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BACKGROUND
The Taiwan Fair Trade Commission, the Australian Competition and Consumer
Commission, and the New Zealand Commerce Commission (hereinafter referred
to as the "Participants") note that:
(a) the Participants share the view that the sound and effective enforcement
of their competition and fair trading laws is a matter of importance
to the efficient operation of the respective markets of the jurisdictions
of the Participants and to trade among the jurisdictions of the Participants;
(b) this Arrangement is to replace and supersede the existing operation
of the "Co-Operation and Co-Ordination Arrangement between the
Taipei Economic and Cultural Office and the New Zealand Commerce and
Industry Office Regarding the Application of the Competition and Fair
Trading Laws". Accordingly the "Co-Operation and Co-Ordination
Arrangement between the Taipei Economic and Cultural Office and the
New Zealand Commerce and Industry Office Regarding the Application of
the Competition and Fair Trading Laws" will be terminated on the
date that this Arrangement comes into effect.
(c) this Arrangement will not affect the existing operation of the:
- "Co-operation and Co-ordination Agreement between the Australian
Trade Practices Commission and New Zealand Commerce Commission";
and
- "Cooperation and Coordination Arrangement between the Taipei
Economic and Cultural Office and the Australian Commerce and Industry
Office Regarding the Application of the Competition and Fair Trading
Laws".
The Participants have decided on the following ten paragraphs:
PARAGRAPH I
PURPOSE AND DEFINITIONS
1. The purpose of this Arrangement is to promote cooperation and coordination
among the Participants and to lessen the possibility or impact of differences
among the Participants in the application of their competition and fair
trading laws.
2. In this Arrangement:
(a) "competition and fair trading laws" will mean:
- for the Taiwan Fair Trade Commission, the Fair Trade Law;
- for the Australian Competition and Consumer Commission, the Trade
Practices Act 1974 as amended; and
- for the New Zealand Commerce Commission, the Commerce Act 1986
and the Fair Trading Act 1986.
(b) "enforcement activity(ies)" will mean any application
of competition and fair trading laws by way of investigation or proceeding
conducted by a Participant.
(c) "territory(ies)" will mean the territories in respect
of which the competition and fair trading laws are administered by the
Participants.
3. Any reference in this Arrangement to a specific provision of the
competition and fair trading laws will be interpreted as referring to
that provision as amended from time to time and to any successor provisions.
PARAGRAPH II
NOTIFICATION
1. Each Participant will notify the other Participants of amendments
to that Participant's competition and fair trading laws.
2. A Participant will notify another Participant in the manner provided
by this Paragraph with respect to its enforcement activities that may
affect the important interests of the other Participant, including those
that:
(a) are relevant to enforcement activities of the other Participant;
(b) involve any conduct or transaction that may be subject to penalties
or other relief under the competition and fair trading laws administered
and enforced by the other Participant, other than mergers or acquisitions,
carried out wholly or in part in the territory of such Participant,
except where those activities are insubstantial;
(c) involve a merger or acquisition in which one or more of the Participants
to the transaction, or a company controlling one or more of the Participants
to the transaction, is a company incorporated or organised under the
laws of the other Participant's territory; and
(d) involve a Participant seeking information located in other Participant's
territory.
3. Each Participant will endeavour to give notification pursuant to
this Paragraph when a Participant becomes aware that notifiable circumstances
are present.
4. Notifiable circumstances, with respect to mergers or acquisitions,
are present:
(a) when pre-merger notification is received by the Taiwan Fair Trade
Commission under Article 11 of the Fair Trade Law;
(b) when an application for authorisation is received by the Australian
Competition and Consumer Commission under Part VII of the Trade Practices
Act 1974; and
(c) when the New Zealand Commerce Commission receives pre-merger notification,
such notice being at the discretion of the merging parties.
5. Once a particular enforcement matter has been notified, subsequent
notifications on that matter need not be made unless the notifying Participant
becomes aware of new issues bearing upon the important interests of
the jurisdiction of the notified Participant in the application of its
competition and fair trading laws, or unless the notified Participant
requests otherwise.
6. Notifications in respect of enforcement activity will be sufficiently
detailed to enable the notified Participant to make an initial evaluation
of the effects of the enforcement activity on the important interests
of its own jurisdiction.
PARAGRAPH III
COORDINATION OF ENFORCEMENT ACTIVITIES
1. Each Participant will endeavour to render assistance to another
Participant in its enforcement activities to the extent compatible with
the laws and important interests of the jurisdiction of the assisting
Participant.
2. In cases where the Participants have an interest in pursuing enforcement
activities with regard to related matters, they may decide that it is
in their common interest to coordinate their enforcement activities.
In considering whether particular enforcement activities should be coordinated,
either in whole or in part, each Participant will endeavour to take
into account the following factors:
(a) the effect of such coordination on the ability of each Participant
to achieve the objectives of its enforcement activities;
(b) the relative ability of each Participant to obtain information
necessary to conduct the enforcement activities;
(c) the extent to which each Participant can secure effective preliminary
or permanent relief against any conduct or transaction that may be subject
to penalties or other relief under the competition and fair trading
laws administered and enforced by the Participants involved;
(d) the opportunity to make more efficient use of resources; and
(e) the possible reduction of cost to persons subject to enforcement
activities.
PARAGRAPH IV
AVOIDANCE OF CONFLICT
1. It is in the common interest of the Participants to minimise any
potentially adverse effects of one Participant's enforcement activities
on any of the other Participants' interests in the application of their
competition and fair trading laws.
2. Where one Participant informs another Participant that specific
enforcement activity by the second Participant may affect the first
Participant's interests in the application of its competition and fair
trading laws, the second Participant will endeavour to provide:
(a) timely notice of significant developments relating to those interests;
and
(b) an opportunity to the first Participant to provide input regarding
any proposed penalty or remedy.
3. Any questions arising out of this Arrangement will be addressed
in as timely and practicable a manner as circumstances permit.
PARAGRAPH V
EXCHANGE OF INFORMATION
The Participants have decided that it is in their common interest to
share information which will facilitate the effective application of
the competition and fair trading laws respectively and promote better
understanding of each Participant's enforcement policies and activities.
To further their common interests, the Participants will endeavour to
exchange and provide information in relation to:
(a) investigations and research conducted;
(b) speeches, research papers, journal articles, and other materials;
(c) compliance education programs;
(d) amendments to relevant legislation; and
(e) human resources development and management.
PARAGRAPH VI
MEETINGS
To further their common interest in cooperation and coordination in
relation to their enforcement activities, the Participants will hold
periodic meetings, as necessary, to:
(a) exchange information on their current enforcement activities and
priorities;
(b) exchange information on economic sectors of common interest;
(c) discuss competition and fair trading law changes which they are
considering; and
(d) discuss other matters of mutual interest relating to the application
of competition and fair trading laws.
PARAGRAPH VII
COMMUNICATIONS UNDER THIS ARRANGEMENT
Communications under this Arrangement may be carried out by direct
oral, telephonic, facsimile or e-mail communication among the Participants.
PARAGRAPH VIII
CONFIDENTIALITY AND USE OF INFORMATION
1. Notwithstanding any other provision of this Arrangement, no Participant
is required to communicate information to any other Participant where
such communication is prohibited by the law of that Participant or would
be incompatible with the important interests in the application of its
competition or fair trading laws.
2. Unless otherwise decided by the Participants, each Participant will,
to the fullest extent possible, maintain and protect the confidentiality
of any information communicated to it in confidence by the other Participants
under this Arrangement, unless the Participant providing the confidential
information consents, in writing, to the release of the information.
3. Information received by a Participant under this Arrangement will
only be used for the purpose of this Arrangement.
4. A Participant may require that information furnished pursuant to
this Arrangement be used subject to the terms and conditions it may
specify. The receiving Participant will not use such information in
a manner contrary to such terms and conditions without the prior consent,
in writing, of the providing Participant.
PARAGRAPH IX
EXISTING LAW
Nothing in this Arrangement will require a Participant to act, or omit
to act, in a manner inconsistent with the existing laws of its jurisdiction,
or require any change in the laws of the jurisdictions of the Participants.
PARAGRAPH X
ENTRY INTO EFFECT, TERMINATION AND OTHER PARTICPANTS
1. This Arrangement will come into effect when signed by all Participants.
2. This Arrangement will remain in effect until terminated by one,
or more, of the Participants.
3. Any Participant may terminate the Arrangement by providing 30 days
written notice to the other Participants.
4. The Participants will endeavour to periodically review the operation
of this Arrangement with a view to assessing ways in which the Arrangement
could be improved.
5. Other competition authorities may join this Arrangement on terms
to be decided between it and the Participants to the Arrangement at
the time of the application to join. The Participants may develop, as
they consider appropriate, procedures to deal with such new Participants.
FOR THE TAIWAN FAIR TRADE COMMISSION:
SIGNED at Wellington, on the 25th day of July, 2002.
______/s/______
HWANG, TZONG-LEH
CHAIRPERSON
FOR THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION:
SIGNED at Canberra, on the 30th day of July, 2002.
______/s/______
PROFESSOR ALLAN FELS
CHAIRPERSON
FOR THE NEW ZEALAND COMMERCE COMMISSION:
SIGNED at Wellington, on the 25th day of July, 2002.
______/s/______
JOHN BELGRAVE
CHAIR
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