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AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND
[ Index > Chapters > 1-9 > 10-21 ]
CHAPTER TEN ARTICLE 10.1: SCOPE AND COVERAGE 1. This Chapter applies to measures adopted or maintained by a Party affecting cross-border trade in services by service suppliers of the other Party. Such measures include measures affecting:
2. For purposes of this Chapter, measures adopted or maintained by a Party means measures adopted or maintained by:
3. Articles 10.4, 10.7, and 10.8 also apply to measures by a Party affecting the supply of a service in its territory by a BIT investment. 4. This Chapter does not apply to:
5. This Chapter does not impose any obligation on a Party with respect to a national of the other Party seeking access to its employment market, or employed on a permanent basis in its territory, and does not confer any right on that national with respect to that access or employment. 6. This Chapter does not apply to services supplied in the exercise of governmental authority within the territory of each respective Party. A service supplied in the exercise of governmental authority means any service that is supplied neither on a commercial basis, nor in competition with one or more service suppliers. ARTICLE 10.2: NATIONAL TREATMENT 1. Each Party shall accord to service suppliers of the other Party treatment no less favorable than it accords, in like circumstances, to its own service suppliers. 2. The treatment to be accorded by a Party under paragraph 1 means, with respect to a regional level of government, treatment no less favorable than the most favorable treatment accorded, in like circumstances, by that regional level of government to service suppliers of the Party of which it forms a part. ARTICLE 10.3: MOST-FAVORED-NATION TREATMENT Each Party shall accord to service suppliers of the other Party treatment no less favorable than that it accords, in like circumstances, to service suppliers of a non-Party. ARTICLE 10.4: MARKET ACCESS 1. Neither Party may adopt or maintain, either on the basis of a regional subdivision or on the basis of its entire territory, measures that:
ARTICLE 10.5: LOCAL PRESENCE Neither Party may require a service supplier of the other Party to establish or maintain a representative office or any form of enterprise, or to be resident, in its territory as a condition for the cross-border supply of a service. ARTICLE 10.6: NON-CONFORMING MEASURES 1. Articles 10.2, 10.3, 10.4, and 10.5 do not apply to:
2. Articles 10.2, 10.3, 10.4, and 10.5 do not apply to any measure that a Party adopts or maintains with respect to sectors, sub-sectors, or activities as set out in its Schedule to Annex II. 3. Annex 10-A sets out specific commitments by the Parties. ARTICLE 10.7: DOMESTIC REGULATION 1. Where a Party requires authorization for the supply of a service, the Party’s competent authorities shall, within a reasonable period after the submission of an application considered complete under its laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the competent authorities of the Party shall provide, without undue delay, information concerning the status of the application. This obligation shall not apply to authorization requirements that are within the scope of Article 10.6.2. 2. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards, and licensing requirements do not constitute unnecessary barriers to trade in services, each Party shall endeavor to ensure, as appropriate for individual sectors, that such measures are:
3. If the results of the negotiations related to Article VI:4 of GATS (or the results of any similar negotiations undertaken in other multilateral fora in which both Parties participate) enter into effect for both Parties, this Article shall be amended, as appropriate, after consultations between the Parties, to bring those results into effect under this Agreement. The Parties agree to coordinate on such negotiations, as appropriate. ARTICLE 10.8: TRANSPARENCY IN DEVELOPMENT AND APPLICATION OF REGULATIONS2 Further to Chapter 17 (Transparency): 1. Each Party shall establish or maintain appropriate mechanisms for responding to inquiries from interested persons regarding its regulations relating to the subject matter of this Chapter. 2. If a Party does not provide advance notice of and opportunity for comment on proposed regulations relating to the subject matter of this Chapter pursuant to Article 17.1 (Publication), it shall, to the extent possible, address in writing the reasons therefore. 3. At the time it adopts final regulations relating to the subject matter of this Chapter, a Party shall, to the extent possible, including upon request, address in writing substantive comments received from interested persons with respect to the proposed regulations. 4. To the extent possible, each Party shall allow reasonable time between publication of final regulations relating to the subject matter of this Chapter and their effective date. ARTICLE 10.9: MUTUAL RECOGNITION 1. For the purposes of the fulfilment, in whole or in part, of its standards or criteria for the authorization, licensing, or certification of services suppliers, and subject to the requirements of paragraph 4, a Party may recognize the education or experience obtained, requirements met, or licenses or certifications granted in a particular country, including the other Party and non-Parties. Such recognition, which may be achieved through harmonization or otherwise, may be based upon an agreement or arrangement with the country concerned or may be accorded autonomously. 2. Where a Party recognizes, autonomously or by agreement or arrangement, the education or experience obtained, requirements met, or licenses or certifications granted in the territory of a non-Party, nothing in Article 10.3 shall be construed to require the Party to accord such recognition to the education or experience obtained, requirements met, or licenses or certifications granted in the territory of the other Party. 3. A Party that is a party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, shall afford adequate opportunity for the other Party, if the other Party is interested, to negotiate its accession to such an agreement or arrangement or to negotiate a comparable one with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that education, experience, licenses, or certifications obtained or requirements met in that other Party’s territory should be recognized. 4. Neither Party may accord recognition in a manner that would constitute a means of discrimination between countries in the application of its standards or criteria for the authorization, licensing, or certification of services suppliers, or a disguised restriction on trade in services. 5. Annex 10-B applies to measures adopted or maintained by a Party relating to the licensing or certification of professional service suppliers as set out in that Annex. ARTICLE 10.10: TRANSFERS AND PAYMENTS 1. Each Party shall permit all transfers and payments relating to the cross-border supply of services to be made freely and without delay into and out of its territory. 2. Each Party shall permit such transfers and payments relating to the cross-border supply of services to be made in a freely usable currency at the market rate of exchange prevailing at the time of transfer. 3. Notwithstanding paragraphs 1 and 2, a Party may prevent a transfer or payment through the equitable, non-discriminatory, and good faith application of its law relating to:
ARTICLE 10.11: DENIAL OF BENEFITS 1. A Party may deny the benefits of this Chapter to a service supplier of the other Party if the service is being supplied by an enterprise owned or controlled by persons of a non-Party, and the denying Party:
2. Subject to Article 19.5 (Consultations), a Party may deny the benefits of this Chapter to a service supplier of the other Party if the service is being supplied by an enterprise that has no substantial business activities in the territory of the other Party and persons of a non-Party, or of the denying Party, own or control the enterprise. ARTICLE 10.12: IMPLEMENTATION The Parties shall meet annually, and as otherwise agreed, on any issues or questions of mutual interest arising from the implementation of this Chapter. ARTICLE 10.13: DEFINITIONS
cross-border trade in services or cross-border supply of services means the supply of a service:
but does not include the supply of a service in the territory of a Party by a BIT investment; enterprise means an enterprise as defined in Article 1.3 (Definitions), and a branch of an enterprise; enterprise of a Party means an enterprise organized or constituted under the laws of a Party; and a branch located in the territory of a Party and carrying out business activities there; professional services means services, the supply of which requires specialized post-secondary education, or equivalent training or experience, and for which the right to practice is granted or restricted by a Party, but does not include services supplied by trades-persons or vessel and aircraft crew members; service supplier means a person that seeks to supply or supplies a service;3 and specialty air services means any non-transportation air services, such as aerial fire-fighting, sightseeing, spraying, surveying, mapping, photography, parachute jumping, glider towing, and helicopter-lift for logging and construction, and other airborne agricultural, industrial, and inspection services.
ANNEX 10-A 1. For purposes of this Agreement, express delivery services means the collection, transport, and delivery of documents, printed matter, parcels, goods, or other items on an expedited basis, while tracking and maintaining control of these items throughout the supply of the service. Express delivery services do not include (1) air transport services, (2) services supplied in the exercise of government authority, and (3) maritime transport services.4 2. The Parties confirm their desire to maintain at least the level of open market access for express delivery services existing on the date this Agreement is signed. If a Party considers that the other Party is not maintaining such level of access, it may request consultations. The other Party shall afford adequate opportunity for consultations and, to the extent possible, shall provide information in response to inquiries regarding the level of access and any related matter. 3. Each Party shall ensure that, where a Party’s monopoly supplier of postal services competes, either directly or through an affiliated company, in the supply of express delivery services outside the scope of its monopoly rights, such supplier does not abuse its monopoly position to act in its territory in a manner inconsistent with the Party’s obligations under Articles 10.2, 10.3, or 10.4. The Parties also reaffirm their obligations under Article VIII of GATS. 4. Each Party confirms that it has no intention to direct revenues derived from the supply of postal monopoly services to confer an advantage to its own or any other competitive supplier of express delivery services. ANNEX 10-B Development of Professional Standards 1. The Parties shall encourage the relevant bodies in their respective territories to develop mutually acceptable standards and criteria for licensing and certification of professional service suppliers and to provide recommendations on mutual recognition to the Joint Committee established under Chapter Eighteen (Administration of the Agreement). 2. The standards and criteria referred to in paragraph 1 may be developed with regard to the following matters:
3. On receipt of a recommendation referred to in paragraph 1, the Joint Committee shall review the recommendation within a reasonable period to determine whether it is consistent with this Agreement. Based on the Joint Committee’s review, each Party shall encourage its respective competent authorities, where appropriate, to implement the recommendation within a mutually agreed time. Temporary Licensing 4. Where the Parties agree, each Party shall encourage the relevant bodies in its territory to develop procedures for the temporary licensing of professional service suppliers of the other Party. Review 5. The Joint Committee shall, at least once every three years, review the implementation of this Annex.
CHAPTER ELEVEN ARTICLE 11.1: SCOPE AND COVERAGE 1. This Chapter applies to measures adopted or maintained by a Party relating to:
2. Chapter Ten (Cross-Border Trade in Services) applies to measures described in Paragraph 1 only to the extent that such Chapter or an Article of such Chapter is incorporated into this Chapter.
3. This Chapter does not apply to measures adopted or maintained by a Party relating to:
except that this Chapter shall apply if a Party allows any of the activities or services referred to in subparagraphs (a) or (b) to be conducted by its financial institutions in competition with a public entity or a financial institution. ARTICLE 11.2: NATIONAL TREATMENT 1. Each Party shall accord to financial institutions of the other Party treatment no less favorable than that it accords to its own financial institutions, in like circumstances, with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of financial institutions. 2. For purposes of the national treatment obligations in Article 11.5.1, a Party shall accord to cross-border financial service suppliers of the other Party treatment no less favorable than that it accords to its own financial service suppliers, in like circumstances, with respect to the supply of the relevant service. ARTICLE 11.3: MOST-FAVORED-NATION TREATMENT 1. Each Party shall accord to financial institutions of the other Party and cross-border financial service suppliers of the other Party treatment no less favorable than that it accords to the financial institutions and cross-border financial service suppliers of a non-Party, in like circumstances. 2. A Party may recognize prudential measures of a non-Party in the application of measures covered by this Chapter. Such recognition may be:
3. A Party according recognition of prudential measures under paragraph 2 shall provide adequate opportunity to the other Party to demonstrate that circumstances exist in which there are or would be equivalent regulation, oversight, implementation of regulation, and, if appropriate, procedures concerning the sharing of information between the Parties. 4. Where a Party accords recognition of prudential measures under paragraph 2(c) and the circumstances set out in paragraph 3 exist, the Party shall provide adequate opportunity to the other Party to negotiate accession to the agreement or arrangement, or to negotiate a comparable agreement or arrangement. ARTICLE 11.4: MARKET ACCESS FOR FINANCIAL INSTITUTIONS Neither Party may adopt or maintain, with respect to financial institutions of the other Party or investors of the other Party seeking to establish such institutions, either on the basis of a regional subdivision or on the basis of its entire territory, measures that:
ARTICLE 11.5: CROSS-BORDER TRADE 1. Each Party shall permit, under terms and conditions that accord national treatment, cross-border financial service suppliers of the other Party to supply the services specified in Annex 11-A. 2. Each Party shall permit persons located in its territory, and its nationals wherever located, to purchase financial services from cross-border financial service suppliers of the other Party located in the territory of the other Party. This obligation does not require a Party to permit such suppliers to do business or solicit in its territory. Each Party may define “doing business” and “solicitation” for purposes of this obligation, provided that those definitions are not inconsistent with paragraph 1. 3. Without prejudice to other means of prudential regulation of cross-border trade in financial services, a Party may require the registration of cross-border financial service suppliers of the other Party and of financial instruments. ARTICLE 11.6: NEW FINANCIAL SERVICES2 1. Each Party shall permit a financial institution of the other Party, on request or notification to the relevant regulator, where required, to supply any new financial service that the first Party would permit its own financial institutions, in like circumstances, to supply under its domestic law, provided that the introduction of the new financial service does not require the Party to adopt a new law or modify an existing law. 2. A Party may determine the institutional and juridical form through which the new financial service may be supplied and may require authorization for the supply of the service. Where a Party would permit the new financial service and authorization is required, the decision shall be made within a reasonable time and authorization may only be refused for prudential reasons. ARTICLE 11.7: TREATMENT OF CERTAIN INFORMATION Article 20.4 (Disclosure of Information) does not apply to this Chapter. Nothing in this Chapter shall be construed to require a Party to furnish or allow access to:
ARTICLE 11.8: SENIOR MANAGEMENT AND BOARDS OF DIRECTORS 1. Neither Party may require financial institutions of the other Party to engage individuals of any particular nationality as senior managerial or other essential personnel. 2. Neither Party may require that more than a minority of the board of directors of a financial institution of the other Party be composed of nationals of the Party, persons residing in the territory of the Party, or a combination thereof. ARTICLE 11.9: NON-CONFORMING MEASURES 1. Articles 11.2 through 11.5 and 11.8 do not apply to:
2. Annex 11-B sets out certain specific commitments by each Party. 3. A non-conforming measure set out in a Party’s Schedule to Annex I or II as a measure to which Article 10.2 (National Treatment), 10.3 (Most-Favored-Nation Treatment), or 10.4 (Market Access) does not apply shall be treated as a non-conforming measure to which Article 11.2, 11.3, or 11.4, as the case may be, does not apply, to the extent that the measure, sector, sub-sector, or activity set out in the Schedule of non-conforming measures is covered by this Chapter. ARTICLE 11.10: EXCEPTIONS 1. Notwithstanding any other provision of this Chapter or Chapters Twelve (Telecommunications) or Thirteen (Electronic Commerce), including specifically Article 12.16 (Relationship to Other Chapters), and in addition Article 10.1.3 (Scope and Coverage) with respect to the supply of financial services in the territory of a Party, neither Party shall be prevented from adopting or maintaining measures for prudential reasons,4 including for the protection of investors, depositors, policy holders, or persons to whom a fiduciary duty is owed by a financial institution or cross-border financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of this Agreement referred to in this paragraph, they shall not be used as a means of avoiding the Party’s commitments or obligations under such provisions. 2. Nothing in this Chapter or Chapters Twelve (Telecommunications) or Thirteen (Electronic Commerce), including specifically Article 12.16 (Relationship to Other Chapters), and in addition Article 10.1.3 (Scope and Coverage) with respect to the supply of financial services in the territory of a Party, applies to non-discriminatory measures of general application taken by any public entity in pursuit of monetary and related credit policies or exchange rate policies. This paragraph shall not affect a Party’s obligations under Article 10.10 (Transfers and Payments). 3. Notwithstanding Article 10.10 (Transfers and Payments), as incorporated into this Chapter, a Party may prevent or limit transfers by a financial institution or cross-border financial service supplier to, or for the benefit of, an affiliate of or person related to such institution or supplier, through the equitable, non-discriminatory, and good faith application of measures relating to maintenance of the safety, soundness, integrity, or financial responsibility of financial institutions or cross-border financial service suppliers. This paragraph does not prejudice any other provision of this Agreement that permits a Party to restrict transfers. 4. For greater certainty, nothing in this Chapter shall be construed to prevent the adoption or enforcement by a Party of measures necessary to secure compliance with laws or regulations that are not inconsistent with this Chapter, including those relating to the prevention of deceptive and fraudulent practices or to deal with the effects of a default on financial services contracts, subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on financial institutions of the other Party or cross-border trade in financial services, as covered by this Chapter. ARTICLE 11.11: TRANSPARENCY 1. The Parties recognize that transparent regulations and policies governing the activities of financial institutions and cross-border financial service suppliers are important in facilitating both access of foreign financial institutions and foreign cross-border financial service suppliers to, and their operations in, each other’s market. Each Party commits to promote regulatory transparency in financial services. 2. In lieu of Article 17.1 (Publication), each Party shall, to the extent practicable,
3. At the time it adopts final regulations of general application relating to the subject matter of this Chapter, each Party should, to the extent practicable, address in writing substantive comments received from interested persons with respect to the proposed regulations. 4. To the extent practicable, each Party should allow reasonable time between publication of such final regulations and their effective date. 5. Each Party shall ensure that the rules of general application adopted or maintained by self-regulatory organizations of the Party are promptly published or otherwise made available in such a manner as to enable interested persons to become acquainted with them. 6. Each Party shall maintain or establish appropriate mechanisms for responding to inquiries from interested persons regarding measures of general application relating to the subject matter of this Chapter. 7. Each Party’s regulatory authorities shall make available to interested persons their requirements, including any documentation required, for completing applications relating to the supply of financial services. 8. On the request of an applicant, a Party’s regulatory authority shall inform the applicant of the status of its application. If the authority requires additional information from the applicant, it shall notify the applicant without undue delay. 9. A Party’s regulatory authority shall make an administrative decision on a completed application of a financial institution or a cross-border financial service supplier of the other Party relating to the supply of a financial service within 120 days, and shall promptly notify the applicant of the decision. An application shall not be considered complete until all relevant hearings are held and all necessary information is received. Where it is not practicable for a decision to be made within 120 days, the regulatory authority shall notify the applicant without undue delay and shall endeavor to make the decision within a reasonable time thereafter. ARTICLE 11.12: SELF-REGULATORY ORGANIZATIONS Where a Party requires a financial institution or a cross-border financial service supplier of the other Party to be a member of, participate in, or have access to a self-regulatory organization to provide a financial service in or into its territory, the Party shall ensure observance of the obligations of Articles 11.2 and 11.3 by such self-regulatory organization. ARTICLE 11.13: PAYMENT AND CLEARING SYSTEMS Under terms and conditions that accord national treatment, each Party shall grant financial institutions of the other Party access to payment and clearing systems operated by public entities, and to official funding and refinancing facilities available in the normal course of ordinary business. This paragraph is not intended to confer access to the Party’s lender of last resort facilities. ARTICLE 11.14: DOMESTIC REGULATION Each Party shall ensure that all measures of general application to which this Chapter applies are administered in a reasonable, objective, and impartial manner. ARTICLE 11.15: EXPEDITED AVAILABILITY OF INSURANCE SERVICES The Parties recognize the importance of maintaining and developing regulatory procedures to expedite the offering of insurance services by licensed suppliers. ARTICLE 11.16: DENIAL OF BENEFITS 1. A Party may deny the benefits of this Chapter to an investor of the other Party that is an enterprise of such other Party and to a financial institution of the other Party that is a BIT investment of that investor if persons of a non-Party own or control the enterprise and the denying Party:
2. A Party may deny the benefits of this Chapter to an investor of the other Party that is an enterprise of such other Party and to a financial institution of the other Party that is a BIT investment of that investor if the enterprise has no substantial business activities in the territory of the other Party and persons of a non-Party, or of the denying Party, own or control the enterprise. ARTICLE 11.17: INFORMATION REQUIREMENTS Notwithstanding Articles 11.2 and 11.3, a Party may require a financial institution of the other Party to provide information concerning the financial institution solely for informational or statistical purposes. The Party shall protect any business information that is confidential from any disclosure that would prejudice the competitive position of the financial institution. Nothing in this paragraph shall be construed to prevent a Party from otherwise obtaining or disclosing information in connection with the equitable and good faith application of its law. ARTICLE 11.18: FINANCIAL SERVICES SUBCOMMITTEE 1. The Parties hereby establish a Financial Services Subcommittee. The principal representative of each Party shall be an official of the Party’s authority responsible for financial services set out in Annex 11-D. 2. The Subcommittee shall:
3. The Subcommittee shall meet annually, or as otherwise agreed, to assess the functioning of this Agreement as it applies to financial services. The Subcommittee shall inform the Joint Committee established under Chapter Eighteen (Administration) of the results of each meeting. ARTICLE 11.19: CONSULTATIONS 1. A Party may request consultations with the other Party regarding any matter arising under this Agreement that affects financial services. The other Party shall give sympathetic consideration to the request. The Parties shall report the results of their consultations to the Financial Services Subcommittee. 2. Consultations under this Article shall include officials of the authorities specified in Annex 11-D. ARTICLE 11.20: DISPUTE SETTLEMENT 1. Chapter Nineteen (Dispute Settlement) applies as modified by this Article to the settlement of disputes arising under this Chapter. 2. When a Party claims that a dispute arises under this Chapter, Article 19.7 (Establishment of Panel) shall apply, except that:
3. Financial services panelists shall:
4. Notwithstanding Article 19.11 (Non-Implementation), where a panel finds a measure to be inconsistent with this Agreement and the measure under dispute affects:
ARTICLE 11.21: DEFINITIONS For purposes of this Chapter: cross-border financial service supplier of a Party means a person of a Party that is engaged in the business of supplying a financial service within the territory of the Party and that seeks to supply or supplies a financial service through the cross-border supply of such services; cross-border trade in financial services or cross-border supply of financial services means the supply of a financial service:
but does not include the supply of a financial service in the territory of a Party by an investor of the other Party, or a BIT investment, in a financial institution of the other Party; financial institution means any financial intermediary or other enterprise that is authorized to do business and regulated or supervised as a financial institution under the law of the Party in whose territory it is located; financial institution of the other Party means a financial institution, including a branch, located in the territory of a Party that is controlled by persons of the other Party; financial service means any service of a financial nature. Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance), as well as services incidental or auxiliary to a service of a financial nature. Financial services include the following activities: Insurance and insurance-related services
Banking and other financial services (excluding insurance)
financial service supplier of a Party means a person of a Party that is engaged in the business of supplying a financial service within the territory of that Party; investor of a Party means a Party or state enterprise thereof, or a national or an enterprise of a Party, that seeks to make, is making, or has made a BIT investment in a financial institution in the territory of the other Party; new financial service means a financial service not supplied in the Party’s territory that is supplied within the territory of the other Party, and includes any new form of delivery of a financial service or the sale of a financial product that is not sold in the Party’s territory; person of a Party means “person of a Party” as defined in Article 1.3 (Definitions) and, for greater certainty, does not include a branch of an enterprise of a non-Party; public entity means a central bank or monetary authority of a Party, or any financial institution owned or controlled by a Party; and self-regulatory organization means any non-governmental body, including any securities or futures exchange or market, clearing agency, or other organization or association, that exercises its own or delegated regulatory or supervisory authority over financial service suppliers or financial institutions. ANNEX 11-A Insurance and insurance-related services United States 1. For the United States, Article 11.5.1 applies to the cross-border supply of or trade in financial services as defined in subparagraph (a) of the definition of cross-border supply of financial services in Article 11.21 with respect to:
2. For the United States, Article 11.5.1 applies to the cross-border supply of or trade in financial services as defined in subparagraph (c) of the definition of cross-border supply of financial services in Article 11.21 with respect to insurance services. Bahrain 1. For Bahrain, Article 11.5.1 applies to the cross-border supply of or trade in financial services as defined in subparagraph (a) of the definition of cross-border supply of financial services in Article 11.21 with respect to:
2. For Bahrain, Article 11.5.1 applies to the cross-border supply of or trade in financial services as defined in subparagraph (c) of the definition of cross-border supply of financial services in Article 11.21 with respect to insurance services. 3. Bahrain’s commitments pursuant to subparagraph 1(a)(i), and brokerage of such risks, shall apply one year after the entry into force of this Agreement, or when Bahrain has implemented the necessary amendments in its relevant legislation, whichever occurs earlier. Banking and other financial services (excluding insurance) Each Party shall undertake the obligations of Article 11.5.1 with respect to the provision and transfer of financial information and financial data processing and related software as referred to in subparagraph (o) of the definition of financial service in Article 11.21, and advisory and other auxiliary services, excluding intermediation, as referred to in subparagraph (p) of the definition of financial service. ANNEX 11-B
Expedited Availability of Insurance The Parties understand that Bahrain requires prior product approval before the introduction of new insurance products. The Bahrain Monetary Agency (BMA) shall provide that once an enterprise seeking approval for insurance products files all the required information with the BMA, the BMA shall grant approval or issue disapproval according to its regulations for the sale of the new product within 60 days. The Parties understand that the BMA does not maintain any limitations on the number or frequency of new product introductions. Portfolio Management 1. A Party shall allow a financial institution (other than a trust company), organized outside its territory, to provide investment advice and portfolio management services, excluding (1) custodial services, (2) trustee services, and (3) execution services that are not related to managing a collective investment scheme, to a collective investment scheme located in the Party’s territory. This commitment is subject to Article 11.1 and to the provisions of Article 11.5.3. 2. For purposes of paragraph 1, collective investment scheme means:
New Financial Services In addition to Bahrain’s commitment to allow a new financial service to be supplied consistent with Article 11.6, Bahrain undertakes to consult with the United States, on request, in circumstances where an application by a financial institution of the United States to supply a new service has been denied. Insurance 1. In the context of Bahrain’s review of the regulatory framework for the insurance sector, Bahrain shall ensure that any laws, regulations, and rules that are developed as a result of the review will treat enterprises of the United States on a non-discriminatory basis, subject only to any relevant non-conforming measures listed in Bahrain’s Schedule to Annex III. 2. Bahrain shall ensure that insurance suppliers established in the territory of Bahrain prior to the date of signature of this Agreement are allowed to maintain the scope of their business activities in existence on that date, as well as any increase in the scope of such business activities authorized prior to the date of entry into force of this Agreement. For greater certainty, this paragraph shall not be construed to prevent Bahrain from applying future non-discriminatory prudential measures to such suppliers.
ANNEX 11-C The Parties recognize that certain requirements of the Bahrain Stock Exchange are not consistent with the obligations of Articles 11.2 and 11.3. Bahrain shall ensure that, no later than 24 months from the date of entry into force of this Agreement, self-regulatory organizations in Bahrain will modify their regulations, including those dealing with requirements for broker/dealers, in order to bring them into compliance with these obligations. Until that time, Bahrain confirms that U.S. financial institutions established in Bahrain will be granted membership in and allowed to operate on the Bahrain Stock Exchange, provided that they meet applicable requirements maintained by the Exchange.
ANNEX 11-D The authority of each Party responsible for financial services is:
ANNEX 11-E The Parties recognize that the term “financial service” is broadly defined for purposes of this Chapter, and that numerous financial services are capable of being offered or supplied in various forms. The United States notes that the term “financial service” is comprehensive enough to include Shariah-compliant financial services and, in accordance with its commitments and obligations under this Chapter, will consider proposals by financial institutions of Bahrain to offer such services in the United States to the extent consistent with U.S. law, including any regulatory or supervisory requirements.
CHAPTER TWELVE ARTICLE 12.1: SCOPE AND COVERAGE 1. This Chapter applies to measures affecting trade in the telecommunications sector. 2. Except to ensure that enterprises operating broadcast stations and cable systems have continued access to and use of public telecommunications services, this Chapter does not apply to any measure relating to broadcast or cable distribution of radio or television programming. 3. Nothing in this Chapter shall be construed to:
ARTICLE 12.2: ACCESS TO AND USE OF PUBLIC TELECOMMUNICATIONS SERVICES 1. Each Party shall ensure that service suppliers of the other Party have access to and use of any public telecommunications service, including leased circuits, offered in its territory or across its borders, on reasonable and non-discriminatory terms and conditions, including as set out in paragraphs 2 through 4. 2. Each Party shall ensure that service suppliers of the other Party are permitted to:
3. Each Party shall ensure that service suppliers of the other Party may use public telecommunications services for the movement of information in its territory or across its borders and for access to information contained in databases or otherwise stored in machine-readable form in the territory of either Party. 4. Notwithstanding paragraph 3, a Party may take such measures as are necessary to ensure the security and confidentiality of messages, provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or disguised restriction on trade in services. ARTICLE 12.3: OBLIGATIONS RELATING TO SUPPLIERS OF PUBLIC TELECOMMUNICATIONS SERVICES2 Interconnection 1.
Number Portability 2. Each Party shall ensure that suppliers of public telecommunications services in its territory provide number portability to the extent technically feasible, and on reasonable terms and conditions.3 Dialing Parity 3. Each Party shall ensure that suppliers of public telecommunications services in its territory provide dialing parity to suppliers of public telecommunications services of the other Party.4 ARTICLE 12.4: ADDITIONAL OBLIGATIONS RELATING TO MAJOR SUPPLIERS OF PUBLIC TELECOMMUNICATIONS SERVICES5 Treatment by Major Suppliers 1. Each Party shall ensure that a major supplier in its territory accords suppliers of public telecommunications services of the other Party, licensed within its territory, no less favorable treatment than such major supplier accords to its subsidiaries, its affiliates, or non-affiliated service suppliers regarding:
Competitive Safeguards 2.
Resale 3. Each Party shall ensure that a major supplier in its territory:
Unbundling of Network Elements 4. Each Party shall provide its telecommunications regulatory body the authority to require a major supplier in its territory to offer access to network elements on an unbundled basis on terms and conditions, and at cost-oriented rates, that are reasonable, non-discriminatory, and transparent for the supply of public telecommunications services. Interconnection 5.
Provisioning and Pricing of Leased Circuits Services 6.
Co-Location 7.
Poles, Ducts, and Conduits 8. Each Party shall ensure that a major supplier in its territory affords access to poles, ducts, and conduits to suppliers of public telecommunications services of the other Party on terms and conditions, and at rates, that are reasonable, non-discriminatory, and transparent. ARTICLE 12.5: SUBMARINE CABLE SYSTEMS Each Party shall ensure that any supplier that it authorizes to operate a submarine cable system in its territory as a public telecommunications service accords reasonable and non-discriminatory treatment with respect to access to that system (including landing facilities) to suppliers of public telecommunications services. ARTICLE 12.6: CONDITIONS FOR THE SUPPLY OF VALUE-ADDED SERVICES 1. Neither Party may require an enterprise in its territory that it classifies as a supplier of value-added services and that supplies those services to facilities that it does not own to:
2. Notwithstanding paragraph 1, a Party may take the actions described in paragraph 1 to remedy a practice of a supplier of value-added services that the Party has found in a particular case to be anti-competitive under its law or regulations, or to otherwise promote competition or safeguard the interests of consumers. ARTICLE 12.7: INDEPENDENT REGULATORY BODIES AND GOVERNMENT OWNERSHIP 1. Each Party shall ensure that its telecommunications regulatory body is separate from, and not accountable to, any supplier of public telecommunications services. To this end, each Party shall ensure that its telecommunications regulatory body does not hold a financial interest or maintain an operating role in any such supplier. 2. Each Party shall ensure that the decisions and procedures of its telecommunications regulatory body are impartial with respect to all interested persons. To this end, each Party shall ensure that any financial interest that it holds in a supplier of public telecommunications services does not influence the decisions and procedures of its telecommunications regulatory body. 3. Neither Party may accord more favorable treatment to a supplier of public telecommunications services or to a supplier of value-added services in its territory than that accorded to a like supplier of the other Party on the basis that the supplier receiving more favorable treatment is owned by the national government of the Party. 4. Each Party shall maintain the absence of or eliminate as soon as feasible national government ownership in any supplier of public telecommunications services. Where a Party has an ownership interest in a supplier of public telecommunications services and intends to reduce or eliminate its interest, it shall notify the other Party of its intention as soon as possible. ARTICLE 12.8: UNIVERSAL SERVICE Each Party shall administer any universal service obligation that it maintains in a transparent, non-discriminatory, and competitively neutral manner and shall ensure that its universal service obligation is not more burdensome than necessary for the kind of universal service that it has defined. ARTICLE 12.9: LICENSING PROCESS 1. When a Party requires a supplier of public telecommunications services to have a license, the Party shall make publicly available:
2. Each Party shall ensure that, on request, an applicant receives the reasons for its denial of a license. ARTICLE 12.10: ALLOCATION AND USE OF SCARCE RESOURCES 1. Each Party shall administer its procedures for the allocation and use of scarce telecommunications resources, including frequencies, numbers, and rights of way,8 in an objective, timely, transparent, and non-discriminatory manner. 2. Each Party shall make publicly available the current state of allocated frequency bands but shall not be required to provide detailed identification of frequencies allocated for specific government uses. 3. A Party’s measures allocating and assigning spectrum and managing frequency are not measures that are per se inconsistent with Article 10.4 (Market Access). Accordingly, each Party retains the right to establish and apply spectrum and frequency management policies that may have the effect of limiting the number of suppliers of public telecommunications services, provided it does so in a manner consistent with other provisions of this Agreement. This includes the ability to allocate frequency bands, taking into account current and future needs and spectrum availability. ARTICLE 12.11: ENFORCEMENT Each Party shall provide its competent authority the authority to enforce the Party’s measures relating to the obligations set out in Articles 12.2 through 12.5. Such authority shall include the ability to impose effective sanctions, which may include financial penalties, injunctive relief (on an interim or final basis), or the modification, suspension, and revocation of licenses. ARTICLE 12.12: RESOLUTION OF TELECOMMUNICATIONS DISPUTES Further to Articles 17.3 (Administrative Proceedings) and 17.4 (Review and Appeal), each Party shall ensure the following: Recourse to Telecommunications Regulatory Bodies
Review and Appeal
ARTICLE 12.13: TRANSPARENCY OF MEASURES RELATING TO TELECOMMUNICATIONS Further to Article 17.1 (Publication), each Party shall ensure that:
ARTICLE 12.14: FLEXIBILITY IN THE CHOICE OF TECHNOLOGIES Neither Party may prevent suppliers of public telecommunications services from having the flexibility to choose the technologies that they use to supply their services, including commercial mobile wireless services, subject to requirements necessary to satisfy legitimate public policy interests. ARTICLE 12.15: FORBEARANCE 1. The Parties recognize the importance of relying on competitive market forces to provide wide choice in the supply of telecommunications services. To this end, each Party may forbear, to the extent provided for in its law, from applying a regulation to a service that the Party classifies as a public telecommunications service, if its telecommunications regulatory body determines that:
2. For greater certainty, each Party shall subject its regulatory body’s decision to forebear to judicial review in accordance with subparagraph (c) of Article 12.12. ARTICLE 12.16: RELATIONSHIP TO OTHER CHAPTERS In the event of any inconsistency between this Chapter and another Chapter, this Chapter shall prevail to the extent of the inconsistency. ARTICLE 12.17: DEFINITIONS For purposes of this Chapter: co-location (physical) means physical access to space in order to install, maintain, or repair equipment, at premises owned or controlled and used by a supplier to supply public telecommunications services; co-location (virtual) means the ability to lease and control equipment of a supplier of public telecommunications services for the purpose of interconnecting with that supplier or accessing its unbundled network elements;commercial mobile services means public telecommunications services supplied through mobile wireless means; cost-oriented means based on cost, and may include a reasonable profit, and may involve different cost methodologies for different facilities or services; dialing parity means the ability of an end-user to use an equal number of digits to access a like public telecommunications service, regardless of which public telecommunications services supplier the end-user chooses; end-user means a final consumer of or final subscriber to a public telecommunications service; enterprise means an “enterprise” as defined in Article 1.3 (Definitions) and includes a branch of an enterprise; essential facilities means facilities of a public telecommunications network or service that:
interconnection means linking with suppliers providing public telecommunications services in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier; leased circuits means telecommunications facilities between two or more designated points that are set aside for the dedicated use of, or availability to, a particular customer or other user; major supplier means a supplier of public telecommunications services that has the ability to materially affect the terms of participation (having regard to price and supply) in the relevant market for public telecommunications services as a result of
network element means a facility or equipment used in supplying a public telecommunications service, including features, functions, and capabilities provided by means of that facility or equipment; non-discriminatory means treatment no less favorable than that accorded to any other user of like public telecommunications services in like circumstances; number portability means the ability of end-users of public telecommunications services to retain, at the same location, the same telephone numbers without impairment of quality, reliability, or convenience when switching between the same category of suppliers of public telecommunications services; public telecommunications service10 means any telecommunications service that a Party requires, explicitly or in effect, to be offered to the public generally. Such services may include, inter alia, telephone and data transmission typically involving customer-supplied information between two or more points without any end-to-end change in the form or content of the customer’s information, and excludes value-added services; reference interconnection offer means an interconnection offer extended by a major supplier and filed with or approved by a telecommunications regulatory body11 that is sufficiently detailed to enable a supplier of public telecommunications services that is willing to accept its rates, terms, and conditions to obtain interconnection without having to engage in negotiations with the major supplier; service supplier of the other Party means, with respect to a Party, a person that is either a BIT investment in the territory of the Party or a person of the other Party and that seeks to supply or supplies services in or into the territory of the Party, and includes a supplier of public telecommunications services;telecommunications means the transmission and reception of signals by any electromagnetic means, including by photonic means; telecommunications regulatory body means a national body responsible for the regulation of telecommunications;user means a service consumer or a service supplier; and value-added services means services that add value to telecommunications services through enhanced functionality. In the United States, these are services as defined in 47 U.S.C. § 153(20). Paragraphs 2 and 3 of Article 12.3 do not apply to the United States with respect to suppliers of commercial mobile services. In addition, a state regulatory authority of the United States may exempt a rural local exchange carrier, as defined in Section 251(f)(2) of the Communications Act of 1934, as amended, from the obligations contained in paragraphs 2 and 3 of Article 12.3. 1. Article 12.4 does not apply to the United States with respect to a rural telephone company, as defined in section 3(37) of the Communications Act of 1934, as amended, unless a state regulatory authority orders that the requirements described in that Article be applied to the company. In addition, a state regulatory authority may exempt a rural local exchange carrier, as defined in section 251(f)(2) of the Communications Act of 1934, as amended, from the obligations contained in Article 12.4. 2. Paragraphs 3 through 8 of Article 12.4 do not apply to the United States with respect to suppliers of commercial mobile services.
CHAPTER THIRTEEN ARTICLE 13.1: GENERAL The Parties recognize 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 13.2: ELECTRONIC SUPPLY OF SERVICES For greater certainty, the Parties affirm that measures affecting the supply of a service using electronic means are subject to the obligations contained in the relevant provisions of Chapters Ten (Cross-Border Trade in Services) and Eleven (Financial Services), subject to any exceptions or non-conforming measures set out in the Agreement that are applicable to such obligations. ARTICLE 13.3: CUSTOMS DUTIES 1. Neither Party may impose customs duties, fees, or other charges1 on or in connection with the importation or exportation of digital products by electronic transmission. 2. Each Party shall determine the customs value of an imported carrier medium bearing a digital product of the other Party based on the cost or value of the carrier medium alone, without regard to the cost or value of the digital product stored on the carrier medium. ARTICLE 13.4: NON-DISCRIMINATORY TREATMENT OF DIGITAL PRODUCTS 1. Neither Party may accord less favorable treatment to some digital products than it accords to other like digital products:
2. Neither Party may accord less favorable treatment to digital products:
3. Paragraphs 1 and 2 do not apply to any non-conforming measure described in Articles 10.6 (Non-Conforming Measures) and 11.9 (Non-Conforming Measures). ARTICLE 13.5: DEFINITIONS For the purposes of this Chapter: carrier medium means any physical object capable of storing a digital product, by any existing method or method later developed, and from which a digital product can be perceived, reproduced, or communicated, directly or indirectly, and includes an optical medium, a floppy disk, and a magnetic tape; digital products means computer programs, text, video, images, sound recordings, and other products that are digitally encoded,2 regardless of whether they are fixed on a carrier medium or transmitted electronically; electronic transmission or transmitted electronically means the transfer of digital products using any electromagnetic or photonic means; and using electronic means means employing computer processing.
CHAPTER FOURTEEN ARTICLE 14.1: GENERAL PROVISIONS 1. Each Party shall, at a minimum, give effect to this Chapter. International Agreements and Recommendations 2. Each Party shall ratify or accede to the following agreements:
3. Each Party shall make best efforts to ratify or accede to the following agreements:
More Extensive Protection and Enforcement 4. A Party may implement in its domestic law more extensive protection and enforcement of intellectual property rights than is required under this Chapter, provided that such protection and enforcement does not contravene this Chapter. National Treatment 5. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals1 of the other Party treatment no less favorable than it accords to its own nationals with regard to the protection2 and enjoyment of such intellectual property rights and any benefits derived from such rights. 6. A Party may derogate from paragraph 5 in relation to its judicial and administrative procedures, including any procedure requiring a national of the other Party to designate for service of process an address in its territory or to appoint an agent in its territory, provided that such derogation:
7. Paragraph 5 does not apply to procedures provided in multilateral agreements concluded under the auspices of the World Intellectual Property Organization in relation to the acquisition or maintenance of intellectual property rights. Application of Agreement to Existing Subject Matter and Prior Acts 8. Except as otherwise provided in this Chapter, including Article 14.4.5, 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 Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under the terms of this Chapter. 9. Except as otherwise provided in this Chapter, including Article14.4.5, 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 Party where the protection is claimed. 10. 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 11. Further to Article 17.1 (Publication), each Party shall ensure that all laws, regulations, and procedures concerning the protection or enforcement of intellectual property rights are in writing and are published,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, with the object of making the protection and enforcement of intellectual property rights transparent. ARTICLE 14.2: TRADEMARKS, INCLUDING GEOGRAPHICAL INDICATIONS 1. Neither Party may require, as a condition of registration, that signs be visually perceptible and neither Party may deny registration of a trademark solely on the grounds that the sign of which it is composed is a sound or that the sign includes a scent. 2. Each Party shall provide that trademarks shall include certification marks. Each Party shall also provide that signs that may serve, in the course of trade, as geographical indications may constitute certification or collective marks.4 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 (“common name”) including, inter alia, requirements concerning the relative size, placement or style of use of the trademark in relation to the common name, do not impair the use or effectiveness of trademarks used in relation to such good. 4. Each Party shall provide that the owner of a registered trademark 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 trademark is registered, where such use would result in a likelihood of confusion. 5. Each Party may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interest of the owner of the trademark and of third parties. 6. Article 6bis of the Paris Convention for the Protection of Industrial Property (1967) shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known trademark,5 whether registered or not, provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the trademark, and provided that the interests of the owner of the trademark are likely to be damaged by such use. 7. Each Party shall provide a system for the registration of trademarks, which shall include:
8. Each Party shall provide (a) a system for the electronic application, processing, registration, and maintenance of trademarks, and (b) a publicly available electronic database – including an on-line database – of trademark applications and registrations. 9.
10. Each Party shall provide that initial registration and each renewal of registration of a trademark shall be for a term of no less than 10 years. 11. Neither Party may require recordation of trademark licenses to establish the validity of the license, to assert any rights in a trademark, or for other purposes. 12. If a Party provides the means to apply for protection or petition for recognition of geographical indications, through a system of protection of trademarks or otherwise, it shall accept those applications and petitions without the requirement for intercession by a Party on behalf of its nationals and shall:
13. Each Party shall provide that grounds for refusing protection or recognition of a geographical indication include the following:
ARTICLE 14.3: DOMAIN NAMES ON THE INTERNET 1. 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 (UDRP), in order to address the problem of trademark cyber-piracy. 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 14.4: OBLIGATIONS PERTAINING TO COPYRIGHT AND RELATED RIGHTS 1. Each Party shall provide that authors, performers, and producers of phonograms6 have the right7 to authorize or prohibit all reproductions of their works, performances, and phonograms8, in any manner or form, permanent or temporary (including temporary storage in electronic form). 2. Each Party shall provide to authors, performers, and producers of phonograms the right of authorizing the making available to the public of the original and copies of their works, performances, and phonograms through sale or other transfer of ownership. 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 authorization 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 authorization of the author does not cease to exist because the authorization of the performer or producer is also required. Likewise, each Party shall establish that in cases where authorization 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 authorization of the performer or producer does not cease to exist because the authorization 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:
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 Articles 14.4 through 14.6. 6. Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right in a work, performance, or phonogram:
7.
8. In order to provide adequate and effective legal remedies to protect rights management information:
9. Each Party shall issue appropriate laws, orders, regulations, or administrative or executive decrees mandating that its agencies use computer software only as authorized by the right holder. Such measures shall actively regulate the acquisition and management of software for government use. 10.
ARTICLE 14.5: OBLIGATIONS PERTAINING SPECIFICALLY TO COPYRIGHT Without prejudice to the provisions of 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 authorize 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 14.6: OBLIGATIONS PERTAINING SPECIFICALLY TO RELATED RIGHTS 1. Each Party shall accord the rights provided for in this Chapter to the performers and producers of phonograms who are nationals of the other Party and to performances or phonograms first published or first fixed in the territory of the other Party. A performance or phonogram shall be considered first published in the territory of the other Party if it is published in that territory within 30 days of its original publication.9 2. Each Party shall provide to performers the right to authorize 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.
4. Neither Party shall subject the enjoyment and exercise of the rights of performers and producers of phonograms provided for in this Chapter to any formality. 5. For purposes of Articles 14.4 and 14.6, the following definitions apply with respect to performers and producers of phonograms:
ARTICLE 14.7: PROTECTION OF ENCRYPTED PROGRAM-CARRYING SATELLITE SIGNALS 1. Each Party shall make it:
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 programming signal or the content of such signal. ARTICLE 14.8: PATENTS 1. Each Party may exclude from patentability 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. Each Party may also exclude from patentability animals and diagnostic, therapeutic, and surgical procedures for the treatment of humans or animals. 2. Each Party shall make patents available for plant inventions. In addition, the Parties confirm that patents shall be available for any new uses or methods of using a known product, including products to be used for particular medical conditions, subject to the exclusions provided in Article 14.8.1 and the conditions of patentability. 3. Each 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 a patent may be revoked only on grounds that would have justified a refusal to grant the patent. A Party may also provide that fraud, misrepresentation, or inequitable conduct may be the basis for revoking or holding a patent unenforceable. Where a Party provides proceedings that permit a third party to oppose the grant of a patent, a Party shall not make such proceedings available prior to the grant of the patent. 5. Consistent with paragraph 3, if a Party permits a third person to use the subject matter of a subsisting patent solely 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 to meet requirements for approval to market the product once the patent expires, 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. 6.
For purposes of this paragraph, effective patent term means the period from the date of approval of the product until the original expiration date of the patent. 7. When a Party provides for the grant of a patent on the basis of a patent granted in another territory, that Party, at the request of the patent owner, shall extend the term of a patent granted under such procedure by a period equal to the period of the extension, if any, provided in respect of the patent granted by such other territory. 8. Each Party shall disregard information contained in public disclosures used to determine if an invention is novel or has an inventive step10 if the public disclosure was (a) made or authorized by, or derived from, the patent applicant and (b) occurs within 12 months prior to the date of filing of the application in the Party. 9. Each Party shall provide patent applicants with at least one opportunity to make amendments, corrections, and observations. 10. Each Party shall provide that a disclosure of a claimed invention is 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. 11. 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. ARTICLE 14.9: MEASURES RELATED TO CERTAIN REGULATED PRODUCTS 1.
2.
3. When a product is subject to a system of marketing approval pursuant to paragraph 1 or 2 and is also covered by a patent in the territory of that Party, the Party shall not alter the term of protection that it provides pursuant to paragraphs 1 and 2 in the event that the patent protection terminates on a date earlier than the end of the term of protection specified in paragraphs 1 and 2. 4. Where a Party permits, as a condition of approving the marketing of a pharmaceutical product, persons, other than the person originally submitting safety or efficacy information, to rely on evidence of safety or efficacy information of a product that was previously approved, such as evidence of prior marketing approval in the Party or in another territory, that Party:
ARTICLE 14.10: ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS General Obligations 1. Each Party shall provide that final judicial decisions or administrative rulings of general applicability pertaining to the enforcement of intellectual property rights shall be in writing and shall state any relevant findings of fact and the reasoning or the legal basis upon which the decisions are based. Each Party shall also provide that such decisions or rulings shall be published,11 or where such publication is not practicable, otherwise made publicly available, in a national language in such a manner as to enable governments and right holders to become acquainted with them. 2. Each Party shall publicize information on 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 purposes. Nothing in this paragraph shall require a Party to disclose confidential information that would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private. 3. The Parties understand that a decision that a Party makes on the distribution of enforcement resources shall not excuse that Party from complying with the provisions of this Chapter. 4. In civil, administrative, and criminal proceedings involving copyright or related rights, each Party shall provide for a presumption that, in the absence of proof to the contrary, the natural person or legal entity whose name is indicated as the author, producer, performer, or publisher of the work, performance, or phonogram in the usual manner, is the designated right holder in such work, performance, or phonogram. Each Party shall also provide for a presumption that, in the absence of proof to the contrary, the copyright or related right subsists in such subject matter. Civil and Administrative Procedures and Remedies 5. Each Party shall make available to right holders12 civil judicial procedures concerning the enforcement of any intellectual property right. 6. Each Party shall provide that:
7. In civil judicial proceedings, each Party shall, at least with respect to works, phonograms, and performances protected by copyright or related rights, and in cases of trademark counterfeiting, establish or maintain a system of pre-established damages, which shall be available upon the election of the right holder and shall function so as to constitute a deterrent to infringements and to compensate fully the right holder for the harm caused by the infringement. 8. Each Party shall provide that its judicial authorities, except in exceptional circumstances, have the authority to order, at the conclusion of the civil judicial proceedings concerning copyright or related rights infringement and trademark infringement, that the prevailing party be awarded payment of court costs or fees and reasonable attorneys’ fees by the losing party. Further, each Party shall provide that its judicial authorities, at least in exceptional circumstances, have the authority to order, at the conclusion of civil judicial proceedings concerning patent infringement, that the prevailing party be awarded payment of reasonable attorneys’ fees by the losing party. 9. In civil judicial proceedings concerning copyright or related rights 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:
11. Each Party shall provide that in civil judicial proceedings, the judicial authorities shall have the authority to order the infringer to provide any information that the infringer possesses regarding any person(s) or entities involved in any aspect of the infringement and regarding the means of production or the distribution channel of such goods or services, including the identification of third parties that are involved in the production and distribution of the infringing goods or services and their channels of distribution, and to provide this information to the right holder. 12. Each Party shall provide that its judicial authorities have the authority to fine or imprison, in appropriate cases, a party to a litigation who fails to abide by valid orders issued by such authorities, and impose sanctions on parties to a litigation, their counsel, experts or other persons subject to the court’s jurisdiction, for violation of its orders regarding the protection of confidential information produced or exchanged in a proceeding. 13. To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, each Party shall provide that such procedures conform to principles equivalent in substance to those set forth in this Chapter. 14. Each Party shall provide for civil remedies against the acts described in Article 14.4.7 and Article 14.4.8. Available civil remedies shall include at least:
15. In civil judicial proceedings, each Party shall provide that the judicial authorities have the authority to order a party to desist from an infringement, in order, inter alia, to prevent the entry into the channels of commerce in their jurisdiction of imported goods that involve the infringement of an intellectual property right immediately after customs clearance of such goods, or to prevent their exportation. 16. In the event that judicial or other authorities appoint experts, technical or otherwise, that must be paid by a party to a litigation, such costs should be closely related, inter alia, to the quantity and nature of work to be performed and should not unreasonably deter recourse to such proceedings. Provisional Measures 17. Parties shall act upon requests for relief inaudita altera parte expeditiously and generally execute such requests within 10 days, except in exceptional cases. 18. Each Party shall provide that its judicial authorities have the authority to require the plaintiff to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the plaintiff's right is being infringed or that such infringement is imminent, and to order the plaintiff to provide a reasonable security or equivalent assurance set at a level sufficient to protect the defendant and to prevent abuse, and so as not to unreasonably deter recourse to such procedures. 19. 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 20. Each Party shall provide that any right holder initiating procedures for suspension by its competent authorities of the release of suspected counterfeit or confusingly similar trademark goods, or pirated copyright goods13 into free circulation is required to provide adequate evidence to satisfy the competent authorities that, under the laws of the country 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 recognizable by its competent 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 registration is valid, whichever is shorter. 21. Each Party shall provide that its competent authorities have the authority to require an applicant 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 bond 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 copy. 22. Where its competent authorities have made a determination that goods are counterfeit or pirated, each Party shall grant its competent authorities 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. 23. Each Party shall provide that its competent authorities may initiate border measures ex officio, with respect to imported, exported, or in transit merchandise, without the need for a formal complaint from a private party or right holder. 24. Each Party shall provide that goods that have been determined to be pirated or counterfeit by the competent authorities 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 authorized to permit the exportation of counterfeit or pirated goods, nor shall they be authorized to permit such goods to be subject to other customs procedures, except in exceptional circumstances. 25. Where an application fee or merchandise storage fee is assessed, each Party shall provide that such fee shall not be set at an amount that unreasonably deters recourse to these procedures. Criminal Procedures and Remedies 26. Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. Willful copyright or related rights piracy on a commercial scale includes (i) significant willful infringements of copyright or related rights that have no direct or indirect motivation of financial gain, as well as (ii) willful infringement for purposes of commercial advantage or private financial gain. Willful importation or exportation of counterfeit or pirated goods shall be treated as unlawful activities subject to criminal penalties to the same extent as the trafficking or distribution of such goods in domestic commerce. 27. Specifically, each Party shall provide:
28. Each Party shall also provide for criminal procedures and penalties to be applied in the following cases, even absent willful trademark counterfeiting or copyright piracy:
Limitations on Liability for Service Providers 29. For the purpose of providing enforcement procedures that permit effective action against any act of infringement of copyright covered under this Chapter, including expeditious remedies to prevent infringements and criminal and civil remedies, each Party shall provide, consistent with the framework set forth in this Article:
ARTICLE 14.11: TRANSITIONAL PROVISIONS 1. Except as provided in paragraph 2, each Party shall implement the obligations of this Chapter as of the date of entry into force of this Agreement. 2. Each Party shall ratify or accede to the agreements listed in paragraph 2(b) and (d) of Article 1 within one year of the date of entry into force of this Agreement. CHAPTER FIFTEEN
ARTICLE 15.1: STATEMENT OF SHARED COMMITMENT 1. The Parties reaffirm their obligations as members of the International Labor 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 labor principles and the internationally recognized labor rights set forth in Article 15.7 are recognized and protected by its law. 2. Recognizing the right of each Party to establish its own domestic labor standards, and to adopt or modify accordingly its labor laws, each Party shall strive to ensure that its laws provide for labor standards consistent with the internationally recognized labor rights set forth in Article 15.7 and shall strive to improve those standards in that light. ARTICLE 15.2: APPLICATION AND ENFORCEMENT OF LABOR LAWS 1.
2. Each Party recognizes that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in domestic labor 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 recognized labor rights referred to in Article 15.7 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 15.3: PROCEDURAL GUARANTEES AND PUBLIC AWARENESS 1. Each Party shall ensure that persons with a recognized interest under its law in a particular matter have appropriate access to tribunals for the enforcement of the Party’s labor laws. Such tribunals may include administrative, quasi-judicial, judicial, or labor tribunals. 2. Each Party shall ensure that proceedings before such tribunals for the enforcement of its labor laws are fair, equitable, and transparent and, to this end, each Party shall provide that:
3. Each Party shall provide that final decisions on the merits of the case in such proceedings are:
4. Each Party shall provide, as appropriate, that parties to such proceedings have the right to seek review and, where warranted, correction of final decisions issued in such proceedings. 5. Each Party shall ensure that tribunals that conduct or review such proceedings are impartial and independent and do not have any substantial interest in the outcome of the matter. 6. Each Party shall provide that the parties to such proceedings may seek remedies to ensure the enforcement of their rights under its labor laws. Such remedies may include, as appropriate, orders, compliance agreements, fines, penalties, imprisonment, injunctions, or emergency workplace closures. 7. Each Party shall promote public awareness of its labor laws, including by:
ARTICLE 15.4: INSTITUTIONAL ARRANGEMENTS 1. The Joint Committee established under Chapter Eighteen (Administration of the Agreement) shall consider issues and review activities related to the operation of this Chapter, including the Labor Cooperation Mechanism established under Article 15.5, and the pursuit of the labor objectives of this Agreement. The Joint Committee may establish a Subcommittee on Labor Affairs comprising officials of the labor ministry and other appropriate agencies or ministries of each Party. The Subcommittee shall meet at such times as it deems appropriate to discuss matters related to the operation of this Chapter, and each meeting shall include a public session, unless the Parties agree otherwise. 2. Each Party shall designate an office within its labor ministry that shall serve as a contact point with the other Party and with the public for purposes of implementing this Chapter. Each Party’s contact point shall provide for the submission, receipt, and consideration of public communications on matters related to this Chapter and shall make such communications available to the other Party and, as appropriate, to the public. Each Party shall review such communications, as appropriate, in accordance with domestic procedures. 3. Each Party may convene a national labor advisory committee comprising members of its public, including representatives of its labor and business organizations and other persons, to advise it on the implementation of this Chapter. 4. Each formal decision of the Parties concerning the implementation of this Chapter shall be made public, unless the Parties agree otherwise. 5. The Parties, when they consider it appropriate, shall jointly prepare reports on matters related to the implementation of this Chapter and shall make such reports public. ARTICLE 15.5: LABOR COOPERATION Recognizing that cooperation provides enhanced opportunities to promote respect for core labor standards embodied in the ILO Declaration and compliance with ILO Convention No. 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (1999) (“ILO Convention 182”), and to further advance other common commitments regarding labor matters, the Parties hereby establish a Labor Cooperation Mechanism, as set out in Annex 15-A. ARTICLE 15.6: LABOR CONSULTATIONS 1. A Party may request consultations with the other Party regarding any matter arising under this Chapter by delivering a written request to the other Party’s contact point. 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 paragraph 2 of Article 15.4. 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 Labor Affairs be convened. The Subcommittee shall convene within 30 days after a Party delivers a request to convene the Subcommittee to the other Party’s contact point designated pursuant to paragraph 2 of Article 15.4, 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 endeavor to resolve the matter expeditiously, including, where appropriate, by consulting governmental or non-governmental 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 paragraph 1(a) of Article 15.2, the Party may request consultations under paragraph 1 or pursuant to Article 19.5 (Consultations).
5. Neither Party may have recourse to dispute settlement under this Agreement for any matter arising under any provision of this Chapter other than paragraph 1(a) of Article 15.2. ARTICLE 15.7: DEFINITIONS For purposes of this Chapter: labor laws means a Party’s statutes or regulations,1 or provisions thereof, that are directly related to the following internationally recognized labor rights:
CHAPTER SIXTEEN ARTICLE 16.1: LEVELS OF PROTECTION Recognizing the right of each Party to establish its own levels of domestic environmental protection and environmental development priorities, and to adopt or modify accordingly its environmental laws and policies, each Party shall ensure that those laws and policies provide for and encourage high levels of environmental protection and shall strive to continue to improve those laws and policies. ARTICLE 16.2: APPLICATION AND ENFORCEMENT OF ENVIRONMENTAL LAWS 1.
2. Each Party recognizes that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in domestic 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 16.3: PROCEDURAL MATTERS 1. Each Party shall ensure that judicial, quasi-judicial, or administrative proceedings are available under its law to sanction or remedy violations of its environmental laws.
2. Each Party shall ensure that interested persons may request the Party’s competent authorities to investigate alleged violations of its environmental laws and that the competent authorities give such requests due consideration in accordance with its law. 3. Each Party shall ensure that persons with a legally recognized interest under its law in a particular matter have appropriate access to the proceedings referred to in paragraph 1. 4. Each Party shall provide appropriate and effective access to remedies, in accordance with its law, which may include rights such as:
ARTICLE 16.4: VOLUNTARY MECHANISMS TO ENHANCE ENVIRONMENTAL PERFORMANCE 1. The Parties recognize that incentives and other flexible and voluntary mechanisms can contribute to the achievement and maintenance of high levels of environmental protection, complementing the procedures set forth in Article 16.3. As appropriate and in accordance with its law, each Party shall encourage the development of such incentives and voluntary mechanisms, which may include:
2. As appropriate, and in accordance with its law, each Party shall encourage:
ARTICLE 16.5: INSTITUTIONAL ARRANGEMENTS 1. In addition to discussions of matters related to the operation of this Chapter that may take place in the Joint Committee established under Chapter Eighteen (Administration of the Agreement ), the Joint Committee shall, at the request of either Party, establish a Subcommittee on Environmental Affairs comprising government officials to discuss matters related to the operation of this Chapter. Meetings of the Subcommittee shall include, unless the Parties agree otherwise, a session where members of the Subcommittee have an opportunity to meet with the public to discuss matters related to the operation of this Chapter. 2. The Parties, when they consider appropriate, shall jointly prepare reports on matters related to the implementation of this Chapter, and shall make such reports public, except as otherwise provided in this Agreement. 3. Any formal decision of the Parties concerning the implementation of this Chapter shall be made public, unless the Parties agree otherwise. ARTICLE 16.6: OPPORTUNITIES FOR PUBLIC PARTICIPATION 1. Recognizing that opportunities for public participation can facilitate the sharing of best practices and the development of innovative approaches to issues of interest to the public, each Party shall develop or maintain procedures for dialogue with its public concerning the implementation of this Chapter, including opportunities for its public to:
2. Each Party may convene, or consult with an existing, national advisory committee comprising representatives of both its environmental and business organizations and other members of its public, to advise it on the implementation of this Chapter, as appropriate. 3. Each Party shall make best efforts to respond favorably to requests for discussions by persons in its territory regarding its implementation of this Chapter. 4. Each Party shall take into account, as appropriate, public comments and recommendations it receives regarding cooperative environmental activities the Parties undertake pursuant to the Memorandum of Understanding on Environmental Cooperation between The Government of the United States of America and the Government of the Kingdom of Bahrain described in Article 16.7. ARTICLE 16.7: ENVIRONMENTAL COOPERATION 1. The Parties recognize the importance of strengthening capacity to protect the environment and to promote sustainable development in concert with strengthening bilateral trade and investment relations. The Parties are committed to undertaking cooperative environmental activities pursuant to a United States–Bahrain Memorandum of Understanding on Environmental Cooperation developed by the Parties, and in other fora. 2. Each Party shall also seek opportunities for its citizens to participate in the development and implementation of cooperative environmental activities, such as through the use of public-private partnerships. 3. The Parties also recognize the ongoing importance of current and future environmental cooperation that may be undertaken outside this Agreement. 4. Each Party shall, as it deems appropriate, share information with the other Party and the public regarding its experience in assessing and taking into account the positive and negative environmental effects of trade agreements and policies. ARTICLE 16.8: ENVIRONMENTAL CONSULTATIONS 1. A Party may request consultations with the other Party regarding any matter arising under this Chapter by delivering a written request to the contact point designated by the other Party for this purpose. Unless the Parties agree otherwise, consultations shall commence within 30 days after a Party delivers a request. 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 to consider the matter. The Subcommittee shall convene within 30 days after a Party delivers a written request to the other Party’s contact point designated pursuant to paragraph 1, 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 endeavor to resolve the matter expeditiously, including, where appropriate, by consulting governmental or non-governmental 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 paragraph 1(a) of Article 16.2, the Party may request consultations under paragraph 1 or pursuant to Article 19.5 (Consultations).
5. Neither Party may have recourse to dispute settlement under this Agreement for any matter arising under any provision of this Chapter other than paragraph 1(a) of Article 16.2. ARTICLE 16.9: RELATIONSHIP TO ENVIRONMENTAL AGREEMENTS 1. The Parties recognize that the 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. 2. Accordingly, the Parties shall continue to seek means to enhance the mutual supportiveness of the multilateral environmental agreements to which they are both party and the 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 16.10: DEFINITIONS For purposes of this Chapter, environmental law means any statute or regulation of a Party,1 or provision thereof, the primary purpose of which is the protection of the environment, or the prevention of a danger to human, animal, or plant life or health, through:
in areas with respect to which a Party exercises sovereignty, sovereign rights, or jurisdiction, but does not include any statue or regulation, or provision thereof, directly related to worker safety or health. CHAPTER SEVENTEEN ARTICLE 17.1: 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:
ARTICLE 17.2: 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 proposed or actual measure, regardless of whether the other Party has been previously notified of that measure. ARTICLE 17.3: ADMINISTRATIVE PROCEEDINGS With a view to administering in a consistent, impartial, and reasonable manner all measures of general application affecting matters covered by this Agreement, each Party shall ensure, in its administrative proceedings applying measures referred to in Article 17.1 to particular persons, goods, or services of the other Party in specific cases, that:
ARTICLE 17.4: REVIEW AND APPEAL 1. Each Party shall establish or maintain judicial, quasi-judicial, or administrative tribunals or procedures for the purpose of the prompt review 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 such tribunals or procedures, the parties to the proceeding are provided with the right to:
3. Each Party shall ensure, subject to appeal or further review as provided in its law, that such decisions shall be implemented by, and shall govern the practice of, the office or authority with respect to the administrative action at issue. ARTICLE 17.5: ANTI-CORRUPTION 1. The Parties reaffirm their resolve to eliminate bribery and corruption in international trade and investment. 2. Each Party shall adopt or maintain the necessary legislative or other measures to establish that it is a criminal offense under its law, in matters affecting international trade or investment, for:
3. Each Party shall adopt or maintain appropriate penalties and procedures to enforce the criminal measures that it adopts or maintains in conformity with paragraph 2. 4. Each Party shall adopt or maintain appropriate measures to protect persons who, in good faith, report acts of bribery described in paragraph 2. 5. The Parties recognize the importance of regional and multilateral initiatives to eliminate bribery and corruption in international trade and investment. The Parties shall work jointly to encourage and support appropriate initiatives in relevant international fora. ARTICLE 17.6: DEFINITIONS For purposes of this Chapter: act or refrain from acting in relation to the performance of official duties includes any use of the official’s position, whether or not within the official’s authorized competence; 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:
foreign official means any person holding a legislative, administrative, or judicial office of a foreign country, at any level of government, whether appointed or elected; any person exercising a public function for a foreign country at any level of government, including for a public agency or public enterprise; and any official or agent of a public international organization; public function means any temporary or permanent, paid or honorary activity, performed by a natural person in the name of a Party or in the service of a Party, such as procurement, at the central level of government; and public official means any official or employee of a Party at the central level of government, whether appointed or elected.
CHAPTER EIGHTEEN ARTICLE 18.1: 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 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 other Party. ARTICLE 18.2: 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.
2. The Joint Committee shall:
3. The Joint Committee may establish its own rules of procedure. 4. Unless the Parties agree otherwise, the Joint Committee shall convene
5. The Parties recognize the importance of transparency and openness in implementing this Agreement, including considering the views of interested parties and other members of the public. 6. Each Party shall treat any confidential information exchanged in relation to a meeting of the Joint Committee on the same basis as the Party providing the information. CHAPTER NINETEEN ARTICLE 19.1: COOPERATION The Parties shall endeavor to agree on the interpretation and application of this Agreement, and shall make every attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect its operation. ARTICLE 19.2: SCOPE OF APPLICATION Except as otherwise provided in this Agreement or as the Parties agree otherwise, this Chapter 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:
ARTICLE 19.3: ADMINISTRATION OF DISPUTE SETTLEMENT PROCEEDINGS Each Party shall designate an office that shall be responsible for providing administrative assistance to panels established under Article 19.7. Each Party shall be responsible for the operation and costs of its designated office and shall notify the other Party of its location. ARTICLE 19.4: CHOICE OF FORUM 1. Where a dispute regarding any matter arises under this Agreement and under the WTO Agreement, or any other agreement to which both Parties are party, the complaining Party may select the forum in which to settle the dispute. 2. The complaining Party shall notify the other Party in writing of its intention to bring a dispute to a particular forum before doing so. 3. Once the complaining Party has selected a particular forum, the forum selected shall be used to the exclusion of other possible fora. 4. For the purposes of this paragraph, a Party shall be deemed to have selected a forum when it has requested the establishment of, or referred a matter to, a dispute settlement panel. ARTICLE 19.5: CONSULTATIONS 1. Either Party may request consultations with the other Party with respect to any matter described in Article 19.2 by delivering written notification to the other Party. If a Party requests consultations, the other Party shall reply promptly to the request for consultations and enter into consultations in good faith. 2. Each Party shall:
3. Promptly after requesting or receiving a request for consultations pursuant to this Article, each Party shall seek the views of interested parties and other members of the public on the matter in order to draw on a broad range of perspectives. ARTICLE 19.6: REFERRAL TO THE JOINT COMMITTEE If the consultations fail to resolve a matter within 60 days of the delivery of a Party’s request for consultations under Article 19.5, 20 days where the matter concerns perishable goods, or such other period as the Parties may agree, either Party may refer the matter to the Joint Committee by delivering written notification to the other Party. The Joint Committee shall endeavor to resolve the matter. ARTICLE 19.7: ESTABLISHMENT OF PANEL 1. If the Joint Committee has not resolved a matter within 60 days after delivery of the notification described in Article 19.6, 30 days where the matter concerns perishable goods, or 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. 2. Neither Party may refer a matter concerning a proposed measure to a dispute settlement panel. 3. Unless the Parties agree otherwise:
4. The panelists chosen pursuant to paragraph 3 shall:
In addition, in disputes related to a Party’s implementation of Chapter Fifteen (Labor), Chapter Sixteen (Environment), and such other chapters as the Parties may agree, panelists shall have expertise or experience relevant to the subject matter that is under dispute. 5. Panel hearings shall be held at a location determined in accordance with the model rules of procedure. ARTICLE 19.8: 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:
2. Unless the Parties agree otherwise, 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 19.9: 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 as to whether:
as well as any other determination requested by the Parties with regard to the dispute. 2. The panel 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 agree otherwise. The Parties shall release the final report to the public within 15 days thereafter, subject to the protection of confidential information. ARTICLE 19.10: 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 19.2(c), the resolution, whenever possible, shall be to eliminate the non-conformity or the nullification or impairment. ARTICLE 19.11: NON-IMPLEMENTATION 1. If a panel has made a determination of the type described in Article 19.10.2, and the Parties are unable to reach agreement on a resolution pursuant to Article 19.10.1 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:
the complaining Party may at any time thereafter provide written notice to the other Party 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 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:
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 other Party. The panel shall reconvene as soon as possible after delivery of the request and shall present its determination to the Parties within 90 days after it reconvenes to review a request under subparagraph (a) or (b), or within 120 days for a request under 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 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 Bahraini currency, in equal, quarterly installments 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 19.12.1. ARTICLE 19.12: 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 15.2.1(a) (Application and Enforcement of Labor Laws) or Article 16.2.1(a) (Application and Enforcement of Environmental Laws), and the Parties:
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 other Party. The panel shall reconvene as soon as possible after delivery of the request. 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:
The amount of the assessment shall not exceed 15 million U.S. dollars annually, adjusted for inflation as specified in Annex19-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 Party complained against demanding payment of the monetary assessment. The monetary assessment shall be payable in U.S. currency, or in an equivalent amount of Bahraini currency, in equal, quarterly installments beginning 60 days after the complaining Party provides such notice. 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 labor or environmental initiatives, including efforts to improve or enhance labor 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 19.13: COMPLIANCE REVIEW 1. Without prejudice to the procedures set out in Article 19.11.3, 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 other Party. 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 19.11 or 19.12 and the Party complained against shall no longer be required to pay any monetary assessment it has agreed to pay under Article 19.11.5 or that has been imposed on it under Article 19.12. ARTICLE 19.14: FIVE-YEAR REVIEW The Joint Committee shall review the operation and effectiveness of Articles 19.11 and 19.12 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 19.15: PRIVATE RIGHTS Neither Party may provide for a right of action under its law against the other Party on the ground that a measure of the other Party is inconsistent with this Agreement. ANNEX 19-A 1. An annual monetary assessment imposed before December 31, 2005, shall not exceed 15 million U.S. dollars. 2. Beginning January 1, 2006, the 15 million U.S. dollars annual cap shall be adjusted for inflation in accordance with paragraphs 3 through 5. 3. The period used for the accumulated inflation adjustment shall be calendar year 2004 through the most recent calendar year preceding the one in which the assessment is owed. 4. The relevant inflation rate shall be the U.S. inflation rate as measured by the Producer Price Index for Finished Goods published by the U.S. Bureau of Labor Statistics. 5. The inflation adjustment shall be estimated according to the following formula:
CHAPTER TWENTY ARTICLE 20.1: GENERAL EXCEPTIONS 1. For purposes of Chapters Two through Seven (National Treatment and Market Access for Goods, Textiles and Apparel, Rules of Origin, Customs Administration, Sanitary and Phytosanitary Measures, and Technical Barriers to Trade), Article XX of GATT 1994 and its interpretive notes are incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XX(b) of GATT 1994 include environmental measures necessary to protect human, animal, or plant life or health, and that Article XX(g) of GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources. 2. For purposes of Chapters Ten, Twelve, and Thirteen1 (Cross-Border Trade in Services, Telecommunications, and Electronic Commerce), Article XIV of GATS (including its footnotes) is incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XIV(b) of GATS include environmental measures necessary to protect human, animal, or plant life or health. ARTICLE 20.2: ESSENTIAL SECURITY Nothing in this Agreement shall be construed:
ARTICLE 20.3: TAXATION 1. Except as set out in this Article, nothing in this Agreement shall apply to taxation measures. 2. 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. 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:
4. Subject to paragraph 2:
except that nothing in those Articles shall apply:
ARTICLE 20.4: DISCLOSURE OF INFORMATION Nothing in this Agreement shall be construed to require a Party to furnish or allow access to information the disclosure of which would impede law enforcement or would be contrary to the Party’s law protecting personal privacy or the financial affairs and accounts of individual customers of financial institutions. CHAPTER TWENTY-ONE ARTICLE 21.1: ANNEXES The Annexes to this Agreement constitute an integral part of this Agreement. ARTICLE 21.2: AMENDMENTS The Parties may agree, in writing, to amend this Agreement. An amendment shall enter into force after the Parties complete any necessary approval procedures, on such date as the Parties may agree. ARTICLE 21.3: AMENDMENT OF THE WTO AGREEMENT If any provision of the WTO Agreement that the Parties have incorporated into this Agreement is amended, the Parties shall consult to consider amending the relevant provision of this Agreement, as appropriate, in accordance with Article 21.2. ARTICLE 21.4: EXPANSION OF THE FREE TRADE AREA 1. Any country or group of countries may agree to become a Party 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 requirements and procedures of each country. 2. This Agreement shall not apply as between any Party and any country or group of countries if, at the time of the agreement described in paragraph 1, one of them does not consent to such application. ARTICLE 21.5: 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 their respective applicable legal requirements and procedures or such other date as the Parties may agree. 2. Either Party may terminate this Agreement on 180-days written notice to the other Party. IN WITNESS WHEREOF , the undersigned, being duly authorized by their respective Governments, have signed this Agreement in duplicate, in the English and Arabic languages, each text being equally authentic.
[ Index > Chapters > 1-9 > 10-21 ]
____________________________________________________________________ CHAPTER TEN 1 This clause does not cover measures of a Party that limit inputs for the supply of services. 2 The Parties understand that “regulations” includes regulations establishing or applying to licensing authorization or criteria. 3 The Parties understand that for the purposes of Articles 10.2 and 10.3, “service suppliers” has the same meaning as “services and service suppliers” as used in Articles II and XVII of GATS. 4 For greater certainty, for the United States, “express delivery services” do not include delivery of letters subject to the Private Express Statutes (18 U.S.C. 1693 et seq., 39 U.S.C. 601 et seq.), but do include delivery of letters subject to the exceptions to, or suspensions promulgated under, those statutes, which permit private delivery of extremely urgent letters. CHAPTER ELEVEN 1 This clause does not cover measures of a Party that limit inputs for the supply of financial services. 2 The Parties understand that nothing in Article 11.6 prevents a financial institution of a Party from applying to the other Party to consider authorizing the supply of a financial service that is supplied in neither Party’s territory. Such application shall be subject to the law of the Party to which the application is made and, for greater certainty, shall not be subject to the obligations of Article 11.6. 3 For greater certainty, Article 11.5 does not apply to an amendment to any non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed on the date of entry into force of the Agreement, with Article 11.5. 4 It is understood that the term “prudential reasons” includes the maintenance of the safety, soundness, integrity, or financial responsibility of individual financial institutions or cross-border financial service suppliers. CHAPTER TWELVE 1 For greater certainty, this subparagraph does not prohibit either Party from requiring a service supplier to obtain a license to supply telecommunications services to third parties. 2 This Article is subject to Annex 12-A. 3 This paragraph applies to Bahrain upon a determination by its telecommunications regulatory body that sufficient consumer demand exists for number portability. 4 Bahrain may exempt commercial mobile services from its obligations under this paragraph. 5 This Article is subject to Annex 12-B. 6 For purposes of subparagraph (a), wholesale rates set pursuant to a Party’s law and regulations shall be considered reasonable. 7 Where provided in its law or regulations, a Party may prohibit a reseller that obtains, at wholesale rates, a public telecommunications service available at retail to only a limited category of subscribers from offering the service to a different category of subscribers. 8 With respect to Bahrain’s obligations under paragraph 1, “rights of way” means right of use as provided under Chapter 13 of the Telecommunications Law of Bahrain. 9 The United States may comply with this obligation by providing for review by a state regulatory authority. 10 In Bahrain, public telecommunications services do not include services provided pursuant to a VSAT license, a paging license, a public access mobile radio services license, a value-added services license, an internet exchange license, or an internet service provider license. 11 In the United States, this body may be a state regulatory authority. CHAPTER 13 1 For greater certainty, Article 13.3 does not preclude a Party from imposing internal taxes or other internal charges on digital products, provided that these are imposed in a manner consistent with this Agreement. 2 For greater certainty, digital products do not include digitized representations of financial instruments. CHAPTER 14 1 For purposes of Articles 14.1.5, 14.1.6, 14.2.12, and ,14.6.1 a national of a Party shall also mean, in respect of the relevant right, an entity located in such Party that would meet the criteria for eligibility for protection provided for in the agreements listed in Article 14.1.2 and the TRIPS Agreement. 2 For purposes of this paragraph, “protection” shall include matters affecting the availability, acquisition, scope, maintenance and enforcement of intellectual property rights as well as matters affecting the use of intellectual property rights specifically covered by this Chapter. Further for purposes of this paragraph, “protection” shall also include the prohibition on circumvention of effective technological measures pursuant to Article 14.4.7 and the provisions concerning rights management information pursuant to Article 14.4.8. 3 For greater certainty, a Party may satisfy the requirement for publication by making it available to the public on the Internet 4 Geographical indications means indications that identify 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. Any sign or combination of signs (such as words - including geographical and personal names, as well as letters, numerals, figurative elements and colors, including single colors), in any form whatsoever, shall be eligible to be a geographical indication. 5 In determining whether a trademark is well known, the reputation of the trademark need not extend beyond the sector of the public that normally deals with the relevant goods or services. 6 References to “authors, performers, and producers of phonograms” refer also to any successors in interest. 7 With respect to copyrights and related rights in this Chapter, a right to authorize or prohibit or a right to authorize shall be construed to mean an exclusive right. 8 With respect to copyright and related rights in this Chapter, a “performance” refers to a performance fixed in a phonogram, unless otherwise specified. 9 For purposes of this Article, fixation includes the finalization of the master tape or its equivalent. 10 For purposes of this Article, the term "inventive step" will be treated as synonymous with the term "non-obvious.” 11 The requirement for publication may be satisfied by making it available to the public on the Internet. 12 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. 13 For the purposes of this paragraphs 20-25: (a) counterfeit trademark goods means any goods, including packaging, bearing without authorization 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; (b) pirated copyright goods means any goods that are copies made without the consent of the right holder or person duly authorized 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. 14 For purposes of this article, “copyright” shall also include related rights. 15 It is understood that this subparagraph is without prejudice to the availability of defenses to copyright infringement that are of general applicability. 16 Either Party may request consultations with the other Party to consider how to address future functions of a similar nature under this paragraph. CHAPTER FIFTEEN 1 For the United States, statutes or regulations means acts of Congress or regulations promulgated pursuant to an act of Congress that are enforceable by action of the federal government. CHAPTER SIXTEEN 1 For the United States, a 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 1 This Article is without prejudice to whether digital products should be classified as goods or services. |
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