telecommunications regulatory body means a national body responsible for the regulation of telecommunications;
user means an end-user of or a supplier of public telecommunications transport networks and services; and
value-added services means those services that add value to telecommunications services through enhanced functionality, and specifically means those services as respectively defined in the relevant laws or regulations of each Party. Each Party may classify which services in its territory are value-added services.
Chapter Twelve. Electronic Commerce
Article 12.1. Objectives and Principles
1. The Parties, recognizing the economic growth and trade opportunities that electronic commerce provides, the importance of avoiding barriers to its use and development, and the applicability of the WTO Agreement to measures affecting electronic commerce, agree to promote the development of electronic commerce between them, in particular by cooperating on issues arising from electronic commerce under this Chapter.
2. The Parties agree that the development of electronic commerce shall be fully compatible with international standards of data protection, in order to ensure the confidence of users of electronic commerce.
Article 12.2. Customs Duties
1. Neither Party may apply customs duties, fees, or charges on or in connection with the importation or exportation of products by electronic means.
2. For greater certainty, this Chapter does not preclude a Party from imposing internal taxes or other internal charges on products delivered electronically, provided that such taxes or charges are imposed in a manner that is consistent with this Agreement.
Article 12.3. Online Personal Data Protection
Each Party shall adopt or maintain measures which ensure the protection of the personal data of the users of electronic commerce. In the development of personal data protection standards, each Party shall take into account international standards and the criteria of relevant international organizations.
Article 12.4. Paperless Trade Administration
1. Each Party shall endeavor to make trade administration documents available to the public in electronic form.
2. Each Party shall endeavor to accept trade administration documents submitted electronically as the legal equivalent of the paper version of those documents.
Article 12.5. Consumer Protection
1. The Parties recognize the importance of maintaining and adopting transparent and effective measures to protect consumers from fraudulent and misleading commercial practices when they engage in electronic commerce.
2. The Parties recognize the importance of cooperation between their respective national consumer agencies on activities related to cross-border electronic commerce in order to enhance consumer welfare.
Article 12.6. Cooperation
1. The Parties shall endeavor to establish cooperation mechanisms on issues arising from electronic commerce, which will, inter alia, address the following:
(a) the recognition of certificates of electronic signatures issued to the public and the facilitation of cross-border certification services;
(b) the protection of personal data;
(c) the liability of providers with respect to the transmission or storage of information;
(d) the treatment of unsolicited commercial electronic messages;
(e) the security of electronic commerce;
(f) the protection of consumers in the field of electronic commerce; and
(g) any other issue relevant for the development of electronic commerce.
2. The Parties shall endeavor to share information and experiences on laws and regulations related to electronic commerce and shall cooperate to help micro, small, and medium-sized enterprises overcome the obstacles they face in the use of electronic commerce.
3. Recognizing the global nature of electronic commerce, the Parties agree to actively participate in regional and multilateral fora to promote the development of electronic commerce and to exchange views, as necessary, within the framework of such fora on issues related to electronic commerce.
Article 12.7. Relation to other Chapters
In the event of any inconsistency between this Chapter and another Chapter in this Agreement, the other Chapter shall prevail to the extent of the inconsistency.
Article 12.8. Definitions
For purposes of this Chapter:
personal data means any information about an identified or identifiable natural person;
trade administration documents means forms that a Party issues or controls and that must be completed by or for an importer or exporter in connection with the importation or exportation of goods; and
unsolicited commercial electronic messages means an electronic message including a voice or fax message which is sent for commercial purposes to a consumer without the consent of the recipient, or against the explicit rejection of the recipient, using an internet carriage service or other telecommunications services.
Chapter Thirteen. Competition and Consumer Policy
Article 13.1. Objectives
Recognizing the importance of free competition in trade relations, the Parties understand that proscribing anti-competitive practices, implementing competition policies, and cooperating on matters covered by this Chapter will help prevent the benefits of trade liberalization from being undermined.
Article 13.2. Implementation
1. Each Party shall maintain competition laws that promote and protect the competitive process in its market by proscribing anti-competitive practices. Each Party shall take appropriate actions with respect to anti-competitive practices with the objective of promoting economic efficiency and consumer welfare.
2. Each Party shall maintain an authority or authorities responsible for the enforcement of its competition laws.
3. The enforcement policy of the Parties' competition authorities shall be consistent with the principles of transparency, timeliness, non-discrimination, and procedural fairness.
4. Each Party shall ensure that any exemption provided under its competition laws shall be transparent and undertaken on the grounds of public policy or public interest.
Article 13.3. Cooperation
1. The Parties recognize the importance of cooperation and coordination between their respective competition authorities to promote the effective enforcement of their competition laws and to fulfill the objectives of this Agreement.
2. Accordingly, the Parties shall cooperate in relation to the enforcement of their respective competition laws and policies, including through notification, consultation, technical assistance, and exchange of information.
3. The competition authority of a Party may request coordination from the competition authority of the other Party with respect to a specific case, when important interests of the requesting Party are substantially affected. This coordination shall not prevent the competition authority concerned from taking independent decisions.
Article 13.4. Notifications
1. Each Party, through its competition authority, shall notify in English the competition authority of the other Party of an enforcement activity regarding an anti-competitive practice if it considers that such enforcement activity may substantially affect important interests 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, the notification shall take place at an early stage of the enforcement activity.
Article 13.5. Consultations
1. To foster mutual understanding between the Parties, or to address specific matters that arise under this Chapter and without prejudice to the autonomy of each Party to develop, maintain, and enforce its competition laws and policies, each Party shall, upon request of the other Party, enter into consultations on issues raised by the other Party.
2. The Party to which a request for consultations has been addressed shall give full and sympathetic consideration to the concerns of the other Party.
Article 13.6. Technical Assistance
The Parties may provide each other with technical assistance in any area they consider appropriate, including exchange of experiences, capacity building for the implementation of their competition laws and policies, and promotion of competition culture.
Article 13.7. Confidentiality
1. The competition authority of a Party shall, upon request of the competition authority of the other Party, endeavor to provide information to facilitate effective enforcement of the Parties' respective competition laws, provided that it does not affect any ongoing investigation and is compatible with the rules and standards of confidentiality of each Party.
2. The competition authority of a Party shall maintain the confidentiality of any information provided in confidence by the competition authority of the other Party and shall not disclose such information to any entity that is not authorized by the competition authority providing the information.
Article 13.8. Cooperation on Consumer Protection
1. The Parties recognize the importance of cooperation and coordination on matters related to their consumer protection laws in order to enhance consumer welfare. Accordingly, the Parties shall cooperate, through their competent authorities, in appropriate cases where significant interests of either Party are affected, including through consultation, technical assistance, and exchange of information related to the enforcement of their consumer protection laws.
2. Nothing in this Article shall limit the discretion of the competent authority of a Party to decide whether to take action in response to a request by the competent authority of the other Party, nor shall it preclude any of these authorities from taking action with respect to any particular matter.
3. Each Party shall endeavor to identify, in areas of mutual concern and consistent with its own important interests, obstacles to effective cooperation with the other Party in the enforcement of its consumer protection laws.
Article 13.9. State Enterprises and Designated Monopolies
1. Nothing in this Chapter shall be construed to prevent a Party from establishing or maintaining state enterprises and/or designated monopolies.
2. The Parties shall ensure that state enterprises and designated monopolies are subject to their respective competition laws and do not adopt or maintain any anti-competitive practice that affects trade between the Parties, insofar as the application of this provision does not obstruct the performance, in law or in fact, of the particular public tasks assigned to them.
Article 13.10. Dispute Settlement
Neither Party shall have recourse to dispute settlement under this Agreement for any matter arising under this Chapter.
Article 13.11. Definitions
For purposes of this Chapter: competition law means:
(a) for Korea, the Monopoly Regulation and Fair Trade Act and its implementing regulations, and amendments thereto; and
(b) for Colombia, Law 155 of 1959, Law 1340 of 2009, and Decree 2153 of 1992 and their implementing regulations, and amendments thereto;
consumer protection law means:
(a) for Korea, the Framework Act on Consumer, the Fair Labelling and Advertising Act, and their implementing regulations, and amendments thereto; and
(b) for Colombia, Articles 78 and 333 of the Colombian Constitution (Constitución Política de Colombia), Decree 3466 of 1982 (Consumer Protection Statute), and their implementing regulations, and amendments thereto;
anti-competitive practice means business conduct or transactions that adversely affect competition in the territory of a Party, such as:
(a) agreements between enterprises and decisions by associations of enterprises, which have the purpose or effect to impede, restrict, or distort competition;
(b) any abuse of a dominant position by one or more enterprises; and
(c) mergers or other structural combinations of enterprises which significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position; and
competition authority means:
(a) for Korea, the Korea Fair Trade Commission, or its successor; and
(b) for Colombia, the Superintendency of Industry and Commerce (Superintendencia de Industria y Comercio -SIC), the Superintendency of Finance (Superintendencia Financiera de Colombia), and the Civil Aviation Authority (Aeronáutica Civil) for specific matters, or their successors.
Chapter Fourteen. Government Procurement
Article 14.1. Scope of Application
1. This Chapter shall apply to any measure of a Party regarding covered procurement.
2. For purposes of this Chapter, covered procurement means a government procurement of goods, services, or any combination thereof:
(a) not procured with a view to commercial sale or resale, or for use in the production or supply of goods or services for commercial sale or resale;
(b) by any contractual means, including: purchase; lease; rental or hire purchase, with or without an option to buy; and build-operate-transfer contracts and public works concessions contracts;
(c) for which the value, as estimated in accordance with paragraphs 5 and 6, equals or exceeds the relevant threshold specified in Annex 14-A at the time of publication of a notice in accordance with Article 14.5;
(d) by a procuring entity; and (e) that is not otherwise excluded from coverage by this Chapter or Annex 14-A.
3. This Chapter shall not apply to:
(a) the acquisition or rental of land, existing buildings, or other immovable property or rights thereon;
(b) non-contractual agreements or any form of assistance that a Party provides, including cooperative agreements, grants, loans, equity infusions, guarantees, fiscal incentives, and subsidies;
(c) the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions, or services related to the public debt, including loans and government bonds, notes, and other securities. For greater certainty, this Chapter shall 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;
(d) public employment contracts and related measures;
(e) procurement conducted under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project, or under the particular procedure or condition of an international organization, or funded by international grants, loans, or other assistance where the applicable procedure or condition would be inconsistent with this Chapter;
(f) procurement for the direct purpose of providing foreign assistance; and
(g) purchases for a procuring entity from another procuring entity.
4. Where a procuring entity, in the context of covered procurement, requires persons not listed in Annex 14-A to procure in accordance with particular requirements, Article 14.3 shall apply mutatis mutandis to such requirements.
Valuation
5. In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, 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, interest and other revenue streams that may be provided for in the procurements; 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 on the maximum total value of the procurement over its entire duration.
6. Where the estimated maximum total value of a procurement over its entire duration is not known, the procurement shall be covered by this Chapter.
Article 14.2. Exceptions
1. Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the 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 labor.
2. The Parties understand that paragraph 1(b) includes environmental measures necessary to protect human, animal, or plant life or health.
Article 14.3. General Principles
National Treatment and Non-Discrimination
1. With respect to any measure covered by this Chapter, each Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of the other Party and to the suppliers of the other Party offering such goods or services, treatment no less favorable than that accorded to domestic goods, services, and suppliers.
2. With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall not:
(a) treat a locally established supplier less favorably than another locally established supplier on the basis of 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.
Use of Electronic Means
3. When conducting covered procurement by electronic means, a procuring entity shall: (a) ensure that the procurement is conducted using information technology systems and software, including those related to authentication and encryption of information, that are generally available and interoperable with other generally available information technology systems and software; and (b) maintain mechanisms that ensure the integrity of requests for participation and tenders, including establishment of the time of receipt and the prevention of inappropriate access.
Measures Not Specific to Procurement
4. Paragraphs 1 and 2 shall not apply to: customs duties and charges of any kind imposed on, or in connection with, importation; the method of levying such duties and charges; other import regulations or formalities and measures affecting trade in services other than measures governing covered procurement.
Prohibition of Offsets
5. With regard to covered procurement, a Party, including its procuring entities, shall not seek, take account of, impose, or enforce offsets at any stage of a covered procurement.
Rules of Origin
6. For purposes of covered procurement, each Party shall apply to covered procurement of goods or services imported from or supplied from the other Party the rules of origin that it applies in the normal course of trade to those goods or services.
Conduct of Procurement
7. A procuring entity shall conduct covered procurement in a transparent and impartial manner that:
(a) is consistent with this Chapter, using methods such as open tendering, selective tendering, and limited tendering;
(b) avoids conflicts of interest; and
(c) prevents corrupt practices.
Article 14.4. Information on the Procurement System
1. Each Party shall promptly publish its procurement laws, regulations, procedures, policy guidelines, judicial decisions, and administrative rulings of general application, relating to covered procurement, and any change or addition thereof, in an electronic or paper medium that is widely disseminated and remains accessible to the public.
2. Each Party shall promptly reply to any request from the other Party for an explanation of any matter relating to its procurement laws, regulations, procedures, policy guidelines, judicial decisions, and administrative rulings of general application.
Article 14.5. Publication of Notices
Notice of Intended Procurement
1. For each covered procurement, except in the circumstances described in Article 14.10, a procuring entity shall publish a notice inviting interested suppliers to submit tenders or, where appropriate, applications for participation in the procurement. Any such notice shall be published in an electronic or paper medium that is widely disseminated and readily accessible to the public free of charge for the entire period established for tendering. Each Party shall encourage procuring entities to publish notices of intended procurement by electronic means in a single point of entry that is accessible through the Internet or a comparable network.
2. Except as otherwise provided in this Chapter, each notice of intended procurement shall include:
(a) the name and address of the procuring entity and other information necessary to contact the procuring entity and obtain all relevant documents relating to the procurement, and their cost and terms of payment, if any;
(b) a description of the procurement, including the nature and the quantity of the goods or services to be procured or, where the quantity is not known, the estimated quantity;
(c) the time-frame for delivery of goods or services or the duration of the contract;
(d) the procurement method that will be used and whether it will involve negotiation or electronic auction;
(e) where applicable, the address and any final date for the submission of requests for participation in the procurement;
(f) the address and the final date for the submission of tenders;
(g) a list and brief description of any conditions for participation of suppliers, including any requirements for specific documents or certifications to be provided by suppliers in connection therewith, unless such requirements are included in tender documentation that is made available to all interested suppliers at the same time as the notice of intended procurement;
(h) where, pursuant to Article 14.7, a procuring entity intends to select a limited number of qualified suppliers to be invited to tender, the criteria that will be used to select them and, where applicable, any limitation on the number of suppliers that will be permitted to tender; and
(i) an indication that the procurement is covered by this Chapter.