(i) exchange information on regulatory approaches and practices; or
(ii) promote the use of good regulatory practices to improve the efficiency and effectiveness of technical regulations, standards and conformity assessment procedures;
(b) facilitation of the greater use and alignment of technical regulations, standards, and conformity assessment procedures with relevant international standards, guides, and recommendations;
(c) promotion of the acceptance of technical regulations of the other Party as equivalent; and
(d) technical assistance and capacity building activities, aimed at strengthening national quality infrastructure, including standardization, metrology, conformity assessment, accreditation and other related topics.
Article 7.12. Committee on Technical Barriers to Trade
1. The Parties hereby establish a Committee on Technical Barriers to Trade (“the Committee”), composed of government representatives of each Party.
2. Through the Committee, the Parties shall strengthen their joint work in the fields of technical regulations, standards, and conformity assessment procedures with a view to facilitating trade between the Parties.
3. The Committee shall meet on request of a Party or the Joint Committee. Meetings or communications may be conducted by any means as decided by the Parties, including through electronic mail or videoconference.
4. The Committee’s functions include:
(a) monitoring the implementation, enforcement and administration of this Chapter, and identifying any potential amendments for referral to the Joint Committee for consideration;
(b) as appropriate, discussing proposed or final versions of standards, technical regulations or conformity assessment procedures of any Party;
(c) deciding on priority areas of mutual interest for future work under this Chapter and considering proposals for new sector-specific initiatives or other initiatives;
(d) encouraging cooperation between the Parties in matters that pertain to this Chapter;
(e) reviewing this Chapter in light of any developments under the TBT Agreement, and developing recommendations for amendments to this Chapter in light of those developments;
(f) taking any other steps that the Parties consider will assist them in implementing this Chapter;
(g) ensuring that appropriate government representatives, such as from the competent authority that has proposed a technical regulation or conformity assessment procedure, participate in meetings or discussions of the Committee, or in the information exchanges or technical discussions referred to under Articles 7.8 and 7.10; and
(h) addressing any issue that a Party raises relating to this Chapter.
Article 7.13. Contact Points
1. Each Party shall designate a contact point and notify it to the other Party. A Party shall promptly notify the other Party of any change to its contact point.
2. The functions of each contact point shall include:
(a) communicating with the other Party’s contact point, including facilitating discussions, requests and the timely exchange of information on matters arising under this Chapter;
(b) communicating with and coordinating the involvement of relevant government agencies, including regulatory authorities, in the territory of the Party it represents on matters arising under this Chapter; and
(c) consulting and, if appropriate, coordinating with interested persons in the territory of the Party it represents on matters arising under this Chapter.
Chapter 8. EMERGENCY ACTION
Article 8.1. Definitions
For the purposes of this Chapter:
competent investigating authority means:
(a) for Canada, the Canadian International Trade Tribunal, or its successor; and
(b) for Ecuador, the Trade Remedies Directorate of the Ministry of Production, Foreign Trade and Investment, or its successor;
domestic industry means, with respect to an imported good, the producers as a whole of the like or directly competitive good operating in the territory of a Party or those
domestic producers whose collective production of the like or directly competitive good constitutes a major proportion of the total domestic production of that good;
emergency action means an emergency action described in Article 8.3;
serious injury means a significant overall impairment of a domestic industry;
substantial cause means a cause that is important and not less important than any other cause;
threat of serious injury means serious injury that is clearly imminent based on facts and not based on allegation, conjecture or remote possibility; and
transition period means the 10-year period beginning on the date of entry into force of this Agreement, except when the tariff elimination for the good against which the emergency action is taken occurs over a longer period of time, in which case the transition period is the period of the staged tariff elimination for that good.
Article 8.2. Coordination of Safeguard Measures
1. A Party shall not adopt or maintain with respect to the same good at the same time:
(a) an emergency action; and
(b) a measure pursuant to Article XIX of the GATT 1994 and the Safeguards Agreement.
2. A Party shall not adopt or maintain a safeguard measure under this Chapter on any product imported under a tariff-rate quota established by the Party under this Agreement. A Party adopting or maintaining a safeguard measure under Article XIX of the GATT 1994 and the Safeguards Agreement may exclude from the safeguard measure imports of originating goods under a tariff-rate quota established by the Party under this Agreement and set out in Annex 2-B (Tariff Commitments), if those imports are not a cause of serious injury or threat thereof.
Article 8.3. Application of a Bilateral Emergency Action
1. A Party may adopt an emergency action described in paragraph 2:
(a) only during the transition period; and
(b) if as a result of the reduction or elimination of a customs duty pursuant to this Agreement an originating good is being imported into the Party’s territory in such increased quantities, in absolute terms or relative to domestic production, and under such conditions as to constitute a substantial cause of serious injury, or threat thereof, to a domestic industry producing a like or directly competitive good.
2. If the conditions set out in paragraph 1 and Article 8.4 and Article 8.5 are met, a Party may, to the extent necessary to prevent or remedy serious injury, or threat thereof, and to facilitate adjustment:
(a) suspend the further reduction of a rate of customs duty provided for under this Agreement on the good; or
(b) increase the rate of customs duty on the good to a level not exceeding the lesser of:
(i) the most-favoured-nation rate of customs duty in effect at the time the emergency action is taken, and
(ii) the base rate of customs duty as provided in the Schedule to Annex 2-B (Tariff Commitments).
Article 8.4. Notification and Consultations
1. A Party shall, in writing, promptly notify and invite for consultations the other Party in connection with:
(a) initiating an emergency action proceeding;
(b) making a finding of serious injury, or threat thereof, under the conditions set out in Article 8.3.1; and
(c) adopting an emergency action.
2. A Party shall, without delay, provide to the other Party a copy of the public version of any notice or any report by a competent investigating authority issued in connection with matters notified pursuant to paragraph 1.
3. If a Party accepts an invitation for consultations made pursuant to paragraph 1, the Parties shall enter into consultations to review the notification under paragraph 1 or any document issued in connection with the emergency action proceeding.
4. An emergency action shall be initiated no later than one year after the date the proceeding is instituted.
Article 8.5. Standards for Emergency Action
1. A Party shall not maintain an emergency action:
(a) for a period exceeding three years; or
(b) beyond the expiration of the transition period.
2. A Party shall not apply an emergency action against a good originating in the territory of the other Party more than once.
3. On the termination of an emergency action, a Party shall set the rate of customs duty at the rate that would have been in effect but for the action according to the Party’s Schedule to Annex 2-B (Tariff Commitments) for the staged elimination of the tariff.
4. In order to facilitate adjustment in a situation when the expected duration of an emergency action is longer than one year, at the beginning of the second year, the Party applying a measure under Article 8.3 shall progressively liberalize it at regular intervals during the remainder of the period of application.
Article 8.6. Compensation
1. A Party adopting an emergency action under Article 8.3 shall provide to the other Party mutually accepted trade liberalizing compensation in the form of concessions with substantially equivalent trade effects or equivalent to the value of the additional duties expected to result from the action.
2. If the Parties are unable to decide on compensation referred to in paragraph 1, the Party whose goods are subject to the action may take tariff action with trade effects substantially equivalent to the emergency action taken under Article 8.3.
3. The Party taking the tariff action referred to in paragraph 2 shall apply the action only for the minimum period necessary to achieve the substantially equivalent effects and only while the emergency action under Article 8.3 is in effect.
Article 8.7. Administration of Emergency Action Proceedings
1. Each Party shall ensure the consistent, impartial and reasonable administration of its laws, regulations, decisions and rulings governing emergency action proceedings.
2. Each Party shall entrust determinations of serious injury, or threat thereof, in an emergency action proceeding to a competent investigating authority. Each Party shall:
(a) ensure that those determinations are subject to review by judicial or administrative tribunals, to the extent provided by the Party’s law;
(b) ensure that negative injury determinations are not modified, except through a review referred to in subparagraph (a); and
(c) provide its competent investigating authority with the necessary resources to enable it to fulfill its duties.
3. Each Party shall adopt or maintain equitable, timely, transparent and effective procedures for emergency action proceedings in accordance with the requirements set out in paragraph 4.
4. A Party shall apply an emergency action only following an investigation by the Party’s competent investigating authority in accordance with Articles 3 and 4.2 of the Safeguards Agreement. To this end, Articles 3 and 4.2 of the Safeguards Agreement are incorporated into and made part of this Agreement.
Chapter 9. COMPETITION POLICY
Article 9.1. Definitions
For the purposes of this Chapter:
competition authority means an authority or authorities responsible for the enforcement of a Party’s competition laws; and
enforcement proceeding means a judicial or administrative proceeding following an investigation into an alleged contravention of the competition laws, and does not include the consensual resolution of issues. (1)
Article 9.2. Objectives
1. The Parties recognize that anti-competitive business conduct and mergers, and misleading or deceptive commercial activities may distort the proper functioning of markets and offset the benefits of trade liberalization. The Parties seek to take appropriate measures to proscribe anti-competitive conduct, mergers and activities, to implement policies promoting competition and consumer protection, and to cooperate on matters covered by this Chapter to help secure the benefits of this Agreement.
2. The Parties recognize that anti-competitive business conduct and mergers, and misleading or deceptive commercial activities outlined in their competition and consumer protection laws are incompatible with this Agreement, insofar as they may affect trade between the Parties.
Article 9.3. Competition Laws and Authorities
1. Each Party shall adopt or maintain competition laws that proscribe anti-competitive business conduct and mergers, and shall take appropriate action with respect to anti-competitive business conduct and mergers. The purpose of those laws is to encourage competition in order to promote economic efficiency and benefit consumers and businesses. The laws and regulations a Party adopts or maintains to proscribe anti-competitive business conducts and mergers may be administrative, civil or criminal in nature.
2. Each Party shall endeavour to apply its competition laws to all commercial activities in its territory. This does not prevent a Party from applying its competition laws to a commercial activity outside its borders that has an appropriate nexus to its jurisdiction.
3. Each Party may provide for an exemption from the application of its competition laws provided that the exemption is transparent, established in its law, and based on public policy grounds or public interest grounds.
4. Each Party shall maintain a competition authority.
5. Each Party shall ensure independence in decision-making by its competition authority and in relation to the enforcement of its competition laws.
6. Each Party shall ensure that its competition authority enforces its competition laws in accordance with the objectives set out in this Chapter, and does not discriminate on the basis of nationality.
Article 9.4. Procedural Fairness In Competition Law Enforcement
1. Each Party shall ensure that, before it imposes a sanction or remedy against a person for contravening its competition laws, it affords that person a reasonable opportunity, in accordance with its law, to:
(a) obtain non-privileged information about the competition authority’s competition concerns, including identification of the specific competition laws alleged to have been contravened;
(b) if the person contests the allegations in an enforcement proceeding,
(i) have timely access to non-privileged information that is necessary to prepare an adequate defence; for greater certainty, confidential third-party information must only be provided to the person’s legal counsel, and a competition authority is not obliged to produce information that is not already in its possession or control;
(ii) be heard and present evidence or testimony in their defence, including, if applicable, to offer the analysis of a properly qualified expert, cross-examine any testifying witness and review and rebut evidence; and
(c) contest an allegation that the person has contravened competition laws before an independent and impartial judicial or administrative body including review of alleged substantive or procedural errors,
except that a Party may provide for these opportunities within a reasonable time after it imposes an interim measure.
2. Each Party shall ensure that its competition authority affords to a person who has allegedly contravened or is allegedly contravening a Party’s competition laws a reasonable opportunity to be represented by legal counsel, including by:
(a) allowing, at the person’s request, legal counsel’s participation in meetings or proceedings between the competition authority and the person. For greater certainty, this provision does not apply to ex parte proceedings, or to searches of premises pursuant to search warrants; and
(b) recognizing a privilege as acknowledged by its law, if not waived, for lawful communications between the legal counsel and the person if the communications concern the soliciting or rendering of legal advice.
3. Each Party shall adopt or maintain written procedures pursuant to which its competition law investigations are conducted. If these investigations are not subject to definitive deadlines, then subject to its law, each Party shall ensure its competition authority conducts its investigations within a reasonable time frame taking into account circumstances, including the nature and complexity of the investigation.
4. Each Party shall adopt or maintain rules of procedure and evidence that apply to an enforcement proceeding concerning alleged contraventions of its competition laws and the determination of sanctions and remedies under that proceeding. These rules shall include procedures for introducing evidence, including expert evidence, if applicable, and shall apply equally to all persons subject to an enforcement proceeding.
5. Each Party’s competition authority shall maintain measures to preserve all relevant evidence, including exculpatory evidence, that it collects as part of an investigation. Evidence must continue to be preserved until the investigation is discontinued or completed, or until the enforcement proceeding is complete and all appeals are exhausted.
6. Each Party shall authorize its competition authority or public prosecutor to resolve alleged contraventions voluntarily by consent of the competition authority or public prosecutor and the person subject to the investigation. A Party may provide for this voluntary resolution to be subject to judicial or independent tribunal approval or a public comment period before becoming final.
7. Each Party shall ensure that its competition authority does not state or imply in a public notice revealing the existence of a pending or ongoing investigation against a particular person that the person has in fact contravened the Party’s competition laws.
8. Each Party shall ensure that its competition authority or public prosecutor has the burden of establishing the legal and factual basis for an alleged contravention of the Party’s competition laws in an enforcement proceeding; however, a Party may require that a person accused of a contravention has the burden of establishing certain defences to the allegation.
9. Subject to paragraph 1(b) and in accordance with its law, each Party shall provide for the protection of confidential information obtained by its competition authority during the investigative process.
10. Each Party shall, if appropriate and legally permissible, ensure that its competition authority informs a person that is the subject of an investigation as soon as practicable of that investigation, according to the status and specific needs of the investigation, such as the need to keep the investigation covert or to take immediate action to mitigate further harm. This information must include the legal basis for the investigation and the alleged conduct or activity under investigation.
11. Each Party shall, if appropriate and legally permissible, provide a person that has been informed that they are the subject of an investigation, or that has notified a merger or other transaction or conduct, with reasonable opportunities for meaningful and timely engagement on significant and relevant factual, legal, economic and procedural issues, according to the status and specific needs of the investigation.
Article 9.5. Transparency
1. The Parties recognize the value of making their competition enforcement and advocacy policies as transparent as possible.
2. Each Party shall ensure that its competition laws, regulations and information on enforcement policies and practices are publicly available.
3. On request of a Party, the other Party shall make available to the requesting Party public information concerning:
(a) its competition law enforcement policies and practices; and
(b) exemptions to its competition laws.
4. Each Party shall ensure that a final decision from an enforcement proceeding finding a contravention of its competition laws sets out findings of fact and the reasoning,2 including legal and, if applicable, economic analysis, on which the decision is based.
5. Each Party shall ensure that a final decision referred to in paragraph 4 and any order implementing that decision are published, or if publication is not practicable, are otherwise made publicly available in a manner that enables interested persons and other parties to become acquainted with them. Each Party shall ensure that the version of the decision or order that is published or made publicly available is redacted to the extent necessary in order to be consistent with that Party’s law regarding confidentiality and privilege and other applicable exceptions, including the need to safeguard information on the grounds of public policy or public interest.
Article 9.6. Confidentiality
1. Each Party shall have publicly available rules, policies or guidance regarding the identification and treatment of confidential information.
2. If a third-party seeks to obtain access to confidential information in the possession of the competition authority, the competition authority shall generally oppose, to the fullest extent possible, the disclosure of confidential information protected under the Party’s laws.
2 This does not apply to a jury trial in Canada.
Article 9.7. Consumer Protection
1. The Parties recognize the importance of consumer protection policy and enforcement to creating efficient and competitive markets and enhancing consumer trust in the free trade area.
2. Each Party shall adopt or maintain consumer protection laws or other laws or regulations that proscribe misleading or deceptive commercial activities, including:
(a) misrepresentations or omissions of material fact, including implied factual misrepresentations;
(b) misleading representations or deceptive marketing practices in promoting the supply or use of a product, service or any business interest; and
(c) misleading representations regarding the price of a product, service or any business interest.
3. The laws and regulations a Party adopts or maintains to proscribe the activities identified in paragraph 2 may be civil or criminal in nature.
4. The Parties recognize that the enforcement of consumer protection laws and regulations is in the public interest.
Article 9.8. Cooperation In Competition and Consumer Protection
1. The Parties recognizes that anti-competitive business conduct and mergers, and misleading or deceptive commercial activities increasingly transcend borders and that cooperation and coordination between the Parties to foster effective competition law and consumer protection enforcement is important and in the public interest.
2. Each Party’s competition authority shall cooperate, as appropriate:
(a) in the areas of competition policy by exchanging information on the development of those policies; and
(b) on issues of competition law enforcement, including the exchange of information, investigative and enforcement assistance, and consultation and coordination on cross-border investigations.
3. Each Party shall promote, as appropriate, cooperation and coordination on matters of mutual interest related to misleading or deceptive commercial activities, including in the enforcement of its consumer protection laws, in the exchange of information and in joint public awareness initiatives.
4. A Party’s competition authority or any competent authority responsible for the enforcement of consumer protection laws may consider entering into a cooperation arrangement with the respective authority of the other Party that sets out mutually decided terms of cooperation.
5. Recognizing that the Parties can benefit by sharing their diverse experience in developing, administering and enforcing their competition and consumer protection laws and policies, and by providing each other with technical assistance in any area they consider appropriate (3), the Parties shall consider undertaking technical cooperation activities, including:
(a) providing advice or training on relevant issues, including through the exchange of officials;
(b) exchanging information and experiences on competition advocacy and consumer protection policy, including ways to promote a culture of competition; and
(c) assisting a Party as it implements a new competition or consumer protection law.
6. The Parties shall cooperate under this Article in a manner compatible with their respective laws, policies, regulations and mutual interests, and within their reasonably available resources. Information shared pursuant to this Article may be subject to additional requirements, including confidentiality or restrictions on the purposes for which the information may be used.
Article 9.9. Consultations
1. In order to foster understanding between the Parties, or to address specific matters that arise under this Chapter, on request of the other Party, a Party shall enter into consultations with the requesting Party. The requesting Party shall indicate, if relevant, how the matter affects trade or investment between the Parties. A Party shall accord full and sympathetic consideration to the concerns of the Party requesting consultation.
2. To facilitate the discussion regarding the matter of consultations, each Party shall endeavour to provide relevant non-confidential, non-privileged information to the other Party.