The Commission shall be composed of:
(a) Colombia, the Minister of Commerce, Industry and Tourism; and
(b) Costa Rica, the Minister of Foreign Trade, or his successor.
Annex 20-B. IMPLEMENTATION OF THE AMENDMENTS APPROVED BY THE FREE TRADE COMMISSION
In the case of Costa Rica, the decisions of the Commission under Article 20.1.3(b) shall be equivalent to the instrument referred to in Article 121.4, third paragraph, (lower-ranking protocol), of the Constitución Política de la República de Costa Rica.
Annex 20-C. AGREEMENT COORDINATORS
The Agreement Coordinators shall be for:
(a) Colombia, the Director of the Directorate of Economic Integration of the.
(a) Colombia, the Director of the Directorate of Economic Integration of the Ministry of Commerce, Industry and Tourism or his designee; and
(b) Costa Rica, the Director General of Foreign Trade of the Ministry of Foreign Trade or his designee,
or his successors.
Chapter 21. EXCEPTIONS
Article 21.1. GENERAL EXCEPTIONS
1. For purposes of Chapter 2 (Market Access for Goods), Chapter 3 (Rules of Origin and Origin Procedures), Chapter 4 (Trade Facilitation and Customs Procedures), Chapter 5 (Technical Cooperation and Mutual Assistance in Customs Matters), Chapter 6 (Sanitary and Phytosanitary Measures), and Chapter 7 (Technical Barriers to Trade), Article XX of the GATT 1994 and its interpretative notes are incorporated into this Agreement and form an integral part thereof, mutatis mutandis. The Parties understand that the measures referred to in Article XX(b) of GATT 1994 include environmental measures necessary to protect human, animal or plant life or health, and that Article XX(g) of GATT 1994 applies to measures relating to the conservation of living or non-living exhaustible natural resources.
2. For the purposes of Chapter 12 (Investment), Chapter 13 (Cross-Border Trade in Services), Chapter 14 (Financial Services), Chapter 15 (Telecommunications), Chapter 16 (Electronic Commerce) and Chapter 17 (Temporary Entry of Business Persons), Article XIV of the GATS (including the footnotes) are incorporated into and form an integral part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XIV(b) of the GATS include environmental measures necessary to protect human, animal or plant life or health. The Parties understand that the measures referred to in Article XIV(a) of the GATS include measures necessary to maintain domestic law and order.
Article 21.1. ESSENTIAL SECURITY
Nothing in this Agreement shall be construed to:
(a) to compel a Party to provide or give access to information the disclosure of which it considers contrary to its essential security interests; or
(b) to prevent a Party from implementing measures it considers necessary to carry out its obligations with respect to the maintenance or restoration of international peace or security, or to protect its essential security interests.
Article 21.3. TAXATION
1. Except as provided in this Article, nothing in this Agreement shall apply to taxation measures.
2. Nothing in this Agreement shall affect the rights and obligations of the Parties under any tax convention. In the event of any inconsistency between this Agreement and any such treaty, the treaty shall prevail to the extent of the inconsistency. In the case of a tax treaty between the Parties, the competent authorities under that treaty shall have sole responsibility for determining whether there is any inconsistency between this Agreement and that treaty.
3. Notwithstanding paragraph 2:
(a) Article 2.2 (National Treatment) and such other provisions in this Agreement necessary to give effect to that Article shall apply to taxation measures to the same extent as Article III of the GATT 1994; and
(b) Article 2.11 (Taxes and Other Export Charges) shall apply to taxation measures.
4. Subject to paragraph 2:
(a) Articles 13.3 (National Treatment) and 14.2 (National Treatment) shall apply to taxation measures on income, capital gains, or on the taxable capital of enterprises relating to the acquisition or consumption of specified services, except that nothing in this paragraph shall prevent a Party from conditioning the receipt or continued receipt of an advantage related to the acquisition or consumption of specified services on the requirement to supply the service in its territory; and
(b) Articles 12.2 (National Treatment) and 12.3 (Most-Favored-Nation Treatment), 13.3 (National Treatment) and 13.4 (Most-Favored-Nation Treatment), and 14.2 (National Treatment) and 14.3 (Most-Favored-Nation Treatment). 3 (Most-Favored-Nation Treatment) shall apply to all tax measures except those on income, capital gains, or taxable business capital, estate, inheritance, gift, and generation-skipping transfers.
5. Nothing in paragraph 4 shall apply:
(a) to any MFN obligation with respect to the benefit conferred by a Party pursuant to any tax convention;
(b) to any non-conforming provision of any existing taxation measure;
(c) to the continuation or prompt renewal of a non-conforming provision of any existing taxation measure;
(d) to an amendment to a non-conforming provision of any existing taxation measure, to the extent that such amendment does not, at the time it is made, reduce its degree of conformity with any of the items referred to in paragraph (4);
(e) the adoption or application of any taxation measure aimed at ensuring the equitable or effective application or collection of taxes (as permitted under Article XIV(d) of the GATS); or
(f) to a provision conditioning the receipt, or continued receipt, of an advantage in respect of contributions to, or income from, pension trusts or pension plans on the requirement that the Party maintain continuing jurisdiction over the pension trust or pension plan.
6. Subject to paragraph 2 and without prejudice to the rights and obligations of the Parties under paragraph 3, paragraphs 3, 5, 6, 7, 8, 9 and 10 of Article 12.6 (Performance Requirements) shall apply to taxation measures.
(a) Article 12.11 (Expropriation and Compensation and 12.17 (Submission of a Claim to Arbitration) shall apply to a taxation measure that is claimed to be expropriatory. However, no investor may invoke Article 12.11 (Expropriation and Compensation) as a basis for a claim where it has been determined in accordance with this paragraph that the measure does not constitute an expropriation (1). An investor seeking to invoke Article 12.11 (Expropriation and Compensation) with respect to a taxation measure shall first submit the matter to the competent authorities of the respondent and claimant Party referred to in paragraph (b) at the time it delivers written notice of its intent to submit a claim to arbitration under Article 12.17 (Submission of a Claim to Arbitration), for such authorities to determine whether the tax measure constitutes an expropriation. If the competent authorities do not agree to examine the matter or, having agreed to examine the matter, do not agree that the measure does not constitute an expropriation, within six months after the matter has been submitted to them, the investor may submit its claim to arbitration in accordance with Article 12.17 (Submission of a Claim to Arbitration).
(b) For purposes of this paragraph, competent authorities means:
(i) in the case of Colombia, the Technical Vice-Ministry of the Ministry of Finance and Public Credit; and.
(ii) in the case of Costa Rica, the Ministry of Finance, or its successors.
8. For the purposes of this Article:
tax convention means a convention for the avoidance of double taxation or other international convention or arrangement on tax matters; and
taxes and taxation measures do not include:
(a) a customs duty as defined in Article 1.4 (Definitions of General Application); or
(b) measures listed in exceptions (b) and (c) to the definition of customs duty in Article 1.4 (Definitions of General Application).
Article 21.4. DISCLOSURE OF INFORMATION
Nothing in this Agreement shall be construed to require a Party to furnish or give access to confidential information, the disclosure of which would impede law enforcement, or which would be contrary to the public interest, or which would prejudice the legitimate commercial interest of particular enterprises, whether public or private.
Article 21.5. EXCEPTION TO SAFEGUARD BALANCE OF PAYMENTS
1. Nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining restrictive measures with respect to trade in goods and services and with respect to payments and capital movements, including those related to investment:
(a) in cases of serious balance of payments difficulties or threats of balance of payments or external financial difficulties; or
(b) when, in special circumstances, payments for current transactions and payments and capital movements cause or threaten to cause serious difficulties in macroeconomic management, in particular for the management of the monetary policy or exchange rate policy of either Party.
2. All measures referred to in the preceding paragraph shall comply with the terms and conditions set forth in the WTO Agreement and the Articles of Agreement of the International Monetary Fund.
Chapter 22. FINAL PROVISIONS
Article 22.1. ANNEXES, APPENDICES AND FOOTNOTES
The Annexes, Appendices, and footnotes to this Agreement constitute an integral part of this Agreement.
Article 22.2. AMENDMENTS
1. The Parties may agree on any amendment to this Agreement.
2. When the amendment is agreed and approved in accordance with the legal procedures of each Party, the amendment shall constitute an integral part of this Agreement and shall enter into force in accordance with Article 22.5, unless the Parties agree on a different time period.
Article 22.3. AMENDMENTS TO THE WTO AGREEMENT
If any provision of the WTO Agreement that has been incorporated into this Agreement is amended, the Parties shall consult with a view to amending the corresponding provision of this Agreement, as appropriate, in accordance with Article 22.2.
Article 22.4. RESERVATIONS AND INTERPRETATIVE DECLARATIONS
This Agreement may not be the subject of reservations or unilateral interpretative declarations.
Article 22.5. ENTRY INTO FORCE
The Parties shall exchange written notifications confirming the fulfillment of the internal legal requirements necessary for the entry into force of this Agreement. This Agreement shall enter into force 60 days after the second such notification, or on such date as the Parties may agree.
Article 22.6. PROVISIONAL APPLICATION FOR COLOMBIA
Notwithstanding the provisions of Article 22.5, Colombia may provisionally apply this Agreement prior to its entry into force and until it enters into force in accordance with Article 22.5. Provisional application shall also cease at the moment that Colombia notifies Costa Rica of its intention not to become a Party to this Agreement, or of its intention to suspend provisional application.
Article 22.7. DENUNCIATION
Any Party may denounce this Agreement. The denunciation shall take effect 180 days after its notification in writing to the other Party, without prejudice that the Parties may agree on a different term to make the denunciation effective.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE at Cali, in two equally authentic and valid copies on the 22nd day of the month of May, 2013.
FOR THE GOVERNMENT OF THE REPUBLIC OF COLOMBIA:
Juan Manuel Santos Calderón
President of the Republic of Colombia
FOR THE GOVERNMENT OF THE REPUBLIC OF COSTA RICA:
Laura Chinchilla Miranda President of the Republic of Costa Rica.
Attachments
Annex I. EXPLANATORY NOTES
1. The Schedule of a Party to this Annex establishes, in accordance with Articles 12.7 (Nonconforming Measures) and 13.7 (Nonconforming Measures), the existing measures of a Party that are not subject to some or all of the obligations imposed by:
(a) Articles 12.2 (National Treatment) or 13.3 (National Treatment);
(b) Article 12.3 (Most-Favored-Nation Treatment) or 13.4 (Most-Favored-Nation Treatment);
(c) Article 12.5 (Senior Management and Boards of Directors);
(d) Article 12.6 (Performance Requirements);
(e) Article 13.5 (Market Access); or
(f) Article 13.6 (Local Presence).
2. Each tab of the Schedule sets out the following elements:
(a) Sector refers to the sector for which the tab has been made;
(b) Obligations Affected specifies the obligation or obligations referred to in the Articles described in paragraph 1 that, by virtue of Articles 12.7 (Nonconforming Measures) and 13.7 (Nonconforming Measures), do not apply to the listed measure or measures, as provided in paragraph 3;
(c) Measures identifies the laws, regulations or other measures in respect of which the entry has been made. A measure cited in the Measures element:
(i) means the measure as modified, continued or renewed, as of the date of entry into force of this Agreement; and
(ii) includes any measure subordinated to, adopted or maintained under the authority of, and consistent with, such measure; and
(iii) includes any measure adopted or maintained under the authority of, and consistent with, such measure.
(d) a description sets out the liberalization commitments, if any, as of the date of entry into force of this Agreement and the remaining non-conforming aspects of the existing measures on which the record has been made.
3. In interpreting a Schedule entry, all elements of the entry shall be considered. A fiche shall be interpreted in light of the relevant obligations of the Chapters in respect of which the fiche has been made. To the extent that:
(a) the Measures element is qualified by a liberalization commitment of the Description element, the Measures element so qualified shall prevail over any other element; and
(b) the Measures element is not qualified, the Measures element shall prevail over any other element, except where any discrepancy between the Measures element and the other elements taken as a whole is so substantial and material that it would be unreasonable to conclude that the Measures element should prevail, in which case, the other elements shall prevail to the extent of the discrepancy.
4. Pursuant to Articles 12.7 (Nonconforming Measures) and 13.7 (Nonconforming Measures), the Articles of this Agreement specified in the Affected Obligations element of a tab do not apply to the law, regulation or other measure identified in the Measures element of that tab.
5. Where a Party maintains a measure that requires a service supplier to be a national, permanent resident, or resident in its territory as a condition for the supply of a service in its territory, a Schedule entry made for that measure in connection with Articles 13.3 (National Treatment), 13.4 (Most-Favored-Nation Treatment), or 13.6 (Local Presence) shall operate as a Schedule entry in relation to Articles 12.2 (National Treatment), 12.3 (Most-Favored-Nation Treatment) or 12.6 (Performance Requirements) with respect to such measure.
6. For greater certainty, Article 13.5 (Market Access) refers to non-discriminatory measures.
Annex I. Schedule of Colombia
Sector: All Sectors
Obligations Concerned: Local Presence (Article 13.6)
Measures: Commercial Code of 1971, Arts. 469, 471 and 474
Description: Cross-Border Trade in Services
A legal person incorporated under the laws of another country and having its principal place of business in another country, must be established as a branch or other legal form in Colombia in order to develop a concession granted by the Colombian State.
Sector: All Sectors Obligations Concerned: National Treatment (Article 12.2) Measures: Decree 2080 of 2000, Art. 26
Description: Investment
Foreign investors may make portfolio investments in securities in Colombia only through an Administrator.
Sector: All Sectors
Obligations Concerned: National Treatment (Article 12.2)
Senior Executives and Boards of Directors (Article 12.5)
Measures: As established in the Description element, including Articles 3 and 11 of Law 22.1.
Articles 3 and 11 of Law 226 of 1995
Description: Investment
Colombia in selling or disposing of its equity interests or the assets of an existing state enterprise or governmental entity, may prohibit or impose limitations on the ownership of such interests or assets, and on the power of the owners of such interests or assets to control any resulting enterprise, by Costa Rican or non-Party investors or their investments. In connection with any such sale or other disposition, Colombia may adopt or maintain any measure relating to the nationality of senior executives or members of the board of directors.
Relevant existing legislation related to this non-conforming measure includes Law 226 of 1995. In that sense, if the Colombian State decides to sell all or part of its participation in an enterprise to a person other than another Colombian State enterprise or other Colombian governmental entity it will first offer such participation on an exclusive basis and in accordance with the conditions set forth in Article 11 of Law 226 of 1995, to:
(a) current workers, pensioners and former workers (other than former workers terminated with just cause) of the company and of other companies owned or controlled by such company;
(b) associations of employees or former employees of the company;
(c) labor unions;
(d) federations and confederations of workers' unions;
(e) employee funds;
(f) severance and pension funds; and
(g) cooperative entities (1).
However, once such participation has been transferred or sold, Colombia does not reserve the right to control subsequent transfers or other sales of such participation.
For purposes of this reservation:
(a) any measure maintained or adopted after the date of entry into force of this Agreement that, at the time of sale or other disposition, prohibits or imposes limitations on the ownership of equity interests or assets, or imposes nationality requirements described in this reservation, shall be deemed to be an existing measure; and
(b) State enterprise means an enterprise owned, or controlled through ownership rights, by Colombia and includes an enterprise established after the date of entry into force of this Agreement solely for the purpose of selling or disposing of equity interests in, or assets of, an existing State enterprise or governmental entity.
Sector: All sectors Obligations Concerned: Local Presence (Article 13.6) Measures: Law 915 of 2004, Art. 5
Description: Cross Border Trade in Services
Only a person with its principal place of business in the Free Port of San Andres, Providencia and Santa Catalina may provide services in this region.
For greater certainty, this measure does not affect the cross-border supply of services as defined in Article 13.15.
Sector: Accounting Services
Obligations Concerned: National Treatment (Article 13.3)
Local Presence (Article 13.6)
Measures: Law 43 of 1990, Art. 3 Par. 1
Resolution No. 160 of 2004, Art. 2 Par. and Art. 6
Description: Cross Border Trade in Services
Only persons registered with the Central Board of Accountants may practice as accountants. A foreigner must have been domiciled in Colombia uninterruptedly for at least three years prior to the application for registration and demonstrate accounting experience in the territory of Colombia for at least one year. This experience may be acquired simultaneously or subsequent to the public accounting studies.
For natural persons, the term "domiciled" means to be resident and have the intention to remain in Colombia.
Sector: Research and Development Services Obligations Concerned: National Treatment (Article 13.3) Measures: Decree 309 of 2000, Art. 7
Description: Cross Border Trade in Services
Any foreign person planning to conduct scientific research on biological diversity in the territory of Colombia must involve at least one Colombian researcher in the research or in the analysis of its results.
For greater certainty, this measure does not require or prohibit that foreign persons and Colombian researchers reach an agreement regarding the rights with respect to the scientific research or analysis.