1. The Parties affirm their rights and obligations under the WTO Agreement on Technical Barriers to Trade (TBT Agreement), part of Annex 1A of the WTO Agreement.
2. The Parties shall use the relevant dispute settlement provisions of the WTO Agreement for any formal disputes related to their rights and obligations under the WTO TBT Agreement.
3. The Parties shall develop programs for technical cooperation aimed at achieving full and effective compliance with the obligations set forth in the WTO TBT Agreement. To this end, the Parties shall encourage their competent authorities in the area of standards, including metrology, to undertake the following activities for the purpose of strengthening processes and systems in this field:
(a) the promotion of bilateral institutional and regulatory information exchange and technical cooperation; and
(b) the promotion of bilateral coordination by appropriate agencies in multilateral and international fora on standards, including metrology.
4. The Parties shall include bilateral cooperation and coordination issues related to standards, including metrology, on the agenda of the Coordinators on a regular basis.
Article IX.7. Government Procurement
1. The Parties agree to cooperate with the aim of achieving further liberalisation of public procurement markets and greater transparency in public procurement.
2. The Parties recognize that technical cooperation can contribute to achieving these aims and agree to cooperate in exploring potential approaches to such technical cooperation through existing mechanisms, particularly with respect to the application of information technology to government procurement.
3. The Parties shall, within 3 years after the entry into force of this Agreement, meet to review this Article.
Chapter X. Temporary Entry
Article X.1. Temporary Entry
1. The Parties recognize that there is a growing importance of investment and services related to trade in goods. In accordance with their applicable laws and regulations, they shall facilitate the temporary entry of:
(a) nationals who are intra-company transferees (managers, executives, specialists) and business visitors;
(b) nationals who are providing after-sales services directly related to the exportation of goods by an exporter of that same Party into the territory of the other Party; or
(c) spouses or common-law partners and children of nationals described in (a) above.
2. With a view to developing and deepening their relations under this Agreement, the Parties agree that within 3 years of the date of entry into force, they will review developments related to temporary entry, and consider the need for further disciplines in this area.
3. No later than 1 year after the date of entry into force of this Agreement, the Parties shall make available explanatory material regarding the requirements for temporary entry under this Article in such a manner as to enable citizens of the other Party to become acquainted with them.
4. For the purposes of this Chapter:
after-sales services include those provided by persons repairing and servicing, supervising installers, and setting up and testing commercial or industrial (including computer software) equipment, provided the services are being performed as part of an original or extended sales or lease agreement, warranty, or service contract. "Setting up" does not include hands-on installation generally performed by construction or building trades. After-sales services also includes persons providing familiarization or training sessions to potential users;
business visitors are short-term visitors who do not intend to enter the labour market of the Parties, but seek entry to engage in activities such as buying or selling of goods or services, negotiating contracts, conferring with colleagues, or attending conferences;
national means a natural person who is a citizen of a Party; and
temporary entry means the right to enter and remain for the period authorized.
Part Five. COMPETITION POLICY
Chapter XI. Competition Policy
Article XI.1. Purpose
The purposes of this Chapter are to ensure that the benefits of trade liberalization are not undermined by anticompetitive activities and to promote cooperation and coordination between the competition authorities of the Parties.
Article XI.2. General Principles
1. Each Party shall adopt or maintain measures to proscribe anticompetitive activities and shall take appropriate enforcement action pursuant to those measures, recognizing that such measures will enhance the fulfillment of the objectives of this Agreement.
2. Each Party shall ensure that the measures referred to in paragraph 1, and the enforcement actions pursuant to those measures, are applicable on a non-discriminatory basis.
3. For the purpose of this Chapter, anticompetitive activities include, but are not limited to, the following:
(a) anticompetitive agreements, anticompetitive concerted practices or anticompetitive arrangements by competitors to fix prices, make rigged bids (collusive tenders), establish output restrictions or quotas, or share or divide markets by allocating customers, suppliers, territories or lines of commerce;
(b) anticompetitive practices by an enterprise or group of enterprises that has market power in a relevant market or group of markets; and
(c) mergers or acquisitions with substantial anticompetitive effects;
unless such activities are excluded, directly or indirectly, from the coverage of a Party's own laws or authorized in accordance with those laws. All such exclusions and authorizations shall be transparent and should be periodically assessed by each Party to determine whether they are necessary to achieve their overriding policy objectives.
4. Each Party shall ensure that:
(a) the measures it adopts or maintains to proscribe anticompetitive activities, which implement the obligations set out in this Chapter, whether occurring before or after the coming into force of the Agreement, are published or otherwise publicly available; and
(b) any modifications to any such measures occurring after the coming into force of this Agreement are notified to the other Party within 60 days, with advance notification to be provided where possible.
5. Each Party shall establish or maintain an impartial competition authority that is:
(a) authorized to advocate pro-competitive solutions in the design, development and implementation of government policy and legislation; and
(b) independent from political interference in carrying out enforcement actions and advocacy activities.
6. Each Party shall ensure that its judicial and quasi-judicial proceedings to address anticompetitive activities are fair and equitable, and that in such proceedings, persons that are directly affected:
(a) are provided with written notice when a proceeding is initiated;
(b) are afforded an opportunity, prior to any final action in the proceeding, to have access to relevant information, to be represented, to make submissions, including any comments on the submissions of other persons, and to identify and protect confidential information; and
(c) are provided with a written decision on the merits of the case.
7. Each Party shall ensure that, where there are any judicial or quasi-judicial proceedings to address anticompetitive activities, an independent domestic judicial or quasi-judicial appeal or review process is available to persons subject to any final decision arising out of those proceedings.
Article XI.3. Cooperation
1. The Parties recognize the importance of cooperation and coordination of enforcement actions including notification, consultation and exchange of information.
2. Subject to Article X14, and unless providing notice would harm its important interests, each Party shall notify the other Party with respect to its enforcement actions that may affect that other Party's important interests, and shall give full and sympathetic consideration to possible ways of fulfilling its enforcement needs without harming those interests.
3. For the purpose of this Chapter, enforcement actions that may affect the important interests of the other Party and therefore will ordinarily require notification include those that:
(a) are relevant to enforcement actions of the other Party;
(b) involve anticompetitive activities, other than mergers or acquisitions, carried out in whole or in part in the territory of the other Party and that may be significant for that Party;
(c) involve mergers or acquisitions in which one or more of the enterprises involved in the transaction, or an enterprise controlling one or more of the enterprises to the transaction, is incorporated or organized under the laws of the other Party or one of its provinces;
(d) involve remedies that expressly require or prohibit conduct in the territory of the other Party or are otherwise directed at conduct in that territory; or
(e) involve the seeking of information located in the territory of the other Party, whether by personal visit by officials of a Party or otherwise, except with respect to telephone contacts with a person in the territory of the other Party where that person is not the subject of enforcement action and the contact seeks only an oral response on a voluntary basis.
4. Notification will ordinarily be given as soon as the competition authority of a Party becomes aware that the notifiable circumstances pursuant to paragraphs 2 and 3 are present.
5. In accordance with their laws, the Parties may enter into additional cooperation and mutual legal assistance agreements, arrangements, or both in order to further the objectives of this Chapter.
Article XI.4. Confidentiality
Nothing in this Chapter shall require the provision of information by a Party or its competition authority contrary to its laws. The Parties shall, to the fullest extent possible, maintain the confidentiality of any information communicated to it in confidence by the other Party. Any information communicated shall only be used for the purpose of the enforcement action for which it was communicated.
Article XI.5. Technical Assistance
In order to achieve the objectives of this Chapter, the Parties agree that it is in their common interest to work together in technical assistance initiatives related to competition policy, measures to proscribe anticompetitive activities and enforcement actions.
Article XI.6. Consultations
1. The Parties shall consult either at least once every two years, or pursuant to Article XIIL.4 (Cooperation) on the written request of a Party, to consider matters regarding the operation, implementation, application or interpretation of this Chapter and to review the Parties' measures to proscribe anti-competitive activities and the effectiveness of enforcement actions. Each Party shall designate one or more officials, including an official from each competition authority, to be responsible for ensuring that consultations, when required, occur in a timely manner.
2. If the Parties do not arrive at a mutually satisfactory resolution of a matter arising from the written request of a Party made under paragraph 1, they shall refer the matter to the Commission for consideration under Article XIII. 1.2(c) (The Free Trade Commission).
3. Except as provided in paragraph 1, neither Party may have recourse to dispute settlement under this Agreement or to any kind of arbitration for any matter arising under this Chapter.
Article XI.7. Definitions
For purposes of this Chapter, these terms shall have the following definitions:
anticompetitive activities means any conduct or transaction that may be subject to penalties or other relief under:
(a) for Canada, the Competition Act, R.S.C. 1985, c. C-34;
(b) for Costa Rica the "Ley de Promoción de la Competencia y Defensa Efectiva del Consumidor" (Act for the Promotion of Competition and Effective Defense of the Consumer) Act No.7472 of 20 December 1994;
as well as any amendments thereto, and such other laws or regulations as the Parties may jointly agree to be applicable for purpose of this Chapter.
competition authority(ies) means:
(a) for Canada, the Commissioner of Competition.
(b) for Costa Rica, the "Comisión para promover la competencia" (Commission for the Promotion of Competition) established under the Act No.7472 of 20 December 1994, or its successor.
enforcement action(s) means any application of measures referred to in paragraph 1 of Article XI .2 by way of investigation or proceeding.
measures means laws, regulations, procedures, practices or administrative rulings of general application.
Part Six. ADMINISTRATIVE AND INSTITUTIONAL PROVISIONS
Chapter XII. Publication, Notification and Administration of Laws
Article XII.1. Contact Points
Each Party shall designate, within 60 days of the entry into force of the Agreement, a contact point to facilitate communications between the Parties on any matter covered by this Agreement. On the request of the other Party, the contact point shall identify the office or official responsible for the matter and assist, as necessary, in facilitating communication with the requesting Party.
Article XII.2. Publication
1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application respecting any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other Party to become acquainted with them.
2. To the extent possible, each Party shall:
(a) publish in advance any such measure that it proposes to adopt; and
(b) provide interested persons and the other Party a reasonable opportunity to comment on such proposed measures.
Article XII.3. Notification and Provision of Information
1. To the maximum extent possible, each Party shall notify the other Party of any proposed or actual measure that the Party considers might materially affect the operation of this Agreement or otherwise substantially affect the other Party's interests under this Agreement.
2. On request of the other Party, a Party shall promptly provide information and respond to questions pertaining to any actual or proposed measure, whether or not the other Party has been previously notified of that measure.
3. Any notification or information provided under this Article shall be without prejudice as to whether the measure is consistent with this Agreement.
Article XII.4. Administrative Proceedings
With a view to administering in a consistent, impartial and reasonable manner all measures of general application affecting matters covered by this Agreement, each Party shall ensure that in its administrative proceedings applying measures referred to in Article XII.2 to particular persons, goods or services of the other Party in specific cases:
(a) wherever possible, persons of the other Party that are directly affected by a proceeding are provided reasonable notice, in accordance with domestic procedures, when a proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated and a general description of any issues in controversy;
(b) such persons are afforded a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when permitted by time, the nature of the proceeding, and the public interest; and
(c) its procedures are in accordance with domestic law.
Article XII.5. Review and Appeal
1. Each Party shall establish or maintain judicial, quasi-judicial or administrative tribunals or procedures for the purpose of the prompt review and, where warranted, correction of final administrative actions regarding matters covered by this Agreement. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.
2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceeding are provided with the right to:
(a) areasonable opportunity to support or defend their respective positions; and
(b) adecision based on the evidence and submissions of record or, where required by domestic law, the record compiled by the administrative authority.
3. Each Party shall ensure, subject to appeal or further review as provided in its domestic law, that such decisions shall be implemented by, and shall govern the practice of, the offices or authorities with respect to the administrative action at issue.
Article XII.6. Definitions
For purposes of this Chapter: administrative ruling of general application means an administrative ruling or interpretation that applies to all persons and fact situations that fall generally within its ambit and that establishes a norm of conduct but does not include:
(a) a determination or ruling made in an administrative or quasi-judicial proceeding that applies to a particular person, good or service of the other Party in a specific case; or
(b) a ruling that adjudicates with respect to a particular act or practice.
Chapter XIII. Institutional Arrangements and Dispute Settlement Procedures
Section I. Institutions
Article XIII.1. The Free Trade Commission
1. The Parties hereby establish the Free Trade Commission, comprising cabinet-level representatives of the Parties or their designees,
2, The Commission shall:
(a) supervise the implementation of this Agreement;
(b) oversee its further elaboration; and
(c) consider any other matter that may affect the operation of this Agreement.
3. The Commission may:
(a) adopt binding interpretations of this Agreement;
(b) seek the advice of non-governmental persons or groups;
(c) take such other action in the exercise of its functions as the Parties may agree; and
(d) modify in fulfillment of the objectives of this Agreement:
(i) the schedule of a Party contained in Annex III.3.2 (Tariff Elimination), with the purpose of adding one or more goods excluded in the Tariff Elimination Schedule;
(ii) the phase-out periods established in Annex III.3.2 (Tariff Elimination), with the purpose of accelerating the tariff reduction;
(iii) the rules of origin established in Annex III.1 (Textiles and Apparel Goods) and Annex IV.1 (Specific Rules of Origin);
(iv) the Uniform Regulations on Customs Procedures,
4. The modification referred to in paragraph 3(d) will be implemented by the Parties in conformity with Annex XIII. 1.4 (Implementation of the Modifications Approved by the Commission).
5. The Commission may establish committees, subcommittees or working groups taking into consideration any recommendation of the Coordinators, Except where specifically provided for in this Agreement, the committees, subcommittees and working groups shall work under a mandate recommended by the Coordinators and approved by the Commission,
6. The Commission will establish its rules and procedures. All decisions of the Commission shall be taken by mutual agreement.
7. The Commission shall normally convene once a year in regular session. Regular sessions of the Commission shall be chaired alternately by each Party.
Article XIII.2. The Free Trade Coordinators
1. Each Party shall appoint a Free Trade Coordinator.
2. The Free Trade Coordinators shall:
(a) supervise the work of all committee, subcommittees and working groups established under this Agreement;
(6) recommend to the Commission the establishment of such committees, subcommittees and working groups as they consider necessary to assist the Commission;
(c) follow up with any decisions taken by the Commission, as appropriate;
(d) receive notifications pursuant to this Agreement; and
(e) consider any other matter that may affect the operation of this Agreement as mandated by the Commission.
3. The Coordinators shall meet as often as required.
4. Each Party may request in writing at any time that a special meeting of the Coordinators be held, Such a meeting shall take place within 30 days of receipt of the request,
Article XIII.3. The Secretariat
1, The Commission shall establish and oversee a Secretariat comprising national Sections.
2. Each Party shall:
(a) establish a permanent office of its Section;
(b) be responsible for:
(i) the operation and costs of its Section; and
(ii) the remuneration and payment of expenses of panelists and members of committees, subcommittees and working groups established under this Agreement, as set out in Annex XIII.3.2 (Remuneration and Payment of Expenses);
(c) designate an individual to serve as Secretary for its Section, who shall be responsible for its administration and management; and
(d) notify the Commission of the location of its Section's office.
3. The Secretariat shall:
(a) provide administrative assistance to panels established under this Chapter, in accordance with procedures established pursuant to Article XIII.12; and
(b) as the Commission may direct:
(i) support the work of other committees, subcommittees and working groups established under this Agreement; and
(ii) otherwise facilitate the operation of this Agreement,