(b) a Party communicates to it the receipt of a request for an opinion on a question of interpretation or application of this Agreement in a judicial or administrative proceeding of that Party.
2. The Party in whose territory the judicial or administrative proceeding takes place shall present the interpretation or response of the Commission in accordance with the procedures of that forum.
3. When the Commission fails to issue an interpretation or answer, any Party may submit its own opinion in the judicial or administrative proceedings, in accordance with the procedures of that forum.
Article 18.23. Rights of Individuals
No Party may grant a right of action under its law against another Party on the ground that a measure of the latter Party is inconsistent with this Agreement.
Article 18.24. Alternative Means of Dispute Resolution between Private Parties
1. To the fullest extent possible, each Party shall promote and facilitate arbitration and other alternative means of settling international commercial disputes between private parties in the free trade area.
2. To this end, each Party shall have appropriate procedures to ensure the observance of the International Arbitration Conventions it has ratified, and the recognition and enforcement of arbitral awards rendered in such disputes.
3. The Commission may establish an Advisory Committee on Private Commercial Disputes, composed of persons with expertise or experience in the resolution of private international commercial disputes. Once constituted, the Committee shall submit reports and recommendations of a general nature to the Commission on the existence, use and effectiveness of arbitration and other procedures for the settlement of disputes between private parties.
Annex 18.3. Nullification or Impairment
1. A Party may have recourse to the dispute settlement mechanism of this Chapter where, by virtue of the application of a measure of the other Party that does not contravene this Agreement, it considers that the benefits that it could reasonably have expected to receive from the application of such measure are nullified or impaired:
(a) Part Two (Trade in Goods);
(b) Part Three (Technical Barriers to Trade); or (c) Chapter 13 (Cross-Border Trade in Services).
2. No Party may invoke paragraph 1 of this Annex with respect to any measure subject to an exception under Article 19.1 (General Exceptions).
3. In determining the elements of nullification or impairment, the Parties may take into consideration the principles set forth in the jurisprudence of paragraph 1 (b) of Article XXIII of GATT 1994.
Chapter 19. EXCEPTIONS
Article 19.1. General Exceptions
1. The following Articles are incorporated into and form an integral part of this Agreement XX of GATT 1994 and its interpretative notes, mutatis mutandis, for purposes of:
(a) Chapters 3 (National Treatment and Market Access for Goods), 4 (Rules of Origin), 5 (Customs Procedures Relating to the Origin of Goods), 6 (Trade Facilitation), 7 (Safeguard Measures) and 8 (Antidumping and Countervailing Measures), except to the extent that any of their provisions apply to services or investment; and
(b) Chapters 9 (Sanitary and Phytosanitary Measures) and 10 (Technical Barriers to Trade), except to the extent that any of their provisions apply to services or investment.
2. Paragraphs (a), (b) and (c) of Article XIV of the GATS are incorporated into this Agreement and form an integral part thereof, mutatis mutandis, for the purposes of:
(a) Chapters 3 (National Treatment and Market Access for Goods), 4 (Rules of Origin), 5 (Customs Procedures Relating to the Origin of Goods), 6 (Trade Facilitation), 7 (Safeguard Measures) and 8 (Anti-dumping and Countervailing Measures), to the extent that any of their provisions apply to services;
(b) Chapters 9 (Sanitary and Phytosanitary Measures) and 10 (Technical Barriers to Trade), to the extent that any of their provisions apply to services; and
(c) Chapters 12 (Investment), 13 (Cross-Border Trade in Services), and 15 (Temporary Entry of Business Persons).
Article 19.2. National Security
Nothing In this Agreement shall be construed to mean:
(a) oblige a Party to provide or give access to information the disclosure of which it considers contrary to its essential security interests;
(b) prevent a Party from taking any measure it considers necessary to protect its essential security interests:
(i) concerning trade in armaments, munitions and war materiel and trade in transactions in goods, materials, services and technology carried out for the direct or indirect purpose of supplying a military institution or other defense establishment;
(ii) applied in times of war or in other cases of serious international tension; or
(iii) applied to national policies or international agreements on non- proliferation of nuclear weapons or other nuclear explosive devices;
(c) prevent a Party from taking action in fulfillment of its obligations under the United Nations Charter for the Maintenance of International Peace and Security; and
(d) prevent a Party from adopting or maintaining measures it considers necessary to preserve public order.
Article 19.3. Balance of Payments
1. Ifa Party experiences serious or serious difficulties in its balance of payments or its balance of payments is seriously threatened, it may adopt or maintain restrictive measures on trade in goods and services and on payments and capital movements, including those related to investment.
2. The Parties shall endeavor to avoid the application of the restrictive measures referred to in paragraph 1.
3. Restrictive measures adopted or maintained under this Article shall be non- discriminatory and of limited duration and shall not go beyond what is necessary to remedy the balance of payments situation or threat thereof and shall be in accordance with the terms of the WTO Agreement and consistent with the Articles of Agreement of the International Monetary Fund, as applicable.
4. When a Party adopts or maintains a measure under this Article, it shall, as soon as possible, notify the other Party.
Article 19.4. Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to furnish or give access to confidential information to another Party, the disclosure of which would impede the enforcement of its Constitution or laws, or which would be contrary to the public interest, or which would prejudice the legitimate commercial interest of public or private enterprises.
Article 19.5. Taxation
1. Except as provided in this Article, nothing in this Agreement shall apply to taxation measures.
2. Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention (1). In the event of any inconsistency between any such treaty and this Agreement, the former shall prevail to the extent of the inconsistency. In the case of a tax treaty between two (2) or more Parties, the competent authorities under that treaty shall have the sole responsibility for determining whether there is any inconsistency between this Agreement and that treaty.
3. Notwithstanding the provisions of paragraph 2:
(a) Article 3.3 (National Treatment) and such other provisions in this Agreement as are necessary to give effect to that Article shall apply to taxation measures to the same extent as Article Ill of GATT 1994; and
(b) Article 3.11 (Export Taxes), shall apply to tax measures.
4. For purposes of this Article, tax measures do not include: (a) a"customs duty" as defined in Chapter 2 (General Definitions); or (b) the measures listed in exceptions (b) and (c) of that definition.
5. Subject to the provisions of paragraph 2:
(a) Article 13.3 (National Treatment) shall apply to taxation measures on income, capital gains or taxable capital of enterprises, relating to the acquisition or consumption of specific services, except that nothing in this subparagraph shall prevent a Party from conditioning the receipt or continued receipt of an advantage relating to the acquisition or consumption of specific services on the requirement to supply the service in its territory; and
(b) Articles 12.5 (National Treatment) and 12.6 (Most-Favored-Nation Treatment); 13.3 (National Treatment) and 13.4 (Most-Favored-Nation Treatment); shall apply to all taxation measures, other than those relating to income, capital gains or taxable capital of corporations, as well as estate, inheritance and gift taxes, except that nothing in the provisions of the articles referred to in subparagraphs (a) and (b) above shall (b) shall apply to:
(i) any most-favored-nation obligation with respect to benefits granted by a Party pursuant to a tax treaty;
(ii) a non-conforming provision of any tax measure in effect;
(iii) the continuation or prompt renewal of a non-conforming provision of any tax measure in effect;
(iv) an amendment to a non-conforming provision of any existing tax measure, so long as such amendment does not, at the time it is made, reduce its degree of conformity with any of those articles;
(v) any new tax measure, aimed at ensuring the equitable and effective application and collection of taxes (as permitted by GATS Article XIV (d)) (2) ; or
(vi) a provision that conditions the receipt, or continued receipt, of an advantage in relation to contributions to, or income from, pension trusts or pension plans on the requirement that the Party maintain continuing jurisdiction over the pension trust or pension plan.
6. Subject to paragraph 2 and without prejudice to the rights and obligations of the Parties under paragraph 3, Article 12.9 (Performance Requirements) shall apply to taxation measures.
7. Article 12.8 (Expropriation and Compensation) and Article 12.18 (Submission of Claim) shall apply to a taxation measure that is alleged to be expropriatory or a breach of Chapter 12 (Investment). However, no investor may invoke Article 12.8 (Expropriation and Compensation) as a basis for a claim where it has been determined, in accordance with this paragraph, that the measure does not constitute an expropriation. An investor seeking to invoke Article 12.8 (Expropriation and Compensation) with respect to a taxation measure shall first submit the matter to the competent authorities of the claimant and respondent parties set out in Annex 19.5 at the time of giving notice of its intention to submit a claim to arbitration under Article 12.18 (Submission of Claim), in order for those authorities to determine whether the measure constitutes an expropriation. If the competent authorities do not agree to examine the matter or if, having agreed to examine the matter, they do not agree that the measure does not constitute an expropriation, within six (6) months after the matter has been submitted to them, the investor may submit its claim to arbitration, in accordance with Article 12.18 (Submission of Claim).
Annex 19.5. Competent Authorities
For the purposes of this Chapter: competent authorities means:
(a) with respect to the Republic of El Salvador, the Vice Minister of Finance;
(b) with respect to the Republic of Guatemala, the Vice Minister of Public Finance;
(c) with respect to the Republic of Honduras, the Undersecretary of Finance; and
(d) with respect to the Republic of Colombia, the Technical Vice-Minister of the Ministry of Finance and Public Credit;
or their successors.
Chapter 20. COOPERATION
Article 20.1. Objectives
The cooperation to be developed between the Parties shall have the following objectives:
(a) To contribute to the strengthening and establishment of trade, financial, technological and investment flows;
(b) enhancing the capacity of the public and private sectors to take advantage of the opportunities offered by this Treaty; and
(c) Promote a favorable environment for the development of MSMEs and the generation of exportable supply.
Article 20.2. Cooperative Actions
1. The Parties may initiate and implement cooperative projects and activities with the participation of experts and national and international institutions, as appropriate, to promote the achievement of the objectives and the fulfillment of their obligations under the terms of this Agreement.
2. The Parties shall develop an indicative work plan that reflects national priorities and shall make the necessary provisions for its fulfillment. This work plan shall be adjusted over time according to the needs of the Parties.
3. Cooperative projects and activities will be carried out taking into consideration:
(a) economic, environmental, geographic, social, cultural differences and legal systems among the Parties;
(b) national priorities agreed upon by the Parties;
(c) the advisability of not duplicating existing cooperation actions, seeking complementarity and coordination; and
(d) existing cooperation mechanisms.
4. The cooperation projects and activities agreed upon in this area will be integrated into the regular mechanisms of cooperation between the Parties, which have been defined in the basic cooperation agreements.
5. For the definition of projects and activities, the agencies involved and those technically responsible for cooperation will come to an agreement, and will follow up and evaluate them through the formal cooperation mechanisms.
6. Definitions of cooperation appearing in other Chapters of this Treaty shall be understood to be equally binding in this Treaty.
7. The projects and activities undertaken will be within the framework of non- reimbursable technical cooperation in both channels, to the extent of the capabilities of each Party, and will be governed in general terms by the principles of technical cooperation among developing countries (TCDC), without prejudice to the possibility of involving other sources of resources.
Article 20.3. Cooperation In Investor-State Disputes
In order to promote cooperation in training and adequate representation of the Parties in investor-State disputes, the Parties shall promote specific training, representation services and technical cooperation to act in conciliation or arbitration proceedings through the investment consultative mechanism or a similar regional or multilateral center providing such services.
Article 20.4. Exclusion from Dispute Settlement
This Chapter shall not be subject to the provisions of Chapter 18 (Dispute Settlement).
Annex 20.2. Indicative Work Plan for Cooperation between the Republic of El Salvador, the Republic of Guatemala, the Republic of Honduras, and the Republic of Colombia
1. The Parties draw up an indicative work plan in which the project proposals and activities prioritized by the Parties are set out.
2. The Parties have preliminarily defined, as high priority issues, those related to Technical Barriers to Trade, Sanitary and Phytosanitary Measures and MSMEs, which will be developed as described below:
I. Technical Barriers to Trade and Sanitary and Phytosanitary Measures
Activities (1)
(a) preparation, implementation and review of technical cooperation and institutional programs;
(b) promotion of bilateral exchange of institutional and regulatory information; and
(c) promotion of bilateral cooperation through the respective agencies for international and multilateral standards including metrology.
Projects
(a) promotion of cooperation to develop surveillance systems, including technical standards for food control and safety, effectiveness and registration of drugs and related products, in order to achieve equivalence of systems;
(b) technical assistance in inspection systems and good manufacturing, packing and packaging practices;
(c) technical assistance in the development of technical standards for ethnic products and quality systems; and
(d) exchange of experience on conformity assessment mechanisms for various sectors.
ll. Cooperation for MSMEs Activities
(a) Promote business alliances and the establishment of information networks that enable the development of MSMEs;
(b) promoting the adoption of new technologies among MSMEs to modernize their business management, expand their markets and facilitate compliance with their obligations; and
(c) to build a scenario of horizontal cooperation in the interval of intermediate groups, for the different levels in which the companies operate: networks, associative structures, cooperatives, strategic alliances, franchises, consortiums, joint investments and public and private investment promotion institutions.
Projects
(a) to support research and studies that expand, promote and facilitate the financing and operation of programs and projects to develop the competitiveness of MSMEs, in order to increase trade;
(b) support the improvement of the business environment, especially in terms of policies and regulations aimed at the competitive development of MSMEs;
(c) disseminate best practices in public policies for the promotion and development of the sector, where legislative developments, regulatory frameworks, initiatives for formality and other development instruments, particularly technological development and innovation centers and the promotion of entrepreneurship, are known and transferred to the regions;
(d) support the strengthening of MSME associations as valid interlocutors capable of interpreting both the interests of the companies they represent and those of the State itself, in addition to being the social legitimizers of policies and processes;
(e) promote systems that guarantee interconnectivity, which, in addition to improving the quality of life, will help MSMEs learn about opportunities for accessing markets. To this end, internships, technical and trade missions, sectoral meetings within the segment and joint missions to third countries should be promoted; and
(f) technical assistance for strengthening the policy evaluation system and support systems for MSMEs, among others.
3. In addition to the aforementioned priority issues, the Parties agree to develop the following activities:
I. Market Access Cooperation
(a) technical cooperation in the area of Market Access, with emphasis on floriculture and textiles, among others; and
(b) cooperation to optimize efficiency and competitiveness in logistics to improve market access conditions and strengthen information exchange mechanisms.
ll. Cooperation in Public Procurement
(a) strengthen the public sector's capacity to manage this issue with technical assistance on related issues; and
(b) strengthen information exchange mechanisms regarding the procedures for determining whether a supplier of one Party is eligible in the other Party.
lll. Cooperation in Foreign Trade Procedures and Business Development
(a) technical assistance and training for coordination and coordination among the various institutions, programs and projects that promote MSMEs;
(b) to develop and propose programs for the formalization and creation of new companies to promote the business development of the Parties;
(c) share experiences on instruments to support trade development among the Parties;
(d) exchange of information to strengthen the trade and development data bank and training in the management of market statistics;
(e) strengthening and training for the procedures of the agile window, in terms of expediting the registration of companies; and
(f) technical assistance in the development of customs information systems and border merchandise management.
IV. Cooperation in Trade Facilitation
(a) Exchanges of information and internships of officials and technicians in trade facilitation; and
(b) Technical assistance and training of human resources. V. Export Promotion and Market Intelligence Cooperation
(a) promotion of market research and commercial analysis, identification of market niches, strategies for better product access; and
(b) to carry out training activities such as seminars, forums, conferences, exchanges of experiences and business meetings.
Any country may accede to this Agreement subject to the terms and conditions agreed between that country and the Parties. The Agreement shall enter into force for that country on the thirtieth (30th) day after the date on which that country notifies that all its domestic legal requirements have been fulfilled.
Article 21.5. Denunciation
1. This Agreement may be denounced by any of the Parties by means of written notification addressed to the other Parties. In the event of denunciation by the Republic of Colombia vis-a-vis all the other Parties, the Treaty shall cease to be in force.
2. The denunciation shall take effect one hundred and eighty (180) days after receipt of the notification by the other Parties, notwithstanding that the Parties may agree on a different date.
3. With respect to covered investments admitted prior to the expiration of the period referred to in paragraph 2, its provisions shall remain in force with respect to such investments for an additional period of ten (10) years after such expiration.
Article 21.6. Provisional Application
Notwithstanding the provisions of Article 21.3, this Treaty may be applied provisionally by the Republic of Colombia, in accordance with its constitutional requirements, from the date of signature until the time of its definitive entry into force. Provisional application shall also cease at such time as the Republic of Colombia notifies the other Parties of its intention not to become a Party to the Treaty or of its intention to suspend provisional application.
Article 21.7. Evolutionary Clause
1. The Parties agree on their interest in deepening their trade relations through the development of this Agreement, taking into account the experience derived from its implementation and its effects on trade. To this effect, the Parties decide to initiate a negotiation process on market access _ within three (3) years following the entry into force of the Agreement, including tariff and non-tariff measures, as well as the applicable rules of origin and any other element that may be necessary to achieve the proposed objectives.
2. For those products that are moved from the Exclusion category to a relief category, if necessary, at the request of one of the Parties, a special safeguard mechanism will be negotiated.
Article 21.8. Transitory Provisions
Notwithstanding the provisions of Article 21.3 (2), importers may request the application of Partial Scope Agreements No. 5, 8 and 9 signed in 1984 between the Republic of Colombia and the Republics of Guatemala, El Salvador and Honduras, respectively, for a period of thirty (30) days counted as of the entry into force of this Agreement. For these effects, the certificates of origin issued in accordance with the respective Partial Scope Agreement, must have been completed prior to the entry into force of this Agreement, be in force and be enforceable until the indicated term.
Conclusion
Attachments
Annex I. Existing Measures - Explanatory Notes
1. A Party's Schedule to this Annex sets forth, in accordance with Articles 12.12 (Non-Conforming Measures) and 13.7 (Non-Conforming Measures), a Party's existing measures that are not subject to some or all of the obligations imposed by:
(b) Articles 12.6 (Most-Favored-Nation Treatment) or 13.4 (Most-Favored-Nation Treatment);