OAS

 

UNITED STATES - AUSTRALIA FREE TRADE AGREEMENT

[ Index > Chapters > 1-13 > 14-23 > ]

CHAPTER FOURTEEN

COMPETITION-RELATED MATTERS

ARTICLE 14.1 : OBJECTIVES

Recognizing that the conduct subject to this Chapter has the potential to restrict bilateral trade and investment, the Parties believe that proscribing such conduct, implementing policies that promote economic efficiency and consumer welfare, and cooperating on matters covered by this Chapter will help secure the benefits of this Agreement.

ARTICLE 14.2 : COMPETITION LAW AND ANTICOMPETITIVE BUSINESS CONDUCT

1. Each Party shall maintain or adopt measures to proscribe anticompetitive business conduct and take appropriate action with respect thereto, recognizing that such measures will help realise the objectives of this Agreement. To this end, the Parties shall consult from time to time about the effectiveness of measures that a Party has undertaken. Each Party shall ensure that a person subject to the imposition of a sanction or remedy for violation of such measures is provided with the opportunity to be heard and to present evidence, and to seek review of such sanction or remedy in a court or independent tribunal of that Party.

2. Each Party shall maintain an authority or authorities responsible for the enforcement of its national competition laws. The enforcement policy of each Party’s central government authorities responsible for the enforcement of such laws includes treating non-nationals no less favourably than nationals in like circumstances, and each Party’s authorities intend to maintain this policy, in that regard.

3. The Parties recognize the importance of cooperation and coordination between their respective authorities to further effective competition law enforcement in the free trade area. The Parties shall cooperate in relation to the enforcement of competition laws and policy, including through mutual assistance, notification, consultation, and exchange of information.

(a) The Parties recognize their existing mechanisms for cooperation in relation to competition law enforcement, specifically:

(i) The Agreement between the Government of Australia and the Government of the United States of America relating to Cooperation on Antitrust Matters of 1982; and

(ii) The Agreement between the Government of Australia and the Government of the United States of America on Mutual Antitrust Enforcement Assistance of 1999.

(b) The Parties shall work to further strengthen their cooperation in these areas. Such cooperation shall include consideration by a Party’s central government authorities responsible for the enforcement of its competition laws, where feasible and appropriate, of a request by the other Party’s central government authorities responsible for the enforcement of its competition laws to initiate or expand enforcement activities.

4. To further advance their cooperation, the Parties shall examine the scope for strengthening support for, and minimizing legal impediments to, the effective enforcement of each other’s competition laws and policies. The Parties shall establish a joint working group with the goal of seeking to reach a common view, by the first meeting of the Joint Committee established pursuant to Chapter 21 (Institutional Arrangements and Dispute Settlement), of appropriate steps to enhance their respective legal and regulatory regimes in that regard.

ARTICLE 14.3 : DESIGNATED MONOPOLIES

1. Recognizing that designated monopolies should not operate in a manner that creates obstacles to trade and investment, each Party shall ensure that any privately-owned monopoly that it designates after the date of entry into force of this Agreement and any government monopoly that it designates or has designated:

(a) acts in a manner that is not inconsistent with the Party’s obligations under this Agreement wherever such a monopoly exercises any 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 import or export licenses, approve commercial transactions, or impose quotas, fees, or other charges;

(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 any terms of its designation that are not inconsistent with subparagraph (c) or (d);

(c) provides non-discriminatory treatment to covered investments, to goods of the other Party, and to service suppliers of the other Party in its purchase or sale of the monopoly good or service in the relevant market; and

(d) does not use its monopoly position to engage, either directly or indirectly, including through its dealings with its parent, subsidiaries, or other enterprises with common ownership, in anticompetitive practices in a non-monopolized market in its territory, where such practices adversely affect covered investments.

2. Nothing in this Chapter shall be construed as preventing a Party from designating a monopoly.

3. This Article does not apply to government procurement.

ARTICLE 14.4 : STATE ENTERPRISES AND RELATED MATTERS

1. The Parties recognize that state enterprises should not operate in a manner that creates obstacles to trade and investment. In that light, each Party shall ensure that any state enterprise that it establishes or maintains:

(a) acts in a manner that is not inconsistent with the Party’s obligations under this Agreement wherever such enterprise exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant licenses, approve commercial transactions, or impose quotas, fees, or other charges; and

(b) accords non-discriminatory treatment in the sale of its goods or services.

2. The United States shall ensure that anticompetitive activities by sub-federal state enterprises are not excluded from the reach of its national antitrust laws solely by reason of their status as sub-federal state enterprises, to the extent that their activities are not protected by the State Action Doctrine.

3. Australia shall take reasonable measures, including through its policy of competitive neutrality, to ensure that its governments at all levels do not provide any competitive advantage to any government businesses simply because they are government-owned. This paragraph applies to the business activities of government businesses and not to their non-business, non-commercial activities. Australia shall ensure that its competitive neutrality complaints offices treat complaints lodged by the United States, or persons of the United States, no less favourably than complaints lodged by persons or government bodies of Australia.

ARTICLE 14.5 : DIFFERENCES IN PRICING

Articles 14.3 and 14.4 shall not be construed as preventing a monopoly or state enterprise from charging different prices in different markets, or within the same market, where such differences are based on normal commercial considerations, such as taking account of supply and demand conditions.

ARTICLE 14.6 : CROSS BORDER CONSUMER PROTECTION

1. The Parties recognize the importance of cooperation and coordination on matters related to their consumer protection laws in order to enhance consumer welfare in the free trade area. Accordingly, the Parties shall cooperate in the enforcement of their consumer protection laws.

2. The Parties recognize the existing mechanisms for cooperation in relation to consumer protection, including:

(a) the Agreement between the Federal Trade Commission of the United States of America and the Australian Competition and Consumer Commission on the Mutual Enforcement Assistance in Consumer Protection Matters of 2000;

(b) the OECD Guidelines for Protecting Consumers from Fraudulent and Deceptive Commercial Practices Across Borders of 2003; and

(c) the International Consumer Protection and Enforcement Network (ICPEN).

3. The Parties shall further strengthen cooperation and coordination among their respective agencies, including the U.S. Federal Trade Commission (FTC) and the Australian Competition and Consumer Commission (ACCC) in areas of mutual concern, in particular fraudulent and deceptive commercial practices against consumers:

(a) in the development of appropriate procedures for

(i) cooperating in the prompt detection of consumer protection law violations affecting consumers or markets in both Parties’ territories,

(ii) notifying each other of significant investigations and proceedings involving consumer protection law violations occurring or originating in the territory of the other Party or significantly affecting consumers or markets in the territory of the other Party,

(iii) exchanging information related to the administration of their consumer protection laws,

(iv) providing enforcement and investigative assistance to each other to the extent compatible with each Party’s laws, in appropriate consumer protection law cases, and

(v) consulting and coordinating on enforcement actions against consumer protection law violations that have a significant cross-border dimension;

(b) in the development of coordinated strategies to combat fraudulent and deceptive commercial practices against consumers, both bilaterally and multilaterally; and

(c) through joint study of additional measures to enhance the scope and effectiveness of information sharing, investigative assistance, and cooperation and coordination in the enforcement of the Parties’ respective consumer protection laws, including the use of investigative powers and participation in appropriate court proceedings.

4. Nothing in this Article shall limit the discretion of the FTC or ACCC to decide whether to take action on particular requests by the other agency, or shall preclude either agency from taking action with respect to particular cases.

5. In addition, the Parties shall identify, in areas of mutual concern and consistent with their important interests, obstacles to effective cross-border cooperation in the enforcement of consumer protection laws, and shall consider changing their domestic frameworks to overcome such obstacles and enhance the ability of the Parties to cooperate, share information, and assist in the enforcement of each other’s consumer protection laws, including, if appropriate, adopting or amending national legislation to overcome such obstacles.

ARTICLE 14.7 : RECOGNITION AND ENFORCEMENT OF MONETARY JUDGMENTS

1. The Parties recognize the importance of civil proceedings by the FTC, U.S. Securities and Exchange Commission, U.S. Commodity Futures Trading Commission, Australian Securities and Investments Commission, and the ACCC to provide monetary restitution to consumers, investors, or customers who have suffered economic harm as a result of being deceived, defrauded, or misled. The Parties further recognize the importance of facilitating cross-border recognition and enforcement of monetary judgments obtained for such purposes.

2. When an agency listed in paragraph 1 obtains a civil monetary judgment from a judicial authority of a Party for the purpose of providing monetary restitution to consumers, investors, or customers who have suffered economic harm as a result of being deceived, defrauded, or misled, a judicial authority of the other Party generally should not disqualify such a monetary judgment from recognition or enforcement on the ground that it is penal or revenue in nature or based on other foreign public law, including where such judgment contains provisions for recovery of monies or other disposition in the event that restitution is impractical or for payment of expenses related to the collection or distribution of such a monetary judgment.

3. The judicial authorities of a Party should consider the recognition or enforcement of provisions for monetary judgments described in paragraph 2 separately from other provisions of the judgment, to the extent such other provisions are deemed to be penal or revenue in nature orbased on other foreign public law for the purposes of recognition or enforcement.

4. Nothing in this Article is intended to affect whether any other category of law or judgment is appropriately viewed as penal or revenue in nature or based on other foreign public law for the purposes of the recognition or enforcement of foreign judgments.

5. Each Party’s agencies listed in paragraph 1 should cooperate with the relevant agencies of the other Party, where feasible and appropriate, in facilitating the identification of consumers,investors, and customers described in paragraph 2 and on other matters relating to payment of monetary judgments.

6. The Parties shall work together to examine the scope for establishing greater bilateral recognition of foreign judgments of their respective judicial authorities obtained for the benefit of consumers, investors, or customers who have suffered economic harm as a result of being deceived, defrauded, or misled; and shall report on the feasibility and appropriateness of, and progress toward, greater recognition of such foreign judgments at the first meeting of the Joint Committee.

ARTICLE 14.8 : TRANSPARENCY

1. The Parties recognize the value of transparency in their competition policies.

2. On request of a Party, each Party shall make available to the other Party public information concerning:

(a) the enforcement of its measures proscribing anticompetitive business conduct;

(b) its state enterprises, government businesses, and public or private designated monopolies, provided that requests for such information shall indicate the entities involved, specify the particular products and markets concerned, and include indicia that these entities may be engaging in practices that may hinder trade or investment between the Parties; and

(c) exemptions and immunities to its measures proscribing anticompetitive business conduct, provided that requests shall specify the particular goods and markets of concern and include indicia that the exemptions and immunities may hinder trade or investment between the Parties.

ARTICLE 14.9 : COOPERATION

The Parties recognize that policies related to matters covered by this Chapter can be a force for open and competitive markets domestically and internationally. They also recognize that such policies can have an effect on investment and on the extent to which enterprises of a Party can compete with, sell goods and services to, and purchase good and services from enterprises of the other Party. Accordingly, the Parties shall cooperate, including in the manner provided for in Articles 14.2.3 and 14.6, to promote policies related to matters covered by this Chapter that foster free trade and investment and competitive markets.

ARTICLE 14.10 : CONSULTATIONS

1. To foster understanding between the Parties, or to address specific matters that arise under this Chapter, each Party shall, on request of the other Party, enter into consultations regarding representations made by the other Party. In its request, the Party shall indicate, if relevant, how the matter affects trade or investment between the Parties.

2. The Party to which a request for consultations has been addressed shall accord full and sympathetic consideration to the concerns raised by the Party having made the request.

ARTICLE 14.11 : DISPUTE SETTLEMENT

Neither Party may have recourse to dispute settlement under this Agreement for any matter arising under Articles 14.2, 14.4.2, 14.4.3, 14.6, 14.7, 14.9, or 14.10.2.

ARTICLE 14.12 : DEFINITIONS

For the purposes of this Chapter:

1. consumer protection laws means:

(a) in the case of the United States, laws and regulations prohibiting “unfair or deceptive acts or practices” within the meaning of Section 5 of the Federal Trade Commission Act; and

(b) in the case of Australia, Parts IVA, V, and VC of the Trade Practices Act 1974;

as well as any amendments thereto, and such other laws or regulations as the Parties may agree in writing;

2. designate means, whether formally or in effect, to establish, designate, or authorize a monopoly or to expand the scope of a monopoly to cover an additional good or service;

3. government businesses means Australian government businesses within the meaning of Australia’s Competition Principles Agreement of 1995;

4. government monopoly means a monopoly that is owned, or controlled through ownership interests, by the central government of a Party or by another such monopoly;

5. in accordance with commercial considerations means consistent with normal business practices of privately-held enterprises in the relevant business or industry;

6. market means the geographical and commercial market for a good or service;

7. monopoly means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as 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;

8. non-discriminatory treatment means the better of national treatment and mostfavoured-nation treatment, as set out in the relevant provisions of this Agreement, including the terms and conditions set out in the relevant Annexes thereto; and

9. state enterprise means an enterprise owned, or controlled through ownership interests, by any level of government of a Party.

CHAPTER FIFTEEN

GOVERNMENT PROCUREMENT

ARTICLE 15.1 : SCOPE AND COVERAGE

Application of Chapter

1. This Chapter applies to any measure regarding covered procurement.

2. For the purposes of this Chapter, covered procurement means a procurement of goods, services, or both:

(a) by any contractual means, including purchase, rental, or lease, with or without an option to buy, build-operate-transfer contracts, and public works concessions contracts;

(b) for which the value, as estimated in accordance with paragraphs 6, 7, or 8, as appropriate, equals or exceeds the relevant threshold specified in Annex 15-A;

(c) that is conducted by a procuring entity; and

(d) is not excluded from coverage by this Agreement.

3. This Chapter does not apply to:

(a) non-contractual agreements or any form of assistance that a Party or a government enterprise provides, including grants, loans, equity infusions, fiscal incentives, subsidies, guarantees, cooperative agreements, and sponsorship arrangements;

(b) procurement of goods and services by a Party from its own entities and provision of goods or services by or between a procuring entity of a Party and a regional or local government of that Party;

(c) purchases funded by international grants, loans, or other assistance, where the provision of such assistance is subject to conditions inconsistent with this Chapter;

(d) purchases funded by grants and sponsorship payments from persons not listed in Annex 15-A;

(e) procurement for the direct purpose of providing foreign assistance;

(f) procurement of research and development services;

(g) procurement of goods and services (including construction) outside the territory of the procuring Party, for consumption outside the territory of the procuring Party; and

(h) acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions, and sale and distribution services for government debt.

4.

(a) The Parties acknowledge and reaffirm the commitments made in the Memorandum of Agreement Between the Government of Australia and the Government of the United States Concerning Reciprocal Defense Procurement, dated April 19, 1995 (the “MOA”) and acknowledge that the MOA, and any extension thereof, applies to certain defence procurements that are outside the scope of this Chapter.

(b) The Parties will continue discussions on improving and expanding the relationship established by the MOA, recognising that this Agreement will have no application to, or impact on, the MOA or any of the rights and responsibilities established under the MOA.

Compliance

5. Each Party shall ensure that its procuring entities comply with this Chapter in conducting covered procurements.

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 use a particular method for estimating the value of the procurement for the purpose of avoiding the application of this Chapter;

(b) take into account all forms of remuneration, including any premiums, fees, commissions, interest, other revenue streams that may be provided for under the contract, and, where the procurement provides for the possibility of option clauses, the total maximum value of the procurement, inclusive of optional purchases; and

(c) without prejudice to paragraph 7, where the procurement is to be conducted in multiple parts, with contracts to be awarded at the same time or over a given period to one or more suppliers, base its calculation on the total maximum value of the procurement over its entire duration.

7. In the case of procurement by lease or rental or procurement that does not specify a total price, the basis for estimating the value of the procurement shall be, with respect to:

(a) a fixed-term contract,

(i) where the term is 12 months or less, the total estimated contract value for the contract’s duration, or

(ii) where the term exceeds 12 months, the total estimated contract value, including the estimated residual value, or

(b) a contract for an indefinite period, the estimated monthly instalment multiplied by 48. Where there is doubt as to whether the contract is to be a fixed-term contract, a procuring entity shall use the basis for estimating the value of the procurement described in this subparagraph.

8. Where the total estimated maximum value of a procurement over its entire duration is not known, the procurement shall be a covered procurement, unless otherwise excluded under this Agreement

9. All orders under contracts awarded for covered procurements shall be subject to Articles 15.2.1 and 15.2.2.

ARTICLE 15.2 : GENERAL PRINCIPLES

National Treatment and Non-Discrimination

1. Each Party and its procuring entities shall accord unconditionally to the goods and services of the other Party and to the suppliers of the other Party offering the goods or services of that Party, treatment no less favourable than the most favourable treatment the Party or the procuring entity accords to domestic goods, services and suppliers.

2. A procuring entity of a Party may not:

(a) treat a locally established supplier less favourably than other locally established suppliers on the basis of degree of foreign affiliation or ownership; nor

(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.

Procurement Methods

3. A procuring entity may use:

(a) open tendering procedures;

(b) selective tendering procedures, in accordance with Article 15.7.6; and

(c) limited tendering procedures, in accordance with Article 15.8.

Rules of Origin

4. Each Party shall apply to covered procurement of goods the rules of origin that it applies in the normal course of trade to those goods.

Offsets

5. A procuring entity may not seek, take account of, impose, or enforce offsets in the qualification and selection of suppliers, goods, or services, in the evaluation of tenders or in the award of contracts, before or in the course of a covered procurement.

Measures Not Specific to Procurement

6. Paragraphs 1 and 2 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 procurements.

Non-Disclosure of Information

7. Nothing in this Chapter shall be construed as requiring a Party or its procuring entities to disclose, furnish, or allow access to confidential information furnished by a person where such disclosure might prejudice fair competition between suppliers, without the authorization of the person that furnished the information.

ARTICLE 15.3 : PUBLICATION OF PROCUREMENT INFORMATION

1. Each Party shall promptly publish the following information relating to covered procurements, and any changes or additions to this information, in electronic or paper media that are widely disseminated and remain readily accessible to the public:

(a) laws, regulations, procedures, and policy guidelines; and

(b) judicial decisions and administrative rulings of general application.

2. Each Party shall, on request, provide an explanation relating to such information to the requesting Party.

ARTICLE 15.4 : PUBLICATION OF NOTICE OF INTENDED PROCUREMENT

1. For each covered procurement, except in the circumstances described in Articles 15.7.7(a) and (d) and 15.7.8, a procuring entity shall publish a notice inviting interested suppliers to submit tenders (“notice of intended procurement”) or, where appropriate, applications for participation in a procurement. The notice shall be published in electronic or paper media that are widely disseminated and remain readily accessible to the public for the entire period established for tendering.

2. A procuring entity shall include the following information in each notice of intended procurement:

(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;

(b) a description of the procurement and any conditions for participation; and

(c) the address and the time limit for the submission of tenders and, where appropriate, any time limit for the submission of an application for participation in a procurement, and the time frame for the delivery of goods or services.

Notice of Planned Procurement

3. Each Party shall encourage its procuring entities to publish as early as possible in each fiscal year a notice regarding their procurement plans. The notice should include the subject matter of any planned procurement and the estimated date of the publication of the notice of intended procurement. Where the notice is published in accordance with Article 15.5.3(a), a procuring entity may apply Article 15.5.3 for the purpose of establishing shorter time limits for tendering for covered procurements.

ARTICLE 15.5 : TIME LIMITS

1. A procuring entity shall prescribe time limits for tendering that allow suppliers adequate time to submit applications or requests to participate in a covered procurement, including pursuant to Article 15.7.7(b) and (c), and to prepare and submit responsive tenders, taking into account the nature and complexity of the procurement.

2. Except as provided for in paragraphs 3 and 4, a procuring entity shall establish that the final date for the submission of tenders shall not be less than 30 days:

(a) from the date on which the notice of intended procurement is published; or

(b) where the entity has used selective tendering, from the date on which the entity invites suppliers to submit tenders.

3. Under the following circumstances, a procuring entity may establish a time limit for tendering that is less than 30 days, provided that such time limit is sufficiently long to enable suppliers to prepare and submit responsive tenders and is in no case less than ten days:

(a) where the procuring entity published a separate notice, including a notice of planned procurement under Article 15.4.3 at least 30 days and not more than 12 months in advance, and such separate notice contains a description of the procurement, the time limits for the submission of tenders or, where appropriate, applications for participation in a procurement, and the address from which documents relating to the procurement may be obtained;

(b) where the procuring entity procures commercial goods or services;

(c) in the case of second or subsequent publication of notices for procurement of a recurring nature; or

(d) where a state of urgency duly substantiated by the procuring entity renders impracticable the time limits specified in paragraph 1.

4. When a procuring entity publishes a notice of intended procurement in accordance with Article 15.4 in an electronic medium, or, in the case of selective tendering, issues an invitation to tender via an electronic medium and provides, to the extent practicable, the tender documentation via an electronic medium, the procuring entity may reduce the time limit for submission of a tender by up to five days. In no case shall the procuring entity reduce either time limit to less than ten days from the date on which the notice of intended procurement is published.

5. Where a procuring entity intends to limit the submission of tenders to all suppliers that the entity has determined have satisfied the conditions for participation, except where a notice of a multi-use list has been readily accessible in electronic form for a reasonable period, the entity shall include in an invitation to tender the time limit for submitting applications. Any conditions for participation in a tendering procedure shall be published sufficiently in advance to enable interested suppliers of the other Party to initiate and, to the extent that it is compatible with the efficient operation of the procurement process, complete the registration and qualification procedures within the time allowed for tendering.

6. A procuring entity shall require all participating suppliers to submit tenders in accordance with a common deadline. For greater certainty, this requirement also applies where:

(a) as a result of a need to amend information provided to suppliers during the procurement process, the procuring entity extends the time limit for qualification or tendering procedures; or

(b) negotiations are terminated and suppliers are permitted to submit new tenders.

ARTICLE 15.6 : INFORMATION ON INTENDED PROCUREMENTS

Tender Documentation

1. A procuring entity shall promptly provide, on request, to any supplier participating in a covered procurement, 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, such documentation shall include a complete description of:

(a) the procurement, including the nature, scope and, where known, the quantity of the goods or services to be procured and any requirements to be fulfilled, including any technical specifications, conformity certification, plans, drawings, or instructional materials;

(b) any conditions for participation, including any financial guarantees, information, and documents that suppliers are required to submit;

(c) all criteria to be considered in the awarding of the contract;

(d) where there will be a public opening of tenders, the date, time, and place for the opening of tenders; and

(e) any other terms or conditions relevant to the evaluation of tenders.

2. A procuring entity shall promptly reply to any reasonable request for relevant information by a supplier participating in the covered procurement, provided that the procuring entity may not make available information with regard to a specific procurement in a manner that would give a supplier or group of suppliers an advantage over its competitors in the procurement.

Technical Specifications

3. A procuring entity may 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 trade between the Parties.

4. In prescribing the technical specifications for the good or service being procured, a procuring entity shall:

(a) specify the technical specifications, wherever appropriate, in terms of performance and functional requirements, rather than design or descriptive characteristics; and

(b) base the technical specifications on international standards, where such exist and are applicable to the procuring entity, except where the use of an international standard would fail to meet the procuring entity’s program requirements or would impose greater burdens than the use of a recognized national standard.

5. A procuring entity may not prescribe technical specifications that require or refer to a particular trademark or trade name, patent, copyright, design or 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, words such as “or equivalent” are included in the tender documentation.

6. A procuring entity may 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.

7. Notwithstanding paragraph 6, a procuring entity may:

(a) conduct market research in developing specifications for a particular procurement; or

(b) allow a supplier that has been engaged to provide design or consulting services to participate in procurements related to such services, provided it would not give the supplier an unfair advantage over other suppliers.

8. For greater clarity, this Article is not intended to preclude a procuring entity from preparing, adopting, or applying technical specifications to promote the conservation of natural resources and the environment.

Modifications

9. Where, during the course of a covered procurement, a procuring entity modifies the criteria or technical requirements set out in a notice or tender documentation provided to participating suppliers, or amends or reissues a notice or tender documentation, it shall transmit all such modifications or amended or re-issued notice or tender documentation:

(a) to all the suppliers that are participating at the time the information is amended, if known, and in all other cases, in the same manner as the original information; and

(b) in adequate time to allow such suppliers to modify and re-submit their initial tenders, as appropriate.

ARTICLE 15.7 : TENDERING PROCEDURES

Conditions for Participation

1. A Party, and its procuring entities, shall limit any conditions for participation in a covered procurement to those that ensure that a supplier has the legal, commercial, technical, and financial abilities to fulfill the requirements of the procurement.

2. In assessing whether a supplier satisfies the conditions for participation, a procuring entity:

(a) shall evaluate the financial, 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;

(b) may 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 that Party or that the supplier has prior work experience in the territory of that Party;

(c) shall base its determination of whether a supplier has satisfied the conditions for participation solely on the conditions that the procuring entity has specified in advance in notices or tender documentation; and

(d) may require relevant prior experience where essential to meet the requirements of the procurement.

3. Nothing in this Article shall preclude the exclusion of a supplier on grounds such as:

(a) bankruptcy;

(b) false declarations; or

(c) significant deficiencies in performance of any substantive requirement or obligation under a prior contract.

Multi-Use Lists

4. A Party, and its procuring entities, may establish a multi-use list provided that the procuring entity or other government agency annually publishes or otherwise makes available continuously in electronic form a notice inviting interested suppliers to apply for inclusion on the list. The notice shall include:

(a) a description of the goods and services, or categories thereof, for which the list may be used;

(b) the conditions for participation to be satisfied by suppliers and the methods that the procuring entity or other government agency will use to verify a supplier’s satisfaction of the conditions;

(c) the name and address of the procuring entity or other government agency and other information necessary to contact the entity and obtain all relevant documents relating to the list; and

(d) any deadlines for submission of applications for inclusion on that list.

5. A procuring entity or other government agency that maintains a multi-use list shall include on the list all suppliers that satisfy the conditions for participation within a reasonably short time.

Selective Tendering

6.To ensure optimum effective competition under selective tendering procedures, procuring entities shall, for each intended covered procurement, invite tenders from the largest number of domestic suppliers and suppliers of the other Party that is consistent with the efficient operation of the procurement system.

7. A procuring entity applying selective tendering procedures shall use, in accordance with paragraph 6:

(a) a multi-use list, provided such a list is compiled in accordance with the provisions of this Chapter and is appropriate to the type of procurement being undertaken;

(b) a list of suppliers that have responded to a notice inviting suppliers to submit applications for participation in a procurement;

(c) a list of suppliers that have responded to a notice requesting all interested suppliers to express their interest in the procurement, provided that the procuring entity:

(i) publishes a notice requesting any interested supplier to submit an expression of its interest in the procurement and any information requested in the notice; the notice may be the notice of planned procurement under Article 15.4.3 where that notice invited suppliers to express their interest in the procurement; and

(ii) sends an invitation to submit tenders to all the suppliers that expressed an interest in the procurement, unless it has stated in the notice that it may limit the suppliers that it will invite, in accordance with paragraph 8; or

(d) a list of all the suppliers that have been granted a license or that have been determined by the appropriate agency, authority, or organization to comply with specific legal requirements that exist independent of the procurement process, provided that:

(i) the requirement for a license or compliance with specific legal requirements is essential to the conduct of the procurement;

(ii) the complete list of such suppliers is maintained by the appropriate agency, authority, or organization and is available to the procuring entity; and

(iii) the entity invites all the suppliers on the list to submit tenders in the procurement.

8. Provided that relevant requirements and criteria have been specified in advance in a notice or in tender documentation, a procuring entity, in determining the suppliers that will be invited to tender, under paragraphs 7(b) and (c) may:

(a) in assessing technical ability, assess the extent to which the suppliers’ proposals or responses meet the technical and performance specifications of the procurement; and

(b) limit the number of suppliers that it invites to tender based on the rating of the supplier proposals or responses.

9. A procuring entity shall apply the time limits set out in Article 15.5 for responses to the notices referred to in paragraphs 7(b) and (c).

Information on Procuring Entity Decisions

10. Where a supplier applies for participation in a covered procurement, including through a procedure described in paragraphs 7(b) or (c), or for inclusion on a list referred to in paragraph 4, a procuring entity shall promptly advise such supplier of its decision with respect to its application.

11. Where a procuring entity:

(a) rejects an application for participation in a covered procurement, including an application through a procedure described in paragraph 7(b) or (c);

(b) rejects a request for inclusion on a list, referred to in paragraph 4, or

(c) ceases to recognize a supplier as having satisfied the conditions for participation;

the procuring entity shall promptly inform the supplier and, on request of such supplier, promptly provide the supplier with a written explanation of the reasons for its decision.

ARTICLE 15.8 : LIMITED TENDERING

1. Provided that it does not use this provision for the purpose of avoiding competition, to protect domestic suppliers, or in a manner that discriminates against suppliers of the other Party, a procuring entity may contact a supplier or suppliers of its choice and may choose not to apply Articles 15.4 through 15.7, 15.9.1, and 15.9.3 through 15.9.7 in relation to a covered procurement in any of the following circumstances:

(a) where, in response to a prior notice, invitation to participate, or invitation to tender,

(i) no tenders were submitted,

(ii) no tenders were submitted that conform to the essential requirements in the tender documentation, or

(iii) no suppliers satisfied the conditions for participation, and the entity does not substantially modify the essential requirements of the procurement;

(b) where the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute goods or services exist for the following reasons:

(i) the requirement is for works of art;

(ii) the protection of patents, copyrights, or other exclusive rights, or proprietary information; or

(iii) due to an absence of competition for technical reasons;

(c) for additional deliveries of goods or services by the original supplier or authorized representative that are intended either as replacement parts, extensions, or continuing services for existing equipment, software, services, or installations, where a change of supplier would compel the procuring entity to procure goods or services that do not meet requirements of interchangeability with existing equipment;

(d) for goods purchased on a commodity market;

(e) where a procuring entity procures a prototype or a first good or service that is intended for limited trial or that is developed at its request in the course of, and for, a particular contract for research, experiment, study, or original development;

(f) in so far as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseen by the procuring entity, the goods or services could not be obtained in time under tendering procedures consistent with Article 15.4 through 15.7;

(g) for new construction services consisting of the repetition of similar construction services that conform to a basic project for which an initial contract was awarded following use of open tendering or selective tendering in accordance with this Chapter and for which the entity has indicated in the notice of intended procurement concerning the initial construction service, that limited tendering procedures might be used in awarding contracts for those construction services;

(h) for purchases made under exceptionally advantageous conditions that only arise in the very short term, such as from unusual disposals, unsolicited innovative proposals, liquidation, bankruptcy, or receivership and not for routine purchases from regular suppliers; or

(i) in the case of a contract awarded to the winner of a design contest provided that:

(i) the contest has been organized in a manner that is consistent with this Chapter, and

(ii) the contest is judged by an independent jury with a view to a design contract being awarded to the winner.

2. For each contract awarded under paragraph 1, a procuring entity shall prepare a written report that includes:

(a) the name of the procuring entity;

(b) the value and kind of goods or services procured; and

(c) a statement indicating the circumstances and conditions described in paragraph 1 that justify the use of a procedure other than open or selective tendering procedures.

ARTICLE 15.9 : TREATMENT OF TENDERS AND AWARDING OF CONTRACTS

Receipt and Opening of Tenders

1. A procuring entity shall receive and open all tenders under procedures that guarantee the fairness and impartiality of the procurement process.

2. A procuring entity shall treat tenders in confidence. In particular, it shall not provide information to particular suppliers that might prejudice fair competition between suppliers.

3. 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.

4. Where a procuring entity provides suppliers with opportunities to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the procuring entity shall provide the same opportunities to all participating suppliers.

Awarding of Contracts

5. A procuring entity may not consider a tender for award unless, at the time of opening, the tender conforms to the essential requirements of all notices issued during the course of a covered procurement or tender documentation.

6. Unless a procuring entity determines that it is not in the public interest to award a contract, it shall award a contract to the supplier that the entity has determined satisfies the conditions for participation and is fully capable of undertaking the contract and whose tender is determined to be the lowest price, the best value, or the most advantageous, in accordance with the essential requirements and evaluation criteria specified in the notices and tender documentation.

7. A procuring entity may not cancel a covered procurement, nor terminate or modify awarded contracts so as to circumvent the requirements of this Chapter.

Information Provided to Suppliers

8. A procuring entity shall promptly inform suppliers that have submitted tenders of the contract award decision. Subject to Article 15.2.7, a procuring entity shall, on request, provide an unsuccessful supplier with the reasons that the entity did not select its tender.

Publication of Award Information

9. Not later than 60 days after the award of a contract for a covered procurement, a procuring entity shall publish a notice in an officially designated publication, which may be in an electronic or paper medium. The notice shall include at least the following information about the contract:

(a) the name and address of the procuring entity;

(b) a description of the goods or services procured;

(c) the date of award or the contract date;

(d) the contract value;

(e) the name and address of the successful supplier; and

(f) the procurement method used.

Provision of Information to the Other Party

10. On request of the other Party, a Party shall provide information on the tender and evaluation procedures used in the conduct of a covered procurement sufficient to demonstrate that the particular procurement was conducted fairly, impartially, and in accordance with this Chapter. The information shall include, at a minimum, the information specified in Article 15.8.2, and, to the extent necessary and without disclosing confidential information, information on the characteristics and relative advantages of the successful tender and on the contract price.

Maintenance of Records

11. A procuring entity shall maintain records and reports of tendering procedures relating to covered procurements, including the reports provided for in Article 15.8, and shall retain such records and reports for a period of at least three years after the award of a contract.

ARTICLE 15.10 : ENSURING INTEGRITY IN PROCUREMENT PRACTICES

1. Each Party shall ensure that criminal or administrative penalties exist to sanction:

(a) a procurement official of that Party who solicits or accepts, directly or indirectly, any article of monetary value or other benefit, for that procurement official or for another person, in exchange for any act or omission in the performance of that procurement official’s procurement functions;

(b) any person who offers or grants, directly or indirectly, to a procurement official of that Party, any article of monetary value or other benefit, for that procurement official or for another person, in exchange for any act or omission in the performance of his or her procurement functions; and

(c) any person intentionally offering, promising or giving any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign procurement official, for that foreign procurement official or a third party, in order that the foreign procurement official act or refrain from acting in relation to the performance of procurement duties, in order to obtain or retain business or other improper advantage.

ARTICLE 15.11 : DOMESTIC REVIEW OF SUPPLIER CHALLENGES

1. In the event of a complaint by a supplier of a Party that there has been a breach of the other Party’s measures implementing this Chapter in the context of a covered procurement in which the supplier has or had an interest, the Party of the procuring entity shall encourage the supplier to seek resolution of its complaint in consultation with the procuring entity. In such instances the procuring entity shall accord timely and impartial consideration to any such complaint.

2. Each Party shall maintain at least one impartial administrative or judicial authority that is independent of its procuring entities to receive and review challenges that suppliers submit, in accordance with the Party’s law, relating to a covered procurement. Each Party shall ensure that any such challenge not prejudice the supplier’s participation in ongoing or future procurement activities.

3. Where a body other than an authority referred to in paragraph 2 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 that is the subject of the challenge.

4. Each Party shall ensure that the authorities referred to in paragraph 2 have the power to take prompt interim measures, pending the resolution of a challenge, to preserve the supplier’s opportunity to participate in the procurement and to ensure that the procuring entities of the Party comply with its measures implementing this Chapter. Such interim measures may include, where appropriate, suspending the contract award or the performance of a contract that has already been awarded.

5. Each Party shall ensure that its review procedures are conducted in accordance with the following:

(a) a supplier shall be allowed sufficient time to prepare and submit a written challenge, which in no case shall be less than ten days from the time when the basis of the complaint became known or reasonably should have become known to the supplier;

(b) a procuring entity shall respond in writing to a supplier’s complaint and provide all relevant documents to the review authority;

(c) a supplier that initiates a complaint shall be provided an opportunity to reply to the procuring entity’s response before the review authority takes a decision on the complaint; and

(d) the review authority shall provide its decision on a supplier’s challenge in a timely fashion, in writing, with an explanation of the basis for the decision.

ARTICLE 15.12 : EXCEPTIONS

1. Subject to the requirement that such 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 from adopting or maintaining 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 the goods or services of handicapped persons, of philanthropic or not for profit institutions, or of prison labour.

2. The Parties understand that subparagraph 1(b) includes environmental measures necessary to protect human, animal or plant life or health.

ARTICLE 15.13 : MODIFICATIONS AND RECTIFICATIONS TO COVERAGE

1. The Joint Committee shall modify the relevant section of Annex 15-A to reflect any agreed modification, rectification, or minor amendment in the following circumstances:

(a) each Party may make rectifications of a purely formal nature to its coverage under this Chapter, or minor amendments to its Schedules to Section 1, 2, or 3 of Annex 15-A, provided that it notifies the other Party in writing and the other Party does not object in writing within 30 days of the notification. A Party that makes such a rectification or minor amendment need not provide compensatory adjustments.

(b) each Party may otherwise modify its coverage under this Chapter provided that it:

(i) notifies the other Party in writing and that Party does not object in writing within 30 days of the notification; and

(ii) offers within 30 days of the notification compensatory adjustments acceptable to the other Party to maintain a level of coverage comparable to that existing prior to the modification, where necessary.

2. A Party need not provide compensatory adjustments where the Parties agree that the proposed modification covers a procuring entity over which a Party has effectively eliminated its control or influence in respect of procurement by that entity. Where a Party objects to the assertion that such government control or influence has been effectively eliminated, the objecting Party may request further information or consultations with a view to clarifying the nature of any government control or influence and reaching agreement on the procuring entity’s status under this Chapter.

3. Each Party shall continue to encourage increased participation under this Chapter by its regional government entities.

ARTICLE 15.14 : COOPERATION

1. The Parties recognize their shared interest in promoting international liberalization of government procurement markets in the context of the rules-based international trading system, including in the WTO and Asia Pacific Economic Cooperation.

2. Not later than 24 months after the date of entry into force of this Agreement, and at least biennially thereafter, the Joint Commission shall review the operation and implementation of this Chapter.

ARTICLE 15.15 : DEFINITIONS

For the purposes of this Chapter:

1. build-operate-transfer contract and public works concession contract mean any contractual arrangement the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plant, buildings, facilities, or other government owned works and under which, as consideration for a supplier’s execution of a contractual arrangement, a procuring entity grants the supplier, for a specified period of time, temporary ownership or a right to control and operate, and demand payment for the use of such works for the duration of the contract;

2. commercial goods and services mean goods and services of a type of goods and services that are sold or offered for sale to, and customarily purchased by, non-governmental buyers for non-governmental purposes; it includes goods and services with modifications customary in the commercial marketplace, as well as minor modifications not customarily available in the commercial marketplace;

3. conditions for participation means registration, qualification, and other pre-requisites for participation in a procurement;

4. 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;

5. measure, as defined in Article 1.2.15, includes any guidelines;

6. 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;

7. offsets means any conditions or undertakings that require use of domestic content, domestic suppliers, the licensing of technology, technology transfer, investment, counter-trade, or similar actions to encourage local development or to improve a Party’s balance-of-payments accounts;

8. open tendering means a procurement method where all interested suppliers may submit a tender;

9. procurement official means any person who performs procurement functions;

10. procuring entity means an entity listed in Sections 1 through 3 of Annex 15-A;

11. selective tendering means a procurement method where the procuring entity determines the suppliers that it will invite to submit tenders;

12. services includes construction services, unless otherwise specified;

13. supplier means a person that provides or could provide goods or services to a procuring entity; and

14. technical specification means a tendering requirement that:

(a) sets out the characteristics of:

(i) goods to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production; or

(ii) services to be procured, or the processes or methods for their provision, including any applicable administrative provisions; or

(b) addresses terminology, symbols, packaging, marking, or labelling requirements, as they apply to a good or service.

ANNEX 15-A

Section 1: Central Government Entities

1. This Chapter applies to central government entities listed in each Party’s Schedule to this Section where the value of the procurement is estimated, in accordance with Article 15.1.6 and 15.1.7, to equal or exceed:

(a) for procurement of goods and services:
A$81,800 or US$58,550

(b) for procurement of construction services:
A$9,396,000 or US$6,725,000.

The monetary thresholds set out in subparagraphs (a) and (b) shall be adjusted in accordance with Section 8 of this Annex.

Schedule of Australia1,2

1. Agriculture, Fisheries and Forestry Portfolio
Department of Agriculture, Fisheries and Forestry
Dairy Adjustment Authority

2. Attorney-General’s Portfolio
Attorney-General’s Department
Administrative Appeals Tribunal
Australian Crime Commission
Australian Customs Service
Australian Federal Police
AUSTRAC
Classification Board
Classification Review Board
CrimTrac Agency
Family Court of Australia
Federal Court of Australia
Federal Magistrates Court
Human Rights and Equal Opportunity Commission
Insolvency and Trustee Service Australia (ITSA)
National Native Title Tribunal
Office of Film and Literature Classification
Office of Parliamentary Counsel
Office of the Director of Public Prosecutions
Office of the Privacy Commissioner

3. Communications, Information Technology and the Arts Portfolio
Department of Communications, Information Technology and the Arts
National Archives of Australia
Australian Government Information Management Office

4. Defence Portfolio
Department of Defence3
Department of Veterans’ Affairs

5. Education, Science and Training Portfolio
Department of Education, Science and Training
Australian Research Council

6. Employment and Workplace Relations Portfolio
Department of Employment and Workplace Relations
Australian Industrial Registry
Equal Opportunity for Women in the Workplace Agency
Seafarers Safety, Rehabilitation and Compensation Authority (Seacare Authority)

7. Environment and Heritage Portfolio
Department of Environment and Heritage
Australian Greenhouse Office
Bureau of Meteorology
National Oceans Office
Office of the Renewable Energy Regulator

8. Family and Community Services Portfolio
Department of Family and Community Services
Centrelink

9. Finance and Administration Portfolio
Department of Finance and Administration
Australian Electoral Commission
Commonwealth Grants Commission
ComSuper
CSS Board4
PSS Board4

10. Foreign Affairs and Trade Portfolio
Department of Foreign Affairs and Trade
AusAid
Australia-Japan Foundation
Australian Centre for International Agricultural Research

11. Health and Ageing Portfolio
Department of Health and Ageing
Australian Radiation Protection and Nuclear Safety Agency (ARPANSA)
National Blood Authority
Professional Services Review Scheme

12. Immigration and Multicultural and Indigenous Affairs Portfolio
Department of Immigration and Multicultural and Indigenous Affairs
Migration Review Tribunal
Refugee Review Tribunal

13. Industry, Tourism and Resources Portfolio
Department of Industry, Tourism and Resources
Geoscience Australia
IP Australia

14. Prime Minister and Cabinet Portfolio
Department of the Prime Minister and Cabinet
Australian National Audit Office
Australian Public Service Commission
Commonwealth Ombudsman Office
Office of the Inspector-General of Intelligence and Security
Office of the Official Secretary of the Governor-General

15. Transport and Regional Services Portfolio
Department of Transport and Regional Services
National Capital Authority

16. Treasury Portfolio
Department of the Treasury
Australian Bureau of Statistics
Australian Competition and Consumer Commission
Australian Office of Financial Management (AOFM)
Australian Taxation Office
Inspector General of Taxation
National Competition Council
Productivity Commission

17. Parliamentary Departments
Department of the House of Representatives
Department of the Senate
Department of Parliamentary Services

Notes to the Schedule of Australia

1. This Chapter covers only those entities subordinate to the relevant portfolio which are listed in this Schedule.

2. This Chapter does not cover the procurement of motor vehicles by any entity listed in this Section.

3. Department of Defence

(a) This Chapter does not cover the procurement of the following goods due to Article 22.2 (Essential Security):

 

Approximately
equivalent to:  

Weapons FSC 10
Fire Control Equipment FSC 12

Ammunition and Explosives  

FSC 13
Guided Missiles FSC 14

Aircraft and Airframe Structural Components  

FSC 15

Aircraft Components and Accessories  

FSC 16  

Aircraft Launching, Landing, & Ground Handling Equipment  

FSC 17  

Space Vehicles FSC 18
Ships, Small Craft, Pontoons and Floating Docks FSC 19
Ship and Marine Equipment FSC 20

Ground Effect Vehicles, Motor Vehicles, Trailers and Cycles  

FSC 23

Engines, Turbines, and Components  

FSC 28  

Engines Accessories FSC 29
Bearings FSC 31

Water Purification and Sewage Treatment Equipment  

FSC 46  

Valves  

FSC 48  

Maintenance and Repair Shop Equipment  

FSC 49  

Prefabricated Structures and Scaffolding   FSC 54  
Communication, Detection, and Coherent Radiation Equipment  FSC 58

Electrical and Electronic Equipment Components  

FSC 59  

Fiber Optics Materials, Components, Assemblies, and Accessories  

FSC 60  

Electric Wire, and Power and Distribution Equipment  

FSC 61

Alarm, Signal and Security Detection Systems

FSC 63

Instruments and Laboratory Equipment

FSC 66

Specialty Metals

No Code

NB: Whether a good is included within the scope of this Note shall be determined solely according to the descriptions provided in the left column above. U.S. Federal Supply Codes are provided for reference purposes only. (For a complete listing of the United States Federal Supply Codes, to which the Australian categories are approximately equivalent, see: http://www.scrantonrtg.com/secrc/fsc-codes/fsc.html.).

(b) For Australia, this Chapter does not cover the following services, as elaborated in the Common Classification System and the WTO system of classification – MTN.GNS/W/120, due to Article 22.2. (For a complete listing of Common Classification System, see: http://www.tcc.mac.doc.gov/cgibin/doit.cgi?204:66:601961876:49#An1001.1b-2-B.)

    • Design, development, integration, test, evaluation, maintenance, repair, modification, rebuilding and installation of military systems and equipment (approximately equivalent to relevant parts of U.S. Product Service Codes A & J)
    • Operation of Government-owned Facilities (approximately equivalent to U.S. Product Service Code M)
    • Space services (AR, B4 & V3)
    • Services in support of military forces overseas

(c) This Chapter does not cover the procurement of goods and services by, or on behalf of, the Defence Intelligence Organisation, the Defence Signals Directorate, or the Defence Imagery and Geospatial Organisation.

(d) In respect of Article 15.2, the Australian Government reserves the right, pursuant to Article 22.2, to maintain the Australian Industry Involvement program and its successor programs and policies.

4. Department of Finance and Administration This Chapter does not cover procurement by the PSS Board or the CSS Board of investment management, investment advisory, or master custody and safekeeping services for the purposes of managing and investing the assets of the CSS and PSS Funds.

Schedule of the United States 1

    1. Advisory Commission on Intergovernmental Relations
    2. Africa Development Foundation
    3. Alaska Natural Gas Transportation System
    4. American Battle Monuments Commission
    5. Appalachian Regional Commission
    6. Broadcasting Board of Governors
    7. Commission of Fine Arts
    8. Commission on Civil Rights
    9. Commodity Futures Trading Commission
    10. Consumer Product Safety Commission
    11. Corporation for National and Community Service
    12. Delaware River Basin Commission
    13. Department of Agriculture2
    14. Department of Commerce3
    15. Department of Defense4
    16. Department of Education
    17. Department of Energy5
    18. Department of Health and Human Services
    19. Department of Homeland Security6
    20. Department of Housing and Urban Development
    21. Department of the Interior, including the Bureau of Reclamation
    22. Department of Justice
    23. Department of Labor
    24. Department of State
    25. Department of Transportation7
    26. Department of the Treasury
    27. Department of Veterans Affairs
    28. Environmental Protection Agency
    29. Equal Employment Opportunity Commission
    30. Executive Office of the President
    31. Export-Import Bank of the United States
    32. Farm Credit Administration
    33. Federal Communications Commission
    34. Federal Crop Insurance Corporation
    35. Federal Deposit Insurance Corporation
    36. Federal Election Commission
    37. Federal Home Loan Mortgage Corporation
    38. Federal Housing Finance Board
    39. Federal Maritime Commission
    40. Federal Mediation and Conciliation Service
    41. Federal Mine Safety and Health Review Commission
    42. Federal Prison Industries, Inc.
    43. Federal Reserve System
    44. Federal Retirement Thrift Investment Board
    45. Federal Trade Commission
    46. General Services Administration8
    47. Government National Mortgage Association
    48. Holocaust Memorial Council
    49. Inter-American Foundation
    50. Merit Systems Protection Board
    51. National Aeronautics and Space Administration (NASA)
    52. National Archives and Records Administration
    53. National Capital Planning Commission
    54. National Commission on Libraries and Information Science
    55. National Council on Disability
    56. National Credit Union Administration
    57. National Foundation on the Arts and the Humanities
    58. National Labor Relations Board
    59. National Mediation Board
    60. National Science Foundation
    61. National Transportation Safety Board
    62. Nuclear Regulatory Commission
    63. Occupational Safety and Health Review Commission
    64. Office of Government Ethics
    65. Office of the Nuclear Waste Negotiator
    66. Office of Personnel Management
    67. Office of Special Counsel
    68. Office of Thrift Supervision
    69. Overseas Private Investment Corporation
    70. Peace Corps
    71. Pennsylvania Avenue Development Corporation
    72. Railroad Retirement Board
    73. Securities and Exchange Commission
    74. Selective Service System
    75. Small Business Administration
    76. Smithsonian Institution
    77. Susquehanna River Basin Commission
    78. United States Agency for International Development
    79. United States International Trade Commission

Notes to the Schedule of the United States

1. Unless otherwise specified in this Schedule, all agencies subordinate to the listed entities are covered by this Chapter.

2. Department of Agriculture: This Chapter does not cover the procurement of agricultural goods made in furtherance of agricultural support programs or human feeding programs.

3. Department of Commerce: This Chapter does not cover shipbuilding activities of the U.S. National Oceanic and Atmospheric Administration (NOAA).

4. Department of Defense: This Chapter does not cover the procurement of the goods listed below. (For aa complete listing of U.S. Federal Supply Classification, see www.scrantonrtg.com/secrc/fsc-codes/fsc.html.)

     
    (a) FSC 11 Nuclear Ordnance
    FSC 18 Space Vehicles
    FSC 19 Ships, Small Craft, Pontoons, and Floating Docks (the part of this classification defined as naval vessels or major components of the hull or superstructure thereof)
    FSC 20

    Ship and Marine Equipment (the part of this classification defined as naval vessels or major components of the hull or superstructure thereof)

    FSC 2310

     Passenger Motor Vehicles (only Buses)

    FSC 2350

    Combat, Assault & Tactical Vehicles, Tracked

    FSC 5l Hand Tools
    FSC 52 Measuring Tools

    FSC 60

    Fibre Optics Materials, Components, Assemblies, and Accessories

    FSC 8140

     Ammunition & Nuclear Ordnance Boxes, Packages & Special Containers

    FSC 83

    Textiles, Leather, Furs, Apparel, Shoes, Tents, and Flags (all elements other than pins, needles, sewing kits, flagstaffs, flagpoles and flagstaff trucks)

    FSC 84

    Clothing, Individual Equipment, and Insignia (all elements other than sub-class 8460 - luggage)

    FSC 89

    Subsistence (all elements other than sub-class 8975-tobacco products).

    (b)

    “Specialty metals,” defined as steels melted in steel manufacturing facilities located in the United States or its possessions, where the maximum alloy content exceeds one or more of the following limits, must be used in products purchased by the Department of Defense: (1) manganese, 1.65 percent; silicon, 0.60 percent; or copper, 0.60 percent; or which contains more than 0.25 percent of any of the following elements: aluminum, chromium, cobalt, columbium, molybdenum, nickel, titanium, tungsten or vanadium; (2) metal alloys consisting of nickel, iron-nickel and cobalt base alloys containing a total of other alloying metals (except iron) in excess of 10 per cent; (3) titanium and titanium alloys; or (4) zirconium base alloys.

    (c)

    For the United States, this Chapter generally does not cover the procurement of the goods in the following FSC categories, due to application of Article 22.2 (Essential Security):

    FSC 10 Weapons
    FSC 12

    Fire Control Equipment

    FSC 13 Ammunitions and Explosives
    FSC 14

    Guided Missiles

    FSC 15 Aircraft and Airframe Structural Components
    FSC 16 Aircraft Components and Accessories
    FSC 17

    Aircraft Launching, Landing, and Ground Handling Equipment

    FSC 19

    Ships, Small Craft, Pontoons, and Floating Docks

    FSC 20 Ship and Marine Equipment
    FSC 28

    Engines, Turbines, and Components

    FSC 31

    Bearings

    FSC 58

    Communications, Detection, and Coherent Radiation

    FSC 59

    Electrical and Electronic Equipment Components

    FSC 95 Metal Bars, Sheets, and Shapes

5. Department of Energy: This Chapter does not cover national security procurements made in support of safeguarding nuclear materials or technology and entered into under the authority of the Atomic Energy Act, or oil purchases related to the Strategic Petroleum Reserve.

6. Department of Homeland Security:

(a) This Chapter does not cover procurement by the Transportation Security Administration.

(b) The essential security interests of the United States equally apply to the United States Coast Guard.

7. Department of Transportation: This Chapter does not cover procurement by the Federal Aviation Administration.

8. General Services Administration: This Chapter does not cover the procurement of the goods in the following FSC categories:

FSC 5l Hand Tools
FSC 52 Measuring Tools
FSC 7340 Cutlery and Flatware

SECTION 2 : REGIONAL GOVERNMENT ENTITIES

1. This Chapter applies to the regional government entities listed in each Party’s Schedule to this Section where the value of the procurement is estimated, in accordance with Article 15.1.6 and 15.1.7, to equal or exceed:

(a) for procurement of goods and services:
A$666,000 or US$477,000;

(b) for procurement of construction services:
A$9,396,000 or US$6,725,000.

The monetary thresholds set out in paragraph 1 shall be adjusted in accordance with Section 8 of this Annex.

Schedule of Australia

This Chapter covers only those entities specifically listed in this Schedule.

Australian Capital Territory

ACT Auditor-General’s Office
ACT Electoral Commission
ACT Gambling and Racing Commission
ACT Health
ACT Insurance Authority
ACT Planning and Land Authority
ACT Planning and Land Council
ACT Workcover
ACTION
Australia Capital Tourism Corporation
Chief Minister’s Department
Cultural Facilities Corporation
Department of Disability, Housing and Community Services
Department of Education, Youth and Family Services
Department of Justice and Community Safety
Department of Treasury
Department of Urban Services
Director of Public Prosecutions
Environment Commissioner
Human Rights Office
Legal Aid Office
National Exhibition Centre Trust
Ombudsman of the ACT
The Independent Competition and Regulatory Commission

For the entities listed for the Australian Capital Territory, this Chapter does not cover the procurement of health and welfare services, education services, utility services, or motor vehicles.

New South Wales

Agriculture and Fisheries Portfolio
Department of Agriculture
New South Wales Fisheries
Rural Assistance Authority
Safe Food Production
Attorney General and Environment Portfolio
Attorney General’s Department
Department of Environment and Conservation
Legal Aid Commission
Office of the Director of Public Prosecutions
Public Trust Office
Commerce and Industrial Relations Portfolio
Department of Commerce
Motor Accidents Authority
Motor Vehicle Repair Industry Authority
WorkCover Authority
Community Services, Ageing, Disability Services, and Youth Portfolio
Commission for Children and Young People
Department of Ageing, Disability and Home Care
Department of Community Services
Office of the Children’s Guardian
Education and Training and Aboriginal Affairs Portfolio
Aboriginal Housing Office
Department of Aboriginal Affairs
Department of Education and Training
Office of the Board of Studies
Energy and Utilities, Science and Medical Research, and Cancer Portfolio
Ministry for Science and Medical Research
Ministry of Energy, Utilities and Sustainability
Gaming and Racing Portfolio
Department of Gaming and Racing
Health Portfolio
Department of Health
Health Care Complaints Commission
Infrastructure and Planning and Natural Resources Portfolio
Department of Infrastructure, Planning and Natural Resources
Sydney Harbour Foreshore Authority
Justice Portfolio
Department of Corrective Services
Juvenile Justice and Planning Administration Portfolio
Department of Juvenile Justice
Heritage Office
Mineral Resources Portfolio
Department of Mineral Resources
Police Portfolio
Ministry for Police
New South Wales Crime Commission
Police Integrity Commission
Premier, Arts, and Citizenship Portfolio
Community Relations Commission
Ministry for the Arts
Ombudsman’s Office
Parliamentary Counsel’s Office
Premier’s Department
State Electoral Office
The Audit Office of New South Wales
The Cabinet Office
Regional Development and Small Business Portfolio
Department of State and Regional Development
Rural Affairs, Local Government, Emergency Services, and Lands Portfolio
Department of Lands
Department of Local Government
Department of Rural Fire Service
New South Wales Fire Brigades
State Emergency Service
Tourism and Sport and Recreation and Women Portfolio
Department for Women
Department of Tourism, Sport and Recreation
Transport Services and Forests Portfolio
Ministry of Transport
State Forests, Forestry Commission
Treasurer and State Development Portfolio
Sydney Olympic Park Authority
NSW Treasury

1. For the entities listed for New South Wales, this Chapter does not cover the procurement of health and welfare services, education services, or motor vehicles.

2. Australia shall phase-out the non-compliant offset and preference schemes of New South Wales within three years after the date of entry into force of this Agreement.

3. For the entities listed for New South Wales, the Chapter does not apply to procurements undertaken by a covered entity on behalf of a non-covered entity.

Northern Territory

Chief Minister’s Portfolio
Department of the Chief Minister
Auditor General’s Office
Department of Legislative Assembly
Ombudsman’s Office
Remuneration Tribunal
Asian Relations and Trade, Business and Industry, Mines and Energy, Primary Industry and Fisheries and Defence Support Portfolio
Department of Business, Industry and Resource Development
Indigenous Affairs Portfolio
Aboriginal Areas Protection Authority
Arts and Museums, Community Development, Sport and Recreation, Regional Development Portfolio
Department of Community Development, Sport and Cultural Affairs
Museum and Art Galleries
Strehlow Centre Board
Employment, Education and Training Portfolio
Office of the Commissioner for Public Employment
Northern Territory Employment and Training Authority
Work Health Authority
Health, Family and Community Services Portfolio
Department of Health and Community Services
Health and Community Services Complaints Commission
Justice and Attorney –General’s Portfolio
Department of Justice
Lands and Planning Portfolio
Land Development Corporation
Parks and Wildlife Portfolio
Parks and Wildlife Commission of the Northern Territory
Police, Fire and Emergency Services Portfolio
Northern Territory Emergency Service
Northern Territory Fire and Rescue Service
Police Force of the Northern Territory
Racing, Gaming and Licensing Portfolio
Northern Territory Licensing Commission
Racing Commission
Tourism Portfolio
Northern Territory Tourist Commission
Treasury Portfolio
Northern Territory Treasury
Utilities Commission of the Northern Territory

1. For the entities listed for the Northern Territory, this Chapter does not cover set-asides on behalf of the Charles Darwin University pursuant to Partnership Agreements between the Northern Territory Government and Charles Darwin University.

2. Australia shall phase-out the non-compliant parts of its Building Northern Territory Industry Participation program within three years after the date of entry into force of this Agreement.

Queensland

Aboriginal and Torres Strait Islander Policy Portfolio
Department of Aboriginal and Torres Strait Islander Policy
Attorney-General and Justice Portfolio
Department of Justice and Attorney-General
Public Trustee of Queensland
Child Safety Portfolio
Department of Child Safety
Communities and Disability Services Portfolio
Department of Communities and Disability Services Queensland
Deputy Premier, Treasurer and Sport Portfolio
Treasury Department
Government Superannuation Office
Motor Accident Insurance Commission
Nominal Defendant
Office of Economical and Statistical Research
Office of State Revenue
Queensland Office of Gaming and Regulation
Emergency Services Portfolio
Department of Emergency Services
Queensland Ambulance Service
Queensland Fire Service
Environment Portfolio
Environmental Protection Agency
Queensland Parks and Wildlife Service
Local Government, Planning and Women Portfolio
Department of Local Government, Planning, Sport and Recreation
Sport and Recreation Queensland
Office for Women
Natural Resources, Mines and Energy Portfolio
Department of Natural Resources, Mines and Energy
Police and Corrective Services Portfolio
Queensland Police Service
Department of Corrective Services
Premier and Trade Portfolio
Department of the Premier and Cabinet
Office of the Queensland Parliamentary Counsel
Office of Public Sector Merit and Equity
Primary Industries Portfolio
Department of Primary Industries and Fisheries
DPI Forestry
Public Works, Housing and Racing Portfolio
Department of Public Works
Department of Housing
State Development and Innovation Portfolio
Department of State Development and Innovation
Tourism, Fair Trading and Wine Industry Development
Department of Tourism, Fair Trading and Wine Industry Development
Office of Fair Trading
Transport and Main Roads Portfolio
Department of Transport
Department of Main Roads

1. For the entities listed for Queensland, this Chapter does not apply to procurements by covered entities on behalf of non-covered entities.

2. The procurement policies and procedures that are not compliant with the offsets provisions of this Chapter will be made compliant within three years from the date of entry into force of the Agreement.

3. For the entities listed for Queensland, this Chapter does not cover the procurement of health and welfare services, education services, government advertising and motor vehicles.

South Australia
Department of the Premier and Cabinet

Arts SA
Department of Treasury and Finance
Independent Gambling Authority
Department of Trade and Economic Development
Department of Primary Industries and Resources SA
Department of Justice
Attorney-General’s Department
&Department for Correctional Services
Country Fire Services
Courts Administration Authority
Emergency Services Administrative Unit
South Australian Metropolitan Fire Services
South Australian Police Department
State Electoral Office
Auditor-General’s Department
Department of Human Services
Department of Aboriginal Affairs and Reconciliation
Department of Education and Children's Services
Department of Further Education Employment, Science & Technology
SA Tourism Commission
Department for Environment and Heritage
Environment Protection Authority
Department of Water, Land and Biodiversity Conservation
Department of Transport and Urban Planning
Transport Services
Transport Planning
Office of Public Transport Board
Planning SA
Office for Sustainable Social, Environmental and Economic Development
Office of Local Government
Department for Administrative and Information Services
State Supply Board

1. For the entities listed for South Australia, this Chapter does not cover the procurement of health and welfare services, education services, advertising services, or motor vehicles.

2. Any measure providing for inclusion of offsets in procurements will be phased out within three years of the date of entry into force of the Agreement.

Tasmania
Department of Education
Department of Health and Human Services
Department of Infrastructure, Energy and Resources
Department of Justice
Department of Police and Public Safety
Department of Premier and Cabinet
Department of Primary Industries, Water and Environment
Department of Economic Development
Department of Tourism, Parks, Heritage and the Arts
Department of Treasury and Finance
House of Assembly
Legislative Council
Legislature-General
Office of the Governor
Tasmanian Audit Office

For the entities listed for Tasmania, this Chapter does not cover the procurement of health and welfare services, education services, or advertising services.

Victoria
Departments
Department of Education and Training
Department of Innovation Industry and Regional Development
Department of Human Services
Department of Infrastructure
Department of Justice
Department of Premier and Cabinet
Department of Primary Industries
Department of Sustainability and Environment
Department of Treasury and Finance
Department of Victorian Communities

Administrative Offices
Victorian Auditor-General’s Office
Office of Public Prosecutions
Office of the Chief Commissioner of Police
Office of the Ombudsman
Office of the Commissioner for Public Employment
Essential Services Commission
Office of the Legal Ombudsman
Victorian Electoral Commission
Office of the Privacy Commissioner

1. For the entities listed for Victoria, this Chapter does not cover the procurement of motor vehicles.

2. Australia shall phase-out the non-compliant parts of its Victorian Industry Participation Policy within three years after the date of entry into force of this Agreement.

3. For the entities listed for Victoria, this Chapter does not apply to procurements by covered entities on behalf of non-covered entities.

Western Australia
Agriculture; Forestry and Fisheries; The Midwest, Wheatbelt, and Great Southern Portfolio
Department of Agriculture
Rural Business Development Corporation of Western Australia
Department of Fisheries
Mid West Development Commission
Wheatbelt Development Commission
Great Southern Development Commission
Attorney General; Health; Electoral Affairs Portfolio
Office of the Director of Public Prosecutions
Office of the Information Commissioner
Law Reform Commission of Western Australia
Equal Opportunity Commission
Department of Health
Western Australian Electoral Commission
Community Development, Women's Interests, Seniors and Youth; Disability Services; Culture and the Arts Portfolio
Department for Community Development
Disability Services Commission
Department of Culture and the Arts
Consumer and Employment Protection; Indigenous Affairs Portfolio
Department of Consumer and Employment Protection
Department of Indigenous Affairs
Department of the Registrar, Western Australian Industrial Relations Commission
Education and Training Portfolio
Department of Education and Training
Country High Schools Hostels Authority
Curriculum Council of Western Australia
Department of Education Services
Environment Portfolio
Department of Conservation and Land Management
Botanic Gardens and Parks Authority
Department of Environment
Office of Water Policy
Swan River Trust
Water and Rivers Commission
Zoological Gardens Board
Housing and Works; Racing and Gaming; Government Enterprises; Land Information Portfolio
Department of Housing and Works
State Supply Commission of Western Australia
Department of Racing, Gaming and Liquor
Local Government and Regional Development; Heritage; the Kimberley, Pilbara and Gascoyne; Goldfields-Esperance Portfolio
Department of Local Government and Regional Development
Heritage Council of WA
National Trust of Australia (WA)
Kimberley Development Commission
Pilbara Development Commission
Gascoyne Development Commission
Goldfields Esperance Development Commission
Planning and Infrastructure Portfolio
Department for Planning and Infrastructure
Main Roads Western Australia
Western Australian Planning Commission
Public Transport Authority
Department of Land Information
Police and Emergency Services; Justice; Community Safety Portfolio
Fire and Emergency Services Authority of Western Australia
Department of Justice
Office of the Inspector of Custodial Services
Western Australia Police Service
Premier; Public Sector Management; Federal Affairs; Science; Citizenship and Multicultural
Interests Portfolio
Department of the Premier and Cabinet
Governor’s Establishment
Office of the Public Sector Standards Commission
Salaries and Allowances Tribunal
State Development Portfolio
Department of Industry and Resources
Minerals and Energy Research Institute of Western Australia
Tourism; Small Business; Sport and Recreation; Peel and the South West Portfolio
Western Australian Tourism Commission
Small Business Development Corporation
Rottnest Island Authority
Recreation Camps and Reserves Board
Department of Sport and Recreation
Western Australian Sports Centre Trust
Peel Development Commission
South West Development Commission
Treasury; Energy Portfolio
Department of Treasury and Finance
Office of Energy
Perth International Centre for Application of Solar Energy
Parliament
Legislative Assembly
Legislative Council
Office of the Auditor General
Office of the Parliamentary Commissioner for Administrative Investigations
Corruption and Crime Commission
Parliamentary Services Department

Schedule of the United States

This Chapter covers procurement only by those entities listed in this Schedule.

Arkansas
Executive branch agencies, including universities

For the entities listed for Arkansas, this Chapter does not cover procurement by the Office of Fish and Game or construction services.

California
Executive branch agencies

Colorado
Executive branch agencies

Connecticut
Department of Administrative Services
Connecticut Department of Transportation
Connecticut Department of Public Works
Constituent Units of Higher Education

Delaware*
Administrative Services (Central Procurement Agency)
State Universities
State Colleges

Florida*
Executive branch agencies

Georgia
Department of Administrative Services
Georgia Technology Authority

For the entities listed for Georgia, this Chapter does not cover the procurement of beef, compost, or mulch.

Hawaii
Department of Accounting and General Services

For the entities listed for Hawaii, this Chapter does not cover procurement of software developed in the state or construction services.

Idaho
Central Procurement Agency (including all colleges and universities subject to central purchasing oversight)

Kansas
Executive branch agencies

For the entities listed for Kansas, this Chapter does not cover the procurement of construction services, automobiles, or aircraft.

Kentucky
Division of Purchases, Finance and Administration Cabinet

For the entity listed for Kentucky, this Chapter does not cover procurement for construction projects.

Louisiana
Executive branch agencies

Maine*
Department of Administrative and Financial Services
Bureau of General Services (covering state government agencies and school construction)
Maine Department of Transportation

Maryland*
Office of the Treasury
Department of the Environment
Department of General Services
Department of Housing and Community Development
Department of Human Resources
Department of Licensing and Regulation Department of Natural Resources
Department of Personnel
Department of Public Safety and Correctional Services
Department of Transportation

Mississippi
Department of Finance and Administration

For the entities listed for Mississippi, this Chapter does not cover the procurement of services.

Nebraska
Central Procurement Agency

New Hampshire*
Central Procurement Agency

New York*
State agencies
State university system
Public authorities and public benefit corporations

1. For the entities listed for New York, this Chapter does not cover public authorities and public benefit corporations with multi-state mandates.

2. For the entities listed for New York, this Chapter does not cover the procurement of transit cars, buses, or related equipment.

Oregon
Department of Administrative Services

Pennsylvania*
Executive branch agencies, including:
Governor's Office
Department of the Auditor General
Treasury Department
Department of Agriculture
Department of Banking
Pennsylvania Securities Commission
Department of Health
Department of Transportation
Insurance Department
Department of Aging
Department of Correction
Department of Labor and Industry
Department of Military Affairs
Office of Attorney General
Department of General Services
Department of Education
Public Utility Commission
Department of Revenue
Department of State
Pennsylvania State Police
Department of Public Welfare
Fish Commission
Game Commission
Department of Commerce
Board of Probation and Parole
Liquor Control Board
Milk Marketing Board
Lieutenant Governor's Office
Department of Community Affairs
Pennsylvania Historical and Museum Commission
Pennsylvania Emergency Management Agency
State Civil Service Commission
Pennsylvania Public Television Network
Department of Environmental Resources
State Tax Equalization Board
Department of Public Welfare
State Employees' Retirement System
Pennsylvania Municipal Retirement Board
Public School Employees' Retirement System
Pennsylvania Crime Commission
Executive Offices

Rhode Island
Executive branch agencies

For the entities listed for Rhode Island, this Chapter does not cover the procurement of boats, automobiles, buses, or related equipment.

South Dakota
Central Procuring Agency (including universities and penal institutions)

For the entities listed for South Dakota, this Chapter does not cover procurement of beef.

Texas
Texas Building and Procurement Commission

For the entity listed for Texas, this Chapter does not apply to preferences for: (1) motor vehicles; (2) travel agents located in Texas; or (3) rubberized asphalt paving made from scrap tires by a Texas facility.

Utah
Executive branch agencies

Vermont
Executive branch agencies

Washington
Washington State executive branch agencies, including:
General Administration
Department of Transportation
State Universities

For the entities listed for Washington, this Chapter does not cover the procurement of fuel, paper products, boats, ships, or vessels.

Wyoming*
Procurement Services Division
Wyoming Department of Transportation
University of Wyoming

Notes to the Schedule of the United States

1. For the United States regional entities marked by an asterisk (*), indicating pre-existing restrictions, this Chapter does not cover procurement of construction-grade steel (including requirements on subcontracts), motor vehicles, or coal.

2. For the United States regional entities, this Chapter does not apply to preferences or restrictions associated with programs promoting the development of distressed areas or businesses owned by minorities, disabled veterans, or women.

3. Nothing in this Annex shall be construed to prevent any state entity from applying restrictions that promote the general environmental quality in that state, as long as such restrictions are not disguised barriers to international trade.

4. This Chapter does not cover any procurement made by a covered entity on behalf of non-covered entities at a different level of government.

5. For the United States regional entities, this Chapter does not apply to restrictions attached to Federal funds for mass transit and highway projects.

6. For the United States regional entities, this Chapter does not cover the procurement of printing services.

SECTION 3: Government Enterprises

1. This Chapter applies to the government enterprises listed in each Party’s Schedule to this Section where the value of the procurement is estimated, in accordance with Article 15.1.6 and 15.1.7, to equal or exceed:

(a) for procurement of goods and services:

(i) of List A entities, A$409,000 or US$292,751; or

(ii) of List B entities, US$538,000 ; and

(b) for procurement of construction services for List A and List B entities:
A$9,396,000 or US$6,725,000.

The monetary thresholds set out in sub-paragraphs (a) and (b) shall be adjusted in accordance with Section 8 of this Annex.

Schedule of Australia1,2

List A:
1. Aged Care Standards and Accreditation Agency Ltd.
2. Australian Accounting Standards Board
3. Australian Broadcasting Authority
4. Australian Communications Authority
5. Australian Fisheries Management Authority
6. Australian Institute of Criminology
7. Australian Institute of Health and Welfare
8. Australian Institute of Marine Science
9. Australian Law Reform Commission
10. Australian Maritime Safety Authority
11. Australian National Maritime Museum
12. Australian Nuclear Science and Technology Organization
13. Australian Pesticides and Veterinary Medicines Authority
14. Australian Prudential Regulation Authority
15. Australian Securities and Investments Commission
16. Tourism Australia
17. Australian Trade Commission (Austrade)
18. Australian War Memorial3
19. Comcare
20. Commonwealth Scientific and Industrial Research Organisation
21. Corporations and Markets Advisory Committee
22. Export Finance and Insurance Corporation
23. Grains Research and Development Corporation
24. Great Barrier Reef Marine Park Authority
25. Health Insurance Commission
26. Land and Water Resources Research and Development Corporation
27. National Gallery of Australia
28. National Museum of Australia
29. National Occupational Health and Safety Commission
30. Reserve Bank of Australia
31. Sydney Harbour Federation Trust
32. The Director of National Parks
33. The National Institute of Clinical Studies Ltd.

Notes to the Schedule of Australia

1. For the entities listed in Australia’s list A, this Chapter covers only those entities listed in this Schedule.

2. For the entities listed in Australia’s list A, this Chapter does not cover the procurement of motor vehicles.

3. This Chapter does not cover procurement of telecommunications services by the Australian War Memorial.

Schedule of the United States

List A:

1. Tennessee Valley Authority
2. Bonneville Power Administration
3. Western Area Power Administration
4. Southeastern Power Administration
5. Southwestern Power Administration
6. St. Lawrence Seaway Development Corporation

List B:
Rural Utilities Service1

Notes to the Schedule of the United States

1. The Rural Utilities Service shall:

(a) waive federal buy national requirements imposed as conditions of funding for all power generation projects; and

(b) apply procurement procedures equivalent to the procedures in the WTO Agreement on Government Procurement and national treatment to funded projects exceeding the thresholds specified above.

1. For greater clarity, this Chapter does not apply to any other aspect of procurement by the Rural Utilities Service, including any restrictions the Rural Utilities Service places on financing for telecommunications projects.

2. With respect to procurement by entities listed in this Section, this Chapter does not apply to restrictions attached to Federal funds for airport projects.

SECTION 4 : GOODS

This Chapter applies to all goods procured by the entities listed in Sections 1 through 3, unless otherwise specified in this Chapter, including this Annex.

SECTION 5 : SERVICES

This Chapter applies to all services procured by the entities listed in Sections 1 through 3, unless otherwise specified in this Chapter, including this Annex.

Schedule of Australia

This Chapter does not cover the procurement of plasma fractionation services or government advertising services.

Schedule of the United States

This Chapter does not cover the procurement of the following services, as elaborated in the Common Classification System and the WTO system of classification – MTN.GNS/W/120. (For complete listing of Common Classification System, see: http://www.sice.oas.org/trade/nafta/chap-105.asp )

Basic telecommunications network and services listed in paragraph 2C(a) through (g) of WTO document MTN.GNS/W/120, such as public voice and data services. This exclusion does not include information services, as defined in 47 United States Code (USC) 153(20). See http://www.gpoaccess.gov/uscode/search.html .

J. Maintenance, Repair, Modification, Rebuilding and Installation of Goods/ Equipment
J019 Maintenance, Repair, Modification, Rebuilding and Installation of Equipment Related to Ships

J998 Non-nuclear Ship Repair

M. Operation of Government-Owned Facilities:
All facilities operated by the Department of Defense, Department of Energy, and the
National Aeronautics and Space Administration; and
for all entities in Section 1 through Section 3: M180 Research and Development
facilities

S. Utilities: All Classes

V. Transportation, Travel and Relocation Services: All Classes except V503 Travel Agent Services

Note to the Schedule of the United States

1. This Chapter does not cover the procurement of any service in support of military forces overseas.

SECTION 6: CONSTRUCTION SERVICES

This Chapter applies to all construction services procured by the entities listed in Sections 1 through 3, unless otherwise specified in this Chapter, including this Annex.

Schedule of the United States

This Chapter does not cover the procurement of dredging services.

Note to Section 6

1. Buy national requirements on articles, supplies, or materials acquired for use in construction services contracts covered by this Chapter shall not apply to goods of either Party.

SECTION 7: GENERAL NOTES

Unless otherwise specified herein, the following General Notes in each Party’s Schedule apply without exception to this Chapter, including to all sections of this Annex.

Schedule of Australia

This Chapter does not apply to:

(a) any form of preference to benefit small and medium enterprises;

(b) measures to protect national treasures of artistic, historic, or archaeological value;

(c) measures for the health and welfare of indigenous people; and

(d) measures for the economic and social advancement of indigenous people.

Schedule of the United States

1. This Chapter does not apply to set asides on behalf of small or minority businesses. Setasides include any form of preference, such as the exclusive right to provide a good or service and price preferences.

2. Where a contract is to be awarded by an entity that is not listed in Section 1, 2 or 3, this Chapter shall not be construed as covering any good or service component of that contract.

3. This Chapter does not apply to the procurement of transportation services that form a part of, or are incidental to, a procurement contract.

SECTION 8: THRESHOLD ADJUSTMENT FORMULA

1. The thresholds in Sections 1 through 3 shall be adjusted at two-year intervals with each adjustment taking effect in January, beginning on January 1, 2006.

2. With regard to thresholds for goods and services in Section 1 and for goods and services for List A entities referred to in Section 3, the U.S. dollar value for each threshold shall be calculated every two years, based on the U.S. inflation rate measured by the Producer Price Index for Finished Goods published by the U.S. Bureau of Labor Statistics, using the two-year time that ends on October 31 in the year prior to the adjustment taking effect, and using the following formula:

T1 = T0 x (1+ i)

T0 = threshold value at base period
i = accumulated U.S. inflation rate for the “i”th two year-period
T1 = new threshold value; and

3. The thresholds for goods and services in Section 2, for goods and services for List B entities in Section 3, and for construction services in Sections 1 through 3 are conversions into U.S. dollars of the thresholds listed in the U.S. Appendix 1 to the WTO Agreement on Government Procurement, which are set out in Special Drawing Rights (SDRs) and listed below. Adjustments of these thresholds shall be calculated, based on an average of the daily conversion rates of the U.S. dollar in terms of SDRs published by the IMF in its monthly "International Financial Statistics", for the two-year period preceding October 1 or November 1 of the year before the adjusted thresholds are to take effect:

(a) 5 million SDRs for construction services;

(b) 355,000 SDRs for goods and services for Section 2 entities; and

(c) 400,000 SDRs for goods and services for Section 3 List B entities.

4. The U.S. dollar value of the adjusted thresholds shall be converted into the Australian dollar based on the official conversion rate of the Reserve Bank of Australia, using the average of the daily values of the Australian dollar in terms of the U.S. dollar over the two-year period ending September 30 in the year prior to the adjustments taking effect, and rounded to the nearest thousand Australian dollars;

5. Each Party shall notify the other Party of the adjusted thresholds in their respective currencies; and

6. The Parties shall consult if a major change in a national currency vis-ŕ-vis the other currency were to create a significant problem with regard to the application of the Chapter.

CHAPTER SIXTEEN

ELECTRONIC COMMERCE

ARTICLE 16.1 : GENERAL

The Parties recognise the economic growth and opportunity that electronic commerce provides, the importance of avoiding barriers to its use and development, and the applicability of the WTO Agreement to measures affecting electronic commerce.

ARTICLE 16.2 : ELECTRONIC SUPPLY OF SERVICES

For greater certainty, the Parties affirm that measures affecting the supply of a service delivered or performed electronically are subject to the obligations contained in the relevant provisions of Chapters Ten (Cross-Border Trade in Services), Eleven (Investment), and Thirteen (Financial Services), subject to any exceptions applicable to such obligations and to the non-conforming measures described in Articles 10.6 (Non-Conforming Measures), 11.13 (Non-Conforming Measures), or 13.9 (Non-Conforming Measures).

ARTICLE 16.3 : CUSTOMS DUTIES

Neither Party may impose customs duties, fees, or other charges16-1 on or in connection with the importation or exportation of digital products, regardless of whether they are fixed on a carrier medium or transmitted electronically.

ARTICLE 16.4 : NON-DISCRIMINATORY TREATMENT OF DIGITAL PRODUCTS

1. Neither Party may accord less favourable treatment to some digital products than it accords to other like digital products:

(a) on the basis that the digital products receiving less favourable treatment are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms outside its territory;

(b) on the basis that the author, performer, producer, developer, or distributor of such digital products is a person of the other Party or a non-Party; or

(c) so as to otherwise afford protection to other like digital products that are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in its territory.

2. Neither Party may accord less favourable treatment to digital products:16-2

(a) created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of the other Party than it accords to like digital products created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of a non-Party, or

(b) whose author, performer, producer, developer, or distributor is a person of the other Party than it accords to like digital products whose author, performer, producer, developer, or distributor is a person of a non-Party.

3. Paragraphs 1 and 2 do not apply to:

(a) non-conforming measures adopted or maintained in accordance with Articles 10.6, 11.13, or 13.9;

(b) the extent that they are inconsistent with Chapter Seventeen (Intellectual Property Rights);

(c) subsidies or grants that a Party provides to a service or service supplier, including government-supported loans, guarantees, and insurance; and

(d) services supplied in the exercise of governmental authority, as defined in Article 1.2.22 (Definitions).

4. For greater clarity, paragraphs 1 and 2 do not prevent a Party from adopting or maintaining measures, including measures in the audio-visual and broadcasting sectors, in accordance with its reservations to Chapters Ten and Eleven.

ARTICLE 16.5 : AUTHENTICATION AND DIGITAL CERTIFICATES

1. Neither Party may adopt or maintain legislation for electronic authentication that would

(a) prohibit parties to an electronic transaction from mutually determining the appropriate authentication methods for that transaction; or

(b) prevent parties from having the opportunity to prove in court that their electronic transaction complies with any legal requirements with respect to authentication.

2. Each Party shall work towards the recognition at the central level of government of digital certificates issued by the other Party or under authorisation of that Party.

ARTICLE 16.6 : ONLINE CONSUMER PROTECTION

The Parties recognise the importance of maintaining and adopting transparent and effective measures to protect consumers from fraudulent and deceptive commercial practices when they engage in electronic commerce.

ARTICLE 16.7 : PAPERLESS TRADE ADMINISTRATION

1. Each Party shall endeavour to make all trade administration documents available to the public in electronic form.

2. Each Party shall endeavour to accept trade administration documents submitted electronically as the legal equivalent of the paper version of such documents.

ARTICLE 16.8 : DEFINITIONS

For the purposes of this Chapter:

1. authentication means the process or act of establishing the identity of a party to an electronic communication or transaction or ensuring the integrity of an electronic communication;

2. carrier medium means any physical object capable of storing a digital product, by any method now known or later developed, and from which a digital product can be perceived, reproduced, or communicated, directly or indirectly, including an optical medium, floppy disk, and magnetic tape;

3. digital certificate means an electronic document or file that is issued or otherwise linked to a party to an electronic communication or transaction for the purpose of establishing the party’s identity, authority, or other attribute;

4. digital products means the digitally encoded form of computer programs, text, video, images, sound recordings, and other products,16-3 regardless of whether they are fixed on a carrier medium or transmitted electronically;16-4

5. electronic transmission or transmitted electronically means the transfer of digital products using any electromagnetic or photonic means; and

6. trade administration documents means forms that a Party issues or controls that must be completed by or for an importer or exporter in connection with the import or export of goods.

CHAPTER SEVENTEEN

INTELLECTUAL PROPERTY RIGHTS

ARTICLE 17.1 : GENERAL PROVISIONS

1. Each Party shall, at a minimum, give effect to this Chapter. A Party may provide more extensive protection for, and enforcement of, intellectual property rights under its law than this Chapter requires, provided that the additional protection and enforcement is not inconsistent with this Agreement.

International Agreements

2. Each Party affirms that it has ratified or acceded to the following agreements, as revised and amended:

(a) the Patent Cooperation Treaty (1970);

(b) the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974);

(c) the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989);

(d) the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1980);

(e) the International Convention for the Protection of New Varieties of Plants (1991);

(f) the Trademark Law Treaty (1994);

(g) the Paris Convention for the Protection of Industrial Property (1967) (the Paris Convention); and

(h) the Berne Convention for the Protection of Literary and Artistic Works (1971) (the Berne Convention).

3. Further to Article 1.1.2 (General), the Parties affirm their rights and obligations with respect to each other under the TRIPS Agreement.

4. Each Party shall ratify or accede to the WIPO Copyright Treaty (1996) and the WIPO Performances and Phonograms Treaty (1996) by the date of entry into force of this Agreement, subject to the fulfilment of their necessary internal requirements.

5. Each Party shall make its best efforts to comply with the provisions of the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs (1999), and the Patent Law Treaty (2000), subject to the enactment of laws necessary to apply those provisions in its territory.

National Treatment

6. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals17-1 of the other Party treatment no less favourable than it accords to its own nationals with regard to the protection17-2 and enjoyment of such intellectual property rights and any benefits derived from such rights. With respect to secondary uses of phonograms by means of analogue communications and free over-the-air radio broadcasting, however, a Party may limit the rights of the performers and producers of the other Party to the rights its persons are accorded in the territory of the other Party.

7. A Party may derogate from paragraph 6 in relation to its judicial and administrative procedures, including requiring a national of the other Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that such derogation is:

(a) necessary to secure compliance with laws and regulations that are not inconsistent with this Chapter; and

(b) not applied in a manner that would constitute a disguised restriction on trade.

8. Paragraph 6 does not apply to procedures provided in multilateral agreements concluded under the auspices of World Intellectual Property Organization (WIPO) in relation to the acquisition or maintenance of intellectual property rights.

Application of Agreement to Existing Subject Matter

9. Except as it provides otherwise, including Article 17.4.5, this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement, that is protected on that date in the territory of the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter.

10. Except as otherwise provided in this Chapter, including Article 17.4.5, a Party shall not be required to restore protection to subject matter that on the date of entry into force of this Agreement has fallen into the public domain in the territory of the Party where the protection is claimed.

Application of Agreement to Prior Acts

11. This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement.

Transparency

12. Further to Article 20.2 (Publication), and with the object of making its protection and enforcement of intellectual property rights as transparent as possible, each Party shall ensure that all laws, regulations, and procedures concerning the protection or enforcement of intellectual property rights shall be in writing and shall be published,17-3 or where such publication is not practicable, made publicly available, in a national language in such a manner as to enable governments and right holders to become acquainted with them.

ARTICLE 17.2 : TRADEMARKS , INCLUDING GEOGRAPHICAL INDICATIONS

1. Each Party shall provide that marks17-4 shall include marks in respect of goods and services, collective marks, and certification marks. Each Party shall also provide that geographical indications are eligible for protection as marks.17-5

2. Neither Party may require, as a condition of registration, that marks be visually perceptible, nor may a Party deny registration of a mark solely on the ground that the sign of which it is composed is a sound or a scent.17-6

3. Each Party shall ensure that its measures mandating the use of the term customary in common language as the common name for a good or service (“common name”) including, inter alia, requirements concerning the relative size, placement, or style of use of the mark in relation to the common name, do not impair the use or effectiveness of marks used in relation to such goods or services.

4. Each Party shall provide that the owner of a registered mark shall have the exclusive right to prevent all third parties not having the owner’s consent from using in the course of trade identical or similar signs, including geographical indications, for goods or services that are related to those goods or services in respect of which the owner’s mark is registered, where such use would result in a likelihood of confusion. In case of the use of an identical sign, including a geographical indication, for identical goods or services, a likelihood of confusion shall be presumed.

5. Each Party may provide limited exceptions to the rights conferred by a mark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interest of the owner of the mark and of third parties.

6. Article 6bis of the Paris Convention shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known mark,17-7 whether registered or not, provided that use of that mark in relation to those goods or services would indicate a connection between those goods or services and the owner of the mark, and provided that the interests of the owner of the mark are likely to be damaged by such use.

7. Recognising the importance of registration systems for marks that provide rights of presumptive validity, through the conduct of examination as to substance as well as to formalities, and through opposition and cancellation procedures, each Party shall provide a system for the registration of marks, which shall include:

(a) providing to the applicant a communication in writing, which may be electronic, of the reasons for any refusal to register a mark;

(b) an opportunity for the applicant to respond to communications from the authorities responsible for registration of marks, to contest an initial refusal, and to appeal judicially any final refusal to register;

(c) an opportunity for interested parties to oppose the registration of a mark or to seek cancellation of a mark after it has been registered; and

(d) a requirement that decisions in opposition or cancellation proceedings be reasoned and in writing.

8. Each Party shall provide:

(a) a system for the electronic application, processing, registration, and maintenance of marks; and

(b) a publicly available electronic database, including an on-line database, of applications for marks and registrations.

9. Each Party shall provide that initial registration and each renewal of registration of a mark shall be for a term of no less than ten years.

10. Neither Party may require recordal of licences for marks.

11. Each Party shall endeavour to reduce differences in law and practice between the Parties’ respective systems for the protection of marks, including differences that affect the cost to users. In addition, each Party shall endeavour to participate in international trademark harmonisation efforts, including the WIPO fora dealing with reform and development of the international trademark system.

12.

(a) Each Party shall provide a system that permits owners to assert rights in marks, and interested parties to challenge rights in marks, through administrative or judicial means, or both.

(b) Consistent with sub-paragraph (a), where a Party provides the means to apply for protection or petition for recognition of geographical indications, through a system for the protection of marks or otherwise, it shall accept such applications and petitions without the requirement for intercession by a Party on behalf of its nationals, and shall:

(i) process applications or petitions, as relevant, for geographical indications with a minimum of formalities;

(ii) make its regulations governing filing of such applications or petitions, as relevant, readily available to the public;

(iii) ensure that applications or petitions, as relevant, for geographical indications are published for opposition, and provide procedures for opposing geographical indications that are the subject of applications or petitions. Each Party shall also provide procedures to cancel any registration resulting from an application or a petition;

(iv) ensure that measures governing the filing of applications or petitions, as relevant, for geographical indications set out clearly the procedures for these actions. These procedures shall include contact information sufficient for applicants or petitioners, as relevant, to obtain specific procedural guidance regarding the processing of those applications or petitions; and

(v) provide that grounds for refusing an application for protection or recognition of a geographical indication include the following:

(A) the geographical indication is likely to cause confusion with a mark that is the subject of a good-faith pending application or registration; and

(B) the geographical indication is likely to cause confusion with a preexisting mark, the rights to which have been acquired through use in good faith in the territory of the Party.

ARTICLE 17.3 : DOMAIN NAMES ON THE INTERNET

1. In order to address trademark cyber-piracy, each Party shall require that the management of its country-code top-level domain (ccTLD) provide an appropriate procedure for the settlement of disputes, based on the principles established in the Uniform Domain-Name Dispute-Resolution Policy.

2. Each Party shall require that the management of its ccTLD provide online public access to a reliable and accurate database of contact information for domain-name registrants.

ARTICLE 17.4 : COPYRIGHT

1. Each Party shall provide17-8 that the following have the right to authorise or prohibit17-9 all reproductions, in any manner or form, permanent or temporary (including temporary storage in material form):

(a) authors, in respect of their works;

(b) performers, in respect of their performances;17-10 and

(c) producers of phonograms, in respect of their phonograms.17-11

2. Each Party shall provide to authors, performers, and producers of phonograms the right to authorise or prohibit the making available to the public of the original and copies17-12 of their works, performances, and phonograms through sale or other transfer of ownership.17-13

3. In order to ensure that no hierarchy is established between rights of authors, on the one hand, and rights of performers and producers of phonograms, on the other hand, each Party shall provide that in cases where authorisation is needed from both the author of a work embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorisation of the author does not cease to exist because the authorisation of the performer or producer is also required. Likewise, each Party shall provide that in cases where authorisation is needed from both the author of a work embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorisation of the performer or producer does not cease to exist because the authorisation of the author is also required.

4. Each Party shall provide that, where the term of protection of a work (including a photographic work), performance, or phonogram is to be calculated:

(a) on the basis of the life of a natural person, the term shall be not less than the life of the author and 70 years after the author’s death; and

(b) on a basis other than the life of a natural person, the term shall be:

(i) not less than 70 years from the end of the calendar year of the first authorised publication of the work, performance, or phonogram; or

(ii) failing such authorised publication within 50 years from the creation of the work, performance, or phonogram, not less than 70 years from the end of the calendar year of the creation of the work, performance, or phonogram.

5. Each Party shall apply Article 18 of the Berne Convention and Article 14.6 of the TRIPS Agreement, mutatis mutandis, to the subject matter, rights, and obligations in this Article and Articles 17.5 and 17.6.

6.

(a) Each Party shall provide that for copyright, any person acquiring or holding any economic right in a work, performance, or phonogram:

(i) may freely and separately transfer that right by contract; and

(ii) by virtue of a contract, including contracts of employment underlying the creation of works, performances, and phonograms, shall be able to exercise that right in that person’s own name and enjoy fully the benefits derived from that right.

(b) Each Party may establish measures to give effect to the measures specified in Article 14ter of the Berne Convention.

7.

(a) In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers, and producers of phonograms use in connection with the exercise of their rights and that restrict unauthorised acts in respect of their works, performances, and phonograms, each Party shall provide that any person who:

(i) knowingly, or having reasonable grounds to know, circumvents without authority any effective technological measure that controls access to a protected work, performance, or phonogram, or other subject matter; or

(ii) manufactures, imports, distributes, offers to the public, provides, or otherwise traffics in devices, products, or components, or offers to the public, or provides services that:

(A) are promoted, advertised, or marketed for the purpose of circumvention of any effective technological measure;

(B) have only a limited commercially significant purpose or use other than to circumvent any effective technological measure; or

(C) are primarily designed, produced, or performed for the purpose of enabling or facilitating the circumvention of any effective technological measure,

shall be liable and subject to the remedies specified in Article 17.11.13. Each Party shall provide for criminal procedures and penalties to be applied where any person is found to have engaged wilfully and for the purposes of commercial advantage or financial gain in any of the above activities. Each Party may provide that such criminal procedures and penalties do not apply to a non-profit library, archive, educational institution, or public non-commercial broadcasting entity.

(b) Effective technological measure means any technology, device, or component that, in the normal course of its operation, controls access to a protected work, performance, phonogram, or other protected subject matter, or protects any copyright.

(c) In implementing sub-paragraph (a), neither Party shall be obligated to require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as the product does not otherwise violate any measures implementing sub-paragraph (a).

(d) Each Party shall provide that a violation of a measure implementing this paragraph is a separate civil or criminal offence and independent of any infringement that might occur under the Party’s copyright law.

(e) Each Party shall confine exceptions to any measures implementing sub-paragraph (a) to the following activities, which shall be applied to relevant measures in accordance with sub-paragraph (f):

(i) non-infringing reverse engineering activities with regard to a lawfully obtained copy of a computer program, carried out in good faith with respect to particular elements of that computer program that have not been readily available to the person engaged in those activities, for the sole purpose of achieving interoperability of an independently created computer program with other programs;

(ii) non-infringing good faith activities, carried out by an appropriately qualified researcher who has lawfully obtained a copy, unfixed performance, or display of a work, performance, or phonogram and who has made a good faith effort to obtain authorisation for such activities, to the extent necessary for the sole purpose of identifying and analysing flaws and vulnerabilities of technologies for scrambling and descrambling of information;

(iii) the inclusion of a component or part for the sole purpose of preventing the access of minors to inappropriate online content in a technology, product, service, or device that itself is not prohibited under the measures implementing sub-paragraph (a)(ii);

(iv) non-infringing good faith activities that are authorised by the owner of a computer, computer system, or computer network for the sole purpose of testing, investigating, or correcting the security of that computer, computer system, or computer network;

(v) non-infringing activities for the sole purpose of identifying and disabling a capability to carry out undisclosed collection or dissemination of personally identifying information reflecting the online activities of a natural person in a way that has no other effect on the ability of any person to gain access to any work;

(vi) lawfully authorised activities carried out by government employees, agents, or contractors for law enforcement, intelligence, essential security, or similar governmental purposes;

(vii) access by a non-profit library, archive, or educational institution to a work, performance, or phonogram not otherwise available to it, for the sole purpose of making acquisition decisions; and

(viii) non-infringing uses of a work, performance, or phonogram in a particular class of works, performances, or phonograms, when an actual or likely adverse impact on those non-infringing uses is credibly demonstrated in a legislative or administrative review or proceeding; provided that any such review or proceeding is conducted at least once every four years from the date of conclusion of such review or proceeding.

(f) The exceptions to any measures implementing sub-paragraph (a) for the activities set forth in sub-paragraph (e) may only be applied as follows, and only to the extent that they do not impair the adequacy of legal protection or the effectiveness of legal remedies against the circumvention of effective technological measures:

(i) any measures implementing sub-paragraph (a)(i) may be subject to exceptions with respect to each activity set forth in sub-paragraph (e);

(ii) any measures implementing sub-paragraph (a)(ii), as they apply to effective technological measures that control access to a work, performance, or phonogram, may be subject to exceptions with respect to activities set forth in sub-paragraph (e)(i), (ii), (iii), (iv), and (vi); and

(iii) any measures implementing sub-paragraph (a)(ii), as they apply to effective technological measures that protect any copyright, may be subject to exceptions with respect to the activities set forth in subparagraph (e)(i) and (vi).

8. In order to provide adequate and effective legal remedies to protect rights management information:

(a) each Party shall provide that any person who without authority, and knowing, or, with respect to civil remedies, having reasonable grounds to know, that it would induce, enable, facilitate, or conceal an infringement of any copyright:

(i) knowingly removes or alters any rights management information;

(ii) distributes or imports for distribution rights management information knowing that the rights management information has been removed or altered without authority; or

(iii) distributes to the public, imports for distribution, broadcasts, communicates, or makes available to the public copies of works, performances, or phonograms, knowing that rights management information has been removed or altered without authority,

shall be liable and subject to the remedies specified in Article 17.11.13. Each Party shall provide for criminal procedures and penalties to be applied where any person is found to have engaged wilfully and for purposes of commercial advantage or financial gain in any of the above activities. Each Party may provide that these criminal procedures and penalties do not apply to a non-profit library, archive, educational institution, or public non-commercial broadcasting entity;

(b) each Party shall confine exceptions to measures implementing sub-paragraph (a) to lawfully authorised activities carried out by government employees, agents, or contractors for the purpose of law enforcement, intelligence, essential security, or similar government purposes;

(c) rights management information means:

(i) electronic information that identifies a work, performance, or phonogram; the author of the work; the performer of the performance; the producer of the phonogram; or the owner of any right in the work, performance, or phonogram; or

(ii) electronic information about the terms and conditions of the use of the work, performance, or phonogram; or

(iii) any electronic numbers or codes that represent such information,

when any of these items is attached to a copy of the work, performance, or phonogram or appears in connection with the communication or making available of a work, performance, or phonogram to the public. Nothing in this paragraph shall obligate a Party to require the owner of any right in the work, performance, or phonogram to attach rights management information to copies of the work, performance, or phonogram, or to cause rights management information to appear in connection with a communication of the work, performance, or phonogram to the public.

9. Each Party shall provide appropriate laws, orders, regulations, government issued guidelines, or administrative or executive decrees providing that its central government agencies not use infringing computer software and only use computer software as authorised in the relevant licence. These measures shall provide for the regulation of the acquisition and management of software for such government use and may take the form of procedures such as those under which an agency prepares and maintains inventories of software present on the agency’s computers and inventories of software licenses.

10. With respect to Articles 17.4, 17.5, and 17.6:

(a) each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder;

(b) notwithstanding sub-paragraph (a) and Article 17.6.3(b), neither Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorisation of the right holder or right holders, if any, of the content of the signal and of the signal;

(c) unless otherwise specifically provided in this Chapter, nothing in this Article shall be construed as reducing or extending the scope of applicability of the limitations and exceptions permitted under the agreements referred to in Articles 17.1.2 and 17.1.4 and the TRIPS Agreement.

ARTICLE 17.5 : COPYRIGHT WORKS

Without prejudice to Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii), and 14bis(1) of the Berne Convention, each Party shall provide to authors the exclusive right to authorise or prohibit the communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.

ARTICLE 17.6 : PERFORMERS AND PRODUCERS OF PHONOGRAMS

1. Each Party shall accord the rights provided for in this Chapter with respect to performers and producers of phonograms to the performers and producers of phonograms who are nationals of the other Party and to performances first fixed or phonograms first fixed or first published in the territory of the other Party. A performance or phonogram shall be considered first published in the territory of a Party in which it is published within 30 days of its original publication.17-14

2. Each Party shall provide to performers the right to authorise or prohibit:

(a) the broadcasting and communication to the public of their unfixed performances, except where the performance is already a broadcast performance; and

(b) the fixation of their unfixed performances.

3.

(a) Each Party shall provide to performers and producers of phonograms the right to authorise or prohibit the broadcasting or any communication to the public of their performances or phonograms by wire or wireless means, including the making available to the public of those performances and phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.

(b) Notwithstanding sub-paragraph (a) and Article 17.4.10, the application of this right to traditional free over-the-air (i.e., non-interactive) broadcasting, and exceptions or limitations to this right for such broadcasting activity, shall be a matter of each Party’s law.

(c) Each Party may adopt limitations to this right in respect of other non-interactive transmissions in accordance with Article 17.4.10, provided that the limitations do not prejudice the right of the performer or producer of phonograms to obtain equitable remuneration.

4. Neither Party may subject the enjoyment and exercise of the rights of performers and producers of phonograms provided for in this Chapter to any formality.

5. For the purposes of this Article and Article 17.4, the following definitions apply with respect to performers and producers of phonograms:

(a) broadcasting means the transmission to the public by wireless means or satellite of sounds or sounds and images, or representations thereof, including wireless transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organisation or with its consent; “broadcasting” does not include transmissions over computer networks or any transmissions where the time and place of reception may be individually chosen by members of the public;

(b) communication to the public of a performance or a phonogram means the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For the purposes of paragraph 3, communication to the public includes making the sounds or representations of sounds fixed in a phonogram audible to the public;

(c) fixation means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device;

(d) performers means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore;

(e) phonogram means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work;

(f) producer of a phonogram means the person who, or the legal entity which, takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds; and

(g) publication of a performance or a phonogram means the offering of copies of the performance or the phonogram to the public, with the consent of the right holder, and provided that copies are offered to the public in reasonable quantity.

ARTICLE 17.7 : PROTECTION OF ENCRYPTED PROGRAMME-CARRYING SATELLITE SIGNALS

1. Each Party shall make it a criminal offence:

(a) to manufacture, assemble, modify, import, export, sell, lease, or otherwise distribute a tangible or intangible device or system, knowing or having reason to know that the device or system is primarily of assistance in decoding an encrypted programme-carrying satellite signal without the authorisation of the lawful distributor of such signal; and

(b) wilfully to receive and make use of, or further distribute, a programme-carrying signal that originated as an encrypted programme-carrying satellite signal knowing that it has been decoded without the authorisation of the lawful distributor of the signal.

2. Each Party shall provide for civil remedies, including compensatory damages, for any person injured by any activity described in paragraph 1, including any person that holds an interest in the encrypted program-carrying signal or its content.

ARTICLE 17.8 : DESIGNS

1. Each Party shall maintain protection for industrial designs that provides a right of presumptive validity and shall endeavour to simplify and streamline its administrative system for the benefit of users.

2. Each Party shall endeavour to reduce differences in law and practice between the Parties’ industrial design systems. In addition, each Party shall endeavour to participate in international activities concerning industrial designs, including those ongoing within WIPO.

ARTICLE 17.9 : PATENTS

1. Each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application. The Parties confirm that patents shall be available for any new uses or methods of using a known product. For the purposes of this Article, a Party may treat the terms “inventive step” and “capable of industrial application” as synonymous with the terms “non-obvious” and “useful”, respectively.

2. Each Party may only exclude from patentability:

(a) inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal, or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by law; and

(b) diagnostic, therapeutic, and surgical methods for the treatment of humans and animals.

3. A Party may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.

4. Each Party shall provide that the exclusive right of the patent owner to prevent importation of a patented product, or a product that results from a patented process, without the consent of the patent owner shall not be limited by the sale or distribution of that product outside its territory, at least where the patentee has placed restrictions on importation by contract or other means.

5. Each Party shall provide that a patent may only be revoked on grounds that would have justified a refusal to grant the patent, or on the basis of fraud, misrepresentation, or inequitable conduct.

6. Consistent with paragraph 3, if a Party permits a third person to use the subject matter of a subsisting patent to generate information necessary to support an application for marketing approval of a pharmaceutical product, that Party shall provide that any product produced under such authority shall not be made, used, or sold in the territory of that Party other than for purposes related to generating information to meet requirements for marketing approval for the product, and if the Party permits exportation, the product shall only be exported outside the territory of that Party for purposes of meeting marketing approval requirements of that Party.

7. A Party shall not permit the use17-15 of the subject matter of a patent without the authorisation of the right holder except in the following circumstances:

(a) to remedy a practice determined after judicial or administrative process to be anticompetitive under the Party’s laws relating to prevention of anti-competitive practices;17-16 or

(b) in cases of public non-commercial use, or of national emergency, or other circumstances of extreme urgency, provided that:

(i) the Party shall limit such use to use by the government or third persons authorised by the government;

(ii) the Party shall ensure that the patent owner is provided with reasonable compensation for such use; and

(iii) the Party may not require the patent owner to provide undisclosed information or technical know-how related to a patented invention that has been authorised for use in accordance with this paragraph.

8.

(a) If there are unreasonable delays in a Party’s issuance of patents, that Party shall provide the means to, and at the request of a patent owner, shall, adjust the term of the patent to compensate for such delays. An unreasonable delay shall at least include a delay in the issuance of a patent of more than four years from the date of filing of the application in the Party, or two years after a request for examination of the application has been made, whichever is later. For the purposes of this paragraph, any delays that occur in the issuance of a patent due to periods attributable to actions of the patent applicant or any opposing third person need not be included in the determination of such delay.

(b) With respect to a pharmaceutical product17-17 that is subject to a patent, each Party shall make available an adjustment of the patent term to compensate the patent owner for unreasonable curtailment of the effective patent term as a result of the marketing approval process.

9. Each Party shall disregard information contained in public disclosures used to determine if an invention is novel or has an inventive step if the public disclosure, (a) was made or authorised by, or derived from, the patent applicant and (b) occurs within 12 months prior to the date of filing of the application in the territory of the Party.

10. Each Party shall provide patent applicants with at least one opportunity to make amendments, corrections, and observations in connection with their applications.

11. Each Party shall provide that a disclosure of a claimed invention shall be considered to be sufficiently clear and complete if it provides information that allows the invention to be made and used by a person skilled in the art, without undue experimentation, as of the filing date.

12. Each Party shall provide that a claimed invention is sufficiently supported by its disclosure if the disclosure reasonably conveys to a person skilled in the art that the applicant was in possession of the claimed invention, as of the filing date.

13. Each Party shall provide that a claimed invention is useful if it has a specific, substantial, and credible utility.

14. Each Party shall endeavour to reduce differences in law and practice between their respective systems, including in respect of differences in determining the rights to an invention, the prior art effect of applications for patents, and the division of an application containing multiple inventions. In addition, each Party shall endeavour to participate in international patent harmonisation efforts, including the WIPO fora addressing reform and development of the international patent system.

15. Each Party shall endeavour to establish a cooperative framework between their respective patent offices as a basis for progress towards the mutual exploitation of search and examination work.

ARTICLE 17.10 : MEASURES RELATED TO CERTAIN REGULATED PRODUCTS

1.

(a) If a Party requires, as a condition of approving the marketing of a new pharmaceutical product, the submission of undisclosed test or other data concerning safety or efficacy of the product, the Party shall not permit third persons, without the consent of the person who provided the information, to market the same or a similar product on the basis of that information, or the marketing approval granted to the person who submitted such information, for at least five years from the date of marketing approval by the Party.

(b) If a Party requires, as a condition of approving the marketing of a new agricultural chemical product, including certain new uses of the same product, the submission of undisclosed test or other data concerning safety or efficacy of that product, the Party shall not permit third persons, without the consent of the person who provided the information, to market the same or a similar product on the basis of that information, or the marketing approval granted to the person who submitted such information, for ten years from the date of the marketing approval of the new agricultural chemical product by the Party.

(c) If a Party permits, as a condition of approving the marketing of a new pharmaceutical or agricultural chemical product, third persons to submit evidence concerning the safety or efficacy of a product that was previously approved in another territory, such as evidence of prior marketing approval, the Party shall not permit third persons, without the consent of the person who previously submitted information concerning safety or efficacy, to market the same or a similar product on the basis of evidence of prior marketing approval in another territory, or information concerning safety or efficacy that was previously submitted to obtain marketing approval in another territory, for at least five years, and ten years for agricultural chemical products, from the date of marketing approval by the Party, or the other territory, whichever is late.17-18

(d) For the purposes of this Article, a new product is one that does not contain a chemical entity that has been previously approved for marketing in the Party.

(e) If any undisclosed information concerning the safety or efficacy of a product submitted to a government entity, or entity acting on behalf of a government, for the purposes of obtaining marketing approval is disclosed by a government entity, or entity acting on behalf of a government, each Party is required to protect such information from unfair commercial use in the manner set forth in this Article.

2. With respect to pharmaceutical products, if a Party requires the submission of: (a) new clinical information (other than information related to bioequivalency) or (b) evidence of prior approval of the product in another territory that requires such new information, which is essential to the approval of a pharmaceutical product, the Party shall not permit third persons not having the consent of the person providing the information to market the same or a similar pharmaceutical product on the basis of the marketing approval granted to a person submitting the information for a period of at least three years from the date of the marketing approval by the Party or the other territory, whichever is later.17-19

3. When a product is subject to a system of marketing approval in accordance with paragraph 1 or 2, as applicable, and is also subject to a patent in the territory of that Party, the Party shall not alter the term of protection that it provides pursuant to paragraph 1 or 2 in the event that the patent protection terminates on a date earlier than the end of the term of protection specified in paragraph 1 or 2, as applicable.

4. Where a Party permits, as a condition of approving the marketing of a pharmaceutical product, persons, other than the person originally submitting the safety or efficacy information, to rely on evidence or information concerning the safety or efficacy of a product that was previously approved, such as evidence of prior marketing approval by the Party or in another territory:

(a) that Party shall provide measures in its marketing approval process to prevent those other persons from:

(i) marketing a product, where that product is claimed in a patent; or

(ii) marketing a product for an approved use, where that approved use is claimed in a patent,

during the term of that patent, unless by consent or acquiescence of the patent owner; and

(b) if the Party permits a third person to request marketing approval to enter the market with:

(i) a product during the term of a patent identified as claiming the product; or

(ii) a product for an approved use, during the term of a patent identified as claiming that approved use,

the Party shall provide for the patent owner to be notified of such request and the identity of any such other person.

ARTICLE 17.11 : ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS

General obligations

1. For greater clarity, the obligations specified in this Article are limited to the enforcement of intellectual property rights, or, if mentioned, a particular intellectual property right.

2. Each Party shall provide that final judicial decisions or administrative rulings for the enforcement of intellectual property rights that under the Party’s law are of general applicability shall be in writing and shall state any relevant findings of fact and the reasoning, or the legal basis on which the decisions or rulings are based. Each Party shall provide that such decisions or rulings shall be published17-20 or, where such publication is not practicable, otherwise made available to the public, in a national language in such a manner as to enable governments and right holders to become acquainted with them.

3. Each Party shall inform the public of its efforts to provide effective enforcement of intellectual property rights in its civil, administrative, and criminal system, including any statistical information that the Party may collect for such purpose.

4. In civil, criminal, and if applicable, administrative procedures, involving copyright, each Party shall provide for a presumption that, in the absence of evidence to the contrary, the person whose name is indicated in the usual manner is the right holder in the work, performance, or phonogram as designated. Each Party shall also provide for a presumption, in the absence of evidence to the contrary, of all the factual elements necessary to establish under its law that copyright subsists in such subject matter.

Civil and Administrative Procedures and Remedies

5. Each Party shall make available to right holders17-21 civil judicial procedures concerning the enforcement of any intellectual property right.

6. Each Party shall provide that:

(a) in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer to pay the right holder:

(i) damages adequate to compensate for the injury the right holder has suffered as a result of the infringement; and

(ii) at least in the case of copyright infringement and trademark counterfeiting, the profits of the infringer that are attributable to the infringement and that are not taken into account in computing the amount of the damages referred to in clause (i).

(b) in determining damages for infringement of intellectual property rights, its judicial authorities shall consider, inter alia, any legitimate measure of the value of the infringed on good or service that the right holder submits, including the suggested retail price.

7.

(a) In civil judicial proceedings, each Party shall, at least with respect to works, phonograms, and performances protected by copyright, and in cases of trademark counterfeiting, establish or maintain pre-established damages, which shall be available on the election of the right holder. Such pre-established damages shall be in an amount sufficient to constitute a deterrent to future infringements and to compensate fully the right holder for the harm caused by the infringement.

(b) As an alternative to the requirements in sub-paragraph (a) with respect to both copyright and to trademark counterfeiting, a Party may maintain a system of additional damages in civil judicial proceedings involving infringement of copyright in works, phonograms, and performances; provided that if such additional damages, while available, are not regularly awarded in proceedings involving deliberate acts of infringement where needed to deter infringement, that Party shall promptly ensure that such damages are regularly awarded or establish a system of pre-established damages as specified in sub-paragraph (a) with respect to copyright infringement.

8. Each Party shall provide that its judicial authorities shall have the authority to order, at the conclusion of civil judicial proceedings at least for copyright infringement and trademark counterfeiting, that the prevailing party be awarded payment of court costs or fees and reasonable attorney’s fees by the losing party.17-22 Further, each Party shall provide that its judicial authorities, at least in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings concerning patent infringement, that the prevailing party be awarded payment of reasonable attorney’s fees by the losing party.

9. In civil judicial proceedings concerning copyright infringement and trademark counterfeiting, each Party shall provide that its judicial authorities shall have the authority to order the seizure of suspected infringing goods, any related materials and implements, and, at least for trademark counterfeiting, documentary evidence relevant to the infringement.

10. Each Party shall provide that:

(a) in civil judicial proceedings, at the right holder’s request, goods that have been found to be pirated or counterfeit in breach of a copyright or trademark of the right holder shall be destroyed, except in exceptional circumstances;17-23

(b) its judicial authorities shall have the authority to order that materials and implements that have been used in the manufacture or the creation of such pirated or counterfeit goods be, without compensation of any sort, promptly destroyed or, in exceptional circumstances, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to minimise the risks of further infringements; and

(c) in regard to counterfeit trademarked goods, the simple removal of the trademark unlawfully affixed shall not be sufficient to permit the release of goods into the channels of commerce.

11. Each Party shall provide that in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to order the infringer to provide any information that the infringer possesses regarding any person involved in any aspect of the infringement and regarding the means of production or distribution channel of the infringing material, and to provide this information to the right holder’s representative in the proceedings.17-24

12. Each Party shall provide that in judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to:

(a) fine or imprison, in appropriate cases, a party to litigation who fails to abide by valid orders issued by such authorities; and

(b) impose sanctions on parties to litigation, their counsel, experts, or other persons subject to the court’s jurisdiction, for violation of judicial orders regarding the protection of confidential information produced or exchanged in a proceeding.

13.

(a) In civil judicial proceedings concerning the acts described in Article 17.4.7 and 17.4.8, each Party shall provide that its judicial authorities shall have the authority to order or award at least:

(i) provisional measures, including the seizure of devices and products suspected of being involved in the proscribed activity;

(ii) damages of the type available for infringement of copyright;

(iii) payment to the prevailing party of court costs and fees and reasonable attorney’s fees;17-25 and

(iv) destruction of devices and products found to be involved in the proscribed activity.

(b) A Party may provide that damages shall not be available against a non-profit library, archive, education institution, or public non-commercial broadcasting entity that sustains the burden of proving that it was not aware or had no reason to believe that its acts constituted a proscribed activity.

14. Each Party shall provide that its judicial authorities shall have the authority to enjoin a party to a civil judicial proceeding from the exportation of goods that are alleged to infringe an intellectual property right.

15. If a Party’s judicial or other authorities appoint technical or other experts in civil judicial proceedings concerning the enforcement of intellectual property rights, and require that the parties to litigation or other civil or criminal proceedings bear the costs of such experts, the Party should seek to ensure that these costs are reasonable and related appropriately to, inter alia, the quantity and nature of work to be performed and do not unreasonably deter recourse to such litigation or proceeding.

Provisional measures

16. Each Party’s authorities shall act on requests for relief inaudita altera parte expeditiously in accordance with the Party’s judicial rules.

17. With respect to provisional measures, each Party shall provide that its judicial authorities shall have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant’s right is being infringed or that such infringement is imminent, and to order the applicant to provide a reasonable security or equivalent assurance set at a level sufficient to protect the respondent and to prevent abuse, and so as not to unreasonably deter recourse to such procedures.

18. In proceedings concerning the grant of provisional measures in relation to enforcement of a patent, each Party shall provide for a rebuttable presumption that the patent is valid.

Special requirements related to border measures

19. Each Party shall provide that any right holder initiating procedures for that Party’s customs authorities to suspend the release of suspected counterfeit17-26 or confusingly similar trademark goods, or pirated copyright goods,17-27 into free circulation is required to provide adequate evidence to satisfy the competent authorities, administrative or judicial that, under the laws of the territory of importation, there is prima facie an infringement of the right holder's intellectual property right and to supply sufficient information that may reasonably be expected to be within the right holder’s knowledge to make the suspected goods reasonably recognisable by the Party’s customs authorities. The requirement to provide sufficient information shall not unreasonably deter recourse to these procedures. Each Party shall provide that the application to suspend the release of goods shall remain in force for a period of not less than one year from the date of application or the period that the good is protected by copyright or the relevant trademark is registered, whichever is shorter.

20. Each Party shall provide that its competent authorities shall have the authority to require a right holder initiating procedures to suspend the release of goods suspected of being counterfeit trademark or pirated copyright goods to provide a reasonable security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Each Party shall provide that such security or equivalent assurance shall not unreasonably deter recourse to these procedures. Each Party may provide that such security may be in the form of a documentary guarantee conditioned to hold the importer or owner of the imported merchandise harmless from any loss or damage resulting from any suspension of the release of goods in the event the competent authorities determine that the article is not an infringing good.

21. Where its competent authorities have made a determination that goods are counterfeit or pirated, a Party shall provide that its competent authorities have the authority to inform the right holder of the names and addresses of the consignor, the importer, and the consignee, and of the quantity of the goods in question.

22. Each Party shall provide that its customs authorities may initiate border measures ex officio with respect to imported merchandise suspected of infringing being counterfeit trademark or pirated copyright goods, without the need for a specific formal complaint.

23. Each Party shall provide that goods that have been suspended from release by its customs authorities, and that have been forfeited as pirated or counterfeit, shall be destroyed, except in exceptional cases. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient to permit the release of the goods into the channels of commerce. In no event shall the competent authorities be authorised to permit the exportation of counterfeit or pirated goods that have been seized, nor shall they be authorised to permit such goods to be subject to movement under customs control, except in exceptional circumstances.

24. Each Party shall provide that where an application fee or merchandise storage fee is assessed in connection with border measures to enforce a trademark or copyright, the fee shall not be set at an amount that unreasonably deters recourse to these measures.

25. Each shall provide the other, on mutually agreed terms, with technical advice on the enforcement of border measures concerning intellectual property rights, and the Parties shall promote bilateral and regional cooperation on such matters.

Criminal procedures and remedies

26.

(a) 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. Wilful copyright piracy on a commercial scale includes:

(i) significant wilful infringements of copyright, that have no direct or indirect motivation of financial gain; and

(ii) wilful infringements for the purposes of commercial advantage or financial gain.

(b) Each Party shall treat wilful importation or exportation17-28 of pirated copyright goods or of counterfeit trademark goods as unlawful activities subject to criminal penalties to at least the same extent as trafficking or distributing such goods in domestic commerce.

27. In cases of wilful trademark counterfeiting or copyright piracy on a commercial scale, each Party shall provide:

(a) penalties that include imprisonment and monetary fines sufficiently high to provide a deterrent to infringement consistent with a policy of removing the monetary incentive of the infringer. Also, each Party shall encourage its judicial authorities to impose fines at levels sufficient to provide a deterrent to future infringements;

(b) that its judicial authorities shall have the authority to order the seizure of suspected counterfeit or pirated goods, any related materials and implements that have been used in the commission of the offence, any assets traceable to the infringing activity, and any documentary evidence relevant to the offence;17-29

(c) that its judicial authorities shall have the authority, among other measures, to order the forfeiture of any assets traceable to the infringing activity for at least indictable offences, and shall, except in exceptional circumstances, order the forfeiture and destruction of all goods found to be counterfeit or pirated, and, at least with respect to wilful copyright piracy, order the forfeiture and destruction of materials and implements that have been used in the creation of the infringing goods. Each Party shall further provide that such forfeiture and destruction shall occur without compensation to the defendant; and

(d) that the appropriate authorities, as determined by each Party, shall have the authority to initiate criminal legal action ex officio with respect to the offences described in this Chapter without the need for a formal complaint by a private party or right holder.

28. Each Party shall provide for criminal procedures and penalties for the knowing transport, transfer, or other disposition of, in the course of trade, or the making or obtaining control of, with intent to so transport, transfer, or otherwise dispose of, in the course of trade, to another for anything of value:

(a) either false or counterfeit labels affixed or designed to be affixed to, at least the following:

(i) a phonogram;

(ii) a copy of a computer program or documentation;

(iii) the packaging for a computer program; or

(iv) a copy of a motion picture or other audiovisual work; or

(b) counterfeit documentation or packaging for a computer program where the documentation or packaging has been made or obtained without the authorisation of the right holder.

Limitations on liability for service providers

29. Consistent with Article 41 of the TRIPS Agreement, for the purposes of providing enforcement procedures that permit effective action against any act of copyright infringement covered under this Chapter, including expeditious remedies to prevent infringements and criminal and civil remedies, each Party shall provide, consistent with the framework specified in this Article:

(a) legal incentives for service providers to cooperate with copyright owners in deterring the unauthorised storage and transmission of copyrighted materials; and

(b) limitations in its law regarding the scope of remedies available against service providers for copyright infringements that they do not control, initiate, or direct, and that take place through systems or networks controlled or operated by them or on their behalf, as set forth in this sub-paragraph.17-30

(i) These limitations shall preclude monetary relief and provide reasonable restrictions on court-ordered relief to compel or restrain certain actions for the following functions, and shall be confined to those functions:17-31

(A) transmitting, routing, or providing connections for material without modification of its content, or the intermediate and transient storage of such material in the course thereof;

(B) caching carried out through an automatic process;

(C) storage at the direction of a user of material residing on a system or network controlled or operated by or for the service provider; and

(D) referring or linking users to an online location by using information location tools, including hyperlinks and directories.

(ii) These limitations shall apply only where the service provider does not initiate the chain of transmission of the material and does not select the material or its recipients (except to the extent that a function described in clause (i)(D) in itself entails some form of selection).

(iii) Qualification by a service provider for the limitations as to each function in clause (i)(A) through (D) shall be considered separately from qualification for the limitations as to each other function, in accordance with the conditions for qualification set forth in clauses (iv) through (vii).

(iv) With respect to function referred to in clause (i)(B), the limitations shall be conditioned on the service provider:

(A) permitting access to cached material in significant part only to users of its system or network who have met conditions on user access to that material;

(B) complying with rules concerning the refreshing, reloading, or other updating of the cached material when specified by the person making the material available online in accordance with a relevant industry standard data communications protocol for the system or network through which that person makes the material available that is generally accepted in the Party’s territory;

(C) not interfering with technology used at the originating site consistent with industry standards generally accepted in the Party’s territory to obtain information about the use of the material, and not modifying its content in transmission to subsequent users; and

(D) expeditiously removing or disabling access, on receipt of an effective notification of claimed infringement, to cached material that has been removed or access to which has been disabled at the originating site.

(v) With respect to functions referred to in clause (i)(C) and (D), the limitations shall be conditioned on the service provider:

(A) not receiving a financial benefit directly attributable to the infringing activity, in circumstances where it has the right and ability to control such activity;

(B) expeditiously removing or disabling access to the material residing on its system or network on obtaining actual knowledge of the infringement or becoming aware of facts or circumstances from which the infringement was apparent, such as through effective notifications of claimed infringement in accordance with clause (ix); and

(C) publicly designating a representative to receive such notifications.

(vi) Eligibility for the limitations in this sub-paragraph shall be conditioned on the service provider:

(A) adopting and reasonably implementing a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers; and

(B) accommodating and not interfering with standard technical measures accepted in the Party’s territory that protect and identify copyrighted material, that are developed through an open, voluntary process by a broad consensus of copyright owners and service providers, that are available on reasonable and non-discriminatory terms, and that do not impose substantial costs on service providers or substantial burdens on their systems or networks.

(vii) Eligibility for the limitations in this subparagraph may not be conditioned on the service provider monitoring its service, or affirmatively seeking facts indicating infringing activity, except to the extent consistent with such technical measures.

(viii) If the service provider qualifies for the limitations with respect to the function referred to in clause (i)(A), court-ordered relief to compel or restrain certain actions shall be limited to terminating specified accounts, or to taking reasonable steps to block access to a specific, non-domestic online location. If the service provider qualifies for the limitations with respect to any other function in clause (i), court-ordered relief to compel or restrain certain actions shall be limited to removing or disabling access to the infringing material, terminating specified accounts, and other remedies that a court may find necessary provided that such other remedies are the least burdensome to the service provider among comparably effective forms of relief. Each Party shall provide that any such relief shall be issued with due regard for the relative burden to the service provider and harm to the copyright owner, the technical feasibility and effectiveness of the remedy, and whether less burdensome, comparably effective enforcement methods are available. Except for orders ensuring the preservation of evidence, or other orders having no material adverse effect on the operation of the service provider’s communications network, each Party shall provide that such relief shall be available only where the service provider has received notice and an opportunity to appear before the judicial authority.

(ix) For the purposes of the notice and take down process for the functions referred to in clause (i)(C) and (D), each Party shall establish appropriate procedures for effective notifications of claimed infringement, and effective counter-notifications by those whose material is the subject of a notice for removal or disabling, on the basis of a good faith belief that it was issued by mistake or misidentification in accordance with clause (v)(B). Each Party shall also provide for monetary remedies against any person who makes a knowing material misrepresentation in a notification or counter-notification that causes injury to any interested party as a result of a service provider relying on the misrepresentation.

(x) If the service provider removes or disables access to material in good faith based on claimed or apparent infringement, each Party shall provide that the service provider shall be exempted from liability for any resulting claims, provided that, in the case of material residing on its system or network, it takes reasonable steps promptly to notify the person making the material available on its system or network that it has done so and, if such person makes an effective counter-notification and is subject to jurisdiction in an infringement suit, to restore the material online unless the person giving the original effective notification seeks judicial relief within a reasonable time.

(xi) Each Party shall provide for an administrative or judicial procedure enabling copyright owners who have given effective notification of claimed infringement to obtain expeditiously from a service provider information in its possession identifying the alleged infringer.

(xii) For the purposes of the function referred to in clause (i)(A), service provider means a provider of transmission, routing, or connections for digital online communications without modification of their content between or among points specified by the user of material of the user’s choosing, and for the purposes of the functions referred to in clause (i)(B) through (D), service provider means a provider or operator of facilities for online services or network access.

ARTICLE 17.12 : TRANSITIONAL PROVISIONS

Recognizing that Australian law currently restricts making and distributing devices or providing services to circumvent effective technological measures, Australia shall fully implement the obligations set forth in Article 17.4.7 within two years of the date of entry into force of this Agreement. In the interim, Australia may not adopt any new measure that is less consistent with Article 17.4.7 or apply any new or existing measure so as to reduce the level of protection provided on the date of entry into force of this Agreement.

CHAPTER EIGHTEEN

LABOUR

ARTICLE 18.1: STATEMENT OF SHARED COMMITMENT

1. The Parties reaffirm their obligations as members of the International Labour Organization (ILO) and their commitments under the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up (1998) (ILO Declaration). Each Party shall strive to ensure that such labour principles and the internationally recognised labour principles and rights set forth in Article 18.7 are recognised and protected by its law.

2. Recognizing the right of each Party to establish its own labour standards, and to adopt or modify accordingly its labour laws, each Party shall strive to ensure that its laws provide for labour standards consistent with the internationally recognised labour principles and rights set forth in Article 18.7 and shall strive to improve those standards consistent with the goal of maintaining high quality and high productivity workplaces.

ARTICLE 18.2: APPLICATION AND ENFORCEMENT OF LABOUR LAWS

1.

(a) A Party shall not fail to effectively enforce its labour laws, through a sustained or recurring course of action or inaction, in a manner affecting trade between the Parties, after the date of entry into force of this Agreement.

(b) The Parties recognise that each Party retains the right to exercise discretion with respect to investigatory, prosecutorial, regulatory, and compliance matters and to make decisions regarding the allocation of resources to enforcement with respect to other labour matters determined to have higher priority. Accordingly, the Parties understand that a Party is in compliance with subparagraph (a) where a course of action or inaction reflects a reasonable exercise of such discretion, or results from a bona fide decision regarding the allocation of resources.

2. The Parties recognise that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in their respective labour laws. Accordingly, each Party shall strive to ensure that it does not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such laws in a manner that weakens or reduces adherence to the internationally recognised labour principles and rights referred to in Article 18.7 as an encouragement for trade with the other Party, or as an encouragement for the establishment, acquisition, expansion, or retention of an investment in its territory.

ARTICLE 18.3: PROCEDURAL GUARANTEES AND PUBLIC AWARENESS

1. Each Party shall ensure that persons with a legally recognised interest under its law in a particular matter have appropriate access to administrative, quasi-judicial, judicial, or labour tribunals for the enforcement of the Party’s labour laws.

2. Each Party shall ensure that the proceedings of its administrative, quasi-judicial, judicial, or labour tribunals for the enforcement of its labour laws are fair, equitable, and transparent.

3. Each Party shall provide that the parties to such proceedings may seek remedies to ensure the enforcement of their rights under its labour laws.

4. Each Party shall promote public awareness of its labour laws by ensuring that information is available to the public regarding its labour laws and enforcement and compliance procedures. A Party may use a variety of means available for this purpose, such as publishing information and notices in official bulletins and the mass media, publishing and distributing information manuals, undertaking compliance assistance programs, conducting meetings, and making information available through the Internet.

5. For greater certainty, nothing in this Chapter shall be construed as calling for the examination under this Agreement of whether a Party’s court has appropriately applied that Party’s labour laws.

ARTICLE 18.4: INSTITUTIONAL ARRANGEMENTS

1. In carrying out its functions, the Joint Committee established under Chapter 21 (Institutional Arrangements and Dispute Settlement) shall consider matters related to the operation of this Chapter and the pursuit of the Chapter’s objectives. The Joint Committee may establish a Subcommittee on Labour Affairs, comprised of central government officials of each Party who are primarily responsible for labour or workplace relations, and officials of other appropriate agencies, to meet at such times as they deem appropriate to discuss the operation of this Chapter. Each meeting of the Subcommittee normally shall include a public session.

2. Each Party shall designate an office within its central government agency that deals with labour or workplace relations, which shall serve as a contact point with the other Party, and with the public, for the purposes of this Chapter. Each Party’s contact point shall:

(a) provide for the submission, receipt, and consideration of public communications on matters related to this Chapter, make the communications available to the other Party and, as appropriate, to the public, and review the communications, as appropriate, in accordance with its procedures; and

(b) coordinate the development and implementation of cooperative activities under Article 18.5.

3. Each Party may consult with representatives of its labour and business organizations and other persons, including through its advisory committees, for advice on the operation of this Chapter by whatever means that Party considers appropriate.

4. Each formal decision of the Parties concerning the operation of this Chapter shall be made public, unless the Joint Committee decides otherwise.

ARTICLE 18.5: LABOUR COOPERATION

1. Recognizing that cooperation provides opportunities to promote respect for workers’ rights and the rights of children consistent with core labour standards of the ILO, the Parties shall cooperate on labour matters of mutual interest and explore ways to further advance labour standards on a bilateral, regional, and multilateral basis. To that end, the Parties hereby establish a consultative mechanism for such cooperation.

2. Cooperative activities may include work on labour law and practice in the context of the ILO Declaration, and such other matters as the Parties agree. In identifying areas for cooperation, the Parties shall consider the views of their respective worker and employer representatives and other persons, as appropriate.

3. Cooperative activities may take the form of exchanges of information, joint research activities, visits, or conferences, and such other forms of technical exchange as the Parties may agree.

ARTICLE 18.6: LABOUR CONSULTATIONS

1. A Party may request consultations with the other Party regarding any matter arising under this Chapter. Unless the Parties agree otherwise, consultations shall commence within 30 days after a Party delivers a request for consultations to the other Party’s contact point designated pursuant to Article 18.4.2.

2. The Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter and may seek advice or assistance from any person or body they deem appropriate.

3. If the consultations fail to resolve the matter, either Party may request that the Subcommittee on Labour Affairs be convened. The Subcommittee shall convene within 30 days after a Party delivers a request to the other Party’s contact point, unless the Parties otherwise agree. If the Joint Committee has not established the Subcommittee as of the date a Party delivers a request, they shall do so during the 30-day period described in this paragraph. The Subcommittee shall endeavour to resolve the matter expeditiously, including, where appropriate, by consulting governmental or outside experts and having recourse to such procedures as good offices, conciliation, or mediation.

4. If a Party considers that the other Party has failed to carry out its obligations under Article 18.2.1(a), the Party may request consultations under paragraph 1 or pursuant to Article 21.5 (Consultations).

(a) If a Party requests consultations pursuant to Article 21.5 at a time when the Parties are engaged in consultations on the same matter under paragraph 1 or the Subcommittee is endeavouring to resolve the matter under paragraph 3, the Parties shall discontinue their efforts to resolve the matter under this Article. Once consultations have begun under Article 21.5, no consultations on the same matter may be entered into under this Article.

(b) If a Party requests consultations pursuant to Article 21.5 more than 60 days after the delivery of a request for consultations under paragraph 1, the Parties may agree at any time to refer the matter to the Joint Committee pursuant to Article 21.6 (Referral of Matters to the Joint Committee).

5. Articles 21.2 (Scope of Application) and 21.5 shall not apply to a matter arising under any provision of this Chapter other than Article 18.2.1(a).

ARTICLE 18.7: DEFINITIONS

For the purposes of this Chapter,

1. internationally recognised labour principles and rights means:

(a) the right of association;

(b) the right to organize and bargain collectively;

(c) a prohibition on the use of any form of forced or compulsory labour;

(d) labour protections for children and young people, including a minimum age for the employment of children and the prohibition and elimination of the worst forms of child labour;18-1 and

(e) acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health.

2. labour laws means:

(a) for the United States, acts of the Congress, regulations promulgated pursuant to an act of Congress, or provisions of such acts or regulations, where such acts, regulations, or provisions are directly related to internationally recognised labour principles and rights and are enforceable by action of the federal government;

(b) for Australia, acts of a parliament of Australia, or regulations promulgated pursuant to such acts, directly related to internationally recognised labour principles and rights.

CHAPTER NINETEEN

ENVIRONMENT

ARTICLE 19.1 : LEVELS OF PROTECTION

Recognizing the right of each Party to establish its own levels of environmental protection and environmental development priorities, and to adopt or modify accordingly its environmental laws and policies, each Party shall ensure that its laws provide for and encourage high levels of environmental protection and shall strive to continue to improve their respective levels of environmental protection, including through such environmental laws and policies.

ARTICLE 19.2 : APPLICATION AND ENFORCEMENT OF ENVIRONMENTAL LAWS

1.

(a) A Party shall not fail to effectively enforce its environmental laws, through a sustained or recurring course of action or inaction, in a manner affecting trade between the Parties, after the date of entry into force of this Agreement.

(b) The Parties recognise that each Party retains the right to exercise discretion with respect to investigatory, prosecutorial, regulatory, and compliance matters and to make decisions regarding the allocation of resources to enforcement with respect to other environmental matters determined to have higher priorities. Accordingly, the Parties understand that a Party is in compliance with subparagraph (a) where a course of action or inaction reflects a reasonable exercise of such discretion, or results from a bona fide decision regarding the allocation of resources.

2. The Parties recognise that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in their respective environmental laws. Accordingly, each Party shall strive to ensure that it does not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such laws in a manner that weakens or reduces the protections afforded in those laws as an encouragement for trade with the other Party, or as an encouragement for the establishment, acquisition, expansion, or retention of an investment in its territory.

ARTICLE 19.3 : PROCEDURAL GUARANTEES AND PUBLIC AWARENESS

1. Each Party shall ensure that judicial, quasi-judicial, or administrative proceedings for the enforcement of its environmental laws are fair, equitable, transparent, and provide for appropriate administrative and procedural protections in accordance with its law.

2. Each Party shall ensure that persons with a legally recognised interest under its law in a particular matter have appropriate access to proceedings referred to in paragraph 1.

3. Each Party shall provide remedies for violations of its environmental laws to ensure the effective enforcement of those laws. The Parties recognise that a variety of activities can contribute to enforcement of environmental laws.

4. Each Party shall promote public awareness of its environmental laws by ensuring that information is available to the public regarding its environmental laws and enforcement and compliance procedures, including procedures for interested persons to request the Party’s competent authorities to investigate alleged violations of its environmental laws. A Party may use a variety of means available for this purpose, such as publishing information and notices in official bulletins and the mass media, publishing and distributing information manuals, undertaking compliance assistance programs, conducting meetings, and making information available through the Internet.

5. For greater certainty, nothing in this Chapter shall be construed as calling for the examination under this Agreement of whether a Party’s court has appropriately applied that Party’s environmental laws.

ARTICLE 19.4 : VOLUNTARY MECHANISMS TO ENHANCE ENVIRONMENTAL PERFORMANCE

The Parties recognise that flexible, voluntary, and market-based mechanisms can contribute to the achievement and maintenance of high levels of environmental protection. As appropriate and in accordance with its law, each Party shall encourage the development of such mechanisms, which may include partnerships, sharing information, and market-based mechanisms that encourage the protection of natural resources and the environment.

ARTICLE 19.5 : INSTITUTIONAL ARRANGEMENTS AND PUBLIC PARTICIPATION

1. In carrying out its functions, the Joint Committee established under Chapter 21 (Institutional Arrangements and Dispute Settlement) shall consider matters related to the operation of this Chapter and the pursuit of the environmental objectives of this Agreement. The Joint Committee may establish a Subcommittee on Environmental Affairs comprising government officials of each Party, to meet at such times as they deem appropriate to discuss the operation of this Chapter. Each meeting of the Subcommittee normally shall include a public session.

2. Each formal decision of the Parties concerning the operation of this Chapter shall be made public, unless the Joint Committee decides otherwise.

3. Each Party shall provide an opportunity for its public, which may include national advisory committees, to provide views, recommendations, or advice on matters related to the implementation of this Chapter, and shall make available such views, recommendations, or advice to the other Party and, as appropriate, to the public in accordance with its law.

ARTICLE 19.6 : ENVIRONMENTAL COOPERATION

1. The Parties recognise the importance of strengthening capacity to protect the environment and to promote sustainable development in concert with strengthening bilateral trade and investment relations. Toward this end, the Parties acknowledge the importance of ongoing joint bilateral, regional, and multilateral environmental activities. The Parties agree to negotiate a United States–Australia Joint Statement on Environmental Cooperation under which the Parties will explore ways to further support these ongoing activities.

2. Each Party shall take into account, as appropriate, public comments and recommendations it receives regarding these ongoing cooperative environmental activities undertaken by the Parties.

3. The Parties shall, as appropriate, share information with each other and the public regarding their experiences in assessing and taking into account the positive and negative environmental effects of trade agreements and policies.

ARTICLE 19.7 : ENVIRONMENTAL CONSULTATIONS

1. A Party may request consultations with the other Party regarding any matter arising under this Chapter. Unless the Parties agree otherwise, consultations shall commence within 30 days after a Party delivers a request for consultations to the contact point designated by the other Party for this purpose.

2. The Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter and may seek advice or assistance from any person or body they deem appropriate.

3. If the consultations fail to resolve the matter, either Party may request that the Subcommittee on Environmental Affairs be convened. The Subcommittee shall convene within 30 days after a Party delivers a written request to the other Party’s contact point, unless the Parties agree otherwise. If the Joint Committee has not established the Subcommittee as of the date a Party delivers a request, it shall do so during the 30-day period described in this paragraph. The Subcommittee shall endeavour to resolve the matter expeditiously, including, where appropriate, by consulting governmental or non-governmental experts and by having recourse to such procedures as good offices, conciliation, or mediation.

4. If a Party considers that the other Party has failed to carry out its obligations under Article 19.2.1(a), the Party may request consultations under paragraph 1 or pursuant to Article 21.5 (Consultations).

(a) If a Party requests consultations pursuant to Article 21.5 at a time when the Parties are engaged in consultations on the same matter under paragraph 1 or the subcommittee is endeavouring to resolve the matter under paragraph 3, the Parties shall discontinue their efforts to resolve the matter under this Article. Once consultations have begun under Article 21.5, no consultations on the same matter may be entered into under this Article.

(b) If a Party requests consultations pursuant to Article 21.5 more than 60 days after the delivery of a request for consultations under paragraph 1, the Parties may agree at any time to refer the matter to the Joint Committee pursuant to Article 21.6 (Referral of Matters to the Joint Committee).

5. Articles 21.2 (Scope of Application) and 21.5 (Consultations) shall not apply to a matter arising under any provision of this Chapter other than Article 19.2.1(a). 19-4

ARTICLE 19.8 : RELATIONSHIP TO ENVIRONMENTAL AGREEMENTS

The Parties recognise that multilateral environmental agreements to which they are both party play an important role, globally and domestically, in protecting the environment and that their respective implementation of these agreements is critical to achieving the environmental objectives of these agreements. Accordingly, the Parties shall continue to seek means to enhance the mutual supportiveness of multilateral environmental agreements to which they are both party and international trade agreements to which they are both party. The Parties shall consult regularly with respect to negotiations in the WTO regarding multilateral environmental agreements.

ARTICLE 19.9 : DEFINITIONS

For the purposes of this Chapter:

1. environmental law means any statute or regulation of a Party, or provision thereof, the primary purpose19-1 of which is the protection of the environment, or the prevention of a danger to human, animal, or plant life or health, through:

(a) the prevention, abatement, or control of the release, discharge, or emission of pollutants or environmental contaminants;

(b) the control of environmentally hazardous or toxic chemicals, substances, materials, and wastes, and the dissemination of information related thereto; or

(c) the protection or conservation of wild flora or fauna, including endangered species, their habitat, and specially protected natural areas,

in areas with respect to which a Party exercises sovereignty, sovereign rights, or jurisdiction, but does not include any statute or regulation, or provision thereof, directly related to worker safety or health.

2. For the United States, statute or regulation means an act of Congress or regulation promulgated pursuant to an act of Congress that is enforceable by action of the federal government.
 

CHAPTER TWENTY

TRANSPARENCY

ARTICLE 20.1 : CONTACT POINTS

1. Each Party shall designate a contact point or points to facilitate communications between the Parties on any matter covered by this Agreement.

2. On the request of the other Party, a Party’s contact point shall identify the office or official responsible for the matter and assist, as necessary, in facilitating communications with the requesting Party.

ARTICLE 20.2 : PUBLICATION

1. Each Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application respecting any matter covered by this Agreement are promptly published or otherwise 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 such laws, regulations, procedures, and administrative rulings that it proposes to adopt; and

(b) provide interested persons and the other Party a reasonable opportunity to comment on such proposed measures.

ARTICLE 20.3 : NOTIFICATION AND PROVISION OF INFORMATION

1. To the maximum extent possible, each Party shall notify the other Party of any proposed or actual measure that the Party considers might materially affect the operation of this Agreement or otherwise substantially affect the other Party’s interests under this Agreement.

2. On request of the other Party, a Party shall promptly provide information and respond to questions pertaining to any actual or proposed measure that the requesting Party considers might materially affect the operation of this Agreement or otherwise substantially affect its interests under this Agreement, regardless of whether the requesting Party has been previously notified of that measure.

3. Any notification, request, or information under this Article shall be provided to the other Party through the relevant contact points.

4. Any notification or information provided under this Article shall be without prejudice as to whether the measure in question is consistent with this Agreement.

ARTICLE 20.4 : ADMINISTRATIVE AGENCY PROCESSES20-1

With a view to administering its laws, regulations, procedures, and administrative rulings of general application respecting any matter covered by this Agreement in a consistent, impartial, and reasonable manner, each Party shall ensure that its administrative agencies, in applying such measures to particular persons, goods, or services of the other Party in specific cases through adjudication, rulemaking, licensing, determination, and approval processes:

(a) provide, wherever possible, persons of the other Party that are directly affected by an agency’s processes reasonable notice, in accordance with domestic procedures, when a process is initiated, including a description of the nature of the relevant process, a statement of the legal authority under which the process is initiated, and a general description of any issues in controversy;

(b) afford such persons a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when time, the nature of the process, and the public interest permit; and

(c) follow procedures that are in accordance with its law.

ARTICLE 20.5 : REVIEW AND APPEAL

1. Each Party shall maintain judicial, quasi-judicial, or administrative tribunals or procedures for the purpose of the prompt review20-2 and, where warranted, correction of final administrative actions regarding matters covered by this Agreement. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.

2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceeding are provided with 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, where required by the Party’s law, the record compiled by the administrative authority.

3. Each Party shall ensure, subject to appeal or further review as provided in its law, that such decision shall be implemented by, and shall govern the practice of, the offices or authorities with respect to the administrative action at issue.

4. ARTICLE 20.6 : DEFINITIONS

For the purposes of this Chapter:

administrative ruling of general application means an administrative ruling or interpretation that applies to all persons and fact situations that fall generally within its ambit and that establishes 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.

CHAPTER TWENTY-ONE

INSTITUTIONAL ARRANGEMENTS AND DISPUTE SETTLEMENT

SECTION A : INSTITUTIONAL ARRANGEMENTS AND ADMINISTRATION

ARTICLE 21.1 : JOINT COMMITTEE

1. The Parties hereby establish a Joint Committee to supervise the implementation of this Agreement and to review the trade relationship between the Parties.

(a) The Joint Committee shall be composed of government officials of each Party and shall be co-chaired by (i) the United States Trade Representative for the United States and (ii) the Minister for Trade for Australia, or their respective designees.

(b) The Joint Committee may establish and delegate responsibilities to ad hoc and standing committees, working groups, or other bodies, and seek the advice of non-governmental persons or groups.

2. The Joint Committee shall:

(a) review the general functioning of this Agreement;

(b) review and consider specific matters related to the operation and implementation of this Agreement in the light of its objectives;

(c) facilitate the avoidance and settlement of disputes arising under this Agreement, including through consultations pursuant to Articles 21.5 and 21.6;

(d) consider and adopt any amendment to this Agreement or other modification to the commitments therein, subject to completion of necessary legal procedures by each Party;

(e) as appropriate, issue interpretations of the Agreement;

(f) consider ways to further enhance trade relations between the Parties and to further the objectives of this Agreement; and

(g) take such other action as the Parties may agree.

3. Unless the Parties agree otherwise, the Joint Committee shall convene:

(a) in regular session every year to review the general functioning of the Agreement and such other issues as the Parties may agree, with such sessions to be held alternately in the territory of each Party; and

(b) in special session within 30 days of the request of a Party, with such sessions to be held in the territory of the other Party or at such location as may be agreed by the Parties.

4. The Joint Committee shall adopt its own rules of procedure.

5. Each Party shall treat any confidential information exchanged in relation to a meeting of the Joint Committee or any body created under Article 21.1.1(b) on the same basis as the Party providing the information.

6. Recognizing the importance of transparency and openness, the Parties affirm their respective practices of considering the views of members of the public in order to draw on a broad range of perspectives in the implementation of this Agreement.

7. At its first meeting, the Joint Committee shall consider each Party’s review of the environmental effects of this Agreement and shall provide the public an opportunity to provide views on those effects.

SECTION B: DISPUTE SETTLEMENT PROCEEDINGS

ARTICLE 21.2 : SCOPE OF APPLICATION

Except as otherwise provided in this Agreement or as the Parties otherwise agree, the dispute settlement provisions of this Section shall apply with respect to the avoidance or settlement of all disputes between the Parties regarding the interpretation or application of this Agreement or wherever a Party considers that:

(a) a measure of the other Party is inconsistent with its obligations under this Agreement;

(b) the other Party has otherwise failed to carry out its obligations under this Agreement; or

(c) a benefit the Party could reasonably have expected to accrue to it under Chapters Two (National Treatment and Market Access for Goods), Three (Agriculture), Five (Rules of Origin), Ten (Cross-Border Trade in Services), Fifteen (Government Procurement), or Seventeen (Intellectual Property Rights) is being nullified or impaired as a result of a measure that is not inconsistent with this Agreement.

ARTICLE 21.3 : ADMINISTRATION OF DISPUTE SETTLEMENT PROCEEDINGS

1. Each Party shall:

(a) designate an office that shall be responsible for providing administrative assistance to panels established under Article 21.7;

(b) be responsible for the operation and costs of its designated office; and

(c) notify the other Party of the location of its designated office.

2. The Joint Committee shall establish the amounts of remuneration and expenses to be paid to panellists.

3. The remuneration of panellists, their travel and lodging expenses, and all general expenses relating to proceedings of a panel established under Article 21.7 shall be borne equally by the Parties.

4. Each panellist shall keep a record and render a final account of the panellist’s time and expenses, and the panel shall keep a record and render a final account of all general expenses.

ARTICLE 21.4 : CHOICE OF FORUM

1. Where a dispute regarding any matter arises under this Agreement and under another trade agreement to which both Parties are party, including the WTO Agreement, the complaining Party may select the forum in which to settle the dispute.

2. Once the complaining Party has requested a panel under an agreement referred to in paragraph 1, the forum selected shall be used to the exclusion of the others.

ARTICLE 21.5 : CONSULTATIONS

1. Without prejudice to the provisions of Articles 18.6 (Labour Consultations) and 19.8 (Environment Consultations), either Party may request consultations with the other Party with respect to any matter it considers might affect the operation of this Agreement by delivering written notification to the other Party’s office designated under Article 21.3. If a Party requests consultations with respect to a matter, the other Party shall reply promptly to the request for consultations and enter into consultations in good faith.

2. In consultations under this Article, a Party may request the other Party to make available personnel of its government agencies or other regulatory bodies who have expertise in the matter subject to consultations.

3. In the consultations, each Party shall:

(a) provide sufficient information to enable a full examination of how the matter subject to consultations might affect the operation of this Agreement; and

(b) treat any confidential information exchanged in the course of consultations on the same basis as the Party providing the information.

4. Promptly after requesting or receiving a request for consultations pursuant to this Article, each Party shall solicit and consider the views of members of the public on the matter in order to draw on a broad range of perspectives.

ARTICLE 21.6 : REFERRAL OF MATTERS TO THE JOINT COMMITTEE

If the consultations fail to resolve the matter within 60 days of the delivery of a Party’s request for consultations under Article 21.5, or 20 days where the matter concerns perishable goods, either Party may refer the matter to the Joint Committee by delivering written notification to the other Party’s office designated under Article 21.3. The Joint Committee shall endeavour to resolve the matter.

ARTICLE 21.7 : ESTABLISHMENT OF PANEL

1. If the Joint Committee has not resolved a matter within 60 days after delivery of the notification described in Article 21.6, within 30 days where the matter concerns perishable goods, or within such other period as the Parties may agree, the complaining Party may refer the matter to a dispute settlement panel by delivering written notification to the other Party’s office designated under Article 21.3.

2. A Party may not refer a proposed measure to a dispute settlement panel.

3. Unless the Parties agree otherwise:

(a) The panel shall have three members.

(b) Each Party shall appoint one panellist, in consultation with the other Party, within 30 days after the matter has been referred to a panel. If a Party fails to appoint a panellist within such period, a panellist shall be selected by lot from the contingent list established under paragraph 4 to serve as the panellist appointed by that Party.

(c) The Parties shall endeavour to agree on a third panellist who shall serve as chair.

(d) If the Parties are unable to agree on the chair within 30 days after the date on which the second panelist has been appointed, the chair shall be selected by lot from the contingent list established under paragraph 4.

(e) The date of establishment of the panel shall be the date on which the chair is appointed.

4. By the date of entry into force of this Agreement, the Parties shall establish a contingent list of ten individuals who are willing and able to serve as panellists. Individuals on the contingent list shall be appointed by agreement of the Parties for a minimum term of three years, and shall remain on the list until the Parties constitute a new contingent list.

5. The panellists chosen pursuant to paragraph 3 and the individuals on the contingent list established pursuant to paragraph 4 shall:

(a) be chosen strictly on the basis of objectivity, reliability, and sound judgment and have expertise or experience in law, international trade, or the resolution of disputes arising under international trade agreements;

(b) be independent of, and not be affiliated with or take instructions from, either Party and not have a conflict of interest or appearance thereof, as set forth in a code of conduct to be established by the Joint Committee; and

(c) comply with the code of conduct.

In addition, in any dispute arising under Chapters Eighteen (Labour) or Nineteen (Environment), panellists other than those chosen by lot from the contingent list shall have expertise or experience relevant to the subject matter under dispute.

ARTICLE 21.8 : RULES OF PROCEDURE

1. The Parties shall establish by the date of entry into force of this Agreement model rules of procedure, which shall ensure:

(a) a right to at least one hearing before the panel and that, subject to subparagraph (f), any such hearings shall be open to the public;

(b) an opportunity for each Party to provide initial and rebuttal submissions;

(c) that each Party’s written submissions, written versions of its oral statement, and written responses to a request or questions from the panel shall be made public within ten days after they are submitted, subject to subparagraph (f);

(d) that the panel shall consider requests from nongovernmental persons or entities in the Parties’ territories to provide written views regarding the dispute that may assist the panel in evaluating the submissions and arguments of the Parties and provide the Parties an opportunity to respond to such written views;

(e) a reasonable opportunity for each Party to submit comments on the initial report presented pursuant to Article 21.9.1; and

(f) the protection of confidential information.

2. Unless the Parties otherwise agree, the panel shall follow the model rules of procedure and may, after consulting the Parties, adopt additional rules of procedure not inconsistent with the model rules.

3. On request of a Party, or on its own initiative, the panel may seek information and technical advice from any person or body that it deems appropriate, provided that the Parties so agree and subject to such terms and conditions as the Parties may agree.

ARTICLE 21.9 : PANEL REPORT

1. Unless the Parties agree otherwise, the panel shall, within 180 days after the chair is appointed, present to the Parties an initial report containing findings of fact, and its determination regarding:

(a) whether the measure at issue is inconsistent with the obligations of this Agreement;

(b) whether a Party has otherwise failed to carry out its obligations under this Agreement; or

(c) whether a Party’s measure is causing nullification or impairment in the sense of Article 21.2(c); and

(d) any other matter that the Parties have jointly requested that the Panel address, as well as reasons for its findings and determinations.

2. The panel shall consider this Agreement in accordance with applicable rules of interpretation under international law as reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (1969). It shall base its report on the relevant provisions of the Agreement and the submissions and arguments of the Parties. The panel may, at the request of the Parties, make recommendations for the resolution of the dispute.

3. After considering any written comments by the Parties on the initial report, the panel may modify its report and make any further examination it considers appropriate.

4. The panel shall present a final report to the Parties within 45 days of presentation of the initial report, unless the Parties otherwise agree. The Parties shall release the final report to the public within 15 days thereafter, subject to the protection of confidential information.

ARTICLE 21.10 : IMPLEMENTATION OF THE FINAL REPORT

1. On receipt of the final report of a panel, the Parties shall agree on the resolution of the dispute, which normally shall conform with the determinations and recommendations, if any, of the panel.

2. If, in its final report, the panel determines that a Party has not conformed with its obligations under this Agreement or that a Party’s measure is causing nullification or impairment in the sense of Article 21.2(c), the resolution, whenever possible, shall be to eliminate the non-conformity or the nullification or impairment.

ARTICLE 21.11 : NON-IMPLEMENTATION

1. If a panel has made a determination of the type described in Article 21.10.2, and the Parties are unable to reach agreement on a resolution pursuant to Article 21.10.1 within 45 days of receiving the final report, or such other period as the Parties agree, the Party complained against shall enter into negotiations with the other Party with a view to developing mutually acceptable compensation.

2. If the Parties:

(a) are unable to agree on compensation within 30 days after the period for developing such compensation has begun, or

(b) have agreed on compensation or on a resolution pursuant to Article 21.10 and the complaining Party considers that the other Party has failed to observe the terms of such agreement,

the complaining Party may at any time thereafter provide written notice to the office designated by the other Party pursuant to Article 21.3 that it intends to suspend the application to the other Party of benefits of equivalent effect. The notice shall specify the level of benefits that the Party proposes to suspend. Subject to paragraph 5, the complaining Party may begin suspending benefits 30 days after the later of the date on which it provides notice to the other Party’s designated office under this paragraph or the panel issues its determination under paragraph 3, as the case may be.

3. If the Party complained against considers that:

(a) the level of benefits that the other Party has proposed to be suspended is manifestly excessive; or

(b) it has eliminated the non-conformity or the nullification or impairment that the panel has found,

it may, within 30 days after the complaining Party provides notice under paragraph 2, request that the panel be reconvened to consider the matter. The Party complained against shall deliver its request in writing to the office designated by the other Party pursuant to Article 21.3. The panel shall reconvene as soon as possible after delivery of the request to the designated office and shall present its determination to the Parties within 90 days after it reconvenes to review a request under either subparagraph (a) or (b), or within 120 days for a request under both subparagraphs (a) and (b). If the panel determines that the level of benefits proposed to be suspended is manifestly excessive, it shall determine the level of benefits it considers to be of equivalent effect.

4. The complaining Party may suspend benefits up to the level the panel has determined under paragraph 3 or, if the panel has not determined the level, the level the Party has proposed to suspend under paragraph 2, unless the panel has determined that the Party complained against has eliminated the non-conformity, or the nullification or impairment.

5. The complaining Party may not suspend benefits if, within 30 days after it provides written notice of intent to suspend benefits or, if the panel is reconvened under paragraph 3, within 20 days after the panel provides its determination, the Party complained against provides written notice to the other Party’s office designated pursuant to Article 21.3 that it will pay an annual monetary assessment. The Parties shall consult, beginning no later than ten days after the Party complained against provides notice, with a view to reaching agreement on the amount of the assessment. If the Parties are unable to reach an agreement within 30 days after consultations begin, the amount of the assessment shall be set at a level, in U.S. dollars, equal to 50 percent of the level of the benefits the panel has determined under paragraph 3 to be of equivalent effect or, if the panel has not determined the level, 50 percent of the level that the complaining Party has proposed to suspend under paragraph 2.

6. Unless the Joint Committee decides otherwise, a monetary assessment shall be paid to the complaining Party in U.S. currency, or in an equivalent amount of Australian currency, in equal, quarterly instalments beginning 60 days after the Party complained against gives notice that it intends to pay an assessment. Where the circumstances warrant, the Joint Committee may decide that an assessment shall be paid into a fund established by the Joint Committee and expended at the direction of the Joint Committee for appropriate initiatives to facilitate trade between the Parties, including by further reducing unreasonable trade barriers or by assisting a Party in carrying out its obligations under the Agreement.

7. If the Party complained against fails to pay a monetary assessment, the complaining Party may suspend the application to the Party complained against of benefits in accordance with paragraph 4.

8. This Article shall not apply with respect to a matter described in Article 21.12.1.

ARTICLE 21.12 : NON-IMPLEMENTATION IN CERTAIN DISPUTES

1. If, in its final report, a panel determines that a Party has not conformed with its obligations under Article 18.2.1(a) or Article 19.2.1(a), and the Parties:

(a) are unable to reach agreement on a resolution pursuant to Article 21.10.1 within 45 days of receiving the final report; or

(b) have agreed on a resolution pursuant to Article 21.10.1 and the complaining Party considers that the other Party has failed to observe the terms of the agreement,

the complaining Party may at any time thereafter request that the panel be reconvened to impose an annual monetary assessment on the other Party. The complaining Party shall deliver its request in writing to the office designated by the other Party pursuant to Article 21.3. The panel shall reconvene as soon as possible after delivery of the request to the designated office.

2. The panel shall determine the amount of the monetary assessment in U.S. dollars within 90 days after it reconvenes under paragraph 1. In determining the amount of the assessment, the panel shall take into account:

(a) the bilateral trade effects of the Party’s failure to effectively enforce the relevant law;

(b) the pervasiveness and duration of the Party’s failure to effectively enforce the relevant law;

(c) the reasons for the Party’s failure to effectively enforce the relevant law;

d) the level of enforcement that could reasonably be expected of the Party given its resource constraints;

(e) the efforts made by the Party to begin remedying the non-enforcement after the final report of the panel; and

(f) any other relevant factors.

The amount of the assessment determined by the Panel shall not exceed 15 million U.S. dollars annually, adjusted for inflation as specified in Annex 21-A.

3. On the date on which the panel determines the amount of the monetary assessment under paragraph 2, or at any other time thereafter, the complaining Party may provide notice in writing to the office designated by the Party complained against pursuant to Article 21.3 demanding payment of the monetary assessment. The monetary assessment shall be payable in U.S. currency, or in an equivalent amount of Australian currency, in equal, quarterly instalments beginning 60 days after the complaining Party provides such notice. Each of the first four quarterly instalments shall be equal to one quarter of the monetary assessment determined by the panel under Article 21.12.2. The fifth quarterly instalment and subsequent quarterly instalments shall be adjusted for inflation as specified in Annex 21-A.

4. Assessments shall be paid into a fund established by the Joint Committee and shall be expended at the direction of the Joint Committee for appropriate labour or environmental initiatives, including efforts to improve or enhance labour or environmental law enforcement, as the case may be, in the territory of the Party complained against, consistent with its law. In deciding how to expend monies paid into the fund, the Joint Committee shall consider the views of interested persons in each Party’s territory.

5. If the Party complained against fails to pay a monetary assessment, and if the Party has created and funded an escrow account to ensure payment of any assessments against it, the other Party shall, before having recourse to any other measure, seek to obtain the funds from the account.

6. If the complaining Party cannot obtain the funds from the other Party’s escrow account within 30 days of the date on which payment is due, or if the other Party has not created an escrow account, the complaining Party may take other appropriate steps to collect the assessment or otherwise secure compliance. These steps may include suspending tariff benefits under the Agreement as necessary to collect the assessment, while bearing in mind the Agreement’s objective of eliminating barriers to bilateral trade and while seeking to avoid unduly affecting parties or interests not party to the dispute.

ARTICLE 21.13 : COMPLIANCE REVIEW

1. Without prejudice to the procedures set out in Article 21.11.3, if the Party complained against considers that it has eliminated the non-conformity or the nullification or impairment that the panel has found, it may refer the matter to the panel by providing written notice to the office designated by the other Party pursuant to Article 21.3. The panel shall issue its report on the matter within 90 days after the Party complained against provides notice.

2. If the panel decides that the Party complained against has eliminated the non-conformity or the nullification or impairment, the complaining Party shall promptly reinstate any benefits it has suspended under Article 21.11 or 21.12, and the Party complained against shall no longer be required to pay any monetary assessment it has agreed to pay under Article 21.11.5 or that has been imposed on it under Article 21.12.

ARTICLE 21.14 : FIVE-YEAR REVIEW

The Joint Committee shall review the operation and effectiveness of Articles 21.11 and 21.12 not later than five years after the Agreement enters into force, or within six months after benefits have been suspended or monetary assessments have been imposed in five proceedings initiated under this Chapter, whichever occurs first.

ARTICLE 21.15 : PRIVATE RIGHTS

Neither Party may provide for a right of action under its domestic law against the other Party on the ground that a measure of the other Party is inconsistent with this Agreement.

ANNEX 21-A

INFLATION ADJUSTMENT FORMULA FOR MONETARY ASSESSMENTS

1. Beginning on the date of entry into force of this Agreement through December 31, 2005, the annual monetary assessment determined by a panel under Article 21.12.2 shall not exceed 15 million U.S. dollars.

2. Beginning January 1, 2006, the annual monetary assessment determined by a panel under Article 21.12.2 shall not exceed the amount of “A” calculated according to the following formula:

A = US$15 million x (1+ i )

where

i = accumulated U.S. inflation rate (as measured by the Producer Price Index for Finished Goods published by the U.S. Bureau of Labor Statistics) from calendar year 2004 through the calendar year for which data are available immediately preceding the one in which the assessment is determined.

3. The fifth quarterly instalment and subsequent quarterly installments referred to in Article 21.12.3 shall be the amount “C” calculated according to the following formula:

C = B x (1+ i )/4

where

B = the assessment determined by the Panel.

i = accumulated U.S. inflation rate (as measured by the Producer Price Index for Finished Goods published by the U.S. Bureau of Labor Statistics) from the calendar year immediately preceding the one in which the assessment was determined through the calendar year for which data are available immediately preceding the one in which the quarterly instalment is owed.

CHAPTER TWENTY-TWO

GENERAL PROVISIONS AND EXCEPTIONS

ARTICLE 22.1 : GENERAL EXCEPTIONS

1. For the purposes of Chapters Two through Eight (National Treatment and Market Access for Goods, Agriculture, Textiles, Rules of Origin, Customs Administration, Sanitary and Phytosanitary Measures, and Technical Barriers to Trade), GATT 1994 Article XX and its interpretive notes are incorporated into and made part of this Agreement, mutatis mutandis. 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, and that GATT 1994 Article XX(g) applies to measures relating to the conservation of living and non-living exhaustible natural resources.

2. For the purposes of Chapters Ten, Twelve, and Sixteen (Cross Border Trade in Services, Telecommunications, and Electronic Commerce),GATS Article XIV (including its footnotes) is incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in GATS Article XIV(b) include environmental measures necessary to protect human, animal, or plant life or health.

ARTICLE 22.2 : ESSENTIAL SECURITY

Nothing in this Agreement shall be construed:

(a) to require a Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests; or

(b) to preclude a Party from applying measures that it considers necessary for the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.

ARTICLE 22.3 : TAXATION

1. Except as set out in this Article, nothing in this Agreement shall apply to taxation measures.

2.

(a) Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention. In the event of any inconsistency between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency.

(b) In the case of a tax convention between the Parties the competent authorities under that convention shall have sole responsibility for determining whether any inconsistency exists between this Agreement and that convention.

3. Notwithstanding paragraph 2:

(a) Article 2.2 (National Treatment) and such other provisions of this Agreement as are necessary to give effect to that Article shall apply to taxation measures to the same extent as does GATT 1994 Article III; and

(b) Article 2.11 (Export Taxes) shall apply to taxation measures.

4. Subject to paragraph 2:

(a) Article 10.2 (National Treatment), Article 13.2 (National Treatment), and Article 13.5.1 (Cross-Border Trade) shall apply to taxation measures on income, capital gains, or on the taxable capital of corporations that relate to the purchase or consumption of particular services, except that nothing in this sub-paragraph shall prevent a Party from conditioning the receipt or continued receipt of an advantage relating to the purchase or consumption of particular services on requirements to provide the service in its territory;22-1 and

(b) Articles 11.3, 11.4 (Most-Favoured-Nation Treatment), 10.2 (National Treatment), 10.3 (Most-Favoured-Nation Treatment), 13.2, 13.3 (Most-Favoured- Nation Treatment), and 13.5.1 shall apply to all taxation measures, other than those on income, capital gains, or on the taxable capital of corporations, taxes on estates, inheritances, gifts, and generation-skipping transfers;

except that nothing in those Articles shall apply:

(c) any most-favoured-nation obligation in this Agreement with respect to an advantage accorded by a Party pursuant to a tax convention;

(d) to a non-conforming provision of any existing taxation measure;

(e) to the continuation or prompt renewal of a non-conforming provision of any existing taxation measure;

(f) to an amendment to a non-conforming provision of any existing taxation measure to the extent that the amendment does not decrease its conformity, at the time of the amendment, with any of those Articles;

(g) to the adoption or enforcement of any taxation measure aimed at ensuring the equitable or effective imposition or collection of taxes (as permitted by GATS Article XIV(d) without regard to the limitation in Article XIV(d) to direct taxes); or

(h) to a provision that conditions the receipt, or continued receipt of an advantage relating to the contributions to, or income of, a pension trust, superannuation fund, or other arrangement to provide pension, superannuation, or similar benefits on a requirement that the Party maintain continuous jurisdiction, regulation, or supervision over such trust, fund, or other arrangement.

5. Subject to paragraph 2 and without prejudice to the rights and obligations of the Parties under paragraph 3, paragraphs 2, 3, and 4 of Article 11.9 (Performance Requirements) shall apply to taxation measures.

6.

(a) Article 11.7 (Expropriation and Compensation) shall apply to taxation measures.

(b) Where a Party alleges in writing that a taxation measure of the other Party is an expropriation, that other Party’s designated authority may request in writing consultations between the designated authorities regarding whether a determination that the taxation measure is an expropriation under this Agreement would give rise to an inconsistency with any tax convention between the Parties. Unless the designated authorities agree within sixty days after receipt of the request for consultations (which period may be extended by mutual agreement of such designated authorities) that an inconsistency would arise in case of such determination, the Party alleging an expropriation may pursue the matter under Section B of Chapter 21 (Dispute Settlement Procedures). Notwithstanding subparagraph 2(b), the designated authorities shall have sole responsibility with respect to this issue of whether a determination that a taxation measure alleged by a Party to be an expropriation under this Agreement would give rise to an inconsistency with any tax convention between the Parties.

(c) For the purposes of this paragraph, designated authority means:

(i) in the case of Australia, the Secretary to the Treasury or his authorised representative; and

(ii) in the case of the United States, the Assistant Secretary of the Treasury (Tax Policy).

7. For the purposes of this Article, taxes and taxation measures do not include any import or customs duties.

ARTICLE 22.4 : DISCLOSURE OF INFORMATION

1. Nothing in this Agreement shall be construed as requiring a Party to furnish or allow access to confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest22-2 or which would prejudice the legitimate commercial interests of particular enterprises, public or private.

2. When a Party provides written information pursuant to a request or a requirement under this Agreement and informs the other Party that it considers the information to be of the type described in paragraph 1, the Party receiving the information shall not disclose or use the information for a purpose other than that for which it was requested or required, except where the disclosure or use is required or authorised pursuant to the receiving Party’s law and regulations or with the prior consent of the Party providing the information.

ARTICLE 22.5 : ANTI-CORRUPTION

The Parties shall cooperate in seeking to eliminate bribery and corruption and to promote transparency in international trade. They are committed to seeking avenues in relevant international fora to address bribery, corruption, and transparency and to build on anti-corruption efforts in these fora.

CHAPTER TWENTY-THREE

FINAL PROVISIONS

ARTICLE 23.1 : ACCESSION

1. Any country or group of countries may accede to this Agreement subject to such terms and conditions as may be agreed between such country or countries and the Parties and following approval in accordance with the applicable legal procedures of each country.

2. This Agreement shall not apply as between any Party and any acceding country or group of countries if, at the time of the accession, either Party does not consent to such application.

ARTICLE 23.2 : ANNEXES

The Annexes to this Agreement constitute an integral part of this Agreement.

ARTICLE 23.3 : AMENDMENTS

1. The Parties may agree, in writing, to amend this Agreement. An amendment shall enter into force after the Parties complete any necessary internal requirements and on such date as the Parties may agree.

2. If any provision of the WTO Agreement that the Parties have incorporated into this Agreement is amended, the Parties will consult on whether to amend this Agreement.

ARTICLE 23.4 : ENTRY INTO FORCE AND TERMINATION

1. This Agreement shall enter into force 60 days after the date on which the Parties exchange written notifications certifying that they have completed respective necessary internal requirements, or on such other date as the Parties may agree.

2. A Party may terminate this Agreement by written notification to the other Party, and such termination shall take effect six months after the date of the notification.

3. Within 30 days of delivery of a notification under paragraph 2, either Party may request consultations regarding whether any provision of this Agreement should terminate on a date later than that provided under paragraph 2. Consultations shall commence within 30 days after the Party delivers such a request.

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.

Done at Washington, D.C., in duplicate, this 18th day of May 2004.

 

 

FOR THE GOVERNMENT OF THE
UNITED STATES OF AMERICA:
FOR THE GOVERNMENT
OF AUSTRALIA:
 

/s/ Robert B. Zoellick 

 

/s/ Mark Vaile



_______________________________________________________________________

16-1 For greater clarity, Article 16.3 does not preclude a Party from imposing internal taxes or other internal charges on digital products, provided that such taxes or charges are imposed in a manner consistent with this Agreement.

16-2 Nothing in this Article shall be construed as affecting the Parties’ rights and obligations with respect to each other under Article 4 of the TRIPS Agreement.

16-3 For greater clarity, digital products can be a component of a good, be used in the supply of a service, or exist separately, but do not include digitized representations of financial instruments that are settled or transmitted through central bank-sponsored payment or settlement system.

16-4 The definition of digital products should not be understood to reflect a Party’s view on whether trade in digital products through electronic transmission should be categorized as trade in services or trade in goods.

17-1 For the purposes of Articles 17.1.6, 17.1.7, 17.2.12(b), and 17.6.1, a national of a Party also means, in respect of the relevant right, an entity of that Party that would meet the criteria for eligibility for protection provided for in the agreements listed in Articles 17.1.2 and 17.1.4, and the TRIPS Agreement

17-2 For the purposes of this paragraph, protection includes matters affecting the availability, acquisition, scope, maintenance, and enforcement of intellectual property rights, as well as those matters affecting the use of intellectual property rights specifically covered by this Chapter. Further, for the purposes of this paragraph, protection also includes the prohibition on circumvention of effective technological measures specified in Article 17.4.7 and the rights and obligations concerning rights management information specified in Article 17.4.8.

17-3 A Party may satisfy the requirement for publication by making the law, regulation, or procedure available to the public on the Internet.

17-4 For the purposes of this Article, in respect of the law of Australia, marks means “trademarks”.

17-5 A geographical indication shall be capable of constituting a mark to the extent that the geographical indication consists of any sign, or any combination of signs (such as words, including geographic and personal names, as well as letters, numerals, figurative elements and colours, including single colours), capable of identifying a good as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographical origin. For the purposes of this Chapter, originating does not have the meaning ascribed to that term in Article 1.2 (General Definitions).

17-6 A Party may require an adequate description, which can be represented graphically, of the mark.

17-7 In determining whether a mark is well known, the reputation of the mark need not extend beyond the sector of the public that normally deals with the relevant goods or services.

17-8 The Parties reaffirm that it is a matter for each Party’s law to prescribe that works and phonograms shall not be protected by copyright unless they have been fixed in some material form.

17-9 For the purposes of Articles 17.4, 17.5, and 17.6, a right to authorise or prohibit means an exclusive right.

17-10 For the purposes of Articles 17.4, 17.5, and 17.6, a performance refers to a performance fixed in a phonogram unless otherwise specified.

17-11 References in this Chapter to authors, performers and producers of phonograms include any successors in interest.

17-12 The expressions copies and original and copies subject to the right of distribution in this paragraph refer exclusively to fixed copies that can be put into circulation as tangible objects.

17-13 Nothing in this Agreement shall affect a Party’s right to determine the conditions, if any, under which the exhaustion of this right applies after the first sale or other transfer of ownership of the original or a copy of their works, performances, or phonograms with the authorisation of the right holder.

17-14 For the purposes of this Article, fixation includes the finalisation of the master tape or its equivalent.

17-15 “Use” in this paragraph refers to use other than that allowed under paragraph 3 and Article 30 of the TRIPS Agreement.

17-16 With respect to sub-paragraph (a), the Parties recognize that a patent does not necessarily confer market power.

17-17 For Australia, the term pharmaceutical substance as used in Section 70 of the Patents Act 1990 on the date of entry into force of this Agreement may be treated as synonymous with the term pharmaceutical product as used in this sub-paragraph.

17-18 The Parties acknowledge that, at the time of entry into force of this Agreement, neither Party permits third persons, not having the consent of the person that previously submitted information concerning the safety and efficacy of a product in order to obtain marketing approval in another territory, to market a same or similar product in the territory of the Party on the basis of such information or evidence of prior marketing approval in another territory.

17-19 As an alternative to this paragraph, where a Party, on the date of entry into force of this Agreement, has in place a system for protecting information submitted in connection with the approval of a pharmaceutical product that utilizes a previously approved chemical component from unfair commercial use, the Party may retain that system, notwithstanding the obligations of this paragraph.

17-20 A Party may satisfy the requirement for publication by making the measure available to the public on the Internet.

17-21 For the purpose of this Article, the term right holder shall include exclusive licensees as well as federations and associations having the legal standing and authority to assert such rights; the term exclusive licensee shall include the exclusive licensee of any one or more of the exclusive intellectual property rights encompassed in a given intellectual property.

17-22 A Party may limit this authority in exceptional circumstances.

17-23 A Party may give effect to paragraph 10(a) through, inter alia, the exercise of judicial discretion or pursuant to specific causes of action, as applicable.

17-24 For greater clarity, this provision does not apply to the extent that it would conflict with common law or statutory privileges, such as legal professional privilege.

17-25 Reasonable attorney’s fees may include those levied pursuant to relevant court fee schedules.

17-26 For the purposes of paragraphs 19 through 24, counterfeit trademark goods means any goods, including packaging, bearing without authorisation a trademark that is identical to the trademark validly registered in respect of such goods, or that cannot be distinguished in its essential aspects from such a trademark, and that thereby infringes the rights of the owner of the trademark in question under the law of the country of importation.

17-27 For the purposes of paragraphs 19 through 24, pirated copyright goods means any goods that are copies made without the consent of the right holder or person duly authorised by the right holder in the country of production and that 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.

17-28 A Party may comply with paragraph 26(b) in relation to exportation through its measures concerning distribution or trafficking.

17-29 Each Party shall provide that items that are subject to seizure pursuant to any such judicial order need not be individually identified so long as they fall within general categories specified in the order.

17-30 Paragraph 29(b) is without prejudice to the availability of defences to copyright infringement that are of general applicability.

17-31 Either Party may request consultations with the other Party to consider how to address under this paragraph functions of a similar nature to the functions identified in paragraphs (A) through (D) above that a Party identifies after the entry into force of this Agreement.

18-1 Australia provides labour protections for children and young people primarily through laws and regulations that regulate age levels for compulsory education.

19-1 For the purposes of this Article, the primary purpose of a particular statutory or regulatory provision shall be determined by reference to its primary purpose, rather than to the primary purpose of the statute or regulation of which it is part. A particular provision whose primary purpose is not the protection of the environment or the prevention of a danger to human, animal, or plant life or health is not an environmental law as defined by this Article.

20-1 For avoidance of doubt, “wherever possible” shall not be construed as requiring a Party to provide treatment in relation to persons, goods, or services of the other Party that is more favourable than that which the Party provides to its own persons, goods, or services.

20-2 For avoidance of doubt, ‘review’ includes merits (de novo) review only where provided for under the Party’s law.

22-1 For the avoidance of doubt, nothing in this exception to the obligation imposed by sub-paragraph 4(a) allows a Party to condition the receipt or continued receipt of an advantage relating to the purchase or consumption of particular services on the nationality of the service supplier.

22-2 For the purposes of this paragraph the public interest includes, for Australia, compliance with the Privacy Act (Cth) 1988.