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Sets out definitions of terms used in this Chapter.
The countries recognise the importance of intellectual property in promoting economic and social development, and the need to achieve a balance between the rights of right-holders and users. They commit to maintain IPR regimes and systems that facilitate trade, provide certainty for rights-holders and users, and facilitate the enforcement of IPRs.
The countries reaffirm their rights and obligations under the WTO TRIPS Agreement and other multilateral agreements, including for copyright and performers’ rights. Each country may adopt appropriate measures to prevent the abuse of IPRs. The countries may establish measures to protect traditional knowledge.
Each country shall provide an opportunity for interested parties to oppose the application of a trade mark.
The terms listed in Annex 10.A are recognised (in the country that listed them) as geographical indications for wines and spirits. The other parties undertake to protect those terms in their territories, subject to their domestic legislation, and in accordance with the WTO TRIPS Agreement.
Legal means must be provided to prevent commercial use of country names in a manner which misleads the public.
The four countries agree to cooperate on intellectual property policy and matters, including notification of contact points for enforcement.
This Annex contains a list of terms that are recognised in Chile as geographical indications for wines and spirits.
Sets out definitions of terms used in this Chapter.
The countries recognise the importance of conducting government procurement in accordance with principles of transparency, value for money, open and effective competition, fair dealing, accountability and due process, and non-discrimination.
The Chapter applies to government procurement by any contractual means, by the government entities listed in Annex 11.A (subject to the specific exemptions also in this annex) and above the value thresholds specified in Annex 11.C.
It does not apply to procurement between government agencies, non-contractual agreements, any form of assistance to persons or governmental authorities, purchases funded by international grants or loans, and hiring of government employees.
In respect of government procurement covered by the Chapter, each country shall grant to goods, services and suppliers of the others, treatment no less favourable than that accorded to domestic goods, services and suppliers.
Countries must not discriminate in favour of any enterprise, or against local suppliers linked to suppliers in the other countries.
Rules of origin to determine customs duties on goods imported for the purposes of government procurement, shall be the same as the rules of origin applied to goods imported for other purposes.
Government entities cannot consider, seek or impose offsets at any stage of a procurement.
Countries cannot disclose confidential information that would prejudice legitimate commercial interests, unless required by law or public interest.
Countries will promptly publish measures and modification thereto relating to government procurement.
Technical specifications cannot be used for the purpose or effect of creating unnecessary obstacles to trade between the Parties. Technical specifications should be based on international standards, and related to performance and functional requirements. Advice on technical specifications may not be sought or accepted from a person having a commercial interest if this would prejudice fair competition.
Valuation of contracts should be based on the maximum total estimated value over the entire duration of the procurement.
Contracts must be awarded by means of open tendering procedures.
Advance notice should be published of intended procurement, as well as modifications to criteria, with relevant information, to give interested parties sufficient time.
Tender documentation must contain all information necessary for suppliers to prepare tenders, and be available to all interested suppliers.
All tenders must be evaluated fairly and impartially, and the contract awarded to the supplier offering best value for money or which is most advantageous in terms of essential requirements.
Contract award decisions must be published promptly, and pertinent information provided to unsuccessful suppliers on request.
Sufficient time should be provided for suppliers to register or qualify to participate in a procurement. Conditions for participation should be limited to those which are essential to ensure the supplier can fulfil the contract.
Government procurement entities may establish a list of suppliers registered or qualified to participate in procurements, while ensuring the list is open for new suppliers to be added in a timely fashion.
Provided they are not used to avoid competition or protect domestic suppliers, under certain circumstances listed in this article, contracts may be awarded by other than open tendering procedures.
Each party shall ensure that penalties and procedures are in place to address corruption and potential conflict of interest.
Suppliers must have timely, impartial access to administrative or legal review of complaints for alleged breaches of the procuring country’s laws, regulations, procedures and practice.
This article encourages the use of electronic communications in government procurement, including a single electronic portal for access to information.
The contact points from whom suppliers can obtain information on government procurement, and the website addresses for the single electronic portal of each country are in Annex 11.B.
The obligations of the Chapter do not prevent a country from taking measures to protect national security; public morals, order or safety; human, animal or plant life or health; intellectual property; the environment; or goods and services of handicapped persons, not for profit institutions, or prison labour.
A country may modify its coverage under this Chapter, provided it notifies the other countries and provides appropriate compensatory adjustments to its coverage.
This lists the entities from each party that are covered by the government procurement chapter. This is set out in Section A under each country’s title. For New Zealand the entities covered by the government procurement chapter include the core public service departments listed in New Zealand’s State Sector Act 1988 First Schedule plus NZ Defence and NZ Police, to which our current government procurement policy applies.
Each party is also able to exempt certain types of goods and services procured by the listed entities from the scope of Government Procurement Chapter. This is set out in Section B of Annex 11.A. For New Zealand, exemptions have been taken for services to procure: research and development; the construction, refurbishment or furnishing of chanceries abroad; and public health, education and welfare.
Contains the website addresses of the Single Electronic Points of Access for Singapore, Chile and New Zealand and contact details of the agencies responsible for government procurement in New Zealand and Singapore.
All procurement of goods by the listed entities in Section 1 of Annex 11.A above SDR 50,000 will be subject to the disciplines of the government procurement chapter.
Procurement of services by the listed entities in Section 1 of Annex 11.A (and not exempted by Section B of Annex 11.A) above SDR 50,000 will be subject to the disciplines of the government procurement chapter.
All procurement for construction purposes above SDR 5,000,000 will be subject to the disciplines of the government procurement chapter.
Sets out definitions of terms used in this Chapter.
The four countries aim to facilitate expansion of trade in services on a mutually advantageous basis, under conditions of transparency and progressive liberalisation, while recognising the rights of each country to regulate services, and the role of governments in providing and funding public services.
The Chapter applies to measures adopted or maintained by a country affecting trade in services.
It does not apply to: financial services; government procurement; services supplied in the exercise of governmental authority; subsidies or grants, access to employment; citizenship or residence; or air transport services. Each country can also regulate the entry of persons of another country.
Each country shall treat services and service suppliers of another country no less favourably than it accords, in like circumstances, to its own service suppliers.
Each country shall treat services and service suppliers of another country no less favourably than it accords, in like circumstances, to service suppliers of a third country (i.e. non-party to the Agreement).
Countries may not adopt or maintain limitations on the number of service suppliers or other quotas, or require specific types of legal entity or joint venture for the supply of a service.
A country cannot require a service supplier of another country to establish a local presence (eg representative office) or be resident, as a condition for the supply of a service.
The Parties can take specific reservations against the obligations of national treatment, most favoured nation (MFN) status, market access and local presence, through their schedules in Annexes III and IV.
The agreement uses a “negative list” approach to the scheduling of services commitments. If a service sector is not included in Annexes III or IV (or excluded by provisions in the Services or General Exceptions Chapters) then it is committed.
Annex III lists existing measures in each Party (usually drawn from legislation) that partially restrict the access of foreign service suppliers. For measures in this annex the level of restriction is not allowed to tighten, but Parties are able to liberalise.
These reservations are also subject to a so-called “ratchet” clause. Any liberalisation of a reservation in Annex III is automatically passed onto the other Strategic Economic Partnership (SEP) parties. Further, if the Party decides to reverse this liberalisation in the future, that reversal will not apply to the other SEP Parties.
Annex IV lists sectors that are “carved out”, i.e., exempted from the national treatment, MFN, market access and local presence obligations. Within these reservations the Party’s government retains full rights to regulate, as it deems necessary. This means the level of restriction can, if a government chooses, become more severe over time. Sectors in this Annex tend to be highly sensitive, eg public education, social security, water and cabotage.
The four countries agree to consult at least every two years to review implementation of the Chapter, including with a view to progressive liberalisation of trade in services between them.
Measures of general application affecting trade in services must be administered in a reasonable, objective and impartial manner.
Each country must ensure that qualification requirements, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, which means that such requirements must be based on objective and transparent criteria and not more burdensome than necessary to ensure the quality of the service. Relevant international standards should be taken into account.
The countries may recognise the education or experience and qualifications from the other countries, and agree to facilitate dialogue among their regulators and industry bodies to encourage this. The process for dialogue and development of recognition of the equivalence of professional standards among the Parties is set out in Annex 12.B.
Initial priority areas for work on recognition of other parties’ professional qualification and professional recognition are engineers, architects, geologists, geophysicists, planners and accountants.
A country can deny the benefits of this Chapter to service suppliers that are owned or controlled by persons of a third country or which have no substantive business operations in any of the four countries.
Each country will publish promptly all relevant measures relating to trade in services.
The countries will review the issue of disciplines on subsidies related to trade in services in light of any disciplines agreed under GATS.
Each country shall permit payments and transfers with regard to trade in services, except as provided for in Annex 12.C.
This annex sets out the financial services that are not covered by the scope of the chapter. Under Article 18.1, financial services will be negotiated within two years after entry into force of the agreement.
This annex sets out the processes for the mutual recognition of each other Party’s professional standards.
The implementation of this annex will be reviewed by the Commission within two years of entry into force of the Agreement and at least every three years thereafter.
This annex allows Chile to impose specific conditions on payments and transfers arising from trade in services.
The terms and conditions imposed by Chile’s Foreign Investment Statute and Decree Law 600 are not subject to the rights and obligations of the services chapter.
Once a commercial presence has been established in Chile, however, the operations will be subject to the rights and obligations of the services chapter.
Sets out the definitions of terms used in this Chapter.
The aim is to facilitate the temporary entry of business persons engaged in the conduct of trade and investment among the countries, while at the same time ensuring border security and protecting the domestic labour force and permanent employment.
The Chapter does not apply to people seeking access to the employment market of any one of the Parties to the agreement, nor does it apply to measures regarding citizenship, residence or employment on a permanent basis.
The commitments of the Parties under this Agreement, with regard to the entry of business people, are the same as their obligations under the GATS, in particular their commitments in the Annex on Movement of Natural Persons Supplying Services.
Each country will exchange information on immigration measures affecting the temporary entry of business persons.
The four countries will review the Chapter after two years, with a view to achieving a more comprehensive coverage of broad categories of business persons. This review may also look at the scope of the definition of business person.
Sets out the definitions of terms used in this Chapter.
Each country will ensure that its laws, regulations, procedures and administrative rulings on matters covered by the Agreement are published.
Persons should wherever possible be provided reasonable notice about administrative proceedings that affect them, and have a reasonable opportunity to support their positions. Such procedures must be in accordance with domestic law.
Each country shall establish or maintain impartial and independent tribunals or panels to review and correct administrative actions regarding matters covered by the Agreement. The countries must be provided the right to support or defend their positions, and a decision based on the evidence or record compiled by the administrative authority.
Each country will designate a contact point to facilitate communication among the countries on the Agreement.
Each country must respond to requests from other countries for information about proposed or actual measures that might affect the operation of the Agreement.
The aim of this Chapter is to provide an effective, efficient and transparent process for consultations and settlement of disputes that arise under the Agreement.
Unless specified in one of the other chapters (eg the Competition chapter), the dispute settlement provisions in this chapter will apply to all disputes regarding the interpretation or application of the Agreement, where a country has failed to carry out its obligations or where benefits have been impaired.
The countries may also choose recourse to dispute settlement under other agreements to which they belong.
The complaining country may choose the forum in which to settle the dispute. Only one forum can be used.
The countries will seek to resolve any issues that arise over operation of the Agreement through consultations. A country must respond to a request for consultations within 7 days, and enter into consultations within 30 days upon receipt of the request (15 days where perishable goods are concerned).
The countries can have recourse to good offices, conciliation and mediation at any time to resolve a dispute.
Where consultations do not resolve a dispute within 45 days, a country may seek the establishment of an arbitral panel.
The tribunal will comprise three members, one appointed by each country and a third (who acts as tribunal Chair) appointed jointly. Time limits are applied for these appointments, with the Director-General of the WTO selecting members if the countries fail to agree within the timeframes.
The arbitral tribunal must provide the countries the opportunity to develop a mutually satisfactory settlement. Any ruling made by the tribunal must be clearly set out and will be final and binding on the disputing countries. Decisions should be by consensus, otherwise by majority vote.
Article 15.9: Rules of Procedure for Arbitral Tribunals
This Article sets out some of the rules applying to procedures of tribunals, including on the use of experts, leaving the remainder to be established by the Model Rules of Procedure in Annex 15.B.
An arbitral tribunal may suspend its work for a period not exceeding 12 months, such as where the countries are trying to resolve the dispute outside the arbitral tribunal process.
The arbitral tribunal will generally report within 90 days to the disputing countries. This report will contain findings of fact, the determination of non-conformance and the tribunal’s decision. A disputing country can submit written comments within 15 days with a view to reconsideration of the initial report.
Within 30 days of the initial report, the tribunal will present a final report. This will be released publicly within 15 days thereafter. Where non-conformity is determined, the decision should be, where possible, to eliminate the non-conforming measure or the impairment of benefits.
The final report is binding and not subject to appeal. Its decision must be implemented immediately or within a reasonable period of time (which can also be determined by the tribunal). If local government has taken the non-conforming measure, the central government will advise the steps it will take to implement the decision.
Where there is disagreement over whether the non-conformity has been eliminated within the reasonable period of time, it may be referred to the tribunal.
If one country is not satisfied that the other country has adequately implemented a tribunal ruling, it may decide to suspend benefits due to the other country under the Agreement, subject to a range of conditions.
If the tribunal determines that there has been a breach of the Agreement and the country complained against considers it has eliminated the non-conformity, it may refer the issue to the arbitral tribunal. The arbitral tribunal shall issue a report within 90 days of the request. If the arbitral tribunal decides that the Party has eliminated the non-conformity; the complaining Party shall reinstate any benefits it has suspended.
If a country believes that it is not receiving one of the benefits of the agreement that it expected at the time of conclusion of the Agreement, it can use the dispute settlement provisions of the Chapter.
This Annex sets out the procedures for conducting an arbitral tribunal including how to establish the tribunal; how to conduct the hearings, third party participation and timing, distribution of costs, working language, and submissions from stakeholders.
Sets out the definitions of terms used in this Chapter.
The four countries agree to establish a framework for cooperation to enhance the benefits of the Agreement for building a strategic economic partnership. Closer cooperation will include relationships in innovation, research and development, new opportunities for trade and investment, supporting the private sector to build strategic alliances, and encouraging the presence of the four countries and their goods and services in the respective markets of Asia, Pacific and Latin America.
Particular attention will be given to economic, scientific, technological, educational, cultural and primary industry cooperation.
The countries will engage in policy dialogue on ways to expand trade and on important economic and trade issues, provide assistance to business people and trade missions, explore opportunities in third markets, and work together on promoting English and other languages and the use of IT, as agreed by APEC Leaders.
Cooperation in RST will include building on existing agreements, encouraging institutional linkages in research, exchange of scientists and researchers, and promotion of public/private sector partnerships.
Education cooperation will aim to build on existing cooperative arrangements, promote networking and facilitate exchanges in areas such as education quality assurance processes, on-line and distance education, tertiary education and vocational training, and teacher training and development.
The countries aim to promote exchanges of information on cultural issues.
Cooperation will build on existing arrangements in agriculture and forestry, to promote better understanding between the primary sectors in each country, encourage research and technical cooperation, and promote international trade liberalisation in primary industry sectors.
Each country will establish a contact point to facilitate cooperative activities, working with government agencies, private sector, educational and research institutions. The Commission responsible for the oversight of the Agreement will also discuss areas of interest for cooperation.
Where appropriate, countries that are not a member of the Agreement may be involved in cooperative activities.
Each country will fund their participation in cooperative activities from their own resources.
The Commission will have oversight, implementation and review functions under the cooperation framework and make recommendations on cooperative activities in accordance with the strategic priorities of the four countries.
A Trans-Pacific Strategic Economic Partnership Commission (Commission) is established which may meet at either ministerial or senior official level.
The Commission will review any matters relating to the implementation of the Agreement, with an initial review within 2 years of entry into force and every 3 years thereafter. It will supervise all committees and working groups established under the Agreement. The Commission may explore measures for further expansion of trade and investment between the Parties, including approving any modifications of the tariff schedules, rules of origin and government procurement annexes.
The countries will mutually agree the issues that the Commission considers.
The Commission will meet annually or at a different time if mutually agreed by the Parties. Each country in succession will convene the Commission.
The annexes and footnotes to the Agreement are an integral part of the Agreement.
Nothing in this Agreement derogates from the existing rights and obligations of a Party under the WTO Agreement or any other multilateral or bilateral agreement to which it is a party.
Any reference in this Agreement to any other treaty or international agreement also means its successor treaty or agreement.
Each Party will take all reasonable measures to ensure that their local government and authorities observe the obligations of this agreement.
The countries will endeavour to look at the issue of the recognition of distinctive products (eg Chilean Pisco) one year after entry into force of the Agreement.
If a Party grants recognition of a distinctive product to another country, it has to provide the same treatment to a Party.
A country is not required to disclose information contrary to its laws, or that would impede law enforcement, or would prejudice the legitimate commercial interests of enterprises.
A country will protect any information that is given to it on a confidential basis by another country. The receiving country will only disclose the confidential information if: it has the specific permission of the providing country; or if it is required to be disclosed in judicial proceedings.
This article sets out a range of general exceptions to the obligations in the rest of the Agreement for trade in goods and services. These exceptions include measures necessary to protect: human, animal or plant life or health; conservation of living and non-living exhaustible natural resources; public morals; importation or exportation of gold or silver; products of prison labour; national works, items or specific sites of historical or archaeological value, or to support creative arts of national value; acquisition or distribution of products in general or local short supply.
The footnote provides a list of activities that are included within the term “creative arts”.
Specific actions necessary to protect essential security interests are exempted from the obligations of the Agreement.
These provisions permit a country flexibility in implementing its obligations under the Agreement where it is facing serious balance of payments or other external financial difficulties. These provisions are based on the WTO Agreement, and impose conditions on the application of any measures which the country may impose.
The Agreement does not apply to taxation measures, except where there are rights and obligations under the WTO Agreement. If any of the countries have a tax convention between them, this agreement will not affect their rights and obligations under the tax convention.
New Zealand will not be prevented from adopting measures it deems necessary to accord more favourable treatment to Māori, including in fulfilment of its obligations to Māori under the Treaty of Waitangi. If another country invokes dispute settlement under Chapter 15 to investigate any action taken by New Zealand under this Article, an arbitral tribunal will not be able to interpret the Treaty of Waitangi.
Unless otherwise agreed, the Parties shall commence negotiations on investment no later than two years after entry into force of the Agreement.
Unless otherwise agreed, the Parties shall commence negotiations on financial services no later than two years after entry into force of the Agreement.
The Agreement will be open for signature by Brunei Darussalam, Chile, New Zealand and Singapore for six months from 2 June 2005.
The Agreement shall enter into force on 1 January 2006, provided that at least two signatories have deposited an instrument of ratification.
The Agreement will apply provisionally for Brunei Darussalam from 1 January 2006, except for the chapters relating to services and government procurement and the competition chapter.
The services and government procurement chapters will apply once Brunei has completed its services and government procurement schedule negotiations. These negotiations need to be completed within 2 years after entry into force of the Agreement.
In light of its small size, Brunei has been granted flexibility on its commitments in the competition chapter. If Brunei develops a competition law and establishes a competition authority in the future then the provisions of the competition chapter will apply. Until then, Brunei has agreed to support the competition principles in the competition chapter.
The conditions for Brunei’s joining are set out in more detail in an exchange of letters that will be signed at Ministerial level. (See below for a summary of the letters.)
The Agreement is open to accession by any APEC Economy or other State, on terms to be agreed between the Parties.
The Parties have to agree to any modifications or additions to the Agreement. If a provision of a WTO Agreement that has been incorporated into the SEP is amended, the Parties will consult as to whether to amend the SEP on the same basis.
A country may withdraw from the Agreement after 6 months of notifying this. The Agreement will remain in force between the remaining countries.
New Zealand will act as the Depositary of the Agreement, and will notify the UN Secretary General and the WTO Director-General.
English and Spanish texts of the Agreement are equally authentic.
