ANNEX 11A . CUSTOMARY INTERNATIONAL LAW
The Parties confirm their shared understanding that "customary international law" generally and as specifically referenced in Article 7 (Treatment of Investment) of Chapter 11 (Investment), including in relation to the customary international law minimum standard of treatment of aliens, results from a general and consistent practice of States that they follow from a sense of legal obligation.
ANNEX 11B . EXPROPRIATION AND COMPENSATION
The Parties confirm their shared understanding that:
1. An action ora series of related actions by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or property interest (1) in a covered investment.
2. Article 10 (Expropriation and Compensation) of Chapter 11 (Investment) addresses two situations:
(a) the first situation is direct expropriation, where a covered investment is nationalised or otherwise directly expropriated through formal transfer of title or outright seizure; and
(b) the second situation is where an action or series of related actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
3. The determination of whether an action or series of related actions by a Party, in a specific fact situation, constitutes an expropriation of the type referred to in Paragraph 2(b) requires a case-by-case, fact-based inquiry that considers among other factors:
(a) the economic impact of the government action, although the fact that an action or series of related actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that such an expropriation has occurred;
(b) whether the government action breaches the government's prior binding written commitment to the investor, whether by contract, licence or other legal document; and
(c) the character of the government action, including, its objective and whether the action is disproportionate to the public purpose. (2)
4. Non-discriminatory regulatory actions by a Party that are designed and applied to achieve legitimate public welfare objectives, such as the protection of public health, safety and the environment do not constitute expropriation of the type referred to in Paragraph 2(b).
Chapter 12. ECONOMIC CO-OPERATION
1. Scope and Objectives
1. The Parties reaffirm the importance of ongoing economic co-operation initiatives between ASEAN, Australia and New Zealand, and agree to complement their existing economic partnership in areas where the Parties have mutual interests, taking into account the different levels of development of the Parties.
2. The Parties acknowledge the provisions to encourage and facilitate economic co-operation included in various Chapters of this Agreement.
3. Economic co-operation under this Chapter shall support implementation of this Agreement through economic co- operation activities which are trade or investment related as specified in the Work Programme.
2. Definitions
For the purposes of this Chapter:
(a) implementing Party or implementing Parties means, for each component of the Work Programme, the Party or Parties primarily responsible for the implementation of that component; and
(b) Work Programme means the programme of economic co-operation activities, organised into components, mutually determined by the Parties prior to the entry into force of this Agreement.
3. Resources
1. Recognising the development gaps among the ASEAN Member States and among the Parties, the Parties shall contribute appropriately to the implementation of the Work Programme.
2. In determining the appropriate level of contribution to the Work Programme, the Parties shall take into account:
(a) the different levels of development and capacity of Parties;
(b) any in-kind contributions able to be made to Work Programme components by Parties; and
(c) that the appropriate level of contribution enhances the relevance and sustainability of co-operation, strengthens partnerships between Parties and builds Parties' shared commitment to the effective implementation and oversight of Work Programme components.
4. Economic Co-operation Work Programme
1. Each Work Programme component shall:
(a) be trade or investment related and support this Agreement's implementation;
(b) be specified in the Work Programme;
(c) involve a minimum of two ASEAN Member States, Australia or New Zealand;
(d) address the mutual priorities of the participating Parties; and
(e) where possible, avoid duplicating existing economic co-operation activities.
2. The description of each Work Programme component shall specify the details necessary to provide clarity to the Parties regarding the scope and purpose of such component.
5. Focal Points for Implementation
1. Each Party shall designate a focal point for all matters relating to the implementation of the Work Programme and shall keep all Parties updated on its focal point's details.
2. The focal points shall be responsible for overseeing and reporting on the implementation of the Work Programme in accordance with Article 6 (Implementation and Evaluation of Work Programme Components) and Article 7 (Review of Work Programme), and for responding to inquiries from any Party regarding the Work Programme.
6. Implementation and Evaluation of Work Programme Components
1. Prior to the commencement of each Work Programme component, the implementing Party or implementing Parties, in consultation with relevant participating Parties, shall develop an implementation plan for that Work Programme component and provide that plan to each Party.
2. The implementing Party or implementing Parties for a Work Programme component may use existing mechanisms for the implementation of that component.
3. Until the completion of a Work Programme component, the implementing Party or implementing Parties shall regularly monitor and evaluate the relevant component and provide periodic reports to each Party including a final component completion report.
7. Review of Work Programme
At the direction of the FTA Joint Committee, the Work Programme shall be reviewed to assess its overall effectiveness and recommendations may be made. The FTA Joint Committee may make modifications to the Work Programme taking into account the review and available resources.
8. Non-Application of Chapter 20 (Consultations and Dispute Settlement)
Chapter 20 (Consultations and Dispute Settlement) shall not apply to any matter arising under this Chapter.
Chapter 13. TRADE AND SUSTAINABLE DEVELOPMENT
1. Basic Principles
1. The Parties recall the United Nations General Assembly Resolution 70/1 titled "Transforming our world: the 2030 Agenda for Sustainable Development", adopted on 25 September 2015 (the "2030 Agenda for Sustainable Development") and its Sustainable Development Goals.
2. The Parties recall their commitment to the multilateral environmental and labour agreements to which they are individually a party, as well as the 2030 Agenda for Sustainable Development.
3. The Parties recognise trade and sustainable development as a new area for economic co-operation under this Agreement. The Parties recognise the importance of co-operation as a mechanism to strengthen the Parties' joint and individual efforts and capacities to protect the environment and to collaborate on labour and women's economic empowerment issues, as they strengthen their trade and investment relations.
4. The Parties recognise that sustainable development encompasses economic development, social development and environmental protection, all three being interdependent and mutually reinforcing, and affirm their desire to promote the development of international trade and investment in a way that contributes to the objectives of sustainable development.
5. The Parties respect the sovereign rights of each Party to develop, set, administer and enforce its laws, regulations and policies, in the area of trade and sustainable development.
6. The Parties share a common aspiration to promote high standards of environmental and labour protection commensurate with each Party's needs, capabilities and national circumstances, and according to each Party's laws and regulations; and to uphold these in the context of sustainable development.
7. The Parties recognise that it is inappropriate to use environmental or labour standards as a disguised means of trade protectionism. The Parties also recognise that it is inappropriate to weaken or reduce levels of protection in their environmental or labour standards to encourage trade or investment.
2. Co-operation
1. The Parties may engage in economic co-operation activities consistent with Article 1 (Basic Principles) in the area of trade and sustainable development.
2. Economic co-operation may be undertaken through ways and means considered appropriate by the FTA Joint Committee.
3. Economic co-operation may cover topics related to:
(a) the climate and environment;
(b) the green and blue economy;
(c) circular economy in manufacturing; (1)
(d) energy;
(e) labour;
(f) issues under the Sustainable Development Goals; and
(g) any other areas as mutually agreed by the Parties.
4. Economic co-operation under this Chapter is subject to the availability of funds and human and other resources, and to each Party's laws and regulations.
5. Where the implementation of this Chapter is inhibited by capacity constraints, the Parties may co-operate under Chapter 12 (Economic Co-operation) to assist ASEAN Member States with such implementation. Such co-operation is subject to the identification of trade and sustainable development policy-related needs; the availability of funds and human and other resources; and each Party's laws and regulations.
3. Contact Points
To ensure that technical co-operation under this Chapter occurs on an ongoing basis, each Party shall designate a contact point or contact points for technical co-operation and information exchange under this Chapter. Each Party shall notify the other Parties of its contact point or contact points and of any change to its contact point or contact points.
4. Non-Application of Chapter 20 (Consultations and Dispute Settlement)
Chapter 20 (Consultations and Dispute Settlement) shall not apply to any matter arising under this Chapter.
Chapter 14. INTELLECTUAL PROPERTY
1. Objectives
Each Party confirms its commitment to reducing impediments to trade and investment by promoting deeper economic integration through effective and adequate creation, utilisation, protection and enforcement of intellectual property rights, taking into account the different levels of economic development and capacity and differences in national legal systems and the need to maintain an appropriate balance between the rights of intellectual property owners and the legitimate interests of users in subject matter protected by intellectual property rights.
2. Definitions
For the purposes of this Chapter:
(a) intellectual property rights means copyright and related rights; rights in trademarks, geographical indications, industrial designs, patents, and layout-designs (topographies) of integrated circuits; rights in plant varieties; and rights in undisclosed information; as referred to in the TRIPS Agreement; and
(b) WIPO means the World Intellectual Property Organization.
3. Affirmation of the TRIPS Agreement
Each Party affirms its rights and obligations with respect to each other Party under the TRIPS Agreement.
4. National Treatment
1. Each Party shall accord to the nationals of each other Party treatment no less favourable than it accords to its own nationals with regard to the protection (1) of intellectual property, subject to the exceptions provided in the TRIPS Agreement and in those multilateral agreements concluded under the auspices of WIPO.
2. Each Party may avail itself of the exceptions referred to under Paragraph 1 in relation to its judicial and administrative procedures, including requiring a national of any other Party to designate an address for service of process in its territory, or to appoint an agent in its territory, only where such exceptions are:
(a) necessary to secure compliance with laws and regulations that are not inconsistent with this Chapter; and
(b) not applied in a manner that would constitute a disguised restriction on trade.
5. Copyright
1. Each Party shall:
(a) provide to authors of works (2) the exclusive right to authorise any communication to the public of their works by wire or wireless means;
(b) provide criminal procedures and penalties at least in cases where a person wilfully infringes copyright for commercial advantage or financial gain; and
(c) foster the establishment of appropriate bodies for the collective management of copyright and encourage such bodies to operate in a manner that is efficient, publicly transparent and accountable to their members.
2. Each Party shall endeavour to:
(a) provide to authors of sound recordings (3) the exclusive right to authorise any communication to the public of their sound recordings by wire or wireless means;
(b) provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures (4) that are used by copyright owners in connection with the exercise of their copyright rights and that restrict acts, in respect of their works, which are not authorised by the copyright owners concerned or permitted by law; and
(c) provide criminal procedures and penalties at least in cases where a person wilfully commits a significant infringement of copyright, that is not committed for commercial advantage or financial gain and which is not otherwise permitted by law,
but which has a substantial prejudicial impact on the owner of the copyright.
6. Government Use of Software
Each Party confirms its commitment to:
(a) maintain appropriate laws, regulations or policies that make provision for its central government agencies to continue to use only legitimate computer software in a manner authorised by law and consistent with this Chapter; and
(b) encourage its respective regional and local governments to maintain or adopt similar measures.
7. Trademarks and Geographical Indications
1. Each Party shall maintain a trademark classification system that is consistent with the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, as amended from time to time.
2. Each Party shall provide high quality trademark rights through the conduct of examination as to substance and formalities and through opposition and cancellation procedures.
3. Each Party shall protect trademarks where they predate, in its jurisdiction, geographical indications in accordance with its domestic law and the TRIPS Agreement.
4. Each Party recognises that geographical indications may be protected through a trademark system.
8. Genetic Resources, Traditional Knowledge and Folklore
Subject to each Party's international obligations, each Party may establish appropriate measures to protect genetic resources, traditional knowledge and folklore.
9. Co-operation
1. The Parties acknowledge the significant differences in capacity between some Parties in the area of intellectual property. Mindful of this, where a Party's implementation of this Chapter is inhibited by capacity constraints, each other Party shall, as appropriate, and upon request, endeavour to provide co-operation to that Party to assist in the implementation of this Chapter.
2. At the request of a Party, any other Party may, to the extent possible and as appropriate, render assistance to the requesting Party in order to enhance the requesting Party's national framework for the acquisition, protection, enforcement, utilisation and creation of intellectual property, with a view to developing intellectual property systems that foster domestic innovation in the requesting Party.
3. The Parties agree to promote dialogue on intellectual property issues, including by:
(a) designating contact points in relevant government agencies, including contact points for the enforcement of intellectual property rights at the border;
(b) encouraging interaction between intellectual property experts in order to broaden understanding of each others' intellectual property systems; and
(c) exchanging information concerning the infringement of intellectual property rights, in accordance with domestic law.
4. The Parties shall endeavour to co-operate in order to promote the efficiency and transparency of intellectual property administration and registration systems, including by exchanging information regarding developments in such systems and by developing publicly accessible databases of registered rights.
5. The Parties shall endeavour to co-operate in order to promote education and awareness regarding the benefits of effective protection and enforcement of intellectual property rights.
6. Parties shall co-operate on border measures with a view to eliminating trade which infringes intellectual property rights. Parties who are members of the WTO shall also co-operate with each other to support the effective implementation of the requirements relating to border measures set out in Articles 51 to 60 of the TRIPS Agreement.
7. Recognising the importance of achieving the objectives of this Chapter, should any Party intend to accede to any of the following treaties, it can seek to co-operate with other Parties to support its accession to, and its implementation of, the following treaties:
(a) the Patent Cooperation Treaty 1970;
(b) the Strasbourg Agreement Concerning the International Patent Classification 1971,
(c) the Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedure 1977;
(d) the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks 1989;
(e) the Patent Law Treaty 2000,
(f) the International Convention for the Protection of New Varieties of Plants 1991;
(g) the TRIPS Agreement;
(h) the Singapore Treaty on the Law of Trademarks 2006;
(i) the WIPO Copyright Treaty 1996; and
(j) the WIPO Performances and Phonograms Treaty 1996.
8. Each Party shall, on request and as it considers appropriate, endeavour to provide co-operation to support any Party's efforts to implement an inclusive system (5) of trademark registration.
9. All co-operation under this Article is subject to the availability of resources.
10. Transparency
1. Each Party shall ensure that its laws and regulations of general application that pertain to the availability, scope, acquisition, enforcement and prevention of the abuse of intellectual property rights are made publicly available in at least the national language of that Party or in the English language. Each Party shall also endeavour to provide that final judicial decisions and administrative rulings pertaining to the aforesaid matters are made publicly available in at least the national language of that Party or in the English language.
2. Each Party shall endeavour to make the information referred to in Paragraph 1, which is publicly available, made available in the English language and on the internet.
3. Each Party shall endeavour to make available on the internet databases of all pending and registered trademark rights in its jurisdiction.
11. Recognition of Transitional Periods Under the TRIPS Agreement
Nothing in this Chapter shall derogate from any transitional period for implementing a provision of the TRIPS Agreement that has been or may be agreed by the Council for TRIPS, established pursuant to Article IV of the WTO Agreement, either prior or subsequent to the entry into force of this Agreement.
12. Committee on Intellectual Property
1. Recognising the importance of achieving the objectives of this Chapter, the Parties hereby establish a Committee on Intellectual Property (the "IP Committee"), consisting of representatives of the Parties to monitor the implementation and administration of this Chapter.
2. The IP Committee shall meet annually or as mutually determined by the Parties. Meetings may be conducted in person, or by any other means as mutually determined by the Parties.
3. The IP Committee shall determine its terms of reference in accordance with this Chapter.
4. The IP Committee shall determine its work programme in response to priorities as identified by the Parties.