Canada - Ukraine Free Trade Agreement
Preamble
Canada (“Canada”) and Ukraine (“Ukraine”), hereinafter referred to as
“the Parties”, resolved to:
Strengthen the special bonds of friendship and cooperation between their peoples;
Contribute to the harmonious development and expansion of world and regional trade and to provide a catalyst
to broader international cooperation;
Build on their respective rights and obligations under the wto agreement and other multilateral and bilateral
instruments of cooperation;
Create an expanded and secure market for the goods and services produced in their territories, as well as
promote new employment opportunities and improved working conditions and living standards in their respective
territories;
Reduce distortions to trade;
Establish clear, transparent and mutually advantageous rules to govern their trade;
Ensure a predictable commercial framework for business planning and investment;
Enhance the competitiveness of their firms in global markets;
Undertake each of the preceding in a manner that is consistent with environmental protection
and conservation;
Enhance and enforce environmental laws and regulations, and strengthen cooperation on environmental
matters;
Protect, enhance and enforce basic workers' rights, and strengthen cooperation on labour matters and
build on their respective international commitments on labour matters;
Promote sustainable development;
Encourage enterprises operating within their territory or subject to their jurisdiction to respect
internationally recognized corporate social responsibility standards and principles and pursue best practices;
Promote broad-based economic development in order to reduce poverty;
Preserve their flexibility to safeguard the public welfare;
and
Recalling the Agreement between the Government of Canada and the Government of Ukraine for the
promotion and protection of investments, done at Ottawa on 24 October 1994;
Recognizing that the promotion and the protection of investments of investors of a party in the
territory of the other party will be conducive to the stimulation of mutually beneficial business activity;
Recognizing that states must maintain the ability to preserve, develop and implement their cultural
policies for the purpose of strengthening cultural diversity, given the essential role that cultural goods
and services play in the identity and diversity of societies and the lives of natural persons; and
Affirming their commitment to respect the values and principles of democracy and to promote and protect
human rights and fundamental freedoms as identified in the Universal Declaration of Human Rights.
Have agreed as follows:
Chapter 1: General provisions and definitions
Section A - General provisions
Article 1.1: Establishment of the Free Trade Area
The Parties to this Agreement, consistent with Article XXIV of the GATT 1994,
hereby establish a free trade area.
Article 1.2: Relation to Other Agreements
1. The Parties affirm their existing rights and obligations with respect to
each other under the WTO Agreement and other agreements to which the Parties are party.
2. In the event of any inconsistency between this Agreement and the agreements referred to in paragraph 1,
this Agreement prevails, except as otherwise provided in this Agreement
3. The WTO Agreement exclusively governs the rights and obligations of the Parties regarding subsidies and the
application of anti-dumping and countervailing measures, including the settlement of any disputes about those
matters.
Article 1.3: Relation to Environmental and Conservation
Agreements
In the event of an inconsistency between an obligation in this Agreement and
an obligation of a Party under an agreement listed in Annex 1-A (Multilateral Environment Agreements), the
obligation in the agreement under Annex 1-A prevails provided that the measure taken is necessary to comply
with that obligation, and is not applied in a manner that would constitute, where the same conditions prevail,
arbitrary or unjustifiable discrimination or a disguised restriction on international trade.
Article 1.4: Extent of Obligations
Each Party is fully responsible for the observance of all provisions of this
Agreement and shall take reasonable measures that may be available to it to ensure observance of the provisions
of this Agreement, except as otherwise provided in this Agreement, by the sub-national governments and authorities
within its territory and, in addition, in the case of Ukraine, local self-government bodies of oblasts.
Article 1.5: Reference to Other Agreements
When this Agreement refers to or incorporates by reference other agreements
or legal instruments in whole or in part, those references include related footnotes, interpretative notes and
explanatory notes. Unless the reference affirms existing rights, those references also include any successor
agreements to which the Parties are party or amendments binding on the Parties.
Section B - General Definitions
Article 1.6: Definitions of General Application
1. For the purposes of this Agreement, unless otherwise specified:
citizen means a natural person who is a citizen of a Party under its legislation;
Joint Commission means the Joint Commission established under Article 16.1 (Joint Commission);
Coordinators means the Agreement Coordinators established under Article 16.2 (Agreement Coordinators);
customs duty includes a customs or import duty and a charge of any kind imposed on or in connection
with the importation of a good, including any form of surtax or surcharge in connection with that importation,
but does not include:
(a) a charge equivalent to an internal tax imposed consistently with Article III:2 of the GATT 1994,
in respect of like, directly competitive or substitutable goods of the Party, or in respect of goods from which
the imported good has been manufactured or produced in whole or in part;
(b) an anti-dumping or countervailing duty that is applied pursuant to a Party's law;
(c) a fee or other charge imposed consistently with Article VIII of the GATT 1994; or
(d) a premium offered or collected on an imported good arising out of a tendering system in respect of
the administration of quantitative import restrictions, tariff rate quotas or tariff preference levels;
Customs Valuation Agreement means the Agreement on Implementation of
Article VII of the General Agreement on Tariffs and Trade 1994, contained in Annex 1A to the WTO Agreement;
days means calendar days;
DSU means the Understanding on Rules and Procedures Governing the Settlement of Disputes, contained
in Annex 2 to the WTO Agreement;
enterprise means an entity constituted or organized under applicable law, whether or not for profit, and
of any form of ownership, whether privately owned or governmentally owned, including a corporation, trust, partnership,
sole proprietorship, joint venture or other association;
existing means in effect on the date of entry into force of this Agreement;
GATS means the General Agreement on Trade in Services, contained in Annex 1B to the WTO Agreement;
GATT 1994 means the General Agreement on Tariffs and Trade 1994, contained in Annex 1A to the WTO
Agreement;
goods of a Party means domestic products as these are understood in the GATT 1994 or such goods as the Parties
may decide, and includes originating goods of that Party;
Harmonized System (HS) means the Harmonized Commodity Description and Coding System, including its
General Rules of Interpretation, Section Notes, Chapter Notes and subheading notes;
heading means a four-digit number, or the first four digits of a number, used in the nomenclature of the
Harmonized System;
measure includes a law, regulation, procedure, requirement or practice;
national means a natural person who is a citizen or is a permanent resident of a Party;
originating means qualifying as originating under the rules of origin set out in Chapter 3 (Rules of Origin);
permanent resident means a natural person who is a permanent resident of a Party under its applicable
legislation;
person means a natural person or an enterprise;
person of a Party means a national, or an enterprise of a Party;
sanitary or phytosanitary measure means any measure referred to in Annex A, paragraph 1 of the SPS Agreement;
SPS Agreement means the Agreement on the Application of Sanitary and Phytosanitary Measures, contained
in Annex 1A to the WTO Agreement;
state enterprise means an enterprise that is owned or controlled through ownership interests, by a Party;
subheading means a six-digit number, or the first six digits of a number, used in the nomenclature of the
Harmonized System;
tariff classification means the classification of a good or material under a chapter, heading or subheading of
the Harmonized System;
tariff elimination schedule means Annex 2-B (National Treatment and Market Access-Tariff Elimination);
territory means:
(i) the land territory, air space, internal waters and territorial sea of the Party;
(ii) the exclusive economic zone of the Party, as determined by its domestic law, consistent with Part V of UNCLOS;
and
(iii) the continental shelf of the Party, as determined by its law, consistent with Part VI of UNCLOS;
UNCLOS means the United Nations Convention on the Law of the Sea done
at Montego Bay on 10 December 1982;
WTO means the World Trade Organization;
WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done on April
15, 1994.
2. For the purposes of this Agreement, a word in the singular includes that word in the plural, except where
otherwise indicated.
Article 1.7: Country-specific Definitions
For the purposes of this Agreement, unless otherwise specified:
national government means:
(a) with respect to Canada, the Government of Canada; and
(b) with respect to Ukraine, the Government of Ukraine.
sub-national government means:
(a) with respect of Canada, provincial, territorial, or local governments; and
(b) with respect to Ukraine, local executive power bodies of oblasts, the autonomous Republic of Crimea and
cities with special status.
Annex 1-A: Multilateral Environmental Agreements
List of Multilateral Environmental Agreements both Parties are party to for
the purposes of Article 1.3:
(a) The Convention on International Trade in Endangered Species of Wild Fauna and Flora, done at
Washington on 3 March 1973.
(b) The Montreal Protocol on Substances that Deplete the Ozone Layer, done at Montreal on
16 September 1987.
(c) The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their
Disposal, done at Basel on 22 March 1989.
(d) The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals
and Pesticides in International Trade, done at Rotterdam on 10 September 1998.
(e) The Stockholm Convention on Persistent Organic Pollutants, done at Stockholm on 22 May 2001.
Chapter 2: National treatment and market access
Article 2.1: Definitions
For the purposes of this Chapter:
Agreement on Agriculture means the Agreement on Agriculture, contained in Annex-1A of the WTO
Agreement;
agricultural good means a product listed in Annex 1 of the Agreement on Agriculture;
export subsidy means an export subsidy as defined in Article 1(e) of the Agreement on Agriculture.
Article 2.2: Scope and Coverage
This Chapter applies to trade in goods of a Party except as otherwise
provided in this Agreement.
Section A – National Treatment
Article 2.3 National Treatment
1. Each Party shall accord national treatment to the goods of the other
Party in accordance with Article III of the GATT 1994, and to this end Article III of the GATT 1994 is
incorporated into and made part of this Agreement.
2. The treatment to be accorded by a Party under paragraph 1 means, with respect to a sub-national government,
treatment no less favourable than the most favourable treatment accorded by that sub-national government to a like,
directly competitive or substitutable good, as the case may be, of the Party of which it forms a part.
3. This Article does not apply to a measure set out in Annex 2-A (Exceptions to Articles 2.3 and 2.5).
Section B – Tariffs
Article 2.4: Tariff Elimination on Imports
1. Except as otherwise provided in this Agreement, a Party may not increase
an existing customs duty, or adopt a customs duty, on an originating good.
2. Except as otherwise provided in this Agreement, each Party shall progressively eliminate its customs duties on
originating goods in accordance with its Schedule to Annex 2-B (Tariff Elimination).
3. During the tariff elimination process, each Party shall apply to originating goods traded between the Parties
the lesser of the customs duties resulting from a comparison between the rate established in accordance with the
Schedule to Annex 2-B (Tariff Elimination) and the applied most-favoured-nation (MFN) rate.
4. At the request of a Party, the Parties shall discuss accelerating the elimination of customs duties set out
in their Schedules to Annex 2-B or incorporating into a Party’s Schedule a good that is not subject to tariff
elimination. An agreement between the Parties to accelerate the elimination of a customs duty on a good or to
include a good in a Party’s Schedule to Annex 2-B shall supersede a duty rate or staging category determined
pursuant to a Schedule for that good when approved by each Party in accordance with its applicable internal
procedures.
5. For greater certainty, a Party may:
(a) modify a tariff outside this Agreement on a good for which no tariff preference is claimed under
this Agreement;
(b) increase a customs duty to the level established in its Schedule to Annex 2-B following a
unilateral reduction;
(c) maintain or increase a customs duty as authorized by this Agreement, the Dispute Settlement Body
of the WTO or any agreement under the WTO Agreement; or
(d) create a new tariff line more specific than the subheading level, provided that the Party does not
impose customs duties on a good classified under that new tariff line greater than the rate of customs duty
applicable to the good under the Party’s Schedule to Annex 2-B before the new tariff line was created.
Section C – Non-Tariff Measures
Article 2.5: Import and Export Restrictions
1. Except as otherwise provided in this Agreement, a Party may not adopt or
maintain a prohibition or restriction on the importation of a good of the other Party or on the exportation or
sale for export of a good destined for the territory of the other Party, except in accordance with Article XI
of the GATT 1994, and to this end Article XI of the GATT 1994 is incorporated into and made a part of this
Agreement.
2. The rights and obligations of the GATT 1994 incorporated by paragraph 1 prohibit:
(a) an export price requirement in a circumstance in which another form of restriction is prohibited; and
(b) an import price requirement, except as permitted in enforcement of countervailing and antidumping
orders and undertakings.
3. If a Party adopts or maintains a prohibition or restriction on the importation from or exportation to a
non-Party of a good, this Agreement does not prevent the Party from:
(a) limiting or prohibiting the importation from the territory of the other Party a good of that non-Party;
or
(b) requiring as a condition of export of a good of the Party to the territory of the other Party that
the good not be re-exported to the non-Party, directly or indirectly, without being consumed in the territory of
the other Party.
4. If a Party adopts or maintains a prohibition or restriction on the importation of a good from a non-Party,
at the request of the other Party, the Parties shall discuss with a view to avoiding undue interference with or
distortion of pricing, marketing or distribution arrangements in the other Party.
5. This Article does not apply to a measure set out in Annex 2-A (Exceptions to Articles 2.3 and 2.5).
Article 2.6: Customs User Fees and Similar Charges
1. A Party shall not adopt or maintain a fee or charge imposed on or in connection
with importation of a good of the other Party, except in accordance with Article VIII of the GATT 1994, and
to this end Article VIII of the GATT 1994 is incorporated into and made part of this Agreement.
2. Paragraph 1 does not prevent a Party from imposing a customs duty or a charge set out in paragraphs (a), (b),
or (d) of the definition of “customs duty”.
Article 2.7: Balance-of Payments Exception
1. The Parties shall endeavour to avoid the imposition of restrictive measures
for balance-of-payments purposes.
2. A Party in serious balance-of-payments difficulties, or under imminent threat thereof, may, in accordance with
the conditions established under the GATT 1994, the Understanding on the Balance-of-Payments Provisions of the
GATT 1994 and the Declaration on Trade Measures Taken for Balance of Payments Purposes, adopt a trade restrictive
measure, which shall be of limited duration and non-discriminatory and shall not go beyond what is necessary to
remedy the balance-of-payments situation.
3. Before adopting a measure pursuant to paragraph 2, the Party shall notify the other Party.
4. The Party adopting the measure shall immediately consult the other Party and shall make every effort to hold
such consultations before adopting the measure.
5. A measure under this Article shall not impair the relative benefits accorded to the other Party under this Agreement.
6. For greater certainty, the balance-of-payments exception contained in this Article applies only to
balance-of-payments measures imposed on trade in goods.
Article 2.8: Customs Valuation
The Customs Valuation Agreement governs the customs valuation rules applied by the
Parties to their reciprocal trade. A Party shall not make use, in its reciprocal trade, of the options and reservations
permitted under Article 20 and paragraphs 2, 3 and 4 of Annex III of the Customs Valuation Agreement.
Article 2.9: Customs Duties on Exports
For greater certainty, each Party may apply export duties, in accordance with their
rights and obligations under the WTO.
Article 2.10: Agriculture Export Subsides
A Party shall not adopt or maintain an export subsidy on an agricultural good that is
exported, or incorporated in a product that is exported, to the territory of the other Party after the other Party has,
immediately or after the transitional period, fully eliminated the tariff, on that agricultural good in accordance with
Annex 2-B.
Article 2.11: Special Safeguard on Agricultural Goods
A Party may not apply duties under Article V of the WTO Agreement on Agriculture on
goods of the other Party that are subject to tariff elimination under Annex 2-B, including its tariff schedule.
Article 2.12: Distilled Spirits
A Party may not adopt or maintain a measure requiring that distilled spirits imported
from the territory of the other Party for bottling be blended with distilled spirits of the Party.
Section D – Institutional Provisions
Article 2.13: Committee on Trade in Goods and Rules of Origin
1. The Parties hereby establish a Committee on Trade in Goods and Rules of Origin,
composed of government representatives of each Party.
2. The Committee shall meet at the request of a Party or the Joint Commission to consider any matter arising under this
Chapter, Chapter 3 (Rules of Origin and Origin Procedures), Chapter 4 (Trade Facilitation) or Chapter 5 (Emergency
Action) but not less than once every two years from the date of entry into force of this Agreement, unless otherwise
decided by the Parties.
3. The Committee’s functions shall include:
(a) promoting trade in goods between the Parties, including through discussions on accelerating tariff elimination
under this Agreement and other issues as appropriate;
(b) promptly addressing barriers to trade in goods between the Parties, especially those related to the application
of non-tariff measures, and, if appropriate, referring those matters to the Joint Commission for its consideration;
(c) recommending to the Joint Commission a modification of or addition to this Chapter, Chapter 3 (Rules of Origin
and Origin Procedures), Chapter 4 (Trade Facilitation), Chapter 5 (Emergency Action), or any other provision
of this Agreement related to the Harmonized System; and
(d) considering any other matter referred to it by a Party relating to the implementation and administration by the
Parties of this Chapter, Chapter 3 (Rules of Origin and Origin Procedures), Chapter 4 (Trade Facilitation) or Chapter 5
(Emergency Action).
4. The Parties hereby establish a Sub-Committee on Agriculture that shall:
(a) except as otherwise provided in this Chapter, meet within 60 days of a request by a Party;
(b) provide a forum for the Parties to discuss issues resulting from the implementation of this Agreement
for agricultural goods;
(c) refer to the Committee any matter under sub-paragraph (b) on which it has been unable to reach an
understanding;
and
(d) report to the Committee for its consideration an understanding under this paragraph.
5. At the request of a Party, the Parties shall convene a meeting of their officials responsible for customs,
immigration, inspection of food and agricultural products, border inspection facilities, or regulation of
transportation, as appropriate, for the purpose of addressing issues related to movement of goods through the
Parties’ ports of entry.
Annex 2-A: Exceptions to Articles 2.3 and 2.5
Canadian Measures
Articles 2.3 and 2.5 do not apply to:
(a) a measure, including that measure’s continuation, prompt renewal or amendment, in respect of the
following:
(i)the export of logs of all species;
(ii)the export of unprocessed fish pursuant to applicable provincial legislation;
(iii)the importation of a goods of the prohibited provisions of tariff items 9897.00.00, 9898.00.00 and
9899.00.00 referred to in the Schedule of the Customs Tariff;
(iv)Canadian excise duties on absolute alcohol used in manufacturing under the provisions of the Excise Act,
2001, S.C. 2002, c. 22, as amended;
(v)the use of ships in the coasting trade of Canada;
(vi)the internal sale and distribution of wine and distilled spirits; or
(b) an action by Canada authorized by the Dispute Settlement Body of the WTO in a dispute between the Parties
under the WTO Agreement.
Annex 2-B: Tariff Elimination
1. As provided in each Party’s Schedule attached to this Annex, the following
staging categories apply to the elimination or reduction of customs duties by each Party pursuant to Article 2.4(2):
(a) duties on originating goods shall be eliminated entirely and these goods shall be duty-free on the date this
Agreement enters into force and each subsequent year, as follows:
(i) for Ukraine, for goods provided for in the items in staging category 0 in the Schedule of Ukraine, and
(ii) for Canada, for goods of Chapters 1 through 97 of the Harmonised System that provide for an MFN rate of
customs duty and that are not listed in the Schedule of Canada;
(b) duties on originating goods provided for in the items in staging category 1 in a Party’s Schedule shall be
eliminated in two equal stages beginning on the date this Agreement enters into force, and these goods shall
be duty-free, effective January 1 of year two. For greater certainty, the rate of customs duty as a fraction of
the base rate indicated in each Party’s Schedule shall be as follows:
(i) year one: one-half of the base rate
(ii) year two and each subsequent year: duty-free
(c) duties on originating goods provided for in the items in staging category 3 in a Party’s Schedule
shall be eliminated in four equal stages beginning on the date this Agreement enters into force, and these goods
shall be duty-free, effective January 1 of year four. For greater certainty, the rate of customs duty as a fraction
of the base rate indicated in each Party’s Schedule shall be as follows:
(i) year one: three-quarters of the base rate
(ii) year two: one-half of the base rate
(iii) year three: one-quarter of the base rate
(iv) year four and each subsequent year: duty-free
(d) duties on originating goods provided for in the items in staging category 5 in a Party’s Schedule
shall be eliminated in six equal stages beginning on the date this Agreement enters into force, and these goods
shall be duty-free, effective January 1 of year six. For greater certainty, the rate of customs duty as a fraction
of the base rate indicated in each Party’s Schedule shall be as follows:
(i) year one: five-sixths of the base rate
(ii) year two: two-thirds of the base rate
(iii) year three: one-half of the base rate
(iv) year four: one-third of the base rate
(v) year five: one-sixth of the base rate
(vi) year six and each subsequent year: duty-free
(e) duties on originating goods provided for in the items in staging category 7 in a Party’s Schedule shall
be eliminated in eight equal stages beginning on the date this Agreement enters into force, and these goods
shall be duty-free, effective January 1 of year eight. For greater certainty, the rate of customs duty as a
fraction of the base rate indicated in each Party’s Schedule shall be as follows:
(i) year one: seven-eighths of the base rate
(ii) year two: three-quarters of the base rate
(iii) year three: five-eighths of the base rate
(iv) year four: one-half of the base rate
(v) year five: three-eighths of the base rate
(vi) year six: one-quarter of the base rate
(vii) year seven: one-eighth of the base rate
(viii) year eight and each subsequent year: duty-free
(f) duties on originating goods provided for in the items in staging category 5A in a Party’s
Schedule shall be reduced by one-fifth (twenty per cent) of the base-rate in six equal stages beginning
on the date this Agreement enters into force, and the rate of customs duty applicable to these goods shall
be four-fifths of the base rate, effective January 1 of year six. For greater certainty, the rate of
customs duty as a fraction of the base rate indicated in each Party’s Schedule shall be as follows:
(i) year one: twenty-nine-thirtieths of the base rate
(ii) year two: fourteen-fifteenths of the base rate
(iii) year three: nine-tenths of the base rate
(iv) year four: thirteen-fifteenths of the base rate
(v) year five: five-sixths of the base rate
(vi) year six and each subsequent year: four-fifths of the base rate
(g) duties on originating goods provided for in the items in staging category 5B in a Party’s Schedule
shall be reduced by three-tenths (thirty per cent) of the base-rate in six equal stages beginning on the date
this Agreement enters into force, and the rate of customs duty applicable to these goods shall be seven-tenths
of the base rate, effective January 1 of year six. For greater certainty, the rate of customs duty as a fraction
of the base rate indicated in each Party’s Schedule shall be as follows:
(i) year one: nineteen-twentieths of the base rate
(ii) year two: nine-tenths of the base rate
(iii) year three: seventeen-twentieths of the base rate
(iv) year four: four-fifths of the base rate
(v) year five: three-quarters of the base rate
(vi) year six and each subsequent year: seven-tenths of the base rate
(h) duties on originating goods provided for in the items in staging category 5C in a Party’s Schedule
shall be reduced by one-half (fifty per cent) of the base-rate in six equal stages beginning on the date this
Agreement enters into force, and the rate of customs duty applicable to these goods shall be one-half of the
base rate, effective January 1 of year six. For greater certainty, the rate of customs duty as a fraction of
the base rate indicated in each Party’s Schedule shall be as follows:
(i) year one: eleven-twelfths of the base rate
(ii) year two: five-sixths of the base rate
(iii) year three: three-quarters of the base rate
(iv) year four: two-thirds of the base rate
(v) year five: seven-twelfths of the base rate
(vi) year six and each subsequent year: one-half of the base rate
(i) duties on originating goods provided for in the items in staging category 7A in a Party’s Schedule
shall be reduced by one-fifth (twenty per cent) of the base-rate in eight equal stages beginning on the date
this Agreement enters into force, and the rate of customs duty applicable to these goods shall be four-fifths
of the base rate, effective January 1 of year eight. For greater certainty, the rate of customs duty as a
fraction of the base rate indicated in each Party’s Schedule shall be as follows:
(i) year one: thirty nine-fortieths of the base rate
(ii) year two: nineteen-twentieths of the base rate
(iii) year three: thirty seven-fortieths of the base rate
(iv) year four: nine-tenths of the base rate
(v) year five: seven-eighths of the base rate
(vi) year six: seventeen-twentieths of the base rate
(vii) year seven: thirty three-fortieths of the base rate
(viii) year eight and each subsequent year: four-fifths of the base rate
(j) duties on originating goods provided for in the items in staging category 7B in a Party’s Schedule
shall be reduced by one-half (fifty per cent) of the base-rate in eight equal stages beginning on the date this
Agreement enters into force, and the rate of customs duty applicable to these goods shall be one-half of the
base rate, effective January 1 of year eight. For greater certainty, the rate of customs duty as a fraction
of the base rate indicated in each Party’s Schedule shall be as follows:
(i) year one: fifteen-sixteenths of the base rate
(ii) year two: seven-eighths of the base rate
(iii) year three: thirteen-sixteenths of the base rate
(iv) year four: three-quarters of the base rate
(v) year five: eleven-sixteenths of the base rate
(vi) year six: five-eighths of the base rate
(vii) year seven: nine-sixteenths of the base rate
(viii) year eight and each subsequent year: one-half of the base rate
(k) goods provided for in the items in staging category E in a Party’s Schedule are excluded from
obligations regarding customs duties.
2. Tariff rate quota for pork:
(a) Originating goods in the following aggregate quantities and provided for in items listed with the notation
“TRQ Pork” in the Schedule of Ukraine shall be duty-free in the years specified below:
Year |
Annual Aggregate Quantity (Metric Tonnes, net weight) |
1 |
10,000 MT |
2 |
11,429 MT |
3 |
12,857 MT |
4 |
14,286 MT |
5 |
15,714 MT |
6 |
17,143 MT |
7 |
18,571 MT |
8 and each subsequent year |
20,000 MT |
(b) Duties on originating goods entered in aggregate quantities in excess of the aggregate quantities in subparagraph
(a) shall be subject to a rate of customs duty no higher than the base rate of duty specified for that item in the
Schedule of Ukraine.
(c) Ukraine shall administer this tariff rate quota pursuant to paragraph 3.
(d) Following entry into force of this Agreement, should Ukraine accord to another country more favourable treatment
on the tariff items listed in subparagraph (e), at the request of a Party, the Parties shall hold consultations to
discuss providing to Canada the treatment accorded to those goods of the other country.
(e) Subparagraphs (a), (b), (c) and (d) shall apply to the following items:
0203.21.10.00, 0203.21.90.00, 0203.22.11.00, 0203.22.19.00, 0203.22.90.00, 0203.29.11.00, 0203.29.13.00, 0203.29.15.00,
0203.29.55.00, 0203.29.59.00, 0203.29.90.00, 0206.41.00.00, 0206.49.00.00 0209.10.11.00.
3. Administration and implementation of the tariff rate quota:
(a) Ukraine shall implement and administer its TRQ established under this Annex in accordance with this Agreement,
Articles I and XIII of the GATT 1994, and the WTO Agreement on Import Licensing Procedures.
(b) Ukraine shall ensure that:
(i) its procedures for administering its TRQ are transparent, made available to the public, administered in a
timely manner, non-discriminatory, responsive to market conditions, and no more administratively burdensome
than necessary;
(ii) any person of a Party that fulfills Ukraine’s legal and administrative requirements shall be eligible to
utilize Ukraine’s TRQ;
(iii) the TRQ is administered exclusively by its national government, and that this administration is not
delegated to another person; and,
(iv) every effort is made to administer its TRQ in a manner that facilitates trade and allows importers to
fully utilize it;
(c) In year one, the applicable annual quantities shall be made available starting on the date this Agreement
enters into force until December 31 of the year this Agreement enters into force. From year two and in each
subsequent year, the applicable annual quantities shall be made available from January 1 until December 31 of
each calendar year.
(d) All TRQ quantities shall enter Ukraine on a first-come, first-served basis.
(e) During the course of each year, the administering authority of Ukraine shall publish, in a timely and
ongoing fashion on its designated publicly available internet site, administration procedures, utilisation
rates, and remaining available quantities for the TRQ established under this Agreement.
(f) When the actual annual quantities imported under the TRQ reach the annual aggregate quantities of a
tariff rate quota in a given year, Ukraine shall publish a notice to this effect on its designated publicly
available website within 10 days.
(g) Canada shall notify Ukraine if any Canadian-issued documentation requirements are established for
products exported from Canada under a tariff rate quota pursuant to this Agreement.
(h) If Ukraine receives notification as pursuant to subparagraph (g), Ukraine shall allow only those
products accompanied by that documentation to enter under the applicable TRQ.
(i) Upon entry into force of this Agreement, each Party shall designate a contact point to facilitate
communication on TRQ-related matters and provide the contact point information to the other Party.
(j) Ukraine shall not condition application for or use of an in-quota quantity under a TRQ on the
re-export of an agricultural good or any specified end use.
(k)Ukraine shall not count non-commercial shipments toward the in-quota aggregate quantity under a
TRQ.
(l) Upon the written request of a Party, the Parties shall, within 30 days, convene a meeting of
the Sub-Committee on Agriculture to discuss the administration of a TRQ established under this Agreement
in order to arrive at a mutually satisfactory resolution.
4. For the purposes of this Annex and each Party’s Schedule:
(a) the tariff reduction for year one shall take effect on the date of entry into force of this Agreement
as provided for in Article 19.5 (Entry into Force). Beginning in year two, each annual stage of tariff
reduction shall take effect on January 1 of each year;
(b) year one means the period of time beginning on the date of entry into force of this Agreement
and ending on December 31 of the same calendar year as the date of entry into force;
(c) year two means the 12-month period beginning January 1 of the calendar year immediately following
the date this Agreement enters into force and ending on December 31 of that same calendar year;
(d) year three means the 12-month period beginning on the second January 1 following the
date of entry into force of this Agreement and ending on December 31 of that same calendar year;
(e) year four means the 12-month period beginning on the third January 1 following the
date of entry into force of this Agreement and ending on December 31 of that same calendar year;
(f) year five means the 12-month period beginning on the fourth January 1 following the
date of entry into force of this Agreement and ending on December 31 of that same calendar year;
(g) year six means the 12-month period beginning on the fifth January 1 following the
date of entry into force of this Agreement and ending on December 31 of that same calendar year;
(h) year seven means the 12-month period beginning on the sixth January 1 following
the date of entry into force of this Agreement and ending on December 31 of that same calendar year;
and
(i) year eight means the 12-month period beginning on the seventh January 1 following
the date of entry into force of this Agreement and ending on December 31 of that same calendar year.
5. For Canada, the base rate for determining the interim staged rate of customs duty for an item shall
be the MFN rate of customs duty applied on January 1, 2010. For Ukraine, the base rate for determining
the interim staged rate of customs duty shall be the MFN rate of customs duty applied on January 1, 2011.
6. For the purpose of the elimination of customs duties in accordance with Article 2.4, interim
staged rates of customs duty shall be rounded down at least to the nearest tenth of a percentage point
or, if the customs rate of duty is expressed in monetary units, at least to the nearest 0.001 of the
official monetary unit of the Party.
7. For the purpose of this Agreement:
(a) Canada’s Schedule is authentic in the English and French languages; and
(b) Ukraine’s Schedule is authentic in the Ukrainian language.
Schedule of Canada (Tariff schedule attached as separate volume)
Schedule of Ukraine
(6.08 MB) (Tariff schedule
attached as separate volume)
Chapter 3: Rules of origin and origin procedures
Section A – General Provisions
Article 3.1: Definitions
For the purposes of this Chapter:
aquaculture
means the farming of aquatic organisms, including fish, molluscs, crustaceans, other aquatic invertebrates
and aquatic plants, from seedstock such as eggs, fry, fingerlings and larvae, by intervention in the rearing or
growth processes to enhance production, such as regular stocking, feeding or protection from predators;
classified
means the classification of a product under a particular heading or subheading of the Harmonized System;
customs authority
means any governmental authority that is responsible under the law of a Party for the administration and
application of customs legislation;
customs value
means the value as determined in accordance with the Customs Valuation Agreement;
determination of origin
means a determination as to whether a product qualifies as an originating product in accordance with this
Chapter;
exporter
means an exporter located in the territory of a Party;
identical originating products
means products that are the same in all respects, including physical characteristics, quality and reputation,
irrespective of minor differences in appearance that are not relevant to a determination of origin of those
products under this Chapter;
importer
means an importer located in the territory of a Party;
material
means any ingredient, component, part or product that is used in the production of another product;
net weight of the non-originating material
means the weight of the material as it is used in the production of the product, not including the weight
of the material’s packaging;
|
|
net weight of the product
means the weight of a product not including the weight of packaging;
producer
means a person who engages in any kind of working or processing, including such operations as growing,
mining, raising, harvesting, fishing, trapping, hunting, manufacturing, assembling or disassembling a product;
product
means the result of production, even if it is intended for use as a material in the production of another
product;
production
means any kind of working or processing, including such operations as growing, mining, raising, harvesting,
fishing, trapping, hunting, manufacturing, assembling or disassembling a product;
transaction value or ex-works price of the product
means the price paid or payable to the producer of the product at the place where the last production was
carried out, and must include the value of all materials. If there is no price paid or payable or if it does
not include the value of all materials, the transaction value or ex-works price of the product:
(a) must include the value of all materials and the cost of production employed in producing the product,
calculated in accordance with generally accepted accounting principles; and
(b) may include amounts for general expenses and profit to the producer that can be reasonably allocated to
the product.
Any internal taxes which are, or may be, repaid when the product obtained is exported are excluded.
Any costs incurred subsequent to the product leaving the place of production, such as transportation, loading,
unloading, handling or insurance, are to be excluded from the calculation of the transaction value or ex-works
price of the product; and
value of non-originating materials
means the customs value of the material at the time of its importation into a Party, as determined in accordance
with the Customs Valuation Agreement. The value of the non-originating material must include any costs incurred
in transporting the material to the place of importation, such as transportation, loading, unloading, handling
or insurance. If the customs value is not known or cannot be ascertained, the value of non-originating
materials will be the first ascertainable price paid for the materials in Canada or Ukraine.
|
Section B – Rules of Origin
Article 3.2: General Requirements
1. For the purposes of this Agreement, a product is originating in the Party
where the last production took place if, in the territory of a Party or in the territory of both of the Parties
in accordance with Article 3.3, it:
(a) has been wholly obtained within the meaning of Article 3.4;
(b) has been produced exclusively from originating materials, including those materials considered under Article
3.5.2; or
(c) has undergone sufficient production within the meaning of Article 3.5.
2. Except as provided for in Articles 3.3.3 and 3.3.4, the conditions set out in this Chapter relating to the
acquisition of originating status must be fulfilled without interruption in the territory of one or both of the
Parties.
Article 3.3: Cumulation of Origin
1. A product that originates in a Party is considered originating in the other
Party when used as a material in the production of a product there.
2. An exporter may take into account production carried out on a non-originating material in the other Party for
the purposes of determining the originating status of a product.
3. Subject to paragraph 4, where, as permitted by the WTO Agreement, each Party has a free trade agreement
with the same non-Party, a material of that non-Party may be taken into consideration by the exporter when
determining whether a product is originating under this Agreement.
4. A Party shall give effect to paragraph 3 upon agreement by the Parties on the applicable conditions.
Article 3.4: Wholly Obtained Products
The following shall be considered as wholly obtained in a Party:
(a) mineral products and other non-living natural resources extracted or taken from the territory of a Party;
(b) vegetables, plants and plant products harvested or gathered in the territory of a Party;
(c) live animals born and raised in the territory of a Party;
(d)
(i) products obtained from live animals in the territory of a Party;
(ii) products from slaughtered animals born and raised in the territory of Party;
(e)
(i) products obtained by hunting, trapping or fishing conducted in the territory of a Party;
(ii) products of aquaculture raised in the territory of Party;
(f) fish, shellfish and other marine life taken from the sea, seabed, ocean floor or the subsoil outside the
territory of the Parties by a vessel registered, recorded or listed with a Party, and entitled to fly its flag;
(g) products made aboard factory vessels exclusively from products referred to in sub-paragraph 1(f), provided
that such factory vessels are registered, recorded or listed with a Party, and entitled to fly its flag;
(h) mineral products and other non-living natural resources, taken or extracted from the seabed, subsoil or
ocean floor of the Area as defined in Article 1(1) of UNCLOS by a Party or a person of a Party, provided
that Party or person of a Party has rights to exploit that seabed, subsoil or ocean floor;
(i) raw materials recovered from used products collected in the territory of a Party, provided that these
products are fit only for such recovery;
(j) components recovered from used products collected in the territory of a Party, provided that these products
are fit only for such recovery, when the component is either:
(i) incorporated in another product; or
(ii) further produced resulting in a product with a performance and life expectancy equivalent or similar to
those of a new product of the same type; and
(k) products, at any stage of production, produced in the territory of a Party exclusively from products specified
in sub-paragraphs (a) through (j).
Article 3.5: Sufficient Production
1. For the purposes of Article 3.2, a product which is not wholly obtained is
considered to have undergone sufficient production when the conditions set out in Annex 3-A are fulfilled.
2. If a non-originating material undergoes sufficient production, the resulting product is considered originating
and no account must be taken of the non-originating material contained therein when that product is used in the
subsequent production of another product.
Article 3.6: Tolerance
1. Notwithstanding Article 3.5.1, and except as provided in paragraphs 2, 3 and 4,
if the non-originating materials used in the production of the product do not fulfil the conditions set out in
Annex 3-A, the product may be considered to be an originating product provided that:
(a) the total value of those non-originating materials does not exceed 10 per cent of the transaction value or
ex-works price of the product;
(b) any of the percentages given in Annex 3-A for the maximum value, volume or weight of non-originating materials
are not exceeded through the application of this paragraph; and
(c) the product satisfies all other applicable requirements of this Chapter.
2. A product of Chapters 50 through 60 of the Harmonized System that does not originate because certain non-originating
materials used in the production of the product do not fulfil the requirements set out for that product in Annex 3-A
is nonetheless originating if the total weight of all such materials does not exceed 10 per cent of the total weight of
that product.
3. For a product of Chapter 61 through 62 of the Harmonized System, the Chapter Note of Chapter 61 or 62, whichever is
applicable, shall apply.
4. A product of Chapter 63 of the Harmonized System that does not originate because certain non-originating materials
used in the production of the component of the product that determines the tariff classification of that product do not
fulfil the requirements set out for that product in Annex 3-A is nonetheless originating if the total weight of all
such materials in that component does not exceed 10 per cent of the total weight of that component.
5. Paragraphs 1 through 4 are subject to Article 3.7(c).
6. Paragraph 1 does not apply to a product wholly obtained in a Party within the meaning of Article 3.4.
Article 3.7: Unit of Classification
For the purposes of this Chapter:
(a) the tariff classification of a particular product or material is determined according to the Harmonized System;
(b) if a product composed of a group or assembly of articles or components is classified pursuant to the terms of
the Harmonized System under a single heading or subheading, the whole constitutes the particular product; and
(c) if a shipment consists of a number of identical products classified under the same heading or subheading of
the Harmonized System, each product is considered separately.
Article 3.8: Packaging and Packing Materials and Containers
1. If, under Rule 5 of the General Rules for the Interpretation of the Harmonized
System, packaging is included with the product for classification purposes, it is considered in determining whether
all the non-originating materials used in the production of the product satisfy the requirements set out in Annex 3-A.
2. Packing materials and containers in which a product is packed for shipment are disregarded in determining the
origin of that product.
Article 3.9: Accounting Segregation of Fungible Materials or
Products
1. (a) If originating and non-originating fungible materials are used in the production of a product, the
determination of the origin of the fungible materials need not be made through physical separation and identification
of any specific fungible material, but may be determined on the basis of an inventory management system.
(b) If originating and non-originating fungible products are physically combined or mixed in inventory in a Party
before exportation to the other Party, the determination of the origin of the fungible products need not be made
through physical separation and identification of any specific fungible product, but may be determined on the basis
of an inventory management system.
2. The inventory management system must:
(a) ensure that, at any time, no more products receive originating status than would have been the case if the
fungible materials or fungible products had been physically segregated;
(b) specify the quantity of originating and non-originating materials or products, including the dates on which
those materials or products were placed in inventory and if required by the applicable rule of origin, the value
of those materials or products;
(c) specify the quantity of products produced using fungible materials, or the quantity of fungible products,
that are supplied to customers requiring evidence of origin in a Party for the purposes of obtaining preferential
treatment under this Agreement and to customers not requiring such evidence; and
(d) indicate if an inventory of originating products was available in sufficient quantity to support the declaration
of originating status.
3. For the purposes of paragraph 1, fungible materials or fungible products means materials or products that are
of the same kind and commercial quality, with the same technical and physical characteristics, and which cannot be
distinguished from one another for origin purposes.
Article 3.10: Accessories, Spare Parts and Tools
Accessories, spare parts and tools delivered with a product that form part of
its standard accessories, spare parts or tools, that are not invoiced separately from the product and which
quantities and value are customary for the product,
are:
(a) taken into account in calculating the value of the relevant non-originating materials when the rule of origin
of Annex 3-A applicable to the product contains a percentage for the maximum value of non-originating materials;
and
(b) disregarded in determining whether all the non-originating materials used in the production of the product
undergo the applicable change in tariff classification or other requirements set out in Annex 3-A.
Article 3.11: Sets
1. Except as provided in Annex 3-A, a set classified as such as a result of
the application of Rule 3 of the General Rules for the Interpretation of the Harmonized System, is originating,
provided that:
(a) all of the set’s component products are originating; or
(b) if the set contains a non-originating component product, the value of the non-originating component products
does not exceed 25 per cent of the transaction value or ex-works price of the set.
2. The value of non-originating component products is calculated in the same manner as the value of non-originating
materials.
3. The transaction value or ex-works price of the set is calculated in the same manner as the transaction value or
ex-works price of the product.
Article 3.12: Neutral Elements
In order to determine whether a product originates, it is not necessary to determine the origin of the following
which might be used in its production:
(a) energy and fuel;
(b) plant and equipment;
(c) machines and tools; or
(d) materials which do not enter and which are not intended to enter into the final composition of the product.
Article 3.13: Transport through a Non-Party
1. A product is not considered originating by reason of having undergone
production that satisfies the requirements of Article 3.2 if, subsequent to that production, the product:
(a) undergoes further production or any other operation outside the territories of the Parties, other than
unloading, reloading, or any other operation necessary to preserve it in good condition, to transport the
product to the territory of a Party; or
(b) does not remain under customs control while outside the territories of the Parties.
2. The storage of a product or shipment or the splitting of shipments may take place if carried out under
the responsibility of the exporter or of a subsequent holder of the products and the products remain under
customs control in the country or countries of transit.
Article 3.14: Returned Originating Products
If an originating product exported from a Party to a non-Party is returned,
it must be considered as non-originating, unless it can be demonstrated to the satisfaction of the customs
authorities that the returning product:
(a) is the same as that exported; and
(b) has not undergone any operation beyond that necessary to preserve it in good condition.
Section C – Origin Procedures
Article 3.15: Proof of Origin
1. Products originating in Ukraine, on importation into Canada, and
products originating in Canada, on importation into Ukraine, benefit from preferential tariff treatment of
this Agreement on the basis of a declaration (“origin declaration”).
2. The origin declaration is provided on an invoice or any other commercial document that describes the
originating product in sufficient detail to enable its identification.
3. The different linguistic versions of the text of the origin declaration are set out in Annex 3-B.
Article 3.16: Obligations Regarding Exportations
1. Each Party shall provide that an origin declaration as referred to in
Article 3.15.1 must be completed by an exporter in the territory of a Party of an originating product
for the purposes of obtaining preferential tariff treatment for that product in the territory of the other
Party.
2. Each Party shall require that the exporter completing an origin declaration shall, at the request of
the customs authority of the Party of export, submit a copy of the origin declaration and all documents
proving the originating status of the products concerned, including supporting documents or written
statements from the producers or suppliers, as well as the fulfilment of the other requirements of this
Chapter.
3. Each Party shall require that an origin declaration be completed and signed by the exporter unless
otherwise provided by the Parties.
4. An origin declaration may be completed by the exporter when the product to which it relates is exported,
or after exportation on the condition that it is presented in the importing Party within a period of two
years, or within a longer period as specified in the legislation of the importing Party, after the
importation of the product to which it relates.
5. The customs authority of the Party of import may, in accordance with its legislation, allow an origin
declaration to apply to multiple shipments of identical originating products that take place within a period
not exceeding 12 months as set out by the exporter in that declaration.
6. An exporter that has completed an origin declaration and that becomes aware or has reason to believe that
the origin declaration contains incorrect information, shall immediately notify the importer in writing of
any change affecting the originating status of each product to which the origin declaration applies.
7. The Parties may allow the establishment of a system that would permit an origin declaration to be submitted
electronically and directly from the exporter in the territory of one Party to an importer in the territory
of the other Party, including the replacement of the exporter's signature on the origin declaration with an
electronic signature or identification code.
Article 3.17: Validity of the Origin Declaration
1. An origin declaration shall be valid for 12 months from the date when it
was completed by the exporter, or for such longer period as determined by the Party of import. The preferential
tariff treatment may be claimed, within the validity period, to the customs authority of the Party of import.
2. An origin declaration which is submitted to the customs authority of the Party of import after the validity
period specified in paragraph 1 may be accepted for the purpose of preferential tariff treatment in accordance
with the legislation of the Party of import.
Article 3.18: Obligations Regarding Importations
1. Each Party shall provide that, for the purpose of claiming preferential
tariff treatment, the importer shall:
(a) submit the origin declaration to the customs authority of the Party of import as required by and in
accordance with the procedures applicable in the Party of import;
(b) if required by the customs authority of the Party of import, submit a translation of the origin
declaration; and
(c) if required by the customs authority of the Party of import, provide for a statement accompanying or
forming part of the import declaration, to the effect that the product meets the conditions required for
the application of this Agreement.
2. Each Party shall require that an importer that becomes aware or has reason to believe that an origin
declaration for a product to which preferential tariff treatment has been granted contains incorrect
information immediately notifies the customs authority of the Party of import in writing of any change
affecting the originating status of that product and pays any duties owing.
3. If an importer claims preferential tariff treatment for a product imported from the territory of the
other Party, the importing Party may deny preferential tariff treatment to the product if the importer
fails to comply with any requirement under this Chapter.
4. A Party shall, in accordance with its legislation, provide that if a product would have qualified as
an originating product when it was imported into the territory of that Party except that the importer
did not have an origin declaration at the time of importation the importer of the product may, within a
period of no less than three years after the date of importation, apply for a refund of duties paid as
a result of the product not having been accorded preferential tariff treatment.
Article 3.19: Proof Related to Transport Through
a Non-Party
1. Each Party, through its customs authority, may require an importer to
demonstrate that a product for which the importer claims preferential tariff treatment was shipped in
accordance with Article 3.13, by providing:
(a) carrier documents, including bills of lading or waybills, indicating the shipping route and all
points of shipment and transhipment prior to the importation of the product; and
(b) if the product was shipped through or transhipped outside the territories of the Parties, a copy of
the customs control documents indicating to that customs authority that the product remained under customs
control while outside the territories of the Parties.
Article 3.20: Importation by Instalments
If, at the request of the importer and on the conditions laid down by the
customs authority of the Party of import, dismantled or non-assembled products within the meaning of Rule 2(a)
of the General Rules for the Interpretation of the Harmonized System falling within Sections XVI and XVII or
headings 7308 and 9406 of the Harmonized System are imported by instalments, a single origin declaration for
these products shall be submitted, as required, to that customs authority upon importation of the first
instalment.
Article 3.21: Exemptions from Origin Declarations
1. A Party may, in conformity with its legislation, waive the requirement to
present an origin declaration as referred to in Article 3.18 for low value shipments of originating products
from the other Party and for originating products forming part of the personal luggage of a traveller coming
from the other Party.
2. A Party may exclude any importation from the provisions of paragraph 1 when the importation is part of a
series of importations that may reasonably be considered to have been undertaken or arranged for the purpose
of avoiding the requirements of this Chapter related to origin declarations.
3. The Parties may set value limits for products referred to in paragraph 1, and shall exchange information
regarding those limits.
Article 3.22: Supporting Documents
The documents referred to in Article 3.16.2 may include documents relating
to the following:
(a) the production processes carried out on the originating product or on materials used in the production
of that product;
(b) the purchase of, the cost of, the value of and the payment for the product;
(c) the origin of, the purchase of, the cost of, the value of and the payment for all materials, including
neutral elements, used in the production of the product; and
(d) the shipment of the product.
Article 3.23: Preservation of Records
1. Each Party shall require that an exporter that has completed an origin
declaration keep a copy of the origin declaration, as well as the supporting documents referred to in Article 3.22,
for three years after the completion of the origin declaration or for a longer period as the Party of export may
specify.
2. Each Party shall provide that if an exporter has based an origin declaration on a written statement from the
producer, the producer must be required to maintain records in accordance with paragraph 1.
3. When provided for in the legislation of the Party of import, an importer that has been granted preferential
tariff treatment shall keep documentation relating to the importation of the product, including a copy of the
origin declaration, for three years after the date on which preferential treatment was granted, or for a longer
period of time as that Party may specify.
4. Each Party shall permit, in accordance with that Party’s legislation, importers, exporters, and producers in
its territory to maintain documentation or records in any medium, provided that the documentation or records can
be retrieved and printed.
5. A Party may deny preferential tariff treatment to a product that is the subject of an origin verification
when the importer, exporter, or producer of the product that is required to maintain records or documentation
under this Article:
(a) fails to maintain records or documentation relevant to determining the origin of the product in accordance
with the requirements of this Chapter; or
(b) denies access to those records or documentation.
Article 3.24: Discrepancies and Formal Errors
1. The discovery of slight discrepancies between the statements made in the
origin declaration and those made in the documents submitted to the customs authorities for the purpose of carrying
out the formalities for importing a product does not, because of that fact, render the origin declaration null and
void if it is established that this document corresponds to the product submitted.
2. Obvious formal errors, such as typing errors, on an origin declaration shall not cause this document to be
rejected if these errors do not create doubts concerning the correctness of the statements made in the document.
Article 3.25: Cooperation
1. The Parties shall cooperate in the uniform administration and interpretation
of this Chapter and, through their customs authorities, assist each other in verifying the originating status of
a product on which an origin declaration is based.
2. For the purpose of facilitating the verifications or assistance referred to in paragraph 1, the customs
authorities of the Parties shall provide each other with addresses of the responsible customs authorities.
3. It is understood that the customs authority of the Party of export assumes all expenses in carrying out paragraph 1.
4. It is further understood that the customs authorities of the Parties will discuss the overall operation and
administration of the verification process, including forecasting of workload and discussing priorities. If there
is an unusual increase in the number of requests, the customs authorities of the Parties shall consult to establish
priorities and consider steps to manage the workload, taking into consideration operational requirements.
5. With respect to products considered originating in accordance with Article 3.3, the Parties may cooperate with a
non-Party to develop customs procedures based on the principles of this Chapter.
Article 3.26: Origin Verification
1. For the purpose of ensuring the proper application of this Chapter, the Parties
shall assist each other, through their customs authorities, in verifying whether a product is originating and ensuring
the accuracy of a claim for preferential tariff treatment.
2. The Parties shall ensure that a request for an origin verification concerning whether a product is originating
or whether all other requirements of this Chapter are fulfilled is:
(a) based on risk assessment methods applied by the customs authority of the Party of import, which may include
random selection; or
(b) made when the Party of import has reasonable doubts.
3. The customs authority of the Party of import may verify whether a product is originating by requesting, in
writing, that the customs authority of the Party of export conduct a verification concerning whether a product is
originating. When requesting a verification, the customs authority of the Party of import shall provide the
customs authority of the Party of export with:
(a) the identity of the customs authority issuing the request;
(b) the name of the exporter or producer to be verified;
(c) the subject and scope of the verification; and
(d) a copy of the origin declaration and, where applicable any other relevant documentation.
4. If appropriate, the customs authority of the Party of import may request, pursuant to paragraph 3, specific
documentation and information from the customs authority of the Party of export.
5. A request made by the customs authority of the Party of import pursuant to paragraph 3 shall be provided to
the customs authority of the Party of export by certified or registered mail or any other method that produces
a confirmation of receipt by that customs authority.
6. The origin verification shall be carried out by the customs authority of the Party of export. For this purpose,
the customs authority may, in accordance with its legislation, request documentation, call for any evidence, or
visit the premises of an exporter or a producer to review the records referred to in Article 3.22 and observe the
facilities used in the production of the product.
7. If an exporter has based an origin declaration on a written statement from the producer or supplier, the
exporter may arrange for the producer or supplier to provide documentation or information directly to the
customs authority of the Party of export upon that Party’s request.
8. As soon as possible and in any event within 12 months after receiving the request referred to in paragraph 3,
the customs authority of the Party of export shall complete a verification of whether the product is originating,
and fulfils the other requirements of this Chapter, and shall:
(a) provide to the customs authority of the Party of import, by certified or registered mail or any other
method that produces a confirmation of receipt by that customs authority, a written report in order for it
to determine whether the product is originating or not that contains:
(i) the result of the verification,
(ii) the description of the product subject to verification and the tariff classification relevant to the
application of the rule of origin,
(iii) a description and explanation of the production sufficient to support the rationale concerning the
originating status of the product,
(iv) information on the manner in which the verification was conducted, and
(v) if appropriate, supporting documentation; and
(b) subject to its legislation, notify the exporter of its decision concerning whether the product is
originating.
9. The period of time referred to in paragraph 8 may be extended by mutual consent of the customs
authorities concerned.
10. Pending the results of an origin verification conducted pursuant to paragraph 8, the customs authority
of the Party of import, subject to any precautionary measures it deems necessary, shall offer to release the
product to the importer.
11. Where a written report has not been provided in accordance with sub-paragraph 8(a), or where the
customs authority of the Party of import is unable to arrive at a conclusion as to whether a product is
originating, that customs authority may deny preferential tariff treatment to the product.
12. If there are differences in relation to the verification procedure of this Article or in the interpretation
of the rules of origin in determining whether a product qualifies as originating, and these differences cannot
be resolved through consultations between the customs authority requesting the verification and the customs
authority responsible for performing the verification, the Parties are encouraged to resolve those differences
within the Subcommittee on Origin Procedures.
13. This Chapter does not prevent a customs authority of a Party from issuing a determination of origin or an
advance ruling relating to any matter under consideration by the Subcommittee on Origin Procedures, or the Committee
on Trade in Goods and Rules of Origin or from taking any other action that it considers necessary, pending a
resolution of the matter under this Agreement.
Article 3.27: Review and Appeal
1. Each Party shall grant substantially the same rights of review and appeal
of determinations of origin and advance rulings issued by its customs authority as it provides to importers
in its territory, to any person who:
(a) has received a decision on origin in the application of this Chapter; or
(b) has received an advance ruling pursuant to Article 3.30.1.
2. Further to Articles 14.4 (Administrative Proceedings) and 14.5 (Review and Appeal), each Party shall
provide that the rights of review and appeal referred to in paragraph 1 include access to at least two levels of
appeal or review including at least one judicial or quasi-judicial level.
Article 3.28: Penalties
Each Party shall maintain measures imposing criminal, civil or administrative
penalties for violations of its legislation relating to this Chapter.
Article 3.29: Confidentiality
1. This Chapter does not require a Party to furnish or allow access to business
information or to information relating to an identified or identifiable natural person, the disclosure of which
would impede law enforcement or would be contrary to that Party’s law protecting business information and personal
data and privacy.
2. Each Party shall maintain, in conformity with its law, the confidentiality of the information collected
pursuant to this Chapter and shall protect that information from disclosure that could prejudice the competitive
position of the person providing the information. If the Party receiving or obtaining the information is required
by its legislation to disclose the information, that Party shall notify the person or Party who provided that
information.
3. Each Party shall ensure that the confidential information collected pursuant to this Chapter is not used for
purposes other than the administration and enforcement of determination of origin and of customs matters, except
with the permission of the person or Party who provided the confidential information.
4. Notwithstanding paragraph 3, a Party may allow information collected pursuant to this Chapter to be used in
any administrative, judicial or quasi-judicial proceeding instituted for failure to comply with customs related
legislation implementing this Chapter. A Party shall notify the person or Party who provided the information in
advance of this use.
5. The Parties shall exchange information on their respective law concerning data protection for the purpose of
facilitating the operation and application of paragraph 2.
Article 3.30: Advance Rulings Relating to Origin
1. Each Party shall, through its customs authority, provide for the
expeditious issuance of written advance rulings, prior to the importation of a product into its territory,
on the request of an importer in its territory or an exporter or a producer in the territory of the other
Party, concerning whether a product qualifies as an originating product under this Chapter.
2. Each Party shall adopt or maintain procedures for the issuance of advance rulings, including a
detailed description of the information reasonably required to process an application for a ruling.
3. Each Party shall provide that its customs authority:
(a) may, at any time during the course of an evaluation of an application for an advance ruling, request
supplemental information from the person requesting the ruling;
(b) issue the ruling within 150 days from the date on which it has obtained all necessary information from
the person requesting the advance ruling; and
(c) provide, to the person requesting the advance ruling, a full explanation of the reasons for the ruling.
4. If an application for an advance ruling involves an issue that is the subject of:
(a) a verification of origin;
b) a review by, or appeal to, a customs authority; or
(c) a judicial or quasi-judicial review in the customs authority’s territory;
the customs authority, in conformity with its legislation, may decline or postpone the issuance of the ruling.
5. Subject to paragraph 7, each Party shall apply an advance ruling to importations into its territory of the
product for which the ruling was requested on the date of its issuance or at a later date if specified in the
ruling.
6. Each Party shall provide, to any person requesting an advance ruling, the same treatment as it provided to
any other person to whom it issued an advance ruling, provided that the facts and circumstances are identical
in all material respects.
7. The Party issuing an advance ruling may modify or revoke an advance ruling:
(a) if the ruling is based on an error of fact;
(b) if there is a change in the material facts or circumstances on which the ruling is based;
(c) to conform with an amendment of Chapter 2 (National Treatment and Market Access) or this Chapter; or
(d) to conform with a judicial decision or a change in that Party’s law.
8. Each Party shall provide that a modification or revocation of an advance ruling is effective on the
date on which the modification or revocation is issued, or on a later date if specified in the ruling,
and shall not be applied to importations of a product that have occurred prior to that date, unless the
person to whom the advance ruling was issued has not acted in accordance with its terms and conditions.
9. Notwithstanding paragraph 8, the Party issuing the advance ruling may, in conformity with its law,
postpone the effective date of a modification or revocation for no more than six months.
10. Subject to paragraph 7, each Party shall provide that an advance ruling remains in effect and is
honoured.
Article 3.31: The Subcommittee on Origin
Procedures
1. The Parties hereby establish a Subcommittee on Origin Procedures,
composed of representatives of each Party, to consider any matter arising under Section C – Origin
Procedures.
2. The Subcommittee on Origin Procedures shall meet on the request of either Party and endeavour to
decide upon:
(a) the uniform administration and interpretation of the rules of origin, including tariff classification
and valuation matters relating to the rules of origin;
(b) technical, interpretive or administrative matters that may arise under Section C – Origin Procedures; and
(c) any other matter referred to it by the Committee on Trade in Goods and Rules of Origin.
3. The Subcommittee on Origin Procedures reports to the Committee on Trade in Goods and Rules of Origin.
Annex 3-A: Product-Specific Rules of Origin
See separate document.
Annex 3-B: Text of the Origin Declaration
English Version
The origin declaration, the text of which is given below, must be
completed in accordance with the footnotes. However, the footnotes do not have to be reproduced.
(Period: from___________ to __________)1
The exporter of the products covered by this document declares that, except where otherwise clearly
indicated, these products are of ...
2 preferential origin.
…………………………………………………………….............................................
3
(Place and date)
…………………………………………………………….............................................
4
(Signature and printed name of the exporter)
French Version
La déclaration d’origine, dont le libellé suit, doit être remplie
conformément aux notes de bas de page. Toutefois, il n’y a pas lieu de reproduire ces notes.
(Période du___________ au __________)
L’exportateur des produits visés par le présent document déclare que, sauf indication claire du
contraire, ces produits ont l’origine préférentielle....
…………………………………………………………….............................................
(Lieu et date)
…………………………………………………………….............................................
(Signature et nom en caractères d’imprimerie de l’exportateur)
Ukrainian Version
Декларація про походження, текст якої наведено нижче,
має бути оформлена відповідно до виносок, наданих нижче. Але виноски відтворювати
не потрібно.
((Період: з до _____________ до ________________)
Експортер товарів, на які поширюється цей документ, заявляє,
що за винятком випадків, де чітко зазначено інше, ці товари є товарами
преференційного походження .
…………………………………………………………….............................................
(місце та дата)
…………………………………………………………….............................................
(підпис та назва експортера друкованими літерами)
Chapter 4: Trade facilitation
Article 4.1: Objectives, Principles, and General Provisions
1. The Parties acknowledge the importance of customs and trade
facilitation matters in the evolving global trading environment.
2. The Parties shall, to the extent possible, cooperate and exchange information, including information
on best practices, to promote the application of and compliance with the trade facilitation measures in this
Agreement.
3. Each Party shall ensure that its measures to facilitate trade do not hinder mechanisms to protect a
person through effective enforcement of and compliance with its law.
4. Each Party shall ensure that its import, export and transit requirements and procedures are no more
administratively burdensome or trade restrictive than necessary to achieve a legitimate objective.
5. Each Party shall use existing international trade and customs instruments and standards as a basis
for its import, export and transit requirements and procedures, unless they would be an inappropriate or
ineffective means for the fulfilment of the legitimate objective pursued.
Article 4.2: Transparency
1. Each Party shall publish or otherwise make available, including
electronically, its legislation, judicial decisions and administrative policies relating to import or export
requirements.
2. Each Party shall endeavour to make public, including on the internet, proposed regulations and
administrative policies relating to customs matters and to provide interested persons an opportunity to
comment prior to their adoption.
3. Each Party shall designate or maintain one or more contact points to address inquiries by interested
persons concerning customs matters and make available, including on the internet, information concerning the
procedures for making these inquiries.
Article 4.3: Release of Goods
1. Each Party shall adopt or maintain simplified customs procedures for
the efficient release of goods in order to facilitate trade between the Parties and reduce costs for importers
and exporters. Each Party shall ensure that its procedures:
(a) allow for the release of goods within a period of time no longer than that required to ensure compliance
with its law;
(b) require the submission of more extensive information through post-entry accounting and verifications, as
appropriate;
(c) allow goods, and to the extent possible controlled or regulated goods, to be released at the first point of
arrival;
(d) allow, to the extent possible, for the expeditious release of goods in need of emergency clearance;
(e) allow an importer or its agent to remove goods from customs control prior to the final determination and
payment of customs duties, taxes, and fees. Before releasing the goods, a Party may require that an importer
provide sufficient guarantee in the form of a surety, a deposit, or some other appropriate instrument. The
guarantee shall be limited to an amount calculated to ensure compliance with a Party’s requirements for customs
duties, taxes and fees, and shall not represent an indirect protection of domestic products or taxation of
imports for fiscal purposes; and
(f) provide for, in accordance with its law, simplified documentation requirements for the entry of low-value
goods as determined by each Party.
2. Each Party shall adopt or maintain separate customs procedures for the expedited release of express shipments.
These procedures shall:
(a) when applicable, use the World Customs Organization (WCO), Guidelines for the Immediate Release of Consignments
by Customs, as amended;
(b) to the extent possible or if applicable, provide for advance electronic submission and processing of information
before physical arrival of express shipments to enable their release upon arrival;
(c) to the extent possible, provide for clearance of certain goods with a minimum of documentation;
(d) not be limited by a maximum weight; and
(e) provide for, in accordance with a Party’s legislation, simplified documentation requirements for the entry of
low-value goods as determined by that Party.
3. Each Party shall ensure, to the extent possible, that its authorities and agencies involved in border and
other import and export controls cooperate and coordinate to facilitate trade by, among other things, converging
import and export data and documentation requirements and establishing a single location for one-time documentation
and physical verification of consignments.
4. Each Party shall ensure, to the extent possible, that its import and export requirements are coordinated to
facilitate trade, regardless of whether these requirements are administered by an agency or on behalf of that agency
by the customs authority.
Article 4.4: Customs Valuation
The Customs Valuation Agreement governs customs valuation applied to reciprocal trade
between the Parties.
Article 4.5: Fees and Charges
Each Party shall publish or otherwise make available information on fees and charges
imposed by its customs authority, including electronically. This information shall include the applicable fees and charges,
the specific reason for the fee or charge, the responsible authority, and when and how payment is to be made. A Party
shall not impose new or amended fees and charges until it publishes or otherwise makes available this information.
Article 4.6: Risk Management
1. Each Party shall base its examination, release, and post-entry verification
procedures on risk assessment principles, rather than requiring each shipment offered for entry to be examined in a
comprehensive manner for compliance with import requirements.
2. Each Party shall adopt and apply its import, export and transit requirements and procedures for goods on the
basis of risk management principles that focus compliance measures on transactions that merit attention.
3. Paragraphs 1 and 2 do not preclude a Party from conducting a quality control and compliance review that may
require more extensive examinations.
Article 4.7: Automation
1. Each Party shall use information technologies that expedite its domestic
procedures for the release of goods in order to facilitate trade, including trade between the Parties.
2. Each Party shall:
(a) endeavour to make available electronically customs forms that are required for the import or export of goods;
(b) allow, subject to its law, those customs forms to be submitted in electronic format; and
(c) if possible, provide for the electronic exchange of information with its trading community through its customs
authority.
3. Each Party shall endeavour to:
(a) develop or maintain fully interconnected single window systems to facilitate a single electronic submission of
information required by customs and non-customs legislation for cross-border movements of goods; and
(b) develop a set of data elements and processes in accordance with the WCO Data Model and related WCO
recommendations and guidelines.
4. The Parties shall endeavour to cooperate on the development of interoperable electronic systems, taking
account of the work at the WCO, in order to facilitate trade between the Parties.
Article 4.8: Advance Rulings for Tariff Classification
1. Subject to Chapter 3 (Rules of Origin and Origin Procedures), a Party
shall issue a written ruling prior to an importation in response to a written request by an importer in its territory,
exporter or producer in the territory of the other Party, or their respective representatives.
2. A Party shall issue these rulings for tariff classification or rate
of customs duty, except with respect to any form of surtax or surcharge,
applicable upon importation.
3. For the purposes of paragraph 1, the issuance of advance rulings
shall be administered in the same manner as the procedures set out in Article
3.30 (Advance Rulings relating to Origin).
Article 4.9: Review and Appeal
1. Each Party shall ensure that an administrative action or
official decision taken in respect of the import of goods is promptly reviewable by judicial, arbitral,
or administrative tribunals or through administrative procedures.
2. The tribunal or official conducting the review referred to in paragraph 1 shall be independent
of the official or office issuing the decision and shall have the competence to maintain, modify or
reverse the determination, in accordance with the Party’s law.
3. Before requiring a person to seek redress at a more formal or judicial level, each Party shall
provide for an administrative level of appeal or review that is independent of the official or, if applicable,
the office responsible for the original action or decision.
4. Each Party shall grant a person that has received an advance ruling pursuant to Article 4.8 (Advance
Rulings for Tariff Classification) substantially the same right of review and appeal of determinations of
advance rulings by its customs authority that the Party provides to importers in its territory.
Article 4.10: Penalties
Each Party shall ensure that its customs legislation provides that any
penalty imposed for a breach of customs legislation or procedures is proportionate and non-discriminatory and,
in its application, does not result in unwarranted delays.
Article 4.11: Confidentiality
1. Each Party shall, in accordance with its law:
(a) treat as strictly confidential information obtained under this Chapter that is by its nature
confidential or that is provided on a confidential basis; and
(b) protect that information from disclosure that could prejudice the competitive position of the
person providing the information.
2. If the Party receiving or obtaining the information referred to in paragraph 1 is required by its
law to disclose this information, that Party shall notify the Party or person who provided the information.
3. Each Party shall ensure that information collected under this Chapter shall only be used for purposes
related to the administration and enforcement of customs matters, except with the permission of the Party or
person that provided the information.
4. A Party may allow information collected under this Chapter to be used in administrative, judicial,
or quasi-judicial proceedings instituted for failure to comply with customs-related legislation implementing
this Chapter. A Party shall notify the Party or person that provided the information in advance of such use.
Article 4.12: Cooperation
1. The Parties shall continue to cooperate in international fora, such
as the WCO, to achieve mutually-recognised goals, including those set out in the WCO SAFE Framework of Standards
to Secure and Facilitate Global Trade.
2. The Parties shall develop a technical cooperation program in customs matters under jointly decided terms
as to the scope, timing and cost of cooperative measures.
3. The Parties shall cooperate:
(a) in the enforcement of their respective customs-related legislation implementing this Agreement;
(b) to the extent practicable and for purposes of facilitating the flow of trade between them, in customs
matters such as the collection and exchange of statistics regarding the importation and exportation of
goods, the harmonization of documentation used in trade and the standardization of data elements;
(c) to the extent practicable, to harmonize customs laboratories’ methods and the exchange of information and
personnel between the customs laboratories;
(d) in the development of effective mechanisms for communicating with the trade and business communities; and
(e) in such other matters as the Parties may decide.
4. If a Party has reasonable grounds to suspect that an offence related to a fraudulent claim for preferential
tariff treatment pursuant to this Agreement has occurred, it may request the other Party to provide information
pertaining to the offence, including:
(a) the name and address of persons and companies relevant to the investigation of the offence;
(b) shipping information relevant to the offence;
(c) customs clearance and accounting records or equivalent records for goods or materials imported into the
territory of the other Party;
(d) information related to the sourcing of materials, including indirect materials used in the production of
goods exported from the territory of the other Party; and
(e) information related to production capacity of an exporter or producer who has exported goods to the
territory of the other Party.
5. If a Party makes a request pursuant to paragraph 4, it shall:
(a) make its request in writing;
(b) specify the grounds for suspicion of a fraudulent claim for preferential tariff treatment pursuant to
this Agreement and the purposes for which the information is sought; and
(c) identify the requested information with sufficient specificity for the other Party to locate and provide
the information.
6. Following the receipt of a request for information pursuant to paragraphs 4 and 5, a Party shall provide
relevant information subject to its law.
7. Officials of a Party may, with the consent of the other Party, contact or visit an exporter, supplier or
producer in the territory of the other Party in order to obtain information to further an investigation related to
a suspected fraudulent claim for preferential tariff treatment made pursuant to this Agreement.
8. Each Party shall, when possible on its own initiative, provide the other Party with information relating to
fraudulent claims for preferential tariff treatment made pursuant to this Agreement.
9. Nothing in this Chapter shall be construed to require a Party to furnish or to allow access to information
the disclosure of which would impede law enforcement or would be contrary to the Party’s law protecting personal
privacy.
10. If a Party declines or postpones sharing the information requested by the other Party pursuant to this
Article, the Party shall provide reasons to the other Party.
Article 4.13: Future Work Program
1. With the objective of developing further steps to facilitate trade under
this Agreement, the Parties shall, as appropriate, identify and submit for consideration by the Joint Commission
new measures aimed at facilitating trade between the Parties.
2. The Parties shall regularly review relevant international initiatives on trade facilitation, including
the Compendium of Trade Facilitation Recommendations, developed by the United Nations Conference on Trade
and Development and the United Nations Economic Commission for Europe, to identify areas in which further joint
action would facilitate trade between the Parties and promote shared multilateral objectives.
Chapter 5: Emergency action and trade remedies
Section A - Definitions
Article 5.1: Definitions
For the purposes of this Chapter:
Agreement on Safeguards means the WTO Agreement on Safeguards, contained in Annex 1A to the WTO Agreement;
Anti-Dumping Agreement means the WTO Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994, contained in Annex 1A to the WTO Agreement;
competent investigating authority means:
(a) in the case of Canada, the Canadian International Trade Tribunal, or its successor; and
(b) in the case of Ukraine, the Ministry of Economic Development and Trade, or its successor;
domestic industry means, with respect to an imported good, the producers as a whole of the like or directly
competitive good operating in the territory of a Party or those whose collective production of the like or directly
competitive good constitutes a major proportion of the total domestic production of that good;
emergency action means an emergency action described in Article 5.3;
SCM Agreement means the WTO Agreement on Subsidies and Countervailing Measures, contained in Annex 1A
to the WTO Agreement;
serious injury means a significant overall impairment of a domestic industry;
substantial cause means a cause that is important and not less important than any other cause;
threat of serious injury means serious injury that is clearly imminent based on facts and not based on allegation,
conjecture or remote possibility; and
transition period means the 7-year period beginning on the entry into force of this Agreement, except where the
tariff elimination for the good against which the action is taken occurs over a longer period of time, in which case
the transition period is the period of the staged tariff elimination for that good.
Section B – Emergency Action
Article 5.2: Article XIX of the GATT 1994 and the Agreement on Safeguards
1. Each Party retains its rights and obligations under Article XIX of the GATT 1994
and the Agreement on Safeguards, which exclusively govern global safeguard actions including the resolution of a dispute
with respect to those matters.
2. A Party shall not adopt or maintain, with respect to the same good, at the same time:
(a) an emergency action; and
(b) a measure under Article XIX of the GATT 1994 and the Agreement on Safeguards.
Article 5.3: Bilateral Emergency Actions
1. A Party may adopt an emergency action described in paragraph 2:
(a) only during the transition period; and
(b) if as a result of the reduction or elimination of a duty pursuant to this Agreement, an originating good
is being imported into the Party’s territory in such increased quantities, in absolute terms or relative to domestic
production, and under such conditions as to constitute a substantial cause of serious injury, or threat thereof, to
a domestic industry producing a like or directly competitive good.
2. If the conditions set out in paragraph 1 and Article 5.4 and 5.5 are met, a Party may, to the extent necessary to
prevent or remedy serious injury, or threat of serious injury:
(a) suspend the further reduction of a rate of duty provided for under this Agreement on the good; or
(b) increase the rate of duty on the good to a level not exceeding the lesser of:
(i) the most-favoured-nation (MFN) applied rate of customs duty in effect at the time the emergency action is taken,
and
(ii) the base rate of customs duty as provided in the Party’s schedule to Annex 2-B (Tariff Elimination); or
(c) in the case of a customs duty applied to a good on a seasonal basis, increase the rate of customs duty to a
level not to exceed the lesser of:
(i) the MFN applied rate of customs duty on the good in effect for the corresponding season immediately preceding the
date of application of an emergency action, or
(ii) the MFN applied rate of customs duty on the good in effect for the corresponding season immediately preceding
the date of entry into force of this Agreement, or
(iii) the base rate of customs duty provided for in the Party’s schedule to Annex 2-B (Tariff Elimination).
3. Any emergency action shall be adopted no later than one year after the date the proceeding is instituted.
Article 5.4: Notification and Discussions
1. A Party shall, in writing, promptly notify and invite the other Party for
discussions with respect to:
(a) initiating an emergency action proceeding;
(b) making a finding of serious injury or threat of serious injury under the conditions set out in Article
5.3.1; or
(c) applying an emergency action.
2. A Party shall, without delay, provide the other Party with a copy of the public version of any notice or any
report by a competent investigating authority issued in connection with matters notified pursuant to paragraph 1.
3. If a Party accepts an invitation for discussions made pursuant to paragraph 1, the Parties shall discuss the
notification under paragraph 1, or the public version of a document issued by a competent investigating authority
in connection with the emergency action proceeding.
Article 5.5: Standards for Emergency Actions
1. A Party shall not maintain an emergency action:
(a) to an extent or for a period that exceeds what is necessary to prevent or remedy serious injury and
facilitate adjustment;
(b) for a period exceeding three years; or
(c) beyond the expiration of the transition period.
2. A Party shall not apply an emergency action against an originating good more than once.
3. In order to facilitate adjustment in a situation where the expected duration of an emergency action is greater
than one year, the Party taking the action shall progressively liberalize the emergency action at annual intervals
during the period of application.
4. On the termination of an emergency action, a Party shall set the rate of customs duty at the rate that would
have been in effect but for the action according to the Party's Schedule to Annex 2-B (Tariff Elimination) for
the staged elimination of the customs duty.
5. A Party taking an emergency action under Article 5.3 shall provide to the exporting Party mutually agreed trade
liberalizing compensation in the form of concessions with substantially equivalent trade effects or equivalent
to the value of the additional duties expected to result from the action. If the Parties are unable to agree on
compensation, the Party whose goods are subject to the action may take tariff action with trade effects
substantially equivalent to the emergency action taken under Article 5.3. The Party taking the tariff action
shall apply the action only for the minimum period necessary to achieve the substantially equivalent effects and,
in any event, only while the emergency action under Article 5.3 is in effect.
Article 5.6: Administration of Emergency Action Proceedings
1. Each Party shall ensure the consistent, impartial and reasonable administration
of its legislation, decisions and rulings governing emergency action proceedings.
2. Each Party shall entrust determinations of serious injury, or threat of serious injury, in an emergency action
proceeding, to a competent investigating authority. Each Party shall:
(a) ensure that those determinations are subject to review by judicial or administrative tribunals, to
the extent provided by the Party’s legislation;
(b) ensure that negative injury determinations are not modified, except through a review referred to in
sub-paragraph (a); and
(c) provide its competent investigating authority with the necessary resources to enable it to fulfill
its duties.
3. Each Party shall adopt or maintain equitable, timely, transparent and effective procedures for emergency action
proceedings in accordance with the requirements set out in paragraph 4.
4. A Party shall apply an emergency action only following an investigation by the Party’s competent investigating
authority in accordance with Articles 3 and 4.2 of the Agreement on Safeguards. To this end, Articles 3 and 4.2
of the Agreement on Safeguards are incorporated into and made part of this Agreement.
Article 5.7: Dispute Settlement in Emergency Action Matters
1. A Party shall not request the establishment of a panel under Article 17.7
(Establishment of a Panel) regarding a proposed emergency action.
2. A Party may request the establishment of a panel under Article 17.7 (Establishment of a Panel) regarding
an actual emergency action.
Section C – Anti-Dumping and Countervailing Measures
Article 5.8: Relation to Other Agreements
1. Each Party shall apply anti-dumping and countervailing measures in accordance with
Article VI of the GATT 1994, the Anti-Dumping Agreement and the SCM Agreement.
2. This Section is not subject to Chapter 17 (Dispute Settlement).
Article 5.9: Transparency
1. A Party shall ensure, after an imposition of provisional measures, and in
any case, before a final determination is made, full and meaningful disclosure of all essential facts under consideration which form the basis for the decision whether to apply final measures. This is without prejudice to Article 6.5 of the Anti-Dumping Agreement and Article 12.4 of the SCM Agreement.
2. Provided that it does not unnecessarily delay the conduct of the investigation, each interested party in an
anti-dumping or countervailing investigation 1 shall be
granted a full opportunity to defend its interests.
Chapter 6: Sanitary and phytosanitary measures
Article 6.1: Relation to other Agreements
. The Parties affirm their rights and obligations under the SPS Agreement.
2. The Parties shall use the WTO dispute settlement procedures for any formal disputes regarding sanitary and
phytosanitary measures.
Article 6.2: Scope and Coverage
This Chapter applies to all sanitary and phytosanitary measures that may,
directly or indirectly, affect trade between the Parties.
Article 6.3: Sanitary and Phytosanitary Contact Points
1. On the entry into force of this Agreement, each Party shall designate a
Contact Point to facilitate communication on sanitary and phytosanitary trade-related matters and share the
Contact Point information with the other Party.
2. The Contact Point is responsible for communications relating to sanitary and phytosanitary issue prevention
and resolution.
Article 6.4: Sanitary and Phytosanitary Issue Prevention
and Resolution
1. The Parties shall work expeditiously to resolve any specific sanitary or
phytosanitary trade-related matters. The Parties shall give priority to resolving sanitary and phytosanitary
issues through discussion between regulatory officials.
2. The Parties shall avail themselves of every means to prevent and resolve issues, including the use of
technology (such as teleconference or videoconference) and opportunities that may arise at international forums.
3. At the request of a Contact Point, the Parties shall meet as soon as possible to resolve any specific
sanitary or phytosanitary trade-related matters. Unless the Parties decide otherwise, they shall meet within 45
days of the request, through the use of technology (such as teleconference or videoconference) or in person.
Chapter 7: Technical barriers to trade
Article 7.1: Definitions
For the purposes of this Chapter:
TBT Agreement means the WTO Agreement on Technical Barriers to Trade; and
TBT Committee means the WTO Committee on Technical Barriers and Trade.
Article 7.2: WTO Agreement on Technical Barriers to Trade
The TBT Agreement, excluding Articles 10, 11, 12, 13, 14.1, 14.4 and 15, is hereby
incorporated into and made part of this Agreement, mutatis mutandis.
Article 7.3: Scope
1. This Chapter applies to the preparation, adoption, and application of standards,
technical regulations, and conformity assessment procedures of national governmental bodies that may affect the trade
in goods between the Parties.
2. This Chapter does not apply to:
(a) a purchasing specification prepared by a governmental body for production or consumption requirements of a
governmental body; or
(b) a sanitary or phytosanitary measure as defined in Annex A of the SPS Agreement.
Article 7.4: Joint Cooperation
1. The Parties shall endeavour to strengthen their cooperation in the areas of
standards, technical regulations, accreditation, conformity assessment procedures, and metrology in order to facilitate
trade between the Parties.
2. Further to paragraph 1, the Parties shall endeavour to identify, develop and promote bilateral initiatives regarding
standards, technical regulations, accreditation, conformity assessment procedures and metrology that are appropriate
for particular issues or sectors. These initiatives may include:
(a) regulatory or technical cooperation programs directed at reaching effective and full compliance with the
obligations of this Chapter and the TBT Agreement;
(b) initiatives to develop common views on good regulatory practices, such as transparency and the use of equivalency
and regulatory impact assessment; and
(c) the use of mechanisms to facilitate the acceptance of the results of conformity assessment procedures conducted
in the other Party’s territory.
3. A Party shall give consideration to a reasonable sector-specific proposal made by the other Party for further
cooperation under this Chapter.
Article 7.5: International Standards
1. Each Party shall use relevant international standards, guides and recommendations
as a basis for their technical regulations and conformity assessment procedures in accordance with Articles 2.4 and
5.4 of the TBT Agreement.
2. Each Party shall determine whether an international standard, guide or recommendation exists within the meaning
of Articles 2 or 5 or Annex 3 of the TBT Agreement, based on whether the standard, guide or recommendation
in question was developed by a standardizing body that observes the principles set out in the Decisions
and Recommendations adopted by the WTO Committee on Technical Barriers to Trade since 1 January 1995,
G/TBT/1/Rev.9, as may be revised, issued by the TBT Committee.
Article 7.6: Conformity Assessment
1. The Parties shall cooperate by encouraging their respective conformity assessment
bodies, including accreditation bodies, to participate in cooperation arrangements that promote the mutual acceptance
of conformity assessment results.
2. Each Party shall recognize conformity assessment bodies located in the territory of the other Party on conditions
no less favorable than those that it applies for the recognition of conformity assessment bodies in its own territory.
A Party shall not require conformity assessment bodies located in the territory of the other Party to establish a
legal or physical presence in its own territory or that a separate agreement be concluded between the Parties as a
pre-condition for the recognition of the other Party’s conformity assessment bodies.
3. Notwithstanding paragraph 2, each Party shall consider a request to develop and implement the mutual recognition
of conformity assessment bodies with respect to radio and terminal telecommunications equipment.
4. If a Party recognizes an accreditation body established in the territory of the other Party as competent to
accredit conformity assessment bodies as having the competence to assess conformity with the Party’s technical
regulations, the Party shall apply for the recognition of those conformity assessment bodies, on conditions that
are no less favourable than those applied for the recognition of its accredited conformity assessment body located
in the territory of the Party.
5. Each Party is encouraged to recognize as competent to accredit conformity assessment bodies an accreditation
body established in the territory of the other Party that is a signatory to the International Laboratory
Accreditation Cooperation Mutual Recognition Arrangement; a signatory to the International Accreditation
Forum Multilateral Recognition Agreement; or a signatory to, and for relevant accreditation scopes covered
under, the European Accreditation Multilateral/Bilateral Agreement.
6. With respect to paragraph 4, each Party recognizes that it may apply additional procedures to verify the
competence of an accredited conformity assessment body if:
(a) the Party applies conditions for the recognition of conformity assessment bodies that supplement
international standards , including conditions with respect to the accreditation of those bodies; and
(b) the Party requires assurance that a conformity assessment body is technically capable to assess whether products
fulfill the requirements of a particular standard or technical regulation.
7. Each Party shall take reasonable measures to ensure that accreditation bodies established in its territory
accredit conformity assessment bodies established in the territory of the other Party under conditions no less
favourable than the conditions applied to conformity assessment bodies located in its territory. A Party may not
take measures that limit or discourage the ability of accreditation bodies established in its territory from
accrediting conformity assessment bodies established in the territory of the other Party, under conditions no
less favourable than those applied to the accreditation of conformity assessment bodies in its own territory.
8. Each Party shall accept the results of conformity assessment procedures conducted by conformity assessment
bodies located in the other Party’s territory, which have been recognized by the other Party, under conditions no
less favourable than those conditions applied to the acceptance of the results of conformity assessment procedures
conducted by recognized conformity assessment bodies in its territory.
9. The Parties shall exchange, no later than upon the entry into force of this Agreement, information on their
respective conditions for the recognition of conformity assessment bodies, including applicable accreditation
requirements and procedures that a conformity assessment body must fulfill to apply for recognition.
10. If a Party recognizes a conformity assessment body in the territory of the other Party, it shall promptly inform
the other Party that it recognizes that conformity assessment body and of the scope of the body’s accreditation.
11. Nothing in this agreement prevents each Party from retaining the powers established under their respective
domestic laws to take all permissible measures with respect to products that may compromise the health or safety of
persons in its respective territory, or which otherwise fail to conform to their respective technical regulations.
12. If a Party does not accept the results of a conformity assessment procedure conducted by a recognized
conformity assessment body in the territory of the other Party, it shall, on the request of the other Party,
provide the reasons for its decision.
13. Nothing in this Chapter prevents a Party from undertaking conformity assessment in relation to specific
products solely by government bodies that are located in its territory, subject to the Parties’ obligations
under the TBT Agreement.
Article 7.7: Transparency
1. The obligations in this Article supplement those set out in Chapter 14
(Transparency). In the event of an inconsistency between this Article and the obligations in Chapter 14 this
Article prevails.
2. Each Party shall ensure that transparency procedures regarding the development of technical regulations
and conformity assessment procedures allow interested persons to participate at an early appropriate stage, when
amendments may be introduced and comments may be taken into account, unless urgent problems of safety, health,
environmental protection or national security arise or threaten to arise. If a consultation process for the
development of technical regulations and conformity assessment procedures is open to the public, a Party shall
permit persons of the other Party to participate on terms no less favourable than those accorded to its own
persons.
3. Each Party shall recommend that standardization bodies in its territory observe paragraph 2 in the
consultation processes for the development of standards or voluntary conformity assessment procedures.
4. Each Party shall allow a period of at least 60 days following its notification to the WTO’s Central Registry
of Notifications of proposed technical regulations and conformity assessment procedures for the public and the other
Party to provide written comments, unless urgent problems of safety, health, environmental protection or national
security arise or threaten to arise.
5. At the time a Party submits its notification of technical regulations and conformity assessment procedures
to the WTO Central Registry of Notifications in accordance with the TBT Agreement, it shall include an electronic
link to, or a copy of, the full text of the document.
6. Each Party shall, at the request of the other Party, provide its responses or a summary of its responses,
to significant comments it receives.
7. Each Party, at the request of the other Party, shall provide information regarding the objectives of, and
rationale for, a technical regulation or conformity assessment procedure that the Party has adopted or is proposing
to adopt.
8. If a Party does not accept a technical regulation of the other Party as equivalent to its own, it shall explain
its decision at the request of the other Party. The Parties recognize that it may be necessary to develop common
views, methods, and procedures to facilitate the use of equivalency.
9. The Parties shall ensure that all adopted technical regulations and conformity assessment procedures are published
on official websites that are publicly available without charge.
10. If a Party, at a port of entry, detains a good imported from the territory of the other Party on the basis that
the good may not comply with a technical regulation, it shall immediately notify the importer of the reasons for the
detention of the good.
11. Any information that is provided at the request of a Party under this Chapter shall be provided in print or
electronically within a reasonable period of time. The Party receiving the request shall endeavour to respond to
the request within 60 days.
Article 7.8: Contact Points
1. The Contact Points are:
(a) in the case of Canada, the Department of Foreign Affairs, Trade and Development, or its successor; and
(b) in the case of Ukraine, Ministry of Economic Development and Trade of Ukraine, or its successor.
2. The Contact Points are responsible for communications related to matters that arise under this Chapter. Those
communications include:
(a) the implementation and administration of this Chapter;
(b) issues related to the development, adoption or application of standards, technical regulations, or conformity
assessment procedures, under this Chapter or the TBT Agreement;
(c) the exchange of information on standards, technical regulations, or conformity assessment procedures;
(d) the exchange of information pursuant to Article 7.6.9 (Conformity Assessment) and to Articles 7.7.6 through
7.7.8 and Article 7.7.11 (Transparency); and
(e) joint cooperation by the Parties, pursuant to Article 7.4.
3. A Contact Point is responsible for communication with the relevant institutions and persons in its territory as
necessary to carry out its functions. The Contact Points may communicate in writing, electronically, by
video-conferencing, or other means decided by the Parties.
Annex 7-A: Icewine
A Party shall permit wine to be labeled as “Icewine”, “ice wine”, “ice-wine” or a
similar variation of these terms, only if the wine is made exclusively from grapes naturally frozen on the vine.
Chapter 8: Electronic commerce
Article 8.1: Definitions
For the purposes of this Chapter:
delivered electronically means delivered through telecommunications, alone or in conjunction with other
information and communication technologies; and
telecommunications means the transmission and reception of signals by any electromagnetic means.
Article 8.2: Customs Duties on Products Delivered
Electronically
1. A Party shall not apply a customs duty, fee or charge on a product
delivered electronically.
2. For greater certainty, paragraph 1 does not preclude a Party from imposing internal taxes or other internal
charges on products delivered electronically, provided that such taxes or charges are imposed in a manner
consistent with this Agreement.
Article 8.3: Relation to Other Chapters
In the event of an inconsistency between this Chapter and another Chapter of this Agreement, the other Chapter prevails to the extent of the inconsistency.
Chapter 9: Competition policy, monopolies and state enterprises
Article 9.1: Definitions
For the purposes of this Chapter:
designate means a decision by a Party to establish, authorize, or expand the scope of a monopoly to cover
an additional good or service, after the date of entry into force of this Agreement;
government monopoly means a monopoly owned or controlled through ownership interests by the national
government of a Party or by another such monopoly;
in accordance with commercial considerations means consistent with normal business practices of a
privately held enterprise in the relevant business sector or industry;
market means the geographic and product market for a good or service;
monopoly means an entity, designated by a Party, including a consortium or government agency, that
in any relevant market in the territory of a Party is the sole provider or purchaser of a good or service,
but does not include an entity that has been granted an exclusive intellectual property right solely by
reason of such grant;
non-discriminatory treatment means the better of national treatment or most-favoured-nation treatment
as set out in the relevant provisions of this Agreement; and
state enterprise means an enterprise owned or controlled through ownership interests by a Party,
except as set out in Annex 9-A.
Article 9.2: Competition Policy
1. For the purposes of this Article, “anti-competitive business conduct”
means anti-competitive agreements, concerted practices or arrangements by competitors, anti-competitive
practices by an enterprise that is dominant in a market, and mergers with substantial anti-competitive effects.
2. The Parties recognize that anti-competitive business conduct has the potential to distort the proper
functioning of markets and therefore agree that anti-competitive business conduct is incompatible with the
proper functioning of this Agreement in so far as it may affect trade between the Parties.
3. Each Party shall adopt or maintain measures to proscribe anti-competitive business conduct and take
appropriate action with respect to that conduct. To this end, the Parties shall, upon request of a Party,
discuss the effectiveness of measures undertaken by each Party. In its request, the requesting Party shall
indicate how the matter affects trade between the Parties.
4. The measures each Party adopts or maintains to proscribe anti-competitive business conduct and the
enforcement actions it takes pursuant to those measures shall be consistent with principles of transparency,
non-discrimination and procedural fairness. Exclusions from these measures shall be transparent. Each Party
shall make available to the other Party public information concerning such exclusions provided under its
competition legislation.
5. The Parties recognize the importance of cooperation, with the aim of putting an end to anti-competitive
business conduct and its adverse effects on trade. The Parties may conduct such cooperation through their competent
authorities. Cooperation shall, as necessary, include communication of information between the Parties unless such
communication is confidential under the legislation of the Party providing the information.
6. Each Party shall maintain its independence in developing and enforcing its competition law.
7. This Article is not subject to any form of dispute settlement under this Agreement.
Article 9.3: Monopolies
1. This Agreement does not prevent a Party from maintaining or designating
a monopoly.
2. If a Party intends to designate a monopoly and the designation may affect the interests of a person of
the other Party, the designating Party shall, whenever possible, provide prior written notification of the
designation to the other Party.
3. Each Party shall ensure that a privately owned monopoly that it designates or a government monopoly
that it maintains or designates:
(a) acts in a manner that is consistent with the Party's obligations under this Agreement whenever the
monopoly exercises regulatory, administrative, or other governmental authority that the Party has delegated
to it in connection with the monopoly good or service, such as the power to grant an import or export licence,
approve a commercial transaction, or impose a quota, fee or other charge;
(b) acts solely in accordance with commercial considerations in its purchase or sale of the monopoly
good or service in the relevant market, including with regard to price, quality, availability, marketability,
transportation and other terms and conditions of purchase or sale, except to comply with the terms of its
designation that are consistent with subparagraph (c) or (d);
(c) provides non-discriminatory treatment in its purchase or sale of the monopoly good or service in the
relevant market; and
(d) does not use its monopoly position to directly or indirectly engage in anti-competitive practices
in a non-monopolized market in its territory that adversely affects the other Party, including through the
monopoly’s dealings with its parent, its subsidiary or an enterprise with common ownership.
4. Paragraph 3 does not apply to procurement by a governmental agency of a good or service for governmental
purposes and not with a view to commercial resale or with a view to use in the production of a good or the provision
of a service for commercial sale.
5. For greater certainty, “purchase or sale of the monopoly good or service in the relevant market” in
paragraph 3 refers to the sale of the designated monopoly good or service in the case of a designated monopoly
supplier and to the purchase of the designated monopoly good or service in the case of a designated monopoly
buyer.
Article 9.4: State Enterprises
1. This Agreement does not prevent a Party from maintaining or establishing
a state enterprise.
2. Each Party shall ensure that a state enterprise that it maintains or establishes acts in a manner that is
consistent with the Party's obligations whenever the enterprise exercises a regulatory, administrative or other
governmental authority that the Party has delegated to it, such as the power to expropriate, grant a licence,
approve a commercial transaction or impose a quota, fee or other charge.
3. Each Party shall ensure that a state enterprise that it maintains or establishes accords non-discriminatory
treatment in the sale of the state enterprise’s good or service to an enterprise in the Party’s territory that is
owned or controlled, directly or indirectly, by the other Party, or a national or enterprise of the other Party.
Annex 9-A: Country-Specific Definitions of State Enterprises
For the purposes of Article 9.4.3 “state enterprise”, with respect to Canada,
means a Crown corporation within the meaning of the Financial Administration Act, R.S.C., 1985,
c. F-11 (Canada), a Crown corporation within the meaning of comparable provincial legislation or an equivalent
entity that is incorporated under other applicable provincial legislation.
Chapter 10: Government procurement
Article 10.1: Definitions
For the purposes of this Chapter:
commercial goods or services means goods or services of a type generally sold or offered for sale in the
commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes;
construction service means a service that has as its objective the realization by whatever means of civil or
building works, based on Division51 of the United Nations Provisional Central Product Classification (CPC);
days means calendar days;
electronic auction means an iterative process that involves the use of electronic means for the presentation
by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the
evaluation criteria, or both, resulting in a ranking or re-ranking of tenders;
in writing or written means any worded or numbered expression that can be read, reproduced and later
communicated. It may include electronically transmitted and stored information;
limited tendering means a procurement method whereby the procuring entity contacts a supplier or suppliers
of its choice;
measure means any law, regulation, procedure, administrative guidance or practice, or any action of a
procuring entity relating to a covered procurement;
multi-use list means a list of suppliers that a procuring entity has determined satisfy the conditions for
participation in that list, and that the procuring entity intends to use more than once;
notice of intended procurement means a notice published by a procuring entity inviting interested suppliers
to submit a request for participation, a tender, or both;
offset means any condition or undertaking that encourages local development or improves a Party’s
balance-of-payments accounts, such as the use of domestic content, the licensing of technology, investment,
counter-trade and similar action or requirement;
open tendering means a procurement method whereby all interested suppliers may submit a tender;
procuring entity means an entity covered under Annex10-1 or10-2 of a Party’s Market Access Schedule
for this Chapter;
qualified supplier means a supplier that a procuring entity recognizes as having satisfied the
conditions for participation;
selective tendering means a procurement method whereby only qualified suppliers are invited by the
procuring entity to submit a tender;
services includes construction services, unless otherwise specified;
standard means a document approved by a recognized body that provides for common and repeated use,
rules, guidelines or characteristics for goods or services, or related processes and production methods,
with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols,
packaging, marking or labelling requirements as they apply to a good, service, process or production method;
supplier means a person or group of persons that provides or could provide goods or services; and
technical specification means a requirement that:
(i) lays down the characteristics of a good or a service to be procured, including quality, performance,
safety and dimensions, or the processes and methods for their production or provision; or
(ii) addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a
good or a service.
Article 10.2: Scope and Coverage
Application of this Chapter
1. This Chapter applies to any measure regarding covered procurement, whether or not it is conducted
exclusively or partially by electronic means.
2. For the purposes of this Chapter, covered procurement means procurement for governmental purposes:
(a) of a good, a service or any combination thereof:
(i) as specified in each Party’s Annexes to its Market Access Schedule for this Chapter; and
(ii) not procured with a view to commercial sale or resale, or for use in the production or supply
of a good or a service for commercial sale
(b) by any contractual means, including: purchase; lease; and rental or hire purchase, with or without
an option to buy;
(c) for which the value, as estimated in accordance with paragraphs6 through8, equals or exceeds the
relevant threshold specified in a Party’s Annexes to its Market Access Schedule for this Chapter, at
the time of publication of a notice in accordance with Article10.7;
(d) by a procuring entity; and
(e) that is not otherwise excluded from coverage in paragraph 3 or a Party’s Annexes to this Chapter.
3. Unless otherwise provided in a Party’s Annexes to its Market Access Schedule for this Chapter, this
Chapter does not apply to:
(a) the acquisition or rental of land, existingbuildings or other immovable property or the rights thereon;
(b) non-contractual agreements or any form of assistance that a Party provides, including cooperative
agreements, grants, loans, equity infusions, guarantees and fiscal incentives;
(c) the procurement or acquisition of fiscal agency or depository services, liquidation and management
services for regulated financial institutions or services related to the sale, redemption and distribution
of public debt, including loans and government bonds, notes and other securities;
(d) public employment contracts;
(e) procurement conducted:
(i) for the specific purpose of providing international assistance, including development aid;
(ii) under the particular procedure or condition of an international agreement relating to the
stationing of troops or relating to the joint implementation by the signatory countries of a project;
or
(iii) under the particular procedure or condition of an international organization, or funded by
international grants, loans or other assistance if the applicable procedure or condition would be
inconsistent with this Chapter.
4. Each Party shall specify the following information in its Annexes to its Market Access Schedule
for this Chapter:
(a) in Annex10-1, the central government entities whose procurement is covered by this Chapter;
(b) in Annex10-2, all other entities whose procurement is covered by this Chapter;
(c) in Annex 10-3, the goods covered by this Chapter;
(d) in Annex10-4, the services, other than construction services, covered by this Chapter;
(e) in Annex10-5, the construction services covered by this Chapter;
(f) in Annex10-6, any General Notes;
(g) in Annex 10-7-, the threshold adjustment formulas;
(h) in Annex 10-8, the extended transparency commitments; and
(i) in Annex 10-9, the means of publication used for this Chapter.
5. If a procuring entity, in the context of covered procurement, requires a person not covered under a
Party’s Annexes to its Market Access Schedule for this Chapter to procure in accordance with particular
requirements, Article 10.5 shall apply, as applicable and with such changes as may be necessary, to such
requirements.
Valuation
6. In estimating the value of a procurement for the purpose of ascertaining whether it is a covered
procurement, a procuring entity shall:
(a) neither divide a procurement into separate procurements nor select or use a particular valuation
method for estimating the value of a procurement with the intention of totally or partially excluding
it from the application of this Chapter; and
(b) include the estimated maximum total value of the procurement over its entire duration, whether
awarded to one or more suppliers, taking into account all forms of remuneration, including:
(i) premiums, fees, commissions and interest; and
(ii) if the procurement provides for the possibility of options, the total value of such options.
7. If an individual requirement for a procurement results in the award of more than one contract,
or in the award of contracts in separate parts (recurring contracts), the calculation of the estimated
maximum total value shall be based on:
(a) the value of recurring contracts of the same type of good or service awarded during the preceding
12months or the procuring entity’s preceding fiscal year, adjusted, where possible, to take into account
anticipated changes in the quantity or value of the good or service being procured over the following
12months; or
(b) the estimated value of recurring contracts of the same type of good or service to be awarded
during the 12months following the initial contract award or the procuring entity’s fiscal year.
8. In the case of procurement by lease, rental or hire purchase of a good or a service, or procurement
for which a total price is not specified, the basis for valuation shall be:
(a) in the case of a fixed-term contract:
(i) if the term of the contract is 12months or less, the total estimated maximum value for its duration;
or
(ii) if the term of the contract exceeds 12months, the total estimated maximum value, including any
estimated residual value;
(b) if the contract is for an indefinite period, the estimated monthly instalment multiplied by 48; and
(c) if it is not certain whether the contract is to be a fixed-term contract, subparagraph(b) shall be used.
Article 10.3: Relationship with the Revised Agreement
on Government Procurement
1. At any time during which both Parties to this Agreement are also Party
to the Annex to the Protocol Amending the Agreement on Government Procurement (GPA), the operation
of Articles 10.1, 10.2 and 10.4 to 10.18 is suspended and the GPA, with the exception of Articles V, XVI(4)
to XVI(6), XIX, XX, XXI, XXII, is hereby incorporated into and made part of this Agreement, as applicable
and with such changes as may be necessaryas long as the Parties are also Parties to the GPA.The provisions
of the GPA incorporated into this Chapter shall apply to the Parties’ Annexes to their Market Access Schedule
for this Chapter.
2. Any amendments to the provisions of the GPA that are incorporated into this Chapter pursuant to paragraph 1
are incorporated into this Agreement, except as agreed by the Parties.
Article 10.4: Security and General Exceptions
1. Nothing in this Chapter shall be construed to prevent a Party from taking
any action or from not disclosing any information that it considers necessary for the protection of its essential
security interests relating to procurement:
(a) of arms, ammunition or war materials;
(b) indispensable for national security; or
(c) indispensable for national defence purposes.
2. Subject to the requirement that these measures are not applied in a manner that would constitute a means of
arbitrary or unjustifiable discrimination between Parties where the same conditions prevail or a disguised
restriction on international trade, nothing in this Chapter shall be construed to prevent a Party fromimposing
or enforcing measures:
(a) necessary to protect public morals, order or safety;
(b) necessary to protect human, animal or plant life or health;
(c) necessary to protect intellectual property; or
(d) relating to goods or services of persons with disabilities, philanthropic institutions or prison labour.
Article 10.5: General Principles
Non-Discrimination
1. With respect to any measure regarding covered procurement, each Party, including its procuring entities,
shall accord immediately and unconditionally to the goods and services of the other Party and to the suppliers
of the other Party offering these goods or services, treatment no less favourable than the treatment the Party,
including its procuring entities, accords to its own goods, services and suppliers.
2. With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall
not:
(a) treat a locally established supplier less favourably than another locally established supplier on the
basis of the degree of foreign affiliation or ownership; or
(b) discriminate against a locally established supplier on the basis that the goods or services offered by
that supplier for a particular procurement are goods or services of the other Party.
Use of Electronic Means
3. If conducting covered procurement by electronic means, a procuring entity shall:
(a) ensure that the procurement is conducted using information technology systems and software, including
those related to authentication and encryption of information, that are generally available and interoperable
with other generally available information technology systems and software; and
(b) maintain mechanisms that ensure the integrity of requests for participation and tenders, including
establishment of the time of receipt and the prevention of inappropriate access.
Conduct of Procurement
4. A procuring entity shall conduct covered procurement in a transparent and impartial manner that:
(a) is consistent with this Chapter, using methods such as open tendering, selective tendering and limited
tendering;
(b) avoids conflicts of interest; and
(c) prevents corrupt practices.
Rules of Origin
5. For the purposes of covered procurement, a Party shall not apply rules of origin to goods or services
imported from or supplied from the other Party that are different from the rules of origin the Party applies
at the same time in the normal course of trade to imports or supplies of the same goods or services from the
same Party.
Offsets
6. With regard to covered procurement, a Party, including its procuring entities, shall not seek, take account
of, impose or enforce any offset.
Measures Not Specific to Procurement
7. Paragraphs1and2 shall not apply to: customs duties and charges of any kind imposed on, or in connection with,
importation; the method of levying such duties and charges; other import regulations or formalities and measures
affecting trade in services other than measures governing covered procurement.
Article 10.6: Information on the Procurement System
1. Each Party shall:
(a) promptly publish any law, regulation, judicial decision, administrative ruling of general application,
standard contract clause mandated by law or regulation and incorporated by reference in notices or tender
documentation and procedure regarding covered procurement, and any modifications thereof, in an officially
designated electronic or paper medium that is widely disseminated and remains readily accessible to the
public; and
(b) provide an explanation thereof to the other Party, on request.
2. Each Party shall list, in Annex 10-9 of its Market Access Schedule:
(a) the electronic or paper media in which the Party publishes the information described in paragraph1;
(b) the electronic or paper media in which the Party publishes the notices required by Articles 10.7, 10.9.7
and 10.16.2; and
(c) the website address or addresses where the Party publishes procurement statistics.
3. Each Party shall promptly notify the Joint Commission of any modification to the Party’s information listed
in Annex 10-9.
Article 10.7: Notices
Notice of Intended Procurement
1. For each covered procurement, a procuring entity shall publish a notice of intended procurement in the
appropriate paper or electronic medium listed in Annex10-9, except in the circumstances described in Article10.13.
This medium shall be widely disseminated and those notices shall remain readily accessible to the public, at least
until expiration of the time-period indicated in the notice.
2. The notices of intended procurement shall:
(a) for procuring entities covered under Annex 10-1, be accessible by electronic means free of charge through a
single point of access, for at least any minimum period of time specified in Annex 10-9; and
(b) for procuring entities covered under Annex 10-2, if accessible by electronic means, be provided, at least,
through links in a gateway electronic site that is accessible free of charge.
Parties, including their procuring entities covered under Annex 10-2, are encouraged to publish their notices by
electronic means free of charge through a single point of access.
3. Except as otherwise provided in this Chapter, each notice of intended procurement shall include:
(a) the name and address of the procuring entity and other information necessary to contact the procuring entity
and obtain all relevant documents relating to the procurement, and their cost and terms of payment, if any;
(b) a description of the procurement, including the nature and the quantity of the goods or services to be procured
or, if the quantity is not known, the estimated quantity;
(c) for recurring contracts, an estimate, if possible, of the timing of subsequent notices of intended procurement;
(d) a description of any options;
(e) the time-frame for delivery of goods or services or the duration of the contract;
(f) the procurement method that will be used and whether it will involve negotiation or electronic auction;
(g) if applicable, the address and any final date for the submission of requests for participation in the
procurement;
(h) the address and the final date for the submission of tenders;
(i) the language or languages in which tenders or requests for participation may be submitted, if they may be
submitted in a language other than an official language of the Party of the procuring entity;
(j) a list and brief description of any conditions for participation of suppliers, including any requirements
for specific documents or certifications to be provided by suppliers in connection therewith, unless such
requirements are included in tender documentation that is made available to all interested suppliers at the
same time as the notice of intended procurement;
(k) if, pursuant to Article10.9, a procuring entity intends to select a limited number of qualified suppliers
to be invited to tender, the criteria that will be used to select them and, if applicable, any limitation on
the number of suppliers that will be permitted to tender; and
(l) an indication that the procurement is covered by this Chapter.
Summary Notice
4. For each case of intended procurement, a procuring entity shall publish a summary notice that is readily
accessible, at the same time as the publication of the notice of intended procurement, in one or more of the
following languages: Ukrainian, English or French. The summary notice shall contain at least the following
information:
(a) the subject-matter of the procurement;
(b) the final date for the submission of tenders or, if applicable, any final date for the submission of
requests for participation in the procurement or for inclusion on a multi-use list; and
(c) the address from which documents relating to the procurement may be requested.
Notice of Planned Procurement
5. Procuring entities are encouraged to publish in the appropriate paper or electronic medium listed in
Annex 10-9 as early as possible in each fiscal year a notice regarding their future procurement plans (notice
of planned procurement). The notice of planned procurement should include the subject-matter of the procurement
and the planned date of the publication of the notice of intended procurement.
6. A procuring entity covered under Annex 10-2 may use a notice of planned procurement as a notice of intended
procurement provided that the notice of planned procurement includes as much of the information referred to in
paragraph3 as is available to the entity and a statement that interested suppliers should express their interest
in the procurement to the procuring entity.
Article 10.8: Conditions for Participation
1. A procuring entity shall limit any conditions for participation in a
procurement to those that are essential to ensure that a supplier has the legal and financial capacities and
the commercial and technical abilities to undertake the relevant procurement.
2. In establishing the conditions for participation, a procuring entity:
(a) shall not impose the condition that, in order for a supplier to participate in a procurement, the
supplier has previously been awarded one or more contracts by a procuring entity of a Party; and
(b) may require relevant prior experience if essential to meet the requirements of the procurement.
3. In assessing whether a supplier satisfies the conditions for participation, a procuring entity:
(a) shall evaluate the financial capacity and the commercial and technical abilities of a supplier on the
basis of that supplier’s business activities both inside and outside the territory of the Party of the
procuring entity; and
(b) shall base its evaluation on the conditions that the procuring entity has specified in advance in notices
or tender documentation.
4. If there is supporting evidence, a procuring entity may exclude a supplier from participating in a
procurement on grounds such as:
(a) bankruptcy;
(b) false declarations;
(c) significant or persistent deficiencies in performance of any substantive requirement or obligation
under a prior contract or contracts;
(d) final judgments in respect of serious crimes or other serious offences;
(e) professional misconduct or acts or omissions that adversely reflect on the commercial integrity of
the supplier; or
(f) failure to pay taxes.
Article 10.9: Qualification of Suppliers
Registration Systems and Qualification Procedures
1.A procuring entity may maintain a supplier registration system under which interested suppliers are
required to register and provide certain information.
2. Each Party shall ensure that:
(a) its procuring entities make efforts to minimize differences in their qualification procedures; and
(b) if its procuring entities maintain registration systems, the entities make efforts to minimize
differences in their registration systems.
3. A procuring entity shall not adopt or apply a registration system or qualification procedure with the
purpose or the effect of creating unnecessary obstacles to the participation of suppliers of the other
Party in its procurement.
Selective Tendering
4. If a procuring entityintends to use selective tendering, the entity shall:
(a) include in the notice of intended procurement at least the information specified in Article10.7.3(a),
(b), (f), (g), (j), (k) and (l) and invite suppliers to submit a request for participation; and
(b) provide, by the commencement of the time-period for tendering, at least the information in Article10.7.3(c),
(d), (e), (h) and (i) to the qualified suppliers that it notifies as specified in Article10.11:.3(b).
5. A procuring entity shall allow all qualified suppliers to participate in a particular procurement, unless
the procuring entity states in the notice of intended procurement any limitation on the number of suppliers
that will be permitted to tender and the criteria for selecting the limited number of suppliers.
6. If the tender documentation is not made publicly available from the date of publication of the notice
referred to in paragraph4, a procuring entity shall ensure that those documents are made available at the
same time to all the qualified suppliers selected in accordance with paragraph5.
Multi-Use Lists
7. A procuring entity may maintain a multi-use list of suppliers, provided that a notice inviting interested
suppliers to apply for inclusion on the list is:
(a) published annually; and<
(b) if published by electronic means, made available continuously, in the appropriate medium listed in Annex 10-9.
8. The notice provided for in paragraph7 shall include:
(a) a description of the goods or services, or categories thereof, for which the list may be used;
(b) the conditions for participation to be satisfied by suppliers for inclusion on the list and the methods that
the procuring entity will use to verify that a supplier satisfies the conditions;
(c) the name and address of the procuring entity and other information necessary to contact the entity and obtain
all relevant documents relating to the list;
(d) the period of validity of the list and the means for its renewal or termination, or where the period of
validity is not provided, an indication of the method by which notice will be given of the termination of use of
the list; and
(e) an indication that the list may be used for procurement covered by this Chapter.
9. Notwithstanding paragraph7, if a multi-use list will be valid for three years or less, a procuring entity may
publish the notice referred to in paragraph7 only once, at the beginning of the period of validity of the list,
provided that the notice:
(a) states the period of validity and that further notices will not be published; and
(b) is published by electronic means and is made available continuously during the period of its validity.
10. A procuring entity shall allow suppliers to apply at any time for inclusion on a multi-use list and shall
include on the list all qualified suppliers within a reasonably short time.
11. If a supplier that is not included on a multi-use list submits a request for participation in a procurement
based on a multi-use list and all required documents, within the time-period provided for in Article10.11.2, a
procuring entity shall examine the request. The procuring entity shall not exclude the supplier from consideration
in respect of the procurement on the grounds that the entity has insufficient time to examine the request, unless,
in exceptional cases, due to the complexity of the procurement, the entity is not able to complete the examination
of the request within the time-period allowed for the submission of tenders.
Procuring Entities of Annex10-2
12. A procuring entity covered under Annex 10-2 may use a notice inviting suppliers to apply for inclusion on
a multi-use list as a notice of intended procurement, provided that:
(a) the notice is published in accordance with paragraph 7 and includes the information required under paragraph8,
as much of the information required under 10.7.3 as is available and a statement that it constitutes a notice of
intended procurement or that only the suppliers on the multi-use list will receive further notices of procurement
covered by the multi-use list; and
(b) the entity promptly provides to suppliers that have expressed an interest in a given procurement to the entity,
sufficient information to permit them to assess their interest in the procurement, including all remaining information
required in Article10.7.3, to the extent such information is available.
13. A procuring entity covered under Annex 10-2may allow a supplier that has applied for inclusion on a multi-use
list in accordance with paragraph10 to tender in a given procurement, if there is sufficient time for the procuring
entity to examine whether the supplier satisfies the conditions for participation.
Information on Procuring Entity Decisions
14. A procuring entity shall promptly inform any supplier that submits a request for participation in a procurement
or application for inclusion on a multi-use list of the procuring entity’s decision with respect to the request or
application.
15. If a procuring entity rejects a supplier’s request for participation in a procurement or application for inclusion
on a multi-use list, ceases to recognize a supplier as qualified, or removes a supplier from a multi-use list, the
entity shall promptly inform the supplier and, on request of the supplier, promptly provide the supplier with a
written explanation of the reasons for its decision.
Article 10.10: Technical Specifications and Tender Documentation
Technical Specifications
1. A procuring entity shall not prepare, adopt or apply any technical specification or prescribe any conformity assessment
procedure with the purpose or the effect of creating unnecessary obstacles to international trade.
2. In prescribing the technical specifications for the goods or services being procured, a procuring entity shall, if
appropriate:
(a) set out the technical specification in terms of performance and functional requirements, rather than design or
descriptive characteristics; and
(b) base the technical specification on international standards, where such exist; otherwise, on national technical
regulations, recognized national standards or building codes.
3. Where design or descriptive characteristics are used in the technical specifications, a procuring entity should
indicate, if appropriate, that it will consider tenders of equivalent goods or services that demonstrably fulfil the
requirements of the procurement by including words such as “or equivalent” in the tender documentation.
4. A procuring entity shall not prescribe technical specifications that require or refer to a particular trademark
or trade name, patent, copyright, design, type, specific origin, producer or supplier, unless there is no other
sufficiently precise or intelligible way of describing the procurement requirements and provided that, in such cases,
the entity includes words such as “or equivalent” in the tender documentation.
5. A procuring entity shall not seek or accept, in a manner that would have the effect of precluding competition,
advice that may be used in the preparation or adoption of any technical specification for a specific procurement
from a person that may have a commercial interest in the procurement.
6. For greater certainty, a Party, including its procuring entities, may prepare, adopt or apply technical
specifications to promote the conservation of natural resources or protect the environment, provided that it
does so in accordance with this Article.
Tender Documentation
7. A procuring entity shall make available to suppliers tender documentation that includes all information
necessary to permit suppliers to prepare and submit responsive tenders. Unless already provided in the notice
of intended procurement, this documentation shall include a complete description of:
(a) the procurement, including the nature and the quantity of the goods or services to be procured or, if the
quantity is not known, the estimated quantity and any requirements to be fulfilled, including any technical
specifications, conformity assessment certification, plans, drawings or instructional materials;
(b) any conditions for participation of suppliers, including a list of information and documents that suppliers
are required to submit in connection with the conditions for participation;
(c) all evaluation criteria the entity will apply in the awarding of the contract, and, except where price is
the sole criterion, the relative importance of those criteria;
(d) if the procuring entity will conduct the procurement by electronic means, any authentication and encryption
requirements or other requirements related to the submission of information by electronic means;
(e) if the procuring entity will hold an electronic auction, the rules, including identification of the elements
of the tender related to the evaluation criteria, on which the auction will be conducted;
(f) if there will be a public opening of tenders, the date, time and place for the opening and, if appropriate,
the persons authorized to be present;
(g) any other terms or conditions, including terms of payment and any limitation on the means by which tenders
may be submitted, such as whether on paper or by electronic means; and
(h) any dates for the delivery of goods or the supply of services.
8. In establishing any date for the delivery of goods or the supply of services being procured, a procuring
entity shall take into account such factors as the complexity of the procurement, the extent of subcontracting
anticipated and the realistic time required for production, de-stocking and transport of goods from the point
of supply or for supply of services.
9. The evaluation criteria set out in the notice of intended procurement or tender documentation may include,
among others, price and other cost factors, quality, technical merit, environmental characteristics and terms
of delivery.
10. A procuring entity shall promptly:
(a) make available tender documentation to ensure that interested suppliers have sufficient time to submit
responsive tenders;
(b) provide, on request, the tender documentation to any interested supplier; and
(c) reply to any reasonable request for relevant information by any interested or participating supplier,
provided that such information does not give that supplier an advantage over other suppliers.
Modifications
11. If, prior to the award of a contract, a procuring entity modifies the criteria or requirements set out
in the notice of intended procurement or tender documentation provided to participating suppliers, or amends
or re-issues a notice or tender documentation, it shall transmit in writing all such modifications, or the
amended or re-issued notice or tender documentation:
(a) to all suppliers that are participating at the time of the modification, amendment or re-issuance, where
such suppliers are known to the entity, and in all other cases, in the same manner as the original information
was made available; and
(b) in adequate time to allow such suppliers to modify and re-submit amended tenders, as appropriate.
Article 10.11: Time-Periods
General
1. A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for suppliers
to prepare and submit requests for participation and responsive tenders, taking into account such factors as:
(a) the nature and complexity of the procurement;
(b) the extent of subcontracting anticipated; and
(c) the time necessary for transmitting tenders by non-electronic means from foreign as well as domestic points
where electronic means are not used.
These time-periods, including any extension of the time-periods, shall be the same for all interested or
participating suppliers.
Deadlines
2. A procuring entity that uses selective tendering shall establish that the final date for the submission of
requests for participation shall not, in principle, be less than 25days from the date of publication of the notice
of intended procurement. If a state of urgency duly substantiated by the procuring entity renders this time-period
impracticable, the time-period may be reduced to not less than 10days.
3. Except as provided for in paragraphs4,5, 7 and 8 a procuring entity shall establish that the final date for
the submission of tenders shall not be less than 40days from the date on which:
(a) in the case of open tendering, the notice of intended procurement is published; or
(b) in the case of selective tendering, the entity notifies suppliers that they will be invited to submit tenders,
whether or not it uses a multi-use list.
4. A procuring entity may reduce the time-period for tendering established in accordance with paragraph3 to not
less than 10days where:
(a) the procuring entity has published a notice of planned procurement as described in Article10.7.5 at least
40 days and not more than 12months in advance of the publication of the notice of intended procurement, and the
notice of planned procurement contains:
(i) a description of the procurement;
(ii) the approximate final dates for the submission of tenders or requests for participation;
(iii) a statement that interested suppliers should express their interest in the procurement to the procuring
entity;
(iv) the address from which documents relating to the procurement may be obtained; and
(v) as much of the information that is required for the notice of intended procurement under Article10.7.3,
as is available;
(b) the procuring entity, for contracts of a recurring nature, indicates in an initial notice of intended
procurement that subsequent notices will provide time-periods for tendering based on this paragraph ;or
(c) a state of urgency duly substantiated by the procuring entity renders the time-period for tendering
established in accordance with paragraph 3 impracticable.
5. A procuring entity may reduce the time-period for tendering established in accordance with paragraph 3
by five days for each one of the following circumstances:
(a) the notice of intended procurement is published by electronic means;
(b) all the tender documentation is made available by electronic means from the date of the publication
of the notice of intended procurement; and
(c) the entity accepts tenders by electronic means.
6. The use of paragraph5, in conjunction with paragraph4, shall in no case result in the reduction of the
time-period for tendering established in accordance with paragraph 3 to less than 10days from the date on
which the notice of intended procurement is published.
7. Notwithstanding any other provision in this Article, if a procuring entity purchases commercial goods
or services, or any combination thereof, it may reduce the time-period for tendering established in accordance
with paragraph 3 to not less than 13days, provided that it publishes by electronic means, at the same time,
both the notice of intended procurement and the tender documentation. In addition, if the entity accepts
tenders for commercial goods or services by electronic means, it may reduce the time-period established in
accordance with paragraph3 to not less than 10 days.
8. If a procuring entity covered under Annex 10-2 has selected all or a limited number of qualified suppliers,
the time-period for tendering may be fixed by mutual agreement between the procuring entity and the selected
suppliers. In the absence of agreement, the period shall not be less than 10 days.
Article 10.12: Negotiation
1. A Party may provide for its procuring entities to conduct negotiations:
(a) if the entity has indicated its intent to conduct negotiations in the notice of intended procurement; or
(b) if it appears from the evaluation that no tender is obviously the most advantageous in terms of the
specific evaluation criteria set out in the notice of intended procurement or tender documentation.
2. A procuring entity shall:
(a) ensure that any elimination of suppliers participating in negotiations is carried out in accordance
with the evaluation criteria set out in the notice of intended procurement or tender documentation; and
(b) if negotiations are concluded, provide a common deadline for the remaining participating suppliers
to submit any new or revisedtenders.
Article 10.13: Limited Tendering
1. Provided that it does not use this provision for the purpose of
avoiding competition among suppliers or in a manner that discriminates against suppliers of the other
Party or protects domestic suppliers, a procuring entity may use limited tendering and may choose not to
apply Articles 10.7 through 10.9, paragraphs 7 through 11 of Article 10.10, Articles 10.11, 10.12, 10.14
and 10.15 only under any of the following circumstances:
(a) if:
(i) no tenders were submitted or no suppliers requested participation;
(ii) no tenders that conform to the essential requirements of the tender documentation were submitted;
(iii) no suppliers satisfied the conditions for participation; or
(iv) the tenders submitted have been collusive, provided that the requirements of the tender documentation
are not substantially modified;
(b) if the goods or services can be supplied only by a particular supplier and no reasonable alternative
or substitute goods or services exist for any of the following reasons:
(i) the requirement is for a work of art;
(ii) the protection of patents, copyrights or other exclusive rights; or
(iii) due to an absence of competition for technical reasons;
(c) for additional deliveries by the original supplier of goods or services that were not included in the
initial procurement if a change of supplier for such additional goods or services:
(i) cannot be made for economic or technical reasons such as requirements of interchangeability or
interoperability with existing equipment, software, services or installations procured under the initial
procurement; and
(ii) would cause significant inconvenience or substantial duplication of costs for the procuring entity;
(d) only when necessary if, for reasons of extreme urgency brought about by events unforeseeable by the
procuring entity, the goods or services could not be obtained in time using open tendering or selective
tendering;
(e) for goods purchased on a commodity market;
(f) if a procuring entity procures a prototype or a first good or service that is developed at its request
in the course of, and for, a particular contract for research, experiment, study or original development.
Original development of a first good or service may include limited production or supply in order to
incorporate the results of field testing and to demonstrate that the good or service is suitable for
production or supply in quantity to acceptable quality standards, but does not include quantity production
or supply to establish commercial viability or to recover research and development costs;
(g) for purchases made under exceptionally advantageous conditions that only arise in the very short term
in the case of unusual disposals such as those arising from liquidation, receivership or bankruptcy, but not
for routine purchases from regular suppliers; or
(h) if a contract is awarded to a winner of a design contest provided that:
(i) the contest has been organized in a manner that is consistent with the principles of this Chapter, in
particular relating to the publication of a notice of intended procurement; and
(ii) the participants are judged by an independent jury with a view to a design contract being awarded to
a winner.
2. A procuring entity shall prepare a report in writing on each contract awarded under paragraph1. The
report shall include the name of the procuring entity, the value and kind of goods or services procured
and a statement indicating the circumstances and conditions described in paragraph1 that justified the
use of limited tendering.
Article 10.14: Electronic Auctions
If a procuring entity intends to conduct a covered procurement using an
electronic auction, the entity shall provide each participant, before commencing the electronic auction,
with:
(a) the automatic evaluation method, including the mathematical formula, that is based on the evaluation
criteria set out in the tender documentation and that will be used in the automatic ranking or re-ranking
during the auction;
(b) the results of any initial evaluation of the elements of its tender if the contract is to be awarded
on the basis of the most advantageous tender; and
(c) any other relevant information relating to the conduct of the auction.
Article 10.15: Treatment of Tenders and Awarding
of Contracts
Treatment of Tenders
1. A procuring entity shall receive, open and treat all tenders under procedures that guarantee the fairness
and impartiality of the procurement process, and the confidentiality of tenders.
2. A procuring entity shall not penalize any supplier whose tender is received after the time specified for
receiving tenders if the delay is due solely to mishandling on the part of the procuring entity.
3. If a procuring entity provides a supplier with an opportunity to correct unintentional errors of form
between the opening of tenders and the awarding of the contract, the procuring entity shall provide the same
opportunity to all participating suppliers.
Awarding of Contracts
4. To be considered for an award, a tender shall be submitted in writing and shall, at the time of opening,
comply with the essential requirements set out in the notices and tender documentation and be from a supplier
that satisfies the conditions for participation.
5. Unless a procuring entity determines that it is not in the public interest to award a contract, the entity
shall award the contract to the supplier that the entity has determined to be capable of fulfilling the terms
of the contract and that, based solely on the evaluation criteria specified in the notices and tender documentation,
has submitted:
(a) the most advantageous tender; or
(b) if price is the sole criterion, the lowest price.
6. If a procuring entity receives a tender with a price that is abnormally lower than the prices in other tenders
submitted, it may verify with the supplier that it satisfies the conditions for participation and is capable of
fulfilling the terms of the contract.
7. A procuring entity shall not use options, cancel a procurement or modify awarded contracts in a manner that
circumvents the obligations under this Chapter.
Article 10.16: Transparency of Procurement Information
Information Provided to Suppliers
1. A procuring entity shall promptly inform participating suppliers of the entity’s contract award decisions and,
on the request of a supplier, shall do so in writing. Subject to paragraphs 2 and 3 of Articles10.17, a procuring
entity shall, on request, provide an unsuccessful supplier with an explanation of the reasons why the entity did
not select its tender and the relative advantages of the successful supplier’s tender.
Publication of Award Information
2. In accordance with domestic legislation, a procuring entity shall publish a notice in the appropriate paper or
electronic medium listed in Annex 10-9 promptly after the award of each contract covered by this Chapter. If the
entity publishes the notice only in an electronic medium, the information shall remain readily accessible for a
reasonable period of time. The notice shall include at least the following information:
(a) a description of the goods or services procured;
(b) the name and address of the procuring entity;
(c) the name and address of the successful supplier;
(d) the value of the successful tender or the highest and lowest offers taken into account in the award of the
contract;
(e) the date of award; and
(f) the type of procurement method used, and in cases where limited tendering was used in accordance with Article
10.13, a description of the circumstances justifying the use of limited tendering.
Maintenance of Documentation, Reports and Electronic Traceability
3. Each procuring entity shall, for a period of at least threeyears from the date it awards a contract, maintain:
(a) the documentation and reports of tendering procedures and contract awards relating to covered procurement,
including the reports required under Article10.13; and
(b) data that ensure the appropriate traceability of the conduct of covered procurement by electronic means.
Article 10.17: Disclosure of Information
Provision of Information to Parties
1. On request of the other Party, a Party shall provide promptly any information necessary to determine
whether a procurement was conducted fairly, impartially and in accordance with this Chapter, including
information on the characteristics and relative advantages of the successful tender. In cases where release
of the information would prejudice competition in future tenders, the Party that receives the information
shall not disclose it to any supplier, except after consulting with, and obtaining the consent of, the Party
that provided the information.
Non-Disclosure of Information
2. Notwithstanding any other provision of this Chapter, a Party, including its procuring entities, shall not
provide to any particular supplier information that might prejudice fair competition between suppliers.
3. Nothing in this Chapter shall be construed to require a Party, including its procuring entities, authorities
and review bodies, to disclose confidential information if disclosure:
(a) would impede law enforcement;
(b) might prejudice fair competition between suppliers;
(c) would prejudice the legitimate commercial interests of particular persons, including the protection of
intellectual property; or
(d) would otherwise be contrary to the public interest.
Article 10.18: Domestic Review Procedures
1. Each Party shall provide a timely, effective, transparent and
non-discriminatory administrative or judicial review procedure through which a supplier may challenge:
(a) a breach of the Chapter; or
(b) if the supplier does not have a right to challenge directly a breach of the Chapter under the
domestic law of a Party, a failure to comply with a Party’s measures implementing this Chapter,
arising in the context of a covered procurement, in which the supplier has, or has had, an interest.
The procedural rules for allchallenges shall be in writing and made generally available.
2. In the event of a complaintby a supplier, arising in the context of covered procurement in which
the supplier has, or has had, an interest, that there has been a breach or a failure as referred to
in paragraph 1, the Party of the procuring entity conducting the procurement shall encourage the
entity and the supplier to seek resolution of the complaint through consultations. The entity shall
accord impartial and timely consideration to any such complaint in a manner that is not prejudicial
to the supplier’s participation in ongoing or future procurement or its right to seek corrective
measures under the administrative or judicial review procedure.
3. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge,
which in no case shall be less than 10 days from the time when the basis of the challenge became
known or reasonably should have become known to the supplier.
4. Each Party shall establish or designate at least one impartial administrative or judicial authority
that is independent of its procuring entities to receive and review a challengeby a supplier arising
in the context of a covered procurement.
5. If a body other than an authority referred to in paragraph4 initially reviews a challenge, the
Party shall ensure that the supplier may appeal the initial decision to an impartial administrative
or judicial authority that is independent of the procuring entity whose procurement is the subject
of the challenge.
6. Each Party shall ensure that a review body that is not a court shall have its decision subject to
judicial review or have procedures that provide that:
(a) the procuring entity shall respond in writing to the challenge and disclose all relevant
documents to the review body;
(b) the participants to the proceedings (participants) shall have the right to be heard prior to a
decision of the review body being made on the challenge;
(c) the participants shall have the right to be represented and accompanied;
(d) the participants shall have access to all proceedings;
(e) the participants shall have the right to request that the proceedings take place in public and
that witnesses may be presented; and
(f) the review body shall make its decisions or recommendations in a timely fashion, in writing,
and shall include an explanation of the basis for each decision or recommendation.
7. Each Party shall adopt or maintain procedures that provide for:
(a) rapid interim measures to preserve the supplier’s opportunity to participate in the procurement.
Such interim measures may result in suspension of the procurement process. The procedures may provide
that overriding adverse consequences for the interests concerned, including the public interest, may
be taken into account when deciding whether such measures should be applied. Just cause for not acting
shall be provided in writing; and
(b) corrective action or compensation for the loss or damages suffered, which may be limited to either
the costs for the preparation of the tender or the costs relating to the challenge, or both, if a review
body has determined that there has been a breach or a failure as referred to in paragraph 1.
Article 10.19: Modifications and rectifications to
coverage
1. A Party may modify an Annex to this Chapter.
2. When a Party modifies an Annex to this Chapter, the Party shall:
(a) notify the other Party in writing; and
(b) include in the notification a proposal of appropriate compensatory adjustments to the other Party to
maintain a level of coverage comparable to that existing prior to the modification.
3. Notwithstanding paragraph 2(b), a Party is not required to provide compensatory adjustments if:
(a) the modification in question is a minor adjustment or rectification of a purely formal nature; or
(b) the proposed modification covers an entity over which the Party has effectively eliminated its control
or influence.
4. If the other Party disputes that:
(a) an adjustment proposed under paragraph 2(b) is adequate to maintain a comparable level of mutually
decided coverage;
(b) the proposed modification is a minor adjustment or a rectification under paragraph 3(a); or
(c) the proposed modification covers an entity over which the Party has effectively eliminated its
control or influence under paragraph 3(b),
it shall object in writing within 30 days of receipt of the notification referred to in paragraph 2(a)
or be deemed to have accepted the adjustment or proposed modification, including for the purposes of
Chapter 17 (Dispute Settlement).
Chapter 11: Intellectual property
Article 11.1: Objectives
The objectives of this Chapter are to:
(a) maintain a balance between the rights of intellectual property right holders and the legitimate
interests of intellectual property users with regard to intellectual property;
(b) facilitate international trade and economic, social and cultural development through the
dissemination of ideas, technology and creative works; and
(c) facilitate the enforcement of intellectual property rights with a view, among other things,
to eliminating trade in goods infringing intellectual property rights.
Article 11.2: Affirmation of International
Agreements
1. The Parties affirm their rights and obligations under the WTO
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and other
intellectual property agreements to which both Parties are party.
2. The Parties confirm that the TRIPS Agreement can and should be interpreted and implemented in a
manner supportive of WTO Members’ right to protect public health and, in particular, to promote
access to medicines for all. In this regard, the Parties affirm the right to fully avail themselves
of the flexibilities established in the TRIPS Agreement, including those related to the protection
of public health and in particular the promotion of access to medicines for all. The Parties take
note of the WTO’s General Council Decision on the Implementation of Paragraph 6 of the Doha
Declaration on the TRIPS Agreement and Public Health of 30 August 2003 and the Protocol
amending the TRIPS Agreement adopted 6 December 2005.
Article 11.3: Protection of Geographical
Indications
1. This Article concerns the protection in each of the Parties of
geographical indications of wines and spirits originating in the territory of the other Party.
2. Part A of Annex I contains geographical indications originating and protected in Canada. The
terms listed in Part A of Annex I are eligible for registration as protected geographical indications
in Ukraine.
3. Part B of Annex I contains geographical indications originating and protected in Ukraine. The
terms listed in Part B of Annex I are eligible for registration as protected geographical indications
in Canada.
4. In order to secure protection, the authorities responsible for particular geographical indications
in each Party shall apply for registration for protection in the territory of the other Party, in
accordance with the procedures and requirements prescribed by the law of the other Party. The protection
by each Party of these geographical indications shall be in accordance with Articles 22 through 24 of
the TRIPS Agreement and subject to the exceptions provided in Article 24 of the TRIPS Agreement.
5. Each Party may adopt or maintain procedures that provide for the cancellation of the protection
afforded to a geographical indication within its territory.
6. If a geographical indication of a Party listed in Annex I ceases to be protected in the territory
of its place of origin or falls into disuse in that place, that Party shall notify the other Party and
request cancellation of the registration.
7. In accordance with the procedure established in paragraph 9, the Joint Commission established under
Article 16.1 (Joint Commission) may amend Annex I by removing a geographical indication of a wine or
spirit which has ceased to be protected, or has fallen into disuse in Canada from Part A, or a geographical
indication of a wine and spirit which has ceased to be protected, or has fallen into disuse in Ukraine
from Part B.
8. In accordance with the procedure established in paragraph 9, the Joint Commission may amend Annex I
by adding a geographical indication of a wine or spirit originating and protected in Canada to Part A,
and a geographical indication of a wine or a spirit originating and protected in Ukraine to Part B.
9. The Joint Commission, when exercising its powers of paragraph 7 or 8, shall act by consensus and on
a recommendation by the Committee on Intellectual Property established under Article 11.12.
Article 11.4: Enforcement of Intellectual
Property Rights
1. Each Party shall ensure that enforcement procedures are available
under its legislation so as to permit effective action against any act of infringement of intellectual
property rights 1, including
expeditious remedies to prevent infringements and remedies which constitute a deterrent to further
infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers
to legitimate trade and to provide for safeguards against their abuse.
2. Procedures concerning the enforcement of intellectual property rights shall be fair and equitable.
They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted
delays.
Article 11.5: Criminal Procedures
Each Party shall provide for criminal procedures and penalties to be applied at least in cases of
wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall
include either imprisonment or monetary fines or both, sufficient to provide a deterrent, consistent
with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies
available shall also include the seizure, forfeiture and destruction of the infringing goods and any
materials or implements the predominant use of which has been in the commission of the offence. Each
Party ay provide for criminal procedures and penalties to be applied in other cases of infringement
of intellectual property rights, in particular when they are committed wilfully and on a commercial
scale.
Article 11.6: Camcording
1. Each Party shall provide for criminal procedures and penalties
to be applied in accordance with that Party’s laws and regulations for the unauthorised copying of
a cinematographic work, or any part thereof, from a performance in a movie theatre.
2. For an offence specified in paragraph 1, each Party shall provide penalties that include imprisonment
as well as monetary fines 2 sufficiently
high to provide a deterrent against future acts of infringement, consistent with the level of penalties
applied for crimes of a corresponding gravity.
Article 11.7: Special Measures Against Copyright
Infringers on the Internet or other Digital Networks
1. Each Party’s civil and criminal enforcement procedures shall apply to
infringement of copyright or related rights on the Internet or other digital networks, which may include
the unlawful use of means of widespread distribution for infringing purposes.
2. A Party may provide its competent authorities, in accordance with its law, with the authority to order
an online service provider to disclose expeditiously to a right holder information sufficient to identify a
subscriber whose account was allegedly used for infringement, if that right holder has filed a legally
sufficient claim for copyright or related rights infringement, and if that information is being sought for
the purpose of protecting or enforcing those rights.
3. Each Party shall endeavour to promote cooperative efforts within the business community to effectively
address copyright or related rights infringement while preserving legitimate competition and, consistent
with that Party’s domestic law, preserving fundamental principles such as freedom of expression, fair process,
and privacy.
4. Each Party shall adopt or maintain measures to curtail copyright and related right infringement on the
Internet or other digital network.
5. Each Party shall implement the procedures referred to in this Article in a manner that avoids the creation
of barriers to legitimate activity, including electronic commerce and, consistent with that Party’s law,
preserves fundamental principles such as freedom of expression, fair process, and privacy.
3
Article 11.8: Special Requirements Related to Border
Measures
1. For the purposes of this Article, goods infringing an intellectual property
right mean counterfeit trademark goods or pirated copyright goods as defined in footnote 14 of Article 51 of
the TRIPS Agreement.4
2. Each Party shall permit its competent authorities to request that right holder supply relevant information to
assist in taking the border measures referred to in this Article. A Party may also allow a right holder to supply
relevant information to its competent authorities.
3. Each Party shall adopt or maintain procedures with respect to import and export shipments
5 under which its competent authorities may
act upon their own initiative to suspend the release of, or to detain, goods suspected of infringing an intellectual
property right.
4. Each Party shall adopt or maintain procedures with respect to import and export shipments under which a right
holder may request the competent authorities of the Party providing the procedures to suspend the release of, or
to detain, goods suspected of infringing an intellectual property right.
5. Each Party may provide that, if the applicant has abused the procedures described in this Article or if there
is due cause, that Party’s competent authorities have the authority to deny, suspend, or void the application.
6. Each Party shall adopt or maintain procedures by which its competent authorities may determine, within a
reasonable period of time after the initiation of the procedures described in paragraph 3 or 4, if the goods
suspected of infringing an intellectual property right infringe an intellectual property right.
7. Each Party may exclude from the application of this Article small quantities of goods of a non-commercial
nature contained in travellers’ personal luggage or sent in small consignments.
Article 11.9: Cooperation on Enforcement of Intellectual
Property Rights
1. The Parties recognize the challenges related to the enforcement of intellectual
property rights, particularly in trans-border contexts. The Parties shall endeavour to cooperate, as appropriate,
to stem the economic and social costs of trade-mark counterfeiting and copyright piracy in accordance with each
Party’s law.
2. Each Party shall endeavour to encourage the development of expertise for the enforcement of intellectual
property rights. The Parties shall also endeavour to exchange information and share best practices in areas of
mutual interest relating to the enforcement of intellectual property rights in accordance with each Party’s
domestic law.
3. The Parties’ respective competent authorities may cooperate, as appropriate, to better identify and target
the inspection of shipments suspected of containing certain counterfeit trademark or pirated copyright, and, in
doing so, endeavour to:
(a) share information on innovative approaches that may be developed to provide greater analytical targeting
of shipments that could contain counterfeit or pirated goods; and
(b) share information and intelligence regarding shipments of suspected counterfeit trademark or pirated copyright
goods in appropriate cases.
Article 11.10: Other Areas of Cooperation
Recognizing the growing importance of intellectual property rights in promoting
innovation, social, economic, and cultural development, as well as economic competitiveness in a knowledge based
economy, the Parties endeavour to cooperate, subject to availability of resources, in the field of intellectual
property in areas of mutual interest.
Article 11.11: Designation of Contact Points
Each Party shall designate a Contact Point to facilitate communications between
the Parties on intellectual property, and shall notify the other Party of the Contact Point and any changes to the
Contact Point.
Article 11.12: Committee on Intellectual Property
1. The Parties hereby establish a Committee on Intellectual Property (Committee)
composed of representatives of each Party with expertise in intellectual property.
2. The Committee shall be co-chaired by a representative of each Party.
3. The Committee shall:
(a) discuss topics relevant to the protection and enforcement of intellectual property rights covered by this
Chapter, and any other relevant issue as mutually decided by the Parties;
(b) provide a forum for consultations pursuant to Article 11.15;
(c) oversee the Parties’ cooperation under this Chapter; and
(d) make any recommendation to the Joint Commission established under Article 16.1 (Joint Commission) to amend
Annex I pursuant to Article 11.3.9.
4. The Parties shall endeavour to increase opportunities for cooperation in the field of intellectual property.
This cooperation may include:
(a) promoting the development of contacts among the Parties’ respective competent authorities that have an
interest in the field of intellectual property;
(b) exchanging information on:
(i) each Party’s legislation, procedures, policies, activities, and experiences in the field of intellectual
property,
(ii) the implementation of intellectual property systems aimed at promoting the efficient registration of
intellectual property rights, and
(iii) appropriate initiatives to promote public awareness of intellectual property rights.
5. With the exception of consultations pursuant to Article 11.15, the Committee shall meet as mutually decided
by the Parties. Committee meetings may be held in person, by videoconference, by telephone, or by other means.
Article 11.13: Transparency
With the aim of making the protection and enforcement of intellectual property
rights transparent, each Party shall ensure that its laws, regulations, and procedures concerning intellectual
property rights are published or otherwise made available in a manner that enables the other Party or any
interested person to become acquainted with them.
Article 11.14: Disclosure of Information
This Chapter does not require a Party to disclose information that would impede
law enforcement, be contrary to its law, or that is exempt from disclosure under its law.
Article 11.15: Consultations
1. Either Party may request consultations with the other Party regarding any
actual or proposed measure, or any other matter which that Party considers might negatively affect intellectual
property interests.
2. Upon a request pursuant to paragraph 1, the Parties shall consult each other within the framework of the
Committee established under Article 11.12 to consider ways of reaching a mutually satisfactory solution. In doing
so, each Party shall:
(a) endeavour to provide sufficient information to enable a full examination of the matter; and
(b) maintain the confidentiality of the information provided by the other Party in the course of consultations.
3. Consultations within the framework of the Committee shall be conducted within 60 days following the request
for consultations.
4. If the Parties are unable to reach a mutually satisfactory solution pursuant to the consultations under
paragraph 2, either Party may refer the matter to the Joint Commission established under Article 16.1 (Joint
Commission).
Article 11.16: Dispute Settlement
A Party shall not have recourse to dispute settlement under Chapter 17
(Dispute Settlement) for any matter arising under this Chapter.
Annex I - List of Wines and Spirits Eligible for Protection as
Geographical Indications in the Territory of the Parties
Part A - Geographical Indications of Canada
(a) For wines:
BC Gulf Islands
Beamsville Bench
British Columbia
Creek Shores
Fraser Valley
Four Mile Creek
Lake Erie North Shore
Lincoln Lakeshore
Niagara Escarpment
Niagara Lakeshore
Niagara Peninsula
Niagara River
Niagara-on-the-Lake
Okanagan Valley
Ontario
Ontario Icewine
Prince Edward County
Similkameen Valley
Short Hills Bench
St. David’s Bench
Twenty Mile Bench
Vancouver Island
Vinemount Ridge
(b) For Spirits
Canadian Rye Whisky
Canadian Whisky
Part B - Geographical Indications of Ukraine
(a) For wines:
Tavriya
Sonyachna dolyna
Novyisvit
Meganom
Magarach
Zolota Balka
Balaklava
(b) For spirits:
Chapter 12: Environment
Article 12.1: Definitions
1. For the purposes of this Chapter:
Committee means the Committee on the Environment established by Article 12.16;
environmental laws means any statute or regulation of a Party or provisions thereof, including legally
binding instruments thereunder, the primary purpose of which is the protection of the environment, or the
prevention of a danger to human life or health, through:
(a) the prevention, abatement or control of the release, discharge or emission of pollutants or environmental
contaminants;
(b) the management of chemicals and waste and the dissemination of information related thereto; or
(c) the conservation and protection of wild flora or wild fauna, including endangered species, their habitat
and specially protected natural areas;
but does not include any statute or regulation, or any provision thereof, directly related to worker health and
safety, and does not include any statute or regulation, or any provision thereof, of which the primary purpose is
managing the commercial harvest or exploitation, or subsistence or aboriginal harvesting, of natural resources;
province means a province of Canada, and includes Yukon, the Northwest Territories and Nunavut; and
Review Panel means a panel established pursuant to 12.21.9.
2. For the purposes of this Chapter, a Party has not failed to “effectively enforce its environmental laws”
in a particular case if the action or inaction in question by an agency or official of that Party:
(a) reflects a reasonable exercise of their discretion in respect of investigatory, prosecutorial, regulatory or
compliance matters; or
(b) results from a bona fide decision to allocate resources to enforcement in respect of other environmental
matters determined to have a higher priority.
Article 12.2: Context and Objectives
1. The Parties recognize that each Party has sovereign rights to conserve and
protect its environment and sustainably manage its natural resources. They affirm their environmental obligations
under their law, as well as their international obligations under multilateral environmental agreements to which
they are a party.
2. The Parties further recognize the mutual supportiveness between trade and environmental policies and the need to
implement this Agreement in a manner consistent with environmental protection and conservation.
Article 12.3: Levels of Protection
Recognizing the right of each Party to set its own environmental priorities, to
establish its own levels of environmental protection and to adopt or modify its environmental laws and policies
accordingly, each Party shall strive to ensure that those laws and policies provide for and encourage high levels
of environmental protection and shall strive to continue to improve them and their underlying levels of protection.
Article 12.4: Compliance With and Enforcement of Environmental
Laws
1. A Party shall not fail to effectively enforce its environmental laws, through a
sustained or recurring course of action or inaction, in a manner that affects trade or investment between the Parties.
2. Each Party shall ensure that violations of its environmental laws can be remedied or sanctioned under its law
through judicial, quasi-judicial or administrative proceedings.
Article 12.5: Non-derogation
Each Party recognizes that it is inappropriate to encourage trade or investment
by weakening or reducing the level of protection afforded in its environmental laws. Accordingly, a Party shall
not waive, or otherwise derogate from, or offer to waive or otherwise derogate from, its environmental laws, in
a manner that weakens or reduces the protections afforded in those laws, to encourage trade or investment.
Article 12.6: Environmental Impact Assessment
1. Each Party shall maintain appropriate procedures for assessing the environmental
impacts of proposed projects which may cause significant adverse effects on the environment, with a view to avoiding
or minimizing such adverse effects.
2. Each Party shall ensure that its environmental assessment procedures provide for the disclosure of information
to the public concerning proposed projects subject to assessment and, in accordance with its law, shall allow for
public participation in such procedures.
Article 12.7: Public Awareness
Each Party shall promote public awareness of its environmental legislation by
ensuring that relevant information is available to the public, including information about enforcement and compliance
procedures.
Article 12.8: Private Access to Remedies
1. Each Party shall ensure that an interested person residing in or established in
its territory may request the Party’s competent authorities to investigate an alleged violation of its environmental
laws and shall give such a request due consideration, in accordance with its law.
2. Each Party shall provide a person with a legally recognized interest in a particular matter under its legislation
appropriate access to administrative, quasi-judicial or judicial proceedings for:
(a) the enforcement of the Party’s environmental laws; and
(b) seeking remedies for a violation of those laws.
Article 12.9: Procedural Guarantees
1. Each Party shall ensure that an administrative, quasi-judicial or judicial
proceeding referred to in Article 12.8.2 is fair, equitable and transparent and to this end shall ensure that
the proceeding:
(a) complies with due process of law;
(b) is open to the public, except if the administration of justice requires otherwise;
(c) entitles the parties to the proceeding to support or defend their respective positions and to present information
or evidence; and
(d) is not unnecessarily complicated and does not entail an unreasonable fee or time limit or an unwarranted delay.
2. Each Party shall provide that a final decision on the merits of the case in the proceeding is:
(a) in writing and, if appropriate, states the reasons on which the decision is based;
(b) made available without undue delay to the parties in the proceeding and, in accordance with its law, to the
public; and
(c) based on information or evidence presented by the parties to the proceeding.
3. Each Party shall further provide, as appropriate, that parties to the proceeding have the right, in accordance
with its law, to seek review and, if warranted, correction or redetermination, of a final decision in the proceeding.
4. Each Party shall ensure that a tribunal that conducts or reviews the proceeding is impartial and independent, and
does not have any substantial interest in the outcome of the matter.
Article 12.10: Corporate Social Responsibility
Recognizing the substantial benefits brought by international trade and investment,
each Party shall encourage voluntary best practices of corporate social responsibility by enterprises established in
its territory or subject to its jurisdiction, to strengthen coherence between economic and environmental objectives.
Article 12.11: Measures to Enhance Environmental Performance
1. The Parties recognize that flexible, voluntary and incentive-based measures can
contribute to the achievement and maintenance of a high level of environmental protection, complementing regulatory
measures under environmental laws. In accordance with its law and policy, each Party shall promote the development
and use of such measures.
2. In accordance with its law and policy, each Party shall promote the development, establishment, maintenance or
improvement of performance goals and standards used in measuring environmental performance.
Article 12.12: National Contact Point
Each Party shall designate an official within the appropriate agency or ministry
to serve as its National Contact Point and inform each other of this designation.
Article 12.13: Public Information and Accountability
1. An interested person residing in or established in the territory of either
Party may submit a written question to either Party through its National Contact Point, indicating that the
question is being submitted pursuant to this Article regarding a Party’s obligations under this Chapter.
2. The Party receiving the question shall acknowledge the question in writing, forward the question to the
appropriate authority and provide a response in a timely manner.
3. If an interested person submits a question to a Party that relates to the obligations of the other Party,
the Party that receives the question shall, in a timely manner, provide to the other Party a copy of the
question and its response referring the question to the other Party.
4. Each Party shall, in a timely manner, make publicly available all of the questions it receives and its
responses to those questions.
Article 12.14: Party-to-Party Information Exchange
A Party may notify the other Party of, and provide to that Party, any credible
information regarding a possible violation of, or failure to effectively enforce its environmental laws. This
information shall be specific and sufficient to allow the other Party to inquire into the matter. The notified
Party shall take appropriate steps to make inquiries, in accordance with its law, and to respond to the other
Party.
Article 12.15: Cooperative Activities
1. The Parties recognize that cooperation is an effective way to achieve the
objectives and fulfill the obligations of this Chapter. Accordingly, and subject to the availability of resources,
the Parties may develop programs of cooperative activities based on their respective priorities.
2. Each Party may involve the public, interested stakeholders and any other entity that the Party deems appropriate
in activities undertaken pursuant to this Article.
3. The Parties shall strive to strengthen their cooperation on environmental issues in other bilateral, regional
and multilateral forums in which they participate.
Article 12.16: Committee on the Environment
1. The Parties hereby establish a Committee on the Environment (Committee),
composed of senior representatives of each Party. The Committee shall:
(a) oversee and review the implementation of this Chapter, including any cooperative activity undertaken by the
Parties;
(b) discuss any matter of common interest; and
(c) perform any other function the Parties may decide.
2. The Committee shall meet for the first time no later than one year following the entry into force of this
Agreement and subsequently as mutually decided.
3. Canada shall notify the Committee of any declaration provided to Ukraine under paragraph 1 of Annex 12-B.
4. The Committee shall prepare a summary record of each meeting unless the Committee decides otherwise. The
Committee may prepare reports and recommendations on any activity or action related to the implementation of this
Chapter. A copy of these reports and recommendations shall be submitted to the Joint Commission for its consideration.
These reports may include recommendations to update Annex 1-A - Multilateral Environmental Agreements.
5. Summary records, reports and recommendations of the Committee meetings shall be made available to the public,
unless otherwise decided by the Parties.
Article 12.17: Review
1. The Committee shall consider undertaking a review of the implementation of this
Chapter, with a view to improving its operation and effectiveness, within five years of the date of the entry into
force of this Agreement.
2. The Committee may provide for the participation of the public and independent experts in the review process.
3. The Parties shall make the results of the review available to the public.
Article 12.18: Public Engagement
1. Each Party shall inform the public of activities, including meetings of the
Parties and cooperative activities, undertaken to implement this Chapter.
2. Each Party shall endeavour to engage the public, as appropriate, in activities undertaken to implement this Chapter.
Article 12.19: Disclosure of Information
This Chapter does not require a Party to release information that would be otherwise
prohibited or exempt from disclosure under its legislation, including those concerning access to information and privacy.
Article 12.20: Relation to Other Environmental Agreements
This Chapter does not affect the existing rights and obligations of either Party
under international environmental agreements.
Article 12.21: Dispute Resolution
1. The Parties shall at all times endeavour to agree on the interpretation and
application of this Chapter.
2. The Parties shall make every attempt, through consultations and cooperation, to address any matter that might
affect the operation of this Chapter.
3. Consultations, including at the Ministerial level, are confidential and without prejudice to the rights of
the Parties in any proceeding. Each Party shall ensure that information designated by either Party for treatment
as confidential information, in particular personal or commercial information, is protected.
4. A Party may request consultations with the other Party through the Committee regarding any matter arising
under this Chapter by delivering a written request to the National Contact Point of the other Party. The request
shall present the matter clearly, identify the question at issue and provide a brief summary of any claim under
this Chapter. Consultations shall commence promptly after a Party delivers a request for consultations.
5. During the consultations, each Party shall provide the other with information in its possession sufficient
to allow a full examination of the matters raised, subject to its legislation regarding access to information
and privacy.
6. If the Parties fail to resolve the matter pursuant to paragraph 4, the requesting Party may request
consultations with the other Party at the Ministerial level regarding any matter under this Chapter by delivering
a written request to the National Contact Point of the other Party. The Party receiving the request shall respond
expeditiously. Ministerial consultations shall be concluded within 120 days of a Party’s receipt of the request
unless the Parties decide on another date.
7. Following the conclusion of the Ministerial consultations, the requesting Party may request that a Review Panel
be convened to examine the matter if it considers that the consultations have not satisfactorily addressed the matter
by delivering a written request to the National Contact Point of the other Party.
8. Subject to the provisions of this Article, the Parties shall apply, as applicable and with such changes as may
be necessary, Article 17.10 (Rules of Procedure), Annex 17-C (Rules of Procedure) and the Code of Conduct adopted
pursuant to Article 17.9(e) (Qualification of Panellists), unless the Parties decide otherwise. If there is an
inconsistency between these referenced provisions and this Chapter, the provisions of this Chapter shall prevail.
9. A Review Panel shall be established upon receipt of a request by the National Contact Point referred to in
paragraph 7. Unless the Parties decide otherwise, the terms of reference of a Review Panel shall be: “To examine,
in light of the relevant provisions of Chapter 12 (Environment) of the Canada – Ukraine Free Trade Agreement, the
matter referred to in the request for the establishment of the Review Panel, and to issue a report making
recommendations for the resolution of the matter.” The procedures set out in Annex 12-A apply to the selection
of panellists for matters under this Chapter.
10. Unless the Parties decide otherwise, a Review Panel shall perform its functions according to Annex 17-C
(Rules of Procedure) and the Code of Conduct adopted pursuant to Article 17.9(e) (Qualification of Panellists),
as applicable and with such changes as may be necessary. Notwithstanding these referenced provisions, a Review
Panel shall ensure that:
(a) each Party has the opportunity to provide written and oral submissions to the Review Panel;
(b) a non-governmental organization, institution, or person in the territory of either Party with information
or expertise relevant to the matter at issue has the opportunity to provide written submissions to the Review
Panel; and
(c) at least one hearing is held before the panel for each set of Review Panel proceedings, which shall
be open to the public, subject to Article 12.21.3.
11. A Review Panel shall issue to the Parties an initial report and a final report, each setting out the
findings of fact, its determinations as to whether the responding Party has complied with its obligations
under this Chapter and the rationale behind any findings, determinations and recommendations that it makes.
12. A Review Panel shall submit the initial report to the Parties within 120 days of the date of selection
of the last panellist or within another time period decided by the Parties.
13. The Parties may provide comments to a Review Panel on the initial report within 45 days of its submission
to the Parties. After considering these comments, a Review Panel may reconsider its report or make any further
examination it considers appropriate.
14. A Review Panel shall submit the final report to the Parties within 60 days of the submission of the
initial report. Each Party shall make the final report publicly available within 30 days after it is submitted
to the Parties.
15. If in the final report a Review Panel determines that a Party has not complied with its obligations under
this Chapter, the Parties shall, within three months of the submission of that final report and taking into
account that report, endeavour to consent to a mutually satisfactory action plan to address the matter. Any
action plan developed by the Parties shall be made public without delay.
16. If the Parties reach a mutually agreed solution to a matter at any point after a Review Panel has been
established, they shall notify the Review Panel of the solution. Upon the Review Panel’s receipt of this
notification, the panel procedure shall be terminated.
17. At any time, the Parties may have recourse to means of alternative dispute resolution to resolve a matter,
including good offices, conciliation or mediation. Unless the Parties decide otherwise, alternative dispute
resolution is confidential and without prejudice to the rights of the Parties in any proceeding.
Article 12.22: Extent of Obligations
For Canada, the application of this Chapter to the provinces of Canada is
subject to Annex 12-B.
Annex 12-A: Panel Selection Procedures
1. A Review Panel shall be composed of three panellists, including a chair,
appointed by the Parties.
2. For the purposes of selecting a Review Panel, the following procedures shall apply:
(a) within 30 days of a Party’s receipt of the request to establish a Review Panel, each Party shall select one panellist;
(b) if one Party fails to select a panellist within the period referred to in subparagraph (a), the other Party shall
select the panellist from among qualified individuals who are nationals of the Party that failed to select its
panellist within a further seven days; and
(c) the following procedures shall apply to the selection of the chair:
(i) the Party that is the subject of the request shall provide the requesting Party with the names of three
qualified candidates. These names shall be provided within 30 days of a Party’s receipt of the request to
establish the Review Panel;
(ii) the requesting Party may choose one of the three candidates in sub-subparagraph (i) to be the chair or,
if no names were provided or none of the candidates are acceptable, provide the Party that is the subject of
the request with the names of three candidates who are qualified to be the chair. Those names shall be provided
no later than seven days after the receipt of names provided under sub-subparagraph (i) or 37 days after the
receipt of the request for the establishment of the Review Panel, whichever is earlier; and
(iii) the Party that is the subject of the request may choose one of the three candidates to be the chair within
seven days of receiving the names under sub-subparagraph (ii), failing which the chair shall be selected by lot
by the requesting Party from the six candidates proposed by the Parties pursuant to sub-subparagraphs (i) and
(ii) within a further seven days.
3. Panellists shall:
(a) be chosen based on their expertise in environmental matters or other appropriate disciplines, as well as on
their objectivity, reliability and sound judgment; and
(b) be independent of, and not be affiliated with or take instructions from, either Party.
4. If either Party believes that a panellist has violated the Code of Conduct adopted pursuant to Article 17.9(e)
(Qualification of Panellists), the Parties shall consult and, if they so decide, that panellist shall be removed
and a new panellist shall be selected in accordance with the procedures set out in this Annex. The applicable
time limit listed in Article 2 shall run from the date of their decision to remove the panellist.
5. An individual may not serve as a panellist for a review in which he or she, or a person or organization with
which he or she is affiliated, has an interest.
6. The chair shall not be a national of either Party.
Annex 12-B: Application to the Provinces of Canada
1. Following the entry into force of this Agreement, Canada shall provide to
Ukraine through diplomatic channels a written declaration indicating the provinces for which Canada is to be
bound by this Chapter in respect of matters within their jurisdiction. The declaration shall become effective
on its date of receipt by Ukraine.
2. Canada shall use its best efforts to make this Chapter applicable to as many provinces as possible.
3. Canada shall notify Ukraine six months in advance of any modification to its declaration.
4. Canada may not request information or send a notification under Article 12.14, or request consultations
under Article 12.21.4, at the instance of the government of a province not included in the declaration made
under paragraph 1.
Chapter 13: Labour
Article 13.1: Definitions
For the purposes of this Chapter:
labour law means laws and regulations that implement and protect the labour principles and rights
set out in Article 13.3;
persistent pattern means a sustained or recurring course of action or inaction beginning after the
date of entry into force of this Agreement, but does not include a single instance or case;
person means a natural person, an enterprise, or an organization of employers or workers;
province means a province of Canada, and includes the Yukon, the Northwest Territories, and Nunavut,
and their successors;
trade-related means related to trade or investment covered by this Agreement, provided that this term
shall not be interpreted as including the public sector.
Article 13.2: Shared Commitments
The Parties affirm their obligations as members of the International Labour
Organization (ILO) and their commitments to the ILO Declaration on Fundamental Principles and Rights at
Work and its Follow-Up of 1998, adopted by the International Labour Conference at its 86th Session (ILO
1998 Declaration), as well as the ILO Declaration on Social Justice for a Fair Globalization of 2008,
adopted by the International Labour Conference at its 97th Session (ILO 2008 Declaration).
Section A - Obligations
Article 13.3: General Commitments
1. Each Party shall ensure that its labour law and practices embody and
provide protection for the following internationally recognized labour principles and rights, particularly
bearing in mind their commitments as members of the ILO to the ILO 1998 Declaration:
(a) freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour and, for the purposes of this Chapter, a prohibition on the
worst forms of child labour;
(d) the elimination of discrimination in respect of employment and occupation;
(e) acceptable minimum employment standards, such as minimum wages and overtime pay, for wage earners,
including those not covered by collective agreements;
(f) the prevention of occupational injuries and illnesses, and compensation in cases of injuries or
illnesses; and
(g) non-discrimination in respect of working conditions for migrant workers.
2. To the extent that the principles and rights stated above relate to the ILO, paragraphs (a) to (d)
refer only to the ILO 1998 Declaration, whereas paragraphs (e), (f), and (g) refer to the ILO’s Decent
Work Agenda.
Article 13.4: Non-Derogation
A Party shall not, as a means to encourage trade or investment, waive
or otherwise derogate from, or offer to waive or otherwise derogate from, its labour law in a manner
that weakens or reduces adherence to the internationally recognized labour principles and rights referred
to in Article 13.3.
Article 13.5: Government Enforcement Action
1. Each Party shall, subject to Article 13.17, promote compliance with
and effectively enforce its labour law through appropriate government action, such as:
(a) establishing and maintaining an effective labour inspection regime, including by developing responsible
bodies and appointing and training inspectors;
(b) monitoring compliance and investigating suspected violations, including through on-site inspections;
(c) requiring record keeping and reporting;
(d) encouraging the establishment of worker-management committees to address the regulation of labour in
the workplace;
(e) providing or encouraging mediation, conciliation and arbitration services; and
(f) initiating, in a timely manner, proceedings to seek appropriate sanctions or remedies for violations
of its labour law.
2. Each Party shall ensure that its competent authorities give due consideration, in accordance with its
law, to any request by an employer, employee, or their representatives, or other interested person, for an
investigation of an alleged violation of that Party's labour law.
Article 13.6: Private Action
Each Party shall ensure that a person with a recognized interest under
its labour law in a particular matter has appropriate access to administrative or tribunal proceedings,
which can enforce and give effect to the rights protected by that law, including by granting effective
remedies for any breaches of that law.
Article 13.7: Procedural Guarantees
1. Each Party shall ensure that proceedings referred in Article 13.5.1(b),
Article 13.5.1(f) and Article 13.6 are fair, equitable and transparent, and to this end each Party
shall provide that:
(a) proceedings are conducted by decision-makers who are impartial and independent, and do not have an
interest in the outcome of the matter;
(b) parties to the proceedings are entitled to support or defend their respective positions, and to present
information or evidence;
(c) decisions are based on information or evidence presented by the parties to the proceedings and final
decisions on the merits of each case are in writing;
(d) proceedings are open to the public, except when the law and the administration of justice require
otherwise; and
(e) proceedings are free and expeditious, or at least do not entail unreasonable fees or delays, and the
time limits do not impede exercise of the rights.
2. Each Party shall provide that parties to these proceedings have the right, pursuant to its legislation,
to seek review and correction of decisions issued in these proceedings.
Article 13.8: Public Information and Awareness
1. Each Party shall ensure that its labour law, as well as regulations,
procedures and administrative rulings of general application respecting any matter covered by this Chapter
are promptly published or otherwise made available in a manner that enables any interested person and the
other Party to become acquainted with them.
2. When required by its law, each Party shall:
(a) publish in advance any measure that it proposes to adopt; and
(b) provide any interested person with a reasonable opportunity to comment on these proposed measures.
3. Each Party shall promote public awareness of its labour law, including by:
(a) ensuring the availability of public information related to its labour law and enforcement and
compliance procedures; and
(b) encouraging education of the public regarding its labour law.
Section B - Institutional Mechanisms
Article 13.9: Labour Ministerial Council
1. The Parties hereby establish a Labour Ministerial Council (Council)
composed of Ministers responsible for labour affairs of the Parties, or their designees.
2. The Council shall meet within the first year after the date of entry into force of this Agreement and
thereafter as often as it considers necessary, to discuss matters of common interest, and oversee the
implementation of, and review progress under, this Chapter. The Council may hold joint meetings with
other Councils established under similar agreements.
3. Unless the Parties decide otherwise, each meeting of the Council shall include a session during which
members of the Council have an opportunity to meet with the public to discuss matters relating to the
implementation of this Chapter.
4. The Council may consider any matter within the scope of this Chapter and take any other action in the
exercise of its functions, including:
(a) establishing and assigning responsibilities to committees, working groups, or expert groups; and
(b) seeking the advice of independent experts.
5. The Council shall review the operation and effectiveness of this Chapter, including the degree to which
progress has been made in implementing the objectives of this Chapter, within five years after the date of
entry into force of this Agreement and thereafter within any other period as may be decided by the Council.
Unless otherwise agreed, this review:
(a) shall be conducted by one or more independent experts subject to the availability of resources. The Parties
shall make every effort to decide on the selection of the expert or experts, and shall cooperate with the expert
or experts in the preparation of the report;
(b) shall include a literature review and consultation with the members of the public, including representatives
of labour and business organizations, as well as an opportunity for the Parties to provide comments;
(c) shall make recommendations for the future; and
(d) shall be concluded within 180 days of its commencement and made public 30 days thereafter.
Article 13.10: National Mechanisms
1. Each Party may convene a new, or consult an existing, national labour advisory
or consultative committee, composed of members of its public, including representatives of its labour and business
organizations, to provide views on any issue related to this Chapter.
2. Each Party shall establish an office or designate an existing office within its ministry responsible for labour
affairs that shall serve as a National Administrative Office (NAO), and provide to the other Party its contact
information through diplomatic channels.
3. The NAO shall serve as a point of contact with the other Party and perform the functions assigned by that Party
or the Council, as well as:
(a) coordinate cooperative programs and activities pursuant to Article 13.11;
(b) receive and review public communications pursuant to Article 13.12; and
(c) provide information to the other Party, a Review Panel established under Article 13.15, and the public.
Article 13.11: Cooperative Activities
1. The Parties may develop a plan of action for cooperative labour activities for
the promotion of the objectives of this Chapter. To the extent possible, those activities shall be linked to any
recommendation in any Council report referred to in Article 13.9. An indicative list of areas of possible cooperation
between the Parties is set out in Annex 13-A to this Chapter.
2. In carrying out the plan of action, the Parties may, commensurate with the
availability of resources, cooperate through:
(a) seminars, training sessions, working groups and conferences;
(b) joint research projects, including sector studies; and
(c) other means by which the Parties may decide.
3. The Parties shall carry out the cooperative activities with due regard to the differences that exist with respect
to each Party´s national conditions, circumstances and needs, including with respect to their economies, their social
and cultural traditions and their legal framework.
Article 13.12: Public Communications
1. Each Party shall provide for the submission and receipt of public communications
on labour law matters that:
(a) are raised by a national of the Party or by an enterprise or organization established in the territory of the Party;
(b) arise in the territory of the other Party; and
(c) pertain to any matter related to this Chapter.
2. Each Party shall review these matters, as appropriate, in accordance with domestic procedures, and notify the
public of communications accepted for review within 30 days of acceptance.
Article 13.13: General Consultations
1. The Parties shall at all times endeavour to come to an understanding on the
interpretation and application of this Chapter.
2. The Parties shall make every attempt, including through cooperation, consultations, and the exchange of
information, to address any matter that might affect the operation of this Chapter.
3. A Party may request consultations with the other Party regarding any matter arising under this Chapter by
delivering a written request to the NAO of the other Party.
4. If the Parties fail to resolve the matter, the requesting Party may use the procedures provided under
Article 13.14.
Section C - Procedures for Labour Consultations and Dispute
Settlement
Article 13.14: Ministerial Consultations
1. A Party may request, in writing, consultations with the other Party at the ministerial level regarding any
obligation under this Chapter. The Party that is the subject of the request shall respond within 60 days of
receipt of the request, or within any other period that the Parties may decide. The Parties shall be represented
by the Council established under Article 13.9.
2. To facilitate discussion of a matter under consideration and assist in arriving at a mutually satisfactory
resolution:
(a) each Party shall provide the other Party with sufficient information in its possession to allow a full
examination of the matter raised, subject to a requirement in its law regarding the confidentiality of personal
and commercial information; and
(b) each Party may call upon one or more independent experts to prepare a report on a matter referred to in
this Article. The Parties shall make every effort to decide on the selection of the expert or experts, and shall
cooperate with the expert or experts in the preparation of the report. Any report shall be made public within 60
days of its receipt by the Parties.
3. Ministerial consultations shall be concluded no later than 180 days after the receipt of the request unless
the Parties decide on another date.
Article 13.15: Establishment and Conduct of a Review
Panel
1. Following the conclusion of Ministerial Consultations, the Party that
requested the consultations may request, in writing, that a Review Panel be established if that Party considers
that:
(a) the matter is trade-related; and
(b) the other Party has failed to comply with an obligation under this Chapter through:
(i) a failure to comply with an obligation under Article 13.3 or Article 13.4 to the extent that they
refer to the ILO 1998 Declaration; or
(ii) a persistent pattern of failure to effectively enforce its labour law through appropriate government
action, private action, procedural guarantees, or public information and awareness.
2. Unless the Parties decide otherwise, a Review Panel composed of three independent experts, including
a chairperson who is not a national of either Party, shall be established in a manner consistent with the
criteria and procedures set out in Annex 13-B.
3. Unless the Parties decide otherwise, the Review Panel shall perform its functions in accordance with
the provisions of this Part, Annex 13-B and the Model Rules of Procedure to be established by the Parties
further to Annex 13-B.
The Review Panel:
(a) shall determine, within 30 days of confirmation of its terms of reference, whether the matter is
trade-related and cease its functions if it determines that the matter is not trade-related;
(b) shall provide the Parties with sufficient opportunity to make written and oral submissions to the
Review Panel;
(c) may consider written submissions and any other information sought or received from organizations,
institutions, the public and persons with relevant information or expertise; and
(d) shall hold proceedings that are open to the public, except to the extent necessary to protect
information in accordance with Article 13.19 and the Model Rules of Procedure.
Article 13.16: Review Panel Reports and
Determinations
1. The Review Panel shall present to the Parties a report that:
(a) makes findings of fact;
(b) addresses the submissions and arguments of the Parties and any relevant information considered pursuant
to Article 13.15.3(c);
(c) determines whether the Party that is the subject of the review has failed to comply with an obligation
under Article 13.3 or Article 13.4 to the extent that they refer to the ILO 1998 Declaration or a persistent
pattern of failure to effectively enforce its labour law through appropriate government action, private action,
procedural guarantees, public information and awareness, or any other determination requested in the terms of
reference; and
(d) makes a recommendation for resolution of any non-compliance determined under sub-paragraph (c), which
normally shall be that the Party that is the subject of the review adopt and implement an action plan sufficient
to remedy the pattern of non-compliance.
2. The Review Panel shall present its initial report to the Parties within 120 days after the last panellist
is selected unless the Review Panel extends the time period by up to a further 60 days or the Model Rules of
Procedure to be established by the Parties further to Annex 13-B provide otherwise. If the Review Panel extends
the time period, it shall first give written notice to both Parties setting out the reasons for the extension
of time.
3. Each Party may submit written comments to the Review Panel on its initial report within 30 days of
presentation of the report or within any other period as the Parties may decide. After considering these
written comments, the Review Panel, on its own initiative or at the request of either Party, may reconsider
its report and make any further examination that it considers appropriate.
4. The Review Panel shall present to the Parties a final report within 60 days of the presentation of the
initial report, unless the Parties decide otherwise. The final report shall be made public within 60 days of
its receipt by the Parties.
5. If, in the final report, a Review Panel determines that there has been non-compliance within the meaning
of sub-paragraph 1(c), the Parties may develop, within the following 90 days, or any longer period as they
may decide, a mutually satisfactory action plan to implement the Review Panel’s recommendations.
6. Following the expiry of the period set out in paragraph 5, if the Parties are unable to decide on an
action plan, or the Party that is the subject of the review is failing to adopt or implement the action
plan according to its terms, the requesting Party may request in writing that the Review Panel be reconvened
with a view to determining whether or not a monetary assessment needs to be set and paid in accordance with
Annex 13-C.
Section D - General Provisions
Article 13.17: Enforcement Principle
This Chapter does not empower a Party’s authorities to undertake any action
aiming at labour law enforcement in the territory of the other Party.
Article 13.18: Private Rights
A Party shall not provide for a right of action under its law against the
other Party on the ground that the other Party has acted in a manner inconsistent with this Chapter.
Article 13.19: Protection of Information
1. A Party that receives information identified by the other Party as
confidential or proprietary information shall protect such information as confidential or proprietary.
2. A Review Panel that receives confidential or proprietary information under this Chapter shall protect
it in accordance with the Model Rules of Procedure to be established by the Parties further to Annex 13-B.
Article 13.20: Cooperation with International and
Regional Organizations
The Parties may establish a cooperative arrangement with the ILO, or any
other competent international or regional organization to draw on their expertise and resources to achieve
the objectives of this Chapter.
Article 13.21: Review
The provisions of this Chapter shall be reviewed pursuant to Article 19.2
(Review Clause).
Annex 13-A: Cooperative Activities
1. The Parties have established the following indicative list of areas for
cooperative activities that they may develop pursuant to Article 13.11:
(a) information sharing: exchanging of information and sharing of best practices on issues of common interest
and on relevant events, activities, and initiatives organized in their respective territories;
(b) international forums: cooperation within international and regional forums such as the ILO on
labour-related issues;
(c) fundamental rights and their effective application: legislation and practice related to the core elements
of the ILO 1998 Declaration (freedom of association and the effective recognition of the right to collective
bargaining, the elimination of all forms of forced or compulsory labour, the effective abolition of child labour,
and the elimination of discrimination in respect of employment and occupation);
(d) worst forms of child labour: legislation and practice related to compliance with the ILO Convention
concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour
(No. 182), done at Geneva, on 17 June 1999;
(e) labour administration: institutional capacity of labour administrations and tribunals;
(f) labour inspectorates and inspection systems: methods and training to improve the level and efficiency of
labour law enforcement, strengthen labour inspection systems, and help ensure compliance with labour laws;
(g) labour relations: forms of cooperation and dispute resolution to ensure productive labour relations among
workers, employers, and governments;
(h) working conditions: mechanisms for supervising compliance with legislation pertaining to hours of work,
minimum wages and overtime, and employment conditions;
(i) occupational safety and health: prevention of occupational injuries and illnesses;
(j) gender: gender issues, including the elimination of discrimination in respect of employment and occupation;
(k) informal economy: facilitating transition from the informal to the formal economy; and
(l) any other matter that the Parties may decide.
2. In identifying areas for labour cooperation and capacity building, and in carrying out cooperative activities,
each Party may consider the views of its worker and employer representatives, as well as those of other members
of the public.
Annex 13-B: Procedures Related to Review Panels
Qualifications of Panellists
1. Each Panellist shall:
(a) be chosen on the basis of expertise in labour matters or other appropriate disciplines, objectivity,
reliability and sound judgment;
(b) be independent of, and not be affiliated with or take instructions from, either Party; and
(c) comply with a code of conduct to be established by the Parties pursuant to this Annex.
2. If either Party believes that a panellist is in violation of the Code of Conduct, the Parties shall consult
and, if they decide that the panellist shall be removed, a new panellist shall be selected in accordance with
the procedures set out in paragraph 4 or 5 that were used to select the panellist who was removed. The time
limits shall run from the date of the removal of the panellist. The Model Rules of Procedure may provide
procedures for resolving the situation if the Parties cannot decide.
3. Individuals shall not serve as panellists with respect to a review in which they have an interest, or if
a person or organization with which they are affiliated has an interest.
Review Panel Selection Procedures
4. For the purposes of selecting a panellist, the following procedures shall
apply:
(a) within 20 days of the receipt of the request for the establishment of a Review Panel under Article 13.15.1,
each Party shall select one panellist; and
(b) if one Party fails to select its panellist within this period, the other Party shall select the panellist
from among qualified individuals who are nationals of the Party that has failed to select its panellist.
5. For the purposes of selecting the chairperson, the following procedures shall apply:
(a) the Party that is the subject of the review shall provide the Party that made the request with the names of
three individuals who it considers to be qualified to be the chairperson. The names shall be provided no later
than 20 days after the receipt of the request for the establishment of the Review Panel under Article 13.15.1;
(b) the requesting Party may choose one of the individuals to be the chairperson or, if the names were not
provided or none of the individuals is acceptable, provide the Party that is the subject of the review with
the names of three individuals who it considers to be qualified to be the chairperson. Those names shall be
provided no later than five days after receiving the names under sub-paragraph (a) or 25 days after the
receipt of the request for the establishment of the Review Panel; and
(c) the Party that is the subject of the review may choose one of the three individuals to be the chairperson,
no later than five days after receiving the names under sub-paragraph (b), failing which either Party shall
immediately request the Director General of the International Labour Office to appoint a chairperson within
25 days.
Conduct of the Review Panel
6. The Parties shall, within one year after the date of entry into force of
this Agreement, establish Model Rules of Procedure, that shall be used for the establishment and conduct of
proceedings under Section C. The Model Rules of Procedure shall include a code of conduct for the purposes of
paragraph 1 and rules for the protection of information under Article 13.19.
7. The Parties shall determine a separate budget for each set of Review Panel proceedings under this Chapter.
The Parties shall contribute equally to the budget, unless they decide otherwise.
8. Unless the Parties decide otherwise, within 30 days of the establishment of the Review Panel, the terms of
reference shall be:
“To examine, in light of the relevant provisions of this Chapter, whether the Party that is the subject of
the request has, in a trade-related matter, failed to comply with its obligations under Article 13.3 or Article
13.4 to the extent that they refer to the ILO 1998 Declaration, or engaged in a persistent pattern of failure
to effectively enforce its labour law through appropriate government action, private action, procedural
guarantees, or public information and awareness, and to make a finding, determination, and recommendation
in accordance with paragraph 1 of Article 13.16.”
9. For a determination under Article 13.15.3(a) whether the matter is trade-related, the requesting Party has
the onus of establishing that the matter is trade-related. For a determination under Article 13.16.1(c) whether
the Party that is the subject of the request has failed to comply with its obligations, the requesting Party
has the onus of establishing that non-compliance, and its case may be supplemented by any other information
provided under Article 13.15.3(c).
10. A Review Panel shall not release the final report other than to the Parties. A Panellist may furnish a
separate opinion on a matter not unanimously agreed. A Review Panel, however, shall not disclose which panellists
are associated with a majority or minority opinion.
Annex 13-C: Monetary Assessments
1. The Review Panel shall reconvene as soon as possible after delivery of the
request pursuant to Article 13.16.6. Within 90 days after being reconvened, the Review Panel shall determine
whether the terms of the action plan have been implemented or the non-compliance remedied.
2. In the event of a negative determination under paragraph 1, and at the request of the requesting Party under
Article 13.16.6, the Review Panel shall provide a monetary assessment payable on an annual basis, that reflects a
determination of the estimated costs of implementing the action plan, or in the absence of an action plan, other
appropriate measures to remedy the non-compliance provided that:
(a) the Review Panel may adjust the assessment to reflect:
(i) any mitigating factors, such as good faith efforts made by the Party to begin remedying the non-compliance
after the final report of the Review Panel, good faith reasons for the Party’s failure to comply with its
obligations, or a real likelihood that the cost of the assessment would have a negative impact on vulnerable
members of society;
(ii) any aggravating factors, such as the pervasiveness and duration of the Party’s failure to comply with its
obligations; or
(iii) the Party’s national conditions, circumstances and needs; and
(b) in no circumstances shall the monetary assessment exceed $15 million U.S. dollars annually, or its equivalent
in the currency of the Party that is the subject of the review, adjusted to the rate of inflation of that Party.
3. Unless the Council decides otherwise, a monetary assessment shall be paid to the requesting Party. When the
circumstances warrant, the Council may decide that an assessment shall be paid into an interest-bearing account
designated by the Council and shall be expended at the direction of the Council to implement the action plan or
other appropriate measures.
4. After the expiry of 90 days from the date on which the Review Panel determines the amount of the monetary
assessment under paragraph 2, the requesting Party may provide the Party that is the subject of the review with
a notice in writing demanding payment of the monetary assessment. The monetary assessment shall be paid in equal
quarterly instalments, beginning 120 days after the requesting Party provides the notice, and ending upon a
decision of the Parties, or upon the date of any Review Panel determination under paragraph 5.
5. If the Party that is the subject of the review considers that it has eliminated the non-compliance, it may
refer the matter to the Review Panel by providing written notice to the requesting Party. The Review Panel shall
be reconvened within 60 days of that notice and issue its report within 90 days thereafter.
6. In Canada, the procedures for enforcement of the monetary assessment resulting from a Review Panel determination
under paragraph 2 shall be the following:
(a) Ukraine may file in a court of competent jurisdiction a certified copy of a Review Panel determination only if
Canada has failed to comply with the terms of a notice provided under paragraph 4 within 180 days of it being
provided;
(b) when filed, the Review Panel determination, for purposes of enforcement, shall become an order of the court;
(c) Ukraine may take proceedings for enforcement of a Review Panel determination that is made an order of the
court, in that court, against the person in Canada against whom the Review Panel determination is addressed in
accordance with paragraph 4 of Annex 13-D;
(d) proceedings to enforce a Review Panel determination that has been made an order of the court shall be
conducted in Canada by way of summary proceedings, provided that the court shall promptly refer any question
of fact or interpretation of the Review Panel determination to the Review Panel that made the determination,
and the decision of the Review Panel shall be binding on the court;
(e) a Review Panel determination that has been made an order of the court shall not be subject to domestic
review or appeal; and
(f) an order made by the court in proceedings to enforce a Review Panel determination that has been made an
order of the court shall not be subject to review or appeal.
7. If Ukraine has failed to comply with a notice provided under paragraph 4 within 180 days of it being
provided, the procedures for the enforcement of the monetary assessment resulting from a Review Panel
determination under paragraph 2 shall be executed in Ukraine as follows:
(a) Ukraine shall deem a Review Panel determination as a binding foreign arbitral award within the meaning
of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York, on
10 June 1958, and shall recognize and enforce it as such;
(b) a Review Panel determination shall be deemed to be the result of a valid arbitration agreement; and
(c) a competent Ukrainian court may refuse to recognize and enforce the Review Panel determination only
on the grounds provided for in this Chapter.
8. If a Party makes a change to its domestic procedures for enforcement under paragraph 6 or 7 that has
the effect of undermining the provisions of this Annex, that Party shall be considered to be in violation
of this Chapter.
Annex 13-D: Extent of Obligations
1. At the time of entry into force of this Agreement, Canada shall notify
Ukraine, through diplomatic channels, a written declaration with a list of any provinces for which Canada
is to be bound in respect of matters within their jurisdiction. The declaration shall be effective on the
date of receipt by Ukraine, and shall carry no implication as to the internal distribution of powers within
Canada. Canada shall notify Ukraine of any modification to its declaration, which shall take effect six
months thereafter, subject to any outstanding public communications, Ministerial review or Review Panels.
2. Canada shall not request the establishment of a Review Panel under Section C at the request of the
government of a province not included in the declaration provided under paragraph 1.
3. Ukraine shall not request the establishment of a Review Panel under Section C concerning a matter related
to a labour law of a province unless that province is included in the declaration provided under paragraph 1.
4. Canada shall, no later than the date on which a Review Panel is established pursuant to Article 13.15
respecting a matter within the scope of paragraph 3, notify Ukraine in writing of whether any recommendation
of a Review Panel in a report under Article 13.16 or any monetary assessment imposed by a Review Panel under
Annex 13-C with respect to Canada shall be addressed to Her Majesty in right of Canada or Her Majesty in right
of the province concerned.
5. Canada shall make its best efforts to have as many of its provinces as possible accept to be added to the
declaration referred in paragraph 1.
Chapter 14: Transparency
Section A - Publication, Notification and Administration of Laws
Article 14.1: Definitions
For the purposes of this Section:
ruling of general application means an administrative ruling or interpretation applying to situations
of fact and persons falling within the general scope of that ruling or interpretation and establishing a norm
of conduct but does not include:
(a) a determination or ruling made in an administrative or quasi-judicial proceeding that applies to a particular
person, good or service of the other Party in a specific case; or
(b) a ruling that adjudicates with respect to a particular act or practice.
Article 14.2: Publication
1. Each Party shall ensure that its legislation, procedures and administrative
rulings of general application respecting a matter covered by this Agreement are promptly published or made
available in such a manner as to enable interested persons and the other Party to become acquainted with them.
2. To the extent possible, each Party shall:
(a) publish in advance any measure that it proposes to adopt; and
(b) provide interested persons and the other Party a reasonable opportunity to comment on those proposed
measures.
Article 14.3: Notification and Provision of Information
1. To the extent possible, each Party shall notify the other Party of an actual
or proposed measure that the Party considers might materially affect the operation of this Agreement or
substantially affect the other Party’s interests under this Agreement.
2. At the request of the other Party, a Party shall promptly provide information and respond to questions
pertaining to an actual or proposed measure, even if the Party was previously notified of that measure.
3. Any notification or information provided pursuant to this Article is without prejudice as to whether the
measure is consistent with this Agreement.
Article 14.4: Administrative Proceedings
In order to ensure that measures of general application affecting matters
covered by this Agreement are applied in a consistent, impartial and reasonable manner, each Party shall
ensure that in its administrative proceedings where the measures referred to in Article 14.2 are applied
to particular persons, goods or services of the other Party:
(a) if possible, persons of the other Party that are directly affected by a proceeding are provided reasonable
notice, in accordance with that Party’s domestic procedures, when a proceeding is initiated, including a
description of the nature of the proceeding, a statement of the legal authority under which the proceeding
is initiated and a general description of the issues in question;
(b) a person referred to in sub-paragraph (a) are afforded a reasonable opportunity to present facts and
arguments in support of their positions prior to a final administrative action, when permitted by time,
the nature of the proceeding, and the public interest; and
(c) the administrative procedures are in accordance with the law of each Party.
Article 14.5: Review and Appeal
1. Each Party shall establish or maintain judicial, quasi-judicial or
administrative bodies or procedures for the purpose of prompt review and, if warranted, correction of final
administrative actions in matters covered by this Agreement. Each Party shall ensure that its respective
bodies are impartial and independent of the office or authority entrusted with administrative enforcement
and do not have a substantial interest in the outcome of the matter.
2. Each Party shall ensure that the parties to the administrative proceedings, referred to in paragraph 1,
have the right to:
(a) a reasonable opportunity to support or defend their respective positions; and
(b) a decision based on the evidence and submissions of record or, if required by Party’s legislation,
the record compiled by the administrative authority.
3. Each Party shall ensure, subject to appeal or review as provided in its legislation, that decisions
referred to in paragraph 3(b) are implemented by, and govern the practice of, the offices or authorities
with respect to the administrative action at issue.
Article 14.6: Cooperation on Promoting Increased
Transparency
The Parties agree to cooperate in bilateral, regional and multilateral
fora on ways to promote transparency in respect of international trade and investment.
Section B - Anti-Corruption
Article 14.7: Definitions
For the purposes of this Section:
foreign public official means a person holding a legislative, executive, administrative, or judicial
office of a foreign country, whether appointed or elected, and a person exercising a public function for a
foreign country, including for a public agency or public enterprise;
official of a public international organization means an international civil servant or any person
who is authorized by such an organization to act on behalf of that organization;
public official means a person:
(a) holding a legislative, executive, administrative or judicial office of a Party;
(i) whether appointed or elected;
(ii) whether permanent or temporary;
(iii) whether paid or unpaid; and
(iv) irrespective of that person’s seniority,
(b) who performs a public function, including for a public agency or public enterprise, or provides a
public service, as defined in the domestic law of the Party and as applied in the pertinent area of
law of that Party; or
(c) defined as a “public official” in domestic law of a Party.
Article 14.8: Statement of Principles
The Parties affirm their resolve to prevent and combat bribery and
corruption in international trade and investment.
Article 14.9: Anti-Corruption Measures
1. With a view to preventing and combating bribery and corruption in
international trade and investment, each Party shall adopt or maintain the legislative or other measures
as may be necessary to establish as criminal offences:
(a) the promise, offering or giving, to a public official, directly or indirectly, of an undue advantage,
for the official themself or another person or entity, in order that the official act or refrain from
acting in the exercise of their official duties;
(b) the solicitation or acceptance by a public official, directly or indirectly, of an undue advantage,
for the official or another person or entity, in order that the official act or refrain from acting in
the exercise of their official duties;
(c) the promise of, offering of or giving to a foreign public official or an official of a public
international organization, directly or indirectly, of an undue advantage, for the official themself
or another person or entity, in order that the official act or refrain from acting in the exercise of
their official duties, in order to obtain or retain business or other undue advantage in relation to
the conduct of international business; and
(d) aiding, abetting or conspiring to commit any of the offences described in sub-paragraphs (a)
through (c).
2. Each Party shall adopt such measures as may be necessary to establish its jurisdiction over criminal
offences referred to in paragraph 1 that are committed in its territory.
3. Each Party shall ensure that its sanctions for offences referred to in paragraph 1 take into
account the gravity of that offence.
4. Each Party shall adopt such measures as may be necessary consistent with its legal principles, to
establish the liability of enterprises for participation in the offences referred to in paragraph 1.
In particular, each Party shall ensure that enterprises held liable for an offence under this
Section are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions,
including monetary sanctions.
5. Each Party shall consider incorporating in its domestic legal system at the national level
appropriate measures to provide protection against any unjustified treatment of a person who reports,
in good faith and on reasonable grounds, facts to the competent authorities concerning offences
referred to in paragraph 1.
Article 14.10: Cooperation in International
Fora
The Parties recognize the importance of regional and multilateral
initiatives to prevent and combat bribery and corruption in international trade and investment. The
Parties agree to work together to advance efforts in regional and multilateral fora to prevent and
combat bribery and corruption in international trade and investment, including encouraging and
supporting appropriate initiatives.
Chapter 15: Trade-Related Cooperation
Article 15.1: Trade-Related Cooperation
1. Recognizing that trade-related cooperation is a catalyst for
the reforms and investments necessary to foster trade-driven economic growth and adjustment to
liberalized trade, the Parties undertake to promote trade-related cooperation, with the following
objectives:
(a) to strengthen the capacities of the Parties to maximize the opportunities and benefits deriving
from this Agreement;
(b) to strengthen and develop cooperation at a bilateral, regional or multilateral level;
(c) to foster new trade and investment opportunities in areas of mutual interest such as those
relating to science, technology and innovation; and
(d) to promote sustainable economic development, with an emphasis on small and medium-sized enterprises.
2. Trade-related cooperation may include:
(a) exchange of information, transfer and exchange of expertise and training, such as facilitating
exchange visits of researchers, experts, specialists and private sector representatives;
(b) joint activities such as joint studies and joint research concerning issues relating to this
Agreement;
(c) transfer of technology, skills and practices;
(d) institutional assistance and capacity-building such as through training seminars, workshops,
conferences and internships;
(e) participation in international activities; and
(f) any other means of cooperation as jointly decided by the Parties.
3. Trade-related cooperation may build on previous cooperation activities, and may include the
subject matters set out in the indicative list in Annex 15-A.
4. The provisions of this Chapter are cooperative and are not subject to dispute settlement under
Chapter 17 of this Agreement.
Article 15.2: Contact Points
1. Each Party designates a Contact Point to facilitate communication
concerning the implementation of this Chapter.
2. The Contact Points may jointly work to establish guidelines for conducting their work and coordinate
with other contact points and committees established under this Agreement, as required, on trade-related
cooperation pursuant to the objectives of this Chapter.
3. The Contact Points may communicate by electronic mail, video-conferencing or any other means as
decided by the Parties.
4. The Contact Points are:
(a) For Ukraine:
Director of International trade-economic
Cooperation and European integration,
Ministry of Economic Development and Trade of Ukraine,
12/2 M. Grushevs’kyi Street, Kyiv, 01008, Ukraine
(b) For Canada:
Director, Head of Development Cooperation
Kyiv, Ukraine
Embassy of Canada to Ukraine
Government of Canada
Annex 15-A: Indicative List of Potential
Subject Matters for Trade-Related Cooperation
1. Support for Small and Medium-sized Enterprises (SMEs)
2. Agriculture
3. Standard-setting
Chapter 16: Administration of the agreement
Article 16.1: Joint Commission
1. The Parties hereby establish the Joint Commission, composed of
representatives at the Ministerial level or their designees.
2. The Joint Commission shall:
(a) supervise the implementation of this Agreement;
(b) review the general functioning of this Agreement;
(c) oversee the further elaboration of this Agreement;
(d) supervise the work of all committees and subcommittees established under this Agreement referred to
in Articles 1 and 2 of Annex 16-A and any other bodies established under paragraph 6; and
(e) consider any other matter that may affect the operation of this Agreement.
3. The Joint Commission may:
(a) adopt interpretive decisions concerning this Agreement binding on panels established under Article
17.7 (Establishment of a Panel);
(b) seek the advice of non-governmental persons or groups;
(c) take any other action in the exercise of its functions as the Parties may decide;
(d) further the implementation of the objectives of this Agreement by approving any revisions of:
(i) a Party’s Schedule to Annex 2-B (Tariff Elimination) with the purpose of adding one or more
goods excluded in the Tariff Elimination Schedule;
(ii) the phase-out periods established in Annex 2-B (Tariff Elimination), with the purpose of
accelerating the tariff reduction;
(iii) the product-specific rules of origin established in Annex 3-A (Product-Specific Rules of
Origin); and
(iv) the procuring entities listed on a Party’s schedule in Annex 10-A (Central Government
Entities) and Annex 10-B (Other Entities);
(e) consider any amendments or modifications to the rights and obligations under this Agreement; and
(f) establish the amount of remuneration and expenses that will be paid to panellists.
4. At the Request of the Committee on the Environment established under Chapter 12 (Environment),
the Joint Commission may revise Annex 1-A (Multilateral Environmental Agreements) to include other
multilateral environmental agreements, or to remove a multilateral environmental agreement listed
in that Annex.
5. The revisions referred to in subparagraph 3(d) and paragraph 4 shall be subject to the completion
of any necessary legal procedures of either Party.
6. The Joint Commission may establish and delegate responsibilities to committees, subcommittees or
working groups. Unless otherwise provided in this Agreement, the committees, subcommittees and working
groups shall work under a mandate recommended by the Agreement Coordinators referred to in Article
16.2 and approved by the Joint Commission.
7. The Joint Commission shall establish its rules and procedures. Decisions of the Commission shall
be taken by mutual consent.
8. The Joint Commission shall convene once a year or upon the request in writing of either Party.
Unless otherwise decided by the Parties, sessions of the Joint Commission shall be held alternately
in the territory of each Party or by any technological means available.
Article 16.2: Agreement Coordinators
1. Each Party shall appoint an Agreement Coordinator and notify the
other Party within 60 days following the entry into force of this Agreement.
2. The Agreement Coordinators shall jointly:
(a) monitor the work of all bodies established under this Agreement, referred to in Annex 16-A and
any other bodies established under Article 16.1.6, including communications relating to successors
to those bodies;
(b) recommend to the Joint Commission the establishment of bodies that they consider necessary to
assist the Joint Commission;
(c) coordinate preparations for Joint Commission meetings;
(d) follow up on any decisions taken by the Joint Commission, as appropriate;
(e) receive notifications and information provided pursuant to this Agreement and, as necessary,
facilitate communications between the Parties on any matter covered by this Agreement; and
(f) consider any other matter that may affect the operation of this Agreement as mandated by
the Joint Commission.
3. The Coordinators shall meet as often as required.
4. A Party may request in writing at any time that a special meeting of the Coordinators be held.
This meeting shall take place within 30 days of receipt of the request by the other Party.
Annex 16-A: Committees, Subcommittees and Other
Bodies
1. The Committees established are the:
(a) Committee on Trade in Goods and Rules of Origin (Article 2.13); and
(b) Committee on Intellectual Property (Article 11.12).
2. The Subcommittees established are the:
(a) Subcommittee on Agriculture (Article 2.13.4); and
(b) Subcommittee on Origin Procedures (Article 3.31).
3. Other bodies established are the:
(a) Labour Ministerial Council (Article 13.9); and
(b) Committee on the Environment (Article 12.16).
4. Contact points are established by:
(a) Chapter 2 (National Treatment and Market Access, Article 3(i) of Annex 2-B (Tariff Elimination);
(b) Chapter 6 (Sanitary and Phytosanitary Measures), Article 6.3 (Sanitary and Phytosanitary Contact Points);
(c) Chapter 7 (Technical Barriers to Trade), Article 7.8 (Chapter Contact Points);
(d) Chapter 11 (Intellectual Property), Article 11.11 (Designation of Contact Points);
(e) Chapter 12 (Environment), Article 12.12 (National Contact Point);
(f) Chapter 13 (Labour), Article 13.10 (National Mechanisms); and
(g) Chapter 15 (Trade Related Cooperation), Article 15.2 (Contact Points)
Chapter 17: Dispute Settlement
Section A - State to State Dispute Settlement
Article 17.1: Definitions
For the purposes of this Chapter:
complaining Party means a Party that requests the establishment
of a panel under Article 17.7;
panel means a panel established under Article 17.7; and
Party complained against means the Party that receives the request for the establishment of
a panel under Article 17.7.
Article 17.2: Cooperation
The Parties shall endeavour to come to an understanding on the
interpretation and application of this Agreement, and attempt through cooperation and consultations
to arrive at a mutually satisfactory resolution of a matter that may affect its operation.
Article 17.3: Scope and Coverage
1. Except for matters arising under Chapters 6 (Sanitary and
Phytosanitary Measures), 11 (Intellectual Property), 12 (Environment) and 13 (Labour), 15 (Trade
Related Cooperation) and Article 9.2 of Chapter 9 (Competition Policy, Monopolies and State
Enterprises) and as otherwise provided under this Agreement, the dispute settlement provisions
of this Chapter apply with respect to the settlement of disputes between the Parties regarding
the interpretation or application of this Agreement or wherever a Party considers that:
(a) an actual or proposed measure of the other Party is or would be inconsistent with one of its
obligations under this Agreement;
(b) the other Party has otherwise failed to carry out one of its obligations under this Agreement;
or
(c) there is nullification or impairment within the meaning of Annex 17-A (Nullification and
Impairment).
2. Annex 17-B (Dispute Settlement for Anti-Corruption) applies to a dispute arising under Section B
of Chapter 14 (Transparency). Except as set out in the Annex 17-B, Articles 17.4 through 17.14 do
not apply to that dispute.
Article 17.4: Choice of Forum
1. Subject to paragraph 2, a dispute regarding a matter arising
under both this Agreement and the WTO Agreement or any other free trade agreement to which both
Parties are party may be settled in a forum designated under the terms of one of these agreements
at the discretion of the complaining Party.
2. Notwithstanding paragraph 1, if a Party complained against claims that a measure is subject to
Article 1.3 (Relation to Environmental and Conservation Agreements) and requests in writing that
the matter be considered under this Agreement, the complaining Party may resort only to the dispute
settlement procedures under this Agreement.
3. If the complaining Party requests the establishment of a dispute settlement panel under an agreement
referred to in paragraph 1, the forum selected shall be used to the exclusion of the other, unless the
Party complained against makes a request pursuant to paragraph 2.
Article 17.5: Consultations
1. A Party may request, in writing, consultations with the other Party
regarding a matter referred to in Article 17.3.
2. The Party requesting consultations shall deliver the request to the other Party, setting out the
reasons for the request, identifying the measure or matter at issue under Article 17.3 and indicating
the legal basis for the complaint.
3. Subject to paragraph 4, the Parties, unless they otherwise decide, shall enter into consultations
within 30 days of the date of receipt of the request by the other Party.
4. In urgent cases, including those involving a good or service that rapidly loses its trade value,
such as perishable goods, consultations shall commence within 15 days of the date of receipt of the
request by the other Party.
5. The requesting Party may request that the other Party make available personnel of its governmental
agencies or other regulatory bodies with expertise in the subject matter of the consultations.
6. The Parties shall attempt to arrive at a mutually satisfactory resolution of a matter through
consultations under this Article. To this end, each Party shall:
(a) provide sufficient information for a full examination of the measure or matter at issue; and
(b) treat as confidential any information, including proprietary information, received in the course
of consultations that is designated as confidential by the Party providing the information.
7. Consultations are confidential and without prejudice to the rights of the Parties in proceedings
under this Chapter.
8. Consultations may be held in person or by another means that the Parties decide.
Article 17.6: Good Offices, Conciliation
and Mediation
1. The Parties, at any time, may decide to undertake an alternative
method of dispute resolution, such as good offices, conciliation or mediation.
2. The Parties shall conduct alternative methods of dispute resolution according to procedures on
which they decide.
3. Either Party, at any time, may begin, suspend or terminate proceedings established under this
Article.
4. Proceedings involving good offices, conciliation and mediation are confidential and without
prejudice to the rights of the Parties in other proceedings.
Article 17.7: Establishment of a Panel
1. Unless the Parties decide otherwise, the complaining Party may
refer the matter to a dispute settlement panel if a matter referred to in Article 17.5 has not been
resolved:
(a) within 45 days of the date of receipt of the request for consultations; or
(b) within 25 days of the date of receipt of the request for consultations for matters referred to
in Article 17.5(4).
2. The complaining Party shall deliver the written request for panel establishment to the Party
complained against, indicating the reason for the request, identifying the specific measure or other
matter at issue, and providing a brief summary of the legal basis of the complaint sufficient to
present the problem clearly.
Article 17.8: Panel Selection
1. The panel shall consist of three panellists.
2. Within 30 days of receiving the request to establish a panel, each Party shall notify the other
Party of its appointment of a panellist, and propose up to four candidates to serve as the chair of
the panel. If a Party fails to appoint a panellist within this time, the panellist shall be selected
by the other Party from the candidates proposed for the chair.
3. The Parties, within 45 days of the date of receipt of the request for panel establishment, shall
endeavour to select a panellist who will serve as chair from among the candidates proposed. If the
Parties fail to select a chair within this time period, within a further 7 days the chair shall be
selected randomly from the candidates proposed.
4. If a panellist appointed by a Party withdraws, is removed or becomes unable to serve, a replacement
shall be appointed by that Party within 30 days, failing which the replacement shall be appointed in
accordance with the second sentence of paragraph 2.
5. If the chair of the panel withdraws, is removed or becomes unable to serve, the Parties shall
endeavour to decide on the appointment of a replacement within 30 days, failing which the replacement
shall be appointed in accordance with the second sentence of paragraph 3.
6. If an appointment pursuant to paragraph 4 or 5 requires selecting from the list of candidates
proposed for chair and there are no remaining candidates, each Party shall propose up to 3 additional
candidates within 30 days and, within 7 days of that deadline, the panellist or the chair, as the case
may be, shall be selected randomly from the candidates proposed.
7. A time limit applicable to the proceeding is suspended as of the date the panellist withdraws, is
removed or becomes unable to serve, and resumes on the date that the replacement is selected.
Article 17.9: Qualifications of Panellists
Each panellist shall:
(a) have expertise or experience in law, international trade or other matters covered by this Agreement,
or in the settlement of disputes arising under international trade agreements;
(b) be chosen strictly on the basis of objectivity, reliability and sound judgment;
(c) be independent of, and not be affiliated with or take instructions from, either Party;
(d) not be a national of a Party, nor have their usual place of residence in the territory of a Party,
nor be employed by either of them;
(e) comply with a Code of Conduct that the Joint Commission shall approve at its first session following
the entry into force of this Agreement; and
(f) not have been involved in an alternative dispute settlement proceeding referred to in Article 17.6
regarding the same dispute.
Article 17.10: Rules of Procedure
1. A panel shall follow the provisions of this Chapter, including Annex
17-C (Rules of Procedure). A panel, in consultation with the Parties, may establish supplementary rules of
procedure that do not conflict with the provisions of this Chapter.
2. Unless the Parties decide otherwise, the rules of procedure shall ensure that:
(a) each Party has the opportunity to provide initial and rebuttal written submissions;
(b) the Parties have the right to at least one hearing before the panel; subject to subparagraph (g) these
hearings shall be open to the public;
(c) the Parties have the right to present and receive written submissions and oral arguments in any of the
Parties’ official languages;
(d) all submissions and comments made to the panel are available to the other Party;
(e) a Party makes available to the public either Party’s written submissions, transcripts of oral
statements and written responses to requests or questions from the panel, subject to subparagraph (g);
(f) the panel allows a non-governmental person of a Party to provide written views regarding the dispute
that may assist the panel in evaluating the submissions and arguments of the Parties; and
(g )information designated by either Party for confidential treatment is protected.
3. Unless the Parties decide otherwise, within 15 days of the date of receipt of the request for panel
establishment, the terms of reference of the panel shall be:
“To examine, in the light of the relevant provisions of the Agreement, the matter referred to in the
request for the establishment of the panel and to make findings, determinations and recommendations as
provided in Article 17.11.”
4. If the complaining Party claims that a benefit has been nullified or impaired within the meaning of
Annex 17-A, the terms of reference shall so indicate.
5. If a Party so requests, the terms of reference of a panel shall include determining the degree of
adverse trade effects on a Party of a measure found:
(a) to be inconsistent with an obligation in the Agreement; or
(b) to have caused nullification or impairment within the meaning of Annex 17-A.
6. At the request of a Party, or on its own initiative, the panel may seek information and technical
advice from a person or body it deems appropriate, subject to those terms and conditions that the
Parties may decide upon.
7. The panel may rule on its own jurisdiction.
8. The panel may delegate to the chair authority to make administrative and procedural decisions.
9. The panel, in consultation with the Parties, may modify a time period applicable in the panel
proceedings and make other procedural or administrative adjustments required for the fairness or
efficiency of the proceeding.
10. Findings, determinations and recommendations of the panel under Article 17.11 shall be made
by a majority of its members.
11. Panellists may furnish separate opinions on matters not unanimously agreed. A panel may
not disclose which panellists are associated with majority or minority opinions.
12. Unless the Parties decide otherwise, the expenses of the panel, including the remuneration
of the panellists, shall be borne in equal shares by the Parties.
Article 17.11: Panel Reports
1. Unless the Parties decide otherwise, the panel shall issue
reports in accordance with the provisions of this Chapter.
2. The panel shall base its reports on the provisions of this Agreement applied and interpreted in
accordance with the rules of interpretation of public international law, the submissions and arguments
of the Parties and information and technical advice before it under the provisions of this Chapter.
3. The panel shall issue an initial report to the Parties within 120 days of the selection of the
last panellist. This report shall contain:
(a) findings of fact;
(b) a determination as to whether the Party complained against has conformed with its obligations
under this Agreement and any other finding or determination requested in the terms of reference; and
(c) a recommendation for resolution of the dispute, if requested by a Party.
4. Notwithstanding Article 17.10, the initial report of the panel shall be confidential.
5. A Party may submit written comments to the panel on its initial report, subject to time limits that
may be set by the panel. After considering those comments, the panel, on its own initiative or on the
request of a Party, may:
(a) request the views of a Party;
(b) reconsider its report; or
(c) carry out a further examination that it considers appropriate.
6. The panel shall present to the Parties a final report within 30 days of presentation of the initial
report.
7. Unless the Parties decide otherwise, the final report of the panel may be published by either Party
15 days after it is presented to the Parties, subject to Article 17.10.2(g).
Article 17.12: Implementation of the Final Report
1. On receipt of the final report of a panel, the Parties shall decide on the
resolution of the dispute. Unless the Parties decide otherwise, the resolution shall conform with a determination
or recommendation made by the panel.
2. Whenever possible, the resolution shall be the removal of a measure not conforming to this Agreement or
removal of the nullification or impairment within the meaning of Annex 17-A.
3. If the Parties are unable to reach a resolution within 30 days of presentation of the final report, or
within another period of time as decided by the Parties, the Party complained against, if so requested by
the complaining Party, shall enter into negotiations with a view to determining compensation.
Article 17.13: Non-Implementation – Suspension of
Benefits
1. The complaining Party, subject to paragraph 4 and following notice to
the Party complained against, may suspend the application to the Party complained against of benefits of
equivalent effect if:
(a) in its final report a panel determines that a measure is inconsistent with the obligations of this
Agreement or that there is nullification or impairment within the meaning of Annex 17A;
(b) the Parties have not been able to resolve the dispute to their mutual satisfaction within 30 days
of receiving the final report; or
(c) the Parties fail to decide on compensation within 30 days of the complaining Party’s request, if a
request was made.
2. The notice referred to in paragraph 1 shall specify the level of benefits that the complaining Party
proposes to suspend.
3. In considering which benefits to suspend under paragraph 1:
(a) the complaining Party should first seek to suspend benefits or other obligations in the same sector
affected by the measure or other matter that the panel has found to be inconsistent with an obligation
under this Agreement or to have caused nullification or impairment within the meaning of Annex 17-A; and
(b) the complaining Party that considers it is not practicable or effective to suspend benefits or other
obligations in the same sector may suspend benefits in another sector.
4. A Party may only suspend benefits temporarily, and only until the other Party has brought the
inconsistent measure or other matter into conformity with this Agreement, including as a result of the
panel process described in Article 17.14, or until the time when the Parties arrive at a resolution of
the dispute.
5. For the purposes of paragraph 4, “inconsistent measure or other matter” means a measure or other
matter found by a panel to be inconsistent with the obligations of this Agreement or otherwise nullifying
or impairing benefits within the meaning of Annex 17-A.
Article 17.14: Review of Compliance and Suspension
of Benefits
1. A Party may, by written notice to the other Party, request that a panel
be reconvened to make a determination regarding:
(a) whether the level of benefits suspended by a Party under Article 17.13.1 is manifestly excessive; or
(b) any disagreement as to the existence or consistency with this Agreement of a measure taken to comply
with the determinations or recommendations of the previously established panel.
2. In the written notice of the request referred to in paragraph 1, the Party shall identify the specific
measure or matter at issue and provide a brief summary of the legal basis of the complaint sufficient to
present the problem clearly.
3. The panel shall be reconvened when the other Party receives written notice of the request referred to
in paragraph 1. In the event that a panellist is unable to serve on the reconvened panel, they shall be
replaced under Article 17.8.4.
4. The provisions of Articles 17.10 and 17.11 apply to procedures adopted and a report issued by a panel
reconvened under this Article, with the exception that, subject to Article 17.10.9, the panel shall present
an initial report within 60 days of being reconvened if the request concerns only paragraph 1(a), and
otherwise within 90 days.
5. A panel reconvened under this Article may include in its report a recommendation, if appropriate, that
a suspension of benefits be terminated or that the amount of benefits suspended be modified.
Article 17.15: Referrals of Matters from Judicial
or Administrative Proceedings
1. If an issue of interpretation or application of this Agreement arises
in a domestic judicial or administrative proceeding of a Party that either Party considers would merit its
intervention, or if a court or administrative body solicits the views of a Party, that Party shall notify
the other Party. The Joint Commission shall endeavour to decide on an appropriate response as expeditiously
as possible.
2. The Party in whose territory the court or administrative body is located shall submit any interpretation
of the Joint Commission to the court or administrative body in accordance with the rules of that forum.
3. If the Joint Commission is unable to decide on the interpretation, a Party may submit its own views
to the court or administrative body in accordance with the rules of that forum.
Section B - Other Dispute Settlement
Article 17.16: Private Rights
A Party may not provide a right of action under its domestic law against
the other Party on the ground that an act or omission of that Party is inconsistent with this Agreement.
Article 17.17: Alternative Dispute Resolution
1. Each Party shall encourage and facilitate the use of arbitration and
other means of alternative dispute resolution to the extent possible in order to settle international
commercial disputes between private parties in the free trade area.
2. To this end, each Party shall provide appropriate procedures to ensure observance of agreements to
arbitrate and for the recognition and enforcement of awards in those disputes.
3. A Party is deemed to comply with paragraph 2 if it is a party to and complies with the United
Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York
on 10 June 1958.
Annex 17-A: Nullification or Impairment
1. If a Party considers that a benefit it could reasonably have expected
to accrue to it under a provision of
(a) Chapter 2 (National Treatment and Market Access), Chapter 3 (Rules of Origin and Origin Procedures),
Chapter 4 (Trade Facilitation), Chapter 5 (Emergency Action) or Chapter 10 (Government Procurement); or
(b) Chapter 8 (Electronic Commerce)
is being nullified or impaired as a result of the application of a measure of the other Party that is not
inconsistent with this Agreement, in the sense of Article XXIII:1(b) of the GATT 1994 or Article XX:2 of
the Annex to the Protocol Amending the Agreement on Government Procurement (hererinafter referred to as
the “GPA”), the Party may have recourse to dispute settlement under this Chapter. A panel established
under this Chapter shall take into account relevant jurisprudence interpreting Article XXIII:1(b) of
the GATT 1994 and Article XX:2 of the GPA.
2. A Party may not invoke paragraph 1(b) or (c) with respect to a measure subject to an exception under
Article 18.2 (General Exceptions).
3. A Party may not invoke paragraph 1 with respect to a measure subject to the exception under Article
18.6 (Cultural Industries).
Annex 17-B: Dispute Settlement for
Anti-Corruption
Consultations
1. A Party may request consultations with the other Party regarding a
matter related to Section B of Chapter 14 (Transparency) by delivering a request in writing to the Agreement
Coordinator of the other Party. The Agreement Coordinators shall consult as soon as possible to discuss the
matter.
2. If the Parties fail to resolve the matter within 60 days of delivery of the request for consultations
referred to in paragraph 1, and the matter relates to an obligation under Section B of Chapter 14 (Transparency),
a Party may request cabinet-level consultations. The Parties shall conduct cabinet-level consultations as
soon as possible after the request for those consultations is made.
Review Panel
3. If the Parties fail to resolve the matter within 120 days of delivery of
the request for cabinet-level consultations referred to in paragraph 2, the requesting Party may request
establishment of a Review Panel by delivering a request in writing to the other Party.
4. Unless the Parties decide otherwise, the terms of reference of the Review Panel shall be:
“To examine, in the light of the relevant provisions of Section B of Chapter 14 of the Agreement, the matter
referred by (name of the complaining Party) as set out in the request for the establishment of the Review
Paneland to make determinations and recommendations as provided in paragraph 14.”
5. Unless the Parties decide otherwise, the Review Panel shall conduct its proceedings in accordance with
the Rules of Procedure in Annex 17-C. A Review Panel may establish, in consultation with the Parties,
supplementary rules of procedure that do not conflict with the provisions of this Annex.
6. If the Review Panel determines that there has been a violation of an obligation under Section B of
Chapter 14 (Transparency), the Parties may decide on a mutually satisfactory action plan to implement the
Panel’s recommendations. Any action plan agreed upon by the Parties may be made publically available by
either Party.
Panel selection
7. A Review Panel shall be composed of three panelists.
8. Panellists shall:
(a) be chosen on the basis of expertise in anti-corruption matters or other appropriate disciplines,
objectivity, reliability and sound judgment;
(b) be independent of, and not be affiliated with or take instructions from, either Party;
(c) not have an interest in the review directly, nor be affiliated with a person or organization that
has an interest in the review; and
(d) comply with the Code of Conduct referred to in Article 17.9(e).
Panel selection procedures
9. Each Party shall, within 20 days of delivery of the request referred
to in paragraph 3, appoint a panellist, propose up to four candidates that are not nationals of either
Party to serve as the chair of the Review Panel, and notify the other Party in writing of the appointment
and its proposed candidates to serve as chair.
10. If a Party fails to appoint a panelist within this time, the other Party shall select the panellist
from among qualified individuals who are nationals of the Party that has failed to select its panellist.
11. The Parties shall, within 30 days after the date of receipt of the request for panel establishment,
endeavour to decide on and appoint a chair. If the Parties fail to decide on the chair within this time,
within a further seven days the chair shall be selected by lot from among the candidates proposed.
12. If either Party believes that a panelist is in violation of the Code of Conduct referred to in Article
17.9(e), the Parties shall consult and, if they agree, the panelist shall be removed and a new panelist
shall be selected in accordance with the procedures set out in paragraphs 9 to 11. The time limits for that
selection will run from the date the Parties agree to remove the panelist.
Review Panel Process
Initial Report
13. The Review Panel shall present to the Parties an initial report within 120 days of the selection of the
last panelist.
14. The report shall contain:
(a) findings of fact;
(b) the Review Panel’s determination as to whether there has been a violation of an obligation; and
(c) if a violation has been found, the Review Panel’s recommendations for the resolution of the matter.
Final Report
15. The Parties may provide comments on the initial report within 60 days of its presentation to the
Parties.
16. The Review Panel shall present the final report to the Parties within 90 days of providing the initial
report.
17. A Party may publish the final report 60 days after it is presented to the Parties.
18. The Parties may decide to modify any time limits set out in this Annex.
19. The Parties shall determine a separate budget for each set of panel proceedings pursuant to this Annex.
If the Parties do not decide on a budget, the expenses of the Review Panel will be shared by the Parties equally.
Annex 17-C: Rules of Procedure
Application
1. The following rules of procedure apply to a dispute settlement proceeding under this Chapter, unless the
Parties decide otherwise.
Definitions
2. For the purposes of this Annex:
adviser means a person retained by a Party to advise or assist the Party in connection with the panel
proceeding;
legal holiday means every Saturday and Sunday and any other day designated by a Party as a holiday
for the purposes of these rules; and
representative means an employee of a government department or agency or of another government entity
of a Party.
Written Submissions and Other Documents
3. Each Party shall deliver the original and a minimum of 3 copies of any written submission to the panel
and one copy to the Embassy of the other Party. Delivery of submissions and any other document related to
the panel proceeding may be made by e-mail or other means of electronic transmission if the Parties so
decide. When a Party delivers physical copies of written submissions or any other document related to
the panel proceeding, that Party shall also deliver an electronic version of the submissions or other
documents.
4. The complaining Party shall deliver an initial written submission no later than 10 days after
the date on which the last panellist is appointed. The Party complained against, in turn, shall deliver
a written counter-submission no later than 20 days after the date on which the initial written submission
of the complaining Party is due.
5. The panel, in consultation with the Parties, shall establish dates for the delivery of the subsequent
written rebuttal submissions of the Parties and any other written submissions that the panel and the Parties
determine are appropriate.
6. At any time a Party may correct minor errors of a clerical nature in any written submission or other
document related to the panel proceeding by delivering a new document clearly indicating the changes.
7. If the last day for delivery of a document falls on a legal holiday observed by either Party or on
another day on which the government offices of either Party are closed by order of the government or by
force majeure, the document may be delivered on the next business day.
Burden of Proof
8. A complaining Party asserting that a measure of the other Party is inconsistent with the provisions of
this Agreement shall have the burden of establishing that inconsistency. If the Party complained against
asserts that a measure is subject to an exception or exemption under this Agreement, it shall have the
burden of establishing that the exception or exemption applies.
Written Submission by a Non-Governmental Person
9. A panel, on application, may grant leave to a non-governmental person of a Party to file written
submissions. In making its decision to grant leave, the panel shall consider, among other things:
(a) if the subject matter of the proceeding is of public interest;
(b) if the non-governmental person has a substantial interest in the proceeding, which requires more
than an interest in the development of trade law jurisprudence, the interpretation of the Agreement or
the subject matter of the dispute;
(c) if the written submission would assist the panel in determining a factual or legal issue related
to the proceeding by bringing a perspective, particular knowledge or insight that is different from
that of the Parties; and
(d) submissions by the Parties on the application for leave.
10. If the panel has granted leave to a non-governmental person to file a written submission, the
panel shall ensure that:
(a) the written submission does not introduce new issues to the dispute;
(b) the written submission is within the terms of reference of the dispute as defined by the Parties;
(c) the written submission addresses only the issues of fact and law that the non-governmental person
described in its application for leave;
(d) the written submission avoids disrupting the proceeding and preserves the equality of the Parties;
and
(e) the Parties have the opportunity to respond to the written submission.
Role of Experts
11. On request of a Party, or on its own initiative, the panel may seek information and technical advice
from a person or body that it deems appropriate, subject to paragraphs 12 and 13 and any additional
terms and conditions as the Parties may decide. The requirements set out in Article 17.9 apply to the
experts or bodies, as appropriate.
12. Before the panel seeks information or technical advice under paragraph 11, it shall:
(a) notify the Parties of its intention to seek information or technical advice and provide them with an
adequate period of time to submit comments; and
(b) provide the Parties with a copy of information or technical advice received and provide them with an
adequate period of time to submit comments.
13. If the panel takes into consideration the information or technical advice received under paragraph 11
for the preparation of its report, it shall also take into consideration comments or observations submitted
by the Parties with respect to that information or technical advice.
Operation of Panels
14. The chair shall preside at all of the panel’s meetings.
15. The panel may conduct its business by any appropriate means, including by telephone, facsimile
transmission and video or computer links.
16. Only panellists may take part in the deliberations of the panel. The panel, in consultation with the
Parties, may employ assistants, interpreters or translators, or stenographers to the extent they may be
required for the proceeding, and may permit them to be present during the deliberations. The members of
the panel and the persons employed by the panel shall maintain the confidentiality of the panel’s
deliberations and information that is protected under Article 17.10(g).
17. A panel, in consultation with the Parties, may modify a time period applicable in the panel proceedings
and make other procedural or administrative adjustments required in the proceeding.
Hearings
18. The chair shall fix the date and time of the initial hearing and any subsequent hearing in consultation
with the Parties and the panellists, and then notify the Parties in writing of those dates and times.
19. Unless the Parties decide otherwise, the location of hearings shall alternate between the territories
of the Parties, with the first hearing to take place in the territory of the Party complained against.
20. No later than 5 days before the date of a hearing, each Party shall deliver to the other Party and the
panel a list of the names of the persons who will be present at the hearing on behalf of that Party, as
well as a list of the other representatives or advisers who will be attending the hearing.
21. Each hearing shall be conducted by the panel in a manner that ensures that the complaining Party and
the Party complained against are afforded equal time for arguments, replies and counter-replies.
22. Hearings shall be open to the public, except as necessary to protect information designated by either
Party for confidential treatment. The panel, in consultation with the Parties, shall adopt appropriate
logistical arrangements and procedures to ensure that hearings are not disrupted by the attendance of the
public. Those procedures may include, among other methods, the use of live web-broadcasting or closed-circuit
television.
23. The panel shall arrange the preparation of any hearing transcripts and shall deliver a copy of those
transcripts to each Party as soon as possible after they are prepared.
Ex Parte Contacts
24. A Party may not communicate with the panel without notifying the other Party. The panel shall not
communicate with a Party in the absence of, or without notifying, the other Party.
25. A panellist may not discuss an aspect of the substantive subject matter of the proceeding with the
Parties in the absence of the other panellists.
Remuneration and Payment of Expenses
26. Each panellist shall keep a record and render a final account to the Parties of their time and expenses,
and those of any assistant. The chair of the panel shall keep a record and render a final account to the
Parties of all general expenses.
Chapter 18: Exceptions
Article 18.1: Definitions
For the purposes of this Chapter:
competition authority means:
(a) for Canada, the Commissioner of Competition and includes a successor notified to the other Party
through the Coordinators; and
(b) for Ukraine, the Antimonopoly Committee of Ukraine and includes a successor notified to the other
Party through the Coordinators.
designated authority means:
(a) for Canada, the Assistant Deputy Minister for Tax Policy, Department of Finance and includes a
successor notified to the other Party through the Coordinators; and
(b) for Ukraine, the State Fiscal Service of Ukraine and includes a successor notified to the other
Party through the Coordinators.
information protected under its competition laws means:
(a) for Canada, information within the scope of Section 29 of the Competition Act, R.S.C. 1985,
c. C-34, and includes any successor provision; and
(b) for Ukraine, information with restricted access according to Article 221 of the Law of Ukraine
On the Antimonopoly Committee of Ukraine and includes any successor provision.
person engaged in a cultural industry means a person engaged in any of the following activities:
(a) the publication, distribution or sale of books, magazines, periodicals or newspapers in print or
machine-readable form, but not including the sole activity of printing or typesetting any of the foregoing;
(b) the production, distribution, sale or exhibition of film or video recordings;
(c) the production, distribution, sale or exhibition of audio or video music recordings;
(d) the publication, distribution or sale of music in print or machine-readable form; or
(e) radiocommunications in which the transmissions are intended for direct reception by the general public,
and all radio, television and cable broadcasting undertakings and all satellite programming and broadcast
network services.
tax convention means a convention for the avoidance of double taxation or other international taxation
agreement or arrangement; and
tax and taxation measure do not include:
(a) a customs duty; or
(b) a measure listed in exceptions (b), (c), or (d) in the definition of customs duty in Article 1.6 (Definitions
of General Application).
Article 18.2: General Exceptions
For the purposes of Chapter 2 (National Treatment and Market Access),
Chapter 3 (Rules of Origin and Origin Procedures), Chapter 4 (Trade Facilitation), Chapter 5
(Emergency Action), Chapter 6 (Sanitary and Phytosanitary Measures), Chapter 7 (Technical Barriers to Trade),
and Chapter 8 (Electronic Commerce), GATT 1994 Article XX is incorporated into this Agreement.
The Parties understand that the measures referred to in GATT 1994 Article XX (b) include environmental
measures necessary to protect human, animal or plant life or health. The Parties further understand that
GATT 1994 Article XX (g) applies to measures for the conservation of living and non-living exhaustible
natural resources.
Article 18.3: National Security
This Agreement does not:
(a) require a Party to furnish or allow access to information if that Party determines that the disclosure
of this information would be contrary to its essential security interests;
(b) prevent a Party from taking an action that it considers necessary to protect its essential security
interests:
(i) relating to the traffic in arms, ammunition and implements of war and to such traffic and transactions
in other goods, materials, services and technology undertaken directly or indirectly for the purpose of
supplying a military or other security establishment;
(ii) taken in time of war or other emergency in international relations; or
(iii) relating to the implementation of national policies or international agreements respecting the
non-proliferation of nuclear weapons or other nuclear explosive devices; or
(c) prevent a Party from fulfilling its obligations under the Charter of the United Nations for
the maintenance of international peace and security.
Article 18.4: Taxation
1. Except as set out in this Article, this Agreement does not apply to a
taxation measure.
2. This Agreement does not affect the rights and obligations of a Party under a tax convention. In the
event of any inconsistency between this Agreement and a tax convention, the tax convention prevails.
3. If a provision with respect to a taxation measure under this Agreement is similar to a provision
under a tax convention, the competent authorities identified in the tax convention shall use the
procedural provisions of that tax convention to resolve an issue that may arise under this Agreement.
4. Notwithstanding paragraphs 2 and 3:
(a) Article 2.3 (National Treatment) and the provisions of this Agreement necessary to give effect to
that Article apply to a taxation measure to the same extent as Article III of the GATT; and,
(b) Article 2.9 (Customs Duties on Exports) applies to a taxation measure.
5. In order to give effect to paragraphs 1 to 3:
(a) if an issue arises as to whether a measure of a Party is a taxation measure in a dispute between the
Parties, either Party may refer the issue to the designated authorities of the Parties. The designated
authorities shall decide the issue of whether the measure is a taxation measure, and their decision shall
bind any panel established under Article 17.7 (Establishment of a Panel) for the dispute. If a Party has
referred the issue to the designated authorities and they have not decided the issue within six months of
the referral, the panel shall decide the issue; and
(b) if an issue arises as to whether, according to paragraph 2, a tax convention prevails over this
Agreement in a dispute between the Parties, a Party to the dispute may refer the issue to the designated
authorities of the Parties. The designated authorities shall consider the issue and decide whether there
is an inconsistency between this Agreement and a tax convention with respect to a taxation measure that
gives rise to the issue. If within six months of the referral of the issue to the designated authorities,
they decide with respect to the taxation measure that gives rise to the issue that there is an inconsistency,
procedures concerning that taxation measure may not be initiated under Article 17.7(Establishment of a Panel).
Procedures concerning the taxation measure may not be initiated while the designated authorities are
considering the issue. If a Party has referred the issue to the designated authorities and they have not
decided the issue within six months of the referral, the panel shall decide the issue.
6. The designated authorities seized of an issue under paragraph 5 may modify the time period allowed to
decide the issue.
7. This Agreement does not require a Party to furnish or allow access to information the disclosure of which
would be contrary to that Party’s law protecting information concerning the taxation affairs of a taxpayer.
Article 18.5: Disclosure of Information
1. This Agreement does not require a Party to furnish or allow access to
information that if disclosed would impede law enforcement, or would be contrary to the Party’s law protecting
the deliberative and policy-making processes of the executive branch of government at the cabinet level,
personal privacy or the financial affairs and accounts of individual customers of financial institutions.
2. In the course of a dispute settlement procedure under this Agreement:
(a) a Party is not required to furnish or allow access to information protected under its competition
laws; and
(b) a competition authority of a Party is not required to furnish or allow access to information that
is privileged or otherwise protected from disclosure.
Article 18.6: Cultural Industries
This Agreement does not apply to a measure adopted or maintained by a
Party with respect to a person engaged in a cultural industry except as specifically provided in Article
2.4 (Tariff Elimination on Imports).
Article 18.7: World Trade Organization Waivers
If a right or obligation in this Agreement duplicates a right or obligation
under the WTO Agreement, a measure adopted by a Party in conformity with a waiver decision adopted by the
WTO pursuant to Article IX of the WTO Agreement is deemed to be also in conformity with this Agreement.
Chapter 19: Final provisions
Article 19.1: Annexes, Appendices and Footnotes
The Annexes, Appendices and footnotes to this Agreement constitute integral
parts of this Agreement.
Article 19.2: Review Clause
The Parties undertake to review this Agreement within two years of its entry
into force, in light of further developments including within the framework of the WTO Agreement, and other
agreements to which the Parties are party, with a view to examining the further development and deepening of
its provisions and to extending it to subject matters not covered therein, including cross-border trade in
services, financial services, investment, telecommunications, temporary entry and any other subject area as
decided by the Parties.
Article 19.3: Amendments
The Parties may agree, in writing, to amend this Agreement. An amendment
shall enter into force after the Parties exchange written notifications certifying that they have completed
their respective applicable internal requirements and procedures necessary for the entry into force of the
amendment, on the date agreed by the Parties.
Article 19.4: Reservations and Unilateral Declarations
This Agreement shall not be subject to unilateral reservations or unilateral
interpretive declarations.
Article 19.5: Entry into Force
1. Each Party shall notify the other Party in writing of the completion
of its domestic procedures required for the entry into force of this Agreement.
2. This Agreement shall enter into force on the first day of the second month following receipt of the latter
notification of the completion of the procedures for entry into force.
Article 19.6: Termination
This Agreement may be terminated by either Party by giving notice in writing
of its intention to terminate to the other Party. The Agreement shall terminate six months after the date of
receipt of that notice.
Article 19.7: Accession
A non-Party may accede to this Agreement upon terms and conditions to be set
out in an Agreement on Accession between the Parties and the non-Party. The Parties and the non-Party shall
notify each other through diplomatic channels of the completion of the internal procedures necessary to
approve the Agreement on Accession.
In witness whereof, the undersigned, being duly authorized, have signed this Agreement.
Done in duplicate at, this day of 2016, in the English, French and Ukrainian languages,
each version being equally authentic.
________________ For Canada |
________________ For Ukraine |
Footnotes
Chapter 3:
1
If the legislation of the Party of import provides for an origin declaration to apply to multiple
shipments of identical originating products in accordance with Article 3.16.5 of the Canada – Ukraine
Free Trade Agreement, the exporter may indicate the period of time for which the origin declaration
will apply. The period of time must not exceed 12 months. All importations of the product must occur
within the period indicated. If the Party of import does not provide for the application of Article
3.16.5, or a period of time is not applicable, the field must be left blank.
2 “Canada/Ukraine” means products
qualifying as originating under the rules of origin of the Canada-Ukraine Free Trade Agreement.
3 These indications may be omitted
if the information is contained on the document itself.
4 Article 3.16.3 of the Canada –
Ukraine Free Trade Agreement provides an exception to the requirement of the exporter’s signature.
Where the exporter is not required to sign, the exception of signature also implies the exemption
of the name of the signatory.
Chapter 5:
1For the purpose of this Article, “interested parties” are defined as per
Article 6.11 of the Anti-Dumping Agreement and Article 12.9 of the SCM
Agreement.
Chapter 11:
1For the purposes of this Chapter, intellectual
property rights refer to all categories of intellectual property rights that are the subject of Sections 1 through
7 of Part II of the TRIPS Agreement.
2 For greater certainty, there is no obligation
for a Party to provide for the possibility of imprisonment and monetary fines to be imposed in parallel.
3 For instance, the procedures in this Article
are without prejudice to a Party’s law, adopting or maintaining a regime providing for limitations on the liability
of, or on the remedies available against, online service providers while preserving the legitimate interests of
right holders.
4 Footnote 14 of the TRIPS Agreement contains the
following definitions:
(a) “counterfeit trademark goods” shall mean any goods, including packaging, bearing without authorization a
trademark which is identical to the trademark validly registered in respect of such goods, or which cannot
be distinguished in its essential aspects from such a trademark, and which thereby infringes the rights of
the owner of the trademark in question under the law of the country of importation;
(b) “pirated copyright goods” shall mean any goods which are copies made without the consent of the right
holder or person duly authorized by the right holder in the country of production and which are made directly
or indirectly from an article where the making of that copy would have constituted an infringement of a
copyright or a related right under the law of the country of importation.
5 For greater certainty, reference to “import
and export shipments” referenced in this Article need not include shipments moving “in-transit”.
|