days means a calendar day;
legal holiday means every Saturday and Sunday and any other day designated by a Party as an official holiday;
panel means a panel established under Article 20.7;
panelist means a member of a panel established under Article 20.7;
Party complained against means a Party that received the request for the establishment of a panel under Article 20.7;
proceedings means a panel proceeding; and
representative means an employee of a government department or agency or of any other government entity of a Party.
3. Any reference made in these rules of procedure to an Article is a reference to the appropriate Article in this Chapter.
Written Submissions and Other Documents
4. Each Party shall deliver the original and no less than four copies of any written submission to the panel and one copy to the Embassy of the other Party. Delivery of submissions and any other document related to the panel proceeding may be made by facsimile or other means of electronic transmission if the Parties so agree. Where a Party delivers physical copies of written submissions or any other document related to the panel proceeding, that Party shall deliver at the same time an electronic version of such submissions or other document.
5. The deadlines are counted from the following date of the receipt of such submission or documents. The complaining Party shall deliver a complete initial written submission to the Party complained against no later than 10 days after the date on which the last panelist is appointed. The Party complained against shall, in turn, deliver a written counter-submission no later than 20 days following the date of receipt of the initial written submission of the complaining Party.
6. The panel shall establish, in consultation with the Parties, dates for the delivery of the subsequent written rebuttal submissions of the Parties and any other written submissions that the panel and the Parties agree are appropriate.
7. A Party may at any time correct minor errors of a clerical nature in any written submission or other document related to the panel proceeding by delivering a new document clearly indicating the changes.
8. If the last day for delivery of a document falls on a legal holiday observed by a Party or on any other day on which the government offices of that Party are closed by order of the government or by force majeure, the document may be delivered on the next business day.
Burden of Proof
9. A Party asserting that a measure of the other Party is inconsistent with its obligations under this Agreement, or that the other Party has otherwise failed to carry out its obligations under this Agreement, or that a benefit the Party could reasonably have expected to accrue is being nullified or impaired as a result of a measure that is not inconsistent with this Agreement shall have the burden of proving its assertions.
10. A Party asserting that a measure is subject to an exception under this Agreement shall have the burden of proving that the exception applies.
Operation of Panels
11. The chair of the panel shall preside at all of its meetings. A panel may delegate to the chair of the panel authority to make administrative decisions regarding the proceedings.
12. The panel may conduct its business by any appropriate means, including technological means such as telephone, facsimile transmission, and video or computer links.
13. Only panelists may take part in the deliberations of the panel. The panel may, in consultation with the Parties, employ such number of assistants, interpreters or translators, or court reporters as may be required for the proceeding and permit them to be present during such deliberations.
14. Where a procedural question arises that is not addressed by these rules, a panel may adopt an appropriate procedure that is consistent with this Agreement.
15. The time-period applicable to the panel proceeding shall be suspended for a period that begins on the date on which any member of the panel becomes unable to act and ends on the date on which the successor is appointed.
16. A panel may, in consultation with the Parties, modify any time-period applicable in the panel proceeding and make other procedural or administrative adjustments as may be required in the proceeding.
Hearings
17. The chair of the panel shall fix the date and time of the initial hearing and any subsequent hearings in consultation with the Parties and the panelists, and then notify the Parties in writing of those dates and times.
18. Unless the Parties otherwise agree, the hearings shall be held in the capital of the Party complained against.
19. The panel may convene additional hearings if the Parties so agree.
20. All panelists shall be present during the entirety of any hearing.
21. No later than five days before the date of a hearing, each Party shall deliver to the other Party and the panel a list of the names of those persons who will be present at the hearing on behalf of that Party and of other representatives or advisers who will be attending the hearing.
22. Each hearing shall be conducted by the panel in a manner that ensures that the complaining Party and the Party complained against are afforded equal time for arguments, replies and counter-replies.
23. Hearings shall be open to the public, except as necessary to protect information designated by either Party for confidential treatment. The Panel may, in consultation with the Parties, adopt appropriate logistical arrangements and procedures to ensure that hearings are not disrupted by the attendance of the public.
24. The panel shall arrange the preparation of hearing transcripts, if any, and shall, as soon as possible after any such transcripts are prepared, deliver a copy to each Party.
Ex Parte Contacts
25. No Party may communicate with the panel without notifying the other Party. The panel shall not communicate with a Party in the absence of, or without notifying, the other Party.
26. No panelist may discuss any aspect of the substantive subject matter of the proceeding with the Parties in the absence of the other panelists.
Availability of Information
27. The Parties shall maintain the confidentiality of the panel's hearings, deliberations and initial report, and all written submissions to, and communications with, the panel, in accordance with the following procedures:
(a) a Party may make available to the public at any time its own written submissions;
(b) to the extent it considers strictly necessary to protect personal privacy or legitimate commercial interests of particular enterprises, public or private, or to address essential confidentiality concerns, a Party may designate specific information included in its written submissions, or that it has presented in the panel hearing, for confidential treatment;
(c) a Party shall treat as confidential any information submitted by the other Party to the panel that the latter Party has designated as confidential pursuant to subparagraph (b); and
(d) each Party shall take such reasonable steps necessary to ensure that its experts, interpreters, translators, court reporters (designated note takers) and other individuals involved in the panel proceedings maintain the confidentiality of the panel proceedings.
Remuneration and Payment of Expenses
28. Unless the Parties otherwise agree, the expenses of the panel, the remuneration of the panelists and their assistants, their travel and lodging expenses, and all general expenses shall be borne in equal shares between the Parties.
29. Each panelist shall keep a record and render a final account of his or her time and expenses, and those of any assistant, and the panel shall keep a record and render a final account of all general expenses.
Language
30. During the panel procedure, the Parties have the right to use either their own languages or English. Written submissions and oral arguments may be submitted in Korean with English translation or in Spanish with English translation.
Questions in Writing
31. The panel may at any time during the proceedings address questions in writing to one or both Parties. The Parties shall receive a copy of any questions put forward by the Panel.
32. Each Party shall also provide a copy of its written response to the panel’s questions to the other Party. The Parties shall be given the opportunity to provide written comments on the reply of the other Party within five days of the date of delivery.
Role of Experts
33. Upon request of a Party, or on its own initiative, the panel may seek information and technical advice from any person or body that it deems appropriate, subject to paragraphs 34 and 35, and such additional terms and conditions as the Parties may agree upon. The requirements set out in Article 20.8 shall apply to the experts or bodies, as appropriate.
34. Before the panel seeks information or technical advice, it shall:
(a) notify the Parties of its intention to seek information or technical advice pursuant to paragraph 33 and provide them with an adequate period of time to submit comments; and,
(b) provide the Parties with a copy of any information or technical advice received pursuant to paragraph 33 and provide them with an adequate period of time to submit comments.
35. When the panel takes into consideration the information or technical advice received pursuant to paragraph 33 for the preparation of its report, it shall also take into consideration any comments or observations submitted by the disputing Parties with respect to such information or technical advice.
Chapter Twenty-One. Exceptions
Article 21.1. General Exceptions
1. For purposes of Chapters 2 (National Treatment and Market Access for Goods), 3 (Rules of Origin and Origin Procedures), 4 (Customs Administration and Trade Facilitation), 6 (Technical Barriers to Trade), 7 (Trade Remedies), and 12 (Electronic Commerce), Article XX of the GATT 1994 and its interpretive notes are incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XX(b) of the GATT 1994 include environmental measures necessary to protect human, animal, or plant life or health, and that Article XX(g) of the GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources.
2. For purposes of Chapters 8 (Investment), 9 (Cross-border Trade in Services), 10 (Temporary Entry for Business Persons), 11 (Telecommunications), and 12 (Electronic Commerce), (1) Article XIV of the GATS (including its footnotes) is incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XIV(b) of the GATS include environmental measures necessary to protect human, animal, or plant life or health. The Parties understand that the measures referred to in Article XIV(a) of the GATS include measures aimed at preserving internal public order.
Article 21.2. Essential Security
Nothing in this Agreement shall be construed:
(a) to require a Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests; or
(b) to preclude a Party from applying measures that it considers necessary for the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security or the protection of its own essential security interests. (2)
Article 21.3. Taxation
1. Except as set out in this Article, nothing in this Agreement shall apply to taxation measures.
2. Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention. In the event of any inconsistency between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency. In the case of a tax convention between the Parties, the competent authorities under that convention shall have sole responsibility for determining whether any inconsistency exists between this Agreement and that convention.
3. Notwithstanding paragraph 2:
(a) Article 2.2 (National Treatment) and such other provisions of this Agreement as are necessary to give effect to that Article shall apply to taxation measures to the same extent as does Article III of the GATT 1994; and
(b) Article 2.11 (Export Taxes) shall apply to taxation measures.
4. Subject to paragraph 2:
(a) Article 9.2 (National Treatment) shall apply to taxation measures on income, on capital gains, or on the taxable capital of corporations that relate to the purchase or consumption of particular services, except that nothing in this subparagraph shall prevent a Party from conditioning the receipt or continued receipt of an advantage relating to the purchase or consumption of particular services on requirements to provide the service in its territory; and
(b) Article 8.3 (National Treatment) and Article 8.4 (Most-Favored Nation Treatment), and Article 9.2 (National Treatment) and Article 9.3 (Most-Favored Nation Treatment) shall apply to all taxation measures, other than those on income, on capital gains, or on the taxable capital of corporations, or taxes on estates, inheritances and gifts, and generation-skipping transfers;
except that nothing in the Articles referred to in subparagraphs (a) and (b) shall apply:
(c) any most-favored-nation obligation with respect to an advantage accorded by a Party pursuant to a tax convention;
(d) to a non-conforming provision of any existing taxation measure;
(e) to the continuation or prompt renewal of a non-conforming provision of any existing taxation measure;
(f) to an amendment to a non-conforming provision of any existing taxation measure to the extent that the amendment does not decrease its conformity, at the time of the amendment, with any of those Articles;
(g) to the adoption or enforcement of any taxation measure aimed at ensuring the equitable or effective imposition or collection of taxes (as permitted by Article XIV(d) of the GATS); or
(h) to a provision that conditions the receipt, or continued receipt, of an advantage relating to the contributions to, or income of, a pension trust or pension plan on a requirement that the Party maintain continuous jurisdiction over the pension trust or pension plan.
5. Subject to paragraph 2 and without prejudice to the rights and obligations of the Parties under paragraph 3, Article 8.9 (Performance Requirements) shall apply to taxation measures.
6. (a) Article 8.7 (Expropriation and Compensation) and Article 8.17 (Settlement of Dispute between a Party and an Investor of the Other Party) shall apply to a taxation measure alleged to be an expropriation or a breach of an investment agreement or investment authorization. However, no investor may invoke Article 8.7 (Expropriation and Compensation) as the basis for a claim where it has been determined pursuant to this subparagraph that the measure is not an expropriation.(3) An investor that seeks to invoke Article 8.7 (Expropriation and Compensation) with respect to a taxation measure must first refer to the competent authorities, at the time that it gives its notice of intent under Article 8.17 (Settlement of Dispute between a Party and an Investor of the Other Party), the issue of whether that taxation measure involves an expropriation. If the competent authorities do not agree to consider the issue or, having agreed to consider it, fail to agree that the measure is not an expropriation within a period of 180 days of such referral, the investor may submit its claim to arbitration under Article 8.17 (Settlement of Dispute between a Party and an Investor of the Other Party); and
(b) For purposes of this paragraph, competent authorities means:
(i) for Korea, the Deputy Minister for Tax and Customs, Ministry of Strategy and Finance; and
(ii) for Colombia, the Legal Advisory Office of the Ministry of Finance and Public Credit (Oficina Asesora Jurídica del Ministerio de Hacienda Crédito Público).
7. For purposes of this Article,
(a) "taxes" and "taxation measures" do not include:
(i) a customs duty as defined in Article 1.3 (Definitions); or
(ii) the measures listed in exceptions (b), (c), (d), and (e) of that definition; and
(b) tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement.
Article 21.4. Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to furnish or allow access to confidential information the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice the legitimate commercial interests of particular enterprises, public or private.
Chapter Twenty-Two. Final Provisions
Article 22.1. Annexes, Appendices, and Footnotes
The Annexes, Appendices, and footnotes to this Agreement constitute an integral part of this Agreement.
Article 22.2. Amendments
The Parties may agree, in writing, to amend this Agreement. Any amendment shall enter into force after the Parties exchange written notifications certifying that they have completed their respective applicable legal requirements and procedures, on such date as the Parties may agree.
Article 22.3. Amendment of the WTO Agreement
If any provision of the WTO Agreement that the Parties have incorporated into this Agreement is amended, the Parties shall consult to consider amending the relevant provision of this Agreement, as appropriate, in accordance with Article 22.2.
Article 22.4. Entry Into Force
This Agreement shall enter into force 30 days after the receipt of the last written notification by the Parties certifying that they have completed their respective legal requirements or on such other date as the Parties may agree.
Article 22.5. Termination
This Agreement shall terminate 180 days after the date either Party notifies the other Party in writing that it wishes to terminate this Agreement, unless otherwise agreed by the Parties.
Article 22.6. Provisional Application
1. Without prejudice to Article 22.4, in the event Korea has notified the completion of its ratification procedures under Article 22.4 while Colombia has not, this Agreement shall be provisionally applied from the first day of the first month following the day on which Colombia notifies Korea of its decision to apply this Agreement provisionally in accordance with the Vienna Convention on the Law of Treaties (1969) and the Colombian Constitution (Constitución Politica de Colombia).
2. Where this Agreement is applied by the Parties pending its entry into force in accordance with paragraph 1, any reference in the provisions of this Agreement to the date of entry into force of this Agreement shall be understood to refer to the date of provisional application in accordance with paragraph 1.
3. Subject to paragraphs 1 and 2, a Party may terminate provisional application by written notice to the other Party. Such termination shall take effect on the first day of the first month following notification.
Article 22.7. Authentic Texts
The Korean, Spanish, and English texts of this Agreement are equally authentic. In case of any divergence, the English text shall prevail.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE at Seoul, this 21st day of February, 2013, in duplicate, in the Korean, Spanish, and English languages.
FOR THE GOVERNMENT OF THE REPUBLIC OF COLOMBIA:
FOR THE GOVERNMENT OF THE REPUBLIC OF KOREA:
Attachments
Annex I. Explanatory Notes
1. The Schedule of a Party to this Annex sets out, pursuant to Articles 8.13 (Non-Conforming Measures) and 9.6 (Non-Conforming Measures), the Party’s existing measures that are not subject to some or all of the obligations imposed by:
(a) Article 8.3 (National Treatment) or 9.2 (National Treatment);
(b) Article 8.4 (Most-Favored-Nation Treatment) or 9.3 (Most-Favored-Nation Treatment);
(c) Article 9.5 (Local Presence);
(d) Article 8.9 (Performance Requirements);
(e) Article 8.10 (Senior Management and Boards of Directors); or
(f) Article 9.4 (Market Access).
2. Each Schedule entry sets out the following elements:
(a) Sector refers to the sector for which the entry is made;
(b) Obligations Concerned specifies the article(s) referred to in paragraph 1 that, pursuant to Articles 8.13.1(a) and 9.6.1(a), do not apply to the non-conforming aspects of the law, regulation, or other measure, as set out in paragraph 3;
(c) Measures (1) identifies the laws, regulations, or other measures for which the entry is made. A measure cited in the Measures element:
(i) means the measure as amended, continued, or renewed as of the date of entry into force of this Agreement; and
(ii) includes any subordinate measure adopted or maintained under the authority of and consistent with the measure; and
(d) Description sets out commitments, if any, for liberalization on the date of entry into force of this Agreement, and the remaining non-conforming aspects of the measure for which the entry is made.
3. In the interpretation of a Schedule entry, all elements of the entry shall be considered. An entry shall be interpreted in light of the relevant articles of the Chapters against which the entry is made. To the extent that:
(a) the Measures element is qualified by a liberalization commitment from the Description element, the Measures element as so qualified shall prevail over all other elements; and
(b) the Measures element is not so qualified, the Measures element shall prevail over all other elements, unless any discrepancy between the Measures element and the other elements considered in their totality is so substantial and material that it would be unreasonable to conclude that the Measures element should prevail, in which case the other elements shall prevail to the extent of that discrepancy.
4. In accordance with Articles 8.13.1(a) and 9.6.1(a), and subject to Articles 8.13.1(c) and 9.6.1(c), the articles of this Agreement specified in the Obligations Concerned element of an entry do not apply to the non-conforming aspects of the law, regulation, or other measure identified in the Measures element of that entry.
5. Where a Party maintains a measure that requires that a service provider be a citizen, permanent resident, or resident of its territory as a condition to the provision of a service in its territory, a Schedule entry for that measure taken with respect to Article 9.2 (National Treatment), 9.3 (Most-Favored-Nation Treatment), or 9.5 (Local Presence) shall operate as a Schedule entry with respect to Article 8.3 (National Treatment), 8.4 (Most-Favored-Nation Treatment), or 8.9 (Performance Requirements) to the extent of that measure.
6. For greater certainty, Local Presence (Article 9.5) and National Treatment (Article 9.2) are separate disciplines and a measure that is only inconsistent with Local Presence (Article 9.5) need not be reserved against National Treatment (Article 9.2).
Annex I. Schedule of Colombia
Sector: All Sectors
Obligations Concerned: Local Presence (Article 9.5)
Measures: Código de Comercio de 1971, Arts. 469, 471 y 474
Description: Cross-Border Trade in Services
A juridical person constituted or organized under the laws of another country and with its principal domicile in another country, shall establish a branch in Colombia in order to develop a concession granted by the Colombian State.
Sector: All Sectors
Obligations Concerned: Performance Requirements (Article 8.9) Senior Management and Boards of Directors (Article 8.10) National Treatment (Article 9.2)
Measures: Código Sustantivo del Trabajo, 1993, Arts. 74 y 75