5.—(1) A liner shipping agreement is, in respect of a market, exempt from the section 34 prohibition if —| (a) | the parties to the agreement do not exceed the market share limit in the market; | | (b) | the agreement allows liner operators —| (i) | to offer, on the basis of individual confidential contracting, their own service arrangements; and | | (ii) | to withdraw from the agreement on giving any agreed period of notice without financial or other penalty such as, in particular, an obligation to cease providing liner shipping services in a market, whether or not coupled with the condition that such activity may be resumed only after a certain period has elapsed; and |
| | (c) | the agreement does not require any of the following activities to be undertaken by the liner operators:| (i) | mandatory adherence to a tariff; | | (ii) | the disclosure, whether to other liner operators or otherwise, of confidential information concerning service arrangements. |
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(2) Where the parties to a liner shipping agreement exceed the market share limit in a market, the agreement is, in respect of the market, exempt from the section 34 prohibition if —| (a) | the agreement satisfies the conditions specified in sub-paragraph (1)(b) and (c); | | (b) | subject to sub-paragraph (3), the parties file with the Commission, in such mode and manner and within such period of time as may be specified by the Commission —| (i) | a copy of the agreement and any variation or amendment thereto; and | | (ii) | where any variation or amendment is made to the agreement from time to time subsequent to the filing of the documents referred to in sub-paragraph (i) —| (A) | such variation or amendment; and | | (B) | the agreement and all preceding variations or amendments thereto; |
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| | (c) | the parties make available upon request to the Commission, in such mode and manner and within such period of time as may be specified by the Commission, documents and details relating to —| (i) | any tariff; | | (ii) | the structure and service level of the liner shipping services; and | | (iii) | other aspects of the liner shipping services, |
| under the agreement relevant to the market; |
| | (d) | the parties make available to transport users, within such period of time as may be specified by the Commission, information concerning —| (i) | any tariff; and | | (ii) | the structure and service level of the liner shipping services, |
| under the agreement relevant to the market, as the Commission may specify — |
| (A) | by allowing for the examination of documents at the offices in Singapore of the parties or their agents; or | | (B) | at a publicly available internet website, |
| and, in any event, upon request at a reasonable cost in paper or electronic form; and |
| | (e) | the parties notify —| (i) | the Commission of the details of any variation or amendment made from time to time to the documents and details referred to in sub-paragraph (c); and | | (ii) | transport users of the details of any variation or amendment made from time to time to the information referred to in sub-paragraph (d), |
| in such mode and manner and within such period of time as may be specified by the Commission. |
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| (3) For the purpose of sub-paragraph (2)(b), where a liner shipping agreement, or any variation or amendment thereto, or any part of such agreement, variation or amendment, is not in writing, the parties to the liner shipping agreement shall file a memorandum providing a full description of the details of the agreement, variation or amendment, or part thereof, that is not in writing. |
| (4) The parties to a liner shipping agreement claiming the benefit of the exemption under sub-paragraph (1) or (2) shall, upon notice being given by the Commission and within such period of time as may be specified by the Commission, demonstrate that sub-paragraph (1) or (2), as the case may be, is satisfied. |
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