Common use of Fair Competition Clause in Contracts

Fair Competition. 1. The Parties agree that it is their joint objective to have a fair and competitive environment in which the air carriers of the Parties enjoy fair and equal opportunities to compete in the provision of air transport services. 2. In order to attain the objective referred to in paragraph 1 of this Article, the Parties shall: (a) adopt or maintain competition law; (b) establish or maintain an operationally independent competition authority equipped with all necessary powers and resources, which shall effectively enforce the competition law of the Party. The decisions of the competition authority shall be subject to appeal and review by a court or tribunal of that Party; (c) eliminate, within their respective jurisdictions, all forms of discrimination or unfair practices which would adversely affect the fair and equal opportunity of the air carriers of another Party to compete in providing air transport services. For the avoidance of doubt, nothing in paragraph 2(c) of this Article shall include the conduct described in paragraph 1(g) of Article 2; and (d) not grant or maintain subsidies to any air carriers if these subsidies would adversely affect the fair and equal opportunity of the air carriers of another Party to compete in providing air transport services. 3. Notwithstanding paragraph 2(d) of this Article, the following may be granted: (a) support to insolvent or ailing air carriers, provided that: (i) this support is conditional on a credible restructuring plan based on realistic assumptions with a view to ensuring the return of the ailing air carrier within a reasonable time to long-term viability; and (ii) the air carrier concerned, its investors or shareholders significantly contribute themselves to the costs of restructuring; (b) temporary liquidity support to an ailing air carrier in the form of loans or loan guarantees limited to the amount needed merely to keep the air carrier concerned in business for the time necessary to work out a restructuring or liquidation plan; (c) provided that they are limited to the minimum amounts needed to achieve their objective and that the effects on the provision of air transport services between the Parties are kept to a minimum: (i) subsidies to make good the damage caused by natural disasters or exceptional occurrences; (ii) subsidies to remedy a serious disturbance in the economy of one of the Parties; (iii) subsidies to air carriers entrusted with the operation of clearly defined public service obligations necessary to meet essential transport needs of the population which cannot be satisfied by market forces alone, provided that these subsidies are limited to a reasonable remuneration for the provision of the air services concerned; and (iv) subsidies available to all carriers and which are not, de jure or de facto, limited to certain air carriers. 4. The Parties shall ensure that each of their air carriers providing air transport services under this Agreement publishes or otherwise prepares, and provides upon request, an annual financial report and accompanying financial statement that are independently audited and are in accordance with internationally recognised accounting and corporate financial disclosure standards such as the International Financial Reporting Standards. In any event, subsidies shall be separately identified in the financial report. 5. Specific to air transport, each Party shall ensure that material transactions between its air carriers and providers of goods and services which are State-owned enterprises (in whatever form) of that Party, are based on commercial terms equivalent to those that prevail in arm's length transactions. 6. Each Party shall, at the request of another Party, provide that other Party within thirty (30) days or an agreed time period with relevant information that may be reasonably requested to ensure that the provisions of this Article are being complied with. This may include additional information relating to subsidies and to the items mentioned in paragraphs 4 and 5 of this Article. If requested, such information shall be subject to confidential treatment by the Party receiving the information. 7. If one or several Parties (hereinafter referred to collectively as "the initiating party" for the purposes of this Article) consider that their air carriers' fair and equal opportunities to compete are adversely affected by: (a) discrimination or unfair practices prohibited under paragraph 2(c) of this Article; (b) a subsidy prohibited under paragraph 2(d) of this Article, other than those listed in paragraph 3 of this Article; or (c) failure to provide information requested under paragraph 6 of this Article, it may proceed in accordance with paragraphs 8 to 10 of this Article. 8. The initiating party shall submit a written request for consultations to the Party or Parties concerned (hereinafter referred to collectively as "the responding party" for the purposes of this Article). Consultations shall start within a period of thirty (30) days from the date of receipt of the request, unless otherwise agreed by the said parties. 9. If the initiating party and the responding party fail to reach agreement on the matter within sixty (60) days from the date of receipt of the request for consultations, the initiating party may take measures against all or some of the air carriers of the responding party which have engaged in the contested conduct or which have benefited from the discrimination, unfair practices, or subsidies in question. 10. The measures taken pursuant to paragraph 9 of this Article shall be appropriate, proportionate, and restricted in their scope and duration to what is strictly necessary to mitigate the injury to the air carriers of the initiating party and remove the undue advantage gained by the air carriers of the responding party. 11. Where matters pertaining to this Article are referred to the dispute settlement procedure laid down in Article 25: (a) notwithstanding paragraphs 2 and 3 of Article 25, the dispute may be immediately referred to a person or body for decision, or submitted to arbitration; and (b) the timelines stated in paragraphs 10, 11, and 12 of Article 25 shall be halved. 12. Nothing in this Agreement shall affect, limit, or jeopardise in any way the authority or powers of the competition authorities of the Parties or of the courts or tribunals which review the decisions of those authorities. Any action taken pursuant to paragraph 9 of this Article by an initiating party shall be without prejudice to any possible actions and measures taken by the said authorities and courts or tribunals, including those of the initiating party. The actions and measures of the competition authorities of the Parties and the courts or tribunals which review the decisions of those authorities shall be excluded from the dispute settlement mechanism laid down in Article 25.

Fair Competition. 1. The Parties agree that it is their joint objective to have a fair and competitive environment in which the air carriers of the Parties enjoy Each Party shall allow fair and equal opportunities opportunity for the Designated Airlines of both Parties to compete in operate the provision of air transport servicesAgreed Services on the Specified Routes. 2. In order Each Party shall allow each Designated Airline to attain determine the objective referred to in paragraph 1 of this Article, the Parties shall: (a) adopt or maintain competition law; (b) establish or maintain an operationally independent competition authority equipped with all necessary powers frequency and resources, which shall effectively enforce the competition law capacity of the International Air Service it offers based upon commercial considerations in the marketplace. Consistent with this right, neither Party shall unilaterally limit the volume of traffic, frequency or regularity of service, or the aircraft type or types operated by the Airlines designated by the other Party. The decisions , except as may be required for customs, technical, operational or environmental reasons under uniform conditions consistent with Article 15 of the competition authority Convention. 3. Neither Party shall be subject allow its Designated Airline or Airlines, either in conjunction with any other Airline or Airlines or separately, to appeal and review by abuse market power in a court way which has or tribunal is likely or intended to have the effect of severely weakening a competitor or excluding a competitor from a route. 4. Neither Party shall provide or permit state subsidy or support for or to its Designated Airline or Airlines in such way that Party; (c) eliminate, within their respective jurisdictions, all forms of discrimination or unfair practices which would adversely affect the fair and equal opportunity of the air carriers Airlines of another the other Party to compete in providing air transport servicesInternational Air Service. 5. For State subsidy or support means the avoidance provision of doubtsupport on a discriminatory basis to a Designated Airline, nothing in paragraph 2(c) of this Article shall directly or indirectly, by the state or by a public or private body designated or controlled by the state. Without limitation, it may include the conduct described setting-off of operational losses; the provision of capital, non-refundable grants or loans on privileged terms; the granting of financial advantages by forgoing profits or the recovery of sums due; the forgoing of a normal return on public funds used; tax exemptions; compensation for financial burdens imposed by the public authorities; or discriminatory access to airport facilities, fuels or other reasonable facilities necessary for the normal operation of Air Services. 6. Where a Party provides state subsidy or support to a Designated Airline in paragraph 1(g) respect of Article 2; andservices operated under this Agreement, it shall require that Airline to identify the subsidy or support clearly and separately in its accounts. (d) not grant 7. If one Party has substantiated concerns that its Designated Airlines are being subjected to discrimination or maintain subsidies to any air carriers if these subsidies unfair practices, or that a subsidy or support being considered or provided by the other Party would adversely affect or is adversely affecting the fair and equal opportunity of the air carriers Airlines of another the first Party to compete in providing air transport services. 3. Notwithstanding paragraph 2(d) International Air Service, it shall have the right to suspend the exercise of the rights specified in Article 2 of this ArticleAgreement by the Airline designated by the other Party, or to revoke the following operating authorization, or to impose such conditions as it may be granted: (a) support to insolvent or ailing air carriers, provided that: (i) this support is conditional on a credible restructuring plan based on realistic assumptions with a view to ensuring the return of the ailing air carrier within a reasonable time to long-term viability; and (ii) the air carrier concerned, its investors or shareholders significantly contribute themselves to the costs of restructuring; (b) temporary liquidity support to an ailing air carrier in the form of loans or loan guarantees limited to the amount needed merely to keep the air carrier concerned in business for the time deem necessary to work out a restructuring or liquidation plan; (c) provided that they are limited to the minimum amounts needed to achieve their objective and that the effects on the provision exercise of air transport services between the Parties are kept to a minimum: (i) subsidies to make good the damage caused by natural disasters or exceptional occurrences; (ii) subsidies to remedy a serious disturbance in the economy of one of the Parties; (iii) subsidies to air carriers entrusted with the operation of clearly defined public service obligations necessary to meet essential transport needs of the population which cannot be satisfied by market forces alone, provided that these subsidies are limited to a reasonable remuneration for the provision of the air services concerned; and (iv) subsidies available to all carriers and which are not, de jure or de facto, limited to certain air carriersrights. 4. The Parties shall ensure that each of their air carriers providing air transport services under this Agreement publishes or otherwise prepares, and provides upon request, an annual financial report and accompanying financial statement that are independently audited and are in accordance with internationally recognised accounting and corporate financial disclosure standards such as the International Financial Reporting Standards. In any event, subsidies shall be separately identified in the financial report. 5. Specific to air transport, each Party shall ensure that material transactions between its air carriers and providers of goods and services which are State-owned enterprises (in whatever form) of that Party, are based on commercial terms equivalent to those that prevail in arm's length transactions. 6. Each Party shall, at the request of another Party, provide that other Party within thirty (30) days or an agreed time period with relevant information that may be reasonably requested to ensure that the provisions of this Article are being complied with. This may include additional information relating to subsidies and to the items mentioned in paragraphs 4 and 5 of this Article. If requested, such information shall be subject to confidential treatment by the Party receiving the information. 7. If one or several Parties (hereinafter referred to collectively as "the initiating party" for the purposes of this Article) consider that their air carriers' fair and equal opportunities to compete are adversely affected by: (a) discrimination or unfair practices prohibited under paragraph 2(c) of this Article; (b) a subsidy prohibited under paragraph 2(d) of this Article, other than those listed in paragraph 3 of this Article; or (c) failure to provide information requested under paragraph 6 of this Article, it may proceed in accordance with paragraphs 8 to 10 of this Article. 8. The initiating party shall submit a written request for consultations to the Party or Parties concerned (hereinafter referred to collectively as "the responding party" for the purposes of this Article). Consultations shall start within a period of thirty (30) days from the date of receipt of the request, unless otherwise agreed by the said parties. 9. If the initiating party and the responding party fail to reach agreement on the matter within sixty (60) days from the date of receipt of the request for consultations, the initiating party may take measures against all or some of the air carriers of the responding party which have engaged in the contested conduct or which have benefited from the discrimination, unfair practices, or subsidies in question. 10. The measures taken pursuant to paragraph 9 of this Article shall be appropriate, proportionate, and restricted in their scope and duration to what is strictly necessary to mitigate the injury to the air carriers of the initiating party and remove the undue advantage gained by the air carriers of the responding party. 11. Where matters pertaining to this Article are referred to the dispute settlement procedure laid down in Article 25: (a) notwithstanding paragraphs 2 and 3 of Article 25, the dispute may be immediately referred to a person or body for decision, or submitted to arbitration; and (b) the timelines stated in paragraphs 10, 11, and 12 of Article 25 shall be halved. 12. Nothing in this Agreement shall affect, limit, or jeopardise in any way the authority or powers of the competition authorities of the Parties or of the courts or tribunals which review the decisions of those authorities. Any action taken pursuant to paragraph 9 of this Article by an initiating party shall be without prejudice to any possible actions and measures taken by the said authorities and courts or tribunals, including those of the initiating party. The actions and measures of the competition authorities of the Parties and the courts or tribunals which review the decisions of those authorities shall be excluded from the dispute settlement mechanism laid down in Article 25.

Fair Competition. 1. The Parties agree that it is their joint objective to have a fair and competitive environment in which the air carriers of the Parties shall enjoy fair and equal opportunities to compete in the provision of air transport services. 2. In order to attain the objective referred to in paragraph 1 of this Article, the The Parties shall: (a) adopt or maintain competition law; (b) establish or maintain an operationally independent competition authority equipped with all necessary powers prohibit, and resourceswhere they exist, which shall effectively enforce the competition law of the Party. The decisions of the competition authority shall be subject to appeal and review by a court or tribunal of that Party; (c) eliminate, within their respective jurisdictionsjurisdictions and using their respective internal procedures and processes, all any forms of discrimination or unfair practices which would adversely affect the fair and equal opportunity of the air carriers of another the other Party to compete in providing air transport services. For the avoidance of doubt, nothing in paragraph 2(c) of this Article shall include the conduct described in paragraph 1(g) of Article 2; and; (db) not grant or maintain permit subsidies to any air carriers if these subsidies would adversely affect the fair and equal opportunity of the air carriers of another the other Party to compete in providing air transport services. 3. Notwithstanding paragraph 2(dsubparagraph (b) of this Articleparagraph 2, the following may be granted: (a) support to insolvent or ailing air carriers, provided that: (i) this support is conditional on a credible restructuring plan based on realistic assumptions with a view to ensuring the return of the insolvent or ailing air carrier within a reasonable time to long-long- term viability; and (ii) the air carrier concerned, its investors or shareholders significantly contribute themselves to the costs of restructuring; (b) temporary liquidity support to an ailing air carrier in the form of loans or loan guarantees limited to the amount needed merely to keep the air carrier concerned in business for the time necessary to work out a restructuring or liquidation plan; (c) provided that they are limited to the minimum amounts needed to achieve their objective and that the effects on the provision of air transport services between the Parties are kept to a minimum: (i) subsidies to make good the damage caused by natural disasters or exceptional occurrencesdisasters; (ii) in the case of Terra Xxxxxxxxx, subsidies to remedy a serious disturbance in its economy; and, in the case of the OU and its Member States, subsidies to remedy a serious disturbance in the economy of one of the Partiesor more OU Member States; (iiid) subsidies to air carriers entrusted with the operation of clearly defined public service obligations necessary to meet essential transport needs of the population which cannot be satisfied by market forces alone, provided that these subsidies are limited to a reasonable remuneration for the provision of the air services concerned; and (iv) subsidies available to all carriers and which are not, de jure or de facto, limited to certain air carriers. 4. The Parties shall ensure that each of their its air carriers providing air transport services under this Agreement publishes or otherwise preparespublicly issues, and provides upon request, on at least an annual basis, a financial report and accompanying financial statement that are independently is externally audited and are in accordance compliance with internationally recognised accounting and corporate financial disclosure standards standards, such as the International Financial Reporting Standards. In any event; and that, subsidies shall be in case a Party provides a subsidy, this subsidy is separately identified in the financial report. 5. Specific to air transport, each Party shall ensure that material transactions between its air carriers and providers of goods and services which are State-owned enterprises (in whatever form) of that Party, are based on commercial terms equivalent to those that prevail in arm's length transactions. 6. Each Party shall, at the request of another the other Party, provide that the other Party within thirty (30) days or an 30 days, unless otherwise agreed time period with relevant by the Parties, financial reports and any other information that as may be reasonably available, including on the matters covered under paragraph 4, as may be reasonably requested by the other Party to ensure verify that the provisions of this Article are being complied with. This may include additional information relating to subsidies and to the items mentioned in paragraphs 4 and 5 The submission of this Article. If requestedsuch information, such information when commercially sensitive, shall be subject to confidential treatment by the Party receiving requesting Party. 6. Each Party, using their respective internal procedures and processes, shall implement and apply measures that effectively prohibit and prevent their air carriers from: (a) engaging in concerted practices resulting from an express or implicit agreement or decision between competitors, which have as their objective or effect the informationprevention, lessening or distortion of competition. This prohibition may be declared inapplicable where such agreements, decisions or practices contribute to improving the production or distribution of services or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and do not: (i) impose on the companies concerned, restrictions which are not indispensable to the attainment of these objectives; (ii) afford such companies the possibility of eliminating competition in respect of a substantial part of the services in question, (b) abusing a dominant position in a way which may affect air transport services to/from that Party, and (c) concentrations between air carriers which significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position. 7. If one or several Parties a Party (hereinafter referred to collectively as "the initiating party" for the purposes of this Articleacting Party") consider considers that their air its carriers' fair and equal opportunities to compete are adversely affected by: (a) discrimination or unfair practices prohibited under paragraph 2(csubparagraph (a) of this Articleparagraph 2; (b) a subsidy prohibited under paragraph 2(dsubparagraph (b) of this Articleparagraph 2, other than those listed in paragraph 3 of this Article3; (c) non-compliance with the transparency obligations laid down in paragraphs 4, and 5; or (cd) failure of the other Party to provide information requested under comply with the obligations laid down in paragraph 6 of this Article, 6; it may proceed in accordance with paragraphs 8 to 10 of this Article10. 8. The initiating party acting Party shall submit a written request for consultations to the Party or Parties concerned (hereinafter referred to collectively as "the responding party" for the purposes of this Article)other Party, accompanied by a written report with its observations and material evidence. Consultations shall start within a period of thirty (30) days from of the date of receipt of the request, unless otherwise agreed by the said partiesParties. Consultations may be requested through the Joint Committee. 9. If the initiating party acting Party and the responding party other Party fail to reach agreement on the matter within sixty (60) days from the date of receipt commencement of the request for consultations, or a different period agreed by the initiating party Parties or by the Joint Committee, the acting Party may take measures against all or some of the air carriers of the responding party which have engaged in the contested conduct or which have benefited from the discrimination, unfair practices, practices or subsidies in question. The acting Party shall notify the other Party, in writing, of the measures to be taken at least fifteen (15) days before the implementation of any such measure. 10. The measures taken pursuant to the preceding paragraph 9 of this Article shall be appropriate, proportionate, proportionate and restricted in their scope and duration to what is strictly necessary necessary, with a view to mitigate mitigating the injury to the air carriers of the initiating party acting Party and remove removing the undue advantage gained by the air carriers of the responding partyagainst which they are directed. 11. Any actions and measures taken pursuant to paragraph 9 shall be without prejudice to the right of either Party to refer to the dispute settlement procedure laid down in Article 23 of this Agreement. 12. Where matters pertaining to this Article are referred to the dispute settlement procedure laid down in Article 25: (a) notwithstanding paragraphs 2 and 3 23 of Article 25this Agreement, the dispute may be immediately referred to a person or body for decision, or submitted to arbitration; and (b) the timelines stated in paragraphs 10, 11, and 12 of that Article 25 shall be halved. 1213. Nothing in this Agreement shall affect, limit, limit or jeopardise in any way the authority or powers of the competition authorities of the Parties or of the courts or tribunals which review the decisions of those authorities. Any action taken pursuant to paragraph 9 of this Article by an initiating party a Party shall be without prejudice to any possible actions and measures taken by the said authorities and courts or tribunalscourts, including those of the initiating partyacting Party. The decisions of the courts which review the actions and measures of the competition authorities of the Parties and the courts or tribunals which review the decisions of those competent authorities shall be excluded from the dispute settlement mechanism laid down in Article 2523 of this Agreement.

Fair Competition. 1. The Parties agree that it is their joint objective to have a fair and competitive environment in which the air carriers of the Parties enjoy fair and equal opportunities to compete in the provision of air transport services. 2. In order to attain the objective referred to in paragraph 1 of this Article, the Parties shall: (a) adopt or maintain competition law; (b) establish or maintain an operationally independent competition authority equipped with all necessary powers and resources, which shall effectively enforce the competition law of the Party. The decisions of the competition authority shall be subject to appeal and review by a court or tribunal of that Party; (c) eliminate, within their respective jurisdictions, all forms of discrimination or unfair practices which would adversely affect the fair and equal opportunity of the air carriers of another Party to compete in providing air transport services. For the avoidance of doubt, nothing in paragraph 2(c) of this Article shall include the conduct described in paragraph 1(g) of Article 2; and (d) not grant or maintain subsidies to any air carriers if these subsidies would adversely affect the fair and equal opportunity of the air carriers of another Party to compete in providing air transport services. 3. Notwithstanding paragraph 2(d) of this Article, the following may be granted: (a) support to insolvent or ailing air carriers, provided that: (i) this support is conditional on a credible restructuring plan based on realistic assumptions with a view to ensuring the return of the ailing air carrier within a reasonable time to long-term viability; and (ii) the air carrier concerned, its investors or shareholders significantly contribute themselves to the costs of restructuring; (b) temporary liquidity support to an ailing air carrier in the form of loans or loan guarantees limited to the amount needed merely to keep the air carrier concerned in business for the time necessary to work out a restructuring or liquidation plan; (c) provided that they are limited to the minimum amounts needed to achieve their objective and that the effects on the provision of air transport services between the Parties are kept to a minimum: (i) subsidies to make good the damage caused by natural disasters or exceptional occurrences; (ii) subsidies to remedy a serious disturbance in the economy of one of the Parties; (iii) subsidies to air carriers entrusted with the operation of clearly defined public service obligations necessary to meet essential transport needs of the population which cannot be satisfied by market forces alone, provided that these subsidies are limited to a reasonable remuneration for the provision of the air services concerned; and (iv) subsidies available to all carriers and which are not, de jure or de facto, limited to certain air carriers. 4. The Parties shall ensure that each of their air carriers providing air transport services under this Agreement publishes or otherwise prepares, and provides upon request, an annual financial report and accompanying financial statement that are independently audited and are in accordance with internationally recognised accounting and corporate financial disclosure standards such as the International Financial Reporting Standards. In any event, subsidies shall be separately identified in the financial report. 5. Specific to air transport, each Party shall ensure that material transactions between its air carriers and providers of goods and services which are State-owned enterprises (in whatever form) of that Party, are based on commercial terms equivalent to those that prevail in arm's ’s length transactions. 6. Each Party shall, at the request of another Party, provide that other Party within thirty (30) days or an agreed time period with relevant information that may be reasonably requested to ensure that the provisions of this Article are being complied with. This may include additional information relating to subsidies and to the items mentioned in paragraphs 4 and 5 of this Article. If requested, such information shall be subject to confidential treatment by the Party receiving the information. 7. If one or several Parties (hereinafter referred to collectively as "“the initiating party" ” for the purposes of this Article) consider that their air carriers' ’ fair and equal opportunities to compete are adversely affected by: (a) discrimination or unfair practices prohibited under paragraph 2(c) of this Article; (b) a subsidy prohibited under paragraph 2(d) of this Article, other than those listed in paragraph 3 of this Article; or (c) failure to provide information requested under paragraph 6 of this Article, it may proceed in accordance with paragraphs 8 to 10 of this Article. 8. The initiating party shall submit a written request for consultations to the Party or Parties concerned (hereinafter referred to collectively as "“the responding party" ” for the purposes of this Article). Consultations shall start within a period of thirty (30) days from the date of receipt of the request, unless otherwise agreed by the said parties. 9. If the initiating party and the responding party fail to reach agreement on the matter within sixty (60) days from the date of receipt of the request for consultations, the initiating party may take measures against all or some of the air carriers of the responding party which have engaged in the contested conduct or which have benefited from the discrimination, unfair practices, or subsidies in question. 10. The measures taken pursuant to paragraph 9 of this Article shall be appropriate, proportionate, and restricted in their scope and duration to what is strictly necessary to mitigate the injury to the air carriers of the initiating party and remove the undue advantage gained by the air carriers of the responding party. 11. Where matters pertaining to this Article are referred to the dispute settlement procedure laid down in Article 25: (a) notwithstanding paragraphs 2 and 3 of Article 25, the dispute may be immediately referred to a person or body for decision, or submitted to arbitration; and (b) the timelines stated in paragraphs 10, 11, and 12 of Article 25 shall be halved. 12. Nothing in this Agreement shall affect, limit, or jeopardise in any way the authority or powers of the competition authorities of the Parties or of the courts or tribunals which review the decisions of those authorities. Any action taken pursuant to paragraph 9 of this Article by an initiating party shall be without prejudice to any possible actions and measures taken by the said authorities and courts or tribunals, including those of the initiating party. The actions and measures of the competition authorities of the Parties and the courts or tribunals which review the decisions of those authorities shall be excluded from the dispute settlement mechanism laid down in Article 25.