2. In the interest of promoting improvements to, and clarifications of, the relevant provisions of the WTO Agreement, the Parties recognise the desirability of:
(a) establishing a domestic process whereby the investigating authorities can consider, in appropriate circumstances, broader issues of public interest, including the impact of antidumping duties on other sectors of the domestic economy and on competition;
(b) providing for the possibility of imposing antidumping duties that are less than the full margin of dumping in appropriate circumstances;
(c) having a transparent and predictable method for the imposition and collection of antidumping duties that provides for the expeditious assessment of definitive antidumping duties; and
(d) assessing the conditions of competition among the imported products and the conditions of competition between the imported products and the like domestic product pursuant to Article 3.3 of the WTO Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994.
3. In the interest of ensuring procedural fairness and transparency in antidumping investigations, the Parties reaffirm their full adherence to their obligations under the relevant provisions of the WTO Agreement including in respect of:
(a) notification to the government of the exporting country upon receipt of a properly documented application for the initiation of an investigation;
(b) public notice and notification to all interested parties of the initiation of an investigation;
(c) notification to all interested parties of the information required by the investigating authorities in the investigation, and the provision of ample opportunity to present evidence in respect of the investigation;
(d) making available the application for the initiation of an investigation to all interested parties and the government of the exporting country upon the initiation of an investigation;
(e) making available to all interested parties all evidence submitted by other parties, subject to the requirements to protect confidential information;
(f) the provision of a reasonable opportunity for interested parties to defend their interests, including in the context of a public hearing, by presenting their views, commenting on evidence and views of others, and offering rebuttal evidence and arguments;
(g) the provision of a reasonable opportunity for interested parties to see all information that is relevant to the presentation of their case, subject to the requirements to protect information designated as confidential by the provider;
(h) the provision to interested parties of an explanation of the methodologies used in determining the margin of dumping, and the provision of opportunities to comment on the preliminary determination;
(i) procedures for the submission, treatment and protection of confidential information submitted by parties, procedures to ensure that confidential treatment is warranted and procedures to ensure that adequate public summaries of confidential information are available;
(j) public notice and notice to all interested parties of preliminary and final determinations, which include sufficiently detailed explanations of the determinations of dumping and injury including in respect of all relevant matters of fact and law;
(k) public notice and notice to interested parties of the imposition of any provisional or final measures; and
(l) the provision of procedures for the judicial review of administrative actions relating to final determinations and reviews of determinations.
4. In an investigation, each Party shall provide the other Party with information concerning the point of contact in the investigating authority for that investigation.
Chapter VII. Sanitary and Phytosanitary Measures
Article VII.01. Sanitary and Phytosanitary Measures
1. The Parties reaffirm their rights and obligations under the WTO Agreement on the Application of Sanitary and Phytosanitary Measures.
2. Each Party shall, as far as possible:
(a) facilitate the provision to the other Party of technical advice, information and assistance, on mutually agreed terms and conditions, to enhance the Partys sanitary and phytosanitary (SPS) measures and related activities, processes and systems;
(b) extend the assistance mentioned in subparagraph (a), inter alia, in the areas of:
(i) processing technologies;
(ii) exchange of information on new research data;
(iii) infrastructure;
(iv) institutional and regulatory co-operation;
(v) harmonization;
(vi) mutual recognition and equivalence agreements;
(vii) risk assessment;
(viii) transparency;
(ix) recognition of pest or disease free areas;
(x) control, inspection and approval procedures;
(xi) identification, consultation and resolution of SPS-related problems;
(xii) technical expertise; and (xiii) training and equipment.
Chapter VIII. Technical Barriers to Trade
Article VIII.01. Technical Barriers to Trade
1. The Parties reaffirm their rights and obligations under the WTO Agreement on Technical Barriers to Trade (TBT Agreement).
2. The Parties shall develop programs for technical cooperation aimed at achieving full and effective compliance with the obligations set forth in the TBT Agreement. To this end, the Parties shall encourage their competent authorities in the area of technical regulations, conformity assessment procedures and standards, to undertake the following activities:
(a) Promote bilateral institutional and regulatory information exchange and technical cooperation;
(b) Promote bilateral coordination by appropriate agencies in multilateral and international fora on technical regulations, conformity assessment procedures and standards;
(c) Facilitate the provision to the other Party of technical advice, information and assistance, on mutually agreed terms and conditions, to enhance the Partys TBT measures and related activities, processes and systems;
(d) Extend the assistance mentioned in subparagraph (c), inter alia, in the areas of:
(i) processing technologies;
(ii) exchange of information on new research data;
(iii) infrastructure;
(iv) institutional and regulatory co-operation;
(v) harmonization;
(vi) mutual recognition and equivalence agreements;
(vii) transparency;
(viii) conformity assessment procedures;
(ix) identification, consultation and resolution of TBT-related problems;
(x) technical expertise; and
(xi) training and equipment.
3. The Parties shall include technical cooperation and coordination issues related to standards, technical regulations and conformity assessment procedures on the agenda of the Free Trade Coordinators as required.
Part THREE. Services and Investment
Chapter IX. Services
Article IX.01. General Provisions
1. The Parties recognise the increasing importance of trade in services in their economies. In their efforts to gradually develop and broaden their relations, the Parties shall cooperate in the WTO and plurilateral fora, with the aim of creating the most favourable conditions for achieving further liberalisation and additional mutual opening of markets for the trade in services.
2. With a view to developing and deepening their relations under this Agreement, the Parties agree that within two (2) years of the date of entry into force of this Agreement, they will review developments related to trade in services and consider the need for further disciplines in this area.
3. Upon request of a Party, the other Party shall provide information, on a timely basis, on measures that may have an impact on the trade in services.
Article IX.02. Services
1. The Parties herein recognise the importance of their rights and obligations assumed in the General Agreement on Trade in Services (GATS).
2. Each Party shall ensure that its competent authorities, within a reasonable time after the submission of an application for a license or certification by a national of the other Party:
(a) where the application is complete, make a determination on the application and inform the applicant of that determination; or
(b) where the application is not complete, inform the applicant without undue delay of the status of the application and the additional information that is required under the Partys law.
3. (a) The Parties to this Agreement shall encourage bodies responsible for
The regulation of professional services in their respective territories to:
(i) ensure that measures relating to the licensing or certification of nationals of the other Party are based on objective and transparent criteria, such as competence and the ability to provide a service; and
(ii) co-operate with the view to developing mutually acceptable standards and criteria for licensing and certification of professional service providers.
(b) The following elements may be examined with regard to the standards
And criteria referred to in subparagraph (a)(ii):
(i) education - accreditation of schools or academic programs;
(ii) examinations - qualifying examinations for licensing, including alternative methods of assessment such as oral examinations and interviews;
(iii) experience - length and nature of experience required for licensing;
(iv) conduct and ethics - standards of professional conduct and the nature of disciplinary action for non-conformity with those standards;
(v) professional development and re-certification - continuing education and ongoing requirements to maintain professional certification;
(vi) scope of practice - extent of, or limitations on, permissible activities;
(vii) local knowledge - requirements for knowledge of such matters as local laws, regulations, language, geography or climate; and
(viii) consumer protection - alternatives to residency requirements, including bonding, professional liability insurance and client restitution funds, to provide for the protection of consumers.
(c) These bodies shall report on the result of their discussions related to the development of mutually acceptable standards mentioned in subparagraph (a)(ii) and, as appropriate, provide any recommendations to the Coordinators.
(d) With respect to the recognition of qualification and licensing requirements, the Parties note the existence of rights and obligations with respect to each other under Article VII (Recognition) of the GATS.
(e) For the purpose of this paragraph, professional services means services, the provision of which requires specialised post-secondary education, or equivalent training or experience, and for which the right to practise is granted or restricted by a Party, but does not include services provided by trades-persons or vessel and aircraft crew members.
Chapter X. Investment
Article X.01. General Provisions
1. The Parties recognise the increasing importance of investment in their economies. In their efforts to gradually develop and broaden their relations, the Parties shall cooperate in the WTO and plurilateral fora, with the aim of creating the most favourable conditions for achieving further liberalisation and additional mutual opening of markets for investment.
2. With a view to developing and deepening their relations under this Agreement, the Parties agree that within two (2) years of the date of entry into force of this Agreement, they shall review developments related to investment, and consider the need for further disciplines in this area.
3. Upon the request of a Party, the other Party shall provide information, on a timely basis, on measures that may have an impact on investment.
Article X.02. Definitions
For the purposes of this Chapter:
Investors means, for either Party, the following subjects who have made investments in the territory of the other Party in accordance with the legislation of the latter and the provisions of this Chapter:
(a) any natural person who is a national of one of the Parties; or
(b) legal persons, including companies, business associations, corporations, branch offices and any other organization duly incorporated or constituted in accordance with the laws of that Party, which has its seat in the territory of that Party and carries on business in the territory of that Party whether or not it is for profit;
Investment means any kind of asset, defined in accordance with the laws of the host country, which the investor of one Party invests in the territory of the other Party in accordance with the latter's laws and regulations, and includes, in particular, though not exclusively:
(a) movable and immovable property and any other rights in rem such as mortgages, liens or pledges, and similar rights;
(b) shares, stock, securities and debentures of companies or any other form of participation in a company;
(c) claims to money or to any performances having an economic value directly related to an investment;
(d) intellectual property rights, including copyright and related rights, trade marks, geographical indications, drawings, models and industrial designs, patents, layout-designs, distinctive signs and know-how;
(e) rights conferred by law or under contract, to undertake any economic and commercial activity, including any rights to search for, cultivate, extract or exploit natural resources.
Any change in the form of an investment does not affect its character as an investment; and
Returns means all amounts yielded by an investment and in particular, though not exclusively, profits, interests, capital gains, dividends, royalties, fees or other current income.
Article X.03. Promotion and Admission
1. Each Party shall encourage and create favorable conditions in its territory for investments of the other Party, and shall admit such investments in accordance with its laws and regulations.
2. Once a Party has admitted an investment in its territory, it shall provide, in accordance with its laws and regulations, all necessary permits related to such investment.
Article X.04. Protection
1. Investments of either Party shall at all times be accorded fair and equitable treatment, and shall enjoy full legal protection and security in accordance with international law.
2. Neither of the Parties shall obstruct, in any manner, either through arbitrary or discriminatory measures, the enjoyment, use, management, conduct, operation and sale or other disposition thereof of such investments. Each Party shall comply with any obligation assumed regarding investments of the other Party.
3. Returns from investments and in the event of their re-investment the returns therefrom shall enjoy the same protection as the investment.
Article X.05. National and Most Favored Nation Treatment
1. In accordance with its laws and regulations, each Party shall accord to investments of the other Party in the former's territory, treatment no less favourable than that granted to investment of its own investors.
2. Each Party shall accord to investments and returns of the other Party in the former's territory, treatment no less favourable than that granted to investments of investors of any non-Party.
3. Each Party shall accord the treatment which is more favourable to the investment of the other Party, either national or most favored nation treatment.
4. Nothing in this Article shall be construed so as to oblige a Party to extend to investments of investors of the other Party advantages resulting from any existing or future association or participation in a free trade area, customs union, common market, economic and monetary union or any other similar institution of economic integration.
5. Nothing in this Article shall be construed so as to oblige a Party to extend to investments of investors of the other Party deductions, fiscal exemptions or any other similar advantages resulting from double taxation agreements or any other agreement regarding tax matters negotiated by one Party and any other non-Party.
Article X.06. Expropriation and Compensation
1. Investments of either Party in the territory of the other Party shall not be nationalized, expropriated or subjected to measures having an equivalent effect (hereinafter referred to as "expropriation"), except in cases when any of such measures have been adopted for the public good, in accordance with the due process of law, on a non-discriminatory basis and against prompt, adequate and effective compensation.
2. The compensation shall amount to the market value of the expropriated investment immediately before the expropriation or impending expropriation became public knowledge, whichever is earlier. It shall include interest from the date of dispossession of the expropriated property until the date of payment. Interest shall be based on the average deposit rate prevailing in the national banking system of the Party where the expropriation was made. Compensation shall be paid without undue delay, in convertible currency, and be effectively realizable and be freely transferable.
3. The investor affected shall have a right, under the law of the Party making the expropriation, to prompt review, by a judicial or other independent authority of that Party, of his or its case and of the valuation of his or its investment in accordance with the principles set out in this Article.
4. Nothing set out in this Article shall affect the ability of a government of a Party to negotiate with the other Party or any other non-Party, quantitative restrictions of its exports or its ability to assign export quotas negotiated through appropriate mechanisms and criteria. Consequently, any dispute in this regard will be resolved in accordance with the trade agreements applicable between the Parties. Thus, nothing in this Article shall be used as a basis for an investor to argue that the effects derived from the distribution or administration of a quota represent an indirect expropriation.
Article X.07. Compensation for Losses
Investors of one Party whose investments in the territory of the other Party suffer losses owing to war or other armed conflict, revolution, a state of national emergency, insurrection, riot or any other similar event, shall be accorded by the latter Party treatment, as regards restitution, indemnification, compensation or other settlement, no less favourable than that which the latter Party accords to investments of its own investors or investments of investors of any non-Party, whichever is more favourable to the investment of the investor of the former Party. All payments that may result shall be deemed freely transferable.
Article X.08. Transfers
1. Each Party shall permit investors of the other Party, in accordance with its laws and regulations, the unrestricted transfer of payments related to their investments. Such transfers include, in particular, though not exclusively, the following:
(a) initial capital and additional amounts needed to maintain, expand and develop the investment;
(b) funds in repayment of loans made pursuant to Article X.02, subparagraph (c) under the definition investment;
(c) compensation referred to in Articles X.06 and X.07;
(d) proceeds derived from the partial or total sale or liquidation of the investment;
(e) proceeds derived from any compensation owed to an investor by virtue of a resolution of the dispute settlement procedures established by this Chapter;
(f) returns;
(g) the earnings of nationals of one Party who are allowed to work in connection with an investment in the territory of the other.
2. Transfers referred to in this Article shall be effected in freely convertible currency at the applicable exchange rate on the date of the transfer without undue delay on a non-discriminatory basis. Transfers shall be considered to have been made "without undue delay when they have been made within the period normally necessary for the completion of the transfer.
3. Notwithstanding the provisions of paragraph 1 of this Article, each Party shall be entitled, under circumstances of exceptional or serious balance of payments difficulties, to limit transfers temporarily, on a fair and non-discriminatory basis, and in accordance with internationally accepted criteria. Limits on transfers adopted or maintained by a Party, as well as their elimination, under this paragraph shall be notified promptly to the other Party.
4. When transfers are restricted by a Party due to balance of payments difficulties, the Party shall implement measures or a programme in accordance with the rules of the International Monetary Fund.
5. Notwithstanding the above, a Party may prevent a transfer through the equitable and non-discriminatory application of its laws relating to:
(a) bankruptcy, insolvency or the protection of the rights of creditors;
(b) issuing, trading or dealing in securities;
(c) criminal or administrative offenses;
(d) failure to report transfers of currency or other monetary instruments; or
(e) ensuring the satisfaction of judgments and awards in adjudicatory proceedings.
Article X.09 Application of Other Rules
If the laws of one of the Parties or any current or future obligation under International Law, provide more favourable conditions than those granted by this Chapter to investments of investors of the other Party, the most favourable provision shall apply.
Article X.10. Subrogation
If a Party or its designated agency, makes a payment under an indemnity against non-commercial risks given in respect of an investment in the territory of the other Party, the latter Party shall recognize the assignment, under the law of that country, of any right or claim from the investor to the former Party, or its designated agency, as well as the entitlement by virtue of subrogation, to exercise the rights and enforce the claims of that investor. This subrogation shall entitle the former Party, or its designated agency, to assert any such right or claim to the same extent as its predecessor.
Article X.11. Settlement of Investment Disputes between One Party and Investors of the other Party
1. Any investment dispute which may arise between one Party and an investor of the other Party with respect to matters regulated by this Chapter, shall be notified in writing by the investor to the host Party. Such notification shall include in detail all relevant information. To the extent possible, the dispute shall be settled amicably between the parties.
2. If a dispute has not been settled amicably within a period of six (6) months from the date of the notification referred in paragraph 1 above, it may be submitted, at the choice of the investor concerned, either to the competent Courts or Administrative Tribunals of the Party in whose territory the investment was made, or to international arbitration. Where the dispute is referred to international arbitration, the investor may submit the dispute to either:
(a) the International Centre for the Settlement of Investment Disputes (ICSID), established by the "Convention on the Settlement of Investment Disputes between States and Nationals of other States" opened for signature at Washington D.
C. on 18 March 1965, provided both Parties are signatories of the ICSID Convention; or