4. In no case may the importing Party apply the measures provided for in paragraph 2 without prior written notice to the other Party and without consultations. For this purpose, all the notification and procedural requirements provided for in this Chapter shall be complied with.
5. The Party intending to apply a comprehensive safeguard measure shall grant the Party affected by that measure mutually agreed compensation in the form of concessions having trade effects equivalent to the impact of the safeguard measure.
6. The compensation referred to in paragraph 5 shall be determined at the stage of prior consultations referred to in paragraph 4.
7. If the Parties are unable to agree on the compensation, the Party proposing to take the measure shall have the authority to do so and the affected Party may impose measures that have trade effects equivalent to those of the measure taken.
Article 7-05. Procedure.
1. Each Party shall establish clear and strict procedures for the adoption and application of safeguard measures in accordance with the provisions of this Chapter.
2. In order to determine the appropriateness of the application of a safeguard measure, the competent authority of the importing Party shall conduct the relevant investigation.
3. The Party that decides to initiate a procedure to adopt safeguard measures shall publish the initiation thereof through the appropriate official channels and shall notify the exporting Party in writing on the day following publication.
4. For the purpose of determining serious injury or threat thereof, the competent authorities shall evaluate all factors of an objective and quantifiable nature having a bearing on the affected domestic industry, in particular the rate and amount of the increase in imports of the good in question, in absolute and relative terms, the share of the domestic market absorbed by the increase in imports, changes in the level of sales, domestic prices, production, productivity, utilization of installed capacity, market share, profits, losses and employment.
5. In order to determine the appropriateness of the safeguard measures, a direct causal relationship shall also be demonstrated between the increase in imports of the product concerned and the serious injury or threat of serious injury to the domestic industry.
6. If factors other than increased imports from another Party are injuring or threatening to injure a domestic industry at the same time, such injury or threat of injury shall not be attributed to the said imports.
7. If as a result of this investigation the competent authority determines, on the basis of objective evidence, that the conditions provided for in this Chapter are met, the importing Party may enter into consultations with the other Party.
8. The consultation procedure shall not oblige the Parties to disclose information that has been provided on a confidential basis, the disclosure of which could impede compliance with the laws of the Party governing the matter or harm commercial interests. Notwithstanding the foregoing, the importing Party that intends to apply the safeguard measure shall provide the other Party with a non-confidential summary of the information that is confidential.
9. The period of prior consultations shall begin on the day following receipt by the exporting Party of the notification of the request for the initiation of consultations. This period shall be 60 days, unless the Parties agree on a shorter period.
10. The notification referred to in paragraph 9 shall be made through the competent authority and shall contain sufficient background information to support the application of the measures, including:
(a) the names and available addresses of the domestic producers of identical, similar or directly competitive goods representative of the domestic production, their share in the domestic production of that good and the reasons that lead them to claim that they are representative of that sector;
(b) a clear and complete description of the good subject to the procedure, the tariff subheading under which it is classified and the tariff treatment in force, as well as the description of the identical, similar or direct competitor good;
(c) import data for each of the three most recent years that provide the basis that such good is being imported in increasing quantities, either in absolute terms or relative to domestic production;
(d) data on the total domestic production of the identical, similar or directly competitive good for the last three years;
(e) data demonstrating serious injury caused or threat of serious injury that may be caused by imports to the sector in question in accordance with the data referred to in subparagraphs c) and d);
(f) an enumeration and description of the alleged causes of the serious injury or threat of serious injury, based on the information required under subparagraphs a) to d) and a summary of the basis for alleging that the increase in imports of that good in relative or absolute terms of the domestic production is the cause thereof,
(g) the criteria and objective information demonstrating that the conditions set out in this Chapter for the application of a global measure to the other Party are met, where applicable; and
(h) information on the tariff measures to be adopted and their duration.
11. The measures provided for in this Chapter may be adopted only after the prior consultation period has been concluded.
12. During the period of prior consultations, the exporting Party shall make any observations it deems pertinent, in particular on the appropriateness of the proposed measures.
13. If the importing Party determines that the reasons that gave rise to the application of the safeguard measures still exist, it shall notify the competent authorities of the other Party of its intention to extend them, at least 60 days prior to the expiration of the validity of such measures, and shall provide the information supporting this decision, including evidence that the reasons that led to the adoption of the safeguard measure still exist. Notification, prior consultations on the extension and the respective compensation shall be carried out in accordance with the terms provided in this Chapter.
Chapter VIII. Unfair International Trade Practices
Article 8-01. Definitions.
For the purposes of this chapter, the following definitions shall apply:
investigation: an investigation procedure on unfair international trade practices;
interested party: the complaining producers, importers, exporters of the goods subject to investigation, as well as any national or foreign person having a direct interest in the investigation in question, and includes the government of the Party whose goods are subject to an investigation on subsidies;
final determination: the determination of the competent authority that determines whether or not the imposition of definitive countervailing duties is appropriate;
initial determination: the determination of the competent authority formally declaring the initiation of an investigation;
preliminary resolution: the resolution of the competent authority that determines the continuation of an investigation and, if applicable, whether or not the imposition of provisional countervailing duties is appropriate; preliminary resolution: the resolution of the competent authority that determines the continuation of an investigation and, if applicable, whether or not the imposition of provisional countervailing duties is appropriate;
direct export subsidies: those classified as prohibited subsidies by the Agreement on Subsidies and Countervailing Measures of GATT 1994.
Article 8-02. General Principle.
The Parties reject all unfair international trade practices and recognize the need to eliminate export subsidies and other trade-distorting domestic policies.
Article 8-03. Direct Export Subsidies.
1. Neither Party shall grant new direct subsidies on the export of goods to the territory of the other Party.
2. Upon entry into force of this Agreement, each Party shall eliminate all direct subsidies on the export of goods to the territory of the other Party.
Article 8-04. Principles for the Application of Domestic Legislation.
1. The Parties shall apply their legislation on unfair international trade practices in a manner consistent with the provisions of this Chapter and with the provisions and procedures set out in the Agreement on Implementation of Article VI of the GATT, and in the Agreement on Implementation of Articles VI, XVI and XXIII of the GATT.
2. The Parties shall conduct investigations through the competent national public agencies, agencies or entities, and shall not apply in their bilateral relations any international instrument on this matter negotiated with third countries that involves asymmetrical, non-reciprocal treatment and that departs from the provisions of this Chapter.
Article 8-05. Publication of Resolutions.
The Parties shall publish in their official organs of diffusion the resolutions of initiation, preliminary and final, those that declare the investigation concluded for reasons of commitments of the foreign exporter or, as the case may be, of the government of the exporting Party, or for the holding of conciliatory hearings, as well as the resolutions by which the complaints are rejected or the withdrawals of the complainants are accepted.
Article 8-06. Notifications and Time Limits.
1. The Parties shall ensure that during the investigation and, prior to the application of provisional and definitive countervailing duties, the respective authorities shall notify in writing directly, in a timely manner and within reasonable time limits, the interested parties known to them and the competent authority of the other Party of the determinations on the matter, so that those affected by the application of such duties may present arguments and evidence in their defense.
2. Notifications to the denounced exporters shall be made on the working day following the date of publication of the initial resolution and shall contain the following information:
(a) the deadlines for the submission of reports, declarations and other documents;
(b) the place where the complaint and other documents submitted during the investigation may be inspected; and
(c) the name, address and telephone number of the office where additional information may be obtained.
3. With the notification referred to in paragraph 1, a copy of the respective publication of the official organ of diffusion of the Party conducting the investigation shall be sent, as well as a copy of the written complaint, and of the public version of its annexes.
4. The competent authorities of each Party shall grant the interested parties a minimum period of 30 working days to respond, counted from the publication of the initial resolution, in order for them to appear and state what they deem appropriate. The same period shall be granted for the same purposes to the interested parties, counted from the publication of the preliminary determination.
5. The initiating, preliminary or final resolutions shall contain, where appropriate, at least the following:
(a) the name of the complainant;
(b) the indication of the imported good subject to the investigation and its tariff classification;
(c) the elements and evidence used for the determination of the existence of dumping or subsidy, injury or threat of injury and their causal relationship;
(d) the factual and legal considerations that led the competent authority to initiate an investigation or to impose a countervailing duty; and
(e) any legal argumentation, data, fact or circumstance contained in the administrative record in which the determination in question is based and motivated.
Article 8-07. Rights and Obligations of the Interested Parties.
The Parties shall ensure that the interested parties have the same rights and obligations in an investigation.
Article 8-08. Conciliation Hearing.
At the formal initiation of any investigation, the interested parties may request the competent authorities to hold a conciliation hearing. In this hearing, formulas for solution and conclusion of the investigation may be proposed, which, if appropriate, shall be sanctioned by the competent authority itself and incorporated in the respective resolution, which shall have the character of a final resolution. This resolution shall be notified to the interested parties and published in the official organ of diffusion of the investigating Party.
Article 8-09. Preliminary Determination.
1. Within a period of 130 working days, but in no case earlier than 45 working days, counted from the date of publication of the initial determination, the competent authority shall issue a preliminary determination in which it determines that
(a) that the investigation is terminated, in which case, it shall have the character of a final resolution;
b) that it is appropriate to continue with the investigation and the amount of the provisional antidumping duties; or
c) that it is appropriate to continue with the investigation without the imposition of provisional countervailing duties.
2. When the preliminary determination determines the imposition of a provisional countervailing duty, it shall include, in addition to the provisions of paragraph 5 of Article 8-06, the margin of dumping or subsidy and its components, a description of the injury or threat of injury and the methodology followed to determine them.
Article 8-10. Clarifications.
Once a provisional or definitive antidumping duty has been imposed, the interested parties may request the competent authority to determine whether a particular good is subject to the antidumping duty imposed or to clarify any aspect of the corresponding determination.
Article 8-11. Review of Duties.
In the event of a change of circumstances, the final antidumping duties may be reviewed by the competent authority, annually at the request of a party, and at any time if they are ex officio. Likewise, any producer, importer or exporter who, without having participated in the investigation, proves his direct interest, may request the review of an antidumping duty.
2. The review may have as an effect the ratification, modification or elimination of the corresponding duties. For this purpose, the corresponding substantive and procedural provisions of this Chapter shall be observed.
Article 8-12. Automatic Elimination of Definitive Countervailing Duties.
Final antidumping duties shall be automatically eliminated when, after five years from their effective date or from the date of their last review, they have not been reviewed pursuant to Article 8-10.
Article 8-13. Dispatch of Copies.
Each interested party shall send copies of each of the reports, documents and evidence submitted to the investigating authority in the course of the investigation, excluding confidential information, to the other interested parties in a timely manner.
Article 8-14. Information Gathering.
1. The investigating authority of the importing Party, upon request of the interested parties, shall conduct information meetings, for the purpose of making known all relevant information on the content of the preliminary and final determinations.
2. With respect to preliminary determinations, the request referred to in paragraph 1 may be submitted at any time during the investigation. In the case of final determinations, the request for information gathering shall be submitted within five days of their publication in the official organ of dissemination of the Party. In both cases, the competent authority shall conduct the information gathering within 15 days of the submission of the request.
3. At the information meetings referred to in paragraphs 1 and 2, the interested parties shall have the right to review the technical reports, methodology, calculation sheets and any other element on which the corresponding resolution has been based, with the exception of confidential information.
Article 8-15. Public Hearings.
1. The competent authority shall hold, ex officio or at the request of a Party, a public hearing in which the interested parties may appear and question their counterparts regarding the information or means of evidence that the investigating authority deems appropriate.
2. The competent authority shall give 15 working days notice of the public hearing.
3. The competent authority shall give the interested parties the opportunity to present arguments after the public hearing, even if the period for the presentation of evidence has ended. The pleadings shall consist of the presentation in writing of conclusions regarding the information and arguments provided in the investigation.
Article 8-16. Access to Confidential Information.
The competent authorities of each Party shall, in accordance with its legislation, allow access to confidential information, where reciprocal conditions exist in the other Party with respect to access to such information.
Article 8-17. Access to Non-confidential Information.
The competent authority of each Party shall provide interested parties with timely access to non-confidential information contained in the administrative records of any other investigation, within a period not to exceed 60 days from the publication of the final determination of such investigations, in accordance with the provisions of its legal system. If other administrative or judicial remedies have been filed against the final determination, the Parties shall provide such access to non-confidential information in accordance with their legal system.
Article 8-18. Exchange of Information Through the Commission.
In order to expedite the investigations that are presented on unfair international trade practices, an exchange of information shall be carried out through the Commission.
Article 8-19. Refund of Amounts Paid In Excess.
If a final determination determines an antidumping duty lower than the provisional antidumping duty, the competent authority of the importing Party shall refund the amounts paid in excess.
Article 8-20. Dispute Settlement.
Where the final decision of an arbitral tribunal, rendered pursuant to Chapter XIX (Dispute Settlement), declares that the application of an antidumping duty by a Party is inconsistent with any provision of this Chapter, the importing Party shall cease to apply or shall adjust the antidumping duty in question to the respective goods of the complaining Party.
Chapter IX. General Principles on Trade In Services
Article 9-01. Definitions.
For the purposes of this chapter, the following definitions shall be understood as:
professional practice: the customary performance of any professional act or the rendering of any service proper to each profession that requires governmental authorization;
enterprise of a Party: an enterprise constituted or organized under the law of a Party, including branches located in the territory of a Party that carries out economic activities in that territory;
service supplier of a Party: a person of a Party that provides or intends to provide a service; quantitative restriction: a non-discriminatory measure imposing limitations on:
(a) the number of service suppliers, whether through a quota, monopoly or economic necessity test or by any other quantitative means; or
(b) the operations of any service supplier, whether through a quota or economic necessity test, or by any other quantitative means;
professional services: services which, for their supply, require higher secondary education, specialized higher education, or equivalent training or experience and the exercise of which is authorized or restricted by a Party, but does not include services supplied by persons engaged in a trade or by merchant ship or aircraft crews.
Article 9-02. Scope of Application.
1. This Chapter applies to measures that a Party adopts or maintains on trade in services conducted by service suppliers of the other Party, including those relating to:
(a) the production, distribution, marketing, marketing, sale and supply of a service;
(b) the purchase, use of or payment for a service;
(c) access to and use of distribution and transportation systems related to the supply of a service;
(d) access to and use of public telecommunications networks and services;
(e) the presence, in its territory, of a service supplier of the other Party; and
(f) the provision of a bond or other form of financial security as a condition for the supply of a service.
2. This Chapter does not apply to:
(a) domestic or international air transport services, with and without a fixed itinerary, as well as ancillary activities in support of air services, except:
(i) aircraft repair and maintenance services during the period when an aircraft is removed from service;
(ii) specialized air services; and
(iii) computerized reservation systems;
(b) financial services;
(c) subsidies or grants provided by a Party or by a State enterprise, including loans, guarantees and insurance supported by governmental entities; or
(d) government services or functions such as law enforcement, social rehabilitation services, income insurance, social security or insurance, social welfare, public education, public training, health and child care.
3. For the purposes of this chapter, any reference to federal or central and state or departmental governments includes non-governmental bodies exercising regulatory, administrative or other governmental powers delegated to them by those governments.
4. For purposes of this Agreement, trade in services means the supply of a service:
(a) from the territory of a Party into the territory of the other Party;
(b) in the territory of a Party to a consumer of the other Party;
(c) through the presence of service suppliers of a Party in the territory of the other Party;
(d) by natural persons of a Party in the territory of the other Party.
5. Nothing in this Chapter shall be construed to:
(a) to impose any obligation on a Party with respect to a national of the other Party who seeks to enter its labor market or who has permanent employment in its territory, or to confer any right on such a national, with respect to such access or employment; or
(b) impose any obligation or right on a Party with respect to government procurement by another Party or state enterprise.
Article 9-03. National Treatment.
Each Party shall accord to services and service suppliers of the other Party treatment no less favorable than that accorded, in like circumstances, to its services and service suppliers.
Article 9-04. Most-Favored-Nation Treatment.
1. Each Party shall accord to services and service suppliers of the other Party treatment no less favorable than that accorded, in like circumstances, to services and service suppliers of the other Party or of any non-Party.
2. The provisions of this Chapter shall not be construed to prevent a Party from conferring or granting advantages to adjacent countries for the purpose of facilitating trade in services that are produced and consumed locally in contiguous border areas.
Article 9-05. Local Presence.
1. No Party shall require a service supplier of the other Party to establish or maintain a representative office or other business, or to reside in its territory, as a condition for the supply of a service.
2. Notwithstanding paragraph 1, a service supplier of a Party that chooses to establish itself in the territory of the other Party shall comply with the laws and regulations of that Party.
Article 9-06. Consolidation of Measures.
1. No Party shall increase the degree of non-conformity of its measures upon entry into force of this Agreement with respect to Articles 9-03 through 9-05. No amendment of any such measure shall diminish the degree of conformity of such measure as it was in effect immediately prior to the amendment.
2. Within one year of the entry into force of this Agreement, the Parties shall list in Annex 1 to this Article the measures referred to in paragraph 1.
3. The provisions of Articles 9-03 through 9-05 shall not apply to any non-conforming measure adopted or maintained by a Party with respect to the activities listed in Annex 2 to this Article at the time of signature of this Agreement. After a period of two years following the entry into force of this Agreement, any measure adopted by a Party may not be more restrictive than those existing at the end of this Agreement. The Parties, in adopting or maintaining such non-conforming measures, shall seek to achieve an overall balance in their obligations.
4. For state and departmental measures inconsistent with Articles 9-03 to 9-05, the period for listing them in Annex 1 to this Article shall not exceed two years from the date of entry into force of this Agreement.
5. The Parties are not required to register local or municipal measures.
Article 9-07. Quantitative Restrictions.
1. The Parties shall endeavor to negotiate, at least every two years, the liberalization or elimination of quantitative restrictions existing at the time of entry into force of this Agreement or those adopted subsequently at the federal or central and state or departmental levels.
2. Within one year of the entry into force of this Agreement, the Parties shall inscribe in the Annex to this Article the quantitative restrictions referred to in paragraph 1.
3. Each Party shall notify the other Party of any quantitative restrictions, other than those at the local or municipal government level, that it adopts after the entry into force of this Agreement, and shall inscribe the restriction in the Annex to this Article.
Article 9-08. Future Liberalization.
Through future negotiations to be convened by the Commission, the Parties shall deepen the liberalization achieved in the different services sectors, with a view to achieving the elimination of the measures inscribed in Annexes 1 and 2 to Article 9-06 in accordance with paragraphs 2 to 4 of that Article for an overall balance in commitments.