3. To assist in the implementation of this Chapter, the Parties shall exchange by the date of entry into force of this Agreement illustrative lists of professions that meet the definition of professional. To facilitate the evaluation of applications for temporary entry, the Parties shall also exchange information on post-secondary education.
4. Neither Party may:
(a) as a condition for temporary entry under paragraph 1, require prior approval procedures, petitions, labor certification tests, or other procedures of similar effect; or
(b) impose or maintain any numerical restriction relating to temporary entry under paragraph 1.
5. Notwithstanding paragraph 4(a), a Party may require a business person seeking temporary entry under this Section to comply with procedures applicable to temporary entry of professionals, such as an attestation of compliance with the Party's labor and immigration laws.
6. Notwithstanding paragraphs 1 and 4, a Party may establish an annual numerical limit, which shall be set out in Appendix 14.3(D)(6), regarding temporary entry of business persons of the other Party seeking to engage in business activities as a professional.
7. A Party establishing a numerical limit pursuant to paragraph 6, unless the Parties otherwise agree, may, in consultation with the other Party, grant temporary entry under paragraph 1 to a business person who practices in a profession where accreditation, licensing, and certification requirements are mutually recognized by the Parties.
8. Nothing in paragraphs 6 or 7 shall be construed to limit the ability of a business person to seek temporary entry under a Party's applicable immigration measures relating to the entry of professionals other than those adopted or maintained pursuant to paragraph 1.
Appendix 14.3(A)(1). Business Visitors
Meetings and Consultations
– Business persons attending meetings, seminars, or conferences; or engaged in consultations with business associates.
Research and Design
– Technical, scientific, and statistical researchers conducting independent research or 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 independent research or analysis or research or analysis 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 specialized 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
– 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.
Definitions
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.
Appendix 14.3(D)(6). United States
1. Beginning on the date of entry into force of this Agreement, the United States shall annually approve as many as 1,400 initial applications of business persons of Chile seeking temporary entry under Section D of Annex 14.3 to engage in a business activity at a professional level.
2. For purposes of paragraph 1, the United States shall not take into account:
(a) the renewal of a period of temporary entry;
(b) the entry of a spouse or children accompanying or following to join the principal business person;
(c) an admission under section 101(a)(15)(H)(i)(b) of the /mmigration and Nationality Act, 1952, as may be amended, including the worldwide numerical limit established by section 214(g)(1)(A) of that Act; or
(d) an admission under any other provision of section 101(a)(15) of that Act relating to the entry of professionals.
Chapter Fifteen. Electronic Commerce
Article 15.1. General Provisions
1. The Parties recognize the economic growth and opportunity provided by electronic commerce and the importance of avoiding unnecessary barriers to its use and development.
2. Nothing in this Chapter shall be construed to prevent a Party from imposing intemal taxes, directly or indirectly, on digital products, provided they are imposed in a manner consistent with this Agreement.
3. This Chapter is subject to any other relevant provisions, exceptions, or nonconforming measures set forth in other Chapters or Annexes of this Agreement.
Article 15.2. Electronic Supply of Services
The Parties recognize that the supply of a service using electronic means falls within the scope of the obligations contained in the relevant provisions of Chapter Eleven (Cross- Border Trade in Services) and Chapter Twelve (Financial Services), subject to any nonconforming measures or exceptions applicable to such obligations. (1)
Article 15.3. Customs Duties on Digital Products
Neither Party may apply customs duties on digital products of the other Party.
Article 15.4. Non-Discrimination for Digital Products
1. A Party shall not accord less favorable treatment to a digital product than it accords to other like digital products, on the basis that:
(a) the digital product receiving less favorable treatment is created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of the other Party; or
(b) the author, performer, producer, developer, or distributor of such digital products is a person of the other Party (2)
2. (a) A Party shall not accord less favorable treatment to a digital product created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of the other Party than it accords to a like digital product created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of a non- Party.
(b) A Party shall not accord less favorable treatment to digital products whose author, performer, producer, developer, or distributor is a person of the other Party than it accords to like digital products whose author, performer, producer, developer, or distributor is a person of a non-Party.
3. A Party may maintain an existing measure that does not conform with paragraph 1 or 2 for one year after the date of entry into force of this Agreement. A Party may maintain the measure thereafter, if the treatment the Party accords under the measure is no less favorable than the treatment the Party accorded under the measure on the date of entry into force of this Agreement, and the Party has set out the measure in its Schedule to Annex 15.4. A Party may amend such a measure only to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with paragraphs 1 and 2.
Article 15.5. Cooperation
Having in mind the global nature of electronic commerce, the Parties recognize the importance of:
(a) working together to overcome obstacles encountered by small and medium enterprises in the use of electronic commerce;
(b) sharing information and experiences on regulations, laws, and programs in the sphere of electronic commerce, including those related to data privacy, consumer confidence, cyber-security, electronic signatures, intellectual property rights, and electronic goverment;
(c) working to maintain cross-border flows of information as an essential element for a vibrant electronic commerce environment;
(d) encouraging the development by the private sector of methods of selfregulation, including codes of conduct, model contracts, guidelines, and enforcement mechanisms that foster electronic commerce; and
(e) actively participating in international for a, at both a hemispheric and multilateral level, with the purpose of promoting the development of electronic commerce.
Article 15.6. Definitions
For purposes of this Chapter:
digital products means computer programs, text, video, images, sound recordings, and other products that are digitally encoded and transmitted electronically, regardless of whether a Party treats such products as a good or a service under its domestic law; (3)
electronic means means employing computer processing; and
electronic transmission or transmitted electronically means the transfer of digital products using any electromagnetic or photonic means.
Chapter Sixteen. Competition Policy, Designated Monopolies, and State Enterprises
Article 16.1. Anticompetitive Business Conduct
1. Each Party shall adopt or maintain competition laws that proscribe anticompetitive business conduct, with the objective of promoting economic efficiency and consumer welfare, and shall take appropriate action with respect to such conduct.
2. Each Party shall maintain an authority responsible for the enforcement of its national competition laws. The enforcement policy of each Party's national competition authorities is not to discriminate on the basis of the nationality of the subjects of their proceedings. Each Party shall ensure that:
(a) before it imposes a sanction or remedy against any person for violating its competition law, it affords the person the right to be heard and to present evidence, except that it may provide for the person to be heard and present evidence within a reasonable time after it imposes an interim sanction or remedy; and
(b) an independent court or tribunal imposes or, at the person's request, reviews any such sanction or remedy.
3. Nothing in this Chapter shall be construed to infringe each Party's autonomy in developing its competition policies or in deciding how to enforce its competition laws.
Article 16.2. Cooperation
The Parties agree to cooperate in the area of competition policy. The Parties recognize the importance of cooperation and coordination between their respective authorities to further effective competition law enforcement in the free trade area. Accordingly, the Parties shall cooperate on issues of competition law enforcement, including notification, consultation, and exchange of information relating to the enforcement of the Partiesâ competition laws and policies.
Article 16.3. Designated Monopolies
1. Nothing in this Chapter shall be construed to prevent a Party from designating a monopoly.
2. Where a Party designates a monopoly and the designation may affect the interests of persons of the other Party, the Party shall:
(a) at the time of the designation endeavor to introduce such conditions on the operation of the monopoly as will minimize or eliminate any nullification or impairment of benefits in the sense of Annex 22.2 (Nullification or Impairment); and
(b) provide written notification, in advance wherever possible, to the other Party of the designation and any such conditions.
3. Each Party shall ensure that any privately-owned monopoly that it designates after the date of entry into force of this Agreement and any goverment monopoly that it designates or has designated:
(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, subsidiaries, or other enterprises with common ownership, in anticompetitive practices in a non-monopolized market in its territory that adversely affect covered investments.
4. This Article does not apply to procurement.
Article 16.4. 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 this Agreement 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 establishes or maintains accords non- discriminatory treatment in the sale of its goods or services to covered investments.
Article 16.5. Differences In Pricing
The charging of different prices in different markets, or within the same market, where such differences are based on normal commercial considerations, such as taking account of supply and demand conditions, is not in itself inconsistent with Articles 16.3 and 16.4.
Article 16.6. Transparency and Information Requests
1. The Parties recognize the value of transparency of government competition policies.
2. On request, each Party shall make available to the other Party public information concerning its:
(a) competition law enforcement activities; and
(b) state enterprises and designated monopolies, public or private, at any level of government.
Requests under subparagraph (b) shall indicate the entities or localities involved, specify the particular products and markets concemed, and include indicia of practices that may restrict trade or investment between the Parties.
3. On request, each Party shall make available to the other Party public information conceming exemptions provided under its competition laws. Requests shall specify the particular goods and markets of interest and include indicia that the exemption may restrict trade or investment between the Parties.
Article 16.7. Consultations
To foster understanding between the Parties, or to address specific matters that arise under this Chapter, each Party shall, on request of the other Party, enter into consultations regarding representations made by the other Party. In its request, the Party shall indicate, if relevant, how the matter affects trade or investment between the Parties. The Party addressed shall accord full and sympathetic consideration to the concems of the other Party.
Article 16.8. Disputes
Neither Party may have recourse to dispute settlement under this Agreement for any matter arising under Article 16.1, 16.2, or 16.7.
Article 16.9. Definitions
For purposes of this Chapter:
a delegation includes a legislative grant, and a government order, directive, or other act, transferring to the monopoly or state enterprise, or authorizing the exercise by the monopoly or state enterprise of, govemmental authority;
designate means to establish, designate, or authorize, formally or in effect, a monopoly or to expand the scope of a monopoly to cover an additional good or service;
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 enterprises in the relevant business or industry;
market means the geographic and commercial market for a good or service;
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; and
non-discriminatory treatment means the better of national treatment and most-favored nation treatment, as set out in the relevant provisions of this Agreement.
Chapter Seventeen. Intellectual Property Rights
The Parties,
Desiring to reduce distortions and impediments to trade between the Parties;
Desiring to enhance the intellectual property systems of the two Parties to account for the latest technological developments and to ensure that measures and procedures to enforce intellectual property rights do not themselves become bamriers to legitimate trade;
Desiring to promote greater efficiency and transparency in the administration of intellectual property systems of the Parties;
Desiring to build on the foundations established in existing intemational agreements in the field of intellectual property, including the World Trade Organization (WTO) Agreement on Trade-Related Aspects of intellectual Property Rights (TRIPS Agreement) and affirming the rights and obligations set forth in the TRIPS Agreement;
Recognizing the principles set out in the Declaration on the TRIPS Agreement on Public Health, adopted on November 14, 2001, by the WTO at the Fourth WTO Ministerial Conference, held in Doha, Qatar;
Emphasizing that the protection and enforcement of intellectual property rights is a fundamental principle of this Chapter that helps promote technological innovation as well as the transfer and dissemination of technology to the mutual advantage of technology producers and users, and that encourages the development of social and economic well-being;
Convinced of the importance of efforts to encourage private and public investment for research, development, and innovation;
Recognizing that the business community of each Party should be encouraged to participate in programs and initiatives for research, development, innovation, and the transfer of technology implemented by the other Party;
Recognizing the need to achieve a balance between the rights of right holders and the legitimate interests of users and the community with regard to protected works;
Agree as follows:
Article 17.1. General Provisions
1. Each Party shall give effect to the provisions of this Chapter and may, but shall not be obliged to, implement in its domestic law more extensive protection than is required by this Chapter, provided that such protection does not contravene the provisions of this Chapter.
2. Before January 1, 2007, each Party shall ratify or accede to the Patent Cooperation Treaty (1984). 3. Before January 1, 2009, each Party shall ratify or accede to:
(a) the International Convention for the Protection of New Varieties of Plants (1991);
(b) the Trademark Law Treaty (1994); and
(c) the Convention Relating to the Distribution of Programme-Carrying Signals Transmitied by Satellite (1974).
4. Each Party shall undertake reasonable efforts to ratify or accede to the following agreements in a manner consistent with its domestic law:
(a) the Patent Law Treaty (2000);
(b) the Hague Agreement Conceming the International Registration of Industrial Designs (1999); and
(c) the Protocol Relating to the Madrid Agreement Conceming the Intemational Registration of Marks (1989).
5. Nothing in this Chapter conceming intellectual property rights shall derogate from the obligations and rights of one Party with respect to the other by virtue of the TRIPS Agreement or multilateral intellectual property agreements concluded or administered under the auspices of the World Intellectual Property Organization (WIPO).
6. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to persons of the other Party treatment no less favorable than it accords to its own persons with regard to the protection (1) and enjoyment of such intellectual property rights and any benefits derived from such rights. With respect to secondary uses of phonograms by means of analog communications and free over-the-air radio broadcasting, however, a Party may limit the rights of the performers and producers of the other Party to the rights its persons are accorded within the jurisdiction of the other Party.
7. Each Party may derogate from paragraph 6 in relation to its judicial and administrative procedures, including the designation of an address for service or the appointment of an agent within the jurisdiction of that Party, only where such derogations are necessary to secure compliance with laws and regulations that are not inconsistent with the provisions of this Chapter and where such practices are not applied in a manner that would constitute a disguised restriction on trade.
8. Paragraphs 6 and 7 do not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.
9. This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement.
10. Except as otherwise provided for in this Chapter, this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement, and which is protected by a Party on that date, or which meets or comes subsequently to meet the criteria for protection under the terms of this Chapter. In respect of paragraphs 10 and 11, copyright and related rights obligations with respect to existing works and phonograms shall be determined solely under Article 17.7(7).
11. Neither Party shall be obligated to restore protection to subject matter which on the date of entry into force of this Chapter has fallen into the public domain in that Party.
12. Each Party shall ensure that all laws, regulations, and procedures concerning the protection or enforcement of intellectual property rights, and all final judicial decisions and administrative rulings of general applicability pertaining to the enforcement of such rights, shall be in writing and shall be published, (2) or where such publication is not practicable, made publicly available, in a national language in such a manner as to enable the other Party and right holders to become acquainted with them, with the object of making the protection and enforcement of intellectual property rights transparent. Nothing in this paragraph shall require a Party to disclose confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private.
13. Nothing in this Chapter prevents a Party from adopting measures necessary to prevent anticompetitive practices that may result from the abuse of the intellectual property rights set forth in this Chapter.
14. For the purposes of strengthening the development and protection of intellectual property, and implementing the obligations of this Chapter, the Parties will cooperate, on mutually agreed terms and subject to the availability of appropriated funds, by means of: