(d) by the Codex Alimentarius Commission (Codex); and
(e) by other International Reference Organizations or Organizations, the use of which is agreed upon by the Parties.
Chapter 6. TECHNICAL BARRIERS TO TRADE
Article 6.1. OBJECTIVES
The objectives of this Chapter are:
1. Increase and facilitate trade in goods through proper implementation of the TBT Agreement.
2. To ensure that the standards, technical regulations and conformity assessment procedures of the Parties do not constitute unnecessary barriers to trade.
3. To promote bilateral cooperation on technical standards, technical regulations and conformity assessment procedures.
Article 6.2. AFFIRMATION OF THE TBT AGREEMENT
The rights and obligations of the Parties with respect to technical regulations, standards and conformity assessment procedures shall be governed by the TBT Agreement, which is incorporated into and made part of this Agreement mutatis mutandis.
Article 6.3. SCOPE
1. This Chapter applies to all standards, technical regulations and conformity assessment procedures of the competent authorities of the Parties that may affect, directly or indirectly, trade in goods between the Parties.
2. Notwithstanding the provisions of paragraph 1, this Chapter does not apply to:
(a) purchasing specifications established by governmental entities related to the production or consumption requirements of such entities; and
(b) sanitary and phytosanitary measures as defined in Annex A of the SPS Agreement.
Article 6.4. INTERNATIONAL STANDARDS
1. Each Party shall use relevant international standards, guidelines and recommendations as the basis for its technical regulations, conformity assessment procedures and technical standards, in accordance with Articles 2.4 and 5.4 of the TBT Agreement, as well as paragraph F of Annex 3 of the TBT Agreement.
2. In determining whether an international standard, guideline or recommendation exists within the meaning of Articles 2 and 5 and Annex 3 of the TBT Agreement, each Party shall consider the principles set out in the Decisions and Recommendations on the Principles Guiding the Elaboration of International Standards, Guidelines and Recommendations on Articles 2 and 5 and Annex 3 of the Agreement, adopted since January 1, 1995 by the WTO Committee on Technical Barriers to Trade (hereinafter referred to as the TBT Committee Decisions and Recommendations) (1)
Article 6.5. EQUIVALENCE
1, Without prejudice to the rights conferred and obligations imposed on the Parties by the TBT Agreement and the provisions of this Chapter, and to the extent of their possibilities, the Parties shall work to make their respective technical regulations and conformity assessment procedures compatible, without measures aimed at seeking equivalence implying a reduction in the level of safety or protection of life, human, animal or plant health, the environment or consumers.
2. To the effect indicated in this Article, the Parties agree:
(a) The Party where the importation will take place shall favorably consider accepting a technical regulation adopted by the other Party, where the exportation will take place, as equivalent to its own, when in cooperation with said Party, it determines that the technical regulations of said Party adequately meet its legitimate objectives.
(b) Upon written request of the Party where the export will take place, the Party where the import will take place shall communicate in writing to the former the reasons for not accepting a technical regulation as equivalent, pursuant to paragraph 1.
(c) Where a Party accepts as equivalent the technical regulations or conformity assessment procedures of a non-Party and does not accept as equivalent the technical regulations or conformity assessment procedures of the other Party, it shall explain the reasons for its decision, upon written request of the other Party.
Article 6.6. CONFORMITY ASSESSMENT
1. In order to facilitate trade, the Parties recognize that a wide range of mechanisms exist to facilitate, in the territory of one Party, the acceptance of the results of conformity assessment procedures carried out in the territory of the other Party, such as:
(a) subscription of voluntary agreements between conformity assessment bodies operating in the territory of one Party and conformity assessment bodies operating in the territory of the other Party, for the acceptance or validation of the results of conformity assessment procedures;
(b) adoption of accreditation procedures to qualify conformity assessment bodies located in the territory of the other Party;
(c) designation by a Party of conformity assessment bodies located in the territory
of the other Party;
(d) recognition of the results of conformity assessment procedures carried out in the territory of the other Party.
2. Each Party may accept the results of conformity assessment procedures carried out in the territory of the other Party, provided that they offer an equivalent security to that offered by the procedures carried out by the accepting Party, or that are carried out in its territory and the result of which is accepted by the latter.
3. In the event that a Party does not accept the results of a conformity assessment procedure carried out in the territory of the other Party, it shall, at the written request of the other Party, explain the reasons for its decision.
4. In order to achieve the implementation of the mechanisms provided for in paragraph 1, the Parties may consult and request information to determine the capacity and technical competence of the conformity assessment bodies located in the territory of the other Party.
5. Each Party shall accredit, approve, recognize or designate conformity assessment bodies located in the territory of the other Party under conditions no less favorable than those granted to conformity assessment bodies located in its territory.
Article 6.7. TRANSPARENCY
1. The Parties undertake to:
(a) electronically notify the other Party of its proposed technical regulations and conformity assessment procedures. For this purpose, the notification shall be made by providing a copy of the complete text that has been notified. The notification shall be made through the contact points established in this Agreement, and shall be sent by each Party at the same time that the notification of the proposed technical regulation or conformity assessment procedure is sent to the WTO, in compliance with the TBT Agreement;
(b) exchange information in this regard and respond to requests for information made by the other Party within a reasonable period of time. The exchange of information shall be carried out in accordance with the recommendations indicated in Section IV (Transparency) of the TBT Committee Decisions and Recommendations document referred to in Article 6.4.2;
(c) allow a period of at least 60 days and, where possible, up to 90 days from the notification of the proposed technical regulation or conformity assessment procedure, for the other Party to make written comments on the matter, so that during this period interested parties may consult, request information and submit observations, to be taken into account by the notifying Party, as provided for in Article 2.9.4 of the TBT Agreement; and
(d) consider accepting reasonable requests for an extension of the time limit set forth in subparagraph (c) for the submission of comments and observations.
Article 6.8. POINTS OF CONTACT
1. The TBT Contact Points of the Parties, for matters related to trade facilitation, cooperation and exchange of information on all matters that may arise from the use of Technical Regulations, Standards and Conformity Assessment Procedures, shall be those established under Article 10 of the TBT Agreement, listed in document G/TBT/ENQ/35 or the one in force.
2. The designated Points of Contact shall be responsible for channeling and transmitting all communications regarding issues arising with respect to this Chapter. These communications deal primarily with:
(a) implementation and administration of this Chapter;
(b) matters relating to the development, adoption and application of standards, technical regulations or conformity assessment procedures under this Chapter, the TBT Agreement or both; and
(c) exchanges of information on standards, technical regulations or conformity assessment procedures.
3. Each Contact Point shall be responsible for ensuring communication with the appropriate agencies and persons in its territory as necessary to carry out its function. The Contact Points shall communicate by e-mail, videoconference or other means agreed upon by the Parties.
4. Where a Party requests any information or explanation in accordance with the provisions of this Chapter, the other Party shall provide such information within a reasonable period. The requested Party shall endeavor to respond to each request within 60 days.
Article 6.9. COOPERATION AND TECHNICAL ASSISTANCE
1. The Parties shall strengthen cooperation on standards, technical regulations, conformity assessment procedures and metrology with a view to enhancing mutual understanding of each Party's systems, facilitate market access, strengthen confidence in those systems, and improve their regulatory practices.
2. At the request of a Party, the other Party may provide it with technical cooperation and assistance, on mutually agreed terms and conditions, to strengthen its standardization, technical regulation and conformity assessment infrastructure.
3. Each Party shall encourage its standardization, conformity assessment and regulatory bodies to cooperate with those of the other Party as appropriate in the development of their activities.
Article 6.10. TECHNICAL BARRIERS TO TRADE COMMITTEE
1. The Parties establish the Committee on Technical Barriers to Trade composed of representatives of each Party, according to Annex 6-A.
2. The functions of the Committee shall include:
(a) monitor the implementation, compliance and administration of this Chapter;
(b) to respond to and propose ways to resolve any matter that a Party presents in relation to the development, adoption, application and enforcement of technical standards, technical regulations and conformity assessment procedures. The Committee may rely on ad-hoc working groups to provide non-binding technical advice and recommendations. The Parties shall make every effort to reach a mutually agreed solution within 60 days;
(c) promote mutual cooperation between the Parties in the areas mentioned in Article 6.9 and in specific sectors when the Parties so agree;
(d) facilitate the negotiation, by agreement of the Parties, of agreements to make compatible and seek equivalence of their respective measures relating to technical regulations, standards and conformity assessment procedures;
(e) exchange information on the work being carried out in regional and multilateral fora involved in activities related to standards, technical regulations and conformity assessment procedures;
(f) report to the Free Trade Commission on the implementation of this Chapter, if deemed appropriate; and
(g) to draw up its own working rules of procedure where its members shall define, among other things, the frequency of meetings and the means of communication. The rules of procedure shall be drawn up within one year of the entry into force of this Agreement.
Article 6.11. BORDER CONTROL AND MARKET SURVEILLANCE
The Parties shall seek, to the extent possible and according to their needs, provided it is not contrary to their national interests, that their border control and market surveillance authorities:
(a) exchange experiences on their border control and market surveillance activities, except in those cases in which the documentation is confidential;
(b) ensure that such controls and surveillance are carried out by the competent authorities, for which purpose they may rely on accredited, designated or delegated bodies, avoiding conflicts of interest between such bodies and the economic agents subject to control or surveillance;
(c) report to each other information on goods produced in the territory of the other Party that have been seized or the marketing of which has been suspended due to non-compliance with technical requirements.
Chapter 7. TRADE DEFENSE MEASURES
Section A. BILATERAL SAFEGUARD MEASURES
Article 7.1. BILATERAL SAFEGUARD MEASURES
1. A Party may adopt a safeguard measure described in paragraph 2 of this Article:
(a) only during the transition period, and;
(b) if, as a result of the reduction or elimination of a customs duty under this Agreement, an originating good is being imported into the territory of the Party in such increased quantities in absolute terms or relative to domestic production and under such conditions as to constitute a substantial cause of serious injury, or a threat to a domestic industry producing a like or directly competitive good.
2. If the conditions set out in paragraph 1 are met, a Party, to the extent necessary to prevent or remedy serious injury or threat thereof and to facilitate adjustment, may:
(a) suspend the future reduction of a tariff rate in accordance with the provisions of this Agreement for a good; or
(b) increase the rate of duty for a good to a level not to exceed the lesser of:
(i) the most favored nation (hereinafter referred to as MFN) tariff rate in effect at the time the safeguard measure is adopted; and
(ii) the base tariff specified in Schedule 2-B (Tariff Elimination Program) (1)
Article 7.2. INVESTIGATION PROCEDURES AND TRANSPARENCY REQUIREMENTS
1. A Party may apply a safeguard measure only after an investigation by the Party's competent authority, in accordance with its legislation and Articles 3, 4.2 (b) and (c) of the Agreement on Safeguards and for this purpose these Articles are incorporated into and made part of this Agreement, mutatis mutandis.
2. In the investigation described in paragraph 1, the Party shall comply with the requirements of its legislation and of Article 4.2(a) of the Agreement on Safeguards, and to this end, Article 4.2 (a) is incorporated into and forms part of this Agreement, mutatis mutandis.
3. For the purposes of this Article, all information which by its nature is confidential shall be treated in accordance with the provisions of Article 3 of the Agreement on Safeguards and the requirements established in the legislation of each Party.
4. Each Party shall establish or maintain equitable, timely, transparent and effective procedures for the application of safeguard measures, in accordance with the requirements set out in paragraphs 1, 2 and 3.
5. Each Party shall ensure that its competent authorities complete any such investigation within the time limit established in its legislation, not exceeding 12 months from the date of its initiation. It shall be possible to extend it for a maximum period of up to two additional months, by reasoned resolution of the competent investigating authority.
Article 7.3. BILATERAL PROVISIONAL SAFEGUARD MEASURES
1, A Party may adopt a provisional safeguard measure, in critical circumstances where any delay would cause damage difficult to repair to the domestic industry from like or directly competitive goods, based on a preliminary determination that there is clear evidence that increased imports have caused, or are threatening to cause, serious injury to the domestic industry.
2. The duration of the provisional measure shall not exceed 200 days and shall take the form of tariff increases, which shall be promptly refunded if the investigation does not determine that increased imports have caused or threatened to cause serious injury to a domestic industry.
3. The duration of any provisional measure shall be counted as part of the period described in Article 7.4.1(a).
Article 7.4. RULES FOR a BILATERAL SAFEGUARD MEASURE
1, A Party may not maintain a bilateral safeguard measure:
(a) for a period exceeding two years, except that the period may be extended for an additional period of two years if the competent investigating authorities of the importing Party determine, in accordance with the relevant procedures set out in Article 7.2, that the measure continues to be necessary to prevent or remedy serious injury and that there is evidence that the domestic industry is in the process of adjustment;
(b) after the expiration of the transition period; or
(c) against a commodity more than once.
2. A Party shall exclude from the application of a safeguard measure imports of goods originating in the other Party, when such good is free of duties prior to the entry into force of this Agreement, derived from Partial Scope Agreement No. 29, signed between the Republic of Colombia and the Republic of Panama on July 9, 1993.
3. Upon termination of the application of a bilateral safeguard measure, the Party shall establish the rate of duty that would have been in effect if the measure had not been applied, in accordance with the Party's Schedule to Annex 2-B (Tariff Elimination) for the corresponding level of relief.
4. The Party applying a bilateral safeguard measure under Article 7.1 shall provide to the other Party mutually acceptable trade liberalization compensation in the form of concessions with substantially equivalent trade effects or equivalent to the value of the additional duties expected to result from the measure. If the Parties are unable to reach a decision on compensation, the Party on whose goods the measure applies may impose tariff measures with substantially equivalent trade effects to those of the bilateral safeguard measure taken pursuant to Article 7.1. The Party adopting the tariff measures on any of the goods shall apply the measure only for the minimum period necessary to achieve substantially equivalent effects and in any event only while the bilateral safeguard measure taken pursuant to Article 7.1 is in effect.
Article 7.5. NOTIFICATION AND CONSULTATION
1. A Party shall promptly notify the other Party in writing, when:
(a) initiate a safeguard procedure in accordance with this Chapter; and
(b) adopt a decision to apply or extend a provisional or definitive safeguard measure.
2. A Party shall provide to the other Party a copy of the public version of the report of its competent investigating authority prior to the measures referred to in paragraph 1(b), in accordance with Article 7.2.
3. Upon request of a Party whose good is subject to a safeguard proceeding pursuant to this Chapter, the Party conducting the proceeding shall, within 15 days thereafter, initiate consultations at the request of the Party to review the notifications pursuant to paragraph 1, or any public notice or report issued by the competent investigating authority in connection with such proceeding.
4. Ifa satisfactory solution is not reached within 45 days of the consultations, the importing Party may take measures to remedy the circumstances in accordance with this Section. If this is the case, the Party applying the measure shall notify the other Party in writing.
Article 7.6. DEFINITIONS
For the purposes of this Chapter:
threat of serious harm means serious harm that is clearly imminent based on facts and not based on allegation, conjecture or remote possibility;
competent investigating authority is:
(a) in the case of the Republic of Colombia: Ministry of Commerce, Industry and Tourism; and
(b) in the case of Panama: The General Directorate of Commercial Defense of the Ministry of Commerce and Industries,
or their successors;
substantial cause means a cause that is important and no less important than any other cause;
serious injury means a significant overall deterioration of a domestic industry; bilateral safeguard measure means a safeguard measure described in Article 7.1(2);
transition period means the 10-year period beginning upon entry into force of this Agreement. For those goods for which the period of relief specified in the Schedule to Annex 2-B (Tariff Elimination) of the Party applying the measure is greater than or equal to 10 years, the transition period means the period of elimination set out in the relevant Schedule; and domestic industry means, with respect to an imported good, the group of producers of a like or directly competitive good operating in the territory of a Party or those whose collective output of a like or directly competitive good constitutes a major proportion of the total domestic production of that good.
Section B. GLOBAL SAFEGUARD MEASURES
1. Each Party retains its rights and obligations under Article XIX of the GATT 1994 and the Agreement on Safeguards, which shall govern exclusively the application of global safeguard measures, including the settlement of a dispute with respect to such a measure.
2. A Party may not adopt or maintain, with respect to the same good, and during the same period:
(a) a bilateral safeguard measure; and
(b) a global safeguard measure under Article XIX of GATT 1994 and the Agreement on Safeguards.
Section C. ANTIDUMPING AND COUNTERVAILING DUTY MEASURES
1. Each Party retains its rights and obligations under Article VI of the GATT 1994, the Agreement on Implementation of Article VI of the GATT 1994 and the WTO Agreement on Subsidies and Countervailing Measures, with respect to the application of antidumping and countervailing duties.
2. This Section shall not be subject to Chapter 21 (Dispute Settlement) of this Agreement.
Chapter 8. INTELLECTUAL PROPERTY
Article 8.1. RECOGNITION OF THE PROVISIONS OF THE AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS
The Parties acknowledge and affirm their rights and obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter "TRIPS Agreement") and other intellectual property agreements to which they are both Parties.
Article 8.2. GENERAL PROVISIONS.
1. The Parties recognize the need to maintain a balance between the rights of holders and the public interest, in particular public health, food and nutritional security of the population, education, research, technology transfer, as well as access to information within the framework of the exceptions and limitations established in the legislation of each Party.
2. The Parties recognize the importance of the principles set out in the Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2), adopted on November 14, 2001 by the WTO at its fourth Ministerial Round, held in Doha, Qatar, and the Decision of the General Council of the World Trade Organization on the Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, adopted on August 30, 2003. In this regard, the Parties shall ensure that the interpretation and implementation of the rights and obligations assumed under this Chapter shall be consistent with such Declaration.
Likewise, the Parties recognize the importance of promoting the implementation and good use of Resolution WHA61.21, global strategy and plan of action on public health, innovation and intellectual property, adopted on May 24, 2008 during the 61st Assembly of the World Health Organization.
3. Each Party, in formulating or amending its laws and regulations, may adopt the necessary measures and make use of flexibilities and exceptions to protect public health and nutrition of the population, or to promote the public interest in sectors of vital importance to its socioeconomic and technological development.
4. In accordance with the TRIPS Agreement, the Parties may adopt the necessary measures to prevent the abuse of intellectual property rights by their holders or the use of practices that unreasonably restrain trade or adversely affect the international transfer of technology.
5. The Parties recognize that technology transfer contributes to the strengthening of national capacities in order to establish a solid and viable technological base.
Article 8.3. TRADITIONAL KNOWLEDGE
Each Party, in accordance with its legislation, recognizes the intellectual property rights of indigenous, Afro-descendant and local communities, and reiterates its commitment to respect, preserve and maintain the traditional knowledge, innovations and practices of indigenous, Afro-descendant and local communities in the territories of the Parties.
Article 8.4. GEOGRAPHICAL INDICATIONS
Each Party shall recognize and protect the geographical indications of the other Party, in accordance with the provisions of the TRIPS Agreement and the law of the Party in which protection and enforcement is sought.
Article 8.5. TRADEMARKS
1. Any sign or combination of signs capable of distinguishing goods or services may constitute a trademark. Such signs may consist, in particular, of words, including combinations of words, personal names, letters, numerals, figurative elements, sounds and combinations of colors, as well as any combination of these signs. Where signs are not inherently capable of distinguishing the relevant goods or services, the Parties may make the registrability of such signs subject to the distinctiveness they have acquired through use.
2. To classify the goods or services to which the trademarks are applied, the Parties shall use the International Classification of Goods and Services for the Purposes of the Registration of Marks, established by the Nice Agreement of June 15, 1957, as amended from time to time.
3. Words, letters, characters or signs used by indigenous, Afro-descendant or local communities to distinguish the way of processing products, finished products or services, as well as those that constitute their cultural practice and expression, may not be registered as trademarks, or as elements thereof, unless the application is formulated for their benefit by the community itself or with its express consent.
4. In accordance with the legislation of the Party where the holder has his right protected under this Agreement, he may bring a civil, criminal or administrative action before the competent national authority against any person who infringes his right or against any person who performs acts that show the imminence of an infringement.
If the legislation of the Party so permits, the competent national authority may initiate ex officio the infringement proceedings provided for in such legislation.
In case of co-ownership of a right, any of the co-owners may bring an action against an infringement without the consent of the others being necessary, unless otherwise agreed between the co-owners.
5. Each Party shall cooperate for the purpose of providing effective protection for well-known trademarks in its territory, in accordance with the provisions of Article 6bis of the Paris Convention (1967), Article 16 (2) and (3) of the TRIPS Agreement and its legislation.
6. Within the procedure provided for in the legislation of each Party, in order to oppose the application for registration of a trademark, or to demand the nullity and/or cancellation of the registration, no Party shall require as a condition thereof, that the well-known trademark has been registered in the territory of the Party in which the protection is claimed (1).
7. Each Party shall establish measures, in accordance with its legislation, either ex officio or at the request of the interested party, to refuse or cancel the registration and prohibit the use of a trademark that is identical or similar to a trademark that the competent authority of the Party of registration or use considers to be a well-known trademark in its territory, for related goods or services, if it is likely that the trademark is identical or similar to a trademark that the competent authority of the Party of registration or use considers to be a well-known trademark in its territory, for related goods or services:
(a) the use of that mark causes confusion;
(b) mislead or deceive;