(a) in the case of Chile, the Undersecretariat of Public Health, through its Department of Nutrition and Food of the Division of Healthy Public Policies, or its successor; the National Fisheries and Aquaculture Service (SERNAPESCA), through its Sub-Directorate of Safety and Certification, or its successor; and the Agriculture and Livestock Service (SAG), through its Department of International Affairs, or its successor; and
(b) in the case of Paraguay, the Servicio Nacional de Calidad y Salud Animal (SENACSA), or its successor; and the Servicio Nacional de Calidad y Salud Vegetal y de Semillas (SENAVE), or its successor.
2. For the purposes of Article 4.12.1, the focal points shall be:
(a) in the case of Chile, the Undersecretariat for International Economic Relations, through its Trade Regulatory Aspects Division, or its successor, and
(b) in the case of Paraguay, the Directorate of International Trade of the Ministry of Agriculture and Livestock, or its successor.
Chapter 5. TECHNICAL BARRIERS TO TRADE
Article 5.1. Scope of Application
1. The provisions of this Chapter apply to the development, adoption and application of standards, technical regulations and conformity assessment procedures of the Parties, as defined in Annex I of the WTO Agreement on Technical Barriers to Trade (hereinafter referred to as the "TBT Agreement"), which may affect trade in goods between the Parties.
2. The provisions of this Chapter do not apply:
(a) sanitary and phytosanitary measures, which shall be governed by Chapter 4 (Sanitary and Phytosanitary Measures), or
(b) to government procurement specifications established by government agencies for the production or consumption needs of such agencies, which shall be governed by the national legislation of each Party.
3. The application of Article 50 of the Treaty of Montevideo of 1980, with respect to technical barriers to trade, shall be governed by the provisions of this Chapter.
Article 5.2. Objectives of the Chapter
The objectives of this Chapter are:
(a) recognize, reaffirm and promote the implementation and commitments undertaken by both Parties under the TBT Agreement by identifying, preventing and eliminating unnecessary technical barriers to trade;
(b) deepen integration and existing agreements between the Parties on technical barriers to trade;
(c) ensure that standards, technical regulations and conformity assessment procedures do not create unnecessary technical barriers to trade, and
(d) facilitate the exchange of information and cooperation in the field of technical regulations, standards and conformity assessment, including metrology and accreditation, between the Parties.
Article 5.3. Incorporation of the TBT Agreement
The TBT Agreement is incorporated into this Chapter and forms an integral part of this Agreement, mutatis mutandis.
Article 5.4. Standards
1. In determining whether an international standard, guidance or recommendation within the meaning of Articles 2 and 5 of the TBT Agreement and Annex 3 thereto exists, each Party shall consider the principles set out in the Decisions and Recommendations adopted by the WTO Committee on Technical Barriers to Trade since 1 January 1995, the Annex to Part I B, document G/TBT/1/Rev.14, dated 24 September 2019 issued by the WTO Committee on Technical Barriers to Trade or its successor.
2. For the purposes of this Chapter, "relevant international standards" as referred to in Article 2.4 of the TBT Agreement means standards developed by international standardizing bodies.
3. The Parties shall encourage their standardizing bodies, within their competence and subject to the availability of resources, to:
(a) cooperate with the relevant national and regional standardization bodies of the other Party in international standardization activities, and
(b) use relevant international standards as a basis for the standards they develop, except where such international standards are ineffective or inadequate.
Article 5.5. Joint Cooperation
1. The Parties shall strengthen joint cooperation in the areas of standards, technical regulations and conformity assessment procedures with the objective of facilitating trade in goods between them. In particular, the Parties shall seek to identify bilateral initiatives that are appropriate for particular issues or sectors.
2. The Parties recognize the existence of a wide range of mechanisms to support regulatory cooperation and to prevent and eliminate unnecessary technical barriers to trade between the Parties, which they promote:
(a) bilateral dialogue with the aim of:
(i) exchange information on regulatory practices and approaches to improve knowledge and understanding of their respective regulatory systems;
(ii) promote the use of good regulatory practices to improve the efficiency and effectiveness of standards, technical regulations and conformity assessment procedures, and
(iii) provide technical assistance to the other Party on mutually agreed terms and conditions, for the improvement of practices related to the elaboration, implementation and revision of standards, technical regulations, conformity assessment procedures, accreditation and metrology;
(b) the use of relevant international standards, guides and recommendations as a basis for technical regulations and conformity assessment procedures, to the extent possible, except where inappropriate or ineffective, as well as the promotion of harmonization of national standards with relevant international standards, and
(c) the dissemination and exchange of experience and information regarding the possibility of accepting as equivalent the technical regulations of the other Party.
3. The Parties recognize that the choice of appropriate mechanisms in a given regulatory context will depend on a variety of factors, such as the product and sector involved, the relationship between the Parties' respective regulators, the legitimate objectives pursued, and the risks of not achieving those objectives.
4. The Parties shall seek to strengthen information exchange and collaboration on mechanisms to facilitate the acceptance of conformity assessment results.
5. The Parties shall encourage cooperation between both public and private bodies responsible for standardisation, conformity assessment and accreditation, with a view to addressing various matters covered by this Chapter.
6. For joint cooperation under this Article, if necessary and if the Parties so agree, they may facilitate the participation of teams of technical experts to facilitate the exchange of information concerning their conformity assessment schemes and systems of each Party's regulatory regime, in order to enhance mutual understanding.
Article 5.6. Technical Regulations
1. The Parties agree to make use of good regulatory practices with respect to the preparation, adoption and application of technical regulations, as provided for in the TBT Agreement.
2. Parties shall strengthen the role of relevant international standards as a basis for their technical regulations, including conformity assessment procedures.
3. Where a technical regulation has not considered the use of international standards as a basis for its development, and its development may have a significant effect on trade, a Party may request the other Party to provide the reasons why it has considered international standards to be inappropriate or ineffective for the objective pursued.
4. When the regulatory authority of a Party detains at the port of entry a good originating in the territory of the other Party because of a failure to comply with a technical regulation, it shall, as soon as practicable, notify the importer or the respective customs broker of the reasons for the detention.
Article 5.7. Conformity Assessment
1. Recognizing that differences in conformity assessment procedures may exist among the Parties, the Parties shall endeavour to make conformity assessment procedures compatible to the greatest extent possible with international standards and with the provisions of this Chapter.
2. The Parties recognize that there are different mechanisms that facilitate the acceptance in the territory of one Party of the results of conformity assessment conducted in the territory of the other Party. These mechanisms could include:
(a) voluntary agreements between conformity assessment bodies located in the territory of both Parties;
(b) agreements on acceptance of the results of conformity assessment procedures with respect to specific technical regulations, carried out by specific bodies located in the territory of the other Party;
(c) accreditation procedures for qualifying conformity assessment bodies;
(d) governmental approval or designation of conformity assessment bodies, and
(e) recognition of the results of conformity assessments carried out in the territory of the other Party, and acceptance by the importing Party of the supplier's declaration of conformity, provided that both are consistent with its legal system.
3. The Parties shall intensify their exchange of information in relation to these and similar mechanisms to facilitate the acceptance of conformity assessment results.
4. The Parties recognize that the choice of appropriate mechanisms will depend on the institutional structure and legal provisions in place in each Party within the framework of the obligations set out in the TBT Agreement.
5. In the event that a Party does not accept the results of conformity assessment procedures carried out in the territory of the other Party, it shall, upon request of the latter Party, explain the reasons for its decision so that corrective action may be taken if necessary.
6. A Party may, on request of the other Party, give favourable consideration to the recognition of results of conformity assessment procedures carried out by bodies located in the territory of the other Party.
7. In order to enhance mutual confidence in the results of conformity assessment, either Party may request information on aspects such as the technical competence of the conformity assessment bodies involved.
8. Each Party shall accord to subsidiaries of the other Party's conformity assessment bodies located in its territory treatment no less favourable than that accorded to its own conformity assessment bodies.
Article 5.8. Transparency
1. The Parties reaffirm their transparency obligations under the TBT Agreement with respect to the preparation, adoption and application of standards, technical regulations and conformity assessment procedures.
2. The Parties agree:
(a) consider the views of the other Party during the public consultation stage of the publication of draft technical regulations, and conformity assessment procedures;
(b) ensure that economic operators and other interested persons of the other Party may participate in any formal public consultative process regarding draft technical regulations and conformity assessment procedures;
(c) when making notifications pursuant to Article 2.2 of the TBT Agreement, allow at least sixty (60) days for the other Party to submit written comments on the proposal, except where urgent problems threaten or arise;
(d) where possible, the Parties shall give due consideration to justified requests for extensions of the comment period; and
(e) subject to the conditions specified in Article 2.12 of the TBT Agreement on the reasonable period of time between the publication of technical regulations and their entry into force, the Parties shall understand the term "reasonable period of time" to mean normally a period of not less than six (6) months, except where the legitimate objectives pursued cannot feasibly be achieved within that period.
3. Each Party shall ensure that existing mandatory technical regulations and conformity assessment procedures are publicly available on an official website.
4. The Parties shall notify each other electronically, through the contact point established by each Party, and in accordance with Article 10 of the TBT Agreement, of draft and amended technical regulations and conformity assessment procedures, as well as those adopted to address urgent problems under the terms of the TBT Agreement, at the same time as they send the notification to the WTO Central Registry of Notifications. Such notification shall include an electronic link to the notified document, or a copy thereof.
5. Parties should notify even those draft technical regulations and conformity assessment procedures that are consistent with the technical content of relevant international standards.
6. Each Party shall provide a formal response to comments received from the other Party, during the consultation period specified in the notification, no later than the date of publication of the adopted technical regulation or conformity assessment procedure.
Article 5.9. Exchange of Information
Any information or explanation requested by a Party under the provisions of this Chapter shall be provided by the other Party in printed or electronic form within sixty (60) days of the date of the request
Article 5.10. Committee on Technical Barriers to Trade
1. The Parties hereby establish a Committee on Technical Barriers to Trade (hereinafter referred to as the "Committee"), which shall be composed of:
(a) in the case of Chile, by representatives of the Undersecretariat for International Economic Relations of the Ministry of Foreign Affairs, or its successor, and
(b) in the case of Paraguay, by representatives of the National Committee on Technical Barriers to Trade, coordinated by the Ministry of Industry and Trade, or its successor.
2. The functions of the Committee shall include:
(a) monitor the implementation and administration of this Chapter;
(b) address matters that a Party proposes with respect to the development, adoption, application, implementation, or enforcement of standards, technical regulations, or conformity assessment procedures;
(c) promote cooperation in the development and improvement of standards, technical regulations or conformity assessment procedures;
(d) facilitate sectoral cooperation between governmental and non-governmental entities on standards, technical regulations and conformity assessment procedures in the territories of the Parties;
(e) exchange information about work being carried out in non-governmental, regional, multilateral fora and cooperative programmes involved in activities related to standards, technical regulations and conformity assessment procedures;
(f) review this Chapter in the light of developments in the WTO Committee on Technical Barriers to Trade and develop recommendations to amend this Chapter, if necessary;
(g) report to the Bilateral Administrative Commission on the implementation of this Chapter;
(h) establish, as necessary for particular issues or sectors, working groups to address specific matters related to this Chapter and the TBT Agreement;
(i) to address, at the request of a Party, technical consultations on any matter arising under this Chapter;
(j) establish working groups to address issues of interest in the field of regulatory cooperation, and
(k) take such other action as the Parties may agree, related to the implementation of this Chapter and the TBT Agreement.
3. Upon request, the Committee shall give sympathetic consideration to any sector- specific proposal by a Party to deepen joint cooperation under this Chapter.
4. The Committee shall meet at such times, places and times as may be necessary at the request of the Parties. Meetings shall be held in person, by teleconference, videoconference or by any other means agreed by the Parties.
5. In order to order its functioning, the Committee shall establish its own rules of procedure, if possible during its first meeting. The Committee may revise these rules by consensus, as it deems appropriate.
Article 5.11. Technical Consultations
1. Each Party shall give prompt and positive consideration to any request by the other Party for consultations on specific trade concerns relating to the implementation of this Chapter.
2. Each Party shall ensure the participation, as appropriate, of representatives of its competent governmental regulatory authorities within the scope of this Chapter.
3. Where the Parties have resorted to consultations under this Article, such consultations shall be in lieu of consultations under Article 17.4 (Consultations).
Chapter 6. TRADE IN SERVICES
Article 6.1. Definitions
For the purposes of this Chapter:
trade in services means the supply of a service:
(a) from the territory of one Party into the territory of the other Party;
(b) in the territory of a Party, by a person of that Party to a person of the other Party;
(c) by a service supplier of a Party through commercial presence in the territory of the other Party, or
(d) by a service supplier of a Party through the presence of natural persons of a Party in the territory of the other Party;
measures adopted or maintained by a Party means measures adopted or maintained by:
(a) governments or authorities at the central, regional or local level of a Party, and
(b) non-governmental bodies in the exercise of powers delegated by governments or authorities at the central, regional or local level of a Party;
legal entity means any legal entity duly constituted or otherwise organized under applicable law, whether or not for profit and whether privately or publicly owned, including any corporation, trusi, partnership, joint venture, sole proprietorship or association;
natural person of a Party means a national of a Party under its law or residing in the territory of that Party;
commercial presence means any type of commercial or professional establishment, through, among other means:
(a) the incorporation, acquisition or maintenance of a legal person, or
(b) the establishment or maintenance of a branch or representative office within the territory of one of the parties for the purpose of supplying a service;
service supplier of a Party means any natural or juridical person of that Party that intends to supply or does supply a service;
aircraft repair and maintenance service means such activities when performed on an aircraft or part of an aircraft while the aircraft is out of service and does not include so- called line maintenance;
computer reservation system services means services provided by means of computerised systems which contain information about air carriers' schedules, seat availability, fares and pricing rules and by means of which reservations can be made or tickets issued;
financial services is defined as set out in the GATS Annex on Financial Services;
services supplied in the exercise of governmental authority means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers;
sale and marketing of air transport services means the opportunities for the air carrier concerned to freely sell and market its air transport services, including all aspects of marketing, e.g. market research, advertising and distribution. These activities do not include the pricing of air transport services or the applicable conditions.
Article 6.2. Scope of Application
1. This Chapter shall apply to measures adopted or maintained by a Party affecting trade in services supplied by service suppliers of the other Party. Such measures include measures affecting:
(a) the production, distribution, marketing, sale and supply of a service;
(b) the purchase or use of, or payment for, a service;
(c) access to and use of distribution, transmission or telecommunications networks and services related to the provision of a service;
(d) the presence, including commercial presence, in the territory of a Party of a service supplier of the other Party, and
(e) the provision of a bond or other form of financial security as a condition for the provision of a service.
2. This Chapter does not apply to:
(a) financial services;
(b) air services, including domestic and international air transport services, scheduled and non-scheduled, and related support services for air services, except:
(i) the sale and marketing of air transport services;
(ii) computer reservation system (CRS) services, and
(iii) aircraft repair and maintenance services;
(c) public procurement;
(d) subsidies or grants provided by a Party or a State enterprise, including government-supported loans, guarantees and insurance;
(e) services supplied in the exercise of governmental authority in the territory of each Party, nor to
(f) navigation of inland rivers.
3. This Chapter does not impose any obligation on a Party with respect to a national of the other Party who seeks to enter its labor market or who is permanently employed in its territory, nor does it confer any rights on that national with respect to such access or employment.
4. This Chapter shall not prevent a Party from applying measures to regulate the entry or temporary stay of natural persons of the other Party in its territory, including those measures necessary to protect the integrity of natural persons and to ensure the orderly movement of natural persons across its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to the other Party pursuant to the terms of a specific commitment (1).
Article 6.3. National Treatment
1. In the sectors inscribed in Annexes 6.1 and 6.2 (Schedules of Specific Commitments), and subject to such conditions and qualifications as may be contained therein, each Party shall accord to services and service suppliers of the other Party, with respect to all measures covered by this Chapter affecting the supply of services, treatment no less than favourable than the one it grants to its own similar services and similar service providers (2).
2. Treatment accorded by a Party in accordance with paragraph 1 means, with respect to a regional, or local level government, treatment no less favourable than the most favourable treatment accorded by that regional, or local level government to services and service suppliers of the Party of which it is a constituent part.
3. A Party may meet the requirements of paragraph 1 by according the services and service suppliers of the other Party treatment formally identical to or formally different from that it accords to its own like services and service suppliers.
4. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of the other Party as compared to like services or service suppliers of the other Party.
Article 6.4. Market Access
In sectors where market access commitments are undertaken and subject to the conditions set out in Annexes 6.1 and 6.2 (Schedules of Specific Commitments), no Party may adopt or maintain, on the basis of a regional subdivision or its entire territory, measures that:
(a) impose limitations:
(i) to the number of service suppliers, either in the form of numerical quotas, monopolies, exclusive service suppliers or by requiring an economic needs test;
(ii) to the total value of assets or service transactions in the form of numerical quotas or by requiring an economic needs test;
(iii) to the total number of service operations or the total quantity of service output, expressed in designated numerical units, in the form of quotas or by requiring an economic needs (3) test ;
(iv) the total number of natural persons who may be employed in a given service sector or who may be employed by a service supplier and who are necessary for and directly related to the supply of a specific service, in the form of numerical quotas or through the requirement of an economic needs test, or