to the extent that such reservations are inconsistent with Article 4.3 (National Treatment).
2. A Party may, at any time, either upon request of another Party or unilaterally, remove in whole or in part its reservations set out in Annex XV (List of Reservations) by written notification to the other Parties.
3. A Party may, at any time, incorporate a new reservation into Annex XV (List of Reservations) in accordance with subparagraph 1 (c), by written notification to the other Parties. On receiving such written notification, another Party may request consultations regarding the reservation. On receiving the request for consultations, the Party incorporating the new reservation shall enter into consultations with the requesting Party.
Article 4.5. Key Personnel
1. Each Party shall, subject to its domestic laws and regulations, grant natural persons of another Party, and key personnel who are employed by natural or juridical persons of another Party, entry and temporary stay in its territory in order to engage in activities connected with commercial presence, including the provision of advice or key technical services.
2. Each Party shall, subject to its domestic laws and regulations, permit natural or juridical persons of another Party, and their commercial presence, to employ, in connection with commercial presence, any key personnel of the natural or juridical person's choice regardless of nationality and citizenship provided that such key personnel has been permitted to enter, stay and work in its territory and that the employment concerned conforms to the terms, conditions and time limits of the permission granted to such key personnel.
3. Each Party shall, subject to its domestic laws and regulations, grant entry and temporary stay and provide any necessary confirming documentation to the spouse and minor children of a natural person who has been granted temporary entry, stay and authorisation to work in accordance with paragraphs 1 and 2. The spouse and minor children shall be admitted for the period of the stay of that person.
Article 4.6. Right to Regulate
1. Subject to the provisions of this Chapter, a Party may, on a non-discriminatory basis, adopt, maintain or enforce any measure that is in the public interest, such as measures to meet health, safety or environmental concerns or reasonable measures for prudential purposes.
2. A Party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion or retention in its territory of a commercial presence of persons of another Party or a non-party.
Article 4.7. Transparency
1. Laws, regulations, judicial decisions and administrative rulings of general application made effective by a Party, and agreements in force between the Parties, which affect matters covered by this Chapter shall be published promptly, or otherwise made publicly available, in such a manner as to enable the Parties and their juridical and natural persons to become acquainted with them.
2. Nothing in this Article shall require a Party to disclose confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or would prejudice the legitimate commercial interests of any juridical or natural person.
Article 4.8. Payments and Transfers
1. Except under the circumstances envisaged in Article 4.9 (Restrictions to Safeguard the Balance-of-Payments), no Party shall apply restrictions on current payments and capital movements relating to commercial presence activities in non- services sectors.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties under the Agreement of the IMF, including the use of exchange actions, which are in conformity with that Agreement, provided that a Party shall not impose restrictions on capital transactions inconsistent with its obligations under this Chapter.
Article 4.9. Restrictions to Safeguard the Balance of Payments
1. The Parties shall endeavour to avoid the imposition of restrictions to safeguard the balance of payments.
2. Paragraphs 1 to 3 of Article XII of the GATS apply and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
3. A Party adopting or maintaining such restrictions shall promptly notify the Joint Committee.
Article 4.10. General Exceptions
Article XIV of the GATS and the chapeau and subparagraph (g) of Article XX of the GATT 1994 apply and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 4.11. Security Exceptions
Paragraph 1 of Article XIVbis of the GATS applies and is hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 4.12. Review
This Chapter shall be subject to periodic review by the Joint Committee with a view to further developing the Partiesâ commitments.
Chapter 5. PROTECTION OF INTELLECTUAL PROPERTY
Article 5.1. Protection of Intellectual Property (12)
1. The Parties shall grant and ensure adequate, effective and non-discriminatory protection of intellectual property rights, and provide for measures for the enforcement of such rights against infringement thereof, including counterfeiting and piracy, in accordance with the provisions of this Chapter and Annex XVI (Protection of Intellectual Property), and the international agreements referred to therein.
2. The Parties shall accord to each other's nationals treatment no less favourable than that they accord to their own nationals. Exemptions from this obligation must be in accordance with the substantive provisions of Articles 3 and 5 of the TRIPS Agreement.
3. The Parties shall grant to each other's nationals treatment no less favourable than that accorded to nationals of a non-party. If a Party concludes a trade agreement containing provisions on the protection of intellectual property rights with a non-party, notified under Article XXIV of the GATT 1994, it shall notify the other Parties without delay and accord to them treatment no less favourable than that provided under such agreement. The Party concluding such an agreement shall, upon request by another Party, negotiate the incorporation of provisions of the agreement granting a treatment no less favourable than that provided under that agreement into this Agreement. Exemptions from this obligation must be in accordance with the substantive provisions of the TRIPS Agreement, in particular Articles 4 and 5.
4. Upon request of a Party, the Joint Committee shall review the provisions on the protection of intellectual property rights contained in this Chapter and in Annex XVI (Protection of Intellectual Property), with a view to further improving the levels of protection and to avoiding or remedying trade distortions caused by actual levels of protection of intellectual property rights.
Chapter 6. GOVERNMENT PROCUREMENT
Article 6.1. Scope and Coverage
1. This Chapter applies to any measure of a Party regarding covered procurement. For the purposes of this Chapter, "covered procurement" means procurement for governmental purposes:
(a) of goods, services, or any combination thereof:
(i) as specified in each Party's Appendices to Annex XVII (Government Procurement); and
(ii) not procured with a view to commercial sale or resale, or for use in the production or supply of goods or services for commercial sale or resale;
(b) by any contractual means, including purchase, lease, rental or hire purchase, with or without an option to buy and public works concessions;
(c) for which the value, as estimated in accordance with the rules specified in Appendix 9 to Annex XVII (Government Procurement) equals or exceeds the relevant threshold specified in Appendices 1 to 3 to Annex XVII (Government Procurement) at the time of publication of a notice in accordance with Article 6.10 (Notices);
(d) by a procuring entity; and
(e) which is not otherwise excluded pursuant to paragraph 2 or Annex XVII (Government Procurement).
2. This Chapter shall not apply to:
(a) acquisition or rental of land, existing buildings, or other immovable property or the rights thereon;
(b) non-contractual agreements or any form of assistance that a Party provides, including cooperative agreements, grants, loans, equity infusions, guarantees and fiscal incentives;
(c) procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions or
(d) services related to sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities; (13)
(e) public employment contracts and related measures; procurement conducted:
(i) for the specific purpose of providing international assistance, including development aid;
(ii) under a particular procedure or condition of an agreement relating to:
(aa) the stationing of troops; or
(bb) the joint implementation of a project by the signatory countries to such agreement;
(iii) under a particular procedure or condition:
(aa) of an international organisation; or
(bb) funded by international grants, loans or other assistance; where the applicable procedure or condition would be inconsistent with this Chapter.
Article 6.2. Definitions
For the purposes of this Chapter:
(a) "commercial goods or services" means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes;
(b) "construction service" means a service that has as its objective the realisation by whatever means of civil or building works, based on Division 51 of the United Nations Provisional. Central Product Classification (CPC);
(c) "days" means calendar days;
(d) "electronic auction" means an iterative process s that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tenders;
(e) "in writing or written" means any worded or numbered expression that can be read, reproduced, and later communicated, including electronically transmitted and stored information;
(f) "limited tendering" means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
(g) "measure" means any law, regulation, procedure, administrative guidance or practice, or any action of a procuring entity relating to a covered procurement;
(h) "multi-use list" means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;
(i) "notice of intended procurement" means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;
(j) "notice of planned procurement" means a notice published by a procuring entity regarding its future procurement plans;
(k) "offset" means any condition or undertaking that encourages local development or improves a Party's balance-of-payments accounts, such as the use of domestic content, the licensing of technology, investment, counter-trade, and similar actions or requirements;
(l) "open tendering" means a procurement method where all interested suppliers may submit a tender;
(m) "person" means a natural person or a juridical person;
(n) "procuring entity" means an entity covered under Appendices 1 to 3 to Annex XVII (Government Procurement);
(o) "qualified supplier" means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
(p) "selective tendering" means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
(q) "services" includes construction services, unless otherwise specified;
(r) "standard" means a document approved by a recognised body, that provides for common and repeated use, rules, guidelines, or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking, or labelling requirements as they apply to a good, service, process, or production method;
(s) "supplier" means a person or group of persons that provides or could provide goods or services;
(t) "technical specification" means a tendering requirement that:
(i) lays down the characteristics of goods or services to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
(ii) addresses terminology, symbols, packaging, marking, or labelling requirements, as they apply to a good or service.
(u) "public works concessions" means a contract of the same type as construction services contracts, except for the fact that the remuneration for the works to be carried out consists either solely in the right to exploit the construction or in this right together with a payment; and
(v) "conditions for participation" means any registration, qualification or other pre-requisites for participation in a procurement.
Article 6.3. Security and General Exceptions
1. Nothing in this Chapter shall be construed to prevent a Party from taking any action or not disclosing any information that it considers necessary for the protection of its essential security interests relating to the procurement of arms, ammunition, or war materials, or to procurement indispensable for national security or for national defence purposes.
2. Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties where the same conditions prevail or a disguised restriction on trade between the Parties, nothing in this Chapter shall be construed to prevent a Party from imposing maintaining or enforcing measures:
(a) necessary to protect public morals, order or safety;
(b) necessary to protect human, animal or plant life or health;
(c) necessary to protect intellectual property; or
(d) relating to goods or services of persons with disabilities, philanthropic institutions, or prison labour.
3. Subparagraph 2(b) includes environmental measures such as measures for the conservation of natural resources, necessary to protect human, animal, or plant life or health.
Article 6.4. National Treatment and Non-Discrimination
1. With respect to any measure regarding covered procurement, each Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of another Party and to the suppliers of another Party offering such goods or services, treatment no less favourable than the treatment accorded to domestic goods, services and suppliers.
2. With respect to any measure regarding covered procurement, no Party, including its procuring entities, shall:
(a) treat a locally established supplier less favourably than another locally established supplier on the basis of degree of foreign affiliation or ownership; or
(b) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of another Party.
Article 6.5. Use of Electronic Means
1. The Parties shall, to the extent possible, endeavour to use electronic means of communication to permit efficient dissemination of information on government procurement, particularly as regards tender opportunities offered by entities, while respecting the principles of transparency and non-discrimination.
2. When conducting covered procurement by electronic means, a procuring entity shall:
(a) ensure that the procurement is conducted using information technology systems and software, including those related to authentication and encryption of information, that are generally available and interoperable with other generally available information technology systems and software; and
(b) maintain mechanisms that ensure the integrity of requests for participation and tenders, including establishment of the time of receipt and the prevention of inappropriate access.
Article 6.6. Conduct of Procurement
A procuring entity shall conduct covered procurement in a transparent and impartial manner that:
(a) is consistent with this Chapter, using methods such as open tendering, selective tendering, and limited tendering;
(b) avoids conflicts of interest; and
(c) prevents corrupt practices.
Article 6.7. Rules of Origin
For the purposes of covered procurement, a Party may not apply rules of origin to goods or services imported from or supplied by another Party which are different from the rules of origin the Party applies at the same time in the normal course of trade to imports and supplies of the same goods and services from the same Party.
Article 6.8. Offsets
With regard to covered procurement, a Party, including its procuring entities, shall not seek, take account of, impose or enforce any offset.
Article 6.9. Information on the Procurement System
1. Each Party shall promptly publish any measure of general application regarding covered procurement and any modification to this information, in an officially designated electronic or paper medium that is widely disseminated and remains readily accessible to the public.
2. Each Party shall, on request, provide to another Party an explanation relating to such information.
Article 6.10. Notices
1. For each covered procurement, a procuring entity shall publish a notice of intended procurement, except in the circumstances referred to in Article 6.19 (Limited Tendering). The notice shall be published in the electronic or paper medium listed in Appendix 7 to Annex XVII (Government Procurement). Such medium shall be widely disseminated and the notice shall remain accessible, at least, until expiration of the time period indicated in the notice. The notice shall:
(a) for procuring entities covered under Appendix 1 to Annex XVII (Government Procurement), be accessible by electronic means free of charge through a single point of access; and
(b) for procuring entities covered under Appendices 2 or 3 to Annex XVII (Government Procurement), where accessibly by electronic means, be provided, at least through links in a gateway electronic site that is accessible free of charge.
2. Parties, including such procuring entities covered under Appendices 2 or 3 to Annex XVII (Government Procurement), are encouraged to publish their notices by electronic means free of charge through a single point of access.
3. Except as otherwise provided in this Chapter, each notice of intended procurement shall include the information specified in Appendix 10 to Annex XVII (Government Procurement).
4. Each Party shall encourage its procuring entities to publish in the medium listed in Appendix 7 to Annex XVII (Government Procurement), as early as possible in each fiscal year, a notice regarding their future procurement plans. The notice of planned procurement should include the subject matter of the procurement and the planned date of the publication of the notice of intended procurement.
5. A procuring entity covered under Appendices 2 or 3 to Annex XVII (Government Procurement) may use a notice of planned procurement as a notice of intended procurement, provided that the notice of planned procurement includes as much of the information referred to in paragraph 3 as is available to the entity and a statement that interested suppliers should express their interest in the procurement to the procuring entity.
Article 6.11. Conditions for Participation
1. In establishing the conditions for participation and assessing whether a supplier satisfies such conditions, a Party, including its procuring entities:
(a) shall limit any conditions for participation in a procurement to those that are essential to ensure that a supplier has the legal and financial capacities and the commercial and technical abilities to undertake the relevant procurement;
(b) shall evaluate the financial capacity and the commercial and technical abilities of a supplier on the basis of that supplierâs business activities both inside and outside the territory of the Party of the procuring entity;
(c) shall base its evaluation solely on the conditions that the procuring entity has specified in advance in notices or tender documentation;
(d) shall not impose the condition that, in order for a supplier to participate in a procurement, the supplier has previously been awarded one or more contracts by a procuring entity of a given Party; and
(e) may require relevant prior experience where essential to meet the requirements of the procurement.
2. Where there is supporting evidence, a Party, including its procuring entities, may exclude a supplier on grounds such as:
(a) bankruptcy;
(b) false declarations;
(c) significant or persistent deficiencies in performance of any substantive requirement or obligation under a prior contract or contracts;
(d) final judgments in respect of serious crimes or other serious offences;
(e) professional misconduct or acts or omissions that adversely reflect upon the commercial integrity of the supplier; or
(f) failure to pay taxes.
Article 6.12. Registration Systems and Qualification Procedures
1. A Party, including its procuring entities, may maintain a supplier registration system under which interested suppliers are required to register and provide certain information.
2. A Party, including its procuring entities, shall not adopt or apply any registration system or qualification procedure creating unnecessary obstacles to the participation of suppliers of another Party in its procurement.
3. Where a procuring entity intends to use selective tendering, it shall allow all qualified suppliers to participate in a particular procurement, unless the procuring entity states in the notice of intended procurement any limitation on the number of suppliers that will be permitted to tender and the criteria for selecting the limited number of suppliers.
Article 6.13. Information on Procuring Entity Decisions
1. A procuring entity shall promptly inform any supplier that submits a request for participation in a procurement or application for inclusion on a multi-use list of its decision with respect to the request.
2. Where a procuring entity rejects a supplier's request for participation in a procurement or application for inclusion on a multi-use list, ceases to recognise a supplier as qualified, or removes a supplier from a multi-use list, that entity shall promptly inform the supplier and, upon request of the supplier, promptly provide the supplier with a written explanation of the reasons for its decision.
Article 6.14. Multi-Use Lists
1. A procuring entity may maintain a multi-use list of suppliers, provided that a notice inviting interested suppliers to apply for inclusion on the list is published annually in the appropriate medium listed in Appendix 7 to Annex XVII (Government Procurement), and where published by electronic means, made available continuously in the electronic medium listed in Appendix 7 to Annex XVII (Government Procurement). Where a multi-use list will be valid for three years or less, a procuring entity may publish the notice only once, at the beginning of the period of validity of the list.
2. The notice provided for in paragraph 1 shall include the information specified in paragraph 3 of Appendix 10 to Annex XVII (Government Procurement).
3. A procuring entity shall allow suppliers to apply at any time for inclusion on a multi-use list and shall include on that list all qualified suppliers within a reasonably short time.
4. A procuring entity may use a notice inviting suppliers to apply for inclusion in a multi-use list as a notice of intended procurement, provided that:
(a) the notice is published in accordance with paragraph 1 and includes the information required under paragraph 3 of Appendix 10 to Annex XVII (Government Procurement) and as much of the information required by paragraph 1 of Appendix 10 to Annex XVII (Government Procurement) as is available, and contains a statement that it constitutes a notice of intended procurement;
(b) the entity promptly provides to suppliers that have expressed an interest to the entity in a given procurement, sufficient information to permit them to assess their interest in the procurement, including all relevant information required under paragraph 1 of Appendix 10 to Annex XVII (Government Procurement) to the extent that such information is available; and
(c) a supplier having applied for inclusion on a multi-use list in accordance with paragraph 3 may be allowed to tender in a given procurement, where there is sufficient time for the procuring entity to examine whether it satisfies the conditions for participation.