(a) all the licensing criteria, and the amount of time normally required to reach a decision concerning an application for a license; and
(b) the terms and conditions for individual licenses.
2. The decision on the application for a license will be made within a reasonable period of time, and in the event of a denial of a license, the reasons will be made known to the applicant upon request.
Article 11.4. Conduct of Major Suppliers
Competitive Safeguards
1. Each Party shall maintain appropriate measures to prevent suppliers that, alone or together, are a major supplier from engaging in or continuing anti-competitive practices.
2. The anti-competitive practices referred to in paragraph 1 above must include in particular:
(a) engaging in anti-competitive cross-subsidisation;
(b) using information obtained from competitors with anti-competitive results; and
(c) not making available to other service suppliers, on a timely basis, technical information about essential facilities and commercially relevant information that is necessary for those suppliers to provide services.
Interconnection
3. Each Party shall ensure that a major supplier provides interconnection:
(a) at any technically feasible point in the network;
(b) under non-discriminatory terms, conditions, including technical standards and specifications, and rates;
(c) of a quality no less favourable than that provided for its own like services or for like services of non-affiliated service suppliers or of its subsidiaries or other affiliates;
(d) in a timely fashion, on terms, conditions (including technical standards and specifications), and cost-oriented rates that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the supplier need not pay for network components or facilities that it does not require for the services to be provided; and
(e) on request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities.
4. Each Party shall make the procedure applicable for interconnection to a major supplier publicly available.
5. Each Party shall ensure that a major supplier makes publicly available either its interconnection agreements or reference interconnection offer.
Article 11.5. Universal Service
Each Party has the right to define the kind of universal service obligation it wishes to maintain. Such obligation is not anti-competitive per se, provided that it is administered in a transparent, non-discriminatory, and competitively neutral manner and is not more burdensome than necessary for the kind of universal service defined by the Party.
Article 11.6. Allocation and Use of Scarce Resources
1. Each Party shall administer its procedures for the allocation and use of scarce resources, including frequencies, numbers, and rights of way, in an objective, timely, transparent, and non-discriminatory manner.
2. Each Party shall make the current state of allocated frequency bands publicly available but shall not be required to provide detailed identification of frequencies allocated for specific government use.
3. Notwithstanding Article 9.4 (Market Access), each Party retains the right to establish and apply its spectrum and frequency management policies, which may limit the number of suppliers of public telecommunications transport services. Each Party also retains the right to allocate frequency bands based on present and future needs.
Article 11.7. Regulatory Body
1. Each Party shall ensure that its regulatory body is separate from, and not accountable to, a supplier of public telecommunications transport networks or services and value-added services. 2. Each Party shall ensure that its regulatory body's decisions and procedures are impartial with respect to all market participants.
Article 11.8. Enforcement
Each Party shall maintain appropriate procedures and authority to enforce domestic measures relating to the obligations under this Chapter. Those procedures and authority must include the ability to impose appropriate sanctions, which may include financial penalties, corrective orders, or the modification, suspension, or revocation of licences.
Article 11.9. Resolution of Domestic Telecommunication Disputes
Recourse
1. Further to Article 19.3 (Administrative Proceedings), each Party shall ensure that:
(a) suppliers of public telecommunications transport networks or services or value-added services of the other Party have timely recourse to its regulatory body to resolve disputes regarding domestic measures relating to matters covered in Articles 11.2 and 11.4 excluding interconnection; and
(b) suppliers of public telecommunications transport networks or services of the other Party requesting interconnection with a major supplier in the Party's territory have, within a reasonable and publicly specified amount of time, recourse to a regulatory body to resolve disputes regarding the appropriate terms, conditions, and rates for interconnection with that major supplier.
Reconsideration
2. Each Party shall ensure that any supplier of public telecommunications transport networks or services or value added services that is aggrieved by the determination or decision of a regulatory body may petition that body to reconsider that determination or decision. This petition shall not constitute grounds for non-compliance with the determination or decision of the regulatory body.
3. Reconsideration shall not apply to a determination or decision of a regulatory body with respect to:
(a) disputes between service suppliers or between service suppliers and users; or
(b) the establishment and application of spectrum and frequency management policies. Judicial Review
4. Each Party shall ensure that any supplier of public telecommunications transport networks or services that is aggrieved by the determination or decision of a regulatory body has the opportunity to appeal that determination or decision to an independent judicial or administrative authority. This obligation does not add to the obligations set out in Article 19.4 (Review and Appeal).
Article 11.10. Transparency
In addition to the other provisions in this Chapter relating to transparency, each Party shall make publicly available:
(a) its measures relating to public telecommunications transport networks or services and value added services, including:
(i) tariffs and other terms and conditions of service;
(ii) specifications of technical interfaces;
(iii) conditions applying to attachment of terminal or other equipment to public telecommunications transport networks; and
(iv) notification, permit, registration, or licensing requirements, if any; and
(b) information on bodies responsible for preparing, amending, and adopting standards related measures.
Article 11.11. Forbearance
The Parties recognise the importance of relying on market forces to achieve wide choices in the supply of telecommunications services. To this end, and to the extent provided in its domestic law, each Party may refrain from applying a regulation to a service when:
(a) enforcement of the regulation is not necessary to prevent unreasonable or discriminatory practices;
(b) enforcement of the regulation is not necessary to protect consumers; and
(c) it is consistent with the public interest, including promoting and enhancing competition between suppliers of public telecommunications transport networks and services.
Article 11.12. Conditions for the Provision of Value-added Services
1. A Party shall not require a person that provides value-added services to:
(a) supply those services to the public generally;
(b) cost-justify its rates;
(c) file a tariff;
(d) connect its networks with a particular customer or network; or
(e) conform with a particular standard or technical regulation for connecting to another network, other than a public telecommunications transport network.
2. Notwithstanding paragraph 1, a Party may take the actions listed in paragraph 1 to remedy a practice of a supplier of value-added services that the Party has found in a particular case to be anti-competitive under its domestic law, or to otherwise promote competition or safeguard the interests of consumers.
Article 11.13. Relation to other Chapters
In the event of an inconsistency between this Chapter and another Chapter, this Chapter prevails to the extent of the inconsistency.
Article 11.14. Relation to International Organisations and Agreements
The Parties recognise the importance of international standards for global compatibility and interoperability of telecommunication networks or services and undertake to promote those standards through the work of relevant international bodies, including the International Telecommunication Union and the International Organization for Standardization.
Article 11.15. Definitions
For the purposes of this Chapter: enterprise means an "enterprise" as defined in Article 1.8 (Definitions of General Application) and a branch of an enterprise;
essential facilities means facilities of a public telecommunications transport network or service that:
(a) are exclusively or predominantly provided by a single or a limited number of suppliers; and
(b) cannot feasibly be economically or technically substituted in order to supply a service;
interconnection means linking suppliers providing public telecommunications transport services to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier;
intra-corporate communications means telecommunications through which an enterprise communicates within the enterprise or with or among its subsidiaries, branches and, subject to a Party's domestic law, affiliates, but does not include commercial or non-commercial services that are provided to enterprises that are not related subsidiaries, branches or affiliates, or that are offered to customers or potential customers. For the purposes of this definition, subsidiaries, branches and, where applicable, affiliates are as defined by each Party in its domestic law;
major supplier means a supplier that has the ability to materially affect the terms of participation having regard to price and supply in the relevant market for public telecommunications transport networks or services as a result of:
(a) control over essential facilities; or
(b) the use of its position in the market; network termination points means the final demarcation of the public telecommunications transport network at the user's premises;
non-discriminatory means terms and conditions no less favourable than those accorded to any other user of like public telecommunications transport networks or services under like circumstances;
public telecommunications transport network means the public telecommunications infrastructure that permits telecommunications between and among defined network termination points;
public telecommunications transport service means a telecommunications transport service that a Party requires, explicitly or in effect, to be offered to the public generally that involves the real-time transmission of customer-supplied information between two or more points without any end-to-end change in the form or content of the customer's information. This service may include, inter alia, telegraph, telephone, telex, and data transmission;
regulatory body means the body responsible for the regulation of telecommunications;
service supplier means a person of a Party that is seeking to supply or supplies a service, including a supplier of telecommunications networks or services;
supply of a service means the provision of a service:
(a) from the territory of a Party into the territory of the other Party;
(b) in the territory of a Party by a person of that Party to a person of the other Party;
(c) in the territory of a Party by a covered investment as defined in Chapter Eight (Investment), in that territory; or
(d) by a national of a Party in the territory of the other Party; telecommunication means the transmission and reception of signals by any electromagnetic means;
user means a service consumer or a service supplier; and
value-added services mean services that add value to the customer's information by enhancing its form or content, or by providing for its storage and retrieval.
Chapter Twelve. Temporary Entry for Business Persons
Article 12.1. General Principles
This Chapter reflects the preferential trading relationship between the Parties, the desirability of facilitating temporary entry on a reciprocal basis and of establishing transparent criteria and procedures for temporary entry, and the need to ensure border security and to protect the domestic labour force and permanent employment in their respective territories.
Article 12.2. General Obligations
1. Each Party shall apply its measures relating to this Chapter in accordance with Article 12.1 and, in particular, shall apply expeditiously those measures so as to avoid unduly impairing or delaying trade in goods or services or conduct of investment activities under this Agreement.
2. This Chapter does not prevent a Party from applying measures to regulate the entry of natural persons into, or the temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across its borders, provided that such measures are not applied in such a manner as to unduly impair or delay trade in goods or services or the conduct of activities under this Agreement. The sole fact of requiring a visa, or other document authorising entry or work for a business person, or for natural persons shall not be regarded as unduly impairing or delaying trade in goods or services or the conduct of activities under this Agreement.
Article 12.3. Grant of Temporary Entry
1. Each Party shall grant temporary entry to business persons who otherwise comply with existing immigration measures related to public health, safety and national security applicable to temporary entry, in accordance with this Chapter, including Annex 12-A.
2. A Party may refuse to issue a work permit or authorisation to a business person if the temporary entry of that person might affect adversely:
(a) the settlement of a labour dispute that is in progress at the place or intended place of employment; or
(b) the employment of a person who is involved in such dispute.
3. If a Party refuses pursuant to paragraph 2 to issue a work permit or authorisation, it shall inform in writing the business person of the reasons for the refusal.
4. Each Party shall limit fees for processing applications for temporary entry of business persons to the approximate cost of services rendered.
Article 12.4. Provision of Information
1. Recognising the importance to the Parties of transparency of information on temporary entry and further to Article 19.1 (Publication), each Party shall, after the date of entry into force of this Agreement, make available through any means, information on its measures relating to this Chapter.
2. Each Party shall collect and maintain data respecting the granting of temporary entry under this Chapter to business persons of the other Party who have been issued a work permit or authorisation. On the request of a Party, the other Party shall make such information available to the other Party in accordance with its domestic law.
Article 12.5. Contact Points
1. Each Party hereby establishes a contact point:
(a) for Canada: Director Temporary Resident Policy Immigration Branch Citizenship and Immigration Canada; and
(b) for Korea: Director Border Control Division Korea Immigration Service Ministry of Justice, or their respective successors.
2. The contact points shall meet at least once each year, unless otherwise agreed, to exchange information as described in Article 12.4 and to consider matters pertaining to this Chapter, such as:
(a) the implementation and administration of this Chapter;
(b) the development and adoption of common criteria, definitions and interpretations for the implementation of this Chapter;
(c) the development of measures to further facilitate temporary entry of business persons on a reciprocal basis; and
(d) proposed modifications to this Chapter.
Article 12.6. Dispute Settlement
1. A Party shall not initiate proceedings under Chapter Twenty-One (Dispute Settlement) regarding a refusal to grant temporary entry under this Chapter unless:
(a) the matter involves a pattern of practice; and
(b) the business person has exhausted the normal administrative remedies regarding the particular matter.
2. The remedies referred to in paragraph 1(b) are deemed to be exhausted if a final determination in the matter has not been issued by the competent authority within one year of the initiation of an administrative proceeding, and the failure to issue a determination is not attributable to delay caused by the business person.
Article 12.7. Relation to other Chapters
Except for this Chapter and Chapters One (Initial Provisions and General Definitions), Nineteen (Transparency), Twenty (Institutional Provisions and Administration) and Twenty-Three (Final Provisions), this Agreement does not impose an obligation on a Party regarding its immigration measures.
Article 12.8. Definitions
For the purposes of this Chapter:
business person means a national of a Party who is engaged in trade in goods, the provision of services or the conduct of investment activities;
contract service supplier means an employee of an enterprise who is engaged in the supply of a contracted service as an employee of an enterprise. That enterprise has a service contract from an enterprise of the other Party, who is the final consumer of the service which is supplied. The contract and duration of stay shall comply with the domestic law of the other Party;
independent professional means a self-employed professional who seeks to engage, as part of a service contract granted by an enterprise or a service consumer of the other Party, in an activity at a professional level, provided that the person possesses the necessary education, or satisfies accreditation or licensing requirements as stipulated for the profession;
management trainee on professional development means an employee who has a Bachelor or Baccalaureate degree or who has a license at a professional level concerning the intra-company activity, who is on a temporary work assignment intended to broaden an employee's knowledge of and experience in a company in preparation for a senior leadership position within the company;
pre-arranged professional service means a professional service to be provided in the territory of the other Party, the terms of which have been determined and documented prior to the entry of the professional into the territory of the other Party;
professional means a national of a Party who is engaged in a specialty occupation as stated in Appendix 12-A-2 who is not engaged in the field of education; and
temporary entry means entry into the territory of a Party by a business person of the other Party without the intent to establish permanent residence, and does not apply to measures regarding citizenship or employment on a permanent basis.
Chapter Thirteen. Electronic Commerce
Article 13.1. Scope of Application
1. The Parties confirm that trade conducted by electronic means is subject to the provisions of this Agreement, including those in Chapters Two (National Treatment and Market Access for Goods), Nine (Cross-Border Trade in Services), Ten (Financial Services), Eleven (Telecommunications), and Fourteen (Government Procurement). In particular, the Parties recognise the importance of Article 11.2 (Access to and Use of Public Telecommunications Transport Networks and Services) in enabling trade conducted by electronic means.
2. The Parties also confirm that this Chapter does not impose obligations on a Party to allow digital products to be delivered electronically, except in accordance with the commitments of that Party in other Chapters.
Article 13.2. General Provisions
1. The Parties recognise the economic growth and opportunities provided by electronic commerce and the applicability of WTO rules to electronic commerce.
2. Considering the potential of electronic commerce as a social and economic development tool, the Parties recognise the importance of:
(a) clarity, transparency, and predictability in their domestic regulatory frameworks in facilitating, to the maximum extent possible, the development of electronic commerce;
(b) encouraging self-regulation by the private sector to promote trust and confidence in electronic commerce, having regard to the interests of users, through initiatives such as industry guidelines, model contracts, and codes of conduct;
(c) facilitating electronic commerce through interoperability, innovation, and competition;
(d) ensuring that global and domestic electronic commerce policy takes into account the interest of all stakeholders, including business, consumers, non-government organisations, and relevant public institutions; and
(e) facilitating the use of electronic commerce of small-and medium-sized enterprises and developing countries.
3. Each Party shall endeavour to adopt measures to facilitate trade conducted by electronic means by addressing issues relevant to the electronic environment.
4. The Parties recognise the importance of avoiding unnecessary barriers to trade conducted by electronic means. Having regard to national policy objectives, each Party shall endeavour to prevent measures that: (a) unduly hinder trade conducted by electronic means; or (b) have the effect of treating trade conducted by electronic means more restrictively than trade conducted by other means.
Article 13.3. Customs Duties
1. A Party shall not apply customs duties, fees, or charges on or in connection with digital products delivered electronically.
2. For greater certainty, this Chapter does not preclude a Party from imposing internal taxes or other internal charges on digital products delivered electronically, provided that such taxes or charges are imposed in a manner consistent with this Agreement.
Article 13.4. Protection of Personal Information
Each Party shall adopt or maintain measures for the protection of the personal information of the users of electronic commerce. In the development of personal information protection standards, each Party shall take into account international standards of relevant international organisations.
Article 13.5. Paperless Trade Administration
1. Each Party shall endeavour to make trade administration documents available to the public in electronic form.
2. Each Party shall endeavour to accept trade administration documents submitted electronically as the legal equivalent of the paper version of those documents.