(c) would prejudice the legitimate commercial interests of particular persons, including the protection of intellectual property; or
(d) would otherwise be contrary to the public interest.
Article 11.29. Domestic Review Procedures for Supplier Challenges
1. Each State Party shall provide a timely, effective, transparent and non- discriminatory administrative or judicial review procedure according to the due process principle through which a supplier may challenge:
(a) breaches of this Chapter; or
(b) breaches ofa State Partyâs measures implementing this Chapter, where the supplier does not have a right to challenge directly a breach of this Chapter under the domestic laws and regulations of a State Party,
arising in the context of a covered procurement, in which the supplier has, or has had, an interest. The procedural rules for all challenges shall be in writing and made generally available.
2. In the event of a complaint by a supplier arising in the context of covered procurement in which the supplier has, or has had, an interest, that there has been a breach as referred to in paragraph 1, the State Party of the procuring entity may encourage that entity and the supplier to seek resolution of the complaint through consultations.
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3. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, which in no case shall be less than ten days from the date the basis of the challenge became known or reasonably should have become known to the supplier.
4. Each State Party shall establish or designate at least one impartial administrative or judicial authority that is independent of its procuring entities to receive and review a challenge by a supplier arising in the context of a covered procurement.
5. Where a body other than an authority referred to in paragraph 4 initially reviews a challenge, the State Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority that is independent of the procuring entity whose procurement is the subject of the challenge.
6. Each State Party shall ensure that a review body that is not a court shall either have its decisions subject to judicial review or have procedures that provide that:
(a) the procuring entity shall respond in writing to the challenge and disclose all relevant documents to the review body;
(b) the participants to the proceedings (hereinafter referred to as âparticipantsâ) shall have the right to be heard prior to a decision of the review body being made on the challenge;
(c) the participants shall have the right to be represented and accompanied; (d) the participants shall have access to all proceedings;
(e) the participants shall have the right to request that the proceedings take place in public and that witnesses may be presented; and
® the review body shall make its decisions or recommendations in a timely fashion in writing, and shall include an explanation of the basis for each decision or recommendation.
7. Each State Party shall adopt or maintain procedures that provide for:
(a) rapid interim measures to preserve the supplierâs opportunity to participate in the procurement. Such interim measures may result in the suspension of the procurement process. The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether such measures should be applied. Just cause for not acting shall be provided in writing; and
(b) where a review body has determined that there has been a breach of this Chapter as referred to in paragraph 1, corrective action or compensation for the loss or damages suffered, which may be limited to either the costs for the preparation of the tender or the costs relating to the challenge, or both.
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Article 11.30. Modifications and Rectifications to Coverage
1. A State Party may modify or rectify its Appendices to Annex XVIII (Government Procurement) in accordance with paragraphs 2 to 10.
Modifications
2. A State Party intending to modify its Appendices to Annex XVIII (Government Procurement) shall:
(a) _ notify the other State Parties in writing; and
(b) include in the notification a proposal for appropriate compensatory adjustments to the other State Parties to maintain a level of coverage comparable to that existing prior to the modification.
3. Notwithstanding subparagraph 2 (b), a State Party does not need to provide compensatory adjustments if the modification covers an entity over which the State Party has effectively eliminated its control or influence.
4. Ifa State Party disputes that:
(a) an adjustment proposed under subparagraph 2 (b) is adequate to maintain a comparable level of mutually agreed coverage; or
(b) the modification covers an entity over which the State Party has effectively eliminated its control or influence according to paragraph 3,
it shall object in writing within 45 days from the receipt of the notification referred to in subparagraph 2 (a). If no such objection is submitted within 45 days from the receipt of the notification, the State Party shall be deemed to have agreed to the proposed modification. Thereafter, the State Party modifying its Appendices to Annex XVIII (Government Procurement) shall deposit the modification with the Depositary.
Rectifications
5. The following changes to a State Partyâs Appendices to Annex XVIII (Government Procurement) shall be considered a rectification of a purely formal nature, provided that they do not affect the mutually agreed coverage under this Chapter:
(a) a change in the name of an entity; (b) amerger of two or more entities listed in an Appendix; and
(c) the separation of an entity listed in an Appendix into two or more entities that are all added to the entities listed in the same Appendix.
6. The State Party making such rectification of a purely formal nature shall not be obliged to provide for compensatory adjustments.
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7. In the case of proposed rectifications to a State Partyâs Appendices to Annex XVIII (Government Procurement), the State Party shall notify the other State Parties every two years following the entry into force of this Agreement.
8. A State Party may notify the other State Parties of an objection to a proposed rectification within 45 days from the receipt of the notification. Where a State Party submits an objection, it shall set out the reasons why it believes the proposed rectification is not a change provided for in paragraph 5 and describe the effect of the proposed rectification on the mutually agreed coverage under this Chapter. If no such objection is submitted in writing within 45 days from the receipt of the notification, the other State Parties shall be deemed to have agreed to the proposed rectification. Thereafter, the State Party rectifying its Appendices to Annex XVIII (Government Procurement) shall deposit the rectification with the Depositary.
Consultations and Dispute Resolution
9. If another State Party objects to the proposed modification or rectification, or to the proposed compensatory adjustments, the State Parties shall seek to resolve the issue through consultations. If no agreement is found within 60 days from the receipt of the objection, the State Party seeking to modify or rectify its Appendices to Annex XVIII (Government Procurement) may have recourse to Chapter 15 (Dispute Settlement) unless the State Parties concerned agree to extend the deadline.
10. | Consultations under paragraph 9 shall be without prejudice to Chapter 15 (Dispute Settlement).
Article 11.31. Further Negotiations
Ifa State Party offers in the future to a non-Party, in an international agreement, additional benefits with regard to its respective government procurement market access coverage agreed under this Chapter, it shall, upon request of another State Party, enter into negotiations with a view to extending coverage, taking into consideration the needs of the State Parties.
Article 11.32. Work Assignments on Government Procurement
The Joint Committee or, if established in accordance with Chapter 14 (Institutional Provisions), a Sub Committee or a working group, may:
(a) _ review the implementation and application of this Chapter and the mutual opening of procurement markets;
(b) exchange information relating to the government procurement
opportunities in each State Party, including exchanges on procurement statistical data;
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1.
2.
3.
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(d)
discuss the extent and the means of cooperation in government procurement between the State Parties as referred to in Article 11.33 (Cooperation) and;
consider any other matters that may affect the operation of this Chapter.
Article 11.33. Cooperation
The State Parties recognise the importance of cooperation with a view to achieving a better understanding of their respective government procurement systems, as well as a better access to their respective markets, in particular for MSMEs.
The State Parties shall endeavour to cooperate to ensure an effective implementation of this Chapter.
In particular, cooperation activities may be carried out inter alia through:
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exchange of experience and information in areas of mutual interest, such as best practices, statistical data, expertise and policies;
exchange of best practices regarding the use of sustainable procurement practices;
promoting networks, seminars and workshops in topics of mutual interest; and
sharing of information between the State Parties, with a view to facilitating access to the government procurement markets of the State Parties, in particular for MSMEs, as well as to achieving a better understanding of their respective government procurement systems and statistics.
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Article 11.34. Facilitation of Participation of MSMEs
1. The State Parties recognise the important contribution of MSMEs to economic growth and employment and the importance of facilitating their participation in government procurement.
2, If available, a State Party shall, upon request of another State Party, provide information regarding its measures aimed at promoting, encouraging and facilitating the participation of MSMEs in government procurement.
3. With a view to facilitating participation by MSMEs in government procurement, each State Party shall, to the extent possible, and if appropriate:
(a) share information related to MSMEs; (b) â endeavour to make all tender documentation available free of charge; and
(c) undertake activities aimed at facilitating the participation of MSMEs in government procurement.
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Chapter 12. COMPETITION
Article 12.1. Rules of Competition
1. The following practices of enterprises are incompatible with the proper functioning of this Agreement in so far as they may affect trade between the Parties:
(a) agreements between enterprises, decisions by associations of enterprises and concerted practices between enterprises which have as their object or effect the prevention, restriction or distortion of competition; and
(b) â_ abuse by one or more enterprises of a dominant position in the territory of a State Party as a whole or in a substantial part thereof.
2. Paragraph 1 also applies to the activities of public enterprises and enterprises to which the State Parties grant special or exclusive rights in so far as the application of these provisions does not obstruct the performance, in law or in fact, of the particular public tasks assigned to them.
3. Paragraphs 1 and 2 shall not be construed as creating any direct obligations for enterprises.
4. This Chapter shall be without prejudice to the autonomy of each State Party to develop, maintain and enforce its competition laws and regulations.
Article 12.2. Cooperation
1. The State Parties shall cooperate and consult in their dealings with anti- competitive practices as outlined in paragraph 1 of Article 12.1 (Rules of Competition), with the aim of putting an end to such practices or their adverse effects on trade.
2. Cooperation may include the exchange of pertinent information that is available to the State Parties. No State Party shall be required to disclose information that is confidential in accordance with its domestic laws and regulations.
Article 12.3. Consultations
1. Ifa State Party considers that a given practice continues to affect trade in the sense of paragraph 1 of Article 12.1 (Rules of Competition), after cooperation or consultations pursuant to Article 12.2 (Cooperation), it may request consultations in the Joint Committee. This request shall indicate the reasons for such consultations.
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2. The State Parties concerned shall provide the Joint Committee with all the support and available information required, to the extent permitted by those State Partiesâ domestic laws and regulations, in order to examine the case in accordance with the objectives set forth in this Chapter.
3. The Joint Committee shall, within 60 days from the receipt of the request, examine the information provided in order to facilitate a mutually acceptable solution of the matter.
Article 12.4. Technical Cooperation
The State Parties may engage in technical cooperation activities, including through capacity building in the area of competition policy with the aim of strengthening and effectively enforcing competition laws and regulations, subject to the availability of funding for such activities under the State Partiesâ cooperation instruments and
programmes.
Article 12.5. Dispute Settlement
The Parties shall not have recourse to Chapter 15 (Dispute Settlement) for any matter arising under this Chapter.
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Chapter 13. TRADE AND SUSTAINABLE DEVELOPMENT
Article 13.1. Scope
Except as otherwise provided in this Chapter, this Chapter applies to measures adopted or maintained by the State Parties affecting trade-related and investment-related aspects of labour and environmental issues.
Article 13.2. Context and Objectives
1. The State Parties recall the Declaration of the United Nations Conference on the Human Environment of 1972, the Rio Declaration on Environment and Development of 1992, Agenda 21 on Environment and Development of 1992, the Johannesburg Declaration on Sustainable Development of 2002 and the Plan of Implementation on Sustainable Development of 2002, the outcome document of the United Nations Conference on Sustainable Development, âThe Future We Wantâ of 2012, the outcome document of the UN Summit on Sustainable Development âTransforming Our World: the 2030 Agenda for Sustainable Developmentâ of 2015, the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up of 1998, the Ministerial Declaration of the UN Economic and Social Council on 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 and the ILO Declaration on Social Justice for a Fair Globalization of 2008.
2. The State Parties shall promote sustainable development, which encompasses the economic, social and environmental dimensions, all three being interdependent and mutually reinforcing components of sustainable development. They underline the benefit of cooperation on trade-related labour and environmental issues as part of a global approach to trade and sustainable development.
3. The State Parties reaffirm their commitment to promote the development of international trade and investment in such a way as to contribute to the objective of sustainable development and to ensure that this objective is integrated and reflected in the Partiesâ trade relations.
4, The State Parties agree that this Chapter embodies a cooperative approach based
on common values and interests, taking into account their national circumstances and priorities.
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Article 13.3. Right to Regulate and Levels of Protection
1. Recognising the right of each State Party, subject to this Agreement, to establish its own levels of environmental and labour protection, and to adopt or modify accordingly its relevant domestic laws, policies and practices, each State Party shall seek to ensure that its domestic laws, policies and practices provide for and encourage high levels of environmental and labour protection, consistent with standards, principles and agreements referred to in Articles 13.5 (International Labour Standards and Agreements) and 13.6 (Multilateral Environmental Agreements), and shall strive to further improve the level of protection provided for in those laws policies and practices.
2. The State Parties recognise the importance of scientific and technical information, as well as relevant international standards, guidelines and recommendations when preparing and implementing measures related to the environment and labour conditions that affect trade and investment between the Parties.
Article 13.4. Upholding Levels of Protection
1. A State Party shall not fail to effectively enforce its domestic environmental and labour laws, regulations or standards in a manner affecting trade or investment between the Parties.
2. Subject to Article 13.3 (Right to Regulate and Levels of Protection), no State Party shall:
(a) weaken or reduce the level of environmental or labour protection provided by its domestic laws, regulations or standards with the sole intention to encourage investment from another State Party or to seek or to enhance a competitive trade advantage of producers or service providers operating in its territory; or
(b) waive or otherwise derogate from, or offer to waive or otherwise derogate from, its domestic laws, regulations or standards in order to encourage investment from another State Party or to seek or to enhance a competitive trade advantage of producers or service providers operating in its territory.
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Article 13.5. International Labour Standards and Agreements
1. The State Parties 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.
2. The State Parties recall the obligations deriving from membership of the ILO and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up adopted by the International Labour Conference at its 86" Session in 1998, to respect, promote and realise the principles concerning the fundamental rights, namely:
(a) freedom of association and the effective recognition of the right to collective bargaining;
(b) elimination of all forms of forced or compulsory labour; (c) effective abolition of child labour; and (d) elimination of discrimination in respect of employment and occupation.
3. The State Parties shall ensure that their labour laws, regulations and practices embody and provide protection for the fundamental principles and rights at work which are listed in paragraph 2.
4. The State Parties recall the obligations deriving from membership of the ILO to effectively implement the ILO Conventions which they have ratified and their commitment to make continued efforts towards ratifying the fundamental ILO Conventions as well as the other conventions that are classified as âup-to-dateâ by the ILO.
5. The State Parties reaffirm their commitment, under the Ministerial Declaration of the UN Economic and Social Council on Full Employment and Decent Work of 2006, to recognise the importance of full and productive employment and decent work for all as a key element of sustainable development for all countries and as a priority objective of international cooperation.
6. The State Parties commit to promote the strategic objectives of the ILO under the Decent Work Agenda and reaffirm in this regard the Declaration on Social Justice for a Fair Globalization of 2008 adopted by the Intemational Labour Conference at its 97" Session.
7. The State Parties shall pay particular attention to developing and enhancing measures for:
(a) occupational safety and health, including compensation in case of occupational injury or illness;
(b) decent working conditions for all, with regard to, inter alia, wages and earnings, working hours and other conditions of work;
(c) labour inspection; and
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(d) â non-discrimination with respect to working conditions, including for migrant workers.
8. Each State Party shall ensure that administrative and judicial proceedings are accessible and available in order to permit effective action to be taken against infringements of labour rights referred to in this Chapter.
9. The State Parties reaffirm 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 shall not be used for protectionist trade purposes, as stated in the ILO Declaration on Fundamental Principles and Rights at Work 1998, and the ILO Declaration on Social Justice for a Fair Globalisation, 2008.
Article 13.6. Multilateral Environmental Agreements
1. The State Parties recognise the importance of multilateral environmental agreements and other environmental instruments as a response of the international community to global or regional environmental challenges and stress the need to enhance the mutual supportiveness between trade and environment policies.
2. Each State Party reaffirms its commitment to the effective implementation in its laws, regulations and practices of the multilateral environmental agreements to which it is a party, as well as its adherence to environmental principles reflected in the international instruments referred to in Article 13.2 (Context and Objectives).
Article 13.7. Promotion of Trade and Investment Favouring Sustainable Development
1. The State Parties shall strive to facilitate and promote investment, trade in and dissemination of goods and services that contribute to sustainable development and support the objectives of the Decent Work Agenda, including environmentally sound technologies, renewable energy and goods and services that are energy efficient or subject to voluntary sustainability certification schemes.
2. For the purposes of paragraph 1, the State Parties agree to exchange views and may consider, jointly or bilaterally, cooperation in this area.
3. The State Parties shall encourage cooperation between enterprises in relation to goods, services and technologies that contribute to sustainable development and are beneficial to the environment.
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Article 13.8. Trade and Climate Change
1. The State Parties recognise the importance of pursuing the objectives of the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement in order to address the urgent threat of climate change and the role of trade in pursuing these objectives.
2. Pursuant to paragraph 1, the State Parties commit to:
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