and systems that seek to:
(a) facilitate international trade, economic and social development through the dissemination of ideas, technology and creative works;
(b) provide certainty for right-holders and users of intellectual property over the protection and enforcement of intellectual property rights; and
(c) facilitate the enforcement of intellectual property rights with the view, inter alia, to eliminate trade in goods infringing intellectual property rights.
Article 10.3. General Provisions
1. The Parties affirm their existing rights and obligations with respect to each other under the TRIPS Agreement and any other multilateral agreement relating to intellectual property to which they are party. To this end, nothing in this Chapter shall derogate from existing rights and obligations that Parties have to each other under the TRIPS Agreement or other multilateral intellectual property agreemenis.
2. Nothing in this Chapter shall prevent a Party from adopting appropriate measures to prevent the abuse of intellectual property rights by right holders or the resort to practices that unreasonably restrain trade or adversely affect the international transfer of technology, provided that such measures are consistent with this Agreement. In particular, nothing in this Chapter shall prevent a Party from adopting measures necessary to prevent anti-competitive practices that may result from the abuse of intellectual property rights.
3. Subject to each Party's international obligations the Parties affirm that they may:
(a) provide for the international exhaustion of intellectual property rights;
(b) establish that provisions in standard form non-negotiated licenses for products do not prevent consumers from exercising the limitations and exceptions recognised in domestic intellectual property laws;
(c) establish provisions to facilitate the exercise of permitted acts where technological measures have been applied; and
(d) establish appropriate measures to protect traditional knowledge.
4. The Parties shall provide for reproduction rights and communication to the public rights to copyright owners and phonogram producers that are consistent with the World Intellectual Property Organization Copyright Treaty (WCT) and the World Intellectual Property Organization Performances and Phonograms Treaty (WPPT). The Parties shall provide performersâ rights consistent with the TRIPS Agreement. The Parties may establish limitations and exceptions in their domestic laws as acceptable under the Berne Convention for the Protection of Literary and Artistic Works (1971), the TRIPS Agreement, the WCT and the WPPT. These provisions shall be understood to permit Parties to devise new exceptions and limitations that are appropriate in the digital environment.
5. Subject to their obligations under the TRIPS Agreement, each Party may limit the rights of the performers and producers of phonograms and broadcasting entities of the other Party to the rights its persons are accorded within the jurisdiction of the other Party.
Article 10.4. Trade Marks
1. Each Party shall afford an opportunity for interested parties to oppose the application of a trade mark and request cancellation of a registered trade mark.
2. In relation to trade marks, Parties are encouraged to classify goods and services according to the classification of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (1979).
Article 10.5. Geographical Indications
1. The terms listed in Annex 10.A are recognised as geographical indications for wines and spirits in the respective Party, within the meaning of paragraph 1 of Article 22 of the TRIPS Agreement. Subject to domestic laws,â in a manner that is consistent with the TRIPS Agreement, such terms will be protected as geographical indications in the territories of the other Parties.
2. At the request of a Party, the Commission may decide to add or remove geographical indications from Annex 10.A.
Article 10.6. Country Names
The Parties shall provide the legal means for interested parties to prevent commercial use of country names of the Parties in relation to goods in a manner which misleads consumers as to the origin of such goods.
Article 10.7. Cooperation
The Parties agree to cooperate, consistent with the principles set out in Article 10.2. Such cooperation may include, inter alia:
(a) the notification of contact points for the enforcement of intellectual property rights;
(b) exchange of information relating to developments in intellectual property policy in their respective agencies. Such developments may include, but are not limited to, the implementation of appropriate limitations and exceptions under copyright law and the implementation of measures concerning the appropriate protection of digital rights management information;
(c) exchange of information on the implementation of intellectual property systems, aimed at promoting the efficient registration of intellectual property rights;
(d) promotion of the development of contacts and cooperation among their respective agencies, including enforcement agencies, educational institutions and other organisations with an interest in the field of intellectual property rights;
(e) policy dialogue on initiatives on intellectual property in multilateral and regional forums;
(f) exchange of information and cooperation on appropriate initiatives to promote awareness of intellectual property rights and systems; and
(g) such other activities and initiatives as may be mutually determined among the Parties.
Chapter 11. GOVERNMENT PROCUREMENT
Article 11.1. Definitions for the Purposes of this Chapter:
build-operate-transfer contract and public works concession contract mean any contractual arrangement the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plant, buildings, facilities or other government-owned works and under which, as consideration for a supplier's execution of a contractual arrangement, the entity grants to the supplier, for a specified period of time, temporary ownership or a right to control and operate, and demand payment for the use of such works for the duration of the contract;
entity means an entity listed in Annex 11.A;
government procurement or procurement means the process by which entities purchase goods and services;
measures relating to government procurement means any law, regulation, policy, or procedure of general application relating to government procurement;
offsets means conditions used to encouraged local development or improve the balance of payments accounts by means of domestic content, licensing of technology, investment requirements, counter-trade or similar requirements;
publish means to disseminate information in an electronic or paper medium that is distributed widely and is readily accessible to the general public;
supplier means a natural or legal person of a Party that provides or could provide goods or services to an entity;
technical specification means a tendering requirement that: (a) sets out the characteristics of:
(i) | goods to be procured, such as quality, performance, safety and dimensions, or the process and methods for their production, or
(ii) services to be procured, or the processes or methods for their provision, including any applicable administrative provisions;
(b) addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service; or
(c) sets out conformity assessment procedures prescribed by an entity.
Article 11.2. Objectives
The objectives of this Chapter are to recognise the importance of conducting government procurement in accordance with the fundamental principles of transparency, value for money, open and effective competition, fair dealing, accountability and due process, and non-discrimination.
Article 11.3. Scope
1. This Chapter applies to measures adopted or maintained by a Party relating to government procurement by any contractual means, including purchase and rental or lease, with or without an option to buy, build-operate-transfer contracts and public works concessions contracts:
(a) by entities listed in Annex 11.A, and their successors other than those subsequently corporatised, commercialised or privatised;
(b) in which the contract has a value not less than the relevant threshold converted into respective currencies as set out in Annex 11.C; and
(c) subject to any other conditions specified in the Annexes. 2. This Chapter does not apply to:
(a) the purchase or acquisition of goods and services by an entity of a Party from another entity of that Party, except where tenders are called, in which case this Chapter shall apply;
(b) non-contractual agreements, or any form of assistance to persons or governmental authorities, including foreign assistance, grants, loans, equity infusions, fiscal incentives, subsidies, guarantees, cooperative agreements, sponsorship arrangements and governmental provision of goods and services;
(c) purchases funded by international grants, loans or other assistance, where the provision of such assistance is subject to conditions inconsistent with the provisions of this Chapter;
(d) procurement of goods and services (including construction) outside the territory of the procuring Party, for consumption outside the territory of the procuring Party;
(e) acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions, and sale and distribution services for government debt; or
(f) hiring of government employees or other long-term staff and personnel, and related employment measures.
3. Each Party shall ensure that its entities shall not prepare, design or otherwise structure or divide, at any stage of the procurement, any procurement in order to avoid the obligations of this Chapter.
Article 11.4. National Treatment and Non-Discrimination
1. With respect to any measures regarding government procurement covered by this Chapter, each Party shall grant to goods, services and suppliers of the other Parties treatment no less favourable than that accorded by it to domestic goods, services and suppliers.
2. With respect to any measures regarding government procurement covered by this Chapter, no Party shall allow its entities to:
(a) treat a locally established supplier less favourably than another locally established supplier on the basis of the degree of foreign affiliation to, or ownership by a person of, another Party; or
(b) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier are goods or services of another Party.
3. A Party shall not discriminate in favour of any enterprise, whether or not the Party is a shareholder in that enterprise.
4. This Article shall not apply to measures concerning customs duties and charges of any kind imposed on or in connection with importation, the method of levying such duties and charges, other import regulations, or to measures affecting trade in services other than measures specifically governing procurement covered by this Chapter.