Section CHAPTER 8. Electronic Commerce

Article 70. Scope

This Chapter shall apply to measures by a Party affecting electronic commerce, including for goods and services, in the context of their bilateral trade.

Article 71. General Provisions

1. The Parties recognise the economic growth and opportunity provided by the increasing use of electronic commerce in trade in goods and services, among others, in particular for businesses and consumers, the importance of avoiding barriers to its use and development and the need to create an environment of trust and confidence in its use.
2. The Parties recognise the principle of technological neutrality in the sense that any provisions related to trade in services do not distinguish between the different technological means through which a service may be supplied.
3. In the event of any inconsistency between this Chapter and Chapter 2, 6, 9 or 11, the Chapter other than this Chapter shall prevail to the extent of the inconsistency.
4. This Chapter shall not apply to: (a) government procurement; (b) subsidies as defined in the Agreement on Subsidies and Countervailing Measures in Annex 1A to the WTO Agreement; and (c) taxation measures.

Article 72. Definitions

For the purposes of this Chapter:
(a) "digital products" means such products as computer programmes, texts, plans, designs, video, images and sound recordings or any combinations thereof, that are digitally encoded and transmitted electronically;
Note 1: For the purposes of this Chapter, digital products do not include those that are fixed on a carrier medium. Digital products that are fixed on carrier medium shall be subject to Chapter 2.
Note 2: For the purposes of this Chapter, digital products are those produced for commercial sale or distribution.
(b) "electronic certificate" means an electromagnetic record prepared for certifying that matters used to confirm that the user has performed the electronic signature are pertaining to such user;
(c) "electronic signature" means a measure taken with respect to information that can be recorded in an electromagnetic record and which fulfils both of the following requirements:
(i) that the measure indicates that such information has been approved by a person who has taken such measure; and
(ii) that the measure confirms that such information has not been altered;
(d) "parties to an electronic transaction" means at least one party in each of the Parties, all of them involved in an electronic transaction or an electronic communication that has significant relevance to that transaction;
(e) "trade administration documents" means forms that a Party issues or controls that must be completed:
(i) by or for an importer or exporter in connection with the importation or exportation of products; or
(ii) by a service supplier in connection with trade in services; and Note: For the purposes of this Chapter, "trade in services" shall have the same meaning as "trade in services" defined in subparagraph (t) of Article 44.
(f) "transmitted electronically" means transferred by any electromagnetic means.

Article 73. Non-discriminatory Treatment of Digital Products

1. Unless otherwise specified in its List of Reservations referred to in Articles 57 and 90, which shall apply mutatis mutandis, each Party shall:
(a) not adopt measures that accord less favourable treatment to digital products of the other Party than it accords to its own like digital products. When a Party identifies a measure of such nature that has been adopted before the entry into force of this Agreement and is maintained by the other Party, that other Party shall endeavour to eliminate it; and
(b) not adopt or maintain measures that accord less favourable treatment to digital products of the other Party than it accords to like digital products of a non-Party.
2. In implementing its obligations under paragraph 1, each Party shall, in good faith, determine whether a digital product is a digital product of a Party, of the other Party or of a non-Party. Such determination shall be made in a transparent, objective, reasonable and fair manner. 3. Each Party shall, upon request by the other Party, explain how it determines the origin of a digital product in implementing its obligations under paragraph 1.
4. The Parties shall cooperate in international organisations and fora to foster the development of criteria determining the origin of a digital product, with a view to considering the incorporation of such criteria into this Agreement.
5. The Parties shall review this Article five years after the date of entry into force of this Agreement, unless they agree otherwise.

Article 74. Non-discriminatory Treatment of Services

Each Party shall ensure that its measures governing electronic commerce do not discriminate the supply of services transmitted electronically against the supply of like services by other means.

Article 75. Market Access

Unless otherwise specified in its List of Reservations referred to in Articles 57 and 90, which shall apply mutatis mutandis, each Party shall not adopt or maintain measures that unduly prohibit or restrict electronic commerce.

Article 76. Customs Duties

1. Recognising the importance of maintaining the current practice of not imposing customs duties on electronic transmissions, the Parties shall cooperate to make this practice binding within the framework of the World Trade Organization, with a view to considering its incorporation into this Agreement.
2. In the context of paragraph 1, the Parties confirm their current practice of not imposing customs duties on electronic transmissions under paragraph 46 of the Hong Kong Ministerial Declaration of December 2005.

Article 77. Domestic Regulation

Each Party shall endeavour to ensure that all its measures affecting electronic commerce are administered in a transparent, objective, reasonable and impartial manner, and are not more burdensome than necessary.

Article 78. Electronic Signatures and Certification Services

1. Neither Party shall adopt or maintain legislation for electronic signatures that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate electronic signature methods for that transaction or electronic communication that has significant relevance to that transaction;
(b) prevent parties to an electronic transaction from having the opportunity to prove in court that their electronic transaction or electronic communication that has significant relevance to that transaction complies with any legal requirements with respect to electronic signatures; or
(c) prevent parties to an electronic transaction from choosing the court or tribunal to which they bring any dispute concerning the transaction.
2. Notwithstanding paragraph 1, each Party may require that, for a particular category of electronic transactions or electronic communications that have significant relevance to those transactions, the electronic signatures meet certain performance standards or are based on a specific electronic certificate issued by a supplier of certification services accredited or recognised in accordance with the Party's laws and regulations, provided that the requirement:
(a) serves a legitimate policy objective; and
(b) is substantially related to achieving that objective.
3. This Article shall not apply to any transactions or communications that have significant relevance to those transactions, if those transactions are not permitted to be made electronically under each Party's laws and regulations.
4. Each Party shall, in accordance with its legislation on electronic signatures and certification services, endeavour to facilitate the procedure of accreditation or recognition of suppliers of certification services, which have already obtained accreditation or recognition under the legislation of the other Party.

Article 79. Paperless Trade Administration

1. Each Party shall endeavour to make all trade administration documents available to the public in an electronic form.
2. Each Party shall endeavour to accept trade administration documents submitted electronically as the legal equivalent of the paper versions of such documents.
3. The Parties shall cooperate bilaterally and in international fora to enhance the acceptance of electronic versions of trade administration documents.

Article 80. Protection of Online Consumers

1. The Parties recognise the importance of adopting and maintaining transparent and effective consumer protection measures for electronic commerce as well as measures conducive to the development of consumer confidence.
2. The Parties recognise the importance of cooperation between their respective competent authorities in charge of consumer protection on activities related to electronic commerce in the context of their bilateral trade in order to enhance consumer protection.
3. The Parties recognise the importance of:
(a) adopting or maintaining measures, in accordance with their respective laws and regulations, to protect the personal data of electronic commerce users; and
(b) taking international standards and criteria into account in developing such measures.

Article 81. Private Sector Participation

1. Each Party shall endeavour to ensure that regulatory frameworks governing electronic commerce support industry-led development of electronic commerce with a view to promoting bilateral trade between the Parties.
2. Each Party shall encourage the private sector to adopt self-regulation, including through codes of conduct, guidelines and enforcement mechanisms, with a view to supporting electronic commerce.

Article 82. Cooperation

1. The Parties shall cooperate to identify and overcome obstacles encountered in particular by small and medium-sized enterprises in using electronic commerce in the context of their bilateral trade.
2. The Parties shall endeavour to share information and experiences, including on related laws, regulations and best practices in the field of electronic commerce in relation to, inter alia:
(a) data privacy;
(b) fight against unsolicited commercial messages transmitted through the Internet such as electronic mails; (c) consumer confidence in electronic commerce;
(d) cyber-security;
(e) intellectual property;
(f) electronic government; and (g) public morals, in particular ethics for young generations.
3. Each Party shall encourage, through existing means available to it, the activities of non-profit organisations in that Party aimed at promoting electronic commerce, including the exchange of information and views.
4. The Parties shall, where appropriate, cooperate in relevant international organisations and fora to contribute to the development of the international framework for electronic commerce.

Article 83. Exceptions

For the purposes of this Chapter, Articles 22, 55 and 56 shall apply mutatis mutandis.

Section CHAPTER 9. Investment

Article 84. Scope and Coverage

1. This Chapter shall apply to measures adopted or maintained by a Party relating to investors of the other Party and to their investments in the Area of the former Party.
2. It is understood that this Chapter shall also apply to measures adopted or maintained by a Party relating to investments made by investors of the other Party in the Area of the former Party prior to the entry into force of this Agreement.
3. In the event of any inconsistency between this Chapter and Chapter 6 with regard to measures by a Party affecting trade in services, Chapter 6 shall prevail to the extent of the inconsistency.

Article 85. Definitions

For the purposes of this Chapter:
(a) "enterprise" means any entity duly constituted or organised under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, including any corporation, partnership, sole proprietorship, company, joint venture or other association;
(b) "freely convertible currency" means any currency which is widely traded in international foreign exchange markets and widely used in international transactions;
(c) "investment" means any kind of asset, particularly:
(i) an enterprise or a branch of an enterprise;
(ii) shares, stocks or any other kind of equity participation in an enterprise, including rights derived therefrom;
(iii) bonds, debentures, loans and other forms of debt,including rights derived therefrom;
(iv) claims to money and to any performance associated with an enterprise and having an economic value;
(v) intangible assets such as intellectual property rights and goodwill;
(vi) rights conferred pursuant to law or contract such as concessions, licences, authorisations and permits, including those for cultivation, exploration, extraction and exploitation of natural resources;
(vii) rights under contracts, including turnkey, construction, management, production and revenue-sharing contracts; and
(viii) any other tangible and intangible, movable and immovable property, and any related property rights, such as mortgages, liens and pledges; A change in the form of the asset does not affect its character as an investment;
(d) "investment activities" means establishment, acquisition, expansion, management, conduct, operation, maintenance, use, enjoyment, liquidation, sale or other disposition of investment;
(e) "investment made" means an investment which an investor of a Party has established, acquired or expanded in the Area of the other Party;
(f) "investment of an investor of a Party" means an investment that is owned or controlled, either directly or indirectly, by an investor of the Party;
(g) "investor of a Party" means:
(i) a natural person, who under the law of the Party:
(A) in respect of Japan, is a national of Japan; or
(B) in respect of Switzerland:
(aa) is a national of Switzerland; or
(bb) has the right of permanent residence; or
(ii) an enterprise constituted or organised under the applicable law of the Party and carrying out substantial business activities in the Area of that Party, that is in the process of making an investment or has made an investment in the Area of the other Party; and
(h) "measure" means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action or any other form.

Article 86. General Treatment and Protection

1. Each Party shall accord to investments of investors of the other Party fair and equitable treatment and full protection and security. Neither Party shall impair by unreasonable or arbitrary measures the management, conduct, operation, maintenance, use, enjoyment, liquidation, sale or other disposition of such investments.
2. Each Party shall observe any written obligation it may have entered into with regard to a specific investment by an investor of the other Party, which the investor could have relied on at the time of establishment, acquisition or expansion of such investment.

Article 87. National Treatment

Each Party shall accord to investors of the other Party and to their investments, in relation to their investment activities, treatment no less favourable than that it accords, in like situations, to its own investors and to their investments.

Article 88. Most-favoured-nation Treatment

1. Each Party shall accord to investors of the other Party and to their investments, in relation to their investment activities, treatment no less favourable than that it accords, in like situations, to investors of a non-Party and to their investments.
2. It is understood that the treatment referred to in paragraph 1 does not include treatment accorded to investors of a non-Party and their investments by provisions concerning the settlement of investment disputes between a Party and the non-Party that are provided for in other international agreements.
3. If a Party accords more favourable treatment to investors of a non-Party and their investments by concluding or amending a free trade agreement, customs union or similar agreement that provides for substantial liberalisation of investment, it shall not be obliged to accord such treatment to investors of the other Party and their investments. Any such treatment accorded by a Party shall be notified to the other Party without delay and the former Party shall endeavour to accord to investors of the latter Party and their investments treatment no less favourable than that accorded under the concluded or amended agreement. The former Party, upon request by the latter Party, shall enter into negotiations with a view to incorporating into this Agreement treatment no less favourable than that accorded under such concluded or amended agreement.

Article 89. Transfers

1. Each Party shall ensure that all transfers relating to investments in its Area of an investor of the other Party may be made freely into and out of its Area without delay. Such transfers shall include, in particular, those of:
(a) the initial capital and additional amounts to maintain or increase the investments;
(b) profits, interests, dividends, capital gains, royalties, fees and other current incomes accruing from the investments;
(c) payments made under a contract, including a loan agreement;
(d) proceeds from the total or partial sale or liquidation of the investments;
(e) earnings and other remuneration of personnel engaged from abroad in connection with the investments;
(f) payments made in accordance with Articles 91 and 92; and
(g) payments arising out of the settlement of a dispute under Article 94.
2. Each Party shall further ensure that transfers referred to in paragraph 1 may be made in a freely convertible currency. A transfer shall be able to be made at the market rate of exchange prevailing on the date of the transfer.
3. It is understood that paragraphs 1 and 2 are without prejudice to the equitable, non-discriminatory and good faith application by a Party of its laws relating to:
(a) bankruptcy, insolvency or the protection of the rights of creditors;
(b) the issuing, trading or dealing in securities;
(c) criminal or penal offences and the recovery of proceeds of crimes;
(d) reports or record keeping of transfers of currency or other monetary instruments; or
(e) ensuring compliance with judgments or orders in adjudicatory proceedings.

Article 90. Reservations

1. Articles 87, 88 and 96 shall not apply to:
(a) any existing non-conforming measure by a Party as set out in its List of Reservations in Section 1 of Appendix 1 or Section 1 of Appendix 2 to Annex IX, that is maintained, continued, or renewed at any time;
(b) an amendment or modification to any non-conforming measure covered by subparagraph (a) to the extent that the amendment or modification does not decrease the conformity of the measure with Articles 87, 88 and 96; and
(c) any measure adopted or maintained by a Party, in accordance with its List of Reservations in Section 2 of Appendix 1 or Section 2 of Appendix 2 to Annex IX, to the extent that such measures are inconsistent with Articles 87, 88 and 96.
2. In case of an amendment or modification to any existing non-conforming measure as referred to in subparagraph 1(b) or adoption of a measure as referred to in subparagraph 1(c), a Party shall notify the other Party thereof, providing detailed information, prior to the amendment, modification or adoption, or in exceptional circumstances, as soon as possible thereafter.
3. Neither Party shall, under any measure adopted after the date of entry into force of this Agreement and covered by its List of Reservations set out in Annex IX, require an investor of the other Party, by reason of its nationality, to sell or otherwise dispose of an investment that exists at the time the measure becomes effective.
4. As part of the review provided for in Article 102, the Parties undertake to review their Lists of Reservations set out in Annex IX with a view to reducing the scope of the reservations therein or removing them.
5. A Party may, at any time, either upon request of the other Party or unilaterally, remove in whole or in part its reservations set out in Annex IX by a written notification to that other Party.
6. Articles 87 and 88 shall not apply to any measure covered by the exceptions to, or derogations from, obligations under Articles 3 and 4 of the TRIPS Agreement, as specifically provided in Articles 3 to 5 of the TRIPS Agreement.
7. Articles 87, 88 and 96 shall not apply to any measure that a Party adopts or maintains with respect to government procurement.

Article 91. Expropriation and Compensation

1. Neither Party shall expropriate or nationalise in its Area investments of investors of the other Party or take any measure tantamount to expropriation or nationalisation (hereinafter referred to as "expropriation") except:
(a) for a purpose which is in the public interest;
(b) in a non-discriminatory manner;
(c) in accordance with due process of law; and
(d) against prompt, adequate and effective compensation pursuant to paragraphs 2 to 4.
2. The amount of compensation shall be equivalent to the fair market value of the expropriated investment at the time when the expropriation was publicly announced or when it occurred, whichever is the earlier. The fair market value shall not reflect any change in market value occurring because the expropriation had become publicly known earlier.
3. The compensation shall be paid without delay and shall include interest at a commercial rate established on a market basis, taking into account the length of time from the date of expropriation to the date of payment. It shall be effectively realisable, freely transferable and freely convertible at the market exchange rate prevailing on the date of expropriation into freely convertible currencies.
4. Without prejudice to Article 94, the investor affected by the expropriation shall have the right, under the law of the Party making the expropriation, to prompt review, by a court of justice, an administrative tribunal or another independent authority of that Party, of his case and of the valuation of his investment in accordance with the principles set out in this Article.

Article 92. Treatment In Case of Strife

1. Each Party shall accord to investors of the other Party that have suffered loss or damage relating to their investments in its Area due to armed conflict, revolution, insurrection, civil disturbance or any other similar event in its Area, treatment, as regards restitution, indemnification, compensation or any other settlement, that is no less favourable than that it accords to investors of its own or of a non-Party.
2. Any payments made as a means of settlement referred to in paragraph 1 shall be effectively realisable, freely transferable and freely convertible at the market exchange rate into freely convertible currencies.

Article 93. Subrogation

If an investor of a Party receives payment, pursuant to an insurance, guarantee or indemnity contract, from an insurer constituted or organised under the law of that Party, the other Party shall recognise the assignment of any right or claim of the investor to the insurer, and the right of the insurer to exercise such right or claim by virtue of subrogation to the same extent as the predecessor in title.

Article 94. Settlement of Investment Disputes between an Investor and a Party

1. For the purposes of this Chapter, "investment dispute" means a dispute between a Party and an investor of the other Party that has incurred loss or damage by reason of, or arising out of, an alleged breach by the former Party of any obligation under this Chapter with respect to the investor or its investment. This Article shall not apply to disputes arising out of events which occurred prior to the entry into force of this Agreement.
2. Any investment dispute shall, as far as possible, be settled amicably through consultations between the investor and the disputing Party (hereinafter collectively referred to in this Article as "the disputing parties") at the request of the investor.
3. If the investment dispute cannot be settled through consultations within six months from the date on which the disputing investor requested such consultations in writing, the disputing investor may submit the investment dispute to international conciliation or arbitration at the following institutions or under the following rules:
(a) the International Centre for Settlement of Investment Disputes (hereinafter referred to in this Article as "ICSID") established by the Convention on the Settlement of Investment Disputes between States and Nationals of other States done at Washington, on 18 March 1965;
(b) the Additional Facility Rules of ICSID, provided that either Party, but not both, is a party to the ICSID Convention; or
(c) an ad hoc arbitral tribunal which, unless otherwise agreed upon by the disputing parties, shall be established under the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL) adopted on 28 April 1976. 4. Each Party hereby gives its consent to the submission of an investment dispute by a disputing investor to international conciliation or arbitration referred to in paragraph 3 regarding an investment made.
5. Notwithstanding paragraph 4, no investment dispute may be submitted to conciliation or arbitration under paragraph 3, if more than five years have elapsed since the date on which the disputing investor acquired or should have first acquired, whichever is the earlier, knowledge of the incurred loss or damage referred to in paragraph 1.
6. A disputing investor may submit the investment dispute to international conciliation or arbitration if:
(a) the disputing investor has not initiated any proceedings for the resolution of the investment dispute before courts of justice or administrative tribunals or agencies of the disputing Party; or
(b) where the disputing investor has initiated any proceedings for the resolution of the investment dispute before courts of justice or administrative tribunals or agencies of the disputing Party, the disputing investor withdraws the investment dispute from such proceedings.
For the purpose of withdrawal, a written waiver shall be included in the written request for conciliation or arbitration by which the disputing investor waives any right to initiate or continue before any courts of justice or administrative tribunals or agencies under the law of either Party, any proceeding with respect to any alleged breach of this Chapter. It is understood that a disputing investor may initiate or continue an action that seeks interim injunctive relief and does not involve the payment of monetary damages before a judicial or administrative tribunal of the disputing Party, provided that the action is brought for the sole purpose of preserving the disputing investor's rights and interests while the conciliation or arbitration is pending.
7. Unless the disputing parties agree otherwise, the arbitration shall be held in a country that is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958.
8. The arbitral tribunal shall decide the investment dispute in accordance with this Chapter and applicable rules of international law.
Where the investment dispute includes a claim based on paragraph 2 of Article 86, the arbitral tribunal shall decide on that claim in accordance with this Chapter and the following:
(a) the rules of law specified in the pertinent investment contract, or other rules of law the disputing parties may agree upon; or (b) in the absence of rules of law referred to in subparagraph (a):
(i) such rules of international law as may be applicable; and
(ii) the law of the respondent, including its rules on the conflict of laws.
9. The disputing Party shall notify the other Party in writing of the investment dispute submitted to international conciliation or arbitration no later than 30 days after the date on which it was submitted, and provide that other Party with copies of all pleadings filed in the arbitration.
10. Upon written notice to the disputing parties, the Party which is not the disputing Party may make submissions to the arbitral tribunal on a question of interpretation of this Chapter.
11. The disputing Party may not assert as a defence its immunity or the fact that the disputing investor has received or will receive, by virtue of an insurance contract, guarantee or indemnity, a compensation covering, in whole or in part, the incurred loss or damage.
12. Neither Party shall give diplomatic protection, or bring an international claim, in respect of an investment dispute submitted to international arbitration, unless the disputing Party has failed to abide by and comply with the award rendered. Diplomatic protection, for the purposes of this paragraph, shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the investment dispute.
13. The decision of arbitration shall be final and binding upon the disputing parties and shall be executed without delay in accordance with the law of the disputing Party.

Article 95. General and Security Exceptions

1. In respect of the making of investments, Articles XIV and XIVbis of the GATS, which are hereby incorporated into and made part of this Agreement, mutatis mutandis, shall apply.
2. Paragraph 1 of Article XIVbis of the GATS shall also apply, mutatis mutandis, to investments made.
3. This Article shall not apply to paragraph 1 of Article 86, and Articles 91 and 92.
4. In exceptional circumstances, where a Party takes a measure pursuant to paragraphs 1 and 2, that Party shall, prior to the entry into force of the measure or as soon as possible thereafter, notify the other Party of the following:
(a) the sector and sub-sector or activity affected by the measure;
(b) the obligation or provisions of this Agreement affected by the measure;
(c) the legal basis of the measure;
(d) a succinct description of the measure; and
(e) the purpose of the measure.

Article 96. Prohibition of Performance Requirements

For the purposes of this Chapter, the Annex to the Agreement on Trade-Related Investment Measures in Annex 1A to the WTO Agreement is hereby incorporated into and made part of this Agreement, mutatis mutandis.

Article 97. Temporary Safeguard Measures

1. The Parties endeavour to avoid the imposition of restrictions to safeguard the balance of payments.
2. A Party may adopt or maintain restrictive measures with regard to cross-border capital transactions as well as payment and transfers relating to investment:
(a) in the event of serious balance-of-payments and external financial difficulties or threat thereof; or
(b) in exceptional cases where movements of capital cause or threaten to cause serious difficulties for macroeconomic management, in particular monetary and exchange rate policies.
3. Restrictive measures adopted or maintained by a Party under paragraph 2:
(a) shall ensure that investors of the other Party are treated as favourably as those of any non-Party;
(b) shall be consistent with the Articles of Agreement of the International Monetary Fund;
(c) shall not exceed those necessary to deal with the circumstances set out in paragraph 2;
(d) shall be temporary and eliminated as soon as conditions permit;
(e) shall be promptly notified to the other Party; and
(f) shall avoid unnecessary damages to the commercial, economic and financial interests of the other Party.
4. Nothing in this Article shall be so construed as to alter the rights enjoyed and obligations undertaken by a Party as a party to the Articles of Agreement of the International Monetary Fund.

Article 98. Prudential Measures

Article VI of Annex VI shall apply to this Chapter, mutatis mutandis.

Article 99. Special Formalities

Nothing in Article 87 shall be so construed as to prevent a Party from adopting or maintaining a measure that prescribes special formalities in connection with the establishment of an investment by investors of the other Party, such as compliance with requirements on registration on residency, provided that such formalities do not materially impair the protection afforded by the former Party to investors of the latter Party and investment of the investors pursuant to this Chapter.

Article 100. Taxation Measures

1. The following provisions shall apply to taxation measures of each Party: (a) Articles 87 and 88; and (b) Article 91, to the extent that such taxation measures constitute expropriation as provided for in paragraph 1 of that Article.
2. For the purposes of subparagraph 1(a), subparagraphs (d) and (e) of Article XIV of the GATS are hereby incorporated into and made part of this Agreement, mutatis mutandis.
3. A Party may not invoke Article 87 with respect to a measure of the other Party that falls within the scope of an international agreement between the Parties relating to the avoidance of double taxation.
4. For the purposes of subparagraph 1(a), Article 94 shall not apply in respect of taxation measures.
5. For the purposes of subparagraph 1(b), Article 94 shall apply in respect of taxation measures.

Article 101. Health, Safety and Environmental Measures

The Parties recognise that it is inappropriate to encourage investment activities by relaxing domestic health, safety or environmental measures or lowering labour standards. To this effect, each Party should not waive or otherwise derogate from such measures and standards as an encouragement for establishment, acquisition or expansion of investments in its Area.

Article 102. Review

1. With a view to further progressive liberalisation of investments, the Parties shall review the legal framework, the investment climate and the flow of investment between their Areas consistent with their commitments under other international agreements on investment not later than three years after the date of entry into force of this Agreement and in regular intervals thereafter.
2. The review of the legal framework referred to in paragraph 1 shall include the review of measures adopted or maintained by a Party pursuant to subparagraph 1(c) of Article 90.

Section CHAPTER 10. Competition

Article 103. Measures Against Anticompetitive Activities

1. Recognising that anticompetitive activities may nullify or impair the benefits of liberalisation of trade and investment and impede the efficient functioning of its market, each Party shall take measures which it considers appropriate against anticompetitive activities, in accordance with its laws and regulations.
2. Any such measures shall be taken in conformity with the principles of transparency, non-discrimination and procedural fairness.
3. For the purposes of this Chapter, "anticompetitive activity" means any conduct or transaction that may be subject to penalties, sanctions or other relief under the competition laws and regulations of either Party. In particular, it includes:
(a) private monopolisation, unreasonable restraint of trade and unfair trade practices under the competition laws and regulations of Japan; and
(b) unlawful agreements between enterprises and unlawful practices of enterprises having a dominant position under the competition laws and regulations of Switzerland.

Article 104. Cooperation on Addressing Anticompetitive Activities

1. The Parties shall, in accordance with their respective laws and regulations, cooperate on addressing anticompetitive activities, subject to their respective available resources, with the aim of contributing to the effective enforcement of the competition laws and regulations of each Party through the development of a cooperative relationship between the competition authorities of the Parties, thus avoiding or lessening the possibility of conflicts between the Parties in all matters pertaining to the application of the competition laws and regulations of each Party.
2. The details and procedures of cooperation under this Article shall be specified in Chapter 3 of the Implementing Agreement.

Article 105. Consultations

After all applicable procedures under Article 104 have been undergone, a Party which considers that there remain adverse trade effects caused by an anticompetitive activity may request the other Party to enter into consultations in the Joint Committee with a view to eliminating such adverse trade effects. The consultations in the Joint Committee shall:
(a) not examine the appropriateness of the enforcement of the competition laws and regulations by the competition authority of either Party; and
(b) not infringe upon the independence of the competition authority of either Party in exercising its authority.

Article 106. Non-application of Paragraph 1 of Article 5 and Chapter 14

1. Paragraph 1 of Article 5 and Chapter 14 shall not apply to this Chapter.
2. Chapter 3 of the Implementing Agreement provides for the details and procedures for the exchange of information, including confidential information, under this Chapter.

Section CHAPTER 11. Intellectual Property

Article 107. General Provisions

1. The Parties shall grant and ensure adequate, effective and non-discriminatory protection of intellectual property, promote efficiency and transparency in the administration of their respective intellectual property protection systems and provide for measures for adequate and effective enforcement of intellectual property rights against infringement, counterfeiting and piracy, in accordance with the provisions of this Chapter and the international agreements to which both Parties are parties.
2. "Intellectual property" referred to in this Chapter means all categories of intellectual property:
(a) that are subject of Articles 114 to 121; and/or
(b) that are covered by the TRIPS Agreement and/or the relevant international agreements referred to in the TRIPS Agreement.
3. The Parties reaffirm their commitment to comply with the obligations set out in the international agreements relating to intellectual property to which both Parties are parties at the date of entry into force of this Agreement and any amendment thereto which becomes effective for both Parties, including the following:
(a) the TRIPS Agreement;
(b) the Paris Convention for the Protection of Industrial Property done at Paris on 20 March 1883, as revised at Brussels on 14 December 1900, at Washington on 2 June 1911, at The Hague on 6 November 1925, at London on 2 June 1934, at Lisbon on 31 October 1958, and at Stockholm on 14 July 1967 and as amended on 28 September 1979 (hereinafter referred to as "the Paris Convention");
(c) the Patent Cooperation Treaty done at Washington on 19 June 1970, amended on 28 September 1979, modified on 3 February 1984, and on 3 October 2001;
(d) the Strasbourg Agreement Concerning the International Patent Classification done at Strasbourg on 24 March 1971, as amended on 28 September 1979;
(e) the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure done at Budapest on 28 April 1977, and amended on 26 September 1980;
(f) the 1991 Act of the International Convention for the Protection of New Varieties of Plants of 2 December 1961 as revised at Geneva on 10 November 1972, on 23 October 1978, and on 19 March 1991 (hereinafter referred to as "the 1991 UPOV Convention");
(g) the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks adopted at Madrid on 27 June 1989 and amended on 3 October 2006;
(h) the Trademark Law Treaty adopted at Geneva on 27 October 1994;
(i) the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks done at Nice on 15 June 1957, as revised at Stockholm on 14 July 1967, and at Geneva on 13 May 1977, and amended on 28 September 1979;
(j) the Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods done at Madrid on 14 April 1891;
(k) the Berne Convention for the Protection of Literary and Artistic Works done at Berne on 9 September 1886, completed at Paris on 4 May 1896, revised at Berlin on 13 November 1908, completed at Berne on 20 March 1914, revised at Rome on 2 June 1928, at Brussels on 26 June 1948, at Stockholm on 14 July 1967 and at Paris on 24 July 1971 and amended on 28 September 1979 (hereinafter referred to as "the Berne Convention");
(l) the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations done at Rome on 26 October 1961 (hereinafter referred to as "the Rome Convention");
(m) the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms done at Geneva on 29 October 1971;
(n) WIPO Copyright Treaty adopted in Geneva on 20 December 1996; and (o) WIPO Performances and Phonograms Treaty adopted in Geneva on 20 December 1996 (hereinafter referred to as "the WPPT").
4. In common recognition of the importance of the following multilateral agreements for international efforts to protect intellectual property, each Party seeks to ratify or accede to the following multilateral agreements to which it is not yet a party:
(a) the Patent Law Treaty adopted at Geneva on 1 June 2000;
(b) the Singapore Treaty on the Law of Trademarks adopted in Singapore on 27 March 2006; and
(c) the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs adopted by the Diplomatic Conference on 2 July 1999.

Article 108. National Treatment

1. Each Party shall accord to nationals of the other Party treatment no less favourable than the treatment it accords to its own nationals with regard to the protection of intellectual property in accordance with Articles 3 and 5 of the TRIPS Agreement.
2. For the purposes of this Article and Article 109, "nationals" shall have the same meaning as in the TRIPS Agreement, and "protection" shall include matters affecting the availability, acquisition, scope, maintenance, and enforcement of intellectual property rights as well as those matters affecting the use of intellectual property rights specifically addressed in this Chapter.

Article 109. Most-favoured-nation Treatment

1. Each Party shall accord to nationals of the other Party treatment no less favourable than the treatment it accords to the nationals of a non-Party with regard to the protection of intellectual property in accordance with Articles 4 and 5 of the TRIPS Agreement.
2. Paragraph 1 shall not be so construed as to oblige either Party to accord to the nationals of the other Party any treatment accorded to the nationals of a non-Party by virtue of any agreement on the avoidance of double taxation.

Article 110. Enhancement of Efficiency of Procedural Matters

For the purposes of providing efficient administration of intellectual property protection system, each Party shall take appropriate measures to enhance the efficiency of its administrative procedures concerning intellectual property.

Article 111. Acquisition of Intellectual Property Rights

1. Where the acquisition of an intellectual property right is subject to the right being granted or registered, each Party shall ensure that, irrespective of whether an application for the granting or registration of an intellectual property right is filed as a national or as an international application under the applicable international agreements, the procedures for granting or registration of the right, subject to compliance with the substantive conditions for acquisition of the right, are conducive to the granting or registration within a reasonable period of time so as to avoid unwarranted curtailment of the period of protection.
2. Each Party shall make its practice regarding the examination of the indications of designated products and services under the classes applied in trademark applications as transparent as possible.

Article 112. Transparency

For the purposes of further promoting transparency in the administration of its intellectual property protection system, each Party shall take appropriate measures available to the extent possible under its laws and regulations to:
(a) publish information on:
(i) applications for and grant of patents;
(ii) registrations of utility models and industrial designs;
(iii) registrations of trademarks and applications therefor;
(iv) registrations of layout-designs of integrated circuits; and
(v) registrations of new varieties of plants and applications therefor, and make available to the public information contained in the dossiers thereof;
(b) make available to the public information on applications for the suspension by the competent authorities of the release of products infringing intellectual property rights as a border measure; and
(c) make available to the public information on its efforts to ensure effective enforcement of intellectual property rights and other information with regard to its intellectual property protection system.

Article 113. Promotion of Public Awareness Concerning Protection of Intellectual Property

The Parties shall take necessary measures to enhance public awareness of protection of intellectual property including educational and dissemination projects on the use of intellectual property as well as on the enforcement of intellectual property rights.

Article 114. Copyrights and Related Rights

1. Without prejudice to the obligations set out in the international agreements to which both Parties are parties, each Party shall, in accordance with its laws and regulations, grant and ensure adequate and effective protection to the authors of works and to performers, producers of phonograms and broadcasting organisations for their works, performances, phonograms and broadcasts, respectively.
2. In addition to the protection provided for in paragraph 1, each Party shall grant and ensure protection as provided for in Articles 5 and 6 of the WPPT to performers for their visual performances.
3. Each Party shall ensure that a broadcasting organisation in the Party has at least the exclusive right of authorising the following acts: the fixation, the reproduction of fixations, and the making available to the public of its broadcasts by wire or wireless means in such a way that members of the public may access them from a place and at a time individually chosen by them.
4. Each Party may, in its national legislation, provide for the same kinds of limitations or exceptions as in Article 16 of the WPPT with regard to the protection of performers for their visual performances and to the protection of broadcasting organisations, to the extent that such limitations and exceptions are compatible with the Rome Convention.
5. Each Party shall ensure that the author has the right, independently of the author's economic rights, and even after the transfer of the said rights, to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his or her honour or reputation.
6. The rights granted to the author in accordance with paragraph 5 shall, after his or her death, be maintained at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorised by the legislation of the Party in which protection is claimed.
7. The rights granted under paragraphs 5 and 6 shall be granted, mutatis mutandis, to performers as regards their live aural or visual performances, or performances fixed in phonograms or audiovisual fixations.
8. Each Party shall ensure that the general term of protection granted for works is the life of the author and at least 50 years after his or her death.
9. Each Party shall ensure that the term of protection for related rights, as well as for copyrights whose term of protection is calculated on a basis other than the life of a natural person, is no less than 50 years:
(a) after the authorised publication, or, failing such authorised publication within 50 years after the making of the work, no less than 50 years after the making, for works;
(b) after the authorised publication, or, failing such publication within 50 years after the fixation of the phonogram, no less than 50 years after the fixation, for phonograms;
(c) after the performance, for performances; or
(d) after the broadcast, for broadcasts. 10. For certain categories of works, each Party shall provide that the term of protection is the life of the author and no less than 70 years after his or her death, or no less than 70 years after the authorised publication, or, failing such authorised publication within 70 years after the making of the work, no less than 70 years after the making.
11. A Party may be exempted from its obligations under this Article where the exemptions as provided for in Articles 7 and 7bis of the Berne Convention may apply.
12. Each Party shall ensure non-discriminatory treatment for owners of copyright in the other Party with regard to the enjoyment and the exercise of copyrights, regardless of whether such copyrights are registered under the applicable laws and regulations of the former Party.

Article 115. Trademarks

1. Any sign, or any combination of signs, capable of distinguishing the products or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements, three-dimensional shapes and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant products or services, each Party may make eligibility for registration depend on distinctiveness acquired through use. Each Party may require, as a condition of registration, that signs be visually perceptible.
2. Each Party shall protect well-known marks in accordance with Article 6bis of the Paris Convention and paragraphs 2 and 3 of Article 16 of the TRIPS Agreement.
3. The Parties reaffirm the importance of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of the World Intellectual Property Organization (hereinafter referred to as "the WIPO") in 1999 in furtherance of protection of well-known marks and the Joint Recommendation Concerning Provisions on the Protection of Marks, and Other Industrial Property Rights in Signs, on the Internet adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of the WIPO in 2001 in furtherance of protection of signs on the Internet.
4. Each Party shall ensure that the owner of a registered trademark has the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs for products or services which are identical or similar to those in respect of which the trademark is registered, where such use would result in a likelihood of confusion. For the purposes of this paragraph, "using" such sign includes, at least, importing and exporting products or packages of products to which the sign is affixed.
5. Paragraph 4 shall also apply if only small quantities of products are imported or exported, as long as the import or export constitutes an infringement of the right conferred by a registered trademark under the laws and regulations of a Party. In case of the use of an identical sign for identical products or services, a likelihood of confusion shall be presumed. The rights described in paragraph 4 shall not prejudice any existing prior rights, nor shall they affect the possibility of the Parties making rights available on the basis of use.

Article 116. Industrial Designs

1. Each Party shall ensure that adequate and effective protection is provided to industrial designs, including to designs of a part of an article.
2. Each Party shall ensure that the owner of a protected industrial design has the right to prevent third parties not having the owner's consent from making, selling, importing or exporting articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design when such acts are undertaken for commercial purposes.
3. Paragraph 2 shall also apply if only small quantities of products are imported or exported, as long as the import or export constitutes an infringement of the right conferred by the protected industrial design under the laws and regulations of a Party.
4. Each Party shall ensure that the term of protection available is no less than 20 years.

Article 117. Patents

1. Subject to paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, including in the field of biotechnology, provided that they are new, involve an inventive step and are capable of industrial application. Subject to paragraph 3, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.
2. Each Party may exclude from patentability inventions, the prevention of the commercial exploitation of which within the Party is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by its law.
3. Each Party may also exclude from patentability:
(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals, with the exception of products consisting of a substance or a composition for use in any such method; and
(b) plant and animal varieties other than microorganisms, and essentially biological processes for the production of plants or animals other than non- biological and microbiological processes.
4. Each Party shall ensure that a patent confers on its owner exclusive rights:
(a) where the subject matter of a patent is a product, to prevent third parties not having the owner's consent from making, using, offering for sale, selling, importing for these purposes or exporting that product; and
(b) where the subject matter of a patent is a process, to prevent third parties not having the owner's consent from using the process, and from using, offering for sale, selling, importing for these purposes or exporting at least the product obtained directly by that process.
5. With respect to the patent which is granted for an invention related to pharmaceuticals or plant protection products, each Party shall, subject to the terms and conditions of its applicable laws and regulations, provide for a compensatory term of protection for any period during which the patented invention cannot be worked due to marketing approval process.
6. For the purposes of paragraph 5:
(a) "compensatory term of protection" means, for Japan, an extension of a term of patent protection and, for Switzerland, a term specified in a supplementary protection certificate;
(b) "marketing approval" means approval or any other disposition by the competent authorities that is intended to ensure the safety and, where applicable, efficacy of the pharmaceuticals or plant protection products as provided for in the relevant laws and regulations of each Party; and
(c) the length of the compensatory term of protection shall be:
(i) for Japan, equal to the length of extension which the patentee requests, provided that the compensatory term of protection shall not exceed either the length of time during which the patented invention cannot be worked due to marketing approval processes, or a maximum term as provided for in the laws and regulations of Japan. As of the date of entry into force of this Agreement, such maximum term is stipulated as being five years by the relevant law of Japan; and
(ii) for Switzerland, equal to the period which elapsed between the filing date of the patent application and the date of the marketing approval of the product, reduced by a period of five years. The maximum compensatory term shall be at least five years.

Article 118. New Varieties of Plants

Each Party shall provide the same level of protection for new varieties of all plant genera and species as provided under the 1991 UPOV Convention.

Article 119. Geographical Indications and Related Indications

1. Each Party shall ensure adequate and effective protection of geographical indications and related indications in accordance with this Article.
2. For the purposes of this Chapter:
(a) "geographical indications" means indications which identify a product as originating in a Party, or a region or locality in that Party, where a given quality, reputation or other characteristic of the product is essentially attributable to its geographical origin; and
(b) "related indications" means:
(i) indications in the designation or presentation of a service that contain or consist of the name of a geographical place of a Party (hereinafter referred to in this Article as "indications of services"); and
(ii) the country name of a Party, the name of a canton of Switzerland, armorial bearings, flags and other State or regional emblems.
3. (a) In respect of geographical indications, each Party shall provide the legal means for interested parties to prevent:
(i) the use of any elements in the designation or presentation of a product that indicate or suggest that the product in question originates in a geographical place other than the true place of origin in a manner which misleads the public as to the geographical origin of the product; (ii) any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention; and
(iii) any use of a geographical indication identifying wines for wines or identifying spirits for spirits not originating in the place indicated by the geographical indication in question. Note: Nothing in this Article shall be so construed as to derogate from any obligation of a Party under subparagraph (iii). The Parties may, with respect to subparagraph (iii), provide for enforcement by administrative action instead of judicial procedures.
(b) Each Party shall provide the legal means for interested parties to prevent the use of any indications of services in a manner, as prescribed in applicable laws and regulations of the Party, that misleads the public.
(c) Each Party shall provide the legal means for interested parties to prevent the use of the country name of either Party or the name of a canton of Switzerland for a product or service in a manner, as prescribed in applicable laws and regulations of the Party, that misleads the public.
(d) Each Party shall provide the legal means for interested parties to prevent the use of the geographical indication, the indications of services, the country name of either Party, or the name of a canton of Switzerland, even where the true origin of the products is indicated, or where they are used in translation or accompanied by terms such as "kind", "type", "style", "way", "imitation", "method" or other analogous expressions, if such use falls under subparagraphs (a) to (c). This subparagraph shall also apply to cases where a graphical symbol referring to a geographical place of a Party is used on a product or service in a manner, as prescribed in applicable laws and regulations of the Party, that misleads the public.
(e) (i) Each Party shall ensure that the registration of a trademark which contains or consists of a geographical indication, with respect to products not originating in the territory indicated, is refused or invalidated ex officio if the legislation of the Party so permits or at the request of an interested party, if the use of the indication in the trademark of such products in the Party corresponds to a situation referred to in subparagraph (a)(i), (a)(iii), or (d) insofar as subparagraph (a)(i) or (a)(iii) is applicable.
(ii) Each Party shall ensure that the registration of a trademark which contains or consists of an indication of service, the country name of either Party, or the name of a canton of Switzerland, the use of which corresponds to a situation referred to in subparagraph (b), (c), or (d) insofar as subparagraph (b) or (c) is applicable, is refused or invalidated ex officio if the legislation of the Party so permits or at the request of an interested party, where the trademark misleads the public in a manner as prescribed in the applicable laws and regulations of the Party.
(f) The protection afforded by this Article shall also apply in cases where products originating in a Party are destined for exportation.
(g) (i) Each Party shall, in accordance with its obligations under Article 6ter of the Paris Convention, ensure that armorial bearings, flags and other State emblems of the other Party are not used or registered as trademarks or as elements of trademarks.
(ii) Each Party reaffirms its obligations under paragraph 2 of Article 53 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949 which provides that the use by private individuals, societies or firms, of the arms of Switzerland, or of marks constituting an imitation thereof, whether as trademarks or commercial marks, or as parts of such marks, or for a purpose contrary to commercial honesty, or in circumstances capable of wounding Swiss national sentiment, shall be prohibited at all times.
(iii) Each Party shall ensure that armorial bearings, flags and other State or regional emblems of the other Party shall not be used in a manner, as prescribed in applicable laws and regulations of the Party, that misleads the public.
4. In proceedings by the relevant authorities of each Party, whether administrative or judicial, regarding the protection provided for in this Article, designations listed by a Party in Annex X shall serve, without prejudice to action or procedures by the relevant authorities of the other Party, as a source of information that these designations are protected by the former Party as geographical indications as provided for in this Article.
5. (a) The Parties shall, upon request of either Party, review in the Joint Committee Annex X with a view to updating the list by including in Annex X geographical indications which received protection by either Party at its national level. (b) Modifications proposed pursuant to subparagraph (a) shall be incorporated into this Agreement in accordance with paragraph 2 of Article 152.
6. Without prejudice to the rights and obligations set out in the international agreements to which both Parties are parties, paragraphs 3 to 9 of Article 24 of the TRIPS Agreement apply to the provisions of this Article in relation to geographical indications and, mutatis mutandis, to related indications.

Article 120. Unfair Competition

1. Each Party shall provide for effective protection against acts of unfair competition. 2. Any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition. The following acts of unfair competition, in particular, shall be prohibited: (a) all acts of such a nature as to create confusion by any means whatever with the establishment, the products, the services, or the industrial or commercial activities, of a competitor; (b) false allegations in the course of trade of such a nature as to discredit the establishment, the products, the services, or the industrial or commercial activities, of a competitor; (c) indications or allegations, the use of which in the course of trade is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose, or the quantity, of the products or the services, or the manufacturing process of the products; (d) acts of creating confusion with another person's products or business by: (i) using an indication of products or business which is identical or similar to that other person's indication of products or business which is well-known among consumers or other purchasers; or (ii) assigning, delivering, displaying for the purpose of assignment or delivery, exporting, importing or providing through an electric telecommunication line, products using such indication; (e) acts of using as one's own an indication of products or business which is identical or similar to another person's famous indication of products or business, or acts of assigning, delivering, displaying for the purpose of assignment or delivery, exporting, importing, or providing through an electric telecommunication line, products using such indication; (f) acts of assigning, leasing, displaying for the purpose of assignment or lease, exporting or importing products which imitate the configuration, excluding configuration which is indispensable for ensuring the function of the products, of another person's products; (g) acts of acquiring or holding a right to use domain names identical or similar to a specific indication of products or services of another person, or acts of using the domain name, with intention to gain unfair profit or intention of causing damage to another person; and (h) acts by an agent or representative of an owner of a right relating to a trademark, without a legitimate reason and the consent of the right-owner, of using a trademark identical or similar to the trademark for products or services identical or similar to those relating to such right; of using such trademark in assigning, delivering, displaying for the purpose of assignment or delivery, exporting, importing, or providing through an electric telecommunication line products which are identical or similar to the products relating to such right; or of using such trademark in providing services which are identical or similar to the services relating to such right. 3. For the purposes of this Article, "indication of products or business" means a name, trade name, trademark, mark, or container or package of products, used in relation to a person's business, or any other indication of a person's products or business. 4. Each Party shall ensure in its laws and regulations adequate and effective protection of undisclosed information in accordance with paragraph 2 of Article 39 of the TRIPS Agreement.

Article 121. Treatment of Test Data In Marketing Approval Procedure

1. Each Party shall prevent applicants for marketing approval for pharmaceutical products which utilise new chemical entities from relying on or from referring to test or other data submitted to its competent authority by the first applicant for a certain period of time counted from the date of approval of that application. As of the date of entry into force of this Agreement, such period of time is stipulated as being no less than six years by the relevant laws of each Party. 2. Each Party, when requiring, as a condition for approving the marketing of agricultural chemical products which utilise new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall ensure that, in accordance with its relevant laws and regulations, applicants for marketing approval are either: (a) prevented from relying on or from referring to such data submitted to its competent authority by the first applicant for a period of at least ten years counted from the date of approval of that application; or (b) required generally to submit a full set of test data, even in cases where there was a prior application for the same product, for a period, counted from the date of approval of a prior application, of at least ten years.

Article 122. Enforcement – General

Each Party shall endeavour to: (a) encourage the establishment of public and/or private advisory groups to address issues of counterfeiting and piracy; and (b) enhance internal coordination among, and facilitate joint actions by, its government agencies concerned with enforcement of intellectual property rights, subject to its available resources.

Article 123. Enforcement – Border Measures

1. Each Party shall provide for procedures concerning the suspension at the border by its customs authority, ex officio, of the release of products infringing rights at least to patents, utility models where provided for in its laws and regulations, industrial designs or trademarks, or copyrights or related rights which are destined for importation into, exportation from or transit through, the customs territory of the Party. 2. For the purposes of this Article: (a) "exportation" includes re-exportation; and (b) "transit" means transhipment and customs transit, as defined in the International Convention on the Simplification and Harmonization of Customs Procedures. 3. Each Party shall provide for procedures concerning the suspension at the border by its customs authority, upon request of a right holder, of the release of products infringing rights at least as referred to in paragraph 1, which are destined for importation into, exportation from and, where provided for in its laws and regulations, transit through, the customs territory of the Party. 4. In the case of the suspension pursuant to paragraphs 1 and 3 with respect to importation into, exportation from and, where provided for in the laws and regulations of a Party, transit through, the customs territory of the Party, the competent authorities of the Party suspending the release of the products shall notify the right holder of the name and addresses of the consignor or consignee, and the importer or exporter, as applicable, of the products in question. Such competent authorities shall notify the right holder of the names and addresses of the producer of the products in question, when they find that such information is indicated in the course of customs clearance procedures. 5. Each Party shall ensure that the products, the release of which has been suspended pursuant to paragraphs 1 and 3 and which have been found to be infringing products by the competent authorities, will not be released into free circulation without the consent of the right holder and will be destroyed in accordance with its laws and regulations. 6. Each Party shall ensure that right holders do not have to bear an unreasonable burden because of the fees and the cost of storage and destruction of the products the release of which has been suspended pursuant to paragraphs 1 and 3 and which have been found to be infringing products. 7. The competent authorities of each Party shall enable the right holder to analyse samples of the products the release of which has been suspended pursuant to paragraph 3, as appropriate and to the extent permitted by the laws and regulations of the Party, at the expense of the right holder. 8. Each Party shall adopt simplified procedures, which are to be used in the absence of objections and subject to the terms and conditions provided for in its laws and regulations, for the competent authorities to seize or destroy the products the release of which has been suspended.

Article 124. Enforcement – Civil Remedies

1. Each Party shall ensure that the right holder has the right to claim against the infringer damages adequate to compensate for the injury the right holder has suffered because of an infringement of his or her intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in the infringing activity. 2. For the purposes of this Article, "right holder" shall include holders of interests which are protected under the laws and regulations of each Party preventing acts of unfair competition. 3. Where the right holder claims against the infringer compensation for damages caused by an intentional or negligent infringement of his or her intellectual property rights, an amount calculated, taking into consideration such factors as the following, may be, where applicable, presumed to be the amount of such damages, whether or not actual damages can be calculated: (a) the quantity of the products infringing the right holder's intellectual property rights and actually transferred to third persons, and the amount of profit per unit of products which would have been sold by the right holder if there had not been the act of infringement; (b) the profits earned by the infringer from the act of infringement; or (c) the amount that the right holder would have been entitled to receive for the exercise of his or her intellectual property rights. 4. In cases where it is extremely difficult for the right holder of intellectual property rights to prove the actual economic harm due to the nature of facts concerned, each Party shall ensure that, to the extent possible in accordance with its laws and regulations, its judicial authorities have the authority to determine the amount of damages based on the totality of the evidence presented to them.

Article 125. Enforcement – Criminal Remedies

1. Each Party shall provide for criminal procedures and penalties to be applied at least in cases of the following acts committed wilfully and on a commercial scale: (a) infringement of rights to patents, utility models where provided for in its laws and regulations, industrial designs or trademarks, copyrights or related rights, or rights relating to new varieties of plants; (b) infringement of rights to layout-design of integrated circuits; (c) disclosure of undisclosed information provided for in paragraph 4 of Article 120 to the extent provided for in the laws and regulations of the Party; and (d) the acts of unfair competition provided for in subparagraphs 2(c) to 2(f) of Article 120 and the use of geographical indications and related indications as prescribed in subparagraphs 3(a)(i), 3(a)(ii), 3(b), 3(c), 3(d) insofar as subparagraph 3(a)(iii) is not applicable, 3(g)(i) and 3(g)(iii) of Article 119, to the extent provided for in the laws and regulations of the Party. 2. Importation, exportation or transit of products which constitutes an act referred to in subparagraph 1(a) or 1(d) shall be covered by the criminal procedures and penalties referred to in paragraph 1. Paragraph 2 of Article 123 shall apply to this paragraph. 3. Each Party shall provide for, where permitted by its laws and regulations, stricter or separate penalties to offences listed in subparagraphs 1(a), 1(b) and 1(d) committed in connection with corporate activities or on a commercial scale. 4. Each Party shall ensure that, in cases of infringement committed wilfully and on a commercial scale of rights to patents, utility models where provided in its laws and regulations, industrial designs, trademarks or new varieties of plants, or the acts of unfair competition provided for in subparagraphs 2(c) to 2(f) of Article 120 to the extent provided for in its laws and regulations committed wilfully and on a commercial scale, its competent authorities may institute prosecution ex officio, without the need for a formal complaint by the right holder whose right has been infringed. 5. Each Party shall ensure that, in cases where either (a) infringement of rights to patents or trademarks, or copyrights or related rights, or (b) offence of the customs laws in connection with the infringement of intellectual property rights, is committed by an organised criminal group, its judicial authorities have the authority to confiscate crime proceeds and properties derived from such crime proceeds in accordance with its laws and regulations. 6. Each Party shall provide for criminal penalties to be applied in cases of wilful import conducted on a commercial scale of labels on which a trademark has been applied that is identical to a trademark registered in the Party in respect of certain products, or that is similar to or cannot be distinguished in its essential aspects from such trademark, if such labels are intended to be used on the products for which such trademark is registered or on similar products.

Article 126. Internet Service Providers

1. For the purposes of encouraging Internet service providers to cooperate with right holders in protecting their rights against materials infringing intellectual property rights, each Party shall provide measures to prevent undue liabilities of Internet service providers for the removal of materials that they have put on their Internet websites under contracts with information senders where a right holder claims to the Internet service provider that such materials infringe his or her intellectual property rights, provided that the Internet service provider complies with the procedures to be followed by the parties concerned. 2. Each Party shall enable right holders, who have given effective notification to an Internet service provider of materials that they claim with valid reasons to be infringing their intellectual property rights, to expeditiously obtain from that Internet service provider information on the identity of the information sender.

Article 127. Cooperation

1. The Parties, recognising the growing importance of protection of intellectual property in further promoting trade and investment between them, in accordance with their respective laws and regulations and subject to their available resources, shall cooperate in the field of intellectual property, including by exchanging information on relations of the Parties with non-Parties on matters concerning intellectual property. 2. The Parties shall seek for cooperation on activities relating to future international conventions on harmonisation, administration and enforcement of intellectual property rights and on activities in international organisations including the World Trade Organization and the WIPO. 3. Chapter 14 shall not apply to this Article.

Article 128. Sub-committee on Intellectual Property

1. For the purposes of the effective implementation and operation of this Chapter, the Sub-Committee on Intellectual Property (hereinafter referred to in this Article as "the Sub- Committee) is hereby established. 2. The functions of the Sub-Committee shall be: (a) reviewing and monitoring the implementation and operation of this Chapter; (b) discussing any issues related to intellectual property with a view to enhancing protection of intellectual property and enforcement of intellectual property rights and to promoting efficient and transparent administration of intellectual property protection system; (c) reporting its findings and the outcome of its discussions to the Joint Committee; and (d) carrying out other tasks as may be assigned by the Joint Committee. 3. The Sub-Committee shall meet at such time and venue as may be agreed by the Parties. 4. The Sub-Committee shall be: (a) composed of representatives of the Governments of the Parties, and may invite representatives of relevant entities other than the Governments of the Parties, including those from private sectors, with the necessary expertise relevant to the issues to be discussed; and (b) co-chaired by officials of the Governments of the Parties.

Article 129. Security Exceptions

For the purposes of this Chapter, Article 73 of the TRIPS Agreement is hereby incorporated into and made part of this Agreement, mutatis mutandis.

Section CHAPTER 12. Government Procurement

Article 130. Existing Rights and Obligations

1. The rights and obligations of the Parties in respect of government procurement shall be governed by the Agreement on Government Procurement in Annex 4 to the WTO Agreement (hereinafter referred to as "the GPA"). 2. If the GPA is amended or is superseded by another agreement, "the GPA", for the purposes of this Chapter, shall refer to the GPA as amended or such other agreement, as of the date on which such amendment or other agreement enters into force for both Parties. 3. Chapter 14 shall not apply to this Article.

Article 131. Enquiry Points

Each Party hereby designates the following governmental authority as its enquiry point to facilitate communication between the Parties on any matter regarding government procurement: (a) for Japan, the Ministry of Foreign Affairs; and (b) for Switzerland, the State Secretariat for Economic Affairs.

Article 132. Further Negotiations

1. The Parties will consult in the Joint Committee with a view to increasing mutual understanding of their respective government procurement systems, effectively implementing them and further enhancing and expanding access to the government procurement market of each Party for the suppliers of the other Party. 2. In the event that, after the entry into force of this Agreement, a Party accords to a non-Party additional advantages of access to its government procurement market beyond those accorded to the other Party under the GPA, the former Party shall, upon request of the other Party, enter into negotiations with a view to extending those advantages to the other Party on a reciprocal basis.

Section CHAPTER 13. Promotion of a Closer Economic Relationship

Article 133. Basic Principles

1. The Parties, confirming their willingness to promote a closer economic relationship, shall, whenever the need arises, hold consultations in order to address issues concerning the promotion of trade and investment activities of their business sectors. 2. The Parties shall, in accordance with their respective laws and regulations, cooperate and take appropriate measures to promote a closer economic relationship between themselves for the benefit of their business sectors.

Article 134. Sub-committee on Promotion of a Closer Economic Relationship

1. For the purposes of the effective implementation and operation of this Chapter, the Parties hereby establish the Sub-Committee on Promotion of a Closer Economic Relationship (hereinafter referred to in this Article as "the Sub- Committee").
2. The functions of the Sub-Committee shall be:
(a) discussing ways and means to promote a closer economic relationship between the Parties;
(b) discussing possibilities to further remove obstacles to trade and investment between the Parties and to facilitate business activities in the Parties;
(c) discussing possibilities to cooperate at government and business sector levels in the field of bilateral trade and investment promotion activities;
(d) discussing other issues related to promotion of a closer economic relationship;
(e) reporting its findings, and making, as needed, recommendations on appropriate measures to be taken by the Parties, to the Joint Committee;
(f) reviewing, where appropriate, the implementation of the recommendations referred to in subparagraph (e); and
(g) carrying out other tasks assigned by the Joint Committee.
3. The Sub-Committee:
(a) shall be composed of government officials of the Parties;
(b) shall take all its actions by agreement between the Parties;
(c) may, upon agreement by the Parties, invite representatives of business sectors and other business-related organisations of the Parties with the necessary expertise related to the issues to be discussed; and
(d) shall be co-chaired by government officials of the Parties.
4. The Sub-Committee shall meet at such time and venue as may be agreed by the Parties.
5. The Sub-Committee shall cooperate with other relevant Sub-Committees with a view to avoiding unnecessary overlap with their work. The Joint Committee shall, if necessary, give instructions to this end.

Article 135. Contact Point

The contact point designated pursuant to Article 149 shall, in regard to the implementation of this Chapter, perform the functions as set forth in Chapter 4 of the Implementing Agreement.

Article 136. Non-application of Chapter 14

Chapter 14 shall not apply to this Chapter.

Section CHAPTER 14. Dispute Settlement

Article 137. General Provisions

The Parties shall at all times endeavour to reach a mutually satisfactory resolution of any matter concerning the interpretation and application of this Agreement through cooperation, expert consultations or other means provided for in this Agreement.

Article 138. Scope and Coverage

1. Unless otherwise provided for in this Agreement, this Chapter shall apply with respect to the settlement of disputes between the Parties concerning the interpretation or application of this Agreement.
2. Nothing in this Chapter shall prejudice any rights of the Parties to have recourse to dispute settlement procedures available under any other international agreement to which both Parties are parties.
3. Notwithstanding paragraph 2, once the complaining Party has requested the establishment of an arbitral tribunal under this Chapter or a panel under Article 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes in Annex 2 to the WTO Agreement with respect to a particular dispute, the arbitral tribunal or panel selected shall be used to the exclusion of the other procedure for that particular dispute.

Article 139. Consultations

1. A Party may request in writing consultations with the other Party if it considers that a measure applied by that other Party is inconsistent with this Agreement or that any benefit accruing to it directly or indirectly under this Agreement is impaired or nullified by such measure. The Party requesting consultations shall set out the reasons for the request, including identification of the measure at issue and an indication of the legal basis for the complaint.
2. When a Party requests consultations pursuant to paragraph 1, the other Party shall reply promptly and enter into consultations in good faith within 30 days after the date of receipt of the request, with a view to a prompt and satisfactory resolution of the matter. In case of a matter concerning perishable products, the other Party shall enter into consultations within 15 days after the date of receipt of the request.

Article 140. Good Offices, Conciliation or Mediation

1. Good offices, conciliation or mediation may be requested at any time by either Party. They may begin at any time if the Parties agree and, at the request of either Party, be terminated at any time.
2. If the Parties agree, good offices, conciliation or mediation may continue while procedures of the arbitral tribunal provided for in this Chapter are in progress.
3. Proceedings involving good offices, conciliation or mediation and positions taken by the Parties during these proceedings shall be confidential and without prejudice to the rights of either Party in any further proceedings.