3. A Party shall not accord recognition in a manner which would constitute a means of discrimination between countries in the application of its standards or criteria for the authorisation, licensing, or certification of service suppliers, or a disguised restriction on trade in services.
Article 4.9. Movement of Natural Persons
1. This Article applies to measures affecting natural persons who are service suppliers of a Party, and natural persons of a Party who are employed by a service supplier of a Party, in respect of the supply of a service.
2. This Chapter shall not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding nationality, residence or employment on a permanent basis.
3. Natural persons covered by a specific commitment shall be allowed to supply the service in accordance with the terms of that commitment.
4. This Chapter shall not prevent a Party from applying measures to regulate the entry of natural persons of another Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific commitment. (8)
Article 4.10. Transparency
1. Each Party shall publish promptly and, except in emergency situations, at the latest by the time of their entry into force, all relevant measures of general application which pertain to or affect the operation of this Chapter. International agreements pertaining to or affecting trade in services to which a Party is a signatory shall also be published.
2. Where publication as referred to in paragraph1 is not practicable, such information shall be made otherwise publicly available.
3. Nothing in this Chapter shall require any Party to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.
Article 4.11. Monopolies and Exclusive Service Suppliers
1. Each Party shall ensure that any monopoly supplier of a service in its territory does not, in the supply of the monopoly service in the relevant market, act in a manner inconsistent with that Partyâs obligations under Article 4.3 (Most-Favoured-Nation Treatment) and specific commitments.
2. Where a Party's monopoly supplier competes, either directly or through an affiliated company, in the supply of a service outside the scope of its monopoly rights and which is subject to that Party's specific commitments, the Party shall ensure that such a supplier does not abuse its monopoly position to act in its territory in a manner inconsistent with such commitments.
3. The provisions of this Article shall also apply to cases of exclusive service suppliers, where a Party, formally or in effect:
(a) authorises or establishes a small number of service suppliers; and
(b) substantially prevents competition among those suppliers in its territory.
Article 4. Business Practices
1. Parties recognise that certain business practices of service suppliers, other than those falling under Article 4.11 (Monopolies and Exclusive Service Suppliers), may restrain competition and thereby restrict trade in services.
2. Each Party shall, at the request of any other Party, enter into consultations with a view to eliminating practices referred to in paragraph 1. The Party addressed shall accord full and sympathetic consideration to such a request and shall co-operate through the supply of publicly available non-confidential information of relevance to the matter in question. The Party addressed shall also provide other information available to the requesting Party, subject to its domestic law and to the conclusion of satisfactory agreement concerning the safeguarding of its confidentiality by the requesting Party.
Article 4.13. Payments and Transfers
1. Except under the circumstances envisaged in Article 4.14 (Restrictions to Safeguard the Balance-of-Payments) and Annex XIV (Payments and Capital Movement) a Party shall not apply restrictions on international transfers and payments for current transactions with another Party.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties under the Articles of the Agreement of the International Monetary Fund (hereinafter referred to as "IMF"), including the use of exchange actions which are in conformity with the Articles of the Agreement of the IMF, provided that a Party shall not impose restrictions on capital transactions inconsistently with its specific commitments regarding such transactions, except under Article 4.14 (Restrictions to Safeguard the Balance of Payments) or at the request of the IMF.
Article 4.14. Restrictions to Safeguard the Balance-of-Payments
1. The Parties shall endeavour to avoid the imposition of restrictions to safeguard the balance of payments.
2. The rights and obligations of the Parties in respect of such restrictions shall be governed by paragraphs 1 to 3 of Article XII of the GATS, which are hereby incorporated into and made part of this Chapter. 3. A Party adopting or maintaining such restrictions shall promptly notify the Joint Committee thereof.
Article 4.15. General Exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade in services, nothing in this Chapter shall be construed to prevent the adoption or enforcement by any Party of measures:
(a) necessary to protect public morals or to maintain public order; (9)
(b) necessary to protect human, animal or plant life or health;
(c) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Chapter including those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on services contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
(iii) safety;
(d) inconsistent with Article 4.5 (National Treatment), provided that the difference in treatment is aimed at ensuring the equitable or effective imposition or collection of direct taxes in respect of services or service suppliers of other Parties; (10)
(d) inconsistent with Article 4.3 (Most-Favoured-Nation Treatment), provided that the difference in treatment is the result of an agreement on the avoidance of double taxation or provisions on the avoidance of double taxation in any other international agreement or arrangement by which the Party is bound.
Article 4.16. Security Exceptions
Nothing in this Chapter shall be construed:
(a) to require any Party to furnish any information, the disclosure of which it considers contrary to its essential security interests;
(b) to prevent any Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to the supply of services as carried out directly or indirectly for the purpose of provisioning a military establishment;
(ii) relating to fissionable and fusionable materials or the materials from which they are derived;
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent any Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
2. The Joint Committee shall be informed to the fullest extent possible of measures taken under paragraphs 1(b) and (c) and of their termination.
Article 4.17. Schedules of Specific Commitments
1. Each Party shall set out in a schedule the specific commitments it undertakes under Articles 4.4 (Market Access), 4.5 (National Treatment), and 4.6 (Additional Commitments). With respect to sectors where such commitments are undertaken, each Schedule shall specify:
(a) terms, limitations and conditions on market access; (b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments referred to in Article 4.6 (Additional Commitments); and
(d) where appropriate, the time-frame for implementation of such commitments and the date of entry into force of such commitments.
2. Measures inconsistent with both Articles 4.4 (Market Access) and 4.5 (National Treatment) are inscribed in the column relating to Article 4.4 (Market Access). In this case, the inscription is considered to provide a condition or qualification to Article 4.5 (National Treatment) as well.
Article 4.18. Review
1. With the objective of further liberalising trade in services between them, the Parties shall review their schedules of specific commitments and their Lists of MFN Exemptions at least every three years to provide for a reduction or elimination of substantially all remaining discrimination between the Parties with regard to trade in services covered in this Chapter on a mutually advantageous basis and ensuring an overall balance of rights and obligations. The first such review shall take place not later than two years after the entry into force of this Agreement.
2. The Parties shall jointly review the negotiations provided for in paragraph 4 of Article VI and paragraph 1 of Article XV of the GATS and incorporate any results of such negotiations, as appropriate, into this Chapter.
Article 4.19. Annexes
The following Annexes attached to this Agreement form an integral part of this Chapter:
(a) Annex XI (Lists of MFN Exemptions);
(b) Annex XII (Recognition of Qualifications of Service Suppliers);
(c) Annex XIII (Movement of Natural Persons Supplying Services);
(d) Annex XIV (Payments and Capital Movement)
(e) Annex XV (Schedules of Specific Commitments);
(f) Annex XVI (Financial Services); and
(g) Annex XVII (Telecommunications Services).
Chapter 5. Investment
Article 5.1. Coverage
This Chapter shall apply to commercial presence in all sectors, with the exception of services sectors as set out in Article 4.1 (Scope and Coverage) in Chapter 4 (Trade in Services) of this Agreement.
Article 5.2. Definitions
1. For the purpose of this Chapter,
(a) “juridical person” means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;
(b) “juridical person of a Party” means a juridical person constituted or otherwise organised under the law of Colombia or of an EFTA State and engaged in substantive business operations in Colombia or in the EFTA State concerned;
(c) “natural person” means a national of Colombia or of an EFTA State according to its respective legislation;
(d) “national” means a natural person who has the nationality of a Party or is a permanent resident of a Party in accordance with its domestic law;
(e) “commercial presence” means any type of business establishment, including through:
(i) the constitution, acquisition or maintenance of a juridical person, or
(ii) the creation or maintenance of a branch or a representative office, within the territory of another Party for the purpose of performing an economic activity.
2. As regards natural persons, this Chapter shall not extend to seeking or taking employment in the labor market or confer a right of access to the labor market of another Party.
Article 5.3. National Treatment
With respect to commercial presence, and subject to the reservations/non- conforming measures set out in Annex XVIII (Reservations/Non-conforming Measures) to this, each Party shall grant to juridical and natural persons of another Party, and to the commercial presence of such persons, treatment no less favorable than that it accords, in like situations to its own juridical and natural persons.
Article 5.4. Reservations/Non-conforming Measures
1. National Treatment as provided for under Article 5.3 (National Treatment) shall not apply to:
(a) any reservation/non-conforming measure that is listed by a Party in Annex XVIII (Reservations/Non-conforming Measures);
(b) an amendment to a reservation/non-conforming measure covered by paragraph (a) to the extent that the amendment does not increase the non-conformity of the reservation with Article 5.3 (National Treatment);
(c) any new reservation/non-conforming measure adopted by a Party in accordance with paragraph 4 of this Article and incorporated into Annex XVIII (Reservations/Non-conforming Measures);
(d) any measure that a Party adopts or maintains with respect to sectors, subsectors, or activities, as set out in Annex XVII (Reservations/Non-conforming Measures) ;
to the extent that such reservation/non-conforming measure is inconsistent with Article 5.3 (National Treatment).
2. As part of the review provided for in Article 5.9 (Review) of this Chapter the Parties undertake to review at least every three years the status of the reservations/non-conforming measure set out in Annex XVIII (Reservations/Non- conforming Measures) with a view to reducing or removing such reservations/non- conforming measures.
3. A Party may, at any time, either upon the request of another Party or unilaterally, remove in whole or in part reservations/non-conforming measure set out in Annex XVIII (Reservations/Non-conforming Measures) by written notification to the other Parties.
4. In case of the adoption of a new reservation, based on a law adopted by the legislature, as referred to in subparagraph 1(c), the Party concerned shall ensure that the overall level of its commitments under this Agreement is not affected. It shall promptly notify the other Parties of the reservation and set out, where applicable, the measures aimed at maintaining the overall level of its commitments. On receiving such notification, any other Party may request consultations regarding the reservation and related issues. Such consultations shall be entered into without delay.
Article 5.5. Key Personnel
1. Each Party shall, subject to its laws and regulations, grant natural persons of another Party, and key personnel, which is employed by natural or juridical persons of another Party, temporary entry and stay in its territory in order to engage in activities connected with commercial presence, including the provision of advice or key technical services.
2. Each Party shall, subject to its laws and regulations, permit natural or juridical persons of another Party, and their commercial presence, to employ, in connection with commercial presence, any key personnel of the natural or juridical person's choice provided that such key personnel has been permitted to enter, stay and work in its territory and that the employment concerned conforms to the terms, conditions and time limits of the permission granted to such key personnel.
3. The Parties shall, subject to their laws and regulations, grant temporary entry and stay and provide any necessary confirming documentation to the spouse and minor children of key personnel who has been granted temporary entry, stay and authorisation to work in accordance with paragraphs 1 and 2. The spouse and minor children shall be admitted for the period of the stay of that person.
4. Subject to paragraphs 1 to 3 of this Article, Annex XIII (Movement of Natural Persons Supplying Services) shall apply to this Article mutatis mutandis.
Article 5.6. Right to Regulate
Subject to the provisions of this Chapter and Annexes XIV (Payments and Capital Movements) and XVIII (Reservations/Non-conforming Measures), a Party is not prevented from regulating the commercial presence as set out in subparagraph 1(d) of Article 5.2 (Definitions).
Article 5.7. Relation to other International Agreements
The provisions of this Chapter shall be without prejudice to the rights and obligations of the Parties under other international agreements, to which Colombia and one or several EFTA States are parties. It is understood that any dispute settlement mechanism in an investment protection agreement to which Colombia and one EFTA State are parties is not applicable to alleged breaches of this Chapter.
Article 5.8. Exceptions
The rights and obligations of the Parties in respect of general exceptions, including measures necessary to maintain public order (11), shall be governed by Article XIV of the GATS, which is hereby incorporated into and made part of this Chapter, mutatis mutandis.
Article 5.9. Review
This Chapter shall be subject to periodic review within the framework of the Joint Committee regarding the possibility to further develop the Parties' commitments.
Article 5.10. Payments and Transfers
1. Except under the circumstances envisaged in Article 5.11 (Restrictions to Safeguard the Balance-of-Payments) and Annex XIV (Payments and Capital Movements), a Party shall not apply restrictions on current payments and capital movements relating to activities with regard to "commercial presence" in non-services sectors.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties under the Articles of the Agreement of the IMF, including the use of exchange actions which are in conformity with the said Articles, provided that a Party does not impose restrictions on capital transactions inconsistent with its obligations under this Chapter.
Article 5.11. Restrictions to Safeguard the Balance-of-Payments
1. The Parties shall endeavour to avoid the imposition of restrictions to safeguard the balance of payments.
2. The rights and obligations of the Parties in respect of such restrictions shall be governed by paragraphs 1 to 3 of Article XII of the GATS, which are hereby incorporated into and made part of this Chapter, mutatis mutandis.
3. A Party adopting or maintaining such restrictions shall promptly notify the Joint Committee.
Chapter 6. PROTECTION OF INTELLECTUAL PROPERTY
Article 6.1. General Provisions
1. The Parties shall grant and ensure adequate, effective and non-discriminatory protection of intellectual property rights, and provide for measures for the enforcement of such rights against infringement thereof, counterfeiting and piracy, in accordance with the provisions of this Chapter and the international agreements referred to therein.
2. Each Party shall give effect to the provisions of this Chapter and may, but shall not be obliged to, implement in the national legislation more extensive protection than is required by this Chapter, provided that such protection does not contravene the provisions of this Chapter.
3. The Parties shall accord to the nationals of other Party treatment no less favourable than that it accords to its own nationals with regard to the protection (12) of intellectual property, subject to the exceptions already provided in Articles 3 and 5 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as "the TRIPS Agreement").
4. With regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a Party to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of the other Parties, subject to the exceptions already provided in Articles 4 and 5 of the of the TRIPS Agreement.
5. In accordance with paragraph 2 of Article 8 of the TRIPS Agreement, Parties may take appropriate measures, provided that they are consistent with the provisions of this Agreement, if needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.
Article 6.2. Basic Principles
1. In accordance with Article 7 of the TRIPS Agreement, the Parties recognise that the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
2. The Parties recognise that technology transfer contributes to strengthen national capabilities with the aim to establish a sound and viable technological base.
3. The Parties recognise the impact of information and communication technologies on the creation and usage of literary and artistic works.
4. In accordance with paragraph 1 Article 8 of the TRIPS Agreement, the Parties may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Chapter.
5. The Parties recognise the principles established in the Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001 by the WTO at its Fourth Ministerial Meeting, held in Doha, Qatar, and the Decision of WTO's General Council on the Implementation of Paragraph 6 of the Doha Declaration, adopted on 30 August 2003 and the Amendment of the TRIPS Agreement adopted on 6 December 2005.
Article 6.3. Definition of Intellectual Property
For the purposes of this Agreement, the term “intellectual property” refers to all categories of intellectual property that are the subject of Articles 6.6 (Trademarks) to 6.11 (Undisclosed Information / Measures Related to Certain Regulated Products).
Article 6.4. International Conventions
1. Without prejudice of the rights and obligations contained in this Chapter, the Parties reaffirm their existing rights and obligations, including the right to apply the exceptions and to make use of the flexibilities, under the TRIPS Agreement, and any other multilateral agreement related to intellectual property and agreements administered under the auspices of the World Intellectual Property Organization (hereinafter referred to as “WIPO”) to which they are party, in particular the following:
(a) Paris Convention of 20 March 1883 for the Protection of Industrial Property (Stockholm Act, 1967) hereinafter referred to as the “Paris Convention”;
(b) Berne Convention of 9 September 1886 for the Protection of Literary and Artistic Works (Paris Act, 1971); and
(c) International Convention of 26 October 1961 for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention).
2. The Parties to this Agreement which are not parties to one or more of the agreements listed below shall ratify or accede to the following multilateral agreements at the entry into force of this Agreement:
(a) Budapest Treaty of 28 April 1977 on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure;
(b) International Convention for the Protection of New Varieties of Plants 1978 (1978 UPOV Convention), or the International Convention for the Protection of New Varieties of Plants 1991 (1991 UPOV Convention); and
(c) Patent Cooperation Treaty of 19 June 1970 (Washington Act, amended in 1979 and modified in 1984).
3. The Parties to this Agreement which are not parties to one or more of the agreements listed below shall ratify or accede to the following multilateral agreements within one year from the date of entry into force of this Agreement:
(a) WIPO Performances and Phonograms Treaty of 20 December 1996 (WPPT); and
(b) WIPO Copyright Treaty of 20 December 1996 (WCT).
4. The Parties which are not parties to the Protocol of 27 June 1989 Relating to the Madrid Agreement concerning the International Registration of Marks shall ratify or accede to this agreement before 1 January 2011.
5. The Parties will carry out the necessary actions to submit as soon as possible for the consideration of the Parties’ competent national authorities the adherence to the Geneva Act (1999) of the Hague Agreement concerning the International Registration of Industrial Designs.
6. The Parties to this Agreement may agree, upon mutual consent, to have an exchange of views of experts on activities relating to existing or future international conventions on Intellectual Property Rights and on any other matter related to Intellectual Property Rights as the Parties may agree upon.
Article 6.5. Measures Related to Biodiversity
1. The Parties reaffirm their sovereign rights over their natural resources and recognise their rights and obligations as established by the Convention on Biological Diversity with respect to access to genetic resources, and to the fair and equitable sharing of benefits arising out of the utilisation of these genetic resources.
2. The Parties recognise the importance and the value of their biological diversity and of the associated traditional knowledge, innovations and practices of indigenous and local communities. Each Party shall determine the access conditions to its genetic resources in accordance with the principles and provisions contained in applicable national and international law.
3. The Parties recognise past, present and future contributions of indigenous and local communities and their knowledge, innovations and practices to the conservation and sustainable use of biological and genetic resources and in general the contribution of the traditional knowledge of their indigenous and local communities to the culture and economic and social development of nations.
4. The Parties shall consider collaborating in cases regarding non compliance with applicable legal provisions on access to genetic resources and traditional knowledge, innovations and practices.
5. According to their national law, the Parties shall require that patent applications contain a declaration of the origin or source of a genetic resource, to which the inventor or the patent applicant has had access. As far as provided for in their national legislation, the Parties will also require the fulfilment of prior informed consent (PIC) and they will apply the provisions set out in this Article to traditional knowledge as applicable.
6. The Parties, in accordance with their national laws, shall provide for administrative, civil or criminal sanctions if the inventor or the patent applicant wilfully make a wrongful or misleading declaration of the origin or source. The judge may order the publication of the ruling.
7. If the law of a Party so provides: