The determination of the existence of serious injury or threat of serious injury shall be based on objective evidence showing the existence of a causal relationship between the increase in imports generated by the preference to which the merchandise in question is subject and the serious injury or threat of serious injury. Where factors other than increased subject imports are at the same time causing or threatening to cause injury to the like or directly competitive merchandise in question, such injury or threat of injury shall not be attributed to increased subject imports.
Article 6-10. Access to Information.
1. The Parties shall ensure that interested parties to an investigation shall have prompt and full access to the proceedings of other interested parties that are included in the file of the investigation in progress. To this end, each Party may use one of the following mechanisms:
a) Interested parties in the investigation shall send copies of each of the public reports, documents and evidence or non-confidential summaries to the other interested parties on the same day they are submitted to the investigating authority.
b) The competent authority shall implement mechanisms that allow interested parties to become aware of the existence of such proceedings within two (2) working days following their presentation and shall have agile and brief mechanisms that allow access to them when the notified interested parties so require.
2. In accordance with the provisions of the legislation of each Party, timely access shall be given to the information contained in the administrative file of an investigation under the terms of this Chapter. Access shall not be granted to information the disclosure of which could result in substantial and irreversible economic or financial harm to the owner of such information, as well as to government information required by law or other provisions of public policy and information contained in internal communications of the investigating authority, of the investigating authority with other government entities or govemment-to-govemment communications of a confidential nature.
Article 6-11. Confidential Information.
1. For the purposes of the investigations, the following information shall be considered confidential information, if it is submitted by the interested parties, because its disclosure or dissemination to the public may cause damage to their competitive position:
a) the production processes of the merchandise in question;
b) production costs and the identity of the components;
c) distribution costs;
d) the terms and conditions of sale, except those offered to the public;
e) sales prices per transaction and per product, except for price components such as dates of sales and distribution of the product, as well as transportation if based on public itineraries;
f) a description of the type of individual customers, distributors or suppliers; and
g) any other information specific to the company in question.
2. Any information which, by its nature, is confidential, or which is provided on a confidential basis, shall, upon justification thereof, be treated as such by the competent authorities. Such information shall not be disclosed without the authorization of the Party submitting it. Parties providing confidential information shall be requested to furnish non-confidential summaries thereof or, if they indicate that such information cannot be summarized, to state the reasons why it is not possible to provide a summary. However, if the competent authorities conclude that a request for information considered to be confidential is not justified, and if the Party concerned does not wish to make it public or authorize its disclosure in general or summary form, the authorities may disregard such information unless it is convincingly demonstrated to them, from an appropriate source, that the information is correct.
Article 6-12. Transparency.
1. In order to provide transparency in the investigation procedures and ensure a full and ample opportunity for interested parties to defend their interests, the Parties shall endeavor to reform their legislation on safequards to the extent possible in order to have the following mechanisms in place:
a) a mechanism that provides timely access for representatives of interested parties during the procedure to all information contained in the administrative record, including confidential information, provided that the requirements established by domestic legislation are met;
b) a confidentiality undertaking to which the representatives of the parties concerned will be bound, strictly prohibiting the use of the information for personal gain and its dissemination to persons who are not authorized to know it; and
c) specific sanctions for breaches of commitments adopted by stakeholder representatives.
2. The investigating authority shall give industrial users of the product under investigation, and representative consumer organizations in cases where the product is normally sold at retail, the opportunity to provide any information relevant to the investigation.
Article 6-13. Public Hearings.
During the course of each proceeding, the competent investigating authority:
a) without prejudice to the provisions of the law of each Party, after giving reasonable notice, hold a public hearing for the appearance, in person or by representative, of all interested parties to present evidence and to be heard conceming the serious injury or threat thereof and the appropriate remedy; and
b) provide an opportunity for all interested parties to appear at the hearing, present arguments and cross- examine.
Article 6-14. Publication
Article 6-14: Publication.
The importing Party shall publish in its official publication the determinations issued on the occasion of a safeguard investigation and shall notify the exporting Party in writing on the day following publication and offer consultations.
Article 6-15. Review of the Decision of the Competent Authority.
The decisions of the competent authorities issued pursuant to the provisions of this Chapter may be subject to judicial or administrative review, as provided for in the legislation of each Party.
Article 6-16. Compensation.
1. The Party that intends to apply a safeguard measure shall grant the other Party mutually agreed on compensation in the form of concessions having trade effects equivalent to the impact of the safeguard measure. For this purpose, consultations shall be held prior to the imposition of the measure.
2. Without prejudice to the provisions of the preceding paragraph, if the Parties do not reach a satisfactory solution in the consultations to determine the compensation, the Party proposing to adopt the measure shall be entitled to do so and the affected Party may impose measures having equivalent trade effects to those of the measure adopted, within a maximum period of 60 days from the application of the safeguard measure.
3. The commitments modified by the exporting Party shall be reestablished at the end of the application of the safeguard measure, in accordance with the preference negotiated in this Treaty, and it shall be as if the benefits had not been suspended.
Article 6-17. Notification.
1. The Parties shall notify each other:
a) The intention to initiate an investigation, in accordance with articles 6-03 or 6-05. To this effect, the main characteristics of the request shall be informed, in a duly documented form, such as:
(i) the name(s) of the applicant(s) and the reasons that lead them to claim that they are representative of the domestic industry;
(ii) a clear and complete description of the good involved, including its tariff classification and current tariff treatment;
(iii) import data that provide the basis that such merchandise is being imported in increasing quantities, either in absolute or relative terms;
(iv) the data that the applicant took into consideration to prove the existence of serious damage or threat of serious damage; and
(v) the period for holding consultations prior to commencement shall not be less than 10 (ten) days.
b) The initiation of the investigation procedure in accordance with articles 6-03 or 6-05. To that end, information shall be provided within a maximum period of 10 (ten) days from the publication in the official publication of the initiation of the investigation procedure, including the main characteristics of the facts under investigation, such as:
(i) the name(s) of the applicant(s) and the reasons that lead them to claim that they are representative of the domestic industry;
(ii) a clear and complete description of the good subject to the procedure, including its tariff classification, and the tariff treatment in force;
(iii) import data that provide the basis that such merchandise is being imported in increasing quantities, either in absolute or relative terms;
(iv) the data taken into consideration to prove the existence of serious harm or threat of serious harm;
(v) the time limit for the holding of procedural consultations; and
(vi) the period within which interested parties may present evidence and make written submissions, so that these may be taken into consideration during the investigation.
c) The application of a provisional safeguard measure in accordance with the provisions of Article 6-06(1). Said application shall be reported no later than 5 (five) days after the adoption of the measure, with express indication of the main characteristics of the facts, including the evidence that generated the need for the provisional safequard, with precise indication of the goods subject to the same, including their tariff classification, the term within which the interested parties may submit evidence and present their arguments in writing, so that they may be taken into consideration during the investigation, as well as the proposed date for holding the consultations referred to in Article 6-18 (1) and (2).
d) The intention to apply or extend a safeguard measure. Such intention shall provide information about:
(i) evidence of serious injury or threat of serious injury caused by the increase in subject imports;
(ii) the precise description of the good in question (including its tariff classification);
(iii) the description of the safeguard measure proposed or adopted;
(iv) the effective date and duration thereof,
(v) the criteria and objective information demonstrating that the conditions established in this Chapter for the application of a safeguard measure to the other Party are met, where appropriate;
(vi) the time limit for consultations to determine compensation; and
(vii) in the case of an extension of a safeguard measure, evidence shall also be provided that the domestic industry concerned is in the process of readjustment.
2. The notifications referred to in this Article shall be made through the competent authorities of the Parties. During any stage of the procedure, the notified Party may request from the other Party such additional information as it deems necessary, observing the rules with respect to confidential information.
Article 6-18. Consultations.
1. The initiation of an investigation pursuant to this chapter may only be carried out after the pre-initiation consultations referred to in Article 6-17(a)(v), which shall have as their main objective the mutual knowledge of the facts, the exchange of opinions and, eventually, the clarification of the problem raised.
2. The main purpose of the consultations of the procedure referred to in Article 6-17(b)(v) shall be the exchange of information and conciliation to reach a solution.
3. Notwithstanding the provisions of paragraph 1 of this Article and Article 6-19, the Parties may apply a provisional measure in accordance with Article 6-06 (1), without having held consultations prior to initiation or to determine compensation, provided that consultations are offered within 10 days of the imposition of the measure.
Article 6-19. Extension.
The application or extension of a safeguard measure under this Chapter may only be carried out after the consultations to determine the compensation referred to in Article 6-17(d)(vi) of this Chapter, the principal objective of which shall be to reach an understanding to maintain a level of concessions substantially equivalent to those existing under this Agreement. Notwithstanding the foregoing, safeguard measures may be applied when consultations cannot be carried out due to impediment of the Party to whom due notice has been given.
Annex 6-01. Competent Authority
For the purposes of this chapter, the term "competent authority" shall mean:
a) in the case of Mexico, the Ministry of Economy, or its successor; and
b) in the case of Uruguay, the Ministry of Economy and Finance, or its successor.
Chapter VII. UNFAIR INTERNATIONAL TRADE PRACTICES
Article 7-01. Definitions.
For the purposes of this chapter, the following definitions shall apply:
Antidumping Agreement: Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, which is part of the WTO Agreement,
ASCM: Agreement on Subsidies and Countervailing Measures, which is part of the WTO Agreement;
competent authority: the "competent authority" of a Party, as defined in Annex 7-01 (Competent Authority);
countervailing duty: antidumping duties and countervailing duties, as the case may be;
official dissemination bodies: "official dissemination bodies" of a Party, as referred to in Annex 7. 01.1 (Official Broadcasting Organs);
interested party: the producers, importers and exporters of the good subject to investigation, the government of the exporting Party, as well as the legal or juridical persons having a direct interest in the investigation in question;
final determination: determination by means of which it is decided whether or not the imposition of definitive countervailing duties is appropriate;
resolution of initiation: determination that formally declares the initiation of the investigation; and
preliminary determination: determination by which it is decided whether or not to continue the investigation with the imposition or not of preliminary countervailing duties.
Article 7-02. General Provisions.
The Parties reject all unfair international trade practices and recognize that they are condemnable when they cause or threaten to cause material injury to an existing domestic industry in the territory of a Party or if they materially retard the establishment of a domestic industry. They also recognize the need to eliminate export subsidies not permitted by the WTO and other domestic policies that cause distortions to trade in goods between the Parties.
Article 7-03. Determination of the Existence of Dumping or Subsidies.
The importing Party, in accordance with its legislation, this Agreement, the Antidumping Agreement, and the ASCM, may establish and apply countervailing duties in the event that situations arise in which, through an objective examination based on positive evidence:
a) the existence of imports is determined:
(i) under conditions of dumping; or
(ii) of goods that have received export subsidies, including subsidies other than export subsidies, that adversely affect the conditions of normal competition; and
b) the existence of injury or threat of injury to the domestic industry of identical or similar goods in the importing Party or the significant retardation in the creation of such industry, as a result of such imports of identical or similar goods from another Party, is proven.
Article 7-04. Export Subsidies.
Upon entry into force of this Agreement, neither Party may maintain or introduce subsidies for the export of goods to the territory of the other Party as set forth in Article 3 of the ASCM.
Article 7-05. National Legislation.
The Parties shall apply their legislation on unfair intemational trade practices in accordance with the procedures established in the normative instruments referred to in Article 7-03 and shall conduct investigations through their respective competent authorities.
Article 7-06. Procedure.
When a Party has received a duly documented request, and before initiating, ex officio or at the request of a party, an investigation for dumping or subsidies for imports from the other Party, it shall proceed as soon as possible to make the notification prescribed in Article 5.5 of the Antidumping Agreement. In the case of subsidies, it shall offer consultations prior to the initiation of the investigation
Article 7-07. Publication.
1. The Parties shall publish in their official organs of dissemination all determinations made by the competent investigating authority on an investigation and shall notify the other Party, in writing and directly, in a timely manner and within reasonable time limits that guarantee the principles of legality and due process.
2. Each Party shall publish the following resolutions in its respective official organ of diffusion:
a) the initiation, preliminary determination when countervailing duties are imposed, and the final determination of the investigation proceeding;
b) declaring the administrative investigation concluded:
(i) by reason of commitments with the exporting Party or with the exporters, as the case may be;
(ii) due to commitments arising from conciliatory hearings; or
(iii) for any other reason.
c) those that reject the initiation of the investigation, and d) those by which the withdrawals of the complainants are accepted.
Article 7-08. Notifications and Deadlines.
1. Each Party shall communicate the resolutions referred to in this Chapter directly to its importers and to the exporters of the other Party of which it is aware, to the government of the exporting Party, and to the diplomatic mission of the exporting Party accredited in the territory of the Party conducting the investigation. Likewise, concrete actions shall be taken to identify and locate the interested parties in the procedure in order to guarantee the exercise of the right of defense.
2. Parallel and simultaneously to the aforementioned official communications, the enforcement authority shall send the resolutions directly to all interested foreign parties and to the enforcement authority of the other Party, within two (2) days following the day in which the resolutions are made public. The time limits foreseen in the investigations shall be counted from the official communications.
3. The notice of initiation resolution shall contain, at least, the following information:
a) the deadlines and place for the presentation of arguments, evidence and other documents;
b) the description of the product under investigation and its tariff classification;
c) the period under investigation;
d) the names or trade names and addresses of known foreign exporters and, if applicable, foreign governments; and
e) the name, address, e-mail address, telephone number and fax number of the office where information can be obtained, consultations can be made and the file derived from the investigation can be reviewed.
4. With the notification, exporters will be sent a copy of the respective resolution, the public version of the request for initiation of the investigation and its annexes, and the questionnaires that will be used by the competent investigating authority or, if applicable, the minimum information required by the latter, as well as the description of the form in which it must be submitted.
5. The Party shall grant the interested parties of which it has knowledge, a period of no less than 25 working days from the initiation of the investigation, in order for them to appear and make their views known.
The Commission shall grant the interested parties a term of 25 business days for the same purposes, counted as of the date the preliminary resolution becomes effective.
6. The competent authority may grant or reject a request for an extension of the deadline to provide information, provided that it has been submitted in writing 5 (five) days prior to the expiration of the established deadline, for which it shall take into account the following:
a) the time available to conduct the investigation and make the necessary determinations, including the time limits established in national laws, regulations and programs governing the conduct of the investigation in question, and whether the information may be considered at a later stage of the investigation;
b) the extension(s) of time granted during the investigation;
c) the ability of the party from whom information is sought to respond to the information questionnaire, in light of the nature and scope of the information requested, including the resources, personnel and technological capacity available to the party;
d) the exceptional burdens faced by the party from whom information is sought in searching for, identifying and/or compiling the required information;
e) the fact that the party requesting the extension has provided a partial response to the questionnaire, or has previously provided information requested in the same investigation, although the absence of a partial response does not in itself constitute adequate grounds for rejecting a request;
f) unforeseen circumstances affecting the party's ability to provide the required information within the required timeframe; and
g) the fact that extensions of time have been granted to other parties for similar reasons at the same stage of the investigation.
7. The decision to grant or reject a request for an extension of time to provide information shall be made promptly and, if the request is rejected, the party making the request shall be informed of the reason for the rejection.
8. These same elements will be evaluated to grant or reject extensions requested by any interested party for the presentation of arguments, information and additional or complementary evidence.
9. The authorities, once the established deadlines have expired and, if applicable, the extensions granted, will only admit information and evidence that is submitted as supervening evidence and this circumstance is demonstrated, provided that it is submitted before the closing of the investigation or the conclusion of the investigation. The authorities may require the interested parties to comply with less demanding requirements than those previously established, provided that they are applied equally to all interested parties.
Article 7-09. Contents of the Resolutions.
The initial, preliminary and final resolutions shall contain, at least, the following:
a) the name of the applicant;
b) the description of the imported good subject to the procedure 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 legal and factual considerations that led the authority to initiate an investigation or to impose an antidumping duty; and
e) the legal arguments, data, facts or circumstances that support and motivate the resolution in question.
Article 7-10. Review of Countervailing Duties.
Annually at the request of a party and at any time ex officio, the final countervailing duties may be reviewed by the competent authority upon a change of circumstances in the market of the importing Party and the export market.
Article 7-11. Validity of the Measures.
Definitive countervailing duties shall be abolished when, after five (5) years from the date of their imposition, no interested party has requested their review, nor has the competent authority initiated such review ex officio.
Article 7-12. Technical Information Meetings.
1. The competent authority of the importing Party, upon request of the interested parties, shall hold technical information meetings in order to disclose the methodology used by the competent authority to determine the dumping margins and subsidy calculations, as well as the injury and causality arguments of the preliminary and final determinations.
2. The request referred to in paragraph 1 must be submitted within 5 (five) business days following the publication of the respective resolution in the official organ of diffusion. The competent authority shall hold the meeting within 15 (fifteen) working days from the filing of the request.
Article 7-13. Hearings.
The investigating authority, upon written request by any of the interested parties, shall hold meetings, hearings and other proceedings for the purpose of affording them full opportunity to defend their interests or to agree on a mutually satisfactory solution.
Article 7-14. Public Hearings.
1. The competent authority shall hold a public hearing in which the interested parties may appear and question their counterparts regarding the information or evidence submitted during the investigation. Likewise, the competent authority may ask questions and request clarifications with respect to the information, evidence and arguments presented during the investigation procedure that it 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 allegations within a period of at least 8 (eight) days after the public hearing has been held. The pleadings shall consist of the presentation in writing of conclusions regarding the information and arguments provided in the investigation.
Article 7.15. Access to Information.
1. The Parties shall ensure that interested parties to an investigation shall have prompt and full access to the proceedings of other interested parties that are included in the file of the investigation in progress. To this end, each Party may use one of the following mechanisms: