Article 14-40. General Provisions.
Time at which the claim is deemed to be submitted to arbitration
1. A claim is deemed to be submitted to arbitration under the terms of this section when:
a) the request for arbitration under Article 36(1) of the ICSID Convention has been received by the Secretary-General;
b) the notice of arbitration, pursuant to Article 2 of Part C of the ICSID Additional Facility Rules, has been received by the Secretary-General; or
c) the notice of arbitration referred to in the UNCITRAL Arbitration Rules has been received by the disputing Party.
Delivery of documents
2. Delivery of the notification and other documents to a Party shall be made at the place designated by it, in accordance with Annex 14-40 (2).
Payments under insurance or guarantee contracts
3. In an arbitration proceeding brought pursuant to this Section, a Party shall not assert as a defense, counterclaim, right of set-off, or otherwise, that the disputing investor received or will receive, pursuant to an insurance or guarantee contract, indemnification or other compensation for all or part of the alleged damages for which restitution is sought.
Publication of awards
4. The publication of awards shall be made in accordance with the provisions of the Rules of Procedure.
Article 14-41. Exclusions.
The dispute settlement provisions of this Section and those of Chapter XIX shall not apply to rulings made by a Party under paragraph 2(c) of Article 14-02, nor to the cases contained in Annex 14-41.
Article 14-42. Subrogation.
In the event that a Party or its designated entity has granted any financial guarantee for non- commercial risks in connection with an investment made by its investors in the territory of another Party and from the time that the first Party or its designated entity has made any payment under the guarantee granted, such Party or its designated entity shall be the direct beneficiary of any payments to which the investor may be entitled. In the event of a dispute, only the investor may initiate or participate in proceedings before a tribunal established under this Section.
Annex 14-11. Public Utility
For the purposes of article 14-11, paragraph 1 (a), subparagraph a), the term public utility is understood to include:
a) in the case of El Salvador: public utility or social interest;
b) for the case of Guatemala: collective utility, social benefit or public interest;
c) for the case of Honduras: public necessity or interest; and
d) for the case of Mexico: public utility.
Annex 14-40(2). Delivery of Notices and other Documents
1. For purposes of Section 14-40 (2), the place for delivery of notices and other documents shall be:
a) for the case of El Salvador: Trade Policy Directorate, Ministry of Economy Alameda Juan Pablo II, Calle Guadalupe, Edificio C-2, Planta 3, Government Center San Salvador, El Salvador
b) for the case of Guatemala: Ministry of Economy 8a. Avenida 10-43 zona 1 Guatemala, Guatemala
c) for the case of Honduras: General Directorate of Economic Integration and Trade Policy, Secretariat of State in the Offices of Industry and Commerce Jeréz Avenue, Larach Building, 10th Floor Tegucigalpa, M.D.C., Honduras
d) for the case of Mexico: Directorate General of Foreign Investment, Ministry of Commerce and Industrial Development. Insurgentes Sur 1940, 8th Floor, Colonia Florida, C.P. 01030 Mexico City.
2. The Parties shall communicate any change in the place designated for the delivery of notices and other documents.
Annex 14-41. Exclusions
They shall not be subject to the dispute resolution mechanisms provided for in Section B or Chapter XIX:
a) in the case of Honduras: resolutions adopted by the Secretariat of State in the Offices of Industry and Commerce in application of articles 11 and 18 of the Foreign Investment Law regarding health, national security and preservation of the environment.
b) in the case of Mexico, resolutions adopted by the National Foreign Investment Commission prohibiting or restricting the acquisition of an investment in the territory of the United Mexican States that is owned or controlled by its nationals, or by one or more investors of another Party, as well as resolutions relating to the provisions of Annex I, page I-M-F-4.
Chapter XV. MEASURES RELATING TO STANDARDIZATION
Article 15-01. Definitions.
For the purposes of this chapter, the Parties shall use the terms presented in the ISO/IEC Guide. 2 in force, "General terms and their definitions in relation to standardization and related activities"; however, the following shall be understood to mean:
TBT Agreement: the Agreement on Technical Barriers to Trade, which is part of the WTO Agreement;
hazardous waste: any material generated in the processes of extraction, benefit, transformation, production, consumption, use, control or treatment, whose quality does not permit its reuse and which, due to its corrosive, toxic, poisonous, reactive, radioactive, explosive, flammable, infectious biological, infectious or irritating characteristics, represents a danger to health or the environment;
risk assessment: the evaluation of the potential harm to human, animal or plant health or safety, or the environment that may be caused by any goods or services traded between the Parties;
to make compatible: to bring different standards-related measures, approved by different standards bodies, but with the same scope, to a level such that they are identical, equivalent or have the effect of allowing goods or services to be used interchangeably or for the same purpose, so as to allow goods and services to be traded between the Parties;
certification conformity mark: the protected mark, applied or issued in accordance with the rules of a certification scheme, which guarantees that the relevant product, process or service Is in conformity with a specific standard or other normative document;
standardization-related measures: standards, technical regulations or conformity assessment procedures;
standard: the document approved by a recognized institution that provides, for common and repeated use, rules, guidelines or characteristics for related goods or processes and methods of production, or for related services or methods of operation, and compliance with which is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labeling requirements applicable to a related good, service, process or method of production or operation;
international standard: a standard or other guide or recommendation, adopted by an international standardization body and made available to the public;
legitimate objectives: inter alia, ensuring the safety or protection of human, animal or plant life or health, ensuring the safety or protection of the environment, or the prevention of practices that may mislead or deceive consumers, including matters relating to the identification of goods or services, considering among other things, where appropriate, fundamental climatic, geographical, technological, infrastructure or scientific justification factors; standardizing body: a body whose standardization activities are recognized by the government of each Party, respectively;
standardization body: a body whose standardization activities are recognized by the government of each Party, respectively;
international standardizing body: a standardizing body open to participation by the relevant bodies of at least all parties to the TBT Agreement, including the International Organization for Standardization (ISO), the International Electrotechnical Commission (IEC), the Codex Alimentarius Commission, the World Health Organization (WHO) and its dependent bodies, the International Organization of Legal Metrology (OIML), the International Bureau of Weights and Measures (BIPM) and the International Commission on Radiological Units and Measurements (ICUMR) or such other body as the Parties may designate;
approval procedure: any mandatory administrative process for obtaining a registration, license, permit, or any other authorization, in order for a good or service to be marketed or used for defined purposes or in accordance with established conditions;
conformity assessment procedure: any procedure used, directly or indirectly, to determine whether the relevant requirements established by technical regulations or standards are met, including sampling, testing, inspection, evaluation, assessment, verification, assurance of conformity, accreditation, certification, registration or approval, used for such purposes;
administrative rejection: actions taken by an organ of the public administration of the importing Party, in the exercise of its powers, to prevent the entry into its territory of a shipment or the provision of a service, due to non-compliance with technical regulations or conformity assessment procedures;
technical regulation: the document that establishes the characteristics of goods or their related processes and production methods, or the characteristics of services or their related methods of operation, including the applicable administrative provisions, and whose observance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging or labeling requirements applicable to a good, service, process or related production or operation method;
service: any service within the scope of application of this treaty, which is subject to measures relating to standardization or metrology; and
Hazardous substances: those that threaten human, animal or plant life or health or the environment, and which are identified as such by national and international organizations.
Article 15-02. Scope of Application.
1. This Chapter applies to measures relating to standardization and metrology of the Parties, as well as to measures related thereto that may affect, directly or indirectly, trade in goods or services between the Parties.
2. This chapter does not apply to sanitary and phytosanitary measures.
Article 15-03. Confirmation of International Rights and Obligations.
The Parties confirm their existing rights and obligations regarding standards-related measures under the TBT Agreement and other international agreements to which the Parties are parties, including agreements on health, environment and its conservation, and consumer protection.
Article 15-04. Extension of Obligations.
Each Party shall comply with the provisions of this Chapter and shall adopt the necessary measures to ensure compliance by its federal or central and state or departmental and municipal governments and shall adopt such measures in this regard as may be available to it with respect to nongovernmental standardizing bodies in its territory.
Article 15-05. Principal Rights and Obligations.
1. Each Party may set the level of protection it considers appropriate to achieve its legitimate objectives.
2. Each Party may develop, adopt, implement and maintain measures relating to standardization to ensure its level of protection of human, animal or plant life or health, or the environment, or for the prevention of practices that may mislead or deceive the consumer, as well as measures to ensure their implementation and enforcement, including relevant approval procedures.
3. No Party shall develop, adopt, apply or maintain standardization measures or approval procedures that have the purpose or effect of creating unnecessary obstacles to trade between them. To this end, each Party shall ensure that measures relating to standardization or approval procedures do not restrict trade, except as strictly necessary for the achievement of its legitimate objectives, taking into account the technical and economic possibilities and the risks that non-compliance would create.
4. With respect to its standards-related measures, each Party shall accord to goods and services originating in the territory of the other Party national treatment and treatment no less favorable than that it accords to like goods and services originating in any other non-Party.
5. At the request of El Salvador, Guatemala and Honduras, the Committee on Standards-Related Measures shall evaluate and recommend to the Commission for resolution, actions on any matter relating to standardization measures and approval procedures, taking into account their specific needs related to Article 12 of the TBT Agreement, so that their preparation, adoption and application does not represent an obstacle to trade. Such actions shall be specific and time-bound.
Article 15-06. Use of International Standards.
1. Each Party shall use for the elaboration, development or application of its standards-related measures, international standards in force or of imminent adoption, except when such international standards do not constitute an effective or adequate means to achieve its legitimate objectives, due to fundamental factors of a climatic, geographical, technological, or infrastructural nature, or for scientifically proven reasons.
2. A standardization measure of a Party that conforms to an international standard shall be presumed to be consistent with paragraphs 3 and 4 of article 15-05. 3. In pursuing its legitimate objectives and because of fundamental climatic, geographical, technological or infrastructural factors, or for scientifically proven reasons, each Party may adopt, apply or maintain any standardization measure that results in a higher level of protection than would have been achieved if the measure were based on an international standard.
Article 15-07. Risk Assessment.
1. Each Party may carry out risk assessments in its territory, provided that this does not have the purpose or effect of creating unnecessary barriers to trade between them. In making such assessments, they shall take into consideration risk assessment methods developed by international bodies and shall ensure that their measures relating to standardization are based on assessments of risk to human, animal or plant health or life, or safety of the environment.
2. The Party conducting a risk assessment shall take into consideration all relevant scientific evidence, available technical information, intended end use, processes or methods of production, operation, inspection, quality, sampling or testing, or environmental conditions.
3. Having established the level of protection it considers appropriate in accordance with paragraph 1 of Article 15-05, each Party shall, in carrying out a risk assessment, avoid arbitrary or unjustifiable distinctions between like goods and services, if such distinctions are made:
a) have the effect of arbitrarily or unjustifiably discriminating against goods or services of another Party;
b) constitute a disguised restriction on trade between the Parties; or
c) discriminate between similar goods or services for the same use, in accordance with the same conditions that pose the same level of risk and provide similar benefits.
4. Where the Party conducting a risk evaluation concludes that the scientific evidence or other available information is insufficient to complete the evaluation, it may adopt a technical regulation on an interim basis, such as that set forth in paragraph 5 of Article 15-12 based on the relevant information available, in accordance with paragraph 2. Once it has been presented with sufficient information to complete the risk evaluation, the Party shall complete its evaluation as soon as possible, review and, where appropriate, reconsider the interim technical regulation in light of that evaluation.
Article 15-08. Compatibility and Equivalence.
1. The Parties shall work together to strengthen the level of safety and protection of human, animal or plant life or health, or the level of safety and protection of the environment, and for the prevention of practices that may mislead or deceive consumers.
2. Without prejudice to their rights under this Chapter and taking into account international standardization activities, the Parties shall make their respective standardization measures compatible to the greatest extent possible, without reducing the level of safety and protection of the environment, health or to human, animal or plant life, or the level of safety and protection of the environment, or the prevention of practices that may mislead or deceive consumers.
3. At the request of a Party, another Party shall take such reasonable measures as may be available to it to promote the compatibility of its specific standardization measures with the standardization measures of the requesting Party, taking into account international standardization procedures and activities.
4. The importing Party shall accept as equivalent to its own technical regulation the technical regulation adopted or maintained by the exporting Party, when the latter proves to the satisfaction of the former that its technical regulation adequately meets the legitimate objectives of the importing Party. For the purposes of such accreditation, the importing Party shall cooperate with the exporting Party. The importing Party shall communicate in writing to the exporting Party, upon request, the reasons for non-acceptance of a technical regulation.
5. To the extent possible, each Party shall accept the results of conformity assessment procedures carried out in the territory of another Party, provided that they offer a satisfactory assurance, equivalent to that provided by procedures carried out or conducted in its territory by the accepting Party and the result of which it accepts, that the relevant good or service complies with the applicable technical regulation or standard adopted or maintained in the territory of the accepting Party.
6. Upon acceptance of the results of a conformity assessment procedure in accordance with paragraph 5 and, in order to strengthen the confidence and reliability of each other's conformity assessment results, the Parties may consult on matters such as the technical capability of conformity assessment bodies, taking into consideration verified compliance with relevant international standards through that means of accreditation.
Article 15-09. Conformity Assessment.
1. Taking into account the differences in the conformity assessment procedures in their respective territories, the Parties shall make compatible, to the greatest extent possible, their respective conformity assessment procedures in accordance with the provisions of this Chapter.
2. For the mutual benefit of the Parties, each Party shall accredit, approve, license or recognize conformity assessment bodies in the territory of another Party on terms no less favorable than those granted to such bodies in its territory.
3. For conformity assessment procedures, a Party may use the existing capacity and technical structure of bodies accredited under paragraph 2, established in the territory of another Party.
4. With regard to its conformity assessment procedures, each Party:
a) shall refrain from adopting, maintaining or applying more stringent conformity assessment procedures than necessary to ensure that the good or service conforms to the applicable technical regulation or standard, taking into consideration the risks that the non-conformity could create;
b) initiate and complete these procedures as expeditiously as possible;
c) shall establish a non-discriminatory order for the processing of applications;
d) shall accord to goods and services of another Party, national treatment and treatment no less favorable than that it accords to originating goods and like services of any other non- Party;
e) publish the normal duration of each of these procedures or communicate, at the request of the applicant, the approximate duration of the procedure;
f) ensure that the competent national agency:
i) upon receipt of an application, promptly examine the completeness of the documentation and inform the applicant accurately of any deficiencies, and it is the applicant's responsibility to correct them within the time limit;
ii) as soon as possible, transmit to the applicant the results of the conformity assessment procedure, in an accurate and complete manner, to enable the applicant to carry out any corrective action;
iii) when the application is deficient and at the request of the applicant, continue the procedure as far as possible; and
iv) inform the applicant of the reasons for any delay and, upon request, the status of the application;
g) shall require from the applicant only the information necessary to assess conformity and determine the appropriate cost of the assessment;
h) shall accord to confidential information, with respect to a good or service of another Party, that is submitted or arises from the procedure, national treatment and treatment that protects the commercial interests of the applicant;
i) shall ensure that any fee charged for assessing the conformity of a good or service being imported is equitable to that charged for assessing the conformity of an identical or similar good or service of the importing Party, taking into account communication, transportation and other related costs;
j) ensure, where possible, that the procedure is carried out at the production facility of the good and that, where appropriate, a certification mark of conformity is awarded;
k) limit the procedure to what is necessary to determine that a good or service that has been modified continues to comply with a technical regulation or standard, provided that it is a good or service that has been determined prior to its modification to comply with the relevant requirements established by that technical regulation or standard;
l) limit any requirement for samples of a property to what is indispensable, and avoid unnecessary inconvenience to the applicant or his representative in the selection and collection of samples; and
m) The location of the facilities where the procedures are carried out shall not cause unnecessary inconvenience to the applicant or its representative.
5. Each Party shall give favorable consideration to the request of any Party to negotiate agreements on the mutual recognition of the results of conformity assessment procedures.
Article 15-10. Approval Procedures.
1. The Parties shall grant national treatment in their approval procedures.
2. Notwithstanding the foregoing, when, within the approval procedures, specific application requirements are required for imported goods or services that are not granted national treatment in such requirements, they shall comply with the provisions of paragraph 3 of Article 15- 05.
3. Where a Party considers that any specific application requirement required by another Party for imported goods or services under the preceding paragraph does not comply with the provisions of paragraph 3 of Article 15-05, it may refer the matter to the Sub-Committee on Approval Procedures, based on the provisions of Article 15-16. With a view to reaching a mutually satisfactory resolution of the dispute, consultations shall be held within 15 days from the date of submission of the request. The consulting Parties, by mutual agreement, may extend this period by up to 90 days.
4. Each Party, with respect to its approval procedures, shall ensure that:
a) to ensure that the procedures and their application are no stricter than necessary, taking into consideration the risks that non-compliance could create;
b) initiate and complete this procedure as expeditiously as possible;
c) establish a non-discriminatory order for the processing of applications;
d) communicate, at the request of the applicant, the approximate duration of the procedure;
e) the competent national agency:
i) upon receipt of an application, promptly examine the completeness of the documentation and inform the applicant accurately of any deficiencies, and it is the applicant's responsibility to correct them within the time limit;
ii) as soon as possible, transmit to the applicant the results of the approval procedure, accurately and completely, so that any corrective action can be carried out; and
iii) inform the applicant of the reasons for any delay and, upon request, the status of the application;
f) to request from the applicant only the information necessary to carry out the approval procedure and to determine the cost of the same;
g) to accord to confidential information, with respect to a good or service of another Party, which is submitted or arises from the approval procedure, national treatment and treatment that protects the commercial interests of the applicant;
h) that any fee charged for the procedure is equitable to that charged for the procedure for an identical or similar good or service of the Party conducting the approval procedure, taking into account communication, transportation and related costs; and
i) limit any requirement relating to samples of a good to what is indispensable.
5. The Parties shall grant, in accordance with their legislation, the sanitary registration for the goods that require it.
Article 15-11. Metrological Standards.
Each Party shall ensure the traceability of its metrological standards as recommended by the BIPM and OIML, as stipulated in this chapter.
Article 15-12. Notification, Publication and Delivery of Information.
1. Each Party shall notify the other Parties of the measures relating to standardization and metrology that it decides to establish before they enter into force and on the same day as to its nationals.
2. Each Party shall notify the other Parties of the measures relating to standardization and metrology that are no longer in force.
3. When, in accordance with its legislation, a Party proposes the adoption or modification of any measure related to standardization or metrology:
a) publish a notice and notify the other Parties in writing of its intention to adopt or modify such measure, so as to enable interested persons to become acquainted with the contents of the proposal, at least 60 days prior to its adoption or modification;
b) shall identify in such notice and notification, the good or service to which the measure is to be applied, and shall include a brief description of the objective and motivation of the measure;
c) provide a copy of the proposed measure to the other Parties and to any interested person upon request and, where possible, identify the provisions that deviate substantially from the relevant international standards;
d) without discrimination, allow other Parties and interested persons to make comments in writing, discuss and take them into account, and upon request, make the results of the discussions known to them; and
e) shall ensure that, upon adoption of the measure, it is published expeditiously or otherwise made available to interested persons of another Party so that they may become acquainted with the content of the measure.
4. Each Party shall, to the extent possible, communicate to the other Parties expressing an interest in the matter, any amendment or adoption of a law or regulation containing provisions relating to technical regulations.
5. Where a Party considers it necessary to deal with an urgent problem relating to safety or to the protection of human, animal or plant life or health, or to the safety or protection of the environment or to practices that may mislead or deceive consumers, it may omit any of the steps set out in paragraph 3, provided that in taking the standardization measure:
a) immediately notify the other Parties, in accordance with the requirements set forth in paragraph 3(b), including a description of the urgent problem;
b) provide a copy of the measure to the other Parties and to any interested person who so requests;
c) without discrimination, allow other Parties and interested persons to make comments in writing, discuss and take them into account, and upon request, make the results of the discussions known to them; and
d) ensure that the measure Is published in an expeditious manner, or otherwise enable interested persons to become acquainted with the content of the measure.
6. Each Party shall allow an appropriate period between the publication of its measures relating to standardization and metrology and the date on which they enter into force for interested persons to adapt their goods, services or production methods to these measures, except where it is necessary to deal with one of the urgent problems referred to in paragraph 5.
7. Each Party shall annually notify the other Parties in writing of its standardization plans and programs.
8. The Parties designate as competent authorities, responsible for the implementation of the notification provisions of this Chapter, those indicated in Annex 15-12. When a Party designates two or more governmental authorities for this purpose, it shall inform the other Party, in a precise and complete manner, of the scope of responsibilities of those authorities.
9. When a Party makes an administrative rejection, it shall promptly inform the person entitled to the shipment or the service provider, in writing, of the justification for the rejection.
10. Once the information referred to in paragraph 9 has been generated, the Party shall immediately forward it to the information center or centers in its territory referred to in Article 15-13, which, in tum, shall bring it to the attention of the information center or centers of another Party.
Article 15-13. Information Centers.
1. Each Party shall ensure that it has at least one information center in its territory, responsible for answering and responding to reasonable inquiries and requests from another Party and interested persons, as well as for providing relevant updated documentation regarding:
a) any measures relating to standardization, metrological standards or approval procedures, adopted or proposed in its territory by governmental or non-governmental bodies;