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Free Trade Agreement Between
Chapter V: Customs Procedures Section I-Certification of Origin Article V.1 Certificate of Origin 1. The Parties shall establish, by the date of entry into force of this Agreement, a Certificate of Origin for the purpose of certifying that a good being exported from the territory of a Party into the territory of the other Party qualifies as an originating good, and may thereafter revise the Certificate of Origin by agreement. 2. Each Party may require that a Certificate of Origin for a good imported into its territory be completed in the language required under its law. 3. Each Party shall:
4. Nothing in paragraph 3 shall be construed to require a producer to provide a Certificate of Origin to an exporter. 5. Each Party shall provide that a Certificate of Origin that has been completed and signed by an exporter or a producer in the territory of the other Party that is applicable to:
shall be accepted by its customs administration for 4 years after the date on which the Certificate of Origin was signed. 6. For any originating good that is imported into the territory of a Party on or after the date of entry into force of this Agreement, each Party shall accept a Certificate of Origin that has been completed and signed prior to that date by the exporter or producer of that good. Article V.2 Obligations Regarding Importations 1. Except as otherwise provided in this Chapter, each Party shall require an importer in its territory that claims preferential tariff treatment for a good imported into its territory from the territory of the other Party to:
2. Each Party shall provide that, where an importer in its territory claims preferential tariff treatment for a good imported into its territory from the territory of the other Party:
3. Each Party shall provide that, where a good would have qualified as an originating good when it was imported into the territory of that Party but no claim for preferential tariff treatment was made at that time, the importer of the good may, no later than 4 years after the date on which the good was imported, apply for a refund of any excess duties paid as the result of the good not having been accorded preferential tariff treatment, on presentation of:
Article V.3 Exceptions Each Party shall provide that a Certificate of Origin shall not be required for:
Article V.4 Obligations Regarding Exportations 1. Each Party shall provide that:
2. Each Party:
(a) shall provide that a false certification by an exporter or a producer in its
territory that a good to be exported to the territory of the other Party qualifies
as an originating good shall have the same legal consequences, with
appropriate modifications, as would apply to an importer in its territory for a
contravention of its customs laws and regulations regarding the making of a
false statement or representation; and 3. Neither Party may impose penalties on an exporter or a producer in its territory that voluntarily provides written notification pursuant to paragraph (1)(b) with respect to the making of an incorrect certification. Section II - Administration and Enforcement Article V.5 Records Each Party shall provide that:
Article V.6 Origin Verifications 1. For purposes of determining whether a good imported into its territory from the territory of the other Party qualifies as an originating good, a Party may, through its customs administration, conduct a verification solely by means of:
2. An exporter or producer who receives a questionnaire pursuant to paragraph 1(a) shall be given not less than 30 days from the date of receipt to provide responses and return the form. During that period, the exporter or producer may submit a written request to the importing Party, asking for a single extension of this deadline for a period not to exceed an additional 30 days. 3. Where an exporter or producer fails to return a duly completed questionnaire within the above-mentioned period or extension, the importing Party may deny preferential tariff treatment to the good in question. 4. Prior to conducting a verification visit pursuant to Paragraph (1)(b), a Party shall, through its customs administration:
5. The notification referred to in paragraph 4 shall include:
6. Where an exporter or producer has not given its written consent to a proposed verification visit within 30 days of notification pursuant to paragraph 4, the notifying Party may deny preferential tariff treatment to the good that would have been the subject of the visit. 7. Each Party shall provide that, where its customs administration receives notification pursuant to paragraph 4, the customs administration may, within 15 days of receipt of the notification, postpone the proposed verification visit for a period not exceeding 60 days from the date of such receipt, or for such longer period as the Parties may agree. 8. Each Party shall provide that, when the exporter or producer receives notification pursuant to paragraph 4, the exporter or producer may, on a single occasion, within 15 days of receipt of the notification, request the postponement of the proposed verification visit for a period not exceeding 60 days from the date of such receipt, or for such longer period as agreed to by the notifying Party. 9. A Party shall not deny preferential tariff treatment to a good based solely on the postponement of a verification visit pursuant to paragraph 7. 10. Each Party shall permit an exporter or a producer whose good is the subject of a verification visit by the other Party to designate 2 observers to be present during the visit, provided that:
11. Each Party shall, through its customs administration, where conducting a verification of origin involving a regional value content, de minimis calculation or any other provision in Chapter IV (Rules of Origin) to which Generally Accepted Accounting Principles may be relevant, apply such principles as are applicable in the territory of the Party from which the good was exported. 12. The Party conducting a verification shall, through its customs administration and within 120 days after it has received all the necessary information, provide the exporter or producer whose good is the subject of the verification with a written determination of whether the good qualifies as an originating good, including findings of fact and the legal basis for the determination. Notwithstanding the foregoing, the customs administration may extend such period for up to 90 days, after notifying the producer or exporter of the good. 13. Where verifications by a Party indicate a pattern of conduct by an exporter or a producer of false or unsupported representations that a good imported into its territory qualifies as an originating good, the Party may withhold preferential tariff treatment to identical goods exported or produced by such person until that person establishes compliance with Chapter IV (Rules of Origin). 14. Each Party shall provide that where it determines that a certain good imported into its territory does not qualify as an originating good based on a tariff classification or a value applied by the Party to one or more materials used in the production of the good, which differs from the tariff classification or value applied to the materials by the other Party, the Party's determination shall not become effective until it notifies in writing both the importer of the good and the person that completed and signed the Certificate of Origin for the good of its determination. 15. A Party shall not apply a determination made under paragraph 14 to an importation made before the effective date of the determination where: (a) the customs administration of the other Party has issued an advance ruling under Article V.9 or any other ruling on the tariff classification or on the value of such materials, or has given consistent treatment to the entry of the materials under the tariff classification or value at issue, on which a person is entitled to rely; and (b) the advance ruling, other ruling or consistent treatment was given prior to notification of the determination. 16. If a Party denies preferential tariff treatment to a good pursuant to a determination made under paragraph 14, it shall postpone the effective date of the denial for a period not exceeding 90 days where the importer of the good, or the person who completed and signed the Certificate of Origin for the good, demonstrates that it has relied in good faith to its detriment on the tariff classification or value applied to such materials by the customs administration of the other Party. 17. The Parties may also agree to develop other verification procedures under this Article. Article V.7 Confidentiality 1. Each Party shall maintain, in accordance with its law, the confidentiality of the business information collected pursuant to this Chapter and shall protect that information from disclosure that could prejudice the competitive position of the person providing the information. 2. The confidential business information collected pursuant to this Chapter may only be disclosed to those authorities responsible for the administration and enforcement of determinations of origin, and of customs and revenue matters. Article V.8 Penalties 1. Each Party shall maintain measures imposing criminal, civil or administrative penalties for violations of its laws and regulations relating to this Chapter. 2. Nothing in Article V.2.2, V.4.3 or V.6.9 shall be construed to prevent a Party from applying such measures as may be warranted by the circumstances in accordance with its legislation. Section III - Advance Rulings Article V.9 Advance Rulings 1. Each Party shall, through its customs administration, provide for the expeditious issuance of written advance rulings, prior to the importation of a good into its territory, to an importer in its territory or an exporter or a producer in the territory of the other Party, on the basis of the facts and circumstances presented by such importer, exporter or producer of the good, concerning:
2. Each Party shall adopt or maintain procedures for the issuance of advance rulings, including a detailed description of the information reasonably required to process an application for a ruling. 3. Each Party shall provide that its customs administration:
4. Subject to paragraph 6, each Party shall apply an advance ruling to importations into its territory of the good for which the ruling was requested, beginning on the date of its issuance or such later date as may be specified in the ruling. 5. Each Party shall provide to any person requesting an advance ruling the same treatment, including the same interpretation and application of provisions of Chapter IV (Rules of Origin) regarding a determination of origin, as it provided to any other person to whom it issued an advance ruling, provided that the facts and circumstances are identical in all material respects. 6. The issuing Party may modify or revoke an advance ruling:
7. Each Party shall provide that any modification or revocation of an advance ruling shall be effective on the date on which the modification or revocation is issued, or on such later date as may be specified therein, and shall not be applied to importations of a good that have occurred prior to that date, unless the person to whom the advance ruling was issued has not acted in accordance with its terms and conditions. 8. Notwithstanding paragraph 7, the issuing Party shall postpone the effective date of such modification or revocation for a period not exceeding 90 days where the person to whom the advance ruling was issued demonstrates that it has relied in good faith to its detriment on that ruling. 9. Each Party shall provide that where its customs administration examines the regional value content of a good for which it has issued an advance ruling pursuant to subparagraph 1(b), (c), (d) and (e), it shall evaluate whether:
10. Each Party shall provide that where its customs administration determines that any requirement in paragraph 9 has not been satisfied, it may modify or revoke the advance ruling as the circumstances may warrant. 11. Each Party shall provide that, where the person to whom an advance ruling was issued demonstrates that it used reasonable care and acted in good faith in presenting the facts and circumstances on which the ruling was based, and where the customs administration of a Party determines that the ruling was based on incorrect information, the person to whom the ruling was issued shall not be subject to penalties. 12. Each Party shall provide that where it issues an advance ruling to a person that has misrepresented or omitted material facts or circumstances on which the ruling is based, or has failed to act in accordance with the terms and conditions of the ruling, the Party may apply such measures as may be warranted by the circumstances in accordance with its laws. 13. The Parties shall provide that an advance ruling will remain in effect and will be honoured if there is no change in the material facts or circumstances on which it is based. 14. Each Party may provide that, where application for an advance ruling is made to its customs administration that involves an issue that is the subject of:
Section IV - Review and Appeal of Advance Rulings and Origin Determinations Article V.10 Review and Appeal 1. Each Party shall grant substantially the same rights of review and appeal of determinations of origin and advance rulings issued by its customs administration as it provides to importers in its territory, to any person:
2. Further to Articles XII.4 (Administrative Proceedings) and XII.5 (Review and Appeal), each Party shall provide that the rights of review and appeal referred to in Paragraph 1 shall include access to:
Section V - Uniform Regulations Article V.11 Uniform Regulations 1. The Parties shall establish, and implement, through their respective laws, regulations or administrative policies, by the date of entry into force of this Agreement, and at any time thereafter, upon agreement of the Parties, Uniform Regulations regarding the interpretation, application and administration of this Chapter and other matters as may be agreed by the Parties. 2. Each Party shall implement any modification of or addition to the Uniform Regulations no later than 180 days after the Parties agree on such modification or addition, or such other period as the Parties may agree. Section VI - Cooperation Article V.12 Cooperation 1. Each Party shall notify the other Party of the following determinations, measures and rulings, including, to the greatest extent practicable, those that are prospective in application:
2. The Parties shall cooperate:
Article V.13 The Customs Sub-Committee 1. The Parties hereby establish a Customs Sub-Committee, comprising representatives of each Party's customs administration. The Sub-Committee shall meet as required and at any other time on the request of either Party and shall:
2. Nothing in this Chapter shall be construed to prevent a Party from issuing a determination of origin or an advance ruling relating to any matter under consideration by the Customs Sub-Committee or from taking such other action as it considers necessary, pending a resolution of the matter under this Agreement. Article V.14 Definitions For purposes of this Chapter: commercial importation means the importation of a good into the territory of a Party for the purpose of sale, or any commercial, industrial or other like use; customs administration means the competent authority that is responsible under the law of a Party for the administration of customs laws and regulations; determination of origin means a determination as to whether a good qualifies as an originating good in accordance with Chapter IV (Rules of Origin); exporter in the territory of a Party means an exporter located in the territory of a Party and an exporter required under this Chapter to maintain records in the territory of that Party regarding exportations of a good; identical goods means goods that are the same in all respects, including physical characteristics, quality and reputation, irrespective of minor differences in appearance that are not relevant to a determination of origin of those goods under Chapter IV (Rules of Origin); importer in the territory of a Party means an importer located in the territory of a Party and an importer required under this Chapter to maintain records in the territory of that Party regarding importations of a good; indirect material means “indirect material” as defined in Article IV.15 (Definitions); material means "material" as defined in Article IV.15 (Definitions); net cost of a good means “net cost of a good” as defined in Article IV.15 (Definitions); preferential tariff treatment means the duty rate applicable to an originating good; producer means "producer" as defined in Article IV.15 (Definitions); production means "production" as defined in Article IV.15 (Definitions); transaction value means “transaction value” as defined in Article IV.15 (Definitions); Uniform Regulations means "Uniform Regulations" established under Article V.11 (Uniform Regulations); used means "used" as defined in Article IV.15 (Definitions); and value means value of a good or material in accordance with the Customs Valuation Agreement. Chapter VI: Emergency Action
Article VI.1 Article XIX of the GATT 1994 and the Agreement on Each Party retains its rights and obligations under Article XIX of the GATT 1994 and the Agreement on Safeguards of the WTO Agreement and any successor agreements. Article VI.2 Bilateral Actions 1. Subject to paragraphs 2 through 4, and during the transition period only, if a good originating in the territory of a Party, as a result of the reduction or elimination of a duty provided for in this Agreement, is being imported into the territory of the other Party in such increased quantities and under such conditions that the imports of the good from that Party alone constitute a substantial cause of serious injury, or threat thereof, to a domestic industry producing a like or directly competitive good, the Party into whose territory the good is being imported may, to the minimum extent necessary to remedy or prevent the injury:
2. The following conditions and limitations shall apply to a proceeding that may result in emergency action under paragraph 1:
3. A Party may take a bilateral emergency action after the expiration of the transition period to deal with cases of serious injury, or threat thereof, to a domestic industry arising from the operation of this Agreement only with the consent of the other Party. 4. The Party taking an action under this Article shall provide to the other Party mutually agreed trade liberalizing compensation in the form of concessions having substantially equivalent trade effects or equivalent to the value of the additional duties expected to result from the action. If the Parties are unable to agree on compensation, the Party against whose good the action is taken may take tariff action having trade effects substantially equivalent to the action taken under this Article. The Party taking the tariff action shall apply the action only for the minimum period necessary to achieve the substantially equivalent effects. 5. This Article does not apply to emergency actions respecting goods covered by Annex III.1 (Textile and Apparel Goods). Article VI.3 Administration of Emergency Action Proceedings 1. Each Party shall ensure the consistent, impartial and reasonable administration of its laws, regulations, decisions and rulings governing all emergency action proceedings. 2. Each Party shall entrust determinations of serious injury, or threat thereof, in emergency action proceedings to a competent investigating authority, subject to review by judicial or administrative tribunals, to the extent provided by domestic law. Negative injury determinations shall not be subject to modification, except by such review. The competent investigating authority empowered under domestic law to conduct such proceedings should be provided with the necessary resources to enable it to fulfill its duties. 3. Each Party shall adopt or maintain equitable, timely, transparent and effective procedures for emergency action proceedings, in accordance with the requirements set out in Annex VI.3 (Administration of Emergency Action Proceedings). 4. This Article does not apply to emergency actions taken under Annex III.1 (Textile and Apparel Goods). Article VI.4 Dispute Settlement in Emergency Action Matters Neither Party may request the establishment of an arbitral panel under Article XIII.8 (Establishment of an Arbitral Panel) regarding any proposed emergency action. Article VI.5 Definitions For purposes of this Chapter: competent investigating authority means the "competent investigating authority" of a Party as defined in Annex VI.5; contribute importantly means an important cause, but not necessarily the most important cause; domestic industry means the producers as a whole of the like or directly competitive good operating in the territory of a Party or those whose collective output of the like or directly competitive good constitutes a major proportion of the total domestic production of those goods; emergency action does not include any emergency action pursuant to a proceeding instituted prior to the entry into force of this Agreement; good originating in the territory of a Party means an originating good; serious injury means a significant overall impairment of a domestic industry; threat of serious injury means serious injury that, on the basis of facts and not merely on allegation, conjecture or remote possibility, is clearly imminent; and transition period means the 7 year period beginning on the entry into force of this Agreement, except where, in the case of Costa Rica, the tariff elimination for the good against which the action is taken occurs over a longer period of time, in which case the transition period shall be the period of the staged tariff elimination for that good. Administration of Emergency Action Proceedings Institution of a Proceeding 1. An emergency action proceeding may be instituted by a petition or complaint by entities specified in domestic law. The entity filing the petition or complaint shall demonstrate that it is representative of the domestic industry producing a good like or directly competitive with the imported good. 2. A Party may institute a proceeding on its own motion or request the competent investigating authority to conduct a proceeding. 3. Except as provided in this Annex, the time periods applicable to these proceedings will be those established by the domestic law of each Party. Contents of a Petition or Complaint 4. Where the basis for an investigation is a petition or complaint filed by an entity representative of a domestic industry, the petitioning entity shall, in its petition or complaint, provide the following information to the extent that such information is publicly available from governmental or other sources, or best estimates and the basis therefor if such information is not available:
5. Petitions or complaints, except to the extent that they contain confidential business information, shall promptly be made available for public inspection on being filed. Notice Requirement 6. On instituting an emergency action proceeding, the competent investigating authority shall publish notice of the institution of the proceeding in the official journal of the Party. The notice shall identify the petitioner or other requester, the imported good that is the subject of the proceeding and its tariff subheading, the nature and timing of the determination to be made, the time and place of the public hearing, dates of deadlines for filing briefs, statements and other documents, the place at which the petition and any other documents filed in the course of the proceeding may be inspected, and the name, address and telephone number of the office to be contacted for more information. 7. With respect to an emergency action proceeding instituted on the basis of a petition or complaint filed by an entity asserting that it is representative of the domestic industry, the competent investigating authority shall not publish the notice required by paragraph 5 without first assessing carefully that the petition or complaint meets the requirements of paragraph 3, including representativeness. Public Hearing 8. In the course of each proceeding, the competent investigating authority shall:
9. The competent investigating authority shall adopt or maintain procedures for the treatment of confidential information, protected under domestic law, that is provided in the course of a proceeding, including a requirement that interested parties and consumer associations providing such information furnish non-confidential written summaries thereof, or where they indicate that the information cannot be summarized, the reasons why a summary cannot be provided. Evidence of Injury and Causation 10. In conducting its proceeding the competent investigating authority shall gather, to the best of its ability, all relevant information appropriate to the determination it must make. It shall evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation of that industry, including the rate and amount of the increase in imports of the good concerned, the share of the domestic market taken by increased imports, and changes in the level of sales, production, productivity, capacity utilization, profits and losses, and employment. In making its determination, the competent investigating authority may also consider other economic factors, such as changes in prices and inventories, and the ability of firms in the industry to generate capital. 11. The competent investigating authority shall not make an affirmative injury determination unless its investigation demonstrates, on the basis of objective evidence, the existence of a clear causal link between increased imports of the good concerned and serious injury, or threat thereof. Where factors other than increased imports are causing injury to the domestic industry at the same time, such injury shall not be attributed to increased imports. Deliberation and Report 12. The competent investigating authority, before making an affirmative determination in an emergency action proceeding, shall allow sufficient time to gather and consider the relevant information, hold a public hearing and provide an opportunity for all interested parties and consumer associations to prepare and submit their views. 13. The competent investigating authority shall publish promptly a report, including a summary thereof in the official journal of the Party, setting out its findings and reasoned conclusions on all pertinent issues of law and fact. The report shall describe the imported good and its tariff item number, the standard applied and the finding made. The statement of reasons shall set out the basis for the determination, including a description of:
14. In its report, the competent investigating authority shall not disclose any confidential information provided pursuant to any undertaking concerning confidential information that may have been made in the course of the proceedings. Country-Specific Definitions For purposes of this Chapter: competent investigating authority means:
Chapter VII: Antidumping Measures Article VII.1 Antidumping Measures 1. Except as otherwise provided in this Chapter, the WTO Agreement shall govern the rights and obligations of the Parties in respect of the application of antidumping duties. 2. In the interest of promoting improvements to, and clarifications of, the relevant provisions of the WTO Agreement the Parties recognise the desirability of:
3. In the interest of ensuring procedural fairness and transparency in anti-dumping investigations, the Parties reaffirm their full adherence to their obligations under the relevant provisions of the WTO Agreement including in respect of:
4. In an investigation, each Party shall provide the other Party with information concerning the point of contact in the investigating authority for that investigation. 5. All disputes between Parties arising in respect of the application of antidumping measures by either Party shall be settled in accordance with the WTO Agreement. PART THREE: SERVICES AND INVESTMENT Chapter VIII: Services and Investment Article VIII.1 General provisions 1. The Parties recognise the increasing importance of trade in services and investment in their economies. In their efforts to gradually develop and broaden their relations, the Parties will co-operate in the WTO and plurilateral fora, with the aim of creating the most favourable conditions for achieving further liberalisation and additional mutual opening of markets for trade in services and investment. 2. With a view to developing and deepening their relations under this Agreement, the Parties agree that within 3 years of the date of entry into force, they will review developments related to trade in services and investment, and consider the need for further disciplines in these areas. 3. Upon request of either Party, the other Party shall endeavour to provide information on measures that may have an impact on trade in services and investment. Article VIII.2 Investment The Parties note the existence of the Agreement between the Government of Canada and the Government of Costa Rica for the Promotion and Protection of Investments, signed in San José, Costa Rica, on March 18, 1998 (APPI). Article VIII.3 Services 1. The Parties herein recognize the importance of their rights and obligations assumed in the General Agreement on Trade in Services (GATS).
2.
(b) The following elements may be examined with regard to the standards and criteria referred to in subparagraph (a)(ii): (b) These bodies should report on the result of their discussions related to the development of mutually acceptable standards mentioned in subparagraph (a)(ii) and, as appropriate, provide any recommendations to the Coordinators. (c) With respect to the recognition of qualification and licensing requirements, the Parties note the existence of rights and obligations with respect to each other under Article VII of the GATS. (d) For the purpose of this paragraph, professional services means services, the provision of which requires specialized post-secondary education, or equivalent training or experience, and for which the right to practice is granted or restricted by a Party, but does not include services provided by trades-persons or vessel and aircraft crew members. PART FOUR: TRADE FACILITATION Chapter IX: Trade Facilitation and Additional Provisions Section I-Trade Facilitation Article IX.1 Objectives and Principles 1. With the objectives of facilitating trade under this Agreement and cooperating in pursuing trade facilitation initiatives on a multilateral and hemispheric basis, Canada and Costa Rica agree to administer their import and export processes for goods traded under this Agreement on the basis that:
2. The Parties shall release goods promptly, particularly those which are unrestricted or uncontrolled. Subject to Article IX.2.3, they shall provide a basic option of:
(a) releasing the goods at the time of entry based on the submission of only the
documentation required before the goods arrive or at the time of arrival. This
shall not prevent customs from requiring the submission of more extensive
documentation through post-entry accounting and verifications, as
appropriate; or 3. The Parties recognize that, for certain goods or under certain circumstances, such as goods subject to quota or to health-related or public safety requirements, releasing the goods may require the submission of more extensive information, before or at the time of arrival of the goods, to allow the authorities to examine the goods for release. 4. The Parties shall facilitate and simplify the process and procedures for the release of low-risk merchandise, and shall improve controls on the release of high-risk merchandise. For these purposes, the Parties shall base their examination and release procedures and their post-entry verification procedures on risk assessment principles, rather than examining each and every shipment offered for entry in a comprehensive manner for compliance with all import requirements. This shall not preclude the Parties from conducting quality control and compliance reviews which may require more extensive examinations. 5. The Parties shall ensure that the procedures and activities of various agencies whose requirements on the import or export of goods are maintained, either by themselves or on their behalf by customs, are coordinated to facilitate trade. In this connection, each Party shall take steps to harmonize the data requirements of such agencies with the objective of allowing importers and exporters to present all required data to only one border agency. 6. In their procedures for the clearance of express consignments, the Parties shall apply the World Customs Organization Principles on Express Consignment. 7. The Parties shall introduce or maintain simplified clearance procedures for the entry of goods which are low in value and for which the revenue associated with such imports is not considered significant by the Party maintaining such expedited procedures. 8. The Parties shall work to achieve common processes and simplification of the information necessary for the release of goods, applying, when appropriate, existing international standards. With this objective, the Parties shall establish a means of providing for the electronic exchange of information between customs administrations and the trading community for the purpose of encouraging rapid release procedures. For purposes of this Article, the Parties shall use formats based on international standards for the electronic exchange of information, and shall also take into account the World Customs Organization Recommendations "Concerning the Use of UN/EDIFACT Rules for Electronic Data Interchange" and "Concerning the Use of Codes for the Representation of Data Elements". This shall not preclude the use of additional electronic data transmission standards. 9. The Parties, through their customs administrations, shall establish formal consultation mechanisms with their trade and business communities to promote greater cooperation and the exchange of electronic information. 10. The Parties shall issue written rulings in advance of an importation in response to a written request by an importer, exporter or its representative. Rulings shall be issued for tariff classification, applicable rate of duty, any tax applicable upon importation, or whether goods are considered to be originating goods and entitled to tariff preferences under this Agreement. The rulings shall be as detailed as the nature of the request and the details provided by the person requesting the ruling permits. When a Party determines that a request for an advance ruling is incomplete, it may request additional information, including, where appropriate, a sample of the goods or materials in question from the person requesting the ruling. The advance ruling shall be binding upon the customs administration that issued the ruling at the time the goods are actually imported provided that the facts and circumstances that were the basis for the issuance of the advance ruling remain in effect. The customs administration of a Party may modify or revoke such a ruling at any time but only after notification to the person that requested the ruling and without retroactive application. The Parties may modify or revoke such rulings without notification and with retroactive application in circumstances where inaccurate or false information has been provided. 11. The Parties shall ensure that any administrative action or official decision taken in respect of the import or export of goods is reviewable promptly by judicial, arbitral or administrative tribunals or procedures, independent of the authority issuing the decision, which has the competence to maintain, modify or reverse the determination, in accordance with the law of each Party. The Parties shall provide for an administrative level of appeal or review, independent of the official or, where applicable, the office responsible for the original action or decision, before requiring a person to seek redress at a more formal or judicial level. 12. The Parties shall promptly publish or otherwise make available, including through electronic means, all their laws, regulations, judicial decisions and administrative rulings or policies of general application relating to their requirements for imported or exported goods. They shall also make available notices of an administrative nature, such as general agency requirements and entry procedures, hours of operation and points of contacts for information enquiries. 13. Each Party shall, in accordance with their laws, treat as strictly confidential all business information that is by its nature confidential or that is provided on a confidential basis. Article IX.3 Cooperation 1. The Parties recognize that technical cooperation is fundamental to facilitating compliance with the obligations set forth in this Agreement and for reaching a better degree of trade facilitation. 2. The Parties, through their customs administrations, agree to develop a technical cooperation program under such mutually agreed terms as the scope, timing and cost of cooperative measures, in customs-related areas such as, inter alia:
3. The Parties shall cooperate in the development of effective mechanisms for communicating with the trade and business communities. Article IX.4 Future Work Program 1. With the objective of developing further steps to facilitate trade under this Agreement, the Parties establish the following work program:
2. The Parties may periodically review the work program referred to in this Article for the purpose of agreeing upon new cooperation actions that might be needed to promote application of the trade facilitation obligations and principles, including new measures that might be agreed upon by the Parties. 3. Through the Parties' respective customs administrations and other border-related authorities as appropriate, the Parties will review relevant international initiatives on trade facilitation, including the Compendium of Trade Facilitation Recommendations, developed by the United Nations Conference on Trade and Development and the United Nations Economic Commission for Europe, to identify areas where further joint action would facilitate trade between the Parties and promote shared multilateral objectives. Section II-Additional Provisions Article IX.5 Sanitary and Phytosanitary Measures 1. The Parties reaffirm their rights and obligations under the WTO Agreement on the Application of Sanitary and Phytosanitary Measures. 2. The Parties agree to use the WTO dispute settlement procedures for any formal disputes regarding sanitary and phytosanitary (SPS) measures. 3. Recognizing the benefits from a bilateral program of technical and institutional cooperation, a Committee on Sanitary and Phytosanitary Measures, comprising representatives of each Party who have responsibilities for sanitary and phytosanitary matters, is hereby established. This Committee would provide a regular forum for consultations and co-operation to:
4. The Committee may consider the following:
5. The Committee will meet as required, normally on an annual basis, and report on its activities and work plans to the Coordinators. Article IX.6 Standards including Metrology 1. The Parties affirm their rights and obligations under the WTO Agreement on Technical Barriers to Trade (TBT Agreement), part of Annex 1A of the WTO Agreement. 2. The Parties shall use the relevant dispute settlement provisions of the WTO Agreement for any formal disputes related to their rights and obligations under the WTO TBT Agreement. 3. The Parties shall develop programs for technical cooperation aimed at achieving full and effective compliance with the obligations set forth in the WTO TBT Agreement. To this end, the Parties shall encourage their competent authorities in the area of standards, including metrology, to undertake the following activities for the purpose of strengthening processes and systems in this field:
4. The Parties shall include bilateral cooperation and coordination issues related to standards, including metrology, on the agenda of the Coordinators on a regular basis. Article IX.7 Government Procurement 1. The Parties agree to cooperate with the aim of achieving further liberalisation of public procurement markets and greater transparency in public procurement. 2. The Parties recognize that technical cooperation can contribute to achieving these aims and agree to cooperate in exploring potential approaches to such technical cooperation through existing mechanisms, particularly with respect to the application of information technology to government procurement. 3. The Parties shall, within 3 years after the entry into force of this Agreement, meet to review this Article. Chapter X: Temporary Entry Article X.1 Temporary Entry 1. The Parties recognize that there is a growing importance of investment and services related to trade in goods. In accordance with their applicable laws and regulations, they shall facilitate the temporary entry of:
2. With a view to developing and deepening their relations under this Agreement, the Parties agree that within 3 years of the date of entry into force, they will review developments related to temporary entry, and consider the need for further disciplines in this area. 3. No later than 1 year after the date of entry into force of this Agreement, the Parties shall make available explanatory material regarding the requirements for temporary entry under this Article in such a manner as to enable citizens of the other Party to become acquainted with them. 4. For the purposes of this Chapter: after-sales services include those provided by persons repairing and servicing, supervising installers, and setting up and testing commercial or industrial (including computer software) equipment, provided the services are being performed as part of an original or extended sales or lease agreement, warranty, or service contract. "Setting up" does not include hands-on installation generally performed by construction or building trades. After-sales services also includes persons providing familiarization or training sessions to potential users; business visitors are short-term visitors who do not intend to enter the labour market of the Parties, but seek entry to engage in activities such as buying or selling of goods or services, negotiating contracts, conferring with colleagues, or attending conferences; national means a natural person who is a citizen of a Party; and temporary entry means the right to enter and remain for the period authorized. PART FIVE: COMPETITION POLICY Chapter XI : Competition Policy Article XI .1 Purpose The purposes of this Chapter are to ensure that the benefits of trade liberalization are not undermined by anticompetitive activities and to promote cooperation and coordination between the competition authorities of the Parties. Article XI .2 General Principles 1. Each Party shall adopt or maintain measures to proscribe anticompetitive activities and shall take appropriate enforcement action pursuant to those measures, recognizing that such measures will enhance the fulfillment of the objectives of this Agreement. 2. Each Party shall ensure that the measures referred to in paragraph 1, and the enforcement actions pursuant to those measures, are applicable on a non-discriminatory basis. 3. For the purpose of this Chapter, anticompetitive activities include, but are not limited to, the following:
unless such activities are excluded, directly or indirectly, from the coverage of a Party’s own laws or authorized in accordance with those laws. All such exclusions and authorizations shall be transparent and should be periodically assessed by each Party to determine whether they are necessary to achieve their overriding policy objectives. 4. Each Party shall ensure that:
5. Each Party shall establish or maintain an impartial competition authority that is:
6. Each Party shall ensure that its judicial and quasi-judicial proceedings to address anticompetitive activities are fair and equitable, and that in such proceedings, persons that are directly affected:
7. Each Party shall ensure that, where there are any judicial or quasi-judicial proceedings to address anticompetitive activities, an independent domestic judicial or quasi-judicial appeal or review process is available to persons subject to any final decision arising out of those proceedings. Article XI .3 Cooperation 1. The Parties recognize the importance of cooperation and coordination of enforcement actions including notification, consultation and exchange of information. 2. Subject to Article XI.4, and unless providing notice would harm its important interests, each Party shall notify the other Party with respect to its enforcement actions that may affect that other Party’s important interests, and shall give full and sympathetic consideration to possible ways of fulfilling its enforcement needs without harming those interests. 3. For the purpose of this Chapter, enforcement actions that may affect the important interests of the other Party and therefore will ordinarily require notification include those that:
4. Notification will ordinarily be given as soon as the competition authority of a Party becomes aware that the notifiable circumstances pursuant to paragraphs 2 and 3 are present. 5. In accordance with their laws, the Parties may enter into additional cooperation and mutual legal assistance agreements, arrangements, or both in order to further the objectives of this Chapter. Article XI .4 Confidentiality Nothing in this Chapter shall require the provision of information by a Party or its competition authority contrary to its laws. The Parties shall, to the fullest extent possible, maintain the confidentiality of any information communicated to it in confidence by the other Party. Any information communicated shall only be used for the purpose of the enforcement action for which it was communicated. Article XI .5 Technical Assistance In order to achieve the objectives of this Chapter, the Parties agree that it is in their common interest to work together in technical assistance initiatives related to competition policy, measures to proscribe anticompetitive activities and enforcement actions. Article XI .6 Consultations 1. The Parties shall consult either at least once every two years, or pursuant to Article XIII.4 (Cooperation) on the written request of a Party, to consider matters regarding the operation, implementation, application or interpretation of this Chapter and to review the Parties’ measures to proscribe anticompetitive activities and the effectiveness of enforcement actions. Each Party shall designate one or more officials, including an official from each competition authority, to be responsible for ensuring that consultations, when required, occur in a timely manner. 2. If the Parties do not arrive at a mutually satisfactory resolution of a matter arising from the written request of a Party made under paragraph 1, they shall refer the matter to the Commission for consideration under Article XIII.1.2(c) (The Free Trade Commission). 3. Except as provided in paragraph 1, neither Party may have recourse to dispute settlement under this Agreement or to any kind of arbitration for any matter arising under this Chapter. Article XI .7 Definitions For purposes of this Chapter, these terms shall have the following definitions: anticompetitive activities means any conduct or transaction that may be subject to penalties or other relief under:
as well as any amendments thereto, and such other laws or regulations as the Parties may jointly agree to be applicable for purpose of this Chapter. competition authority(ies) means:
enforcement action(s) means any application of measures referred to in paragraph 1 of Article XI .2 by way of investigation or proceeding. measures means laws, regulations, procedures, practices or administrative rulings of general application. PART SIX: ADMINISTRATIVE AND INSTITUTIONAL PROVISIONS Chapter XII: Publication, Notification and Administration of Laws Article XII.1 Contact Points Each Party shall designate, within 60 days of the entry into force of the Agreement, a contact point to facilitate communications between the Parties on any matter covered by this Agreement. On the request of the other Party, the contact point shall identify the office or official responsible for the matter and assist, as necessary, in facilitating communication with the requesting Party. Article XII.2 Publication 1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application respecting any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other Party to become acquainted with them. 2. To the extent possible, each Party shall:
Article XII.3 Notification and Provision of Information 1. To the maximum extent possible, each Party shall notify the other Party of any proposed or actual measure that the Party considers might materially affect the operation of this Agreement or otherwise substantially affect the other Party's interests under this Agreement. 2. On request of the other Party, a Party shall promptly provide information and respond to questions pertaining to any actual or proposed measure, whether or not the other Party has been previously notified of that measure. 3. Any notification or information provided under this Article shall be without prejudice as to whether the measure is consistent with this Agreement. Article XII.4 Administrative Proceedings With a view to administering in a consistent, impartial and reasonable manner all measures of general application affecting matters covered by this Agreement, each Party shall ensure that in its administrative proceedings applying measures referred to in Article XII.2 to particular persons, goods or services of the other Party in specific cases:
Article XII.5 Review and Appeal 1. Each Party shall establish or maintain judicial, quasi-judicial or administrative tribunals or procedures for the purpose of the prompt review and, where warranted, correction of final administrative actions regarding matters covered by this Agreement. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter. 2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceeding are provided with the right to:
3. Each Party shall ensure, subject to appeal or further review as provided in its domestic law, that such decisions shall be implemented by, and shall govern the practice of, the offices or authorities with respect to the administrative action at issue. Article XII.6 Definitions For purposes of this Chapter: administrative ruling of general application means an administrative ruling or interpretation that applies to all persons and fact situations that fall generally within its ambit and that establishes a norm of conduct but does not include:
Chapter XIII: Institutional Arrangements and Dispute Settlement Procedures Section I - Institutions Article XIII.1 The Free Trade Commission 1. The Parties hereby establish the Free Trade Commission, comprising cabinet-level representatives of the Parties or their designees. 2. The Commission shall:
3. The Commission may:
4. The modification referred to in paragraph 3(d) will be implemented by the Parties in conformity with Annex XIII.1.4 (Implementation of the Modifications Approved by the Commission). 5. The Commission may establish committees, subcommittees or working groups taking into consideration any recommendation of the Coordinators. Except where specifically provided for in this Agreement, the committees, subcommittees and working groups shall work under a mandate recommended by the Coordinators and approved by the Commission. 6. The Commission will establish its rules and procedures. All decisions of the Commission shall be taken by mutual agreement. 7. The Commission shall normally convene once a year in regular session. Regular sessions of the Commission shall be chaired alternately by each Party. Article XIII.2 The Free Trade Coordinators 1. Each Party shall appoint a Free Trade Coordinator. 2. The Free Trade Coordinators shall:
3. The Coordinators shall meet as often as required. 4. Each Party may request in writing at any time that a special meeting of the Coordinators be held. Such a meeting shall take place within 30 days of receipt of the request. Article XIII.3 The Secretariat 1. The Commission shall establish and oversee a Secretariat comprising national Sections. 2. Each Party shall:
3. The Secretariat shall:
Section II - Dispute Settlement Article XIII.4 Cooperation The Parties shall at all times endeavour to agree on the interpretation and application of this Agreement, and shall make every attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect its operation. Article XIII.5 Recourse to Dispute Settlement Procedures Except as otherwise provided in this Agreement, the dispute settlement provisions of this Chapter shall apply with respect to the avoidance or settlement of all disputes between the Parties regarding the interpretation or application of this Agreement or wherever a Party considers that an actual or proposed measure of the other Party is or would be inconsistent with the obligations of this Agreement or cause nullification or impairment in the sense of Annex XIII.5 (Nullification and Impairment). Article XIII.6 WTO Dispute Settlement 1. Subject to paragraph 2, Article VI.4 (Dispute Settlement in Emergency Action Matters), Article VII.1.5 (Antidumping Measures), Article IX.5.1.2 (Sanitary and Phytosanitary Measures) and Article XI.6.3 (Consultations), disputes regarding any matter arising under both this Agreement and the WTO Agreement, any agreement negotiated thereunder, or any successor agreement, may be settled in either forum at the discretion of the complaining Party. 2. In any dispute referred to in paragraph 1 where the Party complained against claims that its action is subject to Article I.4 (Relation to Environmental and Conservation Agreements) and requests in writing that the matter be considered under this Agreement, the complaining Party may, in respect of that matter, thereafter have recourse to dispute settlement procedures solely under this Agreement. 3. The Party complained against shall deliver a copy of a request made pursuant to paragraph 2 to its Section of the Secretariat and the other Party. Where the complaining Party has initiated dispute settlement proceedings regarding any matter subject to paragraph 2, the Party complained against shall deliver its request no later than 15 days thereafter. On receipt of such request, the complaining Party shall promptly withdraw from participation in those proceedings and may initiate dispute settlement procedures under Article XIII.8. 4. Once dispute settlement procedures have been initiated under Article XIII.8 or dispute settlement proceedings have been initiated under the WTO Agreement, the forum selected shall be used to the exclusion of the other unless a Party makes a request pursuant to paragraph 2. 5. For purposes of this Article, dispute settlement proceedings under the WTO Agreement are deemed to be initiated by a Party's request for a panel, such as under Article 6 of the DSU. Article XIII.7 Consultations 1. A Party may request in writing consultations with the other Party regarding any actual or proposed measure or any other matter that it considers might affect the operation of this Agreement. 2. The requesting Party shall deliver the request to its Section of the Secretariat and the other Party. 3. In cases of urgency, including those which concern perishable goods, consultations shall commence within 15 days of the date of delivery of the request. 4. The Parties shall make every attempt to arrive at a mutually satisfactory resolution of any matter through consultations under this Article or other consultative provisions of this Agreement. To this end, the Parties shall:
Article XIII.8 Establishment of an Arbitral Panel 1. Unless the Parties agree to have recourse to alternative methods of dispute resolution, such as, for example, good offices, conciliation or mediation, the Parties agree to establish an arbitral panel to examine any matter they fail to resolve through consultations pursuant to Article XIII.7. 2. The complaining Party may request in writing the establishment of an arbitral panel if the Parties fail to resolve a matter pursuant to Article XIII.7 within:
3. The complaining Party shall state in the request the measure or other matter complained of and indicate the provisions of this Agreement that it considers relevant, and shall deliver the request to its Section of the Secretariat and to the other Party. 4. The Parties may consolidate two or more proceedings regarding other matters that they determine are appropriate to be considered jointly. 5. The arbitral panel shall be deemed established, by consent of both Parties, on the date the request for the establishment of the arbitral panel is delivered to the Party complained against. 6. Unless otherwise agreed by the Parties, the arbitral panel shall be established and perform its functions in a manner consistent with the provisions of this Chapter. Article XIII.9 Roster 1. No later than 3 months after the entry into force of the Agreement, the Parties shall establish and maintain a roster of up to 20 individuals, at least 5 of whom must not be citizens of either of the Parties, who are willing and able to serve as panelists. The roster members shall be appointed by agreement of the Parties for terms of 3 years. Unless either of the Parties disagrees, a roster member shall be considered reappointed for a further period of three years. 2. Roster members shall:
Article XIII.10 Qualifications of Panelists 1. All panelists shall meet the qualifications set out in Article XIII.9.2. 2. Individuals who might have been involved in any of the possible alternative dispute settlement proceedings referred to in Article XIII.8.1 may not serve as members of an arbitral panel on the same dispute. Article XIII.11 Panel Selection 1. The following procedures shall apply to panel selection:
2. Panelists shall normally be selected from the roster. A Party may exercise a peremptory challenge against any individual not on the roster who is proposed as a panelist by the other Party within 15 days after the individual has been proposed. 3. If a Party believes that a panelist is in violation of the code of conduct, the Parties shall consult and if they agree, the panelist shall be removed and a new panelist shall be selected in accordance with this Article. Article XIII.12 Rules of Procedure 1. The Commission shall establish, by the date of entry into force of this Agreement, Model Rules of Procedure, in accordance with the following principles:
2. The Commission may amend from time to time the Model Rules of Procedure referred to in paragraph 1. 3. Unless the Parties otherwise agree, the panel shall conduct its proceedings in accordance with the Model Rules of Procedure. 4. Unless the Parties otherwise agree within 20 days from the date of the delivery of the request for the establishment of the panel, the terms of reference shall be:
5. If the complaining Party wishes to argue that a matter has nullified or impaired benefits, the terms of reference shall so indicate. 6. If a Party wishes the panel to make findings as to the degree of adverse trade effects on a Party of any measure found not to conform with the obligations of the Agreement or to have caused nullification or impairment in the sense of Annex XIII.5, the terms of reference shall so indicate. Article XIII.13 Role of Experts On request of a Party, or on its own initiative, the panel may seek information and technical advice from any person or body that it deems appropriate, provided that the Parties so agree and subject to such terms and conditions as the Parties may agree. Article XIII.14 Initial Report 1. Unless the Parties otherwise agree, the panel shall base its report on the submissions and arguments of the Parties and on any information before it pursuant to Article XIII.13. 2. Unless the Parties otherwise agree, the panel shall, within 90 days after the last panelist is selected or such other period as the Model Rules of Procedure established pursuant to Article XIII.12.1 may provide, present to the Parties an initial report containing:
3. Panelists may furnish separate opinions on matters not unanimously agreed. 4. A Party may submit written comments to the panel on its initial report within 14 days of presentation of the report. 5. In such an event, and after considering such written comments, the panel, on its own initiative or on the request of a Party, may:
Article XIII.15 Final Report 1. Unless the Parties otherwise agree, the panel shall present to the Parties a final report within 30 days of presentation of the initial report, including any separate opinions on matters not unanimously agreed. 2. No panel may, either in its initial report or its final report, disclose which panelists are associated with majority or minority opinions. 3. Unless the Parties decide otherwise the final report of the panel shall be published 15 days after it is transmitted to the Parties. Article XIII.16 Implementation of Recommendations and Rulings 1. Prompt compliance with recommendations or rulings of the panel is essential in order to ensure effective resolution of disputes to the benefit of both Parties. 2. Within 30 days after the date on which a panel has issued its final report, the Party complained against shall notify the other Party of its intentions in respect of implementation of the recommendations and rulings of the panel. If it is impracticable to comply immediately with the recommendations and rulings, the Party complained against shall have a reasonable period of time in which to do so. The reasonable period of time shall be:
3. During the reasonable period of time, each Party shall accord sympathetic consideration to any request from the other Party for consultations with a view to reaching a mutually satisfactory solution regarding the implementation of the recommendations or rulings of the panel.
4.
Article XIII.17 Determination of Compliance 1. Where there is disagreement between the complaining Party and the Party complained against as to the existence or consistency with this Agreement of measures taken to comply with the recommendations or rulings of a panel, such disagreement shall be resolved through recourse to the dispute settlement procedures provided for in this Article. 2. The complaining Party may request the establishment of a compliance panel referred to in paragraph 6 of this Article at any time after:3
whichever is the earlier. Such request shall be made in writing. 3. While consultations between the Party complained against and the complaining Party are desirable, they are not required prior to a request for a compliance panel under paragraph 2. 4. When requesting the establishment of a compliance panel, the complaining Party shall identify the specific measures at issue and provide a brief summary of the legal basis of the complaint, sufficient to present the problem clearly. Unless the Parties agree on special terms of reference within 5 days from the establishment of the compliance panel, standard terms of reference in accordance with Article XIII.12 shall apply to the compliance panel. 5. The compliance panel shall be established on the date of the delivery of the request to establish such a panel. 6. The compliance panel shall consist of the members of the original panel. If any member of the original panel is not available, a new member shall be appointed in accordance with the procedure established under Article XIII.11.1(b). 7. The compliance panel shall provide its report to the Parties within 90 days of the date of its establishment. 8. The complaining Party shall not suspend concessions or other obligations under paragraph 9 of this Article until the compliance panel has provided its report to the Parties and the complaining Party has notified the Party complained against which particular concessions or obligations the Party intends to suspend. 9. If the compliance panel report finds that the Party complained against has failed to bring the measure found to be inconsistent with this Agreement into compliance therewith or otherwise comply with the recommendations or rulings of the panel in the dispute within the reasonable period of time, then:
10. The compliance panel shall establish its own working procedures. The provisions of Articles XIII.4, XIII.13, XIII.14, XIII.15.2, XIII.15.3, and XIII.16.1 shall apply to compliance panel proceedings except to the extent that:
Article XIII.18 Compensation and Suspension of Concessions 1. Compensation and the suspension of concessions or other obligations are temporary measures available in the event that the recommendations and rulings are not implemented within a reasonable period of time. However, neither compensation nor the suspension of concessions or other obligations is preferred to full implementation of a recommendation to bring a measure into conformity with the Agreement. Compensation is voluntary and, if granted, shall be consistent with a Party’s obligations under this Agreement. 2. If:
then a complaining Party may suspend the application to the Party complained against of concessions or other obligations under this Agreement. The Parties are encouraged to consult before concessions or other obligations are suspended to discuss a mutually satisfactory solution. 3. The complaining Party shall not implement any suspension of concessions or other obligations until 10 days after it has notified the Party complained against which particular concessions or obligations the Party intends to suspend. 4. The level of the suspension of concessions or other obligations shall be equivalent to the level of nullification or impairment. 5. (a) When the complaining Party has provided notice that it intends to suspend concessions or other obligations pursuant to paragraph 8 of Article XIII.17 or paragraph 3 of this Article and the Party complained against objects to the level of suspension proposed within 10 days after the receipt of such notice, the matter shall be referred to arbitration. 6. The arbitral panel acting pursuant to paragraph 5 shall not examine the nature of the concessions or other obligations to be suspended, but shall determine whether the level of such suspension is equivalent to the level of nullification or impairment. The Parties shall accept the arbitral panel´s decision as final and shall not seek a second arbitration. The decision shall constitute authorization to suspend concessions or other obligations consistent with the decision of the arbitral panel. 7. The suspension of concessions or other obligations shall be temporary and shall only be applied until such time as the measure found to be inconsistent with the Agreement has been removed, or the Party that must implement recommendations or rulings provides a solution to the nullification or impairment of benefits, or a mutually satisfactory solution is reached. The Commission shall, unless the Parties otherwise agree, include on its agenda the implementation of adopted recommendations or rulings, including those cases where compensation has been provided or concessions or other obligations have been suspended, but the recommendations to bring a measure into conformity with the Agreement have not been implemented. 8. (a) After a Party has suspended concessions or other obligations pursuant with this Agreement, the Party complained against may request a termination of such suspension on the grounds that it has eliminated the inconsistency or the nullification or impairment of benefits under this Agreement identified in the recommendations or rulings of the panel. The Party complained against shall include with any such request a written notice describing in detail the measures it has taken, providing the text of the relevant measures. If the Parties agree that the Party complained against has eliminated the inconsistency or the nullification or impairment of benefits, the authorization to suspend concessions or other obligations shall terminate. 9. The dispute settlement provisions of this Agreement may be invoked in respect of measures affecting their observance taken by regional or local governments or authorities within the territory of a Party. When a compliance panel has ruled that a provision of the Agreement has not been observed, the responsible Party shall take such reasonable measures as may be available to it to ensure its observance. The provisions of this Chapter relating to compensation and suspension of concessions or other obligations apply in cases where it has not been possible to secure such observance. Section III - Domestic Proceedings and Private Commercial Dispute Settlement Article XIII.19 Referrals of Matters from Judicial or Administrative Proceedings 1. If an issue of interpretation or application of this Agreement arises, in any domestic judicial or administrative proceeding of a Party, that either Party considers would merit its intervention, or if a court or administrative body solicits the views of a Party, that Party shall notify its Section of the Secretariat and the other Party. The Commission shall endeavour to agree on an appropriate response as expeditiously as possible. 2. The Party in whose territory the court or administrative body is located shall submit any agreed interpretation of the Commission to the court or administrative body in accordance with the rules of that forum. 3. If the Commission is unable to agree, each Party may submit its own views to the court or administrative body in accordance with the rules of that forum. Article XIII.20 Private Rights Neither Party may provide for a right of action under its domestic law against the other Party on the ground that a measure of the other Party is inconsistent with this Agreement. Article XIII.21 Alternative Dispute Resolution 1. Each Party shall, to the maximum extent possible, encourage and facilitate the use of arbitration and other means of alternative dispute resolution for the settlement of international commercial disputes between private parties in the free trade area. 2. To this end, each Party shall provide appropriate procedures to ensure observance of agreements to arbitrate and for the recognition and enforcement of arbitral awards in such disputes. 3. A Party shall be deemed to be in compliance with paragraph 2 if it is a party to and is in compliance with the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards or the 1975 Inter-American Convention on International Commercial Arbitration. 4. The Commission shall establish an Advisory Committee on Private Commercial Disputes comprising persons with expertise or experience in the resolution of private international commercial disputes. The Committee shall report and provide recommendations to the Commission on general issues referred to it by the Commission respecting the availability, use and effectiveness of arbitration and other procedures for the resolution of such disputes in the free trade area. Annex XIII.1.4 Implementation of the Modifications Approved by the Commission The Parties shall implement the decisions of the Commission to which Article XIII.1.3 (d) refers to, in accordance with the following procedures:
Annex XIII.2.2 Committees
Annex XIII.3.2 Remuneration and Payment of Expenses 1. The Commission shall establish the amounts of remuneration and expenses that will be paid to the panelists or committee, subcommittee and working group members. 2. The remuneration of panelists or committee, subcommittee and working group members and their assistants, their travel and lodging expenses, and all general expenses, shall be borne equally by the Parties. 3. Each panelist or committee, subcommittee and working group member shall keep a record and render a final account of the person's time and expenses, and the panel or committee, subcommittee and working group member shall keep a record and render a final account of all general expenses. Annex XIII.5 Nullification and Impairment 1. A Party may have recourse to dispute settlement under this Chapter if such Party considers that any benefit it could reasonably have expected to accrue to it under any provision of Part Two (Trade in Goods) is being nullified or impaired as a result of the application of any measure that is not inconsistent with this Agreement. 2. In any such dispute, the Panel shall take into consideration the jurisprudence interpreting Article XXIII.1.b) of the GATT 1994. PART SEVEN: OTHER PROVISIONS Chapter XIV: Exceptions Article XIV.1 General Exceptions For purposes of Part Two (Trade in Goods), Article XX of the GATT 1994 and its interpretative notes, or any equivalent provision of a successor agreement to which both Parties are party, are incorporated into and made part of this Agreement. The Parties understand that the measures referred to in Article XX(b) of the GATT 1994 include environmental measures necessary to protect human, animal or plant life or health, and that Article XX(g) of the GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources. Article XIV.2 National Security Nothing in this Agreement shall be construed:
Article XIV.3 Taxation 1. Except as set out in this Article and in Annex XIV.3.1, nothing in this Agreement shall apply to taxation measures. 2. Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention. In the event of any inconsistency between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency. 3. Notwithstanding paragraph 2:
Article XIV.4 Balance of Payments 1. Nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining measures that restrict transfers where the Party experiences serious balance of payments difficulties, or the threat thereof, and such restrictions are consistent with this Article. 2. As soon as practicable after a Party imposes a measure under this Article, the Party shall:
3. A measure adopted or maintained under this Article shall:
4. A Party may adopt or maintain a measure under this Article that gives priority to services that are essential to its economic program, provided that a Party may not impose a measure for the purpose of protecting a specific industry or sector unless the measure is consistent with paragraph 2(c) and with Article VIII(3) of the Articles of Agreement of the IMF. 5. Restrictions imposed on transfers:
Article XIV.5 Disclosure of Information Nothing in this Agreement shall be construed to require a Party to furnish or allow access to information the disclosure of which would impede law enforcement or would be contrary to the Party's law protecting personal privacy or the financial affairs and accounts of individual customers of financial institutions. Article XIV.6 Cultural Industries Measures affecting cultural industries are exempt from the provisions of this Agreement except as specifically provided for in Chapter III (National Treatment and Market Access of Goods) of this Agreement. Article XIV.7 Definitions For purposes of this Chapter: cultural industries means persons engaged in any of the following activities:
international capital transactions means "international capital transactions" as defined under the Articles of Agreement of the IMF; IMF means the International Monetary Fund; payments for current international transactions means "payments for current international transactions" as defined under the Articles of Agreement of the IMF; tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement; taxation measures do not include:
transfers means international transactions and related international transfers and payments. Annex XIV.3.1 Double Taxation 1. The Parties agree to conclude a bilateral double taxation agreement within a reasonable time after the date that this Agreement enters into force. 2. The Parties agree that upon conclusion of a bilateral double taxation agreement, they will agree to an exchange of letters setting out the relationship between the double taxation agreement and Article XIV.3 of the Agreement. Chapter XV: Final Provisions Article XV.1 Annexes, Appendices and Footnotes The Annexes, Appendices and footnotes to this Agreement constitute integral parts of this Agreement. Article XV.2 Amendments 1. The Parties may agree on any modification of or addition to this Agreement. 2. When so agreed, and approved in accordance with the applicable legal procedures of each Party, a modification or addition shall constitute an integral part of this Agreement. Article XV.3 Reservations This Agreement shall not be subject to unilateral reservations or unilateral interpretative declarations. Article XV.4 Entry into Force This Agreement shall enter into force following an exchange of written notifications certifying the completion of necessary legal procedures. The Parties agree on the desirability of an exchange of such notifications by January 1, 2002. Article XV.5 Duration and Termination This Agreement shall remain in force unless terminated by either Party on 6 months' notice to the other Party. Article XV.6 Authentic Texts The English, French and Spanish texts of this Agreement are equally authentic. Return to Index [1] If the Parties cannot agree on an arbitrator within 10 days after referring the matter to arbitration, the arbitrator shall be chosen by lot from among the panelists. [2] The Party complained against shall provide a detailed written status report concerning its progress in the implementation of the recommendations or rulings. [3] A compliance panel may also be established pursuant to paragraph 9 of Article XIII.18. |
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