1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application that relate to any matter covered by this Agreement are promptly published or otherwise made available for the information of interested persons and the other Party.
2. To the extent possible, each Party:
(a) publish any measure referred to in paragraph 1 which it proposes to adopt relating to matters covered by this Agreement, and
(b) shall afford interested persons and the other Party the opportunity to comment on such measures.
Article 16.3. Provision of Information
1. At the request of a Party, and to the extent permitted by its domestic law, the other Party shall provide information and respond promptly to questions conceming any matter that could materially affect this Agreement.
2. Any provision of information provided under this Article shall be without prejudice to whether or not the measure is consistent with this Agreement.
Article 16.4. Administrative Procedures
In order to administer 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 procedures applying the measures referred to in Article 16.2.1 with respect to particular persons, goods or services of the other Party in specific cases:
(a) whenever possible, persons of the other Party who are directly affected by a proceeding shall, in accordance with domestic law, be given reasonable notice of the commencement of the proceeding, including a description of its nature, a statement of the legal basis under which the proceeding is initiated, and a general description of all matters in dispute;
(b) when time, the nature of the proceeding and the public interest permit, such persons are given a reasonable opportunity to present facts and arguments in support of their claims prior to any final administrative action; and
(c) its procedures are in accordance with national legislation.
Article 16.5. Review and Challenge
1. Each Party shall establish or maintain courts or tribunals or procedures of a judicial or administrative nature for the purpose of the prompt review and, where warranted, correction of final administrative actions relating to matters covered by this Agreement. Such tribunals shall be impartial and not connected with the administrative enforcement agency or authority, and shall have no substantial interest in the outcome of the matter.
2. Each Party shall ensure that, before such courts or in such proceedings, the Parties have the right to:
(a) a reasonable opportunity to support or defend their respective positions; and
(b) a decision based on the evidence and arguments or, in cases where required by national legislation, on the record compiled by the administrative authority.
3. Each Party shall ensure that, subject to the means of challenge or subsequent review available under its domestic law, such rulings are implemented by its agencies or authorities and govern the practice of such agencies or authorities with respect to the administrative action in question.
Article 16.6. Specific Rules
The provisions of this Chapter are without prejudice to the specific rules established in other Chapters of this Treaty.
Article 16.7. 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 that generally fall within its scope, and that establishes a standard of conduct, but does not include:
(a) rulings or decisions in an administrative proceeding that applies to a particular person, good or service of the other Party in a specific case; or
(b) a resolution that resolves with respect to a particular act or practice.
Chapter 17. Administration of the Treaty
Article 17.1. The Free Trade Commission
1. The Parties establish the Free Trade Commission, composed of representatives at the Ministerial level of each Party, in accordance with Annex 17.1, or their designees.
2. The Commission shall:
(a) supervise the implementation of the Treaty;
(b) supervise the further development of the Treaty;
(c) oversee the work of all bodies established under this Treaty, including committees and working groups;
(d) approve atits first meeting, unless otherwise agreed by the Parties, the Rules of Procedure and Code of Conduct referred to in Chapter 15 (Dispute Settlement), and modify them as necessary;
(e) fix the amount of remuneration and expenses to be paid to the members of the panels referred to in Chapter 15 (Dispute Settlement);
(f) to hear any other matter that may affect the operation of the Treaty, and
(g) establish and modify its rules of procedure.
3. The Commission may:
(a) establish and delegate responsibilities to the bodies established under this Treaty;
(b) modify in compliance with the objectives of this Treaty:
(i) the Schedules set out in Annex 2.3 (Tariff Elimination Program) by improving the tariff conditions for market access, including the possibility of accelerating tariff elimination and including one or more excluded goods in the Tariff Elimination Program;
(ii) the rules of origin set forth in Annex 3 (Specific Rules of Origin), Annex 3.16 (Certificate of Origin) and Annex 3.17 (Declaration of Origin); and
(iii) Annex 10.1 (Coverage Annex);
(c) issue interpretations of the provisions of this Agreement,
(d) analyze any proposed amendments to this Agreement in order to make a recommendation to the Parties;
(e) review the impacts of the Treaty on the micro, small and medium-sized enterprises of the Parties;
(f) seek the advice of non-govemmental individuals or groups; and
(g) take any other action for the exercise of its functions as agreed by the Parties.
4. Each Party shall implement, in accordance with its national legislation, any modification referred to in subparagraph 3(b), within the period agreed by the Parties.
5. All decisions of the Commission shall be adopted by mutual agreement
6. The Commission shall meet at least once (1) a year in regular session, unless the Commission decides otherwise. The regular sessions of the Commission shall be held alternately in the territory of the Parties or by any technological means.
Article 17.2. Free Trade Agreement Coordinators
1. Each Party shall designate a Free Trade Agreement Coordinator, in accordance with Annex 17.2.
2. The Coordinators will work together in the development of agendas, as well as in other preparations for the meetings of the Commission and will give appropriate follow-up to the decisions of the Commission.
Article 17.3. Administration of the Dispute Resolution Procedures
1. Each Party shall:
(a) designate an office to provide administrative support to the panels contemplated in Chapter 15 (Dispute Resolution) and perform other functions at the direction of the Commission; and
(b) notify the other Party of the address of its designated office.
2. Each Party shall be responsible for the operation and costs of its designated office.
Annex 17.1. The Free Trade Commission
The Free Trade Commission shall be composed of:
(a) Peru: the Minister of Foreign Trade and Tourism; and
(b) Costa Rica: the Minister of Foreign Trade, or
his successors.
Annex 17.1.3(b) . Implementation of the Modifications Approved by the Free Trade Commission
In the case of Costa Rica, the decisions of the Commission under Article 17.1.3 (b) (The Free Trade Commission) shall be equivalent to the instrument referred to in Article 121.4, third paragraph, (lower-ranking protocol), of the Political Constitution of the Republic of Costa Rica.
Annex 17.2 . Free Trade Agreement Coordinators
The Free Trade Agreement Coordinators will be for:
(a) Peru: the unit designated by the Vice-Minister of Foreign Trade; and
(b) Costa Rica: the Director General of Foreign Trade of the Ministry of Foreign Trade or his designee,
or their successors.
Chapter 18. Exceptions
Article 18.1. General Exceptions
1. For the 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 (Cooperation and Mutual Assistance in Customs Matters), Chapter 6 (Sanitary and Phytosanitary Measures) and Chapter 7 (Technical Barriers to Trade), Article XX of GATT 1994 and its interpretative notes are incorporated into and form an integral part of this Agreement, 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 13 (Cross-Border Trade in Services) and Chapter 14 (Temporary Entry of Business Persons), Article XIV of the WTO 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 WTO GATS include environmental measures necessary to protect human, animal or plant life or health.
Article 18.2. Essential Safety
Nothing in this Agreement shall be construed as meaning to:
(a) oblige a Party to provide or give access to information the disclosure of which it considers contrary to its essential security interests; or
(b) prevent a Party from applying measures it considers necessary to fulfill its obligations with respect to the maintenance or restoration of international peace or security, or to protect its essential security interests.
Article 18.3. 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 the provisions of paragraph 2:
(a) Article 2.2 (National Treatment) and such other provisions in this Agreement as are necessary to give effect to the provisions of Article III of GATT 1994 shall apply to taxation measures to the same extent as Article III of GATT 1994; and
(b) Article 2.11 (Export Taxes) shall apply to tax measures.
4. Subject to the provisions of paragraph 2:
(a) Article 13.3 (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 subparagraph 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) and 13.3 (National Treatment) and 13.4 (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. Paragraph 4 may not:
(a) impose any most-favored-nation obligation with respect to the benefit granted by a Party pursuant to any tax convention;
(b) apply to any non-conforming provision of any existing tax measure;
(c) apply to the continuation or prompt renewal of a non-conforming provision of any existing tax measure;
(d) apply to an amendment to a non-conforming provision of any existing tax measure, to the extent that such amendment does not, at the time it is made, reduce its degree of conformity with any of the articles referred to in paragraph 4;
(e) apply to the adoption or enforcement of any taxation measure aimed at ensuring the equitable or effective application or collection of taxes (as permitted under Article XIV(d) of the WTO GATS); or
(f) apply to a provision that conditions the receipt, or continued receipt, of an advantage in relation to 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.
7. (a) Article 12.10 (Expropriation and Compensation) and 12.16 (Submission of a Claim to Arbitration) shall apply to a taxation measure that is claimed to be expropriatory. However, no investor may invoke Article 12.10 (Expropriation and Compensation) as a basis for a claim where it has been determined pursuant to this paragraph that the measure does not constitute an expropriation (1). An investor seeking to invoke Article 12.10 (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 subparagraph (b), at the time it delivers written notice of its intention to submit a claim to arbitration under Article 12.16 (Submission of a Claim to Arbitration), for those authorities to determine whether the taxation measure constitutes an expropriation. If the competent authorities do not agree to examine the matter or if, having agreed to examine the matter, they do not agree that the measure does not constitute an expropriation, within six (6) months after the matter has been submitted to them, the investor may submit its claim to arbitration, in accordance with Article 12.16 (Submission of a Claim to Arbitration).
(b) For the purposes of this paragraph, competent authorities means:
(i) in the case of Costa Rica, the Ministry of Finance; and
(ii) in the case of Peru, the Ministry of Economy and 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 tax convention or arrangement, and
taxes and tax measures do not include: (a) a customs duty as defined in Article 1.5 (Definitions of General Application); or
(b) the measures listed in exceptions (b) and (c) of the definition of customs duty in Article 1.5 (Definitions of General Application).
Article 18.4. Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to fumish or give access to confidential information, the disclosure of which would impede the enforcement of its domestic law, 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 18.5. Measures to Safeguard the Balance of Payments
In accordance with the WTO Agreement and consistent with the Articles of Agreement of the international Monetary Fund, a Party may adopt or maintain temporary, non-discriminatory safeguard measures with respect to payments and capital movements that it considers necessary:
(a) in the event of the existence or threat of serious extemal financial or balance of payments difficulties; or
(b) in cases where, under exceptional circumstances, payments and capital movements cause or threaten to cause serious difficulties for macroeconomic management, particularly in monetary and exchange rate policy.
Chapter 19. Final Provisions
Article 19.1. Annexes, Appendices and Footnotes
The Annexes, Appendices, and Footnotes to this Agreement constitute an integral part of this Agreement.
Article 19.2. Amendments
1. The Parties may agree to 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 on the date on which the Parties so agree.
Article 19.3. Amendments to the Agreement on the WTO
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 19.2.
Article 19.4. Reservations and Interpretative Statements
This Treaty shall not be subject to reservations or unilateral interpretative declarations.
Article 19.5. Entry Into Force
This Agreement shall enter into force sixty (60) days after the date on which the Parties exchange written notifications confirming that they have complied with their respective legal procedures or on the date on which the Parties so agree.
Article 19.6. Denunciation
Either Party may denounce this Agreement. The denunciation shall take effect one hundred and eighty (180) days after written notification to the other Party, notwithstanding that the Parties may agree on a different period of time to give effect to the denunciation.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Govermments, have signed this Treaty.
DONE at San José, Republic of Costa Rica, in two equally authentic and valid copies, on the 26th day of May, 2011.
BY THE GOVERNMENT OF THE REPUBLIC OF COSTA RICA:
Anabel Gonzalez Campabadal
Minister of Foreign Trade
BY THE GOVERNMENT OF THE REPUBLIC OF PERU:
Eduardo Ferreyros Kippers
Minister of Foreign Trade and Tourism
AS A WITNESS OF HONOR:
Laura Chinchilla Miranda
President of the Republic of Costa Rica Rica
Attachments
Annex I . Nonconforming Measures
Annex I . Explanatory Note
1. A Party's Schedule to this Annex sets out, in accordance with Article 12.7 (Nonconforming Measures) and Article 13.7 (Nonconforming Measures), the non- conforming aspects of a Party's existing measures that are not subject to some or all of the obligations imposed by:
(a) Article 12.2 (National Treatment) or Article 13.3;
(b) Article 12.3. (Most-Favored-Nation Treatment) or Article 13.4 (Most- Favored-Nation Treatment);
(c) Article 12.5 (Senior Executives 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 reservation in the Party's Schedule sets forth the following elements:
(a) Sector refers to the general sector for which the reservation has been made;
(b) Subsector refers to the specific sector for which the reservation has been made;
(c) Affected Obligations specifies the obligation(s) referred to in paragraph 1 that, in accordance with Article 12.7 (Non-Conforming Measures) and Article 13.7 (Non-Conforming Measures), do not apply to the non-conforming aspects of the measure(s) listed as provided for in paragraph 3;