(ii) For Australia, a person who meets the requirements for a dependent or dependent child as defined in the Migration Regulations 1994.
(ii) For Chile, a family member who lives with the business person, including the parents, children and the concubine.
(e) executive means a national who primarily directs the management of an enterprise, exercises wide latitude in decision making, and receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the enterprise. An executive would not directly perform tasks related to the actual provision of the service or the operation of the enterprise.
(h) granting Party means a Party who receives an application for temporary entry from a national of the other Party who is covered by Article 13.2.
(g) immigration formality means a visa, employment pass, or other document or electronic authority granting a national of one Party the right:
(i) in the case of business visitors, to enter and visit the granting Party;
(ii) in the case of executives and their accompanying spouses, intra- corporate transferees and their accompanying spouses and contractual service suppliers and their accompanying spouses, to enter, reside and work in the granting Party; or
(iii) in the case of dependents of executives, intra-corporate transferees and contractual service suppliers, to enter and reside in the territory of the granting Party.
(h) immigration measure means a measure affecting the entry and sojourn of aliens.
(i) intra-corporate transferee means an employee of an enterprise of a Party established in the territory of the other Party through a branch, subsidiary or affiliate which is lawfully and actively operating in that Party, who is transferred by that enterprise to fill a position in the branch, subsidiary or affiliate of the enterprise in the granting Party, and who is:
(i) a manager which means a national who will be responsible for the entire or a substantial part of the operations of the enterprise in the granting Party, receiving general supervision or direction principally from higher level executives, the board of directors or stockholders of the enterprise, including directing the enterprise or a department or subdivision of it; supervising and controlling the work of other supervisory, professional or managerial employees; and having the authority to establish goals and policies of the department or subdivision of the enterprise; or
(ii) a specialist which means a national with advanced trade, technical or professional skills. The person seeking entry must be assessed as having the necessary qualifications or alternative credentials accepted as meeting the granting Party's domestic standards for the relevant occupation.
For the purposes of qualifying under this category, a national seeking temporary entry under the present category, shall present (13-2)
(A) proof of nationality of a Party;
(B) documentation demonstrating that the business person will be so engaged and describing the purpose of entry; and
(C) documentation demonstrating the attainment of the relevant minimum educational requirements or alternative credentials.
(j) spouse means:
(i) For Australia, a person who meets the requirements for a spousal relationship as defined in the Migration Regulations 1994.
(ii) For Chile, a person who meets the requirements for a spousal relationship under Chilean domestic laws and regulations.
(k) 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.
Article 13.2. Scope and Coverage
1. This Chapter shall apply to measures affecting the movement of nationals of a Party into the territory of the other Party where such persons are:
(a) business visitors;
(b) contractual service suppliers;
(c) executives of a business headquartered in a Party, establishing a branch or subsidiary of that business in the other Party; or
(d) intra-corporate transferees.
2. This Chapter does not apply to measures affecting nationals seeking access to the employment market of a Party, nor shall it apply to measures regarding citizenship, nationality, permanent residence, or employment on a permanent basis.
Article 13.3. General Obligations
1. Each Party shall apply expeditiously its measures relating to the provisions of this Chapter so as to avoid unduly impairing or delaying trade in goods or services or conduct of investment activities under this Agreement.
2. Nothing in this Agreement shall prevent a Party from applying measures to regulate the entry of nationals of the other Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of nationals across, its borders provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to the other Party under the terms of this Chapter and Chapter 9 (Cross-Border Trade in Services).
3. The sole fact of requiring nationals to meet eligibility requirements prior to entry to a Party shall not be regarded as nullifying or impairing the benefits accruing to the other Party under this Chapter and Chapter 9 (Cross-Border Trade in Services).
4. Any measure regarding temporary entry of business persons adopted and maintained by a Party at its own initiative or as a result of an agreement between the Parties, that provides for more liberal access for and/or treatment of business persons covered by this Chapter, shall be accorded to business persons covered by this Chapter. However, with respect to such measures adopted or maintained by a Party at its own initiative, any more liberal access and/or treatment under such measures shall only be accorded for so long as the measures are in place.
Article 13.4. Grant of Temporary Entry
1. Each Party shall grant temporary entry to business persons, including spouses and dependents of intra-corporate transferees, who are otherwise qualified for entry under applicable measures including those relating to public health and safety and national security, in accordance with this Chapter, including the provisions of Annex 13-A.
2. Each Party shall ensure that fees charged by its competent authorities on applications for an immigration formality do not constitute an unjustifiable impediment to the movement of nationals under this Chapter.
3. The temporary entry granted by virtue of this Chapter does not replace the requirements needed to carry out a profession or activity according to the specific laws and regulations in force in the territory of the Party authorising the temporary entry.
Article 13.5. Provision of Information
1. Each Party shall:
(a) make publicly available explanatory material on all relevant measures which pertain to or affect the operation of this Chapter, including any new or changed measures;
(b) no later than six months after the date of entry into force of this Agreement provide the other Party with a consolidated document describing the requirements for temporary entry under this Chapter in such a manner as will enable business persons of the other Party to become acquainted with them; and
(c) maintain appropriate mechanisms to respond to inquiries from the other Party, and interested persons of the other Party, regarding measures affecting the temporary entry and temporary stay of nationals of the other Party.
2. Each Party shall collect and maintain, and make available upon request to the other Party in accordance with its domestic law, data respecting the granting of temporary entry under this Chapter to business persons of the other Party who have been issued immigration documents.
Article 13.6. Consultations
1. The Parties agree to consult on any issue raised by a Party that relates to this Chapter. Such consultations may include:
(a) consideration of suggestions to further facilitate temporary entry of business persons;
(b) consideration of the development of common criteria and interpretations for the implementation of this Chapter; and
(c) any concerns regarding a refusal to grant temporary entry under this Chapter.
2. Consultations shall include officials from the Parties' immigration authorities.
Article 13.7. Dispute Settlement
1. A Party may not initiate proceedings under Chapter 21 (Dispute Settlement) regarding a refusal to grant temporary entry under this Chapter or a particular case arising under Article 13.3 unless:
(a) the matter involves a pattern of practice;
(b) the business person has exhausted the available domestic remedies regarding the particular matter; and
(c) the Parties have undertaken consultations in accordance with Article 13.6.
2. The remedies referred to in paragraph 1(b) shall be deemed to be exhausted where there is undue delay in the remedial process which is attributable to the Party in which the process is undertaken.
Article 13.8. Relation to other Chapters
1. Except for this Chapter, Chapters 1 (Initial Provisions), 2 (General Definitions), 20 (Institutional Arrangements), 21 (Dispute Settlement), and 23 (Final Provisions), no provision of this Agreement shall impose any obligation on a Party regarding its immigration measures.
2. Nothing in this Chapter shall be construed to impose obligations or commitments with respect to other Chapters of this Agreement.
Article 13.9. Application of Regulations
1. To the extent possible, each Party shall, on request, provide to interested persons a concise statement addressing comments received on proposed and existing regulations relating to the temporary entry of business persons.
2. Where an application for an immigration formality is required by a Party, the Party shall process expeditiously complete applications for immigration formalities received from nationals of the other Party covered by Article 13.2, including further immigration formality requests.
3. Each Party shall upon request, and within a reasonable period after a complete application by a national covered by Article 13.2 requesting temporary entry is lodged, notify the applicant of:
(a) receipt of the application;
(b) the status of the application; and
(c) the decision concerning the application, including, if approved, the period of stay and other conditions; or if refused, the reasons for refusal and any avenues for merits review.
Annex 13-A. Temporary entry for business persons
In the case of Chile:
(a) Business persons who enter Chile under any of the categories set out in Article 13.2, including spouses and dependants of intra-corporate transferees, shall be deemed to be engaged in activities which are in the country's interest.
(b) Business persons who enter Chile under any of the categories set out in Article 13.2 and are issued a temporary visa shall have that temporary visa extended for subsequent periods provided the conditions on which it is based remain in effect, without requiring that person to apply for permanent residence.
(c) When a national:
(i) has been granted the right to temporary entry under Article 13.4 for longer than 12 months; and
(ii) has a spouse;
Chile shall, upon application by an accompanying spouse of a national of Australia who meets Chile's criteria for the grant of an immigration formality, grant that accompanying spouse the right of temporary entry, stay, work and movement, for an equal period to that of the national.
(d) Business persons who enter Chile may also obtain an identity card for foreigners.
In the case of Australia:
For the purposes of this Section of the Annex:
service seller means a national who is a sales representative of a service supplier of that Party who is seeking temporary entry to the other Party for the purpose of negotiating, or entering into, agreements for the sale of services for that service supplier, where such a representative will not be engaged in making direct sales to the general public or in supplying services directly.
Short Term Temporary Entry
(a) Australia shall, upon application by a business visitor of Chile who meets Australia's criteria for the grant of an immigration formality, grant that business visitor, through a single immigration formality, the right of temporary entry to, and stay and movement in, Australia, consistent with the purpose of the visit, for a period of up to 90 days. A business visitor of Chile who is a service seller may stay for a period of up to 12 months.
Long Term Temporary Entry
(b) Australia shall, upon application by a contractual service supplier, an executive or an intra-corporate transferee, who is a national of Chile who meets Australia's criteria for the grant of an immigration formality, grant that person, through a single immigration formality, the right of temporary entry to, and stay, work and movement in, Australia. These rights shall be granted for an initial period of time, sufficient to supply relevant services and consistent with the purpose of the visit, for:
(i) an intra-corporate transferee, who meets the definition of an intra-corporate transferee and who is a manager, for a period of up to four years, with the possibility of further stay;
(ii) an intra-corporate transferee, who meets the definition of an intra-corporate transferee and who is a specialist, for a period of up to two years, with the possibility of further stay; and
(iii) a contractual service supplier for a period of up to one year, with the possibility of further stay.
(c) When a national:
(i) has been granted the right to temporary entry under Article 13.4 for longer than 12 months; and
(ii) has a spouse;
Australia shall, upon application by an accompanying spouse of a national of Chile who meets Australia's criteria for the grant of an immigration formality, grant that accompanying spouse the right of temporary entry, stay, work and movement, for an equal period to that of the national.
Chapter 14. Competition Policy
Article 14.1. Definitions
For the purposes of this Chapter:
(a) competition authority means:
(i) for Australia, the Australian Competition and Consumer Commission (ACCC) or its successor; and
(ii) for Chile, the Fiscalia Nacional Económica or its successor;
(b) competition law means:
(i) for Australia, the Trade Practices Act 1974 (excluding Part X) and any regulations, made under that Act, as well as any amendments thereto; and
(ii) for Chile, Decree Law No. 211 of 1973 and any implementing regulations, as well as any amendments thereto;
(c) anticompetitive activity means public or private business conduct or transactions that adversely affect competition, such as:
(i) anticompetitive horizontal arrangements between competitors;
(ii) anticompetitive unilateral conduct;
(ii) anticompetitive vertical arrangements; and
(iv) anticompetitive mergers and acquisitions;
(d) enforcement activity means any application of competition law by way of investigation or proceeding conducted by a Party, but shall not include research, studies or surveys with the objective of examining the general economic situation or general conditions in specific industries. Such research, studies or surveys shall not be construed so as to include any investigation with regard to suspected violation of competition law;
(e) enterprise with special or exclusive rights means an enterprise to which a Party has granted special or exclusive rights in its purchases or sales involving either imports or exports;
(f) designate means, whether formally or in effect, to establish, designate, or authorise a monopoly or to expand the scope of a monopoly to cover an additional good or service;
(g) monopoly means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant;
(h) non-discriminatory treatment means the better of national treatment and most-favoured-nation treatment, as set out in the relevant provisions of this Agreement; and
(i) in accordance with commercial considerations means consistent with normal business practices of privately-held enterprises in the relevant business or industry.
Article 14.2. Objectives
1. Recognising that anticompetitive practices have the potential to restrict bilateral trade and investment, the Parties believe that proscribing anticompetitive activities and implementing policies that promote economic efficiency and consumer welfare will help secure the benefits of this Agreement.
2. With a view to preventing distortions or restrictions of competition which may affect trade in goods or services between them, the Parties shall give particular attention to anticompetitive activities.
3. The Parties agree, within their existing domestic legal frameworks, to coordinate on the implementation of competition laws. This will include notification, consultation and exchange of non-confidential information.
4. The Parties acknowledge the importance of contributing to the development of best practice in the area of competition policy in global and plurilateral fora.
Article 14.3. Competition Law and Anticompetitive Activities
1. Each Party shall maintain or adopt measures consistent with its domestic law to proscribe anticompetitive activities and take appropriate action with respect thereto, recognising that such measures will help realise the objectives of this Agreement. Each Party shall ensure that a person subject to the imposition of a sanction or remedy for violation of such measures is provided with the opportunity to be heard and to present evidence, and to seek review of such sanction or remedy in a court or independent tribunal of that Party.
2. Each Party shall ensure that all businesses operating in its territory are subject to its competition laws. Parties may exempt businesses or sectors from the application of competition laws, provided that such exemptions are transparent and are undertaken on the grounds of public policy or public interest. Where a Party considers such an exemption might adversely affect its interests, it may seek consultations pursuant to Article 14.7.
3. Each Party shall maintain an authority or authorities responsible for the enforcement of its national competition laws. In enforcing its competition laws, each Party's competition authority will treat nationals of the other Party no less favourably than it treats its own nationals in like circumstances.
4. The Parties recognise the importance of effective competition law enforcement in the free trade area. To this end, the Parties shall cooperate, on mutually agreed terms, on the enforcement of competition laws.
Article 14.4. Enterprises with Special or Exclusive Rights, Including Designated Monopolies
1. Nothing in this Chapter shall be construed to prevent a Party from granting to an enterprise special or exclusive rights or designating a monopoly provided that this is done in accordance with the Party's domestic law.
2. Recognising that enterprises with special or exclusive rights, including designated monopolies, should not operate in a manner that creates obstacles to trade and investment, each Party shall ensure that any enterprise with special or exclusive tights, including any privately or publicly designated monopoly:
(a) acts solely in accordance with commercial considerations in its exercise of special or exclusive rights including, where applicable, the purchase or sale of the monopoly good or service in the relevant market, including with regard to price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale, except to comply with any terms of its grant or designation that are not inconsistent with subparagraph (b) or (c);
(b) provides non-discriminatory treatment to covered investments, to goods of the other Party, and to service suppliers of the other Party in its exercise of special or exclusive rights including, where applicable, the purchase or sale of the monopoly good or service in the relevant market;
(c) does not use its special or exclusive rights including, where applicable, its monopoly position to engage, either directly or indirectly, including through its dealings with its parent, subsidiaries, or other enterprises with common ownership, in anticompetitive practices in a non-monopolised market in its territory, where such practices adversely affect covered investments; and
(d) acts in a manner that is not inconsistent with the Party's obligations under this Agreement wherever such an enterprise with special or exclusive rights or designated monopoly exercises any regulatory, administrative or other governmental authority that the Party has delegated to it in connection with the exercise of special or exclusive rights including, where applicable, the monopoly good or service, such as the power to grant import or export licences, approve commercial transactions, or impose quotas, fees or other charges.
3. This Article does not apply to government procurement.
4. Where a Party grants to an enterprise special or exclusive rights or designates a monopoly and it determines that the grant or designation may affect the interests of the other Party, the Party shall endeavour to:
(a) at the time of the grant or designation introduce such conditions on the exercise of special or exclusive rights including, where applicable, the operation of the monopoly so as to minimise any adverse affect on the other Party, as communicated by that Party, under Article 14.7; and
(b) provide written notification, in advance wherever possible, to the other Party of the grant or designation.
Article 14.5. State Enterprises
1. Nothing in this Chapter shall be construed to prevent a Party from establishing or maintaining a state enterprise, provided that this is done in accordance with the Party's domestic law.
2. Each Party shall ensure that any state enterprise that it establishes or maintains acts in a manner that is not inconsistent with the Party's obligations under this Agreement wherever such enterprise exercises any regulatory, administrative or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant licences, approve commercial transactions, or impose quotas, fees or other charges.
3. Each Party shall ensure that any state enterprise that it establishes or maintains accords non-discriminatory treatment in the sale of its goods or services.
4. Each Party shall take reasonable measures to ensure it does not provide any competitive advantage to any government-owned business simply because it is government owned. This Article applies to the business activities of government- owned businesses and not to their non-business, non-commercial activities.
Article 14.6. Notifications
1. Each Party, through its competition authority, but subject to its laws and regulations, shall notify the competition authority of the other Party of an enforcement activity where it determines that the enforcement activity:
(a) is liable to substantially affect the other Party's important interests;
(b) relates to restrictions on competition which are liable to have a direct and substantial effect in the territory of the other Party; or
(c) concerns anticompetitive acts taking place principally in the territory of the other Party.
2. Provided that it is not contrary to the Parties' competition laws and does not affect any investigation being carried out, notifications shall take place at an early stage of the procedure.
3. The notifications provided for in paragraph 1 should include sufficient detail to permit the other Party to evaluate its interests.
4. The Parties undertake to ensure that notifications are made in the circumstances set out above, taking into account the administrative resources available to them.
Article 14.7. Consultations
1. If the competition authority of a Party considers that an investigation or proceeding being conducted by the competition authority of the other Party may adversely affect its important interests it may transmit its views on the matter to the other Party's competition authority.
2. A Party, through its competition authority, may request consultations regarding the issues addressed in paragraph 1 as well as any other matter covered by this Chapter. The requesting Party shall indicate the reasons for the request and whether any procedural time limit or other constraints require that consultations be expedited. Such consultations shall be without prejudice to the right of a Party so consulted to take any measure under its competition laws it deems appropriate.
Article 14.8. Exchange of Information, Transparency and Confidentiality
1. With a view to facilitating the effective application of their respective competition laws, the competition authorities may exchange information.
2. With the objective of making their competition policies as transparent as possible, each Party shall ensure that its laws, regulations and procedures addressing competition shall be in writing and shall be published or otherwise made publicly available.
3. On the request of a Party, the other Party shall endeavour to make available public information concerning:
(a) the enforcement of its measures proscribing anticompetitive activities;