(a) would impede law enforcement;
(b) might prejudice fair competition between suppliers;
(c) would prejudice the legitimate commercial interests of particular persons,
including the protection of intellectual property; or
(d) would otherwise be contrary to the public interest.
Article 7.17. Domestic Review Procedures for Supplier Challenges
1. In the event of a complaint by a supplier of a Party regarding an alleged breach of this Chapter in the context of covered procurement, each Party shall encourage suppliers to seek clarification from its entities through consultations with a view to facilitating the resolution of any such complaints.
2. Each Party shall provide a timely, effective, transparent and non-discriminatory administrative or judicial review procedure according to the due process principle through which a supplier may challenge alleged breaches of this Chapter arising in the context of covered procurements in which the supplier has, or has had, an interest.
3. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, which in no case shall be less than ten days from the time when the basis of the challenge became known or reasonably should have become known to the supplier.
4. Each Party shall establish or designate at least one impartial administrative or judicial authority that is independent of its procuring entities to receive and review a challenge by a supplier arising in the context of a covered procurement, and to make appropriate findings and recommendations.
5. Where a body other than an authority referred to in paragraph 4 initially reviews a challenge, the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority that is independent of the procuring entity whose procurement is the subject of the challenge.
6. A review body that is not a court shall either be subject to judicial review or have procedures that provide that:
(a) the procuring entity shall respond in writing to the challenge and disclose all relevant documents to the review body;
(b) the participants to the proceedings ("participants") shall have the right to be heard prior to a decision of the review body being made on the challenge;
(c) the participants shall have the right to be represented and accompanied; (d) the participants shall have access to all proceedings;
(e) the participants shall have the right to request that the proceedings take place in public and that witnesses may be presented; and
(f) decisions or recommendations relating to supplier challenges shall be provided, in a timely fashion, in writing, with an explanation of the basis for each decision or recommendation.
7. Each Party shall adopt or maintain procedures that:
(a) provide for rapid interim measures to preserve the supplier's opportunity to participate in the procurement. Such interim measures may result in suspension of the procurement process. The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether such measures should be applied. Just cause for not acting shall be provided in writing; and
(b) provide for, where a review body has determined that there has been a breach of this Chapter or, where the supplier does not have a right to challenge directly a breach of this Chapter under the domestic law of a Party, a failure by a procuring entity to comply with a Party's measures implementing this Chapter, corrective action or compensation for the loss or damages suffered, which may be limited to either the costs for the preparation of the tender or the costs relating to the challenge, or both.
Article 7.18. Modifications and Rectifications to Coverage
1. A Party may make rectifications of a purely formal nature to its coverage under this Chapter, or minor amendments to its schedules in Annex XIX (Covered Entities), provided that it notifies the other Parties in writing and no Party objects in writing within 30 days of the notification. A Party that makes such a rectification or minor amendment need not provide compensatory adjustments to the other Parties.
2. A Party may otherwise modify its coverage under this Chapter provided that:
(a) it notifies the other Parties in writing and offers at the same time acceptable compensatory adjustments to maintain a level of coverage comparable to that existing prior to the modification, except where provided for in paragraph 3; and
(b) no Party objects in writing within 30 days of the notification.
3. A Party need not provide compensatory adjustments in those circumstances where the Parties agree that the proposed modification covers a procuring entity over which a Party has effectively eliminated its control or influence. Where a Party objects to the assertion that such government control or influence has been effectively eliminated, the objecting Party may request further information or consultations with a view to clarifying the nature of any government control or influence and reaching agreement on the procuring entity's continued coverage under this Chapter.
Article 7.19. Small and Medium Sized Enterprises Participation
1. The Parties agree on the importance of the participation of small and medium sized enterprises (hereinafter referred to as “SMEs”) in government procurement. The Parties also recognise the importance of business alliances between suppliers of each Party, and in particular of SMEs.
2. The Parties agree to work jointly towards exchanging information and facilitating SMEs access to government procurement procedures, methods and contracting requirements, focused on SMEs special needs.
Article 7.20. Co-operation
1. The Parties recognise the importance of co-operation with a view to achieving a better understanding of their respective government procurement systems, as well as a better access to their respective markets, in particular for small business suppliers.
2. According to Chapter 10 (Co-operation) the Parties shall endeavour to co- operate in matters such as:
(a) development and use of electronic communications in government procurement systems;
(b) exchange of experiences and information, such as _ regulatory frameworks, best practices and statistics.
Article 7.21. Further Negotiations In
In case Colombia or any EFTA State offers in the future, a non-party, additional advantages with regard to its respective government procurement market access coverage agreed under this Chapter, it shall agree, upon request of any Party, to enter into negotiations with a view to extending coverage under this Chapter on a reciprocal basis.
Chapter 8. COMPETITION POLICY
Article 8.1. Objectives
1. The Parties recognise that anti-competitive practices have the potential to undermine the benefits of liberalisation arising from this Agreement. These practices are incompatible with the proper functioning of this Agreement, insofar as they may affect trade between Colombia and an EFTA State.
2. The Parties undertake to apply their respective competition laws with a view to proscribing such practices and to co-operate in matters covered by this Chapter. This co-operation includes notification, exchange of information, technical assistance and consultation.
Article 8.2. Anti-competitive Practices
1. For the purposes of this Chapter, "anti-competitive practices" refer to:
(a) horizontal or vertical agreements, concerted practices or arrangements between enterprises, which have as their object or effect the prevention, restriction or distortion of competition; and
(b) the abuse by one or more enterprises of a dominant position in a market.
2. The enforcement policy of the Parties' national authorities shall be consistent with the principles of transparency, non-discrimination and procedural fairness.
3. When applicable, Colombia may implement its obligations under this Article through the Andean Community competition laws and the Andean enforcement authority. Rights and obligations under this Chapter will only apply between Colombia and the EFTA States.
Article 8.3. Co-operation
1. The Parties shall make best efforts to co-operate, subject to their national laws and through their competent authorities, on issues concerning competition law enforcement.
2. Each Party shall notify another Party of competition enforcement activities that may affect important interests of the other Party. Notifications shall be sufficiently detailed to enable the notified Party to make an initial evaluation of the effect of the enforcement activity within its territory.
3. Each Party should, in accordance with its laws, take into consideration the important interests of the other Parties in the course of its enforcement activities on anticompetitive practices. If a Party considers that an anticompetitive practice may adversely affect another Party's important interests, it may transmit its views on the matter to such other Party through its competent authority. Without prejudice to any action under its competition laws and to its full freedom of ultimate decision, the Party so addressed should give appropriate consideration to the views expressed by the requesting Party.
4. If a Party considers that an anticompetitive practice carried out within the territory of another Party has a substantially adverse effect within its territory or on trade relations between the Parties, it may request that the other Party initiate appropriate enforcement activities. The request shall be as specific as possible about the nature and the effect of the anticompetitive practice. The requested Party shall consider whether to initiate an enforcement activity with respect to the anticompetitive practice identified in the request, and shall advise the requesting Party of its decision and of the outcome of such activity.
5. The Parties are encouraged to exchange information, including information that is not publicly available, provided that this does not affect any ongoing investigation. Any exchange of information shall be subject to the rules and standards of confidentiality applicable in the territory of each Party. No Party shall be required to provide information when this is contrary to its laws regarding disclosure of information. Each Party shall maintain the confidentiality of any information provided to it subject to the limitations that the submitting Party requests for the use of such information.
6. To further strengthen co-operation, the Parties may sign co-operation agreements.
Article 8.4. Consultations
To foster understanding between the Parties, or to address any matter arising under this Chapter, and without prejudice to the autonomy of each Party to develop, maintain and enforce its competition policy and legislation, a Party may request consultations within the Joint Committee. This request shall indicate the reasons for the consultations. Consultations shall be held promptly with a view to reaching a conclusion consistent with the objectives set forth in this Chapter. The Parties concerned shall give to the Joint Committee all the support and information needed, subject to the criteria and standards set out in paragraph 5 of Article 8.3 (Co-operation).
Article 8.5. State Enterprises and Designated Monopolies
1. Nothing in this Chapter shall be construed to prevent a Party from establishing or maintaining a state enterprise and/or designated monopolies.
2. The Parties shall ensure that state enterprises and designated monopolies do not adopt or maintain anti-competitive practices affecting trade between the Parties, insofar as the application of this provision does not obstruct the performance, in law or in fact, of the particular public tasks assigned to them.
3. This Article does not apply to government procurement.
Article 8.6. Dispute Settlement
No Party may have recourse to dispute settlement under this Agreement for any matter arising under this Chapter.
Chapter 9. TRANSPARENCY
Article 9.1. Publication and Disclosure of Information
1. Each Party shall ensure that its laws, regulations, administrative rulings of general application and their respective international agreements, which may affect the operation of this Agreement, are published or otherwise made publicly available in such a manner as to enable persons and other interested parties to become acquainted with them.
2. To the extent possible, the Parties shall publish or otherwise make available judicial decisions that may affect the operation of this Agreement.
3. The Parties shall promptly respond to specific questions and provide, upon request, information to each other on matters referred to in paragraph 1 and 2.
4. Nothing in this Agreement shall require any Party to disclose confidential information, which would impede law enforcement, or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of any economic operator.
5. Where a Party providing information to another Party in accordance with this Agreement designates the information as confidential, the other Party shall maintain the confidentiality of the information. 6. In 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 9.2. Notifications
1. Unless otherwise provided for, a notification to a Party shall be deemed received when it has been delivered to and receipt has been confirmed by the responsible authority of that Party.
2. Each Party shall designate an authority responsible for receiving notifications and shall communicate such designation to the other Parties within 90 days following the entry into force of this Agreement.
Chapter 10. CO-OPERATION
Article 10.1. Scope and Objectives
1. The Parties shall decide to foster co-operation that allows support of trade capacity building (hereinafter referred to as "TCB") initiatives in order to expand and improve the benefits of this Agreement, on mutually agreed terms, in accordance with national strategies and policy objectives
2. The co-operation under this Chapter shall pursue the following objectives:
(a) strengthening and developing the existing relations with regard to TCB between the Parties;
(b) enhancing and creating new trade and investment opportunities, fostering competitiveness and innovation; and
(c) implementing this Agreement and optimising its results, in order to provide an impulse for economic growth and development and to contribute to the reduction of poverty.
Article 10.2. Methods and Means
1. The Parties shall co-operate with the objective of identifying and employing the most effective methods and means for the implementation of this Chapter. To this end they shall coordinate efforts with relevant international organisations and develop, where applicable, synergies with other forms of bilateral co-operation between the Parties.
2. Co-operation under this Chapter shall be carried out either through EFTA activities, bilaterally or through a combination of the two.
3. The Parties will use, among others, the following instruments for the implementation of this Chapter:
(a) exchange of information and experience;
(b) joint identification, development and implementation of projects and innovative activities of co-operation, including seminars and workshops; and
(c) technical and administrative co-operation.
4. The Parties may initiate and implement projects and activities related to TCB with the participation of national and international experts and institutions.
Article 10.3. Joint Committee and Contact Points
1. For the implementation of this Chapter, the following contact points are designated:
(a) for the EFTA-States: the EFTA Secretariat; and
(b) for Colombia: the Ministry of Trade, Industry and Tourism
2. The contact points shall be responsible for the channelling of the project proposals. In addition they are responsible for managing and developing of EFTA co- operation projects and are the links to the Joint Committee. For this purpose they shall establish rules and procedures in order to facilitate this work.
3. For co-operation on a bilateral basis taking place under the present Chapter, EFTA States providing such co-operation shall designate a Contact point.
4. The Joint Committee shall periodically review the implementation of this Chapter and act as a co-ordinating body as appropriate.
Chapter 11. ADMINISTRATION OF THE AGREEMENT
Article 11.1. Joint Committee
1. The Parties hereby establish the Joint Committee Colombia-EFTA comprising representatives of each Party. The Parties shall be represented by cabinet-level representatives or senior officials delegated by them for this purpose.
2. The Joint Committee shall:
(a) supervise the fulfillment and correct application of the provisions of this Agreement;
(b) evaluate the achieved results in the application of this Agreement; oversee the further elaboration of this Agreement including the possibility of removing remaining barriers to trade and other restrictive measures concerning commerce between Colombia and the EFTA States;
(c) supervise the work of all sub-committees and working groups established pursuant to this Agreement and recommend appropriate actions to them;
(d) establish its own rules of procedure;
(e) upon request of any Party, provide its opinion regarding the interpretation or application of this Agreement;
(f) establish the amount of remuneration and expenses that will be paid to panelists;
(g) prepare and adopt the Model Rules of Procedure for panels which shall include the standards of conduct for panelists; and
(h) consider any other matter that may affect the operation of this Agreement or is entrusted to it by the Parties.
3. The Joint Committee may:
(a) set up sub-committees and working groups as it considers necessary to assist it in accomplishing its tasks and delegate responsibilities to them. Except where specifically provided for in this Agreement, sub- committees and working groups shall work under a mandate established by the Joint Committee;
(b) decide to amend the tariff-elimination schedules in Annex II (Excluded Producst), [IV (Fish and Other Marine Products), VII (Dismantling of Import Duties for Industrial Products), specific rules of origin in Annex V (Rules of Origin and Mutual Administrative Co-operation in Customs Matters) and the list of entities in Appendices 1 through 3 to Annex XX (General Notes);
(c) except as otherwise provided for in this Article, consider and propose any amendments to the rights and obligations under this Agreement, subject to the fulfillment of the internal legal requirements of each Party; and
(d) convene the Parties for future negotiations to examine deepening the already reached liberalisation in the different sectors covered by this Agreement.
4. The Joint Committee shall meet whenever necessary but normally every two years in regular session and in special session by written request of any Party to the other Parties. Special sessions shall take place within 30 days of receipt of the last request, unless the Parties agree otherwise.
5. Unless otherwise agreed by the Parties, sessions of the Joint Committee shall be held alternately in Bogota and Geneva or by any technological means available. Such sessions shall be chaired jointly by Colombia and one of the EFTA States.
6. The Joint Committee may take decisions as provided for in this Agreement and on all other matters it may make recommendations.
7. The Joint Committee shall take decisions and make recommendations by consensus.
Article 11.2. Agreement Coordinators and Contact Points
1. Each Party shall designate an Agreement Coordinator and communicate such designation to the other Parties within 90 days following the entry into force of this Agreement.
2. Unless otherwise specified in this Agreement, the Agreement Coordinators shall: (a) work jointly to develop agendas, make other preparations for Joint Committee meetings and follow up on Joint Committee decisions as appropriate;
(b) act as a contact point to facilitate communications between the Parties on any matter covered by this Agreement;
(c) on the request of a Party, identify the office or official responsible for a given matter and assist in facilitating communication as necessary; and
(d) address any other matter entrusted to it by the Joint Committee.
3. Each Party shall be responsible for the operation and expenses of its designated Agreement Coordinator.
Chapter 12. DISPUTE SETTLEMENT
Article 12.1. Co-operation
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, consultations or other means to reach a mutually satisfactory resolution of any matter that might affect its operation.
Article 12.2. Scope of Application
Except as otherwise provided in this Agreement, the dispute settlement provisions of this Chapter shall apply with respect to the settlement of all disputes between the Parties regarding the interpretation or application of this Agreement, in particular when a Party considers that a measure of another Party is inconsistent with the obligations of this Agreement.
Article 12.3. Choice of Forum
1. Disputes regarding the same matter arising under this Agreement and the WTO Agreement may be settled in either forum at the discretion of the complaining Party.
2. Unless otherwise agreed by the disputing Parties, once the complaining Party has requested a WTO panel under Article 6 of the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (hereinafter referred to as the "DSU") or a panel under this Agreement pursuant to paragraph 1 of Article 12.6 (Request for a Panel), the forum selected shall be used to the exclusion of the other in respect of that matter.
3. Before a Party initiates a dispute settlement procedure against another Party under the WTO Agreement, that Party shall notify the other Parties of its intention.
Article 12.4. Good Offices, Conciliation or Mediation
1. Good offices, conciliation and mediation are procedures that are undertaken voluntarily if the Parties so agree. They may begin and be terminated at any time. They may continue while procedures of a panel established in accordance with this Chapter are in progress.
2. Proceedings involving good offices, conciliation and mediation shall be confidential and without prejudice to the Parties' rights in any other proceedings.
Article 12.5. Consultations
1. A Party may request in writing consultations with any other Party with respect to any matter referred to in Article 12.2 (Scope of Application). The requesting Party shall notify the other Parties in writing thereof.
2. Consultations shall take place in the Joint Committee if the Parties making and receiving the request for consultations so agree.
3. The request for consultations shall set out the reasons for the complaint, including an identification of the measure concerned and an indication of the legal basis of the complaint.
4. Consultations shall be held within:
(a) 30 days following the date of receipt of the request for consultations regarding urgent matters (18);
(b) 45 days following the date of receipt of the request for consultations for all other matters; or
(c) such other period as the consulting Parties may agree.
5. Consultations may be held in person or by any technological means available to the consulting Parties. If in person, consultations shall be held in the place agreed by the consulting Parties. If no agreement has been reached by the consulting Parties the consultations shall be held in the territory of the requested Party.
6. In a consultation, the consulting Parties shall provide sufficient information to enable a full examination of how the measure in force might affect the operation and application of this Agreement. The consulting Parties shall treat any confidential or proprietary information exchanged in the course of consultations in the same manner as the Party providing the information.
7. The consultations shall be confidential and without prejudice to the rights of the consulting Parties in any further proceedings.
8. The consulting Parties shall inform the other Parties of any mutually agreed resolution of the matter.
Article 12.6. Request for a Panel
1. A consulting Party may request in writing the establishment of a panel:
(a) if the requested Party has not responded to the request for consultations within 15 days of the date of receipt of such request;
(b) if consultations are not held within the periods established in Article 12.5 (Consultations) or within any other periods as the requested and requesting Parties may have agreed; or