(o) provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services;
(p) advisory, intermediation, and other auxiliary financial services on all the activities listed in subparagraphs (e) through (o), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy;
financial service supplier of a Party means a person of a Party that is engaged in the business of supplying a financial service within the territory of that Party;
investment means "investment" as defined in Article 838 (Investment-Definitions), except that, with respect to "loans" and "debt instruments" referred to in that Article:
(a) a loan to or debt instrument issued by a financial institution is an investment only where it is treated as regulatory capital by the Party in whose territory the financial institution is located; and
(b) a loan granted by or debt instrument owned by a financial institution, other than a loan to or debt instrument of a financial institution referred to in subparagraph (a), is not an investment;
for greater certainty:
(c) a loan to, or debt instrument issued by, a Party or a state enterprise thereof is not an investment; and
(d) a loan granted by or debt instrument owned by a cross-border financial service supplier, other than a loan to or debt instrument issued by a financial institution, is an investment if such loan or debt instrument meets the criteria for investments set out in Article 838 (Investment-Definitions);
investor of a Party means "investor of a Party" as defined in Article 838 (Investment - Definitions);
new financial service means a financial service not supplied in the Party's territory that is supplied within the territory of the other Party, and includes any new form of delivery of a financial service or the sale of a financial product that is not sold in the Party's territory;
person of a Party means "person of a Party" as defined in Article 106 (Initial Provisions and General Definitions - Definitions of General Application) and, for greater certainty, does not include a branch of an enterprise of a non-Party;
public entity means a central bank or monetary authority of a Party, or any financial institution owned or controlled by a Party; for greater certainty, a public entity shall not be considered a designated monopoly or a state enterprise for the purposes of Chapter Thirteen (Competition Policy, Monopolies and State Enterprises); and
self-regulatory organization means any non-governmental body, including any securities or futures exchange or market, clearing agency, other organization or association, that exercises its own or delegated regulatory or supervisory authority over financial service suppliers or financial institutions; for greater certainty, a self-regulatory organization shall not be considered a designated monopoly for purposes of Chapter Thirteen (Competition Policy, Monopolies and State Enterprises).
Chapter Twelve. Temporary Entry for Business Persons
Article 1201. General Principles
Further to Article 1202, this Chapter reflects the preferential trading relationship between the Parties, the mutual objective to facilitate temporary entry for business persons on a reciprocal basis and in accordance with Annex 1203, and the need to establish transparent criteria and procedures for temporary entry and the need to ensure border security and to protect the domestic labour force and permanent employment in their respective territories.
Article 1202. General Obligations
1. Each Party shall apply its measures relating to the provisions of this Chapter in accordance with Article 1201 and, in particular, shall expeditiously apply those measures so as to avoid unduly impairing or delaying trade in goods or services or conduct of investment activities under this Agreement.
2. Nothing in this Chapter shall be construed to prevent a Party from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, 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 unduly impair or delay trade in goods or services or the conduct of investment activities under this Agreement.
Article 1203. Grant of Temporary Entry
1. Each Party shall grant temporary entry to business persons who comply with its immigration measures applicable to temporary entry such as those relating to public health and safety and national security, in accordance with this Chapter, including the provisions of Annex 1203.
2. Subject to each Party's labour legislation, a Party may refuse to issue a work permit or authorization to a business person where the temporary entry of that person might affect adversely:
(a) the settlement of any labour dispute that is in progress at the place or intended place of employment; or
(b) the employment of any person who is involved in such dispute.
3. Each Party shall limit any fees for processing applications for temporary entry of business persons so as to not unduly impair or delay trade in goods or services or the conduct of investment activities under this Agreement.
Article 1204. Provision of Information
1. Further to Article 1901 (Transparency - Publication), and recognizing the importance to the Parties of transparency of temporary entry information, each Party shall:
(a) provide to the other Party relevant materials as will enable the other Party to become acquainted with its measures relating to this Chapter; and
(b) no later than six months after the date of entry into force of this Agreement, make available explanatory material regarding the requirements for temporary entry under this Chapter, in such a manner as will enable business persons of the other Party to become acquainted with those requirements.
2. Each Party shall collect and maintain, and, on request, make available to the other Party in accordance with its domestic law, data respecting the granting of temporary entry under this Chapter to business persons of the other Party who have been issued immigration documentation.
Article 1205. Contact Points
1. The Parties hereby establish the following Contact Points:
(a) in the case of Canada: Director Temporary Resident Policy Immigration Branch Citizenship and Immigration Canada
(b) in the case of Colombia: Coordinador Coordinación de Visas e Immigración Ministerio de Relaciones Exteriores or their respective successors.
2. The Contact Points shall exchange information as described in Article 1204 and shall meet as required to consider matters pertaining to this Chapter, such as:
(a) the implementation and administration of this Chapter;
(b) the development and adoption of common criteria and interpretations for the implementation of this Chapter;
(c) the development of measures to further facilitate temporary entry of business persons on a reciprocal basis;
(d) proposed modifications to this Chapter; and
(e) measures that affect the temporary entry of business persons under this Chapter;
Article 1206. Dispute Settlement
1. A Party may not initiate proceedings under Chapter Twenty-One (Dispute Settlement) regarding a refusal to grant temporary entry under this Chapter unless:
(a) the matter involves a pattern of practice;
(b) the business person has exhausted the available administrative remedies regarding the particular matter; and
(c) the Contact Points have been unable to resolve the issue.
2. The remedies referred to in subparagraph 1(b) shall be deemed to be exhausted if a final determination in the matter has not been issued by the competent authority within one year of the institution of an administrative proceeding, and the failure to issue a determination is not attributable to delay caused by the business person.
Article 1207. Relation to other Chapters
No provision of this Agreement shall be interpreted to impose any obligation on a Party regarding its immigration measures, except as specifically identified in this Chapter and Chapters One (Initial Provisions and General Definitions), Twenty-One (Dispute Settlement), Nineteen (Transparency), Twenty (Administration of the Agreement), and Twenty-Three (Final Provisions).
Article 1208. Transparency and Processing of Applications
1. Further to Chapter Nineteen (Transparency), each Party shall establish or maintain appropriate mechanisms to respond to inquiries from interested persons regarding applications and procedures relating to the temporary entry of business persons.
2. Each Party shall endeavor to, within a reasonable period that should not exceed 30 days after an application requesting temporary entry is considered complete under its domestic laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the Party shall endeavor to provide, without undue delay, information concerning the status of the application
Article 1209. Definitions
For purposes of this Chapter:
business person means a national of a Party who is engaged in trade in goods, the supply of services or the conduct of investment activities;
immigration measures applicable to temporary entry means:
(a) with respect to Canada, the Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended and the associated Immigration and Refugee Protection Regulations, SOR/2002-227 as amended; and
(b) with respect to Colombia, El Decreto 4000 de 2004, publicado en el Diario Oficial de Colombia el 1 de diciembre de 2004, y las Resoluciones 0255 y 0273 de enero de 2005, as amended.
immigration measure means any measure affecting the entry or sojourn of a foreign national;
labour dispute means a conflict or controversy between a union and employer relating to terms or conditions of employment;
management trainee on professional development means an employee with a postsecondary degree who is on a temporary work assignment intended to broaden that employee's knowledge of and experience in a company in preparation for a senior leadership position within the company;
professional means a national of a Party who is engaged in a specialty occupation (1) requiring:
(a) theoretical and practical application of a body of specialized knowledge and the appropriate certification/license to practice; and
(b) attainment of a post-secondary degree in the specialty requiring four or more years of study, as a minimum for entry into the occupation (2) ;
technician means a national of a Party who is engaged in a specialty occupation (3) requiring :
(a) theoretical and practical application of a body of specialized knowledge and the appropriate certification/license to practice; and
(b) attainment of a post-secondary or technical degree requiring two or more years of study as a minimum for entry into the occupation (4);
specialist means an employee who possesses specialized knowledge of the company's products or services and its application in international markets, or an advanced level of expertise or knowledge of the company's processes and procedures;
temporary entry means entry into the territory of a Party by a business person of the other Party without the intent to establish permanent residence.
Chapter Thirteen. Competition Policy, Monopolies and State Enterprises
Article 1301. Objectives
Recognizing that conduct subject to this Chapter has the potential to restrict bilateral trade and investment, the Parties believe that proscribing such conduct, implementing economically sound competition policies and cooperating in matters covered by this Chapter will help secure the benefits of this Agreement.
Article 1302. Competition Law and Policy
1. Each Party shall maintain its independence in developing and enforcing its competition law.
2. Each Party shall adopt or maintain measures to proscribe anti-competitive business conduct and take appropriate action with respect to such conduct.
3. Each Party shall ensure that the measures it adopts or maintains to proscribe anticompetitive business conduct and the enforcement actions it takes pursuant to those measures are consistent with principles of transparency, non-discrimination and procedural fairness. Exclusions from these measures shall be transparent. Each Party shall make available to the other Party public information concerning exclusions provided under its competition laws.
4. Each Party should periodically assess its own exclusions to determine whether they are necessary to achieve its overriding policy objectives.
5. Colombia may implement its obligations under this Article through the Andean Community competition laws or an Andean Community enforcement authority.
Article 1303. Consultations
Subject to the independence of each Party to develop, maintain and enforce its competition policy and legislation, the Parties, on request of a Party, shall enter into consultations to foster understanding between them, or to address a specific matter under this Chapter. The requesting Party shall indicate in its request how the matter affects trade or investment between the Parties. The other Party shall give full and sympathetic consideration to the concerns of the requesting Party.
Article 1304. Cooperation
Each Party recognizes the importance of cooperation and coordination between their authorities to further effective competition law enforcement in the free trade area. In this regard, the Parties, through their respective competition authorities, shall negotiate a cooperation instrument that may address, among other matters, notification, consultation, positive and negative comity, technical assistance and exchange of information.
Article 1305. Designated Monopolies
1. Nothing in this Agreement shall be construed to prevent a Party from designating a monopoly.
2. Where a Party intends to designate a monopoly and the designation may affect the interests of the other Party, the designating Party shall, whenever possible, provide prior written notification to the other Party of the designation.
3. Each Party shall ensure that any privately-owned monopoly that it designates following the entry into force of this Agreement and any government monopoly that it designates, or has designated prior to the date of entry into force of this Agreement:
(a) acts in a manner that is not inconsistent with the Party's obligations under this Agreement wherever such a monopoly exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it in connection with the monopoly good or service, such as the power to grant import or export licenses, approve commercial transactions, or impose quotas, fees, or other charges;
(b) acts solely in accordance with commercial considerations in its purchase or sale of the monopoly good or service in the relevant market, including with regard to price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale, except to comply with any terms of its designation that are not inconsistent with subparagraph (c) or (d) ;
(c) provides non-discriminatory treatment to covered investments, to goods of the other Party, and to service suppliers of the other Party in its purchase or sale of the monopoly good or service in the relevant market; and
(d) does not use its monopoly position to engage, either directly or indirectly, including through its dealings with its parent, its subsidiaries or other enterprises with common ownership, in anticompetitive practices in a non-monopolized market in its territory that adversely affect covered investments.
4. Paragraph 3 does not apply to procurement by government of 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.
Article 1306. State Enterprises
1. Nothing in this Agreement shall be construed to prevent a Party from establishing or maintaining a state enterprise.
2. Each Party shall ensure that any state enterprise that it establishes or maintains, acts in a manner that is not inconsistent with the Party's obligations under Chapters Eight (Investment) and Eleven (Financial Services) wherever such enterprise exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant licenses, approve commercial transactions, or impose quotas, fees, or other charges.
3. Each Party shall ensure that any state enterprise that it maintains or establishes accords non-discriminatory treatment in the sale of its goods or services to covered investments.
Article 1307. Dispute Settlement
1. No Party may have recourse to dispute settlement under Chapter Twenty-One (Dispute Settlement) for any matter arising under this Chapter except for those matters arising under Articles 1305 and 1306.
2. For the purposes of this Chapter, an investor may have recourse to investor-state dispute settlement pursuant to subparagraph 1(b) of Article 819 (Investment - Claim by an Investor of a Party on Its Own Behalf) or subparagraph 1(b) of Article 820 (Investment - Claim by an Investor of a Party on Behalf of an Enterprise) only for matters arising under subparagraph 3(a) of Article 1305 or paragraph 2 of Article 1306.
Article 1308. Definitions
For purposes of this Chapter:
covered investment means "covered investment" as defined in Article 847 (Investment – Definitions);
designate means to establish, authorize, or to expand the scope of a monopoly to cover an additional good or service after the date of entry into force of this Agreement;
designated monopoly means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant;
government monopoly means a monopoly that is owned, or controlled through ownership interests, by the national government of a Party, or by another such monopoly;
in accordance with commercial considerations means consistent with normal business practices of privately-held (private) enterprises in the relevant business or industry;
market means the geographic and commercial market for a good or service;
non-discriminatory treatment means the better of national treatment and most-favoured-nation treatment, as set out in the relevant provisions of this Agreement; and
state enterprise means, except as set out in Annex 1308, an enterprise owned, or controlled through ownership interests, by a Party.
Chapter Fourteen. Government Procurement
Article 1401. Scope and Coverage
Application of Chapter
1. This Chapter applies to any measure adopted or maintained by a Party relating to procurement by a procuring entity listed in Annex 1401:
(a) by any contractual means, including purchase and rental or lease, with or without an option to buy;
(b) for which the value, as estimated in accordance with paragraph 5, equals or exceeds the relevant threshold specified in Annex 1401; and
(c) subject to the terms of Annex 1401.
2. This Chapter does not apply to:
(a) non-contractual agreements or any form of assistance that a Party, including a state enterprise, provides, including grants, loans, equity infusions, fiscal incentives, subsidies, guarantees, and cooperative agreements;
(b) government provision of goods or services to persons or to sub-national governments;
(c) purchases for the direct purpose of providing foreign assistance;
(d) purchases funded by international grants, loans, or other assistance, where the provision of such assistance is subject to conditions inconsistent with this Chapter;
(e) the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions, or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities. For greater certainty, this Chapter does not apply to procurement of banking, financial, or specialized services related to the following activities: (i) the incurring of public indebtedness; or (ii) public debt management;
(f) hiring of government employees and related employment measures; or
(g) procurements made by an entity or state enterprise from another entity or state enterprise of that Party.
3. Nothing in this Chapter shall prevent a Party from developing new procurement policies, procedures, or contractual means, provided they are not inconsistent with this Chapter.
4. Where a procuring entity awards a contract that is not covered by this Chapter, nothing in this Chapter shall be construed to cover any good or service component of that contract.
Valuation
5. In estimating the value of a procurement for the purpose of ascertaining whether it is a procurement covered by this Chapter, a procuring entity shall:
(a) neither divide a procurement into separate procurements nor select or use a particular valuation method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Chapter;
(b) include the estimated maximum total value of the procurement over its entire duration, whether awarded to one or more suppliers, taking into account all forms of remuneration, including:
(i) premiums, fees, commissions, and interest; and
(ii) where the procurement provides for the possibility of option clauses, the estimated maximum total value of the procurement, inclusive of optional purchases; and
(c) where the procurement is to be conducted in multiple parts, with contracts to be awarded at the same time or over a given period to one or more suppliers, base its calculation of the total maximum value of the procurement over its entire duration.
Article 1402. Security and General Exceptions
1. Nothing in this Chapter shall be construed to prevent a Party from taking any action or not disclosing any information which it considers necessary for the protection of its essential security interests relating to the procurement of arms, ammunition or war materials, or to procurement indispensable for national security or for national defense purposes.
2. Provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between Parties where the same conditions prevail or a disguised restriction on trade between the Parties, nothing in this Chapter shall be construed to prevent a Party from adopting or maintaining measures:
(a) necessary to protect public morals, order or safety;
(b) necessary to protect human, animal or plant life or health;
(c) necessary to protect intellectual property; or
(d) relating to goods or services of persons with disabilities, philanthropic institutions, or prison labour.
3. The Parties understand that subparagraph 2 (b) includes environmental measures necessary to protect human, animal or plant life or health.
Article 1403. General Principles
National Treatment and Non-Discrimination
1. With respect to any measure relating to procurement covered by this Chapter, each Party shall accord immediately and unconditionally to the goods and services of the other Party, and to the suppliers of the other Party of such goods or services, treatment no less favourable than the most favourable treatment the Party accords to domestic goods, services and suppliers.
2. With respect to any measure relating to procurement covered by this Chapter, a Party shall not:
(a) treat a locally established supplier less favourably than another locally established supplier on the basis of the degree of foreign affiliation or ownership; or
(b) 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. Conduct of Procurement