4. In any dispute in which the arbitral tribunal has found a measure to be inconsistent with the obligations of this treaty, where the suspension of benefits referred to in Chapter XIX is appropriate and the measure affects:
a) only to the financial services sector, the complaining Party may suspend benefits only in that sector;
b) to the financial services sector and any other sector, the complaining Party may suspend benefits in the financial services sector that have an effect equivalent to the effect of that measure on the financial services sector; or
c) In the case of any sector other than the financial services sector, the complaining Party may not suspend benefits in the financial services sector.
Article 11-19. Dispute Settlement between a Party and an Investor of Another Party.
1. Except as provided in this Article, claims brought by a disputing investor against a Party with respect to obligations under this Chapter shall be resolved in accordance with the provisions of Section B of Chapter XIV.
2. When the Party against which the claim is made invokes any of the exceptions referred to in article 11-09, the following procedure shall be observed:
a) the arbitral tribunal shall refer the matter to the Committee for decision. The tribunal may not proceed until it has received a decision of the Committee under the terms of this article or 60 days have elapsed from the date of receipt by the Committee; and
b) upon receipt of the matter, the Committee shall decide whether and to what extent the Article 11-09 exception invoked is a valid defense to the investor's claim and shall transmit a copy of its decision to the arbitral tribunal and to the Commission. That decision shall be binding on the tribunal.
Annex 11-01. Competent Authority
For the purposes of this Chapter, the competent authority of each Party shall be:
a) in the case of El Salvador: the Central Reserve Bank, the Superintendence of the Financial System, the Superintendence of Pensions, the Superintendence of Securities and the Ministry of Economy;
b) in the case of Guatemala: the Monetary Board, the Bank of Guatemala, the Ministry of Economy and the Superintendency of Banks;
c) for the case of Honduras: the Central Bank of Honduras, the National Banking and Insurance Commission, the Secretariat of State in the Offices of Industry and Commerce and the Secretariat of State in the Office of Finance.
d) in the case of Mexico: the Ministry of Finance and Public Credit.
Chapter XII. TELECOMMUNICATIONS
Article 12-01. Definitions.
For the purposes of this chapter, the following definitions shall apply:
intracorporate communications: the telecommunications through which a company communicates:
a) internally, with its subsidiaries, branches and affiliates, or among themselves, as defined by each Party; or
b) in a non-commercial manner, with all persons of fundamental importance to the economic activity of the company, and who have an ongoing contractual relationship with it;
but does not include telecommunications services supplied to persons other than those described in this definition;
authorized equipment: terminal or other equipment that has been approved for connection to the public telecommunications network in accordance with a Party's conformity assessment procedures;
terminal equipment: any digital or analog device capable of processing, receiving, switching, signaling or transmitting signals by electromagnetic means and which is connected to the public telecommunications network, by means of radio or cable connections, at a terminal point;
standardization measure: "standardization measure" as defined in Chapter XV;
conformity assessment procedure: "conformity assessment procedure" as defined in Chapter XV;
protocol: a set of rules and formats governing the exchange of information between two peer entities for the purpose of transferring signal or data information;
dominant supplier or dominant operator: a supplier that has the ability to significantly affect the conditions of participation (in terms of price and supply) in a given market for telecommunications services as a result of control of essential facilities or use of its market position;
network terminal point: the final demarcation of the public telecommunications network at the user's premises;
private telecommunications network: the internal telecommunications network of a company or between persons that does not involve commercial exploitation;
public telecommunications network: the telecommunications network used to commercially operate telecommunications services intended to meet the needs of the general public; not including users' telecommunications terminal equipment or telecommunications networks beyond the terminal point of the network;
enhanced or value-added services: telecommunication services using computerized processing systems that:
a) act on the format, content, code, protocol or similar aspects of the user's transmitted information;
b) providing the customer with additional, different or restructured information; or
c) involve user interaction with stored information;
public telecommunications service: any telecommunications service that a Party explicitly or de facto mandates to be offered to the general public, including telegraph, telephone, telex and data transmission, and that generally involves the real-time transmission of customer-supplied information between two or more points, with no "point-to-point" change in the form or content of the user's information;
fixed rate: pricing on the basis of a fixed amount per period, regardless of the amount of use; and telecommunications: the transmission, emission, reception of signs, signals, writings, images, sounds and information of any nature, by physical line, radioelectricity, optical means or other electromagnetic systems.
Article 12-02. Scope of Application and Extent of Obligations.
1. Recognizing the dual role of telecommunication services, both as a specific sector of economic activity and as a means of providing services for other economic activities, this chapter applies to:
a) measures adopted or maintained by a Party relating to the supply of public telecommunications services;
b) measures adopted or maintained by a Party relating to the continued access to and use of public telecommunications networks or services by persons of another Party, including their access to and use when operating private networks to carry out intracorporate communications;
c) measures adopted or maintained by a Party on the supply of value-added or enhanced services by persons of another Party in the territory of the former Party or across its borders; and
d) measures relating to standardization with respect to connection of terminal or other equipment to public telecommunications networks.
2. Except to ensure that persons operating broadcasting stations and cable systems have continued access to and use of public telecommunications networks and services, this Chapter does not apply to any measure that a Party adopts or maintains relating to the broadcasting or cable distribution of radio or television programming.
3. Nothing in this chapter shall be construed to mean:
a) oblige any Party to authorize a person of another Party to establish, construct, acquire, lease, operate or supply telecommunications networks or services;
b) to compel any Party or to require any Party to require any person to establish, construct, acquire, lease, operate or supply public telecommunications networks or services that are not offered to the general public;
c) prevent any Party from prohibiting persons operating private networks from using such networks to provide public telecommunications networks or services to third parties; or
d) oblige a Party to require any person engaged in the broadcasting or cable distribution of radio or television programming to provide its cable distribution or broadcasting infrastructure as a public telecommunications network.
Article 12-03. Access to and Use of Public Telecommunications Networks and Services.
1. Each Party shall ensure that any person of another Party has access to and may make use of any public telecommunications network or service, including private leased circuits, provided in its territory or on a cross-border basis on reasonable and non-discriminatory terms and conditions, for the conduct of its business, as specified in paragraphs 2 through 7.
2. Subject to paragraphs 6 and 7, each Party shall ensure that persons of another Party are permitted:
a) purchase or lease and connect terminal equipment or other equipment that interfaces with the public telecommunications network;
b) interconnect private, leased or owned circuits with public telecommunications networks in that Party's territory or across its borders, including access by direct dial-up to and by its users or customers, or with leased or owned circuits of another person, on terms and conditions mutually accepted by such persons;
c) perform switching, signaling and processing functions; and d) use the operating protocols of their choice.
3. Without prejudice to the provisions of its existing legislation, each Party shall ensure that:
a) pricing for public telecommunication services reflects the economic costs directly related to the provision of such services; and
b) private leased circuits are available on a flat-rate basis.
4. The provisions of paragraph 3 shall not be construed to prevent cross-subsidization between public telecommunications services.
5. Each Party shall ensure that persons of another Party may use public telecommunications networks or services for the transmission of information in its territory or across its borders, including for intracorporate communications, and for access to information contained in databases or stored in any other machine-readable form in the territory of either Party.
6. Each Party may adopt any measure necessary to ensure the confidentiality and security of messages and the protection of the privacy of subscribers to public telecommunications networks or services.
7. Each Party shall ensure that no conditions are imposed on access to and use of public telecommunications networks or services other than those necessary to:
a) safeguarding the public service responsibilities of providers of public telecommunication networks or services, in particular their ability to make their networks or services available to the general public; or
b) protect the technical integrity of public telecommunications networks or services.
8. Provided that the conditions for access to and use of public telecommunications networks or services comply with the guidelines set forth in paragraph 7, such conditions may include:
a) restrictions on the resale or shared use of such services;
b) requirements to use specific technical interfaces, including interface protocols, for interconnection with the aforementioned networks or services;
c) restrictions on the interconnection of private circuits, leased or owned, with the aforementioned networks or services, or with circuits leased or owned by another person, when these are used for the supply of public telecommunication networks or services; and
d) procedures for granting licenses, permits, registrations or notifications that, if adopted or maintained, are transparent and whose processing of applications is resolved in accordance with the time limits established in the legislation of each Party.
Article 12-04. Conditions for the Provision of Enhanced or Value-added Services.
1. Each Party shall ensure that:
a) any procedures it adopts or maintains for granting licenses, permits, registrations or notifications concerning the supply of enhanced or value-added services are transparent and non-discriminatory and that applications are processed in accordance with the time limits established in each Party's legislation; and
b) the information required under such procedures is limited to that necessary to demonstrate that the applicant has the financial solvency to commence the provision of the service, or that the applicant's services, terminal or other equipment comply with the applicable technical standards or technical regulations of the Party.
2. Without prejudice to the provisions of its legislation in force, no Party shall require an enhanced or value-added service supplier:
a) to the general public;
b) justify their rates according to their costs;
c) register a fee;
d) interconnect its networks with any particular customer or network; or
e) satisfy any particular technical standard or regulation, for an interconnection other than interconnection with a public telecommunications network.
3. Notwithstanding the provisions of paragraph 2(c), each Party may require the filing of a fee to:
a) an enhanced or value-added service supplier, for the purpose of correcting a practice of that supplier that the Party, in accordance with its law, has found, in a particular case, to be anti-competitive; or
b) a monopoly, principal supplier or dominant operator, to which the provisions of article 12- 06 apply.
Article 12-05. Measures Relating to Standardization.
1. Each Party shall ensure that its measures relating to standardization that relate to the connection of terminal or other equipment to public telecommunications networks, including those measures that relate to the use of test and measurement equipment for the conformity assessment procedure, are adopted or maintained only to the extent necessary to:
a) avoid technical damage to public telecommunications networks;
b) avoid technical interference with or impairment of public telecommunications services;
c) avoid electromagnetic interference and ensure compatibility with other uses of the electromagnetic spectrum;
d) prevent malfunctioning of the billing equipment; or
e) guarantee the user's security and access to public telecommunication networks or services.
2. Each Party may establish the requirement of approval for the connection of terminal equipment or other equipment that is not authorized to the public telecommunications network, provided that the approval criteria are consistent with the provisions of paragraph 1.
3. Each Party shall ensure that the terminal points of public telecommunications networks are defined on a reasonable and transparent basis.
4. No Party shall require additional authorization for equipment to be connected on the consumer side, once the equipment has been authorized as a protective device meeting the criteria of paragraph 1.
5. Each Part:
a) ensure that its conformity assessment procedures are transparent and non-discriminatory and that applications for conformity assessment are processed in accordance with the deadlines established in its legislation;
b) allow any technically qualified entity to perform the required testing of terminal equipment or other equipment to be connected to the public telecommunications network, in accordance with the Party's conformity assessment procedures, subject to the Party's right to review the accuracy and completeness of the test results; and
c) ensure that any measures it adopts or maintains to authorize persons acting as agents of suppliers of equipment for the supply of telecommunications with the competent conformity assessment bodies of the Party.
6. No later than one year after the entry into force of this Agreement, each Party shall adopt, among its conformity assessment procedures, the necessary provisions to accept the results of tests carried out, based on its established standards and procedures, by laboratories located in the territory of another Party.
7. The Parties establish, in accordance with Article 15-17, a Subcommittee on Telecommunication Standardization Measures.
Article 12-06. Anti-competitive Practices.
1. Where a Party maintains or establishes a monopoly, principal supplier or dominant operator to provide public telecommunications networks and services, and it competes, directly or through an affiliate, in the supply of enhanced or value-added services or other goods or services related to telecommunications, the Party shall ensure that the monopoly, principal supplier or dominant operator does not use its position to engage in anti-competitive practices in those markets, either directly or through dealings with its affiliates, in a manner that adversely affects a person of another Party. Such practices may include cross-subsidization, predatory conduct and discriminatory access to public telecommunications networks and services.
2. Each Party shall endeavor to introduce or maintain effective measures to prevent the anticompetitive conduct referred to in paragraph 1, such as:
a) accounting requirements;
b) structural separation requirements;
c) rules to ensure that the monopoly, major supplier or dominant operator grants its competitors access to and use of its telecommunications networks or services on terms and conditions no less favorable than those it grants to itself or its affiliates; or
d) rules to ensure timely disclosure of technical changes to public telecommunications networks and their interfaces.
Article 12-07. Relationship with International Organizations and Agreements.
1. The Parties shall make their best efforts to encourage the role of regional and subregional organizations and promote them as forums for the development of telecommunications in the region.
2. The Parties, recognizing the importance of international standards in achieving global compatibility and interoperability of telecommunications networks or services, shall promote such standards through the work of relevant international bodies, such as the International Telecommunication Union and the International Organization for Standardization.
Article 12-08. Technical Cooperation and other Consultations.
1. In order to stimulate the development of interoperable telecommunications services infrastructure, the Parties shall cooperate in the exchange of technical information in the development of intergovernmental training programs, as well as in other related activities. In fulfilling this obligation, the Parties shall place special emphasis on existing coordination and exchange programs.
2. The Parties shall consult among themselves to determine the possibility of further liberalizing trade in all telecommunications services.
Article 12-09. Transparency.
In addition to the provisions of Article 17-02, each Party shall make publicly available measures relating to access to and use of public telecommunications networks or services, including measures relating to:
a) rates and other terms and conditions of service;
b) specifications of the technical interfaces with these services and networks;
c) information on the bodies responsible for the development and adoption of standardization measures affecting such access and use;
d) conditions applicable to the connection of terminal or other equipment to the public telecommunications network; and
e) any notification, permit, registration or licensing requirements.
Article 12-10. Relationship with other Chapters.
In case of incompatibility between the provisions of this chapter and any other provision of this treaty, the provisions of this chapter shall prevail to the extent of the incompatibility.
Chapter XIII. TEMPORARY ENTRY OF BUSINESS PEOPLE
Article 13-01. Definitions.
For the purposes of this chapter, the following definitions shall apply:
labor certification: the procedure carried out by the competent administrative authority to determine whether a foreign individual from one Party who intends to temporarily enter the territory of another Party displaces national labor in the same branch of employment or significantly impairs labor conditions therein;
temporary entry: the entry of a business person of one Party into the territory of another Party, without the intention of establishing permanent residence; immigration measure: any measure in the field of immigration;
business person: a national of a Party who engages in trade in goods or services, or in investment activities;
recurrent practice: a practice carried out by the immigration authorities of a Party on a repetitive basis during a representative period prior to and immediately following the implementation of the practice; and
in force: the binding quality of the legal precepts of the Parties at the time of entry into force of this treaty.
Article 13-02. General Principles.
The provisions of this chapter reflect the preferential commercial relationship between the Parties, the convenience of facilitating the temporary entry of business persons in accordance with the principle of reciprocity and the need to establish transparent criteria and procedures to that effect. They also reflect the need to ensure border security, particularly with respect to entry through authorized places for migratory transit, and to protect the labor of their nationals and permanent employment in their respective territories.
Article 13-03. General Obligations.
1. Each Party shall apply the measures relating to this Chapter in accordance with Article 13-02, in particular, it shall apply them expeditiously to avoid undue delay or prejudice to trade in goods and services, or to investment activities covered by this Agreement.
2. The Parties shall endeavor to develop and adopt common criteria, definitions and interpretations for the application of this chapter.
Article 13-04. Temporary Entry Authorization.
1. In accordance with the provisions of this Chapter, including those contained in Annex 13-04, each Party shall authorize the temporary entry of business persons who comply with the other applicable measures relating to public health and safety, as well as those relating to national security.
2. A Party may deny the issuance of a migration document authorizing activity or employment to a business person, in accordance with its legislation, when his temporary entry would adversely affect:
a) the settlement of any labor dispute at the place where she is or will be employed; or
b) employment of any person involved in such a conflict.
3. When a Party denies the issuance of a migration document authorizing activity or employment, in accordance with paragraph 2, that Party:
a) inform the affected business person in writing of the reasons for the refusal; and
b) shall promptly notify in writing the Party whose national is refused entry of the reasons for the refusal.
4. Each Party shall limit the amount of fees for processing requests for temporary entry to the approximate cost of services rendered.
5. The temporary entry of a business person does not authorize professional practice.
Article 13-05. Availability of Information.
1. In addition to the provisions of Article 17-02, each Party:
a) provide another Party with information to enable it to know the migratory measures; and
b) not later than one year after the date of entry into force of this Agreement, prepare, publish and make available, both in its territory and in the territory of another Party, a consolidated document explaining the requirements for temporary entry under this Chapter, so that business persons of another Party may become acquainted with them.
2. Each Party shall compile, maintain and make available to another Party, in accordance with its legislation, information regarding the granting of temporary entry authorizations, in accordance with this Chapter, to persons of another Party to whom immigration documentation has been issued. This compilation shall include information for each category authorized.
Article 13-06. Committee on Temporary Entry of Business Persons.
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