respondent means the Party that is a party to an investment dispute;
Secretary-General means the Secretary-General of ICSID; and
UNCITRAL Arbitration Rules means the arbitration rules of the United Nations Commission on International Trade Law.
Chapter Nine. Cross-border Trade In Services
Article 9.1. Scope
1. This Chapter shall apply to measures adopted or maintained by a Party affecting cross-border trade in services by service suppliers of the other Party. Such measures include measures affecting:
(a) the production, distribution, marketing, sale, and delivery of a service;
(b) the purchase or use of, or payment for, a service;
(c) the access to and use of distribution, transport, or telecommunications networks and services in connection with the supply of a service;
(d) the presence in its territory of a service supplier of the other Party; and
(e) the provision of a bond or other form of financial security as a condition for the supply of a service.
2. For purposes of this Chapter, measures adopted or maintained by a Party means measures adopted or maintained by:
(a) central or local governments and authorities; and
(b) non-governmental bodies in the exercise of powers delegated by central or local governments or authorities.
3. Notwithstanding paragraph 1, Articles 9.4, 9.7, and 9.8 shall also apply to measures adopted or maintained by a Party affecting the supply of a service in its territory by a covered investment (1).
4. Notwithstanding paragraph 1, this Chapter shall not apply to:
(a) financial services as defined in Article 9.13, except that paragraph 3 shall apply where the financial service is supplied by a covered investment that is not a covered investment in a financial institution as defined in Article 1.3 (Definitions) in the Party's territory;
(b) government procurement;
(c) air services, including domestic and international air transportation services, whether scheduled or non-scheduled, and related services in support of air services, other than:
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service;
(ii) the selling and marketing of air transport services; and
(iii) computer reservation system (CRS) services; or
(d) subsidies or grants provided by a Party, including government-supported loans, guarantees, and insurance.
5. This Chapter shall not impose any obligation on a Party with respect to a national of the other Party seeking access to its employment market, or employed on a permanent basis in its territory, and shall not confer any right on that national with respect to that access or employment.
6. This Chapter shall not apply to services supplied in the exercise of governmental authority in a Party's territory. A service supplied in the exercise of governmental authority means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers.
Article 9.2. National Treatment
Each Party shall accord to service suppliers of the other Party treatment no less favorable than that it accords, in like circumstances, to its own service suppliers.
Article 9.3. Most-favored-nation Treatment (2)
Each Party shall accord to service suppliers of the other Party treatment no less favorable than that it accords, in like circumstances, to service suppliers of a non-Party.
Article 9.4. Market Access
Neither Party may adopt or maintain, either on the basis of a regional subdivision or on the basis of its entire territory, measures that:
(a) impose limitations on:
(i) the number of service suppliers, whether in the form of numerical quotas, monopolies, exclusive service suppliers, or the requirement of an economic needs test; (ii) the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(iii) the total number of service operations or the total quantity of services output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test (3); or
(iv) the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test; or
(b) restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service.
Article 9.5. Local Presence
Neither Party may require a service supplier of the other Party to establish or maintain a representative office or any form of enterprise, or to be resident, in its territory as a condition for the cross-border supply of a service.
Article 9.6. Non-conforming Measures
1. Articles 9.2 through 9.5 shall not apply to:
(a) any existing non-conforming measure that is maintained by a Party at:
(i) the central level of government, as set out by that Party in its Schedule to Annex I; or
(ii) a local level of government (4) (5);
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(c) an amendment to any non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Article 9.2, 9.3, 9.4, or 9.5.
2. Articles 9.2 through 9.5 shall not apply to any measure that a Party adopts or maintains with respect to sectors, sub-sectors, or activities as set out in its Schedule to Annex II.
Article 9.7. Domestic Regulation
1. Where a Party requires authorization for the supply of a service, the Party's competent authorities shall, within a reasonable time after the submission of an application considered complete under its laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the Party's competent authorities shall provide, without undue delay, information concerning the status of the application. This obligation shall not apply to authorization requirements that a Party adopts or maintains with respect to sectors, sub-sectors, or activities as set out in its Schedule to Annex II.
2. With a view to ensuring that measures related to qualification requirements and procedures, technical standards, and licensing requirements do not constitute unnecessary barriers to trade in services, while recognizing the right to regulate and to introduce new regulations on the supply of services in order to meet national policy objectives, each Party shall endeavor to ensure, as appropriate for individual sectors, that such measures are:
(a) based on objective and transparent criteria, such as competence and the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the service; and
(c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.
3. If the results of the negotiations related to Article VI:4 of the GATS (or the results of any similar negotiations undertaken in other multilateral fora in which both Parties participate) enter into effect, this Article shall be amended, as appropriate, after consultations between the Parties, to bring those results into effect under this Agreement. The Parties shall coordinate on such negotiations, as appropriate.
Article 9.8. Transparency In Developing and Applying Regulations (6)
Further to Chapter 18 (Transparency):
(a) Each Party shall establish or maintain appropriate mechanisms for responding to inquiries from interested persons regarding its regulations related to the subject matter of this Chapter.
(b) If, consistent with Article 18.1 (Publication), a Party does not provide advance notice of and opportunity for comment on regulations it proposes to adopt related to the subject matter of this Chapter, it shall, to the extent possible, address in writing the reasons for not doing so.
(c) To the extent possible, each Party shall allow reasonable time between publication of final regulations related to the subject matter of this Chapter and their effective date.
Article 9.9. Recognition
1. For purposes of the fulfillment, in whole or in part, of its standards or criteria for the authorization, licensing, or certification of services suppliers, and subject to the requirements of paragraph 5, a Party may recognize the education or experience obtained, requirements met, or licenses or certifications granted in a particular country. Such recognition, which may be achieved through harmonization or otherwise, may be based upon an agreement or arrangement with the country concerned or may be accorded autonomously.
2. Where a Party recognizes, autonomously or by agreement or arrangement, the education or experience obtained, requirements met, or licenses or certifications granted in the territory of a non-Party, nothing in Article 9.3 shall be construed to require the Party to accord such recognition to the education or experience obtained, requirements met, or licenses or certifications granted in the territory of the other Party.
3. On request of the other Party, a Party shall promptly provide information, including appropriate descriptions, concerning any recognition agreement or arrangement that the Party or relevant bodies in its territory have concluded.
4. A Party that is a party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, shall afford adequate opportunity for the other Party, if the other Party is interested, to negotiate its accession to such an agreement or arrangement or to negotiate a comparable one with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that education, experience, licenses, or certifications obtained or requirements met in the other Party's territory should be recognized.
5. Neither Party may accord recognition in a manner that would constitute a means of discrimination between countries in the application of its standards or criteria for the authorization, licensing, or certification of services suppliers, or a disguised restriction on trade in services.
6. Annex 9-A shall apply to measures adopted or maintained by a Party related to the licensing or certification of professional service suppliers as set out in that Annex.
Article 9.10. Payments and Transfers (7)
1. Each Party shall permit all transfers and payments related to the cross-border supply of services to be made freely and without delay into and out of its territory.
2. Each Party shall permit such transfers and payments related to the cross-border supply of services to be made in a freely usable currency at the market rate of exchange prevailing at the time of transfer.
3. Notwithstanding paragraphs 1 and 2, a Party may prevent or delay a transfer or payment through the equitable, non-discriminatory, and good faith application of its laws related to:
(a) bankruptcy, insolvency, or the protection of the rights of creditors;
(b) issuing, trading, or dealing in securities, futures, options, or derivatives;
(c) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;
(d) criminal or penal offences; or
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings.
Article 9.11. Denial of Benefits
1. A Party may deny the benefits of this Chapter to a service supplier of the other Party if the service supplier is an enterprise owned or controlled by persons of a non-Party, and the denying Party adopts or maintains measures with respect to the non-Party or a person of the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise.
2. A Party may deny the benefits of this Chapter to a service supplier of the other Party if the service supplier is an enterprise owned or controlled by persons of a non-Party or of the denying Party that has no substantial business activities in the territory of the other Party. If, before denying the benefits of this Chapter, the denying Party knows that the enterprise has no substantial business activities in the territory of the other Party and that persons of a non-Party, or of the denying Party, own or control the enterprise, the denying Party shall, to the extent practicable, notify the other Party before denying the benefits. If the denying Party provides such notice, it shall consult with the other Party at the other Party's request.
Article 9.12. Work Program on Financial Services
Unless otherwise agreed by the Parties, the authorities responsible for financial services will meet four years after the date of entry into force of this Agreement to discuss the viability and convenience of incorporating financial services into this Agreement.
Article 9.13. Definitions
For purposes of this Chapter:
aircraft repair and maintenance services means such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and does not include so-called line maintenance;
computer reservation system services means services provided by computerized systems that contain information about air carriers' schedules, availability, fares, and fare rules, through which reservations can be made or tickets may be issued;
cross-border trade in services or cross-border supply of services means the supply of a service:
(a) from the territory of one Party into the territory of the other Party;
(b) in the territory of one Party by a person of that Party to a person of the other Party; or
(c) by a national of a Party in the territory of the other Party;
but does not include the supply of a service in the territory of a Party by a covered investment;
enterprise means an "enterprise" as defined in Article 1.3 (Definitions), and a branch of an enterprise;
enterprise of a Party means an enterprise organized or constituted under the laws of a Party, and a branch located in the territory of a Party and carrying out business activities there;
financial service means any service of a financial nature including those defined in paragraph 5(a) of the Annex on Financial Services of GATS;
professional services means services, the supply of which requires specialized postsecondary education, or equivalent training or experience, or examination and for which the right to practice is granted or restricted by a Party, but does not include services supplied by trades-persons or vessel and aircraft crew members;
selling and marketing of air transport services means opportunities for the air carrier concerned to sell and market freely its air transport services, including all aspects of marketing such as market research, advertising, and distribution. These activities do not include the pricing of air transport services nor the applicable conditions; and
service supplier of a Party means a person of that Party that seeks to supply or supplies a service (8).
Chapter Ten. Temporary Entry for Business Persons
Article 10.1. General Principles
1. This Chapter reflects the preferential trading relationship between the Parties, the Parties' mutual desire to facilitate temporary entry for business persons on a reciprocal basis and to establish transparent criteria and procedures for temporary entry in accordance with Annex 10-A, and the need to ensure border security and to protect the domestic labor force and permanent employment in their respective territories.
2. This Chapter shall not apply to measures affecting natural persons of a Party seeking access to the employment market of the other Party, nor shall it apply to measures regarding citizenship, nationality, permanent residence, or employment on a permanent basis.
Article 10.2. General Obligations
1. Each Party shall apply its measures related to the provisions of this Chapter in accordance with Article 10.1 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. Notwithstanding paragraph 1, nothing in this Chapter shall be construed to prevent a Party from applying measures to regulate the entry of business persons into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of its borders, and to ensure the orderly movement of business persons across its borders, provided that such measures are not applied in such a manner as to nullify, delay, or impair the commitments made by a Party under this Agreement. The sole fact of requiring a visa for natural persons of certain countries and not for those of others shall not be regarded as nullifying, delaying, or impairing the commitments made by a Party under this Agreement.
Article 10.3. Grant of Temporary Entry
1. Each Party shall grant temporary entry to business persons who comply with immigration measures applicable to temporary entry such as those related to public health and safety and national security in accordance with this Chapter, including Annex 10-A and Appendix 10-A-2.
2. Temporary entry granted pursuant to this Chapter shall not replace the requirements needed to carry out a profession or an activity in accordance with the specific laws and regulations in force in the territory of the Party authorizing the temporary entry.
3. A Party may refuse to issue an immigration document authorizing employment to a business person where the temporary entry of that person might adversely affect:
(a) the settlement of any labor 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.
4. When a Party refuses, pursuant to paragraph 3, to issue an immigration document authorizing employment, it shall:
(a) take measures to allow the business person to be informed in writing of the reasons for the refusal; and
(b) promptly notify the other Party in writing of the reasons for the refusal.
5. Each Party shall limit any fees for processing applications for temporary entry of business persons to the approximate cost of services rendered.
Article 10.4. Provision of Information
1. Further to Article 18.1 (Publication), each Party shall:
(a) provide the other Party with relevant materials that will enable the other Party to become acquainted with its measures related to this Chapter; and
(b) no later than six months after the date of entry into force of this Agreement, prepare and publish or otherwise make available in its own territory, and in the territory of the other Party, explanatory material regarding the requirements for temporary entry under this Chapter, in such a manner that will enable business persons of the other Party to become acquainted with those requirements.
2. Each Party shall collect, maintain and, upon request, make available to the other Party, in accordance with its laws, data regarding the granting of temporary entry under this Chapter to business persons of the other Party who have been issued immigration documentation, including data specific to each occupation, profession, or activity.
Article 10.5. Working Group
1. The Parties hereby establish a Temporary Entry Working Group, comprising representatives of each Party, including immigration officials and contact points.
2. The Working Group shall meet, when necessary, 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 and implementation of measures to further facilitate temporary entry of business persons on a reciprocal basis; and
(d) any other measures of mutual interest.
Article 10.6. Contact Points
1. The Parties hereby establish contact points who shall exchange information as described in Article 10.4 and shall receive and analyze the information mentioned under Article 10.5.
2. The contact points are:
(a) for Korea, Coordinator Border Control Division Korea Immigration Service Ministry of Justice or its successor.
(b) for Colombia, Coordinator Coordination of Visas and Immigration Ministry of Foreign Affairs or its successor.
Article 10.7. Dispute Settlement
1. A Party may not initiate proceedings under Chapter 20 (Dispute Settlement) regarding a refusal to grant temporary entry under this Chapter unless:
(a) the matter involves a pattern of practice; and
(b) the business person has exhausted the available administrative remedies regarding the particular matter.
2. The remedies referred to in paragraph 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 10.8. Relation to other Chapters
1. Nothing in this Agreement shall be construed to impose any obligation (1) on a Party regarding its immigration measures, except for this Chapter, Chapters 1 (Initial Provisions and General Definitions), 19 (Institutional Provisions), 20 (Dispute Settlement), and 22 (Final Provisions), and Articles 18.1 (Publication), 18.2 (Notification and Provision of Information), and 18.3 (Administrative Proceedings).
2. Nothing in this Chapter shall be construed to impose any obligations or commitments on a Party with respect to other Chapters of this Agreement.