Article 16-54. Indemnification to the Importer and the Owner of the Goods.
The relevant authorities shall have the authority to order the claimant to pay the importer, the consignee and the owner of the goods adequate compensation for any damage to them caused by the unfounded detention of the goods or by the detention of goods that have been cleared in accordance with the provisions of article 16-53.
Article 16-55. Right of Inspection and Information.
Without prejudice to the protection of confidential information, the Parties shall empower the competent authorities to give the right holder sufficient opportunity to have any goods detained by the customs authorities inspected in order to substantiate his claims. Likewise, the competent authorities shall be empowered to give the importer equivalent opportunities to have such goods inspected. When a positive decision on the merits of the case has been taken, the Parties may empower the competent authorities to communicate to the right holder the name and address of the consignor, the importer and the consignee, as well as the quantity of the goods in question.
Article 16-56. Ex Officio Action.
When the parties to the proceeding request the competent authorities to act ex officio and suspend the release of those goods in respect of which they have the presumption that they infringe an intellectual property right:
a) the competent authorities may, at any time, request from the right holder any information that may be useful to them in exercising that power;
b) the importer and the right holder shall be promptly notified of the suspension. If the importer appeals against it to the competent authorities, the suspension shall be subject, mutatis mutandis, to the conditions stipulated in article 16-53; and
c) the Parties shall exempt both the authorities and their officials from liability for appropriate precautionary measures only in the case of actions taken or intended to be taken in good faith.
Article 16-57. Resources.
Without prejudice to any other actions to which the right holder may be entitled and subject to the right of the defendant to appeal to a judicial authority, the competent authorities shall be empowered to order the destruction or disposal of the infringing goods, in accordance with the principles set out in Article 16-44. As regards counterfeit goods, the authorities shall not, save in exceptional circumstances, permit the same to be re-exported in the same state or subject them to a different customs procedure.
Article 16-58. Insignificant Imports.
Each Party may exclude from the application of Articles 16-49 to 16-57, small quantities of goods that are not of a commercial nature and are part of the personal baggage of travelers or are sent in small consignments.
Article 16-59. Criminal Proceedings.
1. Each Party shall establish criminal procedures and penalties, at least for cases of wilful trademark counterfeiting or copyright piracy on a commercial scale, which shall include imprisonment or the imposition of sufficiently dissuasive pecuniary penalties consistent with the level of penalties for offenses of comparable gravity.
2. Where appropriate, available sanctions shall also include the confiscation, forfeiture and destruction of the infringing property and of all materials and accessories predominantly used for the commission of the offense. In considering the issuance of such orders, the judicial authorities shall take into account the need for proportionality between the seriousness of the infringement and the measures ordered, as well as the interests of other persons including those of the right holder.
3. With respect to counterfeit goods, the mere removal of the unlawfully affixed mark shall not be sufficient to permit the release of the goods into the channels of commerce, except in exceptional cases to be established by the legislation of each Party, such as those in which the authority provides for their donation to charitable institutions. Each Party may provide for the application of criminal procedures and penalties in other cases of infringement of intellectual property rights, in particular when committed with malice and on a commercial scale.
Chapter XVII. TRANSPARENCY
Article 17-01. Information Center.
1. Each Party shall designate a unit or office as an information center to facilitate communication between the Parties on any matter covered by this treaty.
2. When requested by a Party, the information center of another Party shall indicate the unit or official responsible for the matter and provide such support as may be required to facilitate communication with the requesting Party.
Article 17-02. Publication.
Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application, which relate to any matter covered by this treaty, are promptly published or made available for the information of the Parties and any interested party.
Article 17-03. Notification and Provision of Information.
1. Each Party shall, to the extent possible, notify the other parties of any existing or proposed measure that the Party considers may substantially affect or will substantially affect the interests of the other parties under the terms of this agreement. Such notification shall be made without prejudice to whether or not the measure is compatible with this treaty.
2. Each Party shall, at the request of another Party, provide information and promptly respond to its questions regarding any measure in force or planned.
Article 17-04. Guarantees of Hearing, Legality and Due Process.
1. The parties reaffirm the guarantees of hearing, legality and due process provided for in their respective legislation.
2. Each Party shall maintain judicial or administrative procedures for the review and, where appropriate, correction of final acts relating to this treaty.
3. Each Party shall ensure that in judicial and administrative proceedings relating to any measure affecting the application of this treaty, the essential procedural formalities are complied with and the legal cause of action is established and substantiated.
Chapter XVIII. TREATY ADMINISTRATION
Article 18-01. Administrative Commission.
1. The Parties establish the Administrative Commission, which shall be composed of the officials referred to in Annex 18-01(1) or by the persons designated by them.
2. The Commission shall have the following functions:
a) to ensure compliance with and the correct application of the provisions of the treaty;
b) evaluate the results achieved in the implementation of the treaty, monitor its development and recommend to the Parties the modifications it deems appropriate;
c) propose measures aimed at the proper administration and development of the treaty and its annexes;
d) contribute to the resolution of disputes arising from its interpretation and application;
e) recommend to the Parties the adoption of the necessary measures to implement its decisions;
f) fix the amounts of remuneration and expenses to be paid to the arbitrators, their assistants and experts, which shall be borne equally by the disputing Parties; and
g) to hear any other matter that may affect the operation of this treaty, or that may be entrusted to it by the Parties.
3. The Commission may:
a) establishing ad hoc or standing committees, working groups and expert groups, and assigning them authority;
b) seek the advice of persons or institutions with no governmental connection; and
c) to take any other action in the exercise of its functions.
4. The Commission shall establish its rules and procedures and all decisions shall be made by consensus.
5. The Commission shall meet at least once a year in regular session and, at the request of any Party, in special session. The ordinary sessions shall be chaired successively by each Party.
Article 18-02. Administrative Subcommittee.
1. The Parties hereby establish the Administrative Subcommittee, which shall be composed of the officials referred to in Annex 18-02(1) or such other persons as they may designate.
2. The Subcommittee shall have the following functions:
a) oversee the work of all committees, subcommittees and working groups established in this treaty and included in annex 18-02(2);
b) to follow up on the decisions and agreements reached by the Commission;
c) prepare and review the technical dossiers necessary for making decisions and agreements within the framework of the treaty;
d) to act as technical secretariat at the meetings of the Commission;
e) designate the information center for each Party, in accordance with Article 17-01; and
f) to hear any other matter that may affect the operation of the treaty, which may be entrusted to it by the Commission.
3. The Subcommittee shall meet at least twice a year, alternating between the Parties. 4. The Subcommission shall present an annual report of its work to the Commission.
Article 18-03. Secretariat.
1. The Commission shall establish and supervise a Secretariat composed of national sections.
2. Each Party:
a) shall establish the permanent office of its national section;
b) will be responsible for:
i) the operation and costs of its section, and
ii) the remuneration and expenses payable to the arbitrators, their assistants and experts appointed in accordance with Chapter XIX;
c) designate the Secretary of its national section, who shall be the officer responsible for its administration; and d) shall notify the Commission of the address of its national section.
3. The Secretariat shall have the following functions:
a) provide assistance to the Commission and the Sub-Commission;
b) to provide administrative support to the arbitration tribunals established pursuant to chapter XIX;
c) on instructions from the Commission, support the work of committees, subcommittees and expert groups established pursuant to this treaty; and d) such other duties as may be entrusted to it by the Commission.
Annex 18-01. Officers of the Administrative Commission
The officers comprising the Commission shall be:
a) in the case of El Salvador: the Minister of Economy or his successor;
b) in the case of Guatemala: the Minister of Economy or his successor;
c) in the case of Honduras: the Secretary of State in the Offices of Industry and Commerce, or his successor; and
d) in the case of Mexico: the Secretary of Commerce and Industrial Development, or his successor.
Annex 18-02(1). Officers of the Administrative Subcommittee
The officers comprising the Subcommittee shall be:
a) in the case of El Salvador: the Vice Minister of Economy, or his successor;
b) in the case of Guatemala: the Vice Minister of Economy in charge of Integration Affairs, or his successor;
c) in the case of Honduras: the Undersecretary of Economic Integration and Foreign Trade, or his successor; and
d) in the case of Mexico: the Head of the Office of Latin America, Market Access and FTAA Negotiations, or his successor.
Annex 18-02(2). Committees and Subcommittees
Committee on Trade in Goods (article 3 -18)
Committee on Agricultural Trade (article 4 -10)
Committee on Sanitary and Phytosanitary Measures (article 5 - 10)
Committee on Regional Integration of Inputs (article 6 -19)
Committee of Origin (article 7 -12)
Committee on Cross-Border Trade in Services and Investment (Article 10-10)
Committee on Professional Services (annex on professional services)
Committee on Financial Services (Article 11-11)
Committee on Temporary Entry of Business Persons (Article 13-06)
Committee on Measures Relating to Standardization (Article 15-14)
Subcommittee on Labeling, Packaging and Packaging (Article 15-15)
Subcommittee on Approval Procedures (Article 15-16)
Subcommittee on Measures Relating to Telecommunication Standardization (Article 15-17)
Chapter XIX. SETTLEMENT OF DISPUTES
Article 19-01. Cooperation.
The Parties shall at all times endeavor to reach agreement on the interpretation and application of this treaty through cooperation and consultation, and shall endeavor to reach a mutually satisfactory solution of any matter that may affect its operation.
Article 19-02. Scope of Application.
Except as otherwise provided In this Treaty, the procedure of this Chapter shall apply:
a) to the prevention or settlement of all disputes between the Parties concerning the application or interpretation of this treaty; or
b) where a Party considers that an existing or proposed measure of another Party is or may be inconsistent with the obligations of this treaty or may cause nullification or impairment within the meaning of Annex 19-02.
Article 19-03. Dispute Settlement Under the WTO Agreement.
1. Disputes arising in connection with the provisions of this treaty and the WTO Agreement or the agreements negotiated pursuant to the latter may be settled in either forum, at the option of the complaining Party.
2. Once a dispute settlement proceeding has been initiated under Article 19-06 or under Article 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, which is part of the WTO Agreement, the forum selected shall be exclusive of any other forum.
Article 19-04. Perishable Goods.
In disputes relating to perishable goods, the time limits established in this chapter shall be reduced by half, without prejudice to the possibility that the disputing Parties, by mutual agreement, may decide to reduce them even further.
Article 19-05. Consultations.
1. Any Party may request in writing to the other Party or Parties that consultations be held with respect to any measure adopted or proposed, or any other matter that it considers may affect the operation of this treaty under the terms of Article 19-02.
2. The requesting Party, through its national section of the Secretariat, shall deliver a copy of the request to the other Parties.
3. Unless otherwise provided by the Commission, a third Party may participate in the consultations, subject to prior written notification through its national section of the Secretariat to the other Parties.
4. The consulting Parties:
a) shall examine with due diligence the inquiries made to them;
b) provide information that will make it possible to examine the manner in which the adopted or proposed measure could affect the operation of this treaty;
c) treat confidential information exchanged during consultations in the same manner as the Party that provided the information; and
d) shall endeavor to avoid any solution that adversely affects the interests of any other Party under this treaty.
Article 19-06. Intervention of the Commission, Good Offices, Conciliation and Mediation.
1. Any consulting Party may request in writing, through its national section of the Secretariat, that the Commission be convened whenever a matter is not resolved in accordance with Article 19-05 within 30 days of the delivery of the request for consultations.
2. A Party may also request in writing, through its national section of the Secretariat, that the Commission be convened when technical consultations have been carried out in accordance with the provisions of Articles 5 -13 and 15-18.
3. The requesting Party shall mention in the request the measure that is the subject of the complaint, indicate the provisions of this treaty that it considers applicable and submit the request, through its national section of the Secretariat, to the other Parties.
4. The Commission shall meet within 10 days of the filing of the request and in order to reach a mutually satisfactory resolution of the dispute, may:
a) convene technical advisors or set up such working groups or expert groups as it deems necessary;
b) use of good offices, conciliation, mediation or other alternative means of dispute resolution; or
c) formulate recommendations.
5. Unless it decides otherwise, the Commission may join two or more proceedings before it under this Article relating to the same measure. Likewise, it may join two proceedings concerning other matters before it under this article, when it considers it appropriate to examine them jointly.
Article 19-07. Request for the Establishment of the Arbitral Tribunal.
1. Any consulting party may request in writing the establishment of an arbitral tribunal when the matter has not been resolved within: a) within 30 days after the meeting of the commission pursuant to article 19-06, paragraph 4, or, if no such meeting has been held, within 30 days after the request for a meeting of the commission, or b) 30 days after the commission has met to deal with the most recent matter submitted for its consideration, when several proceedings have been accumulated in accordance with article 19-06, paragraph 5.
2. The requesting Party shall deliver the request, through its national section of the Secretariat, to the other Parties. Upon submission of the request, the Commission shall establish an arbitral tribunal.
3. A third Party shall have the right to participate as a complaining Party by delivering its intention, through its national section of the Secretariat, to the disputing Parties. The notice shall be delivered at the latest within seven days from the date on which a Party has filed the request for the establishment of the arbitral tribunal.
4. If a third Party decides not to intervene as a complaining Party in accordance with paragraph 3, it shall thereafter refrain from initiating with respect to the same matter, absent a significant change in economic or commercial circumstances:
a) a dispute settlement procedure in accordance with this chapter, or
b) a dispute settlement procedure in accordance with the Understanding on Rules and Procedures Governing the Settlement of Disputes, which forms part of the WTO Agreement, invoking grounds substantially equivalent to those that such Party could invoke under this treaty.
5. Unless otherwise agreed by the disputing Parties, the arbitral tribunal shall be composed and perform its functions in accordance with the provisions of this Chapter.
Article 19-08. List and Qualifications of Arbitrators.
1. Upon entry into force of this treaty, each Party shall appoint 10 arbitrators to the "List of Arbitrators from Mexico and El Salvador, Guatemala and Honduras". Likewise, the Parties, by mutual agreement, shall appoint five arbitrators from non-Party countries to the "Non-Party Arbitrators Roster".
2. The members of the lists:
a) will have expertise expertise o experience at law, international trade, other matters related to this treaty, or in the resolution of disputes arising from international trade agreements;
b) shall be selected strictly on the basis of their objectivity, reliability and sound judgment;
c) shall be independent of, not bound by, and not receive instructions from, the Parties; and
d) comply with the Code of Conduct set forth in Annex 19-08.
3. Persons who have intervened in a dispute, in the terms of paragraph 4 of article 19-06, may not be arbitrators for the same dispute.
Article 19-09. Integration of the Arbitral Tribunal.
1. The arbitral tribunal shall be composed as follows:
a) within 10 days of the request for the establishment of an arbitral tribunal pursuant to Article 19-07, each Party shall appoint an arbitrator from the "List of Arbitrators of Mexico and El Salvador, Guatemala and Honduras";
b) by mutual agreement, the Parties shall appoint the third arbitrator from the "List of Non- Party Arbitrators" within 10 days from the date on which the last of the two arbitrators referred to in a) above was appointed. The third arbitrator shall preside over the arbitral tribunal;
c) if a Party has not appointed its arbitrator within the 10-day period established in paragraph a), such appointment shall be made by lot between the Parties, at the request of the other Party, from among the arbitrators included in the "List of Arbitrators of Mexico and El Salvador, Guatemala and Honduras", who are nationals of the Party that has not appointed its arbitrator;
d) likewise, if within 10 days following the term established in paragraph b) there is no agreement between the Parties on the appointment of the third arbitrator, any Party may appoint the arbitrator from the "List of Non-Party Arbitrators"; and
e) by mutual agreement, the Parties may appoint an arbitrator not included in the lists referred to in Article 19-08.
2. In the event that a disputing Party is composed of two or more Parties, one of them, elected by mutual agreement, shall represent the other Parties with respect to the procedure set forth in paragraph 1.