3. Each Party shall accredit, license or otherwise recognize conformity assessment bodies in the territory of the other Party on terms no less favorable than those accorded to conformity assessment bodies in its territory. If a Party accredits, authorizes or otherwise recognizes a body assessing conformity to a specific standard or technical regulation in its territory and refuses to accredit, authorize or otherwise recognize a body assessing conformity to that same standard or technical regulation in the territory of the other Party, it shall, on request of that other Party, explain the reasons for its decision.
4. The Parties may enter into negotiations aimed at the conclusion of agreements on mutual recognition of the results of their respective conformity assessment procedures, following the principles of the WTO TBT Agreement. In the event that a Party does not agree to enter into such negotiations, it shall, at the request of that other Party, explain the reasons for its decision.
Article 7.8. Transparency
1. Each Party shall notify the other Party electronically through the contact points established under Article 10 of the WTO TBT Agreement, at the same time as it submits its notification to the WTO central notification registry in accordance with the WTO TBT Agreement:
(a) its draft technical regulations and conformity assessment procedures; and
(b) technical regulations and conformity assessment procedures adopted to address urgent safety, health, environmental protection or national security problems that arise or threaten to arise under the terms of the WTO TBT Agreement.
2. Each Party shall publish on the website of the competent national authority those technical regulations and conformity assessment procedures that are consistent with the technical content of any relevant international standard. This publication shall remain publicly available as long as such technical regulations and conformity assessment procedures are in force.
3. Each Party shall allow a period of at least sixty (60) days from the date of the notification referred to in subparagraph 1(a) for the other Party and interested persons to provide written comments on the proposal. A Party shall give favorable consideration to reasonable requests for an extension of the time period for comment.
4. Each Party shall publish or make publicly available, either in printed or electronic form, its responses to significant comments it receives from interested persons or from the other Party in accordance with paragraph 3 no later than the date on which it publishes the final version of the technical regulation or conformity assessment procedure.
5. The notification of draft technical regulations and conformity assessment procedures shall include an electronic link to, or a copy of, the full text of the notified document.
6. A Party shall, upon request of the other Party, provide information on the objective and basis of the technical regulation or conformity assessment procedure that such Party has adopted or proposes to adopt.
7. The Parties agree that the period between publication and entry into force of technical regulations and conformity assessment procedures shall not be less than six (6) months, unless it is impracticable to meet their legitimate objectives within that period. The Parties shall give favorable consideration to reasonable requests for extension of the time period.
8. The Parties shall ensure that all technical regulations and procedures of the Parties are the conformity assessment systems adopted and in force are publicly available on a free official website, in such a way that they are easy to locate and access.
9. Each Party shall implement the provisions of paragraph 4 as soon as possible and in no case later than three (3) years after the entry into force of this Agreement.
Article 7.9. Technical Cooperation
1. At the request of a Party, the other Party shall give favorable consideration to any sector-specific proposal that the requesting Party makes to encourage further cooperation under this Chapter.
2. The Parties agree to cooperate and provide technical assistance in the field of standards, technical regulations and conformity assessment procedures, including metrology, with a view to facilitating access to their markets. In particular, the Parties shall consider the following activities, among others:
(a) to promote the application of this Chapter;
(b) to promote the implementation of the WTO TBT Agreement;
(c) strengthen the capacities of their respective standardization, technical regulation, conformity assessment, metrology, and information and notification systems under the WTO TBT Agreement, including human resources education and training; and
(d) increase participation in international organizations, including those of a regional nature, related to standardization, technical regulation, conformity assessment and metrology.
Article 7.10. Committee on Technical Barriers to Trade
1. The Parties establish a Committee on Technical Barriers to Trade (hereinafter the Committee), composed of representatives of each Party in accordance with Annex 7.10 (Committee on Technical Barriers to Trade).
2. The functions of the Committee shall include:
(a) monitor the implementation and administration of this Chapter;
(b) report to the Commission on the implementation and administration of this Chapter, as appropriate;
(c) promptly deal with matters that a Party proposes with respect to the development, adoption, application or implementation of standards, technical regulations, or conformity assessment procedures;
(d) encourage joint cooperation of the Parties in the development and improvement of standards, technical regulations and conformity assessment procedures, including metrology;
(e) as appropriate, facilitate sectoral cooperation between governmental and non-governmental bodies on standards, technical regulations and conformity assessment procedures, including metrology, in the territories of the Parties;
(f) exchange information about the work being carried out in non governmental, regional and multilateral fora involved in activities related to standards, technical regulations and conformity assessment procedures;
(g) at the request of a Party, resolve consultations on any matter arising under this Chapter;
(h) review this Chapter in light of any developments under the WTO 7BT Agreement, and decisions or recommendations of the WTO TBT Committee, and make suggestions on possible amendments to this Chapter;
(i) take any other action that the Parties consider will assist them in the implementation of this Chapter and the WTO 7BT Agreement and in the facilitation of trade between the Parties;
(j) to recommend to the Commission the establishment of working groups to deal with specific matters related to this Chapter and the WTO TBT Agreement; and
(k) to deal with any other matter related to this Chapter.
3. The Parties shall make every effort to reach a mutually satisfactory solution to the consultations referred to in subparagraph 2 (g) within a period of thirty (30) days.
4. Where the Parties have resorted to consultations pursuant to subparagraph 2(g), such consultations shall replace those provided for in Article 18.4 (Consultations).
5. The representatives of each Party in accordance with Annex 7.10 (Committee on Technical Barriers to Trade) shall be responsible for coordinating with the relevant bodies and persons in its territory, as well as for ensuring that such bodies and persons are convened.
6. Unless otherwise agreed by the Parties, the Committee shall meet at least once a year. (1) once a year, on the date and according to the agenda previously agreed by the Parties. The Parties shall determine those cases in which extraordinary meetings may be held.
7. 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. The first meeting of the Committee shall be held no later than one (1) year after the date of entry into force of this Agreement.
8. Unless otherwise agreed by the Parties, the Committee shall be of a permanent nature and shall develop its working rules.
9. All decisions of the Committee shall be made by mutual agreement.
Article 7.11. Exchange of Information
1. Any information or explanation provided at the request of a Party pursuant to the provisions of this Chapter shall be provided in printed or electronic form within thirty (30) days, which may be extended upon justification by the reporting Party.
2. Regarding the exchange of information, in accordance with Article 10 of the WTO TBT Agreement, the Parties should apply the recommendations indicated in the document Decisions and Recommendations adopted by the WTO TBT Committee since January 1, 1995, G/TBT/1/Rev.9, September 8, 2008, Section V (Information Exchange Procedure) issued by the WTO TBT Committee.
Article 7.12. Definitions
For the purposes of this Chapter, the terms and definitions in Annex 1 of the WTO TBT Agreement shall apply.
Chapter 8. Trade Defense
Section A. Bilateral Safeguard Measures
Article 8.1. Imposition of a Bilateral Safeguard Measure
1. During the transition period, if as a result of the reduction or elimination of a customs duty under this Agreement, a good originating in one Party is being imported into the territory of the other 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 threat thereof to the domestic industry producing a like or directly competitive good, the importing Party may adopt a bilateral safeguard measure described in paragraph 2.
2. If the conditions set out in paragraph 1 are met, a Party may, to the extent necessary to prevent or remedy serious injury or threat thereof and to facilitate readjustment:
(a) suspend the future reduction of any tariff rate provided for in this Agreement for the good; or
(b) increase the rate of duty for the good to a level not to exceed the lesser of:
(i) the most favored nation (MFN) tariff rate applied at the time the measure is applied; or
(ii) the base tariff rate as set forth in Annex 2.3 (Tariff Elimination Program) (1).
3. The adoption of a bilateral safeguard measure provided for in this Section shall not affect goods which on the date of entry into force of the measure are in existence:
(a) (i) the goods actually shipped as evidenced by the transport documents, provided that they are intended for final consumption or final importation within a period not exceeding twenty (20) days from the completion of unloading in the territory of the importing Party; or
(b) in the territory of the importing Party pending clearance, provided that the clearance is carried out within a period not exceeding twenty (20) days, counted from the adoption of the measure. Excluded from this provision are goods that, being in free zones, are to be entered into the territory of the importing Party.
Article 8.2. Standards for a Bilateral Safeguard Measure
1. No Party may maintain a bilateral safeguard measure:
(a) except to the extent and for the period necessary to prevent or remedy the serious damage and to facilitate readjustment;
(b) for a period exceeding two (2) years; except that this period may be extended for an additional one (1) year, if the competent authority determines, in accordance with the procedures set forth in Article 8.3, that the measure continues to be necessary to prevent or remedy serious injury and to facilitate adjustment and that there is evidence that the domestic industry is in the process of adjustment; or
(c) after the expiration of the transition period.
2. In order to facilitate readjustment in a situation where the expected duration of a bilateral safeguard measure exceeds one (1) year, the Party applying the measure shall progressively liberalize it at regular intervals during the period of application.
3. A Party may not apply a bilateral safeguard measure more than once against the same good until a period equal to the duration of the previous bilateral safeguard measure, including any extensions, has elapsed, starting from the termination of the previous bilateral safeguard measure, provided that the period of non-application is at least one (1) year.
4. Upon termination of the bilateral safeguard measure, the Party that has adopted the measure shall apply the tariff rate in accordance with its Schedule of Schedule 2.3 (Tariff Elimination Program).
Article 8.3. Investigation Procedures and Transparency Requirements
1. A Party may apply a bilateral safeguard measure only after an investigation by the Party's competent authority pursuant to Articles 3 and 4.2(c) of the WTO Agreement on Safeguards; and to this end, Articles 3 and 4.2(c) of the WTO Agreement on Safeguards are incorporated into and made an integral part of this Agreement, mutatis mutandis.
2. In the investigation described in paragraph 1, the Party shall comply with the requirements of Articles 4.2(a) and 4.2(b) of the WTO Agreement on Safeguards; and to this end, Articles 4.2(a) and 4.2(b) of the WTO Agreement on Safeguards are incorporated into and made an integral part of this Agreement, mutatis mutandis.
3. Each Party shall ensure that its competent authorities complete this type of investigation within the time limits established in its national legislation.
Article 8.4. Provisional Bilateral Safeguard Measures
1. In critical circumstances, where any delay would cause injury which would be difficult to repair, a Party may apply a provisional bilateral safeguard measure pursuant to a preliminary determination that there is clear evidence that increased imports from the other Party have caused or are threatening to cause serious injury to the domestic industry.
2. The duration of the provisional bilateral safeguard shall not exceed two hundred (200) days, shall take any of the forms provided for in Article 8.1.2 and shall comply with the relevant requirements of Articles 8.1 and 8.3. Guarantees or funds received for provisional measures shall be released or reimbursed promptly, when the investigation does not determine that increased imports have caused or threatened to cause serious injury to the domestic industry. The duration of any provisional bilateral safeguard measure shall be counted as part of the duration of a definitive bilateral safeguard measure.
Article 8.5. Notification and Consultation
1. A Party shall promptly notify the other Party in writing, when:
(a) initiate a bilateral safeguard procedure in accordance with this Section;
(b) apply a provisional bilateral safeguard measure; and
(c) adopt the final decision to apply or extend a bilateral safeguard measure.
2. A Party shall provide to the other Party a copy of the public version of the reportof its competent investigating authority required under Article 8.3.1.
3. Upon request of a Party whose good is subject to a bilateral safeguard proceeding under this Chapter, the Party conducting the proceeding shall initiate consultations with the requesting Party to review the notifications under paragraph 1 or any public notice or report issued by the competent investigating authority in connection with such proceeding.
Article 8.6. Compensation
1. No later than thirty (30) days after it applies a bilateral safeguard measure, a Party shall provide an opportunity for consultations with the other Party regarding appropriate trade liberalization compensation in the form of concessions having substantially equivalent effect on trade, or equivalent to the value of the additional duties expected as a result of the measure.
2. If the Parties are unable to agree on compensation within thirty (30) days after the initiation of consultations, the exporting Party may suspend the application of substantially equivalent concessions to the trade of the Party applying the bilateral safeguard measure.
3. The exporting Party shall notify the Party applying the bilateral safeguard measure in writing at least thirty (30) days before suspending concessions under paragraph 2.
4. The obligation to provide compensation under paragraph 1 and the right to suspend concessions under paragraph 2 shall terminate on the date of termination of the bilateral safeguard measure.
Article 8.7. Definitions
For the purposes of this Section:
threat of serious harm means the clear imminence of serious harm based on facts and not merely on allegation, conjecture or remote possibility;
competent investigating authority means:
(a) in the case of Panama, the General Directorate of Trade Defense of the National Directorate of Administration of International Trade Treaties and Trade Defense of the Office of International Trade Negotiations of the Ministry of Commerce and Industries; and
(b) In the case of Peru, the Vice-Ministry of Foreign Trade of the Ministry of Foreign Trade and Tourism,
or their successors;
substantial cause means a cause that is important and not less than any other cause;
serious injury means a significant overall impairment of the position of a domestic industry; and
transition period means the five (5) year period beginning on the date of entry into force of this Agreement, except for any good for which Annex 2.3 (Tariff Elimination Schedule) of the Party applying the safeguard measure provides that the Party eliminates its duties on t h e good over a period of five (5) years or more, where transition period means the period of tariff elimination for the good set out in Annex 2.3 (Tariff Elimination Schedule) plus an additional period of two (2) years.
Section B. Global Safeguarding Measures
Article 8.8. Global Safeguarding Measures
1. Each Party retains its rights and obligations under Article XIX of the GATT 1994 and the WTO Agreement on Safeguards.
2. This Agreement confers no additional rights or obligations on the Parties with respect to actions taken pursuant to Article XIX of the GATT 1994 and the WTO Agreement on Safeguards, except that the Party imposing a global safeguard measure may exclude imports of a good originating in the other Party, if such imports are not a substantial cause of serious injury or threat of serious injury.
3. No Party shall apply with respect to the same good and during the same period:
(a) a bilateral safeguard measure pursuant to Section A; and
(b) a measure under Article XIX of GATT 1994 and the WTO Agreement on Safeguards.
4. For the purposes of this Section, competent investigating authority means for:
(a) in the case of Panama, the General Directorate of Trade Defense of the National Directorate of Administration of International Trade Treaties and Trade Defense of the Office of International Trade Negotiations of the Ministry of Commerce and Industries; and
(b) in the case of Peru, the Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual (National Institute for the Defense of Competition and the Protection of Intellectual Property), or their successors.
5. Except as provided in paragraph 3, Chapter 18 (Dispute Settlement) shall not apply to this Section.
Section C. Antidumping and Countervailing Duties
Article 8.9. Antidumping and Countervailing Duties
1. Each Party retains its rights and obligations under Article VI of the GATT 1994, the WTO 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. Except as provided in paragraph 3, nothing in this Agreement shall be construed to impose any rights or obligations on the Parties with respect to anti-dumping and countervailing duties.
3. Without prejudice to Article 6.5 of the WTO Antidumping Agreement and Article 12.4 of the WTO Subsidies Agreement, and in accordance with Article 6.9 of the WTO Antidumping Agreement and Article 12.8 of the WTO Subsidies Agreement, the competent investigating authority shall make full and meaningful disclosure of all essential facts and considerations that form the basis for the decision on the application of definitive measures. In this regard, the competent investigating authority shall send to the interested parties a written report containing such information, and shall allow the interested parties sufficient time to submit their comments and rebuttals in writing and orally to this report.
4. For the purposes of this Section, a competent investigating authority shall mean means:
(a) in the case of Panama, the General Directorate of Trade Defense of the National Directorate of Administration of International Trade Treaties and Trade Defense of the Office of International Trade Negotiations of the Ministry of Commerce and Industries; and
(b) in the case of Peru, the Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual (National Institute for the Defense of Competition and the Protection of Intellectual Property), or their successors.
5. Chapter 18 (Dispute Resolution) shall not apply to this Section.
Section D. Cooperation
Article 8.10. Cooperation
The Parties agree to establish a mechanism for cooperation between their investigating authorities. Cooperation between the Parties may include, but is not limited to, the following activities:
(a) exchange of available non-confidential information on trade defense investigations they have conducted with respect to imports originating in or coming from third countries other than the Parties;
(b) technical assistance in trade defense; and
(c) exchange of information in order to improve understanding of this Chapter and the Parties' trade defense regimes.
Chapter 9. Intellectual Property
Article 9.1. Basic Principles
1. The Parties recognize that the protection and enforcement of intellectual property rights shall contribute to the generation of knowledge, the promotion of innovation, transfer and dissemination of technology and cultural progress, to the mutual benefit of producers and users of technological and cultural knowledge, favoring the development of social and economic welfare and the balance of rights and obligations.
2. The Parties recognize the need to maintain a balance between the rights of right holders and the interests of the general public, in particular, in education, research, public health and access to information within the framework of the exceptions and limitations established in the national legislation of each Party.
3. The Parties, in formulating or amending their laws and regulations, may adopt measures necessary to protect public health and nutrition of the population, or to promote the public interest in sectors of vital importance to their socioeconomic and technological development, provided that such measures are consistent with the provisions of this Chapter.
4. The Parties recognize that technology transfer contributes to the strengthening of national capacities to establish a solid and viable technological base.
5. The Parties, in interpreting and implementing the provisions of this Chapter, shall observe the principles set forth in the Declaration on the TRIPS Agreement and Public Health, adopted on November 14, 2001 at the Fourth WTO Ministerial Conference.
6. The Parties shall contribute to the implementation of and respect for the WTO General Council Decision of August 30, 2003 on paragraph 6 of the Declaration on the TRIPS Agreement and Public Health, and the Protocol amending the TRIPS Agreement, signed in Geneva on December 6, 2005. They also recognize the importance of promoting the gradual implementation of Resolution WHA61.21, Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property, adopted by the 61st World Health Assembly on May 24, 2008.
7. The Parties shall ensure that the interpretation and implementation of the rights and obligations assumed under this Chapter shall be consistent with paragraphs 1 through 6.
Article 9.2. General Provisions
1. Each Party shall apply the provisions of this Chapter and may, but shall not be obliged to, provide in its national legislation for more extensive protection than that required by this Chapter, provided that such protection does not contravene the provisions of this Chapter.
2. The Parties reaffirm their rights and obligations under the WTO TRIPS Agreement, the Convention on Biological Diversity, and any other multilateral intellectual property agreements or treaties administered by the World Intellectual Property Organization (hereinafter WIPO) to which the Parties are party. In this regard, nothing in this Chapter shall be to the detriment of the provisions of such multilateral treaties.
3. Each Party, in formulating or amending its laws and regulations, may make use of the exceptions and flexibilities allowed by multilateral treaties related to the protection of intellectual property to which the Parties are party.
4. A Party shall accord to nationals of the other Party treatment no less favorable than that it accords to its own nationals. Exceptions to this obligation shall be in accordance with the relevant provisions referred to in Articles 3 and 5 of the WTO TRIPS Agreement.
5. With respect to the protection and enforcement of intellectual property rights referred to in this Chapter, any advantage, favor, privilege or immunity granted by a Party to nationals of any other country shall be accorded immediately and unconditionally to nationals of the other Party. Exceptions to this obligation shall be in accordance with the relevant provisions referred to in Articles 4 and 5 of the WTO TRIPS Agreement.
6. Nothing in this Chapter shall prevent a Party from taking measures necessary to prevent the abuse of intellectual property rights by right holders, or the resort to practices that unreasonably restrain trade, or are detrimental to the international transfer of technology. Likewise, nothing in this Chapter shall be construed to diminish the protections that the Parties agree or have agreed to benefit the conservation and sustainable use of biodiversity, nor shall it prevent the Parties from adopting or maintaining measures to this end.
Article 9.3. Marks
1. The Parties shall protect trademarks in accordance with the WTO TRIPS Agreement.
2. Article 6 bis of the Paris Convention for the Protection of Industrial Property shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known mark, provided that the use of such mark in connection with those goods or services indicates a connection between those goods or services and the owner of the mark, and provided that the interests of the trademark owner could be injured by such use. For greater certainty, the Parties may also apply this protection to well-known unregistered trademarks, provided that the national legislation of each Party so permits.
3. In determining whether a trademark is well known (1), no Party shall require that the reputation of the trademark extend beyond the sector of the public that normally deals with the relevant goods or services. For greater certainty, the sector of the public that normally deals with the relevant goods or services is determined in accordance with the national legislation of each Party.
4. Each Party shall provide a system for the registration of trademarks, which shall provide for:
(a) written notification to the applicant indicating the reasons for the refusal to register the trademark. If the national legislation so permits, notifications may be made by electronic means;
(b) an opportunity for interested parties to oppose an application for trademark registration or to request the nullity of the trademark after it has been registered;
(c) that decisions in registration and nullity proceedings be reasoned and in writing; and
(d) the opportunity for interested parties to challenge administratively or judicially, as established by the national legislation of each Party, the decisions issued in trademark registration and nullity proceedings.
5. Each Party shall provide that applications for registration, publications of such applications and registrations shall indicate the goods and services by their names, grouped according to the classes of the classification established by the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (1979), as revised and amended (hereinafter referred to as the Nice Classification).
Goods or services may not be considered similar to each other solely on the ground that, in any registration or publication, they appear in the same class of the Nice Classification. Likewise, each Party shall provide that goods or services may not be considered as dissimilar to each other solely on the ground that, in any registration or publication, they appear in different classes of the Nice Classification.