The Trans-Pacific Partnership A Side-By-Side Comparison with: Comparison Vol. 19 The United States - Colombia Trade Promotion Agreement of 2012 The United States - Korea Free Trade Agreement of 2012 The United States - Peru Free Trade Agreement of 2009 TPP Chapter 16 - Competition
Chapter 16 Competition Policy Chapter 13 Competition Policy, Designated Chapter 16 Competition Related Matters Chapter 13 Competition Policy, Designated Monopolies, and State Enterprises Monopolies, and State Enterprises Article 13.1: Objectives Recognizing that the conduct subject to this Chapter has the potential to restrict bilateral trade and investment, the Parties believe that proscribing such conduct, implementing economically sound competition policies, and cooperating on matters covered by this Chapter will help secure the benefits of this Agreement. Article 13.1: Objectives Recognizing that the conduct subject to this Chapter has the potential to restrict bilateral trade and investment, the Parties believe that proscribing such conduct, implementing economically sound competition policies, and cooperating on matters covered by this Chapter will help secure the benefits of this Agreement. Article 16.1: Competition Law and Authorities and Anticompetitive Business Conduct1 Article 13.2: Competition Law and Anticompetitive Business Conduct Article 16.1: Competition Law and Anticompetitive Business Conduct Article 13.2: Competition Law and Anticompetitive Business Conduct Footnote 1 This Article is subject to Annex 16 A (Application of Article 16.2, Article 16.3 and Article 16.4 to Brunei Darussalam). 1. Each Party shall adopt or maintain national 1. Each Party shall adopt or maintain national competition laws that proscribe anticompetitive competition laws that proscribe anticompetitive business conduct, with the objective of promoting business conduct and promote economic economic efficiency and consumer welfare, and efficiency and consumer welfare, and shall take shall take appropriate action with respect to that appropriate action with respect to such conduct. conduct. These laws should take into account the APEC Principles to Enhance Competition and Regulatory Reform done at Auckland, September 13, 1999. 1. Each Party shall maintain or adopt competition laws that promote and protect the competitive process in its market by proscribing anticompetitive business conduct. Each Party shall take appropriate action with respect to anticompetitive business conduct with the objective of promoting economic efficiency and consumer welfare. 1. Each Party shall adopt or maintain national competition laws that proscribe anticompetitive business conduct and promote economic efficiency and consumer welfare, and shall take appropriate action with respect to such conduct. 2. Each Party shall endeavour to apply its national competition laws to all commercial activities in its territory.2 However, each Party may provide for certain exemptions from the application of its national competition laws provided that those exemptions are transparent and are based on public policy grounds or public interest grounds. Footnote 2 For greater certainty, nothing in paragraph 2 shall be construed to preclude a Party from applying its competition laws to commercial activities outside its borders that have anticompetitive effects within its jurisdiction. Prepared by the Law Offices of Stewart and Stewart Page 1 of 16
3. Each Party shall maintain an authority or 2. Each Party shall maintain an authority 2. Each Party shall maintain an authority or 2. Each Party shall maintain an authority authorities responsible for the enforcement of its responsible for the enforcement of its national authorities responsible for the enforcement of its responsible for the enforcement of its national national competition laws (national competition competition laws. The enforcement policy of national competition laws. The enforcement competition laws. The enforcement policy of authorities). Each Party shall provide that it is the each Party s central government competition policy of each Party s authorities responsible for each Party s central government competition enforcement policy of that authority or authorities to act in accordance with the objectives set out in paragraph 1 and not to discriminate on the basis of nationality. authorities is not to discriminate on the basis of the nationality of the subjects of their proceedings. the enforcement of such laws is to treat persons who are not persons of the Party no less favorably than persons of the Party in like circumstances, and each Party s authorities intend to maintain this policy. authorities is not to discriminate on the basis of the nationality of the subjects of their proceedings. Article 16.2: Procedural Fairness in Competition Law Enforcement3 Footnote 3 This Article is subject to Annex 16 A (Application of Article 16.2, Article 16.3 and Article 16.4 to Brunei Darussalam). 1. Each Party shall ensure that before it imposes a sanction or remedy against a person for violating its national competition laws, it affords that person: (a) information about the national competition authority s competition concerns; (b) a reasonable opportunity to be represented by counsel; and (c) a reasonable opportunity to be heard and present evidence in its defence, except that a Party may provide for the person to be heard and present evidence within a reasonable time after it imposes an interim sanction or remedy. In particular, each Party shall afford that person a reasonable opportunity to present evidence or testimony in its defence, including: if applicable, to offer the analysis of a properly qualified expert, to cross examine any testifying witness; and to review and rebut the evidence introduced in the enforcement proceeding4. 3. Each Party shall ensure that: (a) before it imposes a sanction or remedy against any person for violating its competition law, it affords the person the right to be heard and to present evidence, except that it may provide for the person to be heard and present evidence within a reasonable time after it imposes an interim sanction or remedy; and 3. Each Party shall ensure that a respondent in an administrative hearing convened to determine whether conduct violates its competition laws or what administrative sanctions or remedies should be ordered for violation of such laws is afforded the opportunity to present evidence in its defense and to be heard in the hearing. In particular, each Party shall ensure that the respondent has a reasonable opportunity to cross examine any witnesses or other persons who testify in the hearing and to review and rebut the evidence and any other collected information on which the determination may be based. 3. Each Party shall ensure that: (a) before it imposes a sanction or remedy against any person for violating its competition law, it affords the person the right to be heard and to present evidence, except that it may provide for the person to be heard and present evidence within a reasonable time after it imposes an interim sanction or remedy; and Footnote 4 For the purposes of this Article, enforcement proceedings means judicial or administrative proceedings following an investigation into the alleged violation of the competition laws. Prepared by the Law Offices of Stewart and Stewart Page 2 of 16
2. Each Party shall adopt or maintain written procedures pursuant to which its national competition law investigations are conducted. If these investigations are not subject to definitive deadlines, each Party s national competition authorities shall endeavour to conduct their investigations within a reasonable time frame. 3. Each Party shall adopt or maintain rules of procedure and evidence that apply to enforcement proceedings concerning alleged violations of its national competition laws and the determination of sanctions and remedies thereunder. These rules shall include procedures for introducing evidence, including expert evidence if applicable, and shall apply equally to all parties to a proceeding. 6. Each Party shall publish rules of procedure for administrative hearings convened to determine whether conduct violates its competition laws or what administrative sanctions or remedies should be ordered for violation of such laws. These rules shall include procedures for introducing evidence in such proceedings, which shall apply equally to all parties to the proceeding. 4. Each Party shall provide a person that is subject to the imposition of a sanction or remedy for violation of its national competition laws with the opportunity to seek review of the sanction or remedy, including review of alleged substantive or procedural errors, in a court or other independent tribunal established under that Party s laws. (b) a court or other independent tribunal established under that Party s laws imposes or, at the person s request, reviews any such sanction or remedy. 4. Each Party shall provide persons subject to the imposition of a sanction or remedy for violation of its competition laws with the opportunity to seek review of the sanction or remedy in a court of that Party. (b) a court or other independent tribunal established under that Party s laws imposes or, at the person s request, reviews any such sanction or remedy. 5. Each Party shall authorise its national competition authorities to resolve alleged violations voluntarily by consent of the authority and the person subject to the enforcement action. A Party may provide for such voluntary resolution to be subject to judicial or independent tribunal approval or a public comment period before becoming final. 6. If a Party s national competition authority issues a public notice that reveals the existence of a pending or ongoing investigation, that authority shall avoid implying in that notice that the person referred to in that notice has engaged in the alleged conduct or violated the Party s national competition laws. Prepared by the Law Offices of Stewart and Stewart Page 3 of 16
7. If a Party s national competition authority alleges a violation of its national competition laws, that authority shall be responsible for establishing the legal and factual basis for the alleged violation in an enforcement proceeding.competition laws, that authority shall be responsible for establishing the legal and factual basis for the alleged violation in an enforcement proceeding.competition laws, that authority shall be responsible for establishing the legal and factual basis for the alleged violation in an enforcement proceeding.5 Footnote 5 Nothing in paragraph 7 shall prevent a Party from requiring that a person against whom such an allegation is made be responsible for establishing certain elements in defence of the allegation. 8. Each Party shall provide for the protection of business confidential information, and other information treated as confidential under its law, obtained by its national competition authorities during the investigative process. If a Party s national competition authority uses or intends to use that information in an enforcement proceeding, the Party shall, if it is permissible under its law and as appropriate, provide a procedure to allow the person under investigation timely access to information that is necessary to prepare an adequate defence to the national competition authority s allegations. 9. Each Party shall ensure that its national competition authorities afford a person under investigation for possible violation of the national competition laws of that Party reasonable opportunity to consult with those competition authorities with respect to significant legal, factual or procedural issues that arise during the investigation. Prepared by the Law Offices of Stewart and Stewart Page 4 of 16
5. Each Party shall provide its authorities responsible for the enforcement of its national competition laws with the authority to resolve their administrative or civil enforcement actions by mutual agreement with the subject of the enforcement action. A Party may provide for such agreements to be subject to judicial approval. 4. Each Party other than the United States may implement its obligations under this Article through Andean Community competition laws or an Andean Community enforcement authority. 4. Each Party other than the United States may implement its obligations under this Article through Andean Community competition laws or an Andean Community enforcement authority. Article 16.3: Private Rights of Action6 Footnote 6 This Article is subject to Annex 16 A (Application of Article 16.2, Article 16.3 and Article 16.4 to Brunei Darussalam). 1. For the purposes of this Article, private right of action means the right of a person to seek redress, including injunctive, monetary or other remedies, from a court or other independent tribunal for injury to that person s business or property caused by a violation of national competition laws, either independently or following a finding of violation by a national competition authority. 2. Recognising that a private right of action is an important supplement to the public enforcement of national competition laws, each Party should adopt or maintain laws or other measures that provide an independent private right of action. 3. If a Party does not adopt or maintain laws or other measures that provide an independent private right of action, the Party shall adopt or maintain laws or other measures that provide a right that allows a person: (a) to request that the national competition authority initiate an investigation into an alleged violation of national competition laws; and Prepared by the Law Offices of Stewart and Stewart Page 5 of 16
(b) to seek redress from a court or other independent tribunal following a finding of violation by the national competition authority. 4. Each Party shall ensure that a right provided pursuant to paragraph 2 or 3 is available to persons of another Party on terms that are no less favourable than those available to its own persons. 5. A Party may establish reasonable criteria for the exercise of any rights it creates or maintains in accordance with this Article. Article 16.4: Cooperation Article 13.3: Cooperation Article 13.3: Cooperation 1. The Parties recognise the importance of cooperation and coordination between their respective national competition authorities to foster effective competition law enforcement in the free trade area. Accordingly, each Party shall: (a) cooperate in the area of competition policy by exchanging information on the development of competition policy; and (b) cooperate, as appropriate, on issues of competition law enforcement, including through notification, consultation and the exchange of information. 2. A Party s national competition authorities may consider entering into a cooperation arrangement or agreement with the competition authorities of another Party that sets out mutually agreed terms of cooperation. 3. The Parties agree to cooperate in a manner compatible with their respective laws, regulations and important interests, and within their reasonably available resources. 1. The Parties agree to cooperate in the area of 7. The Parties recognize the importance of competition policy. The Parties recognize the cooperation and coordination between their importance of cooperation and coordination respective authorities to promote effective between their respective authorities to further competition law enforcement. effective competition law enforcement in the free trade area. 2. Accordingly, the Parties shall cooperate on issues of competition law enforcement, including notification of cases that affect the important interests of another Party, consultation, and exchange of information relating to the enforcement of each Party s competition laws and policies. Accordingly, the Parties shall cooperate in relation to their enforcement policies and in the enforcement of their respective competition laws, including through mutual assistance, notification, consultation, and exchange of information. 1. The Parties agree to cooperate in the area of competition policy. The Parties recognize the importance of cooperation and coordination between their respective authorities to further effective competition law enforcement in the free trade area. 2. Accordingly, the Parties shall cooperate on issues of competition law enforcement, including notification of cases that affect the important interests of another Party, consultation, and exchange of information relating to the enforcement of each Party s competition laws and policies. Article 13.4: Working Group Article 13.4: Working Group Prepared by the Law Offices of Stewart and Stewart Page 6 of 16
The Parties shall establish a working group comprising representatives of each Party. The working group shall endeavor to promote greater understanding, communication, and cooperation between the Parties with respect to matters covered by this Chapter. The working group shall report on the status of its efforts to the Commission within three years of entry into force of this Agreement and may make any appropriate recommendations for future action that may further promote the achievement of the objectives of this Article. The Parties shall establish a working group comprising representatives of each Party. The working group shall endeavor to promote greater understanding, communication, and cooperation between the Parties with respect to matters covered by this Chapter. The working group shall report on the status of its efforts to the Commission within three years of entry into force of this Agreement and may make any appropriate recommendations for future action that may further promote the achievement of the objectives of this Article. Article 13.5: Designated Monopolies Article 16.2: Designated Monopolies Article 13.5: Designated Monopolies 1. Recognizing that designated monopolies 1. Each Party shall ensure that any privatelyowned 1. Recognizing that designated monopolies should not operate in a manner that creates monopoly that it designates after the date should not operate in a manner that creates obstacles to trade and investment, each Party shall ensure that any privately owned monopoly that it designates after the date of entry into force of this Agreement and any government monopoly that it designates or has designated: this Agreement enters into force and any government monopoly that it designates or has designated: obstacles to trade and investment, each Party shall ensure that any privately owned monopoly that it designates after the date of entry into force of this Agreement and any government monopoly that it designates or has designated: (a) acts in a manner that is not inconsistent with the Party s obligations under this Agreement wherever such a monopoly exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it in connection with the monopoly good or service, such as the power to grant import or export licenses, approve commercial transactions, or impose quotas, fees, or other charges; (a) acts in a manner that is not inconsistent with the Party s obligations under this Agreement wherever such a monopoly exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it in connection with the monopoly good or service, such as the power to grant import or export licenses, approve commercial transactions, or impose quotas, fees, or other charges; (a) acts in a manner that is not inconsistent with the Party s obligations under this Agreement wherever such a monopoly exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it in connection with the monopoly good or service, such as the power to grant import or export licenses, approve commercial transactions, or impose quotas, fees, or other charges; (b) acts solely in accordance with commercial (b) acts solely in accordance with commercial considerations in its purchase or sale of the considerations in its purchase or sale of the monopoly good or service in the relevant market, monopoly good or service in the relevant including with regard to price, quality, availability, market,1 including with regard to price, quality, marketability, transportation, and other terms availability, marketability, transportation, and and conditions of purchase or sale, except to other terms and conditions of purchase or sale, comply with any terms of its designation that are except to comply with any terms of its not inconsistent with subparagraph (c) or (d); designation2 that are not inconsistent with subparagraph (c) or (d);3 (b) acts solely in accordance with commercial considerations in its purchase or sale of the monopoly good or service in the relevant market, including with regard to price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale, except to comply with any terms of its designation that are not inconsistent with subparagraph (c) or (d); Prepared by the Law Offices of Stewart and Stewart Page 7 of 16
Footnote 1 For greater certainty, purchase or sale of the monopoly good or service in the relevant market in Article 16.2 refers to the sale of the designated monopoly good or service in the case of a designated monopoly supplier and to the purchase of the designated monopoly good or service in the case of a designated monopoly buyer. Footnote 2 For greater certainty, nothing in this Chapter shall be construed to prevent a Party from amending the terms of a monopoly s designation. Footnote 3 Subparagraph (b) shall not be construed to prevent a designated monopoly from supplying the monopoly good or service in accordance with specific rates approved, or other terms or conditions established, by a regulatory authority of a Party, provided that those rates or other terms or conditions are not inconsistent with subparagraph (c) or (d). (c) provides non discriminatory treatment to covered investments, to goods of another Party, and to service suppliers of another Party in its purchase or sale of the monopoly good or service in the relevant market; and (d) does not use its monopoly position to engage, either directly or indirectly, including through its dealings with its parent, subsidiaries, or other enterprises with common ownership, in anticompetitive practices in a non monopolized market in its territory that adversely affect covered investments. (c) provides non discriminatory treatment to covered investments, to goods of the other Party, and to service suppliers of the other Party in its purchase or sale of the monopoly good or service in the relevant market; and (d) does not use its monopoly position to engage, either directly or indirectly, including through its dealings with its parent, subsidiaries, or other enterprises with common ownership, in anticompetitive practices in a non monopolized market in its territory that adversely affect covered investments. (c) provides non discriminatory treatment to covered investments, to goods of another Party, and to service suppliers of another Party in its purchase or sale of the monopoly good or service in the relevant market; and (d) does not use its monopoly position to engage, either directly or indirectly, including through its dealings with its parent, subsidiaries, or other enterprises with common ownership, in anticompetitive practices in a non monopolized market in its territory that adversely affect covered investments. 2. Nothing in this Chapter shall be construed to prevent a Party from designating a monopoly. 2. Nothing in this Chapter shall be construed to prevent a Party from designating a monopoly or maintaining a designated monopoly. 2. Nothing in this Chapter shall be construed to prevent a Party from designating a monopoly. 3. This Article does not apply to procurement, as defined in Article 1.3 (Definitions of General Application). 3. This Article does not apply to government procurement. 3. This Article does not apply to procurement, as defined in Article 1.3 (Definitions of General Application). Article 13.6: State Enterprises Article 16.3: State Enterprises Article 13.6: State Enterprises Prepared by the Law Offices of Stewart and Stewart Page 8 of 16
1. The Parties recognize that state enterprises should not operate in a manner that creates obstacles to trade and investment. In that light, each Party shall ensure that any state enterprise that it establishes or maintains: 1. Each Party shall ensure that any state enterprise that it establishes or maintains: 1. The Parties recognize that state enterprises should not operate in a manner that creates obstacles to trade and investment. In that light, each Party shall ensure that any state enterprise that it establishes or maintains: (a) acts in a manner that is not inconsistent with the Party s obligations under this Agreement wherever such enterprise exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant licenses, approve commercial transactions, or impose quotas, fees, or other charges; and (a) acts in a manner that is not inconsistent with the Party s obligations under this Agreement wherever such enterprise exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant licenses, approve commercial transactions, or impose quotas, fees, or other charges; and (a) acts in a manner that is not inconsistent with the Party s obligations under this Agreement wherever such enterprise exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant licenses, approve commercial transactions, or impose quotas, fees, or other charges; and (b) accords non discriminatory treatment in the sale of its goods or services to covered investments. 2. Nothing in this Chapter shall be construed to prevent a Party from establishing or maintaining a state enterprise. (b) accords non discriminatory treatment in the sale of its goods or services to covered investments. 2. Nothing in this Chapter shall be construed to prevent a Party from establishing or maintaining a state enterprise. (b) accords non discriminatory treatment in the sale of its goods or services to covered investments. 2. Nothing in this Chapter shall be construed to prevent a Party from establishing or maintaining a state enterprise. Article 16.5: Technical Cooperation Recognising that the Parties can benefit by sharing their diverse experience in developing, applying and enforcing competition law and in developing and implementing competition policies, the Parties shall consider undertaking mutually agreed technical cooperation activities, subject to available resources, including: (a) providing advice or training on relevant issues, including through the exchange of officials; Article 13.7: Differences in Pricing Article 16.4: Differences in Pricing Article 13.7: Differences in Pricing The charging of different prices in different markets, or within the same market, where such differences are based on normal commercial considerations, such as taking account of supply and demand conditions, is not in itself inconsistent with Articles 13.5 and 13.6. Articles 16.2 and 16.3 shall not be construed to prevent a monopoly or state enterprise from charging different prices in different markets, or within the same market, where such differences are based on normal commercial considerations, such as taking account of supply and demand conditions. The charging of different prices in different markets, or within the same market, where such differences are based on normal commercial considerations, such as taking account of supply and demand conditions, is not in itself inconsistent with Articles 13.5 and 13.6. Prepared by the Law Offices of Stewart and Stewart Page 9 of 16
(b) exchanging information and experiences on competition advocacy, including ways to promote a culture of competition; and (c) assisting a Party as it implements a new national competition law. Article 16.6: Consumer Protection 1. The Parties recognise the importance of consumer protection policy and enforcement to creating efficient and competitive markets and enhancing consumer welfare in the free trade area. Article 16.6: Cross Border Consumer Protection 1. The Parties recognize the importance of cooperation on matters related to their consumer protection laws in order to enhance the welfare of their consumers. Accordingly, the Parties shall cooperate, in appropriate cases of mutual concern, in the enforcement of their consumer protection laws. 2. For the purposes of this Article, fraudulent and deceptive commercial activities refers to those fraudulent and deceptive commercial practices that cause actual harm to consumers, or that pose an imminent threat of such harm if not prevented, for example: (a) a practice of making misrepresentations of material fact, including implied factual misrepresentations, that cause significant detriment to the economic interests of misled consumers; (b) a practice of failing to deliver products or provide services to consumers after the consumers are charged; or (c) a practice of charging or debiting consumers financial, telephone or other accounts without authorisation. 3. Each Party shall adopt or maintain consumer protection laws or other laws or regulations that proscribe fraudulent and deceptive commercial activities.7 Footnote 7 For greater certainty, the laws or regulations a Party adopts or maintains to proscribe these activities can be civil or criminal in nature. Prepared by the Law Offices of Stewart and Stewart Page 10 of 16
4. The Parties recognise that fraudulent and deceptive commercial activities increasingly transcend national borders and that cooperation and coordination between the Parties is desirable to effectively address these activities. 5. Accordingly, the Parties shall promote, as appropriate, cooperation and coordination on matters of mutual interest related to fraudulent and deceptive commercial activities, including in the enforcement of their consumer protection laws. 6. The Parties shall endeavour to cooperate and coordinate on the matters set out in this Article through the relevant national public bodies or officials responsible for consumer protection policy, laws or enforcement, as determined by each Party and compatible with their respective laws, regulations and important interests and within their reasonably available resources. 2. The Parties shall endeavor to strengthen cooperation between the United States Federal Trade Commission, on the one hand, and the Ministry of Finance and Economy of Korea and the Korea Fair Trade Commission, on the other, in areas of mutual concern relating to their respective consumer protection laws, including by: (a) consulting on consumer protection policies and exchanging information related to the enactment and administration of their consumer protection laws; (b) strengthening cooperation in detecting and preventing fraudulent and deceptive commercial practices against consumers; (c) consulting on ways to reduce consumer protection law violations that have significant cross border dimensions; and (d) supporting implementation of the OECD Guidelines for Protecting Consumers from Fraudulent and Deceptive Commercial Practices Across Borders (2003). Prepared by the Law Offices of Stewart and Stewart Page 11 of 16
3. Nothing in this Article shall limit the discretion of an agency referred to in paragraph 2 to decide whether to take action in response to a request by a counterpart agency of the other Party, nor shall it preclude any of those agencies from taking action with respect to any particular matter. 4. Each Party shall endeavor to identify, in areas of mutual concern and consistent with its own important interests, obstacles to effective cooperation with the other Party in the enforcement of its consumer protection laws, and shall consider modifying its domestic legal framework to reduce such obstacles. Article 16.7: Transparency 1. The Parties recognise the value of making their competition enforcement policies as transparent as possible. 2. Recognising the value of the APEC Competition Law and Policy Database in enhancing the transparency of national competition laws, policies and enforcement activities, each Party shall endeavour to maintain and update its information on that database. Article 13.8: Transparency and Information Requests 1. The Parties recognize the value of transparency of government competition policies. Article 16.5: Transparency 1. The Parties recognize the value of transparency in their competition enforcement policies. Article 13.8: Transparency and Information Requests 1. The Parties recognize the value of transparency of government competition policies. 3. On request of another Party, a Party shall make 2. On request, each Party shall make available to available to the requesting Party public another Party public information concerning its: information concerning: (a) its competition law enforcement policies and practices; and 2. On request of a Party, each Party shall make available to the other Party public information concerning its: 2. On request, each Party shall make available to another Party public information concerning its: (a) competition law enforcement activities; (a) competition law enforcement activities; (a) competition law enforcement activities; (b) state enterprises and designated monopolies, public or private, at any level of government; and (b) state enterprises and designated monopolies, (b) state enterprises and designated monopolies, public or private, at any level of government, public or private, at any level of government; and provided that the request indicates the entities involved, specifies the particular goods or services and markets concerned, and includes some indicia that these entities may be engaging in practices that may hinder trade or investment between the Parties; and Prepared by the Law Offices of Stewart and Stewart Page 12 of 16
(c) export associations registered or certified as such to the central government, including any conditions the Party imposes on them. (c) export associations registered or certified as such to the central government, including any conditions the Party imposes on them. (b) exemptions and immunities to its national competition laws, provided that the request specifies the particular good or service and market of concern and includes information explaining how the exemption or immunity may hinder trade or investment between the Parties. In a request under subparagraph (b), a Party shall indicate the entities or localities involved, specify the particular goods or services and markets concerned, and include indicia of practices that may restrict trade or investment between the Parties. In a request under subparagraph (c), a Party shall specify the particular goods or services concerned. 3. On request, each Party shall make available to the other Party public information concerning exemptions provided under its competition laws. The requesting Party shall specify the particular goods or services and markets of interest and include indicia that the exemption may restrict trade or investment between the Parties. (c) exemptions and immunities to its competition laws, provided that the request specifies the particular goods or services and markets of concern, and includes indicia that the exemption or immunity may hinder trade or investment between the Parties. In a request under subparagraph (b), a Party shall indicate the entities or localities involved, specify the particular goods or services and markets concerned, and include indicia of practices that may restrict trade or investment between the Parties. In a request under subparagraph (c), a Party shall specify the particular goods or services concerned. 3. On request, each Party shall make available to the other Party public information concerning exemptions provided under its competition laws. The requesting Party shall specify the particular goods or services and markets of interest and include indicia that the exemption may restrict trade or investment between the Parties. 4. Each Party shall ensure that a final decision finding a violation of its national competition laws is made in writing and sets out, in non criminal matters, findings of fact and the reasoning, including legal and, if applicable, economic analysis, on which the decision is based. 5. Each Party shall further ensure that a final decision referred to in paragraph 4 and any order implementing that decision are published, or if publication is not practicable, are otherwise made available to the public in a manner that enables interested persons and other Parties to become acquainted with them. Each Party shall ensure that the version of the decision or order that is made available to the public does not include confidential information that is protected from public disclosure by its law. 3. Each Party shall ensure that all final administrative decisions finding a violation of its competition laws are in writing and set out any relevant findings of fact and the reasoning and legal analysis on which the decision is based. Each Party shall further ensure that the decisions and any orders implementing them are published or, where publication is not practicable, otherwise made available to the public in such a manner as to enable interested persons and the other Party to become acquainted with them. The version of the decisions or orders that the Party makes available to the public may omit business confidential information or other information that is protected by its law from public disclosure. Article 16.8: Consultations Article 13.9: Consultations Article 16.7: Consultations Article 13.9: Consultations Prepared by the Law Offices of Stewart and Stewart Page 13 of 16
In order to foster understanding between the To foster understanding between the Parties, or 1. To foster understanding between the Parties, To foster understanding between the Parties, or Parties, or to address specific matters that arise to address specific matters that arise under this or to address specific matters that arise under to address specific matters that arise under this under this Chapter, on request of another Party, a Chapter, each Party shall, on request of another this Chapter, each Party shall, on request of the Chapter, each Party shall, on request of another Party shall enter into consultations with the Party, enter into consultations. In its request, the other Party, enter into consultations regarding Party, enter into consultations. In its request, the requesting Party. In its request, the requesting Party shall indicate, if relevant, how the matter representations made by the other Party. In its Party shall indicate, if relevant, how the matter Party shall indicate, if relevant, how the matter affects trade or investment between the Parties. affects trade or investment between the Parties. request, the Party shall indicate, if relevant, how the matter affects trade or investment between the Parties. affects trade or investment between the Parties. The Party addressed shall accord full and sympathetic consideration to the concerns of the requesting Party. The Party addressed shall accord full and sympathetic consideration to the concerns of the other Party. 2. The Party to which a request for consultations has been addressed shall accord full and sympathetic consideration to the concerns raised by the other Party. 3. To facilitate discussion of the matter that is the subject of the consultations, each Party shall endeavor to provide relevant non confidential information to the other Party. The Party addressed shall accord full and sympathetic consideration to the concerns of the other Party. Article 16.9: Non Application of Dispute Settlement No Party shall have recourse to dispute settlement under Chapter BBB (Dispute Settlement) for any matter arising under this Chapter. Article 13.10: Dispute Settlement Article 16.8: Dispute Settlement Article 13.10: Dispute Settlement No Party may have recourse to dispute settlement under this Agreement for any matter arising under Article 13.2, 13.3, 13.4, or 13.9. Neither Party may have recourse to dispute settlement under this Agreement for any matter arising under Article 16.1, 16.6, or 16.7. No Party may have recourse to dispute settlement under this Agreement for any matter arising under Article 13.2, 13.3, 13.4, or 13.9. Article 13.11: Definitions Article 16.9: Definitions Article 13.11: Definitions For purposes of this Chapter: For purposes of this Chapter: For purposes of this Chapter: consumer protection laws means: (a) in the case of Korea, Chapters III, IV.3, IX, and X of the Framework Act on Consumer, and the Fair Labeling and Advertising Act and its implementing regulations; and a delegation includes a legislative grant, and a government order, directive, or other act, transferring to the monopoly or state enterprise, or authorizing the exercise by the monopoly or state enterprise of, governmental authority; (b) in the case of the United States, laws and regulations prohibiting unfair or deceptive acts or practices within the meaning of Section 5 of the Federal Trade Commission Act ; a delegation includes a legislative grant, and a government order, directive, or other act, transferring to the monopoly or state enterprise, or authorizing the exercise by the monopoly or state enterprise of, governmental authority; a delegation includes a legislative grant, and a government order, directive, or other act, transferring to the monopoly or state enterprise, or authorizing the exercise by the monopoly or state enterprise of, governmental authority; Prepared by the Law Offices of Stewart and Stewart Page 14 of 16
designate means to establish, designate, or designate means, whether formally or in effect, designate means to establish, designate, or authorize a monopoly or to expand the scope of a to establish, designate, or authorize a monopoly authorize a monopoly or to expand the scope of a monopoly to cover an additional good or service, or to expand the scope of a monopoly to cover an monopoly to cover an additional good or service, whether formally or in effect; additional good or service; whether formally or in effect; Annex 16 A: Application of Article 16.2, Article 16.3 and Article 16.4 to Brunei Darussalam government monopoly means a monopoly that is owned, or controlled through ownership interests, by the central government of a Party or by another such monopoly; in accordance with commercial considerations means consistent with normal business practices of privately held enterprises in the relevant business or industry; market means the geographic and commercial market for a good or service; monopoly means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant; and non discriminatory treatment means the better of national treatment and most favored nation treatment, as set out in the relevant provisions of this Agreement. government monopoly means a monopoly that is owned, or controlled through ownership interests, by the central government of a Party;4 Footnote 4 For greater certainty, ownership, or control through ownership interests, may be direct or indirect. in accordance with commercial considerations means consistent with normal business practices of privately held enterprises in the relevant business or industry; market means the geographical and commercial market for a good or service; monopoly means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant; and non discriminatory treatment means national treatment and most favored nation treatment, as set out in the relevant provisions of this Agreement, including the terms and conditions set out in the relevant Annexes thereto. government monopoly means a monopoly that is owned, or controlled through ownership interests, by the central government of a Party or by another such monopoly; in accordance with commercial considerations means consistent with normal business practices of privately held enterprises in the relevant business or industry; market means the geographic and commercial market for a good or service; monopoly means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant; and non discriminatory treatment means the better of national treatment and most favored nation treatment, as set out in the relevant provisions of this Agreement. Prepared by the Law Offices of Stewart and Stewart Page 15 of 16
1. If as of the date of entry into force of this Agreement, Brunei Darussalam does not have a national competition law which is in force and has not established a national competition authority, Article 16.2 (Procedural Fairness in Competition Law Enforcement), Article 16.3 (Private Rights of Action) and Article 16.4 (Cooperation) shall not apply to Brunei Darussalam for a period of no longer than 10 years after that date. 2. If Brunei Darussalam establishes a national competition authority or authorities before the end of the 10 year period, Article 16.2 (Procedural Fairness in Competition Law Enforcement), Article 16.3 (Private Rights of Action), and Article 16.4 (Cooperation) shall apply to Brunei Darussalam from the date of establishment. 3. During the 10 year period, Brunei Darussalam shall take such steps as may be necessary to ensure that it is in compliance with Article 16.2 (Procedural Fairness in Competition Law Enforcement), Article 16.3 (Private Rights of Action) and Article 16.4 (Cooperation) at the end of the 10 year period and shall endeavour to comply with these obligations before the end of such period. Upon request of a Party, Brunei Darussalam shall inform the Parties of its progress since entry into force of the Agreement in developing and implementing an appropriate national competition law and establishing a national competition authority or authorities. Prepared by the Law Offices of Stewart and Stewart Page 16 of 16
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