TPPA – TRANS-PACIFIC\u00a0STRATEGIC ECONOMIC PARTNERSHIP AGREEMENT – FULL<\/p>\n
TRANS-PACIFIC
\nSTRATEGIC ECONOMIC PARTNERSHIP
\nAGREEMENT 1
\nPREAMBLE
\nThe Governments of Brunei Darussalam, the Republic of Chile, New Zealand and
\nthe Republic of Singapore, (hereinafter referred to collectively as the \u201cParties\u201d or
\nindividually as a \u201cParty\u201d, unless the context otherwise requires), resolve to:
\nSTRENGTHEN the special links of friendship and cooperation among them;
\nENLARGE the framework of relations among the Parties through liberalising
\ntrade and investment and encouraging further and deeper cooperation to
\ncreate a strategic partnership within the Asia – Pacific region;
\nCONTRIBUTE to the harmonious development and expansion of world trade
\nand provide a catalyst for broader cooperation at international forums;
\nCREATE an expanded and secure market for the goods and services in their
\nterritories;
\nAVOID distortions in their reciprocal trade;
\nESTABLISH clear rules governing their trade;
\nENSURE a predictable commercial framework for business planning and
\ninvestment;
\nBUILD on their respective rights and obligations under the Marrakesh
\nAgreement establishing the World Trade Organization and other multilateral
\nand bilateral agreements and arrangements;
\nAFFIRM their commitment to the Asia \u2013 Pacific Economic Cooperation
\n(APEC) goals and principles;
\nREAFFIRM their commitment to the APEC Principles to Enhance Competition
\nand Regulatory Reform with a view to protecting and promoting the
\ncompetitive process and the design of regulation that minimises distortions to
\ncompetition;
\nBE MINDFUL that economic development, social development and
\nenvironmental protection are interdependent and mutually reinforcing
\ncomponents of sustainable development and that closer economic
\npartnership can play an important role in promoting sustainable development;
\nENHANCE the competitiveness of their firms in global markets;
\nFOSTER creativity and innovation, and promote the protection intellectual
\nproperty rights to encourage trade in goods and services among the Parties; 2
\nSTRENGTHEN their strategic economic partnership to bring economic and
\nsocial benefits, to create new opportunities for employment and to improve
\nthe living standards of their peoples;
\nUPHOLD the rights of their governments to regulate in order to meet national
\npolicy objectives;
\nPRESERVE their flexibility to safeguard the public welfare;
\nENHANCE their cooperation on labour and environmental matters of mutual
\ninterest;
\nPROMOTE common frameworks within the Asia \u2013 Pacific region, and affirm
\ntheir commitment to encourage the accession to this Agreement by other
\neconomies;
\nHAVE AGREED as follows: 1-1
\nCHAPTER 1
\nINITIAL PROVISIONS
\nArticle 1.1: Objectives
\n1. This Agreement establishes a Trans-Pacific Strategic Economic Partnership
\namong the Parties, based on common interest and on the deepening of the
\nrelationship in all areas of application.
\n2. This Agreement covers in particular the commercial, economic, financial,
\nscientific, technological and cooperation fields. It may be extended to other areas
\nto be agreed upon by the Parties in order to expand and enhance the benefits of
\nthis Agreement.
\n3. The Parties seek to support the wider liberalisation process in APEC
\nconsistent with its goals of free and open trade and investment.
\n4. The trade objectives of this Agreement, as elaborated more specifically
\nthrough its principles and rules, including national treatment, most-favoured- nation
\ntreatment and transparency, are to:
\n(a) encourage expansion and diversification of trade among each Party\u2019s
\nterritory;
\n(b) eliminate barriers to trade in, and facilitate the cross-border movement
\nof, goods and services among the territories of the Parties;
\n(c) promote conditions of fair competition in the free trade area;
\n(d) substantially increase investment opportunities among each Party\u2019s
\nterritory;
\n(e) provide adequate and effective protection and enforcement of
\nintellectual property rights in each Party’s territory; and
\n(f) create an effective mechanism to prevent and resolve trade disputes.
\nArticle 1.2: Establishment of the Free Trade Area
\nThe Parties to this Agreement, consistent with Article XXIV of the General
\nAgreement on Tariffs and Trade 1994 and Article V of the General Agreement on
\nTrade in Services, which are part of the WTO Agreement, hereby establish a free
\ntrade area.2-1
\nCHAPTER 2
\nGENERAL DEFINITIONS<\/p>\n
Article 2.1: Definitions of General Application
\nFor the purposes of this Agreement, unless otherwise specified:
\nAgreement means the Trans-Pacific Strategic Economic Partnership Agreement;
\nAPEC means the Asia – Pacific Economic Cooperation;
\nCommission means the Trans-Pacific Strategic Economic Partnership
\nCommission established under Article 17.1 (Establishment of the Strategic
\nEconomic Partnership Commission);
\ncustoms administration means the competent authority that is responsible under
\nthe laws of a Party for the administration of customs laws, regulations and policies,
\nand
\n(a) in relation to Brunei Darussalam means the Royal Customs and
\nExcise Department;
\n(b) in relation to Chile means the National Customs Service of Chile;<\/p>\n
(c) in relation to New Zealand means the New Zealand Customs
\nService; and
\n(d) in relation to Singapore means the Singapore Customs;
\ncustoms duty includes any duty or charges of any kind imposed in connection
\nwith the importation of a good, and any surtaxes or surcharges imposed in
\nconnection with such importation, but does not include:
\n(a) charges equivalent to an internal tax imposed consistently with GATT
\n1994, including excise duties and goods and services tax;
\n(b) fees or other charges that
\n(i) are limited in amount to the approximate cost of services rendered,
\nand
\n(ii) do not represent a direct or indirect protection for domestic goods
\nor a taxation of imports for fiscal purposes; and
\n2-2
\n(c) any anti-dumping or countervailing duty applied consistently with the
\nprovisions of Article VI of GATT 1994, the WTO Agreement on the
\nImplementation of Article VI of GATT 1994, and the WTO Agreement on
\nSubsidies and Countervailing Measures;
\nCustoms Valuation Agreement means the Agreement on Implementation of
\nArticle VII of the General Agreement on Tariffs and Trade 1994, which is part of the
\nWTO Agreement;
\ndays means calendar days;
\nenterprise means any corporation, company, association, partnership, trust, joint
\nventure, sole-proprietorship or other entity constituted or organised under
\napplicable law, regardless of whether or not the entity is organised for profit,
\nprivately or otherwise owned, or organised with limited or unlimited liability;
\nenterprise of a Party means an enterprise constituted or organised under the law
\nof a Party;
\nexisting means in effect on the date of entry into force of this Agreement for a
\nParty;
\nGATS means the General Agreement on Trade in Services, which is part of the
\nWTO Agreement;
\nGATT 1994 means the General Agreement on Tariffs and Trade 1994, which is
\npart of the WTO Agreement;
\ngoods of a Party means domestic products as these are understood in GATT
\n1994 or such goods as the Parties may agree and includes originating goods of a
\nParty;
\ngoods and products shall be understood to have the same meaning unless the
\ncontext otherwise requires;
\nHarmonized System (HS) means the Harmonized Commodity Description and
\nCoding System administered by the World Customs Organisation, including its
\nGeneral Rules of Interpretation, Section Notes and Chapter Notes, as adopted and
\nimplemented by the Parties in their respective tariff laws;
\nheading means the first four digits in the tariff classification under the Harmonized
\nSystem;
\nmeasure includes any law, regulation, procedure, requirement or practice; 2-3
\nnational means a natural person who has the nationality of a Party according to
\nAnnex 2.A or a permanent resident of a Party;
\noriginating means qualifying under the rules of origin set out in Chapter 4 (Rules
\nof Origin);
\nperson means a natural person or an enterprise;
\nperson of a Party means a national or an enterprise of a Party;
\nproducer means a person who grows, raises, mines, harvests, fishes, captures,
\ngathers, collects, breeds, extracts, hunts, manufactures, processes, assembles or
\ndisassembles a good;
\npreferential tariff treatment means the customs duty rate applicable to an
\noriginating good, pursuant to the Parties’ respective Tariff Elimination Schedules
\nset out in Annex I;
\nSafeguards Agreement means the Agreement on Safeguards, which is part of the
\nWTO Agreement;
\nsubheading means the first six digits in the tariff classification under the
\nHarmonised System;
\nterritory means for a Party the territory of that Party as set out in Annex 2.A;
\nWTO means the World Trade Organisation;
\nWTO Agreement means the Marrakesh Agreement Establishing the World Trade
\nOrganization, done on April 15, 1994. 2-4
\nAnnex 2.A
\nCountry-Specific Definitions
\nFor the purposes of this Agreement, unless otherwise specified:
\nnatural person who has the nationality of a Party means:
\n(a) with respect to Brunei Darussalam, a subject of His Majesty the Sultan
\nand Yang Di-Pertuan in accordance with the Laws of Brunei;
\n(b) with respect to Chile, a Chilean as defined in Article 10 of the
\nConstituci\u00f3n Pol\u00edtica de la Rep\u00fablica de Chile;
\n(c) with respect to New Zealand, a citizen as defined in the Citizenship Act
\n1977, as amended from time to time, or any successor legislation; and
\n(d) with respect to Singapore, any person who is a citizen within the
\nmeaning of its Constitution and domestic laws.
\nterritory means:
\n(a) with respect to Brunei Darussalam, the territory of Brunei Darussalam
\nand the maritime areas adjacent to the coast of Brunei Darussalam to
\nthe extent to which Brunei Darussalam may exercise sovereign rights or
\njurisdiction in accordance with international law and its legislation;
\n(b) with respect to Chile, the land, maritime, and air space under its
\nsovereignty, and the exclusive economic zone and the continental shelf
\nwithin which it exercises sovereign rights and jurisdiction in accordance
\nwith international law and its domestic law;
\n(b) with respect to New Zealand, the territory of New Zealand and the
\nexclusive economic zone, seabed and subsoil over which it exercises
\nsovereign rights with respect to natural resources in accordance with
\ninternational law, but does not include Tokelau; and
\n(c) with respect to Singapore, its land territory, internal waters and territorial
\nsea as well as and any maritime area situated beyond the territorial sea
\nwhich has been or might in future be designated under its domestic law,
\nin accordance with international law, as an area within which Singapore
\nmay exercise sovereign rights or jurisdiction with regard to the sea,
\nseabed, the subsoil and the natural resources. 3-1
\nCHAPTER 3
\nTRADE IN GOODS
\nArticle 3.1: Definitions
\nFor the purposes of this Chapter:
\nadvertising films and recordings means recorded audio\/visual (film, tape, or
\ndisc), or audio (tape or disc) media designed to advertise or promote goods or
\nservices by any company, firm or person, having an established business or
\nresident in the territory of a Party, excluding such media for general public
\nexhibition;
\nagricultural goods means those goods referred to in Article 2 of the Agreement
\non Agriculture, which is part of the WTO Agreement;
\ncommercial samples of negligible value means commerical samples having a
\nvalue, individually or in the aggregate as shipped, of not more than one US dollar,
\nor the equivalent amount in the currency of a Party, or so marked, torn, perforated
\nor otherwise treated that they are unsuitable for sale or for use except as comercial
\nsamples;
\nconsular transactions means requirements that goods of a Party intended for
\nexport to the territory of the other Party must first be submitted to the supervision of
\nthe consul of the importing Party in the territory of the exporting Party for the
\npurpose of obtaining consular invoices or consular visas for commercial invoices,
\ncertificates of origin, manifests, shippers\u2019 export declarations or any other customs
\ndocumentation required on or in connection with importation;
\nduty-free means free of customs duty;
\nexport subsidies shall have the meaning assigned to that term in Article 1(e) of
\nthe Agreement on Agriculture, which is part of the WTO Agreement, including any
\namendment of that article;
\ngoods admitted for sports purposes means articles and equipment for use in
\nsports contests, demonstrations or training in the territory of the Party into whose
\nterritory such goods are imported;
\ngoods intended for display or demonstration includes instruments, apparatus
\nand models designed for demonstrational purposes, unsuitable for other purposes,
\nand classified in Harmonized System Tariff heading 90.23; 3-2
\nprinted advertising materials means those goods classified in Chapter 49 of the
\nHarmonized System, including brochures, pamphlets, leaflets, trade catalogues,
\nyearbooks published by trade associations, tourist promotional materials and
\nposters, that are used to promote, publicise or advertise a good or serviced, are
\nessentially intended to advertise a good or services, and are supplied free of
\ncharge.
\nArticle 3.2: Scope
\nExcept as otherwise provided, this Chapter applies to trade in all goods
\nbetween any of the Parties.
\nArticle 3.3: National Treatment
\nEach Party shall accord national treatment to the goods of the other Parties
\nin accordance with Article III of GATT 1994. To this end, the provisions of Article III
\nof GATT 1994 are incorporated into and shall form part of this Agreement, mutatis
\nmutandis.
\nArticle 3.4: Elimination of Customs Duties
\n1. Except as otherwise provided in this Agreement, no Party may increase any
\nexisting customs duty, or adopt any customs duty, on an originating good.
\n2. Except as otherwise provided in this Agreement, and subject to a Party\u2019s
\nSchedule as set out in Annex I, as at the date of entry into force of this Agreement
\neach Party shall eliminate all customs duties on originating goods of another Party.
\n3. On the request of any Party, the Parties shall consult to consider
\naccelerating the elimination of customs duties set out in their Schedules. An
\nagreement between two or more of the Parties to accelerate the elimination of a
\ncustoms duty on a good shall supersede any duty rate or staging category
\ndetermined pursuant to their Schedules for such good when approved by each
\nParty in accordance with Article 17.2 (Functions of the Commission). Any such
\nacceleration shall be extended to all Parties.
\nArticle 3.5: Goods Re-entered after Repair and Alteration
\n1. The Parties may not apply a customs duty to a good, regardless of its origin,
\nthat re-enters its territory after that good has been temporarily exported from its
\nterritory to the territory of another Party for repair or alteration, regardless of
\nwhether such repair or alteration could be performed in its own territory. 3-3
\n2. The Parties may not apply a customs duty to a good, regardless of its origin,
\nadmitted temporarily from the territory of another Party for repair or alteration.
\n3. For the purposes of this Article, repair and alteration does not include an
\noperation or process that:
\n(a) destroys a good’s essential characteristics or creates a new or
\ncommercially different good; or
\n(b) transforms an unfinished good into a finished good.
\nArticle 3.6: Duty-Free Entry of Commercial Samples of Negligible Value and
\nPrinted Advertising Material
\nWith the exception of liquor and tobacco products, the Parties shall grant
\ncustoms duty-free entry to commercial samples of negligible value and to printed
\nadvertising materials imported from the territory of another Party, regardless of
\ntheir origin, but may require that:
\n(a) such samples be imported solely for the solicitation of orders for goods,
\nor services provided from the territory, of another Party or a non-Party;
\nor
\n(b) such advertising materials are imported in packets that each contain no
\nmore than one copy of each material and that neither such materials nor
\npackets form part of a larger consignment.
\nArticle 3.7: Temporary Admission of Goods
\n1. With the exception of liquor and tobacco products each Party shall grant
\ncustoms duty-free temporary admission for:
\n(a) professional equipment, including equipment for the press or television,
\nsoftware and broadcasting and cinematographic equipment, necessary
\nfor carrying out the business activity, trade or profession of a business
\nperson;
\n(b) goods intended for display or demonstration;
\n(c) commercial samples and advertising films and recordings; and
\n(d) goods admitted for sports purposes, including racing or others similar
\nevents, regardless of their origin. 3-4
\n2. Each Party shall, at the request of the person concerned and for reasons
\ndeemed valid by its customs authority, extend the time limit for temporary
\nadmission beyond the period initially fixed, provided that the period of extension,
\nhaving regard to the particular goods and circumstances of each case, is
\nreasonable and the period of extension is no greater than the period initially fixed.
\n3. No Party may condition the duty-free temporary admission of goods referred
\nto in Paragraph 1, other than to require that such goods:
\n(a) be used solely by or under the personal supervision of a national or
\nresident of another Party in the exercise of the business activity, trade,
\nprofession, or sport of that person;
\n(b) not be sold or leased or disposed of or transferred while in its territory;
\n(c) be accompanied by a security in an amount no greater than the charges
\nthat would otherwise be owed on entry or final importation, releasable
\non exportation of the good;
\n(d) be capable of identification when imported and exported;
\n(e) be exported on the departure of the person referenced in Subparagraph
\n(a), or within such other period, related to the purpose of the temporary
\nadmission, as the Party may establish;
\n(f) be admitted in no greater quantity than is reasonable for their intended
\nuse; and
\n(g) be otherwise admissible into the Party\u2019s territory under its laws.
\n4. If any condition that a Party imposes under Paragraph 3 has not been
\nfulfilled, the Party may apply the customs duty and any other charge that would
\nnormally be owed on the good plus any other charges or penalties provided for
\nunder its domestic law.
\n5. Each Party, through its customs authority, shall adopt procedures providing
\nfor the expeditious release of goods admitted under this Article. To the extent
\npossible, such procedures shall provide that when such a good accompanies a
\nnational or resident of another Party who is seeking temporary entry, the good shall
\nbe released simultaneously with the entry of that national or resident.
\n6. Each Party shall permit a good temporarily admitted under this Article to be
\nexported through a customs authorised point of departure other than that through
\nwhich it was admitted. 3-5
\n7. Subject to Chapter 12 (Trade in Services):
\n(a) each Party shall allow a vehicle or container used in international traffic
\nthat enters its territory from the territory of another Party to exit its
\nterritory on any route that is reasonably related to the economic and
\nprompt departure of such vehicle or container;
\n(b) no Party may require any bond or impose any penalty or charge solely
\nby reason of any difference between the customs authorised point of
\nentry and the customs authorised point of departure of a vehicle or
\ncontainer;
\n(c) no Party may condition the release of any obligation, including any
\nbond, that it imposes in respect of the entry of a vehicle or container into
\nits territory on its exit through any particular customs authorised point of
\ndeparture; and
\n(d) no Party may require that the vehicle or carrier bringing a container from
\nthe territory of another Party into its territory be the same vehicle or
\ncarrier that takes such container back to the territory of that other Party.<\/p>\n
Article 3.8: Non-Tariff Measures
\n1. No Party shall adopt or maintain any non-tariff measures on the importation
\nof any good of another Party or on the exportation of any good destined for the
\nterritory of another Party except in accordance with its rights and obligations under
\nthe WTO Agreement or in accordance with other provisions of this Agreement.
\n2. Paragraph 1 shall not apply to the measures set out in Annex 3.A.
\nArticle 3.9: Administrative Fees and Formalities
\n1. The Parties agree that fees, charges, formalities and requirements imposed
\nin connection with the importation and exportation of goods shall be consistent with
\ntheir obligations under GATT 1994.
\n2. No Party may require consular transactions, including related fees and
\ncharges, in connection with the importation of any good of the other Parties.
\n3. Each Party shall make available through the Internet or a comparable
\ncomputer-based telecommunications network a current list of the fees and charges
\nit imposes in connection with importation or exportation. 3-6
\nArticle 3.10: Export Duties
\nNo Party may adopt or maintain any duty, tax, or other charge on the export
\nof any good to the territory of the other Parties, unless such duty, tax, or charge is
\nadopted or maintained on any such good when destined for domestic
\nconsumption.
\n1<\/p>\n
Article 3.11: Agricultural Export Subsidies
\n1. The Parties share the objective of the multilateral elimination of all forms of
\nexport subsidies for agricultural goods and shall cooperate in an effort to achieve
\nsuch an agreement and prevent their reintroduction in any form.
\n2. Notwithstanding any other provisions of this Agreement, the Parties agree to
\neliminate, as of the date of entry into force of this Agreement, all forms of export
\nsubsidy for agricultural goods destined for the other Parties, and to prevent the
\nreintroduction of such subsidies in any form.
\nArticle 3.12: Price Band System
\n1. Chile may maintain its Price Band System as established in Article 12 of
\nLaw 18.525 and its subsequent legal modifications or succeeding system, for the
\nproducts covered by that law.
\n2
\n2 With respect to the products referred to in Paragraph 1, Chile shall give to
\nthe other Parties a treatment not less favourable than the preferential tariff
\ntreatment given to any third country, including countries with which Chile has
\nconcluded or will conclude in the future an agreement notified under Article XXIV of
\nGATT 1994.
\nArticle 3.13: Special Agricultural Safeguard Measures
\n1. Chile may apply a special safeguard measure to a limited number of
\nspecified sensitive agricultural goods listed in Annex 3.B.
\n2. Chile shall endeavour to apply special safeguard measures in a manner that
\nis consistent with its commitments under this Agreement to liberalise and promote
\nthe expansion of trade in these goods among the Parties.<\/p>\n
1
\nFor greater certainty, this Article shall not apply to fees, charges, formalities and requirements on
\nthe exportation of goods imposed consistent with the provisions of Article VIII of GATT 1994.
\n2
\nThe only products covered by the Price Band System are HS 1001.9000, 1101.0000, 1701.1100,
\n1701.1200, 1701.9100, 1701.9910, 1701.9920 and 1701.9990. 3-7
\n3 Chile may impose a special safeguard measure on a good only during the
\nperiod, following the grace period specified in Chile\u2019s Schedule as set out in Annex
\nI, in which tariffs are being eliminated. Chile may not impose a special safeguard
\nmeasure on a good after that good achieves duty-free status under this
\nAgreement.
\n4. Notwithstanding Article 3.4, Chile may impose a special safeguard measure
\nin the form of additional import duties as set out below on those goods listed in
\nAnnex 3.B. The sum of any such additional duty and any import duties or other
\ncharges applied pursuant to Article 3.4 shall not exceed the lesser of:
\n(a) the prevailing most-favoured-nation applied rate; or
\n(b) the base rate.
\n5. Chile may impose a special safeguard measure if the quantity of imports of
\nthe good during any semester exceeds the quantity trigger level, corresponding to
\nthat specific semester, for those goods listed in Annex 3.B.
\n6. Chile may maintain a special safeguard measure, under Paragraph 5, only
\nuntil the end of the semester in which Chile applies the measure.
\n7 Supplies of the good in question which were en route on the basis of a
\ncontract settled before the additional customs duty is imposed under the terms of
\nthis Article shall be exempted from any such additional customs duty, provided that
\nthey may be counted in the volume of imports of the good in question during the
\nfollowing semester for the purposes of triggering the provisions of Paragraph 5 in
\nthat semester.
\n8. Chile may not apply, with respect to the same good, a special safeguard
\nmeasure and at the same time apply or maintain a measure under Article XIX of
\nGATT 1994 and the Safeguards Agreement.
\n9. Chile shall apply any special safeguard measure in a transparent manner.
\nChile shall ensure that the current volume of imports is published in a manner
\nwhich is readily accessible to the other Parties, and shall give notice in writing,
\nincluding relevant data, to the other Parties as far in advance as may be
\npracticable and in any event within 10 working days of the implementation of such
\naction. If Chile decides not to apply a special safeguard measure where the
\nspecified trigger volume has been or is about to be met, it shall notify the other
\nParties promptly of its decision.
\n10. Upon request of a Party, Chile shall consult promptly and cooperate in
\nexchanging information, as appropriate, with respect to the conditions for applying
\na special safeguard measure. 3-8
\n11. The Committee on Trade in Goods may review the implementation and
\noperation of this Article.
\n12. For purposes of this Article, special safeguard measure means a special
\nsafeguard measure described in Paragraph 4 and base rate means the rate of
\ncustoms duty for an imported good as indicated in the Schedule of the importing
\nParty as set out in Annex I.
\nArticle 3.14: Committee on Trade in Goods
\n1. The Parties may establish a Committee on Trade in Goods that may meet
\non the request of any Party or the Commission to consider any matter arising
\nunder this Chapter and Chapter 4 (Rules of Origin).
\n2. The Committee\u2019s functions shall include:
\n(a) reviewing the implementation of the Chapters referred to above; and
\n(b) identification and recommendation of measures to promote and facilitate
\nimproved market access, including addressing barriers to trade in goods
\namong the Parties, and to accelerate the tariff elimination under this
\nAgreement. 3-9
\nAnnex 3.A
\nImport and Export Measures
\nMeasures of Chile
\nArticle 3.8 shall not apply to measures of Chile relating to imports of used
\nvehicles. 3-10
\nAnnex 3.B
\nSpecial Safeguard Measures
\nFor purposes of Article 3.13, goods originating in Brunei Darussalam,
\nNew Zealand or Singapore that may be subject to a special safeguard measure
\nand the trigger levels for each such good are set out below:
\nList of Chile
\nCode Description
\nQuantity Trigger Level<\/p>\n
0402.1000 -In powder, granules or other solid forms, of a fat
\ncontent, by weight, not exceeding 1.5 % Basket 1
\n– In powder, granules or other solid forms, of a fat
\ncontent, by weight, exceeding 1.5%:<\/p>\n
0402.21 –Not containing added sugar or other sweetening
\nmatter :
\n—Milk
\n0402.2111 —-Of a fat content exceeding 1.5% but not
\nexceeding 6% Basket 1
\n0402.2112 —-Of a fat content exceeding 6% but not
\nexceeding 12% Basket 1
\n0402.2113 —-Of a fat content of 12% Basket 1
\n0402.2114 —-Of a fat content exceeding 12% but not
\nexceeding 18% Basket 1
\n0402.2115 —-Of a fat content of 18% Basket 1
\n0402.2116 —-Of a fat content exceeding 18% but not
\nexceeding 24% Basket 1
\n0402.2117 —-Of a fat content of 24% but not exceeding
\n26% Basket 1
\n0402.2118 —-Of a fat content of 26% and more Basket 1
\n0402.2120 —Cream Basket 2
\n0402.29 –Other
\n—Milk
\n0402.2911 —-Of a fat content exceeding 1.5% but not
\nexceeding 6% Basket 1
\n0402.2912 —-Of a fat content exceeding 6% but not
\nexceeding 12% Basket 1
\n0402.2913 —-Of a fat content of 12% Basket 1
\n0402.2914 —-Of a fat content of 12% but not exceeding
\n18% Basket 1
\n0402.2915 —-Of a fat content of 18% Basket 1 3-11
\nCode Description Quantity Trigger Level
\n0402.2916 —-Of a fat content exceeding 18% but not
\nexceeding 24% Basket 1
\n0402.2917 —-Of a fat content of 24% but not exceeding
\n26% Basket 1
\n0402.2918 —-Of a fat content of 26% and more Basket 1
\n0402.2920 —Cream Basket 1
\n– Other
\n0402.91 –Not containing added sugar or other sweetening
\nmatter<\/p>\n
0402.9110 —Milk, whether in liquid or semi-solid form Basket 3
\n0402.9120 —Cream Basket 3
\n0402.99 –Other
\n0402.9910 —Condensed milk Basket 4
\n0402.9990 —Other Basket 5
\n04.03 Buttermilk, curdled milk and cream, yogurt, kephir
\nand other fermented or acidified milk and cream,
\nwhether or not concentrated or containing added
\nsugar or other sweetening matter or flavoured or
\ncontaining added fruit, nuts or cocoa<\/p>\n
0403.9000 -Other Basket 6
\n04.04 Whey, whether or not concentrated or containing
\nadded sugar or other sweetening matter;
\nproducts consisting of natural milk constituents,
\nwhether or not containing added sugar or other
\nsweetening matter, not elsewhere specified or
\nincluded
\n0404.1000 -Whey and modified whey, whether or not
\nconcentrated or containing added sugar or other
\nsweetening matter
\nBasket 6
\n04.05 Butter and other fats and oils derived from milk;
\ndairy spreads
\n0405.1000 -Butter Basket 7
\n0405.2000 -Dairy spreads Basket 7
\n0405.9000 -Other Basket 8
\n04.06 Cheese and curd
\n0406.10 -Fresh (unripened or uncured) cheese, including
\nwhey cheese, and curd<\/p>\n
0406.1030 –Mozzarella cheese Basket 9
\n0406.1090 –Other Basket 9
\n0406.90 -Other cheese :
\n0406.9010 –Gouda and Gouda-type cheese Basket 9
\n0406.9020 –Cheddar and Cheddar-type cheese Basket 9
\n0406.9030 –Edam and Edam-type cheese Basket 9
\n0406.9090 –Other Basket 9
\n3-12
\nBasket 1 : 112.2 tons
\nBasket 2 : 5.4 tons
\nBasket 3 : 27.6 tons
\nBasket 4 : 2.4 tons
\nBasket 5 : 0.6 tons
\nBasket 6 : 156 tons
\nBasket 7 : 240 tons
\nBasket 8 : 3.6 tons
\nBasket 9 : 87 tons
\nNotes:
\n\u2022 The quantities set out above for baskets correspond to each semester. The
\nsemesters run from January 1 to June 30 and July 1 to December 31 for
\neach year.
\n\u2022 Each basket will have an annual growth rate of 8 percent which will be
\ncalculated at the end of each calendar year.
\n\u2022 In the first calendar year following entry into force of the Agreement, the
\n8 percent annual growth rate will apply to that calendar year and each
\ncalendar year thereafter. 4-1
\nCHAPTER 4<\/p>\n
RULES OF ORIGIN
\nArticle 4.1: Definitions
\nFor the purposes of this Chapter:
\naquaculture means the farming of aquatic organisms including fish, molluscs,
\ncrustaceans, other aquatic invertebrates and aquatic plants, from seedstock such
\nas eggs, fry, fingerlings and larvae, by intervention in the rearing or growth
\nprocesses to enhance production, such as regular stocking, feeding, or protection
\nfrom predators;
\nCIF means the value of the good imported and includes the cost of insurance and
\nfreight up to the port or place of entry in the country of importation. The valuation
\nshall be made in accordance with the Customs Valuation Agreement;<\/p>\n
FOB means the value of the good free on board, independent of the means of
\ntransportation, at the port or site of final shipment abroad. The valuation shall be
\nmade in accordance with the Customs Valuation Agreement;
\ngoods wholly obtained or produced entirely in a Party means:<\/p>\n
(a) mineral goods extracted from the soil or seabed in the territory of a
\nParty;<\/p>\n
(b) agricultural and plant products grown and harvested, picked or gathered
\nin the territory of a Party;<\/p>\n
(c) live animals, born and raised in the territory of a Party;
\n(d) goods obtained from live animals in the territory of a Party;
\n(e) goods obtained from hunting, trapping, fishing, farming, gathering,
\ncapturing or aquaculture in the territory of a Party;<\/p>\n
(f) goods (fish, shellfish, plant and other marine life) taken within the
\nterritorial sea or the relevant maritime zone of a Party seaward of the
\nterritorial sea under that Party’s applicable law in accordance with the
\nprovisions of the United Nations Convention on the Law of the Sea 1982
\nby a vessel flying, or entitled to fly, the flag of that Party, or taken from
\nthe high seas by a vessel registered or recorded with that Party and
\nflying its flag;
\n4-2
\n(g) goods obtained or produced on board a factory ship registered or
\nrecorded with that Party and flying its flag, exclusively from products
\nreferred to in Subparagraph (f);
\n(h) waste and scrap derived from production in the territory of a Party or
\nused articles or goods collected in the territory of a Party, provided that
\nsuch goods are fit only for the recovery of raw materials;
\n(i) goods taken by a Party, or a person of a Party, from the seabed or
\nsubsoil beneath the territorial sea or the continental shelf of that Party, in
\naccordance with the provision of the United Nations Convention on the
\nLaw of the Sea 1982;<\/p>\n
(j) recovered goods derived in the territory of a Party from used goods and
\nutilised in the territory of the Party in the production of remanufactured
\ngoods; and<\/p>\n
(k) goods produced entirely in the territory of a Party exclusively from goods
\nreferred to in Subparagraphs (a) to (j) or from their derivatives, at any
\nstage of production;<\/p>\n
indirect material means a good used in the production, testing or inspection of
\nanother good but not physically incorporated into the good, or a good used in the
\nmaintenance of buildings or the operation of equipment associated with the
\nproduction of a good, including:<\/p>\n
(a) fuel, energy, catalysts and solvents;<\/p>\n
(b) equipment, devices, and supplies used for testing or inspecting the
\ngoods;
\n(c) gloves, glasses, footwear, clothing, safety equipment and supplies;
\n(d) tools, dies and moulds;
\n(e) spare parts and materials used in the maintenance of equipment and
\nbuildings;
\n(f) lubricants, greases, compounding materials and other materials used in
\nproduction or used to operate equipment and buildings; and
\n(g) any other goods that are not incorporated into the good but whose use
\nin the production of the good can reasonably be demonstrated to be a
\npart of that production. 4-3
\nmaterial means a good or any matter or substance that is used or consumed in the
\nproduction of goods or transformation of another good;
\nminimal operations or processes means operations or processes which
\ncontribute minimally to the essential characteristics of the goods and which by
\nthemselves, or in combination, do not confer origin;<\/p>\n
packing materials and containers for shipment means goods used to protect a
\ngood during its transportation, other than containers and packaging materials used
\nfor retail sale;<\/p>\n
production means methods of obtaining goods including, but not limited to
\ngrowing, raising, mining, harvesting, fishing, farming, trapping, hunting, capturing,
\naquaculture, gathering, collecting, breeding, extracting, manufacturing, processing,
\nassembling or disassembling a good;
\nrecovered goods means materials in the form of individual parts that result from:<\/p>\n
(a) the complete disassembly of used goods into individual parts; and<\/p>\n
(b) the cleaning, inspecting, or testing or other processing of those parts,
\nand as necessary for improvement to sound working condition one or
\nmore of the following processes: welding, flame spraying, surface
\nmachining, knurling, plating, sleeving and rewinding in order for such
\nparts to be assembled with other parts, including other recovered parts
\nin the production of a remanufactured good as listed in Annex 4.A;<\/p>\n
remanufactured goods means an industrial good assembled in the territory of a
\nParty as listed in Annex 4.A, that:
\n(a) is entirely or partially composed of recovered goods;<\/p>\n
(b) has the same life expectancy and meets the same performance
\nstandards as a new good; and
\n(c) enjoys the same factory warranty as such a new good;<\/p>\n
transaction value means the price paid or payable for a good as determined by
\nthe provisions of the Customs Valuation Agreement;<\/p>\n
used means used or consumed in the production of goods;
\nvalue means the value of a good or material, pursuant to the provisions of the
\nCustoms Valuation Agreement.
\n4-4
\nArticle 4.2: Originating Goods<\/p>\n
Unless otherwise indicated in this Chapter, a good shall be considered as
\noriginating in a Party when:<\/p>\n
(a) the good is wholly obtained or produced entirely in the territory of one
\nParty, pursuant to the definition in Article 4.1;<\/p>\n
(b) the good is produced entirely in the territory of one or more Parties,
\nexclusively from materials whose origin conforms to the provisions of
\nthis Chapter; or<\/p>\n
(c) the good is produced in the territory of one or more Parties, using nonoriginating materials that conform to a change in tariff classification, a
\nregional value content, or other requirements specified in Annex II, and
\nthe good meets the other applicable provisions of this Chapter.
\nArticle 4.3: Regional Value Content<\/p>\n
1. Where Annex II refers to a regional value content, each Party shall provide
\nthat the regional value content of a good shall be calculated on the basis of the
\nfollowing method:
\nTV – VNM
\nRVC = ————— x 100
\nTV<\/p>\n
where:
\nRVC is the regional value content expressed as a percentage;
\nTV is the transaction value of the good, adjusted on an FOB
\nbasis, except as provided in Paragraph 3. If no such value exists or
\ncannot be determined, pursuant to the principles of Article 1 of the
\nCustoms Valuation Agreement, it shall be calculated pursuant to the
\nprinciples of Articles 2 to 7 of that Agreement; and<\/p>\n
VNM is the transaction value of the non-originating materials, when
\nthey were first acquired or supplied to the producer of the goods,
\nadjusted on a CIF basis, except as provided in Paragraph 4. If such
\nvalue does not exist or cannot be determined, pursuant to the principles
\nof Article 1 of the Customs Valuation Agreement, it shall be calculated
\npursuant to that Agreement. 4-5
\n2. The value of the non-originating materials used by the producer in the
\nproduction of a good shall not include, for purposes of calculating the regional
\nvalue content, pursuant to Paragraph 1, the value of non-originating materials used
\nto produce the originating materials subsequently used in the production of the
\ngood.<\/p>\n
3. When the producer of a good does not export it directly, the value shall be
\nadjusted up to the point at which the purchaser receives the good within the
\nterritory of a Party where the producer is located.
\n4. When the producer of the good acquires a non-originating material in the
\nterritory of the Party where it is located, the value of such material shall not include
\nfreight, insurance, packing costs and any other costs incurred in transporting the
\nmaterial from the supplier’s warehouse to the producer’s location.
\nArticle 4.4: Operations that do not Confer Origin<\/p>\n
The minimal operations or processes that do not confer origin, include the
\nfollowing:
\n(a) operations to ensure the preservation of products in good condition
\nduring transport and storage (such as drying, freezing, ventilation,
\nchilling and like operations);
\n(b) simple operations consisting of sifting, classifying, washing, cutting,
\nslitting, bending, coiling, or uncoiling;
\n(c) changes of packing and breaking up and assembly of consignments;
\n(d) packing, unpacking or repacking operations;
\n(e) affixing of marks, labels or other like distinguishing signs on products
\nor their packaging; and
\n(f) mere dilution with water or another substance that does not
\nmaterially alter the characteristics of the goods.
\nArticle 4.5: Accumulation<\/p>\n
Originating goods or materials of any of the Parties used in the production of
\ngoods in the territory of another Party shall be considered to originate in the
\nterritory of the latter Party. 4-6
\nArticle 4.6: De Minimis<\/p>\n
A good that does not conform to a change in tariff classification, pursuant to
\nthe provisions of Annex II, shall be considered to be originating if the value of all
\nnon-originating materials used in its production not meeting the change in tariff
\nclassification requirement does not exceed 10 percent of the transaction value of
\nthe given good pursuant to Article 4.3, and the good meets all the other applicable
\ncriteria of this Chapter.
\nArticle 4.7: Accessories, Spare Parts, and Tools<\/p>\n
1. Normal accessories, spare parts, or tools provided with the good as part of
\nthe standard accessories, spare parts, or tools shall be regarded as originating
\ngoods and shall be disregarded in determining whether or not all the nonoriginating materials used in the production of the originating goods undergo the
\napplicable change in tariff classification, provided that:<\/p>\n
(a) the accessories, spare parts, or tools are classified with and not invoiced
\nseparately from the good; and
\n(b) the quantities and the value of those accessories, spare parts, or tools
\nare the normal ones for the good.
\n2. If the goods are subject to a regional value content requirement, the value of
\nthe accessories, spare parts, or tools shall be taken into account as originating or
\nnon-originating materials, as the case may be, in calculating the regional value
\ncontent of the goods.
\nArticle 4.8: Packaging Materials and Containers for Retail Sale<\/p>\n
Packaging materials and containers in which goods are packaged for retail
\nsale, if classified with the goods, shall be disregarded in determining whether all
\nthe non-originating materials used in the production of those goods have
\nundergone the applicable change in tariff classification set out in Annex II.
\nHowever, if the goods are subject to a regional value content requirement the value
\nof the packaging used for retail sale will be counted as originating or nonoriginating, as the case may be, in calculating the regional value content of the
\ngoods.
\n4-7
\nArticle 4.9: Packing Materials and Containers for Shipment<\/p>\n
Packing materials and containers in which a good is packed exclusively for
\ntransport shall not be taken into account for purposes of establishing whether the
\ngood is originating.
\nArticle 4.10: Indirect Materials<\/p>\n
Indirect materials shall be considered to be originating materials without
\nregard to where they are produced and its value shall be the cost registered in the
\naccounting records of the producer of the good.
\nArticle 4.11: Transit through Non-Parties<\/p>\n
1. Preferential tariff treatment provided for in this Agreement shall be applied to
\ngoods that satisfy the requirements of this Chapter and which are directly
\ntransported among the Parties.<\/p>\n
2. Notwithstanding Paragraph 1, goods shall be authorised to transit through
\nnon-Party countries, and to remain stored for a reasonable period of time, which in
\nno case shall be more than 6 months from the date of entry of the goods into the
\nthird non-Party country.
\n3. Goods shall be eligible for preferential tariff treatment in accordance with
\nthis Agreement if they are transported through the territory of one or more nonParties, provided that the goods:
\n(a) did not undergo operations other than unloading,
\nreloading, or any other operation necessary to preserve them in good
\ncondition; and<\/p>\n
(b) did not enter the commerce of such non-Parties after the shipment from
\nthe Party and before the importation into another Party.<\/p>\n
4. Compliance with the provisions set out in Paragraphs 2 and 3 shall be
\nproved by means of supplying to the customs authorities of the importing Party
\neither customs documents of the third country or documents of the competent
\nauthorities, including commercial shipping or freight documents. 4-8
\nArticle 4.12: Outward Processing<\/p>\n
1. Notwithstanding the relevant provisions of Article 4.2 and the productspecific requirements set out in Annex II, a good listed in Annex 4.B shall be
\nconsidered as originating even if it has undergone processes of production or
\noperation outside the territory of a Party on a material exported from the Party and
\nsubsequently re-imported to the Party, provided that:
\n(a) the total value of non-originating materials as set out in Paragraph 2
\ndoes not exceed 55 percent of the customs value of the final good for
\nwhich originating status is claimed;<\/p>\n
(b) the materials exported from a Party shall have been wholly obtained or
\nproduced in the Party or have undergone therein, processes of
\nproduction or operation going beyond the minimal processes or
\noperations in Article 4.4, prior to being exported outside the territory of
\nthe Party;<\/p>\n
(c) the producer of the exported material is the same producer of the final
\ngood for which originating status is claimed;<\/p>\n
(d) the re-imported good has been obtained through processes of
\nproduction or operation of the exported material; and<\/p>\n
(e) the last process of manufacture of the good was performed in the
\nterritory of the Party, and this process is the last activity undertaken in
\nrespect to a good that finally transforms it into a good different from its
\ncomponent parts or materials and a new good is therefore
\nmanufactured.<\/p>\n
2. For the purposes of Paragraph 1(a), the total value of non-originating
\nmaterials shall be the value of any non-originating materials added in a Party as
\nwell as the value of any materials added and all other costs accumulated outside
\nthe territory of the Party, including transportation costs.
\n3. For greater certainty, the verification procedures referred to in Article 4.16
\nshall apply in order to ensure the proper application of this Article. Such
\nprocedures include the provision of information and supporting documentation,
\nincluding that relating to the export of originating materials and the subsequent reimport of the goods subsequently exported as originating goods, by the exporting
\ncustoms administration or exporter upon receipt of a written request from the
\ncustoms administration of the importing Party through the customs administration
\nof the exporting Party.
\n4. Upon the request of a Party, the list of products in Annex 4.B may be
\nmodified by the Commission. 4-9
\nArticle 4.13: Treatment of Goods for which Preference is Claimed
\n1. A Party can accept either; a declaration as to origin on the export invoice
\n(declaration), or a certificate of origin, in respect of a good imported from any other
\nParty for which an importer claims preferential tariff treatment.
\n2. An exporter or producer may elect to use either a declaration as to origin on
\nthe export invoice or a certificate of origin, either of which may then be used by the
\nimporter as evidence of origin in respect to goods for which preferential tariff
\ntreatment is claimed.
\n3. The declaration or certificate of origin shall be completed by the exporter or
\nproducer, as the case may be. The declaration or certificate of origin shall:
\n(a) specify that the goods enumerated thereon are the origin of the
\nexporting Party and meet the terms of this Chapter;
\n(b) be made in respect of one or more goods; and which can include a
\nvariety of goods; and
\n(c) be completed in English.
\n4. The export invoice upon which the declaration as to origin is affixed and in
\nrespect of the goods subject to the declaration shall include:
\n(a) a full description;
\n(b) six digit Harmonized System Code;
\n(c) the producer’s name(s) if known; and
\n(d) the importer’s name(s) in respect of imported goods, if known.
\n5. If the export invoice does not include the information referred to in
\nParagraph 4, it must be added in “observations” on the declaration as to origin in
\nthe form set out in Annex 4.C.
\n6. The declaration shall be in the form set out in Annex 4.C, and the certificate
\nof origin shall be in the form set out in Annex 4.D. These requirements may
\nthereafter be revised or modified by an Implementing Arrangement agreed among
\nthe Parties.
\n7. The declaration and the certificate of origin shall remain valid for a period of
\n2 years from the date on which the respective documents were issued. 4-10
\n8. If the exporter is not the producer of the good referred to on the declaration
\nor on the certificate of origin, that exporter may complete and sign the declaration
\non the basis of:
\n(a) the exporter’s knowledge of whether the good qualifies as an originating
\ngood; or
\n(b) a producer\u2019s written declaration that the good qualifies as an originating
\ngood in that it meets the terms of this Chapter.
\n9. Nothing in Paragraph 8(b) shall be construed to require a producer who is
\nnot the exporter of the good to make a declaration or complete a certificate of
\norigin.
\n10. Slight discrepancies as between the wording and detail stated on the export
\ninvoice or certificate of origin produced to the customs administration of the
\nimporting Party in clearance of goods shall not, of itself, cause any claim for
\npreferential tariff treatment to be denied.
\n11. Any declaration or certificate of origin presented in the clearance of goods
\nissued in advance of the entry into force of this Agreement shall, if presented on or
\nafter the date of entry into force of this Agreement, be accepted as evidence as to
\nthe origin of the good specified thereon.
\n12. The customs administration of the importing Party shall, in accordance with
\nits domestic legislation, grant preferential tariff treatment to goods of another Party
\nonly in those instances that an importer:
\n(a) provides to the customs administration a declaration or certificate of
\norigin in accord with the provisions of this Article; or
\n(b) provides sufficient documentary or other evidence to substantiate the
\ntariff preference claimed for the goods.
\n13. The Parties shall, in accordance with their domestic legislation, provide that
\nwhere an importer claims at the time of importation a good can meet the terms of
\nthis Chapter and would thereby have qualified for preferential tariff treatment but
\nwas unable to provide a declaration or a certificate of origin or other such evidence
\nas provided for in Paragraph 12 the importer may, in accordance with domestic
\nlegislation or within 1 year from date of importation, apply for a refund of any
\nexcess customs duties paid as a result of the goods not having been accorded
\npreferential tariff treatment, on production of:
\n(a) a declaration or certificate of origin that the good qualifies as an
\noriginating good; and 4-11
\n(b) such other evidence as the customs administration may require to
\nsatisfactorily evidence the tariff preference claimed.
\n14. An importing Party may not require a declaration or certificate of origin to
\nadmit goods pursuant to tariff preference where:
\n(a) the customs value does not exceed US$1000 or the equivalent amount
\nin the Party’s currency or a higher amount as it may establish; or
\n(b) in respect of specific goods, a Party has waived the requirement for
\nsuch evidence.
\n15. In accordance with Paragraph 14, where an importation forms part of a
\nseries of importations that may reasonably be considered to have been undertaken
\nor arranged for the purposes of avoiding the origin requirements of this Article, the
\ncustoms administration of the importing Party may deny preferential tariff
\ntreatment.
\nArticle 4.14: Obligations Regarding Exports
\n1. Where the exporter or producer becomes aware that it has provided an
\nerroneous or false declaration or certificate of origin or any other such erroneous or
\nfalse evidence, the exporter or producer shall give notice as soon as possible to
\nthe customs administrations of the importing and exporting Party, as well as the
\nimporter, of any change that would affect the accuracy or validity of a declaration or
\ncertificate of origin.
\n2. The exporter or producer that has provided a declaration or a certificate of
\norigin, shall provide a copy of these documents to its exporting Party’s customs
\nadministration upon request.
\n3. With respect to exports, each Party shall provide penalties for false
\ndeclarations, certification, or documentation related to origin submitted to a
\ncustoms administration by an exporter or producer in its territory.
\nArticle 4.15: Records
\nEach Party shall require that producers, exporters and importers in their
\nrespective territories maintain for a period of not less than 3 years after the date of
\nexportation or importation, as the case may be, all records relating to that
\nexportation or importation which are necessary to demonstrate that a good for
\nwhich a claim for tariff preference was made qualifies for preferential tariff
\ntreatment. 4-12
\nArticle 4.16: Verification of Origin
\n1. For the purposes of determining whether goods imported into the territory of
\na Party from the territory of another Party qualify as originating goods, the
\nimporting Party may, through its customs administration, verify any claims made for
\ntariff preference by means of:
\n(a) written requests for information addressed to the importer;
\n(b) written questions and requests for information addressed to the exporter
\nor producer in the territory of the exporting Party through the customs
\nadministrations of the exporting Party;
\n(c) requests to the customs administration of the exporting Party to verify
\nthe origin of the good; or
\n(d) such other procedures as the customs administrations of the Parties
\nmay agree.
\n2. If the mechanism established in Paragraph 1 fails to determine the origin of
\na good, the importing Party may request, through the customs administration of the
\nexporting Party, to visit the premises of the exporter or producer in the territory of
\nthe exporting Party:
\n(a) to review records referring to origin; and
\n(b) to observe the facilities used in production of the goods.
\n3. The requesting Party shall, through its customs administration:
\n(a) ensure that any request made to the customs administration of the
\nexporting Party is sufficiently material to warrant the request and is
\naccompanied by sufficient information to identify the particular goods
\nand the exporter or producer of those goods; and
\n(b) specify a period of 60 days from the date the written questions or
\nrequest was sent to the exporter or producer to fully respond to the
\nquestions or request.
\n4. The Parties agree to facilitate requests for assistance through their customs
\nadministrations under this Article within 10 days of receipt of the request. 4-13
\nArticle 4.17: Decision on Origin
\n1. If as a result of questions put or visits made to the exporter or producer the
\nrequesting Party is satisfied the goods about which those questions were put or
\nvisits made are originating goods pursuant to the provisions of this Chapter, it shall
\npermit preferential access for those goods.
\n2. Preferential tariff treatment may be denied if:
\n(a) the goods do not or did not meet the requirements of this Chapter;
\n(b) the exporter or producer fails to respond fully to questions put by the
\ncustoms administration of the importing Party within 60 days of the date
\nof the request of the importing Party, or such other extended period of
\ntime as may be specified by the customs administrations of the
\nimporting Party, but not more than an additional 30 days;
\n(c) the requested customs administration is, for any reason, unable to
\ncomply with a request from the customs administration of the importing
\nParty to verify the origin of goods and advises the requesting customs
\nadministration of this inability or, fails to respond to a request within 90
\ndays; or
\n(d) the exporter or producer does not agree to a visit by the customs
\nadministration of the importing Party within 30 days.
\n3. In the event preferential tariff treatment is denied the importing Party shall
\nensure that its customs administration provides in writing to the exporter, the
\nimporter or producer, as the case may be, full reasons for that decision.
\n4. Where verifications by a Party indicate a pattern of conduct by an exporter
\nor a producer of false or unsupported representations that a good imported into its
\nterritory qualifies as an originating good, the Party may withhold preferential tariff
\ntreatment to identical goods exported or produced by such a person until it is
\nsatisfied that the exporter or producer is no longer making false or unsupported
\nrepresentations as to origin.
\nArticle 4.18: Costs Incurred
\n1. The ordinary costs of complying with a request for verification will be borne
\nby:
\n(a) the requested Party; or 4-14
\n(b) the Party which visits an exporter or producer, as the case may be, in
\nthe territory of the other Party.
\n2. Where extraordinary costs or doubts in determining costs arise, these shall
\nbe resolved by mutual agreement between Parties. 4-15
\nAnnex 4.A
\nGoods classified in the following Harmonized System subheadings may be
\nconsidered remanufactured goods, except for those designed principally for use in
\nautomotive goods of Harmonized System headings or subheadings 8702, 8703,
\n8704.21, 8704.31, 8704.32, 8706 and 8707:
\n8408.10
\n8408.20
\n8408.90
\n8409.10
\n8409.91
\n8409.99
\n8412.21
\n8412.29
\n8412.39
\n8412.90
\n8413.30
\n8413.50
\n8413.60
\n8413.91
\n8414.30
\n8414.80
\n8414.90
\n8483.10
\n8483.30
\n8483.40
\n8483.50
\n8483.60
\n8483.90
\n8503.00
\n8511.40
\n8511.50
\n8526.10
\n8537.10
\n8542.21 4-16
\nAnnex 4.B
\nGoods classified in the following Harmonized System subheadings are goods to
\nwhich Article 4.12 (Outward Processing) applies:
\n4014.90
\n7015.40
\n7019.90
\n8207.19
\n8409.99
\n8412.80
\n8414.59
\n8414.80
\n8414.90
\n8415.81
\n8415.90
\n8421.21
\n8421.99
\n8422.30
\n8422.40
\n8423.82
\n8423.89
\n8423.90
\n8424.30
\n8424.90
\n8437.90
\n8441.10
\n8443.90
\n8451.29
\n8462.31
\n8462.99
\n8467.22
\n8467.91
\n8467.99
\n8471.60
\n8471.70
\n8471.80
\n8473.29
\n8473.30
\n8479.89
\n8479.90
\n8480.20
\n8480.49
\n8480.79 4-17
\n8483.50
\n8484.20
\n8501.20
\n8501.31
\n8501.32
\n8501.33
\n8501.34
\n8501.53
\n8501.61
\n8501.62
\n8502.11
\n8502.12
\n8502.13
\n8502.20
\n8502.31
\n8502.39
\n8502.40
\n8504.21
\n8504.22
\n8504.31
\n8504.32
\n8504.33
\n8504.34
\n8504.40
\n8504.90
\n8505.11
\n8505.19
\n8506.90
\n8507.40
\n8509.20
\n8509.90
\n8511.20
\n8511.80
\n8514.10
\n8514.30
\n8514.40
\n8514.90
\n8515.11
\n8515.19
\n8515.21
\n8515.31
\n8515.80
\n8515.90
\n8516.21
\n8516.33
\n8518.29 4-18
\n8518.50
\n8520.32
\n8520.33
\n8520.39
\n8520.90
\n8522.10
\n8522.90
\n8523.30
\n8524.60
\n8525.10
\n8525.30
\n8526.10
\n8526.91
\n8526.92
\n8531.90
\n8535.29
\n8535.40
\n8536.41
\n8536.49
\n8539.29
\n8539.32
\n8539.39
\n8539.41
\n8539.49
\n8539.90
\n8540.72
\n8540.79
\n8540.89
\n8542.21
\n8542.29
\n8543.20
\n8543.30
\n8543.90
\n8544.41
\n8545.20
\n8546.10
\n8548.10
\n8714.93
\n8714.96
\n8803.30
\n8905.20
\n9001.10
\n9001.50
\n9006.10
\n9008.30
\n9010.90 4-19
\n9013.80
\n9017.20
\n9017.80
\n9018.11
\n9027.90
\n9031.10
\n9031.80
\n9032.90
\n9033.00
\n9403.70
\n9403.80
\n9405.50 4-20
\nAnnex 4.C
\nDECLARATION AS TO ORIGIN
\nI [state name and position] being the
\n[producer and exporter][producer][exporter] (insert only that which applies) hereby
\ndeclare that the goods enumerated on this invoice are originating from [Brunei
\nDarussalam] [Chile] [New Zealand] [Singapore] (insert only that which applies) in
\nthat they comply with the provisions of Article 4.13 of the Trans-Pacific Strategic
\nEconomic Partnership Agreement entered into among Brunei Darussalam, Chile,
\nNew Zealand and Singapore.
\nObservations:
\nSignature Date: 4-21
\nAnnex 4.D
\nTRANS-PACIFIC STRATEGIC ECONOMIC PARTNERSHIP AGREEMENT
\nCERTIFICATE OF ORIGIN
\nIssuing Number:
\n1: Exporter (Name and Address)
\nTax ID No:
\n2: Producer (Name and Address)
\nTax ID No:
\n3: Importer (Name and Address)
\n4. Description of Good(s) 5. HS No. 6. Preference
\nCriterion
\n7. Producer 8. Regional
\nValue
\nContent
\n9. Country of
\nOrigin<\/p>\n
10: Certification of Origin
\nI certify that:
\nz The information on this document is true and accurate and I assume the responsibility for providing such representations. I
\nunderstand that I am liable for any false statements or material omissions made on or in connection with this document.
\nz I agree to maintain and present upon request, documentation necessary to support this certificate, and to inform, in writing,
\nall persons to whom the certificate was given of any changes that could affect the accuracy or validity of this certificate.
\nz The goods originated in the territory of the Parties, and comply with the origin requirements specified for those goods in
\nTRANS-PACIFIC STRATEGIC ECONOMIC PARTNERSHIP AGREEMENT, and there has been no further production or
\nany other operation outside the territories of the Parties in accordance with Article 4.11 of the Agreement.
\nAuthorised Signature<\/p>\n
Company Name
\nName (Print or Type) Title
\nDate (DD\/MM\/YY) Telephone \/ Fax \/E-mail 4-22
\nTRANS-PACIFIC STRATEGIC ECONOMIC PARTNERSHIP AGREEMENT
\nCERTIFICATE OF ORIGIN INSTRUCTIONS
\nPursuant to Article 4.13, for the purposes of obtaining preferential tariff treatment this document must be completed legibly and in full by
\nthe exporter or producer and be in the possession of the importer at the time the declaration is made. Please print or type:
\nIssuing Number: Fill in the serial number of the certificate of origin.
\nField 1: State the full legal name, address (including country) and legal tax identification number of the exporter. The legal tax
\nidentification number in Chile is the Unique Tax Number (\u201cRol Unico Tributario\u201d). The tax identification number is not
\napplicable for Brunei Darussalam, New Zealand and Singapore.
\nField 2: If one producer, state the full legal name, address (including country, telephone number, fax number and email address) and
\nlegal tax identification number, as defined in Field 1, of said producer. (Tax ID is not applicable to Brunei Darussalam,
\nNew Zealand and Singapore.) If more than one producer is included on the Certificate, state “Various” and attach a list of
\nall producers, including their legal name, address (including country, telephone number, fax number and email address) and
\nlegal tax identification number, cross referenced to the good or goods described in Field 4. If you wish this information to
\nbe confidential, it is acceptable to state ” Available to Customs upon request”. If the producer and the exporter are the
\nsame, complete field with “SAME”. If the producer is unknown, it is acceptable to state “UNKNOWN”.
\nField 3: State the full legal name, address (including country) as defined in Field 1, of the importer; if the importer is not known,
\nstate “UNKNOWN”; if multiple importers, state “VARIOUS”.
\nField 4: Provide a full description of each good. The description should be sufficient to relate it to the invoice description and to the
\nHarmonized System (HS) description of the good.
\nField 5: For each good described in Field 4, identify the HS tariff classification to six digits.
\nField 6: For each good described in Field 4, state which criterion (A through C) is applicable. The rules of origin are contained in
\nChapter 4 and Annex II of the Agreement. NOTE: In order to be entitled to preferential tariff treatment, each good must
\nmeet at least one of the criteria below.
\nPreference Criteria
\nA The good is “wholly obtained or produced entirely” in the territory of one or more of the Parties, as referred to in Article 4.1 and
\n4.2 of the Agreement. NOTE: The purchase of a good in the territory does not necessarily render it “wholly obtained or
\nproduced”.
\nB The good is produced entirely in the territory of one or more of the Parties exclusively from originating materials. All
\nmaterials used in the production of the good must qualify as “originating” by meeting the rules of Chapter 4 of the Agreement.
\nC The good is produced entirely in the territory of one or more of the Parties and satisfies the specific rule of origin set out in
\nAnnex II of the Agreement (Specific Rules of Origin) that applies to its tariff classification as referred to in Article 4.2, or the
\nprovisions under Article 4.12 of the Agreement. The rule may include a tariff classification change, regional value-content
\nrequirement and a combination thereof, or specific process requirement. The good must also satisfy all other applicable
\nrequirements of Chapter 4 (Rules of Origin) of the Agreement.
\nField 7: For each good described in Field 4, state “YES” if you are the producer of the good. If you are not the producer of the good,
\nstate “NO” followed by (1) or (2), depending on whether this certificate was based upon: (1) your knowledge of whether the
\ngood qualifies as an originating good; (2) Issued by the producer’s written Declaration of Origin, which is completed and
\nsigned by the producer and voluntarily provided to the exporter by the producer.
\nField 8: For each good described in Field 4, where the good is subject to a regional value content (RVC) requirement stipulated in the
\nAgreement, indicate the percentage.
\nField 9: Identify the name of the country. (“BN” for all goods originating from Brunei Darussalam, “CL” for all goods originating
\nfrom Chile, “NZ” for all goods originating from New Zealand, “SG” for all goods originating from Singapore)
\nField 10: This field must be completed, signed and dated by the exporter or producer. The date must be the date the Certificate was
\ncompleted and signed.5-1
\nCHAPTER 5
\nCUSTOMS PROCEDURES
\nArticle 5.1: Definitions
\nFor the purposes of this Chapter:
\ncustoms law means any legislation administered, applied or enforced by the
\ncustoms administration of a Party;
\ncustoms offence means any breach or attempted breach of customs law;
\ncustoms procedures means the treatment applied by the customs administration
\nof each Party to goods, which are subject to customs control.
\nArticle 5.2: Objectives
\nThe objectives of this Chapter of the Agreement are to:
\n(a) ensure predictability, consistency and transparency in the application of
\ncustoms laws and other customs administrative policies of the Parties;
\n(b) ensure efficient, economical administration of customs procedures, and
\nthe expeditious clearance of goods;
\n(c) facilitate trade among the Parties;
\n(d) apply simplified customs procedures; and
\n(e) promote cooperation among the customs administrations.
\nArticle 5.3: Scope
\nThis Chapter shall apply, in accordance with each Party’s respective
\ninternational obligations and customs law, to customs procedures applied to goods
\ntraded among the Parties. 5-2
\nArticle 5.4: Customs Procedures and Facilitation
\n1. Customs procedures of the Parties shall, where possible and to the extent
\npermitted by their respective customs law, conform with the standards and
\nrecommended practices of the World Customs Organisation, including the
\nprinciples of the International Convention on the Simplification and Harmonisation
\nof Customs Procedures.
\n2. Each Party shall ensure that its customs procedures and practices are
\npredictable, consistent, transparent and facilitate trade.
\n3. The customs administrations of the Parties shall periodically review their
\ncustoms procedures with a view to their further simplification and the development
\nof further mutually beneficial arrangements to facilitate trade.
\nArticle 5.5: Customs Cooperation
\n1. To the extent permitted by their domestic law, the customs administrations
\nof the Parties may, as they deem fit, assist each other, in relation to originating
\ngoods, by providing information on the following:
\n(a) the implementation and operation of this Chapter;
\n(b) the movement of goods among the Parties;
\n(c) investigation and prevention of prima facie customs offences;<\/p>\n
(d) developing and implementing customs best practice and risk
\nmanagement techniques;
\n(e) simplifying and expediting customs procedures;
\n(f) advancing technical skills and the use of technology;
\n(g) application of the Customs Valuation Agreement; and
\n(h) additional assistance in respect to other matters.
\n2. Where a Party providing information to another Party in accordance with this
\nChapter designates the information as confidential, the other Party shall maintain
\nthe confidentiality of the information. 5-3
\nArticle 5.6: Customs Valuation
\nThe Parties shall determine the customs value of goods traded among them
\nin accordance with the provisions of Article VII of GATT 1994 and the Customs
\nValuation Agreement.
\nArticle 5.7: Advance Rulings
\n1. Each Party, through its customs administration, shall provide in writing
\nadvance rulings in respect of the tariff classification and origin of goods and
\nwhether a good qualifies for entry free of customs duty in accordance with
\nArticle 3.5 (Goods Re-entered After Repair or Alteration) (hereinafter referred to as
\n\u201cadvance rulings\u201d), to a person described in Subparagraph 2(a).
\n2. Each Party shall adopt or maintain procedures for advance rulings, which
\nshall:
\n(a) provide that an importer in its territory or an exporter or producer in the
\nterritory of another Party may apply for an advance ruling before the
\nimportation of goods in question;
\n(b) require that an applicant for an advance ruling provide a detailed
\ndescription of the goods and all relevant information needed to issue an
\nadvance ruling;
\n(c) provide that its customs administration may, at any time during the
\ncourse of issuing an advance ruling, request that the applicant provide
\nadditional information within a specified period;
\n(d) provide that any advance ruling be based on the facts and
\ncircumstances presented by the applicant, and any other relevant
\ninformation in the possession of the decision-maker; and
\n(e) provide that an advance ruling be issued to the applicant expeditiously,
\nor in any case within 60 days of the receipt of all necessary information.
\n3. A Party may reject requests for an advance ruling where the additional
\ninformation requested by it in accordance with Subparagraph 2(c) is not provided
\nwithin a specified time.
\n4. Subject to Paragraph 5, each Party shall apply an advance ruling to all
\nimportations of goods described in that ruling imported into its territory within
\n3 years of the date of that ruling, or such other period as required by that Party’s
\nlaws. 5-4
\n5. A Party may modify or revoke an advance ruling upon a determination that
\nthe ruling was based on an error of fact or law, the information provided is false or
\ninaccurate, if there is a change in domestic law consistent with this Agreement, or
\nthere is a change in a material fact, or circumstances on which the ruling is based.
\n6. Subject to the confidentiality requirements of a Party\u2019s domestic law, each
\nParty shall publish its advance rulings.
\n7. Where an importer claims that the treatment accorded to an imported good
\nshould be governed by an advanced ruling, the customs administration may
\nevaluate whether the facts and circumstances of the importation are consistent
\nwith the facts and circumstances upon which an advanced ruling was based.
\n8 The importing Party may apply measures as provided in Article 5.12.
\nArticle 5.8: Review and Appeal
\n1. Each Party shall ensure that the importers in its territory have access to:
\n(a) administrative review independent of the official or office that issued the
\ndetermination subject to review; and
\n(b) judicial review of the determination taken at the final level of
\nadministrative review, in accordance with the Party’s domestic law.
\n2. Notice of the decision on appeal shall be given to the appellant and the
\nreasons for such decision shall be provided in writing.
\n3. The level of administrative review may include any authority supervising the
\ncustoms administration.
\nArticle 5.9: Consultation
\nThe customs administrations of the Parties will encourage consultation with
\neach other regarding significant customs issues that affect goods traded among
\nthe Parties. 5-5
\nArticle 5.10: Paperless Trading
\n1. The customs administrations shall each endeavour to provide an electronic
\nenvironment that supports business transactions between it and its trading
\ncommunities.
\n2. In implementing initiatives that provide for paperless trading, the customs
\nadministrations of the Parties shall take into account the methods developed in
\nAPEC and the World Customs Organisation.
\nArticle 5.11: Express Consignments
\nEach Party shall ensure efficient clearance of all shipments, while maintaining
\nappropriate control and customs selection. In the event that a Party’s existing
\nsystem does not ensure efficient clearance, it should adopt procedures to expedite
\nexpress consignments to:
\n(a) provide for pre-arrival processing of information related to express
\nconsignments;
\n(b) permit the submission of a single document covering all goods
\ncontained in a shipment transported by the express shipment company
\nthrough electronic means if possible; and
\n(c) minimise, to the extent possible, the documentation required for the
\nrelease of express consignments.
\nArticle 5.12: Penalties
\nEach Party shall adopt or maintain measures that provide for the imposition
\nof civil, criminal or administrative penalties, whether solely or in combination, for
\nviolations of its customs laws consistent with the provisions of this Chapter.
\nArticle 5.13: Risk Management<\/p>\n
1. The Parties shall administer customs procedures so as to facilitate the
\nclearance of low-risk goods and focus on high-risk goods. To enhance the flow of
\ngoods across their borders the customs administrations shall regularly review
\nthese procedures.
\n2. Where a customs administration deems that the inspection of goods is not
\nnecessary to authorise clearance of the goods from customs control, the Party
\nshall endeavour to provide a single point for the documentary or electronic
\nprocessing of all imports and exports.5-6
\nArticle 5.14: Release of Goods
\nEach Party shall adopt or maintain procedures allowing, to the greatest
\nextent possible, goods to be released:
\n(a) within 48 hours of arrival; and
\n(b) at the point of arrival, without temporary transfer to warehouses or other
\nlocations.
\nArticle 5.15: Enquiry Points
\nEach Party shall designate one or more enquiry points to address enquires
\nfrom interested persons concerning customs matters, and shall make available on
\nthe Internet or in print form information concerning procedures for making such
\nenquires.
\nArticle 5.16: Confidentiality
\nNothing in this Chapter shall be construed to require any Party to furnish or
\nallow access to confidential information pursuant to this Chapter the disclosure of
\nwhich it considers would:
\n(a) be contrary to the public interest as determined by its legislation;
\n(b) be contrary to any of its legislation including but not limited to those
\nprotecting personal privacy or the financial affairs and accounts of
\nindividual customers of financial institutions;
\n(c) impede law enforcement; or
\n(d) prejudice the competitive position of the person providing the
\ninformation. 6-1
\nCHAPTER 6
\nTRADE REMEDIES
\nArticle 6.1: Global Safeguards
\n1. Nothing in this Agreement affects the rights and obligations of the Parties
\nunder Article XIX of GATT 1994 and the Safeguards Agreement or any
\namendments or provisions that supplement or replace them.
\n2. This Agreement does not confer any additional rights or obligations on the
\nParties with regard to actions taken pursuant to Article XIX of GATT 1994 and the
\nSafeguards Agreement.
\n3. As a courtesy, a Party shall advise the other Parties of a safeguard action
\non initiation of an investigation and the reasons for it.
\nArticle 6.2: Antidumping and Countervailing Duties
\n1. Nothing in this Agreement affects the rights and obligations of the Parties
\nunder Article VI of GATT 1994, the Agreement on Implementation of Article VI of
\nthe General Agreement on Tariffs and Trade 1994 which is part of the WTO
\nAgreement (Antidumping Agreement) and the Agreement on Subsidies and
\nCountervailing Measures which is part of the WTO Agreement (SCM Agreement)
\nwith regard to the application of antidumping and countervailing duties or any
\namendments or provisions that supplement or replace them.
\n2. This Agreement does not confer any additional rights or obligations on the
\nParties with regard to actions taken pursuant to Article VI of GATT 1994, the
\nAntidumping Agreement and the SCM Agreement. 7-1
\nCHAPTER 7
\nSANITARY AND PHYTOSANITARY MEASURES
\nArticle 7.1: Definitions
\n1. For the purposes of this Chapter:
\nSPS Agreement means the Agreement on the Application of Sanitary and
\nPhytosanitary Measures, which is part of the WTO Agreement.
\n2. The definitions in Annex A of the SPS Agreement are incorporated into this
\nChapter and shall form part of this Chapter, mutatis mutandis.
\n3. The relevant definitions developed by the international organisations
\nInternational Office of Epizootics (OIE), International Plant Protection Convention
\n(IPPC), and Codex Alimentarius Commission apply in the implementation of this
\nChapter.
\nArticle 7.2: Objectives
\nThe objectives of this Chapter are to:
\n(a) uphold and enhance implementation of the SPS Agreement and
\napplicable international standards, guidelines and recommendations
\ndeveloped by relevant international organizations (OIE, IPPC and Codex
\nAlimentarius Commission);
\n(b) expand trade opportunities through facilitation of trade among the
\nParties through seeking to resolve trade access issues, while protecting
\nhuman, animal or plant life or health in the territory of the Parties;
\n(c) provide a means to improve communication, cooperation and resolution
\nof sanitary and phytosanitary issues; and
\n(d) establish a mechanism for the recognition of equivalence of sanitary and
\nphytosanitary measures and regionalisation practices maintained by the
\nParties consistent with the protection of human, plant and animal life or
\nhealth. 7-2
\nArticle 7.3: Scope
\n1. This Chapter shall apply to all sanitary or phytosanitary measures of a Party
\nthat may, directly or indirectly, affect trade among the Parties.
\n2. Nothing in this Chapter or Implementing Arrangements shall limit the rights
\nor obligations of the Parties pursuant to the SPS Agreement.
\nArticle 7.4: Committee on Sanitary and Phytosanitary Matters
\n1. The Parties hereby establish a Committee on Sanitary and Phytosanitary
\nMatters (the Committee) which shall include representatives of the competent
\nauthorities of the Parties.<\/p>\n
2. The Committee shall meet within one year of the entry into force of this
\nAgreement and at least annually thereafter or as mutually determined by the
\nParties. The Committee shall establish its rules of procedure at its first meeting. It
\nshall meet in person, teleconference, video conference, or through any other
\nmeans, as mutually determined by the Parties. The Committee may also address
\nissues through correspondence.
\n3. The Committee may agree to establish technical working groups consisting
\nof expert-level representatives of the Parties, which shall identify and address
\ntechnical and scientific issues arising from this Chapter. When additional expertise
\nis needed, the membership of these groups need not be restricted to
\nrepresentatives of the Parties.
\n4. The Committee shall consider any matters relating to the implementation of
\nthe Chapter including:
\n(a) establishing, monitoring and reviewing work plans; and
\n(b) initiating, developing, adopting, reviewing and modifying Implementing
\nArrangements on technical matters which further elaborate the
\nprovisions of this Chapter in order to facilitate trade among the Parties.
\n5. The Implementing Arrangements referred to in Paragraph 4(b) shall include
\nthe following:
\n(a) Competent Authorities and Contact Points (Implementing Arrangement
\n1);
\n(b) Diseases and Pests for which Regionalisation Decisions can be Taken
\n(Implementing Arrangement 2); 7-3
\n(c) Criteria for Regionalisation Decisions (Implementing Arrangement 3);
\n(d) Recognition of Measures (Implementing Arrangement 4);
\n(e) Guidelines for Conducting an Audit (Implementing Arrangement 5);
\n(f) Certification (Implementing Arrangement 6);
\n(g) Import Checks (Implementing Arrangement 7); and
\n(h) Equivalence: Procedures for Determination (Implementing Arrangement
\n8).
\n6. Each Party responsible for the implementation of an Implementing
\nArrangement shall take all necessary actions to implement such Arrangement
\nwithin three months following its adoption, unless otherwise agreed by the relevant
\nParties.
\n7. The Committee shall report to the Commission on the implementation of this
\nChapter.
\nArticle 7.5: Competent Authorities and Contact Points
\n1. The competent authorities responsible for the implementation of the
\nmeasures referred to in this Chapter are listed in Implementing Arrangement 1.
\nThe contact points that have the responsibilities relating to notification are also set
\nout in Implementing Arrangement 1.
\n2. The Parties shall inform each other of any significant changes in the
\nstructure, organisation and division of the competency of its competent authorities
\nor contact points.
\nArticle 7.6: Adaptation to Regional Conditions
\n1. Where a Party has an area or part of its territory free of a disease or pest,
\nthe Parties may agree in accordance with Implementing Arrangement 3, to list this
\nstatus and the measures in place in Implementing Arrangement 2 to ensure that
\nthe disease or pest free status will be maintained in the event of an incursion.
\n2. In the event of an incursion of a disease or pest specified in Implementing
\nArrangement 2, the importing Party shall recognise the exporting Party\u2019s measures
\nspecified in Implementing Arrangement 2 for the purpose of facilitating trade
\namong the Parties. 7-4
\n3. The Parties may agree to list additional diseases or pests in Implementing
\nArrangement 2, in accordance with the criteria specified in Implementing
\nArrangement 3.
\n4. Where one of the Parties considers that it has a special status with respect
\nto a specific disease or pest, it may request recognition of this status. The Party
\nconcerned may also request specific guarantees in respect of imports of animals
\nand animal products, plants and plant products, and other related goods
\nappropriate to the agreed status. The guarantees for specific diseases and pests
\nshall be specified in Implementing Arrangement 4.
\nArticle 7.7: Equivalence
\n1. Equivalence may be recognised by the Parties in relation to an individual
\nmeasure and\/or groups of measures and\/or systems applicable to a sector or part
\nof a sector as specified in Implementing Arrangement 4. The equivalence
\ndeterminations recorded in Implementing Arrangement 4 shall be applied to trade
\namong the relevant Parties in animals and animal products, plants and plant
\nproducts, or as appropriate to related goods.
\n2. The recognition of equivalence requires an assessment and acceptance of:
\n(a) the legislation, standards and procedures, as well as the programmes in
\nplace to allow control and to ensure domestic and importing country
\nrequirements are met;
\n(b) the documented structure of the competent authority(ies), their powers,
\ntheir chain of command, their modus operandi and the resources
\navailable to them; and
\n(c) the performance of the competent authority in relation to the control and
\nassurance programmes.
\nIn this assessment, the Parties shall take account of experience already acquired.
\n3. The importing Party shall accept the sanitary or phytosanitary measure of
\nthe exporting Party as equivalent if the exporting Party objectively demonstrates
\nthat its measure achieves the importing Party’s appropriate level of protection. In
\nreaching a determination of whether a sanitary or phytosanitary measure applied
\nby an exporting Party achieves the importing Party’s appropriate level of protection,
\nthose Parties shall follow the process specified in Implementing Arrangement 8.
\nThe Parties may add to or amend the steps in the process in the future as the
\nParties\u2019 experience in regard to the determination of equivalence process
\nincreases. 7-5
\n4. Where equivalence has not been recognised or where an application is
\npending, trade shall take place under the conditions required by the importing Party
\nto meet its appropriate level of protection. These conditions shall be as set out in
\nImplementing Arrangement 4 where such conditions have been agreed. If
\nconditions have not been agreed and incorporated in Implementing Arrangement 4,
\nthen the conditions to be met by the exporting Party shall be those specified by the
\nimporting Party. The exporting Party may agree to meet the importing Party’s
\nconditions, without affecting the result of the process set out in Implementing
\nArrangement 8.
\n5. Implementing Arrangement 4 may list :
\n(a) those individual measures and\/or groups of measures and\/or systems
\napplicable to a sector or part of a sector, for which the respective
\nsanitary or phytosanitary measures are recognised as equivalent for
\ntrade purposes;
\n(b) actions to enable the assessment of equivalence to be completed in
\naccordance with the process set out in Implementing Arrangement 8,
\nand by the date indicated in Implementing Arrangement 4, or if not
\nindicated, as specified by the importing Party; or
\n(c) the specific guarantees related to recognition of special status provided
\nfor Article 7.6(4); and
\n(d) may also list those sectors, or parts of sectors, for which the Parties
\napply differing sanitary or phytosanitary measures and have not
\nconcluded the determination provided for in Paragraph 3.
\n6. Unless otherwise agreed among the relevant Parties, an official sanitary or
\nphytosanitary certificate will be required for each consignment of animals and
\nanimal products, plants and plant products, or other related goods intended for
\nimport and for which equivalence has been recognised. The model attestation for
\nsuch certificates will be prescribed in Implementing Arrangement 6. The Parties
\nmay jointly determine principles or guidelines for certification, which shall be
\nincluded in Implementing Arrangement 6.
\nArticle 7.8: Verification
\n1. In order to maintain confidence in the effective implementation of the
\nprovisions of this Chapter, each Party shall have the right to carry out audit and
\nverification of the procedures of the exporting Party, which may include an
\nassessment of all or part of the competent authorities’ total control programme,
\nincluding, where appropriate: 7-6
\n(a) reviews of the inspection and audit programmes; and
\n(b) on-site checks.
\nThese procedures shall be carried out in accordance with the provisions of
\nImplementing Arrangement 5.
\n2. Each Party shall also have the right to carry out import checks for the
\npurposes of implementing sanitary and phytosanitary measures on consignments
\non importation, consistent with Article 7.9, the results of which form part of the
\nverification process.
\n3. With the consent of the importing and exporting Parties, a Party may:
\n(a) share the results and conclusions of its audit and verification procedures
\nand checks with non-Parties; or
\n(b) use the results and conclusions of the audit and verification procedures
\nand checks of non-Parties.
\nArticle 7.9: Import Checks
\n1. The import checks applied to imported animals and animal products, plants
\nand plant products, or other related goods shall be based on the risk associated
\nwith such importations. They shall be carried out without undue delay and with a
\nminimum effect on trade between the Parties.
\n2. The frequencies of import checks on such importations shall be made
\navailable on request and where set out in Implementing Arrangement 7 shall be
\napplied accordingly. The Parties may amend the frequencies, within their
\nresponsibilities, as appropriate, as a result of progress made in accordance with
\nImplementing Arrangement 4, or as a result of other actions or consultations
\nprovided for in this Chapter.
\n3. In the event that the import checks reveal non-conformity with the relevant
\nstandards and\/or requirements, the action taken by the importing Party should be
\nbased on an assessment of the risk involved. Wherever possible, the importer or
\ntheir representative shall be given access to the consignment and the opportunity
\nto contribute any relevant information to assist the importing Party in taking a final
\ndecision. 7-7
\nArticle 7.10: Notifications
\n1. The Parties shall notify each other in writing through the contacts points set
\nout in Implementing Arrangement 1 of:
\n(a) significant changes in health status including the presence and evolution
\nof diseases or pests in Implementing Arrangement 2, in a timely and
\nappropriate manner so as to ensure continued confidence in the
\ncompetence of the Party with respect to the management of any risks of
\ntransmission to one of the other Parties which may arise as a
\nconsequence;
\n(b) scientific findings of importance with respect to diseases or pests which
\nare not in Implementing Arrangement 2 or new diseases or pests
\nwithout delay; and
\n(c) any additional measures beyond the basic requirements of their
\nrespective sanitary or phytosanitary measures taken to control or
\neradicate diseases or pests or to protect public health, and any changes
\nin preventive policies, including vaccination policies.
\n2. In cases of serious and immediate concern with respect to human, animal or
\nplant life or health, immediate oral notification shall be made to the contact points
\nand written confirmation should follow within 24 hours.
\n3. Where a Party has serious concerns regarding a risk to human, animal or
\nplant life or health, consultations regarding the situation shall, on request, take
\nplace as soon as possible, and in any case within 13 days unless otherwise agreed
\nbetween the Parties. Each Party shall endeavour in such situations to provide all
\nthe information necessary to avoid a disruption in trade, and to reach a mutually
\nacceptable solution.
\n4. Where in the case of products subject to sanitary or phytosanitary
\nmeasures, there is non-conformity with the relevant standards and\/or
\nrequirements, the importing Party shall notify the exporting Party as soon as
\npossible of the non-conformity as set out in Implementing Arrangement 7.
\nArticle 7.11: Provisional Measures
\nWithout prejudice to Article 7.10, and in particular Article 7.10(3), any Party
\nmay, on serious human, animal or plant life or health grounds, adopt provisional
\nmeasures necessary for the protection of human, animal or plant life or health.
\nThese measures shall be notified within 24 hours to the other Parties and, on
\nrequest, consultations regarding the situation shall be held within 13 days unless 7-8
\notherwise agreed by the Parties. The Parties shall take due account of any
\ninformation provided through such consultations.
\nArticle 7.12: Exchange of Information
\n1. The Parties, through the contacts points set out in Implementing
\nArrangement 1, shall exchange information relevant to the implementation of this
\nChapter on a uniform and systematic basis, to provide assurance, engender
\nmutual confidence and demonstrate the efficacy of the programmes controlled.
\nWhere appropriate, achievements of these objectives may be enhanced by
\nexchanges of officials.
\n2. The information exchange on changes in the respective sanitary or
\nphytosanitary measures, and other relevant information, shall include:
\n(a) opportunity to consider proposals for changes in regulatory standards or
\nrequirements which may affect this Chapter in advance of their
\nfinalisation;
\n(b) briefing on current developments affecting trade; and
\n(c) information on the results of the verification procedures provided for in
\nArticle 7.8.
\n3. The Parties may provide for the sharing of scientific papers or data to
\nrelevant scientific forums on sanitary or phytosanitary measures and related
\nmatters.
\nArticle 7.13: Technical Consultation
\n1. A Party may initiate consultations with another Party with the aim of
\nresolving issues on the application of measures covered in this Chapter or
\ninterpretation of the provisions of this Chapter.
\n2. Where a Party requests consultations, these consultations shall take place
\nas soon as practicable.
\n3. If a Party considers it necessary, it may request that the Committee facilitate
\nsuch consultations. The Committee may refer the issues to an ad hoc working
\ngroup for further discussion. The ad hoc working group may make a
\nrecommendation to the Committee on the resolution of the issues. The Committee
\nshall discuss the recommendation with a view to resolving the issue without undue
\ndelay. 7-9
\n4. Such consultations are without prejudice to the rights and obligations of the
\nParties under Chapter 15 (Dispute Settlement).
\nArticle 7.14: Cooperation
\n1. The Parties shall explore opportunities for further cooperation and
\ncollaboration on sanitary or phytosanitary matters of mutual interest consistent with
\nthe provisions of this Chapter.
\n2. The Parties acknowledge that the provisions of Chapter 16 (Strategic
\nPartnership) and its accompanying Implementing Arrangement relating to primary
\nindustry matters will be of relevance to the implementation of this Chapter.
\n3. The Parties agree to cooperate together to facilitate the implementation of
\nthis Chapter, and in particular the development of this Chapter\u2019s Implementing
\nArrangements. 8-1
\nCHAPTER 8
\nTECHNICAL BARRIERS TO TRADE
\nArticle 8.1: Definitions
\n1. For the purposes of this Chapter:
\nequivalence of technical regulations means that one or more of the Parties
\naccepts that the technical regulations of another Party fulfil the legitimate
\nobjectives of its own regulations;
\nregulatory authority means the authority that is responsible for preparing or
\nadopting technical regulations and conformity assessment procedures applicable
\nto goods;
\ntechnical regulations also includes standards that regulatory authorities
\nrecognise as meeting the mandatory requirements related to performance based
\nregulation;
\nTBT Agreement means the Agreement on Technical Barriers to Trade, which is
\npart of the WTO Agreement.
\n2. The definitions in Annex I of the TBT Agreement are incorporated into this
\nChapter and shall form part of this Chapter, mutatis mutandis.
\nArticle 8.2: Objectives<\/p>\n
The objectives of this Chapter are to increase and facilitate trade through
\nfurthering the implementation of the TBT Agreement and building on the work of
\nAPEC on standards and conformance. Wherever possible, the Parties shall aim to
\nreduce compliance costs by:
\n(a) eliminating unnecessary technical barriers to trade in goods among the
\nParties;
\n(b) enhancing cooperation among the Parties\u2019 regulatory agencies
\nresponsible for standards, technical regulations and conformity
\nassessment procedures applicable to goods; and
\n(c) providing a framework to address the impact of technical barriers to
\ntrade. 8-2
\nArticle 8.3: Scope
\n1. This Chapter applies to all standards, technical regulations and conformity
\nassessment procedures that may, directly or indirectly, affect the trade in goods
\namong the Parties, except as provided in Paragraphs 2 and 3.
\n2. This Chapter does not apply to technical specifications prepared by
\ngovernmental entities for production or consumption requirements of such entities
\nwhich are covered by Chapter 11 (Government Procurement).
\n3. This Chapter does not apply to sanitary and phytosanitary measures which
\nare covered by Chapter 7 (Sanitary and Phytosanitary Measures).
\n4. Nothing in this Chapter shall prevent a Party from adopting or maintaining
\ntechnical regulations or standards, in accordance with its rights and obligations
\nunder the TBT Agreement necessary to fulfil a legitimate objective taking into
\naccount the risks non fulfilment would create. This shall include technical
\nregulations necessary to ensure its national security requirements, the prevention
\nof deceptive practices, the protection of human health or safety, animal or plant life
\nor health, or the environment.
\nArticle 8.4: Affirmation of the Agreement on Technical Barriers to Trade
\nThe Parties affirm their existing rights and obligations with respect to each
\nother under the TBT Agreement.
\nArticle 8.5: Origin
\n1. This Chapter applies to all goods traded among the Parties, regardless of
\nthe origin of those goods.
\n2. Notwithstanding Paragraph 1, a Party may give special consideration to
\ngoods of a non-Party through the application of a technical regulation, due to the
\nneed to avoid the introduction of costly surveillance procedures and as long as the
\ntechnical regulation is compatible with the TBT Agreement. This shall be notified
\nto the other Parties through the contact points established in Article 8.11(2).
\nArticle 8.6: Trade Facilitation
\n1. The Parties shall intensify their joint work in the field of standards, technical
\nregulations, and conformity assessment procedures with a view to facilitating
\naccess to each other\u2019s market. In particular, the Parties shall seek to identify
\ninitiatives among them that are appropriate for particular issues or sectors. Such 8-3
\ninitiatives may include cooperation on regulatory issues, such as harmonisation or
\nequivalence of technical regulations and standards, alignment with international
\nstandards, reliance on a supplier’s declaration of conformity, and use of
\naccreditation to qualify conformity assessment bodies, as well as cooperation
\nthrough mutual recognition.
\n2. Initiatives identified by the Parties shall be focused on the promotion of the
\nuse of international standards, transparency, exchange of information and reducing
\ncompliance costs.
\nArticle 8.7: International Standards
\n1. The Parties shall use international standards, or the relevant parts of
\ninternational standards, as a basis for their technical regulations and related
\nconformity assessment procedures where relevant international standards exist or
\ntheir completion is imminent, except when such international standards or their
\nrelevant parts are ineffective or inappropriate to fulfil legitimate objectives.
\n2. In this respect, the Parties shall apply the decision of the WTO Committee
\non Technical Barriers to Trade set out in G\/TBT\/1\/Rev.8, 23 May 2002, Section IX
\n“Decision of the Committee on Principles for the Development of International
\nStandards, Guides and Recommendations with relation to Articles 2, 5 and Annex
\n3 of the Agreement”.
\n3. The Parties shall cooperate with each other, where appropriate, in the
\ncontext of their participation in international standardising bodies to ensure that
\ninternational standards developed within such bodies that are likely to become a
\nbasis for technical regulations are trade facilitating and do not create unnecessary
\nobstacles to international trade.
\nArticle 8.8: Equivalency of Technical Regulations
\n1. Each Party shall give positive consideration to accepting as equivalent,
\ntechnical regulations of another Party, even if these regulations differ from its own,
\nprovided that those technical regulations produce outcomes that are equivalent to
\nthose produced by its own technical regulations in meeting its legitimate objectives
\nand achieving the same level of protection.
\n2. A Party shall, upon the request of another Party, explain the reasons why it
\nhas not accepted a technical regulation of that Party as equivalent. 8-4
\nArticle 8.9: Conformity Assessment Procedures
\n1. The Parties recognise that a broad range of mechanisms exist to facilitate
\nthe acceptance of conformity assessment results, including:
\n(a) the importing Party\u2019s reliance on a supplier\u2019s declaration of conformity;
\n(b) unilateral recognition by one Party of the results of conformity
\nassessments performed in another Party\u2019s territory;<\/p>\n
(c) cooperative arrangements among conformity assessment bodies from
\neach other\u2019s territory;
\n(d) mutual recognition of conformity assessment procedures conducted by
\nbodies located in the territory of another Party;
\n(e) accreditation procedures for qualifying conformity assessment bodies;
\n(f) government designation of conformity assessment bodies; and
\n(g) devising solutions to increase administrative efficiency, that avoid
\nduplication and are cost effective.
\n2. The Parties shall intensify their exchange of information on the range of
\nmechanisms to facilitate the acceptance of conformity assessment results.
\n3. The Parties shall seek to ensure that conformity assessment procedures
\napplied among them facilitate trade by ensuring that they are no more restrictive
\nthan is necessary to provide an importing Party with confidence that products
\nconform with the applicable technical regulations, taking into account the risk that
\nnon-conformity would create.
\n4. Before accepting the results of a conformity assessment procedure, and to
\nenhance confidence in the continued reliability of each other\u2019s conformity
\nassessment results, the Parties may consult on such matters as the technical
\ncompetence of the conformity assessment bodies involved, as appropriate.
\n5. A Party shall, on the request of another Party, explain its reasons for not
\naccepting the results of a conformity assessment procedure performed in the
\nterritory of that other Party.
\n6. Each Party shall accredit, approve, license, or otherwise recognise
\nconformity assessment bodies in the territory of another Party on terms no less
\nfavourable than those it accords to conformity assessment bodies in its territory. If
\na Party accredits, approves, licenses or otherwise recognises a body assessing
\nconformity with a particular technical regulation or standard in its territory and it 8-5
\nrefuses to accredit, approve, license, or otherwise recognise a body assessing
\nconformity with that technical regulation or standard in the territory of another
\nParty, it shall, on request, explain the reasons for its refusal.
\n7. Where a Party declines a request from another Party to enter into
\nnegotiations on facilitating recognition in its territory of the results of conformity
\nassessment procedures conducted by bodies in the territory of either of the other
\nParties, it shall, on request, explain its reasons.
\nArticle 8.10: Transparency
\n1. In order to enhance the opportunity for persons to provide meaningful
\ncomments, a Party publishing a notice under Article 2.9 or 5.6 of the TBT
\nAgreement shall:
\n(a) include in the notice a statement describing the objective of the proposal
\nand the rationale for the approach the Party is proposing; and
\n(b) transmit the proposal electronically to the other Parties through the
\nenquiry point established under Article 10 of the TBT Agreement at the
\nsame time as it notifies WTO Members of the proposal pursuant to the
\nTBT Agreement.
\n2. Each Party should allow at least 60 days from the transmission under
\nParagraph 1(b) for persons and the other Parties to make comments in writing on
\nthe proposal.
\n3. Where a Party makes a notification under Article 2.10 or 5.7 of the TBT
\nAgreement, it shall at the same time transmit the notification to the other Parties,
\nelectronically, through the enquiry point referred to in Paragraph 1(b).
\nArticle 8.11: Technical Cooperation and Committee on Technical Barriers to
\nTrade
\n1. The Parties hereby establish the Committee on Technical Barriers to Trade
\n(the Committee), which shall comprise officials from the contact points of the
\nParties.
\n2. The Parties shall provide each other with the name of the governmental
\norganisation that shall be their contact point and the contact details of relevant
\nofficials on that organisation, including telephone, fax, email and other relevant
\ndetails. The Parties shall notify each other promptly of any change of their contact
\npoints or any amendments to the details of the relevant officials. 8-6
\n3. The Committee shall have the responsibility for implementing and
\nmonitoring the operation of this Chapter, and in particular:
\n(a) identifying priority sectors for enhanced cooperation;
\n(b) establishing work programmes in priority areas;
\n(c) coordinating participation in work programmes with interested persons
\nand organisations in the territories of the Parties;
\n(d) monitoring the work programmes;
\n(e) addressing any issue that a Party may raise related to the development,
\nadoption, application or enforcement of technical regulations and
\nconformity assessment procedures;
\n(f) enhancing cooperation in the development and improvement of
\ntechnical regulations and conformity assessment procedures;
\n(g) where appropriate, facilitating sectoral cooperation among governmental
\nand non-governmental accreditation agencies and conformity
\nassessment bodies in the Parties\u2019 territories;
\n(h) exchanging information on developments in non-governmental, regional
\nand multilateral forums engaged in activities related to standardisation,
\ntechnical regulations and conformity assessment procedures;
\n(i) taking any other steps the Parties consider will assist them in
\nimplementing the TBT Agreement and in facilitating trade in goods
\namong them;
\n(j) reviewing this Chapter in light of any developments under the TBT
\nAgreement, and developing recommendations for amendments to this
\nChapter in light of those developments; and
\n(k) reporting to the Commission on the implementation of this Chapter, as it
\nconsiders appropriate.
\n4. A Party shall, on request, give favourable consideration to any sectorspecific proposal another Party makes for further technical cooperation under this
\nChapter.
\n5. The Committee shall conduct meetings to promote and monitor the
\nimplementation and administration of this Chapter at least once a year, or more
\nfrequently on the request of one of the Parties, via teleconference, videoconference or any other means as mutually determined by the Parties.
\n6. Where a Party takes a measure to manage an immediate risk that it
\nconsiders goods covered by an Annex to this Chapter may pose to health, safety
\nor the environment, it shall notify the measure and the reasons for the imposition of
\nthe measure to the other Parties, with the time limit as specified in the
\nimplementing arrangements. 8-7
\nArticle 8.12: Technical Consultations
\n1. A Party may initiate technical consultations with another Party through the
\nrespective contact points with the aim of resolving any matter arising under this
\nChapter.
\n2. Unless the Parties mutually determine otherwise, the Parties shall hold
\ntechnical consultations within a reasonable period of time from the request for
\ntechnical consultations by email, teleconference, video-conference, or through any
\nother means, as mutually determined by the Parties. The Parties shall, from time
\nto time, stipulate in writing the length of time that they consider to be reasonable.
\n3. If a Party considers it necessary, it may request that the Committee facilitate
\nsuch technical consultations.
\n4. Such technical consultations are without prejudice to the rights and
\nobligations of the Parties under Chapter 15 (Dispute Settlement).
\nArticle 8.13: Annexes and Implementing Arrangements
\n1. The Parties, in accordance with Chapter 17 (Administrative and Institutional
\nProvisions), may conclude Annexes to this Chapter setting out agreed principles
\nand procedures relating to technical regulations and conformity assessment
\napplicable to trade among them.
\n2. The Parties, in accordance with Article 8.11, may develop Implementing
\nArrangements setting out details for the implementation of Annexes referred to in
\nParagraph 1, or arrangements made in relation to any work programmes
\nestablished under Article 8.11.
\n3. The Parties shall seek to incorporate any existing arrangements concerning
\ntechnical regulations and conformity assessment procedures that are specifically
\napplicable to trade between two or more of the Parties into Annexes and
\nImplementing Arrangements. 9-1
\nCHAPTER 9
\nCOMPETITION POLICY
\nArticle 9.1: Objectives
\n1. The Parties recognise the strategic importance of creating and maintaining
\nopen and competitive markets that promote economic efficiency and consumer
\nwelfare.
\n2. To this end each Party is committed to reducing and removing impediments
\nto trade and investment including through:
\n(a) application of competition statutes to all forms of commercial activity,
\nincluding both private and public business activities; and
\n(b) application of competition statutes in a manner that does not
\ndiscriminate between or among economic entities, nor between origin
\nand destination of the production.
\n3. The Parties recognise that anti-competitive business conduct may frustrate
\nthe benefits arising from this Agreement. The Parties undertake to apply their
\nrespective competition laws in a manner consistent with this Chapter so as to avoid
\nthe benefits of this Agreement in terms of the liberalisation process in goods and
\nservices being diminished or cancelled out by anti-competitive business conduct.
\nArticle 9.2: Competition Law and Enforcement
\n1. Each Party shall adopt or maintain competition laws that proscribe anticompetitive business conduct with the objective of promoting economic efficiency
\nand consumer welfare.
\n2. With a view to preventing distortions or restrictions on competition the
\nParties will give particular attention to anti-competitive agreements, concerted
\npractices or arrangements by competitors and abusive behaviour resulting from
\nsingle or joint dominant positions in a market. These practices refer to goods and
\nservices and may be carried out by any enterprise irrespective of the ownership of
\nthat enterprise.<\/p>\n
3. Competition law shall apply to all commercial activities. However, each
\nParty may exempt specific measures or sectors from the application of their
\ngeneral competition law, provided that such exemptions are transparent and
\nundertaken on the grounds of public policy or public interest. Exemptions of the
\nParties as at the date of entry into force of this Agreement are set out in Annex 9.A. 9-2
\nThose exemptions shall not have the objective of negatively affecting trade among
\nthe Parties. Should any Party be considering additions to its list of exemptions that
\nit considers may affect trade with another Party, it will inform that Party, which may
\nrequest consultations under Article 9.5. The Commission shall implement any
\nadditions to or removals from the list of exemptions through an Implementing
\nArrangement.
\n4. Each Party shall establish or maintain a competition authority responsible for
\nthe enforcement of its measures to proscribe anti-competitive business conduct.
\nThe enforcement policy of each Party\u2019s competition authority shall not discriminate
\non the basis of the nationality of the subjects of their proceedings to the extent that
\nthey carry on a business within the territory of that Party.
\n5. Each Party shall ensure that a person subject to the imposition of a sanction
\nor remedy for violation of competition laws is provided with the opportunity to be
\nheard and present evidence, and to seek review of such a sanction or remedy in a
\ndomestic court or independent tribunal.
\nArticle 9.3: Cooperation
\n1. The Parties agree to cooperate and coordinate in the area of competition
\npolicy by exchanging information on the development of competition policy. The
\nParties also recognise the importance of cooperation and coordination between
\ntheir respective competition authorities to further effective competition law
\nenforcement in their respective jurisdictions. Accordingly, the Parties shall
\ncooperate on issues of competition law enforcement, including notification,
\nconsultation and exchanges of information.
\n2. The Parties through their respective competition authorities will seek a
\ncooperation agreement after the date of the entry into force of this Agreement.
\nArticle 9.4: Notifications
\n1. Each Party shall notify the other Parties of an enforcement activity regarding
\nan anti-competitive business conduct if it:
\n(a) considers that the enforcement activity is liable to substantially affect
\nanother Party’s important interests;
\n(b) relates to restrictions on competition which are liable to have a direct
\nand substantial effect in the territory of another Party; or
\n(c) concerns anti-competitive acts taking place principally in the territory of
\nanother Party. 9-3
\n2. Notification shall take place at an early stage of the procedure, provided that
\nthis is not contrary to the Parties\u2019 competition laws and does not affect any
\ninvestigation being carried out.
\nArticle 9.5: Consultations and Exchange of Information
\n1. At the request of any Party, the Parties shall consult on any issue adversely
\naffecting the competitive interests for trade or investment among them within the
\nobjectives of this Chapter.
\n2. Information or documents exchanged between the Parties in relation to any
\nconsultation conducted pursuant to the provisions of this Chapter shall be kept
\nconfidential. No Party shall, except to comply with its domestic legal requirements,
\nrelease or disclose such information or documents to any person without the
\nwritten consent of the Party that provided such information or documents. Where
\nthe disclosure of such information or documents is necessary to comply with the
\ndomestic legal requirements of a Party, that Party shall notify the other Parties
\nbefore such disclosure is made. The Parties may agree to the public release of
\ninformation that they do not consider confidential.
\nArticle 9.6: Public enterprises and enterprises entrusted with special or
\nexclusive rights, including designated monopolies
\n1. Nothing in this Chapter prevents a Party from designating or maintaining
\npublic or private monopolies according to their respective laws.
\n2. With regard to public enterprises and enterprises to which special or
\nexclusive rights have been granted, the Parties shall ensure that, following the date
\nof entry into force of this Agreement, no measure is adopted or maintained that
\ndistorts trade in goods or services among the Parties, which is contrary to this
\nAgreement and contrary to the Parties\u2019 interests, and that such enterprises shall be
\nsubject to the rules of competition insofar as the application of such rules does not
\nobstruct the performance, in law or in fact, of the particular tasks assigned to them.
\nArticle 9.7: Dispute Settlement
\n1. Nothing in this Chapter permits a Party to challenge any decision made by a
\ncompetition authority of another Party in enforcing the applicable competition laws
\nand regulations.
\n2. No Party shall have recourse to any dispute settlement procedures under
\nthis Agreement for any issue arising from or relating to this Chapter. 9-4
\nAnnex 9.A
\nThis Annex lists exemptions from the application of competition law to all
\ncommercial activities in accordance with Article 9.2 and which may affect the
\nbenefits arising from this Agreement. It does not include exemptions from the
\napplication of competition law that are within the scope of other Chapters of this
\nAgreement.
\nNew Zealand
\nSpecific exemptions from New Zealand Commerce Act
\nPharmaceuticals subsidies by Pharmac (Section 53 of New Zealand Public Health
\nand Disability Act 2000) \u2013 The Act exempts certain agreements relating to the
\npurchase and subsidising of pharmaceuticals from Part II of the Commerce Act
\n(restrictive trade practices).
\nExport arrangements (Section 44(1)(g)) – “Export arrangements” that relate
\nexclusively to the export of goods from New Zealand or exclusively to the supply of
\nservices wholly outside New Zealand are exempt from the Commerce Act (Part II
\non restrictive trade practices), under conditions of due notification to the Commerce
\nCommission.
\nAgricultural Producer Boards \u2013 Limited exemptions from Part II of the Commerce
\nAct (restrictive trade practices) are contained in the Meat Board Act 2004 and the
\nPork Industry Board Act 1997. These exemptions relate to arrangements for
\nsetting levies by the Boards for the purpose of funding their industry-good activities
\n(e.g. market promotion and research). In the case of the Meat Board, the
\nexemption extends to the Board\u2019s administration of export tariff quota
\narrangements.
\nSingapore
\n1. Provision of ordinary letter and postcard services by licensed and regulated
\nentities.
\n2. Supply of piped potable water.
\n3. Supply of wastewater management services, including the collection,
\ntreatment and disposal of wastewater.
\n4. Public Transport: 9-5
\na. Supply of scheduled bus services by any person licensed and
\nregulated under the Public Transport Council Act (Cap. 259B);
\nb. Supply of rail services by any person licensed and regulated under
\nthe Rapid Transit Systems Act (Cap. 263A).
\n5. Cargo terminal operations by a person licensed and regulated under the
\nMaritime and Port Authority of Singapore Act (Cap. 170A).
\n6. Clearing and exchanging of articles undertaken by the Automated Clearing
\nHouse (ACH) established under the Banking (Clearing House) Regulations
\n(Cap. 19, Rg 1), and activities of the Singapore Clearing Houses
\nAssociation (SCHA) in relation to its activities regarding the ACH.
\n7. Mergers and acquisitions (M&As) approved under any written law or any
\ncode of practice issued under any written law relating to competition, and
\nM&As relating to any of the above activities\/sectors. 10-1
\nCHAPTER 10
\nINTELLECTUAL PROPERTY
\nArticle 10.1: Definitions
\nFor the purposes of this Chapter:
\nTRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual
\nProperty Rights, which is part of the WTO Agreement;
\nIntellectual property refers to all categories of intellectual property that are the
\nsubject of Sections 1 through 7 of Part II of the TRIPS Agreement namely:
\ncopyright and related rights; trade marks; geographical indications; industrial
\ndesigns; patents; layout designs (topographies) of integrated circuits; protection of
\nundisclosed information.
\n1<\/p>\n
Article 10.2: Intellectual Property Principles
\n1. The Parties recognise the importance of intellectual property in promoting
\neconomic and social development, particularly in the new digital economy,
\ntechnological innovation and trade.
\n2. The Parties recognise the need to achieve a balance between the rights of
\nright holders and the legitimate interests of users and the community with regard to
\nprotected subject matter.
\n3. The Parties are committed to the maintenance of intellectual property rights
\nregimes and systems that seek to:
\n(a) facilitate international trade, economic and social development through
\nthe dissemination of ideas, technology and creative works;
\n(b) provide certainty for right-holders and users of intellectual property over
\nthe protection and enforcement of intellectual property rights; and
\n(c) facilitate the enforcement of intellectual property rights with the view,
\ninter alia, to eliminate trade in goods infringing intellectual property
\nrights.<\/p>\n
1
\nFor the purpose of this Chapter \u201cintellectual property\u201d also includes the protection of plant
\nvarieties.10-2
\nArticle 10.3: General Provisions
\n1. The Parties affirm their existing rights and obligations with respect to each
\nother under the TRIPS Agreement and any other multilateral agreement relating to
\nintellectual property to which they are party. To this end, nothing in this Chapter
\nshall derogate from existing rights and obligations that Parties have to each other
\nunder the TRIPS Agreement or other multilateral intellectual property agreements.
\n2. Nothing in this Chapter shall prevent a Party from adopting appropriate
\nmeasures to prevent the abuse of intellectual property rights by right holders or the
\nresort to practices that unreasonably restrain trade or adversely affect the
\ninternational transfer of technology, provided that such measures are consistent
\nwith this Agreement. In particular, nothing in this Chapter shall prevent a Party
\nfrom adopting measures necessary to prevent anti-competitive practices that may
\nresult from the abuse of intellectual property rights.
\n3. Subject to each Party\u2019s international obligations the Parties affirm that they
\nmay:
\n(a) provide for the international exhaustion of intellectual property rights;
\n(b) establish that provisions in standard form non-negotiated licenses for
\nproducts do not prevent consumers from exercising the limitations and
\nexceptions recognised in domestic intellectual property laws;
\n(c) establish provisions to facilitate the exercise of permitted acts where
\ntechnological measures have been applied; and
\n(d) establish appropriate measures to protect traditional knowledge.
\n4. The Parties shall provide for reproduction rights and communication to the
\npublic rights to copyright owners and phonogram producers that are consistent with
\nthe World Intellectual Property Organization Copyright Treaty (WCT) and the World
\nIntellectual Property Organization Performances and Phonograms Treaty (WPPT).
\nThe Parties shall provide performers’ rights consistent with the TRIPS Agreement.
\nThe Parties may establish limitations and exceptions in their domestic laws as
\nacceptable under the Berne Convention for the Protection of Literary and Artistic
\nWorks (1971), the TRIPS Agreement, the WCT and the WPPT. These provisions
\nshall be understood to permit Parties to devise new exceptions and limitations that
\nare appropriate in the digital environment.<\/p>\n
5. Subject to their obligations under the TRIPS Agreement, each Party may
\nlimit the rights of the performers and producers of phonograms and broadcasting
\nentities of the other Party to the rights its persons are accorded within the
\njurisdiction of the other Party. 10-3
\nArticle 10.4: Trade Marks
\n1. Each Party shall afford an opportunity for interested parties to oppose the
\napplication of a trade mark and request cancellation of a registered trade mark.
\n2. In relation to trade marks, Parties are encouraged to classify goods and
\nservices according to the classification of the Nice Agreement Concerning the
\nInternational Classification of Goods and Services for the Purposes of the
\nRegistration of Marks (1979).
\nArticle 10.5: Geographical Indications
\n1. The terms listed in Annex 10.A are recognised as geographical indications
\nfor wines and spirits in the respective Party, within the meaning of paragraph 1 of
\nArticle 22 of the TRIPS Agreement. Subject to domestic laws,
\n2
\nin a manner that is
\nconsistent with the TRIPS Agreement, such terms will be protected as
\ngeographical indications in the territories of the other Parties.
\n2. At the request of a Party, the Commission may decide to add or remove
\ngeographical indications from Annex 10.A.<\/p>\n
Article 10.6: Country Names
\nThe Parties shall provide the legal means for interested parties to prevent
\ncommercial use of country names of the Parties in relation to goods in a manner
\nwhich misleads consumers as to the origin of such goods.
\nArticle 10.7: Cooperation
\nThe Parties agree to cooperate, consistent with the principles set out in
\nArticle 10.2. Such cooperation may include, inter alia:
\n(a) the notification of contact points for the enforcement of intellectual
\nproperty rights;
\n(b) exchange of information relating to developments in intellectual property
\npolicy in their respective agencies. Such developments may include,<\/p>\n
2
\nFor greater certainty, the Parties acknowledge that geographical indications will be recognised and
\nprotected in Brunei Darussalam, Chile, New Zealand and Singapore only to the extent permitted by
\nand according to the terms and conditions set out in their respective domestic laws. 10-4
\nbut are not limited to, the implementation of appropriate limitations and
\nexceptions under copyright law and the implementation of measures
\nconcerning the appropriate protection of digital rights management
\ninformation;
\n(c) exchange of information on the implementation of intellectual property
\nsystems, aimed at promoting the efficient registration of intellectual
\nproperty rights;
\n(d) promotion of the development of contacts and cooperation among their
\nrespective agencies, including enforcement agencies, educational
\ninstitutions and other organisations with an interest in the field of
\nintellectual property rights;
\n(e) policy dialogue on initiatives on intellectual property in multilateral and
\nregional forums;
\n(f) exchange of information and cooperation on appropriate initiatives to
\npromote awareness of intellectual property rights and systems; and
\n(g) such other activities and initiatives as may be mutually determined
\namong the Parties. 10-5
\nAnnex 10.A
\nLists of Geographical Indications
\nList of Geographical Indications from Chile
\nWINES Name of Appellation
\nValle de Aconcagua
\nAlhu\u00e9
\nValle del B\u00edo B\u00edo
\nBuin
\nValle del Cachapoal
\nValle de Casablanca
\nCauquenes
\nChill\u00e1n
\nChimbarongo
\nValle del Choapa
\nCoelemu
\nValle de Colchagua
\nValle de Copiap\u00f3
\nValle de Curic\u00f3
\nRegion de Aconcagua
\nRegion de Atacama
\nRegion de Coquimbo
\nValle del Claro
\nRegion del Sur
\nRegion del Valle Central
\nValle del Elqui
\nValle del Huasco
\nIllapel
\nIsla de Maipo
\nValle del Itata
\nValle de Leyda
\nValle del Limar\u00ed
\nLinares
\nValle del Loncomilla
\nValle del Lontu\u00e9
\nLolol
\nValle del Maipo
\nMaria Pinto
\nValle del Marga-Marga
\nValle del Maule
\nMarchigue
\nValle del Malleco
\nMelipilla
\nMolina
\nMonte Patria
\nMulch\u00e9n
\nNancagua 10-6
\nOvalle
\nPaiguano
\nPajarete
\nPalmilla
\nPanquehue
\nParral
\nPencahue
\nPeralillo
\nPeumo
\nPirque
\nPortezuelo
\nPuente Alto
\nPunitaqui
\nQuill\u00f3n
\nRancagua
\nValle del Rapel
\nRauco
\nRengo
\nRequ\u00ednoa
\nR\u00edo Hurtado
\nRomeral
\nSagrada Familia
\nValle de San Antonio
\nSan Juan
\nSalamanca
\nSan Clemente
\nSan Fernando
\nSan Javier
\nSan Rafael
\nSanta Cruz
\nSantiago
\nTalagante
\nTalca
\nValle del Teno
\nValle delTutuv\u00e9n
\nTraigu\u00e9n
\nVicu\u00f1a
\nVilla Alegre
\nVino Asoleado
\nYumbel<\/p>\n
SPIRITS Name of Apellation Country
\nPisco Chile 11-1
\nCHAPTER 11
\nGOVERNMENT PROCUREMENT
\nArticle 11.1: Definitions
\nFor the purposes of this Chapter:
\nbuild-operate-transfer contract and public works concession contract mean
\nany contractual arrangement the primary purpose of which is to provide for the
\nconstruction or rehabilitation of physical infrastructure, plant, buildings, facilities or
\nother government-owned works and under which, as consideration for a supplier’s
\nexecution of a contractual arrangement, the entity grants to the supplier, for a
\nspecified period of time, temporary ownership or a right to control and operate, and
\ndemand payment for the use of such works for the duration of the contract;
\nentity means an entity listed in Annex 11.A;
\ngovernment procurement or procurement means the process by which entities
\npurchase goods and services;
\nmeasures relating to government procurement means any law, regulation,
\npolicy, or procedure of general application relating to government procurement;
\noffsets means conditions used to encouraged local development or improve the
\nbalance of payments accounts by means of domestic content, licensing of
\ntechnology, investment requirements, counter-trade or similar requirements;
\npublish means to disseminate information in an electronic or paper medium that is
\ndistributed widely and is readily accessible to the general public;
\nsupplier means a natural or legal person of a Party that provides or could provide
\ngoods or services to an entity;
\ntechnical specification means a tendering requirement that:
\n(a) sets out the characteristics of:
\n(i) goods to be procured, such as quality, performance, safety and
\ndimensions, or the process and methods for their production, or
\n(ii) services to be procured, or the processes or methods for their
\nprovision, including any applicable administrative provisions; 11-2
\n(b) addresses terminology, symbols, packaging, marking or labelling
\nrequirements, as they apply to a good or service; or
\n(c) sets out conformity assessment procedures prescribed by an entity.
\nArticle 11.2: Objectives
\nThe objectives of this Chapter are to recognise the importance of conducting
\ngovernment procurement in accordance with the fundamental principles of
\ntransparency, value for money, open and effective competition, fair dealing,
\naccountability and due process, and non-discrimination.
\nArticle 11.3: Scope
\n1. This Chapter applies to measures adopted or maintained by a Party relating
\nto government procurement by any contractual means, including purchase and
\nrental or lease, with or without an option to buy, build-operate-transfer contracts
\nand public works concessions contracts:
\n(a) by entities listed in Annex 11.A, and their successors other than those
\nsubsequently corporatised, commercialised or privatised;
\n(b) in which the contract has a value not less than the relevant threshold
\nconverted into respective currencies as set out in Annex 11.C; and
\n(c) subject to any other conditions specified in the Annexes.
\n2. This Chapter does not apply to:
\n(a) the purchase or acquisition of goods and services by an entity of a Party
\nfrom another entity of that Party, except where tenders are called, in
\nwhich case this Chapter shall apply;
\n(b) non-contractual agreements, or any form of assistance to persons or
\ngovernmental authorities, including foreign assistance, grants, loans,
\nequity infusions, fiscal incentives, subsidies, guarantees, cooperative
\nagreements, sponsorship arrangements and governmental provision of
\ngoods and services;
\n(c) purchases funded by international grants, loans or other assistance,
\nwhere the provision of such assistance is subject to conditions
\ninconsistent with the provisions of this Chapter; 11-3
\n(d) procurement of goods and services (including construction) outside the
\nterritory of the procuring Party, for consumption outside the territory of
\nthe procuring Party;
\n(e) acquisition of fiscal agency or depository services, liquidation and
\nmanagement services for regulated financial institutions, and sale and
\ndistribution services for government debt; or
\n(f) hiring of government employees or other long-term staff and personnel,
\nand related employment measures.
\n3. Each Party shall ensure that its entities shall not prepare, design or
\notherwise structure or divide, at any stage of the procurement, any procurement in
\norder to avoid the obligations of this Chapter.
\nArticle 11.4: National Treatment and Non-Discrimination
\n1. With respect to any measures regarding government procurement covered
\nby this Chapter, each Party shall grant to goods, services and suppliers of the
\nother Parties treatment no less favourable than that accorded by it to domestic
\ngoods, services and suppliers.
\n2. With respect to any measures regarding government procurement covered
\nby this Chapter, no Party shall allow its entities to:
\n(a) treat a locally established supplier less favourably than another locally
\nestablished supplier on the basis of the degree of foreign affiliation to, or
\nownership by a person of, another Party; or
\n(b) discriminate against a locally established supplier on the basis that the
\ngoods or services offered by that supplier are goods or services of
\nanother Party.
\n3. A Party shall not discriminate in favour of any enterprise, whether or not the
\nParty is a shareholder in that enterprise.
\n4. This Article shall not apply to measures concerning customs duties and
\ncharges of any kind imposed on or in connection with importation, the method of
\nlevying such duties and charges, other import regulations, or to measures affecting
\ntrade in services other than measures specifically governing procurement covered
\nby this Chapter. 11-4
\nArticle 11.5: Rules of Origin
\nFor the sole purpose of determining customs duties applicable to goods
\nimported for purposes of government procurement, the Parties shall apply the
\nsame rules of origin that are used to determine customs duties applicable to
\nimports of goods for other purposes.
\nArticle 11.6: Prohibition of Offsets
\nEach Party shall ensure that its entities do not consider, seek or impose
\noffsets at any stage of a procurement.
\nArticle 11.7: Non-Disclosure of Information
\n1. The Parties, their entities and their review authorities shall not, except to the
\nextent required by law, disclose confidential information that would prejudice
\nlegitimate commercial interests of a particular supplier or might prejudice fair
\ncompetition between suppliers without the written authorisation of the supplier that
\nprovided the information.
\n2. Nothing in this Chapter shall be construed as requiring a Party or its entities
\nto disclose confidential information the disclosure of which would impede law
\nenforcement or otherwise be contrary to the public interest.
\nArticle 11.8: Publication of Information on Procurement Measures
\nEach Party shall promptly publish:
\n(a) its measures relating to government procurement covered by this
\nChapter; and
\n(b) any modifications to such measures in the same manner as the original
\npublication.
\nArticle 11.9: Technical Specifications
\n1. Each Party shall ensure that its entities do not prepare, adopt or apply any
\ntechnical specification with the purpose or the effect of creating unnecessary
\nobstacles to trade among the Parties.
\n2. Any technical specifications prescribed by an entity shall, where appropriate: 11-5
\n(a) be specified in terms of performance and functional requirements, rather
\nthan design or descriptive characteristics; and
\n(b) be based on international standards, where applicable, or otherwise on
\nnational technical regulations, recognised national standards, or building
\ncodes.
\n3. Each Party shall ensure that its entities do not prescribe technical
\nspecifications that require or refer to a particular trademark or trade name, patent,
\ndesign or type, specific origin or producer or supplier, unless there is no sufficiently
\nprecise or intelligible way of describing the procurement requirements and provided
\nthat, in such cases, words such as “or equivalent” are included in the tender
\ndocumentation.
\n4. Each Party shall ensure that an entity shall not seek or accept advice to be
\nused in the preparation or adoption of any technical specification for a specific
\nprocurement from a person that may have a commercial interest in that
\nprocurement, if to do so would prejudice fair competition.
\nArticle 11.10: Valuation of Contracts
\nIn calculating the value of contracts for the purposes of implementing this
\nChapter entities shall base their valuation on the maximum total estimated value of
\nthe procurement over its entire duration including optional purchases, premiums,
\nfees, commissions, interests and revenue streams or other forms of remuneration
\nprovided for in such contracts.
\nArticle 11.11: Tendering Procedures
\nExcept as provided for in Article 11.18 entities shall award contracts by
\nmeans of open tendering procedures, in the course of which any interested
\nsupplier may submit a tender or apply to meet conditions for participation in a
\nprocurement.
\n1
\nArticle 11.12: Notice of Intended Procurement
\n1. For each procurement covered by this Chapter, entities shall publish in
\nadvance a notice of intended procurement inviting interested suppliers to submit a<\/p>\n
1
\nThe Parties understand that further procurements under contracts, which are awarded consistently
\nwith this Chapter, in particular Article 11.10, that provide that goods and services will be available to
\nentities on the same terms and conditions as the original contract are considered consistent with
\nthis Chapter. 11-6
\ntender or apply to meet conditions for participation in the procurement, except as
\nprovided for in Article 11.18.
\n2. The information in each notice of intended procurement shall include a
\ndescription of the intended procurement; any conditions that suppliers must fulfil to
\nparticipate in the procurement, including the time limits for submission of tenders;
\nand contact details for obtaining of all relevant documents.
\n3. Entities shall publish the notices in a timely manner through means which
\noffer the widest possible and non-discriminatory access to the interested suppliers
\nof the Parties. These means shall be accessible free of charge, during the entire
\nperiod established for tendering, through a single electronic point of access
\nspecified in Annex 11.B.
\n4. Where an entity, during the course of a procurement, modifies the criteria
\nreferred to in the notice of intended procurement, it shall publish or transmit all
\nsuch modifications in writing:
\n(a) to all suppliers that are participating in the procurement at the time the
\ncriteria are modified, if the identities of such suppliers are known, and in
\nall other cases, in the same manner as the original information was
\ntransmitted; and
\n(b) in adequate time to allow such suppliers to modify and resubmit their
\ntenders, as appropriate.
\n5. Each notice of intended procurement under Paragraph 1 shall be published
\nsufficiently in advance to provide interested suppliers of all Parties with a
\nreasonable period of time in light of the nature, circumstances and complexity of
\nthe procurement, to obtain the full tender documentation and to prepare and submit
\nresponsive tenders by the closing date, or to apply for participation in the
\nprocurement where applicable.
\n6. Notwithstanding Paragraph 5, entities shall provide no less than 10 days
\nbetween the date on which the notice of intended procurement is published and the
\nfinal date for the submission of tenders.
\nArticle 11.13: Tender Documentation
\n1. Tender documentation provided to suppliers shall contain all information
\nnecessary to permit them to prepare and submit responsive tenders, including the
\nessential requirements and evaluation criteria for the award of the procurement
\ncontract. 11-7
\n2. Where contracting entities do not offer direct access to the entire tender
\ndocuments and any supporting documents by electronic means, entities shall
\npromptly make available the tender documentation at the request of any supplier of
\nthe Parties.
\n3. An entity shall endeavour to reply promptly to any reasonable request for
\nexplanation or relevant information made by a supplier, provided that such
\ninformation does not give that supplier an advantage over its competitors in the
\nprocedure for the award of the contract. The explanation or information provided to
\na supplier may be provided to all suppliers that are invited to tender.
\n4. Where an entity, during the course of a procurement, modifies the essential
\nrequirements and evaluation criteria of the tender documentation, it shall publish or
\ntransmit all such modifications in writing:
\n(a) to all suppliers who have requested tender documentation at the time
\nthe criteria are modified, and in the same manner the original
\ninformation was transmitted; and
\n(b) in adequate time to allow such suppliers to modify and resubmit their
\ntenders, as appropriate.
\nArticle 11.14: Awarding of Contracts
\n1. The Parties shall ensure that its entities receive, open and evaluate all
\ntenders under procedures that guarantee the fairness and impartiality of the
\nprocurement process.
\n2. To be considered for award, a tender must, at the time of opening, conform
\nto the essential requirements of the notice of intended procurement or tender
\ndocumentation and be submitted by a supplier who complies with the conditions for
\nparticipation.
\n3. Unless an entity determines that it is not in the public interest to award a
\ncontract, it shall award the contract to the supplier that has been determined to be
\nfully capable of undertaking the contract and whose tender is determined to offer
\nthe best value for money or be the most advantageous in terms of the essential
\nrequirements and evaluation criteria set forth in the tender documentation.
\n4. An entity shall not cancel a procurement covered by this Chapter, or
\nterminate or modify awarded contracts in order to circumvent the requirements of
\nthis Chapter. 11-8
\nArticle 11.15: Post-Award Information<\/p>\n
1. Entities shall promptly publish or inform suppliers that have submitted a
\ntender of the contract award decision.
\n2. Entities shall, on request from an unsuccessful supplier, promptly provide
\npertinent information concerning reasons for the rejection of its tender or the
\nrelative advantages of the tender the entity selected.<\/p>\n
3. Entities shall, promptly after the award of a contract for a procurement
\ncovered by this Chapter, publish a notice containing at least the following
\ninformation:
\n(a) the name and address of the successful supplier;
\n(b) a description of the goods or services supplied; and
\n(c) the value of the contract award.
\nArticle 11.16: Conditions for Participation
\n1. Where an entity requires suppliers to satisfy registration, qualification, or any
\nother conditions before being permitted to participate in a procurement, each Party
\nshall ensure that a notice inviting suppliers to apply for registration, qualification or
\ndemonstration of the suppliers’ satisfaction of any other conditions for participation
\nis published sufficiently in advance for interested suppliers to prepare and submit
\nresponsive applications and for entities to evaluate and make their determinations
\nbased on such applications.
\n2. Entities shall consider for a particular procurement those suppliers of
\nanother Party that request to participate in the procurement and that are not yet
\nregistered or qualified, provided there is sufficient time to complete the registration
\nor qualification procedures before the award of the contract.
\n3. Any conditions for participation in the procurement, including financial
\nguarantees, technical qualifications and information necessary for establishing the
\nfinancial, commercial and technical capacity of suppliers, as well as the verification
\nof qualifications, shall be limited to those which are essential to ensure the firm’s
\ncapability to fulfil the contract in question. The financial, commercial and technical
\ncapacity of a supplier shall be judged both on the basis of that supplier’s global
\nbusiness activity and its activity in the territory of the procuring entity, taking due
\naccount of the legal relationship between the supply organisations.
\n4. Nothing in this Article shall preclude an entity from excluding a supplier from
\na procurement on grounds such as bankruptcy, liquidation or insolvency, false 11-9
\ndeclarations relating to a procurement, or significant deficiency in the performance
\nof any obligation under a prior contract.
\nArticle 11.17: Lists of Registered or Qualified Suppliers
\n1. An entity may establish for continuing use a list of suppliers registered or
\nqualified to participate in procurements. A current updated list of registered or
\nqualified suppliers shall be publicly available. The entity shall ensure that suppliers
\nmay apply for participation in the list of registered or qualified suppliers at any time,
\nand that all qualifying applicants are included within a reasonable period of time,
\ntaking into account the conditions for participation and the need for verification.
\nWhere an entity requires suppliers to qualify for such a list before being permitted
\nto participate in a procurement, and a supplier that has not previously satisfied
\nsuch requirements or conditions submits an application, the entity shall promptly
\nstart the registration or qualification procedures and shall allow such supplier to
\nparticipate in the procurement, provided there is sufficient time to complete the
\nregistration or procurement procedures within the time period established for the
\naward.
\n2. The entity shall publish annually or otherwise make available continuously in
\nelectronic form a notice inviting interested suppliers to apply for inclusion on the
\nlist. The notice shall include:
\n(a) a description of the goods and services for which the list of suppliers
\nmay be used; and
\n(b) the conditions to be satisfied by suppliers for inclusion on the list of
\nregistered or qualified suppliers.
\n3. Entities shall notify qualified suppliers of the termination of, or of their
\nremoval from a list of registered or qualified suppliers and state the reason for this
\naction.
\nArticle 11.18: Exceptions to Open Tendering
\n1. Provided that the tendering procedure is not used to avoid competition or to
\nprotect domestic suppliers, entities may award contracts by means other than open
\ntendering procedures in any of the following circumstances:
\n(a) where, in response to a prior notice, invitation to participate, or invitation
\nto tender under open tendering procedures
\n(i) no tenders were submitted, 11-10
\n(ii) no tenders were submitted that conform to the essential
\nrequirements in the tender documentation, or
\n(iii) no suppliers satisfied the conditions for participation, and
\nthe entity does not substantially modify the essential requirements of the
\nprocurement in the contract as awarded;
\n(b) where, for works of art, or for reasons connected with the protection of
\nexclusive rights, such as patents or copyrights, or where there is an
\nabsence of competition for technical reasons, the goods or services can
\nbe supplied only by a particular supplier and no reasonable alternative
\nor substitute exists;
\n(c) for additional deliveries by the original supplier which are intended either
\nas replacement parts, extensions or continuing services for or upgrades
\nof existing equipment, software, services or installations, where a
\nchange of supplier would compel the procuring entity to procure goods
\nor services not meeting requirements of interchangeability with existing
\nequipment, software, services or installations, or conditions under
\noriginal supplier warranties;<\/p>\n
(d) for goods purchased on a commodity market;
\n(e) when an entity procures a prototype or a first good or service that is
\ndeveloped at its request in the course of, and for, a particular contract
\nfor research, experiment, study or original development. When such
\ncontracts have been fulfilled, subsequent procurements of such goods
\nor services shall be subject to the principles and procedures laid down in
\nthis Chapter;
\n(f) when additional construction services which were not included in the
\ninitial contract but which were within the objectives of the original tender
\ndocumentation have, due to unforeseeable circumstances, become
\nnecessary to complete the construction services described therein,
\nprovided that the total value of contracts awarded for additional
\nconstruction services does not exceed 50 percent of the amount of the
\nmain contract;
\n(g) in so far as it is strictly necessary where, for reasons of extreme urgency
\nbrought about by events unforeseeable by the entity, the goods or
\nservices could not be obtained in time by means of an open tendering
\nprocedure, and the use of such procedure would result in serious injury
\nto the entity, the entity’s programme responsibilities or the Party. For
\npurposes of this Subparagraph, lack of advance planning by an entity or 11-11
\nits concerns relating to the amount of funds available to it do not
\nconstitute unforeseeable events;
\n(h) for purchases made under exceptionally advantageous conditions that
\nonly arise in the very short term, including public auction or unusual
\ndisposals, such as those resulting from liquidation, bankruptcy or
\nreceivership. This provision is not intended to cover routine purchases
\nfrom regular suppliers; or<\/p>\n
(i) in the case of a contract awarded to the winner of a design contest
\nprovided that the contest has been organised in a manner which is
\nconsistent with the principles of this Chapter and that the contest is
\njudged by an independent jury with a view to a design contract being
\nawarded to the winner.
\n2. The Parties shall ensure that, whenever it is necessary for entities to resort
\nto a procedure other than open tendering procedures based on the circumstances
\nset forth in Paragraph 1, the entities shall maintain a record or prepare a written
\nreport providing specific justification for the contract.
\nArticle 11.19: Ensuring Integrity in Procurement Practices
\nEach Party shall ensure that criminal or administrative penalties exist to
\naddress corruption in its government procurement, and that its entities have in
\nplace policies and procedures to eliminate any potential conflict of interest on the
\npart of those engaged in or having influence over a procurement.
\nArticle 11.20: Domestic Review of Supplier Complaints
\n1. Each Party shall ensure that its entities accord impartial and timely
\nconsideration to any complaints from suppliers regarding an alleged breach of
\nmeasures implementing this Chapter arising in the context of a procurement in
\nwhich they have, or have had, an interest. Where appropriate, a Party may
\nencourage suppliers to seek clarification from its entities with a view to facilitating
\nthe resolution of any such complaints.<\/p>\n
2. Each Party shall provide suppliers of any one of the other Parties with nondiscriminatory, timely, transparent and effective access to an administrative or
\njudicial body competent to hear or review complaints of alleged breaches of the
\nprocuring Party\u2019s laws, regulations, procedures and practices regarding
\nprocurement in the context of procurements in which they have, or have had, an
\ninterest. 11-12
\n3. Each Party shall make information on complaint mechanisms generally
\navailable.
\n4. Compensation for any breach of measures implementing this Chapter may
\nbe limited to the costs for tender preparation reasonably incurred by the supplier
\nfor the purpose of the procurement.
\nArticle 11.21: Encouraging Use of Electronic Communications in
\nProcurement
\n1. The Parties shall seek to provide opportunities for government procurement
\nto be undertaken through the Internet or a comparable computer-based
\ntelecommunications network.
\n2. In order to facilitate commercial opportunities for their suppliers under this
\nChapter, each Party shall maintain a single electronic portal for access, to
\ncomprehensive information on government procurement supply opportunities in its
\nterritory, and information on measures relating to government procurement shall be
\navailable. The contact point or points from whom suppliers can obtain information
\non government procurement shall either be specified in Annex 11.B, or be set out
\nin the information on the single electronic portal.
\n3. The Parties shall encourage, to the extent possible, the use of electronic
\nmeans for the provision of tender documents and receipt of tenders.
\n4. The Parties shall endeavour to ensure policies and procedures for the use
\nof electronic means in procurement are adopted that:
\n(a) protect documentation from unauthorised and undetected alteration; and
\n(b) provide appropriate levels of security for data on, and passing through,
\nthe procuring entity\u2019s network.
\n5. Each Party shall encourage its entities to publish as early as possible in the
\nfiscal year information regarding the entities’ indicative procurement plans in the
\nelectronic portal referred to in Paragraph 2.
\nArticle 11.22: Exceptions
\n1. Nothing in this Chapter shall be construed to prevent any Party from taking
\nany action or not disclosing any information which it considers necessary for the
\nprotection of its essential security interests relating to the procurement of arms,
\nammunition or war materials, or to procurement indispensable for national security
\nor for national defence purposes.11-13<\/p>\n
2. Subject to the requirement that such measures are not applied in a manner
\nthat would constitute a means of arbitrary or unjustifiable discrimination between
\nParties where the same conditions prevail or a disguised restriction on trade
\nbetween the Parties, nothing in this Chapter shall be construed to prevent a Party
\nfrom adopting or maintaining measures:
\n(a) necessary to protect public morals, order, or safety;
\n(b) necessary to protect human, animal or plant life or health;
\n(c) necessary to protect intellectual property; or
\n(d) relating to goods or services of handicapped persons, of philanthropic or
\nnot for profit institutions, or of prison labour.<\/p>\n
3. The Parties understand that Subparagraph 2(b) includes environmental
\nmeasures necessary to protect human, animal or plant life or health.
\nArticle 11.23: Modifications and Rectifications of Annexes
\n1. A Party may modify its coverage under this Chapter in conformity with
\nArticle 17.2 (Functions of the Commission), provided that it:
\n(a) notifies the other Parties of the modification; and
\n(b) provides the other Parties, within 30 days following the date of such
\nnotification, appropriate compensatory adjustments to its coverage in
\norder to maintain a level of coverage comparable to that existing prior to
\nthe modification.
\n2. Notwithstanding Subparagraph 1(b), no compensatory adjustments shall be
\nprovided to the other Parties where the modification by a Party of its coverage
\nunder this Chapter concerns:
\n(a) the situation where the business or commercial operations or functions
\nof any of its entities or part thereof are constituted or established as an
\nenterprise with a legal entity separate and distinct from the government
\nof a Party, regardless of whether or not the government holds any
\nshares or interest in such a legal entity; or
\n(b) rectifications of a purely formal nature and minor amendments to Annex
\n11.A or Annex 11.B, including those under Subparagraph (a), made
\nthrough an Implementing Arrangement in accordance with Article 17.2
\n(Functions of the Commission). 11-14
\nAnnex 11.A
\nList of Entities and Covered Goods and Services
\nCHILE
\nA. List of Entities
\n1. Presidencia de la Rep\u00fablica (Office of the President of the Republic)
\n2. Ministerio de Interior (Ministry of the Interior)
\n3. Ministerio de Relaciones Exteriores (Ministry of Foreign Affairs)
\n4. Ministerio de Defensa Nacional (Ministry of National Defense)
\n5. Ministerio de Hacienda (Ministry of Finance)
\n6. Ministerio Secretar\u00eda General de la Presidencia (Ministry of the General
\nSecretariat of the President\u2019s Office)
\n7. Ministerio Secretar\u00eda General de Gobierno (Ministry of the General
\nSecretariat of Government)
\n8. Ministerio de Econom\u00eda, Fomento, Reconstrucci\u00f3n y Energ\u00eda (Ministry
\nof Economic Affairs, Development, Reconstruction and Energy)
\n9. Ministerio de Miner\u00eda (Ministry of Mining)
\n10. Ministerio de Planificaci\u00f3n y Cooperaci\u00f3n (Ministry of Planning and
\nCooperation)
\n11. Ministerio de Educaci\u00f3n (Ministry of Education)
\n12. Ministerio de Justicia (Ministry of Justice)
\n13. Ministerio de Trabajo y Previsi\u00f3n Social (Ministry of Labour and Social
\nWelfare)
\n14. Ministerio de Obras P\u00fablicas (Ministry of Public Works)
\n15. Ministerio de Transporte y Telecomunicaciones (Ministry of Transport
\nand Telecommunications)
\n16. Ministerio de Salud (Ministry of Health)
\n17. Ministerio de la Vivienda y Urbanismo (Ministry of Housing and Urban
\nPlanning)
\n18. Ministerio de Bienes Nacionales (Ministry of National Assets)
\n19. Ministerio de Agricultura (Ministry of Agriculture)
\n20. Ministerio Servicio Nacional de la Mujer (Ministry of the National Bureau
\nfor Women)
\nGobiernos Regionales (Regional Governments)
\nIntendencia I Regi\u00f3n
\n(Intendancy Region I)
\nGobernaci\u00f3n de Arica 11-15
\n(Governor\u2019s Office \u2013 Arica)
\nGobernaci\u00f3n de Parinacota
\n(Governor\u2019s Office – Parinacota)
\nGobernaci\u00f3n de Iquique
\n(Governor\u2019s Office – Iquique)
\nIntendencia II Regi\u00f3n
\n(Intendancy Region II)
\nGobernaci\u00f3n de Antofagasta
\n(Governor\u2019s Office – Antofagasta)
\nGobernaci\u00f3n de El Loa
\n(Governor\u2019s Office – El Loa)
\nGobernaci\u00f3n de Tocopilla
\n(Governor\u2019s Office – Tocopilla)
\nIntendencia III Regi\u00f3n
\n(Intendancy Region III)
\nGobernaci\u00f3n de Cha\u00f1aral
\n(Governor\u2019s Office – Cha\u00f1aral)
\nGobernaci\u00f3n de Copiap\u00f3
\n(Governor\u2019s Office – Copiap\u00f3)
\nIntendencia IV Regi\u00f3n
\n(Intendancy Region IV)
\nGobernaci\u00f3n de Huasco
\n(Governor\u2019s Office – Huasco)
\nGobernaci\u00f3n de El Elqui
\n(Governor\u2019s Office – El Elqui)
\nGobernaci\u00f3n de Limar\u00ed
\n(Governor\u2019s Office – Limar\u00ed)
\nGobernaci\u00f3n de Choapa
\n(Governor\u2019s Office – Choapa)
\nIntendencia V Regi\u00f3n
\n(Intendancy Region V)
\nGobernaci\u00f3n de Petorca
\n(Governor\u2019s Office – Petorca)
\nGobernaci\u00f3n de Valpara\u00edso
\n(Governor\u2019s Office – Valparaiso)
\nGobernaci\u00f3n de San Felipe de Aconcagua
\n(Governor\u2019s Office – San Felipe de Aconcagua)
\nGobernaci\u00f3n de Los Andes
\n(Governor\u2019s Office – Los Andes)
\nGobernaci\u00f3n de Quillota
\n(Governor\u2019s Office – Quillota)
\nGobernaci\u00f3n de San Antonio
\n(Governor\u2019s Office – San Antonio)
\nGobernaci\u00f3n de Isla de Pascua
\n(Governor\u2019s Office – Isla de Pascua)
\nIntendencia VI Regi\u00f3n 11-16
\n(Intendancy Region VI)
\nGobernaci\u00f3n de Cachapoal
\n(Governor\u2019s Office – Cachapoal)
\nGobernaci\u00f3n de Colchagua
\n(Governor\u2019s Office – Colchagua)
\nGobernaci\u00f3n de Cardenal Caro
\n(Governor\u2019s Office – Cardenal Caro)
\nIntendencia VII Regi\u00f3n
\n(Intendancy Region VII)
\nGobernaci\u00f3n de Curic\u00f3
\n(Governor\u2019s Office – Curic\u00f3)
\nGobernaci\u00f3n de Talca
\n(Governor\u2019s Office – Talca)
\nGobernaci\u00f3n de Linares
\n(Governor\u2019s Office – Linares)
\nGobernaci\u00f3n de Cauquenes
\n(Governor\u2019s Office – Cauquenes)
\nIntendencia VIII Regi\u00f3n
\n(Intendancy Region VIII)
\nGobernaci\u00f3n de \u00d1uble
\n(Governor\u2019s Office – \u00d1uble)
\nGobernaci\u00f3n de B\u00edo-B\u00edo
\n(Governor\u2019s Office – B\u00edo-B\u00edo)
\nGobernaci\u00f3n de Concepci\u00f3n
\n(Governor\u2019s Office – Concepci\u00f3n)
\nGobernaci\u00f3n de Arauco
\n(Governor\u2019s Office – Arauco)
\nIntendencia IX Regi\u00f3n
\n(Intendancy Region IX)
\nGobernaci\u00f3n de Malleco
\n(Governor\u2019s Office – Malleco)
\nGobernaci\u00f3n de Caut\u00edn
\n(Governor\u2019s Office – Caut\u00edn)
\nIntendencia X Regi\u00f3n
\n(Intendancy Region X)
\nGobernaci\u00f3n de Valdivia
\n(Governor\u2019s Office – Valdivia)
\nGobernaci\u00f3n de Osorno
\n(Governor\u2019s Office – Osorno)
\nGobernaci\u00f3n de Llanquihue
\n(Governor\u2019s Office – Llanquihue)
\nGobernaci\u00f3n de Chilo\u00e9
\n(Governor\u2019s Office – Chilo\u00e9)
\nGobernaci\u00f3n de Palena
\n(Governor\u2019s Office – Palena)
\nIntendencia XI Regi\u00f3n 11-17
\n(Intendancy Region XI)
\nGobernaci\u00f3n de Coihaique
\n(Governor\u2019s Office – Coihaique)
\nGobernaci\u00f3n de Ays\u00e9n
\n(Governor\u2019s Office – Ays\u00e9n)
\nGobernaci\u00f3n de General Carrera
\n(Governor\u2019s Office – General Carrera)
\nIntendencia XII Regi\u00f3n
\n(Intendancy Region XII)
\nGobernaci\u00f3n de Capit\u00e1n Prat
\n(Governor\u2019s Office – Capit\u00e1n Prat)
\nGobernaci\u00f3n de Ultima Esperanza
\n(Governor\u2019s Office – Ultima Esperanza)
\nGobernaci\u00f3n de Magallanes
\n(Governor\u2019s Office – Magallanes)
\nGobernaci\u00f3n de Tierra del Fuego
\n(Governor\u2019s Office – Tierra del Fuego)
\nGobernaci\u00f3n de Ant\u00e1rtica Chilena
\n(Governor\u2019s Office – Ant\u00e1rtica Chilena)
\nIntendencia Regi\u00f3n Metropolitana
\n(Intendancy Metropolitan Region)
\nGobernaci\u00f3n de Chacabuco
\n(Governor\u2019s Office – Chacabuco)
\nGobernaci\u00f3n de Cordillera
\n(Governor\u2019s Office – Cordillera)
\nGobernaci\u00f3n de Maipo
\n(Governor\u2019s Office – Maipo)
\nGobernaci\u00f3n de Talagante
\n(Governor\u2019s Office – Talagante)
\nGobernaci\u00f3n de Melipilla
\n(Governor\u2019s Office – Melipilla)
\nGobernaci\u00f3n de Santiago
\n(Governor\u2019s Office – Santiago)
\nNote to Section A:
\nChapter 11 shall not apply to any procurement made by a listed entity on
\nbehalf of a non-listed entity.
\nB. Covered Goods and Services
\n1. Goods
\nChapter 11 applies to all goods procured by the entities listed in Section A. 11-18
\n2. Services
\nChapter 11 applies to all services procured by the entities listed in
\nSection A, except all classes of financial services (as elaborated in the
\nCommon Classification System), which are excluded.
\n3. Construction Services
\nChapter 11 applies to all construction services procured by the entities listed
\nin Section A. 11-19
\nNEW ZEALAND
\nA. List of Entities
\nArchives New Zealand
\nCrown Law Office
\nDepartment of Building and Housing
\nDepartment of Child, Youth and Family Services
\nDepartment of Conservation
\nDepartment of Corrections
\nDepartment of Internal Affairs
\nDepartment of Labour
\nDepartment of the Prime Minister and Cabinet
\nEducation Review Office
\nGovernment Communications Security Bureau
\nInland Revenue Department
\nLand Information New Zealand
\nMinistry of Agriculture and Forestry
\nMinistry for Culture and Heritage
\nMinistry of Defence
\nMinistry of Economic Development
\nMinistry of Education
\nMinistry for the Environment
\nMinistry of Fisheries
\nMinistry of Foreign Affairs and Trade
\nMinistry of Health
\nMinistry of Justice
\nMinistry of Maori Development
\nMinistry of Pacific Island Affairs
\nMinistry of Research, Science and Technology
\nMinistry of Social Development
\nMinistry of Transport
\nMinistry of Women’s Affairs
\nNational Library of New Zealand
\nNew Zealand Customs Service
\nNew Zealand Defence Force
\nNew Zealand Police
\nSerious Fraud Office
\nState Services Commission
\nStatistics New Zealand
\nThe Treasury
\nNote to Section A:
\nChapter 11 shall not apply to any procurement made by a listed entity on
\nbehalf of a non-listed entity. 11-20
\nB. Covered Goods and Services
\n1. Goods
\nChapter 11 applies to all goods procured by the entities listed in Section A.
\n2. Services
\nChapter 11 applies to all services procured by the entities listed in
\nSection A, except the following:
\n(a) procurement of research and development services;
\n2
\n(b) any procurement in respect of contracts for construction,
\nrefurbishment or furnishing of chanceries abroad;
\n3
\nand
\n(c) procurement of public health, education and welfare services.
\n4
\n3. Construction Services
\nChapter 11 applies to all construction services procured by the entities listed
\nin Section A, except for procurement covered by Paragraph 2(b) above.<\/p>\n
2
\nAs defined in WTO document MTN.GNS\/W\/120 (CPC 851-853).
\n3
\nAs regards construction services, this refers to WTO document MTN.GNS\/W\/120 sector heading
\n\u201cConstruction and Related Engineering Services\u201d.
\n4
\nRefers to procurement, for provision to the public, of services classified in WTO document
\nMTN.GNS\/W\/120 under the sector headings \u201cEducational Services\u201d and \u201cHealth Related and Social
\nServices\u201d, and CPC item 913. 11-21
\nSINGAPORE
\nA. List of Entities
\nAuditor-General’s Office
\nAttorney-General’s Chambers
\nCabinet Office
\nIstana
\nJudicature
\nMinistry of Transport
\nMinistry of Community Development and Sports
\nMinistry of Education
\nMinistry of Environment
\nMinistry of Finance
\nMinistry of Foreign Affairs
\nMinistry of Health
\nMinistry of Home Affairs
\nMinistry of Information, Communications and the Arts
\nMinistry of Manpower
\nMinistry of Law
\nMinistry of National Development
\nMinistry of Trade and Industry
\nParliament
\nPresidential Councils
\nPrime Minister’s Office
\nPublic Service Commission
\nMinistry of Defence
\nThis Agreement will generally apply to purchases by the Singapore Ministry of
\nDefence of the following Federal Supply Classification (FSC) categories of the
\nUnited States of America (others being excluded) subject to the Government of
\nSingapore’s determinations under the provisions of Article 11.22.
\nFSC Description
\n22 Railway Equipment
\n23 Ground Effect Vehicles, Motor Vehicles, Trailers and Cycles
\n24 Tractors
\n25 Vehicular Equipment Components
\n26 Tires and Tubes
\n29 Engine Accessories
\n30 Mechanical Power Transmission Equipment
\n31 Bearings
\n32 Woodworking Machinery and Equipment
\n34 Metalworking Machinery 11-22
\n35 Service and Trade Equipment
\n36 Special Industry Machinery
\n37 Agricultural Machinery and Equipment
\n38 Construction, Mining, Excavating and Highway Maintenance
\nEquipment
\n39 Materials Handling Equipment
\n40 Rope, Cable, Chain and Fittings
\n41 Refrigeration, Air Conditioning and Air Circulating Equipment
\n42 Fire Fighting, Rescue and Safety Equipment
\n43 Pumps and Compressors
\n44 Furnace, Steam Plant and Drying Equipment
\n45 Plumbing, Heating and Sanitation Equipment
\n46 Water Purification and Sewage Treatment Equipment
\n47 Pipe, Tubing, Hose and Fittings
\n48 Valves
\n51 Handtools
\n52 Measuring Tools
\n53 Hardware and Abrasives
\n54 Prefabricated Structures and Scaffolding
\n55 Lumber, Millwork, Plywood and Veneer
\n56 Construction and Building Materials
\n61 Electric Wire, and Power and Distribution Equipment
\n62 Lighting, Fixtures and Lamps
\n63 Alarm, Signal and Security Detection Systems
\n65 Medical, Dental and Veterinary Equipment and Supplies
\n67 Photographic Equipment
\n68 Chemicals and Chemical Products
\n69 Training Aids and Devices
\n70 General Purpose Automatic Data Processing Equipment,
\nSoftware,Supplies and Support Equipment
\n71 Furniture
\n72 Household and Commercial Furnishings and Appliances
\n73 Food Preparation and Serving Equipment
\n74 Office Machines, Text Processing Systems and Visible Record
\nEquipment
\n75 Office Supplies and Devices
\n76 Books, Maps and other Publications
\n77 Musical Instruments, Phonographs and Home-Type Radios
\n78 Recreational and Athletic Equipment
\n79 Cleaning Equipment and Supplies
\n80 Brushes, Paints, Sealers and Adhesives
\n81 Containers, Packaging and Packing Supplies
\n83 Textiles, Leather, Furs, Apparel and Shoe Findings, Tents and Flags
\n84 Clothing, Individual Equipment, and Insignia
\n85 Toiletries
\n87 Agricultural Supplies 11-23
\n88 Live Animals
\n89 Subsistence
\n91 Fuels, Lubricants, Oils and Waxes
\n93 Non-metallic Fabricated Materials
\n94 Non-metallic Crude Materials
\n95 Metal Bars, Sheets and Shapes
\n96 Ores, Minerals, and their Primary Products
\n99 Miscellaneous
\nNote to Section A:
\nChapter 11 shall not apply to any procurement made by a listed entity on
\nbehalf of a non-listed entity.
\nB. Covered Goods and Services
\n1. Goods
\nChapter 11 applies to all goods procured by the entities listed in Section A.
\n2. Services (Other than construction services)
\nThe following services are contained in WTO document MTN.GNS\/W\/120 are
\noffered (others being excluded):
\nCPC Description
\n862 Accounting, Auditing and Book-keeping Services
\n8671 Architectural Services
\n865 Management Consulting Services
\n874 Building-Cleaning Services
\n641-643 Hotels and Restaurants (incl. catering)
\n74710 Travel Agencies and Tour Operators
\n7472 Tourist Guide Services
\n843 Data Processing Services
\n844 Database Services
\n932 Veterinary Services
\n84100 Consultancy Services Related to the Installation of Computer
\nHardware
\n84210 Systems and Software Consulting Services
\n87905 Translation and Interpretation Services
\n7523 Electronic Mail
\n7523 Voice Mail
\n7523 On-Line Information and Database Retrieval
\n7523 Electronic Data Interchange 11-24
\n96112 Motion Picture or Video Tape Production Services
\n96113 Motion Picture or Video Tape Distribution Services
\n96121 Motion Picture Projection Services
\n96122 Video Tape Projection Services
\n96311 Library Services
\n8672 Engineering Services
\n7512 Courier Services
\n– Biotechnology Services
\n– Exhibition Services
\n– Commercial Market Research
\n– Interior Design Services, Excluding Architecture
\n– Professional, Advisory and Consulting Services Relating to
\nAgriculture, Forestry, Fishing and Mining, Including Oilfield
\nServices
\nC. Construction Services
\nThe following construction services in the sense of Division 51 of the CPC as
\ncontained in WTO document MTN.GNS\/W\/120 are offered (others being
\nexcluded):
\nList of construction services offered:
\nCPC Description
\n512 General construction work for buildings
\n513 General construction work for civil engineering
\n514, 516 Installation and assembly work
\n517 Building completion and finishing work
\n511, 515, 518 Others
\nNotes to Section B:
\n1. Chapter 11 shall not apply to any procurement in respect of:
\n(a) construction contracts for chanceries abroad and headquarters
\nbuildings made by the Ministry of Foreign Affairs; and
\n(b) contracts made by the Internal Security Department, Criminal
\nInvestigation Department, Security Branch and Central Narcotics Bureau of
\nthe Ministry of Home Affairs as well as procurement that have security
\nconsiderations made by the Ministry.
\n2. The offer regarding services and construction services is subject to the
\nlimitations and conditions specified in the Government of Singapore\u2019s offer under
\nthe GATS negotiations. 11-25
\nAnnex 11.B
\nSingle Electronic Point of Access
\nFor Chile:
\nhttp:\/\/www.chilecompra.cl
\nFor New Zealand:
\nhttp:\/\/www.gets.govt.nz
\nFor Singapore:
\nhttp:\/\/www.gebiz.gov.sg
\nContact Point
\nFor Brunei Darussalam:
\nState Tender Board (STB)
\nMinistry of Finance
\nCommonwealth Drive
\nBrunei Darussalam BB 3910
\nFor New Zealand:
\nRegulatory and Competition Policy Branch
\nMinistry of Economic Development
\nLevel 8, 33 Bowen Street
\nPO Box 1473
\nWellington, New Zealand
\nFor Singapore:
\nExpenditure & Procurement Policies Unit
\nMinistry of Finance
\n100, High Street
\nSingapore 17943411-26
\nAnnex 11.C
\nThresholds
\nGoods Threshold : SDR 50,000
\nServices Threshold : SDR 50,000
\nConstruction Threshold : SDR 5,000,000
\nThresholds shall be converted to the respective national currencies in accordance
\nwith the following provisions:
\n1. Each Party shall calculate and publish the value of the thresholds under this
\nChapter expressed in the corresponding national currency. These calculations will
\nbe based on the conversion rates published by the IMF in its monthly \u201cInternational
\nFinancial Statistics\u201d.
\n2. The conversion rates shall be the average of the daily values of the
\nrespective national currency in terms of the SDR over the two years preceding
\n1 September, 1 October or 1 November of the year prior to the thresholds in
\nnational currency becoming effective which will be from 1 January.
\n3. Thresholds expressed in national currencies will be fixed for two years, ie
\ncalendar years, for all Parties. 12-1
\nCHAPTER 12
\nTRADE IN SERVICES
\nArticle 12.1: Definitions
\nFor the purposes of this Chapter:
\ncommercial presence means any type of business or professional establishment,
\nincluding through:
\n(a) the constitution, acquisition or maintenance of a legal person; or
\n(b) the creation or maintenance of a branch or a representative office, within
\nthe territory of a Party for the purpose of supplying a service;
\nenterprise means an enterprise as defined in Article 2.1 (Definitions of General
\nApplication), and a branch of an enterprise;
\nmeasures adopted or maintained by a Party means measures adopted or
\nmaintained by:
\n(a) central or local governments and authorities; and
\n(b) non-governmental bodies in the exercise of powers delegated by central
\nor local governments or authorities.
\nSuch measures include measures affecting:
\n(a) the production, distribution, marketing, sale, and delivery of a service;
\n(b) the purchase or use of, or payment for, a service;
\n(c) the access to and use of distribution, transport, or telecommunications
\nnetworks and services in connection with the supply of a service;
\n(d) the presence, including commercial presence in its territory of a service
\nsupplier of another Party; and
\n(e) the provision of a bond or other form of financial security as a condition
\nfor the supply of a service;
\nservice supplied in the exercise of governmental authority means any service
\nwhich is supplied neither on a commercial basis nor in competition with one or
\nmore service suppliers; 12-2
\nservice supplier of a Party means a person of a Party that seeks to supply or
\nsupplies a service;
\nspecialty air services means any non-transportation air services, such as aerial
\nfire fighting, sightseeing, spraying, surveying, mapping, photography, parachute
\njumping, glider towing, and helicopter-lift for logging and construction, and other
\nairborne agricultural, industrial, and inspection services;
\nstate enterprise means an enterprise that is owned, or controlled through
\nownership interests, by a Party;
\ntrade in services or supply of services means the supply of a service:
\n(a) from the territory of one Party into the territory of another Party (\u201ccrossborder mode\u201d);
\n(b) in the territory of one Party by a person of that Party to a person of
\nanother Party (\u201cconsumption abroad mode\u201d);
\n(c) by a service supplier of one Party, through commercial presence in the
\nterritory of another Party (\u201ccommercial presence mode\u201d); or
\n(d) by a national of a Party in the territory of another Party (\u201cpresence of
\nnatural persons mode\u201d).<\/p>\n
Article 12.2: Objectives
\nThe objectives of this Chapter are to facilitate expansion of trade in services
\non a mutually advantageous basis, under conditions of transparency and
\nprogressive liberalisation, while recognising the rights of Parties to regulate
\nservices, including to introduce new regulations, and the role of governments in
\nproviding and funding public services, giving due respect to national policy
\nobjectives including where these reflect local circumstances.
\nArticle 12.3: Scope
\n1. This Chapter shall apply to measures adopted or maintained by a Party
\naffecting trade in services.
\n2. This Chapter shall not apply to:
\n(a) financial services as defined in Annex 12.A; 12-3
\n(b) government procurement, which means any law, regulation, policy, or
\nprocedure of general application governing the procurement by
\ngovernmental agencies of services purchased for governmental
\npurposes and not with a view to commercial resale or with a view to use
\nin the supply of services for commercial sale;
\n1<\/p>\n
(c) services supplied in the exercise of governmental authority;
\n(d) subsidies or grants provided by a Party or a state enterprise,
\n2
\nor any
\nconditions attached to the receipt or continued receipt of such subsidies
\nor grants, whether or not such subsidies or grants are offered
\nexclusively to domestic services, service consumers or service
\nsuppliers;
\n(e) measures affecting natural persons seeking access to the employment
\nmarket of a Party; or
\n(f) measures regarding citizenship, nationality, residence or employment on
\na permanent basis.
\n3. This Chapter shall not apply to air transport services, whether scheduled or
\nnon-scheduled, or to related services in support of air services,
\n3
\nother than the
\nfollowing:
\n(a) aircraft repair and maintenance services during which an aircraft is
\nwithdrawn from service;
\n(b) the selling and marketing of air transport services;
\n(c) computer reservation system services;
\n(d) speciality air services; and
\n(e) international air transportation services as set out in the Multilateral
\nAgreement on the Liberalisation of International Air Transportation
\n(MALIAT), and, to the extent that there are any inconsistencies between
\nthis Agreement and those of the MALIAT, the rights and obligations
\nunder the MALIAT at any given time shall prevail.<\/p>\n
4. Nothing in this Chapter shall prevent a Party from applying measures to
\nregulate the entry of natural persons of another Party into, or their temporary stay
\nin, its territory, including those measures necessary to protect the integrity of, and<\/p>\n
1
\nIn the event of any inconsistency between this Chapter and Chapter 11 (Government
\nProcurement) the latter Chapter shall prevail to the extent of the inconsistency.
\n2
\nThis includes government supported loans, guarantees, and insurance.
\n3
\nFor example, ground handling services. 12-4
\nto ensure the orderly movement of natural persons across, its borders, provided
\nthat such measures are not applied in such a manner as to nullify or impair the
\nbenefits accruing to that other Party under the terms of this Chapter. The sole fact
\nof requiring a visa for natural persons of certain countries and not for those of
\nothers shall not be regarded as nullifying benefits under this Chapter.
\nArticle 12.4: National Treatment
\nEach Party shall accord to services and service suppliers of another Party,
\ntreatment no less favourable than that it accords, in like circumstances, to its own
\nservices and service suppliers.
\nArticle 12.5: Most-Favoured-Nation Treatment
\nEach Party shall accord to services and service suppliers of another Party
\ntreatment no less favourable than that it accords, in like circumstances, to services
\nand service suppliers of a non-Party.
\nArticle 12.6: Market Access
\nNo Party shall, either on the basis of a regional subdivision or on the basis
\nof its entire territory, adopt or maintain:
\n(a) limitations on the number of service suppliers whether in the form of
\nnumerical quotas, monopolies, exclusive service suppliers or the
\nrequirements of an economic needs test;
\n(b) limitations on the total value of service transactions or assets in the form
\nof numerical quotas or the requirement of an economic needs test;
\n(c) limitations on the total number of service operations or on the total
\nquantity of service output expressed in terms of designated numerical
\nunits in the form of quotas or the requirement of an economic needs
\ntest;
\n4<\/p>\n
(d) limitations on the total number of natural persons that may be employed
\nin a particular service sector or that a service supplier may employ and
\nwho are necessary for, and directly related to, the supply of a specific
\nservice in the form of numerical quotas or the requirement of an
\neconomic needs test; and<\/p>\n
4
\nThis paragraph does not cover measures of a Party which limit inputs for the supply of services. 12-5
\n(e) measures which restrict or require specific types of legal entity or joint
\nventure through which a service supplier may supply a service.
\nArticle 12.7: Local Presence
\nNo Party may require a service supplier of another Party to establish or
\nmaintain a representative office or any form of enterprise, or to be resident, in its
\nterritory as a condition for the supply of a service.
\nArticle 12.8: Non-conforming Measures
\n1. Articles 12.4, 12.5, 12.6 and 12.7 shall not apply to:
\n(a) any existing non-conforming measure that is maintained by a Party at:
\n(i) the central level of government, as set out by that Party in its
\nSchedule to Annex III, or
\n(ii) a local level of government;
\n(b) the continuation or prompt renewal of any non-conforming measure
\nreferred to in Subparagraph (a); or
\n(c) an amendment to any non-conforming measure referred to in
\nSubparagraph (a) to the extent that the amendment does not decrease
\nthe conformity of the measure, as it existed immediately before the
\namendment, with Articles 12.4, 12.5, 12.6 and 12.7.
\n2. Articles 12.4, 12.5, 12.6 and 12.7 do not apply to any measure that a Party
\nadopts or maintains with respect to sectors, sub-sectors, or activities, as set out in
\nits Schedule to Annex IV.
\nArticle 12.9: Review
\nThe Parties shall consult within two years of entry into force of this
\nAgreement and at least every three years thereafter, or as otherwise agreed, to
\nreview the implementation of this Chapter and consider other trade in services
\nissues of mutual interest, with a view to the progressive liberalisation of the trade in
\nservices among them on a mutually advantageous basis. 12-6
\nArticle 12.10: Domestic Regulation
\n1. Each Party shall ensure that all measures of general application affecting
\ntrade in services are administered in a reasonable, objective and impartial manner.
\n2. With a view to ensuring that measures relating to qualification requirements
\nand procedures, technical standards, and licensing requirements do not constitute
\nunnecessary barriers to trade in services, each Party shall ensure that any such
\nmeasures that it adopts or maintains are:
\n(a) based on objective and transparent criteria, such as competence and
\nthe ability to supply the service;
\n(b) not more burdensome than necessary to ensure the quality of the
\nservice; and
\n(c) in the case of licensing procedures, not in themselves a restriction on
\nthe supply of the service.
\n3. In determining whether a Party is in conformity with its obligations under
\nParagraph 2, account shall be taken of international standards of relevant
\ninternational organisations applied by that Party.
\n4. Where a Party requires authorisation for the supply of a service, the
\ncompetent authorities of that Party shall, within a reasonable period of time after
\nthe submission of an application considered complete under domestic laws and
\nregulations, inform the applicant of the decision concerning the application. At the
\nrequest of the applicant, the competent authorities of the Party shall provide,
\nwithout undue delay, information concerning the status of the application. This
\nobligation shall not apply to authorisation requirements that are within the scope of
\nArticle 12.8(2).
\n5. If the results of the negotiations related to Article VI:4 of GATS (or the
\nresults of any similar negotiations undertaken in other multilateral forums in which
\nthe Parties participate) enter into effect, the Parties shall jointly review these results
\nwith a view to their incorporation in this Agreement. The Parties agree to
\ncoordinate on such negotiations as appropriate.
\nArticle 12.11: Professional Qualifications and Registration
\n1. For the purposes of the fulfilment, in whole or in part, of its standards or
\ncriteria for the authorisation, licensing, or certification of service suppliers, and
\nsubject to the requirements of Paragraph 4, a Party may recognise the education 12-7
\nor experience obtained, requirements met, or licenses or certifications granted in a
\nparticular Party or non-Party.
\n2. Where a Party recognises, autonomously or by agreement or arrangement,
\nthe education or experience obtained, requirements met, or licenses or
\ncertifications granted in the territory of a non-Party, nothing in Article 12.5 shall be
\nconstrued to require the Party to accord such recognition to the education or
\nexperience obtained, requirements met, or licenses or certifications granted in the
\nterritory of another Party.
\n3. A Party that is a party to an agreement or arrangement of the type referred
\nto in Paragraph 1, whether existing or future, shall afford adequate opportunity for
\nanother Party, upon request, to negotiate its accession to such an agreement or
\narrangement or to negotiate comparable ones with it. Where a Party accords
\nrecognition autonomously, it shall afford adequate opportunity for another Party to
\ndemonstrate that education, experience, licenses, or certifications obtained or
\nrequirements met in that other Party\u2019s territory should be recognised.
\n4. A Party shall not accord recognition in a manner which would constitute a
\nmeans of discrimination between countries in the application of its standards or
\ncriteria for the authorisation, licensing, or certification of service suppliers, or a
\ndisguised restriction on trade in services.
\n5. As set out in Annex 12.B, the Parties agree to facilitate the establishment of
\ndialogue among their regulators and\/or relevant industry bodies with a view to the
\nachievement of early outcomes on recognition of professional qualifications and\/or
\nprofessional registration. Such outcomes may be achieved through
\nharmonisation, recognition of regulatory outcomes, recognition of professional
\nqualifications and professional registration awarded by one Party as a means of
\ncomplying with the regulatory requirements of another Party whether accorded
\nunilaterally or by mutual arrangement, including where appropriate through an
\nImplementing Arrangement.
\n6. The initial priority areas for work on professional qualification and
\nprofessional recognition requirements are engineers, architects, geologists,
\ngeophysicists, planners, and accountants. The priority areas and the recognition
\noutcomes achieved on priorities shall be reviewed within the time periods set out in
\nArticle 12.9.
\nArticle 12.12: Denial of Benefits
\nSubject to prior notification and consultation, a Party may deny the benefits
\nof this Chapter to: 12-8
\n(a) service suppliers of another Party where the service is being supplied by
\nan enterprise that is owned or controlled by persons of a non-Party and
\nthe enterprise has no substantive business operations in the territory of
\nany Party; or
\n(b) service suppliers of another Party where the service is being supplied by
\nan enterprise that is owned or controlled by persons of the denying
\nParty and the enterprise has no substantive business operations in the
\nterritory of any Party.
\nArticle 12.13: Transparency
\n1. Each Party shall publish promptly or otherwise make publicly available
\ninternational agreements pertaining to or affecting trade in services to which it is a
\nsignatory.
\n2. Each Party shall respond promptly to all requests by any other Party for
\nspecific information on any of its measures of general application which pertain to
\nor affect the operation of this Chapter or international agreements within the
\nmeaning of Paragraph 1.
\n3. Each Party shall also designate one or more enquiry points to provide
\nspecific information to the other Parties, upon request, on all such matters.
\nArticle 12.14: Subsidies
\nNotwithstanding Article 12.3, the Parties shall review the issue of disciplines
\non subsidies related to trade in services in the light of any disciplines agreed under
\nArticle XV of GATS with a view to their incorporation into this Agreement.
\nArticle 12.15: Payments and transfers
\nExcept as provided in Annex 12.C, each Party shall permit all payments and
\ntransfers for current transactions and capital movements, with regard to trade in
\nservices. 12-9
\nAnnex 12.A
\nFinancial service means any service of a financial nature. Financial services
\ninclude all insurance and insurance-related services, and all banking and other
\nfinancial services (excluding insurance), as well as services incidental or auxiliary
\nto a service of a financial nature. Without limiting this definition, financial services
\ninclude the following activities:
\nInsurance and insurance-related services
\n(a) direct insurance (including co-insurance):
\n(i) life,
\n(ii) non-life;
\n(b) reinsurance and retrocession;
\n(c) insurance intermediation, such as brokerage and agency;
\n(d) services auxiliary to insurance, such as consultancy, actuarial, risk
\nassessment, and claim settlement services.
\nBanking and other financial services (excluding insurance)
\n(e) acceptance of deposits and other repayable funds from the public;
\n(f) lending of all types, including consumer credit, mortgage credit, factoring
\nand financing of commercial transactions;
\n(g) financial leasing;
\n(h) all payment and money transmission services, including credit, charge
\nand debit cards, travellers cheques, and bankers drafts;
\n(i) guarantees and commitments;
\n(j) trading for own account or for account of customers, whether on an
\nexchange, in an over-the-counter market, or otherwise, the following:
\n(i) money market instruments (including cheques, bills, certificates of
\ndeposits,
\n(ii) foreign exchange,
\n(iii) derivative products including, futures and options, 12-10
\n(iv) exchange rate and interest rate instruments, including products
\nsuch as swaps, forward rate agreements,
\n(v) transferable securities, or
\n(vi) other negotiable instruments and financial assets, including bullion;
\n(k) participation in issues of all kinds of securities, including underwriting
\nand placement as agent (whether publicly or privately) and provision of
\nservices related to such issues;
\n(l) money broking;
\n(m) asset management, such as cash or portfolio management, all forms of
\ncollective investment management, pension fund management,
\ncustodial, depository, and trust services;
\n(n) settlement and clearing services for financial assets, including
\nsecurities, derivative products, and other negotiable instruments;
\n(o) provision and transfer of financial information, and financial data
\nprocessing and related software by suppliers of other financial services;
\nand
\n(p) advisory, intermediation, and other auxiliary financial services on all the
\nactivities listed in Subparagraphs (e) through (o), including credit
\nreference and analysis, investment and portfolio research and advice,
\nadvice on acquisitions and on corporate restructuring and strategy. 12-11
\nAnnex 12.B
\nProfessional Services
\nDevelopment of Professional Standards
\n1. Professional services means services, the provision of which requires
\nspecialised post secondary education, or equivalent training or experience, and for
\nwhich the right to practice is granted or restricted by a Party, but does not include
\nservices provided by trades persons or vessel and aircraft crew members.
\n2. The Parties shall encourage the relevant bodies in their respective territories
\nto develop mutually acceptable standards and criteria for licensing and certification
\nof professional service providers and to provide recommendations on mutual
\nrecognition to the Commission.
\n3. The standards and criteria referred to in Paragraph 2 may be developed
\nwith regard to the following matters:
\n(a) education – accreditation of schools or academic programs;
\n(b) examinations – qualifying examinations for licensing, including
\nalternative methods of assessment such as oral examinations and
\ninterviews;
\n(c) experience – length and nature of experience required for licensing;
\n(d) conduct and ethics – standards of professional conduct and the nature of
\ndisciplinary action for non-conformity with those standards;
\n(e) professional development and re-certification – continuing education and
\nongoing requirements to maintain professional certification;
\n(f) scope of practice – extent of, or limitations on, permissible activities;
\n(g) local knowledge – requirements for knowledge of such matters as local
\nlaws, regulations, language, geography, or climate; and
\n(h) consumer protection – alternatives to residency requirements, including
\nbonding, professional liability insurance, and client restitution funds, to
\nprovide for the protection of consumers.
\n4. On receipt of a recommendation referred to in Paragraph 2, the Commission
\nshall review the recommendation within a reasonable time to determine whether it
\nis consistent with this Agreement. Based on the Commission\u2019s review, each Party 12-12
\nshall encourage its respective competent authorities, where appropriate, to
\nimplement the recommendation within a mutually agreed time.
\nTemporary Licensing
\n5. Where the Parties agree, each Party shall encourage the relevant bodies in
\nits territory to develop procedures for the temporary licensing of professional
\nservice providers of the other Party.
\nReview
\n6. Subject to Article 12.11(6), the Commission shall review the implementation
\nof this Annex. The Commission shall include within the scope of its review any
\ndifferences in regulatory approaches between the Parties. Among other issues, a
\nParty may raise issues connected with the development of international standards
\nof relevant international organisations related to professional services.
\n5<\/p>\n
5
\nThe term \u201crelevant international organisations\u201d refers to international bodies whose membership is
\nopen to the relevant bodies of at least two Parties. 12-13
\nAnnex 12.C
\nPayments and Transfers
\nChile
\nWith respect to its obligations under Article 12.15 (Payments and Transfers), Chile
\nreserves:
\n1. The right, without prejudice to Paragraph 3 of this Annex, to maintain
\nexisting requirements that transfers from Chile of proceeds from the sale of all or
\nany part of an investment of an investor of a Party
\n6
\nor from the partial or complete
\nliquidation of the investment may not take place until a period not to exceed:
\n(a) in the case of an investment made pursuant to Decree Law 600 Foreign
\nInvestment Statute (Decreto Ley 600, Estatuto de la Inversion
\nExtranjera), one year has elapsed from the date of transfer to Chile; or
\n(b) in the case of an investment made pursuant to Law 18.657 Foreign
\nCapital Investment Fund Law (Ley 18.657, Ley Sobre Fondo de
\nInversiones de Capitales Extranjeros), five years have elapsed from the
\ndate of transfer to Chile;
\n2. The right to adopt measures, consistent with this Annex, establishing future
\nspecial voluntary investment programs in addition to the general regime for foreign
\ninvestment in Chile, except that any such measures may restrict transfers from
\nChile of proceeds from the sale of all or any part of an investment of an investor of
\nanother Party or from the partial or complete liquidation of the investment for a
\nperiod not to exceed five years from the date of transfer to Chile; and
\n3. The right of the Central Bank of Chile to maintain or adopt measures in
\nconformity with the Constitutional Organic Law of the Central Bank of Chile (Ley
\nOrg\u00e1nica Constitucional del Banco Central de Chile, Ley 18.840 \u2013 hereinafter Law
\n18.840) or other legislation, in order to ensure currency stability and the normal
\noperation of domestic and foreign payments. For this purpose, the Central Bank of
\nChile is empowered to regulate the supply of money and credit in circulation and
\ninternational credit and foreign exchange operations. The Central Bank of Chile is
\nempowered as well to issue regulations governing monetary, credit, financial, and
\nforeign exchange matters. Such measures include, inter alia, the establishment of
\nrestrictions or limitations on current payments and transfers (capital movements) to
\nor from Chile, as well as transactions related to them, such as requiring that
\ndeposits, investments or credits from or to a foreign country, be subject to a
\nreserve requirement (\u201cencaje\u201d).<\/p>\n
6
\nInvestment of an investor of a Party, refers to a commercial presence of a service supplier of a
\nParty. 12-14
\nNotwithstanding the above, the reserve requirement that the Central Bank of
\nChile can apply pursuant to Article 49 No. 2 of Law 18.840, shall not exceed 30 per
\ncent of the amount transferred and shall not be imposed for a period which
\nexceeds two years.
\n4. When applying measures under this Annex, Chile, as established in its
\nlegislation, shall not discriminate between the Parties to this Agreement and any
\nnon-Party with respect to transactions of the same nature. 12-15
\nAnnex 12.D
\nDL 600
\nChile
\n1. It is understood that this Chapter does not limit the right of the Foreign
\nInvestment Committee to regulate the terms and conditions of any investment
\ncontract under the Foreign Investment Statute, Decree Law 600. Furthermore, it is
\nalso understood that the Foreign Investment Committee is not obliged to enter into
\ninvestment contracts.
\n2. For greater certainty, commercial presence established in Chile under the
\nterms and conditions set out in an investment contract shall be subject to the rights
\nand obligations of this Chapter from the date of transfer pursuant to the investment
\ncontract. Execution of an investment contract under DL 600 by a service supplier
\nof another Party does not create any right on the part of the service supplier to
\nengage in particular activities in Chile. 13-1
\nCHAPTER 13
\nTEMPORARY ENTRY
\nArticle 13.1: Definitions
\nFor the purposes of this Chapter:
\nbusiness person means a natural person who has the nationality of a Party
\naccording to Annex 2.A, who is engaged in trade in goods or supply of services;
\nimmigration measure means any law, regulation, policy or procedure affecting the
\nentry and stay of foreign nationals;
\ntemporary entry means the entry into the territory of a Party by a business person
\nof the other Party without the intent to establish permanent residence.
\nArticle 13.2: Objectives
\n1. The objectives of this Chapter are to facilitate the temporary entry of
\nbusiness persons of any Party engaged in trade in goods or supply of services
\namong the Parties through streamlined, transparent immigration clearance
\nprocedures for temporary entry, while at the same time ensuring border security
\nand protecting the domestic labour force and permanent employment in the
\nterritories of the Parties.
\n2. The Parties affirm their voluntary commitments established in the APEC
\nBusiness Travel Card \u201cOperating Framework\u201d.
\nArticle 13.3: Scope
\n1. This Chapter does not apply to measures affecting natural persons seeking
\naccess to the employment market of a Party, nor shall it apply to measures
\nregarding citizenship, nationality, residence or employment on a permanent basis.
\n2. In respect of business persons seeking entry under Chapter 12 (Trade in
\nServices), the Parties affirm their rights and obligations under GATS, in particular
\nthe Annex on Movement of Natural Persons Supplying Services under the
\nAgreement, regarding each Parties\u2019 specific commitments relating to movement of
\nnatural persons. 13-2
\nArticle 13.4: Exchange of Information
\n1. No later than 6 months after the entry into force of this Agreement, the
\nParties shall exchange information on measures that affect the temporary entry of
\nbusiness persons through the contact points designated under Article 14.5
\n(Contact Points).
\n2. When a Party modifies or amends an immigration measure that affects the
\ntemporary entry of business persons, such modifications or amendments shall be
\npublished and made available in such a manner as will enable business persons of
\nthe other Parties to become acquainted with them.
\nArticle 13.5: Review
\n1. Two years after the entry into force of this Agreement, the Parties shall
\nreview the rules and conditions applicable to movement of natural persons, with a
\nview to achieving a comprehensive chapter on temporary entry, covering broad
\ncategories of business persons, such as may be proposed by any Party.
\n2. If the Parties achieve a mutually advantageous balance of rights in the
\nnegotiations foreseen in Paragraph 1, the review will also address the scope of the
\ndefinition of business person set out in Article 13.1. 14-1
\nCHAPTER 14<\/p>\n
TRANSPARENCY
\nArticle 14.1: Definitions
\nFor the purposes of this Chapter:
\nAdministrative ruling of general application means an administrative ruling or
\ninterpretation that applies to all persons and fact situations and that is relevant to
\nthe implementation of this Agreement but does not include:
\n(a) a determination or ruling made in administrative or quasi-judicial
\nproceedings that applies to a particular person, good, or service of
\nanother Party in a specific case; or
\n(b) a ruling that adjudicates with respect to a particular act or practice.
\nArticle 14.2: Publication
\n1. Each Party shall ensure that its laws, regulations, procedures, and
\nadministrative rulings of general application with respect to any matter covered by
\nthis Agreement are promptly published or otherwise made available
\n1
\nin such a
\nmanner as to enable interested persons and Parties to become acquainted with
\nthem.
\n2. When possible, each Party shall:
\n(a) publish in advance any measure referred to in Paragraph 1 that it
\nproposes to adopt; and
\n(b) provide, where appropriate, interested persons and Parties with a
\nreasonable opportunity to comment on such proposed measures.
\nArticle 14.3: Administrative Proceedings
\nWith a view to administering in a consistent, impartial, and reasonable
\nmanner all measures affecting matters covered by this Agreement, each Party
\nshall ensure in its administrative proceedings applying measures referred to in
\nArticle 14.2(1) to particular persons, goods, or services of the other Parties in
\nspecific cases that:<\/p>\n
1
\nIncluding through the Internet or in print form. 14-2
\n(a) wherever possible, persons of another Party that are directly affected
\nby a proceeding are provided reasonable notice, in accordance with
\ndomestic procedures, when a proceeding is initiated, including a
\ndescription of the nature of the proceeding, a statement of the legal
\nauthority under which the proceeding is initiated, and a general
\ndescription of any issues in question;
\n(b) such persons are afforded a reasonable opportunity to present facts
\nand arguments in support of their positions prior to any final
\nadministrative action, when time, the nature of the proceeding, and
\nthe public interest permit; and
\n(c) its procedures are in accordance with domestic law.
\nArticle 14.4: Review and Appeal
\n1. Each Party shall, where warranted, establish or maintain judicial, quasi-
\njudicial, or administrative tribunals, or procedures for the purpose of the prompt
\nreview and correction of final administrative actions regarding matters covered by
\nthis Agreement, other than those taken for prudential reasons. Such tribunals shall
\nbe impartial and independent of the office or authority entrusted with administrative
\nenforcement and shall not have any substantial interest in the outcome of the
\nmatter.
\n2. Each Party shall ensure that, in any such tribunals or procedures, the
\nParties to the proceedings are provided with the right to:<\/p>\n
(a) a reasonable opportunity to support or defend their respective
\npositions; and
\n(b) a decision based on the evidence and submissions of record or,
\nwhere required by domestic law, the record compiled by the
\nadministrative authority.
\n3. Each Party shall ensure, subject to appeal or further review as provided in
\nits domestic law, that such decision shall be implemented by, and shall govern the
\npractice of, the offices or authorities with respect to the administrative action at
\nissue.
\nArticle 14.5: Contact Points
\n1. Each Party shall designate a contact point or points to facilitate
\ncommunications among the Parties on any matter covered by this Agreement. 14-3
\n2. On the request of another Party, the contact points shall identify the office or
\nofficial responsible for the matter and assist, as necessary, in facilitating
\ncommunications with the requesting Party.
\nArticle 14.6: Notification and Provision of Information
\n1. Where a Party considers that any proposed or actual measure might
\nmaterially affect the operation of this Agreement or otherwise substantially affect
\nanother Party\u2019s interests under this Agreement, that Party shall notify the interested
\nParty, to the extent possible, of the proposed or actual measure.
\n2. On request of another Party, a Party shall provide information and respond
\nto questions pertaining to any actual or proposed measure, whether or not that
\nother Party has been previously notified of that measure.
\n3. Any notification, request, or information under this Article shall be conveyed
\nto the other Parties through their contact points.
\n4. Any notification or information provided under this Article shall be without
\nprejudice as to whether the measure is consistent with this Agreement. 15-1
\nCHAPTER 15
\nDISPUTE SETTLEMENT
\nArticle 15.1: Objectives
\n1. The Parties shall at all times endeavour to agree on the interpretation and
\napplication of this Agreement, and shall make every attempt through cooperation
\nand consultations to arrive at a mutually satisfactory resolution of any matter that
\nmight affect its operation.
\n2. The objective of this Chapter is to provide an effective, efficient and
\ntransparent process for consultations and settlement of disputes among the Parties
\nconcerning their rights and obligations under this Agreement.
\nArticle 15.2: Scope
\n1. Except as otherwise provided in this Agreement, the dispute settlement
\nprovisions of this Chapter shall apply:
\n(a) with respect to the avoidance or settlement of all disputes between
\nthe Parties regarding the interpretation or application of this
\nAgreement;
\n(b) wherever a Party considers that an actual or proposed measure of
\nanother Party is or would be inconsistent with the obligations of this
\nAgreement or that another Party has otherwise failed to carry out its
\nobligations under this Agreement; or
\n(c) wherever a Party considers that an actual or proposed measure of
\nanother Party causes nullification or impairment in the sense of
\nAnnex 15.A.
\n2. Subject to Article 15.3, this Chapter is without prejudice to the rights of the
\nParties to have recourse to dispute settlement procedures available under other
\nagreements to which they are parties.
\nArticle 15.3: Choice of Forum
\n1. Where a dispute regarding any matter arises under this Agreement and
\nunder another trade agreement to which the disputing Parties are party, the
\ncomplaining Party may select the forum in which to settle the dispute. 15-2
\n2. The complaining Party shall notify the other Parties in writing of its intention
\nto bring a dispute to a particular forum before doing so. Where a Party wishes to
\nhave recourse to a different dispute settlement forum from that notified by another
\ncomplaining Party, the complaining Parties shall consult with a view to reaching
\nagreement on a single forum in which to settle the dispute.
\n3. Once a complaining Party has initiated dispute settlement proceedings
\nunder Article 15.6, under the WTO Agreement or any other trade agreement to
\nwhich the disputing Parties are party,
\n1
\nthe forum selected shall be used to the
\nexclusion of the others.
\n4. Where there is more than one dispute on the same matter arising under this
\nAgreement against a Party, the disputes shall be joined.
\nArticle 15.4: Consultations
\n1. Any Party may request in writing consultations with any other Party with
\nrespect to any actual or proposed measure of that Party that it considers
\ninconsistent with this Agreement or any other matter that it considers might affect
\nthe operation of this Agreement, which shall be circulated to all Parties to this
\nAgreement through the Contact Points designated in accordance with Article 14.5
\n(Contact Points).
\n2. All such requests for consultations shall set out the reasons for the request,
\nincluding the identification of the actual or proposed measure or other matter at
\nissue and an indication of the legal basis for the complaint.
\n3. The Party to which a request for consultations is made shall reply to the
\nrequest in writing within 7 days after the date of its receipt. The response to the
\nrequest for consultations shall be circulated to all Parties.
\n4. Whenever a Party other than the consulting Parties considers that it has an
\ninterest in the consultations, such Party may notify the consulting Parties within 7
\ndays after the notification of the request for consultations, of its desire to be joined
\nin the consultations. The Party complained against shall give positive consideration
\nto any request from a Party to attend consultations requested by any other Party.
\n5. The Parties shall enter into consultations within a period of no more than:
\n(a) 15 days after the date of receipt of the request for matters concerning
\nperishable goods; or<\/p>\n
1
\nFor the purposes of this Article, dispute settlement proceedings under the WTO Agreement or any
\nother trade agreement are deemed to have been initiated upon a request by a Party for the
\nestablishment of a panel or by referral of a matter to an arbitral tribunal. 15-3
\n(b) 30 days after the date of receipt of the request for all other matters.
\n6. The consulting Parties shall make every attempt to reach a mutually
\nsatisfactory resolution of any matter through consultations under this Article. To
\nthis end, the consulting Parties shall:
\n(a) provide sufficient information to enable a full examination of how the
\nactual or proposed measure or other matter might affect the operation
\nand application of this Agreement; and
\n(b) treat any confidential information exchanged in the course of
\nconsultations on the same basis as the Party providing the information.
\n7. With a view to reaching a mutually satisfactory resolution of the matter, the
\nrequesting Party may make representations or proposals to the responding Party,
\nwhich shall give due consideration to the representations or proposals made to it.
\n8. In consultations under this Article, a consulting Party may request another
\nconsulting Party to make available personnel of its government agencies or other
\nregulatory bodies who have expertise in the matter subject to consultations.
\nArticle 15.5: Good Offices, Conciliation and Mediation
\n1. Good offices, conciliation and mediation are procedures undertaken
\nvoluntarily if the disputing Parties so agree.
\n2. Proceedings involving good offices, conciliation and mediation, and in
\nparticular the positions taken by the disputing Parties during these proceedings,
\nshall be confidential and without prejudice to the rights of any Party in any further
\nproceedings under these procedures.
\n3. Good offices, conciliation or mediation may be requested at any time by any
\ndisputing Party. They may begin at any time and be terminated at any time. Once
\nprocedures for good offices, conciliation or mediation are concluded without an
\nagreement between the disputing Parties, the complaining Party may request the
\nestablishment of an arbitral tribunal under Article 15.6.
\n4. If the disputing Parties agree, good offices, conciliation or mediation may
\ncontinue while the dispute proceeds for resolution before an arbitral tribunal
\nconvened under Article 15.6.
\nArticle 15.6: Establishment of an Arbitral Tribunal
\n1. The complaining Party may request, by means of a written notification 15-4
\naddressed to the Party complained against, the establishment of an arbitral tribunal
\nif the consulting Parties fail to resolve the matter within:
\n(a) 45 days after the date of receipt of the request for consultations under
\nArticle 15.4;
\n(b) 30 days after the date of receipt of the request for consultations under
\nArticle 15.4 in a matter regarding perishable goods; or
\n(c) such other period as the consulting Parties agree.
\n2. Such notification shall also be communicated to all Parties.
\n3. The request to establish an arbitral tribunal shall identify:
\n(a) the specific measure at issue;
\n(b) the legal basis of the complaint including the provisions of this
\nAgreement alleged to have been breached and any other relevant
\nprovisions; and
\n(c) the factual basis for the complaint.
\n4. Unless otherwise agreed by the disputing Parties, the arbitral tribunal shall
\nbe established and perform its functions in a manner consistent with the provisions
\nof this Chapter.
\n5. Notwithstanding Paragraphs 1, 3, and 4, an arbitral tribunal may not be
\nestablished to review a proposed measure.
\nArticle 15.7: Composition of Arbitral Tribunals
\n1. The arbitral tribunal shall comprise three members.
\n2. In the written notification pursuant to Article 15.6, the complaining Party or
\nParties requesting the establishment of an arbitral tribunal shall designate one
\nmember of that arbitral tribunal.
\n3. Within 15 days of the receipt of the notification referred to in Paragraph 2,
\nthe Party to which it was addressed shall designate one member of the arbitral
\ntribunal.
\n4. The disputing Parties shall designate by common agreement the
\nappointment of the third arbitrator within 15 days of the appointment of the second
\narbitrator. The member thus appointed shall chair the arbitral tribunal. 15-5
\n5. If all 3 members have not been designated or appointed within 30 days from
\nthe date of receipt of the notification referred to in Paragraph 2, at the request of
\nany Party to the dispute the necessary designations shall be made by the DirectorGeneral of the WTO within a further 30 days.
\n6. The Chair of the arbitral tribunal shall not be a national of any of the Parties,
\nnor have his or her usual place of residence in the territory of any of the Parties,
\nnor be employed by any of the Parties, nor have dealt with the matter in any
\ncapacity.
\n7. All arbitrators shall:
\n(a) have expertise or experience in law, international trade, other matters
\ncovered by this Agreement, or the resolution of disputes arising under
\ninternational trade agreements;
\n(b) be chosen strictly on the basis of objectivity, reliability, and sound
\njudgment;
\n(c) be independent of, and not be affiliated with or take instructions from,
\nany Party; and
\n(d) comply with the code of conduct for panelists established under the
\nUnderstanding on Rules and Procedures Governing the Settlement of
\nDisputes, which is part of the WTO Agreement.
\n8. Individuals may not serve as arbitrators for a dispute in which they have
\nparticipated pursuant to Article 15.5.
\n9. If an arbitrator appointed under this Article resigns or becomes unable to
\nact, a successor arbitrator shall be appointed within 15 days in accordance with the
\nselection procedure as prescribed for the appointment of the original arbitrator and
\nthe successor shall have all the powers and duties of the original arbitrator.
\n10. The date of establishment of the arbitral tribunal shall be the date on which
\nthe Chair is appointed. 15-6
\nArticle 15.8: Functions of Arbitral Tribunals
\n1. The function of an arbitral tribunal is to make an objective assessment of the
\ndispute before it, including an examination of the facts of the case and the
\napplicability of and conformity with this Agreement, and make such other findings
\nand rulings necessary for the resolution of the dispute referred to it as it thinks fit.
\n2. The findings and rulings of the arbitral tribunal shall be binding on the
\ndisputing Parties.
\n3. The arbitral tribunal shall, apart from the matters set out in Article 15.9,
\nregulate its own procedures in relation to the rights of Parties to be heard and its
\ndeliberations in consultation with the disputing Parties.
\n4. An arbitral tribunal shall take its decisions by consensus; provided that
\nwhere an arbitral tribunal is unable to reach consensus it may take its decisions by
\nmajority vote.
\nArticle 15.9: Rules of Procedure for Arbitral Tribunals
\n1. Unless the disputing Parties otherwise agree, the arbitral tribunal
\nproceedings shall be conducted in accordance with the Model Rules of Procedure
\nfor Arbitral Tribunals set out at Annex 15.B.
\n2. Unless the disputing Parties otherwise agree within 20 days from the date of
\ndelivery of the request for the establishment of the arbitral tribunal, the terms of
\nreference shall be:
\n“To examine, in the light of the relevant provisions of the Agreement, the
\nmatter referred to in the request for the establishment of an arbitral tribunal
\npursuant to Article 15.6 and to make findings of law and fact together with
\nthe reasons therefore for the resolution of the dispute.\u201d
\n3. If a complaining Party wishes to argue that a matter has nullified or impaired
\nbenefits, the terms of reference shall so indicate.
\n4. At the request of a disputing Party or on its own initiative, the arbitral tribunal
\nmay seek scientific information and technical advice from experts as it deems
\nappropriate. Any information so obtained shall be submitted to the disputing
\nParties and any third Party for comment.
\n5. Unless the arbitral tribunal determines otherwise because of the particular
\ncircumstances of the case, a disputing Party shall bear the cost of its appointed
\narbitrator and its own expenses. The cost of the Chair of the arbitral tribunal and 15-7
\nother expenses associated with the conduct of its proceedings shall be borne by
\nthe disputing Parties in equal shares.
\nArticle 15.10: Suspension or Termination of Proceedings
\n1. The disputing Parties may agree that the arbitral tribunal suspend its work at
\nany time for a period not exceeding 12 months from the date of such agreement. If
\nthe work of the arbitral tribunal has been suspended for more than 12 months, the
\nauthority for establishment of the tribunal shall lapse unless the disputing Parties
\nagree otherwise.
\n2. The disputing Parties may agree to terminate the proceedings of an arbitral
\ntribunal in the event that a mutually satisfactory solution to the dispute has been
\nfound.
\nArticle 15.11: Initial Report
\n1. The reports of the arbitral tribunal shall be drafted without the presence of
\nthe Parties and shall be based on the relevant provisions of this Agreement and
\nthe submissions and arguments of the Parties.
\n2. Unless the disputing Parties otherwise agree, the arbitral tribunal shall:
\n(a) within 90 days after the last arbitrator is selected; or
\n(b) in cases of urgency including those relating to perishable goods within
\n60 days after the last arbitrator is selected,
\npresent to the disputing Parties an initial report.
\n3. The initial report shall contain:
\n(a) findings of fact;
\n(b) the determination of the arbitral tribunal as to whether a disputing Party
\nhas not conformed with its obligations under this Agreement or that a
\ndisputing Party\u2019s measure is causing nullification or impairment in the
\nsense of Annex 15.A or any other determination requested in the terms
\nof reference; and
\n(c) the decision of the arbitral tribunal on the dispute.
\n4. In exceptional cases, if the arbitral tribunal considers it cannot release its
\ninitial report within 90 days, or within 60 days in cases of urgency, it shall inform 15-8
\nthe disputing Parties in writing of the reasons for the delay together with an
\nestimate of the period within which it will issue its report. Any delay shall not
\nexceed a further period of 30 days unless the disputing Parties otherwise agree.
\n5. Arbitrators may furnish separate opinions on matters not unanimously
\nagreed.
\n6. A disputing Party may submit written comments to the arbitral tribunal on its
\ninitial report within 15 days of presentation of the report or within such other period
\nas the disputing Parties may agree.
\n7. After considering any written comments on the initial report, the arbitral
\ntribunal may reconsider its report and make any further examination it considers
\nappropriate.
\nArticle 15.12: Final Report
\n1. The arbitral tribunal shall present a final report to the disputing Parties,
\nincluding any separate opinions on matters not unanimously agreed, within 30
\ndays of presentation of the initial report, unless the disputing Parties otherwise
\nagree. The disputing Parties shall release the final report to the public within 15
\ndays thereafter, subject to the protection of confidential information.
\n2. If in its final report the arbitral tribunal determines that a disputing Party has
\nnot conformed with its obligations under this Agreement, or that a Party\u2019s measure
\nis causing nullification or impairment within the sense of Annex 15.A, the decision,
\nwhenever possible, shall be to eliminate the non-conformity or the nullification or
\nimpairment.
\n3. No arbitral tribunal may, either in its initial report or its final report, disclose
\nwhich arbitrators are associated with majority or minority opinions.
\nArticle 15.13: Implementation of Final Report
\n1. The final report of an arbitral tribunal shall be binding on the disputing Parties
\nand shall not be subject to appeal.
\n2. Unless the disputing Parties decide otherwise, they shall implement the
\ndecision contained in the final report of the arbitral tribunal within a reasonable
\nperiod of time if it is not practicable to comply immediately.
\n3. If the arbitral tribunal determines that a measure of a Party that is taken by
\nlocal government is not in conformity with its obligations under this Agreement, the
\nParty shall notify the other Parties of the steps, such as legislative, regulatory or 15-9
\nadministrative steps, which the Party will take to implement the decision of the
\narbitral tribunal.
\n4. The reasonable period of time shall be mutually determined by the disputing
\nParties, or where the disputing Parties fail to agree on the reasonable period of
\ntime within 45 days of the release of the arbitral tribunal\u2019s report, either Party to the
\ndispute may refer the matter to the arbitral tribunal, which shall determine the
\nreasonable period of time following consultation with the disputing Parties.
\nArticle 15.14: Compliance within Reasonable Period of Time
\n1. Where there is disagreement as to the existence or consistency with this
\nAgreement of measures taken within the reasonable period of time to comply with
\nthe decision of the arbitral tribunal, such dispute shall be decided through recourse
\nto the dispute settlement procedures in this Chapter, including wherever possible
\nby resort to the original arbitral tribunal.
\n2. The arbitral tribunal shall provide its report to the disputing Parties within 60
\ndays after the date of the referral of the matter to it. When the arbitral tribunal
\nconsiders that it cannot provide its report within this timeframe, if shall inform the
\ndisputing Parties in writing of the reasons for the delay together with an estimate of
\nthe period within which it will submit its report. Any delay shall not exceed a
\nfurther period of 30 days unless the disputing Parties otherwise agree.
\nArticle 15.15: Compensation and Suspension of Benefits
\n1. If the Party concerned fails to bring the measure found to be inconsistent
\nwith the Agreement into compliance with the decision of the arbitral tribunal under
\nArticle 15.12 within the reasonable period of time established in accordance with
\nArticle 15.13, that Party shall, if so requested, enter into negotiations with the
\ncomplaining Party with a view to reaching a mutually satisfactory agreement on
\nany necessary compensatory adjustment.
\n2. If the arbitral tribunal decides that a Party\u2019s measure is causing nullification
\nor impairment in the sense of Annex 15.A and the nullification or impairment is not
\naddressed within the reasonable period of time established in accordance with
\nArticle 15.13, that Party shall, if so requested, enter into negotiations with the
\ncomplaining Party with a view to reaching a mutually satisfactory agreement on
\nany necessary compensatory adjustment. 15-10
\n3. A complaining Party may suspend the application of benefits of equivalent
\neffect to the responding Party 30 days after the end of the reasonable period of
\ntime established in accordance with Article 15.13. Benefits may not be suspended
\nwhile the complaining Party is pursuing negotiations under Paragraphs 1 or 2.
\n4. Compensation and the suspension of benefits shall be temporary measures.
\nNeither compensation nor the suspension of benefits is preferred to full
\nimplementation of a decision to bring a measure into conformity with this
\nAgreement. Compensation and suspension of benefits shall only be applied until
\nsuch time as the measure found to be inconsistent with this Agreement has been
\nremoved, or the Party that must implement the arbitral tribunal\u2019s decision has done
\nso, or a mutually satisfactory solution is reached.
\n5. In considering what benefits to suspend pursuant to Paragraph 3:
\n(a) the complaining Party should first seek to suspend benefits in the same
\nsector(s) as that affected by the measure or other matter that the arbitral
\ntribunal has found to be inconsistent with the obligations derived of this
\nAgreement or to have caused nullification or impairment in the sense of
\nAnnex 15.A; and
\n(b) if the complaining Party considers that it is not practicable or effective to
\nsuspend benefits in the same sector(s), it may suspend benefits in other
\nsectors. The communication in which it announces such a decision shall
\nindicate the reasons on which it is based.
\n6. Upon written request of the Party concerned, the original arbitral tribunal
\nshall determine whether the level of benefits suspended by the complaining Party
\nis excessive pursuant to Paragraph 3. If the arbitral tribunal cannot be established
\nwith its original arbitrators, the proceeding set out in Article 15.7 shall be applied.
\n7. The arbitral tribunal shall present its determination within 60 days from the
\nrequest made pursuant to Paragraph 6, or if an arbitral tribunal cannot be
\nestablished with its original arbitrators, from the date on which the last arbitrator is
\nselected. The ruling of the arbitral tribunal shall be final and binding. It shall be
\ndelivered to the disputing Parties and be made publicly available.
\nArticle 15.16 : Compliance Review
\n1. Without prejudice to the procedures in Article 15.15, if the responding Party
\nconsiders that it has eliminated the non-conformity or the nullification or impairment
\nthat the arbitral tribunal found, it may refer the matter to the arbitral tribunal by
\nproviding written notice to the other Party. The arbitral tribunal shall issue its report
\non the matter within 90 days after the responding Party provides notice. 15-11
\n2. If the arbitral tribunal decides that the responding Party has eliminated the
\nnon-conformity or the nullification or impairment, the complaining Party shall
\npromptly reinstate any benefits it has suspended under in Article 15.15.15-12
\nAnnex 15.A
\nNullification or Impairment
\nIf any Party considers that any benefits it could reasonably have expected to
\naccrue to it under any provision of:
\n(a) Chapters 3 through 5 (Trade in Goods, Rules of Origin and Customs
\nProcedures);
\n(b) Chapter 8 (Technical Barriers to Trade);
\n(c) Chapter 11 (Government Procurement); or
\n(d) Chapter 12 (Trade in Services),
\nis being nullified or impaired as a result of the application of any measure that is
\nnot inconsistent with this Agreement, the Party may have recourse to dispute
\nsettlement under this Chapter. 15-13
\nAnnex 15.B
\nModel Rules of Procedure
\nfor Arbitral Tribunals
\nGeneral provisions
\n1. For the purpose of Chapter 15 and this Annex:
\narbitral tribunal means an arbitral tribunal established pursuant to Article 15.6
\n(Establishment of an Arbitral Tribunal);
\ncomplaining Party means Party that requests the establishment of an arbitral
\ntribunal under Article 15.6 (Establishment of an Arbitral Tribunal);
\ndisputing Party or Parties means the Party or Parties to the dispute;
\nthird Party means a Party to this Agreement which has notified its interest in the
\ndispute to the Parties to the dispute in accordance with Paragraph 8.
\nresponding Party means a Party that has been complained against pursuant to
\nArticle 15.6 (Establishment of an Arbitral Tribunal).
\nNotifications
\n2. Any request, notice, written submissions or other document shall be
\ndelivered by a Party or the arbitral tribunal by delivery against receipt, registered
\npost, courier, facsimile transmission, telex, telegram or any other means of
\ntelecommunication that provides a record of the sending thereof.
\n3. A disputing Party shall provide a copy of each of its written submissions to
\nthe other disputing Party or Parties, to a third Party, and to each of the arbitrators.
\nA copy of the document shall also be provided in electronic format.
\n4. All notifications shall be made and delivered to each disputing Party and any
\nthird Party.
\n5. Minor errors of a clerical nature in any request, notice, written submission or
\nother document related to the arbitral tribunal proceeding may be corrected by
\ndelivery of a new document clearly indicating the changes. 15-14
\n6. If the last day for delivery of a document falls on a legal holiday of a
\ndisputing Party or third Party, the document may be delivered on the next business
\nday.
\nCommencing the arbitration
\n7. Unless the disputing Parties otherwise agree, they shall meet with the
\narbitral tribunal within 7 days following the composition of the arbitral tribunal in
\norder to determine such matters that the disputing Parties or the arbitral tribunal
\ndeem appropriate, including the remuneration and expenses that shall be paid to
\nthe Chair of the arbitral tribunal, which normally shall conform to the WTO
\nstandards.
\nThird Parties
\n8. A Party to this Agreement which has an interest in the matter before the
\narbitral tribunal may notify the disputing Parties of this interest no later than 10
\ndays after the request for the establishment of the arbitral tribunal. In the case of a
\nmatter regarding perishable goods an interest has to be notified no later than
\n7 days after the request for the establishment of the arbitral tribunal.
\n9. A third Party shall have an opportunity to make written submissions to the
\narbitral tribunal and be present at the hearings of the arbitral tribunal.
\nInitial submissions
\n10. The complaining Party shall deliver its initial written submission no later than
\n20 days after the composition of the arbitral tribunal. The responding Party shall
\ndeliver its written counter-submission no later than 20 days after the date of
\ndelivery of the initial written submission. A third Party may deliver a written
\nsubmission 7 days after the date of delivery of the counter-submission.
\nOperation of arbitral tribunals
\n11. The chair of the arbitral tribunal shall preside at all of its meetings.
\n12. Except as otherwise provided in these rules, the arbitral tribunal may
\nconduct its activities by any means, including telephone, facsimile transmissions or
\ncomputer links.
\n13. Only arbitrators may take part in the deliberations of the arbitral tribunal. 15-15
\n14. The drafting of any decision and ruling shall remain the exclusive
\nresponsibility of the arbitral tribunal.
\n15. Where a procedural question arises that is not covered by these rules, an
\narbitral tribunal may adopt an appropriate procedure that is not inconsistent with
\nthis Agreement.
\n16. When the arbitral tribunal considers that there is a need to modify any time
\nperiod applicable in the proceeding, or to make any other procedural or
\nadministrative adjustment in the proceeding, it shall inform the disputing Parties
\nand any third Party in writing of the reasons for the modification or adjustment with
\nthe indication of the period or adjustment needed.
\nHearings
\n17. The Chair shall fix the date and time of the hearing in consultation with the
\ndisputing Parties and the other members of the arbitral tribunal. The Chair shall
\nnotify in writing to the disputing Parties and any third Party the date, time and
\nlocation of the hearing. Unless either of the disputing Parties disagrees, the
\narbitral tribunal may decide not to convene a hearing.
\n18. Unless the disputing Parties otherwise agree, the hearing shall be held in
\nthe responding Party\u2019s territory. The responding Party shall be in charge of the
\nlogistical administration of dispute settlement proceedings, in particular the
\norganisation of hearings, unless otherwise agreed.
\n19. The arbitral tribunal may convene additional hearings if the Parties so agree.
\n20. All arbitrators shall be present at all hearings.
\n21. No later than five days before the date of a hearing, each disputing Party
\nand any third Party shall deliver a list of the names of representatives or advisers
\nwho will be attending the hearing.
\n21. The hearings of the arbitral tribunals shall be held in closed session, unless
\nthe disputing Parties decide otherwise. If the disputing Parties decide that the
\nhearing is open to the public, part of the hearing may however be held in closed
\nsession, if the arbitral tribunal, on application by the disputing Parties, so decides
\nfor serious reasons. In particular, the arbitral tribunal shall meet in closed sessions
\nwhen the submission and arguments of a disputing Party contain business
\nconfidential information. If the hearing is open to the public, the date, time and
\nlocation of the hearing shall also be made publicly available by the disputing Party
\nin charge of the logistical administration of the proceeding. 15-16
\n22. The arbitral tribunal shall conduct the hearing in the following manner:
\nargument of the complaining Party or Parties; argument of the responding Party;
\nrebuttal arguments of the disputing Parties; the views of third Parties; the reply of
\nthe complaining Party; the counter-reply of the responding Party. The Chair may
\nset time limits for oral arguments to ensure that each disputing Party are afforded
\nequal time.
\n23. The arbitral tribunal may direct questions to any disputing Party or third
\nParty at any time during a hearing.
\n24. Within 10 days after the date of the hearing, each disputing Party may
\ndeliver a supplementary written submission responding to any matter that arose
\nduring the hearing.
\nQuestions in writing
\n25. The arbitral tribunal may at any time during the proceedings address
\nquestions in writing to any disputing Parties and to any third Party. The arbitral
\ntribunal shall deliver the written questions to the disputing Party or Parties and to
\nany third Party to whom the questions are addressed.
\n26. A disputing Party or third Party to whom the arbitral tribunal addresses
\nwritten questions shall deliver a copy of any written reply to the other disputing
\nParty or any third Party and to the arbitral tribunal. Each disputing Party or any
\nthird Party shall be given the opportunity to provide written comments on the reply
\nwithin 5 days after the date of delivery.
\nConfidentiality
\n27. The disputing Parties and third Parties shall maintain the confidentiality of
\nthe arbitral tribunal\u2019s hearings, to the extent that the arbitral tribunal holds the
\nhearing in closed session under rule 21. Each disputing Party and third Party shall
\ntreat as confidential any information submitted by any other disputing or third Party
\nto the arbitral tribunal which that Party has designated as confidential. Where a
\nParty to a dispute submits a confidential version of its written submissions to the
\narbitral tribunal, it shall also, upon request of the other disputing Party, provide a
\nnon-confidential summary of the information contained in its submissions that could
\nbe disclosed to the public, no later than 15 days after the hearing, whichever is
\nlater. Nothing in these rules shall preclude a disputing Party or third Party from
\ndisclosing statements of its own positions to the public. 15-17
\nEx parte contacts
\n28. The arbitral tribunal shall not meet or contact a disputing Party in the
\nabsence of the other disputing Parties.
\n29 No disputing Party may contact any arbitrator in relation to the dispute in the
\nabsence of the other disputing Parties or the other arbitrators.
\n30. No arbitrator may discuss an aspect of the subject matter of the proceeding
\nwith a disputing Party or Parties in the absence of the other arbitrators.
\nRole of experts
\n31. Upon request of a disputing Party or on its own initiative, the arbitral tribunal
\nmay obtain information and technical advice from any person or body that it deems
\nappropriate. Any information so obtained shall be submitted to the Parties for
\ncomments.
\n32. When a request is made for a written report of an expert, any time period
\napplicable to the arbitral tribunal proceeding shall be suspended for a period
\nbeginning on the date of delivery of the request and ending on the date the report
\nis delivered to the arbitral tribunal.
\nAmicus curiae submissions
\n33. The arbitral tribunal shall have the authority to accept and consider amicus
\ncuriae submissions from any persons and entities in the territories of the disputing
\nParties and from interested persons and entities outside the territory of the
\ndisputing Parties.
\n34. Any such submissions shall fulfil the following requirements: be made within
\n10 days following the composition of the arbitral tribunal; are concise and in no
\ncase longer than 15 typed pages, included any annexes; and are directly relevant
\nto the factual and legal issue under consideration by the arbitral tribunal.
\n35. The submission shall contain a description of the person, whether natural or
\nlegal, making the submission, including the nature of its activities and the source of
\nits financing, and specify the nature of the interest that that person has in the
\narbitration proceeding.
\n36. The arbitral tribunal shall list in its ruling all the submissions that it has
\nreceived and that conform to the provisions of the above rules. 15-18
\nCases of urgency
\n37. In cases of urgency referred to in Article 15.4 (Consultations), the arbitral
\ntribunal shall appropriately adjust the time periods mentioned in these rules.
\nTranslation and interpretation
\n38. The working language of the dispute settlement proceedings shall be
\nEnglish, except where the responding Party has Spanish as its official language, in
\nwhich case the working languages shall be English and Spanish.
\n39. Written submissions, documents, oral arguments or presentations at the
\nhearings, initial and final reports of the arbitral tribunal, as well as all other written
\nor oral communications between the disputing Parties and the arbitral tribunal,
\nshall be conducted in the working language or languages.
\n40. The costs incurred to prepare a translation of an arbitral tribunal ruling shall
\nbe borne equally by the Parties.
\n41. Any Party may provide comments on a translated version of a document
\nthat is prepared in accordance with these rules.
\nComputation of time
\n42. Where anything under this Agreement or these rules is to be done, or the
\narbitral tribunal requires anything to be done, within a number of days after, before
\nor of a specified date or event, the specified date or the date on which the specified
\nevent occurs shall not be included in calculating that number of days.
\n43. Where, by reason of the operation of rule 6, a Party receives a document on
\na date other than the date on which the same document is received by the other
\nParty, any period of time the calculation of which is dependent on such receipt
\nshall be calculated from the date of receipt of the last such document. 16-1
\nCHAPTER 16
\nSTRATEGIC PARTNERSHIP
\nArticle 16.1: Definitions
\nFor the purposes of this Chapter, primary industry encompasses activities
\nin the agriculture and fisheries sectors (including activities in production,
\nharvesting, processing and manufacturing of food products and their derivatives)
\nand the forestry sector.
\nArticle 16.2: Objectives
\n1. The Parties agree to establish a framework for cooperation between two or
\nmore of the Parties as a means to expand and enhance the benefits of this
\nAgreement for building a strategic economic partnership between them.
\n2. The Parties will establish close cooperation aimed inter alia at:
\n(a) strengthening and building on existing cooperative relationships among
\nthe Parties, including a focus on innovation, research and
\ndevelopment;
\n(b) creating new opportunities for trade and investment, promoting
\ncompetitiveness and innovation including the involvement of public and
\nprivate sectors;
\n(c) supporting the important role of the private sector in promoting and
\nbuilding strategic alliances to encourage mutual economic growth and
\ndevelopment;
\n(d) encouraging the presence of the Parties and their goods and services in
\nthe respective markets of Asia, Pacific and Latin America; and
\n(e) increasing the level of and deepening cooperation activities among the
\nParties in areas of mutual interest.
\nArticle 16.3: Scope
\n1. The Parties affirm the importance of all forms of cooperation, with particular
\nattention given to economic, scientific, technological, educational, cultural and
\nprimary industry cooperation in contributing towards implementation of the 16-2
\nobjectives and principles of this Agreement. Cooperation among the Parties may
\nbe extended to other areas as agreed by the Parties.
\n2. Possible areas of cooperation will be developed through Implementing
\nArrangements.
\n3. Cooperation among the Parties should contribute to achieving the objectives
\nof the Trans-Pacific Strategic Economic Partnership Agreement through the
\nidentification and development of innovative cooperation programmes capable of
\nproviding added value to their relationships.
\n4. Cooperation among the Parties under this Chapter will supplement the
\ncooperation and cooperative activities among the Parties set out in other Chapters
\nof this Agreement.
\nArticle 16.4: Economic Cooperation
\n1. The aims of economic cooperation will be:
\n(a) to build on existing agreements or arrangements already in place for
\ntrade and economic cooperation; and
\n(b) to advance and strengthen trade and economic relations among the
\nParties.
\n2. In pursuit of the objectives in Paragraph 1, the Parties will encourage and
\nfacilitate, as appropriate, the following activities, including, but not limited to:
\n(a) policy dialogue and regular exchanges of information and views on ways
\nto promote and expand trade in goods and services among the Parties;
\n(b) keeping each other informed of important economic and trade issues,
\nand any impediments to furthering their economic cooperation;
\n(c) providing assistance and facilities to businesspersons and trade
\nmissions that visit each other\u2019s country with the knowledge and support
\nof the relevant agencies;
\n(d) supporting dialogue and exchanges of experience among the respective
\nbusiness communities of the Parties;
\n(e) establishing and developing mechanisms for providing information and
\nidentifying opportunities for business cooperation, trade in goods and
\nservices, investment, and government procurement;16-3
\n(f) stimulating and facilitating actions of public and\/or private sectors in
\nareas of economic interest, including to explore opportunities in third
\nmarkets; and
\n(g) working together to promote the use of English and other languages as
\ntools for small and medium enterprises, and in the use of information
\ntechnology tools to assist the learning process, as agreed by the APEC
\nEconomic Leaders at their 12
\nth
\nmeeting.
\nArticle 16.5: Cooperation in Research, Science and Technology
\n1. The aims of cooperation in research, science and technology, carried out in
\nthe mutual interest of all Parties and in compliance with their policies, particularly
\nas regards the rules for use of intellectual property resulting from research, will be:
\n(a) to build on existing agreements or arrangements already in place for
\ncooperation in research, science and technology;
\n(b) to encourage, where appropriate, government agencies, research
\ninstitutions, universities, private companies and other research
\norganisations in each other\u2019s country to conclude direct arrangements
\nin support of cooperative activities, programmes or projects within the
\nframework of this Agreement; and
\n(c) to focus cooperative activities towards sectors where mutual and
\ncomplementary interests exist.
\n2. In pursuit of the objectives in Paragraph 1, the Parties will encourage and
\nfacilitate, as appropriate, the following activities, including, but not limited to:
\n(a) identifying strategies, in consultation with universities and research
\ncentres, that encourage joint postgraduate studies and research visits;
\n(b) exchange of scientists, researchers and technical experts;
\n(c) exchange of information and documentation;
\n(d) promotion of public\/private sector partnerships in the support of the
\ndevelopment of innovative products and services; and
\n(e) cooperation in regional and other governmental and nongovernmental
\nforums in areas of mutual interest. 16-4
\nArticle 16.6: Education
\n1. The aims of education cooperation will be:
\n(a) to build on existing agreements or arrangements already in place for
\ncooperation in education; and
\n(b) to promote networking, mutual understanding and close working
\nrelationships in the area of education among the Parties.
\n2. In pursuit of the objectives in Paragraph 1, the Parties will encourage and
\nfacilitate, as appropriate, exchanges between and among their respective
\neducation-related agencies, institutions, organisations, in fields such as:
\n(a) education quality assurance processes;
\n(b) on-line and distance education at all levels;
\n(c) primary and secondary education systems;
\n(d) higher education;
\n(e) technical education and vocational training;
\n(f) industry collaboration for technical and vocational training; and
\n(g) teacher training and development.
\n3. Cooperation in education can focus on:
\n(a) the exchange of information such as teaching and curriculum materials,
\nteaching aids, and demonstration materials, as well as the organisation
\nof relevant specialised exhibitions and seminars;
\n(b) joint planning and implementation of programs and projects, and joint
\ncoordination of targeted activities in agreed fields;
\n(c) development of collaborative training, joint research and development,
\nacross graduate and postgraduate studies;
\n(d) the exchange of teaching staff, administrators, researchers and students
\nin relation to programmes that will be of mutual benefit;
\n(e) gaining understanding of each Parties\u2019 education systems and policies
\nincluding information relevant to the interpretation and evaluation of
\nqualifications, potentially leading to discussions between institutions of 16-5
\nhigher learning on academic credit transfer and the possibility of mutual
\nrecognition of qualifications;
\n(f) collaboration on the development of innovative quality assurance
\nresources to support learning and assessment, and the professional
\ndevelopment of teachers and trainers in training and vocational
\neducation; and
\n(g) encouraging and facilitating the development of public and \/ or private
\nventures in education.
\nArticle 16.7: Cultural Cooperation
\nThe aims of cultural cooperation will be to:
\n(a) build on existing agreements or arrangements already in place for
\ncultural cooperation; and
\n(b) promote the exchange of information and practice among the Parties.
\nArticle 16.8: Primary Industry
\n1. The aims of cooperation in primary industry, carried out in the mutual
\ninterest of all Parties and in compliance with their policies, will be:
\n(a) to build on existing Agreements or Arrangements already in place for
\ncooperation in agriculture and forestry;
\n(b) to encourage and promote better understanding between the primary
\nsectors in each country;
\n(c) to encourage, where appropriate, the development of scientific
\nknowledge and technical cooperation among government agencies,
\nresearch institutions, universities, private companies and other research
\norganisations in each others\u2019 countries and to conclude direct
\narrangements in support of cooperative activities, programmes or
\nprojects within the framework of this Agreement;
\n(d) to direct cooperative activities towards sectors where mutual and
\ncomplementary interests exist; and
\n(e) to promote international trade liberalisation in the primary industry
\nsectors, develop trade and promote commercial partnerships, including
\ncommon projects in third countries. 16-6
\n2. In pursuit of the objectives in Paragraph 1, the Parties will encourage and
\nfacilitate, as appropriate, the following activities in the primary industry sectors
\nincluding, but not limited to:
\n(a) encouraging the expansion of opportunities for contact;
\n(b) promoting the exchange of information, ideas and research;
\n(c) encouraging specific industry exchanges and joint ventures, including in
\nrelation to research, to develop the primary industry sectors;
\n(d) encouraging universities in their countries to strengthen their links in the
\narea of primary industry sectors including through the exploration of
\nmulti-disciplinary and multi-institutional degree courses; and
\n(e) encouraging the promotion of primary industry sectors related education
\nservices and other activities.
\n3. To facilitate cooperation in the primary industry sectors, the Parties will also
\nwork towards:
\n(a) promoting compliance with, and enforcement of, international rules
\nrelating to trade in primary industry sectors products;
\n(b) promoting transparency and public participation in decision-making
\nrelating to the Parties\u2019 primary industry sectors; and
\n(c) identifying and resolving issues that hamper the effectiveness of
\ncooperation in the primary industry sectors.
\nArticle 16.9: Mechanisms for Cooperation
\n1. The Parties will designate a contact point to facilitate communication on
\npossible cooperation activities. The contact point will work with government
\nagencies, private sector representatives and educational and research institutions
\nin the operation of this Chapter.
\n2. The Parties agree that the mechanisms for cooperation will take the form of:
\n(a) regular meetings of the Commission to discuss cooperative areas of
\ninterest; and
\n(b) meetings as required between the relevant institutions (including, but not
\nlimited to, the relevant government agencies, Crown Research 16-7
\nInstitutes, and universities) of the Parties to help foster closer
\ncooperation in thematic areas.
\n3. The Parties will make maximum use of diplomatic channels to promote
\ndialogue and cooperation consistent with this Agreement.
\nArticle 16.10: Cooperation with Non-Parties
\nThe Parties recognise the value of international cooperation for the
\npromotion of sustainable development and agree to develop, where appropriate,
\nprojects of mutual interest, with non-Parties.
\nArticle 16.11: Resources
\nWith the aim of contributing to fulfilling the cooperation objectives of this
\nAgreement, the Parties commit themselves to providing, within the limits of their
\nown capacities and through their own channels, the appropriate resources,
\nincluding financial resources.
\nArticle 16.12: Specific Functions for the Commission in Cooperation Matters
\nNotwithstanding the provisions of Article 17.2 (Functions of the Commission)
\nthe Commission shall have, in particular, the following functions:
\n(a) oversight of the implementation of the cooperation framework agreed by
\nthe Parties;
\n(b) encouraging the Parties to undertake cooperation activities under the
\ncooperation framework agreed by the Parties;
\n(c) making recommendations on the cooperation activities under this
\nChapter, in accordance with the strategic priorities of the Parties; and
\n(d) review, through regular reporting from each Party, the operation of this
\nChapter and the application and fulfillment of its objectives. 17-1
\nCHAPTER 17
\nADMINISTRATIVE AND INSTITUTIONAL PROVISIONS
\nArticle 17.1: Establishment of the Trans-Pacific Strategic Economic
\nPartnership Commission
\nThe Parties hereby establish a Trans-Pacific Strategic Economic
\nPartnership Commission (Commission) which may meet at the level of Ministers or
\nsenior officials, as mutually determined by the Parties. Each Party shall be
\nresponsible for the composition of its delegation.
\nArticle 17. 2: Functions of the Commission
\n1. The Commission shall:
\n(a) consider any matters relating to the implementation of this Agreement;
\n(b) review within 2 years of entry into force of this Agreement and at least
\nevery 3 years thereafter the economic relationship and partnership
\namong the Parties, consider any proposal to amend this Agreement or
\nits Annexes and otherwise oversee the further elaboration of this
\nAgreement;
\n(c) supervise the work of all Committees and working groups established
\nunder this Agreement;
\n(d) explore measures for the further expansion of trade and investment
\namong the Parties and identify appropriate areas of commercial,
\nindustrial and technical cooperation between relevant enterprises and
\norganisations of the Parties; and
\n(e) consider any other matter that may affect the operation of this
\nAgreement.
\n2. The Commission may:
\n(a) establish committees and working groups, refer matters to any
\ncommittee or working group for advice, and consider matters raised by
\nany committee or working group; 17-2
\n(b) further the implementation of the Agreement\u2019s objectives by approving
\nany modifications
\n1
\nof, inter alia:
\n(i) the Schedules contained in Annex I (Elimination of Customs
\nDuties), by accelerating the elimination of customs duties;
\n(ii) the rules of origin established in Annex II (Specific Rules of
\nOrigin); or
\n(iii) the lists of entities and covered goods and services and
\nthresholds contained in Annexes 11.A and 11.C of the Chapter
\n11 (Government Procurement).
\n(c) further the implementation of the Agreement\u2019s objectives through
\nImplementing Arrangements;
\n(d) seek to resolve differences or disputes that may arise regarding the
\ninterpretation or application of this Agreement;
\n(e) seek the advice of non-governmental persons or groups on any matter
\nfalling within its responsibilities where this would help the Commission
\nmake an informed decision; and
\n(f) take such other action in the exercise of its functions as the Parties may
\nagree.
\nArticle 17.3: Rules of Procedure of the Commission<\/p>\n
1. The Commission may take decisions on any matter within its functions as
\nset out in Article 17.2 by mutual agreement of those Parties present at the meeting
\nof the Commission. Any decision affecting a Party shall only be taken by the
\nCommission with the express agreement of that Party.
\n2. The Commission shall convene annually, or at such other times as the
\nParties may mutually agree. Annual sessions of the Commission shall be chaired
\nsuccessively by each Party. Other sessions of the Commission shall be chaired
\nby the Party convening the meeting.<\/p>\n
1
\nThe acceptance of any modification by a Party is subject to the completion of any necessary
\ndomestic legal procedures of that Party. Chile shall implement the actions of the Commission
\nthrough Acuerdos de Ejecuci\u00f3n, in accordance with article 50, numeral 1, second paragraph, of the
\nof the Constituci\u00f3n Pol\u00edtica de la Rep\u00fablica de Chile. 17-3
\n3. The Party chairing a session of the Commission shall provide any necessary
\nadministrative support for such session. Decisions of the Commission shall be
\nnotified to the Parties by the Party chairing that session of the Commission. 18-1
\nCHAPTER 18
\nGENERAL PROVISIONS
\nArticle 18.1: Annexes and Footnotes
\nThe Annexes and footnotes to this Agreement shall constitute an integral
\npart of this Agreement.
\nArticle 18.2: Relation to Other International Agreements
\nNothing in this Agreement shall derogate from the existing rights and
\nobligations of a Party under the WTO Agreement or any other multilateral or
\nbilateral agreement to which it is a party.
\nArticle 18.3: Succession of Treaties or International Agreements
\nAny reference in this Agreement to any other treaty or international
\nagreement shall be made in the same terms to its successor treaty or international
\nagreement to which a Party is party.
\nArticle 18.4: Application
\nEach Party is fully responsible for the observance of all provisions in this
\nAgreement and shall take such reasonable measures as may be available to it to
\nensure their observance by local government and authorities.
\n1
\nArticle 18.5: Distinctive Products
\n1. The Parties shall endeavour after one year following the entry into force of
\nthis Agreement, that they will consider the recognition of distinctive products.
\n2<\/p>\n
2. If any Party grants in the future to a third party recognition of distinctive
\nproducts, it shall extend this recognition automatically to it on a non discrminatory
\nbasis.<\/p>\n
1
\nFor greater certainty, this does not pre-judge the rights of the Parties under Chapter 15 (Dispute
\nSettlement) and specifically Article 15.6(3) (Establishment of an Arbitral Tribunal).
\n2
\nWith respect to Chile, it will be seeking the recognition as distinctive products of Chile: Pisco
\nChileno (Chilean Pisco), Pajarete, and Vino Asoleado. 18-2
\nArticle 18.6: Disclosure of Information
\nNothing in this Agreement shall be construed to require any Party to furnish
\nor allow access to information the disclosure of which it considers would:
\n(a) be contrary to the public interest as determined by its legislation;
\n(b) be contrary to any of its legislation including but not limited to those
\nprotecting personal privacy or the financial affairs and accounts of
\nindividual customers of financial institutions;
\n(c) impede law enforcement; or
\n(d) which would prejudice legitimate commercial interests of particular
\nenterprises, public or private.
\nArticle 18.7: Confidentiality
\nWhere a Party provides information to another Party in accordance with this
\nAgreement and designates the information as confidential, the other Party shall
\nmaintain the confidentiality of the information. Such information shall be used only
\nfor the purposes specified, and shall not be otherwise disclosed without the specific
\npermission of the Party providing the information, except to the extent that it may
\nbe required to be disclosed in the context of judicial proceedings. 19-1
\nCHAPTER 19
\nGENERAL EXCEPTIONS
\nArticle 19.1: General Exceptions
\n1. For the purposes of Chapters 3 through 8 (Trade in Goods, Rules of Origin,
\nCustoms Procedures, Sanitary and Phytosanitary Measures, Technical Barriers to
\nTrade and Trade Remedies), Article XX of GATT 1994 and its interpretive notes
\nare incorporated into and made part of this Agreement, mutatis mutandis.
\n2. The Parties understand that the measures referred to in Article XX(b) of
\nGATT 1994 include environmental measures necessary to protect human, animal
\nor plant life or health, and that Article XX(g) of GATT 1994 applies to measures
\nrelating to the conservation of living and non-living exhaustible natural resources.
\n3. For greater certainty, the Parties understand that the measures referred to
\nin Article XX(f) of GATT 1994 include measures necessary to protect specific sites
\nof historical or archaeological value, or to support creative arts of national value.
\n1<\/p>\n
4. For the purposes of Chapter 12 (Trade in Services), Article XIV of GATS
\n(including its footnotes) is incorporated into and made part of this Agreement,
\nmutatis mutandis. The Parties understand that the measures referred to in Article
\nXIV(b) of GATS include environmental measures necessary to protect human,
\nanimal or plant life or health.
\n5. For the purposes of Chapter 12 (Trade in Services), subject to the
\nrequirement that such measures are not applied in a manner which would
\nconstitute a means of arbitrary or unjustifiable discrimination between the Parties
\nwhere like conditions prevail, or a disguised restriction on trade in services, nothing
\nin this Agreement shall be construed to prevent the adoption or enforcement by a
\nParty of measures necessary to protect national works or specific sites of historical
\nor archaeological value, or to support creative arts of national value.
\n1<\/p>\n
1
\n\u201cCreative arts\u201d include: the performing arts \u2013 including theatre, dance and music \u2013 visual arts and
\ncraft, literature, film and video, language arts, creative on-line content, indigenous traditional
\npractice and contemporary cultural expression, and digital interactive media and hybrid art work,
\nincluding those that use new technologies to transcend discrete art form divisions. The term
\nencompasses those activities involved in the presentation, execution and interpretation of the arts;
\nand the study and technical development of these art forms and activities. 19-2
\nArticle 19.2: Security Exceptions
\n1. Nothing in this Agreement shall be construed:
\n(a) to require a Party to furnish or allow access to any information the
\ndisclosure of which it determines to be contrary to its essential security
\ninterests; or
\n(b) to prevent a Party from taking any actions which it considers necessary
\nfor the protection of its essential security interests
\n2
\n(i) relating to the traffic in arms, ammunition and implements of war
\nand to such traffic in other goods and materials or relating to the
\nsupply of services as carried on, directly or indirectly, for the
\npurpose of supplying or provisioning a military establishment,
\n(ii) taken in time of war or other emergency in international relations,
\nor
\n(iii) relating to fissionable and fusionable materials or the materials
\nfrom which they are derived; or
\n(c) to prevent a Party from taking any action in pursuance of its obligations
\nunder the United Nations Charter for the maintenance of international
\npeace and security.
\n2. The Commission shall be informed to the fullest extent possible of measures
\ntaken under Subparagraphs 1(b) and (c) and of their termination.
\nArticle 19.3: Measures to Safeguard the Balance of Payments
\n1. Where a Party is in serious balance of payments and external financial
\ndifficulties or threat thereof, it may adopt or maintain restrictive measures with
\nregard to trade in goods and in services including on payments and transfers.
\n2. Restrictions adopted or maintained under Paragraph 1 shall:
\n(a) be consistent with the conditions established in the WTO Agreement
\nand consistent with the Articles of Agreement of the International
\nMonetary Fund;<\/p>\n
2
\nFor greater certainty, nothing in this Agreement shall be construed to prevent a Party from taking
\nany action which it considers necessary for the protection of critical infrastructure from deliberate
\nattempts intended to disable or degrade such infrastructure. 19-3
\n(b) avoid unnecessary damage to the commercial, economic and financial
\ninterests of the other Parties;
\n(c) not exceed those necessary to deal with the circumstances described in
\nParagraph 1;
\n(d) be temporary and be phased out progressively as the situation specified
\nin Paragraph 1 improves; and
\n(e) be applied on a non discriminatory basis.
\n3. In determining the incidence of such restrictions, the Parties may give
\npriority to economic sectors which are more essential to their economic
\ndevelopment. However, such restrictions shall not be adopted or maintained for
\nthe purpose of protecting a particular sector.
\n4. Any restrictions adopted or maintained by a Party under paragraph 1, or any
\nchanges therein, shall be promptly notified to the other Party.
\n5. The Party adopting or maintaining any restrictions under paragraph 1 shall
\npromptly commence consultations with the other Parties in order to review the
\nmeasures adopted or maintained by it.
\nArticle 19.4: Taxation Measures
\n1. For the purposes of this Article:
\ntax convention means a convention for the avoidance of double taxation or other
\ninternational taxation agreement or arrangement; and
\ntaxation measures do not include a \u201ccustoms duty\u201d as defined in Article 2.1
\n(Definitions of General Application).
\n2. Except as provided in this Article, nothing in this Agreement shall apply to
\ntaxation measures.
\n3. This Agreement shall only grant rights or impose obligations with respect to
\ntaxation measures where corresponding rights or obligations are also granted or
\nimposed under Article III of GATT 1994 and, with respect to services, Articles I and
\nXIV (d) of GATS where applicable.
\n4. Nothing in this Agreement shall affect the rights and obligations of the
\nParties under any tax convention in force between the Parties. In the event of any
\ninconsistency relating to a taxation measure between this Agreement and such tax
\nconvention, the latter shall prevail to the extent of the inconsistency. In the case of 19-4
\na tax convention between the Parties, the competent authorities under that
\nconvention shall have sole responsibility for determining whether any inconsistency
\nexists between this Agreement and that convention.
\nArticle 19.5: Treaty of Waitangi
\n1. Provided that such measures are not used as a means of arbitrary or
\nunjustified discrimination against persons of the other Parties or as a disguised
\nrestriction on trade in goods and services, nothing in this Agreement shall preclude
\nthe adoption by New Zealand of measures it deems necessary to accord more
\nfavourable treatment to Maori in respect of matters covered by this Agreement
\nincluding in fulfilment of its obligations under the Treaty of Waitangi.
\n2. The Parties agree that the interpretation of the Treaty of Waitangi, including
\nas to the nature of the rights and obligations arising under it, shall not be subject to
\nthe dispute settlement provisions of this Agreement. Chapter 15 (Dispute
\nSettlement) shall otherwise apply to this Article. An arbitral tribunal established
\nunder Article 15.6 (Establishment of an Arbitral Tribunal) may be requested by
\nBrunei Darussalam, Chile or Singapore to determine only whether any measure
\n(referred to in Paragraph 1) is inconsistent with their rights under this Agreement.20-1
\nCHAPTER 20
\nFINAL PROVISIONS
\nArticle 20.1: Investment Negotiations<\/p>\n
Unless otherwise agreed, no later than 2 years after entry into force of this
\nAgreement the Parties shall commence negotiations with a view to including a
\nchapter on investment in this Agreement on a mutually advantageous basis.
\nArticle 20.2: Financial Services Negotiations
\nUnless otherwise agreed, no later than 2 years after the entry into force of
\nthis Agreement the Parties shall commence negotiations with a view to including a
\nself-contained chapter on financial services in this Agreement on a mutually
\nadvantageous basis.
\nArticle 20.3: Signature
\n1. This Agreement shall be open for signature by Brunei Darussalam, Chile,
\nNew Zealand and Singapore and shall remain open for signature for a period of
\n6 months from 15 June 2005.
\n2. This Agreement shall be subject to ratification, acceptance or approval by
\nsignatories.
\nArticle 20.4: Entry into Force
\n1. This Agreement shall enter into force on 1 January 2006 for those
\nsignatories which have deposited an Instrument of Ratification, Acceptance or
\nApproval provided that at least two signatories have deposited such instrument by
\nthat date.
\n2. In the event that only one signatory has deposited an Instrument of
\nRatification, Acceptance or Approval before 1 January 2006, this Agreement shall
\nenter into force 30 days after the deposit of the second such instrument.
\n3. For signatories that deposit an Instrument of Ratification, Acceptance or
\nApproval after 1 January 2006, the Agreement shall enter into force 30 days
\nfollowing the date of deposit of such instrument. 20-2
\nArticle 20.5: Brunei Darussalam
\n1. Subject to Paragraphs 2 to 6, this Agreement shall be provisionally applied
\nin respect of Brunei Darussalam from 1 January 2006, or 30 days after the deposit
\nof an instrument accepting provisional application of this Agreement, whichever is
\nthe later.<\/p>\n
2. The provisional application referred to in Paragraph 1 shall not apply to
\nChapter 11 (Government Procurement) and Chapter 12 (Trade in Services).<\/p>\n
3. The obligations of Chapter 9 (Competition Policy) shall only be applicable to
\nBrunei Darussalam if it develops a competition law and establishes a competition
\nauthority. Notwithstanding the above, Brunei Darussalam shall adhere to the
\nAPEC Principles to Enhance Competition and Regulatory Reform.
\n4. The Commission shall consider whether to accept the Annexes for Brunei
\nDarussalam under Chapter 11 (Government Procurement) and Chapter 12 (Trade
\nin Services), no later than two years after the entry into force of this Agreement in
\naccordance with Article 20.4(1) or (2), unless the Commission otherwise agrees to
\na later date.
\n5. Upon a decision of the Commission accepting the Annexes referred to in
\nParagraph 4, Brunei Darussalam shall deposit an Instrument of Ratification,
\nAcceptance or Approval within two months of the decision by the Commission. The
\nAgreement shall enter into force for Brunei Darussalam 30 days after the deposit of
\nsuch instrument
\n6. Unless the Commission decides otherwise, if the conditions in Paragraph 4
\nor 5 are not met, the Agreement shall no longer be provisionally applied to Brunei
\nDarussalam.
\nArticle 20.6: Accession
\n1. This Agreement is open to accession on terms to be agreed among the
\nParties, by any APEC Economy or other State. The terms of such accession shall
\ntake into account the circumstances of that APEC Economy or other State, in
\nparticular with respect to timetables for liberalisation.
\n2. The agreement on the terms of accession shall enter into force 30 days
\nfollowing the date of deposit with the depositary of an Instrument of Accession
\nwhich indicates acceptance or approval of such terms. 20-3
\nArticle 20.7: Amendments
\n1. The Parties may agree on any modification of or addition to this Agreement.
\n2. When so agreed, and approved in accordance with the applicable legal
\nprocedures of each Party, a modification or addition shall constitute an integral part
\nof this Agreement.
\n3. If any provision of the WTO Agreement that the Parties have incorporated
\ninto this Agreement is amended, the Parties shall consult on whether to amend this
\nAgreement.
\nArticle 20.8: Withdrawal
\nAny Party may withdraw from this Agreement. Such withdrawal shall take
\neffect upon the expiration of six months from the date on which written notice of
\nwithdrawal is received by the Depositary. If a Party withdraws, the Agreement shall
\nremain in force for the remaining Parties.
\nArticle 20.9: Depositary State and Functions
\n1. The original of this Agreement shall be deposited with the Government of
\nNew Zealand which is hereby designated as the Depositary of this Agreement.
\n2. The Depositary shall transmit certified copies of this Agreement and any
\namendments to this Agreement to all signatory States, acceding APEC Economies
\nand other acceding States.
\n3. The Depositary shall notify all signatory States, acceding APEC Economies
\nand other acceding States of:
\n(a) each signature, ratification, acceptance, approval or accession to this
\nAgreement in accordance with Articles 20.3, 20.4, and 20.6;
\n(b) the instrument accepting provisional application in accordance with
\nArticle 20.5;
\n(c) the respective dates on which the Agreement enters into force in
\naccordance with Article 20.4, 20.5 and 20.6; and
\n(d) any notification of withdrawal received in accordance with Article
\n20.8. 20-4
\n4. Following entry into force of this Agreement, the Depositary shall transmit a
\ncertified true copy of this Agreement to the Secretary-General of the United
\nNations for registration and publication in accordance with Article 102 of the
\nCharter of the United Nations. The Depositary shall likewise transmit certified true
\ncopies of any amendments which enter into force.
\nArticle 20.10: Authentic Texts
\nThe English and Spanish texts of this Agreement are equally authentic. In
\nthe event of divergence, the English text shall prevail.
\nIN WITNESS WHEREOF, the undersigned, being duly authorised by their
\nrespective Governments, have signed this Agreement.
\nDONE at, \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026 on \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.. 2005.
\nFor Brunei Darussalam For the Republic of Chile
\nFor New Zealand For the Republic of Singapore<\/p>\n","protected":false},"excerpt":{"rendered":"
TPPA – TRANS-PACIFIC\u00a0STRATEGIC ECONOMIC PARTNERSHIP AGREEMENT – FULL TRANS-PACIFIC STRATEGIC ECONOMIC PARTNERSHIP AGREEMENT 1 PREAMBLE The Governments of Brunei Darussalam, the Republic of Chile, New Zealand and the Republic of Singapore, (hereinafter referred to collectively as the \u201cParties\u201d or individually as a \u201cParty\u201d, unless the context otherwise requires), resolve to: STRENGTHEN the special links of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":607,"menu_order":0,"comment_status":"open","ping_status":"open","template":"","meta":{"footnotes":""},"class_list":["post-1059","page","type-page","status-publish","hentry"],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/P29Kla-h5","_links":{"self":[{"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/pages\/1059","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/comments?post=1059"}],"version-history":[{"count":6,"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/pages\/1059\/revisions"}],"predecessor-version":[{"id":1084,"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/pages\/1059\/revisions\/1084"}],"up":[{"embeddable":true,"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/pages\/607"}],"wp:attachment":[{"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/media?parent=1059"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}