Parties reject any unfair practice of international trade that causes or threatens to cause distortions to trade. There are not considered unfair practices acquired rights in the framework of the World Trade Organization.
Article 7.02. Scope
The Parties confirm their rights and obligations under the Agreement on Subsidies and Countervailing Measures of the World Trade Organization and the Agreement on the implementation of article VI of GATT 1994.
The investigation procedure and the application of anti-dumping or countervailing duties shall be in accordance with the Agreement on Subsidies and Countervailing Measures of the World Trade Organization and the Agreement on the implementation of article VI of GATT 1994 as well as other laws governing the application of the same in each party.
Article 7.03. Explanatory
Established an anti-dumping or countervailing duty, provisional or final, the Parties may request the competent authority to clarify whether a good is or is not subject to the same.
The submission of the request referred to in the preceding paragraph shall not be interrupted during the investigation or suspend the application of anti-dumping or countervailing duties adopted.
Article 7.04. Settlement of Disputes
Where a party affected by a measure adopted by a final decision within the meaning of article 16.03, may refer the dispute to the dispute settlement procedure established in chapter XVI (dispute settlement) of this Treaty.
Chapter VIII. Safeguard Measures
Article 8.01. Definitions
For purposes of this chapter:
"threat of serious injury" means clearly imminent threat of serious harm. the determination of the existence of a threat of serious injury shall be based on facts and not merely on allegation, conjecture or remote possibility;
"serious injury" means a significant overall impairment of a domestic industry;
"the domestic industry" means producers as a whole of the like or directly competitive products operating within the territory of a party or those whose collective output of the like or directly competitive products constitutes a major proportion of the total domestic production of those products. Such major proportion may not be less than 25 percent (25 per cent).
Article 8.02. General Provisions
1. Parties maintain their rights and obligations to apply safeguard measures in accordance with Article XIX of GATT 1994 and the Agreement on Safeguards of the World Trade Organization.
2. Parties may apply safeguard measures for imports of products originating in the territory of one of the Parties, which shall be based on clear, strict criteria defined and temporality. Parties may adopt safeguard measures bilateral or global.
For the application of the bilateral safeguards measures the competent authorities shall be as provided for in this chapter and, subsidiarily, in accordance with Article XIX of GATT 1994 and the Agreement on Safeguards of the World Trade Organization and the national legislation.
Parties reiterate their commitment to respect the right of defence to importers and exporters and other interested parties to present evidence and to be heard during the course of the proceedings.
Article 8.03. Bilateral Safeguard Measures
1. Provisions on bilateral safeguard measures shall be applied in accordance with paragraph 2 of article 1.01.
2. Parties may adopt and implement bilateral measures if the volume of imports of one or more goods increases at a pace and under such conditions as to cause or threaten to cause serious injury to the domestic industry of like or directly competitive products.
3. These measures may only be made when strictly necessary to counter the threat or serious injury caused by imports from the territory of the other party.
4. Measures shall be tariff rate. Applied tariffs shall be the most favoured nation actually applied.
5. Measures shall be applied for a period of one year, which may be extended by an equal and consecutive period. Extension shall be as provided for in paragraph 14 of articles 8.04.
6. Parties may initiate investigations for the application of a safeguard measure still until 24 months after the stipulated in paragraph 1 of Article 3.04. this provision shall apply to the products listed in the annex to article 3.04 from the date on which are incorporated in the Free Trade Area.
7. At the conclusion of the application of the Bilateral measure, it shall be subject to the provisions of paragraph 1 of Article 3.04.
8. Parties to this Treaty shall apply bilateral safeguard measures on the same product only once.
Article 8.04. Procedure Bilateral Safeguard Measures
1. Each Party shall establish clear and strict procedures for the adoption and application of safeguard measures in accordance with the provisions of this chapter.
2. In determining the origin of the application of a safeguard measure the competent investigating authority of the importing Party shall carry out the investigation.
3. The party decides to initiate a procedure that could be taken bilateral safeguard measures shall publish the initiation of the same through their respective official bodies and notify in writing to the exporting party within the (3) third working day following the publication.
4. The exporting Party shall be notified to the seven (7) days from the date on which the written notification and their accompanying documents have been delivered to the diplomatic representation of the exporting party without prejudice to a copy sent by mail, fax or e-mail.
5. In determining whether increased imports have caused or threatened to cause serious damage, the competent investigating authority shall evaluate all relevant factors of an objective and quantifiable nature having a bearing on the domestic industry concerned, in particular the rate and the amount of increase in imports of the product concerned in absolute and relative terms, the share of the domestic market taken over by increased imports, the changes in the level of domestic prices, sales, production, productivity utilisation, capacity, market share, profits and losses and employment.
6. In determining the validity of the safeguard measures, it shall show a direct causal link between increased imports of the product concerned and the injury or threat of serious injury to the domestic industry. If there were factors other than the increased imports from the other party that simultaneously damage or threatens to cause damage to a domestic industry, the threat thereof or injury caused by these factors cannot be attributed to imports.
7. If as a result of the investigation, the competent authority determines on the basis of objective evidence that it satisfies the conditions laid down in this chapter, the importing Party may initiate consultations with the other party.
8. The request shall contain sufficient information to support the implementation of the measures, including:
The names and addresses available of domestic producers of like or directly competitive products representing the national industry, its participation in the domestic industry of the product and the reasons for claiming that they are representative of the sector;
A clear and comprehensive description of the product subject to the procedure, the tariff classification and description of the like or directly competitive product;
Import data for each of the three most recent years (3) which constitute the basis for that product is being imported in such increased quantities, either in absolute terms or relative to domestic production;
The data on total domestic production of the like or directly competitive product for the last three years; (3)
The data showing the serious injury or threat thereof caused by imports to the sector in question in accordance with the information referred to in subparagraphs (c) and (d);
An enumeration and description of the alleged causes of the serious injury or threat thereof, based on the information required under subparagraphs (a) to (d) and a summary of the basis for the claim that the increase in imports of the like or directly competitive product, in absolute or relative terms to the domestic industry, is the cause of it; and
The information of the safeguard measures to be implemented and its duration.
The request for consultations shall be notified in accordance with paragraph 4 of this article.
9. The consultations shall begin from the day following the receipt by the exporting Party of the notification of the request for consultations. This period shall be thirty (30) days, unless the parties have agreed to a shorter period.
10. During the consultations, the exporting Party shall make all comments, in particular as from the proposed measure and its compensation.
11. The party affected by a safeguard measure may impose a compensatory tariff measure mutually agreed, in the period for consultation with trade effects equivalent to the impact of the safeguard measure. If the parties are unable to agree on compensation the party intending to take a bilateral action shall be entitled to do so and the affected party may unilaterally impose compensation.
12. Bilateral measures provided for in this chapter may be taken only after the completion of consultations. the final resolution through the imposition of a safeguard measure and the compensatory, shall be published in the official bodies for the party to take, as appropriate and shall be notified to the other party within three (3) working day following its publication.
13. Consultations do not require a party to disclose information provided on a confidential basis, the disclosure of which would impede the enforcement of the party concerned or injure commercial interests. Without prejudice to the importing Party that intends to apply the safeguard measure shall provide to the other party a non-confidential Summary of the information that is confidential or indicate why such a summary cannot be provided.
14. If the importing Party determines that the reasons that led to the application of the safeguard measure, shall notify the competent authorities of the other party of its intention to renew at least ninety (90) days before the expiry of its validity and provide evidence that causes leading to the adoption of the respective measure to initiate consultations, which shall be made in accordance with this article. The notification of the extension and compensation shall be implemented as provided for in this article before the expiry of the measures taken.
Chapter IX. Investment
Article 9.01. Definitions
For purposes of this chapter:
ICSID means International Centre for Settlement of Investment Disputes, established by the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, opened for signature at Washington on 18 March 1965;
Enterprise of a legal party means any person or any other entity constituted or organized under the law in force of either of the Parties, having its registered office in the territory of that Party, whether or not for profit and whether private or government owned companies, including their branches and with economic activities in the territory of a party, trusts, interests, sole proprietorship or business enterprise co-investments;
Investment means every kind of assets or rights of any kind defined in accordance with the laws of the host country, acquired or used for the purpose of obtaining an economic benefit or other business purposes, acquired with resources transferred to the territory of a party, or reinvested in it, by investors of another Party, provided that the investment has been made in accordance with the laws of the Party in whose territory they are undertaken, and shall include in particular though not exclusively:
Actions and other fees and any other form of participation in economic, at any rate, in companies constituted or organised under the law of the other party;
Credit rights or any other provision having an economic value directly related to investment;
Movable and immovable property as well as any other rights in rem, such as mortgages, liens and pledges usufructs;
Rights in the field of intellectual property in accordance with the domestic legislation of the respective parties;
Rights derived from concessions or similar rights conferred by law or under contract or other act in accordance with the domestic legislation of each country, to conduct economic activities or trade.
The definition of investment does not include:
A payment obligation or a credit granted by the State or a state enterprise;
Monetary claims derived exclusively from:
Commercial contracts for the sale of goods or services by an investor of a Party in the territory of that party to an investor in the territory of the other party; or
The granting of credit in connection with a commercial transaction, the expiry date is less than one year, such as trade financing;
An investor of a Party means a Party or businesses owned by the same means a national according to the legislation of each party or a corporation incorporated in a party who carry out the legal acts aimed at achieving an investment and is in the process of committing capital or, where appropriate, to conduct or has made an investment in the territory of another party;
Transfers means transfers and international payments as specified in Article 9.10.
Article 9.02. Scope and Extent of Obligations
1. This chapter applies to measures adopted or maintained by a Party relating to:
a) Investors of another party in all directly measures related to an investment; and
b) Investments of investors of a Party in the territory of the other party from the date of entry into force of this Treaty. However, it shall apply to investments made prior to its entry into force and application of the quality of foreign investment, pursuant to paragraph 2 (c) of this article.
2. This chapter shall not apply to:
a) Economic activities reserved for each Party according to its domestic legislation in force at the date of signing of this Treaty;
b) The measures taken by a party to restrict the participation of investments of investors of another party in its territory for reasons of national security or public order, the protection of cultural heritage and environmental and conservation of the environment; and
c) Claims or disputes arising prior to its Entry into Force, or related events which occurred prior to its entry into force, even if their effects are still thereafter.
Article 9.03. Minimum Standard of Treatment
Each Party shall ensure a treatment in accordance with international law, including fair and equitable treatment and shall enjoy full protection and security in its territory to investments of investors of the other party.
Each Party shall comply with the commitments they have entered into with regard to investments and in no way affect Arbitrary Measures or through discriminatory Arbitrary Measures the management, maintenance, use, enjoyment, acquisition, expansion or disposition of investments.
Article 9.04. National Treatment
Each Party shall accord to investors of another party directly related to their investments and to investments of investors of another party treatment no less favourable than that accorded to its own to investors and investments of such investors.
Article 9.05. Most Favoured Nation Treatment
Each Party shall accord to investors of another party directly related to their investments and to investments of investors of another party treatment no less favourable than that accorded to investors and to investments of investors of the other party or of a country that is not a party, except as provided in paragraph 2 of this article.
If a party has granted special treatment to investors or investments of such, from a country that is not a Party under agreements laying down provisions for the avoidance of double taxation, free trade area, customs union, common market, economic or monetary unions, that Party shall not be obliged to accord the treatment of investors or investments of the other party.
Article 9.06. Treatment In Case of Loss
Each Party shall accord to investors of another party, in respect of their investments to suffer losses in the territory of the Party where they are established, due to war, armed conflict or civil strife, a state of national emergency or other similar events, non-discriminatory treatment with respect to that accorded to its domestic investors or investors of any third State with respect to any measure adopted or maintained in connection with such losses.
Article 9.07. Performance Requirements
Parties may not impose, in relation to permit the establishment of an investment or acquisition, or enforce, under the rules of such investment, any performance requirements stipulated in the Agreement on Trade-related Investment of the WTO Agreement.
Article 9.08. Migration Status of Investors
1. Subject to its domestic law relating to the entry and sojourn of aliens, each Party shall permit the Entry and Sojourn in its territory to investors of the other party and persons contracted by them under posts of senior management or by virtue of their expertise, with the aim of establishing and administering or developing, advising on the operation of the investment, such investors in the commitment of capital or other resources.
In order to comply with this article, the Parties shall apply the provisions in chapter XI (temporary entry for business persons) of this Treaty.
Article 9.09. Senior Management and Boards of Directors
Neither party may require that an enterprise of a party, appoint individuals of any particular nationality to senior management positions, except as provided for in the legislation of each party.
Article 9.10. Transfers
1. Each Party shall permit all transfers relating to an investment of an investor of a Party in the territory of another party, be made freely and without delay, according to its domestic legislation.
Such transfers include:
a) Profits, dividends, interests, capital gains, royalties and other payments amounts derived from the investment;
b) Expenses for administration;
c) Amounts derived from the sale or the total or partial liquidation of the investment;
d) The additional contributions to capital for the maintenance or development of an investment;
e) Payments made under a contract which either party of an investor in relation to its investment including payments made pursuant to a loan agreement;
f) Resulting payments of compensation for expropriation; and
g) Payments arising out of the implementation of the provisions on dispute settlement mechanism under this Treaty.
2. Each Party shall permit transfers to be made in a freely convertible currency at the market rate of exchange prevailing on the date of transfer in accordance with the domestic legislation of each party.
3. Furthermore, each Party may, through the equitable and non-discriminatory application of its laws, seek information and establish requirements concerning reports of transfers of currency or other monetary instruments.
4. Notwithstanding the provisions of this article, the Parties may establish temporary controls on currency transactions, provided that the balance of payments of the Party concerned shall present a serious imbalance and incorporate a programme in accordance with internationally accepted standards. Restrictions adopted or maintained by a Party in accordance with this paragraph, as well as their elimination shall be notified promptly to the other party.
Article 9.11. Expropriation and Compensation
Investments of investors of a Party in the territory of another party, shall not be subjected to any expropriation or nationalization or any other measures having equivalent effect (hereinafter referred to as expropriation), unless the following conditions are met according to its domestic legislation:
Measures are taken for public purposes in accordance with the annex to this article;
Measures are not discriminatory; and
Measures are accompanied by prompt, effective and adequate compensation.
Compensation shall be equivalent to the fair price that had the expropriated investment immediately before the expropriation was taken before the measure or impending outside public knowledge, whichever comes first. The compensation shall include interest calculated from the date of dispossession of the expropriated property until the date of payment. These interest shall be calculated on the basis of a passive average rate of national banking system of the Party where the expropriation is made. Compensation shall be paid without delay in a freely convertible currency and shall be effectively realizable and freely transferable. The amount of compensation shall be determined as follows:
An expert opinion according to the national legislation of each of the Parties, which shall include all the information necessary for identifying the goods being valued;
In the case of buildings, the opinion shall contain the valuation regardless of the field, crops, buildings, tenant rights, leases, deposits, commercial rights and other assets or rights capable of compensation;
c) In the case of movable property, each will be assessed separately and shall specify the characteristics that affect their valuation;
d) The valuation shall take into account only the actual damages. It shall not be taken into account future developments and expectations of the law affecting good. It shall be recognized capital gains arising from the project which generates expropriation;
e) Any expert opinion shall indicate in a comprehensive and detailed manner, the elements underlying the value assigned to it and the methodology used.
Investor affected shall have a right, under the domestic law of the party making the expropriation, to prompt review by a judicial authority or another competent and independent authority of that party of its case to determine whether such expropriation and the valuation of its investment have been adopted in accordance with the principles set out in this article.
Nothing in this article shall affect the powers of the Government of a party decide to negotiate with the other party, or with third States, quantitative restrictions on exports or its authority to define the allocation of quotas negotiated through appropriate mechanisms and criteria as it deems appropriate, in accordance with multilateral disciplines.
Article 9.12. Special Formalities and Information Requirements
Nothing in Article 9.03 shall be construed to prevent a Party from adopting or maintaining a measure that determines special formalities connected with the establishment of investments by investors of the other party, such as that investments be constituted under the law of the Party provided that such formalities do not materially impair the protections afforded by a Party pursuant to this chapter.
Notwithstanding articles 9.03 9.04, and the parties may require an investor of the other party in connection with an investment in its territory to provide routine information concerning that investment or informational solely for statistical purposes. Such Party shall protect any confidential information that the disclosure that could prejudice the competitive position of the investor or the investment.
Each Party shall publish all kinds of laws, decrees and administrative regulations relating to investments.
Article 9.13. Relationship to other Chapters
For the purposes of this chapter, in the event of incompatibility between any of its provisions and the other chapter, the latter shall prevail to the extent of the inconsistency.
Article 9.14. Denial of Benefits
A Party, subject to prior notification and consultation with the other Party may deny the benefits of this chapter to an investor of another party that is of such an enterprise and party to such investments of investors of non- investor if a party are owners of the enterprise and that party has no substantial business activities in the territory of the party under whose law it is constituted or organized.
Article 9.15. Measures Related to the Environment
Each Party may adopt or maintain any implementing measure consistent with this chapter that it considers appropriate to ensure that investment activity in its territory observe the environmental legislation in that party.
Article 9.16. Investment Promotion and Exchange of Information
1. Each Party shall, subject to its general policy in the field of foreign investment, encourage and create favourable conditions for investments in its territory by investors of the other Contracting Party and shall admit in accordance with its legislation.
2. With the aim of increasing investment flows between the parties, the Parties shall develop documents on investment opportunities and will develop mechanisms for dissemination. In particular, each Party shall, at the request of any Party, to inform the latter on:
a) Investment opportunities in its territory that may be developed by investors of the other party;
b) Opportunities for strategic alliances between investors of the Parties; and
c) Opportunities based on their respective privatization or capitalization of public sector enterprises, to an investor interest of the other party.
3. Each Party shall notify the competent national authority or entity for the purposes of paragraph 2 of this article.
Article 9.17. Subrogation
1. Where a Party or an authorised agency has granted a contract of insurance or other form of financial guarantee against non-commercial risks with regard to an investment by one of its investors in the territory of the other, the latter party shall recognise the rights of the first party to the rights of subrogation of the investor, when it has made a payment under the contract or guarantee.
2. Where a Party has paid to its investor and has taken by its rights and benefits, the investor shall not claim such rights and benefits to the other party, except with the express authorization of the first party.
Article 9.18. Double Taxation
Parties, for the purpose of promoting investment within their respective territories through the removal of obstacles to fiscal nature and surveillance in tax compliance through the exchange of tax information, agree to start negotiations for the conclusion of agreements to avoid double taxation, in accordance with the timetable established between the competent authorities of the Parties.
Article 9.19. Specific Commitments
Investments that would have been the subject of a particular commitment by a Party to investors of the other party shall be managed, without prejudice to the provisions of this Treaty, by the terms of that commitment in the event that it includes provisions more favourable than those provided for by this Treaty.
Article 9.20. Settlement of Disputes between a Party and an Investor of the other Party
1. Disputes arising within the scope of this Treaty, between an investor and a party of the other Party that has made investments in the territory of the first, shall, as far as possible, be settled through amicable consultations.
2. If consultations fail to produce an solution within five (5) months from the date of request for settlement, the investor may submit the dispute to:
a) The competent courts of the Party in whose territory the investment was made; or
b) The arbitration a national of the Party in whose territory the investment has been made; or