1. Each Party shall adopt or maintain competition laws that promote and protect the competitive process in its markets by proscribing conducts or transactions referred to in Article 20.1.2. Each Party shall take appropriate actions with respect to those conducts or transactions with the objective of promoting an efficient functioning of the markets and consumer welfare.
2. Each Party shall establish or maintain an authority or authorities responsible for the enforcement of its competition laws.
3. Each Party shall ensure that any exemptions to the competition laws shall be stipulated in its legislation and implemented transparently.
Article 20.3. IMPLEMENTATION
1. The enforcement of competition policies by the competition authority, shall be consistent with the principles of transparency, timeliness, non-discrimination and procedural fairness.
2. Each Party shall provide persons subject to the imposition of a sanction or remedy under its competition legislation with reasonable opportunity to present evidence, to be heard and to seek judicial review of the sanction or remedy, according to the legislation of each Party.
3. Each Party shall make publicly available its competition legislation.
4. Each Party shall ensure that all final decisions finding a violation of its competition laws are provided in written form and set out any relevant factual findings and legal basis on which the decision is based, according to the legislation of each Party
Article 20.4. COOPERATION
1. The Parties recognize the importance of cooperation and coordination between their respective competition authorities to promote the effective enforcement of their competition legislation and to fulfill the objectives of this Agreement.
2. Accordingly, the Parties shall cooperate in relation to the enforcement of their respective competition legislation and policies, through mechanisms such as notification, consultation, exchange of information, and technical assistance, according to the legislation of each Party.
3. This cooperation shall not prevent the Parties from taking autonomous decisions.
Article 20.5. NOTIFICATIONS
1. Each Party, through its competition authority, shall notify to the competition authority of the other Party of an enforcement activity regarding conducts or transactions referred to in Article 20.1.2, if it considers that such enforcement activity may substantially affect important interests of the other Party.
2. Provided that it is not contrary to the Party’s competition legislation and does not affect any investigation being carried out, the notification shall take place at an early stage of the enforcement activity
Article 20.6. CONSULTATIONS
1. To foster mutual understanding, or to address specific matters that arise under this Chapter, a Party should enter into consultation upon request of the other Party without prejudice to the autonomy of each Party to develop, maintain and enforce its competition legislation.
2. The Party to which a request for consultations has been addressed shall give full and sympathetic consideration to the concerns of the other Party.
Article 20.7. EXCHANGE OF INFORMATION AND CONFIDENTIALITY
The competition authority of a Party, upon request of the competition authority of the other Party, shall endeavor to provide non-confidential information to facilitate effective enforcement of their respective competition legislation, provided that it does not affect any ongoing investigation and is compatible with the legislation of each Party.
Article 20.8. TECHNICAL ASSISTANCE
1. The Parties may provide each other with technical assistance, within the available resources, in any areas they consider appropriate, including exchange of experiences, capacity building for the implementation of their competition legislation and policies, and promotion of competition culture.
2. On the date of entry into force of this Agreement, the Parties shall notify the contact point in the competition authority to whom any request of technical assistance shall be submitted.
Article 20.9. STATE ENTERPRISES AND DESIGNATED MONOPOLIES
1. Nothing in this Chapter shall be construed to prevent a Party from establishing or maintaining state enterprises and/or designated monopolies.
2. The Parties shall ensure that state enterprises and designated monopolies are subject to their respective competition legislation and do not adopt or maintain any conducts or transactions referred to in Article 20.1.2, that affect trade between the Parties, insofar as the application of this provision does not obstruct the performance, in law or in fact, of the particular tasks assigned to them.
Article 20.10. DISPUTE SETTLEMENT
Neither Party shall have recourse to Chapter 22 (Dispute Settlement) for any matter arising under this Chapter.
Article 20.11. TRANSITIONAL ARRANGEMENTS
If, at the date of entry into force of this Agreement, a Party has not yet adopted a competition law or established a competition authority, the Party shall do so within a period of two years.
Article 20.12. DEFINITIONS
For the purposes of this Chapter:
competition authority means:
(a) for Korea, the Korea Fair Trade Commission;
(b) for Costa Rica, the Commission for the Promotion of Competition (Comisión para Promover la Competencia) and Superintendence of Telecommunications (Superintendencia de Telecomunicaciones);
(c) for El Salvador, the Superintendence of Competition (Superintendencia de Competencia);
(d) for Honduras, the Commission for the Defense and Promotion of Competition (Comisión para la Defensa y Promoción de la Competencia);
(e) for Nicaragua, the National Institute for the Promotion of Competition (Instituto Nacional de Promoción de la Competencia); and
(f) for Panama, the Authority for Consumer Protection, and Competition Defense (Autoridad de Protección al Consumidor y Defensa de la Competencia), or their successors.
competition law means:
(a) for Korea, the Monopoly Regulation and Fair Trade Act;
(b) for Costa Rica, the Law for the Promotion of Competition and Effective Consumer Protection (Ley para la Promoción de la Competencia y Defensa Efectiva del Consumidor), Law No. 7472 of December 20th, 1994; and General Telecommunications Law (Ley General de Telecomunicaciones), Law No. 8642 of June 30th, 2008;
(c) for El Salvador, the Competition Law (Ley de Competencia), approved by Legislative Decree No. 528 of November 26th, 2004;
(d) for Honduras, the Law for the Defense and Promotion of Competition (Ley para la Defensa y Promoción de la Competencia), approved by Decree No. 357-2005 of February 4th, 2006;
(e) for Nicaragua, the Law for the Promotion of Competition (Ley de Promoción de la Competencia), approved by Law No. 601 of September 28th, 2006; and
(f) for Panama, the Law that Establishes Standards for Consumers Protection and Competition Defense (Ley que Dicta Normas de Protección al Consumidor y Defensa de la Competencia), approved by the Law No. 45 of October 31th, 2007, and their implementing regulations and amendments.
Chapter 21. INSTITUTIONAL PROVISIONS
Article 21.1. JOINT COMMITTEE
1. The Parties hereby establish the Joint Committee, comprising cabinet-level representatives of the Parties, as set out in Annex 21-A, or their designees.
2. The Joint Committee shall:
(a) supervise the implementation of this Agreement;
(b) supervise the work of all committees, working groups, and other bodies established under this Agreement, referred to in Annex 21-C;
(c) consider ways to further enhance trade relations between the Parties;
(d) seek to resolve disputes that may arise regarding the interpretation or application of this Agreement;
(e) assess the outcomes of the application of this Agreement;
(f) oversee the further elaboration of this Agreement;
(g) establish the amount of remuneration and expenses that will be paid to panelists; and
(h) consider any other matter that may affect the operation of this Agreement.
3. The Joint Committee may:
(a) establish and delegate responsibilities to ad hoc and standing committees, working groups, or other bodies;
(b) seek the advice of non-governmental persons or groups;
(c) make a recommendation to the Parties to consider amendments to this Agreement;
(d) issue interpretations of the provisions of this Agreement;
(e) adopt its own rules of procedure; and
(f) modify in fulfillment of the Agreement’s objectives:
(i) the Schedules to Annex 2-B (Elimination of Customs Duties) with the purposes of adding one or more goods excluded in the Schedule of a Party or accelerating the tariff reduction;
(ii) the specific rules of origin established in Annex 3-A (Product Specific Rules of Origin), any uniform regulations on origin procedures that the Parties may develop and the format of the Certificate of Origin set out in Annex 3-C (Certificate of Origin);
(iii) Annex 8-A (Coverage);
(iv) the subheadings of the goods classified as digital products fixed on a carrier medium set out in Annex 14-A (Digital Product Fixed on a Carrier Medium); and
(v) the model rules of procedure for panels and code of conduct of Chapter 22 (Dispute Settlement); and
(g) take such other action in the exercise of its functions as the Parties may agree.
4. Unless the Parties otherwise agree, the Joint Committee shall convene:
(a) in regular session every year, the Joint Committee meetings shall be chaired jointly by Korea and by one of the Republics of Central America. Unless otherwise decided by the Parties, sessions of the Joint Committee shall be held alternatively in the territory of Korea and one of the Republics of Central America; and
(b) in special session within 30 days of the request of a Party, who may request at any time, through a notice in writing to the other Parties with such sessions to be held in the territory of the other Party or at such location as the Parties may agree or by any technological means available.
5. Each Party shall treat any confidential information exchanged in relation to a meeting of the Joint Committee or any body established under this Agreement or by the Joint Committee on the same basis as the Party providing the information.
6. All decisions and recommendations of the Joint Committee and all committees, working groups, and other bodies established under this Agreement shall be taken by consensus of the Parties without prejudice to the provisions of paragraphs 9 and 10.
7. Each Party shall implement, in accordance with its applicable legal procedures, any modification referred to in paragraph 3(f) within such period as the Parties may agree.
8. When the Joint Committee adopts a decision in accordance with paragraph 3(f) in the case of bilateral affairs in accordance with paragraphs 9 and 10, the adoption, approval and implementation of this decision by the other Parties is not required.
9. Notwithstanding the provisions of paragraph 1, to discuss bilateral issues of interest to Korea and one or more Republics of Central America, the Joint Committee may meet and adopt decisions when the officials of these Parties meet, provided they give sufficient advanced notice to the other Republics of Central America to enable them to participate in the meeting.
10. A decision or recommendation adopted by the Joint Committee pursuant to paragraph 9 shall take effect for the Parties who adopted the decision or recommendation.
Article 21.2. AGREEMENT COORDINATORS
1. Each Party shall appoint an Agreement Coordinator, as set out in Annex 21-D, or the person designated by the Party.
2. The coordinators shall work jointly to develop agendas and make other preparations for Joint Committee meetings and shall follow up on Joint Committee decisions or recommendations, as appropriate.
Article 21.3. CONTACT POINTS
1. Each Party shall designate a contact point by the entry into force of this Agreement to facilitate communications between the Parties on any matter covered by this Agreement. The designation of contact points is without prejudice to the specific designation of competent authorities under specific provisions of this Agreement.
2. Upon request of the other Party, a Party’s contact point shall identify the office or official responsible for the matter and assist, as necessary, in facilitating communications with the other Party.
Chapter 22. DISPUTE SETTLEMENT
Section A. Dispute Settlement
Article 22.1. COOPERATION
1. The Parties shall at all times endeavor to agree on the interpretation and application of this Agreement, and shall make every attempt through cooperation and consultations to arrive at a satisfactory resolution of any matter that might affect its operation.
2. All solutions of matters raised under this Chapter shall be consistent with this Agreement and must not impede the achievement of its objectives.
3. Solutions reached in accordance with paragraph 2 shall be notified to the Joint Committee within 15 days from the agreement of the Parties.
Article 22.2. SCOPE
1. Except as otherwise provided in this Agreement, this Chapter shall apply with respect to the avoidance or settlement of all disputes between the Parties regarding the interpretation or application of this Agreement or wherever a Party considers that:
(a) a measure of the other Party is inconsistent with its obligations under this Agreement;
(b) the other Party has otherwise failed to carry out its obligations under this Agreement; or
(c) a benefit the Party could reasonably have expected to accrue to it under Chapter 2 (National Treatment and Market Access for Goods), 3 (Rules of Origin and Origin Procedures), 6 (Technical Barriers to Trade), 8 (Government Procurement) or 10 (Cross-border Trade in Services) is being nullified or impaired as a result of a measure that is not inconsistent with this Agreement.
2. A Party may not invoke paragraph 1(c) with respect to any measure subject to an exception under Article 23.1 (General Exceptions).
Article 22.3. CHOICE OF FORUM
1. Where a dispute regarding any matter arises under this Agreement and under the WTO Agreement or any other trade agreement to which the Parties to the dispute are party, the complaining Party may select the forum in which to settle the dispute.
2. Once the complaining Party has requested the establishment of a dispute settlement panel under an agreement referred to in paragraph 1, the forum selected shall be used to the exclusion of other fora.
Article 22.4. CONSULTATIONS
1. Any one or more of the Republics of Central America may request consultations with Korea and vice-versa with respect to any matter described in Article 22.2 by delivering written notification through the designated office, with copies to the other Parties. The requesting Party or Parties shall set out the reasons for the request, including identification of the measure or other matter at issue and an indication of the legal basis for the complaint. The other Party shall reply in writing within 10 days of the date of receipt of the request.
2. Consultations may be conducted in person or by technological means and shall be held within 30 days of the date of the receipt of the request and take place, unless the Parties agree otherwise, in the territory of the Party to whom the consultations were requested. The consultations shall be deemed concluded within 60 days of the date of the receipt of the request, unless the Parties agree to continue consultations. All information disclosed during the consultations shall remain confidential and without prejudice to the rights of any Party in any further proceedings.
3. Consultations on matters of urgency, including those regarding perishable or seasonal goods (1) or goods or services that rapidly lose their trade value such as certain seasonal goods or services, shall be held within 15 days of the date of the receipt of the request, and shall be deemed concluded within 20 days of the date of the receipt of the request.
4. If consultations are not held within the time frames laid down in paragraph 2 or 3 respectively, or if consultations have been concluded and no agreed solution has been reached, the requesting Party may request the intervention of the Joint Committee in accordance with Article 22.5.
5. The consulting Parties shall make every attempt to arrive at a satisfactory solution of any matter through consultations under this Article. Each Party shall:
(a) provide sufficient information in the consultations to enable a full examination of how the matter subject to consultations might affect the operation of this Agreement; and
(b) treat any confidential information exchanged in the course of consultations on the same basis as the Party providing the information.
6. In consultations under this Article, a Party may request that the other Party make available personnel of its government agencies or other regulatory bodies who have expertise in the matter at issue.
7. Consultations shall be confidential and without prejudice to the rights of any Party in any other proceedings.
Article 22.5. REFERRAL TO THE JOINT COMMITTEE (2)
1. If the Parties fail to resolve a matter within 60 days of the receipt of a request for consultations under Article 22.4 or 20 days where the matter concerns cases of urgency, including those concerning perishable or seasonal goods or goods or services that rapidly lose their trade value such as certain seasonal goods or services, only the consulting Party may request the intervention of the Joint Committee by delivering written notice to the other Party or Parties.
2. The requesting Party shall deliver the request to the other Party or Parties, and shall set out in the request, the reasons thereof including identification of the measure at issue and an indication of the legal and factual basis for the complaint.
3. Unless it decides otherwise, the Joint Committee shall convene within 10 days of delivery of the request and shall endeavor to resolve the dispute promptly, with the objective to arrive at a satisfactory resolution.
4. The Joint Committee may meet in person or through any other technological means available to the Parties.
5. The Joint Committee may consolidate two or more proceedings regarding the same measure or matter pursuant to this Article when it determines that it is appropriate to be considered jointly.
Article 22.6. GOOD OFFICES, CONCILIATION, OR MEDIATION
1. Parties may at any time agree to voluntarily undertake an alternative method of dispute resolution such as good offices, conciliation, and mediation.
2. Proceedings that involve good offices, conciliation, and mediation, shall be confidential and without prejudice to the rights of either Party in any other proceedings.
3. Parties participating in proceedings under this Article may terminate those proceedings at any time.
4. Once procedures for good offices, conciliation, or mediation are concluded without an agreement between the Parties, the complaining Party may request the establishment of a panel.
Article 22.7. ESTABLISHMENT OF PANEL
1. The Party may deliver a written request to establish a dispute settlement panel to the other Party, provided that a matter has not been resolved in any of the following cases:
(a) when the Parties to the dispute have not settled the dispute during consultations within the 60 day period established in Article 22.4 or 20 days where the matter concerns cases of urgency, including those concerning perishable goods, or goods or services that rapidly lose their trade value such as certain seasonal goods or services, or within any other period that the Parties to the dispute may agree during consultations;
(b) 30 days after the Joint Committee has convened in respect of the matter most recently referred to it, where proceedings have been consolidated pursuant to Article 22.5;
(c) within 30 days after the receipt of the request to refer the matter to the Joint Committee or any other period agreed by the Parties to the dispute, or when the meeting has not been held pursuant to the provisions established in Article 22.5.3; or
(d) when the requesting Party that referred the matter to the Joint Committee considers, once the period indicated by the Joint Committee has expired, that the measures aimed at complying with the agreement reached pursuant to Article 22.5, were not adopted.
2. The requesting Party shall set out the reasons for the request, including identification of the measure or other matter at issue and a brief summary of the legal basis for the complaint sufficient to present the problem clearly.
3. A panel shall be established upon the date of receipt of the request referred to in paragraph 1.
4. A Party that is eligible under paragraph 1 to request the establishment of a panel may join the arbitral panel proceedings as a complaining Party on delivery of written notice to the other Parties. The notice shall be delivered at the earliest possible time, and in any event no later than seven days after the date of delivery of the request by the Party for the establishment of a panel.
5. If a Party does not join as a complaining Party in accordance with paragraph 4, it shall refrain thereafter from initiating or continuing subparagraph (a) and (b) regarding the same matter in the absence of a significant change in economic or commercial circumstances:
(a) a dispute settlement procedure under this Agreement; or
(b) a dispute settlement proceeding under the WTO Agreement or under another free trade agreement to which it and the Party complained against are party, on grounds that are substantially equivalent to those available to it under this Agreement.
6. Unless otherwise agreed by the Parties to the dispute, the panel shall be established and perform its functions in a manner consistent with the provisions of this Chapter.
7. A panel may not be established to review a proposed measure.
8. Unless the Parties to the dispute otherwise agree, the Parties to the dispute shall apply the following procedures in selecting a panel:
(a) the panel shall be composed of three members;
(b) each Party shall appoint one panelist within 30 days after the date of receipt of the request for the establishment of a panel. If a Party fails to appoint a panelist within that period, the Parties shall meet within seven days and select a panelist by lot from among the members of the contingent list established under paragraph 10 who are nationals of that Party;
(c) a Party may exercise a peremptory challenge against any individual not on the contingent list within 14 days after the individual has been proposed as a panelist. If a Party has exercised three peremptory challenges, the other Party shall select a panelist from the contingent list;
(d) the Parties shall endeavor to agree on a third panelist who shall serve as chair;
(e) if the Parties are unable to agree on the chair within 30 days after the date on which the second panelist has been appointed, the Parties shall meet within seven days and select the chair by lot from among the members of the contingent list established under paragraph 10 who are not nationals of either Party; and (3)
(f) a panelist shall be considered appointed to a panel when that person is proposed pursuant to subparagraph (b) and no peremptory challenge is exercised pursuant to subparagraph (c), or when that person is selected from the contingent list pursuant to this paragraph.
9. In cases where two or more Parties acting together as complaining Party or Party complained against, and there is no agreement as to the appointment of a panelist, one of them, chosen by lot, shall represent the other with respect to the procedure set out in paragraph 8(b).
10. Within 180 days of the date of entry into force of this Agreement, the Parties shall establish a contingent list of individuals who are willing and able to serve as panelists. Unless the Parties otherwise agree, the contingent list shall include three nationals of each Party and at least eight individuals who are not nationals of any of the Parties. An individual on the contingent list shall be appointed by agreement of the Parties for a minimum term of three years and shall remain on the list until the individual is replaced or is unable to serve. The Parties shall review the contingent list every three years and may replace individuals on the list as appropriate. The Parties may also appoint a replacement where a member of the contingent list is no longer available to serve.
11. If a panelist appointed under this Article becomes unable to serve on the panel, a successor shall be appointed in the same manner as prescribed for the appointment of the original panelist and the successor shall have all the powers and duties of the original panelist. In such a case, any time period applicable to the panel proceedings shall be suspended for a period beginning on the date when the original panelist becomes unable to serve and ending on the date when the new panelist is appointed.
12. Individuals appointed to a panel pursuant to paragraph 8 or to the contingent list pursuant to paragraph 10 shall:
(a) be chosen strictly on the basis of objectivity, reliability and sound judgment;