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DOMINICAN REPUBLIC - CENTRAL AMERICA- UNITED STATES FREE TRADE AGREEMENT
Chapters 13-22
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Chapter Thirteen
Telecommunications1
Article 13.1: Scope and Coverage
1. This Chapter applies to:
(a) measures adopted or maintained by a Party relating to access to and use
of public
telecommunications services;
(b) measures adopted or maintained by a Party relating to obligations of
suppliers of
public telecommunications services;
(c) other measures relating to public telecommunications networks or
services; and
(d) measures adopted or maintained by a Party relating to the supply of
information
services.
2. Except to ensure that enterprises operating broadcast stations and cable
systems have
continued access to and use of public telecommunications services, this
Chapter does not apply
to any measure adopted or maintained by a Party relating to broadcast or
cable distribution of
radio or television programming.
3. Nothing in this Chapter shall be construed to:
(a) require a Party or require a Party to compel any enterprise to establish,
construct,
acquire, lease, operate, or provide telecommunications networks or services
where such networks or services are not offered to the public generally;
(b) require a Party to compel any enterprise exclusively engaged in the
broadcast or
cable distribution of radio or television programming to make available its
broadcast or cable facilities as a public telecommunications network; or
(c) prevent a Party from prohibiting persons operating private networks from
using
their networks to supply public telecommunications networks or services to
third
parties.
Article 13.2: Access to and Use of Public Telecommunications Services
1. Each Party shall ensure that enterprises of another Party have access to
and use of any
public telecommunications service, including leased circuits, offered in its
territory or across its
borders, on reasonable and non-discriminatory terms and conditions, including
as set out in
paragraphs 2 through 6.
2. Each Party shall ensure that such enterprises are permitted to:
(a) purchase or lease, and attach terminal or other equipment that interfaces
with a
public telecommunications network;
(b) provide services to individual or multiple end-users over leased or owned
circuits;
(c) connect owned or leased circuits with public telecommunications networks
and
services in the territory, or across the borders, of that Party or with
circuits leased
or owned by another person; (d) perform switching, signaling, processing, and conversion functions; and (e) use operating protocols of their choice.
3. Each Party shall ensure that enterprises of another Party may use public
telecommunications services for the movement of information in its territory
or across its borders
and for access to information contained in databases or otherwise stored in
machine-readable
form in the territory of any Party.
4. Notwithstanding paragraph 3, a Party may take such measures as are
necessary to:
(a) ensure the security and confidentiality of messages; or
(b) protect the privacy of non-public personal data of subscribers to public
telecommunications services,
subject to the requirement that such measures are not applied in a manner
that would constitute a
means of arbitrary or unjustifiable discrimination or disguised restriction
on trade in services.
5. Each Party shall ensure that no condition is imposed on access to and use
of public
telecommunications networks or services, other than that necessary to:
(a) safeguard the public service responsibilities of suppliers of public
telecommunications networks or services, in particular their ability to make
their
networks or services available to the public generally; or
(b) protect the technical integrity of public telecommunications networks or
services.
6. Provided that conditions for access to and use of public
telecommunications networks or
services satisfy the criteria set out in paragraph 5, such conditions may
include:
(a) a requirement to use specified technical interfaces, including interface
protocols,
for interconnection with such networks or services; and
(b) a licensing, permit, registration, or notification procedure which, if
adopted or
maintained, is transparent and provides for the processing of applications
filed
thereunder in accordance with the Party’s national law or regulation.
Article 13.3: Obligations Relating to Suppliers of Public Telecommunications
Services2
Interconnection
1.
(a) Each Party shall ensure that suppliers of public telecommunications
services in its territory provide, directly or indirectly, interconnection with the suppliers
of
public telecommunications services of another Party.
(b) In carrying out subparagraph (a), each Party shall ensure that suppliers
of public
telecommunications services in its territory take reasonable steps to protect
the
confidentiality of commercially sensitive information of, or relating to,
suppliers
and end-users of public telecommunications services and only use such
information for the purpose of providing those services.
(c) Each Party shall provide its telecommunications regulatory body the
authority to
require public telecommunications suppliers to file their interconnection
contracts.
Resale
2. Each Party shall ensure that suppliers of public telecommunications
services do not
impose unreasonable or discriminatory conditions or limitations on the resale
of those services.
Number Portability
3. Each Party shall ensure that suppliers of public telecommunications
services in its
territory provide number portability to the extent technically feasible, on a
timely basis, and on
reasonable terms and conditions.3
Dialing Parity
4. Each Party shall ensure that suppliers of public telecommunications
services in its
territory provide dialing parity to suppliers of public telecommunications
services of another
Party, and afford suppliers of public telecommunications services of another
Party nondiscriminatory
access to telephone numbers and related services with no unreasonable dialing
delays.
Article 13.4: Additional Obligations Relating to Major Suppliers of Public
Telecommunications Services4
Treatment by Major Suppliers
1. Each Party shall ensure that major suppliers in its territory accord
suppliers of public
telecommunications services of another Party treatment no less favorable than
such major
suppliers accord to their subsidiaries, their affiliates, or non-affiliated
service suppliers
regarding:
(a) the availability, provisioning, rates, or quality of like public
telecommunications
services; and
(b) the availability of technical interfaces necessary for interconnection.
Competitive Safeguards
2.
(a) Each Party shall maintain5 appropriate measures
for the purpose of preventing
suppliers who, alone or together, are a major supplier in its territory from
engaging in or continuing anti-competitive practices.
(b) The anti-competitive practices referred to in subparagraph (a) include in
particular:
(i) engaging in anti-competitive cross-subsidization;
(ii) using information obtained from competitors with anti-competitive
results;
and
(iii) not making available, on a timely basis, to suppliers of public
telecommunications services, technical information about essential
facilities and commercially relevant information which are necessary for
them to provide public telecommunications services.
Resale
3. Each Party shall ensure that major suppliers in its territory:
(a) offer for resale, at reasonable rates,6 to
suppliers of public telecommunications
services of another Party, public telecommunications services that such major
suppliers provide at retail to end-users that are not suppliers of public
telecommunications services; and
(b) do not impose unreasonable or discriminatory conditions or limitations on the resale of such services.7
Unbundling of Network Elements
4.
(a) Each Party shall provide its telecommunications regulatory body the
authority to require major suppliers in its territory to offer access to network elements
on an
unbundled basis on terms, conditions, and at cost-oriented rates that are
reasonable, non-discriminatory, and transparent for the supply of public
telecommunications services.
(b) Each Party may determine the network elements required to be made
available in
its territory, and the suppliers that may obtain such elements, in accordance
with
its law and regulations.
Interconnection
5.
(a) General Terms and Conditions Each Party shall ensure that major suppliers in its territory provide
interconnection for the facilities and equipment of suppliers of public
telecommunications services of another Party:
(i) at any technically feasible point in the major supplier’s network;
(ii) under non-discriminatory terms, conditions (including technical
standards
and specifications), and rates;
(iii) of a quality no less favorable than that provided by such major
suppliers for their own like services, for like services of non-affiliated service
suppliers, or for their subsidiaries or other affiliates;
(iv) in a timely fashion, on terms, conditions (including technical standards
and specifications), and, subject to Annex 13.4.5, cost-oriented rates that
are transparent, reasonable, having regard to economic feasibility, and
sufficiently unbundled so that the suppliers need not pay for network
components or facilities that they do not require for the service to be
provided; and
(v) on request, at points in addition to the network termination points
offered
to the majority of users, subject to charges that reflect the cost of
construction of necessary additional facilities.
(b) Options for Interconnecting with Major Suppliers
Each Party shall ensure that suppliers of public telecommunications services
of
another Party may interconnect their facilities and equipment with those of
major
suppliers in its territory pursuant to at least one of the following options:
(i) a reference interconnection offer or another standard interconnection
offer
containing the rates, terms, and conditions that the major suppliers offer
generally to suppliers of public telecommunications services; or
(ii) the terms and conditions of an interconnection agreement in force or
through negotiation of a new interconnection agreement.
(c) Public Availability of Interconnection Offers
Each Party shall require major suppliers in its territory to make publicly
available
reference interconnection offers or other standard interconnection offers
containing the rates, terms, and conditions that the major suppliers offer
generally
to suppliers of public telecommunications services.
(d) Public Availability of the Procedures for Interconnection Negotiations
Each Party shall make publicly available the applicable procedures for
interconnection negotiations with major suppliers in its territory.
(e) Public Availability of Interconnection Agreements Concluded with Major
Suppliers
(i) Each Party shall require major suppliers in its territory to file all
interconnection agreements to which they are party with its
telecommunications regulatory body or other relevant body.
(ii) Each Party shall make publicly available interconnection agreements in
force between major suppliers in its territory and other suppliers of public
telecommunications services in its territory.
Provisioning and Pricing of Leased Circuits Services
6.
(a) Each Party shall ensure that major suppliers in its territory provide
enterprises of another Party leased circuits services that are public telecommunications
services on terms, conditions, and at rates that are reasonable and
nondiscriminatory.
(b) In carrying out subparagraph (a), each Party shall provide its
telecommunications
regulatory body the authority to require major suppliers in its territory to
offer
leased circuits services that are public telecommunications services to
enterprises
of another Party at flat-rate, cost-oriented prices.
Co-location
7.
(a) Subject to subparagraphs (b) and (c), each Party shall ensure that
major suppliers in its territory provide to suppliers of public telecommunications
services of another Party physical co-location of equipment necessary for
interconnection on terms, conditions, and at cost-oriented rates that are
reasonable, non-discriminatory, and transparent.
(b) Where physical co-location is not practical for technical reasons or
because of
space limitations, each Party shall ensure that major suppliers in its
territory:
(i) provide an alternative solution, or
(ii) facilitate virtual co-location in its territory,
on terms, conditions, and at cost-oriented rates that are reasonable,
nondiscriminatory,
and transparent.
(c) Each Party may specify in its law or regulations which premises are
subject to
subparagraphs (a) and (b).
Access to Rights-of-Way
8. Subject to Annex 13.4.8, each Party shall ensure that major suppliers in
its territory
afford access to their poles, ducts, conduits, and rights-of-way to suppliers
of public
telecommunications services of another Party on terms, conditions, and at
rates that are
reasonable and non-discriminatory.
Article 13.5: Submarine Cable Systems
Each Party shall ensure reasonable and non-discriminatory treatment for
access to
submarine cable systems (including landing facilities) in its territory,
where a supplier is
authorized to operate a submarine cable system as a public telecommunications
service.
Article 13.6: Conditions for the Supply of Information Services
1. No Party may require an enterprise in its territory that it classifies8 as a supplier of
information services and that supplies such services over facilities that it
does not own to:
(a) supply such services to the public generally;
(b) cost-justify its rates for such services;
(c) file a tariff for such services;
(d) interconnect its networks with any particular customer for the supply of
such
services; or
(e) conform with any particular standard or technical regulation for
interconnection
other than for interconnection to a public telecommunications network.
2. Notwithstanding paragraph 1, a Party may take the actions described in
subparagraphs (a)
through (e) to remedy a practice of a supplier of information services that
the Party has found in
a particular case to be anti-competitive under its law or regulations, or to
otherwise promote
competition or safeguard the interests of consumers.
Article 13.7: Independent Regulatory Bodies9 and
Government-Owned
Telecommunications Suppliers
1. Each Party shall ensure that its telecommunications regulatory body is
separate from, and
not accountable to, any supplier of public telecommunications services. To
this end, each Party
shall ensure that its telecommunications regulatory body does not hold a
financial interest or
maintain an operating role in any such supplier.
2. Each Party shall ensure that the decisions and procedures of its
telecommunications
regulatory body are impartial with respect to all interested persons. To this
end, each Party shall
ensure that any financial interest that it holds in a supplier of public
telecommunications services
does not influence the decisions and procedures of its telecommunications
regulatory body.
3. No Party may accord more favorable treatment to a supplier of public
telecommunications services or to a supplier of information services than
that accorded to a like
supplier of another Party on the ground that the supplier receiving more
favorable treatment is
owned, wholly or in part, by the national government of the Party.
Article 13.8: Universal Service
Each Party shall administer any universal service obligation that it
maintains in a
transparent, non-discriminatory, and competitively neutral manner and shall
ensure that its
universal service obligation is not more burdensome than necessary for the
kind of universal
service that it has defined.
Article 13.9: Licenses and Other Authorizations
1. Where a Party requires a supplier of public telecommunications services to
have a
license, concession, permit, registration, or other type of authorization,
the Party shall make
publicly available:
(a) all applicable licensing or authorization criteria and procedures it
applies;
(b) the time it normally requires to reach a decision concerning an
application for a
license, concession, permit, registration, or other type of authorization;
and
(c) the terms and conditions of all licenses or authorizations it has issued.
2. Each Party shall ensure that, on request, an applicant receives the
reasons for the denial
of a license, concession, permit, registration, or other type of
authorization.
Article 13.10: Allocation and Use of Scarce Resources
1. Each Party shall administer its procedures for the allocation and use of
scarce
telecommunications resources, including frequencies, numbers, and
rights-of-way, in an
objective, timely, transparent, and non-discriminatory manner.
2. Each Party shall make publicly available the current state of allocated
frequency bands
but shall not be required to provide detailed identification of frequencies
allocated for specific
government uses.
3. For greater certainty, a Party’s measures regarding the allocation and
assignment of
spectrum and regarding frequency management are not measures that are per
se inconsistent with
Article 11.4 (Market Access), which is applied to
Chapter Ten (Investment)
through Article
11.1.3 (Scope and Coverage). Accordingly, each Party retains the right to
establish and apply its
spectrum and frequency management policies, which may limit the number of
suppliers of public
telecommunications services, provided that it does so in a manner that is
consistent with this
Agreement. Each Party also retains the right to allocate frequency bands
taking into account
present and future needs.
Article 13.11: Enforcement
Each Party shall provide its competent authority with the authority to
establish and
enforce the Party’s measures relating to the obligations set out in
Articles
13.2 through 13.5.
Such authority shall include the ability to impose effective sanctions, which
may include
financial penalties, injunctive relief (on an interim or final basis), or the
modification,
suspension, and revocation of licenses or other authorizations.
Article 13.12: Resolution of Domestic Telecommunications Disputes
Further to Articles 18.4 (Administrative Proceedings) and
18.5 (Review and
Appeal),
each Party shall ensure the following:
Recourse to Telecommunications Regulatory Bodies
(a)
(i) Each Party shall ensure that enterprises of another Party may seek
review by a telecommunications regulatory body or other relevant body to resolve
disputes regarding the Party’s measures relating to a matter set out in
Articles 13.2 through 13.5.
(ii) Each Party shall ensure that suppliers of public telecommunications
services of another Party that have requested interconnection with a major
supplier in the Party’s territory may seek review, within a reasonable and
publicly available period of time after the supplier requests
interconnection, by a telecommunications regulatory body10 to resolve
disputes regarding the terms, conditions, and rates for interconnection
with such major supplier.
Reconsideration
(b) Each Party shall ensure that any enterprise that is aggrieved or whose
interests are
adversely affected by a determination or decision of the Party’s
telecommunications regulatory body may petition the body to reconsider that
determination or decision. No Party may permit such a petition to constitute
grounds for non-compliance with the determination or decision of the
telecommunications regulatory body unless an appropriate authority stays such
determination or decision.
Judicial Review
(c) Each Party shall ensure that any enterprise that is aggrieved or whose
interests are
adversely affected by a determination or decision of the Party’s
telecommunications regulatory body may obtain judicial review of such determination or decision by an independent judicial authority.
Article 13.13: Transparency Further to
Articles 18.2 (Publication) and
18.3 (Notification and Provision
of
Information), each Party shall ensure that:
(a) rulemakings, including the basis for such rulemakings, of its
telecommunications
regulatory body and end-user tariffs filed with its telecommunications
regulatory
body are promptly published or otherwise made publicly available;
(b) interested persons are provided with adequate advance public notice of,
and the
opportunity to comment on, any rulemaking that its telecommunications
regulatory body proposes; and
(c) its measures relating to public telecommunications services are made
publicly
available, including measures relating to:
(i) tariffs and other terms and conditions of service;
(ii) procedures relating to judicial and other adjudicatory proceedings;
(iii) specifications of technical interfaces;
(iv) bodies responsible for preparing, amending, and adopting
standards-related
measures affecting access and use;
(v) conditions for attaching terminal or other equipment to the public
telecommunications network; and
(vi) notification, permit, registration, or licensing requirements, if any.
Article 13.14: Flexibility in the Choice of Technologies
No Party may prevent suppliers of public telecommunications services from
having the
flexibility to choose the technologies that they use to supply their
services, including commercial
mobile wireless services, subject to requirements necessary to satisfy
legitimate public policy
interests.
Article 13.15: Forbearance
The Parties recognize the importance of relying on market forces to achieve
wide choices
in the supply of telecommunications services. To this end, each Party may
forbear from
applying a regulation to a service that the Party classifies as a public
telecommunications
service, if its telecommunications regulatory body determines that:
(a) enforcement of such regulation is not necessary to prevent unreasonable
or discriminatory practices;
(b) enforcement of such regulation is not necessary for the protection of
consumers;
and
(c) forbearance is consistent with the public interest, including promoting
and
enhancing competition between suppliers of public telecommunications
services.
Article 13.16: Relationship to Other Chapters
In the event of any inconsistency between this Chapter and another Chapter,
this Chapter
shall prevail to the extent of the inconsistency.
Article 13.17: Definitions
For purposes of this Chapter:
commercial mobile services means public telecommunications services
supplied through
mobile wireless means;
cost-oriented means based on cost, and may include a reasonable profit,
and may involve
different cost methodologies for different facilities or services;
dialing parity means the ability of an end-user to use an equal number of
digits to access a like
public telecommunications service, regardless of the public
telecommunications service supplier
chosen by such end-user;
end-user means a final consumer of or subscriber to a public
telecommunications service,
including a service supplier other than a supplier of public
telecommunications services;
enterprise means an “enterprise” as defined in
Article 2.1 (Definitions
of General Application),
and includes a branch of an enterprise;
essential facilities means facilities of a public telecommunications
network or service that:
(a) are exclusively or predominantly supplied by a single or limited number
of
suppliers; and
(b) cannot feasibly be economically or technically substituted in order to
supply a
service;
information service means the offering of a capability for generating,
acquiring, storing,
transforming, processing, retrieving, utilizing, or making available
information via
telecommunications, and includes electronic publishing, but does not include
any use of any
such capability for the management, control, or operation of a
telecommunications system or the
management of a telecommunications service;
interconnection means linking with suppliers providing public
telecommunications services in
order to allow the users of one supplier to communicate with users of another
supplier and to
access services provided by another supplier;
leased circuits means telecommunications facilities between two or more
designated points that
are set aside for the dedicated use of or availability to a particular
customer or other users of the
customer’s choosing;
major supplier means a supplier of public telecommunications services
that has the ability to
materially affect the terms of participation (having regard to price and
supply) in the relevant
market for public telecommunications services as a result of:
(a) control over essential facilities; or
(b) use of its position in the market;
network element means a facility or equipment used in supplying a public
telecommunications
service, including features, functions, and capabilities provided by means of
such facility or
equipment;
non-discriminatory means treatment no less favorable than that accorded
to any other user of
like public telecommunications services in like circumstances;
number portability means the ability of end-users of public
telecommunications services to
retain, at the same location, telephone numbers without impairment of
quality, reliability, or
convenience when switching between like suppliers of public
telecommunications services; physical co-location means physical access to and control over space in
order to install,
maintain, or repair equipment, at premises owned or controlled and used by a
supplier to supply
public telecommunications services;
public telecommunications service means any telecommunications service
that a Party
requires, explicitly or in effect, to be offered to the public generally.
Such services may include,
inter alia, telephone and data transmission typically involving
customer-supplied information
between two or more points without any end-to-end change in the form or
content of the
customer’s information, but does not include information services;
reference interconnection offer means an interconnection offer extended
by a major supplier
and filed with or approved by a telecommunications regulatory body that is
sufficiently detailed
to enable a supplier of public telecommunications services that is willing to
accept its rates,
terms, and conditions to obtain interconnection without having to engage in
negotiations with the
major supplier;
telecommunications means the transmission and reception of signals by any
electromagnetic
means, including by photonic means;
telecommunications regulatory body means a national body responsible for
the regulation of telecommunications; and
user means an end-user or a supplier of public telecommunications
services.
Annex 13
Specific Commitments of Costa Rica on Telecommunications Services
I. Preamble
The Government of the Republic of Costa Rica:
acknowledging the unique nature of the Costa Rican social policy on
telecommunications, and
reaffirming its decision to ensure that the process of opening its
telecommunications services
sector must be based on its Constitution;
emphasizing that such process shall be to the benefit of the user and shall
be based on the
principles of graduality, selectivity, and regulation, and in strict
conformity with the social
objectives of universality and solidarity in the supply of telecommunications
services; and
recognizing its commitment to strengthen and modernize the Instituto
Costarricense de
Electricidad (ICE) as a market participant in a competitive
telecommunications marketplace
while ensuring that the use of its infrastructure shall be remunerated and to
develop a regulatory
body to oversee market development;
undertakes through this Annex the following specific commitments on
telecommunications
services.
II. Modernization of ICE
Costa Rica shall enact a new legal framework to strengthen ICE, through its
appropriate
modernization, no later than December 31, 2004.
III. Selective and Gradual Market Opening Commitments
1. Market Access Standstill Costa Rica shall allow service providers of another Party to supply
telecommunications services
on terms and conditions that are no less favorable than those established by
or granted pursuant
to its legislation in force on January 27, 2003.
2. Gradual and Selective Opening of Certain Telecommunications Services
(a) As provided in Annex I, Costa Rica shall allow telecommunications
services
providers of another Party, on a non-discriminatory basis, to effectively
compete
to supply directly to the customer, through the technology of their choice,
the
following telecommunications services in its territory:1
(i) private network services,2 no later than January 1,
2006;
(ii) Internet services,3 no later than January 1, 2006;
and
(iii) mobile wireless services,4 no later than January
1, 2007.
(b) Subparagraph (a) shall also apply to any other telecommunications service
that
Costa Rica may decide to allow in the future.
IV. Regulatory Principles5
The regulatory framework on telecommunications services that the Government
of Costa
Rica shall have in force as of January 1, 2006, shall conform, among others,
to the following
provisions:
1. Universal Service Costa Rica has the right to define the kind of universal service obligations
it wishes to maintain.
Such obligations will not be regarded as anti-competitive per se,
provided they are administered in
a transparent, non-discriminatory, and competitively neutral manner and are
not more burdensome
than necessary for the kind of universal service defined.
2. Independence of the Regulatory Authority Costa Rica shall establish or maintain a regulatory authority for
telecommunications services,
which shall be separate from and not accountable to any supplier of
telecommunications
services. Costa Rica shall ensure that its telecommunications regulatory
authority is authorized
to impose effective sanctions to enforce domestic measures relating to the
obligations set out in
this Annex. This regulatory authority may include jurisdiction over spectrum
management,
universal service, tariffing, and licensing of new market entrants. The
decisions and the
procedures of the regulatory authority shall be impartial with respect to all
market participants. 3. Transparency Costa Rica shall ensure that applicable procedures for interconnection to a
major supplier and
either its interconnection agreements or referenced interconnection offers
are made publicly
available. Costa Rica shall also make publicly available all licensing or
authorization criteria
and procedures required for telecommunications service suppliers, and the
terms and conditions
of all licenses or authorizations issued.
4. Allocation and Use of Scarce Resources Costa Rica shall ensure that procedures for the allocation and use of limited
resources, including
frequencies, numbers, and rights of way, are administered in an objective,
timely, transparent,
and non-discriminatory manner by a competent domestic authority.6 The Republic of Costa Rica
shall issue licenses for use of spectrum directly to the service providers,
in accordance with
article 121, item 14 of the Constitución Política de la República de Costa
Rica.
5. Regulated Interconnection
(a) Costa Rica shall ensure that public telecommunications services suppliers
of
another Party are provided interconnection with a major supplier in a timely
fashion, under non-discriminatory terms, conditions,7 and cost-oriented rates that
are transparent, reasonable, and having regard to economic feasibility.
(b) Costa Rica shall also ensure that a service supplier requesting
interconnection
with a major supplier has recourse to an independent domestic body,8 which may
be the regulatory authority referred to in paragraph 2, to resolve disputes
regarding appropriate terms, conditions, and rates for interconnection within
a
reasonable time.
6. Access to and Use of the Network
(a) Costa Rica shall ensure that enterprises of another Party have access to
and use of
any public telecommunications services, including leased circuits, offered in
its
territory or across its borders, on reasonable and non-discriminatory terms
and
conditions and are permitted to:
(i) purchase or lease and attach terminal or other equipment that interfaces
with a public telecommunications network;
(ii) provide services to individual or multiple end-users over leased or
owned
circuits;
(iii) connect owned or leased circuits with public telecommunications
networks and services in its territory, or across Costa Rica’s borders or
with circuits leased or owned by another person;
(iv) perform switching, signaling, processing, and conversion functions, and
use operating protocols of their choice; and
(v) use public telecommunications services for the movement of information
contained in databases or otherwise stored in machine-readable form in
the territory of any Party.
(b) Notwithstanding subparagraph (a), Costa Rica may take such measures as
are
necessary to ensure the security and confidentiality of messages or to
protect the
privacy of non-public personal data of subscribers to public
telecommunications
services, subject to the requirement that such measures are not applied in a
manner that would constitute a means of arbitrary or unjustifiable
discrimination
or disguised restriction on trade in services.
(c) Costa Rica shall also ensure that no condition is imposed on access to
and use of
public telecommunications networks or services, other than that necessary to
safeguard the public service responsibilities of providers of public
telecommunications networks or services, in particular their ability to make
their
networks or services available to the public generally, or protect the
technical
integrity of public telecommunications networks or services.
7. Provision of Information Services
(a) Costa Rica may not require an enterprise of another Party in its
territory that it
classifies9 as a supplier of information services and
that supplies such services
over facilities that it does not own to:
(i) supply such services to the public generally;
(ii) cost-justify rates for such services;
(iii) file tariffs for such services;
(iv) interconnect its networks with any particular customer for the supply of
such services; or
(v) conform to any particular standard or technical regulation for
interconnection other than that for interconnection to a public
telecommunications network.
(b) Notwithstanding subparagraph (a), Costa Rica may take any action referred
to in
clauses (i) through (v) to remedy a practice of a supplier of information
services
that it has found in a particular case to be anti-competitive under its law
or
regulations, or to otherwise promote competition or safeguard the interests
of
consumers.
8. Competition Costa Rica shall maintain appropriate measures for the purpose of preventing
suppliers who,
alone or together, are a major supplier from engaging in anti-competitive
practices, such as not
making available, on a timely basis, to suppliers of public
telecommunications services,
technical information about essential facilities and commercially relevant
information that is
necessary for them to provide public telecommunications services.
9. Submarine Cable Systems Costa Rica shall ensure reasonable and non-discriminatory treatment for
access to submarine
cable systems (including landing facilities) in its territory, where a
supplier is authorized to
operate such submarine cable system as a public telecommunications service.
10. Flexibility in the Choice of Technologies Costa Rica may not prevent suppliers of public telecommunications services
from having the
flexibility to choose the technologies that they use to supply their
services, subject to
requirements necessary to satisfy legitimate public policy interests.
Annex 13.3
Rural Telephone Suppliers
1. A state regulatory authority in the United States may exempt a rural local
exchange
carrier, as defined in section 251(f)(2) of the Communications Act of 1934,
as amended, from the
obligations contained in paragraphs 2 through 4 of Article 13.3 and from the
obligations
contained in Article 13.4.
2. Article 13.4 does not apply to rural telephone companies in the United
States, as defined
in section 3(37) of the Communications Act of 1934, as amended, unless
a state regulatory
authority orders otherwise.
3. El Salvador, Guatemala, Honduras, and Nicaragua may designate and exempt a
rural
telephone company in its territory from paragraphs 2 through 4 of
Article 13.3 and from Article 13.4, provided that the rural telephone company supplies public
telecommunications services to
fewer than two percent of the subscriber lines installed in the Party’s
territory. The number of
subscriber lines supplied by a rural telephone company includes all
subscriber lines supplied by
the company, and by its owners, subsidiaries, and affiliates.
4. Nothing in this Annex shall be construed to preclude a Party from imposing
the
requirements set out in Article 13.4 on rural telephone companies.
Annex 13.4.5
Interconnection
1. For any Party that does not have an existing commitment under the GATS to
ensure that
a major supplier in its territory provides interconnection at cost-oriented
rates, the obligation
under Article 13.4.5 to ensure the provision of cost-oriented interconnection
shall become
effective:
(a) two years after the date of entry into force of this Agreement; or
(b) January 1, 2007,
whichever is earlier.
2. During the transition period, each such Party shall ensure that major
suppliers of public
telecommunications services in its territory:
(a) do not charge interconnection rates above the rates charged on December
31,
2003; and
(b) proportionally reduce interconnection rates as necessary to ensure that a
cost-oriented
interconnection rate has been achieved by the end of the transition
period.
Annex 13.4.8
Access to Rights-of-Way
Article 13.4.8 shall apply with respect to El Salvador beginning when its law
provides
that poles, ducts, conducts, and rights-of-way constitute essential
resources.
Chapter Fourteen Electronic Commerce Article 14.1: General
1. The Parties recognize the economic growth and opportunity that electronic
commerce provides, the importance of avoiding barriers to its use and development,
and the applicability of WTO rules to measures affecting electronic commerce. 2. For greater certainty, nothing in this Chapter shall be construed to
prevent a Party from imposing internal taxes, directly or indirectly, on digital products,
provided they are imposed in a manner consistent with this Agreement.
Article 14.2: Electronic Supply of Services
For greater certainty, the Parties affirm that measures affecting the supply
of a service using electronic means fall within the scope of the obligations contained in
the relevant provisions of Chapters Ten (Investment),
Eleven (Cross-Border Trade in
Services), and Twelve (Financial Services), subject to any exceptions or non-conforming measures
set out in this Agreement, which are applicable to such obligations.
Article 14.3: Digital Products
1. No Party may impose customs duties, fees, or other charges on or in
connection with the importation or exportation of digital products by electronic transmission. 2. For purposes of determining applicable customs duties, each Party shall
determine the customs value of an imported carrier medium bearing a digital product based
on the cost or value of the carrier medium alone, without regard to the cost or value of the
digital product stored on the carrier medium. 3. No Party may accord less favorable treatment to some digital products
transmitted electronically than it accords to other like digital products transmitted
electronically:
(a) on the basis that
(i) the digital products receiving less favorable treatment are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms outside its territory; or
(ii) the author, performer, producer, developer, or distributor of such
digital products is a person of another Party or non-Party,
or (b) so as otherwise to afford protection to the other like digital products
that are created, produced, published, stored, transmitted, contracted for,
commissioned, or first made available on commercial terms in its territory.1
4. No Party may accord less favorable treatment to digital products
transmitted electronically:
(a) that are created, produced, published, stored, transmitted, contracted
for, commissioned, or first made available on commercial terms in the territory
of another Party than it accords to like digital products transmitted
electronically that are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory
of a non-Party; or (b) whose author, performer, producer, developer, or distributor is a person
of another Party than it accords to like digital products transmitted electronically
whose author, performer, producer, developer, or distributor is a person of a
non-Party. 5. Paragraphs 3 and 4 do not apply to any non-conforming measure described
in Articles 10.13 (Non-Conforming Measures),
11.6 (Non-Conforming Measures), or
12.9
(Non-Conforming Measures).
Article 14.4: Transparency
Each Party shall publish or otherwise make available to the public its laws,
regulations, and other measures of general application that pertain to electronic
commerce.
Article 14.5: Cooperation
Recognizing the global nature of electronic commerce, the Parties affirm the
importance of:
(a) working together to overcome obstacles encountered by small and medium enterprises in using electronic commerce; (b) sharing information and experiences on laws, regulations, and programs
in the sphere of electronic commerce, including those related to data privacy,
consumer confidence in electronic commerce, cyber-security, electronic signatures, intellectual property rights, and electronic government; (c) working to maintain cross-border flows of information as an essential
element in fostering a vibrant environment for electronic commerce; (d) encouraging the private sector to adopt self-regulation, including
through codes of conduct, model contracts, guidelines, and enforcement mechanisms that foster electronic commerce; and (e) actively participating in hemispheric and multilateral fora to promote
the development of electronic commerce.
Article 14.6: Definitions
For purposes of this Chapter:
carrier medium means any physical object capable of storing the digital
codes that form a digital product by any method now known or later developed, and from which a
digital product can be perceived, reproduced, or communicated, directly or indirectly, and
includes an optical medium, a floppy disk, and a magnetic tape;
digital products means computer programs, text, video, images, sound
recordings, and other products that are digitally encoded;2
electronic means means employing computer processing; and
electronic transmission or transmitted electronically means the
transfer of digital products using any electromagnetic or photonic means.
Chapter Fifteen Intellectual Property Rights Article 15.1: General Provisions
1. Each Party shall, at a minimum, give effect to this Chapter. A Party may,
but shall not be obliged to, implement in its domestic law more extensive
protection and enforcement of intellectual property rights than is required
under this Chapter, provided that such protection and enforcement does not
contravene this Chapter. 2. Each Party shall ratify or accede to the following agreements by the date
of entry into force of this Agreement: (a) the WIPO Copyright Treaty (1996); and (b) the WIPO Performances and Phonograms Treaty (1996). 3. Each Party shall ratify or accede to the following agreements by January
1, 2006: (a) the Patent Cooperation Treaty, as revised and amended (1970);
and (b) the Budapest Treaty on the International Recognition of the
Deposit of Microorganisms for the Purposes of Patent Procedure (1980). 4. Each Party shall ratify or accede to the following agreements by January
1, 2008: (a) the Convention Relating to the Distribution of
Programme-Carrying Signals Transmitted by Satellite (1974); and (b) the Trademark Law Treaty (1994). 5.
(a) Each Party shall ratify or accede to the International Convention
for the Protection of New Varieties of Plants (1991) (UPOV Convention 1991).1
Nicaragua shall do so by January 1, 2010. Costa Rica shall do so by June 1,
2007. All other Parties shall do so by January 1, 2006. (b) Subparagraph (a) shall not apply to any Party that provides
effective patent protection for plants by the date of entry into force
of this Agreement. Such Parties shall make all reasonable efforts to
ratify or accede to the UPOV Convention 1991.
6. Each Party shall make all reasonable efforts to ratify or accede to the
following agreements:
(a) the Patent Law Treaty (2000); (b) the Hague Agreement Concerning the International Registration
of Industrial Designs (1999); and (c) the Protocol Relating to the Madrid Agreement Concerning the
International Registration of Marks (1989).
7. Further to Article 1.3 (Relation to Other Agreements), the Parties affirm
their existing rights and obligations under the TRIPS Agreement and intellectual
property agreements concluded or administered under the auspices of the World
Intellectual Property Organization (WIPO) and to which they are party. 8. In respect of all categories of intellectual property covered in this
Chapter, each Party shall accord to nationals2 of the other Parties treatment no
less favorable than it accords to its own nationals with regard to the
protection3 and enjoyment of such intellectual property rights and any benefits
derived from such rights. 9. A Party may derogate from paragraph 8 in relation to its judicial and
administrative procedures, including any procedure requiring a national of
another Party to designate for service of process an address in its territory or
to appoint an agent in its territory, provided that such derogation: (a) is necessary to secure compliance with laws and regulations that are not
inconsistent with this Chapter; and (b) is not applied in a manner that would constitute a disguised
restriction on trade. 10. Paragraph 8 does not apply to procedures provided in multilateral
agreements to which the Parties are party concluded under the auspices of WIPO
in relation to the acquisition or maintenance of intellectual property rights.
11. Except as it provides otherwise, this Chapter gives rise to obligations
in respect of all subject matter existing on the date of entry into force of
this Agreement that is protected on that date in the Party where protection is
claimed, or that meets or comes subsequently to meet the criteria for protection
under this Chapter. 12. Except as otherwise provided in this Chapter, a Party shall not be
required to restore protection to subject matter that on the date of entry into
force of this Agreement has fallen into the public domain in the Party where the
protection is claimed. 13. This Chapter does not give rise to obligations in respect of acts that
occurred before the date of entry into force of this Agreement. 14. Each Party shall ensure that all laws, regulations, and procedures
concerning the protection or enforcement of intellectual property rights shall
be in writing and shall be published,4 or where such publication is not
practicable, made publicly available, in a national language in such a manner as
to enable governments and right holders to become acquainted with them, with the
object of making the protection and enforcement of intellectual property rights
transparent. 15. Nothing in this Chapter shall be construed to prevent a Party from
adopting measures necessary to prevent anticompetitive practices that may result
from the abuse of the intellectual property rights set out in this Chapter,
provided that such measures are consistent with this Chapter. 16. Recognizing the Parties’ commitment to trade capacity building as
reflected in the establishment of the Committee on Trade Capacity Building under
Article 19.4 (Committee on Trade Capacity Building) and the importance of trade
capacity building activities, the Parties shall cooperate through that Committee
in the following initial capacity-building priority activities, on mutually
agreed terms and conditions, and subject to the availability of appropriated
funds:
(a) educational and dissemination projects on the use of intellectual
property as a research and innovation tool, as well as on the enforcement of
intellectual property rights; (b) appropriate coordination, training, specialization courses, and exchange
of information between the intellectual property offices and other institutions
of the Parties; and (c) enhancing the knowledge, development, and implementation
of the electronic systems used for the management of intellectual property.
Article 15.2: Trademarks
1. Each Party shall provide that trademarks shall
include collective, certification, and sound marks, and may include geographical
indications and scent marks. A geographical indication is capable of
constituting a mark to the extent that the geographical indication consists of
any sign, or any combination of signs, capable of identifying a good or service
as originating5 in the territory of a Party, or a region
or locality in that territory, where a given quality, reputation, or other
characteristic of the good or service is essentially attributable to its
geographical origin. 2. In view of the obligations of Article 20 of the TRIPS
Agreement, each Party shall ensure that measures mandating the use of the term
customary in common language as the common name for a good or service (“common
name”) including, inter alia, requirements concerning the relative size,
placement, or style of use of the trademark in relation to the common name, do
not impair the use or effectiveness of trademarks used in relation to such
goods. 3. Each Party shall provide that the owner of a registered trademark
shall have the exclusive right to prevent all third parties not having the
owner’s consent from using in the course of trade identical or similar signs,
including geographical indications, for goods or services that are related to
those goods or services in respect of which the owner’s trademark is registered,
where such use would result in a likelihood of confusion. In case of the use of
an identical sign, including a geographical indication, for identical goods or
services, a likelihood of confusion shall be presumed. 4. Each Party may provide
limited exceptions to the rights conferred by a trademark, such as fair use of
descriptive terms, provided that such exceptions take account of the legitimate
interest of the owner of the trademark and of third parties. 5. Article 6bis
of the Paris Convention for the Protection of Industrial Property (1967) (Paris Convention) shall apply, mutatis mutandis, to goods or
services that are not identical or similar to those identified by a well-known
trademark,6 whether registered or not, provided that use
of that trademark in relation to those goods or services would indicate a
connection between those goods or services and the owner of the trademark, and provided that the
interests of the owner of the trademark are likely to be damaged by such use.
6. Each Party shall provide a system for the registration of trademarks,
which shall include: (a) providing to the applicant a communication in writing, which may
be electronic, of the reasons for any refusal to register a trademark;
(b) an opportunity for the applicant to respond to communications
from the trademark authorities, to contest an initial refusal, and to
appeal judicially a final refusal to register; (c) an opportunity for interested parties to petition to oppose a
trademark application or to seek cancellation of a trademark after it
has been registered; and (d) a requirement that decisions in opposition or cancellation
proceedings be reasoned and in writing. 7. Each Party shall provide, to the maximum degree practical, a system for
the electronic application, processing, registration, and maintenance of
trademarks, and work to provide, to the maximum degree practical, a publicly
available electronic database – including an on-line database – of trademark
applications and registrations. 8.
(a) Each Party shall provide that each registration or publication
that concerns a trademark application or registration and that indicates
goods or services shall indicate the goods or services by their common
names, grouped according to the classes of the classification
established by the Nice Agreement Concerning the International
Classification of Goods and Services for the Purposes of the
Registration of Marks (1979), as revised and amended (Nice
Classification). (b) Each Party shall provide that goods or services may not be
considered as being similar to each other solely on the ground that, in
any registration or publication, they appear in the same class of the
Nice Classification. Conversely, each Party shall provide that goods or
services may not be considered as being dissimilar from each other
solely on the ground that, in any registration or publication, they
appear in different classes of the Nice Classification.
9. Each Party shall provide that initial registration and each renewal of registration of a trademark shall be for a term of no less than ten years. 10. No Party may require recordal of trademark licenses to establish the
validity of the license, to assert any rights in a trademark, or for other
purposes.7
Article 15.3: Geographical Indications Definition
1. For purposes of this Article, geographical indications are indications
that identify a good as originating in the territory of a Party, or a region or
locality in that territory, where a given quality, reputation, or other
characteristic of the good is essentially attributable to its geographical
origin. Any sign or combination of signs, in any form whatsoever, shall be
eligible to be a geographical indication.
Procedures with Respect to Geographical Indications
2. Each Party shall provide the legal means to identify8 and protect
geographical indications of the other Parties that meet the criteria of
paragraph 1. Each Party shall provide the means for persons of another Party to
apply for protection or petition for recognition of geographical indications.
Each Party shall accept applications and petitions from persons of another Party
without the requirement for intercession by that Party on behalf of its persons. 3. Each Party shall process applications or petitions, as the case may be,
for geographical indications with a minimum of formalities. 4. Each Party shall make its regulations governing filing of such
applications or petitions, as the case may be, readily available to the public.
5. Each Party shall ensure that applications or petitions, as the case may
be, for geographical indications are published for opposition, and shall provide
procedures for opposing geographical indications that are the subject of
applications or petitions. Each Party shall also provide procedures to cancel
any registration resulting from an application or a petition. 6. Each Party shall ensure that measures governing the filing of applications
or petitions, as the case may be, for geographical indications set out clearly
the procedures for these actions. Each Party shall make available contact
information sufficient to allow (a) the general public to obtain guidance
concerning the procedures for filing applications or petitions and the
processing of those applications or petitions in general; and (b) applicants,
petitioners, or their representatives to ascertain the status of, and to obtain procedural guidance
concerning, specific applications and petitions.
Relationship between Trademarks and Geographical Indications
7. Each Party shall ensure that grounds for refusing protection or
recognition of a geographical indication include the following: (a) the geographical indication is likely to be confusingly similar
to a trademark that is the subject of a good-faith pending application
or registration; and (b) the geographical indication is likely to be confusingly similar
to a pre-existing trademark, the rights to which have been acquired in
accordance with the Party’s law.9
Article 15.4: Domain Names on the Internet
1. In order to address trademark cyber-piracy, each Party shall require that
the management of its country-code top-level domain (ccTLD) provides an
appropriate procedure for the settlement of disputes based on the principles
established in the Uniform Domain-Name Dispute-Resolution Policy. 2. Each Party shall require that the management of its ccTLD provides on-line
public access to a reliable and accurate database of contact information for
domain-name registrants. In determining the appropriate contact information, the
management of a Party’s ccTLD may give due regard to the Party’s laws protecting
the privacy of its nationals.
Article 15.5: Obligations Pertaining to Copyright and Related Rights
1. Each Party shall provide that authors, performers, and producers of
phonograms10 have the right11 to authorize or prohibit all reproductions of
their works, performances, or phonograms, in any manner or form, permanent or temporary (including
temporary storage in electronic form).12 2. Each Party
shall provide to authors, performers, and producers of phonograms the right to
authorize the making available to the public of the original and copies of their
works, performances, and phonograms13 through sale or
other transfer of ownership. 3. In order to ensure that no hierarchy is
established between rights of authors, on the one hand, and rights of performers
and producers of phonograms, on the other hand, each Party shall establish that
in cases where authorization is needed from both the author of a work embodied
in a phonogram and a performer or producer owning rights in the phonogram, the
need for the authorization of the author does not cease to exist because the
authorization of the performer or producer is also required. Likewise, each
Party shall establish that in cases where authorization is needed from both the
author of a work embodied in a phonogram and of a performer or producer owning
rights in the phonogram, the need for the authorization of the performer or
producer does not cease to exist because the authorization of the author is also
required. 4. Each Party shall provide that, where the term of protection of a
work (including a photographic work), performance, or phonogram is to be
calculated:
(a) on the basis of the life of a natural person, the term shall be
not less than the life of the author and 70 years after the author’s death; and (b) on a basis other than the life of a natural person, the term shall be:
(i)
not less than 70 years from the end of the calendar year of the first authorized
publication of the work, performance, or phonogram, or (ii) failing such
authorized publication within 50 years from the creation of the work,
performance, or phonogram, not less than 70 years from the end of the calendar
year of the creation of the work, performance, or phonogram.
5. Each Party shall
apply the provisions of Article 18 of the Berne Convention and Article 14.6 of
the TRIPS Agreement, mutatis mutandis, to the subject matter, rights, and
obligations provided for in this Article and Articles 15.6 and
15.7. 6. Each Party shall provide that for copyright and related rights:
(a) any
person acquiring or holding any economic right in a work, performance, or
phonogram may freely and separately transfer such right by contract; and (b) any
person acquiring or holding any such economic right by virtue of a contract,
including contracts of employment underlying the creation of works and
performances, and production of phonograms, shall be able to exercise such right
in that person’s own name and enjoy fully the benefits derived from such right.
7.
(a) In order to provide adequate legal protection and effective legal
remedies against the circumvention of effective technological measures that
authors, performers, and producers of phonograms use in connection with the
exercise of their rights and that restrict unauthorized acts in respect of their
works, performances, and phonograms, each Party shall provide that any person
who:
(i) circumvents without authority any effective technological measure that
controls access to a protected work, performance, phonogram, or other subject
matter; or (ii) manufactures, imports, distributes, offers to the public,
provides, or otherwise traffics in devices, products, or components, or offers
to the public or provides services, that:
(A) are promoted, advertised, or
marketed for the purpose of circumvention of any effective technological
measure; or (B) have only a limited commercially significant purpose or use
other than to circumvent any effective technological measure; or (C) are
primarily designed, produced, or performed for the purpose of enabling or
facilitating the circumvention of any effective technological measure,
shall be
liable and subject to the remedies provided for in Article 15.11.14. Each Party
shall provide for criminal procedures and penalties to be applied when any
person, other than a nonprofit library, archive, educational institution, or
public non-commercial broadcasting entity, is found to have engaged willfully
and for purposes of commercial advantage or private financial gain in any of the
foregoing activities.
(b) In implementing subparagraph (a), no Party shall be
obligated to require that the design of, or the design and selection of parts
and components for, a consumer electronics, telecommunications, or computing
product provide for a response to any particular technological measure, so long as the product does not
otherwise violate any measures implementing subparagraph (a). (c) Each Party
shall provide that a violation of a measure implementing this paragraph is a
separate civil cause of action or criminal offense, independent of any
infringement that might occur under the Party’s law on copyright and related
rights. (d) Each Party shall confine exceptions to any measures implementing the
prohibition in subparagraph (a)(ii) on technology, products, services, or
devices that circumvent effective technological measures that control access to,
and, in the case of clause (i), that protect any of the exclusive rights of
copyright or related rights in, a protected work, performance, or phonogram
referred to in subparagraph (a)(ii), to the following activities, provided that
they do not impair the adequacy of legal protection or the effectiveness of
legal remedies against the circumvention of effective technological measures:
(i) noninfringing reverse engineering activities with regard to a lawfully
obtained copy of a computer program, carried out in good faith with respect to
particular elements of that computer program that have not been readily
available to the person engaged in those activities, for the sole purpose of
achieving interoperability of an independently created computer program with
other programs; (ii) noninfringing good faith activities, carried out by an
appropriately qualified researcher who has lawfully obtained a copy, unfixed
performance or display of a work, performance, or phonogram, and who has made a
good faith effort to obtain authorization for such activities, to the extent
necessary for the sole purpose of identifying and analyzing flaws and
vulnerabilities of technologies for scrambling and descrambling of information; (iii) the inclusion of a component or part for the sole purpose of preventing
the access of minors to inappropriate on-line content in a technology, product,
service, or device that itself is not prohibited under the measures implementing
subparagraph (a)(ii); and (iv) noninfringing good faith activities that are
authorized by the owner of a computer, computer system, or computer network for
the sole purpose of testing, investigating, or correcting the security of that
computer, computer system, or computer network.
(e) Each Party shall confine
exceptions to any measures implementing the prohibition referred to in
subparagraph (a)(i) to the activities listed in subparagraph (d) and the
following activities, provided that they do not impair the adequacy of legal protection or the effectiveness of legal remedies against the circumvention
of effective technological measures:
(i) access by a nonprofit library, archive,
or educational institution to a work, performance, or phonogram, not otherwise
available to it, for the sole purpose of making acquisition decisions; (ii)
noninfringing activities for the sole purpose of identifying and disabling a
capability to carry out undisclosed collection or dissemination of personally
identifying information reflecting the on-line activities of a natural person in
a way that has no other effect on the ability of any person to gain access to
any work; and (iii) noninfringing uses of a work, performance, or phonogram, in
a particular class of works, performances, or phonograms, when an actual or
likely adverse impact on those noninfringing uses is demonstrated in a
legislative or administrative proceeding by substantial evidence; provided that
in order for any such exception to remain in effect for more than four years, a
Party must conduct a review before the expiration of the four-year period and at
intervals of at least every four years thereafter, pursuant to which it is
demonstrated in such a proceeding by substantial evidence that there is a
continuing actual or likely adverse impact on the particular noninfringing use.
(f) Each Party may provide exceptions to any measures implementing the
prohibitions referred to in subparagraph (a) for lawfully authorized activities
carried out by government employees, agents, or contractors for law enforcement,
intelligence, essential security, or similar governmental purposes. (g) Effective technological measure means any technology, device, or component
that, in the normal course of its operation, controls access to a protected
work, performance, phonogram, or other protected subject matter, or protects any
copyright or any rights related to copyright.
8. In order to provide adequate
legal protection and effective legal remedies to protect rights management
information:
(a) Each Party shall provide that any person who, without
authority, and knowing, or, with respect to civil remedies, having reasonable
grounds to know, that it would induce, enable, facilitate, or conceal an
infringement of any copyright or related right,
(i) knowingly removes or alters
any rights management information; (ii) distributes or imports for distribution rights management information
knowing that the rights management information has been removed or altered
without authority; or (iii) distributes, imports for distribution, broadcasts,
communicates or makes available to the public copies of works, performances, or
phonograms, knowing that rights management information has been removed or
altered without authority, shall be liable and subject to the remedies provided
for in Article 15.11.14. Each Party shall provide for criminal procedures and
penalties to be applied when any person, other than a nonprofit library,
archive, educational institution, or public non-commercial broadcasting entity,
is found to have engaged willfully and for purposes of commercial advantage or
private financial gain in any of the foregoing activities.
(b) Each Party shall
confine exceptions to measures implementing subparagraph (a) to lawfully
authorized activities carried out by government employees, agents, or
contractors for law enforcement, intelligence, national defense, essential
security, or similar governmental purposes. (c) Rights management information
means:
(i) information that identifies a work, performance, or phonogram,
the author of the work, the performer of the performance, or the producer of the
phonogram, or the owner of any right in the work, performance, or phonogram; or (ii) information about the terms and conditions of the use of the work,
performance, or phonogram; or (iii) any numbers or codes that represent such
information, when any of these items is attached to a copy of the work,
performance, or phonogram or appears in connection with the communication or
making available of a work, performance, or phonogram to the public. Nothing in
this paragraph shall obligate a Party to require the owner of any right in the
work, performance, or phonogram to attach rights management information to
copies of the work, performance, or phonogram, or to cause rights management
information to appear in connection with a communication of the work,
performance, or phonogram to the public.
9. In order to confirm that all
agencies at the central level of government use computer software only as
authorized, each Party shall issue appropriate laws, orders, regulations, or decrees to actively regulate the acquisition and management of software for
such use. These measures may take the form of procedures such as preparing and
maintaining inventories of software on agency computers and inventories of
software licenses. 10.
(a) With respect to Articles 15.5,
15.6, and 15.7, each
Party shall confine limitations or exceptions to exclusive rights to certain
special cases that do not conflict with a normal exploitation of the work,
performance, or phonogram, and do not unreasonably prejudice the legitimate
interests of the right holder. (b) Notwithstanding subparagraph (a) and
Article 15.7.3(b), no Party may permit the retransmission of television signals
(whether terrestrial, cable, or satellite) on the Internet without the
authorization of the right holder or right holders of the content of the signal
and, if any, of the signal.
Article 15.6: Obligations Pertaining Specifically
to Copyright Without prejudice to Articles 11(1)(ii), 11bis(1)(i) and
(ii), 11ter(1)(ii), 14(1)(ii), and 14bis(1) of the Berne
Convention, each Party shall provide to authors the exclusive right to authorize
or prohibit the communication to the public of their works, directly or
indirectly, by wire or wireless means, including the making available to the
public of their works in such a way that members of the public may access these
works from a place and at a time individually chosen by them. Article 15.7:
Obligations Pertaining Specifically to Related Rights
1. Each Party shall
accord the rights provided for in this Chapter with respect to performers and
producers of phonograms to the performers and producers of phonograms who are
nationals of another Party and to performances or phonograms first published or
fixed in the territory of a Party. A performance or phonogram shall be
considered first published in the territory of a Party in which it is published
within 30 days of its original publication.14 2. Each
Party shall provide to performers the right to authorize or prohibit:
(a) the
broadcasting and communication to the public of their unfixed performances
except where the performance is already a broadcast performance; and (b) the
fixation of their unfixed performances.
3.
(a) Each Party shall provide to
performers and producers of phonograms the right to authorize or prohibit the
broadcasting or any communication to the public of their performances or
phonograms, by wire or wireless means, including the making available to the
public of those performances and phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.
(b) Notwithstanding subparagraph (a) and
Article 15.5.10, the application of this right to traditional free over-the-air noninteractive broadcasting, and exceptions or limitations to this
right for such broadcasting, shall be a matter of domestic law.
(c) Each Party may adopt limitations to this right in respect of other noninteractive transmissions in accordance with
Article 15.5.10, provided that the limitations do not prejudice the right
of the performer or producer of phonograms to obtain equitable remuneration. 4. No Party may subject the enjoyment and exercise of the rights of performers and producers of phonograms provided for in this Chapter to any formality.
5. For purposes of this Article and Article 15.5, the following definitions apply with respect to performers and producers of phonograms:
(a) performers means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions
of folklore; (b) phonogram means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or
other audiovisual work; (c) fixation means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device; (d)
producer of a phonogram means the person, or the legal entity, who or which takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other
sounds, or the representations of sounds; (e) publication of a performance or a phonogram means the offering of copies of the fixed performance or the phonogram to the public, with the consent of the right holder, and provided that
copies are offered to the public in reasonable quantity; (f) broadcasting means the transmission by wireless means or satellite to the public of sounds or sounds and images, or of the representations thereof, including wireless transmission of
encrypted signals where the means for decrypting are provided to the public by the broadcasting organization or with its consent; and (g) communication to the public of a performance or a phonogram means the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For purposes of paragraph 3, “communication to the public” includes making the sounds or
representations of sounds fixed in a phonogram audible to the public. Article 15.8: Protection of Encrypted Program-Carrying
Satellite Signals
1. Each Party shall make it a criminal offense:
(a) to manufacture, assemble, modify, import, export, sell, lease, or otherwise distribute a tangible or intangible device or system, knowing or having reason to know that the device or
system is primarily of assistance in decoding an encrypted program-carrying satellite signal without the authorization of the lawful distributor of such signal; and (b) willfully to receive
and further distribute a program-carrying signal that originated as an encrypted satellite signal knowing that it has been decoded without the authorization of the lawful distributor of the
signal.
2. Each Party shall provide for civil remedies, including compensatory damages, for any person injured by any activity described in paragraph 1, including any person that holds an interest
in the encrypted programming signal or its content.
Article 15.9: Patents
1. Each Party shall make patents available for any invention, whether a product or a process, in all fields of technology, provided
that the invention is new, involves an inventive step, and is capable of industrial application. For purposes of this Article, a Party may treat the terms “inventive step” and “capable of
industrial application” as being synonymous with the terms “non-obvious” and “useful,” respectively. 2. Nothing in this Chapter shall be construed to prevent a Party from
excluding inventions from patentability as set out in Articles 27.2 and 27.3 of the TRIPS Agreement. Notwithstanding the foregoing, any Party that does not provide patent protection for plants
by the date of entry into force of this Agreement shall undertake all reasonable efforts to make such patent protection available. Any Party that provides patent protection for plants or animals
on or after the date of entry into force of this Agreement shall maintain such protection. 3. A Party may provide limited exceptions to the exclusive rights conferred by a patent, provided
that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the
legitimate interests of third parties. 4. Without prejudice to Article 5.A(3) of the Paris Convention, each Party shall provide that a patent may be revoked or cancelled only
on grounds that would have justified a refusal to grant the patent. However, a Party may also provide that fraud, misrepresentation, or inequitable conduct may be the basis for revoking, canceling, or
holding a patent unenforceable. 5. Consistent with paragraph 3, if a Party permits a third person to use the subject matter of a subsisting patent to generate information necessary to support
an application for marketing approval of a pharmaceutical or agricultural chemical product, that Party shall provide that any product produced under such authority shall not be made, used, or
sold in the territory of that Party other than for purposes related to generating information to meet requirements for approval to market the product once the patent expires, and if the Party
permits exportation, the product shall only be exported outside the territory of that Party for purposes of meeting marketing approval requirements of that Party.
6.
(a) Each Party, at the request of the patent owner, shall adjust the term of a patent to compensate for unreasonable delays that occur in granting the patent. For purposes
of this paragraph, an unreasonable delay shall at least include a delay in the issuance of the patent of more than five years from the date of filing of the application in the territory of the
Party, or three years after a request for examination of the application has been made, whichever is later, provided that periods attributable to actions of the patent applicant need not be
included in the determination of such delays. (b) With respect to any pharmaceutical product that is covered by a patent, each Party shall make available a restoration of
the patent term to compensate the patent owner for unreasonable curtailment of the effective patent term resulting from the marketing approval process related to the first commercial marketing
of the product in that Party.
7. Each Party shall disregard information contained in public disclosures used to determine if an invention is novel or has an inventive step if the public disclosure (a) was
made or authorized by, or derived from, the patent applicant, and (b) occurred within 12 months prior to the date of filing of the application in the territory of the Party.
8. Each Party shall provide patent applicants with at least one opportunity to submit amendments, corrections, and observations in connection with their applications. 9. Each
Party shall provide that a disclosure of a claimed invention shall be considered to be sufficiently clear and complete if it provides information that allows the invention to be made and used
by a person skilled in the art, without undue experimentation, as of the filing date. 10. Each Party shall provide that a claimed invention is sufficiently supported by its
disclosure if the disclosure reasonably conveys to a person skilled in the art that the applicant was in possession of the claimed invention as of the filing date. 11. Each
Party shall provide that a claimed invention is industrially applicable if it has a specific, substantial, and credible utility.
Article 15.10: Measures Related to Certain Regulated Products
1.
(a) If a Party requires, as a condition of approving the marketing of a new pharmaceutical or agricultural chemical product, the submission of undisclosed data concerning
safety or efficacy, the Party shall not permit third persons, without the consent of the person who provided the information, to market a product on the basis of (1) the information, or (2)
the approval granted to the person who submitted the information for at least five years for pharmaceutical products and ten years for agricultural chemical products from the date of approval
in the Party.15 (b) If a Party permits, as a condition of approving the marketing of a new pharmaceutical or agricultural chemical product,
third persons to submit evidence concerning the safety or efficacy of a product that was previously approved in another territory, such as evidence of prior marketing approval, the Party shall
not permit third persons, without the consent of the person who previously obtained such approval in the other territory, to obtain authorization or to market a product on the basis of (1)
evidence of prior marketing approval in the other territory, or (2) information concerning safety or efficacy that was previously submitted to obtain marketing approval in the other territory,
for at least five years for pharmaceutical products and ten years for agricultural chemical products from the date approval was granted in the Party’s territory to the person who received
approval in the other territory. In order to receive protection under this subparagraph, a Party may require that the person providing the information in the other territory seek approval in
the territory of the Party within five years after obtaining marketing approval in the other territory. (c) For purposes of this paragraph, a new product is one that does
not contain a chemical entity that has been previously approved in the territory of the Party. (d) For purposes of this paragraph, each Party shall protect such undisclosed
information against disclosure except where necessary to protect the public, and no Party may consider information accessible within the public domain as undisclosed data. Notwithstanding the
foregoing, if any undisclosed information concerning safety and efficacy submitted to a Party, or an entity acting on behalf of a Party, for purposes of obtaining marketing approval is
disclosed by such entity, the Party is still required to protect such information from unfair commercial use in the manner set forth in this Article.
2. Where a Party permits, as a condition of approving the marketing of a pharmaceutical product, persons, other than the person originally submitting safety or efficacy
information, to rely on evidence or information concerning the safety and efficacy of a product that was previously approved, such as evidence of prior marketing approval in the territory of
a Party or in another country, that Party:
(a) shall implement measures in its marketing approval process to prevent such other persons from marketing a product covered by a patent claiming the previously approved
product or its approved use during the term of that patent, unless by consent or acquiescence of the patent owner; and (b) shall provide that the patent owner shall be
informed of the request and the identity of any such other person who requests approval to enter the market during the term of a patent identified as claiming the approved product or its
approved use.
Article 15.11: Enforcement of Intellectual Property Rights General Obligations
1. Each Party understands that procedures and remedies required under this Article for enforcement of intellectual property rights are established in accordance with:
(a) the principles of due process that each Party recognizes; and (b) the foundations of its own legal system.
2. This Article does not create any obligation:
(a) to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general; or
(b) with respect to the distribution of resources for the enforcement of intellectual property rights and the enforcement of law in general.
The Parties understand that the decisions that a Party makes on the distribution of enforcement resources shall not excuse that Party from complying with this Chapter.
3. Each Party shall provide that final judicial decisions or administrative rulings of general applicability pertaining to the enforcement of intellectual property rights
shall be in writing and shall state any relevant findings of fact and the reasoning or the legal basis on which the decisions and rulings are based. Each Party shall provide that such
decisions or rulings shall be
published,16 or where such publication is not practicable, otherwise made publicly available, in a national language in such a manner as
to enable governments and right holders to become acquainted with them. 4. Each Party shall publicize information that it may collect on its efforts to provide effective
enforcement of intellectual property rights in its civil, administrative, and criminal system, including any statistical information. 5. In civil, administrative, and
criminal proceedings involving copyright or related rights, each Party shall provide that:
(a) the person whose name is indicated as the author, producer, performer, or publisher of the work, performance, or phonogram in the usual manner, shall, in the absence
of proof to the contrary, be presumed to be the designated right holder in such work, performance, or phonogram; and (b) it shall be presumed, in the absence of proof to
the contrary, that the copyright or related right subsists in such subject matter.
Civil and Administrative Procedures and Remedies 6. Each Party shall make available to right holders17 civil judicial procedures concerning the
enforcement of any intellectual property right. 7. Each Party shall provide that:
(a) in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to order the infringer to
pay the right holder:
(i) damages adequate to compensate for the injury the right holder has suffered as a result of the infringement; and (ii) at least in the case of
copyright or related rights infringement and trademark counterfeiting, the profits of the infringer that are attributable to the infringement and are not taken into account in computing
the amount of the damages referred to in clause (i); and
(b) in determining damages for infringement of intellectual property rights, its judicial authorities shall consider, inter alia, the value of the infringed-upon good
or service based on the suggested retail price or other legitimate measure of value that the right holder presents.
8. In civil judicial proceedings, each Party shall, at least with respect to civil judicial proceedings concerning copyright or related rights infringement and trademark
counterfeiting, establish or maintain pre-established damages as an alternative to actual damages. Such pre-established damages shall be set out in domestic law and determined by the judicial
authorities in an amount sufficient to compensate the right holder for the harm caused by the infringement and constitute a deterrent to future infringements. 9. Each Party
shall provide that its judicial authorities, except in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings concerning copyright or
related rights infringement and trademark counterfeiting, that the prevailing party shall be awarded payment of court costs or fees and reasonable attorney’s fees by the losing party. Further,
each Party shall provide that its judicial authorities, at least in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings concerning
patent infringement, that the prevailing party be awarded payment of reasonable attorney’s fees by the losing party. 10. In civil judicial proceedings concerning copyright or
related right infringement and trademark counterfeiting, each Party shall provide that its judicial authorities shall have the authority to order the seizure of suspected infringing goods, any
related materials and implements, and, at least for trademark counterfeiting, documentary evidence relevant to the infringement. 11. Each Party shall provide that:
(a) its judicial authorities shall have the authority to order, at their discretion, the destruction of the goods that have been found to be pirated or counterfeit;
(b) its judicial authorities shall have the authority to order that materials and implements that have been used in the manufacture or creation of such pirated or counterfeit
goods be, without compensation of any sort, promptly destroyed or, in exceptional circumstances, without compensation of any sort, disposed of outside the channels of commerce in such a manner
as to minimize the risks of further infringements. In considering requests for such destruction, the Party’s judicial authorities may take into account, inter alia, the gravity of the
infringement, as well as the interests of third parties holding ownership, possessory, contractual, or secured interests; (c) the charitable donation of counterfeit trademark
goods and goods that infringe copyright and related rights shall not be ordered by the judicial authorities without the authorization of the right holder, except that counterfeit trademark
goods may in appropriate cases be donated to charity for use outside the channels of commerce when the removal of the trademark eliminates the infringing characteristic of the good and the good
is no longer identifiable with the removed trademark. In no case shall the simple removal of the trademark unlawfully affixed be sufficient to permit the release of goods into the channels of
commerce.
12. Each Party shall provide that in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority
to order the infringer to provide any information that the infringer possesses regarding any person involved in any aspect of the infringement and regarding the means of production or
distribution channel for the infringing goods or services, including the identification of third persons that are involved in their production and distribution and their distribution channels,
and to provide this information to the right holder. Each Party shall provide that its judicial authorities shall have the authority to impose sanctions, in appropriate cases, on a party to a
proceeding that fails to abide by valid orders issued by such authorities. 13. To the extent that any civil remedy can be ordered as a result of administrative procedures on
the merits of a case, each Party shall provide that such procedures conform to principles equivalent in substance to those provided for in this Chapter.
14. Each Party shall
provide for civil remedies against the acts described in
Article 15.5.7 and 15.5.8. Available civil remedies shall include at least:
(a) provisional measures, including seizure of devices and products suspected of being involved in the prohibited activity; (b) actual damages (plus any profits attributable to the prohibited activity not taken into account in computing the actual damages) or pre-established damages as provided in
paragraph 8; (c) payment to the prevailing right holder, at the conclusion of civil judicial proceedings, of court costs and fees and reasonable attorney’s fees by the party
engaged in the prohibited conduct; and (d) destruction of devices and products found to be involved in the prohibited activity, at the discretion of the judicial authorities,
as provided in subparagraphs (a) and (b) of paragraph 11.
No Party may make damages available against a nonprofit library, archives, educational institution, or public broadcasting entity that sustains the burden of proving that it
was not aware and had no reason to believe that its acts constituted a prohibited activity. 15. In civil judicial proceedings concerning the enforcement of intellectual
property rights, each Party shall provide that its judicial authorities shall have the authority to order a party to desist from an infringement, inter alia, to prevent the entry into the
channels of commerce in their jurisdiction of imported goods that involve the infringement of an intellectual property right, immediately after customs clearance of such goods or to prevent
their exportation. 16. In the event that a Party’s judicial or other authorities appoint technical or other experts in civil proceedings concerning the enforcement of
intellectual property rights and require that the parties bear the costs of such experts, the Party should seek to ensure that such costs are closely related, inter alia, to the quantity and
nature of work to be performed and do not unreasonably deter recourse to such proceedings. Provisional Measures 17. Each Party shall act on requests for
relief inaudita altera parte and execute such requests expeditiously, in accordance with its rules of judicial procedure. 18. Each Party shall provide that its judicial
authorities shall have the authority to require the plaintiff to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the
plaintiff’s right is being infringed or that such infringement is imminent, and to order the plaintiff to provide a reasonable security or equivalent assurance set at a level sufficient to
protect the defendant and to prevent abuse, and so as not to unreasonably deter recourse to such procedures. 19. In proceedings concerning the grant of provisional measures in
relation to enforcement of a patent, each Party shall provide for a rebuttable presumption that the patent is valid. Special Requirements Related to Border Measures 20. Each Party shall provide that any right holder initiating procedures for its competent authorities to suspend the release of suspected counterfeit or confusingly similar
trademark goods, or pirated copyright goods18 into free circulation is required to provide adequate evidence to satisfy the competent authorities that, under the laws of the country of
importation, there is prima facie an infringement of the right holder’s intellectual property right and to supply sufficient information that may reasonably be expected to be within the right
holder’s knowledge to make the suspected goods reasonably recognizable by the competent authorities. The requirement to provide sufficient information shall not unreasonably deter recourse to
these procedures. 21. Each Party shall provide that its competent authorities shall have the authority to require a right holder initiating procedures for suspension to
provide a reasonable security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Such security or equivalent assurance shall not
unreasonably deter recourse to these procedures. Each Party shall provide that such security may take a form of an instrument issued by a financial services provider to hold the importer or
owner of the imported merchandise harmless from any loss or damage resulting from any suspension of the release of goods in the event the competent authorities determine that the article is not
an infringing good. 22. Where its competent authorities have made a determination that goods are counterfeit or pirated, a Party shall grant its competent authorities the
authority to inform the right holder of the names and addresses of the consignor, the importer, and the consignee, and of the quantity of the goods in question. 23. Each Party
shall provide that its competent authorities may initiate border measures ex officio, with respect to imported, exported, or in-transit merchandise suspected of infringing an intellectual
property right, without the need for a formal complaint from a private party or right holder. 24. Each Party shall provide that goods that have been determined to be pirated
or counterfeit by its competent authorities shall be destroyed, pursuant as appropriate to judicial order, unless the right holder consents to an alternate disposition, except that counterfeit
trademark goods may in appropriate cases be donated to charity for use outside the channels of commerce, when the removal of the trademark eliminates the infringing characteristic of the good
and the good is no longer identifiable with the removed trademark. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient to
permit the release of the goods into the channels of commerce. In no event shall the competent authorities be authorized to permit the exportation of counterfeit or pirated goods or to permit
such goods to be subject to other customs procedures, except in exceptional circumstances. 25. Each Party shall provide that where an application fee or merchandise storage
fee is assessed in connection with border measures to enforce an intellectual property right, the fee shall not be set at an amount that unreasonably deters recourse to such measures.
Criminal Procedures and Remedies 26.
(a) Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy
on a commercial scale. Willful copyright or related rights piracy on a commercial scale includes significant willful infringements of copyright or related rights, for purposes of commercial
advantage or private financial gain, as well as willful infringements that have no direct or indirect motivation of financial gain, provided that there is more than a de minimis
financial harm. Each Party shall treat willful importation or exportation of counterfeit or pirated goods as unlawful activities and provide for criminal penalties to the same extent as the
trafficking or distribution of such goods in domestic commerce.19 (b) Specifically, each Party shall provide:
(i) remedies that include sentences of imprisonment or monetary fines, or both, sufficient to provide a deterrent to future acts of infringement. Each Party shall establish
policies or guidelines that encourage penalties to be imposed by judicial authorities at levels sufficient to provide a deterrent to future infringements; (ii) that its
judicial authorities shall have the authority to order the seizure of suspected counterfeit or pirated goods, any related materials and implements that have been used in the commission of the
offense, any assets traceable to the infringing activity, and any documentary evidence relevant to the offense. Each Party shall provide that items that are subject to seizure pursuant to any
such judicial order need not be individually identified so long as they fall within general categories specified in the order;
(iii) that its judicial authorities shall have the authority to order, among other measures, (1) the forfeiture of any assets traceable to the infringing activity, (2) the
forfeiture and destruction of all counterfeit or pirated goods, without compensation of any kind to the defendant, in order to prevent the re-entry of counterfeit and pirated goods into
channels of commerce, and (3) with respect to willful copyright or related rights piracy, the forfeiture and destruction of materials and implements that have been used in the creation of
the infringing goods; and (iv) that its authorities may, at least in cases of suspected trademark counterfeiting or copyright piracy, conduct investigations or exercise
other enforcement measures ex officio, without the need for a formal complaint by a private party or right holder, at least for the purpose of preserving evidence or preventing the
continuation of the infringing activity.
Limitations on Liability for Service Providers
27. For the purpose of providing enforcement procedures that permit effective action against any act of infringement of copyright20 covered
under this Chapter, including expeditious remedies to prevent infringements, and criminal and civil remedies that constitute a deterrent to further infringements, each Party shall provide,
consistent with the framework set out in this Article:
(a) legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and
transmission of copyrighted materials; and (b) limitations in its law regarding the scope of remedies available against service providers for copyright infringements that
they do not control, initiate or direct, and that take place through systems or networks controlled or operated by them or on their behalf, as set out in this subparagraph.21
(i) These limitations shall preclude monetary relief and provide reasonable restrictions on court-ordered relief to compel or restrain certain actions for the following
functions and shall be confined to those functions:
(A) transmitting, routing, or providing connections for material without modification of its content, or the intermediate and transient storage of such material in the course
thereof; (B) caching carried out through an automatic process; (C) storage at the direction of a user of material residing on a system or network controlled
or operated by or for the service provider; and (D) referring or linking users to an on-line location by using information location tools, including hyperlinks and
directories.
(ii) These limitations shall apply only where the service provider does not initiate the chain of transmission of the material and does not select the material or its
recipients (except to the extent that a function described in clause (i)(D) in itself entails some form of selection). (iii) Qualification by a service provider for the
limitations as to each function in clauses (i)(A) through (D) shall be considered separately from qualification for the limitations as to each other function, in accordance with the conditions
for qualification set forth in clauses (iv) through (vii). (iv) With respect to the function referred to in clause (i)(B), the limitations shall be conditioned on the
service provider:
(A) permitting access to cached material in significant part only to users of its system or network who have met conditions on user access to that material;
(B) complying with rules concerning the refreshing, reloading, or other updating of the cached material when specified by the person making the material available on-line
in accordance with a generally accepted industry standard data communications protocol for the system or network through which that person makes the material available; (C)
not interfering with technology consistent with industry standards accepted in the Party’s territory used at the originating site to obtain information about the use of the material, and not
modifying its content in transmission to subsequent users; and (D) expeditiously removing or disabling access, on receipt of an effective notification of claimed
infringement, to cached material that has been removed or access to which has been disabled at the originating site.
(v) With respect to functions referred to in clauses (i)(C) and (D), the limitations shall be conditioned on the service provider:
(A) not receiving a financial benefit directly attributable to the infringing activity, in circumstances where it has the right and ability to control such activity;
(B) expeditiously removing or disabling access to the material residing on its system or network on obtaining actual knowledge of the infringement or becoming aware of
facts or circumstances from which the infringement was apparent, such as through effective notifications of claimed infringement in accordance with clause (ix); and (C)
publicly designating a representative to receive such notifications.
(vi) Eligibility for the limitations in this subparagraph shall be conditioned on the service provider:
(A) adopting and reasonably implementing a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers; and
(B) accommodating and not interfering with standard technical measures accepted in the Party’s territory that protect and identify copyrighted material, that are developed through an open,
voluntary process by a broad consensus of copyright owners and service providers, that are available on reasonable and nondiscriminatory terms, and that do not impose substantial costs on
service providers or substantial burdens on their systems or networks.
(vii) Eligibility for the limitations in this subparagraph may not be conditioned on the service provider monitoring its service, or affirmatively seeking facts indicating
infringing activity, except to the extent consistent with such technical measures. (viii) If the service provider qualifies for the limitations with respect to the function
referred to in clause (i)(A), court-ordered relief to compel or restrain certain actions shall be limited to terminating specified accounts, or to taking reasonable steps to block access to a
specific, non-domestic on-line location. If the service provider qualifies for the limitations with respect to any other function in clause (i), court-ordered relief to compel or restrain
certain actions shall be limited to removing or disabling access to the infringing material, terminating specified accounts, and other remedies that a court may find necessary provided that
such other remedies are the least burdensome to the service provider among comparably effective forms of relief. Each Party shall provide that any such relief shall be issued with due regard
for the relative burden to the service provider and harm to the copyright owner, the technical feasibility and effectiveness of the remedy and whether less burdensome, comparably effective
enforcement methods are available. Except for orders ensuring the preservation of evidence, or other orders having no material adverse effect on the operation of the service provider’s
communications network, each Party shall provide that such relief shall be available only where the service provider has received notice and an opportunity to appear before the Party’s
judicial authority. (ix) For purposes of the notice and take down process for the functions referred to in clauses (i)(C) and (D), each Party shall establish appropriate
procedures for effective notifications of claimed infringement, and effective counter-notifications by those whose material is removed or disabled through mistake or misidentification. At a
minimum, each Party shall require that an effective notification of claimed infringement be a written communication, physically or electronically signed by a person who represents, under
penalty of perjury or other criminal penalty, that he is an authorized representative of a right holder in the material that is claimed to have been infringed, and containing information that
is reasonably sufficient to enable the service provider to identify and locate material that the complaining party claims in good faith to be infringing and to contact that complaining party.
At a minimum, each Party shall require that an effective counter-notification contain the same information, mutatis mutandis, as a notification of claimed infringement, and contain a
statement that the subscriber making the counter-notification consents to the jurisdiction of the courts of the Party. Each Party shall also provide for monetary remedies against any person
who makes a knowing material misrepresentation in a notification or counter-notification that causes injury to any interested party as a result of a service provider relying on the
misrepresentation. (x) If the service provider removes or disables access to material in good faith based on claimed or apparent infringement, each Party shall provide that
the service provider shall be exempted from liability for any resulting claims, provided that, in the case of material residing on its system or network, it takes reasonable steps promptly to
notify the person making the material available on its system or network that it has done so and, if such person makes an effective counter-notification and is subject to jurisdiction in an
infringement suit, to restore the material on-line unless the person giving the original effective notification seeks judicial relief within a reasonable time. (xi) Each
Party shall establish an administrative or judicial procedure enabling copyright owners who have given effective notification of claimed infringement to obtain expeditiously from a service
provider information in its possession identifying the alleged infringer. (xii) Service provider means:
(A) for purposes of the function referred to in clause (i)(A), a provider of transmission, routing, or connections for digital on-line communications without modification
of their content between or among points specified by the user of material of the user’s choosing; and (B) for purposes of the functions referred to in clause (i)(B)
through (D), a provider or operator of facilities for on-line services or network access.
Additional Procedures and Remedies
28. Annex 15.11 applies between the Dominican Republic and the United States.
Article 15.12: Final Provisions
1. Except as otherwise provided in paragraph 2 and
Article 15.1, each Party shall give effect to this Chapter on the date of entry into force of this Agreement.
2. As specified below, a Party may delay giving effect to certain provisions of this Chapter for no longer than the periods in this paragraph, beginning on the date of entry into force of the
Agreement:
(a) in the case of Costa Rica:
(i) with respect to Articles 15.4.1 and
15.9.6, one year; (ii) with respect to
Article 15.8.1(b), 18 months; (iii) with respect to
Articles 15.3.7 and
15.5.8(a)(ii), two years; (iv) with respect to
Article 15.11.27, 30 months; and
(v) with respect to
Articles 15.5.7(a)(ii),
15.5.7(e), 15.5.7(f),
15.11.8, and
15.11.14, three years;
(b) in the case of the Dominican Republic:
(i) with respect to Article 15.5.4, six months; (ii) with respect to Articles 15.5.9 and 15.9.6, one year; (iii) with respect to
Article 15.2.1, 18 months; (iv) with respect to Articles 15.3.7, and 15.11.27, two years; and (v) with respect to Article 15.5.7(a)(ii), 15.5.7(e), and
15.5.7(f), three years.
(c) in the case of El Salvador:
(i) with respect to Article 15.11.27, one year; (ii) with respect to Article 15.8.1(b), 18 months; (iii) with respect to Article
15.11.23, two years; (iv) with respect to Article 15.5.8(a)(ii), 30 months; and (v) with respect to Articles 15.5.7(a)(ii), 15.5.7(e), 15.5.7(f),
15.11.8, and 15.11.14, three years;
(d) in the case of Guatemala:
(i) with respect to Article 15.5.4, six months; (ii) with respect to Articles 15.5.9 and 15.9.6, one year; (iii) with respect to
Article 15.8, 18 months; (iv) with respect to Articles 15.2.1, 15.3.7, 15.4, 15.5.8(a)(ii), 15.11.20, 15.11.21, 15.11.22, and 15.11.25, two years; (v)
with respect to Article 15.11.27, 30 months; (vi) with respect to Articles 15.5.7(a)(ii), 15.5.7(e), 15.5.7(f), 15.11.8, 15.11.14, and 15.11.24, three years; and
(vii) with respect to Article 15.11.23, four years;
(e) in the case of Honduras:
(i) with respect to Articles 15.5.9 and 15.9.6, one year; (ii) with respect to Article 15.8, 18 months; (iii) with respect to Articles
15.2.1, 15.3.7, 15.4, 15.5.8(a)(ii), 15.11.20, 15.11.21, 15.11.22, and 15.11.25, two years; (iv) with respect to Article 15.11.27, 30 months; (v) with
respect to Articles 15.5.7(a)(ii), 15.5.7(e), 15.5.7(f), 15.11.8, 15.11.14, and 15.11.24, three years; and (vi) with respect to Article 15.11.23, four years; and
(f) in the case of Nicaragua:
(i) with respect to Articles 15.5.9 and 15.9.6, one year; (ii) with respect to Article 15.8.1(b), 18 months; (iii) with respect to
Articles 15.3.7, 15.4, 15.5.8(a)(ii), 15.11.20, 15.11.21, 15.11.22, and 15.11.25, two years; (iv) with respect to Articles 15.5.7(a)(ii), 15.5.7(e), 15.5.7(f), 15.11.8,
15.11.14, 15.11.24, and 15.11.27, three years; and (v) with respect to Article 15.11.23, four years.
Annex 15.11 Procedures and Remedies Concerning
Broadcast or Cable Transmissions or Retransmissions
in the Dominican Republic
1. The Dominican Republic reaffirms its commitments under Chapter 15 to the application of administrative, civil, and criminal procedures and remedies in the case of
broadcast or cable transmissions or retransmissions that are made without the authorization of the right holder or right holders of the content of the signal and, if any, of the signal.
2. The Dominican Republic shall provide that procedures and remedies are set out in its law for the temporary suspension of concessions or operating licenses, or both, for broadcast or cable
transmissions or retransmissions in cases where the Oficina Nacional de Derecho de Autor (ONDA) or its other competent authorities determine that transmissions or retransmissions that
are the subject of the concession or operating license have been made without the permission of the right holder or right holders of the content of the signal and, if any, of the signal. Such
procedures shall conform to the requirements of Article 15.11 applicable to administrative enforcement, and shall include:
(a) an opportunity for right holders to make written requests to ONDA or other competent authorities for the temporary or permanent closure of establishments transmitting
the unauthorized broadcast or cable transmissions (pursuant to Article 187 of the Ley sobre Derecho de Autor, No. 65-00, August 21, 2000,as implemented by Articles 116.4 and 116.5 of
the Reglamento de Aplicación, No. 362-01, March 14, 2001), and for other sanctions available under its law, and to submit evidence in support of such requests; (b) a
requirement that holders of such concessions or operating licenses cooperate with ONDA or other competent authorities so that investigations and inspections concerning such a request can take
place without delay, including by providing access to all documents relating to the transmissions or retransmissions; and (c) a requirement that an administrative decision
concerning such a request be rendered expeditiously and not later than 60 days after the date of the request. Such decisions shall be in writing and shall state the reasons on which they are
based. Any closure shall become effective immediately following a decision requiring such closure. Temporary closure shall continue in effect for up to 30 days. Failure to cease transmission
or retransmission following closure shall be considered a violation classified under Article 105(d) of the Ley General de Telecomunicaciones, No. 153-98, May 27, 1998, and shall be
subject to all available sanctions authorized by that law.
The Dominican Republic shall further provide that ONDA or other competent authorities may initiate procedures for the temporary or permanent closure of establishments
transmitting the unauthorized broadcast or cable transmissions and other sanctions available under national law ex officio, without the need for a written request from a private party or
right holder. 3. The Dominican Republic shall provide that ONDA and its other competent authorities shall have sufficient resources to carry out the actions described in
paragraph 2, and hereby reaffirms its obligations under Article 15.11.2(b). 4. INDOTEL shall exercise the powers conferred on it by the Ley General de Telecomunicaciones
No. 153-98 to address copyright infringement in appropriate cases, consistent with the INDOTEL Resolution of January 30, 2004, sanctioning holders of cable transmission service
authorizations who transmitted signals containing protected works or retransmitted signals issued by the entity originating the transmission without authorization. If the level of sanctions
imposed in the INDOTEL Resolution of January 30, 2004 is not effective in eliminating the problem, then INDOTEL shall increase sanctions to an effective level. 5. The
Dominican Republic shall provide quarterly reporting of progress made in all judicial actions concerning television broadcasting piracy consistent with the understanding set out in an exchange
of letters between the Dominican Republic and the United States on the date of signature of this Agreement.
Chapter Sixteen
Labor
Article 16.1: Statement of Shared Commitment
1. The Parties reaffirm their obligations as members of the International
Labor Organization (ILO) and their commitments under the ILO Declaration on Fundamental
Principles and Rights at Work and its Follow-Up (1998) (ILO Declaration).1
Each Party shall strive to ensure that such labor principles and the internationally recognized labor rights set
forth in Article 16.8 are recognized and protected by its law.
2. The Parties affirm their full respect for their Constitutions. Recognizing
the right of each Party to establish its own domestic labor standards, and to adopt or modify
accordingly its labor laws, each Party shall strive to ensure that its laws provide for labor
standards consistent with the internationally recognized labor rights set forth in Article 16.8 and shall
strive to improve those standards in that light.
Article 16.2: Enforcement of Labor Laws
1.
(a) A Party shall not fail to effectively enforce its labor
laws, through a sustained or recurring course of action or inaction, in a manner affecting trade between
the Parties, after the date of entry into force of this Agreement.
(b) Each Party retains the right to exercise discretion with respect to
investigatory, prosecutorial, regulatory, and compliance matters and to make decisions regarding the allocation of resources to enforcement with respect to other
labor matters determined to have higher priorities. Accordingly, the Parties
understand that a Party is in compliance with subparagraph (a) where a course of action
or inaction reflects a reasonable exercise of such discretion, or results from a
bona fide decision regarding the allocation of resources.
2. The Parties recognize that it is inappropriate to encourage trade or
investment by weakening or reducing the protections afforded in domestic labor laws.
Accordingly, each Party shall strive to ensure that it does not waive or otherwise derogate from, or
offer to waive o otherwise derogate from, such laws in a manner that weakens or reduces
adherence to the internationally recognized labor rights referred to in Article 16.8 as an
encouragement for trade with another Party, or as an encouragement for the establishment,
acquisition, expansion, or retention of an investment in its territory.
3. Nothing in this Chapter shall be construed to empower a Party’s
authorities to undertake labor law enforcement activities in the territory of another Party.
Article 16.3: Procedural Guarantees and Public Awareness
1. Each Party shall ensure that persons with a legally recognized interest
under its law in a particular matter have appropriate access to tribunals for the enforcement of
the Party’s labor laws. Such tribunals may include administrative, quasi-judicial, judicial, or
labor tribunals, as provided in the Party’s domestic law.
2. Each Party shall ensure that proceedings before such tribunals for the
enforcement of its labor laws are fair, equitable, and transparent and, to this end, each Party
shall ensure that:
(a) such proceedings comply with due process of law;
(b) any hearings in such proceedings are open to the public, except where the administration of justice otherwise requires;
(c) the parties to such proceedings are entitled to support or defend their
respective positions, including by presenting information or evidence; and
(d) such proceedings do not entail unreasonable charges or time limits or unwarranted delays.
3. Each Party shall provide that final decisions on the merits of the case in
such proceedings are:
(a) in writing and state the reasons on which the decisions are based;
(b) made available without undue delay to the parties to the proceedings and, consistent with its law, to the public; and
(c) based on information or evidence in respect of which the parties were
offered the opportunity to be heard.
4. Each Party shall provide, as appropriate, that parties to such proceedings
have the right to seek review and, where warranted, correction of final decisions issued in
such proceedings.
5. Each Party shall ensure that tribunals that conduct or review such
proceedings are impartial and independent and do not have any substantial interest in the
outcome of the matter.
6. Each Party shall provide that the parties to such proceedings may seek
remedies to ensure the enforcement of their rights under its labor laws. Such remedies may
include measures such as orders, fines, penalties, or temporary workplace closures, as provided in
the Party’s laws.
7. Each Party shall promote public awareness of its labor laws, including by:
(a) ensuring the availability of public information related to its labor laws
and enforcement and compliance procedures; and
(b) encouraging education of the public regarding its labor laws.
8. For greater certainty, decisions or pending decisions by each Party’s
administrative, quasi-judicial, judicial, or labor tribunals, as well as related proceedings,
shall not be subject to revision or be reopened under the provisions of this Chapter.
Article 16.4: Institutional Arrangements
1. The Parties hereby establish a Labor Affairs Council, comprising
cabinet-level or equivalent representatives of the Parties, or their designees.
2. The Council shall meet within the first year after the date of entry into
force of this Agreement and thereafter as often as it considers necessary to oversee the
implementation of and review progress under this Chapter, including the activities of the Labor
Cooperation and Capacity Building Mechanism established under Article 16.5, and to pursue the
labor objectives of this Agreement. Unless the Parties otherwise agree, each meeting of the
Council shall include a session at which members of the Council have an opportunity to meet with
the public to discuss matters relating to the implementation of this Chapter.
3. Each Party shall designate an office within its labor ministry that shall
serve as a contact point with the other Parties, and with the public, for purposes of carrying
out the work of the Council, including coordination of the Labor Cooperation and Capacity
Building Mechanism. Each Party’s contact point shall provide for the submission, receipt, and
consideration of communications from persons of a Party on matters related to the provisions
of this Chapter, and shall make such communications available to the other Parties and, as
appropriate, to the public. Each Party shall review such communications, as appropriate, in accordance
with domestic procedures. The Council shall develop general guidelines for considering such
communications.
4. Each Party may convene a new, or consult an existing, national labor
advisory or consultative committee, comprising members of its public, including
representatives of its labor and business organizations, to provide views on any issues related to this
Chapter.
5. All decisions of the Council shall be taken by consensus. All decisions of
the Council shall be made public, unless otherwise provided in this Agreement, or unless
the Council otherwise decides.
6. The Council may prepare reports on matters related to the implementation
of this Chapter, and shall make such reports public.
Article 16.5: Labor Cooperation and Capacity Building Mechanism
1. Recognizing that cooperation on labor issues can play an important role in
advancing development in the territory of the Parties and in providing opportunities to
improve labor standards, and to further advance common commitments regarding labor matters,
including the principles embodied in the ILO Declaration and ILO Convention No. 182
Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of
Child Labour (1999) (ILO Convention 182), the Parties hereby establish a Labor
Cooperation and Capacity Building Mechanism, as set out in Annex 16.5. The Mechanism shall operate in
a manner that respects each Party’s law and sovereignty.
2. While endeavoring to strengthen each Party’s institutional capacity to
fulfill the common goals of the Agreement, the Parties shall strive to ensure that the
objectives of the Labor Cooperation and Capacity Building Mechanism, and the activities undertaken
through that Mechanism:
(a) are consistent with each Party’s national programs, development
strategies, and priorities;
(b) provide opportunities for public participation in the development and implementation of such objectives and activities; and
(c) take into account each Party’s economy, culture, and legal system.
Article 16.6: Cooperative Labor Consultations
1. A Party may request consultations with another Party regarding any matter
arising under this Chapter by delivering a written request to the contact point that the
other Party has designated under Article 16.4.3.
2. The consultations shall begin promptly after delivery of the request. The
request shall contain information that is specific and sufficient to enable the Party
receiving the request to respond.
3. The consulting Parties shall make every attempt to arrive at a mutually
satisfactory resolution of the matter, taking into account opportunities for cooperation
relating to the matter, and may seek advice or assistance from any person or body they deem
appropriate in order to fully examine the matter at issue.
4. If the consulting Parties fail to resolve the matter pursuant to paragraph
3, a consulting Party may request that the Council be convened to consider the matter by
delivering a written request to the contact point of each of the other Parties.2
5. The Council shall promptly convene and shall endeavor to resolve the
matter, including, where appropriate, by consulting outside experts and having recourse to such
procedures as good offices, conciliation, or mediation.
6. If the matter concerns whether a Party is conforming to its obligations
under Article 16.2.1(a), and the consulting Parties have failed to resolve the matter
within 60 days of a request under paragraph 1, the complaining Party may request consultations under
Article 20.4 (Consultations) or a meeting of the Commission under Article 20.5 (Commission
– Good Offices, Conciliation, and Mediation) and, as provided in Chapter Twenty
(Dispute Settlement), thereafter have recourse to the other provisions of that Chapter. The Council
may, as appropriate, provide information to the Commission on consultations held on
the matter.
7. No Party may have recourse to dispute settlement under this Agreement for
any matter arising under any provision of this Chapter other than Article 16.2.1(a).
8. No Party may have recourse to dispute settlement under this Agreement for
a matter arising under Article 16.2.1(a) without first pursuing resolution of the
matter in accordance with this Article.
9. In cases where the consulting Parties agree that a matter arising under
this Chapter would be more appropriately addressed under another agreement to which the
consulting Parties are party, they shall refer the matter for appropriate action in accordance with
that agreement.
Article 16.7: Labor Roster
1. The Parties shall establish within six months after the date of entry into
force of this Agreement and maintain a roster of up to 28 individuals who are willing and
able to serve as panelists in disputes arising under Article 16.2.1(a). Unless the Parties
otherwise agree, up to three members of the roster shall be nationals of each Party, and up to seven
members of the roster shall be selected from among individuals who are not nationals of any
Party. Labor roster members shall be appointed by consensus, and may be reappointed. Once
established, a roster shall remain in effect for a minimum of three years, and shall remain in
effect thereafter until the Parties constitute a new roster. The Parties may appoint a replacement where
a roster member is no longer available to serve.
2. Labor roster members shall:
(a) have expertise or experience in labor law or its enforcement,
international trade, or the resolution of disputes arising under international agreements;
(b) be chosen strictly on the basis of objectivity, reliability, and sound
judgment;
(c) be independent of, and not affiliated with or take instructions from, any
Party; and (d) comply with a code of conduct to be established by the Commission.
3. Where a Party claims that a dispute arises under Article 16.2.1(a),
Article 20.9 (Panel Selection) shall apply, except that the panel shall be composed entirely of
panelists meeting the qualifications in paragraph 2.
Article 16.8: Definitions
For purposes of this Chapter:
labor laws means a Party’s statutes or regulations, or provisions
thereof, that are directly related to the following internationally recognized labor rights:
(a) the right of association;
(b) the right to organize and bargain collectively;
(c) a prohibition on the use of any form of forced or compulsory labor;
(d) a minimum age for the employment of children and the prohibition and elimination of the worst forms of child labor; and
(e) acceptable conditions of work with respect to minimum wages, hours of
work, and occupational safety and health.
For greater certainty, the setting of standards and levels in respect of
minimum wages by each Party shall not be subject to obligations under this Chapter. Each Party’s
obligations under this Chapter pertain to enforcing the level of the general minimum wage
established by that Party.
statutes or regulations means:
(a) for Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras,
and Nicaragua, laws of its legislative body or regulations promulgated pursuant
to an act of its legislative body that are enforceable by action of the executive
body; and
(b) for the United States, acts of Congress or regulations promulgated
pursuant to an act of Congress that are enforceable by action of the federal government.
Annex 16.5
Labor Cooperation and Capacity Building Mechanism
Organization and Principal Functions
1. The Labor Affairs Council working through each Party’s contact point shall
coordinate the activities of the Labor Cooperation and Capacity Building Mechanism. The
contact points shall meet within six months after the date of entry into force of this
Agreement and thereafter as often as they consider necessary.
2. The contact points, together with representatives of other appropriate
agencies and ministries, shall cooperate to:
(a) establish priorities, with particular emphasis on those subjects
identified in paragraph 3 of this Annex, for cooperation and capacity building activities
on labor issues;
(b) develop specific cooperative and capacity building activities in
accordance with such priorities;
(c) exchange information regarding each Party’s labor laws and practices,
including best practices, as well as ways to strengthen them; and
(d) seek support, as appropriate, from international organizations such as
the International Labor Organization, the Inter-American Development Bank, the World Bank, and the Organization of American States, to advance common commitments regarding labor matters.
Cooperation and Capacity Building Priorities
3. The Mechanism may initiate bilateral or regional cooperative activities on
labor issues, which may include, but need not be limited to:
(a) fundamental rights and their effective application: legislation
and practice related to the core elements of the ILO Declaration (freedom of association and the effective recognition of the right to collective bargaining, elimination of
all forms of forced or compulsory labor, the effective abolition of child labor, and
the elimination of discrimination in respect of employment and occupation);
(b) worst forms of child labor: legislation and practice related to
compliance with ILO Convention 182;
(c) labor administration: institutional capacity of labor
administrations and tribunals, especially training and professionalization of human resources, including career civil service;
(d) labor inspectorates and inspection systems: methods and training
to improve the level and efficiency of labor law enforcement, strengthen labor inspection systems, and help ensure compliance with labor laws;
(e) alternative dispute resolution: initiatives aimed at establishing
alternative dispute resolution mechanisms for labor disputes;
(f) labor relations: forms of cooperation and dispute resolution to
ensure productive labor relations among workers, employers, and governments;
(g) working conditions: mechanisms for supervising compliance with
statutes and regulations pertaining to hours of work, minimum wages and overtime, occupational safety and health, and employment conditions;
(h) migrant workers: dissemination of information regarding labor
rights of migrant workers in each Party’s territory;
(i) social assistance programs: human resource development and
employee training, among other programs;
(j) labor statistics: development of methods for the Parties to
generate comparable labor market statistics in a timely manner;
(k) employment opportunities: promotion of new employment
opportunities and workforce modernization;
(l) gender: gender issues, including the elimination of discrimination
in respect of employment and occupation; and
(m) technical issues: programs, methodologies, and experiences
regarding productivity improvement, encouragement of best labor practices, and the effective use of technologies, including those that are Internet-based.
Implementation of Cooperative Activities
4. Pursuant to the Mechanism, the Parties may cooperate on labor issues using
any means they deem appropriate, including, but not limited to:
(a) technical assistance programs, including by providing human, technical,
and material resources, as appropriate;
(b) exchange of official delegations, professionals, and specialists,
including through study visits and other technical exchanges;
(c) exchange of information on standards, regulations, and procedures, and
best practices, including pertinent publications and monographs;
(d) joint conferences, seminars, workshops, meetings, training sessions, and
outreach and education programs;
(e) collaborative projects or demonstrations; and
(f) joint research projects, studies, and reports, including by engaging
independent specialists with recognized expertise.
Public Participation
5. In identifying areas for labor cooperation and capacity building, and in
carrying out cooperative activities, each Party shall consider the views of its worker and
employer representatives, as well as those of other members of the public .
Chapter Seventeen Environment Article 17.1: Levels of Protection
Recognizing the right of each Party to establish its own levels of domestic
environmental protection and environmental development policies and priorities, and to
adopt or modify accordingly its environmental laws and policies, each Party shall ensure that
its laws and policies provide for and encourage high levels of environmental protection, and shall
strive to continue to improve those laws and policies.
Article 17.2: Enforcement of Environmental Laws
1.
(a) A Party shall not fail to effectively enforce its environmental laws,
through a sustained or recurring course of action or inaction, in a manner affecting
trade between the Parties, after the date of entry into force of this Agreement. (b) The Parties recognize that each Party retains the right to exercise
discretion with respect to investigatory, prosecutorial, regulatory, and compliance matters
and to make decisions regarding the allocation of resources to enforcement with
respect to other environmental matters determined to have higher priorities. Accordingly, the Parties understand that a Party is in compliance with subparagraph (a) where a course of action or inaction reflects a reasonable exercise of such discretion, or results from a
bona fide decision
regarding the allocation of resources.
2. The Parties recognize that it is inappropriate to encourage trade or
investment by weakening or reducing the protections afforded in domestic environmental
laws. Accordingly, each Party shall strive to ensure that it does not waive or otherwise
derogate from, or offer to waive or otherwise derogate from, such laws in a manner that weakens or
reduces the protections afforded in those laws as an encouragement for trade with another Party, or
as an encouragement for the establishment, acquisition, expansion, or retention of an investment
in its territory. 3. Nothing in this Chapter shall be construed to empower a Party’s
authorities to undertake environmental law enforcement activities in the territory of another Party.
Article 17.3: Procedural Matters
1. Each Party shall ensure that judicial, quasi-judicial, or administrative
proceedings, in accordance with its law, are available to sanction or remedy violations of
its environmental laws.
(a) Such proceedings shall be fair, equitable, and transparent and, to this
end, shall comply with due process of law and be open to the public, except where the administration of justice otherwise requires. (b) The parties to such proceedings shall be entitled to support or defend
their respective positions, including by presenting information or evidence. (c) Each Party shall provide appropriate and effective remedies or sanctions
for a violation of its environmental laws that:
(i) take into consideration, as appropriate, the nature and gravity of the violation, any economic benefit the violator has derived from the violation, the economic condition of the violator, and other relevant factors; and
(ii) may include criminal and civil remedies and sanctions such as compliance agreements, penalties, fines, injunctions, suspension of activities, and requirements to take remedial action or pay for damage to the environment.
2. Each Party shall ensure that interested persons may request the Party’s
competent authorities to investigate alleged violations of its environmental laws, and
that each Party’s competent authorities shall give such requests due consideration in
accordance with its law. 3. Each Party shall ensure that persons with a legally recognized interest
under its law in a particular matter have appropriate access to proceedings referred to in
paragraph 1. 4. Each Party shall provide appropriate and effective access to remedies, in
accordance with its law, which may include rights such as:
(a) to sue another person under that Party’s jurisdiction for damages under
that Party’s laws; (b) to seek sanctions or remedies such as monetary penalties, emergency
closures or temporary suspension of activities, or orders to mitigate the consequences of violations of its environmental laws; (c) to request that Party’s competent authorities to take appropriate action
to enforce its environmental laws in order to protect the environment or to avoid environmental harm; or (d) to seek injunctions where a person suffers, or may suffer, loss, damage,
or injury as a result of conduct by another person subject to that Party’s jurisdiction
that is contrary to that Party’s environmental laws or that violates a legal duty
under that Party’s law relating to human health or the environment.
5. Each Party shall ensure that tribunals that conduct or review proceedings
referred to in paragraph 1 are impartial and independent and do not have any substantial
interest in the outcome of the matter. 6. For greater certainty, nothing in this Chapter shall be construed to call
for the examination under this Agreement of whether a Party’s judicial,
quasi-judicial, or administrative tribunals have appropriately applied that Party’s environmental laws.
Article 17.4: Voluntary Mechanisms to Enhance Environmental Performance
1. The Parties recognize that incentives and other flexible and voluntary
mechanisms can contribute to the achievement and maintenance of environmental protection,
complementing the procedures set out in Article 17.3. As appropriate and in accordance with its
law, each Party shall encourage the development and use of such mechanisms, which may
include:
(a) mechanisms that facilitate voluntary action to protect or enhance the
environment, such as:
(i) partnerships involving businesses, local communities, non-governmental organizations, government agencies, or scientific organizations; (ii) voluntary guidelines for environmental performance; or
(iii) sharing of information and expertise among authorities, interested
parties, and the public concerning methods for achieving high levels of environmental protection, voluntary environmental auditing and reporting, ways to use resources more efficiently or reduce environmental impacts, environmental monitoring, and collection of baseline data; or
(b) incentives, including market-based incentives where appropriate, to
encourage conservation, restoration, and protection of natural resources and the
environment, such as public recognition of facilities or enterprises that are superior environmental performers, or programs for exchanging permits or other instruments to help achieve environmental goals.
2. As appropriate and feasible and in accordance with its law, each Party
shall encourage:
(a) the maintenance, development, or improvement of performance goals and indicators used in measuring environmental performance; and (b) flexibility in the means to achieve such goals and meet such standards,
including through mechanisms identified in paragraph 1.
Article 17.5: Environmental Affairs Council
1. The Parties hereby establish an Environmental Affairs Council comprising
cabinet-level or equivalent representatives of the Parties, or their designees. Each Party
shall designate an office in its appropriate ministry that shall serve as a contact point for
carrying out the work of the Council. 2. The Council shall meet within the first year after the date of entry into
force of this Agreement, and annually thereafter unless the Parties otherwise agree, to
oversee the implementation of and review progress under this Chapter and to consider the
status of cooperation activities developed under the Dominican Republic – Central
America – United States – Environmental Cooperation Agreement (“ECA”). Unless the Parties
otherwise agree, each meeting of the Council shall include a session in which members of the
Council have an opportunity to meet with the public to discuss matters relating to the
implementation of this Chapter. 3. The Council shall set its own agenda. In setting the agenda, each Party
shall seek views from its public concerning possible issues for discussion. 4. In order to share innovative approaches for addressing environmental
issues of interest to the public, the Council shall ensure a process for promoting public
participation in its work, including by engaging in a dialogue with the public on those issues. 5. The Council shall seek appropriate opportunities for the public to
participate in the development and implementation of cooperative environmental activities,
including through the ECA. 6. All decisions of the Council shall be taken by consensus, except as
provided in Article 17.8. All decisions of the Council shall be made public, unless otherwise
provided in this Agreement, or unless the Council otherwise decides.
Article 17.6: Opportunities for Public Participation
1. Each Party shall provide for the receipt and consideration of public
communications on matters related to this Chapter. Each Party shall promptly make available to
the other Parties and to its public all communications it receives and shall review and respond
to them in accordance with its domestic procedures. 2. Each Party shall make best efforts to accommodate requests by persons of
that Party to exchange views with that Party regarding that Party’s implementation of this
Chapter. 3. Each Party shall convene a new, or consult an existing, national
consultative or advisory committee, comprising members of its public, including representatives of
business and environmental organizations, to provide views on matters related to the
implementation of this Chapter. 4. The Parties shall take into account public comments and recommendations
regarding cooperative environmental activities undertaken pursuant to Article 17.9 and
the ECA.
Article 17.7: Submissions on Enforcement Matters
1. Any person of a Party may file a submission asserting that a Party is
failing to effectively enforce its environmental laws. Such submissions shall be filed with a
secretariat or other appropriate body (“secretariat”) that the Parties designate.1 2. The secretariat may consider a submission under this Article if the
secretariat finds that the submission:
(a) is in writing in either English or Spanish; (b) clearly identifies the person making the submission; (c) provides sufficient information to allow the secretariat to review the
submission, including any documentary evidence on which the submission may be based; (d) appears to be aimed at promoting enforcement rather than at harassing
industry; (e) indicates that the matter has been communicated in writing to the
relevant authorities of the Party and indicates the Party’s response, if any; and (f) is filed by a person of a Party.
3. The Parties recognize that the North American Agreement on
Environmental Cooperation (“NAAEC”) provides that a person or organization residing or established in
the territory of the United States may file a submission under that agreement with the Secretariat
of the NAAEC Commission for Environmental Cooperation asserting that the United States is
failing to effectively enforce its environmental laws.2 In light
of the availability of that procedure, a person of the United States who considers that the United States is failing
to effectively enforce its environmental laws may not file a submission under this Article. For
greater certainty, a person of a Party other than the United States who considers that the United
States is failing to effectively enforce its environmental laws may file a submission with the
secretariat. 4. Where the secretariat determines that a submission meets the criteria set
out in paragraph 2, the secretariat shall determine whether the submission merits requesting a
response from the Party. In deciding whether to request a response, the secretariat shall be
guided by whether:
(a) the submission is not frivolous and alleges harm to the person making the submission; (b) the submission, alone or in combination with other submissions, raises
matters whose further study in this process would advance the goals of this Chapter
and the ECA, taking into account guidance regarding those goals provided by the Council and the Environmental Cooperation Commission established under the ECA; (c) private remedies available under the Party’s law have been pursued; and
(d) the submission is drawn exclusively from mass media reports.
Where the secretariat makes such a request, it shall forward to the Party a
copy of the submission and any supporting information provided with the submission. 5. The Party shall advise the secretariat within 45 days or, in exceptional
circumstances and on notification to the secretariat, within 60 days of delivery of the
request:
(a) whether the precise matter at issue is the subject of a pending judicial
or administrative proceeding, in which case the secretariat shall proceed no
further; and (b) of any other information the Party wishes to submit, such as:
(i) whether the matter was previously the subject of a judicial or administrative proceeding; (ii) whether private remedies in connection with the matter are available to
the person making the submission and whether they have been pursued; or (iii) information concerning relevant capacity-building activities under the ECA.
Article 17.8: Factual Records and Related Cooperation
1. If the secretariat considers that the submission, in light of any response
provided by the Party, warrants developing a factual record, the secretariat shall so inform
the Council and provide its reasons. 2. The secretariat shall prepare a factual record if the Council, by a vote
of any Party, instructs it to do so. 3. The preparation of a factual record by the secretariat pursuant to this
Article shall be without prejudice to any further steps that may be taken with respect to any
submission. 4. In preparing a factual record, the secretariat shall consider any
information furnished by a Party and may consider any relevant technical, scientific, or other
information:
(a) that is publicly available; (b) submitted by interested persons; (c) submitted by national advisory or consultative committees;
(d) developed by independent experts; or (e) developed under the ECA.
5. The secretariat shall submit a draft factual record to the Council. Any
Party may provide comments on the accuracy of the draft within 45 days thereafter. 6. The secretariat shall incorporate, as appropriate, any such comments in
the final factual record and submit it to the Council. 7. The Council may, by a vote of any Party, make the final factual record
publicly available, normally within 60 days following its submission. 8. The Council shall consider the final factual record in light of the
objectives of this Chapter and the ECA. The Council shall, as appropriate, provide
recommendations to the Environmental Cooperation Commission related to matters addressed in the
factual record, including recommendations related to the further development of the Party’s
mechanisms for monitoring its environmental enforcement.
Article 17.9: Environmental Cooperation
1. The Parties recognize the importance of strengthening capacity to protect
the environment and to promote sustainable development in concert with
strengthening trade and investment relations. 2. The Parties are committed to expanding their cooperative relationship,
recognizing that cooperation is important for achieving their shared environmental goals and
objectives, including the development and improvement of environmental protection, as set out in
this Chapter. 3. The Parties recognize that strengthening their cooperative relationship on
environmental matters can enhance environmental protection in their territories and may
encourage increased trade and investment in environmental goods and services. 4. The Parties have negotiated an ECA. The Parties have identified certain
priority areas of cooperation for environmental activities as reflected in Annex 17.9 and as
set out in the ECA. The Parties also have established an Environmental Cooperation Commission
through the ECA that is responsible for developing, and periodically revising and updating, a
work program that reflects each Party’s priorities for cooperative environmental programs,
projects, and activities. 5. The Parties also recognize the continuing importance of current and future
environmental cooperation activities in other fora.
Article 17.10: Collaborative Environmental Consultations
1. A Party may request consultations with another Party regarding any matter
arising under this Chapter by delivering a written request to the contact point that the
other Party has designated under Article 17.5.1. 2. The consultations shall begin promptly after delivery of the request. The
request shall contain information that is specific and sufficient to enable the Party
receiving the request to respond. 3. The consulting Parties shall make every attempt to arrive at a mutually
satisfactory resolution of the matter, taking into account opportunities for cooperation
relating to the matter and information exchanged by the consulting Parties, and may seek advice or
assistance from any person or body they deem appropriate in order to fully examine the matter
at issue. 4. If the consulting Parties fail to resolve the matter pursuant to paragraph
3, a consulting Party may request that the Council be convened to consider the matter by
delivering a written request to the contact point of each of the other Parties.3 5. The Council shall promptly convene and shall endeavor to resolve the
matter, including, where appropriate, by consulting outside experts and having recourse to such
procedures as good offices, conciliation, or mediation. 6. If the matter concerns whether a Party is conforming to its obligations
under Article 17.2.1(a), and the consulting Parties have failed to resolve the matter
within 60 days of a request under paragraph 1, the complaining Party may request consultations under
Article 20.4 (Consultations) or a meeting of the Commission under Article 20.5 (Commission
– Good Offices, Conciliation, and Mediation) and, as provided in Chapter Twenty
(Dispute Settlement), thereafter have recourse to the other provisions of that Chapter. The Council
may, as appropriate, provide information to the Commission regarding any
consultations held on the matter. 7. No Party may have recourse to dispute settlement under this Agreement for
any matter arising under any provision of this Chapter other than Article 17.2.1(a). 8. No Party may have recourse to dispute settlement under this Agreement for
a matter arising under Article 17.2.1(a) without first pursuing resolution of the
matter in accordance with this Article. 9. In cases where the consulting Parties agree that a matter arising under
this Chapter would be more appropriately addressed under another agreement to which the
consulting Parties are party, they shall refer the matter for appropriate action in accordance with
that agreement.
Article 17.11: Environmental Roster
1. The Parties shall establish within six months after the date of entry into
force of this Agreement and maintain a roster of up to 28 individuals who are willing and
able to serve as panelists in disputes arising under Article 17.2.1(a). Unless the Parties
otherwise agree, up to three members of the roster shall be nationals of each Party, and up to seven
members of the roster shall be selected from among individuals who are not nationals of any
Party. Environment roster members shall be appointed by consensus, and may be reappointed. Once
established, a roster shall remain in effect for a minimum of three years, and shall remain
in effect thereafter until the Parties constitute a new roster. The Parties may appoint a
replacement where a roster member is no longer available to serve. 2. Environment roster members shall:
(a) have expertise or experience in environmental law or its enforcement, international trade, or the resolution of disputes arising under
international trade or environmental agreements; (b) be chosen strictly on the basis of objectivity, reliability, and sound
judgment; (c) be independent of, and not affiliated with or take instructions from, any
Party; and (d) comply with a code of conduct to be established by the Commission.
3. Where a Party claims that a dispute arises under Article 17.2.1(a),
Article 20.9 (Panel Selection) shall apply, except that the panel shall be composed entirely of
panelists meeting the qualifications in paragraph 2.
Article 17.12: Relationship to Environmental Agreements
1. The Parties recognize that multilateral environmental agreements to which
they are all party play an important role in protecting the environment globally and
domestically and that their respective implementation of these agreements is critical to achieving
the environmental objectives of these agreements. The Parties further recognize that this
Chapter and the ECA can contribute to realizing the goals of those agreements. Accordingly, the
Parties shall continue to seek means to enhance the mutual supportiveness of multilateral environmental
agreements to which they are all party and trade agreements to which they are all party. 2. The Parties may consult, as appropriate, with respect to ongoing
negotiations in the WTO regarding multilateral environmental agreements.
Article 17.13: Definitions
1. For purposes of this Chapter:
environmental law means any statute or regulation of a Party, or
provision thereof, the primary purpose of which is the protection of the environment, or the prevention of a
danger to human, animal, or plant life or health, through:
(a) the prevention, abatement, or control of the release, discharge, or
emission of pollutants or environmental contaminants; (b) the control of environmentally hazardous or toxic chemicals, substances, materials, and wastes, and the dissemination of information related thereto;
or (c) the protection or conservation of wild flora and fauna, including
endangered species, their habitat, and specially protected natural areas, in areas with respect to which a Party exercises sovereignty, sovereign
rights, or jurisdiction, but does not include any statute or regulation, or provision
thereof, directly related to worker safety or health.
For greater certainty, environmental law does not include any statute
or regulation, or provision thereof, the primary purpose of which is managing the commercial harvest or
exploitation, or subsistence or aboriginal harvesting, of natural resources. For purposes of the definition of “environmental law,” the primary purpose of
a particular statutory or regulatory provision shall be determined by reference to its
primary purpose, rather than to the primary purpose of the statute or regulation of which it is part.
statute or regulation means:
(a) for Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras,
and Nicaragua, a law of its legislative body or a regulation promulgated pursuant
to an act of its legislative body that is enforceable by the executive body; and (b) for the United States, an act of Congress or regulation promulgated
pursuant to an act of Congress that is enforceable by action of the federal government.
2. For purposes of Article 17.7.5, judicial or administrative proceeding
means:
(a) a domestic judicial, quasi-judicial, or administrative action pursued by
the Party in a timely fashion and in accordance with its law. Such actions comprise: mediation; arbitration; the process of issuing a license, permit, or
authorization; seeking an assurance of voluntary compliance or a compliance agreement; seeking sanctions or remedies in an administrative or judicial forum; and the process of issuing an administrative order; and
(b) an international dispute resolution proceeding to which the Party is a
party.
Annex 17.9 Environmental Cooperation
1. The Parties recognize the importance of protecting, improving, and
conserving the environment, including natural resources, in their territories. The Parties
underscore the importance of promoting all possible forms of cooperation and reaffirm that
cooperation on environmental matters provides enhanced opportunities to advance common
commitments to achieve sustainable development for the well-being of present and future
generations. 2. Recognizing the benefits that would be derived from a framework to
facilitate effective cooperation, the Parties negotiated the ECA. The Parties expect that the ECA
will enhance their cooperative relationship, noting the existence of differences in the Parties’
respective natural endowments, climatic and geographical conditions, and economic,
technological, and infrastructure capabilities. 3. As set forth in Article V of the ECA, the Parties have identified the
following priorities for environmental cooperation activities:
(a) strengthening each Party’s environmental management systems, including reinforcing institutional and legal frameworks and the capacity to develop, implement, administer, and enforce environmental laws, regulations,
standards, and policies; (b) developing and promoting incentives and other flexible and voluntary mechanisms in order to encourage environmental protection, including the development of market-based initiatives and economic incentives for environmental management;
(c) fostering partnerships to address current or emerging conservation and management issues, including personnel training and capacity building; (d) conserving and managing shared, migratory, and endangered species in international trade and management of marine parks and other protected areas;
(e) exchanging information on domestic implementation of multilateral environmental agreements that all the Parties have ratified; (f) promoting best practices leading to sustainable management of the
environment; (g) facilitating technology development and transfer and training to promote
the use, proper operation, and maintenance of clean production technologies; (h) developing and promoting environmentally beneficial goods and services; (i) building capacity to promote public participation in the process of
environmental decision-making; (j) exchanging information and experiences between Parties wishing to perform environmental reviews, including reviews of trade agreements, at the national level; and
(k) other areas for environmental cooperation on which the Parties may agree.
4. Funding mechanisms for environmental cooperation activities under the ECA
are addressed in Article VIII of the ECA.
Chapter Eighteen
Transparency
Section A: Transparency
Article 18.1: Contact Points
1. Each Party shall designate, within 60 days of the date of entry into force
of this Agreement, a contact point to facilitate communications between the Parties
on any matter covered by this Agreement. 2. On the request of another 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 18.2: 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 Parties to become acquainted with them. 2. To the extent possible, each Party shall:
(a) publish in advance any such measure that it proposes to adopt; and (b) provide interested persons and Parties a reasonable opportunity to
comment on such proposed measures.
Article 18.3: Notification and Provision of Information
1. To the maximum extent possible, each Party shall notify any other Party
with an interest in the matter of any proposed or actual measure that the Party considers
might materially affect the operation of this Agreement or otherwise substantially affect that other
Party’s interests under this Agreement .
2. On request of another Party, a Party shall promptly provide information
and respond to questions pertaining to any actual or proposed measure, whether or not that
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 18.4: 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 18.2 to particular persons, goods, or services of another Party in specific cases
that :
(a) wherever possible, persons of another Party that are directly affected by
a proceeding are provided reasonable notice, in accordance with domestic procedures, when a proceeding is initiated, including a description of the
nature of the proceeding, a statement of the legal authority under which the proceeding
is initiated, and a general description of any issues in controversy; (b) such persons are afforded a reasonable opportunity to present facts and
arguments in support of their positions prior to any final administrative action, when
time, the nature of the proceeding, and the public interest permit; and (c) its procedures are in accordance with domestic law.
Article 18.5: 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:
(a) a reasonable opportunity to support or defend their respective positions;
and (b) a decision based on the evidence and submissions of record or, where
required by domestic law, the record compiled by the administrative authority.
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 office or authority with respect to the administrative action at issue.
Article 18.6: Definitions
For purposes of this Section:
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:
(a) a determination or ruling made in an administrative or quasi-judicial
proceeding that applies to a particular person, good, or service of another Party in a
specific case; or (b) a ruling that adjudicates with respect to a particular act or practice.
Section B: Anti-Corruption
Article 18.7: Statement of Principle
The Parties affirm their resolve to eliminate bribery and corruption in
international trade and investment.
Article 18.8: Anti-Corruption Measures
1. Each Party shall adopt or maintain the necessary legislative or other
measures to establish that it is a criminal offense under its law, in matters affecting
international trade or investment, for:
(a) a public official of that Party or a person who performs public functions
for that Party intentionally to solicit or accept, directly or indirectly, any article
of monetary value or other benefit, such as a favor, promise, or advantage, for himself or for another person, in exchange for any act or omission in the performance of his public functions;
(b) any person subject to the jurisdiction of that Party intentionally to
offer or grant, directly or indirectly, to a public official of that Party or a person who
performs public functions for that Party any article of monetary value or other
benefit, such as a favor, promise, or advantage, for himself or for another person, in
exchange for any act or omission in the performance of his public functions; (c) any person subject to the jurisdiction of that Party intentionally to
offer, promise, or give any undue pecuniary or other advantage, directly or indirectly, to a
foreign official, for that official or for another person, in order that the official
act or refrain from acting in relation to the performance of official duties, in
order to obtain or retain business or other improper advantage in the conduct of international business; and (d) any person subject to the jurisdiction of that Party to aid or abet, or
to conspire in, the commission of any of the offenses described in subparagraphs (a) through
(c).
2. Each Party shall adopt or maintain appropriate penalties and procedures to
enforce the criminal measures that it adopts or maintains in conformity with paragraph 1. 3. In the event that, under the legal system of a Party, criminal
responsibility is not applicable to enterprises, that Party shall ensure that enterprises shall be
subject to effective, proportionate, and dissuasive non-criminal sanctions, including monetary
sanctions, for any of the offenses described in paragraph 1. 4. Each Party shall endeavor to adopt or maintain appropriate measures to
protect persons who, in good faith, report acts of bribery or corruption described in
paragraph 1.
Article 18.9: Cooperation in International Fora
The Parties recognize the importance of regional and multilateral initiatives
to eliminate bribery and corruption in international trade and investment. The Parties
shall work jointly to encourage and support appropriate initiatives in relevant international fora.
Article 18.10: Definitions
For purposes of this Section:
act or refrain from acting in relation to the performance of official duties
includes any use of the official’s position, whether or not within the official’s authorized
competence;
foreign official means any person holding a legislative, administrative,
or judicial office of a foreign country, at any level of government, whether appointed or elected;
any person exercising a public function for a foreign country at any level of government, including
for a public agency or public enterprise; and any official or agent of a public international
organization;
public function means any temporary or permanent, paid or honorary
activity, performed by a natural person in the name of a Party or in the service of a Party, such as
procurement, at the central level of government; and
public official means any official or employee of a Party at the central
level of government, whether appointed or elected.
Chapter Nineteen Administration of the Agreement and Trade Capacity Building Section A: Administration of the Agreement
Article 19.1: The Free Trade Commission
1. The Parties hereby establish the Free Trade Commission, comprising
cabinet-level representatives of the Parties, as set out in Annex 19.1, or their designees. 2. The Commission shall:
(a) supervise the implementation of this Agreement; (b) oversee the further elaboration of this Agreement; (c) seek to resolve disputes that may arise regarding the interpretation or
application of this Agreement; (d) supervise the work of all committees and working groups established under
this Agreement; and (e) consider any other matter that may affect the operation of this
Agreement.
3. The Commission may:
(a) establish and delegate responsibilities to committees and working groups; (b) modify in fulfillment of the Agreement’s objectives:
(i) the Schedules attached to Annex 3.3 (Tariff Elimination), by accelerating tariff elimination; (ii) the rules of origin established in Annex 4.1 (Specific Rules of Origin);
(iii) the Common Guidelines referenced in Article 4.21 (Common Guidelines); and (iv) Annexes 9.1.2(b)(i), 9.1.2(b)(ii), and 9.1.2(b)(iii) (Government Procurement);
(c) issue interpretations of the provisions of this Agreement; (d) seek the advice of non-governmental persons or groups; and (e) take such other action in the exercise of its functions as the Parties
may agree.
4. Each Party shall implement, in accordance with its applicable legal
procedures, any modification referred to in subparagraph 3(b) within such period as the
Parties may agree. 5. The Commission shall establish its rules and procedures. All decisions of
the Commission shall be taken by consensus, unless the Commission otherwise
decides. 6. The Commission shall convene at least once a year in regular session,
unless the Commission otherwise decides. Regular sessions of the Commission shall be
chaired successively by each Party.
Article 19.2: Free Trade Agreement Coordinators
1. Each Party shall appoint a free trade agreement coordinator, as set out in
Annex 19.2. 2. The coordinators shall work jointly to develop agendas and make other
preparations for Commission meetings and shall follow-up on Commission decisions, as
appropriate.
Article 19.3: Administration of Dispute Settlement Proceedings
1. Each Party shall:
(a) designate an office that shall provide administrative assistance to the
panels established under Chapter Twenty (Dispute Settlement) and perform such other functions as the Commission may direct; and (b) notify the Commission of the location of its designated office.
2. Each Party shall be responsible for:
(a) the operation and costs of its designated office; and (b) the remuneration and payment of expenses of panelists and experts, as set
out in Annex 19.3.
Section B: Trade Capacity Building
Article 19.4: Committee on Trade Capacity Building
1. Recognizing that trade capacity building assistance is a catalyst for the
reforms and investments necessary to foster trade-driven economic growth, poverty
reduction, and adjustment to liberalized trade, the Parties hereby establish a Committee on Trade
Capacity Building, comprising representatives of each Party. 2. In furtherance of the Parties’ ongoing trade capacity building efforts and
in order to assist each Central American Party and the Dominican Republic to implement this
Agreement and adjust to liberalized trade, each such Party should periodically update and
provide to the Committee its national trade capacity building strategy. 3. The Committee shall:
(a) seek the prioritization of trade capacity building projects at the
national or regional level, or both; (b) invite appropriate international donor institutions, private sector
entities, and nongovernmental organizations to assist in the development and implementation of trade capacity building projects in accordance with the priorities set out in
each national trade capacity building strategy; (c) work with other committees or working groups established under this
Agreement, including through joint meetings, in support of the development and implementation of trade capacity building projects in accordance with the priorities set out in each national trade capacity building strategy;
(d) monitor and assess progress in implementing trade capacity building
projects; and (e) provide a report annually to the Commission describing the Committee’s activities, unless the Committee otherwise decides.
4. During the transition period, the Committee shall meet at least twice a
year, unless the Committee otherwise decides. 5. The Committee may establish terms of reference for the conduct of its
work. 6. The Committee may establish ad hoc working groups, which may
comprise government or non-government representatives, or both. 7. All decisions of the Committee shall be taken by consensus, unless the
Committee otherwise decides. 8. The Parties hereby establish an initial working group on customs
administration and trade facilitation, which shall work under and report to the Committee.
Annex 19.1 The Free Trade Commission
The Free Trade Commission shall be composed of: (a) in the case of Costa Rica, the Ministro de Comercio Exterior; (b) in the case of the Dominican Republic, the
Secretario de Estado de
Industria y Comercio; (c) in the case of El Salvador, the Ministro de Economía; (d) in the case of Guatemala, the Ministro de Economía;
(e) in the case of Honduras, the Secretario de Estado en los Despachos de
Industria y Comercio; (f) in the case of Nicaragua, the Ministro de Fomento, Industria y
Comercio; and (g) in the case of the United States, the United States Trade Representative, or their successors.
Annex 19.1.4 Implementation of Modifications Approved by the Commission
1. In the case of Costa Rica, decisions of the Commission under Article
19.1.3(b) will be equivalent to the instrument referred to in article 121.4, third paragraph (protocolo
de menor rango) of the Constitución Política de la República de Costa Rica. 2. In the case of Honduras, decisions of the Commission under Article
19.1.3(b) will be equivalent to the instrument referred to in article 21 of the Constitución
Política de la República de Honduras.
Annex 19.2 Free Trade Agreement Coordinators
The free trade agreement coordinators shall consist of:
(a) in the case of Costa Rica, the Director General de Comercio Exterior; (b) in the case of the Dominican Republic, the Subsecretario de Estado de
Industria y Comercio Encargado de Comercio Exterior; (c) in the case of El Salvador, the Director de la Dirección de
Administración de Tratados Comerciales del Ministerio de Economía; (d) in the case of Guatemala, the Director de Administración de Comercio
Exterior del Ministerio de Economía; (e) in the case of Honduras, the Director General de Política Comercial e Integración Económica de la Secretaría de Estado en los Despachos de
Industria y Comercio; (f) in the case of Nicaragua, the Director General de Comercio Exterior
del Ministerio de Fomento, Industria y Comercio; and (g) in the case of the United States, the Assistant United States Trade
Representative for the Americas,
or their successors.
Annex 19.3 Remuneration and Payment of Expenses
1. The Commission shall establish the amounts of remuneration and expenses
that will be paid to panelists and experts. 2. The remuneration of panelists and their assistants, experts, their travel
and lodging expenses, and all general expenses of panels shall be borne equally by the
disputing Parties. 3. Each panelist and expert shall keep a record and render a final account of
the person’s time and expenses, and the panel shall keep a record and render a final
account of all general expenses.
Chapter Twenty Dispute Settlement Section A: Dispute Settlement
Article 20.1: Cooperation The Parties shall at all times endeavor to agree on the interpretation and
application ofthis 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 20.2: Scope of Application Except as otherwise provided in this Agreement, the dispute settlement
provisions of this Chapter shall apply:
(a) with respect to the avoidance or settlement of all disputes between the
Parties regarding the interpretation or application of this Agreement; (b) wherever a Party considers that an actual or proposed measure of another
Party is or would be inconsistent with the obligations of this Agreement or that
another Party has otherwise failed to carry out its obligations under this Agreement;
and (c) wherever a Party considers that an actual or proposed measure of another
Party causes or would cause nullification or impairment in the sense of Annex 20.2.
Article 20.3: Choice of Forum
1. Where a dispute regarding any matter arises under this Agreement and under
another free trade agreement to which the disputing Parties are party or the WTO
Agreement, the complaining Party may select the forum in which to settle the dispute. 2. Once the complaining Party has requested a panel under an agreement
referred to in paragraph 1, the forum selected shall be used to the exclusion of the others.
Article 20.4: Consultations
1. Any Party may request in writing consultations with any other Party with
respect to 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 the other Parties, and
shall set out the reasons for the request, including identification of the actual or proposed
measure or other matter at issue and an indication of the legal basis for the complaint. 3. A Party that considers it has a substantial trade interest in the matter
may participate inthe consultations on delivery of written notice to the other Parties within
seven days of the date of delivery of the request for consultations. The Party shall include in its
notice an explanation of its substantial trade interest in the matter. 4. Consultations on matters regarding perishable goods1
shall commence within 15 days of the date of delivery of the request. 5. The consulting 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 consulting Parties shall:
(a) provide sufficient information to enable a full examination of how the
actual or proposed measure or other matter might affect the operation and application
of this Agreement; and (b) treat any confidential information exchanged in the course of
consultations on the same basis as the Party providing the information.
6. In consultations under this Article, a consulting Party may request
another consulting Party to make available personnel of its government agencies or other
regulatory bodies who have expertise in the matter subject to consultations.2
Article 20.5: Commission – Good Offices, Conciliation, and Mediation
1. If the consulting Parties fail to resolve a matter pursuant to Article
20.4 within:
(a) 60 days of delivery of a request for consultations; (b) 15 days of delivery of a request for consultations in matters regarding
perishable goods; or (c) such other period as they may agree,
any such Party may request in writing a meeting of the Commission.3 2. A consulting Party may also request in writing a meeting of the Commission
where consultations have been held pursuant to Article 16.6 (Cooperative Labor
Consultations), Article 17.10 (Collaborative Environmental Consultations), or Article 7.8 (Committee
on Technical Barriers to Trade). 3. The requesting Party shall deliver the request to the other Parties, and
shall set out the reasons for the request, including identification of the actual or proposed
measure or other matter at issue and an indication of the legal basis for the complaint. 4. Unless it decides otherwise, the Commission shall convene within ten days
of delivery ofthe request and shall endeavor to resolve the dispute promptly. The
Commission may:
(a) call on such technical advisers or create such working groups or expert
groups as it deems necessary; (b) have recourse to good offices, conciliation, mediation, or such other
dispute resolution procedures; or (c) make recommendations,
as may assist the consulting Parties to reach a mutually satisfactory
resolution of the dispute. 5. Unless it decides otherwise, the Commission shall consolidate two or more
proceedings before it pursuant to this Article regarding the same measure or matter. The
Commission may consolidate two or more proceedings regarding other matters before it
pursuant to this Article that it determines are appropriate to be considered jointly.4
Article 20.6: Request for an Arbitral Panel
1. If the consulting Parties fail to resolve a matter within:
(a) 30 days after the Commission has convened pursuant to Article 20.5; (b) 30 days after the Commission has convened in respect of the matter most
recently referred to it, where proceedings have been consolidated pursuant to Article 20.5.5; (c) 30 days after a Party has delivered a request for consultations under
Article 20.4 in a matter regarding perishable goods, if the Commission has not convened pursuant to Article 20.5.4; (d) 75 days after a Party has delivered a request for consultations under
Article 20.4, if the Commission has not convened pursuant to Article 20.5.4; or (e) such other period as the consulting Parties may agree,
any consulting Party that requested a meeting of the Commission with regard
to the measure or other matter in accordance with Article 20.5 may request in writing the
establishment of an arbitral panel to consider the matter. The requesting Party shall deliver the
request to the other Parties, and shall set out the reasons for the request, including
identification of the measure or other matter at issue and an indication of the legal basis for the complaint. 2. An arbitral panel shall be established upon delivery of a request. 3. A Party that is eligible under paragraph 1 to request the establishment of
a panel and considers it has a substantial interest in the matter may join the arbitral
panel proceedings as a complaining Party on delivery of written notice to the other Parties. The
notice shall be delivered at the earliest possible time, and in any event no later than seven
days after the date of delivery of the request by the Party for the establishment of a panel. 4. If a Party does not join as a complaining Party in accordance with
paragraph 3, it normally shall refrain thereafter from initiating or continuing:
(a) a dispute settlement procedure under this Agreement; or (b) a dispute settlement proceeding under the WTO Agreement or under another
free trade agreement to which it and the Party complained against are party, on grounds that are substantially equivalent to those available to it under this Agreement,
regarding the same matter in the absence of a significant change in economic
or commercial circumstances. 5. Unless otherwise agreed by the disputing Parties, the panel shall be
established and perform its functions in a manner consistent with the provisions of this
Chapter. 6. An arbitral panel may not be established to review a proposed measure.
Article 20.7: Roster
1. The Parties shall establish within six months of the date of entry into
force of this Agreement and maintain a roster of up to 70 individuals who are willing and
able to serve as panelists. Unless the Parties otherwise agree, up to eight members of the
roster shall be nationals of each Party, and up to 14 members of the roster shall be selected from
among individuals who are not nationals of any Party. The roster members shall be appointed by
consensus, and may be reappointed. Once established, a roster shall remain in effect for a minimum
of three years, and shall remain in effect thereafter until the Parties constitute a new roster.
The Parties may appoint a replacement where a roster member is no longer available to serve. 2. Roster members shall:
(a) have expertise or experience in law, international trade, other matters
covered by this Agreement, or the resolution of disputes arising under international
trade agreements; (b) be chosen strictly on the basis of objectivity, reliability, and sound
judgment; (c) be independent of, and not be affiliated with or take instructions from,
any Party; and (d) comply with a code of conduct to be established by the Commission.
Article 20.8: Qualifications of Panelists All panelists shall meet the qualifications set out in Article 20.7.2.
Individuals may not serve as panelists for a dispute in which they have participated pursuant to
Article 20.5.4.
Article 20.9: Panel Selection
1. The Parties shall apply the following procedures in selecting a panel:
(a) the panel shall comprise three members; (b) the disputing Parties shall endeavor to agree on the chair of the panel
within 15 days of the delivery of the request for the establishment of the panel. If
the disputing Parties are unable to agree on the chair within this period, the
chair shall be selected by lot within three days from among the roster members who are
not nationals of a disputing Party; (c) within 15 days of selection of the chair, the complaining Party or
Parties shall select one panelist and the Party complained against shall select one
panelist; (d) if the complaining Party or Parties or the Party complained against fail
to select a panelist within this period, the panelist shall be selected by lot within
three days from among the roster members who are nationals of such Party or Parties, as
the case may be; and (e) each disputing Party shall endeavor to select panelists who have
expertise or experience relevant to the subject matter of the dispute, as appropriate.
2. Panelists shall normally be selected from the roster. Any disputing Party
may exercise a peremptory challenge against any individual not on the roster who is proposed
as a panelist by a disputing Party within 15 days after the individual has been proposed. 3. If a disputing Party believes that a panelist is in violation of the code
of conduct, the disputing 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 20.10: Rules of Procedure
1. The Commission shall establish by the date of entry into force of this
Agreement Model Rules of Procedure, which shall ensure:
(a) a right to at least one hearing before the panel, which, subject to
subparagraph (e), shall be open to the public; (b) an opportunity for each disputing Party to provide initial and rebuttal
written submissions; (c) that each participating Party’s written submissions, written versions of
its oral statement, and written responses to a request or questions from the panel
shall be public, subject to subparagraph (e); (d) that the panel will consider requests from non-governmental entities in
the disputing Parties’ territories to provide written views regarding the dispute
that may assist the panel in evaluating the submissions and arguments of the
disputing Parties; and (e) the protection of confidential information.
2. Unless the disputing Parties otherwise agree, the panel shall conduct its
proceedings in accordance with the Model Rules of Procedure. 3. The Commission may modify the Model Rules of Procedure. 4. Unless the disputing 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:
“To examine, in the light of the relevant provisions of this Agreement, the
matter referenced in the panel request and to make findings, determinations, and recommendations as provided in Articles 20.10.6 and 20.13.3 and to deliver
the written reports referred to in Articles 20.13 and 20.14.”
5. If a complaining Party in its panel request has identified that a measure
has nullified or impaired benefits, in the sense of Annex 20.2, the terms of reference shall
so indicate. 6. If a disputing Party wishes the panel to make findings as to the degree of
adverse trade effects on any Party of a Party’s failure to conform with the obligations of
this Agreement or of a Party’s measure found to have caused nullification or impairment in the sense
of Annex 20.2, the terms of reference shall so indicate.
Article 20.11: Third Party Participation A Party that is not a disputing Party, on delivery of a written notice to the
disputing Parties, shall be entitled to attend all hearings, to make written and oral
submissions to the panel, and to receive written submissions of the disputing Parties in accordance
with the Model Rules of Procedure. Those submissions shall be reflected in the final report of the
panel.
Article 20.12: Role of Experts On request of a disputing 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 disputing Parties so agree and subject to such terms and conditions as such
Parties may agree.
Article 20.13: Initial Report
1. Unless the disputing Parties otherwise agree, the panel shall base its
report on the relevant provisions of this Agreement, the submissions and arguments of the
disputing Parties, and on any information before it pursuant to Article 20.12. 2. If the disputing Parties request, the panel may make recommendations for
resolution of the dispute. 3. Unless the disputing Parties otherwise agree, the panel shall, within 120
days after the last panelist is selected or such other period as the Model Rules of
Procedure established pursuant to Article 20.10 may provide, present to the disputing Parties an
initial report containing:
(a) findings of fact, including any findings pursuant to a request under
Article 20.10.6; (b) its determination as to whether a disputing Party has not conformed with
its obligations under this Agreement or that a Party’s measure is causing
nullification or impairment in the sense of Annex 20.2, or any other determination
requested in the terms of reference; and (c) its recommendations, if the disputing Parties have requested them, for
resolution of the dispute.
4. When the panel considers that it cannot provide its report within 120
days, it shall inform the disputing Parties in writing of the reasons for the delay together with
an estimate of the period within which it will provide its report. In no case should the period
to provide the report exceed 180 days. The panel shall inform the disputing Parties of any
determination under this paragraph no later than seven days after the initial written submission of
the complaining Party or Parties and shall adjust the remainder of the schedule accordingly. 5. Panelists may furnish separate opinions on matters not unanimously agreed. 6. A disputing Party may submit written comments to the panel on its initial
report within 14 days of presentation of the report or within such other period as the
disputing Parties may agree. 7. After considering any written comments on the initial report, the panel
may reconsider its report and make any further examination it considers appropriate.
Article 20.14: Final Report
1. The panel shall present a final report to the disputing Parties, including
any separate opinions on matters not unanimously agreed, within 30 days of presentation of
the initial report, unless the disputing Parties otherwise agree. The disputing Parties shall
release the final report to the public within 15 days thereafter, subject to the protection of
confidential information. 2. No panel may, either in its initial report or its final report, disclose
which panelists are associated with majority or minority opinions.
Article 20.15: Implementation of Final Report
1. On receipt of the final report of a panel, the disputing Parties shall
agree on the resolution of the dispute, which normally shall conform with the determinations and
recommendations, if any, of the panel. 2. If, in its final report, the panel determines that a disputing Party has
not conformed with its obligations under this Agreement or that a disputing Party’s measure is
causing nullification or impairment in the sense of Annex 20.2, the resolution, whenever possible,
shall be to eliminate the non-conformity or the nullification or impairment.5 3. Where appropriate, the disputing Parties may agree on a mutually
satisfactory action plan to resolve the dispute, which normally shall conform with the determinations
and recommendations, if any, of the panel. If the disputing Parties agree on such
an action plan, a complaining Party may have recourse to Article 20.16.2 or Article 20.17.1, as
the case may be, only if it considers that the Party complained against has failed to carry
out the action plan.6
Article 20.16: Non-Implementation −
Suspension of Benefits
1. If a panel has made a determination of the type described in Article
20.15.2, and the disputing Parties are unable to reach agreement on a resolution pursuant to
Article 20.15 within 45 days of receiving the final report, or such other period as the disputing
Parties agree, the Party complained against shall enter into negotiations with the complaining Party
or Parties with a view to developing mutually acceptable compensation. 2. If the disputing Parties:
(a) are unable to agree on compensation within 30 days after the period for developing such compensation has begun; or (b) have agreed on compensation or on a resolution pursuant to Article 20.15
and a complaining Party considers that the Party complained against has failed to observe the terms of the agreement,
any such complaining Party may at any time thereafter provide written notice
to the Party complained against that it intends to suspend the application to the Party
complained against of benefits of equivalent effect. The notice shall specify the level of benefits
that the Party proposes to suspend. Subject to paragraph 6, the complaining Party may begin
suspending benefits 30 days after the later of the date on which it provides notice
under this paragraph or the panel issues its determination under paragraph 3, as the case may be. 3. If the Party complained against considers that:
(a) the level of benefits proposed to be suspended is manifestly excessive;
or (b) it has eliminated the non-conformity or the nullification or impairment
that the panel has found,
it may, within 30 days after the complaining Party provides notice under
paragraph 2, request that the panel be reconvened to consider the matter. The Party complained
against shall deliver its request in writing to the complaining Party. The panel shall reconvene as
soon as possible after delivery of the request and shall present its determination to the
disputing Parties within 90 days after it reconvenes to review a request under subparagraph (a) or (b),
or within 120 days for a request under subparagraphs (a) and (b). If the panel determines that the
level of benefits proposed to be suspended is manifestly excessive, it shall determine the
level of benefits it considers to be of equivalent effect. 4. The complaining Party may suspend benefits up to the level the panel has
determined under paragraph 3 or, if the panel has not determined the level, the level
the complaining Party has proposed to suspend under paragraph 2, unless the panel has determined
that the Party complained against has eliminated the non-conformity or the nullification or
impairment. 5. In considering what benefits to suspend pursuant to paragraph 2:
(a) the complaining Party should first seek to suspend benefits in the same
sector or sectors as that affected by the measure or other matter that the panel has
found to be inconsistent with the obligations of this Agreement or to have caused nullification or impairment in the sense of Annex 20.2; and (b) if the complaining Party considers that it is not practicable or
effective to suspend benefits in the same sector or sectors, it may suspend benefits in other
sectors.
6. The complaining Party may not suspend benefits if, within 30 days after it
provides written notice of intent to suspend benefits or, if the panel is reconvened
under paragraph 3, within 20 days after the panel provides its determination, the Party
complained against provides written notice to the complaining Party that it will pay an annual monetary
assessment. The disputing Parties shall consult, beginning no later than ten days after the
Party complained against provides notice, with a view to reaching agreement on the amount of
the assessment. If the disputing Parties are unable to reach an agreement within 30 days after
consultations begin, the amount of the assessment shall be set at a level, in U.S. dollars, equal
to 50 percent of the level of the benefits the panel has determined under paragraph 3 to be of
equivalent effect or, if the panel has not determined the level, 50 percent of the level that the
complaining Party has proposed to suspend under paragraph 2. 7. Unless the Commission otherwise decides, a monetary assessment shall be
paid to the complaining Party in U.S. dollars, or in an equivalent amount of the currency
of the Party complained against, in equal, quarterly installments beginning 60 days after
the Party complained against gives notice that it intends to pay an assessment. Where
the circumstances warrant, the Commission may decide that an assessment shall be paid into a
fund established by the Commission and expended at the direction of the Commission for
appropriate initiatives to facilitate trade between the disputing Parties, including by further reducing
unreasonable trade barriers or by assisting a disputing Party in carrying out its obligations
under this Agreement.7
8. If the Party complained against fails to pay a monetary assessment, the
complaining Party may suspend the application to the Party complained against of benefits in
accordance with paragraph 4. 9. This Article shall not apply with respect to a matter described in Article
20.17.1.
Article 20.17: Non-Implementation In Certain Disputes
1. If, in its final report, a panel determines that a Party has not conformed
with its obligations under Article 16.2.1(a) (Enforcement of Labor Laws) or Article
17.2.1(a) (Enforcement of Environmental Laws), and the disputing Parties:
(a) are unable to reach agreement on a resolution pursuant to Article 20.15
within 45 days of receiving the final report; or (b) have agreed on a resolution pursuant to Article 20.15 and a complaining
Party considers that the Party complained against has failed to observe the terms
of the agreement,
any such complaining Party may at any time thereafter request that the panel
be reconvened to impose an annual monetary assessment on the Party complained against. The
complaining Party shall deliver its request in writing to the Party complained against. The
panel shall reconvene as soon as possible after delivery of the request. 2. The panel shall determine the amount of the monetary assessment in U.S.
dollars within 90 days after it reconvenes under paragraph 1. In determining the amount of
the assessment, the panel shall take into account:
(a) the bilateral trade effects of the Party’s failure to effectively enforce
the relevant law; (b) the pervasiveness and duration of the Party’s failure to effectively
enforce the relevant law; (c) the reasons for the Party’s failure to effectively enforce the relevant
law, including, where relevant, its failure to observe the terms of an action
plan; (d) the level of enforcement that could reasonably be expected of the Party
given its resource constraints; (e) the efforts made by the Party to begin remedying the non-enforcement
after the final report of the panel, including through the implementation of any
mutually agreed action plan; and (f) any other relevant factors.
The amount of the assessment shall not exceed 15 million U.S. dollars
annually, adjusted for inflation as specified in Annex 20.17. 3. On the date on which the panel determines the amount of the monetary
assessment under paragraph 2, or at any time thereafter, the complaining Party may provide
notice in writing to the Party complained against demanding payment of the monetary assessment. The
monetary assessment shall be payable in U.S. dollars, or in an equivalent amount of
the currency of the Party complained against, in equal, quarterly installments beginning 60 days
after the complaining Party provides such notice. 4. Assessments shall be paid into a fund established by the Commission and
shall be expended at the direction of the Commission for appropriate labor or
environmental initiatives, including efforts to improve or enhance labor or environmental law
enforcement, as the case may be, in the territory of the Party complained against, consistent with its
law. In deciding how to expend monies paid into the fund, the Commission shall consider the views of
interested persons in the disputing Parties’ territories.8 5. If the Party complained against fails to pay a monetary assessment, the
complaining Party may take other appropriate steps to collect the assessment or otherwise
secure compliance. These steps may include suspending tariff benefits under the Agreement as
necessary to collect the assessment, while bearing in mind the Agreement’s objective of
eliminating barriers to trade and while seeking to avoid unduly affecting parties or interests not party to
the dispute.
Article 20.18: Compliance Review
1. Without prejudice to the procedures set out in Article 20.16.3, if the
Party complained against considers that it has eliminated the non-conformity or the
nullification or impairment that the panel has found, it may refer the matter to the panel by providing
written notice to the complaining Party or Parties. The panel shall issue its report on the matter
within 90 days after the Party complained against provides notice. 2. If the panel decides that the Party complained against has eliminated the
non-conformity or the nullification or impairment, the complaining Party or Parties shall
promptly reinstate any benefits that Party has or those Parties have suspended under Article 20.16
or Article 20.17 and the Party complained against shall no longer be required to pay any monetary
assessment it has agreed to pay under Article 20.16.6 or that has been imposed on it under
Article 20.17.1.
Article 20.19: Five-Year Review The Commission shall review the operation and effectiveness of Articles 20.16
and 20.17 not later than five years after the Agreement enters into force, or within
six months after benefits have been suspended or monetary assessments have been imposed in five
proceedings initiated under this Chapter, whichever occurs first.
Section B: Domestic Proceedings and Private Commercial Dispute Settlement Article 20.20: Referral 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 any Party considers
would merit its intervention, or if a court or administrative body solicits the views of a
Party, that Party shall notify the other Parties. The Commission shall endeavor 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, any Party may submit its own views
to the court or administrative body in accordance with the rules of that forum.
Article 20.21: Private Rights No Party may provide for a right of action under its law against any other
Party on the ground that the other Party has failed to conform with its obligations under
this Agreement.
Article 20.22: 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 may establish an Advisory Committee on Private Commercial
Disputes comprising persons with expertise or experience in the resolution of private
international commercial disputes. 5. This committee shall:
(a) 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; and (b) when the committee considers appropriate, promote technical cooperation between the Parties, in furtherance of the objectives identified in paragraph
1.
Annex 20.2 Nullification or Impairment
1. If any Party considers that any benefit it could reasonably have expected
to accrue to it under any provision of:
(a) Chapters Three through Five (National Treatment and Market Access for
Goods, Rules of Origin and Origin Procedures, and Customs Administration and Trade Facilitation); (b) Chapter Seven (Technical Barriers to Trade); (c) Chapter Nine (Government Procurement); (d) Chapter Eleven (Cross-Border Trade in Services); or (e) Chapter Fifteen (Intellectual Property Rights),
is being nullified or impaired as a result of the application of any measure
that is not inconsistent with this Agreement, the Party may have recourse to dispute settlement under
this Chapter. 2. A Party may not invoke paragraph
1(d) or (e) with respect to any measure subject to an exception under Article 21.1 (General Exceptions).
Annex 20.17 Inflation Adjustment Formula for Monetary Assessments
1. An annual monetary assessment imposed before December 31, 2005 shall not
exceed 15 million dollars (U.S.). 2. Beginning January 1, 2006, the 15 million dollar (U.S.) annual cap shall
be adjusted for inflation in accordance with paragraphs 3 through 5. 3. The period used for the accumulated inflation adjustment shall be calendar
year 2004 through the most recent calendar year preceding the one in which the
assessment is owed. 4. The relevant inflation rate shall be the U.S. inflation rate as measured
by the Producer Price Index for Finished Goods published by the U.S. Bureau of Labor
Statistics. 5. The inflation adjustment shall be estimated according to the following
formula :
$15 million x (1+ πi )
= A π i = accumulated U.S. inflation rate from calendar year 2004 through the most
recent calendar year preceding the one in which the assessment is owed. A = cap for the assessment for the year in question.
Chapter Twenty-One Exceptions Article 21.1: General Exceptions
1. For purposes of Chapters Three through Seven (National Treatment and
Market Access for Goods, Rules of Origin and Origin Procedures, Customs Administration and
Trade Facilitation, Sanitary and Phytosanitary Measures, and Technical Barriers to
Trade), Article XX of the GATT 1994 and its interpretive notes are incorporated into and made
part of this Agreement, mutatis mutandis. 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. 2. For purposes of Chapters Eleven, Thirteen, and Fourteen1
(Cross-Border Trade in Services, Telecommunications, and Electronic Commerce), Article XIV of the
GATS (including its footnotes) is incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XIV(b) of the
GATS include environmental measures necessary to protect human, animal, or plant life or
health.
Article 21.2: Essential Security
Nothing in this Agreement shall be construed:
(a) to require a Party to furnish or allow access to any information the
disclosure of which it determines to be contrary to its essential security interests; or (b) to preclude a Party from applying measures that it considers necessary
for the fulfillment of its obligations with respect to the maintenance or restoration
of international peace or security, or the protection of its own essential
security interests.
Article 21.3: Taxation
1. Except as set out in this Article, nothing in this Agreement shall apply
to taxation measures. 2. Nothing in this Agreement shall affect the rights and obligations of any
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.
In the case of a tax convention between two or more Parties, the competent authorities under that
convention shall have sole responsibility for determining whether any inconsistency exists
between this Agreement and that convention. 3. Notwithstanding paragraph 2:
(a) Article 3.2 (National Treatment) and such other provisions of this
Agreement as are necessary to give effect to that Article shall apply to taxation measures
to the same extent as does Article III of the GATT 1994; and (b) Article 3.10 (Export Taxes) shall apply to taxation measures.
4. Subject to paragraph 2:
(a) Article 11.2 (National Treatment) and Article 12.2 (National Treatment)
shall apply to taxation measures on income, capital gains, or on the taxable
capital of corporations that relate to the purchase or consumption of particular
services, except that nothing in this subparagraph shall prevent a Party from
conditioning the receipt or continued receipt of an advantage relating to the purchase or consumption of particular services on requirements to provide the service in
its territory; and (b) Articles 10.3 (National Treatment) and 10.4 (Most-Favored-Nation
Treatment), Articles 11.2 (National Treatment) and 11.3 (Most-Favored-Nation Treatment) and Articles 12.2 (National Treatment) and 12.3 (Most-Favored-Nation Treatment) shall apply to all taxation measures, other than those on income, capital gains, or on the taxable capital of corporations, taxes on estates, inheritances, gifts, and generation-skipping transfers,
except that nothing in those Articles shall apply:
(c) any most-favored-nation obligation with respect to an advantage accorded
by a Party pursuant to any tax convention; (d) to a non-conforming provision of any existing taxation measure; (e) to the continuation or prompt renewal of a non-conforming provision of
any existing taxation measure; (f) to an amendment to a non-conforming provision of any existing taxation
measure to the extent that the amendment does not decrease its conformity, at the
time of the amendment, with any of those Articles; (g) to the adoption or enforcement of any taxation measure aimed at ensuring
the equitable or effective imposition or collection of taxes (as permitted by
Article XIV(d) of the GATS); or (h) to a provision that conditions the receipt, or continued receipt, of an
advantage relating to the contributions to, or income of, pension trusts or pension
plans on a requirement that the Party maintain continuous jurisdiction over the pension
trust or pension plan.
5. Subject to paragraph 2 and without prejudice to the rights and obligations
of the Parties under paragraph 3, Article 10.9.2, 10.9.3, and 10.9.4 (Performance
Requirements) shall apply to taxation measures. 6. Article 10.7 (Expropriation and Compensation) and Article 10.16
(Submission of a Claim to Arbitration) shall apply to a taxation measure alleged to be an
expropriation or a breach of an investment agreement or investment authorization. However, no investor may
invoke Article 10.7 as the basis of a claim where it has been determined pursuant to this
paragraph that the measure is not an expropriation. An investor that seeks to invoke Article
10.7 with respect to a taxation measure must first refer to the competent authorities of the Parties
of the claimant and the respondent set out in Annex 21.3 at the time that it gives its notice of
intent under Article 10.16.2 the issue of whether that taxation measure involves an expropriation.
If the competent authorities do not agree to consider the issue or, having agreed to consider
it, fail to agree that the measure is not an expropriation within a period of six months of such
referral, the investor may submit its claim to arbitration under Article 10.16.
Article 21.4: Balance of Payments Measures on Trade in Goods
Should a Party decide to impose measures for balance of payments purposes, it
shall do so only in accordance with that Party’s rights and obligations under the GATT
1994, including the Declaration on Trade Measures Taken for Balance of Payments Purposes
(1979 Declaration) and the Understanding on the Balance of Payments Provisions of the GATT
1994 (BOP Understanding). In adopting such measures, the Party shall immediately
consult with the other Parties and shall not impair the relative benefits accorded to the other
Parties under this Agreement.2
Article 21.5: Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to furnish or
allow access to confidential information the disclosure of which would impede law
enforcement, or otherwise be contrary to the public interest, or which would prejudice the legitimate
commercial interests of particular enterprises, public or private.
Article 21.6: Definitions
For purposes of this Chapter:
tax convention means a convention for the avoidance of double taxation or
other international taxation agreement or arrangement; and
taxes and taxation measures do not include:
(a) a customs duty; or (b) the measures listed in exceptions (b) and (c) of the definition of
customs duty.
Annex 21.3 Competent Authorities
For purposes of this Chapter:
competent authorities means
(a) in the case of Costa Rica, the Viceministro de Hacienda; (b) in the case of the Dominican Republic, the Subsecretario de Estado de
Finanzas; (c) in the case of El Salvador, the Viceministro de Hacienda; (d) in the case of Guatemala, the Viceministro de Finanzas Públicas; (e) in the case of Honduras, the
Subsecretario en el Despacho de Finanzas; (f) in the case of Nicaragua, the Viceministro de Hacienda y Crédito
Publico; and (g) in the case of the United States, the Assistant Secretary of the Treasury
(Tax Policy), Department of the Treasury,
or their successors.
Chapter Twenty-Two Final Provisions Article 22.1: Annexes, Appendices, and Footnotes
The Annexes, Appendices, and footnotes to this Agreement constitute an
integral part of this Agreement.
Article 22.2: Amendments
1. The Parties may agree on any amendment of this Agreement. The original
English and Spanish texts of any amendment shall be deposited with the Depositary, which
shall promptly provide a certified copy to each Party. 2. When so agreed, and approved in accordance with the applicable legal
procedures of each Party, an amendment shall constitute an integral part of this Agreement to
take effect on the date on which all Parties have notified the Depositary in writing that they have
approved the amendment or on such other date as the Parties may agree.
Article 22.3: Amendment of the WTO Agreement
If any provision of the WTO Agreement that the Parties have incorporated into
this Agreement is amended, the Parties shall consult with a view to amending the
relevant provision of this Agreement, as appropriate, in accordance with Article 22.2.
Article 22.4: Reservations
No Party may enter a reservation in respect of any provision of this
Agreement without the written consent of the other Parties.
Article 22.5: Entry into Force
1.
(a) This Agreement shall enter into force on January 1, 2005, provided
that the United States and one or more other signatories notify the Depositary in
writing by that date that they have completed their applicable legal procedures. (b) If this Agreement does not enter into force on January 1, 2005, this
Agreement shall enter into force after the United States and one or more other
signatories make such a notification, on such later date as they may agree.
2. Thereafter, this Agreement shall enter into force for any other signatory
90 days after the date on which that signatory notifies the Depositary in writing that it has
completed its applicable legal procedures. Unless the Parties otherwise agree, a signatory may not
provide a notification under this paragraph later than two years after the date of entry into force
of this Agreement. 3. The Depositary shall promptly inform the Parties and non-Party signatories
of any notification under paragraph 1 or 2.
Article 22.6: Accession
1. Any country or group of countries may accede to this Agreement subject to
such terms and conditions as may be agreed between such country or countries and the
Commission and following approval in accordance with the applicable legal procedures of each
Party and acceding country. 2. The instrument of accession shall be deposited with the Depositary, which
shall promptly inform each Party of the accession.
Article 22.7: Withdrawal
1. Any Party may withdraw from this Agreement by providing written notice of
withdrawal to the Depositary. The Depositary shall promptly inform the Parties of such
notification. 2. A withdrawal shall take effect six months after a Party provides written
notice under paragraph 1, unless the Parties agree on a different period. If a Party
withdraws, the Agreement shall remain in force for the remaining Parties.
Article 22.8: Depositary
The original English and Spanish texts of this Agreement shall be deposited
with the General Secretariat of the Organization of American States, which shall serve
as depositary. The Depositary shall promptly provide a certified copy of the original texts to
each signatory.
Article 22.9: Authentic Texts
The English and Spanish texts of this Agreement are equally authentic.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their
respective Governments, have signed this Agreement.
DONE, at Washington in English and Spanish, on this 5th
day of August, 2004.
FOR THE GOVERNMENT OF THE REPUBLIC OF COSTA RICA: FOR THE GOVERNMENT OF THE DOMINICAN REPUBLIC: FOR THE GOVERNMENT OF THE REPUBLIC OF EL SALVADOR:
FOR THE GOVERNMENT OF THE REPUBLIC OF GUATEMALA: FOR THE GOVERNMENT OF THE REPUBLIC OF HONDURAS:
FOR THE GOVERNMENT OF THE REPUBLIC OF NICARAGUA: FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:
__________________________________________________________________
Chapter Thirteen
1 In place of the obligations established in this
Chapter, Costa Rica shall undertake the specific commitments set out in Annex 13.
2 This Article is subject to Annex 13.3. Paragraphs 2
through 4 of this Article do not apply with respect to suppliers of commercial mobile services. Nothing in this Article shall be construed to
preclude a Party from imposing the requirements set out in this Article on suppliers of commercial mobile
services.
3 In complying with this paragraph, the Dominican
Republic, El Salvador, Guatemala, Honduras, and Nicaragua may take into account the economic feasibility of providing number
portability.
4 This Article is subject to Annex 13.3. This Article
does not apply with respect to suppliers of commercial mobile services. This Article is without prejudice to any rights or obligations that
a Party may have under the GATS, and
nothing in this Article shall be construed to preclude a Party from imposing
the requirements set out in this Article
on suppliers of commercial mobile services.
5 For purposes of paragraph 2, “maintain” a measure
includes the actual implementation of such measure, as appropriate.
6 For purposes of subparagraph (a), wholesale rates set
pursuant to a Party’s law and regulations satisfy the standard of reasonableness.
7 Where provided in its law or regulations, a Party may
prohibit a reseller that obtains, at wholesale rates, a public telecommunications service available at retail to only a limited category of
subscribers from offering the service to a
different category of subscribers.
8 For purposes of applying this provision, each Party
may, through its telecommunications regulatory body, classify
which services in its territory are information services.
9 Each Party shall endeavor to ensure that its
telecommunications regulatory body has adequate resources to carry
out its functions.
10 In the United States, this body may be a state
regulatory authority.
Annex 13
1 If Costa Rica requires a license for the provision of a listed service, Costa Rica shall make licenses
available within the timeframes specified in this subparagraph.
2 Private network services (closed-user group services) mean networks provided for communications
with no interconnection to the public switched telecommunications network at either end. Nothing in this Annex shall be construed to prevent Costa Rica from prohibiting persons operating private
networks from using their networks to supply public telecommunications networks or services to third parties. 3 Internet services shall include
electronic mail, retrieval and processing of on-line information and databases and electronic data exchange services, and offering the ability to access the Internet.
4 Mobile wireless services mean voice, data, and/or broadband services provided by radio electric means in specifically allocated bands, using mobile or fixed terminal equipment, using
cellular, PCS (Personal Communications Service), satellite, or any other similar technology that may be developed in the future for these services. 5 For
greater certainty, this section does not create market access rights or obligations. 6 The competent domestic authority shall be separate from and not
accountable to any supplier of telecommunications services. 7 For purposes of subparagraph (a), conditions include technical regulations and specifications, as
well as the quality of interconnection. 8 The independent domestic body shall be separate from and not accountable to any supplier of
telecommunications services. 9 The telecommunications regulatory authority will have the competence within its territory to classify the
services included in the information services category. Chapter Fourteen
1 For greater certainty, this paragraph does not provide any right to a non-Party or a person of a non-Party.
2 For greater certainty, digital products do not include digitized representations of financial instruments.
Chapter Fifteen
1 The Parties recognize that the UPOV Convention 1991 contains exceptions to the breeder’s right,
including for acts done privately and for non-commercial purposes, such as private and non-commercial acts of farmers. Further, the Parties recognize that the UPOV Convention 1991 provides for
restrictions to the exercise of a breeder’s right for reasons of public interest, provided that the Parties take all measures necessary to ensure that the breeder receives equitable
remuneration. The Parties also understand that each Party may avail itself of these exceptions and restrictions. Finally, the Parties understand that there is no conflict between the UPOV
Convention 1991 and a Party’s ability to protect and conserve its genetic resources.
2 For purposes
of Articles 15.1.8, 15.1.9, 15.4.2, and 15.7.1, a national of a Party shall also mean, in respect of the relevant right, an entity located in that Party that would meet the criteria for
eligibility for protection provided for in the agreements listed in Article 15.1.2 through 15.1.6 and the TRIPS Agreement.
3 For purposes of this paragraph, “protection” shall include matters affecting the availability, acquisition, scope, maintenance, and enforcement
of intellectual property rights as well as matters affecting the use of intellectual property rights specifically covered by this Chapter. Further, for purposes of this paragraph, “protection”
shall also include the prohibition on circumvention of effective technological measures set out in Article 15.5.7 and the rights and obligations concerning rights management information set out
in Article 15.5.8. 4 A Party may satisfy the requirement for publication by making the measure
available to the public on the Internet. 5 For purposes of this Chapter, “originating” does not have
the meaning ascribed to that term in Article 2.1 (Definitions of General Application). 6 In
determining whether a trademark is well known, the reputation of the trademark need not extend beyond the sector of the public that normally deals with the relevant goods or services.
7 A Party may establish a means to allow licensees to record licenses for the purpose of providing
notice to the public as to the existence of the license. However, no Party may make notice to the public a requirement for asserting any rights under the license.
8 For purposes of this paragraph, legal means to identify means a system that permits applicants to provide
information on the quality, reputation, or other characteristics of the asserted geographical indication. 9
For purposes of this paragraph, the Parties understand that each Party has already established grounds for refusing protection of a trademark under its law, including that (a) the trademark is
likely to be confusingly similar to a geographical indication that is the subject of a registration; and (b) the trademark is likely to be confusingly similar to a pre-existing geographical
indication, the rights to which have been acquired in accordance with the Party’s law. 10
References in this Chapter to “authors, performers, and producers of phonograms” include any successors in interest.
11 With respect to copyrights and related rights in this Chapter, a right to authorize or prohibit or a right to authorize means an exclusive
right. 12 The Parties understand that the reproduction right as set out in this paragraph and in
Article 9 of the Berne Convention for the Protection of Literary and Artistic Works (1971) (Berne Convention) and the exceptions permitted under the Berne Convention and Article
15.5.10(a) fully apply in the digital environment, in particular to the use of works in digital form. 13
With respect to copyright and related rights in this Chapter, a “performance” refers to a performance fixed in a phonogram, unless otherwise specified.
14 For purposes of this Article, fixation includes the finalization of the master tape or its equivalent.
15 Where a Party, on the date it implemented the TRIPS Agreement, had in place a system for
protecting pharmaceutical or agricultural chemical products not involving new chemical entities from unfair commercial use that conferred a period of protection shorter than that specified in
paragraph 1, that Party may retain such system notwithstanding the obligations of paragraph 1. 16
A Party may satisfy the requirement for publication by making the document available to the public on the Internet.
17 For the purpose of this Article, the term “right holder” shall include federations and associations as well as exclusive licensees and other
duly authorized licensees, as appropriate, having the legal standing and authority to assert such rights. The term “licensee” shall include the licensee of any one or more of the exclusive
intellectual property rights encompassed in a given intellectual property. 18 For purposes of
paragraphs 20 through 25: counterfeit trademark goods means any goods, including packaging, bearing without authorization a trademark which is identical to the trademark validly
registered in respect of such goods, or which cannot be distinguished in its essential aspects from such a trademark, and which thereby infringes the rights of the owner of the trademark in
question under the law of the country of importation; and pirated copyright goods means any goods which are copies made without the consent of the right holder or person duly authorized
by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or
a related right under the law of the country of importation. 19 A Party may comply with this
subparagraph in relation to exportation through its measures concerning distribution or trafficking. 20
For purposes of this paragraph, “copyright” shall also include related rights. 21 The Parties
understand that this subparagraph is without prejudice to the availability of defenses to copyright infringement that are of general applicability.
Chapter Sixteen
1 The Parties recall that paragraph 5 of the ILO
Declaration states that labor standards should not be used for protectionist trade purposes.
2 For purposes of paragraphs 4, 5, and 6, the Council
shall consist of the cabinet-level representatives of the consulting Parties or their high-level designees.
Chapter Seventeen
1 The Parties shall designate the secretariat and provide for related arrangements through an exchange of letters or other form of agreement between the Parties.
2 Arrangements will be made for the United States to make available in a timely manner to the other Parties all such submissions, U.S. written responses, and
factual records developed in connection with those submissions. At the request of any Party, the Council shall discuss such documents.
3 For purposes of
paragraphs 4, 5, and 6, the Council shall consist of cabinet-level representatives of the consulting Parties or their designees.
Chapter Twenty
1 For greater certainty, the term “perishable goods”
means perishable agricultural and fish goods classified in chapters 1 through 24 of the Harmonized System.
2 A consulting Party receiving such a request shall
strive to accommodate it. 3 For purposes of this paragraph and paragraphs 2 and
4, the Commission shall consist of the cabinet-level representatives of the consulting Parties, as set out in Annex 19.1 (The Free
Trade Commission), or their designees. 4 For purposes of this paragraph, the Commission shall
consist of the cabinet-level representatives of the consulting Parties in the relevant proceedings, as set out in Annex 19.1 (The Free Trade
Commission), or their designees. 5 Compensation, the payment of monetary assessments,
and the suspension of benefits are intended as temporary measures pending the elimination of any non-conformity or nullification or
impairment that the panel has found. 6 For greater certainty, as part of an action plan the
disputing Parties may undertake, modify, or enhance cooperation activities. 7 For purposes of this paragraph, the Commission shall
consist of the cabinet-level representatives of the disputing Parties, as set out in Annex 19.1 (The Free Trade Commission), or their
designees. 8 For purposes of this paragraph, the Commission shall
consist of the cabinet-level representatives of the disputing Parties, as set out in Annex 19.1 (The Free Trade Commission), or their
designees.
Chapter Twenty-One
1 This Article is without prejudice to whether digital
products should be classified as goods or services.
2 For greater certainty, this Article applies to
balance of payments measures imposed on trade in goods. |
