Article 11.6. Notification
1. Each Party, through its competition authority or authorities, shall endeavor to notify the other Party of an enforcement activity if it considers that such enforcement activity may substantially affect the important interests of the other Party.
2. Provided that it is not contrary to the Parties' competition laws and does not affect any ongoing investigation, the Parties shall endeavor to notify at an carly stage and in a detailed manner sufficient to permit an assessment in light of the other Party's interests.
Article 11.7. Consultation
1. For the purpose of promoting understanding between the Parties, or to address specific matters arising under this Chapter, at the request of the other Party, a Party shall enter into consultations with the requesting Party, provided that it is not contrary to the laws of the Parties and does not affect any research being conducted.
2. Inits request, the requesting Party shall indicate, if appropriate, how the matter affects trade or investment between the Parties. The Party addressed shall give full and sympathetic consideration to the concerns of the requesting Party.
3. To facilitate discussion of the subject matter of the consultations, the national competition authorities of each Party shall endeavor to provide relevant, non-confidential and non-privileged information to the other Party.
Article 11.8. Exchange of Information
1. Each Party shall endeavor, upon request of the other Party, to provide information to facilitate the effective enforcement of its respective competition laws, provided that it does not affect any ongoing investigation and is consistent with the laws and regulations governing the competition authorities possessing the information.
2. Each Party shall maintain the confidentiality of any information provided as confidential by the competition authority of the other Party and shall not disclose such information to any entity that is not authorized by the Party providing the information.
Article 11.8. Technical Cooperation
1. The Parties may promote technical cooperation, including the exchange of experiences, capacity building through training programs, workshops and research collaborations, in order to enhance each Party's capacity related to competition policy and enforcement.
2. The Parties agree to cooperate in a manner consistent with their respective laws and within reasonably available resources.
Article 11.10. Consumer Protection
1. Each Party shall adopt or maintain national consumer protection or other laws, recognizing that enforcement of such laws is in the public interest. Laws adopted or maintained by a Party to prohibit such activities may be administrative, civil or criminal in nature.
2. The Parties may cooperate on matters of mutual interest relating to consumer protection. Such cooperation shall be carried out in a manner consistent with the Parties' respective laws and within their available resources.
3. Each Party also recognizes the importance of improving awareness of and access to consumer redress mechanisms.
Article 11.11. Independenceof Competition Law Enforcement
This Chapter should not interfere with the independence of cach Party in the application of their respective competition laws.
Article 11.12. Dispute Settlement
No Party may resort to dispute settlement under this Agreement for any matter arising under this Chapter.
Article 11.13. Definitions
For the purposes of this Chapter:
anti-competitive business conduct means business conduct or transactions that adversely affect competition in the territory of a Party, such as:
(a) agreements between undertakings, decisions by associations of undertakings and concerted practices that have as their object or effect the prevention, restriction or distortion of competition in the territory of any Party as a whole or in a substantial part thereof;
(b) any abuse by one or more enterprises of a dominant position in the territory of any of the Parties as a whole or in a substantial part thereof;
(b) concentrations between undertakings, which significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position in the territory of any Party as a whole or in a substantial part thereof; or
(d) acts of unfair competition.
competition laws means:
(a) for China, the Anti-Monopoly Law, the Law Against Unfair Competition and the implementing regulations and amendments; and
(b) for Ecuador, the Law of Regulation and Control of Market Power, the Regulations to the Organic Law of Regulation and Control of Market Power and the implementing regulations and amendments.
Chapter 12. Transparency
Article 12.1. Points of Contact
1. Each Party shall designate a point of contact to facilitate communication between Parties on any matter related to this Agreement.
2. At the request of the other Party, the contact point shall identify the office or official responsible for the matter and assist, as necessary, in facilitating communication with the requesting Party.
Article 12.2. Publication
1. Each Party shall ensure that measures relating to any matter covered by this Agreement are published in a timely manner or made available in such a manner as to enable interested persons of the other Party and the other Party to become acquainted with them.
2. To the extent possible, each Party shall allow a reasonable period of time for the other Party and interested persons of the other Party to provide comments to the competent authorities before the above-mentioned measures are applied.
Article 12.3. Notification and Provision of Information
1. To the extent possible, cach Party shall notify the other Party of any actual or proposed measure that the Party considers could materially affect the operation of this Agreement or substantially affect the other Party's legitimate interests under this Agreement.
2. Upon request of the other Party, to the extent possible, a Party shall, in a timely manner, provide information and respond to questions regarding any current or proposed measure that the other Party considers could materially affect the operation of this Agreement or substantially affect its legitimate interests under this Agreement, whether or not the other Party has previously been notified of that measure.
3. Any notification or information provided under this Article shall be without prejudice to whether the measure is consistent with this Treaty.
4. The information referred to in this Article shall be deemed to be provided when, by appropriate notification, it has been made available to the WTO or when it is available on the official, public and freely accessible website of the requested Party.
Article 12.4. Administrative Procedures
1. With a view to administering in a consistent, impartial and reasonable manner all measures of general application affecting matters covered by this Agreement, each Party shall ensure that, in its administrative proceedings in which measures referred to in Article 12.2 (Publication) are applied to particular persons or goods of the other Party on a case-by-case basis, that:
(a) whenever possible, persons of the other Party who are directly affected by a proceeding are given reasonable notice, in accordance with domestic procedures, when the proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated and a general description of any matter in dispute;
(b) such persons have a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when time, the nature of the proceeding and the public interest permit; and
(c) its procedures are in accordance with national legislation.
Article 12.5. Review and Appeals
1. Each Party shall establish or maintain tribunals or procedures for the purpose of prompt review and, where warranted, correction of final administrative actions relating to the implementation of laws, regulations, procedures and administrative rulings of general application relating to any matter covered by this Agreement. Such tribunals shall be impartial and independent of the office or authority charged with administrative enforcement and shall have no substantial interest in the outcome of the matter.
2. Each Party shall ensure that, in any such court or proceeding, the parties to the proceeding have the right to:
(a) areasonable opportunity to support or defend their respective positions; and
(b) a decision based on evidence and submissions of record or, where required by national law, the record compiled by the administrative authority.
3. Each Party shall ensure, subject to appeal or further review as provided in its domestic law, that such decisions are implemented by and govern the practice of the office or authority with respect to the administrative action that is the subject of the decision.
Article 12.6. Relationship with other Chapters
1. This Chapter shall not apply to Chapter 16 (Economic Cooperation).
2. In the event of any inconsistency between this Chapter and another Chapter of this Agreement, the other Chapter shall prevail to the extent of the inconsistency.
Article 12.7. Definitions
For the purposes of this Chapter:
administrative ruling of general application means an administrative ruling or interpretation that applies to all persons and factual situations falling generally within its scope and that establishes a standard of conduct, but does not include:
(a) a ruling or determination made in an administrative or quasi-judicial proceeding, where applicable, that applies to a person, good or service of the other Party in a specific case; or
(b) aruling that fails with respect to a particular act or practice; and
measures means laws, regulations, procedures and administrative rulings of general application.
Chapter 13. Dispute Settlement
Article 13.1. Cooperation
The Parties shall at all times endeavor to agree on the interpretation and application of this Agreement and shall make every effort to reach a mutually satisfactory resolution of any matter that may affect their operation when a dispute occurs through cooperation and consultation.
Article 13.2. Scope of Application (7)
Except as otherwise provided in this Agreement, where a Party considers that a measure of the other Party is inconsistent with its obligations under this Agreement or the other Party has otherwise failed to comply with its obligations under this Agreement, and with respect to the prevention or settlement of all disputes between the Parties concerning the interpretation or application of this Agreement, the dispute settlement provisions of this Chapter shall apply.
Article 13.3. Election of Forum
1. Where a dispute arises under this Agreement and another trade agreement to which both Parties are party, including the WTO Agreements, the complaining Party may select the forum in which to resolve the dispute.
2. Once the complaining Party has requested the establishment of, or otherwise referred a matter to, a panel or tribunal under an agreement referred to in paragraph 1, the forum selected shall be used to the exclusion of other forums.
Article 13.4. Consultations
1. The Parties shall make every effort to reach a mutually satisfactory resolution of any dispute through consultations in accordance with this Article or other consultative provisions of this Treaty.
2. A Party may request consultations with the other Party with respect to any measure or other matter that it considers may affect the interpretation or application of this Agreement. The request for consultations shall be in writing and shall state the reasons for the request, including identification of the measure in dispute and an indication of the legal basis for the complaint. The complaining Party shall deliver the request to the Party consulted.
3. If a request for consultations is made, the consulted Party shall respond to the request within 10 days from the date of its receipt and shall enter into consultations in good faith, with a view to reaching a mutually satisfactory solution, within a period of:
(a) 15 days after the date of receipt of the request in urgent matters relating to perishable goods, or
(b) 30 days after the date of receipt of the application for all other matters.
4. In a consultation, each Party shall provide sufficient information to permit a full analysis of how the measure in force or other matter in question could affect the operation and implementation of this Agreement.
5. If the consulted Party fails to respond or to initiate consultations within the time limit specified in paragraph 3, then the complaining Party may proceed directly to request the establishment of an Arbitral Tribunal in accordance with Article 13.6 (Request for Establishment of an Arbitral Tribunal).
6. Consultations may be held in person or by any technological means available to the Parties. Unless otherwise agreed by the Parties, if the consultations are face-to-face, they shall be held alternately between the cities of each Party. The city for such meetings shall be identified by the host Party. Face-to-face meetings shall commence in a city of the Party consulted.
7. Consultations shall be confidential and shall be without prejudice to the rights of either Party in any other proceeding.
Article 13.5. Good Offices, Conciliation and Mediation
1. The Parties may voluntarily agree at any time to good offices, conciliation and mediation. These procedures may be commenced and terminated at any time.
2. Proceedings involving good offices, conciliation and mediation, and in particular the positions taken by the Parties during such proceedings, shall be confidential and without prejudice to the rights of cither Party in any other proceedings.
Article 13.6. Application for the Establishment of an Arbitral Tribunal
1. Ifthe consultation referred to in Article 13.4 (Consultations) fails to resolve the matter within 60 days, or 30 days in urgent matters involving perishable goods, after receipt of the request for consultations, the complaining Party may request in writing the establishment of an Arbitral Tribunal to consider the matter and shall appoint an arbitrator.
2. The complaining Party shall indicate in the request whether consultations were held, identify the specific measures in dispute and provide a brief summary of the legal basis of the complaint, sufficient to present the problem clearly, and deliver the request to the Party consulted. The Arbitral Tribunal is established upon receipt of a request.
3. Unless the disputing Parties agree otherwise, the tribunal shall be established, selected and perform its functions in a manner consistent with this Chapter.
Article 13.7. Composition of an Arbitral Tribunal
1. The Parties shall apply the following procedures in selecting the Tribunal:
(a) The Arbitral Tribunal shall be composed of three members;
(b) Within 15 days after the establishment of the arbitral tribunal, the Party complained against shall appoint an arbitrator;
(c) The Parties shall appoint by mutual agreement the third arbitrator, who shall act as presiding arbitrator, within 30 days after the establishment of the arbitral tribunal;
(d) If any arbitrator of the arbitral tribunal has not been designated or appointed within 30 days after the establishment of the arbitral tribunal, any Party may request that the Director-General of the WTO designate an arbitrator within 30 days of such request. If one or more arbitrators are appointed pursuant to this paragraph, the Director-General of the WTO shall be authorized to designate the Chairman of the Tribunal. The date of composition of the arbitral tribunal shall be the date of appointment of the chairman.
2. Unless otherwise agreed by the Parties, the presiding arbitrator shall be the chairman of the arbitral tribunal:
(a) shall not be a national of either Party;
(b) shall not have his or her habitual residence in the territory of either Party;
(c) shall not be employed by either Party; and
(d) will not have dealt with the matter in any way.
3. All arbitrators shall:
(a) have specialized knowledge or experience in law, international trade, other matters covered by this Agreement, or dispute resolution arising under international trade agreements relevant to the subject matter in dispute;
(b) be chosen strictly on the basis of objectivity, impartiality, reliability and sound judgment;
(c) be independent of both Parties, and not be affiliated with or receive instructions from either Party;
(d) comply with a code of conduct in accordance with the rules set forth in WTO document WT/DSB/RC/1.
4. If an arbitrator appointed pursuant to this Article resigns or becomes unable to act, an alternate arbitrator shall be appointed within 30 days in accordance with the selection procedure prescribed for the appointment of the original arbitrator. The alternate shall have all the powers and duties of the original arbitrator. The work of the arbitral tribunal shall be suspended during the replacement of the successor.
5. If a Party considers that an arbitrator is violating the code of conduct referred to in paragraph 3(d), both Parties shall consult and, if they agree, the arbitrator shall be removed, and a new arbitrator shall be appointed in accordance with this Article.
Article 13.8. Functions of the Arbitral Tribunal
1. The function of an arbitral tribunal is to make an objective assessment of the matter submitted to it, including an analysis of the facts of the case and the applicability of and compliance with this Treaty.
2. Unless otherwise agreed by the Parties within 20 days from the date of the establishment of the arbitral tribunal, the terms of reference shall be:
"To consider, in the light of the relevant provisions of this Treaty, the question referred to in the request for the establishment of a panel in accordance with Article 13.6 (Request for Establishment of an Arbitral Tribunal) and make findings of fact and conclusions of law, together with reasons and recommendations, if any, for the resolution of the dispute."
3. Where the Parties have agreed different terms of reference, they shall notify the tribunal within 2 days of their composition.
4. Where an arbitral tribunal finds that a measure is inconsistent with this Agreement, it shall recommend that the Party complained against bring the measure into conformity with this Agreement.
5. The arbitral tribunal shall consider this Agreement in accordance with customary tules of interpretation of public international law. The arbitral tribunal, in its rulings and recommendations, may not add to or diminish the rights and obligations provided for in this Agreement.
Article 13.9. Rules of Procedure of an Arbitral Tribunal
1. Unless the Parties agree otherwise, the arbitral tribunal shall follow the rules of procedure set forth in Annex 6 (Rules of Procedure of the Arbitral Tribunal) and may, after consultation with the Parties, adopt additional rules of procedure not inconsistent with Annex 6.
2. The remuneration of the arbitrators and other expenses of the arbitral tribunal shall be borne by the Parties in equal shares.
Article 13.10. Suspension or Termination of Proceedings
The Parties may agree that the arbitral tribunal shall suspend its work at any time for a period not exceeding 12 months from the date of such agreement. If the work of the arbitral tribunal has been suspended for more than 12 months, the authority for the establishment of the arbitral tribunal shall lapse unless the Parties agree otherwise, without prejudice to the right of the complaining Party to request consultations and subsequently request the establishment of a tribunal on the same matter at a later stage. This paragraph shall not apply where the suspension is the result of good faith attempts to reach a mutually satisfactory solution in accordance with Article 13.5 (Good Offices, Conciliation and Mediation).
The Parties may agree to terminate the arbitral tribunal proceedings by prior to the notification of the court's report.
Article 13.11. Report of the Arbitral Tribunal
1. The arbitral tribunal shall base its report on the relevant provisions of this Agreement, the submissions and arguments of the Parties and such other information, if any, as it has obtained in accordance with paragraph 14 of Annex 6 (Rules of Procedure of the Arbitral Tribunal).
2. Unless the Parties to the dispute agree otherwise, the arbitral tribunal shall submit an initial report to the Parties:
(a) within 120 days from the date of its composition; or
(b) in case of urgent matters relating to perishable goods, within 60 days from the date of the composition of the arbitral tribunal.
3. The initial report will include:
(a) factual and legal background; and
(b) its findings as to whether a Party has failed to comply with its obligations under this Treaty, or any other determination if so requested in the terms of reference.
4. In exceptional cases, if the arbitral tribunal considers that it cannot issue its initial report within 120 days, or within 60 days in the case of urgent matters involving perishable goods, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will issue its report. Any delay shall not exceed an additional 30 days, unless otherwise agreed by the Parties.
5. Unless otherwise agreed by the Parties, each Party may submit written comments to the arbitral tribunal within 15 days after the issuance of the initial report.
6. The arbitral tribunal shall make every effort to reach its decisions by consensus. If the arbitral tribunal is unable to reach a consensus, it may make its decision by majority vote. The arbitrators may cast saved votes on matters not unanimously agreed upon. All opinions expressed in the report of the arbitral tribunal by individual arbitrators shall be anonymous.
7. After considering any written comments on the initial report, the arbitral tribunal may reconsider its report and make any additional analysis it deems appropriate.
Article 13.12. Final Report
1. After considering the written comments submitted by the Parties, and conducting any additional analysis it deems appropriate, the arbitral tribunal shall submit its final report, including any saved votes on matters not unanimously agreed, to the Parties within 30 days of the issuance of the initial report, or 15 days in the case of urgent matters involving perishable goods.
2. Unless either Party disagrees, the final report shall be made available to the public no later than 15 days after its issuance to the Parties, subject to the protection of confidential information.
3. The final report of the arbitral tribunal is final and binding on the Parties.
Article 13.13. Request for Clarification of Report
1. Within 15 days after notification of the report, either Party may submit a written request to the tribunal to clarify any clement that the Party considers requires further explanation or definition. The panel shall send a copy of the request to the other Party.
2. The court shall respond to the request within 15 days of the filing of such request. The court's clarification shall only be a more precise explanation of the contents of the report, and not an amendment of the report.
3. The filing of the request for clarification shall not postpone the effect of the tribunal's report or the enforcement of the decision made, unless the tribunal decides otherwise.
Article 13.14. Compliance with the Final Report of the Arbitral Tribunal
1. Where the arbitral tribunal concludes that a Party has not complied with its obligations under the obligations under this Agreement, the failure, whenever possible, shall be to eliminate the nonconformity.
2. Unless the Parties reach an agreement on compensation or other mutually satisfactory solution, the Party complained against shall implement the recommendations contained in the final report of the arbitral tribunal within a reasonable period of time if immediate compliance is not feasible.
Article 13.15. Reasonable Time
1. The reasonable period of time referred to in Article 13.14: (Compliance with the Final Report of the Arbitral Tribunal) shall be mutually determined by the Parties. Where the Parties fail to agree on the reasonable period of time within 45 days after the issuance of the final panel report, cither Party may, to the extent possible, refer the matter to the original arbitral tribunal, which shall determine the reasonable period of time.
2. The panel shall communicate its ruling to the Parties within 60 days from the date of the referral of the matter. Where the arbitral tribunal considers that it cannot submit its report within this period, it shall inform the Parties in writing of the reasons for the delay, together with an estimate of the time within which it will provide its determination. Any delay shall not exceed an additional 30 days, unless the Parties agree otherwise.
3. The reasonable period of time should normally not exceed 15 months from the date of publication of the final report of the arbitral tribunal. The reasonable period of time may be extended by mutual agreement of the Parties.
Article 13.16. Review of Compliance
1. Without prejudice to the procedures under Article 13.17 (Suspension of Concessions or Other Obligations), if the Party complained against considers that it has eliminated the non-conformity found by the arbitral tribunal, it may notify the complaining Party in writing with a description of how the non-conformity has been eliminated. If the complaining Party does not agree, it may refer the matter back to the original arbitral tribunal within 45 days after receipt of such written notice, and the matter shall be decided by recourse to the dispute settlement procedures provided for in this Chapter. Otherwise, the complaining Party shall promptly stop the suspension of concessions or other obligations referred to in Article 13.17 (Suspension of Concessions or Other Obligations).
2. The arbitral tribunal shall submit its report to the Parties within 60 days from the date of the referral of the case. Where the arbitral tribunal considers that it cannot submit its report within this period, it shall inform the Parties in writing of the reasons for the delay, together with an estimate of the time within which it will submit its report. Any delay shall not exceed an additional 30 days, unless the Parties agree otherwise.