Annex 13.4. Temporary Entry for Business Persons
Section I. Business Visitors
1. Each Party shall grant temporary entry to a business person secking to engage in a business activity set out in Appendix 13.4.1.1, without requiring that person to obtain an employment authorization, provided that the business person otherwise complies with existing immigration measures applicable to temporary entry, on presentation of:
(a) proof of citizenship of a Party;
(b) documentation demonstrating that the business person will be so engaged and describing the purpose of entry; and
(c) evidence demonstrating that the proposed business activity is international in scope and the business person is not seeking to enter the local labour market.
2. Each Party shall provide that a business person may satisfy the requirements of subparagraph 1(c) by demonstrating that:
(a) the primary source of remuneration for the proposed business activity is outside the territory of the Party granting temporary entry; and
(b) the business person's principal place of business and the actual place of accrual of profits, at least, predominantly, remain outside such a territory.
3. Each Party shall grant temporary entry to a business person seeking to engage in a business activity other than those set out in Appendix 13.4.1.1, without requiring that person to obtain an employment authorization, on a basis no less favourable than that provided under the existing provisions of the measures set out in Appendix 13.4.1.3, provided that the business person otherwise complies with existing immigration measures applicable to temporary entry.
4. Neither Party may:
(a) as a condition for temporary entry under paragraph 1 or 3, require prior approval procedures, petitions, labour certification tests or other procedures of similar effect; or
(b) impose or maintain any numerical restriction relating to temporary entry under paragraph 1 or 3.
5. Notwithstanding paragraph 4, a Party may require a business person seeking temporary entry under this Section to obtain a visa or its equivalent in accordance with its domestic immigration law prior to entry. Before imposing the visa requirement, the Party shall consult with the other Party with a view to avoiding the imposition of the requirement. With respect to an existing visa requirement, a Party shall consult, upon request, with the other Party with a view to its removal.
Section II. Traders and Investors
1. Each Party shall grant temporary entry and provide confirming documentation to a business person seeking to:
(a) carry on substantial trade in goods or services principally between the territory of the Party of which the business person is a citizen and the territory of the other Party into which entry is sought, or
(b) establish, develop, administer or provide advice or key technical services to the operation of an investment to which the business person or the business person's enterprise has committed, or is in the process of committing, a substantial amount of capital,
in a capacity that is supervisory or executive, or involves essential skills, provided that the business person otherwise complies with existing immigration measures applicable to temporary entry.
2. Neither Party may: (a) as a condition for temporary entry under paragraph 1, require labour certification tests or other procedures of similar effect; or
(b) impose or maintain any numerical restriction relating to temporary entry under paragraph 1.
3. Notwithstanding paragraph 2, a Party may require a business person seeking temporary entry under this Section to obtain a visa or its equivalent in accordance with its domestic immigration law prior to entry. Before imposing the visa requirement, the Party shall consult with the other Party with a view to avoiding the imposition of the requirement. With respect to an existing visa requirement, a Party shall consult, upon request, with the other Party with a view to its removal.
Section III. Intra-Company Transferees
1. Each Party shall grant temporary entry and provide confirming documentation to a business person employed by an enterprise who seeks to render services to that enterprise of a Party or a subsidiary or affiliate thereof, in a capacity that is managerial, executive or involves specialised knowledge, provided that the business person otherwise complies with existing immigration measures applicable to temporary entry. A Party may require the business person to have been employed continuously by the enterprise for one year within the three-year period immediately preceding the date of the application for admission.
2. Neither Party may:
(a) as a condition for temporary entry under paragraph 1, require labour certification tests or other procedures of similar effect; or
(b) impose or maintain any numerical restriction relating to temporary entry under paragraph 1.
3. Notwithstanding paragraph 2, a Party may require a business person seeking temporary entry under this Section to obtain a visa or its equivalent in accordance with its domestic immigration law prior to entry. Before imposing visa requirement, the Party shall consult with the other Party with a view to avoiding the imposition of the requirement. With respect to an existing visa requirement, a Party shall consult, upon request, with the other Party with a view to its removal.
Annex 13.4.1.
In the case of Chile:
1. Business persons who enter Chile under any of the categories set out in Annex 13.4 shall be deemed to be engaged in activities which are in the country's interest.
2. Business persons who enter Chile under any of the categories set out in Annex 13.4 are issued with a temporary resident visa for a period up to one year. Such a temporary visa may be extended for subsequent periods, provided the conditions on which it is based remain in effect, without requiring that person to apply for permanent residence.
3. Business persons who enter Chile may also obtain an identity card for foreigners.
4. Business persons who enter Chile under any of the categories set out in Annex 13.4 may freely enter and leave Chile without re-entry permission during the validity of their visas on the basis of reciprocity.
In the case of Korea:
1. Business visitors who enter Korea under Section I of Annex 13.4 are issued with a short- term business visa (C-2) for a period of up to six months. A change of visa status to that of an intra-company transferee visa (D-7), investment visa (D-8) or trade management visa (D-9), may be permitted, if the activities of the business visitors satisfy the conditions under Sections II and Ill of Annex 13.4.
2. Investors and traders who enter Korea under Section II of Annex 13.4 are issued with an investment visa (D-8) or a trade and management visa (D-9), respectively, for a period of up to one year. These visas may be extended for subsequent periods provided the conditions on which they are based remain in effect.
3. Intra-company transferees who enter Korea under Section II of Annex 13.4 are issued with an intra-company transferee visa (D-7) for a period of up to one year. This visa may be extended for subsequent periods provided the conditions on which it is based remain in effect.
4. Business persons who enter Korea under any of the categories set out in Annex 13.4 may freely enter and leave Korea without re-entry permission during the validity of their visa on the basis of the reciprocity.
5. Business persons who intend to stay over 90 days in Korea shall register the aliens registration at the competent immigration office.
Appendix 13.4.1.1. Business Visitors
1. For purposes of this Appendix, "territory of the other Party" means the territory of the Party other than the territory of the Party into which temporary entry is sought.
2. Business activities referred to in Section I.1 of Annex 13.4 are:
Research and Design
- Technical, scientific and statistical researchers conducting research for an enterprise located in the territory of the other Party.
Growth, Manufacture and Production
- Purchasing and production management personnel conducting commercial transactions for an enterprise located in the territory of the other Party.
Marketing
- Market researchers and analysts conducting analysis or research for an enterprise located in the territory of the other Party.
- Trade fair and promotional personnel attending a trade convention.
Sales
- Sales representatives and agents taking orders or negotiating contracts for goods or services for an enterprise located in the territory of the other Party but not delivering goods or providing services.
- Buyers purchasing for an enterprise located in the territory of the other Party.
Distribution
- Customs brokers providing consulting services regarding the facilitation of the import or export of goods.
After-Sales Service
- Installers, repair and maintenance personnel, and supervisors, possessing specialised knowledge essential to a seller's contractual obligation, performing services or training workers to perform services, pursuant to a warranty or other service contract incidental to the sale of commercial or industrial equipment or machinery, including computer software, purchased from an enterprise located outside the territory of the Party into which temporary entry is sought, during the life of the warranty or service agreement.
General Service
- Consultants engaging in a business activity at the cross-border services provision level. . Management and supervisory personnel engaging in a commercial transaction for an enterprise located in the territory of the other Party.
- Financial services personnel (insurers, bankers or investment brokers) engaging in commercial transactions for an enterprise located in the territory of the other Party. Public relations and advertising personnel consulting with business associates, or attending or participating in conventions.
- Tourism personnel (tour and travel agents, tour guides or tour operators) attending or participating in conventions or conducting a tour that has begun in the territory of the other Party.
- Translators or interpreters performing services as employees of an enterprise located in the territory of the other Party.
Appendix 13.4.1.3.
Existing Immigration Measures
1. In the case of Chile, Title I, paragraph 6 of Decree Law 1094, Official Gazette, July 19, 1975, Immigration Law ("Decreto Ley 1094, Diario Oficial, julio 19, 1975, Ley de Extranjeria"), and Title I of Immigration Regulation ("Decreto Supremo 597 del Ministerio del Interior, Diario Oficial noviembre 24, 1984, Reglamento de Extranjeria").
2. Inthe case of Korea, Immigration Law Article 7 and Article 8 (amended February 5, 1999), Immigration Law Enforcement Ordinance Article 7, Article 11 and Article 12 (amended November 27, 1999), Immigration Law Enforcement Regulations Article 8, Article 9, Article 10, Article 13, Article 18, Article 71 and Article 76 (amended December 2, 1999), Visa Issuance Procedure for Short-Term Business (C-2), Short-Term Visitors (C-3).
Chapter 14. COMPETITION
Article 14.1. Definitions
For the purpose of this Chapter:
competition laws includes:
(a) for Chile, Decree Law N° 211 of 1973 and Law N° 19.610 of 1999 and their implementing regulations or amendments;
(b) for Korea, the Monopoly Regulation and Fair Trade Act (Law no. 3320, 1980) and its implementing regulations and amendments; and (c) any changes that the legislations in subparagraphs (a) and (b) may undergo after the conclusion of this Agreement;
competition authority means:
(a) for Chile, the "Fiscalia Nacional Económica"; and
(b) for Korea, the Fair Trade Commission; and
enforcement activity means any application of competition laws by way of investigation or proceeding conducted by the competition authority of a Party, which may result in the imposition of penalties or remedies.
Article 14.2. Objectives
1. The Parties undertake to apply their respective competition laws in a manner consistent with this Chapter so as to avoid that the benefits of the liberalization process in goods and services may be diminished or cancelled out by anti-competitive business conduct. To this end, the Parties agree to cooperate and coordinate between their competition authorities under the provisions of this Chapter.
2. With a view to preventing distortions or restrictions on competition which may affect trade in goods or services between them, the Parties shall give particular attention to anti-competitive agreements, concerted practices and abusive behavior resulting from single or joint dominant positions.
3. The Parties agree to cooperate and coordinate between themselves for the implementation of competition laws. This cooperation includes notification, consultation, exchange of non- confidential information and technical assistance. The Parties acknowledge the importance of embracing principles on competition that would be accepted by both Parties in multilateral fora, including the WTO.
Article 14.3. Notifications
1. Each competition authority shall notify the competition authority of the other Party of an enforcement activity if it:
(a) is liable to substantially affect the other Party's important interests;
(b) relates to restrictions on competition which are liable to have a direct and substantial effect in the territory of the other Party; or
(c) concerns anti-competitive acts taking place principally in the territory of the other Party.
2. Provided that it is not contrary to the Parties' competition laws and does not affect any investigation being carried out, notification shall be given at an early stage of the procedure. The opinions received may be taken into consideration by the other competition authority when taking decisions.
3. The notifications given under paragraph 1 should be detailed enough to permit an evaluation in the light of the interests of the other Party.
4. The Parties undertake to exert their best efforts to ensure that notifications are made in the circumstances set out above, taking into account the administrative resources available to them.
Article 14.4. Coordination of Enforcement Activities
The competition authority of a Party may notify the other Party's competition authority of its intention to coordinate enforcement activities with respect to a specific case. This coordination shall not prevent the Parties from taking autonomous decisions.
Article 14.5. Consultations When the Important Interests of a Party Are Adversely Affected In the Territory of the other Party
1. Each Party shall, in accordance with its laws, take into consideration, as necessary, the important interests of the other Party in the course of its enforcement activities. If the competition authority of a Party considers that an investigation or proceeding being conducted by the competition authority of the other Party may adversely affect such a Party's important interests, it may transmit its views on the matter to, or request consultation with, the other competition authority. Without prejudice to the continuation of any action under its competition laws and to its full freedom of ultimate decision, the competition authority so addressed should give full and sympathetic consideration to the views expressed by the requesting competition authority.
2. The competition authority of a Party that considers that its interests are being substantially and adversely affected by anti-competitive practices of whatever origin that are or have been engaged in by one or more enterprises located in the other Party may request consultations with the competition authority of that Party. Such consultations are without prejudice to the full freedom of ultimate decision of the competition authority concerned. A competition authority so consulted may take whatever corrective measures under its competition laws, which it deems appropriate, consistent with its own domestic law, and without prejudice to its full enforcement discretion.
Article 14.6. Exchange of Information and Confidentiality
1. With a view to facilitating the effective application of their respective competition laws, the competition authorities may exchange non-confidential information.
2. For the purpose of improving transparency, and without prejudice to the rules and standards of confidentiality applicable in each Party, the Parties hereby undertake to exchange information regarding sanctions and remedies applied in the cases that, according to the competition authority concerned, are significantly affecting important interests of the other Party and to provide the grounds on which those actions were taken, when requested by the competition authority of the other Party.
3. All exchange of information shall be subject to the standards of confidentiality applicable in each Party. Confidential information whose dissemination is expressly prohibited or which, if disseminated, could adversely affect the interest of the Parties, shall not be provided without the express consent of the source of the information.
4. Each competition authority shall maintain the confidentiality of any information provided to it in confidence by the other competition authority, and shall not disclose such information to any entity that is not authorised by the competition authority that supplied the information.
5. Notwithstanding the above provisions of this Article, where the laws of the Parties so provides, confidential information may be provided to their respective courts of justice, provided that confidentiality is maintained by the courts.
Article 14.7. Technical Assistance
The Parties may provide each other with technical assistance in order to take advantage of their respective experiences and to strengthen the implementation of their competition laws and policies.
Article 14.8. Public Enterprises and Enterprises Entrusted with Special or Exclusive Rights, Including Designated Monopolies
1. Nothing in this Chapter prevents the Parties from designating or maintaining public or private monopolies according to their respective laws.
2. With regard to public enterprises and enterprises to which special or exclusive rights have been granted, including designated monopolies, the Commission shall ensure that, following the date of entry into force of this Agreement, such enterprises shall be subject to the rules of competition, insofar as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them.
Article 14.9. Dispute Settlement
Neither Party may have recourse to dispute settlement procedures under Chapter 19 for any matter arising under this Chapter.
Title IV. GOVERNMENT PROCUREMENT
Chapter 15. GOVERNMENT PROCUREMENT
Article 15.1. Definitions
For Purposes of this Chapter:
Entity Means an Entity of a Party Covered In Annex 15.1;
government procurement means the process by which a government, through any contractual means, obtains the use of or acquires goods or services, or any combination thereof, for governmental purposes and not with a view to commercial sale or resale, or use in the production or supply of goods or services for commercial sale or resale;
offsets means those conditions imposed or considered by an entity prior to, or in the course of its procurement process, that encourage local development or improve its Party's balance of payments accounts by means of requirements of local content, licensing of technology, investment, counter-trade or similar requirements;
open tendering procedures means those procedures whereby any interested supplier may submit a tender;
privatisation means a process by means of which a public entity is no longer subject to government control, whether by public tender of the shares of that entity or otherwise, as contemplated in the respective Party's legislation in force;
public works concession and build-operate-transfer contract means a contract of the same type as the public works procurement contract, except for the fact that the remuneration for the works to be carried out consists either solely of the right to exploit the construction or in such a right together with a payment;
supplier means a natural or legal person that provides or could provide goods or services to an entity;
technical specifications means a specification, which lays down the characteristics of the products or services to be procured, such as quality, performance, safety and dimensions, symbols, terminology, packaging, marking and labelling, or the processes and methods for their production and requirements relating to conformity assessment procedures prescribed by procuring entities; and
tenderer means a supplier who has submitted a tender.
Article 15.2. Scope and Coverage
1. This Chapter applies to measures adopted or maintained by a Party relating to procurement by an entity, by any contractual means, including purchase and rental or lease, with or without an option to buy, subject to the conditions specified in Annexes 15.1 and 15.2. For purposes of this Chapter, public works concession and build-operate-transfer contracts shall be considered as procurement.
2. This Chapter does not apply to:
(a) non-contractual agreements or any form of assistance provided by a Party or a state enterprise, including grants, loans, fiscal incentives, subsidies, guarantees, cooperative agreements, government provision of goods and services to persons or to state, regional or local governments, and purchases for the direct purpose of providing foreign assistance;
(b) purchases funded by international grants, loans or other assistance, where the provision of such assistance is subject to conditions inconsistent with the provisions of this Chapter;
(c) hiring of government employees and hiring of entitiesâ other long-term staff and personnel, and related employment measures; and
(d) financial services.
3. Neither Party may prepare, design or otherwise structure any procurement contract in order to avoid the obligations under this Chapter.
Article 15.3. National Treatment and Non-Discrimination
1. Each Party shall ensure that the procurement of its entities covered by this Chapter takes place in a transparent, reasonable and non-discriminatory manner, treating any supplier of either Party equally and ensuring the principle of open and effective competition.
2. With respect to any laws, regulations, procedures and practices regarding government procurement covered by this Chapter, each Party shall grant the goods, services and suppliers of the other Party a treatment no less favourable than that accorded by it to domestic goods, services and suppliers.
3. With respect to any laws, regulations, procedures and practices regarding government procurement covered by this Chapter, each Party shall ensure:
(a) that its entities do not treat a locally-established supplier less favourably than any other locally-established supplier on the basis of the degree of foreign affiliation to, or ownership by, a person of the other Party; and
(b) that its entities do not discriminate against a locally-established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of the other Party.
4. This Article shall not apply to measures concerning customs duties or other charges of any kind imposed on, or in connection with importation, the method of levying such duties and charges, other import regulations, including restrictions and formalities, nor to measures affecting trade in services other than measures specifically governing procurement covered by this Chapter.
Article 15.4. Prohibition of Offsets
Each Party shall ensure that its entities do not, in the qualification and selection of suppliers, goods or services, in the evaluation of bids or in the award of contracts, consider, seek or impose offsets.
Article 15.5. Transparency
1. Each Party shall promptly publish any law, regulation, judicial decision and administrative ruling of general application and procedure, including standard contract clauses, regarding procurement covered by this Chapter, in the appropriate publications, including officially designated electronic media.
2. Each Party shall promptly publish in the same manner as in paragraph 1 any modification to such measures therein.
Article 15.6. Tendering Procedures
1. Entities shall award their public contracts by open tendering procedures according to their respective domestic procedures, in compliance with this Chapter and in a non-discriminatory manner.
2. Provided that the tendering procedure is not used to avoid competition or to protect domestic suppliers, entities shall be allowed to award contracts by means other than an open tendering procedure in the following circumstances and subject to the following conditions, where applicable:
(a) in the absence of tenders that conform to the essential requirements in the tender documentation provided in a prior tendering procedure, including any conditions for participation, provided that the requirements of the initial procurement are not substantially modified in the contract as awarded;
(b) where, for works of art, or for reasons connected with the protection of exclusive rights, such as patents, copyrights or proprietary information or in the absence of competition for technical reasons, the goods or services can be supplied only by a particular supplier and no reasonable alternative or substitute exists;
(c) for additional deliveries by the original supplier that are intended either as replacement parts, extensions, or continuing services for existing equipment, software, services or installations, where a change of supplier would compel the entity to procure goods or services not meeting requirements of interchangeability with existing equipment, software, services, or installations;
(d) for quoted goods purchased on a commodity market and for purchases of goods made under exceptionally advantageous conditions, which only arise in the very short term in the case of unusual disposals, and not for routine purchases from regular suppliers;
(e) when an entity procures prototypes or a first good or service which are developed at its request in the course of, and for, a particular contract for research, experiment, study or original development;
(f) when additional construction services which were not included in the initial contract but which were within the objectives of the original tender documentation have, due to unforeseeable circumstances, become necessary to complete the construction services described therein, provided that the total value of contracts awarded for additional construction services does not exceed 50 per cent of the amount of the main contract; or
(g) insofar as it is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the entity, the goods or services could not be obtained in time under an open tendering procedure and the use of such procedure would result in serious injury to the entity, the entity's program responsibilities or the responsible Party. This exception may not be used as a result of a lack of advance planning or concerns relating to the amount of funds available to an entity within a particular period of time.
3. The Parties shall ensure that, whenever it is necessary for entities to resort to a procedure other than open tendering procedures based on the circumstances set forth in paragraph 2, the entities shall maintain a record or prepare a written report providing specific justification for the contract.