(e) policies and practices: advancing care policies and programs that include a gender and shared social responsibility perspective;
(f) statistics: using gender-focused statistical indicators, methods and procedures in the field of labour; and
(g) violence: preventing workplace gender-based violence and harassment.
5. The Parties may establish cooperative arrangements with the ILO and other competent international and regional organizations to draw on their expertise and resources to achieve the objectives of this Chapter.
Article 13.15: Labour Consultations
1. The Parties shall endeavour to come to an understanding on the interpretation and application of this Chapter.
2. A Party may request consultations (requesting Party) with the other Party regarding any matter under this Chapter by delivering a written request to the National Administrative Office of the other Party. The Parties shall make every attempt, including through cooperation, consultations, and the exchange of information, to address a matter that might affect the operation of this Chapter.
3. Labour consultations shall be confidential and without prejudice to the rights of a Party in any other proceedings. The consulting Parties may decide to make the facts, timelines, and general subject-matter of the consultations publicly available.
4. If the Parties fail to resolve the matter, the requesting Party may request consultations under Article 13.16.
Article 13.16: Council Consultations
1. A Party may request (requesting Party) that the Council be convened to consider the matter in question by submitting a written request to the other Party through its National Administrative Office. The requesting Party shall notify the other Party through its National Administrative Office. The Council shall convene no later than 30 days after the date of receipt of the request, unless the Parties decide otherwise, and shall seek to resolve the matter, including, if appropriate, by consulting independent experts and resorting to procedures such as good offices, conciliation or mediation.
2. If the Parties decide to consult independent experts, the Parties may decide to seek technical advice or assistance from those experts, including to draft a report and recommendations on the matter.
3. If the Parties resolve the matter, they shall document any outcome, including, if appropriate, specific steps and timelines that are decided by the Parties. The Parties shall make the outcome available to the public unless they decide otherwise.
4. In the process of resolving the matter pursuant to paragraph 3, the Parties shall consider all available options, and may jointly decide on a course of action they consider appropriate, including:
(a) the development and implementation of an action plan in a form that they find satisfactory, which may include specific and verifiable steps and appropriate timeframes; and
(b) appropriate incentives, such as cooperative programs and capacity building, to encourage or assist the Parties to identify and address labour matters.
5. If the Parties fail to resolve the matter within 75 days after the date of receipt of a request under paragraph 1, the requesting Party may request the establishment of a panel under Article 27.7 (Dispute Settlement – Request for the Establishment of a Panel).
6. A Party shall not have recourse to dispute settlement under Chapter 27 (Dispute Settlement) for a matter arising under this Chapter without first seeking to resolve the matter in accordance with Articles 13.15 and 13.16.
7. Council consultations shall be confidential and without prejudice to the rights of a Party in other proceedings. The Parties may make public the circumstances, timelines, and general subject of the consultations.
Chapter 14. TRANSPARENCY, ANTI-CORRUPTION AND RESPONSIBLE BUSINESS CONDUCT
Section A: Definitions
Article 14.1: Definitions
For the purposes of this Chapter:
act or refrain from acting in relation to the performance of official duties includes any use of the public official’s position, whether or not within the official’s authorised competence;
administrative ruling of general application means an administrative ruling or interpretation that applies to all persons and factual situations that fall generally within the ambit of that administrative ruling or interpretation 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 the other Party in a specific case; or
(b) a ruling that adjudicates with respect to a particular act or practice.
foreign public official means any person holding a legislative, executive, administrative or judicial office of a foreign country, at any level of government, whether appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that
person’s seniority; and any person exercising a public function for a foreign country, at any level of government, including for a public agency or public enterprise;
official of a public international organization means an international civil servant or any person who is authorised by a public international organization to act on its behalf; and
public official means:
(a) any person holding a legislative, executive, administrative or judicial office of a Party, whether appointed or elected, permanent or temporary, paid or unpaid, and irrespective of that person’s seniority;
(b) any other person who performs a public function for a Party, including for a public agency or public enterprise, or provides a public service, as
defined under the Party’s law and as applied in the pertinent area of that Party’s law; or
(c) any other person defined as a public official under a Party’s law.
Section B: Transparency
Article 14.2: Publication
1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application regarding any matter covered by this Agreement are promptly published or made available in a manner that enables interested persons and the other Party to become acquainted with them.
2. Each Party shall, to the extent possible:
(a) publish in advance any measure mentioned in paragraph 1 that it proposes to adopt; and
(b) provide a reasonable opportunity for interested persons and the other Party to comment on the proposed measure.
3. Unless this Agreement provides otherwise, to the extent possible, when adopting or amending the laws, regulations or procedures referred to in paragraph 1, each Party shall endeavour to provide a reasonable period between the date when those laws, regulations or procedures, proposed or final, in accordance with its legal system, are made publicly available and the date when they enter into force.
4. With respect to a proposed regulation of general application of a Party’s central level of government respecting any matter covered by this Agreement that is likely to affect trade or investment between the Parties and that is published in accordance with paragraph 2(a), each Party shall:
(a) publish the proposed regulation in an official journal, or on an official website, preferably consolidated into a single online portal;
(b) endeavour to publish the proposed regulation:
(i) no less than 60 days in advance of the date on which comments are due; or
(ii) within another period in advance of the date on which comments are due that provides sufficient time for an interested person to evaluate the proposed regulation and formulate and submit comments;
(c) to the extent possible, include in the publication under subparagraph (a) an explanation of the purpose of, and rationale for, the proposed
regulation; and
(d) consider comments received during the comment period and endeavour to explain any significant modifications made to the proposed regulation, preferably in an official journal or on an official website.
5. Each Party shall, with respect to a regulation of general application adopted by its central level of government respecting any matter covered by this Agreement that is published in accordance with paragraph 1:
(a) promptly publish the regulation on one free, publicly accessible official website, or in an official journal of national circulation, preferably online and consolidated into a single portal; and
(b) if appropriate, include with the publication an explanation of the purpose of and rationale for the regulation.
Article 14.3: Notification and Provision of Information
1. A Party shall, to the extent possible, notify the other Party of any proposed or final measure that the Party considers may materially affect the operation of this Agreement, or that substantially affects the interests of the other Party pursuant to this Agreement.
2. On request of a Party, the other Party shall promptly provide information and respond to questions related to any proposed or final measure that the requesting Party considers may materially affect the operation of this Agreement, or substantially affect its interests under this Agreement, whether or not the requesting Party has been previously informed of that measure.
3. Any notification, request or information related to this Article shall be provided by the relevant Agreement Coordinator designated under Article 26.6 (Administrative and Institutional Provisions – Agreement Coordinators).
4. Any notification, answer or information provided pursuant to this Article shall be without prejudice as to whether the measure is consistent with this Agreement.
Article 14.4: Administrative Proceedings
1. With a view to administering in a consistent, impartial and reasonable manner its laws, regulations and administrative rulings of general application with respect to any matter covered by this Agreement, each Party shall ensure, in its administrative proceedings applying measures referred to in Article 14.2.1 to a particular person, good or service of the other Party in specific cases, that:
(a) if possible, a person of the other Party that is directly affected by a proceeding is provided with reasonable notice, in accordance with domestic procedures, of 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 issue in question;
(b) a person of the other Party that is directly affected by a proceeding is afforded a reasonable opportunity to present facts and arguments in
support of that person’s position prior to any final administrative action, if time, the nature of the proceeding and the public interest permit; and
(c) the procedures are in accordance with its law.
Article 14.5: 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, if warranted, correction of final administrative actions regarding matters covered by this Agreement. Each Party shall ensure that its tribunals are:
(a) impartial and independent of the office or authority entrusted with administrative enforcement; and
(b) that they do not have any substantial interest in the outcome of the matter.
2. Each Party shall ensure that, in any tribunals or procedures referred to in paragraph 1, the parties to the proceedings are entitled 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, if required by that Party’s law, on the record compiled by the relevant authority.
3. Each Party shall ensure, subject to appeal or further review as provided for in its law, that the decision referred to in paragraph 2(b) is implemented by, and governs the practice of, the office or authority with respect to the administrative action at issue.
Article 14.6: Cooperation on Promoting Increased Transparency
The Parties intend to cooperate in bilateral, regional and multilateral fora on ways to promote transparency in respect of international trade and investment.
Section C: Anti-Corruption
Article 14.7: Scope
1. This Section applies to measures to prevent and combat bribery and corruption with respect to any matter covered by this Agreement.
2. Each Party affirms its resolve to prevent and combat corruption and bribery in international trade and investment with the understanding that this affirmation contributes to efforts to substantially reduce corruption and bribery in all their forms.
3. The Parties recognize that the description of offences adopted or maintained in accordance with this Section, and of the applicable legal defences or legal principles controlling the lawfulness of conduct, is reserved to each Party’s law, and that those offences shall be prosecuted and punished in accordance with each Party’s law.
4. Each Party affirms its adherence to the United Nations Convention against Corruption, done at New York on 31 October 2003 (“UNCAC”) and the Inter-American Convention Against Corruption, done at Caracas on 29 March 1996 (“IACAC”). Canada affirms its adherence to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, done at Paris on 21 November 1997
(“OECD Convention”).
Article 14.8: Measures to Combat Corruption
1. Each Party shall adopt or maintain legislative and other measures as may be necessary to establish as criminal offences under its law, in matters that affect international trade or investment, if committed intentionally, by any person subject to its jurisdiction:
(a) the promise, offering or giving to a public official, directly or indirectly, of an undue advantage for the official or another person or entity, in order that the official act or refrain from acting in relation to the performance or exercise of their official duties;
(b) the solicitation or acceptance by a public official, directly or indirectly, of an undue advantage for the official or another person or entity, in order that the official act or refrain from acting in relation to the performance or exercise of their official duties;
(c) the promise, offering or giving to a foreign public official or an official of a public international organization, directly or indirectly, of an undue advantage for the official or another person or entity, in order that the official act or refrain from acting in relation to the performance of or the exercise of official duties, in order to obtain or retain business or other undue advantage in relation to the conduct of international business; and
(d) the aiding or abetting, or conspiracy in the commission of any of the offences described in subparagraphs (a) through (c).
2. Each Party shall adopt or maintain legislative and other measures as may be necessary to establish as a criminal offense under its law, in matters that affect international trade or investment, when committed intentionally, by a person subject to its jurisdiction, the embezzlement, misappropriation or another diversion by a public official for their benefit or for the benefit of another person or entity, of property, public or private funds or securities, or any other thing of value entrusted to the public official by virtue of their position.
3. Each Party shall make the commission of an offence described in paragraphs 1, 2 or 6 liable to sanctions that take into account the gravity of that offence.
4. Each Party shall adopt or maintain measures as may be necessary, consistent with its legal principles, to establish the liability of legal persons for offences described in paragraphs 1 and 6. In particular, each Party shall ensure that there are measures that provide for legal persons held liable for offences described in paragraphs 1 or 6 to be subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions.
5. Each Party shall disallow the tax deductibility of expenses that constitute bribes under subparagraphs 1(a), (b) and (c) and, if appropriate, other expenses incurred in furtherance of corrupt conduct.
6. In order to prevent corruption, each Party shall adopt or maintain measures as may be necessary, in accordance with its laws and regulations, regarding the maintenance of books and records, financial statement disclosures and accounting and auditing standards, to prohibit the following acts carried out for the purpose of committing any of the offences described in paragraph 1:
(a) the establishment of off-the-books accounts;
(b) the making of off-the-books or inadequately identified transactions;
(c) the recording of non-existent expenditure;
(d) the entry of liabilities with incorrect identification of their objects;
(e) the use of false documents; and
(f) the intentional destruction of bookkeeping documents earlier than foreseen by the law.
7. Each Party shall consider adopting or maintaining measures to protect, against any unjustified treatment, any person who, in good faith and on reasonable grounds, reports to the competent authorities any facts concerning offences described in paragraphs 1, 2 or 6.
Article 14.9: Cooperation in International Fora
The Parties recognize the importance of regional and multilateral initiatives to prevent and combat bribery and corruption in international trade and investment. The Parties commit to work together to advance efforts in regional and multilateral fora to prevent and combat bribery and corruption in international trade and investment, including by encouraging and supporting appropriate initiatives.
Article 14.10: Promoting Integrity among Public Officials
1. To fight corruption in matters that affect trade and investment, each Party shall promote, among other things, integrity, honesty and responsibility among its public officials. To this end, each Party shall, in accordance with the fundamental principles of its legal system, adopt or maintain:
(a) measures to provide adequate procedures for the selection and training of natural persons for public positions considered by the Party to be especially vulnerable to corruption;
(b) measures to promote transparency in the behaviour of public officials in the exercise of public functions;
(c) policies and procedures to identify and manage actual or potential conflicts of interest of public officials;
(d) measures that require senior public officials and other public officials as determined by the Party to make declarations to appropriate authorities regarding, among other things, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials; and
(e) measures to facilitate reporting by public officials of any facts concerning offences described in Article 14.8.1, Article 14.8.2 or Article 14.8.6 to appropriate authorities, if those facts come to their notice in the performance of their functions.
2. Each Party shall adopt or maintain codes or standards of conduct for the correct, honourable and proper performance of public functions, and measures providing for disciplinary or other measures, if warranted, against public officials who violate the codes or standards established or maintained in accordance with this paragraph.
3. Each Party shall, to the extent consistent with the fundamental principles of its legal system, consider establishing procedures through which a public official accused of an offence described under Article 14.8.1 may, if considered appropriate by that Party, be removed, suspended or reassigned by the appropriate authority, bearing in mind respect for the principle of the presumption of innocence.
4. Each Party shall, in accordance with the fundamental principles of its legal system and without prejudice to judicial independence, adopt or maintain measures to strengthen integrity, and to prevent opportunities for corruption, among members of the judiciary in matters that affect international trade or investment. These measures may include rules with respect to the conduct of members of the judiciary.
Article 14.11: Participation of Private Sector and Society
1. Each Party shall take appropriate measures, within its means and in accordance with fundamental principles of its legal system, to promote the active participation and safety of individuals and groups outside the public sector, such as enterprises, civil society, non-governmental organizations, women’s organizations and community-based organizations, in the prevention of and the fight against corruption in matters affecting international trade or investment, and to raise public awareness regarding the existence, causes and gravity of, and the threat posed by, corruption. To this end, a Party may, for example:
(a) undertake inclusive public information activities and inclusive public education programs that contribute to non-tolerance of corruption;
(b) adopt or maintain measures to encourage professional associations and other non-governmental organizations, if appropriate, in their efforts to encourage and assist enterprises, in particular small and medium-sized enterprises, in developing internal controls, ethics and compliance programs or measures for preventing and detecting bribery and corruption in international trade and investment;
(c) adopt or maintain measures to encourage company management to make statements in their annual reports or otherwise publicly disclose their internal controls, ethics and compliance programs or measures, including those that contribute to preventing and detecting bribery and corruption in international trade and investment; or
(d) adopt or maintain measures that respect, promote and protect the freedom to seek, receive, publish and disseminate information concerning corruption.
2. Each Party shall endeavour to encourage private enterprises, taking into account their structure and size, to:
(a) adopt or maintain sufficient internal auditing controls to assist in preventing and detecting offences described in Article 14.8.1 or
Article 14.8.6 in matters affecting international trade or investment; and
(b) ensure that their accounts and required financial statements are subject to appropriate auditing and certification procedures.
3. Each Party shall take appropriate measures to ensure that its relevant anti-corruption bodies are known to the public and shall provide access to those bodies, if appropriate, for the reporting, including anonymously, of any incident that may be considered to constitute an offence described in Article 14.8.1.
4. The Parties recognize the benefits of internal compliance programs in enterprises to combat corruption. In this regard, each Party shall encourage enterprises, taking into account their size, legal structure, capacities, resources, and the sectors in which they operate, to establish compliance programs for the purpose of preventing and detecting offences described in Article 14.8.1 or Article 14.8.6.
Article 14.12: Application and Enforcement of Anti-Corruption Laws
1. In accordance with the fundamental principles of its legal system, a Party shall not fail to enforce its laws or other measures adopted or maintained to comply with
Article 14.8 through a sustained or recurring course of action or inaction, after the date of entry into force of this Agreement, as an encouragement for trade and investment. The Parties recognize that individual cases or specific discretionary decisions related to the enforcement of anti-corruption laws are subject to each Party’s laws and legal procedures.
2. In accordance with the fundamental principles of its legal system, each Party retains the right for its law enforcement, prosecutorial and judicial authorities to exercise discretion with respect to the enforcement of its anti-corruption laws. Each Party retains the right to take decisions with regard to the allocation of its resources.
3. The Parties shall continue their cooperation under applicable international agreements and arrangements, in a manner consistent with their respective legal and administrative systems, to enhance the effectiveness of law enforcement actions to combat the offences described in Article 14.8.
Article 14.13: Relation to Other Agreements
This Agreement does not affect the rights and obligations of the Parties under UNCAC, the United Nations Convention against Transnational Organized Crime, done at New York on 15 November 2000, or the IACAC, and to the extent that they are a party, the OECD Convention.
Article 14.14: Dispute Settlement
1. A Party may only have recourse to this Article and dispute settlement under Chapter 27 (Dispute Settlement) if it considers that a measure of the other Party is inconsistent with an obligation under this Section, or that the other Party has otherwise failed to carry out an obligation under this Section, in a manner affecting trade or investment between the Parties.
2. A Party shall not have recourse to this Article or dispute settlement under Chapter 27 (Dispute Settlement) for a matter arising under Article 14.12.
3. The Parties shall endeavour to agree on the interpretation and application of this Section, and shall make every effort, including through dialogue, consultation, exchange of information and cooperation, to resolve any matter that might affect the operation of this Section.
4. A Party (the requesting Party) may request consultations with the other Party (the responding Party) by delivering a written request for consultations to the Agreement Coordinator designated under Article 26.6 (Administrative and Institutional
Provisions – Agreement Coordinators). The requesting Party shall include in its request information that is specific and sufficient to enable the responding Party to respond.
5. Unless the Parties decide otherwise, the Parties shall enter into consultations within 90 days of the date of receipt by the responding Party of the request referred to in paragraph 4. These consultations shall take place through the Joint Committee and the Parties shall make every effort to arrive at a mutually satisfactory resolution.
6. With respect to the consultations referred to in paragraph 4, each Party shall provide sufficient information that is reasonably available to it to the other Party to enable a full examination of the matter.
7. All consultations, unless otherwise decided by the Parties, shall be confidential.
8. A Party shall not have recourse to dispute settlement under Chapter 27 (Dispute Settlement) for a matter arising under this Section without first seeking to resolve the matter in accordance with this Article.
Section D: Responsible Business Conduct
Article 14.15: Responsible Business Conduct
1. Each Party recognizes the importance of responsible business conduct and commits to collaborate with relevant stakeholders to develop, adopt, promote, strengthen and implement policies that support a responsible business environment.
2. Each Party recognizes the contribution of responsible business conduct in promoting competitive markets, and achieving inclusive economic growth, gender equality and sustainable development.
3. Each Party recognizes the importance of encouraging enterprises to publicly disclose timely and accurate information on the actual or potential adverse impacts of their activities on people and the environment, with particular consideration for proactive engagement with marginalized groups in order to mitigate or prevent any adverse impacts on them.
4. Each Party affirms that enterprises operating within its jurisdiction are required to comply with all applicable laws, including laws concerning human rights, the rights of Indigenous Peoples, gender equality, environmental protection and labour.
5. Each Party shall encourage enterprises organized or constituted under its laws or operating in its territory to incorporate into their business practices and internal policies the internationally recognized standards, guidelines and principles of responsible business conduct that have been endorsed or are supported by that Party, including the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct, as amended, or the United Nations Guiding Principles on Business and Human Rights, as amended. These standards, guidelines and principles may address issues such as labour, the environment, gender equality, human rights and corruption.
6. Canada shall provide, on an annual basis, a report on its activities to encourage any enterprise organized or constituted under its laws that is operating in Ecuador to observe principles of responsible business conduct.