Article 14.1. Definitions
For the Purposes of this Chapter:
authentication means the process or act of establishing the identity of a party to an electronic communication or transaction or ensuring the integrity of an electronic communication;
electronic means means the use of computerized processing;
carrier medium means any physical object designed primarily for use in storing a digital product by any method now known or later developed and from which a digital product can be perceived, reproduced or communicated, directly or indirectly, and includes, but is not limited to, an optical medium, floppy disk or magnetic tape;
digital products means computer programs, text, video, images, sound recordings and other products that are digitally encoded; (1) and
electronic transmission or electronically transmitted means the transfer of digital products using any electromagnetic or photonic means.
Article 14.2. General Provisions
1. The Parties recognize the economic growth and opportunity that electronic commerce generates, the importance of avoiding obstacles to its use and development, and the applicability of WTO rules to measures affecting electronic commerce.
2. For greater certainty, nothing in this Chapter shall prevent a Party from imposing internal taxes or other internal charges on domestic sales of digital products, provided that such taxes or charges are imposed in a manner consistent with this Agreement.
Article 14.3. Electronic Provision of Services
For greater certainty, the Parties affirm that measures affecting the supply of a service through the use of an electronic medium are within the scope of the obligations contained in the relevant provisions of Chapters 12 (Investment) and 13 (Cross-Border Trade in Services) and subject to any exceptions or non-conforming measures set out in this Agreement, which are applicable to such obligations.
Article 14.4. Digital Goods
1. No Party may establish customs duties, tariffs, or other charges in connection with the import or export of digital products by means of electronic transmission.
2. For purposes of determining the applicable customs duties, each Party shall determine the customs value of the imported carrier medium incorporating a digital good based solely on the cost or value of the carrier medium, regardless of the cost or value of the digital good stored on the carrier medium.
No Party shall accord less favorable treatment to some digital products transmitted electronically than that accorded to other like digital products transmitted electronically:
(a) on the basis that:
(i) the digital products receiving less favorable treatment are created, produced, published, published, stored, transmitted, hired, commissioned, or otherwise made available for the first time on commercial terms outside its territory; or
(ii) the author, performer, producer, manager, or distributor of such digital products is a person of another Party or of a non-Party; or
(b) otherwise provide protection for other similar digital products that are created, produced, published, stored, transmitted, hired, commissioned or otherwise made available for the first time on commercial terms in its territory. (2)
4. No Party shall accord less favorable treatment to digital products transmitted electronically:
(a) that are created, produced, published, published, stored, transmitted, contracted, commissioned or otherwise made available for the first time on commercial terms in the territory of the other Party than it accords to similar digital products transmitted electronically that are created, produced, published, stored, transmitted, contracted, commissioned or otherwise made available for the first time on commercial terms in the territory of a non-Party; or (b) that are created, produced, published, stored, transmitted, contracted, commissioned or otherwise made available for the first time on commercial terms in the territory of a non-Party.
(b) whose author, performer, producer, manager or distributor is a person of the other Party than it grants to similar electronically transmitted digital products whose author, performer, producer, manager or distributor is a person of a non-Party.
5. Paragraphs 3 and 4 do not apply to any non-conforming measure under Articles 12.12 (Non-Conforming Measures) and 13.7 (Non-Conforming Measures).
Article 14.5. Transparency
Each Party shall publish or otherwise make publicly available its laws, regulations and other measures of general application that relate to electronic commerce.
Article 14.6. Consumer Protection
1. The Parties recognize the importance of maintaining and adopting transparent and effective measures to protect consumers from fraudulent and deceptive commercial practices when conducting transactions through electronic commerce.
2. The Parties recognize the importance of cooperation between national consumer protection agencies in activities related to cross-border electronic commerce in order to strengthen consumer protection.
Article 14.7. Authentication and Digital Certificates
No Party may adopt or maintain legislation on electronic authentication that would prevent the parties from having the opportunity to establish before judicial or administrative bodies that the electronic transaction complies with any legal requirements established by the legislation of each Party with respect to authentication.
Article 14.8. Cooperation
Taking into consideration the global nature of electronic commerce, the Parties recognize the importance of:
(a) working together to overcome the obstacles faced by small and medium- sized companies in the use of e-commerce;
(b) share information and experiences on e-commerce laws, regulations and programs, including those related to data privacy, consumer confidence, cybersecurity, electronic signatures, intellectual property rights and electronic forms of government;
(c) work to maintain cross-border information flows as an essential element of a dynamic environment for electronic commerce;
(d) encouraging the development by the private sector of self-regulatory methods, including codes of conduct, model contracts, guidelines and compliance mechanisms that encourage electronic commerce; and
(e) actively participate in international forums, both at the hemispheric and multilateral levels, to promote the development of electronic commerce.
Chapter 15. TEMPORARY ENTRY OF BUSINESS PEOPLE
Article 15.1. Definitions
1. For the purposes of this Chapter:
business activities means those legitimate activities of a commercial nature created and operated for the purpose of making a profit in the marketplace. It does not include the possibility of obtaining employment or wages or remuneration from a source of labor in the territory of a Party;
labor certification means the procedure carried out by the competent administrative authority to determine whether a national of a Party, who intends to enter temporarily the territory of another Party, displaces national labor in the same branch of employment or significantly impairs labor conditions therein;
temporary entry means the entry of a business person of one Party into the territory of the other Party, without the intention of establishing permanent residence;
national means a "national" as defined in Annex 2.1 (Country-Specific Definitions) of Chapter 2 (General Definitions);
person means a natural person;
business person means a national engaged in the trade of goods or supply of services, or in investment activities; and
recurrent practice means a practice carried out by the immigration authorities of a Party repeatedly during a representative period prior to and immediately following the implementation of the practice.
2. For purposes of Annex 15.4:
executive functions means those assigned within an organization, under which the person has primarily the following responsibilities:
(a) directing the management of the organization or a relevant component or function thereof;
(b) establish the policies and objectives of the organization, component or function; or
(c) receive general supervision or direction only from senior management, the organization's board of directors or management council, or the organization's shareholders;
managerial functions means those assigned within an organization, under which the person has primarily the following responsibilities:
(a) to direct the organization or an essential function within the organization;
(b) supervise and control the work of other professional employees, supervisors or managers;
(c) have the authority to hire and fire, or recommend such actions, as well as other actions with respect to the management of personnel being directly supervised by that person and perform functions at a higher level within the organizational hierarchy or with respect to the function for which he or she is responsible; or
(d) execute actions at his or her discretion with respect to the day-to-day operation of the function over which that person has authority; and
functions involving specialized knowledge means those involving special knowledge of the organization's merchandise, services, research, equipment, techniques, management of the organization or its interests and their application in international markets, or an advanced level of knowledge or experience in the organization's processes and procedures.
Article 15.2. General Principles
1. This Chapter reflects the preferential trade relationship between the Parties, as well as the mutual desire of the Parties to facilitate the temporary entry of persons related to trade in goods, services and investment on a basis of reciprocity and transparency. The Parties further recognize that the achievement of the foregoing objectives shall occur within the framework of their need to protect the domestic labor market and permanent employment in their respective territories.
2. Nothing in this Chapter applies to measures adopted or maintained affecting nationals seeking access to the labor market of the Parties, nor to measures relating to nationality, residence or employment on a permanent basis.
Article 15.3. General Obligations
1. Each Party shall apply the measures relating to the provisions of this Chapter in accordance with Article 15.2 and, in particular, shall apply them in a manner that expeditiously to avoid undue delay or prejudice to trade in goods and services, or to investment activities covered by this Agreement.
2. For greater certainty, nothing in this Chapter shall be construed to prevent the Parties from applying immigration measures necessary to protect the integrity of their borders and to ensure the orderly movement of persons across their borders, provided that such measures are not applied in a manner that unduly delays or impairs trade in goods or services or the conduct of investment activities in accordance with this Agreement.
Article 15.4. Temporary Entry Authorization
1. In accordance with the provisions of this Chapter, including those contained in Annex 15.4, each Party shall authorize the temporary entry of business persons who comply with other applicable measures relating to public health and safety, as well as those relating to national security.
2. A Party may, in accordance with its legislation, deny temporary entry to a business person when his temporary entry would adversely affect his business:
(a) the settlement of any labor dispute in progress at the place where she is or will be employed; or
(b) employment of any person involved in such a conflict.
3. Where a Party refuses temporary entry pursuant to paragraph 2, that Party shall, at the request of the person concerned, inform in writing the reasons for the refusal.
4. Each Party shall limit the amount of the fees for processing applications for temporary entry to the approximate cost of the services rendered.
5. The authorization of temporary entry under this Chapter does not replace the requirements for the exercise of a profession or activity in accordance with the specific regulations in force in the territory of the Party authorizing the temporary entry.
6. Nothing in this Chapter shall be construed to prevent a Party from requiring, as a precondition for authorizing the temporary entry of a business person, that such person obtain a visa or equivalent document prior to entry. The Parties shall consider the possibility of avoiding or eliminating visa or equivalent document requirements (1).
Article 15.5. Provision of Information
1. In addition to the provisions of Article 16.3 (Publication), each Party shall:
(a) provide another Party with information material to enable it to become acquainted with the measures it adopts with respect to this Chapter; and
(b) no later than one (1) year after the date of entry into force of this Agreement, prepare, publish and make available, both in its own territory and in the territory of the other Party, a consolidated document containing material explaining the requirements for temporary entry under this Chapter, so that business persons of the other Party may become acquainted with them.
2. Each Party shall compile, maintain and make available to the other Party, information regarding the granting of temporary entry authorizations to business persons of the other Party who have been issued immigration documentation in accordance with this Chapter. This collection shall include information for each authorized category.
Article 15.6. Implementation
The Parties shall consult at least once a year, with the participation of the competent authorities, to review the implementation of this Chapter and to consider other matters of mutual interest affecting the temporary entry of business persons.
Article 15.7. Settlement of Disputes
1. Disputes arising between the Parties arising out of the interpretation and application of this Chapter shall be subject to the dispute settlement mechanism provided for in Chapter 18 (Dispute Settlement). A Party may not initiate dispute settlement proceedings with respect to a denial of temporary entry authorization under this Chapter unless:
(a) the matter concerns a recurring practice (2) ; and
(b) the business person concerned has exhausted the administrative remedies available under the laws of the other Party with respect to that particular matter.
2. The appeals mentioned in paragraph (b) shall be considered exhausted when the competent authority has not issued a final resolution within a period of six (6) months from the initiation of the administrative proceeding and the resolution has not been delayed for reasons attributable to the business person concerned.
Article 15.8. Relationship to other Chapters
1. Except as provided in this Chapter, nothing in this Agreement shall impose any obligation on the Parties with respect to their migration measures.
2. Nothing in this Chapter shall be construed to impose any obligations or commitments with respect to the provisions of other chapters of this Agreement.
Annex 15.4. Provisions Applicable to Temporary Entry
Section A. Business Visitors
1. Each Party shall authorize temporary entry and issue supporting documentation to the business person who intends to carry out any business activity mentioned in Appendix 1 of this Chapter, prior to compliance with the immigration measures in force applicable to temporary entry, without requiring more than those established therein, and which it exhibits:
(a) proof of nationality of a Party;
(b) documentation indicating the purpose of your entry and certifying that you will undertake such activities; and
(c) proof of the international character of the business activity proposed to be undertaken and that the person does not intend to enter the local labor market.
2. Each Party shall stipulate that a business person meets the requirements set forth in paragraph 1 (c), when it demonstrates that:
(a) the principal source of remuneration for that activity is outside the territory of the Party authorizing temporary entry; and
(b) the principal place of business and where most of its profits are actually earned is outside the territory of the Party authorizing temporary entry.
3. For the purposes of paragraph 2, each Party shall normally accept a statement as to the principal place of business and the place where profits are earned. Where the Party requires additional verification, it may consider as sufficient evidence a letter from the company or business association legally constituted and in operation stating these circumstances.
4. Subject to Article 15.4(6), no Party may: (a) require, as a condition for authorizing temporary entry under paragraph 1, prior approval procedures, petitions, proof of labor certification or other procedures of similar effect; or
(b) impose or maintain numerical restrictions on temporary entry in accordance with paragraph 1.
Section B. Merchants and Investors
1. Each Party shall authorize temporary entry and issue supporting documentation to the business person exercising supervisory, executive or specialized knowledge functions, provided that he/she complies with the immigration measures in force applicable to temporary entry and intends to:
(a) to engage in significant trade in goods or services, principally between the territory of the Party of which the business person is a national and the territory of the Party from which entry is sought; or
(b) establish, develop, manage, or provide key technical advice or services in supervisory, executive, or critical skill functions, to carry out or manage an investment in which the person or his or her company has committed, or is in the process of committing, a significant amount of capital.
2. Subject to Article 15.4(6), no Party may:
(a) require proof of labor certification or other procedures of similar effect, as a condition for authorizing temporary entry under paragraph 1; or
(b) impose or maintain numerical restrictions in connection with temporary entry pursuant to paragraph 1.
Section C. Transfers of Personnel Within an Enterprise
1. Each Party shall authorize temporary entry and issue supporting documentation to a business person employed by an enterprise of another Party for a period of not less than one (1) year immediately preceding the date of application for temporary entry into that other Party who intends to perform managerial, executive or specialized knowledge functions in that enterprise, in its parent company or in one of its subsidiaries or affiliates, provided that he or she complies with the immigration measures in force applicable to temporary entry.
2. Subject to Article 15.4(6), no Party may:
(a) requiring proof of labor certification or other procedures of similar effect as a condition for authorizing temporary entry under paragraph 1; or
(b) impose or maintain numerical restrictions in connection with temporary entry pursuant to paragraph 1.
Section D. Professionals (3)
1. Each Party shall authorize temporary entry and issue supporting documentation to a person who intends to carry out activities at the professional level by providing professional services on the basis of an existing contract between that person and a national or an enterprise of the other Party, when the person, in addition to complying with the current immigration requirements applicable to temporary entry, exhibits:
(a) proof of nationality of a Party; and
(b) documentation that the person will undertake such activities and stating the purpose of entry.
2. Subject to Article 15.4 (6) neither Party may:
(a) require prior approval procedures, petitions, proof of labor certification or others of similar effect, as a condition for authorizing temporary entry under paragraph 1; or
(b) impose or maintain numerical restrictions in connection with the temporary movement pursuant to paragraph 1.
3. Notwithstanding paragraph 2, a Party may require documentation attesting that such person possesses the minimum academic qualifications relevant to the supply of professional services established in its legislation.
4. A professional shall be understood to be a national of one of the Parties whose specialized occupation requires:
(a) the theoretical and practical application of a body of specialized knowledge; and
(b) obtaining a post-secondary degree in the respective field, which requires four or more years of post-secondary study as a minimum requirement for the exercise of the respective occupation.
Appendix 1. Business Visitors
For the purposes of this Chapter, business visitors include the following activities:
Research
- Technical, scientific and statistical researchers conducting research independently or for an enterprise established in the territory of the other Party.
Cooperation and consultation
- Business people attending cooperative activities or consulting with business associates.
Cultivation, manufacturing and production
- Purchasing and production personnel, at management level, who carry out commercial operations for an enterprise established in the territory of the other Party.
Marketing
- Market researchers and analysts who conduct research or analysis independently or for a company established in the territory of the other Party.
- Trade show and promotional staff attending trade conventions.
Sales
- Sales representatives and sales agents who take orders or negotiate contracts for goods and services for an enterprise established in the territory of the other Party, but do not deliver the goods or provide the services.
- Buyers making purchases for an enterprise established in the territory of the other Party.
Distribution
- Customs brokers providing advisory services to facilitate the import or export of goods.
After-sales services
- Installation, repair, maintenance, and supervisory personnel who have the technical expertise essential to fulfill the seller's contractual obligation; and who provide services or train workers to provide such services pursuant to a warranty or other service contract related to the sale of commercial or industrial equipment or machinery, including computer software purchased from an enterprise established outside the territory of the Party from which temporary entry is sought during the term of the warranty or service contract.
General Services
- Consultants conducting business activities at the cross-border trade in services level.
- Management and supervisory personnel engaged in business operations for an enterprise established in the territory of the other Party.