c) the Parties shall make every effort to reach a mutually satisfactory solution.
Article 8.12. Exchange of Information
1. Any information or explanation that is provided upon request by a Party, in accordance with the provisions of this Chapter, shall be provided in printed or electronic form within a reasonable period. The Party shall endeavor to respond to each request within 60 days.
2. With respect to the exchange of information, in accordance with the following paragraphs 1 and 3 of Article 10 of the TBT Agreement, the Parties should apply the recommendations under the sections Handling of requests for information and requests for information that the competent services should be prepared to respond contained in the document "Decisions and Recommendations adopted by the WTO Committee on Technical Barriers to Trade since 1 January 1995", G/TBT/1/Rev.9, dated 8 September 2008 and its successive revisions.
Chapter IX. UNFAIR INTERNATIONAL TRADE PRACTICES
Article 9.1. Definitions
For the purposes of this Chapter, the following definitions shall apply:
Antidumping Agreement: the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, which is part of the WTO Agreement;
Subsidies Agreement: the Agreement on Subsidies and Countervailing Measures, which is part of the WTO Agreement;
investigating authority: the authority of the Party that has the authority to conduct and rule on a dumping or subsidy investigation:
a) in the case of Mexico, the Ministry of Economy or its successor; and
b) in the case of Peru, the Commission for the Control of Dumping and Subsidies of the National Institute for the Defense of Competition and Protection of Intellectual Property (INDECOPI) or its successor;
injury: material injury to a domestic industry, threat of material injury to a domestic industry, or material retardation of the establishment of such an industry;
domestic legislation on antidumping and countervailing duties: the laws, regulations and administrative rules of a Party relating to the application of antidumping and countervailing duties;
official dissemination bodies:
a) in the case of Mexico, the Diario Oficial de la Federaci6n; and
b) in the case of Peru, the Official Gazette El Peruano.
Article 9.2. General Principles
The Parties recognize the need to eliminate export subsidies not permitted by the WTO and reject any unfair international trade practices and other domestic policies that distort trade between the Parties.
Article 9.3. Export Subsidies
No Party may grant or maintain export subsidies for products into the territory of the other Party, provided for in Article 3.1 of the Subsidies Agreement.
Article 9.4. Procedures
1. Without prejudice to the provisions of this Chapter, with respect to investigation procedures for the application of antidumping or countervailing duties, the Parties agree to apply the provisions contained in the Antidumping Agreement and the Subsidies Agreement, according to their domestic legislation on antidumping and countervailing duties.
2. Notwithstanding the provisions of the preceding paragraph, the Parties shall promptly publish determinations of initiation; those imposing provisional or definitive antidumping and countervailing duties; those modifying the antidumping and countervailing duties imposed; those declaring the investigation terminated, for whatever reason, including the withdrawal of the petitioners once the investigation has been initiated; and those issued as a result of a price undertaking. The Parties shall publish the aforementioned resolutions in their official publication organs and on their Internet pages.
3. The notification of initiation shall be sent to the known exporters and the investigating authority of the other Party with a copy of the respective resolution; the public version of the application for the initiation of the investigation and its annexes; the questionnaires to be used by the investigating authority or, if applicable, the minimum information required by the latter; and the description of the form in which it shall be submitted.
4. Likewise, the Parties shall publish on their respective websites their determinations or reports, as the case may be, indicating the methodology used by the investigating authority to determine the margin of dumping or the amount of the subsidy; the injury arguments; and the causal relationship between the dumped or subsidized imports and the alleged injury.
Article 9.5. Technical Information Meetings
1. Upon written request of any accredited interested party, the investigating authority will hold technical information meetings, in order to explain the methodology used in the determinations of the preliminary and/or final determinations.
2. The investigating authority shall hold the meeting within 15 working days from the publication of the respective resolution.
3. In the technical information meetings, the investigating authority shall duly protect confidential information. The accredited interested parties shall have the right to obtain the spreadsheets and computer files, if any, that the investigating authority has used to make its determinations, provided that they are public information provided by any interested party.
4. The technical information meetings shall not affect the deadlines established in the processes for challenging the resolutions contemplated in the domestic legislation of each Party.
Article 9.6. Accreditation of Personality of Interested Parties
1. The Parties shall allow the interested parties to accredit their representatives through powers of attorney issued in accordance with the requirements contemplated in their domestic legislation. For this purpose, the interested parties may submit the powers of attorney with the corresponding apostille or consular legalization or, alternatively, copies of the powers of attorney duly certified by the investigating authority of the other Party, which shall verify that the content of such documents coincides with that of the originals, prior to their submission to the investigating authority. The presentation of certified copies of the powers of attorney by the investigating authority replaces the apostille or consular legalization of the powers of attorney.
2. No later than 3 months after the entry into force of the Agreement, the Parties shall notify each other in writing of the particulars (name, title, signature, among others) of the officials responsible for certifying the documents. Any change shall be notified to the other Party immediately.
Article 9.7. Hearings
In antidumping or subsidy investigations, the accredited interested parties shall be given the opportunity to participate in a public hearing convened by the investigating authority for the purpose of presenting the arguments they consider pertinent. The date of the public hearing shall be notified to the accredited interested parties atleast 14 days in advance.
Article 9.8. Imposition of Anti-dumping Duties
1. When any of the Parties decides to impose an anti-dumping duty, this shall be lower than the margin of dumping found, provided that such lower duty is adequate to eliminate the injury to the domestic industry. For this purpose, the authorities shall compare the import prices of the dumped product and the non- injurious price to the domestic industry calculated based on the methodologies described below:
a) Import price of the investigated product, corresponding to those exporters or producers of the same country of origin for which it has been determined that they did not practice dumping.
b) Weighted average import price of the investigated product from the rest of the countries that supply the domestic market.
c) Price of the domestic industry in a comparable period with the investigated one that is within the injury analysis period.
d) Costs of production of the like product produced by the domestic industry, plus expenses and a reasonable profit margin.
2. The investigating authority shall justify the use of the methodology applied.
3. If the non-injurious price is higher than the import price plus the corresponding dumping margin, the amount of the anti-dumping duty shall be equal to the dumping margin.
Article 9.9. Establishment of Countervailing Duties
1. When any of the Parties decides to impose a countervailing duty, it shall be less than the amount of the subsidy found, provided that such lesser duty is adequate to remove the injury to the domestic industry. For this purpose, the authorities shall compare the import prices of the subsidized product and the price not injurious to the domestic industry calculated on the basis of the methodologies described below:
a) Import price of the investigated product, corresponding to those exporters or producers of the same country of origin for which it has been determined that they did not benefit from the subsidy.
b) Weighted average import price of the investigated product from the rest of the countries that supply the domestic market.
c) Price of the domestic industry in a comparable period with the investigated one that is within the injury analysis period.
d) Costs of production of the like product produced by the domestic industry, plus expenses and a reasonable profit margin.
2. The investigating authority shall justify the use of the methodology applied.
3. If the non-injurious price is higher than the import price plus the amount of the corresponding subsidy, the amount of the countervailing duty shall be equal to the amount of the subsidy.
Article 9.10. Minimum Margins and Volumes
1. The Party shall immediately terminate antidumping investigation proceedings when the margin of dumping is less than 5 percent expressed as a percentage of the FOB export price.
2. The Party shall terminate the investigation immediately if the volume of total imports of the investigated product from the other Party represents less than 5 percent of the total imports or when they represent less than 2 percent of the domestic market of the investigated product.
Article 9.11. Duration and Extent of Anti-dumping Duties
1. Definitive anti-dumping duties shall be terminated no later than 5 years from the date of their imposition unless the authorities have determined, in a review carried out on the basis of a duly substantiated request made by or on behalf of the domestic industry, that the expiry of such duty would be likely to lead to recurrence or continuation of dumping and injury.
2. In no case shall the term of the duties be extended more than once. Once the term has been extended, the Party may not apply a new antidumping duty with respect to the same product until at least 12 months have elapsed since the expiration of the term of the definitive duty.
Article 9.12. Duration and Extent of Countervailing Duties
1. Definitive countervailing duties shall be terminated no later than five years from the date of their imposition unless the authorities have determined, in a review carried out on the basis of a duly substantiated petition made by or on behalf of the domestic industry, that subsidization is continuing and that the expiry of such duty would be likely to lead to continuation or recurrence of injury.
2. In no case shall the term of the duties be extended more than once. Once the term has been extended, the Party may not apply a new countervailing duty with respect to the same product until at least 12 months after the expiration of the term of the definitive countervailing duty.
Article 9.13. Price Commitments
1. Proceedings may be (1) suspended or terminated without the imposition of provisional or definitive anti-dumping or countervailing duties if the exporter or government concerned gives notice that it voluntarily undertakes satisfactory undertakings (2) to revise its prices or to cease exports at dumped or subsidized prices, so that the investigating authority is satisfied that the injurious effect of the unfair international trade practice is eliminated. The price increases stipulated in such undertakings shall not be higher than necessary to offset the margin of dumping or the amount of subsidy determined for such exporter. It is desirable that the price increases be less than the margin of dumping or the amount of the subsidy, if such increases are sufficient to remove the injury to the domestic industry.
2. Price undertakings shall not be sought or accepted from exporters or the government concerned, except where the investigating authority of the importing Party has made a preliminary affirmative determination of dumping or subsidization and of injury caused by such dumping or subsidization. Prior to the issuance of such a determination, the investigating authority shall inform the exporters or the government concerned of their right to offer price undertakings.
3. The acceptance or rejection of a price undertaking shall be based on its own merits. The investigating authority shall provide the exporter or the government concerned with the reasons which have led it to consider the acceptance of an undertaking inappropriate, and shall give the exporter an opportunity to comment thereon and to reformulate its proposal on a one-time basis.
4. In the case of the dumping modality, the investigating authority may not require as a condition for its acceptance that the undertaking be presented by all exporters, by a majority or by a determined group of exporters. Likewise, it shall not be a justifiable reason for rejecting the undertakings offered if the number of actual or potential exporters is too large or for reasons of general policy.
5. In the event of a breach of an undertaking, the investigating authority of the importing country shall notify the exporter concerned or the government concerned and give it an opportunity to comment and correct any errors or deficiencies. If information satisfactory to the investigating authority is not submitted, the investigating authority may take prompt action, which may consist of the immediate application of provisional duties on the basis of the best information available. In such cases, definitive anti-dumping or countervailing duties may be levied on products declared for consumption not more than 90 days prior to the application of the provisional duties imposed as a result of the breach, except that such retroactivity shall not apply to imports declared prior to the breach of the undertaking.
Article 9.14. Reimbursement or Elimination of Antidumping and Countervailing Duties
1. Where the final determination is not to impose antidumping or countervailing duties, any cash payment or deposit shall be promptly refunded with interest and/or any security shall be released upon request.
2. When the final determination is to impose a definitive antidumping or countervailing duty, and this is less than the provisional duty, any provisional duty overcharged shall be refunded, upon request, with interest, or the excess security shall be released, as appropriate.
3. When an antidumping or countervailing duty is eliminated pursuant to the decision of a domestic challenge mechanism, it shall proceed in accordance with the domestic law of each Party, promptly, upon request, to refund with interest any payment or cash deposit and/or to release any security submitted.
4. When the duty is diminished in compliance with the decision of a national challenge mechanism, any amount paid or deposited in excess will be refunded with interest and/or the guarantees presented will be released, upon request of the party.
Article 9.15. Cooperation
The Parties recognize the importance of cooperation and coordination between their respective investigating authorities to achieve the effective implementation of the Antidumping Agreement and the Subsidies Agreement, as well as their respective domestic antidumping and countervailing duty laws. Accordingly, the Parties shall cooperate on matters relating to the implementation of the aforementioned rules, including the possibility of consulting and exchanging information, except confidential information, related to the implementation of the Party's domestic antidumping and countervailing duty legislation.
Article 9.16. Working Group
1. The Parties shall establish a working group composed of representatives of each Party. 2. The working group shall seek to promote greater understanding, communication and cooperation between the Parties in relation to the matters covered by this Chapter, in particular with a view to complying with Article 9.15.
3. Two years after the entry into force of this Agreement, the working group shall report on the status of its progress to the Commission, and may make appropriate recommendations for the proper implementation of this Chapter.
Article 9.17. Multilateral Negotiations
The Parties express their willingness to work, to the extent possible, jointly in multilateral fora, including the WTO, with a view to clarifying and improving disciplines relating to the application of antidumping and countervailing duties, with the objective of minimizing their potential to hinder or impede international trade.
Article 9.18. Settlement of Disputes
Disputes arising between the Parties with respect to the application of this Chapter shall be resolved in accordance with the provisions of Chapter XV (Dispute Settlement). However, the Parties reserve the right to resort to the dispute settlement procedures provided for in the Understanding on Rules and Procedures Governing the Settlement of Disputes of the WTO.
Chapter X. CROSS-BORDER TRADE IN SERVICES
Article 10.1. Definitions
For the purposes of this Chapter, the following definitions shall apply:
cross-border trade in services or cross-border supply of services: the supply of a service:
a) from the territory of one Party to 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; or
c) by a national of a Party in the territory of the other Party;
but does not include the supply of a service in the territory of a Party for an investment as defined in Chapter 11 (Investment);
service supplier of a Party: a person of that Party that intends to supply or does supply a service (1); and
professional services: services which for their supply require specialized higher education (2) or equivalent education or training (3), or experience and the exercise of which is authorized or restricted by a Party, but does not include services supplied by persons engaged in a trade or to crew members of merchant ships and aircraft.
Article 10.2. Scope of Application
1. This Chapter applies to measures adopted or maintained by a Party affecting cross-border trade in services supplied by service suppliers of the other Party. Such measures include measures affecting:
a) the production, distribution, marketing, sale and supply of a service;
b) the acquisition or use of, or payment for, a service;
c) access to and use of distribution systems, transport or telecommunication networks and services related to 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 guarantee as a condition for the provision of a service.
2. For the purposes of this Chapter, "measures adopted or maintained by a Party" means measures adopted or maintained by:
a) federal or national, state or regional, or municipal or local governments and authorities; and
b) non-governmental institutions in the exercise of the powers delegated to them by federal or national, state or regional, or municipal or local authorities or governments.
3. This Chapter does not apply to:
a) public procurement;
b) traffic rights and to services directly related to the exercise of traffic rights, except:
i) aircraft repair and maintenance services while the aircraft is out of service;
ii) the sale and marketing of air transportation services; and
iii) computerized reservation system (CRS) services; and
c) financial services as defined in Article 12.1 (Definitions).
4. Articles 10.6 and 10.9 shall apply to measures of a Party affecting the supply of a service in its territory by an investment (4) as defined in Chapter 11 (Investment).
5. This Chapter does not impose any obligation on a Party with respect to a national of the other Party seeking to enter its labor market or to have permanent employment in its territory, or to confer any rights on such national with respect to such access or employment.
6. This Chapter does not apply to services supplied in the exercise of governmental authority in the territory of a Party. A "service supplied in the exercise of governmental authority" means any service supplied neither on a commercial basis, nor in competition with 1 or more service suppliers.
Article 10.3. Subsidies
1. The Parties shall periodically exchange information on all existing or future government-supported subsidies or grants, including tax exemptions or rebates and government-supported loans, guarantees and insurance related to trade in services that they provide to their domestic service suppliers. The first exchange shall take place no later than 1 year after the entry into force of this Agreement.
2. If the results of the negotiations related to paragraph 1 of Article XV of the GATS (or the results of any similar negotiations undertaken in other multilateral fora in which both Parties participate) enter into force for each Party, this Article shall be amended, as appropriate, after consultations between the Parties, so that those results become an integral part of this Agreement.
Article 10.4. National Treatment
1. Each Party shall accord to service suppliers of the other Party treatment no less favorable than that it accords, in like circumstances, to its service suppliers.
2. Treatment accorded by a Party under paragraph 1 means, with respect to a state or regional government, treatment no less favorable than the most favorable treatment accorded, in like circumstances, by that state or regional government to service suppliers of the Party of which it is a constituent part.
Article 10.5. Most Favored Nation Treatment
Each Party shall accord to service suppliers of the other Party treatment no less favorable than that it accords, in like circumstances, to service suppliers of a non- Party.
Article 10.6. Market Access
1. In sectors where each Party has undertaken market access commitments under its Schedule to Annex Ill (Market Access), no Party may adopt or maintain, either on the basis of of a state or regional subdivision or its entire territory, unless otherwise specified in its Schedule, measures that:
a) impose limitations on:
i) the number of service providers, either in the form of numerical quotas, monopolies, exclusive service providers or by requiring an economic needs test;
ii) the total value of transactions or service assets in the form of numerical quotas or by requiring an economic needs test;
iii) the total number of service operations or the total amount of service output, expressed in designated numerical units, in the form of quotas or the requirement of an economic needs test;5 or
iv) the total number of nationals that may be employed in a given service sector or that a service provider may employ and that are necessary for the supply of a specific service and are directly related to it, in the form of numerical quotas or the requirement of an economic needs test; or
b) restrict or prescribe the specific types of legal entity or joint venture through which a service supplier may supply a service.
Article 10.7. Local Presence
No Party may require the service supplier of the other Party to establish or maintain representative offices or any other form of enterprise, or to be resident, in its territory as a condition for the cross-border supply of a service.
Article 10.8. Nonconforming Measures
1. Articles 10.4, 10.5 and 10.7 do not apply to:
a) any existing non-conforming measure maintained by a Party:
i) at the federal or national level, as stipulated in its Annex I List (Non-Conforming Measures); (5) This paragraph does not cover measures of a Party that limit inputs for the supply of services.
ii) at the state or regional level, for 6 months after the entry into force of this Agreement and thereafter, as a Party may indicate in its Schedule to Annex I (Nonconforming Measures), in accordance with paragraph 2; or
iii) at the municipal or local level;
b) the continuation or prompt renewal of any nonconforming measure referred to in subsection (a); or
c) the modification of any nonconforming measure referred to in subparagraph (a) to the extent that such modification does not diminish the degree of conformity of the measure, as in effect immediately before the modification, with Articles 10.4, 10.5 or 10.7.
2. Each Party shall have up to 6 months from the entry into force of this Agreement to indicate in its Schedule to Annex I (Nonconforming Measures) any existing nonconforming measure maintained by a state or region referred to in paragraph 1(a)(ii) and shall be incorporated within that period into this Agreement by a decision adopted by the Commission pursuant to Article 17.2(b)(viii) (Functions of the Administrative Commission).
3. Articles 10.4, 10.5 and 10.7 do not apply to any measures that a Party adopts or maintains with respect to sectors, sub-sectors or activities, as set out in its Schedule to Annex II (Future Measures).
Article 10.9. National Regulations
1. Where a Party requires authorization for the supply of a service, the competent authorities of the Party shall, within a reasonable time after the submission of an application considered complete under its laws and regulations, inform the applicant of the decision on the application. At the request of the applicant, the competent authorities of the Party shall, without undue delay, provide information concerning the status of the application.
2. In order to ensure that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, the measures that each Party adopts or maintains:
a) will be based on objective and transparent criteria, such as competence and ability to provide the service;