(b) the availability of technical interfaces necessary for interconnection.
Competitive Safeguards
2. Each Party shall maintain appropriate measures to prevent suppliers that, individually or jointly, are dominant or important suppliers in its territory, from employing or continuing to employ anti-competitive practices.
3. The anticompetitive practices referred to in paragraph 1 include:
(a) engage in anticompetitive cross-subsidization activities;
(b) using information obtained from competitors with anticompetitive results; and
(c) failure to make available to other service providers, in a timely manner, technical information on essential facilities and commercially relevant information needed by them to provide services.
Interconnection
4. Subject to a Party's reservations in Annexes I and II, each Party shall ensure that a dominant or major supplier provides interconnection:
(a) at any technically feasible point in the network;
(b) on terms, conditions (including technical standards and specifications) and rates that do not discriminate against other suppliers;
(c) of a quality no less favorable than that supplied to its own similar services, to similar services of unaffiliated service providers or their subsidiaries or other affiliates;
(d) in a timely manner, on terms, conditions (including technical standards and specifications) and cost-oriented rates that:
(i) transparent and reasonable, taking into account economic feasibility; and
(ii) are sufficiently unbundled so that the provider need not pay for network components or facilities that are not required for the services to be provided; and
(e) upon request, at points in addition to the network termination points offered to most users, subject to charges reflecting the cost of constructing the necessary additional facilities.
Article 16.5. Universal Service
1. Each Party has the right to define the kind of universal service obligations it wishes to adopt or maintain.
2. Each Party shall administer any universal service obligation adopted or maintained in a transparent, non-discriminatory, competitively neutral manner and shall ensure that the universal service obligation is no more burdensome than necessary for the type of universal service defined by the Party.
Article 16.6. Allocation and Use of Scarce Resources
1. Each Party shall administer its procedures for the allocation and use of scarce telecommunications resources, including frequencies, numbers and rights of way, in an objective, timely, transparent and non-discriminatory manner.
2. A Party's measures relating to spectrum allocation and assignment and frequency management shall not be considered measures inconsistent with Article 13.5 (Market Access), which applies to cross-border trade in services, and Chapter 12 (Investment) through Article 13.1.4 (Scope of Application).
Accordingly, each Party retains the right to maintain, establish and implement spectrum and frequency management policies that may limit the number of suppliers of public telecommunications services, provided that this is done in a manner consistent with other provisions of this Agreement. In addition, each Party retains the right to allocate frequency bands taking into account present and future needs.
Article 16.7. Regulatory Body
1. Each Party shall ensure that its regulatory body is separate from and not accountable to any supplier of public telecommunications networks or services.
2. Each Party shall ensure that the decisions and procedures of its regulatory body are impartial with respect to all market participants.
Article 16.8. Compliance
Each Party shall maintain appropriate procedures and authority to enforce its domestic measures relating to the obligations set forth in Articles 16.2 and 16.4. Such procedures shall include the ability to impose appropriate sanctions, which may include, in accordance with each Party's legislation, fines, corrective orders, injunctions, or the modification, suspension or revocation of licenses or other authorizations.
Article 16.9. Settlement of Domestic Telecommunication (3)
Disputes Recourse to Regulatory Bodies
1. In addition to Article 19.4 (Administrative Procedures) and Article 19.5 (Review and Challenge), each Party shall ensure that:
(a) a supplier of public telecommunications networks or services of the other Party may have timely recourse to its regulatory body or other relevant body of the Party to resolve disputes concerning measures of the Party that relate to matters covered in Articles 16.2 and 16.4, and that, in accordance with the Party's domestic law, are within the competence of such bodies; and
(b) suppliers of public telecommunications networks or services of the other Party requesting interconnection with a dominant or major supplier in the territory of the Party have recourse, within a reasonable and public period of time after the supplier requests interconnection, to the Party's regulatory body for resolution of interconnection disputes regarding the terms, conditions, and rates for interconnection with such dominant or major supplier.
Reconsideration (4)
2. Each Party shall ensure that any supplier of public telecommunications networks or services adversely affected, or whose interests are adversely affected, by a determination or decision of its regulatory body may request reconsideration of the determination or decision by that body (5) .
Judicial Review
3. Any supplier of public telecommunications networks or services that is adversely affected or whose interests have been adversely affected by a determination or decision of the Party's telecommunications regulatory body may obtain judicial review of such determination or decision by an independent judicial authority in accordance with the domestic law of each Party. A request for judicial review shall not constitute a basis for non-compliance with such ruling or decision unless stayed by the competent judicial body.
Article 16.10. Transparency
In addition to Articles 19.2 (Publication) and 19.3 (Provision of Information), and the other provisions in this Chapter relating to the publication of information, each Party shall ensure that:
(a) the current status of allocated frequency bands shall be made available to the public, but detailed identification of frequencies allocated for specific government use shall not be required;
(b) the regulatory body's regulations, including the basis for such regulations, are promptly published or made available to the public;
(c) interested persons are provided, to the extent practicable, with adequate advance public notice, the opportunity to comment on any proposed regulation by the telecommunications regulatory body; and
(d) measures relating to public telecommunications networks or services are made available to the public, including measures relating to:
(i) rates and other terms and conditions of service;
(ii) technical interface specifications;
(iii) conditions for connecting terminals or other equipment to the public telecommunications network; and
(iv) notification, permit, registration or licensing requirements, if applicable; and
(e) information on the bodies responsible for the development, modification and adoption of measures related to standards affecting access and use is publicly available.
Article 16.11. Abstention
The Parties recognize the importance of relying on market forces to achieve a wide range of alternatives in the supply of telecommunications services. To this end, each Party may refrain from applying a regulation to a telecommunications service where:
(a) compliance with such regulation is not necessary to prevent unjustified or discriminatory practices;
(b) compliance with such regulation is not necessary for the protection of consumers; or
(c) is compatible with the public interest, including the promotion and strengthening of competition among suppliers of public telecommunications networks or services.
Article 16.12. Relation to other Chapters
In the event of any inconsistency between this Chapter and another Chapter in this Agreement, this Chapter shall prevail to the extent of the inconsistency.
Article 16.13. International Standards and Organizations
The Parties recognize the importance of international standards for the global compatibility and interoperability of telecommunications networks or services, and undertake to promote these standards through the work of relevant international bodies, including the International Telecommunication Union and the International Organization for Standardization.
Article 16.14. Definitions
For the purposes of this Chapter:
leased circuits means telecommunications facilities between two (2) or more designated points that are intended for the dedicated use or availability of a particular customer or for other users chosen by that customer;
intra-company communications means telecommunications by which a company communicates internally with or between its subsidiaries, branches and, subject to a Party's domestic laws and regulations, its affiliates, but does not include commercial or non-commercial services provided to companies that are not related subsidiaries, branches or affiliates or that are offered to customers or potential customers; for such purposes, the terms "subsidiaries, branches" and, where appropriate, "affiliates" shall be interpreted in accordance with each Party's definition in its domestic law;
company means a "company" as defined in Article 1.5 (Definitions of General Application) and includes a branch of a company;
essential facilities means facilities of a public telecommunications network or service which:
(a) are supplied exclusively or predominantly by a single supplier or a limited number of suppliers; and
(b) it is not economically or technically feasible to substitute them in order to provide a service;
interconnection means the link between providers of public telecommunications services for the purpose of enabling the users of one provider to communicate with the users of another provider and to access the services provided by another provider;
non-discriminatory means treatment no less favorable than that accorded to any other user of similar public telecommunications networks or services, in like circumstances;
regulatory agency means the national agency responsible for telecommunications regulation;
cost-oriented means cost-based, which includes reasonable profitability, and may involve different costing methodologies for different facilities or services;
dominant or major supplier (6), (7) means a supplier of public telecommunications services, which has the ability to significantly affect the conditions of participation from the point of view of price and supply in the relevant market for public telecommunications networks or services, as a result of:
(a) control of essential facilities; or
(b) the use of its position in the market;
network termination point means the final demarcation of the public telecommunications network at the user's premises;
public telecommunications network means the public telecommunications infrastructure (8) that allows telecommunications between two (2) or more defined points of a network;
public telecommunications service means any telecommunications service that a Party requires, either explicitly or in fact, to be offered to the general public and that generally involves real-time transmission. Such services may include, inter alia, telephony and data transmission typically involving user-provided information between two (2) or more points without any end-to-end change in the form or content of the user's information;
telecommunications means the transmission and reception of signals by an electromagnetic medium;
user means an end user or a provider of public telecommunications services; and
end user means an end consumer or a subscriber of a public telecommunications service, including a service provider that is not a provider of public telecommunications services.
Chapter 17. Temporary Entry of Business Persons
Article 17.1. General Principles
1. In addition to the provisions of Article 1.2 (Objectives), this Chapter reflects the preferential trading relationship that exists between the Parties, the mutual objective of facilitating the temporary entry of business persons in accordance with their national legislation, and the provisions of Annexes 17.3 (1) (Categories of Business Persons) and 17.3 (2) (Permanency Periods), based on the principle of reciprocity and the need to establish transparent criteria and procedures for the temporary entry of business persons. It also reflects the need to ensure border security and protect the national 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 labor market of the other Party (1) , nor to measures relating to citizenship, nationality, permanent residence, or employment on a permanent basis.
Article 17.2. General Obligations
1. Each Party shall apply its measures relating to the provisions of this Chapter in accordance with Article 17.1, and in particular shall apply them expeditiously to avoid undue delay or impairment in trade in goods or services or in the conduct of investment activities in accordance with this Agreement.
2. For greater certainty, nothing in this Chapter shall be construed to prevent a Party from applying measures to regulate the entry of natural 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 natural persons across its borders, provided that such measures are not applied in a manner that unduly delays or impairs trade in goods or services or the conduct of investment activities in accordance with this Agreement. The mere fact of requiring a visa for natural persons shall not be deemed to unduly impair or impede trade in goods or services or investment activities pursuant to this Agreement.
Article 17.3. Temporary Entry Authorization
1. Each Party shall authorize temporary entry for business persons who comply with the immigration measures applicable to temporary entry and other measures related to public health and safety and national security, in accordance with the provisions of this Chapter, including the provisions contained in Annex 17.3 (1) (Categories of Business Persons) and in Annex 17.3 (2) (Permanency Periods).
2. Each Party shall establish the amount of fees for processing applications for temporary entry of business persons in a manner that does not unduly delay or impair trade in goods or services or the conduct of investment activities in accordance with this Agreement and does not exceed the approximate administrative costs.
3. The authorization of temporary entry under this Chapter does not replace the requirements for the exercise of a profession or activity in accordance with the specific regulations in force in the territory of the Party authorizing the temporary entry.
Article 17.4. Exchange of Information
1. In addition to Article 19.2 (Publication), and recognizing the importance to the Parties of transparency of information on the temporary entry of business persons, each Party shall:
(a) provide the other Party with relevant materials to enable it to become acquainted with its measures relating to this Chapter; and
(b) no later than six (6) months after the date of entry into force of this Agreement, prepare, publish and make available materials explaining the requirements for the temporary entry of business persons, including references to applicable national legislation, in accordance with this Chapter, so that business persons of the other Party may be aware of them.
2. Each Party shall collect, maintain and make available to the other Party, upon request and in accordance with its respective national legislation, information regarding the granting of temporary entry authorizations for business persons, in accordance with this Chapter, to business persons of the other Party to whom immigration documentation has been issued, to include specific information regarding each category authorized in Annex 17.3 (1) (Categories of Business Persons).
Article 17.5. Committee on Temporary Entry of Business Persons
1. The Parties establish a Committee on Temporary Entry of Business Persons (hereinafter the Committee), composed of representatives of each Party (2).
2. The functions of the Committee shall include, among other matters of mutual interest:
(a) review the implementation and administration of this Chapter;
(c) report to the Commission on the implementation and administration of this Chapter, as appropriate;
(d) establish procedures for the exchange of information on measures affecting the temporary entry of business persons pursuant to this Chapter;
(e) consider developing measures to further facilitate the temporary entry of business people;
(f) the observance of the matters established in accordance with Article 17.6 ; and
(g) to deal with any other matter related to this Chapter.
3. Unless otherwise agreed by the Parties, the Committee shall meet at least once (1) every three (3) years, on the date and according to the agenda previously agreed upon by the Parties. The Parties shall determine those cases in which extraordinary meetings may be held.
4. The meetings may be held by any means agreed upon by the Parties. When they are face-to-face, they shall be held alternately in the territory of each Party, and it shall be the responsibility of the host Party to organize the meeting.
5. Unless otherwise agreed by the Parties, the Committee shall be of a permanent nature and shall develop its working rules.
6. All decisions of the Committee shall be made by mutual agreement.
Article 17.6. Cooperation
Taking into consideration the principles set forth in Article 17.1, the Parties shall endeavor to the extent possible:
(a) cooperate to strengthen institutional capacity and promote technical assistance among migration authorities;
(b) exchange information and experiences on regulations and implementation of programs and technology in the framework of immigration matters, including those related to the use of biometric technology, advance passenger information systems, frequent flyer programs and travel document security; and
(c) strive to actively coordinate in multilateral fora to promote the facilitation of temporary entry of business people.
Article 17.7. Settlement of Disputes
1. A Party may not initiate proceedings under Chapter 18 (Dispute Settlement) of this Agreement with respect to a denial of temporary entry authorization under this Chapter unless:
(a) the matter concerns a recurring practice; and
(b) the business person concerned has exhausted, in accordance with applicable national law, the administrative remedies available to it in respect of that particular matter.
2. The remedies referred to in subparagraph 1(b) shall be deemed exhausted when the competent authority has not issued a final resolution within one (1) year from the initiation of an administrative proceeding, and the resolution has been delayed for causes that are not attributable to the business person concerned.
Article 17.8. Relationship with other Chapters
1. Nothing in this Agreement shall be construed to impose any obligation on the Parties with respect to their migration measures; however, the provisions of this Chapter and the relevant provisions of Chapter 1 (Initial Provisions and General Definitions), Chapter 18 (Dispute Settlement), Chapter 19 (Transparency), Chapter 20 (Administration of the Agreement), Chapter 21 (Exceptions) and Chapter 22 (Final Provisions) shall apply.
2. Nothing in this Chapter shall be construed as imposing any obligations or commitments with respect to other Chapters of this Agreement.
Article 17.9. Transparency In the Processing of Applications
1. In addition to Chapter 19 (Transparency), each Party shall establish or maintain appropriate mechanisms to respond to inquiries from interested persons on applications and procedures relating to the temporary entry of business persons.
2. Each Party shall endeavor, within a reasonable time in accordance with its national law, after considering that the application for temporary entry is complete under its national law, to inform the applicant of the decision taken on his application. At the request of the applicant, the Party shall endeavor to provide, without undue delay, information concerning the status of his application.
Article 17.10. Definitions
For the purposes of this Chapter:
business activities means those legitimate activities of a commercial nature created and operated for the purpose of making a profit in the marketplace. No
includes the possibility of obtaining employment, salary or remuneration from a labor source in the territory of a Party;
executive means a business person in an organization who primarily directs the management of the organization, exercises broad decision-making, and receives only general supervision or direction from senior executives, the board of directors and/or shareholders of the business;
temporary entry means entry into the territory of a Party by a business person of the other Party, without the intention of establishing permanent residence;
specialist means an employee who possesses specialized knowledge of the company's products or services, technical expertise or an advanced level of experience or knowledge of the company's processes and procedures;
manager means a business person in an organization who primarily directs the organization or a department or subdivision of the organization, supervises and controls the work of other supervisory, professional or managerial employees, has the authority to hire and fire, or take other personnel actions (such as authorizing promotions or leaves), and exercises discretionary authority in day- to-day operations;
national means "national" as defined in Article 1.5 (Definitions of General Application), but does not include permanent residents; and
business person means a national of a Party engaged in trade in goods or the supply of services, or in investment activities.
Annex 17.3(1). Categories of Business Persons
Section A. Business Visitors
1. Each Party shall authorize temporary entry to a business person who intends to carry out any of the business activities referred to in Appendix 1 of this Section, without requiring him to obtain a work permit or employment authorization, provided that such person, in addition to complying with existing immigration measures applicable to temporary entry, exhibits:
(a) evidence attesting to the nationality of a Party;
(b) documentation evidencing that the business person will engage in any business activity set forth in Appendix 1 to this Section and stating the purpose of entry; and
(c) proof of the international character of the business activity proposed to be undertaken and that the business person does not intend to enter the local labor market.
2. Each Party shall provide that a business person meets the requirements of subparagraph 1(c) when it demonstrates that:
(a) the principal source of remuneration for the proposed business activity is outside the territory of the Party authorizing temporary entry; and
(b) the principal place of business of that person and where the profits are actually earned is predominantly outside the territory of the Party granting temporary entry.