(a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public procurement contract or the implementation of any decision taken by the contracting authority;
(b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the publication of intended or planned procurement, the contract documents or in any other document relating to the contract award procedure; and
(c) award damages to persons harmed by an infringement.
3. Inthe case of the review of an award decision, each Party shall ensure that the contracting authority cannot conclude the contract before the review body has made a decision on the application either for interim measures or for review. The suspension shall end no earlier than the expiry of the standstill period referred to in paragraph 6.
4. Each Party shall ensure that decisions taken by bodies responsible for review procedures can be effectively enforced.
5. Members of independent review bodies shall not be representatives of any contracting authorities.
With regard to bodies responsible for review procedures which are not judicial in character each Party shall ensure that:
(a) written reasons for their decisions are always be given;
(b) that any allegedly illegal measure taken by the independent review body or any alleged defect in the exercise of the powers conferred on it can be the subject of judicial review or review by another independent body which is a court or tribunal and independent of both the contracting authority and the review body;
(c) the members of such an independent body are appointed and leave office under the same conditions as members of the judiciary as regards the authority responsible for their appointment, their period of office, and their removal;
(d) at least the President of such an independent body has the same legal and professional qualifications as members of the judiciary; and
(e) the independent body takes its decisions following a procedure in which both sides are heard, and that these decisions are, by means determined by each Party, legally binding.
Standstill period
6. The contracting authority may not conclude a contract following the decision to award a contract falling within the scope of this Chapter before:
(a) the expiry of a standstill period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used; or
(b) before the expiry of a standstill period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision, if other means of communication are used. Alternatively, a Party may provide that the standstill period is triggered by the publication of the award decision in an electronic media free of charge, pursuant to Article XVI.2 WTO Government Procurement Agreement.
Tenderers shall be deemed to be concerned if they have not yet been definitively excluded. The exclusion is deemed definitive if it has been notified to the tenderers concerned and either has been considered lawful by an independent review body or can no longer be subject to a review procedure. Candidates shall be deemed to be concerned if the contracting authority has not made information about the rejection of their application available to the tenderers concerned prior to the notification of the contract award decision.
7. A Party may provide that the standstill periods referred to in points (a) and (b) of the first subparagraph of paragraph 6 do not apply in the following cases:
(a) if the only tenderer concerned within the meaning of the third subparagraph of paragraph 6 is the one who is awarded the contract and there are no other candidates concerned; (b) in the case of a contract based on a framework agreement; and
(c) in the case of a specific contract based on a dynamic purchasing system.
Ineffectiveness
8. Each Party shall ensure, if the contracting authority has awarded a contract without prior publication without this being permissible, that a contract is considered ineffective by a review body independent of the contracting authority or a judiciary body, or that its ineffectiveness is the result of a decision of such a body.
The law of each Party shall determine the consequences of a contract considered ineffective by providing for the retroactive cancellation of all contractual obligations or the cancellation of those obligations not yet performed. In the latter case, each Party shall provide for the application of other penalties.
9. A Party may provide that the review body or a judicial body may not consider a contract ineffective, even though the contract it has been awarded unlawfully, if the review body ora judicial body finds, after having examined all relevant aspects, that overriding reasons relating to a general interest require to maintain the effects of the contract. In that case, each Party shall provide for alternative penalties.
Non-discrimination of established companies
10. Each Party shall ensure that the suppliers of the other Party that have established a commercial presence in its territory through the establishment, acquisition or maintenance of a juridical person are accorded national treatment with regard to any public procurement of the Party in its territory. This obligation applies irrespectively of whether or not the procurement is covered by the Parties' Annexes to Appendix I to the WTO Government Procurement Agreement or by Annex XI of this Agreement.
The general exceptions provided for in Article III of the WTO Government Procurement Agreement apply.
Chapter 9. Trade and Sustainable Development
Article 272. Objectives and Scope
1. The Parties recall Agenda 21 of the UN Conference on Environment and Development of 1992, the ILO Declaration on Fundamental Principles and Rights at Work of 1998, the Johannesburg Plan of Implementation on Sustainable Development of 2002, the Ministerial Declaration of the UN Economic and Social Council entitled "Creating an environment at the national and international levels conducive to generating full and productive employment and decent work for all, and its impact on sustainable development" of 2006, the ILO Declaration on Social Justice for a Fair Globalization of 2008, the Outcome Document of the UN Conference on Sustainable Development of 2012 entitled "The Future We Want" and the UN 2030 Agenda for Sustainable Development entitled "Transforming Our World: the 2030 Agenda for Sustainable Development" adopted in 2015. The Parties reaffirm their commitment to promote the development of international trade in such a way as to contribute to the objective of sustainable development, for the welfare of present and future generations, and to ensure that that objective is integrated and reflected at every level of their trade relationship.
2. The Parties reaffirm their commitment to pursue sustainable development, the pillars of which — economic development, social development and environmental protection — are interdependent and mutually reinforcing. They underline the benefit of considering trade-related labour and environmental issues as part of a global approach to trade and sustainable development.
3. When "labour" is referred to in this Chapter, it includes the issues relevant to the strategic objectives of the ILO, through which the Decent Work Agenda is expressed, as agreed on in the ILO Declaration on Social Justice for a Fair Globalization of 2008.
Article 273. Right to Regulate and Levels of Protection
Recognising the right of each Party to determine its sustainable development policies and priorities, to establish its own levels of domestic environmental and labour protection, and to adopt or modify accordingly its relevant laws and policies, in a manner consistent with its commitment to the internationally recognised standards and agreements referred to in Articles 274 and 275, each Party shall strive to ensure that its laws and policies provide for and encourage high levels of environmental and labour protection and shall strive to continue to improve those laws and policies and their underlying levels of protection.
Article 274. International Labour Standards and Agreements
1. The Parties recognise full and productive employment and decent work for all as key elements for managing globalization, and reaffirm their commitment to promote the development of international trade in a way that is conducive to full and productive employment and decent work for all. In that context, the Parties commit to consult and co-operate with each other, as appropriate, on trade-related labour issues of mutual interest.
2. In accordance with their obligations as members of the ILO and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up of 1998, the Parties commit to respect, promote and realise in their laws and practices and in their whole territory the internationally recognised core labour standards, as embodied in the fundamental ILO conventions and the protocols to those conventions, and in particular:
(a) the freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour; and
(d) the elimination of discrimination in respect of employment and occupation.
3. The Parties reaffirm their commitment to effectively implement in their laws and practices the fundamental, priority and other ILO conventions, as well as the protocols to those conventions, that have been ratified by the Member States and the Republic of Armenia respectively.
4. The Parties shall also consider the ratification of the remaining priority and other conventions that are classified as up-to-date by the ILO. In that context, the Parties shall regularly exchange information on their respective situations and progress in the ratification process.
5. The Parties recognise that the violation of fundamental principles and rights at work cannot be invoked or otherwise used as a legitimate comparative advantage and that labour standards are not to be used for protectionist trade purposes.
Article 275. International Environmental Governance and Agreements
1. The Parties recognise the value of international environmental governance and agreements as a response of the international community to global or regional environmental problems and stress the need to enhance the mutual supportiveness between trade and environment. In that context, the Parties commit to consult and cooperate as appropriate with respect to negotiations on trade-related environmental issues and other trade-related environmental matters of mutual interest.
2. The Parties reaffirm their commitment to effectively implement in their laws and practices the multilateral environmental agreements ("MEAs") to which they are party.
3. The Parties shall regularly exchange information on their respective situations and progress as regards the ratification of MEAs or amendments to such agreements.
4. The Parties reaffirm their commitment to implementing and reaching the objectives of the United Nations Framework Convention on Climate Change of 1992 (UNFCCC), the Kyoto Protocol thereto of 1998 and the Paris Agreement of 2015. They commit to work together to strengthen the multilateral, rules-based regime under the UNFCCC and to cooperate on the further development and implementation_of the international climate-change framework under the UNFCCC and agreements and decisions related thereto.
5. Nothing in this Agreement shall prevent Parties from adopting or maintaining measures to implement the MEAs to which they are party, provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties or a disguised restriction on trade.
Article 276. Trade and Investment Favouring Sustainable Development
The Parties confirm their commitment to enhance the contribution of trade to the goal of sustainable development in its economic, social and environmental dimensions. To that end, the Parties:
(a) recognise the beneficial role that core labour standards and decent work can have on economic efficiency, innovation and productivity, and shall seek greater policy coherence between trade and labour policies;
(b) shall strive to facilitate and promote trade and investment in environmental goods and services, including through addressing related non-tariff barriers;
(c) shall strive to facilitate the removal of obstacles to trade or investment concerning goods and services of particular relevance for climate-change mitigation and adaptation, such as sustainable renewable energy and energy-efficient products and services, including through:
(i) the adoption of policy frameworks conducive to the deployment of best available technologies;
(ii) the promotion of standards that respond to environmental and economic needs; and
(iii) the minimisation of technical obstacles to trade;
(d) agree to promote trade in goods that contribute to enhanced social conditions and environmentally sound practices, including goods that are the subject of voluntary sustainability assurance schemes such as fair and ethical trade schemes and eco-labels; and
(e) agree to promote corporate social responsibility, including through the exchange of information and best practices. In that regard, the Parties refer to the relevant internationally recognised principles and guidelines, such as the OECD Guidelines for Multinational Enterprises, the UN Global Compact and the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy of 1977.
Article 277. Biological Diversity
1. The Parties recognise the importance of ensuring the conservation and sustainable use of biological diversity as a key element for the achievement of sustainable development, and reaffirm their commitment to conserve and sustainably use biological diversity, in accordance with the Convention on Biological Diversity of 1992 and the ratified Protocols thereto, the Strategic Plan for Biodiversity, the Convention on International Trade in Endangered Species of Wild Fauna and Flora of 1973 (CITES) and other relevant international instruments to which they are party.
2. To that end, the Parties shall:
(a) promote the sustainable use of natural resources and contribute to the conservation of biodiversity when undertaking trade activities;
(b) exchange information on actions on trade in natural resource-based products aimed at halting the loss of biological diversity and reducing pressures on biodiversity, and, where relevant, cooperate to maximise the impact and ensure the mutual supportiveness of their respective policies;
(c) promote the inclusion in the Appendices to CITES of species which meet the CITES criteria agreed for such inclusion;
(d) adopt and implement effective measures against illegal trade in wildlife products, including CITES protected species, and cooperate in the fight against that illegal trade;
(e) cooperate at the regional and global levels with the aim of promoting:
(i) the conservation and sustainable use of biological diversity in natural or agricultural ecosystems, including endangered species, their habitat, specially protected natural areas and genetic diversity;
(ii) the restoration of ecosystems and the elimination or reduction of negative environmental impacts resulting from the use of living and non-living natural resources or of ecosystems; and
(iii) access to genetic resources and the fair and equitable sharing of benefits arising from the utilisation of such resources.
Article 278. Sustainable Management of Forests and Trade In Forest Products
1. The Parties recognise the importance of ensuring the conservation and sustainable management of forests and the contribution of forests to the Parties' economic, environmental and social objectives.
2. To that end, the Parties shall:
(a) promote trade in forest products derived from sustainably managed forests, harvested in accordance with the domestic legislation of the country of harvest;
(b) exchange information on measures to promote consumption of timber and timber products from sustainably managed forests and, where relevant, cooperate to develop such measures;
(c) adopt measures to promote the conservation of forest cover and combat illegal logging and related trade, including with respect to third countries, as appropriate; exchange information on actions to improve forest governance and, where relevant, cooperate to maximise the impact and ensure the mutual supportiveness of their respective policies aiming at excluding illegally harvested timber and timber products from trade flows;
(d) promote the inclusion in the Appendices to the CITES of timber species which meet the CITES criteria agreed for such inclusion; and
(e) cooperate at the regional and global levels with the aim of promoting the conservation of forest cover and the sustainable management of all types of forests, with use of certification promoting responsible management of the forests.
Article 279. Trade and Sustainable Management of Living Marine Resources
The Parties, taking into account the importance of ensuring responsible management of fish stocks in a sustainable manner as well as promoting good governance in trade, shall:
(a) promote best practices in fisheries management with a view to ensuring the conservation and management of fish stocks in a sustainable manner, based on the ecosystem approach;
(b) take effective measures to monitor and control fishing activities;
(c) promote coordinated data collection schemes and bilateral scientific cooperation in order to improve current scientific advice for fisheries management;
(d) cooperate in the fight against illegal, unreported and unregulated ([UU) fishing and fishing-related activities with comprehensive, effective and transparent measures; and
(e) implement policies and measures to exclude IUU products from trade flows and their markets, in accordance with the International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing of the Food and Agriculture Organization of the United Nations (FAO).
Article 280. Upholding Levels of Protection
1. The Parties recognise that it is inappropriate to encourage trade or investment by lowering the levels of protection afforded in domestic environmental or labour laws.
2. A Party shall not waive or derogate from, or offer to waive or derogate from, its environmental or labour laws as an encouragement for trade or the establishment, acquisition, expansion or retention of an investment or an investor in its territory.
3. A Party shall not, through a sustained or recurring course of action or inaction, fail to effectively enforce its environmental and labour laws as an encouragement for trade or investment.
Article 281. Scientific Information
When preparing and implementing measures aimed at protecting the environment or labour conditions that could affect trade or investment between the Parties, each Party shall take account of available scientific and technical information, as well as relevant international standards, guidelines and recommendations if they exist, including the precautionary principle.
Article 282. Transparency
Each Party, in accordance with its domestic laws and regulations and Chapter 12, shall ensure that any measures aimed at protecting the environment and labour conditions that could affect trade or investment are developed, introduced and implemented in a transparent manner, with due notice and public consultation, and with appropriate and timely communication to and consultation of non-State actors.
Article 283. Review of Sustainability Impacts
The Parties commit to review, monitor and assess the impact of the implementation of this Agreement on sustainable development through their respective participative processes and institutions, as well as those set up under this Agreement, for instance through trade-related sustainability impact assessments.
Article 284. Working Together on Trade and Sustainable Development
1. The Parties recognise the importance of working together on trade-related aspects of environmental and labour policies in order to achieve the objectives of this Agreement. They may cooperate in, inter alia, the following areas:
(a) labour or environmental aspects of trade and sustainable development in the framework of international fora, including, in particular, the WTO, the ILO, the United Nations Environment Programme (UN Environment), the United Nations Development Programme and MEAs;
(b) methodologies and indicators for trade sustainability impact assessments;
(c) the trade impact of labour and environment regulations, norms and standards, as well as the labour and environmental impacts of trade and investment rules, including on the development of labour and environmental regulations and policy;
(d) the positive and negative impacts of this Agreement on sustainable development and ways to enhance, prevent or mitigate them, also taking into account sustainability impact assessments carried out by either or both of the Parties;
(e) promoting the ratification and effective implementation of fundamental, priority and other up-to-date ILO conventions, and the protocols to those conventions, as well as MEAs of relevance in a trade context;
(f) promoting private and public certification, traceability and labelling schemes, including eco-labelling;
(g) promoting corporate social responsibility, for instance through actions concerning raising awareness of, adherence to, the implementation of and follow-up to internationally recognised guidelines and principles;
(h) trade-related aspects of the ILO Decent Work Agenda, including on the interlinkages between trade and full and productive employment, labour-market adjustment, core labour standards, effective remedy systems (including labour inspectorates) for upholding labour rights, labour statistics, human-resource development and lifelong learning, social protection and social inclusion, social dialogue and gender equality;
(i) trade-related aspects of MEAs, including customs cooperation;
(j) trade-related aspects of the current and future international climate-change regime, including means to promote low-carbon technologies and energy efficiency;
(k) trade-related measures to promote the conservation and sustainable use of biological diversity, including combating illegal trade in wildlife products;
(l) trade-related measures to promote the conservation and sustainable management of forests, thereby reducing deforestation, including with regard to illegal logging; and
(m) trade-related measures to promote sustainable fishing practices and trade in sustainably managed fish products.
2. The Parties shall exchange information and share experience on their actions to promote coherence and mutual supportiveness between trade, social and environmental objectives. Furthermore, the Parties shall enhance their cooperation and dialogue with regard to sustainable development issues that arise in the context of their trade relations.
3. Such cooperation and dialogue shall involve relevant stakeholders, in particular social partners, as well as other civil-society organisations, in particular through the Civil Society Platform established under Article 366.
4. The Partnership Committee may adopt rules for such cooperation and dialogue.
Article 285. Dispute Settlement
Subsection II of Section 3 of Chapter 13 of this Title shall not apply to disputes under this Chapter. For any such dispute, after the arbitration panel has delivered its final report pursuant to Articles 325 and 326, the Parties, taking that report into account, shall discuss suitable measures tobe implemented. The Partnership Committee shall monitor the implementation of any such measures and shall keep the matter under review, including through the mechanism referred to in Article 284 paragraph 3.
Chapter 10. Competition
Section A.
Article 286. Principles
The Parties recognise the importance of free and undistorted competition in their trade and investment relations. The Parties acknowledge that anti-competitive business practices and Stateinterventions have the potential to distort the proper functioning of markets and undermine the benefits of trade liberalisation.
Section B. Antitrust and Mergers
Article 287. Legislative Framework
1. Each Party shall adopt or maintain its respective law which applies to all sectors of the economy (1) and addresses all of the following practices in an effective manner:
(a) horizontal and vertical agreements between enterprises, decisions by associations of enterprises and concerted practices which have as their object or effect the prevention, restriction or distortion of competition,
(b) abuses by one or more enterprises of a dominant position,
(c) concentrations between enterprises which significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position. (1)
For the purposes of this Chapter, this law will be referred to hereafter as "competition law" (1).
2. All enterprises, private or public, shall be subject to the competition law referred to in paragraph 1. The application of the competition law shall not obstruct the performance, in law or in fact, of particular tasks of public interest that may be assigned to the enterprises in question. Exemptions from the competition law of a Party shall be limited to tasks of public interest, proportionate to the desired public-policy objective and transparent.
Article 288. Implementation
1. Each Party shall maintain operationally independent authorities responsible for and appropriately equipped with the powers and resources necessary for the full application and the effective enforcement of the competition law referred to in Article 287.
2. The Parties shall apply their respective competition law in a transparent and non- discriminatory manner, respecting the principles of procedural fairness and rights of defence of the enterprises concerned, irrespective of their nationality or ownership status.
Article 289. Cooperation
1. In order to fulfil the objectives of this Agreement and to enhance effective competition enforcement, the Parties acknowledge that it is in their common interest to strengthen cooperation with regard to the development of competition policy and the investigation of antitrust and merger cases.
2. For that purpose, the competition authorities of the Parties shall endeavour to coordinate, where possible and appropriate, their enforcement activities with regard to the same or related cases.
3. To facilitate the cooperation referred to in paragraph 1, the Parties' competition authorities may exchange information.
Section C. Subsidies
Article 290. Principles
The Parties agree that subsidies can be granted by a Party when they are necessary to achieve a public policy objective. The Parties acknowledge, however, that certain subsidies have the potential to distort the proper functioning of markets and undermine the benefits of trade liberalisation. In principle, a Party shall not grant subsidies to enterprises providing goods or services where such subsidies negatively affect-competition-or trade, or are likely to do so.
Article 291. Definition and Scope
1. For the purposes of this Chapter, a subsidy is a measure which fulfils the conditions set out in Article 1.1 of the Agreement on Subsidies and Countervailing Measures, contained in Annex 1A to the WTO Agreement ("the SCM Agreement"), irrespective of whether it is granted to an enterprise supplying goods or services.
Subparagraph 1 does not prejudice the outcome of future discussions in the WTO on the definition of subsidies for services. Depending on the progress of those discussions at WTO level, the Parties may adopt a decision in the Partnership Committee to update this Agreement in that respect.
2. A subsidy shall be subject to this Chapter only if that subsidy is determined to be specific in accordance with Article 2 of the SCM Agreement. Any subsidy falling under Article 295 of this Agreement shall be deemed to be specific.
3. Subsidies granted to all enterprises, including public and private enterprises, shall be subject to this Chapter. The application of the rules in this Section shall not obstruct the performance, in law or in fact, of particular services of public interest assigned to the enterprises in question. Exemptions from application of the rules in this Section shall be limited to tasks of public interest, proportionate to public-policy objectives assigned to them and transparent.
4. Article 294 of this Agreement shall not apply to subsidies related to trade in goods covered by the Agreement on Agriculture, contained in Annex 1A to the WTO Agreement, ("the Agreement on Agriculture").
5. Articles 294 and 295 shall not apply to audio-visual sector.
Article 292. Relationship with the Wto
The provisions in this Chapter are without prejudice to the rights and obligations of each Partyunder Article XV of GATS, Article XVI of GATT 1994, the SCM Agreement and the Agreement on Agriculture.