1. Within 10 days following the presentation of the report, either Party may submit a written request to the panel for clarification of any item that the Party considers requires further explanation or definition. The panel shall respond to the request within 10 days following the submission of such request.
2. The submission of the request for clarification will not postpone the deadline for compliance with the panel report, unless the panel otherwise decides.
Article 23.15. Suspension and Termination of Procedure
1. The Parties may agree to suspend the work of the panel at any time for a period not exceeding 12 months following the date of such agreement. If the work of the panel has been suspended for more than 12 months, the authority of the panel shall lapse, unless the Parties otherwise agree. If the authority of the panel lapses, and the Parties have not reached an agreement on the settlement of the dispute, nothing in this Chapter shall prevent a Party from requesting a new proceeding regarding the same matter.
2. The Parties may agree to terminate the panel procedures at any time by jointly notifying the chair of the panel on this respect.
Article 23.16. Implementation of the Report
1. The panel report shall be final and binding unless the Parties otherwise agree.
2. If the report determines that the measure is not conforming to the obligations under this Agreement, the Party complained against shall eliminate the non-conformity.
3. The Parties shall agree on the means to resolve the dispute and on a reasonable period of time to implement them, which normally shall conform to the recommendations of the panel, within 15 days following the receipt of the report of the panel. If the Parties fail to agree on the means to resolve the dispute, the Party complained against shall comply with the recommendations of the panel. If the Parties fail to agree on the reasonable period of time to implement the means, the Party complained against shall comply with the period established in the report.
Article 23.17. Non-implementation and Compensation
1. If the Party complained against fails to implement the means to resolve the dispute or does not comply with the recommendations of the panel within the reasonable period of time agreed by the Parties or established in the panel report, the Party complained against shall enter into negotiations with the complaining Party with a view to establishing a mutually acceptable compensation. The Parties shall initiate negotiations within 10 days following the date of the receipt of the written request for negotiations.
2. The compensation referred to in paragraph 1 shall be effective as of the moment the Parties agree to it and until the Party complained against complies with the panel report.
Article 23.18. Examination of Implementation
1. Without prejudice to the procedures set out in Article 23.17, once the reasonable period of time agreed by the Parties or established in the panel report has expired, and there is disagreement between the Parties as to the existence or consistency of the measures taken to comply with the determinations and recommendations of the panel, either Party may request the Agreement Coordinators referred to in Article 22.2 (Agreement Coordinators – Contact Points) to convene the original panel to refer the matter to it.
2. The panel shall convene no later than 15 days following the date of the receipt of the request and shall issue its report on the matter within 30 days following its first meeting.
3. Where possible, the panel shall comprise the same panelists as in the original panel. If not possible, the procedure established in Article 23.8 shall be applied, in which event the respective periods set out therein shall be reduced by half.
Article 23.19. Suspension of Benefits
1. If the Parties:
(a) are unable to agree on compensation within 30 days after the period for developing such compensation has begun; or
(b) have agreed on compensation and the complaining Party considers that the Party complained against has failed to observe the terms of the agreement within 20 days following such agreement, the complaining Party may, at any time thereafter, communicate in writing to the Party complained against its intention to suspend the application of benefits. The communication shall specify the level of benefits that the complaining Party proposes to suspend.
2. The complaining Party may initiate the suspension of benefits 30 days following the later date between the date of the communication in accordance with paragraph 1 and the date when the panel issued its report in accordance with Article 23.18.
3. The level of benefits to be suspended shall have an equivalent effect to the adverse trade effect caused by the Party complained against.
4. In considering what benefits to suspend in accordance with paragraph 1:
(a) the complaining Party should first seek to suspend benefits in the same sector or sectors as that or those affected by the measure; and
(b) if the complaining Party considers that it is not practicable or effective to suspend benefits in the same sector or sectors, it may suspend benefits in other sectors.
5. Any suspension of benefits shall be restricted to benefits granted to the Party complained against under this Agreement.
6. The suspension of benefits shall be temporary and may only be applied until such time as the measure found to be inconsistent with this Agreement has been removed, or a mutually satisfactory solution is reached. If the panel established under Article 23.18 decides that the Party complained against has eliminated the non-conformity, the complaining Party shall promptly reinstate any benefits that it had suspended in accordance with this Article.
Article 23.20. Examination of the Level of Suspension of Benefits
1. If the Party complained against considers that the level of benefits suspended or proposed to be suspended is excessive, it may request the Agreement Coordinators to convene the original panel to examine the level of suspension of benefits.
2. In order to examine the level of suspension of benefits, where possible, the panel shall comprise the same panelists as in the original panel. If not possible, the procedure established in Article 23.8 shall be applied, in which event the respective periods set out therein shall be reduced by half.
3. In any event, this panel shall convene no later than 15 days following the date of the receipt of the request and shall issue its decision within 30 days after it convenes.
4. If the panel finds that the level of benefits which the complaining Party has suspended or proposed to suspend is excessive, it shall determine the level of benefits that it considers to be of equivalent effect.
Chapter TWENTY-FOUR. Exceptions
Article 24.1. General Exceptions
1. For purposes of Chapters Two (National Treatment and Market Access for Goods), Three (Rules of Origin), Four (Origin Procedures), Five (Customs Administration and Trade Facilitation), Six (Sanitary and Phytosanitary Measures), Seven (Technical Barriers to Trade), and Eight (Trade Remedies), Article XX of GATT 1994 and its interpretative notes are incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XX(b) of GATT 1994 include environmental measures necessary to protect human, animal, or plant life or health, and that Article XX(g) of GATT 1994 shall apply to measures related to the conservation of living and non-living exhaustible natural resources.
2. For purposes of Chapters Nine (Investment), Ten (Cross-border Trade in Services), Eleven (Temporary Entry for Business Persons), Thirteen (Telecommunications), and Fourteen (Electronic Commerce) , （1） Article XIV of GATS, including its footnotes, is incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XIV(b) of GATS include environmental measures necessary to protect human, animal, or plant life or health.
Article 24.2. Essential Security
Nothing in this Agreement shall be construed to:
(a) require a Party to furnish, or allow access to, any information the disclosure of which it determines to be contrary to its essential security interests; or
(b) preclude a Party from applying measures that it considers necessary for the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.
Article 24.3. Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to disclose, or allow access to, confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest, or which would prejudice the legitimate commercial interests of particular enterprises, public or private.
Article 24.4. Taxation
1 This Article is without prejudice as to whether digital products should be classified as goods or services. 1. Except as set out in this Article, nothing in this Agreement shall apply to taxation measures.
2. Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention. In the event of any inconsistency between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency. In the case of a tax convention between the Parties, the competent authorities under that convention shall have sole responsibility for determining whether any inconsistency exists between this Agreement and that convention.
3. Notwithstanding paragraph 2:
(a) Article 2.2 (National Treatment) and such other provisions of this Agreement as are necessary to give effect to that Article shall apply to taxation measures to the same extent as does Article III of GATT 1994; and (b) Article 2.11 (Export Taxes) shall apply to taxation measures.
4. Subject to paragraph 2:
(a) Articles 10.2 (National Treatment) and 12.2 (National Treatment) shall apply to taxation measures on income, capital gains, or the taxable capital of corporations that relate to the purchase or consumption of particular services except that nothing in this subparagraph shall prevent a Party from conditioning the receipt or continued receipt of an advantage related to the purchase or consumption of particular services on requirements to provide the service in its territory; and
(b) Articles 9.3 (National Treatment) and 9.4 (Most-Favored-Nation Treatment), 10.2 (National Treatment) and 10.3 (Most-Favored-Nation Treatment), and 12.2 (National Treatment) and 12.3 (Most-Favored-Nation Treatment) shall apply to all taxation measures, other than those on income, capital gains, or the taxable capital of corporations or taxes on inheritances and gifts.
5. Paragraph 4 shall not:
(a) impose any most-favored-nation obligation with respect to an advantage accorded by a Party in accordance with a tax convention;
(b) apply to a non-conforming provision of any existing taxation measure;
(c) apply to the continuation or prompt renewal of a non-conforming provision of any existing taxation measure;
(d) apply to an amendment to a non-conforming provision of any existing taxation measure to the extent that the amendment does not decrease its conformity, at the time of the amendment, with any of the Articles referred to in paragraph 4; or
(e) apply to the adoption or enforcement of any taxation measure aimed at ensuring the equitable or effective imposition or collection of taxes, as permitted by Article XIV(d) of GATS.
6. Subject to paragraph 2, and without prejudice to the rights and obligations of the Parties under paragraph 3, Article 9.7 (Performance Requirements) shall apply to taxation measures.
7. (a) Articles 9.12 (Expropriation) and 9.16 (Investor-State Dispute Settlement) shall apply to a taxation measure alleged to be an expropriation. However, no investor may invoke Article 9.12 (Expropriation) as the basis of a claim where it has been determined in accordance with this paragraph that the measure is not an expropriation. (2) An investor that seeks to invoke Article 9.12 (Expropriation) with respect to a taxation measure must first refer to the competent authorities, at the time that it gives written notice of intent under Article 9.16 (Investor-State Dispute Settlement), the issue of whether that taxation measure involves an expropriation. If the competent authorities do not agree to consider the issue or, having agreed to consider it, fail to agree that the measure is not an expropriation within a period of six months of such referral, the investor may submit its claim to arbitration under Article 9.16 (Investor-State Dispute Settlement).
(b) For purposes of this paragraph, competent authorities means:
(i) for Korea, the Deputy Minister for Tax and Customs, Ministry of Strategy and Finance, or its successor; and (ii) for Peru, the Ministry of Economy and Finance (Ministerio de Economía y Finanzas), or its successor.
8. For purposes of this Article,
(a) taxes and taxation measures do not include: 2 With reference to Article 9.12 (Expropriation) in assessing whether a taxation measure constitutes expropriation, the following considerations are relevant :
(a) the imposition of taxes does not generally constitutes expropriation. The mere introduction of new taxation measures or the imposition of taxes in more than one jurisdiction in respect of an investment does not in itself constitute expropriation;
(b) taxation measures which are consistent with internationally recognized tax policies, principles, and practices do not constitute expropriation and in particular, taxation measures aimed at preventing the avoidance or evasion of taxes should not, generally, be considered to be expropriatory; and
(c) taxation measures which are applied on a non-discriminatory basis, as opposed to being targeted at investors of a particular nationality or specific individual taxpayers, are less likely to constitute expropriation. A taxation measure should not constitute expropriation if, when the investment is made, it was already in force, and information about the measure was made public or otherwise made publicly available.
(i) a customs duty as defined in Article 1.4 (General Definitions); or
(ii) the measures listed in subparagraphs (b) and (c) of the definition of customs duty set out in Article 1.4 (General Definitions); and
(b) tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement.
(a) the imposition of taxes does not generally constitutes expropriation. The mere introduction of new taxation measures or the imposition of taxes in more than one jurisdiction in respect of an investment does not in itself constitute expropriation;
(b) taxation measures which are consistent with internationally recognized tax policies, principles, and practices do not constitute expropriation and in particular, taxation measures aimed at preventing the avoidance or evasion of taxes should not, generally, be considered to be expropriatory; and
(c) taxation measures which are applied on a non-discriminatory basis, as opposed to being targeted at investors of a particular nationality or specific individual taxpayers, are less likely to constitute expropriation. A taxation measure should not constitute expropriation if, when the investment is made, it was already in force, and information about the measure was made public or otherwise made publicly available.
Article 24.5. Balance of Payments Exceptions
1. Where a Party is in serious balance-of-payments and external financial difficulties, or under threat thereof, it may adopt or maintain restrictive measures with regard to trade in goods and services.
2. The Parties shall endeavor to avoid the application of the restrictive measures referred to in paragraph 1. Any restrictive measures adopted or maintained under this Article shall be non-discriminatory and of limited duration, and shall not go beyond what is necessary to remedy the balance of payments and external financial situation. They shall be in accordance with the conditions established in the WTO Agreement and consistent with the Articles of Agreement of the International Monetary Fund, as applicable.
3. Any Party maintaining or having adopted restrictive measures, or any changes thereto, shall promptly notify the other Party of them and present, as soon as possible, a time schedule for their removal.
4. Where the restrictions are adopted or maintained, consultation shall be held promptly within the Joint Commission. Such consultation shall assess the balance-of-payments situation of the concerned Party and the restrictions adopted or maintained under this Article, taking into account, inter alia, such factors as:
(a) the nature and extent of the balance of payments and the external financial difficulties;
(b) the external economic and trading environment; or (c) alternative corrective measures which may be available.
The consultations shall address the compliance of any restrictive measures with paragraphs 2 and 3. All findings of statistical and other facts presented by the IMF relating to foreign exchange, monetary reserves, and balance of payments shall be accepted and conclusions shall be based on the assessment by the IMF of the balance of payments and the external financial situation of the concerned Party.
Chapter TWENTY-FIVE. Final Provisions
Article 25.1. Annexes, Appendices, and Footnotes
The Annexes, Appendices, and footnotes to this Agreement constitute an integral part of this Agreement.
Article 25.2. Entry Into Force
This Agreement shall enter into force 60 days following the date the Parties exchange written notifications certifying that they have completed their respective legal requirements for its entry into force or on such other date as the Parties may agree.
Article 25.3. Amendments
1. The Parties may agree on any amendment to this Agreement.
2. An amendment shall enter into force 45 days following the date the Parties exchange written notifications certifying that they have completed their respective legal requirements for its entry into force or on such other date as the Parties may agree.
3. Unless otherwise provided for in this Agreement, references to laws or regulations in this Agreement include amendments and replacements thereto.
Article 25.4. Termination
A Party may terminate this Agreement after it provides written notification to the other Party. Such termination shall be effective six months following the date of the notification, except for tariff concessions granted under this Agreement, which shall continue in force for a period of one year after the termination becomes effective, unless otherwise agreed by the Parties.
Article 25.5. Authentic Texts
The English, Spanish, and Korean texts of this Agreement are equally valid and authentic. In case of any divergence, the English text shall prevail.
Conclusion
Article Article
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments have signed this Agreement. DONE at Seoul, this 21st day of March, 2011, in two original texts, in the Korean, Spanish, and English languages. FOR THE GOVERNMENT OF FOR THE GOVERNMENT OF THE REPUBLIC OF KOREA THE REPUBLIC OF PERU