(b) under non-discriminatory terms, conditions (including technical standards and specifications) and rates;
(c) of a quality no less favorable than that provided by such public telecommunications service suppliers to their own like services, to like services of non-affiliated service suppliers, or to like services of their subsidiaries or other affiliates;
(d) in a timely manner, on terms, conditions (including technical standards and specifications) and cost-oriented tariffs that are transparent, reasonable, taking into account economic feasibility, and sufficiently unbundled so that providers need not pay for network components or facilities that they do not require for the service to be provided, and
(e) upon request, at points in addition to the network termination points offered to most users, subject to charges reflecting the cost of constructing the necessary additional facilities.
2. In carrying out paragraph 1, 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 users of public telecommunications services, and only use such information to supply those services.
Interconnection Options
3. Each Party shall ensure that suppliers of public telecommunications services of the other Party may interconnect their facilities and equipment with those of suppliers of public telecommunications services in its territory, in accordance with at least one of the following options:
(a) a reference interconnection offer containing rates, terms and conditions that public telecommunications service providers offer each other;
(b) the terms and conditions of an existing interconnection agreement;
(c) through the negotiation of a new interconnection agreement, or
(d) by an interconnection provision issued by the regulatory authority of each Party.
Public Availability of Interconnection Negotiation Procedures
4. Each Party shall make publicly available the procedures applicable to interconnection negotiations with suppliers of public telecommunications services in its territory.
Public Availability of Rates, Terms and Conditions Necessary for Interconnection
5. Each Party shall provide means for suppliers of public telecommunications services of the other Party to obtain the necessary rates, terms and conditions for interconnection offered by a supplier of public telecommunications services, in accordance with each Party's legal system. Such means shall ensure, at a minimum
(a) the public availability of rates, terms and conditions for interconnection with a supplier of public telecommunications services established by the telecommunications regulatory body or other competent body, or
(b) the public availability of the reference interconnection offer.
Article 11.6. Shared Internet Interconnection Charges
The Parties recognise that a provider seeking international Internet interconnection should be able to negotiate with providers of the other Party on a commercial basis. Such negotiations may include negotiations on compensation for the establishment, operation and maintenance of the respective providers' facilities.
Article 11.7. Portability
Each Party shall ensure that suppliers of public telecommunications services in its territory provide portability (for those services provided for in its domestic law), in a timely manner, and on reasonable and non-discriminatory terms and conditions.
Article 11.8. Damaged, Stolen or Lost Mobile Terminal Equipment
1. Each Party shall establish procedures to exchange and block on its networks the IMEI (International Mobile Equipment Identity) or similar codes of mobile terminal equipment reported in the territory of another Party as stolen, misplaced or lost, or to implement mechanisms to inhibit or prevent the use of cloned IMEI codes.
2. The procedures referred to in paragraph 1 shall include the use of such databases as the Parties may agree for this purpose.
Article 11.9. Internet Traffic
The Parties shall endeavour to:
(a) promote the interconnection within the territory of each Party of all Internet Service Providers (ISPs) through new Internet Exchange Points (IEPs), as well as promote interconnection between the IEPs of the Parties;
(b) adopt or maintain measures to ensure that public (8) works projects include mechanisms to facilitate the deployment of fibre optic or other telecommunications networks;
(c) encouraging the deployment of telecommunication networks that connect users to the main centres of Internet content generation worldwide, and
(d) adopt policies that encourage the installation of Internet content generation centres and distribution networks in their respective territories.
Article 11.10. Universal Service
Each Party has the right to define the type of universal service obligations it wishes to adopt or maintain and shall administer such obligations in a transparent, non-discriminatory and competitively neutral manner, and shall ensure that universal service obligations are no more burdensome than necessary for the type of universal service that has been defined.
Article 11.11. Net Neutrality
Parties shall, in accordance with their domestic law, adopt or maintain measures to ensure that public telecommunications services:
(a) do not arbitrarily discriminate by blocking, interfering with, obstructing, or restricting the right of any Internet user to use, send, receive or offer any lawful content, applications, or services over the Internet. Notwithstanding the foregoing, public telecommunications service providers may take such measures as are necessary to ensure the operation of their networks, provided that they are not undertaken in a manner that constitutes arbitrary discrimination or anti-competitive conduct; and
(b) do not limit a user's right to use any type of device to connect to the network, as long as it is legal and does not harm the network or the quality of service.
Article 11.12. Competitive Safeguards
1.Each Party shall maintain appropriate measures with the objective of preventing suppliers, individually or jointly, from engaging or continuing to engage in anti-competitive practices.
2. The anti-competitive practices referred to in paragraph 1 include, in particular:
(a) employ anti-competitive cross-subsidies;
(b) using information obtained from competitors with anti-competitive results, and
(c) failure to make available in a timely manner to other suppliers of public telecommunications services, technical information on essential facilities and commercially relevant information that they need to supply public telecommunications services.
Article 11.13. Treatment of Significant Suppliers
Each Party shall ensure that major suppliers in its territory accord to public telecommunications service suppliers of the other Party treatment no less favourable than that accorded by such major suppliers, in like circumstances, to their subsidiaries, their affiliates or non-affiliated service suppliers, with respect to:
(a) the availability, supply, rates or quality of similar public telecommunications services, and
(b) the availability of technical interfaces necessary for interconnection.
Article 11.14. Disaggregation of Network Elements
1, Each Party shall provide its telecommunications regulatory body the authority to require dominant suppliers in its territory to provide to suppliers of public telecommunications services of the other Party access to network elements on an unbundled basis and on terms, conditions, and cost-oriented rates that are reasonable, non- discriminatory, and transparent.
2. Each Party may determine the network elements required to be made available in its territory and the providers that may obtain such elements, in accordance with its legal system.
Article 11.15. Supply and Pricing of Leased Circuits
1. Each Party shall ensure that dominant suppliers in its territory supply leased circuits to enterprises of the other Party on terms, conditions and rates that are reasonable and non- discriminatory.
2. To comply with paragraph 1, each Party shall give its telecommunications regulatory body the authority to require dominant suppliers in its territory to offer leased circuits to the other Party's companies at capacity-based, cost-oriented prices.
Article 11.16. Co-location
1. Each Party shall ensure that dominant suppliers in its territory provide to suppliers of public telecommunications services of the other Party the physical co-location of equipment necessary to interconnect with or access unbundled network elements on terms, conditions, and cost-oriented rates that are reasonable, non-discriminatory, and based on generally available supply.
2. Where physical co-location is not practicable for technical reasons or due to space limitations, each Party shall ensure that major suppliers in its territory provide an alternative solution, such as facilitating virtual co-location, on terms, conditions and cost- oriented fees that are reasonable, non-discriminatory and based on a generally available offer.
3. Each Party may determine, in accordance with its legal system, the facilities subject to paragraphs 1 and 2.
Article 11.17. Access to Poles, Ducts, Pipelines and Rights of Way
Each Party shall maintain appropriate measures for dominant suppliers in its territory to provide access to its poles, ducts, conduits, and rights-of-way owned or controlled by such dominant suppliers to suppliers of public telecommunications services of the other Party on terms, conditions, and rates that are reasonable and non- discriminatory.
Article 11.18. Independent Regulatory Bodies
1. Each Party shall ensure that its regulatory body for telecommunications is independent of, separate from, and not accountable to any supplier of public telecommunications services. To this end, each Party shall ensure that its telecommunications regulatory body has no financial interest in, and no operational functions with, any supplier of public telecommunications services.
2. Each Party shall ensure that the decisions and procedures of its telecommunications regulatory body are impartial with respect to all market participants. To this end, each Party shall ensure that any financial interest it has in a supplier of public telecommunications services does not influence the decisions and procedures of its telecommunications regulatory body.
3. Neither Party shall accord to a supplier of public telecommunications services treatment more favourable than that accorded to a like supplier of the other Party, on the ground that the supplier receiving the more favourable treatment is publicly owned, in whole or in part.
Article 11.19. Mutual and Technical Cooperation
The regulatory agencies of the Parties shall cooperate on:
(a) the exchange of experience and information on telecommunication policy, regulation and standards;
(b) the promotion of training spaces by the competent telecommunication authorities for the development of specialized skills;
(c) coordination and the search for common positions, as far as possible, in the various international organizations in which they participate, and
(d) the exchange of information on strategies to enable access to public telecommunications services in rural areas and priority focus areas established by each Party.
Article 11.20. Qualifying Titles
1. Where a Party requires a qualification from a supplier of public telecommunications services, it shall make the qualification publicly available:
(a) the criteria and procedures applicable to the granting of the same;
(b) the time normally required to make a decision on such a request; and
(c) the terms and conditions of any qualification it has issued.
2. Each Party shall ensure that, upon request, an applicant is provided with the reasons for the denial of a qualification.
Article 11.21. Allocation, Allocation and Use of Scarce Resources
1. Each Party shall administer its procedures for the allocation, assignment and use of scarce telecommunications resources, including frequencies, numbers and rights of way, in an objective, timely, transparent and non-discriminatory manner, except for those related to governmental uses.
2. Each Party shall make available to the public the current status of allocated frequency bands, but shall not be obliged to provide the detailed identification of frequencies allocated for specific governmental uses.
3. Measures of the other Party relating to spectrum allocation and assignment and frequency management do not per se constitute measures inconsistent with Article 9.4 (Market Access), which applies to trade in services as provided in Article 9.2 (Scope of Application). Accordingly, each Party retains the right to establish and apply its spectrum and frequency management policies, which may have the effect of limiting the number of suppliers of public telecommunications services, provided that this is done in a manner consistent with this Agreement. Each Party also retains the right to allocate and assign frequency bands taking into account present and future needs and spectrum availability.
4. When assigning spectrum for public non-governmental telecommmunications services, each Party shall endeavour to rely on an open and transparent public process that considers the public interest. Each Party shall generally seek to rely on market-based approaches in assigning spectrum for terrestrial non-governmental public telecommunications services.
Article 11.22. Transparency
Each Party shall ensure that:
(a) the telecommunications regulatory body's actions, including considerations for such actions, be promptly published or made publicly available;
(b) interested persons are afforded, to the extent practicable, by public notice and with adequate advance notice, an opportunity to comment on any proposed action by the telecommunications regulatory body;
(c) user fees are made available to the public;
(d) measures relating to public telecommunications networks and services, including those relating to:
(i) rates and other terms and conditions of service;
(ii) specifications of the technical interfaces;
(iii) the conditions for the comnection of terminal equipment or any other equipment to the public telecommunications network;
(iv) notification or qualification requirements, if any;
(v) standardization or norms affecting access and use, and
(vi) the procedures relating to the settlement of telecommunications disputes referred to in Article 11.27.
Article 11.23. Quality of Service
1. Each Party shall establish measures to regulate, monitor and oversee the quality of public telecommunications services with the indicators, parameters and procedures established for this purpose by its respective telecommunications regulatory body.
2. Each Party shall ensure that:
(a) suppliers of public telecommunications services in its territory, or
(b) its telecommunications regulatory body, publish indicators of the quality of service provided to users of public telecommunications services.
3. Each Party shall provide, upon request of another Party, the methodology used for the calculation or measurement of the quality of service indicators, as well as the targets that have been defined for their compliance, in accordance with its legislation.
Article 11.24. International Roaming
1, The Parties undertake to work together, within a period of two (2) years from the entry into force of this Agreement, through the telecommunications authorities and the competent fiscal and tax authorities, for the purpose of:
(a) Establish a working group for the implementation of international roaming at local rates, considering implementation alternatives and their social and economic impact;
(b) develop a methodology and a roadmap for implementing international roaming service (roaming) at local rates between the two Parties, based on the results of the working table, approved by the Parties;
(c) develop a joint regulation on reasonable and non-abusive use of international roaming service, and
(d) harmonize the value added tax treatment applicable to international roaming services.
2. The implementation of the international roaming service at local rates between the Parties will require the subscription of a Complementary Protocol to this Agreement, based on the results of the working table and the determination of the methodology and roadmap to be approved by the Parties.
Article 11.25. Flexibility In the Choice of Technologies
1. No Party may prevent suppliers of public telecommunications services from having the flexibility to choose the technologies they wish to use for the supply of their services, subject to requirements necessary to satisfy legitimate public policy interests, including the protection of the technical integrity of public telecommunications networks and services.
2. Where a Party funds the development of advanced networks, it may condition its funding on the use of technologies that meet its specific public policy interests.
Article 11.26. Protection of Users of Public Telecommunication Services
The Parties shall guarantee the following rights to users of public telecommunications services:
(a) to obtain the supply of public telecommunications services, in accordance with the quality parameters contracted or established by the competent authority; and
(b) in the case of persons with disabilities, to obtain information on the rights they enjoy. Parties shall use the means available to them for this purpose.
Article 11.27. Settlement of Telecommunication Disputes
Each Party shall ensure that:
(a) the enterprises of the other Party, depending on the nature of the dispute, may have recourse to the competent administrative or judicial body of the Party in which the service is provided, to resolve disputes relating to domestic measures concerning the matters set out in Articles 11.3 through 11.26;
(b) suppliers of public telecommunications services of the other Party that have requested interconnection with a dominant supplier in the territory of the Party may apply to the competent administrative or judicial body of the Party in which the interconnection is made, within a specific reasonable and public time period following the supplier's request for interconnection, for intervention on issues relating to the terms, conditions and rates for interconnection with such dominant supplier.
(c) any undertaking that considers itself adversely affected or considers that its interests have been affected by a determination or decision of the telecommunications regulatory body may seek administrative remedies as appropriate, in accordance with the laws of each Party. No Party shall allow such a request to be a basis for non-compliance with the determination or decision of the telecommunications regulatory body, unless a competent authority suspends such determination or decision. A Party may limit the circumstances in which reconsideration is available, consistent with its legal system;
(d) any undertaking which considers itself aggrieved or considers that its interests have been affected by a ruling or decision of the telecommunications regulatory body may obtain a judicial review of such ruling or decision by an independent judicial authority. An application for judicial review shall not constitute a basis for non-compliance with such ruling or decision, unless it is suspended by the competent judicial body.
Article 11.28. Relationship to other Chapters
In the event of any inconsistency between this Chapter and another Chapter of this Agreement, this Chapter shall prevail to the extent of the inconsistency.
Chapter 12. PUBLIC PROCUREMENT
Article 12.1. Definitions
For purposes of this Chapter:
notice of intended procurement means a notice published by the procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;
notice of planned procurement means a notice published by a procuring entity regarding its future procurement plans;
commercial goods or services means goods or services of a kind generally sold or offered for sale in the commercial marketplace, and generally purchased by nongovernmental purchasers, and normally for nongovernmental purposes;
special compensatory condition means any condition or commitment that promotes local development or improves a Party's balance of payments accounts, such as the use of domestic content, technology licensing, investment, compensatory trade and similar measures or requirements;
conditions for participation means any registration, qualification or other prerequisites for participation in a procurement;
direct procurement means a method of procurement in which the procuring entity contacts a supplier or suppliers of its choice;
contracting entity means an entity covered by Appendices 1 to 3 of Annex 12.1;
written or in writing means any expression in words or numbers that can be read, reproduced and subsequently communicated, including information transmitted and stored electronically;
technical specification means a procurement requirement that:
(a) establishes the characteristics of:
(i) the goods to be procured, such as quality, performance, safety and dimensions or processes and production methods;
(ii) the services to be contracted, such as quality, performance and safety, or their processes and methods of supply; and for the case of construction services, includes construction methods and designs, or
(b) refers to terminology, symbols, packaging, marking or labelling requirements applicable to a good or service;
competitive bidding means a method of procurement in which all interested suppliers may submit a bid;
selective tendering means a method of procurement in which only qualified or registered suppliers are invited by the procuring entity to submit a tender;
multiple-use lists means a list of suppliers that the procuring entity has determined to be eligible for that list, and that the procuring entity intends to use more than once;
measure means any law, regulation, method, administrative guidance or practice, or any action by a procuring entity in connection with a covered procurement;
standard means a document approved by a recognized institution, which establishes, for common and repeated use, rules, guidelines or characteristics applicable to goods or services, or related processes and production methods, compliance with which is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements applicable to a good, service, process or production method;
person means a natural person or a legal person;
natural person of the other Party means a natural person who is a national of the other Party or who, under the law of the other Party, has the right of permanent residence in that other Party;
legal entity means any legal entity duly constituted or otherwise organized under the applicable law;
legal person of the other Party means a legal person that is incorporated or otherwise organized under the laws of the other Party and that, in the case of the supply of a service, has substantive business operations in the territory of that Party;
supplier means a person or group of persons who supplies or could supply goods or services;
qualified supplier means a supplier that is recognized by a procuring entity as meeting the requirements for participation;
construction service means a service the purpose of which is the performance, by whatever means, of a civil engineering or construction work on the basis of Division 51 of the United Nations Provisional Central Product Classification (hereinafter referred to as "CPC");
services include construction services, unless otherwise noted;
electronic auction means an iterative process involving the use of electronic means for the submission by suppliers of either new prices or new values for quantifiable non-price