Article 16.12. Promotion of Innovation and Technological Development
1. The Parties recognize the importance of promoting technological innovation, disseminating technological information, and building technological capacity, including, as appropriate, through collaborative scientific research projects between or among the Parties. Accordingly, the Parties will seek and encourage opportunities for science and technology cooperation and identify areas for such cooperation and, as appropriate, engage in collaborative scientific research projects.
2. The Parties shall give priority to collaborations that advance common goals in science, technology, and innovation and support partnerships between public and private research institutions and industry. Any such collaborative activities or transfer of technology shall be based on mutually agreed terms.
3. Each Party shall designate a contact point to facilitate the development of collaborative projects from the following offices responsible for science and technology cooperation, which shall review periodically the state of collaboration through mutually agreed means of communication:
(a) in the case of the United States, Office of Science and Technology Cooperation, Bureau of Oceans, and International Environmental and Scientific Affairs, U.S. Department of State;
(b) in the case of Peru, el Consejo Nacional de Ciencia, Tecnologia e Innovacién Tecnolégica (CONCYTEC); or
their successors.
Article 16.13. Understandings Regarding Certain Public Health Measures
1. The Parties affirm their commitment to the Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2).
2. The Parties have reached the following understandings regarding this Chapter.
(a) The obligations of this Chapter do not and should not prevent a Party from taking measures to protect public health by promoting access to medicines for all, in particular concerning cases such as HIV/AIDS, tuberculosis, malaria, and other epidemics as well as circumstances of extreme urgency or national emergency. Accordingly, while reiterating their commitment to this Chapter, the Parties affirm that this Chapter can and should be interpreted and implemented in a manner supportive of each Party's right to protect public health and, in particular, to promote access to medicines for all.
(b) In recognition of the commitment to access to medicines that are supplied in accordance with the Decision of the General Council of 30 August 2003 on the Implementation of Paragraph Six of the Doha Declaration on the TRIPS Agreement and Public Health (WT/L/540) and the WTO General Council Chairman's statement accompanying the Decision (JOB(03)/177, WT/GC/M/82) (collectively, the "TRIPS/health solution"), this Chapter does not and should not prevent the effective utilization of the TRIPS/health solution.
(c) With respect to the aforementioned matters, if an amendment of the TRIPS Agreement enters into force with respect to the Parties and a Party's application of a measure in conformity with that amendment violates this Chapter, the Parties shall immediately consult in order to adapt this Chapter as appropriate in the light of the amendment.
Article 16.14. Final Provisions
1. Except as otherwise provided in Annex 16.1 and Article 16.1.3 and 16.1.4, each Party shall give effect to this Chapter on the date of entry into force of this Agreement.
2. A Party may delay giving effect to certain provisions of this Chapter as specified in Annex 16.1.
3. The Parties shall periodically review the implementation and operation of this Chapter and shall have the opportunity to undertake further negotiations to modify any of its provisions, including, as appropriate, consideration of an improvement in a Partyâs level of economic development.
Chapter Seventeen. Labor
Article 17.1. Statement of Shared Commitments
The Parties reaffirm their obligations as members of the International Labor Organization (ILO).
Article 17.2. Fundamental Labor Rights (1)
1. Each Party Shall Adopt and Maintain In Its Statutes and Regulations, and Practices thereunder, the following rights, as stated in the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up (1998) ILO Declaration): (2)
(a) freedom of association; (b) the effective recognition of the right to collective bargaining;
(c) the elimination of all forms of compulsory or forced labor;
(d) the effective abolition of child labor and, for purposes of this Agreement, a prohibition on the worst forms of child labor; and
(e) the elimination of discrimination in respect of employment and occupation.
2. Neither Party shall waive or otherwise derogate from, or offer to waive or otherwise derogate from, its statutes or regulations implementing paragraph 1 in a manner affecting trade or investment between the Parties, where the waiver or derogation would be inconsistent with a fundamental right set out in that paragraph.
Article 17.3. Enforcement of Labor Laws
1. (a) A Party shall not fail to effectively enforce its labor laws, including those it adopts or maintains in accordance with Article 17.2.1, through a sustained or recurring course of action or inaction, in a manner affecting trade or investment between the Parties, after the date of entry into force of this Agreement.
(b) A decision a Party makes on the distribution of enforcement resources shall not be a reason for not complying with the provisions of this Chapter. Each Party retains the right to the reasonable exercise of discretion and to bona fide decisions with regard to the allocation of resources between labor enforcement activities among the fundamental labor rights enumerated in Article 17.2.1, provided the exercise of such discretion and such decisions are not inconsistent with the obligations of this Chapter. (3)
2. Nothing in this Chapter shall be construed to empower a Party's authorities to undertake labor law enforcement activities in the territory of another Party.
Article 17.4. Procedural Guarantees and Public Awareness
1. Each Party shall ensure that persons with a legally recognized interest in a particular matter have appropriate access to tribunals for the enforcement of the Party's labor laws. Such tribunals may include administrative, quasi-judicial, judicial, or labor tribunals, as provided in the Party's law.
2. Each Party shall ensure that proceedings before such tribunals for the enforcement of its labor laws are fair, equitable, and transparent and, to this end, each Party shall ensure that:
(a) such proceedings comply with due process of law;
(b) any hearings in such proceedings are open to the public, except where the administration of justice otherwise requires;
(c) the parties to such proceedings are entitled to support or defend their respective positions including by presenting information or evidence; and
(d) such proceedings do not entail unreasonable charges, or time limits, or unwarranted delays.
3. Each Party shall provide that final decisions on the merits of the case in such proceedings are:
(a) in writing and state the reasons on which the decisions are based;
(b) made available without undue delay to the parties to the proceedings and, consistent with its law, to the public; and
(c) based on information or evidence in respect of which the parties to the proceedings were offered the opportunity to be heard.
4. Each Party shall provide, as appropriate, that parties to such proceedings have the right to seek review and, where warranted, correction of final decisions issued in such proceedings.
5. Each Party shall ensure that tribunals that conduct or review such proceedings are impartial and independent and do not have any substantial interest in the outcome of the matter.
6. Each Party shall provide that the parties to such proceedings may seek remedies to ensure the enforcement of their rights under its labor laws. Such remedies may include measures such as orders, fines, penalties, or temporary workplace closures.
7. Each Party shall promote public awareness of its labor laws, including by:
(a) ensuring the availability of public information related to its labor laws and enforcement and compliance procedures; and
(b) encouraging education of the public regarding its labor laws.
Article 17.5. Institutional Arrangements
1. The Parties hereby establish a Labor Affairs Council (Council) comprising cabinet-level or equivalent representatives of the Parties, who may be represented on the Council by their deputies or high-level designees.
2. The Council shall meet within the first year after the date of entry into force of this Agreement and thereafter as often as it considers necessary. The Council shall:
(a) oversee the implementation of and review progress under this Chapter, including the activities of the Labor Cooperation and Capacity Building Mechanism established under Article 17.6;
(b) develop general guidelines for consideration of communications referred to in paragraph 5(c);
(c) prepare reports, as appropriate, on matters related to the implementation of this Chapter and make such reports available to the public;
(d) endeavor to resolve matters referred to it under Article 17.7.4; and
(e) perform any other functions as the Parties may agree.
3. All decisions of the Council shall be taken by consensus, and shall be made public unless the Council otherwise decides.
4. Unless the Council otherwise decides, each of its meetings shall include a session at which members of the Council have an opportunity to meet with the public to discuss matters relating to the implementation of this Chapter.
5. Each Party shall designate an office within its labor ministry or equivalent entity that shall serve as a contact point with the other Parties and with the public. The contact points of each Party shall meet as often as they consider necessary or at the request of the Council. Each Party's contact point shall:
(a) assist the Council in carrying out its work, including coordination of the Labor Cooperation and Capacity Building Mechanism;
(b) cooperate with the other Parties' contact points and with relevant government organizations and agencies to:
(i) establish priorities, with a particular emphasis on the issues identified in paragraph 2 of Annex 17.6, regarding cooperative activities on labor matters,
(ii) develop specific cooperative and capacity-building activities according to such priorities,
(iii) exchange information on the labor laws and practices of each Party, including best practices and ways to improve them, and
(iv) seek support, as appropriate, from international organizations such as the ILO, the Inter-American Development Bank, the World Bank, and the Organization of American States, to advance common commitments regarding labor matters;
(c)provide for the submission, receipt, and consideration of communications from persons of a Party on matters related to this Chapter and make such communications available to the other Party and, as appropriate, to the public; and
(d) provide for the receipt of cooperative consultation requests referred to in Article 17.7.1 and 17.7.4.
6. Each Party shall review communications received under paragraph 5(c) in accordance with domestic procedures.
7. Each Party may convene a new, or consult an existing, national labor advisory or consultative committee comprising representatives of its labor and business organizations and other members of its public to provide views on any issues related to this Chapter.
Article 17.6. Labor Cooperation and Capacity Building Mechanism
1. Recognizing that cooperation on labor issues plays an important role in advancing development in the territory of the Parties and in enhancing opportunities to improve labor standards, and to further advance common commitments regarding labor matters, including the principles embodied in the ILO Declaration and ILO Convention No. 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (1999), the Parties hereby establish a Labor Cooperation and Capacity Building Mechanism, as set out in Annex 17.6. This Mechanism shall operate in a manner that respects each Party's law and sovereignty.
2. The Parties shall strive to ensure that the activities undertaken through that Mechanism:
(a) are consistent with each Party's national programs, development strategies, and priorities;
(b) provide opportunities for public participation in the development and implementation of such activities; and
(c) take into account each Party's economy, culture, and legal system.
Article 17.7. Cooperative Labor Consultations
1. A Party may request cooperative labor consultations with another Party regarding any matter arising under this Chapter by delivering a written request to the contact point that the other Party has designated under Article 17.5.5.
2. The cooperative labor consultations shall begin promptly after delivery of the request. The request shall contain information that is specific and sufficient to enable the Party receiving the request to respond.
3. The consulting Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter, taking into account opportunities for cooperation related to the matter, and may seek advice or assistance from any person or body they deem appropriate in order to fully examine the matter at issue.
4. If the consulting Parties fail to resolve the matter pursuant to paragraph 3, a consulting Party may request that the Council be convened to consider the matter by delivering a written request to the contact point of each of the Parties. (4)
5. The Council shall promptly convene and shall endeavor to resolve the matter, including, where appropriate, by consulting outside experts and having recourse to such procedures as good offices, conciliation, or mediation.
6. If the consulting Parties have failed to resolve the matter within 60 days of a request under paragraph 1, the complaining Party may request consultations under Article 21.4 (Consultations) or a meeting of the Commission under Article 21.5 (Intervention of the Commission) and, as provided in Chapter Twenty-One (Dispute Settlement), thereafter have
recourse to the other provisions of that Chapter. The Council may inform the Commission of how the Council has endeavored to resolve the matter through consultations.
7. No Party may have recourse to dispute settlement under this Agreement for a matter arising under this Chapter without first seeking to resolve the matter in accordance with this Article.
Article 17.8. Definitions
For purposes of this Chapter:
labor laws means a Party's statutes and regulations, or provisions thereof, that are directly related to the following internationally recognized labor rights:
(a) freedom of association; (b) the effective recognition of the right to collective bargaining; (c) the elimination of all forms of forced or compulsory labor;
(d) the effective abolition of child labor, a prohibition on the worst forms of child labor, and other labor protections for children and minors;
(e) the elimination of discrimination in respect of employment and occupation; and
(f) acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health.
For greater certainty, the setting of standards and levels in respect of minimum wages by each Party shall not be subject to obligations under this Chapter. Each Party's obligations under this Chapter pertain to enforcing the level of the general minimum wage established by that Party; and
statutes and regulations and statutes or regulations means: for the United States, acts of Congress or regulations promulgated pursuant to acts of Congress that are enforceable by action of the central level of government and, for purposes of this Chapter, includes the Constitution of the United States.
Chapter Eighteen. Environment
Objectives
Recognizing that each Party has sovereign rights and responsibilities with respect to its natural resources, the objectives of this Chapter are to contribute to the Parties' efforts to ensure that trade and environmental policies are mutually supportive, to promote the optimal use of resources in accordance with the objective of sustainable development, and to strive to strengthen the links between the Parties' trade and environmental policies and practices, which may take place through environmental cooperation and collaboration.
Article 18.1. Levels of Protection
Recognizing the sovereign right of each Party to establish its own levels of domestic environmental protection and environmental development priorities, and to adopt or modify accordingly its environmental laws and policies, each Party shall strive to ensure that those laws and policies provide for and encourage high levels of environmental protection and shall strive to continue to improve its respective levels of environmental protection.
Article 18.2. Environmental Agreements! (1)
A Party shall adopt, maintain, and implement laws, regulations, and all other measures to fulfill its obligations under the multilateral environmental agreements listed in Annex 18.2 ("covered agreements") (2)
Article 18.3. Enforcement of Environmental Laws
1. (a) A Party shall not fail to effectively enforce its environmental laws, and its laws, regulations, and other measures to fulfill its obligations under the covered agreements, through a sustained or recurring course of action or inaction, in a manner affecting trade or investment between the Parties, after the date of entry into force of this Agreement.
(b)(i)The Parties recognize that each Party retains the right to exercise prosecutorial discretion and to make decisions regarding the allocation of environmental enforcement resources with respect to other environmental laws determined to have higher priorities. Accordingly, the Parties understand that with respect to the enforcement of environmental laws and all laws, regulations, and other measures to fulfill a Party's obligations under the covered agreements, a Party is in compliance with subparagraph (a) where a course of action or inaction reflects a reasonable, articulable, bona fide exercise of such discretion, or results from a reasonable, articulable, bona fide decision regarding the allocation of such resources.
(ii) The Parties recognize the importance of the covered agreements. Accordingly, where a course of action or inaction relates to laws, regulations, and other measures to fulfill its obligations under covered agreements, that shall be relevant to a determination under clause (i) regarding whether an allocation of resources is reasonable and bona fide.
2. The Parties recognize that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in their respective environmental laws. Accordingly, a Party shall not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such laws in a manner that weakens or reduces the protections afforded in those laws in a manner affecting trade or investment between the Parties.
3. Paragraph 2 shall not apply where a Party waives or derogates from an environmental law pursuant to a provision in law providing for waivers or derogations, provided that the waiver or derogation is not inconsistent with the Party's obligations under a covered agreement. (3)
4. Annex 18.3.4 sets out additional provisions with respect to forest sector governance.
5. Nothing in this Chapter shall be construed to empower a Partyâs authorities to undertake environmental law enforcement activities in the territory of another Party other than as specifically provided in Annex 18.3.4.
Article 18.4. Procedural Matters
1. Each Party shall ensure that interested persons may request the Party's competent authorities to investigate alleged violations of its environmental laws, and that each Party's competent authorities shall give such requests due consideration in accordance with its law.
2. Each Party shall ensure that judicial, quasi-judicial, or administrative proceedings are available under its law to provide sanctions or remedies for violations of its environmental laws.
(a) Such proceedings shall be fair, equitable, and transparent and, to this end, shall comply with due process of law, and be open to the public except where the administration of justice otherwise requires.
(b) Tribunals that conduct or review such proceedings shall be impartial and independent and shall not have any substantial interest in the outcome of the matter.
3. Each Party shall ensure that persons with a legally recognized interest under its law in a particular matter shall have appropriate access to the proceedings referred to in paragraph 2.
4. Each Party shall provide persons with a legally recognized interest under its law in a particular matter appropriate and effective access to remedies for violations of that Party's environmental laws or for violations of a legal duty under that Party's law relating to the environment or environmental conditions affecting human health, which may include rights such as:
(a) to sue another person under that Party's jurisdiction for damages under that Party's laws;
(b) to seek injunctive relief where a person suffers, or may suffer, loss, damage, or injury as a result of conduct by another person subject to that Party's jurisdiction;
(c) to seek sanctions or remedies such as monetary penalties, emergency closures, temporary suspension of activities, or orders to mitigate the consequences of such violations; or
(d) to request a tribunal to order that Party's competent authorities to take appropriate action to enforce its environmental laws in order to protect the environment or to avoid environmental harm.
5. Each Party shall provide appropriate and effective sanctions or remedies for violations of that Party's environmental laws that:
(a) take into consideration, as appropriate, the nature and gravity of the violation, any economic benefit the violator has derived from the violation, the economic condition of the violator, and other relevant factors; and
(b) may include administrative, civil, and criminal remedies and sanctions, such as compliance agreements, penalties, fines, imprisonment, injunctions, closure of facilities, or requirements to take remedial action or pay for the cost of containing or cleaning up pollution.
Article 18.5. Mechanisms to Enhance Environmental Performance
1. the Parties recognize that flexible, Vvoluntary, and incentive-based mechanisms can contribute to the achievement and maintenance of environmental protection, complementing the procedures set out in Article 18.4, as appropriate, and in accordance with its law and policy, each Party shall encourage the development and use of such mechanisms, which may include:
(a) mechanisms that facilitate voluntary action to protect or enhance the environment, such as:
(i) partnerships involving businesses, local communities, non-governmental organizations, government agencies, or scientific organizations,
(ii) voluntary guidelines for environmental performance, or
(iii) voluntary sharing of information and expertise among authorities, interested parties, and the public concerning: methods for achieving high levels of environmental protection, voluntary environmental auditing and reporting, ways to use resources more efficiently or reduce environmental impacts, environmental monitoring, and collection of baseline data; or
(b) incentives, including market-based incentives where appropriate, to encourage conservation, restoration, sustainable use, and protection of natural resources and the environment, such as public recognition of facilities or enterprises that are superior environmental performers, or programs for exchanging permits or other instruments to help achieve environmental goals.
2. As appropriate and feasible and in accordance with its law, each Party shall encourage:
(a) the maintenance, development, or improvement of performance goals and standards used in measuring environmental performance; and
(b) flexible means to achieve such goals and meet such standards.
Article 18.6. Environmental Affairs Council
1. The Parties hereby establish an Environmental Affairs Council (Council). Each Party shall designate a senior level official with environmental responsibilities to represent it on the Council and an office in its appropriate ministry or government entity to serve as its contact point for carrying out the work of the Council.
2. The Council shall:
(a) consider and discuss the implementation of this Chapter;
(b) provide periodical reports to the Free Trade Commission regarding the implementation of this Chapter;
(c) provide for public participation in its work, including by:
(i) establishing mechanisms to exchange information and discuss matters related to the implementation of this Chapter with the public,
(ii) receiving and considering input in setting the agenda for Council meetings, and
(iii) receiving public views and comments on the issues the public considers relevant to the Council's work and requesting public views and comments on the issues the Council considers relevant to its work;
(d) consider and discuss the implementation of the environmental cooperation agreement (ECA) signed by the Parties, including its work program and cooperative activities, and submit any comments and recommendations, including comments and recommendations received from the public, to the Parties and to the Environmental Cooperation Commission established under the ECA;
(e) endeavor to resolve matters referred to it under Article 18.12.4; and
(f) perform any other functions as the Parties may agree.
3. The Council shall meet within the first year after the date of entry into force of this Agreement and annually thereafter, unless the Parties otherwise agree.