(h) review this Chapter in light of any developments under the WTO TBT Agreement, and decisions or recommendations of the WTO TBT Committee, and make suggestions for 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 TBT 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 15.4 (Consultations).
5. The representatives of each Party in accordance with Annex 7.10, shall be responsible for coordinating with relevant bodies and persons in its territory, as well as to ensure that such bodies and persons are summoned.
6. Unless otherwise agreed by the Parties, the Committee shall meet at least once (1) 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 altemately 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 of the Parties is being imported into the territory of the other Party, in quantities that have increased by such an amount in absolute terms or relative to domestic production and under such conditions as to constitute a substantial cause of serious injury or threat of serious injury 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) 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 extension, 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 8.1.1 and 8.1.3. 8.1 y 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 report of 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 for:
(a) Costa Rica: the Trade Defense Directorate of the Ministry of Economy, Industry and Commerce; and
(b) in Peru: the Vice Ministry of Foreign Trade of the Ministry of Foreign Trade and Tourism, or its 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;
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 the 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 in accordance with Section A; and
(b) a measure under Article XIX of GATT 1994 and the WTO Agreement on Safequards.
4. For the purposes of this Section, competent investigating authority means for:
(a) Costa Rica: the Trade Defense Directorate of the Ministry of Economy, Industry and Commerce; and
(b) in Peru: the Instituto Nacional de Defensa de la Competencia y de la Protecci6n de la Propiedad Intelectual, or its successors.
5. Except as provided in paragraph 3, Chapter 15 (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 Antidumping Agreement, and the WTO Subsidies Agreement, 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, competent investigating authority means for: (a) Costa Rica: the Trade Defense Directorate of the Ministry of Economy, Industry and Commerce; and (b) in Peru: the Instituto Nacional de Defensa de la Competencia y de la Protecci6n de la Propiedad Intelectual, or its successors. 5. Chapter 15 (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 Partiesâ 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 Dec/aration 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 prejudice the provisions of such multilateral treaties.
3. Each Party, in formulating or amending its national 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 a 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 for this purpose.
Article 9.3. Trademarks
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, whether or not it is registered, provided that the use of such a mark is not identical or similar to those identified by a well-known mark, whether or not it is registered, and provided that the use of such trademark in relation to those goods or services indicates a connection between those goods or services and the trademark owner, and provided that the interests of the trademark owner could be injured by such use.
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 Conceming the International Classification of Goods and Services for the Purposes of the Registration of Marks, 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.
Article 9.4. Geographical Indications
1. Geographical indications are those that identify a good as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin, which may include natural or human factors.
2. Each Party shall establish in its national legislation mechanisms for the registration and protection of geographical indications, including appellations of origin.
3. Nothing in this Article shall prevent the Parties from maintaining or adopting in their national legislation measures relating to homonymous geographical indications.
4. The names listed in Section A of Annex 9.4 are protected geographical indications in Peru, pursuant to Article 22.1 of the WTO TRIPS Agreement. Subject to the requirements and procedures for their protection provided for in the national laws and regulations of Costa Rica and, in a manner consistent with the WTO TRIPS Agreement, these names shall be protected as geographical indications in the territory of Costa Rica.
5. The names listed in Section B of Annex 9.4 are protected geographical indications in Costa Rica, pursuant to Article 22.1 of the WTO TRIPS Agreement. Subject to the requirements and procedures for their protection provided for in the national laws and regulations of Peru and, in a manner consistent with the WTO TRIPS Agreement, these names shall be protected as geographical indications in the territory of Peru.
6. The geographical indications of a Party that are granted protection in the territory of the other Party shall be notified to the Party concemed, once the respective procedure is completed, through the contact points established in Article 16.1 (Contact Points) and shall enjoy the protection established in paragraphs 7 and 8.
7. The Parties shall protect the geographical indications, including appellations of origin, of the other Party registered and/or protected in their respective territories in accordance with the provisions of paragraphs 4, 5 and 6. Accordingly, and without prejudice to the provisions of paragraph 3, the Parties shall not permit the importation, manufacture or sale of products under such geographical indications, including appellations of origin, unless such products have been produced and certified in the country of origin, in accordance with the national legislation applicable to such products.
8. The use of geographical indications, including appellations of origin, recognized and protected in the territory of a Party in relation to any type of product originating in the territory of said Party, is reserved exclusively for authorized producers, manufacturers and craftsmen who have their production or manufacturing establishments in the locality or region of the Party designated or evoked by said geographical indication.
9. The Parties may grant the agreed protection to other geographical indications, including appellations of origin, protected in the Parties. To this end, the Party concerned shall notify the other Party of such protection, after which it shall proceed as provided in paragraphs 4, 5 and 6.
Article 9.5. Measures Related to the Protection of Biodiversity and Traditional Knowledge
1. The Parties recognize the importance and value of their biological diversity and its components. Each Party exercises sovereignty over its biological and genetic resources and their derived products, and accordingly determine the conditions of their access, in accordance with the principles and provisions contained in relevant national and international standards.
2. The Parties recognize the importance and value of the knowledge, innovations and practices of indigenous and local communities (2), as well as their past, present and future contribution to the conservation and sustainable use of biological and genetic resources and their derived products, and in general, the contribution of the traditional knowledge of such communities to the culture and economic and social development of nations.
Each Party, in accordance with its national legislation, reiterates its commitment to respect, preserve and maintain the traditional knowledge, innovations and practices of indigenous and local communities in the territories of the Parties.
3. Access to biological and genetic resources and their derived products shall be conditioned to the prior informed consent of the Party that is the country of origin, in mutually agreed terms. Likewise, access to traditional knowledge of indigenous and local communities associated with such resources shall be conditioned to the prior informed consent of the holders or possessors, as the case may be, of such knowledge, on mutually agreed terms. Both cases shall be subject to the provisions of the national legislation of each Party.
4. The Parties shall promote measures to ensure fair and equitable sharing of benefits arising from the utilization of biological and genetic resources and derived products and traditional knowledge of indigenous and local communities.
5. Each Party shall promote policy, legal and administrative measures to ensure full compliance with the conditions for access to biological and genetic resources of biodiversity.
6. Any intellectual property rights arising from the use of biological and genetic resources and their derivative products, and/or traditional knowledge of indigenous and local communities, of which a Party is the country of origin, shall comply with the specific national and international standards on the matter.
7. The Parties shall require that patent applications developed from biological and genetic resources and/or associated traditional knowledge, of which they are the country of origin, demonstrate legal access to such resources or knowledge, as well as the disclosure of the origin of the accessed resource and/or traditional knowledge, in case the national legislation of the Party so requires.
8. The Parties may, through their competent national authorities, exchange information related to biodiversity and/or traditional knowledge and documented information related to biological and genetic resources and their derivatives, or if applicable, traditional knowledge of their indigenous and local communities, in order to support the evaluation of patents.
9. The Parties agree, at the request of any of them, to collaborate in the provision of public information available to them for the investigation and monitoring of illegal access to genetic resources and/or traditional knowledge, innovations and practices in their territories.
Article 9.6. Copyright and Related Rights
1. The Parties shall recognize existing rights and obligations under the Berne Convention for the Protection of Literary and Artistic Works; the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations; the WIPO Copyright Treaty; and the WIPO Performances and Phonograms Treaty (3).
2. In accordance with the intemational conventions referred to in paragraph 1 and with its national legislation, each Party shall provide adequate and effective protection to authors of literary and artistic works and to performers, producers of phonograms and broadcasting organizations, in their artistic performances, phonograms and broadcasts, respectively.
3. Independently of the author's economic rights, and even after the transfer of these rights, the author shall retain, at least, the right to claim authorship of the work and to object to any distortion, mutilation or other modification thereof, or to any attack upon it, that would be prejudicial to his honor or reputation.
4. The rights recognized to the author in accordance with paragraph 3 shall be maintained after his death, at least until the extinction of his economic rights, and shall be exercised by the persons or institutions to which the national legislation of the country in which protection is claimed recognizes rights.
5. The rights granted under paragraphs 3 and 4 shall be granted, mutatis mutandis, to performers in respect of their live performances or fixed performances.
6. Each Party shall ensure that a broadcasting organization in its territory shall have at least the exclusive right to authorize the following acts: the fixation, reproduction and retransmission of its broadcasts.
7. The Parties may provide in their national legislation limitations and exceptions to the rights established in this Article, only in certain cases that do not conflict with the normal exploitation of the work, nor cause unjustified prejudice to the legitimate interests of the owner of the rights.
Article 9.7. Enforcement
1. Without prejudice to the rights and obligations established under the WTO TRIPS Agreement, in particular Part Ill, the Parties may develop in their national legislation, measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights.
2. The Parties shall adopt procedures that allow the right holder, who has valid reasons to suspect that the importation, exportation, or transit of counterfeit trademark goods or pirated goods infringing copyright (4) is being prepared, to submit to the competent authorities, a request or complaint, according to the national legislation of each Party, in order for the customs authorities to suspend the release of such goods.