2. The Parties shall accord to each other's nationals treatment no less favourable than the treatment they accord to their own nationals. Exemptions from this obligation must be in accordance with the substantive provisions of Articles 3 and 5 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as "the TRIPS Agreement").
3. With regard to the protection of intellectual property, the Parties shall, in accordance with the TRIPS Agreement, in particular Articles 4 and 5 thereof, grant to each other's nationals treatment no less favourable than that accorded to nationals of any third State.
4. The Parties agree, upon request of any Party made to the Joint Committee, and subject to consensus of the Parties, to review the provisions on intellectual property of this Agreement as appropriate, with a view to avoiding or remedying trade distortions caused by actual levels of protection of intellectual property rights, and to promoting intellectual property that facilitates trade and investment relations between the Parties.
Article 7.2. Scope of Intellectual Property
"Intellectual property" refers in particular to copyright, including computer programmes and compilations of data, as well as related rights, trademarks for goods and services, geographical indications, including appellations of origin, industrial designs, patents, plant varieties, layout-designs/topographies of integrated circuits, as well as undisclosed information.
Article 7.3. Co-operation In the Field of Intellectual Property
1. The Parties, recognising the growing importance of intellectual property rights as a factor of social, economic and cultural development, shall enhance their co- operation in this field.
2. The Parties agree, if circumstances permit, to co-operate on activities relating to the identified or to future international conventions on harmonisation, administration and enforcement of intellectual property rights and on activities in international organisations, such as the WTO and the Word Intellectual Property Organization (WIPO), as well as to share experiences and exchange information on relations of the Parties with third countries on matters concerning intellectual property.
3. The Parties, pursuant to paragraph 1, may co-operate in:
(a) programmes for personnel interchange, including for examiners, between the Parties;
(b) the field of information systems on intellectual property;
(c) the promotion of mutual understanding of each Party's policy, activities and experiences in the field of intellectual property; and
(d) the promotion of education on intellectual property and invention awareness.
Chapter 8. Institutional Provisions
Article 8.1. The Joint Committee
1. The Parties hereby establish the Korea-EFTA Joint Committee. It shall be composed of representatives of the Parties, which shall be headed by Ministers or by senior officials delegated by them for this purpose.
2. The Joint Committee shall:
(a) supervise and review the implementation of this Agreement, inter alia by means of a comprehensive review of the application of the provisions of this Agreement, with due regard to any specific reviews contained in this Agreement;
(b) keep under review the possibility of further removal of barriers to trade and other restrictive measures concerning trade between Korea and the EFTA States;
(c) oversee the further development of this Agreement;
(d) supervise the work of all sub-committees and working groups established under this Agreement;
(e) endeavour to resolve disputes that may arise regarding the interpretation or application of this Agreement; and
(f) consider any other matter that may affect the operation of this Agreement.
3. The Joint Committee may decide to set up such sub-committees and working groups as it considers necessary to assist it in accomplishing its tasks. Except where otherwise provided for in this Agreement, the sub-committees and working groups shall work under a mandate established by the Joint Committee.
4. The Joint Committee shall take decisions as provided for in this Agreement, and may make recommendations, by consensus.
5. The Joint Committee shall meet within one year of the entry into force of this Agreement. Thereafter, it shall meet whenever necessary upon mutual agreement but normally every two years. Its meetings shall be chaired jointly by Korea and one of the EFTA States. The Joint Committee shall establish its rules of procedure.
6. Each Party may request at any time, through a notice in writing to the other Parties, that a special meeting of the Joint Committee be held. Such a meeting shall take place within 30 days of receipt of the request, unless the Parties agree otherwise.
7. The Joint Committee may decide to amend the Annexes and Appendices to this Agreement. Subject to paragraph 8, it may set a date for the entry into force of such decisions.
8. If a representative of a Party in the Joint Committee has accepted a decision subject to the fulfilment of constitutional requirements, the decision shall enter into force on the date that the last Party notifies that its internal requirements have been fulfilled, unless the decision itself specifies a later date. The Joint Committee may decide that the decision shall enter into force for those Parties that have fulfilled their internal requirements, provided that Korea is one of those Parties. A Party may apply a decision of the Joint Committee provisionally until it enters into force, subject to the constitutional requirements of this Party.
Article 8.2. Secretariat
1. The Parties hereby designate the following competent organs to serve as their respective secretariats for purposes of this Agreement:
(a) in the case of Korea, the Ministry of Foreign Affairs and Trade; and (b) in the case of the EFTA States, the EFTA Secretariat.
2. Without prejudice to Article 10.7 and unless otherwise agreed by the Parties or stated in this Agreement, all official communications or notifications to or by a Party for purposes of this Agreement shall be made through its secretariat.
Chapter 9. Dispute Settlement
Article 9.1. Scope and Coverage
1. The provisions of this Chapter shall apply with respect to the avoidance or the settlement of any dispute arising from this Agreement, taking into account the modalities set out in Article 4.21 of this Agreement and Article 25 of Annex I.
2. Disputes on the same matter arising under both this Agreement and the WTO Agreement may be settled in either forum at the discretion of the complaining Party. The forum thus selected shall be used to the exclusion of the other.
3. For purposes of this Article, dispute settlement proceedings under the WTO Agreement or this Agreement are deemed to be initiated upon a request for a panel by a Party.
4. Before a Party initiates dispute settlement proceedings under the WTO Agreement against another Party or Parties as regards a matter arising under both this Agreement and the WTO Agreement, it shall notify all the Parties of its intention.
5. The arbitration rules provided for in Articles 9.4 to 9.10 do not apply to Articles 2.7, 2.9, 2.10 and Chapter 5.
Article 9.2. Good Offices, Conciliation or Mediation
1. Good offices, conciliation and mediation are procedures that are undertaken voluntarily if the Parties involved so agree. They may begin at any time and be terminated at any time.
2. Proceedings involving good offices, conciliation and mediation shall be confidential and without prejudice to the Parties' rights in any other proceedings.
Article 9.3. Consultations
1. The Parties shall at all times endeavour to agree on the interpretation and application of this Agreement, and shall make every attempt through co-operation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect its operation.
2. Any one or more of the EFTA States may request in writing consultations with Korea and vice-versa whenever a Party considers that a measure applied by the Party or Parties to which the request is made is inconsistent with this Agreement or that any benefit accruing to it directly or indirectly under this Agreement is impaired or nullified by such measure. Consultations shall take place in the Joint Committee unless the Party or Parties making or receiving the request for consultations disagree.
3. Consultations shall be held within 30 days from the date of receipt of the request for consultations. Consultations on urgent matters, including those on perishable agricultural goods, shall commence within 15 days from the receipt of the request for consultations.
4. The Parties involved in the consultations shall provide sufficient information to enable a full examination of how the measure or other matter might affect the operation of this Agreement and treat any confidential or proprietary information exchanged in the course of consultations in the same manner as the Party providing the information.
5. The consultations shall be confidential and without prejudice to the rights of the Parties involved in any further proceedings.
6. The Parties involved in the consultations shall inform the other Parties of any mutually agreed resolution of the matter.
Article 9.4. Establishment of Arbitration Panel
1. If the matter has not been resolved within 60 days, or 30 days in relation to a matter of urgency, after the date of receipt of the request for consultations, it may be referred to arbitration by one or more of the Parties involved by means of a written request addressed to the Party or Parties complained against. A copy of this request shall also be communicated to all Parties so that each Party may determine whether to participate in the dispute.
2. Where more than one Party requests the establishment of an arbitration panel relating to the same matter, a single arbitration panel shall be established to examine these complaints whenever feasible (2).
3. A request for arbitration shall give the reason for the complaint including the identification of the measure at issue and an indication of the legal basis of the complaint.
Article 9.5. Arbitration Panel
1. The arbitration panel referred to in Article 9.4 shall consist of three members.
2. Each Party to the dispute shall appoint one member of the arbitration panel within 15 days of the receipt of the request under Article 9.4.
3. The Parties to the dispute shall agree on the appointment of the third member within 30 days of the appointment of the second member. The member thus appointed shall chair the arbitration panel.
4. If all three members have not been designated or appointed within 45 days from the date of receipt of the request referred to in Article 9.4, the necessary designations shall be made at the request of any Party to the dispute by the Director-General of the WTO within a further 30 days. Where the designation of the members of the arbitration panel by the Director-General of the WTO is not made within the specified period, the Parties to the dispute shall within the next ten days exchange lists comprising four nominees each who shall not be nationals of either Party. The panel members shall then be appointed in the presence of both Parties by lot from the lists within ten days from the date of exchange of their respective lists. If a Party fails to submit its list of four nominees, the panel members shall be appointed by lot from the list already submitted by the other Party.
5. The chair of the arbitration panel shall not be a national of any of the Parties, nor have his or her usual place of residence in the territory of any of the Parties, nor be employed or previously have been employed by any of the Parties, nor have dealt with the case in any capacity.
6. If a member dies, withdraws or is removed, a replacement shall be selected within 15 days in accordance with the selection procedure followed to select him or her. In such a case, any time period applicable to the arbitration panel proceedings shall be suspended for a period beginning on the date the member dies, withdraws or is removed and ending on the date the replacement is selected.
7. Any person appointed as a member of the arbitration panel shall have expertise or experience in law, international trade, other matters covered by this Agreement or in the resolution of disputes arising under international trade agreements. A member shall be chosen strictly on the basis of objectivity, reliability, sound judgement and independence and shall conduct himself or herself according to these characteristics throughout the course of the arbitration proceedings. If a Party believes that a member is in violation of the bases stated above, the Parties shall consult and if they agree, the member shall be removed and a new member shall be appointed in accordance with this Article, and following the procedure outlined in paragraph 6.
8. The date of establishment of the arbitration panel shall be the date on which the chair is appointed.
Article 9.6. Procedures of the Arbitration Panel
1. Unless the Parties to the dispute agree otherwise, the arbitration panel proceedings shall be conducted in accordance with the Model Rules of Procedure that shall be adopted at the first meeting of the Joint Committee. Pending the adoption of those rules, the arbitration panel shall regulate its own procedures, unless the Parties to the dispute agree otherwise.
2. Notwithstanding paragraph 1, for all arbitration panel proceedings the procedures shall ensure that:
(a) the Parties to the dispute have the right to at least one hearing before the arbitration panel as well as the opportunity to provide initial and rebuttal written submissions;
(b) the Parties to the dispute be invited to all the hearings held by the arbitration panel;
(c) all submissions and comments made to the arbitration panel be available to the Parties to the dispute, subject to any requirements of confidentiality; and
(d) hearings, deliberations, initial report and all written submissions to and communications with the arbitration panel be confidential.
3. Unless the Parties to the dispute otherwise agree within 20 days from the date of delivery of the request for the establishment of the arbitration panel, the terms of reference shall be:
"To examine, in the light of the relevant provisions of this Agreement, the matter referred to in the request for the establishment of an arbitration panel pursuant to Article 9.4 and to make findings of law and fact together with the reasons therefor as well as recommendations, if any, for the resolution of the dispute."
4. At the request of a Party to the dispute or on its own initiative, the arbitration panel may seek scientific information and technical advice from experts as it deems appropriate.
5. The arbitration panel shall make its ruling based on the provisions of this Agreement, applied and interpreted in accordance with the rules of interpretation of public international law.
6. Decisions of the arbitration panel shall be taken by a majority of its members. Any member may furnish separate opinions on matters not unanimously agreed. No arbitration panel may disclose which members are associated with majority or minority opinions.
7. The expenses of the arbitration panel, including the remuneration of its members, shall be borne by the Parties to the dispute in equal shares.
Article 9.7. Withdrawal of Complaint
A complaining Party may withdraw its complaint at any time before the initial report has been issued. Such withdrawal is without prejudice to its right to introduce a new complaint regarding the same issue at a later point in time.
Article 9.8. Initial Report
1. The arbitration panel shall present to the Parties to the dispute an initial report within 90 days from the date of the establishment of the arbitration panel.
2. The arbitration panel shall base its report on the submissions and arguments of the Parties to the dispute and on any scientific information and technical advice obtained pursuant to paragraph 4 of Article 9.6.
3. A Party to the dispute may submit written comments to the arbitration panel on the initial report within 14 days of presentation of the report.
4. In such an event, and after considering the written comments, the arbitration panel, on its own initiative or at the request of a Party to the dispute, may:
(a) request the views of any of the Parties to the dispute; (b) reconsider its report; and/or
(c) make any further examination that it considers appropriate.
Article 9.9. Final Report
1. The arbitration panel shall present to the Parties to the dispute the final report, containing the matters referred to in paragraph 2 of Article 9.8, including any separate opinions on matters not unanimously agreed, within 30 days of presentation of the initial report.
2. Unless the Parties to the dispute decide otherwise, the final report shall be published 15 days after it is presented to them.
Article 9.10. Implementation of Arbitration Panel Reports
1. The final report shall be final and binding on the Parties to the dispute. Each Party to the dispute shall be bound to take the measures involved in carrying out the final report.
2. On receipt of the final report of an arbitration panel, the Parties to the dispute shall agree on:
(a) the means to resolve the dispute, which normally shall conform with the determinations or recommendations, if any, of the arbitration panel; and
(b) the reasonable period of time which may be necessary in order to implement the means to resolve the dispute. If the Parties to the dispute fail to agree, a Party to the dispute may request the original arbitration panel to determine the length of the reasonable period of time, in the light of the particular circumstances of the case. The determination of the arbitration panel shall be presented within 15 days from that request.
3. If, in its final report, the arbitration panel determines that a Party has not conformed with its obligations under this Agreement or that a Party's measure has caused nullification or impairment, the means to resolve the dispute shall be, whenever possible, to eliminate the inconsistency or the nullification or impairment.
4. If the Parties to the dispute are unable to agree on the means to resolve the dispute pursuant to paragraph 2(a) within 30 days of issuance of the final report, or have agreed on the means to resolve the dispute but the Party complained against fails to implement the means within 30 days following the expiration of the reasonable period of time determined in accordance with paragraph 2(b), the Party complained against shall, if so requested by the complaining Party, enter into consultations with a view to agreeing on a mutually acceptable compensation. If no such agreement has been reached within 20 days from the request, the complaining Party shall be entitled to suspend the application of benefits granted under this Agreement that are equivalent to those affected by the measure found to violate this Agreement.
5. In considering the benefits to be suspended, the complaining Party shall first seek to suspend benefits in the same sector or sectors as that affected by the measure that the arbitration panel has found to violate this Agreement. The complaining Party that considers it is not practicable or effective to suspend benefits in the same sector or sectors may suspend benefits in other sectors.
6. The complaining Party shall notify the other Party of the benefits which it intends to suspend no later than 60 days before the date on which the suspension is due to take effect. Within 15 days from that notification, any of the Parties to the dispute may request the original arbitration panel to rule on whether the benefits which the complaining Party intends to suspend are equivalent to those affected by the measure found to violate this Agreement, and whether the proposed suspension is in accordance with paragraphs 4 and 5. The ruling of the arbitration panel shall be given within 45 days from that request. Benefits shall not be suspended until the arbitration panel has issued its ruling.
7. The suspension of benefits shall be temporary and only be applied by the complaining Party until the measure found to violate this Agreement has been withdrawn or amended so as to bring it into conformity with this Agreement, or the Parties to the dispute have reached agreement on a resolution of the dispute.
8. At the request of a Party to the dispute, the original arbitration panel shall rule on the conformity with the final report of any implementing measures adopted after the suspension of benefits and, in light of such ruling, whether the suspension of benefits should be terminated or modified. The ruling of the arbitration panel shall be given within 30 days from the date of that request.
9. The rulings provided for in paragraphs 2 (b), 6 and 8 shall be binding.
Article 9.11. Other Provisions
Any time period mentioned in this Chapter may be modified by mutual agreement of the Parties involved.
Chapter 10. Final Provisions
Article 10.1. Transparency
1. The Parties shall publish their laws, or otherwise make publicly available their laws, regulations, and administrative rulings and judicial decisions of general application as well as their respective international agreements that may affect the operation of this Agreement.
2. The Parties shall promptly respond to specific questions, and provide upon request information to each other, on matters referred to in paragraph 1.
3. Nothing in this Agreement shall require any Party to disclose confidential information, which would impede law enforcement, otherwise be contrary to the public interest or prejudice the legitimate commercial interests of any economic operator.
4. In the case of any inconsistency between the provisions of this Article and provisions relating to transparency in other Chapters, the latter shall prevail to the extent of the inconsistency.
Article 10.2. Annexes and Appendices
The Annexes and Appendices to this Agreement form an integral part thereof.
Article 10.3. Amendments
1. Amendments to this Agreement other than those referred to in paragraph 7 of Article 8.1 shall, after approval by the Joint Committee, be submitted to the Parties for ratification, acceptance or approval, in accordance with each Party's constitutional requirements.
2. Unless otherwise agreed by the Parties, amendments shall enter into force on the first day of the second month following the deposit of the last instrument of ratification, acceptance or approval.
3. The text of the amendments as well as the instruments of ratification, acceptance or approval shall be deposited with the Depositary.
Article 10.4. Accession
1. Any State, Member of the European Free Trade Association, may accede to this Agreement, provided that the Joint Committee decides to approve its accession, on terms and conditions to be negotiated between the acceding State and the existing Parties. The instrument of accession shall be deposited with the Depositary.
2. In relation to an acceding State, this Agreement shall enter into force on the first day of the second month following the deposit of its instrument of accession or the approval of the terms of accession by the existing Parties, whichever is later.
Article 10.5. Withdrawal and Termination
1 Any Party may withdraw from this Agreement by means of a written notification to the Depositary. The withdrawal shall take effect six months after the date on which the notification is received by the Depositary.
2. If Korea withdraws, this Agreement shall expire on the date specified in paragraph 1.
3. In case any EFTA State withdraws from the Convention establishing the European Free Trade Association, this EFTA State shall withdraw from this Agreement in accordance with paragraph 1.
Article 10.6. Entry Into Force
1. This Agreement is subject to ratification, acceptance or approval. The instruments of ratification, acceptance or approval shall be deposited with the Depositary.
2. This Agreement shall enter into force on 1 July 2006 in relation to those Signatory States which by then have ratified this Agreement, provided they have deposited their instruments of ratification, acceptance or approval with the Depositary at least one month before the entry into force, and provided that Korea is among the States that have deposited their instruments.
3. In case this Agreement does not enter into force on 1 July 2006, it shall enter into force on the first day of the second month following the latter date on which Korea and at least one EFTA State have deposited their instruments of ratification, acceptance, or approval with the Depositary.
4. In relation to an EFTA State depositing its instrument of ratification, acceptance or approval after this Agreement has entered into force, the Agreement shall enter into force on the first day of the second month following the deposit of its instrument.
5. If its constitutional requirements permit, any EFTA State may apply this Agreement provisionally. Provisional application of this Agreement under this paragraph shall be notified to the Depositary.
Article 10.7. Depositary
The Government of Norway shall act as Depositary.
Conclusion
IN WITNESS WHEREOF the undersigned, being duly authorized thereto, have signed this Agreement.
Done at Hong Kong, this 15th day of December 2005, in a single original in the English language, which shall be deposited with the Government of Norway.
The Depositary shall transmit certified copies to all Signatory States.
For the Republic of Iceland
For the Republic of Korea
For the Principality of Liechtenstein
For the Kingdom of Norway
For the Swiss Confederation