Article 5
3. For greater certainty, the obligation in this Article does not apply to dispute resolution procedures other than those set out in this Agreement.
4. Notwithstanding paragraphs 1 and 2, the Parties reserve the right to adopt or maintain any measure that accords differential treatment to countries under any bilateral or multilateral international agreement in force or signed prior to the date of entry into force of this Agreement.
5. For greater certainty, paragraph 4 includes, in respect of agreements on the liberalisation of trade in goods or services or investment, any measures taken as part of a wider process of economic integration or trade liberalisation between the parties to such agreements.
6. The Parties reserve the right to adopt or maintain any measure that accords differential treatment to countries under any international agreement in force or signed after the date of entry into force of this Agreement involving:
(a) fisheries;
(b) maritime matters; or
(c) aviation.
Article 7
Performance Requirements
1. Neither Party may, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment of an investor of a Party or of a non-Party,
impose or enforce any requirement, or enforce any commitment or undertaking:7
(a) to export a given level or percentage of goods or services;
(b) to achieve a given level or percentage of domestic content;
(c) to purchase, use, or accord a preference to goods produced in its jurisdiction, or to purchase goods from persons in its jurisdiction;
(d) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment;
(e) to restrict sales of goods or services in its jurisdiction that such investment produces or supplies by relating such sales in any way to the volume or value of its exports or foreign exchange earnings;
(f) to transfer a particular technology, a production process, or other proprietary knowledge to a person in its jurisdiction; or
(g) to supply exclusively from the Party the goods that it produces or the services that it supplies to a specific regional market or to the world market.
2. Neither Party may condition the receipt or continued receipt of an advantage in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment of an investor of a Party or of a non-Party on compliance with any of the following requirements:
7 For greater certainty, a condition for the receipt or continued receipt of an advantage referred to in paragraph 2 does not constitute a “commitment or undertaking” for the purposes of paragraph 1.
(a) to achieve a given level or percentage of domestic content;
(b) to purchase, use, or accord a preference to goods produced in its jurisdiction, or to purchase goods from persons in its jurisdiction;
(c) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment; or
(d) to restrict sales of goods or services in its jurisdiction that such investment produces or supplies by relating such sales in any way
to the volume or value of its exports or foreign exchange earnings.
3.
(a) Nothing in paragraph 2 shall be construed to prevent a Party from conditioning the receipt or continued receipt of an advantage, in connection with an investment in its jurisdiction of an investor of a Party on compliance with a requirement to locate production, supply a service, train or employ workers, construct or expand particular facilities, or carry out research and development, in its jurisdiction.
(b) Paragraph 1(f) does not apply:
(i) when a Party authorises use of an intellectual property right in accordance with Article 318 of the TRIPS Agreement or any relevant amendment thereto, or to measures requiring the disclosure of proprietary information that fall within the scope of, and are consistent with, Article 39 of the TRIPS Agreement; or
8 The reference to “Article 31” includes footnote 7 to Article 31.
(ii) when the requirement is imposed or the commitment or undertaking is enforced by a court, administrative tribunal, or competition authority to remedy a practice determined after judicial or administrative process to be anticompetitive under the Party’s competition laws.9
(c) Paragraphs 1(a), (b), and (c), and 2(a) and (b), do not apply to qualification requirements for goods or services with respect to export promotion and foreign aid programs.
(d) Paragraphs 1(b), (c), (f), and (g), and 2(a) and (b), do not apply to government procurement.
(e) Paragraphs 2(a) and (b) do not apply to requirements imposed by an importing Party relating to the content of goods necessary to qualify for preferential tariff treatment or preferential quotas.
4. This Article does not preclude enforcement of any commitment, undertaking, or requirement between private parties, where a Party did not impose or require the commitment, undertaking, or requirement.
Article 8
Senior Management and Boards of Directors
1. Neither Party may require that an enterprise of that Party that is a covered investment appoint to senior management positions natural persons of any particular nationality.
9 The Parties recognise that a patent does not necessarily confer market power.
2. Neither Party may require that a majority of the board of directors, or any committee thereof, of an enterprise of that Party that is a covered investment, be of a particular nationality, or resident in the Party.
3. Neither Party may require that less than a majority of the board of directors, or any committee thereof, of an enterprise of that Party that is a covered investment, be of a particular nationality, or resident in the Party, where that requirement would materially impair the ability of the investor to exercise control over its investment.
Article 9
Non-Conforming Measures
1. Articles 5 (National Treatment), 6 (Most-Favoured-Nation Treatment), 7 (Performance Requirements) and 8 (Senior Management and Boards of Directors) shall not apply to:
(a) any existing non-conforming measure that is maintained
by a Party: (i) as set out by that Party in its Schedule to
Annex 4:I; or
(ii) maintained by a Party at a regional or local level of government;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(c) 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 immediately
before the amendment, with Articles 5 (National Treatment), 6 (Most-Favoured-Nation Treatment), 7 (Performance Requirements) and 8 (Senior Management and Boards of Directors).
2. Articles 5 (National Treatment), 6 (Most-Favoured-Nation Treatment), 7 (Performance Requirements) and 8 (Senior Management and Boards of Directors) 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 4:II.
3. Neither Party may, under any measure adopted after the date of entry into force of this Agreement and covered by its Schedule to Annex 4:II, require an investor of the other Party, by reason of its nationality, to sell or otherwise dispose of an investment existing at the time the measure becomes effective.
4. Articles 5 (National Treatment) and 6 (Most–Favoured-Nation Treatment) do not apply to any measure that is an exception to, or derogation from, a Party’s obligations under the TRIPS Agreement.
5. Articles 5 (National Treatment), 6 (Most-Favoured-Nation Treatment) and 8 (Senior Management and Boards of Directors) do not apply to:
(a) government procurement; or
(b) subsidies or grants provided by a Party, including government- supported loans, guarantees, and insurance.
Article 10
Minimum Standard of Treatment
1. Each Party shall accord to covered investments treatment in accordance with the customary international law minimum standard of treatment, including fair and equitable treatment and full protection and security.
2. The obligation in paragraph 1 to provide:
(a) “fair and equitable treatment” includes the obligation not to deny justice in criminal, civil or administrative adjudicatory proceedings in accordance with the principle of due process;
(b) “full protection and security” requires each Party to take such measures as may be reasonably necessary to ensure the physical protection and security of covered investments.
3. The concepts of “fair and equitable treatment” and “full protection and security” do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment, and do not create additional substantive rights.
4. A determination that there has been a breach of another provision of this Agreement, or of a separate international agreement, does not establish that there has been a breach of this Article.
Article 11
Treatment in Case of Armed Conflict or Civil Strife
1. Notwithstanding paragraph 5 of Article 9 (Non-conforming Measures), each Party shall accord to investors of the other Party and to investments of an investor of the other Party with respect to measures it adopts or maintains relating to losses suffered by investments in its jurisdiction owing to armed conflict or civil strife, treatment no less favourable than that it accords, in like circumstances, to:
(a) its own investors and their investments; and
(b) investors of any non-Party and their investments.
2. Notwithstanding paragraph 1, if an investor of a Party suffers a loss in the other Party resulting from:
(a) requisitioning of its covered investment or part thereof by the latter’s forces or authorities; or
(b) destruction of its covered investment or part thereof by the latter’s forces or authorities, which was not required by the necessity of the situation;
the latter Party shall provide the investor with restitution, compensation, or both, as appropriate, for such loss. Any compensation shall be prompt, adequate, and effective in accordance with paragraphs 2 to 4 of Article 13 (Expropriation), mutatis mutandis.
3. Paragraph 1 does not apply to existing measures relating to subsidies or grants provided by a Party, including government-supported loans,
guarantees, and insurance that would be inconsistent with Article 5 (National Treatment) but for paragraph 5(b) of Article 9 (Non- conforming Measures).
Article 12