10. Without prejudice to the protection of confidential information, each Party shall ensure that its competent authorities have the authority to give the right holder sufficient opportunity to have any goods detained by the customs administration inspected in order to substantiate its claims. Each Party shall also ensure that its competent authorities have the authority to give the importer an equivalent opportunity to have any such goods inspected. Where the competent authorities have made a positive determination on the merits of a case, a Party may provide the competent authorities the authority to inform the right holder ofthe names and addresses of the consignor, the importer and the consignee, and of the quantity ofthe goods in question.
11. Where a Party requires its competent authorities to act on their own initiative and to suspend the release of goods in respect of which they have acquired prima facie evidence that an intellectual property rights is being infringed:
(a) The competent authorities may at any time seek from the right holder any information that might assist them to exercise these powers;
(b) The importer and the right holder shall be promptly notified of the suspension by the Party's competent authorities, and where the importer lodges an appeal against the suspension with competent authorities, the suspension shall be subject to the conditions, with such modifications as may be necessary, set out in paragraphs 6 through 8; and
(c) The Party may exempt public authorities and officials from liability, except when the offending actions were not taken or intended in good faith.
12. Without prejudice to other rights of action open to the right holder and subject to the defendant's right to seek judicial review, each Party shall provide that its competent authorities shall have the authority to order the destruction or disposal of infringing goods in accordance with the principles set out in Article 23 (4). In regard to counterfeit goods, the authorities shall not allow the re-exportation of the infringing goods in an unaltered state or subject them to a different customs procedure, other than in exceptional circumstances.
13. A Party may exclude from the application of paragraphs 1 through 12 small quantities of goods of a non-commercial nature contained in travellers' personal luggage or sent in small consignments that are not repetitive.
Article 27. Existing Subject Matter
To the extent this Agreement requires a Party to increase its level of protection and enforcement of intellectual property rights, it gives rise to obligations in respect of all subject matter existing at the date of application of this Agreement for the Party in question, and which is protected in the Party on the date the Agreement enters into force, or which meets or comes subsequently to meet the criteria for protection under the terms of this Agreement. This obligation is in addition to the obligation to implement fully the obligations of Article 18 of the Berne Convention (Paris text) with respect to all works, including sound recordings.
Article 28. Definitions for Chapter II
1. For purposes ofthis Chapter:
(a) "confidential information" includes trade secrets, privileged information, and other undisclosed information that has not become subject to an unrestricted public disclosure under the Party's domestic law.
(b) "encrypted program-carrying satellite signal" means a program-carrying satellite signal that is transmitted in a form whereby the aural or visual characteristics, or both, are modified or altered for the purpose of preventing the unauthorized reception of a program carried in that signal by persons without the authorized equipment that is designed to eliminate the effects of such modification or alteration;
(c) "in a manner contrary to honest commercial practices" means at least practices such as knowing breach or inducement to breach of contract, of confidence, or of an intellectual property right, and includes the acquisition, disclosure, or use of confidential information by third persons who knew, or were negligent in failing to know, that such practices were involved in the acquisition;
(d) "intellectual property rights" refers to copyrights and related rights, trademarks, patents, protection of integrated circuit layout designs and encrypted satellite signals, trade secrets, and protection of plant breeders rights;
(e) "lawful distributor of an encrypted satellite signal" in a Party means the person who originally transmitted the signal, regardless of the location of such person, and any other person or persons designated by the original transmitter as lawful distributors of such signal in such Party.
(f) "national" of a Party shall, in respect of the relevant intellectual property rights, be understood as those natural or legal persons that would meet the criteria for eligibility for protection provided for in the Paris Convention, the Berne Convention, the Geneva Convention, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), the UPOV Convention (1978), the UPOV Convention (1991) or the Treaty on Intellectual Property in Respect ofIntegrated Circuits, as if each Party were a party to those Conventions, and with respect to intellectual property rights that are not the subject of these Conventions, "national of a Party" shall be understood at least to include any person that is a citizen or permanent resident ofthat Party.
(g) "public" includes, with respect to rights of communication and performance of works provided for under Articles 11, llbis(l) and 14(1)(ii) of the Berne Convention, with respect to dramatic, dramatic-musical, musical and cinematographic works, at least, any aggregation of individuals intended to be the object of, and capable of perceiving, communications or performances of works, regardless of whether they can do so at the same or different times or in the same or different places, provided that such an aggregation is larger than a family and its immediate circle of acquaintances or is not a group comprising a limited number of individuals having similarly close ties that has not been formed for the principal purpose of receiving such performances and communications ofworks; and
(h) "right holder' includes the right holder personally, any other natural or legal person authorized by the right holder who is an exclusive license ofthe right, or other authorized persons, including federations and associations, having legal standing under domestic law to assert such rights.
Article 29. Consultations
Both Parties agree, at the request of either Party, to consult promptly on matters relating to the protection and enforcement of intellectual property rights, in particular with respect to implementation ofthe obligations ofthis Chapter.
Article 30. Timing of Specific Intellectual Property Obligations
1. Each Party shall submit any legislation and issue any regulations necessary to carry out fully its obligations under Articles 15, 17,18,19, 20, 21, 22, 23, 24, 25 and 26 no later than twenty-one months following the entry into force of this Agreement, and exert its best efforts to enact and implement such legislation and give effect to such regulations no later than twenty-seven months following the entry into force ofthis Agreement.
2. Each Party shall submit any legislation and issue any regulations necessary to carry out fully its obligations under Article 16 no later than twenty-seven months following the entry into force of this Agreement, and exert its best efforts to enact and implement such legislation and give effect to such regulations no later than thirty-six months following the entry into force ofthis Agreement.
3. Notwithstanding the time frames for implementation of the obligations of Articles 15 through 26 set forth in paragraphs 1 and 2 above, each Party shall immediately comply to the extent possible under its laws, regulations and practice with the obligations set forth in such Articles and shall at no time lessen its level of compliance with such obligations.
4. Notwithstanding any other provision of this Agreement, neither Party shall be obligated to comply with Article 14(1) unless and until such time as both Parties provide the level of protection required under Articles 15 through 26 and have exchanged written communications to that effect. The Parties may agree to be bound by their obligations under Article 14(1) on an Article-by-Article basis (for Articles 15 through 26) as long as the communications referred to in this section have been exchanged for such individual Articles.
5. Articles 13 through 29 shall come into force upon the Parties' exchange of notes indicating that all the legislation and regulations necessary to give full effect to the obligations
Chapter III. Trade In Services
Article 31. Definitions
For the purposes of this Agreement, trade in services is defined as the supply of a service:
(a) From the territory of one Party into the territory of the other Party;
(b) In the territory of one Party to the service consumer of any other Party;
(c) By a service supplier of one Party , through commercial presence in the territory ofthe other Party;
(d) By a service supplier of one Party, through presence of natural persons (2) of a Party in the territory of other Party .
Article 32. Market Access
1. Each Party shall impose no restriction on the ability of the nationals and companies of the other Party to engage in trade in services in the sectors listed in paragraphs 1 and 2 of Article 34, and to this end shall not maintain or adopt either with respect to a regional subdivision or with respect to its entire territory the following restrictions in those sectors:
(a) Limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
(b) Limitations on the total value service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) Limitations on the total number of service operations or the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test; (3)
(d) Limitations on the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test;
(e) Measures which restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; and
(f) Limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.
2. Obligations of the United States are subject to the terms, limitations and conditions for market access set out in the United States schedule of specific commitments under the WTO General Agreement on Trade in Services ("GATS").
Article 33. National Treatment
1. Each Party shall accord to services and service suppliers of the other party, in respect to all measures affecting the supply of services, treatment no less favorable than it accords to its own like service and service suppliers.
2. A Party may meet the requirements of paragraph 1 by according to services and service suppliers of the other Party, either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.
3 Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers ofthe Party compared to like services or service suppliers ofthe other Party.
4. Obligations of the United States are subject to the conditions and qualifications on national treatment set out in the United States schedule of specific commitments under the GATS.
Article 34. Covered Sectors
1. For the purpose of this Agreement only, and without prejudice to any future requests by the United States in the Lao PDR's accession to the WTO Agreement, or any other bilateral, regional, or multilateral trade negotiation, this Chapter shall apply to the following service sectors:
(a) The following professional services: legal services, accounting, auditing and bookkeeping services, taxation consulting services, architectural services, engineering services, integrated engineering services;
(b) Computer and related services;
(c) The following business services: advertising services, market research and market polling services, management consulting services;
(d) Basic and value-added telecommunications services, as indicated in the list in paragraph 2, including commitments to regulate basic telecommunications providers fairly and to provide market access to and use of basic telecommunications networks;
(e) The following audiovisual services: motion picture and video tape production and distribution services, motion picture projection services, sound recording;
(f) construction and related engineering services;
(g) the following franchising; distribution services: wholesale trade, retail trade, and
(h) insurance, banking, paragraph 3; and other financial services, as indicated in the list
(i) health and medical care services;
(g) educational services; and
(k) tourism and travel related services
2. Further to paragraph I. above, this Chapter shall apply to the following basic and value-added telecommunications services:
(a) Basic telecommunications services: (4)
(i) voice services;
(ii) packet-switched data transmission services;
(iii) circuit-switched data transmission services;
(iv) telex services;
(v) telegraph services;
(vi) facsimile services;
(vii) private leased circuit services; (5) and
(viii) other basic communications services.
(b) Mobile services:
(i) analogue/Digital cellular services;
(ii) PCS (Personal Communications Services);
(iii) paging services;
(iv) mobile data services;
(c) Value-added telecommunications services:
(i) electronic mail;
(ii) voice mail;
(iii) on-line information and data base retrieval;
(iv) electronic data interchange;
(v) enhanced/value-added facsimile services (including store and forward, store and retrieve);
(vi) code and protocol conversion;
(vii) on~line information and/or data processing (including transaction processing); and
(viii) other value-added telecommunications services.
3. Further to paragraph 1 above and subject to the provisions of Article 35, this Chapter shall apply to the following financial services:
(a) Insurance and insurance-related services:
(i) direct insurance (including co-insurance):
(A) life; and
(B) non-life.
(ii) reinsurance and retrocession;
(iii) insurance intermediation, such as brokerage and agency; and
(iv) services auxiliary to insurance, such as Consultancy, actuarial, risk assessment and claim settlement services.
(b) Banking and other financial services (excluding insurance):
(i) acceptance of deposits and other repayable funds from the public;
(ii) lending -of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction;
(iii) financing leasing;
(iv) all payment and money transmission, services, including credit, charge and debit cards, travellers cheques and bankers drafts;
(v) guarantees and commitments;
(vi) trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
(A) money market instruments (including cheques, bills, certificates of deposits);
(B) foreign exchange;
(C) derivative products including , but not limited to, futures and options;
(D) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(E) transferable securities;
(F) other negotiable instruments and financial assets, including bullion;
(vii) participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision of services related to such issues;
(viii) money broking;
(ix) asset management, such as cash or portfolio management, all forms of collective investment management, penston fund management, custodial, depository and trust services;
(x) settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
(xi) provision and transfer of financial information, and financial data processing and related software by suppliers ofother financial services; advisory, intermediation and other auxiliary financial services with respect to all the activities listed in subparagraphs (i) through (xi), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy.
(5) Sub sector (vii), "private leased circuit transmission services" includes the sale or lease of any type of network capacity for the supply of services listed in any other subsector, and shall include network capacity with respect to submarine cables, satellite space segment, satellite earth or ground stations and terrestrial wireless networks.
Article 35. Financial Services
1. Notwithstanding any other provisions of this Agreement, a Party shall not be prevented from taking measures for prudential reasons, including for protection of investors depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of this Agreement, they shall not be used as a means of avoiding the Party's commitments or obligations under this Agreement.
2. Not all of the services listed in paragraph 3 of Article 34 are provided in Laos as of the date of signature of this Agreement. Where such services are not provided by the private sector in the Lao PDR, access by financial service suppliers of the United States and the provision of new financial services may be subject to measures adopted for prudential reasons, in accordance with paragraph 1 above.
3. The obligations in Articles 32 and 33 shall not, with respect to the financial services sector, apply to the United States. The United States will review the application of this paragraph one year after the date of entry into force of this Agreement.
Chapter IV. General Articles
Article 36. General Definitions
For the purposes of Chapter I, Article 32 and Article 38, the terms set forth below shall have the following meanings:
(a) "Company" means any kind of:
(i) Corporation,
(ii) Company,
(iii) association,
(iv) Partnership,
(v) Sole proprietorship,
(vi) Joint venture, or
(vii) other organization.
Whether or not organized for pecuniary gain, or privately or governmentally owned or controlled, and legally constituted under the laws and regulations of a Party or a political subdivision thereof (i.e. all levels of government);
(b) "national" means a natural person who is a national of a Party under its applicable law.
Article 37. National Security
The provisions of this Agreement shall not limit the right of either Party to take any action for the protection of its security interests.
Article 38. General Exceptions
1. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prohibit the adoption or enforcement by a Party of measures:
(a) Necessary to secure compliance with laws or regulations not inconsistent with the provisions of this Agreement, including measures related to the protection of intellectual property rights and the prevention of deceptive practices, or
(b) Referred to in Article XX of the GATT 1994.
2. Each Party reserves the right to deny any company the advantages of this Agreement if nationals of any third country control such a company and, in the case of a company of the other Party, that company has no substantial business activities in the territory of the other Party or is controlled by nationals of a third country with which the denying country does not maintain normal economic relations.
3. Nothing in this Agreement limits the application of any existing or future agreements between the Parties on trade in textiles and textile products.
4. Nothing in this Agreement shall preclude a Party from applying its laws relating to entities substantially owned or effectively controlled by the government ofthe other Party.
Article 39. Consultations, Dispute Settlement, Compensation and Adjustment
1. The Parties agree to consult periodically to review the operation of this Agreement.
2. The Parties agree to consult promptly through appropriate channels at the request of either Party to discuss any matter concerning the interpretation or implementation of this Agreement and other relevant aspects ofthe relations between the Parties.
3. In the event either Party believes that the other Party has failed to implement one or more obligations in this Agreement, or otherwise believes that any benefit accruing to it ;tlyis being denied as a result of an action by the other Party, such Party may request compensation from the other Party in an amount that is equivalent in value to the damage to such Party's interests.
4. If the Party from whom compensation is requested fails to provide such compensation within a reasonable period of time, the Party requesting compensation may take action that affects the goods or services of the other Party in an amount that is equivalent in value to the damage to the interests of the Party requesting compensation.
Article 40. Final Provisions
1. The provisions of this Agreement shall apply to the respective customs territories of the Parties.
2. This Agreement shall enter into force on the day on which the Parties have exchanged notifications that each has completed the legal procedures necessary for this purpose, and shall remain in force for three years.
3. This Agreement shall be extended for successive terms of three years if neither Party notifies the other Party of its intent to terminate this Agreement at least 30 days before the end of a term.
4. If either Party does not have domestic legal authority to carry out its obligations under this Agreement, either Party may suspend application of this Agreement, or, with agreement of the other Party, any part of this Agreement. In that event, the Parties will seek, to the fullest extent practicable under domestic law, to minimize unfavorable effects on existing trade relations between the Parties.