5. Decisions taken by such competent bodies shall be enforced in accordance with the applicable legal procedures. Pending the outcome of such legal proceedings, the decision of the regulatory authority shall stand, unless the competent body or the applicable national legislation determines otherwise.
Article 13.4. Authorization to Provide Publicly Available Telecommunication Services (4)
1. The supply of publicly available telecommunications services shall be authorized in accordance with the procedures established by the national legislation of the authorizing Party.
2. A specific authorization may be required to deal with number and frequency assignment matters, in accordance with the national legislation of the authorizing Party. The terms and conditions for such specific authorizations shall be made publicly available.
3. Where a Party requires an authorization from a supplier of publicly available telecommunications services, the Party shall make it available to the public:
(a) the applicable criteria, terms and conditions of authorization; and
(b) the period of time, which in accordance with its national legislation is required to take a decision on the application for an authorization.
4. In accordance with applicable national legislation, each Party shall ensure that, upon request, an applicant is provided with the reasons for the denial of an authorization.
5. The applicant for an authorization may appeal to the regulatory authority or other competent body, in accordance with the respective national legislation, in the event that an authorization is refused.
Article 13.5. Competitive Safeguards on Major Suppliers
The Parties shall introduce or maintain appropriate measures in order to prevent those suppliers authorized to provide services from publicly available telecommunications that, individually or in the aggregate, are a major supplier, employ or continue to employ anticompetitive practices. These anticompetitive practices could include, in particular:
(a) anti-competitive cross-subsidies;
(b) using information obtained from competitors with anticompetitive results; and
(c) failure to make available in a timely manner to other providers of publicly available telecommunications services, technical information on essential facilities and commercially relevant information necessary for them to supply these services (5).
Article 13.6. Interconnection (6)
1. Any supplier authorized to supply publicly available telecommunications services shall have the right to negotiate interconnection with other suppliers of publicly available telecommunications networks and services. In principle, interconnection should be agreed on the basis of commercial negotiation between the suppliers of publicly available telecommunications services involved, without prejudice to the powers of the regulatory authority to intervene in accordance with the respective national legislation.
2. Suppliers of publicly available telecommunications services that acquire information from other suppliers of publicly available telecommunications services during the process of negotiating interconnection agreements shall be obliged to use such information only for the purpose for which it was provided and shall at all times respect the confidentiality of the information transmitted or stored.
3. Suppliers of publicly available telecommunications services shall register with the regulatory authority all interconnection agreements they have negotiated, as and when required by national legislation.
4. Interconnection with major providers of publicly available telecommunication services will be ensured at the points of the public telecommunications network where technically feasible and in accordance with the respective national legislation. Such interconnection shall be facilitated:
(a) under non-discriminatory terms, conditions (including technical standards and specifications) and tariffs, and shall be provided in a timely manner, under terms, conditions (including technical standards and specifications) and cost-based tariffs (7) that are transparent, reasonable, take into account economic feasibility and are sufficiently unbundled so that the provider of publicly available telecommunications services does not have to pay for components or facilities of the public telecommunications network that it does not require for the supply of telecommunications services;
(b) of a quality not less than that provided for its own similar telecommunications services or for similar telecommunications services of non-affiliated suppliers of publicly available telecommunications services or for its affiliates, subsidiaries or other affiliated companies; and
(c) in accordance with the national legislation of each Party, upon request at points in addition to the public telecommunications network termination points offered to the majority of users, subject to charges reflecting the cost of construction of the necessary additional facilities.
5. The procedures applicable to interconnection with major suppliers of telecommunications services shall be made available to the public in accordance with applicable national legislation.
6. Major suppliers of telecommunications services shall make their existing interconnection agreements or reference interconnection offers, or both, available to the public in accordance with the respective national legislation.
Article 13.7. Scarce Resources
1. Procedures for the allocation and use of scarce resources, including frequencies, numbers and rights of way, shall be administered in an objective, timely, transparent and non-discriminatory manner, in accordance with national legislation.
2. The current status of the assigned frequency bands will be made available to the public, but it is not necessary to identify in detail the frequencies assigned to specific official uses.
Article 13.8. Universal Service
1. Each Party, in accordance with its national legislation, has the right to define the type of universal service obligations it wishes to maintain or establish.
2. Such obligations shall not be considered anti-competitive per se, provided that they are administered in a transparent, objective and non-discriminatory manner. Furthermore, the administration of such obligations shall be competitively neutral and no more burdensome than necessary for the type of universal service defined by the Party.
3. Providers of publicly available telecommunications services may be eligible to ensure universal service. The designation shall be made through efficient, transparent and non-discriminatory mechanisms, in accordance with the respective national legislation.
Article 13.9. Transparency
In addition to Article 13.4.3 and in accordance with its domestic law, each Party shall ensure that measures relating to publicly available telecommunications services are made available to the public, including measures relating to:
(a) the bodies responsible for the development, modification and adoption of standardization measures affecting access and use; and
(b) conditions for the connection of terminal or other equipment to public telecommunications networks.
Article 13.10. Confidentiality of Information
Each Party shall, in accordance with its domestic law, ensure the confidentiality of telecommunications and associated traffic data, including their content, carried over a public telecommunications network and publicly available telecommunications services, subject to the requirement that the measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or disguised discrimination in trade in telecommunications services.
Article 13.11. Supplier Disputes
In the event of a dispute arising between providers of public telecommunications networks or publicly available telecommunications services in relation to the rights and obligations arising under Articles 13.5 and 13.6, the national regulatory authority concerned or another national regulatory authority shall, in the event of a dispute between providers of public telecommunications networks or publicly available telecommunications services in relation to the rights and obligations arising under Articles 13.5 and 13.6, provide the national regulatory authority concerned or other competent authority shall, at the request of any supplier and in accordance with the procedures established under national law, issue a binding decision to resolve the dispute in the shortest possible time.
Chapter XIV. Temporary Entry of Business Persons
Article 14.1. Definitions
For the purposes of this Chapter, the following definitions shall apply:
business activities: those legitimate activities of a commercial nature created and operated for the purpose of obtaining profits in the marketplace. It does not include the possibility of obtaining employment, nor salary or remuneration from a labor source in the territory of a Party;
labor certification: the procedure carried out by the competent administrative authority to determine whether a foreign individual from one Party who intends to temporarily enter the territory of the other Party displaces national labor in the same branch of work or significantly impairs labor conditions in the same branch of work;
temporary entry: the entry, sojourn and stay of a business person of one Party into the territory of the other Party, without the intention of establishing permanent residence, in accordance with the national legislation of the latter;
immigration measure: any measure on immigration matters, whether in the form of a law, regulation, rule, procedure, decision or administrative provision or requirement;
business person: a national of a Party engaged in trade in goods or services, or in investment activities; and
recurrent practice: a practice carried out by the immigration authorities of a Party on a repetitive basis, during a representative period prior to and immediately following the implementation of the practice.
Article 14.2. General Principles
The provisions of this Chapter reflect the preferential commercial relationship between the Parties, the convenience of facilitating the temporary entry of business persons in accordance with their national laws, regulations and provisions, and the need to establish transparent criteria and procedures to that effect. They also reflect the need to ensure border security, to protect the labor of their nationals and permanent employment in their respective territories.
Article 14.3. Scope of Application
1. This Chapter applies to measures affecting the temporary entry of nationals of a Party into the territory of the other Party for business purposes.
2. This Chapter does not apply to measures affecting nationals seeking access to the labor market of the Parties, nor to measures relating to nationality, citizenship or residence, or employment on a permanent basis.
3. This Chapter shall not prevent a Party from applying measures to regulate the entry of nationals of the other Party into its territory, including those measures necessary to protect the integrity and ensure the orderly movement of persons across its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits received from the other Party under the terms of the categories of business persons in Annex 14.The mere fact of requiring a visa for persons shall not be deemed to nullify or impair the provisions set out in Chapters XI (Investment) and XII (Cross-Border Trade in Services) pursuant to this Agreement.
Article 14.4. Temporary Entry Authorization
1. In accordance with the provisions of this Chapter, including those contained in Annex 14.3, each Party shall authorize the temporary entry of business persons who comply with the immigration measures applicable to temporary entry and with other applicable measures, as well as those relating to public health and safety and national security.
2. A Party may deny the issuance of a migration document authorizing activity or employment to a business person, in accordance with its national legislation, when his temporary entry would adversely affect:
(a) the settlement of any labor dispute at the place where she is or will be employed; or
(b) employment of any person involved in such a conflict.
3. When a Party denies the issuance of a migration document authorizing activity or employment, in accordance with paragraph 2, that Party:
(a) inform the business person concerned in writing of the reasons for the refusal; and
(b) at the request of the Party whose national is refused entry, shall notify the Party in writing and within a reasonable period of time, the reasons for the refusal.
4. Each Party shall limit the amount of fees for processing requests for temporary entry to the approximate cost of services rendered.
5. The temporary entry of a business person does not authorize the practice of a profession, nor does it replace the requirements for the practice of a profession or activity, in accordance with the specific national legislation in force in the territory of the Party authorizing the temporary entry.
Article 14.5. Availability of Information
1. In addition to the provisions of Article 18.3 (Publication), each Party shall:
(a) provide the other Party with such information as will enable it to become acquainted with the measures relating to this Chapter; and
(b) not later than one year after the date of entry into force of this Agreement, prepare, publish and make publicly available, in physical or electronic form, explanatory material in a consolidated document relating to the requirements for temporary entry in accordance with this Chapter.
2. Each Party shall collect, maintain and make available to the other Party, upon request and in accordance with its national legislation, information regarding the granting of temporary entry authorizations, in accordance with this Chapter, to persons of the other Party to whom immigration documentation has been issued. This collection shall include information for each authorized category referred to in Annex 14.3.
Article 14.6. Committee on Temporary Entry of Business Persons
1. The Parties establish the Committee on Temporary Entry of Business Persons. The Committee shall be composed of representatives of each of the Parties, in accordance with the provisions of Annex 14.6, and shall assist the Administrative Commission in the performance of its functions.
2. The Committee shall establish, if it deems it appropriate, its rules of procedure.
3. The meetings of the Committee shall be held at the request of the Administrative Commission, the Free Trade Agreement Coordinators or at the request of any of the Parties to deal with matters of interest to them.
4. The Committee's resolutions shall be adopted by consensus and reported to the appropriate bodies.
5. The Committee shall initially meet no later than 6 months after the date of entry into force of this Agreement. The meetings of the Committee may be held in person or through any technological means. When the meetings are face-to-face, they shall be held alternately in the territory of each Party, and it shall be the responsibility of the host Party to organize the meeting.
6. Notwithstanding the provisions of paragraph 1, the Committee may meet to discuss bilateral matters of interest to one or more Central American and Mexican Parties, provided that the other Parties are notified sufficiently in advance so that, if appropriate, they may participate in the meeting. Agreements arising from the meeting shall be adopted by consensus among the Parties involved in the bilateral matter and shall have effect only with respect to them.
7. The functions of the Committee shall include:
(a) monitoring the implementation and administration of this Chapter;
(b) to make appropriate recommendations to the Administrative Commission on matters within its competence;
(c) consider the development of measures to further facilitate the temporary entry of business persons, in accordance with the provisions of this Chapter;
(d) examine the establishment of procedures for the exchange of information on measures affecting the temporary entry of business persons in accordance with this Chapter;
(e) to consider proposed amendments or additions to this Chapter; and
(f) any other matter instructed by the Administrative Commission.
Article 14.7. Settlement of Disputes
1. The Parties may not request a meeting of the Administrative Commission pursuant to Article 17.7 (Intervention by the Administrative Commission - Good Offices, Conciliation and Mediation), with respect to a denial of temporary entry authorization pursuant to this Chapter, unless:
(a) the matter concerns a recurring practice; and
(b) the business person concerned has exhausted, in accordance with applicable national laws, regulations and provisions, the administrative remedies available to it with respect to that particular matter.
2. The remedies referred to in paragraph 1(b) shall be deemed exhausted when the competent authority has not issued a final decision within 12 months from the initiation of the administrative procedure and the decision has not been delayed for reasons attributable to the business person concerned.
Chapter XV. Electronic Commerce
Article 15.1. Definitions
For the purposes of this Chapter, the following definitions shall apply:
carrier medium: any physical device or object capable of storing 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 optical media, floppy disks and magnetic tapes;
electronic means: the use of computerized processing;
digital products: computer programs, text, video, images, sound recordings and other products that are digitally encoded (1); and
electronic transmission or electronically transmitted: the transfer of digital products using any electromagnetic or photonic means.
Article 15.2. General Provisions
1. The Parties recognize the economic growth and opportunity that electronic commerce generates, the importance of avoiding obstacles to its use and development, and the applicability of WTO provisions 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 that such taxes are imposed in a manner consistent with this Agreement.
Article 15.3. Electronic Provision of Services
For greater certainty, the Parties affirm that measures affecting the supply of a service using electronic means are within the scope of the obligations contained in the relevant provisions of Chapters XI (Investment) and XII (Cross-Border Trade in Services), subject to any exceptions or non-conforming measures set out in this Agreement that are applicable to such obligations.
Article 15.4. Digital Products
1. No Party shall impose customs duties in connection with the import or export of digital products by electronic transmission.
2. For purposes of determining the applicable customs duties, each Party shall determine the customs value of an imported carrier medium incorporating a digital good based solely on the cost or value of the carrier medium, regardless of the cost or value of the digital good stored on the carrier medium.
3. No Party shall accord less favorable treatment to digital products transmitted electronically:
(a) that are created, produced, published, published, stored, transmitted, transmitted, contracted, commissioned, or made available for the first time on commercial terms in the territory of the other Party, than it grants to the same or similar electronically transmitted digital products that are created, produced, published, stored, transmitted, transmitted, contracted, commissioned, or made available for the first time on commercial terms in its territory (2); or
(b) | whose author, performer, producer, manager, or distributor is a person of the other Party than the treatment it accords to the same or similar electronically transmitted digital products whose author, performer, producer, manager, or distributor is a person of its territory. (3)
4. No Party shall accord less favorable treatment to digital products transmitted electronically:
(a) that are created, produced, published, published, stored, transmitted, contracted, commissioned, or otherwise made available for the first time on commercial terms in the territory of the other Party, than that granted to the same or similar electronically transmitted digital products that are created, produced, published, stored, transmitted, contracted, commissioned, or otherwise made available for the first time on commercial terms in the territory of a non-Party; or
(b) whose author, performer, producer, manager, or distributor is a person of the other Party than that which it grants to the same or similar electronically transmitted digital products whose author, performer, producer, manager, or distributor is a person of a non-Party.
5. Paragraphs 3 and 4 do not apply to any non-conforming measure referred to in Articles 11.9 (Reservations and Exceptions) or 12.7 (Reservations and Exceptions).
Article 15.5. Cooperation
The Parties recognize the importance of implementing cooperation programs that promote electronic commerce, which will focus mainly on the following activities:
(a) working together to overcome the obstacles faced by small and medium-sized companies when using e-commerce;
(b) share information and experiences on e-commerce laws, regulations and programs, including those related to data privacy, consumer confidence in e-commerce, cybersecurity, e-signatures, intellectual property rights and e-government;
(c) make their best efforts to work together to establish mechanisms and requirements for digital certificates issued by certification service providers authorized or accredited by one Party to be accepted in the other Party, in accordance with its national legislation;
(d) working to maintain cross-border information flows as an essential element in promoting a dynamic environment for electronic commerce; and
(e) actively participate in hemispheric and multilateral forums to promote the development of electronic commerce.
Article 15.6. Transparency
Each Party shall publish or otherwise make publicly available its laws, regulations and other measures of general application that relate to electronic commerce.
Chapter XVI. Intellectual Property
Section A. General Provisions and Basic Principles
Article 16.1. Definitions
For the purposes of this Chapter, the following definitions shall apply:
Lisbon Agreement: the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (1979);
Rome Convention: the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961);
Berne Convention: the Berne Convention for the Protection of Literary and Artistic Works (1971);
Brussels Convention: the Convention Relating to the Distribution of Programme- carrying Signals Transmitted by Satellite (1974);
Geneva Convention: the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms (1971);
Paris Convention: the Paris Convention for the Protection of Industrial Property (1967);
Intellectual property rights: includes all categories of intellectual property that are subject to protection under this Chapter, under the terms indicated therein;
Trademark: any sign or combination of signs that allow distinguishing the goods or services of one person from those of another, since they are considered sufficiently distinctive or capable of identifying the goods or services to which they are applied, as opposed to those of the same kind or class. Trademarks shall include collective marks;
nationals of the other Party: with respect to the relevant intellectual property right, persons who would meet the eligibility criteria for protection under the TRIPS Agreement; and
encrypted program-carrying satellite signal: one that is transmitted in a form whereby the auditory or visual characteristics, or both, are modified or altered so as to prevent reception of the program carried on that signal by persons lacking equipment that is designed to eliminate the effects of such modification or alteration.
Article 16.2. Protection of Intellectual Property Rights
1. Each Party shall grant in its territory to nationals of the other Party adequate and effective protection and enforcement of intellectual property rights and shall ensure that measures designed to enforce such rights do not, in turn, become barriers to legitimate trade.
2. Each Party may grant in its national legislation, a broader protection to intellectual property rights than that required in this Chapter, provided that such protection does not contravene the provisions of this Chapter.
3. The Parties shall be free to establish the appropriate method for implementing the provisions of this Chapter, within the framework of their own legal system and practice.
Article 16.3. Provisions on the Subject Matter
In order to provide adequate and effective protection and enforcement of intellectual property rights, the Parties incorporate their rights and obligations set forth in the following international agreements, without prejudice to the provisions of this Chapter:
(a) TRIPS Agreement;
(b) Lisbon Agreement; (1)
(c) Rome Convention;
(d) Berne Convention;