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Agreement between the Government of Canada and the ITER International Fusion Energy Organization for Cooperation in the Peaceful Uses of Fusion Energy

Preamble

The Government of Canada (“Canada”) and the ITER International Fusion Energy Organization (“ITER Organization”), hereinafter referred to as the “Parties”;

Desiring to promote and strengthen cooperation between the Parties;

Mindful of the potential of fusion energy as a virtually limitless source of low carbon energy and the importance of scientific and technological progress in the fusion area;

Recognizing the Agreement on the Establishment of the ITER International Fusion Energy Organization for the Joint Implementation of the ITER Project, done at Paris on 21 November 2006 (“ITER Agreement”) and the commitment of the ITER Organization and its Members to use any material, equipment or technology generated or received pursuant to the ITER Agreement solely for peaceful purposes;

Having regards to the Memorandum of Understanding between the Government of Canada and the ITER International Fusion Energy Organization, signed at Paris on 17 April 2018 and recognizing the cooperation foreseen under that arrangement;

Recognizing that Canada is a non-nuclear-weapon State Party to the Treaty on the Non‑Proliferation of Nuclear Weapons, done at London, Moscow and Washington on 1 July 1968 (“NPT”) and, as such, has undertaken not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices;

Having regards to the Agreement on the Privileges and Immunities of the ITER International Fusion Energy Organization for the Joint Implementation of the ITER Project, done at Paris on 21 November 2006;

Having regards to the Agreement between the Government of the French Republic and the ITER International Fusion Energy Organization regarding the Headquarters of the ITER Organization and the privileges and Immunities of the ITER Organization on French Territory, done at Saint-Paul-Lez-Durance (Cadarache) on 7 November 2007;

Intending, therefore, to cooperate with one another to these ends;

Have agreed as follows:

Article 1

Definitions

  1. For the purpose of this Agreement:

“competent authority” means the ITER Organization and for Canada, the Canadian Nuclear Safety Commission;

“cooperative activity” means any activity carried out under this Agreement;

“equipment” means equipment, plants, or facilities for the production, recovery, extraction, concentration, handling, or storage of tritium;

“French Regulators” means the French Nuclear Safety Authority (ASN) and the French Defense and Security High Official attached to the French Ministry in charge of Ecological and Inclusive Transition (Haut Fonctionnaire de Defense et Sécurité du Ministère de la Transition Ecologique et Solidaire or HFDS);

“ITER Member” means a party that has signed the ITER Agreement;

“participant” means any person, legal entity, research institute or any other body and undertaking participating in a cooperative activity; 

“technology” means technical data, software or assistance that the supplier Party has designated, prior to transfer, as being relevant in terms of non-proliferation and important for the design, production or operation of equipment for the processing of tritium and (i) includes, but is not limited to, technical drawings, photographic negatives and prints, recordings, design data and technical and operating manuals; but (ii) excludes data available to the public; and

“tritium” means compounds and mixtures that contain tritium in which the ratio of tritium to hydrogen by atoms is greater than 1 part per 1000.

Article 2

Scope of Cooperation

  1. The cooperation contemplated under this Agreement relates to fusion energy for peaceful purposes and may include, but is not limited to the supply of tritium; the supply of related equipment; and the supply of related technology.
  2. The Parties shall encourage and facilitate cooperation between participants on matters within the scope of this Agreement.
  3. The Parties shall make efforts to facilitate exchanges of experts, technicians and specialists related to activities under this Agreement. 
  4. The Parties shall take all reasonable precautions to preserve the confidentiality of information, including commercial and industrial secrets, transferred between participants. 
  5. A Party shall not use this Agreement to secure commercial advantage or to interfere with the commercial relations of the other Party. 
  6. The Parties shall cooperate under this Agreement in accordance with the applicable laws, regulations, and policies of each Party.
  7. This Agreement does not prejudice bilateral cooperation agreements between the Government of Canada and an ITER Member relating to the peaceful use of nuclear or fusion energy.

Article 3

Items Subject to this Agreement

  1. The following items are subject to this Agreement unless otherwise jointly determined by the Parties in writing:

    (a) tritium transferred between the Parties, whether directly or through a third party;

    (b) equipment and technology transferred between the Parties, whether directly or through a third party, that has been designated by the supplier, prior to transfer, as being relevant in terms of non-proliferation;

    (c) equipment and technology produced, designed, derived, fabricated, or obtained on the basis of, or by the use of equipment or technology subject to this Agreement (supplied under paragraph (b));

    (d) tritium that is produced, recovered, extracted or concentrated by the use of any tritium supplied under paragraph (a) or equipment subject to this Agreement (supplied under paragraph (b) or derived by paragraph (c)).

  1. Items other than those covered by paragraph 1 are subject to this Agreement when the Parties have so decided in writing. 
  2. Prior to any transfer between the Parties, whether directly or through a third party, of tritium, equipment or technology subject to this Agreement (supplied under paragraph 1.(a) and (b) respectively), the Parties shall exchange written notifications.

Article 4

Retransfers

  1. A Party shall obtain the written consent of the other Party prior to the retransfer of any tritium, equipment or technology subject to this Agreement to a third party.
  2. Canada grants consent to the retransfer of technology to the French Regulators, provided that the technology is required for regulatory purposes and that procedures acceptable to both Parties related to such retransfers are established.

Article 5

Peaceful Uses

  1. Cooperation under this Agreement is exclusively for peaceful purposes.
  2. Tritium, equipment and technology subject to this Agreement must not be used to manufacture, develop or otherwise acquire nuclear weapons or other nuclear explosive devices.
  3. Tritium, equipment and technology subject to this Agreement are only for use in relation to fusion by the ITER Organization in the ITER facilities unless prior written consent of the other Party is obtained for another peaceful use.

Article 6

Physical Protection

The Parties shall apply appropriate measures to ensure the physical protection of tritium, equipment and technology subject to this Agreement, to protect against theft and unauthorized use.

Article 7

Termination of Obligations

  1. Tritium and equipment remains subject to this Agreement until:

    (a) Retransferred to a third party in accordance with Article 4; or

    (b) Otherwise jointly determined in writing between the Parties.

  1. Technology remains subject to this Agreement until otherwise jointly determined in writing between the Parties.

Article 8

Administrative Arrangements

  1. The Parties shall, through their respective competent authorities, establish an administrative arrangement to facilitate the effective implementation of this Agreement. This arrangement includes the procedures necessary for the competent authorities to implement and administer this Agreement.
  2. Each Party shall, through their respective competent authorities, prepare and submit to the other Party an annual inventory list of all items subject to this Agreement.
  3. The competent authorities may consult at any time, at the request of either competent authority, to ensure the effective implementation and administration of this Agreement.

Article 9

Consultations

  1. The Parties shall consult at any time, at the request of either Party, to ensure the effective fulfilment of the obligations of this Agreement.
  2. The Parties shall establish a Coordination Committee to notify each other about possibilities of cooperative activities and to review ongoing collaboration. The Coordination Committee meets annually, by any means, or at other times as determined by the Parties.
  3. Each Party shall nominate a contact person to act on its behalf during periods between meetings of the Coordination Committee in the day to day management of cooperative activities.

Article 10

Confidentiality of Information

The Parties shall take all appropriate measures in accordance with applicable laws, regulations, and policies to preserve the confidentiality of commercial and other confidential information received as a result of the implementation of this Agreement.

Article 11

Intellectual Property

The ownership of intellectual property supplied or generated under the framework of cooperation provided by this Agreement must be defined on a case-by-case basis in any specific agreements or contracts associated with this Agreement, with the understanding that the ITER Organization is subject to Article 10 of the ITER Agreement and its Information and Intellectual Property Annex.

Article 12

Settlement of Disputes

  1. The Parties shall promptly discuss any dispute between them concerning the interpretation or implementation of this Agreement with a view to resolving that dispute by negotiations. 
  2. In the case of a dispute arising out of or relating to the interpretation or implementation of this Agreement that has not been settled pursuant to negotiations, either Party may invite the other to conciliate the dispute under the Permanent Court of Arbitration (PCA) Optional Conciliation Rules.
  3. Any dispute arising out of the interpretation or implementation of this Agreement that is not settled by negotiation or conciliation, or as may otherwise be decided between the Parties, is settled by final and binding arbitration in accordance with the PCA Arbitration Rules 2012.
  4. Three arbitrators are appointed in line with Article 7 of the PCA Arbitration Rules 2012.
  5. English is the language to be used in the arbitral proceeding.
  6. The Hague is the place of arbitration.

Article 13

Privileges and Immunities

Nothing in this Agreement shall constitute a renunciation on the part of the ITER Organization to its privileges and immunities pursuant to the Agreement on the Privileges and Immunities of the ITER International Fusion Energy Organization for the Joint Implementation of the ITER Project, done at Paris on 21 November 2006.

Article 14

Entry Into Force, Amendment, Duration, and Termination

  1. This Agreement enters into force on the date of the last note of an exchange of notes in which the Parties notify each other of the completion of their internal procedures necessary for the entry into force of this Agreement.
  2. This Agreement may be amended at any time by written agreement between the Parties.  Any amendment to this Agreement enters into force in accordance with paragraph 1.
  3. This Agreement remains in force for an initial period of twenty (20) years. If neither Party has notified the other Party of its intention to terminate this Agreement at least six (6) months prior to the expiry of that period, this Agreement continues to be in force for additional periods of five (5) years unless, at least six (6) months before the expiration of any such additional period, a Party notifies the other Party of its intention to terminate this Agreement.
  4. Notwithstanding termination of this Agreement, the obligations contained in Articles 1, 2(4), 3, 4, 5, 6, 7, 8, 9, 10, 11, 13 and 14 of this Agreement remain in force until otherwise agreed by the Parties.
  5. At least five (5) years before the expiry of the ITER Agreement, ITER Organization shall confirm to the Government of Canada the foreseen end-date of the ITER Agreement and the foreseen hand-over date to the Government of the French Republic of the ITER facilities in order for the Government of Canada to explore appropriate modalities for possible transfer of obligations to the Government of the French Republic, in a timely manner.

In witness whereof the undersigned, being duly authorized thereto by their respective Government and Organization, have signed this Agreement.

Done in duplicate at Ottawa and Saint-Paul-lez-Durance, this 15th day of October 2020 in the English and French languages, each version being equally authentic.

Dan Costello
For the Government of Canada

Bernard Bigot
For the ITER International Fusion Energy Organization


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