Comparative Guide Chile - U.S. FTA and DR - CAFTA - Chapter 20: Transparency

A Comparative Guide to the Chile-United States Free Trade Agreement and the
Dominican Republic-Central America-United States Free Trade Agreement


Chapter Twenty:  Transparency


Table of Contents

The provisions on Transparency are very similar in both (Chile-U.S. FTA Chapter 20 and DR-CAFTA Chapter 18). Both Agreements set forth processes to encourage and promote transparency within the process of creating an FTA, through the provision of information, opportunities for public commentary, and subsequent review and appeals mechanisms between Parties. Of interest is the underlying precept that notes that action should be taken to communicate/publish a measure prior to adoption.

Contact points: both Agreements establish that contact points (Chile-U.S. FTA Art.20.1 and DR-CAFTA Art.18.1) be designated to facilitate communications between the Parties. They go on to note that the contact points shall assist the other Party(ies) to find the responsible office or official in specific areas as needed.

Publication: as a matter of transparency of process, the Agreements note that each party agrees to make public, or otherwise make available to interested Parties, all laws, regulations, procedures and administrative rulings that are covered by the respective Agreements. Additionally, it is encouraged, to the extent possible, that new measures are made public prior to adoption and that Parties should be allowed the opportunity to comment. (Chile-U.S. FTA Art.20.2 and DR-CAFTA Art.18.2).

Notification and Provision of Information: both Agreements (Chile-U.S. FTA Art.20.3 and DR-CAFTA Art.18.3) mandate that the member Parties notify the other when undertaking a proposed or actual measure that might materially affect the operation of the Agreement. One Party may even request more information or ask questions of the other Party on the measure.

Administrative proceedings: in both the Chile-U.S. FTA and DR-CAFTA (Chile-U.S. FTA Art.20.4 and DR-CAFTA Art.18.4), provisions are set forth to create a consistent, impartial and reasonable manner in the process by which proceedings are undertaken. Both establish that wherever possible, a Party directly affected by a proceeding, should be given reasonable notice, when a measure is initiated, a description of the nature of the proceeding, the legal authority under which the measure is initiated and a general description of the controversy under consideration.

Each goes on to state that affected persons should be afforded a reasonable opportunity to present facts and arguments in support of their positions prior to any final determination, when time, the nature of the proceeding and the public interest permit. Also, both Agreements conclude this issue by stating the procedures used be in accordance with domestic law.

Review and Appeal: additionally the Agreements (Chile-U.S. FTA Art.20.5 and DR-CAFTA Art.18.5) call for all Parties to establish judicial, quasi-judicial or administrative tribunals or mechanisms where final administrative actions covered by the Agreements could be reviewed and if warranted corrected. There are to be independent bodies with no substantial interest in the outcome of the matter under consideration. In addition to these structures, the Agreements note that the proceedings must allow for a reasonable opportunity to support or defend respective positions and that the decisions of the bodies be based on the evidence or the submissions of record.

Definitions: both Agreements (Chile-U.S. FTA Art.20.6 and DR-CAFTA Art.18.6) set forth a “definition for an administrative ruling of general application”.

Anti-Corruption: DR-CAFTA takes on the additional issue of bribery and corruption. In Section B of this Chapter, under Article 18.7, a statement of principle is included that “affirms (each Parties) resolve to eliminate bribery and corruption in international trade and investment”. Article 18.8, Anti-Corruption Measures, sets forth three underlying activities, as they affect international trade or investment, that require necessary legislative or other measure to establish that they are a criminal offense, these are: for public officials to materially gain from an act in exchange for an act or omission in the performance of a public function; for a person to bribe, either directly or indirectly, a public official for personal gain or advantage; for a person of one country to bribe a foreign official of another in order that the official act or refrain from acting in relation to the performance of an official duty, in order to obtain or retain a business or other improper advantage in the conduct of international business. Lastly they note that to conspire to undertake any of the aforementioned activities is also considered a criminal offence.

The section also notes that appropriate penalties should be put into effect to cover these criminal measures, also that should an activity as described above not be applicable to enterprises as criminal activities, that effective, proportionate and dissuasive non-criminal sanctions be put into place.

They also note that appropriate protections be put into place to protect those that in good faith report acts of bribery or corruption.

Lastly the Parties set forth to work jointly to encourage and support appropriate initiatives in relevant international fora (Art.18.9).