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ON THE APPLICATION OF POSITIVE COMITY PRINCIPLES
THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF CANADA (hereinafter "the Parties"):
HAVING REGARD to the August 1995 Agreement between the Government of the United States of America and the Government of Canada Regarding the Application of Their Competition and Deceptive Marketing Practices Laws (hereinafter "the 1995 Agreement");
RECOGNIZING that the 1995 Agreement has contributed to coordination, cooperation and avoidance of conflicts in competition law enforcement;
NOTING in particular Article V of the 1995 Agreement, commonly referred to as the "Positive Comity" article, which calls for cooperation regarding anticompetitive activities occurring in the territory of one Party that adversely affect theimportant interests of the other Party;
BELIEVING that further elaboration of the principles of positive comity and of the implementation of those principles would enhance the 1995 Agreement's effectiveness in relation to such anticompetitive activities; and
NOTING that nothing in this Agreement or its implementation shall be construed as prejudicing either Party's position on issues of competition law jurisdiction in the international context,
HAVE AGREED as follows:
Scope and Purposes of this Agreement
1. This Agreement applies where the competition authorities of a Party satisfy the competition authorities of the other Party that there is reason to believe that the following circumstances are present:
2. The purposes of this Agreement are to:
As used in this Agreement:
1. "Adverse effects" and "adversely affected" mean harm caused by anticompetitive activities to:
2. "Anticompetitive activities" means any conduct or transaction that may be subject to penalties or other relief under the competition laws of a Party.
3. "Competition authorities" means:
4. "Competition law(s)" means:
as well as such other laws or regulations as the Parties shall jointly agree in writing to be a "competition law" for the purposes of this Agreement.
5. "Enforcement activities" means any investigation or proceeding conducted by the competition authorities of a Party in relation to its competition laws.
6. "Requested Party" means a Party in the territory of which anticompetitive activities appear to be occurring.
7. "Requesting Party" means a Party that is adversely affected by anticompetitive activities that appear to be occurring in whole or in substantial part in the territory of the other Party.
The competition authorities of a Requesting Party may request the competition authorities of a Requested Party to investigate and, if warranted, to remedy anticompetitive activities in accordance with the Requested Party's competition laws. Such a request may be made regardless of whether the activities also violate the Requesting Party's competition laws, and regardless of whether the competition authorities of the Requesting Party have commenced or contemplate taking enforcement activities under their own competition laws.
Deferral or Suspension of Investigations in Reliance
1. The competition authorities of the Parties may agree that the competition authorities of the Requesting Party will defer or suspend pending or contemplated enforcement activities during the pendency of enforcement activities of the Requested Party.
2. The competition authorities of a Requesting Party will normally defer or suspend their own enforcement activities in favor of enforcement activities by the competition authorities of the Requested Party when the following conditions are satisfied:
When the above conditions are satisfied, a Requesting Party which chooses not to defer or suspend its enforcement activities shall inform the competition authorities of the Requested Party of its reasons.
3. The competition authorities of the Requesting Party may defer or suspend their own enforcement activities if fewer than all of the conditions set out in paragraph 2 are satisfied.
4. Nothing in this Agreement precludes the competition authorities of a Requesting Party that choose to defer or suspend independent enforcement activities from later initiating or reinstituting such activities. In such circumstances, the competition authorities of the Requesting Party will promptly inform the competition authorities of the Requested Party of their intentions and reasons. If the competition authorities of the Requested Party continue with their own investigation, the competition authorities of the two Parties shall consider coordination of their respective investigations under the criteria and procedures of Article IV of the 1995 Agreement.
Confidentiality and Use of Information
Where pursuant to this Agreement the competition authorities of one Party provide information to the competition authorities of the other Party for the purpose of implementing this Agreement, that information shall be used by the latter competition authorities only for that purpose. However, the competition authorities that provided the information may consent to another use, on condition that where confidential information has been provided pursuant to Article IV.2 (c) (iii) on the basis of the consent of the source concerned, that source also agrees to the other use. Disclosure of such information shall be governed by the provisions of Article X of the 1995 Agreement.
Relationship to the 1995 Agreement
This Agreement shall supplement and be interpreted consistently with the 1995 Agreement, which remains fully in force.
Nothing in this Agreement shall be interpreted in a manner inconsistent with the existing laws, or as requiring any c hange in the laws, of the Parties or of their respective Provinces or States.
Entry Into Force and Termination
1. This Agreement shall enter into force upon signature.
2. This Agreement shall remain in force until 60 days after the date on which either Party notifies the other Party in writing that it wishes to terminate the Agreement.
IN WITNESS WHEREOF, the undersigned, being duly authorized, have signed this Agreement.
DONE in duplicate at Washington, on this fifth day of October, 2004, in the English and French languages, each text being equally authentic.
FOR THE GOVERNMENT OF
Date: October 5, 2004
Date: October 5, 2004
FOR THE GOVERNMENT OF
Date: October 5, 2004