2. The Parties agree to explore cooperation programs for a better application of this Chapter in terms of strengthening technical capacities, technological exchange, and related activities, such as laboratory diagnosis, sampling methods, control of pests and diseases, risk analysis, and control, inspection and approval activities.
Article 5.10. Committee on Sanitary and Phytosanitary Measures
1. The Parties hereby establish a Committee on Sanitary and Phytosanitary Measures (the “SPS Committee”), composed of government representatives of each Party.
2. The functions of the SPS Committee shall be:
(a) monitoring the implementation of this Chapter;
(b) coordinating technical cooperation activities mentioned in Article 5.9;
(c) facilitating technical consultations;
(d) identifying areas for enhanced cooperation, including giving favorable consideration to any specific proposal made by either Party;
(e) establishing a dialogue between competent authorities in accordance with the objectives of this Chapter;
(f) consulting on related issues prior to meetings of relevant international organisations, as appropriate; and
(g) carrying out other functions mutually agreed by the Parties.
3. The SPS Committee shall be co-chaired and meet once a year, except as otherwise agreed by the Parties. The SPS Committee meetings may be conducted by any agreed method on a case by case basis.
4. The SPS Committee may establish ad-hoc working groups to accomplish specific tasks.
Article 5.11. Contact Points and Competent Authorities
1. Each Party shall designate a Contact Point which shall have responsibility for coordinating the implementation of this Chapter. The contact points will be:
(a) for China, the Department of International Cooperation of the General Administration of Customs of the People‘s Republic of China or its successor; and
(b) for Nicaragua, the Ministry of Development, Industry and Trade (Ministerio de Fomento, Industria y Comercio (MIFIC)) and the Institute for Agricultural Protection and Health (Instituto de Protección y Sanidad Agropecuaria (IPSA)) or their successors.
2. For the purposes of this Chapter, the competent authorities on Sanitary and Phytosanitary Measures are:
(a) for China, the General Administration of Customs or its successor; and
(b) for Nicaragua, the Institute for Agricultural Protection and Health (Instituto de Protección y Sanidad Agropecuaria (IPSA) or its successor.
Chapter 6. TECHNICAL BARRIERS TO TRADE
Article 6.1. Objectives
The objectives of this Chapter are to:
(a) facilitate and promote trade in goods between the Parties by ensuring that standards, technical regulations, and conformity assessment procedures do not create unnecessary technical barriers to trade;
(b) strengthen cooperation, including information exchange in relation to the preparation, adoption and application of standards, technical regulations, and conformity assessment procedures;
(c) promote mutual understanding of the Parties’ standards, technical regulations, and conformity assessment procedures; and
(d) facilitate implementation of the principles of the Agreement on Technical Barriers to Trade (hereinafter referred to as the “TBT Agreement”), contained in Annex 1A to the WTO Agreement.
Article 6.2. Scope
This Chapter shall apply to all national standards, technical regulations, and conformity assessment procedures of the Parties that may, directly or indirectly, affect trade in goods between the Parties. It shall exclude:
(a) the SPS measures which are covered in Chapter 5 (Sanitary and Phytosanitary Measures); and
(b) purchasing specifications prepared by governmental bodies for production or consumption requirements are not subject to the provisions of this Agreement but are addressed in the Agreement on Government Procurement, according to its coverage.
Article 6.3. General Provision
Except as otherwise provided for in this Chapter, the TBT Agreement shall apply between the Parties and is hereby incorporated into and form an integral part of this Agreement, mutatis mutandis.
Article 6.4. International Standards
1. Where standards, technical regulations or conformity assessment procedures are required, and relevant international standards exist or are about to be developed, the Parties shall use relevant international standards or the relevant parts of them as a basis for their standards, technical regulations or relevant conformity assessment procedures, except where such international standards or relevant parts are invalid or inappropriate for achieving the legitimate objectives of the Parties.
2. For the purpose of this Chapter, standards issued by the International Organization for Standardization (ISO), the International Electrotechnical Commission (IEC), the International Telecommunication Union (ITU) and Codex Alimentarius Commission (CAC) shall be considered as relevant international standards in the sense of the TBT Agreement.
Article 6.5. Technical Regulations
Each Party shall give positive consideration to accepting as equivalent technical regulations of the other Party, even if these regulations differ from their own, provided that they are satisfied that these regulations adequately fulfil the objectives of their own regulations.
Article 6.6. Conformity Assessment Procedures
1. The Parties, with a view to increasing efficiency and ensuring cost effectiveness of conformity assessment, shall enhance cooperation in information exchange of each other’s conformity assessment system through bilateral visits, technical training and seminars, etc.
2. When cooperating in the area of conformity assessment, the Parties shall take into consideration their participation in relevant international organizations.
3. In case that a compulsory conformity assessment procedure is required, upon request of one Party, the other Party undertakes to provide in English the list of products which are subject to these procedures.
Article 6.7. Measures at the Border
Where a Party detains, at a port of entry, goods exported from the other Party due to a perceived failure to comply with a technical regulation or a conformity assessment procedure, the reasons for the detention shall be promptly notified to the importer or his or her representative. Official measures taken in relation to such goods shall be proportionate to the risk associated with such goods.
Article 6.8. Transparency and Information Exchange
1. The Parties affirm their commitment to ensuring that information regarding proposed new or amended technical regulations, conformity assessment procedures or standards is made available in accordance with the Article 2.9, Article 5.6, and Annex 3 of the TBT Agreement.
2. A Party shall make available the full text of its notified technical regulations and conformity assessment procedures to the requesting Party within 15 working days of receiving the written request. English version shall prevail if available.
3. Each Party shall allow at least 60 days following the notification of its proposed technical regulations and conformity assessment procedures to WTO for the other Party to present comments except where risks to health, safety, and the environment arising or threatening to arise warrant urgent actions.
4. A Party may request information from the other Party on a matter arising under this Chapter. The requested Party shall endeavour to provide available information to the requesting Party within 30 days of the request.
5. The Parties agree to shall give favorable consideration to conduct meetings between the competent authorities of each Party to improve understanding regarding the requirements that apply to specific products. These meetings may be performed virtually or by any method agreed on a case-by-case basis.
Article 6.9. Technical Consultations
1. Where a Party considers that a standard, relevant technical regulation or conformity assessment procedure of the other Party has constituted unnecessary obstacles to its exports, it may request technical consultations. The requested Party shall respond as early as possible to such a request.
2. The requested Party shall enter into technical consultations within a period mutually agreed, with a view to reaching a solution. Technical consultations may be conducted via any means mutually agreed by the Parties.
Article 6.10. Cooperation
1. With a view to increasing mutual understanding of their respective systems and facilitating bilateral trade, the Parties shall strengthen their technical cooperation in the following areas:
(a) communication between competent authorities of the Parties;
(b) exchange of information in respect of standards, technical regulations, conformity assessment procedures, and good regulatory practices;
(c) encouraging, where possible, cooperation between standardization, metrology and conformity assessment bodies of the Parties including training programmes, workshops, technical assistance programs and related activities;
(d) cooperation in areas of mutual interest in the work of relevant regional and international bodies relating to the development and application of standards and conformity assessment procedures;
(e) related activities in General Vocabulary defined in ISO/IEC Guide 2; and
(f) other areas mutually agreed by the Parties.
Article 6.11. Contact Point
1. Each Party shall designate a Contact Point which shall, for that Party, has the responsibility for coordinating the implementation of this Chapter. The Contact Points will be:
(a) for China, the State Administration for Market Regulation or its successor; and
(b) for Nicaragua, the Ministry of Development, Industry and Trade (Ministerio de Fomento, Industria y Comercio (MIFIC)) or its successor.
2. A Party shall provide the other Party with the contact details of the relevant officials in their respective Contact Points, including telephone, facsimile, email, and any other relevant details.
3. A Party shall notify the other Party promptly of any change in its Contact Points or any amendment to the details of the relevant officials acting as or on behalf of its Contact Point.
Article 6.12. Definitions
For the purposes of this Chapter, the terms and definitions, set out in Annex 1 to the TBT Agreement shall apply.
Chapter 7. TRADE REMEDIES
Section A. Bilateral Safeguard Measures
Article 7.1. Application of a Bilateral Safeguard Measure
1. During the transition period only, if as a result of the reduction or elimination of a customs duty provided under this Agreement, any product originating in a Party is being imported into the territory of the other Party in such increased quantities, in absolute terms or relative to domestic production, and under such conditions as to cause or threaten to cause serious injury to domestic industry producing a like or directly competitive product, the importing Party may apply a bilateral safeguard measure described in paragraph 2.
2. If the conditions in paragraph 1 are met, a Party may:
(a) suspend the further reduction of any rate of customs duty on the product provided for under this Agreement; or
(b) increase the rate of customs duty on the product to a level not exceeding the lesser of:
(i) the most-favored-nation (hereinafter referred to as “MFN”) applied rate of customs duty in effect on the product on the day immediately preceding the date of entry into force of this Agreement (3); or
(ii) the MFN applied rate of customs duty in effect on the product on the date on which the measure is applied.
Article 7.2. Scope and Duration of Bilateral Safeguard Measures
1. Neither Party may apply or maintain a bilateral safeguard measure:
(a) except to the extent and for such time as may be necessary to prevent or remedy serious injury, and to facilitate adjustment; or
(b) for a period exceeding two years, except that the period may be extended by up to one year, if the competent authorities determine, in conformity with the procedures set out in Section A, that the bilateral safeguard measure continues to be necessary to prevent or remedy serious injury and to facilitate adjustment and that there is evidence that the domestic industry is adjusting.
(c) without prejudice of subparagraph (a) and (b), regardless of its duration, such measure shall terminate at the end of the transition period.
2. In order to facilitate adjustment in a situation where the bilateral safeguard measure is extended, the Party extending the measure shall liberalise at regular intervals.
3. Neither Party may apply a safeguard measure more than once on the same product.
4. On the termination of a bilateral safeguard measure, the Party that applied the bilateral safeguard measure shall apply the rate of customs duty set out in its schedule to Annex 2-A (Schedule of Tariff Commitments) of this Agreement on the date of termination as if the bilateral safeguard measure has never been applied.
Article 7.3. Investigation Procedures
Bilateral safeguard measure shall only be taken upon clear evidence that increased imports have caused or are threatening to cause serious injury pursuant to an investigation by a competent authority of the Parties and in accordance with the related procedures laid down in the Agreement on Safeguards.
Article 7.4. Provisional Measure
1. In critical circumstances where delay would cause damage which it would be difficult to repair, a Party may take a provisional safeguard measure pursuant to a preliminary determination that there is clear evidence that increased imports have caused or are threatening to cause serious injury to a domestic industry.
2. Before taking a provisional measure, the applying Party shall notify the other Party and shall, on request of the other Party, initiate consultations after applying such a measure.
3. The duration of a provisional safeguard measure shall not exceed 200 days, during which period the pertinent requirement of Article 7.1, 7.2 and 7.3 shall be met. Such a provisional safeguard measure should take the form of a suspension of the further reduction of any rate of customs duty provided for under this Agreement on the product or an increase in the duties not exceeding the lesser of the rates in Article 7.1.2 (b). Any additional duties or guarantees collected shall be promptly refunded if the subsequent investigation referred to in Article 7.3 determines that increased imports have not caused or threatened to cause serious injury to a domestic industry.
4. The duration of any such provisional safeguard measure shall be counted as a part of the initial period and any extension of bilateral safeguard measure.
Article 7.5. Notification and Consultation
1. A Party shall immediately notify the other Party, in writing on:
(a) initiating a bilateral safeguard investigation;
(b) making a finding of serious injury or threat thereof caused by increased imports;
(c) taking a decision to apply or extend a bilateral safeguard measure; and
(d) taking a decision to liberalise a bilateral safeguard measure previously applied, in accordance with Article 7.2.2.
2. In making the notification referred to in subparagraphs 1 (b) and 1 (c), the Party applying a bilateral safeguard measure shall provide the other Party with all pertinent information, which shall include evidence of serious injury or threat thereof caused by increased imports, a precise description of the product involved, the proposed bilateral safeguard measure, the proposed date of introduction and its expected duration. In the case of an extension of a bilateral safeguard measure, the written results of the determination required by Article 7.3, including evidence that the continued application of the measure is necessary to prevent or remedy serious injury and that the domestic industry is adjusting shall also be provided.
3. A Party proposing to apply or extend a bilateral safeguard measure shall provide adequate opportunity for prior consultations with the other Party, with a view to, inter alia, reviewing the information provided under paragraph 2 of this Article, exchanging views on the bilateral safeguard measure and, in the case of extending a transitional safeguard measure reaching an agreement on compensation as set forth in Article 7.6.1.
4. A Party shall provide to the other Party a copy of the publicly available version of the report of its competent authorities in accordance with the Agreement on Safeguards as soon as it is available.
Article 7.6. Compensation
1. A Party extending a bilateral safeguard measure shall, in consultation with the other Party, provide to the other Party mutually agreed compensation in the form of concessions having substantially equivalent trade effects or equivalent to the value of the additional duties expected to result from the measure. Such consultations shall begin within 30 days of the extension of the bilateral safeguard measure.
2. If the Parties are unable to reach an agreement on compensation within 30 days after the consultation commences, the exporting Party shall be free to suspend the application of substantially equivalent concessions to the trade of the Party extending the bilateral safeguard measure.
3. A Party shall notify the other Party in writing at least 30 days before suspending concession under paragraph 2.
4. The applying Party’s obligation to provide compensation under paragraph 1 and the other Party’s right to suspend concessions under paragraph 2 shall terminate on the date of the termination of the bilateral safeguard measure.
Article 7.7. Procedural Rules
For the application of bilateral safeguard measures, the competent authority shall comply with the provisions of this Section and in cases not covered by this Section, the competent authority may apply national procedural rules that are consistent with the Agreement on Safeguards.
Section B. Global Safeguards Measures
Article 7.8. General Provisions
1. Each Party retains its rights and obligations under Article XIX of the GATT 1994 and the Agreement on Safeguards.
2. Neither Party may apply, with respect to the same good, during the same period:
(a) a bilateral safeguard measure pursuant to Article 7.1; and
(b) a measure under Article XIX of the GATT 1994 and the Agreement on Safeguards.
Section C. Antidumping and Countervailing Duties
Article 7.9. General Provisions
1. Except as otherwise provided by paragraph 3, each Party retains its rights and obligations under the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, contained in Annex 1A to the WTO Agreement.
2. Each Party retains its rights and obligations under the Agreement on Subsidies and Countervailing Measures, contained in Annex 1A to the WTO Agreement.
3. Neither Party shall use a methodology based on surrogate value of a third country for the purpose of determining normal value when calculating dumping nmargin in an anti-dumping investigation.
Article 7.10. Non-Application of Dispute Settlement
No Party shall have recourse to dispute settlement for any issue arising from or relating to Section B and C of this Chapter.
Section D. Definitions
Article 7.11. Definitions
For the purposes of this Chapter:
bilateral safeguard measure means a measure described in Article 7.1;
competent authority means:
for China, the Ministry of Commerce (MOFCOM) or its successor; and
for Nicaragua, the Directorate for the Implementation and Negotiation of Trade Agreements of the Ministry of Development, Industry and Commerce (Dirección de Aplicación y Negociación de Acuerdos Comerciales del Ministerio de Fomento, Industria y Comercio (MIFIC)) or its successor;
domestic industry means, with respect to an imported good, the aggregate of
producers of a like or directly competitive good operating in the territory of a Party, or those whose collective output of the like or directly competitive good constitutes a major proportion of the total domestic production of that good;
global safeguard measure means a measure applied under Article XIX of GATT 1994 and the Agreement on Safeguards;
serious injury means a significant overall impairment of the position of a domestic industry;
threat of serious injury means the clear imminence of serious injury based on facts and not merely on allegation, conjecture or remote possibility; and
transition period means the ten-year period following the date this Agreement
enters into force, except that for any good for which the Schedule to Annex 2-A (Schedule of Tariff Commitments) of the Party applying the safeguard measure provides for the Party to eliminate its tariffs on the good over a period of more than ten years, transition period means the tariff elimination period for the good set out in that Schedule.
Chapter 8. CROSS-BORDER TRADE IN SERVICES
Article 8.1. Scope
1. This Chapter applies to measures adopted or maintained by a Party affecting cross-border trade in services by service suppliers of the other Party. Such measures include measures in respect of:
(a) the production, distribution, marketing, sale, and delivery of a service;
(b) the purchase or use of, or payment for, a service;
(c) the access to and use of distribution, transport, or telecommunications networks and services in connection with the supply of a service;
(d) the presence in its territory of a service supplier of the other Party; and
(e) the provision of a bond or other form of financial security as a condition for the supply of a service.
2. Notwithstanding paragraph 1, Articles 8.4, 8.7, and 8.8 shall also apply to measures adopted or maintained by a Party affecting the supply of a service in its territory by a covered investment (4).
3. This Chapter shall not apply to:
(a) services supplied in the exercise of governmental authority;
(b) government procurement;
(c) subsidies or grants provided by a Party, including government-supported loans, guarantees, and insurance;